<PAGE>
Exhibit 10.3
SPRINT PCS
MANAGEMENT AGREEMENT
BETWEEN
WIRELESSCO, L.P.
SPRINT SPECTRUM L.P.
AND
INDEPENDENT WIRELESS ONE CORPORATION
Dated as of February 9, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. MANAGER.................................................................. 2
1.1 Hiring of Manager.................................................. 2
1.2 Program Requirements............................................... 2
1.3 Vendor Purchase Agreements......................................... 2
1.4 Interconnection.................................................... 3
1.5 Seamlessness....................................................... 3
1.6 Forecasting........................................................ 3
1.7 Financing.......................................................... 3
1.8 Ethical Conduct and Related Covenants.............................. 3
2. BUILD-OUT OF NETWORK..................................................... 3
2.1 Build-out Plan..................................................... 3
2.2 Compliance with Regulatory Rules................................... 4
2.3 Exclusivity of Service Area........................................ 4
2.4 Restriction........................................................ 4
2.5 Coverage Enhancement............................................... 4
2.6 Purchase of Assets by Manager...................................... 6
2.7 Microwave Relocation............................................... 6
2.8 Determination of pops.............................................. 6
3. PRODUCTS AND SERVICES; IXC SERVICES...................................... 6
3.1 Sprint PCS Products and Services................................... 6
3.2 Other Products and Services........................................ 6
3.3 Cross-selling with Sprint.......................................... 7
3.4 IXC Services....................................................... 7
3.5 Resale of Products and Services.................................... 7
3.5.1 Mandatory Resale of Products and Services................. 7
3.5.2 Voluntary Resale of Products and Services................. 7
3.6 Non-competition.................................................... 8
3.7 Right of Last Offer................................................ 8
4. MARKETING AND SALES ACTIVITIES........................................... 9
4.1 Sprint PCS National or Regional Distribution Program
Requirements.................................................... 9
4.1.1 Territorial Limitations on Manager's Distribution
Activities............................................. 9
4.1.2 Settlement of Equipment Sales............................ 9
4.1.3 Use of Third-Party Distributors.......................... 9
4.2 Sprint PCS National Accounts Program Requirements.................. 10
4.3 Sprint PCS Roaming and Inter Service Area Program Requirements..... 10
4.4 Pricing............................................................ 10
4.5 Home Service Area.................................................. 11
5. USE OF BRANDS............................................................ 11
5.1 Use of Brands...................................................... 11
5.2 Conformance to Marketing Communications Guidelines................. 11
5.3 Joint Marketing With Third Parties................................. 11
5.4 Prior Approval of Use of Brands.................................... 12
5.5 Duration of Use of Brand........................................... 12
6. ADVERTISING AND PROMOTION................................................ 12
6.1 National Advertising and Promotion................................. 12
6.2 In-Territory Advertising and Promotion............................. 12
6.3 Review of Advertising and Promotion Campaigns...................... 13
6.4 Public Relations................................................... 13
7. SPRINT PCS TECHNICAL PROGRAM REQUIREMENTS................................ 13
</TABLE>
<PAGE>
<TABLE>
<S> <C>
7.1 Conformance to Sprint PCS Technical Program Requirements......... 13
7.2 Establishment of Sprint PCS Technical Program Requirements....... 14
7.3 Handoff to Adjacent Networks..................................... 14
8. SPRINT PCS CUSTOMER SERVICE............................................. 14
8.1 Compliance With Sprint PCS Customer Service Program
Requirements..................................................... 14
9. SPRINT PCS PROGRAM REQUIREMENTS......................................... 14
9.1 Program Requirements Generally................................... 14
9.2 Amendments to Program Requirements............................... 14
9.3 Manager's Right to Request Review of Changes..................... 15
9.4 Sprint PCS' Right to Implement Changes........................... 16
9.5 Rights of Inspection............................................. 16
9.6 Manager's Responsibility to Interface with Sprint PCS............ 16
10. FEES.................................................................... 16
10.1 Fees and Payments................................................ 16
10.1.1 Fee Based on Collected Revenues......................... 16
10.1.2 Payment of Universal Service Funds...................... 16
10.1.3 Inter Service Area Fees................................. 17
10.1.4 Interconnect Fees....................................... 17
10.1.5 Outbound Roaming Fees................................... 17
10.1.6 Reimbursements.......................................... 17
10.2 Monthly True Up.................................................. 17
10.3 Taxes............................................................ 17
10.4 Collected Revenues Definition.................................... 18
10.5 Late Payments.................................................... 19
10.6 Setoff Right If Failure To Pay Amounts Due....................... 19
11. TERM; TERMINATION; EFFECT OF TERMINATION................................ 19
11.1 Initial Term..................................................... 19
11.2 Renewal Terms.................................................... 19
11.2.1 Non-renewal Rights of Manager........................... 19
11.2.1.1 Manager's Put Right............................ 19
11.2.1.2 Manager's Purchase Right....................... 20
11.2.2 Non-renewal Rights of Sprint PCS........................ 20
11.2.2.1 Sprint PCS' Purchase Right..................... 21
11.2.2.2 Sprint PCS' Put Right.......................... 21
11.2.3 Extended Term Awaiting FCC Approval..................... 21
11.3 Events of Termination............................................. 21
11.3.1 Termination of License.................................. 22
11.3.2 Breach of Agreement: Payment of Money Terms............. 22
11.3.3 Breach of Agreement: Other Terms........................ 22
11.3.4 Regulatory Considerations............................... 22
11.3.5 Termination of Trademark License Agreements............. 22
11.3.6 Financing Considerations................................ 23
11.3.7 Bankruptcy of a Party................................... 23
11.4 Effect of an Event of Termination................................. 23
11.5 Manager's Event of Termination Rights and Remedies................ 24
11.5.1 Manager's Put Right..................................... 25
11.5.2 Manager's Purchase Right................................ 25
11.5.3 Manager's Action for Damages or Other Relief............ 26
11.6 Sprint PCS' Event of Termination Rights and Remedies.............. 26
11.6.1 Sprint PCS' Purchase Right.............................. 26
11.6.2 Sprint PCS' Put Right................................... 26
11.6.3 Sprint PCS' Right to Cause A Cure....................... 27
11.6.4 Sprint PCS' Action for Damages or Other Relief.......... 28
11.7 Determination of Entire Business Value............................ 28
11.7.1 Appointment of Appraisers............................... 28
11.7.2 Manager's Operating Assets.............................. 28
11.7.3 Entire Business Value................................... 29
11.7.4 Calculation of Entire Business Value.................... 29
11.8 Closing Terms and Conditions...................................... 30
</TABLE>
<PAGE>
<TABLE>
<S> <C>
11.9 Contemporaneous and Identical Application........................ 30
12. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION; INSURANCE.................. 30
12.1 Books and Records................................................ 30
12.1.1 General................................................. 30
12.1.2 Audit................................................... 30
12.1.3 Contesting an Audit..................................... 30
12.2 Confidential Information......................................... 31
12.3 Insurance........................................................ 32
12.3.1 General................................................. 32
12.3.2 Waiver of Subrogation................................... 32
12.3.3 Certificates of Insurance............................... 32
13. INDEMNIFICATION......................................................... 33
13.1 Indemnification by Sprint PCS.................................... 33
13.2 Indemnification by Manager....................................... 33
13.3 Procedure........................................................ 33
13.3.1 Notice.................................................. 33
13.3.2 Defense by Indemnitor................................... 33
13.3.3 Defense by Indemnitee................................... 34
13.3.4 Costs................................................... 34
14. DISPUTE RESOLUTION...................................................... 34
14.1 Negotiation...................................................... 34
14.2 Unable to Resolve................................................ 34
14.3 Attorneys and Intent............................................. 35
14.4 Tolling of Cure Periods.......................................... 35
15. REPRESENTATIONS AND WARRANTIES.......................................... 35
15.1 Due Incorporation or Formation; Authorization of Agreements...... 35
15.2 Valid and Binding Obligation..................................... 36
15.3 No Conflict; No Default.......................................... 36
15.4 Litigation....................................................... 36
16. REGULATORY COMPLIANCE................................................... 36
16.1 Regulatory Compliance............................................ 36
16.2 FCC Compliance................................................... 36
16.3 Marking and Lighting............................................. 38
16.4 Regulatory Notices............................................... 38
16.5 Regulatory Policy-Setting Proceedings............................ 38
17. GENERAL PROVISIONS...................................................... 38
17.1 Notices.......................................................... 38
17.2 Construction..................................................... 38
17.3 Headings......................................................... 38
17.4 Further Action................................................... 38
17.5 Counterpart Execution............................................ 38
17.6 Specific Performance............................................. 39
17.7 Entire Agreement; Amendments..................................... 39
17.8 Limitation on Rights of Others................................... 39
17.9 Waivers.......................................................... 39
17.9.1 Waivers--General........................................ 39
17.9.2 Waivers--Manager........................................ 39
17.9.3 Force Majeure........................................... 39
17.10 Waiver of Jury Trial............................................. 40
17.11 Binding Effect................................................... 40
17.12 Governing Law.................................................... 40
17.13 Severability..................................................... 40
17.14 Limitation of Liability.......................................... 40
17.15 No Assignment; Exceptions........................................ 40
17.15.1 General................................................. 40
17.15.2 Assignment Right of Manager to Financial Lender......... 41
17.15.3 Change of Control Rights................................ 41
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
17.15.4 Right of First Refusal.................................. 42
17.15.5 Transfer of Sprint PCS Network.......................... 43
17.16 Provision of Services by Sprint Spectrum......................... 43
17.17 Number Portability............................................... 43
17.18 Disclaimer of Agency............................................. 43
17.19 Independent Contractors.......................................... 43
17.20 Expense.......................................................... 43
17.21 General Terms.................................................... 44
17.22 Conflicts with Other Agreements.................................. 44
17.23 Survival Upon Termination........................................ 44
17.24 Announced Transaction............................................ 44
17.25 Additional Terms and Provisions.................................. 44
17.26 Master Signature Page............................................ 44
17.27 Agent Authorization.............................................. 45
</TABLE>
<PAGE>
SPRINT PCS MANAGEMENT AGREEMENT
This SPRINT PCS MANAGEMENT AGREEMENT is made February 9, 1999, between
WirelessCo, L.P., a Delaware limited partnership, Sprint Spectrum L.P., a
Delaware limited partnership, and Independent Wireless One Corporation, a
Delaware Corporation (but not any Related Party) ("Manager"). The definitions
for this agreement are set forth on the "Schedule of Definitions."
RECITALS
A. Sprint Spectrum L.P., a Delaware limited partnership, WirelessCo. L.P., a
Delaware limited partnership, SprintCom, Inc., a Kansas corporation, American
PCS Communications, LLC, a Delaware limited liability company, APC PCS, LLC, a
Delaware limited liability company, PhillieCo Partners I, L.P., a Delaware
limited partnership, PhillieCo, L.P., a Delaware limited partnership, Cox
Communications PCS, L.P., a Delaware limited partnership, and Cox PCS License,
L.L.C., a Delaware limited liability company, hold and exercise, directly or
indirectly, control over licenses to operate wireless services networks.
B. The entity or entities named in Recital A that execute this agreement
hold, directly or indirectly, the Licenses for the areas identified on the
Service Area Exhibit and are referred to in this agreement as "Sprint PCS."
Because this agreement addresses the rights and obligations of each license
holder with respect to each of its Licenses, each reference in this agreement to
"Sprint PCS" refers to the entity that owns, directly or indirectly, the License
referred to in that particular instance or application of the provision of this
agreement. If Sprint Spectrum does not own the License, it will provide on
behalf of Sprint PCS most or all of the services required under this agreement
to be provided by Sprint PCS.
C. The Sprint PCS business was established to use the Sprint PCS Network, a
nationwide wireless services network, to offer seamless, integrated voice and
data services using wireless technology. The Sprint PCS Network offers the
services to customers under the Brands.
D. This agreement, therefore, includes provisions defining Manager's
obligations with respect to:
. The design, construction and management of the Service Area Network;
. Offering and promoting products and services designated by Sprint PCS
as the Sprint PCS Products and Services of the Sprint PCS Network;
. Adherence to Program Requirements established by Sprint PCS to ensure
seamless interoperability throughout the Sprint PCS Network and
uniform and consistent quality of product and service offerings;
. Adherence to Customer Service Program Requirements established by
Sprint PCS to ensure consistency in interactions with customers
(including billing, customer care, etc.); and
. Adherence to Program Requirements relating to the marketing, promotion
and distribution of Sprint PCS Products and Services.
E. The Sprint PCS Network is expanding with the assistance of "managers"
(companies such as Manager that manage Service Area Networks that offer Sprint
PCS Products and Services under a license owned by
<PAGE>
Sprint PCS or one of the entities named in Recital A) and "affiliates"
(companies that manage Service Area Networks that offer Sprint PCS Products and
Services under a license owned by the affiliate).
F. Manager wishes to enter into this agreement to help construct, operate,
manage and maintain for Sprint PCS a portion of the Sprint PCS Network in the
Service Area. Sprint PCS has determined that permitting Manager to manage a
portion of the Sprint PCS Network in accordance with the terms of this agreement
will facilitate Sprint PCS' expansion of fully digital, wireless coverage under
the License and will enhance the wireless service for customers of Sprint PCS.
G. All managers of a portion of the business of Sprint PCS, including
Manager, must construct facilities and operate in accordance with Program
Requirements established by Sprint PCS with respect to certain aspects of the
development and offering of wireless products and services and the presentation
of the products and services to customers, to establish and operate the Sprint
PCS Network successfully by providing seamless, integrated voice and data
services, using wireless technology.
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. MANAGER
1.1 Hiring of Manager. Sprint PCS hires Manager:
(a) to construct and manage the Service Area Network in compliance with
the License and in accordance with the terms of this agreement;
(b) to distribute continuously during the Term the Sprint PCS Products
and Services and to establish distribution channels in the Service Area;
(c) to conduct continually during the Term advertising and promotion
activities in the Service Area (including mutual decisions to "go dark", with
respect to advertising and promotion activities, for reasonable periods of
time); and
(d) to manage that portion of the customer base of Sprint PCS that has
the NPA-NXXs assigned to the Service Area Network.
Sprint PCS has the right to unfettered access to the Service Area Network to
be constructed by Manager under this agreement. The fee to be paid to Manager by
Sprint PCS under Section 10 is for all obligations of Manager under this
agreement.
1.2 Program Requirements. Manager must adhere to the Program Requirements
established by Sprint PCS and as modified from time to time, to ensure uniform
and consistent operation of all wireless systems within the Sprint PCS Network
and to present the Sprint PCS Products and Services to customers in a uniform
and consistent manner under the Brands.
1.3 Vendor Purchase Agreements. Manager may participate in discounted
volume-based pricing on wireless-related products and services and in the
warranties Sprint PCS receives from its vendors, as is commercially reasonable
and to the extent permitted by applicable procurement agreements (e.g.,
agreements related to network infrastructure equipment, subscriber equipment,
interconnection, and collocation). Sprint PCS will use commercially reasonable
efforts to obtain for managers the same price Sprint PCS receives from vendors;
this does not prohibit Sprint PCS from entering into procurement agreements that
<PAGE>
do not provide managers with the Sprint PCS prices.
Manager must purchase subscriber and infrastructure equipment from a Sprint
PCS approved list of products, which will include a selection from a variety of
manufacturers. Where required, the products must include proprietary software
developed by the manufacturers for Sprint PCS or by Sprint PCS to allow seamless
interoperability in the Sprint PCS Network. Sprint PCS or the vendor may require
Manager to execute a separate license agreement for the software prior to
Manager's use of the software.
Manager may only make purchases under this Section 1.3 for items to be used
exclusively in the Service Area (e.g., Manager may not purchase base stations
under a Sprint PCS contract for use in a system not affiliated with Sprint PCS).
1.4 Interconnection. If Manager desires to interconnect a portion of the
Service Area Network with another carrier and Sprint PCS can interconnect with
that carrier at a lower rate, then to the extent permitted by applicable laws,
tariffs and contracts, Sprint PCS may arrange for the interconnection under its
agreements with the carrier and if it does so, Sprint PCS will bill the
interconnection fees to Manager.
1.5 Seamlessness. Manager will design and operate its systems, platforms,
products and services in the Service Area and the Service Area Network so as to
seamlessly interface them into the Sprint PCS Network.
1.6 Forecasting. Manager and Sprint PCS will work cooperatively to generate
mutually acceptable forecasts of important business metrics including traffic
volumes, handset sales, subscribers and Collected Revenues for the Sprint PCS
Products and Services. The forecasts are for planning purposes only and do not
constitute Manager's obligation to meet the quantities forecast.
1.7 Financing. The construction and operation of the Service Area Network
requires a substantial financial commitment by Manager. The manner in which
Manager will finance the build-out of the Service Area Network and provide the
necessary working capital to operate the business is described in detail on
Exhibit 1.7. Manager will allow Sprint PCS an opportunity to review before
filing any registration statement or prospectus or any amendment or supplement
thereto before distributing any offering memorandum or amendment or supplement
thereto, and agrees not to file or distribute any such document if Sprint PCS
reasonably objects in writing on a timely basis to any portion of the document
that refers to Sprint PCS, its Related Parties, their respective businesses,
this agreement or the Services Agreement.
1.8 Ethical Conduct and Related Covenants. Each party must perform its
obligations under this agreement in a diligent, legal, ethical, and professional
manner.
2. BUILD-OUT OF NETWORK
2.1 Build-out Plan. Manager will build-out the Service Area Network in the
Service Area in accordance with a Build-out Plan. Sprint PCS and Manager will
jointly develop each Build-out Plan, except the initial Build-out Plan and any
modifications, additions or expansions of the Build-out Plan will be subject to
prior written approval by Sprint PCS. Manager will report to Sprint PCS its
performance regarding the critical milestones included in the Build-out Plan on
a periodic basis as mutually agreed to by the parties, but no less frequently
than quarterly. The Build-out Plan and the Service Area Network as built must
comply with Sprint PCS Program Requirements and federal and local regulatory
requirements.
Sprint PCS approves the Build-out Plan in effect as of the date of this
agreement, which Build-out Plan is attached as Exhibit 2.1. Each new or amended
<PAGE>
Build-out Plan will also become part of Exhibit 2.1.
2.2 Compliance with Regulatory Rules. During the build-out of the Service
Area Network, Sprint PCS authorizes Manager to make all filings with regulatory
authorities regarding the build-out, including filings with the Federal Aviation
Administration, environmental authorities, and historical districts. Manager may
further delegate its duty under this Section 2.2 to a qualified site acquisition
company. Manager must ensure that a copy of every filing is given to Sprint PCS.
Manager must ensure that Sprint PCS is notified in writing of any contact by a
regulatory agency including the FCC with Manager or Manager's site acquisition
company regarding any filing. Sprint PCS has the right to direct any proceeding,
inquiry, dispute, appeal or other activity with a regulatory or judicial
authority regarding any filing made on behalf of Sprint PCS. Manager will amend,
modify, withdraw, refile and otherwise change any filing as Sprint PCS requires.
Notwithstanding the preceding sentences in this Section 2.2, and in conjunction
with Section 16, Sprint PCS is solely responsible for making any and all filings
with the FCC regarding the build-out. Manager will notify Sprint PCS of any
activity, event or condition related to the build-out that might require an FCC
filing.
2.3 Exclusivity of Service Area. Manager will be the only person or entity
that is a manager or operator for Sprint PCS with respect to the Service Area
and neither Sprint PCS nor any of its Related Parties will own, operate, build
or manage another wireless mobility communications network in the Service Area
so long as this agreement remains in full force and effect and there is no Event
of Termination that has occurred giving Sprint PCS the right to terminate this
agreement, except that:
(a) Sprint PCS may cause Sprint PCS Products and Services to be sold in
the Service Area through the Sprint PCS National Accounts Program Requirements
and Sprint PCS National or Regional Distribution Program Requirements;
(b) A reseller of Sprint PCS Products and Services may sell its
products and services in the Service Area so long as such resale is not contrary
to the terms and conditions of this agreement; and
(c) Sprint PCS and its Related Parties may engage in the activities
described in Sections 2.4(a) and 2.4(b) with Manager in the geographic areas
within the Service Area in which Sprint PCS or any of its Related Parties owns
an incumbent local exchange carrier as of the date of this agreement.
2.4 Restriction. In geographic areas within the Service Area in which Sprint
PCS or any of its Related Parties owns an incumbent local exchange carrier as of
the date of this agreement, Manager must not offer any Sprint PCS Products or
Services specifically designed for the competitive local exchange market ("fixed
wireless local loop"), except that:
(a) Manager may designate the local exchange carrier that is a Related
Party of Sprint PCS to be the exclusive distributor of the fixed wireless local
loop product in the territory served by the local exchange carrier, even if a
portion of its territory is within the Service Area; or
(b) Manager may sell the fixed wireless local loop product under the
terms and conditions specified by Sprint PCS (e.g., including designation by
Sprint PCS of an exclusive distribution agent for the territory).
This restriction exists with respect to a particular geographic area only so
long as Sprint PCS or its Related Party owns such incumbent local exchange
carrier.
Nothing in this Section 2.4 prohibits Manager from offering Sprint PCS
Products and Services primarily designed for mobile functionality. The
<PAGE>
restricted markets as of the date of this agreement are set forth on Exhibit
2.4.
2.5 Coverage Enhancement. Sprint PCS and Manager agree that maintaining a
high standard of customer satisfaction regarding network capacity and footprint
is a required element of the manager and affiliate programs. Sprint PCS intends
to expand network coverage to build all cells that cover at least 5,000 pops and
all interstate and major highways in the areas not operated by Manager or Other
Managers. Accordingly, Manager agrees to build-out New Coverage when directed by
Sprint PCS as set forth in this Section 2.5. Sprint PCS agrees not to require
any New Coverage build-out during the first two years of this Agreement, nor any
New Coverage that exceeds the capacity and footprint parameters that Sprint PCS
has adopted for all of its comparable markets.
Sprint PCS will give to Manager a written notice of any New Coverage within
the Service Area that Sprint PCS decides should be built-out. Such notice will
include an analysis completed by Sprint PCS demonstrating that such required
build-out should be economically advantageous to Manager. Such analysis will be
generated in good faith and will be based on then-currently available
information, however Sprint PCS makes no warranties or representations regarding
the accuracy of, nor will Sprint PCS be bound by, or guarantee the accuracy of,
such analysis. Manager must confirm to Sprint PCS within 90 days after receipt
of the notice that Manager will build-out the New Coverage and deliver to Sprint
PCS with such confirmation Manager's proposed amendment to the Build-out Plan
and a description of the manner and timing in which it will finance such build-
out.
If Manager confirms, within such 90-day period, its intention to build-out
the New Coverage, then Manager and Sprint PCS will diligently finalize an
amendment to the Build-out Plan and proceed as set forth in Sections 2.1 and
2.2. The amended Build-out Plan will contain critical milestones that provide
Manager a commercially reasonable period in which to construct and implement the
New Coverage. In determining what constitutes a "commercially reasonable period"
as used in this paragraph, the parties will consider several factors, including
local zoning processes and other legal requirements, weather conditions,
equipment delivery schedules, the need to arrange additional financing, and
other construction already in progress by Manager. Manager will construct and
operate the New Coverage in accordance with the terms of this Agreement, and the
New Coverage will be included in the Service Area Network for purposes of this
agreement.
If Manager fails to confirm, within such 90-day period, its intention to
build-out the New Coverage, declines to complete such build-out, or fails to
complete such build-out in accordance with the amended Build-out Plan, then an
Event of Termination will be deemed to have occurred under Section 11.3.3,
Manager will not have a right to cure such breach, and Sprint PCS may exercise
its rights and remedies under Section 11.2.2.1.
Notwithstanding the preceding paragraphs in this Section 2.5, the capacity
and footprint parameters contained in the amended Build-out Plan will not be
required to exceed the parameters adopted by Sprint PCS in building out all of
its comparable service areas, unless such build-out relates to an obligation
regarding the Service Area Network mandated by law. When necessary for reasons
related to new technical standards, new equipment or strategic reasons, Sprint
PCS can require Manager to build-out the New Coverage concurrently with Sprint
PCS' build-out, in which case Sprint PCS will reimburse Manager for its costs
and expenses if Sprint PCS discontinues its related build-out.
If Sprint PCS requires build-out of New Coverage that will:
(a) cause the Manager to spend an additional amount greater than 5%
of Manager's shareholder's equity or capital account plus Manager's long-term
<PAGE>
debt (i.e., notes that mature more than one year from the date issued), as
reflected on Manager's hooks; or
(b) cause the long-term operating expenses of Manager on a per unit
basis using a 10-year time frame to increase by more than 10% on a net present
value basis,
then Manager may give Sprint PCS a written notice requesting Sprint PCS to
reconsider the required New Coverage.
The Sprint PCS Vice President or the designee of the Sprint PCS Chief
Officer in charge of the group that manages the Sprint PCS relationship with
Manager will review Manager's request and render a decision regarding the New
Coverage. If after the review and decision by the Vice President or designee,
Manager is still dissatisfied, then Manager may ask that the Chief Officer to
whom the Vice President or designee reports review the matter. If Sprint PCS
still requires Manager to complete the New Coverage following the Chief
Officer's review, then if Manager and Sprint PCS fail to agree to an amended
Build-out Plan within 15 days after completion of the reconsideration process
described above in this paragraph or the end of the 90-day period described in
the second paragraph of this Section 2.5, whichever occurs first, then an Event
of Termination will be deemed to have occurred under Section 11.3.3, Manager
will not have a right to cure such breach, and Sprint PCS may exercise its
rights and remedies under Section 11.2.2.1.
2.6 Purchase of Assets by Manager. If Sprint PCS has assets located in the
Service Area that Manager could reasonably use in its construction of the
Service Area Network and if Sprint PCS is willing to sell such assets, then
Manager agrees to purchase from Sprint PCS and Sprint PCS agrees to sell to
Manager the assets in accordance with the terms and conditions of the asset
purchase agreement attached as Exhibit 2.6.
2.7 Microwave Relocation. Sprint PCS will relocate interfering microwave
sources in the spectrum in the Service Area to the extent necessary to permit
the Service Area Network to carry the anticipated call volume as set out in the
Build-out Plan. If the spectrum cleared is not sufficient to carry the actual
call volume then Sprint PCS will clear additional spectrum of its choosing to
accommodate the call volume. Sprint PCS may choose to clear spectrum one carrier
at a time. The parties will share equally all costs associated with clearing
spectrum under this Section 2.7.
2.8 Determination of pops. If any provision in this agreement requires the
determination of pops in a given area, then the pops will be determined using
the census block group pop forecast then used by Sprint PCS, except that a
different forecast will be used for any FCC filing and in preparing the Build-
out Plan if required by the FCC. Sprint PCS presently uses the forecast of
Equifax/NDS, but it may choose in its sole discretion to use another service
that provides comparable data.
3. PRODUCTS AND SERVICES; IXC SERVICES
3.1 Sprint PCS Products and Services. Manager must offer for sale, promote
and support all Sprint PCS Products and Services within the Service Area, unless
the parties otherwise agree in advance in writing. Within the Service Area,
Manager may only sell, promote and support wireless products and services that
are Sprint PCS Products and Services or are other products and services
authorized under Section 3.2. The Sprint PCS Products and Services as of the
date of this agreement are attached as Exhibit 3.1. Sprint PCS may modify the
Sprint PCS Products and Services from time to time in its sole discretion by
delivering to Manager a new Exhibit 3.1. If Sprint PCS begins offering
nationally a Sprint PCS Product or Service that is a Manager's Product or
Service, such Manager's Product or Service will become a Sprint PCS Product or
Service under this agreement.
<PAGE>
3.2 Other Products and Services. Manager may offer wireless products and
services that are not Sprint PCS Products and Services, on the terms Manager
determines, if the offer of the additional products and services:
(a) does not violate the obligations of Manager under this agreement;
(b) does not cause distribution channel conflict with or consumer
confusion regarding Sprint PCS' regional and national offerings of Sprint PCS
Products and Services;
(c) complies with the Trademark License Agreements; and
(d) does not materially impede the development of the Sprint PCS
Network.
Manager will not offer any products or services under this Section 3.2 that
are confusingly similar to Sprint PCS Products and Services. Manager must
request that Sprint PCS determine whether Sprint PCS considers a product or
service to be confusingly similar to any Sprint PCS Products and Services by
providing advance written notice to Sprint PCS that describes those products and
services that could be interpreted to be confusingly similar to Sprint PCS
Products and Services. If Sprint PCS fails to provide a response to Manager
within 30 days after receiving the notice, then the products and services are
deemed to create confusion with the Sprint PCS Products and Services and the
request therefore rejected. In rejecting any request Sprint PCS must provide the
reasons for the rejection. If the rejection is based on Sprint PCS' failure to
respond within 30 days and Manager requests an explanation for the deemed
rejection, then Sprint PCS must provide within 30 days the reasons for the
rejection.
3.3 Cross-selling with Sprint. Manager and Sprint and Sprint's Related
Parties may enter into arrangements to sell Sprint's services, including long
distance service (except those long distance services governed by Section 3.4),
Internet access, customer premise equipment, prepaid phone cards, and any other
services that Sprint or its Related Parties make available from time to time.
Sprint's services may be packaged with the Sprint PCS Products and Services.
If Manager chooses to resell the long distance services, Internet access or
competitive local telephone services including prepaid phone cards, of third
parties (other than Manager's Related Parties), Manager will give Sprint the
right of last offer to provide those services on the same terms and conditions
as the offer to which Manager is prepared to agree, subject to the terms of any
existing agreements Manager was subject to prior to execution of this agreement.
If Sprint sells Sprint PCS Products and Services in the Service Area,
Manager will provide such Sprint PCS Products and Services to such customers in
accordance with the terms and conditions of the Sprint PCS National or Regional
Distribution Program Requirements.
3.4 IXC Services. Manager must purchase from Sprint long distance telephony
services for the Sprint PCS Products and Services at wholesale rates. Long
distance telephone calls are those calls between the local calling area for the
Service Area Network and areas outside the local calling area. The local calling
area will be defined by mutual agreement of Sprint PCS and Manager. If the
parties cannot agree on the extent of the local calling area they will resolve
the matter through the dispute resolution process in Section 14. Any arrangement
must have terms at least as favorable to Manager (in all material respects) as
those offered by Sprint to any wholesale customer of Sprint in comparable
circumstances (taking into consideration volume, traffic patterns, etc.). If
Manager is bound by an agreement for these services and the agreement was not
made in anticipation of this agreement, then the requirements of this
<PAGE>
Section 3.4 do not apply during the term of the other agreement. If the other
agreement terminates for any reason then the requirements of this Section 3.4 do
apply.
3.5 Resale of Products and Services.
3.5.1 Mandatory Resale of Products and Services. Sprint PCS is subject
to FCC rules that require it to allow its service plans to be resold by a
purchaser of the service plan. Sprint PCS will not grant the purchaser of a
service plan the right to use any of the support services offered by Sprint PCS,
including customer care, billing, collection, and advertising, nor the right to
use the Brands. The reseller only has the right to use the service purchased.
Consequently, Manager agrees not to interfere with any purchaser of the Sprint
PCS Products or Services who resells the service plans in accordance with this
agreement and applicable law. Manager will notify purchaser that the purchaser
does not have a right to use the Brands or Sprint PCS, support services. In
addition, Manager will notify Sprint PCS if it reasonably believes a reseller of
retail service plans is using the support services or Brands.
3.5.2 Voluntary Resale of Products and Services. Sprint PCS may choose
to offer a resale product under which resellers will resell Sprint PCS Products
and Services under brand names other than the Brands, except Sprint PCS may
permit the resellers to use the Brands for limited purposes related to the
resale of Sprint PCS Products and Services (e.g., to notify people that the
handsets of the resellers will operate on the Sprint PCS Network). The resellers
may also provide their own support services (e.g., customer care and billing) or
may purchase the support services from Sprint PCS.
If Sprint PCS chooses to offer a voluntary resale product, it will adopt a
program that will be a Program Requirement under this agreement and that
addresses the manner in which Manager and Other Managers interact with the
resellers. Manager must agree to comply with the terms of the program, including
its pricing provisions, if Manager wants handsets of subscribers of resellers
with NPA-NXXs of Manager to be activated. Usage of telecommunications services
while in the Service Area by subscribers of resellers with NPA-NXXs from outside
the Service Area will be subject to the pricing provisions of the Sprint PCS
Roaming and Inter Service Area Program for roaming and inter service area
pricing between Manager and Sprint PCS unless Manager agrees in writing to
different pricing.
Except as required under the regulations and rules concerning mandatory
resale. Manager may not sell Sprint PCS Products and Services for resale unless
Sprint PCS consents to such sales in advance in writing.
3.6 Non-competition. Neither Manager nor any of its Related Parties may
offer Sprint PCS Products and Services outside of the Service Area without the
prior written approval of Sprint PCS.
Within the Service Area, Manager and Manager's Related Parties may offer,
market or promote telecommunications products or services only under the
following brands:
(a) products or services with the Brands;
(b) other products and services approved under Section 3.2;
(c) products or services with Manager's brand; or
(d) products or services with the brands of Manager's Related Parties.
except no brand of a significant competitor of Sprint PCS or its Related Parties
<PAGE>
in the telecommunications business may be used by Manager or Manager's Related
Parties on these products and services.
If Manager or any of its Related Parties has licenses to provide broadband
personal communication services outside the Service Area, neither Manager nor
such Related Party may utilize the spectrum to offer Sprint PCS Products and
Services without prior written consent from Sprint PCS. Additionally, when
Manager's customers from inside the Service Area travel or roam to other
geographic areas, Manager will route the customers' calls, both incoming and
outgoing, according to the Sprint PCS Network Roaming and Inter Service Area
Program Requirements, without regard to any wireless networks operated by
Manager or its Related Parties. For example, Manager will program the preferred
roaming list for handsets sold in the Service Area to match the Sprint PCS
preferred roaming list.
3.7 Right of Last Offer. Manager will offer to Sprint the right to make to
Manager the last offer to provide backhaul and transport services for call
transport for the Service Area Network, if Manager decides to use third parties
for backhaul and transport services rather than self-provisioning the services
or purchasing the services from Related Parties of Manager. Sprint will have a
reasonable time to respond to Manager's request for last offer to provide
backhaul and transport pricing and services, which will be no greater than 5
Business Days after receipt of the request for the services and pricing from
Manager.
If Manager has an agreement in effect as of the date of this agreement for
these services and the agreement was not made in anticipation of this agreement,
then the requirements of this Section 3.7 do not apply during the term of the
other agreement. If the other agreement terminates for any reason then the
requirements of this Section 3.7 do apply.
4. MARKETING AND SALES ACTIVITIES
4.1 Sprint PCS National or Regional Distribution Program Requirements.
During the term of this agreement, Manager must participate in any Sprint PCS
National or Regional Distribution Program (as in effect from time to time), and
will pay or receive compensation for its participation in accordance with the
terms and conditions of that program. The Sprint PCS National or Regional
Distribution Program Requirements in effect as of the date of this agreement are
attached as Exhibit 4.1.
4.1.1 Territorial Limitations on Manager's Distribution Activities.
Neither Manager nor any of its Related Parties will market, sell or distribute
Sprint PCS Products and Services outside of the Service Area, except:
(a) as otherwise agreed upon by the parties in advance in writing; or
(b) Manager may place advertising in media that has distribution
outside of the Service Area, so long as that advertising is intended by Manager
to reach primarily potential customers within the Service Area.
4.1.2 Settlement of Equipment Sales. Sprint PCS will establish a
settlement policy and process that will be included in the Sprint PCS National
or Regional Distribution Program Requirements to:
(a) reconcile sales of subscriber equipment made in the service areas
of Sprint PCS or Other Managers of Sprint PCS, that result in activations in the
Service Area; and
(b) reconcile sales of subscriber equipment made in the Service Area
that result in activations in service areas of Sprint PCS or Other Managers.
<PAGE>
In general, the policy will provide that the party in whose service area
the subscriber equipment is activated will be responsible for the payment of any
subsidy (i.e., the difference between the price paid to the manufacturer and the
suggested retail price for direct channels or the difference between the price
paid to the manufacturer and the wholesale price for third party retailers) and
for other costs associated with the sale, including logistics, inventory
carrying costs, direct channel commissions and other retailer compensation.
4.1.3 Use of Third-Party Distributors.
(a) Manager may request that Sprint PCS and a local distributor enter
into Sprint PCS' standard distribution agreement regarding the purchase from
Sprint PCS of handsets and accessories. Sprint PCS will use commercially
reasonable efforts to reach agreement with the local distributor. Sprint PCS may
refuse to enter into a distribution agreement with a distributor for any
reasonable reason, including that the distributor fails to pass Sprint PCS' then
current credit and background checks or the distributor fails to agree to the
standard terms of the Sprint PCS distribution agreement. Any local distributor
will be subject to the terms of the Trademark License Agreements or their
equivalent. Manager will report to Sprint PCS the activities of any local
distributor that Manager believes to be in violation of the distribution
agreement.
(b) Manager may establish direct local distribution programs in
accordance with the Sprint PCS National or Regional Distribution Program
Requirements, subject to the terms and conditions of the Trademark License
Agreements and the non-competition and other provisions contained in this
agreement. If Manager sells Sprint PCS handsets and accessories directly to a
local distributor:
(i) Sprint PCS has the right to approve or disapprove a
particular distributor,
(ii) Manager is responsible for such distributor's compliance
with the terms of the Trademark License Agreements and the other
provisions contained in this agreement, and
(iii) Manager must retain the right to terminate the distribution
rights of the local distributor when so instructed by Sprint PCS (even if
Sprint PCS initially approved or did not exercise its right to review the
distributor).
4.2 Sprint PCS National Accounts Program Requirements. During the term of
this agreement. Manager must participate in the Sprint PCS National Accounts
Program (as in effect from time to time), and will be entitled to compensation
for its participation and will be required to pay the expenses of the program in
accordance with the terms and conditions of that program. The Sprint PCS
National Accounts Program Requirements in effect as of the date of this
agreement are attached as Exhibit 4.2.
4.3 Sprint PCS Roaming and Inter Service Area Program Requirements. Manager
will participate in the Sprint PCS Roaming and Inter Service Area Program
established and implemented by Sprint PCS, including roaming price plans and
inter-carrier settlements. The Sprint PCS Roaming and Inter Service Area Program
Requirements in effect as of the date of this agreement are attached as Exhibit
4.3.
As part of the Sprint PCS Roaming and Inter Service Area Program
Requirements. Sprint PCS will establish a settlement policy and process to
equitably distribute between the members making up the Sprint PCS Network (i.e.,
Sprint PCS, Manager and all Other Managers) the revenues received by one member
for services used by its customers when they travel into other members' service
areas.
<PAGE>
4.4 Pricing. Manager will offer and support all Sprint PCS pricing plans
designated for regional or national offerings of Sprint PCS Products and
Services (e.g., national inter service area rates, regional home rates, and
local price points). The Sprint PCS pricing plans as of the date of this
agreement are attached as Exhibit 4.4. Sprint PCS may modify the Sprint PCS
pricing plans from time to time in its sole discretion by delivering to Manager
a new Exhibit 4.4.
Additionally, with prior approval from Sprint PCS, which approval will not
be unreasonably withheld, Manager may establish price plans for Sprint PCS
Products and Services that are only offered in its local market, subject to:
(a) the non-competition and other provisions contained in this
agreement;
(b) consistency with regional and national pricing plans;
(c) regulatory requirements; and
(d) capability and cost of implementing rate plans in Sprint PCS
systems (if used).
Manager must provide advance written notice to Sprint PCS with details of
any pricing proposal for Sprint PCS Products or Services in the Service Area. If
Sprint PCS fails to respond to Manager within 10 Business Days after receiving
such notice, then the price proposed for those Sprint PCS Products or Services
is deemed approved.
At the time Sprint PCS approves a pricing proposal submitted by Manager,
Sprint PCS will provide Manager an estimate of the costs and expenses and
applicable time frames required for Sprint PCS to implement the proposed pricing
plan. Manager agrees to promptly reimburse Sprint PCS for any cost or expense
incurred by Sprint PCS to implement such a pricing plan, which will not exceed
the amount estimated by Sprint PCS if Manager waited for Sprint PCS' response to
Manager's proposal.
4.5 Home Service Area. Sprint PCS and Manager will agree to the initial
home service area for each base station in the Service Area Network prior to the
date the Service Area Network goes into commercial operation. If the parties
cannot agree to the home service area for each base station in the Service Area
Network, then the parties will use the dispute resolution process in Section 14
of this agreement to assign each base station to a home service area.
5. USE OF BRANDS
5.1 Use of Brands.
(a) Manager must enter into the Trademark License Agreements on or
before the date of this agreement.
(b) Manager must use the Brands exclusively in the marketing,
promotion, advertisement, distribution, lease or sale of any Sprint PCS Products
and Services within the Service Area, except Manager may use other brands to the
extent permitted by the Trademark License Agreements and not inconsistent with
the terms of this agreement.
(c) Neither Manager nor any of its Related Parties may market,
promote, advertise, distribute, lease or sell any of the Sprint PCS Products and
Services or Manager's Products and Services on a non-branded, "private label"
basis or under any brand, trademark, trade name or trade dress other than the
Brands, except (i) for sales to resellers required under this agreement, or (ii)
as permitted under the Trademark License Agreements.
<PAGE>
(d) The provisions of this Section 5.1 do not prohibit Manager from
including Sprint PCS Products and Services under the Brands within the Service
Area as part of a package with its other products and services that bear a
different brand or trademark. The provisions of this Section 5.1 do not apply to
the extent that they are inconsistent with applicable law or in conflict with
the Trademark License Agreements.
5.2 Conformance to Marketing Communications Guidelines. Manager must
conform to the Marketing Communications Guidelines in connection with the
marketing, promotion, advertisement, distribution, lease and sale of any of the
Sprint PCS Products and Services. The Marketing Communications Guidelines in
effect as of the date of this agreement are attached as Exhibit 5.2. Sprint and
Sprint Spectrum may amend the Marketing Communications Guidelines from time to
time in accordance with the terms of the Trademark License Agreements.
5.3 Joint Marketing With Third Parties.
(a) Manager may engage in various joint marketing activities (e.g.,
promotions with sports teams and entertainment providers or tournament
sponsorships) with third parties in the Service Area from time to time during
the term of this agreement with respect to the Sprint PCS Products and Services,
except that Manager may engage in the joint marketing activities only if the
joint marketing activities:
(i) are conducted in accordance with the terms and conditions
of the Trademark License Agreements and the Marketing Communications
Guidelines;
(ii) do not violate the terms of this agreement;
(iii) are not likely (as determined by Sprint PCS, in its sole
discretion) to cause confusion between the Brands and any other trademark
or service mark used in connection with the activities;
(iv) are not likely (as determined by Sprint, in its sole
discretion) to cause confusion between the Sprint Brands and any other
trademark or service mark used in connection with the activities; and
(v) are not likely (as determined by Sprint PCS, in its sole
discretion) to give rise to the perception that the Sprint PCS Products
and Services are being advertised, marketed or promoted under any
trademark or service mark other than the Brands, except as provided in the
Trademark License Agreements. Manager will not engage in any activity that
includes co-branding involving use of the Brands (that is, the marketing,
promotion, advertisement, distribution, lease or sale of any of the Sprint
PCS Products and Services under the Brands and any other trademark or
service mark), except as provided in the Trademark License Agreements.
(b) Manager must provide advance written notice to Sprint PCS
describing any joint marketing activities that may:
(i) cause confusion between the Brands and any other trademark
or service mark used in connection with the proposed activities; or
(ii) give rise to the perception that the Sprint PCS Products
and Services are being advertised, marketed or promoted under any
trademark or service mark other than the Brands, except as provided in the
Trademark License Agreements.
(c) If Sprint PCS fails to provide a response to Manager within 20
days after receiving such notice, then the proposed activities are deemed, as
the case may be:
<PAGE>
(i) not to create confusion between the Brands and any other
trademark or service mark; or
(ii) not to give rise to the perception that Manager's
products and services are being advertised, marketed or promoted under any
trademark or service mark other than the Brands, except as provided in the
Trademark License Agreements.
5.4 Prior Approval of Use of Brands. Manager must obtain advance written
approval from Sprint for use of the Sprint Brands to the extent required by the
Sprint Trademark and Service Mark License Agreement and from Sprint PCS for use
of the Sprint PCS Brands to the extent required by the Sprint Spectrum Trademark
and Service Mark License Agreement. Sprint PCS will use commercially reasonable
efforts to facilitate any review of Manager's use of the Brands, if Sprint PCS
is included in the review process.
5.5 Duration of Use of Brand. Manager is entitled to use the Brands only
during the term of the Trademark License Agreements and any transition period
during which Manager is authorized to use the Brands following the termination
of the Trademark License Agreements.
6. ADVERTISING AND PROMOTION
6.1 National Advertising and Promotion. Sprint PCS is responsible for (a)
all national advertising and promotion of the Sprint PCS Products and Services,
including the costs and expenses related to national advertising and promotions,
and (b) all advertising and promotion of the Sprint PCS Products and Services in
the markets where Sprint PCS operates without the use of an Other Manager.
6.2 In-Territory Advertising and Promotion. Manager must advertise and
promote the Sprint PCS Products and Services in the Service Area (and may do so
in the areas adjacent to the Service Area so long as Manager intends that such
advertising or promotion primarily reach potential customers within the Service
Area). Manager must advertise and promote the Sprint PCS Products and Services
in accordance with the terms and conditions of this agreement, the Trademark
License Agreements and the Marketing Communication Guidelines. Manager is
responsible for the costs and expenses incurred by Manager with respect to
Manager's advertising and promotion activities in the Service Area.
Manager will be responsible for a portion of the cost of any promotion or
advertising done by third party retailers in the Service Area (e.g., Best Buy)
in accordance with any cooperative advertising arrangements based on per unit
handset sales.
Sprint PCS has the right to use in any promotion or advertising done by
Sprint PCS any promotion or advertising materials developed by Manager from time
to time with respect to the Sprint PCS Products and Services. Sprint PCS will
reimburse Manager for the reproduction costs related to such use.
Sprint PCS will make available to Manager the promotion or advertising
materials developed by Sprint PCS from time to time with respect to Sprint PCS
Products and Services in current use by Sprint PCS (e.g., radio ads, television
ads, design of print ads, design of point of sale materials, retail store
concepts and designs, design of collateral). Manager will bear the cost of using
such materials (e.g., cost of local radio and television ad placements, cost of
printing collateral in quantity, and building out and finishing retail stores).
6.3 Review of Advertising and Promotion Campaigns. Sprint PCS and Manager
will jointly review the upcoming marketing and promotion campaigns of Manager
with respect to Sprint PCS Products and Services (including advertising and
promotion expense budgets) and will use good faith efforts to coordinate
<PAGE>
Manager's campaign with Sprint PCS' campaign to maximize the market results of
both parties. Sprint PCS and Manager may engage in cooperative advertising or
promotional activities during the term of this agreement as the parties may
agree in writing.
6.4 Public Relations. If Manager conducts local public relations efforts,
then Manager must conduct the local public relations efforts consistent with the
Sprint PCS Communications Policies. The Sprint PCS Communications Policies as of
the date of this agreement are attached as Exhibit 6.4. Sprint PCS may modify
the Sprint PCS Communications Policies from time to time by delivering to
Manager a new Exhibit 6.4.
7. SPRINT PCS TECHNICAL PROGRAM REQUIREMENTS
7.1 Conformance to Sprint PCS Technical Program Requirements.
(a) Manager must meet or exceed the Sprint PCS Technical Program
Requirements established by Sprint PCS from time to time for the Sprint PCS
Network. Manager will be deemed to meet the Sprint PCS Technical Program
Requirements if:
(i) Manager operates the Service Area Network at a level equal
to or better than the lower of the Operational Level of Sprint PCS or the
operational level contemplated by the Sprint PCS Technical Program
Requirements; or
(ii) Sprint PCS is responsible under the Services Agreement to
ensure the Service Area Network complies with the Sprint PCS Technical
Program Requirements.
(b) Manager must demonstrate to Sprint PCS that Manager has complied
with the Sprint PCS Technical Program Requirements prior to connecting the
Service Area Network to the rest of the Sprint PCS Network. Once the Service
Area Network is connected to the Sprint PCS Network, Manager must continue to
comply with the Sprint PCS Technical Program Requirements. Sprint PCS agrees
that the Sprint PCS Technical Program Requirements adopted for Manager will be
the same Sprint PCS Technical Program Requirements applied by Sprint PCS to the
Sprint PCS Network.
