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EXHIBIT 10.19
OVERHEAD
SERVICES AGREEMENT
This is the Overhead Services Agreement (the "Agreement") dated March
3, 1997, between Nextel Communications, Inc., a Delaware corporation (the
"Parent"), and XxXxx International, Ltd., a Washington corporation (the
"Subsidiary").
In consideration of the mutual covenants and agreements of the
parties, the parties agree as follows:
1. SERVICES TO BE PROVIDED.
1.1 Parent shall provide the services set forth on Exhibit A to
Subsidiary. With the written consent of Parent, Subsidiary may elect to
discontinue a service or services provided by Parent and/or obtain any service
listed on Exhibit A from an independent third party.
1.2 The fee for any service provided by Parent hereunder for any
fiscal year shall be the actual cost incurred by Parent for the service
provided to Subsidiary.
1.3 Parent undertakes to provide the services required hereunder
with the same degree of care and diligence, and using the same procedures and
policies, that it uses in providing services for its own operation and for its
other subsidiaries.
2. PAYMENT OF COMPENSATION.
2.1 Parent shall apportion the aggregate cost incurred by Parent
to provide each service listed on Exhibit A among its subsidiaries (including
the Subsidiary) on the basis that Parent determines in good faith, from time to
time, represents the relative portion of the services provided by Parent and
used by each such subsidiary (including the Subsidiary) for the relevant
period. Subsidiary shall have the right to review Parent's determination and
to discuss with Parent adjustments that Subsidiary considers appropriate in
light of the services provided to Subsidiary. Parent's good faith and
determination after such consultation shall be final and binding on such
Subsidiary.
2.2 Nextel will charge such Subsidiary monthly and amounts due
shall be paid in not less than 45 days.
3. TERM OF AGREEMENT AND TERMINATION.
3.1 TERM. This Agreement shall be effective as of its date and
shall remain effective until March 3, 2007.
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3.2 FORCE MAJEURE. No party shall be liable in any manner for
failure or delay in performance of all or any part of this Agreement, directly
or indirectly, owing to acts or God, governmental orders or restrictions,
strikes or other labor disturbances, riots, embargoes, revolutions, wars,
sabotage, fire, floods, or any other cause or circumstance or a combination
thereof beyond the control of the parties. The party suffering any such delay
or failure shall give prompt notice to the other party responsible to perform
and shall exert best efforts to remove the causes or circumstances of
non-performance as promptly as practicable.
3.3 ACCRUED PAYMENT. Termination of this Agreement shall not
affect the right of Parent to any sums accrued prior to the date of
termination.
4. GENERAL PROVISIONS.
4.1 OTHER SERVICES. Nothing in this Agreement shall restrict the
Parent from undertaking to provide additional services to Subsidiary not
described in this Agreement on terms and conditions satisfactory to the Parent
and Subsidiary.
4.2 CONFLICTS OF INTEREST. Subsidiary acknowledges that the legal
counsel employed by Parent as part-time or full-time employees will provide
legal services to Parent as well as to a variety of subsidiaries of Parent and
potentially to other entities in which Parent holds an ownership interest.
Subsidiary agrees that such legal counsel may represent Subsidiary as well as
Parent or any other such subsidiary or other entity. In situations in which
the interests of Subsidiary and Parent are adverse to each other, Subsidiary
agrees that it shall make no attempt to disqualify or prohibit such legal
counsel from representing Subsidiary solely because of such legal counsel's
prior or present representation of Parent.
4.3 COUNTERPARTS. This Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all counterparts shall together constitute but one and the
same document.
4.4 GOVERNING LAW. This Agreement shall in all respects be
governed by, and construed in accordance with, the internal laws of the State
of Delaware, applicable to Agreements made and to be performed within that
state, without regard to the conflicts of laws and principals of that state.
4.5 ASSIGNMENT. Subsidiary may not assign its rights or
obligations under this Agreement without the prior written consent of Parent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
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NEXTEL COMMUNICATIONS
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
XxXXX INTERNATIONAL, LTD.
