Exhibit 10.6
SERVICES AGREEMENT
------------------
THIS SERVICES AGREEMENT (this "Agreement") is effective as of the 31st
day of August, 1999, by and between PINNACLE TOWERS INC., a Delaware corporation
("Seller") and Pinnacle Towers III Inc., a Florida corporation ("Purchaser").
WHEREAS, pursuant to that Agreement for Purchase and Sale of Assets dated
August 31, 1999 by and between Seller and Purchaser (the "Asset Purchase
Agreement"), Purchaser is purchasing certain assets from Seller;
WHEREAS, Seller will provide certain services to Purchaser subject to the
provisions set forth herein;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties agree as follows:
1. Services to be Provided. During the term of this Agreement, upon the
-----------------------
reasonable request of Purchaser, Seller will provide, or will cause to be
provided, to Purchaser the services set forth on Schedule A (the "Services").
2. Fees for Services.
-----------------
(a) As consideration for the Services provided by Seller to
Purchaser pursuant to Schedule A of this Agreement, Purchaser will pay to Seller
a fee on an annual basis during the term of this Agreement in which Purchaser
receives Services (the "Services Fee").
(b) The Services Fee shall be equal to all costs and expenses
incurred by Seller in connection with the provision of the Services and shall
include, without limitation, the following: (i) all direct costs incurred to
provide the Services, including out-of-pocket expenses, (ii) all fees of third
parties, including fees and expenses of consultants, attorneys, accountants and
other experts and (iii) such portion of the overhead expenses relating to the
provision of the Services as the parties shall agree upon in writing prior to
the provision of any Service.
(c) Purchaser shall pay the full amount of the Services Fee within
ten (10) days of the date on which such Services Fee is determined in accordance
with the terms set forth on Schedule A.
3. Performance of Services. All Services to be performed under this
-----------------------
Agreement shall be performed with reasonable care and pursuant to the good faith
business judgement of Seller.
4. Limitation of Liability.
-----------------------
(a) Seller and its Affiliates, and the officers,
directors, employees, shareholders, partners, representatives,
consultants and agents of Seller and its Affiliates
(collectively, "Providing Parties") shall not be liable to the
party receiving the Services, its Affiliates, or to any officer,
director, employee,
shareholder, partner, representative, consultant or agent of such
party or its Affiliates (collectively, "Receiving Parties"), for
any liability, cost, damage, expense or loss, including, without
limitation, any special, indirect, consequential or punitive
damages (i) arising or allegedly arising out of any actions or
failures to act by any of the Providing Parties with respect to
the Services to be provided hereunder, or (ii) as a result of the
reliance by any of the Receiving Parties on any advice or data
that any of the Providing Parties may provide pursuant to this
Agreement; provided, however, that the foregoing shall not apply
to limit liability of a party to the extent caused by such
party's gross negligence or willful misconduct.
(b) The Receiving Parties shall indemnify and hold
harmless each and every of the Providing Parties from and against
any liability, cost, damage, expense or loss (including court
costs and reasonable attorneys' fees) which such Providing
Parties may sustain or incur by reason of any claim, demand, suit
or recovery by any person or entity, directly resulting from acts
or omissions committed by the Receiving Party in connection with
this Agreement; provided, however, that no person may benefit
from the foregoing indemnity in the event of its gross negligence
or willful misconduct.
5. Term. The term of this Agreement with respect to any Services to be
----
provided by Seller shall commence as of the date hereof and end on the date set
forth on Schedule A, unless earlier terminated by Purchaser. This Agreement
may, at the option of Purchaser, be terminated at any time for any reason upon
thirty days notice to Seller.
6. Relationship of the Parties. In all matters relating to this
---------------------------
Agreement, each party hereto shall be solely responsible for the acts of its
employees, and employees of one party shall not be considered employees of the
other party. No party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party. In performing the
Services hereunder, Seller shall be acting as an independent contractor of
Purchaser. Nothing in this Agreement is intended to create or constitute a
joint venture or partnership between the parties hereto or persons referred to
herein.
7. Force Majeure. Seller shall be excused from performance hereunder for
-------------
any period and to the extent that it is prevented from performing any services
hereunder, in whole or in part, as a result of delays caused by Purchaser or any
act of God, war, civil disturbance, court order, strike, labor dispute, law or
regulation of any governmental authority, or other cause beyond the reasonable
control of Seller. Such nonperformance shall not be a default hereunder.
Seller shall take all reasonable actions to resume performance of its
obligations hereunder as soon as feasible.
