1
AUTHORIZED AGENCY AGREEMENT
BETWEEN
BELLSOUTH CELLULAR NATIONAL MARKETING, INC
AND
LET'S TALK CELLULAR & WIRELESS, INC.
EFFECTIVE: 4/1/98
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AUTHORIZED AGENCY AGREEMENT
BETWEEN
BELLSOUTH CELLULAR NATIONAL MARKETING, INC
AND
LET'S TALK CELLULAR & WIRELESS, INC.
THIS AGREEMENT IS ENTERED INTO BY Let's Talk Cellular & Wireless, Inc., a
Florida corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("AGENT") and BELLSOUTH CELLULAR NATIONAL
MARKETING, INC ("BCN"), a Georgia corporation, having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ on
behalf of the entities listed on Exhibit A for the specific markets associated
with such entities as set forth on Exhibit A. Each entity in whose behalf BCN
contracts shall only contract for the market listed beside that entity's name.
In consideration of the mutual promises and covenants set forth herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized words and phrases used in this Agreement shall have the
following meaning:
1.1 AFFILIATE. A person, association, partnership, corporation or
joint-stock company, trust or other business entity is an affiliate of that
person ("Person") that directly or indirectly Controls, is Controlled by or is
under common Control with another Person.
1.2 AGENT. The party defined as "AGENT" above and any sub-contractor,
employee, servant, Affiliate or agent of said party. The term "AGENT" as used
herein is applicable to one or more persons, a corporation or a partnership, as
the case may be, and the singular use includes the plural and the masculine and
neuter usages include the other and the feminine.
1.3 AREA. The Metropolitan Statistical Area(s) and/or Rural Service
Area(s) as set forth in Exhibit A, within which BCN has or intends to apply for
regulatory authority to provide CRS and within which AGENT has the authority to
solicit and contract, on behalf of BCN, with Subscribers.
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***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
1.4 CELLULAR RADIO SERVICE. ("CRS") ***
1.5 COMMERCIAL MOBILE RADIO SERVICE. ("CMRS") ***
1.6 CONTROL OR CONTROLLING INTEREST. Ownership of fifty-one percent
(51%) of the voting power of all classes of voting stock or fifty-one percent
(51%) of the beneficial interests in income and capital of an entity other than
a corporation.
1.7 EQUIPMENT. Mobile and portable radio units that are used by
Subscribers in conjunction with CRS or CMRS and approved by the FCC.
1.8 FCC. The Federal Communications Commission.
1.9 MARKETS. Those MSAs and RSAs which BCN has grouped into management
units and which are commonly referred to by largest city in the grouping and
which are more fully described in Exhibit A.
1.10 MARKS. Trademarks, trade names, insignia, symbols, decorative
designs, or the like which BCN or its Affiliate owns or is licensed or
sublicensed to use in connection with Cellular Radio Service or products
relating thereto, and which BCN, in its sole discretion, determines that AGENT
is authorized to use.
1.11 NEW SUBSCRIBER. A Subscriber activated by Agent who has neither
cancelled BCN CRS within six (6) months of the date of activation (before or
after) nor is the member of a household or business entity at which another
person has cancelled BCN CRS within six (6) months of the date of activation
(before or after).
1.12 RESELLER. Any person, association, partnership, corporation or
joint-stock company, trust, and any other business entity which purchases bulk
quantities of CRS from BCN for resale distribution, directly or indirectly, to
ultimate users of CRS.
1.13 ROAMER. A CRS user who takes the Equipment out of the range of the
home system and receives cellular service in another system's coverage area.
1.14 SUBAGENT. An entity or person with which AGENT has an agreement
for the enrollment of Subscribers to BCN's CRS through AGENT.
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***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
1.15 SUBSCRIBER. Any potential or actual customer who is the ultimate
user of CRS provided by BCN. However, for the purpose of calculating
compensation in Exhibit B, each CRS telephone number assigned to a customer of
BCN's CRS is deemed to be a separate Subscriber, regardless of how many CRS
telephone numbers may be used by that customer.
1.16 USAGE. A period of time during which a Subscriber uses the
cellular system and incurs charges for such use.
1.17 EXCLUSIVE MARKETS. All Markets that are not Non-Exclusive.
1.18 NON-EXCLUSIVE MARKETS. ***
ARTICLE II
APPOINTMENT OF AGENT
BCN hereby appoints AGENT, and AGENT hereby accepts the appointment, as
a nonexclusive, authorized agent of BCN to solicit and contract on behalf of BCN
with Subscribers for CRS in the Area, subject to all of the terms and conditions
hereof. AGENT recognizes and agrees that BCN has the right to and may appoint
other nonexclusive, authorized CRS agents in the Area, including retailers and
other business organizations as distributors of CRS in the Area, and that BCN
has the right to and may directly offer and furnish CRS to Subscribers within
the Area. AGENT recognizes and agrees that BCN will market Equipment directly or
indirectly through Affiliates. In addition, AGENT recognizes that under current
applicable FCC cellular rules, BCN must sell its CRS to Resellers.
AGENT agrees to act as BCN's agent in offering CRS to Subscribers. All
of such offerings shall be at the rates and under the terms and conditions which
BCN shall from time to time specify.
It is understood and agreed that Subscribers shall be customers of BCN
for CRS.
ARTICLE III
GENERAL OBLIGATIONS AND REPRESENTATIONS
3.1 GENERAL. AGENT acknowledges and agrees that AGENT has read and
understands the obligations imposed by the FCC upon CRS licensees such as BCN as
specified in Parts 22.911, 22.912 and 22.914 of the FCC's cellular rules. AGENT
acknowledges that it has
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conducted an independent investigation of the CRS business that it will conduct
pursuant hereto. AGENT recognizes that entry into the CRS business as an agent
of BCN involves business risks and that AGENT's success in such business will
depend primarily upon its abilities and efforts. BCN expressly disclaims the
making of, and AGENT acknowledges that it has not received or relied upon, any
guaranty, express or implied, as to the amount of compensation or other revenue
that it may earn as a result of its agency relationship with BCN.
3.2 ACCEPTANCE OF TERMS OF AGREEMENT. BCN and AGENT each acknowledges
that it has read this Agreement and understands and accepts the terms,
conditions and covenants contained herein as being reasonably necessary to
maintain BCN's high standards for CRS and to protect and preserve the goodwill
of BCN and of BCN's CRS and its Marks.
3.3 NO MISREPRESENTATIONS. AGENT represents to BCN, as an inducement to
its entry into this Agreement, that AGENT has made no misrepresentations to BCN
in its application for appointment as a nonexclusive, authorized agent of BCN or
in any other manner. Neither Party has knowledge of any representations relating
to this agency relationship by any officer, employee or agent of the other that
are contrary to the terms herein.
3.4 LOST PROFITS. AGENT and BCN mutually agree that neither shall have
any liability to the other for any lost profits or consequential damages even if
advised of the possibility of such damages.
3.5 BEST EFFORTS. BCN and AGENT mutually agree that each will at all
times faithfully, honestly and diligently perform its obligations hereunder, and
that it will continuously exert its best efforts to promote and enhance the use
of BCN's programs.
3.6 USE OF BCN REPRESENTATIVES. Unless BCN gives prior written consent
to AGENT, AGENT agrees that it will not, during the term of this Agreement,
knowingly use as a sub-contractor, Subagent, sales representative, or agent, any
Person or entity which has, or had within six (6) months of AGENT's use of such
Person or entity, an agreement with BCN to enroll Subscribers. For purposes of
this Paragraph 3.6 the expression "Person or entity which has, or had within six
(6) months of AGENT's use of such Person, an Agreement with BCN to enroll
Subscribers" includes all officers, directors, stockholder and other principals
of any entity which has, or had within six (6) months of AGENT's use of such
person, an Agreement with BCN to enroll Subscribers, but does not include other
employees of such entity. Should Agent inadvertently employ any such person,
Agent agrees to terminate such relationship upon thirty (30) days prior notice
from BCN.
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ARTICLE IV
AGENT'S USE OF SUBAGENTS
AGENT agrees that in the event that AGENT enters into agreements with
Subagents, its use of such Subagents shall be subject to the following terms and
conditions:
4.1 NOTICE TO BCN. AGENT shall, upon request of BCN, notify BCN in
writing of all Subagents, Subagents' principals and the terms of the agreement
AGENT has with each of its Subagents.
4.2 INFORMATION TO BE PROVIDED TO SUBAGENTS. AGENT shall inform
Subagents of all of AGENT's contractual obligations pursuant to this Agreement
and at all times keep each Subagent fully apprised of BCN's requirements with
respect to Subagents and any procedures relevant to Subagent's sale of CRS.
4.3 ACTIVATIONS. Subagents will have no direct communications with BCN.
All communications regarding activations, compensation, procedures, and any
other matters are to be handled solely by AGENT.
4.4 TRAINING. AGENT shall be responsible for ensuring that all
Subagents are adequately trained at AGENT's premises. Such training shall be as
specified in Article V.
4.5 USE OF MARKS. Except as provided in Paragraph 13.2, Subagents are
prohibited from using BCN's Marks in a manner which identifies Subagents as
representatives of BCN.
4.6 COMPLIANCE WITH AGREEMENT. Subagents must at all times comply with
provisions of this Agreement which may relate to Subagents, including but not
limited to Articles VII, X, XI, XV, XVI, XVII, XXIV, and XXVIII and the
provisions of any Exhibit.
4.7 RESPONSIBILITY OF AGENT FOR ACTS OF SUBAGENTS. Subagents are
representatives of AGENT only. AGENT shall be fully responsible for the acts of
its Subagents. If BCN determines that any Subagent is not in compliance with any
of the terms and conditions stated herein which BCN determines are applicable to
Subagents, BCN may terminate this Agreement with AGENT.
4.8 NONCOMPETITION BY SUBAGENT. AGENT shall not contract with a
Subagent who is a party, directly or indirectly, to a contract with any other
provider of CRS in the Area. AGENT's agreement with its Subagents shall provide
that such agreement shall be terminated if Subagent contracts with or in any
manner does business with a provider of CRS in the Area other than BCN.
