EXHIBIT 10.3
THIRD AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
THIS THIRD AMENDED AND RESTATED SATELLITE SERVICES SUPPLEMENTAL
AGREEMENT (this "Agreement") is made and entered into as of August 1, 2001 (the
"Execution Date") by and between ITC DeltaCom Communications, Inc. ("ITCD"), as
successor in interest to ITCD Systems, Inc., ITCD, and Weblink Wireless, Inc.
("Weblink"), as successor in interest to Weblink Wireless, Inc. ("Weblink").
RECITALS
WHEREAS, ITCD and Weblink are parties to a Second Amended and Restated
Satellite Services Supplemental Agreement, dated as of July 1, 1998, as amended
by the First Amendment thereto dated September 24, 1998, and Second Amendment
dated September 24, 1998 (the "Existing SSS Agreement"), concerning the purchase
of certain satellite services;
WHEREAS, Weblink and ITCD have entered into an Amended and Restated
Master Agreement dated December 18, 1997 ("Existing Master Agreement");
WHEREAS, on May 23, 2001, Weblink filed for protection under Chapter 11
of the United States Bankruptcy Code, in the U.S. Bankruptcy Court, Northern
District of Texas, Dallas Division (Case No. 01-34275-SAF-11) ("Bankruptcy
Case"), and pursuant to an Order issued by the bankruptcy court, Weblink has
assumed the Existing Master Agreement, and has entered into a new Master
Agreement dated August 1, 2001; and
WHEREAS, pursuant to the Order of the bankruptcy court, Weblink has
assumed the Existing Supplemental Services Agreement; and
WHEREAS, the parties desire to amend the Existing Supplemental Services
Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration received and acknowledged, ITCD and Weblink agree as
follows:
During the Satellite Services Term, ITCD shall provide Weblink's
Satellite Capacity in accordance with, and Weblink shall be bound by, the terms
and conditions set forth below:
A. SATELLITE SERVICES TERM:
1. "Commencement Date": 12:00 a.m. (Eastern Time) on August 1, 2001.
2. "Termination Date": 11:59 p.m. (Eastern Time) on July 31, 2003, unless
earlier terminated pursuant to this Agreement.
B. WEBLINK'S SATELLITE CAPACITY: ITCD shall provide satellite transponder
capacity for the VNI Network according to the terms hereof. From the
Commencement Date through the Termination Date Weblink's Satellite Capacity
shall be provided through Ku-band transponder capacity leased by ITCD on
Satellite(s) in accordance with Schedule 1 attached hereto.
C. PRICE: Weblink shall pay to ITCD a monthly satellite capacity payment for
Weblink's Satellite Capacity, in accordance with Section J below and
Schedule 1 hereto. To the extent ITCD receives credits from the Satellite
Operator by reason of service interruption affecting the Satellite Capacity
provided hereunder for a period of one (1) hour or more (measured from the
time ITCD receives notice
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thereof from Weblink), ITCD agrees to promptly credit Weblink with credits
provided by the Satellite Operator for such interruption. The credit shall
be equal to a pro rata portion (based on total bandwidth of the Satellite
Capacity contracted for by Weblink on the Satellite compared to total
bandwidth of the Satellite Capacity contracted for by ITCD for its own or
third party use on the Satellite) of all amounts credited by the Satellite
Operator to ITCD with respect to any interruption in service. ITCD will
apply the credit promptly to any outstanding invoice between ITCD and
Weblink under this Agreement or any other agreement between ITCD and
Weblink, as selected by ITCD in its sole discretion.
D. RESERVED.
E. CERTAIN DEFINITIONS
1. "Affiliates" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common
control (i.e., the power to direct affairs by reason of ownership of
voting stock, by contract or otherwise) with such Person and any member,
director, officer or employee of such Person.
2. "FCC" shall mean the Federal Communications Commission or any successor
organization.
