AMENDMENT TO MOBILE GATEWAY
AGREEMENT
FOR ADVANCE
PAYMENTS
THIS AMENDMENT (the "Amendment") to the Mobile
Gateway Agreement (defined below) is entered into as of the 1st day
of July, 2005 (the "Amendment Effective Date") by and between
Mobile Messenger Australia Pty Ltd. ("Mobile Messenger") and New
Motion ("Customer").
WHEREAS, Mobile Messenger and Customer are
parties to a Mobile Gateway Agreement dated 19th April 2005 (the
"Mobile Gateway Agreement") pursuant to which Mobile Messenger
provides certain services to Customer; and
WHEREAS, pursuant to the terms of the Mobile
Gateway Agreement Mobile Messenger currently pays to Customer a
portion of the revenue Mobile Messenger receives from the
applicable carrier for the sale of Customer content ("Customer
Revenue Share");
WHEREAS, pursuant to the terms of the Mobile
Gateway Agreement Mobile Messenger is only obligated to pay
Customer the Customer Revenue Share subsequent to when (and if)
Mobile Messenger actually receives payment from the applicable
carrier for the sale of such Customer content;
WHEREAS, Mobile Messenger and Customer desire to
modify the payment terms of the Mobile Gateway Agreement effective
as of the Amendment Effective Date whereby Mobile Messenger shall
advance to Customer a portion of the Customer Revenue Share prior
to Mobile Messenger's receipt of the revenue from the applicable
carrier for the sale of Customer content as more particularly
described herein.
NOW, THEREFORE, in consideration of the mutual
covenants made herein, the Mobile Gateway Agreement is amended as
set forth below.
1.
Defined Terms.
All terms used in this Amendment and
not otherwise defined herein, shall have the meanings ascribed to
such terms in the Mobile Gateway Agreement.
2.
Advance. Effective on the Amendment Effective Date Mobile
Messenger shall advance to Customer a portion of the monthly fees
which Mobile Messenger anticipates collecting from the applicable
carriers related to the sale of Customer content under the Mobile
Gateway Agreement as follows:
(a) For each calendar month during the Term,
subject to the provisions of this Amendment, Mobile Messenger shall
advance to Customer seventy percent (70%) of the fees Mobile
Messenger would have owed to such Customer under the Mobile Gateway
Agreement had Mobile Messenger received from the applicable carrier
the fees attributable to the sale of the Customer content for such
month (the "Monthly Advance"), net of the Mobile Messenger Fee, as
defined below (the "Net Advance"). Such Net Advance shall be paid
within the number of days of the end of such applicable month as
specified (and selected by Customer) on Exhibit A attached
hereto.
(b) Customer acknowledges and agrees that the
Monthly Advance is an advance of the amounts Mobile Messenger may
owe to Customer under the Mobile Gateway Agreement. Customer
acknowledges and agrees that the Mobile Messenger Fee be deducted
from the Monthly Advance as consideration for the advance payment.
Accordingly, Mobile Messenger shall offset amounts owed to Customer
under the Mobile Gateway Agreement in an amount equal to the
Monthly Advance Amount, and Mobile Messenger shall be entitled to
retain all amounts owed to Customer under the Mobile Gateway
Agreement until such time as it has received actual payment from
carriers for Customer's content for the applicable month in an
amount equal to the Monthly Advance. The remaining balance payable
to Customer under the Mobile Gateway Agreement will be paid in
accordance with its terms subject to the additional terms set forth
below.
3.
Mobile Messenger Fee.
In consideration for providing the
advance as set forth herein, Mobile Messenger shall retain, as a
fee, the percentage of the aggregate Monthly Advance as specified
on Exhibit A attached hereto and such fee shall be retained
by Mobile Messenger and deducted from the Monthly Advance to be
made by Mobile Messenger in connection with Section 2 hereof (the
"Mobile Messenger Fee").
(a)
Mobile Messenger's
Election. Notwithstanding
the foregoing, Mobile Messenger may in its sole discretion at any
time upon prior written notice to Customer elect to revert back to
(and therefore pay customer in accordance with) the payment
schedule originally specified in the Mobile Gateway Agreement
(instead of the advance schedule specified in Section 2 of this
Amendment) for any and all future payments under the Mobile Gateway
Agreement
