<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A
(AMENDMENT NO. 1)
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(MARK ONE)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
---- THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
---- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM ------------ TO ------------
</TABLE>
COMMISSION FILE NO. 0-28196
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PAGEMART WIRELESS, INC.
(Exact name of registrant as specified in charter)
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<S> <C>
DELAWARE 75-2575229
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
3333 LEE PARKWAY, SUITE 100
DALLAS, TEXAS 75219
(Address of principal executive offices)
(Registrant's telephone number, including area code): (214) 765-4000
------------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
TITLE OF EACH CLASS
---------------
Class A Common Stock, par value $0.0001 per share
------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant, based upon the closing sale price of the Common Stock on January
31, 1998 as reported on the Nasdaq National Market System, was approximately
$76,430,161. Shares of Common Stock held by each executive officer and director
and by each person who owns 5% or more of the outstanding Common Stock have been
excluded in that such persons may be deemed to be affiliates. This determination
of affiliate status for this purpose is not necessarily a conclusive
determination for other purposes.
As of January 31, 1998, 34,150,907 shares of the Registrant's Class A
Common Stock were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the Registrant's Proxy Statement for its Annual Meeting of
Stockholders scheduled to be held on April 8, 1998 are incorporated by reference
into Part III (items 11, 12 and 13) hereof.
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EXPLANATORY NOTE
The registrant hereby amends Item 14 of its Annual Report on Form 10-K for
the fiscal year ended March 31, 1998, as set forth on the pages attached hereto.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this 10-K:
(1) Financial Statements. See Index to Consolidated Financial Statements
on Page F-1 hereof.
(2) Financial Statement Schedules. See Index to Consolidated Financial
Statements on Page F-1 hereof.
(3) Exhibits Required by Item 601 of Regulation S-K. See Exhibit Index
on Page E-1 hereof.
(b) Reports on Form 8-K
The following current report on Form 8-K was filed by PageMart Wireless,
Inc. during the quarter ended December 31, 1997:
Current Report on Form 8-K dated November 3, 1997 reporting under Item
5 "Other Events" the Company's proposal to refinance certain of its
outstanding indebtedness and modify its corporate structure.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: February , 1999 PAGEMART WIRELESS, INC.
(Registrant)
By: /s/ JOHN D. BELETIC
----------------------------------
John D. Beletic
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN D. BELETIC Chairman and Chief Executive February 26, 1999
- ----------------------------------------------------- Officer (Principal Executive
John D. Beletic Officer)
/s/ G. CLAY MYERS Vice President, Finance, February 26, 1999
- ----------------------------------------------------- Chief Financial Officer and
G. Clay Myers Treasurer (Principal
Financial and Accounting
Officer)
Director February , 1999
- -----------------------------------------------------
Michael C. Hoffman
/s/ GUY L. DE CHAZAL Director February 26, 1999
- -----------------------------------------------------
Guy L. De Chazal
/s/ ARTHUR PATTERSON Director February 26, 1999
- -----------------------------------------------------
Arthur Patterson
/s/ LEIGH J. ABRAMSON Director February 26, 1999
- -----------------------------------------------------
Leigh J. Abramson
/s/ ALEJANDRO PEREZ ELIZONDO Director February 26, 1999
- -----------------------------------------------------
Alejandro Perez Elizondo
/s/ PAMELA D.A. REEVE Director February 26, 1999
- -----------------------------------------------------
Pamela D.A. Reeve
/s/ STEVEN B. DODGE Director February 26, 1999
- -----------------------------------------------------
Steven B. Dodge
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION OF EXHIBIT
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3.1* Restated Certificate of Incorporation of PageMart Wireless,
Inc. (filed as an exhibit to the Registration Statement on
Form S-1 of the Company (Reg. No. 33-03012), and
incorporated herein by reference).
3.2* Certificate of Amendment to Restated Certificate of
Incorporation of PageMart Wireless, Inc. (filed as an
exhibit to the Registration Statement on Form S-1 of the
Company (Reg. No. 33-03012), and incorporated herein by
reference).
3.3* By-laws of PageMart Wireless, Inc.
4.1* Indenture, dated as of January 28, 1998, between PageMart
Wireless, Inc. and United States Trust Company of New York,
as Trustee, relating to the 11 1/4% Senior Subordinated
Discount Notes due 2008.
4.2* Indenture, dated as of January 17, 1995, between PageMart
Wireless, Inc. and United States Trust Company of New York,
as Trustee, relating to the 15% Senior Discount Notes due
2005. (filed as an exhibit to the Registration Statement on
Form S-1 of the Company (Reg. No. 33-91142), and
incorporated herein by reference).
4.3* First Supplemental Indenture, dated as of December 31, 1997,
among PageMart Wireless, Inc. and United States Trust
Company of New York, as Trustee (filed as an exhibit to the
Form 8-K of the Company dated January 28, 1998, and
incorporated herein by reference).
10.1* Warrant Agreement, dated as of October 19, 1993, between
PageMart, Inc. and United States Trust Company of New York,
as Warrant Agent, relating to the Warrants to purchase
Common Stock of the Company (filed as an exhibit to the Form
10-K of the Company for the fiscal year ended December 31,
1994, and incorporated herein by reference).
10.2* Telecommunications Service Agreement, dated May 29, 1992,
between PageMart, Inc. and Wiltel, Inc. (filed as an exhibit
to the Registration Statement on Form S-1 of the Company
(Reg. No. 33-91142), and incorporated herein by reference).
10.3 Amended and Restated Satellite Services Supplemental
Agreement, dated as of December 18, 1997, between PageMart
Wireless, Inc. and AvData Systems, Inc.(1)
10.4* Satellite Services and Space Segment Lease Agreement, dated
January 2, 1995, between PageMart, Inc. and SpaceCom
Systems, Inc. (filed as an exhibit to the Registration
Statement on Form S-1 of the Company (Reg. No. 33-91142),
and incorporated herein by reference).
10.5* Credit Agreement, dated as of May 11, 1995, by and among
PageMart Wireless, Inc. (formerly known as PageMart
Nationwide, Inc.), the Lenders named therein, BT Commercial
Corporation, as Agent, and Bankers Trust Company, as Issuing
Bank. (filed as an exhibit to the Registration Statement on
Form S-1 of the Company (Reg. No. 33-91142), and
incorporated herein by reference).
10.6* Fourth Amendment to Credit Agreement, dated as of January
15, 1998, among PageMart Wireless, Inc., the Lenders named
therein, BT Commercial Corporation, as Agent, and Bankers
Trust Company, as Issuing Bank.
10.7* Promissory Note and Security Agreement, dated May 21, 1997,
between PageMart, Inc. and Glenayre Electronics, Inc. (filed
as an exhibit to the Form 10-Q of the Company for the
quarter ended June 30, 1997, and incorporated herein by
reference).
</TABLE>
E-1
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EXHIBIT
NO. DESCRIPTION OF EXHIBIT
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10.8* Amended and Restated Agreement Among Certain Stockholders of
PageMart Nationwide, Inc. dated as of September 19, 1995
(filed as an exhibit to the Form 8-K of the Company dated
October 6, 1995, and incorporated herein by reference).
10.9* Amendment No. 1 to Amended and Restated Agreement Among
Certain Stockholders, dated as of October 1, 1997, among
PageMart Wireless, Inc. and certain of its stockholders.
10.10* Subscription Agreement dated as of July 7, 1995 among
PageMart Nationwide, Inc., PageMart Canada Holding
Corporation and TD Capital Group Ltd. (filed as an exhibit
to the Registration Statement on Form S-1 of the Company
(Reg. No. 33-03012), and incorporated herein by reference).
10.11* Agreement Among Stockholders among PageMart Nationwide,
Inc., PageMart International, Inc., TD Capital Group Ltd.,
PageMart Canada Limited. (filed as an exhibit to the
Registration Statement on Form S-1 of the Company (Reg. No.
33-03012), and incorporated herein by reference).
10.12* Equipment Purchase Agreement, dated as of January 26, 1996,
between Motorola, Inc. and PageMart Wireless, Inc. (filed as
an exhibit to the Form 10-K of the Company for the fiscal
year ended December 31, 1995, and incorporated herein by
reference)(1).
10.13* Technology Asset Agreement, dated as of December 1, 1995,
between Motorola, Inc. and PageMart Wireless, Inc. (filed as
an exhibit to the Form 10-K of the Company for the fiscal
year ended December 31, 1995, and incorporated herein by
reference)(1).
10.14* PageMart Wireless, Inc. Employee Stock Purchase Plan (filed
as an exhibit to the Registration Statement on Form S-1 of
the Company (Reg. No. 33-03012), and incorporated herein by
reference).
10.15* PageMart Wireless, Inc. Nonqualified Formula Stock Option
Plan for Non-Employee Directors. (filed as an exhibit to the
Registration Statement on Form S-1 of the Company (Reg. No.
33-03012), and incorporated herein by reference).
10.16* Office Lease Agreement, dated as of November 26, 1996,
between Crescent Real Estate Equities Limited and PageMart
Wireless, Inc. (filed as an exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
1996, and incorporated herein by reference).
10.17* PageMart Wireless, Inc. Fifth Amended and Restated 1991
Stock Option Plan (filed as an exhibit to the definitive
proxy statement of the Company dated April 18, 1997, and
incorporated herein by reference).
10.18* Severance and Reimbursement Agreement, dated September 12,
1997, between PageMart Wireless, Inc. and N. Ross Buckenham
(filed as an exhibit to the Form 10-Q of the Company for the
quarter ended September 30, 1997, and incorporated herein by
reference).
10.19* Resale Agreement, dated November 1, 1993, between PageMart,
Inc., licensor, and GTE Service Corporation, licensee.
(filed as an exhibit to the Registration Statement on Form
S-1 of the Company (Reg. No. 33-91142), and incorporated
herein by reference).
10.20* Strategic Alliance Agreement No. 1, dated September 15,
1994, between GTE Service Corporation and PageMart, Inc.
(filed as an exhibit to the Registration Statement on Form
S-1 of the Company (Reg. No. 33-91142), and incorporated
herein by reference).
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E-2
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EXHIBIT
NO. DESCRIPTION OF EXHIBIT
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10.21* Strategic Alliance Agreement No. 2, dated October 13, 1994,
between GTE Service Corporation and PageMart, Inc. (filed as
an exhibit to the Form 10-K of the Company for the fiscal
year ended December 31, 1994, and incorporated herein by
reference).
10.22 Resale Agreement, dated as of December 12, 1997, between
PageMart Wireless, Inc. and GTE Communications
Corporation.(1)
10.23* Third Amended and Restated 1991 Stock Issuance Plan (filed
as an exhibit to the Registration Statement on Form S-8
(Reg. No. 33-98116), and incorporated herein by reference).
10.24 Agreement between PageMart Incorporated and GTE
Communications Systems Corporation to assume and Amendment
No. 2 to Resale Agreement Number 999999-93-12 between
PageMart Incorporated and GTE Service Corporation, dated
October 2, 1997.(1)
10.25 Resale Agreement between GTE MobileNet Service Corp.,
licensee and PageMart, Inc., licensor dated July 1, 1996.
11.1* Computation of per share earnings (loss) for the three
months ended December 31, 1997.
11.2* Computation of per share earnings (loss) for the three
months ended December 31, 1996.
11.3* Computation of per share earnings (loss) for the year ended
December 31, 1997.
11.4* Computation of per share earnings (loss) for the year ended
December 31, 1996.
21.1* PageMart Wireless, Inc. Subsidiaries.
27.1* Financial Data Schedule for the year ended December 31,
1997.
</TABLE>
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(1) Confidential information has been deleted from this agreement. The omitted
material has been separately filed with the Commission pursuant to an
application for confidential treatment.
* Previously Filed.
E-3
<PAGE> 1
EXHIBIT 10.3
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
THIS AMENDED AND RESTATED SATELLITE SERVICES SUPPLEMENTAL
AGREEMENT (the "SSS Agreement") is made and entered into as of December 18, 1997
(the "Execution Date") by and between AvData Systems, Inc., a Delaware
corporation ("AvData"), whose principal place of business is located at 55
Marietta Street, NW, Atlanta, Georgia 30303 and PageMart Wireless Inc. (the
"Customer" or "PageMart"), a corporation existing under the laws of the state of
Delaware with offices at 3333 Lee Parkway, Suite 100, Dallas, Texas, 75219.
WHEREAS, AvData and PageMart, Inc. entered into a Satellite
Services Supplemental Agreement dated as of September 30, 1995 (the "Existing
SSS Agreement") concerning the purchase of certain satellite services and have
subsequently amended the Existing SSS Agreement by Amendment Number 1 (the
"Amendment").
WHEREAS, PageMart, Inc. has assigned its rights in the
Existing SSS Agreement to its sole stockholder, Customer, and AvData and
Customer now desire to restate and amend the Existing SSS Agreement as amended
to reflect the parties' actions to date, to integrate the pertinent provisions
of the Amendment and to specify certain additional and/or revised terms and
conditions as more fully stated below;
WHEREAS, Customer and AvData have entered into an Amended and
Restated Master Agreement dated December 18, 1997 ("Master Agreement"); and
WHEREAS, the parties acknowledge and agree that the SSS
Agreement is a separate, free standing document, independent of the Master
Agreement and all of the parties' rights and obligations hereunder shall
continue in full force and effect notwithstanding any termination of or default
by either party under the Master Agreement; and
WHEREAS, AvData leases certain Ku-Band satellite transponder
capacity on multiple satellites, and Customer desires to purchase from AvData
and AvData is willing to provide to Customer, a portion of such satellite
transponder capacity for use in the VNI Network.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration received and acknowledged, AvData and Customer
further agree that as of the Execution Date, the Existing SSS Agreement as
amended by the Amendment, is hereby amended and restated to read in its
entirety as follows:
During the Satellite Services Term, AvData shall provide
Customer's Satellite Capacity in accordance with, and Customer shall be bound
by, the terms and conditions set forth below:
A. "SATELLITE SERVICES TERM":
1. "Commencement Date": 12:00 a.m. (Eastern Time) on August 1, 1996.
2. "Termination Date": 11:59 p.m. (Eastern Time) on July 31, 2001 unless
earlier terminated pursuant to this SSS Agreement.
B. CUSTOMER'S SATELLITE CAPACITY: AvData shall provide satellite
transponder capacity for the VNI Network according to the terms hereof. From the
Commencement Date through the Termination Date Customer's Satellite Capacity
shall be provided through Ku-band transponder capacity leased by AvData on
Satellite(s) selected by AvData in its sole discretion subject to approval by
Customer, which shall not be
A & R Satellite AvData Systems, Inc.
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AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
unreasonably withheld; provided, however, that at least one of the Satellites
(i.e. GE-1) provides coverage for all fifty states of the USA.
C. PRICE: Customer shall pay to AvData a monthly satellite capacity payment
for Customer's Satellite Capacity, in accordance with Section J below and
Schedule 1 attached hereto, except that payment for the first month of any
increased usage shall be due and payable on the date the Customer uses any
increase in satellite capacity, with a corresponding increase in subsequent
monthly satellite capacity payments.
D. DEPOSIT: The parties acknowledge that Customer paid AvData a non-refundable
satellite services deposit on the date of execution of the Existing SSS
Agreement, which has been retained by AvData in consideration for the
modifications contained therein. PageMart acknowledges that it is not entitled
to a set-off against any financial obligations with respect to such payment.
E. CERTAIN DEFINITIONS
1. "Affiliates" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
(i.e., the power to direct affairs by reason of ownership of voting stock,
by contract or otherwise) with such Person and any member, director,
officer or employee of such Person.
2. "FCC" shall mean the Federal Communications Commission or any successor
organization.
3. "Satellite(s)" shall mean GE-1 and Galaxy IV and such other geo-stationary
communications satellite or satellites through which AvData will provide
Customer's Satellite Capacity.
4. "Laws" shall mean all international, federal, state, local and other laws,
rules and other regulations, including without limitation, those issued by
the FCC.
5. "Person" shall mean any person or entity, whether an individual, trustee,
corporation, general partnership, limited partnership, trust,
unincorporated organization, business association, firm, joint venture,
governmental agency or authority, or otherwise.
6. "Transponder(s)" shall mean a component of the Satellite(s) which, for a
particular frequency band, receives, amplifies, translates frequency and
retransmits radio signals. Each Transponder contains one traveling wave
tube amplifier (a "TWTA"). Transponder shall also mean, for purposes of
this definition, any replacement or alternate components thereof.
7. "Satellite Capacity Failure" shall mean the failure of AvData to provide
Customer's aggregate Satellite Capacity on a Satellite(s) (due to a
Satellite failure). Determination that a Satellite Capacity Failure has
occurred shall be made by AvData in its sole discretion.
8. "Usage" or "Use" shall refer to radio transmission to, or utilization of,
the Satellite(s) for the VNI Network.
9. "Satellite Operators" shall mean the owner(s) of the Satellite(s)
specifically authorized by the FCC to operate the Satellite(s) and through
whom AvData makes available the satellite capacity required for the VNI
Network.
10. "Primary Hub" shall mean the Equipment at AvData's primary hub location in
Atlanta, Georgia which will be used to access Customer's Satellite
Capacity to run the VNI Network.
11. "Alternate Hub" shall mean the equipment PageMart sets up at a site to be
determined which will be used to access Customer's Satellite Capacity to
run the VNI Network for load sharing with, or failure of the Primary Hub.
12. "Customer's Satellite Capacity" shall mean the satellite capacity to be
provided hereunder to Customer (expressed as SCUs or High Power SCUs)
during the Satellite Services Term, as more
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AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
particularly described in Paragraph J.2. hereof. In addition, if PageMart
requests additional satellite capacity as described in Schedule 1
attached hereto, subject to availability of such satellite capacity, such
additional satellite capacity shall be included upon commencement of
service for such satellite capacity.
13. "Equipment" shall mean the Very Small Aperture satellite Terminals (VSATs)
and associated hub hardware and remote site hardware including embedded
software provided by AvData under the Master Agreement.
14. "Satellite Capacity Unit" or "SCU" - One SCU equals 800 kHz of bandwidth,
which is normally configured as one (1) 128 Kbps outbound channel and two
(2) 64 Kbps inbound channels. Using standard power levels and BPSK
modulation, the percentage of available bandwidth in the transponder that
is utilized by a SCU is equal to the percentage of the power available in
the transponder utilized by that SCU.
