EXHIBIT 10.18
EXECUTION COPY
MANAGEMENT AGREEMENT
BETWEEN
XXXXXX CELLULAR SYSTEMS, INC.
AND
AMERICAN CELLULAR CORPORATION
EFFECTIVE AS OF AUGUST 19, 2003
TABLE OF CONTENTS
Section 1. Engagement 1
Section 2. Management Standards 1
Section 3. Services to be Provided 2
Section 4. Compensation 6
Section 5. Term and Termination 7
Section 6. Noncompetition and Confidentiality 8
Section 7. Force Majeure 9
Section 8. Books and Records 9
Section 9. Regulatory Compliance 10
Section 10. Dispute Resolution 10
Section 11. Inspection Rights; Delivery Information 11
Section 12. Miscellaneous 12
i
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement"), is entered into as of
August 19, 2003 by and between Xxxxxx Cellular Systems, Inc., an Oklahoma
corporation ("Manager"), and American Cellular Corporation, a Delaware limited
liability company (the "Company"). Capitalized terms used but not defined in
this Agreement shall have the meanings given to such terms in the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of
February 25, 2000 (the "LLC Agreement").
WHEREAS, the operation of the Business, including, without limitation,
the determination of policy, the preparation and filing of any and all
applications and other filings with the FCC, the hiring, supervision and
dismissal of personnel, day-to-day system operations, and the payment of
financial obligations and operating expenses, shall be controlled by the
Company, and Manager shall assist the Company in connection therewith and any
action undertaken by Manager shall be under the Company's continuing oversight,
review, control and approval, and the Company shall retain unfettered control
of, access to, and use of the Business, including its facilities and equipment
and shall be entitled to receive all profits from the operation of the Business;
WHEREAS, the Company owns all of the equity interests in American
Cellular Corporation, which through its subsidiaries owns certain Cellular
Systems and PCS Systems;
WHEREAS, Manager is willing to provide management services for the
Company and its Subsidiaries on the terms and subject to the conditions
contained in this Agreement; and
NOW, THEREFORE, for and in consideration of the premises, the covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the execution and delivery
hereof, the parties agree, and the Original Agreement is hereby amended and
restated in its entirety, as follows:
Section 1. Engagement. The Company hereby engages Manager to oversee,
manage and supervise the development and operation of the Business, and Manager
hereby accepts such engagement, subject to and upon the terms and conditions
hereof.
Section 2. Management Standards.
(a) In performing its obligations hereunder, Manager shall act
in a manner that it reasonably believes to be in the best interests of the
Company consistent with the standards set forth herein.
(b) Manager shall devote comparable attention and services to
the Company as those devoted by Manager in its management of other wireless
communications systems or markets directly or indirectly owned or managed by
Manager, and will otherwise deal with the Company subject to the terms of this
Agreement in a manner that is substantially consistent with the manner in which
the Manager has operated the Company's markets prior to the date of this
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Agreement and in a manner that does not unreasonably discriminate against the
Company in favor of such other markets.
(c) Manager shall use reasonable best efforts to cause the
Company's Cellular Systems to be maintained and operated in the same manner and
with quality standards consistent with the manner and standard of Manager's
owned cellular systems.
Section 3. Services to be Provided.
