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HomeMy WebLinkAboutOrd.4146.08-16-2010 BILL NO. 10-99 ORDINANCE NO. 7 f AN ORDINANCE APPROVING A SETTLEMENT AGREEMENT AND BINDING UNILATERAL AGREEMENT WITH T-MOBILE RELATING TO PAYMENT OF BUSINESS LICENSE TAXES WHEREAS, T-Mobile USA, Inc., T-Mobile Central LLC (as successor-by-merger to Voicestream Kansas City, Inc.), Voicestream PCS II Corporation and VS Washington Corporation (collectively, "T-Mobile"), have entered into, subject to final court approval, a Settlement Agreement (hereinafter"Settlement Agreement," and also on file with the City Clerk) in City of University City, Missouri, et al., v. AT&T Wireless Services, Inc., et al., Cause No. 01- CC-004454, pending in the Circuit Court of St. Louis County, Missouri ("Class Action Suit"); and WHEREAS, T-Mobile provides wireless telephone service within the City subject to the City's business license tax ordinances; and WHEREAS, T-Mobile has-further executed a Binding Unilateral Agreement dated as of June 24, 2010 (attached hereto and incorporated herein) making certain commitments in addition to those contained in the Settlement Agreement in consideration relating to settlement of the Class Action Suit, of which the City would be considered a Class Member; and WHEREAS, the City desires to accept the Settlement Agreement as a mutually binding and enforceable Agreement by acceptance of all terms and conditions thereof, and to further accept the commitments made by T-Mobile in the Binding Unilateral Agreement as part of such approval and as relied upon by 4he City and accept the Settlement Payment and Exhibit G Payment, as applicable, in such final amount as to be established by the terms of the Settlement Agreement and Binding Unilateral Agreement, provided that such acceptance preserves and shall not be deemed to waive any rights as an interested party in participation in any court determinations finalizing such Settlement Agreement or Settlement Payment and Exhibit G Payment amounts; l NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, AS FOLLOWS: Article 1. In continued reliance on the Binding Unilateral Agreement, and in accepting the promises and commitments made by T-Mobile thereunder, the City does hereby approve and accept all terms and conditions of the Settlement Agreement as a mutually enforceable and binding Agreement between T-Mobile and the City, subject only to final court.approval in the Class Action Suit. Pursuant to the Settlement Agreement and Binding Unilateral Agreement, Settlement Payments and Exhibit G Payments, as applicable and as required thereunder, and all inquiries regarding the City's Business License Tax shall be directed to the City through its authorized representative: John Richbourg, Finance Director City of Cape Girardeau 401 Independence Street P. O. Box 617 Cape Girardeau, Missouri 63702-0617 (573) 339-6325 Article 2. The City Clerk shall forward a copy of this Ordinance to: T-Mobile Settlement Claims Administrator Attn: Robert V. Mitchell PO Box 545 Minneapolis, MN 55440-0545 The City Clerk and other designated officials are hereby authorized to take such other actions as may be necessary to implement and effect the purposes of this Ordinance. Article 3. This Ordinance approves a settlement as to claims by or relating to a single taxpayer and nothing in this Ordinance shall be deemed to amend or implement any tax applicable to any taxpayer. Article 4. This Ordinance shall be in full force and effect from and after its passage and approval. PASSED AND APPROVED this Play of 4 , 2010. E. Rediger- Mayor ATTEST: p� Aalvi daybo. Conrad, City Clerk - 2 - BINDING UNILATERAL AGREEMENT This Binding Unilateral Agreement ("Agreement") is made by T-Mobile USA, Inc., T- Mobile Central LLC (as successor-by-merger to Voicestream Kansas City, Inc.), Voicestream PCS II Corporation and VS Washington Corporation (collectively, "T-Mobile"). Capitalized terms used in this Agreement but not defined herein shall have the meanings ascribed thereto in the below-referenced Settlement Agreement. WHEREAS, T-Mobile has entered into, or agreed to enter into, subject to court approval, a class action Settlement Agreement (the "Settlement Agreement") in City of University City, Missouri, et al. v. AT&T lVireless Services, Inc., et al., No. 01-CC-004454, pending in the Circuit Court of the County of St. Louis,Missouri; and WHEREAS, Cunningham,Vogel &Rost, P.C. ("CVR") is City Attorney or special legal counsel for the Municipalities listed on Exhibit A (collectively the "CVR Cities" and each a "CVR City")relating to the Action; and -WHEREAS, the CVR Cities have incurred attorney fees, as well as other costs and expenses, in responding to tax protest litigation, settlement proposals, representation .relating to the Action,and in taking other measures relating thereto; NOW THEREFORE, T-Mobile hereby makes the following representations, warranties, and covenants on behalf of T-Mobile, with the intention that the CVR Cities and their legal counsel may rely upon such representations, warranties, and covenants as set forth herein and that such representations, warranties, and covenants, shall constitute a binding and enforceable contract to induce the actions of the CVR Cities and their counsel. 1. Membership in Settlement Class. T-Mobile agrees that each CVR City that does not opt out of the Settlement Class will be in the Settlement Class. 2. Deemed submission of valid.Claim Form. Based on T-Mobile's previously completed review of each CVR City's Business License Tax ordinance, T-Mobile agrees that each CVR City shall be deemed to have complied with Section IVY of the Settlement Agreement, and shall therefore be deemed for all purposes of the Settlement Agreement to have submitted a valid Claim Form to T-Mobile for all purposes of the Settlement Agreement, if such CVR City furnishes the Administrator, postmarked on or before the deadline provided in the Settlement Agreement for the submission of Claim Forms,with: a. a copy of an ordinance adopted by such CVR City accepting all terms and provisions of the Settlement Agreement as a mutually binding and enforceable agreement between such CVR City and T-Mobile in accordance with applicable Missouri and local law, or, if the Municipality chooses to effect its acceptance of all terms and conditions of the Settlement Agreement by another accepted, legally binding method, copies of an acknowledgment that the Municipality agrees to be bound by the terms of the Settlement Agreement if approved by the Court, which acknowledgment shall describe the method used to accept the Settlement Agreement and shall be accompanied by an opinion of counsel, addressed to T-Mobile, that the Settlement Agreement, if approved by the Court,is a binding obligation of the Municipality; b. the name and address to which the Settlement Payment and Exhibit G Payment should be made and mailed to the CVR City; and c. the name, address, and telephone number of the CVR City's duly authorized representative(s), to whom all inquiries regarding the CVR City's Business License Tax may be directed. Such items shall be sent by the CVR City to -2- T-Mobile Settlement Claims Administrator Attn: Robert V. Mitchell P4 Box 545 Minneapolis, MN 55444-0545 3. Entitlement to the Settlement Payment and Exhibit G Payment. Upon the deemed submission of a Claim Form by a CVR City as provided in paragraph 2 of this Agreement,T- Mobile agrees that it shall be deemed to have accepted such form as valid for all purposes of the Settlement Agreement,and the CVR City shall be entitled to the Settlement Payment and Exhibit G Payment as set forth with respect to such CVR City in Exhibit E and .Exhibit G to the Settlement Agreement, including the release of Protested Tax or disbursement of Escrowed Tax, if any, to such CVR City and the payment of the Settlement Payment by the Administrator and the payment of the Exhibit G Payment by T-Mobile to such CVR City, which such Settlement Payment and Exhibit G Payment shall be paid to such CVR City at the times provided in the Settlement Agreement, Such CVR City shall also be entitled to the payment of future Business License 'faxes as set forth in Section 11.A.4 of the Settlement Agreement and as represented in Paragraph 4 herein. T-Mobile hereby represents and agrees that the version of Exhibit E and Exhibit G attached to this Agreement shall be deemed to constitute Exhibit E and Exhibit G for purposes of the Settlement Agreement and of this Agreement with respect to the CVR Cities. 4. Representation and agreement with respect to Business License Taxes. Based on T- Mobile's previously completed review of each CVR City's Business License Tax ordinance, T- Mobile agrees that no exclusions contained in any such ordinance apply to the computation of Business License Taxes payable by T-Mobile. Accordingly, (i) for each CVR City, T-Mobile represents that the tax amount on Exhibit E and Exhibit G was computed without regard to any exclusion provided in the Business License Tax ordinance of such city, meaning that no such - 3 - exclusion was asserted or applied by T-Mobile in computing any such tax amount and (ii) T- Mobile further agrees that, with respect to future Business License Taxes that T-Mobile is obligated to pay to a CVR City pursuant to Section II.A.4 of the Settlement Agreement, T- Mobile will pay such.taxes without applying,or claiming application of,any exclusion that exists in the Business License Tax ordinance of such city as of the date of this Agreement, unless instructed by the city to apply such exclusion. 5. Cost payment. T-Mobile shall pay the sum of Seven 'Thousand Five Hundred Dollars ($7,500.40) to each CVR City that complies with the terms of Paragraph 2 above, in partial compensation for the efforts and attorney fees expenses incurred by such CVR City in connection with responding to settlement proposals and other measures related to the Action and settlement thereof: This amount shall be in addition to any amount owed pursuant to the Settlement Agreement and shall riot be considered to be part of the compensation or attorneys fees paid as part of the class settlement under the Settlement Agreement. This payment shall be made to each such CVR City at the time of payment by the Administrator of the Settlement Payment and Exhibit c Payment as established in the Settlement Agreement. b. Inavolicability of Agreement. This Agreeament shall not apply to any CVR City that either files a formal objection or opts out of the Settlement Class, or files a claim in any form pursuant to the Settlement Agreement seeking payment of the Settlement Payment and Exhibit G Payment in an amount greater than. shown for such city on Exhibit E and Exhibit G of the Settlement Agreement. 7. No 11ri1~N effect. T-Mobile agrees that nothing in this Agreement shall be considered in evaluating compliance Nvith any most favored nation clause within the Settlement.Agreement. -4 - S. Termination of Agreement. This Agreement shall remain outstanding and shall not be revoked with respect to any CVR City unless (i) the termination of the Settlement Agreement occurs by its terms or upon disapproval thereof by the Court; or (ii) the Court rejects this Agreement or the Court refuses or expresses an intention to refuse to grant either preliminary or final approval to the Settlement Agreement in its current form due in any way to the existence of this Agreement, in either or both of which cases T-Mobile shall have the right unilaterally to revoke this Agreement and proceed with the Settlement .Agreement on its existing terms. All payment and other obligations of T-Mobilc pursuant to this Agreement are subject to Court approval of the Settlement Agreement. T-Mobile warrants that the CVR Cities and their legal counsel may rely on this Agreement in taking future actions and foregoing objections to the Settlement Agreement or foregoing opting out of the Settlement Class and other immediate reliance, and as such T-Mobile agrees that this Agreement shall therefore be binding and enforceable from and after the date hereof and subject to the conditions hereof. 9. Miscellaneous. The undersigned represents that it is fully authorized to make this Agreement on behalf of T-Mobile. Construction and interpretation of this Agreement shall be determined in accordance with the laws of the State of Missouri, irrespective of the State of Missouri's choice of law principles. Paragraph captions are inserted as a matter of convenience and for reference, and in no way define,limit, extend or describe the scope of this Agreement or any provision hereof: - 5 - JNj WI'I'1~]E'SS WHEREOF, T-Mobile has executed this Agreement on this ay of 2010. T-Mobile By. - Name: Title: y i tc Tre"— d'e—n-L SUBSCRIBED AND SWORN TO BEFORE ME THIS ,W, fCday of 2010 Notary Vublic My commission expires •� A.� 0 jv/�'f -6- EXHIBIT A 1. Adrian 2. Aurora 3. Buckner 4. :Butler 5. Cameron 6. Cape Girardeau 7. Green Park 8. Harrisonville 9. Joplin 10. Lee's Summit 11. Liberty 12. _Malden 13. Monett 14.Nleosho 15. Oak Grove 16. Oakland 17. Overland 18. Pacific 19. Platte City 20. Raytown 21. St. Joseph 22. Warson Woods 23. Webb City 24. Webster Groves 25. Wentzville 26. Woodson Terrace 0 a N go a Y y « en rn N N O1 a0 n in ry m w 1r 7 N o ,Q A n p p N v o v n m m O q1 oto n •+ `^ m k! m v " ¢ :? o o N 71 CI m r7 vi co m 4 8 -1 n t7i O r� Ln m h r «-i crs o0 <f r4 E m oa h N V t0 w ci �- 'et V1 O tD iD V 'pF N N. N a�-7 N tT N t V 'J n N j .� ab a-i W N .•! iN11 m N cD i7i >A o NO � r• C •-1 .••! V C}' e-t N in W rt N Ct m 00 N ri c V Q '_ E 3 u O N .-i G 0 N a a M vi C c v S •� C3 _ a a a O O a C 7t0 a N y t6 w A y u 'c a N a qU C a a U ba a m 00 C) m an O � Cyn H O » w C u 3 N 4 a V a a � � o LUCL t moo • oc oco � = � to � v s ti N umi n a o a m S V v a r.. a T cl cu C O Q A d C O C V N y O C O E- G C O a AA VY c C7 c ti N C LAA O O C O co v a O � a 4 w 'cc d � 0 E c a mw+vN Z t y 4 N O1 Q _N O 2 a " 3E 3e �E 3e ;E ;E a of 9 !R A `dR 9 a u c h ZD O in U1 in 3 n V1 .n h iD h vl u'1 ut 7A a0 t11 h h ON Vt n t11 711 ,i M O D Q - w- dna.jq ¢ m' ¢ ¢ m ¢ ¢ ¢ Q an m m ¢ m ¢ ¢ Q ¢ ¢ ¢ ¢ ¢ m m ¢ m aj n � > C e a 3 a b 01 •E fl: O O F 0 0 F1°• M c _ y y c aL i, i7 o i3 d S �.� m a x °' a a '` c w nICU »E a m ; a ar a s eai wnAa a om .! _, z fl 7l a oG Exhibit G Sh6 full Municipality 1-18-0$thro'u6h 12- 31.09 Buckner 550(an 100.00 Oak Grove 123 544.10 EXECUTION COPY IN THE CIRCUIT COURT OF ST.LOUIS COY STATE OF MISSOURI CITY OF UNIVERSITY CITY, MISSOURI, et al., ) Plaintiffs, ) Case No.0 1-CC-004454 VS. c— AT&T WIRELESS SERVICES, } TNC., et al., ) Defendants. ) SETTLEMENT AGREEiVIENT This Settlement Agreement is made and entered into, subject to Court approval, as of June 28,2010, by and among plaintiffs, City of Blue Springs, Missouri, City of Cape Girardeau, Missouri, City of Chesterfield, Missouri, City of Dexter, Missouri, City of Ellisville, Missouri, City of Ferguson, Missouri, City of Florissant, Missouri, City of Gladstone, Missouri, City of Independence, Missouri, City of Jennings, Missouri, City of Kirksville, Missouri, City of Kirkwood, Missouri, City of Manchester. Missouri, City of Maplewood, Missouri, City of Maryland Heights, Missouri, City of Northwoods, Missouri, City of O'Fallon, Missouri, City of St. Joseph, Missouri, City of Vinita Park, Missouri, City of Warson Woods, Missouri, City of Wellston, Missouri, City of Winchester, Missouri, and City of University City, Missouri (collectively, "Plaintiffs") on behalf of the Settlement Class (as defined below), and T-Mobile USA, Inc., T-Mobile Central LLC (as successor-by-merger to Voicestream Kansas City, Inc.), Voicestream PCS II Corporation and VS Washington Corporation (collectively, "T-Mobile" or the "T-Mobile Parties"), for the benefit of themselves and all other T-Mobile Released Parties (as defined below), in the above-captioned case. EXECUTION COPY PREAMBLE WHEREAS, a dispute has arisen between Plaintiffs and T-Mobile regarding the applicability of Plaintiffs' and the other Municipalities' (as defined below) respective Business License Tax (as defined below)ordinances to T-Mobile; WHEREAS, Plaintiffs claim that T-Mobile is liable to Plaintiffs and the other Municipalities under their respective Business License Tart ordinances for taxes on revenues derived from T-Mobile's providing telecommunications services including, without limitation, commercial mobile radio service (collectively, "Services"), for maintaining antennas or other facilities, and for flat taxes with respect to providing such Services, and for interest and/or penalties on any such taxes not timely paid by T-Mobile; WHEREAS, the T-Mobile Parties have denied and continue to deny that they have been required to pay taxes under Plaintiffs' and the other Municipalities' respective Business License Tax ordinances and/or deny that they have been required to pay taxes in the amounts claimed by Plaintiffs and the other Municipalities; WHEREAS, T-Mobile and Plaintiffs wish to avoid the expense and uncertainty of continued litigation and desire to settle their disputes