1
EXHIBIT 10.6
SPRINT PCS
SERVICES AGREEMENT
BETWEEN
SPRINT SPECTRUM L.P.
AND
ALAMOSA PCS LLC
JULY 17, 1998
2
TABLE OF CONTENTS
Page
----
1. ENGAGEMENT OF SPRINTSPECTRUM 1
1.1 ENGAGEMENT OF SPRINTSPECTRUM 1
1.2 RELIANCE ON AFFILIATE 1
1.3 NON-EXCLUSIVE SERVICE 1
1.4 MANAGER'S USE OF SERVICES 2
2. SERVICES 2
2.1 AVAILABLE SERVICES; SELECTED SERVICES 2
2.1.1 AVAILABLE SERVICES 2
2.1.2 SELECTED SERVICES 2
2.1.3 CHANGES TO SELECTED SERVICES 2
2.1.4 PERFORMANCE OF SELECTED SERVICES 3
2.2 THIRD PARTY VENDORS 3
2.3 CONTRACTS 3
3. FEES FOR SELECTED SERVICES 3
3.1 PAYMENT OF FEES 3
3.2 ADJUSTMENT OF FEES 4
3.3 LATE PAYMENTS 4
4. TERM; TERMINATION; EFFECT OF TERMINATION 4
4.1 TERM 4
4.2 EFFECT OF TERMINATION 4
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION 4
5.1 BOOKS AND RECORDS 4
5.1.1 GENERAL 4
5.1.2 AUDIT 5
5.1.3 CONTESTING AN AUDIT. 5
5.2 CONFIDENTIAL INFORMATION 6
6. INDEMNIFICATION 7
6.1 INDEMNIFICATION BY SPRINT SPECTRUM 8
6.2 INDEMNIFICATION BY AFFILIATE 7
6.3 PROCEDURE 8
6.3.1 NOTICE 8
6.3.2 DEFENSE BY INDEMNITOR 8
6.3.3 DEFENSE BY INDEMNITEE 8
6.3.4 COSTS 8
i
3
7. DISPUTE RESOLUTION 9
7.1 NEGOTIATION 9
7.2 UNABLE TO RESOLVE 9
7.3 ATTORNEYS AND INTENT 9
8. REPRESENTATIONS AND WARRANTIES 9
8.1 DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENTS 9
8.2 VALID AND BINDING OBLIGATION 10
8.3 NO CONFLICT; NO DEFAULT 10
8.4 LITIGATION 10
9. GENERAL PROVISIONS 10
9.1 NOTICES 10
9.2 CONSTRUCTION 10
9.3 HEADINGS 10
9.4 FURTHER ACTION 11
9.5 SPECIFIC PERFORMANCE 11
9.6 ENTIRE AGREEMENT; AMENDMENTS 11
9.7 LIMITATION ON RIGHTS OF OTHERS 11
9.8 WAIVERS; REMEDIES 11
9.9 WAIVER OF JURY TRIAL 12
9.10 BINDING EFFECT 12
9.11 GOVERNING LAW 12
9.12 SEVERABILITY 12
9.13 LIMITATION OF LIABILITY 12
9.14 NO ASSIGNMENT; EXCEPTIONS 12
9.15 DISCLAIMER OF AGENCY 12
9.16 INDEPENDENT CONTRACTORS 13
9.17 EXPENSE 13
9.18 GENERAL TERMS 13
9.19 CONFLICTS WITH AFFILIATION AGREEMENT 13
9.20 MASTER SIGNATURE PAGE 13
ii
4
SPRINT PCS SERVICES AGREEMENT
This SERVICES AGREEMENT is made July 17, 1998, by and between Sprint
Spectrum L.P., a Delaware limited partnership ("SPRINT SPECTRUM"), and ALAMOSA
PCS L.L.C., a Texas limited liability company (but not any Related Party)
("MANAGER"). The definitions for this agreement are set forth on the "SCHEDULE
OF DEFINITIONS."
RECITALS
A. Manager and the holder of the License ("SPRINT PCS") are entering
into a Management Agreement contemporaneously with the execution of this
agreement, under which Manager will design, construct, operate, manage and
maintain a wireless services network in the Service Area in accordance with
Sprint PCS standards and will offer and promote Sprint PCS Products and Services
that operate on the Sprint PCS Network.
B. Manager desires to enter into this agreement with Sprint Spectrum,
under which Sprint Spectrum may furnish certain services to Manager to assist
Manager to build out, operate, manage and maintain the Service Area Network
under the License.