(a) Scope of Services. Subject to the Company's oversight,
review and ultimate control and approval and the limitations of Section 3(c)
below, Manager shall be responsible for the supervision, design, construction
and operation of the Company and the Business in accordance with the Operating
Agreements. Among other things, Manager shall have the right to select the
persons who shall perform all design, construction, management or operational
services and may elect to use its own employees or engage independent
contractors. To this end Manager shall provide generally, on the terms and
subject to the conditions set forth herein and in a manner consistent with the
standards set forth herein, supervisory services with respect to (x) all
administrative, accounting, billing, credit, collection, insurance, purchasing,
clerical and such other general services as may be necessary to the
administration of the Business, (y) operational, engineering, maintenance,
construction, repair and such other technical services as may be necessary to
the construction and operation of the Business, and (z) marketing, sales,
advertising and such other promotional services as may be necessary to the
marketing of the Business. The services for which Manager shall be responsible,
the Company's oversight, review and ultimate control and approval and to the
limitations of Section 3(c) below, shall include but shall not be limited to the
following:
(i) the marketing of Mobile Wireless Services, other
Company Communications Services to be offered and provided by
the Company;
(ii) the management, tax compliance, accounting and
financial reporting for the Company including, but not limited
to, the preparation and presentation of reports and reviews of
the business, financial results and condition, regulatory
status, competitive position and strategic prospects of the
Company as reasonably requested by the Company;
(iii) the regulatory processing for the Company,
including without limitation the preparation and filing of all
appropriate regulatory filings, certificates, tariffs and
reports that are required by, and participation in any
hearings or other proceedings before, local, state and federal
governmental regulatory bodies;
(iv) the engineering, design, planning, construction
and installation, maintenance and repair (both emergency and
routine) and operation of, and equipment purchases for, the
Company;
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(v) assisting the Company in the development and
preparation of budgets, including, without limitation,
preparing and presenting an annual operating budget for the
Company's review, evaluation and approval setting forth in
reasonable detail the anticipated capital expenditures and
other projected costs and expenses of constructing and
operating the Business during the period covered by the
budget, as well as projected revenues for that period, a
business plan and personnel requirements, and key performance
standards, goals and indicators for the Company, for the
period covered by the budget, in each case presented on a
month-by-month basis to the extent practicable, and generally
describing all contracts and commitments which Manager expects
to enter into on behalf of the Company during the period
covered thereby;
(vi) services relating to sales of the products and
services offered by the Company, including without limitation
processing orders for service, customer support, billing for
services provided by the Company and collection of receivables
for the Company;
(vii) management information services for the
Company;
(viii) monitoring and controlling the Business and
its Cellular Systems;
(ix) negotiating contracts, issuing purchase orders
and otherwise entering into agreements on behalf of the
Company for the purchase, lease, license or use of such
properties, services and rights as may be necessary or
desirable in the judgment of Manager for the operation of the
Company;
(x) supervising, recruiting and training all
necessary personnel to be employed by the Company, and
determining salaries, wages and benefits for the Company's
employees;
(xi) administering the Company's employee benefit
programs and the Company's programs for compliance with
applicable laws governing the administration and operation of
such plans and programs;
(xii) administering the Company's risk management
programs, including negotiating the terms of property and
casualty insurance and preparing a comprehensive disaster
recovery program; and
(xiii) in furtherance of the foregoing, making or
committing to make permitted expenditures (including permitted
capital expenditures) on behalf of the Company.
(b) Accounts. Subject to the foregoing, the Company shall be
responsible for payment of all costs and expenses necessary to fund the ongoing
business and operations of the Business and for the provision of all services of
Manager hereunder, which shall include, but not be limited to, payments under
Section 4, payments to independent contractors, payments to
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vendors and suppliers of the Business, and interest payments to creditors who
have financed the construction or operation of the Business. To the extent
provided herein, Manager shall make such payments on the Company's behalf from
one or more accounts maintained in the name of the Company at one or more banks
into which all Company revenues shall be deposited (the "Accounts"). All funds
of the Company shall be promptly deposited in such bank accounts. All
disbursements made by the Company as permitted under this Agreement shall be
made by checks drawn on the Accounts, and all funds on deposit in the Accounts
shall at all times be the property of the Company. Manager will have the right
and authority to make deposits to and disbursements and withdrawals from the
Accounts as required in connection with the performance of its services
hereunder.
