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CONTRACT NUMBER: C949017S0002
AMENDED AND RESTATED
STRATEGIC ALLIANCE AGREEMENT NO. 2
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
PAGEMART WIRELESS, INC.
CONTRACT MANAGER: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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TABLE OF CONTENTS
1. RECITALS .......................................... 1
2. DEFINITIONS ....................................... 1
3. DESCRIPTION AND SCOPE ............................. 2
4. TERM .............................................. 2
5. TERMINATION ....................................... 2
6. RETENTION OF CUSTOMERS ............................ 3
7. GTE RESPONSIBILITIES ONE-WAY ...................... 4
8. PMWI RESPONSIBILITIES ............................. 4
9. CONSTRUCTION SCHEDULE ............................. 5
10. PAYMENT ........................................... 5
11. OWNERSHIP OF FACILITIES AND FREQUENCIES ........... 6
12. CONFIDENTIAL INFORMATION .......................... 6
13. DISPUTE RESOLUTION ................................ 7
14. GENERAL PROVISIONS ................................ 8
15. MAINTENANCE AND REPAIRS AT GTE OWNED SITES ........ 13
16. SIGNATURES ........................................ 14
EXHIBIT A - GTE AFFILIATES
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AMENDED AND RESTATED
STRATEGIC ALLIANCE AGREEMENT NO. 2
THIS AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT NO. 2 ("Agreement")
is made by and between PageMart Wireless, Inc., a Delaware corporation, with
offices for the purpose of this Agreement located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("PMWI") and GTE Communication Systems Corporation, a
Delaware corporation, acting through its GTE Supply division for the benefit of
itself and its affiliates listed in Exhibit A, with offices located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("GTE") (collectively referred to as the
"Parties" and individually as a "Party").
1. RECITALS
The Parties recognize the mutual benefits to be gained if they cooperate in
the deployment of paging network facilities in the state of Hawaii
("HAWAII") for the provision of wireless messaging and data transmissions.
This Agreement is intended to create a framework and to define the terms
and conditions under which the Parties shall implement their strategic
alliance in a manner that maximally complements the wireless needs of the
Parties.
IN CONSIDERATION of the above Recitals, the terms and provisions set forth
herein, the mutual benefits to be gained by the performance thereof, and
for the good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
2. DEFINITIONS
Facilities - Both One-Way Facilities and NPCS Facilities.
NPCS - (Narrowband PCS) - NPCS services operating in the 901-902 MHz,
930-931, and ▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇.
NPCS FACILITIES - Equipment to be integrated into PMWI's NPCS network
infrastructure for transmission and receipt of NPCS messages which shall
include but not be limited to NPCS paging transmitters and receivers,
satellite downlinks and cable deployed for the transmitting and receiving
of two way paging messaging services.
One-Way Facilities - The GTE-supplied wireless network infrastructure in
the state of Hawaii, which shall include but not be limited to paging
transmitters, satellite downlinks, antennas, and cable being deployed to
PMWI for the transmission of one-way paging/messaging services on PMWI's
One-Way paging frequencies 929.6625 MHz and 929.7125 MHz.
Project - The site specific installation function of NPCS or One-Way
Facilities.
RSA - Resale Agreement No. C989107SC001 previously entered into between
the Parties.
TURN UP DATE - That date when the One-Way Facilities on the island of Oahu
are
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functioning properly and the first local subscriber has been activated.
3. DESCRIPTION AND SCOPE
a. This Agreement will govern the cooperation of the Parties in
connection with any Project in HAWAII involving, without limitation,
the location, design, construction, and management of the Facilities.
b. All telecommunications and wireless services that are the subject of
this Agreement shall be provided in accordance with the rules,
regulations and orders of the applicable state regulatory agency, the
Federal Communications Commission ("FCC") and the courts of the United
States.
c. The obligations of the Parties to cooperate and work together in
connection with any Project shall be as expressly set forth in this
Agreement. Neither Party undertakes by this Agreement or otherwise to
perform or discharge any liability or obligation for the other Party
not specifically contained herein, whether regulatory or contractual,
or to assume any responsibility whatsoever for the conduct of the
business or operations of the other Party. Nothing contained herein is
intended to give rise to a partnership or joint venture between the
Parties or to impose upon the Parties any of the duties or
responsibilities of partners or joint venturers. Neither Party shall
have any right or authority to act for, or to assume, create or incur
any obligation, liability or responsibility of any kind, whether
express or implied, against, in the name of, or on behalf of, the
other Party, except as expressly provided in this Agreement.
d. Unless otherwise specified herein, each Party shall assume and bear
all expenses, costs and fees incurred or assumed by such Party whether
or not the transactions provided for by this Agreement shall be
effectuated.
