PAGES WHERE CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE STAMPED "CONFIDENTIAL
TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE
COMMISSION." THE APPROPRIATE SECTION HAS BEEN MARKED AT THE APPROPRIATE PLACE.
NEXTWAVE RESALE AGREEMENT
WITH
PERSONAL COMMUNICATIONS NETWORK, INC.
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE COMMISSION.
NEXTWAVE RESALE AGREEMENT
This PCS ("Personal Communications Services") Resale Agreement
("Agreement") is entered into and is in effect as of October 29, 1996, by and
between NEXTWAVE WIRELESS INC. and its Affiliates, a Delaware corporation, with
principal offices located at 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000 ("NextWave") and Personal Communications Network, Inc and its Affiliates,
a Delaware corporation, with principal offices located at 00 Xxxx Xxxx,
Xxxxxxxxx, XX 00000 ("COMPANY") and the terms of which are contained herein.
A. NextWave Personal Communications Inc. ("NextWave PCI") is a wholly
owned subsidiary of NextWave Telecom Inc. a Delaware corporation. NextWave PCI
was formed to participate in the Federal Communications Commission's ("FCC's")
PCS auctions;
B. NextWave is a wholly owned subsidiary of NextWave Telecom Inc.
organized to construct facilities, deploy PCS network equipment, and provide PCS
in the licensed markets.
C. NextWave PCI has successfully bid for 63 licenses covering
approximately 110 million POPs (based on current census data) in various markets
across the United States (see Attachment B).
D. NextWave intends to construct facilities, deploy PCS network equipment
and provide PCS in those licensed markets.
E. Subject to the terms and conditions set forth herein, in the PCS
markets awarded to NextWave in the C-block auction and any other PCS markets
NextWave is awarded in the FCC's D, E, and F-block auctions, COMPANY desires to
purchase PCS minutes of use ("MOUs") on a resale basis from NextWave pursuant to
a ten (10) year commitment by COMPANY to purchase digital wireless voice
services from NextWave in all markets where COMPANY desires to resell digital
wireless voice services where NextWave provides service. NextWave desires to
sell PCS minutes of use to COMPANY for resale in those markets under a
[REDACTED] based upon COMPANY's advance commitment to purchase minutes of use.
COMPANY will be responsible to provide customer acquisition (i.e., sales,
marketing, advertising and customer activation), billing, collections, customer
service/care, customer retention, handset fulfillment and any other services
required to acquire and retain retail customers.
THEREFORE, in consideration of the foregoing, and of the mutual covenants
and agreements hereinafter set forth, NextWave and COMPANY agree as follows:
1. DEFINITIONS.
(a) Affiliate means, with respect to any party, any person, corporation or
other legal entity that, directly or indirectly, controls, is controlled by or
is under common control with such party. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), means the possession, directly
NextWave Confidential and Proprietary 1
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION
or indirectly, of the power (i) to vote securities having ordinary voting power
sufficient to elect a majority of the directors of such party or (ii) to direct
or cause the direction of the management and policies (including investment
policies) of that party, whether by contract or otherwise.
Presently, NextWave's Affiliates consist of: NextWave Telecom Inc., NextWave
PCI, NextWave Partners, Next Wave Power Partners, and TELE*code.
Presently, COMPANY's Affiliates consist of: Electronics Communications Corp.,
Electrocomm Wireless, Inc., Threshold Communications, Inc., and General Towers
of America, Inc.
(b) Full Mobility Service means the provision of digital wireless voice
airtime with mobile inter-cell (base station) hand-off capability.
(c) Licenses means PCS licenses held by NextWave.
(d) PCS Auctions means the auction conducted by the FCC to assign licenses
to the successful bidders for 120 MHz of spectrum as broadband PCS licenses in
the 1850-1990 MHz band. The PCS band has been sub-divided into three 30 MHz
blocks (blocks A, B, and C) and three 00 XXx xxxxxx (xxxxxx X, X and F). The FCC
has allocated a portion of the broadband PCS spectrum (blocks C and F) to
certain entities called "Entrepreneurs". The FCC completed the C-block auction
in July, 1996. Together these two blocks make up the "Entrepreneurs' Band".
(e) Minute of Use ("MOU") means the particular use interval provided by
NextWave for digital mobile voice service for resale to end-users and is
measured from time of seizure of a control channel to the time of release of the
channel on NextWave's network.
(f) Base MOU Price means NextWave's MOU price prior to any discounts.
Usage is billed in [REDACTED]
(g) BTA (Basic Trading Area) means a particular market boundary as defined
by Rand XxXxxxx & Company and the FCC.
(h) Roaming Agreements means any agreement whereby NextWave or its
Affiliates has the ability to purchase airtime from, interconnect with and/or
use the wireless network facilities of another operator of a wireless network.
(i) Term has the meaning set forth in Article 9.
(j) Transfer of Control and Ownership shall mean the completion of any
transaction where upon the holder of COMPANY's outstanding voting securities
immediately prior to the transaction either (i) own less than fifty (50) percent
of COMPANY's outstanding voting securities immediately after the completion of
the transaction, or (ii) transfer a number of the outstanding voting securities
of the COMPANY sufficient to permit the acquiring party to elect a majority of
the board of directors of the COMPANY.
NextWave Confidential and Proprietary 2
2. PROVISION OF AIRTIME.
2.1 Provision of Services. NextWave shall sell Full Mobility Services to
COMPANY in each BTA for which NextWave or any of its Affiliates is awarded or
otherwise obtains a License, or enters into a Roaming Agreement.
2.2 Services Description. Full Mobility Services shall involve the
establishment and maintenance of wireless circuits for the continuous
transmission of digital voice signals.
2.3 COMPANY Forecast. Ninety (90) days prior to the offering of commercial
Full Mobility Service in any BTA, as communicated to COMPANY by NextWave at
least One Hundred and Twenty-Days (120) prior to the offering of such commercial
Service, COMPANY will provide NextWave with a forecast of anticipated Full
Mobility Service requirements for that BTA for the remainder of the calendar
year. COMPANY will provide NextWave with quarterly updates to its initial and
annual forecasts.
2.4 Network Feature Functionality. As practicable, NextWave is committed
to maintain its infrastructure with the most recent commercial releases of
vendor software available that implements the standards and protocols described
in the J-STD-008 air interface and associated standards as detailed in
Attachment E, and new feature functionality that operates with such standards
and protocols. For those capabilities that affect end users or subscribers,
NextWave will share with COMPANY its timeline and schedule of infrastructure
upgrades as they become available.
2.5 Roaming Arrangements. NextWave will make reasonable efforts to
negotiate favorable roaming agreements and rates with other wireless licensees
in the United States, and wireless operators in Canada, Mexico, and other
countries that may provide for roaming from PCS networks in the United States
for traffic to and from each other's wireless licensed markets. NextWave will
make available rapid roaming clearing capabilities through, at NextWave's sole
discretion, either a direct interface to other networks with which it has
roaming arrangements or via industry clearing houses.
2.6 Interconnection.
(a) LEC Interconnection. NextWave has the responsibility to negotiate
interconnect agreements with local carriers. COMPANY and NextWave agree on the
need to minimize interconnect charges for MOUs originating and terminating on
NextWave's network. NextWave will continue its efforts to influence lower
interconnect rates through the regulatory agencies and processes. MOU pricing is
exclusive of interconnection fees for both originating and terminating traffic
from and to non-NextWave networks, which shall be charged to COMPANY at the
negotiated base rate.
