Exhibit I
FORM OF CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made this ___ day of _____, 2008
(the "Effective Date"), by and between TVCC One Six Holdings LLC, a Delaware
limited liability company ("TVCC") and SkyTerra Communications, Inc., a Delaware
corporation ("Consultant"). TVCC and Consultant are sometimes referred to herein
collectively as the "Parties" and individually each of TVCC and Consultant may
be referred to herein as a "Party."
WHEREAS, TVCC is the Federal Communications Commission ("FCC")-authorized
lessee of certain nationwide spectrum rights for 5 MHz in the 1670-1675 MHz band
(the "Spectrum") licensed to OP LLC ("OP"), FCC Call Sign WPYQ831 (the "Spectrum
License"), pursuant to a "Long Term De Facto Transfer Lease Agreement," dated
July 23, 2007, by and between TVCC and OP, and a Master Agreement, dated July
16, 2007, by and among TVCC, OP, and a parent company of OP, Crown Castle MM
Holding LLC (the "Spectrum Lease Agreements"); and
WHEREAS, in connection with Consultant's entry into that certain Master
Contribution and Support Agreement, dated July 24, 2008 (the "Master
Agreement"), by and between Harbinger Capital Partners Master Fund I, Ltd.,
Harbinger Capital Partners Special Situations Fund, LP, Harbinger Co-Investment
Fund, L.P., the Consultant, Mobile Satellite Ventures LP and Mobile Satellite
Ventures Subsidiary LLC, TVCC has requested Consultant to provide, and
Consultant has agreed to provide, certain consulting services to TVCC in
connection with TVCC's use of the Spectrum.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TVCC and Consultant hereby agree
as follows:
1. CONSULTING SERVICES
1.1 Subject to the ultimate authority, control, and approval of TVCC and
the terms and conditions set forth herein, Consultant shall provide or cause to
be provided to TVCC, as TVCC may reasonably request, the following consulting
services (the "Consulting Services"):
(i) assist TVCC in performing the activities in accordance
with the instructions of TVCC for the continued operation, maintenance
and repair of the networks used by TVCC to provide service to the White
Mountain Apache Reservation as reasonably necessary to preserve the
tribal lands bidding credit that OP received in connection with the
auction of the spectrum relating to the White Mountain Indian
Reservation and in accordance with the FCC Memorandum Opinion and
Order, File No. 0002271317, FCC 07-16 (rel. February 26, 2007) that
permitted OP to operate at increased power and all applicable FCC rules
and regulations;
(ii) assist TVCC in accordance with the instructions of TVCC
in (a) compliance with all site leases ("Site Leases") entered into
with CCMM I, LLC ("CCMM"), a wholly-owned subsidiary of TVCC, in
connection with the use of the Spectrum; (b) to the extent therein
permitted, the termination of such Site Leases; (c) decommissioning,
dismantling, removing and disposing the equipment on the sites covered
by such Site Leases, and (d) repairing and restoring the premises
covered by such Site Leases.
(iii) subject to Section 4(b) hereof, assist TVCC and CCMM in
accordance with the instructions of TVCC in maintaining compliance by
TVCC and CCMM with all applicable Federal, state and local regulations
to which its facilities and operations may be subject;
(iv) maintain reasonable records related to all of the
foregoing activities; and
(v) to the extent commercially reasonable, in accordance with
the instructions of TVCC, analyze, perform and provide a study showing
the possible integration of services employing the Spectrum and ATC
services that may be provided in adjacent bands on a nationwide basis.
For the avoidance of doubt, Consultant's duties under this Agreement do not
include the build out of TVCC's system or meeting any FCC build out requirement.
