EXHIBIT 99.2
SYSTEM ACCESS AND SERVICES AGREEMENT
This SYSTEM ACCESS AND SERVICES 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") to
Sunshine, Sunshine may provide broadband personal communications service
("Broadband PCS Service") over a broadband personal communications service
("PCS") system within the Tallahassee, Panama City and Ocala Florida Basic
Trading Areas (the "BTAs");
WHEREAS, Cingular has constructed a PCS System in the BTAs;
WHEREAS, Cingular Wireless LLC ("Cingular Parent") and Sunshine have as of
the Execution Date entered into that certain Agreement for Purchase and Sale of
Licenses (the "License Purchase Agreement"), pursuant to which, among other
things, Cingular has agreed to purchase the Licenses from Sunshine, such
proposed purchase being subject to satisfaction of certain conditions, including
without limitation, grant by the FCC by Final Order of Cingular Parent's and
Sunshine's application for approval of the transfer of the Licenses from
Sunshine to Cingular Parent or any of its Affiliates; and
WHEREAS, pending the closing of the purchase contemplated by the License
Purchase Agreement, the Parties desire to enter into this Agreement to allow
Sunshine to provide services via the PCS System in accordance with the terms of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed 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 thirty (30) days; or (iii) the entry of an order for
relief against such Party under Title 11 of the United States Bankruptcy Code.
"Cell Sites" shall mean all: (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 from time to time (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" shall mean 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 Licenses 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 a 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.
"Network Changes" shall mean any technical or physical changes to a Cell
Site or Switch that would affect the performance of the Cell Site or Switch or
the interoperability of the Cell Site or Switch with the facilities of a
connecting carrier. Such technical or physical changes may include, but are not
limited to, alterations, modifications, improvements, enhancements, upgrades, or
updates, changes in network architecture, specifications, or standards, changes
in transmission, signaling, or routing protocols, or changes in interconnection
facilities or assignments.
"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 PCS system.
"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.
"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.
"Unfettered Access" shall mean reasonable physical access by Sunshine's
technically qualified employees, representatives and agents, accompanied at all
times by Cingular's technical personnel, sufficient for Sunshine, as determined
by Sunshine in its sole discretion, to inspect, initiate, restore, interrupt,
adjust or terminate the operation of any and all facilities, equipment, software
and wiring affecting the Licenses in a timely fashion and without interference
from Cingular or otherwise.
"Wholesale Agreement" shall mean that certain Wholesale Agreement between
Cingular and Sunshine dated as of even date herewith.
ARTICLE 2. USE of Cell Sites and Switch
2.1. Use of Cell Sites. Subject to the terms and conditions of this
Agreement, Cingular shall provide Sunshine with access to and the non-exclusive
use of the Cell Sites in the PCS System, including all features, functions, and
capabilities of the Cell Sites, in and for the purpose of providing Broadband
PCS Service under the Licenses. Sunshine's rights to use the Cell Sites pursuant
to this Section 2.1 shall extend to the technology and capacity available from
such Cell Sites, as the same shall be expanded, enhanced, or modified by
Cingular from time to time during the term of this Agreement, and as may be
necessary to support the commercial operation of the PCS System, subject to the
provisions hereof. For purposes of clarification, nothing in this Section 2.1
shall require Cingular to install, operate, maintain, repair or replace any of
its Cell Sites to a greater extent than is required pursuant to Section 4.1(a)
of this Agreement or pursuant to the terms of the Wholesale Agreement.
2.2. Use of Switch. Subject to the terms and conditions of this Agreement,
Cingular shall provide Sunshine with access to and the non-exclusive use of the
Switch in the PCS System, including all features, functions, and capabilities of
the Switch, for the purpose of serving and providing Switch capability for the
PCS System to provide Broadband PCS Service under the Licenses. Sunshine's
rights to use the Switch pursuant to this Section 2.2 shall extend to the
technology and capacity available from such Switch, as the same shall be
expanded, enhanced, or modified by Cingular from time to time during the Term,
and as may be necessary to support the commercial operation of the PCS System,
subject to the provisions hereof. For purposes of clarification, nothing in this
Section 2.2 shall require Cingular to install, operate, maintain, repair or
replace any of its Switches to a greater extent than is required pursuant to
Section 4.1(b) of this Agreement or pursuant to the terms of the Wholesale
Agreement.
