Exhibit 10.5(a)
EXECUTION COPY
GENERAL PURCHASE AGREEMENT
BETWEEN
METROPCS WIRELESS, INC.
AND
LUCENT TECHNOLOGIES INC.
Agreement No.: LNM01NMDK02005
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
|
|
|
***
|
|
Where this marking appears throughout this Exhibit 10.5(a),
information has been omitted pursuant to a request for confidential
treatment and such information has been filed with the SEC separately.
|
TABLE OF CONTENTS
GENERAL PURCHASE AGREEMENT
BETWEEN METROPCS WIRELESS, INC.
AND LUCENT TECHNOLOGIES INC.
|
|
|
|
|
|
|
Page
|
Article I General Provisions Applicable To Entire Agreement
|
|
|
|
|
1.1 Headings and Definitions
|
|
|
|
|
1.2 Term of Agreement
|
|
|
|
|
1.3 Scope
|
|
|
|
|
1.4 Entitlement to Discounts
|
|
|
|
|
1.5 Planning Information
|
|
|
|
|
1.6 Orders
|
|
|
|
|
1.7 Customer-Initiated Changes
|
|
|
|
|
1.8 Seller-Initiated Changes
|
|
|
|
|
1.9 Prices
|
|
|
|
|
1.10 Invoices and Terms of Payment
|
|
|
|
|
1.11 Delivery and Installation Schedule
|
|
|
|
|
1.12 Transportation
|
|
|
|
|
1.13 Packing, Marking and Shipping
|
|
|
|
|
1.14 Title and Risk of Loss
|
|
|
|
|
1.15 Compliance With Laws
|
|
|
|
|
1.16 Taxes
|
|
|
|
|
1.17 Training
|
|
|
|
|
1.18 Termination of Orders for Convenience
|
|
|
|
|
1.19 Termination for Breach
|
|
|
|
|
1.20 Patents, Trademarks and Copyrights
|
|
|
|
|
1.21 Use of Information
|
|
|
|
|
1.22 Notices
|
|
|
|
|
1.23 Right of Access
|
|
|
|
|
1.24 Independent Contractor
|
|
|
|
|
1.25 Limitations on Remedies
|
|
|
|
|
1.26 Force Majeure
|
|
|
|
|
1.27 Assignment
|
|
|
|
|
1.28 General Indemnities
|
|
|
|
|
1.29 Publicity
|
|
|
|
|
1.30 Applicable Law
|
|
|
|
|
1.31 Survival of Obligations
|
|
|
|
|
1.32 Severability
|
|
|
|
|
1.33 Non-Waiver
|
|
|
|
|
1.34 Customer Responsibility
|
|
|
|
|
1.35 Dispute Resolution
|
|
|
|
|
1.36 Security Interest
|
|
|
|
|
1.37 Financing Requirements
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-i-
|
|
|
|
|
|
|
Page
|
1.38 Representations, Warranties and Covenants of Seller
|
1.39 Representations, Warranties and Covenants of Customer
|
1.40 Subcontractors
|
1.41 Insurance
|
|
Article II Provisions Applicable to the Purchase of Products
|
|
2.1 General
|
2.2 Product Availability
|
2.3 Documentation
|
2.4 Product Compliances
|
2.5 Product Changes
|
2.6 Continuing Product Support Parts and Services
|
2.7 Specifications
|
2.8 Customer Technical Support
|
2.9 Product Warranties
|
2.10 Acceptance
|
|
Article III Provisions Applicable to the Licensing of Licensed Materials
|
|
3.1 General
|
3.2 License
|
3.3 Title, Restrictions and Confidentiality
|
3.4 Changes in Licensed Materials
|
3.5 Modifications to Software; Product Compliances
|
3.6 Modification by Customer
|
3.7 Related Documentation
|
3.8 Software Warranty
|
3.9 Cancellation of License
|
3.10 Taxes Applicable to Software
|
|
Article IV Provisions Applicable to Engineering, Installation and Other Services
|
|
4.1 General
|
4.2 Acceptance of Installation
|
4.3 Sellers Personnel
|
4.4 Conditions of Installation and Other Services Performed on Customers Site
|
4.5 Work Done by Others
|
4.6 Sellers Right to Re-Deploy Resources
|
4.7 Services Warranties
|
|
Article V Entire Agreement and Execution
|
|
5.1 Entire Agreement
|
5.2 Termination of Existing Agreement
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-ii-
|
|
|
|
|
|
|
Page
|
Attachments
|
|
|
|
|
|
|
|
|
|
Attachment A *** Pricing
|
|
|
|
|
Attachment B Training
|
|
|
|
|
Attachment C *** Pricing
|
|
|
|
|
Attachment D RTSA and Sun MVM
|
|
|
|
|
Attachment E Responsibilities Matrix for System Engineering, Implementation, and
Optimization Services
|
|
|
|
|
Attachment F Change Management Process
|
|
|
|
|
Attachment G Repair and Exchange Services
|
|
|
|
|
Attachment H Product Standard Intervals
|
|
|
|
|
Attachment I Cell Site Self-Install Agreement
|
|
|
|
|
Attachment J Services
|
|
|
|
|
Attachment K Co-Marketing
|
|
|
|
|
Attachment L Messaging
|
|
|
|
|
Attachment M Intelligent Network
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-iii-
GENERAL PURCHASE AGREEMENT BETWEEN METROPCS WIRELESS, INC.
AND
LUCENT TECHNOLOGIES INC.
This
General Purchase Agreement (this
Agreement)
, effective as of the Effective Date, is
made by and between Lucent Technologies Inc., a Delaware corporation having an office at 600
Mountain Avenue, Murray Hill, New Jersey 07974, and MetroPCS Wireless, Inc., a Delaware
corporation having an office at 8144 Walnut Hill Lane, Suite 800, Dallas, Texas 75231.
RECITALS:
WHEREAS,
Customer provides PCS at or near the 1.9 GHz bands under a license(s) issued by the
FCC;
WHEREAS,
Customer wants Seller, at Customers request, to be one of its suppliers of wireless base
stations, switches, power, cable and transmission equipment and Services to include, without
limitation, engineering services, such as preparation of equipment specifications, and
installation of networks, such as equipment installation, equipment removal and cable mining, and
maintenance and repair of networks, and Seller desires to provide such Products and Services to
Customer, all on the terms and conditions set forth herein;
WHEREAS,
Customer and Seller entered into a General Agreement for Purchase of Personal
Communications Services Systems effective as of October 1, 2002 (as the same may have been amended
and/or supplemented from time to time, the
2002
Contract)
, pursuant to which Seller agreed to
provide products, licensed materials and services to Customer; and
WHEREAS,
the Parties desire to terminate the 2002 Contract in its entirety as of the Effective
Date and to enter into this Agreement to define the current relationship between the Parties.
NOW, THEREFORE,
in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned parties hereby agree to the foregoing and as follows:
ARTICLE I
GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT
1.1 HEADINGS AND DEFINITIONS
All headings used in this Agreement are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Agreement or any clause contained herein. For
purposes of this Agreement, the following definitions will apply:
AAA
shall have the meaning set forth in
Section 1.35
.
Acceptance
means that: (a) with respect to Products and Licensed Materials, the applicable
Products and/or Licensed Materials have been accepted as set forth in
Section 2.10(a)
or
Section
2.10(b),
as applicable; and (b) with respect to Services, (i) the applicable Acceptance Tests have
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
been successfully performed as set forth in
Section 4.2
and Seller has completed all Punch
List Items; or (ii) Acceptance is deemed to occur under
Section 4.2.
Acceptance
Date
means the date on which the applicable Product, Licensed Material or Service
achieves Acceptance.
Acceptance Tests
means all mutually agreed acceptance tests to be performed pursuant to this
Agreement all of which are designed to determine whether the Products, Licensed Materials and the
Services meet the Specifications and the terms and conditions contained in this Agreement.
Advertising
means all advertising, sales promotion, press releases, and other publicity matters
relating to this Agreement.
Affiliate
means any entity that, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with another entity, where control means
to own or control over fifty percent (50%) of the voting power of the applicable entity or
otherwise to direct or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or by contract or otherwise, provided that, once such
control ceases to exist, the affected entity will no longer qualify as an Affiliate for purposes
of this Agreement.
Annual Maintenance Fees
means those charges for Services and Software Updates under Sellers
BRSS Program as further described in
Attachment D
to this Agreement.
Applicable Laws
means: (a) as to either Party, all federal, state and local laws, ordinances,
rules, regulations, court orders and governmental or regulatory agency orders that are applicable
to its performance of this Agreement; and (b) in the case of Seller, all federal, state and local
laws, ordinances, rules, regulations, court orders and governmental or regulatory agency orders
that are applicable to products, licensed materials and services of the type to be provided to
Customer hereunder.
Applicable
Permits
means all permits and licenses which either
Party requires for it to conduct business and/or perform its
obligation under this Agreement.
Assignment
shall have the meaning set forth in
Section 1.27(a)
.
Authorized Users
means: (a) Customer and its employees; (b) Customers Affiliates and their
employees; (c) any Designated Entity and its employees; ***.
Backwards Compatible
means, with respect to Software, the ability of a new Major Release,
Software Update, or Software Upgrade (as defined in
Attachment D)
to function with the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
immediately preceding Major Release, Software Update, or Software Upgrade, as the case may
be, in accordance with their respective Specifications, and with all existing In Revenue Service
Seller Manufactured Products (only to the extent that such Software has been designed to function
with such Seller Manufactured Products) already installed or already ordered from Seller to be
installed in the relevant PCS System.
BRSS Program
and
BRSS
means the optional program described in
Attachment D
of this Agreement
under which Seller offers to Customer Major Releases, Point Releases, Software Updates, Software
Upgrades, Standard Base Software Releases, Retrofits and Crafts for Software for which Customer
has paid the applicable Annual Maintenance Fee.
Business
Day
means any day other than a Saturday or Sunday or a day on which banks in Dallas,
Texas are authorized or required by Applicable Laws to be closed.
CDMA
shall mean code-division multiple access, a form of spread spectrum technology, which
operates in segments of 1.25 MHz.
Change
Order
shall have the meaning set forth in Section
1.7(a)
.
Claims
shall have the meaning set forth in
Section 1.35
.
Comparable
Customers
has the meaning defined in
Section 1.9(d)(i)
.
Craft
shall
have the meaning set forth in
Attachment D
.
Creditworthy
shall mean that: (a) less than
*** of the non-disputed receivable
balance owed to Seller and its Affiliates is aged over *** days from the invoice date
at any given time unless otherwise mutually agreed to in writing; (b) the total non-disputed
receivable balance owed to Seller and its Affiliates does not exceed *** unless otherwise mutually agreed to in writing; (c) Customer has provided
consolidated financial statements to Seller in accordance with
Section 1.6(b); and (d) Customer and its Affilitates have
not experienced a material adverse change in the business assets operation or condition, financial or otherwise, taken as a whole, which materially and adversely
affects Customers ability to meet its payment obligations hereunder.
Customer
means (a) MetroPCS Wireless, Inc. and any successors and permitted assigns; (b) any
Customer Affiliates with Pre-Existing Affiliate Agreements made a party hereto under
Section
1.3(b);
and (c) any Affiliate who elects to purchase or license Products, Licensed Materials and/or
Services under this Agreement; provided that any such Affiliate executes a written acknowledgment
agreeing to be bound by the provisions of this Agreement.
Customer
Event of Default
shall have the meaning set forth in
Section 1.19(a)
.
Customer
Changes
shall have the meaning set forth in Section
1.7(a)
.
Customer
Indemnified Parties
shall have the meaning set forth
in Section
1.20(a)
.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
Customer Price List
means Sellers published price notification releases furnished by
Seller for purposes of communicating Sellers prices or pricing-related information to Customer;
however, this does not include firm price quotations.
Delivery Date, Delivery
or similar derivations thereof means the actual date on which a
Product, Licensed Materials or other item to be delivered by Seller hereunder is physically
delivered to the destination designated by Customer in the applicable Purchase Order and the
Customer designated recipient has signed off on the same.
Designated Entity
means any Person to which Customer or one of its Affiliates leases or provides
Products and with respect to which Customer or one of its Affiliates has an equity or membership
interest of seventy percent (70%) or more.
Designated Processor
means the Product for which the licenses to use Licensed Materials are
initially granted.
Disabling
Code
shall have the meaning set forth in
Section 3.8(a)(v)
.
Discontinued
Product
shall have the meaning set forth in
Section 2.2
.
Effective Date
means June 6, 2005.
EFT
shall have the meaning set forth
in
Section 1.10(a)
.
Existing Market
shall mean a Market which is listed in or defined as an Existing Market in
Attachment
A
or C
, as appropriate.
FCC
means Federal Communications Commission, or any successor entity.
Firmware
means a combination of (a) hardware; and (b) Software represented by a pattern of bits
contained in such hardware. The Firmware referenced herein is the current version available for
commercial customers.
First Office Application
shall mean the first installation and use in any of Sellers customers
networks of a particular Product or Licensed Material (including a Software release, feature and
Software Upgrade).
Fit
means the suitability or readiness of a Product, Software and/or other item for a particular
application, including environmental extremes, marginal parameters, physical and signal
compatibility with interfacing systems and surroundings, level of performance, safety margins,
reliability, maintainability and installability.
Form
means the weight, density, chemical or product composition, size, shape, structure,
appearance, protocol, pattern, composition, configuration and marking/identification of a Product,
Software and/or other item.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
Function
means the set of features that the Product, Software and/or other item has been
designed for use, as described in its Specifications.
Force Majeure
means fires, strikes, riots, embargoes, explosions, earthquakes, floods, wars,
water, the elements, government requirements, civil or military authorities, acts of God or by the
public enemy, inability to secure raw materials or transportation facilities, acts or omissions of
carriers or suppliers of raw materials, or other similar causes beyond a Partys control, but only
to the extent that a Partys actual performance is impaired whether or not similar to the
foregoing.
Guaranteed Delivery Date
shall mean the date Seller shall be obligated to deliver certain items
to Customer based on the intervals set forth in
Attachment H
.
Hazardous Material
means material designated as a hazardous chemical substance or mixture by
the Administrator, pursuant to Section 6 of the Toxic Substance Control Act, a hazardous
material as defined in the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.), or a
hazardous substance as defined in the Occupational Safety and Health Act Hazard Communication
Standard (29 CFR 1910.1200).
Indemnifying
Party
shall have the meaning set forth in
Section 1.28(a)
.
Initial
Term
is defined in
Section 1.2(a)
.
Information
means all documentation and technical and business information in whatever form
recorded, which a Party may furnish under, or has furnished in contemplation of, this Agreement.
Information does not include Software (whether or not embodied in Firmware) or Related
Documentation, the use of which is governed by
Article III
of this Agreement.
Infringement
Claim
shall have the meaning set forth in
Section 1.20
.
In Revenue Service
means use of a Product or any part thereof for commercial service, whether or
not revenue is actually being generated.
Installation
Completion
shall have the meaning set forth in
Section 4.2
.
Installation
Completion Date
shall have the meaning set forth in
Section 4.2
.
Know-How
means concepts, techniques, information, reports, programs, program materials,
documentation, diagrams, outlines, flow charts, user interfaces, technology, formulas, processes,
algorithms and the like that are used to implement, support and/or develop a Product and/or
Licensed Material.
Liabilities
means losses, costs (including, but not limited to, reasonable attorneys fees and
costs at trial and on appeal, if any), claims, demands, injuries, damages, judgments, penalties,
fines, forfeitures, or liabilities.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
Licensed Area
means one of the major trading areas in frequency blocks A and B or one of the
basic trading areas in frequency blocks C, D, E, or F for which the FCC has granted a license to
construct and operate a PCS System.
Licensed Materials
means the Software and Related Documentation for which licenses are granted
by Seller under this Agreement; no Source Code versions of Software are included in Licensed
Materials.
Lucent
is synonymous with Seller.
Major
Release
shall have the meaning set forth in
Attachment D
.
Market
shall mean a Licensed Area, or an area within a Licensed Area, or combination of Licensed
Areas and areas in Licensed Areas, as designated by Customer for PCS.
MOP
shall have the meaning set forth in
Section 4.4
.
MSC
shall mean mobile switching center.
New Market
means a Market where Customer has not previously provided PCS and where Customer
deploys a PCS System that is placed into In Revenue Service. Selected New Markets are identified
in
Attachments A and C
.
Others
shall have the meaning set forth in
Section 1.21(a)
.
Party
means either Customer or Seller, and
Parties
means Customer and Seller.
PCS
means broadband personal communications services as authorized by the FCC in the frequency
range of 1850MHz to 1910MHz and 1930MHz to 1990MHz.
PCS CDMA System Products
means a collection of (a) PCS CDMA products and software which comprise
a PCS System used to provide PCS Services in the PCS frequency range which are used in switching,
wireless access and transport of voice and data at PCS frequencies based on CDMA technology
substantially similar those Products and Software which are described in
Attachments A and C,
Sections 4A(i)(ii)(iii) and 4B(i)(ii)(iii)(iv)(v)(vi)(viib)
, and which are used and required in an
integrated network solution, and (b) those new, replacement or enhanced PCS CDMA products and
software that become available during the Term when generally available which comprise a PCS System
to provide PCS Services in the PCS frequency range which are used in switching, wireless access and
transport of voice and data at PCS frequencies based on CDMA technology substantially similar to
the Products and Software described in
Attachments A and C,
Sections 4A(i)(ii)(iii)
and
4B(i)(ii)(iii)(iv)(v)(vi)(viib)
and which are used and required in an integrated network solution.
PCS CDMA System Products does not include site material or cabling ancillary to base station
replacement
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
PCS
System
means a collection of products and software to be deployed and operated by
Customer, an Affiliate or a Designated Entity to provide PCS services in the PCS frequency range.
Person
shall mean any individual, corporation, company, partnership, joint venture, association,
trust, unincorporated organization or governmental authority.
Point Release
shall have the meaning set forth in
Attachment D.
Pre-Existing Affiliate Agreement
shall have the meaning set forth in
Section 1.3(b).
Price Effective Date
means: (a) the date of Customers Purchase Order, if Seller receives and
acknowledges receipt of the Purchase Order within five (5) Business Days of the date of the
Purchase Order; (b) the date Seller actually receives the Purchase Order, if Seller receives and
acknowledges receipt of the Purchase Order more than five (5) Business Days after the date of the
Purchase Order; or (c) the date of the Purchase Order, if Seller is deemed to have accepted the
Purchase Order as provided in
Section 1.6(a).
Product
means systems, equipment, and parts thereof acquired by Customer from Seller under this
Agreement, but the term does not mean Software whether or not such Software is part of Firmware.
The Products referenced herein are the current versions available for commercial customers.
Product Manufacturing Information
means manufacturing drawings and specifications of raw
materials and components, including part manufacturing drawings and specifications covering
special tooling and the operation thereof, and a detailed list of all commercially available parts
and components purchased by Seller on the open market disclosing the part number, name and
location of the supplier, and price lists.
Punch List Items
means the additional Services to be performed by Seller when such Services must
be completed in order to achieve Acceptance, where the performance of Acceptance Tests has
indicated thai such Services were incomplete or not otherwise ready for Acceptance at the time of
the performance of such Acceptance Tests; provided that such Services are required to be performed
by Seller pursuant to the terms of this Agreement, including all related Acceptance Tests and
procedures.
Purchase Order
means any purchase order issued by Customer to Seller pursuant to, and subject to
the terms and conditions of, this Agreement, or any document that the Parties mutually agree upon
as the vehicle for Customers procurement of Products, Licensed Materials and Services pursuant
to, and subject to the terms and conditions of, this Agreement.
Related Documentation
or
Documentation
means materials useful in connection with Products
and/or Software, such as, but not limited to, flow charts, logic diagrams, program descriptions,
and Specifications. No Source Code versions of Software are included in Related Documentation.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
Remote
Technical Support
and
RTS
mean the optional support Service as described in
Attachment D.
Renewal Term
shall have the meaning set forth in
Section 1.2(b).
Repair Parts
means new, remanufactured, reconditioned, refurbished, or functionally equivalent
parts for the maintenance, replacement, and repair of Products sold pursuant to this Agreement.
RTS Program
shall have the meaning set forth in
Section 2.8.
Seller
means Lucent Technologies Inc. and any successors and permitted assigns.
Seller Changes
shall have the meaning set forth in
Section 1.8(a).
Seller Event of Default
shall have the meaning set forth in
Section 1.19(b).
Seller Manufactured Product
means a Product manufactured by Seller or purchased by it pursuant
to its procurement specifications.
Sellers Competitor
means an entity whose primary business is the development, manufacture or
sale (or licensing) of communications equipment and/or software.
Services
means the performance of work requested by Customer or required to be performed by
Seller under the terms of this Agreement and includes, but is not limited to: (a) engineering
services such as preparation of equipment specifications, preparation and updating of office
records, and preparation of a summary of material not specifically itemized in the Purchase Order;
(b) installation services such as installation, equipment removal, and cable mining; and (c) other
services, such as maintenance and repair.
Site
shall mean the land and/or buildings owned or leased by Customer, one of its Affiliates or
any Designated Entity for which all or any portion of a PCS System is or will be located.
Software
means a computer program consisting of a set of logical instructions and tables of
information which guide the functioning of a processor; such program may be contained in any medium
whatsoever, including hardware containing a pattern of bits representing such program, but the term
Software does not mean or include such medium. The Software described in this Agreement is the
current version available for commercial customers and generally provided by Seller in connection
with the Products referenced herein. Software shall include any Major Release, Software Update,
Software Upgrade, Craft, Point Release, Standard Base Software Release and Retrofit, all as defined
in
Attachment D,
which may be provided by Seller to Customer from time to time.
Software Update
shall have the meaning set forth in
Attachment D.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
Source Code
means any version of Software incorporating high-level or assembly language
that generally is not directly executable by a processor. Except as expressly provided herein,
this Agreement does not require Seller to furnish any Source Code.
Specifications
means Sellers or its vendors technical published specifications for particular
Products, Licensed Materials or Services furnished under this Agreement.
Standard Interval
means the elapsed time, as specified in
Attachment H,
between the date of a
Customer request for quote preparation of a Product, Licensed Material, and/or associated Service,
and: (a the Delivery Date for such Product or Licensed Material not installed by Seller or (b) the
Installation Completion Date for such Product or Licensed Material installed by Seller.
Start
Date
shall have the meaning defined in
Section 1.11(a)
Subcontractor
means all vendors, suppliers, consultants and subcontractors of every tier who
have a contract with Seller or another subcontractor for the performance of any part of the
Services.
Tax Assessment
means all federal, state, or local sales, use, excise, gross receipts, municipal
fees, transfer, transaction or similar taxes, fees, or surcharges, but excludes: (a) any tax, fee.
assessment, or surcharge on either Partys corporate existence, status, or income; (b) property
taxes, fees, assessment, or surcharges; (c) any corporate franchise tax, fee, assessment, or
surcharge; and (d) taxes, fees, assessment, and surcharges which are imposed directly on a Partys
gross or retail revenues.
Term
shall have the meaning set forth in
Section 1.2(b).
Territory
means the 50 states of the United States plus the District of Columbia.
Transition Period
shall have the meaning set forth in
Section 1.19(f).
Turnover
means, with respect to Products and Licensed Materials to be installed by Seller, that
Seller has completed all implementation and Seller-testing-related activities relating to such
Products and Licensed Materials, and such Products and Licensed Materials are ready for Customer
to conduct Acceptance Tests.
2002
Contract
shall have the meaning set forth in the Recitals.
Use
with respect to Licensed Materials means the loading, running, using, or copying of the
Licensed Materials, or any portion thereof, into or on a processor for execution of the
instructions and tables contained in such Licensed Materials.
Vendor Item
means a Product or partial assembly of Products furnished by Seller but neither
manufactured by Seller nor purchased by Seller pursuant to its procurement specifications.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
Warranty Period
means the period of time listed in the respective warranty clauses which,
unless otherwise stated, commences for: (a) Products and Licensed Materials: (i) on the Delivery
Date; or (ii) if installed by Seller, on the Acceptance Date; and (b) Services, on the date
Service is completed and accepted by Customer.
1.2 TERM OF AGREEMENT
(a) Initial
Term.
This Agreement shall be effective on the Effective Date and,
except as otherwise provided herein, shall continue in effect until the earlier of: (a) June
7, 2008;
or (b) *** (the
Initial Term).
The modification or termination of this Agreement shall not
affect the rights or obligations of either Party under any Purchase Order accepted by Seller
before the effective date of the modification or termination.
(b) Renewal
Terms.
Upon the expiration of the Initial Term, Customer will have the
right to extend the term of this Agreement for up to three (3) successive periods of one (1)
year
each (each such one (1) year period, a
Renewal
Term).
*** The Initial Term and the Renewal Terms are individually and collectively referred to
herein
as the
Term.
1.3 SCOPE
(a) General.
The terms and conditions of this Agreement shall apply to all
transactions pursuant to which Customer purchases, and Seller and/or any of its Affiliates
furnishes, Products, Licensed Materials and/or Services for use by Customer, its Affiliates
and/or
any Designated Entity, and not for resale.
(b)
New Customer Affiliates.
If Customer acquires a new Affiliate following the
date of this Agreement and such new Customer Affiliate is a party to one (1) or more
agreements
with Seller and/or one of Sellers Affiliates (each agreement, a
Pre-Existing Affiliate
Agreement)
covering substantially the same subject matter as this Agreement, Customer shall
have the right, upon written notice to Seller, to terminate (or cause the Customer Affiliate
to
terminate) any and all Pre-Existing Affiliate Agreements between such new Customer Affiliate
and Seller and/or one or more of its Affiliates without liability or penalty, and, upon
Sellers
receipt of a written acknowledgment from the Customer Affiliate agreeing to be bound by the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
terms and conditions of this Agreement, all products, software and services acquired by such
new Customer Affiliate from Seller and/or one of its Affiliates pursuant to such agreements
thereafter shall be subject to the terms of this Agreement as though such products, software and
services originally were provided to such new Customer Affiliate under this Agreement.
Notwithstanding the preceding sentence: (i) the warranty periods set forth in a Pre-Existing
Affiliate Agreement will continue to apply to the Products, Licensed Materials and Services
purchased, licensed, delivered and performed under such Pre-Existing Affiliate Agreement; (ii)
the prices, discounts, and credits set forth in this Agreement shall not retroactively apply to
the Products, Licensed Materials and Services purchased, licensed, delivered and performed under
a Pre-Existing Affiliate Agreement prior to the Effective Date; and (iii) ***.
(c) Scope of the Initial Project.
Seller and Customer acknowledge that the following
represents generally the schedule of work to be performed hereunder to deploy, maintain and/or
upgrades PCS CDMA System Products in the identified Markets. As soon as practicable, the Parties
shall jointly develop detailed project plans and delivery and installation schedules consistent
with the proposed schedule. The project plan will contain the
responsibilities of both Parties. ***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available for In Revenue
|
Market
|
|
Market Start
|
|
Service
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
1.4 ENTITLEMENT TO DISCOUNTS
(a) General. Attachments A and C
reflect the prices applicable to Customer following
the application of discounts to Sellers standard prices. These prices shall be provided to
Customer regardless of the number or level of Purchase Orders made by Customer, it being the
understanding of the Parties that neither Customer nor its Affiliates is under any obligation to
purchase or license any quantity of Products, Licensed Materials and/or Services from Lucent
under this Agreement. The Parties agree that Purchase Orders to be issued by Customer in
accordance with the terms of this Agreement will determine the actual purchases and related
rights, duties and obligations of the Parties pursuant to this Agreement.
Attachments A and C
may be modified from time to time by mutual written agreement of the Parties.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
(b) ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
***
1.5 PLANNING INFORMATION
Customer shall provide to Seller non-binding, rolling, four-quarter forecasts of
Customers expected annual purchases under this Agreement. Customer shall deliver to Seller an
updated version of each such rolling, four-quarter forecast on or before the beginning of each
calendar quarter during the Term of this Agreement. Customer will endeavor to make such forecast
and each quarterly update thereto accurate to within plus or minus *** of Customers
actual Purchase Orders for the applicable quarter and within plus or minus ***
with respect to the next approaching quarter of each rolling, four-quarter forecast. If, for any
particular quarter, Customers actual purchasing requirements exceed Customers most recent
forecast for that quarter by more than ***, Seller will have no
obligation to ***.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
Furthermore, the Parties shall meet on a semi-annual basis, or as otherwise mutually
agreed, to review product and software development plans and requirements. In addition, Seller
shall update Customer as to Sellers planned product and software developments and schedules, and
Customer shall update Seller as to Customers desired future services and product and software
requirements.
1.6 ORDERS
All Purchase Orders submitted by Customer shall be deemed to incorporate and be subject
to the terms and conditions of this Agreement unless otherwise agreed in writing.
(a) General.
All Purchase Orders, including electronic Purchase Orders, shall contain the
information detailed below:
|
(i)
|
|
complete and correct ship to and bill to addresses;
|
|
|
(ii)
|
|
the quantity and type of Products, Licensed Materials and/or Services
being ordered;
|
|
|
(iii)
|
|
the price or the appropriate pricing mechanism;
|
|
|
(iv)
|
|
the
Customer-requested Delivery Date in accordance with the Standard
Interval for the Product, Licensed Materials or Service being ordered. A
non-Standard Interval must be mutually agreed to by the Parties;
|
|
|
(v)
|
|
the
requested Turnover date in accordance with the Standard Interval for the
Product, Licensed Materials or Service being ordered; and
|
|
|
(vi)
|
|
reference to this Agreement.
|
Upon acceptance of the Purchase Order by Seller, the Customer requested delivery date contained in
the Purchase Order will be deemed to be the delivery date for purposes of the Purchase Order
No provision or data on any Purchase Order or contained in any documents attached to or referenced
in any Purchase Order or in any subordinate document (such as shipping releases), shall be
binding, except data necessary for Seller to fill the Purchase Order. All such other data and
provisions are hereby rejected. Electronic Purchase Orders shall be binding on Customer
notwithstanding the absence of a signature. Electronic Purchase Orders shall be subject to the
Purchase Order acceptance confirmation procedures under this Section. Customer shall be provided a
sample Purchase Order format in order to comply with the requirements herein.
Promptly following receipt thereof, Seller shall acknowledge the date of Purchase Order receipt
either in writing or electronic data interface format. If a Purchase Order is deemed accepted as
provided below, the date of the Purchase Order will be the Price Effective Date for purposes of
this Agreement.
All Purchase Orders are subject to acceptance by Seller; provided, however, that if Seller does not
accept Purchase Orders that: (1) are submitted in accordance with, and comply with, the terms and
conditions of this Agreement (including, without limitation, the lead times set forth in
Attachment
H);
(2) the quantities of Products, Software and Services ordered are within the parameters of the
forecasts submitted by Customer pursuant to
Section 1.5;
and (3) Customer is
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
sufficiently Creditworthy, and has
not materially breached any of its material obligations
under this Agreement, and Seller does not otherwise accept the Purchase Order for reasons other
than a Force Majeure, Customer will be ***.
If receipt of a Purchase Order is acknowledged by Seller, if not sooner accepted or rejected in
writing by Seller, Purchase Orders submitted for Products, Licensed Materials, and/or Services in
accordance with the terms and conditions of this Agreement shall be deemed accepted within ten
(10) days of Purchase Order receipt by Seller.
Notwithstanding
anything to the contrary in this Agreement or any Attachment, Customer is not
required and/or obligated to purchase or license any Product,
Software, Licensed Material, PCS
CDMA System Product, PCS System, Information, Related Documentation, Service, Know-How or any
other product or service from Lucent under this Agreement except as set forth in a duly
authorized, accepted Purchase Order.
(b) Credit Worthiness.
Seller reserves the right to place any Purchase Order on hold, delay
shipment, suspend performance (in each case with respect to a Product, Licensed Material or
Service not yet paid for by Customer) and/or reject a Purchase Order: (i) if Customer is not
Creditworthy; or (ii) if Customer has materially breached any of its material obligations under
this Agreement, but only until such time as the material breach has been cured. In the event that
Seller places any Purchase Order(s) on hold, delays shipment, suspends performance and/or rejects
a Purchase Order due to insufficient Creditworthiness, or due to Customers uncured material
breach of this Agreement, the Parties promptly shall meet in an effort to resolve the matter, and
the delivery and performance schedules under this Agreement shall be extended by the period of
time required for Customer and Seller to mutually resolve the insufficient Creditworthiness or
material breach. Notwithstanding the foregoing, if the Parties have not agreed on the resolution
of any such matter within thirty (30) calendar days after Seller places a Purchase Order on hold,
delays shipment, suspends performance and/or rejects a Purchase
Order. Customer may, in addition
to any other remedies available to it under this Agreement (i) cure all such material breaches of
this Agreement, shall pay in full for all Products, Licensed Materials or Services ordered but not
yet paid, and shall continue to pay in full for all Products, Licensed Materials and Services at
the time of placing each subsequent Purchase Order, or (ii) ***.
After Customers auditors complete their audit of Customers 2004 financial statements, Customer
shall submit to Seller upon request: (i) no later than 150 days after fiscal year end, Customers
audited annual consolidated financial statements and their respective consolidated balance sheets
and statements of operations, stockholders equity and cash flows for the fiscal year then ended
prepared in accordance with GAAP by an independent accounting firm; and (ii) no later than 45 days
after the end of each fiscal quarter, Customers consolidated financial
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
statements for each of the first three fiscal quarters of the fiscal year and their
respective consolidated balance sheets and statements of operations, stockholders equity and cash
flow for the fiscal quarter then ended prepared in accordance with GAAP.
(c)
Purchase Order Communications.
Notwithstanding communications and notices addresses as
set forth in
Section 1.22
, the Parties will route all communications relating to Purchase Orders
as follows:
To Seller:
Lucent Technologies Inc.
***
Sales Support Order Entry
82N160
800 North Point Parkway
Alpharetta, GA 30005
***
***
***
Lucent Technologies Inc.
***
Regional Sales Director, Major Accounts
***
***
***
To
Customer:
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Senior Vice President and Chief Financial Officer
***
1.7
CUSTOMER-INITIATED CHANGES
(a)
General.
Customer has the right to request expansions, other revisions and/or
modifications to any Purchase Order
(Customer Changes),
including but not limited to, the
Specifications, the manner of performance of the Services to be performed or the timing of the
completion of Services to be provided under the Purchase Order. All Customer Changes shall be
subject to the prior written consent of Seller, such consent not to be unreasonably withheld,
conditioned or delayed. All Customer Changes shall be documented in a written change order in a
form substantially similar to the form set forth in
Attachment F
(Change Order)
and will be
subject to the procedures set forth in
Attachment F.
Seller shall promptly notify Customer of any
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
such requested Customer Changes which may materially affect the operation and/or
maintenance of any PCS System or any part thereof.
(b) Disputes.
If the Parties cannot agree on a Change Order within fifteen (15) days
following Customers submission of a Customer Change to Seller, the matter shall then be referred
to dispute resolution pursuant to
Section 1.35.
1.8 SELLER-INITIATED CHANGES
(a) General.
Seller has the right to request revisions and/or modifications to any Purchase
Order
(Seller Changes),
including but not
limited to, the Specifications, the manner of
performance of the Services to be performed or the timing of the completion of the Services to be
provided under the Purchase Order, if Customer has not performed its obligations under this
Agreement beyond any applicable grace periods. All Seller Changes shall be subject to the prior
written consent of Customer, such consent not to be unreasonably withheld, conditioned or delayed.
All Seller Changes shall be documented in a Change Order and will be subject to the procedures set
forth in
Attachment F.
Seller shall promptly notify Customer of any such requested Seller
Changes which may materially affect the operation and/or maintenance of any PCS System or any part
thereof.
(b) Disputes.
If the Parties cannot agree on a Change Order within fifteen (15) days
following Sellers submission of a Seller Change to Customer, the matter shall then be referred to
dispute resolution pursuant to
Section 1.35.
1.9 PRICES
(a) General.
Prices, fees, and charges (hereinafter prices) shall be as set forth in
Sellers Customer Price Lists, firm price quotations, specific agreements, or other prices
submitted by Seller to Customer, as modified by and subject to the applicable terms of any
Attachment to this Agreement that includes pricing information including, without limitation,
Attachments
A, C
and
J.
The discounts and incentives referenced in
Attachments
A
and
C
will remain
in effect for the Term of the Agreement in accordance with the other terms and conditions thereof.
(b) Customer Price List Pricing.
In those cases where a price is to be determined from a
Customer Price List, the applicable Customer Price List shall be that Customer Price List which is
in effect on the Price Effective Date for the applicable Purchase Order, provided that the
Guaranteed Delivery Date for the deliverables referenced in such Purchase Order is scheduled to
occur within twelve (12) months of the Price Effective Date. If Customer submits a Purchase Order
and the requested Guaranteed Delivery Date exceeds such twelve (12) month period, and Seller has on
thirty (30) days prior written notice issued a revised Customer Price List to Customer prior to
such Guaranteed Delivery Date, Customer shall have the right to cancel such Purchase Order without
any penalty or liability or, at Customers request, the Parties will utilize the Change Order
process hereunder to determine reasonable adjustments to the Purchase Order including, without
limitation, prices payable by Customer under such Purchase Order.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
(c) Other Pricing.
In those cases where the price is not to be determined from a
Customer Price List, a firm price quotation, or specific agreement, the applicable price (before
applying the allowances available under this Agreement) will be Sellers price in effect on the
date of Sellers receipt of the Purchase Order. Seller may amend its prices prior to the Price
Effective Date, other than those subject to accepted Purchase Orders, firm price quotations or
other agreements between the Parties, on thirty (30) days prior written notice.
(d) ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
19
1.10 INVOICES AND TERMS OF PAYMENT
(a) Invoicing.
Fees
and charges for Products and Licensed Materials (including
domestic transportation charges and taxes, if applicable) will be billed by Seller when shipped, or
as soon thereafter as practicable. Services will be billed upon Sellers notice of Installation
Completion for installation Services and upon completion of any other non-recurring Services.
***. Customer shall pay invoiced amounts,
less any disputed amounts, within thirty (30) days following the date of Sellers invoice. Customer
shall have the right to pay any amounts due Seller hereunder using Electronic Funds Transfer
(
EFT
).
***. Payments which are undisputed and delinquent more than forty-five (45) days
after the invoice date are subject to a late payment charge at the rate of *** per
month, or portion thereof, of the undisputed amount due (but not to exceed the maximum lawful
rate); provided, however, that: (i) the accrual of any late payment charges provided in this
sentence shall not operate to waive or impede Customers right to dispute an invoice and/or payment
at any time; and (ii) irrespective of when an invoice and/or payment is disputed, Customer shall
not be liable for any late payment charges related to invoice disputes resolved in Customers
favor. Invoices must describe the Products and Licensed Materials provided and Services
performed, as applicable, and the amounts due and any applicable taxes and domestic transportation
charges. Customer promptly shall pay any disputed items which are determined to be valid payments
due to Seller pursuant to the dispute resolution process. Customer agrees to pay Sellers
reasonable attorneys fees and other reasonable costs incurred by Seller in collection of any
undisputed amounts invoiced hereunder.
(b) Payments to Subcontractors.
Seller will pay each Subcontractor the amount to which each
Subcontractor is entitled pursuant to such Subcontractors agreement with Seller, based on each
Subcontractors portion of any Services. By appropriate agreement in each Subcontractors
agreement with Seller, Seller will require such Subcontractor to make payments to
sub-Subcontractors and materialmen in a similar manner. Customer shall have no obligations to pay
any amount to which a Subcontractor may be entitled pursuant to its agreement with Seller
including, without limitation, any indemnity, damage or penalty. Customer has no duty or obligation
to ensure the payment of money to a Subcontractor, sub-Subcontractor, materialman or any other
third party, any such payment being the obligation of Seller, and, subject to the process
requirements set forth in
Sections
1.28(a)
(iii)
(A), (B)
and
(C)
, Seller shall indemnify, defend and
hold the Customer Indemnified Parties harmless from and against any such payment obligations, and
from and against any payment dispute between Seller and any such third party including, without
limitation, any dispute over Sellers failure to pay monies owed to any such third party. The
Parties hereby agree that Subcontractors, sub-Subcontractors, materialmen and
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
20
any other third parties will not be deemed third party beneficiaries of this Agreement,
including Customers obligations to pay Seller.
(c) Disputed Invoices.
If an invoiced amount is disputed in good faith by Customer
then, until resolution of the dispute occurs pursuant to
Section 1.35,
Customer may suspend
disputed payments and toll the running of time for default by paying the undisputed amount, if
any, and sending a written statement of exceptions to Seller. All of Sellers obligations
shall
continue unabated during the duration of the dispute resolution.
(d) Allocation of Payments.
Notwithstanding anything that may be contained herein
to the contrary, Seller shall allocate all payments made by Customer to Seller under this
Agreement to the satisfaction of those Purchase Orders identified by Customer with, or within
thirty (30) days following, any payment to Seller. If Customer fails to identify the
Purchase
Order(s) to be satisfied by any payment within such thirty (30) day period, Seller may
allocate
the payment to the satisfaction of the oldest Purchase Order(s) for which Customer has not
disputed its payment obligations.
1.11 DELIVERY AND INSTALLATION SCHEDULE
(a) Site Preparation.
Customer shall notify Seller when the PCS Site(s) for the
Products described in any Purchase Order are ready for installation and
Customers
responsibilities under
Article IV
relating to such Sites have been performed or furnished by
the
date mutually agreed to by the Parties. Such date shall be determined by the Parties prior
to
Purchase Order acceptance. Seller shall have access to such Sites on and after the date of
Sellers
receipt of such notification (the
Start
Date)
.
(b) Schedules.
The Parties agree to develop, by mutual agreement, delivery and
installation schedules (all consistent with the Standard Intervals, unless otherwise agreed to
by
the Parties) under which Customer and Seller shall complete their respective obligations as
required under this Agreement.
(c) Delivery Delays Initiated by Customer.
Upon written notice to Seller prior to
the shipment date, Customer shall have the right to suspend or reschedule Delivery of Products
and/or Licensed Materials not in excess of *** calendar days beyond the date
originally
scheduled for the Delivery thereof without additional payment or penalty to Seller of any kind
whatsoever. If any Customer-requested Delivery suspension continues for *** calendar
days beyond the originally scheduled Delivery Date for a Product and/or Licensed Materials.
Customer shall either: (i) cancel the Purchase Order, in which case the terms of
Section 1.18
shall apply; or (ii) authorize Seller to deliver the applicable Products and/or Licensed
Materials
to Customer.
(d) Sellers Delivery or Installation Delays.
If Customer reasonably determines that
Seller is likely to fail to meet a Standard Interval or other Delivery or installation
deadline
mutually agreed in writing, then in addition to any other rights and remedies that may be
available to Customer, at no additional cost to Customer and at Customers request, Seller
shall
provide to Customer all necessary additional Seller personnel to accelerate performance as may
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
21
be required or necessary to timely achieve the Delivery or installation deadline or, if
Seller has already failed to meet one (1) or more Delivery or installation deadlines, complete the
Delivery or installation deadline within a re-adjusted time frame
established by Customer. *** Notwithstanding any of the foregoing.
Seller shall not be obligated to provide additional personnel *** to Customer
as provided in this Section if and to the extent that Sellers failure to achieve a Delivery or
installation deadline is caused by Customers failure to perform any material obligation that is a
precondition to Sellers ability to timely achieve such Delivery or installation deadline,
provided that Seller previously communicated to Customer in writing: (i) Customers failure to
perform such material obligation; and (ii) the fact that such failure might impact Seller ability
to meet a Delivery or installation deadline.
1.12 TRANSPORTATION
(a) General.
Sellers prices for Products and Licensed Materials do not include
ordinary domestic freight charges or related domestic transportation services or charges
therefor, including hauling, hoisting and warehousing, unless expressly stated in writing by Seller to
the contrary. Seller, in accordance with its normal practices, will arrange for transportation
for such items, will prepay transportation, if appropriate, and invoice transportation charges. If
Customer elects to route Products and/or Licensed Materials or to arrange for transportation, Seller
will provide related Services subject to a separate fee.
(b) Premium Transportation.
Premium domestic transportation will only be used
only with Customers written concurrence. If premium transportation is used in order for
Seller to meet a Guaranteed Delivery Date, the difference between the cost of ordinary transportation
and premium transportation will be at Sellers sole cost and expense.
1.13 PACKING, MARKING AND SHIPPING
(a) General.
Seller shall, at no additional charge, pack and mark shipping containers in
accordance with its standard practices for domestic shipments. Where, in order to meet Customers
requests, Seller packs and/or is required to mark shipping cartons in accordance with Customers
specifications, Seller shall invoice Customer additional charges for such packing and/or marking.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
22
(b) Packing Memorandum; Marking.
Seller shall:
(i) Enclose a packing memorandum with each shipment and, if the shipment
contains more than one package, identify the package containing the memorandum; and
(ii) Mark Products as practicable for identification in accordance with Sellers
marking specifications (e.g., model/serial number and month and year of manufacture).
(c) Partial Shipments.
Partial shipments of Products and Licensed Materials ordered
under a Purchase Order may be made by Seller and separately invoiced, provided that the full
order is received by the Guaranteed Delivery Date specified in the accepted Purchase Order, and
provided further that the shipping costs to Customer shall not exceed the amount Customer
would have been required to pay for a single shipment.
1.14 TITLE AND RISK OF LOSS
(a) General.
Title to a Product, and risk of loss and damage to a Product, Licensed
Material, or other item furnished to Customer under this Agreement, shall pass from Seller to
Customer upon Delivery to the Customer-designated destination established in the Purchase
Order for the item. Delivery will be evidenced by signature of an employee, agent, Subcontractor
orrepresentative of Customer on a receipt or bill of lading. Customer shall not unreasonably
withhold, condition or delay Delivery or signature on such receipt or bill of lading. Customer
shall be responsible for any additional reasonable and necessary out-of-pocket expenses relating to
Customers unreasonably withholding, conditioning or delaying Delivery or signature on the
receipt or bill of lading. Seller shall at all times remain responsible for damage or loss
to Products and/or Licensed Materials caused by the employees, agents and/or representatives of
Seller and/or its Subcontractors. Unless otherwise specified in a written quotation,
Purchase Order or Attachment to this Agreement, and except with respect to Repair Parts and Products
used to effect a repair or replacement, Seller represents and warrants to Customer that the
Products and any components thereof are and shall be entirely new and free and clear of all liens, claims
and encumbrances. Seller retains title to all Licensed Materials and all copies thereof.
Seller represents and warrants to Customer that all Repair Parts are new, remanufactured,
reconditioned,refurbished, or functionally equivalent and operate in accordance with the Specifications of
the related parts and/or Products.
(b) Claims.
Customer shall notify Seller promptly of any claim with respect to a loss
which occurs while Seller has the risk of loss and Seller shall notify Customer promptly of
any claim with respect to a loss which occurs while Customer has the risk of loss. Both Parties
shall cooperate in every reasonable way to facilitate the settlement of any claim. Nothing herein
shall,during the period Seller has the risk of loss to an item, relieve Customer of responsibility
for loss to the item resulting from the negligence of the employees, agents and/or representatives of
Customer.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
23
1.15 COMPLIANCE WITH LAWS
The Parties shall comply with all Applicable Laws. Furthermore, except as specifically
provided in this Agreement, each Party shall obtain and maintain, at its own expense, all
Applicable Permits and pay all associated fees and expenses. Seller shall be responsible for
ensuring that its Subcontractors, if any, comply with all Applicable Laws, and obtain and maintain
all Applicable Permits.
1.16 TAXES
(a) General.
Customer shall be liable for, and shall reimburse Seller for, all taxes and
related charges, however designated, (excluding taxes on Sellers net income) imposed upon or
arising from Sellers provision of Services, or the transfer, sale, license, or use of
Products, Licensed Materials, or other items provided by Seller pursuant to Purchase Orders submitted by
Customer. Taxes reimbursable under this paragraph shall be separately listed on the invoice.
If Customer pays any taxes for which Seller is either reimbursed or receives a credit from the
applicable taxing authority, then Seller shall reimburse Customer an amount equal to such
credit or reimbursement within five (5) Business Days following receipt of such reimbursement or credit.
(b) Exemptions.
Seller shall not collect otherwise applicable taxes if the front of any
Purchase Order indicates that the purchase is exempt from Sellers collection of such taxes
and a
valid tax exemption certificate is furnished by Customer to Seller.
(c) Protested Taxes.
Seller shall promptly notify Customer in writing of: (i) any
Tax Assessment by a state or local taxing authority; and (ii) any decision with respect to a
Tax Assessment which has been appealed or protested; provided, however, that Seller shall in all
instances give Customer notice of such event no later than ten (10) days prior to the date by
which a response, protest, contest, or other appeal of such Tax Assessment must be filed. In
the first instance, Seller shall have the exclusive right to contest any Tax Assessment at its own
expense. In the event that all or any portion of a Tax Assessment must be paid in order to
contest the imposition of any such Tax Assessment in connection with a contest that Seller
elects
to pursue, or to avoid the existence of a lien on the assets of Seller during the pendency of
such
contest, Seller shall be responsible for such payment and shall be entitled to the benefit of
any
refund or recovery. Customer shall pay all valid final and non-appealable Tax Assessments (or
reimburse Seller in the event Seller pays any or all valid final and non-appealable Tax
Assessments) upon presentation by Seller of proof of a valid final and non-appealable Tax
Assessment. A
valid final and non-appealable Tax Assessment
shall mean one that is issued
by a state or local taxing authority in accordance with the applicable law and which is not
subject
to any further administrative or judicial review and all times for appeal, reconsideration, or
requests for reassessment have run without an appeal, reconsideration, or request
for
reassessment having been taken. In the event Seller elects not to contest a Tax Assessment,
Seller must either: (iii) waive its right to reimbursement from Customer for that Tax
Assessment
in which event Customer shall have no right to contest the Tax Assessment and Customer shall
have no liability for such Tax Assessment; or (iv) promptly notify Customer that it is: (A)
not responding, protesting, contesting, or appealing the Tax Assessment: and (B)
seeking
reimbursement for the Tax Assessment as if it were a valid final and non-appealable Tax
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
24
Assessment which notice shall set forth the legal and/or factual basis for not
contesting the Tax Assessment along with a copy of the Tax Assessment; provided, however, that
Seller shall in all instances give Customer notice of such decision to not protest, contest or
appeal such Tax Assessment no later than ten (10) days prior to the date by which a response,
contest, protest or other appeal of such Tax Assessment must be filed; provided, further, that
Seller may not elect option (iv) (e.g., to notify Customer and not protest, contest, or appeal a
Tax Assessment) unless Seller has a good faith belief that there is no reasonable basis in law or
fact for a contest, protest, or appeal of such Tax Assessment; provided, finally, that in the
event that Seller elects option (iv) and fails to notify Customer in time to allow Customer to
file a response, protest, or contest, Seller shall be deemed to have waived its right to seek
reimbursement from Customer for that Tax Assessment. In the instance Seller notifies Customer that
it is not contesting the Tax Assessment, Customer may elect, at it sole discretion, to pursue the
contest of the Tax Assessment in good faith, at its own expense, or to pay to Seller the Tax
Assessment. In the event Customer elects to contest a Tax Assessment and, further, in the event
that all or a portion of a Tax Assessment must be paid in order to contest the imposition of any
such Tax Assessment or to avoid the existence of a lien on the assets of Seller during the
pendency of such contest, Customer shall be responsible for such payment. In the event that any
such contest must be pursued in the name of Seller, Seller shall permit Customer to pursue and
control the contest in the name of Seller, and Seller shall have the opportunity to participate
fully in the preparation of such contest at its own expense. In any contest of a Tax Assessment,
the Party bringing the protest shall promptly furnish the other Party with notice of the pending
proceeding, copies of all filings in any proceeding, protest, contest, or legal challenge, all
rulings issued in connection therewith, all correspondence between such Party and the state or
local taxing authority, the final resolution thereof, and any action therein that would affect
Sellers obligation to collect and remit, and the Party bringing the contest shall allow the other
Party to participate in such contest with its own counsel at its own expense.
1.17 TRAINING
Seller will make available Sellers standard training for Customers personnel in the planning
for, operation and maintenance of Products and Software furnished hereunder in accordance with the
terms set forth in
Attachment B.
1.18 TERMINATION OF ORDERS FOR CONVENIENCE
Customer may, upon written notice to Seller, terminate any Seller-accepted Purchase Order or
portion thereof, except with respect to Products or Licensed Materials that have already been
shipped and Services that have already been performed.
Upon any such termination or cancellation, for those Products not shipped but considered stock
items, Customer agrees that it will pay Seller a cancellation fee
equal to *** of the
price or license fee for such items (determined as of the Price
Effective Date). ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
25
For those Products and Licensed Materials not shipped and considered customized or
non-stock items, Customer agrees to pay a cancellation fee based upon Sellers engineering fees,
reasonably incurred out-of-pocket expenses (after adjustment for recoveries and/or salvage value,
if any) plus *** but in no case more than ***, unless otherwise
agreed to by Customer and Seller.
1.19 TERMINATION FOR BREACH
(a)
Customer Events of Default.
Seller shall have the right to terminate this
Agreement in its entirety and/or terminate affected Purchase Orders only without any penalty
or payment obligation (subject to
subsections 1.
19(c)
and 1.
19(f)
below) upon the occurrence and
during the continuance of any of the following events, each of which shall constitute a
material
breach of this Agreement by Customer (each, a
Customer
Event of Default):
(i) Customer: (A) files a voluntary petition in bankruptcy or has an involuntary
petition in bankruptcy filed against it that is not dismissed within sixty (60) days of
such involuntary filing, (B) admits the material allegations of any petition in bankruptcy
filed against it, (C) is adjudged bankrupt, (D) is unable generally to pay its debts as
they mature, (E) makes a general assignment for the benefit of its creditors, or has a
receiver appointed for all or a substantial portion of its assets that is not discharged
within sixty (60) days after such appointment, or (F) commences any proceeding for relief
from its creditors in any court under any state insolvency statutes; or
(ii) Customer assigns performance of its obligations other than as permitted under
this Agreement; or
(iii) Customer fails to timely pay any undisputed amount owed to Seller, provided
that such failure is not cured within thirty (30) calendar days following Customers
receipt of written notice from Seller requiring it to do so; or
(iv) Customer materially breaches any other obligation under this Agreement, provided
that such material breach is not cured, or if the material breach is incurable,
substantial progress toward a cure has not been made, within thirty (30) calendar days
following Customers receipt of written notice from Seller requiring it to do so.
(b)
Seller Events of Default.
Customer shall have the right to terminate this
Agreement in its entirety and/or terminate affected Purchase Orders only without any penalty
or
payment obligation (subject to
subsections 1.
19(c)
and 1.
19(f)
below) upon the occurrence and
during the continuance of any of the following events, each of which shall constitute a
material
breach of this Agreement by Seller (each, a
Seller Event
of Default) :
(i) Seller, upon written notification and a period of thirty (30) days, fails to
fulfill its obligations with respect to the satisfaction, discharge or bonding of liens as
set forth herein; or
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
26
(ii) Seller misses a Guaranteed Delivery Date as specified in an accepted
Purchase Order by more than *** beyond the Standard Interval for any Products or
Licensed Materials; provided that such failure to achieve such date was not caused by: (a) a
Force Majeure event; and/or (b) Customers failure to perform any material obligation that was
a pre-condition to Sellers ability to timely achieve such Guaranteed Delivery Date, in which
event, Seller will be entitled to an extension of the Guaranteed Delivery Date equal to the
period of Customers delay plus, pursuant to Section 4.6 hereof, a commercially reasonable time
thereafter; or
(iii) Seller materially breaches any service, support or maintenance services obligation,
provided that such material breach is not cured within thirty (30) calendar days (or any longer
cure period that may be set forth in a specific Section of this Agreement, as applicable)
following Sellers receipt of written notice from Customer
requiring it to do so; or
(iv) Seller materially breaches any representation or warranty set forth in this
Agreement, provided that such material breach is not cured within thirty (30) calendar days (or
any longer cure period that may be set forth in a specific Section of this Agreement, as
applicable) following Sellers receipt of written notice from Customer requiring it to do so;
or
(v) Seller fails to maintain insurance coverage as specified in
Section 1.41,
provided
that such failure is not cured within thirty (30) calendar days following Sellers receipt of
written notice from Customer requiring it to do so; or
(vi) Seller: (A) files a voluntary petition in bankruptcy or has an involuntary petition
in bankruptcy filed against it that is not dismissed within sixty (60) days of such involuntary
filing, (B) admits the material allegations of any petition in bankruptcy filed against it, (C)
is adjudged bankrupt, (D) is unable generally to pay its debts as they mature, (E) makes a
general assignment for the benefit of its creditors, or has a receiver appointed for all or a
substantial portion of its assets that is not discharged within sixty (60) days after such
appointment, or (F) commences any proceeding for relief from its creditors in any court under
any state insolvency statutes; or
(vii) Seller disregards or violates any Applicable Laws or Applicable Permits which have a
material adverse effect on the business, financial condition or operations of Customer; or
(viii) Seller assigns performance of its obligations other than as permitted under this
Agreement; or
(ix) Seller materially breaches any other obligation under this Agreement, provided that
such material breach is not cured, or if the material breach is incurable, substantial progress
toward a cure has not been made, within thirty (30) calendar days following Sellers receipt of
written notice from Customer requiring it to do so.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
27
(c) Effect of Termination.
If either Party terminates this Agreement and/or
affected
Purchase Orders, both Parties will be responsible for performing their respective obligations
under
this Agreement up through the date of termination (and thereafter to the extent this Agreement
and/or non-terminated Purchase Orders remain in effect following such termination). In any
event,
Sellers obligations hereunder with respect to Products already delivered, installed and not
returned,
and Customers obligations with respect to payments for Products not returned, shall continue
in full force and effect.
(d) Sellers Remedies.
Without limiting any other rights and remedies that may then
be available to Seller, upon the occurrence of a Customer Event of Default, subject to
Customers rights under
Section 1.
19(f)
,
Seller shall be entitled to:
(i) Subject to the terms of
Section
1.25
, seek to recover damages from Customer;
and/or
(ii) If
applicable, seek to obtain the additional rights and remedies set forth in
Section 1.
19(g)
;
and/or
(iii) If permitted under
Section
3.9.
terminate affected Software licenses.
***
(e) Customers Remedies.
Without limiting any other rights and remedies that may
then be available to Customer, upon the occurrence of a Seller Event of Default, Customer
shall be
entitled to:
(i)
Subject to the terms of
Section 1.25
, seek to recover damages from Seller; and/or
(ii) Receive a full refund of all amounts paid to Seller with respect to terminated
Purchase Orders, which refund shall be paid by Seller to Customer within fourteen (14)
calendar days following Sellers receipt of Customers demand for such refund; and/or
(iii) Receive a full refund of all pre-paid but unearned amounts paid to Seller (such
as, by way of example and not of limitation, pre-paid support or maintenance fees), which
refund shall be paid by Seller to Customer within fourteen (14) calendar days following
Sellers receipt of Customers demand for such refund; and/or
(iv) If applicable, obtain the additional remedies described in
Section 1.
19(f)
;
and/or
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
28
(v) If applicable, seek to obtain the additional rights and remedies
set forth in
Section 1.
19(g)
.
(f) Transition.
Upon a complete or partial termination of this Agreement and/or a
Purchase Order for any reason, provided such termination results in the termination of
Customers right to use Products or Licensed Materials acquired hereunder or thereunder as
provided in
Section 3.9,
Customer shall have the option, for up to *** (the
Transition
Period
),
to continue to use the applicable Product or Licensed Materials, or any
portion thereof, for the purposes set forth herein and upon the terms and conditions set forth
herein, ***. During such Transition Period, Seller shall make available to Customer (subject to
a
written agreement) all support and maintenance services and all other Services necessary for
an
orderly transition of the Product or Licensed Materials. If this Agreement and/or a Purchase
Order is completely or partially terminated, the Services provided by Seller during the
Transition
Period shall be provided at the prices and on the terms and conditions then in effect on the
termination date except that Customer shall be relieved of any exclusivity commitment.
(g) Remedies Cumulative.
Unless this Agreement expressly provides that a remedy is
the sole and exclusive remedy, the rights and remedies herein provided shall be cumulative
and
not exclusive of any rights or remedies that may be available at law or in equity.
(h) Equitable Relief.
Notwithstanding anything contained in this Agreement to the contrary,
the Parties shall be entitled to seek injunctive or other equitable relief whenever the facts or
circumstances would permit a Party to seek such equitable relief in a court of competent
jurisdiction.
1.20 PATENTS, TRADEMARKS AND COPYRIGHTS
(a) Infringement
Claims.
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
29
***
(b) Injunctions.
If use of any Products and/or Licensed Materials by
Customer and/or its Affiliates is enjoined or in Sellers opinion is likely to be enjoined or
subject
to an Infringement Claim, Seller, at its expense and at Sellers option (following
consultation
with Customer), will either: ***.
(c) Notice and Cooperation.
Customer shall give Seller prompt notice of all
Infringement Claims, and Seller shall have full and, subject to the restrictions set forth in
subsection
(a)
above, complete authority to assume the sole defense of them, including
appeals,
and to settle them. Customer shall, upon Sellers request and at Sellers expense, furnish
all
information and assistance reasonably available to Customer and cooperate in every reasonable
way to facilitate the defense and settlement of any Infringement Claim.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
30
(d) Exclusions.
Seller shall not be responsible or liable for any
Infringement Claim
to the extent that it: (i) arises from adherence to design modifications, specifications,
drawings,
or written instructions which Seller is directed by Customer to
follow; or (ii) arises from
adherence to instructions to apply Customers trademark, trade name or other company
identification; or (iii) resides in a product or licensed materials which are not of Sellers
origin
and which are furnished by Customer to Seller for use under this Agreement; (iv) relates to a
modification made by Customer of any Product or Licensed Materials not authorized, permitted
or directed by Seller; or (v) relates to uses of any Product or Licensed Materials provided by
Seller in combination with any other item not furnished, recommended in writing or otherwise
approved in writing directly by Seller, or (vi) relates to Customer Indemnified Partys
continued
infringement after (a) Seller has notified Customer in writing that a Product or Licensed
Material
or service may infringe the intellectual property rights of a Third Party, (b) Seller has
agreed to
indemnify Customer for any such infringement, (c) Seller has provided to Customer the remedies
set forth in paragraph (b) of this Section, and (d) Customer Indemnified Party has failed to
implement or allow Seller to implement the remedies provided in
subsection
1.20(b)
. In the
foregoing cases numbered (i) through (vi), Customer will indemnify, defend and save Seller
harmless, subject to the same terms and conditions and exceptions stated above with respect to
Sellers rights and obligations under this Section.
(e) Remedies.
The liability of Seller and Customer with respect to any and all
claims, actions, proceedings or suits by third parties alleging infringement of patents,
trademarks
or copyrights or violation of trade secrets or proprietary rights because of, or in connection
with,
any Products or Licensed Materials furnished under this Agreement, shall be limited to the
specific undertakings in this Section.
1.21 USE OF INFORMATION
(a) Use and Disclosure Restrictions.
All Information including, without limitation.
Information which bears a legend or notice restricting its use, copying or dissemination, shall
remain the property of the furnishing Party. Such Information shall: (i) not be reproduced or
copied, in whole or part, except for use as authorized in this Agreement; and (ii) together with
any full or partial copies thereof, be returned or destroyed when no longer needed. Moreover, when
Seller is the receiving Party, Seller shall use such Information only for the purpose of performing
under this Agreement, and when Customer is the receiving Party, Customer shall use such Information
only: (iii) to order Products, Licensed Materials and/or Services; (iv) to evaluate Products,
Licensed Materials and/or Services; and (v) to install, operate, and maintain the particular
Products or Software for which it was originally furnished. The foregoing use restrictions set
forth in this
Section 1.21
shall not apply to Information that: (vi) is or hereafter becomes,
through no act or failure to act on the receiving Partys part, generally known in the relevant
industry; or (vii) is furnished to the receiving Party by a third party as a matter of right
without restriction on disclosure; or (viii) is independently developed by the receiving Party or a
third party without use of or reference to the disclosing Partys Information. Unless the
furnishing Party consents in writing, such Information, except for that part, if any, which is
known to the receiving Party by way
of subsections (vi)
through
(viii)
above, shall be held in
confidence by the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
31
receiving Party using the same degree of care as such Party uses for its
own Information of similar importance, but in no event using less than reasonable
care. The receiving Party may disclose the furnishing Partys Information as provided
in
subsection (c)
below. ***.
(b) Survival.
The provisions of this
Section 1.21
shall survive the expiration or
termination of this Agreement for a period of ***. Each Party agrees and
acknowledges
that money damages would not be sufficient to remedy any breach of
this
Section 1.21,
and that
the aggrieved Party shall be entitled to seek specific performance and injunctive
relief as remedies
for such breach or any threatened breach of this Section. Such remedies shall not be deemed the
exclusive remedies for a breach of this
Section 1.21
by a Party but shall be in
addition to all remedies available at law or in equity to such Party, including
recovery of damages from the breaching Party. For purposes of this Section, the term
Party shall also include Affiliates of the Party.
(c) Permitted Disclosures.
A Party shall be entitled to disclose the terms and
conditions of this Agreement and any Information acquired by it under or pursuant to
this
Agreement without the prior consent of another Party to the following Persons;
provided that, to
the extent the disclosure will be made to any third party, such third party must be
bound by obligations of confidentiality that are substantially similar to the obligations set
forth in this
Section 1.21:
(i) to any Affiliate (in the case of Seller), or to any Authorized User (in
the case of Customer) of such Party, and to the investors, directors, officers,
employees, financial advisors, attorneys, contractors, agents and
representatives of such Party and its Affiliates who have a legitimate need to
see such Information;
(ii) to any outside consultants or advisers engaged by or on behalf of such
Party in connection with the construction, financing, operation or transfer of
the PCS Systems, and acting in that capacity, provided that such consultants or
advisers are not engaged in a business substantially similar to the primary
business of the furnishing Party;
(iii) to its existing or potential lenders, and to any potential assignees,
potential purchasers of, or potential investors in, such Party;
(iv) to the extent required by law or regulation (including, without
limitation, by the Securities and Exchange Commission and/or any stock exchange)
or pursuant to an order of any court of competent jurisdiction, provided that,
in the case of a court order or request from a regulatory agency, the receiving
Party promptly shall inform the furnishing Party prior to such disclosure (if
possible under the circumstances) to enable the furnishing Party to seek a
protective order or other adequate assurance that this Agreement and any data or
information (including Information) will be withheld from the public record or,
to
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
32
the extent the furnishing Party does not have standing to object to the
disclosure, the receiving Party will take all reasonably necessary actions, at the
furnishing Partys written request and expense, to seek such a protective order or other
such adequate assurances, or a redaction of highly sensitive Information; or
(v) to any insurer under a policy of insurance purchased by a Party in connection
with, in whole or in part, its obligations under this Agreement.
1.22
NOTICES
Except as otherwise set forth herein, all notices required or permitted to be given under this
Agreement shall be in writing and shall be addressed to the addresses set forth below or to such
other address as either Party may designate by notice pursuant hereto and shall be: (a) delivered
personally; (b) sent by certified mail (return receipt requested); (c) sent by a recognized
overnight mail or courier service with delivery receipt required; or (d) sent by confirmed
facsimile transfer. Such notices shall be deemed to have been given when received at the addresses
set forth below.
|
|
|
|
|
|
|
|
|
To Seller:
|
|
Lucent Technologies Inc.
2400 Dallas Parkway, Suite 505
Plano, Texas 75093
***
***
|
|
|
|
|
|
|
|
|
|
|
|
Copy To:
|
|
Lucent Technologies Inc.
67 Whippany Road, 15C-413
Whippany, New Jersey 07981
***
***
|
|
|
|
|
|
|
|
|
|
|
|
To Customer:
|
|
MetroPCS, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Chief
Technical Officer
***
|
|
|
|
|
|
|
|
|
|
|
|
Copy To:
|
|
MetroPCS, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Legal
Department
***
|
|
|
1.23 RIGHT OF ACCESS
(a) General.
Each Party shall provide the other access to its facilities as reasonably
required in connection with the performance of the respective obligations under this Agreement. No
charge shall be made for such access. Reasonable prior notification will be given when access
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
33
is required. Seller shall coordinate any access with Customers designated
representative prior to visiting any Site. Customer shall obtain for Sellers and its
Subcontractors employees any necessary identification and clearance credentials to enable Seller
and its Subcontractors to have access to the Site. Upon receipt of Site rules from Customer,
Seller agrees to cause its employees and Subcontractors to comply with all Site rules while on
Customers Site. The employees and Subcontractors of Seller shall, while on Customers premises,
comply with all Site rules and guidelines including, but not limited to, Applicable Laws. Neither
Party shall require waivers or releases of any personal rights in connection with visits to its
premises, and no such releases or waivers shall be pleaded by either Party in any action or
proceeding.
(b) Site Rules.
To the extent that Customer does not own a Site, upon receipt of the
Site rules from Customer, Sellers obligations to adhere to Site rules and guidelines shall
include,
without limitation, those rules and guidelines required by Customer, its Affiliates, a
Designated
Entity and/or any landlord and/or the property manager having care and control of such Site.
(c) No Interference.
Seller shall install all Products and perform the Services so as to
cause no unauthorized interference with, or obstruction of, lands and thoroughfares or rights
of
way on or near which the installation work is to be performed. Seller shall exercise every
reasonable safeguard to avoid damaging existing facilities, and if repairs or new construction
are
required in order to replace facilities damaged by Seller, such repairs or new construction
shall be
at Sellers sole cost and expense, ***. Seller understands
that
many of the Sites may be co-located with other RF transmission facilities, and Seller shall
take all
necessary precautions and safety measures to ensure the safety of all of the personnel of
Seller and
its Subcontractors at such Sites. Customer shall use its reasonable best efforts to ensure
that no
other third parties employed or engaged by Customer hinder or delay Seller in the performance
of its obligations hereunder, including the provision of Services.
1.24 INDEPENDENT CONTRACTOR
All work performed by a Party under this Agreement shall be performed as an independent contractor
and not as an agent of the other, and no personnel furnished by the performing Party shall be
considered the employees or agents of the other. The performing Party shall be responsible for its
employees and contractors compliance with all Applicable Laws while performing work under this
Agreement.
1.25 LIMITATIONS ON REMEDIES
(a)
Cap on Direct Damages.
Except for
claims arising out of or relating to: ***, in no event shall the aggregate, cumulative liability
of a Party and its Affiliates to the other Party and its Affiliates for any and all claims, losses,
damages, and expenses arising out of or relating to this Agreement,
exceed ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
34
***.
(b) Disclaimer of Non-Direct Damages.
EXCEPT FOR CLAIMS ARISING OUT
OF OR RELATING TO *** NEITHER PARTY NOR ITS AFFILIATES AND/OR
ITS RESPECTIVE EMPLOYEES AND AGENTS, SHALL BE LIABLE FOR INCIDENTAL,
INDIRECT, SPECIAL AND/OR CONSEQUENTIAL DAMAGE OR LOST PROFITS,
REVENUES OR SAVINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE USE OR PERFORMANCE OF ANY PRODUCT OR LICENSED MATERIALS,
WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, OR STRICT LIABILITY. THIS
SECTION 1.
25(b)
SHALL
SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
(c) Notice of Claims.
Each Party shall endeavor to give the other Party prompt notice
of any claim. Any action or proceeding by one Party against the other Party must be brought
within the appropriate limitations period prescribed by Applicable Law.
1.26 FORCE MAJEURE
(a) General.
Except with respect to Customers obligation to make timely payments
under this Agreement, neither Party shall be held responsible for any delay or failure of
performance to the extent that such delay or failure is caused by a Force Majeure, but only
if, and
to the extent:
(i) such circumstance is not within the reasonable control of the Party affected; and
(ii) such circumstance, despite the exercise of reasonable, diligent efforts and
pursuit of reasonable, alternative measures, cannot be prevented, avoided or removed by
such Party; and
(iii) such event materially adversely affects (in cost and/or time) the ability of the
affected Party to fulfill its obligations tinder this Agreement.
(b) Obligations Upon Occurrence of Force Majeure.
The Party claiming the benefit
of excusable delay hereunder shall: (i) promptly notify the other Party of the circumstances
creating the failure or delay and provide a statement of the impact on such Party of the Force
Majeure event; and (ii) use all reasonable efforts to avoid or remove the effects of the Force
Majeure event. If a Force Majeure event prevents Seller from performing its obligations under
this
Agreement for a period exceeding thirty (30) days, upon written notice to Seller, Customer
shall
have the right to cancel without penalty or further obligation to Seller any affected Purchase
Orders
and/or contract with another supplier for any products, licensed materials and services that
Seller is
unable to provide or perform pursuant to such Purchase Orders, regardless of any exclusivity
provision, if any, that may be contained in this Agreement. If an event of Force Majeure
prevents
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
35
Seller from performing its obligations under this Agreement for a period exceeding
***, Customer may, upon prior written notice to Seller, terminate this Agreement.
(c)
Change Orders.
Subject to Customers rights under
Section 1.
26(b)
,
which shall prevail
over any contrary terms in this
subsection (c),
upon the occurrence of a Force Majeure event from
which the affected Party has used all best efforts to recover, at the written request of the
affected Party in accordance with
Sections 1.7
or
1.8,
as applicable, the other Party shall in
good faith negotiate a Change Order, to the extent reasonable and necessary, to address scheduling
and other performance issues impacted by such Force Majeure event.
1.27 ASSIGNMENT
(a) General.
Except as provided in this Section, neither Party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any Services or other
obligation to be performed under this Agreement (each, an
Assignment
)
without the other
Partys prior written consent, which consent shall not be unreasonably withheld, conditioned
or
delayed. At the non-assigning Partys option, any attempted Assignment in contravention of
this
Agreement shall be void and ineffective.
(b) Customers Assignments.
Upon: (i) Sellers acceptance of any Assignment by
Customer pursuant to this
Section 1.27
, where such acceptance is required; and (ii) the
assignees
assumption of all of Customers duties under this Agreement (including, without limitation,
indemnities, warranties and other obligations) as evidenced in a writing in form and substance
reasonably satisfactory to Seller; and (iii) the payment in full of all undisputed amounts due
and
owing by Customer under this Agreement at the time of Assignment, Customer shall be released
and discharged, to the extent of the Assignment and full performance prior to assignment of
all
obligations not assigned to Customers assignee, from all further duties and
obligations
hereunder.
(c) Sellers Assignments.
Upon: (i) Customers acceptance of any Assignment by
Seller pursuant to this
Section 1.27,
where such acceptance is required; and (ii) the
assignees
assumption of all of Sellers duties (including, without limitation, those duties for which
Seller
has been paid directly) under this Agreement (including, without limitation, indemnities,
warranties and other obligations) as evidenced in a writing in form and substance reasonably
satisfactory to Customer; and (iii) the payment in full of all undisputed amounts (including,
without limitation, applicable credits) due and owing by Seller under this Agreement at the
time
of Assignment. Seller shall be released and discharged, to the extent of the Assignment and
full
performance prior to assignment of all obligations not assigned to Sellers assignee, from all
further duties and obligations hereunder.
(d) Customers Collateral Assignment.
Without Sellers consent, Customer shall
have the right to collaterally assign its rights hereunder for security purposes (including,
without
limitation, all licenses with respect to the Licensed Materials) to any or all lenders
providing
financing for any part of a PCS System, provided that such assignment does not amend or
modify any of Customers obligations hereunder or any of Sellers rights or obligations under
this
Agreement.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
36
(e) Assignment to Affiliates.
Notwithstanding the foregoing, each Party shall
have
the right to assign this Agreement and to assign its rights and delegate its duties under this
Agreement, in whole or in part, at any time and without the other Partys prior written
consent, to
any present or future Affiliate of the assigning Party, provided such assignee entity has
sufficient
resources and capitalization in the non-assigning Partys reasonable opinion to undertake the
assigning Partys obligations contained in this Agreement. The assigning Party under this
Section shall give the non-assigning Party prompt written notice of the Assignment. For
purposes of this Section, the term Agreement includes this Agreement, any subordinate
agreement placed under this Agreement and any Purchase Order placed under this Agreement or
subordinate agreement.
(f) Assignment in Connection with Sale of Business.
Notwithstanding the
foregoing and subject to the conditions of this paragraph, each Party shall have the right to
assign
this Agreement, including all of its rights and obligations under this Agreement, at any time
and
without the other Partys prior written consent, to a successor in interest in connection with
that
Partys sale of all, or substantially all, of its assets or stock or in connection with a
merger,
consolidation or change of control. As conditions to the preceding sentence: (i) the
assigning
Party under this Section shall give the non-assigning Party prompt written notice in advance
of
the Assignment; (ii) the assignee shall execute an assumption of the assigning Partys duties
under this Agreement (including, without limitation, indemnities, warranties
and other
obligations) as evidenced in a writing in form and substance reasonably satisfactory to the
non-assigning Party; and (iii) the assignee shall not be engaged in a business substantially
similar to
the primary business of the non-assigning Party. For purposes of this Section, the term
Agreement includes this Agreement, any subordinate agreement placed under this Agreement
and any Purchase Order placed under this Agreement or subordinate agreement.
(g) Assignment of Third Party Software.
Notwithstanding anything in this
Section
1.27
to the contrary, Customer may not assign any rights or interest in any third party software
licensed by Seller to Customer under this Agreement to the extent that Seller is not able to
license such third party software to Customer with rights of assignment. Seller shall, to the
extent possible, license all third party software licensed by Seller to Customer under this
Agreement granting Customer rights of assignment. To the extent that Seller is not able to
license Customer any third party software minimally granting Customer the rights to assignment
set forth in
subsections (a)
through
(f)
, Seller shall clearly identify any limitations on
assignment
rights in the applicable Purchase Order or applicable Attachment to this Agreement.
1.28 GENERAL INDEMNITIES
(a) General
. Each Party (the
Indemnifying Party
)
shall indemnify, defend and hold harmless
the other Party and such other Partys Affiliates, and their respective directors, officers,
employees, agents, Subcontractors, representatives, successors and assigns (collectively for
purposes of this
Section 1.28
, the
Indemnified Party
), from and against any Liabilities
(including reasonable attorneys fees) incurred by the Indemnified Party because of a suit, claim
or demand of a third party or third parties for: ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
37
***
(b) Indemnity
Incorrectly Provided.
***
1.29 PUBLICITY
In accordance with
Attachment K
, each Party shall submit to the other Party a proposed copy of
all Advertising wherein the name, trademark or service mark of the other Party or its
Affiliates is mentioned, and neither Party shall publish or use such Advertising
without the others prior written approval, which approval shall be granted in
accordance with
Attachment K
.
1.30 APPLICABLE LAW
The laws of the State of Delaware (without regard to its conflicts of laws
principles to the extent they would refer to and/or apply the laws of another
jurisdiction) shall govern all matters arising out of or relating to this Agreement,
including, without limitation, its interpretation, construction, performance and
enforcement, and any and all of the Parties rights, remedies, liabilities, powers and
duties. Any Party bringing a legal action or proceeding against any other Party arising
out of or relating to this Agreement may (but shall not be required) bring the legal
action or proceeding in the United States District Court for the District of Delaware
or in any court of the State of
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
38
Delaware sitting in the city of Dover. Each Party submits to the nonexclusive
jurisdiction of the United States District Court for the District of Delaware and its appellate
courts, and any court of the State of Delaware sitting in Dover and its appellate courts, for the
purposes of legal actions and proceedings arising out of or relating to this Agreement.
1.31 SURVIVAL OF OBLIGATIONS
The Parties rights and obligations which, by their nature, reasonably should be assumed to
continue beyond the termination, cancellation, or expiration of this Agreement, including, without
limitation, those set forth in
Sections 1.1, 1.2(b), 1.10,1.16,
1.19, 1.20, 1.21, 1.25, 1.28,1.30,1.31, 1.32, 1.35, 1.36, 2.6, 2.9, 3.2, 3.3, 3.8, 3.9, 3.10, 4.7, 5.1
and 5.2,
shall survive such termination, cancellation, or expiration.
1.32 SEVERABILITY
If any provision in this Agreement shall be held to be invalid, illegal or unenforceable, the
remaining portions of this Agreement shall remain in full force and effect, if the essential terms
and conditions of this Agreement for both Parties remain valid, legal
and enforceable. *** In the event such invalid, illegal or unenforceable provision is considered an
essential element of this Agreement, the Parties promptly shall negotiate a replacement provision.
If the Parties are unable to agree to a replacement provision within thirty (30) days of the
essential elements being held invalid, illegal or unenforceable, either Party shall have the
option to terminate this Agreement upon written notice to the other Party provided that such
written notice is sent within thirty (30) days following the date that the Parties are unable to
agree to a replacement provision.
1.33 NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of either Party strictly
to enforce any such term or condition on one or more occasions, shall be construed as a waiver of
the same or of any other term or condition of this Agreement on any other occasion.
1.34 CUSTOMER RESPONSIBILITY
Customer shall, at no charge to Seller, provide Seller with such electrical and environmental
conditions, technical information, data, technical support, or assistance as may reasonably be
required by Seller to fulfill its obligations under this Agreement, any subordinate agreement, or
Purchase Order. If Customer fails to provide any Seller-identified required conditions,
information, data, support, or assistance within a reasonable period of time following Sellers
request, Seller shall be discharged from any affected obligations until Customer cures such
failure, but only if the effects of such Customer failure could not reasonably have been avoided by
Seller through the exercise of reasonable alternatives.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
39
1.35 DISPUTE RESOLUTION
Any claim, counterclaim, demand, cause of action, dispute, and controversy arising out of or
relating to this Agreement or the relationship established by this Agreement, any provision
hereof, the alleged breach thereof, or in any way relating to the subject matter of this
Agreement, involving the Parties and/or their respective representatives (collectively the
Claims
),
even though some or all of such Claims allegedly are extra-contractual in nature,
whether such Claims sound in contract, tort, or otherwise, at law or in equity, under state or
federal law, whether provided by statute or the common law, for damages or any other relief, shall
be resolved by binding arbitration. The arbitration proceeding shall be held in the City of
Dallas, State of Texas, USA, unless otherwise agreed to in writing by the Parties hereto, shall be
governed by the Federal Arbitration Act and shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association
(AAA)
.
In deciding the substance of
the Parties Claims, the arbitrators shall refer to the laws of the State of Delaware. Each Party
shall designate an arbitrator, who shall be impartial, within fifteen (15) days of receiving
notification of the filing with AAA of an arbitration demand. The two (2) designated arbitrators
jointly shall select a third, impartial arbitrator. If either Party fails to designate an
arbitrator within the fifteen (15) day period described above, that Partys arbitrator shall be
appointed by the AAA. The Parties agree that: (a) the arbitrators must be knowledgeable in
industry standards and practices and the matters giving rise to the dispute; (b) the arbitrators
shall not have the power and authority to award treble, exemplary or punitive damages of any type
under any circumstances whether or not such damages may be available under state or federal law,
or under the Commercial Arbitration Rules of the AAA, the Parties hereby waive their right, if
any, to recover such damages; (c) the authority of the arbitrators shall be limited to construing
and enforcing the terms and conditions of this Agreement as expressly set forth herein; and (d)
the arbitrators shall state the reasons for their award, and the legal and factual conclusions
underlying the award of the arbitrators shall be final, and judgment upon the award may be
confirmed and entered in any court, state or federal, having jurisdiction.
Nothing contained in this Section or elsewhere in this Agreement shall prevent a Party from
seeking injunctive or other equitable relief in a court of competent jurisdiction.
1.36 SECURITY INTEREST
Subject to the further terms of this Section, Customer hereby grants Seller a security
interest in the Products and Software sold and/or licensed by Seller to Customer under this
Agreement, and all proceeds of them in any form, to secure payment of amounts due from Customer
hereunder. The security interest in a specific item of Products or Software automatically shall
terminate and shall be deemed released upon full and final payment by Customer of the purchase
price or license fee, as applicable, for that specific item of Products or Software. Customer shall
provide such additional documentation as is reasonably necessary to establish or perfect this
security interest. If Customer forwards to Seller a written notice listing specific Products and
Software that have been fully and finally paid and requesting that such Products and Software be
released from Sellers Uniform Commercial Code (
U
CC
) financing statement filings, within ten (10)
calendar days after receipt of such request, Seller shall file an appropriate UCC-3 Amendment
(Collateral Change) setting forth as deleted a description of the Products and Software so
listed by Customer that have been fully and finally paid. If Seller fails to comply with the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
40
foregoing obligations to timely file any such UCC-3 form, Customer shall have the
right to take all necessary steps to effectuate an appropriate deletion of those Products and
Software from Sellers UCC financing statement filings (and Seller hereby appoints Customer as its
attorney in fact for the limited purpose of executing such UCC-3 forms and any other documents
that may be required to effectuate such deletion of collateral in the event that Seller does not
comply with its contractual obligations as set forth herein) ***.
Customer warrants that its legal name, address of its principal place of business and state of
organization are as set forth in the first unnumbered paragraph of this Agreement. Customer shall
promptly notify Seller of any change in this information. Seller shall be responsible for all
costs associated with perfecting and terminating such security interest.
1.37 FINANCING REQUIREMENTS
Seller acknowledges that the attainment of financing for construction of the PCS Systems may be
subject to conditions that are customary and appropriate for the providers of such financing.
Therefore, Seller agrees to promptly consider any reasonable amendment to or modification or
assignment of this Agreement required by such providers (including, without limitation, any
pertinent industrial development authority or other similar governmental agency issuing bonds for
financing of the PCS System) which do not modify the scope of Sellers work or Sellers rights or
obligations hereunder. In the event that any such proposed amendment or modification increases
Sellers risk or costs hereunder, Customer and Seller shall negotiate in good faith to adjust
pricing, and to equitably adjust such other provisions of this Agreement, if any, which may be
affected thereby, to the extent necessary to reflect such increased risk or costs. In no event
shall Seller be required to accept any modification or amendment pursuant to this Section.
Customer acknowledges that obtaining financing is its sole responsibility and Customer covenants
and agrees that it shall not make or assert, and Seller shall not be liable for, any claim, suit,
action or demand for damages or relief of any type arising from or related to Sellers refusal to
agree to any amendment or modification to this Agreement. In addition. Customer acknowledges that
its payment obligations hereunder are not contingent or conditional upon financing arrangements.
1.38 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller hereby covenants, represents and warrants to Customer as follows:
(a) Due Organization of Seller.
Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all requisite corporate power
and authority to own and operate its business and properties and to carry on its business as
such
business is now being conducted and is duly qualified to do business in all jurisdictions in
which
the transaction of its business makes such qualification necessary.
(b) Due Authorization of Seller; Binding Obligation.
Seller has full corporate
power and authority to execute and deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery and performance of this Agreement by Seller have been
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
41
duly authorized by all necessary corporate action on the part of Seller; this
Agreement has been duly executed and delivered by Seller and is the valid and binding obligation
of Seller enforceable in accordance with its terms, except as enforcement thereof may be limited
by or with respect to the following: (i) applicable insolvency, moratorium, bankruptcy, fraudulent
conveyance and other similar laws of general application relating to or affecting the rights and
remedies of creditors; (ii) application of equitable principles (whether enforcement is sought in
proceedings in equity or at law); and (iii) provided the remedy of specific enforcement or of
injunctive relief is subject to the discretion of the court before which any proceeding therefore
may be brought.
(c) Non-Contravention.
The execution, delivery and performance of this
Agreement by Seller and the consummation of the transactions contemplated hereby will comply
with and will not contravene any Applicable Law or Applicable Permit.
(d) Third Party Approvals.
All authorizations by, approvals or orders by, consents
of, notices to, filings with or other acts by or in respect of any governmental entity or any
other
Person required in connection with the execution, delivery and performance of this Agreement
by Seller have been obtained or will be obtained prior to any requirement therefor.
(e) Eligibility under Applicable Laws and Applicable Permits.
Seller covenants
and agrees that it will ensure that Seller and its Subcontractors are and remain eligible
under all
Applicable Laws and Applicable Permits for which it is responsible to perform the Services
under this Agreement in the various jurisdictions involved.
(f) Further Assurances.
Seller covenants and agrees that it will execute and deliver all
further instruments and documents, and take all further action, including, but not limited to, the
filing of notices of completion with the appropriate state, provincial and local lien recording
offices, that may be necessary or that Customer may reasonably request in order to enable Seller
to complete performance of the Services or to effectuate the purposes or intent of this Agreement.
(g) Liens and Other Encumbrances.
(i) Protect Work from Liens. Without limiting Sellers obligations under
Section
1.36
, with respect to the Products delivered hereunder, Seller covenants and agrees to
protect and keep them free from any and all claims, liens, charges or encumbrances in the
nature of mechanics, laborers and/or materialmens liens, or otherwise arising out of or
in connection with performance by Seller and/or any Subcontractor, and to promptly have any
such lien released by bond or otherwise, and make any and all filings and take any and all
other actions reasonably requested by Customer in order that Customer may take advantage of
the relevant local mechanics lien waiver procedures with respect to mechanics liens, and
Customer will cooperate in helping Seller to fulfill its obligation under this Section to
the extent reasonably necessary.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
42
(ii) Bonds. If any laborers, materialmens, mechanics, or other similar
lien or claim is filed by any Subcontractor, Seller will cause such lien to be satisfied or
otherwise discharged, or will file a bond in form and substance satisfactory to Customer in
lieu thereof within ten (10) Business Days following the filing thereof. If any such lien
is filed or otherwise imposed, and Seller does not cause such lien to be released and
discharged as provided in the preceding sentence, or file a bond in lieu thereof, then,
without limiting Customers other available remedies, Customer has the right, but not the
obligation, to pay all sums necessary to obtain such release and discharge or otherwise
cause the lien to be removed or bonded to Customers satisfaction and permanently set off
such sums from any payment then due or thereafter to become due to Seller under this
Agreement.
(iii) Non-Responsibility Notice. Customer reserves the right to post or place on
and/or within the PCS System notices of non-responsibility, or to do any other act required
by Applicable Law, to exempt Customer and the PCS System from any liability to third
parties by reason of any Services or improvements to be performed or furnished by Seller
hereunder; provided that failure by Customer to do so will not release or discharge Seller
from any of its obligations hereunder.
(h) Requisite Knowledge.
Seller represents that it has all requisite knowledge, know-how,
skill, expertise and experience to perform its obligations in accordance with the terms of this
Agreement.
1.39 REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTOMER
Customer hereby covenants, represents and warrants to Seller as follows:
(a) Due Organization of Customer.
Customer is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware and has all requisite
corporate
power and authority to own and operate its business and properties and to carry on its
business as
such business is now being conducted and is duly qualified to do business in all jurisdictions
in
which the transaction of its business makes such qualification necessary, except to the extent
failure to do so would not have a material adverse effect on either Partys ability to perform
its
obligations hereunder.
(b) Due Authorization of Customer; Binding Obligation.
Customer has full
corporate power and authority to execute and deliver this Agreement and to perform its
obligations hereunder, and the execution, delivery and performance of this Agreement by
Customer have been duly authorized by all necessary corporate action on the part of Customer;
this Agreement has been duly executed and delivered by Customer and is the valid and binding
obligation of Customer enforceable in accordance with its terms, except as enforcement thereof
may be limited by or with respect to the following: (i) applicable insolvency, moratorium,
bankruptcy, fraudulent conveyance and other similar laws of general application relating to or
affecting the rights and remedies of creditors; (ii) application of equitable principles
(whether
enforcement is sought in proceedings in equity or at law); and (iii) provided the remedy of
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
43
specific enforcement or of injunctive relief is subject to the discretion of the court
before which any proceeding therefore may be brought.
(c) Non-Contravention.
The execution, delivery and performance of this
Agreement by Customer and the consummation of the transactions contemplated hereby will
comply with and will not contravene any Applicable Law or Applicable Permit.
(d) Third Party Approvals.
All authorizations by, approvals or orders by, consents
of, notices to, filings with or other acts by or in respect of any governmental entity or any
other
Person required in connection with the execution, delivery and performance of this Agreement
by Customer have been obtained or will be obtained prior to any requirement therefor.
(e) Eligibility under Applicable
Laws
and Applicable Permits.
Customer
covenants and agrees that it will ensure that Customer and its subcontractors are and remain
eligible under all Applicable Laws and Applicable Permits for which it is responsible to
perform
any work required to be performed by Customer under this Agreement in the various
jurisdictions involved.
(f) Further Assurances.
Customer covenants and agrees that it will execute and
deliver all further instruments and documents, and take all further action, including, but not
limited to, the filing of notices of completion with the appropriate state, provincial and
local lien
recording offices, that may be necessary or that Seller may reasonably request in order to
enable
Seller to complete performance of the Work or to effectuate the purposes or intent of this
Agreement.
(g) Requisite Knowledge.
Customer represents that it has all requisite knowledge,
know-how, skill, expertise and experience to perform its obligations in accordance with the
terms of this Agreement.
1.40 SUBCONTRACTORS
(a) General.
With Customers prior written consent, which shall not be unreasonably withheld,
conditioned or delayed, Seller may subcontract any portion of its obligations under this Agreement,
but no such subcontracting shall relieve Seller from primary responsibility and liability for the
performance of Sellers covenants and obligations under this Agreement. Notwithstanding anything
that may be contained herein to the contrary, regardless of whether Customer consents to Sellers
use of a particular Subcontractor or whether Seller uses a Subcontractor recommended by Customer,
use by Seller of a Subcontractor shall not, under any circumstances: (i) give rise to any claim or
defense by Seller against Customer if such Subcontractor breaches its subcontract or agreement with
Seller; (ii) give rise to any claim by such Subcontractor against Customer; (iii) create any
contractual obligation by Customer to the Subcontractor; (iv) give rise to a waiver by Customer of
its rights to reject any defects or deficiencies in the work to be performed by Seller hereunder;
or (v) in any way release Seller from being solely responsible to Customer for the work to be
performed by Seller under this Agreement.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
44
(b) Inconsistent Terms.
The terms of this Agreement shall in all events be binding upon
Seller regardless of and without regard to the existence of any inconsistent terms in any agreement
between Seller and any Subcontractor whether or not and without regard to the fact that Customer
may have directly and/or indirectly had notice of any such inconsistent terms.
(c) Removal of Subcontractors.
Customer has the right at any time to request removal of a
Subcontractor and/or any of a Subcontractors personnel from work on the PCS System upon reasonable
grounds and reasonable prior notice to Seller. Seller shall remove such Subcontractor and/or
Subcontractors personnel upon such notice and shall use its best commercially reasonable
efforts to replace such removed Subcontractor and/or any of Subcontractors personnel without
causing any delay on any work on the PCS System; provided, however that to the extent that Seller
uses its best commercially reasonable efforts to replace such removed Subcontractor and/or any of
Subcontractors personnel, Seller shall not be responsible for any delay on any work on the PCS
System. Such request shall be in writing and, upon receipt of such request.
(d) Insurance.
Seller shall require its Subcontractors to obtain, maintain and keep in force,
during the time they are engaged in providing Products and Services hereunder, insurance coverage
of the types and levels customary in the industry (provided that the maintenance of any such
Subcontractor insurance shall not relieve Seller of its other obligations pursuant to this
Agreement), and Seller shall use its commercially reasonable efforts to have Customer and its
Affiliates named as additional insureds under such policies with a right to receive notice of any
termination of such policies. Seller shall, upon Customers request, furnish Customer with
evidence of such insurance in form and substance reasonably satisfactory to Customer.
(e) Warranties.
The warranties of Seller hereunder shall be deemed to apply to all Services
performed by any Subcontractor as though Seller had itself performed such Services.
(f) Payments to Subcontractors.
Seller shall make all payments it is contractually required
to make to all Subcontractors (except in the case of legitimate disputes between Seller and any
such Subcontractor arising out of the subcontract between Seller and such
Subcontractor) in accordance with the respective agreements between Seller and
its Subcontractors. If Customer provides Seller with notice that any payment owed by Seller to a
Subcontractor is past due (except in the case of legitimate disputes between Seller and
Subcontractor), Seller shall pay such Subcontractor within five (5) Business Days of receipt of
such notice from Customer, failing which Customer may pay the Subcontractor directly and obtain
reimbursement from Seller for the payment to the Subcontractor ***.
1.41 INSURANCE
(a) Coverages.
Both Parties shall maintain during the Term of this Agreement the following
insurance coverages, as well as any other insurance required by Applicable Law: (i) Workers
Compensation insurance or qualified self-insurance in amounts and as required by law; (ii)
employers liability insurance with a limit of at least one hundred thousand ($100,000.00)
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
45
dollars for each occurrence; (iii) Commercial General Liability (CGL) insurance with a limit
of at least one million dollars ($1,000,000.00) dollars per occurrence; and (iv) automobile
liability insurance with a limit of at least one million ($1,000,000.00) dollars for bodily
injury, including death, to any one person. Sellers CGL insurance will be primary and not
contributing with or in excess of coverage that Customer may carry. Sellers CGL insurance will
name Customer as an additional insured. From time to time upon written request, a Party shall
furnish to the other Party certificates evidencing the insurance required by this Section. Each
Party shall notify the other in writing at least thirty (30) days prior to cancellation of, or any
material change in, any policy required hereunder.
(b) Waivers.
The Parties release each other and waive any rights to recover against each
other, their Affiliates, agents, employees, officers, directors, or customers, for any loss or
damage arising from any cause covered or required to be covered by any property insurance required
to be carried or any other property insurance actually carried by such Party, but only to the
extent of such coverage. Each Party shall cause their respective insurers to issue waiver of
subrogation rights endorsements to all property insurance policies carried in connection with this
Agreement.
ARTICLE II
PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS
2.1 GENERAL
The provisions of this
Article II
are applicable to the purchase of Products from Seller. Where
specifically noted, selected provisions of this
Article II
also shall apply to Licensed Materials
and Services.
2.2 PRODUCT AVAILABILITY
Seller shall notify Customer in writing at least *** before Seller discontinues
accepting Purchase Orders for a Seller Manufactured Product sold under this Agreement (a
Discontinued
Product
);
provided, however, that if Seller offers a Seller Manufactured Product for
sale under this Agreement that: (a) is equivalent (in Form, Fit, Function and performance
capabilities) to the Discontinued Product; (b) is available at a price that is equal to or less
than the Discontinued Product; and (c) the full use of such replacement Seller Manufactured Product
does not require Customer to purchase or implement items not required by the Discontinued Product
(i.e.,
additional memory or processing capacity), Seller shall provide Customer with reasonable
advance written notice that it will discontinue accepting Purchase Orders for such Discontinued
Product, but in no event shall such advance written notice be less than ***. Seller
agrees that it may only discontinue providing a Product and/or Licensed Materials to Customer if it
is discontinuing the sale/license of such Product and/or Licensed Materials to all of its
customers. In the event of such a discontinuation, during the Product discontinuation notice
period. Customer may place Purchase Orders with Seller for the Discontinued Product in quantities
to be determined by Customer. ***, Seller shall fulfill all Customer
Purchase
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
46
Orders for
such Discontinued Product. Further, Seller agrees to use commercially reasonable
efforts to accept and fill all Purchase Orders in excess of such quantities. If Seller discontinues
a Product and/or Licensed Materials and does not offer an equivalent
(in Form, Fit, Function and
performance capabilities) Product and/or Licensed Materials for sale/license, ***.
2.3 DOCUMENTATION
Seller
shall furnish to Customer, ***, one CD ROM version or on-line version of
Documentation for each Product purchased by Customer hereunder. Such
Documentation will be that
customarily provided by Seller to its other customers at no
additional charge. Such Documentation
shall be provided prior to, with, or shortly (no less than ***) after the
shipment of the Products from Seller to Customer. ***. Additional copies of the Documentation are available at
prices set forth in the Customer
Price List.
2.4 PRODUCT COMPLIANCES
(a) Applicable
Laws
. Seller represents and warrants to Customer that all Products (excluding
Discontinued Products after the applicable discontinuation notice
period has expired) furnished
hereunder are and shall continue to comply with all Applicable Laws
including, without limitation,
the requirements of Part 24 of the Federal Communication
Commissions Rules and Regulations
pertaining to personal communications services in effect upon
delivery of such Products. In
addition, Seller represents and warrants to Customer that all Products (excluding Discontinued
Products after the applicable discontinuation notice period has
expired) furnished hereunder are and
shall continue to comply with the requirements of Subpart J of
Part 15 of the Federal Communication
Commissions Rule and Regulations in effect upon delivery of the applicable Product, including those
sections concerning the labeling of such Product and the suppression of radio frequency and
electromagnetic radiation to specified levels. Seller makes no undertaking with respect to harmful
interference caused by: (i) installation, repair, modification or change of Products by Persons
other than Seller or its Affiliates, or any of their respective
employees, Subcontractors, agents or
representatives; (ii) Products subjected to misuse, neglect accident or abuse by persons other than
Seller or its Affiliates, or their respective employees, Subcontractors, agents or representatives;
(iii) Products being used in a manner not in accordance with their operating instructions or in a
suitable installation environment or operation of other equipment in the frequency range reserved
for Customer within the Licensed Area. In order to ensure that the Products (excluding Discontinued
Products after the applicable discontinuation notice period has expired) remain in compliance with
all Applicable Laws, Seller timely shall: (iv) modify the Products from time to time; and (v)
provide such modifications to Customer.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
47
(b) Disclaimers.
Seller assumes no responsibility under this Section for items not
specified or supplied by Seller. Acceptance and/or certification of items not specified or
supplied by Seller shall be the sole responsibility of Customer.
2.5 PRODUCT CHANGES
Prior to shipping a Product, Seller may at any time make changes in a Product furnished
pursuant to this Agreement, or modify the drawings and published Specifications relating thereto,
or substitute Products of later design to fill a Purchase Order, provided: (a) the changes,
modifications, or substitutions under normal and proper use do not
impact upon the Form, Fit,
Function and/or performance capabilities of an ordered Product; and (b) such substitute Product
remains compatible with other Products and Licensed Materials furnished by Seller hereunder to the
same extent as the Product(s) for which the change was introduced; and (c) such substitute Product
does not require Customer to expend material additional amounts to procure, use and/or maintain
such substitute Product(s). ***
2.6 CONTINUING PRODUCT SUPPORT PARTS AND SERVICES
In
addition to Sellers obligations under the applicable Product warranty, Seller offers
repair Services and Repair Parts in accordance with Sellers repair and Repair Parts practices and
terms and conditions specified in
Attachment G.
Notwithstanding anything that may be contained
herein to the contrary, such repair Services and Repair Parts shall be available while Seller is
manufacturing or stocking such Products or Repair Parts, and for *** after a Products
discontinued availability effective date, subject to the pricing provisions in
Attachment J.
At
Customers request made no later than *** before
the end of the *** period (i.e., *** after the discontinued availability effective date), Seller will make such Services and
Repair Parts available for an additional *** (i.e., *** after a Products
discontinued availability effective date) on prices, terms and conditions mutually agreed in
writing no later than the expiration of such *** period. Seller may use new, remanufactured,
reconditioned, refurbished, or functionally equivalent Products or Repair Parts in the furnishing
of repairs or replacements under this Agreement, provided they do not affect the Form, Fit,
Function and/or performance capabilities of the applicable Product. Such Repair Parts shall comply
with the Specifications.
If
after the *** period following a Products discontinued availability effective date,
Seller is unable to provide Repair Part(s) and/or repair Service(s) and a functionally equivalent
replacement Product has not been designated, Seller shall so advise Customer by written notice
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
48
given at least *** prior to the end of the *** period to allow Customer
to plan appropriately, and if Seller is unable to identify another source of supply for such
Repair Part(s) and/or repair Service(s), ***.
2.7 SPECIFICATIONS
Upon request, Seller shall provide to Customer, *** one (1) copy of Sellers available
commercial specifications applicable to Products and Software orderable hereunder. Additional
copies are available at the applicable price in the Customer Price List.
2.8 CUSTOMER TECHNICAL SUPPORT
Upon Customers request, Seller shall provide Customer Technical Support for the PCS Systems
through the Remote Technical Support Program
(RTS Program)
described in
Attachment D.
The RTS
Program provides diagnostic center support, performance measurement and system engineering
services at the prices, terms and conditions for such services set forth in
Attachments D
and
J.
Special, unusual or customized services may be billable, depending upon the nature of the request.
When accessing Customers PCS Systems, Seller will follow Customers internal rules relating to
access and control of access which Customer has adopted to comply with the Sarbanes-Oxley Act and
related federal regulations. Seller will provide Customer with a copy of such rules and any and
all updates that Customer adopts from time to time.
2.9 PRODUCT WARRANTIES
(a) Warranties.
Seller warrants to Customer that:
(i) As of the date title to Products passes to Customer, Seller will have the right
to sell, transfer, and assign such Products to Customer free and clear of any and all
third party liens, claims and encumbrances, and the title conveyed by Seller shall be good
and marketable title;
(ii) All Products, including Sellers Manufactured Products, will be free from
defects in material and workmanship, and will conform to, and operate in accordance with,
Sellers Specification or any other agreed-upon Specification referenced in the Purchase
Order for such Product; and
(iii) With respect to Vendor Items, Seller, to the extent permitted, does hereby
assign to Customer the warranties and indemnities given to Seller by its vendor of such
Vendor Items. Such assignment will be effective on the date of shipment of such Vendor
Items. With respect to Vendor Items recommended by Seller in its Specifications for which
the vendors warranties and indemnities cannot be assigned to Customer, or if
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
49
assigned, less than *** remain of the vendors warranty at the time
of assignment, Seller warrants that for *** from the date of shipment or,
if installed by Seller, from Acceptance by Customer, such Vendor Items will be free
from defects in material and workmanship and shall conform to, and operate in
accordance with, their Specifications.
(b) Warrant Periods.
The Warranty Periods listed below are applicable to all
Products* furnished pursuant to this Agreement:
|
|
|
|
|
Class of
|
|
New
|
|
Repaired or
|
Product
|
|
Product
|
|
Replacement Product or Part* *
|
PCS Switching Center
|
|
***
|
|
***
|
and Base Station
Hardware
|
|
|
|
|
|
|
|
|
|
All other Products
|
|
***
|
|
***
|
|
|
|
*
|
|
Refer to
Section 3.8
for associated Software warranties.
|
|
**
|
|
The Warranty Period for a Repaired Part or for a replacement Product, or part thereof,
furnished in lieu of repair under this warranty is the period listed above or the unexpired
term of the original Product Warranty Period, whichever is longer.
|
Notwithstanding anything in this Agreement to the contrary, if Customer uses any part of any
system for In Revenue Service, or to provide training or hands-on experience to Customers
personnel, the applicable Warranty Period shall commence.
(c)
Correction of Defects and Nonconformities.
If, under normal and proper use during the
applicable Warranty Period, a defect or nonconformity is identified in a Product furnished by
Seller, and Customer promptly notifies Seller in writing of such defect or nonconformity and
follows Sellers reasonable instructions regarding return of the defective or nonconforming
Product, Seller shall take the following actions:
(i) Seller shall use best efforts first to repair or replace such Product, without
charge at its facility or, if Seller is unable to repair or replace such Product within
a reasonable time, at Customers option, Seller shall provide a
credit ***. Customer must return the Product to Seller for repair
and replacement, except as noted in
subsection (ii)
below. The initial replacement of a
defective non-Accepted
(e.g.
rejected) or non-conforming Product will be with a new
Product that complies with the applicable Specifications.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
50
(ii) Where Seller is repairing or replacing a Product which has been installed
by Seller and the Product is not easily returnable by Customer, Seller will repair or
replace the Product at Customers Site at Sellers cost and expense.
(d) Performance.
In addition to the warranties set forth in
subsection (a)
above. Seller
represents and warrants to Customer that, subject to the qualifications below:
(i) the Products and Software to be delivered hereunder will, upon completion of
installation, operate in accordance with the performance standards set forth in the
Specifications, and
(ii) the Services to be performed hereunder will, upon completion, have been performed
in accordance with the standards and requirements set forth in the Specifications;
provided that Customer has satisfied all of its obligations set forth in this Agreement with
respect to the Products, Software and Services to the extent they affect such performance.
(e) Removal/Re-installation of Products.
If Seller is repairing or replacing a defective
Product. Customer is responsible for removing and reinstalling and, in addition, for on-Site repair
or replacement of, cable and wire Products. Customer must make the Product accessible for repair or
replacement, and is responsible for restoring the Site.
(f) Returns.
Products returned for repair or replacement will be accepted by Seller only in
accordance with its reasonable instructions and procedures for such returns. The transportation
expense associated with returning such Product to Seller shall be borne by Seller to the extent it
is determined that the Product is defective or non-conforming and in need of repair or replacement.
Seller shall pay the cost of transporting of the repaired or replacement Product to the destination
designated by Customer within the Territory.
(g) Ownership of Defective Products and Parts.
Defective or nonconfonning Products or
parts which are replaced hereunder shall become Sellers property. Seller may use either new,
remanufactured, reconditioned, refurbished, or functionally equivalent Products or parts in the
furnishing of repairs or replacements under this Agreement, provided that: (i) such Products or
parts comply with the Specifications; and (ii) if a defect or
nonconformity is found within *** of In Revenue Service. Seller will replace or repair the defective or nonconforming
Product with a new Product or part within ***.
(h) Non-Defective Products.
Unless the Parties agree otherwise in writing, if it is
determined that a Product for which warranty Service is claimed is not defective or nonconforming.
Customer shall pay Sellers actual costs of handling, inspecting, testing, and transporting the
Products and, if applicable, traveling and related expenses associated with on-Site repairs.
(i) Exclusions.
Seller makes no warranty with respect to defective conditions or
nonconformities to the extent they result from the following: (i) Customers misuse, neglect,
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
51
accident, abuse or unauthorized modifications; (ii) improper wiring, repairing, splicing,
alteration, installation, storage or maintenance (except to the extent such acts are performed by
Seller or its Affiliates, or any of their respective employees, Subcontractors, agents or
representatives); (iii) use in a manner not in accordance with the applicable Specifications,
operating instructions or other Seller instructions; or (iv) failure of Customer to apply
previously available Seller modifications and corrections. In addition, Seller makes no warranty
with respect to Products which have had their serial numbers or months and year of manufacture
removed or altered, or with respect to expendable items, including, without limitation, fuses,
light bulbs, motor brushes and the like.
(j) Disclaimer.
THE PRODUCT WARRANTIES SET FORTH ABOVE OR ELSEWHERE IN THIS AGREEMENT OR IN
ANY WRITING SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF
ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SUBSECTION,
CUSTOMERS SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLERS OBLIGATION TO
REPAIR, REPLACE, OR CREDIT AS SET FORTH ABOVE IN THIS SECTION. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IF SELLER FAILS TO REPAIR, REPLACE, OR ISSUE A CREDIT AS SET FORTH ABOVE
WITHIN A REASONABLE PERIOD OF TIME, CUSTOMER THEREAFTER MAY, AT ITS OPTION, DECLARE A SELLER EVENT
OF DEFAULT.
2.10 ACCEPTANCE
(a) General Acceptance.
Unless the terms of subsection (b) below apply, for Products and
Licensed Materials for which Seller installation is not required,
Customer shall have *** from the Delivery Date of each Product and/or Licensed Material to accept or reject,
in a written notice to Seller, such Product and/or Licensed Material
(e.g.,
to confirm that such
Product and/or Licensed Material was ordered by Customer, is not damaged and that the order is
complete per the applicable bill of lading). If Customer does not provide written notice of
rejection to Seller within such *** period, the Product and/or Licensed Material
will then be deemed accepted by Customer. Unless the terms of
subsection
(b)
below apply, for
Products and Licensed Materials for which installation is required,
Customer shall have *** from the later of: (i) the Delivery Date of such Product and/or Licensed Material;
and (ii) the applicable Installation Completion Date, to accept or reject, in a written notice to
Seller, such Product or Licensed Material
(e.g.,
to confirm that such Product or Licensed Material
was ordered by Customer, is not damaged, operates properly and complies with Sellers
Specifications). If Customer does not provide written notice of rejection to Seller within such
*** period, the Product and/or Licensed Material will then be deemed accepted by
Customer. Notwithstanding the foregoing, Customers use of any part of the Products or Licensed
Materials for any In Revenue Service shall constitute acceptance of such Products or Licensed
Materials for all relevant purposes of this Agreement. Acceptance of Products, Licensed Materials
and/or Services shall not reduce Sellers warranty obligations under this Agreement.
(b)
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
52
*** Acceptance of
Products, Licensed Materials and/or Services shall not reduce Sellers warranty obligations under
this Agreement.
(c) Failure to Achieve Acceptance.
(i) Liquidated Damages.
To the extent that any of the Products, Software or
Services fail the applicable Acceptance Test conducted under subsection (b), Seller will correct
the deficiency and deliver, repair or replace the Products or Software, or re-perform the Service,
as the case may be, within thirty (30) days following receipt of Customers notice of rejection.
The Parties agree that damages for nonperformance of Products, Licensed Materials and Services
are difficult to calculate accurately and, therefore, if Seller is unable to correct any such
deficiency within such thirty (30)-day period, Customer may elect to receive as liquidated
damages, and not as a penalty, an amount equal to ***, until such deficiency has been corrected. The liquidated damages
will begin to accrue on the 31
st
day after Sellers receipt of Customers notice.
Customer will inform Seller of the imposition of any liquidated damages in writing. All
such liquidated damages shall be paid to Customer in the form of credits against future
invoices for payments due for Products, Licensed Materials or Services purchased by Customer following
issuance of such credits; provided, however, that if Seller does not issue invoices in amounts
sufficient for Customer to apply such credits during the Term, then within three (3) months
following termination or expiration of this Agreement, Seller shall reimburse Customer in cash
in an amount equal to the value of such purchase credits, which credits shall then be
canceled. The Parties agree that if Customer elects to receive liquidated damages from Seller, Sellers
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
53
***.
(ii)
Credit.
If Seller is unable to correct, repair, or replace any non-conforming
or deficient Product or Software or to re-perform defective Service within four (4) weeks
following receipt of Customers notice thereof, then Customer may elect, upon notice given to
Seller no later than two (2) weeks after the expiration of the four (4) week period described
herein, to receive a credit for the non-conforming or defective Product, Software and/or Service.
In such event, Customer shall return the non-conforming or defective Product and/or Software
that: (A) are integral to Customers and/or its Authorized Users Use or operation of such Product
and/or Software; or (B) interface with or are interfaced with such Product and/or Software and
that are rendered substantially ineffective or that require a material expenditure of time or money to
use or operate as a result, and Seller shall issue a credit to Customer equal to (i) the amounts paid
by Customer for such Product and/or Software and/or for the defective Service, plus sales taxes,
transportation charges and installation charges, if installed by Seller, plus (ii) the purchase
price paid for all other Products and/or Licensed Materials (including related installation and
transportation charges and applicable taxes) that: (A) are integral to Customers and/or its
Authorized Users Use or operation of such Product and/or Software; or (B) interface with or are
interfaced with such Product and/or Software and that are rendered substantially ineffective or
that require a material expenditure of time or money to use or
operate as a result. ***
Notwithstanding the above, Customer shall not be permitted to return Products or Software, or
request a credit for Services, which have already passed the applicable Acceptance Test.
(d) Acceptance of Services.
Acceptance provisions for installation Services are set forth in
Section 4.2.
ARTICLE III
PROVISIONS APPLICABLE TO THE
LICENSING OF LICENSED MATERIALS
3.1 GENERAL
The provisions of this Article apply to the granting of licenses pursuant to this Agreement
by Seller to Customer and/or its Affiliates for Licensed Materials.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
54
3.2 LICENSE
(a) Licensed Materials.
Upon Delivery of Licensed Materials, but subject to payment
of all applicable license fees including, but not limited to, any continuing update
fees that Customer has agreed to pay, Seller grants to Customer and its Affiliates a perpetual, fully
paid,irrevocable (except as provided in
Section 3.9
), nontransferable (except as permitted
hereunder),and nonexclusive license pursuant to this Agreement for: (i) Customer and its Affiliates and
their Authorized Users to Use Licensed Materials in the Territory with either the Designated
Processor or temporarily on any comparable replacement, if the Designated Processor becomes inoperative,
until the Designated Processor is restored to operational status; and (ii) for Customer and
its Affiliates and their Authorized Users to copy the Licensed Materials as required for archival,
backup and up to three (3) copies for testing purposes, at no additional charge to Customer or
its Affiliates or any of their Authorized Users. Customer and its Affiliates and Authorized
Users shall use Licensed Materials only for the business operations of Customer, its Affiliates and
any Designated Entity, including providing services to their customers, resellers and agents.
The above
license grants Customer and its Affiliates no right to, and Customer, and its Affiliates
shall not (and shall not allow their Authorized Users to) sublicense such Licensed Materials, or modify,
decompile, or disassemble Software furnished as object code to generate corresponding Source Code.
(b) Know-How.
***
(c)
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
55
***
***
***
***
***
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY
(a) Ownership.
As between Customer (or an Affiliate) and Seller, all Licensed
Materials (whether or not part of Firmware) furnished by Seller, and all copies thereof made
by
Customer, including translations, compilations, and partial copies, are the property of
Seller.
(b) Confidentiality.
Except for any part of Licensed Materials which: (i) is or
becomes generally known to the public through acts not attributable to Customer or any
Affiliate;
(ii) is furnished to Customer or an Affiliate by a third party as a matter of right without
restriction on disclosure; or (iii) is independently developed by Customer or an Affiliate or
a
third party without use of or reference to the Licensed Materials, Customer and its Affiliates
shall
hold the Licensed Materials in confidence, and shall not (and shall not allow their Authorized
Users to), without Sellers prior written consent, disclose, provide, or otherwise make
available, in
whole or in part, any Licensed Materials to anyone, except to their Authorized Users having a
need-to-know. Customer and its Affiliates shall not copy Software embodied in Firmware.
Customer and its Affiliates shall not make any copies of any Licensed Materials except as
provided
in
Section 3.2
and/or as necessary in connection with the rights granted hereunder. Customer
and
its Affiliates shall reproduce and include any Seller copyright and other proprietary notice
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
56
appearing on such Licensed Materials on all copies of the Licensed Materials. Customer and
its
Affiliates shall also mark all media containing such copies with a warning that the Licensed
Materials are subject to restrictions contained in an agreement between Seller and Customer and
that such Licensed Materials are the property of Seller.
(c) Appropriate Actions.
Customer and its Affiliates shall take appropriate action, by
instruction, agreement, or otherwise, with the persons permitted access to the Licensed
Materials
so as to enable Customer and its Affiliates to satisfy their obligations under this Agreement
(but in
no event shall Customer and its Affiliates be required to take actions that are not
commercially
reasonable).
(d) Return/Destruction.
When the Licensed Materials are no longer needed by
Customer and its Affiliates, or if Customers and its Affiliates license is canceled or
terminated as
provided in
Section 3.9,
Customer and/or its Affiliates shall return all copies of such
Licensed
Materials to Seller or follow written disposition instructions provided by Seller.
(e) Survival.
Customers and its Affiliates obligations set forth in this
Section 3.3
will
survive expiration or termination of this Agreement for as long as the applicable Licensed
Materials remain confidential.
3.4 CHANGES IN LICENSED MATERIALS
Prior to shipment, Seller may substitute modified Licensed Materials to fill a Purchase Order,
provided the modifications, under normal and proper Use: (a) do
not adversely change the Use, Function, or performance capabilities that Customer would have enjoyed if it had received the
originally ordered Licensed Materials; and (b) are Backwards Compatible in accordance with
Section 3.8,
to the same extent as that represented by Seller for the originally ordered Licensed
Materials. Seller shall provide Customer with advance written notice of such proposed
substitution, and if Sellers substitute Licensed Materials do not satisfy all of the criteria
specified
above in this Section: (i) Customer shall have the right upon written notice to Seller to
terminate
all affected Purchase Orders without penalty or liability of any kind or nature; (ii) the
originally
ordered Licensed Materials shall be treated as a Discontinued Product that does not have an
equivalent replacement as provided in
Section 2.2;
and ***.
Such substitution shall not result in any additional charges to Customer with respect to licenses
for
which Seller has quoted fees to Customer.
3.5 MODIFICATIONS TO SOFTWARE; PRODUCT COMPLIANCES
(a) Modifications.
Customer may request Seller to make changes to Sellers Software.
Upon receipt of a document describing in detail the changes requested by Customer, Seller will
respond in writing to Customer within thirty (30) days. If Seller agrees to undertake such
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
57
modifications, the response shall quote a proposed delivery date and a fee for a license to
such modified Software.
(b) Product Compliances.
(i)
Applicable Laws.
Seller represents and warrants to Customer that all
Software furnished hereunder is and shall continue to comply with all Applicable Laws
including, without limitation, the requirements of Part 24 of the Federal
Communication
Commissions Rules and Regulations pertaining to personal communications services in
effect upon delivery of such Software. In addition, Seller represents and warrants to
Customer that all Software furnished hereunder is and shall continue to comply with
the
requirements of Subpart J of Part 15 of the Federal Communication Commissions Rule
and
Regulations in effect upon delivery of the applicable Software, including those
sections
concerning the labeling of such Software and the suppression of radio frequency and
electromagnetic radiation to specified levels. Seller makes no undertaking with
respect to
harmful interference caused by: (A) installation, repair, modification or change of
Software by Persons other than Seller or its Affiliates, or any of their respective
employees,
Subcontractors, agents or representatives; (B) Software subjected to misuse, neglect,
accident or abuse by persons other than Seller or its Affiliates, or their respective
employees, Subcontractors, agents or representatives; (C) Software being used in a
manner
not in accordance with operating instructions or in a suitable installation
environment or
operation of other equipment in the frequency range reserved for Customer within the
Licensed Area. In order to ensure that the Software remains in compliance with all
Applicable Laws, Seller timely shall: (D) modify the Software from time to time; and
(E)
provide such modifications to Customer.
(ii)
Disclaimers.
Seller assumes no responsibility under this Section for items
not specified in writing and/or supplied by Seller. Acceptance and/or certification of
items
not specified in writing and/or supplied by Seller shall be the sole responsibility of
Customer.
3.6 MODIFICATION BY CUSTOMER
Unless: (a) otherwise agreed; or (b) contemplated in the design of the Software to be
modified by
customers, Customer is not granted any right to modify Software furnished by Seller under this
Agreement.
3.7 RELATED DOCUMENTATION
Seller
shall furnish to Customer, *** one copy of the Related
Documentation
for Software furnished by Seller, per every 5ESS Switch / Access Manager purchased by
Customer. Additionally, Customer shall be provided, upon request,
with *** more CD ROM
versions of the Documentation, ***. Such Related Documentation will be that
customarily provided by Seller to its Customers at no additional charge. Such Related
Documentation shall be provided prior to, with, or shortly (no later
than ***)
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
58
after provision of Software by Seller to Customer. Additional copies of the Related Documentation
are available at prices set forth in the Customer Price List.
3.8 SOFTWARE WARRANTY
(a) General
. Seller warrants to Customer that:
(i) Software, media and Related Documentation developed or supplied by
Seller will be free from those defects which materially affect performance in
accordance
with Sellers Specifications or other agreed upon specifications referenced in the
applicable
Purchase Order; and
(ii) Seller has the right to grant the Software licenses it grants under this
Agreement; and
(iii) With respect to Software not developed by Seller, Seller, to the extent
permitted, does hereby assign to Customer the warranties and indemnities given to
Seller
by its supplier of such Software; and
(iv)
***
(v) Upon Delivery to Customer, the Software will not contain, and Customer
will not receive from any Seller data transmission via modem, tape or other
Seller-provided
medium (including, without limitation, any connection to any Seller web-site or
bulletin
board), any virus, worm, trap door, back door, timer, clock, counter or other limiting
routine, instruction or design that would erase data or programming or otherwise cause
any
Software, system or equipment to become inoperable or incapable of being used in
accordance with the Specifications and/or for the ordered capacity (a
Disabling
Cod
e
),
including without limitation, any limitations that are triggered by, as applicable:
(A) any
Software being used or copied a certain number of times, or after the lapse of a
certain
period of time; (B) any Software being installed on or moved to a central processing
unit or
system that has a serial number, model number or other identification different from
the
central processing unit or system on which the software originally was installed; or
(C) the
occurrence or lapse of any similar triggering factor or event. ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
59
***
With respect to Software not developed by Seller as described in the foregoing
subsection
(iii)
, to the extent Seller is not permitted to assign to Customer the warranties and
indemnities
given to Seller by its supplier of such Software, at Customers request, Seller shall enforce
such
warranties and indemnities on Customers behalf.
(b) Warranty Periods.
The Warranty Periods and this warranty are applicable to
Software developed by Seller, the Related Documentation developed by Seller and associated
with
such Software, and the medium on which such Software is recorded, unless otherwise stated.
|
|
|
Software
|
|
Warranty Period
|
PCS Switching Center and Base Station
|
|
***
|
|
|
|
All Other Software
|
|
***
|
The Warranty Period for media and Related Documentation shall commence on the same date as
the Warranty Period for their associated Software. The Warranty Period for PCS Switching Center
and Base Station Software (including any prior Software Update issued to Customer in respect
thereto) expires upon installation of any subsequent Software Update or Major Release for such
Software (or Software Update) provided to Customer through Sellers BRSS Program described in
Attachment D.
(c) Correction of Defects and Nonconformities.
If, under normal and proper Use
during the applicable Warranty Period, the Software covered in
Section 3.8(a)(i)
and/or
(iv)
fails to
perform as warranted, and Customer notifies Seller in writing of such defect and follows
Sellers
reasonable instructions, if any, regarding return of defective Software, Seller shall either
correct or
replace such Software without charge within a reasonable time thereafter. If not corrected
or
replaced within a reasonable time period, at Customers option, Seller shall issue a credit to
Customer equal to the amount paid by Customer for the original license fee for the defective
Software, plus related transportation charges and applicable taxes and installation fees if
installed
by Seller.
(d) Returns.
Software returned for correction or replacement will be accepted by
Seller only in accordance with its reasonable instructions and procedures for such returns.
The
transportation expense associated with returning such Software to Seller shall be borne by
Seller to
the extent it is determined that the Product is defective or non-conforming and in need of
repair or
replacement. Seller shall pay the costs of transporting of the corrected or replacement
Software to
the destination designated by Customer within the Territory.
(e) Non-Defective Software.
Unless the Parties agree otherwise in writing, if it is
determined that Software for which warranty Service is claimed is not defective or
nonconforming.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
60
Customer shall pay Sellers actual costs of handling, inspecting, testing and transporting
the
Software and, if applicable, traveling and related expenses associated with on-Site repairs.
(f) Exclusions.
Seller makes no warranty with respect to defective conditions or
nonconformities to the extent they result from the following: (i) modifications not made or
authorized by Sellers and/or its Affiliates employees, agents,
Subcontractors and/or
representatives; (ii) misuse, neglect, or accident (to the extent not caused by Seller and/or
its
Affiliates employees, agents, Subcontractors and/or representatives); (iii) installation, use
or
maintenance in a manner not in accordance with Sellers Specifications, operating
instructions, or
license-to-use; (iv) Customers failure to apply Seller modifications and corrections made
available
to Customer; or (v) Software not provided, developed or recommended in writing by Seller. In
addition, Seller makes no warranty with respect to defects related to Customers data base
errors.
Moreover, no warranty is made that Software will run uninterrupted or error free.
(g) Disclaimer.
THE SOFTWARE WARRANTIES SET FORTH ABOVE OR
ELSEWHERE IN THIS AGREEMENT OR IN ANY WRITING SIGNED BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS PROVIDED IN THIS SUBSECTION, CUSTOMERS SOLE AND EXCLUSIVE
REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLERS OBLIGATION
TO CORRECT, REPLACE, OR CREDIT AS SET FORTH ABOVE IN THIS SECTION AND
IN
SECTION 2.9.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IF SELLER FAILS TO REPAIR, REPLACE OR CREDIT AS SET FORTH
ABOVE WITHIN A REASONABLE PERIOD OF TIME, CUSTOMER THEREAFTER MAY, AT ITS OPTION, DECLARE A SELLER EVENT OF DEFAULT.
3.9 CANCELLATION OF LICENSE
If Customer fails to comply with any of the material terms and conditions of
Sections 3.2(a),
3.3
and/or
3.6
and Customer fails to cure, or if incurable fails to make substantial progress toward
curing, such non-compliance, subject to Customers transition rights under
Section 1.19(f),
within
*** after Customers receipt from Seller of written notice requiring it to
do
so, which notice must specify in reasonable detail the nature of the non-compliance, Seller, upon
written notice to Customer, may cancel any affected license for Licensed Materials.
3.10 TAXES APPLICABLE TO SOFTWARE
Notwithstanding anything contained in
Section 1.16
to the contrary, Seller shall not bill,
collect, or
remit any state or local sales or use tax with respect to the license of Software under this
Agreement, or with respect to the performance of Services related to such software, which
Customer represents to Seller is not properly due under Customers interpretation of the law of the
taxing jurisdiction, if: (a) Customer submits to Seller a written explanation of the authorities
upon
which Customer bases its position that the license or performance of Services is not subject to
sales
or use tax; and (b) Seller agrees that there is authority for Customers position, provided,
however,
that Customer shall hold Seller harmless for all costs and expenses (including, but not limited to,
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
61
taxes and
related charges payable under
Section 1.16,
and reasonable attorneys fees)
arising from
the assertion by a taxing authority that the license of, or the performance of Services with
respect
to, the Software was subject to state or local sales or use tax.
ARTICLE IV
PROVISIONS APPLICABLE TO ENGINEERING,
INSTALLATION AND OTHER SERVICES
4.1 GENERAL
The provisions of this
Article IV
shall be applicable to the furnishing by Seller of Services
under
this Agreement. Unless Customer has elected to perform self-installation services in accordance
with
Attachment I.
Seller shall perform engineering, installation, and integration Services
associated with the Products and Software acquired by Customer under this Agreement.
4.2 ACCEPTANCE OF INSTALLATION
At
reasonable times during the course of Sellers installation, Customer, at its request may, or
upon
Sellers request, shall, inspect completed portions of such installation.
When
Seller has finished installing a Product, Licensed Material or PCS System in accordance
with the relevant provisions of
Attachment E, Attachment J, Attachment L, Attachment M
or
other written statement of work agreed by the Parties
(Installation Completion),
Seller shall
notify Customer of Installation Completion. Upon receipt of Sellers notice, and provided
Customer has notified Seller at the commencement of installation of Customers intent to conduct
Acceptance Tests, Customer may test and review the installed Product, Licensed Material or PCS
System and all related Services to determine if they have been performed, in Customers reasonable
satisfaction, in accordance with the relevant Attachment and/or statement of work. Within *** of receiving Sellers notice of Installation Completion, Customer may provide Seller with
a list of Punch List Items. Seller will promptly correct or complete the Punch List Items, as the
case may be, and submit notice to Customer that the Punch List Items have been completed.
Within *** of Customers receipt of such notice, Customer may test and review the
installation and Punch List Items to determine if they have been performed, in Customers
reasonable satisfaction, in accordance with the relevant Attachment and/or statement of work. The
process in this Section shall repeat until Customer: (i) has confirmed in writing that Installation
Completion has occurred, in Customers reasonable judgment and that no Punch List Items remain
uncorrected; or (ii) *** elapse after Customers receipt of Sellers notice and
Customer
does not submit Punch List Items or does not indicate in writing that any Punch List Items are
uncorrected or otherwise indicate in writing that Installation Completion has not occurred. If
Customer had notified Seller of Customers intent to conduct Acceptance tests at commencement
of installation, the date that the first event described in
subsection (i)
or
(ii)
occurs shall be
the
Installation Completion Date.
If Customer did not notify Seller of Customers intent to conduct
Acceptance tests at commencement of installation, the date that Seller submits its notice of
Installation Completion will be the Installation Completion Date. Acceptance of the installation
and related Services shall occur upon the Installation Completion Date. Acceptance of Products,
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
62
Licensed Materials and/or Services shall not reduce Sellers warranty obligations under this
Agreement.
4.3 SELLERS PERSONNEL
(a) General.
Seller shall provide sufficient, qualified personnel to perform Sellers
obligations hereunder.
(b) Removal of Seller Personnel by Customer.
If Customer has a concern
regarding Sellers personnel, Seller shall meet with Customer to discuss Customers concerns,
and negotiate in good faith a mutually agreeable solution within a reasonable period of time,
which may include removal or reassignment of Sellers personnel.
(c) Transition.
If Seller replaces an individual as provided in
subsection (b)
above, the replacement personnel shall work with the replaced personnel during a mutually
agreed transition period, the duration of which shall be determined based on the duties and
responsibilities of the person to be replaced, and all costs and expenses associated with
educating
and training the replacement personnel shall be borne by Seller. In addition, provided the
replaced personnel remain employed by Seller, such individual shall continue to be available
by
telephone to answer any project-related questions.