1.2 Consultant shall perform the Consulting Services and devote such time
and resources as are reasonably necessary for the performance of its obligations
hereunder, employing a commercially reasonable standard of care. Consultant may
use subcontractors to provide any of the Consulting Services; provided that
their selection shall be subject to the prior written consent of TVCC, and
further provided, that no such consent shall be required in connection with
services provided by (i) any subcontractor that Consultant has engaged or
engages in its business, (ii) any contractor engaged by TVCC or CCMM as of the
date hereof, or (iii) Crown Castle USA Inc. or any of its affiliates. If
Consultant delegates any of its responsibilities under this Agreement to any of
its Affiliates (as such term is used in the Master Agreement) or uses
subcontractors in the performance thereof, then Consultant shall remain
responsible for the actions and performance of such Affiliate or subcontractor
to the extent Consultant would be responsible hereunder if directly performing
such obligations itself. Certain of the services provided hereunder may require
the utilization of third party software licenses, or otherwise are subject to
restrictions of third parties, and the provision of Consulting Services
hereunder is subject to such licenses or restrictions; provided that no such use
shall subject TVCC to any licensing fee, nor shall any restriction on use be
binding upon TVCC without its express prior written consent. In no event shall
Consultant use any software or other intellectual property in the performance of
its work hereunder to which it does not have the full right to use in the manner
so employed.
1.3 TVCC and Consultant, and their Affiliates, shall reasonably cooperate
with each other (including any of their Affiliates) in the provision of
Consulting Services contemplated by this Agreement.
1.4 TVCC shall make available on a timely basis to the Consultant all
information requested by the Consultant reasonably necessary to perform the
Consulting Services. TVCC shall give the Consultant reasonable access, during
normal business hours and at such other times as are reasonably required, to
TVCC's premises to the extent reasonably necessary to enable it to provide the
Consulting Services.
1.5 All work performed by Consultant, including all reports and records
produced or maintained, shall be performed and maintained as a work for hire for
TVCC and TVCC shall have full right, title and interest therein.
1.6 For the avoidance of doubt, the facilities and Spectrum rights used to
provide services by TVCC shall remain the property of, or, as applicable, under
licenses or leases granted to TVCC, and nothing herein shall constitute any
conveyance or assignment of any right, title, or interest therein to Consultant.
TVCC shall have unfettered access to all of its facilities used to provide any
services that employ the Spectrum, the operation of which shall remain under
TVCC's control. Nothing herein shall give Consultant any rights to hire, fire,
or supervise any personnel of TVCC.
1.7 TVCC (or CCMM, as applicable) shall remain responsible for any payments
as may be due and payable by it (i) under the Spectrum Lease Agreements and Site
Leases, (ii) pursuant to all agreements currently in place, or as TVCC may
subsequently enter into or modify, to provide the White Mountain Apache
Reservation service, and (iii) under any and all other agreements to which TVCC
and/or CCMM is or may in the future become a party concerning the use of the
Spectrum. TVCC shall also be entitled to any payment received for any services
provided over the Spectrum.
1.8 Notwithstanding anything to the contrary in this Agreement, TVCC hereby
acknowledges that the Consultant and its Affiliates shall not be obligated to
perform any Consulting Services hereunder to the extent that (i) performance of
such Consulting Services would constitute a violation of any applicable law,
rule or regulation of any Governmental Entity (as such term is defined in the
Master Agreement) or conflict with or result in any breach, violation or default
under any contract which the Consultant or any of its subsidiaries are bound,
(ii) such Consulting Services are not set forth in Section 1.1 hereof, or (iii)
the Consultant has not been instructed by TVCC to perform such Consulting
Services.
2. CONSULTING FEES AND EXPENSES
2.1 TVCC shall pay Consultant the following fees and costs in consideration
of the Consulting Services to be provided by Consultant hereunder:
(i) A monthly fee of $1,000 (the "Monthly Fee"); and
(ii) Consultant's reasonable, documented third party, out of
pocket expenses reasonably incurred in performing the Consulting
Services, provided that any expenses in excess of $5,000 paid to any
individual third party or affiliated entity in one or a series of
transactions or in excess of $10,000 for any month shall require the
prior written consent of TVCC in order to be subject to reimbursement.
TVCC's obligation to pay for Consulting Services already performed shall survive
any termination of this Agreement.