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ARTICLE V
TRAINING
Training requested by AGENT will be provided at BCN's sole discretion
and at AGENT's expense. BCN, at its expense and in its discretion, may provide
training to AGENT's employees at locations selected by BCN within the counties
included within the Area.
ARTICLE VI
ADMINISTRATIVE PROCEDURES
6.1 SUBSCRIBER ENROLLMENT. BCN may periodically prescribe various
reasonable procedures to be followed by AGENT and its salespersons in the
solicitation of Subscribers, presentations relating to CRS and enrollment of
Subscribers. Attached hereto as Exhibit C and incorporated herein are current
procedures for reducing fraud with which AGENT shall comply when activating
Subscribers. BCN will also furnish CRS literature and forms of agreements AGENT
must use in the enrollment of Subscribers. AGENT agrees to comply with all
reasonable procedures prescribed by BCN for the solicitation of Subscribers,
presentations to Subscribers relating to CRS and enrollment of Subscribers.
AGENT shall communicate Subscriber enrollment and billing information to BCN via
telephone and follow-up forms.
6.2 NATIONAL ACCOUNTS. BCN has developed a list of national accounts in
the Area and has formulated a national account plan with guidelines for calling
on these accounts. AGENT shall comply with such guidelines, as amended from time
to time, when dealing with National Accounts. BCN will administer this plan and
monitor sales results.
6.3 BILLING, CREDIT AND COLLECTIONS. Upon enrollment of a particular
Subscriber by AGENT, that Subscriber shall become a customer of BCN for CRS and
BCN shall ▇▇▇▇ such Subscriber and offer and furnish such customer billing
services as BCN deems appropriate. BCN shall be responsible for collecting any
charges for CRS unpaid by Subscribers. BCN shall be responsible for approving
Subscribers for credit. BCN shall not activate any Subscriber unless and until
such Subscriber has satisfactorily passed a credit check and has paid any
required deposit. AGENT shall not be entitled to compensation for a Subscriber
who fails to pass the credit check or to pay any required deposit.
6.4 RATES. BCN shall, subject to any required regulatory approval,
determine and periodically modify rates for CRS and shall notify AGENT as soon
as practicable of each modification. AGENT acknowledges that from time to time
BCN may offer rates for CRS, by contract or otherwise, which rates may not be
made available to AGENT and its customers. AGENT shall take no action
inconsistent with and agrees to support BCN's efforts before regulatory
authorities regarding any modification of rates. Modifications of rates may
apply to
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both existing and future Subscribers.
6.5 CRS TELEPHONE NUMBERS. BCN will furnish CRS telephone numbers for
Subscribers subject to availability and technological capacity. In the event
technological changes occur which restrict or limit BCN's ability to furnish CRS
telephone numbers for Subscribers, BCN shall inform AGENT and BCN shall have no
liability to AGENT hereunder for the inability to furnish such numbers. If BCN
is unable to furnish numbers, AGENT's quotas set out on Exhibit B3 will be
appropriately adjusted. CRS telephone numbers will be proportionally allocated.
6.6 TECHNOLOGICAL CHANGES. If technological changes change the size of
BCN's coverage area or impose restrictions on the use of a Subscriber's
Equipment, BCN will inform AGENT of such changes and AGENT will inform
Subscribers with whom AGENT comes into contact of such changes or restrictions.
Failure by AGENT to inform Subscribers of such changes will be considered a
material breach of this Agreement.
ARTICLE VII
DUTIES AND RESPONSIBILITIES OF AGENT REGARDING EQUIPMENT
7.1 GENERAL RESPONSIBILITIES. AGENT agrees to sell, lease or rent
Equipment to be used by Subscribers of BCN's CRS. AGENT shall be responsible for
the warranty service for and installation and maintenance of such Equipment,
either through its own BCN-certified facility or by subcontracting with a
BCN-certified facility. AGENT agrees to offer only models of Equipment for sale,
lease or rental that meet quality standards set by the FCC and the
manufacturer's recommendations for use of such Equipment. At BCN's request AGENT
agrees to BMI to BCN for BCN's approval the models of Equipment which it
proposes to sell, lease or rent. AGENT agrees that BCN shall have the right to
reasonably approve or disapprove any Equipment. BCN shall not be obligated to
pay any commission to AGENT for any Subscriber whom AGENT enrolls on BCN's CRS
with an unapproved FCC type Equipment or Equipment which does not meet the
manufacturer's recommendations.
Subscribers shall be customers of AGENT with respect to Equipment. BCN
shall have no responsibility to AGENT or Subscribers with respect to the sale,
installation, warranty service for or maintenance of Equipment. The
indemnification provisions of Article XXIX of this Agreement shall apply to any
claims or demands against BCN which relate to AGENT's sale, lease or rental of
Equipment.
7.2 INVENTORY. AGENT agrees to maintain an inventory of approved models
of Equipment sufficient to meet reasonably anticipated demand therefor by
Subscribers AGENT enrolls.
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***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
AGENT may purchase Equipment from any available source, including BCN.
Such Equipment shall be of the style, appearance and quality as to be adequate
and suitable for use with BCN's CRS. Such Equipment will be sold, leased or
rented in accordance with all applicable federal, state and local laws, and the
same shall not reflect adversely upon the good name of BCN or any of its
programs or the Marks. AGENT acknowledges and agrees that BCN offers Equipment
for sale to those of its agents who meet BCN's credit criteria as an
accommodation to enable agents to meet the needs of BCN's CRS customers. AGENT
further acknowledges that BCN may from time to time stock equipment that it does
not sell to AGENT or that BCN will only consign to AGENT for sale in conjunction
with CRS.
7.3 ADDITIONAL EQUIPMENT SERVICES; BILLING BY BCN. AGENT shall be
responsible for arranging lease, lease-purchase and other financing plans for
Equipment sold, leased or rented by AGENT to Subscribers, and for offering to
Subscribers any insurance protection or other services for Equipment purchases,
leases and rentals, provided, however, that nothing herein shall preclude BCN
from offering such services directly in its discretion. BCN is responsible for
billing and for collecting for CRS charges and AGENT is responsible for
collecting for Equipment-related charges. It shall be the responsibility of
AGENT to collect amounts unpaid by Subscriber relating to Equipment purchase,
lease or rental charges, related maintenance charges, or any other charges for
which Subscriber may be obligated to AGENT whether billed by BCN or not.
ARTICLE VIII
COMPENSATION
BCN shall pay compensation to AGENT in accordance with the Compensation
Schedule in Exhibit B attached hereto and incorporated herein, which Schedule
may be amended from time to time as set forth in Exhibit B. Nothing herein shall
prohibit BCN from offering from time to time different rates, special promotions
or additional service packages with different compensation for AGENT. In the
event such rates, promotions or service packages are offered, AGENT shall be
required to evidence in writing its consent to the change in compensation in
order to be eligible to offer such rates, promotions or services to Subscribers.
AGENT understands that no compensation shall be paid unless AGENT complies with
the terms and conditions specified in this Agreement and the Compensation
Schedule. AGENT acknowledges that compensation paid to AGENTS and other
distributors for adding Subscribers to BCN's CRS may vary. ***
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***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
***Furthermore, AGENT acknowledges that the standard compensation payable
pursuant to Exhibit B may be greater or less than the compensation payable to
other distributors of BCN's service.
In the event that, as set forth in Article III, BCN undertakes to
solicit or accept orders from Subscribers who are already owners of Equipment or
who, for other reasons, do not wish to be referred to an authorized agent, BCN
shall be under no obligation to refer such Subscribers to AGENT or to pay any
compensation to AGENT.
ARTICLE IX
QUOTAS
SEE EXHIBIT B3
ARTICLE X
AGENT'S SALES FACILITIES
AGENT agrees that it will sell CRS and Equipment at sales facilities in
the Area and at such additional or substitute sales facilities. Each of AGENT's
CRS sales facilities shall be comparable with their current facilities. BCN
Equipment and BCN collateral shall at all times be displayed at AGENT locations
consistent with the custom in the industry for indirect distribution channels.
At those distribution points at which AGENT is permitted to sell a Competitive
Service as provided in Article XXIV, AGENT agrees that BCN signage shall occupy
the marquee location directly beneath AGENT's name at which BCN products and
services are sold, provided that BCN agrees to pay the cost of such signage. In
no event shall AGENT display another CMRS provider's name in such marquee
location.
ARTICLE XI
AGENT'S INSTALLATION AND MAINTENANCE FACILITIES
11.1 FACILITIES. If AGENT sells a model of Equipment not sold by BCN,
AGENT shall provide warranty service for such Equipment.
11.2 CORRECTIVE WORK BY BCN. AGENT will be invoiced by BCN for the cost
of any and all corrective work performed on behalf of or by BCN which is caused
by AGENT's negligence or faulty installation, if such corrective work is
performed within one hundred twenty (120) days from the date of such
installation. If practical, BCN will notify AGENT prior to performing such
corrective work.
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ARTICLE XII
ADVERTISING
AGENT agrees to advertise BCN's CRS throughout the Area. If AGENT
follows BCN's procedures concerning enrollment of a Subscriber, adheres to
applicable tariffs, and complies with the terms and conditions of this
Agreement, then BCN shall pay AGENT for advertising costs in accordance with
Exhibit B.
All advertising and promotion by AGENT shall be completely factual and
shall conform to the highest standards of ethical advertising. AGENT shall not
use any advertising or marketing materials that BCN has disapproved.
ARTICLE XIII
MARKS
13.1 LIST OF MARKS. BCN has published a list of Marks which AGENT is
authorized to use under this Agreement in conjunction with the sale of BCN's CRS
and products. BCN will periodically update the list of Marks AGENT is authorized
to use under this Agreement. The most current updated list will always supersede
any previously issued list. Such list will also be supplemented with rules and
regulations pertaining to the Marks which AGENT agrees to follow.
13.2 RIGHT TO USE MARKS; VALUE OF MARKS. AGENT acknowledges that its
right to use the Marks is derived solely from this Agreement and is limited to
the right to identify AGENT as an agent of BCN for the sale of CRS and to
identify products and services bearing the Marks which may be sold by AGENT.