(c) Restrictions on Manager's Authority. Anything to the
contrary in this Agreement notwithstanding, Manager shall not take, or cause or
permit to be taken, any action that requires the approval of, or do, or cause or
permit to be done, any of the following for or on behalf of the Company without
the consent of the Company (unless included with reasonable specificity in a
budget duly adopted by the Company):
(i) settle any claim or litigation by or against the
Company if the settlement involves a payment of $500,000 or
more, or any non-ministerial regulatory proceedings involving
the Company;
(ii) (A) lend money or guarantee debts of others
(other than wholly-owned Subsidiaries of the Company) on
behalf of the Company, or assign, transfer, or pledge any
debts due the Company, or (B) release or discharge any debt
due or compromise any claim of the Company, other than trade
credit and advances to employees in the ordinary course of
business;
(iii) invest in or otherwise acquire any debt or
equity securities of any other Person, enter into any binding
agreement for the acquisition of any interest in any business
entity or other Person (whether by purchase of assets,
purchase of stock or other securities, merger, loan or
otherwise), or enter into any joint venture or partnership
with any other Person;
(iv) take any tax reporting position or make any
related election on behalf of the Company which is
inconsistent with the directions given by the Company;
(v) assert on behalf of the Company a position with
respect to any material matter, or disagree on behalf of the
Company with a position taken with respect to any material
matter by a Member or any other Person, before the Federal
Communications Commission or any other Governmental Authority,
a self-regulatory body, any industry organization or in any
other public forum;
(vi) knowingly take or fail to take any action that
violates (A) any law, rule or regulation relating to the
Business, (B) any material agreement, arrangement or
understanding to which the Company is a party, including an
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Operating Agreement, (C) any License or other governmental
authorization granted to the Company in connection with its
ownership and operation of the Business, or (D) any judicial
or administrative order or decree to which the Company is
subject;
(vii) sell, assign, transfer, or otherwise dispose
of, or hypothecate or xxxxx x Xxxx on any License or other
material assets belonging to the Company (other than the
disposal of assets or equipment in the ordinary course of
business);
(viii) take any action amending or agreeing to amend
any License granted to the Company in. connection with its
ownership and operation of the Business (it being understood
that License renewals in the ordinary course of business shall
not require the Company's approval);
(ix) borrow money on behalf of the Company or enter
into other forms of financing for the Business, other than any
capital lease;
(x) commingle any funds of the Company with funds of
any other entity or Person;
(xi) hire or fire the independent certified public
accountants of the Company;
(xii) pay to any employee or consultant or advisor
to, the Company, cash compensation in excess of $150,000 in
any fiscal year;
(xiii) establish any reserves that are not set forth
on the budget approved by the Company;
(xiv) make any material changes or modifications to
any significant components of the Company Cellular Systems as
they exist on the Effective Date;
(xv) enter into any contract, agreement (including
any capital lease) or other commitment or issue any purchase
order, which contract or other agreement or purchase order (A)
is not in the ordinary course of business, (B) obligates the
Company to make payments of $500,000 or more within any
12-month period or (C) could reasonably be expected to create
a material variance relative to (x) in the case of a capital
expenditure, the total budget for capital expenditures
contained in any budget approved by the Company and (y) in the
case of an operating expense, the total operating expense
budget contained in any budget approved by the Company, in
each case for the year-to-date period in which the expenditure
is made or incurred and taking into account all previous
expenditures and commitments in such year-to-date period; or
terminate or amend in any material respect any contract,
agreement or other commitment or purchase order, in each case
if the execution and delivery or issuance thereof requires
approval pursuant to this Section 3(c); or
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(xvi) enter into, or commit to enter into, any
agreement, arrangement or understanding that could reasonably
be expected to have an adverse effect on the Company's ability
to comply in any material provisions of this Agreement.
(d) Budgets. Manager shall prepare or cause to be prepared and
present in a timely manner an annual operating budget (with quarterly forecasts)
for the Company's review, evaluation and approval (each, as duly approved by the
Company, an "Operating Budget"). Each Operating Budget shall set forth in
reasonable detail the anticipated capital expenditures and other projected costs
and expenses of operating the Company's Cellular Systems during the period
covered by the budget, as well as projected revenues for that period and the
projected reportable income for such quarter and Manager shall endeavor to
assure the accuracy of its estimates.
