Exhibit 10.21
AFFILIATED INTEREST AGREEMENT
between
D&E TELEPHONE COMPANY
and
D&E WIRELESS, INC.
November 11, 1997
Affiliated Interest Agreement
D&E Telephone and D&E Wireless
TABLE of CONTENTS
INTRODUCTION..................................................................1
Section 1.0 SERVICES........................................................2
1.1 EXECUTIVE OFFICERS..............................................2
1.2 ADMINISTRATIVE..................................................2
1.3 ENGINEERING.....................................................3
1.4 SUPPORT, OPERATIONS AND MAINTENANCE EMPLOYEES...................3
1.5 EMPLOYEE SERVICES...............................................3
1.6 MARKETING, ADVERTISING AND PUBLIC RELATIONS.....................4
1.7 ACCOUNTING......................................................4
1.8 CORPORATE SECRETARIAL...........................................4
1.9 TREASURY........................................................4
1.10 PURCHASING......................................................5
1.11 INSURANCE.......................................................5
1.12 INFORMATION SYSTEMS.............................................5
1.13 CHARGES AND RATES...............................................5
1.14 CONSULTATIVE AND PROFESSIONAL SERVICES..........................5
Section 2.0 SALES AND SERVICE ASSISTANCE...................................5
Section 3.0 COMPENSATION...................................................6
Section 4.0 D&E WIRELESS RESPONSIBILITY TO D&E TELEPHONE...................6
Section 5.0 D&E TELEPHONE'S DUTY TO PROVIDE SERVICE TO THE PUBLIC..........6
Section 6.0 TERM OF AGREEMENT..............................................7
Section 7.0 RELEASE........................................................7
Section 8.0 INDEMNIFICATION................................................7
Section 9.0 SEVERABILITY...................................................7
Section 10.0 NONASSIGNABILITY...............................................9
Affiliated Interest Agreement
D&E Telephone and D&E Wireless
AFFILIATED INTEREST AGREEMENT
between
D&E TELEPHONE COMPANY
and
D&E WIRELESS, INC.
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INTRODUCTION
This Agreement, dated November 11, 1997, is between DENVER AND EPHRATA
TELEPHONE AND TELEGRAPH COMPANY (hereinafter "D&E Telephone"), a Pennsylvania
corporation and D & E WIRELESS, INC. (hereinafter "D&E Wireless"), a
Pennsylvania corporation, and is for purposes of setting forth various services
to be provided by D&E Telephone to D&E Wireless.
WHEREAS, D&E Telephone is an operating public utility which provides
telecommunications services within portions of Lancaster, Lebanon and Berks
Counties in the Commonwealth of Pennsylvania and is subject to Pennsylvania
Public Utility Commission jurisdiction; and
WHEREAS, D&E Wireless is a telecommunications company providing
wireless personal communications service in portions of Pennsylvania pursuant to
authority granted by the Federal Communications Commission; and
WHEREAS, D&E Telephone and D&E Wireless are wholly-owned subsidiaries
of D&E Communications, a holding company incorporated in the Commonwealth of
Pennsylvania; and
WHEREAS, D&E Telephone renders telecommunications services through its
own staff and facilities and through interconnections with the facilities of
other companies; and
WHEREAS, D&E Telephone is able to provide services and equipment to
assist in the furtherance of the business purposes of D&E Wireless;
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
NOW WHEREFORE, in consideration of the mutual promises expressed
herein, and intending to be legally bound hereby, D&E Telephone and D&E Wireless
agree as follows:
Section 1.0 SERVICES. Subject to the terms and conditions of this
Agreement, D&E Telephone and D&E Wireless shall make available
to each other, as needed, the services listed in this Section,
paragraphs 1.1 through 1.14 for the duration of this
Agreement. Either party, with the consent of the other party,
may engage a nonaffiliated company or person to provide any
services covered by this Section.
1.1 EXECUTIVE OFFICERS. Upon request of D&E Wireless, D&E
Telephone shall make certain of its qualified
employees available to become officers of D&E
Wireless. Such employees may be appointed by the
board of directors of D&E Wireless to positions of
president, vice president, secretary, chief financial
officer and treasurer or assistants and to such other
positions within D&E Wireless as the board may
designate.
1.2 ADMINISTRATIVE. As requested, D&E Telephone shall
make qualified employees available to perform or
assist in the performance of management and
supervisory duties on behalf of D&E Wireless. In
order to render such service and to promote the
efficient and economic operation of D&E Wireless,
such employees shall keep themselves informed on all
aspects of D&E Wireless's operations. Such personnel
shall make recommendations for operating
expenditures, additions to and improvements of
property, plant and equipment, and any other aspect
of operations within the scope of their
responsibilities. As requested, such personnel shall
also assist D&E Wireless in the conduct of,
proceeding before, and in its compliance with the
requirements of local, state, and federal regulatory
bodies having jurisdiction over D&E Wireless in its
business operations.
