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EXHIBIT 10.11
SPRINT PCS
SERVICES AGREEMENT
Between
SPRINT SPECTRUM L.P.
and
ALAMOSA WISCONSIN
LIMITED PARTNERSHIP
December 6, 1999
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TABLE OF CONTENTS
PAGE
1. ENGAGEMENT OF SPRINT SPECTRUM.................................................................................1
1.1 Engagement of Sprint Spectrum...................................................................1
1.2 Reliance on Manager.............................................................................1
1.3 Non-exclusive Service...........................................................................1
1.4 Manager's Use of Services.......................................................................2
2. SERVICES......................................................................................................2
2.1 Available Services; Selected Services...........................................................2
2.1.1 Available Services.....................................................................2
2.1.2 Selected Services......................................................................2
2.1.3 Changes to Selected Services...........................................................2
2.1.4 Performance of Selected Services.......................................................3
2.2 Third Party Vendors.............................................................................3
2.3 Contracts.......................................................................................3
3. FEES FOR SELECTED SERVICES....................................................................................3
3.1 Payment of Fees.................................................................................3
3.2 Adjustment of Fees..............................................................................3
3.3 Late Payments...................................................................................4
3.4 Taxes...........................................................................................4
4. TERM; TERMINATION; EFFECT OF TERMINATION......................................................................4
4.1 Term............................................................................................4
4.2 Effect of Termination...........................................................................4
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION...................................................................4
5.1 Books and Records...............................................................................4
5.1.1 General................................................................................4
5.1.2 Audit..................................................................................4
5.1.3 Contesting an Audit....................................................................5
5.2 Confidential Information........................................................................5
6. INDEMNIFICATION...............................................................................................6
6.1 Indemnification by Sprint Spectrum..............................................................6
6.2 Indemnification by Manager......................................................................7
6.3 Procedure.......................................................................................7
6.3.1 Notice.................................................................................7
6.3.2 Defense by Indemnitor..................................................................7
6.3.3 Defense by Indemnitee..................................................................8
6.3.4 Costs..................................................................................8
7. DISPUTE RESOLUTION............................................................................................8
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7.1 Negotiation.....................................................................................8
7.2 Unable to Resolve...............................................................................8
7.3 Attorneys and Intent............................................................................8
8. REPRESENTATIONS AND WARRANTIES................................................................................8
8.1 Due Incorporation or Formation; Authorization of Agreements.....................................9
8.2 Valid and Binding Obligation....................................................................9
8.3 No Conflict; No Default.........................................................................9
8.4 Litigation......................................................................................9
9. GENERAL PROVISIONS............................................................................................9
9.1 Notices.........................................................................................9
9.2 Construction....................................................................................9
9.3 Headings........................................................................................9
9.4 Further Action.................................................................................10
9.5 Specific Performance...........................................................................10
9.6 Entire Agreement; Amendments...................................................................10
9.7 Limitation on Rights of Others.................................................................10
9.8 Waivers; Remedies..............................................................................10
9.9 Waiver of Jury Trial...........................................................................11
9.10 Binding Effect.................................................................................11
9.11 Governing Law..................................................................................11
9.12 Severability...................................................................................11
9.13 Limitation of Liability........................................................................11
9.14 No Assignment; Exceptions......................................................................11
9.15 Disclaimer of Agency...........................................................................11
9.16 Independent Contractors........................................................................11
9.17 Expense........................................................................................12
9.18 General Terms..................................................................................12
9.19 Conflicts with Management Agreement............................................................12
9.20 Master Signature Page..........................................................................12
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SPRINT PCS SERVICES AGREEMENT
This SERVICES AGREEMENT is made as of December 06,1999, by and between
SPRINT SPECTRUM L.P., a Delaware limited partnership ("SPRINT SPECTRUM"), and
ALAMOSA WISCONSIN LIMITED PARTNERSHIP, a Wisconsin limited partnership (but
not any Related Party) ("MANAGER"). THE DEFINITIONS FOR THIS AGREEMENT ARE SET
FORTH ON THE "SCHEDULE OF DEFINITIONS."
RECITALS
A. Manager and the holder of the License ("Sprint PCS") are
entering into a Management Agreement contemporaneously with the execution of
this agreement, under which Manager will design, construct, operate, manage and
maintain a wireless services network in the Service Area in accordance with
Sprint PCS standards and will offer and promote Sprint PCS Products and Services
that operate on the Sprint PCS Network.