AGREEMENT
In consideration of the recitals and mutual covenants and agreements
contained in, this agreement, the sufficiency of which are hereby acknowledged,
the parties, intending to be bound, agree as follows:
1. ENGAGEMENT OF SPRINT SPECTRUM
1.1 ENGAGEMENT OF SPRINT SPECTRUM. Manager engages Sprint Spectrum to
assist Manager with certain specified services in connection with the operations
of Manager and in building out, operating, managing and maintaining the Service
Area Network, subject to the terms and conditions of this agreement. Sprint
Spectrum accepts the engagement and will use the same effort and demonstrate the
same care in performing its obligations under this agreement as it uses in
conducting its own business. Manager will use the efforts and demonstrate the
care necessary for Sprint Spectrum to meet its obligations under this agreement.
When providing the Selected Services, Sprint Spectrum will provide those
services to Manager in the same manner it provides those services to its own
business, including the use of third party vendors to provide certain Selected
Services.
1.2 RELIANCE ON MANAGER. Manager understands that Sprint Spectrum's
ability to provide the Selected Services will depend largely on Manager's
compliance with the Sprint PCS Program Requirements under the Management
Agreement and cooperation with Sprint Spectrum. Manager agrees to comply with
such requirements and to cooperate with Sprint Spectrum to enable Sprint
Spectrum to perform its obligations under this agreement.
1.3 NON-EXCLUSIVE SERVICE. Nothing contained in this agreement confers
upon Manager an exclusive right to any of the Available Services. Sprint
Spectrum may contract
5
with others to provide expertise and services identical or
similar to those to be made available or provided to Manager under this
agreement.
1.4 MANAGER'S USE OF SERVICES. Manager agrees it will only use the
Selected Services in connection with its Service Area Network. Manager will not
use the Selected Services in connection with any other business or outside the
Service Area.
2. SERVICES
2.1 AVAILABLE SERVICES; SELECTED SERVICES.
2.1.1 Available Services. Subject to the terms of this
agreement, Manager may obtain any of the Available Services from Sprint Spectrum
in accordance with the provisions of this Section 2. 1. The Available Services
offered from time to time and the fees charged for such Available Services will
be set forth on the then current Exhibit 2.1.1 (the "AVAILABLE SERVICES AND FEES
SCHEDULE"). If Sprint Spectrum offers any new Available Service, it will deliver
a new Exhibit 2. 1.1 indicating the new service and the fee for the new service.
Manager may select one or more of the categories of Available
Services. If Manager selects a particular category of services it must take and
pay for all of the services under the category selected; Manager may not select
only particular services within that category.
If Sprint Spectrum determines to no longer offer an Available
Service and the service is not a Selected Service, then Sprint Spectrum may give
Manager written notice at any time during the term of this agreement that Sprint
Spectrum no longer offers the Available Service.
Sprint Spectrum may modify Exhibit 2. 1.1 from time to time.
Exhibit 2. 1.1 will be deemed amended upon delivery of the new Exhibit 2. 1.1 to
Manager.
2.1.2 Selected Services. During the term of this agreement,
and subject to the terms of this agreement, Manager has selected, and Sprint
Spectrum has agreed to furnish or cause to be furnished to Manager, the
Available Services listed on Exhibit 2.1.2 (which listed services will be the
Selected Services). Sprint Spectrum may require from time to time that certain
Available Services be Selected Services where necessary to comply with legal or
regulatory requirements (e.g., mandatory provision of emergency 911 service) or
applicable operating constraints (e.g., delivery of merchandise to the regional
distribution centers of national retail distributors).
2.1.3 Changes to Selected Services. If Manager determines it
no longer requires a Selected Service, then Manager must give Sprint Spectrum
written notice at least 3 months prior to the date on which Manager wishes to
discontinue its use of such Selected Service.
2
6
If Sprint Spectrum determines to no longer offer an Available
Service and such service is one of Manager's Selected Services, then Sprint
Spectrum must give Manager written notice at least 9 months prior to its
discontinuance of such Available Service that Sprint Spectrum will no longer
offer such Available Service. If the Available Service to be discontinued is
required by Sprint Spectrum to be a Selected Service, then Sprint Spectrum will
use commercially reasonable efforts to (a) help Manager provide the service
itself or find another vendor to provide the service, and (b) facilitate
Manager's transition to the new service provider.
