-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Gf2sOVYIb04FdNDddBz3ujvLqF3UC9MaR6uaPtifsf0Fc3M/UrXuW1/8JU7eQviw G6fej7AnlrdhtJ43NLzinA== 0000950134-99-001347.txt : 19990301 0000950134-99-001347.hdr.sgml : 19990301 ACCESSION NUMBER: 0000950134-99-001347 CONFORMED SUBMISSION TYPE: 10-K405/A PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19990226 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGEMART WIRELESS INC CENTRAL INDEX KEY: 0000947268 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 752575229 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405/A SEC ACT: SEC FILE NUMBER: 000-28196 FILM NUMBER: 99551928 BUSINESS ADDRESS: STREET 1: 3333 LEE PARKWAY SUITE 100 STREET 2: ,UITE 100 CITY: DALLAS STATE: TX ZIP: 75219 BUSINESS PHONE: 2147654000 MAIL ADDRESS: STREET 1: 3333 LEE PARKWAY STREET 2: SUITE 100 CITY: DALLAS STATE: TX ZIP: 75219 FORMER COMPANY: FORMER CONFORMED NAME: PAGEMART NATIONWIDE INC /DE DATE OF NAME CHANGE: 19950627 10-K405/A 1 AMENDMENT NO. 1 TO FORM 10-K FOR YEAR END 12/31/97 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------ FORM 10-K/A (AMENDMENT NO. 1) (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 ------------
COMMISSION FILE NO. 0-28196 ------------------------------ PAGEMART WIRELESS, INC. (Exact name of registrant as specified in charter) DELAWARE 75-2575229 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number)
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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 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. 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.
SIGNATURE TITLE DATE --------- ----- ---- /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
4 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT ------- ---------------------- 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).
E-1 5
EXHIBIT NO. DESCRIPTION OF EXHIBIT ------- ---------------------- 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).
E-2 6
EXHIBIT NO. DESCRIPTION OF EXHIBIT ------- ---------------------- 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.
- --------------- (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 EX-10.3 2 AMENDED/RESTATED SATELLITE SERVICE SUPPLY AGRMT 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. Services Supplemental Proprietary 1 2 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 A & R Satellite AvData Systems, Inc. Services Supplemental Proprietary 2 3 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. A & R Satellite AvData Systems, Inc. Services Supplemental Proprietary 3 4 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. A & R Satellite AvData Systems, Inc. Services Supplemental Proprietary 4 5 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. 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. 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 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 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.
PAGEMART, INC. AVDATA SYSTEMS, INC. By: By: Harold E. Cowan ------------------------------------ ------------------------------------ Title: Title: Vice President Account Management ------------------------------------ ------------------------------------ Date: Date: December 18, 1997 ------------------------------------ ------------------------------------ Signed: /s/ ILLEGIBLE Signed: /s/ HAROLD E COWAN ------------------------------------ ------------------------------------
A & R Satellite AvData Systems, Inc. Services Supplemental Proprietary 9 10 AMENDED AND RESTATED SATELLITE SERVICES SUPPLEMENTAL AGREEMENT SCHEDULE 1 MONTHLY RECURRING CHARGES
Unit Extended Price Qty.* Price ----- ----- -------- Satellite Capacity Units* * * $ *
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 EX-10.22 3 RESALE AGREEMENT DATED 12/12/97 - PAGEMART & GTE 1 EXHIBIT 10.22 RESALE AGREEMENT BETWEEN GTE COMMUNICATIONS CORPORATION AND PAGEMART WIRELESS, INC. 2 TABLE OF CONTENTS
PAGE 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
3 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
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. Page 1 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. Page 2 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. Page 3 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 Page 4 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 Page 5 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. Page 6 * CONFIDENTIAL INFORMATION HAS BEEN DELETED. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT. 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 Page 7 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. Page 8 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. Page 9 13 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. Page 10 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 Page 11 15 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. Page 12 16 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 Page 13 17 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. Page 14 18 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 Page 15 19 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; Page 16 20 (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 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 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 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 24 EXHIBIT A PRICING
[1] NUMERIC SERVICES PER MO, PER UNIT NETWORK US 800/888 800/888 COVERAGE FLEX NETWORK RATE OVERCALL LEVEL CHARGE OVERCALL LEVEL - ----------------------------------------------------------------------------------------------- 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)
