WIRELESSCO AFFILIATION AGREEMENT

EXHIBIT 10.5



WIRELESSCO AFFILIATION AGREEMENT





THIS WIRELESSCO AFFILIATION AGREEMENT is entered into as of the 9 day of January, 1995, by and between WIRELESSCO, L.P., a Delaware limited partnership ("WirelessCo"), and AMERICAN PCS, L.P., a Delaware limited partnership ("APC, L.P.").





W I T N E S S E T H:





WHEREAS, APC, L.P. holds the License and intends to build out, own, operate, manage and maintain a PCS system in the Washington-Baltimore MTA under the License; and



WHEREAS, APC, L.P. has determined that it is in the best interests of APC, L.P. and its future subcribers to operate such PCS system as an affiliate of a seamless, integrated national wireless services network offering uniform and consistent products and services to customers under a single national brand, particularly in light of the national alliances being formed by APC, L.P.'s competitors; and



WHEREAS, WirelessCo intends to establish the WirelessCo Network as a national wireless services network offering seamless, integrated voice and data services using wireless technology, and to present such services to customers of the WirelessCo Network in a seamless, integrated, cohesive and consistent manner under a single national brand, the Sprint Brand; and



WHEREAS, APC, L.P. wishes to enter into this Affiliation Agreement in order to become an affiliate of such WirelessCo Network, and WirelessCo desires to have APC, L.P. become an affiliate of the WirelessCo Network in accordance with the terms of this Affiliation Agreement; and



WHEREAS, the parties recognize that, in order to establish and operate the WirelessCo Network successfully by providing such seamless, integrated voice and data services and presenting such services to customers in a seamless, integrated, cohesive and consistent manner, it is essential that all affiliates of the WirelessCo Network, including APC, L.P., operate in accordance with minimum standards and guidelines established by WirelessCo with respect to certain aspects of wireless products and services and the presentation of such products and services to customers; and



WHEREAS, WirelessCo desires to obtain the benefit of APC, L.P.'s technological developments, particularly its PathGuard technology, by having such developments available to it on a non-exclusive basis to assist in its implementation of a nationwide PCS network;

NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein contained, the sufficiency of which are hereby acknowledged, the Parties hereto, intending to be bound, agree as follows:





ARTICLE 1



Section 1.1 Capitalized words and phrases used in this Agreement have the following meanings:



"Agreement" means this WirelessCo Affiliation Agreement, including all

--------- Exhibits hereto, as amended from time to time.



"APC, L.P." means American PCS, L.P., a Delaware limited partnership.

---------



"APC Network" means the PCS network to be developed and operated by

----------- APC, L.P. in the Washington-Baltimore MTA pursuant to the License.



"Buildout Implementation Schedule" means APC, L.P.'s schedule setting

-------------------------------- forth the specifications and timetable for buildout of the APC Network, which schedule is attached hereto as Exhibit 9.1.

-----------



"Business Day" means a day of the year on which banks are not required

------------ or authorized to close in the State of New York.



"Confidential Information" means any information that a Party keeps,

------------------------ or is required to keep, confidential.



"Default Rate" means an arm's-length rate of interest that would apply

------------ to a loan from WirelessCo to APC, L.P. in the amount subject to the Default Rate; that is, a rate of interest not less favorable to APC, L.P. and WirelessCo than that generally available in comparable transactions among unaffiliated parties and consistent with FCC rules and regulations.



"FCC" means the Federal Communications Commission.

---



"GAAP" means generally accepted accounting principles, consistently

---- applied.



"Governmental Authority" means any foreign, federal, state or local

---------------------- court, administrative agency, board, bureau or commission or other governmental department, authority or instrumentality.





"IXC Service Provider" means any interexchange carrier or provider

-------------------- (other than WirelessCo or Sprint), including AT&T Corp., MCI Communications Corporation and British Telecommunications plc and their respective Related Parties.



