Exhibit 10.2
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this
"AGREEMENT") is entered into as of December 16, 2004, by and among SPRINT
SPECTRUM L.P., a Delaware limited partnership ("SPRINT PCS"), SPRINT
COMMUNICATIONS COMPANY L.P., a Delaware limited partnership, WIRELESSCO, L.P., a
Delaware limited partnership, (together with Sprint PCS, the "SPRINT PARTIES,"),
and INDEPENDENT WIRELESS ONE CORPORATION, a Delaware corporation ("IWO"), and
IWO HOLDINGS, INC., a Delaware corporation ("IWO HOLDINGS"), (together with IWO,
the "IWO PARTIES").
IWO entered into a Management Agreement, a Services
Agreement and two Trademark and Service Xxxx License Agreements with the Sprint
Parties, dated and effective as of February 9, 1999 (each agreement, together
with all addenda and amendments, being the "MANAGEMENT AGREEMENT," the "SERVICES
AGREEMENT" and two "TRADEMARK AND SERVICE XXXX LICENSE AGREEMENTS" and
collectively, the "SPRINT AGREEMENTS").
The Parties (in the singular, "PARTY") desire to resolve
and release claims specified in this Agreement, whether known or unknown, that
any Party might have against any of the other Parties that arose on or before
the Effective Date (defined below) of this Agreement, including certain claims
that arise out of any actual or claimed actions or inactions of any Party on or
before the Effective Date of this Agreement, except as provided in this
Agreement. The Parties agree to take the actions set forth in this Agreement to
avoid the expense and delay inherent in further negotiations and possible
litigation concerning their business relationship.
In consideration of the mutual promises set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Parties agree as follows:
1. ADDENDUM. The IWO and the Sprint Parties will execute and deliver
an addendum to the Sprint Agreements in the form attached to this Agreement (the
"ADDENDUM") contemporaneously with the Parties' execution and delivery of this
Agreement.
2. EFFECTIVE DATE.
(A) EFFECTIVE DATE DEFINITION. The Parties are executing
this Agreement as of the date noted above, but the terms of this
Agreement will become effective on the day that all of the conditions
set forth below in Section 2(b) (the "CONDITIONS") are satisfied, or
waived by Sprint PCS and IWO in writing, (the "EFFECTIVE DATE"(1)),
except that Sections 2, 6, 10, 12, 13, 14, 15, 16 and 17 will become
effective immediately upon execution of this Agreement by the IWO
Parties and the Sprint Parties without condition. If the Conditions
are not satisfied or waived by Sprint PCS and IWO in writing by March
15, 2005, this Agreement will become null and void.
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(1) The Parties expect and intend that the Effective Date of this Agreement will
be the Consummation Date of the Plan (as defined below).
(B) CONDITIONS. The following are the Conditions to this Agreement
becoming effective as described above in Section 2(a):
(i) IWO Holdings will have obtained acceptances
from holders of its 14% Senior Notes due 2011 (the "NOTES")
that hold collectively at least two-thirds in dollar amount
and more than one-half in number of the Notes held by
holders that voted to accept or reject the joint plan of
reorganization (the "PLAN") of IWO Holdings and IWO,
pursuant to a solicitation conducted in compliance with all
applicable laws, and IWO and IWO Holdings will have filed
voluntary petitions commencing cases under Chapter 11 of
the Bankruptcy Code (the "BANKRUPTCY CASES") in the United
States Bankruptcy Court for the District of Delaware (the
"BANKRUPTCY COURT").
(ii) The Plan and all accompanying solicitation
and disclosure materials will be acceptable to Sprint PCS
in its reasonable discretion. The Plan will provide for the
approval of the compromise and settlement reflected in this
Agreement and the assumption of the Sprint Agreements, as
amended by the Addendum.
(iii) [Intentionally Omitted].
(iv) In the Bankruptcy Cases,
(A) the Bankruptcy Court will have
granted a motion
(1) authorizing IWO and
IWO Holdings to continue doing
business with the Sprint Parties in
the ordinary course during the
Bankruptcy Cases, and
(2) excusing the Sprint
Parties from compliance with
Sections 2, 4, 6(b) and 6(d) of the
Consent and Agreement dated December
16, 1999, between IWO, the Sprint
Parties and X.X. Xxxxxx Xxxxx, N.A.
