EXHIBIT 3
MANAGEMENT AND SPECTRUM LEASE AGREEMENT
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This MANAGEMENT and Spectrum LEASE AGREEMENT ("Agreement") made
and entered into this 18th day of November, 2003 (the "Effective Date"), by and
among PageMart II Holdings LLC and PageMart PCS Holdings LLC ("Licensees"), each
a Delaware limited liability company, WebLink Wireless I, L.P., a Texas limited
partnership ("WebLink Wireless"), WebLink Wireless, Inc. ("WebLink, Inc." and,
together with WebLink Wireless and Licensees, "WebLink"), and Metrocall, Inc.
("Company") and Metrocall Holdings, Inc., a Delaware corporation, ("Parent"),
(Company and Parent are collectively referred to as "Metrocall"), (each of
Parent, Company, WebLink Wireless, WebLink, Inc. and Licensees individually a
"Party" and collectively, the "Parties" to this Agreement):
WHEREAS, Licensees are the holders of certain Federal
Communications Commission ("FCC") licenses and authorizations to provide
commercial wireless messaging services at various locations throughout the
United States (each an "FCC License" and collectively, "FCC Licenses," a list of
which is attached hereto as Schedule One); and
WHEREAS, Parent, Company, WebLink Wireless and WebLink, Inc. have
entered into that certain Asset Purchase Agreement dated as of this 18th day of
November, 2003 (the "Asset Purchase Agreement"), pursuant to which Metrocall (i)
simultaneously herewith will purchase certain assets of Licensees and WebLink
Wireless, including all subscriber accounts, the telecommunications network
facilities, including without limitation, transmitters, switches, terminals,
rights to use telephone numbers (including Direct Inward Dialing numbers),
rights to use circuits and all telephone interconnection facilities, and
transmitting antennae necessary for operation under the FCC Licenses, other than
certain excluded assets (the "Network"), and (ii) has agreed to acquire all
membership interests in the Licensees, or the FCC Licenses, subject to prior FCC
approval and other conditions; and
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WHEREAS, Metrocall wishes to lease the spectrum airtime rights
granted under the FCC Licenses, to operate the Network subject to Licensees'
ultimate authority and control of the FCC Licenses, pending the acquisition of
the Licensees or the FCC Licenses by Metrocall, subject to FCC approval and
other conditions;
WHEREAS, Licensees desire to lease such spectrum airtime rights
to Metrocall, subject to Licensees' ultimate authority and control;
WHEREAS, Metrocall has requested that WebLink continue to manage
certain assets related to the Network (the "Nonassignable Contracts" described
herein in Schedule Two) for the benefit of Metrocall in the event that these
assets cannot be promptly assigned to Metrocall for a period of time following
the Initial Closing of the Asset Purchase Agreement;
WHEREAS, WebLink has agreed to continue to manage the
Nonassignable Contracts in the manner set forth in Section 4 hereof, subject to
the agreement of Metrocall to compensate WebLink in the manner set forth in
Section 5 hereof.
NOW THEREFORE, in consideration of the foregoing recitals and the
mutual covenants hereafter set forth, and of other good and valuable
consideration, the Parties agree as follows:
1. Interpretation. Words of any gender used in this Agreement
will be held and construed to include any other gender, and words in the
singular will be held and construed to include the plural and vice versa, unless
the context requires otherwise. This Agreement shall be interpreted fairly in
accordance with its terms, and shall not be interpreted more strictly against
any Party by reason of any rule of construction that agreements are to be
construed against the drafter. In the event of any conflicts between the terms
of this Agreement and the Asset Purchase Agreement, the terms of the Asset
Purchase Agreement shall prevail. Any term capitalized in this Agreement but not
defined herein shall have the meaning attributed to it in the Asset Purchase
Agreement.
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2. Independent Contractor.
(a) Except as otherwise provided herein, Metrocall shall be the
exclusive independent contractor authorized to lease or purchase airtime from
Licensees, for the purposes of and subject to all terms, conditions, and
limitations set forth herein.
(b) Metrocall shall not represent itself as the licensee of the
FCC Licenses, directly or indirectly, orally, or in any written manner
whatsoever.