(e) Solicitation of Personnel.
During any period that any individual assigned by a
Party to perform obligations in connection with this Agreement is performing such obligations
and for a period of twelve (12) months thereafter, without the prior written consent of the
Party
that has employed such individual, the other Party shall not, directly or indirectly, solicit
for
employment, or contract for the services of, such individual; provided, however, that the
foregoing will not prohibit a general, non-targeted solicitation for employment, such as
newspaper advertisements.
|
|
|
4.4
|
|
CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMERS SITE
|
ITEMS PROVIDED BY CUSTOMER:
As set forth in this Agreement, Customer will be responsible for furnishing the following items
(as
required by the conditions of the particular installation) or other on-Site Services, at no charge
to
Seller and these items will not be included in Sellers price for the Services. Sellers
representative
shall have the right to inspect the Site prior to the Start Date. Should Customer fail to furnish
any
of such items, or perform other essential obligations for which it is responsible under this
Agreement after Seller provides Customer ten (10) days written notice, Seller may initiate a
Change Order and seek an equitable adjustment to the installation delivery schedule due to any
delays caused thereby pursuant to
Section 1.8.
Regulatory Commission Approvals:
Prior to Service start date, obtain all such Applicable
Permits
including such approvals, licenses, permits, tariffs and/or other authorities from the Federal
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
63
Communications Commission and state and local public utilities commissions as may be
necessary
for construction and operation of a PCS System.
Easements, Permits and Rights-of-Way:
Prior to the Start Date, provide all rights-of-way,
easements, licenses to come upon land to perform the Services, permits and authority for
installation of Products and other items; permits for opening sidewalks, streets, alleys, and
highways; and construction and building permits.
General Building Conditions:
When Customer provides or arranges for a third party to
provide
PCS, Customer shall prior to the Start Date:
a. Ensure that the PCS Site structures are in a structurally safe and sound condition to
properly house the materials to be installed, in accordance with weight, strength, and structural
requirements specified by Seller in writing. Customer shall provide Seller a certificate of a duly
licensed architect or engineer prior to Seller having access to the PCS Site stating that the
Site(s)
meets such requirements;
b. Take such action as may be necessary to insure that the premises will be dry and free from
dust (such that it doesnt impair the performance of the equipment) and Hazardous Materials,
including but not limited to asbestos, and in such condition as not to be injurious to Sellers or
its
Subcontractors employees or to the materials to be installed. Prior to commencement of the
Services and during the performance of the Services, Customer shall, if requested by Seller,
provide Seller with sufficient data to assist Sellers supplier in evaluating the environmental
conditions at the work Site (including the presence of Hazardous Materials). Customer is
responsible for removing and disposing of the Hazardous Materials, including but not limited to
asbestos, prior to commencement of the Services.
Sensitive Equipment:
Prior to commencement of the Service, notify Seller of the presence
of any
sensitive equipment at the work Site (e.g., equipment sensitive to static electricity or light),
otherwise Seller will not be responsible for damage to the extent such damage could have been
prevented by such notice.
Repairs to Buildings:
Prior to the Start Date, make such alterations and repairs as are
necessary for
proper installation of items to be installed.
Openings in Buildings:
Prior to the Start Date, furnish suitable openings in buildings to
allow the
items to be installed to be placed in position, and provide necessary openings and ducts for cable
and conductors in floors and walls as designated on engineering drawings furnished by Seller.
Surveys:
Prior to Service start date furnish surveys (describing the physical
characteristics, legal
limitations and utility locations for the work Site) and a legal description of the Site.
Electrical Current, Heat, Light and Water:
Provide electric current for charging storage
batteries
and for any other necessary purposes with suitable outlets where work is to be performed; provide
temperature control and general illumination (regular and emergency) in rooms in which work is to
be performed or Products or other items stored, equivalent to that ordinarily furnished for similar
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
64
purposes in a working office; provide exit lights; provide water and other necessary
utilities for the
proper execution of the Services as feasible.
PCS System Utility Requirements:
Negotiate with the power and telephone companies or
comparable service providers for installation of the power and telephone facilities necessary for
proper operation of the Products and/or other items being installed. The type and quantity of such
facilities shall be subject to Sellers reasonable approval. Such approval shall be in accordance
with the Specifications. Customer shall have the telephone company or comparable service
providers provide, place, install, extend and terminate telephone
facilities into the PCS System;
line up and test the telephone company or comparable service providers facilities outside and
inside the PCS System; and provide to Seller copies of the test results prior to Sellers
commencing
integration testing of the PCS System.
Material Furnished by Customer:
New or used material furnished by Customer shall be in
such
condition that it requires no repair and no adjustment or test effort in excess of that normal for
new
equipment. Customer assumes all responsibility for the proper functioning of such material.
Customer shall also provide the necessary information for Seller to properly install such
material.
Furniture:
provide and install all furniture necessary for operator management of the 5ESS
Switch.
Floor Space and Storage Facilities:
Provide, during progress of the Services, suitable and
easily
accessible floor space and storage facilities (a) to permit storing major items of Products and
other
material closely adjacent to where they will be used, (b) for administrative and luncheon
purposes,
(c) for Sellers and its Subcontractors employees personal effects, and (d) for tools and
property of
Seller and its Subcontractors. Where the Service is to be performed outside of a building or in a
building under construction, Customer shall, in addition to the above requirements, as
appropriate,
permit or secure permission for Seller and its Subcontractors to maintain at the work Site,
storage
facilities (such as trailers) for Products, materials and other items and for tools and equipment
needed to complete the Service.
Watch Service:
For PCS, provide normal security (for cell sites, commercial alarms)
necessary to
prevent admission of unauthorized persons to building and other areas where installation Service
is
performed and to prevent unauthorized removal of the Products and other items. Seller will inform
Customer as to which storage facilities at the work Site Seller will keep locked; such storage
facilities will remain closed to Customers surveillance.
Use of Available Testing Equipment:
Customer shall make available to Seller: (1) the
maintenance test facilities which are imbedded in equipment to which the Product or other item
being installed will be connected or added, and (2) meters, test sets, and other portable
apparatus
that is unique to the item being installed. Sellers use of such test equipment shall not
interfere with
Customers normal equipment maintenance functions.
Hazardous Materials Cleanup:
At the conclusion of the Service, Customer shall be
responsible for
the cleanup, removal, and proper disposal of all Hazardous Materials present at Customers
premises, except for those Hazardous Materials brought onto the premises by Seller, subject to
Items To Be Furnished By Seller, below.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
65
Access to Existing Facilities:
Customer shall permit Seller reasonable use of such
portions of the
existing plant or equipment as are necessary for the proper completion of such tests as require
coordination with existing facilities. Such use shall not interfere with Customers normal
maintenance of equipment.
Grounds:
Customer shall provide access to suitable and isolated building ground as
required for
Sellers standard grounding of equipment. Where installation is outside or in a building under
construction, Customer shall also furnish lightning protection ground.
Requirements for Customer Designed Circuits:
Customer shall furnish information covering
the
proper test and readjust requirements for apparatus and requirements for circuit performance
associated with circuits designed by Customer or standard circuits modified by Customers
drawings.
Through Tests and Trunk Tests:
Customer shall make required through tests and trunk tests
to
other offices after Seller provides its notice of completion or notice of advanced turnover.
ITEMS TO BE FURNISHED BY SELLER:
The following items will be furnished by Seller (if required by the conditions of the particular
Service) and the price thereof is included in Sellers price for Service:
Hazardous
Materials Cleanup: At
the conclusion of the Services, Seller shall be responsible
for the
cleanup, removal, and proper disposal of all Hazardous Materials brought onto the premises by
Seller and not contemplated to remain on the premises after such completion of Service.
Protection of Equipment and Building:
Seller shall provide protection for Customers
equipment
and buildings during the performance of the Service and in accordance with Sellers standard
practices.
Method
of Procedure:
Seller shall prepare a detailed Method of Procedure
(MOP)
before
starting work on live equipment. Customer shall review the MOP and any requested changes shall be
negotiated. Customer shall give Seller written acceptance of the MOP prior to start of the work.
The following items will be furnished by Seller if requested by Customer, but Customer will be
billed and shall pay for them in addition to Sellers standard or firm quoted price for the
Services:
Protection of Buildings and Equipment:
Seller may provide protection of buildings and
equipment
in accordance with special practices of Customer differing from reasonable and prudent standards
of care.
Maintenance:
Seller shall maintain Products, Licensed Materials and other items from
completion
of installation until date of Acceptance.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
66
Locally Purchased Items:
Seller shall purchase items indicated by Sellers
Specifications as
needing to be purchased locally.
Readjusting Apparatus:
Seller may provide readjustment (in excess of that normally
required on
new apparatus) of apparatus associated with relocated or rewired circuits.
Cross-Connections (Other than to Outside Cable Terminations):
Seller may run or rerun
permanent
cross-connections in accordance with revised cross-connection lists furnished by Customer.
Handling,
Packing, Transportation and Disposition of Removed and Surplus Customer
Equipment:
Seller may pack, transport, and dispose of surplus and removed Customer equipment as agreed by
the Parties.
Premium Time Allowances and Night Shift Bonuses:
Seller may have its Services personnel
work
premium time and night shifts to the extent that Seller may deem such to be necessary to effect
the
required coordination of installing and testing operations or other Services because of Customers
requirements.
Emergency Lighting System:
Seller may provide new emergency lighting system (other than
the
original ceiling mounted stumble lighting) to satisfy illumination and safety needs of Products of
certain heights.
4.5 WORK DONE BY OTHERS
If Customer or its other vendors or contractors fail to timely complete the Site readiness,
or if
Customers or its other vendors or contractors work interferes with Sellers performance, Seller
promptly shall so notify Customer and, if appropriate under the circumstances, Seller may initiate
a
Change Order in order to extend on a day-for-day basis the scheduled completion date of Sellers
Services under the applicable Purchase Order as reasonably necessary to compensate for such
delay or interference.
4.6 SELLERS RIGHT TO RE-DEPLOY RESOURCES
If, in connection with its obligation to perform Services under this Agreement, Seller has
allocated engineering, installation and/or other resources to such performance and Customer or
its contractor fails to perform or delays performance of Customers obligations that are pre-
conditions to the completion of Sellers performance, or Customer or its contractor interferes
with Sellers performance, the scheduled completion date of Sellers performance shall be
extended as necessary to compensate for such delay, failure or interference. Customer shall
promptly notify Seller whenever it anticipates or experiences such a delay, failure or
interference. If such delay, failure, or interference continues for *** or more, Seller
shall have the right to de-mobilize and re-deploy to other work any or all of its resources idled
by
such a delay, failure or interference. If Seller does de-mobilize and re-deploy its resources,
Seller will re-mobilize its resources to continue with its performance under this Agreement
within a commercially reasonable time after Customer or its contractor completes Customers
obligations and Customer has notified Seller of such completion.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
67
4.7 SERVICES WARRANTIES
(a) General.
Seller warrants to Customer that all Services will be performed in a
professional, careful and workmanlike manner and in accordance with Sellers Specifications,
those
specifications referenced in the Purchase Order and/or in accordance with accepted practices
in the
telecommunications industry and the community in which such Services are performed, using
material free from defects except where such material is provided by Customer. The Warranty
Period for a particular Service will be set forth in the applicable statement of work. If
the
statement of work does not specify a Warranty Period, then the Warranty Period for the Service
described there will be *** from the date on which the Service has been completed
and
accepted by Customer. If Services are not performed in accordance with the provisions of this
Section, and if Customer so notifies Seller within the applicable Warranty Period, Seller
shall
correct the defective or nonconforming Service without charge within a reasonable period of
time
thereafter. If not corrected within such reasonable period of time after Customers notice,
Seller
shall issue a credit to Customer equal to the amount paid by Customer for the defective or
non-
conforming Services.
(b) Disclaimer.
THE SERVICES WARRANTIES SET FORTH ABOVE OR
ELSEWHERE IN THIS AGREEMENT OR IN ANY WRITING SIGNED BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS PROVIDED IN THIS SUBSECTION, CUSTOMERS SOLE AND EXCLUSIVE
REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLERS OBLIGATION
TO MAKE CORRECTIONS OR GIVE A CREDIT AS SET FORTH ABOVE IN THIS
SECTION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF SELLER
FAILS TO CORRECT OR CREDIT AS SET FORTH ABOVE WITHIN A REASONABLE
TIME PERIOD, CUSTOMER MAY, AT ITS OPTION, DECLARE A SELLER EVENT OF
DEFAULT.
(c) Additional Warranties.
The Parties may negotiate additional Services-related
warranties on a case-by-case basis.
ARTICLE V
ENTIRE AGREEMENT AND EXECUTION
5.1 ENTIRE AGREEMENT
Attachments
A
through
M
are attached to this Agreement and incorporated by this reference. The
terms and conditions contained in this Agreement, any subordinate agreements, and Purchase
Orders accepted pursuant to this Agreement or any subordinate agreement supersede all prior oral
or written understandings between the Parties with respect to the subject matter thereof and
constitute the entire agreement of the Parties with respect to such subject matter. Such terms and
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
68
conditions shall not be modified or amended except by a writing signed by authorized
representatives of both Parties.
5.2 TERMINATION OF EXISTING AGREEMENT
Except as
expressly provided in this Section and in
Attachments A and C,
the 2002 Contract
shall terminate as of the Effective Date and have no further force or effect. From and after the
Effective Date, all products and licensed materials acquired by Customer pursuant to the 2002
Contract shall be treated as Products and Licensed Materials acquired under this Agreement and
shall be subject in all respects to the terms and conditions of this Agreement; provided, however,
that: (a) any warranty periods set forth in the 2002 Contract shall be applicable to the products
and licensed materials purchased or licensed thereunder; (b) the prices, discounts and credits set
forth in this Agreement shall not retroactively apply to the products, licensed materials and
services purchased, licensed, delivered and performed under the Existing Agreement prior to the
Effective Date;, ***; and (d) all amounts due to Seller under the 2002 Contract (whether or not invoiced
and whether or not disputed) will continue to be owed under this Agreement. Purchase Orders
for services placed by Customer under the 2002 Contract will be deemed to have been placed
under this Agreement to the extent the services will be performed on or after the Effective Date,
and the terms and conditions of this Agreement shall govern the rights, duties and obligations of
the Parties with respect to such services performed on or after the Effective Date, and shall
replace and supersede the terms and conditions of the 2002 Contract with respect thereto. The
terms and conditions of the 2002 Contract will continue to govern the rights, duties and
obligations of the Parties to the extent that services were performed under such Purchase Orders
prior to the Effective Date of this Agreement. All Information disclosed by the Parties under the
Existing Agreement shall remain subject in all respects to the terms and conditions thereof.
(signature page follows)
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
69
IN WITNESS WHEREOF,
the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
|
LUCENT TECHNOLOGIES INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linguist
|
|
|
|
By:
|
|
/s/ Steven R. Marino
|
|
|
Name:
|
|
Roger D. Linguist
|
|
|
|
Name:
|
|
Steven R. Marino
|
|
|
Title:
|
|
Pres. & CEO
|
|
|
|
Title:
|
|
CTVP
|
|
|
Date:
|
|
June 6, 2005
|
|
|
|
Date:
|
|
June 6, 2005
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
73
DRAFT Subject to legal review and approval by the Parties
Attachment A
*** PRICING
1. GENERAL
***
With respect to Products, Licensed Materials and Services not specifically identified in this
Attachment, the Parties agree to negotiate prices for such Products, Licensed Materials and
Services in good faith and agree in writing on such prices. Notwithstanding, the following are
not included in the Attachment A pricing:
|
§
|
|
Taxes, domestic transportation, hauling, hoisting, and warehousing;
|
|
|
§
|
|
Engineering site visits (if required);
|
|
|
§
|
|
Extraordinary installation items helicopters, cranes, etc.;
|
|
|
§
|
|
Power/battery plant, additions, growth and or replacements;
|
|
|
§
|
|
Transmission/networking equipment, additions, growth and or replacement;
|
|
|
§
|
|
Antennas/tower, additions, growth modifications;
|
|
|
§
|
|
Building modifications/construction;
|
|
|
§
|
|
Optional hardware items associated with select Lucent Software (e.g. OTA,
SMS,AutoPace, billing platforms, etc.);
|
|
|
§
|
|
All charges associated with non-Standard Intervals;
|
|
|
§
|
|
Any other items not specifically quoted in this Attachment.
|
Unless Attachment C applies, pricing for Products and Licensed Materials not listed in
Attachment A will (a.) not exceed pricing for Products and Licensed Materials listed in
Attachment A (taking into consideration all applicable discounts and incentives) that are
substantially similar in Fit, Form, Function, and capacity; and (b.)
***.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
DRAFT Subject to legal review and approval by the Parties
2. EXISTING MARKET AND NEW MARKET PRICING
EXISTING MARKETS
***
NEW MARKETS
***
New Market Pricing
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
DRAFT Subject to legal review and approval by the Parties
***
3. ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
DRAFT Subject to legal review and approval by the Parties
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
DRAFT Subject to legal review and approval by the Parties
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
DRAFT Subject to legal review and approval by the Parties
|
i.
|
|
Base Station Pricing
|
|
|
ii.
|
|
Flexent Mobility Manager (FMM) Pricing
|
|
|
iii.
|
|
Access Manager (ECP
OMP-FX) Pricing
|
|
|
iv.
|
|
Messaging Pricing
|
|
B.
|
|
EXISTING MARKET PRICING
|
|
i.
|
|
Base Station Pricing
|
|
|
ii.
|
|
5ESS / Flexent Packet Switch (FPS) Pricing
|
|
|
iii.
|
|
Flexent Mobility Manager (FMM) Pricing
|
|
|
iv.
|
|
Access Manager (ECP / OMP-FX) Pricing
|
|
|
v.
|
|
FMS-Based EVDO Radio Network Controller (RNC) Pricing
|
|
|
vi.
|
|
FBP EVDO Radio Network Controller (RNC) Pricing
|
|
|
vii.
|
|
Gateway and Lucent SoftSwitch Pricing (viib. Lucent Network Controller and
Lucent Network Gateway Pricing)
|
|
|
viii.
|
|
Optional Software & BRSS (Base Release System Software) Pricing
|
|
|
ix.
|
|
PDSN Data Equipment Pricing
|
|
|
x.
|
|
Juniper Equipment Pricing
|
|
|
xi.
|
|
Riverstone Equipment Pricing
|
|
|
xii.
|
|
Dorado Pricing
|
|
|
xiii.
|
|
ATM Soft Handoff (SHO) and Integrated Network Solutions (INS) Pricing
|
|
|
xiv.
|
|
Wireless Intelligent Network (WIN) Pricing
|
|
|
xv.
|
|
Messaging Pricing
|
|
|
xvi.
|
|
NOS Pricing
|
|
|
xvii.
|
|
Training Pricing
|
|
|
xviii.
|
|
Documentation Pricing
|
|
|
xix.
|
|
Services Pricing
|
Appendix 1 Dorado Pricing
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
DRAFT Subject to legal review and approval by the Parties
4.A NEW MARKET PRICING
For New Markets, the following pricing will be honored for the Initial Term per the
provisions listed herein as well as in Sections 1, 2 and 3 above. For any Product or Software
not specifically denoted in Section 4.A New Market Pricing below, the Existing Market pricing
as defined in Section 4.B will apply.
i. Base Station Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Modcells
|
|
|
***
|
|
|
|
***
|
|
|
***
|
Channel Elements
|
|
|
***
|
|
|
***
|
|
***
|
Power / Batteries
|
|
|
***
|
|
|
|
***
|
|
|
***
|
***
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
New Market Modcell 4.0b Primary 1
st
Carrier / 3 Sector (6 sector capable) w/
|
|
Mod 4.0b
|
|
Duplex Filters:
|
|
PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 2
nd
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 3
rd
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
Not offered
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
DRAFT Subject to legal review and approval by the Parties
NEW MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 4
th
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 5
th
Carrier Growth on 4.0b PC:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 6
th
Carrier Growth on 4.0b PC:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
New Market 7
th
- 11
th
Carrier Growth Kits for Modcell
4.0b will be Priced at ***
|
|
|
|
|
New Market 7
th
Carrier Growth Modcell 4.0 Growth Cabinet for 4.0
|
|
Mod 4.0
|
|
Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 8
th
Carrier Growth on 4.0 GF-1
|
|
with
|
|
|
with
|
|
|
with
|
|
with a 4.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 9
th
Carrier Growth on 4.0 GF-1 with a 4.0
|
|
with
|
|
|
with
|
|
|
with
|
|
PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
New Market 10
th
and ll
th
Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed
above.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
DRAFT Subject to legal review and approval by the Parties
NEW MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 2
nd
V4 BTS
w/ 2 3G1X Cxr and 1
|
|
Mod 2.0 &
|
|
|
|
|
|
|
|
|
|
|
Redeployed
|
|
EVDO
Cxr (B2B
) Note
:
|
|
Mod 3.0
|
|
|
C4.0
|
|
|
Mod 4.0
|
|
|
Price
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
|
***
|
|
Note: ***
ii. Flexent Mobility Manager (FMM) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Initial Launch New Market FMM HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Initial Launch New Market FMM SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
iii. Access Manager (ECP/ OMP-FX) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Initial Launch New Market Axmgr
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
|
|
|
|
|
|
|
|
***
|
|
iv. Messaging Pricing:
Please refer to Attachment L for Messaging pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
DRAFT Subject to legal review and approval by the Parties
4.B EXISTING MARKET PRICING
i. Base Station Pricing
Discount Table
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Modcells
|
|
|
***
|
|
|
|
***
|
|
|
***
|
Channel Elements
|
|
|
***
|
|
|
***
|
|
***
|
Power / Batteries
|
|
|
***
|
|
|
|
***
|
|
|
***
|
***
|
|
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
Modcell 3.0 / 4.0 / 4.0b Primary & Modcell 2.0 / 3.0 / 4.0 / 4.0b Growth Kit Pricing:
|
|
|
|
|
Modcell 4.0 / 4.0b Primary 1
st
Carrier / 3 Sector w/ Duplex Filters:
|
|
Mod4.0/4.0bPC
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
|
|
|
|
Sub-Total
|
|
***
|
|
|
***
|
|
***
|
|
|
|
|
|
|
Total Model Price
|
|
***
|
|
|
|
|
|
|
|
Modcell 3.0 Primary 1
st
Carrier / 3 Sector w/
|
|
|
|
Duplex Filters:
|
|
Mod 3.0 PC
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
|
|
|
|
Sub-Total
|
|
***
|
|
|
***
|
|
***
|
|
|
|
|
|
|
Total Model Price
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
DRAFT Subject to legal review and approval by the
Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
Mod 4.0
|
|
Compact Modcell 4.0 Primary 1
st
Carrier / 3 Sector w/ Duplex Filters:
|
|
Compact PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
nd
Carrier Growth w/ no additional
|
|
|
|
|
|
|
|
|
|
|
|
|
Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0/ 4.0b
|
|
|
C4.0
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
rd
Carrier Growth w/ no additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0/ 4.0b
|
|
|
C4.0
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
***
|
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
th
Carrier Growth w/ no additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0/ 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
Not offered
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
4
th
Carrier Growth Modcell 4.0 Growth Cabinet for
|
|
Mod 4.0
|
|
2.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
4
th
Carrier Growth Modcell 4.0 Growth Cabinet for
|
|
Mod 4.0
|
|
3.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
DRAFT Subject to legal review and approval by the
Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
5
th
Carrier Growth on 4.0 / 4.0b PC or on 4.0
|
|
with
|
|
|
with
|
|
|
|
|
GF-1 with 2.0 PC / 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 /4.0b
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
with
|
|
|
with
|
|
5
th
Carrier Growth on 2.0 GF-1 or 3.0 GF-1:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
th
Carrier Growth on 4.0 / 4.0b PC or on 4.0 GF-1
|
|
with
|
|
|
with
|
|
|
|
|
with 2.0 PC / 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 / 4.0b
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
with
|
|
|
with
|
|
6
th
Carrier Growth on 2.0 GF-1 or 3.0 GF-1:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
7
th
11
th
Carrier Growth Kits for Modcell 4.0b will be
Priced at ***.
|
|
|
|
|
|
|
Mod 4.0
|
|
7
th
Carrier Growth Modcell 4.0 Growth Cabinet for
4.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
7
th
Carrier Growth on
|
|
with
|
|
|
with
|
|
4.0 GF-1 with a 2.0 PC or 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
8
th
Carrier Growth on 4.0 GF-1 with a 2.0 PC /
|
|
with
|
|
|
with
|
|
|
with
|
|
3.0 PC/ 4.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9
th
Carrier Growth on 4.0 GF-1 with a 2.0 PC / 3.0
|
|
with
|
|
|
with
|
|
|
with
|
|
PC/ 4.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
10
th
and 11
th
Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mod 4.0 and
|
|
|
Redeployed
|
|
V3 for 2
nd
Half of BTS w/ 1 3G1X Cxr (B2B):
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
C4.0
|
|
|
Price
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
***
|
|
|
Not offered
|
|
|
***
|
|
Note: ***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0 EVDO Carrier Upgrade
Note
:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note: ***
6-Sector Upgrade Not to Exceed Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0b
6-Sector Upgrade
(3G1X voice only,
|
|
|
|
|
|
|
|
|
up to 3 Cxrs) with
64 CE + RTU
Note
:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note: Applicable only to those Modcell 4.0bs shipped as 6-sector capable.
Software will be available in June of 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to
develop and deliver with general availability in commercially reasonable quantities
6-sector 3G1X voice-only upgrades for up to 3 carriers in a Modcell 4.0b cabinet by June
30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade in a
timely manner.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
DRAFT Subject to legal review and approval by the
Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0b
6-Sector EVDO Upgrade
|
|
|
|
|
|
|
|
|
with 64 CE
+ RTU (single
carrier)
Note
:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note: Applicable only to those Modcell 4.0bs shipped as 6-sector capable. Software will be available upon GA
of November 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to
develop and deliver with general availability in commercially reasonable quantities 6-sector
single carrier, EvDo upgrades in a Modcell 4.0b cabinet by November 30, 2006, provided
Customer cooperates with Seller to conduct the FOA for such upgrade in a timely manner.
EVDO Revision 0 to EVDO Revision A Upgrade Pricing
***
***
Please note the following:
|
-
|
|
***
|
|
|
-
|
|
Pricing based on current product roadmap and does not constitute a commitment by
Seller
to produce, develop, make available, or manufacture IA.
|
|
|
-
|
|
Customer responsible for IA antenna, miscellaneous cabling, and other potential items
required for IA upgrade
|
The product roadmaps outlined above for: (1) EVDO Rev A, and; (2) Intelligent Antenna are
provided by Seller solely to inform Buyer of Sellers current plan of record for the relevant
product(s) and both parties to this Agreement hereby agree that such information does not form
a commitment of any kind on either party in relation to this Agreement but represents Sellers
good faith estimate as of the Effective Date. The terms and conditions, including pricing, of
any features or functionalities that may be described in the product roadmap that are
ultimately released, made generally available, or provided under this or subsequent agreements
are subject to future negotiations and future agreement on the terms and conditions which would
govern any sale. There are no penalties, liquidated damages or other remedies associated with
changes to the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
DRAFT Subject to legal review and approval by the
Parties
EXISTING MARKETS PRICING
product roadmap including cancellation of any specific feature or functionality or
delay in the timing of development.
|
|
|
|
|
Channel Element (CE) Pricing:
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kits to Maintain 4 Hour Battery
Backup
|
|
QUANTITIES
|
Description
|
|
List
|
|
Net
|
|
3S1C
|
|
3S2C
|
|
3S3C
|
|
3S4C
|
|
3S5C
|
|
3S6C
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
TOTAL Incremental List Price
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
TOTAL Net Incremental Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
*Note: ***
ii.
5ESS / Flexent Packet Switch (FPS) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
5ESS / FPS
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
iii.
Flexent Mobility Manager (FMM) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FMM HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FMM SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
|
|
|
|
|
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
iv. Access Manager (ECP / OMP-FX) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Axmgr
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
|
|
|
|
|
|
|
|
***
|
|
v. FMS Based EVDO Radio Network Controller (RNC) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FMS Based RNC HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FMS Based RNC SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
|
|
|
|
|
|
|
|
***
|
|
vi. FBP EVDO Radio Network Controller (RNC) Pricing:
***
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FBP Based RNC HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FBP Based RNC SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note:
Requires OMC-RAN.
vii. Gateway and Lucent Soft Switch Pricing:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unit List
|
|
Unit Net
|
|
|
Comcode
|
|
Product Description
|
|
Price
|
|
Price
|
|
Discount
|
300724218
|
|
VOICE MAIL INTERFACE ACCESSORY PACK
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724283
|
|
PLEXVIEW ADVANCED TRAFFIC COLLECTION SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724366
|
|
PLEXUS 9000 CUSTOMER DOC CDROM
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724374
|
|
PLEXVIEW EMS DOCUMENTATION CDROM
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724382
|
|
PLEXVIEW BILLING & TRAFFIC COLLECTION G
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300741238
|
|
PLEXVIEW FLOW-THRU PRO & PM XML API
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724317
|
|
PLEXVIEW AMA PLUS BILLING SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723541
|
|
P9000 CHASSIS & COMM
EQUIP PROTECT W/SP3
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723590
|
|
8XDS3/STS-1 IOM WITH TONE DETECT
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723657
|
|
8XDS3/STS-1 PROTECT IOM, W/TONE DETECT
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723897
|
|
PLEXUS OPERATING S/W
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723913
|
|
SS7 S/W PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723947
|
|
TDM TRUNK INTERFACE FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724036
|
|
ENHANCED ROUTING S/W PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724127
|
|
IS-41D GATEWAY MSC SW FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724184
|
|
SMDI FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724242
|
|
PLEXVIEW ELEMENT MANAGER LICENSE
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724291
|
|
PLEXVIEW ADV REPORTING NAMED USER LICEN
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300729688
|
|
DS1 IOM KIT, 87-1002-A
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724259
|
|
PLEXVIEW S/W BUNDLE PER EMS SERVER
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724267
|
|
PLEXVIEW ADVANCED REPORTING SW PER EMS
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Maintenance for LCS Gateway
products will be charged on a per configuration basis.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
viib Lucent Network Controller and Lucent Network Gateway:
Pricing for the LNC and LNG shall be negotiated in good faith by the Parties at a
later date.
viii. Optional Software & BRSS (Base Release System Software) Pricing:
***
ix.
|
|
PDSN Data Equipment Pricing:
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
PDSN, including
AAA SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
x. Juniper Equipment Pricing
Discount Table
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
DRAFT
Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
Hardware
|
|
|
***
|
|
|
|
***
|
|
Software
|
|
|
***
|
|
|
***
|
xi. Riverstone Equipment Pricing
Discount Table
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
Hardware
|
|
|
***
|
|
|
|
***
|
|
Software
|
|
|
***
|
|
|
***
|
xii. Dorado Pricing
Please see Appendix 1 for current Dorado Price Book.
|
§
|
|
***
|
|
|
§
|
|
Dorado items are orderable with Juniper and/or Riverstone and Lucent gear
|
|
|
§
|
|
All Customer requests for Dorado Quotes must go through the current quoting process.
|
xiii. ATM SHO and Integrated Network Systems (INS) Pricing
Discount Table
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
PSAX 4500
|
|
|
***
|
|
|
|
***
|
|
CBX 500 Hardware
|
|
|
***
|
|
|
|
***
|
|
CBX 500 RTU Fees
|
|
|
***
|
|
|
|
|
|
CBX 3500 Hardware
|
|
|
***
|
|
|
|
***
|
|
CBX 3500 MX0X RTU Fee
|
|
|
***
|
|
|
|
|
|
CBX 3500 Other RTU Fees
|
|
|
***
|
|
|
|
|
|
Pricing for other INS materials shall be negotiated in good faith by the Parties at a
later date.
xiv. Wireless Intelligent Network
(WIN)
Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OI
|
Material/Software/Service
|
|
List
|
|
Spares
|
|
Net Effective
|
|
Comcode
|
ECS 900 4 Tl Channelized Links Platform Software RTU
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300538014
|
|
ECS 900 Base Configuration (1 Media Unit)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300517828
|
|
ECS 900 Base Spares
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300568722
|
|
eCS 900 Telecom Server Chassis e/q with 4 Tl
Channelized Links
distributed over 2 Telecom Server Units. (These 4
Tl Channelized
Links equate to 32 low speed SS7 links).
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300517901
300517877
|
|
ECS, Release 24 Operating System & Utilities RTU
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300567641
300567658
|
|
ECS900 SRU (per eCS)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703188
|
|
eMRS SRU (per eMRS)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703600
|
|
ESM SRU (J6750)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703196
|
|
eSM, RTU for up to 10 AHE/MAS connections
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
300570728
|
|
LICENSE, RIGHT TO USE (
per subscribe
r), eCS R24,
ANSI-41
SHLR 9.0 & Authentication Center (AC)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300723194
300723160
300723111
300723061
300723111
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
DRAFT Subject to legal review and
approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OI
|
Material/Software/Service
|
|
List
|
|
Spares
|
|
Net Effective
|
|
Comcode
|
LICENSE, RIGHT TO USE, SHLR 8.0 or Later,
Support MiRing (per sub)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300723012
|
|
Lucent IN Applications SRU (MiRing & SHLR, 1 million
to 5 million subscribers) (per subscriber)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703519
|
|
MiRing subscriber-RTU (per 1,000 subscriber RTU)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300689494
|
|
R24 eServices Intelligent Network On-line Platform
Documentation CD Rom
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
SHLR Integration (eCS 900, eSM) for possible second
pair expansion
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
SOFTWARE, ON TAPE, eCS R24, SHLR 9.0 - New Install
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300589629
|
|
Spare 8GB Fully Populated Factory System Tested
Memory Board (eCS 900)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300538089
|
|
Spare, SCSI 36GB Boot disk
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300707486
|
|
SRU Integration Services (SHLR solution applications)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
SRU Integration Services (SHLR solution platforms)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
LICENSE, RIGHT TO USE, SHLR 8.0 or Later, Over The
Air Parameter Administration (OTAPA) (per 1,000
subscribers)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300722980
|
|
RTU R23 - R24 - SNMP OA&M Data Collection Interface
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300570074
|
|
SW & RTU for Performance Engineering Tools R24
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300566684
|
|
HARDWARE KIT
FOR EMRS R24,R25, SUNBLADE LMT+ REFR WS
WITH ONE MONITOR
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300787512
|
|
EQMT TO PROVIDE FOR BASE CABINET PLUS FIRST EMRS
CHASSIS PROVISIONING (TS1) AND SECOND EMRS UNIT AT
TS0, 30 INCH DEEP CABINET
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679735
|
|
SL-CAB-HWKIT, 30INCH,eMRS
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679776
|
|
FI-CAB-BASE, 30INCH,eMRS
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679719
|
|
FRAMEWORK, ASSEMBLY, WIRING & COMMON EQUIPMENT TO
PROVIDE ONE COMPACT PCI 30 INCH EMRS CABINET FOR
FIRST EMRS CHASSIS PROVISIONING (TS1)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679727
|
|
CIRCUIT PACK, QUAD SS7 INTERFACE CARD AND Tl PORTS
(408385482)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300326857
|
|
CIRCUIT
PACK, CPU, DUAL P3, 1Ghz CPU (408786895);
CIRCUIT PACK, CPU 1Ghz RTM (408790186)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590551
|
|
CIRCUIT PACK, ALARM BOARD2 (408802312)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590759
|
|
CIRCUIT PACK, MEDIA BAY MODULE (408403715)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300288271
|
|
SPARE, CIRCUIT PACK, SCSI DATA DISK DRIVE, 36GB
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300736790
|
|
CIRCUIT PACK, POWER ENTRY MODULE (408403681)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300288255
|
|
NMS CG6500
8-span El/71 VOIP board card, 2
10/100BaseT Network I/O (note: comcode 300590676
maps into 408781029-front card & 408761153 -RTM
card in the eMRS H400-717 drawing)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590676
|
|
CIRCUIT PACK , MULTI-FUNCTION SYSTEM I/O CARD,
ETHERNET CARD AND SCSI INTERFACE CARD (408641744);
CIRCUIT PACK, MFIO RTM (408532232)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300326832
|
|
eSM, RTU for 20K TPH performance
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278173
|
|
eSM, RTU for up to 10 eMRS connection
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300277951
|
|
eSM, RTU for 4 eCS/SCP connection
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278058
|
|
eSM, RTU for 50K TPH performance
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278207
|
|
Tl Channelized Links Spare
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300618964
|
|
Note: ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
19
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xv. Messaging Pricing:
Please refer to Attachment L for Messaging pricing.
Order Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term of
|
|
|
|
|
|
|
|
|
|
|
|
|
Order
|
|
|
|
|
|
Comcode # and other Description
|
|
Service or
|
|
|
|
|
|
|
|
|
|
Extended
|
|
|
Type
|
|
Comcode #
|
|
(E.g. Level of Support, Upgrades Included, etc.)
|
|
License
|
|
Qty
|
|
Fee
|
|
Fee
|
1
|
|
SW
|
|
|
108375494
|
|
|
NetminderNTP RTU (One time Right-to-use)
Software License
List Price: *** per MSC
MetroPCS Discount Price *** per MSC
|
|
One time
|
|
|
1
|
|
|
***
***
|
|
***
***
|
2
|
|
Training
|
|
OS3326
|
|
OS3326 NTP System User & Administration
Training (4 days, 8 students)
Instructor T&L not
included
|
|
One time
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
3
|
|
SW
|
|
|
300660834
|
|
|
3rd Party SW: Times Ten (one per server)
|
|
One time
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
4
|
|
SW
|
|
|
300660842
|
|
|
3
rd
Party SW: Borland VisiBroker
(one per server)
|
|
One time
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
5
|
|
SW
|
|
|
300660826
|
|
|
3
rd
Party SW: NTP Oracle RTU per CPU
|
|
One time
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
6
|
|
PS
|
|
|
108087289
|
|
|
LWS Services: IPA, install, configuration (one
server)
|
|
One time
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
7
|
|
Annual Maint.
|
|
|
300012655
|
|
|
24X7 RTS-Remote Technical Support, (includes
Software Updates, Upgrade for Core, Web Site
Access)
***
|
|
annual
|
|
|
1
|
|
|
***
|
|
|
|
***
|
|
|
Term for Software Support Services:
Any Software support Service charges
stated herein shall have an initial, non-cancelable term of ***,
commencing upon the delivery of the Software (Initial Support Term). Software
support Services will be provided in accordance with Sellers standard Statement
of Work (SOW) for such Services. Customer may access and view these SOWs and
their associated terms and conditions at Sellers web site address
www.lucent.com/support.
Seller Hardware:
In the event that the Software is utilized on Seller-provided
server Products, Customer will provide Seller with reasonable access for
installation and maintenance of Seller-owned Products and Customer agrees that
title to such Product will remain with Seller at all times. Upon termination of
the license utilizing Seller owned Products, Customer shall return such Products
to Seller within 15 days of such termination or Seller may invoice, and Customer
shall pay, the then current value of the Products retained.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
20
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xvii. Training Pricing:
Training will be provided in accordance with Sellers standard training program at
then-current rates. For more information please refer to Attachment B. A BP99-Form will
need to be filled out from time to time.
xviii. Documentation Pricing:
Documentation will be provided in accordance with Sellers standard documentation
program at then-current rates. For more information please contact CIC 888-582-3688 or
www.lucentdocs.com.
Customer Code = DK
xix. Services Pricing:
Please refer to Attachment J for Services pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
21
DRAFT Subject to legal review and approval by the Parties
APPENDIX 1 DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
22
DRAFT Subject to legal review and approval by the
Parties APPENDIX 1 DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
23
DRAFT Subject to legal review and approval by the Parties
APPENDIX 1 DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
24
Attachment B
TRAINING
1. Introduction
Lucent
training courses (the
Training Courses
)
are developed in accordance with systematic
training development processes. The Training Courses are combined into a comprehensive training
program that is oriented toward job functions associated with operating and managing various
Products and Software sold by Lucent. The Training Courses utilize classroom lectures with
audio/video training aids, PC-based training, and/or practical hands-on experience to assure that
students acquire theoretical as well as practical knowledge.
2. Training ***
a. ***
b. Training will consist of Lucents standard training for Customers personnel in the planning for
and operation and maintenance of Products and Software provided under the Agreement. ***
3. Training Courses
The Training Courses for which Customer shall be eligible, based upon Customers
current Product
and Software demands, shall be those set forth in the course description schedule set forth below
in this
Attachment B
(the
Course Description
Schedule
).
From time to time during the Term, Lucent
may offer to Customer new or different Training Courses which are not identified on the Course
Description Schedule. In such event, Lucent shall provide Customer with a list of the new or
different Training Courses at the time such Training Courses become generally available to Lucents
customers. In the event that Customer purchases (or licenses, in the case of Software) other
Products or Software during the Term for which Lucent provides Training Courses, Lucent shall
provide Customer with a list of such available Training Courses at the time of Lucents delivery of
the Product or Software. The Course Description Schedule
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
shall be amended once annually, on or before December 1st of the then-current year of the
Term, to identify any new or different Training Courses for which Customer shall be eligible.
4. Training Contact Information
Website:
Customer has the option to access an up-to-date list of Training Courses available for Products
and Software and register for training by accessing the following
website:
https://training.lucent.com/SabaWeb
Open Enrollment Classes (Lucent Training Facility):
***
Customer Site Training and Scheduling Training:
Tamara Birdsong (Lucent Training Coordinator)
Phone: ***
Email: ***
5. Training Terms and Conditions
a. The following terms and conditions apply to Training Courses provided either at a Lucent
training center or at a Customer location:
(1) The price for the Training Course includes all tuition and standard course materials.
(2) Student requests for Lucents training publications will be satisfied from materials that are
included in the Training Course. Requests for materials involving Products not included in the
Training Course will be forwarded to both Customers representatives and the Lucent Account
Executive for negotiation. The cost of non-Lucent training publications will be the students
responsibility.
(3) All training will be conducted in English. Written materials will be provided in English.
(4) If an interpreter is necessary, the length and cost of the training may increase; any such
increases shall be identified by Lucent in advance.
(5) Scheduled Training Courses can be cancelled by Customer fifteen (15) calendar days in advance
of the start of such Training Course without any Customer liability for such cancellation. Except
for cancellations caused by events beyond Customers reasonable control, cancellations that occur
five (5) to fourteen (14) calendar days before the start of a Training Course will result in a
cancellation fee to Customer ***; provided, however, that if Seller is able to secure attendance by another
person to fill such seat, there will be no cancellation fee. Except for cancellations caused by
events beyond Customers reasonable control, cancellations that occur zero (0) to five (5) calendar
days before the start of a Training Course will result in a cancellation
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
fee to
Customer of *** for such Training Course;
provided, however, that if Seller is able to secure attendance by another person to fill such
seat, there will be no cancellation fee. Cancellation fees shall first be deducted from Customers
Training Credits. In the event that Customer has insufficient Training Credits to cover all
cancellation fees, Customer shall pay Lucent the balance.
(6) Lucents Training Courses are constantly being revised and updated; therefore, the duration,
pricing and exact content of the Training Course may change from those described in this
Attachment B
, including in the Course Description Schedule.
b. The following additional terms and conditions shall apply to Training Courses conducted only at
a Lucent training center location (
Lucent Training
Center
):
(1) Student manuals are part of the tuition and become the property of the student upon completion
of the applicable Training Course. All training aids, classroom documentation, software, and
equipment owned and supplied by Lucent will remain Lucents property upon completion of the
applicable Training Course.
(2) A minimum class size of eight (8) students is required to schedule a Customer-dedicated
hands-on class. A minimum class size of twenty (20) students is required to schedule a
Customer-dedicated, lecture-only class conducted at a Lucent Training Center. If Customer does not
wish to schedule a dedicated class, the designated number of students will be placed in existing
classes.
(3) Customer will be responsible for all student lodging and living expenses and all international,
inter-city transportation, and transportation from the place of lodging to the training site unless
otherwise stated. Lucent will assist in the logistics of obtaining lodging, and will also assist
students in arranging transportation from the airport to the place of lodging.
(4) The schedules at Lucents Training Centers vary from five (5) to six (6) days a week, eight (8)
hours per day. Students will be expected to attend classes as scheduled at the Lucent Training
Center. This may include additional hours as may be required to maintain the progress of a given
class.
(5) Customer should be aware that circumstances may dictate that days where no applicable training
is offered (not including weekends) may occur during the duration of the students stay at a Lucent
Training Center. There will be no tuition charge for non-training days; however, all student living
expenses will be Customers responsibility.
(6) No training will be scheduled on holidays normally celebrated at the Lucent Training Center.
(7) If the students plan personal travel on days off, the Lucent Training Center would appreciate
knowing their destination in case of emergency. The cost of personal travel is the responsibility
of the student.
(8) All students will receive a student guide on the first day of the Training Course. Any
additional training material is distributed at appropriate intervals during the Training Course.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
c. The following additional terms and conditions shall apply to Training Courses conducted
only at a Customer location:
(1) Customer shall be required to provide suitable facilities and all the equipment necessary for
on-site training (including test equipment). This equipment must be free of trouble and working,
but not in service. Instructor time and related travel expenses will be required to set up
Customers training site so that the equipment is configured like that in Lucents training lab and
any related costs or fees to be paid by Customer therefor shall be fixed and set forth as separate
line items in an agreed upon statement of work. This shall be required for each hands-on Training
Course taught at Customers training site.
(2) Customer shall be responsible for all reasonable out-of-pocket instructor travel and living
expenses, and the expenses associated with the shipping of Training Course material and equipment;
provided, however, that such travel shall be at coach fares and Customer shall not be responsible
for any entertainment expenses.
(3) ***
(4) Customer assumes the risk of loss, including theft and damage, to the Training Course-related
equipment Lucent provides while such equipment is in the possession or control of Customer, but not
during its delivery or transportation to Customer.
6. Prerequisites
It is assumed that the training population will have previous experience in, and possess a basic
fundamental knowledge of, transmission and switching theory of operation. Further prerequisites
are stated in the Training Course descriptions.
7. Training Implementation
a. An implementation plan for the training program will be developed after the Effective Date. This
plan will identify the specific tasks that will be performed by Lucent (including recommended
Training Courses) and the proper sequence in which to implement such tasks throughout the Term.
Firm schedule dates for the Training Courses will be agreed to by the Parties after the Effective
Date.
b. Special responsibilities and assumptions for the Parties with regards to training will also be
noted in the implementation plan. This plan will assist in ensuring that operations are commenced
and completed on time as required by the Agreement and will be mutually agreed to by Customer and
Lucent.
8. Training Assumptions
Customer shall supply the personal computers associated with the PC-based training conducted
on-site.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
9. Conflict
In the event there is any conflict between the terms and conditions of this
Attachment B
and the
terms and conditions of
Attachment A
, this
Attachment B
shall control with respect to the Training
Courses provided hereunder and
Attachment A
shall control for all other purposes.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
MOBILITY COURSE DESCRIPTION
CDMA Switch Technician
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CORE PRODUCT/TECHNOLOGY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CL1000C/W
Flexent/AUTOPLEX® Wireless
System Overview
|
|
***
|
|
***
|
|
***
***
|
|
|
|
|
|
|
|
|
|
Overview of Flexent and
CDMA
Basestations
(optional)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5601C/W
Flexent
Wireless Packet
Networks
Overview
|
|
***
|
|
***
|
|
***
***
|
|
|
|
|
|
|
|
|
|
CL5110
Flexent Element Management
System Overview
Tutorial
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
LTD258M/W
Understanding
the Basics of
Data
Communications
|
|
***
|
|
***
|
|
***
***
|
|
|
|
|
|
|
|
|
|
LTD257M/W
Understanding
TCP/IP Fundamentals
|
|
***
|
|
***
|
|
***
***
|
|
|
|
|
|
|
|
|
|
CL1910
TCP/IP Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
LTD301M/W
Understanding
IP and Voice over IP
|
|
***
|
|
***
|
|
***
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
UC1070
Fundamentals of UNIX
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
5ESS
SWITCH/ECP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WS5M01
5ESS®
DCS Maintenance:
System
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
WS5M02
5ESS
®
Switch DCS
Maintenance: AM and CNI
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
WS5M03
5ESS
®
Switch DCS
Maintenance: CM
Hardware
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
WS5M04
5ESS
®
Switch DCS
Maintenance: SM Hardware
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
WS5M05
5ESS
®
Switch DCS
Trunk
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
WS5MO6
5ESS
®
DCS Maintenance:
Office Database Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL8005
Maintenance of the 5ESS
®
DCS
for
Flexent/AUTOPLEX
®
Wireless
System
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL8002
Flexent/AUTOPLEX
®
Wireless
Networks ECP Complex
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL8510
5ESS Switch CDMA Wireless
Application for NAR
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Flexent
Mobility Manager/RNG Engineering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CL5500
FMS Mobility Server Overview
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL5501
Mobility Manager Application
Processor (AP) OA&M
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL5502
Mobility Manager ROP
OA&M:
|
|
***
|
|
***
|
|
***
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL5503C/W
Flexent Mobility
Manager
Database Management Systems
(MM-DBMS) OA&M
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5582
CDMA2000 1X Radio
Network Controller OA&M
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
3G1X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CL3716
Overview of the 3G-1X Radio
Access Network and Technology
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL3737
3G1X High Speed Packet Data
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
1XEV-DO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LTW541M/W
1X-EVDO Networks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5660C
1xEV-DO Radio Access System
OA&M
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5661
Flexent CDMA2000
1xEV-DO Radio Access System
OA&M
|
|
***
|
|
***
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
Translations
|
|
|
|
|
|
|
|
|
|
CL3630
Flexent/AUTOPLEX
Wireless Networks
Digit-Routing
Translations
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL3631
Flexent/AUTOPLEX
Wireless Networks
Multiple Systems
Networking
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL5632
Flexent/AUTOPLEX CDMA Cell
Site
Growth Translations
|
|
***
|
|
|
|
|
***
|
|
RF Engineer and Systems Performance Engineer
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CORE PRODUCT/TECHNOLOGY
|
|
|
|
|
|
|
|
|
|
CL1000C/W
Flexent
TM
/AUTOPLEX
®
Wireless
System Overview
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5601C/W
Flexent Wireless Packet
Networks Overview
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5110
Flexent Element
Management System Overview
Tutorial
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
LTD258M/W
Understanding the
Basics of Data Communications
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
LTD257M/W
Understanding TCP/IP
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL1910
TCP/IP Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL5600C
Overview of Flexent and CDMA
Basestations (optional)
|
|
***
|
|
***
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
Design/Performance Engineering
|
|
|
|
|
|
|
|
|
|
CL8302
CDMA IS-95/3G1X RF Design &
Growth Engineering for PCS (1900 MHz)
Systems
(for Engineers new to Lucent
equipment)
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL8303
CDMA IS-95-3G1X Base Station Call
Processing
(for engineers new to
Lucent equipment)
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL8304
CDMA 3G1X RF Design
Engineering & Base Station Call
Processing (If not taking
CL8302/CL8303)
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL8306
CDMA2000 1XEV-DO RF Design and
Call Processing
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL8306S
CDMA2000 1xEV-DO RF
Engineering and Call Processing
Pre-Deployment Seminar
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL3723
Wireless AMPS/PCS CDMA RF
Performance Engineering
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
System Capacity Monitoring and Engineering
|
|
|
|
|
|
|
|
|
|
CL1004
Flexent/AUTOPLEX System
Capacity Monitoring and Engineering
(SCME) for PCS CDMA
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL1008
SCME for 1XEV-DO
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
WATCHMARK
|
|
|
|
|
|
|
|
|
|
CL3723
Wireless AMPS/PCS CDMA RF
Performance Engineering
|
|
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL1519
Watchmark Prospect Admin.
Fundamentals
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL1522
Watch Mark Prospect Lucent
AMPS/CDMA/TDMA-New Users
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL1523,
WatchMark Prospect -
Lucent
AMPS/CDMA/TDMA Special
Engineering Studies for Users
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
3G1X
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL3716
Overview of the 3G-1X Radio
Access Network and Technology
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
CL3737
3G1X High Speed Packet Data
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
1XEV-DO
|
|
|
|
|
|
|
|
|
|
LTW541M/W
1X-EVDO Networks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5901
1X-EVDO Technology
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
Systems Engineer (Equipment Engineer) and Switch/BSC Provisioning Engineer
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL1000C
Flexent/AUTOPLEX
®
Wireless Networks System
Overview
|
|
***
|
|
***
|
|
***
|
|
CL1004
Flexent/AUTOPLEX
System Capacity
Monitoring and Engineering
(SCME) for PCS CDMA
|
|
***
|
|
***
|
|
***
|
|
CL1008
SCME for 1XEV-DO
|
|
***
|
|
***
|
|
***
|
Switch (BSC) Engineer
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL1000C
Flexent/AUTOPLEX
®
Wireless Networks System
Overview
|
|
***
|
|
***
|
|
***
|
|
CL5600C
Overview of Flexent and CDMA
Basestations (optional)
|
|
***
|
|
***
|
|
***
|
|
CL8002
Flexent/AUTOPLEX
®
Wireless Networks ECP -
Complex Maintenance
|
|
***
|
|
***
|
|
***
|
|
CL1004
Flexent/AUTOPLEX System Capacity
Monitoring and Engineering
(SCME) for PCS CDMA
|
|
***
|
|
***
|
|
***
|
|
CL1008
SCME for IXEV-DO
|
|
***
|
|
***
|
|
***
|
|
CL1519
Watchmark Prospect
Admin. Fundamentals
|
|
***
|
|
***
|
|
***
|
|
CL1522
WatchMark Prospect -
Lucent AMPS/CDMA/TDMA
for New Users
|
|
***
|
|
***
|
|
***
|
|
CL1523
WatchMark Prospect -
Lucent AMPS/CDMA/TDMA
Special Engineering
Studies for Users
|
|
***
|
|
***
|
|
***
|
|
CL5632
Flexent Translations
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
Customer Service Representatives
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL1000C
Flexent/AUTOPLEX
®
Wireless Networks System
Overview
|
|
***
|
|
***
|
|
***
|
Network Operations Control Center Personnel
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL1000C
Flexent/AUTOPLEX
®
Wireless Networks System
Overview
|
|
***
|
|
***
|
|
***
|
|
CL1111
Flexent/AUTOPLEX
®
NOC Fundamentals and Fault Isolation
|
|
***
|
|
|
|
***
|
RF Base Station Maintenance Personnel
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
Core Product/Technology
|
|
CL1000C
Flexent/AUTOPLEX
®
Wireless Networks System
Overview
|
|
***
|
|
***
|
|
***
|
|
CL5601C/W
Flexent Wireless Packet Networks
Overview
|
|
***
|
|
***
|
|
***
|
|
CL5110
Flexent Element Management System
Overview Tutorial
|
|
***
|
|
***
|
|
***
|
|
LTD258M/W
Understanding the Basics of
Data Communications
|
|
***
|
|
***
|
|
***
|
|
LTD257M/W
Understanding TCP/IP Fundamentals
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
CL1910
TCP/IP Fundamentals
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
Cell Site Engineering
|
|
|
|
|
|
|
|
|
|
CL5600C
Overview of CDMA and Flexent CDMAN Base
Stations
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
CL5610
Flexent CDMA Modular cell OA&M
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL5690
CDMA Modular ell 4.0 Operations,
Administration and Maintenance
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL5696
Advanced Remote Tool Usage
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
3G1X
|
|
|
|
|
|
|
|
|
|
CL3716
Overview of the 3G-1X Radio Access Network
and Technology
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
CL3737
3G1X High Speed Packet Data
Fundamentals
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
1XEV-DO
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
|
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
LTW541M/W
1X-EVDO Networks
|
|
***
|
|
***
|
|
***
***
|
|
|
|
|
|
|
|
|
|
CL5660C
1xEV-DO Radio Access System OA&M
|
|
***
|
|
***
|
|
***
|
|
|
Timelines for each job function:
Below are suggested timelines for the start and completion of training. The intervals
identified are relative to cutover of the system to Customer. These timelines assume
availability of the student to complete courses in a timely manner and the availability of
instructor-led courses.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Start
|
|
Instructor-led
|
|
|
Start CD based
|
|
CD-based training
|
|
Instructor-led
|
|
courses
|
Job Function
|
|
Training
|
|
completed
|
|
course
|
|
completed
|
Switch Technician
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
RF Eng. & Systems
Performance Eng
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
Systems Engineer
(Equipment Engineer) and
Switch/BSC Provisioning
Eng.
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
Switch (BSC) Eng.
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
Customer Service
Representatives
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
Network Operations
Control Center
Personnel
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
RF Base Station
Maintenance Personnel
|
|
***
|
|
***
|
|
***
|
|
***
|
Note: It is also suggested that prospective students visit a Lucent network that is
currently up and running. This will help reinforce what they have learned thus further
preparing them to support their own network.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
WIRELINE COURSE DESCRIPTION
Wireline 5ESS
®
Switches
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
ES5010
5ESS Switch Architecture
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5521
5ESS Switch Operations and
Maintenance
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5523
5ESS Switch Database and
Recent Change
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505A
5ESS Switch Translations:
Essentials for Recent
Change
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505B
5ESS Switch Translations:
Recent Change for Business
Applications
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505C
5ESS Switch Translations:
Recent Change for ISDN
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505D
5ESS Switch Translations:
R/C for Digit Analysis,
Routing, and Charging
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505E
5ESS Switch Translations:
Recent Change for
Trunks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES505P
5ESS Switch Number
Portability Call Processing
and Provisioning
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5555
5ESS Switch Hands-On
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
ES5MOO
5ESS Switch Overview
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
|
|
|
|
|
|
|
Course Number
|
|
Course Description
|
|
Duration
and Media
|
|
Price
|
ES5M01
5ESS Switch Maintenance:
System Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M01T
5ESS Switch Tandem
Applications: System
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M02
5ESS Switch Maintenance:
switching Module
Hardware Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M02A
5ESS Switch
Maintenance: AM and CNI
Hardware Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M02B
5ESS Switch
Maintenance: CM
Hardware Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M02S
OneLink Manager ASM
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M02N
5ESS Switch Maintenance:
Common Channel
Signaling Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M03T
5ESS Switch Tandem
Applications: Trunk
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M03L
5ESS Switch
Maintenance: Line
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M04
5ESS Switch Maintenance:
Office Database
Maintenance
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M05
5ESS Switch Maintenance:
System Analysis
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
|
|
|
|
|
|
|
ES5M20A
5ESS Switch
Architecture
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M20B
5ESS Switch
Maintenance
Fundamentals
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
ES5M20C
5ESS Switch
Hardware
Maintenance
Fundamentals
|
|
***
|
|
***
|
|
***
|
Stinger
®
and NavisAccess DSL
|
|
|
|
|
|
|
|
|
|
|
Duration
|
|
|
Course Number
|
|
Course Description
|
|
and Media
|
|
Price
|
20641
Stinger
®
Configuration and
Administration
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20641E
Stinger
®
Configuration and
Administration
Web-Based Training
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20503
NavisAccess DSL 5.1
Fundamentals 1
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20503E1
NavisAccess DSL 5.1
Fundamentals 1,
web-based training
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20503E2
NavisAccess DSL 5.1
Fundamentals 2,
web-based training
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20503E3
NavisAccess DSL 5.1
Service Creation,
Monitoring, and
Reporting
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20503E4
NavisAccess DSL
5.1 Scheduling and
Configuration
Management
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
DRAFT Subject to legal review and approval by the Parties
Attachment C
*** PRICING
1. GENERAL
The prices, discounts and incentives described in this Attachment apply in those circumstances (as
set forth in Sections 1.2(b) and 1.4(b) of the Agreement) when the prices, discounts and
incentives stated in Attachment A do not apply.
The following are not included in the pricing quoted in this Attachment C:
|
|
|
Taxes, domestic transportation, hauling, hoisting, and warehousing;
|
|
|
|
|
Engineering site visits (if required);
|
|
|
|
|
Extraordinary installation items helicopters, cranes, etc.;
|
|
|
|
|
Power/battery plant, additions, growth and or replacements;
|
|
|
|
|
Transmission/networking equipment, additions, growth and or replacement;
|
|
|
|
|
Antennas/tower, additions, growth modifications;
|
|
|
|
|
Building modifications/construction;
|
|
|
|
|
Optional hardware items associated with select Lucent Software (e.g. OTA, SMS,
AutoPace, billing platforms, etc.);
|
|
|
|
|
All charges associated with non-Standard Intervals ;
|
|
|
|
|
Any other items not specifically quoted in this Attachment.
|
2. EXISTING AND NEW MARKETS
EXISTING
MARKETS
***
NEW MARKETS
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
DRAFT Subject to legal review and approval by the Parties
3. ***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
DRAFT Subject to legal review and approval by the Parties
***
PROPRIETARY
AND
CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
DRAFT Subject to legal review and approval by the Parties
PRODUCT CATEGORIES
|
i.
|
|
Base Station Pricing
|
|
|
ii.
|
|
Flexent Mobility Manager (FMM) Pricing
|
|
|
iii.
|
|
Access Manager (ECP / OMP-FX) Pricing
|
|
|
iv.
|
|
Messaging Pricing
|
B.
|
|
EXISTING MARKET PRICING
|
|
i.
|
|
Base Station Pricing
|
|
|
ii.
|
|
5ESS / Flexent Packet Switch (FPS) Pricing
|
|
|
iii.
|
|
Flexent Mobility Manager (FMM) Pricing
|
|
|
iv.
|
|
Access Manager (ECP / OMP-FX) Pricing
|
|
|
v.
|
|
FMS-Based EVDO Radio Network Controller (RNC) Pricing
|
|
|
vi.
|
|
FBP EVDO Radio Network Controller (RNC) Pricing
|
|
|
vii.
|
|
Gateway and Lucent SoftSwitch Pricing (viib. Lucent Network
Controller and Lucent Network Gateway)
|
|
|
viii.
|
|
Optional Software & BRSS (Base Release System Software) Pricing
|
|
|
ix.
|
|
PDSN Data Equipment Pricing
|
|
|
x.
|
|
Juniper Equipment Pricing
|
|
|
xi.
|
|
Riverstone Equipment Pricing
|
|
|
xii.
|
|
Dorado Pricing
|
|
|
xiii.
|
|
ATM Soft Handoff (SHO) and Integrated Network Solutions (INS)
Pricing
|
|
|
xiv.
|
|
Wireless Intelligent Network (WIN) Pricing
|
|
|
xv.
|
|
Messaging Pricing
|
|
|
xvi.
|
|
NOS Pricing
|
|
|
xvii.
|
|
Training Pricing
|
|
|
xviii.
|
|
Documentation Pricing
|
|
|
xix.
|
|
Services Pricing
|
Appendix 1 Dorado Pricing
Appendix 2 Tampa/Sarasota Market Offer Letter
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
DRAFT Subject to legal review and approval by the Parties
4.A NEW MARKET PRICING
For New Markets, the following pricing will be honored for the Initial Term per the
provisions listed herein, as well as Sections 13 above. For any Product or Software not
specifically denoted in Section 4.A New Market Pricing below, the Existing Market pricing as
defined in Section 4.B will apply.
i. Base Station Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Modcells
|
|
|
***
|
|
|
|
***
|
|
|
***
|
Channel Elements
|
|
|
***
|
|
|
***
|
|
***
|
Power / Batteries
|
|
|
***
|
|
|
|
***
|
|
|
***
|
***
|
|
|
|
|
New Market Modcell 4.0b Primary 1
st
Carrier / 3 Sector (6-sector capable) w/
|
|
|
|
Duplex Filters:
|
|
Mod 4.0b PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 2
nd
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 3
rd
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 4
th
Carrier Growth w/ no
|
|
|
|
|
|
|
|
|
|
|
|
|
additional Battery back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
Not offered
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
DRAFT Subject to legal review and approval by
the Parties
NEW MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 5
th
Carrier Growth on 4.0 PC:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 6
th
Carrier Growth on 4.0 PC:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0b
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
New Market 7
th
- 11
th
Carrier Growth Kits for Modcell 4.0b will be
Priced at ***
|
|
|
|
|
New Market: 7
th
Carrier Growth Modcell 4.0 Growth Cabinet for 4.0 Primary
|
|
Mod 4.0
|
|
Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 8
th
Carrier Growth on 4.0 GF-1
|
with
|
|
with
|
|
|
with
|
|
with a 4.0 PC:
|
Mod 2.0 PC
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market 9
th
Carrier Growth on 4.0 GF-1
|
|
with
|
|
|
with
|
|
|
with
|
|
with a 4.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
New Market 10
th
and 11
th
Carrier Growth Kits on 4.0 will be Priced as
those Growth Kits listed
above.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
DRAFT Subject to legal review and approval by the Parties
NEW MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Market
Note
2
nd
V4 BTS w/ 2 3G1X Cxr
|
|
Mod 2.0 &
|
|
|
|
|
|
|
|
|
|
|
Redeployed
|
|
and 1 EVDO Cxr (B2B):
|
|
Mod 3.0
|
|
|
C4.0
|
|
|
Mod 4.0
|
|
|
Price
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
|
***
|
|
Note: ***
***
ii.
Flexent Mobility Manager (FMM) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Initial Launch New Market FMM HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Initial Launch New Market FMM SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
***
iii. Access Manager (ECP /OMP-FX) Pricing:
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Initial Launch New Market Axmgr
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
iv. Messaging Pricing:
Please refer to Attachment L for Messaging pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
DRAFT Subject to legal review and approval by the Parties
4.B EXISTING MARKET PRICING
i. Base Station Pricing
Discount Table
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Modcells
|
|
|
***
|
|
|
***
|
|
***
|
Channel
Elements
|
|
|
***
|
|
|
***
|
|
***
|
Power / Batteries
|
|
|
***
|
|
|
***
|
|
***
|
***
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
Modcell 3.0 / 4.0 / 4.0b Primary & Modcell 2.0 / 3.0 / 4.0 / 4.0bGrowth Kit Pricing:
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
Modcell 4.0/4.0b Primary 1
st
Carrier / 3 Sector w/ Duplex Filters:
|
|
Mod 4.0/4.0b PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
Modcell 3.0 Primary 1
st
Carrier / 3 Sector w/ Duplex Filters:
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
DRAFT Subject to legal review and
approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
Mod 4.0
|
|
Compact Modcell 4.0 Primary 1
st
Carrier / 3 Sector w/ Duplex Filters:
|
|
Compact PC
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
nd
Carrier Growth w/ no additional Battery
|
|
|
|
|
|
|
|
|
|
|
|
|
back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0 / 4.0b
|
|
|
C4.0
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
***
|
|
Total
Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
rd
Carrier Growth w/ no additional Battery
|
|
|
|
|
|
|
|
|
|
|
|
|
back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0 / 4.0b
|
|
|
C4.0
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
***
|
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
th
Carrier Growth w/ no additional Battery
|
|
|
|
|
|
|
|
|
|
|
|
|
back-up:
|
|
Mod 2.0
|
|
|
Mod 3.0
|
|
|
Mod 4.0/4.0b
|
|
|
C4.0
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
Not offered
|
|
|
Not offered
|
|
|
|
***
|
|
|
Not offered
|
|
|
|
|
|
|
|
|
Mod 4.0
|
|
4
th
Carrier Growth Modcell 4.0 Growth Cabinet for 2.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
***
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
Mod 4.0
|
|
4
th
Carrier Growth Modcell 4.0 Growth Cabinet for 3.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
***
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
5
th
Carrier Growth on 4.0 PC or on 4.0 GF-1
|
|
with
|
|
|
with
|
|
|
|
|
with 2.0 PC / 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
with
|
|
|
with
|
|
5
th
Carrier Growth on 2.0 GF-1 or 3.0 GF-1:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
th
Carrier Growth on 4.0 or on 4.0 GF-1
|
|
with
|
|
|
with
|
|
|
|
|
|
with
2.0 PC/ 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod
4.0
|
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
with
|
|
|
with
|
|
6
th
Carrier Growth on 2.0 GF-1 or 3.0 GF-1:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
7
th
- 11
th
Carrier Growth Kits for Modcell 4.0b will be Priced at
***
|
|
|
|
|
|
|
Mod 4.0
|
|
7
th
Carrier Growth Modcell 4.0 Growth Cabinet for 4.0 Primary Cabinet:
|
|
GF-1
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
Sub-Total
|
|
|
***
|
|
***
|
|
|
|
|
***
|
|
|
***
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
7
th
Carrier Growth on 4.0 GF-1 with a 2.0 PC
|
|
with
|
|
|
with
|
|
or 3.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
th
Carrier Growth on 4.0 GF-1 with a 2.0 PC
|
|
with
|
|
|
with
|
|
|
with
|
|
/ 3.0 P C/ 4.0 PC:
|
|
Mod 2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
9
th
Carrier Growth on 4.0 GF-1 with a 2.0 PC
|
|
with
|
|
|
with
|
|
|
with
|
|
/ 3.0 PC/ 4.0 PC:
|
|
Mod
2.0 PC
|
|
|
Mod 3.0 PC
|
|
|
Mod 4.0 PC
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Total Model Price
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
10
th
and 11
th
Carrier Growth Kits on 4.0 will
be Priced as those Growth Kits listed above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0 EVDO Carrier Upgrade
Note:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note: ***
6-Sector Upgrade Not to Exceed Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0b 6-Sector Upgrade (3G1X
|
|
|
|
|
|
|
|
|
voice only, up to 3 Cxrs) with 64 CE +
|
|
|
|
|
|
|
|
|
RTU
Notc
:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note:
Applicable only to those Modcell 4.0bs shipped as 6-sector capable. Software
will be available upon GA by June 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to
develop and deliver with general availability in commercially reasonable quantities
6-sector 3G1X voice only functionality for up to 3 carriers in a Modcell 4.0b cabinet by
June 30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade
in a timely manner.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modcell 4.0b 6-Sector EVDO Upgrade
|
|
|
|
|
|
|
|
|
(single carrier) with 64 CE+ RTU
Notc
:
|
|
Mod 2.0
|
|
Mod 3.0
|
|
Mod 4.0
|
|
C4.0
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Note: Applicable only to those Modcell 4.0s shipped as 6-sector capable. Software
will be available upon GA by November 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to
develop and deliver with general availability in commercially reasonable quantities
6-sector single carrier, EvDo upgrades in a Modcell 4.0b cabinet by November 30, 2006,
provided Customer cooperates with Seller to conduct the FOA for such upgrade in a timely
manner.
***
***
***
***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
Intelligent Antenna (IA) Planning Prices
***
Please note the following:
|
-
|
|
***
|
|
|
-
|
|
Pricing based on current product roadmap and does not constitute a commitment by
SELLER to produce, develop, make available, or manufacture IA.
|
|
|
-
|
|
Customer responsible for IA antenna, misc. cabling, and other potential items required for
IA upgrade
|
The product roadmaps outlined above for: (1) EVDO Rev A; and (2) Intelligent Antenna are
provided by Seller solely to inform Buyer of Sellers current plan of record for the
relevant product(s) and both parties to this Agreement hereby agree that such information
does not form a commitment of any kind on either party in relation to this Agreement but
represents Sellers good faith estimate as of the Effective Date. The terms and
conditions, including firm pricing, of any features or functionalities that may be
described in the product roadmap that are ultimately released, made generally available,
or provided under this or subsequent agreements are subject to future negotiations and
future agreement on the terms and conditions which would govern any sale. There are no
penalties, liquidated damages or other remedies associated with changes to the product
roadmap including cancellation of any specific feature or functionality or delay in the
timing of development.
|
|
|
|
|
Channel
Element (CE) Pricing:
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kits to Maintain 4 Hour Battery Backup
|
|
|
|
|
|
|
|
|
|
QUANTITIES
|
|
Description
|
|
List
|
|
|
Net
|
|
|
3S1C
|
|
|
3S2C
|
|
|
3S3C
|
|
|
3S4C
|
|
|
3S5C
|
|
|
3S6C
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL List Price
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
TOTAL Incermental List Price
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
TOTAL Net Incremental Price
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
ii.
|
|
5ESS / Flexent Packet Switch (FPS) Pricing
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
5ESS / FPS
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
***
iii.
|
|
Flexent Mobility Manager (FMM) Pricing:
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FMM HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FMM SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
iv.
|
|
Access Manager (ECP / OMP-FX) Pricing:
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
Axmgr
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
v.
|
|
FMS Based EVDO Radio Network Controller (RNC) Pricing:
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FMS Based RNC HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FMS Based RNC SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
vi.
|
|
FBP EVDO Radio Network Controller (RNC) Pricing:
|
|
|
|
***
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
FBP Based RNC HW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
FBP Based RNC SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
Note: Requires OMC-RAN.
|
|
vii.
|
|
Gateway and Lucent Soft Switch Pricing:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unit List
|
|
|
Unit Net
|
|
|
|
|
Comcode
|
|
Product Description
|
|
Price
|
|
|
Price
|
|
|
Discount
|
|
300724218
|
|
VOICE MAIL INTERFACE ACCESSORY PACK
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724283
|
|
PLEXVIEW ADVANCED TRAFFIC COLLECTION SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724366
|
|
PLEXUS 9000 CUSTOMER DOC CDROM
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724374
|
|
PLEXVIEW EMS DOCUMENTATION CDROM
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724382
|
|
PLEXVIEW BILLING & TRAFFIC COLLECTION G
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unit List
|
|
|
Unit Net
|
|
|
|
|
Comcode
|
|
Product Description
|
|
Price
|
|
|
Price
|
|
|
Discount
|
|
300741238
|
|
PLEXVIEW FLOW-THRU PRO & PM XML API
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724317
|
|
PLEXVIEW AMA PLUS BILLING SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723541
|
|
P9000 CHASSIS & COMM EQUIP PROTECT W/SP3
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723590
|
|
8XDS3/STS-1 IOM WITH TONE DETECT
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723657
|
|
8XDS3/STS-1 PROTECT IOM, W/TONE DETECT
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723897
|
|
PLEXUS OPERATING S/W
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723913
|
|
SS7 S/W PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300723947
|
|
TDM TRUNK INTERFACE FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724036
|
|
ENHANCED ROUTING S/W PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724127
|
|
IS-41D GATEWAY MSC SW FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724184
|
|
SMDI FEATURE PKG
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724242
|
|
PLEXVIEW ELEMENT MANAGER LICENSE
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724291
|
|
PLEXVIEW ADV REPORTING NAMED USER LICEN
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300729688
|
|
DS1 IOM KIT, 87-1002-A
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724259
|
|
PLEXVIEW S/W BUNDLE PER EMS SERVER
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
300724267
|
|
PLEXVIEW ADVANCED REPORTING SW PER EMS
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Maintenance for LCS Gateway products will be charged on a per configuration basis.
vii.
|
|
Lucent Network Controller and Lucent Network Gateway:
|
Pricing for the LNC and LNG shall be negotiated in good faith by the Parties at a
later date.
viii.
|
|
Optional Software
&
BRSS (Base Release System Software) Pricing:
|
***
***
***
***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
***
ix.
|
|
PDSN Data Equipment Pricing
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
|
Net Effective
|
PDSN, including AAA SW
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
Power
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
x.
|
|
Juniper Equipment Pricing
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
Hardware
|
|
|
***
|
|
|
***
|
|
|
Software
|
|
|
***
|
|
|
***
|
xi.
|
|
Riverstone Equipment Pricing
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
Hardware
|
|
|
***
|
|
|
|
***
|
|
Software
|
|
|
***
|
|
|
***
|
Please see Appendix 1 for current Dorado Price Book.
|
§
|
|
***
|
|
|
§
|
|
Dorado items are orderable with Juniper and/or Riverstone and Lucent gear
|
|
|
§
|
|
All customer requests for Dorado Quotes must go through the current quoting process.
|
xii.
|
|
ATM SHO and Integrated Network Systems (INS) Pricing
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
Material
|
|
Standard
|
|
Spares
|
PSAX 4500
|
|
|
***
|
|
|
|
***
|
|
CBX 500 Hardware
|
|
|
***
|
|
|
|
***
|
|
CBX 500 RTU Fees
|
|
|
***
|
|
|
|
|
|
CBX 3500 Hardware
|
|
|
***
|
|
|
|
***
|
|
CBX 3500 MXOX RTU Fee
|
|
|
***
|
|
|
|
|
|
CBX 3500 Other RTU Fees
|
|
|
***
|
|
|
|
|
|
|
|
Pricing for other INS materials shall be negotiated in good faith by the Parties at a later
date.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xiii.
|
|
Wireless Intelligent Network (WIN) Pricing:
|
|
|
|
Discount Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material/Software/Service
|
|
List
|
|
Spares
|
|
Net Effective
|
|
OI Comcode
|
eCS 900 4 T1 Channelized Links Platform
Software RTU
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300538014
|
|
eCS 900 Base Configuration (1 Media Unit)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300517828
|
|
eCS 900 Base Spares
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300568722
|
|
eCS 900 Telecom Server Chassis e/q with
4 Tl Channelized Links distributed over
2 Telecom Server Units. (These 4 Tl
Channelized Links equate to 32 low speed
SS7 links).
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300517901 300517877
|
|
eCS, Release 24 Operating System &
Utilities RTU
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300567641 300567658
|
|
eCS900 SRU (per eCS)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703188
|
|
eMRS SRU (per eMRS)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703600
|
|
eSM SRU(J6750)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703196
|
|
eSM, RTU for up to 10 AHE/MAS connections
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300570728
|
|
LICENSE, RIGHT TO USE
(per subscriber)
,
eCS R24, ANSI-41 SHLR 9.0 &
Authentication Center (AC)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300723194 300723160 300723111 300723061 300723111
|
|
LICENSE, RIGHT TO USE, SHLR 8.0 or
Later, Support MiRing (per sub)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300723012
|
|
Lucent IN Applications SRU (MiRing &
SHLR, 1 million to 5 million
subscribers) (per subscriber)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300703519
|
|
MiRing subscriber-RTU (per 1,000
subscriber-RTU)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300689494
|
|
R24 eServices Intelligent Network
On-line Platform Documentation CD Rom
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
SHLR Integration (eCS 900, eSM) for
possible second pair expansion
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
SOFTWARE, ON TAPE, eCS R24, SHLR 9.0 -
New Install
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300589629
|
|
Spare 8GB Fully Populated Factory System
Tested Memory Board (eCS 900)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300538089
|
|
Spare, SCSI 36GB Boot disk
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300707486
|
|
SRU Integration Services (SHLR solution
applications)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
SRU Integration Services (SHLR solution
platforms)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300427499
|
|
LICENSE, RIGHT TO USE, SHLR 8.0 or
Later, Over The Air Parameter
Administration (OTAPA) (per 1,000
subscribers)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300722980
|
|
RTU R23 - R24 - SNMP OA&M Data
Collection Interface
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300570074
|
|
SW & RTU for Performance Engineering
Tools R24
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300566684
|
|
HARDWARE KIT FOR EMRS,R24R25, SUNBLADE
LMT+ REFR WS WITH ONE MONITOR
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300787512
|
|
EQMT TO PROVIDE FOR BASE CABINET PLUS
FIRST EMRS CHASSIS PROVISIONING (TS1)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679735
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material/Software/Service
|
|
List
|
|
Spares
|
|
Net Effective
|
|
OI Comcode
|
AND SECOND
EMRS UNIT AT TS0, 30 INCH DEEP
CABINET
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SL-CAB-HWKIT, 30INCH,eMRS
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679776
|
|
FI-CAB-BASE, 30INCH,eMRS
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679719
|
|
FRAMEWORK, ASSEMBLY, WIRING & COMMON
EQUIPMENT TO PROVIDE ONE COMPACT PCI 30 INCH
EMRS CABINET FOR FIRST EMRS CHASSIS PROVISIONING
(TS1)
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300679727
|
|
CIRCUIT PACK, QUAD SS7 INTERFACE CARD
AND T1 PORTS (408385482)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300326857
|
|
CIRCUIT
PACK, CPU, DUAL P3, 1 Ghz CPU
(408786895); CIRCUIT PACK, CPU 1 Ghz RTM
(408790186)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590551
|
|
CIRCUIT PACK, ALARM BOARD2 (408802312)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590759
|
|
CIRCUIT PACK, MEDIA BAY MODULE
(408403715)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300288271
|
|
SPARE, CIRCUIT PACK, SCSI DATA DISK DRIVE,
36GB
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300736790
|
|
CIRCUIT PACK, POWER ENTRY MODULE
(408403681)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300288255
|
|
NMS CG6500 8-span E1/T1 VOIP board card, 2
10/100BaseT Network I/O (note: comcode 300590676
maps into 408781029 -front card & 408761153
-RTM card in the eMRS H400-717 drawing)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300590676
|
|
CIRCUIT PACK , MULTI-FUNCTION SYSTEM I/O
CARD, ETHERNET CARD AND SCSI INTERFACE CARD
(408641744); CIRCUIT PACK, MFIO RTM
(408532232)
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300326832
|
|
eSM, RTU for 20K TPH performance
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278173
|
|
eSM, RTU for up to 10 eMRS connection
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300277951
|
|
eSM, RTU for 4 eCS/SCP connection
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278058
|
|
eSM, RTU for 50K TPH performance
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
300278207
|
|
Tl Channelized Links Spare
|
|
|
***
|
|
|
|
***
|
|
|
|
***
|
|
|
|
300618964
|
|
xiv.
|
|
Messaging Pricing:
|
|
|
|
Please refer to Attachment L for Messaging pricing.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xv.
|
|
NOS Pricing:
|
|
|
|
Order Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term of
|
|
|
|
|
|
|
|
|
|
|
|
|
Order
|
|
|
|
|
|
Comcode # and other Description
|
|
Service or
|
|
|
|
|
|
|
|
|
|
Extended
|
|
|
Type
|
|
Comcode #
|
|
(E.g. Level of Support, Upgrades Included, etc.)
|
|
License
|
|
Qty
|
|
Fee
|
|
Fee
|
1
|
|
SW
|
|
|
108375494
|
|
|
Netminder NTP RTU (One time Right-to-use) Software License
|
|
One time
|
|
|
1
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
List Price: ***
MetroPCS
Discount Price ***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
Training
|
|
OS3326
|
|
OS3326 NTP System User & Administration Training (4 days, 8 students)
Instructor T&L not included
|
|
One time
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
3
|
|
SW
|
|
|
300660834
|
|
|
3rd Party SW: Times Ten (one per server )
|
|
One time
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
4
|
|
SW
|
|
|
300660842
|
|
|
3
rd
Party SW: Borland VisiBroker
(one per server)
|
|
One time
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
5
|
|
SW
|
|
|
300660826
|
|
|
3
rd
Party SW: NTP Oracle RTU per CPU
|
|
One time
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
6
|
|
PS
|
|
|
108087289
|
|
|
LWS Services: IPA, install, configuration (one
server)
|
|
One time
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
7
|
|
Annual Maint.
|
|
|
300012655
|
|
|
24X7 RTS-Remote Technical Support, (includes
Software Updates, Upgrade for Core, Web Site
Access)***
|
|
annual
|
|
|
1
|
|
|
|
***
|
|
|
|
***
|
|
Term for software support services:
Any Software support Service charges
stated herein shall have an initial, non-cancelable term of ***,
commencing upon the delivery of the Software (Initial Term). Software support
Services will be provided in accordance with Sellers Statement of Work (SOW) for
such Services. Customer may access and view these SOWs and their associated terms
and conditions at Sellers web site address www.lucent.com/support.
Seller Hardware:
In the event that the Software is utilized on Seller provided
server Products, Customer will provide Seller with reasonable access for
installation and maintenance of Seller-owned Products and Customer agrees that
title to such Products will remain with Lucent at all times. Upon termination of
the license utilizing Seller owned Products, Customer agrees to return such
Products upon written request to Seller within 15 days of such termination or
Seller may invoice, and Customer shall pay, the then current value of the
Products retained.
Training will be provided in accordance with Sellers standard training program
at then-current rates. For more information please refer to Attachment B. A
BP99-Form will need to be filled out from time to time.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
DRAFT Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xvii.
|
|
Documentation Pricing:
|
Documentation will be provided in accordance with Sellers standard documentation program
at then-current rates. For more information please contact CIC 888-582-3688 or
www.lucentdocs.com.
Customer Code = DK
Please refer to Attachment J for Services Pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
19
DRAFT
Subject to legal review and approval by the parties
APPENDIX 1 DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
20
DRAFT
Subject to legal review and approval by the Parties
APPENDIX 1 DORADO PRICING
***
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
21
DRAFT Subject to legal review and approval by the Parties
APPENDIX 1 DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
22
DRAFT Subject to legal review and approval by the Parties
APPENDIX 2 TAMPA/SARASOTA MARKET OFFER LETTER
December 7, 2004
Mr. Roger Linquist
President and Chief Executive Officer
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, TX 75231
Re:
Final Revised Tampa/Sarasota Market Offer (10MHz)
Dear Roger:
Per our agreement, Lucent Technologies is pleased to provide you with the following
revised
offer
for use in your newly acquired Florida spectrum, as well as a consideration for your
existing properties. An overview of this proposal is as follows:
3G1X
CDMA Wireless Network
Lucent Technologies shall supply MetroPCS with the following components, including associated
services as described. The prices for all other equipment, software and services not specifically
referenced herein shall be negotiated in good faith with MetroPCS, or will be priced per the
existing General Agreement for the Purchase of PCS Systems between our companies, dated October 1,
2002, as amended from time to time (the General Agreement).
The
proposal was configured with the following sizing guidelines:
|
|
|
|
|
|
|
|
|
Phase 1
|
|
Phase 2
|
|
Phase 3
|
***
|
|
***
|
|
***
|
|
***
|
***
|
|
***
|
|
***
|
|
***
|
***
|
|
***
|
|
***
|
|
***
|
***
|
|
***
|
|
***
|
|
***
|
***
|
|
***
|
|
***
|
|
***
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
Mobile Switching Center
Lucent
Technologies proposes ***
|
|
|
|
|
MSC Services
In support of this effort, Lucent Technologies shall provide MetroPCS with the
following services at the following reduced pricing (for a detailed description of these
services, please see each specific Statement of Work (SOW)). ***
|
Integration Switch Move
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
23
DRAFT Subject to legal review and approval by the Parties
APPENDIX 2 TAMPA/SARASOTA MARKET OFFER LETTER
***
|
|
|
CDMA Mod-cell 4.0 6-sector solution
Lucent Technologies shall provide MetroPCS with
*** Mod-cell 4.0 base stations equipped with 3-sectors and 1 carrier. These base stations will be
capable of supporting 6-sector in the future (upon shipment, available beginning May 2005), and
will function as 6-sector base stations when the necessary Lucent CDMA ECP Release 26.0
Software becomes generally available. Target GA date for R.26 is April of 2006. The price for
each base station will be ***. Additionally, Lucent shall supply up to 508 carrier upgrade kits priced
at ***. Pricing for the 3-sector to
6-sector (across all three carriers) upgrade (HW & SW only) will
be ***. The pricing for subsequent Channel Elements and Power will
be per the current General Agreement.
|
|
|
|
|
Base Station I Other Services
In support of this effort, Lucent Technologies shall provide
MetroPCS with the following services at the following reduced pricing (for a detailed
description of these services, please see each specific Statement of Work (SOW)). Should MetroPCS wish to
utilize Lucent Technologies
Site Location and Construction Services,
any purchase incentives
set forth in the then current General Agreement cannot be utilized for these services.
|
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
24
DRAFT Subject to legal review and approval by the Parties
APPENDIX 2 TAMPA/SARASOTA MARKET OFFER LETTER
|
|
|
AnyPath Voice Messaging Solution
Additionally, as a part of this bundled
offer, Lucent Technologies would like to extend to MetroPCS a special new market offer for voice
messaging: ***.
|
Existing Markets Offer
Additionally, Lucent would like to extend the following one-time special incentive for use
in your current markets ***.
|
|
|
CDMA Mod-cell base stations
***
|
This offer, in its entirety, is per the terms and conditions of the current General Agreement
between MetroPCS and Lucent Technologies, dated October 1, 2002. This offer will be incorporated
into any subsequent General Agreement (upon the termination, expiration, renewal, extension, or
re-negotiation of the current General Agreement) on terms and conditions mutually agreed by the
parties. MetroPCS has the right to purchase the quantities described herein, with the associated
discounts and incentives, through December 2007.
Please sign a copy of this offer letter and return it to me by close of business December 9, 2004
to acknowledge MetroPCS acceptance of this offer. Upon acceptance, this letter and the
non-conflicting terms and conditions of the General Agreement constitute the entire agreement, and
supersede all previous understandings (both written and oral), between the parties regarding the
subject matter.
Best Regards,
Mark Gardner
Mark Gardner
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
25
DRAFT Subject
to
legal review and approval by the Parties
APPENDIX 2 TAMPA/SARASOTA MARKET OFFER LETTER
|
|
|
|
|
|
|
|
|
Accepted
by:
|
|
|
|
|
|
|
|
|
|
|
|
Metro PCS Wireless, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CC :
|
|
Malcolm Lorang, MPCS
|
|
|
|
|
|
|
Bob Young, MPCS
|
|
|
|
|
|
|
Ben Bratcher,LU
|
|
|
|
|
|
|
Fred Kessler, LU
|
|
|
|
|
|
|
Anne DeKoker, LU
|
|
|
|
|
|
|
Kevin Daelke, LU
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
26
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
ATTACHMENT D
LUCENT TECHNOLOGIES
PCS
Wireless Network
Remote Technical Support Advantage
(RTSA)
AND
Multi
Vendor
Maintenance Service FOR
Sun Products (Sun
MVM)
Note: The respond/restore/resolve
times and ECP hours / % on page
9, and the price of CTA support
on p.24 are all items that
can possibly be redacted; however,
a similar attachment to the
5-4/A on 1/16/2004 (Attachment E)
did not redact these items.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Table
OF Contents
|
|
|
|
|
1 INTRODUCTION
|
|
|
5
|
|
|
|
|
|
|
Description
of Services
|
|
|
6
|
|
|
|
|
|
|
2 TERM/DURATION
|
|
|
6
|
|
|
|
|
|
|
3 REMOTE TECHNICAL SUPPORT ADVANTAGE
|
|
|
6
|
|
|
|
|
|
|
4 SELLER RESPONSIBILITIES
|
|
|
6
|
|
|
|
|
|
|
4.1
Remote Technical Support
(RTS)
Description
|
|
|
6
|
|
4.1.1 Seller Tasks/Deliverables
|
|
|
7
|
|
4.1.2 RTS Performance Objectives
|
|
|
7
|
|
4.1.3 Definition of Severity Levels
|
|
|
8
|
|
4 1.4
Definition of Respond, Restore and Resolve
|
|
|
8
|
|
4.1.5 Respond, Restore and Resolve Objectives
|
|
|
8
|
|
4.1.6 Customer Service Delivery Feedback/Escalation
|
|
|
9
|
|
4.2
Customer Technical Advocate Support
|
|
|
9
|
|
4.2.1 Description
|
|
|
9
|
|
4.2.2 CTA Tasks/Deliverables
|
|
|
10
|
|
4.2.3 CTA Exclusions
|
|
|
11
|
|
4.3
Base Release Software and Service
(BRSS)
|
|
|
11
|
|
4.3.1 Updates and Upgrades
|
|
|
11
|
|
4.3.2 License Audit
|
|
|
13
|
|
4.3.3 Distribution
|
|
|
13
|
|
4.3.4 Software Delivery
|
|
|
13
|
|
4.3.5 Pre-lnstallation Support
|
|
|
14
|
|
4.3.6 Installation Support
|
|
|
14
|
|
4.3.7 Retrofit Support
|
|
|
14
|
|
4.4
Software Support Policy
|
|
|
15
|
|
4.4.1 Normal Progression/Skipping
|
|
|
15
|
|
4.4.2 Major Release Life Cycle Ratings
|
|
|
15
|
|
4.4.3 Support Availability for Different Software Ratings*
|
|
|
16
|
|
|
|
|
|
|
5 CUSTOMER RESPONSIBILITIES
|
|
|
17
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
|
|
5.1
Customer Responsibilities Concerning Lucent Web Site Access
|
|
|
17
|
|
|
|
|
|
|
6 EXCLUSIONS
|
|
|
18
|
|
|
|
|
|
|
7 ASSUMPTIONS/ELIGIBILITY FOR RTSA
|
|
|
20
|
|
7.1
Equipment Manufactured, and Installed by or Purchased from Seller
|
|
|
20
|
|
7.2
Other Situations
|
|
|
21
|
|
7.3
Customers Warranties of Authority
|
|
|
21
|
|
7.4
Support For Relocated Software
|
|
|
21
|
|
7.5
Commencement of
RTSA
|
|
|
22
|
|
7.5.1 General
|
|
|
22
|
|
7.5.2 First System
|
|
|
22
|
|
7.5.3 Additional Systems
|
|
|
22
|
|
7.5.4 Addition of Existing Systems
|
|
|
23
|
|
|
|
|
|
|
8 GENERAL TERMS
|
|
|
23
|
|
8.1
Conditions
|
|
|
23
|
|
8.2
Change Management
|
|
|
23
|
|
8.3
Acceptance
|
|
|
23
|
|
8.4
Warranty
|
|
|
23
|
|
|
|
|
|
|
9 PRICING SECTION
|
|
|
24
|
|
9.1
Determination of Pricing Units
|
|
|
24
|
|
9.2
Pricing Notes
|
|
|
24
|
|
|
|
|
|
|
10 PRICING
|
|
|
25
|
|
10.1
Maintained Products for
RTS
and
BRSS
|
|
|
25
|
|
10.1.1 Maintained Products
|
|
|
25
|
|
10.1.2 1XEVDO Maintained Products
|
|
|
26
|
|
10.1.3 Optional Feature Support
|
|
|
26
|
|
|
|
|
|
|
11 GLOSSARY
|
|
|
26
|
|
|
|
|
|
|
12 MULTIVENDOR MAINTENANCE SERVICE FOR SUN PRODUCTS (SUN MVM)
|
|
|
30
|
|
12.1
Elements of Work and Lucent Responsibilities
|
|
|
30
|
|
12.1.1 Description
|
|
|
30
|
|
12.2
Tasks/Deliverables
|
|
|
30
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
|
|
12.2.1 MVM SUN Response Time Objectives
|
|
|
30
|
|
12.2.2 On-site Dispatched Technician
|
|
|
31
|
|
12.2.3 Hardware FRU Repair or Replacement
|
|
|
31
|
|
12.3
Customer Responsibilities
|
|
|
32
|
|
12.4
Exclusions
|
|
|
34
|
|
12.5 MVM SUN
Definitions
|
|
|
34
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
1
Introduction
This Attachment D describes the deliverables, parties respective responsibilities and other
conditions applicable for the provision of Remote Technical Support Advantage (RTSA) by Lucent
Technologies Inc. (Seller) for MetroPCS Wireless, Inc. (Customer), in addition, it describes
Muitivendor Maintenance Service available for Sun Products.
Sellers RTSA service consists of remote technical support Service (RTS) and software update and
upgrade Service (BRSS) as further described in this Attachment, collectively referred to as the
Services.
Performance of the Services described in this Attachment shall be governed by the terms of the
Agreement. In the event of a conflict between the terms of the Agreement and this Attachment, the
terms of this Attachment shall prevail. No obligation to provide a Service described herein shall
arise unless an order for the Service, incorporating the terms of an agreed Purchase Order, has
been placed by Customer under a signed governing agreement in place between Customer and Seller and
accepted by Seller.
Sellers performance of the Services described below is subject to the assumptions, exclusions and
other conditions identified in this document.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Description of Services
2
Term/Duration
Term
shall refer collectively to the Initial Term and Renewal Terms as described below.
Initial Term: The Initial Term for RTSA Service is as defined in Article 1.2(a) of the Agreement.
For as long as Seller continues to offer RTSA as described in this Attachment, Customers RTS and
BRSS programs will automatically renew for a Renewal Term, as defined in Article 1.2(b) of the
Agreement, unless either party gives written notice of intent to not renew no later than *** prior to the expiration of the Term then in effect. The prices and terms of service for
a Renewal Term shall incorporate any modifications of which Seller has provided Customer at least
*** written notice prior to the end of the Initial Term or any subsequent Renewal
Terms. Customer shall place a confirmatory purchase order for each Renewal Term prior to the first
day of that Renewal Term.
3
Remote Technical Support Advantage
Sellers RTSA Service provides Remote Technical Support (RTS) and Software Patches, Software
Updates, and Software Upgrades (BRSS), as available, for the Seller commercially deployed
Maintained Products listed in Section 10.1 that are made generally available during the
subscription period.
The Products for which the Service is purchased are sometimes referred to in this Attachment as
Maintained Products. The Maintained Products are the Products of the types listed in Section
10.1 of this Attachment that are commercially deployed and operational in Covered Systems (as that
term is defined in Section 11 Glossary).
RTSA is only applicable in the Territory.
4
Seller Responsibilities
4.1 Remote Technical Support (RTS) Description
Sellers RTS Service uses remote access to allow Seller engineers to support Product-related
questions, troubleshooting assistance and diagnostic procedures to restore and resolve network
troubles.
Support Levels:
The RTS is offered as a Premium support Service, which provides access to remote engineers
24 hours a day, 7 days a week.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
4.1.1 Seller Tasks/Deliverables
Seller shall:
|
o
|
|
Log Customer-initiated request for RTS (Assistance Request (AR)). Provide Customer
with AR tracking number.
|
|
|
o
|
|
Assign an AR to a Seller engineer to serve as single point of contact to facilitate
communication and enable rapid restoration of service or technical assistance.
|
|
|
o
|
|
Respond to Customer request for Product and technical information.
|
|
|
o
|
|
Troubleshoot network problems, via phone, virtual private network (VPN), or modem
connection, down to Maintained Product component level, or sufficiently to exclude
Maintained Products as the root cause.
|
|
|
o
|
|
Restore Maintained Products to operational status by identifying defective hardware
components or providing Software and/or procedural workarounds, where feasible. All
Software workarounds are licensed subject to the same terms, restrictions, and
limitations as contained in the licenses under which the software was acquired.
|
|
|
o
|
|
Provide 24x7x365 access to product specific Customer support content of the Lucent.com
web site. Customer Support content may include technical product support information,
subscription services, and other self-help facilities, as well as ability to submit ARs
and check the status of ARs online.
|
4.1.2 RTS Performance Objectives
The RTS respond, restore, and resolve performance objectives, established by Seller, are
dependent on the severity level of the request as reported by Customer to the Technical Assistance
Center (TAC) via telephone.
To meet the Restore & Resolve objectives the problem must be reproducible at either Lucents
location or on Customers system, verifiable by Lucent. If during analysis Seller determines the
severity level of the problem as reported by Customer to be inaccurate, Seller reserves the right
to re-assign severity. In these instances, Seller will notify Customer, and the objectives
associated with the AR will be adjusted.
Seller will use its reasonable efforts to meet the applicable targets set forth in Section 4.1.4
***. For purposes of
determining Sellers performance against such targets, a measurement shall be taken once annually
after the end of a calendar year for which Customer has paid for the RTSA Program, based on ARs
resolved during the measured year. The foregoing measurements shall only be taken with respect to
a complete calendar year for which Customer has paid the applicable annual fee.
Lucent performance objectives extend to Maintained Products running on current software version
release only, which includes Major Releases with a product lifecycle rating of SA or A&M, as
described in section 4.4.2. Objectives are also contingent to Seller gaining remote access to
Maintained Products to perform remote technical support.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
4.1.3 Definition of Severity Levels
Severity Levels are defined as the condition of the system when Customer submits an AR.
Severity Levels are defined below.
|
o
|
|
Severity Level 1 (SL1, Critical):
The system is inoperative and Customers inability
to use the product has a critical effect on Customers operations. This condition is
generally characterized by complete system failure and requires immediate correction. In
addition, any condition that may critically impact human safety is considered a Severity
Level 1 problem.
|
|
|
o
|
|
Severity Level 2 (SL2, Major):
The system is partially inoperative but still usable by
Customer. The inoperative portion of the product severely restricts Customers
operations, but has a less critical effect than a Severity Level 1 condition.
|
|
|
o
|
|
Severity Level 3 (SL3, Minor):
The system is usable by Customer, but with limited
functions. This condition is not critical and does not severely restrict overall Customer
operations.
|
|
|
o
|
|
Severity Level 4 (SL4, Minor):
The system is usable and the condition does not
materially affect Customers operations.
|
4.1.4 Definition of Respond, Restore and Resolve
|
o
|
|
RESPOND means a Seller Customer Support Engineer has contacted Customer regarding
a particular AR and will begin working a proposed solution, repair or fix. In the event
Seller is unable to contact Customer after three (3) attempts, the AR will be closed.
|
|
|
o
|
|
RESTORE means that the problem is remedied sufficiently to return the product or major
feature to operational status. Restore may mean that a temporary fix has been provided to
temporarily correct the problem, or that a workaround has been implemented, or a method
of restoration has been made available to Customer.
|
|
|
o
|
|
RESOLVE means that a solution has been provided to permanently address the issue. This
may occur simultaneously with Restore, unless the Restore is by means of a workaround
suitable only for temporary use and Seller determines that a more suitable permanent
solution can feasibly be provided.
|
4.1.5 Respond, Restore and Resolve Objectives
RTS performance targets for currently supported Maintained Products are outlined in the
following tables:
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
|
|
Description
|
|
Premium Coverage
|
Call
Receipt & Routing
|
|
|
24x7
|
|
|
|
|
Targets
3
|
|
Premium Coverage
|
Respond
|
|
***
|
|
|
***
|
|
|
|
Restore
|
|
***
|
|
|
***
|
|
|
|
Resolve
|
|
***
|
|
|
***
|
|
|
|
2
|
|
Changes not requiring a design change or development of software code. If a design
change or development of software code is required, and Seller elects, based upon its
assessment of technical and economic feasibility, and subject to the applicable software
support policy for the software in question to undertake same ***.
|
|
***
|
|
***
|
4.1.6 Customer Service Delivery Feedback/Escalation
Customer may escalate a problem or provide feedback or complaints on the RTSA Service that is
being delivered or has been delivered. RTSA Service Delivery Feedback is for tasks and provision of
deliverables specifically defined in this document. Customer may initiate escalation or feedback by
calling the TAC number, *** and ask to create a
Delivery
Feedback Assistance Request
to
initiate the process.
4.2 Customer Technical Advocate Support
4.2.1 Description
Seller will provide the Customer Technical Advocate (CTA) for Customer technical consultation
and issue escalation. This support applies to Covered Software in Customers Covered System. CTA
Support services are advisory only and no specific results are assured.
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
***
Support for warranty issues is provided primarily by Remote Technical Support. However, if the
Customer requests CTA support for a warranty related issue under Sellers Product warranties
(Article 2.9) or Software warranty (Article 3.8) in the Agreement, such hour(s) may be chargeable
against the Customers pool of annual consulting services hours.
4.2.2 CTA Tasks/Deliverables
4.2.2.1 CTA Facilitation and Reviews
CTAs will monitor all ARs, and will seek to expedite the closure of a limited reasonable
number of those ARs that Customer identifies as top priority or that Customer escalates in a user
group (e.g., CEMUG) or reported in quarterly conference calls. Hours spent by CTAs performing this
function or providing status updates on ARs to Customer will not count against Customers annual
pool of consulting services hours.
4.2.2.2 Technical Consulting and Knowledge Transfer Support
The elements of Technical Consulting and Knowledge Transfer Support are summarized in this
section. Requests for this support shall be made to Customers CTA, if any, otherwise to Sellers
Sales Organization serving Customer. If Customer requests support outside of normal business hours
(8 am 5 pm local time where CTA is located), or in excess of the applicable limit, then, except
for activities directly and necessarily required to diagnose and/or implement a warranty fix for
which Seller is responsible, Seller reserves the right to bill Customer for such services.
4.2.2.3 Customer Advocacy
While the RTS program is in effect, there will be one or more CTA designated who will:
|
o
|
|
Serve as a single point-of-contact to co-ordinate resolution of multi-product issues
and significant customer issues across organizations.
|
|
|
o
|
|
Manage executive escalations and set up executive meetings, if needed.
|
|
|
o
|
|
Conduct conference calls(s) with Customer at agreed-upon times to review their ARs and
address Customer support issues.
|
|
|
o
|
|
Identify and escalate Customer issues, track key Customer commitments and represent
Seller at joint Customer and Seller conference calls and report card/metric reviews as
necessary.
|
4.2.2.4 Technical Initiatives and Projects
The Seller consultant may, at Sellers discretion, assist the customer in a special
initiatives or projects with a duration of no more than eight hours. Under no circumstances can
that project or initiative be an existing Seller service. If Seller agrees to assist the customer
in that project/initiative, the consultant will act as the primary point of contact and interface
with all other Seller teams, as appropriate.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Some of the activities are:
|
o
|
|
The CTA will work with the customer to address technical issues associated with major,
multi-customer Seller offers (Customer Technical Initiatives). The CTA will interface to
Program Management and development. Some customer technical initiatives might be an
add-on service available at an additional price.
|
|
|
o
|
|
Support customer specific projects such as network reviews.
|
4.2.2.5
Capacity and SW Planning
The Seller consultant may assist the Customer with capacity planning and help identify the
impact of new software releases on system configuration and capacity as follows:
|
o
|
|
Understand control mechanisms and critical action/recovery paths for system
components.
|
|
|
o
|
|
Understand capacity issues and how to measure and manage current capacity.
|
|
|
o
|
|
Provide explanation of related technical matters (i.e., critical triggers, smrg, TFC30
for the 5E and the SCME guidelines).
|
|
|
o
|
|
Keep the customer abreast of the new Software Releases and Software features. The
Seller consultant may also advise the customer on each features capabilities.
|
4.2.2.6 Customer Education
The CTA will facilitate training/teletraining and co-ordinate specialized training to the
customer. This does not include teaching classes.
4.2.3 CTA Exclusions
CTA support does not:
|
o
|
|
Provide any service that is a professional service
|
|
|
o
|
|
Provide consultative support on projects with a duration greater than 8 hours; Support
outside standard working hours (8 a.m. to 5 p.m.) is billable
|
|
|
o
|
|
Provide Customer with formal training, however, may refer Customer to Seller training
organization
|
4.3 Base Release Software and Service (BRSS)
4.3.1 Updates and Upgrades
During any period for which Customer has paid the applicable BRSS Program fees, ***, Seller
will provide to Customer all Software Updates and Software Upgrades that are made generally
available by Seller during such period at no additional charge. Seller will notify Customer of the
availability of each Software Update and Software Upgrade. Such notifications shall include a
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
description of the content of the Software Update or Software Upgrade to be provided by Seller
including a list of all new Optional Software Features. Seller shall also notify Customer of
preconditions (e.g., additional hardware) for installing such Software Update or Software Upgrade
and/or use of any such new Optional Software Features. The fulfillment of all such preconditions
shall be the responsibility of Customer.
Subject to the provisions of Section 4.4 of this Attachment, Seller shall also update
documentation to incorporate new or revised operating procedures resulting from issuance of
Software Updates and Software Upgrades prior to release of such Software Upgrades/Updates.
Software Updates and Software Upgrades shall be individually warranted, as provided in the
Software warranty provisions of the Agreement, and Customer shall have a right to possess and use
Software Updates and Software Upgrades, as provided in the software licensing provisions of this
Attachment. Failure to pay any applicable BRSS fees for Software Updates and Software Upgrades
shall not void or alter the license granted under this Attachment and/or the Agreement for
Software, including prior Software Updates and Software Upgrades properly in Customers
possession. Customer acknowledges that if Customer fails to pay applicable BRSS fees, subject to
the further terms of this paragraph, Customer shall not receive any permanent fixes embodied in
subsequent Software Updates and Software Upgrades, but nothing herein shall be deemed to deprive
Customer of any program corrections, work around procedures or other temporary or permanent fixes
to which Customer may be entitled in respect of software warranty defects noticed to Seller during
the applicable warranty period. Lucent shall not be deemed to be in breach of its Software
warranty obligations under this Attachment with respect to an identified defect, if Lucent has
furnished or intends to furnish, in a timely manner, a permanent warranty fix in a Software Update
or Software Upgrade available to Customer, and Customer shall have no claim for refund or credit
under such warranty provisions in such circumstances. Nothing herein shall excuse Seller of any
obligation Seller may have under applicable warranty provisions of the Agreement or RTS Program to
use all reasonable efforts to effect such a temporary fix pending a permanent fix.
BRSS entitles Customer to use the features and functionality delivered with Software Updates and
Software Upgrades, including, but not necessarily limited to:
|
o
|
|
Software to support system improvements, including performance and operations
|
|
|
o
|
|
Compatibility of existing features with the new release
|
|
|
o
|
|
New base/standard software features and functionalities
|
|
|
o
|
|
Platform for Optional Software Features and optional hardware features
|
|
|
o
|
|
Permanent and/or temporary fixes of problems in prior software releases
|
Optional Software Features resident in a Software Update or Software
Upgrade, are priced as
described in Attachment A or C. Nothing in this Attachment shall be deemed to require Seller to
make any new specific Software features and/or enhancements of Software available as part of
Sellers Software Updates or Software Upgrades. Any Software Updates or Software Upgrades that may
be provided by Seller under the BRSS Program are provided to Customer when generally available.
Seller shall have the sole right to determine whether a new functionality shall be a new Standard
Base Software Release feature or functionality or an Optional Software Feature;
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Except as stated otherwise in this Agreement, Seller reserves the right to determine the number of
Software Updates and Software Upgrades that will be issued each calendar year for each type of
Software covered by BRSS. Seller does not commit that any Software Updates or Software Upgrades
will ultimately be released and made generally available and, therefore, provided during the term
that Customer subscribes to the BRSS Program. Furthermore, Seller does not warrant that any
specific features or functionality will be included in any Software Updates or Software Upgrades
that may be provided under the BRSS prior to the time that a Software Update or Software Upgrade
is released and made generally available.
Nothing herein shall be deemed to deny Seller the right to discontinue products or software in
accordance with its standard policies and/or the terms of this Attachment as applicable;
Sellers current program for Software Upgrades is described in Section 4.4.
Nothing herein shall limit Lucents warranty obligations to Customer.
4.3.2 License Audit
Lucent shall have the right to audit Customers use of the Licensed Materials and/or install
self-auditing software which may be activated and monitored remotely (an Audit), upon notice to
Customer. Lucent may perform such Audit at any time. Customer and its employees, agents and
representatives will cooperate with Lucent and take such action to facilitate each Audit in a
timely matter after Lucents notice to perform an Audit. Software provided to Customer under this
Attachment may contain optional features, which are separately licensed and priced. Customer shall
not activate such optional features without written authorization from Lucent and Customers
payment of the appropriate license fees. If Customer nevertheless activates any optional features
without Lucents authorization, Customer shall notify Lucent within five business days from the
date of Customers knowledge that such features were activated. Customer shall pay Lucent the then
current license fees charged by Lucent for the activated features identified as a result of
Customers notice or Audit.
4.3.3 Distribution
Seller shall deliver software Updates and Software Upgrades in such medium (e.g., electronic
distribution, CD-ROMs, or tapes), as Seller shall determine in its discretion.
4.3.4 Software Delivery
Upon receipt of notice of availability of a Software Update or Software Upgrade, Customer may
indicate its desire to obtain such Software Update and/or Software Upgrade as follows:
4.3.4.1 Retrofits
Retrofits must be scheduled. Customer may request Retrofits through its Seller Account
Executive.
4.3.4.2 Software Updates
Customer
may request Software Updates that are not Retrofits by calling the TAC at ***, or such other number as Seller may designate. Calls must be made
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Monday
through Friday, Lucents holidays excluded, during the hours of
8:00AM to 5:00PM, Central
Time.
4.3.5 Pre-lnstallation Support
Seller shall furnish to Customer, documentation relating to Software Updates and Software
Upgrades that contains information regarding the preconditions to installation that must be
fulfilled by Customer and instructions to be followed during installation. It is Customers
obligation to become familiar with this material prior to commencing any self-installation of a
Software Update or Software Upgrade. ***
4.3.6 Installation Support
During Customers execution of a Software Update or Software Upgrade installation procedure,
Seller shall be available to provide a reasonable level of remote telephone support to resolve
encountered problems. Such support shall be available on a 7x24x365 basis by calling the TAC at
***, or such other location as Seller may designate.
4.3.7 Retrofit Support
In addition to standard pre-installation and installation support, Seller will provide to
Customer additional tools and Services when a Retrofit is involved if customer is subscribing to
BRSS. Retrofits are involved when an ECP Major Release or a 5ESS Major Release is replaced by a
newer Major Release. A Retrofit requires the use of specialized software and procedures to evolve
existing database translations in order to make a product ready to receive and operate a new Major
Release. Retrofit procedures will vary from Major Release to Major Release.
4.3.7.1 ECP Retrofits
Seller
will provide, *** an on-site Retrofit
(OSR) software tool that may be run by Customer on Customers OMP to perform selected activities
relating to evolving database translations. If Customer elects to utilize the On-Site Retrofit
(OSR) software tool, Seller, through its ODD Retrofit Group, will provide remote telephonic support
for requirements issues and error resolution. This support is available Monday-Friday, Sellers
holidays excluded, during the hours 8:00AM 5:00PM, Central
Time, by calling the TAC at ***, or such other number as Seller may designate. Requests for such support
outside of these hours will be treated as non-emergency Assistance Requests and are subject to
billing on a T&M basis. (Such out-of-hours support is not included as part of BRSS or RTS.)
4.3.7.2 5ESS Retrofits
Seller will provide, as part of BRSS, 5ESS Switch Retrofit software. Procedures will be
announced to Customer as appropriate.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
4.3.7.3
1xEVDO Retrofits
1xEV-DO Major Releases are bundled with the ECP Major Releases.
4.4 Software Support Policy
4.4.1 Normal Progression/Skipping
Sellers software is typically designed for sequential Retrofit/upgrade progression (for
example, Major Release N to Major Release N+1). In some cases, skip Retrofits may be available
(for example, Major Release N to Major Release N+2, skipping Major Release N+1). Seller makes no
commitment that any Major Release can be skipped. Moreover, where skipping is available,
additional charges may apply. Customer should evaluate each new Release, consider its application,
consider the availability of skipping or the lack thereof, and select the Software migration plan
that best suits its needs.
4.4.2 Major Release Life Cycle Ratings
Software ratings apply to Major Releases. Once a Major Release becomes generally available to
Sellers Customers, it begins to migrate through four (4) product ratings during its life cycle;
Standard Availability (SA), Additions and Maintenance (A&M), Limited Availability (LA), and
Discontinued Availability (DA). Differently rated Major Releases are subject to different levels
of support and use. The length of time that a Major Release remains at each product rating varies
depending upon Sellers schedule for issuing new Major Releases.
When a software release has been declared generally available, it moves into the SA stage and
remains in that classification until the next sequential Major Release has been declared generally
available at which time the original release moves down in rating. For example, once made generally
available, Major Release N will remain SA until Major Release N+1 is issued. At that time, Major
Release N will move down one rating to A&M. With the issuance of Major Release N+2, Major Release N
moves down one rating to LA. With issuance of Major Release N+3, Major Release N will move down to
the final DA rating.
Any Software Update that is issued during a rating period will not change or otherwise affect the
rating of the Major Release. For example, if while ECP Major Release N is rated SA, Seller issues a
Point Release (N.1) for that release, Major Release N will retain its SA rating. Such Software
Update shall be considered part of the Major Release and will have the same rating as that Major
Release.
Support for differently rated Major Releases is described in Section 3.5.3
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
4.4.3 Support Availability for Different Software Ratings*
|
|
|
|
|
|
|
|
|
|
|
SA
|
|
A&M
|
|
LA
|
|
DA
|
SUPPORT
|
|
|
|
|
|
|
|
|
Outage
|
|
***
|
|
***
|
|
***
|
|
***
|
Non-Outage
|
|
***
|
|
***
|
|
***
|
|
***
|
SOFTWARE ISSUED
|
|
|
|
|
|
|
|
|
Software Updates
|
|
***
|
|
***
|
|
***
|
|
***
|
SOFTWARE
|
|
|
|
|
|
|
|
|
MODIFICATIONS MADE*
|
|
|
|
|
|
|
|
|
Outage
|
|
***
|
|
***
|
|
***
|
|
***
|
Billing/call
Processing
|
|
***
|
|
***
|
|
***
|
|
***
|
Non-Service Affecting
|
|
***
|
|
***
|
|
***
|
|
***
|
Software Enhancements
|
|
***
|
|
***
|
|
***
|
|
***
|
Special Features
|
|
***
|
|
***
|
|
***
|
|
***
|
PROCEDURES
|
|
|
|
|
|
|
|
|
Retrofit From
|
|
|
|
|
|
|
|
|
Retrofit To
|
|
***
|
|
***
|
|
***
|
|
***
|
Procedures Archived
|
|
***
|
|
***
|
|
***
|
|
***
|
Support Tools Archived
|
|
***
|
|
***
|
|
***
|
|
***
|
New Start Cutover
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
***
|
|
***
|
RELEASE SPECIFIC
|
|
|
|
|
|
|
|
|
Software Maintained
|
|
***
|
|
***
|
|
***
|
|
***
|
Documentation
|
|
***
|
|
***
|
|
***
|
|
***
|
Maintained
|
|
|
|
|
|
|
|
|
Software Archived
|
|
***
|
|
***
|
|
***
|
|
***
|
Documentation Archived
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
+
|
|
Seller reserves the right to implement fixes in software to problems in succeeding
Major Releases of that software.
|
|
1
|
|
Available only if considered a Severity 1 or 2 problem.
|
|
2
|
|
Available only if considered a Severity 1 problem.
|
|
3
|
|
Available for attempted recovery only of the most recently DAed release, using
Customers copy of the software. Seller makes no commitment that it can or will provide any
fix or workaround by overwrite or any other method. When a Software release reaches DA,
Assistance Requests are no longer addressed.
|
|
4
|
|
These are limited to the first year of DA rating.
|
|
5
|
|
Limited to the most recent DAed Release. Any Release older than the most recent
DAed Release will require a Warmstart to migrate to a newer Release.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
5
Customer Responsibilities
Customer shall:
|
o
|
|
Provide the proper environment, electrical and telecommunication connections in
conformance with product technical specifications. This includes maintaining capacity and
throughput in accordance with specific guidelines of Maintained Products.
|
|
|
o
|
|
Ensure that Maintained Products are in operating condition, and operate on current
supported hardware and software releases.
|
|
|
o
|
|
Ensure that Maintained Products are maintained with implementation of Software Updates
and Class A changes, within a 30-day interval of availability.
|
|
|
o
|
|
Maintain maintenance support agreements for 3
rd
party platforms that
interact with Maintained Products.
|
|
|
o
|
|
Ensure that Seller and relevant third party software manufacturers applicable
installation, operation, administration, and maintenance instructions are complied with.
|
|
|
o
|
|
Move Maintained Products only with Sellers prior written consent, which consent shall
not be unreasonably withheld in the case of movement from one designated processor to
another in the same country, and notifying Lucent of the new location of any relocated
Maintained Products. Customer may, however, move or change circuit packs or Cells within
a Market or inter-Market without such consent or notification.
|
|
|
o
|
|
Provide secure VPN access to Maintained Products.
|
|
|
o
|
|
Maintain a procedure external to the Software programs for reconstruction of lost or
altered files, data, and/or programs.
|
|
|
o
|
|
When reporting an AR, include Severity Level of problem and output of any diagnostics,
printed logs, already performed to help reproduce the conditions under which the trouble
occurred. Identify site ID or contract number, submitter name & location, callback
telephone number and/or email address, system name & location, processor location, type
and serial number, and alternate contact.
|
|
|
o
|
|
Make trained technical staff available for interface to Seller engineers working an AR
to report on-site conditions. Any delay time caused by Customer may be deleted from
performance objectives.
|
|
|
o
|
|
Purchase of Software and Hardware maintenance directly from third party or via Seller
resale to maintain non-Seller platforms, which support covered software.
|
5.1 Customer Responsibilities Concerning Lucent Web Site Access
By accessing any Lucent.com Web site to which Seller affords Customer access, for or in
connection with its technical support service, Customer agrees to the following:
|
o
|
|
Customer shall not enable or permit Lucent.com web site access to any person other
than its employees, without Sellers prior written consent;
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
o
|
|
If requesting such consent, Customer shall identify to Seller any non-employee
who Customer would like to have access to the Web site, and if requested by Seller, will
provide a copy of a non-disclosure agreement executed between Customer and the
non-employee in accordance with the confidentiality terms of the Attachment pursuant to
which the Maintained Products were supplied. Such agreement will provide, at a minimum,
the level of protection provided in this contract. Seller may refuse consent within its
sole discretion;
|
|
|
o
|
|
Customer must notify Seller in writing immediately of any change in the employment or
authorization status of any personnel having authorized access to the Web site;
|
|
|
|
|
All notifications described above should be sent to *** and
should contain the following information:
|
|
Ø
|
|
Company name
|
|
|
Ø
|
|
Users first and last name
|
|
|
Ø
|
|
Users email address
|
|
o
|
|
Customers use of any Lucent.com Web site is subject to all Terms of Use then set
forth or linked to the Web site. Such Terms of Use shall in no event be construed to
increase Sellers obligations under this Attachment nor to create or modify any
performance objectives for the services under this Attachment.
|
Without limiting Sellers other rights, Seller may deny access immediately and in the future to
individuals using the Web site other than as permitted. Seller shall have no liability to Customer
on account of such denial.
6
Exclusions
RTSA in general does not include items not described in this Attachment. Examples of items
that are specifically excluded from this Attachment include, but are not limited to:
|
o
|
|
Equipment certification, as required per Sellers policy on equipment not installed by
Seller, or lapse in RTS coverage that spans more than ***, or equipment that has been
moved; However, this exclusion does not apply to circuit packs or Cells that are moved or
self-installed by the Customer within a Market or inter-Market or Equipment that has been
moved by Seller.
|
|
|
o
|
|
Repair or replacement of product components;
|
|
|
o
|
|
Lab and trial support;
|
|
|
o
|
|
On-site technical support. RTS is typically provided from the TAC or other Seller
location that is remote from the site where Customers systems are located. At Sellers
discretion, Seller may dispatch personnel and or equipment to Customers site for
diagnostic purposes. At Customers request, and as agreed to by Seller, Seller may
provide on-site technical assistance in problem resolution beyond such remote support.
On-site assistance is not included in RTS, and will be billed to the Customer at Sellers
then
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
standard rate plus Travel and Living expenses (T&L), subject to a billing minimum of
*** per day;
|
|
|
o
|
|
Performing preventive maintenance for the Maintained Products;
|
|
|
o
|
|
Deployment
services, integration services, or custom modifications;
|
|
|
o
|
|
Support for custom software features, that is, any features that are not present in
the generally available version of the Maintained Products or software;
|
|
|
o
|
|
Support for third-party software not licensed to Customer by Seller;
|
|
|
o
|
|
Creating or making corrections to Customer specific reports;
|
|
|
o
|
|
Services to implement CTA recommendations or suggested solutions.
|
|
|
o
|
|
Loss of any data or the cost of reconstructing data lost during the performance of RTS
service. In no case shall Seller be held responsible for such loss;
|
|
|
o
|
|
Making specification changes or performing services connected with installation or
relocation of the Maintained Products;
|
|
|
o
|
|
Work external to the Maintained Products, whether or not on the designated processor
used in conjunction with the Maintained Products;
|
|
|
o
|
|
Assistance, including without limitation, modification or replacement of the
Maintained Products, repair of damage, or increase in service time caused by or required
as a result of any of the following:
|
|
Ø
|
|
Failure to continually provide a suitable operational environment with
all facilities prescribed by the applicable product specifications document
including, but not limited to, the failure to provide or the failure of, adequate
electrical power, air conditioning, or humidity control;
|
|
|
Ø
|
|
Use of the Maintained Products in a manner not in accordance with its
published specifications, operating instructions, capacity guidelines, or
license-to-use;
|
|
|
Ø
|
|
Failure to properly maintain or backup Covered Software on the system,
to observe operating guidelines, to maintain Third-party platforms, software or
equipment as described in Section 5.
|
|
|
Ø
|
|
Force Majeure Events, including accident; disaster, which shall
include, but not be limited to, fire, flood, earthquake, water, wind or lightning;
transportation difficulties; terrorism or other hostile action; neglect; or misuse;
except as follows: In the event of a service interruption caused by a Force Majeure
Event Seller will make every commercially reasonable attempt to restore service on
the Maintained Products. If, however, service is not restored within 12 hours,
Seller and Customer will mutually agree on next steps to be taken, which may
include the purchase of disaster recovery services to restore service.
Additionally, the commercially reasonable efforts contemplated by the provision
do not include the provision of new or additional
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
19
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
hardware or software or performance of on-site services, which if available
would require payment of additional charges;
|
|
|
Ø
|
|
Modifications, maintenance, or repair performed by other than Seller
designated personnel, including charges not authorized by Seller in the Maintained
Product or software or the hardware or the software environment in which the
Maintained Product or software operates, including without limitation the
introduction of updates of third party software or hardware that have not been
validated by Seller;
|
|
|
Ø
|
|
Attachment of unspecified, non-recommended or non-approved products to
the Maintained Products, or repairs required as a direct result of failure of a
processor or other equipment or software not maintained by Seller, or failure of
removable or rotating storage media;
|
|
|
Ø
|
|
Database problems: If the condition is determined to be the result of
corruption of the Maintained Products database, and such corruption is not the
direct result of the Maintained Products, the condition will be referred back to
Customer. However, if corruption is the result of, or caused by, Sellers
Maintained Products, Seller shall manage the resolution of the problem, at no
additional charge;
|
|
|
Ø
|
|
Hardware/firmware problems: When a condition has been isolated to a
hardware or firmware problem on a product that is not covered under this
Attachment, the condition will be referred back to Customer for disposition
under whatever maintenance arrangements Customer may have for such hardware or
firmware;
|
|
|
Ø
|
|
Other/interfacing systems problems: If the condition is determined to
be caused by systems other than the Maintained Products, including, but not limited
to, systems that interface with the Maintained Products, the condition will be
referred to Customer for corrective action unless the other system(s) has been
furnished by Seller and is covered under this Attachment, in which case Seller
shall manage the resolution of the problem.
|
7
Assumptions/Eligibility For
RTSA
7.1 Equipment Manufactured, and Installed by or Purchased from Seller
RTSA is offered only for software purchased from Seller residing on equipment manufactured by
Seller or for Seller pursuant to specifications controlled by Seller. Standard Base Software
Releases furnished by Seller are eligible for updating and related services under BRSS without
initial evaluation by Seller, provided BRSS commences not later than the end of the applicable
warranty period for the respective software.
Equipment and Covered Software in the Covered System must have been purchased directly from Seller
or a Seller authorized supplier, installed and/or integrated by Seller, or installed by Customer
where Self-Install Agreement is required, as described in Attachment I. Equipment and software in
the Covered System not meeting these criteria, with the exception of circuit packs, is subject to
Seller observation and/or eligibility test. Such observation and eligibility test will be available
only at a separate fee and will be billed at Sellers then standard rate.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
20
\
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
7.2 Other Situations
In all other situations, software shall not be eligible for RTSA until Seller, at its option,
has made an initial evaluation to determine whether modifications are required to make the
software eligible. Billing to Customer for such observations will be on a time and material basis.
If, in Sellers judgment, modifications are required for eligibility, Seller will provide an
estimate to Customer of the costs of making such modifications, including the price for updating
the software to a current, supported Standard Base Software Release. Upon Customers acceptance of
the estimate, Customer will be billed based on Sellers estimate for such evaluation, and any such
modifications furnished by Seller. Software will not be eligible for RTSA unless Seller determines
that the software is in good working order in accordance with its specifications and can be
maintained in such condition.
7.3 Customers Warranties of Authority
Customer warrants, as a condition of eligibility, that Customer is the owner or lessor of any
equipment that runs the software for which RTSA will be provided under this Attachment, or that
Customer has the equipment owners written authorization to operate such equipment and obtain such
support services under this Attachment. Customer further warrants that Customer is the licensee of
the software for which BRSS will be provided under this Attachment and is complying with the terms
of the license.
AMPS/PCS System Level Support RTSA Service is available only on a system basis as defined by
Maintained Products in Section 9.1. Customer must maintain the same support coverage under this
Attachment for all of the Maintained Products in all of its markets; and each system must be
operating on a Standard Base Software Release as defined in Section 11.
7.4 Support For Relocated Software
Software to be supported by Seller under this Attachment, which is moved by Seller to another
Designated Processor of Customer within the Territory, and Software which is moved by Seller
together with its Designated Processor to another location of Customers within the Territory,
shall continue to be covered by Customers BRSS.
Should Software be moved and/or de-installed and/or re-installed by a Party other than the Seller
or Sellers Subcontractor, Customer agrees to the following:
|
o
|
|
Provide Seller with (30) days prior written notice of such relocation
|
|
|
o
|
|
Pay additional charges if the move increases Sellers costs or expenses of providing
BRSS
|
|
|
o
|
|
Seller reserves the right to inspect (one time) the software as installed at the new
location to determine its eligibility for support as provided in Section 7.5 of this
Attachment.
|
|
|
o
|
|
Seller further reserves the right to supervise the unloading (if any) of the Software
from the processor and the reinstallation of the Software at the new installation
location. If Seller chooses to perform the above stated inspection and/or supervisions,
Seller shall be entitled to be compensated for such services at Sellers then standard
rate.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
21
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
7.5 Commencement of RTSA
7.5.1 General.
Certain of
the RTSA program benefits are subject to allocation as provided in Section 9.2.
This general provision is subject to certain special rules set forth in this section.
7.5.2 First System
***
Upon payment of the Initial Operating Fees, Customer shall be entitled to BRSS upon systems In
Revenue Service date until the end of the period specified in Attachment A and Attachment C.
Following such period, BRSS coverage will be extended to such system(s) only after Customer has
submitted a Purchase Order for the applicable remaining calendar months or next calendar year, and
Seller has received payment based on the pricing and terms described in Attachment A and
Attachment C. If Seller does not install all of the system, such support will be provided only
upon written request of Customer made within thirty (30) days of completion of installation of the
system and after the system has been deemed eligible for such support, as provided in Section 7.2
above.
7.5.3 Additional Systems
If Customer has existing systems covered by RTS, any new Seller manufactured or furnished
system, deployed by Customer whether or not purchased from Seller under this Agreement, shall
receive RTS coverage ***. Following such period, RTS coverage will be extended to such
system(s) only after Customer has submitted a Purchase Order ***, and Seller has received payment based on the pricing and terms
described in Attachment J. ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
22
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
7.5.4 Addition of Existing Systems
Notwithstanding Section 7.5.3 above, if Customer obtains from any third party additional
existing systems by purchase, lease, merger or otherwise, such acquired systems shall not
automatically be included in the group of Customers systems covered by RTSA. However, upon
request of Customer, which Lucent shall not unreasonably withhold or delay, and subject to mutual
agreement as to fees and other appropriate terms and conditions, such existing systems may be so
included. This support starts only after the existing system has been deemed eligible for such
support, as provided in Section 7.2 above.
8
General Terms
Unless otherwise stated in previous sections of this Attachment, the following applies to all
services. Additional terms and conditions are per the Agreement.
8.1 Conditions
|
o
|
|
Seller reserves the right to determine which personnel to assign to perform
Services. Seller personnel shall at all times be subject to the employment conditions of
Seller and not those of Customer, but all such employees shall be qualified and certified
on the Products and Software.
|
|
|
o
|
|
Seller may use proprietary tools and Software for providing this service. The stated
price does not include the sale, licensing or transfer of such tools or software to
Customer.
|
|
|
o
|
|
All work will be performed during normal business hours 8:OOAM to 5:OOPM, local time,
Monday through Friday unless different working hours/schedule have been noted in the
appropriate Service Description section.
|
8.2 Change Management
Change Management shall be performed in accordance with the terms and conditions of Attachment
F.
8.3 Acceptance
Acceptance shall occur in accordance with Section 2.10 of the Agreement.
8.4 Warranty
Warranty shall be in accordance with Section 4.7 of the Agreement.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
23
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
9
Pricing Section
9.1 Determination of Pricing Units
*** Promptly following June 30
th
and December 31
st
of each
calendar year, Customer shall provide to Seller in writing a count of the covered ECPs and RNCs,
which shall serve as the Pricing Units used for calculating RTS fees as described in Attachment J.
Promptly following December 31
st
of each calendar year, or as stated otherwise in
Attachment A or Attachment C, Customer shall provide to Seller in writing a count of the covered
MSCs, which shall serve as the Pricing Units used for the calculating BRSS fees as described in
Attachment A and Attachment C. Such count is subject to verification by Seller, and to certain
special rules set forth in Sections 7.5. Customer grants Seller the right to use any information
learned by Seller in performing services under this Attachment in connection with any verification
activities.