without further litigation, including all claims and issues that have been brought or could have been brought in this litigation by or on behalf of the Municipalities that do not specifically exclude themselves as provided herein, including by liquidating and compromising T-tvlobile's alleged past tax liability owed to Municipalities, and establishing,for purposes of this Settlement Agreement only, the taxes to be paid to the Municipalities by T-Mobile on its future revenues derived from Services, all in accordance with the terms and conditions set forth in this Settlement Agreement; 2 EXECUTION COPY WHEREAS, T-Mobile and Plaintiffs have conducted an investigation and evaluation of the facts and law relating to the claims in this litigation and believe that this settlement is fair, reasonable, adequate and in the best interests of all the parties, including the Settlement Class, in light of the continued uncertainty and expense of litigation;and WHEREAS, after arm's-length negotiations between counsel for the Plaintiffs and the proposed Settlement Class and counsel for T-Mobile, this Settlement Agreement has been reached. NOW THEREFORE, it is hereby stipulated and agreed that, in consideration of the agreements, promises, and covenants set forth in this Settlement Agreement, and subject to approval of the Court, this Action (as defined below) will be fully and finally settled and dismissed with prejudice and without costs to T-Mobile except as provided for under the following terms and conditions: I. DEFINITIONS Solely for purposes of this Settlement Agreement and the related documents attached hereto as Exhibits,the following terms have the meanings set forth below: A. "Action"means the civil action entitled City of University Cit), Missouri, et al. v. ,4T&,T Wireless Services, Inc., et al., No. 01-CC-001454, pending in the Circuit Court of the County of St. Louis, Missouri. B. "Administrator" means the Settlement Administrator, Rust Consulting, Inc., which has been retained by T-Mobile to perform the duties of the Administrator set forth in this Settlement Agreement and will,subject to Sections V.A and V_B,be compensated for its services by T-Mobile. C. `'Agreed Fees"has the meaning set forth in Section V.C. 3 EXECUTION COPY D. "Approved Claim" means a Claim Form (as defined below) determined to be valid in accordance with Section 1V.G or as resolved in favor of a claimant pursuant to Section 1V.H or IV.I. E. "Business License Tax" means a tax, including any fee, charge, or assessment in the nature of a tax, alleged by the Plaintiffs to be imposed by a Municipality on any Person (as defined below) for the privilege of engaging in the business of providing telephone service, telephone utility service, exchange telephone service, exchange telephone utility service, telecommunications service, or any other type of Telecommunications Service (as defined below) or related service, or of maintaining any antenna or other facility within such Municipality for the purpose of providing any such service, and specifically includes any tax alleged by Plaintiffs to be authorized by Sections 80.090, 92.045, 92,073, 94.110, 94.270, or 94.360, RSMo, or, if applicable, under authority granted in its charter, as well as an occupation license tax, gross receipts tax, franchise tax, or similar tax, or any tax "alternative"to any of the foregoing, but does not include: I. Any state or municipal sales tax imposed under or subject to Sections 144.010 to 144.525 and 32.087, RSMo;or 2. Any municipal right-of-way usage fee, including but not limited to any fee imposed under the authority of a municipality's police powers under Sections 67.1830 to 67.1846,RSMo; or 3. Any tax or fee levied for emergency services under Section 190.292, 190.305, I90.325, 190.335, or 190.430, RSMo, or any tax authorized by the Missouri General Assembly hereinafter enacted for emergency services; or 4. Any rent for use of municipal premises. 4 EXECUTION COPY F. "Claim"has the meaning set forth in Section IX.O. G. "Claim Form" means the form substantially in the form of Exhibit B to this Settlement Agreement that must be submitted by each putative Class Member in order to be eligible to receive (as applicable) the Settlement Payment(as defined below) and the Exhibit G Payment (as defined below), and to a release of the Protested Tax (as defined below) or a disbursement of the Escrowed Tax (as defined below), if any, as well as corresponding benefits for Class Members not listed on Exhibit E. H. "Claim Period" means that period of time commencing on the entry of the Preliminary Approval Order and continuing up to and including the date that is sixty (60) days after the date of the Notice to the Municipalities (which will be the date on which the Notice is mailed by the Administrator)as set forth in Section III.0 below or such later date as is provided for in Section IV.H and/or Section IV.] and by which putative Class Members must mail their Claim Form (including all associated documentation) to the Administrator and must otherwise meet all requirements hereunder to be entitled to (as applicable)the Settlement Payment and the Exhibit G Payment, and to the release of the Protested Tax (as defined below)or disbursement of the Escrowed Tax (as defined below), if any. 1. "Class A City"means (i) any Plaintiff or other Municipality identified as being a "Class A City" on Exhibit E (as defined below), (ii) any TBD City (as defined below) whose Business License Tax ordinance in effect between September 1,2005 and December 16, 2009 is generally applicable to providers of "telecommunications" service, "telephone" service or "utility" service or (iii) any Municipality whose Business License Tax ordinance in effect between September 1, 2005 and December 16, 2009 is generally applicable to providers of "telecommunications"service,"telephone"service or"utility"service. 5 EXECUTION COPY J. "Class A City Past Tax Period"has the meaning set forth in Section II.A.2. K. "Class B City" means (i) Kansas City, Missouri ("Kansas City"), St. Louis, Missouri ("St. Louis")and any Plaintiff or other Municipality identified as a "Class B City" on Exhibit E, (ii) any TBD City whose Business License Tax ordinance in effect on or before December 16, 2009 is generally applicable to providers of "exchange telephone" service, "exchange" service, "telephone exchange" service, "exchange telephone utility" service, "telephone exchange utility" service, "local exchange" service, "local exchange telephone" service or"local telephone exchange"service and does not otherwise qualify as a Class A City or (iii) any other Municipality whose Business License Tax ordinance in effect on or before December 16, 2009 is generally applicable to providers of "exchange telephone" service, '`exchange" service, "telephone exchange" service, "local exchange" service, "local exchange telephone" service or `local telephone exchange" service and does not otherwise qualify as a Class A City. For purposes of illustration, and for the avoidance of doubt, any Municipality whose Business License Tax Ordinance explicitly states that it applies to providers of "exchange telephone" service, "exchange" service, "telephone exchange" service, "exchange telephone utility" service, "telephone exchange utility" service, "local exchange" service, "local exchange telephone"service or"local telephone exchange" service and does not also explicitly state that it applies to providers of"telephone" service or "telecommunications" service is a Class B City and not a Class A City. No Municipality will be classified as a Class A City by virtue of its having enacted any Business License Tax ordinance solely to be consistent with, or to reconcile an existing ordinance to be consistent with, Missouri 1-louse Bill 209 93rd Gen.Assem., Ist Reg. Sess.(Mo.2005). 6 EXECUTION COPY L. "Class Counsel" means John W. Hoffman and Douglas R. Sprong, Korein Tillery, LLC, 505 N. 7I Street, Suite 3600, St. Louis, MO 63101; John F. Mulligan, Jr., 1600 South Hanley, Suite 101, St. Louis, MO 63144; and Howard Paperner, 9322 Manchester Road, St. Louis, MO 63119. M. "Class Member" or "Class Members" means Plaintiffs and all Municipalities, except Clayton, Missouri, Jefferson City, Missouri, Springfield, Missouri and Odessa, Missouri, who fall within the definition of the Settlement Class, set forth herein,and who have not validly and timely submitted a Request for Exclusion (as defined below) from the Settlement Class. N. "Class Representatives" means City of Blue Springs, Missouri, City of Cape Girardeau. Missouri, City of Chesterfield, Missouri, City of Dexter, Missouri, City of Ellisville, Missouri, City of Ferguson, Missouri, City of Florissant, Missouri, City of Gladstone, Missouri, City of Independence, Missouri,City of Jennings,Missouri, City of Kirksville, Missouri,City of Kirkwood, Missouri, City of Manchester, Missouri, City of Maplewood, Missouri, City of Maryland Heights, Missouri, City of Northwoods, Missouri, City of O'Fallon, Missouri, City of St. Joseph, Missouri, City of Vinita Park, Missouri, City of Warson Woods, Missouri, City of Wellston, Missouri, City of Winchester, Missouri,and City of University City, Missouri. 0. "Credit for Taxes Paid" has the meaning set forth in Section II.A.5. P. "Court"means the Circuit Court of the County of St. Louis,Missouri. Q. "Defendants'Counsel"means Bryan Cave LLP and Proskauer Rose LLP. R. "Effective Date of the Settlement" means the first day by which all of the following events will have occurred: (1)the Court has entered the Preliminary Approval Order as set forth in Section VILC of this Settlement Agreement; (2) the Court has entered the Order and Judgment of Dismissal (as defined below),substantially in the form of ExhibitD,as set forth 7 EXECUTION COPY in Section VILF of this Settlement Agreement; and (3)the Order and Judgment of Dismissal has become Final (as defined below). S. "Escrowed Tax" means an amount of Business License Tax, including any accumulated interest, that has been paid into an escrow account (for each Municipality, an "Escrow Account") by T-Mobile pursuant to separate escrow agreements ("Escrow Agreements") between T-Mobile and the Cities of St. Joseph, Missouri, Gladstone, Missouri, Independence, Missouri and Blue Springs, Missouri, respectively (collectively, the "Escrowed Cities"). T. "Exhibit G Payment"has the meaning set forth in Section II.A.4. U. "Future Tax Period Payment"has the meaning set forth in Section ILA.4. V. "Fee and Expense Application" means that written motion or application by which CIass Counsel requests that the Court award them fees and/or expenses. W. "final" with respect to the Order and Judgment of Dismissal means the occurrence of all of the following events: I. This Settlement is approved in all respects by the Court; 2. The Court has entered the Order and Judgment of Dismissal, or a judgment substantially in the form of Exhibit D, attached hereto, which has not been reversed, stayed, modified,or amended;and 3. The time to appeal from the Court's Order and Judgment of Dismissal under the Missouri Supreme Court Rules has expired and no appeal or further appeal of the Order and Judgment of Dismissal has been timely filed,or any appeal of the Order and Judgment of Dismissal has been resolved by the highest court to which it was appealed upholding or affirming the Order and Judgment of Dismissal. An appeal pertaining solely to an application 8 EXECUTION COPY for or award of attorneys' fees, costs, and expenses will not in any way delay or preclude the Order and Judgment of Dismissal from being Final. X. "Final Fairness Hearing' means the hearing at which the Court will: (1)determine whether to grant final approval to this Settlement Agreement; (2)consider any timely objections to this Settlement and all responses to objections by the Parties;and (3) rule on the Fee and Expense Application. Y. "Future Tax Payment"has the meaning set forth in Section II.A.4. L. "Indemnified Parties"has the meaning set forth.in Section IX.O. AA. "Interim Prospective Tax Payments" has the meaning set forth in Section II.A.6. BB. "MTSA"has the meaning set forth in Section II.A.2. CC. "'Municipality" means any city, town, or village in Missouri entitled by authority of Section 80.090, 92.045, 92.073, 94.110. 94.270, or 94.360, RSMo, or, if applicable, under authority granted in its charter,to assess a Business License"Fax. DD. "Notice"means the notice of class action settlement attached hereto as Exhibit A. EE. "Opt-Out Date" means the postmark date by which members of the Settlement Class must mail their request to be excluded from the Settlement Class in order for that request to be effective. FF. "Objection Date" means the postmark date by which members of the Settlement Class must mail their objection to the Settlement in order for their objection to be valid. GG. "Order and Judgment of Dismissal' means the order, substantially in the Form attached hereto as Exhibit D, in which the Court grants final approval of this Settlement Agreement and authorizes the entry of a final judgment and dismissal of the Action. 9 EXECUTION COPY HFI. "Parties"means T-]vlobile and the Class Members. 11. "Past Tax Payment"has the meaning set forth in Section MA below. JJ. "Person" or "Persons" means any natural person, firm, corporation, unincorporated association, partnership or other form of legal entity or government body, including its agents and representatives. KK. "Preliminary Approval Order" means the order, substantially in the form of Exhibit C hereto, in which the Court grants its preliminary approval to this Settlement Agreement, approves Plaintiffs as Class Representatives, preliminarily approves certification of the Settlement Class for settlement purposes only, authorizes dissemination of Notice to the Settlement Class, and enjoins members of the Settlement Class from filing any other actions based upon any of the Released Claims as defined in Section 1.NN. LL. "Protested Tax"means an amount of Business License Tax that has been paid by T-Mobile to a Municipality under a duly perfected protest pursuant to Section 139.03 I, RSMo. 1v1M. "Protested Tax Litigation" means the tax protest actions filed by T-Mobile Central LLC or its predecessors-in-interest (collectively, "T-Mobile Central"), raising claims and defenses substantially similar to those raised in the Action, including specifically but without limitation,the actions listed in the annexed Exhibit F. NN. "Released Claims" means, without limitation, any and all claims, actions, demands, rights, liabilities, suits, complaints, causes of action (including, but not limited to, claims based on violation of- any federal, state or local law or regulation, fraud, unjust enrichment, and breach of contract, and claims arising under laws of any other jurisdiction that have been or could or might have been alleged by any Class Member in any forum in the United States of America, as part of the Action or as any other action, arbitration, or proceeding), 10 EXECUTION COPY requests for damages, requests for injunctive relief, disgorgement of monies, requests for declaratory relief, requests for equitable relief of every nature and description whatsoever, requests for attorneys' fees,costs, and expenses, whether known or unknown, arising out of the alleged non-payment by any of the T-Mobile Released Parties of the Class Members' respective Business License Tax that Plaintiffs and other Municipalities claimed to be or could have claimed to be due before December 31,2009. The Plaintiffs and other Class Members expressly acknowledge that "Released Claims" include, and this Settlement Agreement constitutes a release of, any and all claims that a Class Member does not know or suspect to exist in its favor at the time of the release, which, if known by it, might have affected its settlement with and release of the T-Mobile Released Parties or might have affected its decision not to object to or opt out of this Settlement Agreement or any portion or aspect of the Settlement Agreement reached by the parties. 