AFFILIATION AGREEMENT
THIS AFFILIATION AGREEMENT (this "Agreement") is made as of July 31,
1998, by and among ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION, an Oklahoma corporation
("DCC"), and ▇▇▇▇▇▇ CELLULAR OF IMPERIAL, INC., an Oklahoma corporation
("Operator"), and AIRTOUCH CELLULAR, a California corporation ("AirTouch").
W I T N E S S E T H:
WHEREAS, AirTouch seeks, through operating its own Systems (as defined
below) and through affiliation, roaming and other arrangements with other
operators of Systems, to establish and maintain a seamless wireless
communications network and to establish among participants therein certain
minimum levels of common customer service and technical capabilities; and
WHEREAS, DCC and Operator have determined that certain benefits of
affiliation, including but not limited to those arising from increased scale
and scope of services, would inure to Operator by aligning itself with a
larger scale provider of wireless communications services.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
have the following meanings:
"AFFILIATE" means any Person that, directly or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with the Person specified.
"AFFILIATED SYSTEM" means an AirTouch System or any other System
that offers Services under the Brands.
"AIRTOUCH SYSTEMS" means those Systems controlled by AirTouch.
"BRANDS" mean the service marks, trademarks, trade names, symbols
or designs used, from time to time, by the AirTouch Systems in connection
with the offer and sale of Products and Services.
"CELLULAR SYSTEM" means a radio communications system authorized
under the rules for the domestic public cellular radio telecommunications
service designated as Subpart H of Part 22 of the FCC Rules in effect as of
the date hereof or any revision thereto or successor thereof which may be in
effect from time to time, including the network, marketing, distribution,
sales, customer interface and operations functions relating thereto.
"CONTROL" (including the terms "controlling," "controlled by" and
"under common control with") of a Person means (i) the possession, direct or
indirect, of the power to vote 50% or more of the voting securities or other
voting interests of such Person, or (ii) the possession, directly or
indirectly, of the affirmative power to direct, or cause the direction of,
the management and policies of such Person, whether through the ownership of
voting securities or other voting interests, by contract or otherwise.
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"EFFECTIVE DATE" means the date on which the closing of the
transactions contemplated by the Purchase Agreement occurs.
"ESMR SYSTEM" means any commercial mobile radio system authorized
under the rules for Enhanced Specialized Mobile Radio services designated
under Subpart S of Part 90 of the FCC Rules in effect as of the date hereof
or any revision or successor thereof, which may be in effect from time to
time, including the network, marketing, distribution, sales, customer
interface and operations functions relating thereto.
"FCC" means the Federal Communications Commission or any successor
agency or entity performing substantially the same functions.
"FEATURES" means the dialing plans, feature codes and other
technical capabilities related to the provision of Services.
"LICENSE" means any permit, license, waiver or authorization from
any governmental body having jurisdiction over a Person required for conduct
of an activity, including, without limitation, any FCC license or any
certificate of public convenience and necessity.
"OPERATOR'S SERVICE AREA" or "CALIFORNIA RSA #7" means the rural
service area designated by the FCC as Cellular Market California No. 7.
"OPERATOR'S SYSTEM" means the Cellular System controlled by
Operator in California RSA #7.
"PCS SYSTEM" means a radio communications system authorized under
the rules for broadband personal communications services designated as
Subpart E of part 24 of the FCC Rules as of the date hereof, or any revision
thereto or successor thereof which may be in effect from time to time,
including the network, marketing, distribution, sales, customer interface and
operations functions relating thereto.
"PERSON" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company,
trust, estate, unincorporated organization, governmental or regulatory body
or other entity.
"PLANS" means subscriber purchasing plans for Products and/or
Services.
"PRODUCTS" means subscriber equipment offered for sale or lease and
any goods and other property ancillary thereto.
"PURCHASE AGREEMENT" means that certain Asset Purchase Agreement
dated as of May 5, 1998 between Southern Cellular, Inc. and Operator, as such
agreement may be amended from time to time.
"ROAMING AGREEMENTS" means the roaming agreements described in
Section 4(a).
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"SERVICE AREA" means, as to any Person, the geographic territory in
which such Person provides Services.
"SERVICES" means commercial mobile radio services provided by
Systems, including, without limitation, voice and data transport, and the
services ancillary thereto.
"SYSTEM" means a Cellular System, an ESMR System or a PCS System.
"TRADEMARK LICENSE AGREEMENT" means the trademark license agreement
in the form attached as EXHIBIT A to be entered into between AirTouch and
Operator on the Effective Date, as amended from time to time, and any other
Brand license or sublicense agreement executed in substitution therefor.
2. PERFORMANCE STANDARDS.
(a) PERFORMANCE STANDARDS. AirTouch may establish minimum
standards for various aspects of the AirTouch Systems and for the operations
thereof (the "Performance Standards"), including but not limited to certain
minimum Features, Plans, Products and Services to be offered by the AirTouch
Systems. AirTouch may revise the Performance Standards from time to time in
its reasonable discretion. The Performance Standards will be generally
consistent with industry practices and capabilities. Set forth on EXHIBIT B
are the initial Performance Standards (the "Initial Performance Standards").
(b) COMPLIANCE WITH PERFORMANCE STANDARDS. Operator will cause
Operator's System to comply with the Initial Performance Standards and any
revised Performance Standards of which AirTouch has notified Operator and to
which Operator has not reasonably objected by notice to AirTouch within 10
days after receiving notification of the revised Performance Standard.
Operator shall be deemed to comply with a Performance Standard so long as
Operator's performance with such Performance Standard equals or exceeds the
median performance recorded in respect thereto for the same date or period by
the AirTouch System operating in the San Diego MSA. Subject to Section 7,
upon request of Operator and solely for the purpose of confirming the median
performance of the San Diego MSA System with a Performance Standard, AirTouch
shall furnish Operator with summary information for the applicable date or
period in respect of the performance of such System for any Performance
Standard as to which Operator fails to equal or exceed the median performance
of such System.
(c) SURVEYS.
(i) The parties recognize that Operator and AirTouch may
wish to obtain market research data or other information related to
Operator's System or to Features, Plans, Products or Services through the use
of surveys ("Surveys"). To this end, AirTouch agrees to conduct or cause a
third party or other Persons to conduct within Operator's Service Area (A) a
Survey of subscribers and (B) a Survey of technical performance, in each case
at least on an annual basis (the "Annual Surveys") and may, in its sole
discretion, conduct or cause a third party to conduct additional Surveys from
time to time.
(ii) Annually and at such other times as AirTouch determines
to conduct a Survey or cause a Survey to be conducted, Operator will, upon
AirTouch's request, furnish promptly to
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AirTouch or such third party a complete and accurate list of its subscribers
in such a format as may be reasonably requested by AirTouch or such third
party, together with such other information as AirTouch or such third party
organization determines is reasonably necessary to conduct the Surveys.
Operator authorizes AirTouch or such third party to contact any and all of
its subscribers solely for the purposes of conducting the Surveys. AirTouch
will furnish or cause any such third party to furnish Operator with copies of
such Surveys, the results therefrom and any market data so obtained with
respect to Operator's Service Area. AirTouch will treat and will cause any
third party to treat Operator's list of subscribers and the information
obtained or generated in connection with such Surveys in accordance with the
provisions of Section 7 hereof. All Annual Surveys shall be at Operator's
expense.
(d) INSPECTION. In order to determine the compliance of Operator's
System with the Performance Standards referred to in Section 2(a), AirTouch
and its representatives will have the right to meet with Operator's employees
and officers and to inspect the operations of Operator's System, including
conducting reasonable on-site tests. Such inspections will be conducted on
reasonable prior notice, during normal business hours and will be performed
in a manner which does not unreasonably interfere with the operations of
Operator's System. The costs of any such inspection will be borne by
AirTouch. If AirTouch determines that Operator's System is not in compliance
with any such Performance Standard, it will notify Operator in writing of (A)
the nature of the noncompliance and (B) the action (or omission) necessary to
cure the noncompliance. In such event, AirTouch may also specify within such
notice or by separate notice, a date not less than the number of days after
such notice is delivered to Operator consistent with Section 9(c) below, by
which such noncompliance must be remedied.
3. BRANDS: ADVERTISING; SERVICE PLANS; PROMOTIONS.
(a) BRANDS. (i) As soon as commercially reasonable, and in no
event later than the date that is three (3) months following Operator's
assumption of management control of California RSA #7 (the "Brand Launch
Date"), all Products and Services offered and sold by Operator's System will
be offered and sold exclusively under the Licensed Marks (as defined in the
Trademark License Agreement) pursuant to the terms and conditions of the
Trademark License Agreement, except for any Product that Operator is
prohibited from offering or selling under the Licensed Marks under the terms
of the purchase agreement therefor, in which case such Product may be offered
and sold under the brand of the manufacturer or distributor thereof. AirTouch
will have the right, in its sole discretion, to substitute other Brand(s) for
the Licensed Marks or to require Operator's System to use additional Brand(s)
in connection with some or all of the Products and Services; provided that
any Brand to be used by and licensed to Operator will be substantially the
same as a Brand used in the Southern California region by the AirTouch
Systems. If AirTouch designates any substitute or additional Brand, Operator
will enter into a license agreement in respect of such Brand in such form as
will be reasonably prescribed by AirTouch and will use such Brand only in
compliance with the terms and conditions set forth in such license agreement;
provided, however, that Operator will not be required to enter into any
license agreement that provides for compensation thereunder that is in
addition to that provided herein or the Trademark License Agreement.
(ii) Each of Operator's business locations shall at all
times during the term of this Agreement comply with AirTouch's reasonable
requirements for showroom and display capacity, appearance, accessibility,
equipment installation and maintenance capacity and efficiency, which
requirements shall take into consideration the location and environment of
Operator's Service Area.
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AirTouch will have the right to review and approve the plans, specifications
and renderings of the proposed business location, which approval will not be
unreasonably withheld or withdrawn. Operator further agrees to ensure that
each of its agents, dealers or other Persons who are authorized by Operator
to use the License Marks ("Operator's Distributors") is subject to the
obligations set forth in this subsection (ii).
(iii) Operator agrees that it will not permit any agent,
distributor or other person to use any of the Licensed Marks unless such
person has entered into a Trademark License Agreement with AirTouch in a form
reasonably acceptable to AirTouch.
(b) ADVERTISING.
(i) AirTouch and the Affiliated Systems may from time to
time implement or participate in advertising programs that directly or
indirectly promote the Brands on a national or regional basis
("Advertising"). Such Advertising may include, but is not limited to, (A)
newspaper, magazine and written periodical advertising; (B) radio scripts,
tape recordings and audio advertising; (C) television scripts, videotape
recording and electronic advertising; (D) telephone directories; (E)
billboards, in-store point of purchase or other display advertising; (F)
flyers or similar advertising; and (G) direct mail materials. Operator
acknowledges and agrees that AirTouch is not obligated to ensure that
Operator benefits from any Advertising.
(ii) Operator may elect to utilize any advertising materials
prepared by AirTouch. If Operator elects to utilize such materials, Operator
shall pay for (i) all printing and materials costs related to the materials
used by Operator, in addition to the cost of any customization of such
materials for Operator's use, and (ii) its pro rata share of costs associated
with the development, design, and production of such materials, which pro
rata share shall be calculated by multiplying the total applicable cost by a
fraction, the numerator of which is the total population within Operator's
Service Area (RSA #7) and the denominator of which is the total population
within the Operator's Service Area and the area covered by the AirTouch
Systems in Southern California (RSA #7, MSA #2 and MSA # 18). Operator shall
be solely responsible for the placement, publication, display, distribution,
mailing or airing of Advertising in Operator's Service Area, and shall use
materials purchased from AirTouch under this Agreement only within Operator's
Service Area.
(iii) Operator will use reasonable efforts to coordinate its
promotional activities (including without limitation promotion of Plans) with
Affiliated Systems in Service Areas which are adjacent to Operator's Service
Area and shall bear the costs and expenses of its own promotional activities.
(c) SERVICE PLANS.
During the term of this Agreement, Operator agrees to offer the following
Service plans within Operator's Service Area, in addition to any other local
Service plans that Operator elects, in its sole discretion, to offer within
Operator's Service Area: (i) at least two (2) basic digital Service plans
designated by AirTouch that conform as to pricing and other material terms
and conditions to digital plans offered by AirTouch within the neighboring
AirTouch System(s); (ii) at least two (2) basic analog Service plans
designated by AirTouch that conform as to pricing and other material terms
and conditions to analog plans offered by AirTouch within the neighboring
AirTouch System(s); and (iii) any prepaid Service plan(s) designated by
AirTouch that conform as to pricing and other material
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terms and conditions to prepaid service plan(s) offered by AirTouch within
the neighboring AirTouch System(s). Operator acknowledges and agrees that the
Service plans designated by AirTouch in accordance with the preceding
sentence may vary from time-to-time during the term of this Agreement.
Operator further acknowledges and agrees that the name of any local Service
plan offered by Operator within Operator's Service Area that does not conform
to AirTouch designated plans hereunder shall be distinguished from the names
of the AirTouch designated Service plans and shall apply only within
Operator's Service Area.
(d) PROMOTIONS AND ADVERTISING.
Unless otherwise mutually agreed to in advance by the parties, all promotions
and advertising by Operator within Operator's Service Area must clearly state
in writing that such promotions and advertising are applicable only within
Operator's Service Area, and all promotions and advertising by AirTouch
within AirTouch Systems must clearly state in writing that such promotions
and advertising apply only within the applicable AirTouch Systems.
4. ROAMING AGREEMENT.
(a) RECIPROCAL AGREEMENT. Operator and AirTouch will enter into
and maintain in effect during the term specified therein (and to the extent
provided in Section 4(b)), a roaming agreement in the form of attached
EXHIBIT C covering Operator's System and all AirTouch Systems designated
therein, which agreement will provide for mutual roaming rights between
Operator's System and each such AirTouch Systems (the "Roaming Agreement").
The Roaming Agreement will provide for an initial rate per billable minute of
$0.50 for each party. On each anniversary of this agreement (each a "Reset
Date") the roaming rate that the Home Carrier pays to the Serving Carrier
(each as defined in the Roaming Agreement) shall be recalculated by
multiplying the rate then in effect for such Home Carrier by a fraction, the
numerator of which shall be the product of the total billable minutes (less
all minutes attributable to fraud) of customers of the Home Carrier system
roaming in the markets of the Serving Carrier during the twelve month period
ending on the date that is twelve months prior to the Reset Date (the "Total
Billable Minutes") multiplied by 1.1, and the denominator of which shall be
the Total Billable Minutes of customers of the Home Carrier system roaming in
the markets of the Serving Carrier during the twelve month period ending on
the Reset Date, provided that in no event will the applicable roaming rate
(i) be reduced on any given Reset Date by more than 10% or (ii) be increased.
(b) CONTINUATION OF ROAMING AGREEMENTS. If this Agreement is
terminated for any reason prior to the fifth anniversary of the Effective
Date (the "Five Year Date"), Operator and DCC agree that AirTouch may, if it
so elects in its sole discretion, continue any or all of the Roaming
Agreements entered into pursuant to Section 4(a) until the Five Year Date.