4. TERM
The term of this Agreement shall commence upon the execution of this
Agreement by both Parties and shall end on December 31, 2004, unless
earlier terminated in accordance with Section 5. The term of this Agreement
may be extended for successive one-year periods following the expiration of
the initial term by mutual written consent of the Parties at least ninety
(90) days prior to the end of the then current term.
5. TERMINATION
a. Termination for Cause. This Agreement may be abandoned or terminated
at any time after the effective date of this Agreement by either
Party's furnishing written notice should the other Party:
i. breach, refuse or fail in any material respect properly to
perform any of its duties, obligations or commitments under this
Agreement, any one of which shall constitute a default, which
default is not substantially cured within thirty (30) days after
receiving written notice specifying the nature of the default;
ii. commence or have commenced against such Party any proceeding,
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whether under court supervision or otherwise, for the liquidation
of such Party, determination of insolvency of such Party,
appointment of a receiver for such Party, assignment for the
benefit of all or substantially all of such Party's creditors, or
the bankruptcy of such Party; or
iii. indefinitely suspend its normal business operations.
If this Agreement is terminated by GTE as a result of PMWI's conduct
described in this Section 5(a), then Section 5(b)(i) below shall be
enforced between the Parties. If this Agreement is terminated by PMWI
as a result of GTE's conduct described in this Section 5(a), then
Section 5(b)(ii) below shall be enforced between the Parties.
b. Termination for Convenience. This Agreement may be abandoned or
terminated at any time after January 1, 2001, by either party, subject
to the following:
i. If this Agreement is terminated for convenience by PMWI, PMWI
agrees, provided that GTE continues to timely make payments to
PMWI under the RSA, to continue utilizing its licensed radio
frequencies on the Facilities until the Termination Date, or
until such time that GTE has gained its own spectrum rights, plus
an additional ninety (90) days, or until such time that GTE no
longer has customers receiving paging or messaging services from
PMWI over the Facilities, whichever occurs first. In such event,
PMWI shall only be required to pay the usage fees set forth in
Section 10 relating to One-Way Facilities and NPCS Facilities for
so long as PMWI has customers utilizing the One-Way Facilities or
NPCS Facilities, as applicable.
ii. If this Agreement is terminated for convenience by GTE, GTE
agrees to keep the Facilities, operating in a normal capacity and
permit PMWI to keep the NPCS Facilities on the GTE sites for a
period of one (1) year after notice provided PMWI continues to
make the required payments under Section 10.a.iii.
c. If this Agreement is not renewed, the Parties agree to keep the
Facilities operating in a normal capacity until the Termination Date.
d. The termination of this Agreement shall not affect any obligation of a
Party which is unfulfilled as of such termination provided that such
obligation by its terms or nature survives such termination.
6. RETENTION OF CUSTOMERS
If this Agreement is terminated, each Party shall:
a. Have the right to retain those customers acquired by that Party.
b. Agree to commercially reasonable cooperation to support the other in
its endeavors to continue providing wireless messaging and data
transmissions to its customers.
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7. GTE RESPONSIBILITIES ONE-WAY
a. For the Project, GTE shall have the final responsibility, subject to
the consent of PMWI which shall not be unreasonably withheld, of
determining when and where the One-Way Facilities shall be
constructed.
b. For the Project, GTE shall, at its sole cost and expense, finance the
construction of One-Way Facilities on which PMWI would utilize PMWI's
one-way paging frequencies to provide wireless services to PMWI's
customers and to GTE as a reseller of PMWI's wireless services.
c. In conjunction with the construction of the One-Way Facilities, GTE
shall be financially responsible for purchasing any transmitters,
antennae, satellite downlink, cable, and third party labor necessary
to install the One-Way Facilities. GTE shall additionally be
responsible for One-Way Facility maintenance and furnishing any
upgrades, whether software or otherwise, reasonably necessary for the
operation of the One-Way Facilities.
d. To the extent that the One-Way Facilities may be located on property
owned by or beneficially belonging to a third party, GTE shall be
solely responsible for negotiating the terms and conditions of any
lease or permit, any expenses associated with lease site preparation
which shall include but not be limited to shelter construction and
provisioning of electrical power and for the remittance of any
operating expenses associated with that lease or permit.
e. For the Project, GTE shall be responsible for payment of all property
taxes, whether real or personal, on all One-Way Facilities that may be
imposed or assessed by any appropriate taxing authority.
