Exhibit 10.50
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SPRINT TRADEMARK
AND SERVICE XXXX
LICENSE AGREEMENT
BETWEEN
SPRINT COMMUNICATIONS COMPANY, L.P.
AND
SOUTHWEST PCS, L.P
DATED AS OF JULY 10, 1998
SPRINT PCS SERVICES AGREEMENT
This SERVICES AGREEMENT is made July 10, 1998, by and between Sprint
Spectrum L.P., a Delaware limited partnership ("Sprint Spectrum"), Southwest
PCS, L.P., an Oklahoma limited partnership, and (but not any Related Party)
("Manager"). The definitions for this agreement are set forth on the "Schedule
of Definitions".
RECITALS
A. Manager and the holder of the License ("Sprint PCS") are
entering into a Management Agreement contemporaneously with the execution
of this agreement, under which Manager will design, construct, operate,
manage and maintain a wireless services network in the Service Area in
accordance with Sprint PCS standards and will offer and promote Sprint PCS
Products and Services that operate on the Sprint PCS Network.
B. Manager desires to enter into this agreement with Sprint
Spectrum, under which Sprint Spectrum may furnish certain services to
Manager to assist Manager to build out, operate, manage and maintain the
Service Area Network under the License.
AGREEMENT
In consideration of the recitals and mutual covenants and
agreements contained in this agreement, the sufficiency of which are hereby
acknowledged, the parties, intending to be bound, agree as follows:
1. ENGAGEMENT OF SPRINT SPECTRUM
1.1 Engagement of Sprint Spectrum. Manager engages Sprint Spectrum
to assist Manager with certain specified services in connection with the
operations of Manager and in building out, operating, managing and
maintaining the Service Area Network, subject to the terms and conditions
of this agreement. Sprint Spectrum accepts the engagement and will use the
same effort and demonstrate the same care in performing its obligations
under this agreement as it uses in conducting its own business. Manager
will use the efforts and demonstrate the care necessary for Sprint Spectrum
to meet its obligations under this agreement. When providing the Selected
Services, Sprint Spectrum will provide those services to Manager in the
same manner it provides those services to its own business, including the
use of third party vendors to provide certain Selected Services.
1.2 Reliance on Manager. Manager understands that Sprint Spectrum's
ability to provide the Selected Services will depend largely on Manager's
compliance with the Sprint PCS Program Requirements under the Management
Agreement and cooperation with Sprint Spectrum. Manager agrees to comply
with such requirements and to cooperate with Sprint Spectrum to enable
Sprint Spectrum to perform its obligations under this agreement.
1.3 Non-exclusive Service. Nothing contained in this agreement
confers upon Manager an exclusive right to any of the Available Services.
Sprint Spectrum may contract with others to provide expertise and services
identical or similar to those to be made available or provided to Manager
under this agreement.
1.4 Manager's Use of Services. Manager agrees it will only use the
Selected Services in connection with its Service Area Network. Manager will
not use the Selected Services in connection with any other business or outside
the Service Area.
2. SERVICES
2.1 Available Services; Selected Services.
2.1.1 Available Services. Subject to the terms of this
agreement, Manager may obtain any of the Available Services from Sprint
Spectrum in accordance with the provisions of this Section 2.1. The
Available Services offered from time to time and the fees charged for such
Available Services will be set forth on the then-current Exhibit 2.1.1 (the
"Available Services and Fees Schedule"). If Sprint Spectrum offers any new
Available Service, it will deliver a new Exhibit 2.1.1 indicating the new
service and the fee for the new service.
Manager may select one or more of the categories of Available
Services. If Manager selects a particular category of services it must take
and pay for all of the services under the category selected; Manager may
not select only particular services within that category.
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If Sprint Spectrum determines to no longer offer an Available
Service and the service is not a Selected Service, then Sprint Spectrum may
give Manager written notice at any time during the term of this agreement
that Sprint Spectrum no longer offers the Available Service.
Sprint Spectrum may modify Exhibit 2.1.1 from time to time.
Exhibit 2.1.1 will be deemed amended upon delivery of the new Exhibit 2.1.1
to Manager.
