Exhibit 10.9
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT is made as of February 28, 2000, by
and between AT&T WIRELESS PCS, LLC, a Delaware corporation ("AT&T PCS") and
TELECORP PCS, INC., a Delaware corporation ("TELECORP").
WHEREAS, AT&T PCS and Telecorp are parties to that certain License and
Asset Exchange and Acquisition Agreement bearing date even herewith (the
"EXCHANGE AND ACQUISITION AGREEMENT"), pursuant to which, INTER ALIA, Telecorp
will exchange various assets and licenses in the Worcester, Boston and Hyannis,
MA and Manchester, NH markets listed on Schedule 1 of the Exchange and
Acquisition Agreement (the "BOSTON ASSETS") in return for the Wisconsin Licenses
and the Iowa Licenses (as defined in the Exchange and Acquisition Agreement);
WHEREAS, prior to the consummation of the transactions contemplated by
the Exchange and Acquisition Agreement, Telecorp has owned and operated the
Boston Assets; and
WHEREAS, AT&T PCS will require Telecorp's services with regard to
certain operations related to the Boston Assets during a transition period
specified herein subsequent to the closing of the Exchange and Acquisition
Agreement, and Telecorp has agreed to provide such services, on the terms and
conditions as hereinafter provided.
NOW THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"AFFILIATE" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
Notwithstanding the foregoing, for purposes of this Agreement, neither Telecorp
nor AT&T PCS shall be considered an Affiliate of the other.
"AGREEMENT" means this Transition Services Agreement, including the
schedules and tables hereto, as the same may be amended, modified or
supplemented in accordance with the terms hereof.
"AT&T PCS" has the meaning set forth in the preamble.
"AT&T PCS INDEMNIFIED PARTY" has the meaning set forth in Section 5.2.
"BOSTON ASSETS" has the meaning set forth in the preamble.
"CLOSING" shall mean the closing of the transactions set forth in the
Exchange and Acquisition Agreement.
"CLOSING DATE" has the meaning set forth in the Exchange and
Acquisition Agreement.
"CONFIDENTIAL INFORMATION" means any and all information regarding the
business, finances, operations, products, services and customers of the Person
specified and its Affiliates, in written or oral form or in any other medium.
Without limiting the generality of the foregoing, Confidential Information of
AT&T PCS shall include any and all such information relating to the Boston
Assets.
"CONSENT" means all consents, licenses, sublicenses and approvals of
Governmental Authorities or other third parties necessary to authorize, approve,
or permit Telecorp to provide the Transition Services.
"EXCHANGE AND ACQUISITION AGREEMENT" has the meaning set forth in the
recitals.
"GOVERNMENTAL AUTHORITY" means a Federal, state or local court,
legislature, governmental agency, commission or regulatory or administrative
authority or instrumentality.
"LOSSES" has the meaning set forth in Section 5.1.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"REPRESENTATIVES" has the meaning set forth in Section 6.1(a).
"SUBSCRIBER" has the meaning set forth in Schedule A hereto.
"TELECORP" has the meaning set forth in the preamble.
"TELECORP INDEMNIFIED PARTY" has the meaning set forth in Section 5.1.
"TRANSITION SERVICES" has the meaning set forth in Section 2.1(b).
All other capitalized terms used herein and not otherwise defined
herein have the meanings given to such terms in the Exchange and Acquisition
Agreement.
ARTICLE II
SERVICES TO BE PERFORMED; TERM; PERFORMANCE AND
COOPERATION.
2.1 SERVICES. (a) Upon the terms and subject to the conditions hereof,
commencing on the Closing Date and ending on the 180th day following the Closing
Date or such other date as the parties may otherwise agree (the "Termination
Date"), subject to extension as provided in Section 2.4, Telecorp will provide
the Transition Services in the amounts and to the extent specified with respect
to each such Service in the applicable Schedule. Telecorp shall cooperate with
AT&T PCS with regard to the exchange of information, providing electronic access
to data systems used in connection with the Transition Services. In addition,
each Party shall use commercially reasonable efforts to obtain all Consents
necessary or desirable to permit each party to perform its obligations
hereunder. AT&T PCS will provide any data feeds necessary for Telecorp to
perform its obligations hereunder, including any from the systems being
transferred to AT&T PCS under the Exchange and Acquisition Agreement.
