RESALE AGREEMENT BY AND AMONG WEST VIRGINIA PCS ALLIANCE, L.C., VIRGINIA PCS ALLIANCE, L.C., NTELOS INC., AND SPRINT SPECTRUM L.P. DATED AS OF JULY 31, 2007
Table of Contents
EXECUTION COPY
BY AND AMONG
WEST VIRGINIA PCS ALLIANCE, L.C.,
VIRGINIA PCS ALLIANCE, L.C.,
NTELOS INC.,
AND
SPRINT SPECTRUM L.P.
DATED AS OF JULY 31, 2007
Table of Contents
i
Table of Contents
| 9. |
Audit | 21 | ||||
| 9.1 | General | 21 | ||||
| 9.2 | Procedure | 21 | ||||
| 10. |
Warranties | 22 | ||||
| 11. |
Trade Name, Trade Marks and Service Marks | 22 | ||||
| 11.1 | The Alliances’ Rights | 22 | ||||
| 11.2 | Sprint’s Rights | 22 | ||||
| 11.3 | Remedies for Violations | 23 | ||||
| 12. |
Insurance | 23 | ||||
| 12.1 | Sprint Insurance | 23 | ||||
| 12.2 | The Alliances Insurance | 24 | ||||
| 13. |
Indemnification; Limitation of Liability | 24 | ||||
| 13.1 | Indemnification | 24 | ||||
| 13.2 | Indemnification Procedures | 24 | ||||
| 13.3 | Limitation of Liability | 25 | ||||
| 14. |
Breach, Remedies and Early Termination of the Agreement | 25 | ||||
| 14.1 | Breach | 25 | ||||
| 14.2 | Phase-Out Period | 26 | ||||
| 15. |
Confidentiality | 26 | ||||
| 15.1 | Restriction | 26 | ||||
| 15.2 | Return | 27 | ||||
| 15.3 | Limitation | 27 | ||||
| 15.4 | Relief | 28 | ||||
| 16. |
Assignment | 28 | ||||
| 16.1 | By Sprint | 28 | ||||
| 16.2 | By the Alliances or NTELOS | 28 | ||||
| 16.3 | NTELOS Process | 28 | ||||
| 16.4 | Proprietary Information | 30 | ||||
| 17. |
General Provisions | 30 | ||||
| 17.1 | Notices and Inquiries | 30 | ||||
| 17.2 | Construction | 31 | ||||
| 17.3 | Independent Contractors | 31 | ||||
| 17.4 | Survival | 32 | ||||
| 17.5 | Headings | 32 | ||||
| 17.6 | Severability | 32 | ||||
| 17.7 | Governing Law | 32 | ||||
| 17.8 | Counterpart Execution | 32 | ||||
| 17.9 | Entire Agreement; Amendments | 32 | ||||
ii
Table of Contents
| 17.10 |
Parties in Interest; Limitation on Rights of Others | 33 | ||
| 17.11 |
Waivers; Remedies | 33 | ||
| 17.12 |
Force Majeure | 33 | ||
| 17.13 |
Disclosure | 33 | ||
| 17.14 |
Dispute Resolution | 33 | ||
| 17.15 |
Relationship of this Agreement and the Previous Agreement | 34 | ||
| 17.16 |
Release of Claims Arising Under Previous Agreement | 34 | ||
| 17.17 |
Duty of Good Faith and Fair Dealing | 34 |
iii
Table of Contents
| Schedule 1 | Markets | |
| Schedule 2 | PCS Services Pricing | |
| Schedule 3 | Billing Methodology | |
| Schedule 4 | Network Performance Standards and Requirements | |
| Exhibit 1 to Schedule 4 | Network Service Level Agreement | |
| Schedule 5 | Alliances and Sprint Representatives | |
| Schedule 6 | Sprint Core Features and Services | |
| Schedule 7 | EVDO Deployment Schedule |
iv
Table of Contents
This Resale Agreement (this “Agreement”) is dated as of July 31, 2007 for PCS Services beginning July 1, 2007 (the “Effective Date”) by and among West Virginia PCS Alliance, L.C., a Virginia limited liability company (the “WV Alliance”), Virginia PCS Alliance, L.C., a Virginia limited liability company (the “VA Alliance”) (collectively, the “Alliances”); NTELOS Inc., a Virginia corporation and the indirect parent of each of the Alliances (“NTELOS”); and Sprint Spectrum L.P., a Delaware limited partnership (“Sprint Spectrum”), and Sprint Spectrum on behalf of and as an agent for SprintCom, Inc., a Kansas corporation (“SprintCom”) (Sprint Spectrum and SprintCom collectively, “Sprint”).
RECITALS
A. The Alliances own broadband personal communications services (“PCS”) licenses and own and operate a PCS network (the “Alliances Network”) and provide PCS Services (as defined below) in several geographic markets, including the Markets (as defined below).
B. Subject to the terms and conditions contained in this Agreement, Sprint desires to purchase PCS Services from the Alliances and market and sell these services to Sprint Customers (as defined below), and the Alliances desire to sell PCS Services to Sprint.
C. Subject to the terms and conditions contained in this Agreement, the parties also desire to provide for (i) the pricing and billing methodology of the PCS Services being provided by Sprint to NTELOS and its Affiliates (as defined below), including the Alliances, pursuant to the Intercarrier Roamer Service Agreement dated as of November 1, 1997, as amended, so that such terms are reciprocal with the pricing terms and billing methodology of the PCS Services being provided by the Alliances to Sprint pursuant to this Agreement and (ii) the pricing and billing methodology of the long-distance telephone services (including, but not limited to international, inter-state, intra-state and 800 calls) provided by Sprint to NTELOS and its Affiliates, including the Alliances, at rates that reflect the “most favored nations” rates of the Sprint Network Managers (as defined below) as provided in Schedule 2.
D. On August 13, 2004, the Alliances, NTELOS and Sprint entered into the Resale Agreement (the “Previous Agreement”).
E. Sprint requests that the Alliances upgrade the Alliances Network to EVDO (as defined below).
F. The Alliances, NTELOS and Sprint intend to have this Agreement supersede and replace the Previous Agreement in its entirety.
NOW, THEREFORE, and in consideration of the above premises and the mutual promises set forth in this Agreement, the Alliances, NTELOS, and Sprint agree as follows:
“95% Completion of EVDO Deployment” has the meaning assigned to the term in Section 7.6.2.
1
Table of Contents
“98% Completion of EVDO Deployment” has the meaning assigned to the term in Section 7.6.2.
“Accounting Firm” has the meaning assigned to the term in Schedule 2.
“Additional Sites” has the meaning assigned to the term in Section 7.6.
“Affiliate” means a person or entity that, directly or indirectly, controls, is controlled by or is under common control with another person or entity.
“Agreement” means this agreement and all of its Schedules and Exhibits.
“Alliances” has the meaning assigned to the term in the Preamble.
“Alliances’ Customer” means any person, other than Sprint, purchasing from the Alliances (i) PCS Services or (ii) any other services offered for sale by the Alliances.
“Alliances Marks” has the meaning assigned to the term in Section 11.1.
“Alliances Network” has the meaning assigned to the term in the Recitals.
“Applicable Licenses” has the meaning assigned to the term in Section 8.1.
“Billing Error” means an error in the billing rates, billing methodology or calculation of minutes of use or data usage within an invoice.
“BTA” means basic trading area (as defined by the FCC).
“Effective Date” has the meaning assigned to the term in the Preamble.
“Code Division Multiple Access” or “CDMA” means a digital spread spectrum technology that, among other things, enables multi-user utilization of the same wireless spectrum channel at the same time through the use of assigned codes to subscribers participating in given communications. For the sake of clarity, it is understood that WiMax and Nextel iDEN based services are non-CDMA technology services.
“Cost Dispute” has the meaning assigned to the term in Schedule 2.
“Current Sites” has the meaning assigned to the term in Section 7.6.2.
“Data Customers” has the meaning assigned to the term in Schedule 2.
“Data Pricing Dispute” has the meaning assigned to the term in Schedule 2.
2
Table of Contents
“Data Customer Reset Rate” has the meaning assigned to the term in Schedule 2.
“Electronic Billing” has the meaning assigned to the term in Section 5.4.
“ESN” means the electronic serial number for each Handset.
“EVDO” means Evolution-Data Optimized Revision A, a third generation CDMA telecommunications standard for the transmission of data using radio signals.
“EVDO Deadline” has the meaning assigned to the term in Section 7.6.2.
“EVDO Deployment” means the installation of EVDO equipment and placement in service of one EVDO carrier per site.
“EVDO Request” has the meaning assigned to the term in Section 7.6.5.
“EVDO Request Site” has the meaning assigned to the term in Section 7.6.5.
“Event of Default” has the meaning assigned to the term in Section 14.1.
“Facilities” means the telecommunications switching equipment, cell site transceiver equipment, towers, connecting circuits, software and other equipment installed, maintained, expanded, modified or replaced by the Alliances to render PCS Services within the Markets.
“FCC” means the Federal Communications Commission or any successor agency.
“Forecast” has the meaning assigned to the term in Section 5.5.
“Fraud” means the use of false information or a false identity to secure PCS Services from the Alliances Network.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the FCC.
“Handsets” means the mobile handsets to be used by Sprint Customers and any other terminal equipment designed to be used by Sprint Customers, which handsets and equipment shall be compatible with the Alliances Network.
“HLR” means Home Location Register.
“Home Data Customer” has the meaning assigned to the term in Schedule 2.
“Home Data Customer Data Rate” means data rates for Home Data Customers as set forth in Schedule 2.
“Home Voice Customer” has the meaning assigned to the term in Schedule 2.
3
Table of Contents
“Home Voice Customer Reset Percentage” has the meaning assigned to the term in Schedule 2.
“Home Voice Customer Voice Rate” means voice rates for Home Voice Customers as set forth in Schedule 2.
“Hybrid Customer” means a wireless communications services customer with a “hybrid” Handset that is capable of accessing both PCS Services and non-PCS Services.
“Indemnification Claim” has the meaning assigned to the term in Section 13.2.1
“Indemnitor” has the meaning assigned to the term in Section 13.1.
“Indemnitee” has the meaning assigned to the term in Section 13.1.
“Independent Auditors” has the meaning assigned to the term in Section 9.2.
“IRSA” has the meaning assigned to the term in Section 5.6.
“Licenses” means the PCS licenses issued by the FCC to the Alliances, which authorize the provision of PCS Services in the Markets.
“Markets” means the BTA set forth in Schedule 1 (Markets) in which PCS Services are to be made available to Sprint pursuant to this Agreement and the Licenses. A “Market” is any one of such BTA.
“MDN” means a mobile directory number.
“MIN” means a mobile identification number.
“Monthly Interim Amount” has the meaning assigned to the term in Section 6.2.
“Monthly Minimum” has the meaning assigned to the term in Section 6.1.
“Monthly Usage” has the meaning assigned to the term in Section 6.1.
“MOU” means minute of use.
“MSID” means mobile station identifier.
“National ▇▇▇▇▇” has the meaning assigned to the term in Schedule 2.
“National ASRVRY” has the meaning assigned to the term in Schedule 2.
“National ASRVRY-1” has the meaning assigned to the term in Schedule 2.
“National ASRVRY-2” has the meaning assigned to the term in Schedule 2.
“National Sprint Competitor” means Verizon, Verizon Wireless, AT&T, or T-Mobile, or an Affiliate of Verizon, Verizon Wireless, AT&T, or T-Mobile.
“Network Specification” has the meaning assigned to the term in Section 7.2.
4
Table of Contents
“Newly Acquired Sprint Affiliate” has the meaning assigned to the term in Section 4.2.5.
“Nextel” means those entities that (i) are Sprint Affiliates by virtue of being under the common ownership umbrella of the Sprint Nextel Corporation which also includes Sprint, and (ii) provide wireless services using non-CDMA technology commonly referred to as “iDEN.”
“NTELOS” has the meaning assigned to the term in the Preamble.
“Offering Period” has the meaning assigned to the term in Section 16.3.2.
“PCS Business” has the meaning assigned to the term in Section 4.2.1.
“PCS Services” means all wireless communications services using CDMA technology.
“Phase-Out Period” has the meaning assigned the term in Section 14.2.
“Previous Agreement” has the meaning assigned to the term in the Recitals.
“Proprietary Information” has the meaning assigned the term in Section 15.3.
“Q-Chat” means a Sprint proprietary Push-To-Talk (“PTT”) solution.
“Re-Deployed Sites” has the meaning assigned the term in Section 7.6.3.
“Reorganized Sprint Affiliate” has the meaning assigned to the term in Section 4.2.5.
“Reset Rate Dispute” has the meaning assigned to the term in Schedule 2.
“Sprint” has the meaning assigned to the term in the Preamble.
“SprintCom” has the meaning assigned to the term in the Preamble.
“Sprint Customer” means each of the following: (i) Sprint, all Affiliates of Sprint, all Sprint Network Managers, and all resellers of Sprint (including MVNOs), to the extent any such entity provides PCS Services; and (ii) all end-user customers (including Hybrid Customers) that purchase PCS Services from any of the foregoing entities.
“Sprint Marks” has the meaning assigned to the term in Section 11.2.
“Sprint Network Manager” means an entity that provides mobile wireless telecommunications products and services under the “Sprint” or “Sprint Spectrum” service marks or any other service marks subsequently used by Sprint pursuant to an agreement with Sprint under which such entity constructs wireless network coverage and performs operational functions in defined geographic areas.
“Sprint Offer” has the meaning assigned to the term in Section 16.3.2.
5
Table of Contents
“Sprint Specific Customer” means Sprint Customers that are capable of using PCS Services, including Hybrid Customers of Sprint’s Affiliates, but excluding all other customers of (i) Sprint’s Affiliates, (ii) Sprint Network Managers, and (iii) resellers of Sprint (including MVNOs).
“Sprint Spectrum” has the meaning assigned to the term in the Preamble.
“Transaction” has the meaning assigned to the term in Section 16.3.1.
“Travel Data Customer” has the meaning assigned to the term in Schedule 2.
“Travel Data Customer Data Rate” means data rates for Travel Data Customers as set forth in Schedule 2.
“Travel Voice Customer” has the meaning assigned to the term in Schedule 2.
“Travel Voice Customer Voice Rate” means voice rates for Travel Voice Customers as set forth in Schedule 2.
“VA Alliance” has the meaning assigned to the term in the Preamble.
“Wireless Successor” has the meaning assigned to the term in Section 16.4.
“WLNP” means Wireless Local Number Portability.
“WV Alliance” has the meaning assigned to the term in the Preamble.
Subject to the terms and conditions of this Agreement, the Alliances will provide and sell PCS Services to Sprint in the Markets, and Sprint will purchase PCS Services from the Alliances in the Markets and pay the Alliances for PCS Services as more specifically described in Schedule 2. The Alliances authorize Sprint to market and sell the PCS Services to Sprint Customers subject to the terms and conditions of this Agreement. No provision of this Agreement will be construed as vesting in Sprint any control whatsoever in any facilities and operations of the Alliances, including the Facilities, or the operations of any Affiliate of the Alliances.
Subject to the early termination provisions set forth in Section 14 and the renewal provisions of Section 3.2, the initial term of this Agreement will be for the period commencing on the Effective Date and extending until July 31, 2015, unless renewed, or otherwise extended as a result of the Phase-Out Period described in Section 3.3 herein.
6
Table of Contents
This Agreement will automatically renew beyond the initial term set forth in Section 3.1 for separate renewal periods of three (3) years each, unless (a) Sprint gives written notice to the Alliances of non-renewal on or before the date which is one hundred eighty (180) days prior to the end of the initial term or the applicable renewal term, as the case may be; or (b) the Alliances give written notice to Sprint of non-renewal on or before the date which is one hundred eighty (180) days prior to the end of the initial term or the applicable renewal term, as the case may be.
Upon notice of termination of this Agreement pursuant to this Section 3, the Phase-Out period set forth in Section 14.2 will apply. During the Phase-Out Period, the Alliances agree to offer to sell PCS Services to Sprint in accordance with Section 14.2.
4. Representations, Warranties and Covenants
4.1 Representations and Warranties of the Alliances and NTELOS
Each of WV Alliance, VA Alliance, and NTELOS makes to Sprint the following representations and warranties as to itself as of the Effective Date:
4.1.1 Organization; Standing and Power
Each of WV Alliance and VA Alliance is a limited liability company duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia and has the requisite limited liability company power and authority to carry on its business as now being conducted and NTELOS is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia and has the corporate power and authority to carry on its business as now being conducted, respectively. Each of WV Alliance, VA Alliance, and NTELOS is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure to be so qualified to do business or in good standing (individually, or in the aggregate) would not have a material adverse effect on WV Alliance and its subsidiaries, taken as a whole, VA Alliance and its subsidiaries, taken as a whole, or on NTELOS and its subsidiaries, taken as a whole.
4.1.2 Authority
The execution, delivery and performance of this Agreement and of all of the other documents and instruments required hereby by each of WV Alliance, VA Alliance, and NTELOS are within the limited liability company power of WV Alliance and VA Alliance and the corporate power of NTELOS, respectively. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and no other action on the part of each of WV Alliance, VA Alliance, and NTELOS is necessary to authorize this Agreement or to consummate the transactions contemplated herein. This
7
Table of Contents
Agreement and all other documents and instruments required to be executed and delivered by each of WV Alliance, VA Alliance, and NTELOS hereby have been or will be duly and validly executed and delivered by each of WV Alliance, VA Alliance, and NTELOS, and constitute or will constitute valid and binding agreements of each of WV Alliance, VA Alliance, and NTELOS, enforceable against each of WV Alliance, VA Alliance, and NTELOS in accordance with their terms, except as enforceability may be restricted, limited or delayed by applicable bankruptcy or other laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity.
4.1.3 No Violations
Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby by each of WV Alliance, VA Alliance, and NTELOS will (a) conflict with or result in any breach of any provision of the articles of organization or operating agreement of each of WV Alliance and VA Alliance or the articles of incorporation or bylaws of NTELOS, (b) subject to receipt of regulatory and other third-party consents (which each of WV Alliance, VA Alliance, and NTELOS has no reason to believe will not be readily available), result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, contract or other instrument or obligation binding upon each of WV Alliance, VA Alliance, and NTELOS, or (c) violate any order, writ, injunction, decree or law in effect as of the date of this Agreement and applicable to each of WV Alliance, VA Alliance, and NTELOS, or any of its properties or assets.
4.1.4 Compliance with Agreement
NTELOS represents and warrants that each of WV Alliance and VA Alliance will comply with all terms and conditions set forth in this Agreement.
4.2 Representations, Warranties and Covenants of Sprint
Each of Sprint Spectrum and SprintCom makes to the Alliances and NTELOS the following representations and warranties as to itself as of the Effective Date:
4.2.1 Organization; Standing and Power
Sprint Spectrum is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and has the requisite limited partnership power and authority to carry on its business as now being conducted and SprintCom is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas and has the requisite corporate power and authority to carry on its business as now being conducted. Each of Sprint Spectrum and SprintCom is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure to be so qualified to do business or in good standing (individually, or in the aggregate) would not have a material adverse effect on Sprint Spectrum and its subsidiaries, taken as a whole, or on SprintCom and its subsidiaries, taken as a whole.
8
Table of Contents
As of the Effective Date and throughout the U.S. (including the Markets), (i) Sprint Spectrum and SprintCom are the only Affiliates of the Sprint Nextel Corporation that maintains or operates a CDMA network, and (ii) Sprint Spectrum is the only Affiliate of the Sprint Nextel Corporation that contracts directly with Sprint Customers in connection with the provision of PCS Services (except that Sprint Spectrum may contract indirectly with Sprint Customers who are end-user customers through Sprint Network Managers or resellers of Sprint) (the business involved in clauses (i) and (ii), the “PCS Business”).
