Exhibit 10.31
EXECUTION COPY
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (this "AGREEMENT") is executed as of this
22nd day of February, 2001 by and between UBIQUITEL OPERATING COMPANY, a
Delaware corporation ("UBIQUITEL"), and VIA WIRELESS, LLC (f/k/a/ Central
Wireless Partnership), a California limited liability company having its
principal offices at 0000 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000 ("LLC").
RECITALS
A. LLC holds licenses ("LICENSES") issued by the Federal
Communications Commission ("FCC") authorizing it to construct and operate
personal communications service ("PCS") systems to serve one or more Basic
Trading Areas ("BTA(S)") (individually and collectively the "PCS SYSTEM").
B. LLC and Sprint Spectrum L.P. ("SPRINT") entered into a Sprint PCS
Affiliation Agreement on January 29, 1999 ("AFFILIATION AGREEMENT"), pursuant to
which the PCS System will be constructed, operated, managed and maintained in
the BTAs as a portion of the Sprint PCS Network.
C. LLC is managed by a Members Committee (the "MEMBERS COMMITTEE")
and its designated officers ("LLC OFFICERS").
D. UbiquiTel Inc., a Delaware corporation and the parent company of
UbiquiTel ("UBIQUITEL PARENT"), and/or UbiquiTel, on the one hand, and LLC
and/or the members of LLC (the "MEMBERS"), on the other hand, have entered into:
(i) a Merger Agreement of even date herewith pursuant to which
UbiquiTel Parent will acquire all of the outstanding membership interests of LLC
(the "MERGER AGREEMENT") (capitalized terms used herein and not otherwise
defined shall have the meaning attributed to them in the Merger Agreement);
(ii) a Revolving Credit and Term Loan Agreement of even date
herewith ("LOAN AGREEMENT") pursuant to which UbiquiTel has agreed to make
available to LLC a revolving credit facility in the amount of $25,000,000 to
finance the operations of LLC pending the Closing under the Merger Agreement;
and
(iii) this Agreement, to enable LLC and UbiquiTel to work
together pending the Pre-Closing, to facilitate the transition and minimize any
disruption to LLC's customers, and to assist LLC in the management of its
business and the conversion of its Sprint Affiliate relationship from a Type III
Sprint Affiliate to a Type II Sprint Affiliate.
NOW, THEREFORE, the parties agree as follows:
I. MANAGEMENT COMMITTEE.
1.1 CREATION.
The parties hereby create a Management Committee comprised of three
representatives, one designated by UbiquiTel (the "UBIQUITEL REPRESENTATIVE")
and two designated by the Members Committee (the "LLC REPRESENTATIVES") (the
UbiquiTel Representative and the LLC Representatives hereinafter are referred to
collectively as the "REPRESENTATIVES"). UbiquiTel hereby designates as its
initial UbiquiTel Representative Xxxx Xxxxxxx. LLC hereby designates as its
initial LLC Representatives Xxxxx Xxxxxx and Xxxxxxx Xxxx. LLC shall designate a
replacement for either of the initial LLC Representatives if they become unable
to serve, and UbiquiTel shall designate a replacement for its initial UbiquiTel
Representative if he becomes unable to serve. The Members Committee shall
designate a principal LLC Officer (the "PRINCIPAL LLC OFFICER") who shall
perform the tasks designated for such individual in this Agreement. The initial
Principal LLC Officer shall be Xxxxx Xxxxxx. If Xxxxx Xxxxxx is unable to serve
as Principal LLC Officer during the term of this Agreement because of his
voluntary resignation, death or disability, the Members Committee shall
designate a replacement Principal LLC Officer from the list of individuals and
in the order set forth in EXHIBIT A attached hereto. If the Members Committee
shall not have designated a replacement, Xxxxxxx Xxxx shall be deemed to be the
Principal LLC Officer for all purposes under this Agreement until such
replacement is appointed in accordance with this Section 1.1. LLC agrees that
the Principal LLC Officer will cooperate with, and not take any actions to
interfere with the functions of, the Operating Manager (as defined below)
hereunder.