9.2 Pricing Notes:
|
o
|
|
All prices are in $US, unless stated otherwise.
|
|
|
o
|
|
Seller will invoice Customer for RTSA services prior to the commencement of
services for the calendar year, and will invoice subsequent year in advance prior to the
start of each year. ***
|
|
|
o
|
|
Unused services in a calendar year will not be carried over to a subsequent
year.
|
|
|
o
|
|
When a RTSA program is provided for less than a full year, the following
adjustments apply:
|
|
Ø
|
|
Customer will be entitled to 1/12th of the annual Consulting services
hours for each full month during which the Customer will be receiving RTSA program
Service.
|
|
o
|
|
***
|
|
|
o
|
|
Additional charges incurred at Sellers then standard rate as provided in
this Attachment are separately billable and may be invoiced monthly by Seller or at the
time of completion.
|
|
|
o
|
|
Addition of Existing Software: If Customer obtains from any third party
additional existing systems then providing service to the public, by purchase, lease,
merger or otherwise, such acquired systems shall not automatically be included in the
group of Customers systems, if any, then covered by RTSA. Upon request of Customer,
Lucent will provide Customer a quotation including such acquired systems in the RTSA
service.
|
|
|
o
|
|
Seller may upon notice to Customer suspend performance of any RTSA service
under this Attachment during any period when an invoice rendered hereunder for RTSA
service
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
24
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
remains unpaid past its due date.
|
|
|
o
|
|
Pricing for RTS service is detailed in Attachment J. Pricing for BRSS is detailed in
Attachment A and Attachment C.
|
|
|
o
|
|
The annual RTSA services pricing is valid through the end of the Initial Term ***. Customer agrees to
reimburse Seller for all reasonable travel, living, and other related out-of-pocket
expenses associated with all RTSA services provided by Seller to the extent any travel is
requested by Customer or is necessary to provide any requested Services.
|
|
|
o
|
|
Prices are based upon purchase of RTSA for the entire agreed Term. Accordingly, and
notwithstanding any other provision of the Agreement, there is no right by Customer to
terminate this Attachment for convenience during the course of the Initial Term or any
Renewal Term.
|
10
Pricing
10.1 Maintained Products for RTS and BRSS
The services described in this Attachment are for the following software products used in
Customers PCS network. The pricing and terms of support of software not described in this
section, including software developed by Seller, for Seller pursuant to Seller specifications,
or Third-party software resold by Seller may be added to this Attachment or covered under a
separate Attachment as mutually agreed between the parties.
10.1.1 Maintained Products
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
25
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
o
|
|
Software Updates and Software Upgrades to the software packages set forth above.
|
|
|
o
|
|
Such other software as Seller may agree in writing.
|
10.1.2 1 XEVDO Maintained Products
The Maintained Products also include the following 1xEV-DO software if present in the Covered
Systems:
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
|
|
o
|
|
***
|
10.1.3 Optional Feature Support
RTSA covers the on-going maintenance of Optional Software Features for those features, and
for which the Customer has paid the applicable separate license fee. This maintenance is available
for all Optional Software Features.
11 GLOSSARY
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement
unless otherwise defined in this Attachment. For purposes of this Attachment, the following
additional definitions shall apply:
1xEVDO means 1x Evolution (Data Only), a high-speed data solution supporting data rates up to
2.4mbits/second.
7X24X365 means seven days a week, 24 hours a day and 365 days a year.
Assistance Request and AR means a request for RTS support, as described in Section 4.1 of this
Attachment.
BRSS Program and BRSS means the optional program under which Seller offers to Customer, Major
Releases, Point Releases, Software Updates and Crafts for software for which Customer has paid the
applicable Fee, as more particularly described, as more particularly described in this Attachment.
Cell means a PCS or AMPS base station installed in any
of Customers commercial AMPS/PCS systems
in the Covered Systems that has a unique identifier to a Customer Mobile Switching Center (MSC) or
1xEV-DOR NC, such as a cell ID (identification) number, whether or not such
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
26
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
base station was manufactured, installed or sold by Seller. For example, two AMPS cells in
one physical location (co-located) constitute two cells if they are uniquely identified to the
MSC(s) serving them except for base stations used to provide sector service. Similarly, if AMPS or
PCS cell is split for capacity or other reasons, the cell count will be increased based on the
cell IDs generated by the split except for base stations used to provide sector service. And, for
example, if a PCS cell is added at a location where an existing AMPS cell exists and generates
another cell ID, the PCS cell constitutes a cell for purposes hereof. Notwithstanding the
foregoing, a Seller-manufactured Microcell will be counted as a cell in determining fees for RTS
Programs. The term Cell as used herein includes comparable equipment manufactured by a third
party manufacturer.
Covered Systems means those PCS systems operated by Customer in the Franchised Area that, at the
time of determination for purposes of this Attachment, are served by ECPs and is limited to the
Maintained Products.
Craft means a small Software release containing a collection of minor software changes, to a
Major Release. Typically a Craft contains less extensive Software changes than those included in
Point Releases or Software Updates.
Customer Technical Advocate and CTA means a person assigned by Seller pursuant to Section 4.2.
ECD means equipment configuration database.
ECP means a Seller-manufactured executive cellular processor installed in any of Customers PCS
systems in the Covered Systems, whether or not such ECP was installed by or sold to Customer by
Seller, and regardless of the technology supported by such ECP (e.g., analog, and CDMA).
First System means the initial equipment in a new market that completes installation and
integration, rendering it commercially viable. The initial equipment may comprise of at least one
CDMA ECP and its associated Base Station or one 1xEVDO-RNC and its associated Data Cell for which
Customer has been invoiced.
Franchised Area means the area(s) for which the Federal Communications Commission in the United
States or a comparable government agency has granted a permit to construct and operate one or more
CDMA system(s), including any non-designated areas contiguous to the Franchise Area, and in which,
under such agencys applicable rules, Customer will be able to provide a wireless
telecommunications service in such area(s) utilizing such system(s).
Initial Operating Fees (IOF) means those fees paid upon initial provision of software for the
right to use such software. Such a fee includes RTSA for the period of time described in Section
7.5
Major Release means an issue of software, which significantly adds to, improves or enhances
existing base or standard software features and capabilities of the prior Major Release involving
more extensive changes to the underlying source code or the user interface than is the case in a
Point Release or a Craft. A Major Release may also correct defects in earlier releases. The term
Generic Release is synonymous with Major Release. A Major Release may also provide new optional
software features, which Customer may acquire for additional license fees.
ODD means office dependent data.
OMP-FX is the Operation and Maintenance Platform for Flexent installed in any of the Customers
1xEVDO Data Networks in Covered System.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
27
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Optional Software Feature means a feature or functionality of software resident in a Major
Release but which is not licensed to Customer as part of BRSS and is available for use by Customer
only if Customer pays the applicable separate license fee therefore.
Pick-A-Pack Program shall have the same meaning defined in Attachment A and Attachment C.
Point Release means a superseding issue of software, which adds to, improves or enhances
existing features and capabilities of the Major Release of the software with which it is
associated. A Point Release may also correct defects in earlier releases.
Pricing Units mean the pricing elements that are used to compute annual fees for the RTSA
Service, as described in Section 9.1 of this Attachment.
Remote Technical Support RTS mean the collection of post-deployment support services provided
under this Attachment as defined in this Attachment.
Retrofit, means a replacement of an existing Major Release (including any subsequently issued
Point Releases) with a Software Upgrade that constitutes a new Major Release. Retrofits require
modifications of the ODD and/or the ECD.
Severity 1, Severity 2, Severity 3 and Severity 4 mean the severity levels described in
this Attachment.
Software Update means a partial update of existing software provided to Customer in
consideration of Customers payment of BRSS fees, and containing one or more of the following, in
any combination: (i) improvement in basic call processing capabilities, as well as basic system
operation and maintenance, (ii) changes to maintain compatibility between a new system release and
features existing in a prior system release (when initially introduced, a new system release may
not always be fully compatible with features available immediately prior to such release), (iii) a
platform for optional software features, and (iv) consolidations of periodic fixes and overwrites.
A Software Update can also be a Point Release or a Craft, if it meets any of those definitions.
Seller does not commit that any Software Updates will ultimately be released, made generally
available and therefore provided during the term that Customer subscribes to the BRSS Program.
Furthermore, Seller does not warrant that any specific features or functionality will be included
in any Software Updates that may be provided under the BRSS Program prior to the time that a
Software Update is released and made generally available to all BRSS subscribers
Software Upgrade refers to a Major Release provided to Customer in consideration of Customers
payment of BRSS fees. In addition to the four Software Update criteria mentioned above, a Software
Upgrade may also provide infrastructure changes. A Software Upgrade differs from a Software Update
in that only a Software Upgrade can provide infrastructure changes. Seller does not commit that any
Software Upgrades will ultimately be released, made generally available and therefore provided
during the term that Customer subscribes to the BRSS Program. Furthermore, Seller does not warrant
that any specific features or functionality will be included in any Software Upgrades that may be
provided under the BRSS Program prior to the time that a Software Upgrade is released and made
generally available to all BRSS subscribers.
Standard Base Software Release means the two most recent Major Releases that have been declared
generally available. For example, if Major Release N is the latest generally available release, it
and Major Release N-1 are considered Standard Base Software Releases.
T&M basis means time and material, at Sellers then prevailing rates to the extent that
applicable rates are not set forth in the Attachments A, C and J.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
28
|
|
|
|
|
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
Third Party Software means software developed and owned by a third party using their own
specifications and licensed to Seller. Any third party warranties are a pass through to Customer.
TAG means Sellers Technical Assistance Center or equivalent designated center. Seller
reserves the right to provide the services described herein from one or more such centers.
Warmstart means the service under which Seller will provide the support services necessary to
upgrade (evolve) Customers ECP and 5ESS databases if the Covered System is not on the current
software release as defined in this Attachment.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
29
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
12
|
|
Multivendor Maintenance Service for Sun
Products (Sun MVM)
|
12.1 Elements of Work and Lucent Responsibilities
The services described in this Attachment are for the Sun products incorporated into the
Maintained Products.
Messaging solutions/offers, which contain Sun products, include:
12.1.1 Description
Lucents multivendor maintenance service for Sun products (MVM SUN) provides the
maintenance services listed below for the Sun products incorporated into Lucent-supported products
and solutions installed at Customers locations in the United States. MVM SUN service consists of:
|
o
|
|
Hardware repair or replacement of all defective FRUs
|
|
|
o
|
|
On-site Dispatched Technician, if no remote solution is available, for hardware
repair or replacement
|
|
|
o
|
|
Sun software updates and upgrades if and when available, and if Customer is
entitled to the update and/or upgrade in accordance with Suns software licensing and
support policies. Lucent does not commit that any software upgrades will ultimately be
released, made generally available and therefore provided during the term that Customer
subscribes to this service. Furthermore, Lucent does not warrant that any specific
features or functionality will be included in any software upgrades that may be provided
under this service.
|
12.2 Tasks/Deliverables
During the period for which Customer subscribes to MVM SUN service, Lucent will provide the
following maintenance services for the Maintained Products.
12.2.1 MVM SUN Response Time Objectives
Lucent will initiate an On-site Repair Request to be performed under the terms of this
Attachment only after Lucent acknowledges the Customer-initiated AR that should be submitted under
the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
30
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
RTS service as described in Section 2.2, and the following conditions are met: (1) a Lucent
technical support engineer determines a part to be suspected faulty, OR (2) Customer has
successfully diagnosed and isolated a faulty part, AND (3) a Lucent technical support engineer
acknowledges Customers analysis and identifies the suspected faulty part identification number or
code.
Response time is defined as: The point in time from when Lucent requests a technician to be
dispatched to Customers site (On-site Repair Request) to the time of the technicians arrival at
that site.
Response time objectives are:
|
o
|
|
MVM SUN UPLIFTED SILVER 24x7:
|
|
|
Ø
|
|
Severity 1 (System down/urgent) situations: ***
|
|
|
|
Ø
|
|
Severity 2 (System impaired) situations: ***
|
|
|
|
Ø
|
|
Severity 3 (System operation normal): ***
|
Response time may be affected by weather or other circumstances not in Lucents reasonable
control. Response times above apply to systems located within a 30-mile (50 KM) radius of a local
service office. Coverage for suburban and rural USA sites over 30 miles from a local service
office and non-USA sites is on a case-by-case basis. Please contact your Lucent sales
representative for more details regarding availability.
12.2.2 On-site Dispatched Technician
If a problem cannot be resolved remotely, Lucent will send a technician to perform on-site
troubleshooting, repair, and testing of the Sun product at Customers location to resolve
equipment issues.
If the location of the failed FRU is more than 30 miles from the nearest Sun service location
additional response time and an increase in the standard service price may be required.
Lucent is responsible for the following activities:
|
o
|
|
Verification of trouble description with Customer.
|
|
|
o
|
|
Review of active alarms and equipment alarm history.
|
|
|
o
|
|
Diagnose reported trouble and alarms using available test equipment and
tools.
|
|
|
o
|
|
For hardware failure of supported product, dispatch technician to
repair or replace the defective part and off-line test.
|
|
|
o
|
|
For non-supported equipment, refer trouble back to Customer for resolution.
|
12.2.3 Hardware FRU Repair or Replacement
|
o
|
|
Repair or replacement of the Sun product FRU as part of MVM SUN service
will be available in accordance with the level of service selected. In some cases, Lucent
may
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
31
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
|
|
arrange for a courier to deliver the FRU to Customers location. In such cases, Lucent may
require Customer to attempt to replace the unit prior to Lucent dispatching a technician
to Customers location.
|
|
|
o
|
|
Lucent is responsible for the following activities:
|
|
|
Ø
|
|
Dispatch and monitoring of on-site repair technician (if no remote remedy is
available)
|
|
|
|
Ø
|
|
On-site repair of contracted Sun product hardware.
|
|
|
|
Ø
|
|
Provide Sun product FRU(s) as required to restore the unit to original operating
condition.
|
|
|
|
Ø
|
|
Technician removal of bad FRU(s) for repair.
|
|
|
|
Ø
|
|
Provide all mandatory hardware field changes.
|
12.2.3.1 Hardware Repair Notes:
|
o
|
|
For non-Sun FRUs not covered under this Attachment, standard Lucent
Repair & Exchange Services (RES) are available.
|
|
|
o
|
|
Sun hardware repair or replacement availability is dependent upon the
availability of spares from the manufacturer.
|
|
|
o
|
|
All failed FRUs replaced by Lucent become the property of Lucent or its
suppliers.
|
12.3 Customer Responsibilities
To be eligible for MVM SUN service, Customer is required to maintain a valid Lucent Remote
Technical Support (RTS) contract on Customers applicable Lucent-supported solution, platform or
product, including the Maintained Products.
Customer agrees to purchase and maintain a contract with Lucent for Remote Technical Support
services for each associated system or product that includes a covered Sun Product that is
consistent with the Term and Coverage Period of this MVM SUN service.
Customer will provide to Lucent on Lucent Services Start Form the following product detail for each
Maintained Product:
|
o
|
|
Lucent assigned product identification
|
|
|
o
|
|
Product description
|
|
|
o
|
|
Product serial numbers (Lucent and Sun)
|
|
|
o
|
|
Product address (equipment site)
|
|
|
o
|
|
Product configuration (parts listing)
|
|
|
o
|
|
Lucent assigned part identification
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
32
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
o
|
|
Major part serial numbers (chassis, external disk unit, removable disk
drives, etc.)
|
In addition, Customer is responsible for the following throughout the term of this Attachment or
any extensions:
|
o
|
|
Provide the Lucent Account Manager/Services Account Manager with a
complete listing of all products to be covered under MVM SUN service, in accordance with
the service start-up requirements to properly establish service entitlement.
|
|
|
o
|
|
Provide a serial number, site ID or contract number when requesting
service.
|
|
|
o
|
|
Provide the proper environment and electrical and telecommunications
connections as specified by Lucent.
|
|
|
o
|
|
Provide remote access to the products to enable Lucent or its
representatives to perform remote technical support at a time and for a length of time
mutually agreeable to both Customer and Lucent.
|
|
|
o
|
|
Maintain a procedure external to the Software and host computer for
reconstruction of lost or altered files, data, or programs. Lucent will make reasonable
efforts to permit data to be saved/retrievable when feasible; however, Lucent will not be
responsible for the cost of reconstructing data stored on disk files, tapes, memories,
etc. lost during the performance of MVM SUN service.
|
|
|
o
|
|
Removal of the defective hardware from active service and mounting rack
as required for troubleshooting and repair.
|
|
|
o
|
|
Ensure that authorized staff for operation and maintenance is
available during the entire support/repair period to provide Lucent or its contractor
with information (e.g., model, serial number, current failure symptoms, local procedures
and requirements, etc.) upon request so that Lucent can provide Customer with proper
support.
|
|
|
o
|
|
Maintain software where any modifications made are approved by Lucent.
This includes updates from manufactures of third party software.
|
|
|
o
|
|
Follow all of Lucents installation, operation, software and
maintenance instructions.
|
|
|
o
|
|
Provide the proper environment and electrical and telecommunications
connections as specified by Lucent.
|
|
|
o
|
|
Provide access to the defective products to enable Lucent technicians or
contractors to perform maintenance, and provide adequate workspace, lighting, and power
as required to perform troubleshooting and repairs.
|
|
|
o
|
|
Provide temporary adequate communications facilities, workspace and
storage space for Lucent spare parts, if required by Lucent or their contractors.
|
|
|
o
|
|
Reinstallation of the repaired Sun product or EDU into the mounting rack
as required, software restoral and testing, and re-initialization of the component(s) for
use.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
33
|
|
|
|
|
STARS #
|
|
MWS05CM005A1 (RTS)
|
|
MWS05UD0003A1 (BRSS)
|
|
o
|
|
In addition, Customer is responsible for maintaining the product as follows:
|
|
|
o
|
|
Installing all software product updates within a reasonable time, not to
exceed sixty (60) days from the date of availability.
|
|
|
o
|
|
Following all Lucents and relevant third party software manufacturers
applicable installation, operation, administration, and maintenance instructions.
|
|
|
o
|
|
Installing most recent Class A changes.
|
|
|
o
|
|
Maintaining associated solution/platform components at current software release.
|
12.4 Exclusions
The following exclusions apply to MVM SUN service under this Attachment:
|
o
|
|
The following conditions are not covered under the MVM SUN service under
this Attachment if a Lucent Technologies technician or their representative is asked to:
|
|
|
Ø
|
|
Remain on Customers site after resolution of a problem.
|
|
|
|
Ø
|
|
Respond and provide support for equipment moves or changes.
|
|
|
|
Ø
|
|
Provision or install hardware upgrades or reprogram to add additional capabilities or
functionality to the products covered under the Attachment/Agreement.
|
|
o
|
|
Repair for damages or malfunctions caused by: (1) actions of
non-Lucent or non-Lucent contracted personnel or the attachment of products not supported
by Lucent; (2) failure to follow manufacturers installation, operation, or maintenance
instructions, including Customers failure to permit Lucent timely remote access to their
product; (3) failure of products not serviced by Lucent or Lucents contractors; (4)
abuse, misuse, or negligent acts of non-Lucent authorized personnel (5) repair to products
if Customer or Customer-authorized party modified the product in any manner.
|
|
|
o
|
|
Consumables, including but not limited to cables/cable assemblies,
cords, brackets, fan/fan assemblies, firmware, bezels, rack mounting and other hardware
kits, fuses, batteries, handles, filters, transformers, face plates, adapters, blank
panels, labels, other accessories, technical documentation or other media are not covered
MVM SUN service.
|
12.5 MVM SUN Definitions
MVM SUN Definitions:
FRU:
Field Replaceable Unit. FRUs are components that are identified by Sun Microsystems as
items that can be removed and replaced at Customers location. FRUs include, but are not limited
to, disk drives, power supplies, and cards contained within the
product chassis.
EDU:
External Disk Unit.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
34
Attachment E
RESPONSIBILITIES
MATRIX FOR SYSTEM ENGINEERING,
IMPLEMENTATION, AND OPTIMIZATION SERVICES
All definitions set forth in the Agreement shall apply to this Attachment E unless otherwise
expressly defined herein. Except as may otherwise be provided in the Agreement or in this
Attachment E, each of the Services identified as Sellers responsibilities in this Attachment are
offered on a separate billable basis. In the event of any conflicts between the terms set forth in
the body of the Agreement and the terms of this Attachment E, the terms set forth in the body of
the Agreement shall control.
1. Responsibilities Matrix Overview
This Attachment provides high-level descriptions of required Services (including, but not
limited to, engineering Services, operations and maintenance Services, and implementation
Services), and outlines the respective responsibilities concerning the supply, installation, and
commissioning of the Products, Licensed Materials and Services supplied under the Agreement.
Installation and commissioning of the Products, Licensed Materials and Services shall be performed
in accordance with Sellers reasonable installation and commissioning instructions.
1.1 Seller Responsibilities General
This section is provided for the convenience of the Parties and shall not be understood to
create any specific obligations upon Seller. Sellers responsibilities, when requested, shall
include, but shall not be limited to:
|
§
|
|
Conducting of analyses to determine the required materials, effort and services
necessary for installation and optimization of the network.
|
|
|
§
|
|
Installation of certain products, including radio and fixed network equipment (e.g.,
BTS radio equipment, power plant, associated hardware, 5ESS(FPS) and associated switch
equipment).
|
1.2 Customer Responsibilities General
Customers responsibilities shall include, but shall not be limited to:
|
§
|
|
Supplying Seller with all capacity requirements;
|
|
|
§
|
|
Site search and evaluation; and
|
|
|
§
|
|
Site acquisition and spectrum clearing.
|
The responsibilities in this Attachment are grouped into two (2) categories: base transceiver
stations (BTS) and switching systems. Both of these categories are further divided into services
and materials.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
2. Base Transceiver Station (BTS) Responsibilities
This section outlines the responsibilities for services and materials for the BTS
products. Radio network design is separated into two (2) series of activities: preliminary
radio network design and implementation radio network design.
2.1 BTS Services
Note:
The following responsibilities are based upon the assumption that Lucent performs
radio network design and installation, and Customer performs Site acquisition. In the event
that this assumption should change, the Parties will capture the revised assumption in the
associated purchase documents and the responsibilities matrix (below), will be updated
accordingly.
2.1.1 Radio Network Design
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1 .
|
|
Define coverage and capacity requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Provide coverage and capacity data to Seller.
|
|
***
|
|
***
|
2.1.2 Implementation Radio Network Design
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Prepare forecast and location of demand for service.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
2.
|
|
Define coverage and capacity requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
3.
|
|
Develop phase coverage objectives.
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
|
Develop coverage plan to meet phase coverage objectives (Only if
Lucent performs RF Engineering Design Services).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
5.
|
|
Prepare a detailed data sheet for each base station. Information
in the data sheet shall include, but is not limited to:
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a) Antenna description and configuration
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
b) Effective radiated power
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
c) Antenna radiation center above ground level
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
d) Sector/omni antenna, simplex/duplex, 60 /120 sector and
orientations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
e) Maximum transmission line loss acceptable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
f) Vertical beam width (optional)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
g) Down tilt angle (if used), mechanical/electrical
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
h) All relevant BTS parameters
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
i) Site name, Site code and numbers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
j) Location of base station
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
k) Scheduled in-service date.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.
|
|
Revise predicted coverage and performance as to reflect actual
Sites and design. Provide documentation (Only if Lucent
performs RF Engineering Design Services. If this is not the
case, this shall be a Customer responsibility).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
7.
|
|
Review data sheet against equipment capabilities
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
8.
|
|
Notify Seller of discrepancies, verify accuracy of calculations
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
|
|
associated with Seller-provided equipment.
|
|
|
|
|
|
|
|
|
|
|
|
9.
|
|
Clear microwave spectrum for Customers use.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Notify appropriate regulatory agency of frequency use,
obtain coordination approval.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11 .
|
|
Notify appropriate regulatory agency of adjacent
channel use, obtain coordination approval.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
File appropriate notices with FCC.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
File appropriate notices with FAA for antenna
structure lighting and marking.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Design and conduct coverage tests (not part of
acceptance testing)
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Provide interference guidelines.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Compare the coverage of the design, as built, with
requirements, (only if Lucent performs RF Optimization
Services).
|
|
***
|
|
***
1
|
2.1.3 Site Search
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Release search ring maps.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Survey area for possible Sites and prepare Site data files.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Evaluate and rank proposed Sites.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Drive test candidate Sites.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Evaluate drive test results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Approve or reject selected Site.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Identify and evaluate Site access and security.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Provide Seller with appropriate escort or written permission to proceed without escort
as needed at Customers Sites.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Negotiate lease with Site owners.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Approve and conclude lease contract.
|
|
***
|
|
***
|
2.1.4 Site Preparation
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1 .
|
|
Provide specific technical requirements for base station design to
Customer based on Radio Network Design.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Prepare Civil Engineering Design for Site construction and
provide copy of layout drawings to Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Use layout drawings to prepare Bill of Material.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Order material per approved Bill of Material
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Obtain all necessary permits from authorities including,
but not limited to zoning approvals and building permits.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Submit all required environmental impact statements.
|
|
***
|
|
***
|
|
|
|
1
|
|
Where both Customer and Seller are indicated in the matrix, both Parties
shall cooperate until a successful solution is achieved.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
7.
|
|
Complete Site data file.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Evaluate and select construction contractors.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Schedule construction work (including building
improvements, AC power, leased lines).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Supervise Site construction.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Furnish estimated Site Ready for Installation
(SRI) inspection date.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Supply Site ready for installation.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Conduct inspection of completed construction.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Participate in SRI inspection at Site.
|
|
***
|
|
***
|
2.1.5 BTS Equipment Shelters and Antenna Mounting
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1 .
|
|
Provide design recommendations for equipment shelters.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Plan and design outdoor equipment shelters.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Produce civil works drawings.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Plan and design non-standard support masts.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Provide mechanical details (antennas and cable mounting) for
structural review and permitting.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Produce non-standard support masts drawings and provide to
Customer.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Perform structural analysis of building.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Provide floor space (if indoor Site) or pad/plinth (if
outdoor Site).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Provide adequate HVAC (if indoor Site).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Provide adequate AC power supply.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Provide proper electrical grounding
at each Site
4
.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Review locations for special requirements, e.g. fireproof cables
in elevator shafts.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Deliver BTS equipment to Site.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Receive and inventory equipment at Site.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Install outdoor equipment shelters.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Specify and design custom brackets and other hardware needed
for the antenna and transmission lines.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
17.
|
|
Install custom brackets and other hardware for the antenna
and transmission lines
|
|
***
|
|
***
|
|
|
|
2
|
|
Grounding is to be completed in accordance with standard grounding
practices, as documented in the Modcell Installation Manual 401-703-300, or in accordance with other Seller approved alternatives.
|
|
3
|
|
All activities that require special hauling/hoisting and handling are billable to Customer if performed by Seller
(including rooftops).
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
18.
|
|
Specify and install standard
masts with any necessary structural
reinforcement.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
19.
|
|
Install non-standard masts and any
structural reinforcements, where necessary.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20.
|
|
Coordinate government inspections.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
21.
|
|
Clean up Site, remove temporary works
and staging , clean all duct work and
ventilation.
4
|
|
***
|
|
***
|
2.1.6 BTS Site Equipment
(NOTE: X
=
Seller performs installation; Y = Customer performs installation; X Y =
Responsibility is independent of which Party performs installation)
Seller shall be responsible for the factory testing, packing, delivery of equipment,
installation, testing and commissioning of the BTS equipment and antenna systems.
Seller shall commence implementation and optimization Services at each Site (provided that
Customer has received all the necessary permits, including, but not limited to, zoning
approval, building permits and regulatory approvals, has made the necessary modifications to
prepare the Site, and has made the Site available to Seller as described in this Attachment).
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Issue Purchase Order to Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Review and accept Purchase Order as provided in Agreement.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Provide BTS Site equipment Site Preparation Guidelines to Customer, including
Ancillary Equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Provide Site equipment documentation, including all documentation for
Ancillary Equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Procure tools and test equipment for acceptance testing.
1
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Provide any Seller proprietary connectors or Software that is needed for
Acceptance Testing.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Unpack BTS equipment at Site.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Obtain special installation permits (e.g. crane, street blocking).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Obtain any special manpower (e.g. flag-man to direct traffic around
crane).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Supply skilled manpower, equipment and tools for installation.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Install radio equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Install and test batteries.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Connect equipment to grounding systems.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Connect external alarms to BTS.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Terminate antenna feeders onto BTS equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Provide connection from BTS to telco connection point.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
17.
|
|
Perform (as a minimum) voltage standing wave ratio (VSWR) and/or time domain
reflectometer (TDR) test for all coaxial lines and antennas separately and together as
specified.
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
18.
|
|
Label each line with identifiers and weatherproof both ends.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
19.
|
|
Weather-proof all outdoor connections with material suggested by
manufacturer.
5
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20.
|
|
Load frequency and other parameters into equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
21.
|
|
Supply replacement spare parts during installation following
Acceptance and within Warranty Period per Agreement.
|
|
***
|
|
***
|
If Seller is notified by Customer that a Site is ready and finds upon arrival that the
Site is not in material compliance with the criteria indicated in the Site Readiness
Checklist, on the form generally used by Seller for such purpose, or other agreement made by
the Parties, (an Erroneous Dispatch) Customer shall pay
to Lucent an additional fee of *** for each such Erroneous Dispatch. If Lucent incurs extraordinary
costs due to an Erroneous Dispatch, Customer agrees to negotiate in good faith appropriate
compensation for such extraordinary costs.
2.2 Materials BTS
2.2.1 BTS Equipment Shelters and Antenna Mounting
(Note: a = Seller
performs
installation; b = Customer performs
installation)
(Note: C
= CUSTOMER
responsibility; S
=
SELLER responsibility)
|
|
|
|
|
|
|
|
|
|
|
|
|
Supply
|
|
Install
|
|
Test
|
1.
|
|
Tower / shelter foundation
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
2.
|
|
Tower or building mounting steelworks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
3.
|
|
Lightning protection
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
4.
|
|
External feeder routes
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
5.
|
|
Grounding system
2
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
6.
|
|
Hazard lighting and other associated items onto tower
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
7.
|
|
Fences around shelters
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
8.
|
|
Paint for antennas and outdoor equipment
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
9.
|
|
Main AC power
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
10.
|
|
Main AC power distribution panel
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
11.
|
|
Equipment room/shelter lighting
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
12.
|
|
Wall sockets for general use
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
13.
|
|
Air conditioning
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
14.
|
|
Temperature alarm
system
!
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
15.
|
|
Fire/smoke alarm system
5
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
16.
|
|
Cable entry ducts (feed through)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
17.
|
|
Intruder alarm system
5
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
18.
|
|
Fire extinguisher
|
|
***
|
|
***
|
|
***
|
|
|
|
5
|
|
Seller will punch down any alarms supplied by Seller and help test alarm to
switch.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Supply
|
|
Install
|
|
Test
|
19.
|
|
Suitable floor coating (anti-static)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
20.
|
|
Document shelves and other furniture
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
21.
|
|
Site inspection exception reports
|
|
***
|
|
***
|
|
***
|
(Note: a =
Seller performs installation; b = Customer performs installation)
|
|
|
|
|
|
|
|
|
|
|
|
|
Supply
|
|
Install
|
|
Test
|
1.
|
|
Batteries with rack (Lucent provided)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
2.
|
|
BTS equipment
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
3.
|
|
***
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
4.
|
|
Alarm distribution panel for external alarms
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
5.
|
|
Antenna, coaxial cables, and all associated hardware.
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
6.
|
|
Duct feed-through boots for waterproofing
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
7.
|
|
External alarm cabling from alarm panel to BTS (Lucent
supplies one cable only)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
8.
|
|
Alarm cabling from detectors to alarm panel
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
9.
|
|
Alarm cabling from DDF to network element (NE)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
10.
|
|
Cable from BTS to grounding
system
2
(Install only)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
11.
|
|
Grounding kits and clamps
2
(Install only)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
12.
|
|
Rectifier system
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
13.
|
|
DC distribution and (fuse cabinet
6
)
4
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
14.
|
|
Power cabling to BTS (from bays to cabinet only)
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
15.
|
|
Battery cabling and termination hardware
|
|
***
|
|
***
|
|
***
|
3. Switching Responsibilities
This section outlines the responsibilities for services and materials for the switching
systems.
3.1 Services Switching Systems
This section is separated into two (2) sets of activities: switching network element design
and implementation switching network element design.
The switching network element design shall include Customers switching requirements and
Sellers initial network design.
The implementation switching network element design shall include all subsequent Customer
modifications to Sellers switching network element design.
|
|
|
6
|
|
Fuse cabinet supplied by Customer if in a building.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
3.1.1 Switching Network Element Design (MSC//BTS/OMC/NMC)
7
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Define switching requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Provide switching requirement data to Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Prepare detailed, warranted infrastructure requirement lists and
provide to Customer.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Provide Customer with reports and information.
4
|
|
***
|
|
***
|
3.1.2 Implementation Switching Network Element Design (MSC/BTS/OMC/NMC)
(NOTE: X = Seller performs installation; Y = Customer performs installation;
XY = Responsibility is independent of which Party performs installation)
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Provide input from RF design.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Provide equipment Specifications, e.g., interfaces, capacity,
etc.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Provide infrastructure Specifications (leased lines).
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Approve infrastructure Specifications (leased lines).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Provide telco interconnect Specifications.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Approve telco interconnect Specifications.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Provide fixed network design Specification, e.g., GOS, MTBF, etc.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Conduct economic study of MSC/BTS/OMC configuration.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Design and size MSC/BTS/OMC configuration and provide copy to
Customer.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Review and approve MSC/ BTS/OMC design, including equipment and
interface compatibility.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Revise network design if required.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Produce civil works drawings for OMC and NMC
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Provide equipment and Software for OMC.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Install OMC equipment and Software.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Test OMC installation.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Approve OMC installation.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
17.
|
|
Provide equipment and Software for NMC.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
18.
|
|
Install NMC equipment and Software.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
19.
|
|
Test NMC installation.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20.
|
|
Approve NMC installation.
|
|
***
|
|
***
|
|
|
|
7
|
MSC: Mobile Switching Center; BTS: Base Transceiver Station; OMC:
Operations Maintenance Center; NMC: Network Maintenance Center
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
3.1.3 Site Search
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Search for and identify possible Sites.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Pre-survey selected locations.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Hold technical review at Sites with fixed network engineer, Site acquisition and
preparation specialists and Seller representative to identify all technical
requirements from all Parties to determine feasibility of Site.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Examine Site for suitability, noting ease of access to equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Make Site selection or perform Site search again.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Identify and evaluate Site access and security.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Negotiate terms and conditions of lease with Site owners.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Finalize lease contract.
|
|
***
|
|
***
|
3.1.4 Site Preparation
In the event Customer elects to contract with Lucent to provide engineering and
construction of the facility which will house the switch and access manager, the following
matrix will be restructured:
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Define technical system requirements for floor space, floor loading, heat
load.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Determine overhead or floor cabling.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Determine raised floor or not.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Select air conditioning system to be used.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Obtain requirements for equipment rooms, power, standard connectors,
levels, impedances etc. and provide copy to Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Design and furnish equipment room or space for telco line connections and
provide layout drawings to Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Provide layout design for equipment installation.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Produce civil works drawings.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Review and approve typical layout plan for supplier equipment.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Complete detailed installation designs for each MSC/OMC.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Obtain all necessary permissions from authorities.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Prepare request for proposal documents for construction bids.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Evaluate and select construction contractors.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Supervise Site construction.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Provide fire protection system with alarms.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Install security alarms.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
17.
|
|
Install external alarms.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
18.
|
|
Provide alarm panel.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
19.
|
|
Determine emergency power back-up requirements based on size, market
requirements, and reserve capacity.
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
20.
|
|
Provide backup power system
|
|
***
|
|
***
|
|
|
|
|
|
|
|
21.
|
|
Provide any particular design requirements for power plant to
Customer.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
22.
|
|
Perform all civil works preparation for power plant.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
23.
|
|
Provide leased lines to telco termination point (telco to
provide).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
24.
|
|
Provide main power.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
25.
|
|
Approve completed Site construction.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
26.
|
|
Inspect buildings for readiness and approve completed Sites.
|
|
***
|
|
***
|
3.1.5 Switching Hardware and Software
Seller shall be responsible for the factory testing, packing, delivery, unpacking,
installation, testing and commissioning of MSC and OMC hardware and software. Customer shall be
responsible for acceptance testing Customer wishes to perform.
Prior to delivery of any equipment, Customer must first issue a Purchase Order. Seller must then
review and accept the Purchase Order as provided in the Agreement.
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Specify MSC equipment per Site based on approved fixed network design,
including trunk and slot assignments.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Prepare plan for testing of network element integration and provide to
Customer for review.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Review test plan, agree to changes and approve test plans.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Perform integration tests.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Record results of tests for review.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Review test results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Connect fire, security, and external alarms to alarm panel.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Connect alarm panel to NE.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Provide schedule with building-ready dates.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Provide for temporary storage of incidental equipment.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
11.
|
|
Provide for warehouse storage.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
12.
|
|
Provide Customer with schedule of equipment delivery dates.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
13.
|
|
Establish start of work and completion dates.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
14.
|
|
Review, change or approve installation schedule and plans.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
15.
|
|
Deliver, inventory and unpack all MSC equipment to Sites
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
16.
|
|
Provide Site preparation guidelines for the MSC equipment. Guidelines shall
include, but shall not be limited to: telco and Tl Link requirements; DC, AC, and emergency power requirements; floor space requirements; HVAC requirements;
grounding and lightning protection specifications; alarm interface requirements.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
17.
|
|
Provide Site preparation guidelines for the MSC equipment (subject to
Customers approval). Guidelines shall include but shall not be limited to:
|
|
***
|
|
***
|
|
|
BTS-MSC link requirements; DC, AC,
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
|
|
|
|
|
|
|
|
|
and emergency power requirements; floor space
requirements; HVAC requirements; antenna and combiner
requirements; tower requirements; grounding and lightening
protection specifications; alarm interface requirements.
4
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
|
|
|
|
|
|
|
18 .
|
|
Install all MSC equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
19.
|
|
Provide Site preparation guidelines for the OMC equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
20.
|
|
Install all OMC hardware and Software.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
21 .
|
|
Arrange for hauling and hoisting (including special permits
for parking, street closures, etc.).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
22.
|
|
Furnish installation tools, test equipment and supplies.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
23.
|
|
Load test batteries.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
24.
|
|
Maintain clean room during installation.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
25.
|
|
Clean floor area & blow out air conditioning system.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
26.
|
|
Maintain security during
installation.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
27.
|
|
Provide access and leased line test point to telco (monitor
test points to telco).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
28.
|
|
Provide test procedures for routing of all access and leased
lines to Customer for review.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
29.
|
|
Review test procedures (change or approve).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
30.
|
|
Perform access and leased line tests and record results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
31 .
|
|
Request repair as necessary.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
32.
|
|
Escalate repair request as necessary to get results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
33 .
|
|
Perform tests and record results.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
34.
|
|
Participate in testing.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
35.
|
|
Review test results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
36.
|
|
Accept or reject test results.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
37.
|
|
Define non-Seller supplied administrative system requirements,
i.e., billing system, network management system.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
38.
|
|
Provide written status reports during installation.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
39.
|
|
Provide material list to Customer for the Site.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
40.
|
|
Provide manuals, drawings, and non-proprietary documentation
for all equipment to the satisfaction of Customer. Includes manual,
drawings, and non-proprietary for third party equipment used in all
network elements supplied by Seller.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
41.
|
|
Accept documentation as provided or request changes,
additions.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
42.
|
|
Prepare Punch List.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
43 .
|
|
Correct deficiencies in Punch List.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
44.
|
|
Accept equipment.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
45.
|
|
Turn up equipment for service.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
46.
|
|
Monitor performance.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
47.
|
|
Perform corrective action as necessary.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
48.
|
|
Develop and install non-Seller administrative system interfaces
and software to meet Customer requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
49.
|
|
Provide interface documentation with regard to Seller-provided
equipment.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
50.
|
|
Develop test plan for interface testing of administrative
systems.
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
51 .
|
|
Review and comment on interface testing of administrative
systems.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
52.
|
|
Perform interface tests according to test plan
(not part of Acceptance Tests).
|
|
***
|
|
***
|
|
|
|
|
|
|
|
53.
|
|
Supply replacement spare parts during
installation-following acceptance and within Warranty
Period per Agreement.
4
|
|
***
|
|
***
|
3.1.6 Leased Lines
|
|
|
|
|
|
|
|
|
|
|
Customer
|
|
Seller
|
1.
|
|
Identify traffic capacity of network elements.
4
|
|
***
|
|
***
|
|
|
|
|
|
|
|
2.
|
|
Identify end points for lease lines.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
3.
|
|
Identify diverse routing requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
4.
|
|
Provide dimensioning rules and interface requirements.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
5.
|
|
Develop schedule of required in-service date for each circuit.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
6.
|
|
Enter lease line orders to telco and conduct follow-up.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
7.
|
|
Notify Seller if schedules change due to telco delay.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
8.
|
|
Provide access and oversee telco installation of leased lines.
|
|
***
|
|
***
|
|
|
|
|
|
|
|
9.
|
|
Perform short-term (approximately 15 minutes) bit error rate and
other line testing. (Lucent recommendation would be that these test should
be taken for 8 hours or above at minimum)
|
|
***
|
|
***
|
|
|
|
|
|
|
|
10.
|
|
Review test results and determine problem resolution.
|
|
***
|
|
***
|
3.2 Materials Switching
(Note: a = Seller performs installation; b = Customer performs installation)
(Note: C =
CUSTOMER
responsibility; S = SELLER responsibility)
3.2.1 Switching Site Equipment (MSC/HLR/OMC/NMC)
|
|
|
|
|
|
|
|
|
|
|
|
|
Supply
|
|
Install
|
|
Test
|
1.
|
|
MSC/HLR/ hardware and software
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
2.
|
|
OMC and NMC hardware and software
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
3.
|
|
Standby generator and no break & transfer switch
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
4.
|
|
Main power, including power plant
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
5.
|
|
Lighting
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
6.
|
|
Wall sockets for general use
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
7.
|
|
Grounding system
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
8.
|
|
AC Distribution
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
9.
|
|
Cable trays and supporting steelworks or raised floor
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
10.
|
|
Alarm distribution panel for external alarms
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
11.
|
|
Cabling between NEs and MSC
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
12.
|
|
Cabling between MSC and Telco termination point
|
|
***
|
|
***
|
|
***
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
|
|
|
|
|
|
|
|
|
|
|
|
|
Supply
|
|
Install
|
|
Test
|
13.
|
|
Workstation and printer cabling to network elements
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
14.
|
|
Rectifiers, batteries, cabling
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
15.
|
|
Modem cabling from PDE racks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
16.
|
|
Modem
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
17.
|
|
External alarm cabling from MSC to alarm panel
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
18.
|
|
Alarm cabling from PDE racks
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
19.
|
|
Ground cabling
8
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
20.
|
|
Rectifier system
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
21.
|
|
DC distribution and fuse cabinet
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
22.
|
|
Power cabling to the switching equipment
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
23.
|
|
Batteries with rack
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
24.
|
|
Battery cabling and termination
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
25.
|
|
UPS system for the Switches and peripheral devices
|
|
***
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
26.
|
|
Battery load testing
|
|
***
|
|
***
|
|
***
|
|
|
|
8
|
|
Equipment supplied by Customer must conform to Lucent MSC grounding
practices, as documented in ED-5D022- 11.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
Attachment F
CHANGE MANAGEMENT PROCESS
The change
management process set forth in this
Attachment F (
Change Management Process
)
supplements the terms set forth in
Sections 1.7
and
1.8
of the Agreement and, together with the
terms set forth in such Sections, sets forth the only authorized mechanism to request and approve
changes to accepted Purchase Orders. The persons authorized to request and/or approve changes for
and on behalf of each party are identified in
Attachment 2
to this
Attachment F.
All work
identified and performed through the Change Management Process will be governed by the terms and
conditions of the Agreement.
For Customer- or Seller-initiated change requests (each, a
Change Request),
the following
process will be followed:
1.
|
|
CUSTOMER-INITIATED CHANGE REQUESTS
|
a)
|
|
To request a change, Customers authorized person will prepare and submit a Change Order
Request and Authorization form, a sample copy of which is attached hereto as
Attachment 1
(the
CORA),
to Sellers designated
individual, normally the Program Manager (the
PM).
Once
Customer completes the CORA and submits it to Seller, it shall constitute a Change Request.
In the event that a Change Request has been directed to someone other than the PM, the
recipient will facilitate linkage to the PM in a timely manner. The CORA form is the sole document
used for initiating a Change Request and recording changes to a Purchase Order.
|
|
b)
|
|
Upon receipt of a Change Request, the PM will provide Sellers contract administration
manager (the
CAM)
a copy of the Change Request. The PM will determine the impact of the change
(pricing, scheduling, etc.), if any, utilizing the appropriate Seller personnel (i.e.,
Sellers technical consultants, engineering, installation, etc.). Sellers personnel will provide the
appropriate feedback to the PM or return the completed Change Request for review and signature by the
PM. The PM will sign (on behalf of Seller) and forward the Change Request to Customer.
Sellers response to the Change Request (the
Change Response)
will be provided to Customer in a
timely manner, but not longer than *** Business Days following Sellers receipt of the
Change Request from Customer, unless otherwise mutually agreed to by both Parties. If
necessary, Customers authorized person and the PM will negotiate any open issues relative
to the Change Request. If Customer accepts and agrees to the Change Response, Customer will execute
the Change Response and return it to the PM. Such Change Response, after execution by
Customers authorized person, shall be deemed a
Change Order.
Electronic acceptance of a
Change Response will be binding on Customer notwithstanding the absence of a signature.
|
|
c)
|
|
The Change Order authorizes Seller to implement the changes described therein and to invoice
for such work. Execution of a Change Order by one of Customers authorized persons and the
PM means the individual signing has the authority to authorize the changes described
therein, including pricing changes, if any.
|
|
d)
|
|
Upon receipt of the Change Order, the PM will notify the appropriate Seller personnel to
proceed with the requirements set forth in the Change Order. Upon completion of its requirements,
Seller shall invoice the Customer.
|
|
e)
|
|
If the Parties cannot agree on a Change Response, the procedures outlined in
Section 1.7(b)
of the Agreement shall apply.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
2
|
|
SELLER-INITIATED CHANGE REQUESTS
|
|
a)
|
|
To request a change (which Seller shall have the right to do
only as provided in
Section
1.8(a)
of the Agreement), Sellers authorized person will prepare and submit a CORA form to Customer
for review and approval. Once Seller completes and submits the CORA to Customer, it shall
constitute a Change Request.
|
|
b)
|
|
Upon receipt of the Change Request, Customer will evaluate it and, if accepted, Customers
authorized person will execute the Change Request. Once Customer executes the Change
Request and submits it to Seller, it shall constitute a Change Order. Execution of a
Change Request by Customers authorized person means the individual signing has the authority to
authorize the changes described therein including pricing changes, if any. Customer will
accept or reject any Seller-initiated Change Request as soon as practical, but no later than *** Business Days from Customers receipt of the Change Request from Seller, unless otherwise
mutually agreed to by both Parties. Upon receipt of the Change Order, the PM will notify
the appropriate Seller personnel to proceed with the requirements set forth in the Change Order
and, upon completion, invoice Customer.
|
|
c)
|
|
If Customer rejects any Seller Change Request, a written explanation detailing the reasons
for the rejection will be provided by Customer to Seller within *** Business Days after
receipt of the Change Request by Customer. The PM may meet with Customer to resolve such rejection. If
the Parties still cannot agree on the Seller Change Request, the procedures outlined in
Section 1.8(b)
of the Agreement shall apply
|
|
3.
|
|
CHANGE ORDER TRACKING
|
The Seller CAM will be responsible for tracking all Change Requests throughout the entire
process from the point of origination through the invoicing and payment cycle.
Attachment 1 CHANGE ORDER REQUEST & AUTHORIZATION FORM
[Attached Hereto]
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
THIS CHANGE REQUEST IS:
o
Customer Initiated
o
Lucent Initiated
ATTACHMENT 1
CHANGE ORDER REQUEST & AUTHORIZATION FORM 1
Agreement No.
|
|
|
|
|
|
|
Change Request Tracking No:
|
|
|
|
Date of Request:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Requesters Name:
|
|
|
|
Telephone:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer:
|
|
|
|
Orig. Customer PO No:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
|
|
Customer Request Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lucent Order No:
|
|
|
|
Project/Office Name:
|
|
|
|
|
|
|
|
|
|
Type
of Change
:
|
|
|
|
|
o
Engineering Only
|
|
o
Engineering / Material
|
|
o
Material Only
|
o
Installation Only
|
|
o
Engineering / Material / Installation
|
|
o
Installation /Material
|
o
Engineering / Installation
|
|
o
Other:
|
|
|
Description of Work / Change:
|
|
|
|
|
Customer Required Material / Services Interval:
|
o
Standard Interval
|
|
o
Expedited Interval
|
|
o
Not Applicable
|
Customer Required Transportation Level :
|
o
Standard Shipment
|
|
o
Premium Shipment
|
|
o
Not Applicable
|
Schedule Impact:
|
|
|
|
|
|
|
|
|
|
|
|
Original Completion
Date:
|
|
Revised Completion
Date
:
|
|
|
|
|
|
|
|
|
|
Price:
|
|
Engineering
|
|
|
|
Bill To:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Installation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transportation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other*
|
|
|
|
Ship To:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*See Attached for Details
|
|
Customer hereby acknowledges that this change order request is either a change to the
original order or is an addition to the work to which the parties have already agreed. The
terms and conditions of the Agreement identified above will cover the work provided herein.
Customer understands and acknowledges that the price of this work is not covered under any
purchase order or included in the Agreement identified above. Customer agrees that this fully
executed change order request will serve as the authorization for work and for payment.
Customer certifies that he/she has the authority to authorize this work and the additional
cost.
o
the signature below indicates that lucent is hereby
authorized to proceed with the change
Authorization & Approval
|
|
|
|
|
|
|
Customer:
|
|
|
|
|
|
Lucent Technologies Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signed:
|
|
|
|
Signed:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name (Print):
|
|
|
|
Name (Print) :
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
Attachment 2 PERSONS AUTHORIZED TO REQUEST AND ACCEPT CHANGE REQUESTS
For Customer:
Sheila Teter
For Seller:
Lucent Program Manager for the local market
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
Attachment G
REPAIR AND EXCHANGE SERVICES
Capitalized terms used in this Attachment shall have the meanings ascribed to them in the
Agreement unless otherwise defined in this Attachment.
1.
MAINTENANCE DEFINITIONS
Coverage
Period
shall mean the times of day and the days of the week during which Repair &
Exchange Services (RES) will be provided, which is 12:00:01 AM Sunday through 11:59:59 PM
Saturday, including holidays.
2.
REPAIR & EXCHANGE SERVICES
RES involves Sellers repair or exchange of defective, Customer-owned, Seller-manufactured
and Seller-supplied non-Lucent manufactured hardware and Parts.
RES are
priced and sold on a per-system basis; such pricing is set forth in
Attachment
J
. All
Parts that comprise the covered system will carry the same Coverage Period and Response Time
levels.
The RES program only provides for the repair or exchange of Parts and does not include any
accompanying technical or installation services of any kind.
(A) RES DEFINITIONS
Part
, also referred to as a
Field
Replaceable Unit
or
FRU,
shall mean the Product
assembly or subassembly that can reasonably be removed from service and/or installed without the
use of uncommon tools and/or methods. Seller, acting reasonably, shall define the composition of
Parts to be exchanged or Repaired. Each type of Part will be assigned an identifier to distinguish
it for a particular Function or purpose. This Part identifier will be used in communications
between Customer and Seller when discussing Part(s) to be Repaired or exchanged. All replacement
Parts will be like-for-like, except where Seller reasonably determines that a replacement Part of a
different type is fully-compatible with the Form, Fit, Function and performance capabilities of the
defective Part being replaced. Each Part will also have an assigned serial number to uniquely
identify and distinguish it from other Parts of similar type. Customer must always return the Part
reported as suspected faulty and requested for exchange.
Part Request
or
PR
shall mean a record created by Seller that evidences Sellers authorization
for a Part to be repaired or exchanged according to the terms of this Attachment.
Repair
shall mean the diagnosis and replacement or reconfiguration of components necessary to
restore Part(s) to their original published operating specifications. Repair may include, in
Sellers reasonable discretion, the replacement of the entire Part with a like-for-like replacement
Part. Replacement Parts may be new, remanufactured, refurbished or used and certified as
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
meeting like-new operating standards. Any returned Part will become the property of Seller
(and the replacement Part shall become the property of Customer).
Response Time
shall mean the elapsed time during the Coverage Period from when Seller determines
that a Part is suspected faulty until the replacement Part is delivered to Customer or until an
attempt is made to deliver the replacement Part per Customers instructions.
(B) RES REQUIREMENTS
***
Except where Products are covered under RES at the commencement date of this Agreement, no less
than forty-five (45) days prior to the commencement of the Agreement, Customer will provide to
Seller on Sellers service start form the following Product detail for each Product to be
supported:
|
|
|
Seller assigned Product identification
|
|
|
|
|
Product description
|
|
|
|
|
Product serial number
|
|
|
|
|
Product address (equipment site)
|
|
|
|
|
Product configuration (Parts listing)
|
|
|
|
|
Seller assigned Part identification
|
|
|
|
|
Part serial number
|
Seller will initiate a Part Request only after: (1) a Seller technical support engineer determines
that a Part is suspected to be (or actually is) faulty; (2) Customer has successfully diagnosed
and isolated a faulty Part, OR (3) a Seller technical support engineer acknowledges Customers
analysis and identifies the suspected faulty Part identification number or code.
(C) RES EXCLUSIONS
The following items and conditions are excluded from RES:
|
|
|
Conditions in the Product or its Parts that existed prior to the term of the Agreement,
unless such condition existed during the term of a prior agreement between Customer and
Seller. However, such prior agreement must have been continuous, without any lapse of
coverage, up until this Agreement.
|
|
|
|
|
Defects or malfunctions caused solely by: (1) actions of non-Lucent personnel and/or
Subcontractors; (2) failure to follow the manufacturers published installation, operation,
or maintenance instructions; (3) failure of products not serviced by Seller; (4) abuse,
misuse, or negligent acts of non-Lucent personnel and/or Subcontractors.
|
|
|
|
|
Defects or malfunctions that include: (1) modifications made by non-Lucent personnel
and/or Subcontractors; or (2) defects or malfunctions caused by
the attachment of products
not supplied or recommended by Seller.
|
|
|
|
|
Passive and mounting hardware including, but not limited to, cables, cable assemblies,
cords, brackets, bezels, face plates, adapters, panels, or labels.
|
|
|
|
|
Consumables including, but not limited to, fuses, batteries, air filters, or
transformers.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
|
|
|
Documentation or software in all media forms.
|
In addition, Radio Frequency Units (RFU) are specifically excluded from coverage under RES.
3.
ADVANCED EXCHANGE
Seller will provide, upon receiving and accepting Customers PR, a replacement Part in
advanced exchange of receiving a reported-defective Part from
Customer
(
Advanced Exchange
).
Seller will arrange for the delivery of replacement Part(s) to Customers equipment site within
the Response Time period specified in Attachment D.
Customer may direct Seller to deliver Advanced Exchange material to a location other than the
equipment site, provided Customer identifies the alternate ship-to location before the PR is
accepted by Seller.
Upon receiving the replacement Part, Customer will return the reported defective Part to Seller
within ***. Seller will provide shipping instructions and pre-paid
shipping labels for this purpose. Customer will follow the shipping instructions for returning
defective Parts to Seller, and will use the return label that Seller or its authorized logistics
agent has provided. Customers failure to follow the return instructions and/or use the provided
return label will be treated by Seller as an unreturned Part.
Customer is responsible for including all mutually agreed documentation with returned Parts
including failure description, diagnostic test results, or some other indication suggesting that a
Part was suspected to be (or actually is) faulty or in need of replacement. Exchanged parts
returned to Seller without such accompanying documentation may be subject to additional charges
for diagnostic testing.
Customer is responsible for providing adequate packing material to protect against a reasonable
risk of damage that might occur during shipping by common carrier. If Customer fails to return the
reported defective Part to Seller within *** or returns a Part that was
damaged during shipping due to improper packing, Customer agrees to pay Seller the applicable
price under this Agreement for the Advanced Exchange item(s) and US *** in restocking
fees.
Prior to the commencement of any Advanced Exchange services, Customer agrees to provide a blanket
Purchase Order to Seller as payment authorization for unreturned defective Parts or other charges
as specified in this Attachment.
NEXT DAY ADVANCED EXCHANGE (AE-ND) (Response Times)
Seller will provide Advanced Exchange services the next calendar day following receipt of a PR
as determined by the time zone of the equipment location during the Coverage Period provided that
the PR is opened and accepted prior to 5:00 PM local time as determined by the time zone of the
equipment location. Parts Requests that are received and accepted after 5:00 PM will be considered
received on the following day. Parts that require custom configuration or software installation
will be shipped for delivery on *** following the PR.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
PRICING
Please see Attachment J.
DISCLAIMER
No obligation to provide the Service described in this Attachment arises unless a Purchase Order
for the Service has been placed by Customer and accepted by Seller. This Attachment will in no
event create or imply any obligations with respect to work activities that are not specified in
this Attachment. Any additional Services or assistance requested by Customer that are not specified
in this Attachment must be ordered separately and billed at the then-applicable rates under the
Agreement.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
Attachment H
PRODUCT STANDARD INTERVALS
Sellers Standard Intervals are predicated on Customers forecasting Product needs in
accordance with
Section 1.5
of the Agreement, entitled PLANNING INFORMATION.
Seller reserves the right to modify, amend, or change the Standard Interval objectives at any
time, provided Seller is doing so in the course of its normal business for all of its customers,
however, in no event will any such modified, amended, or changed Standard Interval apply to
Purchase Orders that have been issued and accepted in accordance with the terms and conditions of
this Agreement. For Products not identified below, Seller shall provide Customer with Standard
Intervals for such Product upon Customers request and this
Attachment H
shall be updated
accordingly.
The intervals in the following tables shall apply to Purchase Orders for new Product sales only.
Intervals for moves, de-installations, combinations or migrations of existing products shall be as
mutually agreed between the Parties. In addition, the following conditions shall apply:
|
|
The *** interval for Quote Preparation begins when Customer has provided
information necessary for Seller to prepare the Quote, or when the Parties have agreed to
configurations. Any change to such information or configuration would reset the Quote Preparation interval.
|
|
|
|
Products must be generally available and quotable
|
|
|
|
The Standard Intervals set forth below shall not apply to items that are not standard
orderable items (e.g., sub-components) or items that do not have assigned comcodes.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
DRAFT Subject to legal review and approval by the Parties
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TIME IN WEEKS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INSTALL
|
|
TOTAL
|
LUCENT
|
|
QUOTE
|
|
LUCENT
|
|
LUCENT
|
|
LUCENT
|
|
NORMAL
|
|
(INCLUDING
|
|
INTERVAL
|
PRODUCT
|
|
PREPARATION
|
|
PO
|
|
ENGINEERING
|
|
MANUFACTURING
|
|
SHIP
|
|
INTEGRATION)
|
|
WEEKS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
Draft #2
May 16, 2005
34vl
-2-
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
Attachment
I
CELL SITE SELF-INSTALL AGREEMENT
INFORMATION LICENSE TERMS
CONCERNING SELF-INSTALLATION
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement
unless otherwise defined in this Attachment. In case of any conflict between the provisions of
this Attachment and of the Agreement or any other Attachment, the provisions of this Attachment
shall take precedence, but only with respect to the INFORMATION and its use.
ARTICLE I
ITEMS TO BE FURNISHED
1.01
|
|
Seller shall furnish to Customer technical information, including Software, if any, relating to installation and testing of Sellers Products as set
forth in the Schedule to this Attachment
(
IN-INFORMATION
).
With the delivery of the INFORMATION, Customer shall also be furnished
a list, which identifies the INFORMATION delivered. Seller and Customer shall promptly notify each other of any inaccuracies in the list. All
information specified on said list shall be
deemed to be part of the INFORMATION with
the following qualification: if, within thirty (30)
days after receipt of the list, Customer shall give
Seller written notice specifying particular
INFORMATION identified therein which was not
actually received, Seller promptly shall deliver
such INFORMATION to Customer, but such
specified information shall be deemed excluded
from the list until such information is actually
received by Customer.
|
ARTICLE II
GRANT OF RIGHTS TO USE INFORMATION
2.01
|
|
Seller grants to Customer and its Affiliates a
personal temporary nontransferable (except as
provided in Section 1.27 of the Agreement) and
nonexclusive right to use the INFORMATION
solely to install and test wireless base stations
listed in the Schedule for Customer during the
Term of the Agreement, including Renewal Terms, and during the Transition Period, provided that Seller is the breaching party. With respect to any Software that is part of the INFORMATION, the license herein granted is limited to use on a Designated Processor or, temporarily on any comparable replacement, if the 3.04
Designated Processor becomes inoperative, until
the Designated Processor is restored to operational status. This Attachment does not give
Customer the right to furnish or sublicense the INFORMATION to third parties or to use the INFORMATION for any purpose or any third parties other
than as specified in this Attachment. Customer may not disclose the INFORMATION to its consultants
or contractors. For purposes hereof, Affiliate of Customer shall be as defined in the Agreement.
|
|
2.02
|
|
Customer agrees that it will not, without the prior written consent of Seller, transmit, directly
or indirectly, the INFORMATION, or any portion thereof, to any country outside of the United
States. Customer agrees that its obligation under this
Section 2.02
shall survive and continue
after any termination of Customers rights under this Attachment and after expiration of this
Attachment. In the event that use in another country is authorized by Seller, Customer shall be
responsible for compliance with all U.S. export rules and regulations applicable to any
transmission, direct or indirect, of the INFORMATION to such country.
|
ARTICLE III
FEES AND PAYMENT
3.01
|
|
For the rights in INFORMATION granted under this Attachment by Seller to Customer, Customer
shall pay to Seller the fees and/or other charges set forth in the Schedule. Such fees and/or other
charges are not inclusive of applicable transportation charges and taxes.
|
|
3.02
|
|
Customer shall pay invoiced amounts as set forth in Section 1.10 of the Agreement.
|
|
3.03
|
|
The payment of taxes shall be as set forth in Section 1.16 of the Agreement.
|
|
3.04
|
|
Unless otherwise expressly agreed in writing by Seller, expenses for any transportation and
insurance of all INFORMATION arranged and initially paid for by Seller shall be billed to
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-1-
Customer as a separate item and shall be paid by Customer.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.01
|
|
The terms of the Agreement, including this Attachment, shall prevail in the event of any conflicting terms or legends which may appear on
the INFORMATION furnished under this Attachment.
|
|
4.02
|
|
Except as Seller may otherwise agree in writing,
neither the execution of the Agreement nor anything in it or in the INFORMATION shall be
construed as an obligation upon Seller to furnish
any person, including Customer, any assistance
of any kind whatsoever, or any information other
than the INFORMATION, or to revise, supplement or elaborate upon the INFORMATION. If
Seller makes available training and/or other assistance with respect to use of the INFORMATION , unless otherwise agreed in writing, such
Services shall be provided according to the terms
and conditions of the Agreement. Customer shall
furnish to Seller the CLLI code and the commonly referred to name of the MSC (in case of
wireless) or the central office that the equipment
is connected to or in when requesting assistance.
|
|
4.03
|
|
Customer acknowledges that Seller has not attempted to ascertain Customers technical ability
to properly use the INFORMATION.
|
|
4.04
|
|
Seller represents and warrants to Customer that
the INFORMATION to be furnished under this
Attachment will be true and accurate, but Seller
shall not be liable for errors or omissions therein.
EXCEPT AS PROVIDED IN THIS ATTACHMENT AND THE AGREEMENT, SELLER
MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSLY OR IMPLIEDLY,
REGARDING THE INFORMATION AND, BY
THE WAY OF EXAMPLE BUT NOT LIMITATION, SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE.
|
|
|
|
Customer agrees to indemnify Seller and hold Seller harmless against any claim by Customer,
their employees, and any third party on account of, or arising from, the use by Customer of
the INFORMATION or any portion thereof. Such indemnification shall include reimbursement of
legal fees incurred by Seller relative to any such claim.
|
|
4.05
|
|
Customer agrees:
|
|
(i)
|
|
That Customer will not use the INFORMATION except as provided in the Agreement, including this Attachment:
|
|
|
(ii)
|
|
That the INFORMATION is Licensed Material under the Agreement, and Customer
shall keep the INFORMATION confidential and abide by the provisions applicable to
Licensed Materials under Article III of the Agreement, except for portions of the
INFORMATION, if any, (a) which were previously known to Customer free of any
obligation to keep confidential, or (b) which Seller agrees in writing have become
generally known to the public, provided that such public knowledge was not the result
of any acts attributable to Customer;
|
|
|
(iii)
|
|
That Customer will not, without Sellers express written permission,
represent, directly or indirectly, that any Product installed or tested in whole or in
part with the use of any of the INFORMATION is installed or tested by Seller or any of
its Affiliates;
|
|
|
(iv)
|
|
That Customer will not, without, Sellers express written permission, make or
have made, or permit to be made, any copies of any of the INFORMATION;
|
|
|
(v)
|
|
That Customer will not modify, decompile, or disassemble software furnished as
object code to generate corresponding source code;
|
|
|
(vi)
|
|
That, as between Seller and Customer, all INFORMATION furnished under this
Attachment shall be deemed the property of Seller, and that upon termination of all
rights granted to Customer under this agreement pursuant to Article IV hereof, Customer
shall immediately cease all use of the INFORMATION, shall immediately render unusable
all portions of the INFORMATION which may have been placed in any storage apparatus and
shall upon request deliver to Seller all documents containing any of the INFORMATION
furnished under this agreement then under its control;
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-2-
|
(vii)
|
|
To restrict disclosure of the INFORMATION solely to those of its employees with
a need to know to exercise the specific license rights granted above and not disclose the
INFORMATION or any part thereof to any other party;
|
|
|
(viii)
|
|
To advise those employees of their obligations with respect to the INFORMATION;
|
|
|
(ix)
|
|
That when the INFORMATION is no longer needed by Customer for the installation and testing
of the Products, Customer shall return all copies of the INFORMATION to Seller or insure that
all copies of the INFORMATION are destroyed;
|
|
|
|
|
That the obligations of Customer under this Article IV shall survive and continue after
expiration or termination of this agreement and after any termination of rights under this
agreement.
|
To give Seller, upon at least *** notice, access during usual business hours to
the premises of Customer where a cell site is installed or tested by Customer in order that Seller
may inspect and verify compliance by Customer with its obligations under this Attachment and the
Agreement.
4.06
|
|
Nothing contained in this Attachment shall be
construed as conferring by implication, estoppel
or otherwise any license or right under any patent, whether or not the exercise of any right
granted in this Attachment necessarily employs
an invention of any existing or later issued patent.
|
|
4.07
|
|
Customer shall not assign any right or interest
under this agreement, or delegate any work or
other obligation to be performed or owned by
Customer under this agreement. Any attempted
assignment or delegation in contravention of the
above provision shall be void and ineffective.
|
|
4.08
|
|
Neither party shall use any identification of, or
reference to, any code, drawing, specification,
trade name, trademark, trade device, insignia,
service mark, symbol, or any abbreviation, construction, or simulation thereof, of the other
party in any advertising or promotional efforts
relating to the INFORMATION provided under
this Attachment without such other partys prior
written approval.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-3-
Schedule
***
|
|
|
|
|
Product
|
|
Description
|
|
License Fees
|
|
|
|
|
|
|
|
***
|
|
|
***
|
|
|
|
|
Product
|
|
Description
|
|
License Fees
|
|
|
|
|
|
|
|
***
|
|
|
***
|
|
|
|
|
Product
|
|
Description
|
|
License Fees
|
|
|
|
|
|
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-4-
DRAFT Subject to legal review and approval by the Parties
Schedule
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-5-
DRAFT Subject to legal review and approval by the Parties
Schedule
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
-6-
Attachment J
SERVICES
1.1
Scope.
This Attachment contains additional terms and
conditions
, which together with the
terms and conditions of the Agreement, are applicable with respect to orders for the services
identified herein
(
Services
).
The Services to be provided shall be as described in, and may be
ordered only after Seller has provided, a Statement of Work
(
SOW
).
The SOW will either be
signed by the Parties or subject to acceptance by Seller following receipt of Customers Purchase
Order. Each SOW will be governed by this Attachment. To the extent of any inconsistency
between a specific term of this Agreement and a specific term in an SOW, the specific term of
the Agreement shall govern.
1.2 Responsibilities of the Parties.
Responsibilities of Seller, Customer and any third parties
for engineering, Site preparation, installation and optimization Services and for all other
Services
shall be set forth in the applicable SOW. Furthermore, Seller shall have no responsibility or
liability with respect to Services performed by third parties retained by Customer. Customer
shall provide Seller with such information and reasonable assistance as is timely requested by
Seller in order to satisfy its obligations.
1.3 Term of Services.
The term for completion of Services shall be set forth in the applicable
SOW. In the event that any SOW obligations extend beyond the expiration date of the
Agreement, the terms of the Agreement, this Attachment and the applicable SOW shall continue
to apply until all such obligations have been satisfied.
1.4 Warranty.
The warranty(s) for Services shall be those set forth in Section 4.7 of the
Agreement, entitled SERVICES WARRANTIES.
1.5 Prices and Fees.
The prices and fees for Services performed by Seller are as set forth in the
applicable SOW, but shall be based on the rates set forth in this Attachment and/or in
Attachment A, except for Section 1.7.2, which is for informational purposes only. Customer will
reimburse Seller for actual out-of-pocket expenses in accordance with Sellers travel and expense
policy, but in no event shall Customer reimburse Seller for
entertainment expenses. Expense
invoices will include a summary of expenses by major category and expenses will be invoiced on
a monthly basis.
1.7 Pricing.
1.7.1 RTS Pricing and Service Level
|
§
|
|
RTS pricing ***, subject to the terms and conditions set
forth in
Attachment D
|
|
|
§
|
|
In addition to the above, Customer may elect RTS ***, subject to the terms and conditions set forth in Attachment D.
|
|
|
§
|
|
Customer has chosen Premium Service *** as further described
in
Attachment D
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
1.7.2 Engineering, Installation and Integration Pricing
The following pricing model is for informational purposes only. Actual pricing for such
Services shall be set forth in a mutually agreed SOW(s).
SAMPLE MODEL 4SM (Switch Module) Configuration New Start
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Professional
|
|
|
Product
|
|
Engineering
|
|
Installation
|
|
Integration
|
|
Services
|
|
Total
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
***
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
***
|
|
|
***
|
|
|
Total
|
|
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
1.7.3 Pricing for Growth Elements Services
The following pricing model for Growth Elements is the contract pricing for the
specific configuration described below. Any deviation from this model will require
revised pricing to be set forth in a mutually agreed upon SOW(s).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
|
|
Engineering
|
|
|
Installation
|
|
|
Integration/pm
|
|
|
Total
|
|
|
|
Pricing is as engineered, please see the sample pricing provided on the previous page for reference numbers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
Service pricing may not apply should Customer chose to self-install. In such case, Product
would be quoted to Customer as furnish only.
|
|
2
|
Prices for the installation and integration of additional pair(s) is based on the
assumption that the work is being performed in the same trip as the
initial pair
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
1.7.4 ModCell Installation Pricing
Modcell Installation Pricing
***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
1.7.5 RES Pricing
Pricing for RES Next Day Advanced Exchange as described in
Attachment G is:
***
***
***
Coverage may be required for third-party product (i.e., Sun) as described in Attachment D.
All Riverstone, Juniper, and Cisco coverage to be quoted as Customers future network design may require.
1.7.6 Pricing for Extended Product Support
Pursuant to Section 2.6 of the Agreement, Customer may elect to extend the period for which
Seller provides repair services and repair parts ***.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
Attachment K
CO-MARKETING
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement unless
otherwise defined in this Attachment.
This Attachment provides for application of Sellers co-marketing program
(
Program
)
to assist
customers of Seller in the promotion of their services in conjunction with Seller and Sellers
products in accordance with the terms of this Attachment and the Program Documentation
(
Program
Documentation
is defined as the Co-Marketing Program Guidelines, Co-Marketing Program Brand &
Logo Usage Guidelines, and other documentation regarding the Program as that documentation may
exist now or in the future); however, in the event of any conflict between the terms of the
Agreement (including this
Attachment K
) and the terms of the Program Documentation, the terms of
the Agreement (including this
Attachment K
) shall control. Customer shall not be liable or
responsible for, or bound by, any changes in the Program Documentation unless it is provided to
Customer in writing.
Program Credits:
Sellers co-operative marketing credits
(
Co-op Credits
)
are calculated and achieved based on
Customers total paid invoices for qualified Products and Software. Qualified Products and
Software include PCS CDMA Products only.
Co-op Credits will accrue as set forth in Attachments A or C, as applicable. Co-op Credits are
available for use by Customer upon being credited to Customers Program records and shall expire if
not used prior to the termination or expiration of this Agreement; provided, however, that at a
minimum Customer shall have *** in which to use such Co-op Credits. Co-op Credits may be
utilized, as explained below, only after Customers completion of qualified Program activities,
which must be submitted to and approved by Seller as detailed in the Program Documentation.
Credit Utilization:
On a periodic basis, Customer will receive credit memos
(
Credit Memos
)
from Lucent detailing the
value of earned Co-op Credits that will be usable only in connection with Customers future
purchase/license of Sellers Products and Software after Customer has submitted the appropriate
documentation to Seller and Seller has verified each qualified Program activity as detailed within
the Program Documentation. Credit Memos may not be deducted from Customers current invoices; nor
may they be used to bring a delinquent account current. Seller shall send the Credit Memos to:
Mr. Braxton Carter
Chief Financial Officer
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, TX 75231
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
In no event shall Customer have any right or entitlement to the payment of any monies with respect
to the Co-op Credits or Credit Memos. All Co-op Credits and Credit Memos are contingent on and
subject to Customers compliance with all of the terms and conditions set forth in this
Attachment
K
and in the Program Documentation. If use of Co-op Credits meets the aforementioned terms and
conditions in full, Seller will pay up to *** of the cost of a
Customer-proposed marketing program. No Co-op Credits will accrue, and no Credit Memos may be used,
if a Customer Event of Default has occurred and is continuing (unless and until such time as the
Event of Default has been cured by Customer) or if the Agreement has expired or was terminated
prior to the accrual and use of such Co-op Credits and/or use of such Credit Memos. Seller also
reserves the right, at its reasonable discretion and until mutually agreeable resolution, to
disallow Customers use of Co-op Credits based on the aggregate balance of past due Seller invoices
previously issued to Customer.
Notices:
All notices under this Attachment shall be in writing and shall be given by confirmed facsimile,
by nationally recognized overnight courier or by certified or registered mail, addressed to the
addresses set forth immediately below or to such other address as either Party may designate by
notice pursuant hereto. Such notices shall be deemed to have been given: (a) upon transmission if
sent via confirmed facsimile; (b) one (1) Business Day after deposit with a nationally recognized
overnight courier; or (c) three (3) Business Days after deposit in the United States certified or
registered mail.
|
|
|
To Lucent:
|
|
To MetroPCS:
|
|
|
|
Mark Gardner
|
|
Diane McKenna
|
Regional Sales Director
|
|
Director of Advertising
|
Lucent Technologies Inc.
|
|
MetroPCS Wireless, Inc.
|
TX0035
|
|
8144 Walnut Hill Lane, Suite 800
|
2400 Dallas Parkway
|
|
Dallas, TX 75231
|
Plano, TX 75093-4370
|
|
***
|
***
|
|
***
|
***
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
Lucent Co-Marketing Program
Co-Operative Marketing
Program Guidelines
Purpose
Seller created this Program to assist Customer in the promotion of its services to its
customers in conjunction with Seller and Sellers products. This Program consists of Co-op Credit
records, as well as marketing expertise, assistance and/or consultation. Sellers goal is to help
Customer increase sales to its customers of products and services derived from its network,
through creative and timely use of Seller-sponsored marketing resources.
How the Program Works
Customer will be contacted by the Seller to discuss and provide contact information for both
Seller and Customer. The Program record will then be established and Customer will be notified of
record activation based on the contact information provided to Seller. The Program record is a
password-protected extranet site and available for Customer to view at any time. The site contains
Program financial data, and guidelines (this guide or as amended and updated from time to time).
In order to utilize Co-op Credits, Customer must abide by terms and conditions set forth in this
Attachment and the Program Documentation.
Required Forms
The Program Guidelines include samples of each of the forms Customer must complete as required
by Seller to remain an active participant in the Program.
Credit Utilization Steps
1.
|
|
Plan the Marketing Activity: Customer and a Seller customer team representative will
participate in regular planning sessions to develop a plan for the utilization of Co-op Credits. Jointly,
they will determine appropriate programs and campaigns supporting the objectives of the Program and
complete a Planning Form to document each session. Seller reserves the right to limit the
level of Co-Op support for any promotion. Customer must detail the activitys objective, estimated costs
and the Seller product or solutions to promote. Seller will review and approve, modify or deny the
activity.
|
|
|
|
Please note that pre-approvals of marketing activities do not guarantee Credit use, as final
Credit use approval will be based on submission of required supporting documentation (see Step 3
below), and on Customers Program record balance and payment history on the date of submission
of Request for Credit. For activities that require usage of the Program Logo, Customer should
refer to the section of this document entitled Co-Marketing Logo Usage for further details.
Appropriate uses of Co-op Credits are included within this document.
|
|
2.
|
|
Customer must execute the pre-approved marketing activity and remember to document it
according to the requirements. Customer must pay its promotional/advertising vendors directly, as Seller
will not make payments to Customers vendors.
|
|
3.
|
|
Submit the Request for Credit Form and the required supporting documentation: After the
promotion takes place, Customer must complete a co-marketing request for credit form within sixty (60)
days
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
|
|
after the activity has taken place or the pre-approval will automatically expire. For
convenience, Customer may include multiple promotions on a single Request for Credit Form,
provided they have already been approved through the pre-approval process outlined above.
Customer should attach copies of vendor or in-house invoices and other required supporting
documentation as required and as specified below, attach proof of performance, including
samples of the promotional piece, send completed request form with all supporting documentation
to the address listed on the Request for Credit Form for further processing.
|
|
|
|
Note: If production is done in-house, Customer must include a letter on company letterhead
stating the cost breakdown, description and signature from Sellers representative. For future
in-house productions of the same nature, please include a copy of the signed letter.
|
|
4.
|
|
Credit reimbursement from Seller: Seller will make the credit reimbursement available to
Customer within 30-45 days of Customers request based on the total amount of credits available to
Customer at the time of processing. If a Request for Credit Form submitted has a valid pre-approval number
and the required supporting documentation, but the Customer does not have sufficient Co-op Credits
at the time to cover the full amount requested, Seller will adjust records up to the available
balance and automatically issue a second credit reimbursement once the remaining Co-op Credits are achieved.
There is no need for the Customer to submit a second request for the remaining balance due.
|
|
5.
|
|
Marketing Results: Seller will send the Program Results Form to Customers contact via
email within sixty (60) days after the pre-approval activity end date to notify Customer that program results
are due. Completion of this form provides both Customer and Seller with ongoing access to marketing
effectiveness, cost effectiveness, and on-going planning efforts.
|
Co-Marketing Logo Usage
Guidelines for Program brand and logo usage are set forth within this document and in the
document entitled Co-Marketing Program Brand and Logo Usage Guidelines (Program Brand and Logo
Guidelines).
Customer must abide by Program Brand and Logo Guidelines. In addition, Seller has the
right-of-review/right-of-refusal for all promotional materials identified under the Program.
Seller also has the right in its sole discretion to modify or replace the Program Brand and Logo
Guidelines at any time.
All marketing communications (including, but not limited to print and broadcast advertising and
direct mail) that incorporate the Seller Program logo and/or Seller brand and trademarks shall be
submitted no less than five (5) Business Days in advance to Sellers Brand Group (current
representatives listed below):
|
|
|
Mark Alan Miller
|
|
Bob Cort
|
Lucent Technologies
|
|
Lucent Technologies
|
600-700 Mountain Avenue
|
|
600-700 Mountain Avenue
|
3B-443
|
|
3A-405
|
Murray Hill, New Jersey 07974
|
|
Murray Hill, New Jersey 07974
|
***
|
|
***
|
***
|
|
***
|
In addition, the placement and programming context in which the Seller Program logo and/or
Seller brand and trademarks appear must be in good taste and represent the policies and
philosophies of Seller, as determined by Seller in its sole discretion. Any misuse of the Seller
Program logo and/or Seller brand and trademarks will result in immediate suspension from the
Program.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
Before Customer wishes to utilize the Program Logo, Seller brand, and/or product trademarks,
Customer must submit to Seller a creative approval form with a copy of the final creative pieces
for approval prior to production. Customer expressly agrees not to use such Indicia unless and
until Seller grants such approval. Customer acknowledges it has no ownership or other interest in
the Indicia and shall make no claim to such indicia.
In the event Customers use of indicia is withdrawn as provided above or its potential to achieve
Co-op Credits is otherwise terminated as provided under the Program Documentation, Customer shall
immediately cease use of indicia and return to Seller or, at Sellers request, destroy all
promotional materials that may contain Seller indicia within thirty (30) days. Customer
acknowledges that the Indicia constitute a valuable property right of Seller and that use of such
without Sellers permission or in violation of the Program Documentation may cause irreparable
harm to Seller and that Seller shall be entitled to injunctive relief to cease use of such indicia
in such circumstances.
Customer acknowledges that Seller is the owner of the Program logo and all goodwill attached
thereto. This Attachment does not give Customer any interest in the Program logo except the right
to use the logo in accordance with the terms of this Attachment and the Agreement. Customer agrees
not to attempt to register the Program logo nor to adopt or register anywhere in the world marks
that are the same as or confusingly similar to the Program logo.
Customer recognizes Sellers exclusive and discretionary right to initiate and maintain any legal
or administrative proceedings against third parties relative to the protection and defense of the
Program logo including the settlement of any dispute with third parties relating to the logo.
Customer agrees to cooperate fully with Seller in the protection, maintenance and defense of the
Program logo, if sought, and waives any claim it may have against Seller as a result of its
exercise of or failure to exercise its exclusive and discretionary right hereunder.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
ACTIVITIES ELIGIBLE FOR CO-OP CREDIT MEMOS
AND REQUIRED SUPPORTING DOCUMENTATION
|
|
|
|
|
|
|
Qualified
Activity
|
|
Expenses Covered
|
|
Required Documentation and Proof
of Performance
|
|
Expenses
NOT Covered
|
|
|
|
|
|
|
|
Market
Reserch
|
|
***
***
|
|
All supporting paid invoices
Copy of final report
|
|
***
|
|
|
***
|
|
Analysis of final results
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
Lead
Generation
Programs
|
|
***
***
***
***
|
|
All supporting paid invoices
Copy of scripts
Copy of report/results from the lead generation
|
|
***
***
|
|
|
|
|
|
|
|
Sales Tools &
End-User
Models
|
|
***
***
***
|
|
All supporting paid invoices
Original sample of piece
Analysis of sales results
|
|
***
|
|
|
|
|
|
|
|
Direct Mail
|
|
***
***
***
|
|
Sample of piece
Copy of paid invoices
Copy of postage receipt
Copy of results report of direct mail piece
|
|
***
|
|
|
|
|
|
|
|
Print
Advertising
(including
newspaper)
|
|
***
***
***
|
|
Original, actual-sized tear sheet or photocopy
showing publication name, date and location
Copy of publisher invoice
Copy of paid layout/design,
photography invoices
Analysis of marketing results
|
|
***
|
|
|
|
|
|
|
|
Indoor,
Outdoor and
Vehicle Signage
|
|
***
***
|
|
Copy of paid invoice indicating where
advertising was posted
Photo of ad
Copy of paid invoice for layout/design
Analysis of promotional results
|
|
***
|
|
|
|
|
|
|
|
Radio
and TV
|
|
***
***
|
|
Copy of paid invoice showing length of
commercial, dates and times of spots,
where aired, cost per spot, and total
cost
Station affidavit and a copy of the
|
|
***
|
|
|
|
|
|
|
|
PROPRIETARY AND
CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
|
6
|
|
|
|
|
|
|
|
|
|
|
video/audio tape
Copy of paid invoice for production
work
Analysis of promotional results
|
|
|
|
|
|
|
|
|
|
Service
Provider
Created Sales
Literature
|
|
***
***
|
|
Original sample of piece
Copy of paid invoices
Sales/usage results
Success criteria and analysis of results
|
|
***
|
|
|
|
|
|
|
|
Trade Shows
and Seminars
|
|
***
***
***
***
***
|
|
Photo of display
All supporting paid invoices
Dates of participation
Analysis of promotional results
|
|
***
***
|
|
|
|
|
|
|
|
In-House
Incentive
Programs
|
|
***
***
|
|
All supporting paid invoices
Copy of promotional piece
Copy of incentive plan
Sales results
|
|
***
|
|
|
|
|
|
|
|
Point of
Purchase
Materials
|
|
***
***
|
|
All supporting paid invoices
Copy of supporting materials
Analysis of promotional results
|
|
***
|
|
|
|
|
|
|
|
Information
about
Your Services
on Your Web Site
|
|
***
***
|
|
All supporting paid invoices
Hard copy of how it appears on your site
Must appear on web site for
consecutive months
Sales/usage
results
|
|
***
***
***
|
|
|
|
|
|
|
|
Other
Approved Promotional
Activity
|
|
***
|
|
All supporting paid invoices
Copy of all materials
Promotional results
|
|
***
***
|
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
|
|
|
|
|
|
|
Co-Marketing Program
|
|
|
|
|
Co-Operative Marketing
|
|
|
Request for Credit Form
Company
Information
Company Name
Business Address
Lucent Contract Number
|
|
|
Lucent Demand Creation
|
Contact
|
|
|
Date of Request
Program Quarter:
Type of
Promotions
|
|
|
o
|
|
Market Research Lead Generation Programs
|
o
|
|
Print Advertising Point of Purchase Materials
|
o
|
|
Info. about Your Services on your Web Site
|
o
|
|
Co-branding
|
o
|
|
Direct Mail
|
o
|
|
Indoor, Outdoor, and Vehicle Signage
|
|
|
|
o
|
|
Radio and TV
|
o
|
|
Trade Shows and Seminars Service Provider
Created Sales Literature In-House Incentive
Program
|
Request Details
Please identify and itemize expenses associated with this project below. (Attach additional
expenses as required)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pre-Approval
|
|
|
Vendor
|
|
|
Date of
|
|
|
Expense
|
|
|
Invoiced
|
|
|
Amount
|
|
|
|
Activity Number Invoice No.
|
|
|
Promotion
|
|
|
Description
|
|
|
Amount
|
|
|
Requested
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS ANDLUCENT TECHNOLOGIES INC.
8
|
|
Attach required documentation with your request (see Program Guidelines).
|
|
|
Please include copies of all relevant Creative Approval and
Planning Forms with your request. Keep a copy for your records.
|
|
|
Pre-approvals of marketing activities do not guarantee credit
memos, as final approval will be based on submission of required
supporting documentation, and on Customers Program records balance on
the date of submission of Request for Credit.
|
|
|
Requests must be received within 90 days of the activity date.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS ANDLUCENT TECHNOLOGIES INC.
9
|
|
|
|
|
|
|
Co-Marketing Program
|
|
|
|
|
Co-Operative Marketing
|
|
|
Planning and Creative Approval Form
Company
Information
Company Name
Business Address
Lucent Contract Number
|
|
|
Lucent Demand Creation
|
Contact
|
|
|
Date of Request
Program Quarter:
Activity
Description
Advertising Media Type (check all that apply)
|
|
|
o
|
|
Market Research Lead Generation Programs
|
o
|
|
Print Advertising
|
o
|
|
Point of Purchase Materials Info. about Your
Services on your Web Site
|
o
|
|
Co-branding
|
o
|
|
Direct Mail
|
|
|
|
o
|
|
Indoor, Outdoor, and Vehicle Signage
|
o
|
|
Radio and TV
|
o
|
|
Trade Shows and Seminars Service Provider
Created Sales Literature In-House Incentive
Program
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Activity Description
|
|
|
|
|
|
|
Lucent
|
|
|
Amount
|
|
|
|
Start Date
|
|
|
End Date
|
|
|
(include media name
|
|
|
Objective
|
|
|
Contribution
|
|
|
Requested
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Planned Expenditures
|
$
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS ANDLUCENT TECHNOLOGIES INC.
10
|
|
Include creative with the completed form for approval.
|
|
|
|
All creative bearing the Lucent Program logo, name and/or Lucent product trademarks must be approved prior to
placing the creative in any media.
|
|
|
|
When Lucent requires modifications to meet the approved guidelines, all required revisions must be made and
resubmitted to Lucent for final approval.
|
|
|
|
Complete performance (e.g. tearsheet) must be submitted to CoAMS, Inc. upon completion of promotional
activity.
|
|
|
|
Lucent Technologies Inc.
|
|
|
|
By:
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS ANDLUCENT TECHNOLOGIES INC.
11
|
|
|
|
|
|
|
|
|
Lucent Technologies
|
|
|
|
|
Sell Lab Industries
|
|
|
|
|
|
|
|
|
|
Co-Marketing Program
|
|
|
|
|
Co-Operative Marketing
|
|
|
Program Results Form
|
|
|
Company
|
|
|
|
|
Information
|
|
|
|
|
|
|
|
Company Name
|
|
Date of Request
|
|
|
|
Business Address
|
|
Program Quarter:
|
|
|
|
City
State
Zip
|
|
|
|
|
Primary Contact
|
|
|
Title
|
Lucent Contract Number
|
|
Phone
Fax
|
|
|
|
Lucent Demand Creation Contact
|
|
E-mail
|
Program
Effectiveness
Describe the Marketing Program
Target Audience:
What problem was the goal of the Marketing Program??
Project Objectives
Did this marketing program meet the objectives?
o
Yes
o
No
Please detail the results of the project in relation to the objectives.
Please
detail the key success factors of the marketing program; , why was this program successful or not successful?
If you ran the same program again in the future, what would do differently?
On a scale of 1-10, please rate the
effectiveness this marketing project.
(l=poor, 5=fair, 10=excellent)
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer Rating (1 -10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lucent Rating (1-10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DON'T FORGET
|
|
SUBMIT RESULTS TO:
|
Submit Marketing
Results Form within 60 days of
Program end.
|
|
Your Lucent Representative as indicated in the Pre-Approval Form
|
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
Lucent Co-Marketing Program
Co-Operative Marketing
Brand & Logo Usage Guidelines
Sellers Co-Marketing Program objective is to combine the Seller brand with the Customers in
a way that builds on the strengths of each. Contribution branding creates a third, bigger brand
that benefits both Parties. The Program is intended to support Seller and Customer images,
strengthen Seller and Customer relationship, and convey Seller and Customer mutual brand messages
to customers.
Leveraging the Seller brand and Program logos provides a significant advantage for service
providers who have built their networks with Seller. While Seller intends for Customer to use
Sellers brand as a point of competitive differentiation, Seller will not allow Customer to use
Sellers brand to directly position themselves against other customers of Seller.
Requirements and Standards
Customer must complete the Creative Approval form and have it approved by Seller for each
Program logo usage.
Marketing communications that incorporate the Program logo and/or other Seller trademarks and the
context in which they appear must be in good taste and represent the policies and philosophies of
Seller. Seller will not reimburse Customer for communications that do not meet these standards: any
misuse of the logos/trademarks will result in suspension from the Program.
General Guidelines
Seller has the right to refuse approval of materials. The Program logos must never be altered
and must be reproduced from the Seller provided logo sheets or diskettes. Participation in the
Program shall not be presented as approval by Seller of any brand, product or company name.
Material must not misrepresent features and/or benefits of Seller. Customer must acknowledge all
Seller trademarks. All material must comply with the applicable law.
Composed Program logos are available on diskette and logo sheets and can be ordered through the
Seller co-marketing program office. Customer must use the following acknowledgement to identify
the logo as a trademark of Seller:
The Lucent co-marketing logo is a trademark of Lucent
Technologies.
Seller Program Logo Elements
Linking Phrase:
Agreed upon by both the Customer and Seller that accurately describes the
relationship. Examples include Network built by..., Wireless Technology provided by...,
Network by..., and Enabled by.... There must be at least one mention of Seller that describes
its part of the relationship.
Innovation Ring:
Key component of the Lucent Technologies corporate signature
Lucent Technologies logotype.
The Lucent Technologies brand must always accompany the Bell Labs
name. The logo can be placed on a screened background as long as the logo is clearly visible and
the background is of high contrast
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
|
|
|
Network
|
|
Linking Phrase
|
Built by
|
|
|
|
|
Innovation Ring
|
|
|
Logotype
|
Print Usage Guidelines
Logo Size:
To determine the Program logo size, apply the formula (L x W)/2 to CUSTOMER logo.
Program logo must be at least one (1) inch in width. Vertical height must be less than 50% of the
Customers logo measured diagonally or vertically, whichever is greater. Do not enlarge or reduce
the logo from existing art. Use the correct size provided on the logo sheet
Logo Position:
Must appear in the lower left or right corners of the advertisement, or embedded in
the copy block. May not be part of the visual element of the promotional material. There should be
a space of at least 1/4 of the height of the innovation ring between the entire signature and any
edge of the printed surface.. The area surrounding the logo should be even, un-patterned, and free
from typography, illustration or other graphic elements.
Logo Color:
The innovation ring must always be printed in Pantone 186*; process mix CO, M100, Y70.
The logo may be reproduced in black or reversed in white of a high-contrast background color.
Usage Guidelines
Television, Inflight, and Infomercials:
Program logo must be incorporated into the broadcast
in appropriate context. Program logo must appear for at least three (3) seconds in a :30 second
commercial. Minimum of a five (5) word voice-over copy mention must be included and may not appear
in legal disclaimer tag.
Radio Advertising:
Must be at least one mention of Lucent Technologies and/or products per
60-second spot and may not appear in legal disclaimer tag.
Screen Placement:
Must be completely within the title-safe area and must not be less than 50% of
the Customers logo measure vertically or diagonally, whichever is greater.
Outdoor Advertising:
Program logo must not be less than 50% of the Customers logo measured
vertically or diagonally, whichever is greater.
Final Review and Approval
Seller reserves the right-of-review and right-of refusal for approval for all marketing
communications under this program prior to printing and or publication.
PROPRIETARY
AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
Attachment L
MESSAGING
1.1 Scope.
This Attachment and the following Appendices contain the prices and additional terms
and conditions, which together with the terms and conditions of the Agreement, are applicable to
Purchase Orders for Sellers Messaging Products and Services identified herein. To the extent of
any inconsistency between a specific term of this Attachment and a specific term of the Agreement,
the term of this Attachment shall govern, but only with respect to the Products and Services
described herein.
Appendix 1 Prices
Appendix 2 Integration Services
Appendix 3 Microsoft End User License Agreement
1.2 Definitions.
In addition to the definitions set forth in
Section 1.1
of the Agreement, the
following terms in this Attachment shall have the meanings ascribed to them below.
1.2.1
Capacity On Demand (COD) Software, COD Software
or
Software with COD
means
Software that determines the capacity of Sellers Messaging Products to, among other things,
store messages, create mailboxes and add functionality to mailboxes. Software with COD may
be enabled at the time of manufacture or remotely after installation, in incremental units
of capacity, for the prices set forth in
Appendix 1.
1.2.2 Enablement Date and Day of Enablement
means the date on which Seller remotely
activates COD Software.
1.2.3 Messaging Product
means a voice, text or multimedia Product described or listed in
this Attachment.
1.2.4 Messaging Software
means voice, text or multimedia Software described or listed in
this Attachment.
1.2.5 Messaging Services
means Services (integration, maintenance, data migration, etc.)
related to Messaging Products or Messaging Software.
1.2.6 System
means, collectively, any Messaging Product (or component thereof) and
Messaging Software composing a voice messaging system, such as the AnyPath
®
System.
1.3 Warranty.
For COD Software, the Warranty Period begins ***. The Warranty
Period for any Messaging Product or Messaging Software is the Warranty Period set forth in the
Agreement. The Warranty Period for any Messaging Product or Messaging Software (or part thereof)
repaired or replaced under the warranty provisions of the Agreement is the unexpired portion of the
original Warranty Period or ***, whichever is longer. Warranty for Services shall be
as set forth in
Section 4.7
of the Agreement. During the Warranty Period for Messaging Products
and Messaging Software ***.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
Seller makes no warranty with respect to defective conditions or non-conformities resulting
from a software application not provided by, recommended in writing by or not developed by Seller
(Non-Lucent Supplied Application)
,
including, but not limited to, any application developed using
any Seller service creation environment product. In addition, Seller shall have no liability
whatsoever for any failure, harm or loss to the extent caused by any Non-Lucent Supplied
Application.
Customer may order certain COD Software features, such as password reset, conference mailbox, skip
password, magistrate mailbox and monitor mailbox, which when enabled could be improperly used in
violation of privacy laws. By ordering such features, Customer assumes all responsibility for
assuring the proper and lawful use of such features by its employees, agents and contractors, but
not for improper or unlawful use by Lucents employees, agents, contractors or third parties and
all liability for any improper or unlawful use of such features by its employees, agents and
contractors, but not for improper or unlawful use by Lucents employees, agents, contractors or
third parties.
1.4 Post-Warranty Maintenance.
After the applicable Warranty Period, Customer may order
maintenance Services, including remote support Services, for Messaging Products and Messaging
Software under Attachment D to the Agreement for the prices stated in
Appendix 1
to this
Attachment.
1.5 Prices and Fees.
The prices and fees for Messaging Products and Messaging Software provided
by Seller are as set forth in
Appendix 1
to this Attachment. *** Transportation
fees shall be charged in accordance with
Section 1.12
of the Agreement.
1.6 Orders for COD Software.
Purchase Orders for Messaging Products, Messaging Software and COD
Software will be placed with Seller in accordance with
Section 1.6
of the Agreement and paid for in
accordance with
Section 1.10
of the Agreement. Except for COD Software installed by Seller,
shipment, delivery, and installation of remotely enabled COD Software will be deemed to have
occurred on the Date of Enablement. Seller will provide Customer with written notification that
the COD Software has been remotely enabled within two (2) business days following the Date of
Enablement. Orders for COD Software may not be canceled on or after the Date of Enablement.
1.7 Integration Services, Training and Documentation.
At Customers request, Seller will provide
any or all of the installation, engineering, integration and data migration Services for the
AnyPath System. A general description of such Services is included in
Appendix 2,
Integration
Services. The specific Messaging Services to be performed for Customer and associated fees will
be described in one or more written statements of work based upon the scope of Messaging Services
required by Customer. Each statement of work will be signed by representatives of both parties
and will be deemed to incorporate the terms of the Agreement, including this Attachment.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
Unless otherwise noted in the applicable Purchase Order, Customer will select, and Seller
will provide to Customer the training, consultation Services and documentation included in the
integration services described in
Appendix 2,
Integration Services at the prices stated in
Appendix 1,
Prices.
1.8 Site Requirements.
Seller will furnish specifications for power, physical and
environmental requirements for the equipment room where Messaging Products and Messaging Software
will be installed. Customer is responsible for ensuring that these specifications are met. In
addition, Customer is responsible for complying with all building and electrical codes applicable
to the equipment room unless Seller has undertaken this responsibility in writing, e.g., in a
statement of work.
1.9 Technical Support Center.
During the Warranty Period for the Messaging Products and Messaging Software, Seller will
provide Customer with access to Sellers technical support
services center (
TSSC
), staffed by
Seller-certified technicians, for 24-hour, 7 days a week problem reporting and resolution
(1-866-Lucent88). The TSSC will provide analysis for System malfunctions, including actions to
verify a problem and the conditions under which the problem exists or recurs, and corrections.
1.10 Availability of Products, Maintenance Service and Parts.
Continuing Product support for
Messaging Products shall be in accordance with Section 2.6 of the Agreement.
1.11 Additional Software License Terms.
In addition to the applicable Software license provisions
of the Agreement, the following additional terms and conditions shall apply to Messaging Software:
1.11.1 COD Software.
Each incremental unit of capacity for COD Software will be considered
a separate item of Messaging Software that is licensed in object code form to Customer
pursuant to the terms of the applicable Software license provisions of the Agreement. Only
that COD Software that has been properly ordered from Seller, paid for by Customer, and
whose enablement has been authorized and directed by Seller, will be licensed to Customer.
1.11.2 Only Seller May Enable Software Features.
Only Seller is entitled to authorize the
enablement of any COD Software. Customer shall not enable or attempt to enable any COD
Software or features or capabilities inherent in the COD Software, and Customer shall not
permit or assist any third party to do so. Seller represents and warrants to Customer
that Seller will authorize and enable all features and/or capabilities of the COD Software
ordered in the applicable Purchase Order.
1.11.3 Conditions for Enablement of Software Feature Products.
As a condition of Sellers
enablement of COD Software features and capabilities, Customer shall make available remote
System-level access to Customers Systems at a time and for a length of time mutually
agreeable to both Customer and Seller. ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
***
1.11.4 Third Party Software.
Customer agrees to be bound by the terms and conditions of
Appendix 3
to this Attachment. With regard to other third party software licensed to
Customer under this Attachment, if the scope of the license and restrictions on use stated
in the Agreement and
Appendix 3
differ from the terms of any license agreement packaged
with Software developed by a third party, the terms and conditions of the packaged license
agreement shall take precedence.
Appendix 1
contains a list of third-party Software that is
bundled with the AnyPath System.
1.12 Internet Access.
Customer acknowledges that the use of and connection to the Internet is
inherently insecure and that connection to the Internet provides opportunity for unauthorized
access by a third party to Customers computer systems, networks and any and all information stored
therein. Without limiting Sellers express warranties to Customer, Customer acknowledges and agrees
that Seller makes no express or implied warranty or condition that its Systems are immune from or
prevent fraudulent intrusion, unauthorized use or disclosure or loss of proprietary information. If
Customer chooses to connect the Messaging Systems to the Internet, Customer does so at its own risk
and is strongly advised to take steps to minimize unauthorized access though any Internet
connection. SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY FAILURE, HARM OR LOSS CAUSED BY
OR ARISING FROM: (I) ANY UNAUTHORIZED ACCESS THROUGH AN INTERNET CONNECTION, REGARDLESS OF WHETHER
A FIREWALL OR OTHER INTERNET SECURITY FEATURE IS INCLUDED WITH THE MESSAGING PRODUCT OR SOFTWARE;
OR (II) CUSTOMERS USE OF THE INTERNET INCLUDING WITHOUT LIMITATION ACCESSING AND DOWNLOADING ANY
MATERIALS AVAILABLE ON THE INTERNET FOR USE ON OR IN CONNECTION WITH THE MESSAGING PRODUCT OR
SOFTWARE. IN ADDITION, SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEGRADATION IN SYSTEM OR PRODUCT
PERFORMANCE CAUSED DIRECTLY OR INDIRECTLY BY AN INTERNET CONNECTION.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
Appendix 1
Prices
for
AnyPath
®
Systems
Lucent
will provide Customer with an Initial
AnyPath
®
System at ***.
This initial system will configured as follows:
|
§
|
|
AnyPath R7 Mainstream software
|
|
|
§
|
|
1 Telephony Front End cabinet
|
|
|
§
|
|
2 High Density Telephony Servers (HDTS)
|
|
|
§
|
|
2 Front-End LAN switches
|
|
|
§
|
|
1 Back-End cabinet
|
|
|
§
|
|
2 Message Servers (MS)
|
|
|
§
|
|
2 Back-End LAN switches
|
|
|
§
|
|
SS7 Integration
|
|
|
§
|
|
American English, American Spanish and Mandarin (if applicable) languages
|
|
|
§
|
|
702 bi-directional ports
|
|
|
§
|
|
200,000 basic voice mailboxes (based on ***)
|
|
|
§
|
|
30,000 Megabytes of Storage (based on ***)
|
|
|
|
|
Note: This initial system pricing does not include spares (optional pricing for
spares provided upon request).
|
Lucent
will provide Customer growth pricing at ***. Any telephony server, message
server, and/or additional cabinetry hardware required to support the additional Basic Voice
mailbox capacity is also included.
|
|
|
Lucent will provide Customer a quote for services pricing including engineering,
installation, and integration based on specified configuration(s) at the time of
deployment.
|
|
|
|
|
Lucent will provide Customer with a ***.
|
For the avoidance of doubt, Customer may change/switch customers associated with mailboxes without
charge.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
Prices for Maintenance Services
Following are the prices for Remote Technical Support (RTS) Service and Repair & Exchange
Service (RES) Advanced ExchangeNext Day for AnyPath Systems, including Sun maintenance Service.
The scope of such Services is described in Attachment D.
|
|
|
|
|
|
|
Service Option
|
|
Price ($) per Year
|
|
Per
|
|
Ordering Instructions
|
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
***
|
|
***
|
|
***
|
|
300780335
|
***
|
|
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
***
|
|
|
***
|
|
***
|
|
***
|
|
300780335
|
***
|
|
|
|
***
|
|
|
***
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
***
|
|
***
|
|
***
|
|
300780335
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
***
|
|
300780335
|
Pricing Notes:
|
|
|
***
|
|
|
|
|
If there are more than 1.6M voice messaging subscribers on an AnyPath System
in a given Market, an additional back-end cabinet is required.
|
|
|
|
|
All prices are in $US, unless stated otherwise.
|
|
|
|
|
If Customer purchases additional Products or Software licenses of the same
type for which RTS is in effect or additional license capacity during the Initial Term
or any Renewal Term, Customer will pay ***.
|
|
|
|
|
The list of AnyPath parts covered under Advanced Exchange is included as
Schedule
1,
Supported Parts List (SPL) for Advanced Exchange.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
Third Party Software
The following third-party Software programs are bundled with the AnyPath R7 System:
|
|
|
Supplier
|
|
Program
|
Microsoft Licensing Inc.
|
|
Windows
|
|
|
|
Nuance Communications Inc.
|
|
Nuance8 ASR for SM, Nuance8 ASR tier A,
Nuance8 ASR tier B, Nuance VAD
|
|
|
|
Rogue Wave Software Inc.
|
|
SourceProC++ and SourcePro Net
|
|
|
|
ScanSoft, Inc.
|
|
Eloquence version 6.0.1.2 TTS,
Speechify version 2.1.0, OSR
(ASR)
|
|
|
|
The SCO Group
|
|
UNIXWARE 7.1.1, UNIXWARE 7
Online Data Manager 3.2
|
|
|
|
SNMP Research
|
|
BRASS, Emanate Master Agent,
Emanate Host Resources MIB Subagent,
Emanate for UNIXWARE Master Agent and
Subagents from DK, Emanate for
UNIXWARE MIB Subagent
|
|
|
|
Sun Microsystems Inc.
|
|
SunOne Web Server, SunOne
Directory Server 5.1
|
|
|
|
Versant Corporation
|
|
POET OO DBMS 5.1
|
|
|
|
Versant Ltd.
|
|
OO DBMS 6.0.1.1
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
Appendix 2
Integration Services
A. AnyPath Installation/Engineering and Integration Services
OVERVIEW
Deployment of AnyPath consists of two services groupings: engineering/installation and integration.
Each service grouping may be purchased separately. Because of the variations in purchased AnyPath
configurations, integration parameters and Customers network structure, the Services that Seller
provides for each deployment are specific to each Customer. Seller will provide engineering,
installation, integration and/or data migration services as determined by Customers requirements
and as defined within the relevant statement of work. Deliverables listed below are applicable to
AnyPath Basic Voice Mail and AnyPath Unified Messaging (UM) configurations. UM may have additional,
optional, Services corresponding to UM optional functions purchased. Additional UM Services will
follow the Basic Voice Mail/UM format listed below, applied to any additional UM functionality
purchased. Briefly stated, general deliverables for each of the offered services are as follows:
Engineering/Installation
|
§
|
|
Site survey (joint effort with Customer)
|
|
|
§
|
|
Subsequent detailed engineering of physical requirements
|
|
|
§
|
|
Ordering and delivery of required cable and connectors and
miscellaneous hardware
|
|
|
§
|
|
Unpacking of equipment
|
|
|
§
|
|
Placement/mounting of equipment
|
|
|
§
|
|
Cabling and connection of cables
|
Integration
|
§
|
|
Project management
|
|
|
§
|
|
Internal cabinet connections
|
|
|
§
|
|
Switch/network consultation as it applies to the VPMOD
|
|
|
§
|
|
Power up sequencing
|
|
|
§
|
|
Database and operating Software verification
|
|
|
§
|
|
Purchased functionality testing
|
|
|
§
|
|
Integration testing
|
|
|
§
|
|
System operational testing
|
|
|
§
|
|
Cut-over
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
INSTALLATION DETAIL
Installation begins with a site survey as part of the preparation process. Customer, in
consultation with Sellers installation group, performs the site survey by completing the
Seller-provided Network Integration Assessment document in conjunction with the New Systems
Installation Topics Guide which describes how to complete the Network Integration document. When
completed, the documentation is provided to Seller for technical assessment and subsequent
engineering. The technical assessment will be presented to and discussed with Customer to address
necessary site requirements. Installation will include physical site preparation requirements to
ready the AnyPath System for implementation. Typical installation detail and responsibilities (of
Seller unless specified) are as follows:
Develop Pre Installation Checklist to include:
|
§
|
|
AnyPath equipment dimensions site clearances
|
|
|
§
|
|
AnyPath equipment location (Seller and Customer)
|
|
|
§
|
|
Verification that installation of equipment is completed
|
|
|
§
|
|
Power and grounding cables / lugs; required circuit breakers for A/B power spec.
|
|
|
§
|
|
Tl cable information connector type/pin outs and quantities
|
|
|
§
|
|
AC service outlet requirements and location (Customer provided
parts and installation)
|
|
|
§
|
|
l0BaseT Lan cable information connector type/pin outs and quantities
(Seller and Customer)
|
|
|
§
|
|
SS7 link information A or F links, SSN (Seller and Customer)
|
|
|
§
|
|
Phones for each switch and/or HLR, to be used for testing (Customer provided)
|
|
|
§
|
|
Access to facilities protocol (Customer provided)
|
Physical Location Determination and Installation
|
§
|
|
Foot print designation for AnyPath complex
|
|
|
§
|
|
AnyPath Complex Rack Bolt Down
|
DC Power and Grounding (PDU) connections and cabling
Telephony Server Front End Cabinet and Message Server Back End Cabinet not each element.
|
§
|
|
3 Power drops -48VDC / 70 Amps (or as specified). Power is 2 Drops
per TS Front End Cabinet and 4 Drops per MS Back End Cabinet
|
|
|
§
|
|
3 Grounding drops Same numbers as above
|
|
|
§
|
|
Termination points (provided by Customer)
|
T1 Physical Cabling and Connections
|
§
|
|
x RJ-45 Lucent 5ESS (or equivalent)
|
|
|
§
|
|
Tl Continuity Testing (Loop back RJ-45)
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
ACS Cabling
|
§
|
|
TCP/IP Ethernet Cables RJ-45 x2 (1per ACS)
|
INTEGRATION DETAIL
Integration will include project management, coordination, planning, consultation, configuration &
integration testing of the AnyPath System by Seller to Customers network, as well as turn
up/cut-over support.
Project Management
Typically, as part of Project Management, Seller works with Customer to enable Customer to
provide or define:
|
§
|
|
Placement of AnyPath network elements
|
|
|
§
|
|
Inbound and outbound trunk groups agree on CIC or MLHG assignments.
|
|
|
§
|
|
Assigned IP addresses for Anypath. Define subnet, gateway, default
router, DHCP
|
|
|
§
|
|
IP address and bind info for the SMSC
|
|
|
§
|
|
Pointcodes Anypath, STPs, HLRs int./ext./both, MSCs, Global Title
|
|
|
§
|
|
Multi Line Hunt Groups
|
|
|
§
|
|
Best option for remote access to AnyPath complex
|
Seller provides project management from project definition through program completion. Project
managers develop the
Statement of Work
that outlines roles and responsibilities, the
Project Plan,
and
Test Plan.
Subject to approval by Customer, the project managers coordinate
Project Plans
and
manage the resources during the project life cycle. The project managers work with Customer
representative(s) to achieve on-time service delivery. The project managers use proven
industry-standard project management processes and procedures.
Initial On-site Integration
|
§
|
|
Power up all AnyPath components
|
|
|
§
|
|
Configure database system options, COS provisioning and mailbox profiles
|
|
|
§
|
|
Verify T1 spans, SS7 links, and bind to SMSC are up
|
Perform Call Test Plan Integration
|
§
|
|
Build test mailboxes on each Message Server (MS)
|
|
|
§
|
|
Verify integration to personal greeting for
different call cases
|
|
¡
|
|
No answer
|
|
|
¡
|
|
Busy
|
|
|
¡
|
|
Multiple Greetings
|
|
|
¡
|
|
Phone off, local, for phones each HLR
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
|
¡
|
|
Phone on, roaming, for phones each HLR
|
|
|
¡
|
|
Phone off, roaming, for phones each HRL
|
|
§
|
|
Verify mailbox locator application for each MS.
|
|
|
§
|
|
Verify integration to each HDTS.
|
Out-call Tests
|
§
|
|
Outcall to pager/phone verify pager sequences and re-try schedule
|
|
|
§
|
|
Call Sender / Rebound (if applicable)
|
|
|
§
|
|
Fax outcall
|
|
|
§
|
|
Speech Dialing/Speech Messaging, etc. application access (if applicable)
|
MWI / Notification Testing
|
§
|
|
Verify phone gets update of proper ICON, Text Message and/or M/W Count
|
|
|
§
|
|
SMS M/W count notification to the SMSC
|
|
|
§
|
|
SMPP cut through page to SMSC
|
|
|
§
|
|
SS7 IS41 TCAP notification INFODIR or MSGDIR. Test Global Title to
each HLR if multiple HLRs in network. Verify with INET that the HLRs send
acknowledgment message back to AnyPath
|
|
|
§
|
|
SS7 ISUP notification
|
|
|
§
|
|
SMDI Notification
|
CDRs, Reports, Logs and Alarms
|
§
|
|
Verify CDR events are generated
|
|
|
§
|
|
Verify reports function
|
|
|
§
|
|
Verify logs and alarms
|
Test
SS7
Signaling ANSI-41 (determine and test)
|
§
|
|
56 K Ports SS7 A-Link assignments to STP
|
|
|
§
|
|
56KV.35 1 per ACS
|
|
|
§
|
|
SS7 Point Code assignment definitions (STP GTT Routing)
|
|
|
§
|
|
ACS SS7
DPC assignment for HLR /switch
|
Test Sample Switch Translations
|
§
|
|
Seller 5ESS (or appropriate switch) translations for Call Forwarding on Busy and
No Answer
|
|
|
§
|
|
Support of outdialing from AnyPath to Seller 5ESS (or appropriate switch)
|
Determine and Test TCP/IP
|
§
|
|
TCP/IP Hub/Switch assignment position
|
|
|
§
|
|
ACS TCP/IP address assignment
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
|
§
|
|
TS and MS TCP/IP address assignment
|
|
|
§
|
|
SMS-C TCP/IP address assignment
|
|
|
§
|
|
Provisioning TCP/IP address assignment
|
|
|
§
|
|
Subnet TCP/IP assignments
|
|
|
§
|
|
TCP/IP Routing assignments
|
|
|
§
|
|
TCP/IP Address assignment for SMS-C
|
Test Operator Web User Interface (OWUI) I/O Service terminal functionality
|
§
|
|
Verify HTTP access to AnyPath
|
|
|
§
|
|
Verify interfaces
|
|
|
§
|
|
Cut-through
|
|
|
§
|
|
Command line interface (CLI)
|
|
|
§
|
|
Voice express menus (Vex)
|
|
|
§
|
|
Command line
|
|
|
§
|
|
Verify On Line Documentation access
|
Provide In-Service/Cut-Over Support
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
SCHEDULE 1
Supported Parts List for Advanced Exchange
|
|
|
|
|
|
|
|
|
|
ADVANCED
|
|
|
|
|
|
EXCHANGE
|
|
|
SYSTEM
|
|
|
COMCODE
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
13
|
|
|
|
|
|
|
|
|
|
ADVANCED
|
|
|
|
|
|
EXCHANGE
|
|
|
SYSTEM
|
|
|
COMCODE
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
14
|
|
|
|
|
|
|
|
|
|
ADVANCED
|
|
|
|
|
|
EXCHANGE
|
|
|
SYSTEM
|
|
|
COMCODE
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
15
|
|
|
|
|
|
|
|
|
|
ADVANCED
|
|
|
|
|
|
EXCHANGE
|
|
|
SYSTEM
|
|
|
COMCODE
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
***
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
16
Appendix 3
Microsoft End User License Agreement
Microsoft Licensing Inc. has contractually obligated Lucent Technologies Inc. to include the
following terms, conditions and disclaimers in any agreement for the supply of a bundled product
incorporating software licensed from Microsoft Licensing Inc. or its affiliates (MS).
Upon delivery of the AnyPath System, you, Customer, will have acquired a device (Device) that
includes software licensed by Lucent Technologies Inc. from MS. Those installed products of MS
origin, as well as associated media, printed materials, and online or electronic documentation
(SOFTWARE) are protected by international intellectual property laws and treaties. The SOFTWARE
is licensed, not sold. All rights reserved.
IF YOU DO NOT AGREE TO THIS END USER LICENSE AGREEMENT (EULA), DO NOT USE THE DEVICE OR COPY THE
SOFTWARE. INSTEAD, PROMPTLY CONTACT LUCENT TECHNOLOGIES INC. FOR INSTRUCTIONS ON RETURN OF THE
UNUSED DEVICE(S) FOR A REFUND.
ANY USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO USED ON THE
DEVICE, WILL CONSTITUTE YOUR AGREEMENT TO THIS EULA (OR RATIFICATION OF ANY PREVIOUS CONSENT).
GRANT OF SOFTWARE LICENSE.
This EULA grants you the following license:
|
Ø
|
|
You may use the SOFTWARE only on the DEVICE.
|
|
|
Ø
|
|
NOT FAULT TOLERANT.
THE SOFTWARE IS NOT FAULT TOLERANT. LUCENT TECHNOLOGIES HAS
INDEPENDENTLY DETERMINED HOW TO USE THE SOFTWARE IN THE DEVICE, AND MS HAS RELIED UPON
LUCENT TECHNOLOGIES TO CONDUCT SUFFICIENT TESTING TO DETERMINE THAT THE SOFTWARE IS
SUITABLE FOR SUCH USE.
|
|
|
Ø
|
|
***
|
|
|
Ø
|
|
Note on Java Support.
The SOFTWARE may contain support for programs written
in Java. Java technology is not fault tolerant and is not designed, manufactured, or
intended for use or resale as online control equipment in hazardous environments
requiring fail-safe performance, such as in the operation of nuclear facilities,
aircraft navigation or communication systems, air traffic
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
17
|
|
|
control, direct life support machines, or weapons systems, in which the failure of
Java technology could lead directly to death, personal injury, or severe physical or
environmental damage. Sun Microsystems, Inc. has contractually obligated MS to make
this disclaimer.
|
|
|
Ø
|
|
No Liability for Certain Damages.
EXCEPT AS PROHIBITED BY LAW, MS SHALL HAVE NO
LIABILITY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING
FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE. THIS
LIMITATION SHALL APPLY EVENT IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT
SHALL MS BE LIABLE FOR ANY AMOUNT IN EXCESS OF ***.
|
|
|
Ø
|
|
Limitation on Reverse Engineering, Decompilation, and Disassembly.
You
may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only
to the extent that such activity is expressly permitted by applicable law
notwithstanding this limitation.
|
|
|
Ø
|
|
SOFTWARE TRANSFER ALLOWED BUT WITH RESTRICTIONS.
You
may permanently transfer rights under this EULA only as part of a permanent sale or
transfer of the Device, and only if the recipient agrees to this EULA. If the SOFTWARE
is an upgrade, any transfer must also include all prior versions of the SOFTWARE.
|
|
|
Ø
|
|
EXPORT RESTRICTIONS.
You acknowledge that SOFTWARE is of US- origin. You agree to
comply with all applicable international and national laws that apply to the SOFTWARE,
including the U.S. export Administration Regulations, as well as end-user, end-use and
country destination restrictions issued by U.S. and other governments. For additional
information on exporting the SOFTWARE, see http://www.microsoft.com/exporting/.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
18
Attachment M
INTELLIGENT NETWORK
Scope.
This Attachment contains additional terms and conditions, which together with the
terms and conditions of the Agreement, are applicable with respect to orders for intelligent
network
(
IN
)
products. To the extent of any inconsistency between a specific term of this
Attachment and a specific term of the Agreement, the specific term of this Attachment shall
govern, but only with respect to IN products. Capitalized terms used in this Attachment shall have
the meanings defined in the Agreement unless specifically defined herein.
Warranty
Period.
The Warranty Period is *** for IN Licensed Materials and
*** for IN products.
Pricing Assumptions: IN Products
Pricing for IN products is set forth in
Attachment A.
In addition, the following assumptions
shall apply to purchases of all IN products:
|
§
|
|
Total maximum number of subscribers supported on a given platform will vary based on
application. Engineering evaluation is necessary to determine the
appropriate configuration based on Customer-specific performance and capacity
requirements.
|
|
|
§
|
|
Engineering factors supporting a capacity model will be used to determine IN
Product sizing (e.g., number of subscribers, busy hour call attempts (transactions) or
completions, call holding time, SS7 link utilization percentage, service type and typical
transaction mix, etc.).
|
|
|
§
|
|
All applications are the current off-the-shelf releases. Off-the-shelf releases
provide base release with optional features available at additional pricing.
|
|
|
§
|
|
Pricing is based on subscribers or transactions supported by each individual
application and minimum subscriber requirements on each individual application. The list
price changes with increasing subscriber or transaction volume.
|
|
|
§
|
|
Discount levels can also vary based on dollar volume or subscriber levels committed.
|
|
|
§
|
|
Customer will provide recommended third-party hardware and software if required for
customer care center and recharge card management system.
|
|
|
§
|
|
Seller reserves the right to modify the platform and/or application architecture
without prior notice, but will notify Customer within a reasonable time prior to such
modification being made effective.
|
|
|
§
|
|
Seller reserves the right to modify the platform and/or application roadmap without
prior notice, but will notify Customer within a reasonable time prior to such modification
being made effective.
|
|
|
§
|
|
Pricing does not include migration of subscriber data.
|
|
|
§
|
|
Pricing does not include any associated switch/mobile switching center, handheld
devices, or peripheral equipment software.
|
|
|
§
|
|
Pricing does not include engineering and installation.
|
|
|
§
|
|
Pricing does not include any custom work required to interface with Customers other
systems.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
1
|
§
|
|
Pricing does not include Systems integration testing
(
SIT
).
SIT
is required when two (2) or more IN applications may be deployed on
the same platform.
|
|
|
§
|
|
Pricing does not include any interoperability testing with
third-party network elements such as but not limited to, MSC, HLR,
SMSC, billing and network management systems, back-office
provisioning and customer care systems.
|
|
|
§
|
|
Application prices do not include any products, middleware,
maintenance, training, CORBA consultancy, engineering,
installation, content or NPI (new product introduction).
Product price includes product warranty only. Maintenance is
available and quoted separately.
|
|
|
§
|
|
Product pricing does not include spares. Maintenance contracts
are available which include spares and exchange
(
SES
)
program.
With SES program, Customer is required to buy minimum recommended
spares.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
2
Mobility IN Software Release Upgrade
(SRU) Policy
COMPAS ID: 112947
Version 5.0
1.0 INTRODUCTION
This document sets forth the terms and conditions applicable if Customer is participating in the
Mobility IN (
Mobility IN
) SRU Program. SRU is available in all regions and is comprised of two
(2) components: Standard Base Release Software and Software Release Upgrade Service, as more fully
described below.
2.0 COVERED SOFTWARE
The SRU Program is available for the following intelligent network
(
IN
)
Software:
|
§
|
|
MiLife Applications Server Platform Software
|
|
|
§
|
|
eCS Platform Software
|
|
|
§
|
|
eSM Platform Software
|
|
|
§
|
|
eMRS Platform Software
|
|
|
§
|
|
eCAM Platform Software
|
|
|
§
|
|
ASM-III Platform Software
|
|
|
§
|
|
PacketIN Platform Software
|
|
|
§
|
|
eCS LE Platform Software
|
|
|
§
|
|
3G eSAE Platform Software
|
|
|
§
|
|
SurePay Suite Application Software
|
|
§
|
|
eCGS application software
|
|
|
§
|
|
RMS application software
|
|
|
§
|
|
CCS application software
|
|
|
§
|
|
Content Charging application software
|
|
§
|
|
IS Application Software
|
|
|
§
|
|
WIN IP Application Software
|
|
|
§
|
|
SHLR Application Software
|
|
|
§
|
|
SDHLR Application Software
|
|
|
§
|
|
eVPN Application Software
|
|
|
§
|
|
MiRingback Application Software
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
3
|
§
|
|
Mobility IN provided Decision Graphs
|
|
|
§
|
|
Mobility IN provided Software Tools; customer specific tools are included.
|
|
|
§
|
|
Optional Feature Software over and above the base feature Software included in
the respective operating Software packages set forth above.
|
|
|
§
|
|
Software Updates and Software Upgrades to the Software packages set forth above.
|
|
|
§
|
|
Such other Software as Mobility IN may agree in writing.
|
Nothing herein shall be deemed to deny Mobility IN the right to discontinue products or Software
with prior written notice to Customer in accordance with the terms of the Agreement.
3.0 ELIGIBILITY REQUIREMENTS FOR SRU
3.1 Installation Performed by Mobility IN
Standard Base Software Releases made available by Mobility IN are eligible for updating
and related services under SRU by Mobility IN. For new customers, SRU shall commence no
later than *** following the completion date of initial
Software deployment. For existing customers, the SRU offer shall commence upon the
expiration of existing IN maintenance agreements and/or the Parties agreed-upon date of
conversion to the SRU Program. All SRU offers presume Customer has a maintenance agreement
in place with Lucent RTS for the same period as SRU covers.
3.2 Other Situations
In all situations not described in
Section 3.1
above, Software shall not be eligible
for SRU until Mobility IN has made an initial evaluation to determine whether modifications
are required to make the IN Software eligible. If, in Mobility INs reasonable judgment,
modifications are required for this purpose, Mobility IN will provide an estimate to
Customer of the costs of making such modifications, including the price for updating the IN
Software to a current, supported, Standard Base Software Release. Upon Customers written
acceptance of the estimate, as evidenced by Customers issuance of a Purchase Order,
Customer will be billed for any such modifications furnished by Mobility IN in accordance
with terms then agreed to by the Parties.
3.3 Customers Warranties of Authority
Customer warrants, as a condition of eligibility for the SRU Program, that Customer (or
one of its Affiliates) is the owner or lessor of any products that runs the IN Software for
which SRU will be provided, or that Customer has the product owners written authorization
to operate such product and obtain such support services. Customer further warrants that
Customer (or one of its Affiliates) is the licensee of the Software for which SRU will be
provided.
3.4 Additional Requirements
The SRU Program is offered only for:
|
§
|
|
Products manufactured by Mobility IN
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
4
|
§
|
|
Products manufactured for Mobility IN pursuant to specifications controlled by
Mobility IN
|
|
|
§
|
|
Products manufactured by contracted third-party vendors and certified by Mobility IN
|
|
|
§
|
|
Products supplied by Mobility IN.
|
The SRU Program is available only on a system basis. To be eligible for the SRU Program, a
system must:
|
§
|
|
Have been installed by Mobility IN
|
|
|
§
|
|
If not installed by Mobility IN, it must pass an acceptance test to the
satisfaction of Mobility IN (unless Mobility IN elects to waive compliance with this
requirement in writing).
|
|
|
§
|
|
Will be operating on a Standard Base Software Release as defined in
Section 11
below.
|
All Mobility IN systems in Customers network must be under the same SRU Program. Some
components of the network may be excluded from the SRU Program on a specific case basis.
The SRU Program must be subscribed to continuously in order to
continuously
receive
the benefits from Mobility IN, i.e. Customer must sign up for the SRU Program every year
in order to continuously receive the benefits from Mobility IN; provided, however, that
the Parties agree that Customer is not required to subscribe to the SRU Program at any time
and Customer may cancel its subscription to the SRU Program at any time.
4.0 STANDARD BASE RELEASE SOFTWARE UPDATES AND UPGRADES
During any period for which Customer has paid the applicable SRU Program fees, or for which
the SRU Program is provided at no additional charge under the terms of this Attachment, Mobility
IN will:
|
§
|
|
Provide to Customer all Software Updates and Software Upgrades that are made
generally available by Mobility IN during such period.
|
|
|
§
|
|
Notify Customer of the availability of each Software Update and Software
Upgrade. Such notifications shall include a description of the content of the Software
Update and Software Upgrade to be provided by Mobility IN, including a list of all new
Optional Software Features.
|
|
|
§
|
|
Notify Customer of preconditions (e.g., additional hardware) for installing
each Software Update and Software Upgrade and/or use of any such new Optional Software
Features. The fulfillment of all such preconditions shall be the
responsibility of Customer.
|
Mobility IN shall also update Documentation to incorporate new or revised operating procedures
resulting from issuance of Software Update and Software Upgrades. Access to web based
Documentation shall be ordered separately for the prices set forth in Attachment A.
If Customer has purchased SRU for Mobility IN platforms and Mobility IN applications, actual
Software Updates and Software Upgrades applied to the platforms shall be governed by the
respective Mobility IN application software upgrade plan and the Agreement.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
5
Software Updates and Software Upgrades are individually warranted, and Customer shall have a
right to possess and use Software Updates and Software Upgrades, as provided in the Agreement.
Subject to the terms and conditions of the Agreement, if Customer fails to pay any applicable SRU
fees for Software Updates and Software Upgrades, the following applies:
|
§
|
|
Licenses granted to Customer under the Agreement for Licensed Software,
including prior Software Updates and Software Upgrades properly in Customers
possession, for which Customer has fully paid all applicable SRU fees, shall not be
voided.
|
|
|
§
|
|
Customer acknowledges that if Customer fails to continue to pay SRU fees,
Customer shall not receive any permanent warranty fixes embodied in subsequent Software
Updates and/or Software Upgrades, but nothing herein shall be deemed to deprive
Customer of any program corrections, work around procedures or other temporary or
permanent fixes to which Customer may be entitled in respect of Software warranty
defects noticed to Mobility IN during the applicable Warranty Period or under any RTS
program.
|
Mobility IN shall not be deemed to be in breach of its Software warranty obligations under the
Agreement with respect to an identified defect if Mobility IN has furnished or intends to furnish,
within a reasonable timeframe, a permanent warranty fix in a no-cost Software Update or Software
Upgrade available to Customer, and Customer shall have no claim for refund or credit under such
warranty provisions in such circumstances. Nothing herein shall excuse Mobility IN of any
obligation Mobility IN may have under applicable warranty provisions or RTS program to use all
reasonable efforts to effect such a temporary fix pending availability of a permanent fix.
SRU entitles Customer to use the features and functionality delivered with Software Updates and
Software Upgrades, including, but not necessarily limited to:
|
§
|
|
Software to support base system improvements, including
performance and operations
|
|
|
§
|
|
Compatibility of existing features with the new release
|
|
|
§
|
|
New base/standard Software features and functionalities
|
|
|
§
|
|
Permanent and/or temporary fixes of problems in prior Software releases
|
When purchasing SRU, Customer is not entitled to the following:
|
§
|
|
Use of Optional Software Features resident in a Software Update or Software Upgrade,
except to the extent that Customer has separately paid the applicable license fees for
the use thereof.
|
In the event that Customer elects not to install Software Update(s) or Software Upgrade(s), upon
expiration of product life cycle, Customer shall be responsible for paying a separate fee for
integration, testing, installation and any other applicable services to the extent such services
are requested by Customer.
Nothing in this Attachment shall be deemed to require Mobility IN to make any new specific
Software features and/or enhancements of Software available as part of Mobility INs Software
Updates or Software Upgrades. ALL Software Updates and Software Upgrades that may be
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
6
provided by Mobility IN under the SRU Program are provided as available. Mobility IN shall
have the sole right to determine whether a new functionality shall be a new Base Software Feature
or functionality or an Optional Software Feature. Further, Mobility IN has the sole right to
determine the Software release level in which any feature/functionality is made available, and
shall have no obligation to implement new functionality on an older software release.
