Exhibit 10.90
CONSTRUCTION MANAGEMENT AGREEMENT
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THIS CONSTRUCTION MANAGEMENT AGREEMENT ("Agreement") is made as of June
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2, 2000 by and between TeleCorp Communications, Inc., a Delaware corporation
("Manager"), and Airadigm Communications, Inc., a Wisconsin corporation (the
"Company") (Manager and the Company are collectively referred to as the
"Parties").
RECITALS
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WHEREAS, the Company has been granted the personal communications services
licenses described on Exhibit A (the "Licenses"), which, the Parties
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acknowledge, the FCC has taken the position have automatically cancelled;
WHEREAS, RW Acquisitions, L.L.C. (an affiliate of Manager)("RWA") has
agreed to purchase from the Company, and the Company has agreed to sell to RWA,
substantially all of the Company's assets under the terms of either: (i) that
certain Asset Purchase Agreement dated as of June 2, 2000 (the "Purchase
Agreement"); or alternatively, (ii) that certain Contingent Supplement to Asset
Purchase Agreement dated June 2, 2000 (the "Contingent Purchase Agreement");
WHEREAS, RWA has agreed to provide the Company with a working capital loan
upon the terms and conditions set forth in that certain Letter of Intent
executed by RWA and the Company, dated June 2, 2000 (the "Working Capital
Loan"); and
WHEREAS, the Parties desire to enter into this Agreement in order for
Manager to effect the implementation and management of the conversion of the
Company's personal communications services network (both before and after
Conversion, the "PCS System") from a GSM technology-based system to a TDMA
technology-based system (the "Conversion"), with the express understanding that,
during the Conversion, the Company's operations shall remain under the ultimate
supervision, authority and control of the Company and that the Conversion shall
be effected in a manner reasonably calculated to provide seamless service to the
Company's customers and to maintain continuity of service.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, it is hereby agreed between the Parties as follows:
1. Recitations True. The Parties agree that the aforesaid recitations
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accurately reflect the context in which this Agreement is made and entered into.
2. Definitions. The definitions set forth in the Purchase Agreement are
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hereby incorporated by reference and shall apply to this Agreement.
3. Term. This Agreement shall become effective as of the date hereof.
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Unless otherwise terminated pursuant to Section 8(b), this Agreement shall
terminate upon the earliest of:
(a) the closing of the transactions contemplated by the Purchase
Agreement or the Contingent Purchase Agreement, as the same may be amended from
time to time;
(b) immediately upon the termination of both the Purchase Agreement
and the Contingent Purchase Agreement;
(c) thirty (30) days following written notice by one Party to the
other; and
(d) immediately upon notice from Manager upon the occurrence of an
"Event of Default" by the Company, where an Event of Default shall be deemed to
have occurred if
(i) the Company does not reasonably accept Manager's
recommendations under Section 4(b) or (c) below, or
(ii) the Company fails to comply with its obligations under
Section 5(b) or (c) below
and in either event such failure has not been cured by the Company within three
business days of receipt of notice of such failure from Manager
4. Obligations of Manager. Manager shall have the right to take any and
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all actions on behalf of the Company in order to effect the Conversion,
including providing management and oversight of the Company's and Manager's
personnel and procedures necessary and sufficient to accomplish the Conversion,
as appropriate in Manager's reasonable discretion. Manager's actions shall be in
compliance with all applicable federal, state and local laws, rules and
regulations, including FCC rules and regulations regarding construction,
maintenance and operation of the PCS System. Manager will implement the
Conversion in a fashion designed to be as seamless as possible to Airadigm's
customers and to ensure the continuity of service to Airadigm's customers.
More specifically, in order to effect the Conversion, Manager will also
have the authority, as appropriate and necessary to implement the Conversion,
to:
(a) enter onto any real property in which the Company has an interest
as an invitee, licensee or contractor of the Company and install TDMA equipment
owned by either the Company or Manager and, where necessary in order to locate
the TDMA equipment in the first priority position, to manipulate, disassemble,
remove or relocate the Company's GSM equipment;
(b) recruit, train, supervise and direct those employees of the
Company, other than Xxxxxx Xxxxx, involved in the Conversion, and recommend to
the Company the employment and discharge by the Company of employees involved in
the Conversion; and
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(c) negotiate, compromise, terminate, revise, restate, or otherwise
address any contracts, agreements or obligations of the Company or Manager in
order to effect the Conversion, and recommend to the Company such contracts,
agreements or obligations for execution or termination.
Manager shall own or lease all equipment and other tangible assets used in
connection with the Conversion other than assets owned or leased directly by the
Company (the "Tangible Assets"). Upon termination of this Agreement, Manager
shall have the right to enter the Company's premises to remove the Tangible
Assets and the Company shall not have or assert any contractual or other rights
to own or use the Tangible Assets. Manager shall fund all other costs and
expenses directly related to the Conversion and approved by Manager through
causing RWA to increase the amount of the Working Capital Loan (in addition to
the $600,000 monthly advances made thereunder).
Notwithstanding the foregoing, Manager will not be required to build any
redundant facilities within the Company's PCS System to accomplish the
Conversion.
