SERVICES AGREEMENT
THIS AGREEMENT is made by and among ▇▇▇▇▇▇ Cellular of Maryland, Inc., an
Oklahoma Corporation ("▇▇▇▇▇▇"), Maryland Wireless Communications Limited
Partnership, a Maryland Limited Partnership, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual
(collectively referred to as "▇▇▇▇▇▇▇"), and Washington Baltimore Cellular
Limited Partnership, ("WBCP"), a Virginia Limited Partnership.
WHEREAS, ▇▇▇▇▇▇▇ holds a license from the Federal Communications Commission
("FCC") to construct and operate a cellular radio telecommunications system on
frequency Block A, the non-wireline system, to serve the Maryland RSA 2, and
WHEREAS, ▇▇▇▇▇▇ has a Management Agreement with ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ have entered into an agreement by which ▇▇▇▇▇▇ will acquire Maryland
RSA 2, and have filed with the FCC for approval of a transfer of control of
the license from ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇, and
WHEREAS, WBCP owns and operates switching and other equipment capable of
providing switching and other services to Maryland RSA 2, and possesses the
skills required for the efficient operation of cellular radio
telecommunications systems and currently operates the non-wireline cellular
telephone system which serves the Maryland RSA 2, pursuant to an interim
authority granted by the FCC; and
WHEREAS, ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ intend to construct a physical wireless
network in Maryland RSA 2 and seek to provide service to customers by leasing
WBCP's facilities located in Maryland RSA 2 ("Leased Facilities") and through
the provision by WBCP of switching services provided during construction of
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ network, and
WHEREAS, also pursuant to the Interim Operating Authority Order issued by
the FCC, WBCP is obligated to assign for compensation its existing Maryland
RSA 2 customers to the licensee of Maryland RSA 2 upon reaching an agreed upon
price, and
WHEREAS, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ wish to enter into an agreement with WBCP to
acquire those customers in Maryland RSA 2, and
WHEREAS, Dobson, Coleman, and WBCP wish to agree to the mutual roaming
procedures and reciprocal wholesale exchange roaming rates on the terms and
conditions set forth herein, and upon execution of a Rate Addendum, attached
hereto as Attachment D, for the benefit of their respective customers; and,
WHEREAS, WBCP, ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ seek to enter into an agreement to
achieve certain economies of scale, by arranging to provide for the lease by
WBCP to ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ of certain network facilities located in Maryland
RSA 2 ("Leased Facilities"), as well as providing switching capacity from its
Switch, as defined below, and to provide for certain other specified services,
all on the terms and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is agreed as follows:
ARTICLE I
DEFINITIONS
1.1 "Backhaul Facilities" shall mean any equipment and facilities, whether
owned or leased, over which Traffic is carried between the cell sites and
the Switch or to and from cell sites and the PSTN in either WBCP's System
or ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System.
1.2 "Basic Switching Services" shall mean the following services:
a. Switching services,
b. monitoring of all Leased Facilities or ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System's cell
site alarms and notification of alarms;
c. Daily printing of all alarms;
d. Weekly report of all outages;
e. Reporting of all field problems to vendors and assisting the vendors
in problem resolution;
f. Changing cell site radio parameters (power levels, frequency
assignments, etc.)
1.3 "▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System" shall mean all cellular equipment, microwave
equipment, hardware, software, antennae, transmitting or receiving
equipment, cell site equipment and ancillary and related equipment and
facilities which ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ currently has in place either
through acquisition or lease, (other than "Leased Facilities" as defined
in this Agreement) or will acquire or lease in the future in order to
construct and operate a wireless system in Maryland RSA 2, to deliver
Traffic between and among cell sites and any points of interconnection to
the PSTN, as defined below, in Maryland RSA 2 and to and from the Switch.
1.4 "Enhanced Switching Services" shall mean the services described as "Basic
Switching Services" as defined herein, and the following additional
services:
a. maintenance and diagnostics for ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System;
b. maintenance and diagnostics by WBCP on the Leased Facilities shall
also be considered an Enhanced Switching Service;
c. database maintenance, excluding customer records, as is requested
from time to time by ▇▇▇▇▇▇/▇▇▇▇▇▇▇;
d. weekly traffic reports for the System;
e. recording services, including provision of AMA data on a monthly
basis to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ (or to its designated billing vendor);
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f. responding to alarms on the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System or on the Leased
Facilities.
1.5 "Leased Facilities" shall mean all cellular equipment, microwave
equipment, hardware, software, antennae, transmitting or receiving
equipment, cell site equipment, and ancillary and related equipment and
facilities currently used by WBCP to operate a wireless system that are
located within or serve Maryland RSA 2, or to deliver Traffic between and
among cell sites and points of interconnection to the PSTN in Maryland
RSA 2, and to deliver Traffic to and from cell sites in Maryland RSA 2 to
the Switch, all of such facilities are owned or leased by WBCP and leased
to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ in accordance with this Agreement. Nothing in this
Agreement gives ▇▇▇▇▇▇/▇▇▇▇▇▇▇ an interest in the Switch.
1.6 "WBCP System" shall mean all equipment owned and operated by WBCP other
than that equipment defined herein as "Leased Facilities."
1.7 "MOU" ("Minutes of Use") shall mean the number of minutes of airtime used
by the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Systems or Leased Facilities for switched calls
whether such calls are completed or not completed, and whether a ▇▇▇▇ for
such calls will or will not be rendered to ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇'▇
customers. All minutes shall be rounded to increments of one minute and
any fraction of one minute shall be rounded up to the next whole minute,
unless otherwise explicitly provided for elsewhere in this Agreement. If
WBCP changes its billing practices to generally ▇▇▇▇ its customers in
increments less than one minute, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall be billed in the
same increments in which WBCP bills its customers.
1.8 "Pro-rata" shall be measured with respect to Fixed costs, by the number
of minutes of use ("MOU") switched on behalf of ▇▇▇▇▇▇/▇▇▇▇▇▇▇ compared
against the total MOU switched by WBCP. With respect to variable costs,
the relationship between the number of transactions processed for
▇▇▇▇▇▇/▇▇▇▇▇▇▇ in relation to all transactions processed by the Switch.
1.9 "PSTN" shall mean the landline public switched telephone network.
1.10 "Roaming Agreement" shall mean the standard agreement as is currently
being utilized, by ▇▇▇▇▇▇ and WBCP in their existing roaming agreement.
1.11 "Switch" shall mean the switching equipment owned by WBCP, including,
without limitation, all related hardware, software and ancillary and
related equipment and facilities collocated with such switching equipment
and required for such switching equipment to operate in accordance with
its specifications. "Switch" does not include (a) any equipment and
facilities which are part of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or (b) any Backhaul
Facilities.
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1.12 "Traffic" shall mean voice, data and associated electronic signals.