Mobility IN reserves the right to determine the number of Software Updates and Software Upgrades
that will be issued each calendar year for each type of Software covered by SRU. Mobility IN does
not commit that any Software Updates and Software Upgrades will ultimately be released, made
generally available and, therefore, provided during the term that Customer subscribes to the SRU
Program. Mobility IN does not warrant that any specific features or functionality will be included
in any Software Updates and Software Upgrades that may be provided under the SRU Program prior to
the time that a Software Update and Software Upgrade is released and made generally available to
all SRU subscribers.
ALL Software Updates or Software Upgrades provided by Mobility IN under the SRU Program may have
performance/capacity impacts to systems. Customer shall not hold the same expectations to the
performance/capacity of systems after a Software Update or Software Upgrade has been carried out to
the extent that Mobility IN has notified Customer in writing of such performance/capacity impacts.
Mobility IN SRU Program does not cover any additional hardware requirements due to reengineering
the performance/capacity of systems.
Nothing contained in this
Section 4.0
shall limit Lucents warranty obligations to Customer.
5.0 SOFTWARE RELEASE UPGRADE SERVICE
5.1 Software Delivery
Upon receipt of notice of availability of a Software Update or Software Upgrade, Customer
may indicate its desire to obtain the update as follows:
5.1.1 Software Upgrade
Software Upgrades must be scheduled. Customer may request Software Upgrades through
its customer team sales representative.
5.1.2 Software Update
Customer may install Software Updates using Mobility IN-provided Operations,
Administration and Maintenance documentation and release notes. If requested by
Customer, Software Updates can be supported by NPI/integration Services and/or RTS
under a separate arrangement with Customer.
5.1.3 Medium of Delivery
Software Updates and Software Upgrades shall be delivered by Mobility IN in such
medium (e.g., CD-ROMs, DVD-ROMS, or tapes), as Mobility IN shall determine at its
reasonable discretion.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
7
5.2 Pre-Installation Support
Mobility IN shall furnish to Customer Documentation relating to Software Updates and
Software Upgrades that contains information regarding the preconditions to installation that
must be fulfilled by Customer and instructions to be followed during installation. It is
Customers obligation to become familiar with this material prior to commencing any
self-installation of a Software Update or Software Upgrade.
5.3 Software Upgrade Support
In addition to standard pre-installation and installation support, Mobility IN will
provide to Customer additional tools as needed to support a Software Upgrade under the SRU
Program. A Software Upgrade may require the use of specialized software tools and procedures
to evolve existing databases or translations in order to make a product ready to receive and
operate a new Major Release. Software Upgrade procedures will vary from Major Release to
Major Release.
6.0
|
|
COMMENCEMENT OF SRU PROGRAM
|
6.1 General
SRU
is subscribed for a *** *** and then annually thereafter.
In accordance with the terms set forth in
Attachment A
to the Agreement, the SRU Program
fee for a *** period will be determined based on the Mobility IN platforms
deployed and application Subscribers existing on *** of the previous
year.
6.2 Newly Purchased Mobility IN Systems
If Mobility IN supplies to Customer Newly Purchased System(s) comprised of Mobility
INs equipment, then Customer shall in consideration of payment of the SRU pricing when the
system(s) is deployed be entitled to SRU. This support starts on the day that installation
and integration of the system is complete, when Mobility IN performs the installation of the
system. If Mobility IN does not install all of the system, such support will be provided
only upon written request of Customer made within *** of completion of
installation of the system and after the system has been deemed eligible for such support.
6.3 Additional Mobility IN Systems
If Customer has existing systems covered by SRU, any new Mobility IN-manufactured or
furnished system deployed by Customer, whether or not it is purchased directly from Mobility
IN, shall receive SRU coverage, at an additional charge based on incremental Mobility IN
platforms and applications deployed, for the remainder of the SRU Program cycle in which the
deployment occurs. This support starts on the day that installation and
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
8
integration of the system is complete, when Mobility IN performs the installation of
the system. If Mobility IN does not install all of the system, such support will be
provided only upon written request of Customer made within thirty (30) days of completion
of installation of the system and after the system has been deemed eligible for such
support.
6.4 Additions of Non-Lucent Systems/Software
If Customer obtains from any third party additional systems then providing service to
the public, by purchase, lease, merger or otherwise, such acquired systems shall not
automatically be included in the group of Customers systems covered by SRU.
If non-Lucent Software is installed on any of the Mobility IN platforms, the SRU Program
cannot guarantee there will be no impact on non-Lucent Software once Software Update or
Software Upgrade under SRU is carried out.
For as long as Mobility IN continues to offer SRU as described in this Attachment, Customers
SRU may be renewed at the end of a *** period or the exhaust date of the current SRU
program. Unless Customer notifies Mobility IN in writing to the contrary no later than *** prior to the end of their current maintenance or SRU program, Customers existing SRU Program
shall automatically be renewed at the SRU pricing in effect in the current contractual period if
all conditions are the same as the current contractual period. If the SRU Program is allowed to
expire within the same calendar year, upon reinstatement, the prorated SRU payment for the expired
period set forth in Attachment A will be assessed to restart the SRU Program.
8.0
|
|
SRU CHARGES AND INVOICING
|
8.1 Standard Charges for SRU
SRU is based on an annual fee, specified in
Attachment A
to the Agreement, that is
payable in advance. Annual fees are based on Mobility IN platforms deployed and
applications Subscribers. A quarterly payment option is supported.
8.2 Invoicing
All invoices rendered for SRU shall be due in accordance with the terms of the
Agreement. Customer will receive the SRU Program invoice *** prior to the
expiration date of the then-current SRU Program. SRU will be terminated if Customer fails to
pay the invoice as provided in the Agreement.
9.0
|
|
TERMINATION OF SRU PROGRAM
|
Customer may terminate any effective SRU Program, but no such termination and no modification shall
be effective except upon *** prior written notice to Mobility IN. In the event of any
such termination by Customer as described herein, a pro-rated refund of the applicable fees
previously paid or due for such calendar year shall be payable to Customer within
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
9
thirty (30) days of termination. Nothing herein shall be deemed to excuse Mobility IN from
any general support obligation set forth elsewhere in the Agreement.
10.0
|
|
SOFTWARE UPGRADE SUPPORT POLICY
|
10.1 Normal Progression/Skipping
Mobility INs Software is designed for sequential Software Upgrades progression (for
example, eCS Major Release X to eCS Major Release X+l). Under the annual SRU Program, no
Major Release can be skipped.
10.2 Major Release Life Cycle Ratings
Software ratings apply to Major Releases. SRU does not alter these ratings. Once a Major
Release becomes generally available to Mobility IN customers, it begins to migrate through
three (3) product ratings during its life cycle: Standard Availability (SA), Limited
Availability (LA), and Discontinued Availability (DA) . Different rated Major Releases are
subject to different levels of support and use. The length of time that a Major Release
remains at each product rating varies depending upon Mobility INs schedule for issuing new
Major Releases.
When a Software release has been declared generally available, it moves into the SA stage
and remains in that classification until the next sequential Major Release has been declared
generally available, at which time the original release moves down in rating. For example,
once made generally available, Major Release X will remain SA until Major Release X+l is
issued. At that time, Major Release X will move down one rating to LA. With issuance of
Major Release X+2, Major Release X will move down to the final DA rating.
Any Software Update that is issued during a rating period will not change or otherwise
affect the rating of a Major Release. For example, if while eCS Major Release X is rated
SA, Mobility IN issues a Software Update for that release, Major Release X shall retain its
SA rating. Such Software Update shall be considered part of the Major Release and will have
the same rating as that Major Release.
10.3 Support Available for Differently Rated Major Releases
SRU will only apply to releases that are orderable. Customers are required to upgrade their
component software to the Standard Base Software Release during the term of the Software
support life cycle.
For purposes of this Attachment, the following additional definitions shall apply:
SRU Program
and
SRU
means the optional program under which Mobility IN offers to Customer
Software Updates and Software Upgrades for which Customer has paid the applicable fee, as more
particularly described in this Attachment.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
10
Newly Purchased Systems
means the initial equipment or Mobility IN application deployed by
Customer in a market for which installation and integration has been completed, rendering it
commercially viable.
Optional Software Feature
means a feature or functionality of Software resident in a Software
Update or Software Upgrade but which is not licensed to Customer as part of SRU and is available
for use by Customer only if Customer pays the applicable separate license fee therefore.
Software Release Upgrade Service
means the Services described in
Section 5.0
above.
Standard Base Software Release
means the two (2) most recent Major Releases that have been
declared generally available. For example, if Major Release X is the latest generally available
release, it and Major Release X-l are considered Standard Base Software Releases.
Subscriber
means a user of Customers wireless telecommunications services
Standard Availability
or
SA
means:
|
§
|
|
A Software release has become generally available
|
|
|
§
|
|
Fixes for non-service-affecting engineering complaints (EC) will be provided in the next standard release.
|
|
|
§
|
|
Retrofit and growth will be supported
|
|
|
§
|
|
Software support levels include remedies for Severity Level 1 through 4 problems.
|
|
|
§
|
|
Periodic Software Updates will be provided to Customer with corrections requested
by Customer as well as corrections requested by other customers.
|
Limited Availability LA
means:
|
§
|
|
LA rating is applied near the end of the software life cycle and designates
when Mobility IN product is no longer orderable for a newly purchased system.
|
|
|
§
|
|
Transitional support, depending upon customer need and resource availability, will
vary with each service and release
|
|
|
§
|
|
Retrofits and terminal growth services are available
|
Discontinued Availability (DA)
means:
|
§
|
|
Customer receives one year notice of DA prior to effective date
|
|
|
§
|
|
Software is isolated from current updates and any Software Update activity
|
|
|
§
|
|
No updates will be issued unless otherwise agreed upon and limited to ***.
|
|
|
§
|
|
No request will be honored unless otherwise agreed upon and is a billable item.
|
|
|
§
|
|
Information on DAd release can be de-archived only within the first year of
becoming discontinued.
|
|
|
§
|
|
Availability of services (such as growth) that require archived information is
limited to the first year after a product has DA status
|
|
|
§
|
|
Growth is provided only for the most recent release with a DA rating.
|
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
11
|
§
|
|
Engineering complaints (ECs) are no longer addressed.
|
|
|
§
|
|
Lucent does not retain test laboratories for releases within a DA rating.
|
|
|
§
|
|
Any fix or work around provided within this rating is tested in Customers system.
|
|
|
§
|
|
Essential support attempts to provide a workaround fix
or
a retrofit-based
workaround for an outage, call processing, or billing problem.
|
|
|
§
|
|
There is no assurance that a workaround or a fix will be available for a problem.
|
|
|
§
|
|
A workaround fix would be applied by a craft or overwrite only and the customer
copy of the Software release is the sole vehicle of any fix or work around.
|
|
|
§
|
|
Any support may be billable to Customer.
|
|
|
§
|
|
On older than most current DA Release will have to follow a different process
as migration is no longer supported as a standard product. The customer will need to
contract Lucent to develop a custom migration plan.
|
Notes:
|
1.
|
|
Any service that is not offered for a DAd release will be a billable service.
|
|
|
2.
|
|
In-hours support is limited to information and resources available for a DAd release.
|
|
|
3.
|
|
Out-of-hours support for a DAd release is restricted to outage situations only.
|
End of Life
means:
|
§
|
|
*** after effective DA
|
|
|
§
|
|
Software no longer supported in any manner
|
Severity Levels
shall have the meanings set forth in
Attachment D.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
12
Exhibit 10.6
AMENDED AND RESTATED
SERVICES AGREEMENT
by and between
METROPCS WIRELESS, INC.
and
ROYAL STREET COMMUNICATIONS, LLC
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
|
|
|
***
|
|
Where this marking appears throughout this Exhibit 10.6,
information has been omitted pursuant to a request for confidential
treatment and such information has been filed with the SEC separately.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE I DEFINITIONS
|
|
|
1
|
|
1.1 Definitions
|
|
|
1
|
|
1.2 Capitalized Terms
|
|
|
8
|
|
ARTICLE II AUTHORITY
|
|
|
8
|
|
2.1 Control of Royal Street
|
|
|
8
|
|
2.2 Specific Limitations
|
|
|
8
|
|
2.3 Bank Accounts
|
|
|
9
|
|
2.4 Checks
|
|
|
9
|
|
2.5 Excluded Services
|
|
|
9
|
|
ARTICLE III SERVICE AND SUPPORT OBLIGATIONS OF METROPCS
|
|
|
10
|
|
3.1 General
|
|
|
10
|
|
3.2 Specific Responsibilities
|
|
|
10
|
|
ARTICLE IV ASSISTANCE OF METROPCS IN PREPARING BUDGETS AND BUSINESS PLANS
|
|
|
11
|
|
4.1 General
|
|
|
11
|
|
4.2 Support With Annual Budgets
|
|
|
11
|
|
4.3 Support With Business Plans
|
|
|
11
|
|
ARTICLE V TECHNICAL ASSISTANCE TO BE OFFERED BY METROPCS
|
|
|
11
|
|
5.1 Build Out
|
|
|
11
|
|
5.2 Telephone Numbers
|
|
|
14
|
|
5.3 Reciprocal Roaming Arrangements
|
|
|
15
|
|
5.4 Interconnection Agreements
|
|
|
15
|
|
5.5 Interexchange Service
|
|
|
16
|
|
ARTICLE VI OTHER UNDERSTANDINGS
|
|
|
16
|
|
6.1 Service Interruptions
|
|
|
16
|
|
6.2 Customer Relations
|
|
|
16
|
|
6.3 Calling Plans
|
|
|
16
|
|
6.4 Performance Standards
|
|
|
17
|
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE VII REPORTS AND AUDITS
|
|
|
17
|
|
7.1 Alarm Monitoring and Reports
|
|
|
17
|
|
7.2 Traffic Reports
|
|
|
17
|
|
7.3 Billing Information
|
|
|
17
|
|
ARTICLE VIII METROPCSS PERSONNEL
|
|
|
18
|
|
8.1 General
|
|
|
18
|
|
8.2 Independent Contractors
|
|
|
18
|
|
ARTICLE IX APPROVALS
|
|
|
19
|
|
9.1 Royal Street Supervisor
|
|
|
19
|
|
9.2 Time Schedule for Approval
|
|
|
19
|
|
9.3 Failure to Approve
|
|
|
19
|
|
ARTICLE X COMPENSATION TO METROPCS
|
|
|
20
|
|
10.1 Reimbursement
|
|
|
20
|
|
10.2 Support Services Fees
|
|
|
21
|
|
10.3 Offsets
|
|
|
21
|
|
ARTICLE XI ROYAL STREET PROVISION OF WHOLESALE SERVICES TO METROPCS
|
|
|
22
|
|
11.1 Coordination of System Capacity
|
|
|
22
|
|
11.2 Expansion of System Capacity
|
|
|
22
|
|
11.3 Allocation of Capacity
|
|
|
22
|
|
11.4 Royal Streets Right to Sell Wholesale PCS Service
|
|
|
22
|
|
11.5 Royal Street Responsibility for Royal Street Customers
|
|
|
23
|
|
11.6 MetroPCS Responsibility for MetroPCS
Customers
|
|
|
23
|
|
ARTICLE XII FEES FOR WHOLESALE SERVICE
|
|
|
23
|
|
12.1 Wholesale Services Fees
|
|
|
23
|
|
12.2 Fees Exclusive of Taxes and Other
Assessments
|
|
|
24
|
|
12.3 Most Favored Nation
|
|
|
24
|
|
ARTICLE XIII
|
|
|
24
|
|
13.1 Wholesale Services Payment Procedures
|
|
|
24
|
|
13.2 MetroPCS Support Services Payment
Procedures
|
|
|
25
|
|
13.3 Out-Of-Pocket Expenses
|
|
|
25
|
|
13.4 Disputes
|
|
|
25
|
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
ii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
13.5 Suspension of Services
|
|
|
25
|
|
13.6 Audits
|
|
|
25
|
|
ARTICLE XIV APPLICABLE TAXES
|
|
|
26
|
|
14.1 Payment of Taxes
|
|
|
26
|
|
14.2 Taxes on Royal Streets Lease of Equipment and
Facilities and MetroPCSs Pro vision of Services
|
|
|
26
|
|
14.3 Taxes on MetroPCSs Purchase of MetroPCS Wholesale Services
|
|
|
27
|
|
14.4 Cooperation
|
|
|
27
|
|
ARTICLE XV ACCOUNTING AND REPORTS
|
|
|
28
|
|
15.1 Books and Records
|
|
|
28
|
|
ARTICLE XVI TERM AND TERMINATION
|
|
|
28
|
|
16.1 Term
|
|
|
28
|
|
16.2 Termination
|
|
|
29
|
|
16.3 Transition
|
|
|
31
|
|
16.4 Remedies in Lieu of Termination
|
|
|
31
|
|
ARTICLE XVII INTELLECTUAL PROPERTY AND TRADEMARKS
|
|
|
32
|
|
ARTICLE XVIII COMPLIANCE WITH LAWS
|
|
|
32
|
|
18.1 Compliance with the Communications Act
|
|
|
32
|
|
18.2 No Violation
|
|
|
32
|
|
18.3 Preservation of Control
|
|
|
32
|
|
18.4 Regulatory Submissions
|
|
|
32
|
|
18.5 Modification or Amendment of this Agreement
|
|
|
33
|
|
ARTICLE XIX INDEMNIFICATION
|
|
|
33
|
|
19.1 General
|
|
|
33
|
|
19.2 Indemnification Procedure
|
|
|
34
|
|
19.3 Mitigation of Damages
|
|
|
35
|
|
19.4 Claim of Infringement
|
|
|
35
|
|
ARTICLE XX REPRESENTATIONS AND WARRANTIES
|
|
|
35
|
|
20.1 Organization, Standing and Authority
|
|
|
35
|
|
20.2 No Violation
|
|
|
36
|
|
20.3 Consents and Approvals
|
|
|
36
|
|
20.4 Regulatory Compliance of Facilities
|
|
|
36
|
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
iii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
20.5 MetroPCSs Covenant of Workmanlike
Quality
|
|
|
36
|
|
ARTICLE XXI LIMITATION OF LIABILITY
|
|
|
37
|
|
21.1 Limitations of Responsibility
|
|
|
37
|
|
21.2 Limitations of Damages
|
|
|
37
|
|
21.3 Limitations of Liability
|
|
|
37
|
|
21.4 Further Limitations
|
|
|
38
|
|
ARTICLE XXII CONFIDENTIALITY
|
|
|
38
|
|
22.1 General
|
|
|
38
|
|
22.2 Obligation to Protect Proprietary
Information
|
|
|
38
|
|
22.3 Judicial or Administrative Proceedings
|
|
|
39
|
|
22.4 Loss or Unauthorized Use
|
|
|
39
|
|
22.5 Nondisclosure Agreements
|
|
|
39
|
|
22.6 Termination
|
|
|
39
|
|
22.7 Irreparable Injury by Disclosure to
Competitors
|
|
|
39
|
|
22.8 Survival of Nondisclosure Obligations
|
|
|
40
|
|
ARTICLE XXIII GENERAL PROVISIONS
|
|
|
40
|
|
23.1 Americans With Disabilities Act
|
|
|
40
|
|
23.2 Amendment
|
|
|
40
|
|
23.3 Assignment
|
|
|
40
|
|
23.4 Attachments
|
|
|
40
|
|
23.5 Cooperation
|
|
|
40
|
|
23.6 Costs, Expenses and Attorneys Fees
|
|
|
41
|
|
23.7 Dispute Resolution
|
|
|
41
|
|
23.8 Entire Agreement
|
|
|
41
|
|
23.9 Execution
|
|
|
41
|
|
23.10 Force Majeure
|
|
|
41
|
|
23.11 Good Faith Performance
|
|
|
41
|
|
23.12 Governing Law
|
|
|
42
|
|
23.13 Insurance
|
|
|
42
|
|
23.14 Joint Work Product
|
|
|
42
|
|
23.15 Labor Relations
|
|
|
42
|
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
iv
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
23.16 No Waiver
|
|
|
42
|
|
23.17 Nonexclusive Dealings
|
|
|
43
|
|
23.18 Notices
|
|
|
43
|
|
23.19 Publicity
|
|
|
44
|
|
23.20 Regulatory Filings
|
|
|
44
|
|
23.21 Relationship of Parties
|
|
|
44
|
|
23.22 Rules of Construction
|
|
|
44
|
|
23.23 Severability
|
|
|
45
|
|
23.24 Third Party Warranties
|
|
|
45
|
|
23.25 Third Party Beneficiaries
|
|
|
45
|
|
23.26 Use of Contractors and Agents
|
|
|
45
|
|
23.27 Venue; Waiver of Jury Trial
|
|
|
46
|
|
|
|
|
|
|
APPENDIX A
|
|
|
|
|
|
|
|
|
|
Master Equipment and Facilities Lease Agreement
|
|
|
|
|
|
|
|
|
|
APPENDIX B
|
|
|
|
|
|
|
|
|
|
Wholesale Services Fees
|
|
|
|
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
v
SERVICES AGREEMENT
This Amended and Restated Services Agreement (this Agreement) is executed on December 15,
2005 as of November 24, 2004, by and between Royal Street Communications, LLC, a Delaware limited
liability company, with its principal offices located at 611 Hill Street, Southampton, NY 11968
(Royal Street), and MetroPCS Wireless, Inc., a Delaware corporation, with its principal offices
located at 8144 Walnut Hill Lane, Suite 800, Dallas, Texas (MetroPCS). Individually, each of
Royal Street and MetroPCS is a Party and collectively they are Parties.
RECITALS
WHEREAS, Royal Street and MetroPCS desire to enter into an agreement pursuant to which
MetroPCS agrees, upon request and at all times subject to Royal Streets oversight, review,
supervision and control, to provide support services in connection with the design, construction,
maintenance and operation of a broadband PCS System that is technically and operationally
compatible with systems owned and operated by MetroPCS in the event that Royal Street is a
Successful Bidder in Auction No. 58;
WHEREAS, Royal Street has concluded that it is in Royal Streets best interest to devote a
portion of its network capacity to the sale of PCS Service to MetroPCS on a wholesale basis, and
MetroPCS wishes to enter into an agreement to facilitate this Royal Street plan;
WHEREAS, the parties desire to amend and restate in its entirety the Services Agreement, which
originally was entered into as of November 24, 2004, by and between Royal Street and MetroPCS;
WHEREAS, Royal Street and MetroPCS desire to enter into this Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.1
Definitions
For purposes of this Agreement, and in addition to the terms defined elsewhere in this
Agreement and in the LLC Agreement, the following terms have the following meanings:
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
Act
or
Communications Act
means the Communications Act of 1934, as amended by,
inter alia,
the Telecommunications Act of 1996, codified at 47 U.S.C. § 15l
, et seq.,
as it may be amended in
the future, including the rules, regulations and policies of the FCC.
Affiliate
shall mean, with respect to any Person, any Person directly or indirectly
Controlling, Controlled by, or under Common Control with such other Person at any time during the
period for which the determination of affiliation is being made. For the purposes of this
Agreement, Control (including the correlative meanings of the terms Controlled by and under
Common Control with), as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
Agreement
means this Services Agreement entered into between MetroPCS and Royal Street, and
any amendments thereto.
Ancillary Agreements
shall mean the Services Agreement, the Credit Agreement and the
related agreements appended thereto.
Annual Budget
shall have the meaning set forth in Section 2.9(a) of the LLC Agreement.
Applicable Law
means, with respect to any Person, any federal, state, local or foreign law,
statute, ordinance, rule, regulation, judgment, order, injunction, decree, arbitration award,
agency requirement, franchise, license or permit of, or any interpretation or administration of any
of the foregoing by, any Governmental Entity, whether in effect as of the date hereof or
thereafter, and in each case as amended, applicable to such Person or its Affiliates or their
respective assets.
Associated MetroPCS CMRS System
means a MetroPCS CMRS System with which the Royal Street
System is compatible.
Auction
No.
58
means the Broadband PCS Auction conducted by the FCC as described in Public
Notice, DA-04-3005 (rel. Sep. 16, 2004).
Auction Process
means the process and procedure through which those Licenses being auctioned
by the FCC in Auction No. 58 were offered to qualified bidders commencing with preparation and
filing of FCC Form 175 for Auction No. 58 through the award of any License for which Royal Street
is the Successful Bidder.
Breach Notice
shall have the meaning set forth in Section 16.2(a)(i)(A) of this Agreement.
BTS
means a Base Transceiver Station.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
2
Budget Officer
shall have the meaning set forth in Section 2.9(a) of the LLC Agreement.
Build-Out
means the construction of a Commercial Mobile Radio Service system in accordance
with Applicable Law and the rules and regulations promulgated by the FCC.
Business Plan
shall have meaning set forth in Section 2.10(a) of the LLC Agreement.
CALEA
means the Communications Assistance for Law Enforcement Act of 1994 (47 U.S.C. § 1001
et seq.).
CDMA
shall refer to the Code Division Multiple Access broadband technology.
Cell Site
means the physical location of Cell Site Equipment.
Cell Site Equipment
means the physical facilities, including, but not limited to, any real
property interests, transmitters, receivers, transceivers, transceiver cabinets, antenna systems,
transmission lines, BTSs, RF combining and filtering equipment, multi-carrier channel amplifiers,
power supplies, outdoor cabinets and/or shelters, environmental conditioning equipment, alarm and
monitoring equipment and other miscellaneous equipment and facilities located at a Cell Site or
BTS, as the case may be, and used to transmit and receive wireless communications in connection
with a CMRS System and to alarm and monitor the CMRS System.
Chief Executive Officer
or
CEO
shall refer to the chief executive officer of Royal Street
as designated by the Management Committee pursuant to the LLC Agreement.
Claims
shall have the meaning set forth in Section 19.1 of this Agreement.
Commercial Mobile Radio Service
or
CMRS
means a commercial mobile radio service as defined
in 47 C.F.R. § 20.3.
Commercial Service
shall mean the provision in exchange for consideration of wholesale or
retail PCS service by a licensee to at least one unaffiliated customer or subscriber.
Construction Group
shall have the meaning set forth in Section 5.1 (a) of this Agreement.
Construction Plan
shall have the meaning set forth in Section 5.1(c) of this Agreement.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
3
Construction Schedule
shall have the meaning set forth in Section 5.1 (a) of this
Agreement.
Credit Agreement
means the Second Amended and Restated Credit Agreement by and between
MetroPCS and Royal Street executed on December 15, 2005 as of December 22, 2004, as that agreement
may be amended from time to time.
Effective Date
means the date of the release of a Public Notice by the FCC announcing
that Royal Street was the high bidder on any license or licenses that were subject to auction
in Auction No. 58.
Equipment and Facilities
means such equipment, facilities, databases, data processing
services, software, and such other Intellectual Property, hardware, functions, real property, and
services employed in the operation of a CMRS System.
Equipment and Facilities Lease Agreement
means the form of Master Equipment and
Facilities Lease Agreement set forth in Appendix A hereto.
Failed Services
shall have the meaning set forth in Section 16.4 of this Agreement.
FCC
means the Federal Communications Commission created pursuant to the Act, or any
successor agency.
Final Order
means an order as to which the time for filing a request for administrative or
judicial relief, or for instituting administrative review
sua
sponte,
shall have
expired without any such filing having been made or notice of review having been issued; or, in the
event of such filing or review
sua
sponte,
as to which such filing or review shall
have been disposed of favorably to the order and the time for seeking further relief with respect
thereto shall have expired without any request for such further relief having been filed.
GAAP
shall mean United States generally accepted accounting principles in effect from
time to time.
Governmental Entity
means any government or political subdivision thereof, including without
limitation, any state, regional or municipal authority, any governmental department, ministry,
commission, board, bureau, agency, regulatory authority, instrumentality, judicial, or
administrative body, having jurisdiction over the matter or matters in question.
Indemnified Party
shall have the meaning set forth in Section 19.1 of this Agreement.
Indemnifying Party
shall have the meaning set forth in Section 19.1 of this Agreement.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
4
Independent Contractor
means a Person unaffiliated with MetroPCS who provides services
involved in operating the Royal Street Systems.
Intellectual Property
means ideas, patents, patent applications, copyrights, trade secrets,
software and technology, but specifically excludes trademarks, service marks, trade names, and
brands.
LLC Agreement
means the Amended and Restated Limited Liability Company Agreement of Royal
Street Communications, LLC, executed on December 15, 2005 as of November 24, 2004, by and among
MetroPCS Wireless, Inc., GWI PCS1, Inc. and C9 Wireless, LLC, as that agreement may be amended from
time to time.
License
means any license for which Royal Street is a Successful Bidder.
Licensed Area
means the Cellular Geographic Service Area, the Major Trading Area or the
Basic Trading Area (as those terms are defined in the FCCs rules) in which Royal Street or
MetroPCS is licensed by the FCC to provide CMRS Service.
Management Committee
means the governing committee of Royal Street as set forth in the
LLC Agreement.
Market
means the geographic area(s) in which Royal Street is authorized by the FCC to
provide Commercial Mobile Radio Service.
MetroPCS Brand Wireless Services
means retail CMRS Services marketed under the MetroPCS
trademark(s), whether by MetroPCS or by Royal Street.
MetroPCS CMRS System
means any CMRS System owned or operated by MetroPCS or used by MetroPCS
to provide a MetroPCS Brand Wireless Service, except that it shall not include any of the Royal
Street Systems.
MetroPCS Wholesale Service
means the wholesale PCS Service that Royal Street provides to
MetroPCS in the Royal Street Licensed Area.
MetroPCS Wholesale Services Fee
shall have the meaning set forth in Section 12.1 of this
Agreement.
Monthly Fee
shall have the meaning set forth in Section 10.2(a) of this Agreement.
Network
means the telecommunications infrastructure, whether leased or owned, that
Royal Street uses to provide MetroPCS Wholesale Service.
Network Service
means the services provided by MetroPCS to Royal Street under this Agreement
that Royal Street uses to provide PCS Service in the Royal Street Licensed Area using the spectrum
licensed by the FCC to Royal Street.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
5
Other Network Service
means the Network Services that Royal Street uses to provide Wholesale
Services to Other Royal Street Customers in the Royal Street Licensed Area.
Other Royal Street Customer
means a customer other than MetroPCS to PCS Service provided by
Royal Street on a wholesale basis and a customer other than MetroPCS that has entered into a
contract to take PCS Service from Royal Street on a wholesale basis.
Other Wholesale Services
means the Wholesale PCS Services that Royal Street provides
to Other Royal Street Customers in the Royal Street Licensed Area.
Out-of-Pocket Expenses
shall have the meaning given in Section 10.1.
PCS or PCS Service
means the personal communications services and related
telecommunications services authorized by Part 24 of the FCCs rules.
PCS System
means the radio frequency and associated Equipment and Facilities necessary to
permit mobile or portable PCS customer premises equipment to communicate with the PSTN or other
interconnected telecommunications network for the provision of PCS Service.
PSTN
means the Public Switched Telephone Network.
Party
means either Royal Street or MetroPCS.
Parties
means Royal Street and MetroPCS.
Person
means any natural person or any sole proprietorship, corporation, limited liability
corporation or company, partnership, limited partnership, limited liability partnership, joint
venture, or other business entity, but shall not include any Governmental Entity or organization.
Planning Group
has the meaning set forth in Section 2.10(a) of the LLC Agreement.
Proprietary Information
means information of a confidential and proprietary nature that a
Party has the right to possess, and that the Party maintains in confidence.
Remitting
shall have the meaning set forth in Section 14.1 of this Agreement.
Royal Street Equipment and Facilities
means the Equipment and Facilities, whether owned or
leased, employed by Royal Street in the operation of its CMRS systems as such Equipment and
Facilities may change from time to time, including, but not limited to, Cell Sites, Cell Site
Equipment, switches, transport facilities, interconnection services and transport service.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
6
Royal Street System(s)
means the CMRS system(s) licensed to, constructed and operated by
Royal Street in each of the Markets.
Successful Bidder
means any Person that is awarded one (1) or more license(s) by the FCC
pursuant to the Auction Process related to Auction No. 58.
Support Services
means the services provided by MetroPCS to Royal Street to assist in the
construction, maintenance and operation of a broadband PCS System as set forth in greater detail in
Articles I through X of this Agreement.
Support Services Fee
shall have the meaning set forth in Section 10.2(a) of this Agreement.
System Capacity
means the total number of minutes of use that the Royal Street System
in a Market is designed to provide at the bouncing busy hour, as that capacity may be
determined through Royal Streets business and budget planning process.
Systems Contact
shall have the meaning set forth in Section 8.1 (a) of this Agreement.
Tax
means any federal, state, local or foreign income, profits, franchise, gross receipts,
environmental, customs duty, stamp, payroll, sales, employment, disability, use, property,
withholding, excise, production, value added, occupancy or other tax, duty or assessment of any
nature whatsoever, including Universal Service Charge contributions or fees, together with all
interest, penalties and additions imposed with respect to such amounts.
Technical Services Plan
shall have the meaning given in Section 5.1(e).
Trademark
means trademark, service mark, trade name, logo, brand or similar distinguishing
mark.
Unfettered Access
means such physical access by Royal Street as is in accordance with
the rules, regulations and published decisions of the FCC.
Voting Securities
means any securities or other interests entitled to vote in the ordinary
course in the election of directors or of Persons serving in similar governing capacity of any
Person, including the voting rights attached to such securities or other interests.
Wholesale Commitment
shall have the meaning set forth in Section 11.3 of this Agreement.
Wholesale Services
means the provision of PCS Service by Royal Street on a wholesale basis
to MetroPCS or to Other Royal Street Customers.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
7
1.2
Capitalized Terms
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the LLC Agreement.
ARTICLE II
AUTHORITY
2.1
Control of Royal Street
MetroPCS shall have responsibility for the day-to-day operations of Royal Street subject to
the direction and control of the Management Committee. In accordance with the foregoing, it is the
Parties express intention, understanding and agreement that the Management Committee and officers
of Royal Street, acting pursuant to the authority granted them under the LLC Agreement or by the
Management Committee, shall retain authority and ultimate control over the day-to-day operations of
Royal Street; the determination and implementation of policy and business strategy; the preparation
and filing of all materials with the FCC and other Governmental Entities; the employment,
supervision and dismissal of all personnel providing services under this Agreement; the payment of
all financial obligations and operating expenses (except for Out-of-Pocket Expenses); and the
negotiation of all contracts to be entered into by Royal Street. The Parties agree that Royal
Street shall retain Unfettered Access to all Equipment and Facilities associated with the Royal
Street Systems and shall receive all monies and profits and bear the risk of loss from the
operation of the Royal Street Systems.
2.2
Specific Limitations
|
(a)
|
|
In addition to those matters elsewhere listed in this Agreement for
which Royal Streets prior approval is required, MetroPCS shall not have authority to
undertake any of the following actions without Royal Streets prior written authority:
|
|
(i)
|
|
modify or take actions inconsistent with the
Annual Budget, Business Plan, Construction Schedule, Construction Plan
or Technical Services Plan as approved by the Management Committee;
|
|
|
(ii)
|
|
establish or alter the terms and conditions upon which
Royal Street offers CMRS;
|
|
|
(iii)
|
|
initiate or settle any legal action or litigation in
the name of Royal Street or the Royal Street Systems
|
|
|
(iv)
|
|
prepare any filings with the FCC or any other
Governmental Entity with respect to any Royal Street System.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
8
|
(b)
|
|
In no circumstances shall MetroPCS have authority to undertake any of the
following actions:
|
|
(i)
|
|
sell, trade or surrender any of the Licenses, or
attempt to materially modify any of the Licenses;
|
|
|
(ii)
|
|
sign or make any filings with the FCC or any other
Governmental Entity with respect to any Royal Street System; or
|
|
|
(iii)
|
|
cause Royal Street to incur any debt for borrowed
money or to grant a security interest in or to hypothecate any assets of
any Royal Street System.
|
2.3
Bank Accounts
All expenses associated with the operation of the Royal Street Systems, except for
Out-of-Pocket Expenses, shall be paid from Royal Streets accounts. There shall be no commingling
of Royal Streets and MetroPCSs funds.
2.4
Checks
Royal Street may by
written designation authorize a MetroPCS representative to sign checks or
send wire payments for non-recurring expenses in amounts less than *** and to sign other checks or send other wire payments in amounts
less than *** for recurring expenses, provided all such expenditures are in accordance
with the approved Annual Budget. MetroPCS shall promptly send to Royal Street copies of all such
checks written or wire payments sent for the Royal Street Systems, along with accompanying
invoices.
2.5
Excluded Services
The Parties acknowledge and agree that Royal Street will be wholesaling certain network
telecommunications services to MetroPCS and that MetroPCS will utilize the purchased services to
provide retail telecommunications services to end users. Royal Street also is reserving certain
system capacity to enable it to wholesale network telecommunications services to Persons other than
MetroPCS and, if the Management Committee so determines, to sell retail services to the public.
This Agreement is not intended and shall not be construed to prevent Royal Street from offering PCS
Service on a retail basis. Royal Street shall ensure that the reserved percentage of the capacity
is available for Other Royal Street Customers. The Parties agree to negotiate in good faith on the
terms and conditions, including price, under which MetroPCS shall, upon request of Royal Street,
provide support services on commercially reasonable terms with respect to Royal Street provision of
capacity to such Other Royal Street Customers, provided that the price agreed to shall not exceed
***.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
9
ARTICLE III
SERVICE AND SUPPORT OBLIGATIONS OF METROPCS
3.1
General
MetroPCS shall upon the request of Royal Street, in accordance with directions and guidance
from Royal Street and subject to the limitations on MetroPCSs authority described in ARTICLE II,
assist Royal Street in the construction and operation of the Royal Street Systems. To this end,
MetroPCS shall, upon request, assist Royal Street by providing or arranging for: (i)
administrative, accounting, billing, credit, collection, insurance, purchasing, clerical and such
other general services as may be necessary to administer the Royal Street Systems; (ii)
operational, engineering, maintenance, repair and such other technical services as may be necessary
to operate the Royal Street Systems; and (iii) if requested by Royal Street in accordance with
Section 2.2 (a)(iv), assistance in the preparation of filings with regulatory authorities. Royal
Street shall compensate MetroPCS for its services in accordance with the terms of ARTICLE X of the
Agreement.
3.2
Specific Responsibilities
MetroPCS shall, upon request of Royal Street, in accordance with directions and guidance from
Royal Street and the Royal Street-approved Business Plan and Annual Budgets and subject to the
limitations on MetroPCSs authority described in ARTICLE II, assist Royal Street in supervising,
directly or through agents or subcontractors, day-to-day operations of the Royal Street Systems, and
such additional activities integral to the operation of the Royal Street Systems such as:
|
(a)
|
|
negotiating, as agent for Royal Street, such agreements as may be necessary
for the provision of services, supplies, office or other types of space, utilities,
insurance, concessions and the like;
|
|
|
(b)
|
|
constructing the Royal Street System in accordance with the Technical
Services Plan to be developed by Royal Street;
|
|
|
(c)
|
|
maintaining the Royal Street Systems and monitoring the performance of the
Royal Street Systems in accordance with MetroPCSs established procedures and
practices;
|
|
|
(d)
|
|
implementing roaming agreements; and
|
|
|
(e)
|
|
at Royal Streets request assisting Royal Street in accordance with Section
2.2(a)(iv) in the preparation of filings, applications, reports and other matters with
Governmental Entities.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
10
ARTICLE IV
ASSISTANCE OF METROPCS IN PREPARING
BUDGETS AND BUSINESS PLANS
4.1
General
|
(a)
|
|
In developing the Royal Street Systems and the related Annual Budgets, Royal
Street intends to establish Royal Street Systems capable of providing service of high
quality that are fully competitive with any other provider of like Commercial Mobile
Radio Service in each Market.
|
|
|
(b)
|
|
In connection with the development of the Business Plan and Annual Budgets,
Royal Street shall inform MetroPCS of the nature and type of services that the Royal
Street Systems shall offer, the terms upon which such services shall be offered, and
the prices to be charged with respect to such services.
|
|
|
(c)
|
|
The services provided by MetroPCS to Royal Street under this Agreement are
based upon Royal Streets intention to provide wholesale carrier-to- carrier services
rather than retail carrier-to-end user services. If the Management Committee decides
to provide retail services to the public, the Parties shall, upon request of Royal
Street, negotiate in good faith to modify the services provided by MetroPCS
accordingly.
|
4.2
Support With Annual Budgets
Upon request of Royal Street, MetroPCS shall provide the Budget Officer with information
useful in his preparation of the initial Annual Budget and subsequent Annual Budgets including, but
not limited to, reports, data and other information.
4.3
Support With Business Plans
Upon request of Royal Street, MetroPCS shall provide the Planning Group with information
useful in the preparation of the Royal Street Business Plan including, but not limited to, reports,
data, and other information.
ARTICLE V
TECHNICAL ASSISTANCE TO BE OFFERED BY METROPCS
5.1
Build-Out
|
(a)
|
|
Within thirty (30) days of the release of the Public Notice by the
FCC announcing that Royal Street is the Successful Bidder for any license
issued pursuant to Auction No. 58, Royal Street and MetroPCS shall
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
11
|
|
|
endeavor to meet to discuss plans for the construction of the system or systems that the
FCC has announced will be awarded to Royal Street. The Management Committee shall select a
group of officers and management level persons, (the Construction Group), to develop in
accordance with the directions provided by the Management Committee, a schedule for the
construction and installation of the Royal Street Systems in each of the Markets in which
Royal Street is the Successful Bidder, provided that the majority of such persons are
employees of Royal Street or representatives of C9 Wireless and not employees or
representatives of the MetroPCS Parties. Upon the request of Royal Street, MetroPCS shall
provide information to the Construction Group that may
be
helpful in its preparation of
such schedule including, but not limited to, reports and data. The schedule shall include
(i) the order in which each of the Markets in which Royal Street is the Successful Bidder
will be built and (ii) the date by which the Markets will be ready for testing and ready
for service (Construction Schedule). The Construction Schedule shall include appropriate
benchmarks for completion of the construction in each of the Markets in which Royal Street
is the Successful Bidder, but in all events, each of those Markets shall be Built-Out in a
timely fashion as may be required by the FCC rules such that no License is subject to being
reclaimed by the FCC and no penalties may be imposed on Royal Street.
|
|
|
(b)
|
|
As promptly as practicable after receipt of the Construction Schedule, the Management
Committee shall review the Construction Schedule and approve, modify or return the Schedule to
the Construction Group for modification in accordance with the Management Committees
direction. The Construction Group shall revise the Construction Schedule in accordance with
the Management Committees directions.
|
|
|
(c)
|
|
Upon approval of the Construction Schedule, the Construction Group shall develop a
Construction Plan for each Market, which shall set forth the plans for construction of the
specific Market, including (i) the location of the proposed Cell Sites, (ii) the vendors for
switches and base stations, and the facilities and vendors to be used to interconnect the Cell
Sites, (iii) the budget for the construction and implementation, (iv) the manner in which the
system will be interconnected to the landline telephone network, and (v) such other
specifications as the Construction Group may include (the Construction Plan). Royal Street
may, in its sole discretion, request that MetroPCS provide information to the Construction
Group that may be useful in its preparation of the Construction Plan. The Construction Plan
for each Market shall be submitted to the Management Committee for its approval in sufficient
time for construction of the system in that Market to be completed in accordance with the
Construction Schedule.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
12
|
(d)
|
|
The Management Committee shall review the Construction Plan as promptly as is
practicable after receipt, and approve, modify or return the Plan to the Construction
Group for modification in accordance with the Management Committees direction. The
Construction Group shall resubmit promptly thereafter any returned Proposal to the
Management Committee for approval. As promptly as practicable following receipt of the
revised Construction Plan, the Management Committee shall approve or modify the Plan and
may direct MetroPCS to implement the Construction Plan as specified by the Management
Committee.
|
|
|
(e)
|
|
The Construction Plan will implement a technical services plan (the Technical Services
Plan) to be developed by the Construction Group and the Management Committee. Based upon the
independent technology platform assessment conducted by Royal Street and Royal Streets
business determination that it is in its interest to maintain nationwide compatibility and
interoperability with other systems owned or operated by MetroPCS, the Plan will be designed
to maximize the benefits that Royal Street and MetroPCS, collectively, may obtain from the
other CMRS systems owned, controlled or operated by MetroPCS. To that end, the Parties agree,
subject to the understandings reflected in this Section 5.1, to cooperate to assure technical
and operational compatibility between the Royal Street Systems and the CMRS systems owned,
controlled or operated by MetroPCS with respect to the following matters, among others:
|
|
(i)
|
|
The technology-based platforms of the Royal Street Systems will be
compatible and interoperable with those of MetroPCS, as the Parties may specify in
each Market, in order to permit nationwide, and where appropriate, worldwide roaming
among the systems;
|
|
|
(ii)
|
|
The Royal Street Systems will be capable of offering subscribers and
roamers with the services, features, and functions offered by the CMRS systems owned,
controlled or operated by MetroPCS that use the same technology,
i.e.
CDMA;
|
|
|
(iii)
|
|
To the extent technically feasible, the digital technology standards
used by the Royal Street Systems will permit seamless interoperation and roaming with
the digital systems owned, controlled or operated by MetroPCS; and
|
|
|
(iv)
|
|
The Royal Street Systems will satisfy all applicable construction
and other service requirements imposed by the FCC.
|
|
(f)
|
|
The Technical Services Plan also will address matters related to
interconnect fees and standards for coverage, quality of coverage, dropped calls, customer
service and reliability.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
13
|
(g)
|
|
Upon request of Royal Street, MetroPCS will assist in the construction
and installation of the Royal Street Systems to be deployed in the Markets in which
Royal Street is the Successful Bidder. MetroPCSs performance shall be subject to
review, oversight and direction of the Management Committee.
|
|
|
(h)
|
|
In order to permit Royal Street to have the benefit of MetroPCS
discounts from vendors of telecommunications infrastructure, and in order to enhance
the purchasing power of MetroPCS with vendors by increasing the volume of the MetroPCS
purchases from the vendors, the Equipment and Facilities required by Royal Street to
operate the Royal Street Systems in accordance with the Business Plan shall, at Royal
Streets request, be acquired by MetroPCS and leased to Royal Street pursuant to a
Master Equipment and Facilities Lease Agreement substantially in the form of Appendix
A hereto. The terms of the Master Equipment and Facilities Lease Agreement shall be
commercially reasonable taking into consideration the useful life of the leased
equipment, its salvage value at the end of the lease term, and the parties
expectation that MetroPCS ***.
Notwithstanding the fact that Royal Street is the lessee rather than the beneficial
owner of the Equipment and Facilities, Royal Street shall have Unfettered Access to
the Equipment and Facilities at all times.
|
5.2
Telephone Numbers
|
(a)
|
|
MetroPCS shall, upon Royal Streets request, assist Royal Street in acquiring
telephone numbers for any PCS Service that Royal Street sells to MetroPCS and
programming such telephone numbers into the appropriate switch. Except as may
otherwise be agreed to by the Parties pursuant to Section 2.5 of this Agreement,
MetroPCS shall have no responsibility for assisting Royal Street in acquiring
telephone numbers for any PCS Service that Royal Street sells to any Other Royal
Street Customer.
|
|
|
(b)
|
|
MetroPCS shall, upon Royal Streets request, program the switches and take
other reasonably necessary actions to permit Other Royal Street Customers to utilize
numbers with NXX Codes assigned to Royal Street or the Other Royal Street Customers in
the Market.
|
|
|
(c)
|
|
The PCS Service that Royal Street provides in the Markets shall permit each
telephone number to be associated with only one handset, unless Royal Street and
MetroPCS otherwise agree.
|
|
|
(d)
|
|
MetroPCS shall assist Royal Street to activate a telephone number of any
retail or wholesale customer of any Other Royal Street Customers upon a written
request made by Royal Street. MetroPCS shall fulfill orders to
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
14
|
|
|
activate numbers for any Other Royal Street Customer in accordance with the same
performance metrics as MetroPCS employs for fulfilling its own orders.
|
|
|
(e)
|
|
If Royal Street desires to modify or terminate PCS Service to a
telephone number assigned to one of its Other Royal Street Customers, Royal Street
shall provide MetroPCS written or electronic notice, in accordance with such
procedures as the Parties may adopt. If Royal Street reasonably believes that the
telephone number is being used fraudulently or that the handset has been lost or
stolen and electronic notification systems have not been deployed by the Parties to
effect terminations, Royal Street may provide MetroPCS with oral notice of
termination, which shall be confirmed in writing within the earlier of four (4) hours
during normal business hours or twelve (12) hours during other times. MetroPCS shall
modify or terminate service to the notified number as quickly, on average, as it would
do so for itself or any third party, on average, but in any event within the earlier
of four (4) hours during normal business hours or twelve (12) hours during other
times, after receipt of the notice. Notwithstanding the foregoing, Royal Street shall
remain responsible, financially and otherwise, for its Other Royal Street Customers
until the modification or termination of service is complete.
|
5.3
Reciprocal Roaming Arrangements
|
(a)
|
|
Upon request, MetroPCS will make commercially reasonable efforts to help
Royal Street in reaching roaming arrangements that are commercially reasonable and no
less favorable than those offered to or received from similarly situated carriers.
|
|
|
(b)
|
|
Upon request, MetroPCS will make commercially reasonable efforts to help
Royal Street become a party to roaming arrangements between MetroPCS and other
wireless telecommunications carriers as long as MetroPCS retains an equity interest in
Royal Street.
|
5.4
Interconnection Agreements
|
(a)
|
|
At Royal Streets request and subject to its approval, MetroPCS will
negotiate on behalf of Royal Street interconnection agreements with the local
exchange carriers in each of the Markets in which Royal Street acquires a license
that will assure interconnection to the landline telecommunications network on
terms and conditions that are at least comparable to those obtained by other
similarly situated CMRS operators in the Market. At Royal Streets request,
MetroPCS shall administer the interconnection agreement on behalf of Royal Street
and negotiate such modifications or other arrangements for interconnection as the
Management Committee may direct.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
15
|
(b)
|
|
At Royal Streets request, where a Royal Street System is in a Market in
which MetroPCS owns or operates another CMRS system, MetroPCS shall, to the extent
possible and necessary, arrange for the modification of MetroPCSs interconnection
agreements with the local exchange carrier to include the Royal Street System
managed by MetroPCS in those interconnection agreements.
|
5.5
Interexchange Service
|
(a)
|
|
MetroPCS will make commercially reasonable efforts to negotiate with
other providers at Royal Streets request, and obtain on behalf of Royal Street
interexchange telecommunications services for Royal Street and for resale to its
customers which will permit Royal Street to offer interexchange telecommunications
services that are competitive with the interexchange telecommunications of other CMRS
providers in the Market. Any agreements to obtain interexchange telecommunications
services shall be approved by Royal Street prior to their execution.
|
ARTICLE VI
OTHER UNDERSTANDINGS
6.1
Service Interruptions
The Parties agree and acknowledge that, given the complex nature of the Royal Street Systems,
service interruptions may occur. The Parties shall use their best efforts to avoid any unnecessary
service interruptions and to work with each other to plan and coordinate necessary service
interruptions so as to minimize disruptions to their customers.
6.2
Customer Relations
Each Party shall be responsible for its dealings with its customers and shall act in a manner
consistent with the highest standards of honesty, integrity and fair dealings and shall not do
anything that would discredit, dishonor, reflect adversely upon or in any manner injure the
reputation of the other Party or its Affiliates. Each Party shall refrain, and shall cause its
agents to refrain, from any business practices or promotional activity which may be injurious or
detrimental to the other Party or its Affiliates,
provided, however,
that nothing in this Section
shall be construed to limit each Partys ability to compete freely with the other to the extent
that MetroPCS and Royal Street are providing competing services.
6.3
Calling Plans
At Royal Streets request, MetroPCS shall research and inform Royal Street of any national or
other wide area service plans that Royal Street may choose to offer in its
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
16
markets. Royal Street, at its sole discretion, shall decide whether to cause the Royal Street
Systems or a portion of them to participate in any such plans.
6.4
Performance Standards
At Royal Streets request, MetroPCS shall assist Royal Street in developing performance
standards that satisfy the service objectives set by Royal Street for the Royal Street Systems,
with the understanding that Royal Street intends the quality of the products and services offered
by Royal Street to be at least as high as the quality of similar products and services provided by
a majority of the CMRS systems owned, controlled or operated by MetroPCS modified or adjusted as
appropriate for the specific Markets in which Royal Street is the Successful Bidder. Royal Street
may review and adjust these performance standards periodically so that the Royal Street Systems
remain competitive with other CMRS operators in the Market and nationwide.
ARTICLE VII
REPORTS AND AUDITS
7.1
Alarm Monitoring and Reports
Upon the request of Royal Street, MetroPCS shall monitor the performance of the Royal Street
Systems and shall provide Royal Street periodically, in accordance with such procedures normally
employed by MetroPCS with respect to its CMRS Systems, unless modified by the Parties, a list of
alarms and outages. Upon the request of Royal Street, MetroPCS shall respond to any alarm affecting
Royal Streets PCS Service in accordance with such procedures as the Parties may agree upon from
time to time consistent with the performance metrics applicable to the Royal Street Systems.
7.2
Traffic Reports
Upon the request of Royal Street, MetroPCS shall provide Royal Street with monthly reports for
the Royal Street Systems with such operational data and details as Royal Street may request. Those
reports may include such operational data and details as are customarily maintained in the ordinary
course of a PCS business and will permit Royal Street reasonably to evaluate the quality of the
Royal Street Systems and the accuracy of the charges assessed.
7.3
Billing Information
Upon the request of Royal Street, MetroPCS shall provide Royal Street, at least once per
calendar month on such date as the Parties may agree, detailed call data information in the same
standard electronic format as MetroPCS employs for the MetroPCS CMRS System and as may be
reasonably necessary for Royal Street to issue bills for services to its Other Royal Street
Customers in the Market. Royal Street shall bear the costs of billing its subscribers, including
any costs of converting call data
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
17
information provided by MetroPCS into bills. Upon request of Royal Street, MetroPCS will negotiate
in good faith with Royal Street to provide billing support services on commercially reasonable
terms for the Other Royal Street Customers, provided that the price
agreed to shall not exceed ***.
ARTICLE VIII
METROPCSS PERSONNEL
8.1
General
|
(a)
|
|
Subject to Section 8.1(c), MetroPCS shall designate one or more employees who
are experienced in the construction and operation of CMRS systems to serve as the
point or points of contact responsible for the performance of MetroPCSs functions
under this Agreement with respect to all the Royal Street Systems or a specific Royal
Street System for each or several Markets (the Systems Contact), and may change
these individuals at its discretion and upon written notice to Royal Street.
|
|
|
(b)
|
|
MetroPCS shall provide Royal Street, upon the Effective Date and on such
periodic basis thereafter as Royal Street may reasonably request, a list of the
individuals employed by MetroPCS in management and supervisory positions in connection
with the services provided in connection with the Royal Street Systems, and shall
provide Royal Street any such information as Royal Street may reasonably require
concerning their qualifications to perform the functions assigned.
|
|
|
(c)
|
|
Subject to Applicable Law, Royal Street shall have the right to require, upon
reasonable notice, (i) the replacement of any Systems Contact for any Royal Street
System, or (ii) the reassignment of any MetroPCS employee assigned to work on any
Royal Street System such that the employee no longer works on any Royal Street System.
|
|
|
(d)
|
|
MetroPCS shall provide Royal Street with its personnel policies, which
policies shall include reasonable provisions to assure the honesty, integrity and
character of all of the personnel that MetroPCS assigns to perform its
responsibilities under this Agreement, and shall make such reasonable changes and
modifications in those policies with respect to the Royal Street Systems as Royal
Street may request.
|
8.2
Independent Contractors
Upon prior written notice to Royal Street given in sufficient time and detail to allow Royal
Street to object, MetroPCS may engage qualified Independent Contractors to perform specific
services, necessary to construct, maintain, and operate the Royal Street
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
18
Systems. Notwithstanding the foregoing and subject to Applicable Law, Royal Street shall have the
unfettered right, to require that MetroPCS discharge any Independent Contractor performing services
under this Agreement, or to bar MetroPCS from hiring any specific Independent Contractor to perform
services under this Agreement. Royal Street shall indemnify MetroPCS for any wrongful discharge of
an Independent Contractor engaged without objection from Royal Street following proper notice from
MetroPCS in accordance with this Section 8.2, and Royal Street shall, in these circumstances, bear
any costs or expenses lawfully charged by such Independent Contractor associated with such
termination.
ARTICLE IX
APPROVALS
9.1
Royal Street Supervisor
In order to facilitate Royal Streets oversight, supervision and ultimate control of the Royal
Street Systems, Royal Street specifies its Chief Executive Officer as the individual to whom
MetroPCS shall report and request approvals required under this Agreement, unless the CEO delegates
such responsibility to another officer or employee of Royal Street. Royal Street may change these
individuals at any time by prior written notice to MetroPCS. Where the CEO delegates the
responsibilities under this Section 9.1 to another officer or employee, MetroPCS may rely on any
approvals or consents given by such delegatee.
9.2
Time Schedule for Approval
|
(a)
|
|
Royal Street shall notify MetroPCS in writing as soon as practicable, after
Royal Street receives a request for an approval required to be obtained under this
Agreement, whether Royal Street approves or disapproves the request. Any disapproval
shall include an explanation why Royal Street has rejected the recommendation such
that MetroPCS may address Royal Streets concerns.
|
|
|
(b)
|
|
Royal Street acknowledges that time may be of the essence in connection with
certain filings, including FCC applications, reports and other filings, and hereby
covenants and agrees that it will exercise appropriate diligence to prepare, execute
and file FCC applications and reports in a timely fashion and that the CEO or his
delegatee will be available to consult with and assist MetroPCS in connection with any
such applications, reports, and other filings which Royal Street has requested in
writing that MetroPCS assist Royal Street to prepare.
|
9.3
Failure to Approve
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
19
|
(a)
|
|
In the event that a request of MetroPCS for approval is time sensitive, has not
been acted upon by Royal Street on a timely basis, and the failure to act may have
an adverse effect on the business, MetroPCS may so notify Royal Street and request
that Royal Street act upon the request for approval within a specified time frame
that is reasonably related to the deadline. Any such MetroPCS request under this
section that Royal Street act within a specified time frame shall be in writing.
|
|
|
(b)
|
|
MetroPCS shall be indemnified and held harmless with respect to any damages
or injury resulting from the failure of Royal Street to act in a timely manner upon a
request of MetroPCS for approval, provided that Royal Street has actual notice of the
time sensitive nature of the request.
|
ARTICLE X
COMPENSATION TO METROPCS
10.1
Reimbursement
Except as provided in Section 10.1(c), Royal Street shall reimburse MetroPCS at cost for all
expenses reasonably incurred by MetroPCS in the performance of its responsibilities under this
Agreement which are agreed by the Parties to be Out-of-Pocket Expenses (Out-of-Pocket Expenses).
|
(a)
|
|
Out-of-Pocket Expenses include, but are not limited to, costs incurred by
MetroPCS in the execution and fulfillment of its obligations under this Agreement,
such as: (i) administrative, accounting, billing, credit, collection, insurance,
purchasing, clerical and such other general services as may be necessary to administer
the Royal Street Systems; (ii) operational, engineering, maintenance, repair and such
other technical services as may be necessary to operate the Royal Street Systems;
(iii) occupancy; (iv) the salary and associated expenses of the Systems Contact of any
Royal Street System to the extent their services relate to the construction and
operation of the Royal Street System as provided in Section 8.1(a); (v) Independent
Contractors; and (vi) MetroPCSs non- managerial and non-supervisory employees. A more
specific categorization of Out-of-Pocket Expenses, including which categories of
employees are non-managerial and non-supervisory, shall be set forth in the Annual
Budget.
|
|
|
(b)
|
|
With respect to costs of services for non-managerial and non-supervisory
employees of MetroPCS who devote a portion, but not all, of their time to performing
MetroPCSs obligations under this Agreement, such costs shall
include ***. Such costs shall be calculated at hourly rates determined on
the basis of the individual
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
20
|
|
|
employees annual salaries, taxes, insurance and benefits, plus an additional
*** of those amounts to cover administrative overhead and other
compensation associated with such employees.
|
|
|
(c)
|
|
The Parties acknowledge and agree that MetroPCS is not obligated to
provide at cost under this Agreement the additional services in support of Other
Royal Street Customers that are contemplated by Section 2.5. Rather, MetroPCS shall
be obligated to provide such services, upon request, ***.
|
10.2
Support Services Fees
|
(a)
|
|
Subject to such adjustments negotiated by the Parties in good faith as may be
appropriate in light of the number of Licenses (if any) that Royal Street may acquire
and the amount of spectrum represented by such Licenses and in addition to
Out-of-Pocket Expenses, Royal Street shall pay MetroPCS an additional services fee
(the Support Services Fee) for the performance of its responsibilities under this
Agreement in an amount equal to *** (collectively, the Monthly Fee)
beginning with the License grant date and continuing up to the commencement of Support
Services, at which time the Support Services Fee shall become the greater of the
Monthly Fee or ***.
|
|
|
(b)
|
|
The Support Services Fee shall be payable in equal monthly installments due
on the last business day of each month beginning on the License grant date.
|
|
|
(c)
|
|
The Parties will review the Support Services Fee specified in Section 10.2(a)
after the close of Auction No. 58 with a view to revising the fee, as may be
appropriate, in light of the results of the auction. Among the factors to be
considered with respect to any adjustment in the Support Services Fee are the number
of Markets in which Royal Street is the Successful Bidder, the number of POPs and the
amount of spectrum involved, the number of Markets acquired by Royal Street in which
MetroPCS owns or operates CMRS systems and the number of Markets in which MetroPCS
does not own or operate such systems.
|
10.3
Offsets
Each Party agrees that notwithstanding anything contained herein to the contrary, the other
Party may offset any amounts due from such other Party, or its Affiliates, with any amounts due to
such other Party, or its Affiliates.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
21
ARTICLE XI
ROYAL STREET PROVISION OF
WHOLESALE SERVICES TO METROPCS
11.1
Coordination of System Capacity
The Parties shall consult, in connection with Royal Streets budgeting and business planning
process or such other processes as the Parties may mutually adopt, so that the Royal Street Systems
have sufficient capacity to meet, to the extent commercially reasonable, both MetroPCSs
projections of its demand for Wholesale Service from Royal Street and Royal Streets projections of
its demand for services from Other Royal Street Customers. The Parties shall, in developing these
plans for each Market, consult to avoid building excessive capacity in any Market.
11.2
Expansion of System Capacity
The Parties shall consult, in connection with Royal Streets budgeting and business planning
process or such other processes as the Parties may adopt, with respect to the expansion of the
Royal Street Systems capacity in any Market in order to meet the reasonable projected demands of
Royal Street. Where Royal Street reasonably believes that, when taking into account the Wholesale
Commitment, its needs for Other Network Service in any Market will exceed the capacity of the
existing or planned network, whether because of volume constraints, location, or otherwise,
MetroPCS shall, upon request of Royal Street, take commercially reasonable steps to provide such
additional Equipment and Facilities as is necessary to meet such projected demand and to provide
such Equipment and Facilities to Royal Street ***. For the purpose of
this Section 11.2, the provision of such additional Equipment
and Facilities on terms ***.
11.3
Allocation of Capacity
The Parties shall cooperate in the development of a network plan for each Market that will
enable MetroPCS to utilize *** of the System Capacity of each Royal Street
System in each Market in which Royal Street has commenced providing (or has commenced planning in
connection with the budgeting and business planning process to provide) PCS Service, as those Royal
Street Systems may be expanded from time to time (Wholesale Commitment). Royal Street will retain
the right to utilize *** of the System Capacity in each Market, as those Royal
Street Systems may be expanded from time to time, to provide Wholesale Services to carriers other
than MetroPCS, or if authorized by the Management Committee, retail services to Other Royal Street
Customers.
11.4
Royal Streets Right to Sell Wholesale PCS Service
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
22
Subject to Royal Streets meeting the Wholesale Commitment, nothing in this Agreement shall
preclude Royal Street from selling Wholesale Service in any Market to Other Royal Street Customers;
provided, however, that prior to Royal Street offering Wholesale Services in any Market to Other
Royal Street Customers, Royal Street and MetroPCS shall enter into a technical capacity sharing
agreement specifying how the Parties will utilize their respective capacity of the Royal Street
Systems without interfering with the other Partys right to the capacity set forth in Section 11.3.
11.5
Royal Street Responsibility for Royal Street Customers
Royal Street shall be solely responsible for relations, financial and otherwise, with its
Other Royal Street Customers, including sole responsibility for any and all payments due from such
Other Royal Street Customers. Upon activation of any telephone number for such Other Royal Street
Customers and until the earlier of four (4) hours after receipt by MetroPCS during normal business
hours, or twelve (12) hours after receipt during other times, of notice from Royal Street to
discontinue the provision of PCS Service to that telephone number, Royal Street shall be solely
responsible for any and all fees or charges associated with that telephone number, including, but
not limited to, any fixed or recurring charges for roamer charges, toll charges, directory
assistance and operator charges and any charges occasioned by a fraudulent use. Nothing in this
Agreement shall create any contractual or other obligation on the part of MetroPCS to any Other
Royal Street Customer or for MetroPCS to provide any services to Royal Street to support such Other
Royal Street Customers.
11.6
MetroPCS Responsibility for MetroPCS Customers
MetroPCS shall be solely responsible for relations, financial and otherwise, with its
customers, including sole responsibility for any and all payments due from such customers. Upon
activation of a telephone number by MetroPCS and until the discontinuance of the provision of PCS
Service to that telephone number, MetroPCS shall be solely responsible for any and all fees or
charges associated with that telephone number, including, but not limited to, any fixed or
recurring charges for Wholesale Services, roamer charges, toll charges, directory assistance and
operator charges and any charges occasioned by a fraudulent use. Nothing in this Agreement shall
create any contractual or other obligation on the part of Royal Street to any customer of MetroPCS.
ARTICLE XII
FEES FOR WHOLESALE SERVICE
12.1
Wholesale Services Fees
Subject to such adjustments negotiated by the Parties in good faith as may be appropriate in
light of the number of Licenses (if any) that Royal Street may acquire and the amount of spectrum
represented by such Licenses, MetroPCS shall pay Royal Street on a monthly basis the fees set forth
in Appendix B for the MetroPCS Wholesale
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
23
Services (the MetroPCS Wholesale Services Fees). Unless otherwise agreed by the Parties, the
MetroPCS Wholesale Services Fees shall commence in each Market as of
***. The
fees set forth in Appendix B shall, unless otherwise adjusted by mutual consent of the Parties,
remain in effect for an initial period of ***. After that initial period, the fees will
be reviewed during Royal Streets annual budgeting process and may be adjusted to reflect changes
in wholesale wireless capacity pricing in comparable markets,
provided, however,
that the MetroPCS
Wholesale Services Fees shall not be adjusted more than once during
each successive *** period and may not be increased by more than ***.
12.2
Fees Exclusive of Taxes and Other Assessments
The MetroPCS Wholesale Services Fees are exclusive of any applicable Taxes (other than general
income or property taxes), whether charged to or against MetroPCS or Royal Street, associated with
MetroPCS Wholesale Services. All such Taxes shall be in addition to all other charges provided for
under this Agreement.
12.3
Most Favored Nation.
Royal Street agrees that it shall offer to
provide Wholesale Services to MetroPCS on a most
favored nation basis. ***
ARTICLE XIII
PAYMENT PROCEDURES
13.1
Wholesale Services Payment Procedures
Royal Street shall provide MetroPCS with a monthly invoice for all fees due under this
Agreement not later than the thirtieth (30
th
) day after the monthly billing cycle in
which the usage is recorded. Such invoice shall be due and payable within thirty (30) days after
receipt of the invoice. Any undisputed amount not paid by the due date will bear interest at the
lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by Applicable
Law.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
24
13.2
MetroPCS Support Services Payment Procedures
MetroPCS shall provide Royal Street with a monthly invoice for all service fees due to
MetroPCS under this Agreement not later than the thirtieth (30
th
) day after the close of
each month. Such invoice shall be due and payable within thirty (30) days after receipt of the
invoice. Any undisputed amount not paid by the due date will bear interest at the lesser of one and
one-half percent (1.5%) per month or the maximum rate permitted by Applicable Law.
13.3
Out-Of-Pocket Expenses
Following the Effective Date, MetroPCS shall, within thirty (30) days of the last day of each
month in which the Agreement is in effect, provide to Royal Street a statement of Out-of-Pocket
Expenses incurred during that month, together with such documentation for the Out-of-Pocket
Expenses as Royal Street may reasonably request. In addition, within thirty (30) days of the last
day of each month in which the Agreement is in effect, MetroPCS shall provide to Royal Street a
statement of total receipts for the Royal Street Systems during that month. Such invoice shall be
due and payable within thirty (30) days after receipt of the invoice.
13.4
Disputes
If either Party disputes the amount of an invoice, it shall notify the other Party in writing
before payment is due, and if the matter cannot be resolved informally between the Parties, either
Party may invoke the dispute resolution provisions referenced in ARTICLE 17 of the LLC Agreement.
13.5
Suspension of Services
If either Party does not receive payment in full of undisputed amounts from the other Party
within sixty (60) days following the due date for any payment, the unpaid Party shall have the
right, in addition to whatever other rights it may have under this Agreement or at law and in
equity, to suspend its provision of all or any portion of the services for which it has not been
paid on ten (10) days written notice, except that neither Party shall have the right to suspend
service under this Section 13.5 if the failure to pay is attributable to any act or omission of the
unpaid Party.
13.6
Audits
Where either Party believes that the other Party has improperly charged it under this
Agreement, the charged Party shall have the right, if the Parties cannot resolve the matter
amicably without resort to the dispute resolution provisions in this Agreement, to request (but not
more than once per calendar year) an independent audit of the applicable books and records to
verify the accuracy of the charges assessed. The Parties shall appoint an independent auditor
mutually agreeable to both Parties and shall specify the scope and define the terms of the
auditors engagement. Royal Street shall reasonably
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
25
cooperate with the auditor and its representatives in connection with any audit, providing
reasonable access to any and all relevant books and records and causing its employees, accountants
and other representatives and agents to cooperate with the auditor. The cost of the audit shall be
borne by the charged Party unless the audit indicates that the charging Party has overcharged the
charged Party by more than five percent (5%) of the total dollar amount of billings covered by the
audit, in which event, the charging Party shall pay for the audit and shall give the charged Party
a credit in the amount of any overcharge.
ARTICLE XIV
APPLICABLE TAXES
14.1
Payment of Taxes
Except as otherwise provided in this Agreement, each Party shall be fully responsible for
calculating and remitting any Taxes that Applicable Law requires such Party to pay, including
filing all returns, submitting such information as Applicable Law may require and responding to
inquires concerning such Taxes (Remitting).
14.2
|
|
Taxes on Royal Streets Lease of Equipment and Facilities and MetroPCSs Provision
of Services
|
|
(a)
|
|
MetroPCS shall be responsible for Remitting any Taxes imposed in connection
with MetroPCSs receipt of payments from Royal Street for the lease of Equipment and
Facilities and MetroPCSs provision of services.
|
|
|
(b)
|
|
Royal Street shall pay to MetroPCS an amount equal to all Taxes that MetroPCS
is required to Remit in connection with Royal Streets lease of Equipment and
Facilities and MetroPCSs provision of services (other than general income or property
taxes). MetroPCS shall state all such Taxes as separate items on its invoices and
shall indicate the jurisdiction imposing the Taxes.
|
|
|
(c)
|
|
Royal Street shall not be required to pay to MetroPCS any Tax described in
this Section if Royal Street provides MetroPCS with a certificate evidencing exemption
from payment for liability for such Tax. If Applicable Law provides an exemption from
any Tax described in this Section, but does not also provide a procedure for issuing
exemption certificates, then MetroPCS shall not collect such Tax if Royal Street
furnishes MetroPCS a letter from an officer, a senior level management official of
Royal Street or outside counsel describing the exemption, identifying the provision of
Applicable Law that both allows such exemption and does not provide for an exemption
certificate, and
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
26
certifying that Royal Street has complied with the requirements of Applicable
Law in order to avail itself of the exemption.
14.3
Taxes on MetroPCSs Purchase of MetroPCS Wholesale Services
|
(a)
|
|
Royal Street shall be responsible for Remitting any Taxes imposed in
connection with Royal Streets receipt of payments from MetroPCS for MetroPCS
Wholesale Services.
|
|
|
(b)
|
|
MetroPCS shall pay to Royal Street an amount equal to all Taxes that Royal
Street is required to Remit in connection with MetroPCSs purchase of MetroPCS
Wholesale Services (other than general income or property taxes). Royal Street shall
state all such Taxes as separate items on its invoices and shall indicate the
jurisdiction imposing the Taxes.
|
|
|
(c)
|
|
MetroPCS shall not be required to pay to Royal Street any Tax described in
this section if MetroPCS provides Royal Street with a certificate evidencing exemption
from payment for liability for such Tax. If Applicable Law provides an exemption from
any Tax described in this section, but does not also provide a procedure for issuing
exemption certificates, then Royal Street shall not collect such Tax if MetroPCS
furnishes Royal Street a letter from an officer, a senior level management official of
MetroPCS or from outside counsel describing the exemption, identifying the provision
of Applicable Law that both allows such exemption and does not provide for an
exemption certificate, and certifying that MetroPCS has complied with the requirements
of Applicable Law in order to avail itself of the exemption.
|
14.4
Cooperation
The Parties shall cooperate with respect to any planning to minimize Taxes, and with respect
to any Tax audit, Tax controversy, Tax refund matter, claim, action or similar proceeding by a
Governmental Entity. The degree of cooperation contemplated by this Section is to enable any tax
inquiry or controversy to be resolved expeditiously and includes, but is not limited to, assisting
with responses to audit inquiries and producing documents and information. A Party receiving a Tax
audit inquiry from a Governmental Entity shall promptly notify the other Party. The Party Remitting
any Tax shall be responsible for managing any Tax audit associated with that Tax.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
27
ARTICLE XV
ACCOUNTING AND REPORTS
15.1
Books and Records
MetroPCS shall, upon request, provide to Royal Street on a timely basis such information
concerning the operation of the Royal Street Systems pursuant to the Agreement that is in its
possession and that will enable Royal Street to fulfill its duties with respect to the books and
records of the Royal Street Systems.
15.2
Meetings
Representatives of Royal Street and MetroPCS shall meet periodically to discuss the status of
the operation of the Royal Street Systems. During the first twelve (12) months after the Effective
Date, such meeting shall be held monthly; thereafter, such meetings shall be held at least every
other month. Such meetings may be conducted by teleconference.
15.3
Cooperation of MetroPCSs Employees
The employees of MetroPCS shall cooperate with and respond to any inquiries made by Royal
Streets designated representatives concerning the operation of the Royal Street Systems, and the
Systems Contact for each of the Royal Street Systems shall respond to directions from Royal
Streets designated representatives. In the event any Systems Contact for a Royal Street System
believes that the directions of Royal Streets representatives are not in the best interests of
Royal Street, the Systems Contact shall consult with Royal Streets CEO, or delegatee, in order to
resolve the matter. If they cannot resolve the matter, it shall be referred to the Management
Committee of Royal Street for resolution.
15.4
Taxes, Fees and Filings
Upon Royal Streets written request, MetroPCS shall provide Royal Street with reasonable
support in connection with the timely preparation of any Federal, state and local tax returns, and
any returns relating to other fees and assessments, including any fees imposed by the FCC, as well
as any applications and filings required to be submitted to the FCC. It being agreed and understood
that all filings by Royal Street with any Governmental Entity shall be made by Royal Street or C9
Wireless and not by MetroPCS on behalf of Royal Street.
ARTICLE XVI
TERM AND TERMINATION
16.1
Term
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
28
Subject to the termination
provisions set forth in Section 16.2, this Agreement shall have an
initial term commencing on the Effective Date and ending on ***. After the initial term, this Agreement will automatically
renew for successive *** terms on the same terms and conditions unless either Party gives
notice of its intention not to renew in accordance with this Section 16.1. Either Party must give
written notice of an intention not to renew no less than twenty-four (24) months prior to the end
of the initial term and no less than twelve (12) months prior to the end of a renewal term.
16.2
Termination
In addition to their other rights at law or equity, this Agreement may be
terminated in the following circumstances:
|
(a)
|
|
Either Party may terminate this Agreement:
|
|
(i)
|
|
on thirty (30) days written notice, if there has been
a material non-monetary breach of this Agreement by the non-terminating party
which has not been cured by the conclusion of the following dispute resolution
process:
|
|
(A)
|
|
The terminating party shall notify the
non-terminating party in writing (Breach Notice) of the events
which it reasonably believes constitute a material non-monetary
breach and representatives of the parties shall meet promptly in a
good faith effort to resolve the dispute in a mutually acceptable
fashion.
|
|
|
(B)
|
|
In the event the discussions between the
Parties required by Section 16.2(a)(i)(A) have failed to resolve the
dispute within 20 days, either of the Parties may request, in
writing, that such matter be referred to the CEO (or his or her
management level delegatee other than the representative previously
involved in the discussions) of each of the Parties for an
appropriate negotiated resolution. Upon such a request, the CEOs of
each of the Parties (or their delegatees) shall meet in a good faith
effort to resolve the dispute in a mutually agreeable fashion within
10 days following the referral to the CEOs.
|
|
|
(C)
|
|
In the event that the CEOs are unable to
resolve the dispute in accordance with the procedure contemplated by
Section 16.2(a)(i)(B), the terminating party may notify the
non-terminating party in writing (the Cure Notice) that the Breach
Notice remains unresolved and that the non-
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
29
|
|
|
terminating party has thirty (30) days to cure the alleged breach.
|
|
(ii)
|
|
on thirty (30) days notice if a party is in material default under any
monetary obligation of this Agreement and such non-terminating party has not cured
such monetary default within ten (10) days of written notice;
|
|
|
(iii)
|
|
on five (5) days written notice, in the event the non-terminating party:
(A) ceases to do business as a going concern; (B) is unable or admits in writing its
inability to pay its debts as they become due; (C) commences or authorizes a voluntary
case or other proceeding seeking liquidation, reorganization, suspension of payments
or other relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official in an involuntary
case or other proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or fails to pay a substantial portion of its debts as they
become due, or takes any corporate action to authorize any of the foregoing, is
insolvent, bankrupt or the subject of a receivership; or (D) has any substantial part
of its property subjected to any levy, seizure, assignment or sale for or by any
creditor or governmental agency without such levy, seizure, assignment or sale being
released, lifted, reversed or satisfied within ten (10) days; and
|
|
|
(iv)
|
|
in accordance with the provisions of Section 18.5.
|
|
(b)
|
|
Royal
Street may terminate this Agreement:
|
|
(i)
|
|
on thirty (30) days written notice in the event of an FCC Final
Order revoking, terminating or canceling any material License or refusing to
renew such License due to any act or omission by MetroPCS;
|
|
|
(ii)
|
|
In addition to its other rights at law and in equity, Royal Street may
terminate this Agreement on sixty (60) days written notice if MetroPCS deploys or
announces its intention to deploy equipment or facilities that will preclude Royal
Street from providing seamless and interoperable PCS Service in a Market, will cause
interference to the operation of the Royal Street System, or will materially degrade
the quality of Royal Street PCS Service.
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
30
|
(iii)
|
|
on five (5) days notice, if MetroPCS is found by the FCC in a
Final Order to lack the qualifications to be the licensee of a Commercial
Mobile Radio Service system;
|
|
(c)
|
|
Royal Street may terminate the Support Services at will on *** advance written notice and, upon the effective date of such termination, Royal
Street will be relieved of the obligation to pay the compensation to MetroPCS set
forth in Article X. The termination of Support Services pursuant to this paragraph
shall not alter the obligation of Royal Street to provide Wholesale Services to
MetroPCS pursuant to this Agreement.
|
Notwithstanding anything contained herein to the contrary, during any notice or cure period
provided in (a) through (c) above, both Parties shall continue to perform their obligations
hereunder.
16.3
Transition
|
(a)
|
|
After receipt of written notice of termination, but prior to the effective
date of such termination, the Parties hereby agree to cooperate in developing and
implementing an orderly and efficient transition plan of the termination on the
ability of end users to continue to receive uninterrupted service. The obligation to
cooperate during the transition shall not be construed to require either party of
continue to provide services for which the party is not being paid. Each party will
act in good faith to minimize any adverse effects associated with transition to a new
provider for the terminated services, including, among other things, (i) to provide
the new provider with such operational and other information as the new provider may
require, (ii) to provide the new provider access to the equipment and facilities,
(iii) to assist in the transfer of such data, including billing and operating
information, as may be reasonably necessary to permit the new provider to assume
operation of the systems, and (iv) otherwise assist in a reasonable manner in
effecting an orderly transition that will permit end users to continue receiving
quality service.
|
|
|
(b)
|
|
MetroPCS shall be entitled to all amounts accrued for Support Services Fees,
Out-of-Pocket Expenses, and any other charges for services related to Support Services
provided to Royal Street for Other Royal Street Customers pursuant to section 2.5 that
are due and payable prior to the effective date of termination, including expenses
incurred in connection with implementing the transition plan. Royal Street shall be
entitled to all amounts accrued for Wholesale Services Fees.
|
16.4
Remedies in Lieu of Termination
If MetroPCS fails to provide any of the services required under this Agreement and fails to
cure the non-performance within sixty (60) days after written notice of its
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
31
non-performance from Royal Street (Failed Services), Royal Street may, in addition to all other
remedies it may have under this Agreement or at law and in equity, take any and all action
necessary to cause the Failed Services to be performed, including retaining third parties to
provide the Failed Services, or otherwise. In that event, MetroPCS shall reimburse Royal Street any
and all reasonable charges, fees, costs and expenses incurred by Royal Street in obtaining the
Failed Services. In addition, MetroPCS shall refund to Royal Street any and all charges, fees,
costs and expenses paid to MetroPCS for performance of the Failed Services.
ARTICLE XVII
INTELLECTUAL PROPERTY AND TRADEMARKS
Nothing in this Agreement shall grant or convey to either Party any rights or
license under any present or future Intellectual Property or Trademarks disclosed or arising
pursuant to this Agreement.
ARTICLE XVIII
COMPLIANCE WITH LAWS
18.1
Compliance with the Communications Act
The Parties acknowledge that the activities and relationships addressed by this Agreement are
subject to Applicable Law, including without limitation the Communications Act and the regulations
promulgated by the FCC.
18.2
No Violation
Nothing in this Agreement will obligate a Party to take any action that violates Applicable
Law. In no event will a Party be obligated to perform any acts or to abstain from performing any
act if, in the Partys reasonable legal and/or business judgment, after consulting with the other
Party, performance or non-performance will violate the Act or any Applicable Law, any regulation,
Final Order or policy of the FCC, any antitrust laws or any other Federal or state law or
regulation.
18.3
Preservation of Control
Nothing in this Agreement permits, or will be deemed to permit, MetroPCS to exercise
de facto
or
de jure
control over Royal Street or its operations.
18.4
Regulatory Submissions
In the event that either Party reasonably concludes that it is necessary or advisable to file
this Agreement with a Governmental Entity or that a Governmental Entity is required to approve or
review this Agreement or the arrangement between the Parties, the
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
32
other Party will cooperate fully in the preparation and filing of any regulatory filings which may
be necessary or appropriate, including, without limitation, providing such information as may
reasonably be necessary or which is requested by the Governmental Entity. Where one Party believes
that information to be filed with a Governmental Entity is proprietary or sensitive business
information, the Parties will cooperate to obtain such confidential treatment from the Governmental
Entity as may reasonably be secured.
18.5
Modification or Amendment of this Agreement
In the event a Governmental Entity with jurisdiction over a Party or both Parties or over this
Agreement determines that one or more provisions of this Agreement are unlawful, contrary to public
policy or otherwise unenforceable, the Parties will negotiate in good faith to amend the Agreement
in order to comply with any such applicable regulatory requirements or policies while preserving
the business objectives of both Parties. In the event the Parties cannot reach agreement as to new
or revised provisions that will comply with the applicable regulatory requirements or policies and
preserve their business objectives, this Agreement will terminate upon ninety (90) days written
notice from one Party to the other, subject to the transition provisions of Section 16.3. Either
Party may, without the consent of the other Party, appeal or seek reconsideration of any decision
or Final Order which holds one or more provisions of this Agreement unlawful, contrary to public
policy or otherwise unenforceable, but such appeal or request for reconsideration will not affect
the obligations of the Parties under this Section to negotiate in good faith, unless a stay of the
decision or Final Order is obtained and the terms and conditions of the stay are acceptable to both
Parties. In such event, the obligations of the Parties to negotiate under this Section will attach
at such time as the stay is lifted and the adverse decision or Final Order is reinstated or becomes
effective or the stay is modified in a manner that a Party reasonably finds unsatisfactory.
ARTICLE XIX
INDEMNIFICATION
19.1
General
Each Party (the Indemnifying Party) will defend, indemnify and hold harmless the other
Party, including any of its Affiliates, officers, directors, shareholders, employees and agents
(the Indemnified Party), from and against any and all claims, damages, losses, liabilities
whatsoever, including reasonable legal fees and any damages, (Claims) arising out of, caused by,
related to or based upon a Claim (a) by a third party for physical property damage, personal
injury, or wrongful death, whether sounding in tort or contract, claim of defamation, invasion of
privacy or similar claim based on any act or omission of the other Party, its employees, agents or
contractors in connection with this Agreement, (b) that the Indemnifying Partys products or
services infringe or violate any copyright, trade secret, trademark or service mark, United States
patent or other proprietary right of a third party, or (c) that the claimant was slammed or
crammed,
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
33
as those terms are understood in the industry, except where such Claims arise out of the
willful misconduct, gross negligence or fraud of the Party seeking indemnification.
19.2
Indemnification Procedure
In any case under this Agreement where one party has indemnified the other against any Claim
or legal action, indemnification shall be conditioned on compliance with the procedure outlined
below:
|
(a)
|
|
Provided that prompt notice is given of a Claim or suit for which
indemnification might be claimed, unless the failure to provide such notice does not
actually and materially prejudice the interests of the party to whom such notice is to
be provided, the indemnifying party promptly will defend, contest, or otherwise
protect against any such Claim or suit at its own cost and expense. Such notice shall
describe the Claim or suit in reasonable detail and shall indicate the amount
(estimated, if necessary) of the loss that has been or may be suffered by the
indemnified party.
|
|
|
(b)
|
|
The indemnified party may, but will not be obligated to, participate at its
own expense in a defense thereof by counsel of its own choosing, but the indemnifying
party shall be entitled to control the defense unless the indemnified party has
relieved the indemnifying party from liability with respect to the particular matter,
provided that the indemnifying party may only settle or compromise the matter subject
to indemnification without the consent of the indemnified party if such settlement
includes a complete release of all indemnified parties as to the matters in dispute
and provided further that the indemnified party will not unreasonably withhold consent
to any settlement or compromise that requires its consent.
|
|
|
(c)
|
|
In the event the indemnifying party fails to timely defend, contest or
otherwise protect against any such Claim or suit, the indemnified party may, but will
not be obligated to, defend, contest or otherwise protect against the same, and make
any compromise or settlement thereof and recover the entire costs thereof from the
indemnifying party, including reasonable attorneys fees, disbursements and all
amounts paid as a result of such Claim or suit or the compromise or settlement
thereof;
provided, however,
that if the indemnifying party undertakes the defense of
such matter, the indemnified party shall not be entitled to recover from the
indemnifying party for its costs incurred in the defense thereof other than the
reasonable costs of investigation undertaken by the indemnified party and reasonable
costs of providing assistance.
|
|
|
(d)
|
|
The indemnified party shall cooperate and provide such assistance as the
indemnifying party may reasonably request in connection with the defense of the matter
subject to indemnification and in connection with recovering from any third parties
amounts that the indemnifying party may pay or be
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
34
|
|
|
required to pay by way of indemnification hereunder. The indemnified party shall
take commercially reasonable steps to protect its position with respect to any
matter that may be the subject of indemnification hereunder in the same manner as
it would any similar matter where no indemnification is available.
|
19.3
Mitigation of Damages
An indemnified party shall, to the extent practicable and reasonably within its control and at
the expense of the indemnifying party, make commercially reasonable efforts to mitigate any damages
of which it has adequate notice,
provided
that the indemnified party shall not be obligated to act
in contravention of Applicable Law or in contravention of reasonable and customary practices of a
prudent person in similar circumstances. The indemnifying party shall have the right, but not the
obligation, and shall be afforded the opportunity by the indemnified party to the extent reasonably
possible, to make commercially reasonable efforts to minimize damages before such damages actually
are incurred by the indemnified party.
19.4
Claim of Infringement
In the case of a Claim of infringement of any Intellectual Property or Trademark right, where
a court of competent jurisdiction finds such infringement, the Indemnifying Party will, at its
option and expense, use all reasonable efforts either (a) to procure for the Indemnified Party the
right to continue to use the product, service or other item as provided for herein, (b) to modify
the infringing product, service or other item so that it is noninfringing, without materially
altering its performance or function, (c) to replace the infringing product, service or other item
with a substantially equivalent noninfringing item, or (d) to refund the price paid for the use of
such Intellectual Property or Trademark right, less a reasonable charge for the use prior to the
infringement.
ARTICLE XX
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Party as of November 24, 2004 as
follows:
20.1
Organization, Standing and Authority
The Party is a limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction where it is formed, that it has all requisite power and
authority to enter into this Agreement and to consummate the transactions contemplated herein, that
all acts and other proceedings required to be taken to authorize the execution, delivery and
performance hereof and the consummation of the transactions contemplated herein have been duly and
properly taken, and that this Agreement has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
35
of the Party, enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general equity principles.
20.2
No Violation
The execution and delivery by the Party of this Agreement and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not (a) conflict with or
result in any violation of any provision of the organizational documents of the Party, (b) conflict
with, result in a violation or breach of, or constitute a default, or give rise to any right of
termination, revocation, cancellation, or acceleration, under, any material contract, concession or
permit issued to the Party, except for any such conflict, violation, breach, default or right which
is not reasonably likely to have a material adverse effect on the ability of the Party to
consummate the transactions contemplated by this Agreement, (c) conflict with or result in a
violation of any judgment, order, decree, writ, injunction, statute, law, ordinance, concession,
permit, rule or regulation applicable to the Party or to the property or assets of the Party,
except for any such conflict or violation which is not reasonably likely to have such a material
adverse effect, or (d) violate any existing contractual arrangement to which the Party is a party
or give rise to a Claim against any other Party for inducing a breach of contract or interfering
with contractual or other rights, or similar Claim.
20.3
Consents and Approvals
No consent, approval, license, permit, order or authorization of, registration, declaration or
filing with, or notice to, any Governmental Entity is required to be obtained or made by or with
respect to any Party in connection with the execution and delivery hereof or the consummation of
the transactions contemplated hereby, other than those filings that are necessary in order for
Royal Street to participate in the Auction Process and prosecute the applications where it is the
Successful Bidder. The Parties have or will obtain all necessary consents, approvals,
authorizations and permits necessary to perform fully hereunder.
20.4
Regulatory Compliance of Facilities
Any equipment, facilities and services provided pursuant to this Agreement, including the
attachments hereto, comply or will comply with all applicable rules or standards adopted by the FCC
or other Governmental Entities including but not limited to those with respect to E-911, number
portability, number conservation, CALEA, RF radiation hazard standards, universal service, privacy
methodologies and access by persons with disabilities.
20.5
MetroPCSs Covenant of Workmanlike Quality
MetroPCS hereby covenants and agrees that it will exercise reasonable care in performing the
services performed pursuant to this Agreement and that such services will
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
36
be performed in a diligent, professional, commercially reasonably and workmanlike manner,
consistent with industry standards for the wireless telecommunications industry. This covenant is
given in lieu of any other warranty, express or implied, including without limitation, implied with
warranties of merchantability or fitness for a particular purpose. Notwithstanding anything
contained herein to the contrary, Royal Streets sole remedy for a breach of this Agreement shall
be (a) Royal Streets right to have MetroPCS re-perform the services in a workmanlike manner and
(b) Royal Streets right to terminate the Agreement as set forth in Section 16.
ARTICLE XXI
LIMITATION OF LIABILITY
21.1
Limitations of Responsibility
Each Party will be responsible only for services and facilities which are provided by that
Party, its Affiliates, authorized agents, subcontractors or others retained by such persons, and no
Party will bear any responsibility for the services and facilities provided by the other Party, the
other Partys Affiliates, agents, subcontractors or other persons retained by such Persons. No
Party will be liable for any act or omission of another telecommunications carrier (other than an
Affiliate) providing a portion of a service.
21.2
Limitations of Damages
The Parties will not be liable to each other for any indirect, incidental consequential,
reliance or special damages (including, without limitation, damages for harm to business, lost
revenues, lost savings or lost profits suffered by such other parties), regardless of the form of
action, whether in contract, warranty, strict liability, or tort, including without limitation
negligence of any kind whether active or passive, and regardless of whether the Parties knew of the
possibility that such damages could result. The Parties hereby release each other and their
respective Affiliates, officers, directors, employees, and agents from any such Claim. Nothing
contained in this section will limit one Partys liability to another Party for (i) willful or
intentional misconduct (including gross negligence) or (ii) bodily injury, death, or damage to
tangible real or tangible personal property proximately caused by a Partys negligent act or
omission or that of their respective agents, subcontractors or employees, nor will anything
contained in this section limit the Parties indemnification obligations under this Agreement.
21.3
Limitations of Liability
Notwithstanding anything contained in this Agreement to the contrary, neither Party shall be
(i) liable to the other Party for the failure to perform an obligation under this Agreement (nor
shall either Party be in default or in breach of any provision of this Agreement) where the failure
to perform is the result of the other Partys failure to perform its obligations under this
Agreement, nor (ii) required to perform its obligations under this Agreement when such Partys
performance is contingent upon the other
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
37
Partys performance and the other Party fails to perform its obligations under this
Agreement.
21.4
Further Limitations
|
(a)
|
|
The Parties hereto waive as against each other any claims to consequential,
special, exemplary or punitive damages except to the extent consequential, special,
exemplary or punitive damages are awarded to a third party against an indemnified
party in circumstances in which such indemnified party is entitled to indemnification
hereunder. ***
|
|
|
(b)
|
|
In calculating any Damages to be paid under ARTICLE XIX or XXI, there shall
be deducted ***.
|
ARTICLE XXII
CONFIDENTIALITY
22.1
General
Each Party will hold in confidence and withhold from third parties (other than as permitted
below) any and all Proprietary Information received pursuant to this Agreement, and all Proprietary
Information used in the preparation and negotiation of this Agreement. Each Party will use such
Proprietary Information only to fulfill its obligations or enforce its rights hereunder and for no
other purposes unless the disclosing Party will otherwise agree in writing.
22.2
Obligation to Protect Proprietary Information
Each Party will use commercially reasonable efforts to safeguard any Proprietary Information
received pursuant to this Agreement from theft, loss or disclosure to others, and to limit access
to Proprietary Information to those officers, directors and employees within the receiving Partys
organization, and subcontractors, consultants, investors, advisors, attorneys, service providers,
business partners and others who reasonably require access in order to accomplish the aforesaid
purposes. Proprietary Information will be protected hereunder only if it is in written or other
permanent form and identified as proprietary when provided. Any such information in other than
written or other permanent form when disclosed will be considered Proprietary Information that is
protected hereunder, unless the Party disclosing such information advises the other Party that it
is not Proprietary. The receiving Party will not be liable for unauthorized use or
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
38
disclosure of any such Proprietary Information if it can establish that the same: (i) is or becomes
public knowledge or part of the knowledge or literature within the telecommunications industry
without breach of this Agreement by the receiving Party; (ii) is known to the receiving Party
without restriction as to further disclosure when received; (iii) is independently developed by the
receiving Party as demonstrated by written records; or (iv) is or becomes known to the receiving
Party from a third party who had a lawful right to disclose it without breach of its contractual
obligations. Specific Proprietary Information will not be deemed to be available to the public or
in the possession of the receiving Party merely because it is included within more general
information so available or in the receiving Partys possession.
22.3
Judicial or Administrative Proceedings
Should the receiving Party be faced with judicial or administrative governmental action to
disclose Proprietary Information received hereunder, said receiving Party will use commercially
reasonable efforts to notify the originating Party in sufficient time to permit the disclosing
Party to intervene in response to such action.
22.4
Loss or Unauthorized Use
The receiving Party agrees promptly to notify the disclosing Party of the loss or unauthorized
use or disclosure of any Proprietary Information.
22.5
Nondisclosure Agreements
Each Party will have any third party or Person to whom it provides the Proprietary Information
of any other Party agree in writing to be bound to protect such Proprietary Information on the same
conditions as set forth herein.
22.6
Termination
Upon termination of this Agreement for any reason, the Parties will cease use of all
Proprietary Information furnished by any other Party and will, at the direction of the furnishing
Party, return or destroy all such Proprietary Information, together with all copies made hereof,
except to the extent that the receiving Party retains a license to use such Proprietary
Information. Upon request, the receiving Party will send the other Party a destruction certificate.
22.7
Irreparable Injury by Disclosure to Competitors
Specifically, but without limiting the foregoing, each Party agrees and acknowledges that the
disclosure by a Party of any Proprietary Information to any competitor of a Party could cause
irreparable harm to such Party, and agrees not to make such a disclosure. Each Party will have the
right to enforce the provision of this Section by injunctive relief, including specific
performance. Personnel of one Party or its Affiliates present at the premises of one of the other
Parties or its Affiliates will refrain
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
39
from obtaining access to information that is proprietary to the customers of such other Party or
its Affiliates. Such personnel will comply with the other Partys or its Affiliates reasonable
measures established to restrict such access.
22.8
Survival of Nondisclosure Obligations
The obligations set forth in this ARTICLE XXII will survive the termination of this Agreement
for ***.
ARTICLE XXIII
GENERAL PROVISIONS
23.1
Americans With Disabilities Act
The Parties agree to coordinate any activities taken collectively which may be subject to the
requirements of the Americans with Disabilities Act (42 U.S.C. § 12101
et seq.)
and with the
network disclosure rules adopted by the FCC in proceedings to implement that Act or any amendments
to that Act.
23.2
Amendment
No amendment of this Agreement will be valid or binding on the Parties unless such amendment
will be in writing and duly executed by an authorized representative of each Party.
23.3
Assignment
No Party may assign or delegate any of its rights or obligations under this Agreement,
provided,
that (a) MetroPCS may subcontract its rights and obligations to an Affiliate without the
consent of Royal Street, so long as MetroPCS remains responsible for compliance with the rights and
obligations under this Agreement, (b) MetroPCS may assign its rights and obligation to an Affiliate
with the consent of Royal Street, which consent shall not be unreasonably withheld, delayed or
conditioned and (c) MetroPCS may assign its rights and obligations under this Agreement to an
assignee or transferee of all or a substantial portion of the MetroPCS CMRS Systems provided that
the licensee qualifications of the assignee or transferee have been approved by the FCC.
23.4
Attachments
Any attachments to this Agreement are incorporated into the Agreement and governed by the
terms hereof. In the event of any conflict between an attachment and this Agreement, the attachment
will control.
23.5
Cooperation
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
40
Each Party will use its respective commercially reasonable efforts to perform all actions or
refrain from performing any action, in either case as reasonably requested by any other Party, in
connection with the performance of the activities contemplated by this Agreement.
23.6
Costs, Expenses and Attorneys Fees
Each Party will be responsible for its own expenses arising under this Agreement, including
the preparation of this Agreement, except as set forth herein.
23.7
Dispute Resolution
All disputes will be resolved as provided for in ARTICLE 17 of the LLC Agreement.
23.8
Entire Agreement
This Agreement, the LLC Agreement and Ancillary Agreements referenced in the LLC Agreement
constitute the entire agreement and understanding of the Parties hereto with respect to the subject
matters contained therein. To the extent there is a conflict between this Agreement and the LLC
Agreement, the LLC Agreement will control.
23.9
Execution
This Agreement may be executed in counterparts each of which copies will be deemed an
original.
23.10
Force Majeure
Neither Party will be liable for any delay or failure in performance of any part of this
Agreement from any cause beyond its control and without its fault or negligence including, without
limitation, acts of nature, acts of civil or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, work stoppages, failures by common carriers or suppliers, equipment failure, cable cuts,
power blackouts, volcanic action, other major environmental disturbances or unusually severe
weather conditions. In such event, the Party affected will, upon giving prompt notice to the other
Party, be excused from such performance on a day-to-day basis to the extent of such interference
(and the other Party will likewise be excused from performance of its obligations on a day-to-day
basis to the extent such Partys obligations are related to the performance so interfered with).
Good Faith Performance
23.11
Good Faith Performance
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
41
Each Party will act in good faith in its performance under this Agreement and, in each case in
which a Partys consent or agreement is required or requested hereunder, such Party will not
unreasonably withhold or delay such consent or agreement.
23.12
Governing Law
This Agreement will be construed in accordance with and governed by the laws of the State of
Delaware without regard to choice of law provisions.
23.13
Insurance
At all times during the term of this Agreement each Party will keep and maintain in force at
its own expense, and covering the other Party as an additional insured, all insurance required by
Applicable Law, including, but not limited to, workers compensation insurance, and general
liability insurance in an amount to be determined promptly following the Effective Date for
personal injury or death, property damage, and automobile liability with coverage for bodily injury
and property damage. Upon request by the other Party, a Party will provide to the other Party
evidence of such insurance (which may be provided through a program of self-insurance). Each Party
must give the other Party at least thirty (30) days prior written notice of termination of any of
the foregoing insurance policies.
23.14
Joint Work Product
This Agreement is the joint work product of the Parties and has been negotiated by the Parties
and their respective counsel and will be fairly interpreted in accordance with its terms. In the
event of any ambiguities, no inferences will be drawn against either Party.
23.15
Labor Relations
Each Party will be responsible for labor relations with its own employees. Each Party agrees
to notify the other Party as soon as practicable whenever such Party has knowledge that a labor
dispute concerning its employees is delaying or threatens to delay such Partys timely performance
of its obligations under this Agreement and will minimize impairment of service to the other Party
(e.g.,
by using its management personnel to perform work or by other means) to the extent permitted
by Applicable Law.
23.16
No Waiver
The failure of any Party to insist upon or enforce strict performance by any other Party of
any provision of this Agreement or to exercise any right under this Agreement will not be construed
as a waiver or relinquishment to any extent of such Partys right to assert or rely upon any such
provision or right in that or any other instance; rather, the same will be and remain in full force
and effect.
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
42
23.17
Nonexclusive Dealings
This Agreement does not prevent either Party from operating Commercial Mobile Radio
Service systems on its own, or with other Persons.
23.18
Notices
Any notice, request, instruction or other document to be given hereunder by any Party to
any other Party under any section of this Agreement will be in writing and will be deemed
given upon receipt if delivered personally or by telex or facsimile, the next day if by
express mail or three (3) days after being sent by registered or certified mail, return
receipt requested, postage prepaid to the following addresses (or at such other address for a
Party as will be specified by like notice provided that such notice will be effective only
after receipt thereof):
|
|
|
If to MetroPCS:
|
|
MetroPCS Wireless, Inc.
|
|
|
8144 Walnut Hill Lane
|
|
|
Suite 800
|
|
|
Dallas, Texas 75231
|
|
|
Attention: Vice President, General Counsel and Secretary
|
|
|
Telephone: 214-265-2550
|
|
|
|
With a copy (which will not
|
|
Paul, Hastings, Janofsky & Walker LLP
|
constitute notice) to:
|
|
875 15th Street N.W.
|
|
|
Twelfth Floor
|
|
|
Washington, DC 20005
|
|
|
Attention: Carl. W. Northrop
|
|
|
Telephone: 202-551-1725
|
|
|
|
If to Royal Street:
|
|
Royal Street Communications, LLC
|
|
|
PO Box 2365
|
|
|
Southampton, NY 11969
|
|
|
Attention: Robert Gerard
|
|
|
Telephone: 631-283-9153
|
|
|
|
With a copy (which will not
|
|
Schulte, Roth & Zabel LLP
|
constitute notice) to:
|
|
919 Third Avenue
|
|
|
New York, NY 10022
|
|
|
Attention: Paul N. Roth, Michael R. Littenberg
|
|
|
Telephone: 212-593-5955
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
43
23.19
Publicity
The Parties agree to cooperate in the preparation and dissemination of publicity concerning
this Agreement. No Party will make a public announcement about this Agreement or the Parties
discussions related to any aspect of it, without the written consent of the other Party, which
consent will not be unreasonably refused, delayed, or conditioned. Any Party may at any time make
announcements which are required by Applicable Law, regulatory bodies, or stock exchange or stock
association rules, so long as the Party so required to make the announcement notifies in advance
the other Party of such requirement and promptly discusses with the other Party in good faith the
wording of any such announcement.
23.20
Regulatory Filings
Each Party will cooperate to the extent reasonably practicable in the preparation and filing
of any regulatory filings necessary or advisable to permit the performances and operations set
forth in this Agreement, including, without limitation, the provision of any information as may
reasonably be necessary therefore.
23.21
Relationship of Parties
Each Party shall perform services hereunder as an independent contractor and nothing herein
shall be construed as creating any other relationship between the Parties. The relationship
established by this Agreement will not be construed to create a partnership, joint venture or any
other form of legal entity, nor establish any fiduciary relationship among the Parties or any
affiliate of any Party. The provision of the services described in this Agreement does not
establish any joint undertaking, joint venture, pooling arrangement, partnership, fiduciary
relationship or formal business organization of any kind. Except as provided in this Agreement, no
Party shall act as or hold itself out as agent for the other Party or create or attempt to create
liabilities for any other Party.
23.22
Rules of Construction
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (a) words used in this Agreement, regardless of the gender and number
specifically used, will be deemed and construed to include any other gender and any other number as
the context requires; (b) as used in this Agreement, the word including is not limiting, and the
word or is not exclusive; (c) except as specifically otherwise provided in this Agreement in a
particular instance, a reference to a Section, Schedule, Attachment, Appendix or Exhibit is a
reference to a Section of this Agreement or a Schedule, Attachment, Appendix or Exhibit hereto, and
the terms this Agreement, hereof, herein, and other like terms refer to this Agreement as a
whole, including the Schedules, Attachments, Appendices and Exhibits to this Agreement, and not
solely to any particular part of this Agreement; (d) the descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement; (e) this Agreement will be construed to
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
44
refer to the provision of services in the United States of America; and (f) as used in this
Agreement, unless otherwise specifically noted herein, the word day or days means a calendar
day or days, respectively, including weekends and holidays.
23.23
Severability
In case any one or more of the provisions contained in this Agreement is for any reason be
held to be invalid, illegal or unenforceable in any respect by a court or other authority of
competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other
provision hereof and the Agreement will be construed as if such invalid, illegal or unenforceable
provision had never been contained herein and, in lieu of each such illegal, invalid or
unenforceable provision, there will be added automatically as a part of the Agreement a provision
as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable, it being the intent of the Parties to maintain the benefit of the
bargain for all Parties. If any provision of this Agreement, or the application thereof to any
Person or any circumstance, is found by the FCC to violate applicable FCC rules, regulations or
policies, the Parties shall negotiate in good faith to agree on a suitable and equitable provision
to be substituted therefore in order to preserve the benefits to the respective Parties
contemplated by and the purposes of this Agreement.
23.24
Third Party Warranties
Each Party will enforce any rights, warranties, licenses, terms and conditions and other
benefits accruing to it under each of its agreements with third parties participating in or
providing equipment, software or other services used in connection with the provision of services
under the Agreement wherever and whenever such Partys failure to enforce any such rights,
warranties, licenses, terms, conditions and other benefits could materially impair its ability to
provide such services in accordance with the terms and conditions of the Agreement.
23.25
Third Party Beneficiaries
This Agreement is for the sole benefit of the Parties and their permitted assigns, and nothing
herein expressed or implied will create or be construed to create any third-party beneficiary
rights hereunder, other than to permitted assigns. Except as specifically provided in this
Agreement, nothing in this Agreement will constitute a Party as a legal representative or agent of
the other Party, nor will a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the name or on behalf of
the other Party unless otherwise expressly permitted by such other Party.
23.26
Use of Contractors and Agents
Each Party will be fully responsible for the actions and conduct of their contractors,
subcontractors, consultants, agents and others employed to undertake or
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
45
perform any act or function under this Agreement as if the Party undertook or performed the act or
function through its directors, officers and employees.
23.27
Venue; Waiver of Jury Trial
|
(a)
|
|
THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL
COURT OF THE UNITED STATES OF AMERICA LOCATED IN THE
STATE OF DELAWARE SOLELY IN RESPECT OF THE
INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF
THIS AGREEMENT AND OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND WAIVE, AND
AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT
OR PROCEEDING FOR THE INTERPRETATION OR
ENFORCEMENT OF THIS AGREEMENT OR OF ANY SUCH
DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR THAT
SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE
VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS
AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES
IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL
COURT. THE PARTIES CONSENT TO AND GRANT ANY SUCH
COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES
AND OVER THE SUBJECT MATTER OF SUCH DISPUTE.
|
|
|
(b)
|
|
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT
IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO
|
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
46
|
|
|
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 23.27.
|
[signatures follow on next page]
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
47
IN WITNESS WHEREOF, the Parties hereto have caused this Services
Agreement to be executed by their respective authorized representatives as of the
date and year first above written.
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
|
ROYAL STREET
COMMUNICATIONS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
By:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Roger D. Linquist
|
|
|
|
Name:
|
|
ROBERT A. GERARD
|
|
|
|
Title:
|
|
President and CEO
|
|
|
|
Title:
|
|
CHIEF EXECUTIVE OFFICER
|
|
|
|
APPENDIX A
Master Equipment and Facilities Lease Agreement
CONFIDENTIAL AND PROPRIETARY INFORMATION OF GWI PCS1, METROPCS, C9 WIRELESS AND ROYAL STREET
COMMUNICATIONS NOT TO BE DISCLOSED EXCEPT BY WRITTEN AGREEMENT OF SUCH PARTIES
MASTER EQUIPMENT AND FACILITIES LEASE AGREEMENT
by and between
METROPCS WIRELESS, INC. and ROYAL STREET COMMUNICATIONS, LLC
|
|
|
LESSEE:
|
|
Royal Street Communications, LLC
|
Address:
|
|
PO Box 2365
|
|
|
Southampton, NY 11969
|
|
|
|
LESSOR:
|
|
MetroPCS Wireless, Inc.
|
Address:
|
|
8144 Walnut Hill Lane
|
|
|
Suite 800
|
|
|
Dallas, TX 75231
|
Lease Number:
1. AGREEMENT. Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor the Equipment and Facilities as more fully described in any schedule (individually
a Schedule and collectively the Schedules) that is or are incorporated by reference into
this Master Equipment and Facilities Lease Agreement (the Agreement). Each Schedule shall be
incorporated by reference into this Agreement by listing the above-referenced Lease Number
thereon and shall upon such incorporation be deemed to become part of a single integrated
agreement governed by the terms and conditions of this Agreement, as well as by the terms
and conditions set forth in the applicable Schedule. Each Schedule, when taken with this
Agreement and all other Schedules, shall constitute the entire agreement. All capitalized terms
herein which are not defined herein shall have the meanings ascribed to them in the Services Agreement,
dated as of November 24, 2004, between MetroPCS Wireless, Inc. and Royal Street Communications,
LLC (the Services Agreement).
2. APPOINTMENT OF LESSOR AS PURCHASING AGENT. Lessee has delivered
to Lessor copies of the Construction Plan and Technical Services Plan (collectively, the
Plans) that have been duly approved by the Management Committee of Royal Street. Together, the
Plans specify the Equipment and Facilities to be utilized in the construction and operation of
the Royal Street Systems. Lessee authorizes Lessor to act as Lessees agent to issue a purchase
order to any third party for the Equipment and Facilities (each, a Seller) and for necessary related
goods and services in accordance with the Plans. Such purchase order shall be subject to this
Section 2 and all references in this Agreement to Purchase Documents shall include such purchase order. By
executing the applicable Schedule, Lessee represents and warrants that Lessee has
reviewed, approved and received a copy of the applicable Purchase Documents.
3. DELIVERY; ACCEPTANCE. Lessor shall cause the Equipment and Facilities to be
delivered, at Lessees expense, to Lessee at the Equipment and Facilities Location (as
specified in the applicable Schedule) and Lessee shall accept the Equipment and Facilities upon the
later of (a) the installation of the Equipment and Facilities or (b) the satisfaction of the acceptance
criteria, if
any, specified in the applicable Purchase Documents. In any event, Lessee shall evidence its
acceptance of the Equipment and Facilities and commencement of this Agreement with respect thereto
by executing and delivering to Lessor a commencement certificate (the Commencement Certificate)
in a form acceptable to Lessor within five (5) business days after delivery. By executing and
delivering a Commencement Certificate to Lessor, Lessee represents and warrants that it has
irrevocably accepted such Equipment and Facilities under this Agreement. Lessee shall reimburse
Lessor for any late payment, interest on late payment or any other similar fee or charge imposed by
Seller as the result of Lessees failure to timely furnish its acceptance and all pertinent lease
documentation.
4. PURCHASE OF EQUIPMENT AND FACILITIES. Provided that no Event of Default (as defined
in Section 18) exists, and no event has occurred and is continuing that with notice or the lapse of
time or both would constitute an Event of Default, Lessor shall be obligated to purchase the
Equipment and Facilities from Seller and to lease the Equipment and Facilities to Lessee if and
only if Lessor receives on or before the Latest Commencement Date (as specified in the applicable
Schedule) the related Commencement Certificate and Schedule executed by Lessee, and such other
documents or assurances as Lessor may reasonably request.
5. TERM. The initial term of each Schedule shall begin on the date specified as the
Commencement Date on the Commencement Certificate with respect to such Schedule and shall, unless
otherwise specified in the Schedule, continue for a period of *** (the Initial Term)
with *** renewal terms (each a Renewal Term), at Royal Streets written election,
beginning on the expiration of, as applicable, the Initial Term or any preceding Renewal Term
(collectively, the Term). At any time after *** following the Commencement
Date of a Schedule, Lessee may terminate such Schedule prior to the end of its Term upon ninety
(90) days prior written notice to Lessor (Termination Notice) provided that no such Termination
Notice shall be effective unless, prior to or on the effective date of such Termination Notice,
Lessee shall have paid Lessor the Lessors Return (as hereinafter defined) for the Equipment and
Facilities set forth in such Schedule. Lessees failure to pay the Lessors Return prior to or on
the effective date of such Termination Notice shall render such Termination Notice ineffective and
Lessee shall continue to make the Rental Payments set forth in such Schedules.
6. RENT; LATE CHARGES. Lessee shall pay Lessor the first Rental Payment (as specified in the
applicable Schedule) for the Equipment and Facilities on or before the Commencement Date of the
applicable Schedule and shall pay Lessor the remaining periodic Rental Payments on or before the
periodic payment dates specified in the applicable Schedule. If, pursuant to this Agreement or the
applicable Schedule, the Term is extended, Lessee shall also pay all Rental Payments required with
respect thereto. In the case of a breach or an Event of Default on the part of Lessee under this
Agreement or any Schedule, all Rental Payments shall become immediately due and payable by Lessee
without demand or notice, without any court order or other process of law and without liability to
Lessee for any damages occasioned by such action, and all Equipment and Facilities are to be
immediately returned to Lessors possession in the same condition provided to the Lessee, less
reasonable wear and tear. Lessor is under no duty to mitigate any damages caused by Lessees breach
or Event of Default. All Rental Payments will be sent to Lessors above-referenced address, or to
such other address as specified by Lessor in writing. Lessee agrees to pay Lessor interest at the
rate of *** per month (or such lesser rate as is the
maximum rate allowable under applicable law) on any Rental Payment (or other amount due
hereunder) that is not paid within ten (10) days of its due date.
7. INSURANCE. At its own expense, Lessee shall provide and maintain the following insurance:
(a) insurance against the loss or theft of or damage to the Equipment and Facilities for the
greater of the Stipulated Loss Value (computed as described in the applicable Schedule) or full
replacement value thereof, naming Lessor as a loss payee; and (b) public liability and third-party
property damage insurance, naming Lessor as an additional insured. Such insurance shall be in a
form, amount and with companies reasonably satisfactory to Lessor, shall contain the insurers
agreement to give Lessor thirty (30) days prior written notice before cancellation or material
change thereof, and shall be payable to Lessor regardless of any act, omission or breach by Lessee.
Lessee shall deliver to Lessor the insurance policies or copies thereof or certificates of such
insurance on or before the Commencement Date of the applicable Schedule, and at such other times as
Lessor may reasonably request. If no Event of Default exists, and no event has occurred and is
continuing that with notice or the lapse of time or both would constitute an Event of Default, the
proceeds of any insurance required under clause (a) hereof that have been paid to Lessor shall be
applied against Lessees obligations to Lessor under Section 12 hereof.
8. TAXES. Lessee shall reimburse Lessor for (or pay directly, but only if instructed by
Lessor) all taxes, fees, and assessments that may be imposed by any taxing authority on the
Equipment and Facilities, on its purchase, ownership, delivery, possession, operation, rental,
lease, return to Lessor or its purchase by Lessee (collectively, Taxes);
provided,
however,
that Lessee shall not be liable for any such Taxes (whether imposed by the United
States of America or by any other domestic or foreign taxing authority) imposed on or measured by
Lessors net income or tax preference items. Lessees obligation includes, but is not limited to,
the obligation to pay all license and registration fees and all sales, use, excise, personal
property and other taxes and governmental charges, together with any penalties, fines and interest
thereon, that may be imposed during the Term of the applicable Schedule. Lessee is liable for these
Taxes whether they are imposed upon Lessor, Lessee, the Equipment and Facilities, this Agreement or
the applicable Schedule. If Lessee is required by law or administrative practice to make any report
or return with respect to such Taxes, Lessee shall promptly advise Lessor thereof in writing and
shall cooperate with Lessor to ensure that such reports are properly filed and accurately reflect
Lessors interest in the Equipment and Facilities. Lessor has no obligation to contest any such
Taxes; however, Lessee may do so provided that: (a) Lessee does so in its own name and at its own
expense; (b) the contest does not and will not result in any lien attaching to any Equipment and
Facilities or otherwise jeopardize Lessors right to any Equipment and Facilities; and (c) Lessee
indemnifies, defends, and holds harmless Lessor for all expenses (including legal fees and costs),
liabilities and losses that Lessor incurs as a result of any such contest.
9. REPAIRS; USE; LOCATION; LABELS. Lessee shall: (a) at its own expense, keep the Equipment
and Facilities in good repair, condition and working order and maintained in accordance with the
manufacturers recommended engineering and maintenance standards by personnel certified to work on
such Equipment and Facilities; (b) use the Equipment and Facilities lawfully and exclusively in
connection with its business operations and for the purpose for which the Equipment and Facilities
was designed and intended; and (c) without Lessors prior written consent, not move the Equipment
and Facilities from the Equipment and Facilities Location. If
Lessor supplies Lessee with labels stating that the Equipment and Facilities is owned by Lessor,
Lessee shall affix such labels to the Equipment and Facilities pursuant to Lessors instructions.
10. ACCESS; MAINTENANCE; INSPECTION; ALTERATIONS. Lessee shall have Unfettered Access to the
Equipment and Facilities. At its own expense, Lessee shall: (a) enter into and maintain a
maintenance agreement for the Equipment and Facilities with the manufacturer or other party
certified to maintain such Equipment and Facilities who is acceptable to Lessor; (b) maintain the
Equipment and Facilities in the same condition as when delivered, subject only to ordinary wear and
tear, and in good operating order and appearance; (c) make all alterations or additions to the
Equipment and Facilities that may be required or supplied by the Seller, the manufacturer,
applicable regulatory agencies, or which is otherwise legally necessary; and (d) make no other
alterations or additions to the Equipment and Facilities (except for alterations or additions that
will not impair the value or performance of the Equipment and Facilities and that are readily
removable without damage to the Equipment and Facilities). Any modifications, alterations, repairs,
or additions that Lessee makes to the Equipment and Facilities (except as permitted by Section
10(d) above) shall become Lessors property and shall also be deemed to be Equipment and
Facilities. Upon request, Lessor, or any party designated by Lessor, shall have the right to
inspect the Equipment and Facilities and Lessees applicable maintenance agreement and records at
any reasonable time.
11. PERSONAL PROPERTY; LIENS AND ENCUMBRANCES; TITLE. The Equipment and Facilities shall at
all times remain personal property, notwithstanding that the Equipment and Facilities, or any part
thereof, may be (or becomes) affixed or attached to real property or any improvements thereon.
Except for the interest of Lessor, Lessee shall keep the Equipment and Facilities free and clear of
all levies, liens and encumbrances of any nature whatsoever. Except as expressly set forth in this
Agreement, the Equipment and Facilities shall at all times remain the property of Lessor and Lessee
shall have no right, title or interest therein.
12. RISK OF LOSS. As between Lessor and Lessee, Lessee shall bear the entire risk of loss,
theft, destruction or damage to the Equipment and Facilities from any cause whatsoever or
requisition of the Equipment and Facilities by any governmental entity or the taking of title to
the Equipment and Facilities by eminent domain or otherwise (collectively, a Loss). Lessee shall
advise Lessor in writing within ten (10) days of any such Loss. Except as provided below, no such
Loss shall relieve Lessee of the obligation to pay Lessor Rental Payments and all other amounts
owed hereunder. In the event of any such Loss, Lessor, at its option, may: (a) if the Loss has not
materially impaired the Equipment and Facilities (in Lessors reasonable judgment), require Lessee,
upon Lessors demand, to place the Equipment and Facilities in good condition and repair reasonably
satisfactory to Lessor; or (b) if the Loss has materially impaired the Equipment and Facilities (in
Lessors reasonable judgment), require Lessee, upon
Lessors demand, to pay Lessor ***. Upon Lessors full receipt of such Lessors Return: (y) the applicable Schedule shall
terminate, and except as provided in Section 24, Lessee shall be relieved of all
obligations under the applicable Schedule; and (z) Lessor shall transfer all of its interest in the
Equipment and Facilities to Lessee AS IS, WHERE IS, and without any warranty, express or implied
from Lessor, other than the absence of any liens or claims by, through, or under Lessor.
Notwithstanding clause (b) in this Section 12, Lessor may, at its option, elect to have Lessee
continue Rental Payments under the applicable Schedule, without interruption, and replace the
damaged Equipment and Facilities with Equipment and Facilities of identical model, manufacturer and
condition (Replacement Equipment and Facilities), in which case Lessee shall cause the
Replacement Equipment and Facilities to be delivered to a location acceptable to Lessor and shall
convey title (lien free) to the Lessor whereupon the Replacement Equipment and Facilities shall be
subject to all of the terms and conditions of this Agreement and the applicable Schedule.
13. NON-CANCELABLE NET LEASE. Except as provided in Section 5 hereof, all leases hereunder
shall be non-cancelable net leases, and Lessee agrees that it has an unconditional obligation to
pay all rental payments and other amounts when due. Lessee may abate or reduce rental payments or
any other amounts due, or may set off any charges against those amounts, provided, such abatement,
reduction or set off is for obligations between Lessor and Lessee. Lessee is not entitled to
recoupments, cross-claims, counterclaims or any other defenses to any rental payments or other
amounts due hereunder, whether those defenses arise out of claims by Lessee against Lessor, Seller,
this Agreement, any schedule or otherwise. Neither defects in Equipment and Facilities, damage to
it, nor its loss, destruction or late delivery, shall terminate this Agreement or any schedule, or
affect Lessees obligations hereunder. Unless Lessees obligation to pay rental payments and other
amounts has been terminated pursuant to the express terms of this Agreement, all rental payments
and other amounts shall continue to be due and payable hereunder.
14. LESSOR DISCLAIMERS; LIMITATION OF REMEDIES. It is specifically understood and agreed that:
(a) Lessor shall not be deemed to have made any representation, warranty or promise made by Seller,
neither Seller nor Lessor shall act as, or be deemed to be, an agent of the other, and Lessor shall
not be bound by, or liable for, any representation or promise made by Seller; (b) Lessor shall not
be liable for any failure of any Equipment and Facilities or any delay in its delivery or
installation; (c) Lessor shall not be liable for any breach of any warranty that Seller may have
made; (d) Lessee has selected all Equipment and Facilities; (e) Lessor is not a manufacturer of any
Equipment and Facilities; and (f) the Equipment and Facilities are provided by Lessor AS-IS
without any warranties of any kind from Lessor and Lessor has not made and does not now make any
representation or warranty, express or implied, with respect to the design, compliance with
specifications, operation, or condition of any Equipment and Facilities (or any part thereof), the
merchantability or fitness of Equipment and Facilities for a particular purpose, or issues
regarding patent infringement, title and the like. It is further agreed that Lessor shall have no
liability to Lessee, Lessees customers, or any third parties for any direct, indirect, special,
punitive, treble, or consequential damages arising out of this Agreement or any schedule or
concerning any Equipment and Facilities, or for any damages based on strict or absolute tort
liability;
provided, however,
that nothing in this Agreement shall deprive Lessee of any
rights it may have against any person other than Lessor. Lessee shall look solely to Seller for any
and all claims and warranties relating to the Equipment and Facilities. Lessor hereby assigns to
Lessee for the term of the applicable schedule the right to enforce, provided no Event of Default
then exists under this Agreement and such enforcement is pursued in Lessees name, any
representations, warranties and agreements made by Seller pursuant to the purchase documents, and
Lessee may retain any
recovery resulting from any such enforcement efforts. To the extent permitted by applicable law,
Lessee waives any and all rights and remedies conferred upon a Lessee by Article 2a of the UCC and
any rights now or hereinafter conferred by statute or otherwise that may limit or modify Lessors
rights as described in this section or other sections of this Agreement. In the event of any breach
of any warranty or obligation under this Agreement, Lessees sole remedy shall be for Lessor to
reperform the obligation hereunder. LESSEES SOLE REMEDIES AGAINST LESSOR OR LESSORS SUPPLIERS FOR
LOSS OR DAMAGE RESULTING FROM, ARISING IN CONNECTION WITH, OR CAUSED BY, EITHER DIRECTLY OR
INDIRECTLY, DEFECTIVE ITEMS OF EQUIPMENT OR FACILITIES, OR PARTIAL OR TOTAL FAILURE OF THE
EQUIPMENT OR FACILITIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT
NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LESSEES RIGHT TO RECEIVE THE
SELLERS REPAIR OR REPLACEMENT SERVICE DESCRIBED IN ITS LIMITED WARRANTY. The foregoing shall be
Lessees sole and exclusive remedies at law or in equity, except for Lessees right to claim
damages for bodily injury to any person caused by the negligence of Lessor. The parties further
agree that the foregoing allocation of risk shall, in the event of Sellers inability, despite good
faith efforts, to meet its warranty obligations hereunder, remain in effect regardless of whether
the exclusive remedies provided for under this Section 14 then satisfy the essential purposes for
which they were intended, or otherwise provide Lessee with a fair quantum of relief.
15. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor that: (a)
Lessee is duly organized, validly existing and in good standing under applicable law; (b) Lessee
has the power and authority to enter into this Agreement, all Schedules and all other related
instruments or documents hereunder (collectively, the Fundamental Agreements); (c) such
Fundamental Agreements are enforceable against Lessee in accordance with their terms and do not
violate or create a default under any instrument or agreement binding on Lessee; (d) there are no
pending or threatened actions or proceedings before any court or administrative agency that would
have a material adverse effect on Lessee or any Fundamental Agreement, unless such actions are
disclosed to Lessor and consented to in writing by Lessor; (e) Lessee shall comply in all material
respects with all Federal, state and municipal laws and regulations the violation of which could
have a material adverse effect upon the Equipment and Facilities or Lessees performance of its
obligations under any Fundamental Agreement; (f) Lessee shall obtain all governmental approvals
necessary for it to enter into and perform each Fundamental Agreement; (g) each Fundamental
Agreement shall be effective against all creditors of Lessee under applicable law, including
fraudulent conveyance and bulk transfer laws, and shall raise no presumption of fraud; (h)
financial statements and other related information furnished by Lessee shall be prepared in
accordance with generally accepted accounting principles and shall present Lessees financial
position as of the dates given on such statements; (i) Lessee shall furnish Lessor with its
certified financial statements, opinions of counsel, resolutions, and such other information and
documents as Lessor may reasonably request; (j) all Equipment and Facilities is leased for business
purposes only, and not for personal, family or household purposes; and (k) all Equipment and
Facilities is tangible personal property and shall not become a fixture or real property under
Lessees use thereof. Lessee shall be deemed to have reaffirmed the foregoing warranties each time
it executes any Fundamental Agreement.
16. GENERAL INDEMNITY. Lessee shall indemnify, hold harmless, and, if so requested by Lessor,
defend Lessor against all claims (Claims) directly or indirectly arising out of or connected with
the Equipment and Facilities or any Fundamental Agreement. Claims refers to all losses,
liabilities, damages, penalties, expenses (including legal fees and costs), claims, actions, and
suits, whether based on a theory of strict liability of Lessor or otherwise, and includes, but is
not limited to, matters regarding: (a) the selection, manufacture, purchase, acceptance, rejection,
ownership, delivery, lease, possession, maintenance, use, condition, return or operation of the
Equipment and Facilities; (b) any latent defects or other defects in any Equipment and Facilities,
whether or not discoverable by Lessor or by Lessee; (c) any patent, trademark, or copyright
infringement; and (d) the condition of any Equipment and Facilities arising or existing during
Lessees use.
17. SURRENDER; EXTENSION OF TERM. Unless Lessee purchases the Equipment and Facilities or
renews the Term pursuant to the applicable Schedule, or acquires the Equipment and Facilities
pursuant to Section 12 hereof, Lessee shall, at its expense, deinstall, inspect and properly pack
the Equipment and Facilities, and return the Equipment and Facilities at the expiration of the
Term, free of all liens and rights of others, by delivering it on board such common carrier as
Lessor may specify with freight prepaid to any destination within the United States of America
specified by Lessor. The Equipment and Facilities shall be accompanied by an original copy of the
relocation inventory or other applicable form completed by the agent performing the deinstallation.
If Lessor so requests, Lessor and its agents shall have the right to enter upon any premises where
Equipment and Facilities may be located at a reasonable time to perform any of Lessees tasks noted
above in this Section 17, and Lessee shall reimburse Lessor for all costs and expenses Lessor
incurs in fulfilling such tasks. Lessee agrees that the Equipment and Facilities, when returned to
Lessor, shall be in the same condition as when delivered to Lessee, reasonable wear and tear
excepted, and certified as being eligible for the manufacturers generally available maintenance
contract at then prevailing rates, without Lessor incurring any expense to repair, rehabilitate or
certify such Equipment and Facilities (Lessee shall be liable for all costs and expenses Lessor
incurs to place the Equipment and Facilities in such condition). If requested by Lessor, Lessee, at
its expense, shall store the Equipment and Facilities on its premises for a reasonable period, not
to exceed ten (10) business days during which period the Equipment and Facilities shall be subject
to all of the terms and conditions hereof, except for the obligation to make Rental Payments. In
all instances where Lessee is returning Equipment and Facilities to Lessor, Lessee shall give
Lessor written notice thereof in accordance with the terms of the applicable Schedule. If Lessee
fails to provide the aforementioned notice or return the Equipment and Facilities to Lessor in the
time and manner provided above, the Term shall be extended in accordance with the terms of the
applicable Schedule. If any Schedule is extended pursuant to the preceding sentence, Lessee shall
continue to pay the higher of the periodic Rental Payments in effect prior to the expiration of the
then existing term of the applicable Schedule (whether it be the Initial Term or any Renewal Term)
or such other periodic rental payment amount as is specified for such extension period in the
Schedule, and all other provisions of this Agreement shall continue to apply.
18. EVENTS OF DEFAULT. Any of the following shall constitute an Event of Default under this
Agreement and all Schedules: (a) Lessee fails to pay any Rental Payment or any other amount payable
to Lessor hereunder within ten (10) days after its due date; or (b) Lessee fails to
perform or observe any other representation, warranty, covenant, condition or agreement to be
performed or observed by Lessee hereunder or in any other agreement with Lessor, or in any
agreement with any other person that in Lessors sole opinion is a material agreement, and Lessee
fails to cure any such breach within ten (10) days after notice thereof; or (c) any representation
or warranty made by Lessee hereunder, or in any other instrument provided to Lessor by Lessee,
proves to be incorrect in any material respect when made; or (d) Lessee makes an assignment for the
benefit of creditors, whether voluntary or involuntary; or (e) a proceeding under any bankruptcy,
reorganization, arrangement of debts, insolvency or receivership law is filed by or against Lessee
or Lessee takes any action to authorize any of the foregoing matters; or (f) Lessee becomes
insolvent or fails generally to pay its debts as they become due, the Equipment and Facilities are
levied against, seized or attached, or Lessee seeks to effectuate a bulk sale of Lessees inventory
or assets; or (g) Lessee voluntarily or involuntarily dissolves or is dissolved, or terminates or
is terminated; or (h) any guarantor under this Agreement is the subject of an event listed in
clauses (b) through (g) above; or (i) any letter of credit required pursuant to any Schedule is
breached, canceled, terminated or not renewed during the Term of any such Schedule.