2.1.4 Performance of Selected Services. Sprint Spectrum may
select the method, location and means of providing the Selected Services. If
Sprint Spectrum wishes to use Manager's facilities to provide the Selected
Services, Sprint Spectrum must obtain Manager's prior written consent. .
2.2 THIRD PARTY VENDORS. Some of the Available Services might be
provided by third party vendors under arrangements between Sprint Spectrum and
the third party vendors. In some instances, Manager may receive Available
Services from a third party vendor under the same terms and conditions that
Sprint Spectrum receives such services. In other instances, Manager may receive
Available Services under the terms and conditions set forth in an agreement
between Manager and the third party vendor. If Manager wishes to engage a third
party vendor to provide Available Services, Selected Services, or Available
Services that Sprint Spectrum will no longer offer, Manager must first obtain
Sprint Spectrum's prior written consent, which consent will not be unreasonably
withheld. Before Manager may obtain from the third party vendor any Available
Services, Selected Services, or Available Services that Sprint Spectrum will no
longer offer, such vendor must execute an agreement prepared by Sprint Spectrum
that obligates the vendor to maintain the confidentiality of any proprietary
information and that prohibits the vendor from using any proprietary technology,
information or methods for its benefit or the benefit of any other person or
entity. Manager's use of a third party vendor that is not providing Available
Services to Manager on behalf of Sprint PCS under the Management Agreement will
not qualify for assumed compliance with the Program Requirements under Sections
7. 1 (a)(ii) or 8. 1 (b) of the Management Agreement.
2.3 CONTRACTS. Manager will notify Sprint Spectrum of any contract or
other arrangement Manager has with any other party that will affect how Sprint
Spectrum is to provide the Selected Services.
3. FEES FOR SELECTED SERVICES
3.1 PAYMENT OF FEES. Sprint Spectrum and Manager agree that the fees
for the Available Services will initially be those set forth on Exhibit 2. 1. 1,
which fees represent an adjustment to any fees paid by Sprint PCS to Manager
under Section 10 of the Management Agreement . The monthly charge for any fees
based on the number of subscribers of the Service Area Network will be
determined based on the number of subscribers as of the 15th day of the month
for which the charge is being calculated. Manager agrees to pay the fees to
Sprint Spectrum within 20 days after the date of the invoice. If Manager enters
into an agreement with a third party vendor under Section 2.2, Manager agrees to
pay the fees for the services rendered by the third party vendor in accordance
with the terms and conditions of such agreement.
3
7
3.2 ADJUSTMENT OF FEES. Sprint Spectrum may change the fee for any
service it provides once during any 12-month period by delivering a new Exhibit
2. 1.1 to Manager. Exhibit 2. 1.1 will be deemed amended. on the effective date
noted on the new Exhibit 2. 1. 1, which will be at least 30 days after
delivering the new Exhibit 2. 1.1. Manager must notify Sprint Spectrum in
writing before the effective date of the new Exhibit 2. 1. 1 if Manager wishes
to discontinue a Selected Service for which the price is being increased (a
"CANCELED SERVICE"). If Manager discontinues a Selected Service under this
Section 3.2, Sprint Spectrum will, at Manager's option, continue to provide the
Cancelled Service and to charge Manager the current fee (i.e., the fee under the
Exhibit 2. 1. 1 in effect on the date Manager gives its cancellation notice to
Sprint Spectrum) for the Cancelled Service for up to 9 months from the date
Sprint Spectrum gives Manager notice of the price change or until Manager no
longer needs the Cancelled Service, whichever occurs first. If Sprint Spectrum
continues to provide the Cancelled Service after the 9-month period, Sprint
Spectrum will apply the new fee, under the new Exhibit 2. 1. 1, and such fee
will be applied retroactively as of the effective date of the new schedule.
Manager agrees to pay such retroactive charge within 10 days after the date of
the invoice for such charge.
3.3 LATE PAYMENTS. Any payment due under this Section 3 that is not
paid by Manager to Sprint Spectrum in accordance with the terms of this
agreement will bear interest at the Default Rate beginning (and including) the
6th day after the due date until (and including) the date on which such payment
is made.
4. TERM; TERMINATION; EFFECT OF TERMINATION
4.1 TERM. This agreement commences on the date of execution and
continues until the Management Agreement terminates. This agreement
automatically terminates upon termination of the Management Agreement. Neither
party may terminate this agreement for any reason other than the termination of
the Management Agreement.