(c) Nothing herein shall be construed to create any partnership,
joint venture or other combination or affiliation between Licensees and
Metrocall.
3. Obligations of Metrocall. Metrocall covenants and agrees that
it will do the following for the Term of this Agreement:
(a) Following Metrocall's purchase of the Network assets that are
not subject to prior FCC regulatory approval, Metrocall shall operate and
maintain the Network in accordance with the FCC Licenses.
(b) Except for any excluded transmitter site and tower leases
referenced in Schedule Two, Metrocall shall obtain and keep in force such
transmitter site and tower leases as are reasonably necessary for the continued
operation of the Network and pay all amounts due under those site leases or
other agreements.
(c) Metrocall shall maintain and keep the Network in good working
order.
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(d) Metrocall shall, subject to Licensees' FCC regulatory rights
and obligations, have responsibility for the operation of the Network. Metrocall
shall be responsible for managing, coordinating and supervising all technical
functions of the Network; provided that Metrocall shall not infringe or impede
Licensees' unfettered access to the equipment and facilities over which their
respective frequencies operate.
(e) Metrocall's operation of the Network shall comply in all
material respects with industry management standards and sound engineering
practices expected of a reasonably prudent wireless telecommunications provider.
The management and operation of the Network shall meet all applicable federal,
state and local laws, rules and regulations and all FCC rules and regulations
regarding construction and operation of telecommunications facilities, except
where the failure to so comply would not have any effect on the FCC Licenses.
(f) Subject to Licensees' ultimate control and authority over the
FCC Licenses, Metrocall shall have day-to-day responsibility for employment,
supervision, and dismissal of its own personnel.
(g) Metrocall shall not change, modify, alter, or amend any FCC
License in any manner whatsoever without the applicable Licensee's prior written
consent. Notwithstanding the foregoing, Metrocall reserves the right to modify
or replace the hardware or software comprising the Network, and to make any such
modification to the Network to the extent necessary to maintain the Network in
good order, as long as such modifications will not adversely affect the validity
and status of the FCC Licenses. If either Licensee agrees to modify one or more
of its FCC Licenses, that Licensee shall be responsible for preparing and filing
any required application for modification with the FCC; provided that Metrocall
will provide such assistance as Licensee may request and will reimburse Licensee
for its costs in connection with such modification application.
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(h) Metrocall shall immediately notify Licensees of any pending
or threatened action by the FCC, or any other governmental organization or third
party to suspend, revoke, terminate, or challenge Licensees' FCC Licenses, or
otherwise investigate the operation of the Network.
(i) Metrocall shall not incur any expenses on Licensees' behalf
without Licensees' prior knowledge and written consent.
(j) Metrocall's foregoing covenants shall be subject to
Licensees' management responsibilities set forth herein with respect to the
Nonassignable Contracts, until such time as the Nonassignable Contracts are
assigned to Metrocall. Notwithstanding the foregoing, Metrocall has assumed all
Liabilities associated with the Nonassignable Contracts as of the date hereof,
in accordance with the terms of the Asset Purchase Agreement (the "Nonassignable
Contracts Liabilities").
4. Obligations of WebLink. WebLink covenants and agrees that they
will do the following for the Term of this Agreement or until such time as these
obligations may otherwise be terminated pursuant to the provisions of this
Agreement:
(a) Licensees shall lease all airtime on the frequencies
authorized by the FCC Licenses to Metrocall, in accordance with the terms
hereof, for the Term of this Agreement.
(b) WebLink shall continue to own, lease, operate and manage,
from WebLink Wireless's headquarters building, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇,
for the benefit of the Network and for the benefit of Metrocall, the Excluded
Lease until March 31, 2004.
