MANAGEMENT AGREEMENT
between
XXXXXX CELLULAR SYSTEMS, INC.
and
AMERICAN CELLULAR CORPORATION
Effective as of August 19, 2003
TABLE OF CONTENTS
Section 1. Engagement 2
Section 2. Management Standards 2
Section 3. Services to be Provided 2
Section 4. Compensation 7
Section 5. Term and Termination 8
Section 6. Noncompetition and Confidentiality 11
Section 7. Force Majeure 12
Section 8. Books and Records 12
Section 9. Regulatory Compliance 13
Section 10. Dispute Resolution 14
Section 11. Inspection Rights; Delivery Information 14
Section 12. Miscellaneous 15
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement"), is entered into as of August
19, 2003 by and between Xxxxxx Cellular Systems, Inc., an Oklahoma corporation
("Manager"), and American Cellular Corporation, a Delaware limited liability
company (the "Company"). Capitalized terms used but not defined in this
Agreement shall have the meanings given to such terms in the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of
February 25, 2000 (the "LLC Agreement").
WHEREAS, the operation of the Business, including, without limitation, the
determination of policy, the preparation and filing of any and all applications
and other filings with the FCC, the hiring, supervision and dismissal of
personnel, day-to-day system operations, and the payment of financial
obligations and operating expenses, shall be controlled by the Company, and
Manager shall assist the Company in connection therewith and any action
undertaken by Manager shall be under the Company's continuing oversight, review,
control and approval, and the Company shall retain unfettered control of, access
to, and use of the Business, including its facilities and equipment and shall be
entitled to receive all profits from the operation of the Business;
WHEREAS, the Company owns all of the equity interests in American Cellular
Corporation, which through its subsidiaries owns certain Cellular Systems and
PCS Systems;
WHEREAS, Manager is willing to provide management services for the Company
and its Subsidiaries on the terms and subject to the conditions contained in
this Agreement; and
NOW, THEREFORE, for and in consideration of the premises, the covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the execution and delivery
hereof, the parties agree, and the Original Agreement is hereby amended and
restated in its entirety, as follows:
Section 1. Engagement. The Company hereby engages Manager to oversee,
manage and supervise the development and operation of the Business, and Manager
hereby accepts such engagement, subject to and upon the terms and conditions
hereof.
Section 2. Management Standards.
(a) In performing its obligations hereunder, Manager shall act in a
manner that it reasonably believes to be in the best interests of the Company
consistent with the standards set forth herein.
(b) Manager shall devote comparable attention and services to the
Company as those devoted by Manager in its management of other wireless
communications systems or markets directly or indirectly owned or managed by
Manager, and will otherwise deal with the Company subject to the terms of this
Agreement in a manner that is substantially consistent with the manner in which
the Manager has operated the Company's markets prior to the date of this
Agreement and in a manner that does not unreasonably discriminate against the
Company in favor of such other markets.
(c) Manager shall use reasonable best efforts to cause the Company's
Cellular Systems to be maintained and operated in the same manner and with
quality standards consistent with the manner and standard of Manager's owned
cellular systems.
Section 3. Services to be Provided.