00. "Releasing Municipal Parties"means Plaintiffs and each Class Member. PP. "Request for Exclusion" means a request, made in compliance with the terms and conditions provided in this Settlement Agreement, by a Municipality to opt out of the Settlement Class as set forth in Section VILD. QQ. "Settlement Administration Fund" has the meaning set forth in Section W.A. RR. "Settlement Agreement,""Settlement," or"Agreement" means this Settlement Agreement, including the attached Exhibits. SS. "Settling Wireless Carrier(s)"means (i) Verizon Wireless(defined below);(ii) US Cellular,as that tenn is defined in the settlement agreement filed October 30,2007 in the Action; (iii)AT&T Mobility,as that tenn is defined in the settlement agreement filed December 7, 2007 in the Action;(iv)Sprint,as that tern is defined in the settlement agreement filed II EXECUTION COPY December 20,2007 in the Action; and(v) AIltel,as that term is defined in the settlement agreement filed March H,2010 in the Action. . TT. "St.Louis Account"has the meaning set forth in Section IV.A.5. UU. "Settlement Class" means the class certified for settlement purposes only, pursuant to the Final Order and Judgment, consisting of all Municipalities in the State of Missouri (except Clayton, Missouri, Jefferson City, Missouri, Odessa, Missouri and Springfield, Missouri) that, on or before December 16, 2009, have imposed a Business License Tax; and are within the definition of a Class A City or a Class B City; and in which T-Mobile either derived gross receipts from providing Services or maintained facilities for the provision of Services. For the avoidance of doubt, unless otherwise agreed by the Parties in writing, any Municipality that is not within the definition of a Class A City or a Class B City (including, without limitation, Odessa,Missouri) is not within the Settlement Class. VV. "Settlement Payment"has the meaning set forth in Section II.A. WW. "T-)Mobile Settlement Payment"has the meaning set forth in Section 1V.K.1. XX. "T-Mobile Released Parties" means the T-Mobile Parties and (1) their present and fonner subsidiaries, parents, partners,affiliates, successors,and predecessors, (2)all Persons on whose behalf any of the foregoing entities acted or purported to act, and (3) for each of the foregoing Persons and entities, each of their present, former, or future officers, directors, shareholders, employees, representatives, agents, principals, consultants, contractors, insurers, accountants, attorneys, partners, members, administrators, legatees, executors, heirs, estates, successors-in-interest or assigns or any other person with whom any of them is affiliated or otherwise for whom any of them is responsible at law or in equity; provided, however, that except for the T-Mobile Parties and their present subsidiaries, parents, partners, and affiliates, 12 EXECUTION COPY who will in all events be considered T-Mobile Released Parties, such term does not include any other defendant to the Action or (a) their present and former subsidiaries, parents, partners, affiliates, successors, and predecessors, (b) all Persons on whose behalf any of the entities identified in the immediately foregoing clause acted or purported to act, and (e) for each of the Persons and entities identified in the two immediately foregoing clauses, each of their present, former, or future officers, directors, shareholders, employees, representatives, agents, principals, consultants, contractors, insurers, accountants, attorneys, partners, members, administrators, legatees, executors, heirs, estates, successors-in-interest or assigns or any other person with whom any of them is affiliated or otherwise for whom any of them is responsible at Iaw or in equity. YY. "Telecommunications Service" has the meaning ascribed thereto by Section 1=14.010.1(13),RSMo. ZZ. "TBD Cities"has the meaning set forth in Section III.B. AAA. "Verizon Settlement" means the settlement agreement filed August 30, 2007 in the Action. BBB. "Verizon Wireless"has the meaning set forth in the Verizon Settlement. 13 EXECUTION COPY H. SETTLEMENT CLASS RELIEF In consideration of a full; complete, and final settlement of this Action, and in consideration of dismissal of the Action with prejudice with respect to T-Mobile and the Releases and Dismissals in Section VI below, and subject to the Court's approval, the Parties agree to the following: A. Class Benefit. 1. Amount of Settlement Pam. Subject to the provisions of this Settlement Agreement, the Administrator will pay to each Class Member who has submitted an Approved Claim and accepted this Settlement Agreement, as hereinafter provided,the Settlement Payment no sooner than thirty-five (35)days after the Effective Date of the Settlement and no later than forty-five (45) days after the Effective Date of the Settlement. "file "Settlement Payment" will consist of(i) the sum of the Past Tax Payment(as defined below) for each respective Class Member plus the Future Tax Period Payment (as defined below) for each respective Class Member(ii) minus the Credit for Taxes Paid (as defined below)for each respective Class Member. 2. For purposes hereof, the "Past Tax Payment" will mean, with respect to each Class A City: (a) The amount of Business License Tax that T-Mobile would owe to the Class A City, with respect to any such tax that is measured as a percentage of gross receipts from providing service, for gross receipts from providing Telecommunications Service that were billed to customers ofT- Mobile with a place of primary use (as that tern is defined in § 124 of the l't EXECUTION COPY Mobile Telecommunications Sourcing Act, 4 U.S.C. §§ 116-126 ("MTSA")) in each respective Class A City for the period beginning September 1, 2005 and ending August 31, 2007 (the "Class A City Past Tax Period"), without regard to any interest or penalty (which will not be considered in determining the payment). PLUS (b) The amount of Business License Tax that T-Mobile would owe to the Class A City, with respect to any such tax that is imposed as an annual or other periodic flat amount, including an amount payable for maintaining any antenna, for any tax period that includes, in whole or in part, the Class A City Past Tax Period, without regard to any interest or penalty (which will not be considered in determining the payment). 3. For purposes hereof, the "Past Tax Payment' will mean, with respect to each CIass B City: (a) Twenty-five percent(25%)of the amount of Business License Tax that T-Mobile would owe to the Class B City, with respect to any such tax that is measured as a percentage of gross receipts from providing service, for gross receipts from providing Telecommunications Service to customers of T-Mobile with a place of primary use(as that term is defined in § 124 of the MTSA) in each respective Class B City for the period beginning on the date on which T-Mobile started offering Services to customers with a place of primary use (as that tenn is defined in § 124 of the MTSA) in each respective Class B City and ending August 31, 2007, 15 EXECUTION COPY without regard to any interest or penalty (which will not be considered in determining the payment). PL US (b) The amount of Business License Tax that T-Mobile would owe to the Class B City, with respect to any such tax that is imposed as an annual or other periodic flat amount, including an amount payable for maintaining any antenna,for any tax period that includes, in whole or in part,the period beginning September 1, 2005 and ending August 31,2007, without regard to any interest or penalty (which will not be considered in determining the payment). (c) For the avoidance of doubt, the tax rate to be applied for purposes of calculating the Past Tax Payment for Kansas City is ten percent (10%). 4. Future Tax Pavment. a. Subject to the provisions of this Settlement Agreement, T-Mobile agrees to pay(to the extent it has not already paid),with respect to tax periods and partial tax periods commencing on and after September 1, 2007, the Business License Taxes of each Class Member that is bound by this Settlement Agreement ("Future Tax Payment"). For such taxes that are imposed with respect to gross receipts that are subject to the NITSA, T-Mobile will pay (to the extent it has not already paid) such taxes at the tax rates set forth in each such Class Member's respective ordinance(s) on all receipts from providing Telecommunications Service that are sourced to the Municipality under the MTSA, including receipts 16 EXECUTION COPY from any retail customer now or hereafter exempt from the state sales tax, but excluding any class of users excluded under the particular Class Member's Business License Tax ordinance(s). (For the avoidance of doubt, the foregoing agreements by T-Mobile are for settlement purposes only and are not an admission by T-Mobile that the type or amount of gross receipts that are subject to taxation, under (i) any Business License Tax of any Municipality that is not a Class Member or opts out of this Settlement or(ii)any taxing statute or ordinance in any jurisdiction outside the State of Missouri, are established or otherwise defined by the MTSA.) T-Mobile's obligation under this Section II.A.4 will continue with respect to each such Class Member unless and until: (i) a court or administrative or regulatory body of competent jurisdiction determines, or a Class Member specifies to T-Mobile in writing after the Effective Date of the Settlement, that such Class Member's Business License Tax does not apply to some or all of the subject services or related facilities or gross receipts derived therefrom, and such determination is not subject to further appeal or the time to appeal has expired and no appeal or further appeal has been timely filed; (ii) the Missouri General Assembly or other legislative body enacts legislation removing the authority of such Class Member to impose such Business License Tax and such legislation is in effect, or(iii) any other change in law, including a change in the Municipality's Business License Tax ordinance, occurs that affects T- Mobile's obligation tinder this Section I1.A.41 in which case the remaining obligation of T-Mobile under this Section II.A.4, if any, will be consistent with such determination, legislation, or change. T-Mobile will not, in case of any 17 EXECUTION COPY judgment, legislation or other change of law as referred to in the foregoing sentence, be entitled to recover any sums paid or which become due and owing prior to the finality of such judgment or effective date of such legislation or other change of law. If T-Mobile enters into a written agreement with any Class Member, or enters into a written agreement with a representative of a Class Member that is enforceable by such Class Member, as to the application of any exclusion in such Class Member's Business License Tax ordinance for purposes of determining Future Tax Payments, then such agreement as to such application will be followed by T-Mobile with respect to any substantially similar exclusion in any other Class Member's Business License Tax ordinance, unless T-Mobile is directed otherwise in writing by such other Class Member; provided, however, that if following such agreement would cause an exclusion to be applied so as to reduce the Business License Tax receipts of such other Class Member, then T- Mobile will not follow such agreement with respect to such other Class Member without prior consent from such other Class Member. Moreover, any and all future amendments to the Business License Taxes must comply with applicable law. b. The Parties agree that, except for the Municipalities listed on Exhibit G hereto,T-Mobile has fully paid the Business License Tax of each Class Member, as required by this Section ILA.4, for the period January 18, 2008 through December 31, 2009. (For the avoidance of doubt, the Parties recognize that T-Mobile has continued to pay the Business License Tax of each Class Member,as required by this Section II.A.4,subsequent to December 31,2009 and 18 EXECUTION COPY through the date of this Settlement, although Class Counsel has not been able to verify whether T-Mobile has paid the full amount of the Business License Tax of each Class ivlember during that time period.) C. For purposes hereof, the "Future Tax Period Payment" will mean, for each respective Class Member, (i) the amount of Business License Tax imposed by the Class Member from September 1, 2007 through December 31, 2007 plus(ii)the amount of Business License Tax underpaid by T-Mobile for the period beginning January 1,2008 and ending January 17,2008. d. Subject to the provisions of this Settlement Agreement, T-Mobile will (as applicable) pay to each Municipality listed on Exhibit G that has submitted an Approved Claim and accepted this Settlement Agreement, as hereinafter provided, the amount owed to the Municipality for the period beginning January 18, 2008 and ending December 31, 2009 (each an "Exhibit G Payment"), no sooner than thirty-five (35) days after the Effective Date of the Settlement but no later than forty-five (45) days after the Effective Date of the Settlement. For each such Municipality, the amount of the Exhibit G Payment is set forth in Exhibit G. The calculations set forth in Exhibit G have been reviewed and agreed upon by Class Counscl.and T-Mobile and are Final, subject only to revisions that are approved by T-Mobile pursuant to a Municipality's appeal to the Administrator under Section IV.[. e. For the avoidance of doubt, the tax rate to be applied for purposes of calculating the Future Tax Payment for Kansas City will be determined in accordance with Kansas City Ordinance Number 080776. 19 EXECUTION COPY 5. Amount of Credit for Taxes Paid. For purposes hereof, the "Credit for Taxes Paid"will mean, for each respective Class Member: the sum of(i) any Business License Tax,excluding Protested Tax or Escrowed Tax,actually paid by T-Mobile to the Class Member for any period prior to January I, 2008, plus (ii) the amount of Protested Tax or Escrowed Tax actually paid by T'-Mobile to the Class Member for any period prior to January 1,2008 that is (A) released for the unrestricted use of the Class Member by reason of the dismissals described in Section VI.0 or (B)disbursed to the Escrowed Cities pursuant to Section IV.A.1 6. No Lobbying Missouri General Assembly. T-Mobile agrees that, for a Period of five years from the date of execution of this Agreement, it will not seek or Iobby for legislation in the Missouri General Assembly that would cap or reduce the Business License Taxes subject to this Settlement Agreement, provided, however, that if a Settling Wireless Carrier is allowed to lobby under the terms of its settlement agreement,and a Settling Wireless Carrier seeks or lobbies for legislation in the Missouri General Assembly that would cap or reduce Business License Taxes under a settlement agreement,then T-Mobile may, to the extent consistent with the foregoing restrictions, in order to protect its interests, lobby in the Missouri General Assembly only (a) to oppose such legislation in its entirety,or(b) to support, suggest or oppose specific provisions to revise any proposed legislation(i) in order to prohibit discrimination against T-Mobile or similarly situated carriers, or(ii) that could put T-Mobile at a competitive disadvantage. Nothing in this Section 11.A.6 shall preclude T-Mobile from opposing any proposal to increase the rate or broaden the scope of a MunicipaIity's Business License Tax. The The Parties agree that the treatment of any interest accumulated in an Escrow Account shall be as set forth in Section IV.A. 20 EXECUTION COPY parties agree that the promises and commitments by T-Mobile contained within this Section 11.A.6 are vital provisions going to the very substance or root of the Settlement and that failure or breach of such promises and commitments would constitute a material breach of this Settlement Agreement, entitling the Class Members to all remedies available at law or equity for such a material breach, including but not limited to rescission of this Agreement. 7. Interim Prospective Tax Payments. Any Business License Tax payment made by T-Mobile on or after the date of execution hereof, but before the Effective Date of the Settlement (each all "Interim Prospective Tax Payment"), will be deemed to be made under protest within the meaning of Section 139.031, RSMo, and to the tax collector of the \Municipality, whether or not so designated by T-Mobile, with the grounds for the protest(which will be deemed to accompany the payment in the form of a written protest statement) being those set forth in the various tax refund petitions filed in the Protested Tax Litigation and such other grounds as T-Mobile may designate in writing on or before the filing of any petition for refund of such payment. Each Municipality receiving an Interim Prospective Tax Payment agrees to segregate and hold those funds in a separate, interest-bearing bank account in accordance with Section 139.031.2, RSMo, until disposition as provided herein. Upon the Effective Date of the Settlement, such funds will be deemed released to each Class Member, free and clear of all claims, liens and encumbrances under Section 139.031, RSMo, and this Agreement. In the event that the Settlement Agreement is nullified as set forth in Section 1V.K or Section IX.L or Section IX.O, T-Mobile may, within ninety (90) days following the date of such event, file an action to perfect its refund claim for such funds in accordance with 21 EXECUTION COPY Section 139.031, RSMo, and, notwithstanding any provision of law to the contrary, the statute of limitations as to such claire will be tolled up to and including the date that is ninety (90) days after the date that the Settlement Agreement is nullified. Notwithstanding any provision of this Section II.A.7 to the contrary,T-Mobile may make Interim Prospective Tax Payments (a) under protest to any Municipality until the Effective Date of the Settlement and may file Tax Protest Litigation with respect to such Interim Prospective Tax Payments and otherwise perfect its protests with respect to such Interim Prospective Tax Payments pending the occurrence of the'Effective Date of the Settlement; or (b) pursuant to the .Escrow Agreements. Tax Protest Litigation so filed will be (a) dismissed as provided in Section VLC in the event of the occurrence of the Effective Date of the Settlement or (b) prosecuted in the discretion T-Mobile if this Settlement Agreement is nullified as set forth in Section IV.K or Section IX.L or Section IX.O. B. Most Favored Nation. In the event Verizon Wireless exercises its right(s) under a Most Favored Nation clause in Section 11.13 of the Verizon Settlement to amend the terms of the Verizon Settlement with any Class Member, then such Class Member will promptly notify T- Mobile of such exercise by Verizon Wireless, and T-Mobile will have the right to amend this Settlement Agreement as to such Class Member to adopt the amended terms as applicable to the Verizon Agreement. Nothing herein will give T-Mobile the right to amend the ten-ns of this Settlement Agreement unless and until Verizon Wireless exercises its right(s) under the Most Favored Nation clause in the Verizon Settlement. 