EXHIBIT 10.29
Execution Copy
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GSM OPERATING AGREEMENT
between
AT&T WIRELESS SERVICES, INC.
and
XXXXXX CELLULAR SYSTEMS, INC.
Dated as of July 11, 2003
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS................................................... 1
ARTICLE 2 GSM SYSTEMS................................................... 5
Section 2.1 Construction................................. 5
Section 2.2 Interoperability............................. 5
Section 2.3 Network Performance Standards................ 6
Section 2.4 Core Features and Services................... 6
ARTICLE 3 EDGE AND NEW TECHNOLOGIES..................................... 6
Section 3.1 EDGE......................................... 6
Section 3.2 New Technologies............................. 7
ARTICLE 4 LIMITED EXCLUSIVITY........................................... 7
Section 4.1 Limited Exclusivity.......................... 7
Section 4.2 Competitive Transactions..................... 8
Section 4.3 Limitations on Relief........................ 8
Section 4.4 AWS TDMA Cell Sites.......................... 9
Section 4.5 Roadrunner Arrangements...................... 9
ARTICLE 5 ROAMING PREFERENCE............................................ 9
Section 5.1 Roaming Preference........................... 9
ARTICLE 6 OTHER AGREEMENTS.............................................. 10
Section 6.1 Further Assurances........................... 10
Section 6.2 Reporting Obligations........................ 10
Section 6.3 Test Procedures.............................. 10
Section 6.4 Funding...................................... 10
Section 6.5 Compliance with Law.......................... 10
Section 6.6 Confidentiality.............................. 10
Section 6.7 Force Majeure................................ 11
ARTICLE 7 TERM AND TERMINATION.......................................... 12
Section 7.1 Term......................................... 12
Section 7.2 [Section intentionally omitted].............. 12
Section 7.3 Termination by AWS........................... 12
Section 7.4 Termination by DCS........................... 12
Section 7.5 Effect of Termination........................ 13
ARTICLE 8 DISPUTE RESOLUTION............................................ 13
ARTICLE 9 INDEMNIFICATION............................................... 15
Section 9.1 Indemnification by DCS....................... 15
Section 9.2 Indemnification by AWS....................... 15
Section 9.3 Procedures................................... 16
ARTICLE 10 MISCELLANEOUS................................................ 17
Section 10.1 Entire Agreement............................. 17
Section 10.2 Amendment; Waiver............................ 17
Section 10.3 Specific Performance......................... 17
Section 10.4 Remedies Cumulative.......................... 17
Section 10.5 Successors and Assigns....................... 18
Section 10.6 No Third Party Beneficiaries................. 18
Section 10.7 Further Assurances........................... 18
Section 10.8 Notices...................................... 18
Section 10.9 Governing Law................................ 19
Section 10.10 Severability................................. 19
Section 10.11 Independent Contractors...................... 19
Section 10.12 Counterparts................................. 19
Section 10.13 Construction................................. 20
Schedules
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Schedule I DCS Markets
Schedule II Comparable Markets
Schedule 2.1 Construction Plan
Schedule 2.3 Network Performance Standards
Schedule 2.4 Core Features and Services
Schedule 4.1 Overlap Markets
Schedule 4.4 AWS TDMA Cell Sites
GSM OPERATING AGREEMENT
GSM Operating Agreement, dated as of July 11, 2003, between AT&T
Wireless Services , Inc., a
Delaware corporation ("AWS"), and Xxxxxx Cellular
Systems, Inc., an Oklahoma corporation ("DCS").
WHEREAS, in order to induce AWS to enter into the GSM Roaming Agreement
(as defined below), DCS has agreed to construct and operate GSM/GPRS Systems (as
defined below) to provide GSM/GPRS roaming services to customers of AWS in the
DCS Markets (as defined below) in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
"3GPP" means Third Generation Partnership Project.
"ACC" means American Cellular Corporation.
An "affiliate" of, or person "affiliated" with, a specified person, is
a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified. ACC shall not be considered an affiliate of DCS for purposes of this
Agreement.
"AWS" is defined in the preamble.
"AWS GSM Systems" means GSM/GPRS Systems owned by AWS or its
affiliates.
"AWS Indemnified Party" is defined in Section 9.1.
"AWS TDMA Systems" means TDMA Systems owned by AWS or its affiliates.
"Change of Control of AWS" means (i) any circumstance, event or
transaction following which any person or group (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act and the regulations thereunder) is
the "beneficial owner" (as such term is used in Rules 13d-3, 13d-5 or 16a-1
under the Exchange Act) of more than 50% of the voting power of the Voting
Securities of AWS (on a fully diluted basis, treating Equity Interests of AWS
issuable upon the conversion, exchange or exercise of convertible or
exchangeable securities, or other rights to acquire Equity Interests, as issued
and outstanding) or otherwise has the power, acting alone, to control AWS; or
(ii) the sale of all or substantially all of AWS's stock, business or assets
(including through a merger or otherwise).
"Cingular" means Cingular Wireless, LLC.
"Claim" is defined in Section 9.3(a).
"Comparable AWS Market" means, with respect to any DCS Market set forth
on Schedule II, the AWS market(s) set forth opposite such DCS Market on Schedule
II.
"Comparable DCS Market" means, with respect to any AWS market set forth
on Schedule II, the DCS Market(s) set forth opposite such AWS market on Schedule
II.
"Competitive Services" is defined in Section 4.1(a).
"Competitive Systems" is defined in Section 4.2(a).
"Competitive Transactions" is defined in Section 4.2(a).
"control" (including the terms controlling, 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.
"DCS" is defined in the preamble.
"DCS GSM Systems" is defined in Section 2.1.