(e) Transactions with Affiliates. Notwithstanding anything in
this Agreement to the contrary, without the prior approval of the Company,
Manager shall not (and shall cause the Company and its Subsidiaries not to)
enter into any agreement, arrangement or understanding with Manager or any of
its Affiliates except in the ordinary course of the Business of the Company and
on commercially reasonable terms that are no less favorable to the Company or
its Subsidiaries than the Company or its Subsidiaries would obtain in a
comparable arm's-length transaction with an unaffiliated Person. In its request
for approval of the Company, Manager shall specify that the applicable
transaction is subject to this Section 3(e).
Section 4. Compensation.
(a) Reimbursement. The Company shall reimburse Manager for all
out-of-pocket expenses ("Out-of-Pocket Expenses") reasonably incurred by Manager
for goods and services provided by third parties to, for or on behalf of the
Company or incurred by Manager in the performance of its duties and
responsibilities hereunder. Manager shall provide the Company with an accounting
setting forth in reasonable detail (and, if requested by Company, with
supporting documentation) the Out-of-Pocket Expenses claimed within thirty (30)
days after they are incurred. The Company shall pay to Manager each such amount
within thirty (30) days of receipt of such statement and invoices or other
supporting documentation (it being understood that estimated Out-of-Pocket
Expenses will not be reimbursed until Manager provides the Company with the
invoices or other supporting documentation therefore).
(b) Cost Allocations. To the maximum extent practicable,
Manager and its Affiliates will specifically identify costs associated directly
or solely with the Business, which shall be reimbursed by the Company as
Out-of-Pocket Expenses in accordance with Section 4(a). To the extent that such
specific identification is impracticable, Manager shall charge the Company "Cost
Allocations" for those common costs, which benefit the Company (including an
appropriate portion of Manager's general overhead costs). Cost Allocations
(including without limitation the cost of services directly allocable to the
Company that are performed by employees of Manager or its Affiliates) shall be
calculated and charged to the Company, except for common costs associated with
call center activities or operation, on the basis of licensed POPs for the
market(s) sharing in or benefiting from such common costs (other than those
associated with the
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call centers). For purposes of this Agreement, POPs shall mean the number of
residents of a licensed area based upon the most current determination of such
by the Company and Manager. Common costs associated with call center activities
or operation shall be allocated on the basis of subscribers in the market(s)
sharing in or benefiting from such costs. With regard to those common costs,
which are subject to any specific lease or shared equipment agreements, the cost
allocations therein shall control in the event of a difference between those
agreements and this Agreement. Manager shall cause to be furnished to the
Company, at Company's expense, an accounting of any such Cost Allocations, and
the Company shall pay to Manager such amount within thirty (30) days of receipt
of such accounting.
(c) Disputes, etc. If the Company disputes the amount of Out-
of-Pocket Expenses or Cost Allocations claimed by Manager, the Company shall
notify \ Manager in writing before payment is due, and if the matter cannot be
resolved informally between the parties, either the Company or Manager may
request resolution of the dispute pursuant to Section 10.
Section 5. Term and Termination.
(a) This Agreement shall commence on August 19, 2003 (the
"Effective Date") and shall terminate as provided herein.
(b) Termination.
(i) By Either Party. Either party may terminate this
Agreement in the event that a Governmental Authority shall enter an
order appointing a custodian, receiver, trustee, intervenor or other
officer with similar powers with respect to the other party or with
respect to any substantial part of its property, or constituting an
order for relief or approving a petition in bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding up or
liquidation of such party; or if a party files a petition seeking any
such order; or if any such petition shall be filed against such party
and shall not be dismissed within one hundred and twenty (120) days
thereafter; or an order shall have been issued granting such party a
suspension of payments under applicable law and any such 1 order is not
dismissed within one hundred and twenty (120) days thereafter.