22 EXECUTION COPY III. NOTICE OF CLASS ACTION SETTLEMENT AND CALCULATION OF SETTLEMENT AMOUNTS Notice of the Settlement will be provided to Municipalities as follows: A. Notified Municipalities. The Administrator will send the Notice to each Municipality in the State of Missouri (except Clayton, Missouri, Jefferson City, Missouri, Springfield, Missouri and Odessa, Missouri) via first-class mail, using the address information provided by Class Counsel. (For the avoidance of doubt,the Administrator will only be required to send the Notice to each Municipality that is timely identified by Class Counsel and will not be obligated to investigate or determine whether any Municipality in the State of Missouri should be provided notice or notified at an address other than the address provided by Class Counsel. Notwithstanding the foregoing, in the event that the first Notice mailed to a Municipality is returned to the Administrator by the United States Postal Service, the Administrator will so advise Class Counsel and T-Mobile and Class Counsel may, within five (5) business days, provide the Administrator with another address for the Municipality, in which case the Administrator will send the Notice to the Nlunicipality at that address via first-class mail.) The Notice will bear the date on which the Notice is mailed by the Administrator. B. Exhibit E. Set forth in the attached as Exhibit E are, among other things, the Parties' classification of Municipalities (except for TBD Cities) as Class A Cities or Class B Cities and the Parties' calculations, for each Municipality identified therein,of(1) the amount of any Business License Tax,excluding Protested Tax or Escrowed Tax,actually paid by T-Mobile to the Municipality for periods through December 31, 2007, (2)the amount of any Protested Tax or Escrowed Tax actually paid by T-Mobile to the Municipality for periods through December 31, 2007, that will be released for the unrestricted use of the Municipality by reason of the dismissals described in Section VI.0 or disbursed to the Escrowed Cities pursuant to Section 23 EXECUTION COPY IV.A, (3)the Settlement Payment to be paid to the Municipality by the Administrator and (4)the sum of the amounts described in the foregoing clauses(1), (2)and(3). The calculations set forth in Exhibit E have been reviewed and agreed upon by Class Counsel and T-Mobile and are final, subject only to revisions that are approved by T-Mobile pursuant to a Municipality's appeal to the Administrator under Section IV.I. Notwithstanding anything to the contrary in the immediately preceding sentence, in the event that: (a) a Municipality is unable to demonstrate, pursuant to Section iV.F, that during an applicable time period it had a Business License Tax ordinance that would cause the Municipality to be within the definition of a Class A City or a Class B City, it will not receive any compensation for the time period during which such ordinance was in effect; (b) an ordinance submitted by a Municipality pursuant to Section iVI specifically states that it does not apply to providers of commercial mobile radio service, it will not receive any compensation for the time period in which such ordinance was in effect; or(c)an ordinance submitted by a Municipality pursuant to Section iVY imposes a Business License Tax at a rate that is different from the rate set forth in Exhibit E, the compensation to be received by the Municipality will be at the rate specified in such ordinance for the time period in which such ordinance was in effect. The Municipalities identified in Exhibit E are those which Class Counsel believes may have a Business License Tax and may be within the definition of a Class A City or a Class B City. Certain Municipalities identified on Exhibit E have not been classified by the Parties as a Class A City or a Class B City (collectively, the "TBD Cities") because Class Counsel have been unable to obtain a copy of such TBD Cities' Business License Tax ordinance(s), if any. The TBD Cities are designated as such with a"0" on Exhibit E. For each TBD City, Exhibit E sets forth the calculations described above both assuming (1)the classification of the TBD City 24 EXECUTION COPY as a Class A City and (2)tite classification of the TBD City as a Class B City. To the extent that a TBD City submits a valid Claim Form, the Administrator, in consultation with Class Counsel and T-Mobile, will designate such TBD City as a Class A City or a Class B City, or as neither a Class A City nor a Class B City (in which case the TBD City will not be a member of the Settlement Class), based on the text of such Class Member's Business License Tax ordinance(s) as applied to the definitions of"Class A City" and "Class B City' set forth in this Settlement. The Administrator will notify the TBD City of such classification within fourteen (14) days of approving or rejecting the TBD City's Claim Form. Subject to the provisions of this Settlement, if a TBD City is designated as a Class A City by the Administrator, it will receive the Class A City benefits set forth on Exhibit E for that Class Member. Subject to the provisions of this Settlement, if a TBD City is designated as a Class B City by the.Administrator, it will receive the Class B City benefits set forth on Exhibit E for that Class Member. Subject to the provisions of this Settlement, if a TBD City is not designated as a Class A City or a Class B City by the Administrator, it will not be deemed a member of the Settlement Class. The classification of a TBD City by the Administrator as a Class A City or a Class B City will be final,subject only to a reclassification approved by T-]vtobile pursuant to such TBD City's appeal to the Administrator or Court under Section IV.]. C. Notice. Within twenty (20) days after the entry of the Preliminary Approval Order, and in accordance with the timetable established under the Preliminary Approval Order, the Administrator will mail the Notice together with a Claim Form, in the form attached hereto as Exhibit B, to each Municipality as described in Section I11.A. The Notice will inform the Municipalities of the conditional certification of the Settlement Class and the general terms of the Settlement Agreement, advise of the manner in which to opt out of or object to the 25 EXECUTION COPY Settlement,and state the date and time of the Final Fairness Hearing. The Notice to each Class Member will also contain the calculations set forth in Exhibit E for each such Class Member and the amounts set forth in Exhibit G for the Municipalities listed thereon. The Administrator will keep a written log of the date(s) on which each Notice and Claim Form is mailed to each Class Member. D. Website. Promptly after entry of the Preliminary Approval Order, and in accordance with the timetable established under the Preliminary Approval Order, Class Counsel will post or cause to have posted the Settlement Agreement and template Notice and Claim Form and a Frequently Asked Questions and Answers section (which will be subject to the prior review and approval of T-Mobile, but which approval will not be unreasonably withheld)on the Internet website of the Missouri Municipal League(http://www.mocities.com), said posting to be maintained from the first date of publication through the end of the Claim Period. To the extent that anything posted on such website is inconsistent with the terms of this Settlement Agreement, the terms of this Settlement Agreement will be controlling. E. Best Notice Practicable. Compliance with the procedures described in this Section 111 is the best notice practicable under the circumstances and will constitute due and sufficient notice to Class Members of the pendency of the Action,certification of the Settlement Class, the terms of the Settlement Agreement,and the Final Fairness Hearing, and will satisfy the requirements of the Missouri Supreme Court Rules, the Constitution of the State of Missouri, the United States Constitution, and any other applicable law. This Settlement Agreement will be binding even on Municipalities not receiving notice. 26 EXECUTION COPY IV. DISTRIBUTION OF SETTLEMENT CLASS RELIEF A. Funds Paid to Administrator and Disbursed to the Escrowed Cities and St. Louis. By not later than twenty-five(25)days after the Effective Date of the Settlement: 1. 5274,120 currently held in the Blue Springs Escrow Account(plus interest on such amount from April 1,2010) will be disbursed to the Administrator. (Subject to Section IV.A.8, T-Mobile will cause the remaining balance in the Blue Springs Escrow Account (which amount will include interest on the Escrowed Tax described in Section I11(b)(2)) to be disbursed to Blue Springs no later than thirty(30)days after the Effective Date of the Settlement.) 2. S179,088 currently held in the Gladstone Escrow Account(plus interest on such amount from April 1, 2010) will be disbursed to the Administrator. (Subject to Section IV.A.8, T-Mobile will cause the remaining balance in the Gladstone Escrow Account (which amount will include interest on the Escrowed Tax described in Section 111(b)(2)) to be disbursed to Gladstone no later than thirty(30)days after the Effective Date of the SettIement.) 3. $793,407 currently held in the Independence Escrow Account (plus interest on such amount from April 1, 2010) will be disbursed to the Administrator. (Subject to Section IV.A.8,T-Mobile will cause the remaining balance in the Independence Escrow Account (which amount will include interest on the Escrowed Tax described in Section 111(b)(2)) to be disbursed to Independence no later than thirty (30) days after the Effective Date of the Settlement.) 4. $159,520 currently held in the St.Joseph Escrow Account(plus interest on such amount from April 1, 2010) will be disbursed to the Administrator. (Subject to Section W.A.8. T-Mobile will cause the remaining balance in the St. Joseph Escrow Account (which amount will include interest on the Escrowed Tax described in Section 111(b)(2)) to be disbursed to St.Joseph no later than thirty(30)days after the Effective Date of the Settlement.) 5. 53,281,294 currently held in the St. Louis protest account pursuant to section 139.031,RSMo(the"St.Louis Account")will be disbursed to the Administrator. (After 27 EXECUTION COPY such amount is disbursed to the Administrator, the remaining balance in the St. Louis Account will be released for St. Louis' unrestricted use by reason of the dismissals described in Section VI.C.) 6. St. Louis will pay to the Administrator $750,000. For the avoidance of doubt, this $750,000 payment will be in addition to the payment to the Administrator from the St. Louis Account provided for in Section IV.A.5. 7. Kansas City will pay to the Administrator$260,000. For the avoidance of doubt, this $260,000 payment by Kansas City to the Administrator will be independent of and separate from the Settlement Payment that will be made by the Administrator to Kansas City. 8. Notwithstanding anything to the contrary in the foregoing, in the event that the amount of the Settlement Administration Fund (defined below), inclusive of the T- Mobile Settlement Payment (defined below in, and limited to the amount set forth in, Section IV.K.1)and the amounts set forth in Section W.A.1-7, is not sufficient for the Administrator to pay all of the amounts the Administrator is required to pay pursuant to this Settlement,additional amounts will be disbursed to the Administrator from the Escrow Accounts identified in subsections 1-4 above (and not to the respective Escrowed Cities) by not later than twenty-five (25) days after the Effective Date of the Settlement. Such amounts will be the lesser of (a) $16,782 from the Blue Springs Escrow Account, $9,377 from the Gladstone Escrow Account, $57,184 from the Independence Escrow Account, $14,901 from the St. Joseph Escrow Account, and the accrued interest on the Escrowed Tax described in Section III(b)(2) from April 1, 2010; or(b) the amounts (distributed on a pro rata basis) necessary to enable the Administrator to pay all of the amounts the Administrator is required to pay pursuant to this Settlement. The funds paid to the Administrator pursuant to this Section IV.A and Section IV.K.1 below will comprise the "Settlement Administration Fund." For the avoidance of doubt, the foregoing funds comprising the Settlement Administration Fund will be disbursed to Class Members and Class Counsel pursuant to the procedures set forth in this Settlement. Upon disbursement of the funds in the Escrow Accounts,as described above, the Escrow Accounts and 28 EXECUTION COPY all Escrow Agreements will be deemed terminated and of no further force or effect and superseded by this Settlement Agreement. B. Settlement Administration. The Settlement Class, Class Counsel or their designated agent(s) and T-Mobile will cooperate to assist the Administrator in performing all duties required of the Administrator pursuant to this Settlement Agreement, including, but not limited to, approving or rejecting CIaim Forms; determining which Municipalities have filed a valid and timely Request for Exclusion; and mailing checks, all as described below. Additionally, the Administrator will be obligated to bring to the Court's attention for resolution any disputes that arise in the course of the settlement administration process and cannot be resolved by agreement between T-Mobile and Class Counsel. C. Report on Requests for Exclusion. Within five (5) days of the last postmark date on which any Municipality will be permitted to submit a Request for Exclusion, the Administrator will prepare and file with the Court, after consultation with Class Counsel and T- Mobile, a report identifying each Municipality that has submitted a timely and valid Request for Exclusion from the Settlement Class. Such Municipalities will not be entitled to receive any of the benefits provided to Class Members under this Settlement, including (as applicable) the Settlement Payment and the Exhibit G Payment. D. Report on Members of the Settlement Class Ineligible To Receive Settlement Class Relief. Within live (5) days of the last postmark date on which any member of the Settlement Class will be permitted to submit a Claim Form or to resubmit a Claim Form as described herein,the Administrator will prepare and deliver to Class Counsel a report identifying all Class Members that have submitted a Claim Fomn as well as those Class Members who are 29 EXECUTION COPY deemed by the Administrator to be ineligible to receive the relief afforded to the Settlement Class under this Settlement on account of any deficiency in their Claim Form. E. Acceptance of Settlement Agreement. Each Class Member, in order to be entitled to (as applicable) the Settlement Payment and the Exhibit G Payment, must, within the Claim Period, take all actions necessary to make this Settlement Agreement enforceable against such CIass Member in accordance with Missouri law as well as local ordinances and enabling authority. F. Claim Form. Unless otherwise agreed in writing by T-Mobile, in order for a Municipality to receive (as applicable) the Settlement Payment and the Exhibit G Payment, it must complete,sign and submit to the Administrator by mail a hard copy of a Claim Form to the address specified on the Claim Form. The Claim Form will require the Municipality to provide the following: I. the name and address of the Municipality; 2. the name, address and telephone number of the Municipality's duly authorized representative(s), to whom all inquiries regarding the Claim Form and Business License Tax may be directed; 3. for Class A Cities, copies of the ordinances or municipal code provisions imposing the Business License Tax for all periods from September I, 2005 through and including December 16,2009; 4. for Class B Cities, copies of the ordinances or municipal code provisions imposing the Business License Tax for all periods