AGENT agrees to comply with all rules and regulations pertaining to such Marks
prescribed by BCN from time to time during the term of this Agreement. AGENT
agrees to maintain the quality and nature of the goods and services associated
with the Marks as established by BCN. AGENT recognizes the great value of the
goodwill associated with the Marks, and acknowledges that it has no interest in
the Marks and all rights therein and goodwill pertaining thereto belong
exclusively to BCN and its Affiliates, and that the Marks have a secondary
meaning in the mind of the public. AGENT acknowledges and agrees that all usage
of the Marks by AGENT and any goodwill established thereby shall inure to the
exclusive benefit of BCN and its Affiliates and that this Agreement does not
confer any goodwill or other interests in the Marks upon AGENT. Any unauthorized
use of the Marks by AGENT, or any use not in compliance herewith, shall
constitute an infringement of the rights of BCN and its Affiliates in and to the
Marks. Use of the Marks by a Subagent of AGENT, except to properly identify
products and services bearing the Marks which may be sold by the Subagent, shall
constitute an infringement of the rights of BCN in and to the Marks. Without
limiting the foregoing, no Subagent is authorized to use the "▇▇▇▇" symbol logo
or in any way represent that it is an agent of BCN.
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13.3 USE OF MARKS BY AGENT. AGENT shall use the Marks with such words
qualifying or identifying the agency relationship of BCN and AGENT as BCN from
time to time reasonably prescribes. AGENT shall not use the Marks as part of any
corporate or trade name or with any prefix, suffix or other modifying words,
terms, designs or symbols, or in any modified form, nor may AGENT use the Marks
in connection with the sale or lease of any unauthorized product or service or
in any other manner not expressly authorized by this Agreement or separately in
writing by BCN. AGENT agrees to display the Marks on stationery and other forms
used in its CRS business in the manner prescribed by BCN, to give such notices
of registration as BCN specifies and to obtain such fictitious or assumed name
registrations as may be required under applicable law. Misuse of the Marks by
AGENT or its Subagents may result in termination of this Agreement or such other
remedy, including withholding of commissions, as BCN may establish from time to
time in its Advertising guidelines.
13.4 MODIFICATION OF MARKS. If it becomes advisable at any time in
BCN's sole discretion for AGENT to modify or discontinue use of any ▇▇▇▇ or
substitute one or more additional trade or service marks to identify its
relationship with BCN or any Equipment, AGENT agrees to comply therewith within
a reasonable time after notice thereof by BCN and the sole obligations of BCN in
any such event shall be to reimburse AGENT for the out-of-pocket costs, if any,
of complying with this obligation and to indemnify AGENT as provided for in
Paragraph 13.5 below. In addition, AGENT shall replace obsolete identification
signs or identification material with new signs or identification material
should BCN adopt new Marks replacing one or more Marks identified by BCN in such
list as hereinbefore specified.
13.5 PROTECTION OF RIGHTS IN THE MARKS. AGENT agrees that it will not
during the term of this Agreement, or thereafter, attack the title or any rights
of BCN or its Affiliates in and to the Marks. BCN hereby indemnifies AGENT and
undertakes to hold AGENT harmless against any damages and costs from claims or
suits arising out of the use by AGENT of the Marks as authorized in this
Agreement, provided that prompt notice is given to BCN of any such claim or suit
and provided further, that BCN or its Affiliates shall have the option to
undertake and conduct the defense of any suit so brought and that no settlement
of any such claim or suit shall be made by AGENT without the prior written
consent of BCN.
AGENT agrees to assist BCN or its Affiliates and BCN agrees to
reimburse AGENT for all associated reasonable costs to the extent necessary in
the procurement of any protection or to protect any of BCN's or its Affiliates
rights to the Marks, and BCN or its Affiliates, if it or they so desire, may
commence or prosecute any claims or suits in its own name or that of its
Affiliates or in the name of AGENT with AGENT's approval or join AGENT as a
party thereto. When known, AGENT shall notify BCN in writing of any
infringements or imitations by others of the Marks which are the same as or
similar to those covered by this Agreement. BCN shall have the sole right to
determine whether any action shall be taken on account of any such
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infringements or imitations. AGENT shall not institute any suit or take any
action on account of any such infringement or imitations without first obtaining
the written consent of BCN.
13.6 MOBILINK MARKS. As long as BCN is licensed to use the MobiLink
trademark in the Area, and the AGENT also desires to use the MobiLink ▇▇▇▇, the
AGENT shall comply with all the terms and conditions of the MobiLink Addendum
which shall become a part of this Agreement.
ARTICLE XIV
RULES AND PROCEDURES
AGENT agrees to comply, as applicable, with Part 22 of the FCC's
cellular rules, all tariffs, other governmental rules, and procedures reasonably
prescribed from time to time by BCN relating to the sale of CRS, the sale,
lease, rental, installation, warranty service and repair of Equipment and the
conduct of AGENT's CRS business hereunder, all of which shall constitute
provisions of this Agreement as if fully set forth herein. All references herein
to this Agreement shall include all such tariffs, rules and procedures. BCN may,
at its option, incorporate such tariffs, rules and procedures in one or more
Operations Manuals or other written form. Except as to any liabilities covered
by AGENT's insurance, BCN agrees to indemnify and hold AGENT harmless against
liabilities from and costs of suits or claims arising out of AGENT's actions or
inactions which are required by BCN in writing for AGENT's compliance with rules
and procedures prescribed by BCN in accordance with this paragraph. In no event
shall BCN indemnify and hold AGENT harmless against liabilities from and costs
of suits or claims arising out of AGENT's actions or inactions unless BCN has
required in writing such actions or inactions.
ARTICLE XV
COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES
15.1 COMPLIANCE WITH BCN CRITERIA, LAWS AND REGULATIONS. AGENT shall
secure and maintain in force all licenses and permits required by AGENT and its
employees in the enrollment of Subscribers and the sale, lease, rental,
installation and maintenance of Equipment, including without limitation all
required FCC permits and certifications. AGENT shall comply with all BCN
installation, warranty and maintenance criteria, and shall conduct its business
in full compliance with all laws, ordinances and regulations applicable to
AGENT's business. AGENT shall not engage in any activity which would cause AGENT
and/or BCN to be in violation of any requirement, rule, decision, law,
regulation, judgment or order of any state or Federal governmental agency or
court. BCN shall offer CRS in accordance with applicable rules, regulations,
statutes and decisions governing CRS.
AGENT shall maintain its business on a sound financial basis and comply
with all legal obligations to BCN, to AGENT's employees, suppliers, lenders,
lessors, and to federal, state and municipal authorities, including but not
limited to tax authorities. AGENT shall maintain all real
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and personal property used in connection with its CRS business free of all liens
and encumbrances of every kind or character which may impair or jeopardize the
AGENT's conduct of its business.
AGENT shall comply, at its own expense, with the provisions of all
applicable municipal requirements and those state and federal laws applicable to
AGENT as an employer of labor or otherwise. AGENT expressly agrees not to
discriminate against any employee or applicant for employment because of race,
creed, color, national origin or sex. The provisions of Executive Order No.
11246, as amended, are incorporated herein by reference. AGENT will fully comply
with the provisions of the Federal Occupational Safety and Health Act of 1970
and any rules and regulations issued pursuant to such Act.
15.2 STANDARDS OF CONDUCT. AGENT agrees to refrain from any business or
advertising practice which may be injurious to the business of BCN and the
goodwill associated with the Marks.
15.3 NOTIFICATION OF ACTIONS INVOLVING AGENT. AGENT shall notify BCN in
writing within five (5) days of the commencement of any material action, suit or
proceeding, and of the issuance of any order, writ, injunction, award or decree
of any court, agency or other governmental instrumentality, involving AGENT or
any business conducted by AGENT. Notwithstanding any of the foregoing provisions
of this paragraph, a default by AGENT with respect to such provisions shall be
construed as a breach if it has a material and adverse impact upon the AGENT's
ability to furnish the services for which it has become obligated under this
Agreement.
ARTICLE XVI
INSURANCE
AGENT shall at all times during the term hereof, at AGENT's sole
expense, maintain ▇▇▇▇▇▇▇'▇ compensation in accordance with statutory
requirements in the Area and be insured under a commercial general liability
insurance policy including premises/operations; completed operations, broad form
property damage and bodily and personal injury, including death, against claims
caused by or occurring in conjunction with the operation of AGENT's CRS
business. Such insurance coverage shall be maintained under one or more policies
of insurance from a recognized insurance company qualified to do business within
the Area, providing in the aggregate a minimum liability protection of One
Million Dollars per occurrence for bodily and personal injury and death, One
Million Dollars per occurrence for property damage, and One Million Dollars for
completed operations, subject to such deductibles as BCN determines from time to
time to be appropriate. Completed operations coverage must be maintained for one
(I) year after the completion of the work. Such insurance shall also contain
contractual coverage insuring for the indemnification undertaken by AGENT
hereunder. Each such insurance policy
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shall provide for not less than thirty (30) days' prior written notice to all
insureds of any modification, cancellation or nonrenewal.
BCN may at any time and with ninety (90) days prior notice to AGENT
require AGENT to increase the amount of coverage of any type of insurance to
reflect inflation, higher damage awards or comparable factors which make the
above limits insufficient to cover AGENT's liabilities and AGENT's
indemnification of BCN under this Agreement. Within sixty (60) days after
commencement of this Agreement, and at other times specified by BCN, AGENT must
furnish proof satisfactory to BCN that insurance coverage required hereunder is
in force.
ARTICLE XVII
AGENT'S BUSINESS RECORDS
AGENT agrees to create and to maintain at its principal office and to
preserve for five (5) years from the date of their preparation full, complete
and accurate records of its business conducted pursuant to this Agreement. At
BCN's request or upon prior notice to AGENT, AGENT also agrees to have available
at AGENT's premises records of its Subagents conforming to the requirements
imposed upon AGENT by this Article XVII. Such records must include, for example,
but not be limited to, records of all CRS enrollment and Equipment sales,
leases, or rentals, and installation and repairs performed at AGENT's
facilities. At least once each year, AGENT shall perform a physical inventory of
all Equipment supplied by BCN to the AGENT for the BCN Leasing and Rental plans,
and shall provide a copy of the inventory to BCN within ten (10) days after it
is performed. Such records may be audited by BCN at reasonable times after
reasonable notice to AGENT. BCN expressly agrees, and will require its
authorized representatives to agree, that it will keep all such records strictly
confidential and that it will not disclose such information to any other agent
authorized by BCN to provide CRS or to any Reseller of BCN's CRS or to any other
person without AGENT's express prior written consent, except upon lawful demand
or request from a court, regulatory agency, or law enforcement agency.