"DCS Indemnified Party" is defined in Section 9.2.
"DCS Markets" means the markets listed on Schedule I.
"DCS TDMA Systems" means TDMA Systems owned by DCS or its affiliates.
"Dispute" is defined in paragraph (a) of Article 8.
"Dispute Notice" is defined in paragraph (c) of Article 8.
"EDGE" means Enhanced Data for GSM Evolution, a wireless communications
technology based on GSM and defined by the relevant ETSI or 3GPP standards.
"EDGE Deployment Percentage" means, with respect to any DCS Market or
AWS market listed on Schedule II, a fraction the numerator of which is the
number of cell sites of DCS or AWS, as applicable, in such market in which EDGE
technology has been deployed and the denominator of which is the number of cell
sites of DCS or AWS, as applicable, in such market in which GSM technology has
been (or, in the case of DCS, is then required in accordance with Schedule 2.1
to be) deployed.
"EDGE Deployment Reports" has the meaning set forth in Section 3.1.
"Equity Interests" means capital stock, partnership interests, limited
liability company interests or other ownership or beneficial interests of any
person.
"ETSI" means the European Telecommunications Standardisation Institute.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Fair Market Value" means, with respect to any asset, as of the date of
determination, the cash price at which a willing seller would sell and a willing
buyer would buy such asset in a transaction negotiated at arm's length, each
being apprised of and considering all relevant facts, circumstances and factors,
and neither acting under compulsion, with the parties being unaffiliated third
parties acting without time constraints.
"Force Majeure Event" has the meaning set forth in Section 6.7.
"GPRS" means General Packet Radio Service, a wireless communications
technology based on GSM and defined by the relevant ETSI or 3GPP standards,
including EDGE if EDGE is implemented by DCS in accordance with Section 3.1.
"GSM" means Global System for Mobile communication, a wireless
communications technology defined by the relevant ETSI or 3GPP standards.
"GSM Covered Pops" means (i) with respect to any Comparable AWS
Markets, as of any date of determination, the number of Pops then served by AWS
GSM Systems in such Markets, and (ii) with respect to any Comparable DCS
Markets, as of any date of determination, the number of Pops then served by DCS
GSM Systems in such Markets.
"GSM/GPRS System" means a mobile wireless system using technology that
combines GSM for voice communications and GPRS for data communications.
"GSM Roaming Agreement" means the Roaming Agreement for GSM/GPRS of
even date herewith between AWS and DCS.
"Indemnified Person" is defined in Section 9.3(a).
"Indemnifying Person" is defined in Section 9.3(a).
"Licensed Pops" means, with respect to any person in any market, Pops
covered by any FCC license authorizing such person to provide mobile wireless
communications services in such market.
"Losses" is defined in Section 9.1.
"Major Competing Carrier" means Cingular, Sprint Corporation, Verizon
Wireless, T-Mobile USA, Inc. and Nextel Communications, Inc. and their
respective successors, and any joint venture or other combination of their
respective assets or businesses.
"New Technology" means UMTS and any other wireless hardware and/or
software technology other than TDMA, GSM, GPRS or EDGE.
"Overlap Markets" means those portions of the DCS Markets in which,
after giving effect to a Competitive Transaction, the Surviving Entity or its
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controlled affiliates own, manage, operate or control Competitive Systems that
provide mobile wireless communications services.
"Overlap Pops" means the Licensed Pops of DCS in any Overlap Markets.
"person" means an individual, a government or governmental subdivision
or agency, and any legal or commercial entity.
"Pops" means, with respect to any licensed area, the residents of such
area based on the most recent publication by Claritas Inc.
"Response" is defined in paragraph (c) of Article 8.
"Section 7.3(b) Event" means (i) any circumstance, event or transaction
following which a Major Competing Carrier, alone or as part of a group (as such
term is used in Section 13(d) and 14(d) of the Exchange Act and the regulations
thereunder), is the "beneficial owner" (as such term is used in Rules 13D-3,
13D-5 or 16A-1 under the Exchange Act) of more than 50% of the voting power of
the Voting Securities of DCS (on a fully diluted basis, treating Equity
Interests of DCS issuable upon the conversion, exchange or exercise of
convertible or exchangeable securities, or other rights to acquire Equity
Interests, as issued and outstanding) or otherwise has the power, acting alone,
to control DCS; or (ii) the sale of all or substantially all of DCS's stock,
business or assets (including through a merger or otherwise) to a Major
Competing Carrier.
"Senior Party Representatives" is defined in paragraph (b) of
Article 8.
A "subsidiary" of a specified person is an affiliate controlled by such
person directly, or indirectly through one or more intermediaries. ACC shall not
be considered a subsidiary of DCS for purposes of this Agreement.
"Surviving Entity" means, with respect to a Competitive Transaction,
the surviving entity or other person that as a result of such Competitive
Transaction owns, manages, operates or controls Competitive Systems.
"TDMA" means Time Division Multiple Access, a wireless communications
technology defined by the relevant Telecommunications Industry Association
standard. For the avoidance of doubt, TDMA does not include GSM, GPRS, EDGE,
UMTS or any other wireless communications technology.
"TDMA Covered Pops" means (i) with respect to any Comparable AWS
Markets, as of any date of determination, the number of Pops then served by AWS
TDMA Systems in such Markets, and (ii) with respect to any Comparable DCS
Markets, as of any date of determination, the number of Pops then served by DCS
TDMA Systems in such Markets.
"TDMA System" means a mobile wireless system using TDMA technology.
"Term" is defined in Section 7.1.
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"Transaction Pops" means the Licensed Pops in the markets that are
acquired by the Surviving Entity in a Competitive Transaction.
