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CONTRACT NUMBER: C949017S0001
AMENDED AND RESTATED
STRATEGIC ALLIANCE AGREEMENT NO. 1
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
PAGEMART WIRELESS, INC.
CONTRACT MANAGER: XXXX X. XXXXXX
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TABLE OF CONTENTS
1. RECITALS...............................................1
2. DEFINITIONS............................................1
3. DESCRIPTION AND SCOPE..................................2
4. TERM...................................................2
5. TERMINATION............................................3
6. GTE RESPONSIBILITIES...................................4
7. PMWI RESPONSIBILITIES..................................5
8. OWNERSHIP OF ONE-WAY FACILITIES AND FREQUENCIES........6
9. GTE SITES..............................................7
10. CONFIDENTIAL INFORMATION...............................7
11. DISPUTE RESOLUTION.....................................8
12. GENERAL PROVISIONS.....................................9
13. MAINTENANCE AND REPAIRS AT GTE OWNED SITES............14
14. SIGNATURES............................................15
-CONFIDENTIAL-
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AMENDED AND RESTATED
STRATEGIC ALLIANCE AGREEMENT NO. 1
THIS AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT NO. 1 ("Agreement")
is made by and between PageMart Wireless, Inc., a Delaware corporation, with
offices for the purpose of this Agreement located at 0000 Xxx Xxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000 ("PMWI") and GTE Communication Systems Corporation, a
Delaware corporation, acting for the benefit of itself and its affiliates listed
in Exhibit A, with offices located at 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
("GTE") (collectively referred to as the "Parties" and individually as a
"Party").
1. RECITALS
The Parties recognize the mutual benefits to be gained if they cooperate in
the deployment of paging network facilities in the continental United
States ("CONUS") for the provision of wireless messaging and data
transmissions.
This Agreement is intended to create a framework and to define the terms
and conditions under which the Parties shall implement their strategic
alliance in a manner that maximally complements the wireless needs of the
Parties.
IN CONSIDERATION of the above Recitals, the terms and provisions set forth
herein, the mutual benefits to be gained by the performance thereof, and
for the good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
2. DEFINITIONS
Facilities - Both One-Way Facilities and NPCS Facilities
CONUS - The 48 continental United States
NPCS - (Narrowband PCS) - NPCS services operating in the 901-902 MHz,
930-931, and 000-000 XXX xxxxx.
NPCS FACILITIES - Equipment to be integrated into PMWI's network
infrastructure for transmission and receipt of NPCS messages which shall
include but not be limited to NPCS paging transmitters and receivers,
satellite downlinks and cable deployed for the transmitting and receiving
of two way paging messaging services.
One-Way Facilities - The GTE-supplied wireless network infrastructure which
shall include but not be limited to paging transmitters, satellite
downlinks, antennas, and cable being deployed to PMWI for the transmission
of one-way paging/messaging services
Project - The site specific installation function of NPCS or One-Way
Facilities
PCS - (Personal Communications Service) - Radio communications that
encompass mobile and ancillary fixed communication that provide services to
individuals and businesses and can be integrated with a variety of
competing networks.
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RSA - Resale Agreement No. C989107SC001 previously entered into between the
Parties.
Termination Date - That date which is twenty-four (24) months from either
the date of notification of termination or the expiration date because of
non-renewal.
THIRD PARTY SITES - Telecommunications transmission sites owned by or
beneficially belonging to a party other than GTE, notwithstanding Section
3.e., on which One-Way Facilities have been constructed.
3. DESCRIPTION AND SCOPE
a. This Agreement will govern the cooperation of the Parties in
connection with any Project in CONUS involving, without limitation,
the location, design, construction, and management of all One-Way
Facilities, and where specified, all NPCS Facilities. The Parties
agree that the deployment scope of the One-Way Facilities shall be no
less than one hundred fifty (150) and no more than two hundred fifty
(250) transmitters deployed within the first twenty-four (24) months
of this Agreement.
b. All telecommunications and wireless services that are the subject of
this Agreement shall be provided in accordance with the rules,
regulations and orders of the applicable state regulatory agency, the
Federal Communications Commission ("FCC") and the courts of the United
States.
c. The obligations of the Parties to cooperate and work together in
connection with any Project shall be as expressly set forth in this
Agreement. Neither Party undertakes by this Agreement or otherwise to
perform or discharge any liability or obligation for the other Party
not specifically contained herein, whether regulatory or contractual,
or to assume any responsibility whatsoever for the conduct of the
business or operations of the other Party. Nothing contained herein is
intended to give rise to a partnership or joint venture between the
Parties or to impose upon the Parties any of the duties or
responsibilities of partners or joint venturers. Neither Party shall
have any right or authority to act for, or to assume, create or incur
any obligation, liability or responsibility of any kind, whether
express or implied, against, in the name of, or on behalf of, the
other Party, except as expressly provided in this Agreement.
d. Unless otherwise specified herein, each Party shall assume and bear
all expenses, costs and fees incurred or assumed by such Party whether
or not the transactions provided for by this Agreement shall be
effectuated.
e. Any sites that are owned by GTE Wireless, Incorporated on which
One-Way Facilities are located shall be considered Third Party Sites
for the purposes of this Agreement.