15. "High Power SCU" - One High Power SCU consumes twice the satellite
capacity of one standard power SCU. Using high power levels and BPSK
modulation, the percentage of available power in the transponder that is
utilized by a High Power SCU is equal to two (2) times the percentage of
available bandwidth in the transponder that is utilized by a SCU. A High
Power SCU has a power density of not less than 9 dBW/4KHz and requires
authorization from the Federal Communications Commission (FCC).
16. "VNI" or "VNI Network" shall mean the VSAT network infrastructure
consisting of the Equipment, and software provided by AvData under the
Master Agreement.
F. CERTAIN UNDERSTANDINGS
1. Ownership of Transponders. Customer understands and agrees that the
Satellite Operators are the FCC-authorized operator of the Satellites . Neither
this SSS Agreement nor Customer's Satellite Capacity shall, or shall be deemed
to, convey title or any other ownership interest to Customer in or to any
Satellite, any Transponder or any part thereof. Customer acknowledges and
agrees (i) that nothing contained in this SSS Agreement shall prevent any sale,
mortgage, or encumbrance of any Satellite or any Transponder thereof by the
owner, (ii) that Customer's Satellite Capacity is provided on a right to use
basis (with Equipment and services provided by AvData under the Master
Agreement) and is not being sold to Customer, (iii) that neither any
Transponder nor any Satellite, nor any right to use thereof nor any interest of
any type therein, shall be subject to any claim, prior, subsequent or
otherwise, of Customer or its creditors as a result of this SSS Agreement, and
(iv) that, as to any Transponder, the rights of Customer under this SSS
Agreement will be subject and subordinate to the rights of any purchaser
purchasing such Transponder and leasing it back to the Satellite Operator
pursuant to a sale and leaseback transaction. Notwithstanding the foregoing,
AvData shall use reasonable efforts to provide that the foregoing restrictions
shall not impact or interfere with Customer's use of Customer's Satellite
Capacity as provided for herein.
2. Control of Satellite. Customer understands and agrees that the
Satellite Operator(s) shall control and provide for the operation of the
Satellite(s).
3. Communication with Satellite. All communications with the
Satellite(s) will be provided through Equipment controlled by AvData at either
the Primary Hub or Alternate Hub; provided, however, upon the prior written
request of Customer, AvData shall use its reasonable efforts to obtain the
consent of each Satellite Operator to permit Customer to exercise control of
the Equipment at the Alternate Hub, and upon obtaining such consent(s),
Customer shall have the right to make communications with the Satellite(s)
through Equipment controlled by Customer or its nominee at the Alternate Hub.
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AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
G. CONTINUITY OF SERVICE
1. Preemption/Interruption of Service. Customer recognizes and agrees
with respect to each Satellite that for "Technical or Safety Reason(s)", which
shall include, but shall not be limited to, (1) the protection of the overall
health or performance of the Satellite or its Transponders; (2) the prevention
of interference or cross-talk; (3) the protection of public safety; or (4)
compliance with an order from the FCC or other governmental authorities - and
the existence of which the Satellite Operator shall determine in its sole
discretion - the Satellite Operator may take the following "Action(s)": (i)
preempt or interfere with Customer's Use of any Transponder or other component
of the Satellite, (ii) reassign TWTAs to different Transponders on the
Satellite, or (iii) reassign the frequency assignment of Customer's Satellite
Capacity. Customer acknowledges and agrees that an Action by Satellite Operator
may result in the preemption or interruption of the Use of Customer's Satellite
Capacity. AvData shall notify Customer as soon as reasonably practical after
receipt by AvData of oral or written notice from the Satellite Operator
concerning an Action and shall use reasonable efforts to cause the Satellite
Operator to schedule and conduct such Action so as to minimize the Satellite
Operator disruption of Customer's Use of Customer's Satellite Capacity.
Customer acknowledges and agrees that if such preemption or interruption
occurs, then Customer shall cooperate with and assist AvData and the Satellite
Operator during such periods and Customer's sole remedies shall be the
termination of this SSS Agreement or reduction in Customer's Satellite Capacity
pursuant to Paragraph K herein.
2. Provision of Continuing Service. In the event of a Satellite
Capacity Failure, AvData shall use its best efforts to cause the Satellite
Operator to provide Customer's Satellite Capacity using spare Transponder
capacity on the Satellite, if available, or if such spare capacity is
unavailable, then by using an alternate Transponder on the Satellite of the
same polarity, if available. The availability of such spare or alternate
Transponder on the Satellite, on a permanent or temporary basis, shall be
determined by the Satellite Operator in its sole discretion. The foregoing
notwithstanding, Customer's sole remedies for any preemption or interruption of
Use shall be the termination of this SSS Agreement or reduction in Customer's
Satellite Capacity pursuant to Paragraph K herein.
H. CUSTOMER'S OBLIGATIONS
1. Compliance With SSS Agreement and Laws. During the Satellite
Services Term, Customer shall comply with the terms of this SSS Agreement and
shall be responsible for complying with, and shall comply with all Laws
applicable to it regarding the operation and Use of the Satellites and the
Transponders, or Use of Customer's Satellite Capacity. Customer shall be
permitted to use Customer's Satellite Capacity for any business unit,
subsidiary, Strategic Alliance Partner or customer of PageMart subject to the
approval of AvData, which shall not be unreasonably withheld, provided,
however, operation of the Equipment provided under the Master Agreement or any
other equipment used to access Customer's Satellite Capacity, including
PageMart's Alternate Hub, must be in strict accordance with guidelines and
instructions provided by the Satellite Operator directly or through AvData.
I. REMEDIES
1. LIMITATION OF LIABILITY
a. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR USE,
ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY AVDATA. CUSTOMER EXPRESSLY AGREES THAT
AVDATA'S SOLE OBLIGATIONS AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY CAUSE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING FROM NEGLIGENCE)
ARISING OUT OF OR RELATING TO THIS SSS AGREEMENT AND/OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY ARE LIMITED TO TERMINATION OF THIS SSS
AGREEMENT FOR THE REASONS DESCRIBED IN PARAGRAPH G ABOVE, AND ALL OTHER
REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED.
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AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
b. IN NO EVENT SHALL AVDATA BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, OCCASIONED BY ANY DEFECT IN
CUSTOMER'S SATELLITE CAPACITY, FAILURE OF THE CUSTOMER'S SATELLITE CAPACITY TO
PERFORM OR ANY OTHER CAUSE WHATSOEVER. AVDATA MAKES NO WARRANTY, EXPRESS OR
IMPLIED, TO ANY OTHER PERSON CONCERNING CUSTOMER'S SATELLITE CAPACITY AND
CUSTOMER SHALL INDEMNIFY AVDATA FROM ANY CLAIMS MADE UNDER ANY WARRANTY OR
REPRESENTATION BY CUSTOMER TO ANY THIRD PARTY.
2. Indemnification.
Customer shall indemnify and save AvData and the Satellite Operators
harmless from all liability to Customer disclaimed by AvData, as specified
above, to the extent such liability arises in connection with the provision by
AvData or the Satellite Operators of facilities and/or Customer's Satellite
Capacity or use of Customer's Satellite Capacity pursuant to this SSS Agreement
provided, however, Customer shall not be obligated to indemnify AvData from
such liability to the extent such liability arises from the willful misconduct
or gross negligence of AvData.
J. PAYMENTS TO AVDATA
1. Payment.
a. Unless otherwise provided, any sum due AvData for the provision of
Customer's Satellite Capacity shall be invoiced and payable in advance on the
first day of each month.
b. If any payment of any sum due from Customer is not received by
AvData within thirty (30) days after such payment is due, then such overdue
amount shall be subject to a delinquency charge at the rate of interest equal
to one and one-half percent (1 1/2%) per month, from the date such overdue
amount was actually due until the date it is actually received by AvData.
c. Customer's obligations to make the monthly satellite capacity
payments provided by Paragraph C above and J(2) below shall be absolute and
unconditional and shall not be affected by any circumstances, including,
without limitation, any setoff, counterclaim, recoupment, defense or other
right which Customer may have against AvData or anyone else for any reason
whatsoever.
d. The charges specified herein do not include any amounts for sales,
use, property, privilege, license, excise or similar taxes, fees or assessments
which may be levied by any governmental agency on this SSS Agreement, the
services provided or the payments made hereunder. Any such taxes or charges
shall be paid directly by Customer to the taxing authority, if legally
permitted. Otherwise, if required to be paid by AvData, the amount shall be
reimbursed to AvData by the Customer. Upon request, the Customer shall provide
AvData with tax exemption certificates, if applicable, or evidence of tax
payments, if made by Customer.
2. Required Satellite Capacity.
a. Commencing August 1, 1996, PageMart shall pay * per
month per Satellite Capacity Unit ("SCU") for satellite capacity, and shall
increase the number of SCUs at the rate of * per month until * SCUs are paid
for per month; provided, however, that commencing January 1, 1997, PageMart's
required number of SCUs shall be reduced by * SCUs per month to * SCUs for the
month of January, 1997, and the number of SCUs shall thereafter increase at the
rate of * per month until a * required satellite capacity of * SCUs per month
is reached, which shall be sustained for the balance of this SSS Agreement.
Nothing contained in
A & R Satellite AvData Systems, Inc.
Services Supplemental Proprietary
5 Rev. 12/10/97
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 6
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
this paragraph is intended to limit PageMart's ability to increase its number
of SCUs at a rate faster than * per month. PageMart shall have the right to
designate by written notice by PageMart that a portion of Customer's Satellite
Capacity, not to exceed ten (10) SCUs (i.e. five (5) High Power SCUs), shall be
provided as High Power SCUs. The provision of Customer's Satellite Capacity as
High Power SCUs shall be subject to availability of High Power SCUs on the
Satellite(s) and regulatory approval by the FCC. Upon receipt of such written
notice, AvData shall pursue such regulatory approval on a "best efforts" basis,
at PageMart's sole cost and expense. One (1) High Power SCU shall count as two
(2) SCUs for the purpose of the above calculations.
b. AvData shall use commercially reasonable efforts to resell any SCUs
(in increments of 1/4 SCUs, or 200 kHz) that PageMart specifies in writing to
AvData to resell; provided, however, that PageMart in such written notice
irrevocably releases the SCUs for the duration of this SSS Agreement. PageMart
shall be required to continue to pay for the SCUs until such time, if any, as
AvData is able to resell the SCUs, as set forth below in Paragraph J(2)(c).
c. AvData shall reduce PageMart's minimum monthly payments in the
amount of $ * for each 1/4 SCU that AvData resells; provided, however, that
AvData resells such SCU at a rate equal or greater than $ * per 1/4 SCU. AvData
shall be permitted to receive payments for such resold SCUs directly from the
purchaser.
d. AvData further agrees not to purchase additional satellite capacity
for its own use from the time that PageMart gives AvData written notice of
released satellite capacity pursuant to Paragraph J(2)(b) above if AvData
determines, in its reasonable discretion, that AvData's satellite capacity
needs can be reasonably satisfied from PageMart's released satellite capacity,
and in such event AvData shall reduce PageMart's minimum monthly payments for
satellite capacity by $ * for each 1/4 SCU that AvData uses.
K. TERMINATION
1. Events of Termination. This Agreement shall terminate automatically
upon the Termination Date, unless terminated earlier pursuant to one of the
following paragraphs:
a. Termination for Satellite Capacity Failure. If a Satellite Capacity
Failure continues uninterrupted for more than ten (10) consecutive days, or
such other period is mutually agreed upon in writing by AvData and Customer,
then this Agreement may be immediately terminated by either party by written
notice to the other delivered on or before the thirtieth day after the calendar
day on which the Satellite Capacity Failure began; provided, however, that if
such Satellite Capacity Failure affects only one Satellite and a portion of
Customer's Satellite Capacity remains available from other Satellite(s), then
the right of termination shall apply only to Customer's Satellite Capacity
received hereunder from such failed Satellite and this SSS Agreement shall
continue in force with respect to the remaining portion of Customer's Satellite
Capacity. If so terminated, AvData shall refund to Customer the amount of any
prepaid monthly charges for the terminated capacity prorated from the date of
the Satellite Capacity Failure, and AvData shall have no other or further
liability to Customer.
b. Cancellation for Non-Payment and Violations of Law. Notwithstanding
anything to the contrary and in addition to all other remedies AvData may have,
AvData may immediately cancel this Agreement and accelerate all remaining
payments due through the Satellite Services Term if Customer materially
breaches any provision of this Agreement, including for example (but without
limitation), (1) if Customer fails to pay when due any amounts due pursuant to
this Agreement within ten (10) days after AvData has delivered notice to
Customer of such non-payment, or (2) if Customer violates the provisions of
Paragraph H.1. ("Compliance with Laws"). Upon termination, pursuant to this
Paragraph K.1.b, AvData shall be entitled to transfer Customer's Satellite
Capacity immediately to whomever AvData sees fit, Customer shall not be
entitled to any equitable relief as a result thereof, and Customer's exclusive
remedy shall be limited to recovery of any payments made by it to AvData for
the period of time as to which it has
A & R Satellite AvData Systems, Inc.
Services Supplemental Proprietary
6
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 7
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
been canceled, without interest, less any claim AvData has against Customer by
reason of such Customer's default.
c. Termination by Customer. In event that AvData fails to provide
Customer's Satellite Capacity to Customer as a result of the termination by a
Satellite Operator of the lease to AvData of Ku-Band satellite transponder
capacity due to a default by AvData, Customer, provided that Customer is not in
default hereunder, shall have the right to reduce Customer's Satellite Capacity
under this Agreement to the extent of the Customer's Satellite Capacity
received hereunder from such Satellite Operator if AvData fails to cure such
failure within thirty (30) days after receiving written notice of such failure
from Customer. If Customer's Satellite Capacity is so reduced, AvData shall (i)
refund to Customer the amount of any prepaid monthly charges for the terminated
Customer's Satellite Capacity prorated from the date AvData failed to provide
such Customer's Satellite Capacity and (ii) provide reasonable cooperation, at
Customer's request and expense, with any efforts by Customer to contract
directly with the Satellite Operator for such terminated Customer's Satellite
Capacity, and AvData shall have no other or further liability to Customer with
respect to such terminated Customer's Satellite Capacity.
2. Continuation after Termination of Master Agreement. The parties
acknowledge and agree that this SSS Agreement is a separate, free standing
contract and is independent of the Master Agreement. This SSS Agreement, and
the parties rights and obligations hereunder, shall continue in full force and
effect notwithstanding any termination of or default by either party under the
Master Agreement.
L. MISCELLANEOUS
1. Headings. The Paragraph headings used in this SSS Agreement, except
where terms are specifically defined, are for reference and convenience only
and shall not enter into the interpretation hereof.
2. Waiver. No delay or omission by either party to exercise any right
or power shall impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the parties of any of the covenants, conditions
or agreements to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition or agreement herein contained.
3. Severability. If, but only to the extent that, any provision of
this SSS Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this SSS
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its intent. If that
is not possible, another provision that is legal and enforceable and achieves
substantially the same objective shall be substituted. If the remainder of this
SSS Agreement is not affected by such declaration or finding and is capable of
substantial performance then the remainder shall be enforced to the extent
permitted by law.
4. Relationship of Parties. AvData is performing pursuant to this SSS
Agreement only as an independent contractor and nothing set forth in this SSS
Agreement shall be construed to create the relationship of principal and agent
between AvData and Customer. Neither AvData nor Customer shall act or attempt
to act or represent itself, directly or by implication, as an agent of the
other party or its Affiliates or in any manner assume or create, or attempt to
assume or create, any obligation on behalf of, or in the name of, the other
party or its Affiliates.
5. Approvals and Authorizations. The obligations of the parties hereto
shall be subject to obtaining and maintaining all necessary regulatory and
other governmental approvals and authorizations. The parties agree to use their
respective and, where applicable, collective best reasonable efforts to obtain
promptly and maintain any such approvals.
A & R Satellite AvData Systems, Inc.
Services Supplemental Proprietary
7
<PAGE> 8
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
6. Notices. In addition to such other requirements as may be set forth
herein, any notices hereunder by one party to the other party shall be given in
writing by personal delivery (or by recognized overnight delivery service) or
posted by certified mail return receipt requested, to the parties at the
following addresses:
IF AVDATA, SEND TO: IF CUSTOMER, SEND TO:
AvData Systems, Inc. PageMart Wireless, Inc.
55 Marietta Street 3333 Lee Parkway, Suite 100
Atlanta, GA 30303 Dallas, TX 75219
Attn: Judith H. Drobinski Attn: James E. Freytag
V.P. - Finance & Admin. Director of Network
Implementation
Notices will be deemed to have been given hereunder when delivered (whether or
not accepted by the addressee).
7. Confidentiality. Each party hereby agrees that all non-public,
confidential or proprietary information communicated to it by the other party
or its customers, whether before or after the Execution Date, shall be and was
received in strict confidence, shall be used only for purposes of this SSS
Agreement, and, for a period of five (5) years following the termination of
this SSS Agreement, shall not be disclosed by such party, its agents or
employees without the prior written consent of the other party, except as may
be necessary by reason of legal, accounting or regulatory requirements beyond
the reasonable control of the disclosing party. The obligations set forth in
this Section shall survive termination of this SSS Agreement.
8. Force Majeure. The term "Force Majeure" shall include, but not be
limited to, fires or other casualties or accidents, acts of God, severe weather
conditions, sun outages, strikes or labor disputes, war or other violence, any
law, order, proclamation, regulation, ordinance, demand or requirement of any
governmental agency or any other act or condition whatsoever beyond the
reasonable control of the affected party. A party whose performance of its
obligations hereunder is prevented, restricted or interfered with by reason of
a Force Majeure condition shall be excused from such performance to the extent
of such Force Majeure condition so long as such party immediately continues
performance whenever and to the extent such causes are removed. Nothing in this
Section shall relieve Customer of its obligations to make payments to AvData in
accordance with Paragraphs C and J of this Satellite Services Supplemental
Agreement, except to the extent that AvData is relieved of its obligations to
make payments to the Satellite Operator by such Force Majeure condition.
9. Applicable Law and Entire Agreement. THIS SSS AGREEMENT SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
GEORGIA. This SSS Agreement constitutes the entire agreement between the
parties, supersedes all previous understandings, commitments or representations
and is intended as the complete and exclusive statement of the terms of the
agreement between the parties concerning the subject matter hereof. This SSS
Agreement may not be amended or modified in any way, and none of its provisions
may be waived, except by a writing signed by each party hereto.