"UMTS" means Universal Mobile Telecommunications Service, a wireless
communications technology based on GSM and under development by 3GPP.
"User Interface" means the process, functional commands, and look and
feel by which a mobile wireless service subscriber operates and utilizes the
mobile wireless services and service features provided by a GSM/GPRS System,
including the sequence and detail of specific commands or service codes, the
detailed operation and response of subscriber equipment to the sequence of keys
pressed to effect subscriber equipment function, the response of subscriber
equipment to the activation of these keys or signals or data from the GSM/GPRS
System, the manner in which information is displayed on the screen of subscriber
equipment, and the use of announcement tones and messages.
"Voting Securities" means equity securities of a person having the
right to vote generally in the election of the directors (or persons performing
equivalent functions) of such person.
ARTICLE 2
GSM SYSTEMS
Section 2.1 Construction
DCS shall construct and operate facilities-based mobile wireless
telecommunications systems using EDGE-compatible GSM and GPRS technology (the
"DCS GSM Systems") in the DCS Markets in accordance with the construction plan
attached as Schedule 2.1. If DCS fails to construct any DCS GSM System in
substantial compliance with such construction plan, and as a result AWS
terminates its obligations under Article 4 with respect to any DCS Market in
accordance with Section 7.2, AWS and its affiliates shall have the right, on
commercially reasonable rates and other terms, to co-locate GSM/GPRS
telecommunications equipment on towers, in shelters, on rooftops or at other
facilities owned by DCS or its affiliates in such DCS Market.
Section 2.2 Interoperability
DCS shall at all times cause the DCS GSM Systems in the DCS Markets to
be technologically compatible in all material respects (including with respect
to switch-to-switch call handoffs) with the AWS GSM Systems in the Comparable
AWS Markets. Without limiting the generality of the foregoing, DCS shall at all
times cause the DCS GSM Systems in the DCS Markets to use substantially the same
User Interface used in the AWS GSM Systems in the Comparable AWS Markets, so
that the User Interface of the relevant DCS GSM Systems shall not differ, in a
manner that shall be material to subscribers, from the User Interface of the
relevant AWS GSM Systems. AWS shall from time to time notify DCS of changes to
the User Interface or other elements of the AWS GSM Systems in the AWS markets
listed on Schedule II, and DCS shall promptly, and in no event later than 120
days after delivery of any such notice, or such longer period as shall
reasonably be required on account of delays caused by Force Majeure
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Events or as the parties shall otherwise agree, implement such changes in the
DCS GSM Systems in the Comparable DCS Markets.
Section 2.3 Network Performance Standards
DCS shall at all times cause the DCS GSM Systems in the DCS Markets to
comply substantially with the network performance standards met by the AWS GSM
Systems in the Comparable AWS Markets. The initial network performance standards
for the DCS GSM Systems are set forth on Schedule 2.3. In any event, the
standards shall be limited by the measures of performance being achieved and
maintained by AWS in Comparable AWS Markets. AWS shall from time to time notify
DCS of new or modified network performance standards met by the AWS GSM Systems
in the AWS markets listed on Schedule II, and DCS shall promptly, and in no
event later than 120 days after delivery of any such notice, or such longer
period as shall reasonably be required on account of delays caused by Force
Majeure Events or as the parties shall otherwise agree, implement such changes
in the DCS GSM Systems in the Comparable DCS Markets. The support information
for AWS's compliance with these modified standards shall be provided to DCS.
Section 2.4 Core Features and Services
DCS shall at all times cause the DCS GSM Systems in the DCS Markets to
provide the core features and services provided by the AWS GSM Systems in the
Comparable AWS Markets. The initial core features and services for the DCS GSM
Systems are set forth on Schedule 2.4. AWS shall from time to time notify DCS of
new or modified core features or services provided to subscribers in the AWS
markets listed on Schedule II, and DCS shall promptly, and in no event later
than 120 days after delivery of any such notice, or such longer period as shall
reasonably be required on account of delays caused by Force Majeure Events or as
the parties shall otherwise agree, implement such changes in the DCS GSM Systems
in the Comparable DCS Markets.
ARTICLE 3
EDGE AND NEW TECHNOLOGIES
Section 3.1 EDGE
Promptly after AWS begins offering EDGE service in any of its markets
listed on Schedule II in connection with a nationwide launch that AWS expects to
complete within 90 days, AWS will give DCS notice thereof, and thereafter will
provide DCS with monthly reports ("EDGE Deployment Reports") of the EDGE
Deployment Percentage in each of the AWS markets listed on Schedule II. Within
90 days following the delivery of each EDGE Deployment Report, DCS shall deploy
EDGE technology, and provide EDGE service, in the DCS Markets such that the EDGE
Deployment Percentage in each DCS Market is equal to or greater than the EDGE
Deployment Percentage in the Comparable AWS Markets specified in such EDGE
Deployment Report. DCS shall provide AWS with evidence reasonably satisfactory
to AWS of DCS's deployment of EDGE in compliance with the preceding sentence.
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Section 3.2 New Technologies
AWS will offer to DCS in writing the option of being the preferential
roaming provider for AWS in the DCS Markets with respect to mobile wireless
services using each New Technology that AWS deploys during the Term. DCS will
have 30 days to elect to exercise any such option, whereupon the parties will
promptly meet to discuss the terms and conditions of a new construction and
roaming agreement relating to the New Technology. If the parties are unable to
agree on terms within 30 days after the commencement of discussions, DCS will
have no further rights, and AWS will have no further obligations, with respect
to such New Technology or any technology subsequently adopted by AWS.