19. REMEDIES. If an Event of Default occurs, Lessor may, in its sole discretion, exercise one
or more of the following remedies: (a) terminate this Agreement or any or all Schedules; or (b)
take possession of, disable or render unusable, any Equipment and Facilities wherever the Equipment
and Facilities may be located, without demand or notice, without any court order or other process
of law and without liability to Lessee for any damages occasioned by such action, and no such
action shall constitute a termination of any Schedule; or (c) require Lessee to deliver the
Equipment and Facilities at a location designated by Lessor; or (d) declare the Lessors Return (as
defined in Section 12 hereof and calculated by Lessor as of the date of the Event of Default) for
each applicable Schedule due and payable as liquidated damages for loss of a bargain and not as a
penalty and in lieu of any further Rental Payments under the applicable Schedule; or (e) proceed by
court action to enforce performance by Lessee of any Schedule and/or to recover all damages and
expenses incurred by Lessor by reason of any Event of Default; or (f) terminate any other agreement
that Lessor may have with Lessee; or (g) exercise any rights available to Lessor under the Uniform
Computer Information Transactions Act (h) exercise any other right or remedy available to Lessor at
law or in equity. Also, Lessee shall pay Lessor all costs and expenses (including legal fees and
costs and fees of collection agencies) incurred by Lessor in enforcing any of the terms, conditions
or provisions of this Agreement. Upon repossession or surrender of any Equipment and Facilities ,
Lessor shall lease, sell or otherwise dispose of the Equipment and Facilities in a commercially
reasonable manner, with or without notice and at public or private sale, and apply the net proceeds
thereof (after deducting all expenses, including legal fees and costs, incurred in connection
therewith) to the amounts owed to Lessor hereunder;
provided,
however,
that Lessee
shall remain liable to Lessor for any deficiency that remains after any sale or lease of such
Equipment and Facilities. Lessee agrees that with respect to any notice of a sale required by law
to be given ten (10) days notice shall constitute reasonable notice. These remedies are cumulative
of every other right or remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise, and may be enforced concurrently therewith or from time to time.
20. LESSORS PERFORMANCE OF LESSEES OBLIGATIONS. If Lessee fails to perform any of its
obligations hereunder, Lessor may perform any act or make any payment that
Lessor deems reasonably necessary for the maintenance and preservation of the Equipment and
Facilities and Lessors interests therein;
provided
,
however
, that the performance
of any act or payment by Lessor shall not be deemed a waiver of, or release Lessee from, the
obligation at issue. All sums so paid by Lessor, together with expenses, including legal fees and
costs, incurred by Lessor in connection therewith, shall be paid to Lessor by Lessee immediately
upon demand.
21. FINANCING OF ADDITIONS. If, under any Schedule, Lessee intends to make any addition to the
Equipment and Facilities, Lessee may, in writing, request Lessor to finance the costs of such
addition. Lessee shall provide Lessor with the terms under which it hopes to obtain the financing,
and upon receiving such a request Lessor shall determine, in its sole discretion, whether to
provide such financing. Lessor is under no obligation to make or finance additions to the Equipment
and Facilities.
22. ASSIGNMENT BY LESSOR. Lessor shall have the unqualified right to assign, pledge, transfer,
mortgage or otherwise convey any of its interests hereunder or in any Schedule or any Equipment and
Facilities, in whole or in part, without notice to, or consent of, Lessee. If any Schedule is
assigned, Lessee shall: (a) unless otherwise specified by the Lessor and the assignee specified by
Lessor (the Assignee), pay all amounts due under the applicable Schedule to such Assignee,
notwithstanding any defense, setoff or counterclaim whatsoever that Lessee may have against Lessor
or Assignee; (b) not permit the applicable Schedule to be amended or the terms thereof waived
without the prior written consent of the Assignee; (c) not require the Assignee to perform any
obligations of Lessor, other than those that are expressly assumed in writing by such Assignee; and
(d) execute such acknowledgments thereto as may be requested by Lessor. It is further agreed that:
(x) each assignee shall be entitled to all of Lessors rights, powers and privileges under the
applicable Schedule, to the extent assigned; (y) any Assignee may reassign its rights and interest
under the applicable Schedule with the same force and effect as the assignment described herein;
and (z) any payments received by the Assignee from Lessee with respect to the assigned portion of
the Schedule shall, to the extent thereof, discharge the obligations of Lessee to Lessor with
respect to the assigned portion of the Schedule. Lessee acknowledges that any assignment or
transfer by Lessor or any assignee shall not materially change Lessees obligations under the
assigned schedule.
23. ASSIGNMENT OR SUBLEASE BY LESSEE. Without Lessors prior written consent, Lessee shall not
assign this Agreement or any Schedule or assign its rights in or sublet the Equipment and
Facilities or any interest therein and any such assignment or sublease without Lessors consent
shall be void; provided, however, that Lessee may sublease or assign a Schedule to an affiliate or
a wholly-owned subsidiary of Lessee if: (a) Lessee and such sublessee or assignee execute and
deliver to Lessor a writing (to be provided by Lessor) whereby the sublessee or assignee agrees to
assume joint and several liability with Lessee for the full and prompt payment, observance and
performance when due of all of the obligations of the Lessee under such Schedule; and (b) Lessor
consents to such sublease or assignment, which consent shall not be unreasonably withheld. In no
event, however, shall any such sublease or assignment discharge or diminish any of Lessees
obligations to Lessor under such Schedule, nor shall Lessee move or relocate any of the Equipment
and Facilities, in whole or in part, without Lessors prior written consent, which consent may be
granted or withheld in Lessors sole discretion.
24. SURVIVAL; QUIET ENJOYMENT. All representations, warranties and covenants made by Lessee
hereunder shall survive the termination of this Agreement and shall remain in full force and
effect. All of Lessors rights, privileges, and indemnities, to the extent they are fairly
attributable to events or conditions occurring or existing on or prior to the termination of this
Agreement, shall survive such termination and be enforceable by Lessor and any successors and
assigns. So long as no Event of Default exists, and no event has occurred and is continuing that
with notice or the lapse of time or both would constitute an Event of Default, neither Lessor nor
any Assignee will interfere with Lessees quiet enjoyment of the Equipment and Facilities.
25. FILING FEES; FURTHER ASSURANCES; NOTICES. Lessee will promptly reimburse Lessor for any
filing or recordation fees or expenses (including lien search fees, legal fees and costs) incurred
by Lessor in perfecting or protecting its interests in the Equipment and Facilities and under this
Agreement. Lessee shall promptly execute and deliver to Lessor such documents and take such further
action as Lessor may from time to time reasonably request in order to carry out the intent and
purpose of this Agreement and to protect the rights and remedies of Lessor created or intended to
be created hereunder. All notices under this Agreement shall be sent to the respective party at its
address set forth on the front page of this Agreement or on the applicable Schedule or at such
other address as the parties may provide to each other in writing from time to time. Any such
notice mailed to said address shall be effective when deposited in the United States mail, duly
addressed and with first-class postage prepaid.
26. WAIVER OF JURY TRIAL; SUCCESSORS. Lessee and Lessor each irrevocably waive all right to
trial by jury in any lawsuit, proceeding, counterclaim or any other litigation or proceeding upon,
arising out of, or related to, this Agreement, any other fundamental agreement, or the dealings or
relationship between or among Lessor, Lessee, Seller or any other person. This Agreement and all
Schedules inure to the benefit of and are binding upon the permitted successors or assigns of
Lessor and Lessee.
27. NO WAIVER; LESSOR APPROVAL. Any failure of Lessor to require strict performance by Lessee,
or any written waiver by Lessor of any provision hereof, shall not constitute consent or waiver of
any other breach of the same or any other provision hereof. Neither this Agreement nor any other
Fundamental Agreement shall be binding upon Lessor unless and until executed by Lessor.
28. CAPTIONS; COUNTERPARTS; LESSORS AFFILIATES. The captions contained in this Agreement are
for convenience only and shall not affect the interpretation of this Agreement. Only one
counterpart of the Schedule shall be marked Original (the Original), and all other counterparts
thereof shall be marked as, and shall be, duplicates. To the extent that any Schedule constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in effect in any applicable
jurisdiction), no security interest in such Schedule may be created through the transfer or
possession of any counterpart other than the Original. Lessee understands and agrees that MetroPCS
Wireless, Inc. or any affiliate or subsidiary thereof, may, as Lessor, execute Schedules under this
Agreement, in which event the terms and conditions of the applicable Schedule and this Agreement as
it relates to the Lessor under such Schedule shall be binding upon and shall inure to the benefit
of such entity executing such Schedule as Lessor, as well as any successors or assigns of such
entity.
29. CHOICE OF LAW; INTEGRATION; ENTIRE AGREEMENT. Each lease under this Agreement shall
be governed by the internal laws (as opposed to conflicts of law provisions) of the state of
Delaware. If any provision of this Agreement or such Schedule shall be prohibited by or invalid
under that law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or such Schedule. Lessor and Lessee consent to the jurisdiction of any local, state
or Federal court located within the State, and waive any objection relating to improper venue or
forum non conveniens to the conduct of any proceeding in any such court. This Agreement and all
other Fundamental Agreements executed by both Lessor and Lessee constitute the entire agreement
between Lessor and Lessee relating to the leasing of the Equipment and Facilities, and supersede
all prior agreements relating thereto, whether written or oral, and may not be amended or modified
except in a writing signed by the parties hereto.
[signature page to follow]
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
___ day of
, 200___.
|
|
|
|
|
|
|
|
|
|
|
ROYAL STREET
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
COMMUNICATIONS, LLC
|
|
|
|
(Lessor)
|
|
|
(Lessee)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Lessee Authorized Signature)
|
|
|
|
(Lessor Authorized Signature)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Type/Print Name)
|
|
|
|
(Type/Print Name)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Title)
|
|
|
|
(Title)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Date)
|
|
|
|
(Date)
|
|
|
APPENDIX B
Wholesale Services Fees
1.
|
|
Rounding
|
|
|
|
Voice services call lengths will be measured on a per call
basis to the *** and the
aggregate number of minutes will be rounded to the next whole minute once every month.
Voice services calls will be rated at ***, and rounded to ***.
|
|
2.
|
|
Airtime Rates
|
|
|
|
Royal Street will charge MetroPCS *** set forth below for the
total minutes of *** voice PCS Service. The rates include domestic toll rates and any
applicable interconnection charges.
|
***
3.
|
|
Minimum Volume
|
|
|
|
If by the end of the first *** term MetroPCS has not generated voice service
MOUs in any *** greater than or equal to *** of the engineered capacity of the
system during the peak usage period on the most heavily utilized cell site, then the
arrangement shall be converted for the following *** to a take or pay arrangement where
MetroPCS pays for *** of the engineered peak usage capacity regardless of its actual
traffic volumes.
|
|
|
|
If by the end of the second *** term MetroPCS has not generated voice service
MOUs in any *** greater than or equal to *** of the engineered capacity of the
system during the peak usage period on the most heavily utilized cell site, then the
arrangement shall be converted for the following *** to a take or pay arrangement where
MetroPCS pays for *** of the engineered peak usage capacity regardless of its actual
traffic volumes
|
|
|
|
If by the end of the third *** term MetroPCS has not generated voice service
MOUs in any *** greater than or equal to *** of the engineered capacity of the
system during the peak usage period on the most heavily utilized cell site, then the
arrangement shall be converted for the
|
|
|
following *** to a take or pay arrangement where MetroPCS
pays for *** of the engineered
peak usage capacity regardless of its actual traffic volumes.
|
|
|
|
The Parties shall negotiate in good faith to agree upon the minimum volume for which
MetroPCS will pay inn order to meet the minimum percentages specified in this section. In
the absence of agreement, the minimum volume will be set utilizing the dispute resolution
procedures set forth in this Agreement.
|
|
4.
|
|
Included Features
|
|
|
|
Call Waiting
Three Way Calling
Caller ID
Caller ID Blocking
Basic Network Fraud Monitoring
Voicemail
Toll Blocking
|
Exhibit 10.7
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
by and between
METROPCS WIRELESS, INC.
and
ROYAL STREET COMMUNICATIONS, LLC
|
|
|
***
|
|
Where this marking appears throughout this Exhibit 10.7,
information has been omitted pursuant to a request for confidential
treatment and such information has been filed with the SEC separately.
|
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this Credit
Agreement) is executed on December 15,2005 (the Amendment Effective Date)
as of December 22, 2004, by and between MetroPCS Wireless, Inc., a Delaware
corporation (Lender or MetroPCS), and Royal Street Communications, LLC, a
Delaware limited liability company (Borrower).
RECITALS
WHEREAS, Borrower and MetroPCS, Inc., a Delaware corporation (Holdings)
entered into that certain Credit Agreement dated as of December 22, 2004 (the
Original Agreement) and certain ancillary documents related thereto,
including a Promissory Note, Security Agreement and Pledge Agreement (the
Original Ancillary Documents);
WHEREAS, Borrower and Holdings agreed to amend and restate the Original
Agreement pursuant to the terms and conditions of that certain Amended and
Restated Credit Agreement, dated as of January 24, 2005 (the Existing Credit
Agreement), and agreed to amend and restate the Original Ancillary Documents,
among other Loan Documents (as defined in each of the Original Agreement),
pursuant to the terms and conditions of the Loan Documents (as defined in the
Existing Credit Agreement);
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of April 29, 2005 (the Assignment Agreement), Holdings assigned all
of its right, title and interest in and to the Loans (as defined in each of
the Original Agreement and the Existing Credit Agreement), the Original
Agreement, the Existing Credit Agreement and the other Loan Documents (as
defined in each of the Original Agreement and the Existing Credit Agreement)
to MetroPCS, and MetroPCS assumed all of the obligations of Holdings in
respect of the foregoing, thereby becoming the Lender (as defined in the each
of the Original Agreement and the Existing Credit Agreement) for all purposes
in respect of the Loans (as defined in each of the Original Agreement and the
Existing Credit Agreement), the Original Agreement, the Existing Credit
Agreement and the other Loan Documents (as defined in each of the Original
Agreement and the Existing Credit Agreement);
WHEREAS, Borrower and MetroPCS desire to amend and restate the Existing
Credit Agreement to provide for, among other things, an increase in the Loan
Commitment Amount;
WHEREAS, Borrower acknowledges and agrees that the security interest
granted to Lender pursuant to the Loan Documents (as defined in each of the
Original Agreement and the Existing Credit Agreement) shall remain outstanding
and in full force and effect, without interruption or impairment of any kind,
in accordance with their terms, as renewed, amended or restated pursuant to
the Loan Documents (as defined herein), and shall continue to secure (i) the
due and punctual payment of (A) the principal and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Note (as defined herein), when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, and (B) all other monetary obligations, including but not limited
to, fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding regardless of whether allowed or allowable in such proceeding), of
Borrower under any of the Loan Documents (as defined herein), and (ii) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of Borrower under or pursuant to the Loan Documents (as defined
herein). (The items in clauses (i) and (ii) are collectively the
Obligations.);
WHEREAS, Borrower acknowledges and confirms that (i) the Obligations
represent, among other things, the amendment, restatement, and modification of all
indebtedness, liabilities, borrowings and advances arising in connection with
the Original Agreement, the Existing Credit Agreement and the other Loan
Documents (as defined in each of the Original Agreement and the Existing
Credit Agreement); (ii) all liens and encumbrances evidenced by the Loan
Documents (as defined in each of the Original Agreement and the Existing
Credit Agreement) are hereby ratified, confirmed and continued as modified,
amended or restated under the Loan Documents (as defined herein); (iii) this
Credit Agreement and the other Loan Documents (as defined herein) are intended
to restate, renew, extend, consolidate, amend and modify the Original
Agreement, the Existing Credit Agreement and the other Loan Documents (as
defined in each of the Original Agreement and the Existing Credit Agreement)
in their entirety; and (iv) this Credit Agreement and the other Loan Documents
(as defined herein) are not intended to constitute, and shall not constitute,
a novation and shall in no way adversely affect or impair the priority of the
liens granted in connection with the Original Agreement, the Existing Credit
Agreement and the other Loan Documents (as defined in each of the Original
Agreement and the Existing Credit Agreement).
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree to amend and restate the Existing Credit Agreement in
its entirety and further agree as follows:
Section 1: Defined Terms
In addition to the terms defined elsewhere in this Credit Agreement, the
following terms shall have the following meanings in this Credit Agreement:
Affiliate
shall mean, with respect to a Person, any other Person
directly or indirectly Controlling, Controlled by or under Common Control with
such Person at any time during the period for which the determination of
affiliation is being made.
Applicable Law
shall mean, with respect to any Person, any federal,
state, local or foreign law, statute, ordinance, rule, regulation, Judgment,
order, injunction, decree, arbitration award, agency requirement, franchise,
license or permit of, or any interpretation or administration of any of the
foregoing by, any Governmental Entity, whether in effect as of the Effective
Date or thereafter, and in each case as amended, applicable to such Person or
its Affiliates or their respective assets.
-2-
Auction
shall mean that Broadband PCS Auction No. 58 conducted by the FCC as
described in Public Notice, DA-04-3005 (rel. Sept. 16, 2004), as the same may be rescheduled or
modified by the FCC.
Borrower
shall have the meaning set forth in the preamble hereto.
Borrower Change in Control Event
shall be deemed to have occurred if (i) there shall be
consummated, or if Borrower enters into any agreement which would result in (x) any consolidation
or merger of Borrower in which Borrower is not the continuing or surviving entity, other than a
merger of Borrower in which the holders of the equity securities of Borrower immediately prior to
the merger have the same proportionate ownership of the equity securities entitled to vote for
members of Borrowers Board of Directors (or equivalent governing body) of the surviving entity
immediately after the merger, or (y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all, of the assets of
Borrower or (ii) the members of Borrower approve any plan or proposal for the liquidation or
dissolution of Borrower.
Build-Out
shall mean the construction by the Borrower of a Commercial Mobile Radio Service
system in accordance with the FCC Rules, 47 C.F.R. § 24.203.
Business Day
shall mean a day other than (i) a Saturday or Sunday or (ii) a day on which
banking institutions are authorized or required by law or executive order to remain closed in New
York City.
Closing Date
shall mean each date on which Lender makes a Loan to Borrower.
Commercial Mobile Radio Service or CMRS
shall mean a commercial mobile radio service as
defined in 47 C.F.R. § 20.3.
Commitment Period
shall mean the period commencing on the Effective Date and expiring on the
earliest to occur of ***.
Control
(including the correlative meanings of the terms Controlled by, Controlling and
under Common Control with) as used with respect to any Person, shall
-3-
mean the possession, directly or indirectly, of the power to direct or cause
the direction of management policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
Credit Agreement
shall have the meaning set forth in the
preamble hereto.
Effective Date
shall mean December 22, 2004.
Equipment and Facilities Lease Agreement
means that certain Equipment
and Facilities Lease Agreement entered into between MetroPCS and Borrower, as
amended.
Event of Default
shall have the meaning set forth in Section 6.1.
FCC
means the Federal Communications Commission or any successor thereto.
FCC Rules
shall mean any applicable rules and regulations of the FCC.
Financing Statements
shall mean such UCC financing statements and
other instruments reasonably required by the Lender to create, perfect and/or
maintain the security interests granted under the Pledge Agreement and the
Security Agreement.
GAAP
shall mean United States generally accepted accounting
principles, as in effect from time to time.
Governmental Entity
shall mean any government or political subdivision
thereof, including without limitation, any regional or municipal authority,
any governmental department, ministry, commission, board, bureau, agency,
regulatory authority, instrumentality, judicial or administrative body,
having jurisdiction over the matter or matters in question.
GWI
shall mean GWIPCS1, Inc., a Delaware corporation.
Holdings
shall have the meaning set forth in the
preamble hereto.
Holding Subsidiary
shall mean a corporation or LLC formed under the
laws of the State of Delaware, all of the capital stock or LLC units of which
shall be owned by Borrower, which corporation or LLC shall have as its sole
purpose to hold the License(s) and assets in a given Market (as such term is
defined in the LLC Agreement) to be used by Borrower in connection with the
Royal Street System in such Market.
Judgment
shall mean any judgment, writ, order, injunction, award or
decree of any court, judge, justice or magistrate, including any bankruptcy
court or arbiter, and any order of or by any other Governmental Entity.
Lease
shall mean any license, easement or other agreement pursuant to
which Borrower acquires rights to possess, occupy and/or use real property,
including without limitation as a tenant, licensee or beneficiary of an
easement.
-4-
Leasehold Mortgages
shall mean one or more leasehold mortgages in
substantially the form attached hereto as Exhibit D, or such other
documentation reasonably required by Lender from time to time to ensure that
Lender shall have a first priority lien on all Leases and other real property
interests of Borrower.
Lender
shall have the meaning set forth in the preamble hereto.
Lender Credit Facility
shall mean any loan commitment, and credit,
loan, or other agreement, entered into by Lender or any Affiliate of Lender
and a third party wherein such third party loans to Lender, and Lender borrows
from such third party, funds or other monies which are used to make Loans to
Borrower.
License
shall mean any license issued by the FCC for which Borrower or
a Holding Subsidiary is a Successful Bidder or any other license issued by the
FCC now or hereafter held by the Borrower or a Holding Subsidiary.
Litigation
shall mean any claim, action, suit, proceeding, arbitration,
investigation, hearing or other activity or procedure that could result in a
Judgment, and any notice of any of the foregoing.
LLC Agreement
shall mean the Amended and Restated Limited Liability
Company Agreement of Royal Street Communications, LLC by and among GWI,
MetroPCS and C9 Wireless, LLC, a Delaware limited liability company, executed
on December 15, 2005 as of November 24, 2004, as amended from time to time.
Loan Commitment Amount
shall mean the amount of the Loans needed to
permit Borrower to acquire the Licenses and to construct and operate the Royal
Street System, provided, however, that (i) in no event shall the Loan be less
than $293,599,250; and (ii) in no event shall any Loan over and above
$293,599,250 exceed the lesser of $50,000,000 or the maximum amount in excess
of $293,599,250 that Lender is permitted to lend to Borrower pursuant to the
Lender Credit Facility.
Loan Documents
shall mean this Credit Agreement, the Note, the Security
Agreement, the Pledge Agreement and any separate written agreement entered
into between the Borrower and Lender or any agent of Lender, and all other
agreements, instruments, certificates and other documents at any time executed
and delivered pursuant to or in connection herewith or therewith, as the same
may be supplemented, amended or otherwise modified from time to time after the
Amendment Effective Date. Notwithstanding the foregoing, the Loan Documents
shall not include the LLC Agreement, the Services Agreement or any agreement,
instrument, certificate or other document at any time executed and delivered
pursuant to or in connection with the LLC Agreement or the Services Agreement
as the same may be supplemented, amended or otherwise modified from time to
time after the Amendment Effective Date.
Loan Repayment Commencement Date
shall mean, with respect to the Note,
the earlier to occur of (i) the Substantial Completion Date or (ii) the date
on which the Services Agreement has been terminated (other than by Borrower in
accordance with its terms due to a default by MetroPCS) with respect to the
Borrower.
-5-
Loans
shall mean the loans to Borrower evidenced by the Note, not to
exceed the Loan Commitment Amount. Each advance made under the Note is a Loan.
Mandatory Prepayment Date
shall mean the date on which Borrower
receives a Refund of all funds (less any amounts retained by the FCC)
deposited by Borrower with the FCC for the purpose of permitting Borrower to
participate in the Auction if (i) Borrower is not the Successful Bidder for
any License or (ii) Borrower is the Successful Bidder for Licenses and the FCC
does not grant to Borrower at least one License for which Borrower was a
Successful Bidder as a result of the disposition of any appeals of FCC actions
or any judicial decisions, whether relating to appeals from FCC decisions or
otherwise, affecting the authorizations being auctioned in the Auction.
Material Adverse Effect
shall mean a material adverse effect on the
business, properties, assets, liabilities, prospects or condition (financial
or otherwise) of the Borrower or any of its Subsidiaries.
Maturity Date
shall mean with respect to all Loans made to the
Borrower, the date that is ***.
MetroPCS
shall have the meaning set forth in the preamble hereto.
Note
shall mean that certain Amended and Restated Promissory Note
executed on December 15, 2005 as of December 22, 2004 in the form attached hereto as
Exhibit A, executed by Borrower in favor of Lender and delivered by Borrower
to Lender in accordance with the terms of this Credit Agreement.
Permitted Liens
shall mean (i) any and all liens and security interests
created pursuant to any of the Loan Documents, (ii) liens for taxes, fees,
assessments and governmental charges not delinquent or which are being
contested in good faith by appropriate proceedings; provided, however, that
the Borrower shall have set aside on its books and shall maintain adequate
reserves for the payment of same in conformity with GAAP, (iii) liens,
deposits or pledges made to secure statutory obligations, surety or appeal
bonds, or bonds for the release of attachments or for stay of execution, or to
secure the performance of bids, tenders, contracts (other than for the payment
of borrowed money), leases or for purposes of like general nature in the
ordinary course of business, (iv) purchase money liens on tangible personal
property in the nature of office equipment utilized in the normal operation of
the business of Borrower, (v) liens for indebtedness permitted under the terms
of Section 5.10(b), so long as such liens (a) are subject to and subordinate
in all respects to the liens and security interests created pursuant to any of
the Loan Documents and (b) would not have a material adverse effect on the
Lenders ability to realize on the full value of the collateral upon the
occurrence of an Event of Default and (vi) liens for indebtedness permitted
under the terms of Section 5.10(c);
provided,
however,
that Permitted
Liens shall in all events include a first priority purchase money security
interest in telecommunication equipment purchased by Borrower as a result of
Lenders or its Affiliates breach under this Credit Agreement or the
Equipment and Facilities Lease Agreement.
-6-
Person
shall mean any natural person, corporation, firm,
unincorporated organization, association, partnership, limited liability
company, business trust, joint stock company, joint venture organization,
entity or business of any kind.
Pledge Agreement
shall mean the Amended and Restated Pledge Agreement
executed on December 15, 2005 as of December 22, 2004 in substantially the
form attached hereto as Exhibit F pursuant to which the Borrower shall pledge
to Lender all of the membership interests or other equity interests in its
respective Holding Subsidiaries as security for the repayment of the
Borrowers obligations under the Loan Documents.
Refund
shall be any amounts that Borrower paid in accordance with FCC
Rules to become eligible to participate in the Auction and that thereafter are
refunded to Borrower.
Refund Date
shall mean the date on which the Borrower receives a Refund
other than by reason of the fact that (i) Borrower is not the Successful
Bidder for any License or (ii) Borrower is the Successful Bidder for Licenses
and the FCC does not grant to Borrower at least one License for which Borrower
was a Successful Bidder as a result of the disposition of any appeals of FCC
actions or any judicial decisions, whether relating to appeals from FCC
decisions or otherwise, affecting the authorizations being auctioned in the
Auction.
Required Capital Contributions
the capital contributions required to be
made to Borrower by the Members of Borrower pursuant to Section 9.1 (a) of the
LLC Agreement.
Royal Street System
shall mean the Commercial Mobile Radio Service
system(s) operated pursuant to the Licenses.
Security Agreement
shall mean the Amended and Restated Security
Agreement executed on December 15, 2005 as of December 22, 2004 by and
between Borrower and Lender in substantially the form attached hereto as
Exhibit B.
Services Agreement
shall mean the Amended and Restated Services
Agreement, executed on December 15, 2005 as of November 24, 2004, by and
between Borrower and MetroPCS, as amended from time to time.
Subsidiary
shall mean, with respect to any legal entity, any other
corporation, limited liability company, general or limited partnership,
limited liability partnership, joint venture, trust or other entity of which
the outstanding capital stock possessing a majority of voting power in the
election of directors or their equivalent is owned or controlled by such
entity, directly or indirectly.
Subsidiary Security Agreement
shall mean the Security Agreement by and
between each Holding Subsidiary and Lender in substantially the form attached
hereto as Exhibit B.
Substantial Completion Date
shall mean the date on which the Build-Out
of the Royal Street System satisfies the construction requirements of Section
24.203 of the FCC Rules.
-7-
Successful Bidder
shall mean an entity that is awarded one or
more Licenses in the Auction by the FCC and successfully qualifies to be a
licensee for such Licenses under applicable FCC Rules.
Section 2: Terms of Loan
2.1 The Loans.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Credit Agreement and the
other Loan Documents, Lender agrees to make Loans to the Borrower from time to
time during the Commitment Period in a principal amount not to exceed, at any
time outstanding, the Loan Commitment Amount. Notwithstanding anything
contained herein to the contrary, in no event shall Lender be required to make
Loans to Borrower where such Loans would violate any covenants,
representations, warranties, or other terms and conditions of any Lender
Credit Facility.
2.2 Procedure for Borrowing.
a. Subject to the terms and conditions set forth in this Credit Agreement,
the
Lender shall advance to Borrower the amount of any Loan requested by
Borrower to pay for the
costs of acquiring Licenses for which Borrower is the Successful Bidder up
to the Loan
Commitment Amount. Borrower shall use the proceeds of any Loan made
pursuant to this
Section 2.2(a) for the purpose of timely making any such payments in
accordance with FCC
Rules.
b. Subject to the terms and conditions set forth in this Credit Agreement,
after
the Borrower is designated by the FCC by a Public Notice as the high bidder
on any license or
licenses offered for sale in Auction No.58, the Borrower or any Holding
Subsidiary may from
time to time, but no more than once each quarter, borrow any undrawn
portion of the Loan
Commitment Amount under this Credit Agreement during the Commitment Period
by giving
notice to the Lender specifying the amount to be borrowed and the purpose
therefore. Any Loan
made pursuant to this Section 2.2(b) may be used only for (i) the Build-Out
and operation of the
Royal Street System, or (ii) for any expenses related thereto, as
contemplated by the LLC
Agreement and the Services Agreement. Lender shall advance to Borrower
or Holding
Subsidiary, as the case may be, (i) up to Twenty-Five Million Dollars
($25,000,000) once each
quarter until the designation of Borrower as the Successful Bidder on the
Licenses; and, (ii) after
the Licenses are granted to Borrower by the FCC, the amount of any Loan
requested by
Borrower or Holding Subsidiary up to the amount budgeted in Borrowers
Annual Budget for the
succeeding three (3) month period in immediately available funds within
five (5) Business Days
following the date of such written request, provided that Borrower or
Holding Subsidiary, as the
case may be, shall have delivered to Lender evidence reasonably
satisfactory to Lender that the
proceeds of such Loan will be applied in accordance with the LLC Agreement.
No Loan shall be
made to Borrower or Holding Subsidiary if the making of such Loan would
cause the aggregate
principal amount outstanding hereunder to exceed the Loan Commitment Amount
or violate the
Lender Credit Facility. Each Loan made hereunder, including each Loan
made pursuant to
Sections 2.2(a) and 2.2(b) hereof, shall be deemed to be part of, borrowed
and drawn under, and
subject to the terms of, the Note.
-8-
c. The Lenders obligation to make Loans to Borrower shall
terminate upon the
earliest to occur of (i) expiration of the Commitment Period, (ii) the
date on which neither
MetroPCS nor any of its Affiliates is a Member of Borrower, (ii) the sale
of all or substantially
all of Borrowers assets or (iv) the Mandatory Prepayment Date.
d. The Borrower may at any time and from time to time prepay the Loans, in
whole or in part but limited to increments of no less than $25,000 per
prepayment, without
premium or penalty, upon at least three (3) Business Days advance notice
to Lender, specifying
the date and amount of prepayment. If any such notice is given, the
amount specified in such
notice, together with accrued interest to the date of such prepayment on
the amount prepaid, shall
be due and payable on the date specified therein. Amounts prepaid or
repaid may not be
reborrowed. Partial or total prepayments of the Loans shall be credited
first to any charges or
other amounts due to Lender under the terms of this Credit Agreement, then
to accrued interest
due and payable on the Loans, then to the principal balance outstanding.
e. Within three (3) Business Days after the Mandatory Prepayment Date,
Borrower shall prepay to Lender the entire principal amount of the Loans.
Borrower shall have
no obligation to pay any unpaid accrued interest on the Mandatory
Prepayment Date.
f. Within three (3) Business Days after the Refund Date, Borrower shall
prepay
to Lender the entire amount of any Refund, up to the aggregate principal
amount of all Loans
previously made to Borrower hereunder.
g. In the event that Borrower receives a Refund from the FCC with respect
to the
Auction, Borrower shall, within three (3) Business Days of receipt of such
Refund, make a
prepayment under this Credit Agreement in an amount equal the principal
amount of the Loans
outstanding under this Credit Agreement as of such date
less
the aggregate
amount of payments
already made and still owed to the FCC with respect the Licenses for which
Borrower was a
Successful Bidder.
2.3
Interest Rates and Payments.
a. Interest shall accrue on the aggregate principal balance from time to
time
outstanding hereunder at a rate equal to 11% per annum, compounded
quarterly commencing on
the last day of the first calendar quarter following the Effective Date.
Interest shall be computed
on the basis of a year with three hundred sixty (360) days, and the actual
number of days elapsed.
b. All payments by the Borrower hereunder and under the Loan Documents
shall
be made to the Lender, at its address as set forth in Section 7.10 in
immediately available funds
on the date on which such payment shall be due.
c. Until the Loan Repayment Commencement Date, all interest accrued on the
aggregate outstanding principal balance of the Loans shall be added to and
become a part of the
outstanding principal amount of the Loans on and as of the last day of
each calendar quarter.
d. Commencing on the Loan Repayment Commencement Date, Borrower shall
make equal monthly consecutive payments to Lender in an amount sufficient
to fully amortize
the outstanding principal balance of the Loans, all interest accrued
thereon, and all other amounts
-9-
then due and owing under this Credit Agreement, the Note or any of the
other Loan Documents from such date until the Maturity Date.
e. As long as any payment due under this Credit Agreement, the Note, or
any of the other Loan Documents remains past due (whether at the stated
maturity, by acceleration or otherwise) for five (5) days or more, such
overdue amount shall accrue interest from the earlier of the due date of such
payment due at a rate equal to eighteen percent (18%) per annum, in each case
from the date of such non-payment until such overdue amount is paid in full
(whether after or before judgment).
2.4 Conditions Precedent to Lenders Obligation to Make Any Loan.
a. Lender shall not be required to make any Loan to Borrower under this
Credit Agreement unless as of the applicable Closing Date, each of the
following conditions has been satisfied to Lenders satisfaction:
|
(i)
|
|
Borrower shall have executed and delivered to
Lender the Note, the Security Agreement and the Pledge Agreement;
|
|
|
(ii)
|
|
Borrower shall have executed and delivered such
Financing Statements and other instruments required by the Lender
to create, perfect and/or maintain the security interests created
pursuant to the Pledge Agreement and the Security Agreement;
|
|
|
(iii)
|
|
Lender shall have a perfected first priority
security interest in all of the membership interests in Borrowers
Holding Subsidiaries;
|
|
|
(iv)
|
|
Lender shall have received evidence satisfactory to
it that the Financing Statements and other instruments delivered
to the Lender have been filed in all appropriate filing offices
and that such filed Financing Statements perfect first priority
security interests, subject to any Permitted Lien, in favor of the
Lender in the property described therein;
|
|
|
(v)
|
|
Lender shall have received customary reports of
searches of filings made with government agencies showing that
there are no liens on the assets of the Borrower other than the
Permitted Liens;
|
|
|
(vi)
|
|
Lender shall have received from Borrowers counsel
(which counsel shall be reasonably acceptable to Lender) such
legal opinions as to such customary matters (including without
limitation, enforceability, due authorization, execution and
delivery, but not as to FCC regulatory matters) as Lender shall
reasonably request;
|
|
|
(vii)
|
|
Borrower shall have delivered to Lender an
officers certificate signed by an officer of Borrower certifying
that as of such Closing Date:
|
|
(A)
|
|
The representations and warranties of
Borrower contained in Section 4 are true and correct in all
material respects at and as of the Closing Date as though
then made;
|
-10-
|
(B)
|
|
Borrower is in full compliance with the covenants set forth in
Section 5;
|
|
|
(C)
|
|
Borrower has taken all action necessary
to authorize it to incur the Loan,
such Loan is permitted under the terms of the LLC Agreement,
and such
Loan does not conflict with or result in a breach of the
terms, conditions or
provisions of, or constitute a default under, the LLC
Agreement or any
other agreement to which Borrower is a party or to which any
assets of
Borrower may be bound;
|
|
|
(D)
|
|
No Event of Default (or other event which
if not timely cured or corrected
would, with the passage of time, become an Event of Default)
shall have
occurred or be continuing;
|
|
|
(E)
|
|
No Litigation is pending against Borrower
which would reasonably be
expected to result in any Borrower Material Adverse Effect;
and
|
|
|
(F)
|
|
All consents required to be received in
connection with the Loan from any
Governmental Entity or other Person shall have been received.
|
|
(viii)
|
|
Borrower shall have delivered to Lender a written certification
of the uses to which the borrowed funds will be put, which uses
shall be in accordance with (A) this Credit Agreement; and, (B)
after the grant of the Licenses by the FCC to Borrower, the Annual
Budget, the Construction Plan, and Annual Business Plan as approved
by the Royal Street Management Committee pursuant to the Services
Agreement; and
|
|
|
(ix)
|
|
such other documents relating to the Loan as Lender may
reasonably request.
|
2.5 Security Agreement; Leasehold Mortgages.
a. The Loans and all amounts outstanding from time to time under the
Loan Documents shall be secured by:
|
(i)
|
|
A first priority security interest (subject to the
Permitted Liens) in all tangible and intangible property and assets
of Borrower, including, but not limited to, chattel paper, general
intangibles, instruments, documents and all other rights relating
to or arising out of such accounts, and all inventory, equipment
and fixtures wherever located, now owned or acquired in the future
by the Borrower, all Licenses (but solely only to the extent if any
permitted by Applicable Law), and all proceeds and products of such
property. The Lenders security interest in the foregoing shall be
created by and subject to the provisions of the Security Agreement.
|
|
|
(ii)
|
|
A first priority security interest in the membership
interests in each Holding Subsidiary of Borrower. The Lenders
security interest in the foregoing shall be created by and subject
to the provisions of the Pledge Agreement.
|
-11-
|
(iii)
|
|
A first priority lien on all real property interests
of Borrower, including without limitation all Leases, including
capital leases, and all real property owned by Borrower in fee
simple. The Lenders liens in the foregoing shall be created by
and subject to the provisions of one or more Leasehold Mortgages,
substantially in the form of Exhibit D, entered with respect to
each Lease, parcel of real property or other real property
interest.
|
|
(iv)
|
|
A first priority lien on all proceeds of all
Licenses (whether from the sale or other disposition thereof or
otherwise) held by any Holding Subsidiary and, solely to the extent
if any permitted by Applicable Law, all such Licenses. The Lenders
security interest in the foregoing shall be created by and subject
to the provisions of the Security Agreement, and where applicable,
the Subsidiary Security Agreement.
|
Section 3: Representations and Warranties of Lender
Lender hereby represents and warrants to Borrower as follows:
3.1 Organization and Standing.
Lender is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite power
and authority to execute and deliver this Credit Agreement and to perform its
obligations hereunder.
3.2 Authorization by Lender.
a. This Credit Agreement has been duly and validly executed and delivered
by
Lender and constitutes the legal, valid and binding obligation of Lender
enforceable against
Lender in accordance with its terms, except as such enforceability may be
limited by (i)
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors rights
generally or (ii) general principles of equity.
b. Neither the execution, delivery or performance of this Credit Agreement
by
Lender nor the consummation by Lender of the transactions contemplated
herein will, with or
without the giving of notice or the lapse of time, or both, (i) violate
any Applicable Laws to
which Lender is subject, (ii) conflict with or result in a breach of the
terms, conditions or
provisions of, or constitute a default under, the articles of
incorporation or bylaws of Lender or
any material agreement or commitment to which Lender is a party or by
which Lender or any of
Lenders assets, may be bound or affected, or (iii) except with respect to
the exercise of certain
of Lenders remedies under the Loan Documents, require Lender to obtain
any authorization,
consent, approval or waiver from, or to make any filing with, any
Governmental Entity or non-governmental third party other than those that have been made as of the
Effective Date.
3.3 Litigation.
There is no Litigation pending against Lender, or, to the knowledge of
Lender, a basis for Litigation or threatened Litigation against Lender which
seeks to enjoin or obtain damages in respect of the consummation of the
transactions contemplated hereby.
-12-
Section 4: Representations and Warranties of Borrower
Borrower hereby represents and warrants to Lender as follows:
4.1 Organization and Standing of Borrower.
Borrower is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware with all
requisite power and authority to own its properties, and conduct its business
as now being conducted, and is duly qualified to do business as a foreign
limited liability company in good standing in each jurisdiction where the
ownership of its properties or the conduct of its business makes such
qualification necessary, except in those jurisdictions where failure so to
qualify will not permanently impair title to a material amount of its
properties, permits or licenses or its rights to enforce in all material
respects contracts against others or expose it to substantial liabilities in
such jurisdictions.
4.2 Authorization by Borrower; Consents.
a. Borrower has all requisite power and authority to execute, deliver and
perform
its obligations under this Credit Agreement, the Note and all other Loan
Documents to which it
is a party. Borrower has taken all action necessary to authorize this
Credit Agreement, the Note
and all other Loan Documents to which it is a party, and all such documents
have been duly
authorized, executed and delivered by Borrower and are legal, valid and
binding obligations of
Borrower enforceable in accordance with their terms, except as such
enforceability may be
limited by (i) bankruptcy, insolvency or other similar laws affecting the
enforcement of
creditors rights generally or (ii) general principles of equity.
b. Neither the execution, delivery and performance of this Credit
Agreement, the
Note or the other Loan Documents by Borrower nor the consummation by
Borrower of the
transactions contemplated herein or therein will, with or without the
giving of notice or the lapse
of time, or both, (i) violate any Applicable Laws to which Borrower is
subject, (ii) conflict with
or result in a breach of the terms, conditions or provisions of, or
constitute a default under, the
LLC Agreement, any license or permit of Borrower or any material contract
to which Borrower
is a party or by which Borrower may be bound or affected, or (iii) except
with respect to the
exercise of certain of Lenders remedies under the Loan Documents, require
Borrower to obtain
any authorization, consent, approval or waiver from, or to make any filing
with, any
Governmental Entity or non-governmental third party.
4.3 Litigation.
There is no Litigation pending against Borrower, or, to the knowledge of
Borrower, a basis for Litigation or threatened Litigation against Borrower
which (a) seeks to enjoin or obtain damages in respect of the consummation of
the transactions contemplated hereby or (b) has or could have a Material
Adverse Effect on the Borrower.
-13-
4.4 Compliance with Applicable Laws.
Borrower has complied and presently is in compliance with all Applicable
Laws except to the extent that failure to comply with the same does not or
will not have a Material Adverse Effect on the Borrower.
4.5 Subsidiaries.
Except for any Holding Subsidiaries of Borrower, Borrower has no Subsidiaries.
4.6 Absence of Defaults.
Neither the Borrower nor any Subsidiary of Borrower is in material
default under or in material violation in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any provision of its constitutive documents or contained in any other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties is subject, and neither Borrower nor any
Subsidiary of Borrower is in material violation of any statute, order, rule or
regulation of any court or governmental agency or body having jurisdiction
over it or any of its properties.
4.7 Indebtedness.
As of the Effective Date, Borrower has no indebtedness outstanding except
the indebtedness permitted pursuant to the terms of this Credit Agreement, and
obligations under the Loan Documents; none of such indebtedness is in default.
4.8 Accuracy and Completeness of Information.
No representation or warranty of the Borrower contained in this Credit
Agreement or the other Loan Documents contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not materially misleading. There is no
fact known to the Borrower which materially adversely affects its business,
operations, property, assets or condition (financial or otherwise) which has
not been disclosed herein or in such other documents, certificates and
statements furnished to the Lender for use in connection with the transactions
contemplated hereby.
Section 5: Covenants of Borrower
Borrower hereby covenants and agrees with Lender as follows:
5.1 Use of Proceeds.
Borrower shall use 100% of the Loan proceeds solely for the following
purposes: (i) to make payments for the Licenses in accordance with the
Auction; and, (ii) to finance the Build-Out and operation of the Royal Street
System and for any expenses related thereto as contemplated by the LLC
Agreement and the Services Agreement.
-14-
5.2 Compliance with Agreements; Borrower Status.
The Borrower shall at all times observe and perform all of the covenants,
conditions and obligations required to be performed by it under the Services
Agreement.
5.3 Payment.
Borrower shall promptly pay to Lender with interest the
obligations due or to become due at the times and places and in the amount and
manner specified in this Credit Agreement, the Note and the other Loan
Documents.
5.4 Subsidiaries.
a. As soon as practicable after the date on which the Licenses are
granted to Borrower, or prior to the date on which the Licenses are granted to
Borrower if Borrower can amend its pending FCC application to substitute an
affiliated company as the applicant without causing material delay in the
processing of the Auction No. 58 long form application, Borrower shall form
one or more Holding Subsidiaries. Borrower shall contribute one or more of
such Licenses to each of the Holding Subsidiaries, as contemplated by Section
2.5(d) of the LLC Agreement. Lender shall require each Holding Subsidiary to
become a party to this Agreement and to be jointly and severally liable for
all obligations of Borrower hereunder by executing a copy of the form of
counterpart signature page substantially in the form of Exhibit C attached
hereto and made a part thereof.
5.5 Existence.
a. The Borrower shall maintain (a) its limited liability company existence
under
the laws of the jurisdiction of its formation and (b) its good standing and
its right to carry on its
business and operations in the jurisdiction of its formation or
incorporation and in each other
jurisdiction in which the character of the properties owned or leased by it
or the business
conducted by it makes such qualification necessary and the failure to be in
good standing would
permanently preclude the Borrower from enforcing its rights with respect to
any material assets
or expose the Borrower to any material liability.
b. The Borrower shall cause each of the Holding Subsidiaries to maintain
(a) its
existence under the laws of the State of Delaware and (b) its good standing
and its right to carry
on its business and operations in the State of Delaware and in each other
jurisdiction in which the
character of the properties owned or leased by such Holding Subsidiaries
makes such
qualification necessary.
5.6 Compliance with Laws, Taxes, Etc.
The Borrower shall, and shall cause its Subsidiaries to, comply in all
material respects with all Applicable Laws, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent contested in good faith by appropriate proceedings and
for which any reserves required by GAAP have been established. In the event
the Borrower fails, or fails to cause any of its Subsidiaries, to satisfy its
obligations under this Section 5.6, as to taxes,
-15-
assessments and governmental charges, the Lender may, but is not
obligated to, satisfy such obligations in whole or in part and any payments
made and expenses incurred in doing so shall constitute principal indebtedness
hereunder governed by the terms of the Note and shall be paid or reimbursed by
the Borrower upon demand by Lender.
5.7 Books and Records.
The Borrower shall at all times keep proper books and records of accounts
in which full, true and correct entries shall be made of its transactions in
accordance with GAAP consistently applied.
5.8 Assets and Insurance.
The Borrower shall maintain in full force and effect (a) a usual and
customary errors and omissions insurance policy, (b) such other insurance
coverage, on all properties of a character usually insured by organizations
engaged in the same or similar business against loss or damage of a kind
customarily insured against by such organizations, (c) adequate public
liability insurance against tort claims which may be asserted against the
Borrower and (d) such other insurance coverage for other hazards as Lender may
from time to time reasonably require to protect its rights and benefits under
this Credit Agreement and the other Loan Documents. All commercial general
liability and property damage insurance policies and any other insurance
policies required to be carried hereunder shall (i) be issued by insurance
companies with a then-current Alfred M. Best Company, Inc. (or if no longer in
existence, a comparable rating service) general policy holders rating of A
or better and financial size category of Class XII or higher and otherwise
reasonably satisfactory to Lender; (ii) designate Lender as additional
insured; (iii) be written as primary policy coverage and not contributing with
or in excess of any coverage which Lender may carry; (iv) provide for thirty
(30) days prior written notice to Lender of any cancellation or nonrenewal of
such policy; and (v) contain contractual liability coverage insuring
performance by Borrower of the indemnity provisions of the Loan Documents.
Borrower shall promptly deliver to Lender upon receipt and from time to time
upon Lenders request either a copy of each such policies of insurance or
certificates evidencing the coverages required hereunder.
5.9 Financial Statements and Other Reports.
The Borrower shall maintain a system of accounting (as to its own
operations and financial condition) established and administered in accordance
with sound business practices such as to permit the preparation of financial
statements in accordance with GAAP and furnish or cause to be furnished to the
Lender:
a.
Annual Statements.
Commencing in 2005, as soon as practicable
following the end of each fiscal year, but in any event within ninety (90)
days after the end of each fiscal year, Borrower shall cause to be prepared
and delivered to Lender the audited statement of income and statement of cash
flows for such fiscal year, audited balance sheet as of the end of such fiscal
year, and accompanying notes to financial statements, on a consolidated basis,
prepared in accordance with GAAP.
-16-
b.
Quarterly Statements.
As soon as practicable following
the end of each of the
first three fiscal quarters of each fiscal year, but in any event within
forty-five (45) days after the
end of such quarter, Borrower shall cause to be prepared and delivered to
Lender, an unaudited
statement of income and statement of cash flows for such quarter and an
unaudited balance sheet
as of the end of such quarter on a consolidated basis, prepared in
accordance with GAAP.
c.
Monthly Statements.
As soon as possible following the end of
each calendar
month in each fiscal year, but in any event within thirty (30) days after
the end of such month, (i)
Borrower shall cause to be prepared and delivered to Lender, an unaudited
statement of income
and statement of cash flows for such month and an unaudited balance sheet
as of the end of such
month on a consolidated basis, prepared in accordance with GAAP, and (ii)
Borrower shall
provide Lender with a monthly report of significant operating and financial
statistics including,
to the extent applicable, number of subscribers, subscriber churn
statistics, minutes of use,
average revenues per subscriber, acquisition costs and capital expenditure
efficiency statistics
and such additional statistics and information as may be approved for
internal use by the
Borrower.
d. Within five (5) Business Days after their occurrence, notice of each of
the
following events:
|
(i)
|
|
the commencement of any Litigation against the Borrower or
any material development in any Litigation pending or threatened
against the Borrower.
|
|
|
(ii)
|
|
any Event of Default or other breach by
Borrower of any covenant or agreement of Borrower in this Credit
Agreement or any of the other Loan Documents.
|
|
|
(iii)
|
|
notice of any event that could have a Material Adverse Effect
on the Borrower.
|
5.10 Indebtedness.
The Borrower shall not, directly or indirectly, create, incur, assume,
guarantee or otherwise become or remain directly or indirectly liable with
respect to any indebtedness, except:
a. the indebtedness created under this Credit Agreement;
b. indebtedness (i) that is subordinate in right of payment to all
indebtedness
evidenced by the Note, (ii) the incurrence of which would not have a
Material Adverse Effect on
the Borrower and (iii) the lender of which enters into an intercreditor
agreement with Lender in
form and substance satisfactory to Lender;
c. purchase money financing of telecommunications equipment if the terms
of
such financing are more favorable to Borrower than the terms of the Loans
or if Lender or its
Affiliates are in breach under this Credit Agreement or the Equipment and
Facilities Lease
Agreement;
d. current obligations incurred in the ordinary course of business and not
overdue (unless the same are being contested in good faith and by
appropriate proceedings and
adequate reserves are maintained therefor in accordance with GAAP), not to
exceed in the
-17-
aggregate an amount to be determined by Lender in its reasonable
discretion within one (1) year after the Amendment Effective Date;
e. renewals, extensions, replacements, refinancings or refundings of
any of the foregoing.
5.11 Investments.
The Borrower shall not, directly or indirectly, make or own any
investment in any Person, except: investments in (i) Holding Subsidiaries of
Borrower, (ii) marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition thereof, (iii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poors Corporation or Moodys Investors Service, Inc.,
(iv) commercial paper maturing no more than 270 days from the date of creation
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poors Corporation or Moodys Investors Service, Inc.,
and (v) time deposits maturing within one (1) year from the date of creation
thereof with, including certificates of deposit issued by, any office located
in the United States of any bank or trust company that is organized under the
laws of the United States or any state thereof and whose certificates of
deposit are rated P-l or better by Moodys or A-l or better by S&P.
5.12 Leasehold Mortgages.
a. Borrower shall enter into, execute and deliver to Lender a Leasehold
Mortgage, substantially in the form of Exhibit D, securing the repayment
by Borrower of the
Note in each case in which Borrower enters into a Lease. In the event
that Borrower acquires
any rights in real property other than pursuant to a Lease, then Borrower
shall promptly notify
Lender of such acquisition and shall promptly execute and deliver such
mortgages, documents
and other instruments as are reasonably requested by Lender to ensure that
Lender has a first
priority lien on such real property rights.
b. Borrower shall use commercially reasonable efforts to cause each Lease
to
expressly permit the granting of a Leasehold Mortgage with respect to such
Lease by the
Borrower, as applicable to the Lender, and the exercise of the remedies
thereunder by the
Lender.
c. At Lenders election, Borrower shall use commercially reasonable
efforts to
obtain a Waiver and Consent, in the form attached hereto as Exhibit E,
from the lessor of any
real property leased to Borrower as to which lease Borrower is obligated
under Section 5.12(a) to
execute a Leasehold Mortgage.
-18-
5.13 Negative Covenants.
Borrower shall not take any of the actions set forth in this Section 5.13
without the prior written approval of Lender, which approval may be withheld
in Lenders sole and absolute discretion.
a. Sell, lease, convey, transfer or otherwise dispose of its property or
assets now
owned or hereafter acquired except in the ordinary course of business
substantially consistent
with industry practice, except for transfers of Licenses to the Holding
Subsidiaries.
b. Conduct, transact or otherwise engage in, or commit to transact, conduct
or
otherwise engage in, any business or operations other than the acquisition
of the Licenses, the
Build-Out and the operation of the Royal Street System, or any portion
thereof, and the exercise
of rights, the performance of obligations and the conduct of other
activities arising out of or in
connection with or directly related to the foregoing.
c. Enter into any transaction of merger or consolidation, or liquidate,
wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, transfer or
otherwise dispose of, in one transaction or a series of related
transactions, all or substantially all
of its business or property, whether now owned or hereafter acquired, or,
except as expressly
permitted under the terms of this Credit Agreement, acquire by purchase or
otherwise all or
substantially all the business or property of, or stock or other evidence
of beneficial ownership
of, any Person, or acquire, purchase, redeem or retire any shares of its
capital stock now or
hereafter outstanding for value.
d. Create or permit to exist at any time, any mortgage, lien, security
interest,
pledge, charge or other encumbrance against any of its property or assets
now owned or hereafter
acquired, or assign or sell any income or revenues (including accounts
receivable) or rights in
respect thereof except for the Permitted Liens, and shall, at its sole cost
and expense, promptly
take all such action as may be necessary duly to discharge, or cause to be
discharged all such
mortgages, liens, security interests, pledges, charges or other
encumbrances.
e. Become liable, directly or indirectly, contingently or otherwise, for
any
obligation of any other Person by endorsement, guaranty, surety or
otherwise.
f. Enter into any agreement containing any provision that would be violated
or
breached by any borrowing hereunder or by the performance of its
obligations hereunder or
under any document executed pursuant hereto.
g. Own, lease, manage or otherwise operate any properties or assets other
than in
connection with the Build-Out and operation of the Royal Street System, or
incur, create, assume
or suffer to exist any indebtedness or other consensual liabilities or
financial obligations other
than as may be incurred, created or assumed or as may exist in connection
with the Build-Out
and operation of the Royal Street System (including without limitation the
Loans and other
obligations incurred by the Borrower hereunder). Notwithstanding the
foregoing, the Borrower
may invest excess funds in investments permitted under Section 5.11.
-19-
h. Make any distributions under Section 10.2(a) of the LLC
Agreement until Borrower has first paid any accrued interest, if any, and
principal borrowed under this Credit Agreement.
5.14 Further Assurances.
At any time and from time to time, upon the written request of the
Lender, and at the expense of the Borrower, the Borrower shall promptly and
duly execute and deliver such further instruments and documents and take such
further action as the Lender may reasonably determine in its sole discretion
to be necessary or advisable to further carry out and consummate the
transactions contemplated by the Loan Documents and to perfect or protect the
full benefits of this Credit Agreement and the other Loan Documents.
5.15 Independence of Covenants.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default if such action is taken or condition
exists.
Section 6: Events of Default and their Effect
6.1 Events of Default.
Each of the following shall constitute an Event of Default under
this Credit Agreement and the Note (each, an Event of Default):
a.
Failure to Pay.
Borrower fails to pay when due any principal
payment,
interest or other payment required under the terms of the Note that is not
cured within five (5)
days after the date on which such payment is due and payable; or
b.
Breaches of Other Covenants.
Borrower fails to observe or
perform any
covenant, obligation, condition or agreement contained in this Credit
Agreement or any
covenant, obligation, condition or agreement under any of the other Loan
Documents and such
failure shall continue for ten (10) days after notice thereof from Lender
or Borrower shall fail to
transfer the Licenses to Holding Subsidiaries as required in Section 5.4
hereof; or
c.
Bankruptcy or Insolvency Proceedings.
Borrower (i) applies for
or consents
to the appointment of a receiver, trustee, liquidator or custodian of
itself or of all or a substantial
part of its property, (ii) is unable, or admits in writing its inability
to pay its debts generally as
they mature, (iii) makes a general assignment for the benefit of its or
any of its creditors, (iv) is
dissolved or liquidated in full or in part, (v) is adjudicated as a
bankrupt or insolvent (as such
terms may be defined or interpreted under any applicable statute), (vi)
commences a voluntary
case or other proceeding, or an involuntary petition is filed and not
dismissed within sixty (60)
days of filing, seeking liquidation, reorganization or other relief with
respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or consents to
any such relief or to the appointment of or taking possession of its
property by any official in an
-20-
involuntary case or other proceeding commenced against it, or (vii) takes
any action for the purpose of effecting any of the foregoing; or
d.
Representations and Warranties.
Any representation or warranty
made by
Borrower herein or in any other Loan Document is breached and not cured
prior to the expiration
of any applicable cure period or is false or misleading in any material
respect; or
e.
Change in Control.
The occurrence of any Borrower Change in
Control
Event; or
f.
Material Adverse Effect.
The occurrence of any event having a
Material
Adverse Effect on the Borrower; or
g.
Breach of Certain Covenants.
The breach by C9 Wireless, LLC
(or its
successors or assigns) of the terms of Section 4.1(b) of the LLC Agreement;
or
h.
Termination of LLC Agreement.
The LLC Agreement is
terminated in accordance with its terms.
6.2 Remedies Upon Event of Default.
a. If any Event of Default shall occur, then the Lender may do any or all
of the
following: (i) terminate the commitment of the Lender to make Loans to the
Borrower under this
Credit Agreement, (ii) declare all obligations of the Borrower hereunder
and under the Note to be
immediately due and payable, whereupon the obligations of the Borrower
hereunder and under
the Note shall immediately become due and payable without presentment,
demand, protest or
other notice of any kind, all of which are hereby expressly waived,
anything in this Credit Agreement or in any other Loan Document to the contrary notwithstanding,
and (iii) enforce its
rights under any one or more of the Loan Documents in accordance with
Applicable Law.
b. If an Event of Default described in Section 6.1 (c) above shall occur,
then each
of the following shall automatically occur without any further action by
Lender: (i) the
commitment of the Lender to make Loans to the Borrower under this Credit
Agreement shall
immediately terminate, and (ii) all obligations of the Borrower hereunder
and under the Note
shall be immediately due and payable without presentment, demand, protest
or other notice of
any kind, all of which are hereby expressly waived, anything in this Credit
Agreement or in any
other Loan Document to the contrary notwithstanding.
c. Upon the occurrence of any Event of Default and at any time thereafter
so
long as any Event of Default shall be continuing, the Lender may proceed to
protect and enforce
this Credit Agreement, the Note and the other Loan Documents by suit or
suits or proceedings in
equity, at law or in bankruptcy, and whether for the specific performance
of any covenant or
agreement herein contained or in execution or aid of any power herein
granted, or for foreclosure
hereunder, or for the appointment of a receiver or receivers for the
collateral subject to the
applicable Security Agreements and Pledge Agreements or for the recovery of
judgment for the
indebtedness secured thereby or for the enforcement of any other proper,
legal or equitable
remedy available under Applicable Law.
-21-
d. The Borrower shall pay to the Lender forthwith upon demand any
and all expenses, costs and other amounts due hereunder or under the other
Loan Documents before, after or during the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the Lender by reason of the
occurrence of any Event of Default, the enforcement of this Credit Agreement
and the other Loan Documents and/or the preservation of the Lenders rights
hereunder and under the other Loan Documents.
Section 7: Miscellaneous
7.1 Entire Agreement; Amendment.
This Credit Agreement (including the attached Exhibits) constitutes the
sole understanding of the parties with respect to the subject matter hereof,
and supersedes all prior oral or written agreements, commitments or
understandings with respect to such matters. No amendment, modification or
alteration of the terms or provisions of this Credit Agreement shall be
binding unless the same shall be in writing and duly executed by the parties
hereto.
7.2 Successors and Assigns.
This Credit Agreement may not be assigned by Borrower without the consent
of the Lender. Lender may assign any or all of the Loan Documents to (i) an
Affiliate of Lender, or (ii) Bear, Stearns & Co. Inc. or any Affiliate
thereof, without the consent of Borrower, provided that such assignee of
Lender agrees to be bound by all of the terms hereof. No such permitted
assignment shall relieve any party hereto of any liability for a breach of
this Credit Agreement by such party or its assignee. Notwithstanding the
foregoing, Borrower may assign its rights and obligations under this Credit
Agreement to any Holding Subsidiary. This Credit Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs or successors in interest.
7.3 Rights and Remedies.
Unless otherwise provided herein, the rights and remedies of the Lender
hereunder and under the other Loan Documents shall not be mutually exclusive,
and the exercise of one or more remedies by the Lender pursuant to this Credit
Agreement, the other Loan Documents or Applicable Law shall not preclude the
exercise by the Lender of any other remedy.
7.4 Indemnity; Reimbursement of Lender.
a. The Borrower agrees to indemnify, defend and hold the Lender harmless
from and against any and all claims, demands, losses, judgments and
liabilities (including but not limited to, liabilities for penalties) of any
nature (Claims), and to reimburse the Lender for all reasonable costs and
expenses, including but not limited to attorneys fees and expenses, arising
from the Loan Documents or the exercise of any right or remedy granted to the
Lender hereunder other than Claims arising from Lenders gross negligence,
willful misconduct or fraud. In no event shall the Lender be liable for any
matter or thing in connection with the Loan Documents other than to account
for moneys actually received by the Lender in accordance with the terms
hereof.
-22-
b. All indemnities contained in this Section 7.4 and elsewhere in
this Credit Agreement shall survive the expiration or earlier termination of
this Credit Agreement.
7.5 Highest Lawful Rate.
Anything herein to the contrary notwithstanding, the obligations of the
Borrower on the Note shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent that contracting for or receipt thereof would be
contrary to provisions of any law applicable to the Lender limiting the
highest rate of interest which may be lawfully contracted for, charged or
received by the Lender.
7.6 Counterparts.
This Credit Agreement may be executed in one or more counterparts, each
of which shall for all purposes be deemed to be an original and all of which
shall constitute the same instrument.
7.7 Modification and Waiver.
The parties by mutual written agreement may (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein of the other Party or in any document delivered pursuant
hereto by the other Party, or (c) waive compliance with any of the agreements
or conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall only be valid if set forth in an instrument
in writing signed on behalf of such party. No waiver by Lender in any one case
shall require the Lender to give any subsequent waiver.
7.8 Payments on Business Days.
Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day other than a Business Day, such payment may be made
on the next succeeding Business Day and such extension of time shall in such
case be included in computing interest, if any, in connection with such
payment.
7.9 Expenses.
Except as specifically provided herein, each Party hereto shall pay all
costs and expenses incurred by it or on its behalf in connection with this
Credit Agreement and the transactions contemplated hereby, including, without
limiting the generality of the foregoing, fees and expenses of its own
consultants, accountants and counsel. Notwithstanding the foregoing, the
Borrower shall pay, immediately when due, all present and future stamp and
other like duties and applicable taxes, if any, to which this Credit Agreement
may be subject or give rise.
7.10 Notices.
All notices and other communications given to or made upon any party
hereto in connection with this Credit Agreement shall, except as otherwise
expressly herein provided, be
-23-
in writing and mailed via certified mail, sent by Federal Express or
other similar express delivery service for next day delivery or faxed (with a
confirming copy sent by such express delivery service for next day delivery)
to the respective parties, as follows:
|
|
|
If to Lender:
|
|
MetroPCS Wireless, Inc.
|
|
|
8144 Walnut Hill Lane
|
|
|
Suite 800
|
|
|
Dallas, TX 75231
|
|
|
Attention: Vice President, General Counsel and Secretary
|
|
|
Facsimile: 972-860-2682
|
|
|
|
With copies (which shall not constitute notice) to:
|
|
Paul Hastings, Janofsky & Walker, LLP
|
|
|
875 15th Street, N.W.
|
|
|
Twelfth Floor
|
|
|
Washington, DC 20005
|
|
|
Attention: Carl W. Northrop
|
|
|
Facsimile: 202-551-1725
|
|
|
|
|
|
Bear Stearns Corporate Lending Inc.
|
|
|
383 Madison Avenue, 8
th
Floor
|
|
|
New York, New York 10179
|
|
|
Attention: Kevin Cullen
|
|
|
Facsimile: 212-272-9184
|
|
|
|
If to Borrower:
|
|
Royal Street Communications, LLC
|
|
|
PO Box 2365
|
|
|
Southampton, NY 11969
|
|
|
Attention: Robert Gerard
|
|
|
Facsimile: 631-283-9153
|
|
|
|
With a copy (which shall not constitute notice) to:
|
|
Schulte Roth & Zabel LLP
|
|
|
919 Third Avenue
|
|
|
New York, New York 10022
|
|
|
Attention: Paul N. Roth, Michael R. Littenberg
|
|
|
Facsimile: 212-593-5955
|
or in accordance with any subsequent written direction delivered in
accordance with this section from the recipient party to the sending party.
All such notices and other communications shall, except as otherwise expressly
herein provided, be effective upon delivery if delivered by hand; in the case
of certified mail, three (3) Business Days after the date sent; in the case of
any fax, when
-24-
received; or in the case of express delivery service, the day after
delivery of the notice to such service with charges prepaid.
7.11 Severability.
In case any one or more of the provisions contained in this Credit
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect by a court or other authority of competent
jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision hereof and this Credit Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein and, in lieu of each such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Credit Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable, it being the intent of the parties to maintain the benefit of
the bargain for all parties.
7.12 Governing Law.
This Credit Agreement shall be construed in accordance with and governed
by the laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction.
7.13 Venue; Waiver of Jury Trial.
a. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL
COURT OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW
YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE
PROVISIONS OF THIS CREDIT AGREEMENT OF THE
TRANSACTIONS
CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS
A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR
ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT
THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY
NOT BE APPROPRIATE OR THAT THIS CREDIT AGREEMENT, OR ANY SUCH
DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES
HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH STATE
OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH
COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE
SUBJECT MATTER OF SUCH DISPUTE.
b. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS CREDIT AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH
SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
-25-
CREDIT AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS CREDIT
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
7.13.
7.14 Lenders Discretion.
Unless this Credit Agreement shall otherwise expressly provide, Lender
shall have the right to make any decision, grant or withhold any consent, and
exercise any other right or remedy hereunder in its sole and absolute
discretion.
7.15 Capitalized Terms.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the LLC Agreement.
7.16 Headings.
The descriptive headings in this Credit Agreement are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Credit Agreement.
7.17 Amendment and Restatement.
This Credit Agreement amends and restates in its entirety the
Original Agreement and the Existing Credit Agreement, and from and after the
Effective Date hereof, and subject to the terms hereof, the terms and
provisions of the Original Agreement and the Existing Credit Agreement shall
be superseded by the terms and provisions of this Credit Agreement. In
addition to the premises set forth above, the Borrower hereby agrees that (i)
the indebtedness, borrowings, advances and liabilities under the Original
Agreement and the Existing Credit Agreement and the promissory notes executed
and delivered in connection therewith, shall be deemed to be indebtedness and
liabilities of the Borrower outstanding and governed by this Credit Agreement,
and (ii) all liens, encumbrances and security interests securing the
indebtedness and Obligations under the Original Agreement and the Existing
Credit Agreement and related promissory notes executed and delivered in
connection therewith shall continue in full force and effect to secure the
indebtedness and obligations of Borrower under this Credit Agreement, the Note
and the other Loan Documents.
[remainder of page intentionally blank; signature page follows]
-26-
SIGNATURE PAGE TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
IN WITNESS WHER OF, the parties hereto have-signed this Credit
Agreement, or have caused this Credit Agreement to be signed in their
respective names by an officer, hereunto duly authorized, on the
Amendment Effective Date.
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
a Delaware corporation
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Roger D. Linquist
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
President and CEO
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL STREET COMMUNICATIONS, LLC,
|
|
|
|
|
|
|
|
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
ROBERT A. GERARD
|
|
|
|
|
|
|
|
Title:
|
|
CHIEF EXECUTIVE OFFICER
|
Exhibits to
Second Amended and Restated Credit Agreement
by and between
MetroPCS Wireless, Inc.
and
Royal Street Communications, LLC
EXHIBITS:
|
A.
|
|
FORM OF AMENDED AND RESTATED NOTE
|
|
|
B.
|
|
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
|
|
|
C.
|
|
COUNTERPART SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
|
|
|
D.
|
|
LEASEHOLD MORTGAGE
|
|
|
E.
|
|
WAIVER AND CONSENT
|
|
|
F.
|
|
FORM OF AMENDED AND RESTATED PLEDGE AGREEMENT
|
EXHIBIT A
FORM OF NOTE
AMENDED AND RESTATED PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. IT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE BORROWER THAT SUCH
REGISTRATION IS NOT REQUIRED.
,
200___
FOR VALUE RECEIVED, ROYAL STREET COMMUNICATIONS, LLC, a Delaware limited liability company
(the Borrower), promises to pay to the order of METROPCS WIRELESS, INC. (the Holder) at its
principal office at 8144 Walnut Hill Lane, Suite 800, Dallas, TX 75231, or at such other place as
the Holder may from time to time designate in writing, or to its assigns, the principal sum equal
to the Loans, or so much thereof as may be advanced from time to time and remain outstanding,
together with interest on the unpaid principal balance, at the rate of 11% per annum, compounded
quarterly commencing on the last day of the first calendar quarter following the Effective Date.
Interest shall be computed on the basis of a year with three hundred sixty (360) days, and the
actual number of days elapsed. This Note is issued pursuant to the Second Amended and Restated
Credit Agreement dated as of even date herewith by and among Borrower, Holder and certain other
persons that become parties thereto under the terms thereof as the same may be amended from time to
time (Credit Agreement).
1.
Defined Terms.
All capitalized terms not defined herein shall have the meanings
given to them in the Credit Agreement.
2.
Payments.
Payments of interest and principal shall be due and payable at such
times and in such amounts as set forth in the Credit Agreement. All payments made hereunder shall
be made in lawful tender of the United States in immediately available funds on the date on which
such payment shall be due.
3.
Payment at Maturity.
The entire outstanding principal balance of this Note, all
interest accrued thereon, and all other amounts then due and owing under this Note and the Loan
Documents shall be due and payable in full on the Maturity Date.
4.
Default.
The following shall be Events of Default under this Note:
(each, an Event of Default):
a. The failure by Borrower to pay any amount when due under
this Note, which failure shall remain uncured for a period of five (5)
days after delivery of written notice of such failure; or
b. The occurrence of an Event of Default as defined in the Credit
Agreement.
5.
Rights of Holder Upon Default.
Upon the occurrence or
existence of any Event of Default and at any time thereafter during the
continuance of such Event of Default, Holder may declare the entire principal
sum of this Note, together with all unpaid accrued interest thereon, and all
unpaid fees, charges, costs and expenses, if any, owed by Borrower to Holder
hereunder or under any of the other Loan Documents, to be immediately due and
payable. In addition to the foregoing remedies, upon the occurrence or
existence of any Event of Default, Holder may exercise any other right, power
or remedy permitted to it by law, either by suit in equity or by action at law,
or both.
6.
Prepayment.
a.
Prepayment.
Upon compliance with Section 6(b) below,
the Borrower shall have the right, at any time and from time to time, to
prepay this Note, without premium or penalty, either in whole or in part
but limited to increments of no less than $25,000 per prepayment, by
payment of the principal amount of this Note, or portion thereof to be
prepaid, and accrued interest thereon to the date of such prepayment.
Partial or total prepayments of this Note shall first be credited to
accrued interest due, then to the principal balance outstanding.
b.
Notice of Prepayment.
The Borrower shall give notice to
Holder of any prepayment of this Note pursuant to Section 6(a) at least
three Business Days prior to the date fixed for such prepayment
specifying (a) the date of prepayment, and (b) the principal amount to be
prepaid on such date. Notice of prepayment having been so given, the
principal amount of this Note to be prepaid as specified in the notice,
together with accrued interest thereon shall become due and payable on
the prepayment date specified in such notice.
7.
Security.
Borrowers obligations under this Note are secured
by, among other things, an Amended and Restated Security Agreement (Security
Agreement) of even date herewith by and between Borrower and Holder creating a
lien and security interest on Borrowers assets.
8.
Waivers and Rights of Holder.
Except as may be otherwise
expressly set forth in this Note, Borrower hereby (i) waives demand,
presentment for payment, protest, notice of nonpayment, notice of protest,
notice of dishonor, and any and all exemption rights which it holds at law or
in equity with respect to the indebtedness evidenced by this Note, and (ii)
agrees that enforcement by Holder of any security for the performance of the
terms of this Note shall not constitute an election by it of remedies so as to
preclude the exercise of any other remedy available to it.
-2-
9.
Default Rate.
As long as any payment due under this
Note remains past due (whether at the stated maturity, by acceleration or
otherwise) for five (5) days or more, interest under this Note shall accrue on
such overdue payment from the earlier of the due date of such payment at a rate
(the Default Rate) equal to Eighteen Percent (18.00%) per annum, in each case
from the date of such non-payment until such amount is paid in full (whether
after or before judgment).
10.
Payment of Expenses.
From and after the occurrence of an
Event of Default, Borrower shall pay, on demand, all reasonable costs and
expenses of collection of this Note (including, without limitation, reasonable
attorneys fees), whether or not any suit or other legal proceedings shall be
instituted.
11.
Rights Cumulative.
All rights and remedies of Holder under this
Note, under any security given to secure Borrowers performance of the terms of
this Note (including, without limitation, the Security Agreement) and under
applicable law, are cumulative and not alternative. Failure of Holder at any
time to exercise any such rights or remedies shall neither constitute a waiver
of such rights or remedies nor bar the future exercise of any such rights or
remedies.
12.
No Usury.
In the event that any payment under this Note shall
exceed the amount permitted by applicable law, such payment shall be reduced to
the maximum amount permitted by law and the excess shall be applied in reduction
of the principal amount of this Note. In the event that any such excess exceeds
the principal amount, the amount of such excess over the principal amount shall
be refunded to Borrower.
13.
Business Day.
In the event that the date for performance of
any obligation under this Note falls on other than a Business Day, then such
obligation shall be performed on the next succeeding business day.
14.
Successors and Assigns.
The rights and obligations of the
Borrower and the Holder of this Note shall be binding upon and benefit the
successors, assigns, heirs, administrators and permitted transferees of the
parties.
15.
Entire
Agreement; Amendments;Waiver.
This Note, together
with the Credit Agreement, contains the entire agreement between Borrower and
Holder relating to the subject matter hereof. No amendment, modification,
termination, release, surrender or discharge of this Note shall be of any force
or effect except by an agreement in writing signed by Borrower and Holder. No
purported waiver of any of the provisions of this Note shall be valid or
effective unless the same is in writing and signed by the party against whom it
is sought to be enforced.
16.
Assignment by the Borrower.
Except as expressly provided in
the Credit Agreement, neither this Note nor any of the rights, interests or
obligations hereunder may be assigned, by operation of law or otherwise, in
whole or in part, by the Borrower, without the prior written consent of the
Holder.
-3-
17.
Severability.
In case any one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal and
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof.
18.
Notices.
All notices required or permitted under this Note
shall be in writing and shall be sufficient if given in the manner described in
the Credit Agreement.
19.
No Setoff.
Payments on this Note shall be made without
setoff, counterclaim or deduction, and without further notice or demand to
Borrower or any other party.
20.
Records.
Records of all borrowings evidenced by this Note and
all payments and prepayments of the principal hereof and interest hereon and
the respective dates thereof shall be maintained by the Lender, and such
records shall, absent manifest error, be conclusive and binding.
21.
Governing Law.
This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of New York, without regard to the conflicts of law provisions of that
or of any other state.
22.
Time of Essence.
Time is of the essence in the performance of
each and every term and provision of this Note.
23.
Amendment and Restatement.
This Note amends and restates in
their entirety (but does not cancel or extinguish the indebtedness and
liability evidenced by, and shall not constitute a novation of) that certain
Promissory Note dated December 22, 2004 executed by Borrower in favor of
MetroPCS (as successor lender to Holdings) and that certain Promissory Note
dated January 24, 2005 executed by Borrower in favor of MetroPCS (as successor
lender to Holdings), in the original principal amount of the Loan Commitment
Amount as defined in each of the Original Agreement and the Existing Credit
Agreement.
[remainder of page intentionally blank; signature page follows]
SIGNATURE PAGE TO
AMENDED AND RESTATED PROMISSORY NOTE
IN WITNESS WHEREOF, the Borrower has caused this Note to be
issued as of the date first written above.
|
|
|
|
|
|
|
|
|
ROYAL STREET COMMUNICATIONS, LLC,
|
|
|
|
|
|
|
|
|
|
|
|
a Delaware limited liability Company
|
|
|
|
|
|
|
|
|
|
|
|
BY:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
ROBERT A. GERARD
|
|
|
|
|
Title:
|
|
CHIEF EXECUTIVE OFFICER
|
|
|
EXHIBIT B
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this Agreement) executed
on December 15, 2005 as of December 22, 2004, is made between ROYAL STREET
COMMUNICATIONS, LLC, a Delaware limited liability company (Grantor), and
METROPCS WIRELESS, INC., a Delaware corporation (Lender).
RECITALS
A. Grantor and the Lender have entered into that certain Second Amended and
Restated Credit Agreement executed on even date herewith (as the same may be
amended from time to time Credit Agreement) pursuant to which Lender has
agreed, subject to the terms and conditions therein, to make certain loans in an
aggregate amount set forth in the Credit Agreement (the Loans) and Grantor has
executed and delivered an amended and restated promissory note executed on even
date herewith evidencing amounts advanced by the Lender under the Credit
Agreement (the Note).
B. In order to induce the Lender to enter into the Credit Agreement and to
continue to make the Loans, and in consideration therefor, the Grantor has
agreed to execute and deliver this Agreement to amend and restate that certain
Security Agreement, dated as of December 22, 2004 (the Original Security
Agreement), and that certain Security Agreement, dated as of January 24, 2005
(the Existing Security Agreement), each between the Grantor and the Lender (as
successor lender to Holdings), pursuant to which the Grantor has granted to the
Lender a perfected lien on and security interest in all of the Collateral (as
defined in each of the Original Security Agreement and the Existing Security
Agreement) to secure the Obligations (as defined in each of the Original
Security Agreement and the Existing Security Agreement).
C. It is a condition precedent to the making of any further Loans that the
Grantor execute and deliver this Agreement to, among other things, amend and
restate the Original Security Agreement and the Existing Security Agreement on
the terms and conditions set forth herein.
NOW THEREFORE, for and in consideration of the covenants and provisions
set forth herein, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend and
restate the Original Security Agreement and the Existing Security Agreement
and further agree as follows:
1.
Grant of Security Interest.
As security for the Obligations,
the Grantor hereby transfers, conveys, assigns, pledges and grants a
continuing and unconditional security interest to the Lender, and its
successors and assigns, in and to:
a. all equipment (including all Equipment as defined in Section
9-102(a)(33) of the Uniform Commercial Code as in effect from time to
time in the State of New York, such code, together with any other
successor or applicable adoption of the
Uniform Commercial Code in any applicable jurisdiction, the Code),
machinery, vehicles, fixtures, improvements, supplies, office
furniture, fixed assets, all as now owned or hereafter acquired by the
Grantor or in which the Grantor has or hereafter acquires any interest,
and any items substituted therefor as replacements and any additions or
accessions thereto;
b. all goods (including all Goods as defined in Section
9-102(a)(44) of the Code) and all inventory (including all Inventory as
defined in Section 9-102(a)(48) of the Code) of the Grantor, now owned or
hereafter acquired by the Grantor or in which the Grantor has or
hereafter acquires any interest, including but not limited to, raw
materials, scrap inventory, work in process, products, packaging
materials, finished goods, all documents of title, chattel paper and
other instruments covering the same and all substitutions therefor and
additions thereto (all of the property described in this clause (b) being
hereinafter collectively referred to as Inventory);
c. all present and future accounts in which the Grantor has or
hereafter acquires any interest (including all Accounts as defined in
Section 9-102(a)(2) of the Code), contract rights (including all rights
to receive payments and other rights under all equipment and other
leasing contracts) and rights to payment and rights or accounts
receivable evidencing or representing indebtedness due or to become due
the Grantor on account of goods sold or leased or services rendered,
claims, instruments and other general intangibles (including tax refunds,
royalties and all other rights to the payment of money of every nature
and description), including but not limited to, any such right evidenced
by chattel paper, and all liens, securities, guaranties, remedies,
security interests and privileges pertaining thereto (all of the property
described in this clause (c) being hereinafter collectively referred to
as Accounts);
d. all investment property now owned or hereafter acquired by the
Grantor, including, without limitation, all securities (certificated and
uncertificated), partnership, membership or other ownership interests or
profits interest owned by Grantor in or with regard to any corporation,
partnership, limited liability company or other legal entity, securities
accounts, securities entitlements, commodity contracts and
commodity accounts, including, without limitation, any shares,
equity securities, partnership, membership or other ownership interests
owned by Grantor (the Securities);
e. all general intangibles now owned or hereafter acquired by the
Grantor or in which the Grantor has or hereafter acquires any interest,
(including all General Intangibles as defined in Section 9-102(a)(42)
of the Code) including but not limited to, choses in action and causes of
action and all licenses and permits (to the extent the collateral
assignment of such licenses and permits is not prohibited by Applicable
Law), registrations, franchises, corporate or other business records,
systems, designs, software, goodwill, logos, indicia, business
identifiers, inventions, processes, production methods, proprietary
information, know-how, trade-secrets, customer and client lists (to the
extent not prohibited by Applicable Law), and all trade-names,
copyrights, patents, trademarks (including service marks) or patent or
trademark applications and contract rights (including but not limited to
all rights to receive payments and other rights under all equipment and
other leasing contracts, instruments and documents owned or used by the Grantor, and any goodwill relating thereto);
-2-
f. all other property owned by the Grantor or in which the Grantor
has or hereafter acquires any interest, wherever located, and of whatever
kind or nature, tangible or intangible, excluding, except to the extent
set forth in clause j below, any Licenses now or hereafter issued by the
FCC;
g. all insurance policies of any kind maintained in effect by the
Grantor, now existing or hereafter acquired, under which any of the
property referred to in clauses (a) through (f) above is insured,
including but not limited to, any proceeds payable to the Grantor pursuant
to such policies;
h. all monies, cash collateral, chattel paper, checks, notes,
bills of exchange, documents of title, money orders, negotiable
instruments, commercial paper, and other securities, instruments,
documents, deposit accounts, deposits and credits from time to time
whether or not in the possession of or under the control of the Lender;
i. any consideration received when all or any part of the property
referred to in clauses (a) through (h) above is sold, transferred,
exchanged, leased, collected or otherwise disposed of, or any value
received as a consequence of possession thereof, including but not
limited to, all products, proceeds (including all Proceeds as defined
in Section 9-102(a)(64) of the Code), cash, negotiable instruments and
other instruments for the payment of money, chattel paper, security
agreements or other documents, insurance proceeds or proceeds of other
proceeds now or hereafter owned by the Grantor or in which the Grantor
has an interest; and
j. all Proceeds as defined in Section 9-102(a)(64) of the Code of
all Licenses now or hereafter issued by the Federal Communications
Commission or any successor thereto, and solely to the extent if any
permitted by Applicable Law, all such licenses and permits.
The property set forth in clauses (a) through (j) of the preceding
sentence, together with property of a similar nature which the Grantor
hereafter owns or in which the Grantor hereafter acquires any interest, is
referred to herein as the Collateral.
2.
Representations and Warranties.
The Grantor represents,
warrants and agrees that:
a. Grantor has and shall have good and marketable title to all the
Collateral, wherever and whenever acquired, free and clear of any lien
except as permitted by the Credit Agreement, and the Grantor has not
filed, nor is there on record, a financing statement under the Code (or
similar statement or instrument of registration under the law of any
jurisdiction) covering any Collateral except as permitted by the Credit
Agreement;
b. Grantor has the requisite limited liability company power and
authority and legal right to pledge the Collateral to Lender as provided
herein;
-3-
c. Grantor has paid when due all taxes, fees, assessments and other charges
now or hereafter imposed upon the Collateral except for any tax, fee,
assessment or other charge the validity of which is being contested in
good faith by appropriate proceedings and which may not result in any
material impairment of the lien of the Lender on such Collateral and,
except for any tax, fee, assessment or other charges assessed
subsequent to the Lenders foreclosure on such Collateral pursuant to
the Loan Documents;
d. as a result of the execution and delivery of this Agreement and
the filing of any financing statements or other documents necessary to
assure, preserve and perfect the security interest created hereby, and
except as permitted by the Credit Agreement, the Lender shall have a
valid, perfected, enforceable lien on, and a continuing security interest
in, the Collateral, enforceable and superior, subject to Permitted Liens,
as such as against creditors and purchasers (other than purchasers of
Inventory in the ordinary course of business) and as against any owner of
real property where any of the equipment or Inventory is located and as
against any purchaser of such real property and any present or future
creditor obtaining a mortgage or other lien on such real property, and
such lien shall be superior and prior to all other liens on the
Collateral;
e. the chief executive office of the Grantor is at PO Box 2365,
Southampton, New York 11969, and the Grantor maintains its books of
account and records only at such address; and
f. none of the Collateral is held by a third party in any location as
assignee, trustee, bailee, consignee or in any similar capacity.
All representations, warranties and agreements of the Grantor contained in
this Agreement shall survive the execution, delivery and performance of this
Agreement until the termination of this Agreement pursuant to Section 13
hereof.
3.
Covenants.
The Grantor hereby covenants to and agrees with the
Lender that so long as this Agreement shall remain in effect or any
Obligations shall remain unpaid or unperformed:
a. The Grantor shall promptly give written notice to the Lender of
any levy or attachment, execution or other process against any of the
Collateral;
b. The Grantor at its sole cost and expense shall take any and all
actions reasonably necessary or desirable to defend the Collateral against
the claims and demands of all persons other than the Lender and holders of
adverse liens permitted by the Credit Agreement and to defend the security
interest of the Lender in the Collateral and the priority thereof against
any adverse lien of any nature not permitted by the Credit Agreement;
c. The Grantor shall keep all tangible Collateral properly insured in
the manner and form required under the Credit Agreement and in good order
and repair (normal wear and tear excepted) and promptly notify the Lender
of any event causing any material loss, damage or depreciation in value of
the Collateral and of the extent of such loss, damage or depreciation;
-4-
d. The Grantor shall mark any Collateral that is chattel paper with a
legend showing the Lenders lien and security interest therein;
e. The Grantor shall not (i) amend or terminate any contract or other
document or instrument constituting part of the Collateral, except for
transactions in the ordinary course of business substantially consistent
with industry practice; or (ii) voluntarily or involuntarily exchange,
lease, sell, transfer or otherwise dispose of any Collateral, except as
otherwise permitted under the Credit Agreement;
f. The Grantor at all times shall keep accurate and complete records
of the Collateral and, upon the reasonable request of the Lender, shall
furnish the Lender a schedule or schedules, in form and substance
reasonably satisfactory to the Lender, describing such Collateral as the
Lender may require;
g. The Lender, or any of its agents, shall have the right to call at
the Grantors place or places of business during normal business hours at
intervals to be determined by the Lender and without hindrance or delay
after notice to the Grantor, to inspect the Collateral and to inspect,
audit, verify, check and make extracts from the books, records, journals,
orders, receipts, correspondence and other data relating to the
Collateral;
h. If any of the Accounts or General Intangibles of the Grantor
arise out of contracts with the United States or any department, agency
or instrumentality thereof, the Grantor shall promptly notify the Lender
in writing and execute any instruments and take any steps required by
the Lender in order that all monies due and to become due under such
contracts shall be assigned to the Lender and notice thereof given to
the United States Government under the Federal Assignment of Claims Act;
i. Without the prior written consent of the Lender or except as
otherwise permitted by this Agreement or the Credit Agreement, the
Grantor will not (1) pledge, assign or grant a security interest in any
of the Collateral to anyone except the Lender, (2) permit any lien or
encumbrance to attach to any of the Collateral, (3) permit any levy to
be made on the Collateral or (4) permit any financing statement (except
any financing statements executed by Grantor for the benefit of Lender
as secured party) to be on file with respect to any Collateral;
provided
,
however,
that in the event that Lender or its
Affiliates are in breach under the Credit Agreement or the Equipment and
Facilities Lease Agreement, then Borrower shall be permitted to purchase
equipment from a third party seller and to issue such third party seller
a first priority purchase money security interest solely in the acquired
equipment;
j. The Grantor shall pay and discharge when due all taxes, levies
and other charges on the Collateral, unless such tax, levy or other
charge is being contested in good faith and with respect to which
adequate reserves (as determined in accordance with generally accepted
accounting principles) have been established and are being maintained
and unless such tax, levy or other charge is assessed subsequent to the
Lenders foreclosure on such Collateral pursuant to the Loan Documents;
-5-
k. If any Inventory or Equipment shall become in the possession or
control of any third party, the Grantor shall notify such third party of
the security interest created hereby and instruct such third party to
hold such Inventory and Equipment for the Lenders account and subject
to the Lenders instructions. If any Collateral is subject to a
certificate of title at any time, the Grantor shall deliver such
certificate of title to the Lender together with such documents as shall
be necessary to cause the security interest of the Lender to be noted
thereon;
l. If at any time Grantor shall receive any shares of stock or
stock certificates, or any other instruments evidencing Securities,
Grantor shall promptly deliver any such instruments to Lender as
additional security for the Obligations, all of which additional
security shall constitute Collateral. With respect to any Collateral
that is an uncertificated security for purposes of the Code (other
than any uncertificated securities credited to a Securities Account
under the control of the Lender), Grantor shall cause the issuer of such
uncertificated security to either (i) register the Lender as the
registered owner thereof on the books and records of the issuer or (ii)
execute an agreement, in form and substance satisfactory to the Lender
pursuant to which such issuer agrees to comply with the Lenders
instructions with respect to such uncertificated security without
further consent by such Grantor; or
m. Upon the occurrence and during the continuation of an Event of
Default, any dividends or other distributions received by Grantor on
account of the Collateral shall be held in trust by Grantor for the
benefit of the Lender, and Grantor shall immediately notify Lender in
writing, and shall, if Lender so instructs, immediately pay over such
dividends or other distributions to Lender as Collateral.
4.
Events
of Default.
Each of the following shall constitute an
Event of Default hereunder:
a. The occurrence of a default or an Event of Default under the
Note or the Credit Agreement; or
b. [Intentionally Removed].
5.
Remedies
Upon Default.
Upon the occurrence and during the
continuation of an Event of Default, after any applicable cure period, and at
any time thereafter, Lender may (but shall not be required to) take any or all
of the following actions simultaneously or in any order which it may choose:
a. The Lender may from time to time take whatever action at law or
in equity may appear necessary or desirable in order to collect the
monies payable hereunder or secured hereby or to enforce performance and
observance of any obligation, agreement or covenant hereunder.
b. The Lender may foreclose its security interest in any of the
Collateral in any way permitted by law; and the Lender may thereupon, or
at any time thereafter, in its sole discretion, without notice or demand
(except such notice as may be specifically required by law) and with or
without having the Collateral at the time or place of sale,
-6-
sell or otherwise dispose of the Collateral, or any part thereof, at one
or more public or private sales, at any time or place, at such price or
prices and upon such terms, either for cash, credit or future delivery,
as the Lender may elect. In the exercise of such remedy, the Lender may
sell all of the Collateral as a unit even though the sales price thereof
may be in excess of the amounts remaining unpaid on the Obligations. To
the extent not prohibited by Applicable Law, the Lender is authorized at
any sale or other disposition of the Collateral, if it deems it
advisable so to do, to restrict (with respect to any Securities that are
part of the Collateral) the prospective bidders or purchasers thereof to
persons who will represent and agree that they are purchasing for their
own account for investment, and not with a view to the distribution or
resale of any of the Collateral. At any such public sale the Lender may
bid for and become the purchaser of all or any part of the Collateral,
and such sale or sales may be held without demand of performance, notice
of intention to sell, the time or place of sale or any other matter,
except for such notice as may be specifically required by law; and the
purchaser at any such sale or other disposition shall thereafter hold
the Collateral sold absolutely free from any claim or right of the
Grantor of whatsoever kind, including any right of redemption of the
Grantor, all such rights being hereby expressly waived and released by
the Grantor to the extent permitted by law.
c. The Lender may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
The Grantor hereby assents to the passage of a decree for the sale of any
of the Collateral by any court having jurisdiction. In any action
hereunder, the Lender shall be entitled to the appointment of a receiver
without notice, to peaceably take possession of all or any portion of the
Collateral and to exercise such powers as the court shall confer upon the
receiver. Notwithstanding the foregoing, if an Event of Default shall
occur and be continuing, the Lender shall be entitled to apply, without
notice to the Grantor, any cash or cash items constituting Collateral in
its possession to payment of the Obligations.
d. Lender shall have the right, in its sole discretion, to apply for
and have a receiver appointed by a court of competent jurisdiction in any
action taken by Lender to enforce its rights and remedies hereunder in
order to manage, protect and preserve the Collateral and continue the
operation of the business of Grantor and to collect all revenues and
profits thereof and apply the same to the payment of all expenses and
other charges of such receivership, including but not limited to the
compensation of the receiver, until a sale or other disposition of such
Collateral shall be finally made and consummated. Lender and Grantor
acknowledge and agree that in connection with any exercise by the Lender
of its rights hereunder to dispose of or operate under certain of the
Collateral, it may be necessary to obtain the prior consent or approval of
certain governmental authorities. Upon the exercise by Lender of any
power, right, privilege or remedy pursuant to this Agreement which
requires any consent or approval of any governmental authority, Grantor
will execute and deliver, or will cause the execution and delivery of, all
applications, certificates and other documents which may reasonably be
required to obtain such approval or consent. Grantor shall cooperate in
good faith with Lender and any purchaser of the Collateral in obtaining
any such approvals or consents.
-7-
e. The Grantor hereby authorizes and empowers the Lender to sell its
interest in the Collateral in accordance with any Applicable Law. Such
Collateral or any interest therein may be sold upon such terms and in as
many lots as the person conducting the sale may, in his sole discretion,
elect. No readvertisements of any sale shall be required if the sale is
adjourned by announcement, at the time or place set therefor, of the date,
time or place to which the same is to be adjourned.
f. The Lender may, to the extent not prohibited by Applicable Law,
exercise any and all rights of conversion, exchange or subscription and
any other rights, privileges or options pertaining to any of the
Collateral, as if the Lender were the absolute owner thereof, including
(without limitation) the right to exchange, at its discretion, any and all
of the Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of any subsidiary of Grantor.
g. The Lender may take possession of the Collateral pursuant hereto
without legal process and without incurring liability to the Grantor
therefor for the purpose of exercising its rights hereunder.
h. The Lender may (1) notify all or any of the makers, account
debtors or any person obligated to the Grantor for any amount with
respect to an Account or General Intangible (collectively, the
obligors and individually, an obligor) that the Accounts and the
General Intangibles have been assigned to the Lender and to request
confirmation from any obligor of the amount shown by the Accounts or the
General Intangibles to be payable or any other matter stated therein or
relating thereto, and such notices may be given by the Lender in its own
name or in the name of the Grantor; (2) demand, collect or compromise
for any and all sums that are now or may hereafter become due or owing
on any Account or General Intangible; (3) enforce payment of any Account
or General Intangible either in its own name or in the name of the
Grantor; and (4) endorse in the name of the Grantor, and to collect, any
instruments tendered or received in payment of any Account or General
Intangible. The Lender under no circumstances shall be under any duty to
act in regard to any of the foregoing matters. The Grantor appoints the
Lender, and any officer or employee of the Lender as the Lender from
time to time may designate, as attorneys-in-fact for the Grantor, to
sign and endorse in the name of the Grantor, to give notices in the name
of the Grantor and to perform all other actions necessary or desirable
in the reasonable discretion of the Lender to effect these provisions
and carry out the intent hereof. This power, being coupled with an
interest, is irrevocable so long as any Account or General Intangible
assigned to the Lender remains unpaid and this Agreement has not been
terminated in accordance with the terms hereof.
i. At the option of the Lender, the Grantor agrees that, upon
receipt of all checks, drafts, cash and other remittances in payment or
on account of the Accounts or the General Intangibles (collectively,
the payments and individually, a payment), the Grantor will deposit
the same in a special bank account designated by Lender, over which the
Lender has the exclusive right of withdrawal, and will designate with
each such deposit the particular Account or General Intangible upon
which the payment was made. The funds in such special account shall be
held by the Lender as security for the Obligations. The payments shall
be deposited in precisely the form received except for
-8-
the endorsement of the Grantor where necessary to permit collection of
such items, which endorsement the Grantor agrees to make, and which the
Lender is authorized to make on the Grantors behalf. Pending such
deposit, the Grantor agrees that it will not commingle any payments with
any of the Grantors funds or property, but will hold them separate and
apart therefrom and upon an express trust for the Lender until deposit
thereof is made in the special account. The Lender, at any time and from
time to time after the occurrence of an Event of Default, in its sole
discretion, may apply any part of the credit balance in the special
account to the payment of the Obligations.
j. The Lender may exercise any other right or remedy with respect
to any of the Collateral given to secured parties under the applicable
Code or other Applicable Law.
k. Any notification required by Section 9-611 of the Code shall be
deemed reasonably and properly given if mailed, certified or registered
mail, postage prepaid, to the Grantor, at least ten (10) days before any
sale or disposition of any of the Collateral which is subject to the
Code. Any advertisement of the sale or other disposition of such
Collateral shall be deemed to be reasonable if such advertisement is
placed in a newspaper of general circulation in or about the location of
the chief executive offices or principal place of business of Grantor or
the location of the sale at least once in each of the two (2) calendar
weeks immediately preceding the sale.
l. At the request of Lender, the Grantor shall deliver to the
Lender all original and other documents evidencing and relating to the
sale and delivery of Inventory or Accounts, including but not limited
to, all original orders, invoices and shipping receipts. The Grantor
shall also furnish to the Lender, promptly upon the request of the
Lender, such reports, reconciliations and aging balances regarding
Accounts as the Lender may request from time to time.
All of Lenders rights and remedies hereunder, under the Note and under
any of the other Loan Documents shall be cumulative and not exclusive, and
shall be enforceable alternatively, successively or concurrently as Lender
may, in its sole discretion, deem expedient. Lender shall have no obligation
to preserve rights in the Collateral or marshal any of the Collateral for the
benefit of any person or entity. The Obligations are recourse obligations.
Accordingly, the exercise of Lenders remedies hereunder, or any of them,
including, without limitation, foreclosure on the Collateral, shall not result
in a satisfaction or discharge of the Obligations or otherwise limit Lenders
ability to exercise its other remedies hereunder.
6.
Application
of Proceeds.
Any proceeds received from the
exercise of any remedy hereunder, after deducting therefrom any and all costs
and expenses reasonably incurred in securing possession of any Collateral, in
shipping and storing the Collateral, in preparing the Collateral for sale or
otherwise dealing with Collateral prior to any sale or other disposition
thereof and in connection with the sale or other disposition thereof
(including, without limitation, reasonable attorneys and accountants fees
and brokers commissions), shall be applied toward the payment of any and all
amounts due under or with respect to the Obligations, including interest, and
all other costs and expenses reasonably incurred by the Lender in connection
with this Agreement which are then due and payable, in such order and amounts
as the Lender, in its
-9-
sole discretion, may elect. If such net proceeds should be insufficient
to
pay
all of the amounts due under or with respect to the Obligations,
including interest, that are due and payable and all such other costs and
expenses reasonably incurred by the Lender, and a deficiency shall result,
the Grantor shall nevertheless remain liable for such deficiency; and if such
net proceeds should be more than sufficient to pay the same, such surplus
shall be accounted for and, if any Obligations remain outstanding but are not
yet due and payable, retained by the Lender, who shall hold the same as
security for the Obligations; and if no Obligations remain outstanding, such
surplus shall be paid over to the Grantor or whomever a court of competent
jurisdiction shall determine to be entitled thereto.
7.
Powers of Attorney.
The Grantor hereby irrevocably appoints
the Lender (and any officer or agent of the Lender) as its true and lawful
attorney-in-fact, with power of substitution for and in the name of the Lender
or otherwise, for the use and benefit of the Lender, effective upon the
occurrence and during the continuance of an Event of Default and to the extent
not prohibited by Applicable Law: (i) to receive, endorse the name of the
Grantor upon and deliver any notes, acceptances, checks, drafts, money orders
or other evidences of payment that may come into the possession of the Lender
with respect to the Collateral; (ii) to cause the Grantors mail to be
transferred to the Lenders own offices and to receive and open all mail
addressed to the Grantor for the purposes of removing any such notes,
acceptances, checks, drafts, money orders or other evidences of payment; (iii)
to demand, collect and receive payment in respect of the Collateral and to
apply any such payments directly to the payment of the Obligations; (iv) to
receive and give discharges and releases of all or any of the Collateral; (v)
to commence and prosecute any and all suits, actions or proceedings at law or
in equity in any court of competent jurisdiction, to collect or otherwise
realize on all or any part of the Collateral or to enforce any rights in
respect thereof; (vi) to sign the name of the Grantor on any invoice or bill
of lading relating to any of the Collateral; (vii) to send verification of any
Accounts to any account debtor or customer; (viii) to notify any account
debtor or other obligor of the company with respect to any Collateral to make
payment to the Lender; (ix) to settle, compromise, compound, adjust or defend
any actions, suits or proceedings relating or pertaining to all or any of the
Collateral; (x) to take any action for purposes of carrying out of the terms
of this Agreement; (xi) to enforce all of the Grantors rights and powers
under and pursuant to any and all agreements with respect to the Collateral;
and (xii) generally to sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Collateral, and to do all
other acts and things necessary to carry out this Agreement, as fully and
completely as though the Lender were the absolute owner of the Collateral for
all purposes; provided, however, that nothing herein contained shall be
construed as requiring or obligating the Lender to make any commitment or to
make any inquiry as to the nature or sufficiency of any payment received by
the Lender, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no action
taken by the Lender or omitted to be taken with respect to the Collateral or
any part thereof shall give rise to any defense, counterclaim or offset in
favor of the Grantor or to any claim or action against the Lender. It is
understood and agreed that the power of attorney granted to the Lender for the
purposes set forth above in this Section 7 is coupled with an interest and is
irrevocable and the Grantor hereby ratifies all actions taken by its
attorney-in-fact by virtue hereof. The provisions of this Section 7 shall in
no event relieve the Grantor of any of its obligations hereunder or under any
of the other Loan Documents with respect to the Collateral or any part thereof
or impose any obligation on the Lender to proceed in
-10-
any particular manner with respect to the Collateral or any part
thereof, or in any way limit the exercise by the Lender of any other or
further right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any of the other Loan Documents, by law or otherwise.
8.
Collateral Reserve Account.
If requested by the Lender to do so
on or at any time after an Event of Default has occurred and during its
continuance, Grantor shall establish and thereafter maintain with the Lender or
its designee a demand deposit account for the concentration and collection of
proceeds of certain Collateral (the Collateral Reserve Account) into which the
Grantor shall transfer and deliver all cash, checks, drafts, items and other
instruments for the payment of money which it now has or may at any time
hereafter receive in full or partial payment for the Collateral or otherwise as
proceeds of the Collateral and, pending such transfer and delivery, Grantor
shall be deemed to hold same in trust for the benefit of the Lender. Grantor
shall not be entitled to withdraw funds on deposit in the Collateral Reserve
Account after its inception without the prior written consent of the Lender;
provided, however, that, at any time during which collected funds exist on
deposit in the Collateral Reserve Account, the Lender may withdraw such
deposits, or any portion thereof, therefrom, for application against the
Obligations in such manner as the Lender, in its sole discretion, may determine.
9.
Collections.
Upon the occurrence and during the continuance of
an Event of Default, the Lender may, in its sole discretion, in its name or in
the name of the Grantor, or otherwise, (a) demand, sue for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for, or make any compromise or settlement deemed desirable with respect
to any of the Collateral, but shall be under no obligation to do so, or (b)
extend the time of payment, arrange for payment in installments, or otherwise
modify the term of, or release, any of the Collateral, without thereby incurring
responsibility to, or discharging or otherwise affecting any liability of, the
Grantor, other than to discharge the Grantor in so doing with respect to
liabilities of the Grantor to the extent that the liabilities are paid or
repaid. After the occurrence and during the continuance of an Event of Default,
any money, checks, notes, bills, drafts, or commercial paper received by the
Grantor shall be held in trust for the Lender and any other Lender having rights
thereto senior to the Lender and shall be promptly turned over to the Lender or
any other Lender having rights thereto senior to the Lender as their interest
shall appear. The Lender may make such payments and take such actions as the
Lender, in its sole discretion, deem necessary to protect its security interest
in the Collateral or the value thereof, and the Lender is hereby unconditionally
and irrevocably authorized (without limiting the general nature of the authority
hereinabove conferred) to pay, purchase, contest or compromise any liens which
in the judgment of the Lender appear to be equal to, prior to or superior to its
security interest in the Collateral and any liens not expressly permitted by
this Agreement, the Credit Agreement or the other Loan Documents.
10.
Expenses.
The Grantor shall pay, when due, any and all
reasonable fees, taxes or (other than taxes based on the income of Lender) other
charges imposed in connection with the granting of the security interests
hereunder including, without limitation, any fees imposed in connection with
recordation of instruments necessary or desirable in order to reflect,
effectuate or release such security interests.
-11-
11.
Notices.
All notices and other communications given to or made
upon any party hereto in connection with this Agreement shall, except as
otherwise expressly herein provided, be in writing and mailed via certified
mail, sent by Federal Express or other similar express delivery service for next
day delivery, faxed (with a confirming copy sent by such a express delivery
service for next day delivery) or hand delivered to the respective parties to
their respective addresses set forth or referenced in Section 7.10 of the Credit
Agreement, or in accordance with any subsequent written direction delivered in
accordance with this section from the recipient party to the sending party. All
such notices and other communications shall, except as otherwise expressly
herein provided, be effective upon delivery if delivered by hand; in the case of
certified mail, three Business Days after the date sent; in the case of any fax,
when received; or in the case of express delivery service, the day after
delivery of the notice to such service with charges prepaid.
12.
Assignability and Parties in Interest.
This Agreement shall
not be assignable by Grantor without the written consent of Lender. Lender
shall have the right to assign this Agreement without Grantors consent to any
person at Lenders sole discretion, including to Bear, Stearns & Co. Inc. or any
Affiliate thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
13.
Termination.
This Agreement shall terminate and the Security
Interest shall be released upon the earliest to occur of (i) the payment and
satisfaction in full of the Note and all of the Obligations relating to the
Note; or (ii) the mutual agreement of Grantor and Lender.
14.
Certain Waivers; Grantor Not Discharged.
The Grantor
expressly and irrevocably waives (to the extent permitted by Applicable Law)
presentment, demand of payment and protest of nonpayment in respect of its
Obligations under this Agreement. The obligations and duties of the Grantor
hereunder are irrevocable, absolute, and unconditional and shall not be
discharged, impaired or otherwise affected by (a) the failure of the Lender to
assert any claim or demand or to enforce any right or remedy against the Grantor
or any waiver, consent, extension, indulgence or other action or inaction in
respect thereof, (b) any extension or renewal of any part of the Obligations,
(c) any rescission, waiver, amendment or modification of any of the terms or
provisions of the Credit Agreement or any of the Loan Documents, (d) the release
of any liens on or security interests in any part of the Collateral or the
release, sale or exchange of or failure to foreclose against any security held
by or for the benefit of the Lender for payment or performance of the
Obligations, (e) the bankruptcy, insolvency or reorganization of the Grantor or
any grantee or any other persons, (f) the invalidity or unenforceability of the
Credit Agreement or any of the Loan Documents, (g) any change, restructuring or
termination of the corporate structure or existence of the Grantor or any
grantee or any restructuring or refinancing of all or any portion of the
Obligations, or (h) any other event which under law would discharge the
obligations of a surety.
15.
Transfer of Security Interest.
The Lender may transfer to any
other person all or any part of the liens and security interests granted hereby,
and all, or any part of the Collateral which may be in the Lenders possession
after the occurrence and during the continuance of an Event of Default or, if to
a successor Lender in accordance with the Credit Agreement, at any time. Upon
such transfer, the transferee shall be vested with all the rights and powers of
the Lender hereunder with respect to such of the Collateral as is so
transferred, but, with respect to
-12-
any of the Collateral not so transferred, the Lender shall retain all of their
rights and powers (whether given to it in this Agreement, or otherwise). The
Lender may, at any time, assign all or any portion of its rights as the Lender
hereunder to any person in the Lenders discretion, including without
limitation Bear Stearns & Co. Inc. or any Affiliate thereof, and upon notice
to the Grantor, but without any requirement for consent or approval by or from
Grantor, and any such assignment shall be valid and binding upon the Grantor,
as fully as it had expressly approved the same.
16.
Indemnity; Reimbursement of Lender.
The Grantor agrees to
indemnify, defend and hold the Lender harmless from and against any and all
claims, demands, losses, judgments and liabilities (including but not limited
to, liabilities for penalties) of any nature, and to reimburse the Lender for
all reasonable costs and expenses, including but not limited to attorneys fees
and expenses, arising from this Agreement or the exercise of any right or remedy
granted to the Lender hereunder, except to the extent such claims arise out of
Lenders gross negligence, willful misconduct or fraud. In no event shall the
Lender be liable for any matter or thing in connection with this Agreement other
than to account for moneys actually received by the Lender in accordance with
the terms hereof. All indemnities contained in this Section 16 and elsewhere in
this Agreement shall survive the expiration or earlier termination of this
Agreement.
17.
No Liability for Collateral.
Beyond the exercise of
reasonable care in the custody of any Collateral, the Lender shall not, under
any circumstance or in any event whatsoever, have any liability for any part of
the Collateral, nor shall the Lender have any liability for any error or
omission or delivery of any kind incurred in the good faith settlement,
collection or payment of any of the Collateral or any monies received in payment
therefor or for any damages resulting therefrom, nor shall this Agreement impose
upon the Lender any obligation to perform any obligation with respect to the
Collateral. The costs of collection, notification and enforcement, including
but not limited to, attorneys fees and out-of-pocket expenses, shall be borne
solely by the Grantor, whether the same are incurred by the Grantor or the
Lender.
18.
Definitions.
Any capitalized terms used herein which are not
defined herein shall have the meaning ascribed to such term in the Credit
Agreement.
19.
Governing Law.
This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of New York,
without regard to its conflict of laws principles, except to the extent that the
perfection and the effect of perfection or non-perfection of any security
interests created hereby is governed by the laws of a jurisdiction other than
the State of New York.
20.
Complete Agreement.
This Agreement and the Credit Agreement
contain the entire agreement between the parties hereto with respect to the
transactions contemplated herein and, except as provided herein, supersede all
previous oral and written and all contemporaneous oral negotiations,
commitments, writings and understandings.
21.
Amendments and Waivers.
This Agreement may be amended only by a
writing signed by the Grantor and Lender. No delay or omission on the part of
any party hereto in exercising any right hereunder shall operate as a waiver of
such right or any other right
-13-
hereunder or operate to constrain the rights of any other parties hereunder.
No waiver of any one right shall operate as a waiver of any subsequent right.
22.
Interpretation.
The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
23.
Continuing Lien.
It is the intent of the parties hereto that
(a) this Agreement shall constitute a continuing agreement as to any and all
future, as well as existing transactions, between the Grantor and the Lender
under or in connection with the Notes, and (b) the security interest provided for
herein shall attach to after-acquired as well as existing Collateral and the
Obligations covered by this Agreement shall include any future advances under or
in connection with the Credit Agreement.
24.
Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one contract, and shall become effective when
copies hereof which, when taken together, bear the signatures of each of the
parties hereto shall be delivered or mailed to the Lender.
25.
Severability.
If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable in any material respect, such provision
shall be replaced with a provision which is as close as possible in effect to
such invalid, illegal or unenforceable provision, and still be valid, legal and
enforceable, and the validity, legality and enforceability of the remainder of
this Agreement shall not in any way be affected or impaired thereby, unless the
parties otherwise so provide.
26.
Venue; Waiver of Jury Trial.
a. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURT
OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW YORK SOLELY IN
RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF
THIS AGREEMENT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND
HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF
OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH
ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN
SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS
AGREEMENT, OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS,
AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A STATE OR
FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER
OF SUCH DISPUTE.
-14-
b. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 26(b).
27.
Further Assurances.
Grantor agrees, from time to time, at its
expense, to do such further things, to execute, acknowledge, deliver and cause
to be duly filed all such further instruments and documents and take all such
actions as the Lender may from time to time reasonably request for the better
assuming and preserving of the security interests and rights and remedies
created hereby, including, without limitation, the execution and delivery of
such financing statements or continuation statements, and amendments thereto, as
may be necessary or desirable, or as Lender may request in order to perfect and
preserve the security interests granted hereby. Grantor hereby authorizes Lender
or its agent to file such financing statements and/or such continuation
statements and amendments thereto relating to all or any part of the Collateral
without its signature, where permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement covering the
collateral granted hereby or any part thereof shall be sufficient as a financing
statement where permitted by law.
28.
Amendment and Restatement.
This Agreement amends and restates
in their entirety the Original Security Agreement and the Existing Security
Agreement, and from and after the Effective Date hereof, and subject to the
terms hereof, the terms and provisions of the Original Security Agreement and
the Existing Security Agreement shall be superseded by the terms and provisions
of this Agreement. The Grantor hereby agrees that (i) the liens and security
interest granted by Grantor under the Original Security Agreement and the
Existing Security Agreement shall be deemed to be liens and security interests
securing the indebtedness, Obligations, borrowings, advances and liabilities
under the Credit Agreement and shall remain outstanding and governed by this
Agreement, and shall not constitute a novation, and (ii) all liens and security
interests securing the indebtedness, Obligations, borrowings, advances and
liabilities under the Original Agreement and the Existing Credit Agreement shall
continue in full force and effect to secure the indebtedness and Obligations of
Borrower under the Credit Agreement, the Note and the other Loan Documents.
[remainder of page intentionally blank; signature page follows]
-15-
SIGNATURE PAGE TO
AMENDED AND RESTATED SECURITY AGREEMENT
IN WITNESS WHEREOF, the Grantor and Lender have caused this
Agreement to be executed as of the date first above written.
|
|
|
|
|
|
|
|
|
GRANTOR:
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL STREET COMMUNICATIONS, LLC,
|
|
|
|
|
|
|
|
|
|
|
|
a Delaware limited liability, company
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
ROBERT A. GERARD
|
|
|
|
|
Title:
|
|
CHIEF EXECUTIVE OFFICER
|
|
|
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.,
|
|
|
|
|
|
|
|
|
|
|
|
a Delaware corporation
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Roger D. Linquist
|
|
|
|
|
Title:
|
|
President and CEO
|
|
|
EXHIBIT C
FORM OF COUNTERPART SIGNATURE PAGE
COUNTERPART SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
1.
Agreement to be Bound.
The undersigned (the Holding Subsidiary)
hereby agrees to be bound by all of the terms and conditions of that certain
Amended and Restated Credit Agreement, executed on December 15, 2005 as of the
December 22, 2004, by and between MetroPCS Wireless, Inc. and Royal Street
Communications, LLC, and the Holding Subsidiaries that from time to time become
parties thereto (as the same may be amended from time to time, the Credit
Agreement).
2.
Capitalized Terms.
All capitalized terms used herein shall have the
meanings given to them in the Credit Agreement; provided that all references to
Borrower in the Credit Agreement and in this Counterpart Signature Page (this
Agreement) shall mean Borrower and Holding Subsidiary.
3. [Intentionally Deleted].
4.
Notice Address.
The notice address of the undersigned for purposes of
Section 7.10 of the Credit Agreement is as follows:
5.
Representations and Warranties.
Holding Subsidiary hereby
represents and warrants to Lender as follows:
a. Holding Subsidiary is [a limited liability company] [corporation]
duly organized, validly existing and in good standing under the laws of
the State of Delaware with all requisite power and authority to own its
properties and conduct its business as now being conducted, and is duly
qualified to do business as a foreign limited liability company in good
standing in each jurisdiction where the ownership of its properties or
the conduct of its business makes such qualification necessary, except
in those jurisdictions where failure so to qualify will not permanently
impair title to a material amount of its properties or its rights to
enforce in all material respects contracts against others or expose it to
substantial liabilities in such jurisdictions.
b. Holding Subsidiary has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement, the
Credit Agreement and the
other Loan Documents to which it is a party. Holding Subsidiary has taken all action
necessary to authorize this Agreement and the other Loan Documents to which it is a party. This
Agreement, the Credit Agreement and the other Loan Documents have been duly authorized, executed
and delivered by Holding Subsidiary and are the legal, valid and binding obligations of Holding
Subsidiary enforceable in accordance with their terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors rights generally or (ii) general principles of equity.
c. Neither the execution, delivery and performance of this Agreement or the other Loan
Documents by Holding Subsidiary nor the consummation by Holding Subsidiary of the
transactions contemplated herein or therein will, with or without the giving of notice or the
lapse of time, or both, (i) violate any Applicable Laws to which Holding Subsidiary is
subject, (ii) conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, the organizational documents of Holding Subsidiary, any
license or permit of such Holding Subsidiary, or any material contract to which Holding
Subsidiary is a party or by which Holding Subsidiary may be bound or affected, or (iii)
except with respect to the exercise of certain of Lenders remedies under the Loan
Documents, require Holding Subsidiary to obtain any authorization, consent, approval or
waiver from, or to make any filing with, any Governmental Entity or non-governmental third
party.
d. There is no Litigation pending against Holding Subsidiary, or, to the knowledge of
Holding Subsidiary, a basis for Litigation or threatened Litigation against Holding
Subsidiary which (a) seeks to enjoin or obtain damages in respect of the consummation of the
transactions contemplated hereby or (b) has or could have a Holding Subsidiary Material
Adverse Effect.
e. Holding Subsidiary has complied and presently is in compliance with all Applicable
Laws except to the extent that failure by Holding Subsidiary to comply with Applicable Laws
does not and will not have a Holding Subsidiary Material Adverse Effect.
f. [Intentionally Deleted].
g. Holding Subsidiary is not in material default under or in material violation in the
performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any provision of its constitutive documents or contained in any other agreement
or instrument to which it is a party or by which it is bound or to which any of its
properties is subject, and Holding Subsidiary is not in material violation of any statute,
order, rule or regulation of any court or governmental agency or body having jurisdiction
over it or any of its properties.
h. As of the date of this Agreement, Holding Subsidiary has no indebtedness outstanding except
its obligations under the Loan Documents and the indebtedness permitted pursuant to the terms of
Loan Documents; none of such Indebtedness is in
-2-
default.
i. Holding Subsidiary holds the License(s) listed on
Schedule 1
hereto.
j. No representation or warranty of the Holding Subsidiary contained in this Agreement, the
Credit Agreement or the other Loan Documents contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements contained herein or
therein not materially misleading. There is no fact known to the Holding Subsidiary which
materially adversely affects its business, operations, property, assets or condition (financial or
otherwise) which has not been disclosed herein or in such other documents, certificates and
statements furnished to the Lender for use in connection with the transactions contemplated
hereby.
IN
WITNESS WHEREOF, the undersigned hereby executes the Credit Agreement as of
.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a Delaware [limited liability company] [corporation]
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
-3-
Schedule 1
Holding Subsidiary Licenses
-4-
EXHIBIT D
FORM OF LEASEHOLD MORTGAGE
THIS LEASEHOLD MORTGAGE
(Leasehold Mortgage) is made as of the
day of
, by and between
ROYAL STREET COMMUNICATIONS, LLC,
a
Delaware limited liability company (Grantor) and
METROPCS WIRELESS, INC.,
a
Delaware corporation (Lender).
RECITALS:
A. Pursuant to the terms of that certain Second Amended and Restated Credit Agreement,
executed on December 15, 2005 as of December 22, 2004 (as the same may be amended from time
to time, the Credit Agreement) by and among Lender, Grantor and certain other parties
thereto, Grantor agreed to grant to the Lender a leasehold mortgage in any and all leases
that Grantor enters into from time to time.
B. Pursuant to that certain Lease (the Lease) dated
, by and between
Grantor and
(Landlord), Grantor has a leasehold interest (the
Leasehold) in and to that certain parcel of real property
located in
and more
particularly described on Exhibit A (the Land, and together with all improvements located thereon
(Improvements), and all the estate, right, title, interest, and claim, either at law or in
equity, of the Grantor, of, in, to, or out of such parcel and/or Improvements, the Premises).
C. Grantor desires to grant this Leasehold Mortgage for the benefit of Lender on
the terms and conditions set forth herein.
1. GRANTING CLAUSES
1.1 For and in consideration of the sum of $10.00 and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in order to secure the obligations of
the Grantor under the Credit Agreement and the Promissory Note dated as of
, 200___ made by Grantor for the benefit of Lender (the Note) (collectively,
Obligations), Grantor does hereby grant, bargain, sell, convey, assign, transfer and set over
unto Lender, and its successors and assigns, with power of sale and right of entry and possession,
the following (collectively, the Mortgaged Property):
1.1.1. the Leasehold and all other rights of Grantor in, to and under the Lease;
1.1.2. the right, title and interest of Grantor under all leases, licenses,
concession agreements or other agreements for use or occupancy of any portion of the Land or
the Improvements, and any extensions, renewals or modifications thereof (Leases);
1.1.3. all contracts from time to time executed by Grantor or its agent on its behalf
relating to the ownership, construction, maintenance, repair, operation, occupancy, leasing,
sale or financing of the Premises or any part thereof (collectively, Contracts);
1.1.4. all proceeds from any compensation, awards, damages, rights of action, payments
and proceeds arising from any condemnation or taking of the Premises or any part thereof by
any governmental entity or other person having power and authority to condemn or take by
eminent domain, and any conveyance or transfer of any portion of the Premises in lieu of such
condemnation or taking;
1.1.5. all payments, proceeds, settlements or other compensation heretofore or hereafter
made, including any interest thereon, and the right to receive the same, from any and
all insurance policies covering the Mortgaged Property or any portion thereof; and
1.1.6. all proceeds and products of any and all of the foregoing.
1.2.
Habendum.
TO HAVE AND TO HOLD the Mortgaged Property unto the Lender and its
successors and assigns forever, for and during all the rest, residue and remainder of the
unexpired term of the Lease and all renewals and extensions thereof.
1.3.
Purpose
. This conveyance is made for the purpose of securing the following:
1.3.1. the debt evidenced by the Note, together with interest on such principal amount
and any and all renewals and/or extensions of such indebtedness;
1.3.2. payment, performance and observance by Grantor of all the covenants, agreements,
terms, conditions and provisions of the Credit Agreement, the Note, this Leasehold Mortgage,
and the other Loan Documents.
1.4.
Reconveyance.
Should the obligations secured by this Leasehold Mortgage be paid
and performed in full, then this Leasehold Mortgage shall be released of record and
Lender shall transfer and deliver up to Grantor any property at the time subject to this
Leasehold Mortgage which may then be in Lenders possession.
2. REPRESENTATIONS AND WARRANTIES
Grantor hereby represents and warrants that Grantor is the owner of legal title to the
Leasehold, and is lawfully possessed of the Leasehold, free from all liens, charges and
encumbrances except the Lease, this Leasehold Mortgage and any rights held under statutes by
providers of services in connection with the Improvements (the Permitted Encumbrances). Grantor
has the right and authority to convey the Leasehold and does hereby warrant specially, and agrees
to defend, the Leasehold and the title thereto, whether now owned or hereafter acquired, against
all claims and demands by any person.
-2-
3. AFFIRMATIVE COVENANTS
3.1. The Grantor, for itself and its successors and assigns, covenants and agrees as part
of this Leasehold Mortgage, as follows:
3.1.1. Grantor shall (i) promptly make when due and payable all payments required to be
made by Grantor under the Lease, (ii) perform all other covenants and obligations required to
be performed by Grantor under the terms of the Lease and (iii) pay all taxes and assessments
and all other charges of every nature that may be assessed, levied or imposed against Grantor
or the Mortgaged Property.
3.1.2. Grantor shall maintain the Premises in good and safe order and
condition (consistent with the best practices of similarly situated companies) and in a
rentable and tenantable state of repair, and will make or cause to be made, as and when
necessary, all repairs, renewals and replacements, structural and nonstructural, exterior and
interior, ordinary and extraordinary.
3.1.3. In the event the ownership of the Leasehold becomes vested in a person other than
the Grantor, the Lender may, without notice to the Grantor, deal with such successor or
successors in interest with reference to this Leasehold Mortgage and the indebtedness
secured hereby in the same manner as with the Grantor, and any extension of the time of the
payment of the indebtedness or any other modification of the terms of the indebtedness at the
instance of the then owner shall not relieve the Grantor of its liability on the Note or the
Credit Agreement or from the performance of any of the covenants contained herein whether
such extension or modification be made with or without the consent of the Grantor.
3.1.4. Grantor shall keep proper books of record and account relating to the Mortgaged
Property. Grantor shall permit representatives of the Lender to visit and inspect
the Premises at any reasonable time after delivery by Lender of prior written notice.
3.1.5. Grantor shall promptly notify Lender in writing of any event of default
by Grantor in the performance or observance of any of the terms, covenants or conditions on
the part of Grantor to be performed under the Lease. Grantor shall promptly deliver to
Lender copies of any notices to be given by the Grantor to the Landlord pursuant to the
Lease simultaneously with the giving of such notices by the Grantor.
3.1.6. Grantor shall (i) notify Lender in writing within five (5) days of the receipt by
Grantor of any notice claiming that Grantor is in default in the performance or observance
of any of the terms, covenants or conditions to be performed or observed by Grantor under
the terms of the Lease, and (ii) promptly cause a copy of each such notice received by the
Grantor to be delivered to the Lender.
3.1.7. If Grantor shall fail to make any payment required to be made under the Lease as
and when required or shall fail to perform or observe any other term, covenant, agreement or
obligation required to be performed or observed by the Grantor under the Lease, Lender shall
have the right, at its option, to make any such payment or to perform any other act
-3-
or take such actions as may be appropriate to cause such other term, covenant, agreement or
obligation to be promptly performed or observed on behalf of Grantor to the end that Grantors
rights under the Lease be kept unimpaired and free from default. Grantor shall reimburse Lender on
demand for moneys expended in connection with Lenders exercise of its rights as provided in this
subsection, with interest at the rate set forth in the Credit Agreement for advances thereunder,
and the same shall be secured by this Leasehold Mortgage.
4. NEGATIVE COVENANTS
4.1. Grantor shall not create or suffer to exist any lien, charge or
encumbrance on the Mortgaged Property or any part thereof, whether superior or subordinate to
the lien of this Leasehold Mortgage, except for (i) the Lease, (ii) the lien of this
Leasehold Mortgage, (iii) the Permitted Encumbrances, and (iv) liens for taxes and other
assessments not delinquent or which are being contested in good faith by appropriate
proceedings.
4.2. Grantor shall not, without the prior written consent of Lender, (i) sell, assign,
transfer or convey all or any portion of the Mortgaged Property, or any interest
therein, either voluntarily or by operation of law or (ii) Grantor shall not modify, release,
surrender, or terminate the Lease.
5. CONDEMNATION
5.1. In the event of any proceedings, negotiations or receipt of notice of
any permanent or temporary condemnation or taking of all or any portion of the Premises by
eminent domain, alteration of the grade of any street, or other injury to or decrease in the
value of the Premises by any public or quasi-public authority or corporation (a Taking),
Grantor shall notify Lender promptly in writing of such Taking.
5.2. Lender is hereby authorized, at its option, to appear in any
condemnation proceedings affecting the Premises. Grantor shall not settle or compromise
any claim in connection with any taking through condemnation without the prior written
consent of Grantor, which consent shall not be unreasonably withheld, conditioned or delayed.
5.3.
In the event of a Taking, all proceeds, awards or other compensation for
such Taking that are payable to Grantor (Awards) are hereby assigned and shall be payable
by the authority in question directly to Lender for application as set forth herein. Lender
shall have the right to retain and apply such Awards to the payment of the Obligations, to
restoration of the property not taken or damaged, or both.
6. DAMAGE OR DESTRUCTION
6.1. Grantor shall promptly give notice to Lender upon obtaining knowledge that any
material portion of the Premises is damaged or destroyed by any casualty. Grantor shall restore,
repair, replace or rebuild the Premises to substantially the condition the Premises were in
immediately prior to such damage or destruction.
-4-
6.2. If an Event of Default shall have occurred and be continuing at the time of any damage
or destruction the insurance proceeds shall be turned over to Lender, and Lender, at its option,
may apply such proceeds to the payment of the Obligations or make such proceeds available to pay
restoration costs.
7. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute an Event of
Default:
7.1. If Grantor shall fail to pay any sum required under this Leasehold Mortgage,
the Credit Agreement or the Note on the date such sum is due and payable, and such failure
shall continue uncured for five (5) business days following the giving of notice of such
failure by Lender to Grantor.
7.2. If Grantor shall fail to pay any sum required under the Lease or if Grantor
shall fail to perform any other covenant or obligation to be performed by Grantor under the
terms of the Lease after the expiration of all applicable cure periods thereunder.
8. REMEDIES
8.1. Upon occurrence of any Event of Default, (i) the entire principal balance,
all unpaid interest accrued thereon and all other sums secured by this Leasehold Mortgage
shall at the option of Lender become immediately due and payable without presentment, notice,
protest or demand, and/or (ii) Lender may pursue any and all remedies available under the
Note, this Leasehold Mortgage or applicable law.
8.2. Upon occurrence of any Event of Default, Lender shall have the following rights and
remedies:
8.2.1. Commence, with or without entry, proceedings to foreclose this Leasehold Mortgage
as a mortgage, or to sell the Mortgaged Property under the judgment or decree of a court or
courts of competent jurisdiction.
8.2.2. Sell the Mortgaged Property at public auction at some convenient place
in Maryland or in such other place or places as may be permitted or required by law, at such
time, in such manner and upon such terms as may be specified in the notice of sale, which
notice of sale shall state the time when, and the place where, the same is to be made, shall
contain a brief general description of the property to be sold, and shall be sufficiently
given if published once a week for three (3) successive weeks prior to such sale in at least
one newspaper, if any, printed in the English language and customarily published at least
once a week in the place or places where such sale is to take place, and in such other manner
as may be required by law, and such sale may be adjourned by announcement at the time and
place appointed for such sale or for such adjourned sale or sales, and, without further
notice of publication, such sale may be made at the time and place to which the same shall be
so adjourned.
-5-
8.2.3. Assume and perform prospectively all of Grantors rights and interest under the Lease.
Lender also shall have the right (but not the obligation) to cure any defaults by Grantor under
the Lease and to exercise any options granted to Grantor under the Lease.