7.2 Establishment of Sprint PCS Technical Program Requirements. Sprint PCS
has delivered to Manager a copy of the current Sprint PCS Technical Program
Requirements, attached as Exhibit 7.2. Sprint PCS drafted the Sprint PCS
Technical Program Requirements to ensure a minimum, base-line level of quality
for the Sprint PCS Network. The Sprint PCS Technical Program Requirements
include standards relating to voice quality, interoperability, consistency
(seamlessness) of coverage, RF design parameters, system design, capacity, and
call blocking ratio. Sprint PCS has selected code division multiple access as
the initial air interface technology for the Sprint PCS Network (subject to
change in accordance with Section 9.1).
7.3 Handoff to Adjacent Networks. If technically feasible and commercially
reasonable, Manager will operate the Service Area Network in a manner that
permits a seamless handoff of a call initiated on the Service Area Network to
any adjacent PCS network that is part of the Sprint PCS Network, as specified in
the Sprint PCS Technical Program Requirements. Sprint PCS agrees that the terms
and conditions for seamless handoffs adopted for the Service Area Network will
be the same as the terms Sprint PCS applies to the other parts of the Sprint PCS
Network for similar configurations of equipment.
8. SPRINT PCS CUSTOMER SERVICE PROGRAM REQUIREMENTS
8.1 Compliance With Sprint PCS Customer Service Program Requirements.
Manager must comply with the Sprint PCS Customer Service Program Requirements in
<PAGE>
providing the Sprint PCS Products and Services to any customer of Manager,
Sprint PCS or any Sprint PCS Related Party. Manager will be deemed to meet the
standards if:
(a) Manager operates the Service Area Network at a level equal to or
better than the lower of the Operational Level of Sprint PCS or the operational
level contemplated by the Program Requirements; or
(b) Manager has delegated to Sprint PCS under the Services Agreement
responsibility to ensure the Service Area Network complies with the Sprint PCS
Customer Service Standards.
Sprint PCS has delivered to Manager a copy of the Sprint PCS Customer
Service Standards, which are attached as Exhibit 8.1.
9. SPRINT PCS PROGRAM REQUIREMENTS
9.1 Program Requirements Generally. This agreement contains numerous
references to Sprint PCS National and Regional Distribution Program
Requirements, Sprint PCS National Accounts Program Requirements, Sprint PCS
Roaming and Inter Service Area Program Requirements, Sprint PCS Technical
Program Requirements and Sprint PCS Customer Service Program Requirements. This
agreement also provides under Section 3.5.2 for the offering by Sprint PCS of a
voluntary resale product through a program, which program, if adopted, will be a
Program Requirement under this agreement. Sprint PCS may unilaterally amend from
time to time in the manner described in Section 9.2 all Program Requirements
mentioned in this agreement. The most current version of the Program
Requirements mentioned in the first sentence of this Section 9.1 have been
provided to Manager. Manager has reviewed the Program Requirements and adopts
them for application in the Service Area.
9.2 Amendments to Program Requirements. Sprint PCS may amend any of the
Program Requirements, subject to the following conditions:
(a) The applicable Program Requirements, as amended, will apply
equally to Manager, Sprint PCS and each Other Manager, except if Manager and
Sprint PCS agree otherwise or if Sprint PCS grants a waiver to Manager. Sprint
PCS may grant waivers to Other Managers without affecting Manager's obligation
to comply with the Program Requirements;
(b) Each amendment will be reasonably required to fulfill the
purposes set forth in Section 1.2 with respect to uniform and consistent
operations of the Sprint PCS Network and the presentation of Sprint PCS Products
and Services to customers in a uniform and consistent manner;
(c) Each amendment will otherwise be on terms and conditions that
are commercially reasonable with respect to the construction, operation and
management of the Sprint PCS Network. With respect to any amendment to the
Program Requirements, Sprint PCS will provide for reasonable transition periods
and, where appropriate, may provide for grandfathering provisions for existing
activities by Manager that were permitted under the applicable Program
Requirements before the amendment;
(d) Sprint PCS must give Manager reasonable, written notice of the
amendment, but in any event the notice will be given at least 30 days prior to
the effective date of the amendment; and
(e) Manager must implement any changes in the Program Requirements
within a commercially reasonable period of time unless otherwise consented to by
Sprint PCS. Sprint PCS will determine what constitutes a commercially reasonable
period of time taking into consideration relevant business factors, including
the strategic significance of the changes to the Sprint PCS Network, the
relationship of the changes to the yearly marketing cycle, and the financial
<PAGE>
demands on and capacity generally of Other Managers. Notwithstanding the
preceding two sentences, Manager will not be required to implement any change in
the Service Area Network or the business of Manager required by an amendment to
a Program Requirement until Sprint PCS has implemented the required changes in
substantially all of that portion of the Sprint PCS Network that Sprint PCS
operates without the use of a manager or affiliate, unless the amendment to the
Program Requirement relates to an obligation regarding the Service Area Network
mandated by law. When necessary for reasons related to new technical standards,
new equipment or strategic reasons, Sprint PCS can require Manager to implement
the changes in the Service Area Network or Manager's business concurrently with
Sprint PCS, in which case Sprint PCS will reimburse Manager for its costs and
expenses if Sprint PCS discontinues the Program Requirement changes prior to
implementation.
Sprint PCS may grant Manager appropriate waivers and variances from the
requirements of any Program Requirements. Sprint PCS has the right to adopt any
Program Requirements that implement any obligation regarding the Service Area
Network mandated by law.
Any costs and expenses incurred by Manager in connection with conforming
to any change to the Program Requirements during the term of this agreement are
the responsibility of Manager.
9.3 Manager's Right to Request Review of Changes. If Sprint PCS announces
a change to a Program Requirement that will:
(a) cause the Manager to spend an additional amount greater than 5%
of Manager's shareholder's equity or capital account plus Manager's long-term
debt (i.e., notes that mature more than one year from the date issued), as
reflected on Manager's books; or
(b) cause the long term operating expenses of Manager on a per unit
basis using a 10-year time frame to increase by more than 10% on a net present
value basis.
then Manager may give Sprint PCS a written notice requesting Sprint PCS to
reconsider the change.
The Sprint PCS Vice President or the designee of the Sprint PCS Chief
Officer in charge of the group that manages the Sprint PCS relationship with
Manager will review Manager's request and render a decision regarding the
change. If after the review and decision by the Vice President or designee,
Manager is still dissatisfied, then Manager may ask that the Chief Officer to
whom the Vice President or designee reports review the matter. If Sprint PCS
still requires Manager to implement the change to the Program Requirement
following the Chief Officer's review, then upon Manager's failure to implement
the change an Event of Termination will be deemed to have occurred under Section
11.3.3, Manager will not have a right to cure such breach, and Sprint PCS may
exercise its rights and remedies under Section 11.6.
9.4 Sprint PCS' Right to Implement Changes. If Manager requests Sprint PCS
to reconsider a change to a Program Requirement as permitted under Section 9.3
and Sprint PCS decides it will not require Manager to make the change, Sprint
PCS may, but is not required to, implement the change at Sprint PCS' expense, in
which event Manager will be required to operate the Service Area Network, as
changed, but Sprint PCS will be entitled to any revenue derived from the change.
9.5 Rights of Inspection. Sprint PCS and its authorized agents and
representatives may enter upon the premises of any office or facility operated
by or for Manager at any time, with reasonable advance notice to Manager if
possible, to inspect, monitor and test in a reasonable manner the Service Area
Network, including the facilities, equipment, books and records of Manager, to
ensure that Manager has complied or is in compliance with all covenants and
<PAGE>
obligations of Manager under this agreement, including Manager's obligation to
conform to the Program Requirements. The inspection, monitoring and testing may
not disrupt the operations of the office or facility, nor impede Manager's
access to the Service Area Network.
9.6 Manager's Responsibility to Interface with Sprint PCS. Manager will
use platforms fully capable of interfacing with the Sprint PCS platforms in
operating the Service Area Network and in providing Sprint PCS Products and
Services. Manager will pay the expense of making its platforms fully capable of
interfacing with Sprint PCS, including paying for the following:
(i) connectivity;
(ii) any changes that Manager requests Sprint PCS to make to
Sprint PCS systems to interconnect with Manager's systems that Sprint PCS,
in its sole discretion, agrees to make;
(iii) equipment to run Manager's software;
(iv) license fees for Manager's software; and
(v) Manager's upgrades or changes to its platforms.
10. FEES
10.1 Fees and Payments.
10.1.1 Fee Based on Collected Revenues. Sprint PCS will pay to
Manager a weekly fee equal to 92% of Collected Revenues for the week for all
obligations of Manager under this Agreement. The fee will be due on Thursday of
the week following the week for which the fee is calculated.
10.1.2 Payment of Universal Service Funds. Sprint PCS and Manager
will share any federal and state subsidy funds (e.g., payments by a state of
universal service fund subsidies to Sprint PCS or Manager), if any, received by
Sprint PCS or Manager for customers who reside in the portion of the Service
Area served by the Service Area Network. Manager is entitled to 92% of any
amount received by either party and Sprint PCS is entitled to 8% of such
amounts.
10.1.3 Inter Service Area Fees. Sprint PCS will pay to Manager
monthly a fee as set out in the Sprint PCS Roaming and Inter Service Area
Program, for each minute of use that a customer of Sprint PCS or one of the
Other Managers whose NPA-NXX is not assigned to the Service Area Network uses
the Service Area Network. Manager will pay to Sprint PCS a fee, as set out in
the Sprint PCS Roaming and Inter Service Area Program, for each minute of use
that a customer whose NPA-NXX is assigned to the Service Area Network uses a
portion of the Sprint PCS Network other than the Service Area Network. Manager
acknowledges that the manner in which the NPA-NXX is utilized could change,
which will require a modification in the manner in which the inter service area
fees, if any, will be calculated.
10.1.4 Interconnect Fees. Manager will pay to Sprint PCS (or to
other carriers as appropriate) monthly the interconnect fees, if any, as
provided under Section 1.4.
10.1.5 Outbound Roaming Fees. If not otherwise provided under any
Program Requirement:
(a) Sprint PCS will pay to Manager monthly the amount of Outbound
Roaming fees that Sprint PCS collects for the month from end users whose NPA-NXX
is assigned to the Service Area; and
<PAGE>
(b) Manager will pay to Sprint PCS (or to a clearinghouse or other
carrier as appropriate) the direct cost of providing the capability for the
Outbound Roaming, including any amounts payable to the carrier that handled the
roaming call and the clearinghouse operator.
10.1.6 Reimbursements. Manager will pay to or reimburse Sprint PCS
for any amounts that Sprint PCS is required to pay to a third party (e.g., a
telecommunications carrier) to the extent Sprint PCS already paid such amount to
Manager under this Section 10.
10.2 Monthly True Up. Manager will report to Sprint PCS monthly the amount
of Collected Revenues received directly by the Manager (e.g., customer mails
payment to the business address of Manager rather than to the lockbox or a
customer pays a direct sales force representative in cash). Sprint PCS will on a
monthly basis true up the fees and payments due under Section 10.1 against the
actual payments made by Sprint PCS to Manager. Sprint PCS will provide to
Manager a true up report each month showing the true up and the net amount due
from one party to the other, if any. If the weekly payments made to Manager
exceed the actual fees and payments due to Manager, then Manager will remit the
amount of the overpayment to Sprint PCS within 5 Business Days after receiving
the true up report from Sprint PCS. If the weekly payments made to Manager are
less than the actual fees and payments due to Manager, then Sprint PCS will
remit the shortfall to Manager within 5 Business Days after sending the true up
report to Manager.
If a party disputes any amount on the true up report, the disputing party
must give the other party written notice of the disputed amount and the reason
for the dispute within 90 days after it receives the true up report. The dispute
will be resolved through the dispute resolution process in Section 14. The
parties must continue to pay to the other party any undisputed amounts owed
under this agreement during the dispute resolution process. The dispute of an
item does not stay or diminish a party's other rights and remedies under this
agreement.
10.3 Taxes. Manager will pay or reimburse Sprint PCS 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 by Sprint PCS to Manager.
Manager will report all taxable property to the appropriate taxing
authority for ad valorem tax purposes. Manager will pay as and when due all
taxes, assessments, liens, encumbrances, levies, and other charges against the
real estate and personal property owned by Manager or used by Manager in
fulfilling its obligations under this agreement.
Manager is responsible for paying all sales, use, or similar taxes on the
purchase and use of its equipment, advertising, and other goods or services in
connection with this agreement.
10.4 Collected Revenues Definition. "Collected Revenues" means actual
payments received by or on behalf of Sprint PCS or Manager for Sprint PCS
Products and Services from others, including the customers, whose NPA-NXX is the
same as that for the portion of the Service Area served by the Service Area
Network. In determining Collected Revenues the following principles will apply.
(a) The following items will be treated as follows:
(i) Collected Revenues do not include revenues from federal
and state subsidy funds; they are handled separately as noted in Section
10.1.2;
(ii) Collected Revenues do include any amounts received for
the payment of Inbound Roaming charges and interconnect fees when calls
<PAGE>
are carried on the Service Area Network; and
(iii) Collected Revenues do not include any amounts received
with respect to any changes made by Sprint PCS under Section 9.4.
(b) The following items are not Collected Revenues; Sprint PCS is
obligated to remit the amounts received with respect to such items, if any, to
Manager, as follows:
(i) inter service area payments will be paid as provided under
Section 10.1.3;
(ii) Outbound Roaming and related charges will be paid as
provided under Section 10.1.5;
(iii) proceeds from the sale or lease of subscriber equipment
and accessories will be paid to Manager, subject to the equipment
settlement process in Section 4.1.2;
(iv) proceeds from sales not in the ordinary course of
business (e.g., sales of switches, cell sites, computers, vehicles or
other fixed assets);
(v) any amounts collected with respect to sales and use taxes,
gross receipts taxes, transfer taxes, and similar taxes, administrative
fees, telecommunications fees, and surcharges for taxes and fees that are
collected by a carrier for the benefit of a governmental authority,
subject to Manager's obligation under Section 10.3; and
(vi) Manager will be entitled to 100% of all revenues received
by Sprint PCS with respect to sales of Manager's Products and Services.
(c) The following items are not Collected Revenues: neither party is
obligated to remit any amounts respecting such items:
(i) reasonable adjustments of a customer's account (e.g., if
Sprint PCS or Manager reduces a customer's bill, then the amount of the
adjustment is not Collected Revenues); and
(ii) amount of bad debt and fraud associated with customers
whose NPA-NXX is assigned to the Service Area (e.g., if Sprint PCS or
Manager writes off a customer's bill as a bad debt, there are no Collected
Revenues on which a fee is due to Manager).
10.5 Late Payments. Any amount due under this Section 10 that is not paid
by one party to the other party in accordance with the terms of this agreement
will bear interest at the Default Rate beginning (and including) the 3rd day
after the due date until (and including) the date paid.
10.6 Setoff Right If Failure To Pay Amounts Due. If Manager fails to pay
any undisputed amount due Sprint PCS or a Related Party of Sprint PCS under this
agreement, the Services Agreement, or any other agreement with Sprint PCS or a
Related Party of Sprint PCS, then Sprint PCS may setoff against its payments to
Manager under this Section 10, the following amounts:
(a) any amount that Manager owes to Sprint PCS or a Related Party of
Sprint PCS, including amounts due under the Services Agreement; and
(b) any amount that Sprint PCS reasonably estimates will be due to
Sprint PCS for the current month under the Services Agreement (e.g., if under
the Services Agreement customer care calls are billed monthly, Sprint PCS can
deduct from the weekly payment to Manager an amount Sprint PCS reasonably
estimates will be due Sprint PCS on account of such customer care calls under
<PAGE>
the Services Agreement).
On a monthly basis Sprint PCS will true up the estimated amounts deducted
against the actual amounts due Sprint PCS and Sprint PCS' Related Parties. If
the estimated amounts deducted by Sprint PCS exceed the actual amounts due to
Sprint PCS and Sprint PCS' Related Parties, then Sprint PCS will remit the
excess to Manager with the next weekly payment. If the estimated amounts
deducted are less than the actual amounts due to Sprint PCS and its Related
Parties, then Sprint PCS may continue to setoff the payments to Manager against
the amounts due to Sprint PCS and Sprint PCS' Related Parties. This right of
setoff is in addition to any other right that Sprint PCS may have under this
agreement.
11. TERM; TERMINATION; EFFECT OF TERMINATION
11.1 Initial Term. This agreement commences on the date of execution and,
unless terminated earlier in accordance with the provisions of this Section 11,
continues for a period of 20 years (the "Initial Term").
11.2 Renewal Terms. Following expiration of the Initial Term, this
agreement will automatically renew for 3 successive 10-year renewal periods (for
a maximum of 50 years including the Initial Term), unless at least 2 years prior
to the commencement of any renewal period either party notifies the other party
in writing that it does not wish to renew this agreement.
11.2.1 Non-renewal Rights of Manager. If this agreement will
terminate because Sprint PCS gives Manager timely written notice of non-renewal
of this agreement, then Manager may exercise its rights under Section 11.2.1.1
or, if applicable, its rights under Section 11.2.1.2.
11.2.1.1 Manager's Put Right. Manager may within 30 days after
the date Sprint PCS gives notice of non-renewal put to Sprint PCS all of the
Operating Assets. Sprint PCS will pay to Manager for the Operating Assets an
amount equal to 80% of the Entire Business Value. The closing of the purchase of
the Operating Assets will occur within 20 days after the later of (a) the
receipt by Sprint PCS of the written notice of determination of the Entire
Business Value provided by the appraisers under Section 11.7 or (b) the receipt
of all materials required to be delivered to Sprint PCS under Section 11.8. Upon
closing the purchase of the Operating Assets this agreement will be deemed
terminated. The exercise of the put, the determination of the Operating
Assets, the representations and warranties made by Manager with respect to the
Operating Assets and the business, and the process for closing the purchase will
be subject to the terms and conditions set forth in Section 11.8.
11.2.1.2 Manager's Purchase Right.
(a) If Sprint PCS owns 20 MHz or more of PCS spectrum
in the Service Area under the License on the date this agreement is
executed, then Manager may within 30 days after the date Sprint PCS
gives notice of non-renewal declare its intent to purchase the
Disaggregated License. Subject to receipt of FCC approval of the
necessary disaggregation and partition, Manager may purchase from
Sprint PCS the Disaggregated License for an amount equal to the greater
of (1) the original cost of the License to Sprint PCS (pro rated on a
pops and spectrum basis) plus the microwave relocation costs paid by
Sprint PCS or (2) 10% of the Entire Business Value.
(b) Upon closing the purchase of the spectrum this
agreement will be deemed terminated. The closing of the purchase of
the Disaggregated License will occur within the later of:
(1) 20 days after the receipt by Manager of the
written notice of determination of the Entire Business Value
<PAGE>
by the appraisers under Section 11.7; or
(2) 10 days after the approval of the sale of the
Disaggregated License by the FCC.
(c) The exercise of the purchase right, the
determination of the geographic extent of the Disaggregated License
coverage, the representations and warranties made by Sprint PCS with
respect to the Disaggregated License, and the process for closing
the purchase will be subject to the terms and conditions set forth
in Section 11.8.
(d) After the closing of the purchase Manager will
allow:
(1) subscribers of Sprint PCS to roam on
Manager's network; and
(2) Sprint PCS to resell Manager's Products and
Services.
Manager will charge Sprint PCS a MFN price in either case.
11.2.2 Non-renewal Rights of Sprint PCS. If this agreement will
terminate because of any of the following five (5) events, then Sprint PCS may
exercise its rights under Section 11.2.2.1 or, if applicable, its rights under
Section 11.2.2.2:
(a) Manager gives Sprint PCS timely written notice of non-renewal of
this agreement;
(b) both parties give timely written notices of non-renewal;
(c) this agreement expires with neither party giving a written
notice of non-renewal;
(d) either party elects to terminate this agreement under Section
11.3.4(a); or
(e) Manager elects to terminate this agreement under Section
11.3.4(b).
11.2.2.1 Sprint PCS' Purchase Right. Sprint PCS may purchase
from Manager all of the Operating Assets. Sprint PCS will pay to Manager an
amount equal to 80% of the Entire Business Value. The closing of the purchase of
the Operating Assets will occur within 20 days after the later of (a) the
receipt by Sprint PCS of the written notice of determination of the Entire
Business Value provided by the appraisers under Section 11.7 or (b) the receipt
of all materials required to be delivered to Sprint PCS under Section 11.8. Upon
closing the purchase of the Operating Assets this agreement will be deemed
terminated. The exercise of the purchase right, the determination of the
Operating Assets, the representations and warranties made by Manager with
respect to the Operating Assets and the business, and the process for closing
the purchase will be subject to the terms and conditions set forth in Section
11.8.
11.2.2.2 Sprint PCS' Put Right.
(a) Sprint PCS may, subject to receipt of FCC approval,
put to Manager the Disaggregated License for a purchase price equal
to the greater of (1) the original cost of the License to Sprint PCS
(pro rated on a pops and spectrum basis) plus the microwave
relocation costs paid by Sprint PCS or (2) 10% of the Entire
<PAGE>
Business Value.
(b) Upon closing the purchase of the Disaggregated
License this agreement will be deemed terminated. The closing of the
purchase of the Disaggregated License will occur within the later
of:
(1) 20 days after the receipt by Sprint PCS of the
written notice of determination of the Entire Business Value
by the appraisers under Section 11.7; or
(2) 10 days after the approval of the sale of the
Disaggregated License by the FCC.
(c) The exercise of the put, the determination of the
geographic extent of the Disaggregated License coverage, the
representations and warranties made by Sprint PCS with respect to
the Disaggregated License, and the process for closing the purchase
will be subject to the terms and conditions set forth in Section
11.8.
(d) Manager may, within 10 days after it receives notice
of Sprint PCS' exercise of its put, advise Sprint PCS of the amount
of spectrum (not to exceed 10 MHz) it wishes to purchase. After the
purchase Manager will allow:
(1) subscribers of Sprint PCS to roam on Manager's
network; and
(2) Sprint PCS to resell Manager's Products and
Services.
Manager will charge Sprint PCS a MFN price in either case.
11.2.3 Extended Term Awaiting FCC Approval. If Manager is buying the
Disaggregated License as permitted or required under Sections 11.2.1.2 or
11.2.2.2, then the Term of this agreement will extend beyond the original
expiration date until the closing of the purchase of the Disaggregated License.
The parties agree to exercise their respective commercially reasonable efforts
to obtain FCC approval of the transfer of the Disaggregated License.
11.3 Events of Termination. An "Event of Termination" is deemed to occur
when a party gives written notice to the other party of the Event of Termination
as permitted below:
11.3.1 Termination of License.
(a) At the election of either party this agreement
may be terminated at the time the FCC revokes or fails to
renew the License. Unless Manager has the right to terminate
this agreement under Section 11.3.1(b), neither party has any
claim against the other party if the FCC revokes or fails to
renew the License, even if circumstances would otherwise
permit one party to terminate this agreement based on a
different Event of Termination, except that the parties will
have the right to pursue claims against each other as
permitted under Section 11.4(b).
(b) If the FCC revokes or fails to renew the
License because of a breach of this agreement by Sprint PCS,
then Manager has the right to terminate this agreement under
Section 11.3.3 and not this Section 11.3.1.
<PAGE>
11.3.2 Breach of Agreement; Payment of Money Terms. At the election
of the non-breaching party this agreement may be terminated upon the failure by
the breaching party to pay any amount due under this agreement or any other
agreement between the parties or their respective Related Parties, if the breach
is not cured within 30 days after the breaching party's receipt of written
notice of the nonpayment from the non-breaching party.
11.3.3 Breach of Agreement; Other Terms. At the election of the
non-breaching party this agreement may be terminated upon the material breach by
the breaching party of any material term contained in this agreement that does
not regard the payment of money, if the breach is not cured within 30 days after
the breaching party's receipt of written notice of the breach from the
non-breaching party, except the cure period will continue for a reasonable
period beyond the 30-day period, but will under no circumstances exceed 180 days
after the breaching party's receipt of written notice of the breach, if it is
unreasonable to cure the breach within the 30-day period, and the breaching
party takes action prior to the end of the 30-day period that is reasonably
likely to cure the breach and continues to diligently take action necessary to
cure the breach.
11.3.4 Regulatory Considerations.
(a) At the election of either party this agreement may
be terminated if this agreement violates any applicable law in any
material respect where such violation (i) is classified as a felony
or (ii) subjects either party to substantial monetary fines or other
substantial damages, except that before causing any termination the
parties must use best efforts to modify this agreement, as necessary
to cause this agreement (as modified) to comply with applicable law
and to preserve to the extent possible the economic arrangements set
forth in this agreement.
(b) At the election of Manager this agreement may be
terminated if the regulatory action described under 11.3.4(a) is the
result of a deemed change of control of the License and the parties
are unable to agree upon a satisfactory resolution of the matter
with the regulatory authority without a complete termination of this
agreement.
11.3.5 Termination of Trademark License Agreements. If either
Trademark License Agreement terminates under its terms, then:
(a) Manager may terminate this agreement if the
Trademark License Agreement terminated because of a breach of the
Trademark License Agreement by Sprint PCS or Sprint; and
(b) Sprint PCS may terminate this agreement if the
Trademark License Agreement terminated because of a breach of the
Trademark License Agreement by Manager.
11.3.6 Financing Considerations. At the election of Sprint PCS this
agreement may be terminated upon the failure of Manager to obtain the financing
described in Exhibit 1.7 by the deadline(s) set forth on such Exhibit.
11.3.7 Bankruptcy of a Party. At the election of the non-bankrupt
party, this agreement may be terminated upon the occurrence of a Voluntary
Bankruptcy or an Involuntary Bankruptcy of the other party.
"Voluntary Bankruptcy" means:
(a) the inability of a party generally to pay its debts
as the debts become due, or an admission in writing by a party of
its inability to pay its debts generally or a general assignment by
<PAGE>
a party for the benefit of creditors;
(b) the filing of any petition or answer by a party
seeking to adjudicate itself a bankrupt or insolvent, or seeking any
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition for itself or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking, consenting to, or acquiescing in the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for itself or for substantially
all of its property; or
(c) any action taken by a party to authorize any of the
actions set forth above.
"Involuntary Bankruptcy" means, without the consent or acquiescence of a
party:
(a) the entering of an order for relief or approving a
petition for relief or reorganization;
(b) any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other similar
relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation;
(c) the filing of any petition against a party, which
petition is not dismissed within 90 days; or
(d) without the consent or acquiescence of a party, the
entering of an order appointing a trustee, custodian, receiver or
liquidator of party or of all or any substantial part of the
property of the party, which order is not dismissed within 90 days.
11.4 Effect of an Event of Termination.
(a) Upon the occurrence of an Event of Termination, the party with
the right to terminate this agreement or to elect the remedy upon the Event of
Termination, as the case may be, may:
(i) in the case of an Event of Termination under Sections
11.3.1(a) or 11.3.7, give the other party written notice that the
agreement is terminated effective as of the date of the notice, in which
case neither party will have any other remedy or claim for damages (except
any claim the non-bankrupt party has against the bankrupt party and any
claims permitted under Section 11.4(b)); or
(ii) in the case of an Event of Termination other than under
Section 11.3.1(a), give the other party written notice that the party is
exercising one of its rights, if any, under Section 11.5 or Section 11.6.
(b) If the party terminates this agreement under Section 11.4(a)(i)
then all rights and obligations of each party under this agreement will
immediately cease, except that:
(i) any rights arising out of a breach of any terms of this
agreement will survive any termination of this agreement;
(ii) the provisions described in Section 17.23 will survive
any termination of this agreement;
(iii) the payment obligations under Section 10 will survive
any termination of this agreement if, and to the extent, any costs or fees
<PAGE>
have accrued or are otherwise due and owing as of the date of termination
of this agreement from Manager to Sprint PCS or any Sprint PCS Related
Party or from Sprint PCS to Manager or any Manager Related Party;
(iv) either party may terminate this agreement in accordance
with the terms of this agreement without any liability for any loss or
damage arising out of or related to such termination, including any loss
or damage arising out of the exercise by Sprint PCS of its rights under
Section 11.6.3;
(v) Manager will use all commercially reasonable efforts to
cease immediately all of their respective efforts to market, sell, promote
or distribute the Sprint PCS Products and Services;
(vi) Sprint PCS has the option to buy from Manager any new
unsold subscriber equipment and accessories, at the prices charged to
Manager;
(vii) the parties will immediately stop making any statements
or taking any action that might cause third parties to infer that any
business relationship continues to exist between the parties, and where
necessary or advisable, the parties will inform third parties that the
parties no longer have a business relationship; and
(viii) if subscriber equipment and accessories are in transit
when this agreement is terminated. Sprint PCS may, but does not have the
obligation to, cause the freight carrier to not deliver the subscriber
equipment and accessories to Manager but rather to deliver the subscriber
equipment and accessories to Sprint PCS.
(c) If the party exercises its rights under Section 11.4(a)(ii),
this agreement will continue in full force and effect until otherwise
terminated.
(d) If this agreement terminates for any reason other than Manager's
purchase of the Disaggregated License, Manager will not, for 3 years after the
date of termination compile, create, or use for the purpose of selling
merchandise or services similar to any Sprint PCS Products and Services, or
sell, transfer or otherwise convey to a third party, a list of customers who
purchased, leased or used any Sprint PCS Products and Services. Manager may use
such a list for its own internal analysis of its business practices and
operations. If this agreement terminates because of Manager's purchase of the
Disaggregated License, then Sprint PCS will transfer to Manager the Sprint PCS
customers with a MIN assigned to the Service Area covered by the Disaggregated
License, but Sprint PCS retains the customers of a national account and any
resellers who have entered into a resale agreement with Sprint PCS. Manager
agrees not to solicit, directly or indirectly, any customers of Sprint PCS not
transferred to Manager under this Section 11.4(d) for 2 years after the
termination of this agreement, except that Manager's advertising through mass
media will not be considered a solicitation of Sprint PCS customers.
11.5 Manager's Event of Termination Rights and Remedies. In addition to
any other right or remedy that Manager may have under this agreement, the
parties agree that Manager will have the rights and remedies set forth in this
Section 11.5 and that such rights and remedies will survive the termination of
this agreement. If Manager has a right to terminate this agreement as the result
of the occurrence of an Event of Termination under Sections 11.3.2, 11.3.3,
11.3.5 or 11.3.7 (if Manager is the non-bankrupt party), then Manager has the
right to elect one of the following three (3) remedies, except Manager cannot
elect its remedies under Sections 11.5.1 or 11.5.2 during the first 2 years of
the Initial Term with respect to an Event of Termination under Section 11.3.3.
<PAGE>
11.5.1 Manager's Put Right. Manager may put to Sprint PCS within 30
days after the Event of Termination all of the Operating Assets. Sprint PCS will
pay to Manager an amount equal to 80% of the Entire Business Value. The closing
of the purchase of the Operating Assets will occur within 20 days after the
later of:
(a) the receipt by Sprint PCS of the written notice of
determination of the Entire Business Value by the appraisers under
Section 11.7; or
(b) the receipt of all materials required to be delivered to
Sprint PCS under Section 11.8.
Upon closing the purchase of the Operating Assets this agreement will be
deemed terminated. The exercise of the put, the determination of the Operating
Assets, the representations and warranties made by the Manager with respect to
the Operating Assets and the business, and the process for closing the purchase
will be subject to the terms and conditions set forth in Section 11.8.
11.5.2 Manager's Purchase Right.
(a) If Sprint PCS owns 20 MHz or more of PCS spectrum in the
Service Area under the License on the date this agreement is executed,
then Manager may, subject to receipt of FCC approval, purchase from
Sprint PCS the Disaggregated License for the greater of (1) the
original cost of the License to Sprint PCS (pro rated on a pops and
spectrum basis) plus the microwave relocation costs paid by Sprint PCS
or (2) 9% (10% minus a 10% penalty) of the Entire Business Value.
(b) Upon closing the purchase of the Disaggregated License
this agreement will be deemed terminated. The closing of the purchase
of the Disaggregated License will occur within the later of:
(1) 20 days after the receipt by Manager of the written
notice of determination of the Entire Business Value by the
appraisers under Section 11.7; or
(2) 10 days after the approval of the sale of the
Disaggregated License by the FCC.
The exercise of the purchase right, the determination of the geographic
extent of the Disaggregated License coverage, the representations and warranties
made by Sprint PCS with respect to the Disaggregated License, and the process
for closing the purchase will be subject to the terms and conditions set forth
in Section 11.8.
(c) After the closing of the purchase Manager will allow:
(1) subscribers of Sprint PCS to roam on Manager's
network; and
(2) Sprint PCS to resell Manager's Product and
Services.
Manager will charge Sprint PCS a MFN price in either case.
11.5.3 Manager's Action for Damages or Other Relief. Manager, in
accordance with the dispute resolution process in Section 14, may seek damages
or other appropriate relief.
<PAGE>
11.6 Sprint PCS' Event of Termination Rights and Remedies. In addition to
any other right or remedy that Sprint PCS may have under this agreement, the
parties agree that Sprint PCS will have the rights and remedies set forth in
this Section 11.6 and that such rights and remedies will survive the termination
of this agreement. If Sprint PCS has a right to terminate this agreement as the
result of the occurrence of an Event of Termination under Sections 11.3.2,
11.3.3, 11.3.5, 11.3.6 or 11.3.7 (if Sprint PCS is the non-bankrupt party), then
Sprint PCS has the right to elect one of the following four (4) remedies, except
that (i) if Sprint PCS elects the remedies under Sections 11.6.1, 11.6.2 or
11.6.4, Sprint PCS may pursue its rights under Section 11.6.3 concurrently with
its pursuit of one of the other three remedies, (ii) Sprint PCS cannot elect its
remedies under Sections 11.6.1 or 11.6.2 during the first 2 years of the Initial
Term with respect to an Event of Termination under Section 11.3.3 (unless the
Event of Termination is caused by a breach related to the Build-out Plan or the
build-out of the Service Area Network), and (iii) Sprint PCS cannot elect its
remedy under Section 11.6.2 during the first 2 years of the Initial Term with
respect to an Event of Termination under Section 11.3.6.
11.6.1 Sprint PCS' Purchase Right. Sprint PCS may purchase from
Manager all of the Operating Assets. Sprint PCS will pay to Manager an amount
equal to 72% (80% minus a 10% penalty) of the Entire Business Value. The closing
of the purchase of the Operating Assets will occur within 20 days after the
later of:
(a) the receipt by Sprint PCS of the written notice of
determination of the Entire Business Value by the appraisers pursuant
to Section 11.7; or
(b) the receipt of all materials required to be delivered to
Sprint PCS under Section 11.8.
Upon closing the purchase of the Operating Assets this agreement will be
deemed terminated. The exercise of the purchase right, the determination of the
Operating Assets, the representations and warranties made by Manager with
respect to the Operating Assets and the business, and the process for closing
the purchase will be subject to the terms and conditions set forth in Section
11.8.
11.6.2 Sprint PCS' Put Right.
(a) Sprint PCS may, subject to receipt of FCC approval, put to
Manager the Disaggregated License for a purchase price equal to the
greater of (1) the original cost of the License to Sprint PCS (pro
rated on a pops and spectrum basis) plus the microwave relocation costs
paid by Sprint PCS or (2) 10% of the Entire Business Value.
(b) Upon closing the purchase of the Disaggregated License
this agreement will be deemed terminated. The closing of the purchase
of the Disaggregated License will occur within the later of:
(1) 20 days after the receipt by Sprint PCS of the
written notice of determination of the Entire Business Value by the
appraisers under Section 11.7; or
(2) 10 days after the approval of the sale of the
Disaggregated License by the FCC.
(c) The exercise of the put, the determination of the
geographic extent of the Disaggregated License coverage, the
representations and warranties made by Sprint PCS with respect to the
Disaggregated License, and the process for closing
<PAGE>
the purchase will be subject to the terms and conditions set forth in
Section 11.8.
(d) Manager may, within 10 days after it receives notice of
Sprint PCS' exercise of its put, advise Sprint PCS of the amount of
spectrum (not to exceed 10 MHz) it wishes to purchase. After the
closing of the purchase Manager will allow:
(1) subscribers of Sprint PCS to roam on Manager's
network; and
(2) Sprint PCS to resell Manager's Products and Services.
Manager will charge Sprint PCS a MFN price in either case.
11.6.3 Sprint PCS' Right to Cause A Cure.
(a) Sprint PCS' Right. Sprint PCS may, but is not obligated
to, take such action as it deems necessary to cure Manager's breach of
this agreement, including assuming operational responsibility for the
Service Area Network to complete construction, continue operation,
complete any necessary repairs, implement changes necessary to comply
with the Program Requirements and terms of this agreement, or take such
other steps as are appropriate under the circumstances, or Sprint PCS
may designate a third party or parties to do the same, to assure
uninterrupted availability and deliverability of Sprint PCS Products
and Services in the Service Area, or to complete the build-out of the
Service Area Network in accordance with the terms of this agreement. In
the event that Sprint PCS elects to exercise its right under this
Section 11.6.3, Sprint PCS will give Manager written notice of such
election. Upon giving such notice:
(1) Manager will collect and make available at a
convenient, central location at its principal place of business,
all documents, books, manuals, reports and records related to the
Build-out Plan and required to operate and maintain the Service
Area Network; and
(2) Sprint PCS, its employees, contractors and designated
third parties will have the unrestricted right to enter the
facilities and offices of Manager for the purpose of curing the
breach and, if Sprint PCS deems necessary, operate the Service Area
Network.
Manager agrees to cooperate with and assist Sprint PCS to the extent
requested by Sprint PCS to enable Sprint PCS to exercise its rights under this
Section 11.6.3.
(b) Liability. Sprint PCS' exercise of its rights under this
Section 11.6.3 will not be deemed an assumption by Sprint PCS of any
liability attributable to Manager or any other party, except that,
without limiting the provisions of Section 13, during the period that
Sprint PCS is curing a breach under this agreement or operating any
portion of the Service Area Network pursuant to this Section 11.6.3,
Sprint PCS will indemnify and defend Manager and its directors,
partners, officers, employees and agents from and against, and
reimburse and pay for, all claims, demands, damages, losses, judgments,
awards, liabilities, costs and expenses (including reasonable
attorneys' fees, court costs and other expenses of litigation), whether
or not arising out of third party claims, in connection with any suit,
claim, action or other legal
<PAGE>
proceeding relating to the bodily injury, sickness or death of persons
or the damage to or destruction of property, real or personal,
resulting from or arising out of Sprint PCS' negligence or willful
misconduct in curing the breach or in the operation of the Service Area
Network. Sprint PCS' obligation under this Section 11.6.3(b) will not
apply to the extent of any claims, demands, damages, losses, judgments,
awards, liabilities, costs and expenses resulting from the negligence
or willful misconduct of Manager or arising from any contractual
obligation of Manager.
(c) Costs and Payments. During the period that Sprint PCS is
curing a breach or operating the Service Area Network under this
Section 11.6.3, Sprint PCS and Manager will continue to make any and
all payments due to the other party and to third parties under this
agreement, the Services Agreement and any other agreements to which
such party is bound, except that Sprint PCS may deduct from its
payments to Manager all reasonable costs and expenses incurred by
Sprint PCS in connection with the exercise of its right under this
Section 11.6.3. Sprint PCS' operation of the Service Area Network
pursuant to this Section 11.6.3 is not a substitution for Manager's
performance of its obligations under this agreement and does not
relieve Manager of its other obligations under this agreement.
(d) Length of Right. Sprint PCS may continue to operate the
Service Area Network in accordance with Section 11.6.3 until (i) Sprint
PCS cures all breaches by Manager under this agreement; (ii) Manager
cures all breaches and demonstrates to Sprint PCS' satisfaction that it
is financially and operationally willing, ready and able to perform in
accordance with this agreement and resumes such performance; (iii)
Sprint PCS consummates the purchase of the Operating Assets under
Section 11.6.1 or the sale of the Disaggregated License under Section
11.6.2; or (iv) Sprint PCS terminates this agreement.
(e) Not Under Services Agreement. The exercise by Sprint PCS
of its right under this Section 11.6.3 does not represent services
rendered under the Services Agreement, and therefore it does not allow
Manager to be deemed in compliance with the Program Requirements under
Sections 7.1(a)(ii), 8.1(b).
11.6.4 Sprint PCS' Action for Damages or Other Relief. Sprint PCS, in
accordance with the dispute resolution process in Section 14, may seek damages
or other appropriate relief.
11.7 Determination of Entire Business Value.
11.7.1 Appointment of Appraisers. Sprint PCS and Manager must each
designate an independent appraiser within 30 days after giving the Purchase
Notice under Exhibit 11.8. Sprint PCS and Manager will direct the two appraisers
to jointly select a third appraiser within 15 days after the day the last of
them is appointed. Each appraiser must be an expert in the valuation of wireless
telecommunications businesses. Sprint PCS and Manager must direct the three
appraisers to each determine, within 45 days after the appointment of the last
appraiser, the Entire Business Value. Sprint PCS and Manager will each bear the
costs of the appraiser appointed by it, and they will share equally the costs of
the third appraiser.
11.7.2 Manager's Operating Assets. The following assets are included in
the Operating Assets (as defined in the Schedule of Definitions):
(a) network assets, including all personal property,
<PAGE>
real property interests in cell sites and switch sites, leasehold
interests, collocation agreements, easements, and rights-of-way;
(b) all of the real, personal, tangible and intangible
property and contract rights that Manager owns and uses in conducting
the business of providing the Sprint PCS Products and Services,
including the goodwill resulting from Manager's customer base;
(c) sale and distribution assets primarily dedicated (i.e., at
least 80% of their revenue is derived from the sale of Sprint PCS
Products and Services) to the sale by Manager of Sprint PCS Products
and Services. For example, a retail store that derives at least 80% of
its revenue from the sale of Sprint PCS Products and Services is an
Operating Asset. A store that derives 65% of its revenue from Sprint
PCS Products and Services is not an Operating Asset;
(d) customers, if any, that use both the other products and
services approved under Section 3.2 and the Sprint PCS Products and
Services;
(e) handset inventory;
(f) books and records of the wireless business, including all
engineering drawings and designs and financial records; and
(g) all contracts used by Manager in operating the wireless
business including T1 service agreements, service contracts,
interconnection agreements, distribution agreements, software license
agreements, equipment maintenance agreements, sales agency agreements
and contracts with all equipment suppliers.
11.7.3 Entire Business Value. Utilizing the valuation principles set
forth below and in Section 11.7.4, "Entire Business Value" means the fair market
value of Manager's wireless business in the Service Area, valued on a going
concern basis.
(a) The fair market value is based on the price a willing
buyer would pay a willing seller for the entire on-going business.
(b) The appraisers will use the then-current customary means
of valuing a wireless telecommunications business.
(c) The business is conducted under the Brands and existing
agreements between the parties and their respective Related Parties.
(d) Manager owns the Disaggregated License (in the case where
Manager will be buying the Disaggregated License under Sections
11.2.1.2, 11.2.2.2, 11.5.2 or 11.6.2) or Manager owns the spectrum and
the frequencies actually used by Manager under this agreement (in the
case where Sprint PCS will be buying the Operating Assets under
Sections 11.2.1.1, 11.2.2.1, 11.5.1 or 11.6.1).
(e) The valuation will not include any value for the business
represented by Manager's Products and Services or any business not
directly related to Sprint PCS Products and Services.
11.7.4 Calculation of Entire Business Value. The Entire Business Value
to be used to determine the purchase price of the Operating Assets or the
<PAGE>
Disaggregated License under this agreement is as follows:
(a) If the highest fair market value determined by the
appraisers is within 10% of the lowest fair market value, then the
Entire Business Value used to determine the purchase price under this
agreement will be the arithmetic mean of the three appraised fair
market values.
(b) If two of the fair market values determined by the
appraisers are within 10% of one another, and the third value is not
within 10% of the other fair market values, then the Entire Business
Value used to determine the purchase price under this agreement will be
the arithmetic mean of the two more closely aligned fair market values.
(c) If none of the fair market values is within 10% of the
other two fair market values, then the Entire Business Value used to
determine the purchase price under this agreement will be the middle
value of the three fair market values.
11.8 Closing Terms and Conditions. The closing terms and conditions for the
transactions contemplated in this Section 11 are attached as Exhibit 11.8.
11.9 Contemporaneous and Identical Application. The parties agree that any
action regarding renewal or non-renewal and any Event of Termination will occur
contemporaneously and identically with respect to all Licenses. For example, if
Manager exercises its purchase right under Section 11.5.2, it must exercise such
right with respect to all of the Licenses under this agreement. The Term of this
agreement will be the same for all Licenses; Manager will not be permitted to
operate a portion of the Service Area Network with fewer than all of the
Licenses.
12. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION; INSURANCE
12.1 Books and Records.
12.1.1 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.
12.1.2 Audit. On reasonable advance notice, each party must provide
access to appropriate records to the independent auditors selected by the other
party for purposes of auditing the amount of fees, costs, expenses or other
charges payable in connection with the Service Area with respect to the period
audited. The auditing party will conduct the audit no more frequently than
annually. If the audit shows that Sprint PCS was underpaid then, unless the
amount is contested, Manager will pay to Sprint PCS the amount of the
underpayment within 10 Business Days after Sprint PCS gives Manager written
notice of the determination of the underpayment. If the audit determines that
Sprint PCS was overpaid then, unless the amount is contested, Sprint PCS will
pay to Manager the amount of the overpayment within 10 Business Days after
Sprint PCS determines Sprint PCS was overpaid. The auditing party will pay all
costs and expenses related to the audit unless the amount owed to the audited
party is reduced by more than 10% or the amount owed by the audited party is
increased by more than 10%, in which case the costs and expenses related to the
audit will be paid by the audited party.
Notwithstanding the above provisions of this Section 12.1.2, rather than
allow Manager's independent auditors access to Sprint PCS' records, Sprint PCS
may provide a report issued in conformity with Statement of Auditing Standard
No. 70 "Reports on the Processing of Transactions by Service Organizations"
<PAGE>
("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.
12.1.3 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 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.
12.2 Confidential Information.
(a) Except as specifically authorized by this agreement, each of the
parties must, for the Term 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:
<PAGE>
(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 party 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;
(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 12.2.
(c) Notwithstanding the foregoing, Manager and Sprint PCS authorize
each other to disclose to the public in regulatory filings the other's identity
and the Service Area to be developed and managed by Manager, and Manager
authorizes Sprint PCS to mention Manager and the Service Area in public
relations announcements.
(d) The party making a disclosure under Sections 12.2(b)(v),
12.2(b)(vi) or 12.2(b)(vii) must inform the disclosing party as promptly as is
reasonably necessary to enable the disclosing party to take action to, and use
the party's reasonable best efforts to, limit the disclosure and maintain
confidentiality to the extent practicable.
(e) 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 license area, Manager may not use any
of the Confidential Information received under or in connection with this
agreement in operating the other wireless business.
12.3 Insurance.
12.3.1 General. During the term of this agreement, Manager must obtain
and maintain, and will cause any subcontractors to obtain and maintain, with
financially reputable insurers licensed to do business in all jurisdictions
where any work is performed under this agreement and who are reasonably
acceptable to Sprint PCS, the insurance described in the Sprint PCS Insurance
<PAGE>
Requirements. The Sprint PCS Insurance Requirements as of the date of this
agreement are attached as Exhibit 12.3. Sprint PCS may modify the Sprint PCS
Insurance Requirements as is commercially reasonable from time to time by
delivering to Manager a new Exhibit 12.3.
12.3.2 Waiver of Subrogation. Manager must look first to any insurance
in its favor before making any claim against Sprint PCS or Sprint, and their
respective directors, officers, employees, agents or representatives for
recovery resulting from injury to any person (including Manager's or its
subcontractor's employees) or damage to any property arising from any cause,
regardless of negligence. Manager does hereby release and waive to the fullest
extent permitted by law, and will cause its respective insurers to waive, all
rights of recovery by subrogation against Sprint PCS or Sprint, and their
respective directors, officers, employees, agents or representatives.
12.3.3 Certificates of Insurance. Manager and all of its
subcontractors, if any, must, as a material condition of this agreement and
prior to the commencement of any work under and any renewal of this agreement,
deliver to Sprint PCS a certificate of insurance, satisfactory in form and
content to Sprint PCS, evidencing that the above insurance, including waiver of
subrogation, is in force and will not be canceled or materially altered without
first giving Sprint PCS at least 30 days prior written notice and that all
coverages are primary to any insurance carried by Sprint PCS, its directors,
officers, employees, agents or representatives.
Nothing contained in this Section 12.3.3 will limit Manager's liability to
Sprint PCS, its directors, officers, employees, agents or representatives to the
limits of insurance certified or carried.
13. INDEMNIFICATION
13.1 Indemnification by Sprint PCS. Sprint PCS agrees to indemnify, defend
and hold harmless Manager, its directors, managers, officers, employees, agents
and representatives 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,
employees, agents and representatives arising from or relating to the violation
by Sprint PCS of any law, regulation or ordinance applicable to Sprint PCS or by
Sprint PCS' breach of any representation, warranty or covenant contained in this
agreement or any other agreement between Sprint PCS or Sprint PCS' Related
Parties and Manager or Manager's Related Parties except where and to the extent
the claim, demand, cause of action, loss, action, damage, liability and/or
expense results solely from the negligence or willful misconduct of Manager.