2.1.2 Selected Services. During the term of this agreement, and
subject to the terms of this agreement, Manager has selected, and Sprint
Spectrum has agreed to furnish or cause to be furnished to Manager, the
Available Services listed on Exhibit 2.1.2 (which listed services will be
the Selected Services). Sprint Spectrum may require from time to time that
certain Available Services be Selected Services where necessary to comply
with legal or regulatory requirements (e.g., mandatory provision of
emergency 911 service) or applicable operating constraints (e.g., delivery
of merchandise to the regional distribution centers of national retail
distributors).
2.1.3 Changes to Selected Services. If Manager determines it no
longer requires a Selected Service, then Manager must give Sprint Spectrum
written notice at least 3 months prior to the date on which Manager wishes
to discontinue its use of such Selected Service.
If Sprint Spectrum determines to no longer offer an Available
Service and such service is one of Manager's Selected Services, then Sprint
Spectrum must give Manager written notice at least 9 months prior to its
discontinuance of such Available Service that Sprint Spectrum will no
longer offer such Available Service. If the Available Service to be
discontinued is required by Sprint Spectrum to be a Selected Service, then
Sprint Spectrum will use commercially reasonable efforts to (a) help
Manager provide the service itself or find another vendor to provide the
service, and (b) facilitate Manager's transition to the new service
provider.
2.1.4 Performance of Selected Services. Sprint Spectrum may
select the method, location and means of providing the Selected Services.
If Sprint Spectrum wishes to use Manager's facilities to provide the
Selected Services, Sprint Spectrum must obtain Manager's prior written
consent.
2.2 Third Party Vendors. Some of the Available Services might be
provided by third party vendors under arrangements between Sprint Spectrum
and the third party vendors. In some instances, Manager may receive
Available Services from a third party vendor under the same terms and
conditions that Sprint Spectrum receives such services. In other instances,
Manager may receive Available Services under the terms and conditions set
forth in an agreement between Manager and the third party vendor. If
Manager wishes to engage a third party vendor to provide Available
Services, Selected Services, or Available Services that Sprint Spectrum
will no longer offer, Manager must first obtain Sprint Spectrum's prior
written consent, which consent will not be unreasonably withheld. Before
Manager may obtain from the third party vendor any Available Services,
Selected Services, or Available Services that Sprint Spectrum will no
longer offer, such vendor must execute an agreement prepared by Sprint
Spectrum that obligates the vendor to maintain the confidentiality of any
proprietary information and that prohibits the vendor from using any
proprietary technology, information or methods for its benefit or the
benefit of any other person or entity. Manager's use of a third party
vendor that is not providing Available Services to Manager on behalf of
Sprint PCS under the Management Agreement will not qualify for assumed
compliance with the Program Requirements under Sections 7.1(a)(ii) or
8.1(b) of the Management Agreement.
2.3 Contracts. Manager will notify Sprint Spectrum of any contract
or other arrangement Manager has with any other party that will affect how
Sprint Spectrum is to provide the Selected Services.
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3. FEES FOR SELECTED SERVICES
3.1 Payment of Fees. Sprint Spectrum and Manager agree that the
fees for the Available Services will initially be those set forth on
Exhibit 2.1.1, which fees represent an adjustment to any fees paid by
Sprint PCS to Manager under Section 10 of the Management Agreement. The
monthly charge for any fees based on the number of subscribers of the
Service Area Network will be determined based on the number of subscribers
as of the 15th day of the month for which the charge is being calculated.
Manager agrees to pay the fees to Sprint Spectrum within 20 days after the
date of the invoice. If Manager enters into an agreement with a third party
vendor under Section 2.2, Manager agrees to pay the fees for the services
rendered by the third party vendor in accordance with the terms and
conditions of such agreement.
3.2 Adjustment of Fees. Sprint Spectrum may change the fee for any
service it provides once during any 12-month period by delivering a new
Exhibit 2.1.1 to Manager. Exhibit 2.1.1 will be deemed amended on the
effective date noted on the new Exhibit 2.1.1, which will be at least 30
days after delivering the new Exhibit 2.1.1. Manager must notify Sprint
Spectrum in writing before the effective date of the new Exhibit 2.1.1 if
Manager wishes to discontinue a Selected Service for which the price is
being increased (a "Cancelled Service"). If Manager discontinues a Selected
Service under this Section 3.2, Sprint Spectrum will, at Manager's option,
continue to provide the Cancelled Service and to charge Manager the current
fee (i.e., the fee under the Exhibit 2.1.1 in effect on the date Manager
gives its cancellation notice to Sprint Spectrum) for the Cancelled Service
for up to 9 months from the date Sprint Spectrum gives Manager notice of
the price change or until Manager no longer needs the Cancelled Service,
whichever occurs first. If Sprint Spectrum continues to provide the
Cancelled Service after the 9-month period, Sprint Spectrum will apply the
new fee, under the new Exhibit 2.1.1, and such fee will be applied
retroactively as of the effective date of the new schedule. Manager agrees
to pay such retroactive charge within 10 days after the date of the invoice
for such charge.