3. "Satellite(s)" shall mean GE-4, and GE-1 and Telstar 4, through which
ITCD will provide Weblink's Satellite Capacity.
4. "Laws" shall mean all international, federal, state, local and other
laws, rules and other regulations, including, without limitation,
those issued by the FCC.
5. "Person" shall mean any person or entity, whether an individual,
trustee, corporation, general partnership, limited partnership, trust,
unincorporated organization, business association, firm, joint venture,
governmental agency or authority, or otherwise.
6. "Transponder(s)" shall mean a component of the Satellite(s) which, for a
particular frequency band, receives, amplifies, translates frequency and
retransmits radio signals. Each Transponder contains one traveling wave
tube amplifier (a "TWTA"). Transponder shall also mean, for purposes of
this definition, any replacement or alternate components thereof.
7. "Satellite Capacity Failure" shall mean the failure of ITCD to provide
Weblink's aggregate Satellite Capacity on a Satellite(s)(due to a
Satellite or Transponder failure, including relocation of orbital
position by FCC order). Determination that a Satellite Capacity Failure
has occurred shall be made by ITCD in its sole discretion.
8. "Usage" or "Use" shall refer to radio transmission to, or utilization
of, the Satellite(s) for the VNI Network.
9. "Satellite Operators" shall mean the owner(s) if the Satellite(s)
specifically authorized by the FCC to operate the Satellite(s) and
through whom ITCD makes available the satellite capacity required for
the VNI Network.
10. "Primary Hub" shall mean the Equipment at ITCD's primary hub location in
Atlanta, Georgia which will be used to access Weblink's Satellite
Capacity to run the VNI Network.
11. "Alternate Hub" shall mean the Weblink equipment Weblink sets up at a
site to be determined which will be used to access Weblink's Satellite
Capacity to run the VNI Network in the event of a failure of the Primary
Hub.
12. "Weblink's Satellite Capacity" shall mean the satellite capacity to be
provided hereunder to Weblink (expressed as SCUs or High Power SCUs)
during the Satellite Services Term, as more particularly described in
Paragraph J.2. hereof and Schedule 1 hereto. In addition, if Weblink
requests additional satellite capacity as described in Schedule 1
hereto, subject to availability of such satellite capacity, such
additional satellite capacity shall be included upon commencement of
service for such satellite capacity.
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13. "Equipment" shall mean the Very Small Aperture Satellite Terminals
(VSATs) and associated hub hardware and remote site hardware including
embedded software provided by ITCD under the Master Agreement.
14. "Satellite Capacity Unit" or "SCU" - One SCU equals 800 kHz of
bandwidth, which is normally configured as one (1) 128 Kbps outbound
channel and two (2) 64 Kbps inbound channels. Using standard power
levels and BPSK modulation, the percentage of available bandwidth in the
transponder that is utilized by a SCU is equal to the percentage of the
power available in the transponder utilized by that SCU.
15. "High Power SCU" - One High Power SCU consumes twice the satellite
capacity of one standard power SCU. Using high power levels and BPSK
modulation, the percentage of available power in the transponder that is
utilized by a High Power SCU is equal to two (2) times the percentage of
available bandwidth in the transponder that is utilized by a SCU. A High
Power SCU has a power density of not less than 9 dBW/4KHz and requires
authorization from the FCC.
16. "VNI" or "VNI Network" shall mean the VSAT network infrastructure
consisting of the Equipment and software provided by ITCD under the
Master Agreement.
17. "GE-l Satellite" shall mean a communications satellite owned and
operated by GE and positioned at 103 degrees west longitude orbital
position.
18. "GE-4 Satellite" shall mean a communications satellite owned and
operated by GE and positioned at 101 degrees X.X. orbital position.
19. "Telstar 4 Satellite" shall mean a communications satellite owned and
operated by Loral Skynet and positioned at 89 degrees west longitude
orbital position.
