1
EXHIBIT 10.3
NATIONWIDE MESSAGING
RESELLER AGREEMENT
THIS AGREEMENT ("Agreement") is made this 19th day of December 1994,
by and between MobileComm Nationwide Operations, Inc. (herein referred to as
"MobileComm"), located at 0000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxx 00000, and Mercury Cellular Telephone Company (herein referred to
as "Reseller"), located at One Lakeshore Drive, CM Tower, Suite 1495, X.X.
Xxxxxx 0000, Xxxx Xxxxxxx, XX 00000-0000.
WHEREAS, MobileComm provides Nationwide Messaging Services (defined
below), using frequency 931.8875 MHz pursuant to licensing by the FCC (defined
below); and
WHEREAS, Reseller desires to purchase MobileComm's Nationwide
Messaging Services in bulk quantities for resale to the public and desires to
assume certain responsibilities relating to the provision of Nationwide
Messaging Services.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained, MobileComm and Reseller hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms when used herein shall have the following
meanings:
(a) "Automated Access System" means the use of a reseller operated data
terminal for the purpose of activating, swapping equipment, or
disconnecting Subscribers on the Service.
(b) "Facilities" shall mean the telecommunications switching,
transmitting and other related equipment maintained by MobileComm
to provide MobileComm's Nationwide Messaging Services on frequency
931.8875 MHZ or such other frequencies as the parties may agree
from time to time.
(c) "FCC" shall mean the Federal Communications Commission.
(d) "Nationwide Messaging Services" or "Services" shall mean the paging
service provided by MobileComm to Reseller on a nationwide or
regional basis on frequency 931.8875 MHz, including voice storage
and/or retrieval in conjunction with such Nationwide Messaging
Service if applicable unless otherwise provided herein.
(e) "PIN" shall mean Personal Identification Number, which number will
identify each paging receiver and permit access to the Nationwide
Messaging Services.
(f) "Subscriber" shall mean any party to whom Reseller sells Nationwide
Messaging Services.
ARTICLE II
COOPERATIVE DISTRIBUTORSHIP
MobileComm and Reseller agree that at all times during the term of
this Agreement, each shall endeavor to maintain prompt, courteous and efficient
dealings with each other and to the public, and will be governed in all
dealings with the public by the highest standards of honesty, integrity and
fair dealings, and will do nothing which
1
2
discredits, reflects adversely upon or in any manner injures the reputation or
goodwill of the other.
ARTICLE III
TERM OF AGREEMENT
The term of this Agreement shall be for a period of two (2) years from
12/19, 1994, the date of execution by MobileComm ("Initial Term"), unless
otherwise terminated pursuant to Article XII hereof. This Agreement shall
automatically renew for two additional one year terms unless notice of
non-renewal is received by either party at least ninety (90) days prior to the
expiration date of this Agreement or any renewals thereof.
Reseller expressly agrees that this Agreement shall be of no effect
until executed by an officer of MobileComm.
ARTICLE IV
PRICES: TERMS OF PAYMENT
(a) Reseller shall pay to MobileComm the charges set forth in Exhibit 1
for the Services. Reseller's obligation to pay Mobilecomm is not in
any way contingent upon Reseller's collection from Subscribers.
(b) MobileComm's charges for Services to Reseller may be modified from
time to time upon sixty (60) days' advance written notice; provided,
however, that MobileComm may not increase the prices on Exhibit 1
during the first six (6) months of the Initial Term except as
provided in Article IV(f) hereof. In the event MobileComm increases
prices pursuant to this Article IV(b) in excess of 20% of the prices
set forth in Exhibit 1 within any two (2) year period, Reseller may
terminate this Agreement upoon thirty (30) days' written notice to
MobileComm; provided, however, Reseller's right to terminate shall not
apply (i) if MobileComm reduces such increase to 20% or less or (ii)
if MobileComm increases the prices pursuant to Article IV(f) hereof.
(c) In addition to the charges set forth in Article IV(a) or IV(b) above,
Reseller shall be required to pay any surcharge, duty, levy, tax or
withholding, including, but not limited to, sales, property, ad
valorem, license and use taxes, or any tax in lieu thereof or in
addition thereto, imposed by any local, state or federal government or
governmental agency with respect to the Nationwide Messaging Services,
or with respect to this Agreement itself, excepting any taxes on the
income of MobileComm.
(d) Charges under Article IV(a) and IV(b) above shall commence with
respect to each PIN assigned to Reseller (which shall be assigned by
MobileComm in accordance with MobileComm's policies) at the time the
PIN is activated. Such charges shall continue until the date such PIN
is canceled or otherwise disconnected. The charges relating to
Services and PINs that are activated during fractional parts of months
will be pro-rated calculated on the basis of the monthly billing amount
times twelve (12) divided by 365, times the number of days Reseller
receives the Services during the month, including the day of sale or
termination, as the case may be. MobileComm reserves the right to
modify this Article IV(d), in its sole discretion upon sixty (60)
days' written notice to Reseller.
