ADDENDUM IX
TO
SPRINT PCS MANAGEMENT AGREEMENT AND
SPRINT PCS SERVICES AGREEMENT
AMENDING THESE AGREEMENTS FURTHER AND RESTATING CERTAIN
PARAGRAPHS IN ADDENDA I THROUGH VIII
DATED AS OF SEPTEMBER 12, 2003
MANAGER: ALAMOSA WISCONSIN LIMITED PARTNERSHIP
SERVICE AREA BTAS:
Appleton-Oshkosh # 18,
Eau Claire # 123,
Fond du Lac # 148,
Green Bay # 173,
La Crosse-Winona # 234,
Madison # 272 (Only Columbia, Juneau, Marquette, Sauk Counties and those
portions of Dane County where Manager will meet Sprint PCS coverage along
Highway 151 and I-90/94 north of Madison),
Manitowoc # 276,
Milwaukee# 297 (Only those portions of Dodge County not currently covered by
Sprint PCS along Highway 41 and the City of Watertown),
Minneapolis-St. Paul # 298 (Only Barron County and those portions of Polk County
not currently covered by Sprint PCS along Highway 8 near the city of St. Croix
Falls),
Sheboygan # 417,
Stevens Point-Marshfield-Wisconsin Rapids # 432,
Wausau-Rhinelander # 466.
This Addendum IX (this "ADDENDUM") contains amendments to the terms of
the Sprint PCS Management Agreement and the Sprint PCS Services Agreement, both
of which were entered into on December 6, 1999 by the same parties to this
Addendum. The Management Agreement and Services Agreement were amended by:
(1) Addendum I dated as of December 6, 1999,
(2) Addendum II dated as of February 3, 2000,
(3) Addendum III dated as of April 25, 2000,
(4) Addendum IV dated as of June 23, 2000,
(5) Addendum V dated as of February 14, 2001,
(6) Addendum VI dated as of March 30, 2001,
(7) Addendum VII dated as of July 19, 2002, and
(8) Addendum VIII dated as of November 29, 2002.
The purposes of this Addendum are to (1) amend the Management
Agreement, the Services Agreement, the Trademark License Agreements and the
Schedule of Definitions and restate those paragraphs in the addenda executed
previously that amend the Management Agreement, the Services Agreement, the
Trademark License Agreements and the Schedule of Definitions (see Section A
below), and (2) provide cross-references to those paragraphs in addenda executed
previously that are not restated in this Addendum (see Section B below).
The terms and provisions of this Addendum control over any conflicting
terms and provisions contained in the Management Agreement, the Services
Agreement, the Trademark License Agreements and the Schedule of Definitions. The
Management Agreement, the Services Agreement, the Trademark License Agreements,
the Schedule of Definitions and all prior addenda continue in full force and
effect, except for express modifications made in this Addendum. This Addendum
does not change the effective date of any prior amendment made to the Management
Agreement, the Services Agreement, the Trademark License Agreements and the
Schedule of Definitions through previously executed addenda.
Capitalized terms used and not otherwise defined in this Addendum have
the meaning ascribed to them in the Schedule of Definitions, as amended, and
additional terms defined in prior addenda. Section and Exhibit references are to
sections and Exhibits of the Management Agreement unless otherwise noted.
The parties are executing this Addendum as of the date noted above, but
the terms of this Addendum do not become effective until the first calendar day
of the first calendar month after all of the following conditions are satisfied
or waived by Sprint PCS in writing:
(1) The Settlement Agreement and Mutual Release between Sprint Spectrum
L.P., SprintCom, Inc., Sprint Communications Company L.P., WirelessCo, L.P.,
Alamosa Holdings, Inc., Alamosa (Delaware), Inc., Alamosa Holdings, LLC, Alamosa
Missouri, LLC (f/k/a Roberts Wireless Communications, LLC), Southwest PCS, L.P.,
Washington Oregon Wireless LLC, Alamosa Wisconsin Limited Partnership and Texas
Telecommunications, LP is executed and delivered, and the payment required under
that agreement is paid and received.
(2) The following addenda, each dated September 12, 2003, are executed and
delivered to Sprint PCS and the appropriate Alamosa Managers:
o Alamosa Missouri, LLC Addendum X,
o Alamosa Wisconsin Limited Partnership Addendum IX,
o Southwest PCS, L.P. Addendum V,
o Texas Telecommunications, LP Addendum X, and
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o Washington Oregon Wireless LLC Addendum VI.
(3) Alamosa Holdings, Inc. and Alamosa (Delaware), Inc. consummate the
Exchange Offer, the Proposed Amendments and the amendment of the terms of the
Senior Secured Credit Facility, all as described in the Offer to Exchange of
Alamosa Holdings, Inc. and Alamosa (Delaware), Inc.
On the effective date the Management Agreement, the Services Agreement, the
Trademark License Agreements and the Schedule of Definitions are amended and
restated as follows:
A. NEW AMENDMENTS AND RESTATEMENT OF PREVIOUS AMENDMENTS TO SPRINT PCS
AGREEMENTS.
MANAGEMENT AGREEMENT
1. VENDOR PURCHASE AGREEMENTS - SOFTWARE FEES [NEW]. Section 1.3 is amended
to read as follows:
Insert: "1.3.1 DISCOUNTED VOLUME-BASED PRICING." before the first
paragraph.
Insert: "1.3.2 SUBSCRIBER AND INFRASTRUCTURE EQUIPMENT." before the
second paragraph.
Insert: "1.3.3 EXCLUSIVE USE." before the third paragraph.
Add a new section 1.3.4 as follows:
1.3.4 SOFTWARE FEES.
(a) Manager acknowledges that (i) it currently has an independent
licensing arrangement for software in effect on the date of this
Addendum that continues so long as Manager is an affiliate of Sprint
PCS, (ii) such independent licensing arrangement does not necessarily
extend to future improvements upon or expansions of such software, or
include any new software developed by or for Sprint PCS in connection
with Program Requirements and (iii) Sprint PCS administers the testing
and implementation of the software into the Service Area Network.
(b) Sprint PCS will use commercially reasonable efforts to obtain
a license providing for the right of Manager to use the software
(currently existing or developed in the future)
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or to use the improvements upon or expansions of the existing or newly
developed software from vendors in connection with a telecommunications
equipment purchase agreement that is not covered by Manager's existing
licenses (collectively for purposes of this section 1.3.4, the "VENDOR
SOFTWARE").
(c) Manager will arrange independently with the vendor to obtain
a license if Sprint PCS cannot reasonably obtain a license for Manager.
Any license obtained by Manager from a vendor must require the Vendor
Software to be tested in Sprint PCS test beds by Sprint PCS and require
Sprint PCS to push the software to the Service Area Network, not the
vendor or Manager, unless otherwise consented to in advance by Sprint
PCS in writing.
(d) Sprint PCS will pay all Software Fees to the vendor if Sprint
PCS obtains a license from the vendor that provides Manager the right
to use the Vendor Software and Sprint PCS reasonably expects Manager to
pay its Allocable Software Fee.
(e) Sprint PCS will notify Manager in writing at least 60 days
before (i) the date of an automatic renewal of or unilateral act of
Sprint PCS to renew or extend an agreement that provides Sprint PCS the
right to use the Vendor Software or (ii) Sprint PCS intends to start
negotiations with a vendor regarding pricing or other material terms
relating to Manager's right to use the Vendor Software (whether for new
software or renewal of an existing license). Manager must notify Sprint
PCS in writing within 30 days after receiving the notice described in
the preceding sentence if Manager wants Sprint PCS to attempt to obtain
a right for Manager to use the Vendor Software. Sprint PCS will renew
or negotiate the agreement as if Manager will not be a user of the
Vendor Software if Manager does not provide notice to Sprint PCS within
the 30-day period. However, Sprint PCS may obtain pricing from the
vendor for the Vendor Software that includes Manager as a user as long
as obtaining the pricing does not obligate Manager to be a user.
Sprint PCS will advise Manager from time to time of the status of
the software negotiations if Manager requested Sprint PCS to obtain or
continue the right for Manager to use the Vendor Software under Sprint
PCS' agreement with the vendor.
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Sprint PCS will give Manager notice of the final pricing for the right
to use the Vendor Software a reasonable time before the expected
execution or renewal of the agreement. Manager may give Sprint PCS
notice by the time set forth in Sprint PCS' notice to Manager (which
time will not be less than 10 business days) that Manager does not
intend to use the Vendor Software through the agreement between Sprint
PCS and the vendor. If Manager does not give this final notice to
Sprint PCS, Manager will be deemed to agree to be a user of the Vendor
Software through the agreement between Sprint PCS and the vendor and
will pay the Allocable Software Fee.
(f) Manager will pay Sprint PCS a fee for Sprint PCS'
administration and implementation of the Vendor Software and Manager's
right to use the Vendor Software ("ALLOCABLE SOFTWARE FEE") within 30
days after receipt of an invoice if Manager has not taken the action
described in the previous paragraphs and Sprint PCS obtains a license
providing for the right of Manager to use the Vendor Software. Sprint
PCS will bill the Manager only after Sprint PCS pays the underlying
Software Fee to the vendor. Sprint PCS will calculate the Allocable
Software Fee as follows:
For each software vendor, multiply (i) the Software Fees
attributable to the Vendor Software and for which Sprint PCS has
obtained for itself, Manager and Other Managers a license or
other right to use by (ii) the quotient of (A) the number of
Customers and Sprint PCS Reseller Customers with an NPA-NXX
assigned to the Service Area that are assigned to a system using
the Vendor Software, as reported in the most recent monthly
report issued by Sprint PCS before the date that Sprint PCS
prepares an Allocable Software Fee invoice, divided by (B) the
number of Customers and Sprint PCS Reseller Customers that are
assigned to a system using the Vendor Software, as reported in
the most recent monthly report issued by Sprint PCS before the
date that Sprint PCS prepares an Allocable Software Fee invoice.
(g) Sprint PCS will include with the invoice for the Allocable
Software Fee a list of the component charges, if determinable. The
Software Fees paid by Sprint PCS to the
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vendor will reflect commercial rates negotiated at arms' length. For
purposes of clarification, the parties acknowledge the vendor may
insist on a comprehensive fee without listing each component, but
rather assert the fee covers all software necessary to operate the
equipment.
(h) Manager will not be charged the Allocable Software Fee for
that Vendor Software if Manager (i) notifies Sprint PCS in writing
within the period allowed that Manager declines to have Sprint PCS
obtain a right for Manager to use the Vendor Software or gives final
notice to Sprint PCS that it does not intend to use the Vendor
Software, (ii) obtains its own license providing for Manager's right to
use the Vendor Software, and (iii) complies with the requirements of
section 1.3.4(i).
(i) Manager will obtain its own license providing for Manager's
right to use the Vendor Software from the vendor if Manager elects not
to have Sprint PCS attempt to obtain a right for Manager to use the
Vendor Software under section 1.3.4(e). Manager will notify Sprint PCS
in writing and deliver to Sprint PCS within 10 days after Manager's
execution of Manager's separate license, a signed document from the
vendor confirming that (A) the vendor has provided Manager a separate
license for the Vendor Software and the term of that license, which
term with appropriate renewal rights, must be at least as long as the
license Sprint PCS has from the vendor, (B) the fees paid by Manager to
the vendor reflect commercial rates negotiated at arms' length, (C) the
Vendor Software covered by Manager's license provides the same usage
and functionality for all of the same network elements as Sprint PCS'
license, and (D) the Vendor Software may be tested in Sprint PCS test
beds by Sprint PCS and will be pushed to the Service Area Network by
Sprint PCS, not the vendor or Manager, unless otherwise consented to in
advance in writing by Sprint PCS.
2. INTERCONNECTION [NEW]. Section 1.4 is amended to read as follows:
If Manager desires to interconnect a portion of the Service Area
Network with another carrier and Sprint PCS can interconnect with that
carrier at a lower rate, then to the extent permitted by applicable laws,
tariffs and agreements, Sprint PCS will arrange for the
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interconnection under its agreements with the carrier and if it does so,
Sprint PCS will bill the interconnection fees to Manager at actual cost.
3. FORECASTING [NEW]. Section 1.6 is amended to read as follows:
1.6 FORECASTING. Manager and Sprint PCS will work cooperatively to
generate mutually acceptable forecasts of important business metrics agreed
upon by Manager and Sprint PCS. The forecasts are for planning purposes
only and do not constitute either party's obligation to meet the quantities
forecast.
4. FINANCING [ADDM I,(Section)5 AND NEW].
(a) Section 1.7 is amended to read as follows:
1.7 FINANCING. The construction and operation of the Service Area
Network requires a substantial financial commitment by Manager. The manner
in which Manager will finance the build-out of the Service Area Network and
provide the necessary working capital to operate the business is described
in detail on Exhibit 1.7. Manager will allow Sprint PCS an opportunity to
review before filing any registration statement or prospectus or any
amendment or supplement thereto and before distributing any offering
memorandum or amendment or supplement thereto, and agrees not to file or
distribute any such document if Sprint PCS reasonably objects in writing on
a timely basis to any portion of the document that refers to Sprint PCS,
its Related Parties, their respective businesses, this agreement or the
Services Agreement.
(b) Section 5(b) of Addendum I is deleted.
(c) Exhibit 1.7 attached to this Addendum supersedes and replaces
Exhibit 1.7 attached to Addendum VI to the Management Agreement.
5. INFORMATION [NEW]. A new section 1.9 is added to the Management
Agreement.
1.9 ACCESS TO INFORMATION.
1.9.1 MANAGER EQUIPMENT. Manager and Sprint PCS will have
unfettered access to, and may monitor, record, or otherwise receive,
information processed through equipment, including switches, in the
Service Area Network, if the access, monitoring, recording or receipt
of the information is accomplished in a manner that:
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(i) Does not unreasonably impede Manager or Sprint PCS from
accessing, monitoring, recording or receiving the information;
(ii) Does not unreasonably encumber Manager's or Sprint PCS'
operations;
(iii) Does not unreasonably threaten the security of the Sprint
PCS Network;
(iv) Does not violate any law regarding the information;
(v) Complies with technical requirements applicable to the
Service Area Network;
(vi) Does not adversely affect any warranty benefiting Manager or
Sprint PCS (e.g., software warranties); and
(vii) With respect to the information processed through Manager's
equipment, including its switches, does not result in a material
breach of any agreement regarding the information (e.g., national
security agreements).
Sprint PCS and Manager will immediately notify the other party
and cooperate to establish new procedures for allowing both Manager and
Sprint PCS to access, monitor, record and receive the information in a
manner that meets the criteria in (i) through (vii) if either Manager
or Sprint PCS reasonably determines that either Manager or Sprint PCS
is accessing, monitoring, recording or receiving the information
described in this section 1.9.1 in a manner that does not meet the
criteria in (i) through (vii). Manager owns the information regarding
the performance of its equipment. Each of Manager and Sprint PCS may
use the information obtained under this section 1.9.1 for any
reasonable business purpose, during and after termination of this
agreement, the Services Agreement and the Trademark License Agreements
provided the use would be in accordance with those agreements if those
agreements were still in effect.
1.9.2 SPRINT PCS INFORMATION. Manager will be entitled to receive
information Sprint PCS accesses, monitors, records or receives
concerning the Service Area Network or the Sprint PCS customers with
NPA-NXXs assigned to Manager's Service Area, subject to Manager's
compliance with CPNI requirements and any other legal requirements
applicable to the confidentiality and safeguarding of such information.
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Sprint PCS will use commercially reasonable efforts to provide
the information in the format requested by Manager at no additional
charge to Manager within 5 Business Days after receipt of a written
request from Manager if the information requested by Manager is
accessed, monitored, recorded, received, or reported by Sprint PCS
specific to Manager for Sprint PCS' own use in the same manner and
format as that requested by Manager.
