SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "AGREEMENT") is
entered into as of September 12, 2003, by and among SPRINT SPECTRUM L.P., a
Delaware limited partnership, SPRINTCOM, INC., a Kansas corporation, SPRINT
COMMUNICATIONS COMPANY L.P., a Delaware limited partnership, WIRELESSCO, L.P., a
Delaware limited partnership (the "SPRINT PARTIES,"), ALAMOSA HOLDINGS, INC., a
Delaware corporation ("ALAMOSA HOLDINGS"), ALAMOSA (DELAWARE), INC., a Delaware
corporation ("ALAMOSA DELAWARE"), and Alamosa Holdings' subsidiaries listed
below in the following paragraph (the "ALAMOSA PARTIES" and together with the
Sprint Parties collectively, the "PARTIES").
The following subsidiaries of Alamosa Holdings (each individually a
"MANAGER" and collectively the "ALAMOSA MANAGERS") have 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 the dates
indicated:
o Alamosa Missouri, LLC (f/k/a Xxxxxxx Wireless Communications, LLC)
(June 8, 1998)
o Southwest PCS, L.P. (July 10, 1998)
o Washington Oregon Wireless LLC (January 25, 1999)
o Alamosa Wisconsin Limited Partnership (December 6, 1999)
o Texas Telecommunications, LP (December 23, 1999)
(each agreement, together with all addenda and amendments, being a "MANAGEMENT
AGREEMENT," a "SERVICES AGREEMENT" and two "TRADEMARK AND SERVICE XXXX LICENSE
AGREEMENTS" and collectively, the "SPRINT AGREEMENTS").
The Parties desire to resolve and release all claims, known or unknown,
any Party might have against any of the other Parties that arose on or before
the date of this Agreement, including all claims that arise out of any actual or
claimed actions or inactions of any Party on or before the date of this
Agreement, except as provided in this Agreement. The Parties have agreed 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. ADDENDA. The Parties will sign and deliver addenda to the Sprint
Agreements in the form attached to this Agreement (the "ADDENDA")
contemporaneously with the Parties' execution and delivery of this Agreement.
2. EFFECTIVE DATE. The parties are executing this Agreement as of the date
noted above, but the terms of this Agreement do not become effective until the
first calendar day of the first calendar month after Alamosa Holdings, Inc. and
Alamosa (Delaware), Inc. consummate the Exchange Offer, the Proposed Amendments
and the amendment of the terms of the Senior Secured Credit Facility, all as
described in the Offer to Exchange of Alamosa Holdings, Inc. and Alamosa
(Delaware), Inc. (the "EFFECTIVE DATE").
3. SETTLEMENT PAYMENT. Alamosa will pay Sprint Spectrum L.P.,
$6,755,261.00 on the Effective Date of this Agreement set forth above in Section
2, via wire transfer to the account designated by Sprint Spectrum.
4. GENERAL RELEASES.
(A) SPRINT RELEASE. Each of the Sprint Parties releases and forever
discharges the Alamosa Parties and their respective officers, directors,
shareholders, partners, members, subsidiaries, employees, agents and
representatives (the "ALAMOSA RELEASED PARTIES") from all liabilities,
claims, damages, injuries 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 Alamosa Released Parties by reason of any act, failure
to act, cause or matter related to the Sprint Agreements, existing on or
before the date of this Agreement, except as set forth in Sections 3 and 6
("SPRINT'S CLAIMS").
(B) ALAMOSA RELEASE. Each of the Alamosa 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, damages, injuries and losses of any kind that any of the Alamosa
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 related to the Sprint Agreements, existing on or
before the date of this Agreement except as set forth in Section 6
("ALAMOSA'S CLAIMS" and together with Sprint's Claims, the "CLAIMS").
(C) COMPLETE RELEASE. This Agreement constitutes the complete
compromise, settlement, accord and satisfaction of all of the Claims,
including without limitation all consequences of the Claims (and the facts
and circumstances underlying the Claims), with no reservation of any rights
or claims, whether stated or implied, except as set forth in Sections 3 and
6.
5. ADDITIONAL SPECIFIC RELEASED CLAIMS.
(A) SPRINT RELEASE. For purposes of clarification, each of the Sprint
Parties intends the general releases in Section 4 to release and forever
discharge each of the Alamosa Released Parties of and from any and all
liabilities, claims, damages, injuries 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 Alamosa Released Parties by reason of any act,
failure to act, cause or matter related to the Sprint Agreements with
respect to any of the matters set forth on Exhibit A to this Agreement, and
waives any and all rights that
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any of the Sprint Parties may have with respect to them, except for the
right to payment set forth in Sections 3 and 6, ("SPRINT'S SPECIFIC
CLAIMS").