(e) Services hereunder shall be billed to Reseller monthly. Billing for
in-service PIN charges and taxes shall be in advance; billing for
usage, overcalls, connect fees, and late-payment charges, pro-rata
billing for additional PINs activated and pro-rata credits for
terminated PINs shall be billed one month in arrears. Reseller agrees
to pay all charges attributable to such Services in United States
Dollars on or before the twentieth (20th) calendar day following the
invoice date. Any amount which is not paid in full by the due date
shall be subject to a late payment charge equal to the maximum rate
permitted by applicable law form the due date until paid, up to 1.5
percent per month. Any amounts required to be paid hereunder will be
2
3
deemed paid when received, subject to collection, at the location
designated by MobileComm from time to time. In the event of a good
faith dispute by Reseller as to any amount charged by MobileComm,
Reseller shall notify MobileComm in writing of the dispute no later
than the sixtieth (60th) day following the date of the invoice in which
the disputed amount is billed to Reseller. In no event, however,
shall Reseller withhold or delay payment. In the event payment is
withheld or delayed, MobileComm may, in addition to all other rights
which it has at law or under this Agreement, suspend all
administrative activities provided to Reseller, including but not
limited to the provision of new PINs, disconnects, swaps, etc.
Nothing contained in this Article (e) shall be construed as in any
way limiting the rights of MobileComm under Article XII hereof to
declare Reseller in default and to terminate this Agreement for
nonpayment. Billing disputes not documented to MobileComm within
sixty (60) days of MobileComm's invoice date shall be forever waived
by Reseller.
(f) MobileComm may, without prior notice to Reseller, increase
its charges to Reseller at any time to the extent MobileComm's costs
are increased by any order of any federal, state or local authority.
In the event MobileComm receives advance notice of any such cost
increases, such notice will be given promptly to Reseller.
ARTICLE V
RESELLER'S OBLIGATIONS
(a) Services provided under this Agreement shall be in accordance
with all applicable rules and regulations of the FCC and the
appropriate state regulatory commissions (if applicable).
(b) Reseller is solely responsible for determination of prices charged
to Subscribers for the Services.
(c) Reseller is responsible for ensuring that any equipment utilized by
Subscribers in connection with the Services and each Subscriber's use
thereof shall at all times meet industry standards for compatibility,
FCC and other applicable regulatory authorities' requirements, and the
reasonable technical requirements and standards set forth by
MobileComm from time to time.
(d) Subject to Article V(e) Reseller shall permit only 1200 Baud POCSAG
paging receivers to be activated on the Facilities unless otherwise
notified in writing by MobileComm and will act immediately to replace
any equipment found to be non-conforming to this requirement.
Reseller will maintain an adequate supply of such paging receivers to
satisfy Subscriber demand for sales and replacement of equipment.
(e) Reseller shall be soley responsible for all risks and expenses
incurred in connection with its actions in the sale or use of the
Services or for any other acts required of Reseller pursuant to this
Agreement. Reseller shall act in all respects on its own account and
shall be solely responsible for any credit verification, deposits,
billing, collection, bad debt, consolidation, Subscriber billing
complaints, sales taxes and similar taxes on the equipment and
Services provided by or through Reseller. Reseller shall use its best
efforts to prevent fraudulent or illegal use by any Subscriber of any
PINs assigned to Reseller and shall act immediately to stop fraudulent
or illegal use by any Subscriber of Reseller as soon as such use is
discovered or made known to Reseller. Reseller shall immediately
report to MobileComm any material complaints received from Subscribers
relating to Services provided hereunder.
(f) Reseller shall not make any warranties, express or implied, with
regard to the Services and specifically agrees it shall make no such
warranties to any Subscriber.
3
4
(g) In the event that Reseller and MobileComm enter into a written
agreement pursuant to which Reseller's authorized agents, subagents
or other resellers are authorized by MobileComm to resell the
Services, Reseller agrees that:
(i) Each such agent, subagent, or reseller shall market
MobileComm products and Services in only the market area(s)
where Reseller maintains its bona fide sales and
administrative office(s); and
(ii) Such agents, subagents or other resellers shall be required
to comply with all of the terms and conditions of this
Agreement; and
(iii) Reseller shall remain primarily liable for compliance with
all terms and conditions of this Agreement, including all
payments due to MobileComm for Subscriber PINs and system
usage of such agents, subagents or other resellers.
(h) Reseller will provide all sales and support activities and pager
equipment to Subscribers at Reseller's expense.
(i) Reseller shall submit to MobileComm documentation regarding each
Subscriber activation, change of equipment, or disconnect associated
with Reseller's account, by facsimile on a form similar to Exhibit 2
attached hereto within three (3) business days of initiation of any of
the foregoing events provided, however, if the agent utilizes the
Automated Access System consistent with MobileComm requirements, such
documentation shall not be required.
ARTICLE VI
ADVERTISING AND PROMOTION
Subject to this paragraph, Reseller shall not use the name MobileComm
or otherwise refer to MobileComm or the Nationwide Messaging Services using the
name "MobileComm" in any advertising or marketing material. To assure such
compliance, Reseller shall submit all advertising or marketing material to
MobileComm and shall not use such materials without MobileComm's prior written
approval. MobileComm reserves the right to prohibit the use of such material in
its sole discretion. MobileComm may withdraw its approval of the use of any
such materials at any time upon fifteen (15) days' notice.