3.3 Late Payments. Any payment due under this Section 3 that is not
paid by Manager to Sprint Spectrum in accordance with the terms of this
agreement will bear interest at the Default Rate beginning (and including)
the 6th day after the due date until (and including) the date on which such
payment is made.
4. TERM; TERMINATION; EFFECT OF TERMINATION
4.1 Term. This agreement commences on the date of execution and
continues until the Management Agreement terminates. This agreement
automatically terminates upon termination of the Management Agreement.
Neither party may terminate this agreement for any reason other than the
termination of the Management Agreement.
4.2 Effect of Termination. Upon the termination of this agreement,
all rights and obligations of each party under this agreement will
immediately cease, except that:
(a) Any rights arising out of a breach of any terms of this
agreement will survive any termination of this agreement;
(b) The provisions of this Section 4.2 and Sections 5.2, 6, 7, and
9 will survive any termination of this agreement; and
(c) The payment obligations under Section 3 will survive any
termination of this agreement if, and to the extent, any fees have
accrued or are otherwise due and owing from Manager to Sprint Spectrum
or any Sprint Spectrum Related Party as of the date of termination of
this agreement.
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION
5.1 Books and Records.
5.1.1 General. Each party must keep and maintain books and
records to support and document any fees, costs, expenses or other charges
due in connection with the provisions set forth in this agreement. The
records must be retained for a period of at least 3 years after the fees,
costs, expenses or other charges to which the records relate have accrued
and have been paid, or such other period as may be required by law.
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5.1.2 Audit. On reasonable advance written notice by the
Manager, but no more frequently than annually, Sprint PCS will provide a
report issued in conformity with Statement of Auditing Standard No. 70
"Reports on the Processing of Transactions by Service Organizations" ("Type
II Report" or "Manager Management Report"). Such report will be prepared by
independent auditors and will provide an opinion on the controls placed in
operation and tests of operating effectiveness of those controls in effect
at Sprint PCS over the Manager Management Processes. "Manager Management
Processes" include those services generally provided within the Management
Agreement, primarily billing and collection of Collected Revenues. The
Manager is responsible for costs incurred attributable to such requested
procedures with respect to the services provided under this agreement,
including without limitation discussion of the billing and collection of
Collected Revenues. This report will be made available to the other party
upon such other party's request.
5.1.3 Contesting an Audit. If the party that did not
select the independent auditor does not agree with the findings of the
audit, then such party can contest the findings by providing notice of such
disagreement to the other party (the "Dispute Notice"). The date of
delivery of such notice is the "Dispute Notice Date." If the parties are
unable to resolve the disagreement within 10 Business Days after the
Dispute Notice Date, they will resolve the disagreement in accordance with
the following procedures.
The two parties and the auditor that conducted the audit will
all agree on an independent certified public accountant with a regional or
national accounting practice in the wireless telecommunications industry
(the "Arbiter") within 15 Business Days after the Dispute Notice Date. If,
within 15 Business Days after the Dispute Notice Date, the three parties
fail to agree on the Arbiter, then at the request of either party to this
agreement, the Arbiter will be selected pursuant to the rules then in
effect of the American Arbitration Association. Each party will submit to
the Arbiter within 5 Business Days after its selection and engagement all
information reasonably requested by the Arbiter to enable the Arbiter to
independently resolve the issue that is the subject of the Dispute Notice.
The Arbiter will make its own determination of the amount of fees, costs,
expenses or other charges payable under this agreement with respect to the
period audited. The Arbiter will issue a written report of its
determination in reasonable detail and will deliver a copy of the report to
the parties within 10 Business Days after the Arbiter receives all of the
information reasonably requested. The determination made by the Arbiter
will be final and binding and may be enforced by any court having
jurisdiction. The parties will cooperate fully in assisting the Arbiter and
will take such actions as are necessary to expedite the completion of and
to cause the Arbiter to expedite its assignment.