10. Attorney's Fees. In the event of any dispute or controversy
arising hereunder, any court having jurisdiction in any such dispute or
controversy shall determine which of the parties is the prevailing party and
shall award to the prevailing party the reasonable fees and expenses of
counsel, experts and other court costs incurred in connection with such dispute
or controversy.
11. No right of Transfer. Customer shall not, and shall not have the
right to, grant, sell, assign, encumber, permit the utilization of, license,
lease, or otherwise convey, directly or indirectly, in whole or in part
(individually, a "Transfer:"), Customer's Satellite Capacity, or any of its
rights under this SSS Agreement, to any other entity or person. Notwithstanding
the foregoing, Customer may assign its
A & R Satellite AvData Systems, Inc.
Services Supplemental Proprietary
8
<PAGE> 9
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
Satellite Capacity, and its rights under this SSS Agreement, without AvData's
written consent, to any corporation, partnership or other entity which is
controlled by Customer and in which Customer has not less than fifty-one percent
(51%) of the ownership interest, provided that no such assignment shall relieve
Customer of any of its obligations hereunder.
12. Successors and Assigns. Subject to Paragraph L.11 above, this SSS
Agreement shall be binding on and shall inure to the benefit of any successors
and assigns of the parties, provided that no assignment of this SSS Agreement
shall relieve either party hereto of its obligations to the other party. Any
purported assignment by either party not in compliance with the provisions of
this SSS Agreement shall be null and void and of no force and effect.
- -------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized officer, have
caused this Agreement to be executed as of the date written above.
<TABLE>
<CAPTION>
PAGEMART, INC. AVDATA SYSTEMS, INC.
<S> <C> <C>
By: By: Harold E. Cowan
------------------------------------ ------------------------------------
Title: Title: Vice President Account Management
------------------------------------ ------------------------------------
Date: Date: December 18, 1997
------------------------------------ ------------------------------------
Signed: /s/ ILLEGIBLE Signed: /s/ HAROLD E COWAN
------------------------------------ ------------------------------------
</TABLE>
A & R Satellite AvData Systems, Inc.
Services Supplemental Proprietary
9
<PAGE> 10
AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
SCHEDULE 1
MONTHLY RECURRING CHARGES
<TABLE>
<CAPTION>
Unit Extended
Price Qty.* Price
----- ----- --------
<S> <C> <C> <C>
Satellite Capacity Units* * * $ *
</TABLE>
CONDITIONS TO PRICING
Satellite Capacity Unit charges will begin with * on August 1, 1996 and increase
by * until January 1, 1997, when PageMart's required number of SCUs shall be *
SCUs * for the month of January, 1997, and the number of SCUs shall thereafter *
until a * required satellite capacity * SCUs * is reached, which shall be
sustained for the balance of the SSS Agreement; provided, however, that
PageMart's SCU required capacity shall be immediately * in the event AvData *
any additional capacity as set forth in Paragraph (J)(2) of the SSS Agreement.
PageMart may * the number of SCUs and payments at a rate * SCU *. Additionally,
one (1) High Power SCU shall count as two (2) SCUs.
SATELLITES
As of the Execution Date, AvData has commitments with Satellite Operators to
provide up to * of the SCUs on Galaxy IV and up to * of the SCUs on GE-1.
* ADDITIONAL SATELLITE CAPACITY
AvData will provide additional satellite capacity when requested by PageMart
subject to satellite capacity availability and price at the time PageMart
requests this service.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT.
AvData Systems, Inc.
PROPRIETARY
10
A & R Satellite Services Supplement Rev. 12/10/97
<PAGE> 1
EXHIBIT 10.22
RESALE AGREEMENT
BETWEEN
GTE COMMUNICATIONS CORPORATION
AND
PAGEMART WIRELESS, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
1. TERM 1
2. DEFINITIONS 1
3. LICENSE 2
4. INDEPENDENT PARTIES 2
5. SCOPE 3
6. LICENSOR RESPONSIBILITIES 3
7. RESELLER RESPONSIBILITIES 5
8. PERFORMANCE STANDARDS 5
9. PERFORMANCE MEASUREMENTS 6
10. SERVICE COMMITMENT 6
11. PUBLIC REGULATION 7
12. PRICING 8
13. BILLING AND COLLECTIONS 9
14. TERMS OF PAYMENT 9
15. WARRANTY 10
16 RIGHT TO AUDIT 10
17. PRECEDENCE OF DOCUMENTS 10
18. USE OF CONFIDENTIAL INFORMATION 11
19. PUBLICITY 12
20. COMPLIANCE WITH LAWS 12
21. FORCE MAJEURE 12
22. LIABILITY 13
23. ASSIGNMENT 15
24. TAXES 15
25. RECORDS 15
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
26. RIGHT OF ACCESS 16
27. TERMINATION 16
28. DISPUTE RESOLUTION 17
29. NOTICES 18
30. NONWAIVER 19
31. SEVERABILITY 19
32. SECTION HEADINGS 19
33. SURVIVAL OF OBLIGATIONS 20
34. CHOICE OF LAW 20
35. ENTIRE AGREEMENT 20
SIGNATURES 20
EXHIBIT A. - PRICING 21
EXHIBIT B. - PERFORMANCE REQUIREMENTS 22
EXHIBIT C. - REPAIR REPORTING &
ESCALATION PROCEDURES 23
EXHIBIT D. - NETWORK REPORTS CRITERIA 24
</TABLE>
<PAGE> 4
RESALE AGREEMENT
This Agreement is made as of December 12, 1997, by and between PageMart
Wireless, Inc., a Delaware corporation, with offices for the purpose of this
Agreement located at 3333 Lee Parkway, Suite 100, Dallas, Texas 75219
(hereinafter referred to as "LICENSOR") and GTE Communications Corporation, a
Delaware corporation, with offices located at 5221 North O'Connor Boulevard,
14th Floor, Irving, Texas 75039 (hereinafter referred to as "RESELLER").
WHEREAS, LICENSOR provides paging, voice messaging, and related messaging
services (hereinafter referred to as "SERVICES"); and
WHEREAS, RESELLER desires to contract with LICENSOR to resell such SERVICES
and, in connection therewith, to receive blocks of Personal Identification
Numbers (hereinafter referred to as "PINs") and Direct Inward Dialing numbers
(hereinafter referred to as "DIDs") that provide individual access to
LICENSOR's system and SERVICES, for resale to members of the general public;
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. TERM
This Agreement shall be effective on the date written above and shall
continue in effect thereafter for a period of thirty-six (36) months
(hereinafter the "Term") unless terminated or modified by either party in
accordance with the provisions of this Agreement. This Agreement shall
be automatically terminated unless renewed by RESELLER by written notice
to LICENSOR not less than thirty (30) days prior to the end of the Term.
At the end of each twelve (12) month period of the Term either party
shall have the option to request review of the Agreement terms and
adjustment of such terms as are mutually agreed upon by the parties.
Unless mutually agreed otherwise, the Agreement shall remain in force as
written until the end of the Term.
2. DEFINITIONS
(a) CAP Code - The numeric code that identifies and is unique to each
pager placed in service on LICENSOR's Paging System.
(b) DID - A local telephone number assigned by LICENSOR to identify a
specific pager on the LICENSOR's network.
(c) Equipment - Pagers and related message receiving devices.
(d) Paging Terminal - A paging switch that processes paging calls.
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<PAGE> 5
(e) Paging System - A telecommunications and radio frequency(ies)
network that provides paging and related messaging services
throughout a specific geographic area.
(f) PIN - Personal Identification Number. A specific number assigned
by LICENSOR to identify a pager on the LICENSOR's network. By
entering the PIN into LICENSOR's computer via a touch-tone
telephone, the respective pager is activated.
(g) SERVICES - paging, voice messaging, and related messaging
services currently offered for resale by LICENSOR, including but
not limited to such additional SERVICES as LICENSOR makes
available in the retail or reseller market during the Term of
this Agreement. Notwithstanding the foregoing, at such time
LICENSOR makes available two-way messaging for resale, the
parties shall mutually agree to the terms and conditions under
which such services will be provided to RESELLER.
(h) Subscriber - A person or entity that is an end user of the
LICENSOR's Paging System.
(i) Telephone Interconnect Charges - Those charges directly
associated with acquiring Direct Inward Dial (DID) paging
telephone numbers and transporting calls from the local exchange
carrier.
3. LICENSE
(a) LICENSOR grants RESELLER a non-exclusive license to resell
LICENSOR's SERVICES subject to the terms of the Agreement and the
rules, regulations and decisions of the Federal Communications
Commission (hereinafter referred to as "the FCC").
(b) RESELLER is authorized to license its own sub-agents and
affiliates for the marketing, promotion and resale of LICENSOR's
SERVICES, provided that RESELLER shall be responsible for the
observance by its sub-agents, affiliates, and sub-licensees of
the terms and conditions of this Agreement. RESELLER shall
provide notice to LICENSOR of all sub-agents and affiliates
authorized for promotion and resale on its behalf.
4. INDEPENDENT PARTIES
Each party is an independent contractor. Except as provided in this
Agreement, neither party shall have the right, power, or authority to
act or to create any obligation, express or implied, on behalf of the
other party. Except as permitted pursuant to paragraph 3(b) above, all
sales by RESELLER shall be in its own name and for its own account.
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<PAGE> 6
5. SCOPE
(a) This Agreement is non-exclusive and RESELLER is under no
obligation to LICENSOR to resell any certain amount of SERVICES
or refrain from selling or reselling competing SERVICES.
(b) LICENSOR hereby agrees to provide SERVICES in an efficient,
economic, and timely fashion in accordance with the generally
accepted commercial and business practices in the industry.
(c) This Agreement is solely between LICENSOR and RESELLER and is not
intended to create rights in or obligations to any third party.
6. LICENSOR RESPONSIBILITIES
For the Term:
(a) LICENSOR shall establish a dedicated account manager for
communications with RESELLER and shall actively manage the
relationship between the parties. The account manager will be
the focal point for all issues and questions that may arise
during this relationship and shall be available by pager at all
times. Escalation procedures have been defined by both the
LICENSOR and RESELLER as outlined in Exhibit C.
(b) LICENSOR shall provide RESELLER's Subscribers with access to its
Paging System to initiate and receive paging messages and shall
use commercially reasonable good faith efforts to provide
continuous network service in the geographical locations where
LICENSOR is legally authorized and has the facilities to provide
SERVICES.
(c) The SERVICES provided by LICENSOR for resale by RESELLER shall
include but not be limited to those listed on Exhibit A hereto as
amended by the parties from time to time.
(d) LICENSOR shall assign and coordinate all DID, CAP Code and, at
RESELLER's option, toll free numbers in order to ensure the
compatible initiation of SERVICES to RESELLER's Subscribers
placed on LICENSOR's Paging System. LICENSOR shall provide at no
charge, all required software, documentation and training to
RESELLER to authorize and enable RESELLER to initiate and
terminate SERVICES to RESELLER's customers as Subscribers on
LICENSOR's Paging System.
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<PAGE> 7
(e) Where permissible and technically feasible, LICENSOR shall work to
support and enable RESELLER to move a Subscriber from LICENSOR to
RESELLER without changing equipment.
(f) LICENSOR will provide sample collateral and marketing materials.
This will include network manuals and features / options
collateral. RESELLER shall have the right to copy, modify,
reproduce and change all collateral and use and distribute such
collateral in modified or unmodified form without further consent
of or payment to LICENSOR provided that RESELLER shall not omit
or misstate any material fact contained in the collateral or
marketing material, including without limitation, the
specifications or functionality of the equipment, the SERVICES,
or LICENSOR's network capability. RESELLER will defend,
indemnify and hold harmless LICENSOR from any claim, assertion,
suit, demand or proceeding ("Claim"), to the extent that such
Claim is caused by modification by RESELLER to, or use by
RESELLER beyond that contemplated by this Agreement of,
collateral, marketing materials or manuals provided by LICENSOR
to RESELLER under this Section 6(f).
(g) At the request of RESELLER, LICENSOR shall provide RESELLER
training for all SERVICES covered by the scope of this Agreement
no less than ten (10) days, but not more than thirty (30) days
prior to RESELLER's scheduled introduction of those SERVICES.
(h) LICENSOR shall provide and support on-line access to LICENSOR's
administration system by which RESELLER may activate, deactivate,
suspend, or terminate SERVICES to its Subscribers.
(i) LICENSOR shall provide, support and update its zip code coverage
area database to reflect its Paging System coverage areas.
(j) LICENSOR shall use its commercially reasonable best efforts to
provide at least ninety (90) days' prior written notice of new
products and services offerings.
(k) LICENSOR shall use its commercially reasonable best efforts to
provide at least ninety (90) days' notice of revisions to
LICENSOR's administrative ordering system that may materially
affect LICENSOR's ability to provide SERVICES or RESELLER's
ability to initiate and terminate SERVICES to RESELLER's
customers as Subscribers on LICENSOR's Paging System.
(l) If LICENSOR alters or revises transmission protocols, LICENSOR
shall provide at least one hundred eighty (180) days' advance
notice to RESELLER prior to the effective date of such proposed
change. If LICENSOR changes transmission protocols whereby
previously authorized Equipment is no longer authorized for
additional users on LICENSOR's transmission system, except only
to the extent prohibited by law, LICENSOR agrees to grandfather
all of
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<PAGE> 8
RESELLER's existing Subscriber's Equipment for continued use on
the LICENSOR's network until LICENSOR proposes a mutually
acceptable transition plan for such grandfathered Subscribers'
Equipment. At the end of the one hundred eighty (180) days'
notice period, RESELLER shall no longer sell or place into
service under lease additional units of Equipment that is no
longer authorized for additional users on LICENSOR's transmission
system.
(m) LICENSOR shall assist and support RESELLER in integrating
RESELLER'S billing and administration systems with LICENSOR's
administration system to permit RESELLER to simplify and maximize
its efficiency in reselling LICENSOR's SERVICES.
(n) LICENSOR shall provide repair services to RESELLER and RESELLER's
Subscribers in accordance with the terms of Exhibit C to this
Agreement.
(o) LICENSOR shall provide network reports in accordance with the
terms in Exhibit D to this Agreement.
7. RESELLER RESPONSIBILITIES
(a) RESELLER shall be solely responsible for providing all sales,
Equipment and customer support services to its Subscribers.
RESELLER further agrees that all Equipment provided to its
Subscribers shall be compatible with the existing transmission
system of LICENSOR. RESELLER further agrees that all Equipment
provided to its Subscribers for use on LICENSOR'S transmission
system shall utilize the industry standard of FLEX (TM) based
protocols.
(b) RESELLER shall be solely responsible for all billings to and
collections from its Subscribers, including but not limited to
the sending of periodic bills, collection of amounts owed or past
due, and the collection and return of all applicable taxes on
such SERVICES or Equipment rentals.
(c) RESELLER shall provide and mail all announcements or notices
required to be mailed to its Subscribers as required by any
regulatory agency.
(d) RESELLER shall maintain and keep in good working order all
Equipment sold or leased by RESELLER to its Subscribers pursuant
to the terms of this Agreement, in accordance with all
manufacturer's specifications and the provisions of the filed
tariffs of LICENSOR.
8. PERFORMANCE STANDARDS
LICENSOR agrees to comply with the Performance Requirements
encompassed in Exhibit B to this Agreement. If LICENSOR fails to meet
any of the Performance
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<PAGE> 9
Requirements (except to the extent such failure is caused by a Force
Majeure event or an act or omission of RESELLER), RESELLER may provide
written notice to LICENSOR regarding such failure and LICENSOR shall
use its best efforts to comply with such Performance Requirements. If
LICENSOR fails to meet such Performance Requirements (except to the
extent such failure is caused by a Force Majeure event or an act or
omission of RESELLER) within thirty (30) days after RESELLER's notice,
LICENSOR shall pay to RESELLER as liquidated damages and not as a
penalty, an amount equal to * dollars ($ *) for each Performance
Requirement LICENSOR failed to meet (counted on the basis of one
failure per applicable measuring period for each Performance
Requirement), it being agreed that RESELLER's damages would be
impossible to ascertain and the amount indicated above is a reasonable
estimate of same. If LICENSOR fails to meet such Performance
Requirement (except to the extent such failure is caused by a Force
Majeure event or an act or omission of RESELLER) within sixty (60) days
after RESELLER's notice, or if LICENSOR fails to meet the same
Performance Requirement (except to the extent such failure is caused by
a Force Majeure event or an act or omission of RESELLER) four (4) times
in any rolling twelve (12) month period, LICENSOR shall be in default
under this Agreement. Imposition of liquidated damages pursuant to this
paragraph shall be in lieu of any damages RESELLER may suffer by reason
of any failure by LICENSOR to comply with the Performance Requirements,
provided that RESELLER shall further be entitled to any other relief to
which RESELLER would otherwise be entitled under Section 21 or 26 of
this Agreement.
9. PERFORMANCE MEASUREMENTS
LICENSOR's performance shall be measured against the Performance
Requirements of Exhibit B as reported by RESELLER's Performance
Measurements Report Card. RESELLER shall meet with LICENSOR within
thirty (30) days of contract execution to present Report Card
Performance Measurements. The Report Card Performance Measurements
will also reflect RESELLER's Performance Objectives, which may in many
respects be more stringent than the contract requirements. On a
quarterly basis, RESELLER shall compile the performance data and
publish the Performance Report on Vendor Effectiveness (PROVE) Report
Card. LICENSOR shall provide written action plans for Performance
Measurements that do not meet RESELLER's Performance Requirements
Report Card. Additional action plans shall be provided to RESELLER in
conjunction with pre-scheduled meetings for all Report Card
Performance Measurements not met on a quarterly basis. The corrective
action associated with the action plans shall be implemented within
thirty (30) days, unless the parties otherwise agree.
10. SERVICE COMMITMENT
In the event a particular terminal or transmitter of LICENSOR's Paging
System is inoperable for a period of twenty-four (24) hours or more,
and RESELLER's customer is not able to receive SERVICES because of the
outage and RESELLER issues a credit because of such outage, RESELLER
agrees to provide an accounting of such credits to LICENSOR and
LICENSOR agrees to credit RESELLER * period for each affected pager,
for a maximum of * periods in any one month. RESELLER agrees to provide
an accounting to LICENSOR of the number of pagers for which a credit
was issued by RESELLER and LICENSOR's credit to RESELLER shall appear
on RESELLER's invoice for the next regular billing cycle.