F. CERTAIN UNDERSTANDINGS
1. Ownership of Transponders. Weblink understands and agrees that the
Satellite Operators are the FCC-authorized operators of the Satellites.
Neither this Agreement nor the provision of Weblink's Satellite Capacity
hereunder shall, or shall be deemed to, convey title or any other
ownership interest to Weblink in or to any Satellite, any Transponder or
any part thereof. Weblink acknowledges and agrees (i) that nothing
contained in this Agreement shall prevent any sale, mortgage, or
encumbrance of any Satellite or any Transponder thereof by the owner,
(ii) that Weblink's Satellite Capacity is provided on a right to use
basis (with Equipment and services provided by ITCD under the Master
Agreement) and is not being sold to Weblink, and (iii) that neither any
Transponder nor any Satellite, nor any right to use thereof nor
any interest of any type therein, shall be subject to any claim, prior,
subsequent or otherwise, of Weblink or its creditors as a result of this
Agreement. Notwithstanding the foregoing, ITCD shall use reasonable
efforts to provide that the foregoing restrictions shall not impact or
interfere with Weblink's use of Weblink's Satellite Capacity as provided
for herein.
2. Control of Satellite. Weblink understands and agrees that the Satellite
Operator(s) shall control and provide for the operation of the
Satellite(s).
3. Communication with Satellite. All communications with the Satellite(s)
will be provided through Equipment controlled by ITCD at either the
Primary Hub; provided, however, upon the prior written request of
Weblink, ITCD shall use its reasonable efforts to obtain the consent
of each Satellite Operator to permit Weblink to exercise control of the
Equipment at the Alternate Hub, and upon obtaining such consent(s),
Customer shall have the right to make communications with the
Satellite(s) through Equipment controlled by Weblink or its nominee at
the Alternate Hub.
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G. CONTINUITY OF SERVICE
1. Preemption/Interruption of Service. Weblink recognizes and agrees with
respect to each Satellite that for technical or safety reasons, which
shall include, but shall not be limited to, (1) the protection of the
overall health or performance of the Satellite or its Transponders; (2)
the prevention of interference or cross talk; (3) the protection of
public safety; or (4) compliance with an order from the FCC or other
governmental authorities - and the existence of which the Satellite
Operator shall determine in its sole discretion - the Satellite Operator
may take the following actions: (i) preempt or interfere with Weblink's
Use of any Transponder or other component of the Satellite, (ii)
reassign TWTAs to different Transponders on the Satellite, or (iii)
reassign the frequency assignment of Weblink's Satellite Capacity.
Weblink acknowledges and agrees that any such action by Satellite
Operator may result in the preemption or interruption of the Use of
Weblink's Satellite Capacity. ITCD shall notify Weblink as soon as
reasonably practical after receipt by ITCD of oral or written notice
from the Satellite Operator concerning any such action and shall use
reasonable efforts to cause the Satellite Operator to schedule and
conduct such action so as to minimize the Satellite Operator disruption
of Weblink's Use of Weblink's Satellite Capacity. Weblink acknowledges
and agrees that if such preemption or interruption occurs, then Weblink
shall cooperate with and assist ITCD and the Satellite Operator during
such periods and Weblink's sole remedies shall be any credits provided
pursuant to Section C herein and, in the case of a Satellite Capacity
Failure, the termination of this Agreement or reduction in Weblink's
Satellite Capacity pursuant to Paragraph K herein.
2. Provision of Continuing Service. In the event of a Satellite Capacity
Failure, ITCD shall use its commercially reasonable efforts to cause the
Satellite Operator to provide Weblink's Satellite Capacity using spare
Transponder capacity on the Satellite, if available, or if such spare
capacity is unavailable, then by using an alternate Transponder on the
Satellite of the same polarity, if available. The availability of such
spare or alternate Transponder on the Satellite, on a permanent or
temporary basis, shall be determined by the Satellite Operator in its
sole discretion. The foregoing notwithstanding, Weblink's sole remedies
for any preemption of Use shall be any credits provided pursuant to
Section C herein and, in the case of a Satellite Capacity Failure, the
termination of this Agreement or reduction in Weblink's Satellite
Capacity pursuant to Paragraph K herein.