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(c) Notwithstanding the assumption of Nonassignable Contracts
Liabilities pursuant to the Asset Purchase Agreement, WebLink Wireless shall,
following the Initial Closing, continue to operate and maintain those
Nonassignable Contracts described in Schedule Two hereto, for the benefit of the
Network and Metrocall, until such time as those Nonassignable Contracts can be
assigned to Metrocall or until such time as Metrocall notifies WebLink that it
has made alternative arrangements for the Nonassignable Contracts; provided,
however, that such alternative arrangements shall be without prejudice to the
assumption of the Nonassignable Contracts Liabilities by Metrocall. WebLink
Wireless shall cooperate with Metrocall to obtain the assignment of the
Nonassignable Contracts to Metrocall as provided in the Asset Purchase
Agreement. Metrocall shall be deemed to have been assigned each of the
Nonassignable Contracts at the earlier of (i) the receipt of a third party
consent to the assignment of such Nonassignable Contracts, or (ii) December 31,
2004.
(d) Throughout the Term hereof, Licensees shall continue to be
responsible for maintaining the FCC Licenses in conformance with the
Communications Act and all applicable FCC rules and regulations. Subject to
Licensees' right to make policy determinations with respect to their licensed
spectrum, Licensees shall use their best efforts, at the Company's expense,
pursuant to Section 5 hereof, to maintain all material FCC Licenses in full
force and effect for the Term hereof, including filing applications for renewals
of FCC Licenses as necessary during the Term of this Agreement.
(e) WebLink shall retain ultimate supervisory authority and
control over the Subsequent Transferred Employees for the purpose of maintaining
and managing the Nonassignable Contracts, subject to Metrocall's reasonable
supervision and direction.
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(f) WebLink shall manage the Nonassignable Contracts with at
least the same care and regard as WebLink managed its business prior to the date
hereof, in compliance with all applicable laws and contractual obligations of
WebLink, and in accordance with the exercise of good faith business judgment,
and shall provide Metrocall and customers of Metrocall with the same level of
priority, service and attention with at least the same priority, service and
attention as the Licensees provided their customers prior to the date hereof.
The services provided by Licensees hereunder shall be subject to the reasonable
supervision and direction of Metrocall. Metrocall shall provide the information,
analysis and data reasonably required by WebLink to pay any amounts due under
the Nonassignable Contracts, and such information, analysis and data shall be
provided to WebLink in writing and sufficiently in advance to enable WebLink to
timely pay all amounts due the Nonassignable Contracts. Licensees shall consult
with Metrocall regarding all material operating procedures and decisions
affecting the Nonassignable Contracts. Any material change in the manner in
which the Nonassignable Contracts are operated shall be subject to Metrocall's
prior approval.
(g) In the event that WebLink Wireless or any Licensee shall file
a chapter 11 plan of reorganization or chapter 7 liquidation with a federal
bankruptcy court during the Term of this Agreement, WebLink Wireless or such
Licensee shall, to the extent permitted by Law, within one Business Day of that
bankruptcy filing file a motion with the bankruptcy court, in form and substance
satisfactory to Metrocall, to request such filing Party's (or the debtor in
possession's) assumption of this Agreement.
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5. Compensation. In consideration of the mutual covenants and
obligations hereunder, including Metrocall's spectrum lease rights for the Term
of this Agreement and the services to be rendered by WebLink Wireless hereunder,
WebLink shall be compensated as follows:
(a) Parent shall issue to WebLink Wireless warrants, in the form
attached hereto as Exhibit A, (the "Warrants") to purchase an aggregate of
100,000 shares of Parent common stock, par value $0.01 per share (the "Warrant
Shares") at an exercise price of $40 per share, exercisable at any time and from
time to time, in whole or in part, with respect to vested rights pursuant to the
Warrants to purchase Warrant Shares. The right to purchase the Warrant Shares
pursuant to the Warrants shall vest in equal yearly increments of 25,000 Warrant
Shares, commencing on the first anniversary of the date hereof; provided,
however, that the right to purchase all remaining Warrant Shares pursuant to the
Warrants shall vest on the earlier to occur of (i) the License-Related Asset
Purchase Closing, and (ii) the termination of this Agreement for any reason,
except as the result of a termination pursuant to Section 9(b) hereof resulting
solely from the material breach of this Agreement by WebLink Wireless. The right
to purchase Warrant Shares pursuant to the Warrants shall be exercisable by
WebLink Wireless for a period of three years from the date such right vests.