4. TERM
The term of this Agreement commenced on September 15, 1994 and shall end on
December 31, 2004, unless earlier terminated in accordance with Section 5.
The term of this Agreement may be extended for successive one-year periods
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following the expiration of the initial term by mutual written consent of
the Parties at least ninety (90) days prior to the end of the then current
term.
5. TERMINATION
a. Termination for Cause. This Agreement may be abandoned or terminated
at any time after the effective date of this Agreement by either
Party's furnishing written notice should the other Party:
i. breach, refuse or fail in any material respect properly to
perform any of its duties, obligations or commitments under this
Agreement, any one of which shall constitute a default, which
default is not substantially cured within thirty (30) days after
receiving written notice specifying the nature of the default;
ii. commence or have commenced against such Party any proceeding,
whether under court supervision or otherwise, for the liquidation
of such Party, determination of insolvency of such Party,
appointment of a receiver for such Party, assignment for the
benefit of all or substantially all of such Party's creditors, or
the bankruptcy of such Party; or
iii. indefinitely suspend its normal business operations.
If this Agreement is terminated by GTE as a result of PMWI's conduct
described in this Section 5 (a), then Section 5.b.i.(1) and (2) below
shall be enforced between the Parties. If this Agreement is terminated
by PMWI as a result of GTE's conduct described in this Section 5 (a),
then Section 5.b.ii.(1) and (2) below shall be enforced between the
Parties.
b. Termination for Convenience. This Agreement may be abandoned or
terminated at any time after the effective date of this Agreement, by
either party, subject to the following:
i. If this Agreement is terminated for convenience by PMWI:
(1) PMWI shall make a payment to GTE based upon the following
formula, per piece of equipment, using a life span of five
(5) years. P=C x (1-t/60) where P represents PMWI's payment
to GTE, C represents GTE's investment in the equipment, and
t represents the time period in months (1-60) that the piece
of equipment has been in service as of the Termination Date.
No equipment will be transferred from GTE to PMWI because of
this payment; and
(2) PMWI will be given the option to purchase the One-Way
Facilities at fair market value as of the Termination Date.
ii. If this Agreement is terminated for convenience by GTE:
(1) GTE shall make a payment to PMWI based upon the following
formula, per piece of equipment, using a life span of five
(5) years. P=R x (1-t/60) where P represents GTE's payment
to PMWI, R
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represents the cost of relocating the pieces of equipment
residing on GTE property, and it represents the time period
in months (1-60) that the piece of equipment has been in
service as of the Termination Date; and
(2) PMWI shall be given the right to purchase the equipment
based upon the greater of ten percent (10%) of the
equipment's original cost or a calculated value utilizing
the formula P=C x (1-t/60) where P represents the purchase
price, C represents GTE's investment in the piece of
equipment, and it represents the time period in months
(1-60) that the piece of equipment has been in service as of
the Termination Date.
c. Termination of the RSA. If the RSA is terminated by:
i. PMWI in accordance with Section 28(a) of said RSA, this
Agreement shall also terminate, and Section 5.b.i.(1) above shall
be enforced between the Parties.
ii. GTE as a result of PMWI's conduct under Section 28(b) or (c) of
said RSA, this Agreement shall also terminate, and Section
5.b.i.(1) and (2) above shall be enforced between the Parties.
iii. PMWI as a result of GTE's conduct under Section 28(b) or (c) of
said RSA, this Agreement shall also terminate, and Section 5.b.ii
(1) and (2) above shall be enforced between the Parties.
d. If this Agreement is either terminated in accordance with this Section
or not renewed, PMWI agrees to keep the One-Way Facilities operating
in a normal capacity until the Termination Date and GTE agrees to
permit PMWI to leave any equipment located on GTE property through the
Termination Date.
e. The termination of this Agreement shall not affect any obligation of a
Party which is unfulfilled as of such termination provided that such
obligation by its terms or nature survives such termination.
6. GTE RESPONSIBILITIES
a. For any Project, GTE shall have the final responsibility, subject to
the consent of PMWI which shall not be unreasonably withheld, of
determining when and where the One-Way Facilities shall be
constructed.
b. For any One-Way Project, GTE shall, at its sole cost and expense,
finance the construction of One-Way Facilities on which PMWI would
utilize PMWI's frequencies to provide wireless services to PMWI's
customers and to GTE as a reseller of PMWI's wireless services.
c. In conjunction with the construction of any One-Way Facilities, GTE
shall be financially responsible for purchasing any transmitters,
antennae, satellite downlink, cable, and third party labor necessary
to install the One-Way Facilities.