H. WEBLINK'S OBLIGATIONS
Compliance With Agreement and Laws. During the Satellite Services Term,
Weblink shall comply with the terms of this Agreement and shall be
responsible for complying with, and shall comply with all Laws applicable to
it regarding the operation and Use of the Satellites and the Transponders
and regarding Use of Weblink's Satellite Capacity. Weblink shall be
permitted to use Weblink's Satellite Capacity for any business unit,
subsidiary, or Strategic Alliance Partner of Weblink, subject to the
approval of ITCD, which shall not be unreasonably withheld; provided,
however, operation of the Equipment provided under the Master Agreement or
any other equipment used to access Weblink's Satellite Capacity, including
Weblink's Alternate Hub, must be in strict accordance with guidelines and
instructions provided by the Satellite Operator directly or through ITCD.
I. REMEDIES
1. LIMITATION OF LIABILITY
a. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR USE, ARE
EXPRESSLY EXCLUDED AND DISCLAIMED BY ITCD. WEBLINK EXPRESSLY AGREES THAT
ITCD'S SOLE OBLIGATIONS AND WEBLINK'S EXCLUSIVE REMEDIES FOR ANY CAUSE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
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LIABILITY ARISING FROM NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY ARE
LIMITED TO TERMINATION OF THIS AGREEMENT FOR THE REASONS DESCRIBED IN
PARAGRAPH G ABOVE, AND ALL OTHER REMEDIES OF ANY KIND ARE EXPRESSLY
EXCLUDED.
b. IN NO EVENT SHALL ITCD BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER FORESEEABLE OR NOT, OCCASIONED BY ANY DEFECT IN
WEBLINK'S SATELLITE CAPACITY, FAILURE OF THE WEBLINK'S SATELLITE
CAPACITY TO PERFORM OR ANY OTHER CAUSE WHATSOEVER. ITCD MAKES NO
WARRANTY, EXPRESS OR IMPLIED, TO ANY OTHER PERSON CONCERNING WEBLINK'S
SATELLITE CAPACITY AND WEBLINK SHALL INDEMNIFY ITCD FROM ANY CLAIMS MADE
UNDER ANY WARRANTY OR REPRESENTATION BY WEBLINK TO ANY THIRD PARTY.
2. Indemnification. Weblink shall indemnify and save ITCD and the Satellite
Operators harmless from all liability disclaimed by ITCD, as specified
above, to the extent such liability arises in connection with the
provision by ITCD or the Satellite Operators of facilities and/or
Weblink's Satellite Capacity or use of Weblink's Satellite Capacity
pursuant to this Agreement provided, however, Weblink shall not be
obligated to indemnify ITCD from such liability to the extent such
liability arises from the willful misconduct or gross negligence of
ITCD.
J. PAYMENTS TO ITCD
1. Payment.
a. Commencing on the Effective Date, Weblink shall pay ITCD for
satellite capacity on GE-l, GE-4 and Telstar Satellites in accordance
with Schedule 1 hereto. Customer agrees to pay ITCD for satellite
capacity $348,800 (the "Baseline Amount") via electronic wire transfer
on the seventh (7th) business day of each month (Baseline Due Date).