If COMPANY elects facilities-based resale, it will be responsible for the
fixed and recurring costs of providing, operating, and maintaining the circuits
between NextWave's and COMPANY's switches and between COMPANY's switch and the
Public Switched Telephone Network ("PSTN").
NextWave Confidential and Proprietary 3
(b) IXC Interconnection. NextWave intends to interconnect with the
major interexchange carriers (e.g., AT&T, MCI, Sprint) via trunk connections
with their points of presence at the expense of the IXC. Similarly, as COMPANY
requires, NextWave will use reasonable efforts to interconnect with other long
distance services under similar conditions. NextWave's price for MOUs includes
origination for direct interconnection with-IXCs for mobile-to-land calls to the
extent that the costs of such interconnection are borne by the IXC. If the IXC
does not bear the cost of such interconnection or if direct interconnection with
the IXC is not feasible or practicable, then any interconnection charges shall
be borne by COMPANY on a pass-through basis.
If COMPANY elects facilities-based resale, it will be responsible for the
fixed and recurring costs of providing, operating, and maintaining the circuits
between NextWave's and COMPANY's switches and between COMPANY's switch and the
PSTN.
2.7 Number Ownership.
(a) Purchase and Allocation of Numbers. COMPANY shall obtain numbers
("Numbers") from North American Numbering Plan Administration ("NANPA") for
activation by NextWave on the Network. In the event COMPANY is not authorized or
is otherwise unable to obtain Numbers, NextWave shall obtain Numbers, in entire
block increments, on a pass-through cost basis. In the event there is a shortage
of Numbers and an allocation of Number blocks is required, NextWave may
allocate Number blocks pro rata among its airtime customers based on the
relative number of subscribers.
(b) Number Transfers. COMPANY will pay a nominal fee for the engineering
and administrative charges associated with the moving of COMPANY's numbers to
another network. COMPANY will be charged a comparable rate to other carriers'
rates and industry practices, a standard rate per number and all non-recurring
charges associated with forwarding COMPANY's traffic to any number on a
non-NextWave network. In the event the governing agencies mandate number
portability, NextWave will support, in a timely manner, the guidelines specified
in the ruling.
(c) Transfer Support. NextWave will support COMPANY's move of the numbers
to the new wireless network, for a nominal charge, ensuring proper addressing
and recording for the Local Exchange Routing Guide ("LERG").
2.8 Reseller Switch Interface.
(a) Non-Facilities Based. NextWave will make available to COMPANY, at a
mutually agreed upon fee, access to customer care capabilities including, but
not limited to, home location register services (i.e., customer profile
management and customer features service management), authentication, and if
practicable, call detail recording ("CDR") access. COMPANY will be responsible
for providing personnel and all other resources required to deliver customer
care services to COMPANY's subscribers.
(b) Facilities-Based. NextWave will make available a T1/T3 interface to a
COMPANY owned and operated switch for the delivery of COMPANY's calls to and
from the PSTN. COMPANY's numbers must be activated on NextWave's switch to
NextWave to
NextWave Confidential and Proprietary 4
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION.
properly provide mobility to those customers. The demarcation point will be at
NextWave's switch and COMPANY will be responsible for the provisioning and
costs, both recurring and non-recurring, of all circuits between COMPANY's
switch and demarcation point at NextWave's switch. If COMPANY desires, NextWave
will engineer and maintain these circuits at a mutually agreed fee.
2.9 Service Activations, De-Activations and Charges.
(a) Service Activation Platform. NextWave will offer COMPANY a direct
datalink interface to NextWave's service activation platform to allow COMPANY an
automated mechanism to perform customer on-line activations, de-activations, and
service change orders. NextWave reserves the right to set the interface standard
for connections to its service activation platform. NextWave's service
activation platform will collect COMPANY service orders, format the requests,
and download them into NextWave's switches and appropriate sub-systems in as
near real time as practicable. COMPANY will be responsible for all of the costs
associated with providing and maintaining its own on-site computer terminal,
software and modem/datalink connection.
(b) Number Removal Charges. COMPANY's service activation for each customer
is free of any activation fee as long as COMPANY purchases its PCS numbers
directly from NANPA. COMPANY will be charged a [REDACTED] for those situations
when a number is removed from a NextWave switch. The fee is required to cover
administrative expenses. In the event the governing agencies mandate number
portability, NextWave will support, in a timely manner, the guidelines specified
in the ruling.
2.10 Handset Sourcing and Fulfillment.
(a) Volume Purchase Orders and Delivery. If COMPANY desires, NextWave,
through its association with specific strategic partners and suppliers, will use
reasonable efforts to allow COMPANY to participate in any NextWave volume
purchase arrangements. NextWave will make arrangements for the ordering of the
handsets and accessories and the equipment will be drop shipped by the
manufacturer to COMPANY. COMPANY and supplier will be responsible for making,
shipping, delivery and payment arrangements.
(b) Pricing and Third Party Equipment. Pricing of the services in (a)
above is not available at this time, but will be determined and shared with
COMPANY in advance of NextWave's commercial service introduction. Further,
COMPANY is free to purchase any licensed subscriber equipment directly from
equipment manufacturers as long as purchased subscriber equipment is in full
compliance with the established TIA, CTIA and NextWave's network air-interface
and performance standards.
2.11 Enhanced Services.
(a) COMPANY Provided Services. NextWave will offer COMPANY the opportunity
to provide its own enhanced services platform. If COMPANY desires to provide
additional vertical services to its customers through its own or through a
third-party's enhanced services platform and if such addition to NextWave's
network is practicable, COMPANY and NextWave will make reasonable efforts to
jointly develop and mutually agree to the technical
NextWave Confidential and Proprietary 5
procedures and lockdown requirements to properly test the service prior to its
introduction on the NextWave network. NextWave reserves its right to set its
interface standard for any connections to NextWave's switches. Engineering and
set-up fees for such service configurations will be determined on a case-by-case
basis and mutually agreed-to prior to service introduction. The interconnection
to COMPANY's enhanced services platform will be based upon NextWave's standard
interface. The demarcation point will be at NextWave's switch. COMPANY will be
responsible for all of the recurring and non-recurring interconnection costs
associated with providing and maintaining the connection to COMPANY's enhanced
services platform. Hardware, software and tangible resources (i.e., switching,
processing or storage of data) on NextWave's master switching center and network
that are required to support features and functionality provided by COMPANY's
enhanced services platform shall be made available by NextWave, to the extent
practicable, at prices based on NextWave's reasonable, direct and allocable
expenses relating to such hardware, software or tangible resources utilization.
(b) NextWave Provided Services. NextWave plans to offer a family of
enhanced services which may include voice mail, enhanced voice (with
out-dial-to-a-pager capability), short messaging, custom calling features (i.e.,
call waiting, three-way calling, call forwarding, no answer transfer, etc.),
single number service, fax store and forward, e-mail, star features and
information services. These services will be offered to COMPANY on an individual
and/or package basis on terms to be agreed upon.
(c) Enhanced Services Pricing. The parties agree that service features,
enhanced services, and their associated pricing must be competitive. Pricing for
NextWave's features and enhanced services will be competitive with prevailing
retail pricing. NextWave will price services either individually or provide bulk
pricing for global feature activation in a market. NextWave recognizes that
switch-based features and enhanced services will increasingly be packaged at
retail with airtime and become a "tablestakes" for the business. Prior to
commercial availability, the parties agree to develop a plan for enhanced
services to identify COMPANY's needs, refine NextWave implementation
approaches that might include use of COMPANY AIN platforms, and agree on
wholesale pricing for such services. For situations where COMPANY purchases
enhanced services from NextWave and subsequently migrates to another enhanced
services platform, the parties will develop a plan to minimize COMPANY's
subscriber churn and to recover NextWave's capital investment.
