EXHIBIT 99.3
WHOLESALE AGREEMENT
This WHOLESALE AGREEMENT ("Agreement") is made as of the 18th day of
August, 2003 (the "Execution Date"), to be effective as of the date of the
Shareholder Approval (as defined in the License Purchase Agreement) (the
"Effective Date"), by and between BellSouth Mobility LLC, a Delaware limited
liability company ("Cingular"), and Sunshine PCS Corporation, a Delaware
corporation ("Sunshine") (each a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, pursuant to the Licenses set forth on Exhibit A hereto (the
"Licenses") granted by the Federal Communications Commission ("FCC"), Sunshine
intends to sell Revenue Minutes over a personal communications service ("PCS")
system within the Tallahassee, Panama City and Ocala Florida Basic Trading Areas
("BTAs");
WHEREAS, Cingular desires to obtain the right to resell the Broadband PCS
Service (as defined herein) provided by Sunshine; and
WHEREAS, pending the closing of the purchase contemplated by the License
Purchase Agreement, the Parties desire to enter into this written agreement
setting forth the terms of their agreement with respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings herein contained, the Parties hereto agree as follows:
ARTICLE 1. Definitions
The terms set forth below when used herein shall have the following meanings:
"Affiliate" of a Party shall mean: (i) any other entity directly, or
indirectly through one or more intermediaries, controlling, controlled by or
under common control with such Party; or (ii) any other entity in which such
Party beneficially owns a majority of the outstanding capital stock or equity
interests.
"Bankruptcy" shall mean with respect to either Party hereto: (i) such Party
making an assignment for the benefit of creditors or admitting in writing its
inability to pay its debts when due; (ii) the commencement by or against such
Party of any liquidation, dissolution, bankruptcy, reorganization, insolvency or
other proceeding for the relief of financially distressed debtors; or the
appointment for such Party, or a substantial part of such Party's assets, of a
receiver, liquidator, custodian or trustee; and if any of the events referred to
in this clause (ii) occur involuntarily, the failure of same to be dismissed,
stayed or discharged within forty-five (45) days; or (iii) the entry of an order
for relief against such Party under Title 11 of the United States Bankruptcy
Code.
"Broadband PCS Service" shall mean the provision of basic mobile and fixed
radio telephone PCS service utilizing licensed frequencies in the 1850-1990 MHz
bands.
"Cell Sites" shall mean: (a) cell site towers, fixtures, base stations and
equipment; (b) microwave towers, fixtures and equipment; (c) transmitting or
receiving equipment; (d) antennae; (e) equipment or facilities over which
Traffic is carried between cell sites and the associated Switch; and (f) any
other hardware or software and ancillary and related equipment and facilities
used in connection with items (a) through (e) above. The term Cell Sites shall
not include any Switch or FCC Licenses.
"CPNI" shall mean Customer Proprietary Network Information as defined in
the Communications Act of 1934, as amended (currently at 47 U.S.C. ss. 222).
"Final Order" with respect to a Governmental Body means an action taken or
order issued by a Governmental Body as to which: (i) no request for stay of the
action or order is pending, no such stay is in effect, and, if any deadline for
filing any such request is designated by statute or regulation, it has passed;
(ii) no petition for rehearing or reconsideration of the action or order, or
protest of any kind, is pending before the Governmental Body, and the time for
filing any such petition or protest is passed; (iii) the Governmental Body does
not have the action or order under reconsideration or review on its own motion,
and the time for such reconsideration or review has passed; and (iv) the action
or order is not then under judicial review, there is no notice of appeal or
other application for judicial review pending, and the deadline for filing such
notice of appeal or other application for judicial review has passed.
"FCC Rules" means the requirements or prohibitions contained at the
relevant time in all applicable laws (including the Communications Act of 1934,
as amended), and in all applicable rules, regulations, decisions, orders, and
policies of the FCC, or of any other relevant governmental authority with
jurisdiction over the grant of the License or the operation of the facilities or
services to be provided under this Agreement.
"Governmental Body" shall mean any foreign, federal, state or local
government or any court, tribunal, administrative agency or commission or
governmental or other regulatory authority or agency.
"GSM Standard" shall mean the Global System for Mobile Communications, a
"time division-based" wireless telecommunications standard as in use as of the
date of this Agreement and as such standard evolves, including General Packet
Radio Service (GPRS) and Enhanced Data Rates for GSM Evolution (EDGE).
"Losses" shall mean any out-of-pocket loss as a result of demands, claims,
payments, obligations, recoveries, deficiencies, fines, penalties, interest,
assessments, actions, causes of action, suits, liabilities, costs, expenses,
reasonable attorney's fees and expenses, attorney's fees and expenses necessary
to enforce the right to indemnification hereunder, and interest on any amount
payable to a third party as a result of the foregoing.
"Material Breach" shall mean a material breach of any representation,
warranty, covenant or other agreement of either Party.
"Number" shall mean the ten (10) digit telephone number assigned to a
subscriber to provide access to Broadband PCS Service and related services.
Numbers shall at all times be the property of the Party assigning the Number,
and such assigning Party may require the return or exchange of such Numbers from
time to time in the conduct of its business.