This Baseline Amount represents the estimated recurring monthly amount
due to ITCD for Satellite Capacity to be provided by ITCD during the
month in which the payment is made. Customer agrees to pay interest
charges of one and one half percent (1.5%) per month on any Baseline
Amount not received by the appropriate Baseline Due Date. ITCD shall
invoice Customer for actual monthly recurring charges. In the event that
in a given month Customer's actual monthly recurring charges for
Satellite Capacity are less than the Baseline Amount, Customer shall
have the right to deduct the overpaid amount from the next Baseline
Amount payment due.
b. In the event that Customer's actual monthly recurring charges for
Satellite Capacity exceeds the Baseline Amount, e.g. due to taxes (the
"Additional Amounts"), then Customer agrees to pay all undisputed
Additional Amounts within thirty (30) days after receipt of the invoice
for the same ("Additional Due Date"). Customer agrees to pay interest
charges of one and one half percent (1.5 %) per month on any Additional
Amounts not received by appropriate Additional Due Date. In the event
Customer disputes any Additional Charges, Customer shall notify ITCD in
writing prior to the Additional Due Date for such amount.
c. Pursuant to an Order entered by the Bankruptcy Court on July 20,
2001, Customer agrees that it will cure the $493,664.52 pre-petition
debt it owes to ITCD by paying ITCD such pre-petition arrearage in six
equal payments over a six month period beginning on the first Baseline
Due Date occurring after the Order affirming such payment is entered by
the Court. Each of the six monthly payments will be made via wire
transfer on the same day that Customer remits the Baseline Amount each
month until the pre-petition arrearage is cured. Customer agrees to pay
interest charges of one and one half percent (1.5 %) per month on any
such payment not received by the appropriate Baseline Due Date.
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d. Weblink's obligations to make the monthly satellite capacity payments
provided by Paragraph C above and J(2) below shall be absolute and
unconditional and shall not be affected by any circumstances, including,
without limitation, any setoff, counterclaim, recoupment, defense or
other right which Weblink may have against ITCD or anyone else for any
reason whatsoever.
e. The charges specified on Schedule 1 do not include any amounts for
sales, use, property, privilege, license, excise or similar taxes, fees
or assessments which may be levied by any governmental agency on this
Agreement, the services provided or the payments made hereunder. Any
such taxes or charges shall be paid directly by Weblink to the taxing
authority, if legally permitted. Otherwise, if required to be paid by
ITCD, the amount shall be reimbursed to ITCD by the Weblink. Upon
request, the Weblink shall provide ITCD with tax exemption certificates,
if applicable, or evidence of tax payments, if made by Weblink.
2. Required Satellite Capacity.
a. Commencing August 1, 2001, Weblink shall pay for satellite capacity
in accordance with Schedule 1 hereto. Weblink shall have the right to
designate by written notice to ITCD that a portion of Weblink's
Satellite Capacity, not to exceed ten (10) SCUs (i.e., five (5) High
Power SCUs) on either GE-1 or GE-4, shall be provided as High Power
SCUs. The provision of Weblink's Satellite Capacity as High Power SCUs
on either GE-1 or GE-4 shall be subject to availability of High Power
SCUs on such Satellite(s) and regulatory approval by the FCC. Upon
receipt of such written notice, ITCD shall pursue such regulatory
approval on a "commercially reasonable efforts" basis, at Weblink's sole
cost and expense. For purposes of the unit pricing set forth on Schedule
1, One (1) High PoWer SCU shall be equivalent to pricing for two (2)
SCUs.
b. ITCD shall use commercially reasonable efforts to resell any SCUs (in
increments of 1/4 SCUs, or 200 kHz) that Weblink specifies in writing to
ITCD to resell; provided, however, that Weblink in such written notice
irrevocably releases the SCUs for the durations of this SSS Agreement.
Weblink shall be required to continue to pay for the SCUs until such
time, if any, as ITCD is able to resell the SCUs, as set forth below in
Paragraph J(2)(c).
c. ITCD shall reduce Weblink's minimum monthly payments in the amount of
$l,625 for each 1/4 SCU that ITCD resells on GE-1 or $1,875 for each 1/4
SCU that ITCD resells on GE-4; provided, however, that ITCD resells such
SCU at a rate equal or greater than $1,625 per 1/4 SCU that ITCD resells
on GE-1 or $1,875 for each 1/4 SCU that ITCD resells on GE-4. ITCD shall
be permitted to receive payments for such resold SCUs directly from the
purchaser.