13.2 Indemnification by Manager. Manager agrees to indemnify, defend and
hold harmless Sprint PCS and Sprint, and their respective directors, managers,
officers, employees, agents and representatives 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 PCS or
Sprint, and their respective directors, managers, officers, employees, agents
and representatives arising from or relating to Manager's violation of any law,
regulation or ordinance applicable to Manager, Manager's breach of any
representation, warranty or covenant contained in this agreement or any other
agreement between Manager or Manager's Related Parties and Sprint PCS and Sprint
PCS' Related Parties, Manager's ownership of the Operating Assets or the
operation of the Service Area Network, or the actions or failure to act of any
of Manager's contractors, subcontractors, agents, directors, managers, officers,
employees and representatives of any of them in the performance of any work
under this agreement, except where and to the extent the claim, demand, cause of
action, loss, action, damage, liability and expense results solely from the
negligence or willful misconduct of Sprint PCS or Sprint, as the case may be.
13.3 Procedure.
<PAGE>
13.3.1 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 13.3.1 does not modify
the indemnification obligations of this provision, except if Indemnitee is
harmed by failure to provide timely notice to Indemnitor, then Indemnitor does
not have to indemnify Indemnitee for the harm caused by the failure to give the
timely notice.
13.3.2 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 proceeding, at its expense.
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
the prior written approval of Indemnitee, which approval will 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.
13.3.3 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 being or ceases to be conducted, Indemnitee has the
right to dispute and defend 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
13.3.3. Indemnitee is not permitted to settle the dispute or claim without the
prior written approval of Indemnitor, which approval will not be unreasonably
withheld.
13.3.4 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.
14. DISPUTE RESOLUTION
14.1 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 any 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.
<PAGE>
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 12.1.2 and 12.1.3, 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 14.1.
14.2 Unable to Resolve. If a dispute has not been resolved within 60 days
after the notifying party's notice, either party may continue to operate under
this agreement and sue the other party for damages or seek other appropriate
remedies as provided in this agreement. If, and only if, this agreement does not
provide a remedy (as in the case of Sections 3.4 and 4.5, where the parties are
supposed to reach an agreement), then either party may give the other party
written notice that it wishes to resolve the dispute or claim arising out of the
parties' inability to agree under such Sections of this agreement by using the
arbitration procedure set forth in this Section 14.2. Such arbitration will
occur in Kansas City, Missouri, unless the parties otherwise mutually agree,
with the precise location being as agreed upon by the parties or, absent such
agreement, at a location in Kansas City, Missouri selected by Sprint PCS. Such
arbitration will be conducted pursuant to the procedures prescribed by the
Missouri Uniform Arbitration Act, as amended from time to time, or, if none,
pursuant to the rules then in effect of the American Arbitration Association (or
at any other place and by any other form of arbitration mutually acceptable to
the parties). Any award rendered in such arbitration will be confidential and
will be final and conclusive upon the parties, and a judgment on the award may
be entered in any court of the forum, state or federal, having jurisdiction. The
expenses of the arbitration will be borne equally by the parties to the
arbitration, except that each party must pay for and bear the cost of its own
experts, evidence, and attorneys' fees.
The parties must each, within 30 days after either party gives notice to
the other party of the notifying party's desire to resolve a dispute or claim
under the arbitration procedure in this Section 14.2, designate an independent
arbitrator, who is knowledgeable with regard to the wireless telecommunications
industry, to participate in the arbitration hearing. The two arbitrators thus
selected will select a third independent arbitrator, who is knowledgeable with
regard to the wireless telecommunications industry, who will act as chairperson
of the board of arbitration. If, within 15 days after the day the last of the
two named arbitrators is appointed, the two named arbitrators fail to agree upon
the third, then at the request of either party, the third arbitrator shall be
selected pursuant to the rules then in effect of the American Arbitration
Association. The three independent arbitrators will comprise the board of
arbitration, which will preside over the arbitration hearing and will render all
decisions by majority vote. If either party refuses or neglects to appoint an
independent arbitrator within such 30-day period, the independent arbitrator who
has been appointed as of the 31st day after the notifying party's notice will be
the sole independent arbitrator and will solely preside over the arbitration
hearing. The arbitration hearing will commence no sooner than 30 days after the
date the last arbitrator is appointed and no later than 60 days after such date.
The arbitration hearing will be conducted during normal working hours on
Business Days without interruption or adjournment of more than 2 Business Days
at any one time or 6 Business Days in the aggregate.
The arbitrators will deliver their decision to the parties in writing
<PAGE>
within 10 days after the conclusion of the arbitration hearing. The arbitration
award will be accompanied by findings of fact and a statement of reasons for the
decision. There will be no appeal from the written decision, except as permitted
by applicable law. The arbitration proceedings, the arbitrators' decision, the
arbitration award, and any other aspect, matter, or issue of or relating to the
arbitration are confidential, and disclosure of such confidential information is
an actionable breach of this agreement.
Notwithstanding any other provision of this agreement, arbitration will
not be required of any issue for which injunctive relief is properly sought by
either party.
14.3 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 Section 14.1 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.
14.4 Tolling of Cure Periods. Any cure period under Section 11.3 that is
less than 90 days will be tolled during the pendency of the dispute resolution
process. Any cure period under Section 11.3 that is 90 days or longer will not
be tolled during the pendency of the dispute resolution process.
15. REPRESENTATIONS AND WARRANTIES
Each party for itself makes the following representations and warranties
to the other party:
15.1 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.
15.2 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.
15.3 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, (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.
15.4 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.
<PAGE>
16. REGULATORY COMPLIANCE
16.1 Regulatory Compliance. Manager will construct, operate, and manage
the Service Area Network in compliance with applicable federal, state, and local
laws and regulations, including Siting Regulations. Nothing in this Section 16.1
will limit Manager's obligations under Section 2.2 and the remainder of this
Section 16. Manager acknowledges that failure to comply with applicable federal,
state, and local laws and regulations in its construction, operation, and
management of the Service Area Network may subject the parties and the License
to legal and administrative agency actions, including forfeiture penalties and
actions that affect the License, such as license suspension and revocation, and
accordingly, Manager agrees that it will cooperate with Sprint PCS to maintain
the License in full force and effect.
Manager will write and implement practices and procedures governing
construction and management of the Service Area Network in compliance with
Siting Regulations. Manager will make its Siting Regulations practices and
procedures available upon request to Sprint PCS in the manner specified by
Sprint PCS for its inspection and review, and Manager will modify those Siting
Regulations practices and procedures as may be requested by Sprint PCS. Every
six months, and at the request of Sprint PCS, Manager will provide a written
certification from one of Manager's chief officers that Manager's Service Area
Network complies with Siting Regulations. Manager's first certification of
compliance with Siting Regulations will be provided to Sprint PCS six months
after the date of this agreement.
Manager will conduct an audit and physical inspection of its Service Area
Network at the request of Sprint PCS to confirm compliance with Siting
Regulations, and Manager will report the results of the audit and physical
inspection to Sprint PCS in the form requested by Sprint PCS. Manager will bear
the cost of Siting Regulations compliance audits and physical inspections
requested by Sprint PCS.
Manager will retain for 3 years records demonstrating compliance with
Siting Regulations, including compliance audit and inspection records. Manager
will make those records available upon request to Sprint PCS for production,
inspection, and copying in the manner specified by Sprint PCS. Sprint PCS will
bear the cost of production, inspection, and copying.
16.2 FCC Compliance. The parties agree to comply with all applicable FCC
rules governing the License or the Service Area Network and specifically agree
as follows:
(a) The party billing a customer will advise the customer that
service is provided over spectrum licensed to Sprint PCS. Neither Manager nor
Sprint PCS will represent itself as the legal representative of the other before
the FCC or any other third party, but will cooperate with each other with
respect to FCC matters concerning the License or the Service Area Network.
(b) Sprint PCS will use commercially reasonable efforts to maintain
the License in accordance with the terms of the License and all applicable laws,
policies and regulations and to comply in all material respects with all other
legal requirements applicable to the operation of the Sprint PCS Network and its
business. Sprint PCS has sole responsibility, except as specifically provided
otherwise in Section 2.2, for keeping the License in full force and effect and
for preparing submissions to the FCC or any other relevant federal, state or
local authority of all reports, applications, interconnection agreements,
renewals, or other filings or documents. Manager must cooperate and coordinate
with Sprint PCS' actions to comply with regulatory requirements, which
cooperation and coordination must include, without limitation, the provision to
Sprint PCS of all information that Sprint PCS deems necessary to comply with the
regulatory requirements. Manager must refrain from taking any action that could
<PAGE>
impede Sprint PCS from fulfilling its obligations under the preceding sentence,
and must not take any action that could cause Sprint PCS to forfeit or cancel
the License.
(c) Sprint PCS and Manager are familiar with Sprint PCS' responsibility
under the Communications Act of 1934, as amended, and applicable FCC rules.
Nothing in this agreement is intended to diminish or restrict Sprint PCS'
obligations as an FCC Licensee and both parties desire that this agreement and
each party's obligations under this agreement be in compliance with the FCC
rules.
(d) Nothing in this agreement will preclude Sprint PCS from permitting
or facilitating resale of Sprint PCS Products and Services to the extent
required or elected under applicable FCC regulations. Manager will take the
actions necessary to facilitate Sprint PCS' compliance with FCC regulations. To
the extent permitted by applicable regulations, Sprint PCS will not authorize a
reseller that desires to sell services and products in only the Service Area to
resell Sprint PCS wholesale products and services, unless Manager agrees in
advance to such sales.
(e) If a change in FCC policy or rules makes it necessary to obtain FCC
consent for the implementation, continuation or further effectuation of any term
or provision of this agreement, Sprint PCS will use all commercially reasonable
efforts diligently to prepare, file and prosecute before the FCC all petitions,
waivers, applications, amendments, rule-making comments and other related
documents necessary to secure and/or retain FCC approval of all aspects of this
agreement. Manager will use commercially reasonable efforts to provide to Sprint
PCS any information that Sprint PCS may request from Manager with respect to any
matter involving Sprint PCS, the FCC, the License, the Sprint PCS Products and
Services or any other products and services approved under Section 3.2. Each
party will bear its own costs of preparation of the documents and prosecution of
the actions.
(f) If the FCC determines that this agreement is inconsistent with the
terms and conditions of the License or is otherwise contrary to FCC policies,
rules and regulations, or if regulatory or legislative action subsequent to the
date of this agreement alters the permissibility of this agreement under the
FCC's rules or other applicable law, rules or regulations, then the parties must
use best efforts to modify this agreement as necessary to cause this agreement
(as modified) to comply with the FCC policies, rules, regulations and applicable
law and to preserve to the extent possible the economic arrangements set forth
in this agreement.
(g) Manager warrants and represents to Sprint PCS that Manager is and
at all times during the Term of this agreement will be in compliance with FCC
rules and regulations regarding limits on classes and amounts of spectrum that
may be owned by Manager. Manager agrees that in the event that Manager is or at
any time becomes in violation of such rules and regulations, Manager will
promptly take all action necessary and appropriate (other than terminating this
agreement) to cure such violation and comply with such rules and regulations,
including without limitation disposing of its direct or indirect interests in
cellular licenses.
16.3 Marking and Lighting. Manager will conform to applicable FAA standards
when Siting Regulations require marking and lighting of Manager's Service Area
Network cell sites. Manager will cooperate with Sprint PCS in reporting lighting
malfunctions as required by Siting Regulations.
16.4 Regulatory Notices. Manager will, within 2 Business Days after its
receipt, give Sprint PCS written notice of all oral and written communications
it receives from regulatory authorities (including but not limited to the FCC,
the FAA, state public service commissions, environmental authorities, and
historic preservation authorities) and complaints respecting Manager's
<PAGE>
construction, operation, and management of the Service Area Network that could
result in actions affecting the License as well as written notice of the details
respecting such communications and complaints, including a copy of any written
material received in connection with such communications and complaints. Manager
will cooperate with Sprint PCS in responding to such communications and
complaints received by Manager. Sprint PCS has the right to respond to all such
communications and complaints, with counsel and consultants of its own choice.
If Sprint PCS chooses to respond to such communications and complaints, Manager
will not respond to them without the consent of Sprint PCS, and Manager will pay
the costs of Sprint PCS responding to such communications and complaints,
including reasonable attorneys' and consultants' fees, investigation costs, and
all other reasonable costs and expenses incurred by Sprint PCS.
16.5 Regulatory Policy-Setting Proceedings. Manager will not intervene in
or otherwise participate in a rulemaking, investigation, inquiry, contested
case, or similar regulatory policy setting proceedings before a regulatory
authority concerning the License or construction, operation, and management of
the Service Area Network and the Sprint PCS business operated using the Service
Area Network.
17. GENERAL PROVISIONS
17.1 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 as 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 time 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.
17.2 Construction. This agreement will be construed simply according to
its fair meaning and not strictly for or against either party.
17.3 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.
17.4 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.
17.5 Counterpart Execution. This agreement will be executed by affixing
the parties' signatures to the Master Signature Page, which Master Signature
Page, and thus this agreement, may be executed in any number of counterparts
with the same effect as if both parties had signed the same document. All
counterparts will be construed together and will constitute one agreement.
17.6 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.
<PAGE>
17.7 Entire Agreement; Amendments. The provisions of this agreement, the
Services Agreement and the Trademark License Agreements (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 PCS' right
to amend the Program Requirements in accordance with Section 9.2 and its right
to unilaterally modify and amend certain other provisions as expressly provided
in this agreement, this agreement may be modified or amended only by a written
amendment signed by persons or entities authorized to bind each party and, with
respect to the sections set forth for Sprint on the Master Signature Page, the
persons or entities authorized to bind Sprint.
17.8 Limitation on Rights of Others. Except as set forth on the Master
Signature Page for Sprint, 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.
17.9 Waivers.
17.9.1 Waivers--General. The observance of any term of this agreement
may be waived (whether generally or in a particular instance and 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.
17.9.2 Waivers--Manager. Manager is not in breach of any covenant in
this agreement and no Event of Termination will have occurred as a result of the
occurrence of any event, if Manager had delegated to Sprint Spectrum under the
Services Agreement (or any successor to that agreement) responsibility for
taking any action necessary to ensure compliance with the covenant or to prevent
the occurrence of the event.
17.9.3 Force Majeure. Neither Manager nor Sprint PCS, as the case may
be, is in breach of any covenant in this agreement and no Event of Termination
will occur as a result of the failure of such party to comply with such
covenant, if such party's non-compliance with the covenant results primarily
from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the party's ability to comply with the
covenant;
(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 services; 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 such party.
17.10 Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT
<PAGE>
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.
17.11 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 Service Area Network or of
the License. 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 expressly provides that Related Parties are bound.
17.12 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.
17.13 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 unenforceable provision with
an enforceable provision that reflects the original intent of the parties.
17.14 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.
17.15 No Assignment; Exceptions.
17.15.1 General. Neither party will, directly or indirectly, assign
this agreement or any of the party's rights or obligations under this agreement
without the prior written consent of the other party, except as otherwise
specifically provided in this Section 17.15. Sprint PCS may deny its consent to
any assignment or transfer in its sole discretion except as otherwise provided
in this Section 17.15.
Any attempted assignment of this agreement in violation of this Section
17.15 will be void and of no effect.
A party may assign this agreement to a Related Party of the party, except
that Manager cannot assign this agreement to a Related Party that is a
significant competitor of Sprint, Sprint PCS or their respective Related Parties
in the telecommunications business. Except as provided in Section 17.15.5, an
assignment does not release the assignor from its obligations under this
agreement unless the other party to this agreement consents in writing in
advance to the assignment and expressly grants a release to the assignor.
Except as provided in Section 17.15.5, Sprint PCS must not assign this
agreement to any entity that does not also own the License covering the Service
Area directly or indirectly through a Related Party. Manager must not assign
this agreement to any entity (including a Related Party), unless such entity
assumes all rights and obligations under the Services Agreement, the Trademark
License Agreements and any related agreements.
17.15.2 Assignment Right of Manager to Financial Lender. If Manager
is no longer able to satisfy its financial obligations and other duties, then
Manager has the right to assign its obligations and rights under this agreement
<PAGE>
to its Financial Lender, if:
(a) Manager or Financial Lender provides Sprint PCS at least 10 days
advance written notice of such assignment;
(b) Financial Lender cures or commits to cure any outstanding material
breach of this agreement by Manager prior to the end of any applicable cure
period. If Financial Lender fails to make a timely cure then Sprint PCS may
exercise its rights under Section 11;
(c) Financial Lender agrees to serve as an interim trustee for the
obligations and duties of Manager under this agreement for a period not to
exceed 180 days. During this interim period, Financial Lender must identify a
proposed successor to assume the obligations and rights of Manager under this
agreement;
(d) Financial Lender assumes all of Manager's rights and obligations
under the Services Agreement, the Trademark License Agreements and any related
agreements; and
(e) Financial Lender provides to Sprint PCS advance written notice of
the proposed successor to Manager that Financial Lender has identified
("Successor Notice"). Sprint PCS may give to Financial Lender written notice of
Sprint PCS' decision whether to consent to such proposed successor within 30
days after Sprint PCS' receipt of the Successor Notice. Sprint PCS may not
unreasonably withhold such consent, except that Sprint PCS is not required to
consent to a proposed successor that:
(i) has, in the past, materially breached prior agreements with
Sprint PCS or its Related Parties;
(ii) is a significant competitor of Sprint PCS or its Related
Parties in the telecommunications business;
(iii) does not meet Sprint PCS' reasonable credit criteria;
(iv) fails to execute an assignment of all relevant documents
related to this agreement including the Services Agreement and the
Trademark License Agreements; or
(v) refuses to assume the obligations of Manager under this
Agreement, the Services Agreement, the Trademark License Agreements and any
related agreements.
If Sprint PCS fails to provide a response to Financial Lender within 30 days
after receiving the Successor Notice, then the proposed successor is deemed
rejected. Any Financial Lender disclosed on the Build-out Plan on Exhibit 2.1 is
deemed acceptable to Sprint PCS.
17.15.3 Change of Control Rights. If there is a Change of Control of
Manager, then:
(a) Manager must provide to Sprint PCS advance written notice detailing
relevant and appropriate information about the new ownership interests effecting
the Change of Control of Manager.
(b) Sprint PCS must provide to Manager written notice of its decision
whether to consent to or reject the proposed Change of Control within 30 days
after its receipt of such notice. Sprint PCS may not unreasonably withhold such
consent, except that Sprint PCS is not required to consent to a Change of
Control in which:
(i) the final controlling entity or any of its Related Parties
<PAGE>
has in the past materially breached prior agreements with Sprint PCS or
its Related Parties;
(ii) the final controlling entity or any of its Related
Parties is a significant competitor of Sprint PCS or its Related Parties
in the telecommunications business;
(iii) the final controlling entity does not meet Sprint PCS'
reasonable credit criteria;
(iv) the final controlling entity fails to execute an
assignment of all relevant documents related to this agreement including
the Services Agreement and the Trademark License Agreements; or
(v) the final controlling entity or its Related Parties refuse
to assume the obligations of Manager under this agreement.
(c) In the event that Sprint PCS provides notice that it does not
consent to the Change of Control, Manager is entitled to either:
(i) contest such determination pursuant to the dispute
resolution procedure in Section 14; or
(ii) abandon the proposed Change of Control.
(d) Nothing in this agreement requires Sprint PCS' consent to:
(i) a public offering of Manager that does not result in a
Change of Control (i.e., a shift from one party being in control to no
party being in control is not a Change of Control); or
(ii) a recapitalization or restructuring of the ownership
interests of Manager that Manager determines is necessary to:
(A) facilitate the acquisition of commercial financing and
lending arrangements that will support Manager's operations and efforts
to fulfill its obligations under this agreement; and
(B) that does not constitute a Change of Control.
(e) "Change of Control" means a situation where in any one
transaction or series of related transactions occurring during any 365-day
period, the ultimate parent entity of the Manager changes. The ultimate parent
entity is to be determined using the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 rules. A Change of Control does not occur if:
(i) a party changes the form of its organization without
materially changing their ultimate ownership (e.g., converting from a
limited partnership to a limited liability company); or
(ii) one of the owners of the party on the date of this
agreement or on the date of the closing of Manager's initial equity
offering for purposes of financing its obligations under this agreement
ultimately gains control over the party, unless such party is a
significant competitor of Sprint PCS or Sprint PCS' Related Parties in the
telecommunications business.
17.15.4 Right of First Refusal. Notwithstanding any other provision
in this agreement, Manager grants Sprint PCS the right of first refusal
described below. If Manager determines it wishes to sell an
Offered Interest, upon receiving any Offer to purchase an Offered Interest,
Manager agrees to promptly deliver to Sprint PCS an Offer Notice. The Offer
Notice is deemed to constitute an offer to sell to Sprint PCS, on the terms set
<PAGE>
forth in the Offer, all but not less than all of the Offered Interest. Sprint
PCS will have a period of 60 days from the date of the Offer Notice to notify
Manager that it agrees to purchase the Offered Interest on such terms. If Sprint
PCS timely agrees in writing to purchase the Offered Interest, the parties will
proceed to consummate such purchase not later than the 180th day after the date
of the Offer Notice. If Sprint PCS does not agree within the 60-day period to
purchase the Offered Interest, Manager will have the right, for a period of 120
days after such 60th day, subject to the restrictions set forth in this Section
17, to sell to the person or entity identified in the Offer Notice all of the
Offered Interest on terms and conditions no less favorable to Manager than those
set forth in the Offer. If Manager fails to sell the Offered Interest to such
person or entity on such terms and conditions within such 120-day period,
Manager will again be subject to the provisions of this Section 17.15.4 with
respect to the Offered Interest.
17.15.5 Transfer of Sprint PCS Network. Sprint PCS may sell, transfer
or assign the Sprint PCS Network or any of the Licenses, including its rights
and obligations under this agreement, the Services Agreement and any related
agreements, to a third party without Manager's consent so long as the third
party assumes the rights and obligations under this agreement and the Services
Agreement. Manager agrees that Sprint PCS and Sprint PCS' Related Parties will
be released from any and all obligations under and with respect to any and all
such agreements upon such sale, transfer or assignment in accordance with this
Section 17.15.5, without the need for Manager to execute any document to effect
such release.
17.16 Provision of Services by Sprint Spectrum. As described in the
Recitals, the party or parties to this agreement that own the Licenses are
referred to in this agreement as "Sprint PCS." Sprint Spectrum will provide most
or all of the services required to be provided by Sprint PCS under this
agreement on behalf of Sprint PCS, other than the services to be rendered by
Manager. For example, Sprint Spectrum is the party to the contracts relating to
the national distribution network, the roaming and long distance services, and
the procurement arrangements. Accordingly, Sprint PCS and Manager will deal with
Sprint Spectrum to provide many of the attributes of the Sprint PCS Network.
17.17 Number Portability. Manager understands that the manner in which
customers are assigned to the Service Area Network could change as telephone
numbers become portable without any relation to the service area in which they
are initially activated. To the extent the relationship between NPA-NXX and the
Service Area changes, Sprint PCS will develop an alternative system to attempt
to assign customers who primarily live and work in the Service Area to the
Service Area. The terms of this agreement will be deemed to be amended to
reflect the new system that Sprint PCS develops.
17.18 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.
17.19 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.
17.20 Expense. Each party bears the expense of complying with this agreement
except as otherwise expressly provided in this agreement. The parties must not
allocate any employee cost or other cost to the other party, except as otherwise
provided in the Program Requirements or to the extent the parties expressly
agree in advance to the allocation.
<PAGE>
17.21 General Terms.
(a) This agreement 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.
17.22 Conflicts with Other Agreements. The provisions of this Management
Agreement govern over those of the Services Agreement if the provisions
contained in this agreement conflict with analogous provisions in the Services
Agreement. The provisions of each Trademark License Agreement governs over those
of this agreement if the provisions contained in this agreement conflict with
analogous provisions in a Trademark License Agreement.
17.23 Survival Upon Termination. The provisions of Sections 10, 11.4, 11.5,
11.6, 12.2, 13, 14, 16 and 17 of this agreement will survive any termination of
this agreement.
17.24 Announced Transaction. Sprint Enterprises, L.P., TCI Telephony
Services, Inc., Comcast Telephony Services and Cox Telephony Partnership have
executed a Restructuring and Merger Agreement and related agreements that
provide for restructuring the ownership of Sprint Spectrum L.P., SprintCom,
Inc., PhillieCo Partners I, L.P., and Cox Communications PCS, L.P. Upon
consummation of the transactions contemplated by those agreements, Sprint would
control each of the four entities. While Sprint and Sprint PCS anticipate the
proposed transactions will be consummated, there can be no assurances.
17.25 Additional Terms and Provisions. Certain additional and supplemental
terms and provisions of this agreement, if any, are set forth in the Addendum to
Sprint PCS Management Agreement attached hereto and incorporated herein by this
reference. Manager represents and warrants that the Addendum also describes all
existing contracts and arrangements (written or verbal) that relate to or affect
the rights of Sprint PCS or Sprint under this agreement (e.g., agreements
relating to long distance telephone services (Section 3.4) or backhaul and
transport services (Section 3.7)).
17.26 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.
17.27 Agent Authorization. Because of the close operational relationship
<PAGE>
between the parties listed together below, each entity authorizes the other
entity to act on its behalf in every capacity under this agreement:
(a) WirelessCo, L.P. and Sprint Spectrum L.P.; (b) Cox PCS License, L.L.C. and
Cox Communications PCS, L.P.; (c) APC PCS, LLC and American PCS Communications,
LLC; and (d) PhillieCo, L.P. and PhillieCo Partners I, L.P.
<PAGE>
SPRINT PCS/INDEPENDENT WIRELESS ONE CORPORATION
MASTER SIGNATURE PAGE
This Master Signature Page is dated and effective as of February 9, 1999
(the "Effective Date"). This document provides the means by which each of the
undersigned entities executes and becomes a party to and bound by, to the extent
set forth above such party's signature, the Management Agreement, Services
Agreement, Sprint Trademark and Service Mark License Agreement, Sprint Spectrum
Trademark and Service Mark License Agreement, and Addendum I to the Management
Agreement. This document may be executed in one or more counterparts. The Notice
Address Schedule attached to this document sets forth the addresses to which
notices should be sent under the agreements.
THE MANAGEMENT AGREEMENT AND THE SERVICES AGREEMENT
CONTAIN BINDING ARBITRATION PROVISIONS THAT MAY BE
ENFORCED BY THE PARTIES TO THOSE AGREEMENTS
SPRINT SPECTRUM L.P.
For and in consideration of the covenants contained in the Management
Agreement, Services Agreement, Sprint Spectrum Trademark and Service Mark
License Agreement, and Addendum I to the Management Agreement (collectively, the
"Executed Agreements"), and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sprint Spectrum L.P. executes,
becomes a party to, and agrees to be bound by and to perform its obligations
under each of the Executed Agreements as of the Effective Date. The execution by
Sprint Spectrum L.P. of this Master Signature Page has the same force and effect
as if Sprint Spectrum L.P. executed individually each of the Executed
Agreements.
SPRINT SPECTRUM L.P.
By: /s/ Bernard A. Bianchino
------------------------
Bernard A. Bianchino,
Chief Business Development Officer
<PAGE>
SPRINT COMMUNICATIONS COMPANY, L.P.
For and in consideration of the covenants contained in the Management
Agreement, Sprint Trademark and Service Mark License Agreement, and Addendum I
to the Management Agreement (collectively, the "Executed Agreements"), and for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sprint Communications Company, L.P. executes, becomes a party to,
and agrees to be bound by and to perform its obligations under each of the
Executed Agreements as of the Effective Date; provided, that Sprint
Communications Company, L.P. only agrees to be bound by and perform its
obligations under, and will enjoy the benefits given to it under the with
respect to only those provisions that expressly apply to Sprint Communications
Company, L.P., including its obligations and benefits under Sections 2, 3 and
10. The execution by Sprint Communications Company, L.P. of this Master
Signature Page has the same force and effect as if Sprint Communications
Company, L.P. executed individually each of the Executed Agreements.
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ William R. Blessing
-----------------------------
William R. Blessing
Vice President, Wireless
INDEPENDENT WIRELESS ONE CORPORATION
For and in consideration of the covenants contained in the Management
Agreement, Services Agreement, Sprint Trademark and Service Mark License
Agreement, Sprint Spectrum Trademark and Service Mark License Agreement, and
Addendum I to the Management Agreement (collectively, the "Executed
Agreements"), and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Independent Wireless One
Corporation executes, becomes a party to, and agrees to be bound by and to
perform its obligations under each of the Executed Agreements as of the
Effective Date. The execution by Independent Wireless One Corporation of this
Master Signature Page has the same force and effect as if Independent Wireless
One Corporation executed individually each of the Executed Agreements.
INDEPENDENT WIRELESS ONE CORPORATION
By: /s/ J.K. Hage III
------------------------------
Name: J.K. Hage III
Title: Exec. V.P.
<PAGE>
NOTICE ADDRESS SCHEDULE
The addresses to which notice is to be sent pursuant to Section 17.1 of the
Management Agreement, Section 9.1 of the Services Agreement, Section 15.1 of the
Sprint Trademark and Service Mark License Agreement, or Section 15.1 of the
Sprint Spectrum Trademark and Service Mark License Agreement are as follows:
SPRINT SPECTRUM L.P.
4900 Main, 12th Floor with a copy to: 4900 Main, 11th Floor
Kansas City, Missouri 64112 Kansas City, Missouri 64112
Telephone: (816) 559-1000 Telephone: (816) 559-1000
Telecopier: (816) 559-1290 Telecopier: (816) 559-2591
Attention: Chief Executive Officer Attention: General Counsel
SprintCom, Inc. and
SPRINT COMMUNICATIONS COMPANY, L.P. (and notices regarding the Sprint Brands)
c/o Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Telephone: 913-624-3326
Telecopier: 913-624-8233
Attention: Corporate Secretary
Mail Stop: KSWESA0110
INDEPENDENT WIRELESS ONE CORPORATION
c/o Hage and Hobaica
610 Charlotte Street
Utica, NY 13503
Telephone: 315-797-9850
Telecopies: 315-797-1721
Attention: Chief Executive Officer
<PAGE>
ADDENDUM I
TO
SPRINT PCS MANAGEMENT AGREEMENT
<TABLE>
<CAPTION>
<S> <C>
Manager: Independent Wireless One Corporation
Service Area: BTA No. 7 Albany-Schenectady, NY
BTA No. 43 Binghamton, NY
BTA No. 51 Boston, MA - Only Strafford and Rockingham Counties
BTA No. 63 Burlington, VT
BTA No. 127 Elmira-Corning-Hornell, NY
BTA No. 164 Glens Falls, NY
BTA No. 208 Ithaca, NY
BTA No. 227 Keene, NH
BTA No. 249 Lebanon-Claremont, NH
BTA No. 251 Lewiston-Auburn, ME - Only Coos County, NH
BTA No. 274 Manchester-Nashua-Concord, NH - Excluding the
metropolitan area of Nashua, NH
BTA No. 321 New York, NY - Only Orange and Sullivan Counties
BTA No. 333 Oneonta, NY
BTA No. 351 Pittsfield, MA
BTA No. 352 Plattsburgh, NY
BTA No. 361 Poughkeepsie-Kingston, NY
BTA No. 388 Rutland-Bennington, VT
BTA No. 438 Syracuse, NY
BTA No. 453 Utica-Rome, NY
BTA No. 463 Watertown, NY
</TABLE>
This Addendum contains certain additional and supplemental terms and
provisions of that certain Sprint PCS Management Agreement (the "Management
Agreement") entered into contemporaneously with and by the same parties as this
Addendum. The terms and provisions of this Addendum control, supersede and
amend any conflicting terms and provisions contained in the Management
Agreement. Except for express modifications made in this Addendum, the
Management Agreement continues in full force and effect.
Capitalized terms used and not otherwise defined in this Addendum have the
meanings ascribed to them in the Management Agreement. Section and Exhibit
references are to Sections and Exhibits of the Management Agreement unless
otherwise noted.
The Management Agreement is modified as follows
1. Exclusivity of Service Area. The first sentence of Section 2.3 is
amended by amending the phrase "will own, operate, build or manage another
wireless mobility communications network" to read as follows: "will directly or
indirectly own, operate, build, or manage another wireless mobility
communications network or sell Sprint PCS Products and Services".
<PAGE>
2. No Incumbent Local Exchange Carrier. Sprint PCS acknowledges that as
of the date of this agreement neither Sprint PCS nor any of its Related Parties
owns an "incumbent local exchange carrier" in the Service Area, as that term is
used in Section 2.3(c).
3. Purchase of Assets. Manager may purchase from Sprint PCS under the
terms of the Asset Purchase Agreement attached as Exhibit A (also shown as
---------
Exhibit 2.6 to Management Agreement) the assets listed on Schedule A to such
----------
agreement. The parties recognize and acknowledge that a due diligence
investigation will be undertaken and completed by Manager prior to its
determination of whether to make the asset purchase contemplated under Section
2.6. Manager shall be responsible for obtaining the consents and releases of
the various landlords for the leases being acquired by Manager. The purchase
price for the assets is set forth in the Asset Purchase Agreement.
For the right to manage operations in the Service Area, which includes
providing Sprint PCS Services to current Sprint PCS Subscribers, Manager agrees
to pay to Sprint PCS the amount equal to the product of {***} multiplied by
the number of Subscribers as of the date of the closing of the Asset Purchase
Agreement. For the purposes of this paragraph, "Subscriber" means any
subscriber of Sprint PCS Services with an NPA-NXX in the Service Area who is not
more than 40 days past due in payment for the Sprint PCS Services.
4. Sprint Spectrum Employees. Manager will exercise commercially
reasonable efforts to hire all Sprint Spectrum employees working in the Service
Area.
5. Non-competition. The phrase "and Manager's Related Parties" is deleted
from the first line of the second paragraph of Section 3.6. The phrase "or
Manager's Related Parties" is deleted from the next-to-last line of the second
paragraph of Section 3.6. However, if a Related Party of Manager offers a
product or service of a significant competitor of Sprint PCS or its Related
Parties in the telecommunications business, then Manager will not allow such
Related Party of Manager to offer any Sprint PCS Products or Services.
6. Use of Brands. Section 5.1(c) is amended to read as follows:
"(c) Neither Manager nor any of its Related Parties may market,
promote, advertise, distribute, lease or sell (i) any of the Sprint PCS
Products and Services on a non-branded, "private label" basis or under any
brand, trademark, trade name or trade dress other than the Brands, except
(A) for sales to resellers required under this agreement, or (B) as
permitted under the Trademark License Agreements; or (ii) any of Manager's
Products and Services using the Brands or other than as permitted under the
Trademark License Agreements."
7. Non-renewal Rights of Sprint PCS. Section 11.2.2(c) is revised to read
as follows:
"(c) this agreement expires (after 50 years) with neither party giving
a written notice of non-renewal;"
8. Termination of License. The first sentence of Section 11.3.1(a) is
revised by inserting the following language after the word "License": "and after
all appeals are exhausted".
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
9. Federal Contractor Compliance. A new Section 17.28 the text of which
is attached to this Addendum as Exhibit B is added to the agreement.
---------
10. Year 2000 Compliance. The following Section 17.29 is added to the
--------------------
agreement:
Section 17.29 Year 2000 Compliance. Manager represents and warrants
----------------------------------
that its Service Area Network and any system used to support its Service
Area Network, including without limitation billing, ordering and customer
services ("Service Area Network"), will be capable of correctly processing,
providing and receiving date data, as well as properly exchanging date data
with all products (for example hardware, software and firmware) with which
its Service Area Network is designed to be used and will not malfunction or
fail to function due to an inability to correctly process date data in
conformance with Sprint PCS' requirements for "Year 2000 Compliance". If
the Service Area Network falls to operate as warranted, Manager will, at
its own expense, make the necessary repairs, replacements or upgrades to
properly correct the failure and provide a Year 2000 Compliant Service Area
Network.
"Year 2000 Compliance" means the functions, calculations, and other
computing processes of the Service Area Network (collectively "Processes")
which perform and otherwise process, date/time data in a consistent manner,
regardless of the date in time on which the Processes are actually
performed or the dates used in such data or the nature of the date/time
data input, whether before, during or after January 1, 2000 and whether or
not the date/time data is affected by leap years. To the extent any part
of the Service Area Network is intended to be used in combination with
other software, hardware or firmware, it will properly exchange date/time
data with such software, hardware or firmware. The Service Area Network
will accept and respond to two-digit year-date input, correcting or
supplementing as necessary, and store, print, display or pass date/time
data in a manner that is unambiguous as to century. No date/time data will
cause any part of the Service Area Network to perform an abnormally ending
routine or function within the Processes or generate incorrect final values
or invalid results.
11. Change regarding Payment Fees in Service Agreement. The second
sentence of Section 3.1 of the Services Agreement is deleted in its entirety and
replaced by the following two sentences: "Except with respect to fees paid for
billing-related services, 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. With respect to fees paid for billing-related services, the monthly
charge for any fees based on the number of subscribers will be based on the
number of gross activations in the month for which the charge is being
calculated plus the number of subscribers of the Service Area Network on the
last day of the prior calendar month.
[The remainder of this page is intentionally left blank]
<PAGE>
Exhibit B to Addendum I
Section 17.28. Federal Contractor Compliance.
(1) The Manager will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or national
origin. The Manager will take affirmative action to ensure that applicants are
employed, and that employees are treated during employment without regard to
their race, color, religion, sex, or national origin. Such action shall include,
but not be limited to the following: Employment, upgrading, demotion, or
transfer; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including
apprenticeship. The Manager agrees to post in conspicuous places, available to
employees and applicants for employment, notices to be provided setting forth
the provisions of this nondiscrimination clause.
(2) The Manager will, in all solicitations or advertisements for
employees placed by or on behalf of the Manager, state that all qualified
applicants will receive considerations for employment without regard to race,
color, religion, sex, or national origin.
(3) The Manager will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided advising the said labor union or workers'
representatives of the Manager's commitments under this section, and shall post
copies of the Notice in conspicuous places available to employees and applicants
for employment.
(4) The Manager will comply with all provisions of Executive Order
11246 of September 24, 1965., and of the rules, regulations, and relevant orders
of the Secretary of Labor.
(5) The Manager will furnish all information and reports required by
Executive Order 11246 of September 24, 1965, and by rules, regulations, and
orders of the Secretary of Labor, or pursuant thereto, and will permit access to
his books, records, and accounts by the administering agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such rules,
regulations, and orders.
(6) In the event of the Manager's noncompliance with the
nondiscrimination clauses of this contract or with any of the said rules,
regulations, or orders, this contract may be canceled, terminated, or suspended
in whole or in part and the Manager may be declared ineligible for further
Government contracts or federally assisted construction contracts in accordance
with procedures authorized in Executive Order 11246 of September 24, 1965, and
such other sanctions may be imposed and remedies invoked as provided in
Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of
the Secretary of Labor, or as otherwise provided by law.
(7) The Manager will include the portion of the sentence immediately
preceding paragraph (1) and the provisions of paragraphs (1) through (7) in
every subcontract or purchase order unless exempted by rules, regulations, or
orders of the Secretary of Labor issued pursuant to section 204 of Executive
Order 11246 of September 24, 1965, so that such provisions will be binding upon
each subcontractor or vendor. The Manager will take such action with respect to
any subcontract or purchase order as the administering agency may direct as a
means of enforcing such provisions, including sanctions for noncompliance.
Provided, however, that in the event a Manager becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such
direction by the administering agency the Manager may request the United States
to enter into such litigation to protect the interests of the United States.
<PAGE>
(8) In consideration of contracts with Sprint PCS, the Manager agrees
to execute the Certificate of Compliance attached hereto as Attachment I and
further agrees that this certification shall be part of each contract between
Sprint PCS and Manager. The Manager will include Attachment I in every
subcontract or purchase order, so that such provisions will be binding upon each
subcontractor.
<PAGE>
Attachment I to Exhibit B
CERTIFICATE OF COMPLIANCE WITH
FEDERAL REGULATIONS
In consideration of contracts with SPRINT SPECTRUM L.P., the undersigned
"contractor", "vendor" or "consultant" agrees to the following and further
agrees that this Certification shall be a part of each purchase order, supply
agreement, or contract between SPRINT SPECTRUM L.P. and the undersigned.
24. Equal Opportunity.
Executive Order 11246 is herein incorporated by reference.
25. Affirmative Action Compliance
If undersigned Contractor has 50 or more employees and if this contract is
for $50,000 or more, Contractor shall develop a written Affirmative Action
Compliance Program for each of its establishments, as required by rules
and regulations of the Secretary of Labor (41 CFR 60-1 and 60-2).
26. Affirmative Action for Special Disabled and Vietnam Era Veterans
If this contract exceeds $10,000, the undersigned Contractor certifies
that the Contractor does not discriminate against any employee or
applicant because the person is a special disabled or Vietnam Veteran and
complies with the rules, regulations and relevant orders of the Secretary
of Labor issued pursuant to the Vietnam Veterans Readjustment Assistance
Act of 1972, as amended.
Contractor hereby represents that it has developed and has on file, at
each establishment, affirmative action programs for Special Disabled and
Vietnam Era Veterans required by the rules and regulations of the
Secretary of Labor (41 CFR 60-250).
27. Affirmative Action for Handicapped Workers
If this contract exceeds $2,500, the undersigned Contractor certifies that
the Contractor does not discriminate against any employee or applicant
because of physical or mental handicap and complies with the rules,
regulations and relevant orders of the Secretary of Labor issued under the
Rehabilitation Act of 1973, as amended.
Contractor hereby represents that it has developed and has on file, at
each establishment, affirmative action programs for Handicapped Workers
required by the rules and regulations of the Secretary of Labor (41 CFR
60-741).
28. Employer Information Report (EEO-l Standard Form 100)
If undersigned Contractor has 50 or more employees and if this contract is
for $10,000 or more, Contractor shall complete and file government
Standard Form 100, Equal Employment Opportunity Employer Information
Report EEO-l, in accordance with instructions contained therein.
29. Compliance Review.
The undersigned Contractor certifies that it has not been subject to a
Government equal opportunity compliance review. If the Contractor has been
reviewed, that review occurred on ____________________ (date).
30. Utilization of Small Businesses, Small Disadvantaged Businesses, and
Women-Owned Small Business
<PAGE>
It is the policy of SPRINT SPECTRUM L.P., consistent with Federal
Acquisition Regulations (FAR 52.219-8 and FAR 52.219-13), that small
business concerns, small business concerns owned and controlled by
socially and economically disadvantaged individuals, and women-owned
businesses shall have the maximum practicable opportunity to participate
in performing subcontracts under Government contracts for which SPRINT
SPECTRUM L.P. is the Government's Prime Contractor. SPRINT SPECTRUM L.P.
awards contracts to small businesses to the fullest extent consistent with
efficient prime contract performance. The Contractor agrees to use its
best efforts to carry out this policy in the award of its subcontract to
the fullest extent consistent with the efficient performance of this
contract.
Contractor hereby represents that it __ is __ is not a small business, __
is __ is not a small business owned and controlled by socially and
economically disadvantaged individuals, and __ is __ is not a small
business controlled and operated as a women-owned small business as
defined by the regulations implementing the Small Business Act.
If the answer to any of the above is in the affirmative, Contractor will
complete SPRINT SPECTRUM L.P. Small/Minority/Women Owned Business Self
Certification Form.
This form is available from Mr. Ron Gier, Sprint PCS, 4900 Main Street,
Kansas City, Missouri 64112.
31. Certification of Nonsegregated Facilities
If this contract is expected to exceed $10,000, the undersigned Contractor
certifies as follows:
The Contractor certifies that the Contractor does not or will not maintain
or provide for its employees any segregated facilities at any of its
establishments, and that it does not and will not permit its employees to
perform services at any location, under its control, where segregated
facilities are maintained. The Contractor agrees that a breach of this
Certification is a violation of the Equal Opportunity provision of this
contract. As used in this Certification, the term "segregated facilities"
means any waiting rooms, work areas, rest rooms and wash rooms,
restaurants and other eating areas, time clocks, locker rooms and other
storage or dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided for
employees that are segregated by explicit directive or are in fact
segregated on the basis of race, color, religion, or national origin,
because of habit, local custom, or otherwise. Contractor further agrees
that (except where it has obtained identical certifications from proposed
subcontracts for specific time periods) it will obtain identical
certifications from proposed subcontractors prior to the award of
subcontracts exceeding $10,000 that are not exempt from the provisions of
the Equal Opportunity Clause; and that it will retain such certification
in its files.
32. Clean Air and Water
The undersigned Contractor certifies that any facility to be used in the
performance of this contract __ is __ is not listed on the Environmental
Protection Agency List of Violating Facilities.
The undersigned Contractor agrees to immediately notify SPRINT SPECTRUM
L.P., immediately upon the receipt of any communication from the
Administrator or a designee of the Environmental Protection Agency
indicating that any facility that the Contractor proposes to use for the
performance of the contract is under consideration to be listed on the EPA
<PAGE>
List of Violating Facilities. SPRINT SPECTRUM L.P. includes this
certification and agreement pursuant to FAR 52-223-1(c) which requires
including such paragraph (c) in every nonexempt subcontract.
Contractor:
_________________________________________
Company Name
_________________________________________
Address
_________________________________________
City State Zip
By ______________________________________
Name:
Title:
[The remainder of this page is intentionally left blank.]
<PAGE>
ADDENDUM II
TO
SPRINT PCS MANAGEMENT AGREEMENT
Manager: Independent Wireless One Corporation
Service Area: Albany-Schenectady, NY (BTA No. 7)
Binghamton, NY (BTA No. 43)
Boston, MA (BTA No. 51) - Only Strafford and Rockingham
Counties
Burlington, VT (BTA 63)
Elmira-Corning-Hornell, NY (BTA No. 127)
Glens Falls, NY (BTA No. 164)
Ithaca, NY (BTA No. 208)
Keene, NH (BTA No. 227)
Lebanon-Claremont, NH (BTA No. 249)
Lewiston-Auburn, ME (BTA No. 251) - Only Coos County, NH
Manchester-Nashua-Concord, NH (BTA No. 274) - Excluding
the metropolitan area of Nashua, NH
New York, NY (BTA No. 321) - Only Orange and Sullivan
Counties
Oneonta, NY (BTA No. 333)
Pittsfield, MA (BTA No. 351)
Plattsburgh, NY (BTA No. 352)
Poughkeepsie-Kingston, NY (BTA No. 361)
Rutland-Bennington, VT (BTA No. 388)
Syracuse, NY (BTA No. 438)
Utica-Rome, NY (BTA No. 453)
Watertown, NY (BTA No. 463)
This Addendum II (this "Addendum"), effective as of December 20, 1999,
contains certain additional and supplemental terms and provisions to that
certain Sprint PCS Management Agreement entered into as of February 9, 1999, by
the same parties as this Addendum, which Management Agreement was further
amended by that certain Addendum I entered into as of February 9, 1999 (the
Management Agreement, as amended by Addendum I, being the "Management
Agreement"). The terms and provisions of this Addendum control, supersede and
amend any conflicting terms and provisions contained in the Management
Agreement. Except for express modifications made in this Addendum, the
Management Agreement continues in full force and effect.
Capitalized terms used and not otherwise defined in this Addendum have the
meanings ascribed to them in the Management Agreement. Section and Exhibit
references are to Sections of, and Exhibits to, the Management Agreement, unless
otherwise noted.
<PAGE>
The Management Agreement is modified as follows:
1. Subscriber Definition. The last sentence in the second paragraph of
Section 3 of Addendum I is deleted in its entirety and replaced by the
following language:
For purposes of this paragraph, "Subscriber" means any subscriber to
Sprint PCS service who satisfies all of the following tests: (i) such
subscriber has a NPA-NXX within the Manager's Service Area; (ii) such
subscriber is "active" (as defined below) in the Sprint PCS P2K
billing system; (iii) such subscriber is properly in the "current",
"1-30 days past due" or "31-60 days past due" category in the Sprint
PCS accounts receivable management system; (iv) such subscriber's use
is not on a demonstration or test basis; (v) such subscriber's use is
not pursuant to a third-party retailer plan that provides for less
than $15 per month in fixed monthly charges or fails to charge for
usage in excess of included plan minutes and (vi) such subscriber's
use is not pursuant to or under a Sprint PCS employee pricing plan
(other than the Sprint Employee Advantage Plans). For purposes of
this paragraph "active" means not disconnected or canceled.
2. Commencement of Management; Reconciliation of the Subscriber Closing
Payment.