(b) Metrocall shall pay to WebLink Wireless the estimated Fee for
each month during the term of this Agreement. A description of the estimated Fee
for December 2003 is attached hereto as Exhibit B. The estimated Fee shall be
paid 10 Business Days prior to the last Business Day of the month preceding such
month by wire transfer of immediately available funds into an account designated
by WebLink Wireless. For each monthly payment beginning with the December
estimated Fee, no less than 15 days prior to the due date, WebLink Wireless will
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provide in reasonable detail a written estimate of the amount of the Fee due.
The amount of the estimated Fee shall be adjusted by any differences in the
actual Fee due compared to the estimated Fee paid for the second month preceding
the month for which the next Fee payment is due (for example, the Fee estimate
for February 2004 will contain the adjustment, if any, to the estimated Fee paid
for December 2003). After termination of this Agreement WebLink Wireless will
provide in writing to Metrocall the differences between the actual Fee due and
the estimated Fee paid for any months for which no adjustment has yet been made.
A Party that owes the other Party money as a result of the adjustment shall
promptly pay the amount due.
(c) The term "Fee" shall mean, for a given month, the Expenses
(as defined below) for such month plus 1% of such Expenses.
(d) The term "Expenses" shall mean, for a given month, the actual
expenses paid by WebLink Wireless or a Licensee for the following:
(i) rent and all other expenses related to WebLink Wireless's
headquarters building existing on the Effective Date that
have not been assigned to Metrocall and to the extent that
they relate to lease payments due from and after the Initial
Closing Date and prior to April 1, 2004;
(ii) all Taxes other than Taxes on net income, to the extent they
relate to periods from and after the Initial Closing Date,
and only to the extent related to the Business;
(iii) costs of compensation, benefits and expense reimbursement
provided to employees listed in Schedule Three (the
"Subsequent Transferred Employees") in accordance with
contracts and practices in effect prior to the Effective
Date to the extent that they relate to periods from and
after the Initial Closing Date and prior to the date that
Parent or Company becomes obligated for such obligations
under the Asset Purchase Agreement;
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(iv) expenses, including lease expenses, relating to each
Nonassignable Contract until the earlier of (i) the
assignment of such Nonassignable Contract to Metrocall, (ii)
notification to WebLink by Metrocall that it has made
alternative arrangements for such Nonassignable Contract or
(iii) December 31, 2004; provided, however, that in each
such case, Metrocall shall continue to be responsible for
the Nonassignable Contracts Liabilities;
(v) miscellaneous expenses incurred in the ordinary course of
business, to the extent they relate to periods from and
after the Initial Closing Date, and only to the extent
related to the Business or complying with the terms of this
Agreement; and
(vi) costs of maintaining all material FCC Licenses in full force
and effect for the Term hereof.
(e) Metrocall shall be entitled to retain all revenues from the
operation of the Network to pay any and all expenses of operating the Network.
After paying all expenses related to the Network, Metrocall shall be entitled to
retain any profits realized from the operation of the Network.
6. Health and Welfare Benefits Reimbursement. During the period
of coverage of the Subsequent Transferred Employees by health and welfare plans
of an Affiliate of the Sellers, which period shall end on the earlier of (i) the
date such Subsequent Transferred Employees become employees of Metrocall, or
(ii) the date such Subsequent Transferred Employees terminate their employment
with WebLink, Metrocall shall reimburse WebLink for the cost of such health and
welfare coverage of such Subsequent Transferred Employees, which reimbursement
shall not exceed $675.00 per month per each Subsequent Transferred Employee, and
shall be payable by Metrocall on a monthly basis.
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7. Public Regulation.
(a) This Agreement is subject to all of the terms and conditions
of the FCC Licenses. Nothing in this Agreement shall be construed so as to
impair or diminish Licensees' control of their respective FCC Licenses or
operations thereunder.
(b) This Agreement shall be subject to the approval of the FCC
and any other applicable regulatory authorities, if such approvals shall be
required.
(c) This Agreement shall be terminated, amended, revised or
supplemented immediately, if required by the FCC or any other regulatory agency.