If the amount owed by a contesting party is reduced by more
than 10% or the amount owed to a contesting party is increased by more than
10% then the non-contesting party will pay the costs and expenses of the
Arbiter, otherwise the contesting party will pay the costs and expenses of
the Arbiter.
5.2 Confidential Information.
(a) Except as specifically authorized by this agreement, each
of the parties must, for the term of this agreement and 3 years after the
date of termination of this agreement, keep confidential, not disclose to
others and use only for the purposes authorized in this agreement, all
Confidential Information disclosed by the other party to the party in
connection with this agreement, except that the foregoing obligation will
not apply to the extent that any Confidential Information:
(i) is or becomes, after disclosure to a party, publicly known
by any means other than through unauthorized acts or omissions of the
party or its agents; or
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(ii) is disclosed in good faith to a party by a third party
entitled to make the disclosure.
(b) Notwithstanding the foregoing, a party may use, disclose or
authorize the disclosure of Confidential Information that it receives that:
(i) has been published or is in the public domain, or that
subsequently comes into the public domain, through no fault of the
receiving party;
(ii) prior to the effective date of this agreement was properly
within the legitimate possession of the receiving party, or subsequent
to the effective date of this agreement, is lawfully received from a
third party having rights to publicly disseminate the Confidential
Information without any restriction and without notice to the recipient
of any restriction against its further disclosure;
(iii) is independently developed by the receiving party through
persons or entities who have not had, either directly or indirectly,
access to or knowledge of the Confidential Information;
(iv) is disclosed to a third party consistent with the terms of
the written approval of the party originally disclosing the
information;
(v) is required by the receiving party to be produced under
order of a court of competent jurisdiction or other similar
requirements of a governmental agency, and the Confidential Information
will otherwise continue to be Confidential Information required to be
held confidential for purposes of this agreement;
(vi) is required by the receiving party to be disclosed by
applicable law or a stock exchange or association on which the
receiving party's securities (or those of its Related Parties) are or
may become listed; or
(vii) is disclosed by the receiving party to a financial
institution or accredited investor (as that term is defined in Rule
501(a) under the Securities Act of 1933) that is considering providing
financing to the receiving party and which financial institution or
accredited investor has agreed to keep the Confidential Information
confidential in accordance with an agreement at least as restrictive as
this Section 5.
(c) The party making a disclosure under Sections 5.2(b)(v),
5.2(b)(vi) or 5.2(b)(vii) must inform the non-disclosing party as promptly
as is reasonably necessary to enable the non-disclosing party to take
action to, and use the disclosing party's reasonable best efforts to, limit
the disclosure and maintain confidentiality to the extent practicable.
(d) Manager will not, except when serving in the capacity of
Manager under this agreement, use any Confidential Information of any kind
that it receives under or in connection with this agreement. For example,
if Manager operates a wireless company in a different licensed area,
Manager may not use any of the Confidential Information received under or
in connection with this agreement in operating its other wireless business.
6. INDEMNIFICATION
6.1 Indemnification by Sprint Spectrum. Sprint Spectrum agrees to
indemnify, defend and hold harmless Manager, its directors, managers,
officers and employees from and against any and all claims, demands, causes
of action, losses, actions, damages, liability and expense, including costs
and reasonable attorneys' fees, against Manager, its directors, managers,
officers and employees arising from or relating to the violation by Sprint
Spectrum, its directors, officers, employees, contractors, subcontractors,
agents or representatives of any law, regulation or ordinance applicable to
Sprint Spectrum in its performance of the Selected Services, or by Sprint
Spectrum's, or its directors', officers', employees', contractors',
subcontractors', agents' or representatives' breach of any representation,
warranty or covenant contained in this agreement, except where and to the
extent the claim, demand, cause of action, loss, action, damage, liability
and expense results from the negligence or willful misconduct of Manager,
its directors, managers, officers, employees, agents or representatives.
Sprint Spectrum's indemnification obligations under this Section 6.1 do not
apply to any third party vendors that provide services (including Selected
Services) directly to Manager or Manager's Related Parties under a separate
agreement.