4.2.2 Authority
The execution, delivery and performance of this Agreement and of all of the other documents and instruments required hereby by each of Sprint Spectrum and SprintCom are within the limited partnership power of Sprint Spectrum and the corporate power of SprintCom, respectively. Sprint Spectrum is an agent of SprintCom and has the authority to enter into this Agreement as an agent of and on behalf of SprintCom. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and no other corporate action on the part of each of Sprint Spectrum and SprintCom is necessary to authorize this Agreement or to consummate the transactions contemplated herein. This Agreement and all other documents and instruments required to be executed and delivered by each of Sprint Spectrum and SprintCom hereby have been or will be duly and validly executed and delivered by each of Sprint Spectrum and SprintCom, and constitute or will constitute valid and binding agreements of each of Sprint Spectrum and SprintCom, enforceable against each of Sprint Spectrum and SprintCom in accordance with their terms, except as enforceability may be restricted, limited or delayed by applicable bankruptcy or other laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity.
4.2.3 No Violations
Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby by each of Sprint Spectrum and SprintCom will (a) conflict with or result in any breach of any provision of the partnership agreement of Sprint Spectrum or the articles of incorporation or bylaws of SprintCom, (b) subject to receipt of regulatory and other third-party consents (which each of Sprint Spectrum and SprintCom has no reason to believe will not be readily available), result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, contract or other instrument or obligation binding upon each of Sprint Spectrum and SprintCom, or (c) violate any order, writ, injunction, decree or law in effect as of the date of this Agreement and applicable to each of Sprint Spectrum and SprintCom, or any of its properties or assets.
9
Table of Contents
4.2.4 Compliance with Agreement
Sprint Spectrum represents and warrants that each of Sprint Spectrum and SprintCom will comply with all terms and conditions set forth in this Agreement.
4.2.5 Covenants of Sprint
In the event that any other Affiliate of the Sprint Nextel Corporation (other than Sprint) becomes involved in the PCS Business, whether through reorganization of Sprint, the Sprint Nextel Corporation, or an Affiliate of Sprint or the Sprint Nextel Corporation (the “Reorganized Sprint Affiliate”) or acquisition of another entity by Sprint, the Sprint Nextel Corporation, or an Affiliate of Sprint or the Sprint Nextel Corporation (the “Newly Acquired Sprint Affiliate”), Sprint shall ensure and shall cause its Affiliates to ensure that: (i) such Reorganized Sprint Affiliate (subject to the provisions in clause (ii)) and Newly Acquired Sprint Affiliate (subject to the provisions in clause (iii)) shall be made a party to this Agreement, (ii) all PCS Services customers of such Reorganized Sprint Affiliate shall be deemed to be Sprint Customers covered by the terms and conditions of this Agreement, and (iii) all subsequent PCS Services customer growth of such Newly Acquired Sprint Affiliate after the closing date of the acquisition shall be deemed to be Sprint Customers covered by the terms and conditions of this Agreement. With respect to the PCS Services network of any Newly Acquired Sprint Affiliate existing as of the closing date of the acquisition and located within the Markets, such network may be maintained and used by such Newly Acquired Sprint Affiliate solely to provide PCS Services to its customers existing as of the closing date of the acquisition.
5. Scope of PCS Services; Handset Handling; MIN Administration; Billing; Forecasts
During the term of this Agreement, the Alliances agree to provide to Sprint the PCS Services in the Markets.
Sprint will be responsible for making its own arrangements (a) to purchase Handsets and accessories for resale, from manufacturers selected by Sprint and (b) for the delivery of those Handsets and accessories directly to Sprint.
Unless the parties otherwise agree, Sprint will be responsible for the administration of its own MIN ranges and unique customer MDN’s and ESN’s for each Market, and the Alliances will route and ▇▇▇▇ Sprint for PCS Services accordingly. The parties agree to work together in good faith to coordinate MIN range administration, including sufficient advance notice necessary to implement the terms of this Section 5.3.
10
Table of Contents
The Alliances will provide Sprint with electronic call detail records on a near real time basis (“Electronic Billing”). Sprint shall provide for network facilities to transport call detail records to support Electronic Billing and is responsible for providing systems and capacity to receive all available call detail records. Electronic call detail records will be provided in native format. For purposes of this Agreement, the term “near real time basis” means the period of time in which the Alliances can read their own call detail records for the Alliances’ Customers. With respect to payment for defective call detail records, Sprint may, in addition to any other rights and remedies available to Sprint, dispute such payments under the procedures set forth in Section 6.3. Additionally, Sprint will have no responsibility for paying invoices for PCS Services to the extent that the Alliances do not forward the call detail records for Sprint Customers from Alliances’ switches to the Alliances’ platform within ten (10) days after the occurrence of the call.
5.5 Subscriber Information and Forecasts
For the Alliances Network planning purposes, Sprint will provide the Alliances, by the fifth (5th) day of each calendar month, current subscriber information for each of the Markets. Further, by the fifth (5th) day of each calendar quarter, Sprint shall provide the Alliances with a good faith, non-binding rolling forecast (the “Forecast”) of the expected number of subscribers, voice minutes and data MB of the Alliances Network usage by Market for the quarterly periods during the four (4) calendar quarters immediately following the calendar quarter in which the Forecast is provided to the Alliances by Sprint.
5.6 Negotiation of Roaming Agreement Amendment
Sprint Spectrum and the Alliances will negotiate in good faith to agree upon the terms of an amendment to the Intercarrier Roamer Service Agreement dated November 1, 1997, as amended (“IRSA”), to ensure feature functionality for each others customers in roaming scenarios for EVDO and Location-Based Services (LBS), and to establish a commitment by the parties to assess the feasibility of providing additional feature functionality in roaming arrangements in the future. Such amended IRSA will contain provisions to the effect that, absent an IRSA termination for cause (including any termination of this Agreement), the IRSA shall remain in effect for at least the same term as this Agreement (including any renewals of this Agreement).
6. Prices and Terms of Payment
6.1.1. Beginning with an initial payment for the calendar month which includes the Effective Date and continuing each calendar month thereafter, through and including the calendar month in which the Alliances achieve 98% Completion of EVDO Deployment, Sprint is liable and will pay the Alliances on a monthly basis the greater amount of either (i) eight million dollars ($8,000,000) per calendar month (“Monthly Minimum”), or (ii) any and all undisputed monthly usage charges associated with the use of the PCS Services by Sprint Customers for such month, as set forth in Schedule 2 (“Monthly Usage”).
11
Table of Contents
6.1.2. Beginning with the calendar month after the Alliances achieve 98% Completion of EVDO Deployment, Sprint is liable and will pay the Alliances on a monthly basis the greater amount of either (i) nine million dollars ($9,000,000) as the “Monthly Minimum”, or (ii) any and all undisputed Monthly Usage charges associated with the use of the PCS Services by Sprint Customers for such month, as set forth in Schedule 2.
6.1.3. Disputed charges are governed by the procedures set forth in Section 6.3. All prices and charges stated in this Agreement are in U.S. dollars. All Monthly Usage charges shall be billed according to the billing methodology set forth on Schedule 3.
For usage charges associated with the use of the PCS Services by Sprint Customers as set forth in Section 6.1 during the period from the first day through the last day of each calendar month, the Alliances will provide Sprint invoices on a semi-monthly basis on or about the sixteenth day of such calendar month and the first day of the next calendar month. On or about the sixteenth day of each calendar month, the Alliances will provide Sprint an invoice for the greater amount of either (i) 50% of the applicable Monthly Minimum, or (ii) usage charges associated with the use of the PCS Services by Sprint Customers, as set forth in Schedule 2, during the period from the first day through the fifteenth day of such calendar month (the “Monthly Interim Amount”). On or about the first day of the next calendar month, the Alliances will provide Sprint an invoice for the greater amount of either (i) the applicable Monthly Minimum minus the Monthly Interim Amount, or (ii) the Monthly Usage minus the Monthly Interim Amount. Sprint will be liable to the Alliances for those undisputed charges and will pay them in accordance with the provisions of this Section 6. Payment for each invoice is due within twenty five (25) days of receipt of invoice by Sprint. Interest, at a daily interest rate equal to .0491%, compounded monthly, shall begin to accrue on payment amounts due which are not made by the due date.
6.3.1 General
Sprint may elect to withhold payment of any properly disputed portion of any invoice until the dispute is resolved as set forth in this Section 6.3. Sprint must pay the undisputed amount of any invoice in a timely manner as provided in Section 6.2. Upon resolution of any dispute, payment of any disputed and withheld amount by Sprint that is determined to be due and owing (including interest, at a daily interest rate equal to .0491%, compounded monthly) is due and payable within ten (10) days following resolution of the dispute as provided in this Section 6.3.
12
Table of Contents
6.3.2 Fraud
Sprint shall use its own capabilities for the purposes of Fraud analysis. Sprint shall not be responsible for the payment of charges based on Fraud, when such charges originate one (1) business day after the Alliances have received written notice from Sprint that Sprint has discovered such Fraud but only if the Alliances are in control of the means to prevent such Fraud from occurring. In the event the Alliances discover Fraud, they shall promptly notify Sprint. In the event the Alliances discover Fraud, nothing herein shall prevent the Alliances from taking prompt action (without prior notice to Sprint) that is reasonably necessary to prevent such Fraud; provided, that, nothing contained herein shall impose any obligations on the Alliances to take any action with respect to Fraud. Sprint shall indemnify and hold the Alliances harmless from any and all costs, expenses, damages, claims, losses or actions arising from Fraud to the extent the party claiming the Fraud is (or had been at the time of the alleged Fraud) a Sprint Customer.
6.3.3 Billing Errors Discovered Before Payment
If Sprint intends not to pay all or part of an invoice as a result of Sprint’s reasonable belief that a Billing Error exists, Sprint will, prior to the due date of such invoice, provide to the Alliances written notice of any Billing Error, together with a detailed explanation of the nature and amount of the Billing Error and all applicable call detail records upon which such Billing Error is based. The Alliances will respond to Sprint in writing with regard to the Billing Error within ten (10) business days after receipt of Sprint’s notice of a Billing Error and credit Sprint’s account within the later of (i) ten (10) business days after receipt of Sprint’s notice of a Billing Error or (ii) the next invoice date if the Alliances agree that such resolution is appropriate. If the parties mutually agree that such charges are correct, Sprint shall pay any disputed and withheld amount, including interest, as provided for in Section 6.3.1. If the parties are unable to resolve any such disputes within thirty (30) days of the date of the Alliances’ response, either party may initiate the dispute resolution process set forth in Section 17.14.
6.3.4 Billing Errors Discovered After Payment
Following payment of an invoice, if a party discovers that a Billing Error has occurred, the party will provide notice of such Billing Error, together with the applicable call detail records and the amount of the Billing Error, to the other party as soon as practical upon detection. After receiving notice of a Billing Error, the other party will respond in writing to the party detecting the Billing Error within ten (10) business days after receipt of the Billing Error notice. Upon resolution, payment of amounts that are determined to be due and owing as a result of such Billing Error (exclusive of any interest charges reflecting the time value of the Billing Error) will be due and payable within twenty-five (25) days following resolution. If payment is not made within such twenty-five (25) day period, the amount due will be adjusted to include interest from the original invoice date at a daily interest rate equal to .0491%, compounded monthly. No corrections or adjustments for Billing Errors discovered after payment will be made unless the discovering party sends written notice of a Billing Error to, and such notice is received by, the other party within three hundred sixty five (365) days of the invoice date of any invoice subject to a purported Billing Error. If the parties are unable to resolve Billing Errors within sixty (60) days of the date of response by the party receiving the Billing Error notice, either party may initiate the dispute resolution process set forth in Section 17.14.
13
Table of Contents
6.4 Taxes and Other Levies by Governmental Authorities
6.4.1 Taxes
The rates and charges set forth in this Agreement do not include sales or similar taxes imposed on the PCS Services provided by the Alliances to Sprint. Sprint shall provide the Alliances with copies of all applicable tax exemption certificates. The Alliances shall not be responsible for the remittance of any taxes, fees and other charges of Governmental Authorities relating to the use of the Alliances Network for PCS Services by Sprint Customers for PCS Services.
6.4.2 Other Levies by Governmental Authorities
The Alliances will be solely responsible for the timely and accurate remittance of all taxes, fees and other charges of Governmental Authorities relating to the ownership and operation of the Alliances Network.
Sprint shall (i) reimburse the Alliances for a pro rata allocated portion of reasonable and documented E-911 costs incurred by the Alliances after the Effective Date related to providing PCS Services to Sprint or Sprint Customers and (ii) subject to commercially reasonable terms, enter into a separate agreement with the vendor supplying the Alliances with E-911 database services, to purchase the required E-911 database services on behalf of Sprint Customers.
7. Rights and Obligations of the Parties
7.1 Sprint’s Responsibility and Liability Related to PCS Services to Sprint Customers
Sprint will be responsible and liable for (i) Sprint Customer credit verification, (ii) billing, (iii) collection, (iv) customer service, (v) all similar support necessary to provide PCS Services to Sprint Customers and (vi) all risks and expenses related to such services. Sprint will not make any representation, warranty or covenant to any Sprint Customer that would misrepresent or conflict with the terms and conditions of this Agreement.
7.2.1 General Requirements
The Alliances warrant that PCS Services will be of a quality and clarity no worse than PCS Services provided by the Alliances to Alliances’ Customers.
14
Table of Contents
This Section 7.2.1 and the accompanying Schedule 4 attached hereto (collectively, “Network Specifications”) set forth the general, operation, and performance specifications of the Alliances Network as of the Effective Date. With respect to the performance specifications for EVDO, the parties will mutually agree to such performance specifications in accordance with the process set forth in Schedule 4.
7.2.2 Network Upgrades Requested by Sprint
Except for EVDO Deployment as set forth in Section 7.6, the Alliances shall not be required to make any other future investment in high speed data transfer technology requested by Sprint, or any other significant network upgrade requirement requested by Sprint, to support Sprint Customers using the Alliances Network in the Markets unless the parties mutually agree in advance of such investment in a separate written agreement. Notwithstanding the foregoing, each of the Alliances agrees that it will augment or expand its Facilities, including implementing commercially reasonable network upgrades, at its own expense in order (i) to provide the products and services supported by the Alliances as of the Effective Date and to comply with the performance specifications set forth in Schedule 4, and (ii) with respect to EVDO, to comply with Sections 7.2.1 and 7.7 and to comply with the performance specifications mutually agreed to by the parties in accordance with Section 7.2.1. Sprint acknowledges and agrees that the Alliances Network as of the Effective Date of this Agreement meets the requirements of Sprint’s current non-EVDO products and services identified on Schedule 6.
7.2.3 Network Upgrades Required By Governmental Authorities or Industry Standards
Sprint shall reimburse the Alliances for a proportional amount of the reasonable and documented capital or incremental operating expenses incurred by the Alliances to comply with all future network obligations mandated by Governmental Authorities or new industry standards, such as mobile equipment identifiers (MEIDs), based upon the proportion of the total capital and operating expense related to the Alliances Network usage by Sprint Customers, unless otherwise agreed by the parties.
7.2.4 Absence of Coverage
If, at any time during the term of this Agreement, Sprint desires to have geographic coverage within a Market served by the Alliances Network, where geographic coverage does not already exist, Sprint shall provide the Alliances with a written request to expand the coverage area of the Alliances Network within a Market. If, within sixty (60) days of receipt of such written notice, the Alliances do not provide Sprint with a written commitment to develop such coverage within a reasonable period of time, or if the Alliances do not develop such coverage within such reasonable period of time, Sprint shall have the right, at its own expense or at the expense of a third-party acting on Sprint’s behalf under a build-out agreement with Sprint (including for purposes of clarity a Strategic Roaming Alliance partner of Sprint), to construct its own cell sites or to take other action to provide such coverage, without breaching this Agreement or incurring liability to the Alliances. If, pursuant to this Section 7.2.4, Sprint constructs its own cell sites or takes such other action to provide coverage, (a) Sprint (or a party
15
Table of Contents
on Sprint’s behalf), at Sprint’s cost, will have the right to connect such sites or other construction to the Alliances Network and platforms, (b) the Alliances will coordinate with Sprint, at Sprint’s request, for the seamless operation and connectivity of the new cell sites with the Alliances Network, (c) the Alliances shall have the right to use such new cell sites to provide geographic coverage to Alliances’ Customers at a cost to the Alliances determined by the sum of (i) the product of, for voice services, 75% of the applicable Home Voice Customer Voice Rate times such Alliances’ Customers’ voice minutes of use for the month on Sprint owned cell sites within the Markets, plus (ii) the product of, for data services, 75% of the applicable Travel Data Customer Data Rate times such Alliances’ Customers’ MB of data use for the month on Sprint owned cell sites within the Markets, and (d) the Alliances will provide all applicable switching to Sprint at a cost to Sprint determined by the sum of (i) the product of, for voice services, 25% of the applicable Home Voice Customer Voice Rate times Sprint Customers’ voice minutes of use for the month on Sprint owned cell sites within the Markets, plus (ii) the product of, for data services, 25% of the applicable Travel Data Customer Data Rate times Travel Data Customers’ MB of data use for the month on Sprint owned cell sites within the Markets. The charges contemplated in (c) and (d) above will be reflected as additional settlement activity on invoices generated pursuant to Schedule 3.
7.2.5 Modifications
Subject to the Alliances’ compliance with the Network Specifications, the Alliances may, in their reasonable discretion, change or update the Facilities or the Alliances’ operations, equipment, software, procedures or services in a commercially reasonable manner; provided, that, such changes or updates shall not unreasonably interrupt, suspend, delay or adversely change the quality or functionality of the PCS Services. The Alliances must give Sprint at least three (3) days prior written notice of the implementation of such planned changes or updates; provided, that, the Alliances shall not be required to provide such notice in the event of a change or update made in an emergency situation. In administering such changes or updates, the Alliances shall not knowingly or negligently interrupt, suspend, delay or adversely change the quality or functionality of the PCS Services in any material adverse manner.
7.2.6 The Alliances’ Reports to Sprint
The Alliances will provide Sprint with real time “read-only” access to performance data for elements of the Alliances Network which are to be used by Sprint. Such performance data shall be sufficient in scope and detail to establish compliance with the Network Specifications. In addition, the Alliances will provide an updated Format C Report (containing a spreadsheet detailing specific cell site information, as mutually agreed by the Alliances and Sprint, for each cell site and repeater site within the Markets) by the fifteenth (15th) day of each month to Sprint by means of electronic mail.
16
Table of Contents
7.3 Exclusive Provider; Overbuilds
7.3.1 PCS Services
During the term of this Agreement, (i) the Alliances shall be the exclusive provider of PCS Services to Sprint Customers within the Markets (except for (a) roaming on third-party network systems that may occur in the ordinary course because of lack of geographic coverage from the Alliances Network in a portion of the Markets, or (b) as a result of Sprint’s (or a party on Sprint’s behalf) construction of a cell site in a situation where there is an absence of geographic coverage in a Market as provided for in Section 7.2.4), and (ii) Sprint shall not, and shall cause each of its Affiliates not to, either directly or indirectly, commence construction of, contract for, or launch any wireless communications network that provides PCS Services within the Markets, except as provided for coverage exceptions as described in Section 7.2.4. Such limitation on Sprint’s ability and its Affiliates’ ability to overbuild the Alliances Network shall expire eighteen (18) months prior to the initial expiration date (i.e., July 31, 2015), or renewals thereof, of this Agreement, and at that time, Sprint may so commence construction of such wireless communications network to provide PCS Services within the Markets.
7.3.2 Non-PCS Services
7.3.2.1 It is understood that Nextel operates and will continue to operate within the Markets to provide non-PCS Services. Nextel will maintain its non-PCS Services network and continue to provide non-PCS Services to its customers until such time that such network may no longer be utilized, which may or may not occur within the lifetime of this Agreement.