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* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 10
11. PUBLIC REGULATION
(a) It is understood that the ultimate control and responsibility
for the standard and quality of SERVICES required under the
provisions of and license issued by the FCC to LICENSOR shall
be retained, rest and remain the prerogative and obligation
solely of LICENSOR. No provision of this Agreement shall be
construed as vesting in RESELLER any control whatsoever of the
radio communication facilities and operations of LICENSOR. To
the extent any performance obligations assumed in this
Agreement exceed standards set by the FCC, paragraphs (b) or
(c) of this section shall not be construed to relieve LICENSOR
from the performance obligations assumed in this Agreement.
(b) This Agreement is subject to all of the terms and conditions
of LICENSOR's outstanding authorizations from the FCC and the
utility regulatory agencies in the states to which this
Agreement pertains, as such tariffs and authorizations are
presently in effect or as they may hereafter be revised.
Nothing in this Agreement shall be construed so as to impair
or diminish LICENSOR's control over the facilities of the
applicable stations.
(c) It shall be LICENSOR's obligation to obtain all federal, state
and local approvals that are required for LICENSOR's lawful
participation in this Agreement.
(d) This Agreement shall be terminated, amended, revised, or
supplemented immediately if required by applicable law or
regulation; provided, that RESELLER shall have the option to
terminate this Agreement on thirty (30) days' written notice
to LICENSOR, given after receipt of written notice from
LICENSOR of such a required amendment, revision or supplement,
that RESELLER determines will have a material impact on its
products, services or business.
(e) The imposition by federal, state or local regulatory agencies
of any amendments, revisions, deletions or supplements to this
Agreement shall thereby relieve LICENSOR and RESELLER of any
obligations or liabilities to the other resulting from the
provisions of this Agreement which were ordered amended,
revised, deleted or supplemented; provided, that RESELLER
shall have the option to terminate this Agreement on thirty
(30) days' written notice to LICENSOR, given after receipt of
written notice from LICENSOR of such a required amendment
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<PAGE> 11
revision or supplement, that RESELLER determines will have a
material impact on its products, services or business.
12. PRICING
(a) RESELLER hereby agrees to pay LICENSOR the charges and fees
for SERVICES specified in Exhibit A in accordance with the
terms and conditions contained herein.
(b) The charges and fees specified in Exhibit A shall commence at
the time RESELLER activates each particular number in LICENSOR's
Paging System. Such charges shall continue for each number for
a minimum of thirty (30) days, and thereafter until the number
in question is canceled or otherwise disconnected in accordance
with the provisions herein. When a number is activated in the
middle of a month, the applicable rate will be prorated to the
first of the following month so that all subsequent bills will
be tendered thereafter on a monthly basis.
(c) With the exception of Telephone Interconnect Charge changes, the
specified prices in Exhibit A shall remain firm for the first
twelve (12) months of this Agreement. Thereafter, each party
may propose price adjustments once in each successive twelve
(12) month period of the Term by giving written notice to the
other at least ninety (90) days prior to the proposed effective
date of the new pricing. However, no price adjustment will be
effective unless mutually agreed by the parties in writing.
LICENSOR shall honor all prices for SERVICES for which orders
have been issued prior to the effective date of such adjustment.
(d) Notwithstanding the foregoing or anything to the contrary
contained in this Agreement or any schedule or exhibit attached
hereto, LICENSOR shall have the right, where permitted by
applicable law or regulation, to change the fees charged for
SERVICES at any time upon thirty (30) days prior notice to
RESELLER in the event LICENSOR deems such change necessary to
comply with applicable law or regulation, whether state or
federal, or in the event LICENSOR determines that a change in
applicable law or regulation substantially affects LICENSOR's
operating costs. If RESELLER deems such requested changes
unreasonable or undesirable, RESELLER may terminate this
Agreement upon thirty (30) days written notice to LICENSOR.
(e) LICENSOR warrants and represents that the prices for SERVICES
hereunder are and will remain during the Term of this Agreement
no less favorable than those extended to any other similarly
situated RESELLER of LICENSOR of the same or substantially
equivalent or like classification as RESELLER for the same volume
levels achieved by RESELLER for the same or like SERVICES on
substantially similar terms and conditions.
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<PAGE> 12
(f) Where allowable by the state regulating authority, the prices
charged by RESELLER to its Subscribers for all SERVICES shall be
determined solely by RESELLER. In states where tariff rates are
required, RESELLER may operate under its own tariff or the
tariff of LICENSOR.
13. BILLING AND COLLECTIONS
(a) LICENSOR will provide RESELLER a single tape for monthly
recurring charges and excess usage in an agreed format.
LICENSOR shall provide usage data to RESELLER no later than ten
(10) days after the first day following the month such charges
were incurred. Invoice and detail shall be received no later
than fifteen (15) days after the first day of the month
following the month such charges were incurred. LICENSOR shall
endeavor to reduce the interval for provision of invoices and
detail to no more than five (5) days as soon as feasible for
RESELLER data.
(b) The invoice and associated detail must be generated and supplied
in an acceptable electronic format as predetermined by both
parties.
(c) Both parties shall collaboratively develop and establish
mutually acceptable protocol and system requirements to
accommodate electronic data transfer between their respective
computer systems.
(d) RESELLER shall not recognize nor remit payment for Usage
sensitive charges incurred sixty (60) or more days preceding bill
date.
(e) LICENSOR shall provide the data required by RESELLER's billing
department to credit RESELLER for network outages. This credit
process shall be an automated process and shall not require a
credit request from RESELLER.
14. TERMS OF PAYMENT
Payment shall be due thirty-one (31) days after the date of LICENSOR's
invoice, or the receipt of LICENSOR's invoice, whichever is later. The
invoice rendering date and dates showing the time period covered by
the invoice must be printed on the invoice. Amounts disputed by
RESELLER shall be withheld from the monthly remittance and LICENSOR
shall be notified in writing of such disputed amounts and shall be
provided with documentation supporting such disputed amounts within
thirty-one (31) days of RESELLER's receipt of the invoice containing
such disputed charges. If the parties are unable to resolve the
dispute within thirty (30) days following LICENSOR's receipt of
RESELLER's written notice of disputed charges and supporting
documentation, the dispute shall at the request of either party that
wishes to pursue the matter be submitted for resolution via the terms
of Section 28 of this Agreement. RESELLER shall only be assessed late
charges for amounts held in dispute that are determined pursuant to
the resolution provisions of Section 28 to have been disputed in bad
faith.
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Such late charges shall be assessed at the rate of one and one-half
percent (1 1/2%) per month on the disputed amount outstanding.
15. WARRANTY
LICENSOR represents and warrants that its Paging System and any
software provided to RESELLER for use in association with the SERVICES
is capable of correctly processing, providing, and receiving date data
as well as properly exchanging accurate date data with all products
(for example, hardware, software and firmware) with which this Paging
System and software is designed to be used and will not malfunction or
cease to function due to an inability to correctly process such date
data, including but not limited to transitions to or from the years
1999 and 2000.
16. RIGHT TO AUDIT
Upon written notice to LICENSOR, RESELLER or its authorized
representative, shall have the right to commence an audit of
LICENSOR's books, records and operations pertaining to its performance
of this Agreement. The scope of the audit may include, but is not
limited to: financial records, documentation and procedures, and
input and output processing. Within thirty (30) days of such notice,
the Parties will determine the location, date and specific information
to be audited. No more than two audits may be conducted in any
calendar year. Audits will be conducted during normal business hours
and shall be of such records, accounts and internal processes and
procedures that contain information concerning any reports provided by
LICENSOR or any charges payable under the terms of this Agreement
including, but not limited to, billing logic and associated systems.
The cost of the audit shall be borne by RESELLER if the amount of
overcharges discovered but not previously reimbursed to RESELLER does
not exceed five percent (5%) of net payments to LICENSOR over the
previous twelve (12) months. However, the cost of such audit shall be
borne by LICENSOR if the amount of overcharges discovered but not
previously reimbursed to RESELLER exceeds five percent (5%) of
RESELLER's net payments to LICENSOR over the previous twelve (12)
months. All auditors shall be subject to the confidentiality
requirements of both parties established herein.
17. PRECEDENCE OF DOCUMENTS
All orders for SERVICES placed by RESELLER upon LICENSOR during the
Term hereof shall be subject to and governed by the provisions
contained herein. The terms and conditions of this written Agreement
shall control over any conflicting or inconsistent terms and
conditions contained in any order placed with LICENSOR by RESELLER and
in any order confirmation issued by LICENSOR to RESELLER.
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<PAGE> 14
18. USE OF CONFIDENTIAL INFORMATION
(a) Any specifications, drawings, sketches, models, samples,
tools, computer programs, technical information, or
confidential business information or data disclosed by one
party to the other hereunder, if in writing and clearly marked
as "confidential" or with words of clearly similar meaning, at
the time of disclosure, or if oral and designated as
confidential at the time of disclosure as well as summarized
in a writing indicating the confidential nature of the same
within twenty (20) days of disclosure (hereinafter called
"Confidential Information"), shall remain the property of the
supplier of such Information. All copies of such Confidential
Information in written, graphic or other tangible form shall
be returned to the discloser upon request,
(b) For the purposes of this Agreement, Confidential Information
shall not include any information that:
(1) was previously known to the recipient;
(2) is subsequently received by the recipient free from
any obligation to keep it confidential;
(3) is independently developed by the receiving party; or
(4) was or is subsequently made public by the supplier or
a third party, without breach of any obligation of
confidentiality.
All Confidential Information shall be treated as confidential
and not disclosed by the recipient, and shall unless the prior
written consent of the disclosing party is obtained be used by
the recipient only in connection with fulfilling the
obligations of the recipient that arise pursuant to this
Agreement, Confidential Information shall only be distributed
to those employees of the recipient who have a need to know.
(c) Each party shall treat the other's Confidential Information in
accordance with a standard of care reasonably calculated to
prevent inadvertent or accidental disclosure. Nothing herein
shall be construed as waiving the right of any party to
require the other party to execute a written nondisclosure
agreement, containing reasonable additional terms and
conditions, prior to the supplying of particular Confidential
Information from time to time.
(d) LICENSOR shall take such measures as necessary to ensure that
all information regarding RESELLER's customers and potential
customers received by LICENSOR from RESELLER is not made
available to or used by LICENSOR, its affiliates, employees or
agents for any purposes other than to support RESELLER. This
shall not, however, be construed to prohibit
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LICENSOR from competing with RESELLER, provided it does not
use RESELLER provided information to do so.
19. PUBLICITY
The parties agree to submit to one another for written approval all
advertising, sales promotion, press releases and other publicity
matters relating to the SERVICES furnished or the SERVICES performed
by them pursuant to this Agreement whereby their respective names or
marks are mentioned or language from which the connection of said
names or marks therewith may be inferred or implied, and the parties
further agree not to publish or use such advertising, sales
promotions, press releases, or publicity matters without such prior
written approval. Such approval shall not be unreasonably withheld or
delayed by either party.
20. COMPLIANCE WITH LAWS
The parties hereto shall comply with the provisions of all applicable
federal, state, county and local laws, ordinances, regulations and
codes (including procurement of required permits or certificates) in
their respective performance hereunder, including, but not limited to,
the standards promulgated under the Occupational Safety and Health
Act, Executive Order 11246, as amended, relative to Equal Employment
Opportunity, Section 503 of the Vocational Rehabilitation Act of 1973,
as amended, and Section 402 of the Vietnam Era Veterans Readjustment
Assistance Act of 1974 and all applicable laws, orders and regulations
concerning immigrants and non-discrimination in the employment of
minorities, females, veterans and the handicapped. Each party hereby
agrees to indemnify the other party, and defend the same against, any
claims, loss or damage sustained because of its noncompliance
hereunder.
21. FORCE MAJEURE
Neither LICENSOR nor RESELLER shall be responsible for any delay or
failure in performance of any part of this Agreement to the extent
that such delay or failure is caused by an event beyond its control,
which may include, but not be limited to, fire, flood, explosion, war,
strike, embargo, government requirement, civil or military authority,
and acts of God ("Condition(s)"). If any such Condition(s) occur(s),
the party delayed or unable to perform shall promptly give notice to
the other party and, if such Condition(s) remains at the end of thirty
(30) days thereafter or for more than thirty (30) days within any
ninety (90) day period, the party affected by the other's delay or
inability to perform may elect to suspend this Agreement or part
thereof, and resume performance of this Agreement once the
Condition(s) cease(s), with an option in the affected party to extend
the period of this Agreement up to the length of time the Condition(s)
endured. If such Conditions continue for more than thirty (30) days,
or for more than thirty (30) days within any ninety (90) day period,
either party shall have the right to terminate this Agreement upon
written notice to the other party.
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22. LIABILITY
(a) Notwithstanding anything to the contrary herein, each party
shall indemnify and save the other harmless the other from any
loss or damages (including reasonable attorney's fees)
incurred by the other because of claims, suits, or demands
based on personal injury or death or property damage or third
party claims, suits or demands of any kind, to the extent such
loss or damage is caused by or results from the negligent or
willful acts or omissions of the other or its employees or
agents. The indemnifying party shall receive the full
opportunity and authority to assume the defense of and
settlement of such suits. The indemnified party may
participate in the indemnifying party's defense of such matter
through its own counsel at its own expense if it so elects.
The indemnified party agrees to furnish to the indemnifying
party upon request all information and reasonable assistance
available to the indemnified party for defense against any
such suit, claim, or demand.
(b) LICENSOR will defend, indemnify and hold harmless RESELLER,
and RESELLER's employees, agents and customers, from any
claim, assertion, suit, demand or proceeding ("Claim")
alleging that the SERVICES, or any materials related thereto
(including collateral, marketing materials and manuals
referred to in Section 6(f) herein except to the extent
RESELLER is obligated to indemnify LICENSOR pursuant to 6(f)),
provided by LICENSOR under this Agreement, or use or
possession thereof, constitute, cause or result in direct or
contributory infringement or inducement of infringement,
misappropriation, misuse of any patent, copyright, trademark,
trade secret or other intellectual property or proprietary
right, including any right of privacy or publicity, of any
person or entity. LICENSOR shall pay all damages,
settlements, judgments, fines, penalties and costs (including
court costs and reasonable fees of attorneys) incurred in
connection with the Claim. RESELLER will promptly notify
LICENSOR of the Claim and, at LICENSOR's expense, provide
LICENSOR with all requested information and assistance
reasonably necessary to the defense of the Claim.
(c) LICENSOR makes no warranty, either express or implied
concerning its facilities, products, or SERVICES, including,
without limitation, warranties of merchantability or fitness
for a particular purpose. RESELLER acknowledges that service
interruptions in the telecommunications industry frequently
are due to circumstances beyond a carrier's control and are
difficult to assess as to cause or resulting damages. The
parties agree that LICENSOR shall not be liable beyond the
actual and direct loss to RESELLER arising out of any
mistakes, omissions, interruptions, delays, errors, or defects
in transmission of pages on LICENSOR's Paging System. Except
as otherwise provided in Sections 8 and 10, LICENSOR's
liability in each instance shall not exceed an amount
equivalent to the proportionate charge to RESELLER for the
period of the disruption of
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SERVICES or the amount of five hundred dollars ($500),
whichever is more. LICENSOR shall not be liable for any act
or omission of any other entity furnishing services to
RESELLER. Except with respect to a breach of the provisions
of Section 18, neither party shall be liable for any special,
incidental or other consequential damage or losses, including
without limitation lost profits, or for loss of stored,
transmitted or recorded data, even if it has been advised of
the possibility of such damages, nor shall either party be
liable for any such damages due to the fault or negligence of
the other party or its employees, agents, or representatives.
With regard to breaches of Section 18, the liability of the
breaching party shall not exceed ten thousand dollars
($10,000.00) per breach unless the breach is found to be
knowing and intentional.
(d) All work performed under this Agreement by any party shall be
performed as an independent contractor and not as an agent of
any other party. Persons furnished by the respective parties
shall be solely the employees or agents of the furnishing
party, and shall be under the sole and exclusive direction and
control of such party. They shall not be considered employees
of the other party for any purpose. Each party shall be
responsible for compliance with all laws, rules and
regulations involving its employees or agents, including (but
not limited to) employment of labor, hours of labor, health
and safety, working conditions and payment of wages. Each
party shall also be responsible, for payment of taxes,
including federal, state, and municipal taxes, chargeable or
assessed with respect to its employees or agents, such as
social security, unemployment, workers' compensation,
disability insurance and federal and state income tax
withholding.
(d) RESELLER and LICENSOR each agree to maintain during the
term hereof all insurance and/or bonds required by law or this
Agreement, including, but not limited to (1) Workers'
Compensation and related insurance as prescribed by applicable
law; (2) employer's liability insurance with limits of at least
$100,000 for each occurrence, and (3) comprehensive general
liability insurance including products liability, and, if the
use of motor vehicles is required, comprehensive motor vehicle
liability insurance, each with limits of at least $500,000 for
combined single limit for bodily injury, including death,
and/or property damage. RESELLER and LICENSOR each shall cause
the other to be included as an Additional Insured under their
respective policies and RESELLER's and LICENSOR's appropriate
coverage under such policies shall be primary. RESELLER and
LICENSOR each shall furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that
no material change or cancellation of any such policy shall be
effective unless thirty (30) days advanced written notice is
given to the party named as an Additional Insured.
Notwithstanding the above, LICENSOR and RESELLER shall each
have the option, where permitted by law, to self-insure any or
all of the foregoing risks.
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23. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and
obligations of the parties hereunder shall neither be assigned
nor delegated without the prior written consent of the other
party, provided that either may assign or delegate its
respective rights and obligations hereunder, in whole or in
part, to any parent, subsidiary or affiliate of RESELLER or
LICENSOR that was a parent, subsidiary or affiliate at the
time of execution of this Agreement upon notice and without
the consent of the other party. Such assignment shall not
diminish any rights or duties that LICENSOR or RESELLER may
have had prior to the effective date of assignment.
(b) The limitation on assignment does not apply to an assignment
confined solely to moneys due or to become due under this
Agreement, provided that the assigning party gives the other
party to this Agreement thirty (30) days prior written notice
of such assignment. An assignment of moneys shall be void to
the extent that it imposes upon RESELLER or LICENSOR
obligations to the assignee in addition to the payment of such
moneys, or to preclude RESELLER or LICENSOR from dealing
solely and directly with the other in all matters pertaining
hereto, including negotiation of amendments or settlement of
amounts due. If RESELLER or LICENSOR makes such an
assignment, it is and shall remain responsible for payment
hereunder.