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d. For any One-Way Project, GTE shall be responsible for payment of all
property taxes, whether real or personal, on all One-Way Facilities
that may be imposed or assessed by any appropriate taxing authority.
e. GTE shall be responsible for payment of monthly site lease or license
fees to a maximum amount of $400 per month per site for fifty percent
(50%) of the total One-Way Project sites. GTE shall be given credit
for any sites located on property owned or leased by GTE. GTE's
monthly total site lease obligations shall be calculated using the
following formula: 0=$400 x (.5T-N), where 0 is equal to GTE's
obligation, T is equal to the total number of sites and N is equal to
the number of sites owned by GTE (GTE Network Services or its
successor). GTE will remit payment directly to PMWI for such site
lease obligation within thirty (30) days of receipt of an invoice for
same. This per month per site charge shall be increased on the
anniversary of this Agreement each year of this Agreement by five
percent (5%).
7. PMWI RESPONSIBILITIES
a. For any Project, PMWI shall be solely responsible for conducting any
propagation studies at PMWI's expense.
b. For any Project, PMWI, shall license the One-Way Facilities at
locations selected by GTE as described in Section 6.a. herein, to
utilize PMWI's nationwide frequencies to provide wireless services to
PMWI's customers and to GTE as a reseller of PMWI's wireless
services.
c. To the extent that any One-Way Facilities may be located on Third
Party Sites, PMWI shall be solely responsible for negotiating the
terms and conditions of any lease or license, any expenses associated
with lease site preparation which shall include but not be limited to
shelter construction and provisioning of electrical power and for the
remittance of any operating expenses associated with that lease or
license. The terms and conditions of any such lease or license should
contain authorization that GTE, subject to prior notification, shall
have reasonable access during normal working hours to visit and
inspect the One-Way Facilities.
d. Although GTE and PMWI shall jointly agree on the selection of
contractors to construct and maintain all One-Way Facilities of any
Project, PMWI shall be responsible, at its sole cost and expense, for
managing, coordinating and overseeing the construction and maintenance
of all Facilities.
e. At PMWI's sole cost and expense, PMWI shall operate all Facilities,
including, without limitation, the payment for any access connections
including but not limited to business single party lines and for any
long distance service necessary for polling all Facilities to ensure
all Facilities are operational, in a good state of repair, and
operating according to manufacturers specifications.
f. At PMWI's sole cost and expense, PMWI shall utilize PMWI's national
control center to provide monitoring, ongoing quality assurance and
maintenance, and local repair dispatch services for all Facilities
covered by this Agreement. PMWI shall additionally be responsible for
furnishing any upgrades, whether software or
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otherwise, reasonably necessary for the operation of all Facilities.
g. PMWI shall, at its sole cost and expense, link by satellite all
Facilities to PMWI's network infrastructure for network control.
h. PMWI shall provide a reduction in GTE's monthly billing as a reseller
of PMWI Services, as authorized by and defined in the RSA, based upon
the following schedule:
i. Two hundred fifty dollars ($250) per month per installed
transmitter financed by GTE for months number one (1) through
sixty (60) of this Agreement.
ii. One hundred dollars ($100) per month per installed transmitter
financed by GTE for months number sixty-one (61) through one
hundred twenty (120) of this Agreement.
Notwithstanding the foregoing, the Parties agree that at no time shall
the amount of reduction as calculated above exceed twenty-five percent
(25%) of the monthly billing GTE receives as a reseller of PMWI
Services. Should the Parties agree to extend this Agreement beyond its
initial one hundred twenty (120) month term, the above per month
billing reduction from PMWI to GTE will be renegotiated at that time.
i. For any One-Way or NPCS Project, PMWI will be responsible for payment
of all monthly site lease or license fees. GTE shall reimburse PMWI
for fifty percent (50%) of any such One-Way site lease fees as set
forth in Section 6.e. above.
j. For any NPCS Project, PMWI shall be responsible for all capital
expenses involved in the purchase of, installation of, and
construction of any NPCS Facilities.
k. For any NPCS Project, PMWI shall be responsible for all property
taxes, whether real or personal, on all NPCS Facilities that may be
imposed or assessed by any appropriate taxing authority.
l. PMWI agrees to reimburse GTE the amount of four hundred dollars ($400)
per month for each GTE site on which PMWI has installed NPCS
Facilities. This monthly site charge shall be increased on the
anniversary of this Agreement each year of this Agreement by five
percent (5%).