8. PMWI RESPONSIBILITIES
a. For the Project, PMWI shall be solely responsible for conducting any
propagation studies at PMWI's expense.
b. For the Project, PMWI at no cost or expense to GTE, shall license the
Facilities with the FCC at locations selected by GTE as described in
Section 7(a) herein, to utilize PMWI's nationwide frequencies to
provide wireless services to PMWI's customers and to GTE as a reseller
of PMWI's wireless services.
c. Although GTE and PMWI shall jointly agree on the selection of
contractors to construct the One-Way Facilities of the Project, PMWI
shall be responsible, at its sole cost and expense, for managing,
coordinating and overseeing the construction of the One-Way
Facilities.
d. At PMWI's sole cost and expense, PMWI shall operate the Facilities,
including, without limitation, the payment for any access connections
including but not limited to business single party lines and for any
long distance service necessary for polling the Facilities to ensure
the Facilities are operational, in a good state of repair, and
operating according to manufacturers specifications.
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e. At PMWI's sole cost and expense, PMWI shall utilize PMWI's national
control center to provide monitoring and ongoing quality assurance for
the NPCS Facilities and shall provide timely notification to GTE of
any NPCS Facility outages.
f. PMWI shall, at its sole cost and expense, link by satellite the
Facilities to PMWI's network infrastructure for network control.
g. For the Project, PMWI shall, at its sole cost and expense, finance the
construction of NPCS Facilities on which PMWI would utilize PMWI's
frequencies to provide NPCS services to PMWI's customers and to GTE as
a reseller of PMWI's wireless services.
h. In conjunction with the construction of any NPCS Facilities, PMWI
shall be financially responsible for purchasing any transmitters,
antennae, satellite downlink, cable, and third party labor necessary
to install the NPCS Facilities. PMWI shall additionally be responsible
for NPCS Facility maintenance and furnishing any upgrades, whether
software or otherwise, reasonably necessary for the operation of the
NPCS Facilities.
9. CONSTRUCTION SCHEDULE
The One-Way Facilities shall be constructed on an island by island basis in
the following order: Oahu, Maui, Kauai, and Hawaii.
10. PAYMENT
a. PMWI shall pay GTE the following amounts for use of the One-Way
Facilities:
i. Twenty-seven thousand dollars ($27,000) commencing on the Turn Up
Date and continuing for 90 days or until completion of One-Way
Facilities construction, whichever occurs first.
ii. Thirty-six thousand dollars ($36,000) per month commencing on
completion of One-Way Facilities construction or 90 days after
Turn Up Date, whichever occurs first, and continuing through
month number one hundred twenty (120) of this Agreement.
iii. Four hundred dollars ($400) per month for each NPCS site (the
"NPCS Fee").
b. The amounts in paragraphs (i) and (ii) above are valid only if the
One-Way Facilities contain between thirty-seven (37) and forty-three
(43) transmitters. If the number of transmitters in the One-Way
Facilities consist of either more or less than these quantities, the
Parties agree to renegotiate the payment amounts.
c. Beginning on the date described below, PMWI shall pay GTE the NPCS Fee
for each NPCS site constructed on property owned or leased by GTE.
PMWI shall be responsible for payment of the NPCS Fee only from and
after the first day of the month that is midway between January 1,
1999 and the date GTE begins billing PMWI for the NPCS Fee. GTE will
begin billing PMWI the NPCS Fee each month
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in arrears when the PMWI NPCS network in Hawaii has been completed, or
on July 1, 1999, whichever occurs first.
d. Payment terms shall be net thirty (30) days from receipt of invoice.
11. OWNERSHIP OF FACILITIES AND FREQUENCIES
a. GTE shall have legal title to and shall be the exclusive owner of all
One-Way Facilities whether the property constituting the One-Way
Facilities shall be characterized as real or personal. PMWI shall have
legal title to or the equitable right to control NPCS Facilities
whether the property constituting the NPCS Facilities shall be
characterized as real or personal.
b. Notwithstanding the foregoing;
i. PMWI and GTE understand and agree that the nationwide frequencies
upon which PMWI furnishes the wireless services provided for
herein are licensed exclusively to PMWI.
ii. Nothing contained herein shall permit GTE to disconnect the
transmitters, antennae or other equipment or remove any of such
assets from any Facility sites during the term of this Agreement
without prior written permission from PMWI, such permission not
to be unreasonably withheld.
12. CONFIDENTIAL INFORMATION
a. To effectuate this Agreement, it may be necessary for either Party to
disclose to the other proprietary or confidential customer, technical
and business information in written, graphic, oral or other tangible
or intangible forms ("Confidential Information"). In order to protect
such Confidential Information from improper disclosure, each party
agrees: (1) that all such Confidential Information shall be and shall
remain the exclusive property of the source; (2) to limit access to
such Confidential Information to authorized employees who have a need
to know the Confidential Information in order to perform the services
set out in this Agreement; (3) to keep such Confidential Information
confidential and to use the same level of care to prevent disclosure
or unauthorized use of the received Confidential Information as it
exercises in protecting its own Confidential Information of a similar
nature; (4) for a period of three years following any disclosure, not
to copy or publish or disclose such Confidential Information to others
or authorize anyone else to copy or publish or disclose such
Confidential Information to others without the prior written approval
of the source; (5) to return promptly any copies of such Confidential
Information to the source at its request; and (6) to use such
Confidential Information only for purposes of fulfilling work or
services performed hereunder and for other purposes only upon such
terms as may be agreed upon between the parties in writing.