4.2 EFFECT OF TERMINATION. Upon the termination of this agreement, all
rights and obligations of each party under this agreement will immediately
cease. except that:
(a) Any rights arising out of a breach of any terms of this
agreement will survive any termination of this agreement;
(b) The provisions of this Section 4.2 and Sections 5.2, 6, 7,
and 9 will survive any termination of this agreement; and
(c) The payment obligations under Section 3 will survive any
termination of this agreement if, and to the extent, any fees have accrued or
are otherwise due and owing from Manager to Sprint Spectrum or any Sprint
Spectrum Related Party as of the date of termination of this agreement.
5. BOOKS AND RECORDS; CONFIDENTIAL INFORMATION
5.1 BOOKS AND RECORDS.
5.1.1 General. Each party must keep and maintain books and
records to support and document any fees, costs, expenses or other charges due
in connection with the provisions
4
8
set forth in this agreement. The records must be retained for a period of at
least 3 years after the fees, costs, expenses or other charges to which the
records relate have accrued and have been paid, or such other period as may be
required by law.
5.1.2 Audit. On reasonable advance notice, each party must
provide access to appropriate records to the independent auditors selected by
the other party for purposes of auditing the amount of fees, costs, expenses or
other charges payable in connection with the Selected Services with respect to
the period audited. The auditing party will conduct the audit no more frequently
than annually. If the audit shows that Sprint Spectrum was underpaid then,
unless the amount is contested, Manager will pay to Sprint Spectrum the amount
of the underpayment within 10 Business Days after Sprint Spectrum gives Manager
written notice of the determination of the underpayment. If the audit determines
that Sprint Spectrum was overpaid then, unless the amount is contested, Sprint
Spectrum will pay to Manager the amount of the overpayment within 10 Business
Days after Sprint Spectrum determines Sprint Spectrum was overpaid.
Notwithstanding the above provisions of this Section 5.1.2,
Sprint Spectrum may elect to have its own independent auditors certify to the
accuracy of the charges with respect to Manager, rather than allow Manager's
independent auditors access to Sprint Spectrum's records.
5.1.3 Contesting an Audit. If the party that did not select
the independent auditor does not agree with the findings of the audit, then such
party can contest the findings by providing notice of such disagreement to the
other party (the "DISPUTE NOTICE"). The date of delivery of such notice is the
"DISPUTE NOTICE DATE." If the parties are unable to resolve the disagreement
within 10 Business Days after the Dispute Notice Date, they will resolve the
disagreement in accordance with the following procedures.
The two parties and the auditor that conducted the audit will
all agree on an independent certified public accountant with a regional or
national accounting practice in the wireless telecommunications industry (the
"ARBITER") within 15 Business Days after the Dispute Notice Date. If, within 15
Business Days after the Dispute Notice Date, the three parties fail to agree on
the Arbiter, then at the request of either party to this agreement, the Arbiter
will be selected pursuant to the rules then in effect of the American
Arbitration Association. Each party will submit to the Arbiter within 5 Business
Days after its selection and engagement all information reasonably requested by
the Arbiter to enable the Arbiter to independently resolve the issue that is the
subject of the Dispute Notice. The Arbiter will make its own determination of
the amount of fees, costs, expenses or other charges payable under this
agreement with respect to the period audited. The Arbiter will issue a written
report of its determination in reasonable detail and will deliver a copy of the
report to the parties within 10 Business Days after the Arbiter receives all of
the information reasonably requested. The determination made by the Arbiter will
be final and binding and may be enforced by any court having jurisdiction. The
parties will cooperate fully in assisting the Arbiter and will take such actions
as are necessary to expedite the completion of and to cause the Arbiter to
expedite its assignment.
If the amount owed by a contesting party is reduced by more than 10% or
the amount owed to a contesting party is increased by more than 10% then the
noncontesting party will
5
9
pay the costs and expenses of the Arbiter, otherwise the contesting party will
pay the costs and expenses of the Arbiter.
5.2 CONFIDENTIAL INFORMATION.
(a) Except as specifically authorized by this agreement, each
of the parties must, for the term of this agreement and 3 years after the date
of termination of this agreement, keep confidential, not disclose to others and
use only for the purposes authorized in this agreement, all Confidential
Information disclosed by the other party to the party in connection with this
agreement, except that the foregoing obligation will not apply to the extent
that any Confidential Information:
(i) is or becomes, after disclosure to a party,
publicly known by any means other than through unauthorized acts or omissions of
the party or its agents; or
(ii) is disclosed in good faith to a party by a third
party entitled to make
the disclosure.