ARTICLE VII
TRADE NAME AND TRADEMARK
(a) Reseller and MobileComm each recognize the right, title and interest
of MobileComm or its affiliated and associated companies to all service
marks, logos, trademarks and trade names used on or in connection
with the MobileComm's business activities and agrees not to
engage in any activities or commit any acts, directly or indirectly,
which may contest, dispute or otherwise impair such right, title and
interest. Reseller hereby agrees that all its uses of such service
marks, logos, trademarks and trade names shall only be according to
standards furnished by MobileComm and shall be in such manner as to
inure at all times to the benefit of MobileComm. Use of MobileComm's
and/or any affiliate of MobileComm's service marks, logos, trademarks,
and trade names in connection with the sale of Nationwide Messaging
Services is expressly prohibited.
(b) This Article shall survive termination of this Agreement, and, in the
event of termination, no service marks, logos, trademarks or trade
names of Reseller shall be registered or used which are the same as, or
confusingly similar to, service marks, logos, trademarks and trade
names of MobileComm. Use or
4
5
ownership of any trade name or style containing any xxxx or trade name
confusingly similar to that of MobileComm shall be surrendered or
abandoned.
ARTICLE VIII
BILLING ADJUSTMENTS
(a) MobileComm may suspend or reduce, in whole or in part, the provision of
the Services or any of its obligations hereunder, for the time and to
the extent such suspension or reduction is occasioned by an event or an
act of God, war, fire or other casualty, acts of any governmental body
or similar causes or conditions beyond MobileComm's reasonable control
and such event is not due to the negligence or willful act of
MobileComm (any such act is hereinafter referred to as an "Event"). Any
Nationwide Messaging Services not provided by reason of the Article
VIII shall as soon as possible be returned by MobileComm upon the
termination, cessation or elimination of the Event. MobileComm agrees
to use its best efforts to restore, to the extent possible, the
Nationwide Messaging Services reduced or suspended as a result of the
Event.
(b) If an Event has occurred, MobileComm will pro rate the monthly charges
involved for the Services and Facilities rendered useless and
inoperative by reason of the Event during the time the interruption
continues in excess of twelve (12) hours from the time it is reported
to MobileComm. No adjustment shall be made for accumulated periods of
noncontinuous interruption of fewer than twelve (12) hours.
(c) The pro rata adjustment shall be a fraction of the charges specified
in Exhibit 1. The numerator of such fraction shall be the total
number of continuous hours of the interruption to the Service in
excess of 12 hours from the time the interruption is reported to
MobileComm (a period of time less than 30 minutes shall be disregarded
and a period in excess of 30 minutes shall be considered an additional
hour) and the denominator of such fraction shall be 720 hours.
ARTICLE IX
RESTRICTIONS ON USE
(a) Reseller shall not misuse the Services. For purposes of this Article,
misuse of Services includes, but is not limited to, obtaining or
attempting to obtain Services by rearranging, tampering or making
unpermitted connection with any Facilities of MobileComm, or the use
of a PIN for more than one pager unless such PIN is used for a
pre-established group call and Reseller is appropriately billed for
the group call format.
(b) Any attempt to misuse Services by Reseller shall be deemed a material
breach of this Agreement, and failure of Reseller to remedy such breach
within fifteen (15) days of receipt of notice of same shall be deemed
a material breach of this Agreement.
ARTICLE X
PROPRIETARY INFORMATION: CONFIDENTIALITY; NON-SOLICITATION
(a) Each party acknowledges that, during the term of this Agreement, it
will be provided with confidential information relating to the
business policies and procedures and products of the other party.
Each party agrees that it will not use such confidential information
for any purpose except the performance of this Agreement, and that it
will not disclose any such confidential information to any third party
unless such disclosure is authorized in advance by the other party in
writing or is required by Order of the Court or regulatory agency of
competent jurisdiction with notice of same being given to the other
party. Each party agrees that the terms and conditions of this
Agreement are confidential and restricted by this Article X(a)
5
6
as to their disclosure to any third party.
(b) The parties agree that the sales force of Reseller may sell nationwide
messaging services other than those offered by MobileComm; provided
that Reseller complies with the following conditions:
(i) Reseller agrees that, during the term of this Agreement, it
will not directly or indirectly be involved in actions to
induce or solicit any Subscriber to transfer from the
Nationwide Messaging Service to the paging service of any
other company, including but not limited to, transmitting or
causing to be transmitted any page, solicitation or
information, (whether electronic, oral, written, or otherwise)
regarding the paging offering of any other person, company, or
entity which are in any way devised to or reveal to any such
company, entity or person the name, address, telephone number
and/or PINs of any Subscribers utilizing the Facilities.