8.2.4 Exercise any other right or remedy available under applicable law.
8.3. If Grantor should (i) fail to pay any insurance premium, sums due under
any Permitted Encumbrance or any other sums required hereunder to be paid by Grantor, or (ii)
fail to make necessary repairs, or permit waste, or fail to cure any default under any
Permitted Encumbrance or fail to perform any other covenant or obligation set forth herein,
Lender shall have the right, but not the obligation, in Grantors name or in its own name, to
make any payment and take any action which Grantor should have made or taken, or which Lender
deems advisable to protect the security of this Leasehold Mortgage, without prejudice to any
of Lenders rights or remedies available hereunder or otherwise, at law or in equity. No
such advance or performance shall be deemed to have cured any default or Event of Default.
All such sums advanced by Lender, and all costs and expenses (including reasonable attorneys
fees) incurred by Lender in taking such actions, shall be due and payable by Grantor
immediately upon demand, shall be secured hereby and the lien therefor shall relate back to
the date of this Leasehold Mortgage.
8.4. Grantor and Lender agree that upon any sale of all or any portion of the Mortgaged
Property, whether under the above assent to a decree, power of sale or otherwise,
the proceeds of sale shall be applied as follows, unless otherwise required by law: (i) to
the payment of all costs and expenses incident to such sale, including reasonable attorneys
fees and a commission to the person making such sale equal to two percent (2%) of the gross
proceeds of sale; (ii) to the discharge of all Impositions, with costs and interest, if they
have priority over the lien of the Leasehold Mortgage; (iii) to the payment in full of the
Obligations, including without limitation principal, interest and other charges, in such
order as Lender may elect; (iv) to the payment of all claims of the Lender hereunder whether
the same shall have then matured or not, including interest thereon at the rate set forth
herein; and (v) the balance, if any, to the persons lawfully entitled to receive the same.
9. MISCELLANEOUS
9.1.
Further Assurances.
Grantor shall execute and deliver such further instruments and
perform such further acts as may be reasonably requested by Lender from time to time
to confirm the provisions of this Leasehold Mortgage, to carry out more effectively the
purposes of this Leasehold Mortgage, or to confirm the priority of the lien created by this
Leasehold Mortgage on any property, rights or interest encumbered or intended to be
encumbered by this Leasehold Mortgage.
9.2.
Severability and Savings Clauses.
If any provision of this Leasehold Mortgage is
held to be invalid or unenforceable by a court of competent jurisdiction, the other provisions
of this Leasehold Mortgage, and the same provision as applied in other circumstances, shall
remain in full force and effect and shall be liberally construed in favor of Lender in order
to effect the intent of this Leasehold Mortgage.
-6-
9.3.
Notices and Communications.
All notices and other communications given to or made upon
any party hereto in connection with this Agreement shall, except as otherwise expressly herein
provided, be in writing and mailed via certified mail, sent by Federal Express or other similar
express delivery service for next day delivery, faxed (with a confirming copy sent by such a
express delivery service for next day delivery) or hand delivered to the respective parties, as
follows:
If to Grantor:
If to Lender:
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
Facsimile: (972) 860-2682
9.4.
Modification, Amendment and Waiver.
This Leasehold Mortgage cannot be modified or amended
except by agreement in writing signed by Grantor and Lender. No waiver of any term or terms hereof
shall be effective unless in writing and signed by the party against whom it is sought to be
enforced.
9.5.
Applicable Law.
This Leasehold Mortgage is made and delivered in
the jurisdiction in which the Premises are located, and the terms hereof shall be governed by
and construed in accordance with the laws of such jurisdiction. Grantor hereby (i) agrees
that any suit arising out of or relating to this Leasehold Mortgage may at the option of
Lender be brought in a court of record in such jurisdiction or in the courts of the United
States of America located in such state, (ii) consents to the jurisdiction of each such court
in any such suit, and (iii) waives any objection which it may have to the laying of venue in
any such suit in any such courts.
9.6.
Counterparts; Interpretation.
This Leasehold Mortgage may be executed in any
number of counterparts, and all such counterparts shall constitute but one instrument.
The use of any gender shall include all genders, as the context may require. The singular
number shall include the plural and the plural the singular as the context may require. The
captions in this Leasehold Mortgage are for convenience of reference only and shall be
referred to in construing this Leasehold Mortgage. Time is of the essence with respect to
performance by Grantor of each of the Obligations and the covenants set forth in this
Leasehold Mortgage.
9.7
Definitions.
Any capitalized terms used herein which are not defined herein shall have
the meanings ascribed to such term in the Credit Agreement.
-7-
[Signatures on the following page]
-8-
IN WITNESS WHEREOF,
Grantor has executed this Leasehold Mortgage under seal on the date first
above written.
|
|
|
|
|
|
|
|
|
WITNESS:
|
|
GRANTOR:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
(SEAL)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
Its:
|
|
|
|
|
|
|
BEFORE ME
, a Notary Public in and for the jurisdiction aforesaid, personally appeared
this date
, personally well known (or satisfactorily proven) to me
to be the person whose name is subscribed to the foregoing and annexed Leasehold Mortgage
bearing date as of
, who, being by me first duly sworn, did depose and
state that he is the
of
,
a
which entity is a party to the foregoing and annexed
Leasehold Mortgage and that he, being duly authorized so to do, executed said Leasehold Mortgage on
behalf of said entity and acknowledged the same as its free act and deed for the uses and purposes
therein contained.
WITNESS
my hand and official seal this ___ day of
.
|
|
|
|
|
|
|
Notary Public
|
|
|
|
|
|
|
|
[Notarial Seal ]
|
|
|
|
|
|
|
|
|
|
|
|
My Commission Expires:
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT A
Description of Land
EXHIBIT E
FORM OF WAIVER AND CONSENT
THIS WAIVER AND CONSENT
(Consent), made and entered into this
day of
, by and between
a
(Landlord) and
METROPCS WIRELESS, INC.,
a Delaware corporation (Lender).
BACKGROUND:
A. Landlord is the owner of the land and improvements described on Exhibit
A attached hereto (the Premises).
B. Landlord has leased the Premises to
(Tenant) pursuant to that
certain Lease dated by
and between Landlord and Tenant (as such lease may
be amended from time to time the Lease), a copy of which is attached hereto as Exhibit A.
C. Lender has made or may make loans to Tenant for the purpose of financing Tenants
business, including the acquisition by Tenant of certain telecommunications equipment (the
Equipment), which constitutes the personal property of the Tenant and which the Tenant may
remove under the terms of the Lease to the extent permitted thereunder. The Equipment may be
located on the Premises. The portion of the Equipment that Tenant may remove under the Lease
is hereinafter referred to as the Removable Collateral.
D. Lender has required, among other things, that Tenant grant to Lender
security interests in the Equipment, whether now owned or hereafter acquired, a portion of
which is and may hereafter be located on or about the Premises, and that Tenant execute a
leasehold mortgage, conveying to Lender Tenants leasehold interest in the Premises as
collateral for the loans to be made by Lender to Tenant.
NOW, THEREFORE, Landlord and Lender hereby agree as follows:
1. Landlord hereby consents to Tenants granting to Lender a lien on Tenants leasehold
interest in the Premises and executing a leasehold mortgage, leasehold deed of trust,
or collateral assignment of lease in favor of Lender (the Leasehold Mortgage).
2. Landlord consents to Tenants granting Lender a security interest in the Equipment.
Lenders security interest and liens in that portion of the Equipment consisting of Tenants
nonremovable fixtures shall be subordinate to the title or interest that the Landlord may at
any time have therein. Lenders security interests and liens in the Removable Collateral
shall be superior to any title or interest that the Landlord may at any time have therein.
During the term of this Consent, Landlord will not assert against any of the Removable
Collateral any title or any statutory, common law, contractual or possessory lien, including,
without limitation, rights of levy or distraint for rent, all of which Landlord hereby
subordinates in favor of Lender.
3. Landlord hereby disclaims any and all right, title, interest or claim in or to
the Removable Collateral and any cash or non-cash proceeds of the Removable Collateral.
The Removable Collateral may be affixed to or used in conjunction with the Premises, but
shall remain the Tenants personal property and subject to Lenders security interest and
liens. Landlord agrees not to impound or remove any of the Removable Collateral from the
Premises as long as this Consent is in effect.
4. Landlord agrees that during the term of the Lease, Lender may conduct public
or private sales of the Equipment at the Premises and that interested parties will be
permitted access to the Premises during normal business hours, with reasonable advance notice
to Landlord, for the purpose of inspecting the Equipment prior to any such sale and for the
purpose of removing the Removable Collateral from the Premises.
5. Landlord agrees that during the 60-day period following expiration of the
Lease, Lender may, at its discretion, remove, sell or otherwise dispose of the Removable
Collateral as Lender may elect, as long as Landlord shall have received all payments to which
it is entitled under the Lease. Any Removable Collateral still located in the building at the
end of the 60-day period shall be deemed to have been abandoned by the Lender (or by the
purchaser of the same at any public or private sale), and shall no longer be subject to the
Lenders security interest and lien.
6. In the event that Tenant defaults in its obligations under the Lease, Landlord hereby
agrees to give Lender written notice of default under the Lease, at the same time and in the
same manner as such notice is given to Tenant and further agrees that Lender may, but
shall not be obligated to, cure such defaults, at its option, within the applicable notice
and cure periods and/or assume the Lease in place of Tenant. Unless and until Lender
expressly notifies Landlord of Lenders assumption of the Lease to the exclusion of Tenant,
Lender assumes no duty, liability or obligation whatsoever under the Lease.
7. Lender shall have no obligations under the Lease unless and until Lender delivers to
Landlord written notice of assumption, if Lender elects to assume the Lease. Upon delivery
of such written notice of assumption to Landlord, then Lender (or its designee) shall be
entitled to all rights and benefits of the Lease, and shall be obligated for all of Tenants
obligations thereunder. Landlord agrees that, in the event that a default occurs under the
Leasehold Mortgage and Lender, or any agent or designee of Lender, takes possession of the
Premises or forecloses and sells Tenants leasehold interest in the Premises, Lender, and its
designees, successors, assigns or transferees shall be permitted to use the Premises for any
purpose permitted under the Lease and applicable law.
8. Landlord agrees and acknowledges that, in the event of a default under the Leasehold
Mortgage, Lender may exercise any of the remedies contained therein and may assume or
transfer to a third party the Tenants interest in the Lease (including any purchase option,
access rights, utility easements and rights of way) pursuant to the terms of the
Leasehold Mortgage. Any transfer of the Lease shall be subject to Landlords rights under the
Lease.
-2-
9. Notwithstanding any other provision of this Agreement or the Lease to the contrary,
all of Lenders right, title and interest in and to the Lease and any obligations thereunder
may be assigned and transferred to an affiliate or successor of Lender without notice to
Landlord, and to other parties with notice to Landlord.
10. The provisions of this Consent may not be modified or terminated orally, and shall
be binding upon the successors and assigns of the Landlord, and upon any successor owner or
transferee of the Premises and shall be binding upon and inure to the benefit of the Lender
and its successors and assigns.
11. All notices shall be in writing and shall be mailed by first class registered
or certified mail, postage prepaid, as follows:
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
Facsimile: (972) 860-2682
12. This document shall in all respects be governed by and construed in accordance with
the laws of the State in which the Premises are located.
[signature page follows]
-3-
IN WITNESS WHEREOF, Landlord and Lender has each executed this Waiver and Consent on the date
first above written.
|
|
|
|
|
|
|
|
|
LANDLORD:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT F
FORM OF AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this Agreement) executed on December 15,
2005 as of December 22, 2004, is entered into by and between ROYAL STREET COMMUNICATIONS, LLC, a
Delaware limited liability company (Grantor), and METROPCS WIRELESS, INC., a Delaware
corporation (Lender).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
pursuant to that certain Second Amended and Restated Credit Agreement, dated
as of even date herewith, by and between Grantor and Lender (as the same may be amended from time
to time, the Credit Agreement), Lender has agreed to make one or more loans to Grantor in
accordance with the terms therewith;
WHEREAS,
in order to induce the Lender to enter into the Credit Agreement and to continue to
make the Loans, and in consideration therefor, the Grantor has agreed to execute and deliver this
Agreement to amend and restate that certain Pledge Agreement dated as of December 22, 2004 (the
Original Pledge Agreement) and that certain Pledge Agreement dated as of January 24, 2005 (the
Existing Pledge Agreement), each between Grantor and Lender (as successor lender to Holdings),
pursuant to which Grantor has granted to Lender a first-priority perfected security interest in all
of the membership or other equity interests, now owned or hereafter acquired by the Grantor or in
which the Grantor has or hereafter acquires any interest (the Pledged Securities), in each
Holding Subsidiary to secure Grantors obligations under the Credit Agreement and other Loan
Documents; and
WHEREAS,
it is a condition precedent to the making of any further Loans that the Grantor
execute and deliver this Agreement to, among other things, amend and restate the Original Pledge
Agreement and the Existing Pledge Agreement on the terms and conditions set forth herein;
NOW THEREFORE,
for and in consideration of the covenants and provisions set forth herein, and
for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree to amend and restate the Original Pledge Agreement and the Existing Pledge
Agreement and further agree as follows:
1.
DEFINED TERMS.
As used in this Agreement, capitalized terms defined in the Credit
Agreement that are not defined herein shall have the meanings ascribed to them therein, and the
following terms shall have the following meanings:
Collateral shall mean the Pledged Securities, including Pledged Securities in which the
Grantor hereafter acquires any interest, and all proceeds thereof.
Obligations shall mean all indebtedness, obligations, fees and liabilities of any kind of
the Grantor to the Lender under or pursuant to the Credit Agreement, the Note (as defined in the
Credit Agreement), this Agreement and the other Loan Documents.
2.
PLEDGE.
Grantor hereby unconditionally and irrevocably pledges,
collaterally assigns and grants to Lender a continuing lien on and security interest in and
to the Collateral (the Security Interest) to secure the payment and performance of the
Obligations. The Security Interest is a first priority lien on the Collateral effective as of
the date hereof without the need to execute any further instruments, agreements or documents
other than as specifically set forth herein.
3.
CONTINUING SECURITY.
This Agreement shall operate as a continuing security
between Lender and Grantor:
a. irrespective of any sum or sums which may be paid to the credit of any account
of Grantor with Lender;
b. notwithstanding the appointment, retirement or removal, at any time, of
a receiver for Grantor;
c. notwithstanding the exercise by Lender or a receiver of any power conferred by
this Agreement, by any other agreement or document or by law; and
d. notwithstanding any settlement of account or any other matter or
thing whatsoever;
and shall remain in full force and effect and extend to cover all of the Obligations until a final
release of this Agreement has been executed by Lender.
4.
CERTIFICATES, VOTING, ETC.
Upon execution and delivery of this Agreement,
Grantor shall deliver to Lender any and all certificates representing all of the Collateral
with a transfer executed in blank. If at any time, any Holding Subsidiary shall issue any
additional or substitute units, shares of stock, or any other instruments evidencing an
interest in or an obligation of such Holding Subsidiary to Grantor in respect of the Pledged
Securities, Grantor shall promptly pledge, mortgage and deposit with Lender such additional
certificates, instruments or documents as additional security for the Obligations, all of
which additional security shall constitute Collateral (and shall be included within the
definition of Collateral hereunder). With respect to any Collateral that is an
uncertificated security for purposes of the Code (other than any uncertificated
securities credited to a Securities Account under the control of the Lender), Grantor shall
cause the issuer of such uncertificated security to either (i) register the Lender as the
registered owner thereof on the books and records of the issuer or (ii) execute an agreement,
in form and substance satisfactory to the Lender pursuant to which such issuer agrees to
comply with the Lenders instructions with respect to such uncertificated security without
further consent by such Grantor. Lender shall hold the Collateral solely as security for
the payment and performance of the Obligations. Unless an Event of Default shall have
occurred and be continuing, Grantor shall have the right to vote the Collateral on all
questions on which the Collateral entitles Grantor to vote and, if necessary, upon written request
of Grantor, Lender shall execute due and timely proxies, powers of attorney and consents in favor
of Grantor as necessary to facilitate such voting; provided however, that Grantor shall not vote
the Collateral in support of any proposal or in any other manner which is inconsistent with the
terms of the Credit Agreement, this Agreement or the other Loan Documents, or which is otherwise
inconsistent with the Grantors full and timely performance of the Obligations.
5.
DISTRIBUTIONS.
Unless and until an Event of Default shall have occurred and
be continuing, Grantor shall have the right to receive and to retain all cash dividends
and other cash distributions which are paid on account of the Collateral.
6.
RESTRICTIONS ON TRANSFER.
Grantor shall not sell or otherwise dispose of,
grant any option with respect to, or create, incur, assume or suffer to exist any
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), preference, priority or other security agreement of any kind or nature whatsoever
on (including, without limitation, any conditional sale or other title retention agreement,
any financing or similar statement or notice filed under the Uniform Commercial Code of any
jurisdiction) all or any portion of the Collateral.
7.
REPRESENTATIONS AND WARRANTIES.
Grantor hereby represents and warrants to
Lender as follows:
a. Grantor has good and marketable title to the Collateral, free and clear
of all liens, claims and encumbrances, except liens granted to Lender pursuant to
this Agreement, and full power, authority and legal right to pledge such Collateral
to Lender as provided herein;
b. The pledge, assignment and delivery of the Collateral pursuant to Section 2
will create a valid, perfected lien on and a valid perfected first priority security
interest in the Collateral in favor of Lender under the Uniform Commercial Code of
the State of New York (the UCC), subject to no prior lien (whether consensual,
nonconsensual, statutory or otherwise) and to no agreement purporting to grant any
third party any security interest or other interest in any of the Collateral; no
additional actions by any entity are necessary to create or perfect the Security
Interest; and
c. The execution, delivery and performance of this Agreement by Grantor will not
(a) contravene any law, statute, rule or regulations, or any order, writ,
injunction or decree of any court or governmental instrumentality, (b) conflict or be
inconsistent with or result in any breach of any of the terms, covenants or
conditions or provisions of or constitute a default under, any indenture, credit
agreement or other agreement, contract or instrument to which Grantor is a party, or
(c) conflict or be inconsistent with or result in a breach of the terms of the
Grantors organizational documents.
8.
EVENTS OF DEFAULT.
Each of the following shall constitute an Event
of Default hereunder:
a. The occurrence of an Event of Default under the Credit Agreement or the
Note; or
b. [Intentionally Removed].
9.
REMEDIES UPON AN EVENT OF DEFAULT.
Upon the occurrence of an Event of Default,
after any applicable cure period, and at any time thereafter, Lender may (but shall not be
required to) take any or all of the following actions simultaneously or in any order which it may
choose:
a. The Lender may from time to time take whatever action at law or in equity may
appear necessary or desirable in order to collect the monies payable hereunder
or secured hereby or to enforce performance and observance of any obligation,
agreement or covenant hereunder;
b. The Lender may foreclose its security interest in any of the Collateral in any
way permitted by law; and the Lender may thereupon, or at any time thereafter, in
its sole discretion, without notice or demand (except such notice as may be
specifically required by law) and with or without having the Collateral at the time or
place of sale, sell or otherwise dispose of the Collateral, or any part thereof, at
one or more public or private sales, at any time or place, at such price or prices and
upon such terms, either for cash, credit or future delivery, as the Lender may elect.
In the exercise of such remedy, the Lender may sell all of the Collateral as a unit
even though the sales price thereof may be in excess of the amounts remaining unpaid
on the Obligations. To the extent not prohibited by Applicable Law, the Lender is
authorized at any sale or other disposition of the Collateral, if it deems it
advisable so to do, to restrict (with respect to any securities that are part of the
Collateral) the prospective bidders or purchasers thereof to persons who will
represent and agree that they are purchasing for their own account for investment, and
not with a view to the distribution or resale of any of the Collateral. At any such
public sale the Lender may bid for and become the purchaser of all or any part of the
Collateral, and such sale or sales may be held without demand of performance, notice
of intention to sell, the time or place of sale or any other matter, except for
such notice as may be specifically required by law; and the purchaser at any such sale
or other disposition shall thereafter hold the Collateral sold absolutely free from
any claim or right of the Grantor of whatsoever kind, including any right of
redemption of the Grantor, all such rights being hereby expressly waived and released
by the Grantor to the extent permitted by law;
c. The Lender may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to
a judgment or decree of a court or courts having competent jurisdiction or pursuant to
a proceeding by a court-appointed receiver. The Grantor hereby assents to the passage
of a decree for the sale of any of the Collateral by any court having jurisdiction.
In any action hereunder, the Lender shall be entitled to the appointment of a receiver
without notice, to peaceably take possession of all or any portion of the Collateral
and to exercise such powers as the court shall confer upon the receiver.
Notwithstanding the foregoing, if an Event of
Default shall occur and be continuing, the Lender shall be entitled to apply, without notice to
the Grantor, any cash or cash items constituting Collateral in its possession to payment of the
Obligations;
d. The Lender shall have the right, in its sole discretion, to apply for and have a
receiver appointed by a court of competent jurisdiction in any action taken by Lender to
enforce its rights and remedies hereunder in order to manage, protect and preserve the
Collateral and continue the operation of the business of Grantor and to collect all revenues
and profits thereof and apply the same to the payment of all expenses and other charges of
such receivership, including but not limited to the compensation of the receiver, until a
sale or other disposition of such Collateral shall be finally made and consummated. Lender
and Grantor acknowledge and agree that in connection with any exercise by the Lender of its
rights hereunder to dispose of or operate under the station covered hereby, it may be
necessary to obtain the prior consent or approval of certain governmental authorities. Upon
the exercise by Lender of any power, right, privilege or remedy pursuant to this Agreement
which requires any consent or approval of any governmental authority, Grantor will execute
and deliver, or will cause the execution and delivery of, all applications, certificates and
other documents which may reasonably be required to obtain such approval or consent. Grantor
shall cooperate in good faith with Lender and any purchaser of the Collateral in obtaining
any such approvals or consents;
e. The Lender may sell its interest hi the Collateral in accordance with any Applicable
Law. Such Collateral or any interest therein may be sold upon such terms and in as many lots
as the person conducting the sale may, in his sole discretion, elect. No readvertisements of
any sale shall be required if the sale is adjourned by announcement, at the time or place set
therefor, of the date, time or place to which the same is to be adjourned;
f. The Lender may, to the extent not prohibited by Applicable Law, exercise any and all
rights of conversion, exchange or subscription and any other rights, privileges or options
pertaining to any of the Collateral, as if the Lender were the absolute owner thereof,
including (without limitation) the right to exchange, at its discretion, any and all of the
Collateral upon the merger, consolidation, reorganization, recapitalization or
other readjustment of any subsidiary of Grantor;
g. The Lender may exercise any remedies available to a secured party under the UCC,
regardless of whether or not the UCC actually applies;
h. The Lender may vote or otherwise exercise any rights accruing to the owner of the
Collateral without notice to or consent of Grantor;
i. The Lender may commence and prosecute an action, at law or in equity, in any court of
competent jurisdiction, seeking money damages, injunctive or declaratory relief or any other relief
available under applicable law, and take all such actions as may be necessary or desirable to
enforce any order or judgment entered in connection with such action; and/or
j. The Lender may exercise any other remedies afforded to Lender pursuant to
the terms of this Agreement.
All of Lenders rights and remedies hereunder, under the Credit Agreement and under any and
all other Loan Documents, shall be cumulative and not exclusive, and shall be enforceable
alternatively, successively or concurrently as Lender may, in its sole discretion, deem expedient.
Lender shall have no obligation to preserve rights in the Collateral or marshall any of the
Collateral for the benefit of any person or entity.
10.
EXPENSES.
Grantor shall pay, when due, any and all reasonable fees, taxes
or other charges imposed in connection with the Security Interest including, without
limitation, any fees imposed in connection with recordation of instruments necessary or
desirable in order to reflect, effectuate or release the Security Interest.
11.
APPLICATION OF PROCEEDS.
Any proceeds received from the exercise of any
remedy hereunder, after deducting therefrom any and all costs and expenses
reasonably incurred in securing possession of any Collateral, in shipping and storing the
Collateral, in preparing the Collateral for sale or otherwise dealing with Collateral prior
to any sale or other disposition thereof and in connection with the sale or other disposition
thereof (including, without limitation, reasonable attorneys and accountants fees and
brokers commissions), shall be applied toward the payment of any and all amounts due under
or with respect to the Obligations, including interest, and all other costs and expenses
reasonably incurred by the Lender in connection with this Agreement which are then due and
payable, in such order and amounts as the Lender, in its sole discretion, may elect. If
such net proceeds should be insufficient to pay the same and a deficiency shall result, the
Grantor shall nevertheless remain liable for such deficiency; and if such proceeds should be
more than sufficient to pay the same, then in case of a surplus, such surplus shall be
accounted for and, if any amounts due under the Obligations remain outstanding, retained by
the Lender, who shall hold the same as security for the payment of the Obligations;
otherwise, such surplus shall be paid over to the Grantor or to whomsoever a court of
competent jurisdiction shall determine to be entitled thereto.
12.
NOTICES.
All notices and other communications given to or made upon
any party hereto in connection with this Agreement shall, except as otherwise expressly
herein provided, be in writing and mailed via certified mail, sent by Federal Express or
other similar express delivery service for next day delivery, faxed (with a confirming copy
sent by such a express delivery service for next day delivery) or hand delivered to the
respective parties, as follows:
If to the Lender:
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
If to Grantor:
Royal Street Communications, LLC
PO Box 2365
Southampton, NY 11969
Attention: Robert Gerard
or in accordance with any subsequent written direction delivered in accordance with this section
from the recipient party to the sending party. All such notices and other communications shall,
except as otherwise expressly herein provided, be effective upon delivery if delivered by hand; in
the case of certified mail, three Business Days after the date sent; in the case of any fax, when
received; or in the case of express delivery service, the day after delivery of the notice to such
service with charges prepaid.
13.
ASSIGNABILITY AND PARTIES IN INTEREST.
This Agreement shall not be
assignable by Grantor without the written consent of Lender. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective successors
and permitted assigns.
14.
TERMINATION.
This Agreement shall terminate and the Security Interest
shall be released upon the earlier to occur of (i) the payment and satisfaction in full of
the Note and all of the Obligations relating to the Note; or (ii) the mutual agreement of
Grantor and Lender.
15.
CERTAIN WAIVERS; GRANTOR NOT DISCHARGED.
The Grantor expressly and
irrevocably waives (to the extent permitted by Applicable Law) presentment, demand of payment
and protest of nonpayment in respect of its Obligations under this Agreement. The obligations
and duties of the Grantor hereunder are irrevocable, absolute, and unconditional and shall
not be discharged, impaired or otherwise affected by (a) the failure of the Lender to assert
any claim or demand or to enforce any right or remedy against the Grantor or any waiver,
consent, extension, indulgence or other action or inaction in respect thereof, (b)
any extension or renewal of any part of the Obligations, (c) any rescission, waiver,
amendment or modification of any of the terms or provisions of the Credit Agreement or any of
the Loan Documents, (d) the release of any liens on or security interests in any part of the
Collateral or the release, sale or exchange of or failure to foreclose against any security
held by or for the benefit of the Lender for payment or performance of the Obligations, (e)
the bankruptcy, insolvency or reorganization of the Grantor or any grantee or any other
persons, (f) the invalidity or unenforceability of the Credit Agreement or any of the Loan
Documents, (g) any change, restructuring or termination of the corporate structure or
existence of the Grantor or any grantee or any restructuring or refinancing of all or any
portion of the Obligations, or (h) any other event which under law would discharge the
obligations of a surety.
16.
TRANSFER OF SECURITY INTEREST.
The Lender may transfer to any other person
all or any part of the liens and security interests granted hereby, and all, or any part of
the Collateral which may be in the Lenders possession after the occurrence and during
the continuance of an Event of Default or, if to a successor Lender in accordance with the
Credit Agreement, at any time. Upon such transfer, the transferee shall be vested with all
the rights and powers of the Lender hereunder with respect to such of the Collateral as is so
transferred, but, with respect to any of the Collateral not so transferred, the Lender shall
retain all of their rights
and powers (whether given to it in this Agreement, or otherwise). The Lender may, at any
time, assign all or any portion of its rights as the Lender hereunder to any person, in the
Lenders discretion, including without limitation Bear, Stearns & Co. Inc. or any Affiliate
thereof, and upon notice to the Grantor, but without any requirement for consent or approval by or
from Grantor, and any such assignment shall be valid and binding upon the Grantor, as fully as it
had expressly approved the same.
17.
INDEMNITY; REIMBURSEMENT OF LENDER.
The Grantor agrees to indemnify, defend
and hold the Lender harmless from and against any and all claims, demands, losses, judgments
and liabilities (including but not limited to, liabilities for penalties) of any nature, and
to reimburse the Lender for all reasonable costs and expenses, including but not limited to
attorneys fees and expenses, arising from this Agreement or the exercise of any right or
remedy granted to the Lender hereunder, except to the extent such claims arise out of
Lenders gross negligence, willful misconduct or fraud. In no event shall the Lender be
liable for any matter or thing in connection with this Agreement other than to account for
moneys actually received by the Lender in accordance with the terms hereof. All indemnities
contained in this Section 17 and elsewhere in this Agreement shall survive the expiration or
earlier termination of this Agreement.
18.
NO LIABILITY FOR COLLATERAL.
Beyond the exercise of reasonable care in
the custody of any Collateral, the Lender shall not, under any circumstance or in any event
whatsoever, have any liability for any part of the Collateral, nor shall the Lender have
any liability for any error or omission or delivery of any kind incurred in the good faith
settlement, collection or payment of any of the Collateral or any monies received in payment
therefor or for any damages resulting therefrom, nor shall this Agreement impose upon the
Lender any obligation to perform any obligation with respect to the Collateral. The costs
of collection, notification and enforcement, including but not limited to, attorneys fees
and out-of-pocket expenses, shall be borne solely by the Grantor, whether the same are
incurred by the Grantor or the Lender.
19.
GOVERNING LAW.
This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of New York, without regard to its
conflict of laws principles, except to the extent that the perfection and the effect of
perfection or non- perfection of any security interests created hereby is governed by the
laws of a jurisdiction other than the State of New York.
20.
COMPLETE AGREEMENT.
This Agreement and the Credit Agreement contain the
entire agreement between the parties hereto with respect to the transactions contemplated
herein and, except as provided herein, supersede all previous oral and written and all
contemporaneous oral negotiations, commitments, writings and understandings.
21.
AMENDMENTS AND WAIVERS.
This Agreement may be amended only by a writing
signed by the Grantor and Lender. No delay or omission on the part of any party hereto in
exercising any right hereunder shall operate as a waiver of such right or any other
right hereunder or operate to constrain the rights of any other parties hereunder. No waiver
of any one right shall operate as a waiver of any subsequent right.
22.
INTERPRETATION.
The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
23.
CONTINUING LIEN.
It is the intent of the parties hereto that (a)
this Agreement shall constitute a continuing agreement as to any and all future, as well as
existing transactions, between the Grantor and the Lender under or in connection with the
Notes, and (b) the security interest provided for herein shall attach to after-acquired as
well as existing Collateral and the Obligations covered by this Agreement shall include any
future advances under or in connection with the Credit Agreement.
24.
COUNTERPARTS.
This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which when taken
together shall constitute but one contract, and shall become effective when copies hereof
which, when taken together, bear the signatures of each of the parties hereto shall be
delivered or mailed to the Lender.
25.
SEVERABILITY.
If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable in any material respect, such provision shall be replaced
with a provision which is as close as possible in effect to such invalid, illegal or
unenforceable provision, and still be valid, legal and enforceable, and the validity,
legality and enforceability of the remainder of this Agreement shall not in any way be
affected or impaired thereby, unless the parties otherwise so provide.
26.
VENUE; WAIVER OF JURY TRIAL.
a. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURT OF THE UNITED STATES OF AMERICA
LOCATED IN THE STATE OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION
AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT OF
THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO
ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT
THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE
APPROPRIATE OR THAT THIS AGREEMENT, OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY
SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A STATE OR
FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION
OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE.
b. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 26(b).
27.
FURTHER ASSURANCES.
Grantor agrees, from time to time, at its expense, to
do such further things, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the Lender may from time
to time reasonably request for the better assuming and preserving of the security interests
and rights and remedies created hereby, including, without limitation, the execution and
delivery of such financing statements or continuation statements, and amendments thereto, as
may be necessary or desirable, or as Lender may request in order to perfect and preserve the
security interests granted hereby. Grantor hereby authorizes Lender or its agent to file such
financing statements and/or such continuation statements and amendments thereto relating to
all or any part of the Collateral without its signature, where permitted by law. A carbon,
photographic or other reproduction of this Agreement or any financing statement covering the
collateral granted hereby or any part thereof shall be sufficient as a financing statement
where permitted by law.
28.
AMENDMENT AND RESTATEMENT.
This amends and restates in its entirety the
Original Pledge Agreement and the Existing Pledge Agreement, and from and after the date
hereof, and subject to the terms hereof, the terms and provisions of the Original
Pledge Agreement and the Existing Pledge Agreement shall be superseded by the terms and
provisions of this Agreement. The Grantor hereby agrees that (i) the liens and security
interest granted by Grantor under the Original Pledge Agreement and the Existing Pledge
Agreement shall be deemed to be liens and security interests securing the indebtedness and
Obligations under the Credit Agreement shall remain outstanding and governed by this
Agreement, and shall not constitute a novation, and (ii) all liens and security interests
securing the indebtedness and Obligations under the Original Pledge Agreement and the
Existing Credit Agreement shall continue in full force and effect to secure the indebtedness
and obligations of Borrower under the Credit Agreement, the Note and the other Loan
Documents.
[remainder of page intentionally blank; signature page follows]
SIGNATURE PAGE TO
AMENDED AND RESTATED PLEDGE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first written above.
|
|
|
|
|
|
|
|
|
GRANTOR:
|
|
|
|
|
|
|
|
|
|
|
|
ROYAL STREET COMMUNICATIONS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
Name:
|
|
ROBERT A. GERARD
|
|
|
|
|
Title:
|
|
CHIEF EXECUTIVE OFFICER
|
|
|
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
|
Name:
|
|
Roger D. Linquist
|
|
|
|
|
Title:
|
|
President and CEO
|
|
|
EXECUTION COPY
FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this
Amendment
) is entered into, as of November 2, 2006, by and between
ROYAL STREET
COMMUNICATIONS, LLC
, a Delaware limited liability company
(
Royal Street
), and
METROPCS WIRELESS, INC.
, a corporation (
Lender
or
MetroPCS
).
WITNESSETH:
WHEREAS, Royal Street and the Lender are parties to that certain Second Amended and
Restated Credit Agreement executed on December 15, 2005 as of December 22, 2004 (as amended,
restated, supplemented or otherwise modified from time to time, the
Credit
Agreement
); and
WHEREAS, Royal Street has requested, and MetroPCS has agreed, to amend the Credit
Agreement to provide, among other things, for an increase in the principal amount of the Loan
Commitment Amount from $343,599,250 to $500,000,000 in accordance with and subject to the
terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein and other good valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree, subject to the conditions
precedent to this Amendment and intending to be legally bound, to amend the Credit Agreement
as follows:
1.
Capitalized Terms
. All capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement, as amended hereby, except as otherwise defined or
limited herein.
2.
Amendments to Section 1.
(a) Section 1 of the Credit Agreement
Defined Terms
is hereby modified
and amended by adding the following new definitions in appropriate alphabetical
order:
License Subsidiary
shall mean any limited liability company Holding
Subsidiary that has as its sole purpose holding the License(s) in a given
Market (as such term is defined in the LLC Agreement) to be used by Borrower in
connection the Royal Street System in such Market.
Lien
shall mean any interest in assets or property securing an
obligation owed to, or a claim by, a Person other than the owner of the asset or
property, whether such interest is based on the common law, statute or contract,
and whether such obligation or claim is fixed or contingent, and including but
not limited to the lien or security interest arising from a mortgage encumbrance,
pledge, security agreement, conditional sale or trust receipt of a lease,
consignment or bailment for security purposes. For the purposes of this
Agreement, Borrower and its Subsidiaries shall be deemed to be the owner
of any assets or property which it has acquired or holds subject to a
conditional sale agreement, or leases under a financing lease or other
arrangement pursuant to which title to the assets or property has been
retained by or vested in some other Person in a transaction intended to
create a financing.
Operating Subsidiary
shall mean any limited liability company
Holding Subsidiary that has as its sole purpose holding and operating the
Royal Street System and the other assets (other than the License(s)) in a
given Market (as such term is defined in the LLC Agreement).
Royal Street
shall mean Royal Street Communications, LLC, a
Delaware limited liability company.
(b) Section 1
of the Credit Agreement,
Defined Terms
, is hereby further
modified and amended by deleting the definition of Borrower in its entirety and
substituting the following in lieu thereof:
Borrower
shall mean, for purposes of this Credit Agreement and each
of the other Loan Documents (except to the extent that the contest
otherwise clearly requires), individually and collectively, jointly and
severally, Royal Street and all Holdings Subsidiaries that shall execute
and deliver a Counterpart
Signature Page in the form of Exhibit C to this Credit Agreement.
(c) Section 1 of the Credit Agreement
Defined Terms
, is hereby
further modified and amended by adding the following at the end of clause (i) of the
definition of Borrower Change in Control Event:
, except for agreements which would result in a Transfer to GWI in accordance with Article 5 of
the LLC Agreement
(d) Section 1
of the Credit Agreement,
Defined Terms
, is hereby further modified and amended by adding the following new clause (iii) at the end of the definition of
Borrower Change in Control Event:
, or (iii) Royal Street shall fail to own and control, directly or indirectly, one hundred (100%)
of the membership or other equity interests of each of its Subsidiaries, except any transfers to
GWI of membership or other equity interests of Royal Streets Subsidiaries pursuant to Article 5
of the LLC Agreement.
(e) Section 1 of the Credit Agreement,
Defined Terms
, is here further modified and
amended by deleting the definition of Holding Subsidiary in its entirety and substituting the
following in lieu thereof;
Holding Subsidiary
shall mean a Person formed under the laws of the State of
Delaware, all of the capital stock, partnership interests, member interest,
-2
or other equity interests of which shall be owned, directly or
indirectly, by Borrower.
(f) Section 1
of the Credit Agreement,
Defined Terms
, is hereby further
modified and amended by deleting the definition of Loan Commitment Amount in its
entirety and substituting the following in lieu thereof:
Loan Commitment Amount
shall mean $500,000,000 or the maximum amount that
Lender is permitted to lend to Borrower pursuant to the Lender Credit Facility.
(g) Section 1 of the Credit Agreement,
Defined Terms
, is hereby further
modified and amended by adding the phrase any Leasehold Mortgages, immediately
following
the reference to the Pledge Agreement in the definition of Loan Documents.
(h) Section 1 of the Credit Agreement,
Defined Terms
, is hereby further
modified and amended by adding the phrase or other equity interests immediately following
the reference to capital stock in the definition of Subsidiary.
(i) Section 1 of the Credit Agreement,
Defined Terms
, is hereby further
modified and amended by replacing the term Borrower with Royal Street in each of (i)
clauses (ii) and (iii) of the definition of Commitment Period, (ii) the definition of
Equipment and Facilities Lease, (iii) the definition of Required Capital Contribution and
(iv) the definition of Services Agreement.
3. Amendments to Section 2.2.
(a) Section 2.2
of the Credit Agreement,
Procedure for Borrowing
, is hereby further
modified and amended by (i) deleting each reference to Holding
Subsidiary from clause (b) of such Section, and (ii) adding the
following sentence at the end of clause (b) of such Section:
Notwithstanding anything to the contrary contained in this Credit Agreement,
all Loans requested under this Credit Agreement shall be requested by
Administrative Borrower as agent for Borrowers, and all proceeds of such Loans
shall be paid to Administrative Borrower as agent for Borrowers.
(b) Section 2.2 of the Credit Agreement,
Procedure for Borrowing
, is hereby
further modified and amended by adding the following new clause (h) at the end of such
Section:
h. Each Borrower hereby irrevocably appoints Royal Street as the borrowing
agent and attorney-in-fact for all Borrowers (
Administrative Borrower
)
which appointment shall remain in full force and effect unless and until Lender
shall have received prior written notice signed by each Borrower that such
appointment has been revoked and that another Borrower has been appointed
Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes
Administrative Borrower (i) to provide Lender with all notices with respect to
Loans obtained for the benefit of any Borrower and all other notices
-3
and instructions under this Credit Agreement and (ii) to take such
action as Administrative Borrower deems appropriate on its behalf to
obtain Loans and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement. It is
understood that the handling of the Loans and collateral of Borrower in a
combined fashion, as more fully set forth herein, is done solely as an
accommodation to Borrower in order to utilize the collective borrowing
powers of Borrower in the most efficient and economical manner and at
their request, and that Lender shall not incur liability to any Borrower
as a result hereof. Each Borrower expects to derive benefit, directly or
indirectly, from the handling of the Loans and the collateral in a
combined fashion since the successful operation of each Borrower is
dependent on the continued successful performance of the integrated
group.
4.
Amendment to Section 2.4
.
Section 2.4 of the Credit Agreement
Conditions Precedent to Lenders Obligation to Make Any Loan
, is hereby
modified and amended by deleting clause (iii) of such Section and substituting the
following in lieu thereof:
Lender shall have a perfected first priority security interest in
all of the membership interests in all of Borrowers
Subsidiaries.
5.
Amendment to Section 2.5
. Section 2.5 of the Credit Agreement,
Security Agreement; Leasehold Mortgages
, is hereby modified and amended by
deleting clause (a)(iii) of such Section in its entirety and by substituting the
following in lieu thereof:
To
the extent required by Lender in writing, a first priority lien on all
real property interests of Borrower, including, without limitation, all
Leases, including capital leases, and all real property owned by Borrower in
fee simple. Lenders liens in the foregoing shall be created by and subject
to the provisions of one or more Leasehold Mortgages, substantially in the
form of Exhibit D, entered, to the extent required by Lender in writing,
with respect to each Lease, parcel of real property or other real property
interest of Borrower.
6.
Amendment to Section 5.4
.
Section 5.4 of the Credit Agreement,
Subsidiaries
, is hereby amended and restated in its
entirety as follows:
5.4 Subsidiaries.
a. Royal
Street shall form one or more direct or indirect
Operating Subsidiaries and License Subsidiaries. As soon as practicable after
receipt of any and all required FCC approvals, Royal Street shall contribute one
or more of such Licenses to each of the License Subsidiaries, as contemplated by
Section 2.5(d) of the LLC Agreement, and Royal Street shall contribute all of the
other assets to each Operating Subsidiary in accordance with the Market to be
served by such License Subsidiary.
-4
b. Royal
Street shall cause each of its direct or indirect
Subsidiaries to become a party to this Credit Agreement, the Security
Agreement and the Pledge Agreement and to be jointly and severally liable
for all obligations of Borrower hereunder by executing a copy of the form
of counterpart signature page substantially in the form of Exhibit C
attached hereto (or in such other form as may be agreed by Borrower and
Lender) and made a part thereof.
7.
Amendment to Section 5.12.
Section 5.12 of the Credit Agreement,
Leasehold Mortgages
, is hereby modified and amended by (i) inserting the phrase
To the extent required by Lender, at the beginning of clause (a) of such Section and
(ii) adding the fallowing sentence at the end of clause (c) of such Section;
To the extent Borrower is not required
by Lender to execute a Leasehold Mortgage with respect to any real
property leased to Borrower, at the written request of Lender Borrower shall use commercially reasonable efforts to obtain a
landlords waiver and collateral access agreement, in form and substance reasonably satisfactory to Lender,
with respect to each such leased real property.
8.
Amendment
to Section 5.13
. Section 5.13 of the Credit
Agreement, Negative
Covenants
, is hereby modified and amended by deleting the
phrase except for transfers of Licenses to Holding Subsidiaries from clause (a) of
such Section and by substituting except for transfers of Licenses to the License
Subsidiaries and transfers of other assets to Operating Subsidiaries in lieu thereof.
9.
Amendments
to Sections 6.1
. Section 6.1 of the Credit Agreement,
Events of Default
, is
hereby further modified and amended by deleting or Borrower shall fail to transfer the Licenses to
Holding Subsidiaries as required in Section 5.4 hereof in clause (b) of such
Section,
Breaches of Other Covenants
, and by substituting Borrower shall fail to
transfer the Licenses to License Subsidiaries or the other assets Operating
Subsidiaries, in each case, as required in Section 5.4 hereof in lieu thereof.
10.
No
Other Amendments
. Except for the amendments, releases, authorizations and
waivers set forth above, the text of the Credit Agreement and the other Loan Documents shall remain
unchanged and in full force and effect.
11.
Conditions
to Effectiveness
. This Amendment will be effective as of the date first
written above (the
Effective Date
), subject to the occurrence of each of the
following on or before such date:
(a) Lender
shall have received counterparts hereof duly executed by Borrower;
and
(b) All
of the representations and warranties of Borrower set forth in
the Credit Agreement and this Amendment shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the Effective Date as though made on
and as of such date.
-5
12.
Representations and Warranties
. Royal Street agrees,
represents favor of Lender as follows:
(a) This Amendment has been executed and delivered by a duly authorized
representative of Royal Street, and the Credit Agreement, as modified and amended by this
Amendment, constitutes a legal, valid and binding obligation of Royal Street and is enforceable
against Royal Street in accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws or (ii) general
principles of equity;
(b) Except as reflected on Exhibit 1, each representation or warranty of Royal Street
set forth in the Credit Agreement is hereby restated and reaffirmed as true and correct in
all material respects on and as of the Effective Date, and after giving effect to this
Amendment, as if such representation or warranty were made on and as of the Effective Date of,
and after giving effect to, this Amendment;
(c) No Event of Default (or other event which if not timely cured or corrected
would with the passage of time become an Event of Default) with respect to Royal
Street has occurred and is continuing; and
(d) As of the date hereof, Royal Street is solvent after giving effect to the
transactions contemplated herein.
13.
Effect on the Credit Agreement
. Except is specifically provided herein, the
Credit Agreement and the Loan Documents shall remain in full force and effect, and is hereby
ratified, reaffirmed and confirmed. This Amendment shall be deemed to be a Loan Document
for all purposes.
14.
Counterparts
. This Amendment may be executed in any number of separate
counterparts and by the different parties hereto on separate counterparts, each of which shall
be deemed an original and all of which, taken together, shall be deemed to constitute one and the
same instrument. In proving this Amendment in any judicial proceedings, it shall not be
necessary to produce or account for more than one such counterpart signed by the party against
whom such enforcement is sought. Delivery of an executed counterpart of this Amendment by
telefacsimile or other electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Amendment.
15.
Law of Contract
. This Amendment shall be governed and construed and
interpreted in accordance with the laws of the State of New York, without regard to its conflict of
laws principles.
-6
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first written above.
|
|
|
|
|
BORROWER:
|
ROYAL STREET COMMUNICATIONS, LLC,
a Delaware limited liability company
|
|
|
By:
|
/s/ Robert A. Gerard
|
|
|
|
Name:
|
Robert A. Gerard
|
|
|
|
Title:
|
Chief Executive Officer and Chairman of the Management Committee
|
|
|
|
|
|
|
|
Lender:
|
METROPCS WIRELESS, INC.,
a Delaware corporation
|
|
|
By:
|
/s/ Roger D. Linquist
|
|
|
|
Name:
|
Roger D. Linquist
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
-7
EXHIBIT 1 TO FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
MetroPCS Communications, Inc., an affiliate of Royal Streets largest current customer, MetroPCS
Wireless, Inc. (MetroPCS), was recently sued for patent infringement in United States District
Court for the Eastern District of Texas, Marshall Division,
Leap Wireless International, Inc. et al
v. MetroPCS Communications, Inc.,
Case No. 2:062CV240-TJW (Jury). MetroPCS or an affiliate thereof
has begun offering wireless service in portions of Florida using capacity purchased from Royal
Street on wireless systems owned by Royal Street (the Royal Street Systems) which are technically
and operationally compatible with the MetroPCS wireless systems that are the basis for the pending
suit. Based on the above-identified lawsuit, the then imminent, and now actual, launch of the
Royal Street Systems, and the technical similarity between the accused MetroPCS systems and the
Royal Street Systems, Royal Street expects, but is not certain, that it will be (1) named as a
defendant in the above-identified, pending patent infringement suit, or (2) sued separately for
alleged infringement of the same patent that is at issue in that suit. To date, however, Royal
Street has received no notice of any such suit and no such suit is currently pending against Royal
Street. Royal Street filed a declaratory judgment action on September 22, 2006 in the United States
District Court for the Middle District of Florida. The defendants therein, Leap Wireless
International, Inc. and Cricket Communications, Inc., have filed a motion to dismiss that
declaratory action or in the alternative to transfer the declaratory judgment section to the
Eastern District of Texas, which motion remains pending.
-8
Exhibit 10.10
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ROYAL STREET COMMUNICATIONS, LLC
by and between
C9 WIRELESS, LLC
and
GWIPCS1, INC.
and
METROPCS WIRELESS, INC.
|
|
|
***
|
|
Where this marking appears throughout this Exhibit 10.10,
information has been omitted pursuant to a request for confidential
treatment and such information has been filed with the SEC separately.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
ARTICLE 1 Definitions
|
|
|
1
|
|
1.1. Certain Definitions
|
|
|
1
|
|
1.2. Construction
|
|
|
14
|
|
ARTICLE 2 Royal Street and its Business
|
|
|
14
|
|
2.1. Formation; Effectiveness
|
|
|
14
|
|
2.2. Company Name
|
|
|
14
|
|
2.3. Term
|
|
|
14
|
|
2.4. Filing of Certificate and Amendments
|
|
|
14
|
|
2.5. Purpose and Business; Powers; Scope of Members Authority
|
|
|
15
|
|
2.6. Principal Office; Registered Agent
|
|
|
15
|
|
2.7. Names and Addresses of Members
|
|
|
15
|
|
2.8. Partnership Treatment
|
|
|
16
|
|
2.9. Annual Budgets
|
|
|
16
|
|
2.10. Business Plans
|
|
|
17
|
|
ARTICLE 3 Representations and Warranties
|
|
|
18
|
|
3.1.
Representations and Warranties of C9 Wireless, GWI and the MPCS Member
|
|
|
18
|
|
3.2. Representations and Warranties of C9 Wireless
|
|
|
19
|
|
3.3.
Representations and Warranties of GWI and the MPCS Member
|
|
|
19
|
|
ARTICLE 4 Covenants
|
|
|
20
|
|
4.1. Eligible Entrepreneur and Very Small Business
|
|
|
20
|
|
4.2. Maintenance of Financing
|
|
|
21
|
|
4.3. [Intentionally deleted]
|
|
|
21
|
|
4.4. Successful Bidder
|
|
|
21
|
|
4.5. Third Party Financing
|
|
|
21
|
|
4.6. Competition
|
|
|
21
|
|
4.7. Cooperation
|
|
|
22
|
|
4.8. Compliance With Law
|
|
|
22
|
|
ARTICLE 5 Transfer Restrictions
|
|
|
23
|
|
5.1. Transfers
|
|
|
23
|
|
-i-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
5.2. Right of First Refusal for Transfer of LLC Units
|
|
|
24
|
|
5.3. Right of First Refusal in Event of Disposition of Royal Street Assets
|
|
|
26
|
|
5.4. C9 Wireless Put Rights
|
|
|
28
|
|
5.5. [Intentionally deleted]
|
|
|
31
|
|
5.6. Allocation Between Transferor and Transferee
|
|
|
31
|
|
ARTICLE 6 Management of Royal Street
|
|
|
31
|
|
6.1. Management of Royal Street
|
|
|
31
|
|
6.2. Place of Management Committee Meetings
|
|
|
35
|
|
6.3. Meetings
|
|
|
35
|
|
6.4. Telephonic Meetings
|
|
|
35
|
|
6.5. Notice of Meetings
|
|
|
35
|
|
(a) Written
notice of a Management Committee Meeting shall state the place, date and hour of such Management Committee Meeting and the general nature of the business to be transacted
|
|
|
35
|
|
6.6. Waivers
|
|
|
35
|
|
6.7. Quorum
|
|
|
36
|
|
6.8. Proxies
|
|
|
36
|
|
6.9. Voting Power
|
|
|
36
|
|
6.10. Written Consent
|
|
|
36
|
|
6.11. Compensation
|
|
|
36
|
|
6.12. Officers
|
|
|
36
|
|
6.13. Liability
|
|
|
37
|
|
6.14. Indemnification with Respect to Managers and Officers
|
|
|
37
|
|
6.15. Insurance
|
|
|
38
|
|
ARTICLE 7 Members
|
|
|
38
|
|
7.1. Powers of Members
|
|
|
38
|
|
7.2. Partition
|
|
|
38
|
|
7.3. Place of Members Meetings
|
|
|
38
|
|
7.4. Meetings
|
|
|
38
|
|
7.5. Telephonic Meetings
|
|
|
38
|
|
7.6. Notice of Meetings
|
|
|
38
|
|
-ii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
7.7. Waivers
|
|
|
39
|
|
7.8. Quorum
|
|
|
39
|
|
7.9. Proxies
|
|
|
39
|
|
7.10. Written Consent
|
|
|
39
|
|
7.11. Designation of Tax Matters Member; Tax Matters
|
|
|
39
|
|
ARTICLE 8 Additional Members
|
|
|
40
|
|
8.1. Admission
|
|
|
40
|
|
8.2. Acceptance of Prior Acts
|
|
|
40
|
|
ARTICLE 9 Capital Contributions and Capital Accounts
|
|
|
40
|
|
9.1. Capital Contributions
|
|
|
40
|
|
9.2. Status of Capital Contributions
|
|
|
42
|
|
9.3. Capital Accounts
|
|
|
42
|
|
9.4. No Withdrawals
|
|
|
42
|
|
9.5. LLC Units Upon Execution of the Agreement and at the Funding Date
|
|
|
42
|
|
9.6. Other Rights
|
|
|
42
|
|
9.7. Return of Capital
|
|
|
42
|
|
9.8. Redemption
|
|
|
43
|
|
ARTICLE 10 Allocations and Distributions
|
|
|
43
|
|
10.1. Allocation Rules
|
|
|
43
|
|
10.2. Distributions
|
|
|
47
|
|
10.3. Distribution upon Dissolution
|
|
|
47
|
|
10.4. Limitations on Distributions
|
|
|
47
|
|
ARTICLE 11 Financial Reports; Books and Records
|
|
|
48
|
|
11.1. Financial Reports
|
|
|
48
|
|
11.2. Books and Records
|
|
|
48
|
|
ARTICLE 12 Indemnification
|
|
|
49
|
|
12.1. Indemnification by C9 Wireless
|
|
|
49
|
|
12.2. Indemnification by GWI
|
|
|
49
|
|
12.3. Loss of Entrepreneur and Very Small Business Status; Other Transfers of LLC Units
|
|
|
50
|
|
-iii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
12.4. Limitations on Indemnification Obligations
|
|
|
51
|
|
12.5. Indemnification Procedure
|
|
|
52
|
|
12.6. Mitigation of Damages
|
|
|
53
|
|
ARTICLE 13 Termination of Royal Street; Liquidation and Distribution of Assets
|
|
|
53
|
|
13.1. No Dissolution
|
|
|
53
|
|
13.2. Events Causing Dissolution
|
|
|
53
|
|
13.3. Winding Up
|
|
|
54
|
|
13.4. Distribution Upon Liquidation
|
|
|
54
|
|
13.5.
Distributions to Members. (a)
|
|
|
55
|
|
13.6. Claims of the Members
|
|
|
55
|
|
ARTICLE 14 Withdrawal of a Member
|
|
|
55
|
|
14.1. Withdrawal of a Member
|
|
|
55
|
|
14.2. Effect of Withdrawal
|
|
|
55
|
|
ARTICLE 15 Confidentiality
|
|
|
55
|
|
15.1. General
|
|
|
55
|
|
15.2. Obligation to Protect Proprietary Information
|
|
|
55
|
|
15.3. Judicial or Administrative Proceedings
|
|
|
56
|
|
15.4. Loss or Unauthorized Use
|
|
|
56
|
|
15.5. Nondisclosure Agreements
|
|
|
56
|
|
15.6. Termination
|
|
|
56
|
|
15.7. Irreparable Injury by Disclosure to Third Parties
|
|
|
56
|
|
15.8. Survival of Nondisclosure Obligations
|
|
|
57
|
|
ARTICLE 16 Miscellaneous
|
|
|
57
|
|
16.1. Certificates
|
|
|
57
|
|
16.2. Governing Law
|
|
|
58
|
|
16.3. VENUE; WAIVER OF JURY TRIAL
|
|
|
58
|
|
16.4. Notices
|
|
|
58
|
|
16.5. Severability
|
|
|
61
|
|
16.6. Counterparts
|
|
|
61
|
|
16.7. Successors and Assigns
|
|
|
61
|
|
-iv-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
16.8. Entire Agreement; Amendment; Waiver
|
|
|
61
|
|
16.9. Further Assurances; Controlled Subsidiaries
|
|
|
61
|
|
16.10. THIRD PARTY BENEFICIARIES
|
|
|
62
|
|
16.11. Exculpation
|
|
|
62
|
|
16.12. Joint Work Product
|
|
|
62
|
|
16.13. Expenses
|
|
|
62
|
|
16.14. Publicity
|
|
|
62
|
|
16.15. Regulatory Filings
|
|
|
63
|
|
16.16. No Brokers or Finders
|
|
|
63
|
|
16.17. [Intentionally deleted]
|
|
|
63
|
|
ARTICLE 17 Dispute Resolution
|
|
|
63
|
|
17.1. Informal Discussions
|
|
|
63
|
|
17.2. Arbitration
|
|
|
63
|
|
-v-
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF ROYAL STREET COMMUNICATIONS, LLC (this Agreement) is executed on
December 15, 2005 as of November 24, 2004, by and between C9 WIRELESS, LLC,
a Delaware limited liability company (C9 Wireless), GWI PCS1, INC., a
Delaware corporation (GWI), and MetroPCS Wireless, Inc. (as an authorized
assignee of MetroPCS, Inc.s LLC Interest), a Delaware corporation (the
MPCS Member).
WHEREAS,
C9 Wireless, GWI and the MPCS Member have caused the formation of
a limited liability company under the Delaware Limited Liability Company Act,
as amended (the Act), to be known as Royal Street Communications, LLC (Royal
Street) for the purposes of participating as a bidder and obtaining Licenses
offered in Auction No. 58 (as hereinafter defined), and to Build-Out and
operate the Royal Street System on the terms and conditions set forth herein;
WHEREAS, the parties desire to amend and restate in its entirety the
Limited Liability Company Agreement of Royal Street, which originally was
entered into as of November 24, 2004, by and among C9 Wireless, GWI and MPCS
Members predecessor in interest;
WHEREAS, it is the intention of Royal Street, and the parties hereto that
this Agreement be considered in conjunction with the Services Agreement (as
hereinafter defined) as part of a single, integrated transaction, it being
understood and agreed that they offer greater value when considered together
rather than individually.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
ARTICLE 1
Definitions
1.1.
Certain Definitions
. For the purposes of this
Agreement, the following terms shall have the following meanings:
Act
shall have the meaning set forth in the recitals hereto.
Additional Member
shall have the meaning set forth in Section
8.1 (a).
Adjusted Capital Account Deficit
shall mean, with respect to any Member,
the deficit balance, if any, in such Members Capital Account as of the end of
the relevant Fiscal Year, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts such Member is obligated
to restore or is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Sections 1.704-2(g)(l) and 1.704-2(i)(5); and
(b)
Debit to such Capital Account the items described in Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended
to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d)
and shall be interpreted consistently therewith.
Affiliate
shall mean, with respect to any Person, any Person directly
or indirectly Controlling, Controlled by, or under Common Control with such
other Person at any time during the period for which the determination of
affiliation is being made. Affiliates of GWI shall include the MPCS Member and
their respective Affiliates. In no event shall any lender or other provider of
the Financing be deemed an Affiliate of Royal Street, C9 Wireless or GWI for
any purposes hereunder or under any of the Ancillary Agreements.
Agreement
shall have the meaning set forth in the preamble.
Ancillary Agreements
shall mean the Services Agreement, the Credit
Agreement and the Equipment and Facilities Lease Agreement, and all
attachments thereto.
Annual Budget
shall have the meaning set forth in Section 2.9(a) of
this Agreement.
Annual Business Plan
shall have the meaning set forth in Section
2.10(c) of this Agreement.
Applicable Law
shall mean, with respect to any Person, any federal,
state, local or foreign law, statute, ordinance, rule, regulation, judgment,
order, injunction, decree, arbitration award, agency requirement, franchise,
license or permit of, or any interpretation or administration of any of the
foregoing, by any Governmental Entity, whether in effect as of the date hereof
or thereafter, and in each case as amended, applicable to such Person or its
Affiliates or their respective assets.
Auction No. 58
shall mean the Broadband PCS Auction to be conducted by
the FCC as described in Public Notice, DA-04-3005 (rel. Sept. 16, 2004), as
the same may be rescheduled or modified by the FCC.
Auction Process
shall mean the process and procedure through which
those licenses being auctioned by the FCC in Auction No. 58 are being offered
to qualified bidders, qualified bidders bid on, and Successful Bidders are
ultimately awarded licenses, as amended by the FCC from time-to-time.
Auction Schedule
shall have the meaning set forth in Section 4.4.
A Person shall be deemed the
Beneficial Owner,
and to have
Beneficial
Ownership
of, and to
Beneficially Own,
any securities as to which such
Person is or may be deemed to be the beneficial owner pursuant to Rule 13d-3
and 13d-5 under the Exchange Act, as such rules are in effect on the date of
this Agreement, as well as any securities as to which such Person has the
right to become Beneficial Owner (whether such right is exercisable
immediately or only after the passage of time or the occurrence of conditions)
pursuant to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a
bona
fide
public offering of securities), or upon the
-2-
exercise of conversion rights, exchange rights, rights, warrants or
options, put or call rights, or otherwise;
provided
,
however
, that no
Initial Member shall be deemed the Beneficial Owner or to have Beneficial
Ownership of, or to Beneficially Own, any LLC Units owned by the other
Initial Member solely by virtue of the rights set forth in this Agreement.
Bidding Credit
shall mean a bidding credit as defined in the FCC Rules
at 47 C.F.R. § 1.2110(f) and as applied by the FCC in Auction No. 58.
Bona Fide Offer
shall mean a written offer for Royal Streets Assets or
a Members LLC Interest Units made at arms length by a Person who is not an
Affiliate of C9 Wireless with the capacity to consummate the offer, which offer
shall set forth (i) the name and address of the offeror, (ii) the price and
other material terms of the offer, and (ii) a description of any financing
arrangements related to the transaction.
Budget Officer
shall have the meaning set forth in Section 2.9(c) of
this Agreement.
Build-Out
shall mean the construction of a Commercial Mobile Radio
Service system in accordance with the FCC Rules, 47 C.F.R. § 24.203, as the
same may be amended from time to time.
Business
shall mean the provision of wholesale CMRS services utilizing
code division multiple access technology or such other business as Royal Street
may conduct in accordance with the terms of this Agreement.
Business Day
shall mean any day other than a Saturday, a Sunday or a day
on which banks in New York City are authorized or obligated by law or executive
order to close.
Business Plan
shall have the meaning set forth in Section 2.10(a) of
this Agreement.
Capital Account
shall mean, with respect to any Member, the Capital
Account maintained for such Member in accordance with the following provisions:
(a) To each Members Capital Account there shall be credited such
Members
Capital Contributions, such Members distributive share of Profits and
any items in the nature
of income or gain which are specially allocated pursuant to Section
10.1(c), and the amount of
any Royal Street liabilities assumed by such Member or secured by any
Royal Street Asset
distributed to such Member.
(b) To each Members Capital Account there shall be debited the amount
of
cash and the Gross Asset Value of any Royal Street Asset distributed to
such Member
pursuant to any provision of this Agreement, such Members distributive
share of Losses and
any items in the nature of expenses or losses that are specially
allocated pursuant to Section
10.1(c), and the amount of any liabilities of such Member assumed by
Royal Street or secured
by any property contributed by such Member to Royal Street.
-3-
(c) In the event any interest in Royal Street is properly
assigned or transferred
in accordance with the terms of this Agreement, the transferee shall
succeed to the Capital
Account of the transferor to the extent it relates to the transferred
interest in Royal Street.
(d) In determining the amount of any liability for purposes of this
definition,
there shall be taken into account Code Section 752(c) and any other
applicable provisions of
the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Regulations
Section 1.704-1(b), and shall be interpreted and applied in a manner consistent
with such Regulations.
Capital Contribution
shall mean, with respect to any Member, the amount
of money and the initial Gross Asset Value of any property (other than money)
contributed to Royal Street with respect to the interest in Royal Street held by
such Member or the value of any liabilities of Royal Street assumed by a Member.
The principal amount of a promissory note that is not readily traded on an
established securities market and that is contributed to Royal Street by the
maker of the note shall not be included in the Capital Account of any Member
until Royal Street makes a taxable disposition of the note or until (and to the
extent) principal payments are made on the note, all in accordance with
Regulations Section 1.704-1 (b)(2)(iv)(d)(2).
CEO
shall have the meaning set forth in Section 6.12(a).
Certificate of Formation
shall mean the Certificate of Formation of Royal
Street filed pursuant to the Act with the Secretary of State of the State of
Delaware, as the same may hereafter be amended and/or restated from time to
time.
Chairman
shall have the meaning set forth in Section 6.1(b).
Change of Control
shall mean, with respect to any Person, any
transaction or series of transactions, occurring after the date that it becomes
subject to this Agreement, pursuant to which another Person gains Control of
such other Person. For purposes of this Agreement, a change of de facto or de
jure control shall be deemed a Change of Control hereunder.
Code
shall mean the Internal Revenue Code of 1986, as amended.
Commercial Mobile Radio Service
or
CMRS
shall mean a commercial mobile
radio service as defined in the FCC Rules at 47 C.F.R. § 20.3.
Contracts
shall mean all agreements, contracts, leases and subleases,
purchase orders, arrangements, commitments, non-governmental licenses, notes,
mortgages, indentures or other obligations.
Control
(including the correlative meanings of the terms
Controlling,
Controlled by and under Common Control with),
as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power in fact
or in law to direct or cause the direction of management policies of such
Person, whether through the ownership of Voting Securities, by contract or
otherwise.
-4-
C9 Wireless
shall have the meaning set forth in the preamble.
C9 Wireless Indemnified Party
shall mean C9 Wireless and its
officers, directors, employees and agents.
C9 Wireless Managers
shall have the meaning set forth in Section 6.1(c).
Credit Agreement
shall mean that certain Second Amended and Restated
Credit Agreement by and between MetroPCS Wireless and Royal Street executed on
December 15, 2005 as of December 22, 2004, as it may be further amended from
time to time, including the agreements and other documents attached thereto.
Damages
shall mean, with respect to a Person, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
proceedings, costs, expenses and disbursements of any kind or nature
whatsoever (including reasonable attorneys fees, costs of investigation,
fines, judgments and amounts paid in settlement) actually incurred by such
Person.
Depreciation
shall mean, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization or other cost recovery
deduction allowable with respect to an asset for such year or other period,
except that if the Gross Asset Value of an asset differs from its adjusted
basis for federal income tax purposes at the beginning of such year or other
period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation,
amortization or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method under Code Section
704(c) selected by the Management Committee.
Disposition
shall have the meaning set forth in Section 5.3(a).
Disposition Assets
shall have the meaning set forth in Section
5.3(b).
Disposition Election Notice
shall have the meaning set
forth in Section 5.3(c).
Disposition Notice
shall have the
meaning set forth in Section 5.3(b).
Disposition ROFR Termination Date
shall have the meaning set forth in
Section 5.3(d).
Disputing Members
shall have the meaning set forth in Section 17.1.
Distributable Cash
shall mean, with respect to any Fiscal Year, the
excess, if any, of (A) the sum of (x) the amount of all cash received by Royal
Street during such Fiscal Year and (y) any cash and cash equivalents held by
Royal Street at the start of such Fiscal Year
over
(B) the sum of (x)
all cash amounts paid or payable (without duplication) in such Fiscal
-5-
Year by Royal Street and (y) the net amount of cash needs for Royal Street
set forth in the budget for the following Fiscal Year.
Effective Date
shall have the meaning set forth in
Section 2.1.
Election Notice
shall have the meaning set
forth in Section 5.2(b).
Entrepreneur
shall mean an entrepreneur in accordance with the
eligibility requirements stated in the FCC Rules at 47 C.F.R. § 24.709(a) and
as applied by the FCC in Auction No. 58.
Equipment and Facilities Lease Agreement
shall mean that certain Master
Equipment and Facilities Lease Agreement by and between MetroPCS Wireless and
Royal Street, entered into pursuant to Section 5.1(h) of the Services
Agreement.
Excess Cash
shall have the meaning set forth in Section 10.2(b).
Exchange Act
shall mean the Securities Exchange Act of 1934, as
amended.
Exercise Notice
shall have the meaning set forth in
Section 5.4(c).
Exiting Member
shall have the meaning set forth
in Section 5.2(a).
Fair Market Value
shall mean, with respect to any asset, as of the date
of determination, the cash price at which a willing seller would sell, and a
willing buyer would buy, each being apprised of all relevant facts and neither
acting under compulsion, such asset in an arms length, negotiated transaction
with an unaffiliated third party without time constraints.
FCC
shall mean the Federal Communications Commission or any successor
agency thereof.
FCC Rules
shall mean any applicable rules and regulations of the FCC as
the same may be amended from time to time.
Fifth Anniversary
shall mean the date that is the first Business Day
immediately following the fifth anniversary of the License Grant Date for each
License granted to Royal Street in Auction No. 58, provided, however, that if
Royal Street or a Holding Subsidiary holds multiple Licenses that have more
than one License Grant Date, then the Fifth Anniversary shall mean the first
Business Day immediately following the fifth anniversary for the last such
License granted.
Final Order
shall mean an order as to which the time for filing a
request for administrative or judicial relief, or for instituting
administrative review
sua
sponte
, shall have expired without any such
filing having been made or notice of review having been issued; or, in the
event of such filing or review
sua
sponte
, as to which such filing or
review shall have been disposed of favorably to the order and the time for
seeking further relief with respect thereto shall have expired without any
request for such further relief having been filed.
-6-
Financing
shall have the meaning set forth in Section 3.2(d).
Fiscal Year
shall mean the fiscal year of Royal Street, which shall be the period
commencing on January 1 in any year and ending on December 31 in such year, or such other
fiscal year that the Management Committee shall determine is required under the Code.
GAAP
shall mean United States generally accepted accounting principles as in effect
from time to time.
Governmental Entity
shall mean any government or political subdivision thereof,
including any regional or municipal authority, any governmental department, ministry,
commission, board, bureau, agency, regulatory authority, instrumentality, judicial or
administrative body, having jurisdiction over the matter or matters in question.
Gross Asset Value
shall mean, with respect to any asset, the assets adjusted basis
for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Member to
Royal Street shall be the gross Fair Market Value of such asset, as
determined by the
contributing Member and Royal Street;
(b) The Gross Asset Values of all Royal Street Assets shall be adjusted to equal
their respective gross Fair Market Values, as determined by the Management
Committee, as
of the following times: (i) the acquisition of an additional interest in Royal
Street by any new
or existing Member in exchange for more than a de minimis Capital Contribution;
(ii) the
distribution by Royal Street to a Member of more than a de minimis amount of Royal
Street
Assets as consideration for an interest in Royal Street; and (iii) the liquidation
of Royal Street
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
provided,
however,
that the
adjustments pursuant to clauses (i) and (ii) above shall be made only if the
Management
Committee reasonably determines that such adjustments are necessary or appropriate
to
reflect the relative economic interests of the Members in Royal Street;
(c) The Gross Asset Value of any Royal Street Asset distributed to any Member
shall be the gross Fair Market Value of such asset on the date of distribution;
and
(d) The Gross Asset Values of Royal Street Assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code
Section 734(b) or 743 (b), but only to the extent that such adjustments are taken
into account
in determining Capital Accounts pursuant to Regulations Section 1.704-1
(b)(2)(iv)(m) and
Section 10.1(c)(vii);
provided,
however,
that Gross Asset Values shall not
be adjusted
pursuant to this clause (d) to the extent the Management Committee determines that
an
adjustment pursuant to clause (b) above is necessary or appropriate in connection
with a
transaction that would otherwise result in an adjustment pursuant to this clause
(d).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
clause (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the
-7-
Depreciation taken into account with respect to such asset for purposes of computing Profits and
Losses.
GWI
shall have the meaning set forth in the Preamble.
GWI Manager
shall have the meaning set forth in Section 6.1(c).
Holding Subsidiary
shall mean an LLC formed under the laws of the State of Delaware, all of
the LLC units of which shall be owned by Royal Street, which LLC shall have as its sole purpose to
hold the License(s) and assets in a given Market to be used by Royal Street in connection with the
Royal Street System in such Market.
Holding Subsidiary Put
shall have the meaning set forth in Section 5.4(a)(ii).
Indemnified Party
shall have the meaning set forth in Section 6.14(a).
Initial Member
shall mean each of C9 Wireless, GWI and the MPCS Member and their permitted
Affiliates, successors or assigns.
IRS
shall mean the Internal Revenue Service or any successor agency thereof.
License
shall mean any license for which Royal Street is a Successful Bidder.
License Grant Date
shall mean the grant date set forth on any license granted to Royal
Street by the FCC in Auction No. 58.
Lien
shall mean any mortgage, pledge, lien, deed of trust, hypothecation, claim, security
interest, title defect, encumbrance, burden, tax lien (as used in Section 6321 of the Code, and the
rules and regulations promulgated thereunder or similarly by any State, local, or foreign tax
authority), charge, or other similar restriction, title retention agreement, option, easement,
covenant, encroachment or other adverse claim.
Liquidation
shall have the meaning set forth in Section 13.4.
LLC Interest
shall mean a Members entire limited liability company interest in Royal Street
at any particular time, including such Members share of the profits and losses of Royal Street and
right to receive distributions of Royal Streets assets, and all other benefits to which a Member
may be entitled, all in accordance with the provisions of this Agreement and the Act, together with
the obligations of such Member to comply with all the terms and provisions of this Agreement.
LLC Unit
shall mean a fractional, undivided share of the LLC Interests of all Members issued
pursuant hereto.
Major Trading Area or MTA
shall have the meaning ascribed to it in the FCC rules at 47
C.F.R. Section 24.202(a).
Management Committee
shall have the meaning set forth in Section 6.1(b).
-8-
Management Committee Meeting
shall have the meaning set forth in Section 6.2.
Manager
shall have the meaning set forth in Section 6.1(b).
Market
shall mean the geographic area(s) in which Royal Street is authorized by the FCC to
provide Commercial Mobile Radio Service.
Material Adverse Effect
shall mean a material adverse effect on the financial condition,
properties, Business or results of operations, including Liquidation, of Royal Street, C9 Wireless
or GWI, as the case may be, or any of their respective Subsidiaries, other than effects arising out
of (i) general changes in economic conditions of the United States, (ii) changes affecting the
Commercial Mobile Radio Service industry, generally, and (iii) changes to the FCC Rules, including
changes to the Auction Process.
Material Spectrum License
shall mean any License which (a) has a Fair Market Value in excess
of ***; (b) which pertains to a Market where Royal Street has completed its initial
construction and is offering commercial service on a wholesale basis; or (c) is immediately
adjacent to a License which meets (a) or (b).
Member
shall initially mean each of C9 Wireless, GWI and the MPCS Member, and shall include
thereafter their respective successors and permitted transferees, and any other members admitted to
Royal Street in accordance with Section 8.1.
Member Minimum Gain
shall mean an amount, with respect to each Member Nonrecourse Debt,
equal to the Minimum Gain that would result if such Member Nonrecourse Debt were treated as a
Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i).
Member Nonrecourse Debt
shall mean partner nonrecourse debt as described in
Regulations Section 1.704-2(b)(4).
Member Nonrecourse Deductions
shall mean partner nonrecourse deductions as described in
Regulations Section 1.704-2(i). The amount of Member Nonrecourse Deductions with respect to a
Member Nonrecourse Debt for a Fiscal Year equals the excess, if any, of the net increase, if any,
in the amount of Member Minimum Gain attributable to such Member Nonrecourse Debt during that
Fiscal Year over the aggregate amount of any distributions during that Fiscal Year to the Member
that bears the economic risk of loss for such Member Nonrecourse Debt to the extent such
distributions are from the proceeds of such Member Nonrecourse Debt and are allocable to an
increase in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(2).
Members Meeting
shall have the meaning set forth in Section 7.3.
MetroPCS
shall mean MetroPCS, Inc., a Delaware corporation.
-9-
MetroPCS Communications
shall mean MetroPCS Communications, Inc., a Delaware
corporation.
MetroPCS Wireless
shall mean MetroPCS Wireless, Inc., a Delaware corporation.
MetroPCS Indemnified Parties
shall mean MetroPCS Communications and its Affiliates,
and their respective parents, subsidiaries, sister companies, and all of their officers,
directors, employees and agents.
MetroPCS Parties
shall mean MetroPCS Wireless, GWI and their Affiliates.
Minimum Gain
shall mean partnership minimum gain as described in
Regulations Sections 1.704-2(b)(2) and (d).
MPCS Member
shall have the meaning set forth in the preamble.
Nonrecourse Deductions
has the meaning set forth in Regulations Sections
1.704-2(b)(l) and (c). The amount of Nonrecourse Deductions for a Fiscal Year equals the
excess, if any, of the net increase, if any, in the amount of Minimum Gain during that
Fiscal Year over the aggregate amount of any distributions during that fiscal year of
proceeds of a Nonrecourse Liability that are allocable to an increase in Minimum Gain,
determined according to the provisions of Regulations Section 1.704-2(c).
Nonrecourse Liability
has the meaning set forth in Regulations Section
1.752-1(a)(2).
Officers
shall mean such officers of Royal Street as shall from time to time be
appointed by the Management Committee until such time as any such Officer is removed in
accordance with the terms of his or her appointment.
PCS
shall mean personal communications services as defined in the FCC Rules
at 47 C.F.R. § 24.5.
Parties
shall initially mean C9 Wireless, GWI and the MPCS Member, and shall
thereafter include any other Person executing a counterpart of this Agreement.
Percentage Interest
shall mean a Members aggregate economic percentage interest in
Royal Street as determined by dividing the number of LLC Units owned by such Member by the
number of LLC Units then owned by all Members. The Percentage Interests of the Members as
of the date hereof are set forth in Section 9.5.
Person
shall mean any natural person, corporation, firm, unincorporated
organization, association, partnership, limited liability company, business trust,
joint stock company, joint venture organization, entity or business of any kind.
Planning Group
shall have the meaning set forth in Section 2.10(a) of this
Agreement.
-10-
POPs
shall refer to the population within a Market calculated in accordance with
the then-governing standard in the United States Commercial Mobile Radio Services
industry.
Profits
and
Losses
shall mean, for each Fiscal Year or other period, an amount
equal to Royal Streets taxable income or loss for such year or period, determined in
accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code Section 703(a)(l) shall be
included in taxable income or loss), with the following adjustments:
(a) Any income of Royal Street that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition shall
be added to such taxable income or loss;
(b) Any expenditures of Royal Street described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or
Losses pursuant to
this definition, shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Royal Street Asset is adjusted
pursuant to clause (b) or (c) of the definition of Gross Asset Value, the amount
of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for
purposes of computing Profits or Losses;
(d) Gain or loss resulting from any disposition of a Royal Street Asset with
respect to which gain or loss is recognized for federal income purposes shall be
computed by
reference to the Gross Asset Value of the asset disposed of, notwithstanding that
the adjusted
tax basis of such asset differs from its Gross Asset Value;
(e) In lieu of the depreciation, amortization and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be taken
into account
Depreciation for such Fiscal Year or other period, computed in accordance the
definition of
Depreciation; and
(f) Notwithstanding any other provisions of this definition, any items that are
specially allocated pursuant to Section 10.1(c) shall not be taken into account in
computing
Profits or Losses.
Proprietary Information
shall mean information of a confidential and
proprietary nature that a Party has the right to possess, and that the Party
maintains in confidence.
Put
shall have the meaning set forth in Section 5.4(a)(ii).
Put Closing Date
shall have the meaning set forth in Section 5.4(d)(i).
Put Interest
shall have the meaning set forth in Section 5.4(d)(i).
-11-
Refund
shall be any amounts that Royal Street paid in accordance with FCC Rules to
become eligible to participate in the Auction No. 58 and that thereafter are refunded to
Royal Street.
Regulations
shall mean the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
Representatives
shall have the meaning set forth in Section 17.1.
ROFR Termination Date
shall have the meaning set forth in Section 5.2(c).
Royal Street
shall have the meaning set forth in the recitals hereto.
Royal Street Assets
shall mean all right, title and interest of Royal Street
whether now or hereafter existing, in and to all or any portion of the assets of Royal
Street and any applicable Holding Subsidiary, including the Licenses and any property
(real or personal) or estate acquired in exchange therefor or in connection therewith.
Royal Street Indemnified Parties
shall mean Royal Street and its Affiliates, and
their respective parent, subsidiary, sister companies, and all of their respective
officers, directors, employees and agents.
Royal Street Put
shall have the meaning set forth in Section 5.4(a)(i).
Royal Street Products and Services
shall mean the creation and provision by Royal
Street of Commercial Mobile Radio Services and any activities related thereto.
Royal Street System
shall mean the Commercial Mobile Radio Service using CDMA
system(s) constructed and operated by Royal Street in each of the Markets pursuant to the
Licenses.
Securities Act
shall mean the Securities Act of 1933, as amended.
Seventh Anniversary
shall mean the date that is two calendar years after the Fifth
Anniversary.
Services Agreement
shall mean the Services Agreement by and between MetroPCS
Wireless and Royal Street, executed on December 15, 2005 as of November 24, 2004, as it
may be amended from time to time.
Sixth Anniversary
shall mean the date that is one calendar year after the Fifth
Anniversary.
Subsidiary
shall mean, as to any Person, any Person (i) of which such Person
directly or indirectly owns securities or other equity interests representing fifty
percent (50%) or more of the aggregate voting power, (ii) of which such Person possesses
fifty percent (50%) or
-12-
more of the right to elect directors or Persons holding similar positions or (iii) which
such Person Controls directly or indirectly through one or more intermediaries.
Substantial Completion Date
shall mean the date on which the Build-Out of the Royal
Street System satisfies the construction requirements of Section 24.203 of the FCC Rules.
Successful Bidder
shall mean a Person that is awarded one or more licenses by the
FCC pursuant to the Auction Process related to Auction No. 58 and successfully qualifies
to be a licensee for such license(s) under applicable FCC Rules.
Tax
shall mean any federal, state, local or foreign income, profits, franchise,
gross receipts, environmental, customs duty, stamp, payroll, sales, employment,
disability, use, property, withholding, excise, production, value added, occupancy or
other tax, duty or assessment of any nature whatsoever, together with all interest,
penalties and additions imposed with respect to such amounts.
Tax Matters Member
shall have the meaning set forth in Section 7.11.
Transfer
shall mean any direct or indirect sale, transfer, assignment, pledge
(other than in connection with the Financing, and, subject to Section 5.1(e), any
foreclosures resulting therefrom), hypothecation, mortgage, or other disposition or
encumbrance, of any beneficial or economic interest in any LLC Units, including those by
operation or succession of law, merger, change in control or otherwise, but a Change of
Control of GWI or the MPCS Member shall not be deemed to be a Transfer.
Transfer Notice
shall have the meaning set forth in Section 5.2(a)
Transferred Securities
shall have the meaning set forth in Section
5.2(a).
United States
shall mean the United States of America, including the forty-eight
contiguous states, Hawaii, Alaska, the District of Columbia and all of its territories and
possessions.
Unjust Enrichment Payment
shall mean a payment required to be made to the FCC to
reimburse Bidding Credits in accordance with the FCC Rules at 47 C.F.R. § 1.2111, as the
same may be amended from time to time.
Very Small Business
shall mean a very small business as defined in FCC Rules
at 47 C.F.R. § 24.720(b), and as applied by the FCC in Auction No. 58.
Voting Securities
shall mean any securities entitled to vote in the ordinary course
in the election of directors or of Persons serving in a similar governing capacity of any
partnership, limited liability company or other Person, including the voting rights
attached to such securities.
Withdrawal Event
shall have the meaning set forth in Section 14.1.
-13-
1.2.
Construction.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (a) words used in this Agreement, regardless of
the gender and number specifically used, will be deemed and construed to include any other gender
and any other number as the context requires; (b) as used in this Agreement, the word including
is not limiting, and the word or is not exclusive; (c) except as specifically otherwise provided
in this Agreement in a particular instance, a reference to a Section, Schedule, Attachment,
Appendix or Exhibit is a reference to a Section of this Agreement or a Schedule, Attachment,
Appendix or Exhibit hereto, and the terms this Agreement, hereof, herein, and other like
terms refer to this Agreement as a whole, including the Schedules and Exhibits to this Agreement,
and not solely to any particular part of this Agreement; (d) the descriptive headings in this
Agreement are inserted for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement; (e) as used in this Agreement, unless
otherwise specifically noted herein, the word day or days means a calendar day or days,
respectively, including weekends and holidays; and (f) any reference to any Law or Governmental
Entity shall be deemed to also refer to any successor thereof.
ARTICLE 2
Royal Street and its Business
2.1.
Formation; Effectiveness.
Royal Street has been formed as a limited liability
company under the provisions of the Act by the filing of the Certificate of Formation with the
Secretary of State of the State of Delaware. Pursuant to Section 18-201(d) of the Act, this
Agreement is effective as of November 24, 2004 (the Effective Date).
2.2.
Company Name.
The business of Royal Street initially shall be conducted in the
State of Delaware under the name Royal Street Communications, LLC and under such name or
such assumed names as the Management Committee deems necessary or appropriate to comply
with the requirements of any other jurisdiction in which Royal Street may be required to
qualify.
2.3.
Term.
The term of Royal Street shall commence on the Effective Date and shall
continue in full force and effect until the earlier of the ***
or the earlier dissolution, winding up and termination of Royal Street in accordance with
Article
13 of this Agreement. The existence of Royal Street as a separate legal Person shall continue
until the cancellation of the Certificate of Formation as provided in the Act.
2.4.
Filing of Certificate and Amendments.
Subject to the restrictions set forth in
this
Agreement, the Management Committee or any Person designated by the Management
Committee shall (and shall have the power and authority to) execute and file or cause to be
executed and filed any amendments to the Certificate of Formation that are required pursuant
to
this Agreement or Applicable Law and do all other acts requisite for the constitution of Royal
Street as a limited liability company pursuant to the laws of the State of Delaware or any
other
Applicable Law and for enabling Royal Street or its Subsidiaries to conduct business in each
applicable jurisdiction.
-14-
2.5.
Purpose and Business; Powers; Scope of Members Authority.
(a) Royal Street has been organized for the purpose of conducting the
Business. Subject to the restrictions set forth in this Agreement, Royal Street is
empowered to
effect any purposes for which it was formed, including the exercise of all powers
granted under
the Act.
(b) Except as otherwise expressly provided in this Agreement and
notwithstanding the last sentence of Section 18-402 of the Act, no Member shall have
any
authority to bind or act for, or assume any obligations or responsibility on behalf
of, any other
Member.
(c) Except as otherwise provided in the Act, the debts, obligations and
liabilities of Royal Street, whether arising in contract, tort or otherwise, shall be
solely the debts,
obligations and liabilities of Royal Street, and no Member shall be obligated
personally for any
such debt, obligation or liability of Royal Street solely by reason of being a
Member.
(d) The Parties acknowledge and agree that, for business and operational
purposes, each License secured by Royal Street will be assigned or transferred
to a separate
Holding Subsidiary, which shall be a disregarded entity for United States
federal income tax
purposes. Licenses that are found by the Management Committee to be economically
or
geographically related may be assigned or transferred to a single Holding
Subsidiary.
(e) Royal Street shall maintain its own bank accounts. All receipts and profits
associated with the operation of the Royal Street Systems shall be deposited in Royal
Streets
bank accounts.
2.6.
Principal Office; Registered Agent.
The principal office of Royal Street
shall be
at PO Box 2365, Southampton, New York 11969. Subject to the terms hereof, Royal
Street may
change its place of business to such location or locations as may at any time or from
time to time
be determined by the Management Committee. The mailing address of Royal Street shall
be
such address as may be selected from time to time by the Management Committee. Royal
Street
shall maintain a registered office at The Corporation Trust Company, Corporation
Trust Center,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name and
address
of Royal Streets registered agent for service of process is The Corporation Trust
Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware
19801.
2.7.
Names and Addresses of Members.
The names and addresses of the
Initial
Members are as follows:
C9 WIRELESS, LLC
PO Box 2365
Southampton, NY 11969
Attention: Robert Gerard
GWIPCS1,INC. 8144
Walnut Hill Lane
-15-
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
METROPCS WIRELESS, INC.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
2.8.
Partnership Treatment.
It is intended that Royal Street will be treated
as a partnership for United States federal, state and local income tax purposes rather
than as an association taxable as a corporation. The Members agree to take any action
requested by Royal Street that may be desirable to ensure that Royal Street is so treated.
No Member shall take any action that is inconsistent with such treatment.
2.9.
Annual Budgets.
(a) An employee of Royal Street designated by the Management Committee (Budget
Officer) shall prepare the initial annual budget (the Annual Budget) for the twelve
(12) month period beginning on the Effective Date, or such other period as the Management
Committee may specify, and submit it to the Management Committee for its approval. Except
as otherwise expressly provided in this Agreement, only the Management Committee, acting
by majority vote, shall have the authority to modify the proposed Annual Budget on a
line-by-line basis and shall endeavor to approve the Annual Budget within thirty (30) days
of its submission (or such other time period as the Management Committee may establish).
(b) For all Annual Budgets subsequent to the initial Annual Budget, the Budget
Officer shall prepare and submit to the Management Committee at least ninety (90) days
prior to the expiration of the twelve (12) month period covered by the immediately
preceding Annual Budget, or such other date as the Management Committee shall direct in
writing, a proposed Annual Budget for the following twelve (12) month period. Except as
otherwise expressly provided in this Agreement, the Management Committee, acting by
majority vote, shall have the authority to modify the proposed Annual Budget on a
line-by-line basis and shall endeavor to approve the Annual Budget within thirty (30) days
of its submission (or such other time period as the Management Committee may establish).
If the Management Committee does not approve an Annual Budget before the then-current
Annual Budget expires, the Royal Street Systems shall be operated in accordance with the
Annual Budget for the prior twelve (12) month period until such time as the Management
Committee approves a new Annual Budget.
(c) Each proposed Annual Budget shall set forth, in reasonable detail, the projected
items of cost and expenses of operating the Royal Street Systems during the relevant
period, including capital expenditures, expenses, as well as the projected revenues, by
source, for that period. In addition, the Annual Budget shall set forth the various items
of capital expense projected for the relevant period, including, but not limited to, costs
of site construction, improvements in technical facilities, expansion of system capacity
and introduction of new services.
-16-
(d) The Management Committee may, in its discretion, adopt Annual Budgets on a
fiscal year basis. To the extent necessary to employ a fiscal year Annual Budget and
planning process, the Management Committee may, during the transition period, employ an
Annual Budget or planning period of more than or less than twelve (12) months.
2.10.
Business Plans.
(a) Royal Street shall establish a Planning Group (the Planning Group) consisting
of such officers and management level persons as the Management Committee may select,
provided that the majority of such members shall be employees of Royal Street or
representatives of C9 Wireless and not employees or representatives of the MetroPCS
Parties. The Planning Group shall prepare a business plan for the *** period
commencing on the License Grant Date (Business Plan), in accordance with such direction
as the Management Committee shall provide. Separate business plans may be developed for
individual Markets, groups of Markets, or different market situations as the Management
Committee shall direct. The Business Plan shall include appropriate schedules for
deployment of the CMRS systems, capital and operating budgets and such other detail as the
Management Committee shall specify. The Business Plan shall be designed to make the Royal
Street Systems competitive in each of the Markets. The Business Plan shall be submitted to
the Management Committee for its approval in accordance with such schedule as the
Management Committee shall specify, but in all events the Planning Group shall submit the
overall Business Plan for Royal Street to the Management Committee within sixty (60) days
of the Effective Date. The Management Committee may approve the Business Plan as
submitted, make such modifications as the Management Committee deems appropriate or
require the Planning Group to revise the proposal and resubmit it to the Management
Committee in accordance with such guidance and at such time as the Management Committee
shall set.
(b) At least sixty (60) days prior to the expiration of each twelve (12) month period
covered by the Business Plan, the Planning Group shall prepare and submit to the
Management Committee any proposed revisions to the Business Plan(s) which the Planning
Group believes should be made in order to better achieve the goals for the Royal Street
Systems, or any one or more of them. The Management Committee shall have the authority to
approve, modify on a line-by-line basis or return the proposed revisions to the Planning
Group for further revision. The Planning Group shall resubmit a revised Business Plan to
the Management Committee within fifteen (15) days after its return to the Planning Group
for revision.
(c) The Planning Group also shall prepare and submit to the Management Committee a
proposed Annual Business Plan (Annual Business Plan) for the twelve (12) month period
beginning on the License Grant Date or such other period as the Management Committee may
specify. Thereafter, the Planning Group shall prepare and submit to the Management
Committee at least sixty (60) days prior to the expiration of the then-current Annual
Business Plan, or such other date as the Management Committee shall direct in writing, a
proposed Annual Business Plan for the following year or such other period as the
Management Committee may decide. The Management Committee shall endeavor to approve,
modify or return the proposed Annual Business Plan to the Planning Group for revision,
within thirty (30) days of its submission by the Planning Group. The Planning Group shall
resubmit any revised
-17-
proposed Annual Business Plan within fifteen (15) days after its return to the Planning
Group for revision.
(d) Each proposed Annual Business Plan shall set forth in reasonable detail the
goals and objectives for the forthcoming year (or agreed upon period).
ARTICLE 3
Representations and Warranties
3.1.
Representations and Warranties of C9 Wireless. GWI and the MPCS
Member.
As of the Effective Date hereof, each of C9 Wireless, GWI and the MPCS Member
represents and warrants to the other that:
(a) it has all requisite power and authority and has taken all action necessary in
order to execute and deliver this Agreement and all of the Ancillary Agreements;
(b) this Agreement and each of the Ancillary Agreements being executed as of even
date herewith has been duly executed and delivered by it and is a valid and binding
agreement of it enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors rights and to general equity
principles;
(c) no notices, reports or other filings are required to be made by it with, nor are
any consents, registrations, approvals, permits or authorizations required to be obtained
by it from, any Governmental Entity, in connection with its execution and delivery of this
Agreement and each of the Ancillary Agreements being executed as of even date herewith,
except those that have been made or obtained or that the failure to make or obtain are
not, individually or in the aggregate, reasonably likely to (x) result in a Material
Adverse Effect on Royal Street or (y) prevent, materially delay or materially impair its
ability to perform its obligations under this Agreement or any of the Ancillary Agreements
being executed as of even date herewith;
(d) the execution, delivery and performance by it of this Agreement and each of the
Ancillary Agreements being executed as of even date herewith does not, and the
consummation by it of the transactions contemplated thereby will not, constitute or result
in (i) a breach or violation of, or a default under, its charter, by-laws and other
constitutive documents, (ii) a breach of or violation of or a default under, or the
acceleration of any obligations of or the creation of a Lien on its assets (with or
without notice, lapse of time or both) pursuant to, any Contracts binding upon it or any
Applicable Law or governmental or non-governmental permit or license to which it is
subject or (iii) any change in the rights or obligations of any party under any of such
Contracts to which it is a party, except, in the case of clause (ii) or (iii) above, for
any breach, violation, default, acceleration, creation or change that, individually or in
the aggregate, is not reasonably likely to (x) result in a Material Adverse Effect on
Royal Street or (y) prevent, materially delay or materially impair its ability to perform
its obligations under this Agreement or any of the Ancillary Agreements being executed as
of even date herewith; and
(e) there is no (i) legal action, claim, proceeding, investigation or controversy
pending or, to its knowledge threatened against it, or (ii) judgment, order, award or
consent-decree outstanding against or affecting it, which in either event is reasonably
likely to
-18-
(x) result in a Material Adverse Effect on Royal Street or (y) materially delay
or materially impair its ability to perform its obligations under this Agreement or
any of the Ancillary Agreements being executed as of even date herewith.
3.2.
Representations and Warranties of C9 Wireless.
As of the Effective Date hereof, C9 Wireless represents and warrants to GWI that:
(a) C9 Wireless is a duly organized limited liability company, validly existing and
in good standing under the laws of the State of Delaware;
(b) Schedule 3.2(b) hereto contains a complete and accurate listing of: (i) all
affiliates of C9 Wireless within the meaning of the FCC Rules, specifically 47 C.F.R.
Section 1.2110(c)(5); (ii) all controlling interests of C9 Wireless within the meaning
of the FCC Rules, specifically 47 C.F.R. Section 1.2110(c)(2); (iii) all affiliates of
controlling interests of C9 Wireless within the meaning of the FCC Rules, specifically 47
C.F.R. Section 1.2110(b)(l); (iv) the gross revenues of C9 Wireless within the meaning
of the FCC Rules, specifically 47 C.F.R. Section 1.2110(n) for each of the last three
years; (v) the total assets of C9 Wireless within the meaning of the FCC Rules,
specifically 47 C.F.R. Section 1.2110(o); and (vi) the gross revenues as previously
defined in this Section 3.2(b)) of all affiliates, controlling interests, and
affiliates of controlling interests (all as previously defined in this Section 3.2(b))
for each of the last three years;
(c) Schedule 3.2(b) hereto sets forth, as of the Effective Date, any and all
Persons or Entities having either a direct or indirect ownership interest in C9
Wireless;
(d) C9 Wireless has access to sufficient funds (the Financing) to enable it to make
the Capital Contributions required of it under Section 9.1. There are no conditions to the
Financing other than conditions also set forth herein and other conditions customary for
facilities of such type. C9 Wireless has no knowledge that the Financing will not be
available on a timely basis when, as and if required pursuant to the provisions of Section
9.1;
(e) C9 Wireless qualifies as an Entrepreneur and as a Very Small Business under the
FCC Rules;
(f) C9 Wireless is legally, technically, financially and otherwise qualified to
hold PCS licenses; and
(g) After the Effective Date, no Person shall be admitted as a member of C9
Wireless without the consent of GWI.
3.3.
Representations and Warranties of GWI and the MPCS Member.
As
of the Effective Date hereof, each of GWI and the MPCS Member represents and
warrants to C9 Wireless that it is a duly organized corporation, validly existing and in
good standing under the laws of the State of Delaware.
-19-
ARTICLE 4
Covenants
4.1.
Eligible Entrepreneur and Very Small Business.
(a) The Parties acknowledge that they intend for Royal Street to qualify as an Entrepreneur
and a Very Small Business under the FCC Rules, and accordingly agree to cooperate in good faith
with each other and to use reasonable efforts to make all necessary filings and other
communications with the FCC which the Parties believe are reasonably necessary or appropriate to
facilitate the processing and grant of any application for any License (provided that nothing
contained in this Section 4.1 (a) shall (i) require any Party to agree to the amendment,
modification or waiver of any provision of this Agreement, any of the Ancillary Agreements or any
other agreements entered into by any of the Parties in connection with the transactions
contemplated hereby, (ii) require the expenditure of funds by any Party other than as expressly
provided for herein or in the Ancillary Agreements or (iii) impose any incremental substantive
obligations on any Party which are not otherwise expressly provided for in this Agreement or the
Ancillary Agreements).
(b) C9 Wireless hereby covenants and agrees that, prior to the ***, before it or any direct or indirect Affiliate undergoes a Change of Control, acquires
a new interest or investment in, or assumes a new officer, director or key management position
with, any Person that may reasonably be expected to result in C9 Wireless loss or threatened loss
of its status as an Entrepreneur or Very Small Business, once so qualified, it will consult with
GWI concerning the Change of Control, acquisition, investment or position and shall not permit or
make such Change of Control, acquisition, investment or assume such position where GWI reasonably
concludes, and so notifies C9 Wireless in writing within ten (10) days following such initial
consultation (and GWI shall be deemed to have consented to such action absent C9 Wireless receipt
of such written notice within such period), that such action will result in C9 Wireless loss of
its Entrepreneur or Very Small Business status.
(c) Prior to the ***, neither C9 Wireless nor any Person that owns, directly or
indirectly, any ownership interest in C9 Wireless, shall permit any direct or indirect Change of
Control, sale, transfer, assignment, pledge (other than pledges of equity of C9 Wireless as
permitted by Section 5.1 (d), and, subject to Section 5.1 (d), any foreclosures resulting
therefrom), hypothecation, mortgage or other disposal or encumbrance of any beneficial or economic
interest in its Voting Securities without the prior written consent of GWI, which consent may be
withheld by GWI in its sole discretion.
(d) During the term of this Agreement, the business of C9 Wireless shall be limited to
activities related to the wireless telecommunications business in connection with C9 Wireless
investment in Royal Street and, prior to the ***, C9 Wireless shall not undertake any
actions or activities, nor permit any of its investors, shareholders, members or Affiliates to
undertake any actions or activities, which could result in a loss of Royal Streets status as an
Entrepreneur and Very Small Business.
-20-
4.2.
Maintenance of Financing.
C9 Wireless shall (a) use all commercially reasonable efforts to maintain the
availability of the Financing; (b) identify the sources of the Financing to GWI at the
earliest practicable date; (c) provide written evidence of the Financing to GWI, which may
include commitment letters or binding letters of intent, at any time and from time to
time, as reasonably requested by GWI; (d) provide such additional information regarding
the Financing as GWI or its advisors may reasonably request, and (e) not assume any
indebtedness except indebtedness that: (i) would not jeopardize C9 Wireless or Royal
Streets status as an Entrepreneur or a Very Small Business or otherwise adversely affect
the designated entity qualifications of Royal Street pursuant to Section 4.1(d) or (ii) is
not secured by any Liens or interests in property that would be in derogation of MetroPCS
Wireless security interests or would violate the Financing. The Parties acknowledge and
agree that in no event shall any lender to C9 Wireless or other provider of the Financing
be deemed to have or be given any control under this Agreement, any of the Ancillary
Agreements, the constituent documents of C9 Wireless or otherwise to control Royal Street,
C9 Wireless or any of their respective Affiliates.
4.3.
[Intentionally deleted]
4.4.
Successful Bidder.
If Royal Street is a Successful Bidder, as soon as
practicable following the conclusion of Auction No. 58, the Members shall cause Royal
Street to create a schedule, which schedule shall be subject to the approval of the
Initial Members (the Auction Schedule), setting forth (i) each License granted to Royal
Street in Auction No. 58, (ii) the purchase price paid by Royal Street for such License,
and (iii) the amount of each Bidding Credit granted to Royal Street in Auction No. 58 in
connection with such License.
4.5.
Third Party Financing.
If Royal Street requires financing over and
above the amounts available to it under the Credit Agreement, and MetroPCS Wireless is
unwilling or unable to provide such financing on terms reasonably acceptable to Royal
Street, then Royal Street will use reasonable efforts to secure such financing from
unaffiliated third parties on commercially reasonable terms in accordance with Section
4.2 hereof.
4.6.
Competition.
(a) During the term of this Agreement, neither C9 Wireless nor any of its
Affiliates (other than Royal Street), directly or indirectly, shall:
(i) participate in Auction No. 58 other than through Royal Street in
accordance with the terms of this Agreement;
(ii) participate in any other auction for, or otherwise acquire, wireless
spectrum allocated for telecommunications services in the United States; or
(iii) engage in any retail CMRS activity that would be competitive with GWIs or
MetroPCSs products and services or Royal Streets Products and Services in any of the
markets in which any MetroPCS Party is the licensee of a CMRS system, or is a lessee of
PCS spectrum or reseller of PCS.
-21-
(b) The Parties acknowledge that the MetroPCS Parties currently engage in, and will
in the future engage in, activities that are competitive with Royal Street Products and
Services, and agree that nothing in this Agreement or any Ancillary Agreement shall
preclude the MetroPCS Parties from continuing to engage in any such activity without
restriction. The Parties further acknowledge that the MetroPCS Parties from time to time
might obtain FCC licenses through the acquisition of entities that hold FCC licenses or
otherwise, and agree that nothing in this Agreement or any Ancillary Agreement shall
preclude the MetroPCS Parties from continuing to engage in any such acquisitions or
activity outside of Auction No. 58 without any obligation or liability to Royal Street or
to any of its Members.
(c) The Parties further acknowledge and agree that investors in the MetroPCS Parties
may have, or from time to time may acquire, interests in other companies that hold FCC
licenses, or are seeking to acquire FCC licenses, or access to spectrum through auction,
lease, acquisition or otherwise, and that such companies may engage in activities that are
competitive with Royal Street products and services.
(d) Notwithstanding anything to the contrary in this Agreement, the MetroPCS Parties
may enter into a joint venture, alliance or other cooperative relationship with an
Entrepreneur or Very Small Business other than C9 Wireless.
(e) Neither Royal Street nor any Member shall have any right, by virtue of this
Agreement, to share or participate in such other investments or activities of the other
Members described in this Section 4.6 or to the income or proceeds derived therefrom.
Except as otherwise provided herein, no Member shall incur any liability to Royal Street
or to any other Member as a result of engaging in any other business or venture.
4.7.
Cooperation.
The Parties hereby covenant and agree that if the
participation of any of them as a Member of Royal Street or their performance of their
obligations hereunder results in a regulatory limitation on any Members ability to pursue
its business objectives outside Royal Street, including regulatory limitations on the
amount of spectrum in which any Party may have an interest, the Members shall cooperate in
good faith in reasonable respects to resolve any such regulatory limitation in a manner
that is in the best long term interests of Royal Street and the Members (provided that
nothing contained in this section shall (A) require any Party to agree to the amendment,
modification or waiver of any provision of this Agreement, any of the Ancillary Agreements
or any other agreements entered into by any of the Parties in connection with the
transactions contemplated hereby or (B) require the expenditure of funds by any Party
other than as expressly provided for herein or in the Ancillary Agreements).
4.8.
Compliance With Law.
C9 Wireless covenants and agrees that, as the
controlling Member of Royal Street, C9 Wireless will not knowingly allow or cause Royal
Street to materially violate applicable FCC Rules (including FCC Rules pertaining to
status as an Entrepreneur or Very Small Business).
4.9
Maintenance of Records.
C9 Wireless shall maintain its records,
books of account and bank accounts separate and apart from those of the shareholder(s),
principals and Affiliates of C9 Wireless, the Affiliates of the shareholder of C9 Wireless
or any other Person, and shall observe such formalities as are necessary to preserve the
separate identity of C9
-22-
Wireless from that of its shareholders, principals and Affiliates, the
Affiliates of the shareholder(s) of C9 Wireless or any other Person.
ARTICLE 5
Transfer Restrictions
5.1.
Transfers.
(a) Subject to Sections 5.l(b), (c) and (d), each Member agrees that it
shall not Transfer, directly or indirectly, or permit any Transfer of, directly or
indirectly, in any single transaction or series of related transactions, any or all of the
LLC Units that are Beneficially Owned by it until the ***, except (i) with
the written approval of the Initial Members, (ii) pursuant to the Put (if exercisable
prior thereto in accordance with the terms and conditions of Section 5.4), or (iii)
pursuant to the exercise by GWI of its Rights of First Refusal in accordance with the
terms and conditions of Section 5.2. Notwithstanding the foregoing, in no event shall any
Member Transfer, directly or indirectly, or permit any Transfer of, directly or
indirectly, in any single transaction or series of related transactions, less than all of
the LLC Units that are Beneficially Owned by it.
(b) Notwithstanding anything to the contrary in Section 5.1 (a), any Initial Member
may at any time Transfer all, but no less than all, of its LLC Units to one or more of its
Affiliates without the prior written consent of any other Initial Member;
provided,
that (i) contemporaneously with any such Transfer of LLC Units any such
Affiliate becomes a party to a counterpart of this Agreement, (ii) such Transfer will not
result in a termination of Royal Street under Code Section 708(b)(l)(B), (iii) any
required consent or approval from a Governmental Entity has been obtained, if prior
consent or approval is required, or sought, if consent or approval may be obtained after
the fact, (iv) such Affiliate shall remain an Affiliate during the term of this Agreement,
and (v) such Transfer does not adversely affect the qualifications of Royal Street under
the FCC Rules as an Entrepreneur or as a Very Small Business.
(c) Notwithstanding anything to the contrary in Section 5.1 (a), GWI shall be free to
Transfer its LLC Units without the consent of any Member to any Person to which GWI is
assigning or transferring all or substantially all of the FCC authorizations issued to GWI
provided such assignment or transfer has been approved by the FCC and
provided
further,
that (i) contemporaneously with any such Transfer of LLC Units any transferee
of GWIs LLC Units becomes a party to a counterpart of this Agreement, and (ii) any
required consent or approval from a Governmental Entity has been obtained, if prior
consent or approval is required, or sought, if consent or approval may be obtained after
the fact.
(d) C9 Wireless may pledge any or all of its LLC Units to a lender, subject to the
condition that (i) such lender may not in any event foreclose upon its security interest
in such LLC Units (either directly or through a foreclosure on the equity interests in C9
Wireless) at any time prior to the *** if such foreclosure would result in
the loss of any License or a requirement by Royal Street to make any Unjust Enrichment
Payment which would not otherwise have been lost or made, respectively, (ii) lender must
provide C9 Wireless and GWI prior written notice of its intention to foreclose at least
ten (10) days prior to taking any action,
-23-
and (iii) lender must agree to allow C9 Wireless ten (10) days, following receipt of
notice by both C9 Wireless and GWI, to cure any default.
(e) Notwithstanding anything in this Agreement that might be construed to the
contrary, C9 Wireless agrees that it shall not transfer or offer to transfer any portion
of its LLC Units to a non-Member prior to the expiration of the ***
and subject to the GWI rights of first refusal established in Sections 5.2 and 5.3.
5.2.
Right of First Refusal for Transfer of LLC Units.
(a) Subject to Section 5.4(f), in the event that any Member other than a MetroPCS
Party (the Exiting Member) has received a Bona Fide Offer from a third party to, and
proposes to, Transfer its LLC Units to such third party, in accordance with and subject to
the limitations set forth in Section 5.1, then, prior to Transferring such LLC Units (the
Transferred Securities), the Exiting Member shall promptly deliver a written notice (the
Transfer Notice) to Royal Street and the other Members stating that the Exiting Member
proposes to Transfer the Transferred Securities. The Transfer Notice shall (i) specify the
proposed purchase price for, and all other material terms with respect to, the sale of the
Transferred Securities, (ii) identify the proposed purchaser, (iii) specify the date
scheduled for the Transfer (which date shall not be less than sixty (60) days after the
date the Transfer Notice is delivered), and (iv) have attached thereto a copy of such Bona
Fide Offer, and any ancillary agreements or documents, containing all of the material
terms and conditions on which the Transferred Securities are to be sold.
(b) By
written notice (an Election Notice) delivered to Royal Street, the Exiting
Member and the other Members within sixty (60) days after receipt of a Transfer Notice,
GWI shall have the right to purchase all or a portion of the Transferred Securities on
terms and conditions equal to the proposed purchase price of the Transferred Securities;
provided,
that if the Exiting Member proposes to transfer the Transferred
Securities in a transaction that would qualify in whole or in part as a tax-free exchange,
then the Exiting Member and GWI shall use commercially reasonable efforts to structure the
acquisition by GWI of the Transferred Securities to receive similar tax-free treatment;
provided
,
further,
that the inability of an Exiting Member and GWI to so structure
the acquisition by GWI of the Transferred Securities shall not relieve the Exiting Member
from its obligation to Transfer the Transferred Securities to GWI, and GWI shall have no
obligation to pay any resulting Tax;
provided
,
finally,
that if the Transfer of
the Transferred Securities to the proposed purchaser would trigger an Unjust Enrichment
Payment that would not otherwise be triggered if GWI or its designee were the purchaser,
then the purchase price shall be reduced by the amount of the Unjust Enrichment Payment.
An Exiting Member shall be prohibited from delivering a new Transfer Notice relating to
the sale of the Transferred Securities to the purchaser proposed in its initial Transfer
Notice, or any Affiliate of such proposed purchaser, until after the sixty (60) day period
following GWIs receipt of the initial Transfer Notice in the event that GWI does not
elect to purchase the Transferred Securities, or until after the ROFR Termination Date, as
it may be extended in accordance with this Section 5.2, in the event that GWI does elect
to purchase the Transferred Securities.
(c) If GWI shall have elected to purchase the Transferred Securities in accordance
with Section 5.2(b), the Exiting Member and GWI shall use reasonable efforts, including
reasonable efforts to obtain all regulatory approvals, to consummate the closing of the
-24-
purchase of the Transferred Securities as soon as practicable and in any
event within
*** after the date of the Election Notice in the event that no regulatory
approval is required, and within *** after the date of the Election Notice in
the event that any regulatory approval is required. In the event that any regulatory
approval is required, an application for such regulatory approval shall be filed no later
than sixty (60) days following the date of the Election Notice and the closing of the
purchase of the Transferred Securities shall occur no later than ten (10) days following
receipt of all required regulatory approvals by Final Order, and the ROFR Termination
Date shall be either (i) the 10
th
day following receipt of all required
regulatory approvals by Final Order or (ii) the date on which any required regulatory
approval is denied by Final Order, whichever occurs first. In the event that the Parties
have complied with this Section 5.2(c) but any required regulatory approvals are not
obtained within such *** period, the ROFR Termination Date may be extended by
either the Exiting Member or GWI until such approvals are received or denied by a Final
Order, but in no event for a period of more than an additional ***. Any such
closing shall be subject to the condition precedent that any required consent or approval
from any Governmental Entity shall have been obtained.
(d) In the event that GWI does not elect to purchase the Transferred Securities, GWI
may designate another Person to purchase the Transferred Securities, and the Exiting
Member shall sell the Transferred Securities to such designated purchaser,
provided
,
however
, that such designated purchaser shall comply with the terms and conditions set
forth in this Section 5.2 that would otherwise have applied to GWI;
provided
,
further
, that if the Transfer of the Transferred Securities to such designated
purchaser would trigger an Unjust Enrichment Payment that would not otherwise be triggered
if the Exiting Member sold the Transferred Securities to the proposed purchaser, then the
purchase price shall
not
be reduced by the amount of the Unjust Enrichment
Payment.
(e) In the event that GWI does not elect to purchase the Transferred Securities
itself or designate another Person to purchase the Transferred Securities pursuant to
Section 5.2(d) (or fails to consummate such purchase prior to the ROFR Termination Date,
as it may be extended, due to the failure to obtain regulatory approvals for reasons that
are attributable specifically to GWI), the Exiting Member will be free, at any time within
*** after the ROFR Termination Date or the expiration of the time in which the
Election Notice shall be required to be delivered without delivery thereof, as applicable,
to consummate a sale of the Transferred Securities to the proposed purchaser identified in
the Transfer Notice on terms not less favorable to the Exiting Member than those set forth
therein and at the same price;
provided,
that the closing of the transaction
contemplated by such Election Notice may be extended by the Exiting
Member for ***
in the event that any required approval or consent from any Governmental Entity
shall not have been obtained at such time;
provided
,
further
, that such Exiting
Member shall not permit the purchaser to Transfer its right to purchase the Transferred
Securities to a third party. In the event that no Transfer of such Transferred Securities
occurs within the *** deadline (or within the *** deadline if the
*** extension is exercised), then the terms and conditions of this Section 5.2
shall be reinstated and GWI may exercise its rights pursuant to this Section 5.2 as if it
is the first instance of such exercise.
-25-
(f) The rights and obligations of this Section 5.2 shall apply to any and all
Transfers by an Exiting Member or a subsequent purchaser of Transferred Securities.
5.3.
Right of First Refusal in Event of Disposition of Royal Street
Assets.
(a) Until such ***, Royal Street shall not have the right to cause any direct
or indirect sale, Transfer or other disposition of any beneficial or economic interest in
any Royal Street Assets, except in the ordinary course of the operation of the Royal
Street Systems (a Disposition).
(b) After
***, if Royal Street receives a Bona Fide Offer to effect a
Disposition of any Royal Street Assets, and the Management Committee votes to accept the
offer, then, prior to the Disposition of such Royal Street Assets (the Disposition
Assets), Royal Street shall promptly deliver a written notice (the Disposition Notice)
to GWI stating that Royal Street proposes to effect a Disposition of the Disposition
Assets. The Disposition Notice shall (i) specify the proposed purchase price for, and all
other material terms with respect to the sale of the Disposition Assets, (ii) identify the
proposed purchaser, (iii) specify the date scheduled for the transfer of the Disposition
Assets (which date shall not be less than sixty (60) days after the date the Disposition
Notice is delivered) and (iv) have attached thereto a copy of such Bona Fide Offer, which
shall contain all of the material terms and conditions on which the Disposition Assets are
to be sold.
(c) By written notice (a Disposition Election Notice) delivered to Royal Street,
GWI shall have the right to purchase all or a portion of the Disposition Assets on terms
and conditions no less favorable to Royal Street than, and at a price equal to, the
proposed purchase price of such Disposition Assets;
provided
, that if Royal Street
proposes to transfer the Disposition Assets in a transaction that would qualify in whole
or in part as a tax-free exchange, then Royal Street and GWI shall use commercially
reasonable efforts to structure the acquisition by GWI of the Disposition Assets to
receive similar tax-free treatment;
provided
,
further
, that the inability of Royal
Street and GWI to so structure the acquisition by GWI of the Disposition Assets shall not
relieve Royal Street from its obligation to transfer the Disposition Assets to GWI, and
GWI shall have no obligation to pay any resulting Tax;
provided
,
finally
, that if
the Disposition of the Disposition Assets to the proposed purchaser would trigger an
Unjust Enrichment Payment that would not otherwise be triggered if GWI or its designee
were the purchaser, then the purchase price shall be reduced by the amount of the Unjust
Enrichment Payment. Royal Street shall be prohibited from delivering a new Disposition
Notice relating to the sale of the Disposition Assets to the purchaser proposed in its
initial Disposition Notice, or any Affiliate of such proposed purchaser until after the
sixty (60) day period following GWIs receipt of the initial Disposition Notice in the
event that GWI does not elect to purchase the Disposition Assets, or until after the
Disposition ROFR Termination Date, as it may be extended in accordance with this Section
5.3(d), in the event that GWI does elect to purchase the Disposition Assets.
(d) If GWI shall have elected to purchase the Disposition Assets in accordance with
Section 5.3, Royal Street and GWI shall use reasonable efforts, including reasonable
efforts to obtain all regulatory approvals, to consummate the closing of the purchase
-26-
of the Disposition Assets as soon as practicable and in any event within
sixty (60) days after the date of the Disposition Election Notice in the event that no
regulatory approval is required, and within *** after the date of the
Disposition Election Notice in the event that any regulatory approval is required. In
the event that any regulatory approval is required, an application for such
regulatory approval shall be filed no later than sixty (60) days following the date
of the Disposition Election Notice and the closing of the purchase of the Disposition
Assets shall occur no later than ten (10) days following receipt of all required
regulatory approvals by Final Order, and the Disposition ROFR Termination Date
shall be either (i) the 10
th
day following receipt of all required
regulatory approvals by Final Order or (ii) the date on which any required regulatory
approval is denied by Final Order, whichever occurs first. In the event that the
Parties have complied with this Section 5.3(d) but any required regulatory approvals
are not obtained within such *** period, the Disposition ROFR Termination
Date may be extended by either Royal Street or GWI until such approvals are received
or denied by a Final Order, but in no event for a period of more than an additional
***. Any such closing shall be subject to the condition precedent that
any required consent or approval from any Governmental Entity shall have been
obtained.
(e) In the event that GWI does not elect to purchase the Disposition Assets, GWI
may designate another Person to purchase the Disposition Assets, and Royal Street
shall, subject to the receipt of any required approval from a Governmental Entity,
sell the Disposition Assets to such designated purchaser,
provided,
that such
designated purchaser shall comply with the terms and conditions set forth in this
Section 5.3 that would otherwise have applied to GWI.
(f) In the event that GWI does not elect to purchase the Disposition Assets
itself or designate another Person to purchase the Disposition Assets pursuant to
Section 5.3(e) (or fails to consummate such purchase prior to the Disposition ROFR
Termination Date, as it may be extended, due to the failure to obtain regulatory
approvals for reasons that are attributable specifically to GWI), then Royal Street
will be free, at any time within *** after the Disposition ROFR
Termination Date or the expiration of the time a Disposition Election Notice shall be
required to be delivered without delivery thereof, as applicable, to consummate a
sale of the Disposition Assets to the proposed purchaser identified in the
Disposition Notice on terms not less favorable to Royal Street than those set forth
therein and at the same price;
provided,
that the closing of the transaction
contemplated by such Disposition Notice may be extended by Royal Street for *** in the event that any required approval or consent from any Governmental
Entity shall not have been obtained at such time;
provided, further,
that
Royal Street shall not permit the purchaser to Transfer its right to purchase the
Disposition Assets to a third party. In the event that no Transfer of such
Disposition Assets occurs within the *** deadline (or within the
*** deadline if the *** extension is exercised), then the terms and
conditions of this Section 5.3 shall be reinstated and GWI may exercise its rights
pursuant to this Section 5.3 as if it is the first instance of such exercise.
-27-
5.4.
C9 Wireless Put Rights.
(a)
Right to Sell to GWI.
On the terms and subject to the conditions of this
Section 5.4, C9 Wireless shall have the following rights and options:
(i) to sell to GWI, and upon the exercise of such right and option GWI shall
purchase from C9 Wireless, all of C9 Wireless LLC Interest (the Royal Street Put); and
(ii) to cause Royal Street to sell to GWI, and upon the exercise of such right
and option GWI shall purchase from Royal Street, all of Royal Streets membership interest
in a Holding Subsidiary (the Holding Subsidiary Put) (the Royal Street Put and the
Holding Subsidiary Put, collectively referred to as the Put).
(b)
Period for Exercise.
(i) C9 Wireless may exercise the Royal Street Put by delivery of an Exercise
Notice during any of the following periods: (A) during the period beginning on the earlier
of (I)***, subject to
applicable notice provisions, or (II) the date that is *** prior
to the ***
, and ending on the date that is *** prior to the ***
(First Put Exercise Period); (B) during the sixty-day period ending on the date that is
*** prior to the *** (Second Put Exercise Period); or (C)
during the sixty-day period ending on the date that is *** prior to the ***. (Third Put Exercise Period); and
(ii) C9 Wireless may exercise the Holding Subsidiary Put by delivery of an
Exercise Notice during any of the periods described in Section 5.4(b)(i) above, provided
that such exercise periods shall be determined solely with respect to the Licenses held by
such Holding Subsidiary.
(c)
Exercise of Put.
C9 Wireless shall exercise the Put by delivering to GWI
and Royal Street written notice (Exercise Notice) of its exercise of the Put. Any such
written notice shall be irrevocable, except as contemplated by Section 5.4(f). In the
event that (i) C9 Wireless intends to exercise the Put but is prevented under Applicable
Law from delivering the Exercise Notice to GWI for more than sixty (60) days, and (ii) C9
Wireless draws upon the letters of credit described in Section 5.4(h), then C9 Wireless
shall be obligated to exercise the Put and deliver the Exercise Notice as soon as
practicable under Applicable Law.
(d)
Purchase and Sale of Put Interest:
(i) Following the exercise of the Put, C9 Wireless or Royal Street shall
transfer to GWI its entire LLC Interest or the membership interest in the Holding
Subsidiary, as the case may be (the Put Interest), and GWI shall purchase the Put
Interest for the applicable purchase price determined in accordance with this Section 5.4.
The closing of the purchase and sale of the Put Interest shall take place on the later of
the date that is (x) ten (10) days after a Final Order approving the transfer of the Put
Interest from C9 Wireless or Royal Street to GWI, (y) unless the Parties shall have
otherwise expressly elected to permit an earlier closing date, or (z) solely in the event
that such closing otherwise would occur prior to the ***
-28-
*** and would result in Royal Street being required to make an Unjust Enrichment
Payment, the earliest date on which Royal Street would not be required to make any Unjust
Enrichment Payment as a result of the transfer of the Put Interest from C9 Wireless or
Royal Street, as the case may be, to GWI;
provided
that if the date described in
clause (x) occurs prior to the date described in clause (z), GWI may, at its sole option,
elect to close on the later of the date described in clause (x) or the date described in
clause (z) (unless the Parties shall have expressly elected to permit the closing to occur
prior to the ***, in which event GWI may elect to close on the date
described in clause (x)). The date of the closing of the purchase and sale of the Put
Interest shall be hereinafter referred to as the Put Closing Date. At the Put Closing
Date, C9 Wireless or Royal Street, as the case may be, shall deliver to GWI customary
written instruments of transfer and assignment of the Put Interest being sold in form
reasonably satisfactory to GWI. Any Put Interest so transferred and assigned to GWI shall
be transferred and assigned free and clear of all Liens, other than those created
hereunder or by GWI, and with customary terms, conditions, representations and warranties
pertaining to the Licenses and title to the Licenses. Upon the delivery of such
instruments of transfer and assignment, GWI shall pay on the Put Closing Date the
applicable purchase price to C9 Wireless or Royal Street, as the case may be, in
immediately available funds. Notwithstanding anything herein to the contrary, including
without limitation any provision dealing with distributions set forth in Article 10 or
Article 13, in the event such funds are paid to Royal Street as a result of the exercise
of the Holding Subsidiary Put, Royal Street shall promptly distribute such amounts to C9
Wireless. Upon the closing of any such transfer and assignment, the respective LLC
Interests of C9 Wireless and GWI shall be revised, if necessary, to reflect such transfer
and assignment to GWI.
(ii) C9 Wireless and GWI shall use reasonable efforts, including
reasonable efforts to obtain all required regulatory approvals, to consummate the closing
of the purchase of the Put Interest as soon as practicable and in any event within
thirty (30) days after the date of the Exercise Notice in the event that no regulatory approval
is required, and within *** after the date of the Exercise Notice in the event
that any regulatory approval is required, in each case subject to the timing limitations
of Section 5.4(d)(i) above and to avoid taking actions, or failing to take actions that
would materially adversely affect the value of the Licenses. In the event that any
regulatory approval is required, an application for such regulatory approval shall be
filed as soon as practicable, and in any event no later than sixty (60) days following the
date of the Exercise Notice and the closing of the purchase of the Put Interest shall
occur no later than ten (10) days following receipt of all required regulatory approvals,
in each case subject to the timing limitations of Section 5.4(d)(i) above. In the event
that any required regulatory approval is not obtained within such *** period,
the closing date may be extended by either C9 Wireless or GWI until such approvals are
received or denied by a Final Order, subject to Section 5.4(f). Any such closing shall be
subject to the condition precedent that any required consent or approval from any
Governmental Entity shall have been obtained.
(e)
Purchase Price.
The purchase price for the Put Interest shall be
calculated as follows:
(i) If the date of the Exercise Notice is a date falling in the First Put
Exercise Period and the Put Closing Date occurs on or after the ***, the
-29-
purchase
price for the Put Interest shall be ***. If the date of the Exercise Notice is a
date falling in the Second Put Exercise Period, the purchase price for the Put Interest
shall be ***. If the date of the Exercise Notice is a date falling in the Third Put Exercise
Period, the purchase price for the Put Interest shall be ***. In each case, the purchase price shall be
***.
(ii) If the date of the Exercise Notice is a date falling
in the
First Put Exercise Period and the Put Closing Date occurs prior to
the ***,
the purchase price for the Put Interest shall be the amount of ***;
provided,
that if the Put Closing Date is a date falling on or
before the date that is *** after the Effective Date, the purchase price
for the Put Interest shall be calculated ***, and,
provided further,
that if the transaction arising out of the
exercise of the Put gives rise to an obligation to make an Unjust Enrichment Payment to
the FCC pursuant to Section 1.2111, of the FCC Rules (or any similar rule) then the
purchase price for the Put Interest shall be reduced by an amount equal to the Unjust
Enrichment Payment.
(iii) For purposes of subsections (i) and (ii) above, if
the Put
Interest is a membership interest in a Holding Subsidiary, the Purchase Price shall be
calculated by taking into account only that portion of C9 Wireless Capital Contribution
to Royal Street that is properly allocated to such Holding Subsidiary based on the value
of such Holding Subsidiary in proportion to the aggregate value of all the Holding
Subsidiaries.
(iv) At GWIs sole option, if the common stock of
*** is publicly traded on either the NASDAQ National Market System or the New
York Stock Exchange on the Put Closing Date, GWI may pay all or a portion of the purchase
price for the Put Interest in common stock of *** that is freely
transferable under the Securities Act and all applicable state securities laws. For
purposes of determining the number of shares of common stock required to be delivered on
the Put Closing Date, the value of each share of common stock to be delivered shall be the
lesser of (A)***
-30-
***;
provided
,
however
, that GWI may not pay any portion of the purchase
price with ***
common stock to the extent that the common stock to be delivered exceeds 2%
of the total *** common stock held by non-affiliates that is freely
transferable under the Securities Act and all applicable state securities laws as of the
Put Closing Date.
(f) If any of the events described in Sections 13.2(a)(i), 13.2(a)(ii), 13.2(a)(iii)
or 13.2(a)(iv) occur, or if any of the events described in Section 12.3(b) occur,
then
the
provisions (including any pricing provisions) of the relevant subsections of Section 12.3,
and not the provisions of Section 5.4, shall apply to any subsequent purchase by GWI of C9
Wireless LLC Interest.
(g) With respect to the exercise of the Put Interest, the parties shall use their
best efforts to structure the purchase and sale of the Put Interest so as to minimize the
taxes to be paid by C9 Wireless or Royal Street, as the case may be.
(h)
Letter of Credit Agreement.
*** to secure GWIs obligation to purchase the Put Interest upon C9 Wireless
exercise of the Put, GWI hereby agrees to execute a Letter of Credit Agreement in
substantially the form attached hereto as
Exhibit A
, pursuant to which a MetroPCS
Party shall be required to provide certain letters of credit. C9 Wireless shall provide
five (5) days prior written notice to GWI of its intent, if any, to draw on any such
letters of credit. ***
5.5. [Intentionally deleted].
5.6.
Allocation Between Transferor and Transferee.
If a Transfer of an
interest in Royal Street occurs during any Fiscal Year, Profits, Losses, each item thereof
and all other items attributable to such interest for such Fiscal Year shall be divided
and allocated between the transferor and the transferee by taking into account their
varying interests during the Fiscal Year in accordance with Code Section 706(d), using any
conventions permitted by law and selected by the Management Committee.
ARTICLE
6
Management of Royal Street
6.1.
Management of Royal Street.
(a) It is the intention of the Parties for this Agreement to accord C9 Wireless
control of Royal Street as provided in Sections 1.2110 and 24.720 of the FCC Rules. If any
provision of this Agreement is deemed by the FCC to be inconsistent with this intention,
the Parties shall cooperate in good faith in all reasonable respects to reform this
Agreement in a manner that is consistent with the Parties intention (provided that
nothing contained in this paragraph shall require any Party to agree to the amendment,
modification or waiver of any other article of this Agreement or of any of the provisions
of the Ancillary Agreements or any other
-31-
agreement entered into by any of the Parties in connection with the
transactions contemplated hereby, or shall require any Party to agree to any
amendment, modification or waiver of any provision of this Agreement other than
with respect to matters directly relating to the governance of Royal Street as
currently contemplated by this Agreement).
(b) The Members hereby establish a Management Committee (the
Management Committee) to be composed of such number of individuals as the
Members shall from time to time agree. The Management Committee shall consist
initially of five (5) individuals (each a Manager), who shall be designated
as provided in Sections 6.1(c) and 6.1(d). The Members, in such capacity, shall
have no part in the management of Royal Street notwithstanding the last
sentence of Section 18-402 of the Act, and shall have no authority or right to
act on behalf of or bind Royal Street in connection with any matter, except as
expressly set forth in the Act, unless duly authorized by the Management
Committee pursuant to this Agreement and to the extent permitted by FCC Rules.
The Management Committee shall elect from among its members, a Chairman of the
Management Committee (the Chairman). Notwithstanding the foregoing, no
officer, director, general partner or employee of any of the MetroPCS Parties
shall be appointed as a C9 Wireless Manager (as defined in Section 6.1(c)
below).