7.3.2.2 Each party reserves all rights to build and maintain a network, and provides services using such network, to the extent such services are non-PCS Services.
The Alliances shall make available for the PCS Services to be provided under this Agreement the FCC License Spectrum identified on Schedule 1 to this Agreement. To the extent the amount of the Sprint Customers’ use of PCS Services requires additional FCC license spectrum in any of the Markets, Sprint shall make such FCC license spectrum available to the Alliances at no charge from its own available FCC license spectrum holdings for as long as this Agreement and the Sprint PCS Build-Out Agreement dated August 12, 1999, as amended, are in effect.
As the “single point of contact” with respect to the monitoring and administration of this Agreement, each of the Alliances and Sprint agree to appoint one individual who shall have, as one of his or her primary functions, the responsibility for the administration of this Agreement. The initial appointees are set forth on Schedule 5.
17
Table of Contents
7.6.1 The Alliances agree to use commercially reasonable efforts to implement EVDO in the Alliances Network in the Markets in accordance with this Section 7.6.
7.6.2 Subject to Section 7.6.3 below, the Alliances agree that they will proceed with EVDO implementation such that:
(i) EVDO Deployment will be achieved at 95% or more of the total number of (a) the 595 sites currently existing in the Alliances Network in the Markets (“Current Sites”) and (b) any additional sites not currently commercially launched in the Alliances Network in the Markets as of the Effective Date but which are commercially launched after the Effective Date (“Additional Sites”) (clause (i), “95% Completion of EVDO Deployment”) by January 31, 2010 (an “EVDO Deadline”);
(ii) EVDO Deployment will be achieved at 98% or more of the total number of (a) the 595 Current Sites and (b) any Additional Sites (clause (ii), “98% Completion of EVDO Deployment”) by January 31, 2011 (also, an “EVDO Deadline”);
(iii) Each EVDO Deadline shall be extended to the extent a delay in EVDO Deployment is caused by (i) a force majeure event as set forth in Section 17.12, or (ii) acts or omissions by Sprint, an Affiliate of Sprint, Sprint Network Manager, or Sprint Customers; and
(iv) The Alliances will use commercially reasonable efforts to implement EVDO in accordance with the build-out time frames set forth in Schedule 7. The parties may update such build-out time frames upon mutual agreement. The parties will work together in good faith to jointly optimize EVDO Deployment, and maintain ongoing, periodic communications for the purpose of keeping Sprint reasonably informed regarding the continuing progress of the Alliances EVDO Deployment efforts.
7.6.3 In the event that the Alliances re-deploy 1X equipment from Current Sites to create new sites in geographic areas of the Market that previously lacked any coverage as of the Effective Date (“Re-Deployed Sites”), the Alliances shall have no obligation to deploy EVDO to such Re-Deployed Sites. Re-Deployed Sites shall be excluded from calculation (excluded from both the numerator and the denominator) of whether the percentage of EVDO Deployment has met the 95% Completion of EVDO Deployment or 98% Completion of EVDO Deployment set forth above in this Section 7.6 (including the calculation of the number of Current Sites and the number of Additional Sites). The Alliances will transmit a different network identification code (SID/NID combination) for a Re-Deployed Site than the Alliances transmits to identify an Alliance EVDO Deployment site.
7.6.4 In the event that the Alliances fail to achieve 95% Completion of EVDO Deployment or 98% Completion of EVDO Deployment by the applicable EVDO Deadline (as extended in accordance with Section 7.6.2(iii)), such failure shall be an Event of Default as contemplated by Section 14.1(ii) without the need for Sprint to provide the Alliances with any written notice of such Event of Default. Upon Alliances’ failure to achieve either 95% or 98% Completion of EVDO Deployment as of the applicable EVDO Deadline (as extended in
18
Table of Contents
accordance with Section 7.6.2(iii)), Sprint shall have the right to terminate this Agreement under Section 14.1(ii) by sending the Alliances written notice of such termination within ninety (90) days of the applicable EVDO Deadline, unless the parties mutually agree in writing to extend such ninety (90) day period. Thereafter, if Sprint has not sent such written termination notice within such ninety (90) day period, Sprint shall no longer have the right to terminate this Agreement based upon such failure.
7.6.5 After the EVDO Deadline set forth in Section 7.6.2(ii) above for the 98% Completion of EVDO Deployment of Current Sites and Additional Sites, if Sprint desires to have the Alliances implement EVDO at (i) any of the remaining 2% of Current Sites or Additional Sites or (ii) any of the Re-Deployed Sites, Sprint shall provide the Alliances with a written request (“EVDO Request”) to deploy EVDO to such Current Site, Additional Site, or Re-Deployed Site (“EVDO Request Site”). If, within sixty (60) days of receipt of such EVDO Request, the Alliances do not provide Sprint with a written commitment to deploy EVDO at the EVDO Request Site within six (6) months of such written commitment, Sprint shall have the right, at its own expense, to deploy EVDO at the EVDO Request Site. Once deployed by Sprint, the Alliances will use commercially reasonable efforts to provide for seamless operation and connectivity with the Alliances Network for the EVDO at the EVDO Request Site. The Alliances shall have the right to use the EVDO deployed by Sprint at the EVDO Request Site to provide services to the Alliances’ Customers at the Travel Data Rate.
7.7 Software Deployment Process
The Alliances agree to initially deploy the generally available software release as described in Schedule 4 or a more current generally available software release. Thereafter, the Alliances will deploy subsequent generally available software releases such that the generally available software release used in the Alliances Network, at any point in time during the term of this Agreement, is no more than two (2) generally available software releases behind the latest generally available software release available to the Alliances from its vendors. Notwithstanding the foregoing, upon a written request from Sprint, the Alliances agree to promptly deploy any generally available software release that Sprint has had deployed in Sprint’s network for six (6) months or more.
Sprint will ensure that the Alliances can purchase and deploy all additional software and feature sets beyond the generally available software release required to support Q-Chat functionality for Sprint Customers only. Sprint agrees to reimburse the Alliances for all costs associated with providing Q-Chat to Sprint Customers above the costs for the acquisition of licenses for the generally available software releases as set forth in this Section 7.7. Sprint will request in writing the software and feature sets required to support Q-Chat and ensure that they are available to the Alliances to deploy at the time of such written request. The Alliances agree to deploy such software and feature sets within six (6) months after receiving the written request.
19
Table of Contents
Each Alliance represents that it is the holder of each of the Licenses (each, an “Applicable License” and collectively, the “Applicable Licenses”). During the term of this Agreement, each Alliance agrees that it will comply in all material respects with all FCC rules and regulations regarding an applicable License and will use its reasonable best efforts to maintain such License and to refrain from any action or inaction which may result in the revocation or other loss of such License. The Alliances will provide Sprint with any and all notices from the FCC which could materially affect the Alliances’ ownership of the Licenses, the provision of PCS Services to Sprint or the Alliances’ performance of any other material covenant or obligation in this Agreement. Each Alliance represents and warrants as to itself that each of the Applicable Licenses are in full force and effect and are not subject to any petition to deny or petition for reconsideration and that no other party holds any interest of any nature with regard to such Licenses, other than security interests held by senior secured lenders to the Alliances or by the FCC or its agents. Sprint agrees to use commercially reasonable efforts not to take any action that would jeopardize the Alliances’, or another License holder’s, ability to hold the Licenses, without penalty.
The Alliances agree that they will use their reasonable best efforts to obtain renewals of the Licenses throughout the term of this Agreement and, specifically, will file all required applications for renewal and will diligently and promptly pursue such renewal applications unless the Alliances reasonably determine that the FCC has imposed such burdens upon the renewal of the Licenses that it is not commercially reasonable to renew such Licenses. In the event the Alliances determine that it is not commercially reasonable to renew such Licenses, the Alliances shall give Sprint written notice of such determination no later than one hundred fifty (150) days prior to the expiration of the term of the Licenses (or any renewal term); provided, however, that in the event the Alliances shall have determined to assign this Agreement, in accordance with the provisions of Section 16.2, with respect to a Market for which there is a License as to which a notice of non-renewal has been given, the Alliances shall have the right to withdraw such notice and pursue the transfer of such License to the proposed assignee. To exercise such right, the Alliances must give written notice to Sprint prior to the sixtieth (60th) day before the expiration of the License, and the Alliances must provide Sprint with satisfactory assurances that the transfer of such License is reasonably likely to be approved by the FCC with the result that Sprint would not experience an interruption of service in such Market. In the event the Alliances give a non-renewal notice and do not withdraw such notice as provided above, Sprint may, at its option, give written notice, no later than sixty (60) days prior to the expiration of the Licenses, to the Alliances that the Alliances must file an application for FCC approval to transfer the Licenses from the Alliances to Sprint or one of its Affiliates and that the Alliances must reasonably cooperate with Sprint to pursue the transfer and renewal of the Licenses. To the extent permitted by law, the parties will use their reasonable efforts to avoid the public disclosure of such filing. Sprint agrees to promptly reimburse the Alliances for the reasonable legal and other costs associated with the development, filing and prosecution of
20
Table of Contents
such application and the cooperation in pursuing the renewal. If the FCC approves such application for transfer, then, upon Sprint’s request, the Alliances will transfer the Licenses (for no consideration) to Sprint or its Affiliate prior to the License expiration, and Sprint shall be responsible for any renewal fees required by the FCC. Notwithstanding the foregoing, in the event that (a) the Alliances withdraw a notice of non-renewal (as provided in the second sentence of this Section) and (b) the Alliances receive a bona-fide offer to purchase such Licenses from a third-party, the Alliances will deliver such offer to Sprint, and Sprint will have the right to purchase such Licenses, for the price and on the terms and conditions set forth in the offer. Sprint may exercise such right by giving written notice to the Alliances within ten (10) business days of Sprint’s receipt of such offer.
Each party will maintain complete and accurate records for twelve (12) months following conclusion or expiration of all agreement payment obligations of all parties related to such records in a consistent form to substantiate the monetary payments and reporting and other obligations of one party to the other party under this Agreement. Each party may, upon reasonable prior written notice, conduct during the other party’s regular business hours, and in accordance with applicable law and reasonable security requirements, audits of those records. Each party may seek a general audit of these records no more than once every twelve (12) months. In addition, each party may seek limited audits of records relating to specific disputed payment and reporting obligations, not more than once every three (3) months. These audit rights will survive until the period ending twelve (12) months following conclusion or expiration of all post-agreement payment obligations of all parties under this Agreement. During the term of this Agreement, the Alliances hereby grant reasonable access to Sprint and its representatives to review and inspect the Alliances Network, including individual cell sites and the switch location(s); provided, that, Sprint provides reasonable advance notice to the Alliances and the Alliances have the right to have an employee or representative present at all times during such inspection.
Audits will be conducted in accordance with the following restrictions: (a) the audit may be conducted by employees of the auditing party and/or by third-party representatives, (b) the audited party may require the auditing party’s employee to conduct the audit on the premises of the audited party, (c) the audited party will have the right to have an employee or representative present at all times during the audit, (d) the auditing party will not have direct access to the audited party’s computer database without the consent of the audited party, and will be entitled to review only those specific records of the audited party directly related to the monetary obligations of the audited party under this Agreement, and (e) the auditing party will provide reasonable advance notice of the audit and the audit will be scheduled at a mutually acceptable time and the parties will avoid, to the extent reasonably practical, scheduling such audit in the months of January or February. Subject to the restrictions set forth above, the audited party will cooperate fully with the auditing party. All reasonable fees and costs incurred
21
Table of Contents
by either party in connection with those audits will be paid by the auditing party. However, the auditing party will not be responsible for any charges associated with the services of any employee of the audited party. The audited party will have the right to have the results of any audit reviewed by the audited party’s internal auditing staff or by the audited party’s independent accountants who then audit the financial statements of the audited party (“Independent Auditors”) and the cost of such an internal or Independent Auditors’ review will be borne by the audited party. The audited party must use its commercially reasonable efforts to promptly correct any material deficiencies related to performance uncovered by an audit.
Except as otherwise provided in this agreement, the Alliances make no warranties, express or implied, regarding the Alliances Network or the PCS Services or, if applicable, any equipment, including any warranties of merchantability or fitness for a particular purpose. The Alliances do not authorize anyone to make any warranty on their behalf, and Sprint should not rely on any such statement.
11. Trade Name, Trade Marks and Service Marks
Sprint recognizes the right, title and interest of the Alliances in and to all service marks, trademarks, trade names, trade dress, logos and other indicia of origin used in connection with the services and products sold by the Alliances (collectively, the “Alliances’ Marks”). Sprint will not engage in any activities or commit any acts, directly or indirectly, that contest, dispute, or otherwise impair, or that may contest, dispute or otherwise impair the right, title or interest of the Alliances therein. Sprint acknowledges and agrees that nothing in this Agreement grants to Sprint the right to use and Sprint agrees that it will not use any of the Alliances’ Marks or any service ▇▇▇▇, trademark, trade name, trade dress, logos and other indicia of origin that is confusingly similar to or a colorable imitation of any of the Alliances Marks and will not incorporate the Alliances’ Marks into service ▇▇▇▇, trademark, trade name, trade dress, logos and other indicia of origin used or developed by Sprint.
The Alliances and NTELOS recognize the right, title and interest of Sprint service marks, trademarks, trade names, trade dress, logos and other indicia of origin used in connection with the services and products sold by Sprint (collectively, the “Sprint Marks”). The Alliances and NTELOS will not engage in any activities or commit any acts, directly or indirectly, that contest, dispute, or otherwise impair, or that may contest, dispute or otherwise impair the right, title or interest of Sprint and its Affiliates therein. The Alliances and NTELOS acknowledge and agree that nothing in this Agreement grants to the Alliances or NTELOS the right to use and the Alliances and NTELOS agree that they will not use any Sprint ▇▇▇▇ or any service ▇▇▇▇, trademark, trade name, trade dress, logos, or other indicia of origin that is confusingly similar to or a colorable imitation of any of the Sprint Marks and will not incorporate the Sprint Marks into any service ▇▇▇▇, trademark, trade name, trade dress, logos, or other indicia of origin, used or developed by the Alliances or NTELOS. The Alliances do not acquire or claim any right, title or interest in or to the Sprint Marks through the provision of PCS Service or products or otherwise.
22
Table of Contents
Notwithstanding anything to the contrary in this Section 11.2, Sprint agrees that the Alliances and NTELOS may identify Sprint as the Preferred Nationwide Roaming Partner for the Alliances and NTELOS in their collateral and marketing materials, subject to Sprint’s prior review and written consent. The Alliances and NTELOS will submit to Sprint for prior review and written consent any collateral and marketing materials containing Sprint’s name. Sprint will promptly review such materials and not unreasonably withhold its written consent to their use.
If either party violates or threatens to violate Section 11, the other party may exercise any right or remedy under this Agreement and any other right or remedy that it may have (now or hereafter existing) at law, in equity or under statute; provided, however, that such rights and remedies will not be subject to the limitations set forth in Section 13.2. The parties agree that damages for violations of Section 11 may be difficult to ascertain or inadequate and that if either party violates or threatens to violate Section 11, the other party may suffer irreparable harm and therefore may seek injunctive relief in addition to any other right or remedy under this Agreement and any other right or remedy that it may have (now or hereafter existing) at law, in equity or under statute. The party that violates or threatens to violate Section 11 will not raise the defense of an adequate remedy at law.
Sprint must, during the term of this Agreement and at its sole expense, obtain and keep in force, the following insurance: (a) Commercial General Liability Coverage, including personal injury, bodily injury, property damage, operations hazard, independent contractor coverage, contractual liability, and products and completed operations liability, in limits not less than three million dollars ($3,000,000) for each occurrence (combined single limit), with Sprint named as insured in the policy and the Alliances named as additional insured in the policy; and (b) Worker’s Compensation and Employer’s Liability insurance. All required insurance policies must be taken out with reputable national insurers that are licensed to do business in the jurisdictions where Sprint is doing business. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated amounts set forth. Sprint agrees that certificates of insurance will be delivered to the Alliances within fifteen (15) days of the Effective Date. All policies must contain an undertaking by the insurers to notify the Alliances in writing not less than thirty (30) days before any cancellation of the insurance. The provision of insurance required in this Agreement will not be construed to limit or otherwise affect the liability of Sprint to the Alliances.
23
Table of Contents
The Alliances must, during the term of this Agreement and at their sole expense, obtain and keep in force, the following insurance: (a) Commercial General Liability Coverage, including personal injury, bodily injury, property damage, operations hazard, independent contractor coverage, contractual liability, and products and completed operations liability, in limits not less than three million dollars ($3,000,000) for each occurrence (combined single limit), with the Alliances named as insured in the policy and Sprint named as additional insured in the policy; and (b) Worker’s Compensation and Employer’s Liability insurance. All required insurance policies must be taken out with reputable national insurers that are licensed to do business in the jurisdictions where the Alliances are doing business. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated amounts set forth. The Alliances agree that certificates of insurance will be delivered to Sprint within fifteen (15) days of the Effective Date. All policies must contain an undertaking by the insurers to notify Sprint in writing not less than thirty (30) days before any cancellation of the insurance. The provision of insurance required in this Agreement will not be construed to limit or otherwise affect the liability of the Alliances to Sprint.
13. Indemnification; Limitation of Liability
Subject to the limitations set forth in Section 13.2, a party (the “Indemnitor”) agrees to indemnify, defend and hold harmless the other party and its directors, officers, employees, agents, successors and assigns (separately and collectively, the “Indemnitee”) from and against any third-party liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys’ fees incurred or suffered by the Indemnitee, arising out of (a) a breach by the Indemnitor of any covenant, representation or agreement in this Agreement, (b) an act or omission of the Indemnitor in the performance or non-performance of its obligations under this Agreement, (c) property damage or personal injury which may be assessed against or incurred by the Indemnitee relating to or arising out of any negligent, grossly negligent or intentional misconduct or omission of the Indemnitor or its directors, officers, employees, agents, successors and assigns in connection with the provision or use of services under this Agreement or (d) the violation by the Indemnitor of any law, regulation or ordinance applicable to the Indemnitor.
13.2 Indemnification Procedures
13.2.1 Notice
The Indemnitee will give the Indemnitor written notice within thirty (30) days of becoming aware that any formal or informal claim, demand, or request for indemnified losses under Section 13.1 will be or has been made against the Indemnitee, either individually or with others, (the “Indemnification Claim”).
24
Table of Contents
13.2.2 Defense by Indemnitor
If, within thirty (30) days after the giving of notice, the Indemnitee receives written notice from the Indemnitor stating that the Indemnitor intends to dispute or defend against the Indemnification Claim, the 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. The Indemnitee shall fully cooperate with the Indemnitor in the dispute or defense so long as the Indemnitor is conducting the dispute or defense diligently and in good faith; but the Indemnitor will not be permitted to settle the Indemnification Claim without the prior written approval of the Indemnitee, which approval will not be unreasonably delayed or withheld. Even though the Indemnitor selects counsel of its choice, the Indemnitee has the right to additional representation by counsel of its choice to participate in the defense at Indemnitee’s sole cost and expense.
13.2.3 Defense by Indemnitee
If (a) no notice of intent to dispute or defend the Indemnification Claim is received by Indemnitee within the thirty (30) day period, or (b) diligent and good faith defense is not being, or ceases to be, conducted, by the Indemnitor, the Indemnitee has the right to dispute and defend against the Indemnification Claim at the sole reasonable cost and expense of Indemnitor, but the Indemnitee will not permitted to settle the Indemnification Claim without the prior written approval of the Indemnitor, which approval will not be unreasonably withheld.
EXCEPT FOR RIGHTS AND REMEDIES SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT AND A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE PERFORMANCE OR NON-PERFORMANCE OR BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT, ITS ACTS OR OMISSIONS RELATED TO THIS AGREEMENT OR ITS USE OF THE PCS SERVICES.