ARTICLE XVIII
RELATIONSHIP OF BCN AND AGENTS
With the sole exception of the Subscribers enrolled by AGENT for the
account of BCN, with respect to which AGENT acts as agent of BCN and owes BCN
the fiduciary and other obligations of an agent to its principal, BCN and AGENT
acknowledge and agree that their agency relationship arising from this Agreement
does not constitute or create a general agency, joint venture, partnership,
employment relationship or franchise between them. In all dealings with
Subscribers, public officials and others, AGENT shall conspicuously identify
itself as an agent of BCN in the provision of CRS and otherwise as an
independent business and shall place such notices of its independent ownership
of its business on such forms, stationery, advertising
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and other materials as BCN may reasonably require from time to time. BCN has not
authorized or empowered AGENT to use the Marks except as herein provided and
AGENT shall not employ any ▇▇▇▇ in signing any contract, lease, mortgage,
purchase agreement, negotiable instrument or other legal obligation, or in a
manner that may result in liability of BCN (or its Affiliates) for any
indebtedness or obligation of AGENT. Unless specifically authorized in writing,
neither BCN nor AGENT shall make any express or implied agreements, guarantees
or representations, or incur any debt, in the name of or on behalf of the other,
except as otherwise set forth herein.
Neither BCN nor AGENT shall be obligated by or have any liability under
any agreements or representations made by the other party that are not expressly
authorized hereunder, nor shall BCN be obligated for any damages to any person
or property directly or indirectly arising out of the CRS business conducted by
AGENT pursuant hereto, whether caused by AGENT's negligent or willful action or
failure to act, unless such damage is proximately caused by BCN or arises out of
AGENT's compliance with the rules or procedures prescribed in writing by BCN
pursuant to this Agreement.
ARTICLE XIX
AGENT'S PERSONNEL AND SUBAGENTS NOT DEEMED BCN'S EMPLOYEES
OR AGENTS
The parties agree that personnel employed by AGENT to perform services
under this Agreement and Subagents of AGENT are not BCN employees and AGENT
assumes full responsibility for their acts. Personnel employed by AGENT,
subcontractors of AGENT and Subagents shall be informed that they are not
entitled to the provisions of any of BCN's employee benefits. With respect to
such personnel, AGENT shall have sole responsibility for supervision, daily
direction and control. AGENT shall be responsible for worker's compensation,
disability benefits, unemployment insurance and withholding and remitting income
and social security taxes for said personnel, including contributions from them
as required by law.
AGENT warrants it has an appropriate agreement with all persons whose
services AGENT may require sufficient to enable it to comply with all provisions
of this Agreement.
ARTICLE XX
ASSIGNMENT
This Agreement is fully assignable by BCN to an affiliate or affiliates
of BCN, to a partnership or partnerships in which BCN or an affiliate has an
interest, or to any entity which succeeds to all or substantially all of BCN's
assets by sale, merger or operation of law. Any other assignment of this
Agreement by BCN shall be subject to the written approval of AGENT which
approval shall not be unreasonably withheld.
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AGENT acknowledges that BCN has entered into this Agreement in reliance
upon the character, business experience and ability of AGENT and its owner(s)
and that the rights and duties created by this Agreement are personal to AGENT
and its owner(s). Therefore, this Agreement may not be voluntarily,
involuntarily, directly or indirectly assigned, or otherwise transferred without
the written approval of BCN, which will not be unreasonably withheld, subject to
such reasonable conditions as BCN deems necessary. Nothing herein shall prohibit
transfers in connection with the merger or consolidation of AGENT with another
entity or the sale of substantially all of the assets of AGENT to another
entity. Any assignment or transfer without approval or which is not expressly
subject to the written approval of BCN shall constitute a breach hereof and
convey no rights or interests herein. Nothing herein shall prohibit AGENT from
making a public offering of its securities.
ARTICLE XXI
TERM AND EXTENSION OF AGENCY RELATIONSHIP
The term of this Agreement shall commence on the Commencement Date and
end on the date which is three calendar years later. AGENT shall provide to BCN
written notice of the date on which AGENT initiates CRS operations in the Area.
This Agreement shall be effective only after its execution by an officer or
other authorized employee of both AGENT and BCN. This Agreement is subject to
renewal for an additional term of one (1) year only upon written agreement by
each party. Each Party agrees to provide notice to the other Party of any
desired renewal of this Agreement ninety (90) days prior to the termination of
this Agreement.
This Agreement shall become effective upon completion of Let's Talk
Cellular & Wireless, Inc.'s ("LTCW") acquisition (the "CW Acquisition") of the
stock of Cellular Warehouse, Inc. ("CW"). The compensation provisions of this
agreement shall become effective as of April 1, 1998, provided that the closing
of the CW Acquisition has taken place by April 30, 1998, otherwise on the first
day of the month following the date of closing of the CW Acquisition (the
"Commencement Date"). All computations for compensation shall be computed based
on the Commencement Date. Prior to the Commencement Date, LTCW and CW's existing
agreements with BCN shall remain in full force and effect. LTCW and CW's
existing agreements with BCN shall terminate on the effective date of this
Agreement. In the event the CW Acquisition does not close by December 31, 1998,
this Agreement shall terminate.
ARTICLE XXII
TERMINATION OF AGREEMENT
22.1 TERMINATION BY AGENT. If AGENT is in substantial compliance with
this Agreement and BCN materially breaches this Agreement and fails to cure such
breach within
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thirty (30) days after written notice thereof is delivered to BCN, AGENT may
terminate this Agreement effective thirty (30) days after delivery to BCN of
written notice.
22.2 TERMINATION BY BCN FOR REGULATORY REASONS. BCN shall have the
right to terminate this Agreement effective upon thirty (30) days' written
notice in the event that:
A. the FCC's cellular rules are not continued in substantially the
same form and such change has a material adverse impact on BCN's ability to
conduct its business in the Area;
B. regulatory approval empowering BCN or an Affiliate to construct
and provide CRS in the Area is not granted to either BCN or an Affiliate, is
granted subject to terms and conditions unacceptable to BCN or an Affiliate, or
is granted under terms and conditions which, in BCN's opinion, materially affect
the intended purpose of this Agreement;
C. regulatory authorization of the Compensation Schedule or this
Agreement is made subject to terms and conditions unacceptable to BCN or its
Affiliates; or
D. AGENT or any Affiliate is granted regulatory authority to
construct or operate CRS in any area where BCN or any Affiliate has also been
granted such regulatory authority.
22.3 TERMINATION FOR CAUSE.
A. In addition to other rights of termination set forth in this
Agreement, BCN shall have the right to terminate this Agreement for cause
effective upon delivery of notice of termination to AGENT, if AGENT (or one or
more of its officers):
(i) has made any material misrepresentation or
omission in its application to establish an agency relationship with BCN or is
arrested for, convicted of or pleads no contest to a felony or other crime or
offense that is likely to adversely affect the reputation of BCN or its
affiliated companies or the goodwill of the Marks;
(ii) makes an unauthorized assignment of this
Agreement or makes an assignment of this Agreement that is not expressly subject
to the written approval of BCN and fails to correct such violation within thirty
(30) days after receipt of such notice; or
(iii) receives a notice of violation of the terms or
conditions of any license or permit required by AGENT or its employees in the
conduct of AGENT's CRS business and fails to correct such violation, or to
terminate the employment of such employee(s), within the time period specified
in such notice, if any, or within thirty (30) days after receipt of such notice,
whichever is earlier.
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B. BCN shall also have the right to terminate this Agreement
if AGENT fails to comply with any material provision of this Agreement, or any
tariff relating to CRS, and does not correct such failure within thirty (30)
days after written notice of such failure to comply is delivered to AGENT or if
the nature of such default is such that it cannot be cured within such thirty
(30) day period, AGENT is diligently attempting to cure such default.
C. BCN shall also have the right to terminate this Agreement
if BCN determines, in its reasonable discretion, that AGENT has inflated or
otherwise manipulated its count of Gross Additional Customers by falsifying
applications, adding nonexistent Subscribers, or by any other means or methods,
and does not correct such non-compliance within thirty (30) days after written
notice of such failure to comply is delivered to AGENT or if the nature of such
default is such that it cannot be cured within such thirty (30) day period,
AGENT is diligently attempting to cure such default.
22.4 TERMINATION BY EITHER PARTY. Either party shall have the right to
terminate this Agreement effective upon written notice if:
A. the other party makes an assignment for the benefit of
creditors;
B. an order for relief under Title 11 of the United States Code is
entered by any United States Court against the other party; or
C. a trustee or receiver of any substantial part of the other
party's assets is appointed by any Court.
22.5 MUTUAL AGREEMENT. This Agreement may be terminated at any time by
mutual written agreement of the parties.
ARTICLE XXIII
OBLIGATIONS OF AGENT UPON TERMINATION OR EXPIRATION
AGENT agrees that upon the expiration or termination of this Agreement,
AGENT and its owner(s) and Affiliates will: (1) not thereafter use any actual or
similar Marks, or any actual or similar trade name, service ▇▇▇▇, trademark,
logo, insignia, symbols or decorative designs theretofore used by AGENT in the
conduct of its CRS business, in any manner or for any purpose except that AGENT
and its owner(s) may use or continue to use any trade name, service ▇▇▇▇, logo,
insignia, symbols or decorative designs AGENT or its owner(s) used in any
business prior to the date of this Agreement; and will not utilize for any
purpose any actual or similar trade name, trade or service ▇▇▇▇ or other
commercial symbol or in any manner, identify itself or
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any business as associated with BCN or an Affiliate of BCN; (2) return to BCN
all advertising and marketing materials, forms, signage, and other materials
containing any ▇▇▇▇ or otherwise identifying or relating to BCN's CRS business
in the Area and cancel any pending orders for advertising which may be canceled
without penalty; (3) take such action as may be required to cancel all
fictitious or assumed name or equivalent registrations relating to any ▇▇▇▇; or
authorize BCN, and any officer of BCN, as AGENT's attorney in fact, to take such
actions as may be required to cancel such fictitious or assumed name or
equivalent registrations, and if AGENT fails or refuses to do so, all
governmental agencies administering fictitious or assumed name or equivalent
registrations may accept and rely upon appropriate documents executed by BCN or
its officer canceling any such registration; (4) covenant to BCN that AGENT will
not attempt to solicit current BCN CRS Subscribers for referral to any
competitive entity providing cellular radio service [nothing herein shall
prevent AGENT from selling CRS to the public at its retail stores]; (5) return
all Equipment belonging to BCN within ten (10) days after termination or
expiration.