(c) Initially, C9 Wireless shall appoint three (3) individuals to serve as
Managers (the C9 Wireless Managers) and GWI shall appoint two (2) individuals
to serve as Managers (the GWI Managers);
provided
,
however
, that no
Member shall appoint any individual that would result in Royal Street not
qualifying as an Entrepreneur or Very Small Business. C9 Wireless also shall
appoint the Chairman of the Management Committee from among the C9 Wireless
Managers. The parties acknowledge and agree that C9 Wireless initially appoints
Robert Gerard as one of the C9 Wireless Managers and designates Mr. Gerard as
the initial Chairman. Pending the appointment by C9 Wireless of the two (2)
remaining C9 Wireless Managers, or in the event of a future vacancy with
respect to a C9 Wireless Manager position, the Chairman shall be entitled to
vote on behalf of such vacant C9 Wireless Manager or Managers so that the C9
Wireless Manager or Managers shall at all times maintain majority voting rights
of the Management Committee, with the further understanding that C9 Wireless
shall use its best efforts to fill any such vacancy within ninety (90) days. If
the authorized number of Managers on the Management Committee is changed for
any reason, C9 Wireless shall be entitled to appoint, at a minimum, a majority
of the Managers regardless of the number of Managers comprising the Management
Committee at any given tune and GWI shall be entitled to appoint the remainder
of such Managers.
(d) Subject to Section 6.1 (b)
,
each of C9 Wireless and GWI
shall have complete discretion with respect to the designation and replacement
of its representatives to the Management Committee, including with respect to
the filling of any vacancies. If any Member decides to change any of its
representatives, such Member shall provide written notice of such change to
Royal Street and the other Members.
(e) The Management Committee and its designees shall have the power on
behalf and in the name of Royal Street to carry out any and all of the objects
and purposes of Royal Street contemplated by Section 2.5 and to perform or
authorize all acts which they may deem necessary or advisable in connection
therewith. Subject to Section 6.1(g), all
-32-
determinations, decisions and actions made or taken by the Management Committee in
accordance with this Agreement shall be passed by a simple majority vote of the Management
Committee.
(f) Without limiting the foregoing provisions of this Section 6.1, the
Management Committee and its designees shall have the following powers:
(i) to execute and deliver or to authorize the execution and delivery of real
and personal property (whether leased or owned), Contracts, deeds, licenses, instruments
of transfer and other documents in the ordinary course of business on behalf of Royal
Street;
(ii) to employ, retain, consult with and dismiss such personnel as may be
required;
(iii) to establish and enforce limits of authority and internal controls with
respect to all personnel and functions;
(iv) to engage attorneys, consultants, accountants and other agents,
professionals and representatives of and for Royal Street;
(v) to develop or cause to be developed accounting procedures for the
maintenance of Royal Streets books of account;
(vi) to make all Tax elections (except elections under Code Sections 704(c) and
754) in a manner which, unless the Initial Members otherwise agree, will maximize or
accelerate Tax deductions or minimize or defer taxable income;
(vii) to make the selection of the type of technology used in the Business or
changes to such technology;
(viii) to make pricing decisions with respect to products and services offered
pursuant to the Business;
(ix) to change the Fiscal Year of Royal Street;
(x) to employ, discharge or replace any manager for any or all of the Royal
Street Systems;
(xi) to determine the trademarks under which Royal Street will market its
services; and
(xii) to do all such other acts as shall be specifically authorized in this
Agreement or by the Initial Members unanimously in writing from time to time.
(g) Notwithstanding the foregoing, but subject to the other express provisions of
this Agreement and the transactions contemplated hereby (including those provisions
relating to the transfer of LLC Interests and assets of Royal Street in Sections 5.2, 5.3,
5.4 and 12.3, which shall not require such consent of the GWI Managers), no action shall
be taken with respect
-33-
to any of
the matters enumerated below without the approval of *** of the members of
the Management Committee:
(i) The acquisition by Royal Street of any broadband radio spectrum license that is
neither in an MTA in which Royal Street holds a License nor in an MTA adjacent to an MTA in which
Royal Street holds a License;
(ii) Approval of annual financial statements;
(iii) Changes in the compensation for Royal Street senior management,
including the adoption of any equity compensation plan or scheme, except for
routine cost-of-living adjustments in the ordinary course of business;
(iv) So long as no MetroPCS Party is in default under the Credit
Agreement, any expenditure, or the incurrence of indebtedness in any single
transaction or series of related transactions, in an amount in excess of
*** of the aggregate Annual Budget unless such item is included in
an approved Annual Budget, or a deviation of more than ***
from any line item in an Annual Budget;
(v) The direct or indirect sale, lease, exchange, transfer, disposal or
other disposition of any beneficial or economic interest in any (A) Material
Spectrum License, or (B) any Royal Street Asset or Business (except
transfers to a Holding Subsidiary and transfers made pursuant to the Put) in
any single transaction or series of related transactions with a Fair Market
Value in excess of ***;
(vi) Any material amendments to the organizational documents of Royal
Street, any change in the size of the Management Committee, or any
fundamental change in Royal Streets Business or its corporate or capital
structure, including a merger, consolidation or dissolution, or conversion
to a corporation, excluding those amendments or other changes that do not
materially adversely affect MetroPCS;
(vii) Any transaction not in the ordinary course of business, except as otherwise expressly
provided herein;
(viii) Any deviation of more than *** from the aggregate Annual Budget
approved by the Management Committee or any deviation of more than *** from any line
item in such Annual Budget;
(ix) The declaration and amount of any distributions other than those described in
Section 10.2(d);
-34-
(x) Subject to Section 8.1, the admission of any Additional Members, the
redemption or purchase of any Membership Interests, or the issuance of any new or
additional Membership Interests or any option, warrant or other debt or equity interest
convertible into or evidencing the right to acquire (whether or not for additional
consideration) any Membership Interest in Royal Street, except as contemplated by Sections
5.2 and 5.4(f); and
(xi) The voluntary initiation or continuation by Royal Street of
bankruptcy or Liquidation proceedings or the appointment of a
liquidating trustee in the event of the Liquidation of Royal Street.
6.2.
Place of Management Committee Meetings.
Meetings of the Management
Committee (each, a Management Committee Meeting) shall be held at the principal office
of Royal Street, or at such other place as the Managers shall mutually agree.
6.3.
Meetings.
A Management Committee Meeting may be called by any Manager
for any matter which is appropriate for consideration thereat. Management Committee
Meetings shall be held from time to time, but no fewer than once in each calendar year.
Meetings shall be chaired by the Chairman of Royal Street, and the Secretary of the
Management Committee Meeting shall be appointed by the CEO of Royal Street.
6.4.
Telephonic Meetings.
Management Committee Meetings may be held through
the use of conference telephone or similar communications equipment so long as all Persons
participating in such Management Committee Meetings can hear one another at the time of
such Management Committee Meeting. Participation in a Management Committee Meeting via
conference telephone or similar communications equipment in accordance with the preceding
sentence constitutes presence in person at the Management Committee Meeting.
6.5.
Notice of Meetings.
(a) Written notice of a Management Committee Meeting shall state the place, date and
hour of such Management Committee Meeting and the general nature of the business to be
transacted. Notice shall be given in the manner prescribed in Section 16.4 not fewer than
ten (10) days before the date thereof. Such notice shall specify the date, time and place
of such meeting and shall set forth an agenda of items to be discussed or acted upon at
such meeting. Any substantive item discussed at such meeting that was not specifically set
forth as an agenda item as part of the notice in sufficient detail to provide reasonable
notice, shall not be acted upon unless the Managers unanimously agree to act.
(b) Notwithstanding Section 6.5(a), Royal Street shall convene a special Meeting of
Management Committee within forty-eight (48) hours of its receipt of a notice, either
oral, written or electronic, from GWI requesting a special Meeting of the Management
Committee pursuant to Section 6.3(a) of the Services Agreement.
6.6.
Waivers.
Notice of a Management Committee Meeting need not be given
to any Manager who signs a waiver of notice, in person or by proxy, whether before or
after the Management Committee Meeting. The attendance of any Manager at a Management
Committee Meeting, in person or by proxy, without protesting prior to the conclusion of
such Management Committee Meeting the lack of notice of such Management Committee Meeting,
shall constitute
-35-
a waiver of notice by such Manager;
provided,
that such Manager has been given an adequate
opportunity at the meeting to protest such lack of notice.
6.7.
Quorum.
The attendance in person or by proxy of at least a majority of the C9
Wireless Managers and a majority (or one, if there are only two GWI Managers) of the GWI Managers
shall constitute a quorum at a Management Committee Meeting for the transaction of any business;
provided,
that notice in accordance with the terms of this Agreement shall have been duly
provided. No action of the Management Committee shall be valid in the absence of a quorum, except
as provided by Section 6.8 hereof.
6.8.
Proxies.
Every Manager entitled to vote at a Management Committee Meeting may
authorize another Person or other Persons to act for it by proxy. Every proxy must be signed by the
Manager or his attorney-in-fact. Every proxy shall be revocable in writing at the pleasure of the
Manager executing it.
6.9.
Voting Power.
Subject to Section 6.1 (c), each Manager shall have one (1) vote on
all matters to be voted on by the Management Committee.
6.10.
Written Consent.
Any action required or permitted to be taken at any Management
Committee Meeting may be taken without a meeting if all Managers then in office consent thereto in
writing. Any such written consents shall be filed with the books and records of Royal Street and
made part of the minutes of the proceedings.
6.11.
Compensation.
The Managers shall ***.
6.12.
Officers.
(a) Royal Street shall have a Chief Executive Officer (CEO) and such other officers as the
Management Committee shall deem appropriate to carry out the business of Royal Street. The initial
CEO shall be Robert Gerard.
(b) Election of a nominee to the applicable office shall require approval of a majority of the
members of the Management Committee. Any officer may be removed at any time, with or without cause,
by a majority vote of the Management Committee. The Management Committee may appoint one person to
serve in multiple capacities as an Officer and the compensation paid to such person shall be the
compensation of the highest paid office held by such Officer.
(c) The
initial CEO shall receive an annual salary of *** in base annual compensation to
be paid quarterly. In addition, all officers shall be entitled to reimbursement of out-of-pocket
expenses incurred in connection with the performance of their duties
as officers, ***.
(d) [Intentionally deleted].
-36-
(e) No Officer shall take or permit to be taken any action on behalf of or in the
name of Royal Street (whether for Royal Street itself or where Royal Street is acting in
its capacity as a direct or indirect member, partner or owner of any Subsidiary), or enter
into any commitment or obligation binding upon Royal Street, except for (i) actions
authorized in accordance with the terms and conditions of this Agreement and (ii) actions
authorized by the Management Committee in the manner set forth herein. An Officer may
delegate in writing the performance of the Officers duties to the Royal Street employees
that the Officer supervises.
(f) The Initial Members hereby authorize (i) Royal Street to enter into each of the
Ancillary Agreements and any other agreements reasonably necessary to consummate the
transactions contemplated by this Agreement and consistent with the terms hereof and (ii)
Robert Gerard, in his capacity as the initial Chairman, to execute and deliver such
agreements on behalf of Royal Street.
6.13.
Liability.
Except as otherwise provided by the Act, the debts,
obligations and liabilities of Royal Street, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of Royal Street, and no
Manager or Member shall be obligated personally for any such debt, obligation or liability
of Royal Street solely by reason of being a Manager or Member.
6.14.
Indemnification with Respect to Managers and Officers.
(a) No Manager or Officer or any employee of Royal Street (each, an Indemnified
Party, collectively, the Indemnified Parties) shall be liable, responsible or
accountable in damages or otherwise to Royal Street, to any third party or to any Member
for (i) any act performed or omission within the scope of the authority conferred on the
Indemnified Party by this Agreement or otherwise by the Management Committee except for
the bad faith, gross negligence, fraud or willful misconduct (including any willful
violation of the terms of this Agreement) of any Indemnified Party, (ii) the Indemnified
Partys performance of, or failure to perform, any act on the reasonable reliance on
advice of legal counsel to Royal Street or (iii) the negligence, dishonesty or bad faith
of any agent, consultant or broker of Royal Street selected, engaged or retained in good
faith and with reasonable prudence. In any threatened, pending or completed action, suit
or proceeding, each Indemnified Party shall, to the fullest extent permitted by law, be
fully protected and indemnified and held harmless by Royal Street against any and all
Damages arising out of such action, suit or proceeding by virtue of his or her status as
an Indemnified Party or with respect to any action or omission taken or suffered in good
faith, other than liabilities and losses resulting from the gross negligence, fraud,
breach of fiduciary duty or willful misconduct (including any willful violation of the
terms of this Agreement) of any Indemnified Party. The indemnification provided by this
Section 6.14 shall be recoverable only out of the assets of Royal Street, and no Member
shall have any personal liability on account thereof.
(b) To the extent that, at law or in equity, an Indemnified Party has duties
(including fiduciary duties) and liabilities relating thereto to Royal Street, any Member
or to any other Indemnified Party, an Indemnified Party acting under this Agreement shall
not be liable to Royal Street or to any Member or to any other Indemnified Party for its
good faith reliance on the provisions of this Agreement. The provisions of this Agreement,
to the extent that they
-37-
restrict the duties and liabilities of an Indemnified Party otherwise existing at law or in
equity, are agreed by the Parties to replace such other duties and liabilities of such
Indemnified Party.
6.15.
Insurance.
Royal Street shall maintain in full force and effect (a)
an adequate errors and omissions insurance policy, (b) such other insurance coverage, on
all properties of a character usually insured by organizations engaged in the same or
similar business against loss or damage of a kind customarily insured against by such
organizations, (c) adequate public liability insurance against tort claims which may be
asserted against Royal Street, and (d) an adequate director and officer insurance policy.
ARTICLE 7
Members
7.1.
Powers of Members.
Members shall have only such rights and powers as are
granted to Members pursuant to the express terms of this Agreement and the Act. Except as
otherwise expressly and specifically provided in this Agreement, no Member, in such
capacity, shall have any authority to bind, to act for, to sign for or to assume any
obligation or responsibility on behalf of, any other Member or Royal Street.
7.2.
Partition.
Each Member waives any and all rights that it may have to
maintain an action for partition of Royal Streets property.
7.3.
Place of Members Meetings.
Meetings of Members (each, a Members
Meeting) shall be held at the principal office of Royal Street, or at such other
place as the Members shall mutually agree.
7.4.
Meetings.
A Members Meeting may be called by any Member for any matter
which is appropriate for consideration thereat. Members Meetings shall be held from time
to time, but no fewer than once in each calendar year. Meetings shall be chaired by the
Chairman of Royal Street, and the Secretary of the Members Meeting shall be appointed by
the CEO of Royal Street.
7.5.
Telephonic Meetings.
Members Meetings may be held through the use of
conference telephone or similar communications equipment so long as all Persons
participating in such Members Meetings can hear one another at the time of such Members
Meeting. Participation in a Members Meeting via conference telephone or similar
communications equipment in accordance with the preceding sentence constitutes presence in
person at the Members Meeting.
7.6.
Notice of Meetings.
Written notice of a Members Meeting shall state the
place, date and hour of such Members Meeting and the general nature of the business to be
transacted. Notice shall be given in the manner prescribed in Section 16.4 not fewer than
ten (10) days nor more than sixty (60) days before the date thereof. Such notice shall
specify the date, time and place of such meeting and shall set forth an agenda of items to
be discussed or acted upon at such meeting.
-38-
7.7.
Waivers.
Notice of a Members Meeting need not be given to any Member who
signs a waiver of notice, in person or by proxy, whether before or after the Members
Meeting. The attendance of any Member at a Members Meeting, in person or by proxy, without
protesting prior to the conclusion of such Members Meeting the lack of notice of such
Members Meeting, shall constitute a waiver of notice by such Member;
provided,
that such Member has been given an adequate opportunity at the meeting to protest such lack
of notice.
7.8.
Quorum.
The attendance in person or by proxy of at least one authorized
representative of each Initial Member shall constitute a quorum at a Members Meeting for
the transaction of any business;
provided,
that notice in accordance with the terms
of this Agreement shall have been duly provided. If no quorum is present, holders of a
majority of LLC Units present may adjourn the Members Meeting and if a quorum is present,
holders of at least ninety percent of the LLC Units present may adjourn the Members
Meeting. An adjournment may include notice of the date, hour and place that the Members
shall reconvene. Notice of the adjournment (with the new date, time and place) shall be
given to all Members who were absent at the time of the adjournment and, unless such date,
hour and place are announced at the Members Meeting, to the other Members.
7.9.
Proxies.
Every Member entitled to vote at a Members Meeting may
authorize another Person or other Persons to act for it by proxy. Every proxy must be
signed by the Member or his attorney-in-fact. Every proxy shall be revocable in writing at
the pleasure of the Member executing it.
7.10.
Written Consent.
Any action required or permitted to be taken at any
Members Meeting may be taken without a meeting if all Members consent thereto in writing.
Any such written consents shall be filed with the minutes of the proceedings.
7.11.
Designation of Tax Matters Member; Tax Matters.
(a) C9 Wireless shall act as the tax matters partner of Royal Street, as
provided in the regulations pursuant to Code Section 6231 (the Tax Matters Member). Each
Member hereby approves of such designation and agrees to execute, certify, acknowledge,
deliver, swear to, file and record at the appropriate public offices such documents as may
be deemed necessary or appropriate to evidence such approval. To the extent and in the
manner provided by applicable Code sections and Regulations thereunder, the Tax Matters
Member (a) shall furnish the name, address, profits interest and taxpayer identification
number of each Member to the IRS and (b) shall inform each Member of administrative or
judicial proceedings for the adjustment of Royal Street items required to be taken into
account by a Member for income tax purposes. The Tax Matters Member shall not enter into
an agreement with the IRS or any other taxing authority to extend the limitation period
for assessment of any federal, state or local income, franchise or unincorporated business
tax of any Member or owner thereof nor settle with the IRS or any other taxing authority
to disallow deductions or increase income from Royal Street with respect to any Member,
unless all of the Members shall have agreed thereto. Each Member hereby reserves all
rights under Applicable Law, including the right to retain independent counsel of its
choice at its expense (which counsel shall receive the full cooperation of Management
Committee and shall be entitled to prior review of all submissions by Royal Street in
respect of any dispute with the relevant taxing authority).
-39-
(b) On or before May 1 of each year, Royal Street shall provide to each Member (i) a draft IRS
Schedule K-l and Form 1065, (ii) information required by such Member to allocate and apportion
income for state income tax purposes and (iii) such other information concerning Royal Street
reasonably requested by any Member. Each Member shall have the right to object to any amount or
information reported on such draft Schedule or Form on or before May 15, and the Management
Committee shall promptly take any action deemed appropriate in light of such objection.
(c) The Tax Matters Member shall not be entitled to make any material elections,
including an election under Code Section 754, unless all Members shall have consented
thereto.
ARTICLE 8
Additional Members
8.1.
Admission.
(a) The Initial Members, by unanimous vote, shall have the right to admit any additional
members (each, an Additional Member and collectively, the Additional Members) at any time, to
issue LLC Units to such Additional Members, and to determine what, if any, amendments shall be made
to this Agreement in connection with the admission of any such Additional Member. In connection
with any transfer of LLC Interests otherwise permitted by this Agreement (including transfers as
contemplated by Sections 5.2 and 5.4), the transferee shall be admitted as a Member of the LLC
without the consent of any Member.
(b) Each Additional Member shall only be admitted to Royal Street if the Additional
Member executes a counterpart of this Agreement and such other documents or related
agreements as the Initial Members may require.
8.2.
Acceptance of Prior Acts.
Any Person who becomes an Additional Member, by
becoming an Additional Member, accepts, ratifies and agrees to be bound by all actions duly taken
pursuant to the terms and provisions of this Agreement by Royal Street prior to the date it became
an Additional Member and, without limiting the generality of the foregoing, specifically ratifies
and approves all agreements and other instruments as may have been executed and delivered on behalf
of Royal Street prior to said date and which are in force and effect on said date.
ARTICLE 9
Capital Contributions and
Capital Accounts
9.1.
Capital Contributions.
(a) As their initial Capital Contributions, the Members shall contribute cash to Royal
Street in the following amounts:
-40-
(i) On the effective date, (A) C9 Wireless shall make a Capital
Contribution in the amount of ***, (B) GWI shall make a Capital Contribution in the
amount of ***; and (C) the MPCS Member shall make a Capital Contribution in the amount of
***; and
(ii) On December 15, 2004, (A) C9 Wireless shall make a Capital Contribution to
Royal Street in the amount of ***, (B) GWI shall make a Capital Contribution to
Royal Street in the amount of *** and (C) the MPCS Member shall make a Capital
Contribution to Royal Street in the amount of ***. Notwithstanding anything in this
Agreement to the contrary, C9 Wireless shall not be required to make any Capital
Contributions pursuant to this Section 9.1(a)(ii) at any time that GWI is in default under
the Letter of Credit Agreement.
(b) At such times that payments are due from Royal Street to the FCC for the
submission of an application, upfront payment, a down payment, and/or the final payment of
the purchase price of at least one License, and subject to the condition that all of the
Ancillary Agreements and any other documents reasonably necessary to consummate the
transactions contemplated by the Agreement and consistent with the terms hereof shall have
been duly executed and delivered by the parties thereto, Royal Street may borrow, pursuant
to, and subject to any limitations contained within, the Credit Agreement, all amounts in
excess of the amounts contributed pursuant to Section 9.1 (a) necessary to permit Royal
Street to timely make such appropriate payments to the FCC. In the event that Royal Street
receives a Refund, within three (3) Business Days after the date on which Royal Street
receives such Refund, Royal Street shall use the entire amount of such Refund to prepay
principal amounts of loans, if any, previously made to Royal Street under the Credit
Agreement.
(c) In the event that Royal Street is a Successful Bidder, then, upon the latest
License Grant Date of all Licenses, C9 Wireless shall contribute cash
of ***. The proceeds of
the additional Capital Contribution made pursuant to this Section 9.1(c) shall be used by
Royal Street for working capital and for such other general business purposes as the
Management Committee shall direct in accordance with the terms of this Agreement.
Notwithstanding anything in this Agreement to the contrary, C9 Wireless shall not be
required to make any Capital Contributions pursuant to this Section 9.1(c) at any time
that GWI is in default under the Letter of Credit Agreement.
(d) At such time as C9 Wireless makes an additional Capital Contribution, if any,
pursuant to Section 9.1(c) above, GWI and the MPCS Member shall contribute cash to Royal
Street in an amount sufficient to cause the aggregate amount of Capital Contributions made
by GWI and the MPCS Member pursuant to Section 9.1 (a) and this Section 9.1(d) to equal
-41-
75% and 10% respectively of the aggregate amount of Capital Contributions made by all the
Members pursuant to Sections 9.1(a), 9.1(c) and 9.1(d).
(e) [Intentionally deleted]
(f) Except for the Capital Contributions described in Sections 9.1 (a), (c) and (d)
hereof, the Parties shall have no obligation to make additional Capital Contributions to
Royal Street.
9.2.
Status of Capital Contributions.
Except as provided in this Agreement,
no Member shall be entitled to the return of its Capital Contributions. No return of a
Members Capital Contributions shall be made hereunder if such distribution would violate
Applicable Law. Under circumstances requiring a return of any Capital Contribution, no
Member shall have the right to demand or receive property other than cash, except as may
be specifically provided in this Agreement.
9.3.
Capital Accounts.
An individual Capital Account shall be
established and maintained for each Member.
9.4.
No Withdrawals.
No Member shall be entitled to withdraw any part of its
Capital Account or Capital Contributions or to receive any distributions from Royal Street
except as expressly provided in this Agreement.
9.5.
LLC Units Upon Execution of the Agreement and at the Funding Date.
Upon execution, delivery and performance of this Agreement in accordance with the
provisions set forth herein, Royal Street shall issue the following LLC Units to the
Initial Members and the Percentage Interest held by each Member shall be as follows:
|
|
|
|
|
|
|
|
|
|
|
LLC Units
|
|
Percentage Interest
|
C9 Wireless
|
|
|
15
|
|
|
|
15.00
|
%
|
MPCS Member
|
|
|
10
|
|
|
|
10.00
|
%
|
GWI
|
|
|
75
|
|
|
|
75.00
|
%
|
|
|
|
|
|
|
|
|
|
Total:
|
|
|
100
|
|
|
|
100.00
|
%
|
In the event that the aggregate Capital Contributions of the Parties are made in relative
proportions other than as specified in this Section 9.5, the number of LLC Units held by
each of them in Royal Street shall not be adjusted to reflect their actual relative
Capital Contributions.
9.6.
Other Rights.
Holders of LLC Units shall have such other rights as are
specified herein.
9.7.
Return of Capital.
Subject to Section 9.8 hereof, if the Auction
Process is concluded and the Parties have made Capital Contributions in excess of the
amount required to purchase the Licenses on which Royal Street was the Successful Bidder,
then Royal Street shall return the excess funds to the Parties in accordance with their
respective Percentage Interests.
-42-
9.8.
Redemption.
In the event that (i) Royal Street is not the Successful
Bidder for any License or (ii) Royal Street is the Successful Bidder for Licenses and the
FCC does not grant to Royal Street at least one License for which Royal Street was a
Successful Bidder as a result of the disposition of any appeals of FCC actions or any
judicial decisions, Royal Street shall redeem all (but not less than all) of the LLC Units
of C9 Wireless for an amount equal to ***. Upon such redemption, the Percentage Interests of the remaining Members shall be
increased by their proportionate shares of C9 Wireless Percentage Interest.
ARTICLE 10
Allocations and Distributions
10.1.
Allocation Rules.
(a)
Profits.
After giving effect to the special allocations set forth in
Section 10.1(c), Profits for any Fiscal Year shall be allocated in the following order of
priority:
(i) First, to the Members, in proportion to and to the extent of the excess, if
any, of (A) the cumulative Losses allocated to each Member pursuant to Section
10.1(b)(i)(B) for the current Fiscal Year and all prior Fiscal Years,
over
(B) the
cumulative Profits allocated to such Member pursuant to this Section 10.1(a)(i) for all
prior Fiscal Years;
(ii) Second, to the Members in proportion to and to the extent of the excess, if
any, of (A) the aggregate distributions made to such Member pursuant to Section
10.2(a)(ii) hereof for the current Fiscal Year and all prior Fiscal Years,
over
(B) the cumulative Profits allocated to such Member pursuant to this Section 10.1(a)(ii)
for all prior Fiscal Years; and
(iii) The balance, if any, to the Members in accordance with their
Percentage Interests.
(b)
Losses.
After giving effect to the special allocations set forth in
Section 10.1(c), Losses for any Fiscal Year shall be allocated as set forth in Section
10.1(b)(i), subject to the limitation in Section 10.1(b)(ii).
(i) Losses for any Fiscal Year shall be allocated in the following order of
priority:
(A) First, to the Members in proportion to and to the extent
of
the excess, if any, of (1) the cumulative Profits allocated to each Member pursuant to
Section 10.1(a)(iii) for the current Fiscal Year and all prior Fiscal Years,
over
(2) the cumulative Losses allocated to such Member pursuant to this Section 10.1 (b)(i)(A)
for all prior Fiscal Years;
(B) Second, to the Members in proportion to and to the extent
of the excess, if any, of (1) the cumulative Profits allocated to each Member pursuant to
Section 10.1(a)(ii) for the current Fiscal Year and all prior Fiscal Years,
over
(2) the cumulative Losses allocated to such Member pursuant to this Section 10.1(b)(i)(B)
for all prior Fiscal Years; and
-43-
(C) The balance, if any, to the Members in accordance with their Percentage
Interests.
(ii) The Losses allocated pursuant to Section 10.1(b)(i) shall
not
exceed the maximum amount of Losses that can be so allocated without causing any Member to
have an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some,
but not all, of the Members would have Adjusted Capital Account Deficits as a consequence
of an allocation of Losses pursuant to Section 10.1(b)(i) but for this Section
10.1(b)(ii), the limitation set forth in this Section 10.1(b)(ii) shall be applied on a
Member by Member basis so as to allocate the maximum permissible Losses to each Member
under Regulation Section 1 .704-1(b)(2)(ii)(d).
(c)
Special Allocations.
The following special allocations shall be
made in the following order:
(i)
Minimum Gain Chargeback.
Notwithstanding any other provision of
this Section 10.1(c), if there is a net decrease in Minimum Gain during any Fiscal Year,
then, to the extent required by Regulations Section 1.704-2(f), each Member shall be
specially allocated items of Royal Street income and gain for such year (and, if
necessary, subsequent years) in an amount equal to such Members share of the net decrease
in Minimum Gain, determined in accordance with Regulations Section 1.704-2(g)(2). The
items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1 .704-2(j). This Section 10.1(c)(i) is intended to comply with the
minimum gain chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.
(ii)
Member Minimum Gain Chargeback.
Notwithstanding any other provision
of this Section 10.1(c) except Section 10.1(c)(i), if there is a net decrease in Member
Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, then, to
the extent required by Regulations Section 1.704-2(i)(4), each Member who has a share of
the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Regulations Section 1 .704-2(i)(5), shall be specially allocated items of
Royal Street income and gain for such year (and, if necessary, subsequent years) in an
amount equal to such Members share of the net decrease in Member Minimum Gain
attributable to such Member Nonrecourse Debt, determined in accordance with Regulations
Section 1.704-2(i)(4). The items to be so allocated shall be determined in accordance
with Regulations Sections 1.704-2(i)(4) and 1.704-2(j). This Section 10.1(c)(ii) is
intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(iii)
Qualified Income Offset.
In the event any Member unexpectedly
receives any adjustments, allocations or distributions described in Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5) or (6), items of Royal Street income and gain (consisting of a
pro rata portion of each item of Royal Street income, including gross income, and gain for
such year) shall be specially allocated to such Member in an amount and manner sufficient
to eliminate, to the extent required by the Regulations, the Adjusted Capital Account
Deficit of such Member as quickly as possible, provided that an allocation pursuant to
this Section 10.1(c)(iii) shall be made if and only to the extent that such Member would
have an Adjusted Capital Account Deficit after
-44-
all other allocations provided for in this Section 10.1(c) have been tentatively made as
if this Section 10.1(c)(iii) were not in this Agreement.
(iv)
Gross Income Allocation.
In the event any Member has a deficit
Capital Account at the end of any Fiscal Year that is in excess of the sum of (i) the
amount such Member is obligated to restore, and (ii) the amount such Member is deemed to
be obligated to restore pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), such Member shall be specially allocated items of Royal
Street income and gain (consisting of a pro rata portion of each item of Royal Street
income, including gross income, and gain for such year) in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section 10.1(c)(iv)
shall be made if and only to the extent that such Member would have a deficit Capital
Account in excess of such sum after all other allocations provided for in this Section
10.1(c) have been tentatively made as if Section 10.1(c)(iii) and this Section 10.1(c)(iv)
were not in this Agreement.
(v)
Nonrecourse Deductions.
Nonrecourse Deductions for any Fiscal Year
or other period shall be allocated to the Members in accordance with their Percentage
Interests.
(vi)
Member Nonrecourse Deductions.
Any Member
Nonrecourse Deductions for any Fiscal Year or other period shall be specially allocated to the Member
who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which
such Member Nonrecourse Deductions are attributable in accordance with Regulations Section
1 .704-2(i)(1).
(vii)
Section 754 Adjustment.
To the extent an adjustment to the adjusted
tax basis of any Royal Street Asset pursuant to Code Section 734(b) or 743(b) is required,
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in
determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall
be treated as an item of gain (if the adjustment increases the basis of the asset) or loss
(if the adjustment decreases such basis), and such gain or loss shall be specially
allocated to the Members in a manner consistent with the manner in which their Capital
Accounts are required to be adjusted pursuant to such Regulations Section.
(viii)
Curative Allocations.
The allocations set forth in the preceding
subsections to this Section 10.1(c) (the Regulatory Allocations) are intended to comply
with certain requirements of the Regulations. It is the intent of the Members that, to the
maximum extent possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of Royal Street income,
gain, loss and deduction pursuant to this Section 10.1(c)(viii). Therefore,
notwithstanding any other provision of this Article 10 (other than the Regulatory
Allocations), the Management Committee shall make such offsetting special allocations in
whatever manner it determines appropriate so that, after such offsetting allocations are
made, each Members Capital Account balance is, to the maximum extent possible, equal to
the Capital Account balance such Member would have had if the Regulatory Allocations were
not part of the Agreement and all Royal Street items to be reflected in the Members
Capital Accounts were allocated pursuant to Sections 10.1 (a) and
-45-
10.1 (b) without having given effect to such Regulatory Allocations. In exercising its
discretion under this Section 10.1(c)(viii), the Management Committee shall take into
account future Regulatory Allocations under Section 10.1(c)(i) and 10.1(c)(ii) that,
although not yet made, are likely to offset other Regulatory Allocations previously made
under Sections 10.1(c)(v) and 10.1(c)(vi).
(d)
Other Allocation Rules.
(i) For purposes of determining the Profits, Losses or any other items
allocable to any period, Profits, Losses and any such other items shall be determined on a
daily, monthly or other basis, as determined by the Management Committee using any
permissible method under Code Section 706 and the Regulations thereunder.
(ii) Except as otherwise provided in this Agreement, all items of Royal Street
income, gain, loss, deduction and any other allocations not otherwise provided for shall
be divided among the Members in the same proportions as they share Profits and Losses, as
the case may be, for the year.
(iii) The Members are aware of the income tax consequences of the allocations
made by this Section 10.1 and hereby agree to be bound by the provisions of this Section
10.1 in reporting their shares of Royal Street income and loss for income tax purposes.
(iv) Solely for purposes of determining a Members proportionate share of the
excess nonrecourse liabilities of Royal Street within the meaning of Regulations
Section 1 .752-3(a)(3), the Members interests in Royal Street profits shall be their
Percentage Interests.
(e)
Tax Allocations: Code Section 704(c)
(i) In accordance with Code Section 704(c) and the Regulations thereunder,
income, gain, loss and deduction with respect to any property contributed to the capital
of Royal Street, solely for tax purposes, shall be allocated among the Members so as to
take account of any variation between the adjusted basis of such property to Royal Street
for federal income tax purposes and its initial Gross Asset Value (computed in accordance
with clause (a) of the definition thereof).
(ii) In the event the Gross Asset Value of any Royal Street
Asset is adjusted pursuant to clause (b) of the definition of Gross Asset Value, subsequent
allocations of income, gain, loss and deduction with respect to such asset shall take
account of any variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the
Regulations thereunder.
(iii) All Section 704(c) allocations made by Royal Street pursuant to this
Section 10.1(e) shall be made by using any generally acceptable method under the
Regulations that the Tax Matters Partner elects, in its sole discretion. Allocations
pursuant to this Section 10.1(e) are solely for purposes of federal, state and local taxes
and shall not affect, or
-46-
in any way be taken into account in computing, any Members Capital Account or share of
Profits, Losses, other items or distributions pursuant to any provision of this Agreement.
10.2.
Distributions.
Except as otherwise provided in Sections 9.7 and 13.4,
distributions to the Members shall be governed by the following provisions:
(a) Royal Street may, but is not obligated to, make distributions from time to time, as
determined by the Management Committee in its sole discretion, to the Members in accordance with
their respective Percentage Interests.
(b) Notwithstanding Section 10.2(a) above, within thirty (30) days after the end of each
calendar year in which Royal Street has Profits for United States federal income tax purposes,
Royal Street shall make a distribution to each Member sufficient to provide such Member with an
amount equal to the estimated amount of all annual federal, state, local or foreign income tax
payments that such Member would be required to make with respect to such calendar year attributable
to such Profits, which estimate shall be made by the Management Committee or a Person designated by
the Management Committee based on information supplied by each such Member as to the maximum tax
rates applicable in the jurisdictions in which such Member is so taxable;
provided,
that
the total amount of such distributions shall not exceed the amount of Excess Cash then held by
Royal Street. In the case of any Member that is a pass- through entity for federal income tax
purposes, the calculations provided for in the preceding sentence shall be based on the tax rates
of the ultimate party or parties that are taxable on Profits allocated to such Member. Any
distributions under this Section 10.2(b) shall be treated as an advance against distributions to be
made under Section 10.2(a) in accordance with the nature of the event that gave rise to the Profits
for which the distribution is being made under this Section 10.2(b). As used herein, Excess Cash
means all cash and cash equivalents held by Royal Street at the time of determination in excess of
such amount that the Management Committee believes is appropriate for Royal Street to retain to
satisfy short-term liabilities of Royal Street and provide a reasonable reserve for Royal Streets
then current and future operating expenses.
10.3.
Distribution upon Dissolution.
Notwithstanding anything to the contrary
contained above, in the event of dissolution of the Company pursuant to Article 13 hereof, all
distributions shall be made pursuant to Article 13 hereof.
10.4.
Limitations on Distributions.
Notwithstanding any provision to the contrary
contained in this Agreement, Royal Street shall not make a
distribution to any Member on account of
its interest in Royal Street if such distribution would violate Section 18-607 of the Act or other
Applicable Law.
-47-
ARTICLE 11
Financial Reports; Books and Records
11.1.
Financial Reports.
(a)
Annual Statements.
As soon as practicable following the end of each
Fiscal Year, but in any event within ninety (90) days after the end of the Fiscal Year,
Royal Street shall cause to be prepared and delivered to each Member, the audited
statement of income and statement of cash flows for such Fiscal Year, audited balance
sheet as of the end of such fiscal year, and accompanying notes to financial statements
for Royal Street, on a consolidated basis, prepared in accordance with GAAP and certified
by an independent certified public accountant. Such annual statements also shall be
presented to the Management Committee for its review and approval.
(b)
Quarterly Statements.
As soon as practicable following the end of each
fiscal quarter, but in any event within forty-five (45) days after the end of such
quarter, Royal Street shall cause to be prepared and delivered to each Member, an
unaudited statement of income (including taxable income) and statement of cash flows for
such quarter and an unaudited balance sheet as of the end of such quarter on a
consolidated basis, prepared in accordance with GAAP.
(c)
Monthly Statements,
(i) As soon as practicable following the end of each
calendar month in each Fiscal Year, but in any event within thirty (30) days after the end
of such month, Royal Street shall cause to be prepared and delivered to each Member, an
unaudited statement of income and statement of cash flows for such month and an unaudited
balance sheet as of the end of such month on a consolidated basis, prepared in accordance
with GAAP, and (ii) Royal Street shall provide the Members with a monthly report of
significant operating and financial statistics including, to the extent applicable, number
of subscribers, subscriber churn statistics, minutes of use, average revenues per
subscriber, acquisition costs and capital expenditure efficiency statistics and such
additional statistics and information as may be approved from time to time by the
Management Committee for internal use by Royal Street.
(d)
Additional Information.
Royal Street shall, upon reasonable notice, give
each Initial Member, for so long as it Beneficially Owns LLC Units, during regular
business hours, reasonable access to the properties, documents and records, financial and
otherwise, of Royal Street, and shall provide copies or extracts of Royal Streets
documents and records as such Initial Member may reasonably request. Royal Street shall
permit the Initial Members to discuss its affairs and finances with the principal officers
of Royal Street and its respective independent public accountants at such times and during
such normal business hours as such Initial Member shall reasonably request.
11.2.
Books and Records.
(a) At all times during the continuance of Royal Street, Royal Street shall
maintain, at its principal place of business, separate books of account for Royal Street
that shall show a true and accurate record of all costs and expenses incurred, all charges
made, all credits made and received and all income derived in connection with the
operation of Royal Streets
-48-
business in accordance with GAAP consistently applied, and, to the extent
inconsistent therewith, in accordance with this Agreement.
(b) The Management Committee or a Person designated by the Management Committee
shall prepare and maintain, or cause to be prepared and maintained, the books of account
of Royal Street. The Management Committee or its designee shall prepare and file, or cause
to be prepared and filed, all applicable federal, state and local tax returns. Such books
of account and tax returns, together with a copy of this Agreement, shall at all times be
maintained at the principal place of business of Royal Street and shall be open to
inspection and examination at reasonable times by each Member and its duly authorized
representative for any purpose reasonably related to such Members interest in Royal
Street. Royal Street shall (i) retain such books of account and tax returns until the
expiration of the applicable statute of limitations of Royal Street and each Member (and,
to the extent a Member notifies Royal Street, any extensions thereof) and (ii) give each
Member reasonable written notice prior to transferring, destroying or discarding any such
books of account or tax returns and, if the Member so requests, allow such Member to take
possession of such books of account or tax returns.
ARTICLE 12
Indemnification
12.1.
Indemnification by C9 Wireless.
(a) Subject to Section 12.3, C9 Wireless shall save, defend, indemnify and hold
harmless the GWI Indemnified Parties and the Royal Street Indemnified Parties from any and
all Damages incurred by or assessed against the GWI Indemnified Parties or the Royal
Street Indemnified Parties to the extent resulting from:
(i) The breach of any representations or warranty made by C9 Wireless in
Article 3 of this Agreement;
(ii) Any breach by C9 Wireless of any of its covenants or agreements under this
Agreement that has a Material Adverse Effect on Royal Street or GWI.
(b) Royal Street Indemnified Parties shall only be entitled to seek
indemnification hereunder with respect to third Person claims against Royal Street. In the
case of any potential indemnification claim by Royal Street under this Section 12.1,
including any determination on behalf of Royal Street as to whether such a potential claim
exists, GWI shall be deemed to be the real party in interest with respect to such claim
and GWI shall have the authority to represent the interests of Royal Street in connection
with such claim. In such case, Royal Street shall reimburse GWI for any attorneys fees or
other expenses reasonably incurred by GWI in its representation of Royal Streets
interests.
12.2.
Indemnification by GWI.
(a) Subject to Section 12.3, GWI shall save, defend, indemnify and hold
harmless the C9 Wireless Indemnified Parties and the Royal Street Indemnified Parties from
any
-49-
and all Damages incurred by or assessed against the C9 Wireless Indemnified Parties or the
Royal Street Indemnified Parties, in an amount no greater than ***, to the extent resulting from:
(i) The
breach of any representations or warranty made by GWI or the MPCS
Member in Sections 3.1 or 3.3 of this Agreement;
(ii) Any
breach by GWI or the MPCS Member of any of its covenants or agreements
under this Agreement.
(b) Royal Street Indemnified Parties shall only be entitled to seek
indemnification hereunder with respect to third Person claims against Royal Street. In the
case of any potential indemnification claim by Royal Street under this Section 12.2,
including any determination on behalf of Royal Street as to whether such a potential claim
exists, C9 Wireless shall be deemed to be the real party in interest with respect to such
claim and C9 Wireless shall have the authority to represent the interests of Royal Street
in connection with such claim. In such case, Royal Street shall reimburse C9 Wireless for
any attorneys fees or other expenses reasonably incurred by C9 Wireless in its
representation of Royal Streets interests.
12.3.
Loss of Entrepreneur and Very Small Business Status: Other Transfers of
LLC Units.
(a) Each Initial Member shall provide prompt written notice to the other Initial
Member in the event that they become aware of any occurrence or circumstance that to their
actual knowledge does or would result in Royal Street not qualifying as an Entrepreneur or
Very Small Business (to the extent not already known to the other Initial Member).
(b) Notwithstanding anything to the contrary in this Agreement:
(i) In the event that Royal Street does not qualify as an Entrepreneur or Very Small
Business resulting in the loss of any closed License or the requirement of Royal Street
to make any Unjust Enrichment Payment as a result of a breach by C9 Wireless of Section
3.2, 4.1, 4.2, 6.1(g), 9.1 or 13.2(b) or Article 5 of this Agreement,
then
C9 Wireless
shall use reasonable best efforts to cure such breach within thirty (30) days of its
written notice to GWI of such breach or GWIs written notice to C9 Wireless of such
breach, as the case may be. In the event that C9 Wireless does not cure such breach within
such thirty (30) day period and Royal Street does not at the end of such thirty (30) day
period qualify as an Entrepreneur or Very Small Business resulting in the actual or
potential loss of any closed License or the requirement of Royal Street to make any
Unjust Enrichment Payment,
then
C9 Wireless shall, at the election of GWI, sell all of its
LLC Units to GWI or a third-party designated by GWI for a purchase
price equal to ***. The exercise by GWI of the election to
acquire the C9 Wireless interest shall not prevent GWI from exercising any other remedy it
may have, at law or in equity, including pursuing an action for breach of representations
and warranties by C9 Wireless.
(ii) In the event that the Services Agreement is terminated in its entirety as
to Royal Street by MetroPCS Wireless pursuant to Section 16.2(a)(i) of the Services
-50-
Agreement,
then
C9 Wireless shall have the right, but not the obligation, to require GWI
to, and GWI shall purchase, all of C9 Wireless LLC Units for a purchase price equal to ***;
provided
however
, that if the purchase of C9 Wireless LLC
Units under this Section 12.3(b)(ii) gives rise to an obligation to make an Unjust
Enrichment Payment to the FCC pursuant to Section 1.2111 of the FCC Rules (or any similar
rule) then the purchase price for such LLC Units shall be reduced by an amount equal to
the Unjust Enrichment Payment.
(iii) In the event that the Services Agreement is terminated in its entirety as
to Royal Street by Royal Street pursuant to Section 16.2(b)(iii) of the Services Agreement
upon the action of the C9 Wireless Managers,
then
C9 Wireless shall have the right, but
not the obligation, to require GWI to, and GWI shall, purchase all of C9 Wireless LLC
Units for a purchase price equal to ***.
(iv) In the event of a purchase by GWI of C9 Wireless LLC Units pursuant to
this Section 12.3(b), C9 Wireless and GWI shall use reasonable efforts, including
reasonable efforts to obtain all regulatory approvals, to consummate the closing of the
purchase of C9 Wireless LLC Units as soon as practicable. The closing of the purchase of
C9 Wireless LLC Units shall occur no later than ten (10) days following receipt of all
required regulatory approvals by Final Order or delivery by C9 Wireless to GWI of a
written notice hereunder if no such approvals are required.
12.4.
Limitations on Indemnification Obligations.
(a) The Parties hereto waive as against each other any claims to consequential,
special, exemplary or punitive damages except to the extent consequential, special,
exemplary or punitive damages are awarded to a third party against an indemnified party in
circumstances in which such indemnified party is entitled to indemnification hereunder. In
no event shall any partys indemnification obligations under
this Agreement exceed ***.
-51-
(b) In calculating any Damages to be paid under Sections 12.1 or 12.2, there shall be
deducted (i) any insurance recovery in respect thereof (retroactively, if necessary), and
(ii) the amount of any tax benefit to the indemnified party with respect to such Damages
(after giving effect to the tax effect of receipt of the indemnification payments).
(c) No indemnified party shall have any right to make any indemnification claim under
Sections 12.1 or 12.2 to the extent that payment of any Damages with respect to such claim
has been made to such Indemnified Party pursuant to Section 6.14.
12.5.
Indemnification Procedure.
Where one Party has indemnified the other
against any claim or legal action pursuant to Section 6.14,12.1 or 12.2, indemnification
shall be conditioned on compliance with the procedure outlined below:
(a) Provided that prompt notice is given of a claim or suit for which indemnification
might be claimed, except to the extent that the failure to provide such notice does not
actually and materially prejudice the interests of the party to whom such notice is to be
provided, the indemnifying party promptly will defend, contest, or otherwise protect
against any such claim or suit at its own cost and expense. Such notice shall describe the
claim or suit in reasonable detail and shall indicate the amount (estimated, if necessary)
of the loss that has been or may be suffered by the indemnified party.
(b) The indemnified party may, but will not be obligated to, participate at its own
expense in a defense thereof by counsel of its own choosing, but the indemnifying party
shall be entitled to control the defense unless the indemnified party has relieved the
indemnifying party from liability with respect to the particular matter, provided that the
indemnifying party may only settle or compromise the matter subject to indemnification
without the consent of the indemnified party if such settlement includes a complete
release of all indemnified parties as to the matters in dispute and provided further that
the indemnified party will not unreasonably withhold consent to any settlement or
compromise that requires its consent.
(c) In the event the indemnifying party fails to timely defend, contest, or otherwise
protect against any such claim or suit, the indemnified party may, but will not be
obligated to, defend, contest, or otherwise protect against the same, and may make any
compromise or settlement thereof and recover the entire costs thereof from the
indemnifying party, including reasonable attorneys fees, disbursements and all amounts
paid as a result of such claim or suit or the compromise or settlement thereof;
provided
,
however
, that if the indemnifying party undertakes the defense of such
matter, the indemnified party shall not be entitled to recover from the indemnifying party
for its costs incurred in the defense thereof other than the reasonable costs of
investigation undertaken by the indemnified party and reasonable costs of providing
assistance.
(d) The indemnified party shall cooperate and provide such assistance as the
indemnifying party may reasonably request in connection with the defense of the matter
subject to indemnification and in connection with recovering from any third parties
amounts that the indemnifying party may pay or be required to pay by way of
indemnification hereunder. The indemnified party shall take commercially reasonable steps
to protect its position with respect to
-52-
any matter that may be the subject of indemnification hereunder in the same manner as it
would any similar matter where no indemnification is available.
12.6.
Mitigation of Damages.
An indemnified party under Section 6.14,12.1 or
12.2 shall, to the extent practicable and reasonably within its control and at the
expense of the indemnifying party, make commercially reasonable efforts to mitigate any
damages of which it has adequate notice, provided that the indemnified party shall not be
obligated to act in contravention of Applicable Law or in contravention of reasonable and
customary practices of a prudent person in similar circumstances. The indemnifying party
under Section 6.14, 12.1 or 12.2 shall have the right, but not the obligation, and shall
be afforded the opportunity by the indemnified party to the extent reasonably possible,
to make commercially reasonable efforts to minimize damages before such damages actually
are incurred by the indemnified party.
ARTICLE
13
Termination of Royal Street; Liquidation
and Distribution of Assets
13.1.
No Dissolution.
Royal Street shall not be dissolved as a result of the
admission of Additional Members in accordance with the terms of this Agreement, nor in the
event there is only one Member as a result of the exercise and consummation of the Put or
GWIs right of first refusal or otherwise.
13.2.
Events Causing Dissolution.
(a) Royal Street shall be dissolved and its affairs shall be wound up upon the first
to occur of the following events:
(i) The unanimous written consent of all Members;
(ii) The issuance of a decree by any court of competent jurisdiction that Royal
Street be dissolved and liquidated;
(iii) Any event set forth in Section 18-801 of the Act or any successor
provision; or
(iv) By written notice delivered in accordance with Section
4.3(c).
Upon dissolution, Royal Street shall, subject to the terms hereof, promptly wind up
its affairs and shall promptly thereafter be liquidated and a certificate of cancellation
of the Certificate of Formation, as required by law, shall be filed with the Secretary of
State of the State of Delaware.
(b) Each Member covenants and agrees that it will not seek a judicial decree of
dissolution with respect to Royal Street or initiate voluntary bankruptcy or insolvency
proceedings with respect to Royal Street without the prior written consent of each of the
Initial Members.
-53-
13.3.
Winding Up.
(a) In the event of the dissolution of Royal Street pursuant to Section 13.2, subject
to the terms and conditions of this Agreement, Royal Streets affairs shall be wound up by
the Management Committee in consultation with the Members. Notwithstanding the dissolution
of Royal Street, prior to the termination of Royal Street as aforesaid, the business of
Royal Street and the affairs of the Members as such, shall continue to be governed by this
Agreement.
(b) Upon dissolution of Royal Street and until the filing of a certificate of
cancellation as provided in Section 18-203 of the Act, the Management Committee or a
Person designated by the Management Committee may, in the name of, and for and on behalf
of, Royal Street, prosecute and defend suits, whether civil, criminal or administrative,
gradually settle and close Royal Streets business, dispose of and convey Royal Streets
property, discharge or make reasonable provision for Royal Streets liabilities, and
distribute to the Members in accordance with Section 13.4 any remaining assets of Royal
Street, all without affecting the liability of Members and without imposing liability on
the Management Committee or its designee.
(c) Upon the completion of the winding up of Royal Street, the Management Committee
or its designee shall file a certificate of cancellation with the Secretary of State of
the State of Delaware as provided in Section 18-203 of the Act.
13.4.
Distribution Upon Liquidation.
Notwithstanding anything in this
Agreement to the contrary, in the event of any voluntary or involuntary liquidation,
dissolution or winding up
(collectively, a Liquidation) of Royal Street for any reason, a duly appointed trustee
or liquidator, as provided in this Agreement, shall promptly proceed with the liquidation
of Royal Street and its Subsidiaries and the proceeds of such liquidation shall be applied
and distributed in the following order of priority:
(a) Payment of creditors of Royal Street (other than Members) in the order of
priority as provided by law;
(b) Establishment of reserves as provided by the Management Committee to provide for
contingent liabilities, if any;
(c) Payment of debts of Royal Street to Members, if any, in the order of
priority provided by law; and
(d) The balance, if any, to the Members, in proportion to their positive Capital
Account balances as of the date of such distribution, after giving effect to all
contributions, distributions and allocations for all periods.
Whenever the liquidating trustee reasonably determines that any reserves established
pursuant to Section 13.4(b) are in excess of the reasonable requirements of Royal Street,
the amount determined to be excess shall be distributed to the Members in accordance with
the above provisions.
-54-
13.5.
Distributions to Members.
(a) Any distributions to C9 Wireless under this Article 13 in connection with a
Liquidation of Royal Street shall be made only in the form of cash. C9 Wireless shall not
have any right to a distribution or other transfer to C9 Wireless of any Royal Street
Assets, nor shall C9 Wireless have any right to cause the sale of any Royal Street Assets
under this Article 13, whether in connection with a Liquidation of Royal Street or C9
Wireless.
(b) GWI shall be entitled to bid for any indebtedness from Royal Street to GWI in any
sale or other disposition of Royal Streets assets in connection with a Liquidation of
Royal Street.
13.6.
Claims of the Members.
Subject to the express provisions of this
Agreement, the Members and former Members shall look solely to Royal Streets assets for
the return of their Capital Contributions, and if the assets of Royal Street remaining
after payment of or due provision for all debts, liabilities and obligations of Royal
Street are insufficient to return such Capital Contributions, the Members and former
Members shall have no recourse against Royal Street, the Management Committee or its
designee or any other Member.
ARTICLE 14
Withdrawal of a Member
14.1.
Withdrawal of a Member.
Any Member shall automatically cease to be a
Member at the time it no longer Beneficially Owns any LLC Units (a Withdrawal Event).
Immediately after a Withdrawal Event with respect to an Initial Member, such Initial
Member shall have no continuing rights or obligations under this Agreement, except as
provided herein.
14.2.
Effect of Withdrawal.
This Agreement shall continue notwithstanding any
withdrawal of an Initial Member and all governance rights set forth herein with respect to
the Initial Members shall be exercised by the sole remaining Initial Member. No withdrawal
shall relieve a Member from liability for any prior breach of this Agreement.
ARTICLE 15
Confidentiality
15.1.
General.
Each Party will hold in confidence and withhold from third
parties (other than as permitted below) any and all Proprietary Information received
pursuant to and all Proprietary Information used in the preparation and negotiation of,
this Agreement. Each Party will use such Proprietary Information only to fulfill its
obligations or enforce its rights hereunder, and for no other purposes unless the
disclosing Party will otherwise agree in writing.
15.2.
Obligation to Protect Proprietary Information.
Each Party will use
commercially reasonable efforts to safeguard any Proprietary Information received
pursuant to this Agreement from theft, loss or disclosure to others, and to limit access
to Proprietary Information to those
-55-
officers, directors and employees within the receiving Partys organization, and
subcontractors, consultants, investors, advisors, attorneys, service providers, business
partners, financing sources and others who reasonably require access in order to
accomplish the aforesaid purposes. Proprietary Information will be protected hereunder if
it is in written or other permanent form and identified as proprietary when provided. Any
such information in other than written or other permanent form when disclosed will be
considered Proprietary Information that is protected hereunder, unless the Party
disclosing such information advises the other Party that it is not Proprietary. The
receiving Party will not be liable for unauthorized use or disclosure of any such
Proprietary Information if it can establish that the same: (i) is or becomes public
knowledge or part of the knowledge or literature within the telecommunications industry
without breach of this Agreement by the receiving Party; (ii) is known to the receiving
Party without restriction as to further disclosure when received; (iii) is independently
developed by the receiving Party as demonstrated by written records; or (iv) is or becomes
known to the receiving Party from a third party who had a lawful right to disclose it
without breach of its contractual obligations.
15.3.
Judicial or Administrative Proceedings.
Should the receiving Party be
faced with judicial or administrative governmental action to disclose Proprietary
Information received hereunder, said receiving Party will use commercially reasonable
efforts to notify the disclosing Party in sufficient time to permit the disclosing Party
to intervene at its own expense in response to such action.
15.4.
Loss or Unauthorized Use.
The receiving Party agrees promptly to notify
the disclosing Party of the loss or unauthorized use or disclosure of any Proprietary
Information.
15.5.
Nondisclosure Agreements.
Each Party will have any third party or
Person to whom it provides the Proprietary Information of any other Party agree in writing
to be bound to protect such Proprietary Information on the same conditions as set forth
herein.
15.6.
Termination.
Upon termination of this Agreement for any reason, the
Parties will cease use of all Proprietary Information furnished by any other Party and
will, at the direction of the disclosing Party, return or destroy all such Proprietary
Information, together with all copies made hereof, except to the extent necessary to
enforce any rights hereunder or as may be necessary in connection with a regulatory
proceeding, or to the extent that the receiving Party retains a license to use such
Proprietary Information. Upon request, the receiving Party will send the other Party a
destruction certificate.
15.7.
Irreparable Injury by Disclosure to Third Parties.
Specifically, but
without limiting the foregoing, each Party agrees and acknowledges that the disclosure by
a Party of any Proprietary Information to any other third party could cause irreparable
harm to such Party, and agrees not to make such a disclosure. Each Party will have the
right to enforce the provision of this Section by injunctive relief, including specific
performance. Personnel of one Party or its Affiliates present at the premises of one of
the other Parties or its Affiliates will refrain from obtaining access to information that
is proprietary to the customers of such other Party or its Affiliates. Such personnel will
comply with the other Partys or its Affiliates reasonable measures established to
restrict such access.
-56-
15.8.
Survival of Nondisclosure Obligations.
The obligations of each Member
set forth in this Article 15 will survive for *** following the earlier of (a) the
withdrawal of such Member in accordance with the terms hereof, or (b) the termination of
this Agreement in accordance with the terms hereof.
ARTICLE 16
Miscellaneous
16.1.
Certificates.
(a) LLC Units shall be represented by a certificate or certificates, setting forth
upon the face thereof that Royal Street is a limited liability company formed under the
laws of the State of Delaware, the name of the Person to which it is issued and the number
of LLC Units which such certificate represents. Such certificates shall be entered in the
books of Royal Street as they are issued, and shall be signed by the Chairman or the Chief
Executive Officer of Royal Street. Upon any Transfer of LLC Units permitted under this
Agreement, the transferring Member shall request Royal Street to (i) issue to the
transferee a certificate representing the number of LLC Units so transferred and (ii)
surrender to Royal Street the existing certificate and Royal Street shall issue to the
transferring Member certificates representing the remaining LLC Units, if any, held by
such transferring Member after taking into account such Transfer. All certificates
representing LLC Units (unless registered under the Securities Act), shall bear the
following legend:
THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY SECURITIES REGULATORY
AUTHORITY OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, ENCUMBERED,
TRANSFERRED, GRANTED AN OPTION WITH RESPECT TO OR OTHERWISE DISPOSED OF, (I) UNLESS
AND UNTIL THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR SUCH SALE,
ASSIGNMENT, PLEDGE, ENCUMBRANCE, TRANSFER, OPTION GRANT OR OTHER DISPOSITION IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND (II) UNLESS IN ACCORDANCE
WITH THE PROVISIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT OF ROYAL STREET (AS
AMENDED FROM TIME TO TIME), A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
OFFICES OF ROYAL STREET.
(b) Each LLC Interest shall constitute a security within the meaning of (i) Article
8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect
from time to time in the States of Delaware and New York and (ii) the Uniform Commercial
Code of any other applicable jurisdiction that now or hereafter substantially includes the
1994 revisions to Article 8 thereof as adopted by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws and approved by the American
Bar Association on February 14, 1995.
-57-
(c)
Lost or Destroyed Certificates.
Royal Street may issue a new
certificate for LLC Units in place of any certificate or certificates theretofore issued
by it, alleged to have been lost or destroyed, upon the making of an affidavit of that
fact, and providing an indemnity in form and subject reasonably satisfactory to Management
Committee or its designee by the Person claiming the certificate to be lost or destroyed.
16.2.
Governing Law.
This Agreement and the rights and obligations of the
Parties shall be governed by and construed in accordance with and subject to the laws of
the State of Delaware, without reference to conflicts of laws principles.
16.3.
VENUE; WAIVER OF JURY TRIAL.
THE PARTIES HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL COURT OF THE
UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE SOLELY IN RESPECT OF THE
INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT OF THE TRANSACTIONS
CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH
DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT
BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE
APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL
COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON
OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH
PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND
HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.3.
16.4.
Notices.
All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given (i) on the first
Business Day following the date of delivery in person or by telecopy (in each case with
telephonic confirmation of receipt
-58-
by the addressee) or (ii) on the first Business Day following timely deposit with an overnight
courier service, if sent by overnight courier specifying next day delivery, to the Parties at the
following addresses (or at such other address for a Party as shall be specified by like notice):
If to GWI, to:
GWIPCSl,
Inc.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
Facsimile: (972) 860-2682
with copies to:
Paul, Hastings, Janofsky & Walker LLP
875 15th Street N.W.;
Twelfth Floor
Washington, DC 20005
Attention: Carl W. Northrop
Facsimile: (202) 551-1725
If to the MFCS Member, to:
MetroPCS Communications, Inc.
8144 Walnut Hill Lane
Suite 800
Dallas, TX 75231
Attention: Vice President, General Counsel and Secretary
Facsimile: (972) 860-2682
with copies to:
Paul, Hastings, Janofsky & Walker LLP
875 15th Street NW
Twelfth Floor
Washington, DC 20004
Attention: Carl W. Northrop
Facsimile: (202) 551-1725
If to C9 Wireless, to:
C9 Wireless, LLC
PO Box 2365
-59-
Southampton, NY 11969
Attention: Robert Gerard
Facsimile: (631) 283-9153
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Paul N. Roth, Michael R. Littenberg
Facsimile: (212) 593-5955
If to Royal Street, to:
Royal Street Communications, LLC
PO Box 2365
Southampton, NY 11969
Attention: Robert Gerard
Facsimile: (631) 283-9153
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Paul N. Roth, Michael R. Littenberg
Facsimile: (212) 593-5955
-60-
16.5.
Severability.
The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this Agreement, or the
application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a
suitable and equitable provision shall be substituted here fore in order to carry out, so far
as may be valid and enforceable without prejudicing or adversely affecting the economic or
similar interests of the Parties under this Agreement, the intent and purpose of such
invalid or unenforceable provision and (ii) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or unenforceability affect
the validity or enforceability of such provision, or the application thereof, in any other
jurisdiction. If any provision of this Agreement, or the application thereof to any Person
or any circumstance, is found by the FCC to violate applicable FCC Rules, the Parties shall
negotiate in good faith to agree on a suitable and equitable amendment to such provision,
provided that any such amendment shall not prejudice or adversely affect the economic or
similar rights of the Parties under this Agreement.
16.6.
Counterparts.
For the convenience of the Parties hereto, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to be an
original and all of which shall together constitute the same agreement.
16.7.
Successors and Assigns.
This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and permitted assigns
and shall not be assignable except to the extent expressly permitted hereby. No Transfer or
acquisition of any LLC Units in violation of any provision of this Agreement shall be
effective to pass any title to,or create any interest in favor of, any Person, and any such
purported Transfer or acquisition shall be void, but the Member attempting to effect such
Transfer or acquisition shall be deemed to have committed a material breach hereof.
16.8.
Entire Agreement; Amendment: Waiver.
This Agreement and all other
written agreements between the Parties and between GWI and Royal Street dated as of the
Effective Date constitute the entire agreement between the Parties with respect to the
subject matter hereof and thereof, and supercedes all prior agreements between the Parties.
This Agreement may not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by the Party or Parties
affected or to be affected thereby;
provided,
that the consent or approval of any
departing Member shall not be required to execute any amendment, supplement or modification
of this Agreement unless the departing Member is materially and adversely affected thereby.
No waiver of any provisions hereof by any Party shall be deemed a waiver of any other
provisions hereof by any such Party, nor shall any such waiver be deemed a continuing waiver
of any provision hereof by such Party.
16.9.
Further Assurances; Controlled Subsidiaries.
The Parties hereto shall
at any time, and from time to time execute and deliver such additional instruments and
other documents and shall at any time, and from time to time take such further actions as
may be reasonably necessary or appropriate to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby (subject to the
limitations on obligations to modify or amend the terms hereof as set forth elsewhere
herein). In addition to any other obligations set forth in the Agreement, each Party agrees
to take such action (including the execution, acknowledgment
-61-
and delivery of documents) as may reasonably be requested by any other Party for the
implementation or continuing performance of this Agreement. Unless otherwise expressly set
forth herein, any agreement by a Party to take or refrain from taking any action shall
constitute an agreement by such party to cause each of its controlled subsidiaries to so
act or refrain from acting.
16.10.
THIRD PARTY BENEFICIARIES
. NOTHING IN THIS AGREEMENT,EXPRESS OR IMPLIED, IS
INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF ANY NATURE WHATSOEVER
UNDER OR BY REASON OF THIS AGREEMENT.
16.11.
Exculpation
. The Parties agree that the individuals executing this Agreement
on behalf of the Members have done so in their respective capacities as officers or
trustees of the Members and not individually, and none of the direct or indirect partners,
trustees, officers or shareholders of any Initial Member shall be bound or have any
personal liability hereunder.
16.12.
Joint Work Product
. This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their respective counsel and will be fairly
interpreted in accordance with its terms. In the event of any ambiguities, no inferences
will be drawn against any Party.
16.13.
Expenses.
Each Party shall be responsible for its own expenses
arising under this Agreement, except as follows:
(a) Royal
Street shall reimburse C9 Wireless for its reasonable and duly documented
out-of-pocket costs and expenses incurred by C9 Wireless in
connection with the preparation
of this Agreement and the Ancillary Agreements, the establishment of
Royal Street and C9
Wireless and the Financing, up to a maximum of $35,000; and
(b) Royal Street shall reimburse GWI for its reasonable and duly
documented out-of-pocket costs and expenses incurred by GWI in connection with the
preparation of this Agreement and the Ancillary Agreements, the establishment of Royal
Street and the Financing, in an amount such that the amount reimbursed pursuant to this
Section 16.13(b) equals 85% of the aggregate amount reimbursed pursuant to Sections
16.13(a) and (b).
All amounts reimbursed hereunder shall be paid by Royal Street to the appropriate
Member no later than on the earliest to occur of (i) the Effective Date or (ii) the date
of the termination of this Agreement.
16.14.
Publicity
. The Parties agree to cooperate in the preparation and
dissemination of publicity concerning this Agreement. No Party will make a public
announcement about this Agreement or the Parties discussions related to any aspect of it,
without the written consent of the other Party, which consent will not be unreasonably
refused, delayed, or conditioned. Any Party may at any time make announcements which are
required by Applicable Law, regulatory bodies, or stock exchange or stock association
rules, so long as the Party so required to make the announcement notifies in advance the
other Party of such requirement and promptly discusses with the other Party in good faith
the wording of any such announcement.
-62-
16.15.
Regulatory Filings
. Each Party will cooperate to the extent reasonably
practicable in the preparation and filing of any regulatory filings necessary or advisable
to permit the performance of the matters set forth in this Agreement, including the
provision of any information as may reasonably be necessary herefore, and Royal Street
shall reimburse each Party for its reasonable and duly documented expenses incurred in
connection therewith in accordance with Section 16.13.
16.16.
No Brokers or Finders.
All negotiations relative to this Agreement
and the transactions contemplated hereby have been carried on by the parties directly
without the intervention of any Person who may be entitled to any brokerage or finders fee
or other commission in respect to this Agreement or the consummation of the transactions
contemplated hereby. The parties have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders fees or agents commissions or other similar payment
in connection with this Agreement or the transactions contemplated hereby.
16.17. [Intentionally deleted].
ARTICLE 17
Dispute Resolution
17.1.
Informal Discussions.
Subject to FCC Rules, the Members hereto agree to
settle any dispute, controversy or difference which may arise between or among them in
connection with this Agreement or any Schedule or Exhibit attached hereto (except as
otherwise expressly contemplated by this Agreement or any such Schedule or Exhibit) by good
faith discussions between or among representatives (Representatives) designated by the
Members to the dispute (the Disputing Members). During the course of the discussions
between or among the Representatives, the Disputing Members will comply with all reasonable
requests for access to relevant information.
17.2.
Arbitration.
(a) In
the event that such dispute, controversy or difference is not resolved within
thirty (30) days after the commencement of discussion between or
among the Representatives
or the conclusion in good faith of the Representatives that amicable
resolution of the
dispute, controversy or difference does not appear likely, whichever is earlier, then
the dispute, controversy or difference shall be finally settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration Association.
(b) The
arbitration shall be held in Wilmington, Delaware or such other location as
the Disputing Members shall mutually agree. The arbitration shall be
heard by a panel of
three arbitrators, each of whom shall be experienced in the resolution of
disputes, controversies and differences relating to telecommunications services. If there
are two Disputing Members, one such arbitrator shall be selected by one Disputing Member,
one such arbitrator shall be selected by the other Disputing Member and the third
arbitrator shall be selected by the arbitrators selected by the Disputing Members. If there
are more than two Disputing Members, the three arbitrators shall be selected by the
President of the American Arbitration Association.
-63-
Resolution of the dispute, controversy or difference shall be determined by a majority vote of
the arbitration panel.
(c) The
Disputing Members shall bear equally all fees, costs and expenses of the arbitration,
and each Disputing Member shall bear its own legal expenses and costs
of all experts and witnesses
relating thereto;
provided
,
however
, that if the claim
of any Disputing Member is upheld by
the arbitration panel in all material respects, then the arbitration
panel may apportion between or
among the Disputing Members as such arbitration panel may deem equitable the costs incurred by the
prevailing Disputing Member.
(d) Any
award rendered by the arbitration panel shall be final and conclusive upon the
Disputing Members and any judgment thereon maybe enforced in any
court of competent jurisdiction,
unless: (i) the award was procured by corruption, fraud or other
manifest undue means; (ii) the
arbitrators exceeded their powers (it being acknowledged that the arbitrators are entitled to hear
any dispute, controversy or difference relating in any way to this Agreement or any Schedule or
Exhibit attached hereto); or (iii) the arbitrators have been
guilty of misconduct. The Disputing
Member submitting such dispute shall request the American Arbitration Association to: (y) allow for
the Disputing Members to request reasonable discovery pursuant to the rules then in effect under the
Federal Rules of Civil Procedure for a period not to exceed sixty (60) days prior to such
arbitration, and (z) require the testimony to be transcribed.
(e) The
fact that arbitration has commenced in accordance with this Article 17 shall not impair
the ability of any Member to exercise any termination rights in
accordance with Article 13 hereof.
(Signature Pages On Following Pages)
-64-
Signature Page, Amended and Restated LLC Agreement
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date and year first written above.
|
|
|
|
|
|
|
|
|
GWI PCS1, INC.:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
|
Name: Roger D. Linquist
|
|
|
|
|
Title: President and CEO
|
|
|
|
|
|
|
|
|
|
|
|
C9 WIRELESS, LLC:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert A. Gerard
|
|
|
|
|
Name: ROBERT A. GERARD
|
|
|
|
|
Title: MANAGER
|
|
|
|
|
|
|
|
|
|
|
|
METROPCS WIRELE SS,
INC.:
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Roger D. Linquist
|
|
|
|
|
Name: Roger D. Linquist
|
|
|
|
|
Title: President and CEO
|
|
|
EXECUTION COPY
FIRST AMENDMENT TO THE AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT OF ROYAL STREET COMMUNICATIONS, LLC
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ROYAL STREET COMMUNICATIONS,
LLC
(this
Amendment
) is effective as of January 1, 2007, by and among
C9 WIRELESS, LLC,
a Delaware limited liability company
(
C9
),
GWI PCS1, INC.,
a Delaware corporation (GWI)
and
METROPCS WIRELESS, INC.,
a Delaware corporation
(MetroPCS and along with GWI, the MetroPCS Parties).
W I T N E S S E T H
WHEREAS, C9 and MetroPCS Parties are parties to that certain Amended and
Restated Limited Liability Company Agreement of Royal Street Communications, LLC
(Royal Street), executed on December 15, 2005 as of November 24, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the
LLC Agreement
); and
WHEREAS, C9 and the MetroPCS Parties are the sole parties to the LLC Agreement and the sole members of Royal Street; and
WHEREAS, pursuant to Section 16.8 of the LLC Agreement, the LLC Agreement may be amended by an instrument
in writing signed by the Party or Parties affected or to be affected by any such amendment; and
WHEREAS, C9 and the MetroPCS Parties desire to, and have agreed to amend the provision of the LLC Agreement
relating to the compensation of the Chief Executive Officer to
provide for ***.
NOW THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree to amend the LLC Agreement as follows:
1.
Capitalized Terms
. All capitalized terms used herein which are not defined herein
shall have the meanings ascribed thereto in the LLC Agreement, as amended hereby.
2.
Amendment to Section 6.12
. Section 6.12 of the LLC Agreement (Officers) is hereby
modified and amended by deleting Subsection (c) of such Section in its entirety and by substituting the following in lieu thereof:
(c) The
initial CEO shall receive an annual salary of $*** or such other annual salary as is determined by the
Management Committee in accordance with Section 6.1(g) above. In addition, all officers shall be entitled to reimbursement
of out-of-pocket expenses incurred in connection with the performance
of their duties as officers, ***.
3.
No
Other Amendments
. Except for the amendments, releases, authorizations and
waivers set forth above, the text of the LLC Agreement shall remain unchanged and in full force
and effect.
4.
Effective
Date
. The Amendment will be effective as of the date first written
above.
5.
Representations
and Warranties
. Each of C9 and the MetroPCS Parties agrees,
represents and warrants in favor of the other that this Amendment has been executed and delivered
by a duly authorized representative of such, and the LLC Agreement, as modified and amended by this
Amendment, constitutes a legal, valid and binding obligation of each such party and is enforceable
against each such party in accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws or (ii) general principles
of equity;
6.
Effect
on the LLC Agreement
. Except as specifically provided herein, the LLC
Agreement shall remain in full force and effect, and is hereby ratified, reaffirmed and confirmed.
7.
Counterparts
. This
Amendment may be executed in any number of separate counterparts,
each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute
one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be
necessary to produce or account for more than one such counterpart signed by the party against whom such
enforcement is sought. Delivery of an executed counterpart of this Amendment by facsimile or other
electronic method of transmission shall be equally as effective as delivery of an original executed
counterpart of this Amendment.
8.
Law
of Contract
. This Amendment and the rights and obligations of the Parties shall
be governed by and construed in accordance with and subject to the laws of the State of Delaware, without
regard to conflicts of laws principles.
(signature page follows)
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first written above.
|
|
|
|
|
|
C9 WIRELESS, LLC,
a Delaware limited liability company
|
|
|
By:
|
/s/ Robert A. Gerard
|
|
|
|
Name:
|
Robert A. Gerard
|
|
|
|
Title:
|
Sole Member
|
|
|
|
|
|
|
|
|
GWI PCS1, INC.,
a Delaware Corporation
|
|
|
By:
|
/s/ Roger D. Linquist
|
|
|
|
Name:
|
Roger D. Linquist
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
|
|
|
|
|
|
|
METROPCS WIRELESS, INC.,
a Delaware Corporation
|
|
|
By:
|
/s/ Roger D. Linquist
|
|
|
|
Name:
|
Roger D. Linquist
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
|
Exhibit 10.12
EXECUTION VERSION
$1,696,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 20, 2007
among
METROPCS WIRELESS, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
BEAR STEARNS CORPORATE LENDING INC.,
as Administrative Agent and Syndication Agent,
BEAR, STEARNS & CO. INC.,
as Sole Lead Arranger and Joint Book Runner,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Joint Book Runner
and
BANC OF AMERICA SECURITIES LLC
as Joint Book Runner
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
|
SECTION 1. DEFINITIONS
|
|
|
2
|
|
|
1.1.
|
|
|
Defined Terms
|
|
|
2
|
|
|
1.2.
|
|
|
Other Definitional Provisions
|
|
|
38
|
|
|
1.3.
|
|
|
Letter of Credit Amounts
|
|
|
39
|
|
|
1.4.
|
|
|
Relationship with Original Credit Agreement
|
|
|
39
|
|
|
|
|
|
|
|
|
|
|
SECTION 2. AMOUNT AND TERMS OF TERM COMMITMENTS; INCREMENTAL FACILITIES
|
|
|
40
|
|
|
2.1.
|
|
|
Term Commitments
|
|
|
40
|
|
|
2.2.
|
|
|
Procedure for Tranche B Term Loan Borrowing
|
|
|
40
|
|
|
2.3.
|
|
|
Repayment of Term Loans
|
|
|
41
|
|
|
2.4.
|
|
|
Increase in Commitments
|
|
|
41
|
|
|
|
|
|
|
|
|
|
|
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
|
|
|
43
|
|
|
3.1.
|
|
|
Revolving Commitments
|
|
|
43
|
|
|
3.2.
|
|
|
Procedure for Revolving Loan Borrowing
|
|
|
43
|
|
|
3.3.
|
|
|
Swingline Commitment
|
|
|
44
|
|
|
3.4.
|
|
|
Procedure for Swingline Borrowing; Refunding of Swingline Loans
|
|
|
44
|
|
|
3.5.
|
|
|
Commitment Fees, etc.
|
|
|
46
|
|
|
3.6.
|
|
|
Termination or Reduction of Revolving Commitments
|
|
|
46
|
|
|
3.7.
|
|
|
L/C Commitment
|
|
|
46
|
|
|
3.8.
|
|
|
Procedure for Issuance of Letter of Credit
|
|
|
47
|
|
|
3.9.
|
|
|
Fees and Other Charges
|
|
|
48
|
|
|
3.10.
|
|
|
L/C Participations
|
|
|
48
|
|
|
3.11.
|
|
|
Reimbursement Obligation of the Borrower
|
|
|
49
|
|
|
3.12.
|
|
|
Obligations Absolute
|
|
|
49
|
|
|
3.13.
|
|
|
Letter of Credit Payments
|
|
|
50
|
|
|
3.14.
|
|
|
Applications
|
|
|
50
|
|
|
|
|
|
|
|
|
|
|
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
|
|
|
50
|
|
|
4.1.
|
|
|
Optional Prepayments
|
|
|
50
|
|
|
4.2.
|
|
|
Mandatory Offers to Prepay
|
|
|
51
|
|
|
4.3.
|
|
|
Conversion and Continuation Options
|
|
|
52
|
|
|
4.4.
|
|
|
Limitations on Eurodollar Tranches
|
|
|
53
|
|
|
4.5.
|
|
|
Interest Rates and Payment Dates
|
|
|
53
|
|
|
4.6.
|
|
|
Computation of Interest and Fees
|
|
|
54
|
|
|
4.7.
|
|
|
Inability to Determine Interest Rate
|
|
|
54
|
|
|
4.8.
|
|
|
Pro Rata Treatment and Payments
|
|
|
54
|
|
|
4.9.
|
|
|
Requirements of Law
|
|
|
56
|
|
|
4.10.
|
|
|
Taxes
|
|
|
57
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
4.11.
|
|
|
Indemnity
|
|
|
59
|
|
|
4.12.
|
|
|
Change of Lending Office
|
|
|
60
|
|
|
4.13.
|
|
|
Replacement of Lenders
|
|
|
60
|
|
|
4.14.
|
|
|
Evidence of Debt
|
|
|
60
|
|
|
4.15.
|
|
|
Illegality
|
|
|
61
|
|
|
|
|
|
|
|
|
|
|
SECTION 5. REPRESENTATIONS AND WARRANTIES
|
|
|
61
|
|
|
5.1.
|
|
|
Financial Condition
|
|
|
61
|
|
|
5.2.
|
|
|
No Change
|
|
|
62
|
|
|
5.3.
|
|
|
Corporate Existence; Compliance with Law
|
|
|
62
|
|
|
5.4.
|
|
|
Power; Authorization; Enforceable Obligations
|
|
|
63
|
|
|
5.5.
|
|
|
No Legal Bar
|
|
|
63
|
|
|
5.6.
|
|
|
Litigation
|
|
|
63
|
|
|
5.7.
|
|
|
No Default
|
|
|
64
|
|
|
5.8.
|
|
|
Ownership of Property; Liens, Etc.
|
|
|
64
|
|
|
5.9.
|
|
|
Intellectual Property
|
|
|
64
|
|
|
5.10.
|
|
|
Taxes
|
|
|
64
|
|
|
5.11.
|
|
|
Federal Regulations
|
|
|
65
|
|
|
5.12.
|
|
|
Labor Matters
|
|
|
65
|
|
|
5.13.
|
|
|
ERISA
|
|
|
65
|
|
|
5.14.
|
|
|
Investment Company Act
|
|
|
66
|
|
|
5.15.
|
|
|
Subsidiaries
|
|
|
66
|
|
|
5.16.
|
|
|
Use of Proceeds
|
|
|
66
|
|
|
5.17.
|
|
|
Environmental Matters
|
|
|
67
|
|
|
5.18.
|
|
|
Accuracy of Information, etc.
|
|
|
67
|
|
|
5.19.
|
|
|
Security Documents
|
|
|
68
|
|
|
5.20.
|
|
|
Solvency
|
|
|
68
|
|
|
5.21.
|
|
|
Maintenance of Properties
|
|
|
68
|
|
|
5.22.
|
|
|
Public Holding Utility Act
|
|
|
69
|
|
|
5.23.
|
|
|
Certain Fees
|
|
|
69
|
|
|
5.24.
|
|
|
Certain Documents
|
|
|
69
|
|
|
5.25.
|
|
|
Regulation H
|
|
|
69
|
|
|
|
|
|
|
|
|
|
|
SECTION 6. CONDITIONS PRECEDENT
|
|
|
69
|
|
|
6.1.
|
|
|
Conditions to the Restatement Date
|
|
|
69
|
|
|
6.2.
|
|
|
Conditions to Each Extension of Credit
|
|
|
72
|
|
|
|
|
|
|
|
|
|
|
SECTION 7. AFFIRMATIVE COVENANTS
|
|
|
73
|
|
|
7.1.
|
|
|
Financial Statements
|
|
|
73
|
|
|
7.2.
|
|
|
Certificates; Other Information
|
|
|
74
|
|
|
7.3.
|
|
|
Payment of Obligations
|
|
|
76
|
|
|
7.4.
|
|
|
Maintenance of Existence; Compliance
|
|
|
76
|
|
|
7.5.
|
|
|
Maintenance of Property; Insurance
|
|
|
77
|
|
|
7.6.
|
|
|
Inspection of Property; Books and Records; Discussions
|
|
|
77
|
|
|
7.7.
|
|
|
Notices
|
|
|
78
|
|
|
7.8.
|
|
|
Environmental Laws
|
|
|
78
|
|
|
7.9.
|
|
|
Interest Rate Protection
|
|
|
79
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
7.10.
|
|
|
Additional Collateral, etc.
|
|
|
79
|
|
|
7.11.
|
|
|
Further Assurances
|
|
|
80
|
|
|
7.12.
|
|
|
ERISA Compliance
|
|
|
81
|
|
|
7.13.
|
|
|
Lender Meetings
|
|
|
81
|
|
|
7.14.
|
|
|
Royal Street Loan Documents
|
|
|
81
|
|
|
|
|
|
|
|
|
|
|
SECTION 8. NEGATIVE COVENANTS
|
|
|
81
|
|
|
8.1.
|
|
|
Acquisitions
|
|
|
81
|
|
|
8.2.
|
|
|
Indebtedness
|
|
|
81
|
|
|
8.3.
|
|
|
Liens
|
|
|
84
|
|
|
8.4.
|
|
|
Fundamental Changes
|
|
|
84
|
|
|
8.5.
|
|
|
Disposition of Property
|
|
|
84
|
|
|
8.6.
|
|
|
Restricted Payments
|
|
|
85
|
|
|
8.7.
|
|
|
Modifications of Certain Debt Instruments
|
|
|
87
|
|
|
8.8.
|
|
|
Transactions with Affiliates
|
|
|
88
|
|
|
8.9.
|
|
|
Sales and Leasebacks
|
|
|
89
|
|
|
8.10.
|
|
|
Hedge Agreements
|
|
|
89
|
|
|
8.11.
|
|
|
Changes in Fiscal Year
|
|
|
89
|
|
|
8.12.
|
|
|
Negative Pledge Clauses; Subsidiary Distributions
|
|
|
89
|
|
|
8.13.
|
|
|
International Operations; Foreign Subsidiaries
|
|
|
90
|
|
|
8.14.
|
|
|
Limitation on Leases
|
|
|
90
|
|
|
8.15.
|
|
|
ERISA Compliance
|
|
|
90
|
|
|
8.16.
|
|
|
Environmental Matters
|
|
|
91
|
|
|
8.17.
|
|
|
Subsidiaries
|
|
|
92
|
|
|
8.18.
|
|
|
Financial Condition Covenants
|
|
|
92
|
|
|
8.19.
|
|
|
Lines of Business
|
|
|
93
|
|
|
|
|
|
|
|
|
|
|
SECTION 9. EVENTS OF DEFAULT
|
|
|
93
|
|
|
|
|
|
|
|
|
|
|
SECTION 10. THE AGENTS
|
|
|
96
|
|
|
10.1.
|
|
|
Appointment
|
|
|
96
|
|
|
10.2.
|
|
|
Delegation of Duties
|
|
|
97
|
|
|
10.3.
|
|
|
Exculpatory Provisions
|
|
|
97
|
|
|
10.4.
|
|
|
Reliance by Agents
|
|
|
97
|
|
|
10.5.
|
|
|
Notice of Default
|
|
|
98
|
|
|
10.6.
|
|
|
Non-Reliance on Agents and Other Lenders
|
|
|
98
|
|
|
10.7.
|
|
|
Indemnification
|
|
|
98
|
|
|
10.8.
|
|
|
Agent in Its Individual Capacity
|
|
|
99
|
|
|
10.9.
|
|
|
Successor Administrative Agent and Issuing Lender
|
|
|
99
|
|
|
10.10.
|
|
|
Agents Generally
|
|
|
100
|
|
|
10.11.
|
|
|
The Lead Arranger
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
SECTION 11. MISCELLANEOUS
|
|
|
100
|
|
|
11.1.
|
|
|
Amendments and Waivers
|
|
|
100
|
|
|
11.2.
|
|
|
Notices
|
|
|
102
|
|
|
11.3.
|
|
|
No Waiver; Cumulative Remedies
|
|
|
103
|
|
|
11.4.
|
|
|
Survival of Representations and Warranties
|
|
|
104
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
11.5.
|
|
|
Payment of Expenses and Taxes
|
|
|
104
|
|
|
11.6.
|
|
|
Successors and Assigns; Participations and Assignments
|
|
|
105
|
|
|
11.7.
|
|
|
Adjustments; Set-off
|
|
|
108
|
|
|
11.8.
|
|
|
Counterparts
|
|
|
109
|
|
|
11.9.
|
|
|
Severability
|
|
|
109
|
|
|
11.10.
|
|
|
Integration
|
|
|
109
|
|
|
11.11.
|
|
|
GOVERNING LAW
|
|
|
109
|
|
|
11.12.
|
|
|
Submission To Jurisdiction; Waivers
|
|
|
109
|
|
|
11.13.
|
|
|
Acknowledgments
|
|
|
110
|
|
|
11.14.
|
|
|
Releases of Guarantees and Liens
|
|
|
110
|
|
|
11.15.
|
|
|
Confidentiality
|
|
|
111
|
|
|
11.16.
|
|
|
WAIVERS OF JURY TRIAL
|
|
|
112
|
|
|
11.17.
|
|
|
Delivery of Addenda
|
|
|
112
|
|
|
11.18.
|
|
|
USA PATRIOT Act
|
|
|
112
|
|
|
11.19.
|
|
|
Certain Regulatory Requirements
|
|
|
112
|
|
|
11.20.
|
|
|
Preservation of Priority
|
|
|
112
|
|
iv
ANNEXES
:
SCHEDULES
:
|
|
|
1.1A
|
|
Existing Liens
|
3.7
|
|
Existing Letters of Credit
|
5.3
|
|
Governmental Requirements
|
5.4
|
|
Consents, Authorizations, Filings and Notices
|
5.6
|
|
Litigation
|
5.8
|
|
Title; Liens
|
5.9
|
|
Intellectual Property
|
5.15
|
|
Subsidiaries
|
5.19(a)
|
|
UCC Filing Jurisdictions
|
5.19(b)
|
|
Mortgage Filing Jurisdictions
|
8.2(f)
|
|
Existing Indebtedness
|
EXHIBITS
:
|
|
|
A
|
|
Form of Reaffirmation Agreement
|
B
|
|
Form of Compliance Certificate
|
C
|
|
Form of Restatement Date Certificate
|
D
|
|
Form of Mortgage
|
E
|
|
Form of Assignment and Assumption
|
F
|
|
Form of Legal Opinion of Baker Botts L.L.P.
|
G-1
|
|
Form of Term Note
|
G-2
|
|
Form of Revolving Note
|
G-3
|
|
Form of Swingline Note
|
H
|
|
Form of Exemption Certificate
|
I
|
|
Form of Addendum
|
J
|
|
Form of Solvency Certificate
|
K
|
|
Form of Secretarys Certificate
|
v
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 20, 2007, by and among
METROPCS WIRELESS, INC., a Delaware corporation (the
Borrower
), the several banks and
other financial institutions or entities from time to time parties to this Agreement (the
Lenders
), BEAR, STEARNS & CO. INC. (
Bear
), as sole lead arranger (in such
capacity, the
Lead Arranger
) and joint book runner, BEAR STEARNS CORPORATE LENDING INC.,
as syndication agent (in such capacity, the
Syndication Agent
), MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED (
ML
), as joint book runner, BANC OF AMERICA SECURITIES LLC
(
BAS
), as joint book runner, BEAR STEARNS CORPORATE LENDING INC., as administrative agent
(in such capacity and together with its successors in such capacity, the
Administrative
Agent
) and Bank of America, N.A., as issuing lender (in such capacity and together with its
successors in such capacity, the
Issuing Lender
). Bear, ML and BAS are collectively
referred to herein as the
Joint Book Runners
.
WHEREAS, on November 3, 2006 the Borrower, certain of the Lenders, and Bear Stearns Corporate
Lending Inc., as administrative agent, among others, entered into a Credit Agreement (the
Original Credit Agreement
), pursuant to which (a) certain of the Lenders thereunder
agreed to extend credit to the Borrower on a revolving credit basis, in the aggregate principal
amount of up to One Hundred Million Dollars ($100,000,000) and (b) certain of the Lenders
thereunder (the
Original Term Lenders
) made term loans to the Borrower on the Closing
Date in an aggregate principal amount of One Billion Six Hundred Million Dollars ($1,600,000,000),
of which One Billion Five Hundred Ninety Six Million Dollars ($1,596,000,000) is outstanding on the
Restatement Date (the
Original Term Loans
).
WHEREAS, the Borrower desires that certain of the Lenders and the other parties hereto agree
to amend and restate the Original Credit Agreement in its entirety to: (i) establish Term Loans to
be extended hereunder and (ii) make certain other changes as more fully set forth herein, which
amendment and restatement shall become effective upon the Restatement Date.
WHEREAS, pursuant to the final paragraph of Section 11.1 of the Original Credit Agreement and
pursuant to the signatures of the Lenders on their signature pages or Addenda hereto, as
applicable, constituting at least the Required Lenders, the Lenders have authorized the
Administrative Agent to execute this Agreement.
WHEREAS, the Borrower shall deliver notices to the Administrative Agent in accordance with the
terms of Section 4.1 of the Credit Agreement stating the Borrowers intent to optionally prepay the
Original Terms Loans outstanding under the Original Credit Agreement, contingent upon the
Borrowers receipt (or deemed receipt) of the proceeds of the Tranche B Term Loans on the
Restatement Date.
WHEREAS, the Original Term Lenders party hereto have agreed to extend Tranche B Term Loans
hereunder in the amounts of their respective Tranche B Term Commitments in accordance with Section
2.1, the proceeds of which shall be deemed to optionally prepay the Original Term Loans of such
Original Term Lenders on the Restatement Date.
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Original Credit Agreement and that this
Agreement amend and restate in its entirety the Original Credit Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1.
Defined Terms
. As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1.
Acquisition
: a transaction or multiple transactions in which any entity acquires or
proposes to acquire by purchase or otherwise all of the capital stock of any Person, more than 50%
of the total voting power of shares of stock to vote in elections of Persons or any Person having
the power to direct or cause the direction of management and policies thereof, all or substantially
all of the assets of any Person, or any division of any Person, or any business as defined for
purposes of Regulation S-X under the Securities Act.
Addendum
: an instrument, substantially in the form of Exhibit I, by which a
Revolving Lender became a party to this Agreement on the Closing Date, or by which a Tranche B Term
Lender becomes a party to this Agreement as of the Restatement Date.
Adjustment Date
: as defined in the Pricing Grid.
Administrative Agent
: as defined in the preamble to this Agreement.
Affiliate
: as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, control (including, with correlative meanings, the terms controlling, controlled
by and under common control with), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 20% or more of the Capital Stock having ordinary voting power
for the election of directors of such Person or (ii) to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting securities or by
contract or otherwise;
provided
that Bear Stearns Corporate Lending Inc. and its Affiliates shall
not be deemed (by reason of ownership of any Capital Stock) to be an Affiliate of the Borrower and
its Subsidiaries.
Agents
: the collective reference to the Syndication Agent, the Joint Book Runners,
the Lead Arranger and the Administrative Agent, which term shall include, for the purposes of
Section 10 only, the Issuing Lender and Swingline Lender.
Aggregate Exposure
: with respect to any Lender at any time, an amount equal to the
sum of (a) with respect to Term Loans, (i) until the Restatement Date, the aggregate amount of such
Lenders Tranche B Term Commitments at such time and (ii) thereafter, the aggregate then unpaid principal amount of such Lenders Term Loans and (b) the amount of such
2
Lenders Revolving Commitment then in effect or, if the Revolving Commitments have been terminated,
the amount of such Lenders Revolving Extensions of Credit then outstanding.
Aggregate Exposure Percentage
: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lenders Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.
Agreement
: this Amended and Restated Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
Applicable Margin
: for each Type of Loan, the rate per annum set forth under the
relevant column heading below:
|
|
|
|
|
|
|
|
|
|
|
Eurodollar Loans
|
|
Base Rate Loans
|
Revolving Loans
|
|
|
2.500
|
%
|
|
|
1.500
|
%
|
Swingline Loans
|
|
|
N/A
|
|
|
|
1.500
|
%
|
Term Loans (other than Other Term
Loans)
|
|
|
2.250
|
%
|
|
|
1.250
|
%
|
;
provided
, that, on and after the first Adjustment Date (as defined in the Pricing Grid)
after the Closing Date, when no Event of Default has occurred and is then continuing, the
Applicable Margin with respect to Revolving Loans and Swingline Loans will be determined pursuant
to the Pricing Grid.
Applicable Reserve Requirement
: at any time for any Eurodollar Loan, the maximum
rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal,
special, supplemental, emergency or other reserves) are required to be maintained with respect
thereto against Eurocurrency liabilities (as such term is defined in Regulation D) under
regulations issued from time to time by the Board or other applicable banking regulator. Without
limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other
reserves required to be maintained by member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the applicable Eurodollar Rate or any other interest
rate of a Eurodollar Loan is to be determined, or (ii) any category of extensions of credit or
other assets which include Eurodollar Loans. A Eurodollar Loan shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without
benefits of credit for proration, exceptions or offsets that may be available from time to time to
the applicable Lender. The rate of interest on Eurodollar Loans shall be adjusted automatically on
and as of the effective date of any change in the Applicable Reserve Requirement.
Application
: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to issue a Letter of Credit.
Approved Fund
: (a) a CLO and (b) with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and is managed
3
or advised by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
Asset Acquisition
means: (a) an Investment by the Borrower or any of its
Consolidated Subsidiaries in any other Person pursuant to which such Person shall become a
Consolidated Subsidiary of the Borrower or shall be merged into or consolidated with the Borrower
or any of its Consolidated Subsidiaries but only if (x) such Persons primary business would be
permitted under this Agreement if it were a business of the Borrower or any of its Consolidated
Subsidiaries and (y) the financial condition and results of operations of such Person are not
already consolidated with those of the Borrower and its Consolidated Subsidiaries immediately prior
to such Investment, or (b) an acquisition by the Borrower or any of its Consolidated Subsidiaries
of the property and assets of any Person other than the Borrower or any of its Consolidated
Subsidiaries that constitute all or substantially all of a division, operating unit or line of
business of such Person but only (x) if the property and assets so acquired constitute a business
that would be permitted under this Agreement if it were a business of the Borrower or any of its
Consolidated Subsidiaries and (y) the financial condition and results of operations of such Person
are not already consolidated with those of the Borrower and its Consolidated Subsidiaries
immediately prior to such acquisition.
Asset Disposition
means the sale or other disposition by the Borrower or any of its
Consolidated Subsidiaries other than to the Borrower or another Consolidated Subsidiary of the
Borrower of (a) all or substantially all of the Capital Stock owned by the Borrower or any of its
Consolidated Subsidiaries of any Consolidated Subsidiary or any Person that is a Permitted Joint
Venture Investment or (b) all or substantially all of the assets that constitute a division,
operating unit or line of business of the Borrower or any of its Consolidated Subsidiaries.
Asset Sale
: a sale, lease or sub-lease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, transfer or other disposition to, or any exchange of property
with, any Person (other than the Borrower or any of its Subsidiaries), in one transaction or a
series of transactions, of all or any part of the Borrowers or any of its Subsidiaries businesses
or Property (including any equity interests in any Person held by the Borrower or any such
Subsidiary, or any issuance of equity by any Subsidiary of the Borrower), whether now owned or
hereafter acquired, other than (i) inventory or other assets sold, leased, sub-leased (as lessor or
sublessor), sold and leased back, assigned, conveyed, transferred or otherwise disposed of in the
ordinary course of business (excluding any such sales by operations or divisions discontinued or to
be discontinued), including the disposition of obsolete or worn-out assets in the ordinary course,
(ii) arms-length sales, leases or sub leases (as lessor or sublessor), sale and leasebacks,
assignments, conveyances, transfers or other dispositions of Property entered into with (A) Royal
Street in accordance with the Royal Street Agreements or (B) any Person in which a Permitted Joint
Venture Investment has been made or another Investment pursuant to clause (xiv) of the definition
of Permitted Investment has been made and which Person shall have granted a Group Member a sole
first priority Lien on substantially all of the assets of such Person (except (x) as may be limited
by a Requirement of Law or (y) for Other Approved Liens), (iii) a surrender or waiver of contract
rights or settlement, release or surrender of contract, tort or other claims in the ordinary course
of business or a grant of a Lien not prohibited by this Agreement, (iv) a Restricted Payment that
does not violate this Agreement, (v) licenses and sales of intellectual property in the ordinary
course of business, (vi) a Permitted Investment, and (vii) in addition to
4
the foregoing, sales, leases, sub-leases, sale and leasebacks, assignments, conveyances,
transfers or other dispositions of other assets for aggregate consideration of less than
$20,000,000 in the aggregate during any Fiscal Year.
Assignee
: as defined in Section 11.6(b).
Assignment and Assumption
: an Assignment and Assumption, substantially in the form
of Exhibit E or such other form acceptable to the Administrative Agent.
Auction 58
: a public auction for wireless telecommunication licenses held by the
FCC, which auction closed on February 15, 2005.
Auction 58 Acquisition
: the acquisition of wireless telecommunication licenses by
Royal Street in Auction 58.
Auction 66
: a public auction for wireless telecommunications licenses held by the
FCC, which auction closed on September 18, 2006.
Auction 66 Acquisition
: the acquisition of wireless telecommunication licenses by
MetroPCS AWS, LLC in Auction 66.
Authorized Officer
: any individual holding the position of chairman of the board
(if an officer), chief executive officer, president or one of its vice presidents (or the
equivalent thereof), chief financial officer or treasurer of any Group Member. Unless otherwise
specified, all references herein to an Authorized Officer mean an Authorized Officer of the
Borrower.
Available Revolving Commitment
: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lenders Revolving Commitment then in effect
over
(b) such Lenders Revolving Extensions of Credit then outstanding;
provided
that, in calculating
any Lenders Revolving Extensions of Credit for the purpose of determining such Lenders Available
Revolving Commitment pursuant to Section 3.5, the aggregate principal amount of Swingline Loans
then outstanding shall be deemed to be zero.
Bankruptcy Code
: Title 11 of the United States Code entitled Bankruptcy, as now
and hereafter in effect, or any successor statute.
Base Rate
: for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 0.50%. For purposes hereof:
Prime
Rate
shall mean the rate of interest per annum publicly announced from time to time by the
Reference Bank as its prime rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by the Reference Bank in connection
with extensions of credit to debtors). Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
5
Base Rate Loans
: Loans the rate of interest applicable to which is based upon the
Base Rate.
Benefited Lender
: as defined in Section 11.7(a).
Board
: the Board of Governors of the Federal Reserve System of the United States of
America or any successor Governmental Authority.
Borrower
: as defined in the preamble to this Agreement.
Borrower Credit Agreement Obligations
: as defined in the Guarantee and Collateral
Agreement.
Borrower Hedge Agreement Obligations
: as defined in the Guarantee and Collateral
Agreement.
Borrowing Date
: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.
Business Day
: (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Eurodollar
Rate or any Eurodollar Loans, the term
Business Day
shall mean any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.
Capital Expenditures
: for any period, with respect to any Person, the aggregate of
all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
Capital Lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
Capital Lease
: as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.
Capital Lease Obligations
: as to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
Capital Stock
: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
6
membership interests, and any and all warrants, rights or options to purchase or other
arrangements or rights to acquire any of the foregoing.
Cash
: liquid marketable securities, certificates of deposit, money, currency or a
credit balance in any Deposit Account.
Cash Equivalents
means: (a) United States dollars; (b) securities issued or
directly and fully guaranteed or insured by the United States government or any agency or
instrumentality of the United States government (
provided
that the full faith and credit of the
United States is pledged in support of those securities) having maturities of not more than one
year from the date of acquisition; (c) demand deposits, certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of acquisition, bankers acceptances
with maturities not exceeding one year and overnight bank deposits, in each case, with any Lender
or with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a
Thomson Bank Watch Rating of B or better; (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (b) and (c) above entered
into with any financial institution meeting the qualifications specified in clause (c) above; (e)
commercial paper having one of the two highest ratings obtainable from Moodys or S&P and, in each
case, maturing within one year after the date of acquisition; (f) securities issued and fully
guaranteed by any state, commonwealth or territory of the United States, or by any political
subdivision or agency or instrumentality thereof, rated at least A by Moodys or S&P and having
maturities of not more than one year after the date of acquisition; (g) auction rate securities
rated AAA by S&P or Moodys and with reset dates of one year or less from the time of purchase;
and (h) money market funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (a) through (g) of this definition.
Change of Control
: the occurrence of any of the following: (a) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of the
properties or assets of the Borrower and its direct and indirect domestic Subsidiaries taken as a
whole to any person (as that term is used in Section 13(d) of the Securities Exchange Act of
1934, as amended) other than a Permitted Holder; (b) the adoption of a plan relating to the
liquidation or dissolution of the Borrower; (c) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any person (as
defined above) other than a Permitted Holder becomes the beneficial owner, directly or indirectly,
of more than 50% of the voting stock of Holdings, measured by voting power rather than number of
shares; (d) after a Qualified IPO, the first day more than 90 days after such Qualified IPO on
which a majority of the members of the board of directors of Superholdings are not Continuing
Directors; (e) if Holdings ceases to own 100% of the voting stock of the Borrower; or (f) any
change of control as defined in the Senior Note Indenture. For purposes of this Agreement
Permitted Holder
means: (i) any direct or indirect beneficial owner of any Loan Partys
equity interests on the Closing Date; (ii) any controlling stockholder, 80% (or more) owned
subsidiary, or immediate family member (in the case of an individual) of any person referred to in
clause (i) of this definition; or (iii) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or persons beneficially owning an 80% or more
controlling interest of which consist of any one or more persons referred to in
7
clause (i) or (ii) of this definition. For purposes of this Agreement
Continuing
Directors
means: any member of the board of directors of Superholdings who (1) was a member
of such board of directors on the date 90 days after a Qualified IPO, or (2) was nominated for
election or elected to such board of directors with the approval of a majority of the Continuing
Directors who were members of such board of directors at the time of such nomination or election.
CLO
: any entity (whether a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such
Lender.
Closing Date
: November 3, 2006.
Code
: the Internal Revenue Code of 1986, as amended from time to time.
Collateral
: all property of the Group Members, now owned or hereafter acquired,
upon which a Lien is purported to be created by any Security Document, and the Capital Stock of the
Borrower owned by Holdings.
Commitment
: as to any Lender, the sum of the Tranche B Term Commitment and the
Revolving Commitment of such Lender.
Commitment Fee Rate
: 0.50% per annum;
provided that
, on and after the first
Adjustment Date occurring after (but not on) the completion of two full fiscal quarters of the
Borrower after the Closing Date, when no Event of Default has occurred and is then continuing, the
Commitment Fee Rate will be determined pursuant to the Pricing Grid.
Compliance Certificate
: a certificate duly executed by a Financial Officer
substantially in the form of Exhibit B or such other form acceptable to the Administrative Agent.
Conduit Lender
: any special purpose entity organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender and designated by such
Lender in a written instrument, subject to the consent of the Administrative Agent and the Borrower
(which consent shall not be unreasonably withheld);
provided
, that the designation by any Lender of
a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender; and
provided
,
further
, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 4.9, 4.10, 4.11 or 11.5 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b)
be deemed to have any Commitment.
Confidential Information Memorandum
: the Confidential Information Memorandum dated
October 2006 and made available to the Lenders.
Consolidated EBITDA
: for any period, the Consolidated Net Income for such period
plus
, without duplication, (i) an amount equal to any extraordinary loss plus any net loss
8
(without duplication) realized by the Borrower or any of its Consolidated Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted in computing such
Consolidated Net Income;
plus
(ii) provision for taxes based on income or profits of the Borrower
and its Consolidated Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income;
plus
(iii) the Consolidated Interest Expense
for such period, to the extent that such Consolidated Interest Expense was deducted in computing
such Consolidated Net Income;
plus
(iv) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period)
and other non-cash expenses or charges (excluding any non-cash expenses to the extent that such
expenses represent an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of the Borrower and its Consolidated
Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income;
plus
(v) any after-tax
extraordinary, nonrecurring (to include customary fees and expenses related to the incurrence of
Indebtedness or the issuance of any Capital Stock) or unusual losses, expenses or charges,
provided
that with respect to each item of loss, expense or charge the Borrower shall have
delivered to the Administrative Agent an officers certificate from a Financial Officer of the
Borrower specifying and quantifying such loss, expense or charge and stating that such item of
loss, expense or charge is after-tax extraordinary, nonrecurring or unusual;
minus
(vi) interest
income to the extent included in Consolidated Net Income for such period;
minus
(vii) any after-tax
extraordinary, nonrecurring or unusual gains or income (including in connection with an Asset
Sale); and
minus
(viii) non-cash items increasing such Consolidated Net Income for such period,
other than the accrual of revenue in the ordinary course of business, in each case, on a
consolidated basis and determined in accordance with GAAP.
Consolidated Fixed Charge Coverage Ratio
: as of any date of determination, the
ratio of (a) Consolidated EBITDA on a Pro Forma Basis for the four most recent full Fiscal Quarters
for which internal financial statements are available prior to such date of determination, minus
the aggregate amount actually paid by the Borrower and its Subsidiaries during such period on
account of Capital Expenditures other than New Market Capital Expenditures (excluding (i) the
principal amount of Indebtedness incurred during such period to finance Capital Expenditures other
than New Market Capital Expenditures, but including (ii) any repayments of any Indebtedness
incurred during such period or any prior period to finance Capital Expenditures other than New
Market Capital Expenditures) to (b) Consolidated Fixed Charges for the four most recent full Fiscal
Quarters for which internal financial statements are available prior to such date of determination.
Consolidated Fixed Charges
: for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period; (b) Consolidated Lease Expense for such period; (c)
scheduled payments made during such period on account of principal of Indebtedness of the Borrower
or any of its Subsidiaries (including scheduled principal payments in respect of the Term Loans);
and (d) income taxes paid in cash during such period.
Consolidated Interest Expense
: for any period, the sum, without duplication, of (i)
the consolidated interest expense of the Borrower and its Consolidated Subsidiaries for such
period, whether paid or accrued, including, without limitation, amortization of debt issuance
9
costs and original issue discount, non-cash interest payments, legal fees and expenses that
would be included as an interest expense of the Borrower in accordance with GAAP, the interest
component of all payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers acceptance financings,
and net of payments (if any) pursuant to Hedge Agreements in respect of interest rates (but
excluding any and all fees, expenses and prepayment premiums in connection with (x) the
Refinancing, (y) the issuance of the Senior Notes, and (z) this Agreement and the other
Transactions contemplated hereby, to the extent such amounts are due and payable on or before the
Closing Date);
plus
(ii) the consolidated interest expense of the Borrower and its Consolidated
Subsidiaries that was capitalized during such period;
plus
(iii) any interest expense on that
portion of Indebtedness of another Person that is guaranteed by the Borrower or one of its
Consolidated Subsidiaries or secured by a Lien on assets of the Borrower or one of its Consolidated
Subsidiaries, regardless of whether such guarantee or Lien is called upon;
plus
(iv) the product of
(a) all dividend payments on any series of preferred stock of the Borrower or any of its
Consolidated Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
Consolidated Lease Expense
: for any period, the aggregate amount of rentals payable
by the Borrower and its Consolidated Subsidiaries for such period with respect to leases of real
and personal property, determined on a consolidated basis in accordance with GAAP,
provided
that
payments in respect of Capital Lease Obligations shall not constitute Consolidated Lease Expense.
Consolidated Net Income
: for any period, the Net Income of Superholdings and its
Consolidated Subsidiaries for such period, on a consolidated basis, determined in accordance with
GAAP;
provided
that (i) beginning with the Fiscal Quarter ending December 31, 2006, the Net Income
(or loss) of Superholdings and its Consolidated Subsidiaries (other than Borrower and its
Consolidated Subsidiaries) during such period will be excluded, (ii) the Net Income (or loss) of
any Person (other than the Borrower or any of its Consolidated Subsidiaries) in which any other
Person (other than the Borrower or any of its Consolidated Subsidiaries) has a joint interest will
be excluded, except to the extent of the amount of dividends or other distributions actually paid
to the Borrower or any of its Consolidated Subsidiaries by such Person during such period and (iii)
the cumulative effect of a change in accounting principles will be excluded.
Consolidated Senior Secured Indebtedness
: with respect to any specified Person as
of any date of determination, the sum, without duplication, of:
(a) the total amount of Secured Indebtedness of such Person and its Subsidiaries;
plus
(b) the total amount of Secured Indebtedness of any other Person, to the extent that such
Indebtedness has been guaranteed by the referenced Person or one or more of its Subsidiaries;
10
in each case, on a consolidated basis and determined in accordance with GAAP.
Consolidated Senior Secured Leverage Ratio
: as of any date of determination, the
ratio of (a) Consolidated Senior Secured Indebtedness of the Borrower as of such date to (b)
Consolidated EBITDA determined on a Pro Forma Basis for the four most recent full Fiscal Quarters
for which internal financial statements are available prior to such date of determination.
Consolidated Subsidiaries
: with respect to any Person, each other Person (whether
now existing or hereafter created or acquired) the financial statements of which shall be (or
should have been) consolidated with the financial statements of such first Person in accordance
with GAAP.
Consolidated Total Assets
: with respect to any Person, at any date of
determination, the total assets of such Person as set forth on the most recent balance sheet of
such Person prepared in accordance with GAAP.
Consolidated Total Debt
: at any date, the aggregate principal amount of all
Indebtedness (other than Indebtedness consisting of surety, construction, performance and other
similar bonds or letters of credit that would not appear as indebtedness on a consolidated balance
sheet prepared in accordance with GAAP) of the Borrower and its Consolidated Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
Consolidated Total Leverage Ratio
: at any date of determination, the ratio of (a)
Consolidated Total Debt of the Borrower as of such date to (b) the Consolidated EBITDA for the four
most recent full Fiscal Quarters for which internal financial statements are available prior to
such date of determination, determined on a Pro Forma Basis.
Continuing Lenders
: each Original Term Lender of Original Term Loans that has
delivered a signature page or an Addendum hereto indicating its agreement to continue as a Tranche
B Term Lender under this Agreement.
Default
: any of the events specified in Section 9, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.
Deposit Account
: a demand, time, savings, passbook or like account with a bank,
savings and loan association, credit union or like organization, other than an account evidenced by
a negotiable certificate of deposit.
Disqualified Stock
: any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) or upon the happening of any
event, matures or is mandatorily redeemable for any consideration other than other Capital Stock
(which would not constitute Disqualified Stock), pursuant to a sinking fund obligation or
otherwise, or is convertible or exchangeable for Indebtedness or redeemable for any consideration
other than other Capital Stock (which would not constitute Disqualified Stock) at the option of the
holder thereof, in whole or in part, on or prior to the date that is one year after the Term Loan
Maturity Date.
Documentation Agent
: as defined in the preamble to this Agreement.
11
Dollars
and
$
: dollars in lawful currency of the United States.
Eligible Assignee
: (i) any Lender, any Affiliate of any Lender and any Approved
Fund, and (ii) any commercial bank, insurance company, investment or mutual fund or other entity,
that is an accredited investor (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans.
environment
: ambient air, surface water and groundwater (including potable water,
navigable water and wetlands), the land surface or subsurface strata, the workplace or as otherwise
defined in any Environmental Law.
Environmental Laws
: any and all applicable Governmental Requirements pertaining in
any way to health, safety, the environment or the preservation or reclamation of natural resources,
in effect at any time, including without limitation, the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (
CERCLA
),
as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health
Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976 (
RCRA
), as
amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials
Transportation Act, as amended, and other environmental conservation or protection Governmental
Requirements.
ERISA
: the Employee Retirement Income Security Act of 1974, as amended, and any
successor statutes, and all regulations and guidance promulgated thereunder.
ERISA Affiliate
: each trade or business (whether or not incorporated) which
together with Borrower or any of its Subsidiaries would (at any relevant time) be deemed to be a
single employer within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or
(o) of section 414 of the Code.
ERISA Event
: (a) a Reportable Event, (b) the withdrawal of the Borrower, a
Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a substantial
employer as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to
terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA,
(d) the institution of proceedings to terminate a Plan by the PBGC, (e) receipt of a notice of
withdrawal liability pursuant to Section 4202 of ERISA or (f) any other event or condition which
might reasonably be expected to constitute grounds under section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
Eurodollar Loans
: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.
Eurodollar Rate
: with respect to each day during an Interest Period for a
Eurodollar Loan, the rate per annum obtained by dividing (and rounding up to the next whole
multiple of one sixteenth of one percent) (i) the rate per annum determined on the basis of the
rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period;
provided
that in the event
12
that such rate does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the
Eurodollar Rate
shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be reasonably selected by the
Administrative Agent or, in the absence of such availability, by reference to the rate at which the
Reference Bank is offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and exchange operations are then being conducted for delivery on
the first day of such Interest Period for the number of days comprised therein by (ii) an amount
equal to (a) one
minus
(b) the Applicable Reserve Requirement.
Eurodollar Tranche
: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
Event of Default
: each of the conditions or events set forth in Section 9.
Excepted Liens
: (a) Liens for Taxes, assessments or other governmental charges,
claims or levies which are not delinquent or which are being contested in good faith by appropriate
action and for which adequate reserves have been maintained in accordance with GAAP; (b) Liens in
connection with workers compensation, unemployment insurance or other social security, old age
pension or public liability obligations which are not delinquent or which are being contested in
good faith by appropriate action and for which adequate reserves have been maintained in accordance
with GAAP; (c) landlords liens, operators, vendors, carriers, warehousemens, repairmens,
mechanics, suppliers, workers, materialmens, construction or other similar Liens arising by
operation of law or otherwise in the ordinary course of business; (d) bankers liens, rights of
set-off or similar rights and remedies and burdening only deposit accounts or other funds
maintained with a creditor depository institution,
provided
that no such deposit account is a
dedicated cash collateral account or is subject to restrictions against access by the depositor in
excess of those set forth by regulations promulgated by the Board and no such deposit account is
intended by the Borrower or any of its Subsidiaries to provide collateral to the depository
institution; (e) judgment and attachment Liens not giving rise to an Event of Default,
provided
that any appropriate legal proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which such proceeding may be
initiated shall not have expired and no action to enforce such Lien has been commenced and any
Liens that are required to protect or enforce any rights in any administrative, arbitration or
other court proceedings in the ordinary course of business; (f) easements, restrictions,
servitudes, permits, conditions, covenants, exceptions and reservations that could not in the
aggregate reasonably be expected to result in a Material Adverse Effect; (g) Liens arising from
Uniform Commercial Code financing statement filings regarding operating leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business covering only the Property
under lease (plus improvements and accessions to such Property and proceeds or distributions of
such Property and improvements and accessions thereto); (h) Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by Section 8.2(m), covering only the assets (including the
proceeds thereof, accessions thereto and upgrades thereof) acquired with or financed by such
Indebtedness; (i) Liens on Property (including Capital Stock) existing at the time of acquisition
of the Property by the Borrower or any Subsidiary of the Borrower, covering only the assets
(including the proceeds thereof, accessions thereto and
13
upgrades thereof) so acquired;
provided
that such Liens were in existence prior to such
acquisition and not incurred in contemplation of such acquisition; (j) Liens on Property of a
Person existing at the time such Person is merged with or into or consolidated with the Borrower or
any Subsidiary of the Borrower;
provided
that such Liens were in existence prior to such merger or
consolidation and not incurred in contemplation of such merger or consolidation and do not extend
to any assets other than those of the Person merged into or consolidated with the Borrower or such
Subsidiary; (k) Liens contained in purchase and sale agreements limiting the transfer of assets
pending the closing of transactions (not prohibited by this Agreement) contemplated by such
purchase and sale agreements; (l) Liens existing on the Closing Date and set forth on Schedule
1.1A; (m) second priority Liens in favor of lenders of Indebtedness permitted to be incurred
pursuant to Section 8.2(n) and subject to the intercreditor agreement required thereby; (n) Liens
to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Agreement;
provided, however
, that: (i) the new Lien shall be limited to all or part of the same Property and
assets that secured or, under the written agreements pursuant to which the original Lien arose,
could secure the original Lien that secured the Indebtedness being refinanced (plus improvements
and accessions to such property and assets and proceeds or distributions of such property and
assets and improvements and accessions thereto); and (ii) the Indebtedness secured by the new Lien
is not increased to any amount greater than the sum of (x) the outstanding principal amount of
Indebtedness being refinanced, or, if greater, committed amount of the Indebtedness being
refinanced (so long as such greater principal amount is permitted by the Agreement) and (y) an
amount necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge; (o) Liens that may be deemed to exist
by virtue of contractual provisions that restrict the ability of the Borrower or any of its
Subsidiaries from granting or permitting to exist Liens on their respective assets to the extent
such restrictions are permitted by Section 8.12; (p) Liens in favor of the trustee under the Senior
Note Indenture as provided for in the Senior Note Indenture on money or property held or collected
by the trustee in its capacity as trustee, so long as the payment of such money or property to such
trustee would be permitted by this Agreement; (q) Liens on Cash or Cash Equivalents securing (i)
workers compensation claims, self-insurance obligations, unemployment insurance or other social
security, old age pension, bankers acceptances, performance bonds, completion bonds, bid bonds,
appeal bonds, surety bonds, public liability obligations, or other similar bonds or obligations, or
securing any guarantees or letters of credit functioning as or supporting any of the foregoing, in
each case incurred in the ordinary course of business or (ii) letters of credit permitted pursuant
to Section 8.2(h); (r) Liens with respect to obligations that do not exceed $5,000,000 at any one
time outstanding; (s) Liens in favor of the Borrower or any Subsidiary Guarantor; (t) Liens
securing Indebtedness in connection with any Hedge Agreement entered into by the Borrower or any of
its Subsidiaries as permitted by this Agreement; and (u) Liens on Cash relating to escrows
established for an adjustment in purchase price or liabilities or indemnities relating to Asset
Sales.
Excluded Indebtedness
: all Indebtedness incurred pursuant to Section 8.2.
Existing Letters of Credit
: means each letter of credit issued under the Original
Credit Agreement that is outstanding on the Restatement Date. The Existing Letters of Credit are
listed in Schedule 3.7.
14
Facility
: each of (a) the Tranche B Term Commitments and the Tranche B Term Loans
made thereunder, (b) the Revolving Commitments and the extensions of credit made thereunder (the
Revolving Facility
), and (c) any series of Incremental Term Loans made pursuant to
Section 2.4, if any.
Fair Market Value
: the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or necessity of either party,
determined in good faith by the board of directors of the Borrower (unless otherwise provided
herein).
FCC
: the United States Federal Communications Commission and any successor agency
which is responsible for regulating the United States telecommunications industry.
Federal Funds Effective Rate
: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Reference Bank from three federal funds
brokers of recognized standing selected by it.
Final Order
: any action or decision of a Governmental Authority (including, without
limitation, the FCC) as to which (i) no request for a stay or similar request is pending, no stay
is in effect, the action or decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be designated by statute or regulation
has passed without the filing of any such request, (ii) no petition for rehearing or
reconsideration or application for review is pending and the time for the filing of any such
petition or application has passed, (iii) such Governmental Authority does not have the action or
decision under reconsideration on its own motion and the time within which it may effect such
reconsideration has passed and (iv) no appeal is pending including other administrative or judicial
review, or in effect and any deadline for filing any such appeal that may be designated by statute
or rule has passed.
Financial Officer
: for any Person, the chief financial officer, principal
accounting officer, treasurer or controller of such Person. Unless otherwise specified, all
references herein to a Financial Officer means a Financial Officer of the Borrower.
Fiscal Quarter
: a fiscal quarter of any Fiscal Year.
Fiscal Year
: the fiscal year of Superholdings and its Subsidiaries ending on
December 31 of each calendar year.
Funding Office
: the office of the Administrative Agent specified in Section 11.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.
15
GAAP
: subject to the limitations on the application thereof set forth in Section
1.2(f), United States generally accepted accounting principles in effect as of the date of
determination thereof.
Governmental Authority
: any federal, state, municipal, national or other
government, governmental department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof, including, but not limited to, the FCC, or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of the
United States, the United States, or a foreign entity or government.
Governmental Authorization
: any permit, license, authorization, plan, directive,
consent, permission, consent order or consent decree of or from any Governmental Authority.
Governmental Requirement
: any applicable law, statute, code, ordinance, order,
determination, rule, regulation, common law, judgment, decree, injunction, franchise, Governmental
Authorization, certificate, or other directive or requirement, whether now or hereinafter in
effect, including, without limitation, Environmental Laws, energy regulations and occupational,
safety and health standards or controls, of any Governmental Authority.
Group Members
: the collective reference to the Borrower and the Subsidiary
Guarantors.
Guarantee and Collateral Agreement
: the Guarantee and Collateral Agreement executed
and delivered by each Loan Party dated as of the Closing Date.
Guarantee Obligation
: as to any Person (the
guaranteeing person
), any
obligation of (a) the guaranteeing person or (b) another Person (including any bank under any
letter of credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
primary
obligations
) of any other third Person (the
primary obligor
) in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof;
provided
,
however
, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such
16
primary obligation and the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee Obligation shall be such
guaranteeing persons maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.
Guarantors
: the collective reference to Superholdings, Holdings, the Subsidiary
Guarantors, any other Person required to become a Guarantor pursuant to Section 8.17, and any other
Subsidiary of Superholdings that Superholdings, in its sole discretion, causes to execute the
Guarantee and Collateral Agreement as a guarantor thereunder.
Hazardous Materials
: any chemical, material waste or substance, exposure to which
is, or which is otherwise, prohibited, limited or regulated by any Governmental Authority or
Environmental Law, or which may or could pose a hazard to the health and safety of the owners,
occupants or any Persons in the vicinity of any Property or to the indoor or outdoor environment.
Hazardous Materials Activity
: any past, current, proposed or threatened activity,
event or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.
Hedge Agreement
: any agreement or arrangement with respect to any swap, cap,
collar, forward, future or derivative transaction or option or similar agreement, whether exchange
traded, over-the-counter or otherwise, involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions.
Holdings
: MetroPCS V, Inc., a Delaware corporation that was renamed MetroPCS,
Inc. on the Closing Date.
Incremental Commitment
: a new or additional commitment permitted by Section 2.4.
Incremental Commitment Agreement
: an agreement delivered by an Incremental Lender,
in form and substance reasonably satisfactory to the Administrative Agent and accepted by the Loan
Parties, by which an Incremental Lender (approved by the Administrative Agent if such Incremental
Lender is not already a Revolving Lender and is to be a Revolving Lender after the effective date
of such Incremental Commitment Agreement) confirms its Incremental Commitment.
Incremental Lender
: a Lender, Approved Fund or other Person that delivers an
Incremental Commitment.
Incremental Revolving Loan Commitments
: the Revolving Loan Commitments made pursuant
to Section 2.4.
17
Incremental Revolving Loans
: the Revolving Loans made pursuant to the Incremental
Revolving Loan Commitments.
Incremental Term Loan
: the Term Loans made by one or more Incremental Lender
pursuant to Section 2.4, including, without limitation, Other Term Loans.
Incremental Term Percentage
: as to any Lender at any time, the percentage which
such Lenders Incremental Commitment then constitutes of the aggregate Incremental Commitments (or,
at any time after the funding of the Incremental Term Loans, the percentage which the aggregate
principal amount of such Lenders Incremental Term Loans then outstanding constitutes of the
aggregate principal amount of the Incremental Term Loans then outstanding).
Indebtedness
: with respect to any specified Person, without duplication, any
indebtedness of such Person, regardless of whether contingent: (a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof); (c) in respect of bankers acceptances; (d)
representing Capital Lease Obligations; (e) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months after such property is acquired
or such services are completed, except any such balance that constitutes an accrued expense or a
trade payable; or (f) in respect of Hedge Agreements permitted under this Agreement; in each case,
if and to the extent any of the preceding items (other than letters of credit and indebtedness in
respect of Hedge Agreements permitted under this Agreement) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term
Indebtedness includes (x) all indebtedness of any other Person, of the types described above in
clauses (a) through (f), secured by a Lien on any asset of the specified Person (even if such
indebtedness is not assumed by the specified Person) but limited to the lesser of (i) the Fair
Market Value of such assets at the date of determination and (ii) the amount of Indebtedness of the
other Person so secured) and (b) to the extent not otherwise included, the guarantee by the
specified Person of any indebtedness of any other Person, of the types described above in clauses
(a) through (f). Indebtedness shall also include any Disqualified Stock of the Borrower and any
preferred stock of any Subsidiary Guarantor;
provided
that the principal amount of any such
Indebtedness will be deemed to be equal to the liquidation preference of such Disqualified Stock or
preferred stock, and the maturity of any such Indebtedness will be deemed to be any mandatory
redemption date (including any such mandatory redemption at the option of the holder) of such
Disqualified Stock or preferred stock. Notwithstanding the foregoing, the following shall not
constitute Indebtedness: (1) accrued expenses and trade accounts payable arising in the ordinary
course of business; (2) any indebtedness that has been defeased in accordance with GAAP or defeased
pursuant to the deposit of Cash (in an amount sufficient to satisfy all obligations relating
thereto at maturity or redemption, as applicable, including all payments of interest and premium,
if any) in a trust or account created or pledged for the sole benefit of the holders of such
indebtedness, and subject to no other Liens, and in accordance with the other applicable terms of
the instrument governing such indebtedness; (3) any obligation arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business;
provided, however,
that such obligation is extinguished
within five Business Days of its incurrence; and (4) any obligation arising from any agreement
providing for
18
indemnities, guarantees, purchase price adjustments, holdbacks, contingency payment
obligations based on the performance of the acquired or disposed assets or similar obligations
(other than guarantees of Indebtedness) incurred by any Person in connection with the acquisition
or disposition of assets. For purposes of clause (f) above and clause (n) of Section 9.1, the
principal amount of Indebtedness in respect of Hedge Agreements shall equal the amount that would
be payable (giving effect to netting) at such time if such Hedge Agreement were terminated.
Indemnitee
: as defined in Section 11.5.
Intellectual Property
: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
Interest Payment Date
: (a) as to any Base Rate Loan, the last day of each March,
June, September and December to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof, after the first day
of such Interest Period and the last day of such Interest Period, (d) as to any Loan (other than
any Swingline Loan), the date of any repayment or prepayment made in respect thereof (except for
prepayments of Original Term Loans made by Continuing Lenders deemed prepaid pursuant to the
Refinancing) and (e) as to any Swingline Loan, the day that such Loan is required to be repaid.
Interest Period
: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent no later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided
that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period (A) for Revolving Loans that would
extend beyond the Revolving Termination Date, or (B) for Tranche B
19
Term Loans or any Incremental Term Loans, that would extend beyond the date final
payment is due on the Tranche B Term Loans or any Incremental Term Loans, as the case may
be;
(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Eurodollar Loan.
Investment
: with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other
obligations), advances or capital contributions (excluding commission, entertainment, travel,
drawing accounts and similar advances to officers and employees made in the ordinary course of
business and excluding the purchase of Property or accounts receivables created or acquired in the
ordinary course of business), purchases or other acquisitions for consideration of Indebtedness,
Capital Stock or other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Borrower or any of its
Subsidiaries sells or otherwise disposes of any Capital Stock of any Subsidiary of the Borrower
such that, after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Borrower, the Borrower will be deemed to have made an Investment on the date of
any such sale or disposition equal to the Fair Market Value of the Borrowers Investments in such
Subsidiary that were not sold or disposed of in an amount determined as provided in the final
paragraph of Section 8.6(b) hereof. The acquisition by the Borrower or any of its Subsidiaries of
a Person that holds an Investment in a third Person will be deemed to be an Investment by the
Borrower or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount determined as provided in
the final paragraph of Section 8.6(b) hereof. The amount of any Investment shall be determined at
the time such Investment is made, without giving effect to subsequent changes in value.
ISP
: the International Standby Practices (ISP98), a publication by the International
Chamber of Commerce.
Issuing Lender
: as defined in the preamble of this Agreement.
Joint Venture
: a joint venture, partnership or other similar arrangement, whether
in corporate, partnership or other legal form;
provided
, in no event shall any Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a party.
L/C Commitment
: $30,000,000.
L/C Fee Payment Date
: the last day of each March, June, September and December and
the Revolving Termination Date.
20
L/C Obligations
: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.11.
For purposes of computing the amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.3. For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be
drawn.
L/C Participants
: the collective reference to all the Revolving Lenders other than
the Issuing Lender.
Lead Arranger
: as defined in the preamble to this Agreement.
Lenders
: as defined in the preamble to this Agreement;
provided
, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender.
Letters of Credit
: as defined in Section 3.7(a).
Lien
: any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on the common law,
statute or contract, and whether such obligation or claim is fixed or contingent, and including but
not limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its Subsidiaries shall be deemed to
be the owner of any Property which it has acquired or holds subject to a conditional sale
agreement, or leases under a financing lease or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person in a transaction intended to create a
financing.
Loan
: any loan made by any Lender pursuant to this Agreement.
Loan Documents
: this Agreement, the Security Documents, the Notes, each Incremental
Commitment Agreement, the Reaffirmation Agreement and any fee letters entered into with any Agent,
each as amended, supplemented or modified from time to time.
Loan Parties
: the collective reference to Superholdings, Holdings and the Group
Members.
Majority Facility Lenders
: with respect to any Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving
Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of
the Total Revolving Commitments).
21
Material Adverse Effect
: a material adverse effect on and/or material adverse
developments with respect to (i) the business, assets, property, financial condition, or results of
operations of Borrower and its Subsidiaries taken as a whole, (ii) the validity or enforceability
of this Agreement or any of the other Loan Documents or the rights or remedies of the Agents or the
Lenders hereunder or thereunder, or (iii) the validity, perfection or priority of the
Administrative Agents Liens on the Collateral.
Material Contractual Obligation
: as to any Person, any provision of any security
issued by such Person or of any material agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its Property is bound, and, in any event with respect to
any Group Member, the Royal Street Agreements.
Moodys
: Moodys Investor Services, Inc.
Mortgaged Properties
: the fee interest in any real property acquired by any of the
Group Members after the Closing Date, as to which the Administrative Agent for the benefit of the
Secured Parties shall, pursuant to Section 7.10(b), be granted a Lien pursuant to the Mortgages.
Mortgages
: each of the mortgages and deeds of trust made by any Group Member in
favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the
law of the jurisdiction in which such mortgage or deed of trust is to be recorded).