ARTICLE II
OWNERSHIP OF EQUIPMENT
2.1 WBCP's System. WBCP's System, including the Switch and the Leased
Facilities, has been purchased, leased or otherwise obtained by and are
owned by WBCP, subject only to the limited rights of ▇▇▇▇▇▇/▇▇▇▇▇▇▇ to
lease switching capacity or equipment, as hereinafter provided.
2.2 ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System. Unless otherwise provided for in this Agreement,
▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ shall be fully responsible for the purchase,
Financing, installation and construction of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System, and
for obtaining Backhaul Facilities necessary to ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System.
WBCP shall have no rights of ownership or operation of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
System, other than the Leased Facilities leased to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ by WBCP
as part of this Agreement.
2.3 Interconnection Facilities. ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ shall be responsible
for paying all reasonable and pre-agreed charges associated with circuits
necessary to Connect their System to WBCP's System (whether such circuits
are obtained from a wireline carrier or involve ▇▇▇▇▇▇/▇▇▇▇▇▇▇-owned or
leased microwave facilities). ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ are also responsible
for paying all charges associated with circuits necessary to interconnect
their System to the PSTN for the purpose of obtaining telephone numbers
for their new customers (whether such circuits are connected directly to
their System or to WBCP's Switch). ▇▇▇▇▇▇/▇▇▇▇▇▇▇ may utilize the
existing circuits of WBCP to access an Interexchange Carrier for the
provision of long-distance (InterLATA or otherwise) calling, provided
WBCP's circuits have the capacity. Should ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ opt to use
WBCP's existing circuits, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ agree to reimburse WBCP for
their pro rata share of the fixed charges of the facility plus their
share of the variable costs (computed on an average effective rate). All
such facilities must be technically compatible with WBCP's System.
2.4 Modification and Adjustment. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ agree and acknowledge
that, although WBCP's System, (including the Switch) and the Leased
Facilities are efficient and functional as of the date of this Agreement,
the evolving nature of wireless technology may render portions of WBCP's
System inefficient or unsuitable for the service that WBCP wishes to
deliver to its customers. WBCP reserves the right, in its sole discretion
and at its expense, to make any and all changes to WBCP's Systems and the
Leased Facilities that it may choose. If WBCP elects to make material
changes to WBCP's Systems and Leased Facilities as provided herein that
will impact service provided to ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ customers. WBCP agrees
to give ▇▇▇▇▇▇/▇▇▇▇▇▇▇ forty-five (45) days advance notice of any such
material change, including adequate details to permit ▇▇▇▇▇▇/▇▇▇▇▇▇▇ to
make any adjustments to its operations because of
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such changes. In the event any such change impacts ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
System, they shall have the option, at their sole discretion, of
terminating this Agreement under Section 6.2(c) below, or of making, at
their sole expense, all changes, modifications or adjustments to their
System which may be necessary or appropriate to adapt to such changes to
WBCP's System.
ARTICLE III
MANAGEMENT AND OPERATION SERVICES
3.1 a. Services Offered by WBCP. During the term of this Agreement,
▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall lease from WBCP all of WBCP's equipment located
within the geographic confines of Maryland RSA 2, as defined in
Article 1.5 ("Leased Facilities") for the monthly recurring charge
set forth on Attachment A. A list of these sites is attached hereto
as Attachment E. Also, during the term of this Agreement, WBCP shall
operate and maintain the Switch and the Leased Facilities to perform
the functions with regard to ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System as are described
in this Agreement for the fees set forth in Attachment A,
incorporated herein by reference. Those functions may be either
Enhanced or Basic Switching Services, as both terms are defined
herein, and include processing calls at the Switch, monitoring of
alarms, notification of alarms, processing cell to cell handoff of
calls, production of magnetic (or comparable medium) ▇▇▇▇ billing
tapes which contain basic billing information, production of reports
as described herein, and intersystem handoffs (as appropriate). Any
and all changes, improvements, modifications, updates to and new
capabilities or subscriber features or services (all known as "new
capabilities") offered through the Switch shall be made available to
▇▇▇▇▇▇/▇▇▇▇▇▇▇ on an equal and non-discriminatory basis, provided
that if ▇▇▇▇▇▇/▇▇▇▇▇▇▇ choose to acquire the new capabilities of the
Switch, WBCP may charge an additional fee to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ for such
new capabilities, and provided further that ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall have
no right to require WBCP to purchase or provide to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ any
new capability which WBCP chooses not to install for its own use in
serving WBCP's System. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ is responsible for responding
to alarms on the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System upon notification of an alarm
by WBCP. Responding to an alarm on the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System by WBCP
is an Enhanced Switching Service that ▇▇▇▇▇▇/▇▇▇▇▇▇▇ may request.
3.1 b. In the event WBCP sells the Leased Facilities to ▇▇▇▇▇▇/▇▇▇▇▇▇▇,
pursuant to a separate agreement, WBCP shall continue to switch for
▇▇▇▇▇▇/▇▇▇▇▇▇▇ pursuant to the terms of this Agreement, unless or
until ▇▇▇▇▇▇/▇▇▇▇▇▇▇ purchases a switch from WBCP or a vendor, and
becomes fully operational. Once ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System becomes fully
operational, and as such no longer requires switching services from
WBCP, and upon notification to
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WBCP of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ intent to terminate WBCP's switching and
leasing services pursuant to the terms of this Agreement at Section
6(2)(b), governing termination, the remaining provisions of this
Agreement, including but not limited to roaming provisions,
provisions for the sale of WBCP's customers, and ratifying contour
extensions shall survive following the termination of the switching
and leasing services.
3.2 System Maintenance or Repair.
a. WBCP shall, at its sole expense, maintain and repair, or cause to be
maintained and repaired, WBCP's System, including the Switch, and all
components thereof. Such maintenance shall be in accordance with
industry standards.
b. WBCP shall also be responsible for all corrective and preventive
maintenance, repair and diagnostics for all network facilities and
associated equipment used by ▇▇▇▇▇▇/▇▇▇▇▇▇▇, including the Leased
Facilities, (other than the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System) including all
necessary coordination with other leased facility carriers. Such
maintenance shall be in accordance with industry standards.
▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay WBCP's fees for this service as per
Attachment A to this Agreement which sets forth "Enhanced Switching
Services" fees.
▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agrees to maintain ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and WBCP
agrees to maintain WBCP's System and the Leased Facilities such that
each shall obtain a minimum system performance rating of P02 grade,
calculated during the average ten high-day busy hour in any month.
▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ and WBCP further agree that any personnel maintaining
or repairing portions of their respective systems shall be certified
as meeting certain industry standards and shall have attended all
appropriate vendor training courses on equipment used in the relevant
system. All vendor specifications shall be met or exceeded by the
applicable party's construction, operation or repair of each system,
including without limitation, use of required test equipment.
▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ understand that WBCP's maintenance or repair of the
Leased Facilities and the Switch or WBCP's System may upon occasion
require that a portion of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or the Leased
Facilities to be removed from service temporarily. WBCP shall notify
▇▇▇▇▇▇/▇▇▇▇▇▇▇ at least thirty (30) days prior to performing such
routine maintenance and repair that results in an interruption of
service to ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ customers. WBCP shall make all reasonable
efforts to minimize the necessity for and length of any such
interruption of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System. Nothing in this paragraph
shall
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prevent WBCP from making an immediate interruption without prior
notice in order to comply with federal and/or state regulations, or
in the event of an emergency.