2.12 Network Service Training and Trouble Reporting.
(a) Scope of Services. NextWave will provide COMPANY network service
training and documentation prior to COMPANY's introduction of any NextWave
enhanced services offering in any market. Scheduling for such training will be
mutually agreed upon by both parties.
(b) Notification of Service. NextWave will promptly notify COMPANY's
customer care department or COMPANY's assigned point of contact of service
enhancements, network expansions, and major services outages. NextWave and
COMPANY will mutually agree to the notification procedures prior to NextWave's
commercial service offering. Additionally, NextWave will routinely provide
COMPANY with updated NextWave service maps as service is expanded.
NextWave Confidential and Proprietary 6
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION.
2.13 Network Access to Local Customer Care. NextWave, at no cost to
COMPANY, will provide COMPANY with one (1) customer care "star feature" (e.g.,
*CARE) that will directly connect COMPANY's customer to COMPANY's local customer
care center. COMPANY will be responsible for any network access charges related
to interconnection and transport of such calls from Next Wave's switches to
COMPANY's customer care center. For the situation where these star feature
customer service calls originate in a roaming market and are routed directly to
COMPANY's customer care center, COMPANY will be responsible for local network
interconnection and transport charges.
3. PURCHASE COMMITMENT.
3.1 Subject to the terms and conditions hereof, NextWave agrees to provide
Full Mobility Service MOUs for resale and COMPANY agrees to purchase on a
[REDACTED] basis from NextWave a minimum of [REDACTED] ([REDACTED]) of Full
Mobility Service during the Term in all of the BTAs in which NextWave has a
license (the "Commitment").
3.2 Subject to the quality provisions detailed in Attachments D and E and
NextWave's build out conditions detailed in Section 11.3, COMPANY shall purchase
at least REDACTED % of its Commitment within the REDACTED period following
the date NextWave first offers Full Mobility Service on a commercial basis in a
NextWave BTA ("Commercial Service Date") and [REDACTED]% of its Commitment
within the [REDACTED] period following the Commercial Service Date.
In the event COMPANY fails to satisfy the Initial Purchase Commitment by
the [REDACTED] anniversary of the Commercial Service Date (the "[REDACTED]
Anniversary Date"), COMPANY shall remit to NextWave, within five (5) business
days thereof, an amount in cash equal to the difference between the Initial
Purchase Commitment and the actual number of minutes of Full Mobility Service
purchased by COMPANY prior to the [REDACTED] Anniversary Date multiplied by the
then applicable purchase price per minute being charged to COMPANY in accordance
with Section 4.1 hereof.
In the event COMPANY fails to satisfy the Secondary Purchase Commitment by
the [REDACTED] anniversary of the Commercial Service Date (the "[REDACTED]
Anniversary Date"), COMPANY shall remit to NextWave, within five (5) business
days thereof, an amount in cash equal to the difference between the Secondary
Purchase Commitment and the actual number of minutes of Full Mobility Service
purchased by COMPANY prior to the [REDACTED] Anniversary Date multiplied by the
then applicable purchase price per minute being charged to COMPANY in accordance
with Section 4.1 hereof.
In the event COMPANY fails to purchase one hundred percent (100%) of the
Commitment prior to the tenth anniversary of the Commercial Service Date (the
"Tenth Anniversary Date"), COMPANY shall remit to NextWave, within five (5)
business days thereof, an amount in cash equal to the difference between the
Commitment and the actual number of minutes of Full Mobility Service purchased
by COMPANY prior to the Tenth Anniversary Date multiplied by the then applicable
purchase price per minute being charged to COMPANY in accordance with Section
4.1 hereof.
NextWave Confidential and Proprietary 7
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION.
3.3 In addition to the amount of any purchase price to be paid by COMPANY
under this Agreement, COMPANY agrees to pay to NextWave, and NextWave will in
turn regularly remit to a third party escrow agent designated by NextWave, the
amount of [REDACTED] ($ REDACTED) (the "Escrow Payment") for the first
[REDACTED] (REDACTED) used by COMPANY under this Agreement to ensure the
purchase of the full Commitment by COMPANY. NextWave will include such Escrow
Payment on its regular invoices to COMPANY for billable MOUs. If and when
COMPANY purchases and NextWave receives all payments for the full Commitment,
then the aggregate amount of the Escrow Payments in escrow, together with
accrued interest, if any, less the reasonable costs of the escrow agent, shall
be promptly returned to COMPANY. If COMPANY fails to purchase the full
Commitment within the time required by this Agreement, or if this Agreement
expires or is otherwise terminated (other than for the convenience of or breach
by NextWave) prior to COMPANY's purchase of the full Commitment, then the
aggregate amount of the Escrow Payment held in escrow, together with accrued
interest, if any, shall be permanently retained by NextWave. Nothing contained
herein shall release COMPANY from its obligations under Section 3.2 of this
Agreement nor shall it limit NextWave's remedies, rights or relief under this
Agreement or at law or equity.
4. PRICING AND PAYMENT TERMS.
4.1 Full Mobility Pricing. Pricing for Full Mobility Service, measured in
one minute increments, for each BTA will be as set forth for in the Pricing
Schedule attached hereto as Attachment C. Next Wave's pricing illustrated in
Attachment C is exclusive of the interconnection fees and enhanced services
that are listed in Article 9.
4.2 Resale to Facilities-Based Carriers. If COMPANY resells Full Mobility
Service to facilities-based carriers and in connection therewith requires
NextWave to implement a PIC/CIC code, their COMPANY shall pay NextWave an
[REDACTED] of Full Mobility Service sold to each such carrier of management of
PIC/CIC and associated databases.
4.3 Roaming Agreements. Pricing for Full Mobility Service provided
pursuant to a Roaming Agreement will be the greater of (i) the Full Mobility
Service price set forth in the Pricing Schedule in Attachment C or (ii)
[REDACTED]
4.4 Wireless Local Loop Services. The Parties also desire to enter into an
arrangement in the future whereby NextWave would provide COMPANY with a wireless
local loop service ("Wireless Local Loop") which would be a premises based
wireless communication service similar in application to today's narrowband
wireline service offerings. The Parties intend to negotiate in good faith the
terms and conditions including, but not limited to the performance
specifications and pricing of the Wireless Local Loop service sometime following
the execution of this Airtime Agreement. Any MOUs committed or used under this
Agreement are for Full Mobility Service only. Wireless Local Loop MOUs will
require a separate commitment and will be priced separately from this Agreement.
NextWave Confidential and Proprietary 8
4.5 E911 Service. Emergency (911 and E911) and Lawful Intercept calls will
be handled by NextWave, unless otherwise required by regulatory authorities.
Each airtime invoice shall include a monthly charge (calculated on a per
subscriber basis in the maximum amount allowed by applicable regulatory
authority), for the provision of Emergency and Lawful Intercept services.
COMPANY shall pay such charges within the timeframe specified for payment of
Full Mobility Services. If regulatory authorities subsequently change the
requirements for Emergency or Lawful Intercept calls or mandate the provision of
other services, the parties shall cooperate in the provision of such services
with associated fees and charges to be handled in a similar manner to the
Emergency and Lawful Intercept Services.