B. Manager desires to enter into this agreement with Sprint
Spectrum, under which Sprint Spectrum may furnish certain services to Manager to
assist Manager to build out, operate, manage and maintain the Service Area
Network under the License.
AGREEMENT
In consideration of the recitals and mutual covenants and agreements
contained in this agreement, the sufficiency of which are hereby acknowledged,
the parties, intending to be bound, agree as follows:
1. ENGAGEMENT OF SPRINT SPECTRUM
1.1 ENGAGEMENT OF SPRINT SPECTRUM. Manager engages Sprint Spectrum
to assist Manager with certain specified services in connection with the
operations of Manager and in building out, operating, managing and maintaining
the Service Area Network, subject to the terms and conditions of this agreement.
Sprint Spectrum accepts the engagement and will use the same effort and
demonstrate the same care in performing its obligations under this agreement as
it uses in conducting its own business. Manager will use the efforts and
demonstrate the care necessary for Sprint Spectrum to meet its obligations under
this agreement. When providing the Selected Services, Sprint Spectrum will
provide those services to Manager in the same manner it provides those services
to its own business, including the use of third party vendors to provide certain
Selected Services.
1.2 RELIANCE ON MANAGER. Manager understands that Sprint
Spectrum's ability to provide the Selected Services will depend largely on
Manager's compliance with the Sprint PCS Program Requirements under the
Management Agreement and cooperation with Sprint Spectrum. Manager agrees to
comply with such requirements and to cooperate with Sprint Spectrum to enable
Sprint Spectrum to perform its obligations under this agreement.
1.3 NON-EXCLUSIVE SERVICE. Nothing contained in this agreement
confers upon Manager an exclusive right to any of the Available Services. Sprint
Spectrum may contract with others to provide expertise and services identical or
similar to those to be made available or provided to Manager under this
agreement.
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1.4 MANAGER'S USE OF SERVICES. Manager agrees it will only use the
Selected Services in connection with its Service Area Network. Manager will not
use the Selected Services outside the Service Area or in connection with any
other business.
2. SERVICES
2.1 AVAILABLE SERVICES; SELECTED SERVICES.
2.1.1 AVAILABLE SERVICES. Subject to the terms of this
agreement, Manager may obtain any of the Available Services from Sprint Spectrum
in accordance with the provisions of this Section 2.1. The Available Services
offered from time to time and the fees charged for such Available Services will
be set forth on the then current Exhibit 2.1.1 (the "Available Services and Fees
Schedule"). If Sprint Spectrum offers any new Available Service, it will deliver
a new Exhibit 2.1.1 indicating the new service and the fee for the new service.
Manager may select one or more of the categories of Available
Services. If Manager selects a particular category of services it must take and
pay for all of the services under the category selected; Manager may not select
only particular services within that category.
If Sprint Spectrum determines to no longer offer an Available
Service and the service is not a Selected Service, then Sprint Spectrum may give
Manager written notice at any time during the term of this agreement that Sprint
Spectrum no longer offers the Available Service.
Sprint Spectrum may modify Exhibit 2.1.1 from time to time.
Exhibit 2.1.1 will be deemed amended upon delivery of the new Exhibit 2.1.1 to
Manager.
2.1.2 SELECTED SERVICES. During the term of this agreement,
and subject to the terms of this agreement, Manager has selected, and Sprint
Spectrum has agreed to furnish or cause to be furnished to Manager, the
Available Services listed on EXHIBIT 2.1.2 (which listed services will be the
Selected Services). Sprint Spectrum may require from time to time that certain
Available Services be Selected Services where necessary to comply with legal or
regulatory requirements (e.g., mandatory provision of emergency 911 service) or
applicable operating constraints (e.g., delivery of merchandise to the regional
distribution centers of national retail distributors).
2.1.3 CHANGES TO SELECTED SERVICES. If Manager determines
it no longer requires a Selected Service, then Manager must give Sprint Spectrum
written notice at least 3 months prior to the date on which Manager wishes to
discontinue its use of such Selected Service.
If Sprint Spectrum determines to no longer offer an Available
Service and such service is one of Manager's Selected Services, then Sprint
Spectrum must give Manager written notice at least 9 months prior to its
discontinuance of such Available Service that Sprint Spectrum will no longer
offer such Available Service. If the Available Service to be discontinued is
required by Sprint Spectrum to be a Selected Service, then Sprint Spectrum will
use commercially reasonable efforts to (a) help Manager provide the service
itself or find another vendor to provide the service, and (b) facilitate
Manager's transition to the new service provider.