Operator and DCC further agree that if Operator or DCC proposes to effect a
Transfer (as defined below) prior to the Five Year Date that would result in
a Change of Control of Operator's System, if AirTouch so elects in its sole
discretion, such Transfer will be subject to the condition (which may not be
waived) that the transferee assume and agree to perform any or all of the
Roaming Agreements entered into pursuant to Section 4(a) and that any such
Roaming Agreements continue until the Five Year Date notwithstanding any
termination of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF AIRTOUCH. AirTouch represents to
Operator and DCC that:
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(a) ORGANIZATION. It is duly organized, validly existing and in
good standing under the laws of the state of its organization and has all
requisite power and authority to carry out its business as now conducted, and
to enter into this Agreement and to perform its obligations hereunder. It is
duly qualified or licensed to do business and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary.
(b) AUTHORITY. This Agreement has been duly authorized by all
necessary corporate action on the part of AirTouch. It has been duly executed
and delivered by one of its duly authorized officers and constitutes its
valid and binding obligation, enforceable against it in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforceability of creditors'
rights generally and except that the remedy of specific performance or
similar equitable relief may be subject to equitable defenses and to the
discretion of the court before which enforcement is sought.
(c) AUTHORIZATIONS AND CONSENTS: NO VIOLATION.
(i) Neither its execution and delivery of this Agreement
nor its performance hereunder will conflict with, or result in any breach or
violation of, any provision of any of its formative organizational or
governance agreements; or constitute, with or without notice or the passage
of time or both, a breach, violation or default, create a lien or give rise
to any right of termination, modification, cancellation, prepayment or
acceleration under any order, writ, injunction, decree, law, statute, rule or
regulation, franchise, License or any mortgage, indenture, lease, agreement
or other instrument by which it is bound or to which its properties are
subject, except for breaches, violations, defaults, liens or rights of
termination, modification, cancellation, prepayment or acceleration which
would not, singly or in the aggregate, materially adversely affect its
ability to perform the obligations contemplated by this Agreement.
(ii) No authorizations are required to be obtained from any
governmental body with respect to its execution of this Agreement and its
performance hereunder.
(iii) No consents are reasonably anticipated to be required
to be obtained pursuant to any partnership, joint venture or other similar
agreement or any material contract, agreement, License or instrument to which
is a party with respect to its execution of this Agreement and its
performance hereunder.
(d) AGREEMENTS WITH THIRD PARTIES; EMPLOYMENT AND NON-COMPETITION
AGREEMENTS. Neither it nor any of its Affiliates is a party to any employment
agreement or a party to or otherwise bound by any non-competition,
non-solicitation or other similar agreement relating to the provision of
Services or that would otherwise be inconsistent with the performance of its
obligations under this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF OPERATOR AND DCC. Each of
Operator and DCC, jointly and severally, represent and warrant to AirTouch
that:
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(a) ORGANIZATION. It is duly organized, validly existing and in
good standing under the laws of the state of its organization and has all
requisite power and authority to carry out its business as now conducted, and
to enter into this Agreement and to perform its obligations hereunder. It is
duly qualified or licensed to do business and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary.
(b) AUTHORITY. This Agreement has been duly authorized by all
necessary partnership or corporate action, as applicable, on the part of
Operator and DCC. It has been duly executed and delivered by one of its duly
authorized officers or partners and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforceability of creditors' rights generally and except
that the remedy of specific performance or similar equitable relief may be
subject to equitable defenses and to the discretion of the court before which
enforcement is sought.
(c) AUTHORIZATIONS AND CONSENTS: NO VIOLATION.
(i) Neither its execution and delivery of this Agreement
nor its performance hereunder will conflict with, or result in any breach or
violation of, any provision of any of its formative organizational or
governance agreements; or constitute, with or without notice or the passage
of time or both, a breach, violation or default, create a lien or give rise
to any right of termination, modification, cancellation, prepayment or
acceleration under any order, writ, injunction, decree, law, statute, rule or
regulation, franchise, License or any mortgage, indenture, lease, agreement
or other instrument by which it is bound or to which its properties are
subject, except for breaches, violations, defaults, liens or rights of
termination, modification, cancellation, prepayment or acceleration which
would not, singly or in the aggregate, materially adversely affect its
ability to perform the obligations contemplated by this Agreement.
(ii) No authorizations are required to be obtained from any
governmental body with respect to its execution of this Agreement and its
performance hereunder.
(iii) No consents are reasonably anticipated to be required
to be obtained pursuant to any partnership, joint venture or other similar
agreement or any material contract, agreement, License or instrument to which
is a party with respect to its execution of this Agreement and its
performance hereunder.
(d) AGREEMENTS WITH THIRD PARTIES; EMPLOYMENT AND NON-COMPETITION
AGREEMENTS. Neither it nor any of its Affiliates is a party to any employment
agreement or a party to or otherwise bound by any non-competition,
non-solicitation or other similar agreement relating to the provision of
Services or that would otherwise be inconsistent with the performance of its
obligations under this Agreement.
(e) OWNERSHIP. DCC indirectly owns all of the outstanding equity
in and voting interests of Operator. On the Effective Date, Operator will be
the sole owner of all of the assets of Operator's System.
(f) FCC AND OTHER GOVERNMENTAL REPORTS AND APPLICATIONS. All
material reports, applications and other documents required to be filed with
the FCC, CPUC, and all other governmental
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or administrative authorities necessary for Operator to provide Services for
all of the territory within Operator's California RSA #7 service area, as
defined by the relevant System Information Update map dated March 1994 (the
"March 1994 SIU Map"), have been filed and are accurate and complete in all
material respects, and there has been no change in the Services actually
provided since March 1994 that would establish a service area materially
smaller in size than that shown in the March 1994 SIU Map.
(g) COVERAGE OF OPERATOR'S SYSTEM. On or before the date that is
120 days after the Effective Date and continuously thereafter during the term
of this Agreement, Operator shall design, construct and operate Operator's
System such that the contours of Operator's System defined by the March 1994
SIU Map will cover at least eighty-five percent (85%) of the population
within Operator's Service Area (the "Covered Territory"), which Covered
Territory shall include, without limitation, all of the Interstate 8 corridor
and all other major interstate and state highways located within the
Operator's Service Area and the towns of Calexico, Brawley and El Centro.
7. CONFIDENTIAL INFORMATION: NON-SOLICITATION.
(a) Each of DCC, Operator and AirTouch will, and will cause its
respective partners, shareholders, directors, officers, employees, and agents
(collectively, when used with respect to any party, its "Representatives"),
to keep secret and retain in strictest confidence, except as provided in
Section 7(b) hereof, any and all Confidential Information of the other party
and will not distribute, disseminate or disclose such Confidential
Information, and will cause its Representatives not to distribute,
disseminate or disclose such Confidential Information, except to (i) any
Representative of AirTouch or Operator on a "need to know" basis in
connection with this Agreement or the operation of Operator's System, the
AirTouch Systems (or the Affiliated Systems) and their respective businesses
or (ii) to any lender to Operator or AirTouch on a "need to know" basis in
connection with the financing of the Operator's System or the AirTouch
Systems, and any such Person receiving Confidential Information pursuant to
this Section 7(a) will use, and will cause its Representatives or lenders to
use, such Confidential Information only for the benefit of DCC, Operator,
AirTouch and the AirTouch Systems (or the Affiliated Systems) or for any
other specific purposes for which it was disclosed to such party.
All-Confidential Information disclosed pursuant to this Agreement will remain
the property of the Person whose property it was prior to such disclosure.
(b) In the event that DCC, Operator, AirTouch or any Person to
whom any of them transmits any Confidential Information becomes legally
compelled (by oral questions, interrogatories, requests for information or
documents, subpoena, investigative demand or similar process) to disclose any
of the Confidential Information, such Person will use its best efforts to
provide AirTouch and Operator with prompt written notice prior to disclosure
(not less than 24 hours) so that AirTouch, Operator, as applicable, may seek
a protective order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement. In the event that such protective order or
other remedy is not obtained, or that DCC, Operator or AirTouch, as
applicable, waives compliance with the provisions of Section 7(a), the Person
who is compelled to disclose such Confidential Information will furnish only
that portion of the Confidential Information which (based on the advice of
counsel) it is legally required to disclose and will exercise its best
efforts to obtain reliable assurance that protective treatment will be
accorded the Confidential Information.
(c) Upon termination of this Agreement, Operator, DCC and AirTouch
will, and will cause their respective Representatives to, return to the
appropriate party all documents that contain Confidential Information or, if
the party so requests, cause such documents to be destroyed.
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(d) For purposes of this Section, "Confidential Information" means
all confidential documents and information (including, without limitation,
confidential commercial information and information with respect to customers
and proprietary technologies or processes and the design and development of
new products and services) concerning Operator, its Affiliates, Operator's
System or the Systems owned by Operator's Affiliates, AirTouch, its
Affiliates, the AirTouch Systems or the Affiliated Systems, furnished to or
obtained by a party to this Agreement by or from the other parties or their
Representatives (as such term is defined in Section 7(a) hereof) in
connection with this Agreement or the operation of Operator's System, the
Affiliated Systems or the parties' respective businesses, except to the
extent that such information is (i) generally available to the public other
than as a result of a breach by the receiving Person of the provisions of
Section 7 hereof, (ii) already in the possession of the receiving Person or
its Representatives without restriction and prior to any disclosure pursuant
to any of the terms of this Agreement; (iii) lawfully disclosed to the
receiving Person or its Representatives by a third party who is free lawfully
to disclose the same; or (iv) independently developed by the receiving Person
or its Representatives without use of any Confidential Information obtained
in connection with this Agreement or the operation of Operator's System, the
Affiliated Systems or the parties' respective businesses.
(e) During the term of this Agreement, (i) neither DCC, Operator
nor their respective affiliates will directly solicit, recruit, or otherwise
encourage any person employed within Southern California, Arizona or New
Mexico by AirTouch or its affiliates to leave his or her employment, and (ii)
neither AirTouch nor its affiliates will directly solicit, recruit, or
otherwise encourage any person employed within Southern California, Arizona
or New Mexico by DCC, Operator or their respective affiliates to leave his or
her employment.
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY OPERATOR OR DCC. DCC and Operator jointly
and severally will, to the fullest extent permitted by law, indemnify, defend
and hold harmless AirTouch, its officers, directors, employees, agents and
control Persons from any and all losses, claims, damages, liabilities, costs
and expenses (including reasonable attorneys' fees and expenses)
(collectively "Losses") arising from claims by Persons other than AirTouch
and its Affiliates and their respective officers, directors, employees,
partners, agents and control Persons and which relate to the performance or
non-performance of Operator or DCC of their respective duties or breach of
their representations hereunder. except where such Losses are due to the
negligence or willful misconduct of AirTouch, its partners, officers,
directors, employees, agents and control Persons or where such Losses have
been reimbursed to AirTouch directly by Operator's or DCC's insurer.
(b) INDEMNIFICATION BY AIRTOUCH. AirTouch will, to the fullest
extent permitted by law, indemnify, defend and hold harmless DCC and
Operator, their partners, shareholders, officers, directors, employees,
agents and control Persons from any and all Losses arising from claims by
Persons other than Operator, DCC or their respective Affiliates and their
respective officers, directors, employees, agents and control Persons and
which relate to the performance or non-performance of AirTouch of its duties
or breaches of its representations hereunder, except where such Losses are
due to the negligence or willful misconduct of Operator or DCC, their
shareholders, officers, directors, employees, agents and control Persons or
where such Losses have been reimbursed to Operator directly by AirTouch's
insurer.
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(c) THIRD PARTY CLAIMS. Promptly after receipt by an indemnified
party under this Section 8 of notice of any claim or the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 8, deliver to the indemnifying party a written notice of the
claim or action and the indemnifying party will have the right to participate
in, and, to the extent the indemnifying party so desires and promptly
notifies the indemnified party in writing of such desire, jointly with any
other indemnifying party similarly noticed, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party; provided,
however, that an indemnified party will only have the right to retain its own
counsel, with the fees, disbursements and other charges to be paid by the
indemnifying party, if (i) representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate (based on
the reasonable advice of counsel to the indemnified party) due to actual or
potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding (provided that if such
other party is the indemnifying party, the indemnifying party will not have
the right to direct the defense of such action on the part of the indemnified
party), (ii) the indemnified party has reasonably concluded (based on the
reasonable advice of counsel) that there may be legal defenses available to
it or other indemnified parties that are different from or in addition to
those available to the indemnifying party, (iii) the indemnifying party has
not in fact employed counsel reasonably satisfactory to the indemnified party
within a reasonable time after receiving notice of the claim or commencement
of the action or (iv) the employment of counsel at the indemnifying party's
expense by the indemnified party has been authorized in writing by the
indemnifying party specifying that it will pay for such counsel. If, and only
to the extent that, the failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action results
in the forfeiture of substantive rights or defenses of the indemnifying party
in such action, such failure will relieve such indemnifying party of
liability to the indemnified party under this Section 8, but the omission so
to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 8. If the indemnifying party chooses to assume the defense of
any claim or action hereunder, it will not, without the indemnified party's
consent, consent to the entry of any judgment or enter into any settlement
that provides for injunctive or other non-monetary relief by the indemnified
party or that does not include as an unconditional term thereof the giving by
each claimant an unconditional release of the indemnified party from all
liability.
9. TERM: TERMINATION.
(a) TERM. The initial term of this Agreement will expire on the
twentieth anniversary of the Effective Date. Thereafter, the term will
automatically be extended for additional five-year periods unless either
Operator or AirTouch makes a valid election not to renew this Agreement. An
election not to renew will be valid only if in writing and delivered to the
other at least one year prior to the expiration of the then current term.
(b) TERMINATION BY OPERATOR. This Agreement may be terminated by
Operator at any time following the occurrence of any of the following events:
(i) a material breach of this Agreement by AirTouch which has
not been cured within 90 days after Operator has delivered written
notice to AirTouch of such breach;
(ii) a Change of Control of Operator's System;
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(iii) a termination of the Trademark License Agreement;
(iv) dissolution, liquidation or winding-up of AirTouch unless
an Affiliate of AirTouch or of AirTouch Communications, Inc. (or any
successor thereto whether by merger, spin-off or otherwise) assumes
AirTouch's obligations hereunder;
(v) the entry by a court having jurisdiction of (A) a decree
or order for relief in respect of AirTouch in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudicating AirTouch bankrupt or insolvent or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of AirTouch under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee or other similar official of AirTouch
or of any substantial part of its property;
(vi) the commencement by AirTouch of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of
AirTouch in any involuntary case or proceeding under applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or other similar
official of AirTouch or any substantial part of its property, or the
making by it of an assignment for the benefit of creditors; or
(vii) the suspension, revocation, or surrender of the FCC
License for either of the San Diego Service Area or the Los Angeles
Service Area which are currently held by AirTouch (unless such
suspended, revoked or surrendered FCC License is properly thereafter
awarded to AirTouch or a Permitted Assignee of AirTouch hereunder, as
defined in Section 12(e)(ii) below) or the sale or other disposition
of such FCC License to a Person other than AirTouch or a Permitted
Assignee of AirTouch hereunder (unless the right to use the Brands
are transferred to such Person in connection with such sale or other
disposition).