ARTICLE 4
LIMITED EXCLUSIVITY
Section 4.1 Limited Exclusivity
(a) During the first three years of the Term and, if the parties agree
or DCS so elects in accordance with Article 8.1.1(b)(ii) of the GSM Roaming
Agreement, during the last two years of the Term, except as otherwise provided
herein, AWS shall not, and shall cause its controlled affiliates not to,
directly or indirectly, alone or jointly with any other person or entity,
acquire or hold an ownership interest in, manage, operate, control or otherwise
engage in, a business that provides or resells, or a license that facilitates or
enables the provision or resale of facilities-based mobile wireless services
using GSM, GPRS and (subject to Section 3.1) EDGE on any spectrum in any DCS
Market (such services being referred to herein as "Competitive Services").
(b) Notwithstanding the provisions of paragraph (a) above, AWS and its
affiliates may:
(i) subject to the provisions of paragraph (c) below, acquire,
hold, maintain and renew FCC licenses and mobile wireless
telecommunications facilities, to the extent necessary or advisable to
maintain and renew such licenses, including compliance with the
construction requirements, and satisfaction with the substantial
service requirement for license renewal expectancy, of applicable FCC
rules, and DCS shall cooperate with AWS, at AWS's request and expense,
in connection therewith;
(ii) acquire and hold ownership interests in any person (x)
that is not an affiliate of AWS, (y) to which AWS and its controlled
affiliates do not direct roaming traffic (in respect of Competitive
Services) on a priority basis with respect to DCS and its subsidiaries
and (z) that does not market Competitive Services (on a primary basis,
tagline basis or otherwise) under the "AT&T Wireless" brand or any
similar or successor brand used by AWS or its affiliates on a
substantially national basis;
(iii) continue and complete construction of, and operate and
provide service using, the GSM/GPRS cell sites set forth on Schedule
4.1, provided, that
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within 15 days following the date hereof, AWS shall remove from
Schedule 4.1 any cell site with respect to which either (a) AWS has not
commenced any development other than design, and has not incurred any
out-of-pocket expenses or financial obligations to third parties, or
(b) AWS has not, prior to July 11, 2003, executed a site lease,
provided, that DCS reimburses AWS for all out-of-pocket expenses or
third party financial obligations incurred by AWS in respect of such
site. Notwithstanding the foregoing, AWS shall not be required to
remove from Schedule 4.1 any GSM/GPRS cell site described in clause (b)
above if such site would provide contiguity or completion of coverage
between sites listed on Schedule 4.1. The parties will negotiate in
good faith, but without any obligation on either party to agree to, the
possible removal of additional sites from Schedule 4.1 subject to
reimbursement by DCS of costs incurred by AWS in respect thereof;
(iv) enter into a Competitive Transaction in accordance with
Section 4.2.
(c) AWS will give DCS reasonable advance written notice of deadlines
relating to construction and substantial service requirements with respect each
license held by AWS or its subsidiaries in the DCS Markets. DCS will have 15
days from receipt of any such notice to elect in writing to comply with such
requirements on behalf of AWS. If DCS makes such election with respect to a
license, the parties shall promptly execute and deliver mutually satisfactory
agreements providing for such compliance, in substantially the form of
comparable agreements that previously have been entered into by the parties or
their respective affiliates.
Section 4.2 Competitive Transactions
Section 4.1 shall not prohibit AWS and its affiliates from entering
into a merger, consolidation, joint venture, purchase, investment, exchange or
sale of assets, issuance or sale of securities, or other business combination
transaction, with a person unaffiliated with AWS, that results in the Surviving
Entity or its controlled affiliates owning, managing, operating or controlling
systems providing Competitive Services in one or more of the DCS Markets
("Competitive Systems") (any such transaction, subject to the next sentence,
being referred to as a "Competitive Transaction"); provided, that (i) upon
consummation of the Competitive Transaction, the number of Overlap Pops is less
than 25% of the number of Transaction Pops or (ii) within 180 days following
consummation of the Competitive Transaction, the Surviving Entity and its
controlled affiliates shall have ceased to own, manage, operate or control
sufficient Competitive Systems such that the number of Overlap Pops is then less
than 25% of the number of Transaction Pops. AWS will not expand, within the DCS
Markets, the footprint of any Competitive System that it retains.
Section 4.3 Limitations on Relief
Notwithstanding any provision hereof to the contrary, DCS shall not be
entitled to injunctive relief with respect to that portion of any proposed
Competitive Transaction, or
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any other provisions of Section 4.1(b), that relate to service areas located
outside the DCS Markets, and DCS's only remedy in respect of such provisions or
portion of the proposed Competitive Transaction shall be to seek monetary
damages from AWS. To the extent that any proposed Competitive Transaction or
other provisions of Section 4.1(b) relate to service areas located within the
DCS Markets, without prejudice to its other remedies, DCS shall be entitled to
injunctive relief with respect to such provisions or portion of the proposed
Competitive Transaction.
Section 4.4 AWS TDMA Cell Sites
Immediately following execution of this Agreement, AWS will cease new
construction of TDMA cell sites in any portion of its markets that overlap with
one or more DCS Markets (it being understood that AWS may continue to maintain
and operate the TDMA cell sites in operation on the date hereof, including
without limitation the cell sites listed in Schedule 4.4).
Section 4.5 Roadrunner Arrangements
AWS will release Cingular from its obligations to AWS to construct
GSM/GPRS Systems in the DCS Markets, as long as Cingular provides AWS with value
equivalent to the value to AWS of Cingular's performance of such obligations.