Sprint PCS will use commercially reasonable efforts to provide
the information in the format requested by Manager within 15 Business
Days after receipt of a written request from Manager if the information
requested by Manager is accessed, monitored, recorded, received, or
reported by Sprint PCS for its own use, but not in the same manner or
format requested by Manager and if Manager agrees to pay or reimburse
Sprint PCS for the costs Sprint PCS reasonably incurs. Sprint PCS will
use commercially reasonable efforts to provide the requested
information as raw data (subject to the conditions in this section
1.9.2 and section 1.9.3) within 15 Business Days after receipt of a
written request from Manager if the information requested by Manager is
accessed, monitored, recorded, received, or reported by Sprint PCS for
its own use, but not in the same manner or format requested by Manager,
and if Sprint PCS cannot provide the information as described in the
preceding sentence.
Sprint PCS has no obligation to access, monitor, record, receive,
or report the information requested by Manager if the information is
not accessed, monitored, recorded, received, or reported by Sprint PCS
for its own use.
Sprint PCS owns the information regarding the Customers. Each of
Manager and Sprint PCS may use the information obtained under this
section 1.9.2 during and after termination of this agreement, the
Services Agreement and the Trademark License Agreements provided the
use would be in accordance with those agreements if those agreements
were still in effect.
1.9.3 LIMITATIONS AND OBLIGATIONS. Sprint PCS does not have to
provide any information requested by Manager that: (i) Manager can
obtain itself in accordance with section 1.9.1 (unless Sprint PCS
already has such information in its possession and has not previously
delivered it to Manager); (ii) is no longer maintained by Sprint PCS;
or (iii) Manager has already received from Sprint PCS or its Related
Parties. Sprint PCS will provide Manager a copy of the then-current
Sprint PCS document retention policy from time to time.
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1.9.4 CONTRACTS. Sprint PCS will disclose to Manager the relevant
terms and conditions of any agreement between Sprint PCS and any third
party (i) with which Manager is required to comply, directly or
indirectly, pursuant to the Management Agreement, the Services
Agreement or any Program Requirement or (ii) from which Manager is
entitled to any benefit; in each case in sufficient detail to enable
Manager to determine the obligations or benefits with which Manager is
required to comply or benefit. Sprint PCS will provide a copy of such
agreement to Manager to the extent permissible by the terms of the
agreement. Sprint PCS will allow Manager or its representatives to
review a copy of the agreement to the extent permissible by the
agreement if the agreement prohibits Sprint PCS from providing Manager
a copy. Sprint PCS will satisfy the requirements of this section 1.9.4
if it chooses to provide a copy of the agreement in electronic form on
a server designated by Sprint PCS.
6. MOST FAVORED NATION [NEW]. A new section 1.10 is added to the Management
Agreement:
1.10 SUBSEQUENT AMENDMENTS TO OTHER MANAGERS' MANAGEMENT AGREEMENTS AND
SERVICES AGREEMENTS. Manager has the right to amend the terms in its
Management Agreement and Services Agreement as described in this section
1.10 if during the period beginning on the date of this Addendum and ending
December 31, 2006, any of the terms of a Similarly Situated Manager's
Management Agreement or Services Agreement are amended to be more favorable
to such Similarly Situated Manager than the terms of Manager's Management
Agreement or Services Agreement are to Manager, subject to the following:
(a) All Alamosa Managers must elect to accept all, but not less
than all, of the terms of the Similarly Situated Manager's Management
Agreement and Services Agreement (including accepting existing terms
that relate to the changes or terms that were previously changed and
not previously accepted by Manager but which remain a part of the
latest version of the Similarly Situated Manager's agreement)
(collectively, "OVERALL CHANGES"); and
(b) No changes will be made that are made for a Similarly
Situated Manager if such changes are either (i) made solely because the
Similarly Situated Manager owns the spectrum on which its network
operates, unless the Similarly Situated Manager acquired such spectrum
from Sprint PCS or its Related Parties after September 1, 2003, (ii)
compelled by a law, rule or regulation that applies to the Similarly
Situated Manager, but not to Manager, or (iii) build-out plan changes.
Sprint PCS will prepare and deliver to Manager either a redacted
addendum containing the cumulative changes made to the Similarly
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Situated Manager's agreements in all of its addenda or redacted copies of
the Similarly Situated Manager's amended and restated Management Agreement,
Services Agreement and Trademark License Agreements within 10 business days
after the effective date of the amendment or other instrument containing
such changes. Manager then has 30 days to notify Sprint PCS that Manager
wants the Overall Changes.
No changes will be made in the agreements between Manager and Sprint
PCS if Manager does not notify Sprint PCS in the time specified and Manager
will be deemed to have waived its rights under this section 1.10 with
respect to the changes contained in the addendum or the agreements
presented.
Sprint PCS will prepare, execute and deliver to all Alamosa Managers
addenda reflecting the Overall Changes in the redacted addendum or
agreements if Manager notifies Sprint PCS within the time specified. The
new addenda will have the same effective date as the addendum or the
restated Management Agreement, Services Agreement and Trademark License
Agreements between Sprint PCS and the Similarly Situated Manager that gave
rise to the new addendum.
No changes will be made in the agreements between the Alamosa Managers
and Sprint PCS if any Alamosa Manager does not execute and return the
signed addendum within 30 days after receipt of the signed addendum and
Manager will be deemed to have waived its rights under this section 1.10
with respect to the changes contained in the addendum presented; except
that if Manager and Sprint PCS disagree as to whether the terms of the
signed addendum accurately reflect the Overall Changes, then the parties
will submit the issue to binding arbitration in accordance with section
14.2, excluding the escalation process set forth in section 14.2. If the
arbiter rules in favor of Manager, then Sprint PCS will make changes to the
signed addendum as are necessary to reflect the arbiter's ruling and submit
the revised signed addendum to Manager within 10 days after receipt of the
arbiter's ruling. If the arbiter rules in favor of Sprint PCS, then Manager
will execute the signed addendum as proffered to Manager within 10 days
after Manager's receipt of the arbiter's ruling.
The parties acknowledge that Sprint PCS can disclose to Manager who the
Similarly Situated Manager is that gave rise to the proposed addendum only
if the Similarly Situated Manager agrees to the disclosure.
7. MODIFICATION OF BUILD-OUT PLAN [ADDM VIII, (SECTION)2]. The Exhibit 2.1
Build-Out Plan Table is superseded and replaced by the Exhibit 2.1 Build-Out
Plan Table attached to Addendum VIII.
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8. EXCLUSIVITY OF SERVICE AREA [ADDM V,(SECTION)5]. In section 2.3 and the
Schedule of Definitions, the phrase "wireless mobility communications network"
is replaced by the phrase "Wireless Mobility Communications Network".
9. COVERAGE ENHANCEMENT [ADDM I,(SECTION)1 REVISED BY THIS ADDENDUM].
Section 2.5 is replaced by the following language:
2.5 MANAGER'S RIGHT OF FIRST REFUSAL FOR NEW COVERAGE BUILD-OUT. Sprint
PCS grants to Manager the right of first refusal to build-out New Coverage.
Sprint PCS will give to Manager a written notice of a New Coverage within
the Service Area that Sprint PCS decides should be built-out. Manager must
communicate to Sprint PCS within 90 days after receipt of the notice
whether it will build-out the New Coverage.
If Manager decides to build-out the New Coverage then Manager and
Sprint PCS will diligently negotiate and execute an amendment to the
Build-out Plan and proceed as set forth in sections 2.1 and 2.2. The
amendment Build-out Plan will contain critical milestones that provide
Manager a commercially reasonable period in which to implement coverage in
the New Coverage. In determining what constitutes a "commercially
reasonable period" as used in this paragraph, the parties will consider
several factors, including local zoning processes and other legal
requirements, weather conditions, equipment delivery schedules, the need to
arrange additional financing, and other construction already in progress by
Manager. Manager will construct and operate the network in the New Coverage
in accordance with the terms of this agreement.
If Manager (i) does not communicate to Sprint PCS within such 90-day
period that it will build out the New Coverage, (ii) fails to agree with
Sprint PCS upon the amended Build-Out Plan, or (iii) fails to build-out the
New Coverage in accordance with the amended Build-Out Plan, then Sprint PCS
shall be entitled to (A) build-out the New Coverage itself or allow a
Sprint PCS Related Party to do so, or (B) offer third parties (including
Other Managers) the right to build-out the New Coverage on terms and
conditions that are no more favorable than those that were offered to and
rejected by Manager. If (x) neither Sprint PCS, a Sprint PCS Related Party,
nor any third party (with respect to such third party, on terms and
conditions that are no more favorable than those that were offered to and
rejected by Manager) commits to build-out such New Coverage within 150 days
of the original communication to Manager with respect thereto, or (y) more
favorable terms and conditions than those that were offered to and rejected
by Manager are offered to any third party to build-out the New Coverage,
then any build-out of such New Coverage shall again be subject to Manager's
right of first refusal (and, if applicable, on such more favorable terms
and conditions).
Sprint PCS has the right, in a New Coverage that it constructs or that
is constructed by a third party, to manage the network, allow a Sprint
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PCS Related Party to manage the network, or hire a manager to operate the
network in the New Coverage. Any New Coverage that Sprint PCS or a third
party builds out is deemed removed from the Service Area and the Service
Area Exhibit is deemed amended to reflect the change in the Service Area.
If Manager does not exercise its right of first refusal with respect to a
New Coverage, Manager's right of first refusal does not terminate with
respect to the remainder of the Service Area.
10. IXC RATES [NEW]. Section 6 of Addendum I is deleted. Additionally,
section 3.4 of the Management Agreement is amended to read as follows:
3.4 IXC SERVICES.
3.4.1. CUSTOMER LONG DISTANCE. Sprint PCS and Manager will from time to
time mutually define local calling areas in the Service Areas of Manager to
be used by Sprint PCS and Manager in determining when a customer will be
billed for a "long distance call" under the applicable rate plan of the
Customer. The parties acknowledge that these local calling areas (i) may
change in geographic scope in response to competitive pressures or
perceived market opportunities, and (ii) may not be able to be changed
because of regulatory, industry, or system limitations. The local calling
areas will not be used by the parties to determine "long distance telephony
services" under section 3.4.2. If the parties cannot agree on the extent of
the local calling area they will resolve the matter through the dispute
resolution process in section 14.
3.4.2. LONG DISTANCE SERVICES
(a) Required purchase. Manager must obtain (i) long-distance telephony
services through Sprint PCS or its Related Parties to provide long-distance
service to users of the Sprint PCS Network and (ii) telephony services
through Sprint PCS or its Related Parties to connect the Service Area
Network with the national platforms used by Sprint PCS to provide services
to Manager under this agreement or the Services Agreement. The term "long
distance telephony service" means any inter-LATA call for purposes of this
section 3.4.2 as it relates to long-distance telephony services provided to
users of the Sprint PCS Network.
(b) Pricing and procedure. Sprint PCS will purchase long-distance
telephony services used in the Sprint PCS Network from Sprint
Communications Company L.P. or its Related Parties ("SCCLP") for Sprint
PCS, Manager and Other Managers. Sprint PCS will purchase the long-distance
telephony services at a price at least as favorable to Sprint PCS, Manager,
and the Other Managers (considering Sprint PCS, Manager and the Other
Managers as a single purchaser) as the best prices offered by
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SCCLP to any wholesale customer of SCCLP in similar situations when taking
into account all relevant factors (e.g., volume, peak/off-peak usage,
length of commitment). Sprint PCS will pay the invoice from SCCLP, except
for items directly billed by SCCLP under section 3.4.2(c). Sprint PCS will
bill to Manager as an activity settled separately under the Services
Agreement the portion of the fees billed to Sprint PCS that relate to
Manager's operations and the activity of all Customers and Sprint PCS
Reseller Customers in the Service Area, except for items directly billed by
SCCLP under section 3.4.2(c). Sprint PCS and SCCLP will clarify pricing if
the PCS Group is no longer a separately tracked group covered by a tracking
stock of Sprint Corporation.
(c) Call routing. Manager, or the Alamosa Managers acting as a single
purchaser, may purchase private line capacity (or other forms of capacity)
from SCCLP for inter-LATA calls to the extent that such capacity can be
obtained on terms more favorable to Manager (or the Alamosa Managers as a
single purchaser). SCCLP will sell that capacity to Manager at the best
price offered by SCCLP to third parties in similar situations when taking
into account all relevant factors. SCCLP will directly bill Manager for any
purchase of capacity under this section 3.4.2(c). The terms of section 1.3
do not apply to purchases of capacity in this section 3.4.2(c).
(d) Pre-existing agreement. If before the date Addendum IX to this
agreement is signed, Manager is bound by an agreement for long distance
services or an agreement for private line service and the agreement was not
made in anticipation of this agreement or Addendum IX, then the
requirements of this section 3.4.2 do not apply during the term of the
other agreement. If the other agreement terminates for any reason, then the
requirements of this section 3.4.2 do apply.
(e) Resale. Manager may not resell the long-distance telephony services
acquired under this section 3.4.2. For purposes of clarification, resale
under this section 3.4.2(e) includes Manager selling minutes to carriers
for ultimate resale to end users under a brand other than "Sprint" or
selling minutes to end users under a brand other than "Sprint". Manager may
engage in the following activities (i.e., these activities are not treated
as resale of long-distance telephony services):
(1) the transport of long-distance calls for Customers under
section 3.4.2(a),
(2) the transport of long-distance calls for resellers under
section 3.5, and
14
(3) the transport of long-distance calls for roaming under
section 4.3.
(f) Sprint Rural Alliance Program. The rights and obligations of
Manager, if any, for the provision of long-distance telephony services for
Sprint Rural Alliance program participants will be set forth in a separate
agreement.
11. VOLUNTARY RESALE OF PRODUCTS AND SERVICES [ADDM I, (SECTION)4]. The
second sentence of the second paragraph of section 3.5.2 is amended to read as
follows: "If Manager wants handsets of subscribers of resellers with NPA-NXXs of
Manager to be activated, Manager must agree to comply with the terms of the
program, including its pricing provisions."
12. INTRA-LATA CALLS AND BACKHAUL SERVICES [NEW]. Section 3.7 is amended to
read as follows:
3.7 INTRA-LATA CALLS AND BACKHAUL SERVICES. Manager, or the Alamosa
Managers acting as a single purchaser, may purchase capacity (including
private line capacity) from SCCLP for intra-LATA calls and backhaul
services. SCCLP will sell that capacity to Manager at the best price
offered by SCCLP to third parties in similar situations when taking into
account all relevant factors.
Manager will offer to Sprint PCS or one of its Related Parties the
right to make to Manager the last offer to provide capacity for intra-LATA
calls and backhaul services for the Service Area Network if (i) Manager
decides to use third parties for intra-LATA calls and backhaul services
rather than self-provisioning the capacity or purchasing the capacity from
Related Parties of Manager and (ii) Sprint PCS or one of its Related
Parties has provided evidence to Manager that SCCLP or one of its Related
Parties has facilities to provide the capacity requested. Manager will
deliver to Sprint PCS the terms under which the third party will provide
the capacity. Sprint PCS or one of its Related Parties will have a
reasonable time to respond to Manager's request for last offer to provide
pricing for capacity for intra-LATA calls and backhaul, which will be no
greater than 5 Business Days after receipt of the request for the pricing
and the third party's terms from Manager. Manager will acquire capacity for
intra-LATA calls and backhaul services from Sprint PCS or one of its
Related Parties if Sprint PCS or one of its Related Parties offers Manager
pricing for intra-LATA calls and backhaul services for the Service Area
Network that matches or is lower than the pricing offered by the third
party. For purposes of this section 3.7, the term "backhaul" means the
provision of services from a cell site of Manager to the corresponding
switch associated with the cell site.
15
If Manager has an agreement for these services in effect as of the date
Addendum IX is signed and the agreement was not made in anticipation of
this agreement or Addendum IX, then the requirements of this section 3.7 do
not apply during the term of the other agreement. If the other agreement
terminates for any reason, then the requirements of this section 3.7 do
apply.
13. SPRINT PCS ROAMING AND INTER SERVICE AREA PROGRAM REQUIREMENTS [NEW].
The second paragraph of section 4.3 is amended to read as follows:
Section 10.4.1 sets forth the settlement process that distributes
between the members making up the Sprint PCS Network (i.e., Sprint PCS,
Manager and all Other Managers) a fee for use of the Sprint PCS Network and
the Service Area Network (the "INTER SERVICE AREA FEE").