(b) Notwithstanding the foregoing, a party may use, disclose
or authorize the disclosure of Confidential Information that it receives that:
(i) has been published or is in the public domain, or
that subsequently comes into the public domain, through no fault of the
receiving party;
(ii) prior to the effective date of this agreement
was properly within the legitimate possession of the receiving party, or
subsequent to the effective date of this agreement, is lawfully received from a
third party having rights to publicly disseminate the Confidential Information
without any restriction and without notice to the recipient of any restriction
against its further disclosure;
(iii) is independently developed by the receiving
party through persons or entities who have not had, either directly or
indirectly, access to or knowledge of the Confidential Information;
(iv) is disclosed to a third party consistent with
the terms of the written approval of the party originally disclosing the
information;
(v) is required by the receiving party to be produced
under order of a court of competent jurisdiction or other similar requirements
of a governmental agency, and the Confidential Information will otherwise
continue to be Confidential Information required to be held confidential for
purposes of this agreement;
(vi) is required by the receiving party to be
disclosed by applicable law or a stock exchange or association-on which the
receiving party's securities (or those of its Related Parties) are or may become
listed; or
6
10
(vii) is disclosed by the receiving party to a
financial institution or accredited investor (as that term is defined in Rule
501 (a) under the Securities Act of 1933) that is considering providing
financing to the receiving party and which financial institution or accredited
investor has agreed to keep the Confidential Information confidential in
accordance with an agreement at least as restrictive as this Section 5.
(c) The party making a disclosure under Sections 5.2(b)(v),
5.2(b)(vi) or 5.2(b)(vii) must inform the non-disclosing party as promptly as is
reasonably necessary to enable the non-disclosing party to take action to, and
use the disclosing party's reasonable best efforts to, limit the disclosure and
maintain confidentiality to the extent practicable.
(d) Manager will not, except when serving in the capacity of
Manager under this agreement, use any Confidential Information of any kind that
it receives under or in connection with this agreement. For example, if Manager
operates a wireless company in a different licensed area, Manager may not use
any of the Confidential Information received under or in connection with this
agreement in operating its other wireless business.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SPRINT SPECTRUM. Sprint Spectrum agrees to
indemnify, defend and hold harmless Manager, its directors, managers, officers
and employees from and against any and all claims, demands, causes of action,
losses, ' actions, damages, liability and expense, including costs and
reasonable attorneys' fees, against Manager, its directors, managers, officers
and employees arising from or relating to the violation by Sprint Spectrum, its
directors, officers, employees, contractors, subcontractors, agents or
representatives of any law, regulation or ordinance applicable to Sprint
Spectrum in its performance of the Selected Services, or by Sprint Spectrum's,
or its directors', officers', employees', contractors', subcontractors', agents'
or representatives' breach of any representation, warranty or covenant contained
in this agreement, except where and to the extent the claim, demand, cause of
action, loss, action, damage, liability and expense results from the negligence
or willful misconduct of Manager, its directors, managers, officers, employees,
agents or representatives. Sprint Spectrum's indemnification obligations under
this Section 6.1 do not apply to any third party vendors that provide services
(including Selected Services) directly to Manager or its Related Parties under a
separate agreement.
6.2 INDEMNIFICATION BY MANAGER. Manager agrees to indemnify, defend and
hold harmless Sprint Spectrum, its directors, officers and employees from and
against any and all claims, demands, causes of action, losses, actions, damages,
liability and expense, including costs and reasonable attorneys' fees, against
Sprint Spectrum, its directors, officers and employees arising from or relating
to Manager's, or its directors', managers', officers', employees', contractors',
subcontractors', agents' or representatives' violation of any law, regulation or
ordinance applicable to Manager, or by Manager's, or its directors', managers',
officers', employees', contractors', subcontractors', agents' or
representatives' breach of any representation, warranty or covenant contained in
this agreement, Manager's ownership of the Operating Assets or the operation of
the Service Area Network, except where and to the extent the claim, demand,
cause of action, loss, action, damage, liability and expense results
7
11
from the negligence or willful misconduct of Sprint Spectrum, its directors,
officers, employees, contractors, subcontractors, agents or representatives.
6.3 PROCEDURE.
6.3.1 Notice. Any party being indemnified ("INDEMNITEE") will
give the party making the indemnification ("INDEMNITOR") written notice as soon
as practicable but no later than 5 Business Days after the party becomes aware
of the facts, conditions or events that give rise to the claim for
indemnification if-
(a) Any claim or demand is made or liability is asserted
against Indemnitee; or
(b) Any suit, action, or administrative or legal proceeding is
instituted or commenced in which Indemnitee is involved or is named as a
defendant either individually or with others.