2.2 Payments to Consultant shall be due and payable monthly in arrears
thirty (30) days from invoice of services performed and expenses incurred.
Invoices for the reimbursement of costs, to be payable, shall include reasonable
documentation thereof.
2.3 Consultant shall be responsible to pay all federal, state and local
taxes which shall be become due on any money paid to Consultant under the terms
of this Agreement.
2.4 Consultant shall review and advise TVCC as to the validity of invoices
and otherwise notify TVCC reasonably in advance as to payments that may be due
to be paid by TVCC or CCMM for site rentals, utilities, vendors and other
obligations of TVCC or CCMM. Responsibility for making such payments as may be
due shall remain with TVCC or CCMM, as applicable.
3. TERM
Subject to the early termination provisions hereof, this Agreement shall be
effective as of the Effective Date and remain in effect until the earliest of:
(i) the Completion (as defined in the Master Agreement); (ii) three (3) months
after the Master Agreement is terminated without the occurrence of a Completion
thereunder; or (iii) July 31, 2010.
4. FCC MATTERS
Consultant expressly recognizes that TVCC is the FCC-authorized lessee of
the Spectrum and operates under applicable federal and state statutes, rules and
regulations. Therefore, Consultant expressly warrants that:
(a) Consultant shall not represent itself as the lessee or
licensee of the Spectrum or as TVCC's or OP's agent or representative
for that or any other purpose. Consultant shall not be, and shall not
hold itself as, in control of the operation or provision of services
employing said Spectrum.
(b) Consultant shall, upon TVCC's request, provide TVCC with
any and all information in Consultant's possession or to which
Consultant has access that may be necessary for TVCC to submit
necessary reports or applications to the FCC or other regulatory
bodies, and, at TVCC's request, shall assist TVCC in the preparation of
FCC or any other relevant authority all reports, applications,
renewals, filings or other documents necessary to do so. The foregoing
notwithstanding, Consultant acknowledges and agrees that TVCC shall
make the final determination as to the contents of all reports,
applications and other filings before the FCC and any other regulatory
body with jurisdiction over TVCC as to all Spectrum Lease Agreement or
Spectrum License matters, or any other matter within the subject matter
of this Agreement.
(c) Nothing herein shall authorize Consultant to become the
notice party under any FCC or other governmental authorization or any
agreement to which TVCC or CCMM may be party. If, nevertheless,
Consultant receives any such FCC, other regulatory, or contractual
notice, it shall immediately forward the same to TVCC.
5. MUTUAL REPRESENTATIONS, WARRANTIES, AND COVENANTS
Each party represents and warrants to the other that:
(a) Organization and Authorization of Transaction. It is duly
organized and validly existing and has full power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of the party, enforceable in accordance with its terms,
except to the extent limited by bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and by principles of
equity or public policy.
6. FORCE MAJEURE
Neither party shall be liable to the other for any failure to perform, or
delay in performing, any act required by this Agreement that is caused by acts
of God or any other cause or force beyond the control of said party, including
but not limited to, strikes, lockouts, or other labor disturbances, shortages of
necessary materials, failure of third party equipment suppliers, or restrictive
governmental laws or regulations, including (without limitation) any change in
FCC regulation or its interpretation thereof; provided that a party subject to
such a force majeure condition promptly notifies the other party of all relevant
circumstances and uses its commercially reasonable efforts to cure its failure
to perform (including through the use of work around procedures or other
available alternatives) as promptly as practical.
7. WAIVER OF LIABILITY; INDEMNIFICATION; EQUITABLE RELIEF
(a) Neither party shall be liable to the other party, and each
party hereby waives all claims against the other party, for any injury
or damage to any property from any cause whatsoever other than by
reason of the willful act, gross negligence or breach of this Agreement
by the other party.
(b) Each party agrees to indemnify and hold harmless, and, at
the other party's request, defend the other party from any and all
claims, suits, or causes of action for damages (including, without
limitation, any actual or threatened FCC forfeiture), including
reasonable costs and attorney's fees, arising out of any injury to or
death of any person, or any damage to property, to the extent caused by
the gross negligence or willful misconduct of the indemnifying party or
its principals, employees, agents, subcontractors or invitees.