"PCS System" shall mean the Cell Sites and the Switch owned, leased or
otherwise controlled by Cingular to provide Broadband PCS Service utilizing the
GSM Standard within the BTAs.
"PSTN" shall mean the landline public switched telephone network.
"Revenue Minute" shall mean, for the PCS System, a minute of use of revenue
generating Traffic rounded up to the nearest sixty (60) second increment. This
term shall not include non-revenue generating Traffic such as testing, employee
usage, and control signaling. "Revenue Minutes" is the plural of Revenue Minute.
"Subscriber" shall mean the end-user or retail customer of any Broadband
PCS Service. "Subscribers" is the plural of Subscriber.
"Switch" shall mean all of Cingular's switching equipment used to provide
GSM Standard service to the BTAs including, without limitation: (a) all related
hardware, software, and ancillary and related equipment and facilities required
for such switching equipment to operate in accordance with its specifications;
(b) all features, functions, and capabilities of the switching equipment; and
(c) all equipment or facilities over which Traffic is carried between the
switching equipment and the PSTN or any other network. The term Switch shall not
include any Cell Sites or FCC Licenses. "Switches" is the plural of Switch.
"System Access Agreement" shall mean the System Access and Services
Agreement entered into between Sunshine and Cingular as of even date herewith.
"Traffic" shall mean with respect to a PCS system, collectively, voice,
data and associated electronic signals carried on such PCS system, and with
respect to a Switch, collectively, voice, data and associated electronic signals
carried from a PCS system and delivered to the Switch for switch processing.
ARTICLE 2. WHOLEsale
2.1. Wholesale. Cingular shall purchase Revenue Minutes for resale from
Sunshine and shall pay for such Revenue Minutes in accordance with Schedule A.
2.2. Availability of Service.
(a) Subject to FCC Rules, Sunshine shall be obligated to provide Revenue
Minutes to Cingular under this Agreement only if Sunshine is able to obtain,
retain, install, and maintain suitable facilities and rights for the provision
of such Revenue Minutes.
(b) Sunshine's obligation to provide Revenue Minutes under this Agreement
shall be limited to areas where Sunshine provides Revenue Minutes pursuant to
the License, and Sunshine shall provide Revenue Minutes to Cingular on a
non-discriminatory basis.
2.3. Roaming, Toll, Directory Assistance, and Operator Services. Cingular
shall provide its own roaming services, toll services, directory assistance,
numbering and operator services.
ARTICLE 3. Rights and Obligations of Sunshine and Cingular
3.1. Billing Information.
(a) Upon Cingular's request, Sunshine shall provide to Cingular detailed
billing information in a commercially standard electronic format. Cingular shall
be responsible for converting such information into bills for its Subscribers.
Subject to any separate written agreement between the Parties, Sunshine shall
have no responsibility to arrange or manage production of Cingular's bills.
(b) When Cingular receives any complaint from its Subscribers regarding or
in connection with a xxxx furnished by Cingular under the terms of the preceding
paragraph, Cingular will report such complaint to Sunshine only upon reasonable
verification that the source of the complaint is fairly traceable to reasons
other than an error in arranging or managing production of the subject xxxx.
Upon receiving the report of such complaint, Sunshine shall furnish to Cingular,
as soon as practicable but in all cases within a period of seven (7) business
days, such data, information, or materials relating to the subject matter of the
complaint sufficient for Cingular, in its reasonable judgment, to verify the
accuracy of the billing information furnished by Sunshine under the terms of the
preceding paragraph and to resolve the complaint.
3.2. Equipment. Cingular shall ensure that any equipment utilized by its
Subscribers in connection with Sunshine's Broadband PCS Service shall at all
times meet industry standards for compatibility with Broadband PCS Service,
including any Sunshine requirements for compatibility with upgraded facilities
and all of the FCC Rules and other applicable regulatory requirements.
3.3. Marketing and Customer Service.
(a) Obligations of Cingular. Cingular shall act in all respects on its own
account, and shall be solely responsible for any credit verification, deposits,
billing, collection, consolidation, rebilling, customer billing complaints, toll
calls, bad debts and fraudulent use by any Subscriber of any Number assigned to
or held by Cingular.
(b) Single Point of Contact. Cingular shall be the single point of contact
for its Subscribers with regard to the Broadband PCS Service and related
services and other services and products that such Subscribers have purchased
from Cingular or wish to purchase from Cingular. Cingular shall establish
telephone numbers and mailing addresses at which Cingular's Subscribers and
other persons may communicate with Cingular, and Cingular shall advise its
Subscribers and other persons who may wish to communicate with Cingular of these
telephone numbers and mailing addresses. It is understood and agreed that
Sunshine has no obligation to Cingular's Subscribers whatsoever in handling
service or billing inquiries.
(c) Trouble Reporting. When Cingular receives any complaints regarding or
in connection with the Broadband PCS Service or related services furnished by
Cingular to its Subscribers as contemplated by this Agreement, Cingular will
report any complaints to Sunshine only upon reasonable verification that the
source of the complaint is fairly traceable to reasons other than the misuse or
malfunctioning of the handset or the failure of such handset to meet the
technical standards for compatibility with the Broadband PCS Service as
contemplated by this Agreement.