(b) The parties will cooperate in good faith to identify as
expeditiously as practicable after the date hereof the transition services (the
"Transition Services") to be provided by Telecorp hereunder so that the
customers of the Boston Business will continue to enjoy all of their existing
customer and network services, and features and functionalities. The Transition
Services will be set forth in Exhibit 2.1(b) hereto.
2.2 PERFORMANCE. Telecorp shall provide the Transition Services in a
time frame consistent with its past practices and at substantially the same
level and quality as provided by Telecorp as of the Closing Date. Telecorp may
use third-party vendors to perform the Transition Services, in which event
Telecorp shall use commercially reasonable efforts to cause such vendors to
perform such Services in accordance with this Agreement. If any vendor fails to
so perform, AT&T PCS may seek (and Telecorp shall cooperate with AT&T PCS to
seek) redress against such vendor, and not against Telecorp, which shall not
(except to the extent provided in the preceding sentence) be responsible for any
action or failure to act by third-party vendors selected in good faith by
Telecorp. Telecorp will maintain complete and accurate books and records
documenting the performance of Transition Services under this Agreement. As
needed from time to time during the period during which Transition Services are
provided, and upon termination of the provision of any Transition Services,
Telecorp will provide AT&T PCS with all records in its possession (in an
agreed-upon format, electronic or otherwise) related to the
provision of Transition Services under this Agreement and such other information
as may be reasonably requested necessary AT&T PCS for the operation, use or
maintenance of the Boston Assets, including, but not limited to, billing and
other related records.
2.3 ADDITIONAL SERVICES. The parties will consult with each other in
good faith, as required, with respect to the furnishing of and payment for
special or additional services, extraordinary items and the like, and will
establish pre-approval routines for such additional services to the extent
reasonably feasible.
2.4 TERM. This Agreement shall become effective as of the Closing Date
and shall terminate on the Termination Date; provided, that AT&T PCS may elect
to extend this Agreement with respect to certain of the Transition Services (to
be determined by agreement of the parties) for an additional 90 days upon notice
to Telecorp given at least ten days prior to the Termination Date.
2.5 TERMINATION. Notwithstanding anything to the contrary contained
herein, this Agreement may be terminated, in whole or in part, at any time:
(a) by the mutual consent of Telecorp and AT&T PCS;
(b) by AT&T PCS on 15 days' prior notice to Telecorp; or
(c) by Telecorp in the event of any material breach or default by AT&T
PCS's obligations under this Agreement and the failure of AT&T PCS to cure such
breach or default within fifteen (15) days after receipt of notice from Telecorp
requesting such breach or default to be cured.
ARTICLE I ARTICLE III
PAYMENT
3.1 CONSIDERATION. (a) AT&T PCS shall reimburse Telecorp for all
out-of-pocket expenses ("Out-of-Pocket Expenses") reasonably incurred by
Telecorp for goods and services provided by third parties to, for or on behalf
of AT&T PCS or incurred by Telecorp in the performance of its duties and
responsibilities hereunder. Telecorp shall provide AT&T PCS with a statement
setting forth in reasonable detail (and with copies of invoices or other
supporting documentation) the Out-of-Pocket Expenses claimed within thirty (30)
days after they are incurred, provided, that Out-of-Pocket Expenses incurred in
the last thirty (30) days of any fiscal year shall be claimed or estimated in
good faith at least two weeks prior to the end of such fiscal year. AT&T PCS
shall pay to Telecorp each such amount within thirty (30) days of receipt of
such statement and invoices or other supporting documentation (it being
understood that estimated Out-of-Pocket Expenses will not be reimbursed until
Telecorp provides AT&T PCS with the invoices or other supporting documentation
therefor). AT&T PCS shall also be responsible for the payment of any applicable
sales, use and other taxes, levies and charges relating to the provision of
goods or services received with respect to the Transition Services provided by
Telecorp hereunder, but not any taxes attributable to Telecorp's net income. If
Telecorp is required to pay any such taxes, levies or charges, AT&T PCS will
promptly reimburse Telecorp therefor. Amounts not paid when due will bear
interest at one percent (1%) per month or portion thereof overdue.