(c) Neither party shall be liable to the other for any
special, exemplary, consequential (including lost profits), special,
incidental, punitive or indirect damages with respect to the provision
of Consulting Services.
(d) CONSULTANT MAKES NO EXPRESS WARRANTY, NO WARRANTY OF
MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NOR
ANY IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH RESPECT TO THE
CONSULTING SERVICES AND CONSULTANT HEREBY DISCLAIMS, TO THE FULLEST
EXTENT ALLOWED BY LAW, ANY SUCH WARRANTY. CONSULTANT SHALL HAVE NO
LIABILITY FOR DEFECTS IN SOFTWARE CODE OR OTHER INFORMATION TECHNOLOGY
PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES.
8. DEFAULT
(a) Default. An event of default ("Event of Default") by a
party shall exist if said party shall fail to perform any material
obligation under this Agreement and such failure shall continue for a
period of thirty (30) days following notice from the other party
specifying such nonperformance.
(b) Rights Upon Default. Upon the occurrence of an Event of
Default, the non-Defaulting party may terminate this Agreement, upon
notice to the party in Default, provided said Event of Default is
continuing at the time that said notice is given. The termination by
either party of this Agreement as permitted above shall not be deemed a
waiver of any right of recovery that it may have, as may be specified
in this Agreement or as may otherwise be available to it at law or
equity.
9. NOTICES
Any notice, demand or request required or authorized by this Agreement
shall be in writing and shall be deemed properly given if delivered by certified
mail, return receipt requested, or by hand or overnight courier, with delivery
acknowledged, as follows:
(a) if to Consultant:
SkyTerra Communications, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
with a copy, which shall not constitute notice, sent
at the same time and by the same means to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx,
and Xxx Xxxx Xxxxxxxx
(b) if to TVCC:
with a copy to:
The designation of the person to be notified, or the address of such person, may
be changed at any time, and from time to time, by notice in accordance with this
Section 9.
10. ASSIGNMENT
This Agreement shall be binding upon and inure solely to the benefit of the
parties hereto and their successors, legal representative and assigns, but is
not assignable in whole or in part by either party without the prior written
consent of the other party, which consent shall not be unreasonably withheld,
conditioned or delayed. The foregoing notwithstanding, in no event shall an
assignment relieve either party of its obligations to the other party, without
the express written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed.
11. ARBITRATION
Consultant and TVCC hereby agree that any dispute, controversy or claim
arising out of and/or relating to this Agreement only, the relationship between
Consultant and TVCC or the termination thereof, or the arbitrability of any
controversy or claim, will be finally settled by confidential and binding
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. Sec. 1, et. seq.
Consultant and the Company knowingly and voluntarily hereby waive any rights
that they may have to a jury trial for any such disputes, controversies or
claims. After the arbitration has been initiated, any party may assert any
cross-claims in the arbitration. The arbitration shall be conducted in New York,
NY and administered by the New York City office of the American Arbitration
Association ("AAA") according to the Commercial Arbitration Rules of the
American Arbitration Association ("AAA Rules") then in effect.
The arbitration shall be conducted before a panel of three (3) neutral
arbitrators (the "Panel"). Each party shall nominate one arbitrator and deliver
written notification of such nomination to the other party and to the AAA within
30 days after delivery of the Demand for Arbitration (as defined in the AAA
Rules). In the event a party fails to nominate an arbitrator or deliver
notification of such nomination to the other party and to the AAA within this
time period, upon request of either party, such arbitrator shall instead be
appointed by the AAA if practicable within 30 days of receiving such request.