3.3 Access to Switch. WBCP shall provide to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ one (1) direct
electronic access to the Switch for purposes of activating or
deactivating a ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ subscriber's telephone number.
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ direct electronic access to the Switch shall be limited
to that necessary to perform the tasks previously mentioned. In the event
▇▇▇▇▇▇/▇▇▇▇▇▇▇ makes a decision that one direct connection unduly burdens
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ ability to provide efficient service in connecting and
disconnecting its customers, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ may request additional ports
and WBCP shall provide a reasonable number of ports at no additional
charge to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ if, in WBCP's discretion, the provision of
additional ports will not unduly limit WBCP's switch capacity. In the
event that WBCP's Switch is relocated, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay all
additional costs associated with the reconnection of direct electronic
access or with necessary security measures to ensure privacy of WBCP's
and ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ customer information. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall be
responsible for all costs associated with the direct electronic access to
WBCP's Switch, regardless if access is through a direct point to point
telephone service or through a dial-up and modem configuration.
3.4 Traffic Reports. WBCP shall supply weekly reports to ▇▇▇▇▇▇/▇▇▇▇▇▇▇
setting forth Traffic carried on ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and Leased
Facilities, which reports shall be in the same format employed by WBCP
from time to time.
3.5 Billing Tapes.
a. Unless otherwise agreed by the parties, WBCP shall weekly provide
▇▇▇▇▇▇/▇▇▇▇▇▇▇ (or ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ designated billing service) with
a magnetic (or comparable medium) billing tape containing basic
billing information. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall bear all costs associated
with converting such information into subscriber bills. WBCP shall
have no responsibility to arrange or manage production of
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ subscriber bills, except as specifically mentioned
in Attachment A. WBCP will provide maintenance to the Switch database
on behalf of ▇▇▇▇▇▇/▇▇▇▇▇▇▇ as part of Enhanced Switched Services, as
defined herein.
b. Actual out of pocket costs incurred by WBCP to configure its Switch
to accommodate ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ billing needs (including any start-up
charges from WBCP's billing vendor) will be borne by ▇▇▇▇▇▇/▇▇▇▇▇▇▇.
▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall bear all costs charged by WBCP's billing vendor
with respect to additional billing volume of ▇▇▇▇▇▇/▇▇▇▇▇▇▇ in
accordance with Attachment A.
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c. In the event ▇▇▇▇▇▇/▇▇▇▇▇▇▇ elect to arrange for electronic transfer
of billing data to its billing vendor or other outside source used in
its billing process, and if the WBCP equipment provides the ability
for such electronic transfer of billing data, WBCP will provide this
electronic transfer with all costs for such direct connection being
borne by ▇▇▇▇▇▇/▇▇▇▇▇▇▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ may retain this electronic
transfer of billing data only so long as all terms of this Agreement
remain in force and effect.
3.6 Review of Information. If ▇▇▇▇▇▇/▇▇▇▇▇▇▇ should question the validity of
data set forth in the Traffic reports or billing tapes, WBCP and
▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall cooperate in good faith to resolve any such
questions. To that end, WBCP shall permit ▇▇▇▇▇▇/▇▇▇▇▇▇▇ to review all
information related to such data and the processes used to produce such
data, and shall make available any personnel of WBCP necessary to assist
in such review at reasonable times and upon reasonable prior notice.
3.7 Roamer Verification.
a. WBCP shall configure and program the Switch to perform pre-call
roamer verification at no additional charge for calls placed on
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or on the Leased Facilities by subscribers
whose number resides in WBCP's Switch without the necessity of
sending such calls to a third-party clearinghouse.
b. WBCP shall arrange for the provision of pre-call roamer verification
for calls placed by any person whose number does not reside in WBCP's
Switch, and carried on ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System upon ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
payment of an additional charge. This additional charge shall be
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ pro rata share of all fixed costs associated with
providing this roamer verification service, and all variable charges
shall be allocated based upon the number of verifications originating
on the respective Systems. Notwithstanding anything herein to the
contrary, ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ share of fixed charges shall not exceed
the incremental increase in roamer verification costs attributable to
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or the Leased Facilities.
3.8 Service Not Included. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ acknowledge that the following
services are not included under this Agreement and are ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
responsibility unless otherwise provided in separate agreements executed
by the parties or discussed in Schedule A:
a. Customer Service for ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ Subscribers;
9
b. Billing for access to or usage of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or Leased
Facilities (other than the production of billing tapes) (i.e., WBCP
is not responsible for providing bills to or collecting amounts from
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ customers);
c. Backhaul Facilities for the carriage of Traffic between cell sites in
the ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System, between the ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and
points of interconnection to the PSTN in Maryland RSA 2, and between
the ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and the Switch, excluding the Leased
Facilities.
3.9 Service Interruption.
a. The parties agree and acknowledge that, given the complex nature of
the ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and the Leased Facilities, and the WBCP's
System, including the Switch, service interruptions may be
unavoidable. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agree that WBCP may interrupt service to
▇▇▇▇▇▇/▇▇▇▇▇▇▇ without advance notice if such interruption is
necessary to maintain integrity of WBCP's System. WBCP and
▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall use their best efforts to avoid any unnecessary
service interruptions and, where required, to work with each other to
plan and coordinate necessary service interruptions so as to minimize
disruptions to their customers.
b. WBCP agrees to maintain the integrity of the ▇▇▇▇▇▇/▇▇▇▇▇▇▇ System
and the Leased Facilities on the same standard that it operates its
own facilities and agrees to use its best efforts to be
non-discriminatory in addressing maintenance of the ▇▇▇▇▇▇/▇▇▇▇▇▇▇
System and the Leased Facilities compared to any other system that
WBCP owns or operates.
ARTICLE IV
REVENUE, ROAMING, SERVICE CHARGES AND COSTS
4.1 Assignment of Revenues. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall operate using the same SID
Number ("System Identification Number") as used by WBCP in its adjoining
systems, and ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall establish a separate BID Number
("Billing Identification Number") in order to segregate roaming and other
traffic. WBCP and ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall cooperate to configure and program
the Switch and make arrangements with each of their respective billing
vendors so as to insure that revenues are appropriately assigned between
WBCP's and ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ Systems, including Leased Facilities,
according to the following guidelines:
a. Access revenue and feature revenue (i.e. revenue derived from such
features as three-way calling, call forwarding, custom billing. and
the like) shall be
10
assigned according to the subscriber's NXX, i.e., the first three
digits in the subscriber's seven-digit cellular telephone number.
b. Usage revenue (whether derived from local subscribers or roamers)
shall be assigned according to the cell site which carries the
Traffic underlying such revenue, with the intention that the revenue
from any one call shall be assigned to the cell site upon which such
call originated.