(B) ALAMOSA RELEASE. For purposes of clarification, each of the Alamosa
Parties intends the general releases in Section 4 to release and forever
discharge each of the Sprint Released Parties of and from any and all
liabilities, claims, damages, injuries and losses of any kind that any of
the Alamosa 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 related to the Sprint Agreements with
respect to any of the matters set forth on Exhibit A to this Agreement, and
waives any and all rights that any of the Alamosa Parties may have with
respect to them, except for the right to payment set forth in Section 6,
("ALAMOSA'S SPECIFIC CLAIMS" and together with Sprint's Specific Claims,
the "SPECIFIC CLAIMS").
6. EXCEPTIONS TO RELEASED CLAIMS. The Parties do not release each other
under this Agreement with respect to the following Claims:
(A) RIGHT TO COLLECT BUSINESS ACTIVITY AMOUNTS. The Parties are
releasing their right to collect any amounts invoiced or to be invoiced for
fees, credits and business activity arising under any of the Sprint
Agreements before the Effective Date of this Agreement (the "BUSINESS
ACTIVITY AMOUNTS") only with respect to the Specific Claims (as defined in
Section 5). The Parties may xxxx, collect and settle, before and after the
Effective Date, the Business Activity Amounts that accrue before the
Effective Date and that are not Specific Claims, in accordance with the
terms of the Sprint Agreements (without giving effect to the addenda
effective as of the Effective Date) and in accordance with past practice,
notwithstanding the releases set forth in Sections 4(a), 4(b), 4(c) and 5.
(B) TERMINATING AND ORIGINATING ACCESS FEES. The Alamosa Parties have
refunded to the Sprint Parties some but not all of the amounts that the
Sprint Parties paid to the Alamosa Parties for access fees . The Addenda
provide for a new section 10.4.3 to the Management Agreements that set
forth the Parties' rights and obligations respecting access fees. The
Parties do not release each other under this Agreement for their respective
Claims to those amounts or to any other amounts to which they are entitled
under the Management Agreements (after giving effect to the addenda
effective as of the Effective Date) for access fees.
7. REPRESENTATIONS AND WARRANTIES. Each Party 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 or Specific Claims, before any agency or
other governmental authority, at law, in equity, in arbitration, or
otherwise;
(B) no promise, inducement or agreement not expressed in this Agreement
has been made;
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(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 Addenda;
(H) it has negotiated the terms of this Agreement and has participated
in the drafting 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 or Specific Claims.
8. COVENANT NOT TO XXX. The Parties will not commence, join in, assist, or
in any manner seek relief against each other through, any suit or proceeding
arising, based upon, or relating to any of the Claims or Specific Claims.
9. CONTRACT. The Parties understand that the terms in this Agreement are
contractual and not a mere recital, 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 the injuries or damages, or concerning any
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other thing or matter, but are relying solely and exclusively upon their own
knowledge, belief and judgment.
10. INDEMNIFICATION. The Sprint Parties and the Alamosa 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 or Specific Claim.
11. EXPENSES. The Parties will pay their own expenses and attorneys' fees
incurred in connection with the negotiation and execution of this Agreement.
12. 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 and Specific Claims.
Nevertheless, 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, other than Business Activity Amounts
that accrue before the Effective Date and that are not Specific Claims. 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 and Specific
Claims, other than Business Activity Amounts that accrue before the Effective
Date and that are not Specific Claims, 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
foregoing, each Party waives and relinquishes any right or benefit that such
Party has or may have under any provision of statutory or non-statutory law that
may 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.
13. 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 may 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.
14. ENFORCEMENT OF AGREEMENT; INJUNCTIVE RELIEF.
(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
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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) Each breaching Party agrees to reimburse the non-breaching Parties
that prevails in the enforcement of this Agreement for the costs and
expenses, including attorneys' fees, incurred by the non-breaching Parties.
15. 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.
16. 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.
17. CONFIDENTIALITY. The terms and provisions of this Agreement are
confidential and proprietary to the Sprint Parties and to the Alamosa Parties
and are subject to the terms of Section 12.2 of the applicable Management
Agreement between the Parties.
18. 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, 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) Each Party irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any Kansas state
court located in the County of Xxxxxxx or any Federal court of the United
States of America located in the District of Kansas, and any appellate
court from any such court, in any suit action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any
judgment. Each Party irrevocably and unconditionally agrees that all claims
in respect of any such suit, action or proceeding may be heard and
determined in such Kansas state court or, to the extent permitted by law,
in such Federal court.