(a) The hiring of Manager under the Management Agreement will become
effective as of December 20, 1999 (the "Commencement Date"). On the
Commencement Date, (i) Sprint PCS shall start providing the services
to be provided by it pursuant to the Interim Services Agreement
attached hereto as Exhibit A to assist Manager in the performance of
---------
its duties under the Management Agreement and (ii) Sprint PCS and
Manager shall consummate the transactions contemplated by the Asset
Purchase Agreement, as amended by the first amendment thereto, dated
the Commencement Date, and attached hereto as Exhibit B. As of
---------
January 1, 2000, Sprint PCS's obligations to pay Collected Revenue to
Manager shall commence.
(b) On or before December 20, 1999, Sprint PCS shall provide Manager with
the actual total number of Subscribers as of the close of business on
November 30, 1999 (the "November 30 Subscribers") Manager shall pay to
Sprint PCS on January 5, 2000 (the "Phase II Closing Date") (1) the
product of {***} multiplied by the actual total number of November 30
Subscribers as payment for the November 30 Subscribers, plus (2)
{***} and {***} per gross subscriber sale plus the handset promotional
expenses which are national in scope incurred for acquiring customers
from December 1, 1999 through December 3, 1999 (the "December
Subscribers") as payment for the December Subscribers (the "Subscriber
Purchase Price"). Sprint PCS will share with Manager the analysis used
and such other information as shall be reasonably sufficient to
determine the actual total number of November 30 Subscribers; provided
this provision will not require Sprint PCS to submit to an audit of
its books and records.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
(c) Sprint PCS shall pay to Manager on March 31, 2000, an amount equal to
the product of (i) the number of Subscribers whose accounts were 41 or
more days past due as of December 31, 1999, multiplied by (ii) {***}.
(d) Sprint PCS shall pay to Manager on March 31, 2000 an amount equal to
the product of (i) the number of Subscribers whose accounts were
suspended as of December 31, 1999 and who failed to bring their
accounts current on or before March 1, 2000 multiplied by (ii) {***}.
(e) If Manager converts prepaid Subscribers to Subscribers with account
spending limits or any other post-pay plan on or before March 31,
2000, Sprint PCS agrees to reimburse, or not to impose, any activation
charges with respect to such conversions. No other charges will be
charged by Sprint PCS in connection with such conversions.
3. Lease of Tower Sites. On or before March 31, 2000, Manager or a wholly-
owned subsidiary of Manager, will enter into a master lease agreement with
Sprint Spectrum L.P. and Sprint Spectrum Equipment Company, L.P., on the
financial terms, and otherwise substantially in the form attached hereto as
Exhibit C.
---------
4. Traveling Revenue Reconciliation. During the period from January 1, 2000
through December 31, 2002, Manager will not be required to pay to, or
otherwise owe to, Sprint PCS, during any calendar month during such three-
year period, the amount by which (i) the traveling revenues generated by
customers with an NPA-NXX within the Manager's Service Area using the
Sprint-PCS owned network exceed (ii) the traveling revenues generated by
customers with an NPA-NXX within any of the Sprint PCS-owned Service Area
Network using the Manager's Service Area Network.
5. Change to Service Fee Structure. Sprint PCS agrees to decrease the fees
charged to Manager under the Sprint PCS Services Agreement dated as of
February 9, 1999 (the "Services Agreement") for the following services:
(i) customer care;
(ii) activations;
(iii) billing;
(iv) NOCC;
(v) voicemail; and
(vi) HLR.
Fees will be charged to IWO for actual services purchased under the
Services Agreement in the amounts set forth on the Amended Schedule 2.1.1
to the Services Agreement (which amended schedule is attached hereto as
Exhibit D), less a price decrease from 1999 service prices for the services
---------
listed above (substantially in the form and manner that such services are
provided as of the date of this Addendum II) as follows:
(a) {***} for services provided in the period between
January 1, 2000, and December 31, 2000;
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
(b) {***} for services provided in the period between
January 1, 2000, and December 31, 2001; and
(c) {***} for services provided in the period between
January 1, 2002, and December 31, 2002;
provided, however, that at no time during the period from January 1, 2000
-------- -------
through December 31, 2002, will the price on the services described above
offered to IWO be less favorable than the price offered to any Other
Manager. Effective January 1, 2003 and thereafter for the term of this
Agreement and any extensions thereof, IWO will be charged pursuant to the
fee structure implemented by Sprint PCS for Other Managers.
6. Handsets and Accessories. At the close of business on January 31, 2000,
Sprint PCS shall perform a physical count of accessory inventory located in
the Sprint PCS retail stores within the Manager's Service Area. On
February 1, 2000, Manager will pay Sprint PCS the wholesale price for those
accessories at the same rate that is charged to the Other Managers. At the
close of business on December 31, 1999, Sprint PCS shall perform a physical
count of handset inventory located in the Sprint PCS retail stores within
the Manager's Service Area. On January 31, 2000, Sprint PCS shall also
perform a physical count of handset inventory located in the Sprint PCS
retail stores within the Manager's Service Area (the handset inventory at
December 31, 1999 is referred to herein as the "December Inventory;" the
handset inventory at January 31, 2000 is referred to herein as the "January
Inventory"). Sprint PCS shall provide Manager with the December Inventory
and January Inventory on the date such inventories are taken. On February
1, 2000, Manager shall pay to Sprint PCS the actual retail price for the
number of handsets sold during January 2000. The number of handsets sold
during January 2000 will be equal to the difference of (a) the sum of (i)
the December Inventory plus (ii) the number of handsets added to inventory
during January 2000, minus (b) the January Inventory.
7. Exhibits. Exhibits 1.7 and 2.1 attached hereto are hereby substituted for
--------------------
and replace Exhibits 1.7 and 2.1 in the Management Agreement.
8. Waiver. Each party hereto waives any default that may exist or may have
existed on or prior to the Commencement Date under the Management Agreement
and any agreement referenced therein or contemplated thereby; provided,
however, that such waivers do not limit or preclude either party's right to
declare any default that arises after the Commencement Date.
9. Consent to the Change of Control. Sprint PCS hereby acknowledges and
consents to the Change of Control of Manager as referred to in the letter,
dated October 6, 1999 from Investcorp International Inc. to Manager,
previously provided to Sprint PCS. As contemplated by such letter, Manager
will become a wholly-owned subsidiary of IWO Holdings, Inc., a newly-formed
holding company incorporated under the laws of the State of Delaware and
formed for the purpose of obtaining financing for Manager.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
10. Local Calling Areas. Sprint PCS shall reconfigure its billing system to
accommodate Manager created and approved local calling areas as set forth
on Exhibit E attached hereto, by not later than April 1, 2000.
---------
11. Third Party Distribution Contracts. {***} Sprint PCS shall give
Manager prompt written notice of any material change in the terms of such
agreements.
12. Event of Termination. The parties agree that the failure of a party to
perform its obligations at any of the phases of the Closing under the Asset
Purchase Agreement (in a timely manner as described in the Asset Purchase
Agreement) shall constitute an Event of Termination under Section 11.3.3
the Management Agreement, provided however that the cure period shall not
exceed 30 days.
13. Long-Distance Pricing. (a) The first sentence of Section 3.4 is deleted in
its entirety and replaced by the following language:
Manager must purchase long-distance telephony services from Sprint through
Sprint PCS both (i) to provide long-distance telephony service to users of
the Sprint PCS Network and (ii) to connect the Service Area Network with
the national platforms used by Sprint PCS to provide services to Manager
under the agreement and/or the Services Agreement. Sprint will bill Sprint
PCS for such services rendered to Sprint PCS, Manager and all Other
Managers, and in turn, Sprint PCS will bill Manager for the services used
by Manager. Manager will be charged the same rate for such long-distance
service as Sprint PCS is charged by Sprint (excluding interservice area
long-distance travel rates) plus an additional administrative fee to cover
Sprint PCS' processing costs.
(b) The following sentence is added as a second paragraph in Section 3.4:
"Manager may not resell the long-distance telephony services acquired
from Sprint under this Section 3.4."
14. Right of Last Offer. Section 3.7 is modified by adding the following
language: "(other than backhaul services relating to national platform and
IT application connections, which Manager must purchase from Sprint PCS)"
both between (i) "Service Area Network" and "if Manager decides to use" in
the first sentence of the first paragraph and (ii) "for these services" and
"and the agreement was not made" in the first sentence of the second
paragraph.
15. Use of Loan Proceeds. Sprint PCS is entering into that certain Consent and
Agreement effective as of December 17, 1999, between Sprint Spectrum L.P.,
Sprint Communications Company, L.P., WirelessCo, L.P. and The Chase
Manhattan Bank, as administrative agent (together with any successors
thereof in accordance with that certain Credit Agreement effective as of
December 17, 1999 among Manager, The Chase Manhattan Bank as the
"Administrative Agent", and the lenders who are a party to such
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
Credit Agreement) (which Consent and Agreement, as amended and modified
from time to time, is referred to as the "Consent and Agreement"), to
enable Manager to obtain loans from the Lenders (as defined in the Consent
and Agreement, the "Lenders"). Manager agrees that notwithstanding the
permitted uses of the proceeds from the loans made to Manager to which the
Consent and Agreement relates or from any other loan or extension of credit
to which the Consent and Agreement relates, Manager will not use the
proceeds from any such loan or extension of credit for any purpose other
than to construct and operate the wireless service within the Service Area
(as may be amended from time to time) consistent with the Management
Agreement.
16. Notices. Manager agrees to promptly give Sprint PCS a copy of any notice
of default Manager receives from any Agent or any Lender, and a copy of any
notice of default Manager gives to any Agent or any Lender in response to
such notice of default. Sprint PCS agrees to promptly give Manager a copy
of any written notice Sprint PCS receives from the Administrative Agent or
and Lender and a copy of any written notice that Sprint PCS gives to the
Administrative Agent or any Lender.
17. No Default Under Credit Agreement. Manager warrants and represents that as
of the date hereof, no Default or Event of Default under the Credit
Agreement or and documents or instruments related thereto has occurred.
18. Transfer of Sprint PCS Network. In the first sentence of Section 17.15.5
of the Management Agreement, the phrase "the Sprint PCS Network or any of
the Licenses" is changed to be and read "the Sprint PCS Network and any of
the Licenses".
19. No Collective Bargaining Agreements. Sprint PCS represents and warrants to
Manager that no employee of Sprint PCS in the Service Area is subject to or
covered by a collective bargaining agreement.
20. Delivery of Financing Documents. Manager will deliver executed copies of
the Credit Agreement and Project Pacific Bridge Credit Facility Commitment
Letter to Sprint PCS dated the Commencement Date.
<PAGE>
IN WITNESS WHEREOF, the parties to the Management Agreement have caused
this Addendum to be executed effective as of the 20th day of December, 1999.
INDEPENDENT WIRELESS ONE CORPORATION
By: /s/ Solon L. Kandel
---------------------------------------
Name: Solon L. Kandel
Title: President & CEO
SPRINT SPECTRUM L.P.
By: /s/ Bernard A. Bianchino
---------------------------------------
Bernard A. Bianchino
Chief Business Development Officer -
Sprint PCS
SPRINT COMMUNICATIONS COMPANY L.P.
By: /s/ Don A. Jensen
---------------------------------------
Don A. Jensen
Vice President - Law
WIRELESSCO, L.P.
By: /s/ Bernard A. Bianchino
---------------------------------------
Bernard A. Bianchino
Chief Business Development Officer -
Sprint PCS
<PAGE>
CONFIDENTIAL AND PROPRIETARY
FOR INTERNAL USE ONLY
Submitted October 22, 1999
Independent Wireless One Corporation
LCA Requirements for Independent Wireless One
<TABLE>
<CAPTION>
CSA LCA Required SPCS Changes Required
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Poughkeepsie Area Codes 315 & 518 plus Dutchess, SPCS must delete NYC, Hartford and Buffalo/Rochester LCAs from
Ulster & Sullivan Counties the current Poughkeepsie configuration.
------------------------------------------------------------------------------------------------------------------------------------
Albany Area Codes 315 & 518 plus Dutchess. SPCS must delete the Buffalo/Rochester LCA
------------------------------------------------------------------------------------------------------------------------------------
Syracuse Area Codes 315 & 518, Dutchess, SPCS has this in place today - no change necessary
Ulster & Sullivan Counties, and
Buffalo/Rochester LCA
------------------------------------------------------------------------------------------------------------------------------------
Manchester States of MA, NH, RI, VT, CT & ME. SPCS has this in place today - no change necessary
------------------------------------------------------------------------------------------------------------------------------------
Pittsfield Area Code 413 (Western MA), 518 and SPCS must delete the Boston and Hartford LCA's and add the 518
Connecticut area code.
------------------------------------------------------------------------------------------------------------------------------------
Orange County Area Code 518 plus Dutchess, Ulster & SPCS must delete the NYC and Hartford LCA's and add the 518 area
Sullivan Counties code.
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit C
---------
to Addendum II
--------------
MASTER SUBLEASE AGREEMENT
-------------------------
THIS MASTER SUBLEASE AGREEMENT ("Agreement") is entered into as of the 31st
day of March, 2000, by and between SPRINT SPECTRUM L.P. and its subsidiary,
SPRINT SPECTRUM REALTY COMPANY, L.P., both Delaware limited partnerships
(collectively, "Landlord") and INDEPENDENT WIRELESS ONE LEASED REALTY
CORPORATION, a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant have entered into that certain Sprint PCS
Management Agreement dated February 9, 1999, incorporated herein by
this reference (the "Management Agreement") which provides, among
other things, that Tenant will purchase certain assets from Landlord
used in the operation of the Sprint PCS CDMA network and Tenant shall
then manage such network for Landlord.
B. Pursuant to written agreements (individually, "Ground Lease") Landlord
leases or uses various parcels of real property (individually a
"Site", collectively "Sites") upon which certain telecommunications
towers and related structures owned or used by Landlord are or will be
located.
C. Tenant wishes to sublease certain portions of the Sites which
includes, but is not limited to, radio communication equipment from
Landlord on a non-exclusive basis for the purpose of locating and
operating unmanned radio communications equipment on Landlord's
telecommunications towers and related structures to facilitate
Tenant's performance of its obligations under the Management Agreement
and Landlord wishes to so sublease portions of the Sites to Tenant,
all upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. MASTER SUBLEASE AGREEMENT
----------------------------
This Agreement contains the basic terms and conditions upon which a portion
of each Site is subleased by Landlord to Tenant. When the parties agree on the
particular sublease terms for a Site, the parties will execute a completed Site
Lease Acknowledgment in the form attached as Exhibit "A" ("SLA"). Said form to
be completed by Landlord. Each executed SLA is deemed to be a part of this
Agreement. The terms and conditions of the SLA will govern and control if there
is a discrepancy or inconsistency between the terms and conditions of any SLA
and any portion of this Agreement. If permitted under the terms of the
applicable Ground Lease, Tenant
<PAGE>
may record a memorandum of the SLA in the form attached as Exhibit "B";
provided, however that if Tenant records any such memorandum, Tenant agrees to
execute, deliver and record a notice of termination upon expiration or earlier
termination of this Agreement or applicable SLA.
2. SITE SUBLEASE
----------------
Subject to the terms and conditions contained in this Agreement, the SLA
and the applicable Ground Lease relating to the Site, Landlord subleases and
demises to Tenant and Tenant subleases from Landlord that portion of the Site as
described on the SLA ("Premises"). Tenant's equipment and facilities are mounted
on or in any tower or structure under the control of Landlord on the Site or on
the ground near the structure within the Premises all as described in the SLA
and in accordance with the terms of this Agreement. Landlord shall supply the
completed SLA to Tenant for its signature.
3. USE
-------
Tenant may use the Premises only for the installation, operation and
maintenance of unmanned radio communications equipment ("Communications
Facility") consistent with the terms of the applicable SLA and the Ground Lease.
Tenant will, at Tenant's sole expense, comply with all laws, orders,
ordinances, regulations and directives of applicable federal, state, county, and
municipal authorities or regulatory agencies including, without limitation, the
Federal Communications Commission ("FCC").
Landlord shall be responsible for compliance with any applicable marking
and light requirements of the Federal Aviation Administration (FAA).
Tenant will operate each Communications Facility in a manner that does not
interfere with the operations of any other subtenant of the Site operating
thereon as of the date the applicable SLA is executed.
If requested in writing by Tenant, Landlord agrees to reasonably cooperate
with Tenant, at Tenant's sole expense, in executing such documents or
applications required in order for Tenant to obtain such licenses, permits or
other governmental approvals needed for Tenant's permitted use of the Premises.
4. TERM
--------
The initial term of this Agreement ("Initial Term") is five (5) years
commencing on the date of execution and delivery of this Agreement by both
parties. This Agreement will automatically renew for five (5) consecutive terms
of five (5) years each (each a "Renewal Term").
The initial term of each SLA ("SLA Initial Term") will be specified in the
SLA and will commence on the date of execution of the SLA and will expire
effective with the expiration of
<PAGE>
the initial term of the applicable Ground Lease unless sooner terminated as
provided in this Agreement, if applicable; provided, however, that the term of
each SLA will automatically renew as set forth in, and concurrently with the
renewal period(s) provided by, the applicable Ground Lease (each such Ground
Lease renewal period being a "SLA Renewal Term") unless Tenant provides Landlord
with written notice of Tenant's intention not to renew the SLA not less than the
earlier of (a) nine (9) months prior to the expiration of the SLA Initial Term
or the SLA Renewal Term, as the case may be or (b) sixty (60) days prior to the
date specified in the applicable Ground Lease by which Landlord must notify the
lessor under the Ground Lease ("Landowner") that Landlord elects not to renew
such Ground Lease.
Anything herein to the contrary notwithstanding, no SLA Initial Term or SLA
Renewal Term will extend beyond the earlier of the expiration or termination of
the applicable Ground Lease, this Agreement or the Management Agreement and the
applicable SLA will terminate as to a Site and Premises upon expiration or
sooner termination of the applicable Ground Lease, this Agreement or the
Management Agreement (whichever occurs first).
Nothing shall preclude Tenant from negotiating and entering into directly
with a Landowner, a lease to take effect with respect to a Site after the
expiration or termination of the Ground Lease between Landlord and such
Landowner, subject to any rights of Landlord to remove its telecommunications
tower and related structures. Notwithstanding the above, Landlord and Tenant
agree to enter into goodfaith negotiations for Tenant to purchase, upon
expiration or termination of the Ground Lease, the telecommunications tower from
Landlord at its Fair Market Value.
5. RENT
--------
5.1 Rent. The monthly sublease rent ("Rent") for a Premises is set forth
----
in the applicable SLA and will be payable on the execution date thereof and on
or before the first day of each calendar month thereafter throughout the SLA
Initial Term and each applicable SLA Renewal Term. The Rent will be payable to
Landlord at:
Sprint PCS
Department CH10232
Palantine, Illinois 60055-0232
The Rent will be prorated for any fractional month at the beginning,
expiration or earlier termination of a particular SLA.
5.2 Adjustment. The Rent for the Premises for each SLA Renewal Term will
----------
increase effective on the first day of each SLA Renewal Term in an amount equal
to fifteen percent (15%) of the Rent applicable to the immediately preceding SLA
Initial Term or SLA Term, as the case may be, as set forth in the SLA.
5.3 Interest. Any Rent not paid within ten (10) calendar days of its due
--------
date will bear interest ("Past Due Interest Rate") effective as of the Rent due
date until paid at the rate of interest per annum equal to the interest rate
being quoted on the Rent due date by The Chase Manhattan Bank (or its successor)
as its prime rate plus five percent
<PAGE>
(5.00%) (computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as applicable, compounded monthly).
5.4 Other Amounts. Any sums due to Landlord under this Agreement or any
-------------
SLA which are not specifically defined as "Rents" are deemed additional rent
("Additional Rent") and are subject to the interest charges and late fee
specified in Section 5.3 and any other provisions of this Agreement which
address Rents; provided, however, the provisions of Section 5.2 (Adjustment)
will not apply to Additional Rent.
6. INTERFERENCE
---------------
6.1 Existing Subtenants. Upon execution of the applicable SLA, Landlord
-------------------
represents that no interference to the Communications Facility currently occurs
from existing subtenants.
6.2 Subsequent Subtenants. If the equipment of any other subtenant(s) of a
---------------------
Site who commence operations after execution of the applicable SLA causes
interference with Tenant's use, Landlord must take all reasonable steps
necessary to correct and eliminate the interference within forty-eight (48)
hours of written notice thereof from Tenant to Landlord. Landlord shall require
the subtenant(s) causing the interference to cease any use of its equipment
which causes the interference, except for brief periods of testing. If Landlord
fails to correct and eliminate the interference within thirty (30) days of such
notice, Landlord shall require the subtenant(s) causing the interference to
remove its equipment.
7. ALTERATIONS AND REPLACEMENTS
--------------------------------
7.1 Approved Communications Facility. Tenant has the right at Tenant's
--------------------------------
sole cost and expense to operate, maintain and repair at the Premises only the
Communications Facility specified on the applicable SLA. Prior to commencing any
(a) alteration, (b) replacement or (c) addition, (individually or collectively,
"Alteration") with respect to a Communications Facility, Tenant must obtain
Landlord's prior written approval, which approval will not be unreasonably
withheld, conditioned or delayed. Tenant shall supply the Landlord with:
7.1.1 Tenant's plans for the Alteration and such other relevant
information Landlord may reasonably request including, but not
limited to, working drawings in order to assess Tenant's
proposed Alteration;
7.1.2 the precise location of the proposed Alteration of the
Communications Facility on the Premises; and
7.1.3 a written structural tower analysis report prepared by a
licensed engineer reasonably acceptable to Landlord if the
proposed Alteration is a replacement of the Communications
Facility.
The foregoing notwithstanding, Tenant's replacement of equipment with equipment
(a) of the same wind loading and structural loading, and substantially the same
size, weight and height, and
<PAGE>
(b) operating at the frequency set forth in the applicable SLA, in the course of
repairs or upgrading the Communications Facility, is not an Alteration requiring
Landlord's prior approval.
All of Tenant's Alteration work must be performed:
(a) at Tenant's sole cost and expense;
(b) in a good and workmanlike manner;
(c) in accordance with applicable building uses and the
provisions of Exhibit "C"; and
(d) must not adversely affect the structural integrity or
maintenance or marketability of the Site or any structure on
the Site or Premises.
7.2 Liens. Tenant must keep the Premises and Site free from any liens
-----
arising from any work performed, materials furnished, or obligations incurred by
or at the request of Tenant, Tenant's agents, employees or contractors.
If any lien is filed against the Premises or Site as a result of the acts
or omissions of Tenant, or Tenant's employees, agents or contractors, Tenant
must discharge the lien or bond the lien off in a commercially reasonable manner
on or before the earlier of (a) thirty (30) days after Tenant receives written
notice from any party that the lien has been filed or (b) the last day for doing
so pursuant to the applicable Ground Lease.
If Tenant fails to discharge or bond any lien within such period, then, in
addition to any other right or remedy of Landlord, Landlord may, at Landlord's
election, discharge the lien by either paying the amount claimed to be due or
obtaining the discharge by deposit with a court or a title company or by
bonding. Tenant must pay, within thirty (30) days of receipt of Landlord's
written demand, any amount paid by Landlord for the discharge or satisfaction of
any lien, and all reasonable attorneys' fees and other legal expenses of
Landlord incurred in defending any such action or in obtaining the discharge of
such lien, together with all necessary disbursements in connection therewith.
7.3 Possession. Taking possession of the Premises by Tenant is conclusive
----------
evidence that Tenant:
7.3.1 accepts the Premises as suitable for the purposes for which
they are subleased;
7.3.2 accepts the Premises and every part and appurtenance thereof
AS IS, with all faults; and
7.3.3 waives any and all claims against Landlord in respect of
defects in the Site and/or Premises, any structure located
thereon and its appurtenances, their habitability or
suitability for any permitted purposes.
Tenant is deemed to take possession as of the date the applicable SLA is
signed.
<PAGE>
8. UTILITIES
-------------
Tenant will be solely responsible for, and shall promptly pay, all charges
for electricity, telephone or any other utility used by Tenant at the Premises.
If possible, Tenant will arrange for the installation of a separate meter and
main breaker, subject to Landlord's right to pre-approve in writing the exact
location of proposed utility routes and the manner of installation. If utilities
cannot be separately metered, within fifteen (15) days of Tenant's receipt of a
billing statement setting forth Tenant's responsibilities for Tenant's use of
the aforementioned utilities, Tenant will pay Landlord, as Additional Rent, the
costs of Tenant's utility usage at the Premises.
9. ACCESS
----------
Subject to the terms of the Ground Lease, the following provisions will
govern access to the Premises, unless otherwise modified in an SLA:
9.1 Construction; Non-Emergency. Access for construction, routine
---------------------------
maintenance and repair, Alterations and other non-emergency visits, except as
otherwise prohibited by law or the Ground Lease, is during normal business hours
(defined as Monday through Saturday, 7 a.m. to 7 p.m.).
9.2 Emergency. In the event of emergency, Tenant is entitled to access the
---------
Premises twenty-four (24) hours per day, seven (7) days per week.
9.3 Type of Access. Access to the Premises may be by foot or motor
--------------
vehicle, including trucks and equipment.
Tenant acknowledges that the foregoing access rights are subject to any
limitations or restrictions on access imposed upon Landlord (and therefore upon
Tenant) by the underlying Ground Lease or other document governing access
relating to a particular Site. Tenant agrees to abide by such limitations or
restrictions as provided in the Ground Lease or other document governing access,
copies of which will be provided to Tenant by Landlord together with the SLA.
Only authorized employees, agents and contractors of Tenant may access the Sites
and the Premises.
10. TAXES AND ASSESSMENTS
--------------------------
Tenant must pay as Additional Rent any increases in taxes or other
assessments including, but not limited to, real estate taxes, and any new taxes
or assessments directly attributable to Tenant's use of the Premises. If all of
such increases are not directly allocated to the Premises, the amount of the
Additional Rent therefor will be determined based upon Tenant's share of the
total tax or assessment, or increase thereto, based upon a percentage wherein
the numerator is Tenant's square footage leased area for the Site and the
denominator is the total square footage of the Site. Landlord will provide
reasonable documentation of the taxes and assessments directly attributable to
Tenant's use of the Premises.
Tenant will be solely responsible for and promptly pay prior to delinquency
all taxes or other assessments including, but not limited to, personal property
taxes and any new taxes or assessments directly attributable to Tenant's
Communication Facility.
<PAGE>
11. INSURANCE
--------------
11.1 Required Insurance of Tenant. Tenant must, during the Initial Term
----------------------------
and all Renewal Terms of this Agreement and the SLA Initial Term and SLA Renewal
Terms and at Tenant's sole expense, obtain and keep in force, not less than the
following insurance:
11.1.1 Property insurance, including coverage for fire, extended
coverage, vandalism and malicious mischief, upon each
Communications Facility in an amount not less than ninety
percent (90%) of the full replacement cost of the
Communications Facility;
11.1.2 Commercial General Liability written on an occurrence basis
insuring operations hazard, independent contractor hazard,
contractual liability, and products and completed operations
liability, in limits not less than $5,000,000 combined
single limit for each occurrence for bodily injury, personal
injury and property damage liability, naming Landlord as an
additional insured;
11.1.3 Statutory Workers' Compensation and Employer's Liability
insurance; and
11.1.4 Automobile Liability insurance in an amount not less than
$1,000,000 combined single limit for bodily injury and/or
property damage. Insurance must include coverage for all
owned, hired and non-owned automobiles.
11.2 Required Insurance of Landlord. Landlord must, during the term of
------------------------------
this Agreement and the term of any SLA and at Landlord's sole expense, obtain
and keep in force, the following insurance:
11.2.1 Property insurance, including coverage for fire, extended
coverage, vandalism and malicious mischief on the Site, in
an amount not less than 90% of the full replacement cost of
Landlord's owned towers or other owned structures on the
Site (excluding, however, the Communications Facility);
11.2.2 Commercial General Liability insuring operations hazard,
independent contractor hazard, contractual liability and
products and completed operations liability, in limits not
less than $5,000,000 combined single limit for each
occurrence for bodily injury, personal injury and property
damage liability; and
11.2.3 Statutory Worker's Compensation and Employer's Liability
insurance.
11.3 Policies of Insurance. All required insurance policies must be taken
---------------------
out with reputable national insurers rated AX(10) or better in the most current
edition of Best's Insurance Reports that are licensed to conduct business in the
jurisdiction where the Premises and Sites are located. Each party agrees that
certificates of insurance will be delivered to the other party as soon as
practicable after the placing of the required
<PAGE>
insurance, but not later than fifteen (15) days following execution of this
Agreement. Each party shall name the other as an additional insured on its
Commercial General Liability Insurance. All policies must contain an undertaking
by the insurers to notify the other party in writing not less than thirty (30)
days before any material change, reduction in coverage, cancellation, or
termination of the insurance.
11.4 No Limitation on Liability. The provision of insurance required in
--------------------------
this Agreement will not be construed to limit or otherwise affect the liability
of any party to the other party.
11.5 Compliance. Tenant will not do or permit to be done on or about the
----------
Premises or Site, nor bring or keep or permit to be brought to the Premises or
Site, anything that:
11.5.1 is prohibited by any insurance policy carried by Landlord
covering the Site, any improvements thereon, or the
Premises; or
11.5.2 will increase the existing premiums for any such policy
beyond that contemplated for the existence of the
Communications Facility.
Landlord acknowledges and agrees that the existence of the Communications
Facility upon the Premises in accordance with the terms and conditions of this
Agreement will be considered within the underwriting requirements of any of
Landlord's insurers and such premiums contemplate the existence of the
Communications Facility.
11.6 Release. Landlord and Tenant release each other, and their
-------
respective principals, employees, representatives and agents, from any claims
for damage to any person or to the Premises, the Site and any improvements
thereon, that are caused by, or result from, risks insured against under any
insurance policies carried by the parties and in force at the time of any such
damage and any risks which would be covered by the insurance which such party is
required to carry hereunder. Each party will cause each insurance policy
obtained by it to provide that the insurance company waives all right of
recovery by way of subrogation against the other party in connection with any
damage or less covered by any policy. Each party also waives all right of
recovery by way of subrogation against the other party in connection with any
damage or loss covered by any policy.
12. INDEMNIFICATION
--------------------
12.1 Indemnification by Tenant. Tenant must indemnify, defend and save
-------------------------
Landlord, its principals, directors, employees, agents and contractors harmless
from and against any and all claims, actions, damages, liability and expense in
connection with the loss of life, personal injury, and/or damage to property
arising from or out of.
12.1.1 any occurrence in, upon or at the Premises or the Site
caused by the act or omission of Tenant or Tenant's agents,
employees, customers, invitees, contractors, vendors,
materialmen or suppliers, except to the extent caused by the
negligence or willful misconduct of Landlord, Landlord's
agents,
<PAGE>
employees, customers, invitees, contractors, vendors,
materialmen or suppliers;
12.1.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Tenant's use of or
presence on the Premises or the Site or the use of or
presence on the Premises or the Site by Tenant's agents,
employees, customers, invitees, contractors, vendors,
materialmen or suppliers; or
12.1.3 real estate brokers claiming by, through or under Tenant for
any commission, fee or payment in connection with this
Agreement or any SLA.
If any litigation is commenced by or against Tenant for any of the above
reasons, then Tenant must defend, protect and hold Landlord, its principals,
directors, employees, agents and contractors harmless and pay all costs,
penalties, charges, damages, expenses, deferred costs and reasonable attorneys'
fees incurred or paid by any or all of them as the result of being made a party
to any such litigation.
12.2 Indemnification by Landlord. Landlord must indemnify, defend and
---------------------------
save Tenant, its principals, directors, employees, agents and contractors
harmless from and against any and all claims, actions, damages, liability
and expense in connection with the loss of life, personal injury, and/or
damage to property arising from or out of:
12.2.1 any occurrence in, upon or at the Premises or the Site
caused by the act or omission of Landlord or Landlord's
agents, employees, customers, invitees, contractors,
vendors, materialmen or suppliers, except to the extent
caused by the negligence or willful misconduct of Tenant,
Tenant's agents, employees, customers, invitees,
contractors, vendors, materialmen or suppliers;
12.2.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Landlord's use of or
presence on the Premises or the Site or the use of or
presence on the Premises or the Site by Landlord's agents,
employees, customers, invitees, contractors, vendors,
materialmen or suppliers; or
12.2.3 real estate brokers claiming by, through or under Landlord
for any commission, fee or payment in connection with this
Agreement or any SLA.
If any litigation is commenced by or against Landlord for any of the above
reasons, then Landlord must defend, protect and hold Tenant, its principals,
directors, employees, agents and contractors harmless and pay all costs,
penalties, charges, damages, expenses, deferred costs and reasonable attorneys'
fees incurred or paid by any or all of them as the result of being made a party
to any such litigation.
<PAGE>
12.3 Survival. The provisions of this Section 12 will survive the
--------
expiration or earlier termination of this Agreement or any SLA.
13. ASSIGNMENT
---------------
13.1 By Tenant. Tenant will not assign or otherwise transfer this
---------
Agreement or any SLA or sublet any Premises to any other party without
Landlord's prior written consent, which consent will not be unreasonably
withheld.
13.2 By Landlord. Landlord may further sublease or license any Site
-----------
without prior notice to or consent of Tenant, but may not assign or otherwise
transfer this Agreement or any SLA without Tenant's prior written consent, which
consent will not be unreasonably withheld.
14. REPAIRS
-----------
14.1 Tenant's Obligation. Tenant must, at all times during the term of any
-------------------
particular SLA, at Tenant's sole cost and expense, keep and maintain the
Communications Facility in a structurally and operationally safe and sound
condition and in good repair.
If Tenant does not make such repairs within ten (10) days after receipt of
written notice from Landlord requesting such repairs and such repairs are
required, then Landlord may, at Landlord's option, make the repairs. Tenant must
pay Landlord, within thirty (30) days of Tenant's receipt of Landlord's written
demand, Landlord's reasonable, actual costs in making the repairs, plus
Landlord's actual overhead.
If Tenant commences repairs within ten (10) days after receipt of any
notice from Landlord requesting such repairs and thereafter continuously and
diligently pursues and completes such repair, then the ten (10) day cure period
will extend for up to an additional ten (10) days to permit Tenant to complete
such repairs.
If emergency repairs are needed to protect persons, or property, or to
allow the use of the Premises or Site, Tenant must immediately correct the
safety or use problem, even if a full repair cannot be made at that time or
Landlord may make such repairs at Tenant's expense.
14.2 Landlord's Obligation. Landlord must, at all times during the term of
---------------------
any SLA and at Landlord's sole cost and expense, keep and maintain the Site and
any improvements located thereon, (other than the Communications Facility) in a
structurally sound and safe condition and in good repair.
If Tenant is unable to use the Communications Facility because of repairs
required on the Site which are the obligation of Landlord, then Tenant may, if
permitted by the Ground Lease, at Tenant's expense, including the cost of any
required permits, immediately erect on the Premises or an unused portion of the
Site a temporary Communications Facility, including any supporting structure,
while Landlord makes repairs to the Site. If Landlord fails to commence any such
repairs required on the Site which are the obligation of Landlord within thirty
(30) days after receipt of notice from Tenant and thereafter fails to diligently
pursue completion of such repairs,
<PAGE>
then Tenant may, upon ten (10) days prior written notice to Landlord, make such
repairs or cause same to be made and may deduct the reasonable and actual costs
thereof from the Rent. Upon request, Tenant will provide Landlord with written
evidence of the costs of such repairs.
15. CASUALTY OR CONDEMNATION
-----------------------------
15.1 Casualty. If there is a casualty to any structure owned by Landlord
--------
upon which a Communications Facility is located, Landlord must within ninety
(90) days repair or restore the structure. Tenant may, if permitted by the
Ground Lease, at Tenant's expense, including obtaining requisite approvals and
permits, immediately erect on the Premises or an unused portion of the Site a
temporary Communications Facility, including any supporting structure, while
Landlord makes repairs to the Premises. Upon completion of such repair or
restoration, Tenant is entitled to reinstall the Communications Facility.
15.2 Condemnation. If there is a condemnation of a Site including, without
------------
limitation, a transfer of a Site by consensual deed in lieu of condemnation,
then the SLA for the condemned Site will terminate upon transfer of title to the
condemning authority, without further liability of either party under this
Agreement with respect to such Site except for obligations which arise hereunder
or under the SLA prior to date title transfers to the condemning authority.
Landlord shall notify Tenant of the possible taking as soon as Landlord learns
of same. Tenant is entitled to pursue a separate condemnation award for the
Communications Facility from the condemning authority as may be permitted by
applicable law.
16. SURRENDER OF PREMISES; HOLDING OVER
----------------------------------------
Upon the expiration or other termination of a SLA for any reason
whatsoever, Tenant must peacefully vacate the applicable Premises in as good
order and condition as the same were at the execution of the applicable SLA,
except for reasonable use, wear and tear and casualty and condemnation.
If Tenant continues to hold any Premises after the termination of the
applicable SLA, whether the termination occurs by lapse of time or otherwise,
such holding over will, unless otherwise agreed to by Landlord in writing,
constitute and be construed as a month-to-month tenancy with monthly Rent
payable in an amount equal to 150% of the Rent in effect for the month
immediately preceding the commencement of such holdover, month-to-month tenancy
and such month-to-month tenancy shall be subject in all other respects to all of
the other terms set forth in this Agreement and applicable SLA.
17. DEFAULT AND REMEDIES
-------------------------
17.1 Tenant's Default. The occurrence of any one or more of the following
----------------
events constitutes an "event of default" by Tenant under the applicable SLA:
17.1.1 if Tenant fails to pay any Rent, additional Rent or other
sums payable by Tenant for the applicable Premises within
ten (10) calendar days of the
<PAGE>
due date and Tenant fails to cure same within ten (10)
business days after receipt of written notice of same;
17.1.2 if Tenant fails to perform or observe any other term of this
Agreement and/or the applicable SLA, including terms and
conditions applicable thereto contained in this Agreement,
and such failure continues beyond receipt of written notice
of such default and beyond applicable cure period specified
elsewhere herein;
17.1.3 if Tenant fails to perform or observe any other term of this
Agreement and/or the applicable SLA, including terms and
conditions applicable thereto contained in this Agreement,
and there is no cure period specified elsewhere herein with
respect to such failure and such failure continues for more
than thirty (30) days after receipt of written notice from
Landlord; except such thirty (30) day cure period will be
extended as reasonably necessary to permit Tenant to
complete cure but in no event longer than a total of sixty
(60) days so long as Tenant commences cure within such
thirty (30) day cure period and thereafter continuously and
diligently pursues and completes such cure;
17.1.4 if Tenant's Communications Facility is found to be
interfering as described in Section 6.1 and Tenant has
failed to cure same pursuant to Section 6.1; or
17.1.5 breach of any representation, warranty or agreement of
Tenant set forth in this Agreement or an SLA.
17.2 Landlord's Remedies. If an event of default occurs, Landlord shall
-------------------
have the rights and remedies of Sprint PCS set forth in the Management Agreement
including, without limitation, the right of offset in the event of monetary
payment default by Tenant. The foregoing remedies of Landlord are in addition to
and not exclusive of any other rights and remedies available at law or in
equity. Landlord may elect any one or more remedies with respect to any
particular SLA.
17.3 Landlord's Default. If Landlord is in:
------------------
17.3.1 breach of any representation, warranty or agreement set
forth in this Agreement; or
17.3.2 if Landlord fails to perform or observe any other term of
the applicable SLA, including terms and conditions
applicable thereto contained in this Agreement, and such
failure continues for more than thirty (30) days after
receipt of written notice from Tenant; except such thirty
(30) day cure period will be extended as reasonably
necessary to permit Landlord to complete cure so long as
Landlord commences cure within such thirty (30) day cure
period and thereafter continuously and diligently pursues
and completes such cure;
<PAGE>
17.4 Tenant's Remedies. In the event of a default by Landlord, Tenant
shall have the rights and remedies of Buyer set forth in the Management
Agreement.
18. COVENANT OF QUIET ENJOYMENT
--------------------------------
Landlord covenants that, subject to the terms of each applicable Ground
Lease, Tenant, upon the payment of Rent and performance of all the terms,
covenants and conditions under this Agreement and each applicable SLA, will
have, hold and enjoy each Premises subleased under a SLA during the SLA Initial
Term and applicable SLA Renewal Term. Landlord will take no action not expressly
permitted under the terms of this Agreement that will interfere with Tenant's
intended use of the Premises nor will Landlord fail to take any action or
perform any obligation necessary to fulfill Landlord's covenant of quiet
enjoyment in favor of Tenant.
19. COVENANTS AND WARRANTIES
-----------------------------
19.1 Landlord. Landlord represents, with respect to each particular SLA
--------
that:
19.1.1 Landlord has a good and marketable leasehold interest or has
a valid license or easement in the land on which the Site
and Premises are located pursuant to a Ground Lease and has
rights of access thereto;
19.1.2 Landlord will not knowingly permit or suffer after the
execution of each applicable SLA, the installation and
existence of any other improvement (including, without
limitation, transmission or reception devices) upon the
structure or land of which any Site or Premises is a portion
if such improvement results in the degradation of
transmission or reception by the Communications Facility;
and
19.1.3 The Premises are not, to the best of Landlord's knowledge,
contaminated by any Environmental Hazards (as defined in
Section 20).
19.2 Mutual. Each party represents and warrants to the other party that:
------
19.2.1 it has full right, power and authority to make this
Agreement and to enter into the SLAs;
19.2.2 the making of this Agreement and the performance thereof
will not violate any laws, ordinance, restrictive covenants,
or other agreements under which such party is bound;
19.2.3 such party is a duly organized and existing corporation or
partnership;
19.2.4 the party is qualified to conduct business in any state in
which the Premises and Sites are located; and
19.2.5 all persons signing on behalf of such party were authorized
to do so by appropriate corporate or partnership action.
<PAGE>
19.3 No Brokers. Tenant and Landlord represent to each other that neither
----------
has had any dealings with any real estate brokers or agents in connection with
the negotiation of this Agreement or any SLA.
20. ENVIRONMENTAL MATTERS
-------------------------
Landlord represents that to the best of Landlord's knowledge without having
conducted any investigation there are no Environmental Hazards on any Site.
Nothing in this Agreement or in any SLA will be construed or interpreted to
require that Tenant remediate any Environmental Hazards located at any Site or
Premises unless Tenant or Tenant's officers, employees, agents, or contractors
placed the Environmental Hazards on the Site.
Tenant will not bring to, transport across or dispose of any Environmental
Hazards on any particular Premises or Site without Landlord's prior written
approval, except Tenant may, if permitted under the terms of the Ground Lease,
keep on the Premises substances used in back up power units (such as batteries
and diesel generators) commonly used in the wireless telecommunications
industry. Tenant's use of any approved substances constituting Environmental
Hazards must comply with all applicable laws, ordinances, and regulations
governing such use.
The term "Environmental Hazards" means hazardous substances, hazardous
wastes, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or other
fuels (including crude oil or any fraction or derivative thereof) and
underground storage tanks. The term "hazardous substances" are as defined in the
Comprehensive Environmental Response, Compensation and Liability Act, and any
regulations promulgated pursuant thereto. The term "pollutants" are as defined
in the Clean Water Act, and any regulations promulgated pursuant thereto. This
Section 20 will survive termination of this Agreement and any particular SLA.
Tenant agrees to defend, indemnify and hold Landlord harmless from and
against any and all claims, causes of action, demands and liability, including,
but not limited to, damages, costs, expenses, assessments, penalties, fines,
losses, judgments and reasonable attorneys' fees that Landlord may suffer due to
any Environmental Hazards at the Premises generated by Tenant's activities.
Landlord agrees to defend, indemnify and hold Tenant harmless from and
against any and all claims, causes of action, demands and liability, including,
but not limited to, damages, costs, expenses, assessments, penalties, fines,
losses, judgments and reasonable attorneys' fees that Tenant may suffer due to
any Environmental Hazards at the Premises not generated by Tenant's activities.
21. SUBORDINATION
-----------------
21.1 Agreement. Tenant agrees that this Agreement and each SLA is subject
---------
and subordinate at all times to the lien of all mortgages, security instruments,
and deeds of trust securing any amount or amounts whatsoever which may now exist
or hereafter be placed on or against the Premises or Site or on or against
Landlord's interest or estate therein, and any underlying Ground Lease on a
particular Site, all without the necessity of
<PAGE>
having further instruments executed by Tenant to effect such subordination,
except with respect to any such liens or leases which arise following execution
of this Agreement.
Landlord agrees that Tenant may pledge or grant a security interest in the
Communication Facility as collateral for indebtedness and that Tenant will
notify Landlord of same. Upon default by Tenant, Landlord will give notice to
the creditor holding the indebtedness so that creditor may take reasonable steps
to cure the default to protect its interests; provided Landlord has been
provided advance written notice of creditor's notice address.
21.2 SLA. Each SLA is subject to any restrictions or other terms or
---
conditions contained in the underlying Ground Lease. Tenant agrees to commit no
act or omission which would constitute a default under any such Ground Lease.
If a particular restriction contained in a Ground Lease and not set forth
on the applicable SLA prevents Tenant from the installation, operation or
maintenance of or access to the Communications Facility, Tenant is entitled to
terminate the applicable SLA.
Upon the expiration or termination of any Ground Lease, with respect to a
particular Site, the SLA relating to such Site and Premises automatically
terminates without further liability of either party except as may have arisen
prior to such termination. Tenant acknowledges and agrees that some of the
Ground Leases may grant to the property owner the right to terminate such Ground
Lease on the Site, and that in the event of such termination, the SLA with
respect to such Site will terminate concurrently therewith.
Landlord agrees that Landlord will not breach the terms or conditions of
any Ground Lease in a manner that adversely affects Tenant's use of the
Premises.
Landlord will notify Tenant as soon as reasonably possible after Landlord
learns of the termination of any Ground Lease.
22. AUTHORIZED LANDLORDS
------------------------
This Agreement is entered into by Landlord on its own behalf and at the
written request of and for the benefit of:
22.1 any entity in which Landlord directly or indirectly holds an
equity or similar interest;
22.2 any entity which directly or indirectly holds an equity or
similar interest in Landlord; and
22.3 any entity directly or indirectly under common control with
Landlord.
Landlord and each of the entities above is referred to herein as an
"Authorized Landlord". No obligation is incurred or liability accepted by any
Authorized Landlord until that Authorized Landlord enters into a SLA. Only the
Authorized Landlord executing a SLA is responsible for the obligations and
liabilities related thereto arising under that SLA and this Agreement. All
communications and invoices relating to a SLA must be directed to the Authorized
Landlord signing that SLA. A default by any Authorized Landlord
<PAGE>
will not constitute or serve as a basis for a default by any other Authorized
Landlord.
23. GENERAL PROVISIONS
-----------------------
23.1 Entire Agreement; Amendments. The provisions of this Agreement, the
----------------------------
Management Agreement and each SLA 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. There are
no representations or understandings of any kind not set forth in this
Agreement. Any amendments to this Agreement or any SLA must be in writing and
executed by both parties.
23.2 Severability. The parties intend every provision of this Agreement to
------------
be severable. If any provision of this Agreement or any SLA 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 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 or replace the unenforceable provision with
an enforceable provision that reflects the original intent of the parties.
23.3 Binding Effect. Except as otherwise provided in this Agreement, this
--------------
Agreement and each SLA is binding upon and inures to the benefit of the parties
and their respective and permitted successors, transferees and assignees.
23.4 Headlines. The 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.
23.5 Waiver. The observance of any term of this Agreement may be waived
------
(whether generally or in a particular instance and 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.
23.6 Construction. This Agreement will be construed simply according to
------------
its fair meaning and not strictly for or against either party.
23.7 Notice. Any notice, 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), or
delivered by overnight courier to the address of other parties set forth below:
<PAGE>
Landlord: Sprint Spectrum L.P.
c/o Sprint Sites USA
9401 Indian Creek Parkway
Building 40, Suite 770
Overland Park, Kansas 66210
With a copy to: Sprint Spectrum L.P.
4900 Main Street, 11th Floor
Kansas City, Missouri 64112
Attention: Business Law Group
Tenant: Independent Wireless One Corporation
c/o J. K. Hage
Hage & Hobaica, LLP
610 Charlotte Street
P. 0. Box 1769
Utica, New York 13503-1769
Any such notice is deemed received one (1) business day following deposit
with an overnight courier or five (5) business days following deposit in the
United States mail addressed as required above. Landlord or Tenant may from time
to time designate any other address for this purpose by written notice to the
other party delivered in the manner set forth above.
23.8 Government Law. This Agreement and each SLA is governed by the laws
--------------
of the state where the Site is located.
23.9 No Liens. Each Communications Facility and related property located
--------
upon any Premises by Tenant pursuant to the terms of this Agreement and the
applicable SLAs will at all times be and remain the property of Tenant and will
not be subject to any lien or encumbrance created or suffered by Landlord.