4.2 Roaming.
a. Individual Roamer Agreements.
(i) Subject to the provisions of Section 4.2(a)(ii),
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ subscribers shall be entitled to roam in
other cellular systems based upon agreements entered into
between ▇▇▇▇▇▇/▇▇▇▇▇▇▇ and the relevant carrier. Subscribers
to such other cellular systems shall have the right to roam on
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System, including the Leased Facilities,
based on the roaming agreements ▇▇▇▇▇▇/▇▇▇▇▇▇▇ negotiates.
Nothing in this Agreement shall be construed to permit
▇▇▇▇▇▇/▇▇▇▇▇▇▇ to rely upon the terms of WBCP's roamer
agreements as entered into or modified from time to time by
WBCP. Neither shall WBCP have the right to rely upon the terms
of ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ roaming agreements with any other
provider. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ cannot agree to technical
arrangements in its roaming agreements that WBCP does not
currently have in place so long as WBCP is providing switching
services to ▇▇▇▇▇▇/▇▇▇▇▇▇▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ will send their own
tapes to the roaming clearinghouse via their billing vendors.
(ii) ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agree that ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall bear all of the
fixed and variable costs associated with modifying the Switch
and WBCP's System, including the Leased Facilities, to permit
such separate roaming agreements and arrangements and provided
further that ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay to WBCP an additional
amount equal to 5% of the initial fixed costs incurred in
modifying the Switch and WBCP's System and the Leased
Facilities to permit such separate agreements and arrangements
to compensate WBCP for its administrative expenses.
(iii) WBCP and ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agree that their subscribers shall be
entitled to roam in the other party's service areas at the
reciprocal rate of $0.50 (fifty cents) per minute, with no
daily subscription fees pursuant to the terms of the Rate
Addendum attached hereto as Attachment D.
11
(iv) WBCP and ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agree that their subscribers shall not
be charged any toll or "long distance" or other fees for
roaming in the other party's service areas. All calls by
either party's subscribers that both originate and terminate
in the service areas of the parties shall be treated as
"local" calling, as such local calling scope applies to the
party's Own Subscribers. Notwithstanding anything to the
contrary, it is the intent of the parties that "long distance"
charges may apply to calls placed to areas outside of the
parties' home service areas.
b. Assignment for Roamer Revenues. All wholesale roamer charges
generated by WBCP subscribers or other non-▇▇▇▇▇▇/▇▇▇▇▇▇▇ subscribers
using ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or Leased facilities, shall be
allocated to ▇▇▇▇▇▇/▇▇▇▇▇▇▇, and all wholesale roamer charges
generated by ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ subscribers using WBCP or other
non-▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ Systems shall be ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
responsibility. Similarly, all wholesale roamer charges generated by
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ Subscribers or other non-WBCP subscribers using
WBCP's Systems shall be allocated to WBCP, and all wholesale roamer
charges generated by WBCP's subscribers using ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ or
other non-WBCP systems shall be WBCP's responsibility. ▇▇▇▇▇▇/▇▇▇▇▇▇▇
and WBCP agree to pay and indemnify each other against all costs
(including reasonable attorneys' fees), expenses, liabilities and
other damages or claims arising out of roamer charges generated by
their respective subscribers. Each Party is responsible for the fraud
generated on the Mobile Identification Numbers ("MINs") associated
with the Party's subscribers. WBCP will monitor the Leased Facilities
for indicia of fraud with the same diligence by which it monitors
WBCP's system, and shall report evidence of fraud to ▇▇▇▇▇▇/▇▇▇▇▇▇▇
in a timely manner. Notwithstanding anything in this Agreement, WBCP
is not required to upgrade or add to the current fraud detection
capability of the Leased Facilities unless all cost for such upgrade
or addition is borne by ▇▇▇▇▇▇/▇▇▇▇▇▇▇. Each Party is responsible for
settlement with its roaming partners.
c. Charges for Functions. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay to WBCP the pro rata
share of all fixed expenses and variable expenses associated with
providing roamer verification services, as set forth in Section 3.8.
Should ▇▇▇▇▇▇/▇▇▇▇▇▇▇ choose to use a billing vendor other than that
being used by WBCP, then WBCP may incur charges associated with
having WBCP's billing vendor strip ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ roamer call
records off of the billing tapes, and such charges will be passed
through to ▇▇▇▇▇▇/▇▇▇▇▇▇▇, plus a five percent (5%) markup to cover
administrative costs.
4.3 Service Charges and Costs. For the rights granted to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ by
WBCP hereunder, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay to WBCP "Service Charges" as
listed on
12
Attachment A attached hereto, together with the retail rates ("costs")
charged by the supplier of third party services, such as long-distance,
toll, Operator-assisted calls, directory assistance, time and
temperature, emergency bureau, in each case attributable to usage of
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System and the Leased Facilities. WBCP reserves the
right to change "service charges as WBCP deems appropriate on an annual
basis, after giving ▇▇▇▇▇▇/▇▇▇▇▇▇▇ ninety (90) days written notice of
proposed changes.
4.4 Payment. WBCP shall submit to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ within 30 days after the end
of each calendar month an invoice listing Service Charges and Costs
payable by ▇▇▇▇▇▇/▇▇▇▇▇▇▇ hereunder in respect of the prior month (either
on a calendar or billing cycle basis). ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall pay such
invoices in full within 30 days of receipt thereof, without deduction or
offset. Any payments not made in full within said thirty (30) day period
shall accrue interest at the lesser of the maximum rate authorized by law
or at eighteen percent (18%) per annum until paid in full. Any disputed
amount shall be paid in full as outlined above, regardless of the
dispute. Should the dispute ultimately be resolved in favor of
▇▇▇▇▇▇/▇▇▇▇▇▇▇, WBCP will refund any amount due within thirty (30) days.
4.5 Assignment of Customers. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ agrees to purchase those
customers who have activated NXX codes within the confines of the
▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ("▇▇▇▇▇▇▇▇ ▇▇▇ ▇ Customers") for the price of $280.00 (Two
hundred eighty dollars) per customer. The customers being purchased by
▇▇▇▇▇▇/▇▇▇▇▇▇▇ are listed on Attachment B. The total amount will be paid
in full by ▇▇▇▇▇▇/▇▇▇▇▇▇▇ to WBCP no later than January 11, 1997.
Further, as long as those customers subscribe to cellular service from
▇▇▇▇▇▇/▇▇▇▇▇▇▇, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ will be responsible to pay the residuals
to the dealers and retailers who originated those customers in accordance
with WBCP's agreements with said dealers and retailers, as agreed between
▇▇▇▇▇▇/▇▇▇▇▇▇▇ and the agents/retailers the parties agree WBCP will not
be responsible for any payments to the agents/retailers as of January 1,
1997.
The customers to be acquired by ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall be only those
customers that are in WBCP's System under its standard credit and
disconnect policies now in effect, and WBCP agrees to follow those
policies up to the date of acquisition; ▇▇▇▇▇▇/▇▇▇▇▇▇▇ have no obligation
to pay for or acquire customers that are in the system outside of the
standard WBCP credit and disconnect policies.