(b) To the maximum extent practicable, Telecorp will specifically
identify costs associated with the Transition Services, which shall be
reimbursed by AT&T PCS as Out-of-Pocket Expenses in accordance with Section
3.1(a). To the extent that such specific identification is impracticable,
Telecorp shall charge AT&T PCS "Cost Allocations" for those common costs which
benefit AT&T PCS. Cost Allocations shall be calculated in the manner reasonably
determined by the parties as expeditiously as practicable after the date hereof
and set forth in Exhibit 3.1(b). Telecorp shall cause to be furnished to AT&T
PCS an accounting of any such Cost Allocations, and AT&T PCS shall pay to
Telecorp such amount within thirty (30) days of receipt of such accounting.
Amounts not paid when due will bear interest at one percent (1%) per month or
portion thereof overdue.
ARTICLE IV
RELATIONSHIP OF PARTIES.
4.1 TELECORP'S EMPLOYEES. All employees and representatives of Telecorp
providing Transition Services hereunder shall be deemed for purposes of all
compensation and employee benefits to be employees or representatives solely of
Telecorp, and not to be employees or representatives of AT&T PCS. In performing
their respective duties hereunder, all such employees and representatives of
Telecorp shall be under the direction, control and supervision of Telecorp (and
not of AT&T PCS) and Telecorp shall have the sole right to exercise all
authority with respect to the employment (including termination of employment),
assignment and compensation of such employees and representatives.
4.2 INDEPENDENT CONTRACTORS. The parties hereto are independent
contractors, and neither party nor its employees or agents will be deemed to be
employees or agents of the other for any purpose or under any circumstances. No
partnership, joint venture, alliance, fiduciary or any relationship other than
that of independent contractors is created hereby, expressly or by implication.
ARTICLE II ARTICLE V
INDEMNIFICATION
5.1 INDEMNIFICATION BY AT&T PCS. AT&T PCS shall indemnify, defend, and
hold harmless Telecorp and its Affiliates, and the respective directors,
officers, shareholders, employees, agents and/or legal representatives of any of
them (each, a "TELECORP INDEMNIFIED PARTY"), against all liabilities and
expenses (collectively, "LOSSES") incurred by any Telecorp Indemnified Party
(including, without limitation, amounts paid in satisfaction of judgments, in
compromise, as fines and penalties, and as reasonable counsel fees and Losses
incurred in connection with the investigation, defense, or disposition of any
action, suit or other proceeding in which any Telecorp Indemnified Party may be
involved or with which any Telecorp Indemnified Party may be threatened (whether
arising out of or relating to matters asserted by third parties against an
Telecorp Indemnified Party or incurred or sustained by such party in the absence
of a Third-Party claim)), that arise out of or result from a demand, claim,
lawsuit, action or proceeding relating to any such Telecorp Indemnified Party's
conduct in connection with the provision of Transition Services to AT&T PCS
under this Agreement, provided that such conduct did not constitute negligence,
willful misconduct, willful refusal to act or breach of this Agreement by any
Telecorp Indemnified Party.
5.2 INDEMNIFICATION BY TELECORP. Telecorp shall indemnify, defend, and
hold harmless AT&T PCS and its Affiliates, and the respective directors,
officers, shareholders, employees, agents and/or legal representatives of any of
them (each, a "AT&T PCS INDEMNIFIED PARTY"), against all Losses incurred by any
AT&T PCS Indemnified Party (including, without limitation, amounts paid in
satisfaction of judgments, in compromise, as fines and penalties, and as
reasonable counsel fees and Losses incurred in connection with the
investigation, defense, or disposition of any action, suit or other proceeding
in which any AT&T PCS Indemnified Party may be involved or with which any AT&T
PCS Indemnified Party may be threatened (whether arising out of or relating to
matters asserted by third parties against a AT&T PCS Indemnified Party or
incurred or sustained by such party in the absence of a Third-Party claim)),
that arise out of or result from negligence, willful misconduct or willful
refusal to act on the part of any Telecorp Indemnified Party in the provision of
Transition Services to AT&T PCS. Telecorp shall not be liable, responsible or
accountable for Losses under this Agreement except as expressly set forth in the
immediately preceding sentence.