ARTICLE XXIV
COVENANTS NOT TO COMPETE
24.1 NO COMPETITION DURING TERM OF AGREEMENT; EXCLUSIVITY. AGENT
acknowledges that BCN has granted the rights herein in material part in
consideration of AGENT's agreement to act exclusively for BCN in the Exclusive
Markets. As a consequence, during the term of this Agreement (and any extensions
thereof), AGENT agrees that AGENT, any affiliate, or persons owning a
controlling interest in AGENT or an Affiliate will not, directly or indirectly
at any location, in the Exclusive Markets, (a) solicit, sell, offer or accept
offers for a Competitive Service in the Exclusive Markets, (b) induce or refer
any actual or prospective Subscriber of BCN's CRS to subscribe to a Competitive
Service in the Exclusive Markets, (c) provide any subscriber leads to a
Competitive Service in the Exclusive Markets, or (d) activate Subscribers
through a reseller or act as a reseller of Service, whether for
telecommunications service offered by any person, entity, or business (other
than BCN) in the Exclusive Markets. Competitive Service means any
facilities-based carrier, any reseller, or any agent thereof, which uses CMRS or
CRS.
24.2 Further during the term of this Agreement (and any extensions
thereof), AGENT agrees that AGENT, any affiliate, or persons owning a
controlling interest in AGENT or an Affiliate will not, directly or indirectly
at any location otherwise operated by Agent (a) solicit, sell, offer or accept
offers for a competitive CRS in the Area, (b) induce or refer any actual or
prospective Subscriber of BCN's CRS to subscribe to a Competitive Service in the
Area, (c) provide any subscriber leads to a competitive CRS provider in the
Area, or (d) activate Subscribers through a reseller or act as a reseller of
CRS, in the Area.
24.3 Notwithstanding anything herein to the contrary, for so long as
any location in the
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***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMMISSIONS.
Non-Exclusive Markets continue to display the name Cellular Warehouse, AGENT
agrees that AGENT, any affiliate, or persons owning a controlling interest in
AGENT or an Affiliate will not, directly or indirectly at any such location, (a)
solicit, sell, offer or accept offers for a Competitive Service in the
Non-Exclusive Markets, (b) induce or refer any actual or prospective Subscriber
of BCN's CRS to subscribe to a Competitive Service in the Area, (c) provide any
subscriber leads to a Competitive Service in the Non-Exclusive Markets, or (d)
activate Subscribers through a reseller or act as a reseller of Service, whether
for telecommunications service offered by any person, entity, or business (other
than BCN) in the Non-Exclusive Markets.
24.4 GEORGIA. Notwithstanding the forgoing, Agent may continue to sell
CRS at those locations operated by Agent at which Agent sells CRS and CMRS on
behalf of Airtouch Cellular of Georgia as of the date of this agreement.
24.5 ***
ARTICLE XXV
SEVERABILITY AND SUBSTITUTION OF VALID PROVISIONS
Except as expressly provided to the contrary herein, each term and
condition of this Agreement, and any portion thereof, shall be considered
severable and if, for any reason, any such provision hereof is held to be
invalid, contrary to, or in conflict with any applicable present or future law,
regulation or public policy in a final, unappealable ruling issued by any court,
agency or tribunal with competent jurisdiction in a proceeding to which BCN is a
party, that ruling shall not impair the operation of, or have any other effect
upon, such other portions of this Agreement as may remain otherwise enforceable,
which shall continue to be given full force and effect and bind the Parties
hereto, although any portion held to be invalid shall be deemed not to be a part
of this Agreement from the date the time for appeal expires, if AGENT is a party
thereto, otherwise upon AGENT's receipt of a notice of nonenforcement thereof
from BCN.
To the extent that Article XXIII or XXIV hereof contains or imposes a
restriction upon AGENT that is deemed unenforceable by virtue of its scope in
terms of area, business activity prohibited and/or length or time, but could be
enforceable by reducing any or all thereof, AGENT and BCN agree that same shall
be enforced to the fullest extent permissible under the laws and public policies
applied in the jurisdiction in which enforcement is sought. BCN and
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AGENT shall mutually agree to a modification of any invalid or unenforceable
term or condition of Article XXIII or XXIV to the extent required to be valid
and enforceable. Such modifications to this Agreement shall be required only in
the area directly affected by any such ruling.
ARTICLE XXVI
WAIVER OF OBLIGATIONS
BCN or AGENT may by written instrument unilaterally waive or reduce any
obligation of or restriction upon the other under this Agreement, effective upon
delivery of written notice thereof to the other and such other effective date
stated in the notice of waiver.
Whenever this Agreement requires the consent of a Party, such request
shall be in writing and no consent may be unreasonably withheld. All consents or
withholding of consent with reasons therefor shall be in writing. Neither Party
makes any guarantees upon which the other may rely, and assumes no liability or
obligation to the other, by granting any waiver, approval or consent to the
other, or by reason of any neglect, delay or denial of any request therefor. Any
waiver granted by either Party shall be without prejudice to any other right
that Party may have, will be subject to continuing review, and may be revoked,
at the waiving Party's sole discretion, at any time and for any reason,
effective upon delivery to the other of ten (10) days' prior written notice.
BCN and AGENT shall not be deemed to have waived or impaired any right,
power or option reserved by this Agreement (including, without limitation, the
right to demand exact compliance with every term, condition and covenant herein,
or to declare any breach hereof to be a default and to terminate this Agreement
prior to the expiration of its term), by virtue of any custom or practice of the
Parties at variance with the terms hereof or any failure, refusal or neglect of
BCN or AGENT to exercise any right under this Agreement or to insist upon exact
compliance by the other with its obligations hereunder, including, without
limitation, any rule or procedure, or any waiver, forbearance, delay, failure or
omission by BCN to exercise any right, power or option, whether of the same,
similar or different nature, with respect to one or more other authorized
agents.
ARTICLE XXVII
RIGHTS OF PARTIES ARE CUMULATIVE
The rights of BCN and AGENT hereunder are cumulative and no exercise or
enforcement by BCN or AGENT of any right or remedy hereunder shall preclude the
exercise or enforcement by BCN or AGENT of any other right or remedy hereunder
of which BCN or AGENT is entitled by law to enforce.
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ARTICLE XXVIII
CONFIDENTIAL INFORMATION
Any specifications, drawings, sketches, models, samples, data, computer
programs or documentation, or technical or business information ("Information")
furnished or disclosed by BCN to AGENT hereunder shall be deemed the exclusive
property of BCN, including title to copyright in all copyrightable material,
and, when in tangible form, shall be returned to BCN upon completion or
termination of authorized work.
Further, the Parties hereby agree that Subscriber lists and related
information or data are the exclusive property of BCN and are to be used by
AGENT, its officers, employees, Subagents, subcontractors and servants solely in
the performance of its duties and obligations hereunder.
Unless any confidential information was previously known to AGENT free
of any obligation to keep it confidential, or has been or is subsequently made
public by BCN or a third party, it shall be held in confidence by AGENT, shall
be used only for the purposes hereunder, and may be used for other purposes only
upon such terms and conditions as may be mutually agreed upon in writing.
If AGENT is served with process to obtain Information, AGENT shall
immediately notify BCN which shall, in addition to AGENT's efforts, if any, have
the right to seek to quash such process.
Unless marked "proprietary", any Information furnished or disclosed by
AGENT to BCN shall not obligate BCN to hold such Information in confidence.
ARTICLE XXIX
INDEMNITIES
29.1 INDEMNIFICATION OF BCN. AGENT agrees to indemnify, defend and hold
BCN harmless against any liability for any claims or demands arising out of the
conduct of business by AGENT that are the result of AGENT's negligent or willful
act or failure to act, including, but not limited to, any claims or demands (a)
by AGENT's employees or any other persons, including but not limited to
Subscribers, for bodily injury, damage to property or other damages caused by
the acts or omissions of the AGENT or its subcontractors, or the employees or
agents of any of them, and (b) by AGENT's employees under worker's compensation
or similar laws. AGENT also agrees to indemnify, defend and hold BCN harmless
against any liability arising out of any allegedly unauthorized use of a
trademark, patent, copyright, process, idea, method or devise by AGENT covered
by this Agreement.
If two or more persons are at any time AGENT hereunder, whether or not
as partners or joint venturers, their obligations and liabilities to BCN shall
be joint and several.
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29.2 PROCEDURES WITH RESPECT TO INDEMNIFICATION. All indemnities
created in this Agreement shall include indemnification of Indemnitees
Affiliates, directors, officers, employees, agents, successors and assigns and
their heirs, legal representatives, and assigns thereof. The indemnification
shall be for all claims arising out of the specific event referred to in this
Agreement which is covered by the indemnification, including all obligations,
actual and consequential damages and costs reasonably incurred in the defense of
any claim, including without limitation reasonable accountant's, attorneys', and
expert witness fees, costs of investigation and proof of facts, court costs, and
other litigation expenses, including, but not limited to, travel and living
expenses. Written notice of claim shall be forwarded promptly by the Indemnitee
to the Indemnitor and there shall be no settlement of the claim without the
consent of the Indemnitor, which consent shall not be unreasonably withheld.
Indemnitee shall have the right to defend any such claim in which it is named as
a defendant at its own cost and expense. The indemnities created by this
Agreement shall continue in full force and effect subsequent to and
notwithstanding the expiration or termination of this Agreement. Provisions for
indemnification in this Agreement are not in lieu of and do not supplant
insurance coverage required in the Agreement, and are not intended to act as
insurance.