(ii) Reseller determines to transfer Subscribers hereto to a paging
system of some entity or person other than MobileComm, or
Reseller's own system without first being contacted by
Subscriber expressing a desire to subscribe to another
Nationwide Paging System. MobileComm shall have a Right of
First Refusal as provided in Article XIII(f) to purchase the
Subscriber accounts under this Agreement; provided, however,
this subparagraph (b)iii shall not prohibit Reseller's right
to sell or transfer such Subscriber accounts if MobileComm has
not exercised such Right of First Refusal within the time
provided by this Agreement and such transfer is consistent
with this Agreement.
(c) Reseller's noncompliance with such conditions shall be considered to be
a material breach of this Agreement.
(d) Each party agrees not to knowingly solicit or employ the employees of
the other party without the written consent of the other party to the
extent consistent with applicable state and federal law.
ARTICLE XI
WARRANTY AND LIMITATION OF LIABILITY
(a) MOBILECOMM MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING ITS
FACILITIES OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. IT IS
INTENDED BY THE PARTIES THAT THIS SECTION SHALL APPLY TO RESELLER OR
ANY OF RESELLER'S SUBSCRIBERS AND SHALL BE CONSTRUED IN CONFORMITY WITH
THE LAWS OF THE STATE OF GEORGIA.
(b) In recognition that Service interruptions in the telecommunications
industry are frequently due to circumstances beyond a carrier's control
and difficult to assess as to cause or resulting damages, and in
recognition that the Reseller is better positioned to insure against
any such damage, the parties agree that the liability of MobileComm for
damages arising out of mistakes, omissions, interruptions, delays,
errors or defects in transmission shall not exceed the actual resulting
loss and shall in no event exceed an amount equivalent to the
proportionate charge to the Reseller for the period of the Service
disruption or the amount of $500, whichever is lesser.
6
7
(c) MobileComm shall not be liable for any act or omission of Reseller or
any other entity furnishing equipment, software or services to
Reseller or to Subscribers, nor shall MobileComm be liable for any
damages or losses due to the fault or negligence of the Reseller or
Subscriber or for the failure of said equipment, software or services.
(d) All equipment and Services provided by Reseller to Subscribers must be
compatible with the Facilities. MobileComm shall provide at least one
hundred twenty (120) days' written notice of any system change which
is anticipated to affect such compatibility. In no event shall
MobileComm be liable for any incompatibility resulting from such
change.
ARTICLE XII
TERMINATION
(a) This Agreement and the Services provided hereunder may be terminated
as follows:
(i) by the mutual written consent of Reseller and MobileComm:
(ii) by either Reseller, on the one hand, or MobileComm, on the
other hand, in writing, without liability to the terminating
party on account of such termination (provided that the
terminating party is not otherwise in default or in breach of
this Agreement), if the other party shall (a) fail to perform
in any material respect its agreements contained herein, or
(b) materially breach any of its obligations hereunder, or
(c) if an Event or Default has occurred and has not been
cured in accordance with the applicable cure period.
(b) Termination, regardless of cause or nature, shall be without
prejudice to any other rights or remedies of the parties and shall be
without liability for any loss or damage occasioned thereby.
Termination of this Agreement for any cause shall not release either
party from any liability which, at the time of termination, has
already accrued to the other party, or which may acrue in respect of
any act or omission prior to termination or from any obligation
which is expressly stated herein to survive termination. MobileComm
and Reseller agree to cooperate to enable all Subscribers to continue
Services with minimal disruption after termination; provided, that
MobileComm shall be under no obligation to ensure that any Subscriber
is so able to continue to utilize its Services or to arrange for any
transfer of equipment owned or leased by Reseller.
(c) This Agreement shall terminate automatically and without liability or
further obligation on the part of either party if MobileComm's
Nationwide Messaging licenses or other authority to operate the
Nationwide Messaging System are revoked, suspended or not renewed;
provided, however, that if such revocation, suspension or nonrenewal
does not apply to all of the Facilities, this Agreement shall terminate
only as to those Facilities for which licensing or other authority
does not exist.
ARTICLE XIII
DEFAULT; TRANSFER OF SUBSCRIBERS; PURCHASE OF EQUIPMENT
(a) The following shall be deemed to be an Event of Default:
(i) Failure by either party to observe or timely perform in any
material respect any of the covenants of this Agreement and
the failure to cure, as applicable, pursuant to this
Agreement; or
(ii) Breach of a representation or warranty made by either party in
this Agreement or any other
7
8
written agreement, statement, certificate or document executed pursuant to this
Agreement which materially adversely affects the other party; or
(iii) Insolvency by either party or assignment for the
benefit of creditors, or application for, consent to, or
sufferance of the appointment of a trustee, receiver or
similar officer for a significant portion of their respective
property or assets, or commencement of any proceeding by or
against either party seeking reorganization, rehabilitation,
liquidation or other relief under the bankruptcy, insolvency
or similar debtor-relief statutes under the laws of the
United States or any state thereof, as now existing or
hereafter amended.