(a) Scope of Services. Subject to the Company's oversight, review and
ultimate control and approval and the limitations of Section 3(c) below, Manager
shall be responsible for the supervision, design, construction and operation of
the Company and the Business in accordance with the Operating Agreements. Among
other things, Manager shall have the right to select the persons who shall
perform all design, construction, management or operational services and may
elect to use its own employees or engage independent contractors. To this end
Manager shall provide generally, on the terms and subject to the conditions set
forth herein and in a manner consistent with the standards set forth herein,
supervisory services with respect to (x) all administrative, accounting,
billing, credit, collection, insurance, purchasing, clerical and such other
general services as may be necessary to the administration of the Business, (y)
operational, engineering, maintenance, construction, repair and such other
technical services as may be necessary to the construction and operation of the
Business, and (z) marketing, sales, advertising and such other promotional
services as may be necessary to the marketing of the Business. The services for
which Manager shall be responsible, the Company's oversight, review and ultimate
control and approval and to the limitations of Section 3(c) below, shall include
but shall not be limited to the following:
(i) the marketing of Mobile Wireless Services, other Company
Communications Services to be offered and provided by the Company;
(ii) the management, tax compliance, accounting and financial
reporting for the Company including, but not limited to, the
preparation and presentation of reports and reviews of the business,
financial results and condition, regulatory status, competitive
position and strategic prospects of the Company as reasonably
requested by the Company;
(iii) the regulatory processing for the Company, including
without limitation the preparation and filing of all appropriate
regulatory filings, certificates, tariffs and reports that are
required by, and participation in any hearings or other proceedings
before, local, state and federal governmental regulatory bodies;
(iv) the engineering, design, planning, construction and
installation, maintenance and repair (both emergency and routine) and
operation of, and equipment purchases for, the Company;
(v) assisting the Company in the development and preparation of
budgets, including, without limitation, preparing and presenting an
annual operating budget for the Company's review, evaluation and
approval setting forth in reasonable detail the anticipated capital
expenditures and other projected costs and expenses of constructing
and operating the Business during the period covered by the budget, as
well as projected revenues for that period, a business plan and
personnel requirements, and key performance standards, goals and
indicators for the Company, for the period covered by the budget, in
each case presented on a month-by-month basis to the extent
practicable, and generally describing all contracts and commitments
which Manager expects to enter into on behalf of the Company during
the period covered thereby;
(vi) services relating to sales of the products and services
offered by the Company, including without limitation processing orders
for service, customer support, billing for services provided by the
Company and collection of receivables for the Company;
(vii) management information services for the Company;
(viii) monitoring and controlling the Business and its Cellular
Systems;
(ix) negotiating contracts, issuing purchase orders and otherwise
entering into agreements on behalf of the Company for the purchase,
lease, license or use of such properties, services and rights as may
be necessary or desirable in the judgment of Manager for the operation
of the Company;
(x) supervising, recruiting and training all necessary personnel
to be employed by the Company, and determining salaries, wages and
benefits for the Company's employees;
(xi) administering the Company's employee benefit programs and
the Company's programs for compliance with applicable laws governing
the administration and operation of such plans and programs;
(xii) administering the Company's risk management programs,
including negotiating the terms of property and casualty insurance and
preparing a comprehensive disaster recovery program; and
(xiii) in furtherance of the foregoing, making or committing to
make permitted expenditures (including permitted capital expenditures)
on behalf of the Company.
(b) Accounts. Subject to the foregoing, the Company shall be
responsible for payment of all costs and expenses necessary to fund the ongoing
business and operations of the Business and for the provision of all services of
Manager hereunder, which shall include, but not be limited to, payments under
Section 4, payments to independent contractors, payments to vendors and
suppliers of the Business, and interest payments to creditors who have financed
the construction or operation of the Business. To the extent provided herein,
Manager shall make such payments on the Company's behalf from one or more
accounts maintained in the name of the Company at one or more banks into which
all Company revenues shall be deposited (the "Accounts"). All funds of the
Company shall be promptly deposited in such bank accounts. All disbursements
made by the Company as permitted under this Agreement shall be made by checks
drawn on the Accounts, and all funds on deposit in the Accounts shall at all
times be the property of the Company. Manager will have the right and authority
to make deposits to and disbursements and withdrawals from the Accounts as
required in connection with the performance of its services hereunder.