14. CHANGES TO PROGRAM REQUIREMENTS [NEW].
(a) The first sentence of section 9.2(e) is amended to read as follows:
Manager must implement any changes in the Program Requirements within a
commercially reasonable period of time unless otherwise consented to by
Sprint PCS, subject to the terms of section 9.3.
(b) Section 9.3 is amended to read as follows:
9.3 MANAGER'S RIGHTS REGARDING CHANGES TO PROGRAM REQUIREMENTS.
9.3.1 PARAMETERS FOR REQUIRED PROGRAM REQUIREMENT IMPLEMENTATION.
Manager has the right to decline to implement any new Program Requirement
or any change to any existing Program Requirement (a "PROGRAM REQUIREMENT
CHANGE") if Manager determines that any such Program Requirement Change,
other than a change involving Sprint PCS National or Regional Distribution
Program Requirements, will have an adverse impact on Manager that meets or
exceeds the parameters set forth below in subparagraphs (a) through (d).
For purposes of this section 9.3 a Program Requirement Change will include
any change in any "guidelines," "policies," "standards" or "specifications"
proposed by Sprint PCS under this agreement, the Services Agreement or
either of the Trademark License Agreements, and the exercise by Sprint PCS
of any unilateral right under those agreements, except changes to the
Trademark Usage Guidelines, the Marketing Communications Guidelines, or the
definition of Sprint PCS Products and Services (other than the pricing of
those products and services, i.e. pricing is a Program Requirement Change).
If Manager determines to decline to implement any Program Requirement
Change, other than a change involving a national distribution
16
program, then Manager must, within 10 days after Sprint PCS provides
Manager with notice of the Program Requirement Change, give Sprint PCS (i)
a written assessment of the impact of the Program Requirement Change on
Manager using the parameters set forth in subparagraphs (a) through (d)
below, and (ii) written notice that Manager declines to implement the
Program Requirement Change. Manager may, without being deemed in default of
this agreement, decline to implement any Program Requirement Change that
will:
(a) individually cause the combined peak negative cash flow of the
Alamosa Managers to be an amount greater than 3% of Alamosa Holdings,
Inc.'s Enterprise Value; or
(b) when combined with the original assessments made in accordance with
section 9.3.1(a) of all other Program Requirement changes that Sprint PCS
announced and the Alamosa Managers agreed to implement, both within the
preceding 12 calendar months, cause the combined cumulative peak negative
cash flow of the Alamosa Managers to be an amount greater than 5% of
Alamosa Holdings, Inc.'s Enterprise Value; or
(c) individually cause a decrease in the forecasted 5-year discounted
cash flow of the Alamosa Managers (at the Alamosa Managers' appropriate
discount rate) of more than 3% on a combined net present value basis; or
(d) when combined with the original assessments made in accordance with
section 9.3.1(c) of all other Program Requirement changes that Sprint PCS
announced and Manager agreed to implement, both within the preceding 12
calendar months, cause a decrease in the forecasted 5-year discounted cash
flow of the Alamosa Managers (at the Alamosa Managers' appropriate discount
rate) of more than 5% on a combined net present value basis.
Manager may discuss with Sprint PCS in the manner described in section
9.7(c) any change that does not meet or exceed the parameters set forth in
this section 9.3.1, except any change involving Sprint PCS National or
Regional Distribution Program Requirements.
9.3.2. DISAGREEMENT WITH ASSUMPTIONS OR METHODOLOGY. Sprint PCS must
notify Manager of any disagreement with Manager's assumptions or
methodology within 10 days after its receipt of Manager's assessment under
section 9.3.1. Manager will not be required to implement the Program
Requirement Change if Sprint PCS fails to notify Manager of any
disagreement within such 10-day period unless Sprint PCS elects to require
such compliance under section 9.3.3 below. Either party may escalate the
review of the assumptions and methodology
17
underlying the assessment to the parties' respective Chief Financial
Officers if Sprint PCS disagrees with Manager's assessment and the parties
are unable to agree on the assumptions and methodology within 20 days after
Sprint PCS notifies Manager of the disagreement.
The parties will mutually select an independent investment banker in
the wireless telecommunications industry ("INVESTMENT BANKER") to determine
whether the implementation of the Program Requirement Change will exceed
one of the parameters if Sprint PCS and Manager are unable to agree on the
assumptions and methodology to perform the calculations within 30 days
after Sprint PCS notifies Manager of the disagreement. The American
Arbitration Association will select the Investment Banker if the parties do
not select the Investment Banker within 50 days after Sprint PCS notifies
Manager of the disagreement. Sprint PCS and Manager will cooperate fully
and provide all information reasonably requested by the Investment Banker;
except that any Investment Banker selected by the American Arbitration
Association, and its investment bank, must have no current engagement with
either Manager or Sprint PCS and must not have been engaged by either such
party within the 12 calendar months preceding the engagement under this
section. A business relationship between Manager or Sprint PCS and a
commercial bank or other organization affiliated with an investment bank
will not disqualify the investment bank. Sprint PCS and Manager will
cooperate fully and provide all information reasonably requested by the
Investment Banker. The Investment Banker will have 20 days from the date of
engagement to make its decision.
Manager will pay any Investment Banker's fees and implement the Program
Requirement Change if the parties agree or the Investment Banker determines
that implementing the Program Requirement Change will not exceed any of the
parameters described in section 9.3.1.
9.3.3 ONE OR MORE PARAMETERS EXCEEDED. Sprint PCS will pay the
Investment Banker's fees if the parties agree or the Investment Banker
determines that implementing the Program Requirement Change will exceed at
least one of the parameters described in section 9.3.1. Sprint PCS may
require Manager to implement the Program Requirement Change whether the
parties agree or disagree or the Investment Banker determines that
implementing the Program Requirement Change will exceed at least one of the
parameters described in section 9.3.1, if Sprint PCS agrees to compensate
Manager the amount necessary to prevent Manager from exceeding the
parameters set forth in section 9.3.1.
9.3.4 CHANGES WITH RESPECT TO PRICING PLANS AND ROAMING PROGRAM
REQUIREMENTS. Manager will implement a Program Requirement Change in the
manner requested by Sprint PCS that
18
(i) relates to a pricing plan under section 4.4 or roaming
program and
(ii) Sprint PCS reasonably determines must be implemented on an
immediate or expedited basis to respond to competitive market forces,
notwithstanding Manager's determination that implementation of the Program
Requirement Change will have an adverse impact on Manager that meets or
exceeds the parameters set forth in section 9.3.1. Manager's implementation
of the Program Requirement Change will not adversely affect Manager's right
to object to the implementation of the Program Requirement Change. Manager
will continue to comply with the Program Requirement Change if the parties
agree or the Investment Banker determines that implementing the Program
Requirement Change will not exceed any of the parameters described in
section 9.3.1. If Sprint PCS does not successfully challenge Manager's
assessment of the adverse impact of the Program Requirement Change on
Manager in accordance with section 9.3.2, Sprint PCS can require Manager
either to (i) continue to comply with the Program Requirement Change and
compensate Manager in the amount necessary to reimburse Manager for any
reasonable costs, expenses or losses that Manager incurred as a result of
its implementation of the Program Requirement Change net of any benefit
received by Manager, to the extent the costs, expenses and losses net of
the benefits exceed the parameters set forth in section 9.3.1 or (ii)
terminate its continued compliance with the Program Requirement Change and
compensate Manager in the amount necessary to reimburse Manager for any
reasonable costs, expenses or losses that Manager incurred as a result of
its implementation of the Program Requirement Change net of any benefit
received by Manager. Manager cannot terminate its continued compliance if
Sprint PCS elects to require Manager's continued compliance with the
Program Requirement Change under section 9.3.3 above.
(c) A new section 9.7 is added to the Management Agreement:
9.7 MANDATORY REQUIREMENTS; UNILATERAL CHANGES.
(a) Any "guidelines," "policies," "standards" or "specifications"
previously issued by Sprint PCS are mandatory requirements with which
Manager, the Other Managers and Sprint PCS must comply (subject to Sprint
PCS' right to grant waivers as provided in Article 9 of this agreement),
unless otherwise identified by Sprint PCS within 120 days after the date of
this Addendum.
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(b) Any changes to or new "guidelines," "policies," "standards" or
"specifications" proposed by Sprint PCS under this agreement, the Services
Agreement or either of the Trademark License Agreements are mandatory
requirements with which Manager, the Other Managers and Sprint PCS must
comply (subject to Sprint PCS' right to grant waivers as provided in
Article 9 of this agreement). Sprint PCS will when issuing them reference
the applicable section of this agreement, the Services Agreement, the
Trademark License Agreements and if applicable, the Program Requirement to
which they relate.
(c) Sprint PCS and Manager will in good faith attempt to mutually agree
on how to mitigate the adverse economic impact on Manager of the exercise
of any unilateral right of Sprint PCS under this agreement, the Services
Agreement and either Trademark License Agreement to the extent Manager
believes such change will have a significant adverse economic impact on
Manager's operations, except with respect to changes involving Sprint PCS
National or Regional Distribution Program Requirements. For purposes of
clarification, the parties intend the preceding sentence to obligate them
to a robust discussion and open dialogue but understand the discussion and
dialogue may not lead to any particular solution of the issues raised by
Manager or Sprint PCS. By way of illustration, under the second preceding
sentence if Manager believed that the exercise of the unilateral right to
change the Trademark Usage Guidelines or the designation of Sprint PCS
Products and Services had an adverse economic impact on Manager, then
Manager and Sprint PCS will in good faith attempt to mutually agree on how
to mitigate the adverse impact on Manager.
(d) A new section 9.8 is added to the Management Agreement.
9.8 BREACH FOR FAILURE TO IMPLEMENT PROGRAM REQUIREMENT.
Manager will be in material breach of a material term and Sprint PCS
may exercise its rights under section 11 if Manager declines to implement a
Program Requirement when required to do so under this agreement.
15. FEES [NEW]. (a) Article 10 of the Management Agreement is amended to
read as follows:
10. FEES
10.1 GENERAL. Sprint PCS and Manager will pay to each other the fees
and apply the credits in the manner described in this section 10.
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Many of the definitions for the fees in section 10.2 are found in section
10.3.
10.2 FEES.
10.2.1 FEE BASED ON BILLED REVENUE. Sprint PCS will pay to
Manager the Fee Based on Billed Revenue as determined in this section
10.2.1.
"BILLED REVENUE" is all customer account activity (e.g., all
activity billed, attributed or otherwise reflected in the customer account
but not including Customer Credits or similar adjustments) during the
calendar month for which the fees and payments are being calculated (the
"BILLED MONTH") for Sprint PCS Products and Services related to all Sprint
PCS customer accounts within a customer service area ("CSA") assigned to
the Service Area, except Outbound Roaming Fees, amounts handled separately
in this section 10 (including the amounts in sections 10.2.3 through
10.2.5, 10.4 and 10.8) and amounts collected from customers and paid to
governmental or regulatory authorities (e.g., Customer Taxes, USF Charges)
(these Sprint PCS customer accounts being "MANAGER ACCOUNTS"). For purposes
of clarification, the parties have in place procedures to assign customers
to CSAs. Billed Revenue does not include new activity billed to the
Customer solely to recover costs incurred by Sprint PCS, Manager or both;
Manager and Sprint PCS will share such revenue in proportion to the costs
they incur.
Sprint PCS will determine the amount of credits applied to
Manager Accounts during the Billed Month ("CUSTOMER CREDITS").
"NET BILLED REVENUE" for a Billed Month is the amount of the
Billed Revenue less the Customer Credits.
The "FEE BASED ON BILLED REVENUE" for a Billed Month is equal to
92% of (a) Net Billed Revenue, less (b) the Allocated Write-offs for Net
Billed Revenue.
10.2.2 OUTBOUND ROAMING FEES. Sprint PCS will pay to Manager a
fee equal to the amount of Outbound Roaming Fees that Sprint PCS or its
Related Parties bills to Manager Accounts, less the Allocated Write-offs
for Outbound Roaming Fees. For purposes of clarification, Sprint PCS will
settle separately with Manager the direct cost of providing the capability
for the Outbound Roaming, including any amounts payable to the carrier that
handled the roaming call and the clearinghouse operator.
10.2.3 PHASE II E911 SURCHARGES. Sprint PCS will pay to Manager a
fee equal to a portion of the E911 Surcharges (attributable to
21
incremental costs for Phase II E911, including but not limited to related
handset costs, routing costs, implementation costs, trunks and testing
costs, and anticipated write-offs for bad debt) billed during the Billed
Month to Customers with an NPA-NXX assigned to the Service Area, less the
Allocated Write-offs for that portion of E911 Surcharges in the Billed
Month. The portion of the billed amount attributed to Manager will be based
on Manager's proportional cost (as compared to Sprint PCS' proportional
cost) to comply with Phase II of the E911 requirements. The rate billed to
Customers related to Phase II E911 and the portion payable to Manager will
be determined from time to time by Sprint PCS to the extent Manager
believes such changes will have a significant economic impact on Manager's
operations.
10.2.4 CUSTOMER EQUIPMENT CREDITS. Sprint PCS will apply as a
credit to any other fees under this section 10.2 owing by Sprint PCS to
Manager an amount equal to the amount of the Customer Equipment Credits
less the Allocated Write-offs for Customer Equipment Credits.
10.2.5 WRITE-OFFS FOR CUSTOMER EQUIPMENT CHARGES. Sprint PCS will
apply as a credit to any other fees under this section 10.2 owing by Sprint
PCS to Manager an amount equal to the amount of the Allocated Write-offs
for Customer Equipment Charges.
10.3 DEFINITIONS USED IN FEE CALCULATIONS
10.3.1 WRITE-OFFS. Sprint PCS will determine the amounts written
off (the "WRITE-OFFS") in the Sprint PCS billing system during the Billed
Month relating to Manager Accounts.
10.3.2 BILLED COMPONENTS. Each of the following eight amounts is
referred to as a "BILLED COMPONENT" and collectively they are referred to
as the "BILLED COMPONENTS".
10.3.2.1 Net Billed Revenue. The amount determined as
described in section 10.2.1.
10.3.2.2 Customer Equipment Credits. The reductions of
amounts billed to Manager Accounts related to the sale of handsets and
handset accessories from Sprint PCS inventory are referred to as "CUSTOMER
EQUIPMENT CREDITS". This is a negative amount that reduces the Amount
Billed (Net of Credits).
10.3.2.3 Outbound Roaming Fees. The amounts that Sprint PCS
or its Related Parties bills to Manager Accounts for calls
22
placed on a non-Sprint PCS Network are referred to as "OUTBOUND ROAMING
FEES".
10.3.2.4 Customer Taxes. The amounts that Sprint PCS bills
to Manager Accounts for taxes, including, without limitation, federal,
state, and local sales, use, gross and excise tax (collectively, "CUSTOMER
TAXES").
10.3.2.5 Equipment Replacement Program Fees. The amounts
that Sprint PCS bills to Manager Accounts for participating in an equipment
replacement program are referred to as "EQUIPMENT REPLACEMENT PROGRAM
FEES".
10.3.2.6 Customer Equipment Charges. The amounts that Sprint
PCS bills to Manager Accounts for subscriber equipment and accessories sold
or leased are referred to as "CUSTOMER EQUIPMENT CHARGES".
10.3.2.7 E911 Surcharges. The amounts that Sprint PCS bills
to Manager Accounts to recover all costs related to Phase II E911
functionality are referred to as "E911 SURCHARGES".
10.3.2.8 USF Charges. The amounts that Sprint PCS bills to
Manager Accounts relating to Universal Service Funds are referred to as
"USF CHARGES".
10.3.3 AMOUNT BILLED (NET OF CUSTOMER CREDITS). The "AMOUNT
BILLED (NET OF CUSTOMER CREDITS)" for a Billed Month is equal to the sum of
the Billed Components.