(c) TERMINATION BY AIRTOUCH. This Agreement may be terminated by AirTouch
at any time following the occurrence of any of the following events:
(i) a payment default which has not been cured within 60 days
or other material breach of this Agreement by Operator or DCC which
has not been cured within 90 days after AirTouch has delivered
written notice to the breaching party of such breach;
(ii) failure to comply with any Performance Standard within 60
days of the date specified in any notice delivered under Section 2(d)
with respect to any Network Performance Standard, or within 30 days of
the date specified in any notice delivered under Section 2(d) with
respect to any Customer Service Standard, provided that this
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Section 9(c)(ii) shall apply only to Performance Standard failures
that do not require the involvement of an outside vendor to be
remedied, and further provided that notwithstanding the date for
performance set forth in any notice delivered under Section 2(d),
Operator shall commence corrective action to remedy any such failure
as soon as possible after receiving notice thereof from AirTouch and
shall proceed with due diligence to completion;
(iii) failure to comply with any Performance Standard within 90
days of the date specified in any notice delivered under Section 2(d)
with respect to any Performance Standard failure that requires
involvement of an outside vendor to be remedied, provided that
notwithstanding the date for performance set forth in any notice
delivered under Section 2(d), Operator shall commence corrective
action to remedy any such failure as soon as possible after receiving
notice thereof from AirTouch and shall proceed with due diligence to
completion;
(iv) termination of the Trademark License Agreement;
(v) dissolution, liquidation or winding-up of Operator;
(vi) the suspension, revocation or other loss of, or
surrender, sale or other disposition of, Operator's FCC License for
all or any material portion of Operator's Service Area;
(vii) Operator's failure to consent to any revised Performance
Standard;
(viii) the occurrence of any event which is, or after notice or
passage of time or both would be an "event of default" under any
material debt of Operator or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any debt by Operator, whether such debt now
exists or will hereafter be created, provided that such event will
not permit termination hereof unless either (A) such event will remain
uncured at the earlier of the end of any cure period available under
the applicable loan agreement or other instrument or six months from
the first occurrence thereof or (B) the lender, obligee or other
beneficiary will assert any remedies under the applicable loan
agreement or other instrument;
(ix) the entry by a court having jurisdiction of (A) a decree
or order for relief in respect of Operator in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudicating Operator bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of Operator under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee or other similar of official of Operator
or of any substantial part of its property;
(x) the commencement by Operator of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of
Operator in any involuntary case or
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proceeding under applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law or the consent by it
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or
other similar of official of Operator or any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or its failure to pay its debts generally as they become
due;
(xi) a Change of Control of Operator's System;
(xii) the acquisition and operation by AirTouch or its
Affiliate of Control of a System operating in the California RSA #7;
or
(xiii) the failure of Operator to build out and operate
Operator's System in strict compliance with in Section 6(g) above.
(d) For purposes of this Section 9, a "Change of Control" of
Operator's System will be deemed to have occurred at such time as: (i) DCC no
longer beneficially owns directly or indirectly (whether as a result of
merger, consolidation, sale, assignment, lease or otherwise, in one
transaction or series of related transactions) equity of Operator
constituting a majority of the outstanding equity in and voting interests of
Operator, (ii) any Person other than DCC, or group of Persons acting in
concert, acquires beneficial ownership, directly or indirectly, of 50% or
more of the outstanding equity in or voting interests of Operator or DCC or
(iii) Operator sells or otherwise disposes of (including, without limitation
in connection with the formation of a joint venture that is not controlled by
DCC) all or substantially all of the assets of Operator's System (including,
without limitation in connection with the sale or other disposition of all or
substantially all of the assets of Operator).
10. FUTURE SALE OF CALIFORNIA RSA #7. In the event that (i)
Operator proposes to transfer, sell, assign or otherwise dispose of all or
substantially all of the assets of Operator's System, including but not
limited to any transfer of its FCC License for Operator's Service Area, or
(ii) DCC proposes to transfer, sell, assign or otherwise dispose of, directly
or indirectly, a majority of the outstanding equity in or voting interests of
DCC or Operator (the transactions referred to in clauses (i) and (ii) being
referred to as a Transfer), other than (x) a Transfer to an Affiliate of DCC,
(y) a Transfer resulting from a Change of Control of Operator's System as a
result of the circumstances set forth in subsection 9(d)(ii) with respect to
DCC or (z) a Transfer in connection with the direct or indirect sale by DCC
and/or Operator to a single purchaser of the Operator's System and Cellular
Systems for two or more other metropolitan or rural service areas, the
following will apply:
(a) DCC and/or Operator will send a written notice of the proposed
Transfer (a "Transfer Notice") to AirTouch, which notice will describe the
assets or equity securities (the "Interest") proposed to be Transferred.
(b) During the 20-day period following delivery of the Transfer
Notice to AirTouch, Operator will not contact or initiate discussions with
(or entertain any approach from), or conduct negotiations with any Person
other than AirTouch with respect to any Transfer of the Interest.
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(c) AirTouch will have 20 days from its receipt of the Transfer
Notice to deliver to Operator its written offer to purchase the Interest
subject to the Transfer Notice (a "AirTouch Offer").
(d) If AirTouch makes an AirTouch Offer, DCC or Operator as
applicable will have the right to accept or reject the AirTouch Offer. If DCC
or Operator as applicable accepts the AirTouch Offer, the Interest will be
transferred to AirTouch subject to the terms and conditions contained in the
AirTouch Offer. If DCC or Operator rejects the AirTouch Offer, DCC or
Operator, as applicable, will be free to Transfer the Interest during the
12-month period after the date of the Transfer Notice to any other Person for
consideration having a fair market value that is no less than the fair market
value of the consideration set forth in the AirTouch Offer.
(e) If AirTouch does not make an AirTouch Offer, DCC or Operator,
as applicable, will be free to Transfer the Interest during the 12-month
period after the date of the Transfer Notice to any other Person without
limitation as to the amount of the consideration paid in respect of the
Transfer.
11. ACQUISITION OF ADDITIONAL SYSTEMS. If DCC or any of its Affiliates
acquires or obtains Control of any System that is adjacent to a System
controlled by DCC or any of its Affiliates and that is subject to an
affiliation agreement with AirTouch or any of its Affiliates (a "Future
System"), AirTouch and its Affiliates shall have an option to enter into an
affiliation agreement with DCC or its Affiliate (including a trademark
license agreement and a roaming agreement) with respect to such Future System
having substantially the same terms and conditions as this Agreement.
12. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement will
be in writing and will be deemed to have been duly given to any party (i)
when delivered personally (by courier service or otherwise), (ii) when
delivered by telecopy and confirmed by return telecopy, (iii) on the business
day after the date sent by a nationally recognized overnight courier service,
or (iv) seven days after being mailed by first-class, registered or certified
mail, postage prepaid and return receipt requested, in each case to the
applicable addresses set forth below:
If to DCC/Operator:
▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esquire
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If to AirTouch:
AirTouch Cellular
Legal Department
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President-Legal
or to such other address or telecopy number as any party may have furnished
to the other parties in writing in accordance with this Section 11(a).
(b) GOVERNING LAW. This Agreement will be governed by California
law without regard to the conflicts of laws principles thereof.
(c) AMENDMENTS. Except as provided herein, this Agreement may be
modified or amended only by an instrument in writing signed by the parties
hereto.
(d) ENTIRE AGREEMENT. This Agreement, the Exhibits and the
Trademark License Agreement constitute the entire agreement between the
parties with respect to the matters covered hereby and supersede all prior
agreements, understandings, offers and negotiations, oral or written, with
regard to the subject matter hereof. In the event of any conflict between the
terms of this Agreement and the terms of the Trademark License Agreement, the
terms of the Trademark License Agreement shall control.
(e) ASSIGNMENT: SUCCESSORS AND ASSIGNS.
(i) Except as set forth in subsection 12(e)(ii) below, no
party will be entitled to sell, assign, or transfer this Agreement or any
right or obligation hereunder without the written consent of the other party.
(ii) AirTouch may assign this Agreement to any Affiliate of
AirTouch or of AirTouch Communications, Inc. or any successor thereto whether
by merger, spin-off or otherwise (such Affiliates and successors are
sometimes individually and collectively referred to herein as a "Permitted
Assignee"). Operator may assign this Agreement to any Affiliate of DCC in
connection with the transfer, sale, assignment or other disposition of all or
substantially all of the assets of Operator's System (including Operator's
FCC License for Operator's Service Area) to such Affiliate and may assign its
rights under this Agreement to any lender as collateral security for
financing provided to Operator or DCC. If this Agreement is assigned by
AirTouch or by Operator in accordance with the provisions of this subsection
12(e)(ii), the assignor will be released from its obligations hereunder upon,
and to the extent of, the assumption of such obligations by the assignee. In
the event all of AirTouch's prospective obligations hereunder are assumed by
an assignee, all references herein to AirTouch will be deemed references to
the Person that assumes the prospective obligations of AirTouch hereunder
after the date of such assumption and in the event all of Operator's
prospective obligations hereunder are assumed by an Affiliate of DCC all
references herein to Operator will be deemed references to the Affiliate of
DCC that assumes the prospective obligations of Operator hereunder after the
date of such assumption; each such assignee shall be required to execute and
deliver
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a counterpart of this Agreement as of the date of the assignment and shall be
deemed to have made the representations and warranties of its assignor
contained herein as of the date thereof.
(iii) Subject to subsections (i) and (ii) above, all rights
and duties of the parties hereunder will inure to the benefit of their
respective successors and assigns.
(f) SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof (unless
such prohibition on unenforceability materially alters the intent of the
parties or the relative economic benefits of the parties, in which case the
materially affected party will have the right to terminate this Agreement),
and any such prohibition or unenforceability in any jurisdiction will not
invalidate or render unenforceable such provision in any other jurisdiction.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which will
constitute one and the same instrument, and will become effective when one
counterpart has been signed by each of the parties hereto and delivered, via
facsimile transmission or otherwise, to the other party.
(h) THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement
is intended to, or will, confer upon any Person other than the parties hereto
any rights or remedies hereunder.
(i) WAIVER. The observance of any term of this Agreement may be
waived only with the written consent of the party against whom such waiver is
sought to be enforced. No waiver by any party of any default with respect to
any provision, condition or requirement hereof will be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition
or requirement hereof.
(j) SETOFF. AirTouch and Operator will have the right to set off
any amounts it would otherwise be required to remit to the other under this
Agreement or otherwise against amounts due to it hereunder.
(k) NO AGENCY OR OTHER RELATIONSHIP. Neither Operator nor DCC will
have any authority, express or implied, to act as an agent of AirTouch, the
Affiliated Systems or any of their respective Affiliates for any purpose; and
AirTouch will have no authority, express or implied, to act as agent of
Operator or DCC or their respective Affiliates. Further, nothing in this
Agreement will be construed to create a partnership, agency, reseller,
franchise or other relationship between the parties, or to make either party
liable for any debts or obligations incurred by the other.
(l) INSURANCE.
(i) REQUIREMENTS. Operator will procure, and will maintain
in full force and effect, at Operator's expense, an insurance policy or
policies protecting Operator against any demand or claim with respect to
personal injury, death or property damage, or any loss, liability, or expense
whatsoever arising or occurring upon or in connection with Operator's
business, the minimum forms and amounts of which are set forth in EXHIBIT D.
All insurance policies must provide for severability of interest or cross
liability; designate AirTouch and its partners, officers, directors,
employees and agents as additional insureds (except workers' compensation);
provide that such insurance is non-contributing primary coverage with respect
to all insureds; and contain a waiver of subrogation.
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(ii) CERTIFICATES OF INSURANCE. On the Effective Date and
thereafter at least 30 days prior to the expiration of any such policy or
upon the request of AirTouch, Operator shall deliver to AirTouch certificates
of insurance evidencing the proper coverage with limits not less than those
required hereunder. All certificates will expressly provide that not less
than 30 days' prior written notice shall be given AirTouch in the event of
material alteration to, or cancellation of, the coverages evidenced by such
certificates.
(m) DISPUTE RESOLUTION. Any dispute, controversy or claim between
the parties hereto arising out of or relating to this Agreement or any
breach, termination or claim of invalidity of this Agreement will be resolved
as follows:
(i) The dispute shall first be referred to the president of
Operator or DCC, as applicable, and AirTouch's general manager for the
Southern California Region (or their respective designees). Such Persons will
confer in an attempt to reach a resolution.
(ii) Any dispute which is not resolved by such Persons
(other than a dispute, controversy, or claim arising out of or in connection
with the exercise by any party of its right to approve or consent to any
action under this Agreement, which will not be appealable to, or reviewable
by, any court or arbitrator) within 30 days of referral of such dispute shall
be resolved by binding arbitration. To the fullest extent permitted by law,
the arbitration will be conducted in accordance with the United States
Arbitration Act (Title 9, U.S. Code) and under the Commercial Rules of the
American Arbitration Association ("AAA"), and not the law of any state
relating to procedure. The arbitration shall be administered by the AAA and,
notwithstanding Rule 11 of the AAA Commercial Rules or any other rule, the
locale of the hearing will be in Los Angeles, California unless all parties
to the arbitration agree to a different locale. A single neutral arbitrator
will preside over the arbitration and decide the dispute, controversy or
claim. The parties will cooperate with each other in causing the arbitration
to be held in as efficient and expeditious a manner as practicable and in
this connection furnish such documents and make available such of their
respective personnel as the arbitrator may request. Any controversy
concerning whether an issue is arbitrable will be determined by the
arbitrator. The arbitrator will have the power to set discovery limits, to
award specific performance, and to affirm or reject the exercise of
termination rights, but will not have the authority to award damages other
than actual damages. The decision of the arbitrator will be binding and
nonappealable. Judgment upon the arbitration award may be entered in any
court having jurisdiction. The arbitrator will render a decision within 90
days after accepting an appointment to serve as arbitrator unless the parties
otherwise agree or the arbitrator makes a finding that a party has carried
the burden of showing good cause for a longer period.
(n) EQUITABLE RELIEF. The parties agree that notwithstanding
anything to the contrary contained herein, any party may seek a temporary
restraining order or a preliminary injunction from any court of competent
jurisdiction in order to prevent immediate and irreparable injury, loss or
damage pending the selection of an arbitrator to render a decision on the
ultimate merits of any dispute, controversy or claim.
(o) ATTORNEYS' FEES. The "non-prevailing party" in any arbitration
conducted hereunder (as determined by the arbitrator) will pay all costs and
expenses incurred by the "prevailing party" in preparing for and conducting
the arbitration. If a party commences an action in court against another
party with respect to this Agreement, then the prevailing party in such
action (including appeals) will
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be entitled to an award of reasonable costs and expenses of litigation,
including attorneys' fees, to be paid by the non-prevailing party. In the
event the parties settle a dispute, no party will be deemed a "prevailing
party."
(p) DOCUMENTS. Each party agrees to execute and, if necessary file
with the appropriate governmental entities, such documents as any other party
reasonably requests in order to carry out the purposes of this Agreement.