(c) Restrictions on Manager's Authority. Anything to the contrary in
this Agreement notwithstanding, Manager shall not take, or cause or permit to be
taken, any action that requires the approval of, or do, or cause or permit to be
done, any of the following for or on behalf of the Company without the consent
of the Company (unless included with reasonable specificity in a budget duly
adopted by the Company):
(i) settle any claim or litigation by or against the Company if
the settlement involves a payment of $500,000 or more, or any
non-ministerial regulatory proceedings involving the Company;
(ii) (A) lend money or guarantee debts of others (other than
wholly-owned Subsidiaries of the Company) on behalf of the Company, or
assign, transfer, or pledge any debts due the Company, or (B) release
or discharge any debt due or compromise any claim of the Company,
other than trade credit and advances to employees in the ordinary
course of business;
(iii) invest in or otherwise acquire any debt or equity
securities of any other Person, enter into any binding agreement for
the acquisition of any interest in any business entity or other Person
(whether by purchase of assets, purchase of stock or other securities,
merger, loan or otherwise), or enter into any joint venture or
partnership with any other Person;
(iv) take any tax reporting position or make any related election
on behalf of the Company which is inconsistent with the directions
given by the Company;
(v) assert on behalf of the Company a position with respect to
any material matter, or disagree on behalf of the Company with a
position taken with respect to any material matter by a Member or any
other Person, before the Federal Communications Commission or any
other Governmental Authority, a self-regulatory body, any industry
organization or in any other public forum;
(vi) knowingly take or fail to take any action that violates (A)
any law, rule or regulation relating to the Business, (B) any material
agreement, arrangement or understanding to which the Company is a
party, including an Operating Agreement, (C) any License or other
governmental authorization granted to the Company in connection with
its ownership and operation of the Business, or (D) any judicial or
administrative order or decree to which the Company is subject;
(vii) sell, assign, transfer, or otherwise dispose of, or
hypothecate or xxxxx x Xxxx on any License or other material assets
belonging to the Company (other than the disposal of assets or
equipment in the ordinary course of business);
(viii) take any action amending or agreeing to amend any License
granted to the Company in. connection with its ownership and operation
of the Business (it being understood that License renewals in the
ordinary course of business shall not require the Company's approval);
(ix) borrow money on behalf of the Company or enter into other
forms of financing for the Business, other than any capital lease;
(x) commingle any funds of the Company with funds of any other
entity or Person;
(xi) hire or fire the independent certified public accountants of
the Company;
(xii) pay to any employee or consultant or advisor to, the
Company, cash compensation in excess of $150,000 in any fiscal year;
(xiii) establish any reserves that are not set forth on the
budget approved by the Company;
(xiv) make any material changes or modifications to any
significant components of the Company Cellular Systems as they exist
on the Effective Date;
(xv) enter into any contract, agreement (including any capital
lease) or other commitment or issue any purchase order, which contract
or other agreement or purchase order (A) is not in the ordinary course
of business, (B) obligates the Company to make payments of $500,000 or
more within any 12-month period or (C) could reasonably be expected to
create a material variance relative to (x) in the case of a capital
expenditure, the total budget for capital expenditures contained in
any budget approved by the Company and (y) in the case of an operating
expense, the total operating expense budget contained in any budget
approved by the Company, in each case for the year-to-date period in
which the expenditure is made or incurred and taking into account all
previous expenditures and commitments in such year-to-date period; or
terminate or amend in any material respect any contract, agreement or
other commitment or purchase order, in each case if the execution and
delivery or issuance thereof requires approval pursuant to this
Section 3(c); or
(xvi) enter into, or commit to enter into, any agreement,
arrangement or understanding that could reasonably be expected to have
an adverse effect on the Company's ability to comply in any material
provisions of this Agreement.
(d) Budgets. Manager shall prepare or cause to be prepared and present
in a timely manner an annual operating budget (with quarterly forecasts) for the
Company's review, evaluation and approval (each, as duly approved by the
Company, an "Operating Budget"). Each Operating Budget shall set forth in
reasonable detail the anticipated capital expenditures and other projected costs
and expenses of operating the Company's Cellular Systems during the period
covered by the budget, as well as projected revenues for that period and the
projected reportable income for such quarter and Manager shall endeavor to
assure the accuracy of its estimates.