It is acknowledged that all parties to this Agreement desire to have a
smooth transition of those customers acquired by ▇▇▇▇▇▇/▇▇▇▇▇▇▇ from
WBCP; to that end, the parties agree that they will work together to
devise an acceptable notice to the customers and that the same shall be
sent to the customers at a mutually agreed time.
The assignment of the cellular service agreements are in "as is"
condition without warranties expressed or implied. WBCP makes no
representations or warranties on the
13
assignability of said customer contracts. Further, WBCP makes no
representations or warranties on the enforceability of the agreements by
▇▇▇▇▇▇/▇▇▇▇▇▇▇ once the agreements are assigned to it. WBCP fully
discloses that some or a sizeable portion of said customers may object to
the attempted assignment and may contend successfully that if
▇▇▇▇▇▇/▇▇▇▇▇▇▇ cannot or chooses not to provide cellular service at the
same rate, geographic area, terms, conditions, and/or local calling area
as presently being provided to said customers by WBCP that their cellular
service agreements are personal in nature and therefore not assignable.
WBCP will have no responsibility to attempt to enforce the contracts once
they are assigned to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ and will have no obligation to
defend, indemnify or hold harmless from any suits that may be brought
against ▇▇▇▇▇▇/▇▇▇▇▇▇▇ as a result of the attempted assignment. Further,
WBCP will have no obligation to refund any amount paid by ▇▇▇▇▇▇/▇▇▇▇▇▇▇
for said assignments in the event that said assignments are subsequently
determined invalid or unenforceable.
4.6 Ratification of Contour Extensions. The parties hereby ratify and approve
those contour extensions into Maryland RSA 2 by WBCP, and into WBCP's
Systems by Maryland RSA 2, as identified on Attachment C, in accordance
with all relevant FCC rules and regulations, with said extensions to
remain as configured, absent interference, until WBCP no longer provides
switching services or Leased Facilities to ▇▇▇▇▇▇/▇▇▇▇▇▇▇. After WBCP
ceases to provide switching service or Leased Facilities to
▇▇▇▇▇▇/▇▇▇▇▇▇▇, the parties agree to negotiate in good faith to enter
into agreements for reasonable contour extensions into the service areas
of the Parties. Both parties agree to withdraw within a reasonable time
upon written notice of a significant interference that cannot be
ameliorated by any reasonable means other than withdrawal.
4.7 The Parties agree to negotiate in good faith to assign the existing
agency/dealer agreements between WBCP and agents/dealers located within
the geographic confines of Maryland RSA 2 to ▇▇▇▇▇▇/▇▇▇▇▇▇▇, subject to
the consent of the agents/dealers and ▇▇▇▇▇▇/▇▇▇▇▇▇▇.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Mutual Representations, Warranties and Covenants.
Each of the parties represent, warrants and covenants to the other as
follows:
a. It is an individual, or a partnership or a corporation organized and
validly existing under the laws of the jurisdiction of its
organization;
23
14
b. It has full power and authority and authority to execute and perform this
Agreement;
c. The execution, delivery, and performance of this Agreement has been duly
authorized by all necessary action on its part and is binding and
enforceable against all;
d. Except as specifically noted herein with regard to customer cellular
service agreements, the execution, delivery, and performance of this
Agreement will not conflict with, result in a breach of, or cause a default
under (with or without the giving of notice or the passage of time, or
both), its organization agreements, or any material agreement or instrument
to which it is a party or by which it or any of its property is bound, nor
will it conflict with or violate any statute, law, rule, regulation, order,
decree, license, permit or judgment of any court or governmental authority
which is binding upon it or its property;
e. There are no actions, suits or proceedings pending against it, or to its
knowledge threatened against it, which might have a materially adverse
effect upon its business, operations or financial condition or its ability
to perform its obligations under this Agreement;
f. It is, and will for the term hereof remain, qualified to hold a Block A
cellular construction permit or operating license, as appropriate, pursuant
to FCC and state rules and regulations; and
g. Should the acquisition agreement between ▇▇▇▇▇▇▇, Maryland Wireless
Communications L.P., and ▇▇▇▇▇▇ Cellular of Maryland, Inc., fail to be
consummated for any reason, the terms of this Agreement shall continue in
full force and effect between ▇▇▇▇▇▇▇, Maryland Wireless Communications
L.P. and WBCP for the duration set forth in Paragraph 6.1. If the
acquisition between ▇▇▇▇▇▇▇, Maryland Wireless Communications L.P. and
▇▇▇▇▇▇ Cellular of Maryland, Inc. is consummated, and neither ▇▇▇▇▇▇▇ nor
Maryland Wireless Communications L.P. retain an ownership interest in
Maryland RSA 2, then this Agreement shall continue in full force and effect
between ▇▇▇▇▇▇ Cellular of Maryland, Inc. and WBCP;
h. During the term of this Agreement each party shall (a) maintain in full
force and effect all necessary federal, state and local regulatory agency
authorizations, (b) timely fill all requests for renewals or replacements
thereof, (c) supply all such agencies with all other required information
which relate to the operation of its facilities, (d) cooperate fully with
the other party in maintenance, renewal and replacement of all such
necessary federal, state and local regulatory authorizations, (e) provide
to the other party all necessary information and
15
execute any and all said documents to accomplish the same, and (f)
observe and comply with all laws, rules, regulations, ordinances, codes,
orders, licenses and permits relating to its properties or applicable to
its business.
ARTICLE VI
TERM AND TERMINATION
6.1 a. Term. The initial term of this Agreement shall commence on January 1,
1997, and, unless earlier terminated as provided herein, shall
terminate on the third anniversary of the date hereof. This
Agreement shall be renewed automatically for successive terms of
two years unless either party gives written notice to the other
party of its intention to terminate this Agreement at least three
months prior to the end of the then-current term. The parties
acknowledge that the parties intend the switching and cell site
leasing services are for a limited duration while ▇▇▇▇▇▇/▇▇▇▇▇▇▇
decides upon its own equipment vendor and network design.
Accordingly, these services are priced with that limited duration
in mind. The parties agree the prices for these services may be
renegotiated should WBCP continue to provide these services beyond
twelve (12) months from January 1, 1997.
b. Except as provided herein ▇▇▇▇▇▇/▇▇▇▇▇▇▇ may upon thirty (30) days
notice to WBCP, terminate certain provisions of this Agreement as
it becomes capable of providing a service on its own that was
formerly provided by WBCP. Nothing in this paragraph or this
Agreement shall give ▇▇▇▇▇▇/▇▇▇▇▇▇▇ the right to terminate the
roaming rate agreed to between the parties during the term of this
Agreement, or the contour extension agreement, or the agreement
concerning the purchase of the customers.