2.3 Access and Access Charges. Sunshine shall purchase access to the PCS
System, and Sunshine shall pay for such access on a per minute basis in
accordance with Schedule B.
ARTICLE 3. Ownership of Facilities
3.1. Cingular Cell Sites and Switch. Sunshine hereby acknowledges that the
Switch and Cell Sites in the PCS System are owned or leased by Cingular, subject
to the non-exclusive rights of Sunshine set forth in this Agreement.
3.2. Title to Assets. Title to the Switch and Cell Sites in the PCS System
used by Sunshine hereunder shall not be transferred to Sunshine at any time, and
Sunshine shall have no right, title or interest therein (including a leasehold
or subleasehold interest), except as expressly set forth in this Agreement or in
the Wholesale Agreement; provided, however, that nothing in this Article 3 shall
prevent Sunshine from Unfettered Access in accordance with the provisions of
Section 3.3. Sunshine, at its own expense, shall protect and defend Cingular's
title to the Switch and Cell Sites and will keep such Switch and Cell Sites free
and clear from any and all liens, encumbrances and legal processes of Sunshine's
creditors and other persons. Cingular, at its own expense, shall protect and
defend Sunshine's rights hereunder from and against any of Cingular's creditors
and other persons.
3.3. Unfettered Access. Notwithstanding any other provision of this
Agreement to the contrary, Sunshine has control and shall, at all times,
continue to retain control over the Licenses and the frequencies authorized for
use thereunder and the management, business and operation of the PCS System. At
all times during the term of this Agreement, Sunshine shall be entitled to
Unfettered Access to such portions of Cingular's Switch and Cell Sites used by
it that are operated under authority of the Licenses, in accordance with the
terms of this Agreement; provided, however, that Sunshine shall take reasonable
precautions not to disturb or interfere with the lawful operations of Cingular,
unless such disturbance is deemed by Sunshine in good faith to be necessary for
the control of the Licenses (including, by way of example and not of limitation,
by executing a request from the FCC to terminate or modify interfering
transmissions or in performing emergency service restoration work); and provided
further that nothing herein shall grant Sunshine any rights with respect to the
Cell Sites that conflict with the lease agreements governing such Cell Sites.
Sunshine agrees that Cingular's Switch and Cell Sites used by it will be used
solely in the conduct of Sunshine's business pursuant to the terms of the
Wholesale Agreement. Sunshine warrants that its use of Cingular's Cell Sites and
Switch in accordance with the terms of this Agreement will be in compliance with
the FCC Rules. The Parties will cooperate to implement the terms of this
paragraph in a manner that is consistent with the foregoing proviso and
Sunshine's Unfettered Access.
ARTICLE 4. Operation of CELL SITES AND Switch
4.1. Cingular Rights and Obligations.
(a) Cell Sites.
(i) During the term of this Agreement, and subject to the terms hereof,
Cingular shall, at its own expense, install, operate, maintain, repair or
replace its Cell Sites in a manner that will enable Sunshine to provide
Broadband PCS Service on the Licenses using Cingular's Cell Sites and otherwise
in a manner consistent with industry standards, and conforming at all times to
applicable laws and regulations (including all applicable FCC Rules). Cingular
shall be responsible for obtaining and maintaining from the appropriate public
authorities or private entities, as available, any authorizations, licenses, or
permits required for the installation, operation, maintenance, repair or
replacement of its Cell Sites and for obtaining and maintaining reasonable
interconnection arrangements with the PSTN, provided, however, that Sunshine
shall be responsible for review, verification, and filing of any applications,
reports, notifications, notices, or other filings with the FCC. Cingular shall
install, operate, maintain, repair or replace its Cell Sites without
discriminating in favor of or against itself or Sunshine.
(ii) Cingular reserves the right, in its sole discretion and at its own
expense, to make any and all Network Changes to its Cell Sites, and to add any
features, functions, or capabilities to its Cell Sites; provided, however, that
any and all such Network Changes, and any such added features, functions, or
capabilities, shall be made available to Sunshine on an equal and
non-discriminatory basis. In no event shall any such Network Changes or any such
added features, functions, or capabilities, be implemented in a manner or under
terms or conditions that would impair Sunshine's continued operations as
described in Section 4.1(a)(i) during the term of this Agreement.