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 25 [2] ADDITIONAL NUMERIC SERVICES
SERVICE RATES PER MONTH - -------------------------------------------------------------------------------------- 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 $*
ADDITIONAL TEXT SERVICES:
SERVICE RATE - -------------------------------------------------------------------------------------- Broadcast Services-Generic, for all subscribers $* per month
* 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 26 [3] TEXT SERVICES
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 - -------------------------------------------------------------------------------------------------------------------------------- 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)
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 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 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 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 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 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 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 EX-10.24 4 AGREEMENT TO ASSUME/AMENDMENT NO. 2 TO AGREEMENT 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 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. 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. 4
RESELLER LICENSOR 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 --------------------------------------- ---------------------------------------------
APPROVED AS TO FORM AND LEGALITY J.R. SEASTROM ---------------------------------- Attorney, GTE Telephone Operations Date: 09-30-97 ---------------------------- 4 CONFIDENTIAL 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. 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
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 - ----------------------------------------------------------------------------------------------------------------------- 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
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. 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
SERVICE RATES PER MONTH - --------------------------------------------------------------------------------- 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 $ *
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. 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
PER MO, PER UNIT NETWORK US 800/888 800/888 COVERAGE FLEX NETWORK RATE OVERCALL LEVEL CHARGE OVERCALL LEVEL - --------------------------------------------------------------------------------------------------------------------- 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
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. 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 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 11 EXHIBIT C AUTHORIZED EQUIPMENT EFFECTIVE 10/01/97 PREPARED FOR GTE ***CONFIDENTIAL*** [5.0] 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 $ *
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. 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 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 14 EXHIBIT E NETWORK REPORTS Sample Format - -------------------------------------------------------------------------------- Dial up modems for alpha service. Quantity Ports Available: 24
Sun Mon Tues Wed Thurs Fri Sat Busy Hour 12pm 5pm 5pm 11am 5pm 5pm 9am Max ports in use 5 12 12 13 12 17 8
- -------------------------------------------------------------------------------- Trunking Busy Hour Terminal Name: Anytown, USA Trunks Available: 24
Sun Mon Tues Wed Thurs Fri Sat Busy Hour 5pm 6pm 11pm 5am 5pm 6pm 10am Max Trunks in Use 7 20 19 18 18 24 10
- -------------------------------------------------------------------------------- Internet Gateway Traffic Stats
Sun Mon Tues Wed Thurs Fri Sat Busy Hour 9am 10am 11am 3pm 5pm 6pm 2pm Capacity % Usage 4% 40% 35% 50% 55% 95% 10%
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Sun Mon Tues Wed Thurs Fri Sat Busy Hour 5pm 6pm 11am 5pm 5pm 6pm 10am CPU % Usage 45% 55% 63% 44% 50% 75% 30%
- -------------------------------------------------------------------------------- E-1 CONFIDENTIAL 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 ----
Sun Mon Tues Wed Thurs Fri Sat 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
E-2 CONFIDENTIAL EX-10.25 5 RESALE AGREEMENT DATED JULY 1, 1996 1 EXHIBIT 10.25 RESALE AGREEMENT BETWEEN GTE MOBILNET SERVICE CORP. AND PAGEMART, INC. 2 TABLE OF CONTENTS
PAGE 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
i 3 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
ii 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. 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 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 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 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 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 6 10 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 7 11 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 8 12 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 9 13 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. 10 14 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 11 15 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 12 16 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. 13 17 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. 14 18 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 ---------------------------------- 15 -----END PRIVACY-ENHANCED MESSAGE-----