(c) Either party may transfer this Agreement as part of a merger
or upon the sale of all or substantially all of that party's
business on notice to the other party whose consent shall not
be required unless the purchaser is a direct competitor of the
party receiving the notice, in which case the party receiving
the notice shall have the option to terminate this Agreement
on ninety (90) days' notice.
24. TAXES
RESELLER shall be liable for and shall reimburse LICENSOR for actual
payments of any retailers' excise taxes, state and local sales and use
taxes, or any similar taxes as applicable, with respect to
transactions under this Agreement. Taxes payable by RESELLER shall be
separately stated in LICENSOR's invoices and shall not be included In
LICENSOR's prices. RESELLER shall not be liable for any tax for which
a valid exemption certificate acceptable to the applicable state or
local taxing authorities is furnished by RESELLER to LICENSOR.
25. RECORDS
(a) LICENSOR shall maintain complete and accurate records of all
amounts billable to and payments made by RESELLER hereunder,
in accordance with generally accepted accounting practices.
LICENSOR shall retain such records
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for a period of three (3) years from the date of rendering of
SERVICES covered by this Agreement. LICENSOR agrees to
provide to RESELLER supporting documentation concerning any
disputed amount of invoice within thirty (30) days after
RESELLER provides written notification of the dispute to
LICENSOR along with RESELLER's documentation supporting any
disputed amount. LICENSOR shall retain such records for three
(3) years from date of invoice.
(b) RESELLER's original Subscriber records shall be and remain the
property of RESELLER. LICENSOR shall be entitled at
LICENSOR's expense during normal business hours to make copies
of such records directly relating to information verifying the
number of Subscribers or compliance by RESELLER to the terms
of this Agreement.
26. RIGHT OF ACCESS
LICENSOR and RESELLER shall each permit reasonable access during
normal working hours to its facilities in connection with work
hereunder. No charge shall be made for such visits. It is agreed
that reasonable prior notification shall be given when access is
required and that access is subject to compliance with the facility
rules of conduct and security procedures of the visited property.
27. TERMINATION
(a) RESELLER may terminate this Agreement with or without cause,
upon thirty (30) days' written notice to LICENSOR.
Termination shall not affect any order placed prior to the
date of termination,
(b) Either party may terminate this Agreement, effective
immediately, without liability for said termination, upon
written notice to the other party, if any of the following
events occur:
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the
other under a federal reorganization act;
(4) A trustee or receiver is appointed by a court for all
or a substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes an assignment of its assets for the
benefit of its creditors, except as required in the
ordinary course of business;
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(c) Either party may immediately terminate this Agreement for a
material breach or default of any of the terms, conditions or
covenants of this Agreement by the other, provided that such
termination may be made only following the expiration of a
thirty (30) day period during which the other party has failed
to cure such breach after having been given written notice of
such breach.
(d) In the event of a material breach or default by LICENSOR,
provided that LICENSOR has failed to cure the same within
thirty (30) days of its receipt of RESELLER's written notice
of default, or if said default cannot be cured within a thirty
(30) day period, LICENSOR has failed to commence and
diligently pursue curing such a default, RESELLER shall be
under no obligation to continue to provide LICENSOR's SERVICES
to its Subscribers, and RESELLER shall have the right to
assign those Subscribers to another paging service.
28. DISPUTE RESOLUTION
(a) The parties desire to resolve certain disputes, controversies
and claims arising out of this Agreement without litigation.
Accordingly, except in the case of (i) a suit, action or
proceeding to compel a party to comply with its obligations to
indemnify the other party pursuant to this Agreement or (ii) a
suit, action or proceeding to compel either party to comply
with the dispute resolution procedures set forth in this
Section 27, the parties agree to use the following alternative
procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating to this
Agreement or its breach. The term "Arbitrable Dispute" means
any dispute, controversy or claim to be resolved in accordance
with the dispute resolution procedure specified in this
Section 27.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any Arbitrable Dispute
arising under this Agreement. The parties intend that these
negotiations be conducted by nonlawyer, business
representatives. The discussions shall be left to the
discretion of the representatives. Upon written agreement,
the representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes of
settlement, shall be exempt from discovery and production, and
shall not be admissible in the arbitration described below or
in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications,
which are not prepared for purposes of the negotiations, are
not so exempted and may, if otherwise admissible, be admitted
in evidence in the arbitration or lawsuit.
Page 17
<PAGE> 21
(c) If the negotiations do not resolve the Arbitrable Dispute
within sixty (60) days of the initial written request, the
Arbitrable Dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. A party may
demand such arbitration in accordance with the procedures set
out in those rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out in
this Section. Each party may submit in writing to a party,
and that party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have
subparts) of the following: interrogatories, demands to
produce documents and requests for admission. Each party is
also entitled to take the oral deposition of one (1)
individual of another party. Additional discovery may be
permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60) days
of the demand for arbitration and the arbitration shall be
held in Dallas, Texas. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The
parties may submit written briefs. The arbitrator shall rule
on the Arbitrable Dispute by issuing a written opinion within
thirty (30) days after the close of hearings. The times
specified in this Section may be extended upon mutual
agreement of the parties or by the arbitrator upon a showing
of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A
party seeking discovery shall reimburse the responding party
the cost of production of documents (to include search time
and reproduction time costs). The parties shall equally share
the fees of the arbitration and the arbitrator.
29. NOTICES
Any notice or demand given under the terms of this Agreement or
pursuant to statute shall be in writing and shall be given or made by
telegram, facsimile transmission, certified or registered mail,
express mail or other overnight delivery service or hand delivery,
proper postage or other charges paid and addressed or directed to the
respective parties as follows;
To RESELLER:
GTE Communications Corporation
5221 N. O'Connor Boulevard
East Tower, 14th Floor
Irving, Texas 75039
Attention: Director - Contract Management (HQL06C43)
Page 18
<PAGE> 22
To RESELLER's LEGAL:
GTE Communications Corporation
5221 N. O'Connor Boulevard
East Tower, 14th Floor
Irving, Texas 75039
Attention: Legal Department (HQL06B62)
To LICENSOR:
PageMart Wireless, Inc.
3333 Lee Parkway
Suite 100
Dallas, Texas 75219
Attention: Vice President - Strategic Alliance Business Unit
Such notice or demand shall be deemed to have been given or made when
actually received or the third business day following the day it is
dispatched after being sent, whichever occurs first.
The address for notice set out above may be changed at any time by
giving thirty (30) days prior written notice in the manner above.
30. NONWAIVER
Either party's failure to enforce any of the provisions of this
Agreement and/or any purchase order, or to exercise any option
hereunder, shall in no way be construed as a waiver of such
provisions, rights, or options, or in any way be deemed to affect the
validity of this Agreement or any purchase order.
31. SEVERABILITY
Should any material part of this Agreement for any reason be declared
invalid by order of any court or regulatory agency, the parties shall
meet and determine whether such action shall not affect the validity
of any remaining portion, which shall remain in force and effect as if
this Agreement had been executed with the invalid portion eliminated,
or shall require renegotiation or termination.
32. SECTION HEADINGS
The headings of the sections herein are inserted for convenience only
and are not intended to affect the meaning or interpretation of this
Agreement.
Page 19
<PAGE> 23
33. SURVIVAL OF OBLIGATIONS
The respective obligations of LICENSOR and RESELLER under this
Agreement which by their nature would continue beyond the termination,
cancellation or expiration hereof, shall survive termination,
cancellation or expiration hereof.
34. CHOICE OF LAW
The construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the domestic
laws of the state of Texas.
35. ENTIRE AGREEMENT
This Agreement and the exhibits hereto constitute the entire agreement
between LICENSOR and RESELLER. No modifications shall be made to this
Agreement unless in writing and signed by appropriate representatives
of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized corporate representatives.
GTE COMMUNICATIONS PAGEMART WIRELESS, INC.
CORPORATION
By: /s/ ROBERT E. STEWART for By: /s/ DOUGLAS S. GLEN
Deb Covey
Name: Robert E. Stewart Name: Douglas S. Glen
Title: AVP-Billing and Cost Mgmt. Title: Executive Vice President
Date: 12/30/97 Date: 12/19/97
Page 20
<PAGE> 24
EXHIBIT A
PRICING
<TABLE>
<CAPTION>
[1] NUMERIC SERVICES
PER MO, PER UNIT NETWORK US 800/888 800/888
COVERAGE FLEX NETWORK RATE OVERCALL LEVEL CHARGE OVERCALL LEVEL
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Local $ * >400 @ $ * + $ * >200 @ $ *
Numeric Roam USA $ * >400 @ $ * + $ * >200 @ $ *
(Includes PR-VI-Bahamas)
Numeric Roam International $ * >400 @ $ * + $ * >200 @ $ *
(USA + all other coverage)
Pick-A-City USA $ * >400 @ $ * + $ * >200 @ $ *
Pick-A-City International $ * >400 @ $ * + $ * >200 @ $ *
Statewide $ * >400 @ $ * + $ * >200 @ $ *
Regional $ * >200 @ $ * + $ * >200 @ $ *
Nationwide 48 states $ * >200 @ $ * + $ * >200 @ $ *
Extended Nationwide $ * >200 @ $ * + $ * >200 @ $ *
(48 states+AL-HI-PR-VI)
International N/A use International Roam
(Extended NW+Can-Mex-Cntrl Am)
</TABLE>
NOTES:
(a) GTECC and PageMart agree that the above aggregate pricing is reflective of
GTECC utilizing PageMart as the "Preferred Network Provider" versus other
similar paging network carriers for like paging services, coverages and
related messaging services currently offered by PageMart.
(b) Prices are for FLEX protocol pagers only.
(c) International options require use of paging frequency 929.6625 Mhz only.
(d) Numeric Roaming services include numeric retrieval.
(e) All rates are per unit per month unless noted otherwise.
(f) Services rates quoted above include aggregate overcall billing. Aggregate
pricing refers to billing overcall charges only after an aggregate overcall
threshold has been exceeded. The aggregate overcall threshold is the product of
the numbers of GTECC subscribers and their respective overcall threshold. For
example, the aggregate threshold for 500 local units in service is 200,000
calls/month (500 X 400 calls). If total call count for this group of 500 pagers
was 220,000 calls, then overcall charges incurred for that month would be *
(20,000 calls x $ * ). For numeric paging there are three thresholds subject to
overcalls: (1.) Local, Roam, and Statewide; (2.) Regional; and (3.) Nationwide
and Extended Nationwide. AGGREGATE BILLING IS NOT AVAILABLE FOR 800 OR 888
SERVICE.
(g) Aggregate pricing is contingent, upon GTECC selling/supporting industry
standard overcall thresholds and rates in order to create penalties for
overcall abusers.
(h) Aggregate pricing is contingent upon GTECC customer usage profile not
changing significantly from the current industry usage standards of 80 calls
per month; should a change occur, the aggregate pricing may be revised to
insure PageMart fair compensation.
(i) PageMart 800/888 numbers will not accept toll-free calls that originate
from pay phones. PageMart will permit GTE to accept calls originating from pay
phones provided GTE agrees to pay for those calls on a per call basis.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
Page A-1
<PAGE> 25
[2] ADDITIONAL NUMERIC SERVICES
<TABLE>
<CAPTION>
SERVICE RATES PER MONTH
- --------------------------------------------------------------------------------------
<S> <C>
Generic Greeting no charge
Custom Greeting $*
Numeric Retrieval $*
Second DID (US) $*
800 / 888 Canadian Access $* (>200 calls, $* per call)
VoiceMail:
Small Talk (5 mes., 20 sec., 12 hour) $*
Small Talk with US 800 / 888 $*
Standard (15 mes., 30 sec., 24 hour) $*
Standard with US 800 / 888 $*
Executive (15 mes., 60 sec., 48 hour) $*
Executive with US 800 / 888 $*
VIP (15 mes., 120 sec., 48 hour) $*
VIP with US 800 / 888 $*
</TABLE>
ADDITIONAL TEXT SERVICES:
<TABLE>
<CAPTION>
SERVICE RATE
- --------------------------------------------------------------------------------------
<S> <C>
Broadcast Services-Generic, for all subscribers $* per month
</TABLE>
* CONFIDENTIAL MATERIAL HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT.
Page A-2
<PAGE> 26
[3] TEXT SERVICES
<TABLE>
<CAPTION>
PER MO, PER UNIT TEXT NETWORK NUMERIC NET. US 800/888 US 800/888
COVERAGE FLEX NETWORK RATE OVERCALL LEVEL OVERCALL LEVEL CHARGE OVERCALL LEVEL
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Local $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Roam USA
(Includes PR-VI-Bahamas) $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Roam International
(USA + all other coverage) $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Pick-A-City USA $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Pick-A-City International $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Statewide $ * >75 @ $ * >400 @ $ * + $ * >200 @ $ *
Regional $ * >50 @ $ * >200 @ $ * + $ * >200 @ $ *
Nationwide all 48 states $ * >50 @ $ * >200 @ $ * + $ * >200 @ $ *
Extended Nationwide $ * >50 @ $ * >200 @ $ * + $ * >200 @ $ *
(48 states+AL-HI-PR-VI)
International N/A use Roam International
(Extended NW+Can-Mex-Cntrl Am)
</TABLE>
NOTES:
(a) GTECC and PageMart agree that the above pricing is reflective of GTECC
utilizing PageMart as the "Preferred Network Provider" versus other similar
paging network carriers for like paging services, coverages, and related
messaging services currently offered by PageMart.
(b) All packages include 100 characters per message unless otherwise noted.
(c) All rates are for FLEX protocol only pagers.
(d) International options require equal level of US service and 929.6625 Mhz.
(e) Roaming includes text message retrieval and numeric retrieval.
(f) All rates are per unit, per month unless noted otherwise.
(g) Service pricing for local, roam, and statewide levels only represent
aggregate billing. Aggregate billing refers to billing overcall charges only
after an aggregate overcall threshold has been exceeded. The aggregate overcall
threshold is the product of the numbers of GTECC subscribers and their
respective overcall threshold. For example, the aggregate threshold for 500
units in service is 37,500 calls/month (500 x 75 calls). If total call count for
this group of pagers was 42,500 calls, then overcall charges incurred for that
month would be $* (5,000 calls x $*). For text paging all Local, Roam, and
Statewide calls will be combined for aggregate computation. AGGREGATE BILLING
IS NOT AVAILABLE FOR 800 OR 888 SERVICE.
(h) Aggregate pricing is contingent upon GTECC selling/supporting industry
standard overcall thresholds and rates in order to create penalties for
overcall abusers.
(i) Aggregate pricing is contingent upon GTECC customer usage profile not
changing significantly from the current industry usage standards; if a change
should occur, the aggregate pricing may be revised to insure PageMart fairly
compensation.
(j) If a GTECC subscriber originates more than 500 text messages in one month,
GTECC and PageMart will discuss the validity of the application and remove that
customer from aggregation on the basis that at such a high level, over 16 text
messages per day, PageMart is not fairly compensated.
(k) PageMart 800/888 numbers will not accept toll-free calls that originate
from pay phones. PageMart will permit GTE to accept calls originating from pay
phones provided GTE agrees to pay for those calls on a per call basis.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
Page A-3
<PAGE> 27
[4] EQUIPMENT
PRODUCT NAME COST PER UNIT
- ------------------------------------------------
Motorola Pronto - Flex $ *
Motorola Bravo - Flex $ *
Motorola Ultra Express - Flex $ *
Uniden FX 9400 $ *
Uniden FLX 9050 $ *
Motorola Wordline $ *
Motorola Advisor Gold $ *
NOTES:
(a) Prices include freight charges for standard UPS shipment in the continental
US based on bulk shipments of more than 50 units.
(b) Pagers do not have face labels.
(c) Batteries are included.
(d) Product has a 90 day manufacturer warranty.
(e) Shipments/prices are based on availability.
(f) All rates are per unit.
(g) GTECC is under no obligation to purchase equipment from PageMart.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
Page A-4
<PAGE> 28
EXHIBIT B
PERFORMANCE REQUIREMENTS
1. PAGER ACTIVATION SYSTEM AVAILABILITY: Licensor's pager activation network
server will be available 98% of the time, less any scheduled downtime,
averaged over a 30 day period of time.
2. MEAN TIME TO RESTORE: The mean time to restore all trouble tickets opened
through the Licensor's Strategic Alliance Help Desk will be less than two
hours.
3. INITIAL NOTIFICATION: Licensor will provide initial notification for all
activation system outages and all major network outages via Reseller's
Network Management Center (800-500-8113) within 30 minutes of actual
identification of outage during normal business hours M-F 7:30 a.m. until
7:00 p.m. CST. All other weekday and weekend hours, Licensor agrees to
notify Reseller's Network Management Center within two hours of actual
identification of outage.
4. STATUS NOTIFICATION: Licensor will provide Reseller status notification for
all system outages/incidents via the Network Management Center
(800-500-8113) every thirty (30) minutes until the reportable
outage/incident is resolved unless otherwise agreed upon by Reseller.
5. PLANNED OUTAGE NOTIFICATION: Licensor will provide notification to Reseller
of all planned outages with the activation system and paging network no less
than two business days prior to the planned outage that could place
Reseller's Services at risk.
Should emergency maintenance outage be necessary, Licensor shall use its
commercially reasonable best effort to notify reseller via the Network
Management Center (800-500-8113 or E-mail) of the outage existence.
6. ROOT CAUSE ANALYSIS REPORT: For any major customer affecting
incident(s)/outage(s) Licensor will provide an Initial Root Cause Analysis
(RCA) Report(s) to Reseller within two business days.
Final Root Cause Analysis (RCA) Reports will be provided by Licensor to
Reseller via the Network Management Center within thirty (30) days of any
reportable event, incident or outage.
(A major incident/outage for RCA Reports is defined as any paging terminal
failure in excess of two (2) hours, satellite and satellite up-link failure
in excess of two (2) hours, any communications fiber or cable cut in excess
of four (4) hours, transmitter down in excess of twenty four (24) hours and
any activation and related equipment in excess of two (2) hours).
Page B-1
<PAGE> 29
EXHIBIT C
REPAIR REPORTING & ESCALATION PROCEDURES
1. Licensor shall accept and document all troubles referred from Reseller on
the Licensor's trouble reporting system.
