ITS HM5000
CONTRACT UNTIL SEPTEMBER 30, 2003, OR
SUCH LATER DATE AS MAY BE MUTUALLY AGREED BY THE PARTIES.
EACH HM5000 CUSTOMER
SHALL BE PERMITTED TO RENEW ITS HM5000 CONTRACT UPON EXPIRATION IN ACCORDANCE
WITH THE RENEWAL TERMS THEREOF AND, IN THE EVENT OF ANY SUCH RENEWAL (WHETHER
AUTOMATIC OR OTHERWISE), SUCH EXPIRATION SHALL NOT CONSTITUTE A TERMINATION OF
SUCH CONTRACT THAT WOULD RELIEVE SELLER OF ITS OBLIGATION TO BUYER TO PROVIDE
HM5000 AIRTIME SERVICES TO SUCH HM5000 CUSTOMER PURSUANT TO THIS SECTION 1.1;
PROVIDED, HOWEVER, THAT NO HM5000 CUSTOMER MAY RENEW ITS HM5000 CONTRACT FOR A
TERM THAT EXTENDS BEYOND SEPTEMBER 30,2003, UNLESS OTHERWISE MUTUALLY AGREED BY
THE PARTIES.
UPON INSTRUCTION FROM BUYER, AND PROVIDED THAT SUCH SUSPENSION
WOULD NOT RESULT IN SELLER'S BREACH OF THE APPLICABLE HM5000 CONTRACT, SELLER
SHALL PERMANENTLY CEASE OR TEMPORARILY SUSPEND PROVIDING HM5000 AIRTIME SERVICES
TO ANY HM5000 CUSTOMER.
BECAUSE, SUBJECT TO THE LIMITATIONS SET FORTH ABOVE,
ALL RIGHTS UNDER THE HM5000 CONTRACTS HAVE BEEN ASSIGNED TO BUYER PURSUANT TO
THE PURCHASE AGREEMENT, SUBJECT TO SECTION 4.L(C), SELLER SHALL HAVE NO RIGHT TO
TERMINATE OR MODIFY THE HM5000 CONTRACTS OR TO DISCONTINUE PROVISION OF THE
HM5000 AIRTIME SERVICES, EXCEPT AS DIRECTED BY BUYER IN ACCORDANCE WITH THE
FOREGOING.
1.2
CONSIDERATION FOR PROVISION OF HM5000
AIRTIME SERVICES.
IN EXCHANGE FOR SELLER'S PROMISE TO BUYER TO PROVIDE THE
HM5000 AIRTIME SERVICES TO THE HM5000 CUSTOMERS IN ACCORDANCE WITH SECTION 1.1,
FOR SO LONG AS SELLER PROVIDES SUCH HM5000 AIRTIME SERVICES PURSUANT TO SECTION
1.1, EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (G), BUYER HEREBY AGREES TO PAY
SELLER SELLER'S ACTUAL COSTS OF PROVIDING THE HM5000 AIRTIME SERVICES TO THE
EXTENT SET FORTH BELOW:
(A)
THIRD PARTY CELLULAR SERVICES.
(I)
SELLER IS CHARGED FOR THE HM5000 AIRTIME
SERVICES BY SELLER'S CELLULAR CARRIERS (THE "CELLULAR CARRIERS"), WHO CHARGE
SELLER PER MINUTE OF HM5000 AIRTIME SERVICES. THE PER MINUTE RATES FOR EACH
CELLULAR CARRIER THAT SELLER USES TO PROVIDE THE HM5000 AIRTIME SERVICES ARE
ATTACHED HERETO, LISTED BY CARRIER, AS EXHIBIT B-1.
SELLER HEREBY REPRESENTS
AND WARRANTS TO PURCHASER THAT THE RATES AND INFORMATION SET FORTH ON EXHIBIT
B-1 ARE TRUE, CORRECT AND COMPLETE AS OF THE DATE HEREOF.
SELLER SHALL CHARGE
BUYER FOR THE HM5000 AIRTIME SERVICES INVOICED TO SELLER BY THE CELLULAR
CARRIERS AT THE APPLICABLE RATE SELLER IS CHARGED FOR SUCH HM5000 AIRTIME
SERVICES, AS SET FORTH IN EXHIBIT B-1.
SELLER MAY AMEND EXHIBIT B-1 ONLY UPON
THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO BUYER AND ONLY TO THE EXTENT NECESSARY
TO REFLECT ACTUAL RATE INCREASES IMPOSED ON SELLER BY THE CELLULAR CARRIERS AND
TO REFLECT CHANGES IN CELLULAR CARRIERS.
(II)
SELLER SHALL USE COMMERCIALLY REASONABLE
EFFORTS (AND IN NO EVENT LESS THAN THE SAME LEVEL OF EFFORTS THAT SELLER USED IN
SUCH SITUATIONS PRIOR TO CLOSING) (A) TO AUDIT THE CHARGES MADE TO IT BY THE
CELLULAR CARRIERS FOR THE HM5000 AIRTIME SERVICES IN ORDER TO VERIFY THAT SELLER
WAS CHARGED AT THE CORRECT RATES AND (B) IN THE EVENT SUCH AUDIT REVEALS AN
OVERCHARGE