(the "CONSENT AND AGREEMENT") until
the earliest of the following dates:
(a) the Effective Date, (b) the date
on which the Bankruptcy Cases are
dismissed, and (c) March 15, 2005;
(B) the Plan will have
been confirmed pursuant to Section
1129 of the Bankruptcy Code, and the
effective date of the Plan will have
occurred;
(C) the Consent and
Agreement will have been terminated
by written agreement of the parties
to that agreement;
(D) all amounts owed to
the Sprint Parties pursuant to the
Sprint Agreements and this Agreement
will have been paid in full; except
any amount owed for the second
"true-up" payment under Section
3(d), and
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(E) all amounts owed to
the IWO Parties pursuant to the
Sprint Agreements and this Agreement
will have been paid in full, except
any amount owed for the second
"true-up" payment under Section
3(d).
(v) The Plan, any disclosure statement filed in
the Bankruptcy Cases pursuant to Section 1125 of the
Bankruptcy Code, and any motion or application filed by IWO
or IWO Holdings in furtherance of the requirements of
Section 2(b)(iv) above will be acceptable to Sprint PCS in
its reasonable discretion.
(vi) Any order confirming the Plan, approving any
disclosure statement, or authorizing any action or relief
described above in Section 2(b)(iv) will be acceptable to
Sprint PCS in its reasonable discretion.
(vii) The IWO Parties will have paid the Sprint
Parties the amounts owed to the Sprint Parties under the
Sprint Agreements after October 31, 2004 (other than
disputed amounts), when due.
(viii) The Sprint Parties will have executed and
delivered to the IWO Parties a "bring-down" release
substantially in the form of Section 4(a) relating to
claims arising on or before the Effective Date; provided,
however, that such "bring-down" release shall not release
(A) any obligations owed under this Agreement, (B) any
obligations arising after October 31, 2004 in the ordinary
course of the Parties' performance under the Sprint
Agreements, or (C) any indemnification claims of the type
referenced in the first clause of Section 5(c).
(ix) The IWO Parties will have executed and
delivered to the Sprint Parties a "bring-down" release
substantially in the form of Section 4(b) relating to
claims arising on or before the Effective Date, which
release will have been approved by the Bankruptcy Court and
will specifically release claims that the IWO Parties'
bankruptcy estates may have or claim to have against the
Sprint Released Parties (as defined below), including but
not limited to claims and causes of action arising under
Chapter 5 of the Bankruptcy Code; provided, however, that
such "bring-down" release shall not release (A) any
obligations owed under this Agreement, (B) any obligations
arising after October 31, 2004 in the ordinary course of
the Parties' performance under the Sprint Agreements, or
(C) any indemnification claims of the type referenced in
the first clause of Section 5(c).
(C) PROCEDURE UPON PARTY'S APPEAL. If any person files an
appeal of the order of the Bankruptcy Court confirming the Plan, the
Sprint Parties and the IWO Parties will cooperate and use
commercially reasonable efforts to challenge or otherwise cause the
withdrawal, dismissal or affirmance of the appeal. None of the Sprint
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Parties or the IWO Parties will cooperate with, facilitate or support
the efforts of any person who files any such appeal.
3. SETTLEMENT PAYMENT; SPRINT PCS "TRUE-UP" PAYMENTS.
(A) IWO SETTLEMENT PAYMENT. IWO, on behalf of itself and
the other IWO Parties will pay Sprint PCS, on its own behalf and on
behalf of the other Sprint Parties, $6,000,000.