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2.1.4 PERFORMANCE OF SELECTED SERVICES. Sprint Spectrum may
select the method, location and means of providing the Selected Services. If
Sprint Spectrum wishes to use Manager's facilities to provide the Selected
Services, Sprint Spectrum must obtain Manager's prior written consent.
2.2 THIRD PARTY VENDORS. Some of the Available Services might be
provided by third party vendors under arrangements between Sprint Spectrum and
the third party vendors. In some instances, Manager may receive Available
Services from a third party vendor under the same terms and conditions that
Sprint Spectrum receives such services. In other instances, Manager may receive
Available Services under the terms and conditions set forth in an agreement
between Manager and the third party vendor. If Manager wishes to engage a third
party vendor to provide Available Services, Selected Services, or Available
Services that Sprint Spectrum will no longer offer, Manager must first obtain
Sprint Spectrum's prior written consent, which consent will not be unreasonably
withheld. Before Manager may obtain from the third party vendor any Available
Services, Selected Services, or Available Services that Sprint Spectrum will no
longer offer, such vendor must execute an agreement prepared by Sprint Spectrum
that obligates the vendor to maintain the confidentiality of any proprietary
information and that prohibits the vendor from using any proprietary technology,
information or methods for its benefit or the benefit of any other person or
entity. Manager's use of a third party vendor that is not providing Available
Services to Manager on behalf of Sprint PCS under the Management Agreement will
not qualify for assumed compliance with the Program Requirements under Sections
7.1 (a)(ii) or 8.1(b) of the Management Agreement.
2.3 CONTRACTS. Manager will notify Sprint Spectrum of any contract
or other arrangement Manager has with any other party that will affect how
Sprint Spectrum is to provide the Selected Services.
3. FEES FOR SELECTED SERVICES
3.1 PAYMENT OF FEES. Sprint Spectrum and Manager agree that the
fees for the Available Services will initially be those set forth on Exhibit
2.1.1, which fees represent an adjustment to any fees paid by Sprint PCS to
Manager under Section 10 of the Management Agreement. The monthly charge for any
fees based on the number of subscribers of the Service Area Network will be
determined based on the number of subscribers as of the 15th day of the month
for which the charge is being calculated. Manager agrees to pay the fees to
Sprint Spectrum within 20 days after the date of the invoice. If Manager enters
into an agreement with a third party vendor under Section 2.2, Manager agrees to
pay the fees for the services rendered by the third party vendor in accordance
with the terms and conditions of such agreement.
3.2 ADJUSTMENT OF FEES. Sprint Spectrum may change the fee for any
service it provides once during any 12-month period by delivering a new Exhibit
2.1.1 to Manager. Exhibit 2.1.1 will be deemed amended on the effective date
noted on the new Exhibit 2.1.1, which will be at least 30 days after delivering
the new Exhibit 2.1.1. Manager must notify Sprint Spectrum in writing before the
effective date of the new Exhibit 2.1.1 if Manager wishes to discontinue a
Selected Service for which the price is being increased (a "CANCELLED SERVICE").
If Manager discontinues a Selected Service under this Section 3.2, Sprint
Spectrum will, at Manager's option, continue to provide the Cancelled Service
and to charge Manager the current fee (i.e., the fee under the Exhibit 2.1.1 in
effect on the date Manager gives its cancellation notice to Sprint Spectrum) for
the Cancelled Service for up to 9 months from the date Sprint Spectrum gives
Manager notice of the price change or until Manager no longer needs the
Cancelled Service, whichever occurs first. If Sprint Spectrum continues to
provide the Cancelled Service after the 9-month period, Sprint Spectrum will
apply the new fee, under the new Exhibit 2.1.1, and such fee will be applied
retroactively as of the effective date of the
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new schedule. Manager agrees to pay such retroactive charge within 10 days after
the date of the invoice for such charge.
3.3 LATE PAYMENTS. Any payment due under this Section 3 that is
not paid by Manager to Sprint Spectrum in accordance with the terms of this
agreement will bear interest at the Default Rate beginning (and including) the
6th day after the due date until (and including) the date on which such payment
is made.
3.4 TAXES. Manager will pay or reimburse Sprint Spectrum for any
sales, use, gross receipts or similar tax, administrative fee,
telecommunications fee or surcharge for taxes or fees levied by a governmental
authority on the fees and charges payable to Sprint Spectrum by Manager.