(e) Transactions with Affiliates. Notwithstanding anything in this
Agreement to the contrary, without the prior approval of the Company, Manager
shall not (and shall cause the Company and its Subsidiaries not to) enter into
any agreement, arrangement or understanding with Manager or any of its
Affiliates except in the ordinary course of the Business of the Company and on
commercially reasonable terms that are no less favorable to the Company or its
Subsidiaries than the Company or its Subsidiaries would obtain in a comparable
arm's-length transaction with an unaffiliated Person. In its request for
approval of the Company, Manager shall specify that the applicable transaction
is subject to this Section 3(e).
Section 4. Compensation.
(a) Reimbursement. The Company shall reimburse Manager for all
out-of-pocket expenses ("Out-of-Pocket Expenses") reasonably incurred by Manager
for goods and services provided by third parties to, for or on behalf of the
Company or incurred by Manager in the performance of its duties and
responsibilities hereunder. Manager shall provide the Company with an accounting
setting forth in reasonable detail (and, if requested by Company, with
supporting documentation) the Out-of-Pocket Expenses claimed within thirty (30)
days after they are incurred. The Company shall pay to Manager each such amount
within thirty (30) days of receipt of such statement and invoices or other
supporting documentation (it being understood that estimated Out-of-Pocket
Expenses will not be reimbursed until Manager provides the Company with the
invoices or other supporting documentation therefore).
(b) Cost Allocations. To the maximum extent practicable, Manager and
its Affiliates will specifically identify costs associated directly or solely
with the Business, which shall be reimbursed by the Company as Out-of-Pocket
Expenses in accordance with Section 4(a). To the extent that such specific
identification is impracticable, Manager shall charge the Company "Cost
Allocations" for those common costs, which benefit the Company (including an
appropriate portion of Manager's general overhead costs). Cost Allocations
(including without limitation the cost of services directly allocable to the
Company that are performed by employees of Manager or its Affiliates) shall be
calculated and charged to the Company, except for common costs associated with
call center activities or operation, on the basis of licensed POPs for the
market(s) sharing in or benefiting from such common costs (other than those
associated with the call centers). For purposes of this Agreement, POPs shall
mean the number of residents of a licensed area based upon the most current
determination of such by the Company and Manager. Common costs associated with
call center activities or operation shall be allocated on the basis of
subscribers in the market(s) sharing in or benefiting from such costs. With
regard to those common costs, which are subject to any specific lease or shared
equipment agreements, the cost allocations therein shall control in the event of
a difference between those agreements and this Agreement. Manager shall cause to
be furnished to the Company, at Company's expense, an accounting of any such
Cost Allocations, and the Company shall pay to Manager such amount within thirty
(30) days of receipt of such accounting.
(c) Disputes, etc. If the Company disputes the amount of Out-of-Pocket
Expenses or Cost Allocations claimed by Manager, the Company shall notify \
Manager in writing before payment is due, and if the matter cannot be resolved
informally between the parties, either the Company or Manager may request
resolution of the dispute pursuant to Section 10.
Section 5. Term and Termination.
(a) This Agreement shall commence on August 19, 2003 (the "Effective
Date") and shall terminate as provided herein.
(b) Termination.
(i) By Either Party. Either party may terminate this Agreement in
the event that a Governmental Authority shall enter an order
appointing a custodian, receiver, trustee, intervenor or other officer
with similar powers with respect to the other party or with respect to
any substantial part of its property, or constituting an order for
relief or approving a petition in bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding up or liquidation
of such party; or if a party files a petition seeking any such order;
or if any such petition shall be filed against such party and shall
not be dismissed within one hundred and twenty (120) days thereafter;
or an order shall have been issued granting such party a suspension of
payments under applicable law and any such 1 order is not dismissed
within one hundred and twenty (120) days thereafter.