5.3 NOTICE AND DEFENSE OF CLAIMS. Each party shall give prompt written
notice to the other of the assertion or commencement of any claim, demand,
investigation, action, suit or other legal proceeding in respect of which
indemnity is or may be sought hereunder; provided, however, that this notice
requirement shall not apply to any claim, demand, investigation, action, suit or
other legal proceeding in which the parties are litigating claims against each
other. Any claim, demand, investigation, action, suit or legal proceeding
brought by one party against the other shall state with reasonable specificity
the basis of such claim, including the section of this Agreement
allegedly breached or inaccurate. The failure by any party to give such notice
to the other party shall relieve such other party of its obligations under this
Article V if and only to the extent that it has been prejudiced by the lack of
timely and adequate notice. The indemnifying party shall have the right and
obligation to assume, at its own expense, the defense or settlement of any
third-party claim, demand, investigation, action, suit or other legal proceeding
in respect of which it is obligated to provide indemnity hereunder; provided,
however, that the indemnifying party shall not settle or compromise any such
claim, demand, investigation, action, suit or other legal proceeding without the
indemnified party's prior written consent thereto, unless the terms of such
settlement or compromise unconditionally discharge and release the indemnified
party from any and all liabilities and obligations thereunder and do not involve
a remedy other than the payment of money solely by the indemnifying party.
Notwithstanding the foregoing, the indemnified party at all times shall have the
right, at its option and expense, to participate fully in the defense or
settlement of such claim, demand, investigation, action, suit or other legal
proceeding. The parties shall cooperate fully in defending or settling any
third-party claim, demand, investigation, action, suit or other legal
proceeding, and the defending or settling party shall have reasonable access to
the books and records and personnel of the other party that are relevant to such
claim, demand, investigation, action, suit or other legal proceeding.
5.4 LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING
LOST PROFITS OR LOST REVENUES) OF THE OTHER PARTY, ITS SUCCESSORS, ASSIGNS OR
THEIR RESPECTIVE AFFILIATES, AS A RESULT OF OR ARISING FROM THIS AGREEMENT,
REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF
WARRANTY, INDEMNIFICATION OR OTHERWISE.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIALITY.
(a) Each party shall, and shall cause each of its Affiliates, and
its and their respective shareholders, members, managers, directors,
officers, employees and agents (collectively, "Representatives") to,
keep secret and retain in strictest confidence any and all Confidential
Information relating to any other party, and shall not disclose such
Confidential Information, and shall cause its Representatives not to
disclose such Confidential Information, to anyone except the receiving
party's Affiliates and Representatives and any other Person that agrees
in writing to keep in confidence all Confidential Information in
accordance with the terms of this Section 6.1. Each party agrees to use
Confidential Information received from the other party only for
purposes of this Agreement.
(b) The obligations set forth in Section 6.1(a) shall be
inoperative with respect to Confidential Information that (i) is or
becomes generally available to the public other than as a result of
disclosure by the receiving party or its Representatives, (ii) was
available to the receiving party on a nonconfidential basis prior to
its disclosure to the receiving party, or (iii) becomes available to
the receiving party on a nonconfidential basis from a source other than
the providing party or its agents, provided, that such source is not
bound by a confidentiality agreement or obligation with the providing
party or the providing party's agents.
(c) To the fullest extent permitted by Law, if a party or any of
its Affiliates or Representatives breaches, or threatens to commit a
breach of, this Section 6.1, the party whose Confidential Information
shall be disclosed, or threatened to be disclosed, shall have the right
and remedy to have this Section 6.1 specifically enforced by any court
having jurisdiction, it being acknowledged and agreed that money
damages will not provide an adequate remedy to such party. Nothing in
this Section 6.1 shall be construed to limit the right of any party to
collect money damages in the event of breach of this Section 6.1.
(d) Anything else in this Agreement notwithstanding, each party
shall have the right to disclose any information, including
Confidential Information of the other party or such other party's
Affiliates: (i) to the other party and its Affiliates or
Representatives; (ii) as otherwise required by Law or
legal process, including securities Laws; provided, that any such
disclosure shall be as limited in scope as possible and shall be made
only after giving the other party as much notice as practicable of such
required disclosure and an opportunity to contest such disclosure if
applicable; or (iii) as required to enforce its rights under this
Agreement.
(i) ARTICLE VII
(ii) MISCELLANEOUS PROVISIONS
7.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented only by written agreement of each of the parties.
7.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of any of the parties
to comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires
consent by or on behalf of any party hereto, such consent shall not be
unreasonably withheld, conditioned or delayed.