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6.2 Indemnification by Manager. Manager agrees to indemnify, defend
and hold harmless Sprint Spectrum, its directors, officers and employees
from and against any and all claims, demands, causes of action, losses,
actions, damages, liability and expense, including costs and reasonable
attorneys' fees, against Sprint Spectrum, its directors, officers and
employees arising from or relating to Manager's, or its directors',
managers', officers', employees', contractors', subcontractors', agents' or
representatives' violation of any law, regulation or ordinance applicable
to Manager, or by Manager's, or its directors', managers', officers',
employees', contractors', subcontractors', agents' or representatives'
breach of any representation, warranty or covenant contained in this
agreement, Manager's ownership of the Operating Assets or the operation of
the Service Area Network, except where and to the extent the claim, demand,
cause of action, loss, action, damage, liability and expense results from
the negligence or willful misconduct of Sprint Spectrum, its directors,
officers, employees, contractors, subcontractors, agents or
representatives.
6.3 Procedure.
6.3.1 Notice. Any party being indemnified ("Indemnitee") will
give the party making the indemnification ("Indemnitor") written notice as
soon as practicable but no later than 5 Business Days after the party
becomes aware of the facts, conditions or events that give rise to the
claim for indemnification if:
(1) any claim or demand is made or liability is asserted
against Indemnitee; or
(2) any suit, action, or administrative or legal proceeding is
instituted or commenced in which Indemnitee is involved or is named as
a defendant either individually or with others.
Failure to give notice as described in this Section 6.3.1 does
not modify the indemnification obligations of this provision, except if
Indemnitor is harmed by failure to provide timely notice to Indemnitor,
then Indemnitor does not have to indemnify Indemnitee for the harm caused
by the failure to give the timely notice.
6.3.2 Defense by Indemnitor. If within 30 days after giving
notice Indemnitee receives written notice from Indemnitor stating that
Indemnitor disputes or intends to defend against the claim, demand,
liability, suit, action or proceeding, then Indemnitor will have the right
to select counsel of its choice and to dispute or defend against the claim,
demand, liability, suit, action or proceeding, at its expense.
Indemnitee will fully cooperate with Indemnitor in the dispute
or defense so long as Indemnitor is conducting the dispute or defense
diligently and in good faith. Indemnitor is not permitted to settle the
dispute or claim without the prior written approval of Indemnitee, which
approval will not be unreasonably withheld. Even though Indemnitor selects
counsel of its choice, Indemnitee has the right to retain additional
representation by counsel of its choice to participate in the defense at
Indemnitee's sole cost and expense.
6.3.3 Defense by Indemnitee. If no notice of intent to dispute
or defend is received by Indemnitee within the 30-day period, or if a
diligent and good faith defense is not being or ceases to be conducted,
Indemnitee has the right to dispute and defend against the claim, demand or
other liability at the sole cost and expense of Indemnitor and to settle
the claim, demand or other liability, and in either event to be indemnified
as provided in this Section 6. Indemnitee is not permitted to settle the
dispute or claim without the prior written approval of Indemnitor, which
approval will not be unreasonably withheld.
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6.3.4 Costs. Indemnitor's indemnity obligation includes
reasonable attorneys' fees, investigation costs, and all other reasonable
costs and expenses incurred by Indemnitee from the first notice that any
claim or demand has been made or may be made, and is not limited in any way
by any limitation on the amount or type of damages, compensation, or
benefits payable under applicable workers' compensation acts, disability
benefit acts, or other employee benefit acts.
7. DISPUTE RESOLUTION
7.1 Negotiation. The parties will attempt in good faith to resolve
any dispute arising out of or relating to this agreement promptly by
negotiation between or among representatives who have authority to settle
the controversy. Either party may escalate any dispute not resolved in the
normal course of business to the appropriate (as determined by the party)
officers of the parties by providing written notice to the other party.
Within 10 Business Days after delivery of the notice, the
appropriate officers of each party will meet at a mutually acceptable time
and place, and thereafter as often as they deem reasonably necessary, to
exchange relevant information and to attempt to resolve the dispute.
Either party may elect, by giving written notice to the other
party, to escalate any dispute arising out of or relating to the
determination of fees that is not resolved in the normal course of business
or by the audit process set forth in Sections 5.1.2 and 5.1.3, first to the
appropriate financial or accounting officers to be designated by each
party. The designated officers will meet in the manner described in the
preceding paragraph. If the matter has not been resolved by the designated
officers within 30 days after the notifying party's notice, either party
may elect to escalate the dispute to the appropriate (as determined by the
party) officers in accordance with the prior paragraphs of this Section
7.1.