(ii) By Company. The Company may terminate this
Agreement:
(A) on ten (10) days' notice in the event of
a material breach of this Agreement by Manager, which has not
been cured within sixty (60) days following notice thereof
from the Company;
(B) on ten (10) days' notice if a Change of
Control of either the Company, the Manager or DCC occurs For
the purpose of this Agreement, a Change of Control shall mean:
(1) any "person" or "group," within the meaning of Section
13(d) of 14(d)(2) of the Exchange Act, becomes the ultimate
"beneficial owner," as defined in Rule 13d-3 under the
Exchange Act, of more than 35% of the total voting power of
the Voting Stock of the Company, the
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Manager or DCC (as the case may be), on a fully diluted basis
and such ownership represents a greater percentage of the
total voting power of the Voting Stock of the Company, the
Manager or DCC (as the case may be), other than is held by the
controlling stockholder and its Affiliates of the Company
Manager or ACC (as the case may be), on the Effective Date;
(2) Individuals who on the Effective Date constitute the Board
of Directors, together with any new directors whose election
by the Board of Directors or whose nomination for election by
the stockholders of the Company Manager or ACC (as the case
may be), was approved by a vote of at least a majority of the
members of the Board of Directors on the Effective Date or
whose election or nomination for election was previously so
approved, case for any reason to constitute a majority of the
members of the Board of Directors then in office; (3) the
sale, lease, transfer, conveyance or other disposition (other
than by away of merger or consolidation), in one or a series
of related transactions, of all or substantially all the
combined assets of the Company, taken as a whole, to any
Person other than the Company Manager or ACC (as the case may
be), or any Affiliate thereof; or (4) the adoption of a plan
of liquidation or dissolution of the Company, the Manager or
DCC (as the case may be); and
(C) on ten (10) days' notice if the Company
fails to comply with the financial performance standards set
forth on Exhibit 3(c).
(iii) By Manager. Manager may terminate this
Agreement on ten (10) days' notice in the event of a material
breach of this Agreement by the Company (other than a payment
default) which has not been cured within sixty (60) days
following notice thereof from Manager.
(c) Remedies. The remedies set forth herein are not intended
to be exclusive, and all remedies shall be cumulative and may be exercised
concurrently with any other remedy available to Manager or the Company at law or
in equity. (i)
Section 6. Confidentiality.
(a) Confidentiality. Manager shall, and shall cause each of
its Affiliates, and each of its and their respective partners, members,
managers, shareholders, directors, officers, employees and agents (collectively,
"Agents") to keep secret and retain in strictest confidence and not use for any
purpose any and all Confidential Information relating to the Company or any
member of the Company and shall not disclose such information, and shall cause
its Agents not to disclose such information, to the same extent such information
of the Manager is protected by Manager.
(b) Company Property. Promptly following the termination of
this Agreement, Manager shall return to the Company all property of the Company,
and all copies thereof in its possession or under its control, and all tangible
embodiments of Confidential Information in its possession in whatever media such
Confidential Information is maintained.
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(c) Injunctive Relief with Respect to Covenants. Manager
acknowledges and agrees that the covenants and obligations contained in this
Section 6 relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants and obligations will cause the
Company irreparable injury for which adequate remedies are not available at law.
Therefore, Manager agrees that the Company shall be entitled to an injunction,
restraining order, or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain Manager and its
Affiliates from committing any violation of the covenants and obligations
contained in this Section 6. These injunctive remedies are cumulative and are in
addition to any other rights and remedies the Company may have at law or in
equity.
Section 7. Force Majeure. Neither of the parties will be liable for
nonperformance or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such nonperformance,
defective performance or late performance is due to reasons outside such party's
control, including acts of God, war (declared or undeclared), acts (including
failure to act) of any governmental authority, riots, revolutions, fire, floods,
explosions, sabotage, nuclear incidents, lightning, weather, earthquakes,
storms, sinkholes, epidemics, strikes, or delays of suppliers or subcontractors
for the same causes.