(q) FORCE MAJEURE. Neither Operator nor AirTouch will be liable or
deemed to be in default for a delay in or failure of performance of its
obligations, that results from any of the following causes beyond the
reasonable control of such party: strikes, work stoppages, shortages of
equipment, supplies or energy, malfunction or breakdown of a third Person's
equipment or telecommunications network, war, insurrection, acts of God or
the public enemy, or governmental action (whether in its sovereign or
contractual capacity). Any delay resulting from any such cause will extend
performance accordingly or excuse performance, in whole or in part, for such
time as may be reasonable; provided, however, that (i) such causes will not
excuse payment of any amounts due or owed at the time of such occurrence or
thereafter, (ii) the party asserting any such cause will promptly commence
and diligently pursue action to remedy its inability or failure to perform
hereunder, and (iii) in no event will such causes extend or excuse
performance for more than 120 consecutive days. If such failure of
performance has not been cured by the end of such 120 day period, the other
party may terminate this Agreement without further notice. Any party
asserting this Section 11(q) will promptly notify the other parties of the
occurrence and nature of any such cause and will thereafter regularly inform
the other parties of the progress of actions to remedy its inability or
failure to perform hereunder.
(r) OPERATOR RESPONSIBILITY. Operator will be solely responsible
for any and all costs, expenses, taxes and other liabilities incurred in
connection with its operations.
(s) COVENANTS AND ACKNOWLEDGMENTS.
(i) LEGAL COMPLIANCE. Operator agrees to comply with all
applicable laws and regulations, including but not limited to the rules and
regulations promulgated by the FCC under the Communications Act of 1934, as
amended, and to obtain and maintain all appropriate government Licenses
necessary to the operation of Operator's System. Operator agrees to notify
AirTouch in writing within five days after Operator becomes aware of the
commencement of any action, suit or proceeding, or of the issuance of any
order, writ, injunction, award or decree of any court, agency or other
governmental instrumentality, which could have a material effect on the
operations of the Affiliated Systems or the operations or financial condition
of Operator.
(ii) NO WARRANTY. AirTouch expressly disclaims the making
of, and Operator acknowledges that it has not received from AirTouch or any
Person acting on AirTouch's behalf, any warranty or guarantee, express or
implied, as to the extent of the market for Products or Services, or the
earnings or success resulting from Operator's operation of Operator's System
pursuant to this Agreement, or any representation, inducement, promise or
agreement, orally or otherwise, respecting this Agreement, which is not set
forth herein.
(iii) TELECOMMUNICATIONS ACT. Operator agrees not to take any
actions that would, in the reasonable judgment of AirTouch, cause Operator,
AirTouch, or any of their respective Affiliates to be in violation of the
Telecommunications Act of 1996, as amended.
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(iv) NO OTHER DUTIES. DCC and Operator acknowledge and agree
that AirTouch will have no duties to Operator in the course of performance of
this Agreement except as specifically provided herein.
(v) NO PROMISE OF RENEWAL. DCC and Operator acknowledge
that the term of this Agreement is set forth in Section 9(a) hereof with no
promise or representation as to the renewal thereof or the execution of a new
Agreement.
(t) SURVIVAL. The provisions of Sections 4 and 7 will survive the
termination or expiration of this Agreement without limitation except as
provided therein. All indemnities and payment or reimbursement obligations
made hereunder will survive the termination or expiration of this Agreement
until expiration of the longest applicable statute of limitations (including
extensions and waivers) with respect to the matter for which a party would be
entitled to be indemnified, paid or reimbursed, as the case may be.
(u) EFFECTIVENESS. The provisions of Articles 2, 3 and 4 and
Section 11(l) will be effective only on the Effective Date. This Agreement
will terminate automatically in the event of the termination of the Purchase
Agreement prior to the Effective Date. The parties hereto agree to execute
and deliver the Trademark License Agreement and the Roaming Agreements on the
Effective Date.
(v) EXPENSES. Each party to this Agreement will bear its
respective expenses incurred in connection with the negotiation, preparation
and execution of this Agreement, including all fees and expenses of agents,
representatives, counsel and accountants.
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(w) INCOME TAXES. Each party to this Agreement shall be
responsible for paying its own federal, state and local income taxes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
an Oklahoma corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Its CHAIRMAN AND CEO
-------------------------------
▇▇▇▇▇▇ CELLULAR OF IMPERIAL, INC.
an Oklahoma corporation
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Its PRESIDENT
-------------------------------
AIRTOUCH CELLULAR,
a California corporation
By
-------------------------------
Its
-------------------------------
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EXHIBIT A
Form of Trademark License Agreement
TRADEMARK LICENSE AGREEMENT
--------------------------------------------------------------------------------
THIS TRADEMARK LICENSE AGREEMENT ("Agreement"), dated as of July 31,
1998, is between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation
("Licensor") and ▇▇▇▇▇▇ CELLULAR OF IMPERIAL, INC., an Oklahoma corporation
("Licensee").
WITNESSETH:
WHEREAS, Licensor is the owner of state and federal trademark
applications for the marks AIRTOUCH and AIRTOUCH DESIGN, as defined below;
WHEREAS, AirTouch Cellular, a California corporation and a wholly owned
subsidiary of Licensor, ▇▇▇▇▇▇ Communications Corporation, an Oklahoma
corporation, and Licensee, have entered into an Affiliation Agreement dated
as of July 31, 1998 (the "Affiliation Agreement") pursuant to which
Operator's System will offer Services (each as defined in the Affiliation
Agreement) exclusively under the Licensed Marks, as defined below;
WHEREAS, Licensor believes that Licensee provides high quality goods and
services and further believes that Licensee will continue providing high
quality goods and services under the Licensed Marks; and
WHEREAS, Licensor wishes to license to Licensee, and Licensee wishes to
obtain from Licensor, the right to use certain trademarks subject to the
restrictions stated below;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, the parties hereto agree as follows:
I. DEFINITIONS
A. "LICENSED MARKS" means the trade name, "AirTouch Cellular", the
AIRTOUCH ▇▇▇▇, and the AIRTOUCH DESIGN ▇▇▇▇, as described in attached
Exhibit 1.
B. "PRODUCTS" means subscriber equipment offered for sale or lease and
any goods and other property ancillary thereto.
TRADEMARK LICENSE AGREEMENT
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C. "SERVICES" means commercial mobile radio services provided by Systems
(as defined in the Affiliation Agreement), including, without
limitation, voice and data transport, and the services ancillary
thereto.
D. "TERRITORY" means the rural service area designated by the FCC as
Cellular Market No. California 7 (California RSA #7).
II. LICENSE GRANT
A. SCOPE. Effective as of the date hereof and subject to the terms and
conditions of this Agreement, Licensor grants to Licensee a
royalty-free, nonexclusive, nontransferable, revocable license to use
the Licensed Marks in connection with the Products and Services and
the sale and marketing of the Products and Services in the Territory.
Licensor retains the right to concurrently use or license others to
use the Licensed Marks in the Territory in connection with any goods
and/or services. Licensee is expressly prohibited from adopting a
corporate or partnership name that includes, or would be confusingly
similar to, the Licensed Marks. Licensee may, only if required by
California law, file a fictitious business name statement using the
words AirTouch Cellular, but agrees to cancel and/or withdraw such
filing when this Agreement ends or is terminated.
B. QUALITY CONTROL. All uses of the Licensed Marks must appear identical
in substance to the Licensed Marks as they appear in Exhibit 1 and the
Manual as defined below. Licensee shall employ the guidelines stated
in the attached "Corporate Identity Program" (the "Manual"), and any
other reasonable standards that Licensor may adopt from time to time
and of which Licensee has been notified, when preparing any materials
in which the Licensed Marks are displayed. Prior to adopting any use
of the Licensed Marks, including without limitation, the use of the
Licensed Marks on documents, including packaging and labels of any
kind, Licensee shall deliver, at its own expense, one sample of each
manner in which the Licensed Marks are to be used to: Trademark
Counsel, AirTouch Communications, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AirTouch Quality Control"). For
purposes of this Agreement, a sample of a document means the document
itself, and a sample of a Product means either the Product or a very
clear photograph of the Product. AirTouch Quality Control shall have
ten business days from the date it receives the samples to approve or
disapprove of the sample, unless otherwise mutually agreed. The
2
TRADEMARK LICENSE AGREEMENT
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method of delivery shall be by overnight mail and the samples shall be
deemed received the next working day after Licensee sends them. In the
event that AirTouch Quality Control disapproves any sample, then
Licensee shall not employ that sample and shall immediately destroy
all other like samples, copies, and any other media bearing the
disapproved manner of use of the Licensed Marks.
C. RIGHT TO INSPECT. In addition to the foregoing, representatives of
Licensor shall have the right, at all reasonable times, to inspect the
manner in which Licensee uses the Licensed Marks and the quality of
the Products on which the Licensed Marks are affixed. Such inspection
may, at the election of Licensor, be by personal visit to Licensee or
by written request for information or samples. If the inspection is
by request for samples, then the entity conducting the inspection
shall reimburse Licensee for the cost of shipping said samples.
Licensee agrees to cooperate with such inspections. In the event that
Licensor determines that one or more manners in which Licensee uses
the Licensed Marks are inconsistent with the Manual or other standards
adopted by Licensor and of which Licensee has notice, or that the
quality of any of the Products on which the Licensed Marks are affixed
is not consistent with maintaining the goodwill inherent in the
Licensed Marks, then Licensor shall so notify Licensee, and Licensee
shall immediately cease use of any such disapproved usage of the
Licensed Marks and shall destroy all copies, samples and other media
that bear the disapproved usage. Within thirty (30) days after notice
from Licensor that a particular usage has been disapproved, Licensee
shall certify in writing to the person providing the notice that
Licensee has destroyed all media that bear said usage.
D. RECOGNITION OF OWNERSHIP. Licensee recognizes Licensor's title to the
Licensed Marks, and shall not at any time do or suffer to be done any
act or thing which will in any way impair the rights of Licensor in
and to the Licensed Marks or the goodwill inherent in said Licensed
Marks. It is understood that Licensee shall not acquire and shall not
claim any title to the Licensed Marks adverse to Licensor by virtue of
the license granted herein, or through Licensee's use of said Licensed
Marks, it being the intention of the parties that all use of the
Licensed Marks by Licensee shall at all times inure to the benefit of
Licensor. Licensee is estopped from challenging the validity of the
Licensed Marks or from setting up any claim adverse to Licensor.
3
TRADEMARK LICENSE AGREEMENT
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E. SALES OUTSIDE TERRITORY. Licensee agrees not to sell any Products
bearing the Licensed Marks with knowledge that such products are to be
resold outside the Territory. Such sales shall constitute a breach of
this Agreement if made with Licensee's knowledge. If Licensee learns
of any such sales, it shall use its best efforts to obtain possession
of said Products and to prevent such sales in the future, including
refusing to sell Products bearing the Licensed Marks to the persons or
entities responsible for the resale outside the Territory.
III. INFRINGEMENTS
A. INFRINGEMENT BY OTHERS. Licensee shall review regularly the market for
Products and Services in the Territory and shall inform Licensor
promptly of any possible infringement of, or unfair competition
affecting, the Licensed Marks which comes to the attention of
Licensee. In the event affirmative action is taken against any such
possible infringement or act of unfair competition, Licensee agrees to
assist, in whatever reasonable manner is requested, and at the expense
of the requester. Recovery of damages resulting from any such action
shall be solely for the account of Licensor. Licensee shall have no
right to initiate any action to defend the Licensed Marks.
B. ACTIONS AGAINST LICENSEE OR LICENSOR. Should either party be involved
as a defendant in judicial action under the trademark laws or with
regard to an act of unfair competition in the Territory with regard to
the Licensed Marks, the parties agree to cooperate with each other to
the greatest possible extent in defending such an action.
IV. TERM AND TERMINATION
A. TERM. This Agreement will have an initial term of twenty 20 years from
the date hereof. Thereafter, the term will automatically be extended
for additional five-year periods unless either party makes a valid
election not to renew this Agreement. An election not to renew will be
valid only if in writing and delivered to the other party at least one
year prior to the expiration of the then current term. In the event of
a termination under this Paragraph, Licensee shall immediately cease
implementation of any new or expanded uses of the Licensed Marks and
shall discontinue existing uses of the Licensed Marks in accordance
with the procedure stated in Paragraph IV E below.
4
TRADEMARK LICENSE AGREEMENT
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B. OPTIONAL TERMINATION. If Licensee fails to use one or more of the
Licensed Marks in the Territory within any given term that this
Agreement is in effect, then Licensor may, in its sole discretion,
terminate this Agreement as to the unused Licensed ▇▇▇▇ or Marks. In
the event of a termination under this Paragraph, Licensee shall
immediately cease implementation of any new or expanded uses of the
Licensed Marks and shall discontinue existing uses of the Licensed
Marks in accordance with the procedure stated in Paragraph IV E below.
C. TERMINATION FOR UNAUTHORIZED USE. If Licensee uses the Licensed Marks
for purposes other than the sale of Products and Services or promoting
the sale of Products and Services within the Territory or if Licensee
fails to use the Licensed Marks in accordance with Section II above or
any other requirements of this Agreement, then Licensor shall notify
Licensee of such failure by written notice sent by overnight courier
or facsimile, including a detailed statement of the improper use. If
Licensee fails to correct such improper use within ten (10) days after
the date of such notice, then Licensor may seek an injunction to
compel Licensee to discontinue the specific unauthorized use of the
Licensed Marks and/or terminate this Agreement by written notice sent
by overnight courier or facsimile to Licensee. In the event of such
termination, Licensee shall immediately cease implementation of any
new or expanded uses of the Licensed Marks and shall discontinue
existing uses of the Licensed Marks in accordance with the procedure
stated in Paragraph IV E below.
D. TERMINATION OF AFFILIATION AGREEMENT. If the Affiliation Agreement
terminates in accordance with the terms and conditions thereof, then
Licensor may, in its sole discretion, provide written notice of
termination of this Agreement sent by overnight courier or facsimile.
The provisions of Paragraph IV E below shall govern Licensee's
transition away from the Licensed Marks.
E. PROCEDURE UPON TERMINATION: LICENSED MARKS REMOVAL PERIOD. Upon
termination of this Agreement pursuant to Paragraphs IV A through D
above, Licensee shall have three months in which to remove the
Licensed Marks from all advertisements, packaging, labels or other
documentation created by Licensee. Within six months after
termination of this Agreement pursuant to Paragraphs IV A through D
above, Licensee shall remove the Licensed Marks from all Products and
any other tangible items on which the Licensed Marks have been affixed
5
TRADEMARK LICENSE AGREEMENT
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or used by Licensee. At the end of each such period, Licensor shall be
allowed reasonable access to Licensee's premises to observe and
inspect to insure that Licensee is in compliance with the above
requirements and that the Licensed Marks are no longer in use.