10.3.4 THE ALLOCATED WRITE-OFFS. The "ALLOCATED WRITE-OFFS" for
all or a portion of a Billed Component in a Billed Month is the Write-offs
for the Billed Month times the amount of the Billed Component (or portion
thereof) divided by the Amount Billed (Net of Customer Credits).
10.4 OTHER FEES AND PAYMENTS. Sprint PCS and Manager will pay to
each other the fees and payments described below:
10.4.1 INTER SERVICE AREA FEES.
10.4.1.1 Inter Service Area Fee Paid. Manager will pay to
Sprint PCS an Inter Service Area Fee as set out in this section 10.4.1 for
each billed minute of use that a subscriber with an NPA-NXX assigned to the
Service Area uses a portion of the Sprint PCS Network other than the
Service Area Network. Sprint PCS will pay to Manager an
23
Inter Service Area Fee for each billed minute of use that a Sprint PCS
customer whose NPA-NXX is not assigned to the Service Area Network uses the
Service Area Network.
Sprint PCS will not be obligated to pay Manager those Inter
Service Area Fees not received by Sprint PCS from an Other Manager who is a
debtor in a bankruptcy proceeding with respect to Inter Service Area Fees
that Sprint PCS owes Manager because of CSAs assigned to such Other
Manager's Service Area traveling in the Service Area. For clarification
purposes, Sprint PCS does not have to advance the Inter Service Area Fees
for the Other Manager who is involved in the bankruptcy proceeding to
Manager, even if the Other Manager is late or never pays the Inter Service
Area Fees. Manager bears the risk of loss of the Other Manager who is
involved in the bankruptcy proceeding not paying the Inter Service Area
Fees to Sprint PCS. Manager acknowledges that if the manner in which the
CSAs are assigned changes because of changes in the manner in which the
NPA-NXX is utilized, the manner in which the Inter Service Area Fees, if
any, will be calculated might be changed.
10.4.1.2 Voice and 2G Data Rate. The amount of the Inter
Service Area Voice and 2G Data Fee will be as follows:
(a) From September 1, 2003 to December 31, 2005, the Inter
Service Area Voice and 2G Data Fee for each billed minute of use that a
Customer or Sprint PCS Reseller Customer uses an Away Network will be
$0.058.
(b) From January 1, 2006 until the end of the Term of the
agreement, the Inter Service Area Voice and 2G Data Fee for each billed
minute of use that a Customer or Sprint PCS Reseller Customer uses an
Away Network will be an amount equal to 90% of retail yield for Voice
and 2G Data Usage.
10.4.1.3 3G Data Rate. The amount of the Inter Service Area
3G Data Fee will be as follows:
(a) From September 1, 2003 to December 31, 2005, the Inter
Service Area 3G Data Fee for each kilobit of use that a Customer or
Sprint PCS Reseller Customer uses an Away Network will be $0.0014
("INITIAL 3G DATA FEE PERIOD").
(b) The parties will engage in the following pricing process
to set the Inter Service Area 3G Data Fee for each kilobit of use that
a Customer or Sprint PCS Reseller Customer uses an Away Network after
the Initial 3G Data Fee Period ends. The Inter Service Area 3G Data Fee
will be based on an appropriate discount from the retail yield for 3G
Data Usage to be
24
negotiated before December 31, 2005. Each subsequent fee period will
last three years with the second pricing period beginning on January 1,
z2006 and ending on December 31, 2008.
(i) Sprint PCS will give Manager an Inter Service Area
3G Data Fee proposal by March 31 of the final year of the then current
pricing period. Manager's representative and the Sprint PCS
representative will begin discussions regarding the proposed schedule
of fees within 20 days after Manager receives the proposed schedule of
fees from Sprint Spectrum.
(ii) Manager may escalate the discussion to the Chief
Financial Officer of Sprint PCS or Sprint PCS may escalate the
discussion to Manager's Chief Executive Officer or Chief Financial
Officer if the parties do not agree on a new schedule of fees within 30
days after the discussions begin.
(iii) If the parties cannot agree on a new schedule of
fees within 20 days after a party escalates the discussion, then
Manager may either agree to the fees set forth in the Inter Service
Area 3G Data Fee proposal or submit the determination of the Inter
Service Area 3G Data Fee to binding arbitration in accordance with
section 14.2, excluding the escalation process set forth in section
14.2.
(iv) If Manager submits the matter to arbitration the
fees proposed by Sprint PCS will apply starting after December 31 of
the first year of the appropriate period as described in section
10.4.1.4 and will continue in effect unless modified by the final
decision of the arbitrator. If the arbitrator imposes a fee different
than the ones in effect the new fees will be applied as if in effect
after December 31 of the first year of the appropriate period as
described in section 10.4.1.4 and if on application of the new fees one
party owes the other party any amount after taking into account
payments already made by the parties then the owing party will pay the
other party within 30 days of the date of the final arbitration order.
10.4.1.4 Rate Changes - Effective Date. All rate changes
related to Inter Service Area Fees will be applied to all activity in a
bill cycle regardless of when the activity occurred, if the bill cycle ends
after the effective date of the rate change.
10.4.1.5 Long Distance. The long distance rates associated
with the Inter Service Area usage will be equal to the actual wholesale
transport and terminating costs associated with the originating
25
and terminating locations. The rates are then applied to cumulative usage
at a BID level for settlement purposes.
10.4.2 INTERCONNECT FEES. Manager will pay to Sprint PCS (or
to other carriers as appropriate) monthly the interconnect fees, if any, as
provided under section 1.4.
10.4.3 TERMINATING AND ORIGINATING ACCESS FEE. If Sprint PCS
collects from an IXC terminating or originating access fees that are not
subject to refund or dispute, then Sprint PCS will pay Manager 92% of the
amount collected (but it will not be Billed Revenue). Manager will refund
to Sprint PCS any amounts Sprint PCS pays or has paid to Manager for access
fees if Sprint PCS is required to refund that access fee to an IXC
(including a Sprint Corporation Related Party). For purposes of
clarification, Sprint Corporation's Related Parties are obligated to pay
terminating access to Sprint PCS only if Sprint Corporation's major
competitors have to pay terminating or originating access to Sprint PCS. At
the present time, none of the major competitors pay terminating access to
Sprint PCS. The ability of wireless carriers to collect access fees is
currently subject to legal challenge. The parties acknowledge that Sprint
PCS has limited ability to require IXCs to pay access fees.
10.4.4 REIMBURSEMENTS FOR MISTAKEN PAYMENTS. If one party
mistakenly pays an amount that the other party is obligated to pay then the
other party will reimburse the paying party.
10.5 TAXES AND PAYMENTS TO THE GOVERNMENT. Manager will pay or
reimburse Sprint PCS for any sales, use, gross receipts or similar tax,
administrative fee, telecommunications fee or surcharge for taxes or fees levied
by a governmental authority on the fees and charges payable by Sprint PCS to
Manager.
Manager will report all taxable property to the appropriate taxing
authority for ad valorem tax purposes. Manager will pay as and when due all
taxes, assessments, liens, encumbrances, levies, and other charges against the
real estate and personal property owned by Manager or used by Manager in
fulfilling its obligations under this agreement.
Manager is responsible for paying all sales, use, or similar taxes on
the purchase and use of its equipment, advertising, and other goods or services
in connection with this agreement.
Sprint PCS will be solely responsible for remitting to government
agencies and/or their designees any and all fees or other amounts owed as a
result of the services provided to the Customers under the Management Agreement.
As a consequence of this responsibility, Sprint PCS is entitled to 100% of any
26
amounts received by Manager, Sprint PCS or their Related Parties from Customers
(including Sprint PCS customers whose NPA-NXX is assigned to the Service Area)
relating to such fees.
10.6 UNIVERSAL SERVICE FUNDS.
10.6.1 PAID BY GOVERNMENT. Manager is entitled to 92% of any
federal and state subsidy funds (the "SUBSIDY FUNDS") (and Sprint PCS is
entitled to the remainder of the Subsidy Funds), including Universal
Service Funds, received by Manager or Sprint PCS from government
disbursements based on customers with mailing addresses located in the
Service Area and with NPA-NXXs assigned to the Service Area, or such other
method then in effect under the rules of the FCC, USAC or other federal or
state administrator. For purposes of clarity, Universal Service Funds
provide support payments to Eligible Telecommunications Carriers ("ETC")
serving in high cost areas and providing services to low income
individuals. Sprint PCS, as the Common Carrier of record, on behalf of
itself or Manager (with respect to the Service Area), might qualify as an
ETC. All Subsidy Funds received must be used to support the provision,
maintenance and upgrading of facilities and services for which the funds
are intended.
10.6.2 PAID BY CUSTOMERS. Sprint PCS will be solely responsible
for remitting to government agencies and/or their designees, including but
not limited to the Universal Service Administrative Company, any and all
universal service fees. As a consequence of this responsibility, Sprint PCS
is entitled to 100% of any amounts received by Manager, Sprint PCS or their
Related Parties from Customers (including Sprint PCS customers whose
NPA-NXX is assigned to the Service Area) relating to the Universal Service
Funds.
10.7 EQUIPMENT REPLACEMENT PROGRAM. Sprint PCS is entitled to 100% of
the amounts paid by Customers for participating in any equipment
replacement program billed on their Sprint PCS bills. Manager will not be
responsible for or in any way billed for any costs or expenses incurred by
Sprint PCS or any Sprint PCS Related Party in connection with any such
equipment replacement program.
10.8 CUSTOMER EQUIPMENT. Sprint PCS is entitled to 100% of the amounts
paid by Customers for subscriber equipment and accessories sold or leased
by Sprint PCS, and Manager is entitled to 100% of the amounts paid by
Customers for subscriber equipment and accessories sold or leased by
Manager, subject to the equipment settlement process in section 4.1.2.
27
10.9 PHASE I E911. Sprint PCS is entitled to 100% of amounts paid by
Customers related to Phase I E911 (e.g., for equipment other than handsets,
such as platforms and networks). Sprint PCS will attempt to recover from
the appropriate governmental authority Phase I E911 reimbursements and will
remit the appropriate amounts to Manager.
10.10 MANAGER DEPOSITS INTO SPRINT PCS ACCOUNTS. Each Business Day,
Manager will deposit into bank accounts in the name of Sprint PCS or a
Related Party designated by Sprint PCS, the amounts collected from
Customers on behalf of Sprint PCS and its Related Parties for Sprint PCS
Products and Services. Manager will allow the funds deposited in the bank
accounts to be transferred daily to other accounts designated by Sprint
PCS. Manager will also provide the daily reports of the amounts collected
required by Sprint PCS. Manager will not make any changes to the authorized
signatories on the bank accounts without the prior written consent of
Sprint PCS.
10.11 MONTHLY STATEMENTS.
10.11.1 SECTION 10.2 STATEMENT. Each month Sprint PCS will
determine the amount payable to Manager for a Billed Month under section
10.2. Sprint PCS will deliver a monthly statement to Manager that reports
the amount due to Manager, the manner in which the amount was calculated,
the amount due to Sprint PCS and its Related Parties under this agreement,
the Services Agreement and the Trademark License Agreements, and the net
amount payable to Manager.
10.11.2 OTHER Statements. Sprint PCS will deliver a monthly
statement to Manager that reports amounts due to Manager or from Manager,
other than amounts described in section 10.12.1, the manner in which the
amounts were calculated, the amount due to Manager or to Sprint PCS and its
Related Parties under this agreement, the Services Agreement and the
Trademark License Agreements, and the net amount payable to Manager.
10.11.3 THIRD PARTY CHARGES. Sprint PCS will include any third
party charges on Manager's statements within three calendar months after
the end of the calendar month during which Sprint PCS receives the third
party charge.
10.12 PAYMENTS.
10.12.1 WEEKLY Payments. Sprint PCS will pay the amount payable
to Manager for a Billed Month under section 10.2 in equal weekly payments
on consecutive Thursdays beginning the second Thursday of the calendar
month following the Billed Month and ending on
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the first Thursday of the second calendar month after the Billed Month. If
Sprint PCS is unable to determine the amount due to Manager in time to make
the weekly payment on the second Thursday of a calendar month, then Sprint
PCS will pay Manager for that week the same weekly amount it paid Manager
for the previous week. Sprint PCS will true-up any difference between the
actual amount due for the first weekly payment of the Billed Month and
amounts paid for any estimated weekly payments after Sprint PCS determines
what the weekly payment is for that month.
10.12.2 MONTHLY PAYMENTS. The amounts payable to Manager and
Sprint PCS and its Related Parties under this agreement, the Services
Agreement and the Trademark License Agreements, other than the payments
described in section 10.12.1, will be determined, billed and paid monthly
in accordance with section 10.12.3.
10.12.3 NET Payments. The amount of each payment to Manager will
be the net amount due to Manager, if any, after reducing the amount payable
to Manager by any amounts due to Sprint PCS and its Related Parties under
this agreement, the Services Agreement and the Trademark License
Agreements. If the amount due to Sprint PCS exceeds the amount due to
Manager, Sprint PCS will bill Manager or reduce the next weekly or monthly
payment to Manager (and will reduce subsequent weekly and monthly payments
if necessary) by the amount of the excess.
10.12.4 TRANSITION OF PAYMENT METHODS. (a) Sprint PCS and Manager
wish to conduct an orderly transition from making weekly payments to
Manager based on Collected Revenues to weekly payments based on Billed
Revenue. The method of calculating the weekly payments will change on the
first day of the calendar month after the Alamosa Holdings, Inc, Alamosa
(Delaware), Inc. and the Alamosa Managers complete their restructuring (the
"TRANSITION DATE"). The weekly amounts paid to Manager during the calendar
month before the Transition Date and on the first Thursday after the
Transition Date will be based on the Collected Revenues method. The weekly
amounts paid to Manager beginning on the second Thursday of the second
calendar month after the Transition Date will be based on the Billed
Revenue method described in this Section 10. To effect an orderly
transition, Sprint PCS will pay Manager for the period beginning on the
second Thursday after the Transition Date and ending on the first Thursday
of the calendar month after the Transition Date an amount calculated as
described below in Section 10.12.4(b).
(b) Sprint PCS will apply the estimated collection percentages
used by Sprint PCS before the Transition Date to the gross accounts
receivable aging categories for Customers with an NPA-NXX assigned to the
Service Area as of the close of business on the day before the Transition
Date to calculate the amount Sprint PCS anticipates collecting on those
accounts receivable. Sprint PCS will pay Manager the amount estimated to be
collected in equal weekly
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payments on consecutive Thursdays beginning the second Thursday after the
Transition Date and ending the first Thursday of the calendar month after
the Transition Date. Sprint PCS will also pay to Manager no later than the
second Thursday after the Transition Date any Collected Revenues received
after the Saturday before the Transition Date and before the Transition
Date.
(c) Sprint PCS will recalculate the estimated collection
percentages and apply the recalculated estimated collection percentages to
the gross accounts receivable aging categories described in the first
sentence of section 10.12.4(b) when all applicable data is available.
Sprint PCS will increase or decrease a weekly payment by the amount of the
difference between the amount paid to Manager based on the initial
estimated collection percentages and the amount that would have been paid
to Manager using the newer estimated collection percentages.
10.13 DISPUTE OR CORRECTION OF STATEMENT AMOUNT. A party can only
dispute or correct an amount on a statement in good faith. If a party
disputes or corrects an amount on a statement, the disputing or correcting
party must give the other party written notice of the specific item
disputed or corrected, the disputed or corrected amount with respect to
that item and the reason for the dispute or correction within three
calendar months after the end of the calendar month during which the
disputed or erroneous statement was delivered.
Any dispute regarding a statement will be resolved through the
dispute resolution process in section 14. The parties must continue to pay
to the other party all amounts, including disputed amounts, owed under this
agreement, the Services Agreement and the Trademark License Agreements
during the dispute resolution process.
The dispute of an item in a statement does not stay or diminish a
party's other rights and remedies under this agreement, except that a party
must complete the dispute resolution process in section 14 before taking
any legal or equitable action against the other party.
10.14 DISPUTE OR CORRECTION OF A THIRD PARTY INVOICE AMOUNT.
Sprint PCS will include the applicable portion of any amount based on a
third party invoice in a statement to Manager within three months of Sprint
PCS' receipt of the third party invoice.