7.2 Unable to Resolve. If a dispute has not been resolved within 60
days after the notifying party's notice, the parties will continue to
operate under this agreement and xxx the other party for damages or seek
other appropriate remedies as provided in this agreement, except neither
party may bring a suit for damages based on an event that occurs during the
first two years of this agreement.
7.3 Attorneys and Intent. If an officer intends to be accompanied
at a meeting by an attorney, the other party's officer will be given at
least 3 Business Days prior notice of the intention and may also be
accompanied by an attorney. All negotiations under this Section 7 are
confidential and will be treated as compromise and settlement negotiations
for purposes of the Federal Rules of Civil Procedure and state rules of
evidence and civil procedure.
8. REPRESENTATIONS AND WARRANTIES
Each party for itself makes the following representations and
warranties to the other party:
8.1 Due Incorporation or Formation; Authorization of Agreements.
The party is either a corporation, limited liability company, or limited
partnership duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. Manager is qualified to do
business and in good standing in every jurisdiction in which the Service
Area is located. The party has the full power and authority to execute and
deliver this agreement and to perform its obligations under this agreement.
8.2 Valid and Binding Obligation. This agreement constitutes the
valid and binding obligation of the party, enforceable in accordance with
its terms, except as may be limited by principles of equity or by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally.
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8.3 No Conflict; No Default. Neither the execution, delivery and
performance of this agreement nor the consummation by the party of the
transactions contemplated in this agreement will conflict with, violate or
result in a breach of (a) any law, regulation, order, writ, injunction,
decree, determination or award of any governmental authority or any
arbitrator, applicable to such party, or (b) any term, condition or
provision of the articles of incorporation, certificate of limited
partnership, certificate of organization, bylaws, partnership agreement or
limited liability company agreement (or other governing documents) of such
party or of any material agreement or instrument to which such party is or
may be bound or to which any of its material properties or assets is
subject.
8.4 Litigation. No action, suit, proceeding or investigation is
pending or, to the knowledge of the party, threatened against or affecting
the party or any of its properties, assets or businesses in any court or
before or by any governmental agency that could, if adversely determined,
reasonably be expected to have a material adverse effect on the party's
ability to perform its obligations under this agreement. The party has not
received any currently effective notice of any default that could
reasonably be expected to result in a breach of the preceding sentence.
9. GENERAL PROVISIONS
9.1 Notices. Any notice, payment, demand, or communication required
or permitted to be given by any provision of this agreement must be in
writing and mailed (certified or registered mail, postage prepaid, return
receipt requested), sent by hand or overnight courier, or sent by facsimile
(with acknowledgment received and a copy sent by overnight courier),
charges prepaid and addressed described on the Notice Address Schedule
attached to the Master Signature Page, or to any other address or number as
the person or entity may from time to time specify by written notice to the
other parties.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given
when received.
9.2 Construction. This agreement will be construed simply according
to its fair meaning and not strictly for or against either party.
9.3 Headings. The table of contents, section and other headings
contained in this agreement are for reference purposes only and are not
intended to describe, interpret, define, limit or expand the scope, extent
or intent of this agreement.
9.4 Further Action. Each party agrees to perform all further acts
and execute, acknowledge, and deliver any documents that may be reasonably
necessary, appropriate, or desirable to carry out the intent and purposes
of this agreement.
9.5 Specific Performance. Each party agrees with the other party
that the party would be irreparably damaged if any of the provisions of
this agreement were not performed in accordance with their specific terms
and that monetary damages alone would not provide an adequate remedy.
Accordingly, in addition to any other remedy to which the non-breaching
party may be entitled, at law or in equity, the non-breaching party will be
entitled to injunctive relief to prevent breaches of this agreement and
specifically to enforce the terms and provisions of this agreement.
9.6 Entire Agreement; Amendments. The provisions of this agreement
and the Management Agreement (if Sprint Spectrum is a party to that
agreement) (including the exhibits to those agreements) set forth the
entire agreement and understanding between the parties as to the subject
matter of this agreement and supersede all prior agreements, oral or
written, and other communications between the parties relating to the
subject matter of this agreement. Except for Sprint Spectrum's right to
amend the Available Services and the fees charged for such services as
shown on Exhibit 2.1.1, and Manager's right to amend the Selected Services
listed on Exhibit 2.1.2, this agreement may be modified or amended only by
a written amendment signed by persons or entities authorized to bind each
party.