4.6 Invoices.
(a) NextWave will offer COMPANY either (i) a datalink interface to
electronically deliver COMPANY's monthly billing data or (ii) a magnetic tape
version of the same. Magnetic billing tapes are NextWave's standard means of
delivering COMPANY's billing data. If COMPANY desires a datalink interface,
COMPANY will be responsible for all costs of providing and maintaining the
datalink.
(b) NextWave's billing data to COMPANY will include the customer's mobile
number, electronic serial number and peak/off-peak indicators, dialed number,
originating and terminating call site identification, and/or time stamps on a
call-by-call basis.
(c) If COMPANY desires its billing data transferred in shorter intervals
other than monthly (i.e., bi-monthly, etc.), NextWave and COMPANY will negotiate
in good faith, the terms and conditions of providing billing data in shorter
intervals.
(d) NextWave will offer multiple billing cycles from which COMPANY can
choose to allow COMPANY flexibility as to when it will be billed. COMPANY must
formally request its selected billing cycle in writing (or by some mutually
agreed to means). Absent a formal request, NextWave will assign COMPANY a
billing cycle.
(e) Invoices are payable in full upon receipt. Each invoice will contain a
Due Date. Such Due Date will be calculated based on the date the bills are
generated plus 30 days. If payment is not received by the Due Date, then a Late
Payment Penalty equal to 1.5% of the balance due will be assessed. Additionally,
a Late Payment Charge equal to 0.06% of the unpaid past due balance will be
assessed for each day that payment is not received.
(f) At NextWave's sole discretion, service may be restricted or
interrupted if payment of any undisputed past due amount is not made within ten
days after the Due Date.
(g) At NextWave's sole discretion, an additional security deposit or
letter of credit may be assessed if COMPANY incurs a Late Payment Penalty more
than once in any six month period.
(h) If NextWave commences legal proceedings to collect any undisputed past
due amount, COMPANY will be liable for all charges (including, without
limitation, collection costs, court costs and attorney's fees) reasonably
incurred by NextWave in enforcing its rights hereunder.
NextWave Confidential and Proprietary 9
4.7 Disputed Charges. COMPANY shall provide NextWave with written notice
of any disputed charges on or before the Due Date of such charges. Any disputed
charges will be handled under the dispute resolution process described in
Article 8 herein. If a disputed amount is not resolved within twenty (20) days
after the Due Date or if either party seeks resolution in accordance with
Section 8.2, then the disputed amounts shall be placed into an escrow account
pending resolution. Failure to place such amounts in an escrow account will
result in such amounts being treated as undisputed past due amounts. Any earned
interest accrued on these amounts will pass to the party being awarded the
disputed amounts. If the disputed amounts are shared in any manner between the
parties, the accrued interest will be shared in the same proportion as the
disputed amounts. Any Late Payment Penalties or Late Payment Charges incurred as
a result of past due amounts that are ultimately credited to the COMPANY will be
reversed.
4.8 Taxes and Surcharges. The prices paid by COMPANY for MOUs are
exclusive of any applicable sales, use, personal property or other taxes or
surcharges attributable to periods during the Term based upon or measured by the
MOUs and any associated services provided or used by NextWave in performing its
obligations under this Agreement. COMPANY shall reimburse NextWave on a
pass-through basis for those taxes paid by NextWave that are attributable to
COMPANY pursuant to this Section 4.8. Each party shall provide and make
available to the other any resale certificates, information regarding
out-of-state sales or use of equipment, materials or services, and other
exemption certificates or information reasonably requested by the other party.
The parties will also work together to segregate into separate payment streams,
any taxable, nontaxable or items for which a sales, use or similar tax has
already been paid by NextWave.
4.9 Retail Bad Debt and Fraud Responsibility; Detection and Prevention.
(a) Retail Bad Debt and Subscription Fraud. Retail bad debt and fraudulent
usage as a result of subscription fraud is COMPANY's sole responsibility.
COMPANY will be responsible for all originating and terminating fees, long
distance and roaming charges, and MOUs used on Next Wave's network incurred from
retail bad debt and subscription fraud.
(b) Cloning Fraud. NextWave will make reasonable efforts to limit or
eliminate cloning fraud on its network. NextWave's development of CDMA
technology and its "coding of each call" is anticipated to reduce exposure to
cloning fraud. Additionally, NextWave will make reasonable efforts to deploy
systems to monitor usage patterns, traffic patterns and the like to detect
potential cloning fraudulent use on a number. Upon detection of suspected
cloning activity, NextWave will notify COMPANY to investigate the number further
and take proper action. COMPANY will have 24 hours to substantiate the
customer's usage or to suspend service or change the mobile number/serial number
combination to correct the situation. If COMPANY determines that cloning fraud
was committed, NextWave will credit COMPANY for the local Airtime usage only
deemed to be fraudulent and incurred prior to NextWave's notice to COMPANY. In
situations where the COMPANY identifies cloning fraud that NextWave did not
detect, the COMPANY may submit a request to NextWave for credit for the local
Airtime usage only deemed to be fraudulent. In either case, the COMPANY must
supply NextWave with reasonable evidence that cloning fraud did in fact occur.
COMPANY will be responsible for all other charges, including but not limited to
long distance, international, and roaming charges, and
NextWave Confidential and Proprietary 10
for any costs incurred by the COMPANY associated with preventing, detecting or
correcting a cloning fraud occurrence. NextWave and COMPANY will work together
in good faith to curtail cloning fraud, and will follow customer-industry
practice for billing and crediting of fraudulent usage. In the event that
COMPANY, its employees or Affiliates were negligent in taking reasonable
measures to prevent cloning fraud, COMPANY will be responsible for all charges
and will not receive any credits from NextWave.
4.10 Audits of Financial Records. NextWave and COMPANY each shall keep
adequate books and records in sufficient detail to enable the amounts to be paid
under Article 4 of this Agreement. Each party shall be entitled to have an
accounting firm of national recognition reasonably acceptable to the other party
audit the relevant books and records of the other party for the purpose of
confirming the accuracy of the calculation of the amounts due under Article 4.
The auditor will disclose to the reviewing party only the information necessary
to verify the calculation of the amounts due under Article 4 and not any
confidential information of the other party, including but not limited to any
customer lists of the other party. Any such audit shall be performed at the
requesting party's expense (except if such audit reveals an overcharge of more
than five percent (5%) of the correct amount due under Article 4, then such
audit shall be at the expense of the other party), during normal business hours
after reasonable notice and, at the request of the audited party, shall be
subject to the independent agent's execution of a reasonable confidentiality
agreement. Such audits shall be conducted no more frequently than once every
year. In no event may a party commence an inspection of any statement later than
two (2) years from the date of such statement. Prior to any inspection by a
party, the parties will in good faith meet, discuss and attempt to resolve any
objection or discrepancy claimed by the party requesting the audit.
5. CONFIDENTIALITY.
5.1 Confidential Information. By virtue of this Agreement, the parties may
have access to, or exchange, information that is confidential to one another. As
used in this Agreement, the term "Confidential Information" shall mean only such
information of the other party that may be reasonably understood from legends,
the nature of such information itself and/or the circumstances of such
information's disclosure, to be confidential and/or proprietary to the other
Party or to third-parties to which the other Party owes a duty of
non-disclosure. Notwithstanding the foregoing, NextWave agrees that all of the
following information which NextWave may receive or otherwise obtain in the
course of its performance under this Agreement, including without limitation in
the course of providing the Service, shall be deemed the Confidential
Information of COMPANY for purposes for this Agreement: (i) COMPANY Subscriber
lists and numbers, account information, usage, and information regarding
business planning and operations of COMPANY and COMPANY's administrative,
financial information, forecasts, predictions or marketing reports or
activities; (ii) all Subscriber and other customer information: and (iii)
COMPANY network and Intelligent Network capabilities, interconnection
arrangements, architecture, strategies, development and implementation plans,
and vendor relationships. Notwithstanding the foregoing, COMPANY agrees that all
of the following information which COMPANY may receive or otherwise obtain in
the course of its performance under this Agreement shall be deemed Confidential
Information of NextWave for purposes for this Agreement: information concerning
NextWave's Network, Network performance trials, equipment requirements, Network
system engineering and design specifications, cell-site
NextWave Confidential and Proprietary 11
location planning strategies, Network usage and performance data, development
plans for its intelligent network and enhanced features and services, financial,
accounting or marketing reports, and business plans, analyses, forecasts, and
predictions.