(B) SPRINT PCS FIRST "TRUE-UP" PAYMENT. Sprint PCS, on
behalf of itself and the other Sprint Parties, will pay IWO, on its
behalf and on behalf of the other IWO Parties, the amount by which
(i) applying the terms of the Addendum with respect to the monthly
payments that would be paid under the Sprint Agreements (and not with
respect to the weekly management fee payments), (A) the amount Sprint
PCS would have paid IWO under the Sprint Agreements between November
1, 2004, and December 31, 2004 (as reflected in December 2004 and
January 2005 settlement and billing activity), minus (B) the sum of
(1) the amount IWO would have paid Sprint PCS under the Sprint
Agreements between November 1, 2004, and December 31, 2004 (as
reflected in December 2004 and January 2005 settlement and billing
activity), plus (2) $550,000 (for the amounts that Sprint PCS billed
to IWO for services rendered or goods provided before November 1,
2004 that IWO disputed after October 31, 2004 (the "DECEMBER DISPUTED
AMOUNTS"), which are described on Exhibit A to this Agreement),
exceeds (ii) the amount Sprint PCS paid IWO minus the amount IWO paid
Sprint PCS under the Sprint Agreements between November 1, 2004, and
December 31, 2004 (as reflected in December 2004 and January 2005
settlement and billing activity). If the amount represented in clause
(ii) in the preceding sentence is greater than the amount represented
in clause (i) in the preceding sentence, then IWO, on behalf of
itself and the other IWO Parties, will pay Sprint PCS, on its behalf
and on behalf of the other Sprint Parties, the amount of the
difference.
(C) METHOD OF PAYMENT. The payments required under Sections
3(a) and 3(b) will be made on the Effective Date by netting those
amounts. The Party owing the net difference will pay the difference
to the other Party via wire transfer to the account designated by the
receiving Party.
(D) SPRINT PCS SECOND "TRUE-UP" PAYMENT. Sprint PCS, on
behalf of itself and the other Sprint Parties, will pay IWO, on its
behalf and on behalf of the other IWO Parties, for the period between
January 1, 2005 and the last day of the last calendar month for which
the pre-Addendum billing and settlement process was in effect (the
"SECOND TRUE-UP PERIOD"), the amount by which (i) applying the terms
of the Addendum with respect to the monthly payments that would be
paid under the Sprint Agreements (and not with respect to the weekly
management fee payments), the amount Sprint PCS would have paid IWO
minus the amount IWO would have paid Sprint PCS under the Sprint
Agreements during the Second True-up Period (as reflected in the
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settlement and billing activity for February 2005 through the
calendar month after the end of the Second True-up Period), exceeds
(ii) the amount Sprint PCS paid IWO minus the amount IWO paid Sprint
PCS under the Sprint Agreements during the Second True-up Period (as
reflected in the settlement and billing activity for February 2005
through the calendar month after the end of the Second True-up
Period). If the amount represented in clause (ii) in the preceding
sentence is greater than the amount represented in clause (i) in the
preceding sentence, then IWO, on behalf of itself and the other IWO
Parties, will pay Sprint PCS, on its behalf and on behalf of the
other Sprint Parties, the amount of the difference. The payment
required under this Sections 3(d) will be made within 90 days after
the Effective Date. The Party owing the difference will pay the
difference to the other Party via wire transfer to the account
designated by the receiving Party.
4. GENERAL RELEASES.
(A) SPRINT RELEASE OF THE IWO PARTIES. Except as provided
in Section 5, each of the Sprint Parties releases and forever
discharges the IWO Parties and each of their respective officers,
directors, shareholders, partners, members, subsidiaries, employees,
agents and representatives (the "IWO RELEASED PARTIES") from all
liabilities, claims, attorneys' fees, damages, injuries, causes of
action, and losses of any kind that any of the Sprint Parties ever
had, now has, may assert or may in the future claim to have against
any of the IWO Released Parties by reason of any act, failure to act,
cause or matter occurring or existing on or before October 31, 2004,
concerning or related to the Sprint Agreements and the Consent and
Agreement ("SPRINT CLAIMS"); except that the Sprint Parties do not
release, and the Sprint Parties expressly reserve, all Sprint Claims
against any IWO Released Party that arise from or relate to matters
unrelated to the IWO Parties, the Sprint Agreements, the Consent and
Agreement or the Bankruptcy Cases.