1.2 AUTHORITY OF MANAGEMENT COMMITTEE.
Pursuant to the provisions of this Agreement, and the Operating
Agreement of LLC, as originally executed and as amended from time to time
("OPERATING AGREEMENT"), the Management Committee is granted the authority to
establish business plans, policies, budgets and direction for LLC. As part of
and further to this grant of authority, the Management Committee hereby takes
the following actions and adopts the following provisions:
(a) The Management Committee hereby appoints UbiquiTel as the
operating manager (the "OPERATING MANAGER") to manage and operate the wireless
network and operations of LLC (the "WIRELESS NETWORK") in the central valley of
California with the authority and subject to the limitations, provided for in
this Agreement;
(b) The Management Committee hereby adopts the Operations
Transition Plan-Key Milestones and Timeline (the "TRANSITION PLAN") set forth as
EXHIBIT B and hereby directs the Operating Manager to implement the Transition
Plan as part of its operations; and
(c ) The Management Committee hereby adopts the budget (the
"BUDGET") set forth as EXHIBIT C and instructs the Operating Manager to manage
the operations and implement the Transition Plan according to and subject to the
limitations of the Budget.
1.3 DUTIES OF OPERATING MANAGER.
The Operating Manager, consulting with the Principal LLC Officer as
more specifically set forth in this Section 1.3, shall supervise and direct the
day-to-day management and operations of the Wireless Network and will act at all
times in a manner consistent with this Agreement. The day-to-day business and
affairs of LLC will be conducted by the Operating Manager in accordance with the
policies and direction established by the Management Committee under and
pursuant to the terms of this Agreement, the Transition Plan and the Budget. The
Operating Manager shall direct appropriate persons to perform such tasks as
shall be necessary and appropriate to implement the direction and policies
established by the Management Committee. To the extent that the Management
Committee refrains from exercising any of the authority given to it under this
Agreement, the Operating Manager shall conduct the day-to-day business and
affairs of LLC under the authority of the Members Committee. Without limiting
the foregoing, except as set forth in Section 1.4 below, the Management
Committee hereby authorizes and directs the Operating Manager and the Operating
Manager agrees to:
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(a) assume and be responsible for the day-to-day business
operations of the Wireless Network, utilizing LLC Officers and employees and
other persons designated by the Operating Manager and necessary to conduct such
operations pursuant to the terms of this Agreement;
(b) provide Xxxxx Xxxxxx (and the Principal LLC Officer if not
Xxxxx Xxxxxx or a present employee of LLC) with an office and administrative
support at the offices of LLC throughout the term of this Agreement and promptly
inform the Principal LLC Officer of any significant actions and decisions
proposed by the Operating Manager; and the Operating Manager agrees to cooperate
with, and not take any actions to interfere with the functions of, the Principal
LLC Officer hereunder;
(c) (i) subject to the prior approval of the Principal LLC
Officer, establish and terminate bank accounts in connection with the day-to-day
operations of the Wireless Network, establish signatories for bank accounts
(which may include and require the signature of one or more Representatives of
the Management Committee with respect to checks and obligations which must be
paid on LLC's behalf and existing on the Effective Date (as defined in Section
6.1 hereof) of this Agreement), (ii) incur obligations on behalf of LLC in
connection with the day-to-day business operations of the Wireless Network in
accordance with the Budget, and (iii) pay or cause to be paid all bills arising
in connection with the day-to-day business activities of the Wireless Network,
both to trade creditors and for capital expenditures, in accordance with the
Budget;
(d) hire and discharge staff, with the prior approval of the
Principal LLC Officer to the extent such actions, taken as a whole, are subject
to the limitations of Section 1.4 below;
(e) collect revenues and apply revenues to reimbursement and
payment of costs and expenses and payment of interest and principal on
outstanding loans in accordance with the Budget;
(f) maintain accounting, bookkeeping and financial services
and systems ("SYSTEMS") during the term of this Agreement sufficient to support
the Wireless Network operations to the same level as prior to the execution of
this Agreement, provided that existing Systems may be materially modified or
changed only with the prior approval of the Principal LLC Officer;
(g) enter into agreements and leases as appropriate in the
course of constructing, operating, maintaining, and servicing the PCS System;
(h) apply for and maintain all licenses, permits, franchises,
and operating rights (other than licenses, permits or authorizations issued by
the FCC) that may be necessary or appropriate for the conduct of the business of
the Wireless Network;
(i) contract, subcontract, assign or delegate to any third
party any of the activities, responsibilities, and powers set forth in this
Agreement to the extent not inconsistent with the other provisions of this
Agreement;
(j) present and report monthly to the Management Committee the
financial and operational results of LLC and the Wireless Network;
(k) take such actions as are reasonably necessary to maintain
the ability of the Wireless Network to operate as a separate and stand-alone
business operation until (a) the Closing, or (b) the termination of the Merger
Agreement pursuant to its terms; and
(l) generally, do any and all other acts or recommend the
execution of such other agreements, documents or affidavits, as may be necessary
or as the Operating Manager (with the prior
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approval of the Principal LLC Officer for those matters required herein to be
approved in advance by him) may deem appropriate to carry out this Agreement
and to promote the successful operation of the Wireless Network, whether or
not specifically enumerated herein.