5. Obligations of the Company.
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(a) During the term of this Agreement, the Company shall remain
solely responsible for the timely payment of all operating expenses necessary
for the continued operation of the PCS System in the ordinary course of
business. Such operating expenses shall include, but not be limited to, all
obligations with respect to (i) any claims, third-party liabilities, taxes,
governmental charges, or penalties imposed upon the Company in connection with
the operation of the PCS System; (ii) all salaries, commissions, benefits and
other related costs for all personnel involved in the operation of the PCS
System, with the exception of any employees of Manager; (iii) all lease payments
in connection with real property and equipment leased by the Company; (iv)
maintenance and repair expenses of the PCS System; (v) liability and property
insurance; and (vi) software maintenance agreements.
(b) The Company shall submit to Manager all information reasonably
necessary for Manager to provide the services required under the terms of this
Agreement, including without limitation providing Manager access to the
Company's records and customer list.
(c) The Company shall cooperate with and assist the Manager in its
performance of the Conversion, including, without limitation: (i) making
available first priority tower and equipment space at each of the Company's PCS
Sites to accommodate the TDMA antennas and equipment to be installed; and (ii)
assisting Manager in the distribution of handsets to the Company's existing
customers that are compatible with the interim system available during
implementation of the Conversion, commencing no earlier than four months after
the date of execution of the Purchase Agreement. The Company will execute such
contracts or modifications thereof, negotiated by Manager pursuant to Section
4(c) above, as are reasonably acceptable to the Company.
6. Retention of Control. Notwithstanding any other provision of this
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Agreement, the Company shall retain control over the PCS System and shall carry
out all policy decisions with
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respect thereto. Such control shall include, but not be limited to (i) the
unfettered right to the use of the Company's facilities and equipment; (ii)
control over the day-to-day operations of the PCS System; (iii) control over
policy decisions relating to the operation of the PCS System; (iv) ultimate
responsibility for employment and personnel decisions associated with the
operation of the PCS System; (v) control over financial obligations relating to
the facilities; and (vi) actual receipt of the monies and profits accruing from
the operation of the PCS System.
7. Compensation. In consideration for the services to be performed under
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this Agreement, and if, and only if, this Agreement is terminated by the Company
pursuant to Section 3(c), the Company agrees to pay a fee equal to 10% of the
value of the Tangible Assets provided by Manager through the date of
termination. All fees payable pursuant to this Agreement shall be paid within
ten (10) days following termination of this Agreement.
8. Public Regulation.
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(a) This Agreement is subject to all of the terms and conditions of
all of the Company's Licenses as well as all other outstanding licenses,
applications and authorizations from the FCC and other federal, state and local
government agencies with respect to the PCS System. Nothing in this Agreement
shall be construed so as to impair or diminish the Company's control of the PCS
System or the Licenses.
(b) In the event that a federal, state or local government authority
(including, without limitation, the FCC) orders, takes, threatens, or announces
other action which could require the modification or termination of this
Agreement or the relationship between the Parties hereto (i) the Parties may
seek administrative or judicial relief from such order(s) (in which event the
Parties shall cooperate with each other); or (ii) the Parties may consult with
the FCC and its staff, or such other government agency, concerning such matters
and negotiate in good faith a modification to this Agreement which would obviate
any such questions while preserving, to the maximum extent possible, the intent
of the Parties and the economic and other benefits of this Agreement and the
portion hereof whose validity is called into question.
9. Relationship of Parties. Neither Party shall hold Manager out as the
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holder of the Licenses or owner of the PCS System.
10. Notices. All notices to be given by the Parties under this Agreement
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shall given be in accordance with the terms of the Purchase Agreement, except
that all such notices shall be sent to Manager at the following
address/facsimile number:
TeleCorp Communications, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Fax: 000-000-0000
11. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the Parties, their permitted successors and assigns.
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12. Representations And Warranties. Each Party represents that it is
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legally qualified, empowered and able to enter into this Agreement and that the
execution, delivery and performance hereof shall not constitute a breach or
violation of any agreement, contract or other undertaking to which such Party is
subject or by which it is bound, other than approval of the Bankruptcy Court.
Each Party hereto represents and warrants that it has taken all necessary
corporate and other necessary action to make this Agreement legally binding on
such Party (other than Bankruptcy Court approval, which the Parties agree to
seek in timely fashion) and that the individual signing this Agreement on behalf
of such Party has been fully authorized and empowered to execute this Agreement
on behalf of such Party.
13. Entire Agreement. This Agreement, the Purchase Agreement and the
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Contingent Purchase Agreement constitute the entire agreement between the
Parties with respect to the management of the Conversion, and supersede any
prior agreements between the Parties with respect to the matters provided for
herein.
14. Construction. This Agreement shall be construed in accordance with the
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laws of the state of New York except for the choice of law rules utilized in
that state, and the obligations of the Parties hereto are subject to all
federal, state and local laws and regulations now or hereafter in force and the
rules, regulations and policies of the FCC and all other government entities or
authorities presently or hereafter to be constituted. In the event of any
conflict between the terms of this Agreement and the Purchase Agreement, the
terms of the Purchase Agreement shall prevail.
15. Counterparts. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, each party, intending hereby to be bound, has caused
this Construction Management Agreement to be executed:
"Manager" TELECORP COMMUNICATIONS, INC.
By:___________________________
Its:__________________________
"The Company" AIRADIGM, INC.
By:___________________________
Its:__________________________
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