ARTICLE 5
ROAMING PREFERENCE
Section 5.1 Roaming Preference
(a) AWS, in its capacity as HPMN Operator (as defined in the GSM
Roaming Agreement), shall cause substantially all of its customers, when roaming
in any DCS Market, to normally seek GSM roaming service and GPRS roaming service
from DCS prior to seeking GSM roaming service or GPRS roaming service from any
other carrier other than Cingular and NPI Wireless; provided, that DCS shall
have constructed and shall be operating a GSM System in such DCS Market in
substantial compliance with the provisions of Article 2, and is otherwise in
substantial compliance with the provisions of the GSM Roaming Agreement.
(b) DCS, in its capacity as HPMN Operator, shall cause substantially
all of its customers, when roaming in any AWS market, to normally seek GSM
roaming service and GPRS roaming service from AWS prior to seeking GSM roaming
service or GPRS roaming service from any other carrier; provided, that AWS is in
substantial compliance with the provisions of the GSM Roaming Agreement.
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ARTICLE 6
OTHER AGREEMENTS
Section 6.1 Further Assurances
Each party will execute and deliver such further documents and take
such further actions as the other party may reasonably request consistent with
the provisions hereof in order to effect the intent and purposes of this
Agreement.
Section 6.2 Reporting Obligations
DCS and AWS shall provide the other party with quarterly reports on the
status of construction and operating metrics of the DCS GSM Systems in the DCS
Markets and the AWS GSM Systems in the Comparable AWS Markets, respectively, and
with such other reports as the other party may reasonably request and which are
reports regularly prepared by such party or may be prepared without material
cost or expense.
Section 6.3 Test Procedures
The parties shall use reasonable best efforts to complete, as soon as
practicable, all test procedures necessary in order to enable the parties to
provide Services (as defined in the GSM Roaming Agreement).
Section 6.4 Funding
DCS is solely responsible for financing all costs and expenses relating
to the performance of its obligations under this Agreement. Neither AWS nor any
of its affiliates shall have any responsibility for providing any financing or
assisting DCS in obtaining any financing.
Section 6.5 Compliance with Law
Each party will comply in all material respects with the FCC Rules and
all other applicable laws, rules and regulations in performing its obligations
under this Agreement.
Section 6.6 Confidentiality
(a) DCS and AWS agree that all aspects of the contents of this
Agreement shall be treated as confidential and that no information in respect of
the content of this Agreement shall be disclosed without the prior written
consent of both DCS and AWS except (i) as required by law or legal process, (ii)
to a party's employees who need to know same and such party's attorneys,
advisors, representatives, agents, lenders, insurers, and current or potential
investors (collectively, "Representatives"), (iii) in the Offering Memorandum
and such other disclosure documents as, in the good faith judgment of DCS's
outside legal counsel, are necessary to effect the Restructuring
("Reorganization Disclosure") and (iv) as necessary to implement this Agreement
and inform customers.
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(b) DCS and AWS hereby agree to treat all information exchanged between
them in connection with this Agreement (hereinafter referred to as
"Information") as confidential and agree not to disclose such Information in any
manner whatsoever, in whole or in part except as provided in this Section 6.6.
The other party shall not use any Information other than in connection with (i)
the discussions between them and any transactions resulting therefrom, (ii) for
the purpose of obtaining funds or insurance or in connection with any bona fide
business transaction, in which case the disclosing party shall advise the
lenders or insurance companies of such party's confidentiality obligation under
this Section 6.6 before disclosing the Information and (iii) Reorganization
Disclosure. Each party shall be liable in accordance with Article 9 to the other
party in respect of any unauthorized disclosure of Information made by its
Representatives to whom it has disclosed Information.
(c) In addition to the above, Information may be transmitted to
governmental, judicial or regulatory authorities, as may be required by any
governmental, judicial or regulatory authority, provided, that the party
transmitting such Information gives the other party reasonable notice and
opportunity to seek confidential treatment of such Information by any such
authority.
(d) For the purposes of this Agreement, Information shall not be
considered to be confidential if such Information is:
(A) in or passed into the public domain other than by
breach of this Article;
(B) known to a receiving party prior to the
disclosure by a disclosing party;
(C) disclosed to a receiving party without
restriction by a third party having the full right to
disclose; or
(D) independently developed by a receiving party to
whom no disclosure of confidential Information relevant to
such Information has been made.
(e) This Section 6.6 shall survive the termination of this Agreement
for a period of two years.
Section 6.7 Force Majeure
(a) Non-performance or defective performance of either party's
obligations pursuant to this Agreement or delay in performing same shall not
constitute a breach of this Agreement to the extent, and for as long as, it is
due to reasons outside such party's control (in each case a "Force Majeure
Event"), including, but not being limited to, governmental action, or
requirement of regulatory authority, acts of God, terrorism, riots, revolution,
lockouts, strikes, shortage of transportation, war, rebellion or other military
action, fire, flood, explosion, sabotage, nuclear incidents, earthquakes,
lightning, storms, sinkholes, epidemics, delays or non-performance of suppliers
or subcontractors, natural
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catastrophes, or any other unforeseeable obstacles that a party is not able to
overcome with reasonable efforts. The party prevented from fulfilling its
obligations shall on becoming aware of such Force Majeure Event inform the other
party in writing of such Force Majeure Event as soon as possible. If the Force
Majeure Event continues for more than six (6) consecutive months, either party
shall have the right to terminate the Agreement with immediate effect by written
notice.
(b) If the affected party fails to inform the other party of the
occurrence of a Force Majeure Event in accordance with Section 6.7(a) above,
then such party thereafter shall not be entitled to refer to such event as force
majeure as a reason for non-fulfillment, to the extent such party is
disadvantaged by such delay. This obligation does not apply if the Force Majeure
Event is known by both parties or the affected party is unable to inform the
other party due to the Force Majeure Event.