from January 1, 1996 through and including December 16, 2009 (or, to the extent that a Municipality is unable to locate a copy of any such ordinance or municipal 30 EXECUTION COPY code provision in effect prior to September 1, 2005, an affidavit sworn to by an authorized representative identifying (a) the services taxed under each such ordinance or municipal code provision; and (b) the applicable tax rate under each such ordinance or municipal code provision); 5. copies of an ordinance enacted by the Municipality accepting all tenns and provisions of this Settlement Agreement or, if the Municipality chooses to effect its acceptance of all terms and conditions of this Settlement Agreement by another accepted, legally binding method, copies of an acknowledgment that the Municipality agrees to be bound by the terms of this Settlement Agreement if approved by the Court, which acknowledgment will describe the method used to accept this Settlement Agreement and will be accompanied by an opinion of counsel, addressed to the .Administrator, that the Settlement Agreement, if approved by the Court,is a binding obligation of the Municipality; 6. the name and address to which (as applicable) the Settlement Payment and Exhibit G Payment will be made and mailed. The person submitting the Claim Form must certify that (i) the infonnation contained in and submitted with the Claim Form is complete and accurate to the best of his/her and the Class Member's knowledge, after due inquiry; (ii) that he/she is authorized to submit the Claim Form on behalf of the Class Member and to make the attendant representations on behalf of the Class Member; (iii) that the Class Member agrees to be bound by the terns of this Settlement Agreement if approved by the Court; and(iv)that,prior to submitting the Claim Form,the Class 31 EXECUTION COPY Member has taken all actions necessary for this Settlement Agreement to be enforceable against the Class Member. All completed Claim Forms must be mailed to the address designated by the Administrator. The postmark deadline for submitting the Claim Form will be sixty (60) days from the date of the Notice. Subject to Section IV.I below,submission of a Claim Form will be deemed acceptance by the Class Member of the Parties' calculation of(as applicable) the Settlement Payment and the Exhibit G Payment and adequate consideration for the release and settlement of T-Mobile's past tax liability as set forth in this Settlement Agreement and such amounts will not be open to further audit or dispute. G. Approval and .Rejection of Claim Forms. The Administrator will determine whether a Claim Form is valid based solely upon the responses provided to the questions set Forth on the Claim Form.the documents provided with the Claim Form,and the postmarked date that the Claim Forn is submitted. To be valid,a Claim Form must: (1) be fully completed, as set forth in Section IVY; (2) be certified by a duly authorized representative of the Class Member, as set forth in Section IVY; and (3) be timely mailed to the Administrator. If the Administrator rejects a Claim Form, the Administrator will within 30 days of receipt notify Class Counsel. T- Mobile and the Municipality submitting the Claim Form of the rejection and the reasons for rejection in writing, as well as the procedure for challenging the rejection. Notwithstanding anything to the contrary in the foregoing, T-Mobile will contemporaneously agree and/or may hereinafter agree,pursuant to a separate written commitment or agreement, that a Municipality's Claim Form shall be deemed submitted, valid and approved and, in such case, the Administrator 32 EXECUTION COPY and T-Mobile shall pay each such Nlunicipality and otherwise act in accordance with the terms and procedures set forth in that separate commitment or agreement. H. Procedures for Challenging Rejection of Claim Forms. Subject to Section IV.] which provides the sole basis for a Municipality to challenge its classification as a Class A City or a Class B City, the amount of the Settlement Payment calculated by the Parties as set forth in Exhibit E. and/or the amount of the Exhibit G Payment set forth on Exhibit G, a 19unicipality that was notified by the Administrator that its Claim Form was rejected pursuant to the preceding Section will have the right to challenge the rejection under this Section W.H. Such Municipality will be permitted a period of thirty (30) days from the date of the mailing of the notice of rejection in which either to (a) resubmit the Claim Form to the Administrator with any missing information necessary for the Claim Form to be approved, or (b) notify the Administrator of its challenge to the rejection. Upon such notification, the Administrator promptly will notify Class Counsel and T-Mobile,who then will have the obligation to meet and confer with the Administrator and representatives of the Municipality in question in an attempt consensually to resolve the challenge. Failing consensual resolution, the Administrator will notify the challenging Municipality that it may, within ten (10) days of receipt of such notice, present the challenge through its counsel to the Court; provided, however, that any dispute regarding the classification of the Municipality as a Class A City or a Class B City and/or amount of the Settlement Payment and/or Exhibit G Payment will be handled pursuant to Section 1V.1,and not pursuant to this Section W.H. 1. Disputes as to Classification,Amount of Settlement Payment and Amount of Exhibit G Payment. 1. With respect to all Municipalities other than TBD Cities, in the event that 33 EXECUTION COPY a Municipality disagrees with(a)the classification of the Municipality as Class A City or a Class B City as set forth on Exhibit E, (b)the calculation of the Settlement Payment as set forth on Exhibit E and/or(c)the amount of the Exhibit G Payment set forth on Exhibit G such Municipality will submit with its Claim Form a detailed explanation as to why it believes it should be classified as a Class A City or a Class B City and/or why it believes that the Settlement Payment and/or Exhibit G Payment was incoiTectly calculated. Tile Administrator will promptly provide T-Mobile and Class Counsel with a copy of such Claim Form (including the explanatory material provided by the Municipality). If T- Mobile disagrees with such a Municipality's contention(s), T-Mobile will meet and confer in good faith'with Class Counsel and representatives of the Municipality in question in an effort to resolve the issue(s): If, despite such consultation, the Municipality and T-Mobile do not agree as to the classification of the Municipality as a Class A City or a Class B City and/or on the amount of the Settlement Payment and/or Exhibit G Payment, the classification of the Municipality set forth on Exhibit E will be binding, the amount of the Settlement Payment contained in the Notice will be the amount the Municipality will be entitled to receive and/or the amount of the Exhibit G Payment set forth on Exhibit G will be the amount the Municipality will be entitled to receive, subject only to the Municipality's right to opt out of the Settlement, which opt- out deadline will be extended for such Municipality only for a period of 30 days to resolve disputes related solely to the classification of the Municipality and/or the amount of the Settlement Payment and/or Exhibit G Payment. Such right to opt out will be the sole remedy of such Municipality, and the disagreement as to the classification of the Municipality as a Class A City or a Class B City and/or amount of the Settlement 34 EXECUTION COPY Payment and/or Exhibit G Payment will not be subject to challenge or appeal pursuant to Section 1V.FI or otherwise. Z. With respect to TBD Cities, in the event that a TBD City disagrees with the Administrator's classification of the TBD City as a Class A City or a Class B City, such TBD City will, within fourteen (14) days of being notified by the Administrator of the Administrator's classification of the TBD City as a Class A City or a Class B City, submit to the Administrator a detailed explanation as to why it believes it was improperly classified as a Class A City or a Class B City. The Administrator will promptly provide T-Mobile and Class Counsel with a copy of such submission. If T-Mobile disagrees with such a TBD City's contention(s),T-Mobile will meet and confer in good faith with Class Counsel and representatives of the TBD City in an effort to resolve the issue(s). If, despite such consultation, the TBD City and T-iVlobile do not agree as to the classification of the TBD City as a Class A City or a Class B City, the Administrator will notify the TBD City that it may,within ten (10)days of receipt of such notice, present the classification dispute through its counsel to the Court. If a TBD City presents a classification dispute to the Court, in order to prevail the TBD City have the burden of demonstrating to the Court that the Administrator's classification of the TBD City was arbitrary and capricious. 3. With respect to TBD Cities, in the event that a TBD City disagrees with the calculation of the Settlement Payment as set forth in the Notice, such TBD City will submit with its Claim Form a detailed explanation as to why it believes that the Settlement Payment was incorrectly calculated. The Administrator will promptly provide T-Mobile and Class Counsel with a copy of such Claim Form (including the explanatory 35 EXECUTION COPY material provided by the TBD City). If T-Mobile disagrees with such a TBD City's contention(s), T-Mobile will meet and confer in good faith with Class Counsel and representatives of the TBD City in question in an effort to resolve the issue. If, despite such consultation, the TBD City and T-Mobile do not agree on tite amount of the Settlement Payment, the amount of the Settlement Payment contained in the Notice will be the amount the TBD City will be entitled to receive, subject only to the TBD City's right to opt out of the Settlement, which opt-out deadline will be extended for such TBD City for a period of 30 days to resolve disputes related solely to the amount of the Settlement Payment. Such right to opt out will be the sole remedy of such TBD City,and the disagreement as to the amount of the Settlement Payment will not be subject to challenge or appeal pursuant to Section IV.H or otherwise. J. Payment and Processing of Approved Claims. In the case of Approved Claims, payment of the Settlement Payment will be paid by check that is mailed by the Administrator on or before the applicable date(s) specified in Section If to the name and address provided by the Municipality pursuant to Section IV.F.5. K. T-Mobile Settlement Payment, T-Mobile's Maximum Obligation and Right to Terminate the Settlement. 1. By not later than twenty-five (25) days after the Effective Date of the Settlement, T-Mobile will pay to the Administrator the amount that will cause the Settlement Administration Fund to be sufficient for the Administrator to pay all of the amounts the Administrator is required to pay pursuant to this Settlement, provided however that T-Mobile will have no obligation to pay to the Administrator more than $8,487,640 (the "T-Mobile Settlement Payment'). For the avoidance of doubt, unless 36 EXECUTION COPY otherwise agreed by T-Mobile in writing T-Mobile will have no obligation to make any payments under this Settlement other than (a) the T-Mobile Settlement Payment, up to the maximum amount set forth in the immediately preceding sentence; (b) the Exhibit G Payments; (c) Future Tax Payments (to the extent not already paid by T-Mobile) for any periods after December 31, 2009; and (d) any expenditures that may be required by Sections V.A. V.B or IX.Q. 2. In the event that the amount of the Settlement Administration Fund, inclusive of the T-Mobile Settlement Payment and the amounts set forth in Section IV.A.1-8, is not sufficient for the Administrator to pay all of the amounts the Administrator is required to pay pursuant to this Settlement, T-Mobile must elect, at its sole and absolute discretion, to either (a) terminale this Settlement or (b) pay to the Administrator such additional funds as will enable the Administrator to pay all of the amounts the Administrator is required to pay pursuant to this Settlement. T-Mobile's election to terminate this.Settlement pursuant to the immediately preceding sentence will be made by no later than the Effective Date of this Settlement and pursuant to written notice to Class Counsel. If T-Mobile does not so elect to terminate this Settlement,it will pay all necessary additional Funds no later than twenty-five (25) days after the Effective Date of the Settlement. 3. In the event that T-Mobile elects to terminate this Settlement pursuant to the immediately foregoing subsection, (a)this Settlement Agreement will be considered null and void; (b)neither this Settlement Agreement nor any of the related negotiations will be of any force or effect; (c) the certification of the Settlement Class for settlement purposes will be vacated and any findings regarding the certification will not be used or 37 EXECUTION COPY admissible for any purpose in the Action, the Protested Tax Litigation, or any other proceedings involving the-subject matter of the Action or the Protested Tax Litigation; and (d)all Parties to this Settlement Agreement will stand in the same position, without prejudice,as if the Settlement Agreement had neither been entered into nor filed with the Court. 4. To the extent that a Municipality identified in Exhibit E opts out of this Settlement pursuant to Section VII.D,'the amount of the T-Mobile Settlement Payment will be reduced, dollar-for-dollar, by the amount calculated by the Parties' to be paid to such Municipality by the Administrator as set forth in Exhibit E. 5. T-Mobile hereby warrants,guarantees and assumes liability for the faithful performance by the Administrator of its duties and obligations, as set forth in this Agreement. L. Effect of Class Members not Submitting Valid Claims. To the extent that, as a consequence of Municipalities identified in Exhibit E not submitting valid claims (exclusive of any Municipalities that'opt out of this Settlement pursuant to Section VILD), the aggregate amount calculated by the Parties to be paid to such Municipalities by die Administrator as set Forth in Exhibit E exceeds $126,000, the amount required to be paid by St. Louis and Kansas City to the Administrator pursuant to Sections IV.A.6 and 1V.A.7 will be reduced, in the aggregate, by such excess amount up to a total of $410,000 (in the ratio of 15:26 (St. Louis:Kansas City)). To the extent that,as a consequence of Municipalities identified in Exhibit E not submitting valid claims (exclusive of any Municipalities that opt out of this Settlement pursuant to Section VII.D), the aggregate amount calculated by the Parties to be paid to such Municipalities by the Administrator as set forth in Exhibit E exceeds $536,000, the amount of 38 EXECUTION COPY the T-Mobile Settlement Payment will be further reduced by such excess amount. V. PAYMENT OF ATTORNEYS' FEES AND EXPENSES AND SETTLEMENT COSTS Attorneys'fees and expenses and settlement costs will be paid as follows: A. Costs of Notice. T-Mobile will be responsible for the cost of providing notice of the proposed Settlement to the Municipalities as provided herein, including costs of identifying members of the Settlement Class, costs of printing the Notice, and costs of mailing the Notice, and will be responsible for working with the Administrator in printing the Notice, Claim Forms, and other necessary documents. If,for any reason, the Effective Date of the Settlement does not occur, then the costs of providing notice to the Settlement Class that are incurred by T-tkklobile will nevertheless be borne by T-Mobile. Notwithstanding the foregoing, T-Mobile may make a motion in the Court to seek reimbursement of such costs based on and to be granted solely upon a showing by T-Mobile that the Effective Date did not occur by reason of any bad faith act or omission on the part of Class Counsel. B. Costs of Administering Settlement. T-Mobile will bear all reasonable costs of administering the Settlement, including without limitation all costs and fees of the Administrator. if, for any reason, the Effective Date of the Settlement does not occur, then the costs of administering the Settlement that are incurred by T-Mobile will nevertheless be borne by T- Mobile. Notwithstanding the foregoing, T-Mobile may make a motion in the Court to seek reimbursement of such costs and fees based on and to be granted solely upon a showing by T- ivlobile that the Effective Date did not occur by reason of any bad faith act or omission on the part of Class Counsel. C. Attorneys' Fees, Expenses, and Attorneys' Liens. Class Counsel will make a Fee and Expense Application to be heard in connection with the Final Fairness }-tearing, 39 EXECUTION COPY requesting that the Court award attorneys' fees, costs and expenses in the amount of $3,093,094.00 (collectively, the "Agreed Fees"), which will be separately paid by the Administrator and will not reduce or diminish in any way the recoveries of the Class Members. T-Mobile agrees not to oppose such request up to the amount of the Agreed Fees. If the Court awards attorneys' fees, costs and expenses in an amount greater than the Agreed Fees,the Parties agree that the Administrator will pay only the amount of the Agreed Fees. The Administrator will pay the amount of attorneys' fees, costs and expenses awarded to Class Counsel by the Court no sooner than thirty-five (35) day after the Effective Date of the Settlement and no later than forty-five (45) days after the Effective Date of the SettIement. Upon full payment of the amount of attorneys' fees, costs and expenses awarded to Class Counsel by the Court, Class Counsel will be deemed to release and discharge the Administrator and T-Mobile from and against any and all attorneys' liens they may have on any and all sums paid to or for the benefit of each Municipality hereunder, including without limitation any attorneys' lien pursuant to Sections 484.130 and 484.140, RSNIo; ropv_ided,however, that if the Administrator is required to effect payment(as applicable)of the Settlement Payments or Exhibit G Payment,or if the release of any Protested Tax or disbursement of any Escrowed Tax is required, before such full payment of the amount of attorneys' fees,costs and expenses awarded to Class Counsel by the Court, then Class Counsel hereby consents to such payment and agrees that, notwithstanding anything to the contrary, including without limitation Sections 484.130 and 484.140, RSMo, the payment (as applicable)of the Settlement Payments or Exhibit G Payments,or release of the Protested Tax or disbursement of Escrowed Tax, will not require the Administrator to pay attorneys' fees, costs and expenses to Class Counsel in an amount greater than the amount of the Agreed Fees. To the extent practicable, the Administrator will maintain the funds necessary to pay to Class Counsel 40 EXECUTION COPY the amount of attorneys' fees, costs and expenses awarded to Class Counsel by the Court in an interest-bearing account. If the Administrator maintains such fiends in an interest-bearing account, the Administrator will pay to Class Counsel any interest which may accumulate on the funds necessary to pay to Class Counsel the amount of attorneys' fees, costs and expenses awarded to CIass Counsel by the Court. D. Severability of Attorneys' Fees and Expenses. The Parties agree that the rulings of the Court regarding the amount of attorneys' fees, costs and expenses, and any claim or dispute relating thereto,will be considered by the Court separately from the remaining matters to be considered at the Final Fairness Hearing as provided for in this Settlement Agreement. Any order or proceedings relating solely to the amount of attorneys' fees, costs or expenses, and any appeal fi•om any order related thereto, will not operate to terminate or cancel the Settlement Agreement. affect the Releases provided for in the Settlement Agreement, or affect whether the Order and Judgment of Dismissal are Final. VI. RELEASES AND DISMISSALS In order to effectuate the Parties' desire to fully, finally and Forever settle, compromise, and discharge all disputes arising from or related to the Action by way of compromise rather than by way of further litigation, the Releasing Iviunicipal Parties and the T-Ml obile Released Parties agree as follows: A. Release by Releasing Municipal Parties. Unless this Settlement is nullified pursuant to Section 1V.K or Section IX.L or Section IX.O, upon the Effective Date of the Settlement the Releasing Parties will be deemed to have, and by operation of the Judgment and Order of Dismissal will have, fully, finally, and forever released, relinquished, and discharged the Released Claims, as defined in Section I.NN. Further, unless this Settlement is nullified 41 EXECUTION COPY pursuant to Section IV.K or Section IX.L or Section IX.O, upon the Effective Date of the Settlement and to the fullest extent pennitted by law, Plaintiffs and each of the Class Members will be barred and estopped from commencing, prosecuting, or participating in, either directly, indirectly, representatively,as a member of or on behalf of the general public,or in any capacity, any recovery in any action in this or any other forum(other than participation in the settlement as provided herein) in which any of the Released Claims is asserted. Nothing in this Settlement Agreement will be construed as a release of any claims against any other defendants in the Action who are not parties to this Settlement Agreement. B. Release by T-Mobile Released Parties. Unless this Settlement is nullified pursuant to Section IV.K or Section IX.L or Section 1X.0, upon the Effective Date of the Settlement, the T-Mobile Released Parties will be deemed to have, and by operation of the Judgment and Order of Dismissal will have, fully,finally,and forever released, relinquished, and discharged Plaintiffs, the Class Members and Class Counsel, from all claims arising out of, in any way relating to, or in connection with the institution, prosecution, discharge, assertion, settlement, or resolution of the Action, the Escrow Accounts and Escrow Agreements, or the Released Claims. Unless this Settlement is nullified pursuant to Section IV.K or Section IX.L or Section IX.O, and subject to T-Mobile's rights with respect to Future Taxes under Section II.A.4, in any future dispute relating to T-Mobile's payment of Business License Tax the T-Mobile Released Parties will not raise any claims or defenses relating to the enactment or validity of the Class Members' Business License Tax ordinances in the form existing as of December 16, 2009 or the applicability of these ordinances to Services. C. Dismissals and Stay of Protested Tax Litigation. Unless this Settlement is nullified pursuant to Section IV.K or Section IX.L or Section IX.O, T-Mobile agrees to cause T- 42 EXECUTION COPY Mobile Central to file, no later than fifty(50) days after the Effective Date of the Settlement, the appropriate motions to dismiss the Protested Tax Litigation against Class Members, dismissing all claims against the Class Members related to Protested Taxes paid, but without prejudice to any claims not barred by this Agreement with regard to Business License Taxes imposed on or after December 16,2009. The Parties agree to seek a stay of all proceedings in the Protested Tax Litigation (except for Protested Tax Litigation pending against Odessa, Missouri) pending the Effective Date of the Settlement. D. Pass Through to Customers. The Class Members agree not to challenge T- Mobile's right to pass through to its subscribers all or any part of the sums paid to a Class Member under the Business License Tax ordinances and this Settlement Agreement, provided, however,that the foregoing restriction does not apply to the T-rylobile Settlement Payment. E. Preclusive Effect. Unless this Settlement is nullified pursuant to Section IV.K or Section IX.L or Section IX.O, on the Effective Date of the Settlement Plaintiffs and each and every Class Member will be bound by this Settlement Agreement and will have recourse exclusively to the benefits, rights and remedies provided hereunder. No other action, demand, suit or other claim may be pursued against the T-Mobile Released Parties with respect to the Released Claims by the Releasing Municipal Parties. The Parties acknowledge and agree that T- Mobile's agreement to make (as applicable) the T-Mobile Settlement Payment and Exhibit G Payments,to pay the Class Members' Business License Tax going forward, and to agree to have the Administrator pay to Class Counsel the amount of attorneys' fees, costs and expenses awarded to Class Counsel by the Court, is based on each such Municipality's representation that it has the authority to enter into, and will be bound by, this Settlement Agreement. The Parties further acknowledge and agree that, in the event a court of competent jurisdiction declares 43 EXECUTION COPY that this Settlement Agreement is unenforceable against, or can be voided or rescinded by, any Class Member, it would be unjust and inequitable for such Class Member to retain the consideration received by it hereunder, yet reinstitute any legal proceeding against T-Mobile with respect to the matters released herein. Notwithstanding anything to the contrary contained herein or provided under applicable law (including without limitation,to the extent applicable,Section 432.070, RSMo), the dismissal with prejudice of the Class Members' action(s) as set forth herein will be res judicata and will bar the re-filing orally and all claims that were or could have been brought by the Class Members. In addition, in the event that, despite the provisions of this Settlement Agreement, any Released Party is permitted in the future to pursue any claim that is or was a Released Claim under this Agreement,such Released Party will forfeit and return to T-Mobile, prior to proceeding with any such claim, the Settlement Payment (and any Exhibit G Payment) received pursuant to this Agreement. For avoidance of doubt, the provisions of this Section will be severable from the remaining provisions of this Settlement Agreement, and the Parties acknowledge and agree that the consideration given by T- {Mobile under this Settlement Agreement constitutes fair and adequate consideration for the releases by the Class Members hereunder, and for the obligations of the Class Members and Class Counsel under this Section and the remaining Sections of this Settlement Agreement. F. Mistake. In entering into this Settlement Agreement, the Releasing Municipal Parties and the T-Mobile Released Parties each assume the risk of any mistake of fact or law. If they, or any of them, should later discover that any fact which they relied upon in entering this Agreement is not true, or that their understanding of the facts or law was incorrect,they will not be entitled to set aside this Settlement Agreement by reason thereof. 44 EXECUTION COPY G. Covenant Not to Sue. Unless this Settlement is nullified pursuant to Section IV.K or Section XL or Section IX.O.as of the Effective Date of the Settlement this Settlement Agreement may be pled as a full and complete defense to any Released Claims that may be instituted, prosecuted or attempted in breach of this Settlement Agreement. Unless this Settlement is nullified pursuant to Section IV.K or Section IX.L or Section IX.O, the Releasing Municipal Parties covenant that they will not institute or prosecute, against the T-Mobile Released Parties, or any of them, any action, suit or other proceeding based in whole or in part upon any of the Released Claims,and the T-Mobile Released Parties likewise covenant that they will not institute or prosecute against the Releasing Municipal Parties or any of them,any action, suit or other proceeding based in whole or in part upon any of the Released Claims nor based in whole or in part on the defenses, counterclaims, or other assertions raised by the T-Mobile Released Parties in the Action or in the Protested Tax Litigation or both with respect to the Class Members' Business License Tax ordinances in the form existing as of December lb, 2009. For the sake of clarification, T-%Mobile agrees, unless this Settlement is nullified pursuant to Section IV.K or Section XL or Section 1X.0 and subject to T-Mobilc's rights with respect to Future Taxes under Section II.AA, not to initiate or support any litigation to challenge the applicability of the Class h'lember's Business License Tax ordinance to Services in the form existing as of December 16,2009. H. Injunctive Relief. The Parties, and each of them, covenant that this Settlement Agreement may be used as a basis for a temporary restraining order, preliminary injunction and permanent injunction against any breach of this Agreement. The Parties judicially admit hereby for all purposes that time is of the essence as to all terms and conditions of the Settlement Agreement and that damages for a breach of this Settlement Agreement would be inadequate. 45 EXECUTION COPY VII. CERTIFICATION OF SETTLEMENT CLASS AND COURT APPROVAL OF THE SETTLEMENT The Parties will use their respective best efforts to obtain Court approval of this Settlement Agreement. The process for obtaining Court approval of this Settlement Agreement will be as follows: A. Appointment of Class Representatives and Class Counsel. For settlement purposes only, Plaintiffs and T-Mobile will request, as part of the Preliminary Approval Order, that the Court make preliminary findings and enter an Order granting provisional certification of the Settlement Class, subject to final findings and ratification of the Judgment and Order of Dismissal, and appointing Plaintiffs as Class Representatives of the Settlement Class, and John W. Hoffman and Douglas R. Sprong, ICorein Tillery, LLC, 505 N. 7"' Street, Suite 3600, St. Louis, MO 63101; John F. Mulligan, Jr., 1600 South Hanley, Suite 101, St. Louis , MO 63144; and Howard Paperner,9322 Manchester Road,St. Louis, MO 63119,as Class Counsel. B. Conditional Certification. T-Mobile consents to certification of the Settlement Class for the sole purpose of effectuating the settlement of this Action. If this Settlement Agreement is terminated or nullified pursuant to its terms, or if the Settlement Agreement is not approved, the order conditionally certifying the Settlement Class will be automatically vacated upon notice to the Court of the termination of the Settlement Agreement, and the matter will proceed as though the Settlement Class had never been conditionally certified and such findings had never been made, without prejudice to the ability of any party thereafter to request or oppose class certification on any basis. C. Preliminary Approval. As soon as practicable after the execution of this Settlement Agreement by Class Counsel and Defendants' Counsel, but no later than ten (10) days after execution of this Settlement Agreement, unless an extension is agreed to by 46 EXECUTION COPY Defendants' Counsel and Class Counsel, Class Counsel and Defendants' Counsel will submit the Settlement Agreement to the Court and will jointly request entry of the Preliminary Approval Order substantially in the form of Exhibit C hereto. The Preliminary Approval Order will include provisions: (I)preliminarily certifying the Settlement Class for Settlement purposes only; (Z) preliminarily approving Plaintiffs as Class Representatives, (3) preliminarily approving this Settlement and finding this Settlement sufficiently fair, reasonable and adequate to allow Notice to be disseminated to the Settlement Class; (4) approving the form of the Notice; (5)setting a schedule for final approval of the Settlement;(6) providing an Opt-Out Date and an Objection Date; and (7) providing that, pending entry of the Order and Judgment, neither Plaintiffs nor any Class Member (either directly, in a representative capacity, or in any other capacity) will commence or continue any action against T-Mobile asserting any of the Released Claims and that all proceedings in the Action are stayed, other than such proceedings as are related to the Settlement. D. Opt-Out Procedure. Each member of the Settlement Class wishing to opt out of the Settlement Class will individually sign and timely submit a Request for Exclusion to a designated address. To be valid, the Request for Exclusion must: (a) set forth the name of the Municipality and its duly authorized representative's name, address and phone number, and the name and cause number of the Action (01y of University City, Missouri, et al. v. AMT R"ireless Services, Inc., et al., cause number 01-CC-004451);(b)be signed by an authorized representative of the Municipality; (c) clearly manifest an intent to be excluded from the Settlement Class, and (d) be postmarked no later than forty five (45) days after the date of the Notice. For the avoidance of doubt, neither the terms of this Settlement nor T-Mobile's acceptance of those terms will in any way affect or impair any defense or other right of T-Mobile with respect to any 47 EXECUTION COPY claims that are or may be asserted by any Municipality that timely submits a Request for Exclusion from the Settlement Class. E. Objections to Settlement. All Class Members who wish to object to the proposed Settlement and/or the Fee and Expense Application may do so by filing a written Objection, stating, in detail, the substance of the objection and the reason(s) therefor. The Objection must be filed with the Clerk of the Court and served upon counsel for all parties, whose names and addresses are listed in the Notice,within forty-five (45)days of the date of the Notice. Any Class Member may appear at the Final Fairness Hearing by duly authorized counsel and be heard, in support of or in opposition to the fairness, reasonableness, or adequacy of the proposed settlement. No Class Member or counsel,however, will be heard at the hearing, and no paper, brief, or evidence submitted