4. TERM; TERMINATION; EFFECT OF TERMINATION
4.1 TERM. This agreement commences on the date of execution and
continues until the Management Agreement terminates. This agreement
automatically terminates upon termination of the Management Agreement. Neither
party may terminate this agreement for any reason other than the termination of
the Management Agreement.
4.2 EFFECT OF TERMINATION. Upon the termination of this agreement,
all rights and obligations of each party under this agreement will immediately
cease, except that:
(a) Any rights arising out of a breach of any terms of
this agreement will survive any termination of this agreement;
(b) The provisions of this Section 4.2 and Sections 5.2,
6, 7, and 9 will survive any termination of this agreement; and
(c) The payment obligations under Section 3 will survive
any termination of this agreement if, and to the extent, any fees have accrued
or are otherwise due and owing from Manager to Sprint Spectrum or any Sprint
Spectrum Related Party as of the date of termination of this agreement.
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION
5.1 BOOKS AND RECORDS.
5.1.1 GENERAL. Each party must keep and maintain books and
records to support and document any fees, costs, expenses or other charges due
in connection with the provisions set forth in this agreement. The records must
be retained for a period of at least 3 years after the fees, costs, expenses or
other charges to which the records relate have accrued and have been paid, or
such other period as may be required by law.
5.1.2 AUDIT. On reasonable advance written notice by the
Manager, but no more frequently than annually, Sprint PCS will provide a report
issued in conformity with Statement of Auditing Standard No. 70 "Reports on the
Processing of Transactions by Service Organizations" ("TYPE II REPORT" or
"MANAGER MANAGEMENT REPORT"). Such report will be prepared by independent
auditors and will provide an opinion on the controls placed in operation and
tests of operating effectiveness of those controls in effect at Sprint PCS over
the Manager Management Processes. "Manager Management Processes" include those
services generally
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provided within the Management Agreement, primarily billing and collection of
Collected Revenues. The Manager is responsible for costs incurred attributable
to such requested procedures with respect to the services provided under this
agreement, including without limitation discussion of the billing and collection
of Collected Revenues. This report will be made available to the other party
upon such other party's request.
5.1.3 CONTESTING AN AUDIT. If the party that did not select
the independent auditor does not agree with the findings of the audit, then such
party can contest the findings by providing notice of such disagreement to the
other party (the "DISPUTE NOTICE"). The date of delivery of such notice is the
"DISPUTE NOTICE DATE." If the parties are unable to resolve the disagreement
within 10 Business Days after the Dispute Notice Date, they will resolve the
disagreement in accordance with the following procedures.
The two parties and the auditor that conducted the audit will all agree
on an independent certified public accountant with a regional or national
accounting practice in the wireless telecommunications industry (the "ARBITER")
within 15 Business Days after the Dispute Notice Date. If, within 15 Business
Days after the Dispute Notice Date, the three parties fail to agree on the
Arbiter, then at the request of either party to this agreement, the Arbiter will
be selected pursuant to the rules then in effect of the American Arbitration
Association. Each party will submit to the Arbiter within 5 Business Days after
its selection and engagement all information reasonably requested by the Arbiter
to enable the Arbiter to independently resolve the issue that is the subject of
the Dispute Notice. The Arbiter will make its own determination of the amount of
fees, costs, expenses or other charges payable under this agreement with respect
to the period audited. The Arbiter will issue a written report of its
determination in reasonable detail and will deliver a copy of the report to the
parties within 10 Business Days after the Arbiter receives all of the
information reasonably requested. The determination made by the Arbiter will be
final and binding and may be enforced by any court having jurisdiction. The
parties will cooperate fully in assisting the Arbiter and will take such actions
as are necessary to expedite the completion of and to cause the Arbiter to
expedite its assignment.
If the amount owed by a contesting party is reduced by more than 10% or
the amount owed to a contesting party is increased by more than 10% then the
noncontesting party will pay the costs and expenses of the Arbiter, otherwise
the contesting party will pay the costs and expenses of the Arbiter.
5.2 CONFIDENTIAL INFORMATION.
(a) Except as specifically authorized by this agreement,
each of the parties must, for the term of this agreement and 3 years after the
date of termination of this agreement, keep confidential, not disclose to others
and use only for the purposes authorized in this agreement, all Confidential
Information disclosed by the other party to the party in connection with this
agreement, except that the foregoing obligation will not apply to the extent
that any Confidential Information:
(i) is or becomes, after disclosure to a party,
publicly known by any means other than through unauthorized acts or
omissions of the party or its agents; or
(ii) is disclosed in good faith to a party by a
third party entitled to make the disclosure.