6.2 Termination by ▇▇▇▇▇▇/▇▇▇▇▇▇▇.
a. WBCP Breach. If at any time during the term of this Agreement, WBCP
materially breaches this Agreement, and such breach remains uncured
for 30 days after written notice thereof by ▇▇▇▇▇▇/▇▇▇▇▇▇▇, then,
in addition to other remedies available to it, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall
have the right to terminate this Agreement, upon no less than 30
days written notice to WBCP, without payment of any penalty or
other amount to WBCP (except for amounts due WBCP hereunder for
periods prior to the termination date).
b. Installation of Compatible Equipment. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall have the
right to terminate this Agreement upon thirty (30) days prior
notice if ▇▇▇▇▇▇/▇▇▇▇▇▇▇ install in Maryland RSA 2 and covenant to
operate for the remainder of the current term of this Agreement a
wireless system, which will permit
16
transparent, seamless automatic handoff of calls in process between
WBCP's System and ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System, and which is capable of
carrying out transparent area paging from WBCP's System. In the
event of termination under this Subparagraph 6.2(b), WBCP and
▇▇▇▇▇▇/▇▇▇▇▇▇▇ covenant to coordinate frequency usage on borders of
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ MSA and WBCP's RSA for the period equal to the
term which would have remained under this Agreement without such
termination so as to eliminate or minimize to the greatest extent
possible any frequency interference. Termination of the Agreement
pursuant to this subparagraph does not terminate the portion of the
Agreement relating to roaming, acquisition of subscribers, and
contour extensions, which will survive such termination.
c. Modification of System. If WBCP relocates, modifies or adjusts WBCP's
System including the Switch in a manner that materially hinders the
ability of the Switch to perform basic switching for
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System, or Leased Facilities, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall
have the right to terminate this Agreement effective upon the
activation by WBCP of such modification or adjustment, unless
▇▇▇▇▇▇/▇▇▇▇▇▇▇ determines to make changes to ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇
System, at ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ cost, to remain compatible with WBCP's
System. WBCP agrees to inform ▇▇▇▇▇▇/▇▇▇▇▇▇▇ of such modifications
at least six (6) months prior to such an event.
d. Transfer of Control. In the event of a transfer of direct or indirect
control of WBCP, or assignment by WBCP of this Agreement, to a
party other than an affiliate of WBCP, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall have
the right upon 90 days prior written notice to terminate this
Agreement.
6.3 Termination by WBCP.
▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Breach. In the event ▇▇▇▇▇▇/▇▇▇▇▇▇▇ fail to make
payment when due or Service Charges and costs hereunder, or
breaches any other material term of this Agreement, which failure
continues for a period of 30 days after written notice of such
failure is given to ▇▇▇▇▇▇/▇▇▇▇▇▇▇, then in such event WBCP shall
have the right to terminate this Agreement by giving ▇▇▇▇▇▇/▇▇▇▇▇▇▇
120 days written notice of such termination without payment of any
amount to ▇▇▇▇▇▇/▇▇▇▇▇▇▇, other than the payments due under this
Agreement. Provided that in the event that any breach of
▇▇▇▇▇▇/▇▇▇▇▇▇▇ which gives rise to a notice of termination by WBCP
involves a failure to make payment when due of Service Charges and
Costs, WBCP shall only be obligated to continue to provide service
to ▇▇▇▇▇▇/▇▇▇▇▇▇▇ during such 120 day period upon payment by the
15th day of each month of estimated Service Charges and Costs for
each month of such 120 day period. WBCP shall have the right to
17
demand advanced payment in an amount equal to the Service Charges
and Costs invoiced for the month preceding the month for which
advance payment is sought.
b. Transfer of Control. In the event of a transfer of direct or indirect
control of the Maryland RSA 2 license to a party other ▇▇▇▇▇▇ or an
affiliate of ▇▇▇▇▇▇, WBCP shall have the right upon 180 days prior
written notice to terminate this Agreement.
▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇-Actions. In the event that ▇▇▇▇▇▇/▇▇▇▇▇▇▇, in pursuing
its business goals and strategies, undertakes any action or actions
which substantially and materially harm the business of WBCP, WBCP
shall have the right upon 120 days prior written notice to
terminate this Agreement.
6.4 Rights Upon Termination. After the effective date of termination of this
Agreement, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall have no rights or claims with respect to
WBCP's System including the Switch and the Leased Facilities.
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ and WBCP's obligations under paragraphs 4.2(iii), 4.2(iv),
4.5, 4.6, and 8.1(a - g) shall survive termination of this Agreement.
Further, upon termination, ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall immediately remove, and bear
all charges relating thereto, the connecting or other facilities from WBCP's
premises.
ARTICLE VII
LIMITATION OF LIABILITY
7.1 Force Majeure. Neither of the parties hereto will be liable for
nonperformance or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such nonperformance,
defective performance or late performance is due to reasons outside such
party's control, including without limitation, acts of God, war (declared or
undeclared), acts (including failure to act) of any governmental authority,
riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents,
lightning, weather, earthquakes, storms, sinkholes, epidemics, strikes, or
delays of suppliers or subcontractors. Neither party shall be required to
settle any labor dispute in any manner which is deemed by that party to be
less than totally advantageous, in that party's sole discretion.
7.2 No Consequential or Special Damages. WBCP SHALL NOT BE RESPONSIBLE TO
▇▇▇▇▇▇/▇▇▇▇▇▇▇ FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES
TO ▇▇▇▇▇▇/▇▇▇▇▇▇▇, ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ SYSTEM OR ANY SUBSCRIBER OR CUSTOMER OF
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ SYSTEM OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATIONS,
ANY DAMAGE TO OR LOSS OF REVENUES, BUSINESS OR GOODWILL
18
SUFFERED BY ANY PERSON OR ENTITY FOR ANY FAILURE OF THE SWITCH OR LEASED
FACILITIES OR FAILURE OF PERFORMANCE HEREUNDER. WBCP'S LIABILITY TO
▇▇▇▇▇▇/▇▇▇▇▇▇▇ FOR ANY SUCH FAILURE SHALL BE LIMITED TO THE AMOUNT OF ANY
SERVICE CHARGES OR COSTS PAID BY ▇▇▇▇▇▇/▇▇▇▇▇▇▇ TO WBCP PURSUANT TO THIS
AGREEMENT FOR THE PERIOD OF ANY SUCH FAILURE, EXCEPT IN THE EVENT THAT THE
NEGLIGENCE IS GROSS OR INTENTIONAL.