by any such person will be received or considered by the Court, unless such person, within forty-five (45) days of the date of the Notice, files with the Clerk of Court and serves upon counsel for all Parties, whose names and addresses will be listed in the Notice, a notice of his, her or its intention to appear, a statement of the position he, she or it will assert,and the reasons for his, her or its position, and all papers, briefs, or other evidence that he,she or it intends to present to the Court in support of such position. F. Final Fairness Hearing. On the date set forth in the Preliminary Approval Order, which will be approximately ninety (90) days after the date of the Notice or on such later date as may be deemed necessary by the Parties in order to permit the orderly conclusion of the procedures for processing claims set forth in this Settlement (including, without limitation, the procedures set forth in Section 1V.H and Section IV.1), the Court will conduct a Final Fairness Hearing in order to: (1) determine whether to grant final approval to this Settlement Agreement; (2) consider any timely objections to this Settlement and all responses to objections by the 48 EXECUTION COPY Parties; and (3) rule on the Fee and Expense Application. At the Final Fairness Hearing, the Parties will ask the Court to give final approval to this Settlement Agreement. if the Court grants final approval to this Settlement Agreement,then the Court will enter an Order and Judgment of Dismissal, substantially in the form of Exhibit D hereto, which approves the Settlement, authorizes entry of a final judgment, dismisses the Action with prejudice with respect to T- Mobile,and dismisses T-Mobile's counterclaims raised in the Action with prejudice with respect to the CIass Members. For avoidance of doubt,the dismissal ofT-Mobile's counterclaims herein will be without prejudice to any claims not barred by this Settlement Agreement with regard to Business License Taxes imposed on or after the Effective Date of this Settlement, e.g., in the event of any judgment, legislation or other change of law as provided in Section II.A.4 above. In the event that the Parties deem it necessary to adjourn the date of the Final Fairness Hearing set forth in the Preliminary Approval Order, the Parties will promptly consult with the Court concerning the selection of a new date and then provide notice of the new date to Municipalities by posting same on the website of the Missouri ivlunicipal League. Further, either Plaintiffs or T-Mobile may make an application to the Court to adjourn the date of the Final Fairness Hearing set forth in the Preliminary Approval Order for good cause. The Parties agree that good cause for the adjournment of the date of the Final Fairness hearing includes, but is not limited to, a circumstance where the procedures set forth in Section 1V.H and Section IV.I of this Agreement have not concluded and it is possible that, upon the conclusion of such procedures, T-Mobile would have the option to terminate this Settlement pursuant to Section IV.K.2. VIII. LIMITATIONS ON USE OF SETTLEMENT AGREEMENT The Parties' use of the Settlement Agreement will be limited as follows: 49 EXECUTION COPY A. No Admission. Neither the terms of this Settlement Agreement nor the acceptance by T-Mobile of the terms of this Settlement Agreement nor any of the related negotiations or proceedings is or will be construed as or deemed to be legal evidence of an admission by any of the T-Mobile Released Parties with respect to the merits of the claims alleged in the Action.the validity of any claims that could have been asserted by any of the Class Members in the Action, or the liability of any of the T-Mobile Released Parties in the Action. T- Mobile specifically denies any liability or wrongdoing of any kind associated with the claims alleged in the Action. For avoidance of doubt,nothing contained herein is intended to be, or will be construed as, an admission by T-Mobile that it is a "telephone company," "exchange telephone company," "local exchange telephone company," "telephone exchange company," "local telephone exchange company," "public utility" or "utility," or a provider of"telephone service, "exchange telephone" service, "local exchange telephone" service, "telephone exchange" service or "local telephone exchange" service under Missouri law or otherwise, or subject to the jurisdiction or regulation of the Missouri Public Service Commission or any Municipality. Aside from the obligation to pay taxes going forward,as set forth in Section II.A.'1 above, this Settlement Agreement is not intended to, and will not be construed as imposing any other obligations on T-Mobile under the Class Member's respective ordinances, including without limitation any rate regulation or customer service requirements. B. No Evidentiary Use. This Agreement will not be used, offered or received into evidence in the Action for any purpose other than to enforce, construe or finalize the ten-ns of the Settlement Agreement and/or to obtain the preliminary and final approval by the Court of the terms of the Settlement Agreement. Neither this Agreement nor any of its tenns will be offered 50 EXECUTION COPY or received into evidence in any other action or proceeding except in a proceeding by a third party challenging any of the payments or obligations hereunder. C. Characterization to Media. In the event any undersigned counsel for any Party contacts or is contacted by any member of the media regarding the Action or this Settlement Agreement, said counsel will not (1) refer to or characterize the Action or the Settlement Agreement as continuing or evidencing an admission or inference of (a) liability, fault or wrongdoing on the part of Defendants or Defendants' Counsel, including any wrongdoing in connection with the defense of the Action; or (b) lack of merit of any claim asserted in the Action, or wrongdoing on the part of Plaintiffs, Class Counsel or the Class Members in connection with the institution, prosecution or settlement of the Action; or (2) make any statement that is calculated to disparage the reputation of any Party. IX. MISCELLANEOUS PROVISIONS A. Assignment. Except for the ordinary assignment of tax revenues in connection with municipal tax anticipations and other financings, or any assignment of any amount of Settlement Payment made to the Missouri Municipal League or St. Louis County Municipal League pursuant to the Claim Form (but only if such assignment to the \9issouri Municipal League or St. Louis County Municipal League is specifically authorized by an ordinance that is submitted with the Municipality's Claim Form), each Party represents, covenants and warrants that it has not directly or indirectly assigned, transferred, encumbered or purported to assign, transfer,or encumber to any person or entity any portion of any liability,claim,demand,cause of action or rights that it herein releases. B. Binding on Assigns. This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs; trustees,executors,successors and assigns. 51 EXECUTION COPY C. Captions and Interpretations. Section titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision hereof. Each term of this Agreement is contractual and not merely a recital. D. Construction. The Parties agree that the terms and conditions of this Settlement Agreement are the result of arms'-length negotiations between the Parties and that this Agreement will not be construed in favor or against any Party by reason of the extent to which any Party, or his,her or its counsel,participated in the drafting of this Agreement. E. Counterparts. This Agreement,and any amendments hereto, may be executed in any number of counterparts, and any Party may execute any such counterpart, each of which when executed and delivered will be deemed to be an original and all of which counterparts taken together will constitute but one and the same instrument. F. Governing Law. Construction and interpretation of the Agreement will be determined in accordance with the laws of the State of Missouri, irrespective of the State of Missouri's choice of law principles. G. Integration Clause. This Agreement, including the Exhibits referred to herein, which form an integral part hereof, contains the entire understanding of the Parties in respect of the subject matter contained herein. There are no promises, representations, warranties, covenants or undertakings governing the subject matter of this Agreement other than those expressly set forth in this Agreement. This Agreement supersedes all prior agreements and understandings among the Parties with respect to the settlement of the Action. This Agreement may not be changed, altered or modified, except in a writing signed by the Parties and approved 52 EXECUTION COPY by the Court. This Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by the Parties. H. Invalidation. The voiding, by Court order or otherwise, of any material portion of this Agreement will invalidate the Agreement in its entirety unless the Parties agree in writing that the remaining provisions will remain in full force and effect. I. Jurisdiction. The Court will retain jurisdiction, after entry of the Order and Judgment of Dismissal, with respect to enforcement of the teens of this Settlement, and all Parties and Class Members submit to the exclusive jurisdiction of the Court with respect to the enforcement of the Settlement and any dispute with respect thereto. J. Modification. If the Court orders any modification to the Settlement Agreement that has not beenpreviously agreed to by the Parties, as a condition of preliminary approval or final approval of the Settlement Agreement, then the Parties, and each of them, will have the option to rescind the Settlement Agreement and resume the Action if they are not willing to accept any such modification. K. No Collateral.Attack. This Agreement will not be subject to collateral attack by any Class Member at any time on or after the date upon which the Order and Judgment of Dismissal becomes Final. Such prohibited collateral attacks will include (but not be limited to) claims that a Class Members Claim Fonn was improperly rejected, that (as applicable) the Settlement Payment or Exhibit G Payment for a Class Member was improperly calculated, and/or that a Class Member failed to receive timely notice of the Settlement Agreement. L. Nullification. If, for any reason, the Court fails to grant preliminary approval or Final approval as provided herein, the Court fails to grant final approval to this Settlement Agreement or the approval of the Order and Judgment of Dismissal is reversed or rendered void 53 EXECUTION COPY as a result of an appeal, then: (])this Settlement Agreement will be considered null and void; (2)neither this Settlement Agreement nor any of the related negotiations will be of any force or effect; (3) the certification of the class for settlement purposes will be vacated and any findings regarding the certification will not be used or admissible for any purpose in the Action, the Protested Tax Litigation, or any other proceedings involving the subject matter of the Action; and (4)all Parties to this Settlement Agreement will stand in the same position, without prejudice,as if the Settlement Agreement had neither been entered into nor filed with the Court. M. Parties' Authority. The signatories hereto hereby represent that they are fully authorized to enter into this Agreement and bind the Parties to the terms and conditions hereof. N. Receipt of Advice of Counsel. The Parties acknowledge, agree, and specifically warrant to each other that they have read this Settlement Agreement, have received legal advice with respect to the advisability of entering into this Settlement,and fully understanding its legal effect. O. Right to Rescind for Unexpected Incidence of Exclusion. Upon the occurrence of any of the following events prior to the Effective Date of the Settlement,T=Mobile may,at its option, elect to rescind this Settlement Agreement: (i)fifty(50)or more Municipalities who fall within the definition of the Settlement Class validly and timely submit a Request for Exclusion from the Settlement Class; (ii) Municipalities representing ten percent (I0%) or more of 'f- Mobile' potential Total Past Tax Consideration validly and timely submit a Request for Exclusion from the Settlement Class; or (iii) any of the Escrowed Cities, St. Louis or Kansas City timely submit a Request for Exclusion from the Settlement Class. T-Mobile's election to rescind pursuant to this Section must be made in writing and be delivered to Class Counsel no 54 EXECUTION COPY later than the Effective Date of the Settlement. Upon the exercise by T-Mobile of the option to terminate, this Agreement will be nullified as set forth above in Section IX.L. P. Waiver of Compliance. Any failure of any Party to comply with any obligation, covenant, agreement or condition herein may be expressly waived in writing, to the extent permitted under applicable law, by the Party or Parties entitled to the benefit of such obligation, covenant, agreement or condition. A waiver or failure to insist upon strict compliance with any representation, warranty, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Q. Indemnification of Escrowed Cities,St. Louis and Kansas City. T-Mobile, on its own behalf and on behalf of its successors,agrees to defend, indemnify and hold harmless the Escrowed Cities, St. Louis, I(ansas City and Class Counsel, individually and collectively, and each of their officers, officials, employees and agents (the "Indemnified Parties"), from and against all claims, actions, proceedings, demands, rights, liabilities, arbitrations, suits; complaints, causes of action (including, but not limited to, claims based on violations) of any federal, state or local law, ordinance or regulation, fraud, unjust enrichment, and breach of contract, and claims arising under the laws of any other jurisdiction), requests for damages, requests for injunctive relief, requests for disgorgement of monies, requests for refunds, requests for declaratory relief, requests for equitable relief of every nature and description whatsoever, and requests for attorneys' fees, costs, and expenses, whether known or unknown,arising out of the payment or use of the finds specified in Section W.A.1-8 herein (each a "Claim"). Each Indemnified Party will cooperate with T-Mobile in the defense of any Claim. In the event T- Mobile fails to provide an adequate and reasonable defense,the Indemnified Parties may defend themselves and seek compensation and damages for same from T-Mobile. The Indemnified 55 EXECUTION COPY Parties will have the right to settle any Claim should T-Mobile fail to reasonably defend the Indemnified Parties. Further,the Indemnified Parties will have the right to bring an action or suit seeking compensation for all attorneys' fees, costs, time and expenses required to enforce this paragraph. Nothing in this paragraph will preclude or limit the assertion of any defense to any Claim (including, without limitation, that such Claim is barred, in whole or in part, by the Court's approval of this Settlement). 56 EXECUTION COPY IN WITNESS WHEREOF, Plaintiffs' counsel and proposed Class Counsel and Defendants' Counsel have executed this Settlement Agreement on this 28th day of June, 2010; subject to Court approval. Plailitiffs'Counsel and Proposed Class Counsel: A��By: Y y Jo in W Hoffman Do -las .Sprong Korein illery, LLC 505 N. 7`h Street,Suite 3600 St. Louis, MO 63101 By: John F Mulligan, r. 1600 uth Hanley, Suite 101 St. Louis, MO 63144 By: f� K Howard Pa emer 9322 Manchester Road St. Louis,MO 63119 57 EXECUTION COPY Defendants'Counsel: By: 4 I&QA&d Mark Lead Iove, 33205 Edward F. Downey,#28866 Mili Joseph 459981 Bryan Cave LLP One Metropolitan Square 211 North Broadway,Suite 3600 St. Louis, MO 63102-2750 Telephone: (314)259-2000 Facsimile: (314)259-2020 By: E�6dle,y'l. Ruskin (Michael T. Mervis Proskauer Rose LLP 1585 Broadway New York,New York 10036 Telephone: (212)969-3000 Facsimile: (212) 969-2900 58 IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, STATE OF MISSOURI CITY OF UNIVERSITY CITY, ) MISSOURI,et a[., ) Plaintiffs, ) Case No. 01-CC-004454 vs. ) Division No._ AT&T WIRELESS SERVICES, ) INC.,et al., ) } Defendants. ) ORDER AND JUDGMENT OF DISMISSAL WHEREAS, on 2010, a Preliminary Approval Order was entered by this Court,preliminarily approving the proposed settlement of the Action(the "Settlement")pursuant to the terms of the Settlement Agreement and directing that Notice be given to the members of the Settlement Class; WHEREAS,pursuant to the Parties' plan for providing Notice to the Municipalities(the "Notice Plan"), Municipalities were to receive a Notice of Class Action Settlement and Approval Hearing by first class mail ("Notice")to determine,infer alicr,(1) whether the terms and conditions of the Settlement Agreement are fair;reasonable and adequate for the release of the Released Claims against the T-Mobile Released Parties;(2)whether judgment should be entered dismissing the Plaintiffs' Second Amended Petition for Declaratory Judgment and Other Relief with prejudice;and(3)whether Class Counsel's Fee and Expense Application should be approved; WHEREAS,prior to the Final Fairness Hearing,declarations were filed with the Court stating that on ,2010, the Administrator sent the Notice and Claim Form packets to Missouri Municipalities; 1 Exhibit D WHEREAS, Class Members were notified of their right to appear at the Final Fairness Hearing in support of or in opposition to the proposed Settlement and the Fee and Expense Application; WHEREAS,a Final Fairness Hearing was held on 52010, at which time no Class Member objectors appeared and the Court considered all properly filed written objections and heard argument from the Parties' counsel; NOW,THEREFORE, the Court,having heard the presentations of Class Counsel and Defendants' Counsel_having reviewed all of the submissions presented with respect to the proposed Settlement, and having reviewed the materials in support thereof, HEREBY ORDERS.ADJUDGES AND DECREES THAT: 1. The capitalized terms used but not defined in this Order and Judgment of Dismissal shall have the meanings as defined in the Settlement Agreement. 