ARTICLE XXX
MUTUAL GENERAL RELEASE
AGENT and BCN, subject to the exceptions set forth below, shall and do
hereby release and discharge each other and their parents, partners, officers,
directors, employees and assigns from any and all claims, losses, liabilities,
obligations, damages and actions of any kind, known or unknown, up to the date
hereof.
This Mutual Release shall not apply to the following claims,
liabilities or obligations:
1. BCN's right to offset against commissions owed to AGENT any amounts
due and owing to BCN for equipment sold to AGENT by BCN or moneys owed to BCN
for any other reason;
2. BCN's right to offset against commissions owed to AGENT any amounts
(a) determined by BCN to be due as the result of fraud by AGENT; (b) determined
by BCN to be due to BCN by AGENT for Subscribers that fail to remain on service
for the chargeback period required by the agreement between BCN and AGENT; and
(c) determined by BCN to be due to BCN by AGENT for payments due under Exhibit
B, Section I - Up-Front Compensation -Paragraph H;
3. Due to AGENT for residual or other compensation to which AGENT may
be entitled.
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ARTICLE XXXI
MISCELLANEOUS
31.1 GOVERNING LAW. Except to the extent governed by United States law
that preempts state law, this Agreement shall be interpreted under and governed
by the laws of the state in which the Area is located.
31.2 TESTIMONY. Matters relating to this Agreement may be in issue
before various regulatory bodies. Upon reasonable notice, AGENT agrees to fully
cooperate with BCN regarding any such matters including willingly providing
employees of AGENT to testify at appropriate times regarding any aspect of this
Agreement or other related issues. BCN agrees to reimburse AGENT for reasonable
costs expended in supplying such testimony.
31.3 BINDING EFFECT. This Agreement, including the preambles and
Exhibits (as amended), is binding upon the parties hereto, their respective
executors, administrators, heirs, assigns and successors in interest.
31.4 IMPOSSIBILITY OF PERFORMANCE. Neither BCN nor AGENT shall be
liable for loss or damage or deemed to be in breach of this Agreement if its
failure to perform its obligations results from: (1) compliance with any law,
ruling, order, regulation, requirement or instruction of any federal, state or
municipal government or any department or agency thereof or court of competent
jurisdiction; (2) acts of God; (3) acts or omissions of the other party; or (4)
fires, strikes, embargoes, war, insurrection or riot. BCN shall not be liable
for loss or damage or be deemed to be in breach of this Agreement if
technological changes occur which prohibit BCN from issuing numbers to
Subscribers. Any delay resulting from any of said causes shall extend
performance accordingly or excuse performance, in whole or in part, as may be
reasonable.
31.5 SURVIVAL. The terms, provisions, obligations, representations, and
warranties contained in this Agreement that by their sense and context are
intended to survive the performance thereof by either or both Parties hereunder
shall so survive the completion of performances and termination of this
Agreement, including the making of any and all payments due hereunder.
31.6 LICENSES. No licenses, express or implied, under any patents are
granted by BCN or its Affiliates to AGENT hereunder.
31.7 NOTICES AND PAYMENTS. All payments due AGENT shall be made to such
address or bank as AGENT from time to time designates. All notices, consents and
reports required to be delivered by the provisions of this Agreement shall be
deemed so delivered: (1) when delivered personally; or (2) seventy-two (72)
hours after being mailed, registered or certified mail, return
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receipt requested, postage prepaid, to the most current principal business
address of which the notifying Party has been notified ("Business Address"); or
(3) one business day after being delivered to a reputable overnight courier
service, prepaid, marked for next day delivery, addressed to the addressee at
the Business Address; or (4) on the first business day after receipt, if
delivered by facsimile transmission to the FAX number (if any) of the receiving
party, if receipt is confirmed by the addressee either orally or in writing. All
reports, financial records and other information required by this Agreement
shall be directed to such other persons and places as BCN may direct from time
to time.
31.8 PUBLICITY. AGENT agrees not to initiate any cellular
service-related public relations activities incorporating BCN's corporate names,
including but not limited to news releases, news conferences, news briefings or
any other type of function involving reporters, editors or news directors of any
news organizations, without first consulting BCN public relations personnel.
Further, AGENT agrees to refer all cellular service-related questions from news
organizations to BCN public relations personnel.
31.9 PRODUCT LIABILITY. BCN shall not be liable or responsible for nor
warrant any products or accessories sold by AGENT. Any and all problems or
claims from said sale shall be referred back to AGENT.
31.10 HEADINGS. The headings in this Agreement are for convenience only
and shall not be construed to define or limit any of the terms herein.
31.11 PRIOR AGREEMENTS. By signing hereunder AGENT acknowledges and
agrees that as of the effective date of this Agreement, any Agreement providing
compensation from BCN to AGENT for new Subscriber enrollment which AGENT has
with BCN for the Area(s) referenced herein shall be null and void and no further
compensation will be paid under the prior Agreements by BCN unless otherwise
provided herein.
31.12 ENTIRE AGREEMENT. This Agreement, including the preambles and
exhibits, sets forth the entire Agreement between the parties as to the subject
matter hereof and merges all prior discussions between them, and neither of the
parties shall be bound by any conditions, definitions, understandings, or
representations with respect to such subject matter other than as expressly
provided herein, or as duly set forth subsequent to the effective date hereof in
writing and signed by the duly authorized representatives of both parties.
ARTICLE XXXII
DISPUTE RESOLUTION
DISPUTE RESOLUTION. Any dispute arising out of or related to this Agreement
which cannot be resolved by negotiation shall be settled by binding arbitration
in accordance with the
-25-
27
J.A.M.S./ENDISPUTE Arbitration Rules and Procedures ("Endispute Rules"), as
amended by this Agreement. The parties will jointly select one (1) independent
arbitrator familiar with the wireless telecommunications industry, provided that
if the parties cannot agree on an arbitrator, the selection shall be made by
J.A.M.S./ENDISPUTE in accordance with the Endispute Rules. The cost of
arbitration, including the fees and expenses of the Arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. Each
party shall bear the costs of preparing and presenting its case. The parties
agree that this provision and the Arbitrator's authority to grant relief shall
be subject to the United States Arbitration Act, 9 U.S.C. 1-16 ET. SEQ.
("USAA"), the provisions of this Agreement and the ABA-AAA Code of Ethics for
Arbitrators in Commercial Disputes. In the event of a conflict between the USAA
and the Endispute Rules, the Endispute Rules shall govern. The parties agree
that the Arbitrator shall have no power or authority to make awards or issue
orders of any kind except as expressly permitted by this Agreement, and in no
event shall the Arbitrator have the authority to make any award that provides
for punitive or exemplary damages. The Arbitrator's decision shall follow the
plain meaning of the relevant documents and shall be final and binding. The
award may be confirmed and enforced by any court of competent jurisdiction. All
post-award proceedings shall be governed by the USAA.
ALL DISCUSSIONS AND DOCUMENTS PREPARED TO ANY ATTEMPT TO RESOLVE A
DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR SETTLEMENT PURPOSES ONLY
AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM AS AN ADMISSION OR
OTHERWISE AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL
AND STATE COURT RULES.
-26-
28
IN WITNESS WHEREOF the parties hereto have executed, sealed and
delivered this Agreement in two counterparts on the day and year first above
written.
BELLSOUTH MOBILITY INC LET'S TALK CELLULAR & WIRELESS, INC.
as provided herein on behalf of entities
listed on Exhibit A for specific markets
noted
BY: /s/ ▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------------
(PRINT OR TYPE NAME) (PRINT OR TYPE NAME)
TITLE: Vice President TITLE: President
DATE: 4/2/98 DATE: 3-30-98
-27-
29
*** CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMMISSIONS.
MEMPHIS
Number of Active New Subscribers
Who Have Completed 150 Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------------
0 - 999 ***
1000 - 2499 ***
2500 - 3999 ***
4000 - 5999 ***
6000 and above ***
JACKSONVILLE
Number of Active New Subscribers
Who Have Completed 150 Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------------
0 - 1000 ***
1001 - 2500 ***
2501 - 4000 ***
4001 - 6000 ***
6001 and above ***
ORLANDO
Number of Active New Subscribers
Who Have Completed 150 Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------------
0 - 999 ***
1000 - 2499 ***
2500 - 4499 ***
4500 - 6999 ***
7000 and above ***
30
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMMISSIONS.
BIRMINGHAM
Number of Active New Subscribers
Who Have Completed 150 Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------------
0 - ▇▇▇ ***
▇▇▇ - ▇▇▇▇ ***
1751 - 3500 ***
3501 - 6000 ***
6001 and above ***
HUNTSVILLE
Number of Active New Subscribers
Who Have Completed 150 Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------------
0 - ▇▇▇ ***
▇▇▇ - ▇▇▇▇ ***
1251 - 2200 ***
2201 - 3500 ***
3501 and above ***
31
AUTHORIZED AGENT AREA AND LOCATIONS
EXHIBIT A
AREA:
This Exhibit A sets forth the Area in which AGENT is authorized to
distribute CRS as an AGENT for BCN.
AREA: LICENSEE:
----- ---------
FCC Market No Market Name Primary City Licensee Name
Atlanta
234 Athens, GA Atlanta-Athens MSA Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Atlanta-Athens MSA Limited Partnership
371 GA l - ▇▇▇▇▇▇▇▇▇ Georgia RSA No. 1 Limited Partnership
372 GA 2(B1) - Dawson Georgia RSA No. 2 Limited Partnership
372 GA 2(B3) - Dawson Atlanta-Athens MSA Limited Partnership
373 GA 3 - Chattooga Georgia RSA No. 3 Limited Partnership
374 GA 4(B3) - Jasper Northeastern Georgia RSA Limited Partnership
374 GA 4(B1) - Jasper Atlanta-Athens MSA Limited Partnership
375 GA 5(B1) - ▇▇▇▇▇▇▇▇ Atlanta-Athens MSA Limited Partnership
376 GA 6(B4) - Spalding American CellularCommunications Corp.
376 GA 6(B5) - Spalding Atlanta-Athens MSA Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ Florida Cellular Service, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-
▇▇▇▇ ▇▇▇▇▇, ▇▇ Florida Cellular Service, Inc.