9.7 Limitation on Rights of Others. Nothing in this agreement,
whether express or implied, will be construed to give any person or entity
other than the parties any legal or equitable right, remedy or claim under
or in respect of this agreement.
9.8 Waivers; Remedies. The observance of any term of this agreement
may be waived (whether generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce the term,
but any waiver is effective only if in a writing signed by the party
against which the waiver is to be asserted. Except as otherwise provided in
this agreement, no failure or delay of either party in exercising any power
or right under this agreement will operate as a waiver of the power or
right, nor will any single or partial exercise of any right or power
preclude any other or further exercise of the right or power or the
exercise of any other right or power.
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Sprint Spectrum is not in breach of any covenant in this agreement,
if the occurence of the event or Sprint Spectrum's non-compliance with the
covenant results primarily from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the ability to comply with the
covenant;
(ii) the failure of any governmental authority to grant any
consent, approval, waiver, or authorization or any delay on the part of
any governmental authority in granting any consent, approval, waiver or
authorization;
(iii) the failure of any vendor to deliver in a timely manner
any equipment or service; or
(iv) any act of God, act of war or insurrection, riot, fire,
accident, explosion, labor unrest, strike, civil unrest, work stoppage,
condemnation or any similar cause or event not reasonably within the
control of Sprint Spectrum.
9.9 Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
9.10 Binding Effect. Except as otherwise provided in this
agreement, this agreement is binding upon and inures to the benefit of the
parties and their respective and permitted successors, transferees, and
assigns, including any permitted successor, transferee or assignee of the
Management Agreement. The parties intend that this agreement bind only the
party signing this agreement and that the agreement is not binding on the
Related Parties of a party unless the agreement provides that Related
Parties are bound.
9.11 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.
9.12 Severability. The parties intend every provision of this
agreement to be severable. If any provision of this agreement is held to be
illegal, invalid, or unenforceable for any reason, the parties intend that
a court enforce the provision to the maximum extent permissible so as to
effect the intent of the parties (including the enforcement of the
remaining provisions). If necessary to effect the intent of the parties,
the parties will negotiate in good faith to amend this agreement to replace
the unenforceable provision with an enforceable provision that reflects the
original intent of the parties.
9.13 Limitation of Liability. NO PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR
PUNITIVE DAMAGES, OR LOSS OF PROFITS, ARISING FROM THE RELATIONSHIP OF THE
PARTIES OR THE CONDUCT OF BUSINESS UNDER, OR BREACH OF, THIS AGREEMENT,
EXCEPT WHERE SUCH DAMAGES OR LOSS OF PROFITS ARE CLAIMED BY OR AWARDED TO A
THIRD PARTY IN A CLAIM OR ACTION AGAINST WHICH A PARTY TO THIS AGREEMENT
HAS A SPECIFIC OBLIGATION TO INDEMNIFY ANOTHER PARTY TO THIS AGREEMENT.
9.14 No Assignment; Exceptions. This agreement may only be assigned
in conjunction with and to the same party or parties to whom the Management
Agreement has been validly assigned under the Management Agreement's terms
and conditions.
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9.15 Disclaimer of Agency. Neither party by this agreement makes
the other party a legal representative or agent of the party, nor does
either party have the right to obligate the other party in any manner,
except if the other party expressly permits the obligation by the party or
except for provisions in this agreement expressly authorizing one party to
obligate the other.
9.16 Independent Contractors. The parties do not intend to create
any partnership, joint venture or other profit-sharing arrangement,
landlord-tenant or lessor- lessee relationship, employer-employee
relationship, or any other relationship other than that expressly provided
in this agreement. Neither party to this agreement has any fiduciary duty
to the other party.
9.17 Expense. Each party bears the expense of complying with this
agreement except as otherwise expressly provided in this agreement.
9.18 General Terms.
(a) This agreement, including the attached Schedule of
Definitions, is to be interpreted in accordance with the following rules of
construction:
(i) The definitions in this agreement apply equally to both the
singular and plural forms of the terms defined unless the context
otherwise requires;
(ii) The words "include," "includes" and "including" are deemed
to be followed by the phrase "without limitation";
(iii) All references in this agreement to Sections and Exhibits
are references to Sections of, and Exhibits to, this agreement, unless
otherwise specified; and
(iv) All references to any agreement or other instrument or
statute or regulation are to it as amended and supplemented from time
to time (and, in the case of a statute or regulation, to any
corresponding provisions of successor statutes or regulations), unless
the context otherwise requires.