1.4 LIMITATIONS ON AUTHORITY OF OPERATING MANAGER, MANAGEMENT
COMMITTEE AND LLC.
None of the Operating Manager, Management Committee or LLC shall have
the authority to do any of the following without the unanimous written consent
of all three Representatives to the Management Committee:
(a) request an Advance or Advances pursuant to the Loan
Agreement other than to fund expenditures within the limits authorized by the
Budget;
(b) borrow money on behalf of LLC, or renegotiate or modify
the terms of the existing LLC indebtedness, including without limitation, the
indebtedness to the FCC, the Rural Telephone Finance Cooperative and to the
Members;
(c) renegotiate or modify any of LLC's existing agreements
with Sprint, provided that the Operating Manager may make non-material
modifications with the prior approval of the Principal LLC Officer;
(d) execute or certify any filings to or for the FCC, except
for those required in the ordinary course of LLC's business;
(e) make any material modification or change to the Wireless
Network other than as provided for in the Transition Plan and as may be funded
within the expenditures authorized by the Budget;
(f) incur any expense or any obligation which could result in
a liability in excess of $80,000, other than an expense or obligation
contemplated by the Budget;
(g) cancel or compromise any claim or debt owed to or by LLC
or UbiquiTel in connection with the Wireless Network or services hereunder in
excess of $50,000 and not set forth in the Budget;
(h) make any material change to the business or operations of
the Wireless Network that would preclude the Wireless Network from operating as
a stand-alone business operation should this Agreement be terminated prior to
(a) the Pre-Closing, or (b) the termination of the Merger Agreement pursuant to
its terms;
(i) cause LLC to breach in any material manner any agreement
to which it is a party, including without limitation, the Sprint agreements, the
RTFC Loan Agreement or the FCC License Agreement;
(j) cause LLC to be materially in violation of any applicable
law, including without limitation, any applicable ruling, order, regulation or
statute imposed by any local, muncipal, state or federal governmental authority;
or
(k) amend or modify the Transition Plan or the Budget.
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1.5 PROCEDURE.
(a) The Management Committee shall determine in what manner
and by what procedures it shall conduct its deliberations and activities,
provided that the UbiquiTel Representative is provided with notice of and
opportunity to participate in the deliberations and decisions of the Management
Committee. The Management Committee may meet in person or by telephone. At the
request of the Management Committee, any LLC Officer shall meet with the
Management Committee to review business policy and direction. The Management
Committee shall report periodically to the Members Committee. The Management
Committee shall not cancel this Agreement nor change the terms of this Agreement
without the unanimous written consent of all the members of the Management
Committee.
(b) If the Principal LLC Officer at any time shall inform the
Operating Manager in writing that it objects to any proposed action or inaction
to be taken or directed by the Operating Manager, then the Operating Manager
shall not take such action or inaction for a period of two (2) days. Thereafter
the Operating Manager may take such action or inaction unless within such two
(2) days the Management Committee has voted, by majority vote, to preclude such
action or inaction (in which event UbiquiTel shall have the rights set forth in
Section 6.2 below).