8. OWNERSHIP OF ONE-WAY FACILITIES AND FREQUENCIES
a. GTE shall have legal title to and shall be the exclusive owner of all
One-Way Facilities whether the property constituting the One-Way
Facilities shall be characterized as real or personal. PMWI, at its
expense, will defend GTE's rights to the One-Way Facilities and will
keep the One-Way Facilities free from all liens, encumbrances, and
legal processes, other than those arising out of actions of GTE. GTE
shall be permitted to display notice of its ownership of the One-Way
Facilities by affixing to the items of the One-Way Facilities indicia
of ownership and PMWI agrees not to remove, alter, or obscure said
identification. PMWI grants to GTE a security interest in PMWI's
interest in the One-Way Facilities subject to this
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Agreement and agrees to execute all documents necessary to perfect
said security interest.
b. Notwithstanding the foregoing, PMWI and GTE understand and agree that
the nationwide frequencies upon which PMWI furnishes the wireless
services provided for herein are licensed exclusively to PMWI. Nothing
contained herein shall permit GTE to disconnect the transmitters,
antennae or other equipment or remove any of such assets from any
Facility sites during the term of this Agreement without prior written
permission from PMWI, such permission not to be unreasonably withheld.
c. PMWI shall have legal title to or the equitable right to control NPCS
Facilities whether the property constituting the NPCS Facilities shall
be characterized as real or personal. PMWI shall be permitted to
display notice of its ownership of the NPCS Facilities by affixing to
the items of the NPCS Facilities indicia of ownership and GTE agrees
not to remove, alter, or obscure said identification.
9. GTE SITES
GTE shall furnish certain sites owned or leased by GTE to PMWI for the
installation of the Facilities and provision of wireless services to PMWI's
customers and to GTE as a reseller of PMWI's wireless services at no cost
to PMWI until the Termination Date. In performing its obligations under
this Agreement, PMWI shall comply with all reasonable rules and
regulations, which shall be mutually agreed to and established by the
Parties, with respect to access to and use of the GTE sites. GTE's
obligation to pay site lease or license fees shall be reduced by the number
of sites owned or leased by GTE or as set forth in Section 6.e above.
10. CONFIDENTIAL INFORMATION
a. To effectuate this Agreement, it may be necessary for either Party to
disclose to the other proprietary or confidential customer, technical
and business information in written, graphic, oral or other tangible
or intangible forms ("Confidential Information"). In order to protect
such Confidential Information from improper disclosure, each party
agrees: (1) that all such Confidential Information shall be and shall
remain the exclusive property of the source; (2) to limit access to
such Confidential Information to authorized employees who have a need
to know the Confidential Information in order to perform the services
set out in this Agreement; (3) to keep such Confidential Information
confidential and to use the same level of care to prevent disclosure
or unauthorized use of the received Confidential Information as it
exercises in protecting its own Confidential Information of a similar
nature; (4) for a period of three years following any disclosure, not
to copy or publish or disclose such Confidential Information to others
or authorize anyone else to copy or publish or disclose such
Confidential Information to others without the prior written approval
of the source; (5) to return promptly any copies of such Confidential
Information to the source at its request; and (6) to use such
Confidential Information only for purposes of fulfilling work or
services performed hereunder and for other purposes only upon such
terms as may be agreed upon between the parties in writing.
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b. These obligations shall not apply to any Confidential Information
which was legally in the recipient's possession prior to receipt from
the source, was received in good faith from a third party not subject
to a confidential obligation to the source, now is or later becomes
publicly known through no breach of confidential obligation by the
recipient, was developed by the recipient without the developing
person(s) having access to any of the Confidential Information
received in confidence from the source, or which is required to be
disclosed pursuant to subpoena or other process issued by a court or
administrative agency having appropriate jurisdiction. If a receiving
party receives a request to disclose any Confidential Information
(whether pursuant to a valid and effective subpoena, an order issued
by a court or other governmental authority of competent jurisdiction
or otherwise) on advice of legal counsel that disclosure is required
under applicable law, such party agrees that, prior to disclosing any
Confidential Information, it shall (i) notify the disclosing party of
the existence and terms of such request or advice, (ii) cooperate with
the disclosing party in taking legally available steps to resist or
narrow any such request or to otherwise eliminate the need for such
disclosure, if requested to do so by the disclosing party, and (iii)
if disclosure is required, use its best efforts to obtain a protective
order or other reliable assurance that confidential treatment will be
afforded to such portion of the Confidential Information as is
required to be disclosed. The disclosing party shall reimburse the
other party for its reasonable expenses, including attorney fees, in
exerting best efforts in complying with b (ii) and b (iii).
c. The obligation of confidentiality and use with respect to Confidential
Information disclosed by one party to the other shall survive any
termination of this Agreement for a period of three years from the
date of the initial disclosure of the Confidential Information.