2. The Court has jurisdiction over the subject matter of this Action and over all claims raised therein and all parties thereto, including the Settlement Class. 3. The Court finds, for purposes of effectuating the Settlement only,that each element for certification of the Settlement Class pursuant to Missouri Rule of Civil Procedure 52.08 is met: (a) the members of the Settlement Class are so numerous that joinder of all Class Members in the litigation is impracticable; (b)there are questions of law and fact common to the Settlement Class which predominate over any individual questions;(c)the claims of Plaintiffs are typical of the claims of the Settlement Class;(d)Plaintiffs and Class Counsel have fairly and adequately represented and protected the interests of all Class Members; (e)the prosecution of separate actions by or against individual Class Members would create a risk of inconsistent or varying adjudications with respect to individual Class Members; (f)the parties opposing the 2 Settlement Class have acted or refused to act on grounds generally applicable to the Settlement Class,thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Settlement Class as a whole; (g)questions of law or fact common to Class Members predominate over any questions affecting individual Class Members;and(h)a class action is superior to other available methods of fair and efficient adjudication of the controversy. 4. For purposes of the Settlement and this Order and Judgment of Dismissal only, pursuant to Rule 52.08,the Court hereby finally certifies this Action as a class action on behalf of all Municipalities in the State of Missouri(except Clayton,Jefferson City, Odessa and Springfield, Missouri)that,(a)on or before December 16, 2009, have imposed a Business License Tax; and (b)are within the definition of a Class A City or a Class B City;and (c)in which T-Mobile either derived gross receipts from providing Services or maintained facilities for the provision of Services;and(d)did not submit a timely and valid Request for Exclusion. A list of Municipalities submitting timely and valid Requests for Exclusion has been filed by the Administrator. 5. Pursuant to Rule 52.08, this Court hereby finally certifies Plaintiffs,City of Blue Springs, Missouri,City of Cape Girardeau, Missouri, City of Chesterfield, Missouri,City of Dexter, Missouri, City of Ellisville,Missouri,City of Ferguson, Missouri,City of Florissant, Missouri,City of Gladstone,Missouri, City of Independence,Missouri, City of Jennings, Missouri,City of Kirksville,Missouri, City of Kirkwood,Missouri, City of Manchester, Missouri, City of Maplewood,Missouri, City of]Maryland Heights, Missouri,City of Northwoods. Missouri,City of O=Fallon, Missouri, City of St. Joseph,Missouri,City of University City,Missouri, City of Vinita Park,Missouri,City of Warson Woods, Missouri,City of Wellston, Missouri and City of Winchester, Missouri,as the Class Representatives. 3 6. Notice of the pendency of this Action as a class action and of the proposed Settlement was given to all Municipalities who could be identified with reasonable effort. The Court finds that the Notice Plan as set forth in Section III of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constituted the best notice practicable under the circumstances to the Class Members of(i)the pendency of the Action,(ii)certification of the Settlement Class for settlement purposes only,(iii)the terns of the Settlement Agreement, and (iv)the Final Fairness Hearing. The form and method of notifying the Municipalities of the pendency of the Action as a class action and of the terms and conditions of the proposed Settlement met the requirements of Missouri Rule of Civil Procedure 52.08,the due process clause of the Constitution of the United States, the due process clause of the Constitution of Missouri and all other applicable laws, and constitutes due and sufficient notice to all Municipalities entitled to receive notice. 7. The Settlement,as set forth in the Settlement Agreement,is approved as fair, reasonable,adequate and in the best interests of the Class Members in all respects. The Parties are directed to consummate the Settlement Agreement according to its terms and provisions. The Settlement Agreement and every term and provision thereof shall be deemed incorporated herein as if explicitly set forth and shall have the full force of an Order of this Court. 8. Any Class Member who would have otherwise been eligible to receive payments as described in the Settlement Agreement,but who did not timely return a valid Claim Form to the Administrator in accordance with the instructions contained therein,shall not be entitled to (as applicable)a Settlement Payment, an Exhibit G Payment, a release of the Protested Tax or a disbursement of the Escrowed Tax, if any,under the Settlement Agreement. 4 9. Upon the Effective Date of the Settlement,the Class Representatives and all Class Members shall have, by operation of this Order and Judgment of Dismissal, fully, finally and forever released,relinquished,and discharged all T-Mobile Released Parties from all Released Claims, whether or not such Class Members executed and delivered a Claim Form. 10. Class Members, including the Class Representatives,and the successors, assigns, parents, subsidiaries, affiliates or agents of any of them,are hereby permanently barred and enjoined from instituting,commencing or prosecuting,either directly or in any other capacity, any Released Claim against any of the T-Mobile Released Parties. 11. Upon the Effective Date of the Settlement,the T-Mobile Released Parties shall have, by operation of this Order and Judgment of Dismissal, fully, finally,and forever released, relinquished, and discharged Plaintiffs, the Class Members and Class Counsel, from all claims arising out of, in any relating to,or in connection with the institution,prosecution,assertion, settlement,or resolution of the Action or the Released Claims. In any future dispute relating to T-Mobile's payment of any Business License Tac,the T-Mobile Released Parties shall not raise any claims or defenses relating to the enactment or validity of the Class Members' Business License Tax ordinances in the forni existing as of December 16,2009 or the applicability of those ordinances to Services. 12. Neither this Order and Judgment of Dismissal, the Settlement Agreement, nor any of its terms and provisions,nor any of the negotiations or proceedings connected with it,nor any of the documents or statements referred to therein shall be: (a) offered or received against the Defendants as evidence of or construed as or deemed to be evidence of any presumption,concession, or admission by any of the Defendants ,,with respect to the truth of any fact alleged by any of the Plaintiffs or the validity of any 5 claim that has been or could have been asserted in the Action or in any litigation,or the deficiency of any defense that has been or could have been asserted in the Action or in any litigation, or of any liability,negligence,fault,or wrongdoing of the Defendants; (b) offered or received against the Defendants as evidence of a presumption,concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any Defendant; (c) offered or received against the Defendants as evidence of a presumption,concession or admission with respect to any liability, negligence,fault or wrongdoing,or in any way referred to for any other reason as against any of the Defendants, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Settlement Agreement;provided,however, that the Defendants may refer to it to effectuate the liability protection granted them hereunder; (d) construed against the Defendants as an admission or concession that the consideration to be given hereunder represents the amount which could be or would have been received after trial; or (e) construed as or received in evidence as an admission, concession or presumption against the Class Representatives or any of the Class Members that any of their claims are without merit,or that any defenses asserted by the Defendants have any merit, or that damages recoverable under the Second Amended Petition would not have exceeded those agreed to in the Settlement Agreement. 13. The Court will enter a separate order awarding reasonable attorneys' fees and expenses in an amount to be set forth in that separate order. 6 14. The Second Amended Petition,which the Court finds was filed on a good faith basis in accordance with Rule 55.03 of the Missouri Rules of Civil Procedure based upon all publicly available information, is hereby dismissed with prejudice and without costs,except as provided in the Settlement Agreement,as against T-Mobile. Except as otherwise provided in this or a separate order,the Parties shall bear their own costs and attorneys' fees. 15. The Court finds that all Parties and their counsel have complied with each requirement of Rule 55.03 of the Missouri Rules of Civil Procedure as to all proceedings herein. 16. Without affecting the finality of the judgment hereby entered,the Court retains exclusive jurisdiction over the administration, interpretation,effectuation or enforcement of the Settlement,the Settlement Agreement,and this Order and Judgment of Dismissal, including any releases in connection therewith,and any other matters related or ancillary to the foregoing. 17. Without further order of the Court, the Parties may agree to reasonable extensions of time to carry out any of the provisions of the Settlement Agreement. 13. Pursuant to Rule 74.01(b), there is no just reason for delay and this Order and Judgment of Dismissal is subject to immediate appeal. IT IS SO ORDERED. Dated ,2010 Senior Judge Drumm, Circuit Court for St. Louis County 7 EXHIBIT F T-Mobile Parties' Pending Protested Tat Litigation I. Cases currently pending in the Circuit Court of Boone County,State of Missouri: Case Name Case No. Initial Filing Date 1. T-Mobile Central LLC v. Consolidated Case No. 09BA-CVOO114 July 25,2008 Lori Fleming, el al. (Includes Case Nos.:08BA-CV03869; 08BA-CV05412;09BA-CV00I 14; 09BA-CV02142;09BA-CV03749; 09BA-CV05252; 1 OBA-CV00056 and l OBA-CV01532) II. Cases currently pending in the Circuit Court of Cape Girardeau County, State of Missouri: Case Name Case No. Filing Date 1. T-Mobile Central LLC v. 08CG-CC00148 July 25,2008 Gayle Conrad, et al. 2. T-Mobile Central LLC v. 08CG-CC00206 October 16,2008 John Richbourg, et aL 3. T-Mobile Central LLC v. 09CG-CC00006 January 7,2009 John Richbourg, et al. 4. TMobile Central LLC v. 09CG-CC00081 April 10, 2009 John Richbourg, et al. 5. T-Mobile Central LLC v. 09CG-CCOOI63 July 14,2009 John Richbourg, el al. 6. T-Mobile Central LLC v. 09CG-CC00252 October 14,2009 John Richbourg, et al. - 7. T-Mobile Central LLC v. 1 OCG-CC00002 January 8,2010 John Richbourg, et al. 8. T-Mobile Central LLC v. IOCG-CV00075 April 7,2010 John Richbourg, et al. 1 III. Cases currently pending in the Circuit Court of Cass County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Mobile Central LLC i. Consolidated Case No.08CA-CV03061 July 25,2008 !Luke Wade, et nl. (Includes: 08CA-CV03061; 08CA- CV05412; 09CA-CV00069;09CA- CV01479; 09CA-CV02800; and 09CA- CV04225) 2. T-kfobile Central LLC v. l OCA-CV00064(pending consolidation January 8,2010 Mike Wade, et al. under Case No. 08CA-CV03061) 3. T Mobile Central LLC v. LOCA-CV01286 (pending consolidation April 7,2010 ?bike Trade, et al. under Case No: 08CA-CV03061) IV. ' Currently pending in the Circuit Court of Clay County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Afobile Central LLC v. Consolidated Case No. 08CY-CV07463 July 25, 2008 Steve iWarriott, et al. (Includes Case Nos.: 08CY-CV07463; 08CY-CV 10072; 09CY-CVOO113; 09CY-CV03809; 09CY-CV07411; 09CY-CV 10860; l OCY-CV001 Ol; and I OCY-CV03844) V. Currently pending in the Circuit Court of Henry County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Mobile Central LLC a Consolidated Case No. 08HE-CC00072 July 25,2008 Nelly Harrelson, et al. (Includes Case Nos.:08HE-CC00072; 08HE-CC00100; 09HE-CCOO003-. 09HE-CC00024; 09HE-CC00051; 09HE-CC00073; IOHE-CC0000]; l OHE-CC00031) 2 VI. Currently pending in the Circuit Court of Jackson County,State of Missouri Case Name Case No. Initial Filing Date 1. VoiceStream Kansas Cit)), Consolidated Case No. 02CV219678 July 24,2002 1170, v. An Keeney, et al. (Includes Case Nos.: 02CV219678 and 02CV229134) 2. T-Alobile Central LLC i' Consolidated Case No. 0816-CV21639 July 25,2008 Jill Shatto, et al. (Includes Case Nos.: 0816-CV21639; 0816-CV24641;0816-CV32627; 0916-CV01384; 0916-CV 12319; 0916-CV22375;0916-CV33436; 1016-CV02081; and 1016-CV10514) VII. Currently pending in the Circuit Court of Jefferson County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Alobile Central LLC v. Consolidated Case No.08JE-CCO0977 July 25,2008 Deborah Lewis, el al. (Includes Case Nos.: 08JE-CC00072; 08JE-CCO1317; 09JE-CC00058: 09JE-CCO0447; 09JE-CCO0809; 09JE-CC01138; IOJE-CC00020; and I OJE-CCO0323) VIII. Currently pending in the Circuit Court of Johnson County,State of Missouri Case Name Case No. Initial Tiling Date 1. T-Mobile Central LLC v. Consolidated Case No.: 08JO-CV01120 July 25,2008 Carl Larkerbrink, et al. (Includes Case Nos.:08JO-CVOI 120; 08.10-CV0I651; 09JO-CV00045; 09JO-CV00596; 09JO-CVOI I14;09JO- CVO1647; 1OJO-CV00022;and IOJO- CV00480) 3 IX. Currently pending in the Circuit Court of Lafayette County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Alobile Central LLC v. Consolidated Case No. 08LF-CV01031 July 25,2008 dennifer dellum, et al. (Includes Case Nos.: 08LF-CV01 03 1, *Only defendants City of 08LF-CV01460; 09LF-CV00035; Higginsville, City of 09LF-CV00480;09LF-CV00918; Lexington, and their 09LF-CV01302;10-LFCV00017; and respective City Collectors will lOLF-CV00431) be dismissed fr-orn the pending action. Defendants City of Odessa and its City Collector- will not be so dismissed X. Currently pending in the Circuit Court of Pettis County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Mobile Central LLC v. Consolidated Case No.: 08PT-CC00084 July 25,2008 Pamela Burlingame, et al. (Includes Case Nos.: 08PT-CC00084; 08PT-CC00108; 09PT-CC0005; 09PT-CC00045; 09PT-CCO0094; 09PT-CC00128; 10PT-CC00002; and l OPT-CC00056) XI. Currently pending in the Circuit Court of Ray County, State of Missouri Case Name Case No. Initial Filing Date 1. T-Mobile Cer7tr•a1 LLC v. Consolidated Case No.: 08RY-CV00836 July 25, 2008 Adaril}m O'Dell, et al. (Includes Case Nos.: 08RY-CV00836; 08RY-CV01124; 09RY-CV00021; 09RY-CV00422;09RY-CV00754; 09RY-CVO1137; 1ORY-CVO0015; and 1 ORY-CV00329) 4 XII. Currently pending in the Circuit Court of Saline County,State of Missouri Case Name Case No. Initial Filing Date 1. T-kfobile Central LLC v. Consolidated Case No.: 08SA-CV00131 July 25,2008 Debbie Trimble, et al. (Includes Case Nos.: OSSA-CVOO13; 08SA-CV001.90; 09SA-CV0006; 09SA-CV00077; 09SA-CV00132; 09SA-CV00187; IDSA-CV00017; and I OSA-CV00354) X111. Currently pending in the Circuit Court of St. Charles County,State of Missouri Case Name Case No. Initial Filing Date 1. T-Afobile Central LLC v. Consolidated Case No.: 0811-CV06831 July 25,2008. Vicki Boschert, et al, (Includes Case Nos.: 081 I-CV0683; 0811-CV09538; 0911-CV00207: 091 I-CV03646;09CV-CV06771; 0911-CV09707; 101 i-CV00155;and 1011-CV03322) XIV. Currently pending in the Circuit Court of St.Louis County,State of Missouri Case Name Case No. Initial Filing Date L T-Mobile Central LLC v. Consolidated Case No.; 08SL-CC03177 July 25,2008 Glenda Loehr, et al. (Includes Case Nos.: 08SL-CC03177; 08SL-CCO3237; 08SL-CC04331; 09SL-CC00087; 09SL-CCO1600; 09SL-CCO3034; 09SL-CCO4423; IOSL-CC00064;and IOSL-CCO1418) 5 YV. Currently pending in the Circuit Court of the City of St.Louis,State of Missouri Case Name Case No. Initial Filing Date 1. T-Mobile Central LLC v. Case No.034-01205 April 25,2003 Darlene Greene, el al. 6