The imposition by the FCC of any amendments, revisions, deletions or supplements
to this Agreement shall thereby relieve each Party of any obligations or
liabilities to the other under the provisions of this Agreement, as initially
written, which were ordered amended, revised, deleted or supplemented; provided,
however, that either Party may terminate this Agreement upon notice to the other
if the performance of any material terms of this Agreement have been prohibited
by any such action of the FCC or other regulatory body, and if the deletion or
modification of such material terms would preclude the Parties from performing
this Agreement. Without limiting the generality of the foregoing, in the event
that this Agreement requires amendment to conform to the spectrum leasing rules
adopted by the FCC in WT Docket No. 00-230 after the same become effective, the
Parties will use their best efforts, at no additional cost to WebLink other than
reasonable legal fees, to so amend this Agreement.
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8. Representations and Warranties. Each Party represents,
warrants and covenants as follow:
(a) It is duly organized, validly existing and in good standing
under the laws of its state of organization and is authorized to do business in
each state where it is doing business. It has full power and authority to carry
out all of the terms and conditions of this Agreement and all other agreements,
certificates or instruments executed and delivered in connection herewith.
(b) It has taken all corporate or partnership action necessary to
authorize the execution and delivery of this Agreement and, upon execution and
delivery, this Agreement will constitute a valid and binding agreement,
enforceable against each Party in accordance with its terms.
(c) The execution and delivery of this Agreement does not, nor
will the performance by the Parties of their obligations hereunder, (i) conflict
with or result in a material breach of any of the material terms, conditions or
provisions of their respective Articles or Certificates of Incorporation or
Bylaws, or (ii) violate in any material respect any existing term or provision
of any material franchise, license, permit, order, writ, judgment, injunction,
decree, statute, law, rule or regulation of any court or governmental authority
applicable to the Parties. Other than the FCC Approval, no consent of any
federal, state or local authority is required in connection with the execution
and delivery of this Agreement or any other agreements, certificates or
instruments executed and delivered herewith or with the performance of the
transactions contemplated in this Agreement or any other agreements,
certificates or instruments executed and delivered herewith or with the
performance of the transaction contemplated by this Agreement.
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(d) Other than regulatory procedures dealing with the
telecommunications industry in general there is no action, suit, proceeding or
investigation pending or to its best knowledge, threatened against it before any
Court, administrative agency or other governmental body that might have a
material adverse impact on the performance of this Agreement, and it does not
know of any valid basis for the commencement of any such action, proceeding or
investigation. There is no action, proceeding or investigation pending or, to
its best knowledge, threatened against it which questions or challenges the
validity of or otherwise seeks to prevent the performance of this Agreement.
(e) Each Party agrees to comply, as applicable, with pertinent
FCC Rules, and any other governmental rules and procedures in existence relating
to the provision of telecommunications services under the FCC Licenses.
(f) Each Party will discharge its respective obligations under
this Agreement in good faith and without any attempt to circumvent or avoid the
restrictive conditions and intent of this Agreement. Each Party will use its
best efforts to perform their services and their obligations under this
Agreement in a manner designed to keep available the Network services and to
preserve the goodwill of the Business, its agents, third party administrators,
regulators, customers and other persons with whom any Party has a material
business relationship, provided that the cost of complying with the foregoing
shall be at the Company's expense pursuant to Section 5 hereof.
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9. Effective Date/Term.
(a) This Agreement shall become effective as of the Effective
Date, and shall remain in effect until terminated as provided for herein.
(b) This Agreement shall automatically terminate upon any of the
following events:
(i) Metrocall fails to pay any amount it is obligated to pay to
WebLink hereunder when the same is due and payable,
including any amounts payable pursuant to Section 5 hereof,
if Metrocall has not cured such breach within five (5)
Business Days of written notice of such breach;
(ii) upon notice by Metrocall, in the event that one or more FCC
Licenses that Metrocall reasonably deems necessary for its
continued operation of the Network are revoked or not
renewed, or if any such FCC Licenses is suspended or
conditioned in any manner inconsistent with the intent of
this Agreement;
(iii) in the event of a Party's material breach of this Agreement
other than a payment default, if that Party has not cured
such breach within thirty (30) days after receiving written
notice from the other Party specifying the nature of the
breach; provided, that in the event of a good faith dispute
over the existence or extent of any breach, such thirty day
period shall not apply until the resolution of the dispute
pursuant to Section 20 hereof;
(iv) upon the mutual consent of the Parties hereto;
(v) upon the cessation of business of any Party to this
Agreement; or
(vi) upon the later of (1) the assignment to Metrocall of all of
the Nonassignable Contracts, or (2) consummation of the
License-Related Asset Purchase Closing.