Continued use of the Licensed Marks beyond the above specified removal
periods shall constitute infringement of the Licensed Marks by
Licensee and shall give rise to Licensor's remedy of specific
performance in accordance with Paragraph IV F. Licensee shall not
adopt any trade name, trademarks, or service marks that are
confusingly similar to the Licensed Marks in the event of termination
of this Agreement. Licensee may not, after termination of this
Agreement, use the Licensed Marks in any manner, including without
limitation, indicating that Licensee was formerly called "AirTouch" or
"AirTouch Cellular."
F. LICENSOR'S REMEDY OF SPECIFIC PERFORMANCE. Licensee acknowledges that
its failure to cease use of the Licensed Marks in accordance with the
provisions of this Agreement after termination hereof will result in
immediate and irreparable harm to Licensor for which there is no
adequate remedy at law. Licensor shall be entitled to bring an action
or proceeding for specific performance, injunctive relief and/or other
equitable relief to compel Licensee to discontinue the infringement of
the Licensed Marks, to cease and desist all unauthorized use of the
Licensed Marks, to take all affirmative acts necessary to ensure
discontinuance of use of the Licensed Marks after termination of this
Agreement, and to obtain such relief as may be necessary and proper.
G. BREACH. If Licensee breaches any provision of this Agreement, Licensor
may immediately give written notice of intention to terminate within
thirty days after the date of the notice, and, unless Licensee
notifies Licensor in writing of a correction of such breach within
said period, this Agreement shall automatically terminate at the
expiration of the thirty day notice period. Licensor may inspect
Licensee's premises during the period sixty to ninety days after this
Agreement has terminated to ensure that Licensee is no longer using
the Licensed Marks. Licensor retains all of its rights and remedies
to prevent Licensee from continuing to use the Licensed Marks after
termination of this Agreement due to breach.
H. NO DAMAGES. Notwithstanding any other provision in this or any other
agreement between the parties, should this Agreement be terminated for
6
TRADEMARK LICENSE AGREEMENT
--------------------------------------------------------------------------------
any reason, neither party shall be able to claim from the other party
any actual, consequential or incidental damages.
I. CONTINUING OBLIGATIONS. Termination of this Agreement for any reason
shall not affect those obligations which, from the context hereof, are
intended to survive termination of this Agreement.
J. NO WAIVER. Any waiver by either party of a breach of any term or
condition of this Agreement shall not be considered as a waiver of any
subsequent breach of the same or any other term or condition thereof.
K. ATTORNEYS' FEES. The prevailing party in any action arising under this
Agreement shall be entitled to collect its reasonable attorneys' fees
from the non-prevailing party. In the event that any such action is
resolved by a settlement agreement, then neither party shall be deemed
the "prevailing party" and each party shall be responsible for its own
attorneys' fees. In the event of bankruptcy of one of the parties
hereto, the attorneys' fees of the nondebtor party, incurred in
dealing with a bankruptcy, shall be considered actual pecuniary loss
under 11 USC section 365(b)(1).
V. MISCELLANEOUS
A. PARAGRAPH HEADINGS. The paragraph headings are for convenience only
and shall not be deemed to affect in any way the language of the
provisions to which they refer.
B. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference
to choice of law provisions. Selection of California law as the
governing law shall not be deemed to invoke any provision of
California law which would not otherwise be applicable to the
relationship contemplated hereunder. All actions arising under this
Agreement, including without limitation, actions regarding the
interpretation or breach of the Agreement, shall be brought in the
federal or state courts of California.
7
TRADEMARK LICENSE AGREEMENT
--------------------------------------------------------------------------------
C. NOTICES. All notices or other communications hereunder to Licensor,
except as otherwise specified above, shall be sent to:
AirTouch Communications, Inc.
Legal Department
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Trademark Counsel
and if to Licensee, shall be sent to:
▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Any such notice or communication shall be in writing and shall be
deemed to have been received on the day of delivery if sent via
facsimile with confirmation of valid transmission, or after seven
calendar days from mailing if sent via certified mail, postage prepaid
or on the next business day if sent by overnight courier. Either party
may designate a new address to which notices or other communications
may be sent by giving notice to the other party.
D. SEVERABILITY. If any provision of this Agreement shall be held illegal
or invalid by any court, this Agreement shall be construed and
enforced as if such illegal or invalid provision had not been
contained herein, and this Agreement shall be deemed an agreement of
the parties to the full extent permitted by law. If any provision
shall be declared invalid or unenforceable because of its breadth,
scope or duration, such provision shall be severed from the rest of
this Agreement, and the remaining portions of the Agreement shall
remain valid and enforceable.
8
TRADEMARK LICENSE AGREEMENT
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E. ASSIGNABILITY. Licensee may not assign or sublicense any of its rights
or delegate any of its duties under this Agreement. Any attempted
assignment, sublicense, or delegation by Licensee shall be null and
void.
F. COMPLETE AGREEMENT. This Agreement, together with the Affiliation
Agreement, embodies all of the terms and conditions of the agreement
between the parties with respect to the matters set forth herein.
There are no statements, terms, conditions, representations, or
warranties which have not been embodied herein.
G. MODIFICATIONS. This Agreement may not be modified or amended, except
in a writing signed on behalf of both parties by their duly authorized
representatives which refers specifically to this Agreement.
H. FORCE MAJEURE. Neither party shall be in default under this Agreement
by reason of its delay in the performance of or failure to perform any
of its obligations herein if such delay or failure is caused by
strikes, acts of God or the public enemy, riots, incendiaries,
interference by civil or military authorities, compliance with
governmental laws, rules, and regulations, delays in transit or
delivery, or any fault beyond its control or without its fault or
negligence.
I. WAIVER. The failure of either party at any time to require performance
of any provision of this Agreement by the other party shall not be
deemed a waiver and shall not deprive that party of its full right to
require such performance in a particular instance or at any other
time. Any waiver must be in a writing executed by a duly authorized
representative of the waiving party.
J. DISPUTE RESOLUTION. Any dispute regarding this Agreement, including
without limitation, the interpretation, performance, or termination of
this Agreement, shall be handled pursuant to the dispute resolution
provisions contained in the Affiliation Agreement.
SIGNATURE ON FOLLOWING PAGE
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TRADEMARK LICENSE AGREEMENT
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized representatives as of the day and year
first set forth above.
LICENSOR:
AirTouch Communications, Inc.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
LICENSEE:
▇▇▇▇▇▇ Cellular of Imperial, Inc.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
10
EXHIBIT 1 -- LICENSED MARKS
1. The AIRTOUCH ▇▇▇▇ referred to in Paragraph I A above shall be used only
in the following manner:
AIRTOUCH-TM- or AirTouch-TM-
Licensee must use fonts from the Times or Univers families when this ▇▇▇▇ is
used on Products or in advertising for Products.
2. The AIRTOUCH DESIGN ▇▇▇▇ referred to in Paragraph IA above shall conform
to the Manual referred to in Paragraph II B above. Licensee shall always
place the letters "TM" as a superscript directly behind the letter "H" in the
AIRTOUCH DESIGN or such other designation as Licensor may direct. Licensee
may not vary the typeface, spacing, or general structure or configuration of
the AIRTOUCH DESIGN ▇▇▇▇. Licensee may employ different sizes of the
AIRTOUCH DESIGN ▇▇▇▇ so long as those different sizes conform the Manual. Use
of color in connection with the AIRTOUCH DESIGN must also conform to the
Manual.
3. The "AirTouch Cellular" trade name referred to in Paragraph I A above
shall be used on in the following manner:
AIRTOUCH CELLULAR or AirTouch Cellular
Licensee must use fonts from the Times or Univers families when this trade
name is used on Products or in advertising for Products.
4. Licensee acknowledges that the Licensed Marks as described in this
Exhibit 1 may be modified, discontinued or altered from time to time by
Licensor, at Licensor's sole discretion. Licensor shall notify Licensee in
writing of any such changes in the Licensed Marks and Licensee agrees to
comply with the changes set forth in such notice within the guidelines
established therein.
EXHIBIT B
NETWORK PERFORMANCE STANDARDS
A. ANALOG SERVICE.
DROPPED CALLS:
On an annual basis, dropped calls as a percentage of total completed calls
(system wide) must not exceed 2% as measured on a bouncing (sigma) busy
hour basis.
BLOCKED CALLS:
On an annual basis, blocked calls as a percentage of total call attempts
(system wide) must not exceed 3% as measured on a bouncing (sigma) busy
hour basis.
SYSTEM AVAILABILITY:
System availability must not drop below 99% as measured by the following
equation on an annual basis:
The amount of time that each sector is up, in minutes, is added together.
That number is divided by the number of sectors, times 60 minutes per hour,
times 24 hours per day, times 100. This equates to system availability as a
percentage of total minutes in a day.
VOICE QUALITY: (No voice quality standards available for system design at this
time)
MINIMUM PLANS, PRODUCTS, FEATURES AND SERVICES:
Voice transport, Call forwarding, Call waiting, Conference calling,
Automatic call delivery to roaming customers, Voicemail
FRAUD CONTROL
Operator will use authenticatable subscriber and network equipment and will
ensure that only authenticatable subscriber equipment is offered through
the direct and indirect distribution channels controlled by Operator
B. DIGITAL SERVICE.
TECHNOLOGY: CDMA
[Vendor: _______]
DROPPED CALLS:
On an annual basis, dropped calls as a percentage of total completed calls
(system wide) must not exceed 3% as measured on a bouncing (sigma) busy
hour basis.
BLOCKED CALLS:
On an annual basis, blocked calls as a percentage of total call attempts
must not exceed 2% as measured on a bouncing (sigma) busy hour basis.
SYSTEM AVAILABILITY:
System availability must not drop below 99% as measured by the following
equation on an annual basis:
The amount of time that each sector is up, in minutes, is added together.
That number is divided by the number of sectors, times 60 minutes per hour,
times 24 hours per day, times 100. This equates to system availability as a
percentage of total minutes in a day.
VOICE QUALITY: (No voice quality standards available for system design at this
time)
MINIMUM PLANS PRODUCTS, FEATURES AND SERVICES:
Voice transport, Call forwarding, Call waiting, Conference calling,
Automatic call delivery to roaming customers, Voicemail, Caller ID, Display
(text) messaging with notification
FRAUD CONTROL:
Operator will ensure that all customary authentication hardware and
software is incorporated into the network
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CUSTOMER SERVICE STANDARDS
Customer satisfaction rating:
Operator must not underperform the median performance for the AirTouch
System operating in the San Diego MSA by more than 10% in each of the
following measures as determined in any Survey: (1) call clarity, (2)
coverage, (3) service reliability, (4) ▇▇▇▇ timing and accuracy, (5)
overall satisfaction and (6) willingness to switch carriers.
Availability and responsiveness of customer service representatives:
Calls to customer service are answered within an average of 30 seconds
(Average Speed of Answer) or less.
Customer service representatives must be available to respond to customer
inquiries 24 hours per day, 7 days per week and 365 days per year.
The average rate of abandoned calls to customer service must be less than
6% of calls received as measured on an annual basis.
INTERCARRIER ROAMER SERVICE AGREEMENT
THIS AGREEMENT, dated as of the 31st day of July, 1998, is entered
into by and between AirTouch Cellular, sometimes referred to as "ATC", and
▇▇▇▇▇▇ Cellular of Imperial, Inc., sometimes referred to as "▇▇▇▇▇▇", on behalf
of themselves and those legal entities set forth in Appendix I, which is
attached hereto and hereby incorporated herein. The entities listed in Appendix
I as the "ATC Licensees and Permittees" are herein referred to collectively as
the "ATC Markets" or individually as an "ATC Market". The entities listed in
Appendix I as the "▇▇▇▇▇▇ Licensees and Permittees" are herein referred to
collectively as the "▇▇▇▇▇▇ Markets" or individually as a "▇▇▇▇▇▇ Market". The
ATC Markets and ▇▇▇▇▇▇ Markets may be generically referred to herein as
"Markets" or the "Market". ATC and ▇▇▇▇▇▇ are sometimes herein referred to
collectively as the "Parties" and individually as a "Party".
RECITAL
WHEREAS, ATC and ▇▇▇▇▇▇ have entered into an Affiliation Agreement dated as
of July 31, 1998 (the "Affiliation Agreement") pursuant to which "Operator's
System" will offer "Products" and "Services" exclusively under the "Licensed
Marks" (each as defined in the Affiliation Agreement); and
WHEREAS, the Parties desire to make arrangements to facilitate the
provision of wireless service to Roamers in accordance with the terms and
conditions of this Agreement and Appendices I-III, which are attached hereto and
hereby incorporated herein. The "General Terms and Conditions for Roaming,"
attached hereto as Appendix II, and "Operating Procedures," attached hereto as
Appendix III are sometimes referred to herein as the "General Terms".
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and intending to be legally bound hereby, the Parties do hereby agree as follows
1. Under the conditions set forth herein, to be bound by the General
Terms attached hereto, as they may be properly amended from time to time.
2. The Home Carrier shall be liable to the Serving Carrier in accordance
with Paragraph 2.1 of Appendix II for all of the service and pass-through
charges for all calls chargeable to the Home Carrier's customers (including the
customers of its resellers) and invoiced by the Serving Carrier to the Home
Carrier in accordance with Appendix III. "Home Carrier" and "Serving Carrier"
are defined in Appendix II.
3. In the event that roaming becomes technically or administratively
impracticable in either Party's Market(s), or if an unacceptable level of
unauthorized use occurs, either Party may suspend roamer service to its
customers in the manner specified in Paragraph 4.2 of Appendix II. The Serving
Carrier, when communicating with the customers of the Home Carrier, will use an
explanation for the suspension of service mutually agreed upon by the Parties.
In the specific event that the impracticability of roamer service is caused by
the testing or commercial service of a carrier other than the Serving Carrier
operating in the area served by the Serving Carrier and where the Serving
Carrier is not, in any respect, responsible for the impracticability, the Home
Carrier may include with its notice to its customers the following statement:
"NOTICE
Previously you have been able to obtain service as a roamer in [Serving
Carrier's Affected Service Area] on [Serving Carrier's] system. Presently, you
may experience difficulty in using your service in [Serving Carrier's Affected
Service Area]. This is because [interfering carrier] is now [testing/operating]
its wireless system in [Serving Carrier's Affected Service Area], and the
difficulty is not the fault of [Serving Carrier]."
2
INTERCARRIER ROAMER SERVICE AGREEMENT
THIS AGREEMENT, dated as of the 31st day of July, 1998, is entered
into by and between AirTouch Cellular, sometimes referred to as "ATC", and
▇▇▇▇▇▇ Cellular of Imperial, Inc., sometimes referred to as "▇▇▇▇▇▇", on behalf
of themselves and those legal entities set forth in Appendix I, which is
attached hereto and hereby incorporated herein. The entities listed in Appendix
I as the "ATC Licensees and Permittees" are herein referred to collectively as
the "ATC Markets" or individually as an "ATC Market". The entities listed in
Appendix I as the "▇▇▇▇▇▇ Licensees and Permittees" are herein referred to
collectively as the "▇▇▇▇▇▇ Markets" or individually as a "▇▇▇▇▇▇ Market". The
ATC Markets and ▇▇▇▇▇▇ Markets may be generically referred to herein as
"Markets" or the "Market". ATC and ▇▇▇▇▇▇ are sometimes herein referred to
collectively as the "Parties" and individually as a "Party".