360 FL l(B2) - ▇▇▇▇▇▇▇ Florida Cellular Service, Inc.
361 FL 2(B2) - Glades Florida RSA No. 2B L.P.
361 FL 2(B3) - Glades Florida Cellular Service, Inc.
370 FL 11(B1)-Monroe Florida Cellular Service, Inc.
32
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMMISSIONS.
EXHIBIT B
AGENT COMPENSATION
I
STANDARD UP-FRONT COMPENSATION
AGENT will be paid *** for each New Subscriber enrolled in the Area
under on a twelve month or longer digital service package having a minimum
monthly charge of more than *** or greater and for which BCN does not pay
reduced compensation as provided Article VIII. AGENT will be paid *** for
each new Subscriber enrolled in the Area under on a twelve month or longer
non-digital service package having a minimum monthly charge of *** or
greater and for which BCN does not pay reduced compensation as provided Article
VIII. AGENT will be paid *** for each new Subscriber enrolled in the Area
under on a twelve month or longer service package having a minimum monthly
charge of less *** and for which BCN does not pay reduced compensation as
provided in Article VIII.
A. The above compensation shall be paid within thirty (30) working days
following the close of the commission cycle in the Area in which the
Subscriber began using BCN's service. AGENT will not be paid for
Subscribers who subscribe to BCN's service outside of any area
specified in this Agreement. BCN reserves the right, at any time and
from time to time, to change the period used to determine payment of
AGENT compensation, provided, however, that such cycle shall not exceed
thirty (30) days. AGENT shall be notified in writing of any change in
such period.
If a Subscriber does not complete 150 days of continuous active
service (as defined in Section V of this Exhibit B) in the Area in
which the Subscriber began using BCN's service, AGENT shall be required
to repay to BCN the amount of compensation paid by BCN to AGENT for
such Subscriber. Such repayment may be deducted by BCN from amounts
otherwise owed to AGENT by BCN. If such amount is not deducted by BCN,
such repayment shall be made by AGENT to BCN within thirty (30) days
after BCN notifies AGENT that the Subscriber has failed to complete
[150] days of continuous active service in the Area in which the
Subscriber began using BCN's service.
B. In order to be paid within the time period set forth in Paragraph A
above, AGENT must submit all deposits, ▇▇▇▇▇▇▇ payments and appropriate
paperwork to BCN no later than thirty (30) days from the date the
service request was submitted to BCN by the AGENT. No compensation will
be paid unless all paperwork is accurately completed to BCN's
satisfaction and in accordance with BCN's procedures. Additionally, BCN
shall not be obligated to pay any compensation to AGENT for any
Subscriber whom AGENT enrolls on BCN's CRS with any unapproved FCC type
Equipment or Equipment which does not meet the manufacturer's
recommendations. In order to ensure that compensation is
33
appropriately credited to AGENT's account, AGENT must supply BCN with
the correct security code when activating Subscribers.
If, notwithstanding the above, BCN pays AGENT compensation for a
Subscriber before all paperwork is processed, BCN may, in its
discretion require AGENT to repay to BCN the amount of compensation
paid by BCN to AGENT for such Subscriber. Such repayment may be
deducted by BCN from amounts otherwise owed to AGENT by BCN. If such
amount is not deducted by BCN, such repayment shall be made by AGENT to
BCN within thirty (30) days after BCN notifies AGENT that the repayment
is due. After such repayment is made, if AGENT submits all completed,
appropriate paperwork for such Subscriber within ninety (90) days from
the date of such repayment, BCN shall repay to AGENT the amount due as
compensation for such Subscriber.
C. AGENT is responsible for obtaining and remitting to BCN the deposit, if
any, required from subscribers enrolled by AGENT. If BCN does not
receive such deposit within thirty (30) days of the Subscriber's
activation date, BCN may, in its discretion, require AGENT to pay to
BCN the amount of the deposit due for such Subscriber's account. Such
payment may be deducted by BCN from amounts otherwise owed to AGENT by
BCN. If such amount is not deducted by BCN, such payment shall be made
by AGENT to BCN within thirty (30) days after BCN notifies AGENT that
the payment is due.
D. A Subscriber who is enrolled by AGENT and has attained 150 days of
continuous active service and who then voluntarily disconnects and
reconnects within a 120 day period shall not be included in AGENT's
count of Gross Additional Customers and BCN shall not pay any
additional Up-Front compensation to AGENT for any such Subscriber.
If, notwithstanding the above, BCN pays AGENT compensation for a
Subscriber described in this Paragraph D, BCN may, in its discretion
require AGENT to repay to BCN the amount of compensation paid by BCN to
AGENT for such Subscriber. Such repayment may be deducted by BCN from
amounts otherwise owed to AGENT by BCN. If such amount is not deducted
by BCN, such repayment shall be made by AGENT to BCN within thirty (30)
days after BCN notifies AGENT that the repayment is due. Provided,
however, BCN shall not require AGENT to repay any compensation which
was paid for such Subscriber after one-hundred-twenty (120) days from
the date of the last service activation of such Subscriber.
Additionally, if a Subscriber changes telephone numbers or Equipment,
such Subscriber shall not be included in AGENT's count of Gross
Additional Customers because of such change, and BCN shall not pay any
additional compensation to AGENT for any such Subscriber because of
such change.
The provisions of this Paragraph D shall apply only to Subscriber
enrollment in the Area in which the Subscriber began using BCN's
service.
34
E. A Subscriber who is enrolled by AGENT and has attained
one-hundred-fifty 150 days of continuous active service and who then is
disconnected for nonpayment and is subsequently reconnected shall not
be included in AGENT's count of Gross Additional Customers and BCN
shall not pay any additional Up-Front compensation to AGENT for any
such Subscriber.
F. Should BCN, in its sole discretion, determine that AGENT has inflated
or otherwise manipulated its count of Gross Additional Customers by
falsifying applications, adding nonexistent Subscribers, adding
Subscribers who do not use minimal amounts of airtime, or by any other
means or methods, then BCN shall, in addition to any other rights it
may have under this Agreement, have the right to collect from AGENT,
and AGENT agrees to pay to BCN, all payments made to AGENT by BCN for
each such Subscriber and all amounts due for unpaid bills for service
for each such Subscriber. AGENT agrees to pay any amounts due to BCN
within thirty (30) days after BCN provides evidence to AGENT of such
actions. Provided, however, BCN shall not require AGENT to repay any
compensation which was paid for such Subscriber after twelve (12)
months from such Subscriber's service activation date.
G. If AGENT activates a cellular telephone number and submits the number
to BCN, and on the date of submission of the number to BCN the
equipment is not installed or picked up by the Subscriber, or if the
Subscriber returns the equipment with less than five (5) minutes usage
(a "no install"), AGENT agrees to notify BCN of the no install by the
close of business on the second day following the submission of the
number to BCN. If AGENT fails to notify BCN of the no install within
the above time, AGENT agrees to pay BCN, or allow BCN to deduct from
compensation otherwise due to AGENT, the sum of $50.00 per no install
to compensate BCN for the costs incurred in processing the no install.
BCN shall also have the right to deduct any compensation which was paid
for such a no install. If BCN agrees to terminate a Subscriber
agreement, it shall not be a no install.
H. If AGENT fails to notify a Subscriber of any charges due for BCN's CRS,
including activation fees, access charges, or per minute charges, or if
AGENT misrepresents or provides inadequate information about any such
charges, the size of the coverage area, or anything else about BCN's
CRS to a Subscriber, BCN shall have the right to deduct from
commissions otherwise due to AGENT, or AGENT agrees to pay BCN upon
demand, an amount equal to any amount which BCN pays to or allows the
Subscriber for such charges of which the Subscriber was not notified or
which were misrepresented to the Subscriber. Further, if AGENT fails to
program any Subscriber Equipment correctly and according to
recommendations made and/or standards set by the manufacturer and/or
BCN (such recommendations and/or standards shall include but not be
limited to programming for expanded spectrum), BCN shall have the right
to deduct from compensation otherwise due to AGENT, or AGENT agrees to
pay BCN upon demand, an amount determined by BCN for such faulty
programming. BCN will notify AGENT in advance of such amount.
35
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
I. If AGENT activates a number and the billed name and address reflect the
AGENT's name and/or address and not the actual Subscriber (or his or
her employer), BCN may charge back the compensation paid to AGENT and
AGENT agrees to be responsible for all unpaid bills for service for
such a number.
J. BCN may, in its discretion in the event ESN changes are excessive,
impose a charge upon AGENT for ESN changes. Prior to imposing any such
charge, BCN shall notify AGENT and allow AGENT thirty (30) days to
correct the problem. Such charge shall be in accordance with the ESN
charge guidelines specified by management in the Area.
K. No compensation will be paid to AGENT for numbers activated by, and in
the name of, AGENT, its Subagents, affiliates, employees, any person
included in the definition of AGENT, and the like.
II
RESIDUAL COMPENSATION FOR CUSTOMERS
ADDED PRIOR TO THE COMMENCEMENT OF THIS
AGREEMENT
A. Except as provided here, Residual Compensation shall be paid for
subscribers included in the subscriber bases of Let's Talk Cellular of
America Inc. f/k/a Let's Talk Cellular of America, Inc. and Cellular
Warehouse, Inc. as of the date of this agreement (the "Residual Bases")
and in accordance with the rate schedules applicable to those various
Residual Bases (the "Rates") (those rate schedules are attached to this
Exhibit "B" as Attachment B4). Subscribers activated after the date of
this agreement shall not be included in the Residual Bases. All
Subscribers included in the Residual Bases shall be deemed to have been
activated by Agent.