Tenant has the right to make such public filings as it deems necessary or
desirable to evidence Tenant's ownership of the Communications Facility.
Landlord waives all Landlord's or landlord's lien on any property of Tenant
(whether created by statute or otherwise).
23.10 Conflict. Anything herein to the contrary notwithstanding, in the
--------
event of a conflict between the provisions of this Agreement or any SLA and the
provisions of the Management Agreement, the provisions of the Management
Agreement shall control, except with respect to Section 17.12 thereof entitled
Governing Law.
24. FEDERAL COMPLIANCE.
-----------------------
During the term of this Sublease, Tenant agrees as follows:
24.1 Tenant will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Tenant
will take affirmative action to ensure that applicants are employed, and that
employees are treated during employment without regard to their race, color,
religion, sex, or national origin.
<PAGE>
Such action will include, but not be limited to the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Tenant agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided
setting forth the provisions of this nondiscrimination clause.
24.2 Tenant will, in all solicitations or advertisements for employees
placed by or on behalf of Tenant, state that all qualified applicants will
receive considerations for employment without regard to race, color, religion,
sex, or national origin.
24.3 Tenant will send to each labor union or representative of workers
with which Tenant has a collective bargaining agreement or other contract or
understanding, a notice to be provided advising the labor union or workers'
representatives of Tenant's commitments under this Section, and will post copies
of the notice in conspicuous places available to employees and applicants for
employment.
24.4 Tenant will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
24.5 Tenant will furnish all information and reports required by Executive
Order 11246 of September 24, 1965, and by rules, regulations, and orders of the
Secretary of Labor, or pursuant thereto, and will permit access to Tenant's
books, records, and accounts by the administering agency and the Secretary of
Labor for purposes of investigation to ascertain compliance with such rules,
regulations, and orders.
24.6 In the event of Tenant's noncompliance with the nondiscrimination
clauses of this Sublease or with any of the rules, regulations, or orders, this
Sublease may be canceled, terminated, or suspended in whole or in part and
Tenant may be declared ineligible for further Government contracts or federally
assisted contracts in accordance with procedures authorized in Executive Order
11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order 11246 of September 24, 1965, or
by rule, regulation, or order of the Secretary of Labor, or as otherwise
provided by law.
24.7 Tenant will include the portion of the sentence immediately preceding
Section (1) and the provisions of Section (1) through this Section (7) in every
subcontract, sublease or purchase order unless exempted by rules, regulations,
or orders of the Secretary of Labor issued pursuant to section 204 of Executive
Order 11246 of September 24, 1965, so that such provisions will be binding upon
each subcontractor, subtenant or vendor. Tenant will take such action with
respect to any subcontract, sublease or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions
for noncompliance. Provided, however, that in the event Tenant becomes involved
in, or is threatened with, litigation with a subcontractor, subtenant or vendor
as a result of such direction by the administering
<PAGE>
agency Tenant may request the United States to enter into such litigation to
protect the interests of the United States.
24.8 In consideration of this Sublease with Landlord, Tenant agrees to
execute the Certificate of Compliance attached hereto as Exhibit "D" and further
agrees that this certification will be part of this Sublease between Landlord
and Tenant. Tenant will include Exhibit "D" in every subcontract, sublease, or
purchase order, so that such provisions will be binding upon each subcontractor,
subtenant or vendor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INDEPENDENT WIRELESS ONE
LEASED REALTY CORPORATION
ATTEST: By:____________________________
By:___________________________ Name:__________________________
Name:_________________________ Title:_________________________
Title:________________________
SPRINT SPECTRUM L.P. SPRINT SPECTRUM REALTY
COMPANY L.P.
By:___________________________ By:____________________________
Name:_________________________ Name:__________________________
Title:________________________ Title:_________________________
Attached Exhibits
-----------------
"A" - Site Lease Acknowledgment
"B" - Memorandum of Site Lease Acknowledgment (Sublease)
"C" - Site Standards
"D" - Certificate of Compliance with Federal Regulations
<PAGE>
ADDENDUM III
TO
SPRINT PCS MANAGEMENT AGREEMENT
<TABLE>
<S> <C>
Manager: Independent Wireless One Corporation
Service Area:
Albany-Schenectady, NY (BTA No. 7)
Binghamton, NY (BTA No. 43)
Boston, MA (BTA No. 51) - Only Strafford and Rockingham Counties
Burlington, VT (BTA 63)
Elmira-Corning-Hornell, NY (BTA No. 127)
Glens Falls, NY (BTA No. 164)
Ithaca, NY (BTA No. 208)
Keene, NH (BTA No. 227)
Lebanon-Claremont, NH (BTA No. 249)
Lewiston-Auburn, ME (BTA No. 251) - Only Coos County, NH
Manchester-Nashua-Concord, NH (BTA No. 274) - Excluding the
metropolitan area of Nashua, NH
New York, NY (BTA No. 321) - Only Orange and Sullivan Counties
Oneonta, NY (BTA No. 333)
Pittsfield, MA (BTA No. 351)
Plattsburgh, NY (BTA No. 352)
Poughkeepsie-Kingston, NY (BTA No. 361)
Rutland-Bennington, VT (BTA No. 388)
Syracuse, NY (BTA No. 438)
Utica-Rome, NY (BTA No. 453)
Watertown, NY (BTA NO. 463)
</TABLE>
This Addendum III (this "Addendum"), dated as of August 7, 2000, contains
certain additional and supplemental terms and provisions to that certain Sprint
PCS Management Agreement entered into as of February 9, 1999, as amended by that
certain Addendum I to Sprint PCS Management Agreement, dated February 9, 1999,
and that certain Addendum II to Sprint PCS Management Agreement, dated December
17, 1999 (such agreement, as amended to date being the "Management Agreement").
The terms and provisions of this Addendum control, supersede and amend any
conflicting terms and provisions contained in the Management Agreement. Except
for express modifications made in this Addendum, the Management Agreement
continues in full force and effect.
Capitalized terms used and not otherwise defined in this Addendum have the
meanings ascribed to them in the Management Agreement. Section and Exhibit
references in this Addendum are to Sections and Exhibits of the Management
Agreement unless otherwise noted.
1
<PAGE>
1. Marketing Communications Guidelines. The first bulleted standard set
forth in Section II.B. of Exhibit 5.2 to the Management Agreement is deleted in
-----------
its entirety and replaced with the following language:
All uses of the Sprint marks must be in an manner generally consistent with
overall Sprint brand positioning, as determined by Sprint from time to
time. Sprint will review all advertising/communication strategy and make
judgments on its consistency with the overall Sprint brand positioning
within ten (10) days of receipt. If the strategy is judged to be
inconsistent, it will not be used or will be changed to be consistent with
Sprint brand positioning. Pre-production advertising/communications will
be reviewed by Sprint for consistency with Sprint brand positioning and
personality within ten (10) days of receipt. If the
advertising/communications are judged to be inconsistent, it will not be
used or will be changed to be consistent with the Sprint brand positioning
and personality.
2. Customer Service Program Requirements. Manager has selected Sprint
PCS to provide customer service to subscribers in Manager's Service Area.
Therefore, Exhibit 8.1, 8.1.1, 8.1.2, 8.1.3 and 8.1.4 are deleted in their
entirety from the Management Agreement. If Manager selects the option to self-
provide customer service, the Management Agreement will be amended to include
the Customer Service Program Requirements then in effect for similarly situated
Other Managers; provided that Manager's Customer Service Program Requirements
will be at least as favorable to Manager as the Customer Service Program
Requirements then in effect for any Other Manager.
3. Counterparts. This Addendum may be signed in counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed as of the date first above written.
Independent Wireless One Corporation
By: /s/ Solon L. Kandel
_____________________________________
Name: Solon L. Kandel
Title: President & CEO
WirelessCo, L.P.
By: /s/ Thomas E. Mateer
______________________________________
Thomas E. Mateer
Vice President - Affiliations
Sprint Spectrum L.P.
By: /s/ Thomas E. Mateer
______________________________________
Thomas E. Mateer
Vice President - Affiliations
Sprint Communications Company L.P.
By: /s/ Don A. Jensen
______________________________________
Don A. Jensen
Vice President - Law
3
<PAGE>
Schedule of Definitions
This Schedule of Definitions is the "Schedule of Definitions" referred to
in and incorporated by reference under the Management Agreement, Services
Agreement, and Trademark License Agreements (as such agreements are defined
below). Whenever the phrase "this agreement" is used below, such phrase refers
to the particular agreement under whose terms this Schedule of Definitions is
being applied in that instance. If citations to sections or exhibits of
different agreements are included in a definition, the citation to the
particular agreement under whose terms this Schedule of Definitions is being
applied controls to the exclusion of the citations to different agreements.
The following words and phrases used in this agreement have the following
meanings:
"Addendum" means any addendum attached to this agreement that contains the
amendments to this agreement; such Addendum is expressly incorporated as a part
of this agreement.
"Affiliation Agreement" means any and all of the agreements, known as
Sprint PCS Affiliation Agreements, whereby an affiliate and Sprint PCS and/or
one or more of Sprint PCS' Related Parties agree to the terms and conditions
under which such affiliate will manage the Service Area Network identified in
such agreement, using such Affiliates own PCS license issued by the FCC and any
documents incorporated by reference in such agreement.
"Agent" has the meaning set forth in Section 3.1 of the Sprint Spectrum
Trademark and Service Mark License Agreement or Section 3.1 of the Sprint
Trademark and Service Mark License Agreement.
"Arbiter" has the meaning set forth in Section 12.1.3 of the Management
Agreement or Section 5.1.3 of the Services Agreement.
"Available Services" means those categories of services listed on Exhibit
2.1.1 to the Services Agreement (as the same may be amended from time to time by
Sprint Spectrum and made available to Manager under the terms of the Services
Agreement).
"Available Services and Fees Schedule" means that schedule set forth on
Exhibit 2.1.1 to the Services Agreement, which sets forth the Available Services
offered from time to time and the fees charged for such Available Services.
"Bankruptcy" means, for the purposes of the Trademark License Agreements,
either a Voluntary Bankruptcy or an Involuntary Bankruptcy.
"Brands" means the Sprint PCS Brands and the Sprint Brands.
"BTA" means a Basic Trading Area for which a Basic Trading Area (BTA)
license is issued by the FCC.
"Build-out Plan" means the plan agreed upon by Manager and Sprint PCS, along
with any modifications and updates to the plan, respecting the construction and
design of the Service Area Network, a copy of which is attached as Exhibit 2.1
to the Management Agreement.
"Business Day" means a day of the year that banks are not required or
authorized to close in the State of New York.
"Cancelled Service" has the meaning set forth in Section 3.2 of the
Services Agreement.
"CDMA" means code division multiple access.
<PAGE>
"Change of Control" has the meaning set forth in Section 17.15.3 of the
Management Agreement.
"Collected Revenues" has the meaning set forth in Section 10.4 of the
Management Agreement.
"Confidential Information" means all Program Requirements, guidelines,
standards, and programs, the technical, marketing, financial, strategic and
other information provided by each party under the Management Agreement,
Services Agreement, and Trademark License Agreements, and any other information
disclosed by one party to the other party pursuant to the Management Agreement,
Services Agreement, and Trademark License Agreements that is not specifically
excluded by Section 12.2 of the Management Agreement. In addition to the
preceding sentence, "Confidential Information" has the meaning set forth in
Section 3.1 of the Sprint Spectrum Trademark and Service Mark License Agreement
or Section 3.1 of the Sprint Trademark and Service Mark License Agreement.
"Controlled Related Party" means the Parent of any Person and each
Subsidiary of such Parent. As used in Section 1.2 and Article 3 of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 1.2 and Article
3 of the Sprint Trademark and Service Mark License Agreement, the term
"Controlled Related Party" will also include any Related Party of a Person that
such Person or its Parent can directly or indirectly unilaterally cause to take
or refrain from taking any of the actions required, prohibited or otherwise
restricted by such Section, whether through ownership of voting securities,
contractually or otherwise.
"Default Rate" means the rate per annum (computed on the basis of the
actual number of days elapsed in a year of 365 or 366 days, as applicable),
compounded monthly, equal to the Prime Rate (adjusted as and when changes in the
Prime Rate occur) plus five percent (5%).
"Disaggregated License" means that portion of the License that Manager may
or is required to purchase under Section 11 of the Management Agreement from
Sprint PCS under certain circumstances, after Sprint PCS' receipt of FCC
approval of the necessary disaggregation and partition, which portion comprises
no less than the amount of spectrum sufficient to operate one duplex CDMA
carrier (including the required guard bands) within the PCS Spectrum, and no
more than 10 MHz of the Spectrum (at Manager's designation) covering the Service
Area, and which includes the frequencies then in use in the Service Area Network
and, if applicable, adjacent frequencies, so long as such frequencies in the
aggregate do not exceed 10 MHz.
"Dispute Notice" has the meaning set forth in Section 12.1.3 of the
Management Agreement or Section 5.1.3 of the Services Agreement.
"Dispute Notice Date" has the meaning set forth in Section 12.1.3 of the
Management Agreement or Section 5.1.3 of the Services Agreement.
"Encumbrances" has the meaning set forth in Section 5.1(a) of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 5.1(a) of the
Sprint Trademark and Service Mark License Agreement.
"Entire Business Value" has the meaning set forth in Section 11.7.3 of the
Management Agreement.
"Event of Termination" means any of the events described in Section 11.3
of the Management Agreement. For the purposes of the Sprint Spectrum Trademark
and Service Mark License Agreement only, "Event of Termination" has the meaning
set forth in Section 13.2 of that agreement. For the purposes of the Sprint
Trademark and Service Mark License Agreement only, "Event of Termination" has
the meaning set forth in Section 13.2 of that agreement.
<PAGE>
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Financial Lender" means any and all of those commercial and financial
institutions that provide material credit to Manager for the purpose of
assisting Manager with the fulfillment of its obligations and duties under this
agreement.
"fixed wireless local loop" has the meaning set forth in Section 2.4 of
the Management Agreement.
"home service area" means the geographic area within which a customer can
make a local call on the customer's PCS phone (i.e., the customer does not incur
an extra charge).
"Inbound Roaming" means calls placed by a non-Sprint PCS Network customer
on the Sprint PCS Network.
"Indemnitee" and "Indemnitor" have the meanings set forth in Section
13.3.1 of the Management Agreement or Section 6.3.1 of the Services Agreement.
"Initial Term" has the meaning set forth in Section 11.1 of the Management
Agreement.
"Involuntary Bankruptcy" has the meaning set forth in Section 11.3.7 of
the Management Agreement.
"Law" means all laws (statutory or otherwise), ordinances, rules,
regulations, bylaws, Orders and codes of all governmental and regulatory
authorities, whether United States Federal, state or local, which are applicable
to the Sprint PCS Products and Services.
"License" means the PCS license(s) issued by the FCC described on the
Service Area Exhibit to the Management Agreement.
"Licensed Marks" means the trademarks and service marks referred to in the
Recitals section of the Trademark License Agreement under whose terms this
definition is being applied, and such other marks as may be adopted and
established under said agreement from time to time.
"Licensee" has the meaning set forth in the introductory paragraph to the
particular agreement under whose terms this definition is being applied.
"Licensor" has the meaning set forth in the introductory paragraph to the
particular agreement under whose terms this definition is being applied.
"local calling area" means the geographic area within which a customer can
make a local call on the customer's PCS handset without incurring a long
distance charge.
"Loss" means any and all damage, loss, liability, claim, out-of-pocket cost
and expense, including reasonable expenses of investigation and reasonable
attorneys' fees and expenses, but excluding consequential or special damages.
"Management Agreement" means that certain Sprint PCS Management Agreement
executed by Manager and Sprint PCS and any documents incorporated by reference
in said agreement.
"Manager" means the party to this agreement as indicated in the
introductory paragraph of this agreement.
<PAGE>
"Manager Management Report" has the meaning set forth in Section 12.1.2 of
the Management Agreement.
"Manager's Products and Services" means all types and categories of
wireless communications services and associated products that are offered by
Manager in the Service Area under Section 3.2 of the Management Agreement.
"Marketing Communications Guidelines" means the guidelines issued by Sprint
or Sprint PCS in accordance with Section 5.2 of the Management Agreement with
respect to the marketing, promotion, advertising, distribution, lease and sale
of Sprint PCS Products and Services, as they may be amended from time to time by
Sprint or Sprint PCS in accordance with the terms of the Trademark License
Agreements.
"Master Signature Page" means the document that the parties to the
Management Agreement, Services Agreement and/or one or more of the Trademark
License Agreements sign to evidence their agreement to execute, become a party
to and be bound by each of the agreements, or parts thereof, listed above the
particular party's signature on such Master Signature Page.
"MFN price" or "Most Favored Nation price" means, with respect to resale,
the best local market price offered to any third party for the purchase of air
time on Manager's network including but not limited to any third party who may
use the air time for its own wireless communications services or resell the air
time, and, with respect to roaming, the lowest roaming charge of Manager to
other wireless carriers when their customers roam on the Service Area Network.
"MIN" means the 24-bit mobile identification number corresponding to the
7-digit telephone number assigned to the handset, used for both billing and
receiving calls.
"MTA" means a Major Trading Area for which a MTA license is issued by the
FCC.
"New Coverage" means the build-out in the Service Area that is in addition
to the build-out required under the then-existing Build-out Plan, which build-
out Sprint PCS or Manager decides should be built-out.
"Notice Address Schedule" means the schedule attached to the Master
Signature Page that provides the mailing and courier delivery addresses, and the
facsimile number, for giving notices to each of the parties signing the Master
Signature Page. The Notice Address Schedule may include supplemental addresses
that serve as additional or alternate notice addresses for use by the parties in
specifically prescribed situations.
"NPA-NXX" means as follows: "NPA" means numbering plan area, which is the
area code for a telephone number, "NXX" refers to the first three digits of a
telephone number, which identify the specific telephone company central office
that serves that number.
"Offer" means an offer received by Manager to sell substantially all of the
assets comprising or used in connection with the operation and management of the
Service Area Network or any portion of the Service Area Network.
"Offer Notice" means a written notice given by Manager to Sprint PCS that
sets forth in detail the terms and conditions of an Offer and the name and
address of the person or entity making the Offer.
"Offered Interest" means the assets that Manager proposes to sell pursuant
to an Offer.
"Operating Assets" means the assets Manager or its Related Parties owns and
uses in connection with the operation of the Service Area Network, at the time
of termination, to provide the Sprint PCS Products and Services. Operating
<PAGE>
Assets does not include items such as furniture, fixtures and buildings that
Manager or its Related Parties use in connection with other businesses. Examples
of Operating Assets include without limitation: switches, towers, cell sites,
systems, records and retail stores.
"Operational Level of Sprint PCS" means the average operational level of all
the service area networks operated by Sprint PCS and its Related Parties without
the use of a manager or affiliate, as measured by Sprint PCS, unless the
operational level, as measured by Sprint PCS, of all of the service area
networks operated by Sprint PCS and its Related Parties without the use of a
manager or affiliate that are contiguous to the Service Area are below the
national average, in which case "Operational Level of Sprint PCS" means the
average operational level of those contiguous service area networks.
"Order" means any order, writ, injunction, decree, judgment, award or
determination of any court or governmental or regulatory authority.
"Other Managers" means any person or entity with which Sprint PCS has
entered into an agreement similar to this agreement or an Affiliation Agreement,
including without limitation an affiliate under an Affiliation Agreement or a
manager under another Management Agreement, under which the person or entity
designs, constructs and manages a service area network and offers and promotes
Sprint PCS Products or Services.
"Outbound Roaming" means calls placed by a Sprint PCS Network customer on
a non-Sprint PCS network.
"Parent" means, with respect to any Person, the ultimate parent entity (as
determined in accordance with the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 and the rules and regulations promulgated thereunder) of such Person;
except that if such ultimate parent entity is an individual, the Parent will be
the highest entity in the ownership chain from the ultimate parent entity to and
including such Person that is not an individual.
"parties" means, with respect to the Management Agreement, Sprint PCS and
Manager. For the purpose of the services Agreement only, "parties" means Sprint
Spectrum and Manager. Sprint is not a party to the Management Agreement, except
to the limited extent described on the signature page executed on behalf of
Sprint. For the purpose of the Trademark License Agreements only, "parties"
means Licensor and Licensee.
"PCS" means a radio communication system authorized under the rules for
broadband personal communications services designated as Subpart E of Part 24 of
the FCC's rules, including the network, marketing, distribution, sales, customer
interface and operations functions relating thereto.
"PCS Spectrum" means the range of frequencies that Sprint PCS is authorized
to use under the License.
"Permitted Assignee" means any assignee of the rights and obligations of
Licensee pursuant to an assignment consented to in writing by Licensor, in its
sole discretion, in accordance with Section 14.1 of the Sprint Spectrum
Trademark and Service Mark License Agreement or Section 14.1 of the Sprint
Trademark and Service Mark License Agreement, or any subsequent permitted
assignee of any such permitted assignee.
"Person" means any individual, partnership, limited partnership, limited
liability company, corporation, trust, other business association or business
entity, estate, or other entity.
"pops" means the population covered by a license or group of licenses.
Unless otherwise noted, as used in the Management Agreement, pops means the most
recent Rand-McNally Population Survey estimate of the population of a geographic
<PAGE>
area.
"Premium and Promotional Items" means all items, including clothing,
memorabilia and novelties, used to display the Licensed Marks for the purpose of
promoting the awareness, sale or image of the Sprint PCS Products and Services;
provided, however, that Premium and Promotional Items does not include marketing
and advertising materials prepared by Licensee that are subject to the Marketing
Communications Guidelines (e.g. printed materials such as bill stuffers,
brochures and similar materials).
"Prime Rate" means the rate announced from time to time by The Chase
Manhattan Bank, or its successor(s), as its prime rate.
"Program Requirements" means the standards, guidelines, plans, policies
and programs established by Sprint PCS from time to time regarding the operation
and management of the Service Area Network and the Sprint PCS business operated
using the Service Area Network, including the Program Requirements set forth in
Sections 4.1, 4.2, 4.3, 7.2 and 8.1 of the Management Agreement. Sprint PCS may
also implement Program Requirements respecting a voluntary resale program, as
defined in Section 3.5.2 of the Management Agreement.
"Purchase Notice" has the meaning set forth in Section 1.2 of Exhibit 11.8
to the Management Agreement.
"Quality Standards" has the meaning set forth in Section 2.1(a) of the
Sprint Spectrum Trademark and Service Mark License Agreement or Section 2.1(a)
of the Sprint Trademark and Service Mark License Agreement.
"Rand-McNally Population Survey" means the most recent population survey
published by Rand-McNally or, if Rand-McNally no longer publishes the surveys,
then the most recent population survey published by any successor organization
to Rand-McNally or, if no such organization exists, an organization selected by
Sprint PCS that provides surveys similar to the Rand-McNally surveys.
"Receiving Party" has the meaning set forth in Section 3.1 of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 3.1 of the
Sprint Trademark and Service Mark License Agreement.
"Related Equipment" means customer-controlled equipment for use in
connection with the Sprint PCS Products and Services including telephones,
wireless handsets and related accessories, PCMCIA cards, "smart" cards, PDA's,
PBX's, set-top boxes and data terminals.
"Related Party" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with the Person. For purposes of the
Management Agreement, Sprint Spectrum, SprintCom, American PCS Communications,
LLC, PhillieCo Partners I, L.P., and Cox Communications PCS, L.P. will be deemed
to be Related Parties. For purposes of this definition, the term "controls"
(including its correlative meanings "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Restricted Party" has the meaning set forth in Section 3.1 of the Sprint
Spectrum Trademark and Service Mark License Agreement or Section 3.1 of the
Sprint Trademark and Service Mark License Agreement.
"Selected Services" means those Available Services selected by Manager to
be provided by Sprint Spectrum under Section 2.1 of the Services Agreement. An
Available Service will not be treated as a Selected Service until Sprint
Spectrum begins providing that service.
<PAGE>
"Service Area" means the geographic area described on the Service Area
Exhibit to the Management Agreement.
"Service Area Network" means the network and business activities managed
by Manager under the Management Agreement in the Service Area under the License.
"Services Agreement" means that certain Sprint PCS Services Agreement
executed by Manager and Sprint Spectrum and any documents incorporated by
reference in said agreement, whereby Manager may delegate the performance of
certain services to Sprint PCS for fees that represent an adjustment of the fees
paid by Sprint PCS to Manager under Section 10 of the Management Agreement.
"Siting Regulations" means:
(1) FCC regulations governing tower siting, lighting, marking, monitoring,
and reporting of lighting malfunctions as set forth in 47 CFR ss.ss.
17.1 through 17.58, and as may be amended;
(2) FAA regulations governing tower siting, lighting, marking, monitoring,
and reporting of lighting malfunctions as set forth in 14 CFR ss.ss.
77.1 through 77.75, and as may be amended;
(3) FCC land use regulations as set forth in 47 CFR ss.ss.1.1301 through
1.1319, and as may be amended; and
(4) FCC radio frequency exposure regulations as set forth in 47
CFR ss.ss.1.1301 through 1.1319, and as may be amended.
"spectrum" has the same meaning as PCS Spectrum.
"Sprint" means Sprint Communications Company, L.P., a Delaware limited
partnership.
"Sprint Brands" means the "Licensed Marks" as that term is defined under
the Sprint Trademark and Service Mark License Agreement.
"Sprint PCS" means any or all of the following Related Parties who are
License holders and signatories to the Management Agreement: Sprint Spectrum
L.P., a Delaware limited partnership, SprintCom, Inc., a Kansas corporation,
PhillieCo Partners I, L.P., a Delaware limited partnership, Cox Communications
PCS, L.P., a Delaware limited partnership, and American PCS Communications, LLC,
a Delaware limited liability company. Each entity listed above is a Related
Party to each of the other listed entities.
"Sprint PCS Affiliation Agreement" has the same meaning as Affiliation
Agreement.
"Sprint PCS Brands" means the "Licensed Marks" as that term is defined
under the Sprint Spectrum Trademark and Service Mark License Agreement.
"Sprint PCS Communications Policies" means the policies established in
accordance with Section 6.4 of the Management Agreement with respect to public
relations development, maintenance and management, as they may be amended from
time to time by Sprint PCS in accordance with the terms of the Management
Agreement.
"Sprint PCS Customer Service Program Requirements" means the program and
requirements established in accordance with Section 8.1 of the Management
Agreement with respect to customer service development, maintenance and
management, as it may be amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement.
"Sprint PCS Customer Service Standards" means those customer service
<PAGE>
standards developed by Sprint PCS with respect to customer service and
maintenance as described in Section 8.1 of the Management Agreement, as it may
be amended from time to time by Sprint PCS in accordance with the terms of the
Management Agreement.
"Sprint PCS Insurance Requirements" means the insurance requirements
developed by Sprint PCS as described in Section 12.3 of the Management
Agreement, as they may be amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement.
"Sprint PCS Management Agreement" has the same meaning as Management
Agreement.
"Sprint PCS National Accounts Program Requirements" means the program and
requirements established in accordance with Section 4.2 of the Management
Agreement with respect to national accounts development, maintenance and
management, as it may be amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement.
"Sprint PCS National or Regional Distribution Program Requirements" means
any distribution program and requirements established in accordance with Section
4.1 of the Management Agreement, as it may be amended from time to time by
Sprint PCS in accordance with the terms of the Management Agreement, and entered
into by Sprint PCS or its Related Parties and a third-party distributor (for
example, a national chain of retail electronics stores) from time to time, under
which the third party will distribute, lease, or sell Sprint PCS Products and
Services on a national or regional basis. The term "distributor" means a
reseller of Sprint PCS Products and Services, or an agent of Sprint PCS
authorized to sell Sprint PCS Products and Services on behalf of Sprint PCS, or
a person engaged in any other means of wholesale or retail distribution of
Sprint PCS Products and Services.
"Sprint PCS Network" means the national wireless network and business
activities to be developed by Sprint PCS, Manager and Other Managers in the
United States and certain of its territories and possessions, which network
includes the Service Area Network.
"Sprint PCS Products and Services" means all types and categories of
wireless communications services and associated products that are designated by
Sprint PCS (whether now existing or developed and implemented in the future) as
products and services to be offered by Sprint PCS, Manager and all Other
Managers as the products and services of the Sprint PCS Network for fixed and
mobile voice, short message and other data services under the FCC's rules for
broadband personal communications services, including all local area service
plans. Sprint PCS Products and Services do not include wireline products or
services, including local exchange service, wireline long distance service, and
wireline based Internet access.
"Sprint PCS Roaming and Inter Service Area Program Requirements" means:
(i) the roaming program and requirements established in accordance with
Section 4.3 of the Management Agreement, as amended from time to time by Sprint
PCS in accordance with the terms of the Management Agreement, to provide for
customers from a carrier not associated with the Sprint PCS Network to operate
the customer's handset on the Sprint PCS Network and for customers from the
Sprint PCS Network (whether customers of Sprint PCS, Manager or an Other
Manager) to operate the customer's handset on a network of a carrier not
associated with the Sprint PCS Network, and
(ii) the program established in accordance with Section 4.3 of the
Management Agreement, as amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement, to provide for customers from one
Service Area on the Sprint PCS Network, whether managed by Sprint PCS, Manager,
<PAGE>
or an Other Manager, to operate the customer's handsets and otherwise receive
seamless service, regardless of whether the customer makes its call to or from
the Sprint PCS Network and regardless of whether the customer is a customer of
Sprint PCS, Manager or an Other Manager.
"Sprint PCS Technical Program Requirements" means the operating and
technical performance standards established by Sprint PCS, in accordance with
Section 7.2 of the Management Agreement, as amended from time to time by Sprint
PCS in accordance with the terms of the Management Agreement, for the Sprint PCS
Network as they may be amended from time to time by Sprint PCS in accordance
with the terms of the Management Agreement.
"Sprint Spectrum" means Sprint Spectrum L.P., a Delaware limited
partnership.
"Sprint Spectrum Brands" means the "Licensed Marks" as that term is defined
under the Sprint Spectrum Trademark and Service Mark License Agreement.
"Sprint Spectrum Trademark and Service Mark License Agreement" means that
certain Sprint Spectrum Trademark and Service Mark License Agreement executed by
Manager and Sprint Spectrum and any documents incorporated by reference in said
agreement.
"Sprint Trademark and Service Mark License Agreement" means that certain
Sprint Trademark and Service Mark License Agreement executed by Manager and
Sprint and any documents incorporated by reference in said agreement.
"SprintCom" means SprintCom, Inc., a Kansas corporation.
"Subsidiary" of any Person as of any relevant date means a corporation,
company or other entity (i) more than 50% of whose outstanding shares or equity
securities are, as of such date, owned or controlled, directly or indirectly
through one or more Subsidiaries, by such Person, and the shares or securities
so owned entitle such Person and/or Subsidiaries to elect at least a majority of
the members of the board of directors or other managing authority of such
corporation, company or other entity notwithstanding the vote of the holders of
the remaining shares or equity securities so entitled to vote or (ii) which does
not have outstanding shares or securities, as may be the case in a partnership,
joint venture or unincorporated association, but more than 50% of whose
ownership interest is, as of such date, owned or controlled, directly or
indirectly through one or more Subsidiaries, by such Person, and in which the
ownership interest so owned entitles such Person and/or Subsidiaries to make the
decisions for such corporation, company or other entity.
"Successor Notice" has the meaning set forth in Section 17.15.2(e) of the
Management Agreement.
"Term" means during the term of the Management Agreement, including the
Initial Term and any renewal terms.
"Trademark and Service Mark Usage Guidelines" means the rules governing
the depiction and presentation of the Licensed Marks then generally in use by
Licensor, to be furnished by Licensor to Licensee, as the same may be amended
and updated from time to time by Licensor.
"Trademark License Agreements" means the Sprint Trademark and Service Mark
License Agreement and the Sprint Spectrum Trademark and Service Mark License
Agreement.
"Type II Report" has the meaning set forth in Section 12.1.2 of the
Management Agreement.
"Voluntary Bankruptcy" has the meaning set forth in Section 11.3.7 of the
<PAGE>
Management Agreement.
"wireless mobility communications network" means a radio communications
system operating in the 1900 MHz spectrum range under the rules designated as
Subpart E of Part 24 of the FCC's rules.
<PAGE>
EXHIBIT 1.7 (AMENDED)
BUILD-OUT AND WORKING CAPITAL FINANCING
Manager intends to finance the build-out of the Service Area Network and to
provide the necessary working capital to operate the business through a
combination of private equity, high-yield debt and bank debt. Manager estimates
that it will raise in the range of $475 million to fund its ten-year business
operations in the Service Area. Manager currently is funded through equity
contributions and commitments from founders of Manager and a group of
independent telephone companies.
To fund the additional requirements, Manager intends to complete the
private equity and high yield debt placements and to obtain a revolving and term
credit facility with a lending institution. Manager anticipates financing its
operations in the Service Area through the following sources and in the
following amounts:
Private Equity Approximately $135 Million
High Yield Debt Approximately $100 Million
Revolving Bank Facility Approximately $ 70 Million
Senior Term Debt Approximately $170 Million
These projected funding amounts and the sources are subject to change due to the
financial needs of the Manager and based on conditions in the financial markets.
Manager will prioritize its financing efforts to meet the building out and
operational requirements of the Service Area Network in accordance with the
Build-Out Plan, Exhibit 2.1. Manager agrees to have financing in a sufficient
amount to complete each phase of the Build-Out Plan.
<PAGE>
EXHIBIT 1.7 (AMENDED)
IWO HOLDINGS, INC.
------------------
PROPOSED CAPITAL STRUCTURE
<TABLE>
<CAPTION>
Amount Amount
Debt ($MM) Equity ($MM)
---- ----- ------ -----
<S> <C> <C> <C>
Senior Debt: Investcorp Investors (including 119
Odyssey)
Revolver 70 Founders, Management and Other 16
Investors
Tranche A Term 120
Tranche B Term 50
Committed Subordinated
Bridge Debt 100
----- -------
Total 340 Total 135
</TABLE>
<PAGE>
Exhibit 2.1 (Amended)
Build Out Plan
Independent Wireless One
Phase 1 - 2000
--------------
BTA 7 Albany, NY (December 2000)
[***]
BTA 51 New York, NY (Orange County, NY) (December 2000)
[***]
Phase 1 - 2001
BTA 438 Syracuse, NY (September 2001, except for SR 481)
[***]
*** Confidential portions omitted and filed with the Commission.
<PAGE>
BTA 453 Utica-Rome, NY (September 2001)
[***]
BTA 43 Binghamton, NY (October 2001)
[***]
BTA 164 Glens Falls, NY (November 2001)
[***]
BTA 361 Poughkeepsie, NY (November 2001, except for Taconic State Parkway)
[***]
BTA 51 Boston, MA/NH (Rockingham County, NH) (December 2001)
BTA 51 Boston, MA/NH (Strafford County, NH) (December 2001)
BTA 63 Burlington, VT (December 2001)
[***]
BTA 127 Elmira-Corning, NY (December 2001)
[***]
*** Confidential portions omitted and filed with the Commission.
<PAGE>
BTA 208 Ithaca, NY (December 2001)
[***]
BTA 227 Keene, NH/VT (December 2001)
[***]
BTA 249 Lebanon, NH/VT (December 2001)
[***]
BTA 274 Manchester, NH (December 2001)
[***]
BTA 321 New York, NY (Sullivan County, NY) (December 2001)
[***]
BTA 351 Pittsfield, MA (December 2001)
[***]
*** Confidential portions omitted and filed with the Commission.
<PAGE>
BTA 352 Plattsburgh, NY (December 2001)
[***]
BTA 388 Rutland, VT (December 2001)
[***]
BTA 463 Watertown, NY (December 2001)
[***]
Phase 2 - 2002
BTA 43 Binghamton, NY (December 2002)
[***]
BTA 63 Burlington, VT (December 2002)
[***]
BTA 333 Oneonta, NY (December 2002)
[***]
*** Confidential portions omitted and filed with the Commission.
<PAGE>
EXHIBIT 2.1
IWO Build-out Plan
<TABLE>
<CAPTION>
Service Area Build-out Plan
-----------------------------------------------------------------------------------------------------------------------------------
Licensed
BTA State Total Area Total 1999 Covered 1999 Pops % Covered, 1999
BTA# BTA Name (or County Name) (Sq Mi) BTA Pops Pops
-----------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C>
7 Albany-Schenectady NY 6,907 1,050,949 790,823 75%
43 Binghamton NY 2,963 346,122
Phase I 187,534 54%
Phase II 52,431 15%
51 Boston (Rockingham Co., NH) MA 730 271,260 135,224 50%
51 Boston (Stafford Co., NH) MA 380 106,001 42,438 40%
63 Burlington VT 6,181 394,211
Phase I 46,214 12%
Phase II 153,081 39%
127 Elmira-Corning-Hornell NY 4,452 312,800 159,518 51%
164 Glen Falls NY 1,799 124,570 53,960 43%
208 Ithaca NY 491 95,557 83,018 87%
227 Keene NH 1,548 113,930 71,237 63%
249 Lebanon-Claremont NH 3,282 173,466 107,889 62%
274 Manchester-Nashua-Concord (Less NH 3,189 448,451 304,931 68%
Nashua)
321 New York (Orange Co.) NY 837 330,714 308,964 93%
321 New York (Sullivan Co.) NY 995 69,032 49,546 72%
333 Oneonta (Phase II) NY 2,485 106,896 42,993 40%
351 Pittsfield MA 952 134,109 89,299 67%
352 Plattsburgh NY 3,025 115,929 66,007 57%
361 Poughkeepsie-Kingston NY 1,980 427,680 366,160 86%
Taconic State Parkway
388 Rutland-Bennington VT 1,584 98,681 56,141 57%
438 Syracuse NY 3,717 790,964 628,879 80%
SR481
453 Utica-Rome NY 2,717 305,602 205,455 67%
463 Watertown NY 7,187 303,652 70,138 23%
TOTALS 57,401 6,120,576 4,071,880 67%
</TABLE>
<TABLE>
Completion BTA License License
Date Holder Block
-----------------------------------------
<S> <C> <C>
12/2000 Sprint PCS B
Sprint PCS B
10/2001 Sprint PCS B
12/2002 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
Sprint PCS B
12/2001 Sprint PCS B
12/2002 Sprint PCS B
12/2001 Sprint PCS B
11/2001 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
12/2000 Sprint PCS B
12/2001 Sprint PCS B
12/2002 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
11/2001 Sprint PCS B
12/2001 Sprint PCS B
12/2001 Sprint PCS B
09/2001 Sprint PCS B
12/2001 Sprint PCS B
09/2001 Sprint PCS B
12/2001 Sprint PCS B
</TABLE>
<PAGE>
Exhibit 2.1
Building Plan Map
Independent Wireless One LLC
[Map of northeastern United States showing network buildout plan. Map is color
coded to show the portion of the build-out to be completed during Phase I of the
build-out and the portion of the build-out to be completed during Phase II of
the build-out. Map is also color coded to show basic trading area boundaries;
Sprint PCS' current coverage; and the IWO licensed area.]
<PAGE>
Exhibit A to Addendum I
Exhibit 2.6 to Management Agreement
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "AGREEMENT") is made and entered into
as of February 9, 1999, by SPRINT SPECTRUM L.P. and its wholly-owned
subsidiaries SPRINT SPECTRUM EQUIPMENT COMPANY, L.P. and SPRINT SPECTRUM REALTY
COMPANY, L.P., all of which are Delaware limited partnerships (together,
"SELLER"), and Independent Wireless One Corporation, a Delaware Corporation
("BUYER").
Recitals
A. Seller or one of Seller's wholly owned subsidiaries owns or leases that
certain property identified on the attached EXHIBIT A (the "ASSETS").
B. Buyer and Seller have entered into that certain Sprint PCS Management
Agreement dated February 9, 1999 (the "MANAGEMENT AGREEMENT"), to which this
Agreement is made an exhibit upon its execution by the parties and that
provides, among other things, that Buyer will purchase and Seller will sell the
Assets, upon the terms and conditions set forth in this Agreement;
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement the parties hereto agree as follows:
1. TRANSFER OF ASSETS. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey and assign to Buyer, and
Buyer agrees to purchase from Seller, all of Seller's right, title
and interest in the Assets free and clear from all liens created by
the Seller other than the Assumed Liabilities (as defined below).
The consummation of this transaction (the "CLOSING") will occur,
subject to the terms and conditions of this Agreement, on or before
August 1, 1999 (the "CLOSING DATE").
2. PURCHASE PRICE. The purchase price of the Assets (the "PURCHASE
PRICE") will equal Eighty-Eight Million Four Hundred Fifty
Thousand Dollars ($88,450,000).
The parties agree that the allocation of the Purchase Price among
the Assets set forth above is the result of arm's-length
negotiations between the parties as to the price of each item or
category of items of the Assets, and neither party will make any
claim or treat any item on its tax returns in a manner that is
inconsistent with such allocation.
Sprint PCS shall have the right to retain ownership and control of
any of the cell sites set forth in EXHIBIT A which are (i) owned in
fee simple, (ii) for which Sprint PCS has a ground lease, or (iii)
for which Sprint PCS has the right to co-locate any users of the
site in addition to Sprint PCS, upon providing to Manager 10 days'
written notice identifying each cell site to be retained by Sprint
PCS. For each cell site retained by Sprint PCS, the Purchase Price
shall be reduced in the applicable amount as set forth
<PAGE>
in EXHIBIT D. For each cell site retained by Sprint PCS, Sprint PCS
shall provide to Manager the right to lease space at that cell site
sufficient to maintain or implement operation of Manager's network.
The retained sites shall be leased by Sprint PCS to Manager at
market lease rates for sites of a similar nature located in the
Service Area. The right of Sprint PCS hereunder to provide notice
to retain certain cell sites shall terminate effective
June 1, 1999.
3. REVIEW PERIOD. For a period extending for thirty (30) days after
this Agreement has been executed by both parties ("REVIEW PERIOD"),
Buyer may review such documents and make, or cause to be made by
agents or contractors of Buyer's choosing, any and all physical,
mechanical, environmental, structural or other inspections of the
Assets as Buyer deems appropriate. If, in Buyer's reasonable
discretion, based upon the results of Buyer's inspections, Buyer
determines that the Assets are unsatisfactory to Buyer, Buyer may
by written notice to Seller within the Review Period, terminate
this Agreement, and upon such termination, neither party will have
any further rights or obligations under this Agreement. Any
termination notice provided to Seller must contain a specific
description of the condition on which Buyer bases such termination.
If Buyer does not terminate this Agreement by such notice within
the Review Period, this Agreement will remain in full force and
effect in accordance with its terms. Buyer may not elect to
purchase less than all of the Assets.
4. ASSUMPTION OF LIABILITIES. Buyer agrees to assume all liabilities,
debts, expenses and obligations now existing or hereafter arising
in, to, under or pursuant to the Assets as of the Closing Date,
including, without limitation, all liabilities, debts, expenses and
obligations relating to all the Assets (the "ASSUMED LIABILITIES")
and to pay and perform the Assumed Liabilities when due. Buyer's
assumption of the Assumed Liabilities does not enlarge any rights
of third parties under contracts or arrangements with Buyer or
Seller. Nothing in this Agreement prevents Buyer from contesting in
good faith any of the Assumed Liabilities.
5. CONDITION OF ASSETS. It is understood and agreed that Seller is not
making and specifically disclaims any warranties or representations
of any kind or character, express or implied, with respect to the
Assets, including, but not limited to, warranties or
representations as to matters of title (except that Seller
represents and warrants that Seller or wholly owned subsidiary of
Seller that is conveying or assigning an Asset to Seller has not
previously conveyed or assigned that Asset to any other party),
zoning, tax consequences, physical or environmental conditions,
availability of access, operating history or projections,
valuation, governmental approvals, governmental regulations or any
other matter or thing relating to or affecting the Assets
including, without limitation: (i) the value, condition,
merchantability, marketability, profitability, suitability or
fitness for a particular use or purpose of the Assets; (ii) the
manner or quality of the construction or materials incorporated
into any of the Assets and (iii) the manner, quality, state of
repair or lack of repair of the Assets. Buyer agrees that with
respect to the Assets, Buyer has not relied upon and will not rely
upon, either directly or indirectly, any representation or warranty
of Seller or any agent of Seller other than as specifically set
forth in this
<PAGE>
Agreement. Buyer represents that it is a knowledgeable purchaser
and that it is relying solely on its own expertise and that of
Buyer's consultants, and that Buyer will conduct such inspections
and investigations of the Assets, including, but not limited to,
the physical and environmental conditions thereof, and shall rely
upon same, and, upon closing, shall assume the risk that adverse
matters, including, but not limited to, adverse physical and
environmental conditions, may not have been revealed by Buyer's
inspections and investigations. Buyer acknowledges and agrees that
upon closing, Seller shall sell and convey to Buyer and Buyer shall
accept the Assets "as is, where is" with all faults, and Buyer
further acknowledges and agrees that there are no oral agreements,
warranties or representations, collateral to or affecting the
Assets by Seller, any agent of Seller or any third party. The terms
and conditions of this paragraph shall expressly survive the
closing.
6. DAMAGE OR DESTRUCTION. If prior to the Closing Date, any of the
Assets are destroyed or substantially damaged by fire, lightning or
any other cause, or all or any part of the Assets is taken by
eminent domain (or is the subject of a pending or contemplated
taking which has not been consummated), Seller will immediately
deliver to Buyer written notice of such event or condition, and
Buyer will have the option of (a) enforcing this Agreement and
retaining any insurance proceeds or proceeds of the taking by
eminent domain, or (b) terminating this Agreement by written notice
within twenty (20) days after receiving written notice from Seller
of such destruction, damage or claim. If this Agreement is
terminated, neither party will have any further obligation under
this Agreement. The risk of loss will be borne by Seller until the
Closing Date.
7. CLOSING. If Buyer does not terminate the Agreement pursuant to
Paragraph 3 or 6 of this Agreement, on the Closing Date:
(a) Seller (or the wholly owned entity owning any Asset if
other than Seller) and Buyer shall execute and deliver
to each other an Assignment of Leases and Bill of Sale
in the form attached hereto as EXHIBIT B;
(b) Buyer shall pay the Purchase Price to Seller in
immediately available funds;
(c) Buyer shall provide copies of all necessary consents,
if any, for the conveyance or assignment of the Assets.
Such consents to be in the form of Consent and Release
attached hereto as EXHIBIT C.
For each cell site which is the subject of this Asset
Purchase Agreement and for which a release of Sprint
PCS' obligations cannot be obtained prior to the
Closing Date, Sprint PCS, in its sole discretion, may
continue to be obligated under any existing leases or
purchase obligations for any such cell sites subject to
(1) receipt of a consent from the landlord or seller of
the cell site consenting to the assumption of the
leasehold or purchase obligation by Manager and (2)
execution of an agreement setting forth the obligations
of Manager with respect to each such cell site for
which a release cannot be obtained and containing terms
and conditions acceptable to Sprint PCS.
Buyer is responsible for paying or causing to be paid all transfer,
stamp, recording, sales, use, excise or similar taxes, fees or
duties payable in connection with the sale, assignment or
conveyance of Seller's interest in and to the
<PAGE>
Assets or the assumption of the Assumed Liabilities.
Buyer is also responsible for reporting all taxable property to the
appropriate taxing authority for ad valorem tax purposes. Buyer
will pay as and when due all taxes, assessments, liens,
encumbrances, levies and other charges against the real estate,
personal property and intangible property that is sold,
transferred, assigned or otherwise conveyed to Buyer pursuant to
this agreement.
8. FURTHER ASSURANCES. Seller will from time to time at the request of
Buyer, do, make, execute, acknowledge and deliver all such other
instruments of conveyance, assignment, and transfer, in form and
substance satisfactory to Seller, as Buyer may reasonably require
for the more effective conveyance and transfer of any of the
Assets.
9. INDEMNIFICATION. Breaches of this Agreement by either Buyer or
Seller will be a breach for which the non-breaching party is
entitled to indemnification in accordance with the terms and
conditions and utilizing the procedures set forth in the Management
Agreement.
10. ENTIRE AGREEMENT AND BINDING EFFECT. This Agreement and the
exhibits and schedules attached to this Agreement (which are
incorporated by this reference) and the Management Agreement,
including all addenda thereto, contain the entire agreement between
the parties hereto with respect to the acquisition of the Assets
and the other transactions contemplated herein, and supersedes all
prior agreements or understandings between the parties hereto
relating to the subject matter hereof. All exhibits attached hereto
are incorporated herein by this reference.
11. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or any application thereof is invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement and
any other application thereof will not in any way be affected or
impaired thereby. Paragraph headings herein or in any exhibit
hereto have no legal significance and are used solely for
convenience of reference.
12. NO OTHER REPRESENTATIONS AND WARRANTIES. Seller makes no
representation or warranty to Buyer with respect to the Assets,
except as expressly set forth in this Agreement.