2. Licensor shall contact Reseller via telephone to verify trouble has been
resolved prior to closing the trouble report. This mutual closing process
shall take place between Licensor and Reseller within one hour of trouble
resolution.
3. Licensor shall provide escalated repair and trouble shooting assistance for
Reseller's Customer Service Management team for those incidents that are
not the business norm via the Licensor's Strategic Alliance Help Desk as
outlined below.
MONDAY THROUGH FRIDAY DURING BUSINESS HOURS (7:30AM - 7:00PM (CT)):
a. Call Strategic Help Desk 800-260-2617. Leave a voice message, if you get
voice mail. If it is an emergency, press zero (0) and the operator will page
through the telephone public address system for a Strategic Alliance
Representative. (available 1/98)
b. If no response, call the Team's Supervisor, Glinda Freemon 214-765-3526
c. If no response, call the emergency On Call pager at 888-260-9524
d. If no response, call the Strategic Alliances Help Desk Manager Dyann
Freeman at 214-765-3575.
e. If no response, call the Director Phil Terry at 214-765-3398.
AFTER BUSINESS HOURS AND ON WEEKENDS:
f. Call the Emergency "On Call" pager 888-260-9524.
g. If no response in five minutes call the Numeric Number on the Emergency
"On Call" pager at 214-322-4240 and enter your phone number with area code.
h. If no response in five minutes page Glinda Freemon, Supervisor at
800-864-8444 PIN 121-1157.
j. If no response in five minutes page Dyann Freeman, Manager at
800-864-8444 PIN 121-0580.
Page C-1
<PAGE> 30
j. If no response in five minutes page Phil Terry, Director at 800-219-4611,
PIN 133-4686.
4. During any major network outage or emergency, certain designated Reseller's
management personnel may access the Licensor's Communication Center directly
for immediate crisis reporting, assessments and updates. The Licensor's
Communications Center may be reached directly at 800-864-5809 extension 3854
the shift Supervisor will then be the Licensor's primary contact for inquiry
handling. Direct access to the Licensor's Communications Center will be
restricted to certain and specific Reseller's management personnel, through
mutual consent, by both the Licensor and Reseller.
Page C-2
<PAGE> 31
EXHIBIT D
NETWORK REPORTS CRITERIA
The Licensor will provide the following confidential network and system reports
to Reseller by the fifteenth (15) day of each month, following the previous
month's performance. The report format may be modified from time to time by
mutual consent to meet the Reseller's needs. Initially, the reports will be
sent to the Senior Manager - Vendor Management Wireless via Email.
1. DIAL UP MODEMS FOR ALPHA/TEXT SERVICE: Licensor will provide a P.02
grade of service for all Alpha/Text modem access. An exception report
will detail the areas not achieving this level of service with an
estimated time for resolution and/or repair.
2. TRUNKING BUSY HOUR: Licensor will provide a P.02 grade of service for
circuits into all paging terminals. An exception report will detail
areas not achieving this level of service with an estimated time for
resolution and/or repair.
3. TRANSMITTER OUTAGES: Licensor will provide an exception report
detailing each transmitter outage in excess of four (4) hours. This
report will include, but not limited to, name, location (city/state),
total downtime with dates.
4. TERMINAL OUTAGES: This report will list each paging terminal on the
Licensor's system that was out of service for greater than one (1)
minute. The report will include, but not limited to, name,
location (city/state), total downtime with dates.
5. REPEAT TROUBLE - TRANSMITTER: This report will list any Licensor
repeat paging transmitter that has occurred within the same thirty
(30) day period. The report will detail name and location of each
transmitter.
6. REPEAT TROUBLE - TERMINAL: This report will list any Licensor repeat
paging terminal that has occurred within the same thirty (30) day
period. The report will detail name and location of each terminal.
7. ACTIVATION SYSTEM ACCESS: This report will measure Licensor's
responsiveness of the "PRIME" administrative activation system.
Hourly tests will be conducted during the hours of 10:00am - 5:00pm
CST.
8. INTERNET GATEWAY TRAFFIC STATISTICS: This report will measure the
accessibility and reliability of the Licensor's InterNet gateway. The
report details will be jointly determined by both Reseller and
Licensor during the 1st Quarter, 1998.
Page D-1
<PAGE> 32
7. BLOCKED CALLS: Licensor agrees to provide P.02 grade of service or
better for all paging customer calls placed into paging terminals.
8. PAGE DELAYS: Licensor agrees that paging transmission latency will
not exceed an average of 120 seconds per message averaged over a 24
hour period.
9. NETWORK RELIABILITY AND PERFORMANCE REPORTS: Licensor shall provide
to Reseller via the Network Management Center all required monthly
Network Reliability and Performance Reports by the fifteenth (15) day
of each month, following the previous month's performance. A listing
of these reports is contained in Exhibit D and is subject to change
by mutual consent.
Page D-2
<PAGE> 1
EXHIBIT 10.24
AGREEMENT BETWEEN
PAGEMART INCORPORATED
AND
GTE COMMUNICATION SYSTEMS CORPORATION
TO ASSUME
AND
AMENDMENT NO. 2
TO
RESALE AGREEMENT
NUMBER 999999-93-12
BETWEEN
PAGEMART INCORPORATED
AND
GTE SERVICE CORPORATION
ASSUMPTION
GTE Communication Systems Corporation, acting through its GTE Supply division,
for the benefit of itself and the affiliates enumerated in Exhibit D, with
offices at 700 Hidden Ridge, Irving, Texas 75038 ("RESELLER") assumes and
Pagemart Incorporated. with its principal offices located at 6688 North Central
Expressway, Suite 900, Dallas, Texas 75026 ("LICENSOR") accepts its assumption
of all rights and obligations of GTE SERVICE CORPORATION as RESELLER in said
Agreement Number 999999-93-12 as amended (Agreement).
AMENDMENT
THIS AMENDMENT NO. 2 to Resale Agreement Number 999999-93-12, between RESELLER
and LICENSOR shall be effective upon execution by both parties.
NOW, THEREFORE, the parties agree to the following changes for the mutual
benefit of both parties.
CHANGE NUMBER 1
Exhibit A, PRICING of the Agreement shall be replaced with Exhibit A, PRICING
attached hereto.
CHANGE NUMBER 2
In consideration of the renewal of Resale Agreement Number 999999-93-12
LICENSOR agrees to issue the credits and discounts in, and fulfill the other
commitments as detailed in Exhibit B, DISCOUNTS/CREDITS. By accepting the
discounts and credits listed in Exhibit B, RESELLER does not represent or
guarantee the ordering of any level or amount of Services from LICENSOR or any
peculiar status relative to other vendors.
CHANGE NUMBER 3
Exhibit C, AUTHORIZED EQUIPMENT attached hereto shall be added to the
Agreement.
CONFIDENTIAL
<PAGE> 2
CHANGE NUMBER 4
The following shall be added as Section 32:
32. AUTHORIZED EQUIPMENT
(a) RESELLER and its Subscribers shall only
utilize the Equipment listed in Exhibit C,
AUTHORIZED EQUIPMENT in connection with
LICENSOR's Services. LICENSOR may revise
Exhibit C from time to time upon delivery of
written notice to RESELLER at least one
hundred eighty (180) days prior to the
effective date of such revision. If LICENSOR
amends Exhibit C in such a manner whereby
previously authorized Equipment is no longer
authorized for use on LICENSOR's Paging
System, LICENSOR agrees at its sole cost and
expense to provide substitute authorized
Equipment in exchange for the previously
authorized Equipment then utilized by
RESELLER's Subscribers.
(b) All pagers previously sold by LICENSOR to
RESELLER are included in this Agreement, as
they all still work on this network.
CHANGE NUMBER 5
Exhibit D, GTE AFFILIATED ENTITIES attached hereto shall be added to the
Agreement.
CHANGE NUMBER 6
Exhibit E, REPORTS attached hereto shall be added to the Agreement and LICENSOR
agrees to provide such reports to RESELLER.
CHANGE NUMBER 7
The second line of Section 1. TERM shall be changed to read "thereafter until
October 31, 2000 unless terminated or modified by..."
CHANGE NUMBER 8
The following shall be added as Section 31.
31. SERVICE COMMITMENT
In the event a particular terminal or transmitter is inoperable
for a period of twenty-four (24) hours or more, and a RESELLER
Customer is not able to receive paging Services because of the
outage, LICENSOR agrees to credit RESELLER * period for each
affected pager, for a maximum of * hour periods in any one
month.
CHANGE NUMBER 9
Add the following to Section 6, LICENSOR RESPONSIBILITIES
2 CONFIDENTIAL
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 3
(d) LICENSOR agrees to provide the monthly reports
described in Exhibit E, attached hereto, to RESELLER.
(e) LICENSOR shall assume the role of system coordinator
for all RESELLER'S terminals. This includes
monitoring these terminals for alarms, notifying
RESELLER of alarms, scheduling routine maintenance,
software upgrades and hardware upgrades.
(f) LICENSOR is responsible for keeping RESELLER informed
of all necessary updates and maintenance to the
degree that it does not affect the RESELLER.
CHANGE NUMBER 10
Add the following to Section 7, RESELLER RESPONSIBILITIES
(g) RESELLER is responsible for updating the contact list
of people who LICENSOR is to contact if an alarm
occurs or routine maintenance is required or upgrades
become necessary.
(h) RESELLER is responsible for purchasing software,
hardware, and spare kits for each terminal owned by
RESELLER. RESELLER agrees to reimburse LICENSOR at
the rate of $100 per man hour (plus travel expenses)
for all software and hardware upgrades and other
maintenance that RESELLER approves LICENSOR to
perform on their behalf.
(i) RESELLER will handle emergency maintenance for
service affecting outages on a case by case basis.
CHANGE NUMBER 11
Add the following to Section 10. BILLING
(b) LICENSOR shall provide to RESELLER an overcalls
invoice by the 10th day of each month or RESELLER will
not be obligated to pay the overcall portion of that
invoice.
(c) LICENSOR shall provide to RESELLER a detailed billing
statement for airtime services charge by the 15th day
of each month or RESELLER will be allowed to deduct *
from that particular statement and an additional *
will be deducted each month thereafter until statement
is received.
(d) If the 15th day of the month falls on a weekend the
statement will be delivered to RESELLER by 12:00 noon
Central Standard Time on the next business day.
Except as specifically modified, amended or supplemented herein, all terms and
conditions of Resale Agreement Number 999999-93-12 and its Amendment One shall
remain in full force and effect between the parties.
3 CONFIDENTIAL
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT.
<PAGE> 4
<TABLE>
<CAPTION>
RESELLER LICENSOR
<S> <C>
GTE COMMUNICATION SYSTEMS PAGEMART INCORPORATED
CORPORATION
/s/ KEITH HENDERSHOT /s/ DOUGLAS S. GLEN
- --------------------------------------------- ---------------------------------------------------
(Signature of Authorized Agent) (Signature of Officer)
Keith Hendershot Douglas S. Glen
- --------------------------------------------- ---------------------------------------------------
(Printed Name of Officer) (Printed Name of Officer)
Acting Group Manager - Contract Management Executive Vice President
- --------------------------------------------- ---------------------------------------------------
(Title) (Title)
Date: 10-2-97 Date: 10-2-97
--------------------------------------- ---------------------------------------------
</TABLE>
APPROVED AS TO FORM AND LEGALITY
J.R. SEASTROM
----------------------------------
Attorney, GTE Telephone Operations
Date: 09-30-97
----------------------------
4 CONFIDENTIAL
<PAGE> 5
EXHIBIT A
PRICING DOCUMENT
PRICE DOCUMENT ADDENDUM "A"
PRINTED 09/17/97, REPLACES 08/17/97 FORMAT
EFFECTIVE 10/01/97
PREPARED FOR GTE
***CONFIDENTIAL***
[3.1] ADDITIONAL TEXT SERVICES
SERVICE RATE
- --------------------------------------------------------------------------------
Broadcast Services - Generic, for all subscribers $900.00 per month
[3.0] NEIGHBOR CITY/PICK-A-CITY OPTIONS
TYPE OF
CITIES COVERAGE
- -------------------------------------------------
Austin/San Antonio - Dallas Neighbor
Austin/San Antonio - Dallas Neighbor
Baltimore/Washington DC - Richmond Neighbor
Chicago - Indianapolis Neighbor
El Paso - Albuquerque Neighbor
Houston - Dallas Neighbor
Little Rock - Memphis Neighbor
Memphis - Nashville Neighbor
Nashville - Birmingham Neighbor
Nashville - Atlanta Neighbor
Indianapolis - Elkart Neighbor
Chattanooga - Birmingham Neighbor
Nashville - Louisville Neighbor
Nashville - Knoxville Neighbor
Indianapolis - South Bend Neighbor
Louisville - Somerset, KY Neighbor
PageMart shall have the right in its sole and absolute discretion, to change the
fees charged for Devices and/or Services at any time upon thirty (30) days prior
notice to Customer in the event PageMart deems such change necessary to comply
with applicable law or regulation, whether state or federal, or in the event
PageMart determines that a change in applicable law or regulation substantially
affects PageMart's operating costs.
<PAGE> 6
EXHIBIT A
PRICING DOCUMENT
PRINTED 09/17/97, REPLACES 03/17/97 FORMAT
EFFECTIVE 10/01/97
PREPARED FOR GTE
***CONFIDENTIAL***
[3.0] TEXT SERVICES
<TABLE>
<CAPTION>
PER MO, PER UNIT TEXT NETWORK NUMERIC NET. US 800 / US 800 / 888
COVERAGE FLEX NETWORK RATE OVERCALL LEVEL OVERCALL LEVEL 888 CHARGE OVERCALL LEVEL
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Local - Tier I $ ** >100 @ $ * >400 @ $ * $ * >200 @ $ *
Local - Tier II $ * >100 @ $ * >400 @ $ * $ * >200 @ $ *
Local - Tier III $ * >100 @ $ * >400 @ $ * $ * >200 @ $ *
Text Roaming
US only +$ * counts towards local coverage listed above
Text Roaming
Canada* +$ * counts towards local coverage listed above
Neighbor City US +$ * counts towards local coverage listed above
Pick-A-City US +$ * counts towards local coverage listed above
Pick-A-City Canada* +$ * counts towards local coverage listed above
Statewide $ * >50 @ $ * >400 @ $ * $ * >200 @ $ *
Region $ * >50 @ $ * >200 @ $ * $ * >200 @ $ *
Dual Region $ * >50 @ $ * >200 @ $ * $ * >200 @ $ *
Norpac $ * >50 @ $ * >400 @ $ * $ * >200 @ $ *
SF or LA plus
Las Vegas $ * >50 @ $ * >400 @ $ * $ * >200 @ $ *
California State
plus Las Vegas $ * >50 @ $ * >400 @ $ * $ * >200 @ $ *
Nationwide
Continental US $ * >50 @ $ * >200 @ $ * $ * >200 @ $ *
US plus Hawaii/AK $ * >50 @ $ * >200 @ $ * $ * >200 @ $ *
Canadian Nationwide* +$ * counts towards nationwide coverage listed above
</TABLE>
Notes:
(a) All packages include 100 characters per message unless otherwise
noted.
(b) Tier I (LA / San Diego), Tier II (Hawaii), Tier III (All areas not
Tier I or Tier II).
(c) "(pocsag rate)" -- not applicable for new subscribers.
(d) All rates apply for TNPP as well as non-TNPP unless otherwise noted.
(e) "*" Canadian options require equal level of US service and 929.6625
Mhz.
(f) All rates are per unit, per month unless noted otherwise.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 7
EXHIBIT A
PRICING DOCUMENT
PRINTED 09/17/97, REPLACES 03/17/97 FORMAT
EFFECTIVE 10/01/97
PREPARED FOR GTE
***CONFIDENTIAL***
[1.2] ADDITIONAL NUMERIC SERVICES
<TABLE>
<CAPTION>
SERVICE RATES PER MONTH
- ---------------------------------------------------------------------------------
<S> <C>
Generic Greeting no charge
Custom Greeting $ *
Numeric Retrieval $ *
Second DID (US) $ *
800/888 Canadian Access $ * (>200 calls, $ * per call)
VoiceMail
Small Talk (5 mes., 20 sec., 12 hour) $ *
Small Talk with US 800/888 $ *
Standard (15 mes., 30 sec., 24 hour) $ *
Standard with US 800/888 $ *
Executive (15 mes., 60 sec., 48 hour) $ *
Executive with US 800/888 $ *
VIP (15 mes., 120 sec., 48 hour) $ *
VIP with US 800/888 $ *
</TABLE>
PageMart shall have the right in its sole and absolute discretion, to change the
fees charged for Devices and/or Services at any time upon thirty (30) days prior
notice to Customer in the event PageMart deems such change necessary to comply
with applicable law or regulation, whether state or federal, or in the event
PageMart determines that a change in applicable law or regulation substantially
affects PageMart's operating costs.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT.
<PAGE> 8
EXHIBIT A
PRICING DOCUMENT
PRINTED 09/17/97, REPLACES 03/17/97 FORMAT
EFFECTIVE 10/01/97
PREPARED FOR GTE
***CONFIDENTIAL***
[1.0] NUMERIC SERVICES
<TABLE>
<CAPTION>
PER MO, PER UNIT NETWORK US 800/888 800/888
COVERAGE FLEX NETWORK RATE OVERCALL LEVEL CHARGE OVERCALL LEVEL
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Local $ * >400 @ $ * $ * >200 @ $ *
Local LA/SD $ * >400 @ $ * $ * >200 @ $ *
Numeric Roam
US only +$ * counts towards local coverage listed above
Numeric Roam
US plus Canada* +$ * counts towards local coverage listed above
Neighbor City US +$ * counts towards local coverage listed above
Pick-A-City US +$ * counts towards local coverage listed above
Pick-A-City Canada* +$ * counts towards local coverage listed above
Statewide $ * >400 @ $ * $ * >200 @ $ *
Region $ * >200 @ $ * $ * >200 @ $ *
Dual Region $ * >200 @ $ * $ * >200 @ $ *
Norpac $ * >400 @ $ * $ * >200 @ $ *
Seaboard Region $ * >400 @ $ * $ * >200 @ $ *
SF or LA plus
Las Vegas $ * >400 @ $ * $ * >200 @ $ *
California State
Plus Las Vegas $ * >400 @ $ * $ * >200 @ $ *
Nationwide
Continental US $ * >200 @ $ * $ * >200 @ $ *
US plus Hawaii/AK $ * >200 @ $ * $ * >200 @ $ *
Canadian Nationwide* +$ * counts towards nationwide coverage listed above
</TABLE>
Notes:
(a) "(pocsag rate)"--not applicable for new subscribers.