(ii) By Company. The Company may terminate this Agreement:
(A) on ten (10) days' notice in the event of a material
breach of this Agreement by Manager, which has not been cured
within sixty (60) days following notice thereof from the Company;
(B) on ten (10) days' notice if a Change of Control of
either the Company, the Manager or DCC occurs For the purpose of
this Agreement, a Change of Control shall mean: (1) any "person"
or "group," within the meaning of Section 13(d) of 14(d)(2) of
the Exchange Act, becomes the ultimate "beneficial owner," as
defined in Rule 13d-3 under the Exchange Act, of more than 35% of
the total voting power of the Voting Stock of the Company, the
Manager or DCC (as the case may be), on a fully diluted basis and
such ownership represents a greater percentage of the total
voting power of the Voting Stock of the Company, the Manager or
DCC (as the case may be), other than is held by the controlling
stockholder and its Affiliates of the Company Manager or ACC (as
the case may be), on the Effective Date; (2) Individuals who on
the Effective Date constitute the Board of Directors, together
with any new directors whose election by the Board of Directors
or whose nomination for election by the stockholders of the
Company Manager or ACC (as the case may be), was approved by a
vote of at least a majority of the members of the Board of
Directors on the Effective Date or whose election or nomination
for election was previously so approved, case for any reason to
constitute a majority of the members of the Board of Directors
then in office; (3) the sale, lease, transfer, conveyance or
other disposition (other than by away of merger or
consolidation), in one or a series of related transactions, of
all or substantially all the combined assets of the Company,
taken as a whole, to any Person other than the Company Manager or
ACC (as the case may be), or any Affiliate thereof; or (4) the
adoption of a plan of liquidation or dissolution of the Company,
the Manager or DCC (as the case may be); and
(C) on ten (10) days' notice if the Company fails to
comply with the financial performance standards set forth on
Exhibit 3(c).
(iii) By Manager. Manager may terminate this Agreement on
ten (10) days' notice in the event of a material breach of this
Agreement by the Company (other than a payment default) which has
not been cured within sixty (60) days following notice thereof
from Manager.
(c) Remedies. The remedies set forth herein are not intended to be
exclusive, and all remedies shall be cumulative and may be exercised
concurrently with any other remedy available to Manager or the Company at law or
in equity. (i)
Section 6. Confidentiality.
(a) Confidentiality. Manager shall, and shall cause each of its
Affiliates, and each of its and their respective partners, members, managers,
shareholders, directors, officers, employees and agents (collectively, "Agents")
to keep secret and retain in strictest confidence and not use for any purpose
any and all Confidential Information relating to the Company or any member of
the Company and shall not disclose such information, and shall cause its Agents
not to disclose such information, to the same extent such information of the
Manager is protected by Manager.
(b) Company Property. Promptly following the termination of this
Agreement, Manager shall return to the Company all property of the Company, and
all copies thereof in its possession or under its control, and all tangible
embodiments of Confidential Information in its possession in whatever media such
Confidential Information is maintained.
(c) Injunctive Relief with Respect to Covenants. Manager acknowledges
and agrees that the covenants and obligations contained in this Section 6 relate
to special, unique and extraordinary matters and that a violation of any of the
terms of such covenants and obligations will cause the Company irreparable
injury for which adequate remedies are not available at law. Therefore, Manager
agrees that the Company shall be entitled to an injunction, restraining order,
or such other equitable relief as a court of competent jurisdiction may deem
necessary or appropriate to restrain Manager and its Affiliates from committing
any violation of the covenants and obligations contained in this Section 6.
These injunctive remedies are cumulative and are in addition to any other rights
and remedies the Company may have at law or in equity.
Section 7. Force Majeure. Neither of the parties will be liable for
nonperformance or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such nonperformance,
defective performance or late performance is due to reasons outside such party's
control, including acts of God, war (declared or undeclared), acts (including
failure to act) of any governmental authority, riots, revolutions, fire, floods,
explosions, sabotage, nuclear incidents, lightning, weather, earthquakes,
storms, sinkholes, epidemics, strikes, or delays of suppliers or subcontractors
for the same causes.