Upon the occurrence of an Event of Default by Reseller, or MobileComm,
as the case may be, the non-defaulting party shall notify the other in
writing of the Event of Default ("Default Notice"). After receipt of
the Default Notice and the Event of Default is not cured as provided
herein, this Agreement may be terminated by MobileComm or Reseller, as
the case may be; provided, however, that where an Event of Default
(other than with respect to non-payment by Reseller for which the cure
period does not apply) cannot be cured within fifteen (15) calendar
days despite the exercise of due diligence, the period for such cure
shall be extended, but in no event, shall the period allowed for cure
exceed forty-five (45) calendar days. Only upon the occurrence of an
Event of Default by Reseller, MobileComm shall also have the right to
contact Reseller's Subscribers directly in order to notify them of the
imminent termination of Service and of their options with respect to
Nationwide Messaging Services and Reseller shall cooperate fully with
MobileComm to effect this notification.
(i) Upon termination of this Agreement by Reseller, Reseller shall
only have the obligation to make payment to MobileComm in
accordance with Article IV hereof for Services rendered by
MobileComm to the Reseller through the date of termination.
(ii) Upon the termination of this Agreement by MobileComm only
after the occurrence of an Event of Default by Reseller,
MobileComm may either terminate its Services or, after review
of Reseller's account record as provided for below, proceed
to acquire Reseller's Subscriber accounts and associated
leased pagers. SHOULD MOBILECOMM TERMINATE ITS SERVICES, IN
NO EVENT SHALL MOBILECOMM BE LIABLE, EITHER IN TORT, EQUITY,
CONTRACT OR OTHERWISE, FOR (i) LOSS OF USE, REVENUE OR
PROFITS; (ii) COSTS OF CAPITAL OR OF SUBSTITUTE USE OF
PERFORMANCE; (iii) DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; OR (iv) ANY OTHER LOSS OR CLAIM FOR
ANY SIMILAR TYPE OF DAMAGES TO RESELLER'S SUBSCRIBERS OR TO
ANY OTHER THIRD PARTIES.
(c) In the event MobileComm determines to acquire Reseller's Subscribers
in accordance with Article XIII(b)(ii) above, MobileComm shall acquire
the Subscribers as follows:
(i) The purchase price for Reseller provided pagers leased to
Subscribers whose accounts are purchased by MobileComm
pursuant to Articles (ii) and (iii) below shall be an amount
equal to the net book value of the pagers as of the last day
of the calendar month preceding termination of the Agreement,
applying depreciation to zero dollars on a straight-line
basis over forty-eight (48) months;
(ii) The purchase price for each active PIN in service associated
with an account which is current (i.e., having no past-due
balance on the closing date) exclusive of paging equipment
shall be $100.00. For active PINS in service associated with
an account which has only a balance which is no more than
thirty (30) days past due, the purchase price shall be
$75.00. No payment shall be made for any account which is
more than thirty (30) days past due. Payment under this
8
9
subparagraph (d) and subparagraph (d)(i) above shall be
fifty (50%) in cash on the closing date, with the balance
payable thirty (30) days from the closing date. In no event
shall the purchase price relate to more than one active PIN
per pager in service. There shall be no additional payment
for group calls or other multiple PIN arrangements.
(iii) Reseller and MobileComm shall act to conclude the purchase
as soon as practicable, MobileComm will be provided, within
five (5) days of termination of this Agreement, necessary
access to Reseller's Subscriber and leased paging equipment
records, including accounts receivable and aged balances, in
order to evaluate the value and status of the accounts and
equipment. During the period in which MobileComm considers
whether to purchase the accounts and equipment and during
the transfer period, the parties will continue to provide
Service to the Subscribers in due course and will do nothing
to adversely affect Reseller's Subscriber account base.
(d) In the event a petition for relief in bankruptcy is filed by or
against Reseller, Reseller shall pay MobileComm all post-petition
charges according to the terms of this Agreement. If at any time
prior to assumption of this Agreement by Reseller pursuant to Section
365 or other applicable provisions of the Bankruptcy Code, Reseller
defaults in making any payment when due for post-petition charges,
MobileComm may give notice to Reseller to cure such defaults and to
provide assurance of due performance of Reseller's obligations under
the terms of this Agreement. Such adequate assurance of due
performance shall be the payment by Reseller of a deposit with
MobileComm equal to two months' average charges under this Agreement
based on the charges to Reseller in the preceding six (6) month
period. Reseller and MobileComm agree that upon the expiration of
fifteen (15) days from the receipt of the notice, if Reseller has not
cured such defaults and provided adequate assurance of performance,
MobileComm may suspend and discontinue all administrative activity
otherwise provided to reseller under this Agreement until such time as
the defaults are cured and adequate assurance of performance is
furnished by Reseller. Reseller and MobileComm further agree that if
Reseller defaults in paying any post-petition charge when due and if
the default is not cured within fifteen (15) days from the receipt of
the notice, MobileComm's rights under this Agreement will be
adequately protected only by Reseller's curing such defaults and
providing adequate assurance of due performance as more fully set
forth above. Finally, following assumption of the Agreement by
Reseller, MobileComm shall have all rights and remedies in the Event
of Default as provided by subparagraph (b) above.