d. ITCD further agrees not to purchase additional satellite capacity for
its own use from the time that Weblink gives ITCD written notice of
released satellite capacity pursuant to Paragraph J(2)(b) above if ITCD
determines, in its reasonable discretion, that ITCD's satellite capacity
needs can be reasonably satisfied from Weblink's released satellite
capacity, and in such event ITCD shall reduce Weblink's minimum monthly
payments for satellite capacity by $1,625 for each 1/4 SCU that ITCD
uses on GE-1 or $1,875 or each 1/4 SCU that ITCD uses on GE-4.
K. TERMINATION
1. Events of Termination. This Agreement shall terminate automatically upon
the Termination Date, unless terminated earlier pursuant to one of the
following paragraphs:
a. Termination for Satellite Capacity Failure. If a Satellite Capacity
Failure continues uninterrupted for more than five (5) consecutive days,
or such other period is mutually agreed upon in writing by ITCD and
Weblink, then this Agreement may be immediately terminated by either
party by written notice to the other delivered on or before the
thirtieth day after the calendar day on
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which the Satellite Capacity Failure began; provided, however, that if
such Satellite Capacity Failure affects only one Satellite and a portion
of Weblink's Satellite Capacity remains available from other
Satellite(s), then the right of termination shall apply only to
Weblink's Satellite Capacity received hereunder from such failed
Satellite and this Agreement shall continue in force with respect to the
remaining portion of Weblink's Satellite Capacity. If so terminated,
ITCD shall refund to Weblink the amount of any prepaid monthly charges
for the terminated capacity prorated from the date of the Satellite
Capacity Failure, and ITCD shall have no other or further liability to
Weblink.
b. Cancellation for Non-Payment and Violations of Law. Notwithstanding
anything to the contrary and in addition to all other remedies ITCD may
have, ITCD may immediately cancel this Agreement and accelerate all
remaining payments due through July 31, 2003 if Weblink materially
breaches any provision of this Agreement, including for example (but
without limitation), (1) if Weblink fails to pay when due any amounts
due pursuant to this Agreement within five (5) business days after the
Baseline Due Date or Additional Due Date, as applicable, or (2) if
Weblink violates the provisions of Paragraph H.l. ("Compliance with
Laws"). Weblink hereby acknowledges and agrees that the U.S. Bankruptcy
Court, Northern District of Texas, Dallas Division (Case No.
01-34275-SAF-11) has entered an Order dated July 20, 2001, stating that
the automatic stay of 11 USC 362 has been modified such that ITCD may
immediately proceed to enforce any of its rights and remedies with
respect to Customer in the event of a post-assumption default after five
(5) business days written notice and opportunity to cure has lapsed.
Upon termination, pursuant to this Paragraph K.1.b, ITCD shall be
entitled to transfer Weblink's Satellite Capacity immediately to
whomever ITCD sees fit, Weblink shall not be entitled to any equitable
relief as a result thereof, and Weblink's exclusive remedy shall be
limited to recovery of any payments made by it to ITCD for the period of
time as to which it has been canceled, without interest, less any claim
ITCD has against Weblink by reason of such Weblink's default; provided,
however during the thirty (30) days immediately following such default,
ITCD shall (1) offer Weblink's capacity to ITCD's existing customers of
satellite capacity, and prospective customers with whom ITCD has been
negotiating the sale of satellite capacity, (2) offer Weblink's
capacity to other 2-way paging companies, and (3) request that the
satellite vendor allow ITCD to terminate Weblink's capacity without
penalty to ITCD. In the event ITCD is able to resell satellite capacity
during such thirty (30) day period to customers or potential customers
who meet ITCD's credit and other business requirements, or return
satellite capacity to the vendor without charge or penalty, then
Weblink's obligation to pay accelerated amounts as provided in the first
sentence of this paragraph shall be reduced for such resold or returned
capacity as provided in Section J.2.c.