(d) Dealing with the Public. Each Party and its agents shall be governed in
all dealings with members of the public by the highest standards of honesty,
integrity and fair dealings, and shall do nothing which would tend to discredit,
dishonor, reflect adversely upon or in any manner injure the reputation of the
other Party or any agent thereof. Each Party shall refrain, and shall cause its
agents to refrain, from any business practice or promotional activity which may
be injurious or detrimental to the other Party or its Affiliates; provided,
however, that any Party's competition with the other Party for Subscribers and
all other customers in and of itself shall not be inconsistent with such Party's
obligations under this Section.
3.4. Facilities. No provision of this Agreement shall be construed as
vesting in Cingular any control or ownership interest whatsoever in any
facilities or operations of Sunshine, including the License.
3.5. Disclosure of Information. The Parties will implement commercially
reasonable measures to ensure that competitive or sensitive information relating
to the separate business operations of one Party are not inadvertently disclosed
to the other Party. In the event, however, such information is inadvertently
received, the receiving Party will take commercially reasonable and appropriate
steps to prohibit the disclosure or use of any such information that may be
inadvertently obtained as a result of the performance of this Agreement to any
employee or agent of such Party or an Affiliate thereof involved in any manner
with the separate business operations of the receiving Party or any third party.
ARTICLE 4. Fees and Charges
4.1. Fees and Charges. In consideration of the wholesale and other rights
set forth in this Agreement, Cingular shall pay to Sunshine all applicable fees
and charges set forth in Schedule A attached hereto (collectively "Charges").
4.2. Billing and Payment. Sunshine shall, not later than twenty (20)
calendar days after the last day of each month during the term of this Agreement
generate and provide to Cingular an itemized statement listing Charges incurred
by Cingular during the preceding month for services rendered hereunder. Payment
of the billed Charges shall be due in immediately available United States funds
on the tenth (10th) day of the month following the date of such statement,
except as provided in Section 4.3.
4.3. Disputed Charges. If Cingular has a bona fide dispute regarding any
amount of the Charges billed by Sunshine, the matter will be treated as a
Dispute for purposes of Article 11 of this Agreement and resolved in accordance
with such Article 11.
4.4. Late Fees. Any undisputed Charges not paid when due shall accrue
interest from the date such Charges were due until paid in full at the lesser of
1.5 percent per month or the maximum rate permitted by applicable law.
4.5. Tariffs. In the event that any of the Broadband PCS Service or related
services or the charges made therefore are currently subject, or at any time
become subject, to any federal, state, or local regulation or tariff, then the
terms and conditions of this Agreement shall be deemed amended to conform to any
conflicting terms and conditions in effect under such regulation or tariff. All
non-conflicting terms and conditions of this Agreement shall remain valid and
effective.
4.6. Revenue Accounting. The Parties shall cooperate in good faith to
configure and program the Switch, maintain records and take other reasonable
steps to ensure that each Party's Revenue Minutes are fairly and appropriately
calculated.
ARTICLE 5. Term of Agreement; Termination
5.1. Term. Except as otherwise set forth herein, the term of this Agreement
shall be effective as of the Effective Date and shall continue in full force and
effect until the earlier to occur of the Closing under the License Purchase
Agreement or twenty-four months after the Effective Date or until the Agreement
is otherwise terminated as provided herein. Notwithstanding anything to the
contrary in this Agreement, Cingular may terminate this Agreement upon thirty
(30) days prior written notice to Sunshine; provided that in such event, the
System Access Agreement shall terminate on the same date as this Agreement.
5.2. Effect of Termination. In the event that this Agreement shall be
terminated pursuant to this Article 5, all obligations under this Agreement
shall terminate and be of no further effect, except that (a) this Section 5.2,
Article 6, Article 7, Article 8, Article 11 and Article 12 shall survive any
such termination and (b) no such termination shall relieve the breaching Party
from any liability resulting from any breach by that party of its obligations
under this Agreement.