11. 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 will 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 nonlawyer,
business representatives. The location, format, frequency, duration
and conclusion of these 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
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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 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. The arbitration shall be held in
the city where this Agreement was executed by GTE. 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 costs of these procedures. A Party
seeking discovery shall reimburse the responding Party the costs of
production of documents (to include search time and reproduction
costs). The Parties shall equally split the fees of the arbitration
and the arbitrator.
12. GENERAL PROVISIONS
a. Further Assurances. From and after the effective date of this
Agreement, the Parties each agree to execute and deliver such further
documents and instruments and to do such further acts and things as
the other may reasonably request in order to effectuate the
transactions contemplated by this Agreement. The Parties shall
cooperate and assist one another in the performance of the provisions
of this Agreement, and shall take such steps as are reasonably
necessary to allow the other Party to discharge the obligations
imposed by this Agreement.
b. Excusable Delays. Neither Party shall be liable for any delay or
failure in its performance of any of the acts required by this
Agreement when such delay or failure arises beyond the reasonable
control of such Party. Such causes may include, without limitation,
acts of God or public enemies, labor disputes, material or component
shortages, supplier failures, embargoes, rationing, acts of local,
state or national governments or public agencies (not solicited,
encouraged or invited by any Party), utility or communication failures
or delays, fires, floods, epidemics, riots and strikes. The time for
performance of any act delayed by such cause shall be postponed for a
period equal to the delay; provided, however, that the Party so
affected shall give prompt notice to the other Party of such delay.
The Party so affected, however, shall use its best efforts to avoid or
remove such causes of nonperformance to complete performance of the
act delayed, whenever such causes are removed.
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c. Assignment. Neither this Agreement nor any of the rights hereunder may
be assigned or otherwise transferred by any Party, by operation of law
or otherwise, without the prior written consent of the other Party,
except that the Parties may, without obtaining such consent, assign
their respective obligations and rights hereunder to their parent, or
any other subsidiary of a parent, eighty percent (80%) or more of the
voting stock of which is owned by the parent. In any case of
assignment, however, the assignee shall assume all obligations of the
assigning Party hereunder and the other Party shall have received
documents satisfactory in form and substance to it evidencing such
assumption. Any such assignment shall not relieve any Party to this
Agreement of its obligations hereunder, and any such assignee may,
upon the terms and conditions, reassign its rights hereunder to such
original Party or to any assignee of such original Party permitted
hereunder.
d. Successors in Interest. All provisions of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by and
against the respective successors and assigns of the Parties or
purchasers of substantially all of the assets of a Party.
e. Independent Contractor Relationship. The persons provided by each
Party shall be solely that Party's employees or agents and shall be
under the sole and exclusive direction and control of that Party. They
shall not be considered employees of the other Party for any purpose.
Each Party shall remain an independent contractor with respect to the
other and shall be responsible for compliance with all laws, rules and
regulations involving, 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, such as, Social Security, unemployment,
Workers' Compensation, disability insurance, and federal and state
withholding. Each Party shall indemnify the other for any loss,
damage, liability, claim, demand or penalty that may be sustained by
reason of its failure to comply with this provision.
f. Publicity. Any news release, public announcement, advertising or any
form of publicity pertaining to this Agreement, provision of services
pursuant to it, or association of the Parties with respect to the
subject of this Agreement shall be subject to prior written approval
of both parties.
g. Trademarks and Trade Names. Except as specifically set out in this
Agreement, nothing in this Agreement shall grant, suggest or imply any
authority for one Party to use the name, trademarks, service marks or
trade names of the other for any purpose whatsoever.
h. Records. Each Party shall keep true and accurate records directly
relating to this Agreement in accordance with generally accepted
accounting practices. Such records shall be retained for a period of
three (3) years from the Termination Date.
i. Attorney's Fees. Except as set forth in Section 11, in the event any
Party to this Agreement shall be required to initiate legal
proceedings (i) to interpret or to enforce performance of any term or
condition of this Agreement; (ii) to enjoin any action
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prohibited hereunder; or (iii) to gain any other form of relief
whatsoever, the prevailing Party shall be entitled to get such sums
from the other Party, in addition to any other damages or compensation
received, as well as reimbursement from the other Party for reasonable
attorneys' fees and court costs incurred on account thereof
notwithstanding the nature of the claim or cause of action asserted by
the prevailing Party.
j. Indemnification. 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 damage to property, including, without limitation, all Facilities,
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.
k. Insurance. GTE and PMWI 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 $500,000 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 $2,000,000 for combined single limit for bodily injury,
including death, and/or property damage. GTE and PMWI each shall cause
the other to be included as an Additional Insured under their
respective policies and GTE's and PMWI's appropriate coverage under
such policies shall be primary. GTE and PMWI 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 advance written
notice is given to the Party named as an Additional Insured.