The two arbitrators appointed in accordance with the above provisions shall
nominate the third arbitrator and notify the parties and the AAA in writing of
such nomination within 15 days of the appointment of the second arbitrator. If
the first two appointed arbitrators fail to nominate a third arbitrator or
notify the parties and the AAA of that nomination within this time period, then,
upon request of either party, the third arbitrator shall be appointed by the AAA
if practicable within 15 days of receiving such request. Any arbitrator
appointed by the AAA shall have significant experience as an arbitrator of cases
involving complex commercial contracts. The third arbitrator shall serve as
Chairman of the Tribunal. The Panel shall have the power to determine its own
jurisdiction and shall render a single written decision. The Panel may enter a
default decision against any party who fails to participate in the arbitration
proceedings.
The decision of the Panel on the points in dispute will be final,
conclusive, unappealable and binding. The award rendered by the arbitrators
shall be final and binding on the parties. Judgment on such award may be entered
in any court having jurisdiction. Without limiting the authority conferred on
the Panel by this Agreement and the Rules, the Panel shall have the authority to
award specific performance.
The parties agree that this Section 11 has been adopted by the parties to
rapidly and inexpensively resolve any disputes between them and that this
Section 11 will be grounds for dismissal of any court action commenced by either
party arising out of this Agreement, other than post-arbitration actions by
either party seeking to enforce an arbitration award. In the event that any
court determines that this arbitration procedure is not binding, or otherwise
allows any litigation regarding a dispute, claim, or controversy covered by this
Agreement to proceed in court, the parties hereto hereby waive any and all right
to a trial by jury in or with respect to such litigation.
Each of the parties hereto hereby unconditionally and irrevocably consents
to submit itself to (i) the exclusive jurisdiction of any federal or state court
located in the Borough of Manhattan, The City of New York (the "New York
Courts"), in any suit, action or proceeding seeking to compel arbitration and
for preliminary injunctive relief to maintain the status quo or prevent
irreparable harm or any other provisional remedy in aid of arbitration and to
(ii) the non-exclusive jurisdiction of the New York Courts to enforce an
arbitral award rendered under this Agreement. For purposes of the foregoing
actions in (i) and (ii), each of the parties hereto (x) hereby unconditionally
and irrevocably agrees that it will not attempt to deny or defeat personal
jurisdiction in the New York Courts by motion or other request for leave from
any such court, and waives any objection based on forum non conveniens or any
other objection to venue thereof and (y) unconditionally and irrevocably
consents to the service of process outside the territorial jurisdiction of such
court by delivery of copies thereof to the address of such party indicated in
Section 9 and such service of process shall be deemed effective service of
process on such party; provided, however, the foregoing shall not limit the
right of any party to effect service of process on the other party by any other
legally available method.
The arbitration administration fees and arbitration administration expenses
shall be borne equally by Consultant and TVCC, provided that Consultant and TVCC
shall pay for and bear the costs of their own experts, evidence, and
representation, and provided that the prevailing party shall be entitled to an
award of the costs and expenses detailed in this paragraph.
12. ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and cancels and supersedes all prior
agreements, proposals, negotiations, representations, discussions, and
correspondence, either written or oral, with respect to the subject matter
hereof. No alterations, changes or amendments to this Agreement shall be
effective unless in writing and signed by both parties hereto.
13. WAIVER
No waiver of a breach of any provision of this Agreement shall constitute a
waiver of any other breach or of the future performance of such provision.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard for the provisions thereof
regarding choice of law. Any action to enforce this Agreement shall be brought
in the Borough of Manhattan, New York, NY.
15. SEVERABILITY
If any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be modified and construed in a manner which
preserves the intent and effect of the remainder of this Agreement to the
maximum extent permitted by law.
16. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement will be deemed or construed to create any
relationship of principal and agent, partnership or joint venture between the
parties. In no event shall either party have, or assert, the right to bind the
other for any purpose.
17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, including
execution by facsimile, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TVCC ONE SIX HOLDINGS LLC
By:_________________________________
Name:
Title:
SKYTERRA COMMUNICATIONS, INC.
By:_________________________________
Name:
Title:
[Signature Page to Consulting Agreement]
SK 03773 0003 904910