ARTICLE 6. Confidentiality
Each of the Parties hereto hereby covenants and agrees that, during the
term of this Agreement and thereafter, neither it, nor any of its employees,
agents, officers, or directors, will at any time make use of, divulge, or
disclose to any person, firm, or corporation any confidential or proprietary
information about the other Party, its business, financial condition,
operations, customers, Subscribers (including, without limitation, CPNI and any
information concerning customer or Subscriber names, addresses, telephone
numbers, or service usage), or otherwise, whatever the source of such
confidential or proprietary information; provided, however, that this
confidentiality agreement shall not apply to information that is in the public
domain through no fault or wrongful act of the Party desiring to make use of,
divulge, or disclose such. Each Party agrees that such confidential or
proprietary information concerning the other Party shall only be disclosed to
its employees who have a valid business reason to know such information in
furtherance of the provisions of this Agreement, and then only to the extent
required for the performance of such employee's duties in furtherance of the
provisions of this Agreement. A document need not be marked "confidential" or
"proprietary" or otherwise to be considered confidential or proprietary if it
contains the type of information described above or the content and context of
the information is indicative of a desire to maintain confidentiality. Nothing
herein shall restrict the right of either Party to disclose confidential or
proprietary information which is ordered to be disclosed pursuant to judicial or
other lawful governmental action, but only to the extent so ordered, or as
otherwise required by applicable law or regulation. If either Party is served
with process to obtain any confidential or proprietary information or customer
or subscriber records of the other Party, that Party shall immediately notify
the other Party and permit the other Party to conduct the defense against the
disclosure. Upon request or termination of this Agreement, whichever is
earliest, each Party shall return to the others all confidential or proprietary
information concerning the other which exists in written form. Each of the
Parties acknowledges and confirms that any failure on its part to adhere
strictly to the terms and conditions of this paragraph is likely to cause
substantial and irreparable injury to the other Party. Accordingly, each Party
confirms and agrees that, in addition to all other remedies to which the other
Party may be entitled under this Agreement or at law or in equity, the other
Party shall be entitled to specific performance and other equitable relief,
including temporary and permanent injunctive relief to enforce the provisions of
this paragraph. This Article shall survive the termination or expiration of this
Agreement with respect to any confidential or proprietary information disclosed
by one Party to another while the Agreement was in effect. In the event of a
conflict between the terms of this Article 6 and any confidentiality or
nondisclosure agreement entered into in connection with the System Access
Agreement, the prevailing terms shall be those that provide the greatest degree
of protection to the disclosing party's confidential or proprietary information.
ARTICLE 7. Indemnification
7.1. Indemnification by Sunshine. Sunshine shall indemnify, protect, and
hold harmless Cingular, its Affiliates and their respective directors, officers,
agents and employees (collectively "Cingular Indemnified Parties") from and
against any and all Losses, whether or not litigation is commenced, imposed in
any manner upon, asserted against or incurred by such Cingular Indemnified
Parties to the extent such Losses are in connection with or arising from
Sunshine's breach of any obligations pursuant to this Agreement.
7.2. Indemnification by Cingular. Cingular shall indemnify, protect, and
hold harmless Sunshine, its Affiliates and their respective directors,
officers, agents and employees (collectively "Sunshine Indemnified Parties")
from and against any and all Losses, whether or not litigation is commenced,
imposed in any manner upon, asserted against or incurred by such Sunshine
Indemnified Parties to the extent such Losses are in connection with or arising
from Cingular's breach of any obligations pursuant to this Agreement.
7.3. Notice of Claims; Calculation of Losses.
(a) Any Sunshine Indemnified Party or Cingular Indemnified Party (the
"Indemnified Party") seeking indemnification under this Section 7.3 shall give
promptly to the Party obligated to provide indemnification to such Indemnified
Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable
detail the facts giving rise to any claim for indemnification under this Article
7 and shall include in such Claim Notice (if then known) the amount or the
method of computation of the amount of such claim, and a reference to the
provision of this Agreement upon which such claim is based.
(b) If the indemnification claim involves a Third Party Claim (as defined
herein), the procedures set forth in Section 7.4 hereof shall be observed by the
Indemnified Party and the Indemnitor.
(c) If the indemnification claim involves a matter other than a Third Party
Claim, the Indemnitor shall have thirty (30) business days to object to such
indemnification claim by delivery of a written notice of such objection to the
Indemnified Party specifying in reasonable detail the basis for such objection.
Failure to timely so object shall constitute a final and binding acceptance of
the indemnification claim by the Indemnitor and the indemnification claim shall
be paid in accordance with Section 7.3(d) hereof. If an objection is timely
interposed by the Indemnitor, then the Indemnified Party and the Indemnitor
shall negotiate in good faith for a period of twenty (20) business days from the
date (such period is hereinafter referred to as the "Negotiation Period") the
Indemnified Party receives such objection. After the Negotiation Period, if the
Indemnitor and the Indemnified Party still cannot agree on an indemnification
claim, the Indemnitor and Indemnified Party shall jointly submit the dispute
concerning such indemnification claim for resolution as provided in Article 10
below.
(d) Upon determination of the amount of an indemnification claim that is
binding on both the Indemnitor and the Indemnified Party, the Indemnitor shall
pay the amount of such indemnification claim by wire transfer within ten (10)
business days of the date such amount is determined.
7.4. Third Party Claims.
(a) In the event a claim, suit or proceeding by a third party that is not
an Affiliate of a Party to this Agreement (for which indemnification is
available under this Agreement) is made or filed against any Indemnified Party
(a "Third Party Claim"), such Indemnified Party shall promptly after the receipt
of written notice of such claim, suit or proceeding notify the Indemnitor in
writing of such claim, suit or proceeding and thereafter the Indemnified Party
shall promptly deliver to the Indemnitor copies of all notices and documents
(including court papers) received by the Indemnified Party relating to the Third
Party Claim; provided, that the failure of the Indemnified Party to give timely
notice of any such claim, suit or proceeding or to make timely delivery of any
such notices or documents shall not relieve the Indemnitor of its
indemnification obligations with respect to such claim, suit or proceeding
except to the extent that such Indemnitor has been prejudiced thereby.