b. These obligations shall not apply to any Confidential Information
which was legally in the recipient's possession prior to receipt from
the source, was received in good faith from a third party not subject
to a confidential obligation to the source, now is or later becomes
publicly known through no breach of confidential obligation by the
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recipient, was developed by the recipient without the developing
person(s) having access to any of the Confidential Information
received in confidence from the source, or which is required to be
disclosed pursuant to subpoena or other process issued by a court or
administrative agency having appropriate jurisdiction. If a receiving
party receives a request to disclose any Confidential Information
(whether pursuant to a valid and effective subpoena, an order issued
by a court or other governmental authority of competent jurisdiction
or otherwise) on advice of legal counsel that disclosure is required
under applicable law, such party agrees that, prior to disclosing any
Confidential Information, it shall (i) notify the disclosing party of
the existence and terms of such request or advice, (ii) cooperate with
the disclosing party in taking legally available steps to resist or
narrow any such request or to otherwise eliminate the need for such
disclosure, if requested to do so by the disclosing party, and (iii)
if disclosure is required, use its best efforts to obtain a protective
order or other reliable assurance that confidential treatment will be
afforded to such portion of the Confidential Information as is
required to be disclosed. The disclosing party shall reimburse the
other party for its reasonable expenses, including attorney fees, in
exerting best efforts in complying with b (ii) and b (iii).
c. The obligation of confidentiality and use with respect to Confidential
Information disclosed by one party to the other shall survive any
termination of this Agreement for a period of three years from the
date of the initial disclosure of the Confidential Information.
13. DISPUTE RESOLUTION
a. The Parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or injunction related to the purposes of this
Agreement, or suit to compel compliance with this dispute resolution
process, the Parties agree to use the following alternative dispute
resolution procedure as their sole remedy with respect to any
controversy or claim arising out of or relating to this Agreement or
its breach.
b. At the written request of a Party, each Party will appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this Agreement. The
Parties intend that these negotiations be conducted by nonlawyer,
business representatives. The location, format, frequency, duration
and conclusion of these discussions shall be left to the discretion of
the representatives. Upon agreement, the representatives may utilize
other alternative dispute resolution procedures such as mediation to
assist in the negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated as
confidential information developed for purposes of settlement, exempt
from discovery and production, which shall not be admissible in the
arbitration described below or in any lawsuit without the concurrence
of all Parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be
admitted in evidence in the arbitration or lawsuit.
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c. If the negotiations do not resolve the dispute within sixty (60) days
of the initial written request, the dispute shall be submitted to
binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A Party may
demand such arbitration in accordance with the procedures set out in
those rules. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set out in this Section. Each Party may
submit in writing to a Party, and that Party shall so respond, to a
maximum of any combination of thirty-five (35) (none of which may have
subparts) of the following: interrogatories, demands to produce
documents, and requests for admission. Each Party is also entitled to
take the oral deposition of one individual of another Party.
Additional discovery may be permitted upon mutual agreement of the
parties. The arbitration hearing shall be commenced within sixty (60)
days of the demand for arbitration. The arbitration shall be held in
the city where this Agreement was executed by GTE. The arbitrator
shall control the scheduling so as to process the matter
expeditiously. The Parties may submit written briefs. The arbitrator
shall rule on the dispute by issuing a written opinion within thirty
(30) days after the close of hearings. The times specified in this
Section may be extended upon mutual agreement of the Parties or by the
arbitrator upon a showing of good cause. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
d. Each Party shall bear its own costs of these procedures. A Party
seeking discovery shall reimburse the responding Party the costs of
production of documents (to include search time and reproduction
costs). The Parties shall equally split the fees of the arbitration
and the arbitrator.
14. GENERAL PROVISIONS
a. Further Assurances. From and after the effective date of this
Agreement, the Parties each agree to execute and deliver such further
documents and instruments and to do such further acts and things as
the other may reasonably request in order to effectuate the
transactions contemplated by this Agreement. The Parties shall
cooperate and assist one another in the performance of the provisions
of this Agreement, and shall take such steps as are reasonably
necessary to allow the other Party to discharge the obligations
imposed by this Agreement.
b. Excusable Delays. Neither Party shall be liable for any delay or
failure in its performance of any of the acts required by this
Agreement when such delay or failure arises beyond the reasonable
control of such Party. Such causes may include, without limitation,
acts of God or public enemies, labor disputes, material or component
shortages, supplier failures, embargoes, rationing, acts of local,
state or national governments or public agencies (not solicited,
encouraged or invited by any Party), utility or communication failures
or delays, fires, floods, epidemics, riots and strikes. The time for
performance of any act delayed by such cause shall be postponed for a
period equal to the delay; provided, however, that the Party so
affected shall give prompt notice to the other Party of such delay.