5.2 Restrictions on Disclosure and Use. Each of the Parties agrees that as
to any Confidential Information relating to one party ("Discloser") obtained in
any manner by the other party ("Recipient") hereunder:
(a) to use such Confidential Information only in the performance of
this Agreement or as otherwise expressly permitted by this Agreement or by the
Discloser;
(b) not to make copies of any such Confidential Information or any
part thereof except to the extent required to fulfill the Party's obligations
under this Agreement;
(c) not to disclose any such Confidential Information to any
third-party, using the same degree of care used to protect Recipient's own
confidential or proprietary information of like importance, but in any case
using no less than reasonable degree of care; provided, however, that Recipient
may disclose Confidential Information received hereunder to (i) its Affiliates
who are bound to protect the received Confidential Information from unauthorized
use and disclosure under the terms of a written agreement (including without
limitation a pre-existing written agreement), and (ii) its employees,
consultants and agents, and it Affiliates' employees, consultants and agents,
who have a need to know to perform or exercise rights under this Agreement, and
who are bound to protect the received Confidential Information from unauthorized
use and disclosure under the terms of a written agreement (including without
limitation a pre-existing written agreement). Confidential Information shall not
otherwise be disclosed to any third-party without the prior written consent of
the Discloser; and
(d) to return to the other party, or destroy, all of such party's
Confidential Information received hereunder, whether in any tangible medium of
expression or electronic or other form or format, promptly upon the expiration
or termination this Agreement.
5.3 Exceptions. The restrictions set forth in this Article 5 on the use
and disclosure of Confidential Information shall not apply to information that:
(a) was publicly known at the time of Discloser's communication
thereof to Recipient;
(b) becomes publicly known through no fault of Recipient subsequent
to the time of Discloser's communication thereof to Recipient;
(c) is in Recipient's possession free of any obligation of
confidence at the time of Discloser's communication thereof to Recipient;
(d) is developed by Recipient independently of and without use of
any of Discloser's Confidential Information or other information that Discloser
disclosed in confidence to any third-party;
NextWave Confidential and Proprietary 12
(e) is rightfully obtained by Recipient without restriction from
third-parties authorized to make such disclosure; or
(f) is identified by Discloser in writing as no longer proprietary
or confidential.
5.4 Disclosure Pursuant to Legal Requirement. In the event Recipient is
required by law, regulation or court order to disclose any of Discloser's
Confidential Information, Recipient will promptly notify Discloser in writing
prior to making any such disclosure in order to facilitate Discloser seeking a
protective order or other appropriate remedy from the proper authority.
Recipient agrees to cooperate with Discloser in seeking such order or other
remedy. Recipient further agrees that if Discloser is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
5.5 Publicity. The Parties expressly agree that the terms and conditions
of this Agreement, and any activities contemplated hereby or performed
hereunder, are the Confidential Information of the Parties and shall not be
disclosed in any manner without the prior written approval of the other Party
(which shall not be unreasonably withheld); provided, however, that (i) COMPANY
and NextWave agree that NextWave shall have the right to issue a news release to
announce the transaction contemplated herein and (ii) the Parties acknowledge
that NextWave has filed a registration statement with the Securities and
Exchange Commission and will be required to disclose the existence of this
Agreement and describe the material terms contained herein. To the extent any
information has been disclosed to the public pursuant to this Section 5.5, such
information shall not be deemed Confidential Information. Notwithstanding the
foregoing, each party agrees that the Airtime pricing terms contained in
Attachment C are confidential and shall not be disclosed, except as may be
required by law or pursuant to any legal proceeding, in which ease the
provisions of Section 5.4 shall apply. The Parties acknowledge that NextWave
will be required to file this Agreement with the Securities and Exchange
Commission as an exhibit to its registration statement. NextWave shall seek
confidential treatment of the Airtime pricing terms.
5.6 Proprietary Notices. Each Party shall reproduce and maintain on any
copies of the other Party's Confidential Information received or made hereunder
such proprietary legends or notices (whether of the party providing the
Confidential Information or of a third-party) as are contained in or on the
original.
5.7 Return of Confidential Information. Each party agrees to return to the
other Party or destroy all of such other Party's Confidential Information
promptly upon the termination of this Agreement. Neither party shall thereafter
retain any such Confidential information or any copies thereof fixed in any
tangible medium of expression in whatever form or format.
5.8 Cooperation. In the event either Party becomes aware that any Person
(including, without limitation, any employee or agent of a party) is taking or
threatens to take any action which would violate any of the foregoing
provisions, such Party shall promptly and fully advise
NextWave Confidential and Proprietary 13
the other Party (with written confirmation as soon as practicable thereafter) of
all facts known to it concerning such action or threatened action. Neither Party
shall in any way aid, abet or encourage any such action or threatened action.
Each Party agrees to cooperate in all reasonable ways to prevent such action or
threatened action, including, without limitation, assigning any cause of action
it may have related to the violation of the foregoing provisions, to the other
Party, and each Party agrees to do all reasonable things and cooperate in all
reasonable ways as may be requested by the other Party to protect the trade
secret and proprietary rights of such other Party in and to the Confidential
Information. A Party shall also be liable for any breach of the terms of this
Article 5 in the event that Confidential Information received from the other
party is disclosed by an employee, agent or consultant of such Party or a
third-party to whom such Party has disclosed such information and such
disclosure would violate the terms of this Article 5 were such employee, agent,
consultant or third-party a party hereto.
5.9 No Use of NextWave Intellectual Property Rights. Nothing herein shall
be deemed to grant to COMPANY any right, license or other interest in or under,
or right to use, and COMPANY shall not use, any patents, copyrights, trade
secrets, trademarks, service marks, trade names or other similar designation, or
any other intellectual property rights of NextWave or any of its Affiliates.
No Use of COMPANY Intellectual Property Rights. Nothing herein shall be
deemed to grant to NextWave any right, license or other interest in or under, or
right to use, and NextWave shall not use, any patents, copyrights, trade
secrets, trademarks, service marks, trade names or other similar designation,
or any other intellectual property rights of COMPANY or any of its Affiliates.