13. WAIVERS AND NOTICES. Any term or condition of this Agreement may be
waived at any time by the party entitled to the benefit thereof by
a written instrument. No delay or failure on the part of any party
in exercising any rights hereunder, and no partial or single
exercise thereof, will constitute a waiver of such rights or of any
other rights hereunder. All notices, consents, requests,
instructions, approvals and other communications provided for
herein will be validly given, made or served if given, made or
served in accordance with the Management Agreement.
14. COUNTERPARTS. This Agreement may be executed in any number of
<PAGE>
counterparts, each of which will constitute an original but all of
such counterparts taken together will constitute only one
Agreement.
15. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER: SPRINT SPECTRUM L.P.
By
____________________________________________________
Name:
_____________________________________________
Title:
____________________________________________
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By
____________________________________________________
Name:
_____________________________________________
Title:
____________________________________________
SPRINT SPECTRUM REALTY COMPANY, L.P.
By
____________________________________________________
Name:
_____________________________________________
Title:
____________________________________________
BUYER:
INDEPENDENT WIRELESS ONE CORPORATION
By
____________________________________________________
Name:
_________________________________________________
Title:
________________________________________________
<PAGE>
First Amendment to
Asset Purchase Agreement
This First Amendment (the "Amendment") to that certain Asset Purchase
Agreement (the "Agreement") dated as of February 9, 1999, by SPRINT SPECTRUM
L.P., SPRINT SPECTRUM EQUIPMENT COMPANY, L.P. and SPRINT SPECTRUM REALTY
COMPANY, L.P., all of which are Delaware limited partnerships (together
"Seller"), and INDEPENDENT WIRELESS ONE CORPORATION, a Delaware corporation
("Buyer") is effective as of December 17, 1999. Capitalized terms used herein
and not otherwise defined have the meaning given them in the Agreement.
1. Modifications to Exhibit A. Exhibit A, a copy of which is attached
--------- ----------
hereto and incorporated into the Agreement by this reference, is
modified by separating the Assets into two categories: Retail-Related
Assets and Network-Related Assets. Seller hereby represents and
warrants that the Assets constitute all of the assets (other than the
Excluded Assets) used in or necessary for the delivery of the Sprint
PCS Products and Services (as defined in the Management Agreement)
being delivered in the Service Area as of the date of the Phase I
Closing (as defined below).
2. Closing Date. Section 1 of the Agreement is deleted in its entirety
and replaced with the following:
1. Transfer of Assets. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey and assign to Buyer, and
Buyer agrees to purchase from Seller, all of Seller's right title
and interest in the Assets free and clear from all liens created
or suffered by Seller other than the Assumed Liabilities (as
defined below). The closing of the transactions contemplated
hereby shall occur in four phases. The first phase of the Closing
shall occur on December 17, 1999 (the "Phase I Closing"). At the
Phase I Closing, Seller shall transfer to Buyer the Headquarters
and the Headquarters FFE (as such terms are defined in Exhibit
A). The second phase of the Closing shall occur on January 5,
2000 (the "Phase II Closing") At the Phase II Closing, Seller
shall transfer to Buyer the Accounts Receivable (as such term is
defined in Exhibit A) and the Subscribers (as such term is
defined in Addendum II to the Management Agreement). The third
phase of the Closing shall occur on February 1, 2000 (the "Phase
III Closing"). At the Phase III Closing, Seller shall transfer to
Buyer the Retail Related Assets. The fourth phase of the Closing
shall occur on March 31, 2000 (the "Phase IV Closing") (the Phase
I Closing, the Phase II Closing, the Phase III
<PAGE>
Closing and the Phase IV Closing are collectively referred to
herein as the "Closing" and the date on which a phase of the
Closing takes place is referred to herein as a "Closing Date").
At the Phase IV Closing, Seller shall transfer to Buyer the
Network Related Assets and any other Assets that have not been
previously transferred to Buyer. Buyer acknowledges that Sprint
PCS plans to terminate employees related to the Retail Related
Assets immediately prior to the Phase III Closing (other than
engineers, which will be terminated effective January 1, 2000)
and employees related to the Network Related Assets immediately
prior to the Phase IV Closing. Each phase of the Closing
hereunder shall take place at 10:00 a.m., New York City time, at
the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New
York, New York 10166.
3. Purchase Price. Section 2 of the Agreement is hereby deleted in its
entirety and replaced with the following:
2. Purchase Price. The Purchase Price of the Assets is $84,882,037
plus the amount of the Accounts Receivable. The Purchase Price is
allocated as follows: (a) {***} of the Purchase Price is
allocated to the Retail Related Assets (the "Phase III Purchase
Price"), and (b) {***} of the Purchase Price is allocated
to the Network Related Assets (the "Phase IV Purchase Price") and
(c) the balance of the Purchase Price is allocated to the
Accounts Receivable (the "Phase II Purchase Price"). Seller and
Buyer hereby acknowledge and agree that the allocation of the
Purchase Price set forth in the preceding sentence was determined
as a result of arms-length negotiations between Seller and Buyer
as to each item or category of items of Assets, and neither
Seller nor Buyer shall make any claim or treat any item on its
tax returns in a manner that is inconsistent with such
allocation.
At the Phase II Closing, Buyer shall deliver to Seller, against
receipt of the Accounts Receivable, the Phase II Purchase Price.
At the Phase III Closing, Buyer shall deliver to Seller, against
receipt of the Retail Related Assets, the Phase III Purchase
Price. At the Phase IV Closing, Buyer shall deliver to Seller,
against receipt of the Network Related Assets and other Assets,
the Phase IV Purchase Price.
4. Review Period. The parties acknowledge that the Review period has
expired; provided, that Seller shall use commercially reasonable and
diligent efforts to provide Buyer the materials set forth on Exhibit B
---------
attached hereto.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
5. Assumption of Liabilities. Section 4 of the Agreement is deleted in
its entirety and replaced with the following language.
At the Phase I Closing, Buyer shall assume all liabilities,
debts, expenses and obligations arising and accruing after the
Phase I Closing Date due to any action or failure to act
occurring after such time in, to, under or pursuant to the
Headquarters and the Headquarters FFE. At the Phase III Closing,
Buyer shall assume all liabilities, debts, expenses and
obligations arising and accruing after the Phase III Closing Date
due to any action or failure to act occurring after such time in,
to, under or pursuant to Retail Related Assets delivered to
Buyer. At the Phase IV Closing, Buyer shall assume all
liabilities, debts, expenses and obligations arising and accruing
after the Phase IV Closing Date due to any action or failure to
act occurring after such time in, to, under or pursuant to the
Network Related Assets, and other Assets delivered to Buyer (the
liabilities assumed at the Closings are collectively referred to
herein as the "Assumed Liabilities"). Buyer will pay and perform
the Assumed Liabilities when due. Buyer's assumption of the
Assumed Liabilities does not enlarge any rights of third parties
under any contracts or arrangements with Buyer or Seller. Nothing
in this Agreement prevents Buyer from contesting in good faith
any of the Assumed Liabilities.
6. Closing. Section 7 of the Agreement is hereby deleted in its entirety
and replaced with the following:
7. Closing. If Buyer does not terminate the Agreement pursuant to
Paragraph 3 or 6 of this Agreement, on the applicable Closing Date for
each phase of the Closing:
(a) Seller (or the wholly owned entity owning any Asset if other
than Seller) and Buyer shall execute and deliver to each other an
Assignment of Leases and Bill of Sale in the form attached as
Exhibit B for the Assets to be delivered to Buyer on such Closing
Date;
(b) Buyer shall pay the portion of the Purchase Price due on
such Closing Date to Seller in immediately available funds; and
(c) Seller shall provide copies of all necessary consents, if
any, for the conveyance or assignment of the Assets to be
delivered to Buyer on such Closing Date.
Seller and Buyer acknowledge that Seller does not have a consent
for the assignment of approximately three cell sites. Seller
shall use commercially reasonable efforts to secure such consents
prior to the Phase III Closing Date. If Seller is unable to
secure such consents, and the underlying leases do not restrict
Seller from using an agent to manage the subject sites, Seller
shall provide to Buyer the full benefits of such cell
<PAGE>
sites at no cost to Buyer and shall appoint Buyer as its manager
of such sites. If the Seller is unable to secure such consents,
and the underlying leases restrict Seller from using an agent to
manage the subject sites, Seller may manage the sites for the
benefit of Buyer and Buyer will pay Seller's actual out of pocket
costs to manage such sites. In any case, Buyer shall reimburse
Seller on a monthly basis for the actual out-of-pocket rental
payments made by Seller under the lease for each such cell site.
Buyer is responsible for paying or causing to be paid when due
all transfer, stamp, recording, sales, use, excise or similar
taxes, fees or duties payable in connection with the sale,
assignment or conveyance of Seller's interest in and to the
Assets or the assumption of the Assumed Liabilities.
Buyer is also responsible for reporting all taxable property to
the appropriate taxing authority for ad valorem tax purposes.
Buyer will pay as and when due all taxes, assessments, liens,
encumbrances, levies and other charges that are Assumed
Liabilities against the real estate, personal property and
intangible property that are Assets sold, transferred, assigned
or otherwise conveyed and delivered to Buyer pursuant to this
Agreement.
7. Indemnification. Section 9 of the Agreement is hereby amended to add
the following two sentences to the beginning of such section:
Buyer shall indemnify Seller in accordance with and pursuant to
the terms and conditions of Section 13 of the Management
Agreement for any failure of Buyer to discharge any Assumed
Liabilities. Seller shall indemnify Buyer in accordance with and
pursuant to the terms and conditions of Section 13 of the
Management Agreement for any claims relating to liabilities of
Seller that are not Assumed Liabilities.
8. Continuing Effect. Except as expressly modified by the Amendment, the
Agreement continues unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER: SPRINT SPECTRUM L.P.
By:______________________________________
Name: Bernard A. Bianchino
Title: Chief Business Development Officer
SPRINT SPECTRUM EQUIPMENT COMPANY, L.P.
By:______________________________________
Name: Bernard A. Bianchino
Title: Chief Business Development Officer
SPRINT SPECTRUM REALTY COMPANY, L.P.
By:______________________________________
Name: Bernard A. Bianchino
Title: Chief Business Development Officer
BUYER: INDEPENDENT WIRELESS ONE CORPORATION
By:______________________________________
Name:_________________________________
Title:__________________________________
<PAGE>
EXHIBIT 3.1
SPRINT PCS PRODUCTS AND SERVICES
Products and Services and a brief description of each Sprint PCS Product or
Service. A detailed service and technical description of the Sprint PCS
--------------------------------------------------------------------------------
FEATURE/PRODUCT/SERVICE DESCRIPTION
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
GENERAL:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
First incoming Minute Free No airtime charges for the first minute
of an incoming call.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
On-Network Traveling Sprint PCS customer (with NPA-NXX
outside Service Area) usage on the
Sprint PCS Network outside the
customer's home service area.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Off-Network Traveling Usage by Sprint PCS customers whose
NPA-NXX is outside the Service Area on
Manager's network.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Off-Network Local Service Local service on Manager's network.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Off-Network Roaming Automatic and manual roaming on analog
networks with dual-band handset, and on
1900 CDMA networks with all handsets.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Over-The-Air-Activation Capability:
--------------------------------------------------------------------------------
Activations Customer self-activation over the air.
--------------------------------------------------------------------------------
MIN (or MSISDN) Change Over-the-air changes to MIN.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Paging to External Pagers:
--------------------------------------------------------------------------------
To Sprint-Branded Pagers Send a page to a subscriber's Sprint-
branded pager via their SPCS MIN and
voicemail.
--------------------------------------------------------------------------------
To Third-Party Pagers Send a page to a subscriber's third
party branded pager via their SPCS MIN
<PAGE>
and voicemail.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PIC Choice Must use Sprint LD. Estimated to be
available by July 1998, will use Sprint
LD, AT&T.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Home Rate USA Pay local airtime rate and applicable
long distance anywhere on the Sprint
PCS Network. Flat monthly charge.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Toll Free USA Calls in the U.S., Puerto Rico, and
Virgin Islands from the Sprint PCS
Network are free of long distance
charges up to 1,000 minutes per month.
Flat monthly charge.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Summary Bill Summarized billing without the call
detail.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PCS to PCS Promotions Ability to offer promotions for calls
originating from and terminating to
SPCS handsets.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Business Mgmt Reporting CD ROM based billing format and detail
provided to business customers.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Electronic Payment Automatic bill payment via EFT or
credit card.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Account Hierarchy Aggregate Discount Ability to offer discounts within a
liable account.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Membership Plan Annual membership plan. Lump sum paid
upfront for bundled minutes. No MRC.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Roadside Assistance Nationwide roadside assistance. Flat
monthly charge.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Automation of Account Information Via IVRU and Internet website, allow
subscriber to access used minutes,
account balance, etc.
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
DIAL PLAN:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Toll Dialing NPA+NXX+XXXX or 1+NPA+NXX-XXXX
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
International Dialing 01+CC+XXX+XXXX (Operator assisted)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Customer Care *2, 611, *611, #611
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Directory Assistance 411, *411, #411
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Operator Services 0, 00, 0+NPA+NXX+XXXX
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Emergency 911, *911, #911, 0+911, 1+911
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Three Way Calling Standard feature included in monthly
recurring charge.
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
FEATURE/PRODUCT/SERVICE DESCRIPTION
--------------------------------------------------------------------------------
Three Way Calling. Deactivation *310
--------------------------------------------------------------------------------
Three Way Calling, Activation *31
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Forward Unconditional
Activation *72+ <DN>
--------------------------------------------------------------------------------
Call Forward Unconditional *720
Deactivation
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Forward No Answer Activation *73+ <DN>
--------------------------------------------------------------------------------
Call Forward No Answer Deactivation *730
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Forward Busy Activation *74+ <DN>
--------------------------------------------------------------------------------
Call Forward Busy Deactivation *740
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Waiting Standard feature included in monthly
recurring charge.
--------------------------------------------------------------------------------
Cancel Call Waiting *70+ <DN>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Caller ID Standard feature included in monthly
recurring charge.
--------------------------------------------------------------------------------
Caller ID Call Blocking Performed by Customer Care.
--------------------------------------------------------------------------------
Caller ID Per Call Blocking *67+ <DN>
--------------------------------------------------------------------------------
Caller ID Per Call Re-activation *68+ <DN>
--------------------------------------------------------------------------------
Caller ID Per Call CNIR Restriction *82+ <DN>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Delivery Deactivation *180
--------------------------------------------------------------------------------
Call Delivery Re-activation *18
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Call Restriction:
--------------------------------------------------------------------------------
Long Distance Prevent originating long distance
calls when required, or subscriber
desired.
--------------------------------------------------------------------------------
International Calls Prevent originating international
<PAGE>
calls when required, or subscriber
desired.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Hotlining Call intercept and delivery to
Customer Care.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Voice Mail:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Platform Comverse
--------------------------------------------------------------------------------
One Touch Access Voicemail one button access on
handset.
--------------------------------------------------------------------------------
Message Waiting Notification Tone and display notification of
messages.
--------------------------------------------------------------------------------
Hands-free Listening Automatic hands free reviewing of
voice messages upon accessing the
mailbox.
--------------------------------------------------------------------------------
Pager Notification (SPCS/Sprint Notification of voice messaging and
pager) numeric paging.
--------------------------------------------------------------------------------
Voicemail Callback/Place Call One touch call return of a voice
message without leaving the mailbox.
--------------------------------------------------------------------------------
Urgent Message Notification Outside callers can designate message
as urgent.
--------------------------------------------------------------------------------
Mailbox-to-Mailbox Messaging Available later in 1998. The function
of recording or forwarding a message
from one mailbox to one or many.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Short Message Service:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Numeric Messaging Available Sept 1, 98
--------------------------------------------------------------------------------
Text Messaging Available Sept 1, 98
--------------------------------------------------------------------------------
Terminating Yes
--------------------------------------------------------------------------------
Originating {***}
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Number of Characters
--------------------------------------------------------------------------------
Before 10/98 100
--------------------------------------------------------------------------------
After 10/98 TBD
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Ways to Send a Message:
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
--------------------------------------------------------------------------------
SPCS Web Site Message Center Via SPCS Website.
--------------------------------------------------------------------------------
E-mail Via E-mail, using subscriber's MIN as
the address.
--------------------------------------------------------------------------------
Messaging Software TAP based messaging software.
--------------------------------------------------------------------------------
Operator Dispatch TBD
--------------------------------------------------------------------------------
Mobile Originated {***}
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Handsets Capable All
--------------------------------------------------------------------------------
***Confidential portions omitted and filed separately with the Commission.
<PAGE>
--------------------------------------------------------------------------------
FEATURE/PRODUCT/SERVICE DESCRIPTION
--------------------------------------------------------------------------------
Pricing:
--------------------------------------------------------------------------------
Numeric Messaging Free
--------------------------------------------------------------------------------
Text Messaging No charge before 10/98. MRC
thereafter.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Prepaid:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Platform Brite
--------------------------------------------------------------------------------
Methods of Remittance
--------------------------------------------------------------------------------
Prepaid Calling Card
--------------------------------------------------------------------------------
Prepaid Replenishment Card $30, $50, $100 increments.
--------------------------------------------------------------------------------
SPCS Prepaid Wireless Phone
Card $25 denominations.
--------------------------------------------------------------------------------
Major Credit Card Dial *PAY from handset.
--------------------------------------------------------------------------------
ACE (America's Cash Express) Account credited within 2 hours.
--------------------------------------------------------------------------------
Credit Check No
--------------------------------------------------------------------------------
Deposit No
--------------------------------------------------------------------------------
Pricing Plans PLAN 1: No MRC, $0.69/min, $0.25 extra
for LD. PLAN 2: $19.95 MRC, 20 incl.
min., $0.59/min, $0.25 extra for LD.
--------------------------------------------------------------------------------
Customer Care Access 24x7 dedicated.
--------------------------------------------------------------------------------
Reconnection/Reactivation Fee 45 days and 90 days.
--------------------------------------------------------------------------------
Roaming/Traveling Availability Traveling only, manual roaming only.
--------------------------------------------------------------------------------
Calling Features:
--------------------------------------------------------------------------------
Voicemail
--------------------------------------------------------------------------------
Caller ID
--------------------------------------------------------------------------------
Call Waiting
--------------------------------------------------------------------------------
Call Forwarding
--------------------------------------------------------------------------------
First Incoming Minute Free
--------------------------------------------------------------------------------
Current Balance Notification
--------------------------------------------------------------------------------
Low Balance Warnings
--------------------------------------------------------------------------------
MRC Deduction Warnings
--------------------------------------------------------------------------------
<PAGE>
International Calling Capability
--------------------------------------------------------------------------------
911 Access
--------------------------------------------------------------------------------
Directory Assistance Availability
--------------------------------------------------------------------------------
Operator Services Availability
--------------------------------------------------------------------------------
Local Numeric Paging
--------------------------------------------------------------------------------
Local Alpha Paging
--------------------------------------------------------------------------------
Equipment Replacement
--------------------------------------------------------------------------------
Monthly Usage Statement
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
OTHER:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Handset Replacement Insurance Optional.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Direct Fulfillment Overnight delivery of handset.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
EXHIBIT 4.4
SPRINT PCS PRICING PLANS FOR REGIONAL OR NATIONAL OFFERING
1. CONSUMER SEGMENT
1.1 REQUIRED SPRINT PCS SERVICE PLANS
As of May 1998, national consumer service plans that Sprint PCS markets are
required to offer customers include:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
MONTHLY SERVICE CHARGE $16.99 $29.99 $49.99 $69.99 $99.99
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Included monthly minutes you can use
anytime day or night(1) 10-30 100-180 250-350 500-600 1,000
---------------------------------------------------------------------------------------------------------------
Additional Minutes(2) $0.25-0.50 $0.25-0.40 $0.20-0.40 $0.15-0.35 $0.15-0.30
---------------------------------------------------------------------------------------------------------------
STANDARD FEATURES
---------------------------------------------------------------------------------------------------------------
Caller ID
Call Waiting
Three-Way Calling Included
---------------------------------------------------------------------------------------------------------------
Voicemail $4.99 Included
---------------------------------------------------------------------------------------------------------------
First incoming minute free N/A Included
---------------------------------------------------------------------------------------------------------------
OPTIONAL FEATURES
---------------------------------------------------------------------------------------------------------------
Off-Peak Option N/A $4.99
---------------------------------------------------------------------------------------------------------------
Sprint PCS Home Rate USA-SM- N/A $4.99 Included
---------------------------------------------------------------------------------------------------------------
Sprint PCS Toll-Free USA-SM- N/A $19.99 $9.99
---------------------------------------------------------------------------------------------------------------
Roadside Rescue offered by Sprint PCS $2.99
---------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: Business customers may subscribe to consumer price plans. (1)Included
monthly minutes vary by market, and primarily follow the ranges set forth
above. (2)Flat rate pricing for additional minutes varies by market, and
primarily follow the ranges set forth above.
1.2 OPTIONAL SERVICE PLAN (OFF SHEET - NOT PLACED ON COLLATERAL)
As of May 1998, national consumer service plans that Sprint PCS markets have the
option of offering customers include:
---------------------------------------------------------------------
MONTHLY SERVICE CHARGE $149.99
---------------------------------------------------------------------
Included monthly minutes you can use anytime day
or night 1,500
---------------------------------------------------------------------
Additional minutes(3) $0.15-0.20
---------------------------------------------------------------------
STANDARD FEATURES
---------------------------------------------------------------------
Caller ID
Call Waiting
Three-Way Calling Included
---------------------------------------------------------------------
Voicemail Included
---------------------------------------------------------------------
<PAGE>
First incoming minute free Included
---------------------------------------------------------------------
OPTIONAL FEATURES
---------------------------------------------------------------------
Off-Peak Option $4.99
---------------------------------------------------------------------
Sprint PCS Home Rate USA-SM- Included
---------------------------------------------------------------------
Sprint PCS Toll-Free USA-SM- $9.99
---------------------------------------------------------------------
Roadside Rescue offered by Sprint PCS $2.99
---------------------------------------------------------------------
Notes: Business customers may subscribe to consumer price plans. (3)Flat rate
for additional minutes varies by market.
1.3 PREPAID SERVICE PLANS
Two service plans are currently available for Prepaid calling. They are:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
SPRINT PCS PREPAID CALLING PLAN #1 PLAN #2
---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Monthly Service Charge (MRC) n/a $19.95
---------------------------------------------------------------------------------------------------------------
Included monthly minutes you can use anytime day
or night n/a 20
---------------------------------------------------------------------------------------------------------------
Home Rate $0.69 $0.59
---------------------------------------------------------------------------------------------------------------
Travel Rate $0.69 $0.52
---------------------------------------------------------------------------------------------------------------
Long Distance $0.25 $0.25
---------------------------------------------------------------------------------------------------------------
STANDARD FEATURES
---------------------------------------------------------------------------------------------------------------
Caller ID
Call Waiting
Three-Way Calling
Call Forwarding (to any number that is not a
prepaid number)
Up-to-the-minute Balance Notification
Low Balance Warning Included Included
---------------------------------------------------------------------------------------------------------------
Voicemail Included Included
---------------------------------------------------------------------------------------------------------------
First incoming minute free Included Included
---------------------------------------------------------------------------------------------------------------
OPTIONAL FEATURES
---------------------------------------------------------------------------------------------------------------
Off-Peak Option n/a n/a
---------------------------------------------------------------------------------------------------------------
Sprint PCS Home Rate USA-SM- n/a n/a
---------------------------------------------------------------------------------------------------------------
Sprint PCS Toll-Free USA-SM- n/a n/a
---------------------------------------------------------------------------------------------------------------
Roadside Rescue offered by Sprint PCS $2.99 $2.99
---------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: Prepaid customers are not allowed access to automatic roaming.
PLAN DESCRIPTION: The Sprint PCS Prepaid Plan allows customers who are credit
challenged, budget conscious or culturally cash based a channel for receiving
Sprint PCS service by allowing them to prepay for service. This plan may also be
used for customers that refuse to authorize a credit check and for those wanting
to give free wireless calling as a gift. Customers who are not credit challenged
may voluntarily select the Prepaid Plan.
Prepaid customer can remit using the following methods of payment:
- ACE - America's Cash Express
To deposit cash into the prepaid account, visit the nearest ACE location
and pay with cash. The customer's account is automatically credited within
two hours. ACE has over 700 locations across the country (over 240 within
<PAGE>
the Sprint PCS network). For the nearest ACE location, customers can dial
*PAY from their handset and press 0 for an operator. Customers must have a
special cash replenishment ID number which can be obtained by calling *PAY
and pressing 0.
- Prepaid Calling Card
Sprint PCS offers two types of prepaid calling cards.
- Prepaid Replenishment Cards: To add money to a prepaid account,
replenishment prepaid cards can be purchased in $30, $50 and $100
increments.
- Sprint PCS Prepaid Wireless Phone Cards: available in $25 denominations,
are typically purchased as gifts for those who have a Sprint PCS phone,
but who may not have a prepaid account.
Replenishment and Gift cards can be purchased at Sprint PCS Centers,
Radio Shack stores and other participating third party locations (who
have signed a prepaid addendum to the sale contract). Prepaid cards may
be purchased using whatever payment methods the store permits. Prepaid
cards are non-refundable / non-transferable.
- Major Credit Card
To use a major credit card, caller presses *PAY from the Sprint PCS
handset, selects Option 3 and follows the instructions for replenishing
with a major credit card. This method can only be used if a credit check
was run when the account was activated and minimum credit requirements were
met. A $30 minimum and $100 maximum transaction per replenishment event, is
applicable.
In addition, prepaid customers are charged the following fees for reconnection
or reactivation:
- Reconnection Fee: $25 for Plan 1 accounts carrying a $0 balance for 45
days. Amount is added to prepaid account, customer must replenish enough to
cover this amount before using the service again.
- Reactivation Fee: $50 for all Prepaid Plans that carry a $0 balance for 90
days. After 90 days, the account is deactivated and the MIN is recycled.
Reactivations cannot guarantee the same number will be returned.
The Prepaid rate includes taxes which are blended into the price per minute. The
amount is deducted from the prepaid balance. The 3% Federal Excise Tax, which by
government regulations is not blended into the price per minute, is charged at
the point-of-sale.
No Minimum initial payment and no minimum replenishment amount required. The MRC
is deducted from the prepaid balance the first day of each month. Warning
messages alert the customer up to 3 days in advance before the MRC is deducted.
For automatically checking a prepaid balance, replenishment or contacting
customer care, customers dial *PAY (*729) from their prepaid handset (*PAGA
(*7242) for Spanish speaking customers). Prepaid does not have an age limit and
does not require a credit check or deposit.
1.4 FEATURE DEFINITIONS
- OFF-PEAK OPTION - Add up to 500 Off-peak minutes per month for one low
rate. Off-peak times are M-Th 8pm-6am, F 7pm-M 7am. (Cannot be combined
with Sprint PCS Toll-Free USA.)
- SPRINT PCS HOME RATE USA-SM- - All calls made from anywhere on the Sprint
PCS Network are free of roaming and travel charges. Pay only your local
airtime rate and applicable long-distance.
- SPRINT PCS TOLL-FREE USA-SM- - Your calls to anywhere in the U.S., Puerto
<PAGE>
Rico and US Virgin Islands from anywhere on the Sprint PCS Network are free
of long-distance charges up to 1,000 minutes per month. Normal airtime
charges apply.
- SPRINT PCS LONG DISTANCE - Calls to domestic locations outside your Sprint
PCS Local Calling Area (LCA) are charge long-distance rates in addition to
airtime - 15 cents per minute.
- CALL FORWARDING - Have calls to your Sprint PCS Phone forwarded to another
number - 10 cents per minute.
- TRAVELING - Make and receive calls in any city in the Sprint PCS Network
outside your Home Service Area (includes domestic long-distance) - 50 cents
per minute.
- ROAMING - Make and receive calls while off the Sprint PCS Network - 69
cents per minute, plus applicable long-distance charges. (Most areas
require a dual-band Sprint PCS Phone.)
- DIRECTORY ASSISTANCE - Provides fast access to telephone numbers, will even
connect your call for you - 75 cents per call plus applicable airtime and
long distance, up to four number requests per call.
- OPERATOR SERVICES - Dial 0 and a Sprint PCS operator will help you place
calls or arrange alternate billing. Normal airtime charges and an operator
services surcharge apply.
- EMERGENCY SERVICES - Report emergencies to 911 at no charge from any
Sprint PCS Service Area.
- EQUIPMENT INSURANCE - Protect your Sprint PCS Phone and related accessories
from loss, theft and damage -- $3.25 per month.
- ROADSIDE ASSISTANCE - Roadside Rescue is a new service Sprint PCS is
offering to all customers. This service provides 24 hour, 7 days a week
emergency road service anywhere in the U.S. (Including Alaska and Hawaii)
and Canada. The MRC (monthly charge) is $2.99.
Promotional offer of 3 months free for customers enrolling between
4/27/-7/31. Customers receive Roadside Rescue Services by Dialing #ROAD
from their Sprint PCS phone when on the Sprint PCS network, dialing
888-878-5825 from any working phone when outside the Sprint PCS network, or
while roaming on a Sprint PCS roaming partner network the customer may dial
888-878-5825 from their Sprint PCS dual band phone.
1.5 CONSUMER PROMOTIONS
<TABLE>
<CAPTION>
COMBINING WITH OTHER
PROMOTION OFFER SPECIFICS OFFER DATES PROMOTIONS
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SUMMER PROMOTION FREE NIGHTS Customers will receive 500 4/27/98-8/30/98 HOME RATE USA: $4.99 for
& WEEKENDS free nights and weekends plans $29.99, $49.99 and
non-carry over minutes if $69.99.
they activate on a $49.99, Included in the $99.99
$69.99, $99,99 plans. plan.
TOLL-FREE USA: Can not be
combined with Free Nights
& Weekends.
WEEKEND/OFF-PEAK: Market
specific weekend/off peak
minutes can also be
purchased.
Can be offered with:
- Add-a-Phone (for
$69.99 and $99.99
plans)
- $50 Nationwide Grand
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Opening Promotion
- Business pricing
(Month to Month and
1-2 year Individual
Term Service
Agreements)
---------------------------------------------------------------------------------------------------------------
$50 SPRINT SAVINGS CHECKS $50 in Sprint PCS Gift This promotion will be Can be offered with:
PROMOTION Checks (a booklet of five offered from May 18th - Free Nights and
$10 checks made out to through June 14th. Weekends
Sprint PCS) will be given
to any customer who MARKETS: All markets - Business Pricing on a
except the reactive basis.
activates any SONY* New York market. Cox markets will
handset in a Sprint PCS also participate, but will
Retail center or through run it from June 8th, 1998
Telesales. These checks through July 15th, 1998.
can be used by the Washington DC/Baltimore
customer to purchase a will also participate in
second handset or this promotion, but will
accessories in the store run it from June 1st
or as payment towards through June 28th.
their service.
*RECONDITIONED SONY PHONES CHANNELS:
ARE NOT ELIGIBLE FOR THIS - Sprint PCS Stores
PROMOTION. - Telesales
- Business to
Business on a
reactive basis
only.
---------------------------------------------------------------------------------------------------------------
</TABLE>
1.6 BILLING Q&A
Answers to frequently asked billing questions apply to both consumer and
business customers.
- There are no activation or separate interconnect fees.
- Unused plan minutes are not carried forward to the next month.
- Calls are billed from the time you press the TALK key until you press
the END key. You are not charged for unanswered calls or busy signals.
- Calls are billed in 60-second increments with a one minute minimum.
- You are not charged when callers leave a voicemail message.
- Normal airtime charges apply when you call Sprint PCS Voicemail from
your Sprint PCS phone.
2. BUSINESS SEGMENT
2.1 REQUIRED SPRINT PCS FLEXIBLE BUSINESS PLANS
As of May 1998, national business service plans that Sprint PCS markets are
required to offer customers include:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
MONTHLY SERVICE CHARGE $13.99 $29.99 $49.99 $69.99 $99.99
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Included monthly minutes you can use -0- 100-195 250-380 500-660 1,060
anytime day or night(4)
---------------------------------------------------------------------------------------------------------------
Additional Minutes(5) $0.25-0.50 $0.25-0.40 $0.20-0.40 $0.15-0.35 $0.10-0.30
---------------------------------------------------------------------------------------------------------------
STANDARD FEATURES
---------------------------------------------------------------------------------------------------------------
Caller ID Included
Call Waiting
Three-Way Calling
Voicemail
First incoming minute free
---------------------------------------------------------------------------------------------------------------
OPTIONAL FEATURES
---------------------------------------------------------------------------------------------------------------
Off-Peak Option $4.99
---------------------------------------------------------------------------------------------------------------
Sprint PCS Home Rate USA-SM- $4.99(6)
---------------------------------------------------------------------------------------------------------------
Sprint PCS Toll-Free USA-SM- $9.99
---------------------------------------------------------------------------------------------------------------
Roadside Rescue offered by Sprint PCS $2.99
</TABLE>
<PAGE>
--------------------------------------------------------------------------------
Notes: (4)Included monthly minutes vary by market, and primarily follow the
ranges set forth above. (5)Flat rate pricing for additional minutes varies by
market, and primarily follow the ranges set forth above. (6)Current business
collateral shows Home Rate USA as a feature that may be added for an additional
$4.99, however, Sprint PCS is currently running a promotion that bundles this
feature with all Sprint PCS Flexible Business Plans at no additional cost over
the stated MRC.
2.2 OPTIONAL OFF SHEET SERVICE PLAN (NOT PLACED ON COLLATERAL)
As of May 1998, national business service plans that Sprint PCS markets have the
option of offering customers include:
--------------------------------------------------------------------
MONTHLY SERVICE CHARGE $149.99
--------------------------------------------------------------------
Included monthly minutes you can use anytime day
or night 1,560
--------------------------------------------------------------------
Additional Minutes $0.15-0.20
--------------------------------------------------------------------
STANDARD FEATURES
--------------------------------------------------------------------
Caller ID
Call Waiting
Three-Way Calling
Voicemail
First incoming minute free Included
--------------------------------------------------------------------
OPTIONAL FEATURES
--------------------------------------------------------------------
Off-Peak Option $4.99
--------------------------------------------------------------------
Sprint PCS Home Rate USA-SM- Included
--------------------------------------------------------------------
Sprint PCS Toll-Free USA-SM- $9.99
--------------------------------------------------------------------
Roadside Rescue offered by Sprint PCS $2.99
--------------------------------------------------------------------
Notes: Business customers may subscribe to consumer price plans.
2.3 FEATURE DEFINITIONS
- OFF-PEAK OPTION - Add up to 500 Off-peak minutes per month for one low
rate. Off-peak times are M-Th 8pm-7am, F 7pm-M 7am.
- SPRINT PCS HOME RATE USA-SM- - All calls made from anywhere on the Sprint
PCS Network are free of roaming and travel charges. Pay only your local
airtime rate and applicable long-distance.
- SPRINT PCS TOLL-FREE USA-SM- - Your calls to anywhere in the U.S., Puerto
Rico and US Virgin Islands from anywhere on the Sprint PCS Network are free
of long-distance charges up to 1,000 minutes per month. Normal airtime
charges apply. (Long distance calls made using Off-Peak Option minutes will
be charged $0.10 per minute.)
- SPRINT PCS LONG DISTANCE - Calls to domestic locations outside your Sprint
PCS Local Calling Area (LCA) are charge long-distance rates in addition to
airtime - 15 cents per minute.
<PAGE>
- CALL FORWARDING - Have calls to your Sprint PCS Phone forwarded to another
number - 10 cents per minute.
- TRAVELING - Make and receive calls in any city in the Sprint PCS Network
outside your Home Service Area (includes domestic long-distance) - 50 cents
per minute.
- ROAMING - Make and receive calls while off the Sprint PCS Network - 69
cents per minute, plus applicable long-distance charges. (Most areas
require a dual-band Sprint PCS Phone.)
- DIRECTORY ASSISTANCE - Provides fast access to telephone numbers, will even
connect your call for you - 75 cents per call plus applicable airtime and
long distance, up to four number requests per call.
- OPERATOR SERVICES - Dial 0 and a Sprint PCS operator will help you place
calls or arrange alternate billing. Normal airtime charges and an operator
services surcharge apply.
- EMERGENCY SERVICES - Report emergencies to 911 at no charge from any
Sprint PCS Service Area.
- EQUIPMENT INSURANCE - Protect your Sprint PCS Phone and related accessories
from loss, theft and damage -- $3.25 per month.
2.4 BUSINESS TO BUSINESS PROMOTIONS
<TABLE>
<CAPTION>
PROMOTIONS DETAILS OFFER BEGINS/ENDS
---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Association Offer 5% discount on selected price plans for targeted Associations.
Pricing Starts June 1 for selling and June 8 for activating. 6/1/98-ONGOING
---------------------------------------------------------------------------------------------------------------
12/24 Month Zero interest on 12 or 24 month financing depending upon one or two year
Financing contract term. 6/3/98-ONGOING
---------------------------------------------------------------------------------------------------------------
Grand Opening $50.00 Sprint PCS gift checks. Requires purchase and activation of Sony
Promotion phone through Sprint PCS Centers. 5/18/98-6/14/98
---------------------------------------------------------------------------------------------------------------
1Q98 Business Home Rate USA for no charge, Toll-Free USA for $9.99 with any Flexible Extended -
Promotion Business service plan 7/14/98
---------------------------------------------------------------------------------------------------------------
Samsung $50 mail-in phone rebate Extended -
Phone MAY BE NOT COMBINED WITH TERM SERVICE AGREEMENT PHONE DISCOUNT FOR 7/19/98
Rebate MULTIPLE HANDSETS (2 OR MORE) PURCHASED AT THE TIME OF SALE.
---------------------------------------------------------------------------------------------------------------
Enhanced Cell Customers may trade in their working cellular phone for a $50.00 Service 5/22/98
Phone Trade In Credit. Available only on the three high end bundled plans. Ongoing
---------------------------------------------------------------------------------------------------------------
Employee Re-launched EAP to include equipment discounts for signing a 4/1/98
Advantage 1 or 2 year individual term service agreement. Other changes Ongoing
Plan include removing the zero minute MRC option. Please see
sales guide for details.
Credit classes A, B, C, D, E, and G are eligible for this plan.
30-day return policy will apply to subscribers that activate
service on EAP.
---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
PHONE
DISCOUNTS DETAILS OFFER BEGINS/ENDS
---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
$50 phone Sign a one-year Flexible Business Plan term service 1/12/98
discount agreement and receive a $50 phone discount (equipment credit Ongoing
applied on invoice against cost of phone)
---------------------------------------------------------------------------------------------------------------
$100 phone Sign a two-year Flexible Business Plan term service 1/12/98
discount agreement and receive a $100 phone discount (equipment credit applied Ongoing
on invoice against cost of phone)
---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
3. Sprint PCS Phone Pricing Information.
SONY CM- SONY CM- SAMSUNG SAMSUNG SONY CM- SONY CM- QUALCOMM
PHONES S1101SPR D600S SCH-1000 SCH-1900 Z100 Q PHONE B1201SPR QCP-2700
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RETAIL PRICE $149 $199 $149 $179 $199 $499/$549 Exec. $199 $199
---------------------------------------------------------------------------------------------------------------
SAMSUNG N
REBATES $50 REBATE
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------
1/1/98 - 7/19/98
REBATE OFFER DATES N
---------------------------------------------------------------------------------------------------------------
REBATE - Rebate vendor will send amount to customers approximately 8-10 weeks
INFORMATION after activation.
- CUSTOMERS MUST MAIL THE FOLLOWING THREE ITEMS IN ORDER TO RECEIVE THE
REBATE:
- Rebate form
- Original receipt
- Entire UPC/ESN bar code from the Sprint PCS phone box.
RECONDITIONED PHONES ARE NOT ELIGIBLE FOR REBATES|||
---------------------------------------------------------------------------------------------------------------
PHONE PRICE
INCLUDING $149 $199 $99 $129 $199 $499/$549 EXEC. $199 $199
REBATE
---------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 6.4
SPRINT PCS COMMUNICATIONS POLICIES
When the news media calls or a crisis occurs, swift, proactive and accurate
communications with affected audiences - the news media, customers,
communities, the financial community, law enforcement officials and public
safety officials - is critical. The messages we send to key stakeholders must
be clear, concise and consistent. Therefore, communication is centralized in
Public Relations.
Since Sprint PCS Managers will operate under the Sprint PCS brand, their
actions and communications will appear to stakeholders to be those of Sprint
PCS. As a result, it is critical that the Sprint PCS Communications Policies
are followed by all Sprint PCS and Manager employees to insure that the Sprint
PCS message is consistently reported and information distribution is fully
coordinated among all affected internal and external parties.
NEWS MEDIA INQUIRIES
Sprint PCS's media relations program plays a key role in the public
positioning of Sprint PCS. The news media shape public perception and are also
an avenue for educating our customers and key stakeholders. Sprint PCS
Corporate PR will serve as the coordinating point for media relations
activities and will provide support materials, training and documents to
Managers and other entities.
Sprint PCS Managers must coordinate all media relations activities with Sprint
PCS Corporate Public Relations. Corporate PR will provide Managers with
template news releases, key messages and Q&A documents, media kits and other
materials to assist in handling media inquiries and proactive media
positioning. Corporate PR will also provide coordinated media relations
programs that will be implemented by all Sprint PCS entities on a local,
regional and national level. Manager PR managers should report all media
contacts of consequence to the business as a whole to Corporate PR.
All news media calls and questions regardless of the situation should be
forwarded to the Sprint PCS Public Relations manager or the Sprint PCS
Corporate Public Relations team in Kansas City. No Sprint PCS or Manager
employee should ever answer questions from the media unless directed to do so
by the Manager PR or Sprint PCS Corporate PR.
CRISIS COMMUNICATIONS
Sprint PCS and its Managers must be prepared for any potential crisis
situation company-wide. While it is difficult to predict/anticipate every
possible scenario, below is a short list of possible situations that may
affect Sprint PCS and its Managers:
- FIELD/TOWER/E&O/NOCC ISSUES:
- any local network or system failure, earthquake, hurricane, tornado,
lightning, flood, terrorist activity, fire, crime/burglary,
union/labor relations, Sprint PCS and non-Sprint PCS employee
accident/injury.
- SPRINT PCS CENTER/SPRINT PCS CUSTOMER CARE CENTER/RETAIL PARTNER ISSUES:
- crime/robbery, fire, racial discrimination, harassment, Sprint
PCS and non-Sprint PCS employee accident/injury.
- SPRINT PCS CORPORATE/SPRINT PCS PARTNER/SPRINT PCS MANAGER/SPRINT PCS VENDOR
ISSUES:
- any national network or system failure, poor financial performance,
departure of key executive, legal action against Sprint PCS,
union/labor relations, use of Sprint PCS
<PAGE>
equipment/service for illegal activity, escalation of any of the issues
from the lists above.
Any and all crisis situations at a Manager must immediately be reported to the
Sprint PCS Corporate Public Relations department. The Corporate Public
Relations staff will be available by phone or pager to respond to a crisis 24
hours a day, seven days a week, 365 days a year.
Conversely, when a crisis occurs in another Sprint PCS operation, the
Corporate Public Relations staff will immediately notify the Manager
organization to coordinate response and action.
Corporate and Manager Public Relations will work together to prepare an
official response - alert, news, release, Q&A, etc. - and distribute
externally and internally as needed. Depending on the type of crisis,
Corporate or Manager PR will be identified to act as the spokesperson on the
issue unless a senior officer is needed to participate. The designated
spokesperson will be a senior official the company. Corporate or Manager
Public Relations will answer all media calls.
SPRINT PCS CORPORATE PUBLIC RELATIONS DEPARTMENT:
(listed in order of who to contact first)
- TOM MURPHY, DIRECTOR OF MEDIA RELATIONS AND ANALYST
COMMUNICATIONS: phone, 816/559-6703; pager, 888/347-1660; PCS,
913/226-0242; home, 913/685-9869
- ED MATTIX, CHIEF PUBLIC RELATIONS OFFICER: phone, 816/559-6700;
pager, 800/495-6918; PCS, 816/210-6700; home, 913/962-5675
- ASHLEY PINDELL, MANAGER, MEDIA AND ANALYST RELATIONS: phone,
816/559-6702; pager, 888/661-4589; PCS, 816/210-5789; home,
913/262-4587
INTERNAL COMMUNICATIONS
If desired by the Manager, Sprint PCS Corporate PR will provide counsel and
assistance in developing and managing an internal communications program. This
assistance will include: print newsletter templates, design specifications for
approximately displaying the Sprint PCS brand, fundamentals of selecting
newsletter content, tips for moving the newsletter through the production and
approval process, and an overview of legal considerations.
Corporate PR also can provide counsel on establishing internal electronic
communications programs, including developing an intranet to offer electronic
communications capabilities to your staff, as well as providing guidelines on
using e-mail for internal communications.
<PAGE>
EXHIBIT 7.2
SPRINT PCS TECHNICAL PROGRAM REQUIREMENTS
The development of a seamless national wireless service network constructed
in conformance with the standards and requirements of Sprint PCS ("Technical
Standards") is a fundamental business objective of Sprint PCS. Accordingly,
Manager will construct and operate a network that will provide seamless
interoperability throughout the Sprint PCS Network and uniform and consistent
quality of product and service offerings. The Spring PCS Technical Standards are
defined and detailed in certain design, construction and operational standards,
specifications and requirements adopted by Sprint PCS (the "Standards
Documents") as set forth in the following documents:
1. Sprint Telecommunications Venture Nationwide PCS Network CDMA RF
Design Specifications. (Hereinafter referred to as "Rev 8")
2. Sprint Spectrum Engineering & Operations standards. (Hereinafter
referred to as "SSEO")
3. LATA Switching System Generic Requirements (from Bellcore).
(Hereinafter referred to as "LSSGR")
4. Sprint PCS Standard Construction Documents for Cell Sites-Books 1
to 4 (dated June, 1997). (Hereinafter referred to as "Cell Site
Construction Documents")
5. Switch Building-Switch Center Facilities Guidelines (Dated
December 31, 1996). (Hereinafter referred to as "Switch Site
Construction Documents")
6. Approved Infrastructure Equipment and Vendor List
7. Approved Subscriber Equipment and Vendor List
In addition to complying with the Technical Standards for design, construction
and operation of the network, including but not limited to transport,
intelligent network, switching hardware/software, operational support systems
and signaling protocols, Sprint PCS and Manager agree to comply with industry,
and regulatory standards and requirements for design, operation and performance
of the network, the approval and use of subscriber equipment and microwave
relocation. Furthermore, Manager must coordinate with Sprint PCS on all
activities related to FCC and FAA requirements and compliance, including but not
limited to items such as tower height, tower lighting, and tower monitoring.
Manager must comply with procedures and processes established by Sprint PCS with
respect to FCC and FAA requirements and compliance.
<PAGE>
EXHIBIT 7.2
SPRINT PCS TECHNICAL PROGRAM REQUIREMENTS
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
STANDARD/ DEFINITION/ INITIAL RECURRING
MINIMUM REQUIREMENT SOURCE DOCUMENT CERTIFICATION VERIFICATION
--------------------------------------------------------------------------------------------------------------
(Note #1) (Note #1)
<S> <C> <C> <C>
RF-ENGINEERING:
1 Area Availability - {***}% Rev. 8 (Note #2) X X
2 Grade of Service/Sector Rev. 8 X X
Blocking rate {***}% bh
(Using the Grade of Service traffic
model, the ratio of blocked call
attempts to total call attempts
during a typical Busy Hour (BH) on
a per sector basis shall be less
than {***}% (Erlang B or approved
alternate model)) Note #4
3 FER LESS THAN{***}% (within area of {***}% Rev. 8 X X
availability)
4 Dropped Call LESS THAN{***}% Rev. 8 X X
(The percentage of Dropped Calls
will be {***}% or less initially
measured through call sampling during
Optimization and post-launch as
measured through Service Measurement
captured statistics. In the initial
Drive Test Optimization process, the
minimum number of effective calls
shall be {***} or greater.) Note #4
5 Total Call Origination/Termination Rev. 8 X X
Failures LESS THAN{***
(Call origination and termination
attempts are defined as being successful
when a "probe Acknowledgement" message
is received by the subscriber unit as
logged on the RF Data Collection Unit.
Call Origination/Termination failures are
generated when the Probe sequence fails to
reach the BTS or when a "Probe Acknowledgement"
message is received by the subscriber unit as
logged on the RF Data Collection Unit.)