ARTICLE 7
TERM AND TERMINATION
Section 7.1 Term
The term of this Agreement (the "Term") shall commence on the date
hereof and, unless earlier terminated in accordance with this Article 7, shall
expire on the fifth anniversary of the date hereof.
Section 7.2 [Section intentionally omitted]
Section 7.3 Termination by AWS
So long as no material breach by AWS under this Agreement or the GSM
Roaming Agreement has occurred and is continuing:
(a) AWS may terminate its obligations under Articles 3, 4 and 5, and
Sections 6.2 and 6.3 (without affecting DCS's rights with respect to mobile
wireless services using TDMA), on five days' notice to DCS, upon a material
breach of DCS's obligations under (i) Section 2.2, 2.3 or 2.4, which breach
remains uncured 90 days after DCS has received written notice thereof or (ii)
Section 2.1 or 3.1, which breach remains uncured 30 days after DCS has received
written notice thereof.
(b) AWS may terminate its obligations under Articles 4 and 5, on 90
days' notice to DCS, in the event of a Section 7.3(b) Event.
Section 7.4 Termination by DCS
So long as no material breach by DCS under this Agreement or the GSM
Roaming Agreement has occurred and is continuing (except such a breach shall not
affect DCS's termination right under Section 7.4(b)):
(a) DCS may terminate its obligations under Articles 2, 3, 5, and
Sections 6.2, 6.3 and 6.4, on five days' notice to AWS, with respect to mobile
wireless services using
12
any technology, upon a material breach of AWS's obligations under Article 4 or 5
with respect to such technology, which breach remains uncured 90 days after AWS
has received written notice thereof.
(b) DCS may terminate its obligations under Articles 2, 3 and 5 on 90
days' written notice to AWS, with respect to mobile wireless services using any
technology, in the event of a Change of Control of AWS if the acquiring company
discontinues, or announces plans to discontinue, prior to expiration of the
Term, supporting or selling such technology.
(c) DCS may terminate its obligations under Articles 2, 3 and 5 on five
days' written notice to AWS, with respect to mobile wireless services using GSM,
GPRS and/or EDGE technology in any DCS Market, in the event that AWS terminates
its obligations under Section 4 or 5 above with respect to such technology in
such DCS Market, unless such termination by AWS is pursuant to Section 7.3(b) or
Section 8.1.1(b)(iii) of the GSM Roaming Agreement.
Section 7.5 Effect of Termination
Termination pursuant to Section 7.3 or 7.4 shall not relieve any party
of any liability which at the time of termination has already accrued to such
party or which thereafter may accrue in respect of any act or omission prior to
such termination, nor shall any such termination affect in any way the survival
of any right, duty or obligation of any party which is expressly stated
elsewhere in this Agreement to survive termination hereof. The provisions of
Articles 7, 8, 9 and 10 shall survive the termination of this Agreement for any
reason.
ARTICLE 8
DISPUTE RESOLUTION
(a) If a dispute arises out of or relating to this Agreement, or the
transactions contemplated hereby, or the construction, interpretation,
performance, breach, termination, enforceability or validity thereof, whether
such claim is based on rights, privileges or interests recognized by or based
upon contract, tort, fraud, misrepresentation, statute, common law or any other
legal or equitable theory, and whether such claim existed prior to or arises on
or after the date hereof (a "Dispute"), the dispute resolution processes set
forth in this Article 8 shall govern the resolution of such dispute.
(b) If a Dispute cannot be resolved by the executives having primary
managerial responsibility for the matter to which the Dispute pertains, the
parties shall attempt in good faith to resolve such Dispute promptly by
negotiation between executives who have authority to settle the Dispute and who
are at the level of the executives who have negotiated this Agreement ("Senior
Party Representatives").
(c) A party may provide any other party notice (a "Dispute Notice") of
any Dispute that has not been resolved in the normal course of business. Within
ten business days after delivery of the Dispute Notice, the receiving party
shall submit to each other
13
party a response (the "Response"). The Dispute Notice and the Response shall
each include (a) a statement setting forth the position of the party providing
such notice and a summary of arguments supporting such position, and (b) the
name and title of such party's Senior Party Representative and any other Persons
who will accompany the Senior Party Representative at the meeting at which the
parties will attempt to settle the Dispute. Within 30 business days after
delivery of the Dispute Notice, the Senior Party Representatives of the parties
shall meet at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to attempt to resolve the Dispute. All
reasonable requests for information made by one party to another will be
honored.
(d) If the Dispute has not been resolved within 50 business days after
delivery of the Dispute Notice, or if the parties fail to meet within 30
business days after delivery of the Dispute Notice, any party may initiate
arbitration of the Dispute as provided below. If no party initiates arbitration
within 60 business days after delivery of the Dispute Notice, then the parties
shall automatically be released from any and all liability for the Dispute.
(e) All negotiations pursuant to this section shall be treated as
compromise and settlement negotiations. Nothing said or disclosed, nor any
document produced, in the course of such negotiations that is not otherwise
independently discoverable shall be offered or received as evidence or used for
impeachment or for any other purpose in any current or future arbitration. The
parties agree that all communications and negotiations between the parties
during the dispute resolution process, any settlements agreed upon during the
dispute resolution process and any information regarding the other party
obtained during the dispute resolution process (that are not already public
knowledge) are confidential and may be disclosed only to employees and agents of
the parties who shall have a "need to know" the information and who shall have
been made aware of the confidentiality obligations set forth in this Article 8,
unless the party is required by law to disclose such information.
(f) If the Dispute is not resolved as provided in paragraphs (b)
through (d) above, then any party may initiate arbitration proceedings by
providing each other party notice of such initiation of arbitration. The Dispute
shall then be settled by arbitration in accordance with the CPR Non-Administered
Arbitration Rules in effect on the date hereof, by a panel of three arbitrators.