(B) IWO RELEASE OF THE SPRINT PARTIES. Except as provided
in Section 5, each of the IWO Parties releases and forever discharges
the Sprint Parties and their respective officers, directors,
shareholders, partners, members, subsidiaries, employees, agents and
representatives (the "SPRINT RELEASED PARTIES") from all liabilities,
claims, attorneys' fees, damages, injuries, causes of action, and
losses of any kind that any of the IWO Parties ever had, now has, may
assert or may in the future claim to have against any of the Sprint
Released Parties by reason of any act, failure to act, cause or
matter occurring or existing on or before October 31, 2004,
concerning or related to the Sprint Agreements and the Consent and
Agreement ("IWO CLAIMS" and together with Sprint Claims, the
"CLAIMS"), except that the IWO Parties do not release, and they
hereby expressly reserve, all IWO Claims against any Sprint Released
Party that arise from or relate to matters unrelated to the Sprint
Parties, the Sprint Agreements, the Consent and Agreement or the
Bankruptcy Cases.
(C) COMPLETE RELEASE. Except as provided in Sections 5 and
13(a), this Agreement constitutes the complete compromise,
settlement, accord and satisfaction of all of the Claims with no
reservation of any rights or claims, whether stated or implied.
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5. EXCEPTIONS TO RELEASED CLAIMS.
(A) RIGHT TO COLLECT BUSINESS ACTIVITY AMOUNTS. The
releases set forth in Section 4 do not affect the Parties' rights to
xxxx, collect and settle amounts for or that relate to services
rendered and goods provided under the Sprint Agreements in the
ordinary course of business and in accordance with past practice,
except with respect to the claims described on Exhibit B to this
Agreement, and except that the terms of the Addendum will be given
effect with respect to business activity after October 31, 2004. IWO
will pay Sprint PCS $550,000 for the the December Disputed Amounts on
the Effective Date in the first "true-up" payment in the manner
described in Section 3(b). The IWO Parties agree that any amounts
described in the two preceding sentences that are not paid by the IWO
Parties to the Sprint Parties before the effective date of the Plan
will not be released by the releases included in or required by this
Agreement. In addition, the IWO Parties acknowledge and agree that
any such unpaid amounts will constitute Allowed Administrative Claims
or Allowed General Unsecured Claims, as such terms are defined in the
Plan, so that notwithstanding the discharge of the IWO Parties'
debts, the Sprint Parties will be entitled to payment of such amounts
in full.
(B) FUTURE CLAIMS. Except as provided in Sections
2(c)(viii), 2(c)(ix) or 5(a), nothing in this Agreement constitutes a
release by any Party of claims arising after October 31, 2004,
including without limitation future claims arising under the
Management Agreement after giving effect to the Addendum that becomes
effective as of the Effective Date.
(C) INDEMNIFICATION. Notwithstanding the releases set
forth in this Agreement, this Agreement does not waive the Sprint
Parties' and the IWO Parties' respective rights and responsibilities
under section 13 of the Management Agreement with respect to
indemnification for claims brought by third parties arising on or
before October 31, 2004, except that this Agreement does waive the
Sprint Parties' and the IWO Parties' respective rights to make
indemnity claims based on the provision of services by third parties
under the Sprint Agreements. No Sprint Party or IWO Party is aware of
any indemnity right that presently exists under section 13 of the
Management Agreement.
(D) MOST FAVORED NATION. This Agreement does not waive,
modify or release any of IWO's rights under the new section 1.10 of
the Management Agreement, even if the changes to an Other Manager's
Management Agreement are in settlement of that Other Manager's claims
that are similar to claims that IWO is releasing under this
Agreement.
6. REPRESENTATIONS AND WARRANTIES. Each of the Parties represents and
warrants to the other Parties that:
(A) it has not commenced any action or proceeding against
any other Party concerning any of the Claims, before any agency or
other governmental authority, at law, in equity, in arbitration, or
otherwise;
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(B) no promise, inducement or agreement not expressed in
this Agreement or the Addendum has been made;
(C) it has the full right, power and authority to enter
into this Agreement, and to perform according to the terms of this
Agreement;
(D) the Party is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization;
(E) neither the execution, delivery and performance of
this Agreement, nor the consummation by the Party of the transactions
contemplated by this Agreement, will conflict with, violate or result
in a breach of:
(i) any law, regulation, order, writ,
injunction, decree, determination or award of any
governmental authority or any arbitrator, applicable to
the Party, or
(ii) any of the terms, conditions or provisions
of the certificate of limited partnership or certificate
or articles of incorporation or bylaws (or other governing
documents) of the Party, or
(iii) any material agreement of the Party, or
(iv) any material instrument to which the Party
is or may be bound or to which any of its material
properties or assets is subject;
(F) it has obtained all necessary consents and approvals
required to enter into this Agreement;
(G) there are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Party, threatened
against or affecting the Party or any of its properties, assets or
businesses in any court or before or by any governmental agency that
could, if adversely determined, reasonably be expected to have a
material adverse effect on the Party's ability to perform its
obligations under this Agreement and the Addendum;
(H) it has negotiated the terms of this Agreement, and
this Agreement is the result of arms-length negotiations between the
Parties and their respective attorneys; and
(I) it has not assigned or otherwise transferred any
interest in any of the Claims.