The Party so affected, however, shall use its best efforts to avoid or
remove such causes of nonperformance to complete performance of the
act delayed, whenever such causes are removed.
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c. Assignment. Neither this Agreement nor any of the rights hereunder may
be assigned or otherwise transferred by any Party, by operation of law
or otherwise, without the prior written consent of the other Party,
except that the Parties may, without obtaining such consent, assign
their respective obligations and rights hereunder to their parent, or
any other subsidiary of a parent, eighty percent (80%) or more of the
voting stock of which is owned by the parent. In any case of
assignment, however, the assignee shall assume all obligations of the
assigning Party hereunder and the other Party shall have received
documents satisfactory in form and substance to it evidencing such
assumption. Any such assignment shall not relieve any Party to this
Agreement of its obligations hereunder, and any such assignee may,
upon the terms and conditions, reassign its rights hereunder to such
original Party or to any assignee of such original Party permitted
hereunder.
d. Successors in Interest. All provisions of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by and
against the respective successors and assigns of the Parties or
purchasers of substantially all of the assets of a Party.
e. Independent Contractor Relationship. The persons provided by each
Party shall be solely that Party's employees or agents and shall be
under the sole and exclusive direction and control of that Party. They
shall not be considered employees of the other Party for any purpose.
Each Party shall remain an independent contractor with respect to the
other and shall be responsible for compliance with all laws, rules and
regulations involving, but not limited to, employment of labor, hours
of labor, health and safety, working conditions and payment of wages.
Each Party shall also be responsible for payment of taxes, including
federal, state and municipal taxes, chargeable or assessed with
respect to its employees, such as, Social Security, unemployment,
Workers' Compensation, disability insurance, and federal and state
withholding. Each Party shall indemnify the other for any loss,
damage, liability, claim, demand or penalty that may be sustained by
reason of its failure to comply with this provision.
f. Publicity. Any news release, public announcement, advertising or any
form of publicity pertaining to this Agreement, provision of services
pursuant to it, or association of the Parties with respect to the
subject of this Agreement shall be subject to prior written approval
of both parties.
g. Trademarks and Trade Names. Except as specifically set out in this
Agreement, nothing in this Agreement shall grant, suggest or imply any
authority for one Party to use the name, trademarks, service marks or
trade names of the other for any purpose whatsoever.
h. Records. Each Party shall keep true and accurate records directly
relating to this Agreement in accordance with generally accepted
accounting practices. Such records shall be retained for a period of
three (3) years from the Termination Date.
i. Attorney's Fees. Except as set forth in Section 13, in the event any
Party to this Agreement shall be required to initiate legal
proceedings (i) to interpret or to enforce performance of any term or
condition of this Agreement; (ii) to enjoin any action prohibited
hereunder; or (iii) to gain any other form of relief whatsoever, the
prevailing Party shall be entitled to get such sums from the other
Party, in addition
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to any other damages or compensation received, as well as
reimbursement from the other Party for reasonable attorneys' fees and
court costs incurred on account thereof notwithstanding the nature of
the claim or cause of action asserted by the prevailing Party.
j. Indemnification. Notwithstanding anything to the contrary herein, each
Party shall indemnify and save harmless the other from any loss or
damages (including reasonable attorney's fees) incurred by the other
because of claims, suits, or demands based on personal injury or death
or damage to property, including, without limitation, all Facilities,
or third party claims, suits or demands of any kind, to the extent
such loss or damage is caused by or results from the negligent or
willful acts or omissions of the other or its employees or agents. The
indemnifying Party shall receive the full opportunity and authority to
assume the sole defense of and settlement of such suits. The
indemnified Party agrees to furnish to the indemnifying Party upon
request all information and reasonable assistance available to the
indemnified party for defense against any such suit, claim, or demand.
k. Insurance. GTE and PMWI each agree to maintain during the term hereof
all insurance and/or bonds required by law or this Agreement,
including, but not limited to (1) Workers' Compensation and related
insurance as prescribed by applicable law; (2) employer's liability
insurance with limits of at least $500,000 for each occurrence; and
(3) comprehensive general liability insurance including products
liability, and, if the use of motor vehicles is required,
comprehensive motor vehicle liability insurance, each with limits of
at least $2,000,000 for combined single limit for bodily injury,
including death, and/or property damage. GTE and PMWI each shall cause
the other to be included as an Additional Insured under their
respective policies and GTE's and PMWI's appropriate coverage under
such policies shall be primary. GTE and PMWI each shall furnish
certificates or evidence of the foregoing insurance indicating the
amount and nature of such coverage, the expiration date of each
policy, and stating that no material change or cancellation of any
such policy shall be effective unless thirty (30) days advance
written notice is given to the Party named as an Additional Insured.