Failure to give notice as described in this Section 6.3.1 does not
modify the indemnification obligations of this provision, except if Indemnitee
is harmed by failure to provide timely notice to Indemnitor, then Indemnitor
does not have to indemnify Indemnitee for the harm caused by the failure to give
the timely notice.
6.3.2 Defense by Indemnitor. If within 30 days after giving
notice Indemnitee receives written notice from Indemnitor stating that
Indemnitor disputes or intends to defend against the claim, demand, liability,
suit, action or proceeding, then Indemnitor will have the right to select
counsel of its choice and to dispute or defend against the claim, demand,
liability, suit, action or proceeding at its expense.
Indemnitee will fully cooperate with Indemnitor in the dispute or defense so
long as Indemnitor is conducting the dispute or defense diligently and in good
faith. Indemnitor is not permitted to settle the dispute or claim-without-the
prior written approval of Indemnitee, which approval will not be unreasonably
withheld. Even though Indemnitor selects counsel of its choice, Indemnitee has
the right to retain additional representation by counsel of its choice to
participate in the defense at Indemnitee's sole cost and expense.
6.3.3 Defense by Indemnitee. If no notice of intent to dispute
or defend is received by Indemnitee within the 30-day period, or if a diligent
and good faith defense is not being or ceases to be conducted, Indemnitee has
the right to dispute and defend against the claim, demand or other liability at
the sole cost and expense of Indemnitor and to settle the claim, demand or other
liability, and in either event to be indemnified as provided in this Section 6.
Indemnitee is not permitted to settle the dispute or claim without the prior
written approval of Indemnitor, which approval will not be unreasonably
withheld.
6.3.4 Costs. Indemnitor's indemnity obligation includes
reasonable attorneys' fees, investigation costs, and all other reasonable costs
and expenses incurred by Indemnitee from the first notice that any claim or
demand has been made or may be made, and is not limited in any way by any
limitation on the amount or type of damages, compensation, or
8
12
benefits payable under applicable workers' compensation acts, disability benefit
acts, or other employee benefit acts.
7. DISPUTE RESOLUTION
7.1 NEGOTIATION. The parties will attempt in good faith to resolve any
dispute arising out of or relating to this agreement promptly by negotiation
between or among representatives who have authority to settle the controversy.
Either party may escalate any dispute not resolved in the normal course of
business to the appropriate (as determined by the party) officers of the parties
by providing written notice to the other party-
Within 10 Business Days after delivery of the notice, the appropriate
officers of each party will meet at a mutually acceptable time and place, and
thereafter as often as they deem reasonably necessary, to exchange relevant
information and to attempt to resolve the dispute.
Either party may elect, by giving written notice to the other party, to
escalate any dispute arising out of or relating to the determination of fees
that is not resolved in the normal course of business or by the audit process
set forth in Sections 5.1.2 and 5.1.3, first to the appropriate financial or
accounting officers to be designated by each party. The designated officers will
meet in the manner described in the preceding paragraph. If the matter has not
been resolved by the designated officers within 30 days after the notifying
party's notice, either party may elect to escalate the dispute to the
appropriate (as determined by the party) officers in accordance with the prior
paragraphs of this Section 7. 1.
7.2 UNABLE TO RESOLVE. If a dispute has not been resolved within 60
days after the notifying party's notice, the parties will continue to operate
under this agreement and ▇▇▇ the other party for damages or seek other
appropriate remedies as provided in this agreement, except neither party may
bring a suit for damages based on an event that occurs during the first two
years of this agreement.
7.3 ATTORNEYS AND INTENT. If an officer intends to be accompanied at a
meeting by an attorney, the other party's officer will be given at least 3
Business Days prior notice of the intention and may also be accompanied by an
attorney. All negotiations under this Section 7 are confidential and will be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Civil Procedure and state rules of evidence and civil procedure.
8. REPRESENTATIONS AND WARRANTIES
Each party for itself makes the following representations and
warranties to the other parry:
8.1 DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENTS. The
party is either a corporation, limited liability company, or limited partnership
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. Manager is qualified to do business and in
good standing in every jurisdiction in which the
9
13
Service Area is located. The party has the full power and authority to execute
and deliver this agreement and to perform its obligations under this agreement.