Section 8. Books and Records. Manager shall maintain and oversee the
maintenance and preparation of proper and complete records and books of account
for tax and financial purposes with respect to its management of the operation
of the Business, including all such transactions and other matters as are
usually entered into records and books of account maintained by Persons engaged
in business of like character or as required by law. Manager shall maintain and
oversee the maintenance and preparation of complete records and books of the
Company for tax purposes. Books and records maintained for financial purposes
shall be maintained in accordance with GAAP, and books and records maintained
for tax purposes shall be maintained in accordance with the Code and applicable
Treasury Regulations. Manager shall also provide at the Company's request and
expense any and all such additional statements or reports as may be reasonably
necessary to the Company's oversight and control of the Business. The Company
shall have control over and access, at all reasonable times during normal
business hours, to the books and records of the Company maintained by Manager
pursuant to this Section 8.
Section 9. Regulatory Compliance. Subject to the other provisions of this
Agreement, Manager shall cause the Company and its Subsidiaries, and their
respective Cellular Systems, to remain in compliance in all material respects
with applicable laws, rules and regulations, including rules and regulations
promulgated by the FAA and the FCC. Without limiting the generality of the
foregoing, the parties agree to comply with all applicable FCC rules and
regulations governing the Cellular Systems and the Licenses, and specifically
agree as follows:
(a) The Company (or its Subsidiaries which are the holders of the
Licenses) shall at all times maintain absolute control over, and retain the
ability to exercise the unfettered use of, the Licenses and the licensed
facilities provided thereunder, including the products and services to be
offered and the rates to be charged and the further right to terminate service
should public interest obligations under the applicable Licenses so require.
(b) Manager shall not represent itself as the holder of a License to
provide the Company Communications Services on any of the Cellular Systems of
the Company.
(c) Each customer (if any) billed by Manager shall be clearly advised
that service is provided over facilities licensed to the Company (or the
Subsidiary which is the holder of a License).
(d) Neither Manager nor the Company (or a Subsidiary which is a holder
of a License) shall represent itself as the legal representative of the other
before the FCC. Manager and the Company (and each Subsidiary which is the holder
of a License) will cooperate with the other with respect to FCC matters
concerning the Cellular Systems.
(e) The Company (and each Subsidiary which is the holder of a License)
shall (i) in cooperation with Manager, take all actions necessary to keep its
Licenses in force and shall prepare and submit to the FCC, or any other relevant
authority, all reports, applications, renewals, filings or other documents
necessary to keep its Licenses in force and in good standing; (ii) with all due
assistance which may be necessary from Manager, respond promptly to all FCC
correspondence or inquiries and will immediately notify Manager of the receipt
thereof; and (iii) promptly report any changes of its address to the FCC and to
Manager.
(f) The Company (and each Subsidiary which is the holder of a License)
and Manager are familiar with the rules of the FCC regarding the responsibility
of the holder of a License under the Communications Act and applicable FCC
rules, regulations and policies. Nothing in this Agreement is intended to
diminish or restrict the obligations of the Company (or a Subsidiary which is
the holder of a License) as an FCC license and both parties desire that this
Agreement be in compliance with the rules and regulations of the FCC. If the FCC
determines that any provision of this Agreement violates any FCC rule, policy or
regulation, all parties will make good faith efforts to immediately correct the
problem and bring this Agreement into compliance, consistent with the intent of
this Agreement.
Section 10. Dispute Resolution. If a dispute arises out of or relating to
this Agreement or the transactions contemplated hereby, or the construction,
interpretation, performance, breach, termination, enforceability or validity
hereof, whether such claim is based on rights, privileges or interests
recognized by or based upon contract, tort, fraud, misrepresentation, statute,
common law or any other legal or equitable theory, ("Dispute") and whether such
Dispute existed prior to or arises on or after the Effective Date, the dispute
resolution processes set forth herein shall apply.