14. Breach, Remedies and Early Termination of the Agreement
An event of default (an “Event of Default”) shall occur if:
(i) a party fails to make a payment of money when due, which failure continues for more than ten (10) business days after receipt of written notice from the other party;
(ii) a party fails to comply with any other material representation, warranty, obligation or covenant set forth in this Agreement, which failure either (A) continues for a period of more than sixty (60) consecutive days after receipt of written notice from the nonbreaching party specifying the breach or (B) is of a nature to require more than sixty (60) consecutive days
25
Table of Contents
(after receipt of notice from the nonbreaching party specifying the breach) to cure and continues for a period of more than the shorter of (x) one hundred twenty (120) consecutive days or (y) the period reasonably required to cure; except that this extended cure period is only available if the breaching party diligently works towards a cure;
(iii) a party fails to comply with Section 11, if that failure is not cured promptly upon receipt of notice from the party owning or enforcing that ▇▇▇▇ or in case of the repeated violations after receipt of the notice on one occasion;
(iv) a party ceases to do business as a going concern;
(v) a party is unable or admits its inability to pay its debts as they become due; or
(vi) a party institutes a voluntary proceeding, or becomes the subject of an involuntary proceeding which involuntary proceeding is not dismissed within sixty (60) days, under any bankruptcy act, insolvency law or any law for the relief of debtors, has a receiver appointed for the party which appointment is not dismissed, vacated or stayed within sixty (60) days, or executes a general assignment for the benefit of creditors.
Upon the occurrence of an Event of Default, the non-breaching party may, upon written notice to the breaching party, terminate this Agreement in its entirety or with respect to one or more Markets, depending on the nature of the breach, and, subject to the limitations set forth in Section 13.3, pursue any other right or remedy under this Agreement, or at law or in equity. Termination of this Agreement for any cause does not release either party from any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission prior to termination or from any obligation which is expressly stated to survive the termination. Sprint will remain responsible for its obligations to its agents and Sprint Customers.
Upon notice of non-renewal of this Agreement pursuant to Section 3.2 or notice of termination of this Agreement pursuant to 14.1 or Section 7.6.4, the Alliances, at Sprint’s request, will continue to provide PCS Services to Sprint on the terms provided for in this Agreement and at rates identical to the last scheduled calendar year of the term, for up to eighteen (18) months (the “Phase-Out Period”) (as determined by Sprint, subject to sixty (60) days of advance notice of termination of the Phase-Out Period) after the notice of non-renewal.
Each party agrees that it will not disclose any Proprietary Information received from the other party except as expressly provided in this Agreement. Each party agrees to use the Proprietary Information received from the other party only for the purpose of this Agreement. Except to the extent otherwise expressly provided herein, Proprietary Information will only be
26
Table of Contents
disseminated to such employees and other persons that have a bona-fide need-to-know of such information in order to assist a party in the performance of its obligations or the exercise of its rights under this Agreement. These obligations shall be binding upon the successors and assigns of each party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, or any other intellectual property rights are implied or granted under this Agreement or by the conveying of Proprietary Information between the parties. Proprietary Information means all information a party discloses to the other party which is marked “Confidential”, “Restricted”, “Proprietary”, or with some similar writing indicating the disclosing party considers the disclosed information to be proprietary. Notwithstanding the foregoing, (a) the Alliances and NTELOS shall have the right to make disclosures to (i) financing sources, to the extent reasonably related to the financing provided to or sought by the Alliances or NTELOS by its current or prospective financing sources, (ii) the Alliances Network’s infrastructure equipment vendor(s), to the extent reasonably related to compliance with network requirements under this Agreement and debt financing or guarantees provided by such vendor(s), and (iii) NTELOS Affiliates, accountants, bankers, current or prospective financing sources, consultants, or other parties with a bona fide interest in the financial performance and financial condition of NTELOS and the Alliances, provided that such persons agree to maintain the confidentiality of the Proprietary Information in accordance with the terms of this Agreement; and (b) NTELOS shall have the right to disclose the amount of revenue (by category) and the percentage change in rates (by category) under this Agreement in its consolidated financial statements.
All Proprietary Information, unless otherwise specified in writing, must be returned to the disclosing party or destroyed after the receiving party’s need for it has expired or upon request of the disclosing party, and, in any event, within ten (10) days of termination of this Agreement. At the request of the disclosing party, the receiving party will furnish a certificate of an officer of the receiving party certifying that Proprietary Information not returned to disclosing party has been destroyed.
The parties agree that the term “Proprietary Information” does not include information which:
(a) has been or may in the future be published or is now or may in the future be otherwise in the public domain through no fault of the receiving party;
(b) prior to disclosure pursuant to this Agreement is properly within the legitimate possession of the receiving party;
(c) subsequent to disclosure pursuant to this Agreement is lawfully received from a third-party having rights in the information without restriction of the third-party’s right to disseminate the information and without notice of any restriction against its further disclosure;
(d) is independently developed by the receiving party through parties who have not had, either directly or indirectly, access to or knowledge of Proprietary Information; or
27
Table of Contents
(e) is obligated to be produced under order of a court of competent jurisdiction or other similar requirement of a governmental agency, so long as the party required to disclose the information provides the other party with prior notice of the order or requirement.
If either party violates or threatens to violate this Section 15, the other party may exercise any right or remedy under this Agreement and any other right or remedy that it may have (now or hereafter existing) at law, in equity or under statute. The parties agree that damages for violations of Section 15 may be difficult to ascertain or inadequate and that if either party violates or threatens to violate Section 15, the other party may suffer irreparable harm and therefore may seek injunctive relief in addition to any other right or remedy under this Agreement and any other right or remedy that it may have (now or hereafter existing) at law, in equity or under statute. The party that violates or threatens to violate Section 15 will not raise the defense of an adequate remedy at law, subject to the limitations set forth in Section 13.2. A party must not disclose Proprietary Information during the term of this Agreement and for a period of one (1) year from the date of termination of this Agreement.
Sprint may not assign this Agreement, without the Alliances’ prior written consent, which consent may not be unreasonably withheld or delayed. Sprint hereby agrees that it will not sell, assign or transfer any material amount of the PCS Business (including Sprint Customers) in one or more Markets unless it first obtains and delivers to Sprint and the Alliances a written commitment from the transferee of such operations to be bound by, and to perform, the obligations of Sprint under this Agreement with respect to such Market(s).
16.2 By the Alliances or NTELOS
Neither the Alliances nor NTELOS may assign this Agreement without Sprint’s prior written consent, which consent may not be unreasonably withheld or delayed. The Alliances or NTELOS may collaterally assign this Agreement as security interest and to any entity which is or becomes a senior secured lender to the Alliances or NTELOS without the need to obtain Sprint’s consent. If the Alliances sell all or substantially all of their assets in one or more Markets, the Alliances shall require the purchaser of such assets to assume the obligations of the Alliances under this Agreement in such Markets(s), and the assumption of such obligations shall be a condition to closing such asset acquisition.
16.3.1 If at any time during the term of this Agreement, NTELOS (i) initiates a process to pursue a potential sale of 50% or more of Alliances’ assets or equity interests (a “Transaction”) to any third party (other than any National Sprint Competitor), or (ii) receives a bona fide proposal from any third party (other than any National Sprint Competitor) for a Transaction that NTELOS elects to pursue, NTELOS will invite Sprint to participate in such
28
Table of Contents
process. NTELOS will not consummate a Transaction with any third party on terms, taken as a whole in NTELOS’ sole discretion, that are less favorable to NTELOS than the terms, taken as a whole set forth in any offer received from Sprint (taking into account any aspects of such competing Transactions, including legal, financial (including the financing terms of such Transaction), regulatory or other considerations deemed relevant by NTELOS in its sole discretion), provided that such offer from Sprint has been made within the time line allowing NTELOS to consider the Sprint proposal while considering other proposals. Notwithstanding the foregoing, NTELOS may conduct such process in any manner that NTELOS, in its sole discretion, determines, including (i) changing the procedures relating to its consideration of any Transaction at any time without prior notice to Sprint or any other person, (ii) rejecting any and all proposals made with regard to a Transaction, (iii) terminating discussions and negotiations with Sprint or any other person at any time and for any reason, and (iv) terminating such process, provided that in the event that NTELOS subsequently initiates a process after such termination, NTELOS will invite Sprint to participate in such process.
16.3.2 If at any time during the term of this Agreement, NTELOS initiates a process to pursue a Transaction with any National Sprint Competitor, NTELOS will follow the process set forth in Section 16.3.1; provided, however, that NTELOS will allow Sprint to conduct reasonable due diligence with respect to the proposed Transaction in accordance with procedures to be established by NTELOS for a period of twenty-one (21) calendar days from the date NTELOS provides Sprint with notice of such Transaction (the “Offering Period”). NTELOS will permit Sprint to make a bona fide written offer with respect to a Transaction within the Offering Period (the “Sprint Offer”). After the Offering Period, NTELOS may pursue the Transaction with any third party, provided that NTELOS will not consummate a Transaction with any National Sprint Competitor on terms, taken as a whole in NTELOS’ sole discretion, that are less favorable to NTELOS than the terms, taken as a whole set forth in the Sprint Offer (taking into account any aspects of such competing Transactions, including legal, financial (including the financing terms of such Transaction), regulatory or other considerations deemed relevant by NTELOS in its sole discretion).
16.3.3 If at any time during the term of this Agreement, NTELOS receives a bona fide proposal from any National Sprint Competitor for a Transaction that NTELOS elects to pursue, NTELOS will invite Sprint to participate; however, the Offering Period set forth in Section 16.3.2 shall not apply. In the event that NTELOS terminates negotiation with such National Sprint Competitor and subsequently initiates a process to pursue a Transaction with any National Sprint Competitor, such process will be subject to the Offering Period in accordance with Section 16.3.2.
16.3.4 The parties acknowledge and agree that (i) nothing set forth herein requires NTELOS to violate any applicable law or regulation, its obligations to third parties, or its fiduciary duty, and (ii) NTELOS’ sole discretion under this Section 16.3 shall be subject to any obligations NTELOS may have under any applicable law or regulation, its obligations to third parties, or its fiduciary duty.
29
Table of Contents
In the event that the Alliances (i) sell all or substantially of their equity interests to a wireless communications services provider (other than Sprint) or (ii) assign this Agreement to a wireless communications services provider (other than Sprint) in accordance with Section 16.2 (clauses (i) and (ii) collectively, a “Wireless Successor”), at Sprint’s option, Sprint may require the Wireless Successor to engage a third party (to be selected by mutual agreement of the parties) to process certain Proprietary Information (subject to Section 15) required to be provided by Sprint in accordance with Schedule 2; provide, however, that (i) Sprint shall identify such Proprietary Information that will be subject to this Section 16.4, (ii) such arrangement shall not prohibit, impede, or adversely affect the Alliances’ (or the Wireless Successor’s) ability to perform their obligations under this Agreement, and (iii) Sprint and the Alliances (or the Wireless Successor) shall share equally the cost of engaging such third party.
Except as otherwise provided, all notices and inquiries 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) or sent by hand or overnight courier, (with acknowledgment received by the courier), or by facsimile (with facsimile acknowledgment) addressed as follows:
| If to Sprint: | Sprint Spectrum, L.P. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Eisenhower A ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Senior Vice President PCS Facsimile (▇▇▇) ▇▇▇-▇▇▇▇ | |
| With copies to: | Sprint Spectrum, L.P. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Eisenhower A Overland Park, Kansas 66251 Attention: General Counsel Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Sprint Spectrum, L.P. Legal – Telecom Management & Privacy Attention: Managing Senior Counsel ▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | |
| If to the Alliances, or NTELOS: |
NTELOS Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Chief Executive Officer Facsimile (▇▇▇) ▇▇▇-▇▇▇▇ | |
30
Table of Contents
| With a copy to: | NTELOS Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Senior Vice President-Legal and Regulatory Facsimile (▇▇▇) ▇▇▇-▇▇▇▇ |
Any party may from time to time specify a different address by notice to the other party. Any notice will be deemed to be delivered, given, and/or received for all purposes as of the date so delivered.
The definitions in this Agreement apply equally to both the singular and plural forms of the terms defined. Whenever the context requires, any pronoun includes the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” are deemed to be followed by the phrase “without limitation”. Unless the context otherwise requires, any references to any agreement, schedule or exhibit or to any 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 this Agreement specifically refers to “business” days, any reference in this Agreement to a “day” or number of “days” 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 that calendar day is not a business day for the Alliances or Sprint then the action or notice will be deferred until, or may be taken or given on, the next business day. This Agreement will be construed simply according to its fair meaning and not strictly for or against any party. No rule of construction requiring interpretation against the draftsperson will apply in the interpretation of this Agreement.
The parties do not intend to create any agency, partnership, joint venture or other profit-sharing arrangement, landlord-tenant, or lessor-lessee relationship, or any relationship other than seller-buyer. Neither party will represent itself as an agent or representative of the other, and neither party shall have the right to contractually bind the other. The staff employed or contracted for by the employing party to perform services in connection with this Agreement are not employees or agents of the other party and each party assumes full responsibility and liability for their acts and omissions, including compliance by its staff with this Agreement, applicable federal, state and local laws, regulations, and judicial or regulatory orders, and relevant industry standards. All staff will be employed or contracted for at the employing party’s sole expense and the employing party will be solely responsible for any and all employment benefits and withholdings issues, including, workers’ compensation, disability benefits, unemployment insurance or withholding income taxes and social security.
31
Table of Contents
The provisions of Sections 9, 10, 11, 13, 14, 15 and 17 will survive termination of this Agreement.
The article and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision of this Agreement.
Every provision of this Agreement is intended to be severable. If any term or provision of this Agreement is illegal, invalid or unenforceable for any reason whatsoever, that term or provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the illegality, invalidity or unenforceability will not affect the validity or legality of the remainder of this Agreement. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language which as closely as possible reflects the intent.
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to choice of law rules.
This Agreement may be executed in any number of counterparts with the same effect as if each party had signed the same document. All counterparts will be construed together and will constitute one agreement.
17.9 Entire Agreement; Amendments
This Agreement, including the Schedules and Exhibits, sets forth the entire agreement and understanding between the parties as to the subject matters covered therein and supersedes all prior agreements, oral or written, and other communications between the parties relating to the subject matter of this Agreement, including the Previous Agreement. Except as otherwise provided in this Agreement, no amendment or modification of this Agreement will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties.
32
Table of Contents
17.10 Parties in Interest; Limitation on Rights of Others
Except as otherwise provided in this Agreement, the terms of this Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Nothing in this Agreement, whether express or implied, will be construed to give any person other than the parties and their successors and assigns any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained in this Agreement.
The observance of any term of this Agreement may be waived (either 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 any party in exercising any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, or any abandonment or discontinuance of steps to enforce the right, preclude any other or further exercise thereof or the exercise of any other right.
If the performance of this Agreement is interfered with by any circumstance beyond the reasonable control of the party affected, the party affected by the force majeure is excused on a day-by-day basis to the extent of the interference, if the party notifies the other party as soon as practicable of the nature and expected duration of the claimed force majeure, uses all commercially reasonable efforts to avoid or remove the causes of nonperformance and resumes performance promptly after the causes have been removed. A “force majeure” under this Section 17.12 includes (i) acts of God, such as fire, flood, earthquake or other natural cause; (ii) terrorist events, riots, insurrections, war or national emergency; (iii) strikes, boycotts, or lockouts; (iv) the lack of or inability to obtain permits or approvals by any Governmental Authority through no fault of the party seeking such permits or approvals; and (v) requirements imposed by any Governmental Authority after the Effective Date.
All media releases and public announcements or public disclosures initiated by either party relating to this Agreement, its subject matter or the purpose of this Agreement are to be coordinated with and consented to by the other party in writing, which consent shall not be unreasonably withheld, prior to the release thereof.
The parties may, but are not obligated to, resolve any issue, dispute, or controversy arising out of or relating to this Agreement using the following procedures. Any party may give the other party notice of any dispute not resolved in the normal course of business. Within ten (10) business days after delivery of such notice, representatives of both parties may meet at a mutually acceptable time and place, and thereafter as often as they
33
Table of Contents
reasonably deem necessary, to exchange relevant information and to attempt to resolve the dispute by the respective representatives of both parties within the time frames and escalation process set forth below:
| Sprint (Name/Title) |
NTELOS/Alliances (Name/Title) | |||
| Within ten (10) business days |
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Director Roaming Services | ▇▇▇▇▇ ▇▇▇▇▇, Director of Intercarrier Relations & Wireless Administration | ||
| Within twenty (20) business days |
▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice-President – Global Advocacy | ▇▇▇▇ ▇▇▇▇▇▇▇, President-Wireless | ||
| Within thirty (30) business days |
▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice-President – Corporate Development | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer | ||
17.15 Relationship of this Agreement and the Previous Agreement
The Previous Agreement shall terminate in its entirety as of the Effective Date. This Agreement shall supersede and replace the Previous Agreement in its entirety as of the Effective Date.
17.16 Release of Claims Arising Under Previous Agreement
Except for amounts owed by Sprint to the Alliances under the current outstanding ▇▇▇▇, each party hereto hereby releases and discharges each of the other parties from any and all claims for damages, known or unknown, arising out of the performance or non-performance of the obligations of such other parties under the Previous Agreement prior to the Effective Date.
17.17 Duty of Good Faith and Fair Dealing
Each party hereto has a duty of good faith and fair dealing in connection with its performance under this Agreement. Each party shall perform its obligations under this Agreement in a diligent, legal, ethical and professional manner so as to advance the purposes and intent of this Agreement.
[Signatures appear on the following page]
34
Table of Contents
This Agreement is made as of the date first written above.
| WEST VIRGINIA PCS ALLIANCE, L.C. |
SPRINT SPECTRUM L.P. | |||||||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
By: | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Its: |
Chief Executive Officer | Its: | Senior Vice President | |||||
| VIRGINIA PCS ALLIANCE, L.C. |
SPRINT SPECTRUM L.P., on behalf of and as an agent for, SPRINTCOM, INC. | |||||||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
By: | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Its: |
Chief Executive Officer | Its: | Senior Vice President | |||||
| NTELOS INC. |
||||||||
|
By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
|||||||
| Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
|||||||
| Its: |
Chief Executive Officer and President |
|||||||
35
Table of Contents
EXECUTION COPY
Schedule 1
Markets
| BTA |
License Holder | Minimum BTA Spectrum Holdings (MHz) | ||
| Virginia BTAs |
||||
| Danville, VA |
VA Alliance | 15 | ||
| Lynchburg, VA |
VA Alliance | 15 | ||
| Martinsville, VA |
VA Alliance | 15 | ||
| Roanoke, VA |
VA Alliance | 15 | ||
| Staunton-Waynesboro, VA |
VA Alliance | 15 | ||
| Charlottesville, VA |
VA Alliance | ▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ |
||||
| ▇▇▇▇▇▇▇▇▇, ▇▇ |
WV Alliance | 15 | ||
| Beckley, WV |
WV Alliance | 15 | ||
| Charleston, WV |
WV Alliance | ▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇- ▇▇▇▇▇▇▇, ▇▇▇ |
▇▇ Alliance | 15 | ||
| Morgantown, WV |
WV Alliance | 15 | ||
| Clarksburg/Elkins, WV |
WV Alliance | 10 | ||
| Fairmont, WV |
WV Alliance | 15 | ||
| 1 |
Other than Gallia and Greenup Counties (except that the Alliances maintain cell sites in Greenup, KY and Flatwoods, KY in Greenup County.) |
Table of Contents
EXECUTION COPY
Schedule 2
PCS Services Pricing
The prices for all PCS Services provided by the Alliances to Sprint Customers will be at the rates provided in this Schedule 2.