1.6 FCC REQUIREMENTS.
Notwithstanding anything to the contrary in this Agreement, LLC and the
Members Committee shall retain ultimate control and authority over the Licenses
in accordance with the requirements of the Communications Act of 1934, as
amended, 47 U.S.C. 151 ET SEQ. (the "ACT"), and the rules and policies
promulgated thereunder by the FCC. LLC shall not be required to take, and shall
be entitled to refrain from taking, any action that would be inconsistent with
that ultimate control and authority.
1.7 EMPLOYEES OF AFFILIATES.
The Operating Manager may use employees of UbiquiTel or UbiquiTel's
Affiliates or employees of LLC or LLC's Affiliates in providing the services
hereunder. "AFFILIATE" for purposes of this Agreement shall mean any person or
entity that, directly or indirectly, alone or through one or more
intermediaries, controls, is controlled by or is under common control with such
person.
1.8 AGENCY.
The Management Committee hereby authorizes the Operating Manager to
negotiate and execute as agent for and on behalf of the Management Committee any
agreements or other documents to the extent authorized hereunder; provided such
agreements or other documents are consistent with the Transition Plan and
Budget.
1.9 EXECUTION OF DOCUMENTS.
With the prior written consent of the Management Committee, any
instrument may be executed and delivered on behalf of LLC by a Representative of
the Management Committee, and no other signature shall be required for any such
instrument to be valid, binding, and enforceable against LLC in accordance with
its terms. All persons may rely thereon if they deal with a Representative so
authorized on the basis of documents approved and executed on behalf of LLC by
such Representative.
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II. PAYMENT.
For the services provided by UbiquiTel, Affiliates of UbiquiTel or
third parties retained by UbiquiTel, LLC shall reimburse UbiquiTel and its
Affiliates, as the case may be, for all Reimbursable Costs. "REIMBURSABLE COSTS"
for purposes of this Agreement means the reasonable costs, within the category
and amount of expenditures authorized by the Budget, incurred by UbiquiTel or
its Affiliates directly attributable to the performance of such services,
including without limitation (A) all sums paid by UbiquiTel or its Affiliates to
vendors or other third parties; (B) the salaries and expenses of those personnel
of UbiquiTel or its Affiliates who are engaged in the performance of services
hereunder, to the extent of the portion of time expended by such personnel in
providing such services based on their direct compensation; (C) reasonably
allocable benefits; and (D) the fees and expenses of independent technical
consultants engaged with respect to the design, construction, management,
operation and maintenance of the Wireless Network. UbiquiTel shall as part of
its monthly report submit to the Members Committee a monthly statement showing
in reasonable detail the calculation of Reimbursable Costs, which amounts shall
be due and payable, except as expressly provided herein, within thirty (30) days
of receipt of such statement by the Management Committee.
III. LLC COVENANTS.
Because UbiquiTel anticipates committing substantial resources during
the term of this Agreement, LLC covenants and agrees that its Representatives:
(a) shall not permit any liens or encumbrances to attach to
any of the Licenses or the Wireless Network (other than Permitted Liens
disclosed in the Merger Agreement) and, if any such liens or encumbrances shall
arise, LLC shall immediately cure and remove all such liens and encumbrances;
(b) shall not take any action which would reasonably be
expected to result in the revocation, cancellation or adverse modification of
any of the Licenses, the Wireless Network as a whole or the rights of UbiquiTel
under this Agreement or any other agreement among UbiquiTel Parent, UbiquiTel
and LLC;
(c) shall immediately notify UbiquiTel of any pending or
threatened action by the FCC or any other governmental agency, court or third
party to suspend, revoke, terminate or challenge the Licenses, the Affiliation
Agreement, or to investigate the operation of the Wireless Network; and
(d) except as otherwise permitted under this Agreement, shall
not interfere in any material manner with UbiquiTel's exercise or performance of
its rights and obligations pursuant to this Agreement.