(b) All rates apply for TNPP as well as non-TNPP unless noted otherwise.
(c) "*" Canadian options require equal level of US service and 929.6625
MHz.
(d) Numeric Roaming services include numeric retrieval.
(e) All rates are per unit per month unless noted otherwise.
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT.
<PAGE> 9
EXHIBIT B
DISCOUNTS/CREDITS
PageMart desires to offer the following commitments, both short and long term,
to GTE Paging in an effort to restart sales momentum.
The following commitments represent a bottom line contribution of *
1. MARKET DEVELOPMENT FUNDS (DISCOUNTS) - Credit issued on the preceding
month's ending units in service by category. The purpose of MDF support
funds is the promotion and growth of PageMart frequency sales. GTE has
discretion on how to best utilize these credits for the above purpose. Proof
of performance requested.
Rate for Existing Accounts: $* credit per month per pager for local numeric
service and $* credit per month per pager for local alpha numeric services.
Term: September 1 through March 31, 1998 (seven months of credits).
Rate for Net Additional Accounts: $* credit per month per pager for local
numeric service and $* credit per month per pager for local alpha numeric
services. Term: September 1 through March 31, 1998 (seven months of
credits).
Estimated minimum seven month contribution: $*.
These credits are in addition to the other marketing promotional projects
that we are committed to support. For example bundled package discounts and
specific sales channel promotions;
2. ALPHA NUMERIC LOCAL TEXT MESSAGE COUNT INCREASED from 50 to 100 text
messages effective October 1, 1997.
3. EXTEND 800/888 OVERALL DISCOUNT RATE OF $* PER CALL through March 31, 1998.
Estimated minimum seven month contribution: *.
4. The credit towards a pocsag price reduction (from $* to $*, will FUND * up
TO $* OF THIRD PARTY HOST-TO-HOST DEVELOPMENT COSTS (or other alternatives
such as direct to terminal connection). This project could not only save
between 35,000 to 60,000 double data entry efforts performed to synchronize
PBMS with PRIME, but greatly improve the speed and reliability of
efficiency of operations.
The $* pocsag price reduction will take effect October 1, 1997.
5. Provide ON-LINE ACCESS to the PageMart network operations trouble ticket
system, with access to all open trouble tickets, before September 15, 1997.
6. Establish a NETWORK OPERATIONS QUALITY REVIEW COMMITTEE that will include
GTE's and PageMart's management teams. This committee will develop and
implement a process to enhance service levels for network maintenance and
reliability and improve communications for all paging network operational
issues. PageMart and GTE will work together to implement processes and
procedures
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
B-1 CONFIDENTIAL
<PAGE> 10
which reduce the turn-around time on open trouble tickets by 75%. Initial
meeting to be schedule before September 1, 1997. An agreement on what
process to implement will be agreed to by the members of the committee by
October 15, 1997, and implementation will begin by October 31, 1997.
7. PageMart agrees that due to the network modifications made this year that
coverage has been affected at GTE Place. PageMart agrees to install a
transmitter and other equipment REQUIRED TO CORRECT THE affected coverage
at GTE Place.
8. PageMart agrees to offer custom bundled packages at a reduced price for all
GTE Paging channels, as requested by Product Management.
9. PageMart agrees to Re-Freq. all GTED's and GTE Directories pagers to work
on Frequency #2 in order to expedite a resolution for GTED's and GTE
Directories paging delay issues. This is CONDITIONAL upon acceptance of
this offer by GTE Paging. If GTE Paging wishes to upgrade the GTED's and/or
GTE Directories pagers to the new Advisor Elite pagers, PageMart agrees to
offer a credit equal to the cost of re-freqing the pagers toward the
purchase of the new units not to exceed $10 per pager.
B-2 CONFIDENTIAL
<PAGE> 11
EXHIBIT C
AUTHORIZED EQUIPMENT
EFFECTIVE 10/01/97
PREPARED FOR GTE
***CONFIDENTIAL***
[5.0] EQUIPMENT
<TABLE>
<CAPTION>
PRODUCT NAME COST PER UNIT
- -----------------------------------------------
<S> <C>
Motorola Pronto - Flex $ *
Motorola Bravo - Flex $ *
Motorola Ultra Express - Flex $ *
Uniden FX 9400 $ *
Uniden FLX 9050 $ *
Motorola Wordline $ *
Motorola Advisor Gold $ *
</TABLE>
Equipment Notes:
(a) Prices include freight charges for standard UPS shipment in the
continental US based on bulk shipments of more than 50 units.
(b) Pagers do not have face labels unless noted otherwise.
(c) Batteries are included.
(d) Product has a 90 day manufacturer warranty.
(e) Shipments/prices are based on availability.
(f) All rates are per unit, per month unless noted otherwise.
* CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT.
<PAGE> 12
EXHIBIT D
GTE AFFILIATED ENTITIES
TELEPHONE OPERATING COMPANIES
- -----------------------------
GTE Alaska Incorporated
GTE Arkansas Incorporated
GTE California Incorporated
GTE Florida Incorporated
GTE Communications Corporation
GTE Funding Incorporated
GTE Hawaiian Telephone Company Incorporated
GTE Hawaiian Tel Insurance Company Incorporated
GTE Hawaiian Tel International Incorporated
The Micronesian Telecommunications Corporation
GTE Pacifica Incorporated
GTE Midwest Incorporated
GTE North Incorporated
GTW Northwest Systems Incorporated
GTE Northwest Incorporated
Gte West Coast Incorporated
GTE South Incorporated
GTE Southwest Incorporated
Contel of California, Inc.
Contel Advanced Systems, Inc.
Contel of Minnesota, Inc. d/b/a GTE Minnesota
Contel of the South, Inc. d/b/a GTE Systems of the South
Contel Service Corporation
Continental Telephone Business Systems, Inc.
GTE Anglo Holding Company Incorporated
La Compagnie de Telephone Anglo-Canadienne/Anglo-Canadian Telephone Company
BC TELECOM Inc.
Quebec-Telephone
GTE London Limited (England)
GTE Holdings (Canada) Limited
Compania Dominicana de Telefonos, C. por A. (Codetel)
GTE International Telephone Incorporated
Codetel Computer Graphics Holdings B.V. (Netherlands)
Informatica y Telecommunicaciones, C. por A. (Dominican Republic)
GTE International Telecommunications Incorporated
GTE do Brasil Limitada
GTE PCS International Incorporated
GTE Venezuela Incorporated
D-1 CONFIDENTIAL
<PAGE> 13
EXHIBIT D
GTE AFFILIATED ENTITIES
VenWorld Telecom, C.A. (Venezuela)
GTE Investments Incorporated
GTE Customer Networks, Inc.
GTE Data Services Incorporated
GTE Data Services Holdings Mexico, S. de R.L. de C.V.
GTE Data Services-Mexico, S.A. de C.V.
GTEDS Data Services-Mexico, S.A. de C.V.
GTE Data Services International Incorporated
GTE Intelligent Network Services Incorporated
GTE Main Street Incorporated
GTE Media Ventures Incorporated
T.L. Robak, Inc.
Apollo Cablevision, Inc.
ContelVision, Inc.
GTE Vantage Incorporated
GTE Information Services Incorporated
GTE Card Services Incorporated
D-2 CONFIDENTIAL
<PAGE> 14
EXHIBIT E
NETWORK REPORTS
Sample Format
- --------------------------------------------------------------------------------
Dial up modems for alpha service.
Quantity Ports Available: 24
<TABLE>
<CAPTION>
Sun Mon Tues Wed Thurs Fri Sat
<S> <C> <C> <C> <C> <C> <C> <C>
Busy Hour 12pm 5pm 5pm 11am 5pm 5pm 9am
Max ports
in use 5 12 12 13 12 17 8
</TABLE>
- --------------------------------------------------------------------------------
Trunking Busy Hour
Terminal Name: Anytown, USA
Trunks Available: 24
<TABLE>
<CAPTION>
Sun Mon Tues Wed Thurs Fri Sat
<S> <C> <C> <C> <C> <C> <C> <C>
Busy Hour 5pm 6pm 11pm 5am 5pm 6pm 10am
Max Trunks
in Use 7 20 19 18 18 24 10
</TABLE>
- --------------------------------------------------------------------------------
Internet Gateway Traffic Stats
<TABLE>
<CAPTION>
Sun Mon Tues Wed Thurs Fri Sat
<S> <C> <C> <C> <C> <C> <C> <C>
Busy Hour 9am 10am 11am 3pm 5pm 6pm 2pm
Capacity
% Usage 4% 40% 35% 50% 55% 95% 10%
</TABLE>
- --------------------------------------------------------------------------------
Terminal Busy Hour
Terminal Name: Neighborville, USA
<TABLE>
<CAPTION>
Sun Mon Tues Wed Thurs Fri Sat
<S> <C> <C> <C> <C> <C> <C> <C>
Busy Hour 5pm 6pm 11am 5pm 5pm 6pm 10am
CPU %
Usage 45% 55% 63% 44% 50% 75% 30%
</TABLE>
- --------------------------------------------------------------------------------
E-1 CONFIDENTIAL
<PAGE> 15
NETWORK REPORTS
Page 2
Sample Format
- --------------------------------------------------------------------------------
Transmitter Outages (over 2 hours)
Average recovery time (by week)
Detail on Exceptions - Transmitters out for more than 4 hours
Terminal Outages (over 1 minute)
Recovery time - time & date
Detail on all outages
- --------------------------------------------------------------------------------
Repeat trouble
Terminals that have same trouble within one week.
Transmitters that have same trouble within one week.
- --------------------------------------------------------------------------------
Activation System Access
Ports Available: 12
----
<TABLE>
<CAPTION>
Sun Mon Tues Wed Thurs Fri Sat
<S> <C> <C> <C> <C> <C> <C> <C>
Busy hour 2pm 4pm 3pm 3pm 7pm 8pm 1pm
Max ports
in use 5 7 6 8 9 12 11
Average Activation
Time required per
unit (in seconds) 60 75 90 90 105 120 45
</TABLE>
E-2 CONFIDENTIAL
<PAGE> 1
EXHIBIT 10.25
RESALE AGREEMENT
BETWEEN
GTE MOBILNET SERVICE CORP.
AND
PAGEMART, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. TERM 1
2. DEFINITIONS 1
3. LICENSE 2
4. INDEPENDENT PARTIES 2
5. SCOPE 2
6. LICENSOR RESPONSIBILITIES 3
7. RESELLER RESPONSIBILITIES 3
8. PUBLIC REGULATION 4
9. PRICING 4
10. BILLING 5
11. TERMS OF PAYMENT 5
12. SPECIAL PROGRAMS 5
13. PRECEDENCE OF DOCUMENTS 6
14. USE OF CONFIDENTIAL INFORMATION 6
15. PUBLICITY 7
16. COMPLIANCE WITH LAWS 7
17. FORCE MAJEURE 7
18. LIABILITY 8
19. ASSIGNMENT 9
20. TAXES 10
21. RECORDS 10
22. RIGHT OF ACCESS 10
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
23. TERMINATION 11
24. DISPUTE RESOLUTION 12
25. NOTICES 13
26. NONWAIVER 14
27. SEVERABILITY 14
28. SECTION HEADINGS 14
29. SURVIVAL OF OBLIGATIONS 14
30. CHOICE OF LAW 14
31. ENTIRE AGREEMENT 14
</TABLE>
ii
<PAGE> 4
RESALE AGREEMENT
This Agreement is made as of the first day of July 1996, by and between
PageMart, Inc., a Delaware corporation, with offices for the purpose of this
Agreement located at 6688 North Central Expressway, Suite 800, Dallas, Texas
75206 (hereinafter referred to individually or collectively as "LICENSOR") and
GTE Mobilnet Service Corp., a New York corporation with offices located at 245
Perimeter Center Parkway, Atlanta, GA 30346 (hereinafter referred to as
"RESELLER").
WHEREAS, LICENSOR provides paging, voice messaging, and related messaging
services (hereinafter referred to as "SERVICES"); and
WHEREAS, RESELLER desires to contract with LICENSOR to resell such SERVICES and,
in connection therewith, to receive blocks of Personal Identification Numbers
(hereinafter referred to as "PINs") and Direct Inward Dialing numbers
(hereinafter referred to as "DIDs") that provide individual access to LICENSOR's
system and SERVICES for resale to members of the general public;
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. TERM
This Agreement shall be effective on July 1, 1996 and shall continue in
effect thereafter until October 30, 1996 unless terminated or modified by
either party in accordance with the provisions of this Agreement.
Thereafter, this Agreement shall be automatically be renewed for
consecutive 12 month periods unless terminated by RESELLER by written
notice to LICENSOR not less than thirty (30) days prior to the expiration
date. At the end of each twelve (12) month period either party shall have
the option to review Agreement terms and adjust such terms as are mutually
agreed upon by the parties.
2. DEFINITIONS
(a) CAP Code - The numeric code that identifies and is unique to each
pager placed in service on LICENSOR's Paging System
(b) DID - A local telephone number assigned by LICENSOR to identify a
specific pager on the LICENSOR's network. By dialing the DID, the
respective pager is activated.
(c) Equipment - Pagers and related message receiving devices.
(d) GTE Tel Ops - GTE Telephone Operations Group.
<PAGE> 5
(e) Paging Terminal - A paging central office switch that processes paging
calls.
(f) Paging System - A telecommunications network that provides paging and
related messaging services throughout a specific geographic area.
(g) PIN - Personal Identification Number. A specific number assigned by
LICENSOR to identify a pager on the LICENSOR's network. By entering
their PIN into LICENSOR's computer vial a touch-tone telephone, the
respective pager is activated.
(h) Subscriber - A person or entity that is the end user of the LICENSOR's
Paging System.
(i) Telephone Interconnect Charges - Those charges directly associated
with acquiring direct dial paging telephone numbers from the local
exchange carrier.
3. LICENSE
(a) LICENSOR grants RESELLER a non-exclusive license to resell LICENSOR's
SERVICES subject to the rules, regulations and decisions of the
Federal Communications Commission (hereinafter referred to as "the
FCC").
(b) RESELLER may, upon receipt of LICENSOR's prior written approval, be
authorized by LICENSOR to license its own sub-agents or affiliates for
the marketing, promotion and resale of LICENSOR's SERVICES, provided
that RESELLER shall be responsible for the observance by its
sub-agents, affiliates, or sub-licensees of the terms and conditions
of the Agreement.
4. INDEPENDENT PARTIES
Each party is an independent contractor. Except as provided in this
Agreement, neither party shall have the right, power or authority to act or
to create any obligation, express or implied, on behalf of the other party.
All sales by RESELLER shall be in its own name and for its own account
5. SCOPE
(a) This Agreement is non-exclusive and RESELLER is under no obligation to
LICENSOR to resell any certain amount of SERVICES.
(b) LICENSOR hereby agrees to provide SERVICES in an efficient, economic
and timely fashion in accordance with generally accepted commercial
and business practices.
2
<PAGE> 6
6. LICENSOR RESPONSIBILITIES
(a) LICENSOR shall provide RESELLER's Subscribers with access to its
Paging System and shall use its good faith efforts to provide
continuous network service in the geographical locations where
LICENSOR is legally authorized and has the facilities to provide
SERVICES.
(b) The SERVICES provided by LICENSOR shall include but not be limited to:
(1) Numeric display - as long as there is frequency space available,
unlimited numeric display paging; and
(2) Alpha-numeric - as long as there is frequency space available,
unlimited alpha-numeric paging.
(c) LICENSOR shall assign and coordinate all telephone and CAP code
numbers in order to ensure the compatible initiation of SERVICES to
Subscribers placed on LICENSOR's Paging System.
7. RESELLER RESPONSIBILITIES
(a) RESELLER shall promote, solicit, market and take all reasonable
actions, in the exercise of due diligence and good faith, to secure
Subscribers for LICENSOR's Paging System.
(b) RESELLER shall be solely responsible for providing all sales,
Equipment and customer support services to its Subscribers. RESELLER
further agrees that all EQUIPMENT provided to its Subscribers shall be
compatible with the existing transmission system of LICENSOR.
(c) RESELLER shall be solely responsible for all billings to and
collections from its Subscribers, including but not limited to the
sending of monthly bills, collection of amounts owed or past due, and
the collection and return of all applicable taxes on such SERVICES or
Equipment rentals.
(d) RESELLER shall provide and mail all announcements or notices required
to be mailed to its Subscribers as required by any regulatory agency.
(e) RESELLER shall assign CAP codes, DIDs and PINs to its Subscribers only
from the group of CAP codes, DIDs and PINs assigned to RESELLER by
LICENSOR. RESELLER shall ensure that a given CAP code, DID or PIN is
not assigned to more that one pager, provided that LICENSOR has not
given RESELLER duplicate CAP codes, DIDs or PINs, which were then
assigned in violation of this provision without the fault or knowledge
of RESELLER.
3
<PAGE> 7
(f) RESELLER shall maintain and keep in good working order all
Equipment leased by RESELLER to its Subscribers pursuant to
the terms of this Agreement, in accordance with all
manufacturer's specifications and the provisions of the filed
tariffs of LICENSOR.
8. PUBLIC REGULATION
(a) It is understood that the ultimate control and responsibility
for the standard and quality of SERVICES required under the
provisions of and license issued by the FCC to LICENSOR shall
be retained, rest and remain the prerogative and obligation
solely of LICENSOR. No provision of this Agreement shall be
construed as vesting in RESELLER any control whatsoever of the
radio communication facilities and operations of LICENSOR.
(b) This Agreement is subject to all of the terms and conditions
of LICENSOR's outstanding authorizations from the FCC and the
utility regulatory agencies in the states to which this
Agreement pertains, as such tariffs and authorizations are
presently in effect or as they may hereafter be revised.
Nothing in this Agreement shall be construed so as to impair
or diminish LICENSOR's control over the facilities of the
applicable stations.
(c) This Agreement shall be subject to the approval of the FCC and
the local state regulatory agency, if such approval shall be
required.
(d) This Agreement shall be terminated, amended, revised, or
supplemented immediately if required by the FCC or the local
state regulatory agency.