Approved: WBCP's Initials DAR
-------------------------------
▇▇▇▇▇▇▇'▇ Initials WCC
-------------------------------
▇▇▇▇▇▇'▇ Initials ERA
-------------------------------
ARTICLE VIII
MISCELLANEOUS
8.1 Confidentiality Agreement
a. Each of the parties hereto hereby covenants and agrees that, during
the term of this Agreement and for all time thereafter, neither it,
nor any of its employees, agents, officers or directors, will at
any time make use of, divulge or disclose to any person, firm or
corporation any confidential or proprietary information about the
other party, without limitation, any information concerning the
other party's subscribers, their names, addresses, or telephone
numbers, whatever the source of such confidential or proprietary
information; provided, however, that this confidentiality agreement
shall not apply to information which is the public domain through
no act of the party desiring to disclose such.
b. Each party agrees that such confidential or proprietary information
concerning the other party shall only be disclosed to its employees
who have a valid business reason to know such information and then
only to the extent required for the performance of such employee's
duties.
c. A document need not be marked "confidential" or "proprietary" or
otherwise to be considered confidential or proprietary if it
contains the type of information described above or the content and
context of the information is indicative of a desire to remain
confidential.
d. Nothing herein shall restrict the right of any party to disclose
confidential or proprietary information which is ordered to be
disclosed pursuant to judicial or
19
other lawful governmental action, but only to the extent so
ordered, or as otherwise required by applicable law or regulation.
e. If either party is served with process to obtain any confidential or
proprietary information or subscriber records of the other party,
that party shall immediately notify the other party and permit the
other party to conduct the defense against disclosure.
f. Upon termination of this Agreement, each party shall return to the
other all confidential and proprietary information concerning the
other which exists in written form.
g. Each of the parties acknowledges and confirms that any failure on its
part to adhere strictly to the terms and conditions of this
paragraph is likely to cause substantial and irreparable injury to
the other party. Accordingly, each party confirms and agrees that,
in addition to all other remedies to which the other party may be
entitled under this Agreement or at law or in equity, the other
party shall be entitled to specific performance an do the equitable
relief, including temporary and permanent injunctive relief to
enforce the provisions of this paragraph.
8.2 No Joint Venture. Nothing herein is intended, or shall be construed, to
create a joint venture, partnership or other common business entity as among
WBCP and ▇▇▇▇▇▇/▇▇▇▇▇▇▇, and Nothing herein is intended, or shall be
construed, to impair or diminish WBCP's control over WBCP's System or Leased
Facilities or ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ control over ▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System. This
Agreement is not intended, nor shall it be construed, to make WBCP the agent
or co-licensee of ▇▇▇▇▇▇/▇▇▇▇▇▇▇, nor ▇▇▇▇▇▇/▇▇▇▇▇▇▇ the agent or co-licensee
of WBCP. Neither of the parties shall have the authority to bind or commit
the other party in any respect or to accept legal process on behalf of the
other party. Nothing herein gives ▇▇▇▇▇▇/▇▇▇▇▇▇▇ or WBCP claim to the
subscribers of the other or to the revenues of the other.
8.3 Governmental Approval. The performance of any obligations of any party
hereunder or the exercise of any rights hereunder by any party hereto that
may require FCC approval shall be subject to obtaining such approval. Pending
obtaining such FCC approval, neither party will do anything which is
contrary to the interests of the other party with respect to the subject
matter hereof.
8.4 Notices. Notices provided by this Agreement shall be in writing and
shall be effective when hand delivered, the day following being sent by
overnight courier service, or five days after being sent by certified U.S.
mail, postage prepaid, return receipt requested, to the following address:
20
If to ▇▇▇▇▇▇▇ or Maryland Wireless Communications, LP
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Lukas, McGowan, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to ▇▇▇▇▇▇ Cellular of Maryland Inc.
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇, PC
Attorneys at Law
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and to Washington Baltimore Cellular Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇
General Manager
Cellular One
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
21
▇▇▇ ▇▇▇▇▇
Vice President - Law
Cellular One
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, General Counsel & Secretary
Southwestern ▇▇▇▇ Mobile Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8.5 Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon parties hereto and their respective successors and assigns;
provided, however, that ▇▇▇▇▇▇/▇▇▇▇▇▇▇ shall not be permitted to assign any
of its rights hereunder without the prior written consent of the WBCP, which
consent shall not be unreasonably withheld. Nothing contained herein shall be
determined to create any rights enforceable by any person other than (a) a
party hereto or (b) the permitted successor or assigns of a party hereto.
8.6 Waiver. No waiver of any provisions of this Agreement, and no consent to
any default hereunder, shall be effective unless the same shall be in writing
and signed by an authorized representative of the party against whom such
waiver or consent is claimed.
8.7 Governing Law. This Agreement shall be governed by the laws of the State
of Maryland.
8.8 Entire Agreement. Subject to the contemporaneous written agreements
among the parties evidenced by Addendum, this Agreement expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements among them relating to the subject
matter hereof and no representations, oral or written, other than those
contained herein, shall have any force or effect. Amendments hereto shall be
effective only if made in writing and executed by all parties. All other
services, if any, to be provided by WBCP shall be governed by separate
agreements to be negotiated and executed by the parties.
8.9 Section Headings. The section headings and numberings of the articles,
sections and paragraphs in this Agreement are for convenience only and shall
not be construed to define or limit any of the terms contained herein or
affect the meaning or interpretation of this Agreement.
22
8.10 Severability. In the event any provision of this Agreement is held to be
unenforceable, such unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed to the greatest extent possible
as is such unenforceable provision had never been contained herein.
8.11 Counterparts. This Agreement may be executed in counterparts, each which
shall be deemed an original, and both of which shall constitute one and the
same instrument and shall become effective when each of the parties hereto
shall have delivered to the other a duly executed copy of the Agreement or a
facsimile thereof.
23
WASHINGTON BALTIMORE CELLULAR LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------------
Its:
-------------------------------
Dated:
-----------------------------
▇▇▇▇▇▇ CELLULAR OF MARYLAND, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Its:
-------------------------------
Dated:
-----------------------------
MARYLAND WIRELESS COMMUNICATIONS LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Its: General Partner
-------------------------------
Dated: 12-9-96
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Its:
-------------------------------
Dated: 12-9-96
-----------------------------
24
ATTACHMENT A - SERVICE CHARGES
1. Leased Facilities Charges:
$6,500.00 per month per cell site including the ports needed for the
Leased Facilities. This charge includes depreciation and operating
expenses associated with an individual existing cell site. Additional
sites will be provided only upon WBCP space and capacity availability at
additional fees to be negotiated by the parties.
2. Variable Switch Charges:
Peak calling time will be switched at $0.035 peak and for off peak, Basic
Switching Services and for Enhanced Switching Services. Each switched
minute (whether Basic or Enhanced) is incurred when the Switch is
processing Traffic which is originating or terminating on
▇▇▇▇▇▇/▇▇▇▇▇▇▇'▇ System or the Leased Facilities. It is understood that
switched minutes will be actual minutes or portions of minutes rounded up
to the next full minute on an individual basis. These minutes will be
derived from the reports generated off of the billing system.
3. Billing Tapes Charges:
There will be a $250.00 charge per tape for billing tapes sent by WBCP to
▇▇▇▇▇▇/▇▇▇▇▇▇▇.
4. Roamer Service Charge:
WBCP will provide roaming net settlement services, roaming administration
and coordination services and roaming validation services for $0.50 per
month for each Maryland RSA 2 customer.
