EXHIBIT 10.39
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Amended and Restated Interim Network Operating Agreement
This Amended and Restated Interim Network Operating Agreement (the
"Agreement") is made and entered into as of March 1, 2001, by SPRINT SPECTRUM
L.P., a Delaware limited partnership ("Sprint PCS"), and iPCS Wireless, Inc., a
Delaware corporation ("iPCS") and replaces in their entirety that certain
Interim Operating Agreement dated July 12, 2000 and those certain letter
agreements between Sprint PCS and iPCS dated October 23, 2000, February 5, 2001
and February 21, 2001.
RECITALS
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A. Sprint PCS and iPCS are parties to (i) a Management Agreement, dated
January 22, 1999, as amended to date (the "Management Agreement"), and (ii) an
Asset Purchase Agreement, dated as of July 12, 2000, for certain assets located
in Michigan and (iii) an Asset Purchase Agreement, dated as of January 10, 2001
for certain assets located in Iowa assets (together, the "Asset Purchase
Agreements") pursuant to which Sprint PCS has agreed to sell certain network
assets (the "Network Assets") to iPCS.
B. Both Sprint PCS and iPCS desire to set forth terms and conditions
regarding the maintenance and operations of the Network Assets.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement the parties hereto agree as follows:
1. Provision of Services for Sprint PCS Operational Sites. From the date
of this Agreement until all sites are transferred, Sprint PCS will operate and
maintain the Sprint PCS Operational Site Assets listed on Exhibit A. Services
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provided to iPCS will include all ongoing maintenance and operations activities.
2. Payment for Services. iPCS agrees to take and pay for all services
provided by Sprint PCS under this Agreement relating to the Sprint PCS
Operational Sites. Beginning on the date of this Agreement and on the 15th day
of each month thereafter until this Section of this agreement terminates, iPCS
agrees to pay Sprint PCS the aggregate amounts set forth on Exhibit B attached
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hereto and incorporated herein (the "Monthly Payment"). Payments for services
rendered by Sprint PCS for any partial months shall be prorated using the
following formula: (i) the Monthly Payment multiplied by (ii) the quotient of
(A) the number of days beginning with the 16th day of the month during which the
last Monthly Payment became due until the date this Agreement is terminated
divided by (B) 30.
3. Revenue Payments. During the Term of this Agreement, iPCS shall be
paid from Collected Revenues and Interservice Area Fees generated in the calling
service
area in which the Network Assets are located, as provided for and defined in the
Management Agreement.
4. Backhaul and Interconnection.
Michigan: iPCS will own and have in operation a switch capable of
switching traffic for the BTAs that are part of Manager's Service Area in
Michigan (the "Michigan BTAs") on or before July 1, 2001. In addition, on or
before July 14, 2001, iPCS will disconnect all of iPCS' circuits from the Sprint
PCS Detroit 1, Detroit 2, and Lansing switches. The Sprint PCS Detroit 1,
Detroit 2, and Lansing switches are collectively the "Sprint PCS Michigan
Switches."
For the period from the date of this Agreement until the earlier of
(a) such time as iPCS has its own switch available to handle such traffic in
Michigan or (b) July 14, 2001, iPCS will be responsible for all backhaul and
interconnection costs associated with the backhaul of all the Michigan BTA
traffic through the Sprint PCS Michigan Switches. Also, iPCS will be
responsible for all transition costs of converting existing connections from the
Sprint PCS Michigan Switches to iPCS switches, including any charges for
hardware, leased-lines, installation, etc.
Iowa: iPCS will own and have in operation a switch capable of
switching traffic for the BTAs that are part of Manager's Service Area in Cedar
Rapids and Iowa City (the "Iowa BTAs") on or before September 21, 2001. In
addition, on or before December 31, 2001, iPCS will disconnect all of iPCS'
circuits from the Sprint PCS Des Moines switch.