"License" means the 30 MHz Block "A" PCS license for the Washington-

------- Baltimore MTA held by APC, L.P. and such 10 MHz PCS licenses within the Washington-Baltimore MTA as APC, L.P. may hereafter acquire.



"Major Ownership Change" means, with respect to American Personal

---------------------- Communications, Inc., an event or series of events which result in more than fifty percent (50%) of the outstanding voting securities of American Personal Communications, Inc. being owned by Persons other than (i) the current stockholders of American Personal Communications, Inc. and their immediate families, (ii) Persons who currently are officers or directors of American Personal Communications, Inc. or APC, L.P. and their immediate families, and (iii) trusts for the benefit of any of the foregoing Persons. With respect to APC, L.P., a "Major Ownership Change" shall mean an event or series of events which result in more than fifty percent (50%) of the outstanding equity interests of APC, L.P. being owned by Persons other than WirelessCo and American Personal Communications, Inc.



"MajorCo" means an entity to be formed as a Related Party of

------- WirelessCo which will to enter into the Master Services Agreement.



"Marketing Communications Guidelines" has the meaning set forth in

----------------------------------- Section 1.1 of the Sprint Trademark License Agreement.



"Master Services Agreement" means that certain Master Services

------------------------- Agreement to be entered into between Sprint and MajorCo after the date hereof, pursuant to which Sprint will furnish certain network services to MajorCo and certain of MajorCo's Related Parties, including WirelessCo, as amended from time to time thereafter (it is possible that WirelessCo will enter into the Master Services Agreement directly with Sprint).



"MTA" means a Major Trading Area as defined in the FCC rules to be

--- codified at 47 C.F.R. Section 24.13.



"National Accounts Guiding Principles" means those principles set

------------------------------------ forth on Exhibit 7.2 attached hereto which shall be used to formulate the

----------- initial terms and conditions of the WirelessCo National Accounts Program pursuant to Section 7.2 hereof.



"Parties" means WirelessCo and APC, L.P. and "Party" means WirelessCo

------- or APC, L.P., as the context may require.





"PCS" means radio communications services authorized under the rules

--- for broadband personal communications services designated as Subpart E of Part 24 of the FCC's rules, including the marketing, distribution, sales, customer interface and operations functions relating thereto.



"Person" means any individual, partnership, corporation, trust, or

------ other entity.



"Rand-McNally Population Survey" means the most recent population

------------------------------ survey published by Rand-McNally, or, in the event Rand-McNally no longer publishes such surveys, the most recent population survey published by any successor organization to Rand-McNally or organization similar to Rand-McNally.



"Related Party" means, with respect to any Person, any other Person

------------- that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such Person. For purposes of this definition, the term "controls" (including its correlative meanings "controlled by" and "under common control with") shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.



"Sprint" means Sprint Communications Company, L.P., a Delaware limited

------ partnership.



"Sprint Brand" means the trademark "Sprint" together with the related

------------ "Diamond" logo.



"Sprint Trademark License Agreement" means that certain Sprint

---------------------------------- Trademark License Agreement between Sprint and APC, L.P., dated as of the date hereof, as the same may be amended from time to time hereafter.



"Transfer" means, as a noun, any sale, exchange, assignment or

-------- transfer and, as a verb, to sell, exchange, assign or transfer.



"Washington-Baltimore MTA" means the MTA encompassing Washington, D.C.

------------------------ and Baltimore, Maryland, which MTA is identified in the FCC Public Notice regarding the PCS Auction as Market No. M-10 (Report No. 94-04, Auction No. 4).



"WirelessCo" means WirelessCo, L.P., a Delaware limited partnership.

----------



"WirelessCo Affiliate" means any Person with which WirelessCo has

-------------------- entered into an affiliation arrangement pursuant to which such Person has affiliated with WirelessCo and such Person's wireless network has been integrated with, and into, the WirelessCo Network on terms substantially similar to those set forth herein.





"WirelessCo Customer Service Standards" means those customer service

------------------------------------- standards developed by WirelessCo with respect to customer service and maintenance as described in Section 10.2 hereof, as the same may be amended from time to time by WirelessCo.