B. Residual Compensation for all the Residual Bases shall terminate upon
the first to occur of any of the following events:
(i) the expiration or termination of this Agreement;
(ii) the termination of the service activated for a Subscriber by
Agent on behalf of BCN;
(iii) ***;
(iv) ***;
(v) Agent establishing any new point of distribution in the Area
(other than the Laser
36
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
Electronics store to be acquired by AGENT) from which Agent
activates, sells or otherwise distributes *** other than
exclusively on behalf of BCN; ***
C. Residual Compensation for Residual Bases in each of the Non-Exclusive
Markets shall be reduced as follows:
(i) ***
(ii) ***
(iii) ***
(iv) ***
(v) ***
37
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
***
(vi) ***
D. Residual Compensation for Residual Bases in Exclusive Markets shall be
paid as follows:
(i) ***
(ii) ***
(iii) ***
***
38
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
***
E. Residual Compensation will be based on the aggregate number of
Subscribers billed during the month who have completed 150 days of
continuous active service. Residual Compensation shall be paid within
thirty (30) working days following the close of the last billing period
in the Area in which the Subscriber completed 150 days of continuous
active service. Should BMI implement split cycle billing, BMI reserves
the right, at any time and from time to time, to change the period used
to determine payment of Residual Compensation. AGENT shall be notified
in writing of any change in such period. Residual Compensation shall be
paid for each Subscriber until the Subscriber's mobile telephone number
is terminated or until this Agreement terminates, whichever event shall
first occur.
III
RESIDUAL COMPENSATION FOR NEW SUBSCRIBERS
ADDED AFTER COMMENCEMENT OF AGREEMENT
BMI will pay to AGENT Residual Compensation, as defined below, for all
Subscribers who activate service on or after the commencement date of this
Agreement as follows:
A monthly commission will commence with the first day of a Subscriber's
service but will be paid to AGENT retroactively after a Subscriber defined above
has completed 150 days of continuous active service. The amount of the monthly
commission AGENT will be paid *** of the amount BMI bills that Subscriber for
monthly access and airtime usage, EXCLUDING ancillary services, insurance,
roamer and Equipment charges, taxes and tolls ("Residual Compensation"). Tolls
shall be defined as calls which originate or terminate outside of the Area.
Residual Compensation will be based on the aggregate number of Subscribers
billed during the month who have completed 150 days of continuous active
service.
Residual Compensation shall be paid within thirty (30) working days
following the close of the last billing period in the Area in which the
Subscriber completed 150 days of continuous active service. Should BMI implement
split cycle billing, BMI reserves the right, at any time
39
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
and from time to time, to change the period used to determine payment of
Residual Compensation. AGENT shall be notified in writing of any change in such
period.
Residual Compensation shall be paid for each Subscriber until the
Subscriber's mobile telephone number is terminated or until this Agreement
terminates, whichever event shall first occur.
IV
PAYMENT FOR SERVICE OPTIONS
BCN reserves the right to determine whether AGENT will receive
compensation for service options when those options are introduced or
implemented. Payment for service options shall be determined by the appropriate
BCN Manager in the Area.
V
COMPENSATION MODIFICATION
Starting *** , BCN shall have the right to adjust up-front compensation
in accordance with the following:
***
VI
GENERAL
A. Continuous active service refers to the use of BCN's CRS without
interruption, either voluntary or involuntary.
For purposes of calculating continuous active service, a Subscriber who
is disconnected for nonpayment and is reconnected to BCN's service in
the same billing cycle shall be considered as having continuous active
service.
B. If AGENT receives Equipment under any BCN program and invoices are not
timely paid, or if AGENT owes BCN amounts for any other reason,
including, but not limited to, all amounts due for unpaid bills for
cellular service provided to AGENT or its officers or principals, BCN
reserves the right to deduct such unpaid amounts from AGENT's
compensation.
AGENT understands that it will be invoiced for lost, stolen and damaged
Equipment
40
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
which has been shipped by BCN or BCN's supplier in accordance with
standard practices.
C. If AGENT believes there are any discrepancies in commission payments,
AGENT must submit a request for reconciliation within ninety (90) days
from the date of such payment.
B. If BCN believes that AGENT may cease doing business as a BCN agent or
if BCN determines that this Agreement may terminate for any other
reason, then BCN may, in its sole discretion, withhold compensation
otherwise due to AGENT in order to cover chargebacks or other
deductions from AGENT's compensation that BCN may make for Subscribers
who do not complete 150 days of continuous active service. BCN shall
inform AGENT in such a case of the reasons for withholding
compensation. The amount of such commissions to be withheld shall not
exceed five (5) times the average monthly commissions paid to AGENT.
VII
COOPERATIVE ADVERTISING
Agent shall also be paid *** per new Subscriber activation on a twelve
month or longer service package having a fixed monthly charge of *** or greater
as cooperative advertising reimbursement ("Coop Dollars"). All such funds shall
be used towards advertising BCN's CRS. BCN agrees that Coop Dollars payable
hereunder shall be *** in accordance with the provisions of this Exhibit B,
Section I. Agent agrees that all advertising paid for with Coop Dollars shall
conform to BCN's cooperative advertising guidelines and that no such advertising
shall include any reference to any other Commercial Mobile Radio Service
Provider. Agent specifically agrees that in Georgia where Agent shall be
representing both BellSouth Mobility Inc. CRS and Airtouch of Georgia CRS, that
*** whether paid for with Coop Dollars or not. Agent agrees that if in the
opinion of BCN, Agent's advertising does not conform to BCN's cooperative
advertising guidelines, BCN may suspend temporarily or permanently payment of
Coop Dollars after thirty (30) days prior written notice from BCN to AGENT of
the nature of such non-conformance and the failure of AGENT to correct such
non-conformance. Agent agrees to provide to BCN on a monthly basis evidence that
Agent has spent Coop Dollars on advertising conforming to BCN's cooperative
advertising guidelines.
41
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
B1
[CELLULAR WAREHOUSE GEORGIA LOCATIONS]
---------------------------------------------------------------------------------------------------------------------------------
Alpharetta (AL) *** ▇▇▇-▇▇▇-▇▇▇▇ 770-887-0202 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Athens (AH) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Athens West ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Austell (AU) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Heritage Hills ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Buckhead (BU) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Peachtree Battle ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Carrollton (CT) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Free Standing ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ (CO) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Market Plaza ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Covington (CV) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Covington Crossing ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Cumming (CU) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Lakeland Plaza ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Dunwoody (DU) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Dunwoody Place II ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Fayetteville (FA) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Kennesaw (KE) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Toys R Us Shopping Ctr ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Lawrenceville (LA) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Springfield Park ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Norcross (NO) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ North Belt Business ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Peachtree Ctr (PE) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Peachtree Center Mall ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Smyrna *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Snellville (SN) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Mountain View Village ▇▇▇▇ ▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ (TU) *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ Briarcliff Village ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
Woodstock *** ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ The Shop at ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Tweeter ***
Kiosks 3 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Stores Metro Atlanta
---------------------------------------------------------------------------------------------------------------------------------
42
B2
[LET'S TALK CELLULAR GEORGIA LOCATIONS]
---------------------------------------------------------------------------------------------------------------------
MALL NAME STORE ADDRESS STORE CITY STORE PHONE STORE FAX
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
Peachtree Center ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
43
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
QUOTAS ***
***
44
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
ATTACHMENT B4
RESIDUAL COMPENSATION FOR NEW SUBSCRIBERS
ON AGENT'S CUSTOMER BASE AS OF THE END OF THE
DECEMBER 1993/JANUARY 1994 COMMISSION CYCLE
MARKET COMMISSION RATE
------ ---------------
Atlanta ***
Atlanta (Southern Cellular Base) ***
Nashville ***
Memphis ***
Jacksonville ***
Orlando ***
Birmingham ***
South Florida ***
South Florida (Cellular Trading Base) ***
RESIDUAL COMPENSATION FOR NEW SUBSCRIBERS
ADDED AFTER DECEMBER 1993/JANUARY 1994 COMMISSION CYCLE
BUT PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT
ATLANTA
Number of Active New
Subscribers Who Have
Completed 150 Days of
Continuous Active
Service Added to
AGENT's Base Since
the December 1994 Residual
Commission Cycle Percent
------------------ -----------
0 - 3500 ***
3501 - 7000 ***
7001 - 12000 ***
12001 - 20000 ***
20001 and above ***
SOUTH FLORIDA
The South Florida post December 1993/January 1994 base shall be divided
into four groups for residual purposes. Group One shall be the Cellular Trading
Activations during the period January 1994
45
***CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
through November 1996 on the Miami MSA system. Group Two shall be the Cellular
Trading Activations during the period January 1994 through November 1996 on the
West Palm Beach MSA system. Group Three shall be the Let's Talk Cellular &
Wireless, Inc. activations. Group Four shall be all other post December
1993/January 1994 activations by Cellular Warehouse. The Let's Talk Cellular &
Wireless, Inc. group shall be paid at [5.5%]. Residual compensation shall be
paid for each group, other than Let's Talk Cellular & Wireless, Inc., without
regard to the number of subscribers in the other groups in accordance with the
following schedule:
Number of Active New
Subscribers Who Have
Completed [150] Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------
0 - 3499 ***
3500 - 5499 ***
5500 - 6299 ***
6300 - 6999 ***
7000 and above ***
NASHVILLE
Number of Active New
Subscribers Who Have
Completed [150] Days of
Continuous Active Service
Added to AGENT's Base
Since the December 1994 Residual
Commission Cycle Percent
------------------ -----------
0 - 999 ***
1000 - 2499 ***
2500 - 3999 ***
4000 - 5999 ***
6000 and above ***
46
Orlando
060 Orlando, FL Orlando SMSA Limited Partnership
Melbourne
137 Melbourne-Titusville- Orlando SMSA Limited Partnership
Palm Bay
Daytona
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Orlando SMSA Limited Partnership
Jacksonville
Jacksonville, FL Jacksonville MSA Limited Partnership
Memphis
036 Memphis, TN/R/MS Memphis SMSA Limited Partnership
Nashville
046 Nashville-Davidson, TN Nashville/Clarksville MSA Limited Partnership
209 Clarksville-Hopkinsville, Nashville/Clarksville MSA Limited Partnership
TN/KY
647 TN 5(B3) - Fayette Nashville/Clarksville MSA Limited Partnership
▇▇▇ ▇▇ ▇- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Limited Partnership
Birmingham
041 Birmingham, AL Alabama Cellular Service, Inc.
47
Huntsville
120 Huntsville, AL Huntsville MSA Limited Partnership
307 AL 1(B1) - Franklin Decatur RSA Limited Partnership
AGENT may open new sales facilities with the Area.