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(c) The termination of this Agreement for any reason will not
relieve the Parties of any obligations incurred through the date of termination.
(d) Notwithstanding any of the foregoing provisions of this
Section 9, in the event that the FCC should deny the FCC Applications,
Metrocall's spectrum lease rights under this Agreement shall remain in effect
for ten (10) years from the date of such denial.
10. Survival. The representations and warranties of the parties
contained in this Agreement shall survive until the termination of this
Agreement pursuant to Section 9 hereof.
11. Indemnification by WebLink Wireless. WebLink Wireless will
indemnify and hold harmless Metrocall and its affiliates and their agents,
employees, officers, directors, successors and assigns from and against all
liabilities and expenses, including reasonable attorneys fees and expenses
arising out of, or in connection with, any: (i) material breach of this
Agreement by WebLink, and (ii) violation of law or regulation applicable to
WebLink, excluding any such liabilities and expenses arising out of, in
connection with or relating to (A) any gross negligence or willful misconduct of
Metrocall and (B) WebLink's execution of this Agreement or WebLink's performance
of its obligations hereunder.
12. Indemnification by Metrocall. Metrocall shall indemnify and
hold WebLink, their affiliates and their agents, employees, officers, directors,
successors and assigns from and against all liabilities and expenses, including
reasonable attorneys fees and expenses, arising out of, or in connection with,
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any (i) claim by customers of services over the Network involving the use,
condition or operation of any facilities or services provided to them by
Metrocall, (ii) material breach of this Agreement by Metrocall, or (iii)
violation of law or regulation applicable to Metrocall, excluding any such
liabilities and expenses arising out of, in connection with or relating to any
gross negligence or willful misconduct of Licensee(s). These indemnities shall
survive the termination of this Agreement.
13. Limitation of Liability. Subject only to the warranties and
indemnification obligations expressly set forth herein, NO PARTY SHALL BE LIABLE
TO ANY OTHER FOR ANY DAMAGES ARISING OUT OF (i) LATENT OR PATENT SUBSCRIBER
DEVICE OR SERVICE DEFECTS, OR (ii) LOSS OF USE OF ANY OF THE SUBSCRIBER DEVICES
OR SERVICES, OR (iii) THE CONTENT OF ANY PAGE, MESSAGE OR OTHER DATA, OR (iv)
ANY FAILURE TO ACCURATELY TRANSMIT A PAGE, MESSAGE OR OTHER DATA, OR ANY
RECIPIENT'S FAILURE TO RECEIVE A PAGE, MESSAGE OR OTHER DATA, UNLESS SUCH
FAILURE IS DUE TO SUCH PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO PARTY
SHALL BE LIABLE FOR LOST PROFITS OR EXEMPLARY, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT. IF ANY LIMITATION OF LIABILITY SET FORTH HEREIN IS UNENFORCEABLE OR
INAPPLICABLE FOR ANY REASON, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY TO THE
OTHER UNDER ANY LEGAL THEORY (INCLUDING ITS OWN NEGLIGENCE) FOR DAMAGES ARISING
DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, WILL NOT EXCEED THE ACTUAL DIRECT
DAMAGES SUFFERED BY OTHER PARTY. This Section shall survive termination of this
Agreement.
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14. Non-Disclosure.
(a) Each Party ("Receiving Party") acknowledges that it will be
entrusted with confidential information relating to the business, services, and
products of the other Party or Parties ("Disclosing Party"). Receiving Party
shall maintain the confidentiality of (i) all such information furnished to it
by Disclosing Party and (ii) the terms and conditions of this Agreement.