Notwithstanding the above, GTE and PMWI shall each have the option,
where permitted by law, to self-insure any or all of the foregoing
risks.
l. Assuring Performance of Responsibilities. Notwithstanding anything
stated or implied to the contrary elsewhere in this Agreement, GTE
may, as permissible under FCC rules and regulations, at its option and
without prejudice to other rights, take over and complete all or part
of PMWI's responsibilities with respect to the One-Way Facilities if
PMWI has defaulted, which default is not substantially cured within
thirty (30) days of receiving written notice of the default, or PMWI
has not furnished GTE with adequate assurance that PMWI is prepared to
perform its obligations in a timely fashion and/or as required by this
Agreement. PMWI shall be liable to GTE for any costs incurred by GTE
in discharging PMWI's responsibilities. If, in GTE's reasonable
opinion, a hazardous condition exists at any Facility, GTE may without
notice to PMWI take such immediate action as is necessary to protect
persons, the Facilities or the property of third parties from damage
or interference caused by the hazard.
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m. Rights and Remedies. The rights and remedies provided each of the
Parties herein shall be cumulative and in addition to any other rights
and remedies provided by law or otherwise. Any failure in the exercise
by any Party of its rights to enforce any provision of this Agreement
for any default or violation by another Party shall not prejudice such
Party's right of enforcement for any further or other default or
violation.
n. Limitation of Liability. It is expressly understood that neither Party
makes any warranty to the other with respect to the performance or
fitness for any purpose of the products or services contemplated by
this Agreement. Each Party's liability to the other for any loss,
cost, claim, injury, liability or expense, including reasonable
attorney's fees, relating to or arising out of any negligent act or
omission in its performance of obligations arising out of this
Agreement, shall be limited to the amount of direct damage actually
incurred. Absent gross negligence or knowing and willful misconduct
which causes a loss, neither Party shall be liable to the other for
any indirect, special or consequential damage of any kind whatsoever.
For purposes of this clause, payments and related expenses for third
party claims, suits or demands for which indemnity is owed shall be
considered direct damages.
o. Limitation of Actions. No action, regardless of form, arising out of
the subject matter of this Agreement may be brought by either Party
more than two (2) years after the cause of action has accrued. The
Parties waive the right to invoke any different limitation on the
bringing of actions provided under state law.
p. Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be
effective when delivered personally, or if by telex or TWX, when
confirmed (which confirmation may be by reply telex or signal
indicating that the message has been clearly received) or if mailed,
five (5) days after mailing, postage prepaid and addressed to the
Parties at their respective addresses set forth below, unless by such
notice a different person, address or number shall have been
designated for giving notice hereunder:
If to GTE: GTE Communication Systems Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager-Contract Management
Mail Code: HQW03N56
If to PMWI: PageMart Wireless, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President Carrier Services Division
q. Waiver. The waiver by a Party of the performance of any covenant,
condition, obligation, representation, warranty or promise in this
Agreement shall not invalidate this Agreement or be deemed a waiver by
such Party of any other covenant, condition, obligation,
representation, warranty or promise. The waiver of a Party of the time
for performing any act or condition hereunder does not constitute a
waiver of the act or condition itself.
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r. Construction. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any third party. No third party,
including any creditor of either Party, shall have any rights against
the Parties or any of their subsidiaries, successors or assigns by
reason of or under this Agreement.
s. Severability. In the event that any one or more provision(s) contained
in this Agreement should for any reason be held to be unenforceable in
any respect, such unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as
if such unenforceable provision(s) had not been contained herein.
t. Survival of Obligations. The respective obligations of the Parties
under this Agreement which by their nature would continue beyond the
termination, cancellation or expiration hereof, shall survive
termination, cancellation or expiration hereof.
u. Headings. The captions of Articles and Sections of this Agreement are
inserted only as a matter of convenience and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any
provision hereof.
v. Compliance with Laws and Regulations. The Parties shall comply with
all foreign, federal, state and local laws and regulations applicable
to their performance as described in this Agreement.
w. Applicable Law. This Agreement is made and executed in the state of
Texas and the laws and decisions of Texas, without reference to
provisions covering conflicts of laws, shall control the construction,
interpretation, validity and enforcement of this Agreement.
x. Amendments, Modifications and Supplements. Amendments, modifications
and supplements to this Agreement are allowed and will be binding on
the Parties after the effective date, provided such amendments,
modifications and supplements (1) are in writing, signed by an
authorized representative of both parties, and (2) by reference
incorporate this Agreement and identify the specific Sections or
clauses contained herein which are amended, modified or supplemented
or indicate that the material is new. The term, "this Agreement" shall
be deemed to include any future amendments, modifications and
supplements.
y. Entire Agreement. This Agreement, including all Exhibits attached
hereto, supersede all prior and contemporaneous agreements not
required or contemplated hereby. This Agreement may not be modified
except by a writing signed by authorized representatives of the
Parties.
z. Counterparts. This Agreement may be executed in one or more
counterparts, simultaneously or separately, and each counterpart shall
be deemed to be an original for all purposes. If the counterparts are
separately executed, this Agreement shall be deemed executed when each
Party has signed a copy. Thereafter, the Parties shall exchange signed
copies of this Agreement for their respective files.