c. Termination by Weblink. In event that ITCD fails to provide Weblink's
Satellite Capacity to Weblink as a result of the termination by a
Satellite Operator of the lease to ITCD of Ku-Band satellite transponder
capacity due to a default by ITCD, Weblink, provided that Weblink is not
in default hereunder, shall have the right to reduce Weblink's Satellite
Capacity under this Agreement to the extent of the Weblink's Satellite
Capacity received hereunder from such Satellite Operator if ITCD fails
to cure such failure within thirty (30) days after receiving written
notice of such failure from Weblink. If Weblink's Satellite Capacity is
so reduced, ITCD shall (i) refund to Weblink the amount of any prepaid
monthly charges for the terminated Weblink's Satellite Capacity prorated
from the date ITCD failed to provide such Weblink's Satellite Capacity
and (ii) provide reasonable cooperation, at Weblink's request and
expense, with any efforts by Weblink to contract directly with the
Satellite Operator for such terminated Weblink's Satellite Capacity, and
ITCD shall have no other or further liability to Weblink with respect to
such terminated Weblink's Satellite Capacity.
2. Continuation after Termination of Master Agreement. The parties
acknowledge and agree that this Agreement is a separate, free standing
contract and is independent of the New Master Agreement. This Agreement, and
the parties' rights and obligations hereunder, shall continue in full force
and effect notwithstanding any termination of, or default by either party
under, the New Master Agreement.
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L. MISCELLANEOUS
1. Headings. The Paragraph headings used in this Agreement, except where
terms are specifically defined, are for reference and convenience only
and shall not enter into the interpretation hereof
2. Waiver. No delay or omission by either party to exercise any right or
power shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either of the parties of any of the
covenants, conditions or agreements to be performed by the other or any
breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant, condition or agreement herein
contained.
3. Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under
such provision, it being the intent and agreement of the parties that
this Agreement shall be deemed amended by modifying such provision to
the extent necessary to make it legal and enforceable while preserving
its intent. If that is not possible, another provision that is legal and
enforceable and achieves substantially the same objective shall be
substituted. If the remainder of this Agreement is not affected by such
declaration or finding and is capable of substantial performance then
the remainder shall be enforced to the extent permitted by law.
4 Relationship of Parties. ITCD is performing pursuant to this Agreement
only as an independent contractor and nothing set forth in this
Agreement shall be construed to create the relationship of principal and
agent between ITCD and Weblink. Neither ITCD nor Weblink shall act or
attempt to act or represent itself, directly or by implication, as an
agent of the other party or its Affiliates or in any manner assume or
create, or attempt to assume or create, any obligation on behalf of, or
in the name of, the other party or its Affiliates.
5. Approvals and Authorizations. The obligations of the parties hereto
shall be subject to obtaining and maintaining all necessary regulatory
and other governmental approvals and authorizations. The parties agree
to use their respective and, where applicable, collective best
reasonable efforts to obtain promptly and maintain any such approvals.
6. Notices. In addition to such other requirements as may be set forth
herein, any notices hereunder by one party to the other party shall be
given in writing by personal delivery (or by recognized overnight
delivery service) or posted by certified mail return receipt requested,
to the parties at the following addresses:
IF ITCD, SEND TO: IF WEBLINK,SEND TO:
ITC DeltaCom Communications, Inc. Weblink Wireless, Inc.
00 Xxxxxxxx Xxxxxx 0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxxx Attn: Xxxx Xxxxx
V.P. and Treasurer V.P. and Chief Financial Officer
Notices will be deemed to have been given hereunder when delivered
(whether or not accepted by the addressee).