(a) The parties shall first attempt to settle each Dispute through
good faith negotiations. The aggrieved party shall initiate such negotiations by
giving the other party(ies) written notice of the existence and nature of the
Dispute. The other party(ies) shall in a writing to the aggrieved party
acknowledge such notice of Dispute within ten (10) business days. Such
acknowledgment may also set forth any Dispute that the acknowledging party
desires to have resolved in accordance with this Section.
(b) Thereafter, if any Dispute is not resolved by the parties through
negotiation within thirty (30) calendar days of the date of the notice of
acknowledgment, either party may terminate informal negotiations with respect to
that Dispute and have the right, by delivery of written notice thereof (the
"Arbitration Notice") to the other party, to submit the matter to be finally
settled by arbitration in accordance with the Commercial Arbitration Rules then
in effect of the Owner Arbitration Association, as modified herein (the "AAA
Rules"). The place of arbitration shall be Oklahoma City, Oklahoma. All matters
so submitted to arbitration shall be settled by three arbitrators. Owner and
User shall each designate one arbitrator within 20 days of the delivery of the
Arbitration Notice. If either Owner or User fails so to timely designate an
arbitrator, the matter shall be resolved by the one arbitrator timely
designated. If two Arbitrators are selected, Owner and User shall cause the
designated arbitrators to mutually agree upon and to designate a third
arbitrator, provided, however, that failing such agreement within 45 days of
delivery of the Arbitration Notice, the third arbitrator shall be appointed in
accordance with the AAA Rules. Owner and User shall be responsible for the
payment of the fees and expenses of their respectively designated arbitrators
and shall bear equally the fees and expenses of the third arbitrator. Owner and
User shall cause the arbitrators to decide the matter to be arbitrated pursuant
hereto within 60 days after the appointment of the last appointed arbitrator.
The arbitral tribunal is not empowered to award damages in excess of
compensatory damages and each party hereby irrevocably waives any right to
recover punitive, exemplary or similar damages with respect to any Dispute. The
final decision of the majority of the arbitrators shall be furnished to Owner
and User in writing and shall constitute a conclusive determination of the
matter in question, binding upon Owner and User and shall not be contested by
either of them. Such decision may be used in a court of law only for the purpose
of seeking enforcement of the arbitrators' award. Any arbitration proceeding,
decision or award rendered hereunder and the validity, effect and interpretation
of this arbitration agreement shall be governed by the Federal Arbitration Act,
9 U.S.C. ss.ss.1-16, and judgment upon any award may be entered in any court of
competent jurisdiction.
(c) Pending the resolution of any Dispute not involving the entire
Agreement, the parties agree to continue the operation of the provisions of the
Agreement to the extent reasonably possible.
Section 11. Inspection Rights; Delivery of Information.
(a) Company's Right to Inspect. Manager will permit representatives of
the Company, at the Company's cost, during normal business hours and upon not
less than five business days' advanced written request, to (i) visit and inspect
during normal business hours Manager's properties and facilities which are
utilized in connection with Manager's provision of services to the Company
pursuant to this Agreement, including without limitation access to, and the
right to make copies of, books and records of the Company located at such
properties and facilities, and (ii) discuss with Manager's officers and
employees such properties and facilities and Manager's provision of services to
the Company pursuant to this Agreement. All such information shall be held in
confidence by the Company, except for disclosures made to the Company's
advisors, lenders and investors, or as required to be disclosed by process of
law or other applicable law.