(ii) 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 laying of venue of any suit, action or proceeding arising out
of or relating to
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this Agreement in Kansas state court located in the County of Xxxxxxx or
any Federal court located in 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 and further waives the right to object, with respect to such
suit, action or proceeding, that such court does not have jurisdiction over
such party.
(C) ENTIRE AGREEMENT; BINDING EFFECT. This Agreement constitutes the
entire agreement between the Parties and supersedes all prior agreements,
negotiations, representations and discussions between the Parties with
respect to the subject matter it covers. This Agreement is binding on and
inures 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 arise 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 and the Addenda is
intended to be severable. If any term or provision of this Agreement or the
Addenda 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 or Addenda.
(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.
(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 the 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.
The Parties have executed this Agreement on the date first above
written.
zzzzz
SPRINT SPECTRUM L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Affiliations, PLS & ICS
SPRINTCOM, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Affiliations, PLS & ICS
WIRELESSCO, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Affiliations, PLS & ICS
SPRINT COMMUNICATIONS
COMPANY L.P.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President - Communication
& Brand Management
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ALAMOSA HOLDINGS, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxxx, President
ALAMOSA (DELAWARE), INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxxx, President
TEXAS TELECOMMUNICATIONS, LP
a Texas limited partnership
By: ALAMOSA DELAWARE GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxxx
President
ALAMOSA MISSOURI, LLC
a Missouri limited liability company
By: ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx,
President
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WASHINGTON OREGON WIRELESS, LLC
a Delaware limited liability company
By: ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx,
President
SOUTHWEST PCS, L.P.
an Oklahoma limited partnership
By: SWGP, L.L.C.
an Oklahoma limited liability company,
as its general partner
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx,
Manager
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
a Wisconsin limited partnership
By: ALAMOSA WISCONSIN GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx,
President
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EXHIBIT A
I. CLAIMS THAT ARE BEING RELEASED IN CONNECTION WITH THE SETTLEMENT
PAYMENT UNDER THIS AGREEMENT:
o All claims in connection with the following 3G Service Bureau
invoiced fees:
> AFS-012925
> AFS-012926
> AFS-012927
> AFS-012928
> AFS-012929
> AFS-013031
> AFS-013032
> AFS-013064
> AFS-013065
> AFS-013066
> AFS-013214
> AFS-013215
> AFS-013216
> AFS-013217
> AFS-013218
> AFS-013337
> AFS-013338
> AFS-013339
> AFS-013340
> AFS-013341
> AFS-013433
> AFS-013434
> AFS-013435
> AFS-013436
> AFS-013437
> AFS-013555
> AFS-013556
> AFS-013557
> AFS-013558
> AFS-013559
> AFS-013750
> AFS-013751
> AFS-013752
> AFS-013754
> AFS-013755
> AFS-013879
> AFS-013880
> AFS-013881
> AFS-013882
> AFS-013883
> AFS-014003
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EXHIBIT A, CONTINUED
o (Continued from previous page of Exhibit A, ending with invoice number
AFS-014003.) All claims in connection with the following 3G Service Bureau
invoiced fees:
> AFS-014004
> AFS-014005
> AFS-014006
> AFS-014007
> AFS-014167
> AFS-014168
> AFS-014169
> AFS-014170
> AFS-014171
> AFS-014405
> AFS-014411
> AFS-014412
> AFS-014413
> AFS-014415
o All claims in connection with the following disputed software license
invoiced fees:
> AFS-012802
> AFS-012803
> AFS-012804
> AFS-013896
> AFS-013900
> AFS-014442
> AFS-014447
> AFS-012801
> AFS-013377
o All claims in connection with the following invoices for recovery of
terminating access revenues:
> MIS-110293
> MIS-110303
> MIS-110305
> MIS-110307
> MIS-110294
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EXHIBIT A, CONTINUED
II. CLAIMS THAT HAVE BEEN PREVIOUSLY SETTLED:
o All claims in connection with charges generated by IT Ad Hoc Reports
existing prior to February 4, 2003.
o All claims existing prior to this Agreement in connection with the
maintenance, upgrade and servicing of the Core Applications prior to April
28, 2003.
o All claims in connection with any outstanding Microwave Relocation charges
and Microwave Relocation credits existing prior to January 29, 2003.
o All claims in connection with years 2001 and 2002 NPA Education charges
existing prior to October 24, 2003.
o All claims in connection with unpaid utility charges billed prior to
September 26, 2002.
o All claims in connection with subscriber merchandise equipment logistics and
distribution charges existing prior to June 18, 2003.
o All claims in connection with WIP switch equipment, labor and tax charges
prior to May 20, 2003.
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