7. COVENANT NOT TO XXX OR ASSIST THIRD PARTIES. Except for claims for
indemnification and contribution described in Sections 5(d) and 9, no Party will
(a) commence or in any manner seek relief against another Party through any suit
or proceeding arising, based upon, or relating to any of the Claims, or (b)
voluntarily become a party to any suit or proceeding arising from or in
connection with an attempt by or on behalf of any third party to enforce or
collect an amount based on a Claim. Nor will any Party assist the efforts of any
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third party attempting to enforce or collect an amount based on a Claim, unless
required to do so by a court of competent jurisdiction.
8. CONTRACT. The Parties understand that the terms in this Agreement
are binding contractual commitments and not mere recitals, and that the Parties
are not relying upon any statement or representation made by any Party released,
any such Party's agents or attorneys, or any other person, concerning the
nature, extent or duration of any injuries or damages, or concerning any other
thing or matter, but are relying solely and exclusively upon their own
knowledge, belief and judgment.
9. INDEMNIFICATION. The Sprint Parties and the IWO Parties will
indemnify, hold harmless and defend each other against all claims, demands,
judgments, causes of action, losses, costs, damages, penalties, fines, taxes,
expenses or liabilities, including reasonable attorneys' fees and costs of
defense, brought against or incurred by them, arising from or in connection with
an attempt by or on behalf of any third party to enforce or collect an amount
based on a Claim.
10. EXPENSES. The Parties will pay their own expenses and attorneys'
fees incurred in connection with the negotiation and execution of this Agreement
and the Addendum.
11. ADDITIONAL FACTS. The Parties are aware that they may after the
date of this Agreement discover claims or facts in addition to or different from
those they now know or believe to be true with respect to Claims. Nevertheless,
except as set forth in Section 5, it is the intention of the Parties to fully,
finally and forever settle and release all such claims, including claims for
damages and losses that are presently unknown or unanticipated. In furtherance
of this intention, the releases given in this Agreement are and will remain in
effect as full and complete mutual releases of Claims, except as set forth in
Section 5, notwithstanding the discovery or existence of any additional or
different facts relative to them. Each Party assumes the risk of any mistake in
executing this Agreement and furnishing the releases set forth in this
Agreement. Without limiting the generality of the previous sentences in this
Section 11, each Party waives and relinquishes any right or benefit that such
Party has or might have under any provision of statutory or non-statutory law
that might provide that a release does not extend to claims that a person does
not know or suspect to exist at the time of execution of the release that, if
known, would or may have materially affected the decision to give the release.
12. WAIVERS. No waiver by a Party of any breach of or default under
this Agreement will be deemed to be a waiver of any other breach or default of
any kind or nature of this Agreement. No acceptance of payment or performance by
a Party after any such breach or default will be deemed to be a waiver of any
breach or default of this Agreement, whether or not such Party knows of such
breach or default at the time it accepts such payment or performance. No failure
or delay on the part of a Party to exercise any right it might have will prevent
the exercise of that right by that Party at any time the other Party continues
to be in default, and no such failure or delay will operate as a waiver of any
default.
13. ENFORCEMENT OF AGREEMENT; INJUNCTIVE RELIEF.
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(A) The releases given in this Agreement do not include a
release of any liabilities, claims, damages, injuries or losses that
may arise under this Agreement.