Notwithstanding the above, GTE and PMWI shall each have the option,
where permitted by law, to self-insure any or all of the foregoing
risks.
l. Assuring Performance of Responsibilities. Notwithstanding anything
stated or implied to the contrary elsewhere in this Agreement, GTE
may, as permissible under FCC rules and regulations, at its option and
without prejudice to other rights, take over and complete all or part
of PMWI's responsibilities with respect to the One-Way Facilities if
PMWI has defaulted, which default is not substantially cured within
thirty (30) days of receiving written notice of the default, or PMWI
has not furnished GTE with adequate assurance that PMWI is prepared to
perform its obligations in a timely fashion and/or as required by this
Agreement. PMWI shall be liable to GTE for any costs incurred by GTE
in discharging PMWI's responsibilities. If, in GTE's reasonable
opinion, a hazardous condition exists at any Facility, GTE may without
notice to PMWI take such immediate action as is necessary to protect
persons, the Facilities or the property of third parties from damage
or interference caused by the hazard.
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m. Rights and Remedies. The rights and remedies provided each of the
Parties herein shall be cumulative and in addition to any other rights
and remedies provided by law or otherwise. Any failure in the exercise
by any Party of its rights to enforce any provision of this Agreement
for any default or violation by another Party shall not prejudice such
Party's right of enforcement for any further or other default or
violation.
n. Limitation of Liability. It is expressly understood that neither Party
makes any warranty to the other with respect to the performance or
fitness for any purpose of the products or services contemplated by
this Agreement. Each Party's liability to the other for any loss,
cost, claim, injury, liability or expense, including reasonable
attorney's fees, relating to or arising out of any negligent act or
omission in its performance of obligations arising out of this
Agreement, shall be limited to the amount of direct damage actually
incurred. Absent gross negligence or knowing and willful misconduct
which causes a loss, neither Party shall be liable to the other for
any indirect, special or consequential damage of any kind whatsoever.
For purposes of this clause, payments and related expenses for third
party claims, suits or demands for which indemnity is owed shall be
considered direct damages.
o. Limitation of Actions. No action, regardless of form, arising out of
the subject matter of this Agreement may be brought by either Party
more than two (2) years after the cause of action has accrued. The
Parties waive the right to invoke any different limitation on the
bringing of actions provided under state law.
p. Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be
effective when delivered personally, or if by telex or TWX, when
confirmed (which confirmation may be by reply telex or signal
indicating that the message has been clearly received) or if mailed,
five (5) days after mailing, postage prepaid and addressed to the
Parties at their respective addresses set forth below, unless by such
notice a different person, address or number shall have been
designated for giving notice hereunder:
If to GTE: GTE Communication Systems Corporation
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Manager-Contract Management
Mail Code: HQWO3N56
If to PMWI: PageMart Wireless, Inc.
0000 Xxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Vice President Carrier Services Division
q. Waiver. The waiver by a Party of the performance of any covenant,
condition, obligation, representation, warranty or promise in this
Agreement shall not invalidate this Agreement or be deemed a waiver by
such Party of any other covenant, condition, obligation,
representation, warranty or promise. The waiver of a Party of the time
for performing any act or condition hereunder does not constitute a
waiver
12
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of the act or condition itself.
r. Construction. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any third Party. No third Party,
including any creditor of either Party, shall have any rights against
the Parties or any of their subsidiaries, successors or assigns by
reason of or under this Agreement.
s. Severability. In the event that any one or more provision(s) contained
in this Agreement should for any reason be held to be unenforceable in
any respect, such unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as
if such unenforceable provision(s) had not been contained herein.
t. Survival of Obligations. The respective obligations of the Parties
under this Agreement which by their nature would continue beyond the
termination, cancellation or expiration hereof, shall survive
termination, cancellation or expiration hereof.
u. Headings. The captions of Articles and Sections of this Agreement are
inserted only as a matter of convenience and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any
provision hereof.
v. Compliance with Laws and Regulations. The Parties shall comply with
all foreign, federal, state and local laws and regulations applicable
to their performance as described in this Agreement.
w. Applicable Law. This Agreement is made and executed in the state of
Texas and the laws and decisions of Texas, without reference to
provisions covering conflicts of laws, shall control the construction,
interpretation, validity and enforcement of this Agreement.
x. Amendments, Modifications and Supplements. Amendments, modifications
and supplements to this Agreement are allowed and will be binding on
the Parties after the effective date, provided such amendments,
modifications and supplements (1) are in writing, signed by an
authorized representative of both parties, and (2) by reference
incorporate this Agreement and identify the specific Sections or
clauses contained herein which are amended, modified or supplemented
or indicate that the material is new. The term, "this Agreement" shall
be deemed to include any future amendments, modifications and
supplements.
y. Entire Agreement. This Agreement, including all Exhibits attached
hereto, supersede all prior and contemporaneous agreements not
required or contemplated hereby. This Agreement may not be modified
except by a writing signed by authorized representatives of the
Parties.
z. Counterparts. This Agreement may be executed in one or more
counterparts, simultaneously or separately, and each counterpart shall
be deemed to be an original for all purposes. If the counterparts are
separately executed, this Agreement shall be deemed executed when each
Party has signed a copy. Thereafter, the Parties shall exchange signed
copies of this Agreement for their respective files.