(b) In the event of the initiation of any legal proceeding, claim or demand
against the Indemnified Party by a third party for which indemnification is
sought hereunder, the Indemnitor shall have the sole and absolute right after
the receipt of notice, at its option and at its own expense, to be represented
by counsel of its choice and to control, defend against, negotiate, settle or
otherwise deal with such proceeding, claim or demand; provided, however, that
the Indemnified Party may, at its election, participate in the defense of any
such proceeding, claim or demand through counsel of its own choice, but the fees
and expenses of such counsel shall be at the expense of the Indemnified Party,
unless the Indemnified Party shall have been advised by such counsel that there
may be one or more legal defenses available to it that are different from or in
addition to those available to the Indemnitor (in which case, if the Indemnified
Party notifies the Indemnitor in writing that it elects separate counsel at the
expense of the Indemnitor, the Indemnitor shall not have the right to assume the
defense of such action on behalf of the Indemnified Party with respect to such
defenses). The Parties hereto agree to cooperate fully with each other in
connection with the defense, negotiation or settlement of any such legal
proceeding, claim or demand. To the extent the Indemnitor elects not to defend
such proceeding, claim or demand, and the Indemnified Party defends against or
otherwise deals with any such proceeding, claim or demand, or in the event the
Indemnitor does not agree that it is responsible for the Third Party Claim, the
Indemnified Party may retain counsel, at the expense of the Indemnitor, and
control the defense of such proceeding, claim or demand. Either Party has the
option to submit the dispute concerning the liability for the Third Party Claim
for resolution as provided in Article 10 below, but such submission shall not
delay or impede the Indemnified Party's right to defend the Third Party Claim so
as not to prejudice the Indemnified Party. No Indemnitor shall, without the
prior written consent of the Indemnified Party (which shall not be unreasonably
withheld), effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the Indemnified Party is or could have been a party and indemnity may be or
could have been sought hereunder by the Indemnified Party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
Indemnified Party from all liability on claims that are or could have been the
subject matter of such action; and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
Indemnified Party. Within thirty (30) days after: (A) any final judgment or
award shall have been rendered by a Governmental Body of competent jurisdiction
and the time in which to appeal therefrom has expired; (B) a settlement shall
have been consummated; or (C) the Indemnified Party and the Indemnitor shall
arrive at a mutually binding agreement with respect to each separate matter
alleged by the Indemnified Party to be indemnified, the Indemnified Party shall
forward to the Indemnitor notice of any sums due and owing by the Indemnitor
with respect to such matter, and the Indemnitor shall promptly pay all
undisputed sums so owing to the Indemnified Party. The Indemnified Party shall:
(x) provide to the Indemnitor all information, assistance and authority
reasonably requested; and (y) cause its officers, directors, employees and
agents to cooperate with the Indemnitor in order to evaluate any third party
claim, suit or proceeding and effect any defense, compromise or settlement.
(c) The Indemnified Party shall have the burden of proof in establishing
the amount of Losses suffered by it.
7.5. No Special Damages. Except as provided in this Section 7.5, the
Parties will not be liable to each other for any indirect, incidental,
consequential, reliance, or special damages (including lost revenues, lost
savings, or lost profits suffered by such other Party) arising under or in
connection with this Agreement, regardless of the form of action, whether in
contract, warranty, strict liability, or tort, including negligence of any kind
whether active or passive, and regardless of whether the Party knew of the
possibility that such damages could result. The Parties hereby release each
other, their Affiliates and their respective officers, directors, employees, and
agents from any such claim. Nothing contained in this Section 7.5 will limit one
Party's liability to an Indemnified Party for willful or intentional misconduct.
In addition, nothing contained in this Section 7.5 will limit the Parties'
indemnification obligations under this Article 7 in the case of the
indemnification of an Indemnified Party for consequential, punitive or other
types of damages (including lost revenues, lost savings, or lost profits)
awarded in connection with a Third Party Claim.
7.6. Exclusive Remedy. The exclusive remedy available to a party in respect
of the matters covered by Section 7.1 or Section 7.2 hereof shall be to proceed
in the manner and subject to the limitations contained in this Article 8.
7.7. Limitations. The Indemnitor shall not be liable for Losses in excess
of the actual Losses suffered by the Indemnified Party as a result of the act,
circumstance, or condition for which indemnification is sought net of any
insurance proceeds (provided that nothing in this Section 7.7 will limit any
subrogation rights the Indemnified Party's insurer may have against the
Indemnitor) received by the Indemnified Party and indemnification awards
received by the Indemnified Party under the System Access Agreement a result of
the same act, circumstance or condition.
ARTICLE 8. Representations, Warranties, and Covenants
Each Party hereto hereby makes the following representations, warranties
and covenants to the other Parties, solely with respect to itself, which
representations, warranties, and covenants shall survive the execution of this
Agreement:
8.1. It is duly organized and validly existing under the laws of the
jurisdiction of its organization.
8.2 It has full power and authority to execute and perform this Agreement.
8.3 The execution, delivery, and performance of this Agreement has been
duly authorized by all necessary action on its part and is binding and
enforceable against it, except to the extent that enforceability hereof may be
limited by the FCC Rules, state and local common carrier regulation, bankruptcy,
insolvency, or the laws relating to the enforcement of creditor's rights, or by
the application of equitable principles.