Receiving Party shall use confidential information of Disclosing Party only as
expressly required or permitted by this Agreement or as is reasonably necessary
in performance of this Agreement. The obligations of confidentiality under this
Section 14 shall survive any termination of this Agreement and shall remain in
full force and effect for one year after the expiration of this Agreement,
except that no Party shall be required to maintain as confidential any
information which (i) is obtained from a third party which had the right to
disclose such information; (ii) is subsequently disclosed or made public by a
party other than the Parties to this Agreement, and/or their successors, or by a
governmental authority; or (iii) must be disclosed pursuant to applicable law.
(b) Since unauthorized use, transfer or disclosure of a Party's
confidential information will diminish the value to the owner of the proprietary
interests that are the subject of this Agreement, if a Receiving Party breaches
any of its obligations hereunder, the Disclosing Party shall be entitled to seek
equitable relief to protect its interests, including, but not limited to,
injunctive relief, as well as money damages. The rights and remedies of the
Disclosing Party set forth in this Agreement are not exclusive and are in
addition to any other rights and remedies provided by law.
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(c) Notwithstanding anything to the contrary set forth herein or
in any other agreement to which the Parties hereto are parties or by which they
are bound, the obligations of confidentiality contained herein and therein, as
they relate to the transactions contemplated by the Asset Purchase Agreement
shall not apply to the tax structure or tax treatment of the transactions
contemplated by the Asset Purchase Agreement, and each Party hereto (and any
employee, representative, or agent of any Party hereto) may disclose to any and
all persons, without limitation of any kind, the tax structure and tax treatment
of the transactions contemplated by the Asset Purchase Agreement and all
materials of any kind (including opinions or other tax analysis) that are
provided to such party relating to such tax treatment and tax structure;
provided, however, that such disclosure shall not include the name (or other
identifying information not relevant to the tax structure or tax treatment) of
any person and shall not include information for which nondisclosure is
reasonably necessary in order to comply with applicable securities laws.
15. Relationship of Parties. This Agreement does not in any way
create the relationship of principal and agent between WebLink and Metrocall,
and under no circumstances shall Metrocall hold itself out to be, or in any way
be considered as an agent of WebLink, nor shall Metrocall be able to legally
bind WebLink to any other agreements.
16. Notices. All notices to be given by a Party to the other
shall be in writing and shall be given in person, by telefax with receipt
confirmed, by overnight courier receipt requested, or by depositing such notices
in the United States mail, postage prepaid (by either registered or certified
mail, return receipt requested), and addressed as follows unless a change of
such address has been given and acknowledged:
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To Metrocall or Parent:
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Metrocall, Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, C.O.O.
With a copy to:
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To Licensees or WebLink Wireless:
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WebLink Wireless, Inc.
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Office
With a copy to:
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
17. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Parties, their successors and assigns.
18. Assignment. The Licensees may not assign this Agreement or
their and obligations hereunder without the prior written consent of Metrocall.
Each of WebLink Wireless and Metrocall may assign this Agreement or its rights
and obligations hereunder to an affiliated entity without the prior consent of
the other Parties; provided, however that the assigning Party shall remain
primarily liable for its obligations hereunder and such assignment shall not
relieve the assigning Party of any of its Liabilities hereunder.
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19. Governing Law. This Agreement shall be governed in accordance
with the laws of the State of New York, without giving effect to any choice or
conflict of law provision or rule that would cause the application of the laws
of the state of any jurisdiction other than the laws of the State of New York to
be applied.