Note #4
6 Loading/Pole Pt. Rev. 8 X X
Objective Range - {***}%
7 Coverage per morphology Rev. 8 X X
(Bldg. penetration loss)
- Dense Urban
- Urban
- Rural
- Highway
8 Alternative In-Building Solutions SSEO 3.015.13.004, X X
SSEO 3.014.06.001 &
SSEO 3.003.06.004
9 Additional RF Solutions SSEO 2.003.06.002 &
- Second Carrier Design/Implementation SSEO 3.003.13.007
- Six Sector Deployment SSEO 3.003.13.007 &
SSEO 3.003.13.005
10 Interference SSEO 3.003.06.003 X X
11 BTS/CBSC Maintenance Procedures SSEO 2.003.03.004 & X X
BTS/CBSC Uptime - {***}% SSEO 2.003.03.005
</TABLE>
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------
STANDARD/ DEFINITION/ INITIAL RECURRING
MINIMUM REQUIREMENT SOURCE DOCUMENT CERTIFICATION VERIFICATION
--------------------------------------------------------------------------------------------------------------------
(Note #1) (Note #1)
<S> <C> <C> <C>
SWITCH-ENGINEERING:
-------------------
1 Switch Uptime - {***}% Bellcore's LATA X X
Switching System
Generic Req.
(LSSGR)
2 Planned / unplanned Down-time LSSGR (Note #3) X X
Planned downtime for entire switching
system is unacceptable. New software
loads or system reconfigurations should
be completed without complete
interruption of service.
3 Tandem traffic = P.005 GOS Neal Wilkinson/Erlang B X X
End Office = P.01 GOS tables and LSSGR
4 Switch maintenance Procedures X
- Lucent SSEO 2.002.03.008
- Nortel SSEO 2.002.03.007
- Network Operations SSEO 2.000.03.001
- Motorola Per SSEO when available
5 Back UP Procedures: X
- SPCS Nortel MSC SSEO 2.002.03.009
- SPCS Lucent MCS SSEO 2.002.03.0010
- SPCS Motorola MCS Per SSEO when available
- SPCS Office Lucent MSC SSEO 2.002.09.002
- SPCS Office Nortel MSC SSEO 2.002.09.003
- SPCS Office Motorola MCS Per SSEO when available
6 Recommended Spares SPCS Guidelines X X
7 Emergency Procedures: X X
- Contact List Updated when implemented
- General Disaster Recovery SSEO 2.000.04.015
- Emerg. Recovery Procd. Nortel SSEO 2.002.04.002
- Emerg. Recovery Procd. Lucent SSEO 2.002.04.003
- Emerg. Recovery Procd. Motorola Per SSEO when available
- OSSC: Outage/Event Notify. SSEO 2.000.04.006
8 Alarms: X X
- NOCC - Lucent Alarms SSEO 2.000.10.001
- NOCC - Nortel Alarms SSEO 2.000.10.003
- NOCC - Motorola alarms Per SSEO when available
9 Security: X X
- Elec. Surveillance SSEO 2.000.05.003
- Enhanced 911 SSEO 3.000.09.001
- Network Security SSEO 2.000.05.004
10 Translations: X X
- Lucent Standards SSEO 0.002.09.001
- Nortel Standards SSEO 0.002.09.002
- Switch recorded Announcement SSEO 0.002.09.003
- Motorola Per SSEO when available
11 Local Number Portability SSEO 1.027.07.007 X X
</TABLE>
NOTE: Sprint PCS may establish a two switch supplier operating system and
reserves the right to require the change-out of any current or future switch
supplier (ie Motorola) at expense of affiliate for affiliates' markets.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------
STANDARD/ DEFINITION/ INITIAL RECURRING
MINIMUM REQUIREMENT SOURCE DOCUMENT CERTIFICATION VERIFICATION
------------------------------------------------------------------------------------------------------------
(Note #1) (Note #1)
<S> <C> <C> <C>
TRANSPORT-ENGINEERING:
----------------------
1 Transmission: SSEO 3.000.12.001 X X
- Loss= {***} -
- ERL= {***} -
- Backhaul Delay= {***} -
- Differential delay= {***} -
- Line Coding= B8ZS -
2 Microwave: SSEO 3.012.09.001 X X
- Availability= 99.999%/link
- Protection (hot stand-by) for links of
5 or more cell sites
3 ATM Requirements SSEO 2.016.06.001 X X
4 Digital Synchronization: SSEO 3.015.09.001 X X
- Each switch site will have GPS/BITS
system installed
ELECTRICAL ENGINEERING:
-----------------------
1 Backup Power:
- Cell Sites X X
- fixed generator-aviation lights SSEO 2.004.03.001
- 4 hrs minimum battery SSEO 3.004.12.001
- Mobile generators SSEO 3.004.12.001
- Switch Sites
- fixed generator for total MSC load
- 2 hrs minimum battery
2 Switch DC Power Plant SSEO 3.004.06.002 X X
3 Grounding X X
- Cell Sites SSEO 3.018.02.001 &
SSEO 3.018.02.002
- Switch Sites SSEO 3.018.02.003
4 Surge Protection (TVSS) X X
- Cell Sites SSEO 2.003.003.001
- Switch Sites SSEO 2.002.03.005
5 Preventive Maintenance X X
- Cell Sites SSEO 2.004.03.002 &
SSEO 2.018.03.002
- Switch Sites SSEO 2.004.03.003 &
SSEO 2.018.03.001
INTELLIGENT NETWORK (IN) - ENGINEERING:
--------------------------------------
1 SS7 Interconnection X X
- Switch Sites SSEO 3.008.06.001
SSEO 3.008.10.001
SSEO 3.008.10.002
- Translations SSEO 0.008.09.001
2 IN Deployment SSEO 3.000.06.006 X X
3 Performance for SS-7 and IN Standards Committee X X
Platforms (SCP, SSP, SN) T1-Telecommunications
4 Performance for AIN, Voice Mail, IWF, Network Operations Forum X X
Short message Service, Data SSEO 3.017.12.007,
SSEO 3.030.12.009,
SSEO 3.030.12.001,
SSEO 3.030.12.005,
SSEO 3.030.12.007 &
SSEO 3.030.12.010
</TABLE>
***Confidential portions omitted and filed separately with the Commission.
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
STANDARD/ DEFINITION/ INITIAL RECURRING
MINIMUM REQUIREMENT SOURCE DOCUMENT CERTIFICATION VERIFICATION
----------------------------------------------------------------------------------------------------------------------
(Note #1) (Note #1)
<S> <C> <C> <C>
OPERATIONAL SUPPORT SYSTEMS:
----------------------------
1 Operator Services Performances Same as Sprint PCS X X
- Answer time, etc. Internal Standards
2 Directory Assistance Same as Sprint PCS X X
- Answer time, etc. Internal Standards
SUBSCRIBER EQUIPMENT:
---------------------
1 Meet or exceed tests and
specifications:
- Handsets - FCC Certification
- CMDA Dev. Group Cert. (CDG)
- Vendor Design Verify (DVT)
- Sprint PCS Design Verify Test
- CDG Stage 2
- CDG Stage 3
- Vendor Qual. Verify Test
- Vendor Manuf. Test
- Vendor Accessory Test
- Sprint PCS Accessory test
- Sprint PCS User interface test
- Feature Testing Sprint PCS
- Vendor Software Assurance
- Sprint PCS field testing - CPE
tech. Planning and Dev. Group
MICROWAVE RELOCATION:
---------------------
1 Ensure protection for 2 GHz CFR47, Part 24.237; X X
Microwave Services by Prior coordination TIA Bulletin 10-F; and
Notification process (PCN) CFR47, Part 101.69
Through Part 101.81
2 No potential interference levels of TIA Technical Systems X X
PCS base or mobile stations into 2 GHz Bulletin 10-F
microwave incumbent user system
3 Predicted PCS-to-microwave CFR47, Part 101.69 X X
interference into GHz incumbent systems through Part 101.81
may require relocation of the incumbent to
new bands if no spectrum sharing potential
exists
4 Definitive microwave relocation SSEO 2.003.06.002 X X
agreements 30-60 days in advance of SSEO 2.012.10.001
Network Ready Dates
CONSTRUCTION STANDARDS:
-----------------------
- Cell Sites SSLP Standard Construction X X
Documents - Book 1-4
(dated June, 1997)
- Switch Building Building-Switch Center X X
Guidelines-Ground UP
Construction of Precast
Concrete Buildings (dated
December 31, 1996)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------
STANDARD/ DEFINITION/ INITIAL RECURRING
MINIMUM REQUIREMENT SOURCE DOCUMENT CERTIFICATION VERIFICATION
------------------------------------------------------------------------------------------------------------
(Note #1) (Note #1)
<S> <C> <C> <C>
NATIONAL OPERATIONS CONTROL CENTER (NOCC):
------------------------------------------
1 24x7 Fault Management Surveillance of Same as Sprint PCS X X
network elements, trunks, & Services. Internal Standards
Includes Switches, cells, AIN platforms,
SS7, IXC, LEC, OS, DA, 911 &
environmental conditions
2 24x7 Trouble Management for customer Same as Sprint PCS X X
delivered service troubles Internal Standards
3 FAA Compliance Same as Sprint PCS X X
Internal Standards
ROAMING:
--------
1 Network datafill procedures, Sprint SSEO 2.029.03.001, X X
PCS IS-41 implementation, manual roaming SSEO 3.029.12.001,
plan, inbound/outbound trouble reporting SSEO 2.029.04.002, &
procedures, etc. SSEO 2.029.04.001
</TABLE>
Note #1:
- Initial Certification - A two-phase procedure performed by Sprint PCS to
ensure the system is Network Ready
1. Review and Verify that system design and construction meets Sprint PCS's
technical standards and requirements
2. Successfully completes the Operational Acceptance Checklist (OPAC)
- Recurring Verification - A Sprint PCS OPAC checklist shall be completed
under methods and procedures adopted by Sprint PCS a minimum of every 6
months after Network Ready Date.
Note #2:
- Revision 8 - National PCS Network CDMA RF Design Specifications (Rev. 8).
Note #3:
- Lata Switching System Generic Requirements (BellCore).
Note #4:
- Standard definitions are more current and take precedence over definitions
in Rev. 8.
<PAGE>
EXHIBIT 4.1
SPRINT PCS NATIONAL OR REGIONAL DISTRIBUTION PROGRAM REQUIREMENTS
Sprint PCS recognizes that distribution of Sprint PCS Products and/or Services
may be made in the Service Area of Manager or markets of Sprint PCS through the
national and regional distribution programs of Sprint PCS ("National Programs")
as well as local distribution programs of Sprint PCS (each a "Local Distribution
Program"). (The National Distribution Programs and the Local Distribution
Programs are collectively referred to as the "Distribution Programs"). In
addition, Sprint PCS recognizes that it is in the interest of Sprint PCS and
Manager to establish a uniform approach to and treatment of the distribution of
the Sprint PCS Products and Services with the objective that each party shall
pay its applicable share of the costs incurred in connection with the
Distribution Programs.
Manager will be required to adhere to Sprint PCS's retail store guidelines.
These guidelines contain standards for determining retail store location, floor
plan, fixtures, etc.
A. MANAGER PARTICIPATION IN SPRINT PCS DISTRIBUTION PROGRAMS:
During the term of the Agreement, Manager must participate in each applicable
Sprint PCS Distribution Program as it may exist or be in effect from time to
time, including any amendment thereto. Manager will be entitled to compensation
and be obligated for any payments, commissions and costs of distribution in
accordance with the terms and conditions of each Distribution Program.
Each Distribution Program will: (a) be implemented only after Manager has been
given 15 days advance notice of its implementation and the terms and conditions
of such Distribution Program, (b) not discriminate, with respect to compensation
or otherwise, between Manager, Sprint PCS or any other entity that participates
in the Distribution Program and, (c) offer and promote products and services
designated by Sprint PCS as the Sprint PCS Products and Services of the Sprint
PCS Network in a uniform and consistent manner to the maximum extent allowable
under applicable law.
Manager agrees to refer each additional prospective distribution arrangement or
partner that may come to the attention of Manager to Sprint PCS for
consideration by Sprint PCS. Sprint PCS agrees to review, evaluate and attempt
to execute, using commercial reasonable standards, each additional prospective
distribution arrangement or partner referred to it by Manager.
B. COST SHARING AND AUDITING IN CONNECTION WITH THE DISTRIBUTION PROGRAMS
1. RECEIPT OF REVENUES AND PAYMENT OF COST OF SALE EXPENSES IN CONNECTION
WITH THE DISTRIBUTION PROGRAMS
For each handset activated on the Sprint PCS Network, the party on whose network
the subscriber activates the handset shall be obligated to pay or reimburse the
cost of sale expenses incurred or to be paid in connection with
<PAGE>
the distribution and/or sale of that handset and its related equipment less any
revenues realized by the other party in connection with the sale of the handset.
This obligation shall include but not be limited to, the following:
1. The amount of any handset subsidy.
2. The amount of any commission or cooperative marketing
obligations payable in connection with the distribution
and/or sale of the handset.
3. The carrying costs of the handset prior to sale including
but not limited to financing costs, inventory maintenance
and economic or other obsolescence costs of the handset as
determined by Sprint PCS.
4. Such other reasonable costs and expenses incurred in
connection with or pursuant to the distribution and/or sale
of the handset and related equipment and service.
2. ACCOUNTING AND SETTLEMENT OF REVENUES AND COST OF SALE CHARGES
AND EXPENSES
The revenues and costs of distribution and/or sale realized by one party with
respect to handsets distributed or sold by that party shall be reconciled
against the similar charges incurred by the other party no less frequently than
quarterly. The accounting and reporting of this reconciliation shall be under
the control of Sprint PCS. Sprint PCS may, in addition, adopt and implement
generally applicable formulas or processes for allocating on the basis of
handset activations, the applicable costs and subsidies through a periodic
reconciliation process.
C. HANDSET LOGISTICS AND DISTRIBUTION
Handsets will be distributed and received through the Sprint PCS handset
logistics and distribution system. The specific services and Manager
requirements of the handset logistics and distribution department are in the
process of being finalized. These services and Manager requirements will be
provided to Manager as soon as practical.
<PAGE>
THE RETAIL STORE GUIDELINES EXHIBIT IS CURRENTLY UNDER DEVELOPMENT.
<PAGE>
THE HANDSET LOGISTICS AND DISTRIBUTION REQUIREMENTS EXHIBIT
IS CURRENTLY UNDER DEVELOPMENT.
<PAGE>
EXHIBIT 4.2
SPRINT PCS NATIONAL ACCOUNTS PROGRAM REQUIREMENTS
Sprint PCS recognizes that sales to National Accounts may result in the
fulfillment of those sales in the Service Area of a Manager or market of Sprint
PCS. Sprint PCS further recognizes and acknowledges that it is in the interest
of Sprint PCS and Manager to establish a uniform approach to and treatment of
sales made to the accounts of Sprint PCS and its Managers with the objective of
implementing a well coordinated and productive program that will produce
subscribers within the large business market.
TARGET MARKET:
Sprint PCS has defined a separate National Account target market and program
(the "Sprint PCS National Accounts Program") for its existing markets and
Manager has agreed to participate in the Sprint PCS National Accounts Program.
The Federal government and its agencies are included within the Sprint PCS
National Accounts Program as are the controlled subsidiaries of parent National
Account target companies.
The National Account territory and program includes local sales (sold and
fulfilled in Manager Service Areas), export sales (sold in Manager Service Areas
and fulfilled in Sprint PCS markets), and import sales (sold in Sprint PCS
markets and fulfilled in Manager Service Areas).
An initial list of large national accounts based upon size, geographic scope and
decision making process has been generated by Sprint PCS for the entire US. This
list will be dynamic in nature allowing for accounts that do not meet all of the
criteria to be removed, and accounts that do meet the criteria to be added.
Sprint PCS will update and deliver the Sprint PCS National Accounts Program
target list to Manager initially and as changes occur on an ongoing basis.
MANPOWER AND RESPONSIBILITIES:
Sprint PCS will assess individual market area potential and will determine the
appropriate number of Sprint PCS National Account Managers (NAM) for the country
(including Sprint PCS markets and Manager Service Areas). NAMs will be assigned
sales territories by Sprint PCS, and are primarily responsible for calling on
potential customers at the national headquarters level. Sprint PCS will also
deploy National Account Executives (NAE) that will be responsible for national
account sales at a local level in Sprint PCS markets. In Manager Service Areas,
a Sprint PCS NAM will maintain headquarters, as well as nationwide sales
responsibilities for national accounts that are headquartered in the local
Manager Service Area. In addition, Manager will deploy NAEs responsible for
sales into the local operations of both national accounts headquartered in the
Manager Service Area and remote locations of accounts that are based in other
Sprint PCS markets or Manager Service Areas.
The Manager NAE will coordinate and report sales activities with the Sprint PCS
NAM that has headquarters account responsibilities. The Manager local sales
representatives and its NAEs will also follow the direction and strategy
<PAGE>
of the Sprint PCS NAM with respect to sales efforts into the local locations of
national accounts.
Sprint PCS NAMs are also responsible for implementing employee plans with the
respective national account decision-makers for the NAMs' assigned accounts.
Fulfillment and ordering will be completed through low cost acquisition sales
channels (i.e., telemarketing, company retail stores, etc.) for both Manager
Service Areas and Sprint PCS markets. A means of identifying and associating
these subscribers with the national account and channel in Manager Service Areas
will be developed by Sprint PCS for implementation in the Manager Service Area.
To the extent that project management and field-based sales and support is
required it will be co-located with the assigned Sprint PCS NAMs.
QUOTAS:
The Sprint PCS NAM(s) will be assigned an annual quota. A ramp-up period will be
provided during position start-up. The Sprint PCS NAM will be directly
responsible for direct corporate liability sales (direct company billing),
reimbursed employee sales, and employee sales programs. The option to utilize
telesales channels and Sprint PCS/Manager retail channels to sell and fulfill
orders will be available to the Sprint PCS NAM and the Manager NAE.
In Manager Service Areas, Manager will develop a national account quota for
Manager NAEs on an annual basis to be jointly reviewed and agreed upon by Sprint
PCS and Manager.
RATE PLANS:
Rate plan qualification for national account customers in any single Sprint PCS
market or Manager Service Area will be based on the {***} throughout all Manager
Service Areas and Sprint PCS markets combined (or such other pricing
arrangements as may be negotiated) subject to {***}
REVENUE FLOWS/CREDIT:
Revenue and unit credit will be attributed to the Sprint PCS market or Manager
Service Area {***}. Manager will report results to Sprint PCS on a monthly basis
in a form required by Sprint PCS. Sprint PCS will establish the form and
frequency of reports for the tracking and reporting of local export and import
sales.
The costs and allocations under this program shall be reconciled no less
frequently than quarterly. The accounting and reporting of this reconciliation
shall be under the control of Sprint PCS.
MODIFICATION:
Sprint PCS may amend or modify the Sprint PCS National Accounts Program in any
manner upon 30 days advance notice to Manager.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
ORDERING AND FULFILLMENT PROCESS:
Sprint PCS will use the Activation Process and Fulfillment Process described
below to take an order from a national account customer and divide (internally)
the Sprint PCS and Manager components of the order and fulfill accordingly
(i.e., unbundle the order to separate the equipment shipments and respective
billing). {***}
ACTIVATION PROCESS:
- EXPORT: Activation process to be accomplished by transmission of orders
into Sprint PCS call center in Ft. Worth or Sprint PCS retail stores. In
this situation, a NAM in the Manager's Service Area would send a customer's
order for service in a Sprint PCS market to Sprint PCS's Call Center for
activation.
- IMPORT: Activation per local process which could include local Manager
stores and/or the Sprint PCS call center in Ft. Worth. In this situation, a
NAM in a Sprint PCS market would forward orders for service in the
Manager's Service Area to the Manager's activation group.
- LOCAL: Activation per local process which could include local Manager
stores and/or through the Sprint PCS call centers.
FULFILLMENT PROCESS:
- EXPORT: Fulfillment of orders for service in Sprint PCS's markets would be
processed through Sprint PCS Worldwide Logistics.
- IMPORT/LOCAL: Fulfillment of orders for service in the Manager's Service
Areas would be handled out of local inventory or through national or
regional distribution centers.
Sprint PCS will provide for the national account representatives to have access
to either fulfillment process based on the specific needs related to the order.
INTEGRATION/TEAMWORK:
- National account sales and support staff will be located in the Manager's
offices and should participate in local training, staff meetings, and other
corporate-sponsored functions.
- NAMs or their representatives may participate in trade shows (when
applicable), emergency response teams, charitable programs, and other
community involvement activities.
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
- Manager's engineering (network planning) group will review and evaluate
input and requests from national account staff for network related
opportunities such as data application support, campus or in-building
systems, wireless PBX, cell site locations on account facilities, etc.
- Manager will communicate pertinent information to the Sprint PCS national
account group (new rate plans, network improvements, new features, etc.) by
including the respective individuals on appropriate distribution lists.
- National Accounts Program management has the option to approve or decline
Manager and Sprint PCS national account personnel's participation in local
sales incentives or contests. Similarly, Sprint PCS will be able to include
Manager and Sprint PCS national account personnel in any Sprint PCS
sponsored contest/incentive program that it chooses to implement throughout
the Sprint PCS national account organization.
FINANCE:
If either Party desires, the Parties shall establish a separate national account
cost center attributable to Manager's Service Areas.
OTHER:
- Subscriber documents and forms approved and implemented by Sprint PCS for
the National Accounts Program will be the standard authorized documents and
forms used by Manager (e.g., Sprint PCS National Account Term Agreement).
The national pricing terms and conditions of the National Accounts Program
shall, subject to applicable law, be as determined by Sprint PCS in its
sole discretion.
- The Manager will accept and activate orders sold in other Sprint PCS
markets without unnecessary duplication of administrative requirements
{***}.
- Sprint PCS will develop methods and procedures to provide transfer of
service between Manager Service Areas and Sprint PCS markets {***}. This
process has not yet been developed but will be addressed at a future time.
The methods and procedures, once created, may be modified or amended to
address number portability or other regulatory requirements.
- Equipment returns shall be processed {***}.
- Customer's proposals (including RFP responses) will be supported by Sprint
PCS National Accounts Program with modifications based on Manager's local
requirements and offerings.
- Manager will accept credit policies and approvals of Sprint PCS. The N
credit class (pre-approved credit with special dunning treatment) which is
implemented in Sprint PCS markets will be implemented in Manager
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
Service Areas.
<PAGE>
Exhibit 4.2 - Attachment 1
Segmentation and Roles & Responsibilities
--------------------------------------------------------------------------
National Sales Area Sales
--------------------------------------------------------------------------
Customer Spend Level {***} {***}
--------------------------------------------------------------------------
Geographic Coverage Requirements {***} {***}
--------------------------------------------------------------------------
Partner Requests {***} {***}
--------------------------------------------------------------------------
Customer Decision Making Process {***} {***}
--------------------------------------------------------------------------
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
Exhibit 4.2 - Segmentation and Roles &
Responsibilities
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------
Customer Decision Making Scenario National Sales
(named account list) Area Sales Compensation
--------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Nat'l negotiations, sold/buy {***} {***} {***}
centrally
--------------------------------------------------------------------------------------------
2. Nat'l negotiations, sold/buy in {***} {***} {***}
Areas
--------------------------------------------------------------------------------------------
3. Nat'l interest/oppty, sold to/buy {***} {***} {***}
in Areas
--------------------------------------------------------------------------------------------
4. Local negotiations sold/buy in Areas {***} {***} {***}
--------------------------------------------------------------------------------------------
</TABLE>
*** Confidential portions omitted and filed separately with the Commission.
<PAGE>
THE METHODS AND PROCEDURES TO PROVIDE TRANSFER OF
SERVICE EXHIBIT IS CURRENTLY UNDER DEVELOPMENT.
<PAGE>
SPRINT PCS-SM-
MANAGER SALES ACTIVATION/DEACTIVATION RECORD
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
MANAGER INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Manager Name:
-----------------------------------------------------------------------------------------------------------------------------------
Sales Associate Name: First Name: MI: Last Name:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CUSTOMER INFORMATION (ALL INFORMATION MUST BE INCLUDED)
/ / Activation Record / / Consumer Account MIN: ( ) -
/ / Deactivation Record Date: _____/_____/_____ / / Business Account ESN (hex):
-----------------------------------------------------------------------------------------------------------------------------------
First Name: MI: Last Name:
-----------------------------------------------------------------------------------------------------------------------------------
Company Name (if applicable):
-----------------------------------------------------------------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------------------------------------------------------------------------
City: County: State: Zip Code:
-----------------------------------------------------------------------------------------------------------------------------------
Home Phone: ( ) -
WORK Phone: ( ) - EXT: DO NOT Use Cellular Phone or Pager Numbers for Work Phone
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
BILLING ADDRESS INFORMATION (IF DIFFERENT FROM ABOVE)
-----------------------------------------------------------------------------------------------------------------------------------
Alternate Name:
-----------------------------------------------------------------------------------------------------------------------------------
Address Line 1:
-----------------------------------------------------------------------------------------------------------------------------------
Address Line 2:
-----------------------------------------------------------------------------------------------------------------------------------
City: County: State: Zip Code:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
SERVICE OPTIONS (CHECK ALL THAT APPLY)
-----------------------------------------------------------------------------------------------------------------------------------
/ / Bundled Rate Plan (select one): / / Contract Bundled Rate Local Promotion
/ / $16.99 Monthly Rate (________ minutes) / / $28.99 Monthly Rate (________ minutes) / / Local Promotion
/ / $29.99 Monthly Rate (________ minutes) / / $47.99 Monthly Rate (________ minutes) $__________________
/ / Contract Graduate Rate Plan: / / $66.99 Monthly Rate (________ minutes) Included Mins.: _______
Monthly Rate ($__________) / / $95.99 Monthly Rate (________ minutes) -----------------------
0-59 minutes used: $_____/min / / $149.99 Monthly Rate (________ minutes) Contract Term:
60-299 minutes used: $_____/min / / $190.99 Monthly Rate (________ minutes) / / 1 year / / 2 years
300+ minutes used: $_____/min
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
LONG DISTANCE PACKAGES (CHECK ONE) SPRINT PCS FEATURES (CHECK ALL DESIRED) *INCLUDED
-----------------------------------------------------------------------------------------------------------------------------------
/ / Flat Rate / / Peak/Off-Peak / / Block Long / / Caller ID* / / Caller ID Block* / / Weekend or
$0.15/min. Distance Calls / / Call Waiting* / / Insurance Plan Off-Peak
/ / Call Forward* / / Sprint PCS Home Rate USA-SM-* Package
/ / Voicemail* / / Sprint PCS Toll Free USA-SM (IF
AVAILABLE)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CREDIT CARD PAYMENT INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------
/ / AMERICAN EXPRESS Cardholder Signature:
----------------------------------------------------------------------------------------------------
/ / VISA Cardholder Name:
----------------------------------------------------------------------------------------------------
/ / MASTERCARD Card Number:
----------------------------------------------------------------------------------------------------
/ / DISCOVER Expiration Date Using Card For: / / Purchase / / Monthly Payment / / Both
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: This sample form is intended for illustrative purposes only. It is
representative of the type of information that the Manager would need to provide
Sprint PCS for monthly sales reporting purposes. The final form
<PAGE>
required of any Manager will vary based on the details of the contract
negotiated between Sprint PCS and the Manager. It will be subject to the rules
and limitations of CPNI laws based upon the customer's relationship to Sprint
PCS. Sprint PCS reserves the right to revise this form during the contract
negotiation phase.
<PAGE>
SPRINT PCS NATIONAL ACCOUNT
TERM SERVICE AGREEMENT
(VERSION 3/98)
<TABLE>
<CAPTION>
SPRINT PCS-SM-
------------------------------------------------------------------------------------------------------------------------------------
CUSTOMER ACCOUNT INFORMATION Term Agreement Number: ------------------
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Primary Customer's Legal Name Customer Doing Business As Name Main Telephone Number
------------------------------------------------------------------------------------------------------------------------------------
Street Address City State Zip Code
------------------------------------------------------------------------------------------------------------------------------------
Primary Contact Primary Contact Telephone Number
------------------------------------------------------------------------------------------------------------------------------------
Street Address City State Zip Code
Check one: / / Corporation / / Partnership / / Limited Liability Company/Partnership
------------------------------------------------------------------------------------------------------------------------------------
On behalf of Primary Customer and the Customer Affiliates, if any, listed on the attached Customer Affiliates Schedule ("Customer"),
I, the undersigned: (1) Represent that I am authorized to execute this Agreement; (2) Confirm that the information about Customer in
this Agreement is accurate; (3) Accept the terms and conditions of this Agreement; (4) Authorize Sprint PCS to do any credit
verification about Customer as Sprint PCS deems necessary; and (5) Agree that Primary Customer will be responsible, in accordance
with the terms and conditions of this Agreement, for the payment of all charges associated with the provision of Sprint Personal
Communication Services(SM) by Sprint PCS ("Services").
------------------------------------------------------------------------------------------------------------------------------------
Primary Customer's Legal Name By (Authorized Signature) Date
------------------------------------------------------------------------------------------------------------------------------------
Name of Person Signing Title Federal Tax Identification Number
------------------------------------------------------------------------------------------------------------------------------------
TERM: Check one: / / 2-year _________ to _________ or / / 3-year _________ to _________
(MM/DD/YY) (MM/DD/YY) (MM/DD/YY) (MM/DD/YY)
If no term is checked, the term is 2 years.
MINIMUM SUBSCRIBER LEVEL: / / 100 MINs / / 250 MINs / / 500 MINs / / 1,000 MINs
If no minimum subscriber level is checked, the level is 100 MINs. Each mobile identification number ("MIN") is a Sprint PCS phone
number assigned by Sprint PCS to a phone activated under this Agreement.
PRICING AND FEATURES: The pricing and features for the Services are set out on the attached pricing schedule(s).
------------------------------------------------------------------------------------------------------------------------------------
AGREEMENT: This Sprint PCS National Account Term Service Agreement ("Agreement") consists of the foregoing Customer Account
Information, the attached Sprint PCS National Account Plan Terms and Conditions of Service, applicable federal and state law, and in
certain states, the applicable tariff on file ("applicable laws") and the following Addenda:
/ / Sprint PCS National Account Pricing Tier _____ / / Customer Affiliates Schedule
/ / National Account Employee Advantage Pricing / / ---------------------
If there is any inconsistency between applicable laws and this Agreement, applicable laws will prevail.
------------------------------------------------------------------------------------------------------------------------------------
Sprint Spectrum L.P., on behalf of itself and as agent for its affiliates:
By: _______________________________________________________________________
Name: ________________________________________________________________________
Title: Regional Vice President
------------------------------------------------------------------------------------------------------------------------------------
SPRINT PCS-SM-
</TABLE>
<PAGE>
-C-1998 Sprint Spectrum L.P. All rights reserved. No reproduction
in whole or in part without prior written approval. Sprint and the
diamond logo are registered service marks of Sprint Communications
Company L.P. Sprint PCS and Sprint Personal Communication Services
are service marks of Sprint Communications Company L.P., used under
license. Mar 98
<PAGE>
[LOGO] SPRINT. SPRINT PCS NATIONAL ACCOUNT PLAN SPRINT PCS-SM-
TERMS AND CONDITIONS OF SERVICE
Sprint Spectrum L.P., doing business as Sprint PCS ("Sprint PCS"), on behalf of
itself and its affiliates, will provide Services to Customer as stated in this
Agreement.
-------------------------------------------------------------------------------
1. PROVISION OF SERVICES. Subject to this Agreement, Sprint PCS must provide
Services to Customer and Customer must pay for the Services. Customer must meet
and maintain satisfactory credit with Sprint PCS in order to receive and to
continue to receive Services and products under this Agreement. If Customer
meets and maintains certain credit criteria established by Sprint PCS, Sprint
PCS will place Customer, with respect to Customer MINs (as defined below) and
MINs under the Employee Reimbursed ("ER). Corporate Sponsorship Program, in a
preferential credit class. Sprint PCS must provide and sell Services under this
Agreement only (1) to Customer for its end user use, and (2) to Employees (as
defined below) for their end user use (under the applicable Employee program
specified in this Agreement).
The term "Employee" means a person in the service of Customer and from whose
gross pay Customer withholds FICA (Federal Insurance Contributions Act)
contributions. Each Employee may activate only 1 MIN under either the Employee
Advantage Program ("EAP") or one of the Employee Reimbursed ("ER") Programs. The
term "Customer MINs" means MINs activated by Customer for its end user use.
2. USE OF SERVICES; AVAILABILITY. Customer may not use Services and products
for any unlawful, fraudulent or abusive purpose, or in any unlawful, fraudulent
or abusive manner. Services are available within the operating range of the
Sprint PCS Network. Due to its proprietary nature, the phone will not accept
service of any wireless service provider other than Sprint PCS. Coverage and
quality of Services can be affected by atmospheric, geographic, topographic or
other conditions beyond Sprint PCS' control.
3. MINS. Sprint PCS must assign a MIN to each phone acquired by Customer for
use on the Sprint PCS Network. Customer does not own any MIN and Sprint PCS can
change any MIN by giving Customer prior notice. Customer may not, without Sprint
PCS' written consent, assign any MIN to any other person or to any product other
than that authorized by Sprint PCS. Customer may not modify the MIN programmed
by Sprint PCS into any phone or other product.
4. MINIMUM SUBSCRIBER LEVEL/THRESHOLD FEE. Customer must achieve the Minimum
Subscriber Level set forth in this Agreement within six (6) months after
Customer enters into this Agreement and maintain that level during the term of
this Agreement. If the Minimum Subscriber Level is 100 MINs, Sprint PCS will
determine whether Customer achieves and maintains the Minimum Subscriber Level
by counting (1) Customer MINs under the National Account Pricing, and (2)
Employees on the ER Programs under the National Account Pricing. If the Minimum
Subscriber Level is 250 MINs, 500 MINs or 1,000 MINs, Sprint PCS will determine
whether Customer achieves and maintains the Minimum Subscriber Level by counting
(1) Customer MINs under the National Account Pricing or on market-specific
promotions, and (2) Employees on the ER Programs or the EAP or market-specific
promotions.
<PAGE>
If Customer does not achieve the Minimum Subscriber Level within 6 months after
Customer enters into this Agreement or does not maintain the Minimum Subscriber
Level at any time during the term of this Agreement, Sprint PCS may move
Customer MINs and Employees under the ER - Corporate Sponsorship Program to a
rate plan with a lower minimum subscriber level and Customer will be subject to
the requirements of that rate plan and invoiced based on that rate plan starting
with the immediately following invoicing cycle. If Customer does not achieve the
Minimum Subscriber Level within 6 months after Customer enters into this
Agreement, Sprint PCS may also charge Customer a threshold fee of $100 for each
MIN below the Minimum Subscriber Level.
5. EMPLOYEE ADVANTAGE PROGRAM. The EAP is a program and pricing plan only for
Employees. If Customer elects to participate in the EAP, (1) Customer and Sprint
PCS must agree in writing to a mutually satisfactory authorization process for
Employees to participate in this option, and (2) Customer must provide
opportunities for Sprint PCS to distribute marketing materials, demonstrate
Services and make products and Services available for purchase by Employees.
Employees under the EAP must meet and maintain satisfactory credit with Sprint
PCS in order to receive and to continue to receive Services and products. An
Employee under the EAP receives the rates set forth in the attached National
Account Employee Advantage Pricing and is subject to Sprint PCS' standard
consumer Terms and Conditions of Service. Customer is not liable for any
products or Services furnished to Employees under the EAP. The EAP is available
in all markets, except as otherwise noted in the National Account Employee
Advantage Pricing.
6. EMPLOYEE REIMBURSED. CORPORATE SPONSORSHIP PROGRAM. The ER - Corporate
Sponsorship Program is a program only for Employees. If Customer elects to
participate in the ER - Corporate Sponsorship Program, Customer and Sprint PCS
must agree in writing to a mutually satisfactory authorization process for
Employees to participate in this option. Following that agreement, Sprint PCS
must provide Services to each Employee that Customer authorizes to participate
in this option. An Employee under the ER Corporate Sponsorship Program (1)
receives either (A) market-specific promotions, if the Minimum Subscriber Level
is above 100 MINs, or (B) the rates set forth in the National Account Pricing,
and (2) is subject to this Agreement (and not Sprint PCS' standard consumer
Terms and Conditions of Service). Sprint PCS may rely on any authorization
obtained pursuant to the agreed upon process and Customer is responsible for any
fraud or misrepresentation by an Employee concerning any authorization. If an
Employee under the ER - Corporate Sponsorship Program does not pay by the due
date for the products and Services provided to the Employee and Sprint PCS
notifies Customer in writing of the Employee's payment failure, Customer will
pay for the products and Services provided to the Employee within 30 days after
the date of Sprint PCS' written notice to Customer. The ER - Corporate
Sponsorship Program is available in all markets, except as otherwise noted in
the National Account Pricing.
7. EMPLOYEE REIMBURSED - INDIVIDUAL LIABILITY PROGRAM. If Customer elects to
participate in the ER - Individual Liability Program, (1) Customer and Sprint
PCS must agree in writing to a mutually satisfactory authorization process for
Employees to participate in this option and (2) Customer must provide
opportunities for Sprint PCS to distribute marketing materials, demonstrate
Services and make products and Services available for purchase by Employees.
Employees under the ER - Individual Liability Program must meet and maintain
satisfactory credit with Sprint PCS in order to receive and to continue to
receive Services and products. An Employee under the ER -Individual Liability
Program Employees (1) receives either (A) market-specific promotions, if the
Minimum Subscriber Level is above 100 MINs, or (B) the rates set forth in the
National Account Pricing if Employees sign an Employee
<PAGE>
Individual Liability Term Service Agreement, and (2) is subject to Sprint PCS'
standard consumer Terms and Conditions of Service. Customer is not liable for
any products or Services furnished to Employees under the ER - Individual
Liability Program. The ER -Individual Liability program is available in all
markets, except as otherwise noted in the National Account Pricing.
8. RELATIONSHIP BETWEEN MARKET-SPECIFIC PROMOTIONS AND NATIONAL ACCOUNT
PRICING. If a market-specific promotion is in effect when Customer or an
Employees requests Services under this Agreement, Customer or the Employee, as
applicable, may choose between the applicable market-specific promotion and the
National Account Pricing. If the promotion is chosen, the National Account
Pricing will become effective (1) automatically after the expiration of the
promotion for Customer MINs and for MINs activated under the ER - Corporate
Sponsorship Program, and (2) upon execution of the Employee Individual Liability
Term Service Agreement for MINs activated under the ER- Individual Liability
Program.
9. CUSTOMER RESPONSIBILITY FOR CHARGES. Customer must pay all charges for
Services and products, including, without limitation, recurring monthly charges,
airtime charges, applicable local or toll charges, connection charges, roaming
charges, traveling airtime charges, and all applicable taxes and governmental
surcharges associated with each Customer MIN and each MIN under the ER -
Corporate Sponsorship Program (as specified in the applicable paragraph),
regardless of the identity of the person that actually uses or has possession of
the phone when Sprint PCS provides Services.
10. INVOICING AND PAYMENT. Sprint PCS invoices (1) recurring monthly charges 1
month in advance, and (2) airtime charges retroactively to the first minute at
the appropriate rate level on Customer's rate plan according to the total
monthly usage. Sprint PCS rounds airtime charges up to one minute increments.
Sprint PCS invoices Customer for calls (1) from MINs from the time the TALK (or
similar key) is pressed until Sprint PCS records the call as terminated and (2)
to MINs from the time the call is answered until Sprint PCS records the call as
terminated. Sprint PCS invoices charges for Services as soon as possible after
the Services are provided; but Sprint PCS may invoice Customer for usage that
occurred prior to the close of an invoicing cycle if the usage was not
previously invoiced to Customer. Invoicing cycles are approximately 30 days in
length. Invoicing cycle and dates may change from time to time. If Sprint PCS
must take action beyond invoicing Customer for charges in order to receive
payment, Customer will pay Sprint PCS' reasonable costs and expenses of
collection, including, without limitation, reasonable attorneys' fees and
expenses, the fees of any collection agency and court costs. Customer must
promptly notify Sprint PCS in writing of any change in Customer's pricing
address. Sprint PCS considers payments past due if it does not receive the
payment by the due date shown on each ice. Upon termination of this Agreement,
recurring monthly charges covering the then current invoicing cycle will not be
prorated.
11. LATE CHARGES. Any payment not made by the due date will accrue late
charges until paid at the rate of 1.5% per month (or, if less, at the maximum
rate allowed by applicable laws). Late charges will be prorated daily for each
day that payment is overdue, but will not be compounded monthly. Sprint PCS'
acceptance of late or partial payments (even if marked "paid in full") does not
waive Sprint PCS' rights to recover unpaid amounts. Sprint PCS may charge an
additional amount for any check or other negotiable instrument endorsed by
Customer and returned unpaid by a financial institution for any reason.
12. DISPUTED CHARGES. Customer must raise any dispute that it has regarding
any charge invoiced to it within 90 days of the date of the invoice.
<PAGE>
Otherwise, Customer is considered to have accepted the invoice. Customer must
notify Customer's Sprint PCS National Account Representatives in writing of the
specific nature and amount of the dispute. Customer's oral or written
communications to Sprint PCS Customer Care, Sprint PCS Retail Stores or Sprint
PCS' general sales or business offices do not constitute notice of a dispute.
Customer does not have to pay any properly disputed charges while Sprint PCS
investigates them, but Customer must pay amounts not in dispute by the due date.
All claims between the parties related to this Agreement will be litigated
individually and the parties will not consolidate or seek class treatment for
any claim, unless previously agreed to in writing by the parties.
13. TAXES AND OTHER GOVERNMENTAL CHARGES. Customer must pay all taxes and
other charges levied on Services or products by federal, state or local
authorities or foreign governments or pursuant to these authorities' and
governments' orders (except for taxes based on Sprint PCS' net income) if Sprint
PCS pays these taxes and other charges directly. Otherwise, Customer must pay
these taxes and other charges directly to the relevant entity. If Customer
claims any tax exemption, Customer must provide a proper original of the
appropriate document(s) establishing Customer's tax exemption. Any tax exemption
applies only from the date Sprint PCS receives the document(s) for available
exemption(s).
14. CALLER ID. If Customer or an Employee (each referred to as a "User") does
not want persons called by the User to receive the MIN assigned to the User's
phone, the User must contact Sprint PCS Customer Care for automatic call ID
blocking information.
15. ROAMING. "Roaming" occurs when a call is made or received on a wireless
network that is not a part of the Sprint PCS Network. Roaming capabilities and
charges are different from capabilities and charges on the Sprint PCS Network.
When roaming, the User will be subject to the limitation of liability provisions
and other applicable rules imposed by the other carrier on its own subscribers.
16. TRAVELING. "Traveling" occurs when Customer makes or receives a call on
the Sprint PCS Network in a market other than the Home Service Area associated
with the phone. A call will be "traveling" even if the User is outside the Home
Service Area associated with the phone for only a part of such call. Traveling
is eliminated for phones that are covered under Home Rate USA.
17. HOME RATE USA. Home Rate USA is available in all markets, except as
otherwise noted in the National Account Pricing. Under Home Rate USA, calls
placed or received anywhere on the Sprint PCS Network are charged at the
standard home airtime rates associated with the phone. Long distance charges
apply to long-distance calls. In order to remain eligible for Home Rate USA,
more than 10% of peak calls must be received or made inside the Home Service
Area to which each activated phone is assigned. Sprint PCS will measure that
percentage over any three consecutive invoice cycles. If, during that period,
the activated phone fails to meet that percentage, Sprint PCS, in order to limit
the abusive use of Home Rate USA, will terminate the subscriber of record's
eligibility for Home Rate USA with the immediate following invoice cycle.
18. TOLL FREE USA. Toll Free USA is available in all markets, except as
otherwise noted in the National Account Pricing. Under Toll Free USA, calls made
to anywhere in the United States, Puerto Rico and the U.S. Virgin Islands will
be charged at the standard airtime rates associated with the phone only with no
additional long-distance charges. For each phone, Toll Free USA
<PAGE>
includes up to 1000 domestic long distance minutes per month. These minutes may
not be used during the Weekend Option (see National Account Pricing) or the Off-
Peak Option (see National Account Pricing) time periods. For MINs on Toll Free
USA, Sprint PCS bills domestic long distance minutes in excess of 1,000 minutes
per month or during the Weekend Option or Off-Peak Option time periods at $0.10
per minute.
19. INTERRUPTION OF SERVICES. Sprint PCS may give credit for a continuous
interruption of Services for more than 24 hours on a case-by-case basis. No
credit will be made for interruptions caused by negligence or willful action or
omission of Customer or by failure of products or services not provided by
Sprint PCS. Sprint PCS may provide Customer with an airtime credit of 1 minute
for a call that is disconnected due to transmission limitations caused by
atmospheric, geographic or topographic conditions and that Customer redials
within 1 minute of disconnection. Customer must notify Sprint PCS Customer Care
within 24 hours of the disconnection to request credit for the call.
20. LOST OR STOLEN PHONES. If one of Customer's phones is lost or stolen,
Customer must immediately notify Sprint PCS toll free at 1-888-788-0788 (or
other number provided by Sprint PCS to Customer in writing from time to time).
Customer is responsible for all charges for Services provided to Customer before
Customer notifies Sprint PCS of the loss or theft. Sprint PCS will deactivate
Services to the MIN upon notification. Sprint PCS may require that Customer
provide evidence of the loss or theft (e.g., a police report or affidavit). If
the phone is later found, Sprint PCS may require Customer to exchange the phone
for another phone prior to reactivating Services.
21. LIMITATION OF LIABILITY.
1) Except as otherwise provided in subparagraph (2) of this paragraph 21,
Sprint PCS' sole liability for any loss or damage arising out of
providing or failing to provide Services to Customer, including,
without limitation, mistakes, omissions, interruptions, delays,
errors, or defects does not exceed (A) in cases related to a specific
phone, Sprint PCS' prorated monthly recurring charge ("MRC" as
specified on the National Account Pricing) to Customer for Services to
the affected phone during the affected period, or (B) in cases not
related to a specific phone, Sprint PCS' prorated MRC to Customer for
Services during the affected period.
2) Sprint PCS is not liable for any damage arising out of or in
connection with:
a) any act or omission of any provider other than Sprint PCS;
b) any directory listing;
c) any dropped calls;
d) any interruption of Services, including interruptions caused by
equipment or facilities failure or shortages, transmission
limitations or system
<PAGE>
capacity limitations;
e) an interruption or failure of 911 or E911 emergency services or
identification of the MIN, address or name associated with any
person accessing or attempting to access emergency services from
User's phone;
f) the installation or repair of any products or equipment by
parties that are not Sprint PCS' authorized employees or agents;
g) events due to factors beyond Sprint PCS' control, including,
without limitation, acts of God (including, without limitation,
weather-related phenomena, fire or earthquake), war, riot,
strike, order of governmental authority;
h) any use of a phone not authorized by Customer; or
i) any negligent or intentional act or omission of Customer or an
Employee.
3) UNDER NO CIRCUMSTANCES IS SPRINT PCS LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH PROVIDING OR FAILING TO PROVIDE SERVICES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, COST OF
REPLACEMENT PRODUCTS AND SERVICES.
This paragraph 21 "Limitation of Liability" survives the expiration or
termination of this Agreement.
22. INDEMNIFICATION. Customer will indemnify and defend Sprint PCS, its
directors, offices, employees and agents from and against any claim, action,
damage, liability and expense, including reasonable attorneys' fees, arising out
of or in connection with: (1) any act or omission of Customer or an Employee
that Customer is responsible for and that occurred in connection with the use of
the Services or products or equipment used in connection with the Services, or
(2) any communications made or received by Customer or an employee over the
Sprint PCS Network. This paragraph 22 "Indemnification" survives the expiration
or termination of this Agreement.
23. NO WARRANTIES. SPRINT PCS MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES
REGARDING THE SERVICES OR ANY PRODUCTS AND DISCLAIMS ANY IMPLIED WARRANTIES,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. SPRINT PCS DOES NOT AUTHORIZE ANYONE TO MAKE A
WARRANTY OF ANY KIND ON SPRINT PCS' BEHALF AND CUSTOMER SHOULD NOT RELY ON ANY
SUCH STATEMENT. SPRINT PCS IS NOT THE MANUFACTURER OF ANY PRODUCTS OR EQUIPMENT
AND STATEMENTS REGARDING ANY PRODUCTS OR EQUIPMENT SHOULD NOT BE INTERPRETED AS
A WARRANTY. THIS PARAGRAPH 23 "NO WARRANTIES" SURVIVES EXPIRATION OR TERMINATION
OF THIS AGREEMENT.
<PAGE>
24. WAIVER OF JURY TRIAL. EACH OF THE PARTIES WAIVES ITS RIGHTS TO A TRIAL BY
JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR
ARISING OUT OF THIS AGREEMENT BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY. THIS
WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS
AGREEMENT.