5. Should ▇▇▇▇▇▇/▇▇▇▇▇▇▇ and WBCP agree that WBCP shall provide customer
service and/or billing and collection service for ▇▇▇▇▇▇/▇▇▇▇▇▇▇, the cost
for that service shall be:
Billing $2.50 per customer per month
Customer Care (service)
& Collections $2.00 per customer per month
25
WASHINGTON BALTIMORE CELLULAR LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Its:
-------------------------------------
Dated:
-----------------------------------
▇▇▇▇▇▇ CELLULAR OF MARYLAND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Its:
-------------------------------------
Dated:
-----------------------------------
MARYLAND WIRELESS COMMUNICATIONS Limited Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Its: General Partner
-------------------------------------
Dated: 12-9-96
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Its:
-------------------------------------
Dated: 12-9-96
-----------------------------------
Attachment C
Maryland 2 currently has the following contour extensions into
Washington/Baltimore and Virginia 12:
Cell Site Number Location
---------------- --------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
194 Leonardtown
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
258 Pocomoke City
272 Kent Island
303 Mutual
Maryland 2 currently has the following extensions into Wilmington and
Delaware 1 RSA:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
148 Salisbury
204 Princess ▇▇▇▇
205 ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
495 Federalsburg
564 Wicomico Park
Virginia 12 (a WBCP Market) currently has the following contour extensions
into Maryland 2:
▇▇▇ ▇▇▇ ▇▇▇▇▇
247 Kilmarnock
255 Montross
257 Accomack
260 Robely
266 Haynesville
383 Belbegger Creek
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇ ▇▇▇ currently has the following contour extensions into
Maryland 2:
3 ▇▇▇▇▇▇▇
32 Joppa
36 Severna Park
61 Annapolis
70 Dundalk
71 Aberdeen
76 Crownsville
104 Eastport
115 Middle River
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
198 ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇ construction)
395 Academy
407 Sharonville
Washington MSA currently has the following contour extensions into
Maryland 2:
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇
43 ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
112 Largo
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
180 PG Airpark
182 Hughesville
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Comcast currently has the following contour extensions into Maryland 2:
Cayots Pine Tree Corner
Smyrna Dover
Woodside ▇▇▇▇▇▇▇▇▇▇
Bridgeville Seaford
Angola Laurel
Ocean View Millsboro
Capitol City
2
Attachment D
(5 Pages)
November 6, 1996
▇▇▇▇ ▇▇▇▇▇▇
Manager of Roaming Services
▇▇▇▇▇▇ Cellular Systems
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: ADDENDUM TO INTERCARRIER ROAMER SERVICES AGREEMENTS ("AGREEMENTS")
BETWEEN SOUTHWESTERN ▇▇▇▇ MOBILE SYSTEMS, INC. AND ▇▇▇▇▇▇ CELLULAR
SYSTEMS AS REFERRED TO IN ATTACHMENT A.
The purpose of this letter is to set forth certain terms and conditions
agreed to by Southwestern ▇▇▇▇ Mobile Systems, Inc. ("SBMS") and ▇▇▇▇▇▇
Cellular Systems ("▇▇▇▇▇▇") with regard to the provision of automatic roaming
cellular service by SBMS to ▇▇▇▇▇▇ customers who desire to use SBMS systems,
and by ▇▇▇▇▇▇ to SBMS customers who desire to use the ▇▇▇▇▇▇ systems. ▇▇▇▇▇▇
and SBMS (hereinafter collectively referred to as the "parties") have agreed
to the terms and conditions as set forth below:
1) The effective date of this Addendum is January 1, 1997.
2) The parties agree to charge one another the rate of no daily
surcharge and $0.50 per minute when SBMS customers from the markets
listed in Attachment B travel to ▇▇▇▇▇▇ markets listed in Attachment
C and when ▇▇▇▇▇▇ customers from the markets listed in Attachment C
travel to SBMS markets listed in Attachment B. Rates apply to all
specified markets except where lower rates already exist.
3) The parties agree not to charge toll charges when SBMS customers from
the markets listed in Attachment B travel to ▇▇▇▇▇▇ markets listed in
Attachment C, and when ▇▇▇▇▇▇ customers from the markets listed in
Attachment C travel to SBMS markets listed in Attachment B. Rather,
the calls be treated as "local," except that "long distance" charges
will apply to calls placed to areas outside of the parties' home
service areas.
4) The parties agree that the rates set forth above apply to all roaming
service provided under the agreement(s) and all future markets as
reflected on technical data sheets that will be exchanged by the
parties. Rates can only be modified by mutual written agreement by
the parties hereto.
5) This Addendum may be signed in counterparts, each of which shall be
deemed an original.
6) To the extent of any conflict between the provision of this Addendum
and the Original Agreement and any previous Addendum, this Addendum
will control.
7) Except as set forth above, this Addendum does not change any other
terms of the Original Agreement or any previous addendum.
If you concur, please sign both originals and return them to me.
Regards,
▇▇▇▇▇▇ ▇▇▇▇▇▇
Manager - Intercarrier Services
Acknowledged and agreed upon with the intent to be legally bound hereby:
▇▇▇▇▇▇ CELLULAR SYSTEMS SOUTHWESTERN ▇▇▇▇ MOBILE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------------ --------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
---------------------- ------------------------
Title: CEO & President Title: President & CEO
--------------------- -----------------------
Date: 12-5-96 Date:
---------------------- ------------------------
ATTACHMENT A
REFERENCED AGREEMENTS
INTERCARRIER ROAMING AGREEMENTS EFFECTIVE DATE
------------------------------- --------------
Southwestern ▇▇▇▇ Mobile Systems, Inc March 1, 1995
ATTACHMENT B
COVERED MARKETS
SOUTHWESTERN ▇▇▇▇ MOBILE SYSTEMS, INC.
dba CELLULAR ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ (includes ▇▇▇▇▇▇▇▇▇ ▇▇▇)
▇▇▇▇▇ CULPEPER VA VA11
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ WV4
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ VA10
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ VA12
ATTACHMENT C
▇▇▇▇▇▇ CELLULAR SYSTEMS
Systems Covered as of January 1, 1997
-----------------------------------------
MARKETS SID/BIDS
------- --------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇
ATTACHMENT E
LIST OF CELL SITES IN THE MARYLAND 2 RSA
(TO BE LEASED FACILITIES)
----------------------------------------
1) Wye ▇▇▇▇▇ 21) ▇▇▇▇▇▇▇ Cliffs
2) Ocean Pines 22) Prince ▇▇▇▇▇▇▇▇▇
3) Salisbury 23) Easton
4) Trappe
5) Snow Hill
6) Princess ▇▇▇▇
7) Wicomico Park
8) Leonardtown
9) ▇▇▇▇▇▇▇▇▇▇▇
▇▇) ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇)
11) ▇▇▇▇▇▇▇▇
12) Lexington Park
13) Pocomoke City
14) Kent Island
15) Ocean City Inlet
16) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
18) Federalsburg
19) ▇▇▇▇▇▇
20) Nanticoke