8.4. The execution, delivery, and performance of this Agreement will not
conflict with, result in a breach of, or cause a default under, with or without
the giving of notice or the passage of time, or both, its organization
agreements, or any material agreement or instrument to which it is a party or by
which it or any of its property is bound, nor will it conflict with or violate
any statute, law, rule, regulation, order, decree, license, permit or judgment
of any court or governmental authority which is binding upon it or its property.
8.5. There are no undisclosed actions, suits or proceedings pending against
it, or to its knowledge threatened against it, which might have a materially
adverse effect upon its business, operations or financial condition or its
ability to perform its obligations under this Agreement.
8.6. During the term of this Agreement, Sunshine, in cooperation with
Cingular, shall (a) maintain in full force and effect all necessary federal,
state and local regulatory agency authorizations pertaining to the ownership
and/or use of the PCS System; (b) timely file all requests for renewals or
replacements thereof; (c) supply all such agencies with all required
information, which relate to the operation of the PCS System; (d) maintain,
renew and replace all necessary federal, state and local regulatory
authorizations; (e) provide all necessary information and execute any and all
documents necessary to accomplish (c and d) above; and (f) observe and comply
with all laws, rules, regulations, ordinances, codes, orders, licenses and
permits relating to the PCS System or applicable to its business.
ARTICLE 9. Relationship
9.1. No Joint Venture. Nothing in this Agreement is intended, nor shall it
be construed, to create a joint venture, partnership, or other common business
entity as between the Parties, and nothing in this Agreement is intended, nor
shall it be construed, to impair or diminish Sunshine's control over the PCS
System, subject to the rights of Cingular set forth in this Agreement. Nothing
in this Agreement is intended, nor shall it be construed, to make either Party
the agent or co-licensee of the other Party. Neither Party shall have the
authority to bind or commit the other Party in any respect or to accept legal
process on behalf of the other Party. Nothing in this Agreement is intended, nor
shall it be construed, to give either Party claim to the customers, Subscribers
or revenues of the other Party derived from that Party's operations hereunder or
otherwise.
9.2. No Transfer of Control. Nothing in this Agreement is intended, nor
shall it be construed, to give Cingular any right which would be deemed to
constitute a transfer of control of the Licenses under the FCC Rules.
9.3. Representation. Neither Party shall represent itself as the holder of
any FCC licenses issued to the other Party, nor shall either Party represent
itself as the legal representative of the other Party before the FCC, any state
regulatory body, or any other third party. Except as otherwise required by law,
all filings made before regulatory bodies with respect to a Party's FCC license
and/or the services provided by such Party hereunder shall be made by and in the
name of such Party. The Parties shall cooperate with each other with respect to
regulatory matters concerning their respective FCC licenses and the services
provided pursuant to this Agreement.
9.4. Continuing Compliance. Nothing in this Agreement is intended, nor
shall it be construed, to diminish or restrict the Parties' obligations as FCC
licensees, and the Parties desire that this Agreement be in full compliance with
(a) the terms and conditions of their respective FCC licenses; (b) the FCC
Rules; and (c) any other applicable federal, state, or local law or regulation.
If the FCC or any state regulatory body of competent jurisdiction determines
that any provision of this Agreement violates any applicable rules, policies, or
regulations, the Parties shall make reasonable efforts immediately to bring this
Agreement and the services provided hereunder into compliance, consistent with
the intent of the Parties under this Agreement.
ARTICLE 10. Dispute Resolution
10.1. Hierarchy of Dispute Resolution Procedures. Except as otherwise
expressly set forth in this Article 10 or in the System Access Agreement, any
dispute, controversy or claim (a "Dispute"), whether based on contract, tort,
statute, fraud, misrepresentation or any other legal theory between a Party
and/or any Affiliate thereof, on the one hand, and any other Party and/or any
Affiliate thereof on the other hand, that arises out of or relates to this
Agreement or the System Access Agreement or any obligations or related services
to be provided hereunder or thereunder shall be resolved in accordance with the
procedures described in this Article 10. In the case of a Dispute, the Parties
agree to establish an internal hierarchy to facilitate resolution of any such
Dispute as set forth below:
(a) Upon written request of any Party, each Party shall appoint a
designated representative whose task it will be to meet for the purpose of
endeavoring to resolve such Dispute. Such written request shall constitute
notice to the other Party of the Dispute. The written notice shall include a
short description of the Dispute and shall be sent to the other Party via
facsimile and first class mail. The designated representatives shall meet as
often as the Parties reasonably deem necessary to discuss the Dispute in an
effort to resolve the Dispute without the necessity of any formal proceeding.
The Parties' designated representatives shall have their first meeting, pursuant
to this subsection, within five (5) business days from receipt of the written
request for such meeting.
(b) In the event that such representatives are unable to resolve the
Dispute within fifteen (15) days after the Dispute is submitted to them, as
described above in Section 10.1(a), the Dispute shall be submitted to
arbitration in accordance with Section 10.2.