RECITAL
WHEREAS, ATC and ▇▇▇▇▇▇ have entered into an Affiliation Agreement dated as
of July 31, 1998 (the "Affiliation Agreement") pursuant to which "Operator's
System" will offer "Products" and "Services" exclusively under the "Licensed
Marks" (each as defined in the Affiliation Agreement); and
WHEREAS, the Parties desire to make arrangements to facilitate the
provision of wireless service to Roamers in accordance with the terms and
conditions of this Agreement and Appendices I-III, which are attached hereto and
hereby incorporated herein. The "General Terms and Conditions for Roaming,"
attached hereto as Appendix II, and "Operating Procedures," attached hereto as
Appendix III are sometimes referred to herein as the "General Terms".
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and intending to be legally bound hereby, the Parties do hereby agree as follows
1. Under the conditions set forth herein, to be bound by the General Terms
attached hereto, as they may be properly amended from time to time.
2. The Home Carrier shall be liable to the Serving Carrier in accordance
with Paragraph 2.1 of Appendix II for all of the service and pass-through
charges for all calls chargeable to the Home Carrier's customers (including the
customers of its resellers) and invoiced by the Serving Carrier to the Home
Carrier in accordance with Appendix III. "Home Carrier" and "Serving Carrier"
are defined in Appendix II.
3. In the event that roaming becomes technically or administratively
impracticable in either Party's Market(s), or if an unacceptable level of
unauthorized use occurs, either Party may suspend roamer service to its
customers in the manner specified in Paragraph 4.2 of Appendix II. The Serving
Carrier, when communicating with the customers of the Home Carrier, will use an
explanation for the suspension of service mutually agreed upon by the Parties.
In the specific event that the impracticability of roamer service is caused by
the testing or commercial service of a carrier other than the Serving Carrier
operating in the area served by the Serving Carrier and where the Serving
Carrier is not, in any respect, responsible for the impracticability, the Home
Carrier may include with its notice to its customers the following statement:
"NOTICE
Previously you have been able to obtain service as a roamer in [Serving
Carrier's Affected Service Area] on [Serving Carrier's] system. Presently, you
may experience difficulty in using your service in [Serving Carrier's Affected
Service Area]. This is because [interfering carrier] is now [testing/operating]
its wireless system in [Serving Carrier's Affected Service Area], and the
difficulty is not the fault of [Serving Carrier]."
2
4. Notices required to be sent pursuant to this Agreement shall comply
with Section X of Appendix II, "Notices and Authorized Representatives", and
shall be addressed as follows:
▇. ▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
and
B. AirTouch Cellular
c/o Director Revenue Assurance
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. ATC (as to its Markets only) and ▇▇▇▇▇▇ (as to its Markets only)
represent and warrant that (a) they have been authorized by the ATC Markets and
▇▇▇▇▇▇ Markets, respectively, to enter into this Agreement on such Markets'
behalf and (b) each of the ATC Markets and ▇▇▇▇▇▇ Markets is a Licensee or
Permittee of the domestic wireless telecommunications system(s) and station(s)
shown on the attached Appendix I serving the area(s) referred to therein. ATC
and ▇▇▇▇▇▇ may hereafter each seek to amend Appendix I of this Agreement to
delete an ATC Market or ▇▇▇▇▇▇ Market, upon written notice to the other Party
and with the consent of the other Party, which consent shall not be unreasonably
withheld or delayed. ATC and ▇▇▇▇▇▇ may hereafter each seek to amend Appendix I
of this Agreement to add an ATC Market or ▇▇▇▇▇▇ Market, respectively, upon
written notice to the other Party and with the consent of the other Party, which
consent may be withheld at the sole discretion of the other Party. Approved
additions and deletions of Markets shall become effective between such
additional Markets and all the existing Parties hereto, as of the date set forth
in an agreed-upon amended Appendix I.
3
6. This Agreement and the Affiliation Agreement constitute the entire
agreement between the Parties with respect to the subject matter hereof, and
supersedes all other prior agreements and undertakings, both oral and written,
among the Parties, or any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
AirTouch Cellular ▇▇▇▇▇▇ Cellular of Imperial, Inc.
By: By:
----------------------- -----------------------------
Name: Name:
--------------------- ---------------------------
Title: Title:
-------------------- --------------------------
4
Effective Date
Appendix
July 31,
APPENDIX I TO
INTERCARRIER ROAMER SERVICE AGREEMENT
BETWEEN
AIRTOUCH CELLULAR
and
▇▇▇▇▇▇ CELLULAR OF IMPERIAL NC.
ATC LICENSEES AND PERMITTEES
SYSTEM STATION MSA/ LICENSE
COVERED SID/BID RSA GRANTED
-------------------------------------------------------------------
ARIZONA
AirTouch KNKA205 Phoenix 1/83
Communications
00048
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AZ-3 9/89
01028
KNKQ399 Nogales AZ-6 7/90
30936
TuCell
Ltd Partnership
KNKA286 Tucson 4/85
00140
Coconino, Arizona
RSA Ltd Partnership
KNKN232 Flagstaff AZ-2 6/89
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
RSA Ltd Partnership
KNKN256 Yuma AZ-4 7/89
01030
Gila River
Cellular Partnership
KNKN498 Casa Grande AZ-5 3/90
01032
5
COLORADO
AirTouch
Communications
KNKA220 Denver 6/83
00058
KNKA371 Colorado Springs 10/85
00180
30994
KNKA714 Fort ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ 1/98
00336
KNKA526 ▇▇▇▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ No3
Ltd Partnership
KNKN398 ▇▇▇▇▇▇ CO-3 12/89
01088
30832
IDAHO
Boise City MSA
Ltd Partnership
KNKA490 ▇▇▇▇▇ ▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ No. 1
Ltd Partnership
KNKN289 N. Idaho Boundary 9/89
01164
26196
Idaho RSA No. 2
Ltd Partnership
KNKN599 Idaho 5/90
01166
Idaho RSA 3
Ltd Partnership
KNKN400 ▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Communications
KNKN592 ▇▇▇▇▇▇ 4/90
01170
KNKQ387 Butte 12/89
02076
6
IOWA
Des Moines
Cellular Partnership
KNKA402 Des Moines 6/86
00150
Iowa RSA ▇▇. ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇ 7 Ltd
Partnership
KNKN611 ▇▇▇▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇. ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 11/89
01230
CALIFORNIA
LA SMSA KNKA 209 Los Angeles 6/13/84
Ltd 00002
AirTouch KNKA 235 San Diego 8/13/85
Cellular 00004
Sacramento
Valley KNKA 273 Sacramento 7/22/85
L.P. 00112
KNKA378 Stockton 11/18/86
00224
KNKA397 Modesto 2/04/87
30520
00294 Chico
30180 Sierra
30184 Modoc
Oxnard Ventura
Simi L.P.KNKA 328 Ventura/ 7/22/84
00002 Simi Valley
Redding KNKA 751 Redding 5/26/88
MSA L.P. 30374
7
NEVADA
Washoe KNKA 462 Reno 1/6/87
Communications Co.
00498 Reno
30186 White Pine
30188 Mineral
30190 Storey
MINNESOTA
Duluth MSA
Ltd Partnership
KNKA439 Des Moines 1/98
00316
AirTouch
Communications
KNKA219 Minneapolis-St. ▇▇▇▇ 5/90
00026
KNKN539 ▇▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
AirTouch
Communications
KNKA272 Albuquerque 10/84
00110
KNKN264 New Mexico ▇ - ▇▇▇ ▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇ ▇-▇▇▇▇▇ ▇▇ ▇▇▇ West
Ltd Partnership
KNKQ334 New Mexico 4 - Santa Fe 5/90
26148
30262
NEBRASKA
Omaha Cellular
Telephone Co
KNKA336 ▇▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
AirTouch
Communications
KNKA713 ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ 1/98
8
00330
KNKA714 ▇▇▇▇▇ ▇▇▇▇▇ ▇/▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇
Ltd Partnership
KNKN527 North Dakota 3 - ▇▇▇▇▇▇ 3/90
01552
OREGON
AirTouch
Communications
KNKA465 ▇▇▇▇▇▇ - Springfield 1/98
00328
KNKA212 Portland 5/83
00030
KNKN446 Salem 8/87
30748
KNKN411 Oregon 1 - Clatsop 1/90
01600
KNKN413 Oregon 4 - Lincoln 1/90
01606
UTAH
AirTouch
Communications
KNKA259 Salt Lake City 4/84
00094
03004
KNKA728 Provo - Orem 1/98
00488
KNKA586 Utah 1 - Box Elder 4/90
01734
Wasatch Utah RSA 2
Ltd Partnership
KNKN242 Utah 2 - ▇▇▇▇▇▇ 7/89
01736
WASHINGTON
Seattle SMSA
Ltd Partnership
KNKA680 Bremerton 1/98
00276
KNKA215 Seattle - Everett 6/83
9
00006
KNKA280 Tacoma 10/84
KNKN359 Washington 1 - Clallam 11/89
01774
26192
Olympia Cellular
Ltd Partnership
KNKA719 Olympia 1/98
00456
26166
26178
AirTouch
Communications
KNKA545 Bellingham 1/98
00258
KNKN238 Washington 2 - Okanagon 6/89
01776
26194
KNKN243 Washington 3 - Ferry 7/89
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Ltd Partnership
KNKA408 Spokane 6/85
00222
Grays Harbor - ▇▇▇▇▇
Cellular Ltd Partnership
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ 5/90
01780
WYOMING
AirTouch
Communications
KNKA733 Casper 4/87
00284
KNKN305 Wyoming 4 - Niobrara 9/89
01830
KNKN202 Wyoming 5 - Converse 1/89
00284
See Attached Technical Data Sheets for Details
10
▇▇▇▇▇▇ LICENSEES AND PERMITTEES
MARKET/
SYSTEM STATION SERVICE LICENSE
COVERED SID/BID AREA GRANTED
------- ------- ------- -------
▇▇▇▇▇▇ Cellular KNKN205 Imperial Valley
of Imperial 1072 CA RSA - 7
See Attached Technical Data Sheets for Details
▇▇▇▇▇▇ Cellular of Imperial, Inc. AirTouch Cellular
By: By:
------------------ -------------------
Name: Name:
---------------- -----------------
Title: Title:
--------------- ----------------
11
APPENDIX II TO
INTERCABRIER ROAMER SERVICE AGREEMENT
BETWEEN
AIRTOUCH CELLULAR
AND
▇▇▇▇▇▇ CELLULAR OF IMPERIAL, INC.
GENERAL TERMS AND CONDITIONS FOR ROAMING
DEFINITIONS
A. The "Agreement" means the Intercarrier Roamer Service Agreement,
including all appendices attached thereto, to which these General Terms and
Conditions for Roaming are also attached.
B. The phrase "wireless service" means domestic public wireless
telecommunications service.
C. "Home Carrier" means a Party who is providing wireless service(s) to
its registered customers in a geographic area where it holds a license or permit
for a domestic public wireless telecommunication system and station.
D. "Serving Carrier" means a Party (or its Markets) who provides wireless
service for registered customers of another Party (or its Markets) while such
customers are out of their home Market's geographic area and in a Market for
which the Serving Carrier holds a license or permit for a domestic public
wireless telecommunication system and station.
E. "Roamer" means a customer who seeks wireless service in a geographic
area outside of the area served by the Party (or a Market) with whom it is
registered.
F. "Authorized Roamer" means a Roamer using equipment with the NPA/NXX
combinations listed in accordance with the "Exchange of Information" Article III
below for whom the Serving Carrier has received authorization from the Home
Carrier in accordance with the provisions of said Article III.
12
G. "CIBER" means Cellular Intercarrier Billing Exchange Record.
H. "CIBER Record" means the publication prepared by CIBERNET Corporation,
a wholly-owned subsidiary of the Cellular Telecommunications Industry
Association, as a service to the wireless service industry.
I. "ESN" means the Electronic Serial Number that is "burned" in the
customer's wireless telephone set by the manufacturer.
J. "MIN" means the "Mobile Identification Number" which is assigned by a
Home Carrier to each of its registered customers.
K. "NPA/NXX combinations" means the six-digit numerical combinations
assigned by regulatory authorities to identify the area code and prefix for
wireless service.
L. "Authorized Receipt Point" or "ARP" means the location or address of
the entity designated by the "Home Carrier" as the delivery point for its CIBER
records and authorized agent for performing CIBER edits.
M. "Clearinghouse" means that entity which provides for the exchange of
CIBER Records and performs industry accepted CIBER edits.
N. Unless specifically provided otherwise in the Agreement, all words and
phrases defined in the CIBER Record shall have the meaning herein that they have
therein.
O. "Positive File" means the file containing information regarding
Authorized Roamers who are resident in a VLR as a result of a positive
notification to a verification request and in accordance with Article III
hereof.
P. "Positive Validations/Verification" (or "PV") is the process by which
a Roamer becomes an Authorized Roamer as a result of pre-call verification by
the Serving Carrier of the status of the Roamer, including Verification
Requirements and Service Requirements provided by the Home System. Although
neither Party is obligated to provide validation through a specific method, the
preferred pre-call verification method as of the date of this contract is
through the use of IS-41 messaging via SS7 transport.
13
Q. "Verification Requirements" is the set of parameters that defines an
Authorized Roamer as sent by the Home Carrier, including but not limited to, the
period of authorization.
R. "Service Requirements" are features, restrictions, and auxiliary
services sent by the Home Carrier to the Serving Carrier. These Service
Requirements specifically define an Authorized Roamer's service profile,
including, but not limited to, origination and termination capabilities, and
long distance dialing capabilities or restrictions.
S. "VLR" or "Visitor Location Register" is the location register used by
a wireless switch to retrieve information for handling visiting subscriber
information, including allowed features, and inbound and outbound calling
capabilities.
I. PROVISION OF SERVICE
1.1 Each Party shall provide, to any Authorized Roamer who so
requests, wireless service in accordance with rates as set forth in Attachment B
hereto and with the terms and conditions of this Agreement.
1.2 Notwithstanding anything in this Agreement to the contrary, if a
Serving Carrier suspends or terminates roamer service to an Authorized Roamer in
accordance with the terms of this Agreement, such suspension or termination
shall not affect the rights and obligations of the Parties for roamer service
furnished hereunder prior to such termination or suspension.
1.3 In connection with its service to Roamers, no Serving Carrier
shall use recorded announcements or other inducements for an Authorized Roamer
to discontinue the wireless service of its Home Carrier or, unless otherwise
authorized herein, Roamer's use of a Serving Carrier's system.
II. DIVISION OF REVENUE
2.1 Each Home Carrier, whose customers (including the customers of
its resellers) receive wireless service(s) from a Serving Carrier as Authorized
Roamers
14
under this Agreement, shall pay to the Serving Carrier who provided such
wireless service(s) the rates and charges set forth in Attachment B.
III. EXCHANGE OF INFORMATION
3.1 Attachment A to this Appendix II is a list furnished by the
respective Parties of the valid NPA/NXX combinations used by their respective
customers. These NPA/NXX combinations shall be accepted by the other Parties.