Section 8. Books and Records. Manager shall maintain and oversee the
maintenance and preparation of proper and complete records and books of account
for tax and financial purposes with respect to its management of the operation
of the Business, including all such transactions and other matters as are
usually entered into records and books of account maintained by Persons engaged
in business of like character or as required by law. Manager shall maintain and
oversee the maintenance and preparation of complete records and books of the
Company for tax purposes. Books and records maintained for financial purposes
shall be maintained in accordance with GAAP, and books and records maintained
for tax purposes shall be maintained in accordance with the Code and applicable
Treasury Regulations. Manager shall also provide at the Company's request and
expense any and all such additional statements or reports as may be reasonably
necessary to the Company's oversight and control of the Business. The Company
shall have control over and access, at all reasonable times during normal
business hours, to the books and records of the Company maintained by Manager
pursuant to this Section 8.
Section 9. Regulatory Compliance. Subject to the other provisions of
this Agreement, Manager shall cause the Company and its Subsidiaries, and their
respective Cellular Systems, to remain in compliance in all material respects
with applicable laws, rules and regulations, including rules and regulations
promulgated by the FAA and the FCC. Without limiting the generality of the
foregoing, the parties agree to comply with all applicable FCC rules and
regulations governing the Cellular Systems and the Licenses, and specifically
agree as follows:
(a) The Company (or its Subsidiaries which are the holders of
the Licenses) shall at all times maintain absolute control over, and retain the
ability to exercise the unfettered use of, the Licenses and the licensed
facilities provided thereunder, including the products and
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services to be offered and the rates to be charged and the further right to
terminate service should public interest obligations under the applicable
Licenses so require.
(b) Manager shall not represent itself as the holder of a
License to provide the Company Communications Services on any of the Cellular
Systems of the Company.
(c) Each customer (if any) billed by Manager shall be clearly
advised that service is provided over facilities licensed to the Company (or the
Subsidiary which is the holder of a License).
(d) Neither Manager nor the Company (or a Subsidiary which is
a holder of a License) shall represent itself as the legal representative of the
other before the FCC. Manager and the Company (and each Subsidiary which is the
holder of a License) will cooperate with the other with respect to FCC matters
concerning the Cellular Systems.
(e) The Company (and each Subsidiary which is the holder of a
License) shall (i) in cooperation with Manager, take all actions necessary to
keep its Licenses in force and shall prepare and submit to the FCC, or any other
relevant authority, all reports, applications, renewals, filings or other
documents necessary to keep its Licenses in force and in good standing; (ii)
with all due assistance which may be necessary from Manager, respond promptly to
all FCC correspondence or inquiries and will immediately notify Manager of the
receipt thereof; and (iii) promptly report any changes of its address to the FCC
and to Manager.
(f) The Company (and each Subsidiary which is the holder of a
License) and Manager are familiar with the rules of the FCC regarding the
responsibility of the holder of a License under the Communications Act and
applicable FCC rules, regulations and policies. Nothing in this Agreement is
intended to diminish or restrict the obligations of the Company (or a Subsidiary
which is the holder of a License) as an FCC license and both parties desire that
this Agreement be in compliance with the rules and regulations of the FCC. If
the FCC determines that any provision of this Agreement violates any FCC rule,
policy or regulation, all parties will make good faith efforts to immediately
correct the problem and bring this Agreement into compliance, consistent with
the intent of this Agreement.
Section 10. Dispute Resolution. If a dispute arises out of or relating
to this Agreement or the transactions contemplated hereby, or the construction,
interpretation, performance, breach, termination, enforceability or validity
hereof, whether such claim is based on rights, privileges or interests
recognized by or based upon contract, tort, fraud, misrepresentation, statute,
common law or any other legal or equitable theory, ("Dispute") and whether such
Dispute existed prior to or arises on or after the Effective Date, the dispute
resolution processes set forth herein shall apply.