7. Confidentiality. Each party hereby agrees that all non-public,
confidential or proprietary information communicated to it by the other
party, whether before or after the Execution Date, shall be and was
received in strict confidence, shall be used only for purposes of this
Agreement, and, for a period of five (5) years following the termination
of this Agreement, shall not be disclosed by such party, its agents or
employees without the prior written consent of the other
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SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
party, except as may be necessary by reason of legal, accounting or
regulatory requirements beyond the reasonable control of the disclosing
party. The obligations set forth in this Section shall survive
termination of this Agreement.
8. Force Majeure. The term "Force Majeure" shall include, but not be
limited to, fires or other casualties or accidents, acts of God, severe
weather conditions, sun outages, strikes or labor disputes, war or other
violence, any law, order, proclamation, regulation, ordinance, demand or
requirement of any governmental agency or any other act or condition
whatsoever beyond the reasonable control of the affected party. A party
whose performance of its obligations hereunder is prevented, restricted
or interfered with by reason of a Force Majeure condition shall be
excused from such performance to the extent of such Force Majeure
condition so long as such party immediately continues performance
whenever and to the extent such causes are removed. Nothing in this
Section shall relieve Weblink of its obligations to make payments to
ITCD in accordance with Paragraphs C and J of this Agreement, except to
the extent that ITCD is relieved of its obligations to make payments to
the Satellite Operator by such Force Majeure condition.
9. Applicable Law and Entire Agreement. THIS AGREEMENT SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF GEORGIA. This Agreement constitutes the entire agreement
between the parties, supersedes all previous understandings, commitments
or representations and is intended as the complete and exclusive
statement of the terms of the agreement between the parties concerning
the subject matter hereof. This Agreement may not be amended or modified
in any way, and none of its provisions may be waived, except by a
writing signed by each party hereto.
10. Attorney's Fees. In the event of any dispute or controversy arising
hereunder, any court having jurisdiction in any such dispute or
controversy shall determine which of the parties is the prevailing party
and shall award to the prevailing party the reasonable fees and expenses
of counsel, experts and other court costs incurred in connection with
such dispute or controversy.
11. No right of Transfer. Weblink shall not, and shall not have the right
to, grant, sell, assign, encumber, permit the utilization of, license,
lease, or otherwise convey, directly or indirectly, in whole or in part
(individually, a "Transfer"), Weblink's Satellite Capacity, or any of
its rights under this Agreement, to any other entity or person.
Notwithstanding the foregoing, Customer may assign its Satellite
Capacity, and its rights under this Agreement, without ITCD's written
consent, to any corporation, partnership or other entity which is
controlled by Customer and in which Customer has not less than fifty-
one percent (51%) of the ownership interest, provided that no such
assignment shall relieve Customer of any of its obligations hereunder.
12. Successors and Assigns. Subject to Paragraph L.11 above, this Agreement
shall be binding on and shall inure to the benefit of any successors and
assigns of the parties, provided that no assignment of this Agreement
shall relieve either party hereto of its obligations to the other party.
Any purported assignment by either party not in compliance with the
provisions of this Agreement shall be null and void and of no force and
effect.
Page 9 of 10
Third Amended and Restated Satellite Services Agreement
ITC DeltaCom Communications, Inc
Confidential and Proprietary
THIRD AMENDED AND RESTATED
SATELLITE SERVICES SUPPLEMENTAL AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf by an officer thereunto duly
authorized, all as of the day and year first above written.
ITC DELTACOM COMMUNICATIONS, INC.
By: Xxxxxx X. Conan
-----------------------------------
Title: Vice President
--------------------------------
Date: August 1, 2001
---------------------------------
Signed: /s/ XXXXXX X. CONAN
-------------------------------
WEBLINK WIRELESS, INC.
By: Xxxxxxx X. Xxxx
-----------------------------------
Title: Senior Vice President
--------------------------------
Date: July 31, 2001
---------------------------------
Signed: /s/ XXXXXXX X. XXXX
-------------------------------
Page 10 of 10
Third Amended and Restated Satellite Services Agreement
ITC DeltaCom Communications, Inc
Confidential and Proprietary