A party can only dispute or correct an amount based on a third
party invoice in good faith. Modified invoices received by Sprint PCS from
a third party vendor and then sent by Sprint PCS to Manager will be treated
as a new statement for purposes of this section.
If a party disputes or corrects an amount on a third party
invoice or
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the amount Sprint PCS attributed to Manager, the disputing party must give
the other party written notice of the specific item disputed or corrected,
the disputed or corrected amount with respect to that item and the reason
for the dispute or correction within three calendar months after the end of
the calendar month during which the disputed or erroneous statement was
delivered. Sprint PCS and Manager will cooperate with each other to obtain
the information needed to determine if the amounts billed by the third
party and allocated to Manager were correct.
Any dispute regarding the amount of the third party invoice
Sprint PCS attributed to Manager will be resolved through the dispute
resolution process in section 14. Manager must continue to pay to Sprint
PCS all amounts, including disputed amounts, owed under this agreement, the
Services Agreement and the Trademark License Agreements during the
information gathering and dispute resolution process; provided, however,
that to the extent any such monies are found to be owing to Manager,
Manager shall be entitled to interest thereon at the Default Rate from the
date of payment by Manager to Sprint PCS until the date such refund is
actually received by Manager.
The dispute of an item in a statement does not stay or diminish a
party's other rights and remedies under this agreement, except that the
parties must complete the dispute resolution process in section 14 before
taking any legal or equitable action against each other.
10.15 LATE PAYMENTS. Any amount due under this agreement, the
Services Agreement and the Trademark License Agreements without a specified
due date will be due 20 days after Manager receives an invoice. Any amount
due under this agreement, the Services Agreement and the Trademark License
Agreements (including without limitation any amounts disputed under those
agreements that are ultimately determined to be due), that is not paid by
one party to the other party in accordance with the terms of the applicable
agreement will bear interest at the Default Rate beginning (and including)
the 3rd day after the invoice or settlement due date until (and including)
the date paid.
10.16 SETOFF RIGHT IF FAILURE TO PAY AMOUNTS DUE. If Manager
fails to pay any amount due Sprint PCS or a Related Party of Sprint PCS
under this agreement, or any amount under the Services Agreement or any
other agreement with Sprint PCS or a Related Party of Sprint PCS, then
Sprint PCS may setoff against its payments to Manager under this section
10, any such amount that Manager owes to Sprint PCS or a Related Party of
Sprint PCS.
This right of setoff is in addition to any other right that
Sprint PCS may have under this agreement.
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16. TERMINATION RIGHTS [NEW]. Section 11.3.7 is deleted, and all references
in the agreement to section 11.3.7 are also deleted.
17. NON-TERMINATION OF AGREEMENT [ADDM I,(SECTION)8]. Sections 11.5.3 and
11.6.4 are replaced with the following paragraphs:
11.5.3 MANAGER'S ACTION FOR DAMAGES OR OTHER RELIEF. Manager, in
accordance with the dispute resolution process in section 14, may seek
damages or other appropriate relief, but such action does not terminate
this agreement.
11.6.4 SPRINT PCS' ACTION FOR DAMAGES OR OTHER RELIEF. Sprint
PCS, in accordance with the dispute resolution process in section 14, may
seek damages or other appropriate relief, but such action does not
terminate this agreement.
18. BUSINESS VALUATION [ADDM V,(SECTION)4]. A new subsection 11.7.4(f) is
added to the Management Agreement:
(f) In the event the Entire Business Value of the Manager is being
determined, the entire value of any Operating Asset may be allocated among
the Manager and one or more of the Other Affiliates, where appropriate, but
the sum of the values attributed to such Operating Asset in determining the
Entire Business Value of the Manager and the Other Affiliates shall not
exceed the value of such Operating Asset if it were used to calculate only
the Manager's Entire Business Value (i.e. "double counting" is prohibited).
19. AUDIT [NEW]. Section 12.1.2 is amended to read as follows:
12.1.2 Audits. On reasonable advance notice, each party must provide
access to appropriate records to the independent auditors selected by the
other party for purposes of auditing the amount of fees, costs, expenses or
other charges payable in connection with the Selected Services with respect
to the period audited. The auditing party will conduct the audit no more
frequently than annually. If the audit shows that Sprint PCS was underpaid
then, unless the amount is contested, Manager will pay to Sprint PCS the
amount of the underpayment within 10 Business Days after Sprint PCS gives
Manager written notice of the determination of the underpayment. If the
audit determines that Sprint PCS was overpaid then, unless the amount is
contested, Sprint PCS will pay to Manager the amount of the overpayment
within 10 Business Days after Manager determines Sprint PCS was overpaid.
The auditing party will pay all costs and expenses related to the audit
unless the amount owed to the audited party is reduced by more than 10% or
the amount owed by the audited party is increased by more than 10%, in
which case the costs and expenses related to the audit will be paid by the
audited party.
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Notwithstanding the above provisions of this section 12.1.2 and subject
to section 1.9, rather than allow Manager's independent auditors access to
Sprint PCS' records, Sprint PCS may provide a report issued in conformity
with Statement of Auditing Standard No. 70 "Reports on the Processing of
Transactions by Service Organizations" ("TYPE II REPORT" or "MANAGER
MANAGEMENT REPORT"); except that, if Manager, on the advice of its
independent auditors or its legal counsel, determines additional assurances
beyond SAS 70 are required by statute, regulation, rule, judicial decision
or interpretation, or audit or accounting rule, policy or literature
published by the accounting or auditing profession or other authoritative
rule making body (such as the SEC, the PCAOB or the FASB), then Sprint PCS
will cooperate with Manager to provide such additional assurances. Any Type
II Report or Manager Management Report provided pursuant to this section
12.1.2 will be prepared by Sprint PCS' independent auditors and will
provide an opinion on the controls placed in operation and tests of
operating effectiveness of those controls in effect at Sprint PCS over
Manager Management Processes. "Manager Management Processes" include those
services generally provided within this agreement, primarily billing and
collection of revenues.
20. SHARING CONFIDENTIAL INFORMATION WITH LENDERS [ADDM II,(SECTION)7].
Section 12.2(b)(vii) of the Management Agreement is replaced with the following
paragraph:
(vii) is disclosed by the receiving party to a financial
institution or accredited investor (as that term is defined in Rule
501(a) under the Securities Act of 1933) that is considering providing
or has provided financing to the receiving party and which financial
institution or accredited investor has agreed to keep the Confidential
Information confidential in accordance with an agreement at least as
restrictive as this section 12.2.
21. REGULATORY NOTICES (COSTS) [ADDM I, (SECTION)2]. The last sentence of
section 16.4 is replaced with the following language: "If Sprint PCS chooses to
respond to such communications and complaints, Manager will not respond to them
without the consent of Sprint PCS. Sprint PCS will bear the cost of responding
to any such communications and complaints unless (1) such response is primarily
the result of Manager's acts or omissions that constitute negligence, willful
misconduct, or breach of any provision of this agreement (in which case Manager
will pay the costs of Sprint PCS' response), or (2) Manager's response is not
requested by Sprint PCS."
22. EMAILING NOTICES [ADDM IV,(SECTION)2; REVISED BY THIS ADDENDUM]. (a)
Section 17.1 is amended to read as follows:
17.1 NOTICES. Any notice, payment, invoice, demand, or communication
required or permitted to be given by any provision of this agreement must
be in writing and mailed (certified or registered mail, postage
33
prepaid, return receipt requested), sent by hand or overnight courier, or
sent by facsimile or email (in either instance with acknowledgment or read
receipt received), charges prepaid and addressed as described below, or to
any other address or number as the person or entity may from time to time
specify by written notice to the other parties. Sprint PCS may give notice
of changes to a Program Requirement by sending an email that directs
Manager to the changed Program Requirement on the affiliate intranet
website.
The subject line of any email notice that purports to amend any Program
Requirement must read "Program Requirement Change" and the first paragraph
must indicate (i) which Program Requirement is being modified, (ii) what is
being modified in the Program Requirement, and (iii) when the Program
Requirement will take effect. The email must also include either a detailed
summary of the Program Requirement change or a redline comparison between
the old Program Requirement and the new Program Requirement.
Any notice, demand or communication intended to be notice of a breach
of an agreement or notice of an Event of Termination, must clearly indicate
that intent, state the section(s) of the agreements allegedly breached, and
be mailed or sent by overnight courier in the manner described in the first
paragraph in this section 17.1.
MANAGER AGREES TO PROMPTLY GIVE SPRINT PCS A COPY OF ANY NOTICE MANAGER
RECEIVES FROM THE ADMINISTRATIVE AGENT OR ANY LENDER (AS THOSE TERMS ARE
DEFINED IN THE CONSENT AND AGREEMENT), AND A COPY OF ANY NOTICE MANAGER
GIVES TO THE ADMINISTRATIVE AGENT OR ANY LENDER. SPRINT PCS AGREES TO
PROMPTLY GIVE MANAGER A COPY OF ANY NOTICE SPRINT PCS RECEIVES FROM THE
ADMINISTRATIVE AGENT OR ANY LENDER, AND A COPY OF ANY NOTICE THAT SPRINT
PCS GIVES TO THE ADMINISTRATIVE AGENT OR ANY LENDER.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given
when received.
(b) The parties' notice addresses are as follows:
For all entities comprising Sprint PCS:
Sprint PCS
KSOPHJ0212-2A101
6130 Sprint Parkway
Overland Park, KS 66251
Telephone: 913-762-7929
Telecopier: 913-523-0539
Email: tmatee01@sprintspectrum.com
Attention: Vice President - Affiliations, PLS & ICS
34
with a copy to:
Sprint Law Department
KSOPHT0101-Z2020
6391 Sprint Parkway
Overland Park, KS 66251
Telephone: 913-315-9315
Telecopier: 913-523-9823
Email: john.w.chapman@mail.sprint.com
Attention: John Chapman
For Manager:
Texas Telecommunications, LP
5225 S. Loop 289
Suite 120
Lubbock, TX 79424
Telephone: 806-722-1100
Telecopier: 806-722-1127
Email: dsharbutt@alamosapcs.com
Attention: David Sharbutt, President
with a copy to:
Crenshaw, Dupree & Milam, L.L.P.
Wells Fargo Center
1500 Broadway, 8th Floor
Lubbock, Texas 79401
Telephone: 806-762-5281
Telecopier: 806-762-3510
Email: JMcCutchin@cdmlaw.com
Attention: Jack McCutchin, Jr.
and with copies to the following individuals' email addresses if a
notice of a Program Requirement Change is sent by email:
Kendall W. Cowan, Chief Financial Officer
Email: kcowan@alamosapcs.com
Stephen A. Richardson, Chief Operating Officer
Email: srichardson@alamosapcs.com
Loyd I. Rinehart, Senior Vice President of Corporate Finance
Email: lrinehart@alamosapcs.com
35
23. FORCE MAJEURE [NEW]. The second paragraph of section 17.9.3 is amended
to read as follows:
Neither Manager nor Sprint PCS, as the case may be, is in breach of any
covenant in this agreement, and no Event of Termination will occur as a
result of the failure of such party to comply with such covenant, if such
party's non-compliance with the covenant results primarily from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the ability to comply with the
covenant;
(ii) the failure of any governmental authority to grant any
consent, approval, waiver, or authorization or any delay on the part of
any governmental authority in granting any consent, approval, waiver or
authorization;
(iii) the failure of any vendor to deliver in a timely manner any
equipment or service; or
(iv) any act of God, act of war or insurrection, riot, fire,
accident, explosion, labor unrest, strike, civil unrest, work stoppage,
condemnation or any similar cause or event not reasonably within the
control of such party;
except that, to the extent a party's obligation to perform any covenant
under this agreement is suspended by reason of an event specified in
subsection 17.9.3(i), (ii), (iii) or (iv) above, then any obligation of the
other party to make a payment in respect of or relating to such covenant
shall be suspended until performance of such covenant is reinstated, and in
no event shall any amounts accrue or otherwise be due and owing in respect
of or relating to such covenant for the period during which performance of
such covenant was suspended by this section.
24. GOVERNING LAW, JURISDICTION AND CONSENT TO SERVICE OF PROCESS [ADDM
VII,(SECTION)6]. Section 17.12 of the Management Agreement is replaced with the
following language:
17.12 GOVERNING LAW, JURISDICTION AND CONSENT TO SERVICE OF PROCESS.
17.12.1 GOVERNING LAW. The internal laws of the State of Kansas
(without regard to principles of conflicts of law) govern the validity of
this agreement, the construction of its terms, and the interpretation of
the rights and duties of the parties.
17.12.2 JURISDICTION; CONSENT TO SERVICE OF PROCESS.
36
(a) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any
Kansas State court sitting in the County of Johnson or any Federal
court of the United States of America sitting in the District of
Kansas, and any appellate court from any such court, in any suit action
or proceeding arising out of or relating to this agreement, or for
recognition or enforcement of any judgment, and each party hereby
irrevocably and unconditionally agrees that all claims in respect of
any such suit, action or proceeding may be heard and determined in such
Kansas State Court or, to the extent permitted by law, in such Federal
court.
(b) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally do so, any objection which it may now
or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement in Kansas State
court sitting in the County of Johnson or any Federal court sitting in
the District of Kansas. Each party hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such suit, action or proceeding in any such court
and further waives the right to object, with respect to such suit,
action or proceeding, that such court does not have jurisdiction over
such party.
(c) Each party irrevocably consents to service of process in the
manner provided for the giving of notices pursuant to this agreement,
provided that such service shall be deemed to have been given only when
actually received by such party. Nothing in this agreement shall affect
the right of a party to serve process in another manner permitted by
law.
25. TRANSFER OF SPRINT PCS NETWORK [ADDM V, (Section)8]. The first sentence
of section 17.15.5 is replaced with the following sentence:
In conjunction with the sale of the Sprint PCS Network, Sprint PCS may
sell, transfer or assign the Sprint PCS Network and any of the Licenses,
including its rights and obligations under this agreement, the Services
Agreement and any related agreements, to a third party without Manager's
consent so long as the third party assumes the rights and obligations under
this agreement and the Services Agreement.
26. ANNOUNCED TRANSACTIONS [ADDM I,(SECTION)9]. Section 17.24 is deleted.
27. ADDITIONAL TERMS AND PROVISIONS [ADDM I, (SECTION)10; REVISED BY THIS
ADDENDUM]. Section 17.25 is replaced with the following paragraph:
17.25 ADDITIONAL TERMS AND PROVISIONS. Certain additional and
supplemental terms and provisions of this agreement, if any, are set forth
in the Addendum to Sprint PCS Management Agreement attached hereto and
incorporated herein by this reference. Manager represents and warrants that
all
37
existing contracts and arrangements (written or verbal) that relate to or
affect the rights of Sprint PCS or any of its Related Parties under this
agreement (e.g., agreements relating to long distance telephone services
(section 3.4)) are described on Exhibit 17.25, and photocopies of any such
written agreements have been delivered to Sprint PCS.
28. FEDERAL CONTRACTOR COMPLIANCE [ADDM I, (SECTION)11]. A new section
17.28, the text of which is attached as Exhibit A to Addendum I, is added and
incorporated by this reference. When and to the extent required by applicable
law, Manager will comply with the requirement of this section 17.28.
29. YEAR 2000 COMPLIANCE [ADDM I,(SECTION)12]. A new section 17.29 is added
to the Management Agreement:
17.29 YEAR 2000 COMPLIANCE. Sprint PCS and Manager each
separately represents and warrants that any system or equipment
acquired, operated or designated by it for use in the Service Area
Network or for use to support the Service Area Network, including
(without limitation) billing, ordering and customer service systems,
will be capable of correctly processing and receiving date data, as
well as properly exchanging date data with all products (for example,
hardware, software and firmware) with which the Service Area Network is
designed to be used, and will not malfunction or fail to function due
to an inability to process correctly date data in conformance with
Sprint PCS requirements for "Year 2000 Compliance." If the Service Area
Network or any system used to support the Service Area Network fails to
operate as warranted due to defects or failures in any system or
equipment selected by Manager (including systems or equipment of third
party vendors and subcontractors selected by Manager rather than by
Sprint PCS) Manager will, at its own expense, make the repairs,
replacements or upgrades necessary to correct the failure and provide a
Year 2000 Compliant Service Area Network. If the Service Area Network
or any system used to support the Service Area Network fails to operate
as warranted due to defects or failures in any systems or equipment
selected by Sprint PCS (including systems or equipment of third party
vendors and subcontractors that Sprint PCS selects and requires Manager
to use), Sprint PCS will, at its own expense, make the repairs,
replacements or upgrades necessary to correct the failure and provide a
Year 2000 Compliant Service Area Network.