10.2. Arbitration.
(a) If the Parties are unable to resolve any Dispute as contemplated by
Section 10.1, such Dispute shall be submitted to mandatory and binding
arbitration at the election of either Party, for itself or its related Affiliate
(the "Disputing Party"). Except as otherwise provided in this Section 10.2, the
arbitration shall be pursuant to the CPR Rules. The arbitration will 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.
(b) To initiate the arbitration, the Disputing Party shall notify the other
Party(ies) in writing (the "Arbitration Demand"), which shall (i) describe in
reasonable detail the nature of the Dispute, (ii) state the amount of the claim,
and (iii) specify the requested relief. Within fifteen (15) days after the other
Party's receipt of the Arbitration Demand, such other Party shall file, and
serve on the Disputing Party, a written statement (x) answering the claims set
forth in the Arbitration Demand and including any affirmative defenses of such
Party, and (y) asserting any counterclaim, which shall (A) describe in
reasonable detail the nature of the Dispute relating to the counterclaim, (B)
state the amount of the counterclaim, and (C) specify the requested relief.
Within fifteen (15) days after the Disputing Party's receipt of the other
Party's written statement, the Disputing Party shall file, and serve on the
other Party, a written statement responding to the other Party's responses and
affirmative defenses, if any.
(c) The arbitration will be heard by a panel of three (3) arbitrators
chosen pursuant to the CPR Rules (the "Arbitrators"). The Arbitrators shall be
impartial, shall not have been employed by or affiliated with any of the Parties
or any of their respective Affiliates, and shall possess substantial accounting,
legal, telecommunications, business or other professional experience relevant to
the issues in dispute in the arbitration as stated in the Arbitration Demand.
Within forty-five (45) days after selection of the Arbitrators, a hearing shall
be held in such neutral location as the Parties may mutually agree. In the event
that the Parties cannot agree on a location for the hearing, the Arbitrators
shall choose the location. The Arbitrators shall rule on the Dispute within
thirty (30) days after the hearing and shall prepare and distribute to the
Parties a writing setting forth the Arbitrators' finding of facts and
conclusions of law relating to the Dispute, including the reasons for the giving
or denial of any award. The findings and conclusions and the award, if any,
shall be deemed to be information subject to the confidentiality provisions of
this Agreement. The Arbitrators shall have the authority and jurisdiction to
decide any and all issues including whether such issue falls within the ambit of
this Article 10. The arbitration shall be governed by the CPR Rules. The Parties
consent and submit to the jurisdiction of the state and federal courts located
in Delaware for enforcement of any arbitration award or other order/ruling by
the Arbitrators.
(d) The arbitration proceedings and all testimony, filings, documents and
information relating to or presented during the arbitration proceedings shall be
deemed to be information subject to the confidentiality provisions of this
Agreement. The Arbitrators will have no power or authority, under the CPR Rules
or otherwise, to relieve the Parties from their agreement hereunder to arbitrate
or otherwise to amend or disregard any provision of this Agreement, including
the provisions of this Article 10.
(e) The Arbitrators are instructed to schedule promptly all discovery and
other procedural steps and otherwise to assume case management initiative and
control to effect an efficient and expeditious resolution of the Dispute. The
Arbitrators are authorized to issue monetary sanctions against either Party if,
upon a showing of good cause, such Party is unreasonably delaying the
proceeding.
(f) Any award rendered by the Arbitrators will be final, conclusive and
binding upon the Parties and any judgment hereon may be entered and enforced in
any court of competent jurisdiction.
(g) In connection with any arbitration pursuant to this Agreement or to
confirm, vacate or enforce any award rendered by the Arbitrators, the prevailing
Party in such a proceeding will be entitled to recover reasonable attorneys'
fees and expenses incurred in connection with such proceeding in such amount as
the Arbitrators deem equitable, in addition to any other relief to which it may
be entitled.
10.3. Judicial Procedure. Nothing in Section 10.1 or 10.2 shall be
construed to prevent any Party from seeking from a court a temporary restraining
order or other temporary or preliminary injunctive or other provisional relief
pending final resolution of a Dispute pursuant to such sections. In addition,
nothing in this Article 10 shall be construed to prevent a Party from
instituting judicial proceedings at any time to avoid the expiration of any
applicable limitations period or to preserve a superior position with respect to
other creditors.
10.4. Obligation to Continue Performance Pending Resolution of a Dispute.
Notwithstanding the foregoing provisions of this Article, the Parties agree to
continue performing, and to cause their respective Affiliates to continue
performing, their respective obligations under this Agreement pending the
resolution of any Dispute that is being resolved under this Article 10 unless
and until such obligations are terminated or expire in accordance with the
provisions of this Agreement, unless such continued performance shall be
forbidden or restricted by a court, arbitrator or other tribunal.
ARTICLE 11. Miscellaneous
11.1. Governmental Approval. The performance of any obligations of either
Party hereunder or the exercise of any rights hereunder by either Party hereto
that may require federal, state, or local governmental approval shall be subject
to obtaining such approval by Final Order. Pending obtaining such approval by
Final Order, neither Party will do anything which is contrary to the interests
of the other Party with respect to the subject matter hereof.