(e) To ensure an orderly continuation of Service to the
Subscribers, in the event Reseller desires at any time during the term
of this Agreement to sell or transfer the Subscriber accounts
subscribed hereunder and/or control of Reseller or said accounts
MobileComm shall have a right of first refusal to meet any bona fide
written offer to purchase those assets, accounts, and accompanying
leased pagers, solely related to Nationwide Messaging Services being
provided under this agreement, free and clear of encumbrances ("Right
of First Refusal") and to enter into a transfer arrangement materially
similar to that proposed in the written offer. Within fifteen (15)
days of Reseller's receipt of any bona fide written offer dealing with
the sale or transfer of accounts and/or control of Reseller or said
accounts, Reseller shall provide MobileComm with a true copy of such
offer. MobileComm shall be provided timely access to all pertinent
Subscriber and leased equipment records, including accounts receivable
and aged balances, and other documents and materials which it requests
in order to evaluate its option. Within thirty (30) days of
MobileComm's receipt of the aforesaid documents and materials,
MobileComm shall notify Reseller of its desire to exercise its Right
of First Refusal and the parties will endeavor to conclude the
purchase or transfer as soon as practicable. During the closing
period, the parties will use their best efforts to avoid any
interruption of Service to Subscribers or any action which adversely
affects Reseller's Subscriber account base.
9
10
(f) In the event Reseller does not obtain a bona fide third party offer
per to purchase Subscriber accounts, and this notice of non-renewal by
Reseller is given in accordance with Article III, MobileComm shall,
within thirty (30) days of notification of such non-renewal, or within
ninety (90) days of expiration of the Agreement, notify Reseller of
its intention to purchase the Subscriber accounts and leased equipment
based on the following formula:
(i) The purchase price for Reseller provided pagers leased to
Subscribers whose accounts are purchased by MobileComm
pursuant to Articles (ii) and (iii) immediately below shall
be an amount equal to the net book value of the pagers as of
the last day of the calendar month preceding the closing
date, applying depreciation to zero dollars on a
straight-line basis over forty-eight (48);
(ii) The purchase price for each active PIN in service associated
with an account which is current (i.e., having no past-due
balance greater than 30 days on the closing date), and for
which no disconnect notice has been either transmitted or
received by Reseller, shall be an amount equal to six (6)
times Reseller's monthly billing to such Subscribers, for
airtime Service charges only, for the month immediately
preceding the closing date. For each active PIN in service
for an account which has a balance which is no more than
sixty (60) days past due, the purchase price shall be an
amount equal to four (4) times Reseller's monthly billing to
such Subscribers, for airtime Service charges only, for the
month immediately preceding the closing date. No payment
shall be made for any other account. Payment under this
subparagraph shall be one hundred percent (100%) in cash on
the closing date. In no event shall the purchase price
relate to more than one active PIN per pager in service
there shall be no additional payment or other multiple PIN
arrangements.
(iii) The parties shall act to conclude the purchase as soon as
practicable. MobileComm will be provided, in timely
fashion, necessary access to Reseller's Subscriber and
leased paging equipment records, including accounts
receivable and aged balances, and other materials it
requests in order to verify the value and status of the
accounts and equipment. During the transfer period, the
parties will continue to provide Service to the Subscribers
in due course, and will do noting to diminish Reseller's
Subscriber account base.
(g) In the event this Agreement shall terminate for reasons not otherwise
provided for in this Article XIII and such termination not be the
result of MobileComm's default or an election of MobileComm,
MobileComm shall within ninety (90) days of such termination notify the
Reseller of its intention to purchase the subscriber accounts and
leased equipment based upon the same terms and conditions as set forth
per Article XIII(b)(i), (ii), and (iii). (iv) Notwithstanding the
above, MobileComm shall not have the right to purchase any subscriber
accounts and leased equipment if notice of non-renewal is given by
MobilComm in accordance with Article III.
(h) In the event of any assumption by, purchase by, or transfer to
MobileComm of Reseller's Subscriber accounts under this Article XIII,
neither Reseller nor any principal, director, owner, employer, agent,
majority stockholder nor any affiliate or successor corporation or
successor entity of Reseller, or employees of same, shall solicit the
Subscriber accounts, for as long as they remain on MobileComm's
system, in an effort to subscribe such accounts to any identical or
similar services for a period of one (1) year from such assumption,
transfer, or purchase.
(i) The terms and provisions of this Article shall survive termination of
this Agreement.
10
11
ARTICLE XIV
MISCELLANEOUS
(a) Tariffs. Subject to the provisions of Article IV(f), in the event that
any of the Services or the charges made therefore are currently
subject, or at any time become subject, to any regulation or tariff,
then the terms and conditions of this Agreement, including the charges
set forth in Exhibit 1, shall be deemed amended to conform to any
conflicting terms and conditions in effect under such regulation or
tariff; provided, however, that all non-conflicting terms and conditions
of this Agreement shall remain valid and effective.
(b) Applicable Law. The validity, construction and performance of this
Agreement shall be governed by and interpreted in accordance with the
laws of the State of Georgia.