(B) Each Party acknowledges and agrees that in the event
of any breach of this Agreement, the non-breaching Party or Parties
may be irreparably harmed and may not be made whole by monetary
damages. Accordingly, the Parties, in addition to any other remedy to
which they may be entitled, will be entitled to seek injunctive or
other equitable relief in any court of competent jurisdiction to the
extent permitted by applicable law.
(C) Each Party waives, to the fullest extent permitted by
law, the right to trial by jury in any legal proceeding arising out
of or relating to the enforcement of this Agreement.
(D) The prevailing Party will be entitled to recover from
the opposing Party its expenses (including reasonable attorneys' fees
and costs) incurred in connection with any claim, action or lawsuit
brought to enforce this Agreement.
14. ASSIGNMENT. No Party may assign any of its rights under this
Agreement or delegate its duties under it to any person or entity not a Party
unless it obtains the prior written consent of the other Parties to this
Agreement, which consent may be withheld at such other Party's absolute
discretion.
15. LIMITATION ON RIGHTS OF OTHERS. Nothing in this Agreement,
whether express or implied, will be construed to give any person other than the
Parties any legal or equitable right, remedy or claim under or in respect of
this Agreement.
16. DISCLOSURE. The parties acknowledge that the terms and provisions
of this Agreement are proprietary but it is understood that its terms and
provisions may and will be disclosed as required to implement the restructuring
of the IWO Parties and such disclosure may include, without limitation, filings
with the SEC and the Bankruptcy Court and distribution to creditors.
17. OTHER PROVISIONS.
(A) GOVERNING LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this
Agreement will be governed by and construed under Kansas law and
applicable bankruptcy law, without giving effect to any choice of law
or conflict of law rules or provisions (whether of Kansas or any
other jurisdiction) that would cause the application of the laws of
any jurisdiction other than Kansas.
(B) JURISDICTION.
(i) During the pendency of the Bankruptcy
Cases, each Party irrevocably and unconditionally submits
to the exclusive jurisdiction of the Bankruptcy Court and
any appellate court from such court, in any suit, action
or proceeding arising out of or relating to this
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Agreement. Before the commencement of the Bankruptcy Cases
or after the effective date of the Plan, each Party
irrevocably and unconditionally submits to the
non-exclusive jurisdiction of (A) any Kansas state court
located in the County of Xxxxxxx or (B) the United States
District Court for the District of Kansas, and any
appellate court from any such court, in any suit, action
or proceeding relating to the Addendum or other course of
dealing between the Parties occurring after such date.
With respect to such suit, action or proceeding
contemplated under this Section 17(b), each Party
irrevocably waives, to the fullest extent permitted by
law, the right to object that such court does not have
jurisdiction over such party.
(ii) Except during the period of the Bankruptcy
Court's exclusive jurisdiction, each Party irrevocably and
unconditionally waives, to the fullest extent it may
legally do so, any objection that it may now or later have
to the venue of any suit, action or proceeding arising out
of or relating to this Agreement in a Kansas state court
located in the County of Xxxxxxx or the United States
District Court for the District of Kansas. Each Party
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.
(C) ENTIRE AGREEMENT; BINDING EFFECT. This Agreement and
the Addendum constitute the entire agreement between the Parties with
respect to the subject matter they cover and supersede all prior
agreements, negotiations, representations and discussions between the
Parties with respect to the subject matter they cover. On the
Effective Date, this Agreement will be binding on and inure to the
benefit of the Parties and their respective successors and assigns.
(D) CONSTRUCTION. The Parties participated in the
negotiation and drafting of this Agreement. If any ambiguity or
question of intent or interpretation arises, the Parties intend that
(i) this Agreement be construed as if they had drafted it together,
and (ii) no presumption or burden of proof arises favoring or
disfavoring any Party by virtue of its role in drafting any provision
of this Agreement. All pronouns and any variations of pronouns used
in this Agreement refer to the masculine, feminine or neuter,
singular or plural as the identity of the person or persons require.
(E) SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision of this Agreement
is illegal, invalid or unenforceable for any reason whatsoever, that
term or provision will be enforced to the maximum extent permissible
so as to effect the intent of the Parties, and such illegality,
invalidity or unenforceability will not affect the validity, legality
or enforceability of the remainder of this Agreement.