(a) The parties shall first attempt to settle each Dispute
through good faith negotiations. The aggrieved party shall initiate
such negotiations by giving the other party(ies) written notice of the
existence and nature of the Dispute. The other party(ies) shall in a
writing to the aggrieved party acknowledge such notice of Dispute
within ten (10) business days. Such acknowledgment may also set forth
any Dispute that the acknowledging party desires to have resolved in
accordance with this Section.
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(b) Thereafter, if any Dispute is not resolved by the parties
through negotiation within thirty (30) calendar days of the date of the notice
of acknowledgment, either party may terminate informal negotiations with respect
to that Dispute and have the right, by delivery of written notice thereof (the
"Arbitration Notice") to the other party, to submit the matter to be finally
settled by arbitration in accordance with the Commercial Arbitration Rules then
in effect of the Owner Arbitration Association, as modified herein (the "AAA
Rules"). The place of arbitration shall be Oklahoma City, Oklahoma. All matters
so submitted to arbitration shall be settled by three arbitrators. Owner and
User shall each designate one arbitrator within 20 days of the delivery of the
Arbitration Notice. If either Owner or User fails so to timely designate an
arbitrator, the matter shall be resolved by the one arbitrator timely
designated. If two Arbitrators are selected, Owner and User shall cause the
designated arbitrators to mutually agree upon and to designate a third
arbitrator, provided, however, that failing such agreement within 45 days of
delivery of the Arbitration Notice, the third arbitrator shall be appointed in
accordance with the AAA Rules. Owner and User shall be responsible for the
payment of the fees and expenses of their respectively designated arbitrators
and shall bear equally the fees and expenses of the third arbitrator. Owner and
User shall cause the arbitrators to decide the matter to be arbitrated pursuant
hereto within 60 days after the appointment of the last appointed arbitrator.
The arbitral tribunal is not empowered to award damages in excess of
compensatory damages and each party hereby irrevocably waives any right to
recover punitive, exemplary or similar damages with respect to any Dispute. The
final decision of the majority of the arbitrators shall be furnished to Owner
and User in writing and shall constitute a conclusive determination of the
matter in question, binding upon Owner and User and shall not be contested by
either of them. Such decision may be used in a court of law only for the purpose
of seeking enforcement of the arbitrators' award. Any arbitration proceeding,
decision or award rendered hereunder and the validity, effect and interpretation
of this arbitration agreement shall be governed by the Federal Arbitration Act,
9 U.S.C. Sections 1-16, and judgment upon any award may be entered in any court
of competent jurisdiction.
(c) Pending the resolution of any Dispute not involving the
entire Agreement, the parties agree to continue the operation of the provisions
of the Agreement to the extent reasonably possible.
Section 11. Inspection Rights; Delivery of Information.
(a) Company's Right to Inspect. Manager will permit
representatives of the Company, at the Company's cost, during normal business
hours and upon not less than five business days' advanced written request, to
(i) visit and inspect during normal business hours Manager's properties and
facilities which are utilized in connection with Manager's provision of services
to the Company pursuant to this Agreement, including without limitation access
to, and the right to make copies of, books and records of the Company located at
such properties and facilities, and (ii) discuss with Manager's officers and
employees such properties and facilities and Manager's provision of services to
the Company pursuant to this Agreement. All such information shall be held in
confidence by the Company, except for disclosures made to the
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Company's advisors, lenders and investors, or as required to be disclosed by
process of law or other applicable law.
(b) Notice of Certain Events. Promptly, and in any event
within five (5) business days after Manager has received notice or has otherwise
become aware thereof, Manager shall give the Company notice of (i) the
commencement of any material proceeding or investigation against the Company or
Manager by or before any governmental body or in any court or before any
arbitrator which would be likely to have a material adverse effect on Manager,
the Business or the Company, or on Manager's ability to perform its obligations
hereunder, and (ii) the occurrence or non-occurrence of any event (x) which
constitutes, or which with the passage of time or giving of notice or both would
constitute, a default by the Company or Manager under this Agreement or under
any other material agreement to which the Company or Manager is a party or by
which its properties may be bound, and (y) would be likely to have a material
adverse effect on Manager, the Business or the Company, or on Manager's ability
to perform its obligations hereunder, giving in each case the details thereof
and specifying the action being taken or proposed to be taken with respect
thereto. Promptly upon receipt thereof, Manager shall deliver to the Company
copies of any material notice or report regarding any License from the grantor
of such license or from any Governmental Authority regarding the Business or the
Company.