6. LIMITED LIABILITY.
6.1 IN NO EVENT WILL EITHER PARTY AND/OR ANY OF ITS AFFILIATES BE LIABLE
TO OR THROUGH THE OTHER PARTY FOR ANY OF THE FOLLOWING:
(a) DAMAGES CAUSED BY OTHER PARTY'S AND/OR ITS AFFILIATES' OR
SUPPLIERS' FAILURE TO PERFORM THEIR OBLIGATIONS OR RESPONSIBILITIES;
(b) CLAIMS OR DEMANDS BROUGHT AGAINST THE OTHER PARTY BY THIRD
PARTIES OTHER THAN THOSE THIRD PARTY CLAIMS IN RESPECT OF WHICH SUCH PARTY IS
EXPRESSLY OBLIGATED TO INDEMNIFY THE OTHER PARTY PURSUANT TO A PROVISION OF THIS
AGREEMENT; OR
(c) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE (OR
INTERRUPTIONS OF BUSINESS), LOST SAVINGS, LOST OPPORTUNITIES OR OTHER
CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES;
ANY OR ALL OF WHICH ARISE FROM OR IN CONNECTION WITH THE DELIVERY. USE, OR
PERFORMANCE OF SERVICE GOVERNED BY THIS AGREEMENT, EVEN IF A PARTY AND/OR ANY OF
ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
NextWave Confidential and Proprietary 14
6.2 The limitations of remedies and liabilities set forth in this Article
6 shall not apply to any obligation of one party to pay the other party all
amounts due and owing under this Agreement.
7. INDEMNIFICATION.
7.1 NextWave shall indemnify, defend and hold harmless COMPANY, and all of
COMPANY's and its Affiliates' officers, directors, partners, employees and
agents, from and against any and all losses, claims, damages, liabilities or
expenses of any kind (including, but not limited to, reasonable attorneys fees
and costs) arising out of any claim, action or proceeding by a third party
against any of them to the extent it is based on (i) a claim for personal injury
(including death) or damage to personal property for which NextWave or any of
its Affiliates is legally responsible, or (ii) NextWave or any Affiliate's
failure to comply with all applicable laws, regulations and orders in the
performance of its obligations under this Agreement.
7.2 COMPANY shall indemnify, defend and hold harmless NextWave, and all of
NextWave's and its Afflliates' officers, directors, partners, employees and
agents, from and against any and all losses, claims, damages, liabilities or
expenses of any kind (including, but not limited to, reasonable attorneys fees
and costs) arising out of any claim, action or proceeding by a third-party
against any of them to the extent it is based on (i) a claim for personal
injury (including death) or damage to personal property for which COMPANY or any
of its Affiliates is legally responsible, or (ii) a claim by a customer of
COMPANY, or (iii) COMPANY or its Affiliate's failure to comply with all
applicable laws, regulations and orders in the performance of its obligations
under this Agreement.
7.3 The party seeking indemnity under the foregoing provisions shall
notify the indemnifying party of any such claim, action or proceeding, and the
indemnifying party shall promptly and at its sole cost undertake the defense
thereof, except for claims by a customer of COMPANY, for which COMPANY shall at
its sole cost undertake the defense thereof for itself, and upon demand thereof,
NextWave and/or its Affiliates. No such claim shall be compromised or settled
without the prior written consent of the indemnified party if the settlement
would restrict or adversely affect the indemnified party. Such consent shall not
be unreasonably withheld. After the indemnified party tenders the defense of any
such claim, action or proceeding, the indemnified party shall have the right to
participate at its own cost and expense in such claim, action, or proceeding
using counsel of its own choosing.
8. DISPUTE RESOLUTION
8.1 Dispute Resolution. Either Party may identify a dispute that has
arisen in performance of this Agreement by notifying the other Party's account
manager in writing, setting forth the dispute with reasonable specificity. The
account managers shall promptly attempt to resolve such dispute by negotiation.
If within ten (10) calendar days of written notice of a dispute the account
managers have been unable to resolve it, then either Party may escalate
resolution of the dispute to an appropriate senior executive of NextWave or to
an appropriate senior executive of COMPANY by notifying them in writing, setting
forth the dispute with reasonable specificity. The senior executives shall
attempt to resolve such dispute by negotiation. If within ten (10) calendar days
of such escalation of a dispute the senior executives have been
NextWave Confidential and Proprietary 15
unable to resolve it, then either Party may seek resolution of the dispute by
arbitration in accordance with Section 8.2.
8.2 Arbitration. Without prejudice to either party's right to seek
equitable relief (including, but not limited to, injunction) from a court, any
dispute arising out of or related to this Agreement. which cannot be resolved by
negotiation, shall be settled by binding arbitration in accordance with the
J.A.M.S./ENDISPUTE arbitration rules and procedures ("Endispute Rules") and in
accordance with the terms of this Article 8. The costs of arbitration, including
the fees and expenses of the arbitrator, shall be shared equally by the parties
unless the arbitration award provides otherwise. Each party shall bear the cost
of preparing and presenting its case. The parties agree that this provision and
the Arbitrator's authority to grant relief shall be subject to the United States
Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this
Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial
Disputes. The parties agree that the arbitrator shall have no power or authority
to make awards or issue orders of any kind except as expressly permitted by this
Agreement, and in no event shall the arbitrator have the authority to make any
award that provides for punitive or exemplary damages. The arbitrator's decision
shall follow the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of competent
jurisdiction. All post-award proceedings shall be governed by the USAA.
9. TERM.
This Agreement shall be effective when executed. The Term of this
Agreement shall be ten (10) years with one (1) renewal option for COMPANY to
renew for an additional five (5) years, which renewal shall not be unreasonably
withheld; provided that if COMPANY elects to renew the Agreement the parties
shall review and adjust the pricing. The Term shall commence upon the first day
of commercial availability of Full Mobility Service in any NextWave BTA, where
the conditions in Section 11.3 below are met. One (1) year prior to the
expiration of the initial ten-year Term, the parties will meet to determine the
pricing for the five-year renewal period. If the parties are unable to reach
agreement six (6) months prior to the expiration of the initial ten-year Term,
the then existing terms and conditions, including pricing shall continue for a
transition period of six (6) months after the expiration of the initial ten-year
Term. If, in the event that COMPANY exceeds five (5) billion billable MOU during
the Term, then the parties will meet to determine the pricing for volume breaks
above five (5) billion MOU for the Airtime table in Attachment C.
10. TERMINAT1ON PROVISION.
10.1 NextWave may terminate this Agreement without liability by written
notice to COMPANY in the event that:
(i) COMPANY fails to pay any amounts due hereunder within (30) days
after notice from NextWave other than amounts that are being reasonably disputed
pursuant to Section 4.6; or
(ii) COMPANY's use of NextWave's services or network (a) violates
any laws, rules or regulations (b) is in non compliance with services standards
established by NextWave; or
NextWave Confidential and Proprietary 16
(iii) COMPANY commits a material breach of this Agreement and it is
not cured within sixty (60) days of notice from NextWave.
10.2 COMPANY may terminate this Agreement without liability by written
notice to NextWave in the event that:
(i) NextWave fails to meet the conditions provide for in Section
11.3; or
(ii) NextWave commits a material breach of this Agreement and it is
not cured within sixty (60) days of notice from COMPANY.
(iii) Within the earlier of forty-five (45) calendar days from the
date of execution of this Agreement or December 12, 1996, there is a voluntary
or involuntary Transfer of Control and Ownership of COMPANY to a non-COMPANY
Affiliate.
11. MISCELLANEOUS.
11.1 Governing Law and Choice of Forum. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York other than
the laws thereof that would require reference to the laws of any other
jurisdiction. For all purposes for which resort to a court may be had, the
parties irrevocably consent to the exclusive jurisdiction and venue of the
federal and state courts located in the State of New York.
11.2 Notices. All notices, demands, requests, or other communications
which may be or are required to be given or made by any party, to the other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, mailed first-class registered or certified mail, return receipt
requested, postage pre-paid, delivered by overnight air courier, or transmitted
by telegram, telex, or facsimile transmission addressed as follows:
If to Personal Communications Network, Inc.:
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: (000) 000-0000
NextWave Confidential and Proprietary 17
If to NextWave:
NextWave Wireless Inc.