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13. MAINTENANCE AND REPAIRS AT GTE OWNED SITES
a. PMWI will reimburse GTE for all actual costs incurred (including
reasonable travel expenses) when escorting PMWI employees to any
One-Way or NPCS Facilities located at unmanned GTE owned sites. Such
amount shall not exceed a rate cap of eighty-five dollars ($85) per
hour, unless overtime or premium time is required, in which case such
rate cap is not applicable. PMWI agrees to give GTE twenty-four (24)
hour notice prior to scheduling any such request.
b. In the event PMWI requests GTE to perform maintenance or repairs on
any Facilities, PMWI agrees to provide all parts necessary to complete
the maintenance or repairs and will compensate GTE one hundred dollars
($100) per hour, plus all actual costs incurred (including reasonable
travel expenses).
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14. SIGNATURES
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date or
dates indicated below to be effective when executed by both.
PAGEMART WIRELESS, INC. GTE COMMUNICATION SYSTEMS
CORPORATION
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXX X. XXXXXX
------------------------------ --------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxx
---------------------------- ------------------------------
Title: V.P. Law and Regulation Title: Senior Contract Manager
---------------------------- ------------------------------
Date: April 21, 1999 Date: April 22, 1999
---------------------------- ------------------------------
[STAMP]
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EXHIBIT A
GTE AFFILIATED ENTITIES
GENERAL ADMINISTRATION
GTE Corporation
GTE Finance Corporation
GTE Investment Management Corporation
GTE Realty Corporation
GTE Realty Corporation of Connecticut
GTER Incorporated
GTE-TCCA, Inc.
GTE REinsurance Company Limited (Vermont)
GTE Life Insurance Company Limited (Bermuda)
GTE REinsurance Management Limited (Bermuda)
GTE Service Corporation
GTE Shareholder Services Incorporated
GTE VisNet Incorporated
GOVERNMENT SYSTEMS
Contel Federal Systems, Inc.
GTE Government Systems Corporation
GTE CyberTrust Solutions Incorporated
GTE Federal Services Corporation
GTE Government Systems Overseas Corporation
GTE Overseas Systems and Services Corporation
Telecom Systems Incorporated
Contel Page International Holdings, Inc.
Contel Page International, Inc.
Page Europa, S.p.A.
MTX Italia
GTE Telecom Incorporated
GTE Telecom International Incorporated
GTE Telecom International Systems Corporation
GTE Telecom Saudi Arabia LTD
INFORMATION SERVICES
GTE Information Services Incorporated
General Telephone Directory Company C. por A.
GTE Communications Corporation
GTE Data Services GmbH
GTE Directories (Belgium) Limited
GTE Directories (B) SDN.BHD (Brunei)
GTE Directories Corporation
Associated Directory Services-WC, Company
GTE Directories Distribution Corporation
GTE Directories Sales Corporation
GTEX Corporation
GTE Directories (HK) Limited (Hong Kong)
GTE Directorios - Republica Dominicana, C. por A.
GTE Government Information Services Incorporated
GTE Information Services (UK) Limited (England)
U S West Polska Sp. Z o.o
GTE New Media Services Incorporated
GTE Telecommunications Services Incorporated
GTE Yellow Pages Publishing Hungary Kft
INTERNETWORKING OPERATIONS
GTE Internetworking Incorporated
GTE Intelligent Network Services Incorporated
BBN Corporation
BBN International Corporation
BBN International Sales Corporation
BBN Securities Corporation
BBN U.K. Limited
Bolt Xxxxxxx and Xxxxxx Corporation
Realtech Corporation
TELEPHONE OPERATING COMPANIES
GTE Alaska Incorporated
GTE Arkansas Incorporated
GTE California Incorporated
Contel Advanced Systems, Inc.
GTE Florida Incorporated
GTE Florida Business Connections 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
GTE Northwest Incorporated
GTE West Coast Incorporated
GTE South Incorporated
GTE Southwest Incorporated
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
GTE Anglo Holding Company Incorporated
La Compagnie de Telephone Anglo-Canadienne/Anglo-
Canadian Telephone Company
BC TELECOM Inc.
Aerotech Specialities Ltd.
BC TEL
Canadian Telephones and Supplies Ltd.
ISM Information Systems Management
(B.C.) Corporation
BC TEL Mobility Cellular Inc.