(c) Other Information. From time to time and promptly upon
each request, Manager shall provide the Company with such data, certificates,
reports, statements, financial projections, documents or further information
regarding the business, equity owners, assets, liabilities, financial position
or results of operations of Manager, as may be reasonably requested by the
Company.
Section 12. Miscellaneous.
(a) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument.
(b) Construction. Each of the parties hereto acknowledge that
it has reviewed this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendments
thereto. The captions used herein are for convenience of reference only and
shall not affect the interpretation or construction hereof. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular, plural as the context may require. Unless otherwise specified, (i) the
terms "hereof," "herein," and similar terms refer to this Agreement as a whole,
(ii) references herein to Articles or Sections refer to articles or sections of
this Agreement and (iii) the word "including" connotes the words "including
without limitation unless the context requires otherwise.
(c) Benefit; Assignment. This Agreement shall be binding upon
and inure to the benefit of all parties hereto and their respective successors
and permitted assigns; provided, however, that Manager shall not assign or
otherwise transfer its rights and obligations under this
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Agreement (other than to another wholly owned subsidiary of Xxxxxx
Communications Corporation that has substantially the same ability to perform
its obligations hereunder as the original Manager) without the prior written
consent of the Company. The parties agree that, upon any termination of this
Agreement by the Company pursuant to Section 5(b)(i) or Section 5(b)(ii), the
rights and (to the extent provided herein) obligations of Manager shall be
deemed to have been assigned to the New Provider; provided, that no such
termination shall relieve Manager of any liability which at the time of
termination had already accrued to-Manager or which thereafter may accrue in
respect of any act or omission of Manager or its Affiliates prior to such
termination.
(d) Amendment. This Agreement may not be amended except by a
writing signed by each of the parties.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws, and not the laws of conflict, of
the State of Oklahoma.
(f) Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall for any reason or to any
extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but, rather, shall be enforced to the extent permitted by law,
so long as the economic and legal substance of this Agreement and the actions
contemplated hereby is not affected in any manner adverse to either party.
(g) Further Assurances. The parties agree that they will take
all such further actions and execute and deliver all such further instruments
and documents as may be required in order to effectuate the agreements set forth
in this Agreement.
(h) Waiver. No failure or delay on the part of the parties or
any of them in exercising any right, power or privilege hereunder, nor any
course of dealing among the parties or any of them shall operate as a waiver of
any such right, power or privilege nor shall any single or partial exercise of
any such right, power or privilege preclude the simultaneous or later exercise
of any other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and are not exclusive of any rights or remedies, which
the parties or any of them would otherwise have.
(i) Notices. All notices or other communications hereunder
shall be in writing and shall be deemed to have been duly given or made (i) upon
delivery if delivered personally (by courier service or otherwise) or (ii) upon
confirmation of dispatch if sent by facsimile transmission (which confirmation
shall be sufficient if shown on the journal produced by the facsimile machine
used for such transmission), and all legal process with regard hereto shall be
validly served when served in accordance with applicable law, in each case to
the applicable addresses set forth below (or such other address as the recipient
may specify in accordance with this Section):
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If to Manager:
Xxxxxx Cellular Systems, Inc.
c/o Dobson Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Sr. Corporate Counsel
Fax: (000) 000-0000
If to the Company:
American Cellular Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
* * *
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have set their hands effective as of
the date first written above.
COMPANY:
AMERICAN CELLULAR CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
MANAGER:
XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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