8.2 VALID AND BINDING OBLIGATION. This agreement constitutes the valid
and binding obligation of the party, enforceable in accordance with its terms,
except as may be limited by principles of equity or by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally.
8.3 NO CONFLICT; NO DEFAULT. Neither the execution, delivery and
performance of this agreement nor the consummation by the party of the
transactions contemplated in this agreement will conflict with, violate or
result in a breach of (a) any law, regulation, order, writ, injunction, decree,
determination or award of any governmental authority or any arbitrator,
applicable to such party, or (b) any term, condition or provision of the
articles of incorporation. certificate of limited partnership, certificate of
organization, bylaws, partnership agreement or limited liability company
agreement (or other governing documents) of such party or of any material
agreement or instrument to which such party is or may be bound or to which any
of its material properties or assets is subject.
8.4 LITIGATION. No action, suit, proceeding or investigation is pending
or, to the knowledge of the party, threatened against or affecting the party or
any of its properties, assets or businesses in any court or before or by any
governmental agency that could, if adversely determined, reasonably be expected
to have a material adverse effect on the party's ability to perform its
obligations under this agreement. The party has not received any currently
effective notice of any default that could reasonably be expected to result in a
breach of the preceding sentence.
9. GENERAL PROVISIONS
9.1 NOTICES. Any notice, payment, demand, or communication required or
permitted to be given by any provision of this agreement must be in writing and
mailed (certified or registered mail, postage prepaid, return receipt
requested), sent by hand or overnight courier, or sent by facsimile (with
acknowledgment received and a copy sent by overnight courier), charges prepaid
and addressed described on the Notice Address Schedule attached to the Master
Signature Page, or to any other address or number as the person or entity -may
from time to time specify by written notice to the other parties.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given when
received.
9.2 CONSTRUCTION. This agreement will be construed simply according to
its fair meaning and not strictly for or against either party.
9.3 HEADINGS. The table of contents, section and other headings
contained in this agreement are for reference purposes only and are not intended
to describe, interpret, define, limit or expand the scope, extent or intent of
this agreement.
10
14
9.4 FURTHER ACTION. Each party agrees to perform all further acts and
execute, acknowledge, and deliver any documents that may be reasonably
necessary, appropriate, or desirable to carry out the intent and purposes of
this agreement.
9.5 SPECIFIC PERFORMANCE. Each party agrees with the other party that
the party would be irreparably damaged if any of the provisions of this
agreement were not performed in accordance with their specific terms and that
monetary damages alone would not provide an adequate remedy. Accordingly, in
addition to any other remedy to which the non-breaching party may be entitled,
at law or in equity, the non-breaching party will be entitled to injunctive
relief to prevent breaches of this agreement and specifically to enforce the
terms and provisions of this agreement.
9.6 ENTIRE AGREEMENT; AMENDMENTS. The provisions of this agreement and
the Management Agreement (if Sprint Spectrum is a party to that agreement)
(including the exhibits to those agreements) set forth the entire agreement and
understanding between the parties as to the subject matter of this agreement and
supersede all prior agreements, oral or written, and other communications
between the parties relating to the subject matter of this agreement. Except for
Sprint Spectrum's right to amend the Available Services and the fees charged for
such services as shown on Exhibit 2. 1. 1, and Manager's right to amend the
Selected Services listed on Exhibit 2.1.2, this agreement may be modified or
amended only by a written amendment signed by persons or entities authorized to
bind each party.
9.7. LIMITATION ON RIGHTS OF OTHERS. Nothing in this agreement,
whether express or implied, will be construed to give any person or entity other
than the parties any legal or equitable right, remedy or claim under or in
respect of this agreement.
9.8 WAIVERS; REMEDIES. The observance of any term of this agreement may
be waived (whether generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce the term, but
any waiver is effective only if in a writing signed by the party against which
the waiver is to be asserted. Except as otherwise provided in this agreement, no
failure or delay of either party in exercising any power or right under this
agreement will operate as a waiver of the power or right, nor will any single or
partial exercise of any right or power preclude any other or further exercise of
the right or power or the exercise of any other right or power.
Sprint Spectrum is not in breach of any covenant in this agreement, if
the occurrence of the event or Sprint Spectrum's non-compliance with the
covenant results primarily from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the ability to comply with the covenant;
(ii) the failure of any governmental authority to grant any
consent, approval, waiver, or authorization or any delay on the part of any
governmental authority in granting any consent, approval, waiver or
authorization;
(iii) the failure of any vendor to deliver in a timely manner
any equipment or service; or
11
15
(iv) any act of God, act of war or insurrection, riot, fire,
accident, explosion, labor unrest, strike, civil unrest, work stoppage,
condemnation- or any similar cause or event not reasonably within the control of
Sprint Spectrum.