20. Dispute Resolution. Any and all disputes arising out of,
directly or indirectly related to this Agreement or the relationship of the
Parties to this Agreement shall be settled by binding arbitration by a panel of
one (1) arbitrator in accordance with the Judicial Arbitration and Mediation
Services, Inc. or any successor thereof, which arbitrator shall be familiar with
or have experience in the wireless messaging industry. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall have the authority to award specific performance
of the terms of this Agreement, as well as any other legal or equitable
remedies. Any disputes over whether a matter under this Agreement is subject to
arbitration shall be settled by binding arbitration. In any arbitration
proceeding each Party shall be responsible for its own attorney's fees and costs
associated with that arbitration. The Parties agree and acknowledge that, due to
the unique nature of the subject matter of this Agreement, a Party would be
irreparably damaged in the event another Party fails to perform its obligations
hereunder, which damage could not be adequately compensated except by specific
performance of this Agreement. In the event that a Party refuses to perform its
obligations hereunder or otherwise breaches this Agreement, it is agreed that
another Party shall have, in addition to any other rights available to it, the
right to obtain temporary or permanent injunctive relief, but not limited to,
specific performance of any and all obligations without any showing of actual
damages or inadequacy of legal remedy. This Section shall survive the
termination of this Agreement.
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21. Force Majeure. No Party shall be liable to any other Party
for any delay or failure by such Party to perform its obligations under this
Agreement or otherwise if such delay or failure arises from any cause beyond the
reasonable control of such Party, including, without limitation, labor disputes,
strikes, acts of God, floods, lightning, shortages of materials, rationing,
utility or communication failures, earthquakes, casualty, war, acts of the
public enemy, riots, insurrections, embargoes, blockades or regulation or orders
of governmental authorities. If a Party shall be delayed or prevented from
performing this Agreement due to any cause beyond its reasonable control, such
delay shall be excused during the continuance of such delay and the period of
performance shall be extended to the extent necessary to enable such Party to
perform its obligations after the cause of such delay has been removed.
22. Entire Agreement; Amendments. This Agreement along with the
contemporaneously executed Asset Purchase Agreement and Schedules thereto,
Indemnification Agreement, Registration Rights Agreement and the Warrants
constitutes the entire agreement between the Parties on the subject matter
hereof, to the exclusion of all prior or contemporaneous representations,
understandings, or agreements, and all warranties, expressed or implied, with
reference to the subject matter hereof, and it may not be modified or amended
except by an agreement in writing between the Parties hereto.
23. No Waiver. The failure of any Party to require the
performance of any item or obligation of this Agreement shall not prevent the
subsequent enforcement of such term or obligation, or be deemed a waiver of any
subsequent enforcement of such term or obligation, or be deemed a waiver of any
subsequent breach. No change, waiver or discharge hereof shall be valid unless
it is in writing, and signed by an authorized representative of the Party
against which such change, waiver or discharge is sought to be enforced.
24. Severability. The invalidity of any of the provisions of this
Agreement shall not effect the validity or enforceability of the remaining
provisions of this Agreement so long as the invalidity of such provisions does
not deprive any Party of the material benefits of this Agreement, in which case
the Parties agree to negotiate in good faith to restore such benefits by
amending this Agreement. If any provision of this Agreement is determined by a
Final Order of a court or governmental entity to be invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect and will in no way be affected, impaired or invalidated.
In that event, the Parties shall use their best efforts, at no additional cost
to Weblink other than reasonable legal fees, to immediately bring this Agreement
into compliance with such determinations, consistent with the terms and spirit
of this Agreement.
25. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall be
deemed one and the same agreement.
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IN WITNESS WHEREOF, each Party, intending hereto to be bound has
caused this Management and Spectrum Lease Agreement to be executed as of the day
and year first written above, and the persons signing warrants that they have
authority to bind the respective Parties hereto.
METROCALL, INC. PAGEMART II HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇ Buckenham
----------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇. ▇▇▇▇ Buckenham
Title:President and CEO Title: President
METROCALL HOLDINGS, INC. PAGEMART PCS HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇ Buckenham
----------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇. ▇▇▇▇ Buckenham
Title: President and CEO Title: President
WEBLINK WIRELESS I, L.P.
By: WEBLINK WIRELESS, INC., its
general partner
By: /s/ ▇. ▇▇▇▇ Buckenham
-----------------------------
Name: ▇. ▇▇▇▇ Buckenham
Title: President and CEO
WEBLINK WIRELESS, INC.
By: /s/ ▇. ▇▇▇▇ Buckenham
-----------------------------
Name: ▇. ▇▇▇▇ Buckenham
Title: President and CEO
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