IV. PROPRIETARY INFORMATION.
Each party may from time to time be provided information that is
confidential and/or proprietary to the other party including, without
limitation, subscriber lists and other subscriber information, and financial,
technical or business information relating to one party and provided by such
party to the other and any other information, data, materials, drawings and
plans and agrees that it will not reveal such information or any of it, which is
not otherwise in the public domain, to a third party without the consent of the
other party except as required by law or as necessary to perform obligations or
enforce rights hereunder, that such information will be distributed only to
those of its own employees and officers, agents, general partners, shareholders
and Affiliates who have a reasonable need for it in order to carry out the
purposes of this Agreement and who are bound by obligations of confidentiality
substantially similar to those hereunder, that such information will not be used
in any manner except for the purpose
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for which provided, and that upon termination of this Agreement, all
documents containing such confidential and proprietary information upon
request will be returned promptly to the party to which such information
belongs or its destination certified.
V. EXCULPATION AND INDEMNIFICATION.
5.1 EXCULPATION.
None of UbiquiTel Parent, UbiquiTel nor any Affiliate of either of them
shall be liable, responsible, or accountable in damages or otherwise to LLC or
to any Member of LLC, or to any successor, assignee, or transferee of LLC or of
any Member, for any losses, claims, damages, or liabilities arising from (i) any
act performed, or the omission to perform any act, within the scope of the
authority conferred on the Management Committee or UbiquiTel by this Agreement,
except by reason of acts or omissions of the Management Committee or UbiquiTel
found by a court of competent jurisdiction upon entry of final judgment to be
due to fraud, willful misconduct, gross negligence, or a knowing violation of
the criminal law; (ii) the performance of, or the omission to perform, any acts
on advice of legal counsel, accountants, or other professional consultants to
LLC; or (iii) the negligence, dishonesty, or bad faith of any consultant,
employee or agent of LLC selected or engaged by the Management Committee or
UbiquiTel in good faith. The foregoing limitations shall not apply to any action
or omission that results in a breach of the express terms of the Agreement by
UbiquiTel, UbiquiTel Parent or any Affiliate of either of them.
5.2 LIMITATION OF LIABILITY.
IN NO EVENT WILL A PARTY OR ITS AFFILIATES BE LIABLE 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 ARE CLAIMED BY OR
AWARDED TO A THIRD PARTY IN A CLAIM OR ACTION AGAINST WHICH A PARTY HAS AN
OBLIGATION OF INDEMNIFICATION PURSUANT TO SECTION 5.3.
5.3 INDEMNIFICATION.
(a) LLC shall indemnify, defend, and hold UbiquiTel Parent,
UbiquiTel, any Affiliate of either of them and their respective officers,
directors, employees, and agents (collectively, the "UBIQUITEL INDEMNITEES"),
harmless from and against any loss, liability, damage, fine, judgment, penalty,
attachment, cost or expense, including reasonable attorneys' fees, arising from
any demands, claims, or lawsuits against any UbiquiTel Indemnitee, arising from
or relating to the business or activities undertaken on behalf of LLC, provided
that the acts or omissions are not found by a court of competent jurisdiction
upon entry of a final judgment to be the result of fraud, willful misconduct,
gross negligence, or a knowing violation of the criminal law of the person or
entity seeking indemnification. The termination of any action, suit or
proceeding by judgment, order, settlement, plea of NOLO CONTENDERE or its
equivalent, or conviction shall not, of itself, create a presumption that any
UbiquiTel Indemnitee shall not be entitled to indemnification hereunder or that
any UbiquiTel Indemnitee did not act in good faith and in a manner which it or
they reasonably believed to be in or not opposed to the bests interests of LLC.
(b) UbiquiTel shall indemnify, defend, and hold LLC, its
Affiliates and their respective officers, directors, employees, and agents
(collectively, the "LLC INDEMNITEES"), harmless from and against any loss,
liability, damage, fine, judgment, penalty, attachment, cost or expense,
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including reasonable attorneys' fees, arising from any demands, claims, or
lawsuits against any LLC Indemnitee, arising from or relating to any material
breach of this Agreement by UbiquiTel (a "UBIQUITEL BREACH"), provided that the
acts or omissions of UbiquiTel giving rise to such UbiquiTel Breach are not
found by a court of competent jurisdiction upon entry of a final judgment to be
the result of fraud, willful misconduct, gross negligence, or a knowing
violation of the criminal law of any LLC Indemnitee. The termination of any
action, suit or proceeding by judgment, order, settlement, plea of NOLO
CONTENDERE or its equivalent, or conviction shall not, of itself, create a
presumption that any LLC Indemnitee shall not be entitled to indemnification
hereunder.