0 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Assistant Vice President, Business Planning & Development
Fax: (000)000-0000
with a copy to:
NextWave Wireless Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
Fax: (000)000-0000
Each Party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be given, served or
sent. Each notice, demand, request or communication which shall be mailed,
delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent or received for all purposes at such time as it
is delivered to the addressees (with the return receipt, the delivery receipt or
affidavit of messenger, or the facsimile answer back being deemed conclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
11.3 Conditions. COMPANY's commitment to purchase Airtime from NextWave is
subject to each or the following conditions being satisfied: (a) NextWave
offering commercial mobility service in Markets covering at least 40 million
POPs by December 31, 1998, and at least 70 million POPs by December 31, 2001;
(b) NextWave providing Airtime in its Markets meeting the system performance
criteria and technical specifications detailed in Attachment D and Attachment E
respectively; and (c) NextWave providing COMPANY and its Affiliates
interconnection as specified in Section 2.6.
11.4 Force Majeure. Neither party shall be liable for delays in delivery
or performance, or for failure to provide service, deliver or perform when
caused by any of the following which are beyond the reasonable control of the
delayed party:
(i) Acts of God, acts of the public enemy, acts or failures to act
by the other party, acts of civil or military authority, governmental
priorities, strikes or other labor disturbances, hurricanes, earthquakes, fires,
floods, epidemics, embargoes, war, riots, delays in transportation, and loss or
damage to goods in transit; or
(ii) Inability on account of causes beyond the reasonable control of
the delayed party to obtain products, components, services or facilities.
NextWave Confidential and Proprietary 18
In the event of such delay, the date of delivery or performance shall be
extended for a period equal to the effect of the time lost by reason of the
delay.
11.5 Assignment. This Agreement may not be assigned, in whole or in part,
by any Party without the prior written consent of the other Party, except that
either Party may assign this Agreement to any of its Affiliates without the
consent of the other Party and either Party may assign this Agreement to a
successor in connection with the acquisition of the Party; provided that the
successor confirms by written agreement its agreement to assume the acquired
Party's obligations under this Agreement. For purposes of this subsection only,
the term "Affiliates" shall mean an entity under common control, controlling or
controlled by a Party; provided that "control" as used herein shall mean the
ownership, directly or indirectly, of at least eighty percent (80%) of the
aggregate of all voting interests in such entity. Any other attempt to assign
this Agreement shall be null, void and of no force or effect.
11.6 Authorization and Enforceability. Each party hereby represents that:
(A) it has all requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby;
(B) the execution, delivery and performance of this agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the party of each party; and
(C) this Agreement has been duly executed and delivered by such
party and is valid and binding obligation of such party, enforceable against it
in accordance with its terms.
11.7 Severability. If any provision of this Agreement shall be found by
any court or administrative body of competent jurisdiction to be invalid or
unenforceable, the invalidity or unenforceability of such provision shall not
affect the other provisions of this Agreement and all provisions not affected by
such invalidity or unenforceability shall remain in full force and effect. The
parties hereby agree to attempt to substitute for any invalid or unenforceable
provision a valid and enforceable provision which achieves to the greatest
extent possible the economic, legal and commercial objectives of the invalid and
unenforceable provision.
11.8 Survival. The following provisions shall survive the termination of
this Agreement, and shall continue in full force and effect along with any other
provisions of this Agreement which by their nature or in accordance with the
terms, whether or not listed, shall survive such termination: Articles 5, 6, 7,
8 and 9 and Sections 4.9, 11.1, 11.2, 11.7, 11.8, 11.13, 11.14, 11.16 and 11.17.
11.9 Entire Agreement. This Agreement, which includes the attached
Schedules, constitutes the entire agreement and understanding between the
parties hereto in connection with subject matter hereof, and supersedes and
cancels all previous negotiations, commitments and writings with respect
thereto.
NextWave Confidential and Proprietary 19
11.10 Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of, or on behalf of, each party or the signatures
of all persons required to bind party, appear on each counterpart; but it shall
be sufficient that the signature of, or on behalf of, each party, or the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement.
11.11 Captions for Convenience Only. The captions used in this Agreement
are included for convenience only and shall not be considered part of this
Agreement for any purpose. Unless expressly state otherwise, all references
herein to "Articles" are to the relevant portions of this Agreement, and all
references to "Schedules" are to the attachments to this Agreement.
11.12 Amendment. This Agreement shall not be amended, modified or
rescinded in any manner, except by an instrument in writing signed by duly
authorized representatives of each of the parties hereto.
11.13 No Third-Party Beneficiary. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties and their
respective successors and permitted assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third person
to any party, nor shall any provision give any third person any right of
subrogation or action against any party.
11.14 Expenses. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated hereby are consummated, each party
will pay its own costs and expenses incurred in connection with the negotiation
and execution of this Agreement and the transactions contemplated hereby
(including executing all such documents and doing such acts and things as may
reasonably be required for the purpose of giving full effect to this Agreement).
11.15 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
11.16 Binding. This Agreement is binding upon, inures to the benefit of
and is enforceable by the parties hereto and their respective permitted
successors and assigns.
11.17 Specific Performance. The obligations of the parties under Article 5
of this agreement are unique. If any party should be in Default under Article 5
of this Agreement, the Defaulting Party acknowledges that it would be extremely
impracticable to measure the resulting damages. Accordingly, in addition to any
other available rights or remedies, the Non-Defaulting Party may xxx in equity,
for specific performance and the Defaulting Party expressly waives the defense
that a remedy in damages would be adequate.
NextWave Confidential and Proprietary 20
11.18 Regulatory Compliance. Notwithstanding any provision in this
Agreement to the contrary, NextWave shall not be obligated to furnish COMPANY
with Full Mobility Services under rates, charges, terms or conditions that
violate any applicable provisions of the Communications Act of 1934, as amended,
the applicable rules, regulations or policies of the FCC or any other federal or
state agency with jurisdiction over NextWave's services.
[Remainder of Page Intentionally Left Blank]
NextWave Confident and Proprietary 21
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective and
delivered as of the date set forth below.
PERSONAL COMMUNICATIONS NEXTWAVE WIRELESS INC.,
NETWORK, INC. A DELAWARE CORPORATION
A DELAWARE CORPORATION
Date: October 29, 1996 Date: October 29, 1996
---------------------------- -----------------------------
/s/ Xxx Xxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------- -----------------------------
(Signature) (Signature)
By: Xxx Xxxxxx By: Xxxxx X. Xxxxxxx
---------------------------- -----------------------------
Title: President Title: AVP - Business Plng. & Devlp.