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(b) Any reference in this agreement to a "day" or number of
"days" (without the explicit qualification of "Business") is a
reference to a calendar day or number of calendar days. If any action
or notice is to be taken or given on or by a particular calendar day,
and the calendar day is not a Business Day, then the action or notice
may be taken or given on the next Business Day.
9.19 Conflicts with Management Agreement. The provisions of the
Management Agreement govern over those of this Services Agreement if the
provisions contained in this agreement conflict with analogous provisions
in the Management Agreement.
9.20 Master Signature Page. Each party agrees that it will execute
the Master Signature Page that evidences such party's agreement to execute,
become a party to and be bound by this agreement, which document is
incorporated herein by this reference.
SPRINT PCS
SERVICES AGREEMENT
BETWEEN
SPRINT SPECTRUM L.P.
AND
SOUTHWEST PCS, L.P.
DATED AS OF JANUARY 25, 1999
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TABLE OF CONTENTS
Page
1. ENGAGEMENT OF SPRINT SPECTRUM........................................................................1
1.1 Engagement of Sprint Spectrum..........................................................1
1.2 Reliance on Manager....................................................................2
1.3 Non-exclusive Service..................................................................2
1.4 Manager's Use of Services. .........................................................2
2. SERVICES.............................................................................................2
2.1 Available Services; Selected Services..................................................2
2.1.1 Available Services..............................................................2
2.1.2 Selected Services...............................................................3
2.1.3 Changes to Selected Services....................................................3
2.1.4 Performance of Selected Services................................................3
2.2 Third Party Vendors....................................................................3
2.3 Contracts..............................................................................4
3. FEES FOR SELECTED SERVICES...........................................................................4
3.1 Payment of Fees........................................................................4
3.2 Adjustment of Fees.....................................................................4
3.3 Late Payments..........................................................................4
3.4 Taxes..................................................................................5
4. TERM; TERMINATION; EFFECT OF TERMINATION.............................................................5
4.1 Term...................................................................................5
4.2 Effect of Termination..................................................................5
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION..........................................................5
5.1 Books and Records......................................................................5
5.1.1 General.........................................................................5
5.1.2 Audit...........................................................................6
5.1.3 Contesting an Audit. ..........................................................6
5.2 Confidential Information...............................................................7
6. INDEMNIFICATION......................................................................................8
6.1 Indemnification by Sprint Spectrum.....................................................8
6.2 Indemnification by Manager.............................................................9
6.3 Procedure..............................................................................9
6.3.1 Notice..........................................................................9
6.3.2 Defense by Indemnitor..........................................................10
6.3.3 Defense by Indemnitee..........................................................10
6.3.4 Costs..........................................................................10
7. DISPUTE RESOLUTION..................................................................................10
7.1 Negotiation...........................................................................10
7.2 Unable to Resolve.....................................................................11
7.3 Attorneys and Intent..................................................................11
8. REPRESENTATIONS AND WARRANTIES......................................................................11
8.1 Due Incorporation or Formation; Authorization of Agreements...........................11
8.2 Valid and Binding Obligation..........................................................11
8.3 No Conflict; No Default...............................................................12
8.4 Litigation............................................................................12
9. GENERAL PROVISIONS..................................................................................12
9.1 Notices...............................................................................12
9.2 Construction..........................................................................12
9.3 Headings..............................................................................12
9.4 Further Action........................................................................13
9.5 Specific Performance..................................................................13
9.6 Entire Agreement; Amendments..........................................................13
9.7 Limitation on Rights of Others........................................................13
9.8 Waivers; Remedies.....................................................................13
9.9 Waiver of Jury Trial..................................................................14
9.10 Binding Effect........................................................................14
9.11 Governing Law.........................................................................14
9.12 Severability..........................................................................14
9.13 Limitation of Liability...............................................................14
9.14 No Assignment; Exceptions.............................................................15
9.15 Disclaimer of Agency..................................................................15
9.16 Independent Contractors...............................................................15
9.17 Expense...............................................................................15
9.18 General Terms.........................................................................15
9.19 Conflicts with Management Agreement...................................................16
9.20 Master Signature Page.................................................................16
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