I. VOICE
A. Home Voice Customers
1. Initial Prices
Beginning on July 1, 2007, the rates for Sprint Customers with local telephone numbers in the Markets (currently based on NPA/NXX codes) to access PCS Services (“Home Voice Customers”) shall be fixed through and up to July 1, 2008 as follows:
| Volume Tier Home Voice Customer Voice Rates | |||||||
| Tier |
From MOU | To MOU | MOU Rate ($) | ||||
| 1 |
0 | 125,000,000 | $ | 0.0326 | |||
| 2 |
125,000,001 | 144,999,999 | $ | 0.0293 | |||
| 3 |
145,000,000 | 164,999,999 | $ | 0.0264 | |||
| 4 |
165,000,000 | 184,999,999 | $ | 0.0238 | |||
| 5 |
185,000,000 | 204,999,999 | $ | 0.0214 | |||
| 6 |
205,000,000 | 224,999,999 | $ | 0.0192 | |||
| 7 |
225,000,000 | 244,999,999 | $ | 0.0173 | |||
| 8 |
245,000,000 | 264,999,999 | $ | 0.0156 | |||
| 9 |
265,000,000 | 284,999,999 | $ | 0.0140 | |||
| 10 |
285,000,000 | 304,999,999 | $ | 0.0126 | |||
| 11 |
305,000,000 | 324,999,999 | $ | 0.0114 | |||
| 12 |
325,000,000 | 344,999,999 | $ | 0.0102 | |||
| 13 |
345,000,000 | 364,999,999 | $ | 0.0092 | |||
| 14 |
365,000,000 | 384,999,999 | $ | 0.0083 | |||
| 15 |
385,000,000 or greater |
$ | 0.0075 | ||||
2. Price Resets
Beginning with the first calendar month following the first anniversary of the Effective Date (i.e., July 1, 2008), and every six (6) months thereafter, each of the Volume Tier Home Voice Customer Voice Rates set forth above shall be reset based on sixty percent (60%) of the percentage change in the National Average Sprint Retail Voice Revenue Yield (“National ASRVRY”) during the most recently completed six (6) month period less one (1) calendar quarter (“National ASRVRY-1”) as compared with the National ASRVRY for the six (6) month period immediately prior to the six (6) month period used to determine National ASRVRY-1 (“National ASRVRY-2”).
1
Table of Contents
EXECUTION COPY
The National ASRVRY for the applicable six (6) month period shall be the average of the Monthly National ASRVRY for each month during that six (6) month period. The “Monthly ASRVRY” shall be calculated by dividing Sprint’s National Retail Voice Average Revenue Per Unit (“National Retail Voice ARPU”) for each month by Sprint’s National Retail Voice Usage for that same month. Sprint’s National Retail Voice ARPU shall be calculated for each month in accordance with Section V of this Schedule 2. Sprint’s “National Retail Voice Usage” is defined as the total number of PCS Services voice minutes used by Sprint Specific Customers in each month of the applicable period divided by the average number of Sprint Specific Customers in the same month of the applicable period.
By way of example, for the price reset occurring on July 1, 2008, the National ASRVRY-1 would be the average of the Monthly ASRVRY for October of 2007 through and including March of 2008 and National ASRVRY-2 would be the average of the Monthly ASRVRY for April of 2007 through and including September of 2007.
The “Home Voice Customer Reset Percentage” is calculated by multiplying the result of 1 minus the ratio of National ASRVRY-1 to National ASRVRY-2 by 0.60 (1-(National ASRVRY-1/Natioanl ASRVRY-2)) * 0.6).
Once the Home Voice Customer Reset Percentage is determined, the new Tier 1 rate will be calculated by multiplying (i) the then prevailing Tier 1 rate by (ii) the result of 1 minus the Home Voice Customer Reset Percentage. The rates for each of the fourteen (14) additional pricing tiers shall be reset such that there is a ten percent (10%) decline from the previous tier.
On or before the 45th calendar day after the end of each calendar quarter, for purposes of calculating the National ASRVRY, Sprint shall provide the Alliances with Sprint’s National Retail Voice ARPU for each month of the most recently completed calendar quarter and Sprint’s National Retail Voice Usage for each month of the most recently completed calendar quarter. If Sprint does not provide such information on or before such 45th calendar day after the end of any calendar quarter, and after ten (10) days notice to Sprint, the Alliances shall have the option, in the Alliance’s discretion, (i) to continue to charge the Home Voice Customer Voice Rates from the preceding six (6) month period for an additional six (6) month period or (ii) to implement the price reset retroactively upon receiving the required information from Sprint.
Sprint must provide to the Alliances, at the request of the Alliances, documentation reasonably adequate for the Alliances to verify Sprint’s National Retail Voice ARPU and Sprint’s National Retail Voice Usage. Such documentation shall be derived from public documents and reports filed or released by Sprint. In the event of a dispute regarding the determination of the National ASRVRY, the parties shall work in good faith to resolve such dispute using the procedures set forth in Section 17.14 of the Agreement; provided, however, for the purpose of calculating the Home Voice Customer
2
Table of Contents
EXECUTION COPY
price reset, no changes will occur in Sprint’s National Retail Voice ARPU or Sprint’s National Retail Voice Usage until such dispute is resolved, and upon resolution, the new Home Voice Customer Voice Rates will apply retroactively to the beginning of the relevant period (including an appropriate adjustment for interest to the owed party at a daily interest rate equal to .0491% compounded monthly). In the event that the parties are unable to resolve the dispute within thirty (30) days following a notice by the Alliances of a dispute, the parties agree to follow the dispute resolution procedures described in Section III of this Schedule 2.
3. Long Distance
Sprint shall provide long-distance telephone services to Sprint Home Voice Customers using the Alliances Network for PCS Services in the Markets by interconnecting, and paying all costs related thereto, with direct telecommunications circuits to the Alliances Network facilities.
B. Travel Voice Customers
1. Initial Prices
Beginning on July 1, 2007, the rate for Sprint Customers with local phone numbers outside the Markets (currently based on NPA/NNX codes) to access PCS Services (“Travel Voice Customers”) shall be $0.042 per Minute of Use (“MOU”) up to July 1, 2008.
2. Price Resets
Beginning with the first (1st) calendar month following the first (1st) anniversary of the Effective Date and every six (6) months thereafter, the Travel Voice Customers Voice Rate for the next six (6) months shall be reset to equal ninety percent (90%) of the National ASRVRY during the most recently completed six (6) month period less one (1) calendar quarter. By way of example, for the price reset occurring on July 1, 2008, the National ASRVRY will be the average yield for the Fourth Quarter of 2007 through the First Quarter of 2008.
On or before the 45th calendar day after the end of each calendar quarter, for purposes of calculating the National ASRVRY, Sprint shall provide the Alliances with Sprint’s National Retail Voice ARPU for each month of the most recently completed calendar quarter and Sprint’s National Retail Voice Usage for each month of the most recently completed calendar quarter. If Sprint does not provide such information on or before such 45th calendar day after the end of any calendar quarter, and after ten (10) days notice to Sprint, the Alliances shall have the option, in the Alliance’s discretion, (i) to continue to charge the Travel Voice Customer Voice Rates from the preceding six (6) month period for an additional six (6) month period or (ii) to implement the price reset retroactively upon receiving the required information from Sprint.
3
Table of Contents
EXECUTION COPY
Sprint must provide to the Alliances, at the request of the Alliances, documentation reasonably adequate for the Alliances to verify Sprint’s National Retail Voice ARPU and Sprint’s National Retail Voice Usage. Such documentation shall be derived from public documents and reports filed or released by Sprint. In the event of a dispute regarding the determination of the National ASRVRY, the parties shall work in good faith to resolve such dispute using the procedures set forth in Section 17.14 of the Agreement; provided, however, for the purpose of calculating the Travel Voice Customer price reset, no changes will occur in Sprint’s National Retail Voice ARPU or Sprint’s National Retail Voice Usage until such dispute is resolved, and upon resolution, the new Travel Voice Customer Voice Rates will apply retroactively to the beginning of the relevant period (including an appropriate adjustment for interest to the owed party at a daily interest rate equal to .0491% compounded monthly). In the event that the parties are unable to resolve the dispute within thirty (30) days following a notice by the Alliances of a dispute, the parties agree to follow the dispute resolution procedures described in Section III of this Schedule 2.
3. Reciprocal Voice Rates - Alliances/NTELOS
NTELOS and its Affiliates, including the Alliances, shall enjoy reciprocal travel voice customer rates when their own customers are roaming on the Sprint PCS Services networks operated by Sprint, Sprint’s Affiliates, or Sprint Network Managers (“Sprint PCS Services Networks”).
When customers of NTELOS and its Affiliates, including the Alliances, are roaming on Sprint PCS Services Networks, the pricing of the long distance telephone services associated with such roaming (including, but not limited to, international, inter-state, intra-state and 800 calls) provided by Sprint, Sprint’s Affiliates, and Sprint Network Managers to such customers of NTELOS and its Affiliates, including the Alliances, shall be at rates that reflect the “most favored nations” rates of Sprint offered to Sprint Network Managers. Such long distance telephone services associated with roaming shall be billed rounded to the nearest second.
4. Long Distance
Sprint shall provide long distance telephone services to Sprint Travel Voice Customers using the Alliances Network for PCS Services in the Markets by interconnecting, and paying all costs related thereto, with direct telecommunications circuits to the Alliances Network facilities.
5. Reciprocal Voice Rates - Sprint
Sprint shall enjoy reciprocal travel voice customer rates and long distance telephone pricing, as described in Section 3 above, when Sprint Customers are roaming on the wireless communications network operated by NTELOS or its Affiliates, including the Alliances, outside of the coverage area of the Markets.
4
Table of Contents
EXECUTION COPY
C. 2G
For purposes of this Agreement, voice PCS Services shall include all PCS Services provided by means of 2G data packets.
II. DATA
A. Home Data Customer Data Rate
For purposes of applying the Home Data Customer Data Rate, “Home Data Customers” shall include only Home Voice Customers that are Sprint Specific Customers. All Home Voice Customers excluded from the Home Data Customer count shall be considered Travel Data Customers.
Beginning on July 1, 2007, the rate for 3G Data usage and EVDO Data usage of Home Data Customers shall be sixty percent (60%) of the average of Sprint’s National Retail Data Average Revenue Per Unit (“National Retail Data ARPU”) for each month during the most recently completed calendar quarter less one (1) calendar quarter (“Home Data Customer Data Rate”).
The National Retail Data ARPU shall include only 3G Data revenues and customers and EVDO Data revenues and customers.
The Home Data Rate shall be multiplied each month by the average number of Home Data Customers for the current month. Such average shall be the sum of the number of Home Data Customers at the end of the prior month and the number of Home Data Customers at the end of the current month divided by two (2).
For billing purposes, the Home Data Customer count used by the Alliances in issuing invoices shall be the last monthly average Home Data Customer count available to the Alliances. Once the actual average Home Data Customer count is provided to the Alliances by Sprint, the Alliances shall true up the amounts previously invoiced and shall include the true up amounts on the next Home Data Customer data invoice issued to Sprint.
On or before the 45th calendar day after the end of each calendar quarter, Sprint shall provide the Alliances with the National Retail Data ARPU for each month of that calendar quarter and the number of Home Data Customers by month for each month of that calendar quarter. If Sprint does not provide such information on or before such 45th calendar day after the end of any calendar quarter, and after ten (10) days notice to Sprint, the Alliances shall have the option, in the Alliance’s discretion, (i) to continue to charge the Home Data Customer Rate from the preceding six (6) month period for an additional six (6) month period or (ii) to implement the price reset retroactively upon receiving the required information from Sprint.
Sprint must provide to the Alliances, at the request of the Alliances, documentation reasonably adequate for the Alliances to verify Sprint’s National Retail
5
Table of Contents
EXECUTION COPY
Data ARPU and the number of Home Data Customers provided by Sprint. Such documentation shall be derived from public documents and reports filed or released by Sprint. In the event of a dispute regarding the National Retail Data ARPU or the number of Home Data Customers, the parties shall work in good faith to resolve such dispute using the procedures set forth in Section 17.14 of the Agreement; provided, however, for the purpose of calculating the Home Data Customer Data Rate, no changes will occur in the National Retail Data ARPU or the Home Data Customer count until such dispute is resolved, and upon resolution, the new Home Data Customer Data Rates will apply retroactively to the beginning of the relevant period (including an appropriate adjustment for interest to the owed party at a daily interest rate equal to .0491% compounded monthly). In the event that the parties are unable to resolve the dispute within thirty (30) days following a notice by the Alliances of a dispute, the parties agree to follow the dispute resolution procedures described in Section III of this Schedule 2.
B. Travel Data Customer Data Rate
1. Initial Prices and Resets through June 30, 2009
Beginning on July 1, 2007, the rate for 3G Data usage and EVDO Data usage by Travel Voice Customers, Home Voice Customers that were excluded from the Home Data Customer count in II(A) above, and any other Sprint Customer utilizing the Alliances Network for PCS Services data services (collectively, “Travel Data Customer”) shall be as follows:
| Travel Data Customer Data Rate | |||||
| From |
To | $/ MB | |||
| 7/1/2007 |
9/30/2007 | $ | 0.99 | ||
| 10/1/2007 |
12/31/2007 | $ | 0.94 | ||
| 1/1/2008 |
3/31/2008 | $ | 0.89 | ||
| 4/1/2008 |
6/30/2008 | $ | 0.85 | ||
| 7/1/2008 |
9/30/2008 | $ | 0.79 | ||
| 10/1/2008 |
12/31/2008 | $ | 0.73 | ||
| 1/1/2009 |
3/31/2009 | $ | 0.65 | ||
| 4/1/2009 |
6/30/2009 | $ | 0.59 | ||
For purposes of billing for Travel Data Customer data usage, the Alliances shall ▇▇▇▇ for each kilobyte (KB) with 1,024 KB equaling one (1) MB.
2. Price Resets after June 30, 2009
Beginning on July 1, 2009, the Travel Data Customer Data Rate shall be ninety percent (90%) of the Sprint National Average Retail Data Revenue Yield (the “National ▇▇▇▇▇”) during the most recently completed calendar quarter less one (1) calendar quarter and shall be reset every calendar quarter thereafter.
6
Table of Contents
EXECUTION COPY
The National ▇▇▇▇▇ shall be the average of the Monthly RDRY for each month during the applicable three (3) month period for such National ▇▇▇▇▇. The “Monthly RDRY” shall be calculated by dividing Sprint’s National Retail Data ARPU for each month of the applicable three (3) month period by Sprint’s National Retail Data Usage for each month of the same period. Sprint’s National Retail Data ARPU for each month shall be calculated in accordance with Section V of this Schedule 2. Sprint’s “National Retail Data Usage” is defined as the total number of PCS Services MBs used by Sprint Specific Customers in each month of the applicable period divided by the average number of Sprint Specific Customers in the same month of the applicable period.
By way of example, for the price reset occurring on July 1, 2008, the National ▇▇▇▇▇ would be the average of the Monthly RDRY for January of 2008 through and including March of 2008.
On or before the 45th calendar day after the end of each calendar quarter, Sprint shall provide the Alliances with Sprint’s National Retail Data ARPU for each month of the most recently completed calendar quarter and Sprint’s National Retail Data Usage for each month of the most recently completed calendar quarter for purposes of computing the National ▇▇▇▇▇. The National ▇▇▇▇▇ shall include only 3G data usage and revenues and EVDO data usage and revenues. If Sprint does not provide such information on or before such 45th calendar day after the end of any calendar quarter, and after ten (10) days notice to Sprint, the Alliances shall have the option, in the Alliance’s discretion, (i) to continue to charge the Travel Data Customer Data Rates from the preceding six (6) month period for an additional six (6) month period or (ii) to implement the price reset retroactively upon receiving the required information from Sprint.
Sprint must provide to the Alliances, at the request of the Alliances, documentation reasonably adequate for the Alliances to verify Sprint’s National Retail Data ARPU and Sprint’s National Retail Data Usage provided by Sprint. Such documentation shall be derived from public documents and reports filed or released by Sprint. In the event of a dispute regarding the determination of the National ▇▇▇▇▇, the parties shall work in good faith to resolve such dispute using the procedures set forth in Section 17.14 of the Agreement; provided, however, for the purpose of calculating the Travel Data Customer Data Rate reset, no changes will occur in Sprint’s National Retail Data ARPU or Sprint’s National Retail Data Usage until such pricing dispute is resolved, and upon resolution, the new Travel Data Customer Data Rate will apply retroactively to the beginning of the relevant period (including an appropriate adjustment for interest to the owed party at a daily interest rate equal to ..0491% compounded monthly). In the event that the parties are unable to resolve the dispute within thirty (30) days following a notice by the Alliances of a dispute, the parties agree to follow the dispute resolution procedures described in Section III of this Schedule 2.
7
Table of Contents
EXECUTION COPY
3. Reciprocal Data Rates
While roaming on Sprint PCS Services Networks, customers of NTELOS and its Affiliates, including the Alliances, using such Sprint PCS Services Networks including transport to the wireless communications networks operated by NTELOS or its Affiliates, including the Alliances, shall pay the then current Travel Data Customer Data Rate then being paid by Sprint to the Alliances.
4. Sprint Reciprocal Data Rates in Coverage Outside the Markets
While roaming on the wireless communications networks operated by NTELOS or its Affiliates, including the Alliances, outside the coverage of the Markets, Sprint Customers using such networks including transport to the SprintNetwork shall pay the then current Travel Data Customer Data Rate then being paid by Sprint to the Alliances.
III. DISPUTE RESOLUTION PROCEDURES
1. In the case of any unresolved dispute arising under this Schedule 2, the Alliances shall provide written notice of such dispute, together with an explanation of the nature of the dispute. Sprint shall respond to the Alliances in writing with regard to the dispute within ten (10) business days after receipt of notice of such dispute. If the parties are unable to resolve such unresolved dispute within thirty (30) business days of the date of Sprint’s response, the parties agree that an independent accounting firm mutually agreed to by the parties (the “Accounting Firm”) shall be employed to resolve such dispute as soon as reasonably practicable.
2. The parties shall direct the Accounting Firm to review the dispute and the supporting accounting records and other documents of Sprint as necessary in order to resolve the dispute. The determination of such Accounting Firm shall be final and binding upon the parties. In the event that an Accounting Firm is hired to resolve a dispute, the parties shall each pay half of the cost of the Accounting Firm.
IV. THOUSAND BLOCK POOLING / WLNP
Sprint shall reimburse the Alliances for all Thousand Block Number Pooling / WLNP database “dipping” charges incurred by the Alliances on account of providing PCS Services to Sprint Customers, such payments to be invoiced and paid in the timeframes set forth in Section 6 of the Agreement. However, such “dipping” charges shall be considered separate and additional charges and not charges for PCS Services and so such “dipping” charges shall not be included in the calculation of charges as set forth in this Schedule 2 and in Sections 6.1 and 6.2 of the Agreement.