Each Party shall select one of the three arbitrators and the two arbitrators so
chosen shall select the third arbitrator. The arbitrators shall be governed by
the United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be chosen by the three
arbitrators. The arbitrators shall be empowered to award only damages that are
recoverable under the provisions of Article 9, and each party hereby irrevocably
waives any right to recover any other damages with respect to any Dispute. The
arbitrators shall not order pre-hearing discovery of documents or the taking of
depositions, although the arbitrators may compel the attendance of witnesses and
the production of documents at the hearing to the extent permitted by the CPR
Non-Administered Arbitration Rules.
14
(g) If a party does not provide a Dispute Notice within one year
following the time the party first knows of the existence of the acts or
omissions that give rise to the Dispute, the party shall be forever estopped
from asserting the Dispute against any other party.
(h) The reasonable out-of-pocket costs (including reasonable attorneys'
fees and expenses) of the prevailing party and the fees of the arbitrators in
any arbitration proceeding pursuant to this Article 8 shall be paid by the other
party. The arbitrators shall determine which party is the prevailing party for
purposes of this paragraph, and shall include such determination in their award.
If the arbitrators determine that neither party is the prevailing party for
purposes of this paragraph, then each party shall bear its own costs and
expenses, including attorneys' fees and expenses, and the parties shall share
equally the fees of the arbitrators.
(i) Notwithstanding the foregoing, but subject to Section 4.3, nothing
in this Agreement shall preclude the parties from seeking injunctive or other
equitable relief from a court with regard to any breach of this Agreement.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification by DCS
DCS shall indemnify and hold harmless AWS and its affiliates, and their
respective members, managers, officers, employees, and agents and/or the legal
representatives of any of them (each, a "AWS Indemnified Party"), against all
liabilities and expenses (including amounts paid in satisfaction of judgments,
in compromise, as fines and penalties, and as counsel fees) (collectively
"Losses") incurred by them that arise out of or result from (a) any
representation or warranty of DCS contained in this Agreement being untrue in
any material respect as of the date on which it was made or (b) any material
default by DCS or any of its affiliate in the performance of their respective
obligations under this Agreement, except to the extent that any such Losses
arise out of or result from the gross negligence or willful misconduct of AWS.
Section 9.2 Indemnification by AWS
AWS shall indemnify and hold harmless, DCS, its affiliates, and its
members, managers, officers, employees, and agents and/or the legal
representatives of any of them (each, a "DCS Indemnified Party"), against all
Losses incurred by them that arise out of or result from (a) any representation
or warranty of AWS contained in this Agreement being untrue in any material
respect as of the date on which it was made or (b) any material default by AWS
or any of its affiliates in the performance of their respective obligations
under this Agreement, except to the extent that any such Losses arise out of or
result from the gross negligence or willful misconduct of DCS.
15
Section 9.3 Procedures
(a) The terms of this Section 9.3 shall apply to any claim (a "Claim")
for indemnification under the terms of Sections 9.1 and 9.2. The applicable AWS
Indemnified Party or DCS Indemnified Party (each, an "Indemnified Party") shall
give prompt written notice of such Claim to the indemnifying party hereunder
(the "Indemnifying Party"), which may assume the defense thereof, provided that
any delay or failure to so notify the Indemnifying Party shall relieve the
Indemnifying Party of its obligations hereunder only to the extent, if at all,
that it is prejudiced by reason of such delay or failure: The Indemnified Party
shall have the right to approve any counsel selected by the Indemnifying Party
(Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP and Xxxxxxx & Xxxxxx, LLP being deemed
acceptable) and to approve the terms of any proposed settlement (unless such
settlement provides only, as to the Indemnified Party, the payment of money
damages actually paid by the Indemnifying Party). The Indemnifying Party shall
advance to the Indemnified Party any of its reasonable attorneys' fees and other
costs and expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advancement, that in the event he or it receives any such advance, such
Indemnified Party shall reimburse the Indemnifying Party for such fees, costs,
and expenses to the extent that it shall be determined that he or it was not
entitled to indemnification under this Article 9. The right accruing to an
Indemnified Party under this Article 9 shall not exclude any other right to
which it or he may be lawfully entitled. Notwithstanding any of the foregoing to
the contrary, the provisions of this Article 9 shall not be construed so as to
provide for the indemnification of any Indemnified Party for any liability to
the extent (but only to the extent) that such indemnification would be in
violation of applicable law or such liability may not be waived, modified, or
limited under applicable law, but shall be construed so as to effectuate the
provisions of this Article 9 to the fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of
a Claim, the Indemnifying Party will keep the Indemnified Party advised as to
all material developments in connection with such Claim, including, but not
limited to, promptly furnishing to the Indemnified Party copies of all material
documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party, within ten business days
after receiving written notice of any such Claim, fails to assume the defense
thereof, the Indemnified Party shall have the right, subject to the Indemnifying
Party's right to assume the defense pursuant to the provisions of this Article
9, to undertake the defense, compromise or settlement of such Claim for the
account of the Indemnifying Party.
(d) Notwithstanding anything herein to the contrary, neither party
shall have any liability hereunder for consequential or punitive damages, even
if apprised of the possibility of such damages.
16
ARTICLE 10
MISCELLANEOUS
Section 10.1 Entire Agreement
This Agreement and the GSM Roaming Agreement, together with any
annexes, schedules and exhibits hereto and thereto, contain the entire agreement
and understanding of the parties relating to the subject matter hereof and
thereof, and supersede all prior negotiations, proposals, offers, agreements and
understandings (written or oral) relating to such subject matter.