VI. TERM AND TERMINATION.
6.1 TERM.
This Agreement shall commence as of the date upon which UbiquiTel first
makes an Advance to LCC pursuant to the Loan Agreement (the "Effective Date")
and unless earlier terminated as provided herein, shall terminate immediately on
the earlier of (a) the Pre-Closing, or (b) the termination of the Merger
Agreement or the Loan Agreement for any reason pursuant to the respective terms
thereof.
6.2 EARLY TERMINATION BY UBIQUITEL.
UbiquiTel may terminate this Agreement only as follows:
(a) Subject to subparagraph (b) below, UbiquiTel shall have the
right to terminate this Agreement only if:
(1) LLC is in material breach of a material term of this
Agreement; provided, however, that LLC shall be deemed to be in breach
hereunder only if the UbiquiTel Representative has given LLC written notice
setting forth with reasonable specificity the details of the alleged material
breach and LLC fails to cure such breach within twenty (20) days following
the receipt of such notice; or
(2) The LLC Representatives take any action, by either
voting for or against any particular action or proposal of the Operating
Manager, as the case may be, and the UbiquiTel Representative objects to such
action within five (5) business days by delivering written notice of its
objection to the LLC Representatives by personal delivery, fascimile (with
verification of receipt) or overnight courier service (with tracking of
receipt); provided that the UbiquiTel Representative may not object to the
taking of any action that is required by this Agreement or any failure to
take action that is prohibited by this Agreement. The UbiquiTel
Representative's written notice of objection shall state with reasonable
specificity what action taken by the LLC Representatives is objected to and
what action the UbiquiTel Representative desires the LLC Representatives to
take in order to cure such objection. After receipt of the UbiquiTel
Representative's written notice, the LLC Representatives shall have five (5)
business days to rescind their action and cure the UbiquiTel Representative's
objection as specified in its written notice. If they fail to cure, then
UbiquiTel may terminate this Agreement.
(b) Notwithstanding anything to the contrary in subparagraph
(a) above, UbiquiTel shall not have the right to terminate this Agreement:
(1) With respect to an event of termination under
subparagraph (a)(1) above, if LLC has cured the breach as provided for above; or
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(2) With respect to an event of termination
under subparagraph (a)(2) above, if the LLC Representatives have cured the
UbiquiTel Representative's objection as provided for above.
(c) If UbiquiTel terminates this Agreement as provided
for above, the Merger Agreement shall also terminate as of the same date and
all indebtedness outstanding under the Loan Agreement and Revolving Credit
Note shall automatically be accelerated and shall become immediately due and
payable.
6.3 TERMINATION BY LLC.
LLC may terminate this Agreement only if UbiquiTel or any of its
Affiliates ("UBIQUITEL PARTIES") is in material breach of a material term of
this Agreement; provided, however, that the UbiquiTel Parties shall be deemed to
be in breach only if LLC has given UbiquiTel written notice setting forth with
reasonable specificity the details of the alleged material breach and the
UbiquiTel Parties fail to cure such breach within twenty (20) days following the
receipt of such notice.
6.4 EFFECT OF TERMINATION.
Upon any termination or expiration of this Agreement, LLC shall
continue to be liable to UbiquiTel for Reimbursable Costs properly incurred,
itemized and submitted to LLC within thirty (30) days following termination or
expiration.
6.5 SURVIVAL UPON TERMINATION.
Article IV, Article V, this Article VI and Article VII and Sections
8.2, 8.3, 8.4, 8.6, 8.8, 8.9 and 8.10 shall survive the termination of this
Agreement.