(iii) In addition to complying with the terms of Section 3.3 of this
Agreement, Cingular shall permit Sunshine, on a reasonable basis, to monitor the
operations of its Cell Sites, in whole or in part, to the extent that the
facilities affect the frequencies authorized for use under the Licenses.
Cingular shall make available to Sunshine, at Sunshine's expense, monitoring
capabilities sufficient for Sunshine to ascertain and ensure, in its own
reasonable judgment, the lawful operation of the frequencies authorized for use
under the Licenses and the continued operation of the PCS System. Such
monitoring capabilities may include, without limitation, access to any on-site
or remote electronic or mechanical monitoring or recording functions that
Cingular has established for itself, a subsidiary, an Affiliate, or any third
party in connection with the Cell Sites and the ability to monitor cell site
alarms within the Cell Sites.
(b) Switch.
(i) During the term of this Agreement, and subject to the terms hereof,
Cingular shall, at its own expense, install, operate, maintain, repair or
replace its Switch in a manner that will enable Sunshine to provide Broadband
PCS Service on the Licenses using Cingular's Switch and otherwise in a manner
consistent with industry standards and conforming at all times to applicable
laws and regulations (including all applicable FCC Rules). Cingular shall be
responsible for obtaining and maintaining from the appropriate public
authorities or private entities, as available, any authorizations, licenses or
permits required for the installation, operation, maintenance, repair or
replacement of such Switch and for obtaining and maintaining reasonable
interconnection arrangements with the PSTN. Cingular shall install, operate,
maintain, repair or replace the Switch without discriminating in favor of or
against itself or Sunshine.
(ii) Cingular shall provide for the interconnection of the PCS System with
its Switch at a point at or near the Switch and at a level of quality that is at
least equal to that which Cingular provides itself, a subsidiary, an Affiliate,
or any third party. The Parties shall work cooperatively to install and maintain
a reliable interconnection arrangement for Sunshine's use of the Switch, and the
interconnection of the PCS System and the Switch shall meet or exceed accepted
industry standards for Traffic blocking and network congestion.
(iii) Cingular reserves the right, in its sole discretion and at its own
expense, to make any and all Network Changes to its Switch, and to add any
features, functions, or capabilities to its Switch; provided, however, that any
and all such Network Changes, and any such added features, functions, or
capabilities, shall be made available to Sunshine on an equal and
non-discriminatory basis. In no event shall any such Network Changes or any such
added features, functions, or capabilities, be implemented in a manner or under
terms or conditions that would impair Sunshine's continued operations as
described in Section 4.1(b)(i) during the term of this Agreement.
(iv) In addition to complying with the terms of Section 3.3 of this
Agreement, Cingular shall permit Sunshine, on a reasonable basis, to monitor the
operations of Cingular's Switch, in whole or in part, to the extent that the
facility affects the frequencies authorized for use under the Licenses. Cingular
shall make available to Sunshine at Sunshine's expenses monitoring capabilities
sufficient for Sunshine to ascertain and ensure, in its own reasonable judgment,
the lawful and continued operation of the frequencies authorized for use under
the Sunshine Licenses. Such monitoring capabilities may include, without
limitation, access to any on-site or remote electronic or mechanical monitoring
or recording functions that Cingular has established for itself, a subsidiary,
an Affiliate, or any third party in connection with its Switch and the ability
to monitor Cell Site alarms within the PCS System.
4.2 Billing and Call Data Records; Subscribers. At Sunshine's request,
Cingular shall provide to Sunshine detailed call data information in a
commercially standard electronic format and reasonable accounting support to
justify such call data information. Sunshine shall bear all costs associated
with converting such information into Subscriber bills. Subject to any separate
written agreement between the Parties, Cingular shall have no responsibility to
arrange or manage production of Sunshine's Subscriber bills. Sunshine shall be
solely responsible for any claims made by its Subscribers occasioned by, arising
out of, or in any way related to, the services and activities contemplated under
this Agreement.
4.3 Sunshine Rights and Obligations. Sunshine may request and Cingular, as
soon as reasonably practicable thereafter, shall undertake reasonable Network
Changes to any of its Cell Sites or Switch, and Cingular shall add reasonable
features, functions, or capabilities to any of its Cell Sites or Switch;
provided, however, that any and all such Network Changes and any such added
features, functions, or capabilities, shall be at Sunshine's expense and shall
be owned by Cingular.