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
1.3 ENGINEERING. As requested, D&E Telephone shall advise
and provide engineering services to D&E Wireless in
planning, operating, maintenance, technical, and
construction functions. As requested, D&E Telephone
engineering personnel and consultants shall assist
D&E Wireless by reviewing operating procedures, and
preparing and reviewing surveys, maps, charts,
operating statistics, reports and pertinent technical
data. D&E Telephone personnel shall assist D&E
Wireless in the proper maintenance and protection of
its properties and by such periodic inspections as
may be requested. Such engineering services may also
include the conduct of field investigations as
necessary to obtain engineering information and, when
required, the preparation of studies, reports,
designs and drawings, cost estimates, and
specifications for implementation of D&E Wireless
services or the construction of additions to or
improvements of D&E Wireless properties.
1.4 SUPPORT, OPERATIONS AND MAINTENANCE EMPLOYEES. As
requested, D&E Telephone shall furnish support,
operations and maintenance employees for D&E
Wireless, including hourly employees, as well as
salaried employees and shall supervise such employees
to assure the proper performance of their duties and
the efficient operation of D&E Wireless's facilities.
1.5 EMPLOYEE SERVICES. As requested, D&E Telephone shall
assist D&E Wireless in the procurement of qualified
personnel, in the establishment of appropriate rates
of pay and in negotiations with bargaining programs
for supervision of training and educational
assistance, and shall advise D&E Wireless on federal,
state, and local regulations affecting personnel. As
requested, D&E Telephone shall recommend and
administer group insurance, benefit and pension plans
for the benefit of D&E Wireless. It may also assist
in the establishment of accident prevention and other
programs relating to employee health and welfare.
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
1.6 MARKETING, ADVERTISING AND PUBLIC RELATIONS. As
requested, D&E Telephone shall recommend procedures
to promote good customer and public relations and
assist in marketing, advertising, and promotional
efforts of D&E Wireless.
1.7 ACCOUNTING. As requested, D&E Telephone shall keep
the general books of account of D&E Wireless,
including records supplemental thereto, and prepare
annual financial statements and analyses of accounts
of D&E Wireless and special accounting and financial
reports required by D&E Wireless. Also, D&E Telephone
shall prepare reports on the costs incurred for
property and improvements and will establish
accounting records as requested. Upon request, D&E
Telephone shall prepare, or assist in the preparation
of federal, state, and local tax returns for and to
the extent required by D&E Wireless.
1.8 CORPORATE SECRETARIAL. Upon request, D&E Telephone
shall maintain documents of D&E Wireless, such as
minute books, charters, bylaws, contracts, deeds and
other corporate records and shall administer an
orderly program of records retention. It shall
perform other corporate secretarial functions as
required, including preparation of notices of
stockholder and director meetings and keeping the
minutes thereof. D&E Telephone shall review, and may
assist in the preparation of, documents required by
D&E Wireless such as deeds, easements, contracts,
licenses, charters, franchises, permits and
regulatory reports.
1.9 TREASURY. If requested by D&E Wireless, D&E Telephone
shall coordinate financial arrangements with the
financial community to arrange and provide for
furnishing of D&E Wireless's entire capital needs
from other than internally generated sources.
Further, either party may, at the other party's
request and contingent upon the availability of
funds, make capital advances to the other at
prevailing interest rates and payable upon demand to
be utilized in satisfying short-term bank loans and
other corporate purposes.
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
D&E Telephone, upon request, shall assist D&E
Wireless in cash management, collection policies, and
the development of investment programs.
1.10 PURCHASING. Upon request, D&E Telephone shall
endeavor to arrange for the purchase of equipment,
materials, supplies and services in volume on a basis
advantageous to D&E Wireless.
1.11 INSURANCE. Upon request, D&E Telephone shall review
the insurance coverage of D&E Wireless, recommend the
types and limits of insurance adequate for its
protection, and assist in the placement of such
insurance. As required by D&E Wireless, it shall
supervise investigation procedures and review claims
and proposals for settlement.
1.12 INFORMATION SYSTEMS. D&E Telephone shall make
available to D&E Wireless such electronic data
processing services, including system analysis and
programming, that may be requested by D&E Wireless.
1.13 CHARGES AND RATES. D&E Telephone, as requested, shall
advise and assist in the preparation and collection
of charges and rates for D&E Wireless services and
render advice with respect to the procedure therefor.
1.14 CONSULTATIVE AND PROFESSIONAL SERVICES. Upon request,
D&E Telephone in addition shall make available to D&E
Wireless such technical, advisory, consultative,
legal, and professional services as may be necessary
to assist D&E Wireless in its corporate operations
and in achieving its business purposes, goals, and
commitments.
Section 2.0 SALES AND SERVICE ASSISTANCE. Consistent with the provisions
of Section 1 of this Agreement, D&E Telephone shall make
available to D&E Wireless such personnel, services, and
equipment as may be requested to
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
assist D&E Wireless in its sales, rentals, and service
activities relating to the provision of wireless equipment,
systems and services for business and residential subscribers
and relating to its other business endeavors.