V. PRICING INTENT AND CALCULATION OF NATIONAL SPRINT MEASURES
It is the intent of the Parties that the rates and charges as set forth in the Agreement and in this Schedule 2 shall fairly compensate the Alliances for all use by Sprint Customers of the Alliances Network. If use by Sprint Customers of the Alliances
8
Table of Contents
EXECUTION COPY
Network occurs which is not included in the Home Voice, Travel Voice, Home Data, or Travel Data categories of this Schedule 2, the parties will agree to include such usage in one or more such categories. Each Party acknowledges that it has a duty of good faith and fair dealing to cooperate to advance this intent now and in the future as technologies and services evolve. In furtherance of such intent given current technology and services, the Parties agree as follows:
A. Sprint’s National Retail Voice ARPU will consist of the following voice and text messaging components:
| 1. | Monthly recurring charge (MRC) |
| 2. | Voice attachables |
| 3. | Overages |
| 4. | Roaming |
| 5. | Long Distance |
| 6. | Text messaging (SMS) |
B. Sprint’s National Retail Data ARPU will consist of the following data components:
| 1. | Monthly recurring charge (MRC) |
| 2. | Premium Services |
| 3. | Other miscellaneous data charges |
C. In calculating Sprint’s National Retail Voice ARPU, Sprint’s National Retail Voice Usage, Sprint’s National Retail Data ARPU, and Sprint’s National Retail Data Usage, the following shall be excluded from such calculations:
| 1. | Revenues and usage from services and rate plans which Sprint does not generally make available to all Sprint Customers in the Markets. |
| 2. | Revenues and usage from Sprint Customers who cannot utilize CDMA technology. |
| 3. | Revenues and usage from customers that are not Sprint Specific Customers. |
| 4. | Revenues and usage from services which, although Sprint makes such services generally available in the Markets, such services do not utilize the Alliances Network, whether because such services do not utilize CDMA technology; do not use the spectrum bands used in the Alliances Network, or for any other reason. |
D. All customer counts, revenue, and usage that Sprint provides pursuant to this Schedule 2 shall be measured and calculated by Sprint in a consistent manner, period to period, for each time period for which such information is supplied.
9
Table of Contents
EXECUTION COPY
VI. PRICING OF ALLIANCES’ SERVICES IN THE MARKETS
During the Term of this Agreement and provided that Sprint is not in breach of this Agreement, the prices, terms and conditions, viewed collectively, offered to Sprint by the Alliances for PCS Services shall be no less favorable than the prices, terms and conditions, viewed collectively, offered by the Alliances in the Markets to any other customer under reasonably comparable circumstances and quantities for substantially similar services.
[
10
Table of Contents
EXECUTION COPY
Schedule 3
Billing Methodology (VOICE, DATA, DIPS)
I. VOICE BILLING
Methodology:
For purposes of ensuring uniformity across all switching platforms, each call record generated by the Alliances is disassembled into its distinct segments, each representing the participant to be billed (see Billing Methodology Definitions below). Some switches automatically perform this segmentation, as with Lucent, and others do not, as with Nortel. For those that do not, this segmentation is performed by downstream systems to ensure uniform billing. In some cases, the existence of one type of billable segment mitigates the need to ▇▇▇▇ for another type of segment, but in all cases disposition is determined for each segment.
Each call segment will be measured to the nearest second for billing purposes.
Definitions:
| Call Leg | Potentially billable segment of a call. Each call record has the potential of having three (3) call legs: | |
| Outbound Leg: Call segment from Originating Number to either Forwarding Number OR Terminating Number. Originating Number is the billable participant. | ||
| Forwarded Leg: Call segment from Forwarding Number to Terminating Number. Forwarding Number is the billable participant. | ||
| Inbound Leg: Call segment from Originating Number to Terminating Number. Terminating Number is the billable participant. | ||
| Participant | Any subscriber involved in a particular call, either actively or by proxy (as in the case of call forwarding). | |
| Originating | Indicates belonging to the participant initiating a call. | |
| Forwarding | Indicates belonging to the participant forwarding a call. | |
| Terminating | Indicates belonging to the participant receiving a call. | |
| Number | The DN (wireline) or MDN (wireless) belonging to a participant. | |
| DN | Directory Number | |
| MDN | Mobile Directory Number | |
| MSID | The Mobile Station Identification number belonging to a participant. | |
| Duration | The billable length of a call leg. Duration is calculated by deriving the difference of origination time and disconnect time for all call legs, including call setup time. | |
| Land | A call leg terminating to or originating from outside of the Alliances network. | |
| Mobile | A call leg terminating to or originating from a mobile handset on the Alliances network. | |
1
Table of Contents
EXECUTION COPY
| Homed Sprint: | Sprint Customer homed to the Alliances network as contemplated by Schedule 2 of this Agreement. | |
| Travelers | Sprint Customer not homed to the Alliances network as contemplated by Schedule 2 of this Agreement. | |
| Any Sprint | Any Sprint Customer. | |
The Eleven (11) Billable Scenarios and the Call Legs Involved:
Mobile to Mobile Call, both handsets or other device on the Alliances network:
| 1. | If the Originating Number is Any Sprint and the Terminating Number is Any Sprint, Sprint is billed for the Outbound Leg and the Inbound Leg. |
| 2. | If only the Originating Number is Any Sprint, Sprint is billed for only the Outbound Leg. |
| 3. | If only the Terminating Number is Any Sprint, Sprint is billed for only the Inbound Leg. |
| 4. | If neither the Originating Number is Any Sprint nor the Terminating Number is Any Sprint and the Forwarding Number is Homed Sprint, Sprint is billed only for the Forwarded Leg. |
Mobile to Land Call, mobile originating handset or other device is on Alliances network with call terminating outside of Alliances network:
| 5. | If the Originating Number is Any Sprint, Sprint is billed for only the Outbound Leg. |
| 6. | If the Originating Number is not Any Sprint and the Forwarding Number is Homed Sprint, Sprint is billed only for the Forwarded Leg. |
| 7. | If the Originating Number is not Any Sprint and the call is not forwarded and the Terminating Number is Homed Sprint and a Terminating MSID is present, Sprint is billed only for the Terminating Leg. |
Land to Mobile Call, mobile terminating handset or other device is on Alliances network with call originating outside of Alliances network:
| 8. | If the Terminating Number is Any Sprint, Sprint is billed for only the Inbound Leg. |
| 9. | If the Terminating Number is not Any Sprint and the Forwarding Number is Homed Sprint, Sprint is billed only for the Forwarded Leg. |
Land to Land Call, call neither originates nor terminates on the Alliances network yet passes through the Alliances network due to the requirements of call forwarding:
| 10. | If the Forwarding Number is Homed Sprint, Sprint is billed only for the Forwarded Leg. |
| 11. | If the call is not forwarded and the Terminating Number is Homed Sprint and a Terminating MSID is present, Sprint is billed only for the Terminating Leg. |
II. Data Billing
Methodology:
Data billing between the Alliances and Sprint is for Sprint originated data sessions on the Alliances” Network. Data sessions create data records called IPDR’s that are recorded onto Sprint owned equipment. IPDR’s are collected and translated by Sprint and sent to the Alliances for processing. The Alliances decode the IPDR’s to billing events and collect the number of kilobytes per session along with other event information. This information is aggregated and sent to Sprint for payment per the Agreement.
2
Table of Contents
EXECUTION COPY
Definitions:
| IPDR | IP Data Record, or record that is generated from a packet data session. | |
| Event | A data session on the Alliances’ network. | |
| Kilobyte (KB) | 1,024 Bytes. | |
| Megabyte (MB) 1,024 Kilobytes or 1,048,576 Bytes | ||
| MVNO | A company that provides mobile PCS service via the Sprint CDMA spectrum that does not have its own allocation of the radio frequency spectrum and/or all of the infrastructure required to provide PCS Service. | |
| Other | Non-Sprint carrier with whom NTELOS does not have a data roaming agreement. | |
Billable Scenarios and Methods Involved:
Each data session creates a series of billing records. The relevant record types are START, INTERIM, and STOP.
| START Records: | These records are created upon the initiation of a data session and include the username, AAA IP address, and other relevant data. | |
| INTERIM Records: | These records are created at pre-defined intervals as a method of tracking current activity. | |
| STOP Records: | These records are created when the data session ends. They show, among other things, the total bytes transferred between the data device and the network during the session. | |
For each billing period, the Alliances queries the IPDR’s sent and selects the STOP records – meaning that a session has completed – and sums the fields showing total bytes transferred for the sessions. The sums are aggregated based on the matrix below. Records are first differentiated by MSID into “Home” or “Travel” categories, and then further differentiated by Internet domain into “Sprint”, “MVNO”, or “Other”. This yields five (5) possible billing categorizations:
| Home-Sprint (HS): | Records with a Home MSID and a Sprint domain. | |
| Home-MVNO (HM): | Records with a Home MSID and an MVNO domain. | |
| Travel-Sprint (TS): | Records with a Travel MSID and a Sprint domain. | |
| Travel-MVNO (TM): | Records with a Travel MSID and an MVNO domain. | |
| Travel-Other (TO): | Records with a Travel MSID and neither a Sprint domain nor an MVNO domain. | |
3
Table of Contents
EXECUTION COPY
For categories HM, TS, TM, and TO, the sums are then divided by 1,048,576 to convert bytes into megabytes. Wholesale billing for these categories is calculated based on the sum total of MB for the period selected multiplied by the applicable rate per MB. For category HS, wholesale billing is not usage based. See Schedule 2.
Invoicing Process:
For the creation of the data billing invoice, the methods described above are employed to derive an aggregate by category for the billing period specified (example, the 1st to the 15th of the month, and the 16th to the end of the month). The aggregates and rates are detailed on the invoice.
4
Table of Contents
EXECUTION COPY
Schedule 4
Network Performance Standards and Requirements
Supporting documentation listed in this Schedule provided by Sprint is intended as reference material for NTELOS and the Alliances.
SUPPORTING DOCUMENTS PATHS AND LINKS
| Supporting Documents |
Availability | |
| Sprint Network Guidelines & Bulletins |
Sprint Provided | |
| Sprint SSEOs and MOPs |
Sprint Provided |
| Notes: | Certification by Exception – Indicates verification when exceptions are identified, or at the request of the Alliances. All Minimum Performance Level calculations listed below are inclusive of all BTS’s within all Markets. See heading “Acronyms” below for a list of acronyms used in this Schedule. |
| Alliances Network Performance Requirements |
Minimum |
Compliance |
Supporting Documentation |
Initial |
Recurring | |||||
| Blocks (1X Voice & Data) (total blocked calls for all cell site sectors) / (total attempted calls for all cell site sectors) |
<= 2% | Ongoing | • KPI Reports (See Note 1 and 2) • Schedule 4 Exhibit 1 (SLA) |
No | Monthly | |||||
| Drops (1X Voice & Data) (lost calls + dropped calls) / (assigned calls – call setup failures) |
• <= 2% November – March • <=2.5% April - October |
Ongoing | • KPI Reports See Note 2 ) • Schedule 4 Exhibit 1 (SLA) |
No | Monthly | |||||
| Base Transceiver Station (BTS) Availability (total seconds availability/ total outage seconds) |
>=99.7% | Ongoing | • KPI Reports • Schedule 4 Exhibit 1 (SLA) |
No | Monthly | |||||
| Base Station Controller (BSC) Availability (total seconds availability/ total outage seconds) |
>=99.997% | • KPI Reports • Schedule 4 Exhibit 1 (SLA) |
No | Monthly | ||||||
| Mobile Switching Center (MSC) Availability (total seconds availability/ total outage seconds) |
>=99.997% | ▇▇▇ | ▇▇▇ | No | Monthly | |||||
| Tandem Traffic GOS |
P .005 | Ongoing | KPI Reports | No | Certification by Exception | |||||
| End Office Traffic GOS |
P .01 | Ongoing | KPI Reports | No | Certification by Exception |
| Note1. |
The Parties acknowledge that during the EVDO Development process the Alliances network may suffer performance degradation as a result of integrating a new vendor into the network (hard handoffs, cluster re-optimization, etc.) KPI Reports will exclude performance anomalies associated with the EVDO upgrade until the 95% Completion of EVDO Deployment has occurred. |
| Note2. |
For Blocks and Drops the Alliances will provide Sprint with two separate KPI Reports, one for Motorola/Nortel network and one for the Lucent network, until such time that the Alliances integrate the reporting of both networks. |
1
Table of Contents
EXECUTION COPY
| Alliances Network Performance Requirements |
Minimum |
Compliance |
Supporting Documentation |
Initial |
Recurring | |||||
| Microwave Backhaul Availability (total seconds availability / total outage seconds) |
99.999% per link. Does not apply to unlicensed cell site microwave backhaul | Ongoing | • KPI Reports • Schedule 4 Exhibit 1 (SLA) |
No | Monthly | |||||
| Per User Fwd Link Throughput (kbps)—A customer experience KPI that provides a distribution of per user throughput. Ideally this KPI would report application layer throughput but if this is not available other layers can be used to estimate application. This KPI is aimed to quantify the network’s customer experience in terms of “user-friendly” throughput values. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Per User Rev Link Throughput (kbps) - A customer experience KPI that provides a distribution of per user reverse throughput. Ideally this KPI would report application layer throughput but if this is not available other layers can be used to estimate application. This KPI is aimed to quantify the network’s customer experience in terms of “user-friendly” throughput values. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Note3 |
Minimum Performance Levels for this EVDO-related Performance Requirement will be established by mutual agreement of the Parties after the Effective Date, provided that such Minimum Performance Levels shall be set at the performance levels that Sprint experiences, on average, with respect to EVDO service in Sprint markets with substantially similar characteristics as the Markets (e.g. density, topography, and customer base size). The Parties further agree to the following process and conditions: |
| 1. | As part of initial EVDO Deployment, the Alliances will install a minimum of one T1 circuit per EVDO carrier per BTS in each Market identified in Schedule 7. |
| 2. | Within 120 days following EVDO Deployment in the first Market identified in Schedule 7, the Parties will negotiate mutually agreeable Minimum Performance Levels for that Market. |
| 3. | Within 120 days following EVDO deployment in each subsequent Market identified in Schedule 7, the Parties will negotiate mutually agreeable Minimum Performance Levels for that Market, and such Minimum Performance Levels shall then be aggregated with the Minimum Performance Levels previously agreed for prior Markets identified on Schedule 7. The Alliances shall report on Minimum Performance Levels on an aggregate basis. |
2
Table of Contents
EXECUTION COPY
| 4. | The Alliances may change from the initial requirement of one T1 circuit per EVDO carrier per BTS in a Market, to one shared T1 circuit per EVDO carrier and 1x carrier per BTS, under the following conditions: |
| a. | The Alliances have deployed EVDO to three of the Markets identified in Schedule 7 and Minimum Performance Levels have been established in such Markets, |
| b. | The Alliances continue to meet the established Minimum Performance Levels for EVDO, and |
| c. | If there is an adverse impact in a Market upon the Alliances’ ability to meet the established Minimum Performance Levels for EVDO, the Alliances will revert to the initial requirement of one T-1 circuit per EVDO carrier per BTS in that Market. |
| Alliances Network Performance Requirements |
MinimumPerformance |
Compliance Date |
Supporting Documentation |
Initial |
Recurring | |||||
| Average Packet Delay (scheduler delay) - A network management KPI that provides the average delay experienced per packet. Delays at both the RNC and DOM should be included. This KPI is aimed to provide a view into scheduler efficiency and RAN latency. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| UATI Assignment Success Rate - A network management KPI that qualifies the ability for EVDO devices to acquire a unique network identifier (UATI). This activity is done without acquiring a traffic channel and therefore relies on the success of the access channel and paging channel messages. |
TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Session Configuration Success Rate - A network management KPI that quantifies the ability for EVDO devices to negotiate specific protocol configurations with the network. This KPI includes all failure types. Payload data cannot be transmitted or received without first successfully establishing a session. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
3
Table of Contents
EXECUTION COPY
| Connection Failure Rate - Network Management - A network management KPI that quantifies the ability for EVDO devices to connect to our network. This KPI includes all failure reasons such as unavailable resources (equipment blocks) and RF failures. |
TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Connection Setup Time - A customer experience KPI that quantifies the time it takes for an idle AT to acquire a connection on the traffic channel. This time will be seen by the customers as latency and therefore could cause slow perceived throughput. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Dropped Connection Rate - Network Management -A network management KPI that quantifies the ability of our network to sustain an established connection. These connection failures occur after connection setup has completed. This KPI includes all failure reasons. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
| Paging Success Rate - A network management KPI that quantifies the ability of our network to locate and successfully contact Ev-DO devices with active sessions. | TBD per Note 3 | Ongoing | KPI Reports | No | Monthly | |||||
4
Table of Contents
EXECUTION COPY
| Alliances Outage Management & MTTR |
Minimum Performance Level |
Compliance Date |
Supporting |
Initial Certification |
Recurring | |||||
| Alliances Implementation and Connectivity to Sprint Clarify Trouble Ticketing System (via CITRIX) | See Note 4 | Ongoing | Schedule 4 Exhibit 1 (SLA) | No | N/A | |||||
| Network Outage Management and Mean Time to Repair (MTTR) Goals | • Trouble Severity (TS) 1 events cleared < 2 hours • TS2 events cleared < 3 hours • TS3 & TS4 events cleared < 5 hours |
Ongoing | Schedule 4 Exhibit 1 (SLA) | No | Daily/Hourly/Monthly | |||||
| Customer Trouble Ticket Mean Time To Repair (MTTR) without dispatch | • Trouble Severity (TS) 1 events cleared < 4 hours • TS2 events cleared < 8 hours • TS3 & TS4 events cleared < 24 hours |
Ongoing | Schedule 4 Exhibit 1 (SLA) | No | Daily/Hourly/Monthly | |||||
| Customer Trouble Ticket Mean Time To Repair (MTTR) with dispatch | • Trouble Severity (TS) 1 events cleared < 8 hours • TS2 events cleared < 12 hours • TS3 & TS4 events cleared < 36 hours |
Ongoing | Schedule 4 Exhibit 1 (SLA) | No | Daily/Hourly/Monthly | |||||
Note 4 - Sprint agrees to cover all cost associated with such implementation, including but not limited to hardware, software, and engineering consulting services pursuant to connectivity to Sprint Clarify Trouble Ticketing System (via CITRIX).
5
Table of Contents
EXECUTION COPY
| Alliances Platform Requirements |
Supported Models |
Compliance Date | Supporting Documentation |
Initial Certification |
Recurring Certification | |||||
| MSC Hardware | • Nortel DMS-MTX • Lucent Flexent Packet Switch |
Ongoing | N/A | Yes | Certification by Exception | |||||
| MSC / Software | • Lucent: • BTS – R28 or greater • ECP – R28 or greater • RNC – R28 or greater It is understood that these are generally available software releases. |
Ongoing | N/A | Yes | Certification by Exception | |||||
| Q-Chat RAN Software | • Lucent: • QOS Licensing enabled • MLPPP enabled It is understood that these are Q-Chat proprietary software features |
Q-Chat launch | N/A | Yes | Certification by Exception | |||||
| BSC/BTS Hardware | • Nortel / Motorola IOS • Lucent |
Ongoing | N/A | Yes | Certification by Exception | |||||
| Data Network Elements • 3G cards at BTS (see Note 4) • EV-DO Rev A cards at BTS • Packet Control Function (PCF) |
• BTS cards to match BTS Vendor • PCF to match BSC/BTS Vendor |
Ongoing | N/A | Yes | Certification by Exception | |||||
6
Table of Contents
EXECUTION COPY
| Sprint / Alliances Network Connectivity |
Minimum Standard |
Compliance |
Supporting |
Initial |
Recurring | |||||
| Voice National Platform Connectivity • Voicemail (VMS) • Voice Command (VC) • Operator Services (OS) • Directory Assistance (DA) • Sprint Customer Solutions • SS7 – Based National Platforms: • Home Location Register (HLR) • SMSC • Location-Based Services • SDHLR |
• VMS: ▇▇▇ ▇▇-▇’s directly connected to Sprint VMS platform; switched connectivity for VMS redirect allowed if no Sprint subs are homed to the Alliances MSC. • VC: Direct trunk from the Alliances MSC to Sprint VC Platform. • OS: Switched circuit from the Alliances MSC to Sprint POP (PIC 177). • DA: Direct trunk from the Alliances MSC to Sprint DA vendor POP. • Sprint Customer Solutions: Direct trunk to Sprint POP (PIC 333). • SS7 - Based National Platforms: Diverse SS7 connectivity via ▇▇▇ ▇▇▇▇▇▇▇ Provider. • SMSC – Connectivity to Sprint MO SMSC for messages originated by Sprint subs; MT via SS7 connectivity • See Note 5 |
Ongoing | • SSEOs 0.002.09.001 0.002.09.002 0.015.14.002 0.015.15.003 0.015.15.005 0.015.15.006 0.053.15.001 2.015.06.003 3.000.10.004 3.014.09.001 |
Yes | Certification by Exception | |||||
| Sprint Core Data Network Connectivity
The Alliances MSC PCF (Packet Control Function) connectivity to Sprint owned and operated Packet Data Service Node (PDSN) and Inter-Networking Function (IWF) Platform |
Sprint is responsible for MSC PCF connectivity to Sprint owned and operated PDSN and IWF platform.