7.3 NOTICES. All notices or other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, addressed as follows (or to such other address for a
party as shall be specified by like notice; provided, that notice of a change of
address shall be effective only upon receipt thereof):
If to AT&T PCS: 0000 000xx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
If to Telecorp: 0000 X. Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn:Xxxxxx X. Xxxxxxxx
Facsimile No.: 000-000-0000
7.4 PARTIES IN INTEREST; SUBCONTRACTING; ASSIGNMENT. This Agreement is
binding upon, and is solely for the benefit of the parties hereto, and the AT&T
PCS Indemnified Parties and the Telecorp Indemnified Parties to the extent
provided in Article V, and their respective permitted successors, legal
representatives and permitted assigns, provided, that neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assignable or
transferable by either party without the prior written consent of the other
party hereto, and any such unauthorized assignment or transfer will be void..
Telecorp may subcontract any or all of the functions or Transition Services to
be performed by Telecorp under this Agreement to any reputable third party
vendor used by Telecorp to provide similar services in comparable markets,
provided that such third party vendor agrees in writing to perform such
Transition Services on the terms set forth herein.
7.5 APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of New York without giving effect to
the conflicts of law principles thereof. The parties hereto hereby irrevocably
and unconditionally consent to submit to the nonexclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the State of New York (the "NEW YORK COURTS") for any litigation arising out of
or relating to this Agreement, waive any objection to the laying of venue of any
such litigation in the New York Courts and agrees not to plead or claim in any
New York Court that such litigation brought therein has been brought in an
inconvenient forum.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures on
this Agreement shall be deemed to be original signatures for all purposes.
7.7 INTERPRETATION. The article and section headings contained in this
Agreement are for convenience of reference only, are not part of the agreement
of the parties and shall not affect in any way the meaning or interpretation of
this Agreement.
7.8 ENTIRE AGREEMENT. This Agreement, including the schedules and
tables hereto, embodies the entire agreement and understanding of the parties
hereto in respect of the transactions contemplated hereby.
7.9 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any court determines that any covenant or any part of any
covenant is invalid or unenforceable, such covenant shall be enforced to the
extent permitted by such court, and all other covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
7.10 FORCE MAJEURE. Neither party will have any liability for damages
or delay due to fire, explosion, lightning, pest damage, power failure or
surges, strikes or labor disputes, water or flood, acts of God, the elements,
war, civil disturbances, acts of civil or military authorities or the public
enemy, acts or omissions of communications or other carriers, or any other cause
beyond a party's reasonable control, whether or not similar to the foregoing.
7.11 REPRESENTATIVES. AT&T PCS hereby appoints Xxxxxx Xxxxxxx, and
Telecorp hereby appoints Xxxxxx X. Xxxxxxxx, as its representative to facilitate
communications and performance under this Agreement. Each party shall treat, and
shall be entitled to treat, an act of the representative of the other party as
being authorized by such other party without inquiring behind such act or
ascertaining whether such representative had authority to so act. Each party
shall have the right at any time and from time to time to replace its
representative by giving notice to the other party setting forth the name and
address information of the replacement.
7.12 WAIVERS. The failure of any party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.
7.13 SURVIVAL OF OBLIGATIONS. The obligations of the parties under
Articles III, V, VI and VII shall survive the termination of this Agreement.
7.14 TITLES AND HEADINGS. Titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
7.15 AUTHORITY. Each of the parties hereto represents to the other that
(a) it has the corporate power and authority to execute, deliver and perform
this Agreement, (b) the execution, delivery and performance of this Agreement by
it has been duly authorized by all necessary corporate or other action, (c) it
has duly and validly executed this Agreement, and (d) this Agreement is a legal,
valid and binding obligation, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
or other similar laws affecting creditor's rights generally and general equity
principles.
7.16 FURTHER ASSURANCES. Each of the parties hereto shall perform such
actions and shall deliver documents, records and other information necessary or
appropriate to effectuate, carry out and transition the Transition Services
hereunder.
IN WITNESS WHEREOF, both Telecorp and AT&T PCS have caused this
Agreement to be duly executed on its behalf by its duly authorized officer as of
the date first written above.
TELECORP PCS, INC.
By:
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Name:
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Title:
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AT&T WIRELESS PCS, INC.
By:
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Name:
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Title:
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Exhibit 2.1(b) - Transition Services
[To be provided]
Exhibit 3.1(b) - Cost Allocations
[To be provided]