Section 3.0 COMPENSATION. In consideration for the services and equipment
provided by D&E Telephone to D&E Wireless under Section 1 and
Section 2, unless subject to applicable tariff, D&E Wireless
shall pay the market rate when a market exists for such
services and equipment. Otherwise, D&E Wireless shall pay the
cost incurred by D&E Telephone for such services and
equipment, including the salary, wages, fee, and fringe
benefit costs of D&E Telephone attributable to rendering said
services, and including any rental expense for equipment, plus
reimbursement for interest, taxes, carrying costs, and
depreciation where D&E Telephone incurs such costs. To the
extent that in D&E Telephone's rendition of services or
provision of equipment to D&E Wireless, an element of cost
cannot be directly assigned to one party or the other, then
the cost shall be allocated between the parties in accordance
with generally accepted accounting principles.
3.1 The foregoing costs shall be incurred by D&E
Telephone consistent with such cost accounting
requirements as may be imposed by the Pennsylvania
Public Utility Commission relating to transactions
between a regulated telephone company and its
affiliate.
Section 4.0 D&E WIRELESS RESPONSIBILITY TO D&E TELEPHONE. As
requested, D&E Wireless, from time to time, may transfer, sell
or lease property and equipment to D&E Telephone for use by it
in its business endeavors. If such property and equipment is
transferred, sold or leased for use in a regulated activity of
D&E Telephone, then such transfer, sale or lease shall be
accomplished consistent with such cost accounting requirements
as may be imposed by the Pennsylvania Public Utility
Commission relating to transactions between a regulated
telephone company and its affiliate.
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
Section 5.0 D&E TELEPHONE'S DUTY TO PROVIDE SERVICE TO THE PUBLIC. D&E
Telephone's obligations under this Agreement shall remain
subordinate to and shall not interfere with its duty to
provide public utility service to the public pursuant to the
Public Utility Code, 66 Pa. ▇.▇.▇▇.▇▇. 101 et seq.
Section 6.0 TERM OF AGREEMENT. After execution, this Agreement shall take
effect upon the obtaining of any required regulatory approvals
including that of the Pennsylvania Public Utility Commission.
This Agreement shall continue in full force and effect until
terminated upon ninety (90) days written notice effective when
sent. If there is a material breach of a term or condition by
a party, then this Agreement may be terminated by the other
party upon five (5) days written notice effective when sent.
In the event that D&E Telephone and D&E Wireless shall cease
to be affiliates subject to majority ownership or control of
D&E Communications, Inc., then D&E Telephone shall have the
right to terminate this Agreement upon five (5) days written
notice effective when sent.
Section 7.0 RELEASE. Neither D&E Telephone nor D&E Wireless shall be
liable to the other for any special, incidental or
consequential damages of any nature or for any reason, even if
advised of the possibility of such damages, nor, except to the
extent explicitly provided for herein, for any claims of any
nature against the other by any third party.
Section 8.0 INDEMNIFICATION. To the extent not prohibited by law, and
except as otherwise provided herein, each party shall
indemnify and hold harmless the other party from and against
any loss, costs, claim, injury or liability asserted by any
person not a party hereto against the indemnified party, its
directors, officers, employees, or agents which relates to or
arises out of the negligent or intentional acts of the
indemnifying party or its employees, agents or contractors
taken in connection with the actions under this Agreement.
Section 9.0 SEVERABILITY. In the event that one or more of the provisions
contained herein shall, for any reason, be held to be
unenforceable in any respect, such
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if the
unenforceable provision had not been contained herein.
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Affiliated Interest Agreement
D&E Telephone and D&E Wireless
Section 10.0 NONASSIGNABILITY. Neither party shall assign any right or
duties stated under this Agreement without the written consent
of the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
in their respective corporate names by their duly authorized officers and
attested to by their secretaries, as of the date first above written.
By: By:
DENVER AND EPHRATA TELEPHONE D & E WIRELESS, INC.
AND TELEGRAPH COMPANY
/s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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G. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer Chief Executive Officer
Attest:
Attest:
/s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President & Corporate Secretary Corporate Secretary
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AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF LANCASTER :
:
G. ▇▇▇▇▇▇▇ ▇▇▇▇, being duly sworn according to law, deposes
and says that he is Chief Executive Officer of DENVER AND EPHRATA TELEPHONE AND
TELEGRAPH COMPANY; that he does verify this document to be a true and correct
copy of the original Agreement between the DENVER AND EPHRATA TELEPHONE AND
TELEGRAPH COMPANY and D & E WIRELESS, INC.
/s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇
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G. ▇▇▇▇▇▇▇ ▇▇▇▇
Sworn and subscribed
before me this 11th day
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of November , 1997
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Notary Public
My commission expires: February 24, ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ :
: SS.
COUNTY OF LANCASTER :
:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, being duly sworn according to law, deposes
and says that he is Chief Executive Officer of D & E WIRELESS, INC.; that he
does verify this document to be a true and correct copy of the original
Agreement between the DENVER AND EPHRATA TELEPHONE AND TELEGRAPH COMPANY and
D & E WIRELESS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Sworn and subscribed
before me this 13th day
----
of November , 1997
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Notary Public
My commission expires: September 8, 1999