"WirelessCo National Accounts Program" means the program maintained by

------------------------------------ WirelessCo with respect to national accounts development, maintenance and management, as the same may be amended from time to time by WirelessCo.



"WirelessCo Network" means the national wireless network to be

------------------ developed by WirelessCo and the WirelessCo Affiliates in the United States and its territories and possessions (excluding Puerto Rico), which network shall include the APC Network.



"Wireless Products and Services" means those wireless products and

------------------------------ services marketed, promoted, advertised, distributed, leased or sold by APC, L.P. from time to time during the term of this Agreement.



"WirelessCo Products and Services" means those wireless products and

-------------------------------- services designated by WirelessCo as products and services to be offered by WirelessCo and all WirelessCo Affiliates as the products and services of the WirelessCo Network.





Section 1.2 Additional Definitions.

----------------------



Defined Term Defined in

------------ ----------



"Affiliation Fee" Section 13.2

"Allocable Expenses" Section 13.2

"Allocation Percentage" Section 13.2

"Allocation Period" Section 13.2

"APC Capital Investment" Section 13.2

"APC Customers" Section 13.2

"APC Gross Revenues" Section 13.2

"APC Network POPs" Section 13.2

"Bankruptcy" Section 14.3(f)

"BTA" Section 13.2

"Capital Investment Percentage" Section 13.2

"Customer Percentage" Section 13.2

"Direct Costs" Section 13.2

"Event of Termination" Section 14.3

"Initial Term" Section 14.1

"IT" Section 2.1

"Involuntary Bankruptcy" Section 14.3(f)





"Network Capital Investment" Section 13.2

"Network Customers" Section 13.2

"Network Gross Revenues" Section 13.2

"Network POPs" Section 13.2

"PCS Auction" Section 13.2

"PCS License" Section 13.2

"Platform" Section 11.1

"Pre-Auction WirelessCo Network

Transition Period" Section 13.2

"POPs" Section 13.2

"POPs Percentage" Section 13.2

"Post-Auction WirelessCo Network

Transition Period" Section 13.2

"Reimbursable Costs" Section 13.2

"Revenue Percentage" Section 13.2

"Technical Standards" Section 8.1

"Voluntary Bankruptcy" Section 14.3(f)

"WirelessCo Network Transition Period" Section 13.2

"WirelessCo Network Transition Period

Allocation Percentage" Section 13.2





Section 1.3 Terms Generally.

---------------



The definitions in Section 1.1 and those contained elsewhere in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The words "herein," "hereof" and "hereunder" and words of similar import refer to this Agreement (including the Exhibits hereto) in its entirety and not to any part hereof unless the context shall otherwise require. All references herein to Articles, Sections and Exhibits shall be deemed references to Articles and Sections of, and Exhibits to, this Agreement unless the context shall otherwise require. Unless the context shall otherwise require, any references to any agreement or other instrument or statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any corresponding provisions of successor statutes or regulations). Any reference in this Agreement to a "day" or number of "days" (without the explicit qualification of "Business") shall be interpreted as a reference to a calendar day or number of calendar days. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice shall be deferred until, or may be taken or given on, the next Business Day.





ARTICLE 2



Section 2.1 Purpose. The foundation of the WirelessCo Network

------- and the essence of this Affiliation Agreement is the adherence to the standards established by WirelessCo to ensure uniform and consistent operation of all wireless systems within the WirelessCo Network and the presentation of the products and services of the WirelessCo Network to customers in a uniform and consistent manner under the Sprint Brand; including (i) offering and promoting, at a minimum, all products and services designated by WirelessCo as products and services of the WirelessCo Network; (ii) adherence to minimum product and quality standards and technical standards established by WirelessCo in order to ensure seamless interoperability throughout each of the systems comprising the WirelessCo Network (permitting any customer of the WirelessCo Network to roam throughout the WirelessCo Network), and uniformity and consistency of product quality; (iii) adherence to minimum customer service standards established by WirelessCo; (iv) use of the WirelessCo information technology ("IT") platforms in order to ensure uniform operations and consistency in interactions with customers (including billing, customer service operations, etc.); and (v) adherence to standards and guidelines relating to the marketing and promotion of products and services under the Sprint Brand. The manner and means of ensuring compliance with such standards and guidelines, as well as the terms upon which its services shall be offered to subscribers and the prices it shall charge for such services, shall be within the sole discretion of APC, L.P.