(c) Effects of Headings. Headings to articles and paragraphs of this
Agreement are to facilitate reference only, do not form a part of this
Agreement, and shall not in any way affect the interpretation hereof.
(d) Assignment or Transfer. No rights, control, or obligations
hereunder, including Reseller's accounts with its Subscribers, shall be
assigned or transferred, in whole or in part, which shall not be
unreasonably withheld by Reseller to any person, firm, corporation or
entity without the prior written consent of MobileComm: provided,
however, Reseller may so transfer or assign its accounts with its
Subscribers if MobileComm does not exercise any rights it might have to
purchase same within the time provided for herein; and provided further,
that MobileComm may assign, transfer, or transfer control of this
Agreement, its Facilities, Nationwide Messaging Services, business,
accounts and subscribers to any person, partnership, firm, corporation,
or entity without the prior consent of Reseller.
(e) Non-Waiver. The waiver, express or implied, by either party, of any
rights or of any failure to perform or breach by the other party shall
not constitute or be deemed a waiver of any other right hereunder or any
other failure to perform or breach by the other party, whether of a
similar or dissimilar nature.
(f) Parties Status. Reseller is an independent contractor. Neither party
is authorized to act as an agent for, or legal representative of, the
other party nor shall either party have authority to assume or create
any obligation on behalf of, in the name of, or binding upon, the other
party. Reseller shall not represent itself as an agent of MobileComm.
(g) Indemnification. Each party shall indemnify and hold the other
harmless in the event of any claim, lawsuit or damages resulting from
negligence, misconduct or breach by the indemnifying party. The
indemnification shall include attorneys' fees. The indemnified party
shall be able to participate in the defense of any claim or lawsuit.
(h) Notice. Except as otherwise provided in this Agreement, all notices
required or permitted to be given shall be certified mail, postage
prepaid, in any post office in the United States, where receipt thereof
is confirmed and shall be addressed per the introductory paragraph of
this Agreement, or may be sent by
11
12
facsimile or by express courier. Either party may change its address
by a notice given to the other party in the manner set forth above.
All notices shall be effective upon receipt, except as otherwise
provided herein.
If to MobileComm: MobileComm Nationwide Operations, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
If to Reseller: Mercury Cellular Telephone Company
Xxx Xxxxxxxxx Xxxxx, XX Xxxxx, Xxxxx 0000
P.O. Drawer 3104
Lake Charles, LA 70602-3104
(i) Severability. If any part of this Agreement is for any reason declared
invalid by court order or by order of any regulatory agency, the 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 the intention of the parties
that they would have executed the remaining portion of this Agreement
without including any part or portion which may, for any reason, be
declared invalid.
(j) Nonexclusive Arrangement. Reseller recognizes and agrees that
MobileComm and its affiliates will be marketing and providing the
Services to other resellers and/or entities and directly to Subscribers
in the market areas covered herein. MobileComm may, at its sole
discretion, add other Resellers into such market areas and directly
solicit Subscribers in such market areas.
(k) Non-Conflict. Reseller warrants that no obligation provided for herein
is in conflict with any other contractual obligation of Reseller with
any third party.
(l) Force Majeure. MobileComm's performance under this Agreement shall be
excused if non-performance is due to government orders, equipment
failure, inability or delay in securing equipment, civil commotions,
acts of nature, weather disturbances or adverse weather conditions, or
other circumstances beyond MobileComm's reasonable control.
(m) Binding Effect. This Agreement and the rights and obligations of the
parties shall inure to the benefit of and be binding upon any successor
or assignee and any subsidiary, affiliate, agent, reseller or related
entity.
(n) Remedies. Any breach of this Agreement will result in immediate and
irreparable injury and will authorize recourse to injunction or
specific performance; and will further authorize to all other legal or
equitable remedies, subject to the terms of the following paragraph.
(o) Arbitration. If during the term of this Agreement any dispute arises
as to its interpretation or enforcement, the parties shall try to
resolve the dispute in a good faith, expeditious and amicable manner.
If the parties are unsuccessful, however, the parties waive all rights
to litigation and agree to submit the dispute to binding arbitration
under the rules and regulations of the American Arbitration
Association. The site of
12
13
the arbitration shall be MobileComm's offices in Jackson, Mississippi.
Judgment shall be entered upon the arbitrator's award by petition to
the appropriate court should award not be performed by the party against
whom the award is rendered.
(p) Controlling Document. THE TERMS AND CONDITIONS OF THIS AGREEMENT
SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES INCLUDING PRIOR OR
CONTEMPORANEOUS REPRESENTATIONS OF SALES REPRESENTATIVES OR OTHER
MOBILECOMM PERSONNEL, WHETHER ORAL OR WRITTEN, LATER-ISSUED PURCHASE
ORDERS, ACCEPTANCES, CORRESPONDENCE AND SIMILAR DOCUMENTS. THE ONLY
EXCEPTIONS ARE SUBSEQUENT AGREEMENTS EXECUTED ON MOBILECOMM-STANDARD
PRINTED FORMS WITHOUT CHANGE, OR SUBSEQUENT AGREEMENTS WHICH ARE AT
VARIANCE WITH THIS AGREEMENT WHICH ARE MADE IN WRITING AND SIGNED BY A
DULY AUTHORIZED OFFICER OF MOBILECOMM AND A DULY AUTHORIZED OFFICER OF
RESELLER AND WHICH ARE SPECIFICALLY DESIGNATED AS AN AMENDMENT HEREOF.