Each NPA/NXX combination is and shall be within the entire line range
(0000-9999), or a specified portion thereof, in accordance with Appendix III.
Each Party shall be responsible for all ▇▇▇▇▇▇▇▇ properly made under this
Agreement to any number listed by such Party within the range or ranges
specified by it in Attachment A. Additions, deletions, or changes to NPA/NXX
combinations and line number range(s) for their respective customers shall be
sent by each Party to the other in the form of an amendment to Attachment A,
with an effective date as defined in Appendix III.
3.2 Each Party hereby agrees to indemnify the other Party (and the
other Party's Markets), together with their partners and any and all of their
officers, directors, employees, agents and/or affiliates, against, and hold them
harmless from, any and all claims, suits, demands, losses and expenses,
including attorneys' fees and disbursements, which may result in any way
whatsoever from the indemnified Party's denial of Roamer or local wireless
service to any wireless telephone which has been identified by the
indemnifying Party as not being authorized to receive service.
3.3 To control fraudulent Roamer usage, each Party is required to use
a Positive Validation/Verification ("PV") system provided by a mutually agreed
upon validation/verification service in all Markets set forth in Appendix I.
Each Party shall provide to the other Party a list of all Markets and their PV
status within the technical data sheet which is included with Attachment A.
Attachment A shall be promptly updated as changes occur in the PV status of any
Market. The Parties shall cooperate in good faith to control fraudulent Roamer
usage in their Markets. The Parties agree that calls completed
15
by a Serving Carrier after a PV request has determined that a Roamer is not a
valid subscriber of the Home Carrier or is unauthorized for service by the
Serving Carrier, shall be the sole responsibility of the Serving Carrier. PV
requests will be made on all MIN/ESN combinations observed by a Serving Carrier.
The Parties understand that, at the time of the execution of this Agreement, the
▇▇▇▇▇▇ Market is not using a system which provides Positive
Validation/Verification. ▇▇▇▇▇▇ agrees to provide Positive
Validation/Verification to AirTouch customers within six (6) months of the
execution of this Agreement, and until such time, shall be solely responsible
for calls completed within the ▇▇▇▇▇▇ Market which are deemed by AirTouch to be
fraudulent or invalid, and AirTouch will not be responsible for payment of same.
3.4 All information not of public record that is exchanged pursuant
to this Agreement shall be treated as confidential. Parties obtaining such
confidential information through this Agreement shall use it only as necessary
to carry out the purposes of this Agreement or as necessary to comply with
federal, state or local law. Parties obtaining confidential information through
this Agreement shall not disclose its contents except as necessary to its duly
authorized agents to carry out the purposes of this Agreement or as necessary to
comply with federal, state or local law. The obligation to protect the
confidentiality of information shall survive the termination of the agreement
for a period of five years.
IV. BILLING
4.1 Each Home Carrier shall be responsible for billing to, and
collecting from, its own customers all charges that are incurred by such
customers as a result of service provided to them as Authorized Roamers by the
Serving Carrier. The Home Carrier shall also be responsible for billing its
customers for, and remitting to, the federal government all federal excise tax
that may be due in connection with the service being billed by it to its
customers. while the Serving Carrier will be responsible for the computation and
remittance of all state and local taxes, each Home Carrier shall be liable
16
to the Serving Carrier for all such state and local taxes remitted by the
Serving Carrier, regardless of whether these amounts are paid to the Home
Carrier by its customers.
4.2 The Parties will cooperate in order to minimize fraudulent or
other unwarranted use of theft systems. If any Party decides that, in its sole
judgment, despite due diligence and cooperation pursuant to the preceding
sentence, fraudulent or other unwarranted use has reached an unacceptable level
of financial loss, such Party may provide a written request that all or a
portion of its NPA/NXX's be removed. The Serving Carrier will comply with this
request within five (5) business days of receiving the request. At such time as
the Home Carrier would like to have its NPA/NXX's reinstated in the Serving
Carrier's switch(es), the Home Carrier will provide the Serving Carrier a
written request to reload the NPA/NXX's previously removed.
4.3 Each Serving Carrier who provides wireless service to an
Authorized Roamer pursuant to this Agreement shall forward roaming billing
information for each Market listed in Appendix I, on at least a weekly basis, in
accordance with the procedures and standards set forth in the CIBER Record, to
the Home Carrier's Authorized Receipt Point. Except for Serving Carriers
utilizing the CIBERNET Corporation Net Settlement Program, each Serving Carrier
who provides wireless service to an Authorized Roamer pursuant to this Agreement
shall send the Home Carrier a paper invoice within the time period specified in
Appendix III. This invoice shall reflect all charges relating to service for
which Authorized Roamer billing information was forwarded to the Home Carrier
during the previous "Billing Period", as defined in Appendix III. The Serving
Carrier will use the information provided by its Clearinghouse for invoice
preparation and support. The Home Carrier will only pay for Authorized Roamer
charges based on the settlement report provided by its Clearinghouse and
pursuant to the provisions of Section 4.1 and Attachment B hereto.
4.4 Where the Authorized Roamer billing information required to be
provided by the Serving Carrier in accordance with Paragraph 4.3 above is not in
17
accordance with the CIBER Record, the Home Carrier may return the defective
record to the Serving Carrier as provided in the CIBER Record. Returning the
defective record will be in accordance with CIBER Record established procedures.
The Serving Carrier may correct the defective record and return it to the Home
Carrier for billing, provided that the time period from the date of the call to
the receipt of the corrected record does not exceed the time period specified
under "Message Date Edit" in Appendix III.
4.5 No credit for insufficient data or defective records except as
provided in Paragraph 4.4 above, shall be permitted, unless mutually agreed upon
by ▇▇▇▇▇▇ and ATC. Any credit that is requested by the Home Carrier must be
fully documented and submitted utilizing the format set forth in Attachment C.
V. SETTLEMENT
5.1 Each Party will settle its accounts with the other Parties on the
basis of billing information received pursuant to Section IV hereof as of the
"Close of Billing", as that phrase is defined in Appendix III. The Home Carrier
shall remit to the Serving Carrier's designated account by wire transfer or
check such amounts as are due to the Serving Carrier as of the Close of Billing.
Carriers utilizing net settlement procedures set forth in the CIBER Record are
not required to submit a paper invoice and will make payments in accordance with
such net settlement procedures.
5.2 Any payment which is received later than the date permitted in
Appendix III shall be subject to a late charge equal to that set forth in
Appendix III. The only exception to this requirement shall be late payments
which are delayed in forwarding through circumstances which are beyond the
control of the Home Carrier and are consented to by the Serving Carrier, which
consent shall not be unreasonably withheld.
VI. TERM AND TERMINATION OF AGREEMENT
6.1 This Agreement shall have a term commencing on the date first
written above and continuing for a period of five years. Thereafter, this
Agreement shall
18
renew automatically on a year-to-year basis unless either Party terminates the
Agreement by providing written notice to the other Party at least 90 days prior
to the conclusion of the original or any subsequent term. After ten years, the
Agreement may be terminated by either Party at any time upon 90 days prior
written notice.
6.2 This Agreement may be terminated by either Party upon written
notice to the other of a Default (as defined in Section VII) by the other Party.
6.3 In the event of a change by state or federal licensing
authorities barring or severely impairing the provisioning of wireless service
to Roamers by either Party, which, individually or in the aggregate, is material
to the business of the affected Party, this Agreement may be terminated
immediately upon written notice from one Party to the other Party.
6.4 The termination of this Agreement shall not affect the rights and
liabilities of the Parties under this Agreement with respect to all Authorized
Roamer charges incurred prior to the effective date of such termination.
VII. DEFAULT; DISPUTE RESOLUTION
7.1 A Party will be in default under this Agreement upon the
occurrence of any of the following events:
(a) A material breach of any term of this Agreement, if such
breach shall continue for thirty (30) days after receipt of written notice
thereof from the non-breaching Party;
(b) Voluntary liquidation or dissolution or the approval by
management, board of directors, stockholders, or owners of a Party of any
plan or arrangement for the voluntary liquidation or dissolution of the
Party;
(c) A final order by the Federal Communications Commission
("FCC") revoking or denying renewal of CMRS licenses or permits granted to
such Party which, individually or in the aggregate, are material to the
business of such Party;
19
(d) Such Party (i) filing, pursuant to a statute of the United
States or of any state, a petition for bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee for all or a
portion of such Party's property, (ii) has filed against it, pursuant to a
statute of the United States or of any state, a petition for bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or
trustee for all or a portion of such Party's property, provided that within
sixty (60) days after the filing of any such petition such Party fails to
obtain a discharge thereof, or (iii) making an assignment for the benefit
of creditors or petitioning for, or voluntarily entering into, an
arrangement of similar nature, and provided that such filing, petition, or
appointment is still continuing; or
(e) Any termination or expiration of the Affiliation Agreement;
provided however that if the Affiliation Agreement is terminated for any
reason prior to the fifth anniversary of its effective date (the "Five Year
Date"), ▇▇▇▇▇▇ agrees that AirTouch may, if it so elects in its sole
discretion, continue any or all of this Agreement until the Five Year Date.
▇▇▇▇▇▇ further agrees that if ▇▇▇▇▇▇ proposes to effect a Transfer (as
defined in the Affiliation Agreement) prior to the Five Year Date that
would result in a Change of Control of Operator's System (each as defined
in the Affiliation Agreement), if AirTouch so elects in its sole
discretion, such Transfer will be subject to the condition (which may not
be waived) that the transferee assume and agree to perform any or all of
▇▇▇▇▇▇'▇ obligations under this Agreement and that this Agreement continue
until the Five Year Date notwithstanding any termination of the Affiliation
Agreement.
7.2 All claims and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement, including, but not
limited to a claim based on or arising from an alleged tort, shall be resolved
as provided in this Section 7.2. It is the intent of the Parties that any
disagreements be resolved amicably to the greatest extent possible.
20
7.2.1 If a disagreement cannot be resolved by the
representatives of the Parties with day-to-day responsibility for this
Agreement, such matter shall be referred to a senior-level manager of each of
the Parties. The senior-level managers shall conduct face-to-face negotiations
at a neutral location or such location as shall be mutually agreed upon. If
these representatives are unable to resolve the dispute within ten business days
after either Party requests the involvement of the senior-level managers, then
either Party may, but is not required to, refer the matter to mediation or
arbitration, as applicable in accordance with Sections 7.2.2 and 7.2.3
7.2.2 In any case where the amount claimed or at issue is One
Million Dollars ($1,000,000) or more and the Parties are unsuccessful in
resolving the disagreement, the Parties agree to submit the disagreement to
non-binding mediation upon written notification by either Party. The Parties
shall mutually select an independent mediator experienced in telecommunications
systems disputes. The specific format for the mediation shall be left to the
discretion of the mediator. If mediation does not result in resolution of the
disagreement within thirty days of the initial request for mediation, then
either Party may, but is not required to, refer the matter to arbitration.
7.2.3 Any disagreements not finally resolved in accordance
with the foregoing provisions of this Section 7.2 shall, upon written notice by
either Party to the other, be resolved by final and binding arbitration. Subject
to the Section 7.2.3, such arbitration shall be conducted through, and in
accordance with the rules of, JAMS/Endispute. A single arbitrator shall decide
all disputes. Each Party shall bear its own expenses (including attorneys' fees)
with respect to the arbitration, except that the costs of arbitration proceeding
itself, including the fees and expenses of the arbitrator, shall be shared
equally by the Parties. The arbitration shall take place in a neutral location
selected by the arbitrator. The arbitrator may permit discovery to the full
extent permitted by the Federal Rules of Civil Procedure or to such lesser
extent as the arbitrator determines is reasonable. The arbitrator shall be bound
by and strictly enforce the terms of
21
this Agreement. The arbitrator shall make a good faith effort to apply
applicable law, but an arbitration decision and award shall not be subject to
review because of errors of law. The arbitrator shall have the sole authority to
resolve issues of the arbitrability of any agreement, including the
applicability or running of any applicable statute of limitation. The arbitrator
shall not have the power to award damages in connection with any dispute in
excess of actual compensatory damages nor to award punitive damages nor any
damages that are excluded under this Agreement and each Party irrevocably waives
any claim thereto. The award of any arbitration shall be final, conclusive and
binding on the Parties. Judgment on the award may be entered in any court having
jurisdiction over the Party against whom the award was made. Nothing contained
in this Section 7.2.3 shall be deemed to prevent either Party from seeking any
interim equitable relief, such as preliminary injunction or temporary
restraining order, pending the results of the arbitration. The United States
Arbitration Act and federal arbitration law shall govern the interpretation,
enforcement, and proceeding pursuant to the arbitration clause in this
Agreement.
VIII. SUCCESSORS AND ASSIGNS
8.1 Neither ATC nor ▇▇▇▇▇▇ may sell, assign, transfer, or convey its
interest in this Agreement or any of its rights or obligations hereunder without
the written consent of the other Party, which consent shall not be unreasonably
withheld or delayed. No person other than a Party to this Agreement shall
acquire any right hereunder as a third-Party beneficiary or otherwise by virtue
of this agreement.
IX. NO PARTNERSHIP OR AGENCY RELATIONSHIP IS CREATED
9.1 Nothing contained in this Agreement shall constitute the Parties
as partners with one another or render any Party liable for any debts or
obligations of any other Party, nor shall any Party hereby be constituted the
agent of any other Party.
22
X. NOTICES AND AUTHORIZED REPRESENTATIVES
10.1 Unless otherwise specified in this Agreement, (a) all notices
required under this Agreement shall be given in writing; and, (b) all notices
shall be either personally delivered, delivered by overnight carrier, or sent by
certified mail return receipt requested to the persons and addresses specified
in this Agreement or to such other persons at such other addresses as either ATC
or ▇▇▇▇▇▇ may designate by written notice to the other.
10.2 For the purposes of this Agreement, each Party shall be the
authorized representative for all Markets (as identified in Appendix I) which
have a partnership, agency or other relationship to the Party.
XI. MISCELLANEOUS
11.1 The Parties agree to comply with, conform to, and abide by all
applicable and valid laws, regulations, rules and orders of all governmental
agencies and authorities, and agree that this Agreement is subject to such laws,
regulations, rules and orders.
11.2 The Parties agree to use their respective good faith efforts to
fulfill all of their obligations under this Agreement. The Parties further
recognize that to effectuate all purposes of this Agreement, it may be necessary
to enter into other agreements or to amend this Agreement, or both. In that
event, the Parties agree to negotiate with each other in good faith in an effort
to so amend this Agreement and/or enter into other agreements. In no event,
however, are the Parties obligated to amend this Agreement and/or enter into
other agreements if the efforts to negotiate in good faith do not result in such
an amendment or other agreement that is satisfactory to both Parties.
11.3 This Agreement and the Affiliation Agreement constitute the full
and complete agreement among the Parties with respect to the subject matter
hereof. Any prior agreements among the Parties with respect to this subject
matter are hereby superseded. This Agreement may not be amended, except by the
written consent of the
23
Parties. Waiver of any breach of any provision of this Agreement must be in
writing signed by AirTouch in the case of a breach by ▇▇▇▇▇▇ or a ▇▇▇▇▇▇ Market,
or by ▇▇▇▇▇▇ in the case of breach by AirTouch or an AirTouch Market, and such
waiver shall not be deemed to be a waiver of any preceding or succeeding breach
of the same or any other provision. The failure of a Party to insist upon strict
performance of any provision of this Agreement or any obligation under this
Agreement shall not be a waiver of such Party's right to demand strict
compliance therewith in the future.