"YEAR 2000 COMPLIANCE" means the functions, calculations, and
other computing processes of the Service Area Network (collectively
"Processes") that perform and otherwise process, date-arithmetic,
display, print or pass date/time data in a
38
consistent manner, regardless of the date in time on which the
Processes are actually performed or the dates used in such data or the
nature of the date/time data input, whether before, during or after
January 1, 2000 and whether or not the date/time data is affected by
leap years. To the extent any part of the Service Area Network is
intended to be used in combination with other software, hardware or
firmware, it will properly exchange date/time data with such software,
hardware or firmware. The Service Area Network will accept and respond
to two-digit year-date input, correcting or supplementing as necessary,
and store, print, display or pass date/time data in a manner that is
unambiguous as to century. No date/time data will cause any part of the
Service Area Network to perform an abnormally ending routine or
function within the Processes or generate incorrect final values or
invalid results.
39
30. CROSS-DEFAULT [ADDM V,(SECTION)2 AND ADDM VI,(SECTION)2]. A new section
17.30 is added to the Management Agreement:
17.30 CROSS-DEFAULT. A breach or Event of Termination under any
of the Sprint Agreements (as that term is defined in the Consent and
Agreement) by Texas Telecommunications, L.P., a Texas limited
partnership, Alamosa Missouri, LLC, a Missouri limited liability
company, Southwest PCS, L.P., an Oklahoma limited partnership, or
Washington Oregon Wireless LLC, a Delaware limited liability company,
or their respective successors or assigns (collectively the "OTHER
AFFILIATES") also constitutes a breach or Event of Termination, as the
case may be, by the Manager of the same provision of the applicable
Sprint Agreement to which the Manager is a party, and the Sprint
Parties (as that term is defined in the Consent and Agreement) shall
have the same rights under the Sprint Agreements and the Consent and
Agreement to which the Manager is a party as if the same breach or
Event of Termination had occurred under such Sprint Agreement. The
Manager has no right to cure any breach or Event of Termination with
respect to an Other Affiliate. Such breach or Event of Termination by
an Other Affiliate shall not qualify as a force majeure under the
Sprint Agreements or the Consent and Agreement.
31. PERFORMANCE/PAYMENT OF OTHER AFFILIATES' OBLIGATIONS [ADDM V,
(SECTION)3]. A new section 17.31 is added to the Management Agreement:
17.31 PERFORMANCE/PAYMENT OF OTHER AFFILIATES' OBLIGATIONS. To
induce the Sprint Parties to enter into the Consent and Agreement with
Citicorp, Manager absolutely and unconditionally guarantees the prompt
and punctual performance and payment of the Obligations (as that term
is defined in the Consent and Agreement) of the Other Affiliates and
their respective successors or assigns when due and payable pursuant to
the terms of the Other Affiliates' Sprint Agreements as they may be
amended and modified. Manager agrees that the Sprint Parties shall not
be required first to collect from any other guarantor of any such
obligation or to proceed against or exhaust any collateral or security
for any obligation before requiring Manager to perform or pay the
obligation guaranteed under this section. Any Sprint Party may bring
suit against Manager without joining the Other Affiliates or any other
guarantor. Manager agrees that notice given by a Sprint Party to any
Other Affiliate under such Other Affiliate's Sprint Agreements or the
Consent and Agreement constitutes notice to the Manager.
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32. FINANCIAL INFORMATION [NEW]. A new section 17.32 is added to the
Management Agreement:
17.32 COPIES OF FINANCIAL INFORMATION. Manager agrees to give
Sprint PCS a copy of all financial information it gives the Administrative
Agent or any Lender (as such parties are defined in the Consent and
Agreement).
SERVICES AGREEMENT
------------------
33. SERVICES AGREEMENT [NEW]. Article 2 of the Services Agreement is
amended to read as follows:
2. SERVICES
2.1 SERVICES.
2.1.1 SERVICES. Subject to the terms of this agreement, through
December 31, 2006, Manager will obtain the Services set forth on Schedule
2.1.1 attached to this agreement from Sprint Spectrum in accordance with
the provisions of this section 2.1. Sprint Spectrum will provide all or
none of (i) the grouping of services listed under Section A of Exhibit
2.1.1 ("CCPU SERVICES"), and (ii) the grouping of services listed under
Section B of Exhibit 2.1.1 ("CPGA SERVICES" and together with CCPU
Services, "SERVICES"). Sprint Spectrum will not provide individual CCPU
Services or CPGA Services. The fees charged for the Services are set forth
in section 3.2. Sprint Spectrum may designate Additional Services as
Available Services and Selected Services; except that, without Manager's
prior written consent, neither Sprint Spectrum nor any of its Related
Parties will require Manager to pay for (i) any such additional Available
Services or Selected Services to the extent that such services are the same
as or functionally equivalent to any service or benefit that Manager
currently receives from Sprint Spectrum or its Related Parties or Sprint
PCS or its Related Parties but for which Manager does not pay a separate
fee immediately after the effective date of this Addendum or (ii) any other
additional Available Services or Selected Services through December 31,
2006.
2.1.2 DISCONTINUANCE OF SERVICES. If Sprint Spectrum determines
to no longer offer a Service itself, then Sprint Spectrum must give Manager
written notice at least 9 months before its discontinuance of that Service
that Sprint Spectrum will no longer offer that Service. If Manager
determines within 30 days after receipt of notice of discontinuance that it
wants to continue to receive the Service, Sprint Spectrum will use
commercially reasonable efforts to (a) help Manager provide the Service
itself or find another vendor to provide the Service and (b) facilitate
Manager's transition to the new Service provider. If Sprint Spectrum
procures such Service from a vendor or a new Service provider and bills
those items as Settled-Separately Manager Expenses (as defined in
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subsection 3.2.5 of this agreement) or Manager procures such Services from
a vendor or a new Service provider, then the fees charged by Sprint
Spectrum for the Services will be reduced by any fees payable by the
Manager to such vendor or new Service provider in respect of such
discontinued Services. If Sprint Spectrum discontinues a Service and
neither Sprint nor Manager procure such Service from a vendor or a new
Service provider, then no adjustment to the fees will be made.
2.1.3 PERFORMANCE OF SERVICES. Sprint Spectrum may select the
method, location and means of providing the Services. If Sprint Spectrum
wishes to use Manager's facilities to provide the Services, Sprint Spectrum
must obtain Manager's prior written consent.
2.2 THIRD PARTY VENDORS. Some of the Services might be provided by
third party vendors under arrangements between Sprint Spectrum and the
third party vendors. In some instances, Manager may receive Services from a
third party vendor under the same terms and conditions that Sprint Spectrum
receives those services. In other instances, Manager may receive Services
under the terms and conditions set forth in an agreement between Manager
and the third party vendor.
34. CHANGES TO ARTICLE 3 [NEW]. (a) Section 13 of Addendum I is deleted.
Article 3 of the Services Agreement is amended to read as follows:
3. FEES FOR SERVICES
3.1 SERVICES. Manager will pay Sprint Spectrum a fee for the Services
provided by or on behalf of Sprint Spectrum now or in the future. Manager
will not be permitted to obtain the Services from other sources, except as
provided in this agreement.
If changes to Sprint PCS' accounting reclassifications for the Sprint
PCS CCPU Services or Sprint PCS CPGA Services materially impact the
calculations of the Sprint PCS CCPU Services and Sprint PCS CCPU Services,
then the rates outlined in section 3 of the Services Agreement will be
adjusted accordingly.
3.2 FEES FOR SERVICES.
3.2.1 INITIAL PRICING PERIOD. The fee Manager will pay Sprint
Spectrum for the Services provided to Manager by or on behalf of Sprint
Spectrum each month until December 31, 2006 ("INITIAL PRICING PERIOD"),
will equal the sum of: (a) $7.70 per subscriber multiplied by the Number of
Customers in Manager's Service Area for the CCPU Services, plus (b) 5% of
the Sprint PCS CPGA multiplied by Gross Customer Additions in Manager's
Service Area for the CPGA Services. The fee will be paid as set forth in
section 10 of the
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Management Agreement.
3.2.2 PRICING PROCESS. After the Initial Pricing Period, the
$7.70 fee in 3.2.1(a) will become a percentage of Sprint PCS CCPU and the
fee in section 3.2.1(b) will be adjusted to a new percentage of Sprint PCS
CPGA. The parties will engage in the following pricing process to set the
CCPU and CPGA percentages to be applied in each pricing period after the
Initial Pricing Period ends. Each subsequent pricing period will last three
years (if Manager continues to use Sprint Spectrum to provide the Services)
with the second pricing period beginning on January 1, 2007 and ending on
December 31, 2009.
(a) Sprint Spectrum will give Manager proposed CCPU and CPGA
percentages by March 31 of the final year of the then current pricing
period. The proposed percentages will be based on a reasonable amount to
recover Sprint PCS' costs for providing the CCPU Services and CPGA Services
to Manager and the Other Managers. Manager's representative and the Sprint
PCS representative will begin discussions regarding the proposed CCPU and
CPGA percentages within 20 days after Manager receives the proposed CCPU
and CPGA percentages from Sprint Spectrum.
(b) The fee Manager will pay Sprint Spectrum for the CCPU
Services provided to Manager by or on behalf of Sprint Spectrum each month
beginning on January 1, 2007 until December 31, 2008 under the pricing
process described in this section 3.2.2 will not exceed $8.50 per
subscriber multiplied by the Number of Customers in Manager's Service Area.
(c) If the parties do not agree on new CCPU and CPGA percentages
within 30 days after the discussions begin, then Manager may escalate the
discussion to the Sprint PCS Chief Financial Officer or Sprint Spectrum may
escalate the discussion to Manager's Chief Executive Officer or Chief
Financial Officer.
(d) If the parties cannot agree on the new CCPU and CPGA
percentages through the escalation process within 20 days after the
escalation process begins, then Manager may either
(i) submit the determination of the CCPU and CPGA
percentages to binding arbitration in accordance with section 14.2 of
the agreement, excluding the escalation process set forth in section
14.2, and continue obtaining the Services from Sprint Spectrum at the
CCPU and CPGA percentages determined by the arbitrator,
(ii) self-provide the Services, or
(iii) procure the Services from third-party vendors, subject
to Sprint Spectrum's first right of refusal described in section 3.2.3.
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Manager will begin paying Sprint Spectrum under the CCPU and CPGA
percentages presented for discussion by Sprint Spectrum at the beginning of
the new pricing period until the date on which the parties agree on or the
arbitrator determines the new CCPU and CPGA percentages, whichever occurs
first. Fees paid before the new CCPU and CPGA percentages are established
will be retroactively adjusted from the beginning of the new pricing period
when the parties agree on or the arbitrator determines the new CCPU and
CPGA percentages.
3.2.3 SPRINT SPECTRUM FIRST RIGHT OF REFUSAL. Manager must give
Sprint Spectrum written notice of Manager's decision to procure the CCPU
Services and CPGA Services from a third party vendor at least 120 days
before the end of the Initial Pricing Period or any subsequent three-year
pricing period and provide the third party vendor terms to Sprint Spectrum.
Sprint Spectrum will have 30 days from the date it receives the third party
vendor's terms to decide if it will provide those Services to Manager under
those terms.
Manager must agree to receive the Services from Sprint Spectrum
if Sprint Spectrum gives notice to Manager that it will provide the
Services to Manager on the third party vendor terms. If Sprint Spectrum
does not exercise its first right of refusal, Manager must sign the
agreement with the third party vendor on the same terms and conditions as
presented to Sprint Spectrum within 10 business days after Sprint Spectrum
notifies Manager of its decision not to exercise the first right of refusal
or the expiration of the 30-day period, whichever occurs first. The
procedure set forth in this section 3.2.3 will begin again if Manager does
not sign the agreement with the third party vendor as required in the
preceding sentence.
3.2.4 TRANSITION COSTS. Manager will pay for all reasonable
out-of-pocket costs and reasonable out-of-pocket expenses actually incurred
by Sprint Spectrum and its Related Parties to transfer Manager to a third
party vendor's services or for Manager to self-provide the Services or to
enable Manager to self-provide Services.
3.2.5 SETTLED-SEPARATELY MANAGER EXPENSES. Manager will pay to or
reimburse Sprint Spectrum for any amounts that Sprint Spectrum or its
Related Parties pays for Settled-Separately Manager Expenses.
"SETTLED-SEPARATELY MANAGER EXPENSES" means (i) any amounts that Sprint
Spectrum or its Related Parties pays to third parties for usage of the
products and services used in providing Sprint PCS Products and Services
relating to revenue generating activities, and (ii) those items the parties
choose to settle separately between themselves (e.g. accessory margins,
reciprocal retail store cost recovery) including those items listed in
sections C and D of Exhibit 2.1.1. Sprint Spectrum will give notice to
Manager of any additional services added to section C and D of Exhibit
2.1.1; except that no such additional service may be added to
44
the extent such additional service is the same as, or functionally
equivalent to, either (a) any service that Sprint Spectrum or any of its
Related Parties currently provides to Manager hereunder (unless the fees
payable by Manager to Sprint Spectrum hereunder are correspondingly
reduced) or (b) any service or benefit that Manager currently receives from
Sprint Spectrum or its Related Parties but for which Manager does not pay a
separate fee before the effective date of this Addendum. For each
Settled-Separately Manager Expense, Sprint Spectrum will provide sufficient
detail to enable Manager to determine how the expense was calculated,
including the unit of measurement (e.g., per subscriber per month or per
call) and the record of the occurrences generating the expense (e.g., the
number of calls attributable to the expense). If an expense is not
reasonably subject to occurrence level detail, Sprint Spectrum will provide
reasonable detail on the process used to calculate the fee and the process
must be reasonable. A detail or process is reasonable if it is
substantially in the form as is customarily used in the wireless industry.
The Settled-Separately Manager Expenses will be paid as set forth in
section 10 of the Management Agreement. Sprint Spectrum and its Related
Parties may at any time arrange for Manager to pay any of the
Settled-Separately Manager Expenses directly to the vendor.
Unless Manager specifically agrees otherwise, any
Settled-Separately Manager Expense that Sprint Spectrum or any of its
Related Parties is entitled to charge or pass through to Manager pursuant
to any term or provision of this agreement or the Management Agreement will
reflect solely out-of-pocket costs and out-of-pocket expenses actually
incurred by Sprint Spectrum or its Related Parties, and will in no way
reflect any allocation of internal costs or expenses (including but not
limited to allocations of general and administrative expenses or
allocations of employee compensation or related expenses).
3.3 LATE PAYMENTS. Any payment due under this section 3 that is not
paid by Manager to Sprint Spectrum in accordance with the terms of this
agreement will bear interest at the Default Rate beginning (and including) the
3rd day after the due date stated on the invoice until (and including) the date
on which the payment is made.
3.4 TAXES. Manager will pay or reimburse Sprint Spectrum for any sales,
use, gross receipts or similar tax, administrative fee, telecommunications fee
or surcharge for taxes or fees levied by a governmental authority on the fees
and charges payable to Sprint Spectrum or a Related Party by Manager.