(q) Effective Date. The effective date of this Agreement shall be the date
of execution by MobileComm's authorized officer. This Agreement shall
be of no effect prior to such execution.
(r) Insurance. Both parties will at all times during the term of this
Agreement keep in full force and effect liability insurance, including
but not limited to errors and omissions coverage, applicable to
Subscribers and to Services provided hereunder with limits of no less
than One Hundred Thousand Dollars ($100,000) per occurrence. Within
thirty (30) days of the effective date of this Agreement, Reseller shall
provide MobileComm with a certificate or other acceptable evidence of
such insurance, together with evidence of payment of all premiums.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
RESELLER MOBILECOMM NATIONWIDE OPERATIONS, INC.
Mercury Cellular Telephone Company
----------------------------------
Name of Reseller
By: /s/ XXXX XXXXX By: /s/ XXXXX XXXX
------------------------------- -------------------------------------
Xxxx Xxxxx
---------------------------------- -------------------------------------
Print Name Print Name
Title: V.P./General Manager Title:
---------------------------- ----------------------------------
13
14
Nationwide Messaging Reseller Amendment
Dated 12-30-92
15
NATIONWIDE MESSAGING RESELLER
AMENDMENT
For and in consideration of the promises contained herein and other
good and valuable consideration, including the terms and conditions of this
amendment, the Agreement ("Agreement") dated 12/19/94 between Mercury Cellular
Telephone Company ("Reseller") and MobileComm Nationwide Operations, Inc.
("Carrier"), is hereby amended to add the attached Exhibit I to establish rates
to be paid by Reseller for paging utilizing the 931.8875 Mhz frequency
("Nationwide Messaging"). This Exhibit only applies to such Nationwide
messaging.
For purposes of calculation of the quantities associated with the
pricing set forth in the attached exhibit, each in-service local Number
provided to Reseller by Carrier, Carrier's parent (Mobile Communications
Corporation of America), or parent's subsidiaries (collectively "MobileComm"),
by agreement between MobileComm and Reseller and not on 931.8875 Mhz ("local
Number") shall be counted as one-sixth of a PIN, and each in-service PIN under
the Agreement on 931.8875 Mhz ("Nationwide Messaging Services") shall be counted
as one PIN. Provided, however, that subject to the terms and conditions of the
Agreement, through December 31, 1994, Reseller shall be treated as having 1000
PINs in service on the Nationwide Messaging Services, irrespective of the
actual quantity of PINs in service, for purposes of ascertaining pricing
associated with quantities as reflected on the attached exhibit.
After December 31, 1996 1000 PIN promotion referred to above shall
expire and subject to the terms of the Agreement or other agreements between
Reseller and MobileComm, in the event Reseller defaults in its obligations under
such Agreement or agreements, or the number of local Numbers decreases below
the number of local Numbers actually in service as of the date of execution of
this Amendment (______local Numbers), the rates for Nationwide messaging shall
be calculated solely based upon the actual Nationwide PINs in service until
such time that: (1) any applicable default is cured, as permitted under the
Agreement or agreement(s) between MobileComm and Reseller; and, (2) the number
of local Numbers equals or exceeds the number of local Numbers in service at
the time of the execution hereof (_______local Numbers), at which time
Reseller's rates shall
16
again be calculated based upon one-sixth of a PIN for each local Number in
service and one PIN for each Nationwide PIN in service for purposes of pricing
on the attached exhibit, beginning with the next applicable billing period.
No other amendment is made to the Agreement except as set forth herein.
Executed and Agreed this the 19th day of December, 1994.
RESELLER CARRIER
Mercury Cellular Telephone Company MobileComm Nationwide Operations, Inc.
----------------------------------
Name of Reseller
By: /s/ XXXX XXXXX By: /s/ [ILLEGIBLE]
------------------------------- -----------------------------------
Signature Signature
XXXX XXXXX
---------------------------------- --------------------------------------
Print Name Print Name
V.P./General Manager
---------------------------------- --------------------------------------
Title Title
17
EXHIBIT 10.4
[MERCURY CELLULAR & PAGING LETTERHEAD]
April 10, 1995
Xx. Xxxx Xxxxxxxx
Arch Nationwide Paging
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
RE: Arch Nationwide Paging Reseller Agreement
Dear Xxxx:
Enclosed is the executed copy of the Reseller Agreement, along with
Mercury's proposed stickers. We are sending a Purchase Order for an initial
purchase of twenty (20) pagers to Eva.
Thank you for your hard work. Let me know when you will be in the
area.
Sincerely,
Xxxxxx Xxxxxxxx
Director of Research and Development
JSH/ph
Enclosure