(b) Notice of Certain Events. Promptly, and in any event within five
(5) business days after Manager has received notice or has otherwise become
aware thereof, Manager shall give the Company notice of (i) the commencement of
any material proceeding or investigation against the Company or Manager by or
before any governmental body or in any court or before any arbitrator which
would be likely to have a material adverse effect on Manager, the Business or
the Company, or on Manager's ability to perform its obligations hereunder, and
(ii) the occurrence or non-occurrence of any event (x) which constitutes, or
which with the passage of time or giving of notice or both would constitute, a
default by the Company or Manager under this Agreement or under any other
material agreement to which the Company or Manager is a party or by which its
properties may be bound, and (y) would be likely to have a material adverse
effect on Manager, the Business or the Company, or on Manager's ability to
perform its obligations hereunder, giving in each case the details thereof and
specifying the action being taken or proposed to be taken with respect thereto.
Promptly upon receipt thereof, Manager shall deliver to the Company copies of
any material notice or report regarding any License from the grantor of such
license or from any Governmental Authority regarding the Business or the
Company.
(c) Other Information. From time to time and promptly upon each
request, Manager shall provide the Company with such data, certificates,
reports, statements, financial projections, documents or further information
regarding the business, equity owners, assets, liabilities, financial position
or results of operations of Manager, as may be reasonably requested by the
Company.
Section 12. Miscellaneous.
(a) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument.
(b) Construction. Each of the parties hereto acknowledge that it has
reviewed this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments thereto. The
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular,
plural as the context may require. Unless otherwise specified, (i) the terms
"hereof," "herein," and similar terms refer to this Agreement as a whole, (ii)
references herein to Articles or Sections refer to articles or sections of this
Agreement and (iii) the word "including" connotes the words "including without
limitation unless the context requires otherwise.
(c) Benefit; Assignment. This Agreement shall be binding upon and
inure to the benefit of all parties hereto and their respective successors and
permitted assigns; provided, however, that Manager shall not assign or otherwise
transfer its rights and obligations under this Agreement (other than to another
wholly owned subsidiary of Xxxxxx Communications Corporation that has
substantially the same ability to perform its obligations hereunder as the
original Manager) without the prior written consent of the Company. The parties
agree that, upon any termination of this Agreement by the Company pursuant to
Section 5(b)(i) or Section 5(b)(ii), the rights and (to the extent provided
herein) obligations of Manager shall be deemed to have been assigned to the New
Provider; provided, that no such termination shall relieve Manager of any
liability which at the time of termination had already accrued to-Manager or
which thereafter may accrue in respect of any act or omission of Manager or its
Affiliates prior to such termination.
(d) Amendment. This Agreement may not be amended except by a writing
signed by each of the parties.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws, and not the laws of conflict, of the State
of Oklahoma.
(f) Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall for any reason or to any
extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but, rather, shall be enforced to the extent permitted by law,
so long as the economic and legal substance of this Agreement and the actions
contemplated hereby is not affected in any manner adverse to either party.
(g) Further Assurances. The parties agree that they will take all such
further actions and execute and deliver all such further instruments and
documents as may be required in order to effectuate the agreements set forth in
this Agreement.
(h) Waiver. No failure or delay on the part of the parties or any of
them in exercising any right, power or privilege hereunder, nor any course of
dealing among the parties or any of them shall operate as a waiver of any such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude the simultaneous or later exercise of any
other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and are not exclusive of any rights or remedies, which
the parties or any of them would otherwise have.
(i) Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given or made (i) upon delivery if
delivered personally (by courier service or otherwise) or (ii) upon confirmation
of dispatch if sent by facsimile transmission (which confirmation shall be
sufficient if shown on the journal produced by the facsimile machine used for
such transmission), and all legal process with regard hereto shall be validly
served when served in accordance with applicable law, in each case to the
applicable addresses set forth below (or such other address as the recipient may
specify in accordance with this Section):
If to Manager:
Xxxxxx Cellular Systems, Inc.
c/o Dobson Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Sr. Corporate Counsel
Fax: (000) 000-0000
If to the Company:
American Cellular Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
* * *
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have set their hands effective as of the
date first written above.
COMPANY:
AMERICAN CELLULAR CORPORATION
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
MANAGER:
XXXXXX CELLULAR SYSTEMS, INC.
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