8. Amendments and Waiver. No amendment, waiver or consent with respect
---------------------
to any provision of this Agreement shall in any event be effective, unless the
same shall be in writing and signed by the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
-2-
9. Notices. All notices, requests, demands and other communications
-------
hereunder shall be in writing and shall be, personally delivered or sent by
facsimile transmission with confirming copy sent by overnight courier (such as
Express Mail, Federal Express, etc.) and a delivery receipt obtained and
addressed to the intended recipient as follows:
If to Seller:
Pinnacle Towers Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Pinnacle Towers III Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address or add or change parties for receiving notice
by written notice given to the others named above. Notices shall be deemed
given as of the date of receipt.
10. Counterparts. 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 instrument.
11. Successors and Assigns; Beneficiaries. This Agreement shall bind
-------------------------------------
and inure to the benefit of the parties named herein and their respective
successors and assigns. No party may assign any rights, benefits, duties or
obligations under this Agreement without the prior written consent of the other
party. Except as specifically provided in Section 4, no third party shall be
entitled to enforce any provision hereof; and no third party is intended to
benefit from this Agreement.
12. Entire Agreement. This Agreement and the documents referred to
----------------
herein contain the entire agreement and understanding among the parties with
respect to the transactions contemplated hereby and supersede all other
agreements, understandings and undertakings among the parties on the subject
matter hereof.
13. Partial Invalidity. In the event that any provision of this
------------------
Agreement shall be held invalid or unenforceable by any court or competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
-3-
14. Governing Law; Jurisdiction. This Agreement shall be interpreted in
---------------------------
accordance with the substantive laws of the State of Florida applicable to
contracts made and to be performed wholly within said State. All disputes,
legal actions, suits and proceedings arising out of or relating to this
Agreement shall be brought in a federal district or state court located in
Tampa, Florida. Each party hereby consents to the jurisdiction of the federal
district or state court in Tampa, Florida. Each party hereby irrevocably waives
all claims of immunity from jurisdiction and any right to object on the basis
that any dispute, action, suit or proceeding brought in the federal district or
state court of Tampa, Florida has been brought in an improper or inconvenient
venue or forum.
15. Disputes.
--------
(a) Seller and Purchaser mutually desire that friendly
collaboration will develop between themselves. Accordingly, they
shall try to resolve in a friendly manner all disagreements and
misunderstandings connected with their respective rights and
obligations under this Agreement, including any amendments
hereof.
(b) (i) To the extent that any misunderstanding or dispute
cannot be resolved agreeably in a friendly manner, the dispute
will be mediated by a mutually acceptable mediator to be chosen
by Seller and Purchaser within forty-five (45) days after written
notice by one of the parties demanding mediation. Neither party
may unreasonably withhold consent to the selection of a mediator,
however, by mutual agreement Seller and Purchaser may postpone
mediation until each has completed specified but limited
discovery with respect to a dispute. The parties may also agree
to attempt some other form of alternative dispute resolution
("ADR") in lieu of mediation, including by way of example and
without limitation, neutral fact-finding or a mini-trial.
(ii) Any dispute which the parties cannot resolve through
negotiation, mediation or other form of ADR within six months of
the date of the initial demand for it by one of the parties may
then be submitted to the courts for resolution. The use of any
ADR procedures will not be construed under the doctrine of
laches, waiver or estoppel to affect adversely the rights of
either party. Nothing in this Section 14 will prevent either
party from resorting to judicial proceedings if (A) good faith
efforts to resolve the dispute under these procedures have been
unsuccessful or (B) interim relief from a court is necessary to
prevent serious and irreparable injury to one party or to others.
(c) Each of Purchaser and Seller shall bear its costs of
mediation or ADR, but Purchaser and Seller agree to share the
costs of the mediation of ADR equally.
16. Authorship. The parties hereto agree that the terms and language of
----------
this Agreement were the result of negotiations between the parties and, as a
result, there shall be no presumption that any ambiguities in this Agreement
shall be resolved against either party. Any controversy over construction of
this Agreement shall be decided without regard to events of authorship or
negotiation.
-4-
17. Defined Terms. All capitalized terms not defined herein shall have
-------------
the meanings ascribed to them in the Asset Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PINNACLE TOWERS INC.
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
PINNACLE TOWERS III INC.
___________________________________
▇▇▇▇▇▇ ▇. Day, Vice President, Chief
Financial Officer and Secretary
-5-
SCHEDULE A
Services:
All organizational, sales, marketing, general and administrative services
reasonably required by Purchaser.
Services Fee:
To be determined by the parties no later than ninety (90) days after the end of
each calendar year during the term of this Agreement for the prior year, based
on the actual Services provided by Seller to Purchaser during such calendar
year.
-6-