4.4. Service Interruption. The Parties agree and acknowledge that, given
the complex nature of the PCS System, service interruptions to the PCS System
may be unavoidable. Cingular shall use commercially reasonable efforts to avoid
any unnecessary service interruptions to the PCS System, to undertake to
promptly restore service following an interruption, and to work cooperatively
with Sunshine to plan and coordinate any necessary service interruptions for
maintenance and repair to minimize disruptions to customers.
4.5. Revenue Accounting. The Parties shall cooperate in good faith to
configure and program Cingular's Switch, maintain records and take other
reasonable steps to ensure that each Party's Revenue Minutes are fairly and
appropriately calculated.
ARTICLE 5. Fees and Charges
5.1. Fees and Charges. For the rights of use and services granted to
Sunshine by Cingular under this Agreement, Sunshine shall pay to Cingular all
applicable fees and charges set forth in Schedule B attached hereto
(collectively "Charges").
5.2. Billing and Payment. Cingular 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 Sunshine an itemized statement listing Charges incurred
by Sunshine 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 such statement, except as
provided in Section 5.3.
5.3. Disputed Charges. If Sunshine has a bona fide dispute regarding any
amount of the Charges billed to Sunshine by Cingular, the matter will be treated
as a Dispute for purposes of Article 12 of this Agreement and resolved in
accordance with such Article 12.
5.4. Late Fees. Any Charges not the subject of a bona fide dispute and not
paid when due shall accrue interest from the date such Charges were due until
paid in full at the lower of 1.5 percent per month or the maximum rate permitted
by applicable law.
ARTICLE 6. Representations, Warranties, and Covenants
Each Party hereto hereby makes the following representations, warranties
and covenants to the other Party, which representations, warranties, and
covenants shall survive the execution of this Agreement, as follows:
6.1. It is duly organized and validly existing under the laws of the
jurisdiction of its organization.
6.2. It has full power and authority to execute and perform this Agreement.
6.3. 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.
6.4. 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 indenture or mortgage, agreement or other 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, where such conflict, breach, or default would
have a material adverse effect on the business operations or financial condition
of such Party or adversely affect such Party's ability to perform its
obligations under this Agreement.
6.5. 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.
6.6. 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, including the Licenses; (b) timely file all
requests for renewals or replacements thereof; supply all such agencies with all
required information, which relate to the operation of the PCS System; (c)
maintain, renew and replace all necessary federal, state and local regulatory
authorizations; (d) provide all necessary information and execute any and all
documents necessary to accomplish (c) above; and (e) 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 7. Term of Agreement; Termination
7.1. 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
Wholesale Agreement shall terminate on the same date as this Agreement.
7.2. Effect of Termination. In the event that this Agreement shall be
terminated pursuant to this Article 7, all obligations under this Agreement
shall terminate and be of no further effect, except that (a) this Section 7.2,
Article 8, Article 9, 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 8. INDEMNIFICATION
8.1. 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.
8.2. 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.
8.3. Notice of Claims; Calculation of Losses.
(a) Any Sunshine Indemnified Party or Cingular Indemnified Party (the
"Indemnified Party") seeking indemnification under this Section 8.3 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
8 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 8.4 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 8.3(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 11
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.
8.4. 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 11 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.
8.5. No Special Damages. Except as provided in this Section 8.5, 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 8.5 will limit one
Party's liability to an Indemnified Party for willful or intentional misconduct.
In addition, nothing contained in this Section 8.5 will limit the Parties'
indemnification obligations under this Article 9 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.
8.6. Exclusive Remedy. The exclusive remedy available to a party in respect
of the matters covered by Section 8.1 or Section 8.2 hereof shall be to proceed
in the manner and subject to the limitations contained in this Article 8.
8.7. 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 8.7 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 Wholesale Agreement as a result of
the same act, circumstance or condition.
ARTICLE 9. 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 others 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
Parties may be entitled under this Agreement or at law or in equity, the other
Parties 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.