BC TEL Mobile Ltd.
BC TEL Properties Inc.
BC TEL Risk Management Inc.
BC TEL Systems Support Inc.
Microtel International Inc.
SRI Strategic Resources Inc.
Telecom Leasing Canada (TLC) Limited
Quebec-Telephone
QuebecTel Communications Inc.
QuebecTel Mobilite Inc.
Quebec Tel International Inc.
GTE Customer Networks, Inc.
GTE Data Services Incorporated
GTE Data Services International Incorporated
A-1
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EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Holdings (Canada) Limited
Compania Dominicana de Telefonos, C. por A.
(Codetel)
Quality Telecommunications, C. por A.
GTE International Telephone Incorporated
Informatica y Telecommunicaciones, C. por A.
(Dominican Republic)
GTE International Telecommunications Incorporated
GTE do Brasil Limitada
GTE Mexico, L.L.C.
GTE PCS International Incorporated
GTE Venezuela Incorporated
VenWorld Telecom, C.A. (Venezuela)
Compania Anonima Nacional Telefonos de Venezuela (CANTV)
Prontocel S.A. (Brazil)
GTE Investments Incorporated
GTE London Limited (England)
GTE Main Street Incorporated
GTE Media Ventures Incorporated
ContelVision, Inc.
GTE Enterprise Initiatives Incorporated
GTE Vantage Incorporated
WIRELESS PRODUCTS AND SERVICES
GTE Airfone Incorporated
GTE Airfone of Canada Incorporated
GTE Railfone Incorporated
Mexfone, S.A. de C.V.
GTE Wireless Incorporated
GTE Mobile Communications Service Corporation
GTE Mobile Communications International
Incorporated
GTE Mobilnet of Asheville Incorporated
GTE Mobilnet of Danville Incorporated
GTE Mobilnet of Eastern North Carolina Incorporated
GTE Mobilnet of Jacksonville Incorporated
GTE Mobilnet of Jacksonville II Incorporated
GTE Mobilnet of Wilmington Incorporated
GTE Mobilnet of Wilmington II Incorporated
GTE Mobilnet of Fayetteville Incorporated
GTE Mobilnet of Florence, South Carolina Incorporated
GTE Mobilnet of North Carolina Incorporated
GTE Mobilnet of Raleigh Incorporated
GTE Mobilnet of South Carolina Incorporated
GTE Mobilnet of the Southeast Incorporated
GTE Cellular Communications Corporation
GTE Mobilnet of Cleveland Incorporated
GTE Mobilnet Sales Corp.
GTE Mobilnet Service Corp.
GTE Mobilnet of Austin Incorporated
GTE Wireless of Houston Incorporated
GTE Wireless of the Midwest Incorporated
GTE Wireless of the Pacific Incorporated
GTE Mobilnet of Clatsop Incorporated
Contel Cellular International, Inc.
GTE Mobilnet Holding Incorporated
GTE Mobilnet of Alabama Incorporated
GTE Mobilnet of Florence, Alabama Incorporated
GTE Mobilnet of Chattanooga Incorporated
GTE Mobilnet of Chattanooga II Incorporated
GTE Mobilnet of Clarksville Incorporated
GTE Mobilnet of Gadsden Incorporated
GTE Mobilnet of Knoxville Incorporated
GTE Mobilnet of Memphis Incorporated
GTE Mobilnet of Memphis II Incorporated
GTE Mobilnet of Nashville Incorporated
GTE Mobilnet of Tennessee Incorporated
GTE Mobilnet of Central California Incorporated
Pinnacles Cellular, Inc.
GTE Mobilnet of Huntsville Incorporated
GTE Mobilnet of Illinois Funding Incorporated
GTE Mobilnet of San Diego Incorporated
GTE Mobilnet of the Southwest Incorporated
GTE Wireless of the South Incorporated
OTHER OPERATIONS
GTE China Incorporated
GTE International Telecommunications Services LLC
GITS Branch LLC
GTE Holdings Mexico, S. de X.X. de C.V.
GTE Data Services-Mexico, S.A. de C.V.
GTEDS Services-Mexico, S.A. de C.V.
GTE Supply-Mexico, S.A. de C.V.
GTE Communications Services Incorporated
GTE Leasing Corporation
GTE Leasing Acceptance Corporation
Kalama Grain Terminal, Inc.
GTE Products of Connecticut Corporation
GTE Communication Systems Corporation (GTE Supply)
GTE International Incorporated
GTE Far East (Services) Limited
GTE Overseas Corporation
GTE Laboratories Incorporated
GTE Operations Support Incorporated
GTE Operations do Brasil Comercial Ltda.
West Indies Telephone Company
A-2
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EXHIBIT A
GTE AFFILIATED ENTITIES
Televac, Inc.
GTE Transfer Corporation
A-3