(F) AMENDMENT. Any amendment to this Agreement must be in
a written document signed by the Parties and must state the intent of
the Parties to amend this Agreement.
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(G) NO ADMISSION OF LIABILITY. It is expressly understood
and agreed that this Agreement is a compromise of disputed claims and
that execution of, making of payments under, and performing of
obligations under this Agreement are not to be construed as an
admission of liability on the part of any Party.
(H) COUNTERPARTS. This Agreement may be signed in
counterpart or duplicate copy and by facsimile signature, and any
signed counterpart, duplicate or facsimile copy is equivalent to a
signed original for all purposes.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
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EACH PARTY HAS COMPLETELY READ THE TERMS OF THIS AGREEMENT, FULLY UNDERSTANDS
THEM AND VOLUNTARILY ACCEPTS THEM FOR THE PURPOSE OF MAKING FULL AND FINAL
COMPROMISE, ADJUSTMENT AND SETTLEMENT OF ALL CLAIMS, DISPUTED OR OTHERWISE, IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT
The Parties have executed this Agreement on the date first above
written.
SPRINT SPECTRUM L.P.
By:
-------------------------------------------
Name:
Title:
WIRELESSCO, L.P.
By:
-------------------------------------------
Name:
Title:
SPRINT COMMUNICATIONS COMPANY L.P.
By:
-------------------------------------------
Name:
Title:
12
INDEPENDENT WIRELESS ONE CORPORATION
By:
-------------------------------------------
Name:
Title:
IWO HOLDINGS, INC.
By:
-------------------------------------------
Name:
Title:
13
EXHIBIT A
DECEMBER DISPUTED AMOUNTS
BASED ON NOVEMBER, 2004 BILLING AND SETTLEMENT ACTIVITY
------ -------- ---------- ------------ ------------- ---------------- -------------------- ---------------------------------
REGION BUS UNIT ITEM INVOICE DATE DUE DATE INVOICE AMOUNT DISPUTED AMT DISPUTE DESCRIPTION
------ -------- ---------- ------------ ------------- ---------------- -------------------- ---------------------------------
North IW AFS-017139 11/12/04 12/02/04 $ 28,280.59 $ 28,280.59 Virgin True-up MAF issue
North IW AFS-017104 11/08/04 11/28/04 $ 181,420.83 $ (4,531.98) Rebate Xxxxx Xxxxxxx
Xxxxx XX XXX-000000 11/30/04 12/19/04 $ 1,959,259.88 $ 150.00 Aafes-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ 80.00 Partner-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ 990.00 Solution Partners-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ 32,909.00 Radioshack-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ 335.00 Smlbusdlr-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ (3,227.50) Natl 3rdComm-Commissions
North IW AFS-017188 11/30/04 12/19/04 Listed $ 6,810.04 Instant Rebates
North IW AFS-017188 11/30/04 12/19/04 Listed $ 1,979.48 Credit Checks
North IW AFS-017188 11/30/04 12/19/04 Listed $ 830.14 Marketing Collateral Destruction
North IW AFS-017188 11/30/04 12/19/04 Listed $ 318,576.11 Premium Services
North IW AFS-017188 11/30/04 12/19/04 Listed $ 5,435.63 Rebate Admin Expense
North IW AFS-017188 11/30/04 12/19/04 Listed $ 5,065.82 XX Xxxxxx Xxxxxxx