ARTICLE 10. Relationship
10.1. 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 among any or all of the Parties, and nothing in this Agreement is
intended, nor shall it be construed, to impair or diminish Cingular's ownership
and control over its Cell Sites or Switch, subject to the non-exclusive rights
of Sunshine set forth in this Agreement, or Sunshine's control over the
Licenses. Nothing in this Agreement is intended, nor shall it be construed, to
make Cingular the agent or co-licensee of Sunshine, nor Sunshine the agent or
co-licensee of Cingular. 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 Cingular or Sunshine claim to the customers, Subscribers or
revenues of the other derived from that Party's operations hereunder or
otherwise.
10.2. 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.
10.3. Representation. Neither Cingular nor Sunshine shall represent itself
as the holder of any FCC Licenses issued to the other Party, nor shall Cingular
or Sunshine 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 Cingular's FCC Licenses and the services provided by Cingular
hereunder shall be made by and in the name of Cingular, and all filings made
before regulatory bodies with respect to the Licenses or the operations of
Sunshine hereunder shall be made by and in the name of Sunshine. Cingular and
Sunshine shall cooperate with each other with respect to regulatory matters
concerning the Licenses and the services provided pursuant to this Agreement.
10.4. Continuing Compliance. Nothing in this Agreement is intended, nor
shall it be construed, to diminish or restrict either Party's obligations as an
FCC licensee, and the Parties desire that this Agreement be in full compliance
with (a) the terms and conditions of the 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
regulation, 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 11. Dispute Resolution
11.1. Hierarchy of Dispute Resolution Procedures. Except as otherwise
expressly set forth in this Article 11 or in the Wholesale 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 Wholesale 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 11. 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 11.1(a), the Dispute shall be submitted to
arbitration in accordance with Section 11.2.
11.2. Arbitration.
(a) If the Parties are unable to resolve any Dispute as contemplated by
Section 11.1, 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 11.2, 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 11. 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 11.
(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.
11.3. Judicial Procedure. Nothing in Section 11.1 or 11.2 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 11 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.
11.4. 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 11 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 12. Miscellaneous
12.1. 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.
12.2. Successors and Assigns. This Agreement shall be binding upon each
Party's successors 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.
12.3. 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.
12.4. Governing Law. This Agreement shall be governed by the laws of the
state of Delaware without regard to conflicts of law provisions.
12.5. 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 attached hereto.
12.6. 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.
12.7. Records. Each Party shall keep adequate records of its operations and
transactions under this Agreement, and shall furnish to the other Parties, 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 10 of this Agreement.
12.8. 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.
12.9. Entire Agreement. This Agreement and the Wholesale 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. Promptly upon the issuance
of FCC rules relating to spectrum leasing, each Party hereto agrees to enter
into a spectrum leasing arrangement on the same substantive commercial terms as
this Agreement and the Wholesale Agreement and to terminate this Agreement and
the Wholesale Agreement upon the execution thereof.
12.10. 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.
12.11. 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.
12.12. 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.
[text continues on next page]
SYSTEM ACCESS AND SERVICES 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
EXHIBIT A
LICENSES
------------------------------------------------------------------------------------------------------------
FCC Channel Block/
Seller BTA Licenses # Market Name MHz Grant Date Exp. Date
------------------------------------------------------------------------------------------------------------
439 KNLF361 Tallahassee 1902.5-1910/1982.5-1990 09/17/96 09/17/06
340 KNLF362 Panama City 1902.5-1910/1982.5-1990 09/17/96 09/17/06
326 KNLF325 Ocala 1902.5-1910/1982.5-1990 09/17/96 09/17/06
EXHIBIT B
FEES AND CHARGES
Rate of $0.20 per Revenue Minute.
The $0.20 per Revenue Minute charge paid by Sunshine includes payment for access
to any equipment and software incorporated in the PCS System relating to caller
ID, call waiting, call forwarding (conditional), numeric messaging, voicemail
answering and other similar services to be provided to Subscribers or customers.
Each Party shall be responsible for costs associated with roaming, toll calls,
operated-assisted calls, directory assistance calls, time and temperature calls,
emergency bureau calls, and other third-party carrier services attributable to a
Subscriber or other customer offered by such Party. Sunshine shall be
responsible for the payment of all sales, property, ad valorem, use, excise,
gross receipts, and similar taxes, if any, imposed on the telecommunications
services provided by Cingular under this Agreement. Notwithstanding anything to
the contrary herein, Cingular shall be responsible for all sales, use, excise,
gross receipts or similar taxes attributable to a Cingular Subscriber or other
customer.