11.4 The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or limit
the scope, extent or intent of this Agreement or any provision thereof.
11.5 This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same Agreement.
XII. CHOICE OF LAW
12.1 Except to the extent governed by United States law that preempts
state law, this Agreement shall be interpreted under and governed in accordance
with the domestic laws of the State of California, irrespective of that State's
conflict of laws principles.
24
[ATTACHMENT A]
CIBER RECORD
METHODS AND PROCEDURES
The following information is furnished pursuant to Paragraph 3.1 of
Appendix II to the Intercarrier Roamer Service Agreement between the Parties:
--------------------------------------------------------------------------------
NPA/NXX LINE RANGE SID CODE CITY START DATE END DATE
--------------------------------------------------------------------------------
SEE ATTACHED TECHNICAL DATA SHEET
▇▇▇▇▇▇ Cellular of Imperial, Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Issue Date:
------------------------
(The effective date shall be
that date defined in Paragraph 7 of
Appendix III.)
25
[ATTACHMENT A]
CIBER RECORD
METHODS AND PROCEDURES
The following information is furnished pursuant to Paragraph 3.1 of
Appendix II to the Intercarrier Roamer Service Agreement between the Parties:
--------------------------------------------------------------------------------
NPA/NXX LINE RANGE SID CODE CITY START DATE END DATE
--------------------------------------------------------------------------------
SEE ATTACHED TECHNICAL DATA SHEET
AirTouch Cellular
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Issue Date:
------------------------
(The effective date shall be
that date defined in Paragraph 7 of
Appendix III.)
26
[ATTACHMENT B]
ROAMING RATES AND SERVICE CHARGES
The following rates and charges shall apply to the wireless services
provided pursuant to the terms and conditions of this Agreement:
Basic Rates:
I. Airtime Rate per Minute: The initial rate per billable minute shall be
$0.50 for each party. On each anniversary of this Agreement (each a "Reset
Date") the roaming rate that the Home Carrier pays to the Serving Carrier
shall be recalculated by multiplying the rate then in effect for such Home
Carrier by a fraction, the numerator of which shall be the product of the
total billable minutes (set forth on the GTE TSI Settlement Reports) less
billed fraud minutes (per settled fraud claims for the same period) of
customers of the Home Carrier system roaming in the Markets of the Serving
Carrier during the twelve month period ending on the date that is twelve
months prior to the Reset Date (the "Total Net Billable Minutes")
multiplied by 1.1, and the denominator of which shall be the Total Net
Billable Minutes of customers of the Home Carrier system roaming in the
markets of the Serving Carrier during the twelve month period ending on the
Reset Date, provided that in no event will the applicable roaming rates be
(i) reduced on any given Reset Date by more than 10%, (ii) increased, or
(iii) reduced below a rate of $0.20. The recalculated roaming rates will be
rounded down to the nearest whole cent (for example, $0.48765 will be
rounded to $0.48). The effective date of any new rates will be thirty (30)
days after the Reset Date.
II. Daily Surcharge per Roamer: $0.00
III. Additional charges as applicable:
International and Domestic Long Distance Rate: 100% pass through at the
rates charged by the long distance carrier.
27
[ATTACHMENT C]
CREDIT REQUEST
Home Carrier____________________________________________________________________
Serving Carrier_________________________________________________________________
Date of Invoice_________________________________________________________________
Date of Rated Usage Record______________________________________________________
Data____________________________________________________________________________
Batch # and Date________________________________________________________________
Number of Records_______________________________________________________________
Amount of Invoice Not Justified $_______________________________________________
(Airtime & Toll Charges, Other Charges & Taxes)
_________Payment Withheld ______Charge Back
Reasons for Withholding Payment or Charge Back
______ 1. Invoice is inconsistent with the Rated Usage Record Data with
respect to
_____ a. Taxes;
_____ b. Other pass-through charges;
_____ c. Wireless service charges;
_____ d. Percentage of wireless service;
_____ e. Other (see attached reports)
_____ 2. Rated Usage Record Data is incomplete for the charges on the
attached sheet
_____ 3. NPA/NXX combination is not on the list authorized
by the Home Carrier
Mobile ID Number__________________________________
Electronic Serial Number__________________________
_____ 4. Charges for Roamer usage specified on the attached sheet that are
not authorized by the Home Carrier;
_____ 5. Batch totals and detail charges do not balance or batch is out of
sequence.
______ 6. CIBER rejects
______ 7. Other (specify below)
Home Carrier:
Date By:
------------------- -------------------------
Name:
-------------------------
Title:
------------------------
Effective Date of
Appendix III
is July 31, 1998
APPENDIX III TO
INTERCARRIER ROAMER SERVICE AGREEMENT
BETWEEN
▇▇▇▇▇▇
AND
AIRTOUCH CELLULAR
OPERATING PROCEDURES
1. OPERATING PROCEDURES. The Parties agree that the operating
procedures set forth in this Appendix III shall govern and control unless and
until the Parties mutually agree, in writing, to amend said operating
procedures.
2. CLOSE OF BILLING. "Close of Billing" shall be the fifteenth
(15th) day of each calendar month or the immediately preceding business day if
the fifteenth (15th) is not a business day.
3. INVOICING. Invoicing must occur within fifteen (15) days after
the Close of Billing.
4. BILLING PERIOD. The "Billing Period" is the period running from
the day after the Close of Billing through the Close of Billing day in the
subsequent month (normally the sixteenth (16th) through the fifteenth (15th),
unless the fifteenth (15th) falls on a-non-business day).
5. PAYMENT. Payment in the form of a check or wire transfer must be
received by the payee within thirty (30) days ("Payment Due Date") following the
date of the invoice. Payments received later than the Payment Due Date shall be
subject to a late charge of either one and a half percent (1.5%) of the
outstanding balance for each thirty (30) day period (or portion thereof) that
such payments are late or the highest percentage of the outstanding balance
permitted by law, whichever is lower.
29
6. MINIMUM LINE RANGE. The "Minimum Line Range" within an NPA/NXX is
1,000 line numbers.
7. NPA/NXX NOTIFICATION. The maximum time allowed before changes,
additions or deletions of NPA/NXX's are effective shall be fifteen (15) days
from the date of receipt of notification of such changes, additions or deletions
by either Party.
8. MESSAGE DATE EDIT. Message records shall be considered to have
failed the CIBER Record Edit if the message is more than thirty (30) days old
when it is received at the Home Carrier's Authorized Receipt Point ("ARP").
Message records which are rejected from the Home Carrier's ARP and returned to
the Serving Carrier shall be considered to have failed the CIBER Record Edit if
the message is more than sixty (60) days old. Determination of the age of a
message record is from the date of the call.
30
AMENDMENT TO INTERCARRIER ROAMER SERVICE AGREEMENT
This Amendment to an Intercarrier Roamer Service Agreement
(hereinafter the "Amendment") is effective as of July 31, 1998, and is entered
into by AIRTOUCH CELLULAR (hereinafter "ATC") and ▇▇▇▇▇▇ CELLULAR OF IMPERIAL,
INC. (hereinafter "▇▇▇▇▇▇"), on behalf of those partnerships set forth in
Attachment A, which is attached hereto and is hereby incorporated herein.
RECITALS
▇. ▇▇▇▇▇▇ and ATC currently offer roamer cellular radiotelephone service
to each other's subscribers pursuant to the Intercarrier Roamer Service
Agreement dated July 31, 1998 (hereinafter the "Agreement").
B. Each party to this Amendment desires to limit its liability for
charges resulting from fraudulent usage of the other party's systems.
NOW THEREFORE, the parties do hereby agree as follows:
1. Paragraph 2.1 of Appendix II of the Agreement is hereby deleted in its
entirety and replaced by the following Paragraphs 2.1 through 2.9:
"2.1 Each Home Carrier, whose customers (including the customers of
its resellers) receive wireless services from a Serving Carrier as
Authorized Roamers under this Agreement, shall initially pay to the Serving
Carrier who provided such wireless services all of the Serving Carrier's
charges for wireless services and all pass-through charges (i.e., any toll
or other charges owed by the Serving Carrier to any toll or other carrier
in connection with providing such cellular services) set forth in
Attachment B. The Home Carrier may then receive payment for certain credits
due to Fraudulent Calls as defined in this Paragraph 2.
2.2 In this Agreement, a "Fraudulent Call" is any call that (i) is
not billable to an active customer of the Home Carrier because the MIN/ESN
combination used to make the call was invalid (i.e., not active in the Home
Carrier's switch), or (ii) was made by a MIN/ESN combination for which
there is a valid active subscriber of the Home Carrier but for which such
subscriber cannot be billed, as evidenced by "proof of fraud".
1
Proof of fraud shall mean (1) overlapping calls appearing on a subscriber's
▇▇▇▇, or (2) calls made from different locations and so close in time that
it would have been impossible for the valid subscriber to have traveled
between the different locations, or (3) reasonable determination that the
valid active subscriber cannot be billed for the involved calls either
because such subscriber did not make the calls or because it is not
feasible to separate calls that were made by the valid subscriber from
calls that were not so made.
2.3 If the Home Carrier's switch was available for validation at the
time Fraudulent Calls were made, the Home Carrier shall receive credits for
the following portions of the Serving Carrier's charges for Fraudulent
Calls:
100% of daily service charges
100% of per minute usage charges less an administrative fee of $0.10
per minute
100% of pass-through toll charges
100% of total taxes
Where the Serving Carrier's Market does not provide a Positive
Validation/Verification system as defined in Section P and referenced in
Section 3.3 of Appendix II, credits will not be reduced by the
administrative fee of $0.10 per minute.
2.4 In order for the Home Carrier to receive payment for any
Fraudulent Call credits, the Home Carrier must submit a written claim
("Credit Claim"). The Credit Claim must be supported by applicable call
detail records, although such records need not be attached to each claim.
Each Credit Claim must contain the MIN/ESN's, date range of fraudulent
calls, total fraudulent charges (including airtime, surcharges, taxes and
toll charges passed through by the Serving Carrier), and the Serving
Carrier's SID. At the Serving Carrier's request, the Home Carrier must
certify that the MIN/ESN combination that was cloned has since been
restricted from roaming. Upon receiving a Credit Claim, the Serving Carrier
may request from the Home Carrier copies of subscriber bills or other call
detail records for a sample of the MIN's (sample size will not exceed 10
MINs for the first $200,000 in claims per month and an additional 5 MINs
for every
2
additional $100,000 in claims per month) submitted or other reasonable
evidence that demonstrates that the calls claimed for credit are Fraudulent
Calls ("Proof of Fraud"). Except pursuant to an audit as provided herein,
any request for Proof of Fraud must be received by the Home Carrier within
thirty (30) days of the Serving Carrier's receipt of the Credit Claim, with
the Proof of Fraud received by the Serving Carrier within sixty (60) days
of the receipt of such request. For each account for which Proof of Fraud
is not adequate or timely received ("Error Account") the Serving Carrier
will have the right to require Proof of Fraud for an additional five
accounts. This request for Proof of Fraud for the additional accounts must
be received by the Home Carrier within thirty (30) days of the receipt of
the initial Proof of Fraud by the Serving Carrier. The Serving Carrier will
then, within thirty (30) days of the receipt of the request for Proof of
Fraud for the additional accounts, determine and inform the Home Carrier of
the adequacy of the additional Proofs of Fraud. If the five replacement
accounts are adequate, the requirements for Proof of Fraud for the Error
Account will have been met. If the five replacement accounts are not
adequate, the requirements for Proof of Fraud for the Error Account will
not have been met. The fraud credits issued for the month in which such
Proof of Fraud is not met shall be reduced on a pro rata basis for the
number of accounts for which no or unsatisfactory Proof of Fraud is
submitted, e.g., if 2 of 10 accounts for which Proof of Fraud are requested
are not submitted or are unsatisfactory, and 7 of the 10 replacement
accounts are also unsatisfactory, 45% of the applicable Credit Claim shall
be denied; if, however, 10 of 10 replacement accounts are satisfactory,
100% of the Credit Claim will be paid. If the Serving Carrier indicates to
the Home Carrier that the Serving Carrier needs, for criminal prosecution
purposes, and affidavit executed by the Home Carrier's subscriber stating
that the subscriber did not place the Fraudulent Calls, the Home Carrier
shall make its best efforts to obtain an appropriate affidavit.
2.5 The Home Carrier shall not submit more than one Credit Claim per
calendar month to any Serving Carrier, and no Credit Claim shall be
submitted for an amount which is less than Two Thousand Dollars
($2,000.00). No Credit Claim shall seek credit for a Fraudulent Call that
was made more than one hundred eighty (180) days prior to the date the Home
Carrier delivers the Credit Claim to the Serving Carrier, and no Credit
Claim shall contain any Fraudulent Call attributable to an MIN/ESN to which
less than Two Hundred Dollars ($200.00) in Fraudulent Calls is attributable
in that Credit Claim.
3
2.6 The Serving Carrier shall make payment to the Home Carrier within
sixty (60) days after receiving a Credit Claim. The Serving Carrier shall
not be required to pay a Credit Claim, however, until any outstanding
balances due to the Serving Carrier from the Home Carrier and more than
thirty (30) days overdue are paid.
2.7 The Serving Carrier shall have the right to conduct an audit, at
its own expense, of Credit Claims which have been submitted and paid,
provided that such audit is requested within one year after the date that
the claim was paid. The parties agree to work together to minimize the
administration of this amendment and ensure that all claims are processed
in accordance with the provisions of this Agreement.
2.8 Except as provided for in Sections 2.1 through 2.7, above, the
Home Carrier shall be solely responsible for all of its own personnel,
administrative, billing, and any other costs associated with cellular
fraud.
2.9 Each party agrees to expeditiously notify the other should
fraudulent usage become apparent on either party's system, and the parties
agree to work as rapidly as possible under the circumstances to correct the
problem relating to cellular fraud and to minimize fraudulent usage of
their cellular systems."
2. Except as modified herein, all terms and conditions of the Agreement
shall remain unchanged and in full force and effect.
AIRTOUCH CELLULAR, ▇▇▇▇▇▇ CELLULAR OF IMPERIAL, INC.
("ATC") ("▇▇▇▇▇▇")
By: By:
--------------------------- ---------------------------
Name: Name:
------------------------- ------------------------
Title: Title:
------------------------ -----------------------
4
EXHIBIT D
Operator Insurance Requirements
General Liability (Commercial)
General aggregate $2,000,000
Products - completed
operation aggregate $2,000,000
Personal and advertising
injury $1,000,000
Each occurrence $1,000,000
Fire damage $ 300,000
Medical expense $ 5,000
Excess Liability (Umbrella)
Each occurrence $5,000,000
Aggregate $5,000,000
Automobile Liability $1,000,000
Workers' Compensation statutory
Employer's Liability $1,000,000