Section 10.2 Amendment; Waiver
Neither this Agreement nor any provision hereof may be amended or
modified except in a writing signed by each of the parties. No failure or delay
of any party in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce any such right
or power, preclude any other further exercise thereof or the exercise of any
other right or power. No waiver by any party of any departure by any other party
from any provision of this Agreement shall be effective unless the same shall be
in a writing signed by the party against which enforcement of such waiver or
consent is sought, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given. No
notice or similar communication by any party to another shall entitle such other
party to any other or further notice or similar communication in similar or
other circumstances, except as specifically provided herein.
Section 10.3 Specific Performance
Subject to Section 4.3, the parties acknowledge that money damages may
not be an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, in an arbitration or a court of competent
jurisdiction, to the extent permitted hereunder, apply for specific performance
or injunctive or other relief as such arbitration or court may deem just and
proper in order to enforce this Agreement or to prevent violation hereof and, to
the extent permitted by applicable law, each party waives any objection to the
imposition of such relief.
Section 10.4 Remedies Cumulative
All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall, unless
otherwise specifically provided herein, be cumulative and not alternative, and
the exercise or beginning of the exercise of any right, power or remedy thereof
by a party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
17
Section 10.5 Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns. No party may
assign its rights or delegate its duties under this Agreement without the
written consent of the other party, except that DCS shall have the right to
transfer or assign this Agreement in whole to a Subsidiary of DCS that directly
or indirectly owns, operates and controls wireless communications systems in the
DCS Markets and does not own, manage, operate or control any other wireless
communications systems.
Section 10.6 No Third Party Beneficiaries
This Agreement is entered into solely for the benefit of the parties
and no person other than the parties, their respective successors and permitted
assigns, their affiliates to the extent expressly provided herein, and (to the
extent provided in Article 9) the persons entitled to indemnification pursuant
to Article 9, may exercise any right or enforce any obligation hereunder.
Section 10.7 Further Assurances
Each party will execute and deliver such further documents and take
such further actions as any other party may reasonably request consistent with
the provisions hereof in order to effect the intent and purposes of this
Agreement.
Section 10.8 Notices
All notices or other communications hereunder shall be in writing and
shall be deemed to have been duly given or made (i) upon delivery if delivered
personally (by courier service or otherwise) or (ii) upon confirmation of
dispatch if sent by facsimile transmission (which confirmation shall be
sufficient if shown on the journal produced by the facsimile machine used for
such transmission), and all legal process with regard hereto shall be validly
served when served in accordance with applicable law, in each case to the
applicable addresses set forth below (or such other address as the recipient may
specify in accordance with this Section):
If to DCS:
Xxxxxx Cellular Systems, Inc.
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
18
If to AWS:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Section 10.9 Governing Law
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of
Delaware, without regard to principles of
conflicts of law.
Section 10.10 Severability
If any term of this Agreement or the application thereof to any party
or any circumstance shall be held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such term to the other party
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by applicable law, so long as the economic and legal
substance of this Agreement and the actions contemplated hereby is not affected
in any manner adverse to any party.
Section 10.11 Independent Contractors
The parties are independent contractors, and this Agreement does not
create a partnership or agency relationship between the parties, or any other
relationship between the parties except as expressly set forth herein. No party
shall have any right or authority to assume, create or incur any liability or
obligation, express or implied, in the name or on behalf of any other party.
Section 10.12 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one
instrument.
19
Section 10.13 Construction
Each of the parties hereto acknowledges that it has reviewed this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments hereto. The captions
used herein are for convenience of reference only and shall not affect the
interpretation or construction hereof. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the context may require. Unless otherwise specified, (a) the terms "hereof,"
"herein" and similar terms refer to this Agreement as a whole, (b) references
herein to Articles or Sections refer to articles or sections of this Agreement
and (c) the word "including" connotes the words "including without limitation"
unless the context requires otherwise.
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By /s/ Xxxx Xxxxxxx
-------------------------
Name:
Title:
XXXXXX CELLULAR SYSTEMS, INC.
By /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name:
Title:
SCHEDULE I
DCS MARKETS
Cumberland MSA
Xxxx MSA
Hagerstown MSA
Anchorage MSA
XX-00X XXX
XX-00X XXX
XX-00 XXX
XX-00X RSA
KS-05 RSA
MD-01 RSA
MD-02 RSA
XX-00 XXX
XX-00 XXX
XX-00 XXX
XX-00 XXX
XX-00X XXX
XX-00 XXX
XX-00X XXX
XX-00 XXX
OK-05A RSA
OK-06 RSA
XX-00X XXX
XX-00X XXX
XX-00 XXX
XX-00 XXX
XX-00 XXX
XX-00 RSA
Erie MSA
Xxxxxx MSA
Youngstown MSA
NY-03 RSA
XX-00 XXX
XX-00 XXX
XX-00 XXX
PA-06 RSA
PA-07 RSA
SCHEDULE II
COMPARABLE MARKETS
*
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
SCHEDULE 2.1
CONSTRUCTION PLAN
DCS will install GSM/GPRS equipment in the following existing sites so
as to provide coverage that is substantially comparable to the TDMA
coverage now provided by these sites.
2003 Q2
*
2003 Q3
*
2003 Q4
*
2004 Q1
*
2004 Q3
*
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
SCHEDULE 2.3
NETWORK PERFORMANCE STANDARDS
COMPREHENSIVE QUALITY METRICS
*
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
SCHEDULE 2.4
CORE FEATURES AND SERVICES
*
----------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
SCHEDULE 4.1
OVERLAP MARKETS
*
---------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
SCHEDULE 4.4
TDMA CELL SITES
None