(b) Notwithstanding the foregoing, a party may use, disclose or
authorize the disclosure of Confidential Information that it receives that:
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(i) has been published or is in the public
domain, or that subsequently comes into the public domain, through no
fault of the receiving party;
(ii) prior to the effective date of this
agreement was properly within the legitimate possession of the
receiving party, or subsequent to the effective date of this agreement,
is lawfully received from a third party having rights to publicly
disseminate the Confidential Information without any restriction and
without notice to the recipient of any restriction against its further
disclosure;
(iii) is independently developed by the receiving
party through persons or entities who have not had, either directly or
indirectly, access to or knowledge of the Confidential Information;
(iv) is disclosed to a third party consistent
with the terms of the written approval of the party originally
disclosing the information;
(v) is required by the receiving party to be
produced under order of a court of competent jurisdiction or other
similar requirements of a governmental agency, and the Confidential
Information will otherwise continue to be Confidential Information
required to be held confidential for purposes of this agreement;
(vi) is required by the receiving party to be
disclosed by applicable law or a stock exchange or association on which
the receiving party's securities (or those of its Related Parties) are
or may become listed; or
(vii) is disclosed by the receiving party to a
financial institution or accredited investor (as that term is defined
in Rule 501 (a) under the Securities Act of 1933) that is considering
providing financing to the receiving party and which financial
institution or accredited investor has agreed to keep the Confidential
Information confidential in accordance with an agreement at least as
restrictive as this Section 5.
(c) The party making a disclosure under Sections 5.2(b)(v),
5.2(b)(vi) or 5.2(b)(vii) must inform the non-disclosing party as promptly as is
reasonably necessary to enable the non-disclosing party to take action to, and
use the disclosing party's reasonable best efforts to, limit the disclosure and
maintain confidentiality to the extent practicable.
(d) Manager will not, except when serving in the capacity of
Manager under this agreement, use any Confidential Information of any kind that
it receives under or in connection with this agreement. For example, if Manager
operates a wireless company in a different licensed area, Manager may not use
any of the Confidential Information received under or in connection with this
agreement in operating its other wireless business.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SPRINT SPECTRUM. Sprint Spectrum agrees to
indemnify, defend and hold harmless Manager, its directors, managers, officers
and employees from and against any and all claims, demands, causes of action,
losses, actions, damages, liability and expense, including costs and reasonable
attorneys' fees, against Manager, its directors, managers, officers and
employees arising from or relating to the violation by Sprint Spectrum, its
directors, officers, employees, contractors, subcontractors, agents or
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representatives of any law, regulation or ordinance applicable to Sprint
Spectrum in its performance of the Selected Services, or by Sprint Spectrum's,
or its directors', officers', employees', contractors', subcontractors', agents'
or representatives' breach of any representation, warranty or covenant contained
in this agreement, except where and to the extent the claim, demand, cause of
action, loss, action, damage, liability and expense results from the negligence
or willful misconduct of Manager, its directors, managers, officers, employees,
agents or representatives. Sprint Spectrum's indemnification obligations under
this Section 6.1 do not apply to any third party vendors that provide services
(including Selected Services) directly to Manager or Manager's Related Parties
under a separate agreement.
6.2 INDEMNIFICATION BY MANAGER. Manager agrees to indemnify,
defend and hold harmless Sprint Spectrum, its directors, officers and employees
from and against any and all claims, demands, causes of action, losses, actions,
damages, liability and expense, including costs and reasonable attorneys' fees,
against Sprint Spectrum, its directors, officers and employees arising from or
relating to Manager's, or its directors', managers', officers', employees',
contractors', subcontractors', agents' or representatives' violation of any law,
regulation or ordinance applicable to Manager, or by Manager's, or its
directors', managers', officers', employees', contractors', subcontractors',
agents' or representatives' breach of any representation, warranty or covenant
contained in this agreement, Manager's ownership of the Operating Assets or the
operation of the Service Area Network, except where and to the extent the claim,
demand, cause of action, loss, action, damage, liability and expense results
from the negligence or willful misconduct of Sprint Spectrum, its directors,
officers, employees, contractors, subcontractors, agents or representatives.