By: /s/ XXXXX ROSTOV
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Name:
Title:
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EXHIBIT A
SERVICES
1. Accounts Payable Services
2. Investing, Cash Management, and Banking Services
3. Information Technology Services
4. Personnel, Payroll, Human Resources and Employee Benefits Services
5. Taxes, General Accounting, Finance Reporting and Audit Services
6. Legal Services
7. Procurement Services
8. Real Estate Services
9. Financial and Strategic Planning Services
10. Insurance and Risk Management Services
11. Marketing and Sales Services
12. Billing and Customer Support Services
13. Engineering and Technical Services
14. Executive Support Services
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March 6, 1997
XxXxx International, Ltd.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Re: Motorola International Financing
Dear Sirs:
We refer to that certain Memorandum of Understanding entered
into on or about November 12, 1996 (the "Memorandum of Understanding")
captioned "MOTOROLA VENDOR FINANCING TEMPLATE", by and between XxXxx
International, Ltd. ("MIL") and Motorola, Inc. ("Motorola"), acknowledged and
agreed to by Nextel Communications, Inc. ("Nextel"). Such Memorandum of
Understanding, together with all attachments thereto and any and all term
sheets or definitive agreements entered into to establish or reflect the terms
and conditions of any credit available or indebtedness outstanding thereunder
(being referred to collectively as the "Motorola International Financing
Documents"). On the date hereof, the existing Motorola International Financing
Documents contemplate that the worldwide amount of vendor equipment financing
provided by Motorola (i) to Nextel and certain of its subsidiaries that are
"Restricted Companies" (Nextel and such subsidiaries collectively, the "U.S.
Borrowers") under the U.S. Vendor Agreement (as defined in the Memorandum of
Understanding) and (ii) to MIL and certain of its designated affiliates (MIL
and such affiliates collectively, the "MIL Group") under the Motorola
International Financing Documents will be subject to a maximum aggregate limit
of $400 million.
We hereby state our mutual understanding and agreement as
follows:
(1) Nextel commits that none of the U.S. Borrowers will borrow
amounts under the U.S. Vendor Facility if, at the time of and
giving effect to such borrowing and all other amounts then
outstanding under the U.S. Vendor Facility, either (a)
amounts borrowed from Motorola thereunder would exceed $400
million or (b) as a result of such borrowing, the total of
all amounts outstanding or then
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remaining available to the MIL Group under the Motorola
International Financing Documents would be less than $95
million; and
(2) MIL commits that no member of the MIL Group will, without the
prior written consent of the Chief Financial Officer of
Nextel, (a) borrow amounts under the Motorola International
Financing Documents if, at the time of and giving effect to
such borrowing and all other amounts then outstanding
thereunder and all other amounts borrowed from Motorola and
then outstanding under the U.S. Vendor Facility, the total of
all amounts so borrowed from Motorola by members of the MIL
Group and by the U.S. Borrowers, as appropriate, would exceed
$400 million or (b) change, or consent to any change, in the
$400 million aggregate worldwide outstandings limit set forth
in the Memorandum of Understanding.
MIL and Nextel each understand and acknowledge that
borrowings and access to funds under the U.S. Vendor Facility and under the
Motorola International Financing Documents will be subject to the applicable
terms and conditions set forth in those documents, and MIL specifically
understands and agrees that, except as expressly set forth above, Nextel has no
obligation, express or implied, to act or refrain from acting to assure
satisfaction of any of the conditions to borrowing under any of the Motorola
International Financing Documents or otherwise to assure that any member of the
MIL Group will have or retain access any amount of financing thereunder.
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If the above accurately states our mutual understandings and
agreements on these topics, please so indicate by signing and returning the
enclosed duplicate copy of this letter to the undersigned.
Very truly yours,
NEXTEL COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Vice President
XxXXX INTERNATIONAL, LTD.
By: /s/ HENG-PIN KIANG
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Name: Heng-Pin Kiang
Title: Sr Vice President