Sprint is responsible for all Sprint Core Data Network Connectivity from Sprint owned and operated Packet Data Service Node (PDSN) and Inter-Networking Function (IWF) Platform |
Ongoing | N/A | No | Certification by Exception | |||||
Note 5 – Sprint is responsible for all facility cost associated with required connectivity and for the management of such facilities (growth orders, fault reporting and escalation, maintenance, etc.)
7
Table of Contents
EXECUTION COPY
| Alliances Network Operations |
Minimum Standard |
Compliance |
Supporting |
Initial |
Recurring | |||||
| Digit Translations Standards |
Transparent customer experience for Sprint PCS subscribers operating in Alliances Resale coverage areas.
See Note 6 |
Ongoing | • Sprint Translations Standards • SSEOs 0.002.09.001 0.002.09.002 2.000.02.006 2.000.03.002 2.002.03.019 3.000.10.004 |
Yes | Certification by Exception | |||||
| SS7 Interconnection (Switches and Translations) |
Fully diverse SS7 transport between MSC and Gateway STP Pair | Ongoing | • Sprint Translations Standards • SSEOs 0.002.09.001 0.002.09.002 2.000.03.002 2.008.12.001 3.000.10.004 |
Yes | Certification by Exception | |||||
| Virgin Mobile USA (VMU) Service Support |
Transparent customer experience for VMU subscribers operating in Alliances Resale Network coverage areas | Ongoing | • VMU Implementation Plan • SSEOs 0.002.09.001 0.002.09.002 2.000.03.002 3.000.10.004 |
Yes | Certification by Exception | |||||
| Qwest Service Support |
Transparent customer experience for Qwest subscribers operating in the Alliances Resale Network coverage areas | Ongoing | • Sprint Translations Standards • SSEOs 0.002.09.001 0.002.09.002 2.000.03.002 3.000.10.004 • Qwest Detailed Design Document |
Yes | Certification by Exception | |||||
Note 6 Per the Schedule 4, Exhibit 1, the Alliances and Sprint agree to jointly review the MOP to ensure the potential impacts of the requested change is thoroughly analyzed. If the MOP review reveals that there would be a detrimental impact to Sprint or the Alliances Customers if the project was undertaken the requested change will not be implemented. Excepting however if Sprint desires to provide, at Sprint’s sole cost, software and / or hardware functionality that would allow the change to be made without impact to either party’s customers or network.
8
Table of Contents
EXECUTION COPY
| Alliances Network Operations |
Minimum Standard |
Compliance |
Supporting |
Initial |
Recurring | |||||
| Telco Prepaid Service Support | Transparent customer experience for Telco Prepaid subscribers operating in the Alliances Resale Network coverage areas | TBD | • Telco Prepaid Service – Phase 2 Implementation Plan • Sprint Translations Standards • SSEOs 2.000.03.002 3.000.10.004 • Telco Prepaid Detailed Design Document |
Yes | Certification by Exception | |||||
| Announcements | Sprint customers routed to generic announcements | Launch | Yes | Certification by Exception | ||||||
| Sprint Wireless National Operations Control Center (NOCC) and Escalations | Notification to Sprint NOCC of outages on Alliances network pursuant to Schedule 4 Exhibit 1 (SLA) | Ongoing | Schedule 4 Exhibit 1 (SLA) | Yes | Daily | |||||
| Alarms | Notification to Sprint NOCC of outages on Alliances network pursuant to Schedule 4 Exhibit 1 (SLA) | Ongoing | Schedule 4 Exhibit 1 (SLA) | Yes | Preventive Maintenance | |||||
| Disaster Preparedness & Recovery | Disaster Preparedness Plan (DPP) completed and on file at Sprint PCS NOCC | Ongoing | • SSEOs 2.000.04.030 2.000.04.031 2.002.03.017 2.003.03.002 2.004.03.001 2.004.03.002 2.004.03.003 2.004.03.004 2.004.03.006 2.014.12.009 2.015.03.001 2.040.04.001 3.014.09.001 |
No | Preventive Maintenance | |||||
9
Table of Contents
EXECUTION COPY
| Alliances Regulatory Requirements |
Minimum Standard |
Compliance Date |
Supporting |
Initial Certification |
Recurring Certification | |||||
| FAA/FCC Mandate and Regulatory Compliance | FCC / FAA Standards | Ongoing | FCC Standards Documentation | Yes | Certification by Exception | |||||
| 911/E911 | FCC Standards | Ongoing | • SSE0s 0.002.09.001 0.002.09.002 0.031.12.002 2.031.14.001 2.031.15.001 3.000.10.004 3.031.14.001 3.031.14.002 • FCC Standards Documentation |
Yes | Certification by Exception | |||||
| TeleTypeWriter (TTY) | FCC Standards | Deployed | • SSEOs 0.002.09.001 0.002.09.002 3.000.10.004 • FCC Standards Documentation |
Yes | Certification by Exception | |||||
| Wireless Local Number Portability (W/LNP) | FCC Standards | Deployed | • SSEOs 0.002.09.001 0.002.09.002 3.000.10.004 • FCC Standards Documentation |
Yes | Certification by Exception | |||||
| Communications Assistance for Law Enforcement Act (CALEA) | FCC / FAA Standards | Deployed | • SSEOs 0.002.09.001 0.002.09.002 2.000.05.009 3.000.10.004 • FCC Standards Documentation |
Yes | Certification by Exception | |||||
| National Environment Policy Act (NEPA) — Land Use & RF | • FCC Standards • Alliances will abide by standards on a go forward basis |
Ongoing | • SSEOs 1.003.09.002 1.003.09.003 • FCC Standards Documentation |
Yes | Certification by Exception | |||||
10
Table of Contents
EXECUTION COPY
Acronyms
| Acronym |
Definition | |
| 2G | Second Generation (IS-95 Standard) | |
| 3G | Third Generation (CDMA 2000 Standard) | |
| AAA | Authentication, Accounting and Accounting – Data Network node responsible for authenticating data subscribers and billing for usage | |
| BSC | Base Station Controller | |
| BTS | Base Transceiver Station – Cell Site | |
| CDMA | Code Division Multiple Access – Digital standard used by Sprint for their wireless subscribers | |
| CMC | Sprint Change Management Control | |
| CTTP | Call Through Test Plan – Used to verify dial plans at switch launch or when a new feature is added to the network | |
| DA | Directory Assistance | |
| Db | Decibel | |
| ECP | Executive Cellular Processor (Lucent) | |
| EI EV-DO |
Electromagnetic Interference Evolution-Data Optimized Revision A | |
| FA | Foreign Agent – Portion of the 3G data network responsible for subscribers not homed to this network or Home Agent node | |
| FAA | Federal Aviation Administration | |
| FCC | Federal Communications Commission | |
| GOS | Grade of Service | |
| HA | Home Agent – Portion of the 3G data network responsible for home subscribers | |
| HLR | Home Location Register – Contains subscriber information, including current subscriber status, location and supported features | |
| KPI | Key Performance Indexes | |
| KPI | Key Performance Indicators | |
| MOP | Method Of Procedure | |
| MSC | Mobile Switching Center | |
| MTTR MVNO |
Mean Time to Repair Mobile Virtual Network Operator | |
| NQTR | Network Quality Tracking Report | |
| OPAC | Sprint Operational Acceptance process | |
| OS | Operator Services (Dial 0) | |
| OSSN | Operations Systems Support Network – Sprint core data network | |
| OTAF | Over The Air Functionality – Ability to download changeable parameters in 2G environment (pull) | |
| OTAPA | Over The Air Parameter Administration – Ability to download changeable parameters to the handset in 3G environment (push) | |
| PCF | Packet Control Function – Directs data calls from the BSC/ECP to the data network | |
| PCS | Personal Communications Services | |
| PDSN | Packet Data Service Node | |
| RF | Radio Frequency | |
| SS7 | Signaling System #7 | |
| SSEO | Sprint Spectrum Engineering & Operations Documentation | |
| Trouble Severity 1 | 100% of service affected. TS1 is reserved for significant customer impacting events. A TS1 is the failure of any National, Local or OSSN Platform which completely prohibits any market from call processing, accessing wireless web, accessing Voice Command, accessing billing records (CDRs), provisioning or activating customers’ MIN service or technical fatality or serious injury. Loss of service to 4 or more NPA-NNX’s, 10 or more cell sites, or a critical cell cluster, and other similar situations are also a TS1. The complete loss of a service of significant feature will have a significant customer impact. Therefore, these services will often be classified as TS1. This decision is always driven by executive decision. | |
| Trouble Severity 2 | 50-99% of service affected. TS2 events are major customer impacting events, causing serious impairment or loss of service to large customer segments, but do not result in total isolation. For example, loss of 2 or 3 NPA-NNX’s, 5 –9 cells or a critical cell, and other similar situations are also a TS2. Failure of a redundant component is classified as a TS2, if the failure of the remaining component will result in a TS1. | |
| Trouble Severity 3 | 25-49% of service affected. TS3 is assigned to minor events requiring immediate corrective action, usually |
11
Table of Contents
EXECUTION COPY
Acronyms
| Acronym |
Definition | |
| affecting capacity, redundancy, or minor customer segments. For example, loss of a single NPA-NNX, 1 to 4 cells, less than 50% capacity reduction to a service or feature is a TS3. An outage that impairs Network Management’s ability to maintain the network, such as loss of visibility, is also a TS3. | ||
| Trouble Severity 4 |
0-24% of service affected. TS4 events are for observation, and are not outage related. A TS4 does not require immediate corrective action, and is handled through scheduled maintenance. | |
| Trouble Severity 5 |
No service affected. TS5 is an advisory category. This is used to manage events of particular interest to Sprint PCS executives. TS5 events are not customer impacting. If there are related customer impacting events they will be documented and assessed separately. For example, major weather advisories are TS5. The weather may cause network outages that will be tracked independently from the weather. In this case the TS5 notifications supercede the outage notifications. | |
| TTY |
TeleTypeWriter | |
| VAD |
Voice Activated Dialing | |
| VLR |
Visitor Location Register – Temporary database holding a local copy of the subscriber’s HLR profile | |
| VMU |
Virgin Mobile USA |
12
Table of Contents
EXECUTION COPY
| Sprint Spectrum Engineering & Operations (SSEO) Referenced In This Schedule 4
| ||
| SSEO |
Title / Description | |
| 0.002.09.001 | Lucent Translations Standards | |
| 0.002.09.002 | Nortel Translations Standards | |
| 0.002.09.005 | Initial Field Inventory Procedures for Nortel Switch Equipment | |
| 0.002.09.006 | Initial Field Inventory Procedures for Lucent Switch Equipment | |
| 0.002.09.007 | Initial Field Inventory Procedures for Battery & Power Rooms | |
| 0.002.09.009 | Initial Field Inventory Procedures for Motorola CBSC Equipment, Rev. 1.0 | |
| 0.002.09.012 | Initial Field Inventory Procedures for Nortel Base Station Subsystem Managers (BSSM) | |
| 0.003.09.002 | Initial Field Inventory Procedures for Lucent Cell Sites | |
| 0.003.09.004 | Initial Field Inventory Procedures for Motorola Cell Site, Rev. 2.0 | |
| 0.003.09.005 | Initial Field Inventory Procedures for Motorola SC485XE Cell Site, Rev. 1.0 | |
| 0.003.09.006 | Initial Field Inventory Procedures for Motorola SC4812 Cell Site, Rev. 2.0 | |
| 0.003.09.007 | Initial Field Inventory Procedures for Nortel NNTM Metro Cell Rev. 2.0 | |
| 0.003.09.008 | Initial Field Inventory Procedures for Lucent Microcell Sites, Rev. 1.0 | |
| 0.003.09.009 | Initial Field Inventory Procedures for Lucent Modcell Sites Rev. 1.0 | |
| 0.003.09.010 | Initial Field Inventory Procedures for Motorola SC4812ET Lite Cell Site, Rev. 1.1 | |
| 0.003.09.011 | Initial Field Inventory Procedures for Motorola SC4812T, Rev. 1. | |
| 0.012.09.001 | Initial Field Inventory Procedures for Alcatel Microwave Equipment | |
| 0.015.14.002 | Service Level Agreement: PSTN Trunk Order (Install, Augments) Including SS7 A-Links | |
| 0.015.15.003 | Methods & Procedures: Assigning National Platform Ports | |
| 0.015.15.005 | Methods & Procedures: Provisioning | |
| 0.015.15.006 | Methods & Procedures: Validating Trunk Requirements, Designing Trunks and Issuing Trunk Requests | |
| 0.031.12.002 | Operational Support Plan: E911 – Phase II | |
| 0.053.15.001 | Methods & Procedures: Voice Command Port Assignment | |
| 1.001.05.001 | Tower Light Monitoring, Reporting, and Power Backup | |
| 1.001.15.002 | Methods & Procedures: New Tower Construction | |
| 1.001.15.003 | Methods & Procedures: Tower Light Break / Fix (PDM #493) | |
| 1.003.09.001 | Antenna Structure Compliance Procedures | |
| 1.003.09.002 | NEPA Land Use Compliance Procedures for Cell Sites | |
| 1.003.09.003 | NEPA RF Exposure Compliance For Cell Sites | |
| 2.000.02.006 | Building a Modcell in Translations for Lucent Switches | |
| 2.000.03.002 | Change Management Practices | |
| 2.000.04.030 | RF Engineering Guidelines for Disaster Preparedness | |
| 2.000.04.031 | Wireless Network Management Center Event Escalation & Notification Procedures | |
| 2.000.05.009 | Operational Support Plan: CALEA (Lucent) | |
| 2.000.08.001 | TCP/IP Address Requisition Form (Single) | |
| 2.000.08.002 | TCP/IP Address Requisition Form (Multiple) | |
| 2.001.12.001 | Tower Light Alarm Notification and Response Procedures and Guidelines | |
| 2.002.03.005 | Switch Site Surge Protection Installation and Replacement | |
| 2.002.03.017 | MSC Switch Site Generator Exercise Process | |
| 2.002.03.019 | MSC Systems Backup Standards | |
| 2.003.03.001 | Cell Site Surge Protection Installation and Replacement | |
| 2.003.03.002 | RF Transmission Systems Preventive Maintenance | |
| 2.003.03.009 | Nortel Outdoor Metrocell BTS Wiring Interconnections | |
| 2.003.03.010 | Motorola Outdoor SC 4812 BTS Wiring Interconnections | |
| 2.003.03.011 | Lucent Outdoor Modcell BTS Wiring Interconnections | |
| 2.003.04.002 | Cell Site Power Transfer | |
| 2.004.03.001 | Cell Site Back-Up Power (Battery Reserve and Generator) Requirements | |
| 2.004.03.002 | Cell Site Power Preventive Maintenance | |
| 2.004.03.003 | MSC Power Preventive Maintenance | |
| 2.004.03.004 | AC Switchgear Preventive Maintenance | |
| 2.004.03.005 | Lucent BTS RF Power Calibration | |
13
Table of Contents
EXECUTION COPY
Sprint Spectrum Engineering & Operations (SSEO) Referenced In This Schedule 4
| SSEO |
Title / Description | |
| 2.004.03.006 |
MSC Process for Disconnecting Utility & Emergency Power at AC Switchgear and Batteries | |
| 2.008.12.001 |
SS7 Channel Bank Engineering Standard | |
| 2.009.09.001 |
Physical Security — Retail Loss Prevention Policy and Procedures | |
| 2.014.03.001 |
Electrostatic Protection | |
| 2.014.12.009 |
Wireless Network Management Center (WNMC): Entrance/Exit Criteria | |
| 2.014.14.001 |
Service Level Agreement: Network Inventory Management and Network Field Operations | |
| 2.015.03.001 |
Transport/Backhaul Preventive Maintenance | |
| 2.015.06.003 |
Wireless Carrier-To-Wireless Carrier Interconnection Process | |
| 2.015.12.005 |
Standard Transport Equipment | |
| 2.018.03.001 |
MSC Grounding Preventive Maintenance | |
| 2.018.03.002 |
Cell Site Grounding Preventive Maintenance | |
| 2.031.15.001 |
Methods & Procedures: 9-1-1 Service for Public Safety Provisioning Processes | |
| 2.036.03.021 |
Lucent, Motorola, Nortel, and Samsung BTS Scan Points | |
| 2.036.03.022 |
Generator and Tower Light Alarming: Moving Scan Points from the RTU (AlphaMax) to Base Station Monitoring | |
| 2.040.04.001 |
Network Operations - Network Event Trouble Severities Classifications | |
| 2.052.12.001 |
Operational Support Plan: 3G Authorization, Authentication and Accounting (AAA) Server (v1.1) | |
| 2.052.12.002 |
Operational Support Plan: 3G Home Agent | |
| 2.052.12.003 |
Operational Support Plan: 3G Network Service Provisioning (NSP) System | |
| 2.052.12.004 |
Operational Support Plan: 3G PDSN/Foreign Agent | |
| 2.052.12.005 |
MSC OSSN & 3G Hub Standard Configuration and Layout | |
| 2.052.12.006 |
Operational Support Plan: 3G Business Connection/HS RAS v1.0 | |
| 2.052.15.001 |
Methods & Procedures: PDSN Capacity Management | |
| 3.000.09.002 |
Nationwide PCS Network CDMA RF Design Specifications (Rev. 10) | |
| 3.000.10.004 |
Network Management – Operational Acceptance (OPAC) Process | |
| 3.001.02.001 |
Post-Construction Height Verification Practice for Cell Sites | |
| 3.003.06.003 |
Interference and Collocation of PCS Transmitters with Other RF Equipment | |
| 3.003.10.007 |
Antenna Transmission Line Acceptance Standards | |
| 3.009.09.001 |
Outdoor Enclosures for Backhaul | |
| 3.012.12.001 |
Microwave Processes and Standards | |
| 3.014.09.001 |
National Platform Operations-Intelligent Network Operations Team (NPO-INO): Entrance/Exit Criteria | |
| 3.015.13.004 |
In-building Passive Repeater Engineering | |
| 3.018.06.001 |
Lightning Protection for Tower Antennas | |
| 3.018.10.001 |
Soil Resistivity Testing | |
| 3.018.10.002 |
Site Resistance to Earth Testing | |
| 3.031.14.001 |
Service Level Agreement: 911 Implementation and National Project Management | |
| 3.031.14.002 |
Service Level Agreement: Translations and E911 Implementation |
14
Table of Contents
EXECUTION COPY
Exhibit 1
To Schedule 4
Network Service Level Agreement
| 1. | INTRODUCTION. |
As used in this Service Level Agreement (“SLA”), “Network” means the Alliances Network.
The purpose of this SLA is to establish a cooperative partnership between the Alliances and Sprint by clarifying roles and expectations, providing mechanisms for resolving problems and providing financial remedies to Sprint for failure to meet certain service levels. The terms of this SLA are subject to all the terms of the Agreement, including without limitation the network specifications in Schedule 4. The remedies contained in this SLA are in addition to any other remedies available to Sprint under the Agreement.