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15. MAINTENANCE AND REPAIRS AT GTE OWNED SITES
All maintenance and repairs are covered in a separate Agreement between the
parties.
13
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16. SIGNATURES
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date or
dates indicated below to be effective when executed by both.
PAGEMART WIRELESS, INC. GTE COMMUNICATION SYSTEMS
CORPORATION
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------ --------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ------------------------------
Title: Vice President, Carrier Services Title: Senior Contract Manager
---------------------------------- ------------------------------
Date: April 5, 1999 Date: April 22, 1999
---------------------------------- ------------------------------
[STAMP]
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EXHIBIT A
GTE AFFILIATED ENTITIES
GENERAL ADMINISTRATION
GTE Corporation
GTE Finance Corporation
GTE Investment Management Corporation
GTE Realty Corporation
GTE Realty Corporation of Connecticut
GTER Incorporated
GTE-TCCA, Inc.
GTE REinsurance Company Limited (Vermont)
GTE Life Insurance Company Limited (Bermuda)
GTE REinsurance Management Limited (Bermuda)
GTE Service Corporation
GTE Shareholder Services Incorporated
GTE VisNet Incorporated
GOVERNMENT SYSTEMS
Contel Federal Systems, Inc.
GTE Government Systems Corporation
GTE CyberTrust Solutions Incorporated
GTE Federal Services Corporation
GTE Government Systems Overseas Corporation
GTE Overseas Systems and Services Corporation
Telecom Systems Incorporated
Contel Page International Holdings, Inc.
Contel Page International, Inc.
Page Europa, S.p.A.
MTX Italia
GTE Telecom Incorporated
GTE Telecom International Incorporated
GTE Telecom International Systems Corporation
GTE Telecom Saudi Arabia LTD
INFORMATION SERVICES
GTE Information Services Incorporated
General Telephone Directory Company C. por A.
GTE Communications Corporation
GTE Data Services GmbH
GTE Directories (Belgium) Limited
GTE Directories (B) SDN.BHD (Brunei)
GTE Directories Corporation
Associated Directory Services-WC, Company
GTE Directories Distribution Corporation
GTE Directories Sales Corporation
GTEX Corporation
GTE Directories (HK) Limited (Hong Kong)
GTE Directorios - Republica Dominicana, C. por A.
GTE Government Information Services Incorporated
GTE Information Services (UK) Limited (England)
U S West Polska Sp. Z o.o.
GTE New Media Services Incorporated
GTE Telecommunications Services Incorporated
GTE Yellow Pages Publishing Hungary Kft
INTERNETWORKING OPERATIONS
GTE Internetworking Incorporated
GTE Intelligent Network Services Incorporated
BBN Corporation
BBN International Corporation
BBN International Sales Corporation
BBN Securities Corporation
BBN U.K. Limited
Bolt ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Corporation
Realtech Corporation
TELEPHONE OPERATING COMPANIES
GTE Alaska Incorporated
GTE Arkansas Incorporated
GTE California Incorporated
Contel Advanced Systems, Inc.
GTE Florida Incorporated
GTE Florida Business Connections Corporation
GTE Funding Incorporated
GTE Hawaiian Telephone Company Incorporated
GTE Hawaiian Tel Insurance Company Incorporated
GTE Hawaiian Tel International Incorporated
The Micronesian Telecommunications Corporation
GTE Pacifica Incorporated
GTE Midwest Incorporated
GTE North Incorporated
GTE Northwest Incorporated
GTE West Coast Incorporated
GTE South Incorporated
GTE Southwest Incorporated
Contel of Minnesota, Inc. d/b/a GTE Minnesota
Contel of the South, Inc. d/b/a GTE Systems of the South
Contel Service Corporation
GTE Anglo Holding Company Incorporated
La Compagnie de Telephone Anglo-Canadienne/Anglo-
Canadian Telephone Company
BC TELECOM Inc.
Aerotech Specialities Ltd.
BC TEL
Canadian Telephones and Supplies Ltd.
ISM Information Systems Management
(B.C.) Corporation
BC TEL Mobility Cellular Inc.
BC TEL Mobile Ltd.