6.3 PROCEDURE.
6.3.1 NOTICE. Any party being indemnified ("INDEMNITEE")
will give the party making the indemnification ("INDEMNITOR") written notice as
soon as practicable but no later than 5 Business Days after the party becomes
aware of the facts, conditions or events that give rise to the claim for
indemnification if:
(1) any claim or demand is made or liability is
asserted against Indemnitee; or
(2) any suit, action, or administrative or legal
proceeding is instituted or commenced in which Indemnitee is involved
or is named as a defendant either individually or with others.
Failure to give notice as described in this Section 6.3.1 does not
modify the indemnification obligations of this provision, except if Indemnitor
is harmed by failure to provide timely notice to Indemnitor, then Indemnitor
does not have to indemnify Indemnitee for the harm caused by the failure to give
the timely notice.
6.3.2 DEFENSE BY INDEMNITOR. If within 30 days after giving notice
Indemnitee receives written notice from Indemnitor stating that Indemnitor
disputes or intends to defend against the claim, demand, liability, suit, action
or proceeding, then Indemnitor will have the right to select counsel of its
choice and to dispute or defend against the claim, demand, liability, suit,
action or proceeding, at its expense.
Indemnitee will fully cooperate with Indemnitor in the dispute or
defense so long as Indemnitor is conducting the dispute or defense diligently
and in good faith. Indemnitor is not permitted to settle the dispute or claim
without the prior written approval of Indemnitee, which approval will not be
unreasonably withheld. Even though Indemnitor selects counsel of its choice,
Indemnitee has the right to retain additional representation by counsel of its
choice to participate in the defense at Indemnitee's sole cost and expense.
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6.3.3 DEFENSE BY INDEMNITEE. If no notice of intent to
dispute or defend is received by Indemnitee within the 30-day period, or if a
diligent and good faith defense is not being or ceases to be conducted,
Indemnitee has the right to dispute and defend against the claim, demand or
other liability at the sole cost and expense of Indemnitor and to settle the
claim, demand or other liability, and in either event to be indemnified as
provided in this Section 6. Indemnitee is not permitted to settle the dispute or
claim without the prior written approval of Indemnitor, which approval will not
be unreasonably withheld.
6.3.4 COSTS. Indemnitor's indemnity obligation includes
reasonable attorneys' fees, investigation costs, and all other reasonable costs
and expenses incurred by Indemnitee from the first notice that any claim or
demand has been made or may be made, and is not limited in any way by any
limitation on the amount or type of damages, compensation, or benefits payable
under applicable workers' compensation acts, disability benefit acts, or other
employee benefit acts.
7. DISPUTE RESOLUTION
7.1 NEGOTIATION. The parties will attempt in good faith to resolve
any dispute arising out of or relating to this agreement promptly by negotiation
between or among representatives who have authority to settle the controversy.
Either party may escalate any dispute not resolved in the normal course of
business to the appropriate (as determined by the party) officers of the parties
by providing written notice to the other party.
Within 10 Business Days after delivery of the notice, the appropriate
officers of each party will meet at a mutually acceptable time and place, and
thereafter as often as they deem reasonably necessary, to exchange relevant
information and to attempt to resolve the dispute.
Either party may elect, by giving written notice to the other party, to
escalate any dispute arising out of or relating: to the determination of fees
that is not resolved in the normal course of business or by the audit process
set forth in Sections 5.1.2 and 5.1.3, first to the appropriate financial or
accounting officers to be designated by each party. The designated officers will
meet in the manner described in the preceding paragraph. If the matter has not
been resolved by the designated officers within 30 days after the notifying
party's notice, either party may elect to escalate the dispute to the
appropriate (as determined by the party) officers in accordance with the prior
paragraphs of this Section 7.1.
7.2 UNABLE TO RESOLVE. If a dispute has not been resolved within
60 days after the notifying party's notice, the parties will continue to operate
under this agreement and xxx the other party for damages or seek other
appropriate remedies as provided in this agreement, except neither party may
bring a suit for damages based on an event that occurs during the first two
years of this agreement.
7.3 ATTORNEYS AND INTENT. If an officer intends to be accompanied
at a meeting by an attorney, the other party's officer will be given at least 3
Business Days prior notice of the intention and may also be accompanied by an
attorney. All negotiations under this Section 7 are confidential and will be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Civil Procedure and state rules of evidence and civil procedure.
8. REPRESENTATIONS AND WARRANTIES
Each party for itself makes the following representations and
warranties to the other party:
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8.1 DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENTS.
The party is either a corporation, limited liability company, or limited
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization. Manager is qualified to do business and
in good standing in every jurisdiction in which the Service Area is located. The
party has the full power and authority to execute and deliver this agreement and
to perform its obligations under this agreement.