11.2. Successors and Assigns. This Agreement shall be binding upon each
Party's successor's and permitted assigns. Neither party shall have the right to
assign this Agreement without the written consent of the other; provided that
Cingular shall have the right upon written notice to Sunshine to assign this
Agreement, or its rights and obligations hereunder, to one or more Affiliates.
11.3. Waiver. No waiver of any provision of this Agreement, and no consent
to any default hereunder, shall be effective unless the same shall be in writing
and signed by an authorized representative of the Party against whom such waiver
or consent is claimed.
11.4. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware without regard to conflicts of law provisions.
11.5. Schedules and Exhibits. All Schedules and Exhibits attached to this
Agreement shall be deemed part of this Agreement and incorporated as if fully
set forth herein. The Agreement shall govern in the event of any variation or
inconsistency between this Agreement and the Schedules and Exhibits attached
hereto.
11.6. Section Headings. The headings and numberings of the articles,
sections and paragraphs in this Agreement are for convenience only and shall not
be construed to define or limit any of the terms contained herein or affect the
meaning or interpretation of this Agreement.
11.7. Records. Each Party shall keep adequate records of its operations and
transactions under this Agreement, and shall furnish to the other Party, as
applicable, such information and records as may reasonably be required for the
administration of this Agreement. Any information and records furnished to a
Party hereunder shall be deemed subject to the confidentiality provisions of
Article 6 of this Agreement.
11.8. Notices. Notices provided for by this Agreement shall be in writing
and shall be effective when hand delivered to a Party, or on the business day
following being sent by overnight courier service or by facsimile to the
addresses or fax numbers listed for the respective Party on the signature page
hereto, or to such other addresses or fax numbers as the Party may specify in
writing.
11.9. Entire Agreement. This Agreement and the System Access Agreement
express the entire understanding between the Parties hereto with respect to the
subject matter and supersede all prior agreements among them relating to the
subject matter, and no representations, oral or written, other than those
contained herein, shall have any force or effect. Amendments hereto shall be
effective only if made in writing and executed by both Parties.
11.10. Savings Clause. Notwithstanding anything in this Agreement to the
contrary, if the possession or exercise of any right of the Parties set forth in
this Agreement would cause any Party to violate any applicable law, including,
without limitation, the FCC Rules, or would result in an adverse regulatory
action or ruling by the FCC or otherwise, such right shall be deemed not to
exist.
11.11. Joint Work Product. This Agreement is the joint work product of the
Parties and has been negotiated by the Parties and their respective counsel.
This Agreement shall be fairly interpreted in accordance with its terms and, in
the event of any ambiguities, no inferences shall be drawn against either Party.
11.12. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signature of more
than one Party, but all such counterparts taken together shall constitute one
and the same Agreement.
WHOLESALE AGREEMENT--SIGNATURE PAGE
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date and year first above written.
BellSouth Mobility LLC Sunshine PCS Corporation
By: /s/ Xxxxxxx X. XxXxx By /s/ Xxxxx X. Xxxxxxx
-------------------- --------------------
Title: Executive Vice President Title: Chief Executive Officer
Address: Address: 000 Xxxx 00xx Xxxxxx
c/o Cingular Wireless, LLC Xxxxx 0X
0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx, Xxx Xxxx 10017
Suite 2000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
SCHEDULE A
to
WHOLESALE AGREEMENT
CHARGES FOR SERVICES
(a) Charge per Revenue Minute: $0.20 per Revenue Minute (it being
understood that all Revenue Minutes will be generated by Sunshine pursuant to
the System Access Agreement and sold to Cingular under this Wholesale
Agreement).
In addition, Cingular shall pay to Sunshine a Fixed Fee of $40,000 per month;
prorated for any portion of the first or last month that this Wholesale
Agreement is in effect.
(b) General:
(i) Charges begin when the wireless network begins to process the call
(before the call rings or is answered) and end at the termination of the call.
In the event that the calling party does not hang up within 30 seconds of a busy
or no answer, standard call rating will apply.
(ii) Calling features included in the per minute charge set forth above are
access to Caller ID, Call Waiting, Call Forwarding (Conditional), Numeric
Messaging, and Voice Mail Answering Service, to the extent such features are
incorporated into the PCS System.
(iii) There is no charge for non-revenue Traffic (testing, employee use,
control channels, etc.). The charge for data calls is the same as that for voice
calls. Normal levels of short message service ("SMS") ancillary to voice or data
service are not billed separately.
(c) Billing Records: Cingular shall reimburse Sunshine for any reasonable
costs incurred by Sunshine in preparing and producing call data records for
Cingular.
(d) Other Charges: Cingular shall pay all:
(i) sales, property, ad valorem, use, excise, gross receipts or similar
taxes, if any, paid by Sunshine to Cingular in connection with
telecommunications services provided under the System Access Agreement and any
other similar taxes attributable to an Cingular Subscriber; and
(ii) Sunshine's actual costs paid to Cingular under the System Access
Agreement for roaming, toll calls, operator assisted calls, directory assistance
calls, time and temperature calls, emergency bureau calls, and other third-party
carrier service calls attributable to an Cingular Subscriber.