Xxxxx XX XXX-000000 11/30/04 12/19/04 Listed $ 87,431.39 TSI/Illuminet
North IW AFS-017197 11/30/04 12/19/04 $ 593,708.35 $ 331,709.24 XXX-Xxxxxxxx Xxxxxxxx Xxx
Xxxxx XX XXX-000000 11/30/04 12/19/04 Listed $ 117,473.30 XXX-0X Xxx
Xxxxx XX XXX-000000 11/30/04 12/19/04 Listed $ 121,705.10 SBF-IT Fee
$1,052,001.35
14
EXHIBIT B
SPECIFIC RELEASED CLAIMS
INVOICE NUMBER PAID NOT PAID TOTAL
AFS-012924 - 1,159.92 1,159.92
AFS-013060 - 10,588.65 10,588.65
AFS-013210 - 35,290.17 35,290.17
AFS-013336 - 49,852.99 49,852.99
AFS-013432 - 85,221.17 85,221.17
AFS-013523 - 240,265.01 240,265.01
AFS-013563 480,389.52 35,628.29 516,017.81
AFS-013748 483,385.20 42,268.63 525,653.83
AFS-013876 - 540,933.59 540,933.59
AFS-014009 - 554,247.37 554,247.37
AFS-014174 - 565,805.66 565,805.66
AFS-014319 - 3,747.00 3,747.00
AFS-014400 - 135,179.35 135,179.35
AFS-014409 - 575,779.58 575,779.58
AFS-014445 - 306,747.96 306,747.96
AFS-014562 - 78,226.94 78,226.94
AFS-014566 - 582,017.98 582,017.98
AFS-014674 - 18,205.86 18,205.86
AFS-014693 - 12,270.88 12,270.88
AFS-014739 - 93,023.69 93,023.69
AFS-014758 - 588,330.22 588,330.22
AFS-014859 - 245.00 245.00
AFS-014911 - 46,536.99 46,536.99
AFS-014950 - 595,740.39 595,740.39
AFS-014990 - 256,505.91 256,505.91
AFS-015064 - 917,965.52 917,965.52
AFS-015077 1,592.73 99,364.04 100,956.77
AFS-015095 - 602,110.29 602,110.29
AFS-015266 - 38,272.29 38,272.29
AFS-015360 - 83,978.62 83,978.62
AFS-015378 - 652,785.21 652,785.21
AFS-015517 - 134,350.46 134,350.46
AFS-015574 - 158,445.51 158,445.51
AFS-015592 - 645,185.95 645,185.95
AFS-015697 - 261,854.17 261,854.17
AFS-015716 - 483,849.15 483,849.15
AFS-015752 - (1,489,569.86) (1,489,569.86)
AFS-015883 - 198,767.53 198,767.53
AFS-015902 - 499,312.10 499,312.10
AFS-015960 - 48,976.58 48,976.58
AFS-015982 - 174.19 174.19
AFS-015996 - 422,345.04 422,345.04
AFS-016015 - 515,831.17 515,831.17
15
INVOICE NUMBER PAID NOT PAID TOTAL
AFS-016098 - 379,139.73 379,139.73
AFS-016117 - 526,991.30 526,991.30
AFS-016171 - (27,347.34) (27,347.34)
AFS-016249 - 1,545.37 1,545.37
AFS-016265 - 351,579.74 351,579.74
AFS-016284 - 394,802.08 394,802.08
AFS-016310 - 514,588.24 514,588.24
AFS-016321 - 91,059.00 91,059.00
AFS-016326 - 141,020.61 141,020.61
AFS-016373 - 69,727.06 69,727.06
AFS-016392 - 545,018.82 545,018.82
AFS-016620 - 51,812.72 51,812.72
AFS-016639 - 552,684.56 552,684.56
AFS-016766 - 59,031.82 59,031.82
AFS-016785 - 559,729.89 559,729.89
AFS-016835 - 64,705.05 64,705.05
AFS-016854 - 9,717.24 9,717.24
AFS-016980 - 205,880.29 205,880.29
AFS-016985 - 566,213.83 566,213.83
AFS-017066 - 226,791.98 226,791.98
AFS-017079 - 73,319.72 73,319.72
MIS-110299 - 314,849.00 314,849.00
MIS-110410 - 3,302.32 3,302.32
MIS-110636 - 3,297.74 3,297.74
MIS-110932 - 3,266.12 3,266.12
MIS-110949 - 5,188.60 5,188.60
MIS-111158 - 2,130.38 2,130.38
MIS-111182 - 6,440.62 6,440.62
MIS-111371 - 4,996.53 4,996.53
MIS-111553 - 1,109.07 1,109.07
AFS-016918 - 63,833.61 63,833.61
AFS-014336 - (74,016.50) (74,016.50)
------------------- ----------------------- -----------------------
Total 965,367.45 15,420,226.36 16,385,593.81
------------------- ----------------------- -----------------------
16