ARTICLE 3

USE OF SPRINT BRAND



Section 3.1 Use of Sprint Brand.

-------------------



(a) Except as the Parties may otherwise agree in writing, APC, L.P. shall use the Sprint Brand exclusively in connection with the marketing, promotion, advertisement, distribution, lease or sale of any Wireless Products and Services. In connection with the execution and delivery of this Agreement, APC, L.P. shall enter into the Sprint Trademark License Agreement, the terms of which shall govern APC, L.P.'s use of the Sprint Brand.



(b) Except as the Parties may otherwise agree in writing, APC, L.P. shall not market, promote, advertise, distribute, lease or sell on a non-branded or "private label" basis any Wireless Product or Service or otherwise market, promote, advertise, distribute, lease or sell any Wireless Product or Service under any brand, trademark, tradename or trade dress other than the Sprint Brand.



Section 3.2 Conformance to Marketing Communications Guidelines.

-------------------------------------------------- In addition to such other obligations set forth herein, including Section 3.1 and Article 4, and subject to the provisions of Section 17.1 hereof, APC, L.P. shall conform to the Marketing Communications



Guidelines (as revised by Sprint from time to time) in connection with the marketing, promotion, advertisement, distribution, lease and sale of any Wireless Product or Service.



Section 3.3 Joint Marketing With Third Parties. APC, L.P. may

---------------------------------- engage in various joint marketing activities with third parties in the Washington-Baltimore MTA from time to time during the term of this Agreement with respect to the Wireless Products and Services; provided, however, that such joint marketing activities (i) are conducted in accordance with the terms and conditions of the Sprint Trademark License Agreement and the Marketing Communications Guidelines, (ii) are not likely (as shall be determined by WirelessCo, in its sole discretion) to cause confusion among the Sprint Brand and any other trademark or service mark used in connection with such activities, and (iii) are not likely (as shall be determined by WirelessCo, in its sole discretion) to give rise to the perception that the Wireless Products and Services are being advertised, marketed or promoted under any trademark or service mark other than the Sprint Brand. Notwithstanding any provision contained herein to the contrary, APC, L.P. shall not engage in any activity that includes co-branding involving use of the Sprint Brand (that is, the marketing, promotion, advertisement, distribution, lease or sale of any Wireless Product or Service under the Sprint Brand and any other trademark or service mark).





ARTICLE 4

ADVERTISING AND PROMOTION



Section 4.1 National Advertising and Promotion. WirelessCo shall

---------------------------------- be responsible for all national advertising and promotion of the WirelessCo Products and Services (including spot advertising in the Washington-Baltimore MTA that is part of a national advertising or promotional campaign). APC, L.P. shall be responsible for its proportionate share of the costs and expenses incurred by WirelessCo in conducting national advertising and promotion activities on behalf of WirelessCo and the WirelessCo Affiliates, including APC, L.P., pursuant to the provisions of Article 13 hereof.



Section 4.2 In-Territory Advertising.

------------------------



(a) APC, L.P. may engage in advertising and promotion activities within the Washington-Baltimore MTA with respect to Wireless Products and Services. Such advertising and promotion activities shall be conducted by APC, L.P. in accordance with the terms and conditions of this Agreement, the Sprint Trademark License Agreement and the Marketing Communication Guidelines. APC, L.P. shall be responsible for the costs and expenses incurred by APC, L.P. with respect to such advertising and promotion activities.



(b) APC, L.P. may obtain advertising and promotion services from WirelessCo with respect to the advertising and promotion of the Wireless Products and Services in the Washington-Baltimore MTA as the Parties may mutually agree in writing from time to time during the term of this Agreement.