For the period from the date of this Agreement until the earlier of
(a) such time as iPCS has its own switch available to handle such traffic in
Iowa or (b) December 31, 2001, iPCS will be responsible for all backhaul and
interconnection costs associated with the backhaul of all the Iowa BTA traffic
through the Sprint PCS Des Moines switch. Also, iPCS will be responsible for
all transition costs of converting existing connections from the Sprint PCS Des
Moines switch to iPCS switches, including any charges for hardware, leased-
lines, installation, etc.
5. Switching Services.
Michigan: For utilization of the Sprint PCS Michigan Switches from the
date of this Agreement until the earlier of (a) the date on which iPCS has its
switch serving the Michigan BTAs in place and operational or (b) July 14, 2001,
iPCS will designate its Selected Services under Option 1, "Sprint PCS Provided."
From the date of this Agreement until July 14, 2001, iPCS agrees to pay Sprint
PCS a price equal to $0.022 per minute of use for iPCS' actual usage on the
Sprint PCS Michigan Switches for switching up to 82 cell sites off of all three
of the Sprint PCS Michigan Switches; if more than 82 cell sites are switched off
of the three Sprint PCS Switches, Sprint PCS may unilaterally increase the price
per minute. If iPCS requires switching services after July 14, 2001, Sprint PCS
may unilaterally increase the price per minute.
Iowa: For utilization of the Sprint PCS Des Moines switch from the
date of this Agreement until the earlier of (a) the date on which iPCS has its
switch serving the Iowa BTAs in place and operational or (b) December 31, 2001,
iPCS will designate its Selected Services under Option 1, "Sprint PCS Provided."
From the date of this Agreement until October 31, 2001 iPCS agrees to pay Sprint
PCS a price equal to $0.023 per minute of use for iPCS' actual usage on the
Sprint PCS Des Moines switch for switching up to a maximum of 22 cell sites off
of the Sprint PCS Des Moines switch. If iPCS requires switching services after
October 31, 2001, Sprint PCS may unilaterally increase the price per minute.
6. Term. This Agreement is effective upon execution by both parties and
shall continue in effect until December 31, 2001. Portions of this agreement may
be terminated by letter agreement by the parties.
7. Indemnification. Breaches of this Agreement by either iPCS or Sprint
PCS will be a breach for which the non-breaching party is entitled to
indemnification in accordance with the terms and conditions and utilizing the
procedures set forth in the Management Agreement.
8. Entire Agreement and Binding Effect. This Agreement and the exhibits
and schedules attached to this Agreement (which are incorporated by this
reference) and the Management Agreement, including all addenda thereto, contain
the entire agreement between the parties hereto with respect to the acquisition
of the Assets and the other transactions contemplated herein, and supersedes all
prior agreements or understandings between the parties hereto relating to the
subject matter hereof. All exhibits attached hereto are incorporated herein by
this reference.
9. Severability. In the event any one or more of the provisions contained
in this Agreement or any application thereof is invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement and any other application thereof will
not in any way be affected or impaired thereby. Paragraph headings herein or in
any exhibit hereto have no legal significance and are used solely for
convenience of reference.
10. Waivers and Notices. Any term or condition of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a written
instrument. No delay or failure on the part of any party in exercising any
rights hereunder, and no partial or single exercise thereof, will constitute a
waiver of such rights or of any other rights hereunder. All notices, consents,
requests, instructions, approvals and other communications provided for herein
will be validly given, made or served if given, made or served in accordance
with the Management Agreement.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will constitute an original but all of such
counterparts taken together will constitute only one Agreement.
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12. Governing Law. The internal laws of the State of Missouri (without
regard to principles of conflicts of law) govern the validity of this agreement,
the construction of its terms, and the interpretation of the rights and duties
of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT PCS: SPRINT SPECTRUM L.P.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President Affiliations
IPCS: IPCS WIRELESS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and CEO
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Exhibit A
[9 operating sites listed by Cascade Number on inventory list.]
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Exhibit B
Monthly Operational Payment Amount
(Pricing Schedule per site attached)
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