35. AUDIT [NEW]. Section 5.1.2 of the Services Agreement is amended to read
as follows:
5.1.2 AUDITS. On reasonable advance notice, each party must provide
access to appropriate records to the independent auditors selected by the
other party for purposes of auditing the amount of fees, costs, expenses or
other charges payable in connection with the Selected Services with respect
to the period audited. The auditing party will conduct the audit no more
frequently than
45
annually. If the audit shows that Sprint Spectrum was underpaid then,
unless the amount is contested, Manager will pay to Sprint Spectrum the
amount of the underpayment within 10 Business Days after Sprint Spectrum
gives Manager written notice of the determination of the underpayment. If
the audit determines that Sprint Spectrum was overpaid then, unless the
amount is contested, Sprint Spectrum will pay to Manager the amount of the
overpayment within 10 Business Days after Manager determines Sprint
Spectrum was overpaid. The auditing party will pay all costs and expenses
related to the audit unless the amount owed to the audited party is reduced
by more than 10% or the amount owed by the audited party is increased by
more than 10%, in which case the costs and expenses related to the audit
will be paid by the audited party.
Notwithstanding the above provisions of this section 5.1.2 and subject
to section 1.9 of the Management Agreement, rather than allow Manager's
independent auditors access to Sprint PCS' records, Sprint PCS may provide
a Type II Report; except that, if Manager, on the advice of its independent
auditors or its legal counsel, determines additional assurances beyond SAS
70 are required by statute, regulation, rule, judicial decision or
interpretation, or audit or accounting rule, policy or literature published
by the accounting or auditing profession or other authoritative rule making
body (such as the SEC, the PCAOB or the FASB), then Sprint Spectrum will
cooperate with Manager to provide such additional assurances. Any Type II
Report or Manager Management Report provided pursuant to this section 5.1.2
will be prepared by Sprint Spectrum's independent auditors and will provide
an opinion on the controls placed in operation and tests of operating
effectiveness of those controls in effect at Sprint PCS over Manager
Management Processes. "Manager Management Processes" include those services
generally provided within the Management Agreement, primarily billing and
collection of revenues.
36. EMAILING NOTICES [NEW]. Section 9.1 of the Services Agreement is
amended to read as follows:
9.1 NOTICES. Any notice, payment, invoice, demand, or communication
required or permitted to be given by any provision of this agreement must
be in writing and mailed (certified or registered mail, postage prepaid,
return receipt requested), sent by hand or overnight courier, or sent by
facsimile or email (in either instance with acknowledgment or read receipt
received), charges prepaid and addressed as described in subparagraph b of
paragraph 22 of Addendum IX, or to any other address or number as the
person or entity may from time to time specify by written notice to the
other parties.
The subject line of any email notice that purports to amend any Program
Requirement must read "Program Requirement Change" and the first paragraph
must indicate (i) which Program Requirement is being modified, (ii) what is
being modified in the Program Requirement, and
46
(iii) when the Program Requirement will take effect. The email must also
include either a detailed summary of the Program Requirement change or a
redline comparison between the old Program Requirement and the new Program
Requirement.
The subject line of any email notice that purports to add any
additional service to section C or D of Exhibit 2.1.1 must read "Additional
Service to section C/D of Exhibit 2.1.1". The new Exhibit 2.1.1 must also
be attached to the email.
Any notice, demand or communication intended to be notice of a breach
of an agreement or notice of an Event of Termination must clearly indicate
that intent, state the section(s) of the agreements allegedly breached, and
be mailed or sent by overnight courier in the manner described in the
preceding paragraph.
Manager agrees to promptly give Sprint Spectrum a copy of any notice
Manager receives from the Administrative Agent or any Lender (as those
terms are defined in the Consent and Agreement), and a copy of any notice
Manager gives to the Administrative Agent or any Lender. Sprint Spectrum
agrees to promptly give Manager a copy of any notice Sprint Spectrum
receives from the Administrative Agent or any Lender, and a copy of any
notice that Sprint Spectrum gives to the Administrative Agent or any
Lender.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given
when received.
37. FORCE MAJEURE [NEW]. The second paragraph of section 9.8 of the
Services Agreement is amended to read as follows:
Neither Manager nor Sprint Spectrum, as the case may be, is in breach
of any covenant in this agreement and no Event of Termination will occur as
a result of the failure of such party to comply with such covenant, if such
party's non-compliance with the covenant results primarily from:
(i) any FCC order or any other injunction issued by any
governmental authority impeding the ability to comply with the
covenant;
(ii) the failure of any governmental authority to grant any
consent, approval, waiver, or authorization or any delay on the part of
any governmental authority in granting any consent, approval, waiver or
authorization;
(iii) the failure of any vendor to deliver in a timely manner any
equipment or service; or
47
(iv) any act of God, act of war or insurrection, riot, fire,
accident, explosion, labor unrest, strike, civil unrest, work stoppage,
condemnation or any similar cause or event not reasonably within the
control of such party;
except that, to the extent a party's obligation to perform any covenant
under this agreement is suspended by reason of an event specified in
subsection 9.8(i), (ii), (iii) or (iv) above, then any obligation of the
other party to make a payment in respect of or relating to such covenant
shall be suspended until performance of such covenant is reinstated, and in
no event shall any amounts accrue or otherwise be due and owing in respect
of or relating to such covenant for the period during which performance of
such covenant was suspended by this section.
38. GOVERNING LAW, JURISDICTION AND CONSENT TO SERVICE OF PROCESS [ADDM
VII,(SECTION)6]. Section 9.11 of the Services Agreement is replaced with the
following language:
9.11 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS.
9.11.1 GOVERNING LAW. The internal laws of the State of Kansas
(without regard to principles of conflicts of law) govern the validity
of this agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties.
9.11.2 JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) Each party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any Kansas State court sitting in the County of Johnson or any
Federal court of the United States of America sitting in the District
of Kansas, and any appellate court from any such court, in any suit
action or proceeding arising out of or relating to this agreement, or
for recognition or enforcement of any judgment, and each party hereby
irrevocably and unconditionally agrees that all claims in respect of
any such suit, action or proceeding may be heard and determined in such
Kansas State Court or, to the extent permitted by law, in such Federal
court.
(b) Each party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this agreement in Kansas
State court sitting in the County of
48
Johnson or any Federal court sitting in the District of Kansas. Each
party hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such
suit, action or proceeding in any such court and further waives the
right to object, with respect to such suit, action or proceeding, that
such court does not have jurisdiction over such party.
(c) Each party irrevocably consents to service of process in
the manner provided for the giving of notices pursuant to this
agreement, provided that such service shall be deemed to have been
given only when actually received by such party. Nothing in this
agreement shall affect the right of a party to serve process in another
manner permitted by law.
TRADEMARK LICENSE AGREEMENTS
39. NOTICES [NEW]. Section 15.1 of each of the Trademark License
Agreements is amended to read as follows:
Section 15.1. Notices. Any notice, payment, invoice, demand, or
communication required or permitted to be given by any provision of this
agreement must be in writing and mailed (certified or registered mail,
postage prepaid, return receipt requested), sent by hand or overnight
courier, or sent by facsimile(with acknowledgment received), charges
prepaid and addressed as described in subparagraph (b) of paragraph 22 of
Addendum IX, or to any other address or number as the person or entity may
from time to time specify by written notice to the other parties.
Any notice, demand or communication intended to be notice of a breach
of an agreement or notice of an Event of Termination must clearly indicate
that intent, state the section(s) of the agreements allegedly breached, and
be mailed or sent by overnight courier in the manner described in the
preceding paragraph.
Manager agrees to promptly give Sprint PCS a copy of any notice Manager
receives from the Administrative Agent or any Lender (as those terms are
defined in the Consent and Agreement), and a copy of any notice Manager
gives to the Administrative Agent or any Lender. Sprint PCS agrees to
promptly give Manager a copy of any notice Sprint PCS receives from the
Administrative Agent or any Lender, and a copy of any notice that Sprint
PCS gives to the Administrative Agent or any Lender.
All notices and other communications given to a party in accordance
with the provisions of this agreement will be deemed to have been given
when received.
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40. GOVERNING LAW [ADDM VII,(SECTION)6]. Section 15.8 of each of the
Trademark License Agreements is replaced by the following language:
15.8 Governing Law. The internal laws of the State of Kansas (without
regard to principles of conflicts of law) govern the validity of this
agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties.
41. JURISDICTION [ADDM VII,(SECTION)6]. Section 15.13 of each of the
Trademark License Agreements is replaced by the following language:
15.13 Jurisdiction; Consent to Service of Process.
(a) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any Kansas
State court sitting in the County of Johnson or any Federal court of the
United States of America sitting in the District of Kansas, and any
appellate court from any such court, in any suit action or proceeding
arising out of or relating to this agreement, or for recognition or
enforcement of any judgment, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action
or proceeding may be heard and determined in such Kansas State Court or, to
the extent permitted by law, in such Federal court.
(b) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this agreement in Kansas State court sitting
in the County of Johnson or any Federal court sitting in the District of
Kansas. Each party hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such suit, action or proceeding in any such court and further waives the
right to object, with respect to such suit, action or proceeding, that such
court does not have jurisdiction over such party.
(c) Each party irrevocably consents to service of process in the
manner provided for the giving of notices pursuant to this agreement,
provided that such service shall be deemed to have been given only when
actually received by such party. Nothing in this agreement shall affect the
right of a party to serve process in another manner permitted by law.
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SCHEDULE OF DEFINITIONS
42. ADDITIONAL, AMENDED OR SUPPLEMENTED DEFINITIONS [NEW]. The following
are new or amended definitions, unless otherwise indicated:
"ALAMOSA MANAGERS" means Manager and the Other Managers controlled by
Alamosa Holdings, Inc.
"ALLOCABLE SOFTWARE FEE" has the meaning set forth in section 1.3.4(f)
of the Management Agreement.
"ALLOCATED WRITE-OFFS" has the meaning set forth in section 10.3.4 of
the Management Agreement.
"AMOUNT BILLED (NET OF CUSTOMER CREDITS)" has the meaning set forth in
section 10.3.3 of the Management Agreement.
"AWAY NETWORK" means: (i) in the case of Customers (as defined below)
with an NPA-NXX of Manager (or any other such designation in accordance
with section 17.17 of the Management Agreement), any portion of the Sprint
PCS Network other than Manager's Service Area Network, and (ii) in the case
of Customers with an NPA-NXX of Sprint PCS or Other Managers (or any other
such designation in accordance with section 17.17 of the Management
Agreement), Manager's Service Area Network.
"BILLED COMPONENT(S)" has the meaning set forth in section 10.3.2 of
the Management Agreement.
"BILLED MONTH" has the meaning set forth in section 10.2.1 of the
Management Agreement.
"BILLED REVENUE" has the meaning set forth in section 10.2.1 of the
Management Agreement.
"CCPU SERVICES" has the meaning set forth in section 2.1.1 of the
Services Agreement.
"CHIEF FINANCIAL OFFICER OF SPRINT PCS", "SPRINT PCS CHIEF FINANCIAL
OFFICER" and other references to the Chief Financial Officer of Sprint PCS
mean the Senior Vice President - Finance of Sprint Corporation designated
to serve as the chief financial officer of Sprint PCS or if none, the
individual serving in that capacity.
"CPGA SERVICES" has the meaning set forth in section 2.1.1 of the
Services Agreement.
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"CSA" has the meaning set forth in section 10.2.1 of the Management
Agreement.
"CUSTOMER" means any customer, except Sprint PCS Reseller Customers or
customers of third parties for which Manager provides solely switching
services, who purchases Sprint PCS Products and Services, regardless of
where their NPA-NXX is assigned.
"CUSTOMER CREDITS" has the meaning set forth in section 10.2.1 of the
Management Agreement.
"CUSTOMER EQUIPMENT CHARGES" has the meaning set forth in section
10.3.2.6 of the Management Agreement.
"CUSTOMER EQUIPMENT CREDITS" has the meaning set forth in section
10.3.2.2 of the Management Agreement.
"CUSTOMER TAXES" has the meaning set forth in section 10.3.2.4 of the
Management Agreement.
"ENTERPRISE VALUE" means the combined book value of an entity's
outstanding debt and preferred stock less cash plus the fair market value
of each class of its publicly-traded equity other than any publicly-traded
preferred stock. For the purposes of this definition of Enterprise Value,
the fair market value of a class of an entity's publicly-traded equity
(other than publicly-traded preferred stock) shall be equal to the product
of (i) the number of issued and outstanding shares of such class of
publicly-traded equity as of the date of determination, times (ii) the
applicable average closing price (or average closing bid, if traded on the
over-the-counter market) per share of such class of publicly-traded equity
over the 21 consecutive trading days immediately preceding the date of
determination.
"EQUIPMENT REPLACEMENT PROGRAM FEES" has the meaning set forth in
section 10.3.2.5 of the Management Agreement.
"ETC" has the meaning set forth in section 10.6.1 of the Management
Agreement.
"E911 SURCHARGES" has the meaning set forth in section 10.3.2.7 of the
Management Agreement.
"FEE BASED ON BILLED REVENUE" has the meaning set forth in section
10.2.1 of the Management Agreement.
"GROSS CUSTOMER ADDITIONS IN MANAGER'S SERVICE AREA" means the average
number of Sprint PCS customers activated (without taking into consideration
the number of Sprint PCS customers lost) during the previous
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month with an NPA-NXX assigned to the Service Area as reported in Sprint
PCS' most recent monthly KPI report.
"INITIAL 3G DATA FEE PERIOD" has the meaning set forth in section
10.4.1.3(a) of the Management Agreement.
"INITIAL PRICING PERIOD" has the meaning set forth in section 3.2.1 of
the Services Agreement.
"INTER SERVICE AREA FEE" has the meaning set forth in section 4.3 of
the Management Agreement.
"INVESTMENT BANKER" has the meaning set forth in section 9.3.2 of the
Management Agreement.
"MANAGER ACCOUNTS" has the meaning set forth in section 10.2.1 of the
Management Agreement.
"MANAGER MANAGEMENT REPORT" has the meaning set forth in section 12.1.2
of the Management Agreement.
"NET BILLED REVENUE" has the meaning set forth in section 10.2.1 of the
Management Agreement.
"NPA-NXX" means NPA-NXX or an equivalent identifier, such as a network
access identifier (NAI).
"NUMBER OF CUSTOMERS IN MANAGER'S SERVICE AREA" means the average
number of Sprint PCS customers with NPA-NXXs assigned to the Service Area
reported in Sprint PCS' most recent monthly KPI report.
"OTHER AFFILIATES" [ADDM V (SECTION)2 AND ADDM VI, (SECTION)2] has the
meaning set forth in section 17.30 of the Management Agreement.
"OUTBOUND ROAMING FEES" has the meaning set forth in section 10.3.2.3
of the Management Agreement.
"OVERALL CHANGES" has the meaning set forth in section 1.10(a)(ii).
"PROGRAM REQUIREMENT CHANGE" has the meaning set forth in section
9.3.1.
"SCCLP" has the meaning set forth in section 3.4.2 of the Management
Agreement.
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"SERVICE AREA NETWORK" means the network that is directly required for
the provision of telecommunications services to Customers and is managed by
Manager under the Management Agreement in the Service Area under the
License.
"SERVICES" has the meaning set forth in section 2.1.1 of the Services
Agreement.
"SETTLED-SEPARATELY MANAGER EXPENSES" has the meaning set forth in
section 3.2.5 of the Services Agreement.
"SIMILARLY SITUATED MANAGER" means any Other Manager whose ultimate
parent entity (as defined by the Hart-Scott-Rodino Antitrust Improvements
Act of 1976) controls entities with 3 million or more covered pops.
"SOFTWARE FEES" means costs associated (including applicable license
fees) with procuring software, software maintenance, software upgrades and
other software costs needed to provide uniform and consistent operation of
the wireless systems within the Sprint PCS Network.
"SPRINT PCS" means any or all of the following Related Parties who are
License holders or signatories to the Management Agreement: Sprint Spectrum
L.P., a Delaware limited partnership, WirelessCo, L.P., a Delaware limited
partnership, SprintCom, Inc., a Kansas corporation, PhillieCo Partners I,
L.P., a Delaware limited partnership, PhillieCo, L.P., a Delaware limited
partnership, Sprint Telephony PCS, L.P., a Delaware limited partnership,
Sprint PCS License, L.L.C., a Delaware limited liability company, American
PCS Communications, LLC, a Delaware limited liability company, and APC PCS,
LLC, a Delaware limited liability company. Any reference in the Management
Agreement or Services Agreement to Cox Communications PCS, L.P., a Delaware
limited partnership, or Cox PCS License, L.L.C., a Delaware limited
liability company, is changed to Sprint Telephony PCS, L.P., a Delaware
limited partnership, or Sprint PCS License, L.L.C., a Delaware limited
liability company, respectively, to reflect name changes filed with the
Delaware Secretary of State in 2002.