BC TEL Properties Inc.
BC TEL Risk Management Inc.
BC TEL Systems Support Inc.
Microtel International Inc.
SRI Strategic Resources Inc.
Telecom Leasing Canada (TLC) Limited
Quebec-Telephone
QuebecTel Communications Inc.
QuebecTel Mobilite Inc.
Quebec Tel International Inc.
GTE Customer Networks, Inc.
GTE Data Services Incorporated
GTE Data Services International Incorporated
A-1
18
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Holdings (Canada) Limited
Compania Dominicana de Telefonos, C. por A.
(Codetel)
Quality Telecommunications, C. por A.
GTE International Telephone Incorporated
Informatica y Telecommunicaciones, C. por A.
(Dominican Republic)
GTE International Telecommunications Incorporated
GTE do Brasil Limitada
GTE Mexico, L.L.C.
GTE PCS International Incorporated
GTE Venezuela Incorporated
VenWorld Telecom, C.A. (Venezuela)
Compania Anonima Nacional Telefonos de Venezuela (CANTV)
Prontocel S.A. (Brazil)
GTE Investments Incorporated
GTE London Limited (England)
GTE Main Street Incorporated
GTE Media Ventures Incorporated
ContelVision, Inc.
GTE Enterprise Initiatives Incorporated
GTE Vantage Incorporated
WIRELESS PRODUCTS AND SERVICES
GTE Airfone Incorporated
GTE Airfone of Canada Incorporated
GTE Railfone Incorporated
Mexfone, S.A. de C.V.
GTE Wireless Incorporated
GTE Mobile Communications Service Corporation
GTE Mobile Communications International
Incorporated
GTE Mobilnet of Asheville Incorporated
GTE Mobilnet of Danville Incorporated
GTE Mobilnet of Eastern North Carolina Incorporated
GTE Mobilnet of Jacksonville Incorporated
GTE Mobilnet of Jacksonville II Incorporated
GTE Mobilnet of Wilmington Incorporated
GTE Mobilnet of Wilmington II Incorporated
GTE Mobilnet of Fayetteville Incorporated
GTE Mobilnet of Florence, South Carolina Incorporated
GTE Mobilnet of North Carolina Incorporated
GTE Mobilnet of Raleigh Incorporated
GTE Mobilnet of South Carolina Incorporated
GTE Mobilnet of the Southeast Incorporated
GTE Cellular Communications Corporation
GTE Mobilnet of Cleveland Incorporated
GTE Mobilnet Sales Corp.
GTE Mobilnet Service Corp.
GTE Mobilnet of Austin Incorporated
GTE Wireless of Houston Incorporated
GTE Wireless of the Midwest Incorporated
GTE Wireless of the Pacific Incorporated
GTE Mobilnet of Clatsop Incorporated
Contel Cellular International, Inc.
GTE Mobilnet Holding Incorporated
GTE Mobilnet of Alabama Incorporated
GTE Mobilnet of Florence, Alabama Incorporated
GTE Mobilnet of Chattanooga Incorporated
GTE Mobilnet of Chattanooga II Incorporated
GTE Mobilnet of Clarksville Incorporated
GTE Mobilnet of Gadsden Incorporated
GTE Mobilnet of Knoxville Incorporated
GTE Mobilnet of Memphis Incorporated
GTE Mobilnet of Memphis II Incorporated
GTE Mobilnet of Nashville Incorporated
GTE Mobilnet of Tennessee Incorporated
GTE Mobilnet of Central California Incorporated
Pinnacles Cellular Inc.
GTE Mobilnet of Huntsville Incorporated
GTE Mobilnet of Illinois Funding Incorporated
GTE Mobilnet of San Diego Incorporated
GTE Mobilnet of the Southwest Incorporated
GTE Wireless of the South Incorporated
OTHER OPERATIONS
GTE China Incorporated
GTE International Telecommunications Services LLC
GITS Branch LLC
GTE Holdings Mexico, S. de ▇.▇. de C.V.
GTE Data Services-Mexico, S.A. de C.V.
GTEDS Services-Mexico, S.A. de C.V.
GTE Supply-Mexico, S.A. de C.V.
GTE Communications Services Incorporated
GTE Leasing Corporation
GTE Leasing Acceptance Corporation
Kalama Grain Terminal, Inc.
GTE Products of Connecticut Corporation
GTE Communication Systems Corporation (GTE Supply)
GTE International Incorporated
GTE Far East (Services) Limited
GTE Overseas Corporation
GTE Laboratories Incorporated
GTE Operations Support Incorporated
GTE Operations do Brasil Comercial Ltda.
West Indies Telephone Company
A-2
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EXHIBIT A
GTE AFFILIATED ENTITIES
Televac, Inc.
GTE Transfer Corporation
A-3