(c) WirelessCo shall have the right, but not the obligation, to use any advertising materials developed by, or on behalf of, APC, L.P. with respect to the Wireless Products and Services. In the event WirelessCo determines to use such advertising materials, WirelessCo shall reimburse APC, L.P. for the reasonable direct and out-of-pocket costs incurred by APC, L.P. in developing such materials; provided, however, that such costs shall be included in Allocable Expenses to be allocated to the WirelessCo Affiliates, including APC, L.P., under Article 13 hereof.



Section 4.3 Cooperative Advertising and Promotion. WirelessCo

------------------------------------- and APC, L.P. may engage in cooperative advertising or promotional activities from time to time during the term of this Agreement as the Parties may mutually agree in writing.





ARTICLE 5

PRODUCTS AND SERVICES, IXC SERVICES



Section 5.1 Products and Services Specified by WirelessCo.

--------------------------------------------- Except as otherwise agreed upon by the Parties in writing, APC, L.P. shall, at a minimum, offer, promote and support all products and services specified by WirelessCo from time to time as WirelessCo Products and Services (that is, those products and services designated by WirelessCo as products and services to be offered by WirelessCo and all WirelessCo Affiliates as the products and services of the WirelessCo Network).



Section 5.2 Other Products and Services. APC, L.P. shall be

--------------------------- permitted to offer wireless products and services in addition to those specified by WirelessCo pursuant to Section 5.1 above on such terms as APC, L.P. determines (to the extent not otherwise inconsistent with the obligations of APC, L.P. hereunder).



Section 5.3 IXC Services. APC, L.P. shall act as a sales agent

------------ for IXC services furnished by WirelessCo (either acting as agent for Sprint or as a direct provider of IXC services) and shall not act as a sales agent or reseller of any other IXC Service Provider (to the extent permitted under applicable law and regulation). The terms and conditions applicable to such sales agency relationships shall be set forth in sales agency agreements among Sprint, WirelessCo and APC, L.P. to be entered into as soon as practicable after the date hereof, and such terms and conditions shall be at least as favorable to APC, L.P. (in all material respects) as those offered to any other WirelessCo Affiliate. For purposes of this Section 5.3, complying with specific customer requests to use an IXC Service Provider other than WirelessCo shall not be deemed acting as a sales agent or reseller.





ARTICLE 6



Section 6.1 Territorial Limitations of APC, L.P.'s Distribution

--------------------------------------------------- Activities. Except as otherwise agreed upon by the Parties in writing, APC, L.P. - - ---------- shall not market, sell or distribute Wireless Products and Services outside of the Washington-Baltimore MTA.



Section 6.2 Use of Third Party Distributors. APC, L.P. may,

------------------------------- from time to time during the term of this Agreement, appoint sub-distributors or sub-agents of the Wireless Products and Services in accordance with (and subject to) the terms of the Sprint Trademark License Agreement. APC, L.P. shall be responsible for ensuring compliance by its sub-distributors or sub-agents with the terms and conditions of the Sprint Trademark License Agreement.





ARTICLE 7

NATIONAL ACCOUNTS



Section 7.1 Participation in WirelessCo National Accounts Program.

----------------------------------------------------- During the term hereof, APC, L.P. shall participate in the WirelessCo National Accounts Program (as in effect from time to time), and shall be entitled to compensation for such participation in accordance with the terms and conditions set forth therein.



Section 7.2 Establishment of WirelessCo National Accounts Program.

----------------------------------------------------- The Parties acknowledge that the terms of the WirelessCo National Accounts Program will be established by WirelessCo as soon as practicable after the date hereof. The terms of the initial WirelessCo National Accounts Program shall embody the National Accounts Guiding Principles set forth in Exhibit 7.2 attached hereto.





ARTICLE 8

TECHNICAL STANDARDS



Section 8.1 Conformance to Technical Standards. In the course of

---------------------------------- providing the Wireless Products and Services and operat ...