"SPRINT PCS CCPU" means the cash cost per user for the most-recently
publicly announced quarter by Sprint PCS or its Related Parties. Sprint PCS
CCPU is generally calculated by dividing costs of wireless service
revenues, service delivery and other general and administrative costs by
weighted average monthly wireless subscribers. CCPU is a measure analysts
use to evaluate the cash costs to operate the business on a per user basis.
"SPRINT PCS CPGA" means the cost per gross addition for the
most-recently publicly announced quarter by Sprint PCS or its Related
Parties. Sprint PCS CPGA is calculated by dividing the aggregate costs of
acquiring new wireless subscribers, including equipment subsidies,
marketing costs and selling
54
expenses, by gross additional subscribers. Analysts use this measure in
conjunction with the other measures to evaluate the profitability of the
operation.
"SPRINT PCS RESELLER CUSTOMER" means customers of companies or
organizations with a Private Label PCS Services or similar resale agreement
with Sprint PCS.
"SUBSIDY FUNDS" has the meaning set forth in section 10.6.1 of the
Management Agreement.
"TRANSITION DATE" has the meaning set forth in section 10.12.4 of the
Management Agreement.
"TYPE II REPORT" has the meaning set forth in section 12.1.2 of the
Management Agreement.
"USF CHARGES" has the meaning set forth in section 10.3.2.8 of the
Management Agreement.
"VENDOR SOFTWARE" has the meaning set forth in section 1.3.4(b).
"WRITE-OFFS" has the meaning set forth in section 10.3.1 of the
Management Agreement.
"YEAR 2000 COMPLIANCE" has the meaning set forth in section 17.29 of
the Management Agreement.
B. CROSS-REFERENCES TO OTHER PARAGRAPHS IN PREVIOUS ADDENDA.
Listed below are those paragraphs in the previous addenda that are
interpretations or applications of the Management Agreement and the Services
Agreement and that are not listed above. These serve as cross-references to
facilitate finding provisions in the previous addenda. The number shown at the
beginning of each item is the paragraph reference in the designated Addendum.
Addendum I
3. Compliance
Addendum II
1. Consent and Agreement ("C&A")-Related: Use of Loan
Proceeds
55
2. C&A-Related: C&A Not Assignable
3. C&A-Related: Notices
4. C&A-Related: Revised Financing Plan
5. C&A-Related: No Default
6. C&A-Related: No Known Breach under Management Agreement
8. Consent to Change of Control
9. Reaffirmation of Sprint Agreements 10. Counterparts
Addendum III
1. C&A-Related: Use of Loan Proceeds
Addendum IV
1. C&A-Related: Use of Loan Proceeds
Addendum V
1. C&A-Related: Use of Loan Proceeds
6. C&A-Related: Expiration of Limited Remedies Period
7. Revised Financing Plan
9. Reaffirmation of Sprint Agreements
10. Counterparts
Addendum VI
1. C&A-Related: Use of Loan Proceeds
3. Financing Plan
4. Reaffirmation of Sprint Agreements
5. Counterparts
Addendum VII
1. Swap-related: Modification of Build-out Plan
2. Swap-related: Change in Spectrum Range
3. Swap-related: Disaggregation
4. Swap-related: Consideration
5. Swap-related: Expenses
7. Notice Addresses
8. Notices
9. Counterparts
Addendum VIII
1. Swap-related: Superseding Sections of Addendum VII
56
3. Swap-related: Change in Spectrum Range
4. Swap-related: Disaggregation
5. Swap-related: Consideration
6. Swap-related: Expenses
7. Counterparts
C. OTHER PROVISIONS.
1. MANAGER AND SPRINT PCS' REPRESENTATIONS. Manager and Sprint PCS each
represents and warrants that its respective execution, delivery and performance
of its obligations described in this Addendum have been duly authorized by
proper action of its governing body and do not and will not violate any material
agreements to which it is a party. Each of Manager and Sprint PCS also
represents and warrants that there are no legal or other claims, actions,
counterclaims, proceedings or suits, at law or in arbitration or equity, pending
or, to its knowledge, threatened against it, its Related Parties, officers or
directors that question or may affect the validity of this Addendum, the
execution and performance of the transactions contemplated by this Addendum or
that party's right or obligation to consummate the transactions contemplated by
this Addendum.
2. REAFFIRMATION OF SPRINT AGREEMENTS. Each of the undersigned reaffirms in
their entirety the Management Agreement, the Services Agreement and the
Trademark License Agreements, together with their respective rights and
obligations under those agreements.
3. COUNTERPARTS. This Addendum may be executed in one or more counterparts,
including facsimile counterparts, and each counterpart will have the same force
and effect as an original instrument as if the parties to the aggregate
counterparts had signed the same instrument.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
57
The parties have caused this Addendum IX to be executed as of the date
first above written.
SPRINT SPECTRUM L.P.
By: /s/ Thomas E. Mateer
--------------------------------
Name: Thomas E. Mateer
Title: Vice President - Affiliations, PLS & ICS
WIRELESSCO, L.P.
By: /s/ Thomas E. Mateer
--------------------------------
Name: Thomas E. Mateer
Title: Vice President - Affiliations, PLS & ICS
SPRINT COMMUNICATIONS COMPANY L.P.
By: /s/ William K. White
---------------------------------
Name: William K. White
Title: Senior Vice President - Communication
& Brand Management
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
a Wisconsin limited partnership
By: ALAMOSA WISCONSIN GP, L.L.C.
a Wisconsin limited liability company,
as the sole general partner
By: /s/ David E. Sharbutt
---------------------------------
David E. Sharbutt,
President
58
EXHIBIT 1
---------
ILLUSTRATIVE CALCULATION FOR CASH SETTLEMENT
--------------------------------------------
ILLUSTRATIVE ONLY
- ---------------------------------------------------------------------------------------
MONTH 1
- ---------------------------------------------------------------------------------------
Write-offs ((Section)10.3.1) $ 1,235
- ---------------------------------------------------------------------------------------
Billed Revenue ((Section)10.2.1) $ 10,350
- ---------------------------------------------------------------------------------------
Customer Credits ((Section)10.2.1) (970)
- ---------------------------------------------------------------------------------------
Net Billed Revenue ((Sections)10.2.1 and 10.3.2.1) 9,380 82.5%
- ---------------------------------------------------------------------------------------
Customer Equipment Credits ((Sections)10.2.4 & 10.3.2.2) (66) -0.6%
- ---------------------------------------------------------------------------------------
Outbound Roaming Fees ((Sections)10.2.2 & 10.3.2.3) 235 2.1%
- ---------------------------------------------------------------------------------------
Customer Taxes ((Section)10.3.2.4) 1,323 11.6%
- ---------------------------------------------------------------------------------------
Equipment Replacement Program Fees ((Section)10.3.2.5) 156 1.4%
- ---------------------------------------------------------------------------------------
Customer Equipment Charges ((Section)10.3.2.6) 175 1.5%
- ---------------------------------------------------------------------------------------
E911 Surcharges((Section)10.3.2.7) 91 0.8%
- ---------------------------------------------------------------------------------------
USF Charges ((Section)10.3.2.8) 74 0.7%
- ---------------------------------------------------------------------------------------
Amount Billed (Net of Customer Credits) ((Section)10.3.3) $ 11,368 100.0%
- ---------------------------------------------------------------------------------------
FEE CALCULATION
- ---------------------------------------------------------------------------------------
Net Billed Revenue ((Sections)10.2.1 and 10.3.2.1) $ 9,380
- ---------------------------------------------------------------------------------------
Allocated Write-off ((Section)10.3.4) (1,019)
- ---------------------------------------------------------------------------------------
$ 8,361
- ---------------------------------------------------------------------------------------
92%
- ---------------------------------------------------------------------------------------
Fee Based on Billed Revenue ((Section)10.2.1) $ 7,692
- ---------------------------------------------------------------------------------------
Outbound Roaming Fees ((Section)10.2.2) $ 235
- ---------------------------------------------------------------------------------------
Allocated Write-off (26)
- ---------------------------------------------------------------------------------------
E911 Surcharges - Handsets ((Section)10.2.3) 85
- ---------------------------------------------------------------------------------------
Allocated Write-off (9)
- ---------------------------------------------------------------------------------------
Customer Equipment Credits ((Section)10.2.4) (66)
- ---------------------------------------------------------------------------------------
Allocated Write-off 7
- ---------------------------------------------------------------------------------------
Write-off for Customer Equipment Charges ((Section)10.2.5) (19)
- ---------------------------------------------------------------------------------------
$ 208
- ---------------------------------------------------------------------------------------
Total $ 7,900
- ---------------------------------------------------------------------------------------
EXHIBIT 1.7
BUILD-OUT AND WORKING CAPITAL FINANCING
o Alamosa Holdings, Inc. and its direct and indirect subsidiaries, have received
equity contributions and debt financing that exceed in the aggregate $947
million. Alamosa Holdings, Inc. is the ultimate parent of Texas
Telecommunications, LP, Alamosa Wisconsin Limited Partnership, Alamosa Missouri,
LLC, Washington Oregon Wireless LLC and Southwest PCS, LP (each a "Manager"
under a separate Management Agreement with Sprint PCS, and collectively the
"Managers"). This capital has been and will be made available to the Managers
when needed to fund the build-out (requirements to date are substantially
complete) and operations of their PCS systems and to perform their obligations
under their respective Sprint Agreements. The following summarizes the sources
of funds:
- --------------------------------------------------------------------------
(dollars in thousands) CONTRIBUTED
AMOUNTS AND
NET PROCEEDS
- --------------------------------------------------------------------------
EQUITY $ 283,061
- --------------------------------------------------------------------------
SENIOR SECURED DEBT 225,000
(includes $25 million in undrawn revolver)
- --------------------------------------------------------------------------
SENIOR NOTES:
- --------------------------------------------------------------------------
12.875% SENIOR DISCOUNT NOTES 180,515
- --------------------------------------------------------------------------
12.50% SENIOR NOTES 182,807
- --------------------------------------------------------------------------
13.625% SENIOR NOTES 101,306
- --------------------------------------------------------------------------
TOTAL $ 972,689
============
- --------------------------------------------------------------------------
Alamosa Holdings, Inc. and its direct and indirect subsidiaries, have undertaken
a restructuring to adjust the capital structure. The restructuring includes an
exchange of existing bonds for: a) new notes representing 65% of accreted value;
b) preferred stock with a liquidation value of 25% of accreted value,
convertible into 35% of the common equity of Alamosa Holdings, Inc.; and c)
extinguishment of 10% of the accreted value. The following summarizes the effect
on existing Senior Note categories, new Senior Note categories and new Preferred
Stock:
- ------------------------------------------------------------------------------------------
(dollars in thousands) PRE- POST-
RESTRUCTURE RESTRUCTURE
- ------------------------------------------------------------------------------------------
SENIOR NOTES*
- ------------------------------------------------------------------------------------------
12.875% SENIOR DISCOUNT NOTES $ 298,443 $ -
- ------------------------------------------------------------------------------------------
12.50% SENIOR NOTES 250,000 -
- ------------------------------------------------------------------------------------------
13.625% SENIOR NOTES 150,000 -
- ------------------------------------------------------------------------------------------
NEW 12% SENIOR DISCOUNT NOTES - 193,988
- ------------------------------------------------------------------------------------------
NEW 11% SENIOR NOTES - 260,000
- ------------------------------------------------------------------------------------------
TOTAL 698,443 453,988
- ------------------------------------------------------------------------------------------
PREFERRED STOCK - 174,600
- ------------------------------------------------------------------------------------------
TOTAL $ 698,443 $ 628,588
=========== ==========
- ------------------------------------------------------------------------------------------
* Assumes 100% of the noteholders agree to exchange for new notes. In the event
that less than 100% agree to exchange, some of the existing notes would
remain outstanding and the new notes would be decreased. Preferred Stock
would also be adjusted to reflect a lower exchange ratio.
The funds from contributed capital and net proceeds from borrowings, in
conjunction with capital restructuring, are sufficient to meet all build-out and
working capital requirements.
Schedule 2.1.1
--------------
-SECTION A-
PRESENTLY OFFERED CCPU SERVICES - Activity Applied as % to Sprint PCS reported
CCPU
3G Fees
A/P Backhaul/Facility Disputes
Affiliate Utilities
ATM Soft Hand Off
Bank Fees BI Performance Services - Initiation
BI Performance Services - Maintenance
Bid Cost
Billing
Check Free
Clarify Maintenance Fee
CO Usage Collection Agency Fees
Conferences Costs associated with rollout of new products and services
Credit Card Processing/Fees
Customer Care
Customer Solutions - Mature Life
Directory Assistance
DS3
E - Commerce PT
Enhanced Voicemail
Entrance Facility Expenses (Includes Terminating/Trunking Charge)
Ford Revenue
Ford Telematics
Gift Card Payable
Gift Card Receivable
Hal Riney Ad Kit
High Speed Remote Access Server
ICS Clearing House Costs (Includes Illuminet, Roaming Clearing House, and TSI)
IMT Charges
Interconnection
Inter-Machine Trunk
IT (Includes E-Commerce)
LD Verification
LIDB / CNAM
Local Loop, COC, ACF, IXC, etc. (National Platform Expense - Local Loop Cost,
Central Office Connection (COC), access Coordination Fee (ACF), Co-Location
Charges, and Inter Exchange Carrier (IXC) Charges)
Lockbox 261
MCI Disconnect Adjusted
National Platform - COA
National Platform Disputes
National Platform (2G) (Includes Voice Activated Dialing)
Northwest Frequent Flyer
Premium Vision Services
PreNet
Pricing
Pro Text Messaging Plan
Ringers & More (Includes SBF and PT fees)
Roadside Rescue
Sprint Synch Services
Telecheck Charge
Telematics
Text Messaging Plan
TSC Usage
Type 1 Affiliate Long Distance
Voice Command Web
Wireless Web
-SECTION B-
PRESENTLY OFFERED CPGA SERVICES - Activity Applied as % to Sprint PCS reported
CPGA
500 Minute Promotion Credit
Activations - Customer Solutions
Activations - E-Commerce (Includes On Line (Web) Activations)
Activations - Telesales
Commission Credit
Credit Check Fee
Customer Solutions - Early Life
Demo Phones
EarthLink
Hal Riney Service
Handset Logistics
Local/Indirect Commission
NAM/CAM One
Sprint Telesales
PGA Expenses
PLS Commission
SmartWorks Printing
-SECTION C-
PRESENTLY OFFERED CCPU SERVICES - Activity Settled Separately
Affiliate Project Authorizations
Long Distance
Microwave Clearing
Roaming
Software Fees
Sprint Local Telephone Usage
Taxes Paid on Behalf of Type III Affiliates
Tower Lease
Travel Revenue and Expense
Upgrade Commission - 2 Step Channel
Vendor Usage-Based Charges on New Products
Wholesale Revenue and Expense
-SECTION D-
PRESENTLY OFFERED CPGA SERVICES -Activity Settled Separately
3G Device Logistics Fee
3rd Party Spiffs
Accessory Margin
Commissions - National 3rd Party
Commissions - Other 3rd Party
Coop Advertising - Local 3rd Party
Coop Advertising - National 3rd Party
Handset returns
Handset subsidies
Handsets
Marketing Collateral
Meeting Competition Fund
RadioShack Promos (Includes RadioShack Golden Quarter, Jumpstart, Relaunch,
Sprint to Vegas, and Break the Bank)
Rebate Administrative Expense
Rebates
Reciprocal Retail Store Cost Recovery
Sprint LDD Commission
Third Party Promotions
Upgrade Commission - RadioShack