VII. TAXES.
Each party shall retain full responsibility for all excise taxes, sales
taxes, regulatory surcharges, emergency telephone service surcharges, and
similar governmental levies relating to its facilities, operations and equipment
of each respective party. To the extent that UbiquiTel is billed by any
governmental agency or third party for taxes and surcharges relating to the LLC
facilities, operations or equipment, it shall promptly notify LLC who shall
promptly pay the tax or surcharge billed to UbiquiTel unless being contested by
LLC in good faith; provided, however, that if UbiquiTel reasonably concludes
that it must pay any such tax or surcharge relating to the LLC facilities,
operations or equipment billed to it to protect any aspect of UbiquiTel's
material operations, including its credit rating, it may pay the same, and shall
be reimbursed by LLC therefor within thirty (30) days of receipt by LLC of an
invoice therefor from UbiquiTel, regardless of whether or not LLC determines to
attempt to recover such taxes and surcharges.
VIII. MISCELLANEOUS.
8.1 RELATIONSHIP; SELF-DEALING.
UbiquiTel and its Affiliates may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, whether currently existing or hereafter created, including the
acquisition, construction, management, operation and sale of wireless systems
and services, and LLC shall not have any rights in or to such independent
ventures or the income or profits derived therefrom. Nothing in this Agreement
shall preclude transactions between UbiquiTel, or any Affiliate of UbiquiTel
acting in and for its own account, and LLC, provided that the terms of any such
transaction are
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on terms no less favorable to LLC than could be obtained from an unrelated
third party on an arm's length basis.
8.2 MODIFICATION, WAIVER.
This Agreement shall not be modified, waived, released or discharged
except by a writing signed by an officer or authorized representative of each of
the parties.
8.3 SUCCESSORS AND ASSIGNS.
No party may assign its rights and or obligations under this Agreement
to any third party.
8.4 BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and shall
be binding upon any purchaser of the PCS System, which shall be required to
assume all of LLC's obligations hereunder. Nothing in this Agreement, expressed
or implied, is intended or shall be construed to confer upon any person not a
party hereto any right, remedy or claim under or by reason of this Agreement.
8.5 FURTHER ASSURANCES.
The parties shall execute and deliver such further instruments and
perform such further acts as may reasonably be required to carry out the intent
and purposes of this Agreement.
8.6 HEADINGS.
All article, section and paragraph titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the text of
the Agreement.
8.7 COUNTERPARTS.
This Agreement may be signed in any number of counterparts, each of
which shall be an original for all purposes, but all of which taken together
shall constitute only one agreement.
8.8 NOTICES.
Any notice, request, demand, report, consent offer or other document or
instrument which may be required or permitted to be furnished to or served upon
a party hereunder shall be in writing which shall be personally delivered or
sent by facsimile, electronic mail, telegram, cable or telex or deposited in the
United States mail, registered or certified mail, return receipt requested,
postage prepaid, addressed to the party entitled to receive the same at its
address set forth below (or such other address as such party shall designate by
notice to the other party given in the manner set forth herein):
To UbiquiTel:
UbiquiTel Operating Company
Xxx Xxxx Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President and CEO
Xxxxxxxx X. Xxxxx, Esq.
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With a copy to:
Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxx, Esq.
To LLC:
VIA Wireless, LLC
0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
With copies to:
Xxxxxxx X. Xxxx
Post Xxxxxx Xxx 00
00000 Xxxx 000
X'Xxxxx, XX 00000
Xxxxxx Xxxxxxxx & Associates, L.P.
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxx X.X.
0000 Xxxxxxx Financial Center
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
Any notice given by telephone shall be confirmed promptly in writing
(which notice shall be effective only upon the effectiveness hereunder of the
delivery of such writing). Any notice given by personal delivery, by United
States mail, by facsimile or electronic mail, telegram or by cable shall be
effective on receipt and any notice given by facsimile shall be effective upon
acknowledgment or receipt of transmission by the answerback of the facsimile
machine of the receiving party.