8.2 VALID AND BINDING OBLIGATION. This agreement constitutes the
valid and binding obligation of the party, enforceable in accordance with its
terms, except as may be limited by principles of equity or by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
8.3 NO CONFLICT; NO DEFAULT. Neither the execution, delivery and
performance of this agreement nor the consummation by the party of the
transactions contemplated in this agreement will conflict with, violate or
result in a breach of (a) any law, regulation, order, writ, injunction, decree,
determination or award of any governmental authority or any arbitrator,
applicable to such party, or (b) any term, condition or provision of the
articles of incorporation, certificate of limited partnership, certificate of
organization, bylaws, partnership agreement or limited liability company
agreement (or other governing documents) of such party or of any material
agreement or instrument to which such party is or may be bound or to which any
of its material properties or assets is subject.
8.4 LITIGATION. No action, suit, proceeding or investigation is
pending or, to the knowledge of the party, threatened against or affecting the
party or any of its properties, assets or businesses in any court or before or
by any governmental agency that could, if adversely determined, reasonably be
expected to have a material adverse effect on the party's ability to perform its
obligations under this agreement. The party has not received any currently
effective notice of any default that could reasonably be expected to result in a
breach of the preceding sentence.
9. GENERAL PROVISIONS
9.1 NOTICES. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this agreement must be in
writing and mailed (certified or registered mail, postage prepaid, return
receipt requested), sent by hand or overnight courier, or sent by facsimile
(with acknowledgment received and a copy sent by overnight courier), charges
prepaid and addressed described on the Notice Address Schedule attached to the
Master Signature Page, or to any other address or number as the person or entity
may from time to time specify by written notice to the other parties.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given when
received.
9.2 CONSTRUCTION. This agreement will be construed simply
according to its fair meaning and not strictly for or against either party.
9.3 HEADINGS. The table of contents, section and other headings
contained in this agreement are for reference purposes only and are not intended
to describe, interpret, define, limit or expand the scope, extent or intent of
this agreement.
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9.4 FURTHER ACTION. Each party agrees to perform all further acts
and execute, acknowledge, and deliver any documents that may be reasonably
necessary, appropriate, or desirable to carry out the intent and purposes of
this agreement.
9.5 SPECIFIC PERFORMANCE. Each party agrees with the other party
that the party would be irreparably damaged if any of the provisions of this
agreement were not performed in accordance with their specific terms and that
monetary damages alone would not provide an adequate remedy. Accordingly, in
addition to any other remedy to which the non-breaching party may be entitled,
at law or in equity, the non breaching party will be entitled to injunctive
relief to prevent breaches of this agreement and specifically to enforce the
terms and provisions of this agreement.
9.6 ENTIRE AGREEMENT; AMENDMENTS. The provisions of this agreement
and the Management Agreement (if Sprint Spectrum is a party to that agreement)
(including the exhibits to those agreements) set forth the entire agreement and
understanding between the parties as to the subject matter of this agreement and
supersede all prior agreements, oral or written, and other communications
between the parties relating to the subject matter of this agreement. Except for
Sprint Spectrum's right to amend the Available Services and the fees charged for
such services as shown on Exhibit 2.1.1, and Manager's right to amend the
Selected Services listed on Exhibit 2.1.2, this agreement may be modified or
amended only by a written amendment signed by persons or entities authorized to
bind each party.
9.7 LIMITATION ON RIGHTS OF OTHERS. Nothing in this agreement,
whether express or implied, will be construed to give any person or entity other
than the parties any legal or equitable right, remedy or claim under or in
respect of this agreement.
9.8 WAIVERS; REMEDIES. The observance of any term of this
agreement may be waived (whether generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce the
term, but any waiver is effective only if in a writing signed by the party
against which the waiver is to be asserted. Except as otherwise provided in this
agreement, no failure or delay of either party in exercising any power or right
under this agreement will operate as a waiver of the power or right, nor will
any single or partial exercise of any right or power preclude any other or
further exercise of the right or power or the exercise of any other right or
power.
Sprint Spectrum is not in breach of any covenant in this agreement, if
failure of such party to comply with such covenant or Sprint Spectrum's
non-compliance with the covenant results primarily from:
(i) any FCC order or any other injunction issued
by any governmental authority impeding the ability to comply with the
covenant;
(ii) the failure of any governmental authority to
grant any consent, approval, waiver, or authorization or any delay on
the part of any governmental authority in granting any consent,
approval, waiver or authorization;
(iii) the failure of any vendor to deliver in a
timely manner any equipment or service; or
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(iv) any act of God, act of war or insurrection,
riot, fire, accident, explosion, labor unrest, strike, civil unrest,
work stoppage, condemnation or any similar cause or event not
reasonably within the control of Sprint Spectrum.