9.9 WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
9.10 BINDING EFFECT. Except as otherwise provided in this agreement,
this agreement is binding upon and inures to the benefit of the parties and
their respective and permitted successors, transferees, and assigns, including
any permitted successor, transferee or assignee of the Management Agreement. The
parties intend that this agreement bind only the party signing this agreement
and that the agreement is not binding on the Related Parties of a party unless
the agreement provides that Related Parties are bound.
9.11 GOVERNING LAW. The internal laws of the State of Missouri (without
regard to principles of conflicts of law) govern the validity of this agreement,
the construction of its terms, and the interpretation of the rights and duties
of the parties.
9.12 SEVERABILITY. The parties intend every provision of this agreement
to be severable. If any provision of this agreement is held to be illegal,
invalid, or unenforceable for any reason, the parties intend that a court
enforce the provision to the maximum extent permissible so as to effect the
intent of the parties (including the enforcement of the remaining provisions).
If necessary to effect the intent of the parties, the parties will negotiate in
good faith to amend this agreement to replace the unenforceable provision with
an enforceable provision that reflects the original intent of the parties.
9.13 LIMITATION OF LIABILITY. NO PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES, OR LOSS OF PROFITS, ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE
CONDUCT OF BUSINESS UNDER, OR BREACH OF, THIS AGREEMENT, EXCEPT WHERE SUCH
DAMAGES OR LOSS OF PROFITS ARE CLAIMED BY OR AWARDED TO A THIRD PARTY IN A CLAIM
OR ACTION AGAINST WHICH A PARTY TO THIS AGREEMENT HAS A SPECIFIC OBLIGATION TO
INDEMNIFY ANOTHER PARTY TO THIS AGREEMENT.
9.14 NO ASSIGNMENT; EXCEPTIONS. This agreement may only be assigned in
conjunction with and to the same party or parties to whom the Management
Agreement has been validly assigned under the Management Agreement's terms and
conditions.
9.15 DISCLAIMER OF AGENCY. Neither party by this agreement makes the
other party a legal representative or agent of the party, nor does either party
have the right to obligate the other party in any MANNER, EXCEPT if the other
party expressly permits the obligation by the party or except for provisions in
this agreement expressly authorizing one party to obligate the other.
12
16
9.16 INDEPENDENT CONTRACTORS. The parties do not intend to create any
partnership, joint venture or other profit-sharing arrangement, landlord-tenant
or lessor-lessee relationship, employer-employee relationship, or any other
relationship other than that expressly provided in this agreement. Neither party
to this agreement has any fiduciary duty to the other party.
9.17 EXPENSE. Each party bears the expense of complying with this
agreement except as otherwise expressly provided in this agreement.
9.18 GENERAL TERMS.
(a) This agreement, including the attached Schedule of
Definitions, is to be interpreted in accordance with the following rules of
construction:
(i) The definitions in this agreement apply equally
to both the singular and plural forms of the terms defined unless the context
otherwise requires;
(ii) The words "include," "includes" and "including"
are deemed to be followed by the phrase "without limitation";
(iii) All references in this agreement to Sections
and Exhibits are references to Sections of, and Exhibits to, this agreement,
unless otherwise specified; and
(iv) All references to any agreement or other
instrument or statute or regulation are to it as amended and supplemented from
time to time (and, in the case of a statute or regulation, to any corresponding
provisions of successor statutes or regulations), unless the context otherwise
requires.
(b) Any reference in this agreement to a "day" or number of
"days" (without the explicit qualification of "Business") is a reference to a
calendar day or number of calendar days. If any action or notice is to be taken
or given on or by a particular calendar day, and the calendar day is not a
Business Day, then the action or notice may be taken or given on the next
Business Day.
9.19 CONFLICTS MANAGEMENT AGREEMENT. The provisions of the Management
Agreement govern over those of this Services Agreement if the provisions
contained in this agreement conflict with analogous provisions in the Management
Agreement.
9.20 MASTER SIGNATURE PAGE. Each party agrees that it will execute the
Master Signature Page that evidences such party's agreement to execute, become a
party to and be bound by this agreement, which document is incorporated herein
by this reference.
13