8.9 GOVERNING LAW.
This Agreement, and all amendments hereof and waivers and consents
hereunder, shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of Delaware. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the Eastern District of California, Fresno Division and, if such court does not
have jurisdiction, of the courts of the State of California in Fresno County,
for the purposes of any action arising out of this Agreement, or the subject
matter hereof or thereof, brought by any other party. To the extent permitted by
applicable law, each party hereby waives and agrees not to assert, by way of
motion, as a defense or otherwise in any such action, any claim (i) that it is
not subject to the jurisdiction of the above-named courts, (ii) that the action
is brought in an inconvenient forum, (iii) that it is immune from any legal
process with respect to itself or its property, (iv) that the venue of the suit,
action or proceeding is improper or (v) that this Agreement, or the subject
matter hereof, may not be enforced in or by such courts. The prevailing party in
any action or proceeding relating to this Agreement shall be entitled to recover
reasonable attorneys' fees and other costs from the non-prevailing party, in
addition to any other relief to which such prevailing party may be entitled.
-11-
8.10 ENTIRE AGREEMENT; SEVERABILITY.
If any provision of this Agreement shall be held by a court of
competent jurisdiction or by the FCC to be illegal or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect and
such offending provision shall be interpreted and construed to be modified to
the extent necessary to be then enforceable. Notwithstanding anything to the
contrary in this Agreement, the parties will promptly amend this Agreement to
conform with any requests or directives from the FCC or to otherwise insure this
Agreement's compliance with the Act and the rules and policies promulgated by
the FCC under the Act subsequent to the execution of this Agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this MANAGEMENT
AGREEMENT as of the date first set forth above.
UBIQUITEL OPERATING COMPANY
By:
------------------------------------
Name:
Title:
VIA WIRELESS, LLC
By:
------------------------------------
Name:
Title:
-13-
EXHIBIT A
TO
MANAGEMENT AGREEMENT
REPLACEMENT PRINCIPAL LLC OFFICERS
The following individuals are listed in order of their appointment as
the replacement Principal LLC Officer if Xxxxx Xxxxxx is unable to serve in such
capacity:
First Replacement: Xxxxx Xxxxx
Second Replacement: Xxxxxxxx Xxxxxxxx
Third Replacement: Xxxxxxx Xxxx
-14-
EXHIBIT B
TO
MANAGEMENT AGREEMENT
OPERATIONS TRANSITION PLAN - KEY MILESTONES AND TIMELINE
------------------------------------------------------------------------------------------------------------
KEY MILESTONES DATE
------------------------------------------------------------------------------------------------------------
Execute Agreement-Freeze Hiring Merger Signing Date
------------------------------------------------------------------------------------------------------------
Ubiquitel Management Team Meeting with Via staff Between 7 and 10 days following
Merger Signing Date
------------------------------------------------------------------------------------------------------------
Active Ubiquitel participation in Sprint PCS network and market Merger Signing Date plus 7 days
transition mtgs. (Type 3 to Type 2)
------------------------------------------------------------------------------------------------------------
Marketing plan adopted for conversion to exclusive marketing of Sprint Merger Signing Date plus 17 days
PCS rate plans in Via Wireless markets
------------------------------------------------------------------------------------------------------------
Via Wireless converted to exclusive marketing of Sprint Merger Signing Date plus 52 days
PCS rate plans in Via Wireless markets
------------------------------------------------------------------------------------------------------------
Implementation of possible incentive plans for transition of existing 4/20/01
unlimited plan subscribers to Sprint PCS plans
------------------------------------------------------------------------------------------------------------
Commencement of Planning for transition from F Band to A Band 5/1/01
------------------------------------------------------------------------------------------------------------
Target Pre-Closing Date for UbiquiTel/Via transaction 7/9/01
------------------------------------------------------------------------------------------------------------
Former Via Wireless Service Area transition to Sprint PCS Billing and 7/9/01
Customer Care Platforms
------------------------------------------------------------------------------------------------------------
Execution of Closing Condition of transition from F Band to A Band Pre-Closing Date to Closing Date
(target of 10 days or less)
------------------------------------------------------------------------------------------------------------
Completion of all closing requirements including spectrum transition Closing Date
------------------------------------------------------------------------------------------------------------
Sale of F Band Spectrum (and Bakersfield BTA A Band) Tenth Day after Closing
------------------------------------------------------------------------------------------------------------
-15-