25. EARLY TERMINATION AND EARLY TERMINATION FEE. Customer may terminate this
Agreement or any Customer MIN or MIN under the Employee Reimbursed Program -
Corporate Sponsorship prior to the end of the term of this Agreement with or
without notice to Sprint PCS. Upon termination, Customer must pay the
termination fee set forth in the National Account Pricing (in addition to
Customer's other payment responsibilities for each terminated MIN). Customer is
not obligated to pay the termination fee (1) if Customer gives Sprint PCS prior
written notice of termination and replaces each terminated MIN with a new MIN at
the time Customer notice to terminate is given, or (2) if the terminated MINs
have remained activated by Customer for the original two or three year term of
this Agreement.
26. EARLY TERMINATION AS A RESULT OF CHANGE IN CONTROL OF PRIMARY CUSTOMER.
Sprint PCS may, at its option, upon written prior notice to Customer, terminate
this Agreement, if Primary Customer (1) consolidates with, (2) merges into, or
(3i) conveys, transfers or leases all or substantially all of its assets to, any
entity that: (A) has, in the past, materially breached prior agreements with
Sprint PCS, (B) is a direct competitor of Sprint PCS or its affiliates in the
wireless telecommunications business, (C) does not meet Sprint PCS' reasonable
credit criteria, (D) fails to execute a reasonable non-disclosure agreement, or
(E) refuses to assume the obligations of Primary Customer under this Agreement.
27. EARLY TERMINATION AS A RESULT OF CHANGE IN CONTROL OF A CUSTOMER
AFFILIATE. If, during the term of this Agreement, a Customer Affiliate no longer
complies with the definition of the term "Customer Affiliate", Sprint PCS may,
at its option, upon prior written notice to Primary Customer and the applicable
Customer Affiliate, terminate this Agreement with respect to the Customer
Affiliate.
28. TERMINATION FOR CAUSE. Except as otherwise provided in this Agreement
(such as failure to achieve or maintain the Minimum Subscriber Level), a party
may terminate this Agreement with 5 business days' prior written notice to the
other party, if a party:
1) fails to perform or violates any material representation, warranty or
covenant of this Agreement, (A) if the default continues for more
than 30 days after the nondefaulting party provided written notice of
the default to the defaulting party, or (B) if the default continues
for more than 30 days after the nondefaulting party provided written
notice of the default to the defaulting party, but the default is of
a nature to require more than 30 days to cure and continues beyond
the time reasonably necessary to cure and the defaulting party has
not undertaken measures to cure the default within the 30 days after
the nondefaulting party's notice;
2) (A) institutes a voluntary proceeding, or becomes the subject of an
involuntary proceeding which involuntary proceeding is not dismissed
within 30 days, under any bankruptcy act, insolvency law or any law
for the relief of debtors, (B) has a
<PAGE>
receiver appointed for the party which appointment is not dismissed,
vacated or stayed within 30 days, (C) executes a general assignment
for the benefit of creditors, or (D) ceases to do business as a going
concern; or (E) the party is unable or admits its inability to pay
its debts as they become due;
3) in the case of Customer, fails to pay any invoiced amount that is not
the subject of a bona fide dispute by the due date, if the failure
continues for more than 30 days after Sprint PCS provided written
notice of payment default to Customer; or
4) in case of Customer, fails to pay, as specified in the ER - Corporate
Sponsorship Program, any invoiced amount that is not the subject of a
bona tide dispute of an authorized employee under that program.
29. EFFECTS OF TERMINATION. Termination of this Agreement for cause is without
prejudice to any other rights or remedies of the parties at law or in equity and
under this Agreement. Termination of this Agreement for any cause does not
release either party from any liability which, at the time of termination, has
already accrued to the other party, or which may accrue in respect of any act or
omission prior to termination or from any obligation which is expressly stated
to survive the termination. Upon early termination of this Agreement as a result
of Customer's default, Sprint PCS may move all Customer MINs and ER - Corporate
Sponsorship Program MINs to a rate plan with a lower minimum subscriber level
and Customer will be subject to the requirements of that rate plan and invoiced
based on that rate plan starting with the immediately following invoicing cycle.
Upon expiration of the term of this Agreement, Sprint PCS will continue Services
under the terms, conditions and rates prevailing at that time on a month-to-
month basis, with no rate guarantee, and on a rate plan applicable to the number
of subscribers Customer then has, unless Customer chooses a new fixed term rate
plan available at that time.
30. PHONES AND OTHER PRODUCTS. Sprint PCS may sell Sprint PCS Phones and other
products to Customer and Employees in connection with the Services provided
under this Agreement. Customer agrees that its purchase of phones and other
products (1) is for its end user use only, and (2) is governed by (A) the
materials accompanying the phones or other products, such as limited warranties,
(B) a products purchase addendum, if any, and (C) a security agreement addendum
for equipment financing, if any.
31. SUBSCRIBER INFORMATION. In the normal course of providing Services to
Customer, Sprint PCS develops information that relates to the quantity,
technical configuration, type, destination and amount of Customer's and
Employees' use of Services, together with the development of billing information
("Subscriber Information"). As part of mutually agreed to management reporting,
Sprint PCS may disclose to Customer the Subscriber Information in aggregated
form without reference to individual Users or their individual Subscriber
Information.
In addition, Sprint PCS may disclose to Customer the Subscriber Information with
reference to individual Users or their individual Subscriber Information.
Customer represents and warrants that each Employee agreed to or will agree to
that disclosure ("Employee Approval"). Customer agrees to retain all Employee
Approvals in a safe location at Customer's principal place of business during
<PAGE>
the term of this Agreement, and to allow Sprint PCS, upon reasonable prior
written notice and during reasonable business hours, to review and copy (at
Sprint PCS' cost) the Approvals. Without limiting the generality of Customer's
other indemnification obligations under this Agreement, Customer will indemnify
and defend Sprint PCS, its directors, offices, employees and agents from and
against any claim, action, damage, liability and expense, including reasonable
attorneys' fees, arising out of or in connection with (1) Sprint PCS' disclosure
to Customer of Subscriber Information with reference to individual Users or
their individual Subscriber Information, and (2) Customer's handling, retention,
and other administration of the Approvals, including, without limitation, a
failure to obtain an Approval from an Employee.
Sprint PCS will limit its use of the Subscriber Information to the marketing of
Services related to Sprint PCS' total service offering to Customer and, absent
Customer's prior consent, Sprint PCS will not use the Subscriber Information to
market and sell to Customer telecommunications services not related to Sprint
PCS' total service offering to Customer.
32. CHANGES TO THE AGREEMENT. Sprint PCS may not change fixed charges during
the term of this Agreement; but Sprint PCS may change charges that are not fixed
for the term of this Agreement if Sprint PCS provides Customer 30 days prior
written notice. Fixed charges are set forth on the National Account Pricing.
Certain MRC options under the National Account Pricing include bundled minutes.
Except as provided in the preceding sentence, this Agreement may only be amended
in a writing signed by both parties or by changes to applicable laws. Changes to
applicable laws will be effective as provided in the applicable laws.
33. OTHER TERMS AND CONDITIONS. Notices under this Agreement must be in
writing and may be given either (1) by overnight courier or in person, or (2)
addressed and deposited in the U.S. Mail, return receipt requested, postage
prepaid. Customer's notice address is set out in the Customer Account
Information and to Sprint PCS at the following address: Sprint PCS, 4900 Main,
Kansas City, MO 64112, Attention: Director National Sales Operations. Notice
addresses may be changed by giving notice in accordance with this paragraph. If
mailed according to this paragraph, notice will be presumed given 3 days after
deposit in the U.S. Mail. If sent by overnight courier, notice will be presumed
given 1 day after deposit with the courier. If given in person, notice will be
presumed given when personally delivered to (or refused by) the person.
This Agreement makes up the entire agreement between Customer and Sprint PCS and
supersedes all prior written and verbal agreements, representations, promises or
understandings between the parties. Customer may not assign this Agreement
without Sprint PCS' prior written consent. Any assignment in violation of this
prohibition will be null and void. This Agreement will be binding upon the
successors and assigns of the parties, and will be interpreted in accordance
with the laws of the State of Missouri. Each of the parties submits itself to
the personal jurisdiction of the courts of the State of Missouri. If any part of
this Agreement is held to be invalid or unenforceable, the remainder of the
Agreement will remain in full force and effect. If either party fails to enforce
any right or remedy available to it under this Agreement, that failure will not
be construed as a waiver of the right or remedy with respect to any other breach
or failure by the other party.
<PAGE>
NATIONAL ACCOUNT PRICING
Instructions to the Regional Director, National Account Manager and National
Account Executive.
Prior to presenting this Agreement to the Customer, please replace this sheet of
paper with the official and authorized Sprint PCS National Account Pricing sheet
that is appropriate for this Customer. There are 3 official and authorized
National Account Pricing sheets that are available on the National Account
Operations Server. Please pull the price sheet off the server every single time
you present this Agreement to the Customer. DO NOT CHANGE THE PRICE SHEET in any
way without prior written approval of the National Sales Operations.
Failure to follow these instructions may result in corrective action, including,
without limitation, delay in payment of commissions otherwise due on contract
signing pending correction of this Agreement.
<PAGE>
NATIONAL ACCOUNT EMPLOYEE ADVANTAGE PRICING
Instructions to the Regional Director, National Account Manager and National
Account Executive.
Prior to presenting this Agreement to the Customer, please replace this sheet of
paper with the official and authorized Sprint PCS National Account Employee
Advantage Pricing sheet. There is 1 official and authorized National Account
Employee Advantage Pricing sheet that is available on the National Account
Operations Server. Please pull the price sheet off the server every single time
you present this Agreement to the Customer. DO NOT CHANGE THE PRICE SHEET in any
way without prior written approval of National Sales Operations.
Failure to follow these instructions may result in corrective action, including,
without limitation, delay in payment of commissions otherwise due on contract
signing pending correction of this Agreement.
<PAGE>
EXHIBIT 4.3
SPRINT PCS ROAMING AND INTER SERVICE AREA PROGRAM REQUIREMENTS
The provisioning and maintenance of seamless national roaming and inter
service area services is in the fundamental business interest of Sprint PCS.
This Exhibit accordingly sets forth the minimum standards and requirements for
Manager to comply with the provisioning and maintenance of roaming and inter
service area services in support of a seamless national roaming services
network for Sprint PCS and each of its Managers. The provisioning and
maintenance of seamless national roaming and inter service area services is
contingent upon the development of a seamless national wireless service
network between Sprint PCS and Manager as defined by Sprint PCS.
NATIONAL ROAMING SERVICES
Manager will establish and maintain roaming services for its subscribers of
the same quality and at the same standard of service as those provided to the
subscribers of Sprint PCS. These services will include, but not be limited to,
the implementation of the same preferred roamer list and system acquisition
protocol as it may be developed, modified and amended from time to time by
Sprint PCS.
MANAGER REQUIREMENTS AND RESPONSIBILITIES
In order to become and maintain its status as a Sprint PCS Manager, Manager
shall meet the following requirements and responsibilities in connection with
the development, maintenance and marketing of roaming services.
- Manager shall establish and maintain an integrated network between Sprint
PCS and each market and territory serviced by Manager sufficient to
identify and measure the traffic of each roamer on Manager's network.
- Manager agrees to participate in all of Sprint PCS's roaming agreements
where the Manager is included within the scope of that agreement.
- Manager agrees to refer each additional prospective roaming arrangement or
partner that may come to the attention of Manager to Sprint PCS for
consideration and/or implementation by Sprint PCS.
- Manager agrees to abide by and comply with the business processes of
Sprint PCS pertaining to roaming products and services including but not
limited to the following:
- Net settlements
- Clearinghouse services
- SS7 gateway services
- Fraud products (i.e. CDR visibility)
- Trouble reporting management
<PAGE>
EXHIBIT 4.3
- Customer Care policies and procedures
- Billing standards
- Manager may, if it so desires, deliver enhanced roaming products and
services that exceed the Sprint PCS minimum standards provided such
enhanced roaming products and services do not impose additional
requirements or risks on the network of Sprint PCS and Sprint PCS gives
its prior written approval for the offering of such product and service
enhancements. The approval of Sprint PCS hereunder shall not be
unreasonably withheld.
- Manager agrees that Sprint PCS shall be the centralized coordinating
contact point for operational issues and processes for companies which
have a roaming agreement with Sprint PCS or Manager. These operational
issues and processes include, but are not limited to, the following:
- Line range updates
- Line number administration
- Trouble resolution
- Clearing reconciliation
- Message processing
- Roaming rates
- Manager shall establish a single point of contact for all roaming related
issues and concerns.
- Manager shall be responsible for all direct costs related to establishing
and maintaining seamless national roaming services between its subscribers
and Sprint PCS's roaming partners.
SPRINT PCS SUPPORT SERVICES
Sprint PCS agrees to use commercially reasonable efforts to include Manager
markets in all roaming agreements negotiated by Sprint PCS and its other
Managers.
- Sprint PCS agrees to incorporate Manager into Sprint PCS internal methods
and procedures to the extent necessary to support the provisioning and
maintenance of roaming services in conformity with and pursuant to
implementation of the Agreement and other standards and programs adopted
between the Parties.
- Sprint PCS agrees to review, evaluate and attempt to execute using
commercial reasonable standards each additional prospective roaming
arrangement or partner referred to it by Manager.
2
<PAGE>
EXHIBIT 4.3
- Sprint PCS agrees to notify Manager of material operational issues raised
by Sprint PCS or by companies which have a roaming agreement with Sprint
PCS or Manager.
- Sprint PCS shall establish a single point of contact for all roaming
related issues and concerns.
INTER SERVICE AREA REQUIREMENTS
The reciprocal fee per minute for Inter Service Area usage will be ${***}.
If Manager elects to provide customer care and billing services rather than
purchase the services from Sprint PCS, Manager and Sprint PCS will use
commercially reasonable efforts to put in place the required systems
interfaces to allow accurate identification of Inter Service Area settlement
information. In the event a near term interface solution is not achievable in
a reasonable time frame, Manager and Sprint PCS will use the processes and
interfaces used to support traditional roaming agreements as an interim
solution to allow for the capture and settlement of Inter Service Area Usage.
Sprint PCS and Manager agree to put in place a traditional interface to allow
for Inter Service Area usage settlement as soon as practically possible.
*** Confidential portions omitted and filed separately with the Commission.
3
<PAGE>
EXHIBIT 5.2 (AMENDED)
MARKETING COMMUNICATIONS GUIDELINES
FOR USE OF THE SPRINT BRAND AND TRADEMARKS
FEBRUARY, 1998
I. BRANDING
A) Any use of the Sprint name in conjunction with the Diamond logo
("Sprint Brand") or any other Sprint trademark or service mark
("Trademark"), is permitted only pursuant to a signed License
Agreement ("License") with Sprint Communications Company L.P.
("Sprint"). The Sprint Brand and Trademarks are collectively referred
to as "Sprint Marks."
B) In addition to compliance with the License, all uses of the Sprint
Marks must adhere to both these Marketing Communications Guidelines
and to the Sprint Brand Identity Standards, a copy of which is
attached to the License, which include standards for use and
application relating to:
- Corporate Branding
- Product Branding
- Service Branding
- Co-Branding
- Retail Applications (point-of-sale)
- Packaging
C) All communications that use the Sprint Brand or Trademarks must be
presented to Sprint fourteen (14) days prior to use for review and
approval.
II. USAGE GUIDELINES
A) Any public use of the Sprint Marks ("Use") must be follow Sprint's
guidelines. Use of the Marks includes the following:
- Broadcast (TV and Radio)
- Print
- Direct Mail
- New Media (on-line, CD ROM, Internet, etc.)
- Collateral Materials
- Endorsements/Sponsorships
- Use of Celebrities and/or Public Figures
- Retail Packaging/Use with Third Parties
B) The following standards apply to all Uses of the Sprint Marks.
- All uses of the Sprint marks must be in a manner generally consistent
with overall Sprint brand positioning statement, as determined by
Sprint from time to time. Sprint will review all
advertising/communication strategy and make judgments on its
consistency with the overall Sprint brand positioning within ten (10)
days of receipt. If the strategy is judged to be inconsistent, it
will not be used or will be changed to be consistent with Sprint brand
positioning. Pre-production advertising/communications will be
reviewed by Sprint for consistency with Sprint brand positioning
and personality
<PAGE>
within ten (10) days of receipt. If the
advertising/communications are judged to be inconsistent, it will
not be used or will be changed to be consistent with the Sprint brand
positioning and personality.
- Sponsorship or endorsements using the Sprint Brand are not allowed
without the prior written consent of Sprint. The criteria that will be
used by Sprint in determining whether to allow the proposed
sponsorship or endorsement are attached as Exhibit 2. All new
sponsorships or endorsements must be consistent with Sprint Brand
positioning and should not compete in any way with any of Sprint's
existing sponsorships or endorsements. Sprint will review any new
sponsorships that are being recommended and will made judgments on
consistency with the overall Sprint sponsorship strategy within thirty
(30) days of receipt.
- All Uses of the Sprint Marks must be consistent with the Sprint
Guidelines/Standards (attached as Exhibit 3). Use of the Sprint Marks
on packaging and with third parties must also meet the Sprint
Guidelines/Standards.
<PAGE>
EXHIBIT 2
SPONSORSHIP AND ENDORSEMENT
SELECTION GUIDELINES AND STANDARDS
I. SPONSORSHIPS
The following guidelines are used when determining whether or not Sprint will
invest in a particular sponsorship property.
- The sponsorship must be consistent with the overall positioning of the
Sprint brand, and must be consistent with Sprint's sponsorship
marketing objectives of brand building, business building, and positive
employee impact.
- The sponsorship must reflect or enhance Sprint's position or image in the
marketplace. There must be a natural telecommunication link with the
property, preferably as the/a provider.
- The sponsorship should be a legitimate forum for Sprint's participation.
- The sponsorship should offer a dominant position among sponsors of the
property/event and/or should provide category exclusivity. This brand
visibility for Sprint should occur through on-site signage, the event name
and media visibility, as examples.
- The sponsorship should provide an opportunity for a consistent, long-term
relationship with the property.
- If the sponsorship is a barter deal, the media/merchandising value of
the sponsorship should reflect a 2.5x or greater return for Sprint
vis-a-vis the barter amount.
- The sponsorship must provide opportunities for measurement such that
both brand impact and business impact can be quantified.
II. ENDORSEMENTS
- Endorsements of the Sprint brand should be used in a manner consistent
with Sprint's brand positioning and personality. New endorsements should
in no way compete with existing programs.
- Sprint will review any new endorsements that are being recommended and
will make judgments on consistency and conflict within fourteen (14) days
of receipt.
USE OF CELEBRITY AND/OR PUBLIC FIGURES
<PAGE>
- The use of a celebrity/public figure must be consistent with Sprint's
brand positioning and enhance Sprint's brand personality.
- Use of new celebrities/public figure should not be in conflict with
current celebrity programs, and should not be considered if such use would
serve to confuse customers. Sprint currently has a primary celebrity
spokesperson, Candice Bergen. Any additional celebrities must complement -
not serve as a substitute for - Candice Bergen as spokesperson.
- The celebrity should offer telecommunications category (worldwide) and
cable MSO exclusive rights to Sprint.
- Celebrities/public figures who have now, or in the past, a controversial
role (as determined by Sprint) should not be considered.
- Measurement data should be provided to confirm the celebrities broad-based
appeal.
<PAGE>
EXHIBIT 3
SPRINT GUIDELINES/STANDARDS
STANDARDS AND MONITOR PROCESS
The Sprint brand is critical to the short-term and long-term success of
Sprint. As such, it is extremely important that we protect the brand by
displaying it in a manner that is appropriate for family viewing. As a
marketer and advertiser our objective is to communicate the value of the
products and services we offer to consumers. Unless negotiated as part of a
sponsorship contract, we do not consider Sprint a "sponsor" of any program in
which we advertise or product on which the Sprint Marks appear. The program,
Internet site or product is simply a vehicle for communication to our targeted
consumers.
GENERAL GUIDELINES
1. Use the Marks only in a manner that will continue to build positive
consumer perceptions toward the Sprint brand.
2. Although we can not dictate positioning on television or Internet
advertising during specific editorial, news related advertising should not
be positioned near "Special Reports" due to tragic events or disasters
(i.e. Oklahoma City bombings, O.J. Simpson trial, etc.)
3. Do not advertise on television or Internet sites that are overly
controversial, significantly biased, or presented in a manner that would be
considered offensive to the general public.
4. Use of the Sprint Marks with third parties or on retail packaging is
prohibited unless authorized by the License Agreement. If the Sprint Marks
are used with a third party's marks or on retail packaging pursuant to the
License, the Use of the Sprint Marks must not be offensive, must not make
any false or unethical claims and must not imply a relationship between
Sprint and a telecommunications company not affiliated with Sprint.
CONTENT TO AVOID ON TELEVISION OR INTERNET OR IN THIRD PARTY USE
1. Excessive vulgar language, violence, or sexual conduct that is explicit and
would not be considered appropriate for family viewing.
2. Discriminating or inflammatory representation or editorial content which is
specific to a particular individual, group, religious or political
affiliation, ethic background, or gender.
3. News programming that represents or expresses a bias relative to
controversial political or social issues.
<PAGE>
4. Content, editorial, or investigative reporting that creates a negative
perception of the telecommunications industry.
GENERAL DEFINITIONS
The issue of determining appropriate content is very subjective and will vary
from individual to individual. The following definitions will provide
direction for key content issues.
VIOLENCE - Gratuitous, on-screen, violent acts that have significant
re-occurrence during an episode or movie are not appropriate for Sprint
advertising.
NUDITY - Programming or Internet sites that contain strong sexual content
and/or nudity is not acceptable for Sprint programming. However, if the scene
is important to the plot and is not the primary theme of the episode or movie,
it is acceptable only with advertising positioning away from the scene in
question.
LANGUAGE - The excessive use of vulgar language is not appropriate.
NEWS PROGRAMMING - News specific programs or Internet sites are acceptable
when the journalism is handled in a professional and unbiased manner. (i.e.
early or late local news, network news, CNN Headline News, CNN.com, etc.)
News magazines are considered an appropriate advertising vehicle. However,
individual episodes in which Sprint advertises must be prescreened to
determine sensitivity to the particular topics being addressed. Any segment
which contains a highly controversial topic that may negatively impact
consumer perceptions of Sprint must be avoided.
TELEVISION PROGRAM MONITORING PROCESS
All prime-time television programming that is scheduled to include Sprint
advertising is pre-screened to determine if the content is appropriate for
Sprint. The following is the procedure for content monitoring to ensure that
the guidelines are met and the Sprint brand is protected:
- Provide the content screening company with Sprint's schedule of prime-time
programming including up to the minute changes.
- All Sprint programming is screened to determine if the content is
appropriate for Sprint (per our guidelines).
- Agency network buying group is notified immediately of any content
concerns.
- Agency contacts Sprint Brand Investment Group Media staff regarding the
content in question. Sprint will make final decision regarding the
acceptability of the programming.
<PAGE>
Exhibit 11.8
CLOSING TERMS AND CONDITIONS
1 CLOSING TERMS AND CONDITIONS
1.1 DEFINITIONS AND INTERPRETATIVE RULES FOR THIS EXHIBIT. FOR PURPOSES OF
THIS EXHIBIT:
1.1.1 The following capitalized words and phrases used in this exhibit have the
following meanings:
"BUYER" means Sprint PCS or a Related Party designated by Sprint
PCS, if Sprint PCS is purchasing the Operating Assets, or Manager or a
Related Party designated by Manager, if Manager is purchasing the
Disaggregated License.
"CLOSING" means the consummation of the transactions contemplated
by this exhibit.
"CLOSING DATE" means the date scheduled for the Closing under the
terms of the applicable Section of the Management Agreement, except as
otherwise mutually agreed by Buyer and Seller or as extended as otherwise
provided in this exhibit or the Management Agreement.
"MANAGEMENT AGREEMENT" means that certain Sprint PCS Management
Agreement to which this exhibit is attached, as amended from time to
time.
"OPERATING ASSETS" means Manager's assets, property, rights,
contracts and privileges set forth in Section 11.7.2, which constitute
all of the operating assets used or usable in, and that are necessary
for, the operation of Manager's business in the Service Area as conducted
prior to the Closing Date.
"OPTION RIGHTS" means any right to purchase or right to sell the
Operating Assets or a Disaggregated License granted to Manager or Sprint
PCS, as the case may be, that may be exercised under the terms of the
Management Agreement in accordance with the terms of this exhibit.
"PROPERTY" means all of the Operating Assets, when they are the
subject of the purchase, or the Disaggregated License, when it is the
subject of the purchase.
"SELLER" means Sprint PCS, if Sprint PCS is selling the
Disaggregated License, or Manager, if Manager is selling the Operating
Assets.
1.1.2 Capitalized words and phrases used but not defined in this exhibit have
the meanings ascribed to them in the Management Agreement.
1.1.3 References in this exhibit to a "Section" mean that Section of the
Management Agreement unless otherwise noted. Any reference to purchase or
sale rights pursuant to a put or call option in the Management Agreement
will be upon the terms and conditions of this exhibit, regardless of
whether the operative Section is specified in this exhibit.
1.2 EXERCISE OF OPTION RIGHTS. Buyer and Seller will exercise their Option
Rights by delivering a written statement (the "Purchase Notice") to the
other as follows:
<PAGE>
1.2.1 Manager will exercise its Option Rights by delivering to Sprint PCS a
Purchase Notice setting forth that the Manager is exercising either
Manager's put right for the Operating Assets or Manager's purchase
right for the Disaggregated License.
1.2.2 Sprint PCS will exercise its Option Rights by delivering to Manager a
Purchase Notice setting forth that Sprint PCS is exercising either
Sprint PCS's purchase right for the Operating Assets or Sprint PCS's
put right for the Disaggregated License.
1.2.3 Manager will provide to Sprint PCS as complete a list as is practicable
of the Operating Assets, including a list of cell sites, (i) with the
Purchase Notice if given by Manager in exercising its put right, or
(ii) within 30 days after receiving a Purchase Notice if given by
Sprint PCS in exercising its purchase right.
1.2.4 Sprint PCS will provide to Manager a detailed statement describing the
geographic coverage area and spectrum of the proposed Disaggregated
License with the Purchase Notice if given by Sprint PCS in exercising
its put right. Manager will provide to Sprint PCS a detailed statement
describing the geographic coverage area and spectrum of the proposed
Disaggregated License with the Purchase Notice if given by Manager in
exercising its purchase right. In either case, the geographic area and
spectrum of the proposed Disaggregated License will not be less or
more, as applicable, than that provided for under the operative
Section. In any event, Manager must purchase spectrum sufficient to
operate one duplex CDMA carrier, including required guard bands, within
the Sprint PCS Spectrum. Sprint PCS makes no warranty or representation
with respect to use of spectrum under a Disaggregated License for any
purpose other than that contemplated by the Management Agreement.
1.3 PROPERTY TAXES. Seller will pay all taxes, general and special, and all
assessments, that are a lien on the Property and can be paid on or
before the Closing Date unless otherwise agreed by the parties, except
that all general state, county, school and municipal taxes (exclusive
of rebates, penalties or interest) for the year of sale will be
prorated between Seller and Buyer, on the basis of the current year
assessments as of the Closing Date. If the amount of any tax to be
prorated cannot be ascertained, proration will be computed on the
amount of such tax for the preceding year, and when the actual amount
of the tax becomes available, Buyer or Seller, as the case may be, will
pay the other the amount by which the obligation for taxes is greater
than the amount obtained by basing prorations on the previous year.
1.4 SALES AND TRANSFER TAXES. Seller will be liable for and will hold Buyer
harmless against all sales and use taxes, transfer taxes, documentary
stamps and similar taxes arising from the operation of the Property
prior to the Closing or the sale of the Property to Buyer pursuant to
this exhibit, except that:
1.4.1 Manager is liable for all sales taxes attributable to the services
provided to end users of the Sprint PCS Products and Services, and
1.4.2 Manager is liable for all sales taxes for handsets and accessories and
other tangible personal property sold by Manager to end users of the
Sprint PCS Products and Services.
Seller agrees to deliver a letter from the states in which the
Property is located acknowledging that all sales taxes imposed in connection
with the operation of the Property have been paid in full. Manager will deliver
<PAGE>
to Sprint PCS a letter from each state in which the Service Area is located
acknowledging that all sales taxes imposed in connection with the activities in
1.4.1 and 1.4.2 above and due prior to the Closing Date have been paid in full.
1.5 UTILITIES. Seller and Buyer will exercise their best efforts to cause
all providers of utility services to the Property to bill Seller for
all costs incurred up to the Closing Date and to bill Buyer for all
costs incurred after the Closing Date. To the extent necessary, utility
charges will be prorated as of the Closing Date.
1.6 OTHER EXPENSES. Escrow or Closing charges by the Title Company (as
defined below) will be shared equally by Seller and Buyer. All expenses
not otherwise provided for in this exhibit or the Management Agreement
will be paid by the party incurring the expense.
1.7 TITLE INSURANCE. This paragraph 1.7 will apply if the Property includes
any real property (including leasehold interests) ("Real Property").
1.7.1 Seller will, at the shared cost and expense of Seller and Buyer,
furnish Buyer an American Land Title Association Owner's Title
Insurance Policy Form B-1970 (Amended 10-17-1970) insuring Buyer's
title to any Real Property as of the Closing Date. Such insurance must
be in the amount of the purchase price allocable to such Real Property
and from a title company authorized to issue title insurance in the
state in which the Real Property is located (the "Title Company"). The
policy will not contain any "standard" or "printed" exceptions, and
Seller will provide and attach such endorsements and reinsurance
agreements as Buyer may require.
1.7.2 Within 10 days after the date of a Purchase Notice that includes Real
Property, Seller will deliver to Buyer a commitment for the policy (the
"Commitment"), together with legible copies of all documents referenced
in the schedules to the Commitment. If the Commitment discloses defects
or other matters that are objectionable to Buyer, Buyer will advise
Seller of Buyer's objections within 20 days after Buyer receives the
Commitment, copies of the documents referenced in the schedules to the
Commitment and the survey required by paragraph 1.8. Seller will remedy
any matters to which Buyer objects and will on or before the Closing
Date deliver to Buyer and to Buyer's counsel a revised Commitment
reflecting that the remedy has been or will be effected. Seller will
have the option of establishing and utilizing an escrow account to
finance the remedy of any non-material defects or matters to which
Buyer has objected and that Seller is unable to remedy prior to the
Closing Date.
1.7.3 If Seller is unable to deliver the policy of title insurance at Closing
as required by paragraph 1.7.1, Buyer may:
1.7.3.1 accept the most conforming policy of title insurance as Seller is
able to deliver, including the commitment of Seller to establish and
utilize an escrow account to remedy non-material defects or matters
after the Closing Date, or
1.7.3.2 eliminate from the purchase that portion of the Real Property that is
subject to an incurable defect or other objectionable matter and
reduce the purchase price by the amount allocated to such Real
Property. If the Real Property has a cell site or switch or other
critical network element on the Real Property and Buyer elects this
approach, then the Closing Date will be delayed a reasonable amount
of time to permit Buyer to find an alternative Site for the cell
site, switch or critical network element, or
<PAGE>
1.7.3.3 if the Real Property involves a network element so critical to the
operation of the Service Area Network that loss of the network
element renders the use of the Service Area Network impossible or
economically unacceptable (e.g., loss of a switch site) and
alternative arrangements cannot be reasonably made (e.g., sublease of
site) then Buyer may elect to terminate its purchase obligation. Upon
such termination, each party will have any other rights it may have
under the Management Agreement.
1.8 SURVEY. This paragraph 1.8 will apply if the Property includes any Real
Property.
1.8.1 Within 20 days after the Purchase Notice, Seller will, at the shared
expense of Seller and Buyer, deliver to Buyer a current "as-built"
survey of the Real Property certified to Buyer and the Title Company,
prepared in accordance with the Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys, amended 1988 ("Minimum Standards"),
meeting the accuracy requirements of a Class A Survey as defined in
Tables 1 and 2 of the Minimum Standards, showing items numbered 1, 2,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 15 of the Additional Survey
Requirements to the Minimum Standards, and containing such other
matters and certifications as are required by the Title Company to
issue its policy of title insurance as required by paragraph 1.7 or as
is required by Buyer or Buyer's counsel.
1.8.2 If the survey discloses matters that are objectionable to Buyer, Buyer
will advise Seller of Buyer's objections to the survey by written
notice to Seller within 7 days after Buyer and Buyer's counsel receive
copies of the survey, the Commitment and the documents referenced in
the schedules to the Commitment. Seller will remedy any matters to
which Buyer objects and will, on or before the Closing Date, deliver to
Buyer and to Buyer's counsel a revised survey reflecting that the
remedy has been effected.
1.8.3 If Seller is unable to deliver the survey as required by this paragraph
1.8, Buyer may:
1.8.3.1 accept the most conforming survey that Seller is able to deliver,
including the commitment of Seller to establish and utilize an escrow
account to remedy non-material defects or matters after the Closing
Date, or
1.8.3.2 eliminate from the purchase that portion of the Real Property that is
subject to an incurable defect or other objectionable matter and
reduce the purchase price by the' amount allocated to such Real
Property. If the Real Property has a cell site or switch or other
critical network element on the Real Property and Buyer elects this
approach, then the Closing Date will be delayed a reasonable amount
of time to permit Buyer to find an alternative site for the cell
site, switch or critical network element, or
1.8.3.3 if the Real Property involves a network element so critical to the
operation of the Service Area Network that loss of the network
element renders the use of the Service Area Network impossible or
economically unacceptable (e.g., loss of a switch site) and
alternative arrangements can not be reasonably made (e.g., sublease
of Site) then Buyer may elect to terminate its purchase obligation.
Upon such termination, each party will have any other rights it may
have under the Management Agreement.
1.9 SELLER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS. At the Closing,
Seller will be deemed to represent, warrant and agree to Buyer as
follows:
<PAGE>
1.9.1 ENTITY AUTHORITY. Seller is a business entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization or incorporation. Seller has fill power and authority to
execute and deliver all documents, agreements and instruments
contemplated by this exhibit (the "Transaction Documents") and to
perform its obligations thereunder. All necessary corporate action and
other proceedings required to be taken by or on behalf of Seller or its
shareholders, members or partners (as the case may be) to authorize
Seller to enter into the Transaction Documents and consummate the
transactions contemplated thereby in accordance with the terms thereof
have been duly and properly taken.
1.9.2 ENFORCEABILITY; NO CONFLICT. The Transaction Documents are the legal,
valid and binding obligation of Seller, enforceable in accordance with
their terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to
time in effect that affect creditors' rights generally, and by legal
and equitable limitations on the availability of specific remedies.
Neither the execution and delivery of the Transaction Documents nor the
consummation of the transactions therein contemplated will violate or
result in a breach of or constitute a default under any covenant or
agreement to which Seller is a party or by which Seller is bound, or
under any judgment, order, decree, rule or regulation to which Seller
is subject, or under Seller's organizational documents.
1.9.3 CONTRACTS. There are no leases, contracts, agreements or commitments
affecting the Property, or conveying or transferring any interest in
the Property, or affecting the use of the Property that extend beyond
the Closing Date, except for the items that have been identified as
included in the Property (e.g., cell site leases, colocation
agreements) (the "Assumed Contracts"). Except for the Assumed
Contracts, Buyer will not be responsible for any contracts, agreements
or commitments of Seller. All of the Assumed Contracts are valid and in
full force and effect, and constitute the legal, valid and binding
obligations of Seller and are enforceable against the other parties
thereto. There are no defaults by any party to the Assumed Contracts or
actions or omissions that could constitute such default. From the date
of the Purchase Notice to and including the Closing Date, Seller will
not, without the prior written consent of Buyer in each instance, enter
into any contracts, agreements or commitments with respect to the
Property that will survive the Closing.
1.9.4 COMPLIANCE WITH LAWS. Seller presently has all licenses, permits, and
other authorizations from federal, state, and local authorities
necessary to conduct the business presently conducted by Seller using
the Property, and Seller has not received any notice to the contrary.
Seller has no knowledge of any violation by Seller or the Property of
any law, order, regulation, restriction or requirement relating to the
Property or its occupancy or operation except as disclosed in writing
to Buyer.
1.9.5 LITIGATION. Seller is not engaged in or party to, or threatened with or
affected by, any legal action or other proceeding before any court or
administrative agency, and there are no outstanding orders, judgments,
consent decrees, stipulations or similar obligations by or with any
court or administrative agency, affecting the Property or Seller's
ability to perform the Transaction Documents, except as disclosed in
writing to Buyer.
1.9.6 TITLE AND CONDITION OF PROPERTY. Seller has good and merchantable
ownership, right, title and interest in and to all of the Property, and
at the Closing Seller will transfer the Property to Buyer free and
<PAGE>
clear of all liens and encumbrances, except incumbent microwave paths.
All inventory included within the Property purchased by Buyer hereunder
will have been paid for in full by Seller prior to the Closing, and
there will be no amounts in dispute with regard to such payments.
Seller will deliver the Property, including the improvements and
personalty located on the Property, to Buyer at Closing in the same
condition and repair as on the date of the Purchase Notice, subject
only to normal wear and tear.
1.9.7 OPERATION OF PROPERTY PENDING CLOSING. From the date of the Purchase
Notice through the Closing, Seller will conduct Seller's business
operations using the Property diligently in substantially the same
manner as theretofore conducted and in accordance with the Management
Agreement. From the date of the Purchase Notice through the Closing,
Seller will not do or permit the occurrence of, any act with respect to
the Property that, if done or permitted to occur on or prior to the
date of the Purchase Notice, would constitute a breach of the
representations, warranties and agreements made by Seller in this
exhibit, or sell, transfer, donate, pledge or otherwise dispose of or
encumber any of the Property other than inventory to be sold or used in
the ordinary course of Seller's business and consistent with Seller's
past practices.
1.9.8 HAZARDOUS MATERIALS. There is no condition of the Property or of any
substance located on, in, under or near the Property (including but not
limited to any asbestos or any hazardous substance) that could lead to
liability of the owner of the Property for damages or clean-up costs
under any federal, state or local statute or common law except as
disclosed in writing to Buyer.
1.9.9 FIRPTA COMPLIANCE. Seller is not a foreign investor and is not subject
to the Foreign Investors and Real Property Tax Act. Seller will execute
a statement or affidavit to that effect tendered at Closing.
1.9.10 UTILITIES. All utilities relevant to the then current use of any part
of the Property (including for a switch site water, gas, sewer,
electricity, trash removal, and telephone service, and including for a
cell site electricity and telephone service) are available to such
Property in sufficient quantities to adequately service such Property's
needs.
1.9.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties contained in the Transaction Documents will
survive the Closing and will continue in effect for a period five (5)
years. A waiver of any misrepresentation or breach of any warranty will
not constitute a waiver of any other misrepresentation or breach of any
other warranty under the Transaction Documents.
1.10 INDEMNIFICATION. The indemnification obligations of Sprint PCS and
Manager contained in the Management Agreement will apply to breaches of
the Transaction Documents.
1.11 PRE-CLOSING DELIVERIES. Seller will, within 30 days after the date of
the Purchase Notice, deliver to Buyer the following:
1.11.1 A list of all leases, colocation agreements, service contracts,
warranties, and other contracts, agreements, warranties, and other
contracts, agreements and commitments affecting the Property or its
ownership, management or operation.
1.11.2 True and complete copies of all certificates of occupancy, licenses,
and permits required by law and issued by all governmental authorities
having jurisdiction of the Property or its operation.
<PAGE>
1.11.3 True and complete copies of any plans, specifications, surveys,
architectural drawings or renderings, physical condition, environmental
or other reports pertaining to the Property that are in Seller's
possession or control.
1.12 REVIEW PERIOD. For a period extending from the date of the Purchase
Notice through the Closing Date ("Review Period"), Buyer will have the
right to conduct a full due diligence review of the Property, including
the following:
1.12.1 Review the documents and make, or cause to be made by agents or
contractors of Buyer's choosing, any and all physical inspections of
the Property and of all books and records regarding the Property that
are in Seller's possession or within Seller's control.
1.12.2 Conduct such environmental audits of and with respect to the Property
as Buyer deems appropriate. Seller agrees that Buyer, Buyer's
employees, agents and contractors will have access to the Property at
reasonable times for purposes of conducting the audits, and will have
the right to conduct the testing, including core drilling and soil
sampling as Buyer's consultants deem necessary for purposes of the
audits.
1.12.3 Make the engineering inspections of the improvements located on the
Property as Buyer deems appropriate, including reasonable inspections
as may be necessary to determine the structural integrity of the
improvements.
1.12.4 Make the mechanical inspections of the improvements located on the
Property as Buyer deems appropriate, including but not limited to
inspections of the electrical, plumbing, heating, ventilating and air
conditioning systems used in connection with the improvements.
1.12.5 Review the personal property records of the county and the state in
which the Property is located to determine that all personal property
security interests that have attached against the Property have been
removed.
Seller agrees to make the Property and books and records available
to Buyer and its agents, employees and contractors during the Review Period for
the inspections. If Seller fails to deliver, within the required time, the
documents and materials required to be submitted to Buyer in this paragraph,
the Review Period will be extended by the number of days between the required
date and the actual date of the delivery.
1.13 DUE DILIGENCE RESULTS. Buyer may by written notice to Seller within the
Review Period terminate the purchase obligations under this exhibit,
and upon the termination, each party will have any other rights or
obligations under the Management Agreement if, in Buyer's sole
discretion, based upon the results of Buyer's review, inspections, or
requests, or for any other reason, Buyer determines that:
1.13.1 substantially all of the Property is not owned by Seller; or
1.13.2 the Property is encumbered with liens that cannot be released by Seller
and that if Buyer were to take the Property subject to the liens, the
cost of releasing the liens would increase the anticipated cost of
running the business for the next 5 years by 10% or more. In
determining the liens to which the Property is subject, liens consented
to by Buyer during the term of the Management Agreement will not be
considered; or
<PAGE>
1.13.3 there is a problem with the business of such a magnitude that no
reasonable business person would purchase a business with such a
problem.
If Buyer does not terminate the purchase obligation by giving
notice within the Review Period, the purchase obligation will remain in full
force and effect in accordance with its terms.
1.14 SELLER'S INDEBTEDNESS. If Buyer wishes to assume any of Seller's
indebtedness in connection with the purchase of the property, Seller
agrees to cooperate with and assist Buyer in obtaining the creditor's
consent to such assignment.
1.15 CLOSING. The Closing will occur at the executive offices of Seller at
10:00 a.m. local time on the Closing Date. At the Closing, the parties
will deliver the following items:
1.15.1 BUYER'S DELIVERIES. Buyer will deliver to Seller:
1.15.1.1 Cash equal to the purchase price, payable by wire transfer to
Seller's account, minus the amount paid by Buyer to eliminate any
liens, minus the amount of any indebtedness of Seller assumed or paid
by Buyer, and minus any other amounts paid by Buyer on behalf of
Seller in connection with the consummation of the transactions
contemplated by this exhibit.
1.15.1.2 An Assignment and Assumption Agreement for the Assumed Contracts,
executed by Buyer.
1.15.1.3 A Good Standing Certificate of recent date issued by Buyer's
jurisdiction of organization.
1.15.1.4 Such other documents in such form as Seller and Seller's counsel may
reasonably require to consummate the transactions contemplated by
this exhibit.
1.15.2 SELLER'S DELIVERIES. Seller will deliver to Buyer:
1.15.2.1 Duly executed deeds, assignments, instruments of transfer, required
consents and any other documents, in recordable form where necessary,
that Buyer reasonably believes are necessary to evidence and convey
the Property to Buyer and to effect the assignment to Buyer of any
indebtedness that Buyer wishes to assume.
1.15.2.2 An Assignment and Assumption Agreement for the Assumed Contracts,
executed by Seller.
1.15.2.3 Possession of the Property to Buyer as of the Closing Date.
1.15.2.4 Evidence of lien releases, tax clearance letters and other documents
required by this exhibit.
1.15.2.5 A Good Standing Certificate of recent date issued by Seller's
jurisdiction of organization.
1.15.2.6 Such other documents in such form as Seller and Seller's counsel may
reasonably require to consummate the transactions contemplated by
this Agreement, including without limitation any bills of sale,
assignments and other instruments of transfer (including any
necessary consents thereto) in such forms as approved by Buyer and
Buyer's counsel, as shall be necessary or appropriate to convey,
transfer and assign to Buyer good and merchantable ownership,
<PAGE>
right, title and interest in and to all the Property free and clear
of all liens and encumbrances.
Notwithstanding the foregoing, to the extent that the Closing
involves the assignment of any rights in or to the License, the FCC's
prior consent by "Final Order" to such assignment is a condition to
the Closing and the obligations set forth in this exhibit will
continue to be a binding obligation of Sprint PCS and Manager until
such Final Order is received.
1.16 NONCOMPETE. This paragraph 1.15 will apply if Sprint PCS purchases the
Operating Assets:
1.16.1 For three (3) years after the Closing Date, Manager and its Related
Parties will not, directly or indirectly, compete with Sprint PCS and
its Related Parties in the Service Area.
1.16.2 For purposes of this paragraph 1.15, "compete" means engaging in any
business that offers products and services that are similar to or
competitive with the Sprint PCS Products and Services. Manager and its
Related Parties will be deemed to be engaging in a competing business
in violation of this paragraph regardless of whether Manager and its
Related Parties are acting (i) individually or jointly or on behalf of
or in concert with any other individual or entity, or (ii) as a
proprietor, partner, shareholder, member, director, officer, employee,
agent or consultant, or is acting in any other capacity or manner
whatsoever, for any individual or entity that competes with Sprint PCS
and its Related Parties.
1.16.3 The parties acknowledge and agree that the noncompetition covenant
contained in this paragraph 1.15 is reasonable in duration and
geographic scope and protects a valid business interest of Sprint PCS
and its Related Parties.
1.16.4 The parties recognize that irreparable damage will result to Sprint PCS
and its Related Parties from any violation of this paragraph 1.15 and
that the extent of such damage would be difficult if not impossible to
calculate. Accordingly, the parties expressly agree that, in addition
to any and all other remedies available to Sprint PCS and its Related
Parties for any such violation, they will have the remedies of
restraining order and injunction, and any such other equitable relief
as may be declared or issued by a court to enforce the provisions of
paragraph 1.15, without posting any bond that might be required, and
Manager will not claim in any such equitable proceedings that a remedy
at law is available to Sprint PCS and its Related Parties. The
existence of any claim or cause of action by Manager against Sprint
PCS, whether predicated on the Management Agreement or otherwise, is
not a defense to Sprint PCS' enforcement of paragraph 1.15.
1.16.5 Notwithstanding anything contained herein to the contrary, and if and
only if a provision of this type contained in this subparagraph is
enforceable in the jurisdiction in question, if any one or more of the
provisions contained in paragraph 1.15 is for any reason held to be
excessively broad as to duration, geographical scope, activity or
subject, such provisions will be construed by limiting and reducing it
so as to be enforceable to the extent compatible with the applicable
law in such jurisdiction as it then appears.
<PAGE>
Exhibit 12.3
SPRINT PCS INSURANCE REQUIREMENTS
- WORKERS' COMPENSATION INSURANCE. Manager will acquire and maintain at its
expense adequate insurance to cover any claim which may arise for workers'
compensation, as such compensation is provided for under any workers'
compensation or similar law in effect in the jurisdiction where any work is
performed. The minimum employer's liability limit of such insurance will be
not less than $500,000 per accident or disease.
- COMMERCIAL GENERAL LIABILITY INSURANCE. Manager will acquire and maintain
at its expense adequate commercial general liability insurance, including
coverage for contractual liability and products/completed operations
liability, with a limit of not less than $1,000,000 combined single limit
per occurrence for bodily injury, property damage and personal injury
liability, with contractual exclusion deleted, and with Sprint PCS and
Sprint PCS' directors, officers, employees, agents, contractors,
subcontractors and/or representatives as additional insureds. Such
insurance must contain an express provision, as evidenced on the below
referenced certificate of insurance, that the contractual liability
coverage contains no exclusion for any work performed on or near a railroad
right-of-way.
- BUSINESS AUTOMOBILE INSURANCE. Manager will acquire and maintain at its
expense adequate business automobile insurance covering the ownership,
maintenance or use of any owned, non-owned or hired automobile. Such
insurance will have a limit of not less than $1,000,000 combined single
limit per accident for bodily injury and property damage liability and will
name Sprint PCS and Sprint PCS' directors, officers, employees, agents,
contractors, subcontractors and/or representatives as additional insureds.
- UMBRELLA EXCESS LIABILITY INSURANCE. Manager will acquire and maintain at
its expense adequate umbrella excess liability insurance with a limit of
not less than $5,000,000 combined single limit in excess of the above-
referenced employers' liability insurance, commercial general liability
insurance and business auto liability insurance.
- "ALL RISK" PROPERTY INSURANCE. Manager will acquire and maintain at its
expense adequate "all risk" property insurance covering not less than the
full replacement cost of Manager's and all contractor's and
subcontractor's, if any, real and/or personal property at risk due to the
Management Agreement during the course of the Management Agreement.