(e) The imposition by the FCC or local state regulatory agency of
any amendments, revisions, deletions or supplements to this
Agreement shall thereby relieve LICENSOR and RESELLER of any
obligations or liabilities to the other resulting from the
provisions of this Agreement which were ordered amended,
revised, deleted or supplemented.
9. PRICING
(a) RESELLER hereby agrees to pay LICENSOR the charges and fees
for SERVICES specified in Exhibit A in accordance with the
terms and conditions contained herein.
(b) The charges and fees specified in Exhibit A shall commence at
the time RESELLER activates each particular number in
LICENSOR's Paging System. Such charges shall continue for each
number for a minimum of thirty (30) days, and thereafter until
the number in questions is canceled
4
<PAGE> 8
or otherwise disconnected in accordance with the provisions herein.
When a number is activated in the middle of a month, the applicable
rate will be prorated to the first of the following month so that all
subsequent bills will be tendered thereafter on a monthly basis.
(c) Price decreases arising during the term of this Agreement shall be
immediately passed on to RESELLER and shall be in effect for all
current and new Subscriber units.
(d) LICENSOR warrants and represents that the prices for SERVICES
hereunder are no less favorable than those currently extended to any
other similarly situated National RESELLER of LICENSOR of the same or
like classification as RESELLER for the same volume/minimum commitment
levels achieved by RESELLER for the same or like SERVICES.
(e) Where allowable by the state regulating authority, the prices charged
by RESELLER to its Subscribers for all SERVICES shall be determined
solely by RESELLER. In states where tariff rates are required,
RESELLER may operate under its own tariff or the tariff of LICENSOR.
10. BILLING
LICENSOR shall provide RESELLER with a hard copy statement each month which
identifies the number of DIDs or PINs billed at the applicable rates. At
the reasonable request of RESELLER, LICENSOR shall also provide monthly
billing in an electronic format.
11. TERMS OF PAYMENT
Payment shall be due thirty (30) days after the date or the receipt of
LICENSOR's invoice, whichever is later.
12. SPECIAL PROGRAMS
Concurrently herewith, LICENSOR and RESELLER are entering into (i) a
Representation Agreement, and (ii) a Trial Lease Program substantially in
the forms attached hereto as Exhibit B and Exhibit C, respectively, and
incorporated herein for all purposes. The Representation Agreement provides
for compensation to RESELLER for the promotion of LICENSOR Products and
SERVICES (as such terms are defined in the Representation Agreement). The
Trial Lease Program provides for the lease to RESELLER of Products (as
defined in the Trial Lease Program) from LICENSOR and the subsequent lease
by RESELLER of such Products to RESELLER's Subscribers.
5
<PAGE> 9
13. PRECEDENCE OF DOCUMENTS
All orders for SERVICES placed during the term hereof shall be subject to
and governed by the provisions contained herein. The terms and conditions
of this Agreement shall control over any conflicting or inconsistent terms
contained in any order placed with LICENSOR by RESELLER. Notwithstanding
the foregoing, as to the subject matter there of the terms and conditions
of the Representation Agreement or Trial Lease Program, as the case may be,
shall control over any conflicting or inconsistent terms and conditions
contained in this Agreement.
14. USE OF CONFIDENTIAL INFORMATION
(a) Any specifications, drawings, sketches, models, samples, tools,
computer programs, technical information, or confidential business
information or data furnished by the parties to one another hereunder,
if in writing and clearly marked as "confidential" at the time of
disclosure, or if oral and designated as confidential at the time of
disclosure as well as summarized in writing indicating the
confidential nature of the same within twenty (20) days of disclosure
(hereinafter called "Confidential Information") shall remain the
property of the supplier of such Information. All copies so such
Confidential Information in written, graphic or other tangible form
shall be returned to the supplier upon request.
(b) For the purposes of this Agreement, Confidential Information shall not
include any information that:
(1) was previously known to the recipient;
(2) is subsequently received by the recipient free from any
obligation to keep it confidential;
(3) is independently developed by the receiving party; or
(4) was or is subsequently made public by the supplier or a third
party, without breach of any obligation of confidentiality.
All Confidential Information shall be treated as confidential and not
disclosed by the recipient, and shall be used by the recipient only in
connection with fulfilling the obligations of the recipient that arise
pursuant to this Agreement, unless the prior written consent of the
supplier is obtained. Confidential Information shall only be distributed to
those employees who have a need to know.
(c) Each party shall treat the other's Confidential Information in
accordance with a standard of care reasonably calculated to prevent
inadvertent or
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accidental disclosure. Nothing herein shall be construed as waiving
the right of any party to require the other party to execute a
written non-disclosure agreement, containing reasonable additional
terms and conditions, prior to the supplying of particular
Confidential Information from time to time.
15. PUBLICITY
The parties agree to submit to one another for written approval all
advertising, sales promotion, press releases and other publicity matters
relating to the SERVICES furnished or the SERVICES performed by them
pursuant to this Agreement whereby their respective names or marks are
mentioned or language from which the connection of said names or marks
therewith may be inferred or implied, and the parties further agree not to
publish or use such advertising, sales promotions, press releases, or
publicity matters without such prior written approval. Such approval shall
not be unreasonably withheld or delayed by either party.
16. COMPLIANCE WITH LAWS
The parties hereto shall comply with the provisions of all applicable
federal, state, county and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in their
respective performance hereunder, including, but not limited to, the
standards promulgated under the Occupational Safety and Health Act,
Executive Order 11246, as amended, relative to Equal Employment
Opportunity, Section 503 of the Vocational Rehabilitation Act of 1973, as
amended, and Section 402 of the Vietnam Era Veterans Readjustment
Assistance Act of 1974 and all applicable laws, orders and regulations
concerning immigrants and non-discrimination in the employment of
minorities, females, veterans and the handicapped. Each party hereby agrees
to indemnify the other party, and defend the same against, any claims, loss
or damage sustained because of its noncompliance hereunder.
17. FORCE MAJEURE
Neither LICENSOR nor RESELLER shall be responsible for any delay or failure
in performance of any part of this Agreement to the extent that such
delay or failure is caused by event beyond its control, which may include,
but not be limited to, fire, flood, explosion, war strike, embargo,
government requirement, civil or military authority, and acts of God
("Condition(s)"). If any such Condition(s) occurs, the party delayed or
unable to perform shall promptly give notice to the other party and, if
such Condition(s) remains at the end of thirty (30) days thereafter, the
party affected by the other's delay or inability to perform may elect to
terminate or suspend this Agreement or part thereof, and resume performance
of this Agreement once the Condition(s) ceases, with an option in
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the affected party to extend the period of this Agreement up to the length
of time the Condition(s) endured.
18. LIABILITY
(a) Notwithstanding anything to the contrary herein, each party shall
indemnify and save harmless the other from any loss or damages
(including reasonable attorney's fees) incurred by the other because
of claims, suits, or demands based on personal injury or death or
property damage or third party claims, suits or demands of any kind,
to the extent such loss or damage is caused by or results from the
negligent or willful acts or omissions of the other or its employees
or agents. The indemnifying party shall receive the full opportunity
and authority to assume the sole defense of and settlement of such
suits. The indemnified party agrees to furnish to the indemnifying
party upon request all information and reasonable assistance available
to the indemnified party for defense against any such suit, claim, or
demand.
(b) LICENSOR makes no warranty, either express or implied concerning its
facilities, products, or SERVICES, including, without limitation,
warranties of merchantability or fitness for a particular purpose.
RESELLER acknowledges that service interruptions in the
telecommunications industry frequently are due to circumstances beyond
a carrier's control and are difficult to assess as to cause or
resulting damages. The parties agree that LICENSOR shall not be liable
beyond the actual and direct loss arising out of any mistakes,
omissions, interruptions, delays, errors, or defects in transmission
of pages on LICENSOR's Paging System. However LICENSOR's liability
shall in no event exceed an amount equivalent to the proportionate
charge to RESELLER for the period of the disruption of SERVICES or the
amount of five hundred dollars ($500), whichever is less. LICENSOR
shall not be liable for any act or omission of any other entity
furnishing SERVICES to RESELLER. Neither party shall be liable for any
special, incidental or other consequential damage or losses, including
without limitation lost profits, or for loss of stored, transmitted or
recorded data, even if it has been advised of the possibility of such
damages, nor shall either party be liable for any such damages due to
the fault or negligence of the other party or its employees, agents,
or representatives.
(c) All work performed under this Agreement by any party shall be
performed as an independent contractor and not as an agent of any
other party. Persons furnished by the respective parties shall be
solely the employees or agents of such parties, respectively, and
shall be under the sole and exclusive direction of such parties. They
shall not be considered employees of the other party for any purpose.
Each party shall be
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responsible for compliance with all laws, rules and
regulations involving their respective employees or agents,
including (but not limited to) employment of labor, hours of
labor, health and safety, working conditions and payment of
wages. Each party shall also be responsible, respectively,
for payment of taxes, including federal, state, and municipal
taxes, chargeable or assessed with respect to its employees or
agents, such as social security, unemployment, workers'
compensation, disability insurance and federal and state
income tax withholding.
(d) RESELLER and LICENSOR each agree to maintain during the term
hereof all insurance and/or bonds required by law or this
Agreement, including, but limited to (1) Workers' Compensation
and related insurance as prescribed by applicable law; (2)
employer's liability insurance with limits of at least $100,000
for each occurrence, and (3) comprehensive general liability
insurance including products liability, and, if the use of
motor vehicles is required, comprehensive motor vehicle
liability insurance, each with limits of at least $500,000 for
combined single limit for bodily injury, including death,
and/or property damage. RESELLER and LICENSOR each shall cause
the other to be included as an Additional Insured under their
respective policies and RESELLER's and LICENSOR's appropriate
coverage under such policies shall be primary. RESELLER and
LICENSOR each shall furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that
no material change or cancellation of any such policy shall be
effective unless thirty (30) days advanced written notice is
given to the party named as an Additional Insured.
Notwithstanding the above, LICENSOR and RESELLER shall each
have the option, where permitted by law, to self-insure any or
all of the foregoing risks.
19. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and
obligations of the parties hereunder shall neither be assigned
nor delegated without prior written consent of the other
party, provided that any party may assign or delegate their
respective rights and obligations hereunder, in whole or in
part, to any parent, subsidiary or affiliate of RESELLER or
LICENSOR that was such a parent, subsidiary or affiliate at
the time of execution of this Agreement upon prior written
notice to the other. Such assignment shall not diminish any
rights or duties that LICENSOR or RESELLER may have had prior
to the effective date of assignment.
(b) The limitation on assignment does not apply to an assignment
confined solely to monies due or to become due under this
Agreement, provided RESELLER or LICENSOR is given thirty (30)
days prior written notice of such assignment. An assignment of
monies shall be void to the extent
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that it attempts to impose upon RESELLER or LICENSOR obligations to
the assignee in addition to the payment of such monies, or to preclude
RESELLER or LICENSOR from dealing solely and directly with the other
in all matters pertaining hereto, including negotiation of amendments
or settlement of amounts due. If RESELLER or LICENSOR makes such an
assignment, it is and shall remain responsible for payment hereunder.
20. TAXES
RESELLER shall be liable for and shall reimburse LICENSOR for actual
payments of any Retailers' Excise Taxes, state and local sales and use
taxes, or any similar taxes as applicable, with respect to transactions
under this Agreement. Taxes payable by RESELLER shall be separately stated
in LICENSOR'S invoices and shall not be included in LICENSOR's prices.
RESELLER shall not be liable for any tax for which a valid exemption
certificate acceptable to the applicable state or local taxing authorities
is furnished by RESELLER to LICENSOR.
21. RECORDS
(a) LICENSOR shall maintain complete and accurate records of all amounts
billable to and payments made by RESELLER hereunder, in accordance
with generally accepted accounting practices. LICENSOR shall retain
such records for a period of three (3) years from the date of
rendering of SERVICES covered by this Agreement. LICENSOR agrees to
provide supporting documentation concerning any disputed amount of
invoice to RESELLER within thirty (30) days after RESELLER provides
written notification of the dispute to LICENSOR. LICENSOR shall retain
such records for three (3) years from date of invoice.
(b) RESELLER's original Subscriber records shall be and remain the
property of RESELLER. LICENSOR shall be entitled at LICENSOR's expense
during normal business hours to make copies of such records directly
relating to information verifying the number of Subscribers or
compliance by RESELLER to the terms of this Agreement.
22. RIGHT OF ACCESS
LICENSOR and RESELLER shall each permit reasonable access during normal
working hours to its facilities in connection with work hereunder. No
charge shall be made for such visits. It is agreed that reasonable prior
notification shall be given when access is required.
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23. TERMINATION
(a) RESELLER may terminate this Agreement without cause, effective
immediately, upon written notice to LICENSOR in the event RESELLER's
resale activities are combined with the resale activities of GTE Tel
Ops under the Resale Agreement between GTE Tel Ops and LICENSOR dated
November 1, 1993 (Resale Combination). In the event of a Resale
Combination, all of RESELLER's subscribers will be transferred to the
account of GTE Tel Ops and the terms and conditions provided in the
Resale Agreement dated November 1, 1993 shall thereafter govern.
Termination shall not affect any order placed prior to the date of
termination.
(b) Either party may terminate this Agreement, effective immediately,
without liability for said termination, upon written notice to the
other party, if any of the following events occur:
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the other under a
federal reorganization act;
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes and assignment of its assets for the benefits of
its creditors, except as required in the ordinary course of
business;
(7) The identity of the other's business is materially changed by
sale of its business, transfer of control of its outstanding
stock, merger or otherwise.
(c) Either party may immediately terminate this Agreement for a material
breach or default of any of the terms, conditions or covenants of this
Agreement by the other, provided that such termination may be made
only following the expiration of a thirty (30) day period during which
the other party has failed to cure such breach after having been given
written notice of such breach.
(d) In the event of a material breach of default by LICENSOR, provided
that LICENSOR has failed to cure the same within thirty (30) days of
its
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receipt of RESELLER's written notice of default, or if said default
cannot be cured within a thirty (30) day period,' LICENSOR has failed
to commence and diligently pursue curing such a default, RESELLER
shall be under no obligation to continue to provide LICENSOR's
SERVICES to its Subscribers, and RESELLER shall have the right to
assign those Subscribers to another paging service.
24. DISPUTE RESOLUTION
(a) The parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or injunction related to the purposes of this
Agreement, or suit to compel compliance with this dispute resolution
process, the parties agree to use the following alternative dispute
resolution procedure as their sole remedy with respect to any
controversy or claim arising out of or relating to this Agreement or
its breach.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this Agreement. The
parties intend that these negotiations be conducted by non-lawyer,
business representatives. The discussions shall be left to the
discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential
information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in the
arbitration described below or in any lawsuit without the concurrence
of all parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible,
be admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the dispute within sixty (60) days
of the initial written request, the dispute shall be submitted to
binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A party may
demand such arbitration in accordance with the procedures set out in
those rules. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set out in this Section. Each party may
submit in writing to a party, and that party shall so respond, to a
maximum of any combination of thirty-five (35) (none of which may have
subparts) of the following: interrogatories, demands to produce
documents and requests for admission. Each party is also entitled to
take the oral deposition of one (1) individual of another
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party. Additional discovery may be permitted upon mutual agreement
of the parties. The arbitration hearing shall be commenced with sixty
(60) days of the demand for arbitration and the arbitration shall be
held in Dallas, Texas. The arbitrator shall control the scheduling so
as to process the matter expeditiously. The parties may submit written
briefs. The arbitrator shall rule on the dispute by issuing a written
opinion within thirty (30) days after the close of hearings. The times
specified in this Section may be extended upon mutual agreement of the
parties or by the arbitrator upon a showing of good cause. Judgment
upon the award rendered by the arbitrator may be entered in any court
having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of
production of the documents (to include search time and reproduction
time costs). The parties shall equally share the fees of the
arbitration and the arbitrator.
25. NOTICES
Any notice or demand given under the terms of this Agreement or pursuant to
statute shall be in writing and shall be given or made by telegram,
facsimile transmission, certified or registered mail, express mail or other
overnight delivery service or hand delivery, proper postage or other
charges paid and addressed or directed to the respective parties as
follows:
To RESELLER:
GTE Mobilnet Corp.
245 Perimeter Center Parkway
Atlanta, GA 30346
Attention: Director-Vertical Services
To LICENSOR:
PageMart
6688 North Central Expressway
Suite 800
Dallas, Texas 75206
Attention: Vice President-Division General Manager
Such notice or demand shall be deemed to have been given or made when
actually received or seventy-two (72) hours after being sent, whichever
occurs first.
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The address for notice set out above may be changed at any time by giving
thirty (30) days prior written notice in the manner above.
26. NONWAIVER
Either party's failure to enforce any of the provisions of this Agreement
and/or any purchase order, or to exercise any option hereunder, shall in no
way construed as a waiver of such provisions, rights, or options, or in any
way be deemed to affect the validity of this Agreement or any purchase
order.
27. SEVERABILITY
Should any part of this Agreement for any reason be declared invalid by
order of any court or regulatory agency, such order shall not affect the
validity of any remaining portion, which shall remain in force and effect
as if this Agreement had been executed with the invalid portion eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remain portion of this Agreement without including therein any
such part or portion which may, for any reason be hereafter declared
invalid.
28. SECTION HEADINGS
The headings of the sections herein are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement.
29. SURVIVAL OF OBLIGATIONS
The respective obligations of LICENSOR and RESELLER under this Agreement
which by their nature would continue beyond the termination, cancellation
or expiration hereof, shall survive termination, cancellation or expiration
hereof.
30. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by and construed in accordance with the domestic laws of the state
of Delaware.
31. ENTIRE AGREEMENT
This Agreement and the exhibits hereto constitute the entire agreement
between LICENSOR and RESELLER. No modifications shall be made this
Agreement unless in writing and signed by appropriate representatives of
the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized corporate representatives.
PAGEMART, INC. GTE MOBILNET SERVICE CORP.
By: /s/ DOUG GLEN By: /s/ TERRY LEWIS
------------------------- ------------------------------------
Name: Doug Glen Name: Terry Lewis
Title: Vice President, Title: Vice President,
Strategic Alliances Product Management
Attested By: /s/ M.C. HOPPE
---------------------------------------
Name: M. C. Hoppe
----------------------------------
Vice President
Title: Finance & Information Management
----------------------------------
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