The Alliances will provide twenty four hour a day seven days a week 1st Tier technical support for the Alliances Network switching and radio frequency (RF) elements within the Markets. Such technical support shall include:
| • | System maintenance required on the Alliances Network switching and RF elements to support Sprint services. |
| • | Ordering of Type II facilities required in support of Sprint Customers for local calling services. |
| • | Provisioning of DS1’s from DeMuxed DS3 in support of Sprint NATPLAT services. |
| • | Provisioning of Clear Channel DS3 in support of Sprint OSSN services. |
| • | Translations of network switching elements in support of Sprint customers. |
| • | Resolution of Sprint trouble tickets reported to the Alliances on Radio Frequency (RF), Translations, and Roaming issues. |
NETWORK SWITCHING ELEMENTS: Network switching elements are those elements within the Alliances Network required to support Sprint local, NATPLAT, and 3G Data Services. This includes, but is not limited to, the Nortel switch, Motorola CBSC’s, Lucent Flexent Packet Switch, Cisco MGX, Cisco CAT, STP, Tellabs DACS or other de-muxing equipment, and facility backhaul network equipment.
RF ELEMENTS: RF elements are those elements within the Alliances Network required to provide RF coverage within the Markets. This includes, but is not limited to, Motorola base stations, Lucent base stations, repeaters, antennas, lines, and jumpers.
1
Table of Contents
EXECUTION COPY
SYSTEM MAINTENANCE: System maintenance is described in two categories, preventative maintenance (“PM”) and emergency maintenance (“EM”). Any routine PM on network switching elements will be performed during the maintenance window of 00:00 to 06:00, unless circumstances require the maintenance to occur outside of the maintenance window. EM will be performed on an as needed basis.
The Alliances represent that routine PM will not normally result in service interruptions. In the event that PM requires the interruption of service, to the extent possible, the Alliances will notify the designated Sprint point of contact identified in this Exhibit 1 to Schedule 4 to the Agreement.
TRANSLATION MAINTENANCE: Translation maintenance is the modification, addition, or deletion of routing plans within the Alliances Network switching elements supporting Sprint. The switching elements include, but are not limited to, the Nortel switch and the Lucent Flexent Packet Switch in support of call routing, Tellabs DACS in support of facility services, STP in support of call routing, CBSC in support of RF network, AN network in support of 3G Data Services and fiber network in support of facilities backhaul network.
PROJECT: Projects are described in one of two ways. First, any translations support required for facilitating new or modified service offerings by Sprint within the Markets, and second, any operations support required for facilitating new or modified service offerings by Sprint within the Markets. Sprint will provide the Alliances sixty (60) days advance written notice, and include a detailed Method of Procedure (“MOP”), when translation and/or operation support is required from the Alliances. Within ten (10) business days of receiving the written notice the Alliances and Sprint agree to jointly review the MOP to ensure the potential impacts of the requested change is thoroughly analyzed. If the MOP review reveals that there would be a detrimental impact to Sprint or the Alliances Customers if the project was undertaken the requested change will not be implemented. If it is deemed that the requested change does not have a detrimental impact the Alliances and Sprint will work together to develop a mutually agreeable schedule for implementation.
FACILITY SERVICES: Facility services shall be defined as any connectivity (e.g., DS0, DS1, DS3, OC3, OC12, OC48, etc.) required by Sprint to interconnect with the MTSO(s) on the Alliances Network to support Local calling services, NATPLAT, OSSN or 3G Data services. For the Alliances to ensure capacity requirements are met, Sprint must provide the Alliances with quarterly advanced forecasts of Facility Services requirements. The Facility Services Process is described below:
Facility Services Process
| • | Channelized DS3 demarcation point (DeMuxed DS3 Demarc) will be defined as the established DS1 DSX panel locations within the MTSOs. |
| • | DS3 demarcation point (DS3 Demarc) will be defined as DS3 connectivity to the DS3 DSX point locations within the MTSOs. |
2
Table of Contents
EXECUTION COPY
| • | Wireless Operations will be responsible for the Facility Services cross-connection and maintenance of said cross-connections from the DeMuxed DS3 Demarc and the DS3 Demarc to appropriate locations within the MTSO locations. |
| • | Subject to the prior written approval of the Alliances, Sprint shall be responsible for the delivery of Facility Services to the DS3 Demarc and the DeMuxed DS3 Demarc within the MTSO locations. |
| • | Sprint will use the Alliances’ Wireless Network Provisioning management as primary contact for Facility Services design and implementation projects from the DeMuxed DS3 Demarc and the DS3 Demarc to appropriate locations within the MTSO locations. |
| • | Sprint will use the Alliances’ Wireless Operations management as primary contact for Facility Services testing and activation, as well as Facility Services trouble resolution from the DeMuxed DS3 Demarc and the DS3 Demarc to appropriate locations within the MTSO locations. |
| • | The Alliances Facility Services Process is a thirty (30) business day time interval (Time Interval). |
| • | Time Interval commences on the date of Sprint submittal of a completed Special Circuit Request order (SCR) to NTELOS Wireless Network Provisioning (▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇). |
| • | A completed SCR shall include the following: |
| 1. | Circuit identification of backhaul facility; |
| 2. | Time Slot on backhaul facility; |
| 3. | Sprint circuit identification of switch facility within the MTSO; |
| 4. | Sprint Purchase Order Number (PON); |
| 5. | Sprint FP number(s); |
| 6. | Sprint Trunk Group Number; |
| 7. | Trunk Circuit Identification Code(s) (TCICs); |
| 8. | Requested due date; |
| 9. | Contact information for Sprint personnel; |
| 10. | Sprint Switch Common Language Location Identification (CLLI) for the terminating switch; |
| 11. | Sprint Point Code for the terminating switch; and |
| 12. | NTELOS Trunk Group name. |
| • | Sprint changes to a submitted SCR may prolong stated Time Interval. |
| • | For new trunk groups, the Alliances will be responsible for assigning trunk group administration numbers and trunk group names. |
NETWORK TROUBLE MANAGEMENT AND OPERATIONAL PROCEDURES:
NETWORK OUTAGE NOTIFICATIONS: The Alliances will provide notification to the Sprint NOCC of network outages and resolution there of for ▇▇▇, ▇▇▇ and TS3 network events via the CMC/NetSmart application. Sprint will be responsible for providing the Alliances access to the CMC/NetSmart system.
3
Table of Contents
EXECUTION COPY
CUSTOMER TROUBLE TICKET MANAGEMENT: The Alliances will respond to Sprint’s customer trouble tickets using Sprint’s Clarify trouble ticketing system via connectivity to CITRIX.
4
Table of Contents
EXECUTION COPY
Alliances Operational and Engineering Contacts
| ▇▇▇ ▇▇▇▇▇▇
Director of Site Development
(W) (▇▇▇) ▇▇▇-▇▇▇▇
(PCS) (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President - Wireless Engineering and Operations
(W) (▇▇▇) ▇▇▇-▇▇▇▇
(PCS) (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
| |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇
Director of Engineering
(W) (▇▇▇) ▇▇▇-▇▇▇▇
(PCS) (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
NTELOS NOC (twenty four hours a day seven days a week coverage)
(▇▇▇) ▇▇▇-▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇▇▇▇
Director of RF Performance and Network Operations
(W) (▇▇▇) ▇▇▇-▇▇▇▇
(PCS) (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
||
5
Table of Contents
EXECUTION COPY
Sprint Operational and Engineering Contacts for Agreement
| ▇▇▇ ▇▇▇▇▇
Revenue Operational Testing
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Traffic Engineering
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇
Numbering Solutions
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ |
Sig Tomeldan
SS7 E911
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇
Switch Provisoning
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ |
▇▇▇ ▇▇▇▇
E911
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇
SS7 Provisioning
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ |
▇▇▇▇ ▇▇▇▇▇▇ – Alliances POC
Service Management
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
OSSN Provisioning
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇.▇▇▇ |
Sprint Wireless NOCC
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ | |
6
Table of Contents
EXECUTION COPY
| 2. | NETWORK PERFORMANCE COMMITMENTS. |
The Alliances Network Performance SLAs are measured across specific Alliances Network elements, and apply to sites on the Alliances platforms as stipulated in Schedule 4. In addition to Sprint’s remedies available to it under the Agreement, if the Alliances fail to attain these objectives, the Alliances will provide a service credit as provided below. In addition, the Alliances will develop and implement a commercially reasonable plan (herein referred to as a “Get Well Plan”) to attain the objective and will share that plan with Sprint.
| 2.A. NETWORK | BLOCK RATE (Voice & Data). |
| 2.A.1. Network | Block Commitment. |
| • | Definition – Percentage of total blocked call attempts to total call attempts, measured each hour must be less than that set forth in Schedule 4 (“Network Block Commitment”). |
| • | Network Block Rate: |
Definition—Total blocked calls for all cell site sectors over all of the Markets / Total attempted calls for all cell site sectors over all of the Markets (“Network Block Rate”).
| 2.A.2. Network | Block Validation. |
The Alliances will provide to Sprint on a monthly basis the actual Network Block Rate in a summary report format.
| 2.A.3. Network | Block Service Credit. |
If the actual Network Block Rate fails to meet the Network Voice Block Commitment for any calendar month during the term of the Agreement, Sprint will notify the Alliances of such failure at which time the Alliance will provide Sprint with a Get Well Plan within fifteen (15) days of notification. The Alliances will have two (2) months after Sprint’s receipt of the Get Well Plan in
7
Table of Contents
EXECUTION COPY
which to cure. If after such two (2) month cure period the Alliances do not meet or exceed such Network Block Commitment in the month following expiration of the two (2) month cure period, the Alliances will issue a service credit to Sprint equal to two percent (2%) of Sprint’s total voice call charges for that month following the expiration of cure period and for each consecutive month thereafter in which such failure continues. Approved service credit(s) will be applied to Sprint’s invoice during the next available ▇▇▇▇ cycle.
| 2.B. NETWORK | DROP RATE (Voice & Data). |
| 2.B.1. Network | Drop Commitment. |
| • | Definition – Percentage of established calls that were lost as a result of mobile equipment problems, RF failure (loss of continuity in traffic going from mobile to cell site), cell site problems, and switch hardware/software failures must be less than that set forth in Schedule 4 (“Network Drop Commitment”). |
| • | Network Drop Rate – |
Definition—Lost calls + dropped calls / Assigned calls – call setup failures (“Network Drop Rate”).
| 2.B.2. Network | Drop Validation. |
The Alliances will provide to Sprint on a monthly basis the actual Network Drop in summary report format.
| 2.B.3. Network | Drop Service Credit. |
If the actual Network Drop Rate fails to meet the Network Drop Commitment for any calendar month during the term of the Agreement, Sprint will notify the Alliances of such failure at which time the Alliances will provide Sprint with a Get Well Plan within fifteen (15) days of notification. The Alliances will have two (2) months after Sprint’s receipt of the Get Well Plan in which to cure. If after such two (2) month period the Alliances do not meet or exceed such Network Drop Commitment in the month following the expiration of the two (2) month cure period, the Alliances will issue a service credit to Sprint equal to two percent (2%) of Sprint’s total voice call charges for that month following the expiration of cure period and for each consecutive month thereafter in which such failure continues. Approved service credit(s) will be applied to Sprint’s invoice during the next available ▇▇▇▇ cycle.
| 2.C NETWORK | ELEMENT AVAILABILITY |
| 2.C.1. Network | Element Availability Commitment. |
8
Table of Contents
EXECUTION COPY
| • | Definition—Unplanned network element outage resulting in a total call processing outage that does not meet the requirements set forth in Schedule 4 (“Network Element Availability Commitment”). |
| • | Network Elements which Availability will be Monitored |
| 1. | Base Transceiver Station(s) (BTS) |
| 2. | Base Station Controller(s) (BSC) |
| 3. | Mobile Switching Center(s) (MSCs) |
| 4. | Microwave Backhaul Availability (excluding unlicensed microwave used for cell site backhaul) |
| • | Network Element Availability Equations |
| 1. | For BTS, BSC, MSC, Microwave Backhaul (= total seconds availability/ total outage seconds) |
| 2.C.2. | Network Element Validation. |
The Alliances will provide to Sprint on a monthly basis the actual Network Element Availability for each Network Element included in 2.C.1 in a summary report format.
| 2.C.3. | Network Element Availability Service Credit. |
If any Network Element listed above in 2.C.1 fails to meet the Network Element Availability Commitment for any calendar month during the term of the Agreement, Sprint will notify the Alliances of such failure at which time the Alliances will provide Sprint with a Get Well Plan within (15) days of notification. The Alliances will have two (2) months after Sprint’s receipt of the Get Well Plan in which to cure.
If after such two (2) month period the Alliances do not meet or exceed objectives stipulated in Schedule 4 for BTS, BSC, MSC, and Microwave Backhaul Availability in the month following the expiration of the two month cure period, the Alliances will issue a service credit to Sprint equal to two percent (2%) of Sprint total voice call charges for that month following the expiration of the cure period and for each consecutive month thereafter in which such failure continues. Approved service credit(s) will be applied to Sprint’s invoice during the next available ▇▇▇▇ cycle.
9
Table of Contents
EXECUTION COPY
Schedule 5
Alliances and Sprint Representatives
Alliances: ▇▇▇▇▇ ▇▇▇▇▇
Director of Intercarrier Relations & Wireless Administration
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (office)
▇▇▇-▇▇▇-▇▇▇▇ (PCS)
Sprint: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Director, Roaming Services
KSOPHH0312-3A153
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (office)
▇▇▇-▇▇▇-▇▇▇▇ (PCS)
▇▇▇-▇▇▇-▇▇▇▇ (fax)
▇▇▇.▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Table of Contents
EXECUTION COPY
Schedule 6
Sprint Core Features and Services
The following matrix details the current required Sprint products and services that must be supported by the Alliances with a brief description of the products/services and their respective high-level requirements.
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| EDVO REV A Data Products and Services (Vision)
Vision is a suite of applications and services using the high speed third generation network.
Supported Products:
• Business Connection
• Enterprise Edition
• Business Edition
• Server Edition
• Connection Manager
• Wireless ISP
• PCS Data Link
• High Speed Remote Access Server (HS RAS)
• Messaging Services
• Instant Messaging
• Wireless Chat
• Picture and Video Mail
• 3G Gaming
• Ringers and Screen Savers
• Downloadable Premium Applications |
Voice Network Datafill Data NetworkDatafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
¨ x x ¨ ¨ ¨ x x x x x x |
Sprint Hosted | |||
1
Table of Contents
EXECUTION COPY
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| • Wireless Telemetry
• Java-enabled applications
• 3rd Party Instant Messaging
• 3rd Party Chat
• 3rd Party Content
• QCHAT |
||||||
| 3G1X Data Product and Services (Vision)
Vision is a suite of applications and services using the high speed third generation network.
Supported Products:
• Business Connection • Enterprise Edition
• Business Edition
• Server Edition
• Connection Manager
• Wireless ISP
• PCS Data Link
• High Speed Remote Access Server (HS RAS)
• Messaging Services
• Instant Messaging
• Wireless Chat
• Picture and Video Mail
• 3G Gaming
• Ringers and Screen Savers |
Voice Network Datafill Data Network Datafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
¨ x x ¨ ¨ ¨ x x x x x x |
Sprint Hosted | |||
2
Table of Contents
EXECUTION COPY
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| • Downloadable Premium Applications
• Wireless Telemetry
• Java-enabled applications
• 3rd Party Instant Messaging
• 3rd Party Chat
• 3rd Party Content |
||||||
| Ready Link (Push To Talk )
Ready Link provides two-way walkie-talkie style communications between Sprint ready line subscribers. |
Voice Network Datafill Data Network Datafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
¨ x x ¨ ¨ ¨ ¨ x ¨ x x x |
Sprint Hosted | |||
| 2G Data Products and Services
Data products using the high speed second generation (IS-95) network.
Supported Products:
• Text and Numeric Paging
• Short Mail
• Wireless Web Browser
• Wireless Web Connection
• Wireless Web Updates |
Voice Network Datafill Data Network Datafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
x x x ¨ ¨ ¨ ¨ ¨ x ¨ x x |
Sprint Hosted | |||
3
Table of Contents
EXECUTION COPY
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| • My Wireless Web
• Wireless Web Enterprise Applications
• Direct Internet Access
• Business Connection – Personal Edition
• Ringers & More
• ECare HDML Interactive |
||||||
| FCC Mandates
Regulatory requirements as defined by the Federal Communications Convention.
• 911 Basic
• ▇-▇▇▇ ▇▇▇▇▇ ▇
• ▇-▇▇▇ ▇▇▇▇▇ ▇
• 711 / TTY
• CALEA
• Other FCC Requirements |
Voice Network Datafill Data Network Datafill Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
x ¨ x ¨ x ¨ ¨ ¨ ¨ ¨ ¨ ¨ |
Alliances Hosted | |||
| Voice Services and Dial Plans
Required voice service and dial plan support for Sprint Customers operating on the Alliances Network.
• Mobile to Land
• Land to Mobile
• Mobile to Mobile
• Call waiting
• Caller ID |
Voice Network Datafill Data Network Datafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
x ¨ ¨ x ¨ ¨ x ¨ ¨ ¨ ¨ x |
Alliances Hosted | |||
4
Table of Contents
EXECUTION COPY
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| • Call Delivery
• 3-Way Calling
• Call Forwarding
• Abbreviated Dial Codes (ADC - # and * codes)
• Inter-lata Toll Dialing
• Intra-lata Toll Dialing
• International Dialing
• Hot Lining
• Call restriction (toll-denied)
• Integrated Office
• Account Spending Limits (ASL)
• Private Label Services (PLS)
• Qwest
• Virgin Mobile USA
• Telco Prepaid |
||||||
| Sprint National Platform Access
Required dial plan and routing support to route Sprint Customers to nationally hosted services.
• One-touch Voicemail access (envelope key)
• Customer Care Access (*2, 611)
• Directory Assistance (411) |
Voice Network Datafill Data Network Datafill Network Element Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
x ¨ ¨ x ¨ x x ¨ ¨ ¨ ¨ x |
Sprint Hosted | |||
5
Table of Contents
EXECUTION COPY
| Product / Service and Description |
Technical and Operational Requirements |
Host | ||||
| • Operator Services (dial 0)
• Voice Command (*TALK)
• Basic text & numeric paging
• Mobile Originated and Mobile Terminated SMS |
||||||
| Over the Air Functionality (OTAF)
Provide download of PRL, MDN and other definable parameters directly to the Handsets.
• Over the Air Service Provisioning – OTASP (Pull)
• Over The Air Parameter Administration (OTAPA)
• IP Based Over The Air Parameter Administration - IOTA (Push) |
Voice Network Datafill Data Network Datafill Technical Data Customized Dial Plans PSAP Connectivity Direct Connect Circuit SS7 Connectivity / Gateway AAA Connectivity IWF Connectivity PDSN Connectivity Packet Transport Connectivity Direct Connect to Billing Interface |
x x x ¨ ¨ x x ¨ ¨ ¨ ¨ ¨ |
Sprint Hosted | |||
6
Table of Contents
EXECUTION COPY
Schedule 7
EVDO Deployment Schedule
| CLUSTER |
MARKET |
Sprint Whole Sites |
% of Wholesale Sites |
% Cumulative Wholesale Coverage |
Sprint Contract | |||||||
| Cluster A |
1. Charlottesville 2. Huntington 3. Staunton/Waynesboro |
144 | 24 | % | 24 | % | Q208 | |||||
| Cluster B |
4. Lynchburg 5. Charleston |
142 | 24 | % | 48 | % | Q308 | |||||
| Cluster C |
6. Roanoke | 125 | 21 | % | 69 | % | Q408 | |||||
| Cluster D |
7. Morgantown 8. Fairmont 9. Clarksburg |
85 | 14 | % | 83 | % | Q109 | |||||
| Cluster E |
10. ▇▇▇▇▇▇▇ 11. Bluefield |
52 | 9 | % | 92 | % | Q209 | |||||
| Cluster F |
12. Martinsville 13. Danville |
47 | 8 | % | 100 | % | Q309 | |||||
| Total | 595 | |||||||||||