9.9 WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
9.10 BINDING EFFECT. Except as otherwise provided in this
agreement, this agreement is binding upon and inures to the benefit of the
parties and their respective and permitted successors, transferees, and assigns,
including any permitted successor, transferee or assignee of the Management
Agreement. The parties intend that this agreement bind only the party signing
this agreement and that the agreement is not binding on the Related Parties of a
party unless the agreement provides that Related Parties are bound.
9.11 GOVERNING LAW. The internal laws of the State of Missouri
(without regard to principles of conflicts of law) govern the validity of this
agreement, the construction of its terms, and the interpretation of the rights
and duties of the parties.
9.12 SEVERABILITY. The parties intend every provision of this
agreement to be severable. If any provision of this agreement is held to be
illegal, invalid, or unenforceable for any reason, the parties intend that a
court enforce the provision to the maximum extent permissible so as to effect
the intent of the parties (including the enforcement of the remaining
provisions). If necessary to effect the intent of the parties, the parties will
negotiate in good faith to amend this agreement to replace the unenforceable
provision with an enforceable provision that reflects the original intent of the
parties.
9.13 LIMITATION OF LIABILITY. NO PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES, OR LOSS OF PROFITS, ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE
CONDUCT OF BUSINESS UNDER, OR BREACH OF, THIS AGREEMENT, EXCEPT WHERE SUCH
DAMAGES OR LOSS OF PROFITS ARE CLAIMED BY OR AWARDED TO A THIRD PARTY IN A CLAIM
OR ACTION AGAINST WHICH A PARTY TO THIS AGREEMENT HAS A SPECIFIC OBLIGATION TO
INDEMNIFY ANOTHER PARTY TO THIS AGREEMENT.
9.14 NO ASSIGNMENT; EXCEPTIONS. This agreement may only be assigned
in conjunction with and to the same party or parties to whom the Management
Agreement has been validly assigned under the Management Agreement's terms and
conditions.
9.15 DISCLAIMER OF AGENCY. Neither party by this agreement makes
the other party a legal representative or agent of the party, nor does either
party have the right to obligate the other party in any manner, except if the
other party expressly permits the obligation by the party or except for
provisions in this agreement expressly authorizing one party to obligate the
other.
9.16 INDEPENDENT CONTRACTORS. The parties do not intend to create
any partnership, joint venture or other profit-sharing arrangement,
landlord-tenant or lessor-lessee relationship, employer-employee
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relationship, or any other relationship other than that expressly provided in
this agreement. Neither party to this agreement has any fiduciary duty to the
other party.
9.17 EXPENSE. Each party bears the expense of complying with this
agreement except as otherwise expressly provided in this agreement.
9.18 GENERAL TERMS.
(a) This agreement, including the attached Schedule of
Definitions, is to be interpreted in accordance with the following rules of
construction:
(i) The definitions in this agreement apply
equally to both the singular and plural forms of the terms defined
unless the context otherwise requires;
(ii) The words "include," "includes" and
"including" are deemed to be followed by the phrase "without
limitation";
(iii) All references in this agreement to Sections
and Exhibits are references to Sections of, and Exhibits to, this
agreement, unless otherwise specified; and
(iv) All references to any agreement or other
instrument or statute or regulation are to it as amended and
supplemented from time to time (and, in the case of a statute or
regulation, to any corresponding provisions of successor statutes or
regulations), unless the context otherwise requires.
(b) Any reference in this agreement to a "day" or number
of "days" (without the explicit qualification of "BUSINESS") is a reference to a
calendar day or number of calendar days. If any action or notice is to be taken
or given on or by a particular calendar day, and the calendar day is not a
Business Day, then the action or notice may be taken or given on the next
Business Day.
9.19 CONFLICTS WITH MANAGEMENT AGREEMENT. The provisions of the
Management Agreement govern over those of this Services Agreement if the
provisions contained in this agreement conflict with analogous provisions in the
Management Agreement.
9.20 MASTER SIGNATURE PAGE. Each party agrees that it will execute
the Master Signature Page that evidences such party's agreement to execute,
become a party to and be bound by this agreement, which document is incorporated
herein by this reference.
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