---------------------------- -----------------------------
NextWave Confidential and Proprietary 22
ATTACHMENT A
NextWave's Network Elements and Functionality
The following are the network elements and functionality NextWave will make
available, to the extent practicable and pursuant to pricing specified in the
Agreement, in each PCS market either directly or indirectly through a third
party:
a.) Advanced Intelligent Network ("AIN") Platform. The AIN platform is the
platform from which COMPANY will store and offer its and customers all of their
non-switched based vertical services. As an option, when available NextWave may
provide its AIN platform.
b.) Third Party Interconnection Access. The physical interconnection to
the Public Switching Telephone Network ("PSTN"). The responsibility for the
associated monthly and usage-sensitive costs for such circuits carrying
COMPANY's customers' mobile-to-landline and landline-to-mobile traffic to and
from NextWave's network is COMPANY's.
c.) Backhaul Interconnection. In BTA markets where COMPANY is a local
access provider of facilities, COMPANY will make available to NextWave standard
T1 and T3 facilities at COMPANY's most favorable rate for like terms,
quantities, and conditions. These facilities may be used by NextWave for
switch-to-base station, switch-to-base station controller, base station-to-base
controller and switch-to-switch connections.
d.) SS-7 Backbone. The SS-7 signaling backbone network carrying standard
IS-41 message sets between NextWave's network and COMPANY's HLR database
access.
e.) FCC License to Provide PCS. The Federal Communications Commission's
("FCC") license to provide Personal Communication Service ("PCS") in the markets
of interest.
f.) Radio Coverage and Access. The deployment of competitive coverage at a
predetermined and mutually agreed to minimum level/grade of PCS access service.
g.) Mobile Switching Center. The switching capability to provide the end
customer with the proper mobility and roaming capability. AIN software for
standard IS-41 interconnection to COMPANY's AIN platform and PSTN
interconnection.
h.) Switch-based Vertical Services. These end customer vertical software
services provided at the Mobile Switching Center for example, but not limited
to, Call Waiting, Call Forwarding, Three-Way Calling, and Caller ID.
i.) Local Wireless Operations and Management of the Network. NextWave will
design, engineer, construct, and maintain the PCS network in each BTA and
maintain a minimum service availability level.
Next Wave Confidential and Proprietary
ATTACHMENT B
NextWave's PCS Markets
--------------------------------------------------------------------------------
Colonial Region Lone Star Region Ohio Valley Region
Boston, MA Austin, TX Cincinnati, OH
Manchester/Nashua, NH Xxxxx-College Station, TX Columbus, OH
New London, CT Houston, TX Dayton, OH
Portland/Brunswick, ME San Antonio, TX
Providence, RI Temple-Killeen, TX Hoosier Region
Worcester, MA Bloomington, IN
Amigo Region Columbus, IN
Hollywood Region Brownsville, TX Evansville, IN
Los Angeles, California El Paso, TX Indianapolis, IN
Las Cruces, NM Lafayette, IN
Dolphin Region McAllen, TX
San Diego, California Sooner Region
NY-Metro Region Oklahoma City, OK
Albany, NY
Capital Region Allentown, PA
Baltimore, MD New Haven, CT Thoroughbred Region
Hagerstown, MD Poughkeepsie, NY Lexington, KY
Norfolk, VA Scranton, PA Louisville, KY
Richmond, VA
Washington, DC Twin Cities Region
Big Apple Region Minneapolis, MN
NYC BTA
Greengrass Region
Asheville, NC Rocky Mountain Region
Charlotte, NC Steeler Region Denver
Greensboro, NC Pittsburgh, PA
Hickory, NC Pacific Xxxxxxxxx Xxxxxx
Xxxxxxx, XX Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX
Gainsville, FL Longview, WA
Mid. America Jacksonville, FL Olympia, WA
Joplin, MO Lakeland-Winter Haven, FL Portland, OR
Kansas City, MO Melbourne, FL Seattle, WA
Springfield, MO Orlando, FL
Sarasota, FL
Buckeye Region Tampa, FL
Cleveland, OH
--------------------------------------------------------------------------------
NextWave Confidential and Proprietary
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE COMMISSION.
ATTACHMENT C
PRICING SCHEDULE
[REDACTED]
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION.
Attachment D
System Performance Criteria
1.1 Coverage Area
The Coverage Area shall be that minimal signal strength necessary to provide
service such that calls are successful [REDACTED] of the time averaged along the
Coverage Area boundary, irrespective of the direction of the call (land-mobile,
mobile-land) with no greater than [REDACTED] frame error rate (FER) on average.
1.2 Handset Compatibility
NextWave shall demonstrate the full compatibility of its network with handsets
of COMPANY's choice that have been certified as compliant with domestic PCS
interface standards, so long as these handsets have been demonstrated to be
fully compatible with one other domestic IS-95 (CDMA) compliant 1.9 GHz network
and certified as IS-95, 1.9 GHz compliant by recognized standard or
certification bodies.
1.3 Network Call Blockage/Quality Objectives
The following considerations are required concerning network call blockage:
o Average busy hour blockage within the NextWave network will not exceed
[REDACTED] of all call attempts.
o The above values are to be met, unless superseded by necessary regulatory
mandates.
o Emergency calls should be given the highest possible resource priority.
1.4 Dropped Calls
The number of dropped calls measured over a period of a month in a Coverage Area
shall not exceed [REDACTED] of the total number of subscriber calls originated
in that Coverage Area.
1.5 Network Availability
NextWave will engineer and manage its network to meet the above service and
quality levels established for the Coverage Area. The emphasis of management
activities will be on preventative maintenance, such that potential outages will
be resolved before customers are affected.
A Network Outage is the inability, or a significant degradation in the ability
of a customer to establish and maintain a channel of communication as a result
of failure or degradation in the performance of NextWave's network.
NextWave Confidential and Proprietary
In the event of a major network outage, NextWave will notify COMPANY of the
conditions affecting the customers, including, but not limited to out-of-service
events, and high system traffic loads.
Any FCC-reportable Network Outages, including disruption of 91l/E911 and
emergency services will be reported to COMPANY.
1.6 Performance Verification
NextWave will provide to the COMPANY statistics that define the performance of
the network including blocked calls, dropped calls, and frame error rates. In
addition, NextWave will provide coverage maps that define the Coverage Area.
NextWave Confidential and Proprietary
ATTACHMENT E
NextWave shall be in general compliance with the following standards:
I. Wireless Network Interface Standards
A. IS-4lRev B Cellular Radio Telecommunications Intersystem Operations
NextWave's Network shall be in general compliance with IS-41 Revision B. This
shall be upgraded to be in general compliance with IS-41 Revision C when IS-41
Revision C is commercially available.
B. EIA/TIA/IS-52: Uniform Dialing Procedures and Call Processing Treatment For
Cellular Radio Telecommunications - November, 1989
C. EIA/TIA/IS-52-A: Uniform Dialing Procedures and Call Processing Treatment For
Cellular Radio Telecommunications - When Published
D. EIA/TIA/IS-53: Cellular Features Description: - August, 1991
E. EIA/TIA/IS-53-A: Cellular Features Description: - May, 1995
F. EIA/TIA/IS-93: Cellular Radio Telecommunications X-X Xxxxxxxxx Xxxxxxxxx
- Xxxxxxx, 0000.
II. SS7 Interface Standards
A. TR-NWT-000246: Xxxx Communications Research Specification of Signaling System
Number 7, Issue 3
B. TR-NWT-000082: Signaling Transfer Point Generic Requirements, Issue 5
C. TR-TSY-000317: Switching System Requirements for Call Control Using the
Integrated Services Digital Network User Part (ISDNUP)
D. TR-TSY-000394: Switching System Requirements for Interchange Carriers Using
the Integrated Services Digital Network User Part (ISDNUP)
E. TR-NWT-000444: Switching system Generic Requirements supporting ISDN Access
using the Integrated Services Digital Network User Part (ISDNUP)
F. ANSI T1.114 SS7 Transaction Capabilities Application Part (TCAP)
G. ANSI T1.112: SS7 Signaling Connection Control Part (SCCP)
H. ANSI T1.111: SS7 Message Transfer Part (MTP)
III. Air Interface Standards
A. ANSI-J-STD-008: Personal Station -Base station Compatibility requirements for
1.8 to 2.0 GHz CDMA Personal Communications Systems.
NextWave Confidential and Proprietary