Multiemployer Plan
: any employee pension benefit plan, as described in Section 3(2)
of ERISA which is a multiemployer plan, as defined in Section 4001(a)(3) of ERISA to which the
Borrower, a Subsidiary of the Borrower or an ERISA Affiliate maintains, administers, makes or is
obligated to make contributions or at any time during the six consecutive year period ending on the
date hereof maintained, administered, made or was obligated to make contributions.
NAIC
: The National Association of Insurance Commissioners, and any successor
thereto.
Net Cash Proceeds
: (a) with respect to any Asset Sale or Recovery Event, an amount
equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so received) received
by the Borrower or any of its Subsidiaries from such Asset Sale or Recovery Event, minus (ii) any
bona fide direct costs incurred in connection with such Asset Sale or Recovery Event, including (A)
income, sales, gains, transfer or other Taxes payable by the seller as a result of any gain
recognized in connection with such Asset Sale or Recovery Event, (B) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the
Term Loans) that is secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale or Recovery Event, (C) any amounts to
be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in
either case for adjustment in respect of the sale price of such properties or assets or for
liabilities associated with such Asset Sale or Recovery Event
22
and retained by the Borrower or any of its Subsidiaries until such time as such reserve is
reversed or such escrow arrangement is terminated, in which case Net Cash Proceeds shall include
the amount of the reserve so reversed or the amount returned to the Borrower or its Subsidiaries
from such escrow arrangement, as the case may be, and (D) all legal, accounting and investment
banking fees, sales commissions, employee severance costs, and any relocation expenses incurred as
a result of the Asset Sale or Recovery Event, and (b) with respect to any issuance or sale of
Capital Stock or issuance or incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys fees, investment banking fees, accountants fees, other
professional fees, underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
Net Income
: with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
accretion or dividends, excluding, however, (i) any gain or loss, together with any related
provision for taxes on such gain or loss, realized in connection with (a) any Asset Sale or (b) the
disposition of any securities by such Person or any of its Consolidated Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Consolidated Subsidiaries; and (ii)
any extraordinary gain or loss, together with any related provision for taxes on such extraordinary
gain or loss.
New Market Capital Expenditures
: any Capital Expenditures made by the Borrower or
any of its Subsidiaries in connection with construction, launch and operations in any New Markets.
New Market Losses
: for any period, to the extent such losses were deducted in
computing such Consolidated Net Income during the applicable period, an amount equal to any
extraordinary loss plus any net loss (without duplication) realized by the Borrower or any of its
Consolidated Subsidiaries incurred in connection with construction, launch and operations in any
New Market for such period, so long as such net losses are incurred on or prior to the date that is
twelve full calendar months after the initial commencement of commercial operations in the
applicable New Market.
New Market Losses Cap
: $100,000,000, or, if a Qualified IPO has occurred,
$125,000,000.
New Markets
: the collective reference to any wireless telephone markets other than
the metropolitan areas of Atlanta, Georgia; Miami, Florida; Sacramento, California; and San
Francisco, California.
Non-Excluded Taxes
: as defined in Section 4.10(a).
Nonrecourse Lien
: any Lien (other than Liens created in connection with or in
contemplation of acquiring such Property) which limits the holder of such Lien to recourse only
against the specific Property securing such Lien and bars the holder of such Lien from action
against the other assets of the grantor or its successors or assigns.
Non-Renewed Tranche B Term Loan
: as defined in Section 2.2(b).
23
Non-U.S. Lender
: as defined in Section 4.10(d).
Notes
: the collective reference to any promissory note evidencing Loans.
Obligations
: the collective reference to the unpaid principal of and interest on
the Loans and Reimbursement Obligations and all other obligations and liabilities of the Borrower
(including, without limitation, interest accruing at the then applicable rate provided hereunder
after the maturity of the Loans and Reimbursement Obligations and interest accruing at the then
applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding) to any Agent or any
Lender (or former Agent or Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, or the other Loan Documents or any Letter of Credit, or any other document
made, delivered or given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Agents or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).
OID
: as defined in Section 2.4(a).
Original Credit Agreement
: as defined in the recitals hereto.
Original Term Lenders
: as defined in the recitals hereto.
Original Term Loans
: as defined in the recitals hereto.
Other Approved Liens
: (a) Liens which would be Excepted Liens if incurred by the
Borrower or any of its Subsidiaries, (b) purchase money Liens which secure indebtedness related to
the assets to which such purchase money Lien attaches, (c) Liens, deposits or pledges made to
secure statutory obligations, surety or appeal bonds, or bonds for the release of attachments or
for stay of execution, or to secure the performance of bids, tenders, contracts (other than for the
payment of borrowed money), leases or for purposes of like general nature in the ordinary course of
business, (d) Liens existing on any specific fixed asset prior to the acquisition thereof and not
created in contemplation of such acquisition, and (e) such other Liens which would not materially
adversely affect the first priority Liens granted to a Loan Party or as the Administrative Agent
shall consent to in writing.
Other Taxes
: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
Other Term Loans
: as defined in Section 2.4(a).
24
Parent
: any corporation that directly or indirectly is the beneficial owner of at
least 50% of the voting stock of the Borrower, measured by voting power rather than number of
shares.
Participant
: as defined in Section 11.6(c).
PBGC
: the Pension Benefit Guaranty Corporation or any successor.
Permitted Acquisition
: (a) the acquisition by the Borrower or any of its Wholly
Owned Subsidiaries of all of the Capital Stock of Royal Street, (b) the Auction 66 Acquisition, (c)
the acquisition by the Borrower or any of its Wholly Owned Subsidiaries of all of the Capital Stock
of any Person in which a Permitted Joint Venture Investment has been made, so long as such
acquisition is permitted under clause (x) of the definition of Permitted Investment, or complies
with the provisions of clause (f) below, (d) the acquisition by the Borrower or any of its Wholly
Owned Subsidiaries of all of the Capital Stock of any Person acquired in an Investment permitted
under clause (xiv) of the definition of Permitted Investments, so long as such acquisition is
permitted under clause (xiv) of the definition of Permitted Investments, or complies with the
provisions of clause (f) below, (e) swap of wireless spectrum by the Borrower or any of its
Subsidiaries with a Person in which the Cash portion of the consideration for such swap is less
than 50% of the Fair Market Value of the wireless spectrum being swapped by the Borrower or any of
its Subsidiaries, and (f) any acquisition by the Borrower or any of its Subsidiaries, whether by
purchase, merger or otherwise, of wireless spectrum or all or substantially all of the assets of,
all of the Capital Stock of, or more than 50% of the Capital Stock of and the ability to direct,
directly or indirectly, the management and/or policies of, or a business line or unit or a division
of, any Person if, in the case of this clause (f):
(i) both before and after giving effect thereto, no Default or Event of Default has
occurred and is continuing, and the Administrative Agent shall have received a certificate
to such effect given on behalf of the Borrower by an Authorized Officer;
(ii) such acquisition is made in accordance with all applicable Requirements of Law and
Material Contractual Obligations; and all material consents and approvals required by
applicable Requirement of Law and Material Contractual Obligations have been obtained;
(iii) in case of an acquisition of Capital Stock of any Person, such Person becomes a
Subsidiary of the Borrower as part of the acquisition, and becomes a Subsidiary Guarantor
hereunder; and
(iv) the board of directors or equivalent authority of the Person whose assets or
Capital Stock are being acquired has approved the transaction.
provided
, that:
(i) with respect to any Permitted Acquisition or series of related Permitted
Acquisitions involving aggregate consideration in excess of $10,000,000, the Borrower
delivers to the Administrative Agent a resolution of the Borrowers or the applicable
Subsidiary Guarantors board of directors (or similar governing body) set forth
25
in an officers certificate certifying that such Permitted Acquisition has been
approved by the Borrowers or the applicable Subsidiary Guarantors board of directors (or
similar governing body); and
(ii) with respect to any Permitted Acquisition or series of related Permitted
Acquisitions involving aggregate consideration in excess of $50,000,000, the approval of
the board of directors (or similar governing body) required by clause (i) above must be
based on an opinion or appraisal from a financial point of view issued by an accounting,
appraisal or investment banking firm of recognized standing.
Permitted Investments
means:
(i) any Investment in the Borrower or any Subsidiary Guarantor;
(ii) any Investment in Cash or Cash Equivalents;
(iii) any Investment by the Borrower or any Subsidiary Guarantor in a Person, if as a
result of such Investment: (a) such Person becomes a Subsidiary Guarantor; or (b) such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, a Subsidiary Guarantor;
(iv) any Investment consisting of assets useful in the business of the Borrower and its
Subsidiaries as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 8.5;
(v) any Investments received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business of any Group
Member, including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer or upon enforcement of any Lien
in favor of the Borrower or any Subsidiary; or (B) litigation, arbitration or other disputes
with Persons who are not Affiliates;
(vi) Investments related to Hedge Agreements permitted by Section 8.10;
(vii) loans or advances to employees or directors made in the ordinary course of
business of any Group Member in an aggregate principal amount not to exceed $5,000,000 at
any one time outstanding;
(viii) advances and prepayments for asset purchases in the ordinary course of business
in a line of business permitted by Section 8.19 of any Group Member;
(ix) Investments existing on the Closing Date;
(x) Permitted Joint Venture Investments in an aggregate amount that, when taken
together with (A) all other Permitted Joint Venture Investments made pursuant to this clause
(x) and (B) all Permitted Acquisitions made pursuant to clause (c)
26
of the definition of Permitted Acquisition, do not exceed 10% of the Consolidated Total
Assets of the Borrower and its Consolidated Subsidiaries on the date each such Investment is
made;
(xi) accounts receivable arising in the ordinary course of business;
(xii) Investments in Royal Street represented by the Royal Street Loan or Investments
required or contemplated by the Royal Street Agreements in the geographic markets covered by
the FCC licenses acquired pursuant to the Auction 58 Acquisition;
(xiii) Investments consisting of Permitted Acquisitions; and
(xiv) other Investments in any Person having an aggregate Fair Market Value (measured
on the date each such Investment was made and without giving effect to subsequent changes in
value) that, when taken together with (A) all other Investments made pursuant to this clause
(xiv) and (B) all Permitted Acquisitions made pursuant to clause (d) of the definition of
Permitted Acquisition at the time outstanding, do not exceed $25,000,000.
Notwithstanding any other provision to the contrary, no Permitted Investment shall be deemed to be
a Restricted Payment.
Permitted Joint Venture Investment
means, with respect to any specified Person,
Investments in any other Person engaged in a business permitted by Section 8.19 (a) (i) over which
the specified Person has or controls 40% or more of the votes on the management committee or board
of directors of such other Person, (ii) with which such specified Person is party to an FCC
approved services agreement pursuant to which such specified Person actively participates in the
day-to-day management of such other Person, or (iii) over which the specified Person otherwise has
operational and managerial control of such other Person, and (b) of which at least 40% of the
outstanding Capital Stock of such other Person is at the time owned directly or indirectly by the
specified Person.
Permitted Payments to any Parent
means, without duplication as to amounts: (a)
payments to any Parent (directly or through Holdings) to permit any Parent to pay reasonable
accounting, legal, investment banking fees and administrative expenses of such Parent when due; and
(b) for so long as the Borrower is a member of a group filing a consolidated or combined tax return
with any Parent, payments to such Parent in respect of an allocable portion of the tax liabilities
of such group that is attributable to the Borrower and its Subsidiaries (
Tax Payments
).
The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any
penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax
return (or a separate consolidated or combined return with its Subsidiaries that are members of the
consolidated or combined group), taking into account any carryovers and carrybacks of tax
attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable
years and (ii) the net amount of the relevant tax that such Parent actually owes to the appropriate
taxing authority. Any Tax Payments received from the Borrower shall be paid
27
over to the appropriate taxing authority within 30 days of such Parents receipt of such Tax
Payments or refunded to the Borrower.
Permitted Refinancing Indebtedness
: any Indebtedness of the Borrower or any
Subsidiary Guarantor (a) issued in exchange for, or the net proceeds of which are used to extend,
renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in
part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of
((a) and (b) above, collectively, a
Permitted Refinancing
), any other Indebtedness of the
Borrower or any Subsidiary Guarantor (other than intercompany Indebtedness) in a principal amount
not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection
with the Permitted Refinancing) the lesser of:
(1) the principal amount of the Indebtedness so refinanced (plus the amount of premium,
if any, fees and expenses paid in connection therewith), and
(2) if the Indebtedness being refinanced was issued with any original issue discount,
the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time
of such Permitted Refinancing.
Notwithstanding the preceding, no Indebtedness will be deemed to be Permitted Refinancing
Indebtedness, unless:
(1) such Indebtedness has a final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being refinanced;
(2) if the Indebtedness being refinanced is Subordinated Indebtedness, such
Indebtedness has a final maturity date later than the final maturity date of, and
constitutes Subordinated Indebtedness, contractually subordinated or otherwise junior in
right of payment to, the Obligations, on terms at least as favorable to the holders of the
Obligations as those contained in the documentation governing the Indebtedness being
refinanced at the time of the Permitted Refinancing;
(3) if the Indebtedness being refinanced is Secured Indebtedness, such Permitted
Refinancing Indebtedness is either unsecured or is only secured by those assets securing the
Indebtedness being Refinanced, and, in the case of Indebtedness other than Indebtedness
incurred pursuant to Section 8.2(m) the Liens securing such Permitted Refinancing
Indebtedness are governed by an intercreditor agreement satisfactory to the Administrative
Agent;
(4) if the Indebtedness being refinanced is unsecured, such Permitted Refinancing
Indebtedness is unsecured; and
(5) such Indebtedness is incurred by the Borrower or the Subsidiary Guarantor who is
the obligor on the Indebtedness being refinanced.
Person
: natural persons, corporations, limited partnerships, general partnerships,
limited liability companies, limited liability partnerships, joint stock companies,
28
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.
Plan
: any employee pension benefit plan, as defined in section 3(2) of ERISA that
is not a Multiemployer Plan, that is subject to Title IV of ERISA, Section 302 of ERISA or Section
412 of the Code and that (a) is currently or hereafter sponsored, maintained or contributed to by
the Borrower, a Subsidiary or an ERISA Affiliate or (b) was at any time during the six consecutive
year period ending on the date hereof, sponsored, maintained or contributed to by the Borrower or a
Subsidiary or an ERISA Affiliate.
Pricing Grid
: the pricing grid attached hereto as Annex A.
Pro Forma Basis
: with respect to any calculation for any period, a determination of
such calculation on a pro forma basis after giving effect to all Asset Acquisitions and Asset
Dispositions made by the Borrower and its Consolidated Subsidiaries from the beginning of such
period through and including such date of determination (the
Calculation Date
) (including
any related financing transactions and the application of proceeds of any Asset Disposition) as if
such Asset Acquisitions and Asset Dispositions (and related financing transactions and the
application of proceeds of any Asset Disposition) had occurred at the beginning of such period,
plus,
if any New Market Losses are incurred for such period, the amount of such New Market Losses
up to the New Market Losses Cap. In addition, (i) the Consolidated EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date, will be excluded; (ii) any
Person that is a Consolidated Subsidiary of the Borrower on the Calculation Date will be deemed to
have been a Consolidated Subsidiary of the Borrower at all times during such period; (iii) any
Person that is not a Consolidated Subsidiary of the Borrower on the Calculation Date will be deemed
not to have been a Consolidated Subsidiary of the Borrower at any time during such period; (iv) pro
forma effect shall be given to asset dispositions and asset acquisitions (including giving pro
forma effect to any related financing transactions and the application of proceeds of any asset
disposition) that have been made by any Person that has become a Consolidated Subsidiary of the
Borrower or has been merged with or into the Borrower or any Consolidated Subsidiary of the
Borrower during such period that would have constituted an Asset Disposition or Asset Acquisition
had such transactions occurred when such Person was a Consolidated Subsidiary of the Borrower, as
if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such period; and (v) such pro forma effect shall be determined in good
faith on a reasonable basis by a responsible financial or accounting officer of the Borrower.
Projections
: as defined in Section 7.2(b).
Property
: any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible, including, without limitation, cash, securities, accounts and
contract rights.
Qualified Counterparty
: with respect to any Specified Hedge Agreement, any
counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a
Lender, an Affiliate of a Lender, an Agent or an Affiliate of an Agent.
29
Qualified IPO
: one or more issuances and sales of common stock of Superholdings in
offerings registered with the SEC (other than any such offerings registered on Form S-4 or S-8)
generating aggregate net proceeds that have been contributed to the Borrower of at least
$400,000,000.
Reaffirmation Agreement
: the Reaffirmation Agreement to be executed by the Borrower
and the other Loan Parties, substantially in the form of
Exhibit A
.
Recovery Event
: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the Borrower or any
Subsidiary in excess of $5,000,000.
Reference Bank
: The Bank of New York.
Refinanced Indebtedness
: the Original Term Loans.
Refinancing
: the permanent repayment in full or deemed repayment in full with the
proceeds of the Tranche B Term Loans of all Obligations (as defined in the Original Credit
Agreement) outstanding in connection with the Refinanced Indebtedness except for accrued but unpaid
interest owed to the Continuing Lenders with respect to the Original Term Loans that are deemed to
be Tranche B Term Loans.
Refunded Swingline Loans
: as defined in Section 3.4.
Refunding Date
: as defined in Section 3.4.
Register
: as defined in Section 11.6(b)(iv).
Regulation U
: Regulation U of the Board as in effect from time to time.
Reimbursement Obligation
: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.11 for amounts drawn under Letters of Credit.
Reinvestment Deferred Amount
: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by the Borrower or any Subsidiary in connection therewith that are not
applied to prepay the Loans pursuant to Section 4.2(b) as a result of the delivery of a
Reinvestment Notice.
Reinvestment Event
: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.
Reinvestment Notice
: a written notice executed by an Authorized Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair assets useful in the business
of the Borrower or any Subsidiary Guarantor or to make Permitted Acquisitions.
30
Reinvestment Prepayment Amount
: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets useful in the business of the Borrower or
any Subsidiary Guarantor.
Reinvestment Prepayment Date
: with respect to any Reinvestment Event, the earlier
of (a) the date occurring one year after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets
useful in the business of the Borrower or any Subsidiary Guarantor with all or any portion of the
relevant Reinvestment Deferred Amount.
Release
: any release, spill, emission, leaking, pumping, pouring, injection,
escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous
Material into the indoor or outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or groundwater.
Remedial Work
: as defined in Section 7.8(a)(iv).
Reportable Event
: any of the events set forth in Section 4043 of ERISA, other than
those events as to which the thirty day notice period is waived under subsections .27, .28, .29,
.30, .31, .32, .34 or .35 of PBGC Reg. § 4043.
Required Lenders
: at any time, the holders of more than 50% of (a) until the
Restatement Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments
then in effect or, if the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.
Required Prepayment Date
: as defined in Section 4.2(d).
Requirement of Law
: as to any Person, any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
Restatement Date
: the date on which the conditions precedent set forth in Section
6.1 shall have been satisfied or waived (in accordance with Section 11.1).
Restricted Investment
: any Investment other than a Permitted Investment.
Restricted Payment
: (a) the declaration or payment of any dividend or the making of
any other payment or distribution on account of the Borrower or any of its Subsidiaries Capital
Stock (including, without limitation, any payment in connection with any merger or consolidation
involving the Borrower or any of its Subsidiaries) or to the direct or indirect holders of the
Borrowers or any of its Subsidiaries Capital Stock in their capacity as such (other than
dividends or distributions payable in Capital Stock (other than Disqualified
31
Stock) of the Borrower and other than dividends or distributions payable to the Borrower or a
Subsidiary Guarantor); (b) the purchase, redemption or other acquisition or retirement for value
(including, without limitation, in connection with any merger or consolidation involving the
Borrower) of, any Capital Stock of the Borrower or any direct or indirect Parent; (c) any payment
on or with respect to, or purchase, redemption, defeasement or other acquisition or retirement for
value of any Subordinated Indebtedness (excluding any intercompany Indebtedness between or among
the Borrower and any of its Subsidiaries) or the Senior Notes, except a payment of interest or
principal at the stated maturity thereof or in connection with a Permitted Refinancing thereof; or
(d) any Restricted Investment.
Restricted Payment Cap
: as of the date of any determination thereof, the sum of:
(A) 100% of the Consolidated EBITDA (taken as one accounting period) since the beginning of
the Fiscal Quarter in which the Closing Date occurs to the end of the most recently ended Fiscal
Quarter for which internal financial statements are available at the time of such Restricted
Payment,
plus
, if any New Market Losses are incurred for the four Fiscal Quarter period for which
internal financial statements are available prior to the date of determination, the amount of such
New Market Losses for such four Fiscal Quarter period up to the New Market Losses Cap, less the
product of 1.50 multiplied by Consolidated Interest Expense since the beginning of the Fiscal
Quarter in which the Closing Date occurs;
plus
(B) 100% of, without duplication, (i)(a) the aggregate net cash proceeds, or (b) the Fair
Market Value, as the case may be, of (x) marketable securities (other than marketable securities of
the Borrower) of an Affiliate of the Borrower, (y) Capital Stock of a Person (other than the
Borrower or an Affiliate of the Borrower) engaged primarily in any business permitted by Section
8.19;
provided
that Person becomes a Subsidiary Guarantor, or is a Person in which an Investment
pursuant to clause (x) or (xiv) of the definition of Permitted Investment has been made and which
Person shall have granted a Group Member a sole first priority Lien on substantially all of the
assets of such Person (except (x) as may be limited by a Requirement of Law or (y) for Other
Approved Liens), and (z) other assets used in any business permitted by Section 8.19, in the case
of clauses (a) and (b), received by the Borrower since the Closing Date as a contribution to its
common equity capital, or from the issue or sale of Capital Stock (other than Disqualified Stock)
of any Parent and contributed to the Borrower or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities of any Parent that
have been converted into or exchanged for such Capital Stock (other than Capital Stock (or
Disqualified Stock or debt securities) sold to a Subsidiary of Holdings), (ii) the amount by which
Indebtedness of the Borrower or any Subsidiary Guarantor is reduced on the Borrowers consolidated
balance sheet upon the conversion or exchange after the Closing Date of any such Indebtedness into
or for Capital Stock of any Parent (other than Disqualified Stock), and (iii) the aggregate net
cash proceeds, if any, received by the Borrower or any Subsidiary Guarantor upon any conversion or
exchange described in clause (ii) above;
plus
(C) to the extent that any Restricted Investment that was made after the Closing Date is sold
for Cash or Cash Equivalents, or is otherwise liquidated or repaid for Cash or Cash Equivalents, an
amount equal to such Cash or Cash Equivalents, but not to exceed the initial amount of such
Restricted Investment;
plus
32
(D) 100% of any Cash dividends or Cash distributions actually received directly or indirectly
by the Borrower or a Subsidiary Guarantor after the Closing Date from a Subsidiary of the Borrower
that is not a Subsidiary Guarantor, to the extent that such dividends or distributions were not
otherwise included in Consolidated Net Income of the Borrower;
plus
(E) $25,000,000.
Restructuring
: that certain restructuring in which MetroPCS IV, Inc., MetroPCS III,
Inc., MetroPCS II, Inc. and MetroPCS, Inc., were merged with and into the Borrower and the name of
MetroPCS V, Inc. was changed to MetroPCS, Inc.
Revolving Commitment
: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate
principal and/or face amount not to exceed the amount set forth under the heading Revolving
Commitment on such Lenders Addendum or in the Assignment and Assumption pursuant to which such
Lender became a party hereto, as the same may be changed from time to time pursuant to the terms
hereof, including through any Incremental Revolving Loan Commitments pursuant to Section 2.4. The
amount of the Total Revolving Commitments is $100,000,000 as of the Restatement Date, and such
amount may be changed from time to time pursuant to the terms hereof, including through any
Incremental Revolving Loan Commitments made pursuant to Section 2.4.
Revolving Commitment Period
: the period from and including the day after the
Closing Date to the Revolving Termination Date.
Revolving Extensions of Credit
: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding, (b) such Lenders Revolving Percentage of the L/C Obligations then outstanding
and (c) such Lenders Revolving Percentage of the aggregate principal amount of Swingline Loans
then outstanding.
Revolving Lender
: each Lender that has a Revolving Commitment or that holds
Revolving Loans.
Revolving Loans
: as defined in Section 3.1(a).
Revolving Percentage
: as to any Revolving Lender at any time, the percentage which
such Lenders Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lenders Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).
Revolving Termination Date
: November 3, 2011.
Royal Street
: Royal Street Communications, LLC, a Delaware limited liability
company.
33
Royal Street Agreements
: the Royal Street Credit Agreement, the Royal Street Letter
of Credit Agreement, the Royal Street Equipment and Facilities Lease Agreement, the Royal Street
LLC Agreement, the Royal Street Pledge Agreement, the Royal Street Promissory Note, the Royal
Street Security Agreement and the Royal Street Services Agreement.
Royal Street Credit Agreement
: the Second Amended and Restated Credit Agreement,
executed on December 15, 2005 as of December 22, 2004, by and between Royal Street and the
Borrower, as amended from time to time, as in effect on the date hereof, as amended, supplemented
or modified from time to time to the extent not prohibited hereunder.
Royal Street Equipment and Facilities Lease Agreement
: the Master Equipment and
Facilities Lease Agreement executed as of May 17, 2006, by and between Royal Street and the
Borrower, as amended, supplemented or modified from time to time.
Royal Street Letter of Credit Agreement
: the Letter of Credit Agreement, dated
November 24, 2004, by GWI PCS1, Inc. to and for the benefit of C9 Wireless II, LLC, as amended,
supplemented or modified from time to time.
Royal Street LLC Agreement
: the Amended and Restated Limited Liability Company
Agreement of Royal Street, executed on December 15, 2005 as of November 24, 2004 by and between C9
Wireless, LLC, GWI PCS1, Inc., and the Borrower, as amended, supplemented or modified from time to
time.
Royal Street Loan
: the aggregate amount of loans by the Borrower to Royal Street in
order to fund the purchase by Royal Street of the Auction 58 Acquisition and the build-out of the
Royal Street systems and the operations of Royal Street, as amended, supplemented or modified from
time to time.
Royal Street Pledge Agreement
: the Amended and Restated Pledge Agreement, executed
on December 15, 2005 as of December 22, 2004, by and between Royal Street and the Borrower, as
amended from time to time, as in effect on the date hereof, as amended, supplemented or modified
from time to time to the extent not prohibited hereunder.
Royal Street Promissory Note
: the Amended and Restated Promissory Note, executed on
December 15, 2005 as of December 22, 2004, by Royal Street to the order of the Borrower, as
amended, supplemented or modified from time to time.
Royal Street Security Agreement
: the Amended and Restated Security Agreement,
executed on December 15, 2005 as of December 22, 2004, by and between Royal Street and the
Borrower, as amended from time to time, as in effect on the date hereof, as amended, supplemented
or modified from time to time to the extent not prohibited hereunder.
Royal Street Services Agreement
: the Amended and Restated Services Agreement,
executed on December 15, 2005 as of November 24, 2004, by and between Royal Street and the
Borrower, as amended, supplemented or modified from time to time.
S&P
: Standard & Poors Ratings Group, a division of The McGraw Hill Corporation.
34
SEC
: the U.S. Securities and Exchange Commission or any successor Governmental
Authority.
Secured Indebtedness
: with respect to any specified Person, any Indebtedness of
such Person that is secured by a Lien on the assets of such Person,
plus
any Indebtedness of any
other Person to the extent that such Indebtedness is secured by a Lien on the assets of the
specified Person (but if such Indebtedness is not assumed by the specified Person, limited to the
lesser of (i) the Fair Market Value of such assets at the date of determination and (ii) the amount
of Indebtedness of the other Person so secured).
Secured Parties
: the collective reference to the Lenders, the Agents, the Qualified
Counterparties, the Issuing Lender and the Swingline Lender.
Securities Act
: the Securities Act of 1933, as amended from time to time, and any
successor statute.
Security Documents
: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to the Administrative
Agent granting or perfecting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
Senior Note Indenture
: the Indenture, dated as of November 3, 2006, entered into by
Superholdings, Holdings, the Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Notes, together with all instruments and other agreements entered into by
Superholdings, Holdings, the Borrower or such Subsidiaries in connection therewith.
Senior Notes
: the Borrowers 9 1/4% Senior Notes due 2014 issued pursuant to the
Senior Note Indenture.
Significant Subsidiary
: any Subsidiary that would be a significant subsidiary as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Exchange
Act of 1934, as amended, as such regulation is in effect on the Closing Date.
Solvent
: with respect to any Group Member, that as of the date of determination,
both (i) (a) the sum of such Group Members Indebtedness (including contingent liabilities) does
not exceed the present fair saleable value of such Group Members present assets; (b) such Group
Members capital is not unreasonably small in relation to its business as contemplated on the
Restatement Date or with respect to any transaction contemplated herein to be undertaken after the
Restatement Date; and (c) such Person has not incurred and does not intend to incur, or believe
(nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts
as they become due (whether at maturity or otherwise); and (ii) such Person is solvent within the
meaning given that term and similar terms under applicable laws relating to fraudulent transfers
and conveyances. For purposes of this definition, the amount of any contingent liability at any
time shall be computed as the amount that, in light of all of the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to become an actual or matured
liability (irrespective of whether such contingent liabilities meet the criteria for accrual under
Statement of Financial Accounting Standard No. 5).
35
Specified Interest Hedge Agreement
: any Specified Hedge Agreement entered into with
respect to interest payments on the Loans.
Specified Hedge Agreement
: any Hedge Agreement (a) entered into by (i) the Borrower
or any of its Subsidiaries and (ii) any Qualified Counterparty, as counterparty and (b) that has
been designated by such Qualified Counterparty and the Borrower, by notice to the Administrative
Agent, as a Specified Hedge Agreement
provided
, that (i) subject to Section 11.14, obligations of
the Borrower or any Subsidiary under any Specified Hedge Agreement shall be secured and guaranteed
pursuant to the Security Documents and (ii) any release of Collateral or Guarantors effected in the
manner permitted by this Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements. The designation of any Hedge Agreement as a Specified Hedge Agreement
shall not create in favor of any Qualified Counterparty that is a party thereto any rights in
connection with the management or release of any Collateral or of the obligations of any Guarantor
under the Guarantee and Collateral Agreement except as provided in Section 11.14.
Subordinated Indebtedness
: any unsecured Indebtedness of the Borrower or a
Subsidiary Guarantor, no part of the principal of which is required to be paid (whether by way of
mandatory sinking fund, mandatory redemption or mandatory prepayment), prior to the Term Loan
Maturity Date (it being understood that any required offer to purchase such Indebtedness as a
result of a change of control or asset sale shall not violate the foregoing restriction) and the
payment of principal and interest of which and other obligations of the Borrower or such Subsidiary
in respect thereof are subordinated to the prior payment in full of the Obligations on terms and
conditions satisfactory to the Administrative Agent and the Required Lenders. Notwithstanding the
fact that intercompany Indebtedness permitted by Section 8.2(c) is contractually subordinated to
the Obligations pursuant to the Subordinated Intercompany Note, such intercompany Indebtedness
shall not constitute Subordinated Indebtedness.
Subordinated Intercompany Note
: the promissory note dated as of November 3, 2006,
evidencing Indebtedness owed by any Group Member to any Loan Party.
Subsidiary
: with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof;
provided
, in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of a qualifying
share of the former Person shall be deemed to be outstanding. Unless otherwise specified, all
references herein to a Subsidiary mean a Subsidiary of the Borrower.
Subsidiary Guarantor
: each domestic Wholly-Owned Subsidiary of the Borrower that is
a Guarantor as of the date hereof or that becomes a Guarantor hereunder or that is required to
become a Guarantor pursuant to the terms hereof.
36
Superholdings
: MetroPCS Communications, Inc., a Delaware corporation.
Swingline Commitment
: the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 3.3 in an aggregate principal amount at any one time outstanding not to
exceed $20,000,000.
Swingline Lender
: Bear Stearns Corporate Lending Inc., in its capacity as the
lender of Swingline Loans.
Swingline Loans
: as defined in Section 3.3.
Swingline Participation Amount
: as defined in Section 3.4.
Syndication Agent
: as defined in the preamble to this Agreement.
Tax
: any present or future tax, levy, impost, duty, assessment, charge, fee,
deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and
wherever imposed, levied, collected, withheld or assessed;
provided
, Tax on the overall net
income of a Person (or similar words or phrases) shall be construed as a reference to a tax
imposed by the jurisdiction in which that Person is organized or in which that Persons applicable
principal office (and/or, in the case of a Lender, its lending office) is located or in which that
Person (and/or, in the case of a Lender, its lending office) is deemed to be doing business on all
or part of the net income, profits or gains (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a particular jurisdiction, or
otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).
Term Loan Maturity Date
: the seventh anniversary of the Closing Date.
Term Loans
: the collective reference to Tranche B Term Loans and the Incremental
Term Loans (including Other Term Loans), if any.
Total Revolving Commitments
: at any time, the aggregate amount of the Revolving
Commitments then in effect.
Total Revolving Extensions of Credit
: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.
Tranche B Term Commitment
: as to any Lender, the obligation of such Lender, if any,
to make a Tranche B Term Loan to the Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading Tranche B Term Commitment on such Lenders Addendum or in the
Assignment and Assumption pursuant to which such Lender became a party hereto. The aggregate
amount of the Tranche B Commitments as of the Restatement Date is $1,596,000,000.
Tranche B Term Lender
: each Lender that has a Tranche B Term Commitment or that
holds Tranche B Term Loans.
Tranche B Term Loan
: as defined in Section 2.1.
37
Tranche B Term Percentage
: as to any Tranche B Term Lender at any time, the
percentage which such Lenders Tranche B Term Commitment then constitutes of the aggregate Tranche
B Term Commitments (or, at any time after the funding of the Tranche B Term Loans, the percentage
which the aggregate principal amount of such Lenders Tranche B Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche B Term Loans then outstanding).
Transactions
: collectively, the Refinancing and the execution, delivery and
performance of the Loan Documents.
Transferee
: any Assignee or Participant.
Type
: as to any Loan, its nature as a Base Rate Loan or Eurodollar Loan.
United States
: the United States of America.
Waivable Mandatory Prepayment
: as defined in Section 4.2(d).
Weighted Average Life to Maturity
: when applied to any Indebtedness at any date,
the number of years obtained by dividing (a) the sum of the products obtained by multiplying (x)
the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect of the Indebtedness, by (y)
the number of years (calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
Wholly Owned Subsidiary
: any Subsidiary of which all of the outstanding Capital
Stock (other than any directors qualifying shares mandated by applicable law), on a fully-diluted
basis, is owned by the Borrower or one or more of the Wholly Owned Subsidiaries of the Borrower.
1.2.
Other Definitional Provisions
. (a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) the words include, includes and including shall
be deemed to be followed by the phrase without limitation, (ii) the word incur shall be
construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and
the words incurred and incurrence shall have correlative meanings), and (iii) the words asset
and property shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including Cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights, and (iv) references to agreements or other
Material Contractual Obligations shall, unless otherwise specified, be deemed to refer to such
agreements or Material Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable
restrictions hereunder).
38
(c) The words hereof, herein and hereunder and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(e) The expressions, payment in full, paid in full and any other similar terms or phrases
when used herein with respect to the Obligations shall mean the payment in full, in immediately
available funds, of all the Obligations.
(f) Except as otherwise expressly provided herein, all accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and
other information required to be delivered by the Borrower to Lenders pursuant to Section 7.1(a)
and 7.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation
(and delivered together with the reconciliation statements provided for in Section 7.1(c), if
applicable).
1.3.
Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a Letter
of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time;
provided, however
, that with respect to any Letter of Credit that, by its terms or the
terms of any Letter of Credit, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time (the difference between the stated amount in effect at such time
and the maximum stated amount of such Letter of Credit, the Additional Stated LC Amount).
1.4.
Relationship with Original Credit Agreement
.
(a) This Agreement amends and restates the provisions of the Original Credit Agreement and (i)
all of the terms and provisions of the Original Credit Agreement shall continue to apply for the
period from the Closing Date to the Restatement Date, including any determinations of payment
dates, interest rates, Events of Default or any amount that may be payable to any Agent or any
Lender (or their assignees or replacements), (ii) the obligations under the Original Credit
Agreement which have not been repaid or deemed repaid shall from and after the Restatement Date
continue to be owing in accordance with, and subject to, the terms of this Agreement, and (iii) the
obligations under the Original Credit Agreement which have been repaid or deemed repaid shall be
terminated as of the date of repayment, except for accrued but unpaid interest owed to the
Continuing Lenders with respect to the Original Term Loans that are deemed to be Tranche B Term
Loans. On and after the Restatement Date, all references in any Loan Document to (i) the Credit
Agreement shall be deemed to include references to this Agreement and (ii) the Lenders or a
Lender or the Administrative Agent shall mean such terms as defined in this Agreement. As to all periods occurring on or after
the Restatement Date, all of the terms and conditions set forth in the Original Credit Agreement
shall be of no further force and effect, it being understood that all obligations of each Loan
Party
39
under the Original Credit Agreement and related Loan Documents, after giving effect to the
Refinancing, shall be governed by this Agreement and the related Loan Documents from and after the
Restatement Date.
(b) The parties hereto acknowledge and agree that all principal, interest, fees, costs,
reimbursable expenses and indemnification obligations accruing or arising under or in connection
with the Original Credit Agreement which remain unpaid and outstanding as of the Restatement Date
shall be and remain outstanding and payable as an Obligation under this Agreement and the other
Loan Documents.
SECTION 2. AMOUNT AND TERMS OF
TERM COMMITMENTS; INCREMENTAL FACILITIES
2.1.
Term Commitments
. Subject to the terms and conditions hereof:
(a) Each Tranche B Term Lender severally agrees to make (or be deemed to have made) a term
loan to the Borrower in Dollars (each, a
Tranche B Term Loan
) on the Restatement Date in
the amount of the Tranche B Term Commitment of such Tranche B Term Lender. The Term Loans may from
time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 4.3.
(b) Each of the Continuing Lenders agrees that the Original Term Loans made by such Continuing
Lender under the Original Credit Agreement shall remain outstanding on and after the Restatement
Date as Tranche B Term Loans made pursuant to this Agreement, and shall be deemed to constitute
Tranche B Term Loans made in satisfaction of its obligation to make Tranche B Term Loans on the
Restatement Date in accordance with Section 2.1(a) in an amount equal to the amount of such
Original Term Loans. Such Original Term Loans shall on and after the Restatement Date have all of
the rights and benefits of Tranche B Term Loans as set forth in this Agreement and the other Loan
Documents. Notwithstanding anything herein to the contrary, all such Tranche B Term Loans deemed
so made hereunder on the Restatement Date pursuant to this Section 2.1 that are Eurodollar Loans
will have initial Interest Periods ending on the same dates as the Interest Periods applicable on
the Restatement Date to the Original Term Loans of such Continuing Lenders.
2.2.
Procedure for Tranche B Term Loan Borrowing
.
(a) Not later than 10:00 A.M., New York City time, on the Restatement Date each Tranche B Term
Lender that is not a Continuing Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Tranche B Term Loan to be made
by such Tranche B Term Lender. The Administrative
Agent shall promptly make available to the Borrower on the Restatement Date, by wire transfer
of immediately available funds to a bank account designated in writing by the Borrower, the
aggregate of the amounts made available to the Administrative Agent by the Tranche B Term Lenders
in immediately available funds.
(b) On the Restatement Date, notwithstanding anything to the contrary contained in the
definition of Interest Periods, Interest Periods with respect to the Tranche B
40
Term Loans shall be
as follows: (i) Tranche B Term Loans shall be made, or deemed made, as Eurodollar Loans in an
amount equal to the amount of the Original Term Loans then outstanding as Eurodollar Loans (such
Tranche B Term Loans to correspond in amount to Original Term Loans of a given Interest Period),
(ii) Interest Periods for the Tranche B Term Loans described in clause (i) above shall end on the
same dates as the Interest Periods applicable for the corresponding Original Term Loans described
in clause (i) above, and the Eurodollar Rates applicable to such Tranche B Term Loans during such
Interest Periods shall be the same as those applicable to such Original Term Loans, (iii) Tranche B
Term Loans shall be made or deemed made as Base Rate Loans in amount equal to the amount of
Original Term Loans then outstanding as Base Rate Loan, and (iv) Borrower will not be required to
make any payments under Section 4.11 of the Original Credit Agreement to Original Term Lenders that
become Tranche B Term Lenders in connection with the exchange of their Original Term Loans for
Tranche B Term Loans, except to the extent that any Tranche B Term Lenders Tranche B Term Loans
are less than such Tranche B Term Lenders Original Term Loans (such amount, a
Non-Renewed
Tranche B Term Loan
), in which case the Borrower shall be required to make payments under
Section 4.11 of the Original Credit Agreement to each applicable Tranche B Term Lender based on the
amount of such Tranche B Term Lenders Non-Renewed Tranche B Term Loan.
2.3.
Repayment of Term Loans
. The Tranche B Term Loan of each Tranche B Lender shall
mature in 27 consecutive quarterly installments, commencing on March 31, 2007, each of which shall
be in an amount equal to (a) such Lenders Tranche B Term Percentage multiplied by the initial
aggregate principal amount of the Original Term Loans multiplied by (b) 0.25%, with the remainder
due on the Term Loan Maturity Date, each such installment being subject to any reduction pursuant
to Section 4.2(c). In the event that any Incremental Term Loans (including Other Term Loans) are
made, the Incremental Term Loan of each Incremental Lender shall not amortize unless specifically
stated in an Incremental Commitment Agreement.
2.4.
Increase in Commitments
. (a) The Borrower may request (in writing) Incremental
Commitments in an aggregate amount not to exceed, in the aggregate, $750,000,000, in increments of
no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment
pursuant to this Section 2.4 is less than $75,000,000) at any one time, from one or more
Incremental Lenders (approved by the Administrative Agent if such Incremental Lender is not already
a Revolving Lender and is to be a Revolving Lender after the effective date of the applicable
Incremental Commitment Agreement) willing to provide such Incremental Commitments. Requests for
such Incremental Commitments may be, at the Borrowers option,
for Incremental Revolving Loans (at any time prior to the Revolving Termination Date) and/or
Incremental Term Loans. In the event the Borrower shall request Incremental Term Loans, such
request shall set forth (i) the amount of the Incremental Term Loans being requested, (ii) the date
on which such Incremental Term Loans are requested to be made, (iii) any requested differences
between the Incremental Term Loans and the existing Term Loans (which shall not be effective until
set forth in an executed Incremental Commitment Agreement executed by the Group Members and each
applicable Incremental Lender),
provided
, that in any event (A) the Weighted Average Life to
Maturity of all Incremental Term Loans shall be no shorter than the Weighted Average Life to
Maturity of the Tranche B Term Loans at the time of the borrowing of such Incremental Term Loan,
and (B) the Maturity Date of any
41
Incremental Term Loans shall be no shorter than the final maturity
of the Tranche B Term Loans, and (iv) whether such Incremental Term Loans are to have the same
interest rate margin as the Tranche B Term Loans or whether such Incremental Term Loans are to
have a different interest rate margin than the Tranche B Term Loans (
Other Term Loans
);
provided
, that, if the interest rate margin in respect of any Other Term Loan exceeds the
Applicable Margin for the Tranche B Term Loans (it being understood that any such increase may take
the form of original issue discount (
OID
), with OID being equated to the interest rates
in a manner determined by the Administrative Agent based on an assumed four-year life to maturity),
such Applicable Margin shall be increased so that the interest rate margin in respect of such Other
Term Loan (giving effect to any OID issued in connection with such Other Term Loan) is no higher
than the Applicable Margin for the Tranche B Term Loans. All Incremental Term Loans (including
Other Term Loans) shall be made on substantially identical terms as the Tranche B Term Loans,
except as set forth in any applicable Incremental Commitment Agreement, and, in the case of Other
Term Loans, with respect to the interest rate margin applicable thereto. No Agent or Lender shall
be obligated to deliver or fund any Incremental Commitment. The Borrower may borrow under the
Incremental Commitments only five times during the term of this Agreement.
(b) No Incremental Commitment shall be effective unless the Borrower delivers to the
Administrative Agent an Incremental Commitment Agreement executed and delivered by the Loan Parties
and the proposed Incremental Lenders and such other documentation relating thereto as the
Administrative Agent may reasonably request. Each Incremental Commitment Agreement shall, upon due
execution, constitute a Loan Document and, to the extent set forth therein, an amendment of this
Agreement, and such amendment shall be effective when and as set forth therein and need not be
executed, delivered or consented to by any other Agent or Lender. In addition, each of the parties
hereto hereby agrees that, upon the effectiveness of any Incremental Commitment Agreements, this
Agreement shall be amended automatically to the extent (but only to the extent) necessary to
reflect the existence and terms of the Incremental Term Loans. Any such amendment may be
memorialized in writing by the Administrative Agent with the Borrowers consent (not to be
unreasonably withheld) and furnished to the other parties hereto.
(c) The terms and provisions of any Incremental Revolving Loans shall be identical to the
Revolving Loans. On any date on which Incremental Revolving Loan Commitments are effected, subject
to the satisfaction of the terms and conditions in this Section 2.4, (i) each of the Revolving
Lenders shall assign to each of the Incremental Lenders with an Incremental Revolving Loan
Commitment, and each of the Incremental Lenders shall purchase from each of the Revolving Lenders,
at the principal amount thereof (together with accrued
interest), such interests in the Revolving Loans outstanding on such date as shall be
necessary in order that, after giving effect to all such assignments and purchases, such Revolving
Loans will be held by existing Revolving Lenders and Incremental Lenders ratably in accordance with
their Revolving Loan Commitments after giving effect to the addition of such Incremental Revolving
Loan Commitments to the existing Revolving Loan Commitments, (ii) each Incremental Revolving Loan
Commitment shall be deemed for all purposes a Revolving Loan Commitment and each Incremental
Revolving Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iii) each
Incremental Lender shall become a Lender with respect to the Incremental Revolving Loan Commitment
and all matters relating thereto.
42
(d) The Administrative Agent shall promptly notify each Lender whenever any Incremental
Commitment becomes effective.
(e) No Incremental Commitment Agreement shall become effective unless the Administrative Agent
has received (i) a certificate executed by an Authorized Officer of the Borrower to the effect that
no Default or Event of Default has occurred and is continuing, and (ii) such additional Security
Documents, legal opinions, board resolutions, certificates and other documentation as may be
required by such Incremental Commitment Agreement or reasonably requested by the Administrative
Agent.
(f) Each Incremental Commitment Agreement shall contain representations and warranties by the
Borrower substantially in the form of those made by the Borrower in this Agreement, except for any
exceptions, disclosures or modifications reasonably acceptable to the Administrative Agent, the
Borrower and the Incremental Lender(s) making a Loan pursuant to such Incremental Commitment
Agreement.
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
3.1.
Revolving Commitments
.
(a) Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans (
Revolving Loans
) to the Borrower from time to time during the
Revolving Commitment Period in an aggregate principal amount at any one time outstanding which,
when added to such Lenders Revolving Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swingline Loans then outstanding, does
not exceed the amount of such Lenders Revolving Commitment. During the Revolving Commitment
Period the Borrower may use the Revolving Commitments by borrowing, prepaying and reborrowing the
Revolving Loans in whole or in part, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3.
(b) The Borrower shall repay all outstanding Revolving Loans on the Revolving Termination
Date.
3.2.
Procedure for Revolving Loan Borrowing
. The Borrower may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Business Day,
provided
that the Borrower
shall give the Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans) (
provided
that any such notice of a
borrowing of Base Rate Loans to finance payments required to be made pursuant to Section 3.5 may be
given not later than 12:00 Noon, New York City time, on the date of the proposed borrowing),
specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing
under the Revolving Commitments shall be in an amount equal
43
to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving Commitments
are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000
or a whole multiple of $1,000,000 in excess thereof;
provided
, that (x) the Swingline Lender may
request, on behalf of the Borrower, borrowings under the Revolving Commitments that are Base Rate
Loans in other amounts pursuant to Section 3.4 and (y) borrowings of Base Rate Loans pursuant to
Section 3.11 shall not be subject to the foregoing minimum amounts. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender
thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be made available to
the Borrower on such Borrowing Date by the Administrative Agent crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative
Agent.
3.3.
Swingline Commitment
.
(a) Subject to the terms and conditions hereof, the Swingline Lender agrees to make a portion
of the credit otherwise available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swing line loans (
Swingline Loans
) to
the Borrower;
provided
that (i) the aggregate principal amount of Swingline Loans outstanding at
any time shall not exceed the Swingline Commitment then in effect (notwithstanding that the
Swingline Loans outstanding at any time, when aggregated with the Swingline Lenders other
outstanding Revolving Loans hereunder, may exceed the Swingline Commitment then in effect) and (ii)
the Borrower shall not request, and the Swingline Lender shall not make, any Swingline Loan if,
after giving effect to the making of such Swingline Loan, the aggregate amount of the Available
Revolving Commitments would be less than zero. During the Revolving Commitment Period, the
Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swingline Loans on the Revolving Termination
Date.
3.4.
Procedure for Swingline Borrowing; Refunding of Swingline Loans
.
(a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give
the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later
than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount
to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the
Revolving Commitment Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New
York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the
Swingline Lender shall make available to the Administrative Agent at
44
the Funding Office an amount
in immediately available funds equal to the amount of the Swingline Loan to be made by the
Swingline Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the
Borrower with the Administrative Agent on such Borrowing Date in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Days notice given by the Swingline Lender no later than 12:00
Noon, New York City time, request each Revolving Lender to make, and each Revolving Lender hereby
agrees to make, a Revolving Loan, in an amount equal to such Revolving Lenders Revolving
Percentage of the aggregate amount of the Swingline Loans (the
Refunded Swingline Loans
)
outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall
make the amount of such Revolving Loan available to the Administrative Agent at the Funding Office
in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day
after the date of such notice. The proceeds of such Revolving Loans shall be immediately made
available by the Administrative Agent to the Swingline Lender for application by the Swingline
Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably authorizes the
Swingline Lender to charge the Borrowers accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such Refunded Swingline
Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full
such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section
3.4(b), one of the events described in Section 9(f) or 9(g) shall have occurred and be continuing
with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in
its sole discretion, Revolving Loans may not be made as contemplated by Section 3.4(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the
notice referred to in Section 3.4(b) (the
Refunding Date
), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an
amount (the
Swingline Participation Amount
) equal to (i) such Revolving Lenders
Revolving Percentage
times
(ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender
such Lenders Swingline Participation Amount, the Swingline Lender receives any payment on account
of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lenders participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such
Lenders
pro
rata
portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due);
provided
,
however
, that in the
event that such payment received by the Swingline Lender is required to be returned, such Revolving
Lender will return to the Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender.
45
(e) Each Revolving Lenders obligation to make the Loans referred to in Section 3.4(b) and to
purchase participating interests pursuant to Section 3.4(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such Revolving Lender or the Borrower may have against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 6; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Group Member or any other Revolving Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
3.5.
Commitment Fees, etc.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving
Lender a commitment fee for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December and on the
Revolving Termination Date, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates previously agreed to in writing by the Borrower and the Administrative Agent.
(c) The Borrower agrees to pay to the Lead Arranger the fees in the amounts and on the dates
previously agreed to in writing by the Borrower and the Lead Arranger.
3.6.
Termination or Reduction of Revolving Commitments
. The Borrower shall have the right,
upon not less than three Business Days notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided
that no such termination or reduction of Revolving Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made
on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole
multiple thereof, and shall reduce permanently the Revolving Commitments then in effect.
3.7.
L/C Commitment
.
(a) Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Lenders set forth in Section 3.10(a), agrees to issue letters of
credit (
Letters of Credit
) for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by the Issuing
Lender;
provided
that the Issuing Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
46
Commitment or
(ii) the aggregate amount of the Available Revolving Commitments would be less than zero. Each
Letter of Credit shall (i) be denominated in Dollars, (ii) have a face amount of at least $5,000
(unless otherwise agreed by the Issuing Lender) and (iii) expire no later than the earlier of (x)
the first anniversary of its date of issuance and (y) the date that is five Business Days prior to
the Revolving Termination Date,
provided
that any Letter of Credit with a one-year term may provide
for the auto extension thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). On the Restatement Date, the Existing Letters of
Credit will automatically, without any action of any Person, be deemed to be Letters of Credit
issued hereunder for the account of the Borrower for all purposes of this Agreement and the other
Loan Documents.
(b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law.
(c) The Issuing Lender shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter of
Credit, or any Governmental Requirement applicable to the Issuing Lender or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the Issuing Lender in good faith
deems material to it;
or
(ii) the issuance of such Letter of Credit would violate one or more policies of the
Issuing Lender applicable to all letters of credit issued by the Issuing Lender.
3.8.
Procedure for Issuance of Letter of Credit
. The Borrower may from time to time
request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at its
address for notices specified herein an Application therefor, with a copy to the Administrative
Agent, completed to the satisfaction of the Issuing Lender, and such other certificates, documents
and other papers and information as the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender will notify
the Administrative Agent of the amount, the beneficiary and the requested expiration of the
requested Letter of Credit, and upon receipt of confirmation from the Administrative Agent that
after giving effect to the requested issuance, the Available Revolving Commitments would not be
less than zero, the Issuing Lender will process such Application delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the Application therefor) by issuing
the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to
by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Borrower
47
(with a copy to the Administrative Agent) promptly following the issuance
thereof. The Issuing Lender shall promptly furnish to the Administrative Agent, which shall in
turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including
the amount thereof).
3.9.
Fees and Other Charges
.
(a) The Borrower will pay to the Administrative Agent a fee on all outstanding Letters of
Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Facility, shared ratably among the Revolving Lenders and payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee on the undrawn and
unexpired amount of each Letter of Credit as agreed by the Borrower and the Issuing Lender, payable
quarterly in arrears on each L/C Fee Payment Date after the Issuance Date. Any fees paid for
Existing Letters of Credit will automatically, without any action by any Person, be deemed paid for
Letters of Credit issued hereunder.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of
Credit;
provided
,
however
, that no costs or expenses shall be payable for conversion of the
Existing Letters of Credit to Letters of Credit issued hereunder.
3.10.
L/C Participations
.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions set forth below, for such L/C Participants own account and risk an
undivided interest equal to such L/C Participants Revolving Percentage in the Issuing Lenders
obligations and rights under and in respect of each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally
and irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit
for which the Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay to the
Administrative Agent upon demand of the Issuing Lender an amount equal to such L/C Participants
Revolving Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.
The Administrative Agent shall promptly forward such amounts to the Issuing Lender.
(b) If any amount required to be paid by any L/C Participant to the Administrative Agent for
the account of the Issuing Lender pursuant to Section 3.10(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is paid to the
Administrative Agent for the account of the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Administrative Agent for the
account of the Issuing Lender on demand an amount equal to the product of (i) such amount, times
(ii) the daily average Federal Funds Effective Rate during the period from and including the date
such payment is required to the date on which such payment
48
is immediately available to the Issuing
Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.10(a) is not made available to the Administrative Agent for the
account of the Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Facility. A certificate of the Issuing Lender
submitted to any L/C Participant (through the Administrative Agent) with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its
pro
rata
share of such payment in
accordance with Section 3.10(a), the Administrative Agent receives any payment related to such
Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account thereof, the
Administrative Agent, will distribute to such L/C Participant its
pro
rata
share
thereof;
provided
,
however
, that in the event that any such payment received by Administrative
Agent, shall be required to be returned by the Administrative Agent, such L/C Participant shall
return to the Administrative Agent for the account of the Issuing Lender the portion thereof
previously distributed by the Administrative Agent.
3.11.
Reimbursement Obligation of the Borrower
. The Borrower agrees to reimburse the
Issuing Lender on the Business Day next succeeding the Business Day on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any Letter of Credit and
paid by the Issuing Lender for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other actual out-of-pocket costs or expenses incurred by the Issuing Lender in
connection with such payment. Each such payment shall be made to the Issuing Lender at its address
for notices referred to herein in Dollars and in immediately available funds. Interest shall be
payable on any such amounts from the date on which the relevant draft is paid until payment in full
at the rate set forth in (i) until the Business Day next succeeding the date of the relevant
notice, Section 4.5(b) and (ii)
thereafter, Section 4.5(c). Each drawing under any Letter of Credit shall (unless an event of
the type described in Section 9(f) or 9(g) shall have occurred and be continuing, in which case the
procedures specified in Section 3.10 for funding by L/C Participants shall apply) constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to Section 3.2 of Base
Rate Loans (or, at the option of the Administrative Agent and the Swingline Lender in their sole
discretion, a borrowing pursuant to Section 3.4 of Swingline Loans) in the amount of such drawing.
The Borrowing Date with respect to such borrowing shall be the first date on which a borrowing of
Revolving Loans (or, if applicable, Swingline Loans) could be made, pursuant to Section 3.2 or, if
applicable, Section 3.4), if the Administrative Agent had received a notice of such borrowing at
the time the Administrative Agent receives notice from the Issuing Lender of such drawing under
such Letter of Credit.
3.12.
Obligations Absolute
. The Borrowers obligations under Section 3.11 shall be absolute
and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that the Borrower may have or have had against the
49
Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrowers Reimbursement
Obligations under Section 3.11 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such documents shall in fact
prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Issuing Lender. The Borrower agrees that any action
taken or omitted by the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial Code of the State of
New York, shall be binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
3.13.
Letter of Credit Payments
. If any draft shall be presented for payment under any
Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the Administrative
Agent of the date and amount thereof. The responsibility of the Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be limited to determining
that the documents (including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.
3.14.
Applications
. To the extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
4.1.
Optional Prepayments
.
(a) The Borrower may at any time and from time to time prepay the Loans in whole or in part,
without premium or penalty, except as otherwise provided in the first sentence of Section 4.1(b),
(
Optional Prepayment
) upon notice delivered to the Administrative Agent no later than
12:00 Noon, New York City time, three Business Days prior thereto in the case of Eurodollar Loans
and no later than 12:00 Noon, New York City time, one Business Day prior thereto in the case of
Base Rate Loans, which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or Base Rate Loans;
provided
, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. Partial prepayments of
Term Loans and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof. Partial prepayments of
50
Swingline Loans shall be in an aggregate principal amount
of $100,000 or a whole multiple thereof.
(b) Each Optional Prepayment in respect of the Tranche B Term Loans on or after the
Restatement Date but prior to the first anniversary of the Restatement Date shall be accompanied by
a prepayment premium equal to 1% of the principal amount of such Optional Prepayment. No
prepayment premium shall be payable with respect to any Optional Prepayment on or after the first
anniversary of the Restatement Date.
4.2.
Mandatory Offers to Prepay
. (a) If any Indebtedness (other than Excluded
Indebtedness) shall be issued or incurred by the Borrower or any Subsidiary Guarantor, Borrower
shall make an offer pursuant to the terms set forth in Section 4.2(d) to prepay the Term Loans in
an amount equal to 100% of the Net Cash Proceeds of such Indebtedness and such prepayment shall be
applied as set forth in Section 4.2(c) toward the prepayment of the Term Loans within ten Business
Days after receipt of such Net Cash Proceeds.
(b) If on any date the Borrower or any Subsidiary Guarantor shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in
respect thereof, such Borrower shall make an offer pursuant to the terms set forth in Section
4.2(d) to prepay the Term Loans in an amount equal to 100% of the Net Cash Proceeds of such Asset
Sale or Recovery Event and such prepayment shall be applied as set forth in Section 4.2(c) toward
the prepayment of the Term Loans within ten Business Days after receipt of such Net Cash Proceeds;
provided
, that, on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(c).
(c) Amounts to be applied in connection with prepayments made pursuant to Section 4.2 shall be
applied to the prepayment of the principal amount of the Term Loans ratably between the Tranche B
Term Loans and the Incremental Term Loans based on the outstanding principal amounts thereof at
such time. The application of any prepayment pursuant to Section 4.2 shall be made,
first
,
to Base Rate Loans and,
second
, to Eurodollar Loans. Each prepayment of the Term Loans
under Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid. Each prepayment of the Term Loans shall be applied ratably to the respective
remaining installments thereof.
(d) Anything contained herein to the contrary notwithstanding, in the event Borrower is
required to make any mandatory prepayment pursuant to Section 4.2(a) or (b) (a
Waivable
Mandatory Prepayment
) of the Term Loans, not less than three Business Days prior to the date
(the
Required Prepayment Date
) on which the Borrower is required to make such Waivable
Mandatory Prepayment, the Borrower shall notify Administrative Agent of the amount (or its good
faith estimate thereof) of such prepayment, and the Administrative Agent will promptly thereafter
notify each Lender holding an outstanding Term Loan of the amount of such Lenders pro rata share
of such Waivable Mandatory Prepayment and of such Lenders option to refuse such amount. Each such
Lender may exercise such option by giving written notice to the Borrower and the Administrative
Agent of its election to do so on or before the first Business Day prior to the Required Prepayment
Date (it being understood that any Lender which does not
51
notify the Borrower and the Administrative
Agent of its election to exercise such option on or before the first Business Day prior to the
Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such
option).
(e) Concurrently with any prepayment of the Term Loans pursuant to Sections 4.2(a) and (b),
the Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable Net Cash Proceeds. In the event that
the Borrower shall subsequently determine that the actual amount received exceeded the amount set
forth in such certificate, the Borrower shall promptly make an additional prepayment of the Term
Loans in an amount equal to such excess, and the Borrower shall concurrently therewith deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such
excess.
(f) Upon its receipt of the proceeds of the Tranche B Term Loans, the Borrower, in accordance
with its voluntary election delivered to the Administrative Agent in connection with the
Refinancing, shall apply such proceeds, together with other funds if necessary, in an amount
sufficient to (i) prepay in full the Original Term Loans that are not being deemed converted into
or exchanged for Tranche B Term Loans, (ii) pay all accrued and unpaid interest and fees, if any,
on all Non-Renewed Tranche B Term Loans and all Original Term Loans held by Original Term Lenders
that are not Continuing Lenders, (iii) pay to each Original Term Lender that is not a Continuing
Lender all amounts then due and owing as a result of the prepayment of such Original Term Lenders
Original Term Loans and (iv) pay all other
Obligations then due and owing to the Original Term Lenders that are not Continuing Lenders,
in their capacity as such, under the Original Credit Agreement.
4.3.
Conversion and Continuation Options
.
(a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the Business Day preceding the proposed conversion date,
provided
that any
such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative Agent prior irrevocable notice of such election no later than
11:00 A.M., New York City time, on the Business Day preceding the proposed conversion date (which
notice shall specify the length of the initial Interest Period therefor),
provided
that no Base
Rate Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the Majority Facility
Lenders in respect of such Facility have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term
Interest
Period
set forth in Section 1.1, of the length of the next Interest Period to be applicable to
such Loans,
provided
that no Eurodollar Loan under a particular Facility may be continued as such
when any
52
Event of Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and
provided
,
further
, that if the Borrower shall fail
to give any required notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base
Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
4.4.
Limitations on Eurodollar Tranches
. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall be
outstanding at any one time.
4.5.
Interest Rates and Payment Dates
. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus
the Applicable Margin;
provided
, that Other Term Loans that are Eurodollar Loans shall bear
interest for each day during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such date plus the interest rate margin applicable thereto.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin;
provided
, that Other Term Loans that are Base Rate Loans shall bear interest
at a rate per annum equal to the Base Rate plus the interest rate margin applicable thereto.
(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section
plus
2%, or (y) in the case of Reimbursement Obligations, the rate applicable to Base Rate
Loans under the Revolving Facility,
plus
2%, and (ii) if all or a portion of any interest payable
on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base
Rate Loans under the relevant Facility
plus
2% (or, in the case of any such other amounts that do
not relate to a particular Facility, the rate then applicable to Base Rate Loans under the
Revolving Facility
plus
2%), in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided
that interest
accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.
53
4.6.
Computation of Interest and Fees
.
(a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from
a change in the Base Rate or the Applicable Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and
the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 4.5.
4.7.
Inability to Determine Interest Rate
. If prior to the first day of any Interest
Period:
(a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received written notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base
Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted,
on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.
4.8.
Pro Rata Treatment and Payments
.
(a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the
54
Commitments of the Lenders shall be made
pro
rata
according to the respective Tranche B Term Percentages, Incremental Term
Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective outstanding principal
amounts of Tranche B Term Loans and Incremental Term Loans then held by the relevant Lenders
(except as otherwise provided in Section 4.2(f)). Amounts repaid or prepaid on account of the Term
Loans may not be reborrowed.
(c) Each payment (including each payment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made
pro
rata
according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then applicable rate during such
extension.
(e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent on the Borrowing Date, and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount on the Borrowing Date. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to
the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the
greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation for the period until such
Lender makes such amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If other than in connection with the
Refinancing such Lenders share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant
55
Facility, on demand, from the Borrower. In addition to the
rights described above, in the event that the Administrative Agent shall make available to the
Borrower all or any portion of the Term Loans of any Lender and such Lender shall fail to make
available to the Administrative Agent a corresponding amount by 5:00 P.M. New York City time within
one Business Day of extension of credit, the Administrative Agent in its sole discretion shall be
entitled to immediately and without further action on the part of such Lender register a transfer
of such Lenders Term Loans to a replacement Lender, which shall be the Administrative Agent. The
Administrative Agent agrees to purchase any such Term Loans at par and in accordance with Section
11.6 (other than the requirement for the signature of the defaulting Lender on the Assignment and
Assumption in connection with such transfer). In addition to any other remedies
the Borrower or the Administrative Agent may have against such defaulting Lender, the
Administrative Agent shall be entitled to recover from such defaulting Lender the difference (if
positive) between par and the amount for which it is able to sell such purchased Term Loans in the
secondary market.
(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective
pro
rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.
4.9.
Requirements of Law
.
(a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it (except
for Non-Excluded Taxes and Taxes on the net income of such Lenders), or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 4.10 and changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
56
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation by the relevant Governmental Authority
or application thereof or compliance by such Lender or any corporation controlling such Lender with
any request or directive regarding capital adequacy (whether or not having the force of law) from
any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lenders or such corporations capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or compliance (taking into
consideration such Lenders or such corporations policies with respect to capital adequacy) by an
amount reasonably deemed by such Lender to be material, then from time to time, after submission by
such Lender to the Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction.
(c) A certificate, accompanied by such supporting information as Borrower may reasonably
request, as to any additional amounts payable pursuant to this Section submitted by any Lender to
the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not
be required to compensate a Lender pursuant to this Section for any amounts incurred more than six
months prior to the date that such Lender notifies the Borrower of such Lenders intention to claim
compensation therefor;
provided
that, if the circumstances giving rise to such claim have a
retroactive effect, then such six-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Term Loans and all other amounts payable
hereunder.
4.10.
Taxes
.
(a) All payments made by the Borrower under this Agreement shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net
income taxes, franchise taxes (imposed in lieu of net income taxes) and other similar Taxes imposed
on any Agent or any Lender as a result of a present or former connection between such Agent or such
Lender and the jurisdiction of the
57
Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising solely
from such Agent or such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings (
Non-Excluded
Taxes
) or Other Taxes are required to be withheld from any amounts payable to any Agent or any
Lender
hereunder, the amounts so payable to such Agent or such Lender shall be increased to the
extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement,
provided
,
however
, that the Borrower shall not be required to increase
any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lenders failure to comply with the requirements of paragraph (d) or (e) of
this Section or (ii) that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement, except to the extent that such
Lenders assignor (if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its own account or for
the account of the relevant Agent or Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes (after receipt of notice that such Non-Excluded Taxes or
Other Taxes are due) when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agents and the Lenders for any incremental taxes, interest or penalties that
may become payable by any Agent or any Lender as a result of any such failure, except to the extent
such failure results from any Agents or Lenders gross negligence or willful misconduct.
(d) Each Lender (or Transferee) that is not a U.S. Person as defined in Section 7701(a)(30)
of the Code (a
Non-U.S. Lender
) shall deliver to the Borrower and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of portfolio interest, a statement
substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S.
Lender on or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower
58
at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of
this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law and as reasonably requested in writing by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate,
provided
that such Lender is legally entitled to complete,
execute and deliver such documentation and in such Lenders judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(f) If any Administrative Agent or any Lender determines, in its sole discretion,
that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 4.10, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section
4.10 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of such Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund) within ten (10)
Business Days of such determination;
provided
, that the Borrower, upon the request of such Agent or
such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the
event such Agent or such Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require any Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems confidential) to the
Borrower or any other Person .
(g) The agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
4.11.
Indemnity
. The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense that such Lender may sustain or incur as a consequence of (a)
default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last
day of an Interest Period with respect thereto. Such indemnification shall include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue
59
to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
4.12.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 4.9 or 4.10(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event;
provided
, that such designation is made on terms that, in
the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no
economic, legal or regulatory disadvantage, and
provided
,
further
, that nothing in this Section
shall affect or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 4.9 or 4.10(a).
4.13.
Replacement of Lenders
. The Borrower shall be permitted to replace any Lender that
(a) requests reimbursement for amounts owing pursuant to Section 4.9, 4.10(a) or 4.15 or (b)
defaults in its obligation to make Loans hereunder, with a replacement financial institution;
provided
that (i) such replacement does not conflict with any Requirement of Law and is an Eligible
Assignee, (ii) no Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken no action under
Section 4.12 so as to eliminate the continued need for payment of amounts owing pursuant to Section
4.9 or 4.10(a), (iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the
Borrower shall be liable to such replaced Lender under Section 4.11 if any Eurodollar Loan owing to
such replaced Lender shall be purchased other than on the last day of the Interest Period relating
thereto, (vi) the replacement financial institution, if not already a Revolving Lender and if it
is to be a Revolving Lender upon such replacement, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 11.6 (
provided
that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 4.9 or 4.10(a), as the case may be, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.
4.14.
Evidence of Debt
.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing Indebtedness of the Borrower to such Lender resulting from each
60
Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.
(b) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant
to Section 11.6(b), and a subaccount therein for each Lender, in which shall be recorded (i) the
amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and
each Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the
amount of any sum received by the Administrative Agent hereunder from the Borrower and each
Lenders share thereof.
(c) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 4.14(a) shall, to the extent permitted by applicable law, be
prima
facie
evidence of the existence and amounts of the obligations of the Borrower therein recorded absent
manifest error;
provided
,
however
, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any
Term Loans, Revolving Loans or Swingline Loans, as the case may be, of such Lender, substantially
in the form of Exhibit G-1, G-2 or G-3, respectively, with appropriate insertions as to date and
principal amount.
4.15.
Illegality
. Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lenders
Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with respect to such Loans
or within such earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period with respect thereto,
the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section
4.11.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to make the Loans (other
than Incremental Term Loans) and issue or participate in the Letters of Credit, the Borrower hereby
represents and warrants to each Agent and each Lender that:
5.1.
Financial Condition
.
(a) The unaudited pro forma condensed consolidated balance sheet of Superholdings and its
Consolidated Subsidiaries as of June 30, 2006 (including the notes thereto) (the
Pro Forma
Balance Sheet
), a copy of which has heretofore been made available to each
61
Lender, has been
prepared giving effect (as if such events had occurred on such date) to (i) the consummation of the
Restructuring, (ii) the Loans made on the Closing Date and the Senior Notes issued on the Closing
Date and the use of proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing. The Pro Forma Balance Sheet has been prepared based on the best information
available to Superholdings as of the date of delivery thereof, and presents fairly in all material
respects on a pro forma basis the estimated financial position of Superholdings and its
Consolidated Subsidiaries as of June 30, 2006, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(b) The audited consolidated balance sheet of Superholdings as of December 31, 2005, and the
consolidated statements of income and comprehensive income and stockholders equity for the fiscal
year ended on such date, reported on by and accompanied by unqualified reports from Deloitte &
Touche LLP, present fairly in all material respects the consolidated financial condition of
Superholdings as of such date, and the consolidated results of its operations and its consolidated
cash flows for the fiscal year then ended. The unaudited condensed consolidated balance sheet of
Superholdings as of June 30, 2006, and the related unaudited condensed consolidated statements of
income and comprehensive income and cash flows for the six-month period ended on such date, present
fairly in all material respects the consolidated financial condition of Superholdings as of such
date, and the consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (subject to normal year end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). As of the Closing Date, giving effect
to the Transactions (as defined in the Original Credit Agreement) and the issuance of the Senior
Notes, no Group Member had any material Guarantee Obligations (other than Guarantee Obligations
arising under or in connection with the Original Credit Agreement or the Senior Notes), contingent
liabilities and liabilities for taxes, or any long term leases or unusual forward or long term
commitments, including any interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph. During the period from June 30, 2006 to and including
the Restatement Date there has been no Disposition by the Borrower of any material part of its
business or property.
5.2.
No Change
. Since June 30, 2006, there has been no event, development or circumstance
that has had or could reasonably be expected to have a Material Adverse Effect.
5.3.
Corporate Existence; Compliance with Law
. Each Group Member is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority, and
has all material governmental licenses, authorizations, consents and approvals necessary, to
own its assets and to carry on its business as now conducted, and is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is required, except where
failure to have such power, authority, licenses, authorizations, consents, approvals and
qualifications could not reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 5.3, each Group Member is in compliance with all Governmental Requirements
applicable to it or its Property and all agreements and other instruments binding upon it or its
Property, and possesses all licenses, permits, franchises, exemptions, approvals and other
Governmental Authorizations necessary for
62
the ownership of its Property and the conduct of its
business, except in any of the foregoing cases where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.4.
Power; Authorization; Enforceable Obligations
. The Transactions are within each Group
Members corporate, limited liability company or partnership (as applicable) powers and have been
duly authorized by all necessary corporate, limited liability company or partnership (as
applicable) and, if required, stockholder, member or partner (as applicable) action (including,
without limitation, any action required to be taken by any class of directors of the Borrower,
whether interested or disinterested, in order to ensure the due authorization of the Transactions).
Each Loan Document has been duly executed and delivered by each Group Member thereto and
constitutes a legal, valid and binding obligation of such Group Member enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law. The Transactions do not require any
consent or approval of, registration or filing with, or any other action by, any Governmental
Authority or any other third Person (including shareholders, or any class of directors, whether
interested or disinterested, of the Borrower or any other person), nor is any such consent,
approval, registration, filing or other action necessary for the validity or enforceability of any
Loan Document or the consummation of the Transactions, except (i) such as have been obtained or
made and are in full force and effect, (ii) those third party approvals or consents listed on
Schedule 5.4 which, if not made or obtained, would not cause a Default or Event of Default
hereunder, (iii) such consents, approvals, registrations, filings or other actions, other than
those specified in clause (iv) below, the absence of which or failure to obtain, could not
reasonably be expected to have a Material Adverse Effect, (iv) to the extent that the exercise of
certain of the rights, powers, privileges and remedies of the Agents or the Lenders may constitute
a de jure or de facto voluntary or involuntary assignment of an FCC license or a voluntary or
involuntary transfer of de jure or de facto control of the holder of any such FCC license, the
FCCs prior consent thereto, and (v) the licenses issued by the FCC pursuant to the Auction 66
Acquisition have not yet been issued via a Final Order.
5.5.
No Legal Bar
. The execution, delivery and performance of this Agreement and the other
Loan Documents, the issuance of the Letters of Credit and the borrowings hereunder and the use of
the proceeds thereof (a) will not violate any applicable law, regulation or any order of any
Governmental Authority (except for any violation that could not reasonably be expected to have
a Material Adverse Effect) or the charter, by-laws or other organizational documents of any
Group Member, (b) will not violate or result in a default under any Material Contractual Obligation
binding upon any Group Member or its Properties, or give rise to a right thereunder to require any
payment to be made by such Group Member (except for any of the foregoing that could not reasonably
be expected to have a Material Adverse Effect) and (c) will not result in the creation or
imposition of any Lien on any Property of any Group Member (other than Liens securing the
Obligations hereunder).
5.6.
Litigation
. Except as set forth on Schedule 5.6, there are no actions, suits,
investigations or proceedings by or before any arbitrator or Governmental Authority pending against
or, to the knowledge of the Borrower, threatened in writing against or affecting any Group Member
(i) as to which there is a reasonable possibility of an adverse determination
63
that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect or (ii) that involve any Loan Document or the Transactions.
5.7.
No Default
. No Group Member is in default under or with respect to any of its
Material Contractual Obligations in any respect that could reasonably be expected to have a
Material Adverse Effect and no Default or Event of Default has occurred and is continuing.
5.8.
Ownership of Property; Liens, Etc.
(a) Except as disclosed on Schedule 5.8, each Group Member has good and defensible title to
its Properties which constitute real property and good title to all its personal Properties, in
each case, (i) free and clear of all Liens except Liens permitted by Section 8.3 or (ii) where the
exceptions to such title should not reasonably be expected to result in a Material Adverse Effect.
(b) All material leases and agreements necessary for the conduct of the business of each Group
Member are valid and subsisting, in full force and effect, and there exists no default or event or
circumstance which with the giving of notice or the passage of time or both would give rise to a
default under any such lease or leases and which could reasonably be expected to result in a
Material Adverse Effect.
(c) The rights and Properties presently owned, leased or licensed by each Group Member
including, without limitation, all easements and rights of way, include all rights and Properties
necessary to permit such Group Member to conduct its business in all respects in the same manner as
its business has been conducted prior to the date hereof, except where the failure to have such
rights and Properties could not reasonably be expected to have a Material Adverse Effect.
(d) None of the Group Members or any of their respective Properties or assets are subject to
any Liens other than Liens permitted by Section 8.3, and such Liens as do not materially interfere
with such Group Members ability to conduct its business and, in the aggregate, as could not
reasonably be expected to have a Material Adverse Effect.
5.9.
Intellectual Property
. Except as disclosed in Schedule 5.9, each Group Member owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other Intellectual Property
material to its business, and, to the extent the Group Member holds title to such Intellectual
Property, the use thereof by such Group Member does not infringe upon the rights of any other
Person, except for any such failure to own, be licensed or infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.10.
Taxes
. Each Group Member has timely filed or caused to be filed all federal and other
material Tax returns and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Group Member has set aside on its books adequate
reserves in accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect. The
64
charges, accruals and reserves
on the books of the Group Members in respect of Taxes and other governmental charges are, in the
reasonable opinion of the Borrower, adequate. As of the Restatement Date, no Tax Lien has been
filed and, to the knowledge of the Borrower, no claim is being asserted with respect to any such
Tax. As of each date this representation is made after the Restatement Date, no Tax Lien has been
filed and, to the knowledge of the Borrower, no claim is being asserted with respect to any such
Tax, in each case that does not constitute an Excepted Lien.
5.11.
Federal Regulations
. The Group Members are not engaged principally, or as one of its
or their important activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying Margin Stock. No part of the proceeds of
any Loan will be used for any purpose which violates the provisions of Regulations T, U or X of the
Board. None of the Group Members is subject to any statute, rule or regulation limiting its
ability to incur indebtedness for borrowed money.
5.12.
Labor Matters
. Except as, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group
Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment
made to employees of any Group Member have not been in violation of the Fair Labor Standards Act or
any other applicable Requirement of Law dealing with such matters; and (c) all payments due from
any Group Member on account of employee health and welfare insurance have been paid or accrued as a
liability on the books of such Group Member.
5.13.
ERISA
.
(a) Except as could not reasonably be expected to result in a Material Adverse Effect, the
Group Members and each ERISA Affiliate have complied in all respects with ERISA and, where
applicable, the Code regarding each Plan.
(b) Except as could not reasonably be expected to result in a Material Adverse Effect, each
Plan is, and has been, maintained in compliance with ERISA and, where applicable, the Code.
(c) To the best knowledge of the Borrower no act, omission or transaction has occurred which
could reasonably be expected to result in imposition on any Group Member or any ERISA Affiliate
(whether directly or indirectly) of (i) either a civil penalty assessed pursuant to subsections
(c), (i) or (l) of section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of
the Code or (ii) breach of fiduciary duty liability damages under section 409 of ERISA.
(d) No Plan or any trust created under any such Plan has been terminated in the six
consecutive year period ending on the date hereof and no steps have been taken to terminate any
plan. No liability to the PBGC (other than for the payment of current premiums which are not past
due) has been or is expected to be incurred by any Group Member or any ERISA Affiliate with respect
to any Plan. No ERISA Event with respect to any Plan has occurred.
65
(e) Full payment when due has been made of all amounts which any Group Member or any ERISA
Affiliate is required under the terms of each Plan or applicable law to have paid as contributions
to such Plan as of the date hereof, and no accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the Code), whether or not waived, exists with respect to any Plan.
(f) The actuarial present value of the benefit liabilities under each Plan does not, as of the
end of the Borrowers most recently ended Fiscal Year, exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable
to such benefit liabilities by any amount in excess of $10,000,000. The term actuarial present
value of the benefit liabilities shall have the meaning specified in section 4041 of ERISA. No
contribution failure has occurred with respect to any Plan sufficient to give rise to a lien under
section 302(f) of ERISA in an amount equal to $10,000,000 or more.
(g) Neither any Group Member nor any ERISA Affiliate sponsors, maintains, or contributes to an
employee welfare benefit plan, as defined in section 3(1) of ERISA, including, without limitation,
any such plan maintained to provide benefits to former employees of such entities, that may not be
terminated by any Group Member or any ERISA Affiliate in its sole discretion at any time without
any material current liability in excess of $10,000,000.
(h) Neither any Group Member nor any ERISA Affiliate sponsors, maintains or contributes to, or
has at any time in the six-year period immediately preceding the date hereof sponsored, maintained
or contributed to, any Multiemployer Plan.
(i) Neither any Group Member nor any ERISA Affiliate is required to provide security under
section 401(a)(29) of the Code due to a Plan amendment that results in an increase in current
liability for the Plan.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, there
are no going-concern unfunded actuarial liabilities, past service unfunded liabilities or solvency
deficiencies with respect to any employee benefit plan that is exempt from ERISA by reason of
section 4(b)(4) thereof and is sponsored, maintained, or contributed to by any Group Member or any
ERISA affiliate.
5.14.
Investment Company Act
. No Group Member is an investment company or a company
controlled by an investment company, within the meaning of, or subject to regulation under, the
Investment Company Act of 1940, as amended.
5.15.
Subsidiaries
. Except as set forth on Schedule 5.15 or as disclosed to the
Administrative Agent by the Borrower in writing from time to time after the Restatement Date,
Holdings has no Subsidiaries, each Subsidiary of Holdings is wholly owned by Holdings or its
Subsidiaries and Holdings has no Subsidiaries organized in a jurisdiction outside the United
States.
5.16.
Use of Proceeds
. The proceeds of the Tranche B Term Loans shall be used to consummate
the Refinancing and refinance in full the Refinanced Indebtedness in accordance with the exercise
by the Borrower of its optional prepayment rights in respect thereof and to pay related premiums,
fees and expenses and for general corporate purposes. The
66
proceeds of any Incremental Term Loans
shall be used for general corporate purposes. The proceeds of the Revolving Loans shall be used,
together with the proceeds of the Swingline Loans and the Letters of Credit, for general corporate
purposes.
5.17.
Environmental Matters
. Except as could not in the aggregate, be reasonably expected
to have a Material Adverse Effect (or with respect to (c), (d) and (e) below, where the failure to
take such actions could not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect):
(a) neither any Property of any Group Member nor the operations conducted thereon violate (i)
any decree, order or requirement of any Governmental Authority or (ii) any Environmental Laws or
any related Governmental Authorization.
(b) no Property of any Group Member nor the operations currently conducted thereon or, to the
knowledge of the Borrower, by any prior owner or operator of such Property or operation, are in
violation of any Environmental Law or any remedial obligations under Environmental Law.
(c) all notices, or similar Government Authorizations, if any, required to be obtained or
filed in connection with the operation or use of any and all Property of each Group Member,
including, without limitation, past or present treatment, storage, disposal or Release of a
Hazardous Material or solid waste into the environment, have been duly obtained or filed, and each
Group Member is in compliance with the terms and conditions of all such notices, and Government
Authorizations.
(d) all Hazardous Materials and solid waste, if any, generated at any and all Property of any
Group Member have in the past been Released, stored, transported, treated and disposed of in
accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment
to public health or welfare or the environment.
(e) the Borrower has taken all steps reasonably necessary to determine and has determined that
no Hazardous Materials or solid waste, have been disposed of or otherwise Released and there has
been no threatened Release, on or to any Property of any Group Member except in compliance with
Environmental Laws and so as not to pose an imminent and substantial endangerment to public health
or welfare or the environment.
(f) No Group Member has any known contingent liability or Remedial Work in connection with any
Release or threatened Release into the environment.
(g) No Hazardous Material Activity has been conducted either by or on behalf of Borrower, or
on any Property of any Group Member in a location or manner that could require any Remedial Work.
5.18.
Accuracy of Information, etc.
The Borrower has made available to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it
or any of its Subsidiaries is subject, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the other reports, financial statements,
certificates or other information (including, without limitation, the
67
Confidential Information
Memorandum but subject to the qualifications, limitations, exceptions and assumptions set forth
therein) furnished by or on behalf of any Group Member to the Administrative Agent or any Lender or
any of their Affiliates in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or under any other Loan Document (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in the light of the
circumstances under which they were made, not misleading;
provided
that with respect to financial
statements other than projected financial information, the Borrower represents only that such
financial statements present fairly in all material respects the consolidated financial condition
of Superholdings as at the dates of such financial statements;
provided, further
, that with respect
to projected financial information and any other projections, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time made.
5.19.
Security Documents
. (a) The Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof. In the case of the
Pledged Stock described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the
other Collateral described in the Guarantee and Collateral Agreement in which a Lien can be
perfected by the filing of a financing statement, when financing statements specified on Schedule
5.19(a) in appropriate form are filed in the offices specified on Schedule 5.19(a), the Guarantee
and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Group Members in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case
prior and superior in right to any other Person (except, in the case of Collateral other than
Pledged Stock, Liens permitted by Section 8.3 and, in the case of Collateral that constitutes
Pledged Stock, Liens described in clauses (a), (i) and (j) of the definition of Excepted Liens).
(b) Each of the Mortgages is effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof, and when the Mortgages are filed in the offices specified
on Schedule 5.19(b), each such Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Group Members in the Mortgaged Properties and the
proceeds thereof, as security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (except Liens permitted by Section 8.3). As
of the Restatement Date, no Group Member owns any parcel of real property that has a value in
excess of $10,000,000.
5.20.
Solvency
. Each Group Member is, and after giving effect to the Transaction and the
incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith
will be, Solvent.
5.21.
Maintenance of Properties
. Except for such acts or failures to act as could not be
reasonably expected to have a Material Adverse Effect, the Group Members Properties have been
maintained, operated and developed in a good and workmanlike manner
68
and in conformity with all
Governmental Requirements and in conformity with the provisions of all leases, subleases or other
contracts to which they are bound. All material improvements, fixtures and equipment owned in
whole or in part by any Group Member that are necessary to conduct normal operations (ordinary wear
and tear excepted) are being maintained in a state adequate to conduct normal operations, and with
respect to such of the foregoing which are operated by such Group Member, in a manner consistent
with such Group Members past practices (other than those the failure of which to maintain in
accordance with this Section 5.21 could not reasonably be expect to have a Material Adverse
Effect).
5.22.
Public Holding Utility Act
. No Group Member is a holding company, or a subsidiary company of a holding company,
or an affiliate of a holding company or of a subsidiary company of a holding company, or a
public utility within the meaning of, or subject to regulation under, the Public Utility Holding
Company Act of 2005, as amended.
5.23.
Certain Fees
. No brokers or finders fee or commission will be payable with respect
hereto or any of the Transactions.
5.24.
Certain Documents
. The Borrower has delivered to the Administrative Agent a complete
and correct copy of the Royal Street Credit Agreement, the Royal Street Security Agreement and the
Royal Street Pledge Agreement and the Senior Note Indenture, including any material amendments,
supplements or modifications with respect to any of the foregoing.
5.25.
Regulation H
. Except as set forth on Schedule 5.19(b) as it may be supplemented from
time to time, no Mortgage encumbers improved real property that is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having special flood
hazards and in which flood insurance has been made available under the National Flood Insurance Act
of 1968.
SECTION 6. CONDITIONS PRECEDENT
6.1.
Conditions to the Restatement Date
. The effectiveness of this Agreement and the
amendment and restatement evidenced hereby, and the agreement of each Tranche B Term Lender to make
the extension of credit requested to be made by it is subject to the satisfaction (or waiver in
writing in accordance with Section 11.1), prior to or concurrently with the making of such
extension of credit on the Restatement Date, of the following conditions precedent:
(a)
Loan Documents
. The Administrative Agent shall have received (i) this Agreement,
or, in the case of each Tranche B Term Lender, an Addendum, executed and delivered by each Agent,
the Borrower, the Required Lenders and each Person that is a Tranche B Term Lender as of the
Restatement Date after giving effect to the Refinancing, and (ii) the Reaffirmation Agreement,
substantially in the form of Exhibit A hereto, executed and delivered by each Loan Party on the
Restatement Date.
In the event that any one or more Persons have not executed and delivered an Addendum on the
date scheduled to be the Restatement Date (each such Person being referred to
69
herein as a
Non-Executing Person
), the condition referred to in clause (i) above shall nevertheless
be deemed satisfied if on such date the Borrower and the Administrative Agent shall have designated
one or more Eligible Assignees (the
Designated Lenders
) to assume, in the aggregate, all
of the Commitments that would have been held by the Non-Executing Persons
(subject to each such Designated Lenders consent and its execution and delivery of an
Addendum).
(b)
Concurrent Transactions
. The Borrower shall have delivered notice to the
Administrative Agent in accordance with the terms of Section 4.1 of the Original Credit Agreement
stating (i) the Borrowers intent to, as the case may be, optionally prepay or be deemed to have
prepaid in full the Original Term Loans outstanding under the Original Credit Agreement, and (ii)
that the Restatement Date shall be the effective date of such prepayment or deemed repayment.
(c)
Approvals
. All governmental and other material third party approvals necessary,
or in the reasonable discretion of the Administrative Agent, advisable in connection with the
Transactions and the continuing operations of the Group Members shall have been obtained and be in
full force and effect (except to the extent that the exercise of certain of the rights, powers,
privileges and remedies of the Agents or the Lenders may constitute a de jure or de facto voluntary
or involuntary assignment of an FCC license or a voluntary or involuntary transfer of de jure or de
facto control of the holder of any such FCC license), and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose materially adverse conditions on the Transactions or the
financing contemplated hereby.
(d)
Fees
. The Lenders and the Agents shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including the actual and reasonable
fees and expenses of outside legal counsel), on or before the Restatement Date. All such amounts
will be paid with proceeds of Loans made on the Restatement Date and will be reflected in the
funding instructions given by the Borrower to the Administrative Agent on or before the Restatement
Date.
(e)
Restatement Date Certificate
. The Administrative Agent shall have received a
certificate of the Borrower, dated the Restatement Date, substantially in the form of Exhibit C (or
such other form acceptable to the Administrative Agent).
(f)
Legal Opinions
. The Administrative Agent shall have received the executed legal
opinion of Baker Botts L.L.P., counsel to the Loan Parties, substantially in the form of Exhibit F.
(g)
Secretarys Certificate
. The Administrative Agent shall have received a
certificate of each Group Member, dated the Restatement Date, substantially in the form of Exhibit
K, with appropriate insertions and attachments including (i) the certificate of incorporation of
each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of
organization of such Loan Party (or a certification that there have been no changes to such
certificate of incorporation since its delivery on the Closing Date), and (ii) a long form good
standing certificate for each Loan Party from its jurisdiction of organization.
70
(h)
Non-Continuing Lenders
. The Administrative Agent shall have received written
verification from the Borrower acceptable to the Administrative Agent that the Original
Term Lenders that are not Continuing Lenders have been, or will be, paid in full all amounts
required to be paid to them by the Borrower pursuant to Section 4.2(f).
(i)
Solvency Certificate
. The Administrative Agent shall have received a solvency
certificate of a Financial Officer of the Loan Parties substantially in the form of
Exhibit
J
.
(j)
Mortgages, etc
. The Administrative Agent shall have received a Mortgage with
respect to each Mortgaged Property, executed and delivered by a duly authorized officer of each
party thereto.
(i) If requested by the Administrative Agent, the Administrative Agent shall have
received, and the title insurance company issuing the policy referred to in clause (iii)
below (the
Title Insurance Company
) shall have received, maps or plats of an
as-built survey of the sites of the Mortgaged Properties certified to the Administrative
Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a
date reasonably satisfactory to the Administrative Agent and the Title Insurance Company by
an independent professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and the surveys on
which they are based shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and shown on such maps,
plats or surveys the following: (A) the locations on such sites of all the buildings,
structures and other improvements and the established building setback lines; (B) the lines
of streets abutting the sites and width thereof; (C) all access and other easements
appurtenant to the sites; (D) all roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and improvements on the
sites; (F) if the site is described as being on a filed map, a legend relating the survey to
said map; and (G) the flood zone designations, if any, in which the Mortgaged Properties are
located.
(ii) The Administrative Agent shall have received in respect of each Mortgaged Property
a mortgagees title insurance policy (or policies) or marked up unconditional binder for
such insurance. Each such policy shall (A) be in an amount reasonably satisfactory to the
Administrative Agent, but in no event greater than 110% of the Fair Market Value of such
Mortgaged Property; (B) be issued at ordinary rates; (C) insure that the Mortgage insured
thereby creates a valid first Lien on such Mortgaged Property free and clear of all defects
and encumbrances, except as disclosed therein; (D) name the Administrative Agent for the
benefit of the Secured Parties as the insured thereunder; (E) be in the form of ALTA Loan
Policy 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies), if available; (F)
contain such endorsements and
71
affirmative coverage as the Administrative Agent may
reasonably request and (G) be issued by title companies reasonably satisfactory to the
Administrative Agent (including
any such title companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent). The Administrative Agent shall have received evidence reasonably
satisfactory to it that all premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have been or will be paid.
(iii) If requested by the Administrative Agent, the Administrative Agent shall have
received (A) a policy of flood insurance that (1) covers any parcel of improved Mortgaged
Property that is located in a flood zone, (2) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably
allocable to such Mortgaged Property or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not later than the maturity of the Indebtedness
secured by such Mortgage and (B) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board.
(iv) The Administrative Agent shall have received a copy of all recorded documents
referred to, or listed as exceptions to title in, the title policy or policies referred to
in clause (ii) above and a copy of all other material documents affecting the Mortgaged
Properties.
(k)
Miscellaneous
. The Administrative Agent shall have received such other documents,
agreements, certificates and information as it shall reasonably request.
6.2.
Conditions to Each Extension of Credit
. The agreement of each Lender to make any
extension of credit (except, with respect to clause (a) hereof, the issuance of Letters of Credit
that, together with all other Letters of Credit issued pursuant to the exclusion permitted by this
parenthetical, do not exceed an aggregate stated amount of $500,000) requested to be made by it on
any date (including its initial extension of credit) is subject to the satisfaction (or waiver in
writing in accordance with Section 11.1) of the following conditions precedent:
(a)
Representations and Warranties
. Each of the representations and warranties made
by any Group Member in or pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects as of such
earlier date.
(b)
No Default
. No Default or Event of Default shall have occurred and be continuing
on such date or after giving effect to the extensions of credit requested to be made on such date.
Each borrowing (other than an Incremental Term Loan) by and issuance of a Letter of Credit on
behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower
72
as
of the date of such extension of credit that the conditions contained in this Section 6.2 have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or Agent hereunder,
the Borrower shall and shall cause each of its Subsidiaries to:
7.1.
Financial Statements
. Furnish to the Administrative Agent and each Lender (except for
those documents or other information posted to Intralinks by the Administrative Agent):
(a)
Annual Financial Statements
. As soon as available, but in any event in accordance
with then applicable law and not later than 90 days after the end of each Fiscal Year of
Superholdings commencing with the year ended December 31, 2006, Superholdings and its Consolidated
Subsidiaries audited consolidated balance sheet and related statements of income and comprehensive
income, stockholders equity and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte
& Touche LLP or other independent public accountants of recognized national standing (without a
going concern or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of Superholdings and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied
(except as approved by the Superholdings accountants and disclosed therein).
(b)
Quarterly Financial Statements
. As soon as available, but in any event in
accordance with then applicable law and not later than 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year of Superholdings commencing with the quarter ending March
31, 2007, in each case, Superholdings and its Consolidated Subsidiaries consolidated balance
sheet and related statements of income and comprehensive income, stockholders equity and cash
flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year,
setting forth in each case in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified
by one of its Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of Superholdings and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied (except as approved by
Superholdings accountants and disclosed therein), subject to normal year-end audit adjustments.
(c)
Statements of Reconciliation after Change in Accounting Principles
. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the audited financial statements of Superholdings for the Fiscal Year ended December 31, 2005, the
consolidated financial statements of Superholdings and its Consolidated Subsidiaries delivered
pursuant to Section 7.1(a) or 7.1(b) will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such subdivisions had no such
change in accounting principles and policies been made, then, together with the first
73
delivery of
such financial statements after such change, one or more statements of reconciliation
for all such prior financial statements in form and substance reasonably satisfactory to
Administrative Agent.
(d)
Reporting Company
. Notwithstanding the requirements of Sections 7.1(a) through
7.1(c), if Superholdings, Holdings or the Borrower is a public reporting company under the
Securities Exchange Act of 1934, as amended, the Borrower may, in lieu of the financial reports
required pursuant to Section 7.1(a) through 7.1(c), furnish only the quarterly and annual reports
filed with the SEC pursuant to Section 7.2(f).
(e)
Stand Alone Information
. In the case of financial statements delivered pursuant
to Sections 7.1(a), (b) and (d), if the combined operations of Superholdings and its Consolidated
Subsidiaries, excluding the operations of the Borrower and its Consolidated Subsidiaries and
excluding Cash and Cash Equivalents, would, if held by a single Subsidiary of the Borrower,
constitute a Significant Subsidiary of the Borrower, then the quarterly and annual financial
information required by the preceding paragraphs will include a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, of the financial
condition and results of operations of the Borrower and its Consolidated Subsidiaries separate from
the financial condition and results of operations of Superholdings and its other Consolidated
Subsidiaries;
provided,
that the requirements of this paragraph shall not apply if Superholdings
or Holdings files with the SEC the reports referred to in Section 7.1(d), and any such report
contains the information required in this clause (e).
7.2.
Certificates; Other Information
. Furnish to the Administrative Agent and each Lender
(or, in the case of clause (k), to the relevant Lender) (except for those documents or other
information posted to Intralinks by the Administrative Agent):
(a) concurrently with the delivery of any financial statements pursuant to Section 7.1(a) or
(b), a Compliance Certificate of a Financial Officer (i) containing all information and
calculations necessary for determining compliance with the covenants set forth in Section 8.18,
(ii) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event
of Default has occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (iii) stating whether any change in GAAP or in the application thereof
has occurred since Superholdings and its Consolidated Subsidiaries audited consolidated financial
statements for the year ended December 31, 2005 and, if any such change has occurred, specifying
the effect of such change on the financial statements accompanying such certificate, and (iv)
certifying that the amount of any New Market Losses added back to Consolidated EBITDA in connection
with any covenant calculation set forth in Section 8.18 is in accordance with the definition of New
Market Losses.
(b) as soon as available, and in any event no later than 45 days after the end of each Fiscal
Year of the Borrower, a detailed consolidated budget for the following Fiscal Year on a Fiscal
Quarter basis (including a projected consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the following Fiscal Year, the related consolidated statements of
projected cash flow, projected changes in financial position and projected income and a description
of the underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to such Fiscal Year
74
(collectively, the
Projections
), which Projections shall in each case be accompanied by a
certificate of an Authorized Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Authorized Officer has no reason to believe
that such Projections are incorrect or misleading in any material respect.
(c) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter
of Superholdings (90 days, in the case of the fourth Fiscal Quarter of any Fiscal Year), a
narrative discussion and analysis of the financial condition and results of operations of
Superholdings and its Consolidated Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, as compared to the
comparable periods of the previous year. Such analysis and narrative shall include operating data
of the nature disclosed by the Borrower in the Confidential Information Memorandum (which shall
include, without limitation, revenues, service revenues, ARPU, CPU, CPGA, adjusted EBITDA,
subscriber counts, penetration, churn, covered POPS and capital expenditures),
provided
that this
clause (c) shall not apply, and the Borrower need not comply with this clause (c), at any time that
Superholdings, Holdings or the Borrower is then a reporting company under the Securities Exchange
Act of 1934, as amended;
provided further
,
however
, if the combined operations of Superholdings and
its Consolidated Subsidiaries, excluding the operations of the Borrower and its Consolidated
Subsidiaries and excluding Cash and Cash Equivalents, would, if held by a single Subsidiary of the
Borrower, constitute a Significant Subsidiary of the Borrower, then the quarterly and annual
financial information required by the preceding paragraphs will include a reasonably detailed
presentation of the narrative discussion and analysis of the financial condition and results of
operations of the Borrower and its Consolidated Subsidiaries separate from the financial condition
and results of operations of Superholdings and its other Consolidated Subsidiaries;
provided,
further
, that the requirements of this paragraph shall not apply if Superholdings or Holdings files
with the SEC the reports referred to in this covenant, and any such report contains the information
required in this paragraph.
(d) no later than five (5) Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any material proposed amendment, supplement, waiver or other
modification with respect to the Senior Note Indenture.
(e) promptly upon receipt thereof, a copy of each other report or letter (except standard and
customary correspondence or requests for information) submitted to Superholdings or any of its
Subsidiaries by independent accountants in connection with any annual, interim or special audit
made by them of the books of Superholdings or any such Subsidiary, and a copy of any response by
the Borrower or any such Subsidiary, or the board of directors of Superholdings or any such
Subsidiary, to such letter or report.
(f) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Superholdings or any of its Subsidiaries
with the SEC, or with any national securities exchange, as applicable and as the case may be.
(g) promptly after the furnishing thereof, copies of any material financial statement, report
or notice furnished to or by any Person pursuant to the terms of any preferred
75
stock designation
(other than capital call notices and communications related thereto), indenture, loan or credit or
other similar agreement to which a Group Member is the borrower or the issuer, other than this
Agreement and not otherwise required to be furnished to the Lenders pursuant to any other provision
of this Section 7.2.
(h) prompt written notice of the occurrence of any Recovery Event or the commencement of any
action or proceeding that could reasonably be expected to result in a Recovery Event.
(i) prompt written notice (and in any event no less than ten (10) Business Days prior thereto)
of any change (i) in Holdings or any Group Members corporate name or in any trade name used to
identify such Person in the conduct of its business or in the ownership of its Properties, (ii) in
the location of Holdings or any Group Members chief executive office or principal place of
business, (iii) in Holdings or any Group Members identity or corporate structure or in the
jurisdiction in which such Person is incorporated or formed, (iv) in Holdings or any Group Members
jurisdiction of organization or such Persons organizational identification number in such
jurisdiction of organization, and (v) in Holdings or any Group Members federal taxpayer
identification number.
(j) promptly, but in any event within five (5) Business Days after the execution thereof,
copies of any amendment, modification or supplement to the certificate or articles of
incorporation, by-laws, any preferred stock designation or any other charter document of any Group
Member.
(k) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of any Group Member (including, without limitation, any
Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA),
or compliance with the terms of this Agreement or any other Loan Document, as the Administrative
Agent or any Lender may reasonably request in a written notice given in accordance with Section
11.2.
7.3.
Payment of Obligations
. Pay its obligations, including Tax liabilities before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the applicable Group Member has set
aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect or result in the seizure or levy of any material Property of any Group
Member.
7.4.
Maintenance of Existence; Compliance
. (a) Preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business and maintain, if necessary, its qualification to do
business in each other jurisdiction in which its Properties are located or the ownership of its
Properties requires such qualification, except where
the failure to do any of the foregoing could not reasonably be expected to have a Material
Adverse Effect;
provided
that the foregoing shall not prohibit any merger, conversion,
consolidation, liquidation or dissolution permitted under Section 8.4; and (b) comply with Material
Contractual Obligations and all laws, rules,
76
regulations and orders of any Governmental Authority
applicable to it or its Property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
7.5.
Maintenance of Property; Insurance
.
(a) operate its Properties or cause such Properties to be operated in a careful and efficient
manner in accordance with the practices of the industry and in compliance with all Material
Contractual Obligations and in compliance with all Governmental Requirements, including, without
limitation, applicable pro ration requirements and Environmental Laws, and all applicable laws,
rules and regulations of every other Governmental Authority from time to time constituted to
regulate the development and operation of its Properties, except, in each case, where the failure
to comply could not reasonably be expected to have a Material Adverse Effect.
(b) keep and maintain all Property used in to the conduct of its business in good working
order and condition (ordinary wear and tear excepted) and preserve, maintain and keep in good
repair, working order and efficiency (ordinary wear and tear excepted) all of its Properties,
including, without limitation, all equipment, machinery and facilities, except where such a failure
could not reasonably be expected to result in a Material Adverse Effect.
(c) promptly pay and discharge, or make reasonable and customary efforts to cause to be paid
and discharged, all rentals, royalties, expenses and indebtedness accruing under the leases or
other agreements affecting or pertaining to Properties and will do all commercially reasonable
things necessary to keep unimpaired their rights with respect thereto and prevent any forfeiture or
termination thereunder, except where such a failure could not reasonably be expected to result in a
Material Adverse Effect.
(d) promptly perform or make reasonable and customary efforts to cause to be performed, in
accordance with industry standards, the obligations required by each and all of the assignments,
deeds, leases, sub-leases, contracts and agreements affecting its interests in its Properties,
except where such a failure could not reasonably be expected to result in a Material Adverse
Effect.
(e) to the extent the Borrower is not the operator of any Property, use reasonable efforts to
cause the operator to comply with this Section 7.5, except where such a failure could not
reasonably be expected to result in a Material Adverse Effect.
(f) maintain, with financially sound and reputable insurance companies, insurance in such
amounts and against such risks which in the reasonable business judgment of the Borrower are
appropriate for companies engaged in the same or similar businesses operating in the same or
similar locations.
7.6.
Inspection of Property; Books and Records; Discussions
.
(a) Keep proper books of record and account in which full, true and correct entries in
conformity with (i) GAAP and (ii) in all material respects Requirements of Law, are made of all
dealings and transactions in relation to its business and activities, and
77
(b) Permit any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior written notice, and as coordinated by each Lender through the Administration
Agent, to visit and inspect its Properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times during normal business hours and as often as reasonably
requested on an individual and aggregate basis.
7.7.
Notices
. Promptly give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of, or the threat in writing of, any action, suit,
proceeding, investigation or arbitration by or before any arbitrator or Governmental Authority
against any Group Member not previously disclosed in writing to the Lenders or any material adverse
development in any action, suit, proceeding, investigation or arbitration previously disclosed to
the Lenders that, if adversely determined, could reasonably be expected to result in liability in
excess of $10,000,000;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Group Members in an
aggregate amount exceeding $10,000,000; and
(d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of an Authorized
Officer setting forth details of the occurrence referred to therein and stating what action the
Borrower or the relevant Subsidiary proposes to take with respect thereto.
7.8.
Environmental Laws
.
(a) At the Borrowers sole expense:
(i) cause its Properties and operations to comply with all applicable Environmental
Laws, the breach of which could be reasonably expected to have a Material Adverse Effect;
(ii) not perform any Hazardous Material Activity or dispose of or otherwise Release any
Hazardous Material or solid waste on, under, about or from any of the Group Members
Properties or any other Property to the extent caused by the Group Members operations
except in compliance with applicable Environmental Laws, the performance, disposal or
Release of which could reasonably be expected to have a Material Adverse Effect;
(iii) timely obtain or file all notices, or Governmental Authorizations, if any,
required under applicable Environmental Laws to be obtained or filed in connection
78
with the
operation or use of the Group Members Properties, which failure to obtain or file could
reasonably be expected to have a Material Adverse Effect; and
(iv) promptly commence and diligently prosecute to completion any assessment,
evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration,
remediation or other remedial obligations (collectively, the
Remedial Work
) in the
event any Remedial Work is required or reasonably necessary under applicable Environmental
Laws because of or in connection with the actual or suspected past, present or future
disposal or other Release of any Hazardous Materials or solid waste on, under, about or from
any of the Group Members Properties or by any Group Member, which failure to commence and
diligently prosecute to completion could reasonably be expected to have a Material Adverse
Effect.
(b) promptly, but in no event later than ten Business Days of the occurrence of a triggering
event, notify the Administrative Agent in writing of any threatened action, investigation or
inquiry by any Governmental Authority or any threatened demand or lawsuit by any landowner or other
third party against the Group Members or their Properties of which the Borrower has knowledge in
connection with any applicable Environmental Laws (excluding routine testing and corrective action)
if the Borrower reasonably anticipates that such action will result in liability (whether
individually or in the aggregate) in excess of $10,000,000 not fully covered by insurance, subject
to normal deductibles.
(c) undertake reasonable environmental audits and tests in accordance with reasonable industry
standards upon the request of the Administrative Agent no more than once per year in the absence of
any Event of Default (or as otherwise required to be obtained by the Administrative Agent or the
Lenders by any Governmental Authority).
7.9.
Interest Rate Protection
. In the case of the Borrower, within 90 days after the
Closing Date, enter into, and thereafter maintain, Hedge Agreements to the extent necessary to
provide that at least 50% of the aggregate principal amount of the Term Loans and the Senior Notes
is subject to either a fixed interest rate or interest rate protection (including swaps and/or caps
or collars) for a period of not less than three years, which Hedge Agreements shall, if such Hedge
Agreements constitute Specified Hedge Agreements, have terms and conditions reasonably satisfactory
to the Administrative Agent.
7.10.
Additional Collateral, etc.
(a) With respect to any property acquired after the Closing Date by the Borrower or any
Subsidiary Guarantor (other than (w) leasehold interests in real property, (x) any property
described in paragraph (b) or (c) below, (y) any property subject to a Lien securing Indebtedness
permitted by Section 8.2(m) and (z) as otherwise provided in the Guarantee and Collateral
Agreement) as to which the Administrative Agent, for the benefit of the Secured Parties, does not
have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments
to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems
reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in such property and (ii) take all actions reasonably
necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in such property, including the filing of
Uniform Commercial Code
79
financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent.
(b) With respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $10,000,000 acquired after the Closing Date by the Borrower or
any Subsidiary Guarantor, promptly (i) execute and deliver a first priority Mortgage, in favor of
the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii)
if reasonably requested by the Administrative Agent, provide the Secured Parties with (x) title and
extended coverage insurance covering such real property in an amount at least equal to the purchase
price of such real property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a surveyors
certificate and (y) will use commercially reasonable efforts to obtain any consents or estoppels
reasonably deemed necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative
Agent and (iii) if reasonably requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to such Mortgage, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new domestic Wholly-Owned Subsidiary created or acquired after the
Closing Date by the Borrower or any Subsidiary Guarantor, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock
of such new Subsidiary that is owned by the Borrower or any Subsidiary Guarantor, (ii) deliver to
the Administrative Agent the certificates, if any, representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant
Group Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for
the benefit of the Secured Parties a perfected first priority security interest in the Collateral
described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including
the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required
by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such
Subsidiary, substantially in the form of Exhibit C (or such other form acceptable to the
Administrative Agent), with appropriate insertions and attachments, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
7.11.
Further Assurances
. Promptly execute and deliver to the Administrative Agent all such
other documents, agreements and instruments reasonably requested by the Administrative Agent to
comply with, cure any defects or accomplish the conditions precedent, covenants and agreements of
the Group Members in the Loan Documents, including the Notes, or to correct any omissions in this
Agreement.
80
7.12.
ERISA Compliance
. Promptly furnish to the Administrative Agent (i) promptly after the
filing thereof with the United States Secretary of Labor, the Internal Revenue Service or the PBGC,
copies of each annual and other report with respect to each Plan or any trust created thereunder,
(ii) promptly upon becoming aware of the occurrence of any ERISA Event or of any prohibited
transaction, as described in section 406 of ERISA or in section 4975 of the Code, in connection
with any Plan or any trust created thereunder, a written notice signed by the President or the
principal Financial Officer, the Subsidiary or the ERISA Affiliate, as the case may be, specifying
the nature thereof, what action the Borrower, the Subsidiary or the ERISA Affiliate is taking or
proposes to take with respect thereto, and, when known, any action taken or proposed by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto, and (iii)
promptly upon receipt thereof, copies of any notice of the PBGCs intention to terminate or to have
a trustee appointed to administer any Plan. With respect to each Plan, the Borrower will, and will
cause each Subsidiary and ERISA Affiliate to, (a) satisfy in full and in a timely manner, without
incurring any late payment or underpayment charge or penalty and without giving rise to any lien,
all of the contribution and funding requirements of section 412 of the Code (determined without
regard to subsections (d), (e), (f) and (k) thereof) and of section 302 of ERISA (determined
without regard to sections 303, 304 and 306 of ERISA), and (b) pay, or cause to be paid, to the
PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all
premiums required pursuant to sections 4006 and 4007 of ERISA and (c) maintain each Plan in
material compliance with ERISA and the Code, as applicable.
7.13.
Lender Meetings
. Upon the request of Administrative Agent or the Required Lenders,
participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be
held at the Borrowers corporate offices (or at such other location as may be agreed to by the
Borrower and Administrative Agent) at such time as may be agreed to by the Borrower and
Administrative Agent.
7.14.
Royal Street Loan Documents
. The Borrower shall provide the Administrative Agent with copies of all material written
notices and, upon the request of the Administrative Agent, financial statements received and
delivered pursuant to the Royal Street Credit Agreement and all ancillary agreements related
thereto.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or Agent hereunder,
the Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
8.1.
Acquisitions
. Enter into or consummate any Acquisition other than Permitted
Acquisitions.
8.2.
Indebtedness
. Create, issue, incur, assume, become liable in respect of or suffer to
exist any Indebtedness, except:
81
(a) Indebtedness of the Borrower or any Subsidiary Guarantor pursuant to any Loan Document,
not including amounts incurred pursuant to Section 2.4;
(b) Indebtedness associated with workers compensation claims, self-insurance obligations,
bankers acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds
or similar bonds or other obligations in the ordinary course of business, and any guarantees or
letters of credit functioning as or supporting any of the foregoing;
(c) intercompany Indebtedness incurred by the Borrower or any Subsidiary Guarantor in
connection with a loan made by any Loan Party to the Borrower or such Subsidiary Guarantor,
evidenced by the Subordinated Intercompany Note; provided that such Indebtedness is not held,
assigned, transferred, negotiated or pledged to any Person other than the Secured Parties pursuant
to the Subordinated Intercompany Note;
(d) endorsements of negotiable instruments for collection in the ordinary course of business;
(e) Guarantee Obligations incurred in the ordinary course of business by the Borrower or any
of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness outstanding on the date hereof and listed on Schedule 8.2(f) and any
refinancings, refundings, renewals or extensions thereof with Permitted Refinancing Indebtedness;
(g) Indebtedness and obligations in respect of Hedge Agreements permitted under Section 8.10;
(h) obligations in respect of letters of credit required to be issued (i) for the benefit of
C9 Wireless, LLC (or its successors and assigns) in accordance with the Royal Street Agreements or
(ii) up to an aggregate amount of $25,000,000, for the benefit of any Person that controls a Person
in which the Borrower or any Subsidiary makes an Investment permitted by clause (x) or (xiv) of the
definition of Permitted Investments (provided such Person in which such Investment was made shall
have granted to the Borrower or the Subsidiary making such Investment a sole first priority Lien on
substantially all of its assets (except (x) as may be limited by a Requirement of Law or (y) for
Other Approved Liens)) to secure any put right for the benefit of the Person controlling such
Person;
(i) (i) Indebtedness of the Borrower in respect of the Senior Notes in an aggregate principal
amount not to exceed $1,000,000,000 and (ii) Guarantee Obligations of the Subsidiary Guarantors in
respect of such Indebtedness;
(j) Indebtedness for relocation or clearing obligations relating to the Borrowers or any
Subsidiary Guarantors FCC licenses in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding not to exceed $50,000,000;
(k) Indebtedness secured by Liens permitted by clauses (i) and (j) of the definition of
Excepted Liens;
82
(l) the guarantee by the Borrower or any of its Subsidiaries of Indebtedness of the Borrower
or a Subsidiary of the Borrower that was permitted by another provision of this Section 8.2;
(m) Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of financing (whether prior to or within
270 days after) all or any part of the purchase price or cost of design, construction, installation
or improvement of property, plant or equipment or the Capital Stock of any Person owning such
assets used in the business of the Borrower or any of Subsidiary Guarantor, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (m), not
to exceed the greater of (a) $150,000,000 and (b) 3.0% of the Consolidated Total Assets of the
Borrower and its Consolidated Subsidiaries on the date such Indebtedness in incurred, at any time
outstanding;
(n) additional secured Indebtedness (it being understood that once such Indebtedness is
properly incurred pursuant to this clause it shall at all times thereafter be permitted to exist
pursuant to this clause) of the Borrower or any Subsidiary Guarantor, so long as at the time of
incurrence (assuming all Revolving Commitments are fully funded) the Consolidated Senior Secured
Leverage Ratio for the Borrowers most recently ended four Fiscal Quarters for which internal
financial statements are available immediately preceding the date on which such additional secured
Indebtedness is incurred would be in accordance with, and as set forth in, the applicable
Compliance Certificate, has been no greater than the ratio set forth in Section 8.18(a) for such
period as if such covenant were at the time of incurrence in effect, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if such additional
secured Indebtedness had been incurred at the beginning of such
four-Fiscal Quarter period;
provided
that if such Indebtedness is secured by Liens that are
pari passu
with those in favor of the Secured Parties, such Indebtedness must be incurred pursuant
to Section 2.4 hereof;
provided further
, that if such Indebtedness is secured by Liens that are
junior to those in favor of the Secured Parties, such Indebtedness shall (1) have a greater
Weighted Average Life to Maturity than the Tranche B Term Loans, (2) not mature prior to the Term
Loan Maturity Date, (3) have covenants less restrictive than those set forth herein (taken as a
whole), and (4) be subject to an intercreditor agreement to be entered into by the Administrative
Agent and the agent or other representative for the holders of such Indebtedness, reasonably
satisfactory in form and substance to the Administrative Agent;
(o) additional unsecured Indebtedness (it being understood that once such Indebtedness is
properly incurred pursuant to this clause it shall at all times thereafter be permitted to exist
pursuant to this clause) of the Borrower or any Subsidiary Guarantor so long as at the time of
incurrence (assuming all Revolving Commitments are fully funded), the Consolidated Total Leverage
Ratio for the Borrowers most recently ended four Fiscal Quarters for which internal financial
statements are available immediately preceding the date on which such additional unsecured
Indebtedness is incurred would be in accordance with, and as set forth in, the applicable
Compliance Certificate, has been no greater than the ratio set forth in Section 8.18(b) for such
period as if such covenant were at the time of incurrence in effect determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if such
83
additional unsecured
Indebtedness had been incurred at the beginning of such four-Fiscal Quarter period; and
(p) Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used
to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than
intercompany Indebtedness) that was permitted to be incurred under clauses (i), (j), (k), (n), (o)
or (p) of this Section 8.2.
For purposes of determining compliance with this Section 8.2, in the event that an item of proposed
Indebtedness meets the criteria of more than one of the categories described in the clauses above,
or is otherwise entitled to be incurred pursuant to this Section, the Borrower will be permitted to
classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this Section. The accrual
of interest, the accretion or amortization of original issue discount, the payment of interest on
any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified
Stock will not be deemed to be an incurrence of Indebtedness for purposes of this Section;
provided
, in each such case, that the amount thereof is included in Consolidated Interest Expense
as accrued. Notwithstanding any other provision of this Section, the maximum amount of
Indebtedness that the Borrower or any of its Subsidiaries may incur pursuant to this Section shall
not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency
values. The amount of any Indebtedness outstanding as of any date will be: (i) the accreted value
of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) in
respect of Indebtedness of another Person secured by a Lien on assets of a Group Member, the lesser
of (A) the Fair Market Value of such assets at the date of determination and (B) the amount of the
Indebtedness of the other Person; and (iii) the principal amount of the Indebtedness, in the case
of any other Indebtedness.
8.3.
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its property,
whether now owned or hereafter acquired, except for:
(a) Liens securing the Obligations under the Loan Documents; and
(b) Excepted Liens.
8.4.
Fundamental Changes
. Merge into or with or consolidate with any other Person, or
sell, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all
or substantially all of the Property of the Group Members, taken as a whole, to any other Person
(any such transaction, a consolidation),
provided
that any Subsidiary may participate in a
consolidation, merger, sale or otherwise with the Borrower (
provided
that the Borrower shall be the
continuing or surviving Person or the Person that acquires the Property in question) or with any
Person (
provided
that the continuing or surviving Person or Person that acquires the Property in
question is a Subsidiary Guarantor or becomes a Subsidiary Guarantor under Section 7.10).
8.5.
Disposition of Property
. Sell, assign, transfer, convey or otherwise dispose of all
or substantially all of its properties or assets (with the consideration received for
84
such
properties or assets at least equal to the Fair Market Value thereof), to another Person, except:
(a) to the Borrower or any Subsidiary Guarantor (or a Person that becomes a Subsidiary
Guarantor immediately following such sale, assignment or transfer);
(b) Asset Sales and sales of Capital Stock so long as the Net Cash Proceeds from such Asset
Sale or sale of Capital Stock are applied in accordance with Section 4.2(b); and
(c) Property described in clauses (i)-(viii) of the definition of Asset Sale.
provided
, that:
(i) with respect to any Asset Sale or series of related Asset Sales involving aggregate
consideration in excess of $10,000,000, the Borrower delivers to the Administrative Agent a
resolution of the Borrowers or the applicable Subsidiary Guarantors board of directors (or
similar governing body) set forth in an officers certificate certifying that such Asset
Sale has been approved by the Borrowers or the applicable Subsidiary Guarantors board of
directors (or similar governing body); and
(ii) with respect to any Asset Sale or series of related Asset Sales involving
aggregate consideration in excess of $50,000,000, the approval of the board of directors (or
similar governing body) required by clause (i) above must be based on an opinion or
appraisal from a financial point of view issued by an accounting, appraisal or investment
banking firm of recognized standing.
8.6.
Restricted Payments
. Permit any Restricted Payment, except that:
(a) so long as (i) no Default has occurred or is continuing or would result from such
Restricted Payment, (ii) after giving effect to such Restricted Payment, the Borrower would be
permitted to incur an additional dollar of Indebtedness under Section 8.2(o), (iii) after giving
effect to such Restricted Payment, the Consolidated Senior Secured Leverage Ratio for the
Borrowers most recently ended four Fiscal Quarter period would have been no greater than the ratio
set forth in Section 8.18(a) for such period, determined on a Pro Forma Basis as if such Restricted
Payment had been made at the beginning of such period, and (iv) such Restricted Payment, together
with all other Restricted Payments (excluding Restricted Payments made pursuant to Sections
8.6(b)(2), (3), (4), (6), (7), (8), (9) and (11)) since the beginning of the most recent Fiscal
Quarter of the Borrower commencing after the Closing Date, is less than the Restricted Payment Cap,
then the Borrower and its Subsidiaries may make Restricted Payments.
(b) Notwithstanding the provisions of Section 8.6(a), so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the Borrower and its
Subsidiaries may make, do, take or otherwise effectuate the following actions:
(1) the payment of any dividend or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the dividend or giving of
the redemption notice, as the case may be, if at the date of declaration
85
or notice,
the dividend or redemption payment would have complied with the provisions of this
Agreement;
(2) make any Restricted Payment out of the Net Cash Proceeds from the
substantially concurrent sale of Capital Stock to Holdings by the Borrower or from
the substantially concurrent contribution by Holdings of capital to the Borrower in
respect of its Capital Stock (other than Disqualified Stock);
provided
that the
amount of any such Net Cash Proceeds that are utilized for any such Restricted
Payment shall be excluded from clause (B) of the definition of Restricted Payment
Cap;
(3) the defeasance, redemption, repurchase, retirement or other acquisition of
the Senior Notes or any Subordinated Indebtedness with the Net Cash Proceeds from a
substantially concurrent incurrence of Permitted Refinancing Indebtedness;
provided
that the amount of any such Net Cash Proceeds that are utilized for any such
defeasance, redemption, repurchase, retirement or other acquisition of Indebtedness
will be excluded from clause (B) of the definition of Restricted Payment Cap;
(4) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by any Subsidiary of the Borrower to
the holders of its Capital Stock on a
pro rata
basis;
(5) the repurchase, redemption or other acquisition or retirement for value of
any Capital Stock of any Parent, the Borrower or any Subsidiary
Guarantor held by any current or former officer, director or employee of any
Parent, the Borrower or any Subsidiary of the Borrower pursuant to any equity
subscription agreement, stock option agreement, shareholders agreement or similar
agreement;
provided
that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Capital Stock shall not exceed $5,000,000 in any
twelve-month period;
(6) the repurchase, redemption or other acquisition or retirement of Capital
Stock deemed to occur upon the exercise or exchange of stock options, warrants or
other similar rights to the extent such Capital Stock represent a portion of the
exercise or exchange price of those stock options, and the repurchase, redemption or
other acquisition or retirement of Capital Stock made in lieu of withholding taxes
resulting from the exercise or exchange of stock options, warrants or other similar
rights;
(7) the declaration and payment of regularly scheduled or accrued dividends to
holders of any class or series of Disqualified Stock of any Subsidiary of the
Borrower, or any class or series of preferred stock of a Subsidiary of the Borrower,
in each case issued after the Closing Date, so long as the Consolidated Total
Leverage Ratio for the Borrowers most recently ended four-Fiscal Quarters for which
internal financial statements are available immediately preceding the date on which
such dividend payment is made would in accordance with, and as
86
set forth in, the
applicable Compliance Certificate, have been no greater than the ratio set forth in
Section 8.18(b) for such period, assuming such ratio were required to be tested for
such period, determined on a pro forma basis, as if such dividend payment had been
made at the beginning of such four-Fiscal Quarter period;
(8) Permitted Payments to any Parent;
(9) the repurchase, redemption or other acquisition or retirement for value of
any Capital Stock of Superholdings to the extent necessary to comply with law or to
prevent the loss or to secure the renewal or reinstatement of any FCC license held
by Superholdings or any of its Subsidiaries;
(10) make required distributions or payments to Royal Street in accordance with
the Royal Street Agreements; and
(11) other Restricted Payments not to exceed $10,000,000 in the aggregate since
the Closing Date.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the
date of the Restricted Payment of the assets or securities proposed to be transferred or issued by
the Borrower or its Subsidiaries pursuant to the Restricted Payment. The Fair Market Value of any
assets or securities that are required to be valued by this Section 8.6 will be determined as
follows:
(i) with respect to any Restricted Payment or series of related Restricted Payments
involving aggregate consideration in excess of $10,000,000, a resolution of the Borrowers
or the applicable Subsidiary Guarantors board of directors (or similar governing body) set
forth in an officers certificate certifying that such Restricted Payment has been approved
by the Borrowers or the applicable Subsidiary Guarantors board of directors (or similar
governing body); and
(ii) with respect to any Restricted Payment or series of related Restricted Payments
involving aggregate consideration in excess of $50,000,000, the approval of the board of
directors (or similar governing body) required by clause (i) above must be based on an
opinion or appraisal from a financial point of view issued by an accounting, appraisal or
investment banking firm of recognized standing.
8.7.
Modifications of Certain Debt Instruments
. Amend, modify, waive or otherwise change,
or consent or agree to any amendment, modification, waiver or other change to (a) the Royal Street
Credit Agreement, Royal Street Security Agreement or Royal Street Pledge Agreement that materially
adversely affects the Liens granted to any Group Member pursuant to the Royal Street Credit
Agreement, Royal Street Security Agreement or Royal Street Pledge Agreement without the prior
written consent of the Administrative Agent; (b) any of the material terms of the Senior Notes or
any Subordinated Indebtedness or any related documents providing for the subordination thereof
(other than any such amendment, modification, waiver or other change that (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any
date for payment of interest thereon and (ii) does not
87
involve the payment of a consent fee); or (c) any agreement relating to Liens granted to
the Borrower or any Subsidiary Guarantor by a Person in which such Loan Party has made an
Investment pursuant to clause (x) or (xiv) of the definition of Permitted Investments that
materially adversely affects the Liens granted to such Loan Party pursuant to any such agreement
without the prior written consent of the Administrative Agent.
8.8.
Transactions with Affiliates
. Enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of Property or the rendering of any service, with
any Affiliate unless such transactions are otherwise not prohibited by this Agreement and are upon
fair and reasonable terms no less favorable to it than it would obtain in a comparable arms length
transaction with a Person not an Affiliate (it being understood that transactions with any
Affiliate involving the transfer of Property (including sale-leaseback transactions) at book value
shall be deemed to be fair and reasonable). Notwithstanding the preceding sentence, the following
items will not be prohibited by the provisions of the preceding sentence:
(1) any employment agreement, employee benefit plan, agreement or plan relating to
employee or officer compensation, officer or director indemnification agreement or any
similar arrangement entered into by the Borrower or any of its Subsidiaries existing on the
Closing Date (other than any Plans), or entered into thereafter in the ordinary course of
business, and any indemnitees or other transactions permitted or required by bylaw,
statutory provisions or any of the foregoing agreements, plans or arrangements and payments
pursuant thereto;
(2) transactions between or among the Loan Parties;
(3) payment of reasonable directors fees;
(4) any issuance of Capital Stock (other than Disqualified Stock) of the Borrower to
Holdings;
(5) any receipt of any capital contribution from, any Affiliate of the Borrower;
(6) transactions with Royal Street in accordance with the applicable Royal Street
Agreements, transactions with any Person in which Borrower or any of its Subsidiaries has a
Permitted Joint Venture Investment and transactions in connection with any Person in which
the Borrower or any of its Subsidiaries has made an Investment pursuant to clause (xiv) of
the definition of Permitted Investments (provided such Person in which such Investment was
made shall have granted to the Borrower or the Subsidiary making such Investment a sole
first priority Lien on substantially all of its assets (except (x) as may be limited by a
Requirement of Law or (y) for Other Approved Liens));
(7) any Permitted Investments or Restricted Payments that do not violate the provisions
of this Agreement; and
(8) any contracts, agreements or understandings existing as of the Closing Date and
disclosed in the notes to the consolidated financial statements of Superholdings
for the year ended December 31, 2005 or for the nine months ended September 30, 2006,
88
and any amendments to or replacements of such contracts, agreements or understandings so
long as any such amendment or replacement, taken as a whole, is not more disadvantageous to
the Borrower or to the Lenders in any material respect than the original agreement as in
effect on the Closing Date.
8.9.
Sales and Leasebacks
. Except for sale and leaseback transactions with consideration of
less than $20,000,000 in the aggregate for all such transactions, enter into any arrangement with
any Person (other than (a) among the Borrower and one or more Subsidiary Guarantors or (b) among
the Borrower or any Subsidiary Guarantor and Royal Street or any Person in which the Borrower or
any of its Subsidiaries has made an Investment pursuant to clause (x) or (xiv) of the definition of
Permitted Investments (provided such Person in which such Investment was made shall have granted to
the Borrower or the Subsidiary making such Investment a sole first priority Lien on substantially
all of its assets (except (x) as may be limited by a Requirement of Law or (y) for Other Approved
Liens))) providing for the leasing by the Borrower or any Subsidiary of Property that has been or
is to be sold or transferred by the Borrower or such Subsidiary Guarantor to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the security of such
property or rental obligations of the Borrower or such Subsidiary Guarantor.
8.10.
Hedge Agreements.
Enter into any Hedge Agreement, except (a) Hedge Agreements entered
into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other
than those in respect of Capital Stock), (b) Hedge Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary, (c) any Eurodollar cap purchased with respect to any Eurodollar
Loan, and (d) Hedge Agreements required pursuant to Section 7.9.
8.11.
Changes in Fiscal Year
. Change its Fiscal Year-end from December 31.
8.12.
Negative Pledge Clauses; Subsidiary Distributions
. Create, incur, assume or suffer to
exist (except as may exist as of the date hereof) any contract, agreement or understanding which in
any way prohibits or restricts (i) the ability of the Borrower or any Subsidiary of the Borrower to
create, incur or permit any Lien upon any of its Property (other than Liens permitted by Section
8.3), (ii) any Subsidiary of the Borrower from paying dividends or making distributions, loans or
advances to the Borrower or any Subsidiary of the Borrower, or which requires the consent of or
notice to other Persons in connection with the paying of dividends or the making of distributions
or (iii) the ability of any Subsidiary to transfer any of its assets to the Borrower or any other
Subsidiary;
provided, however
, that the preceding restrictions will not apply to encumbrances or
restrictions arising under or by reason of (a) this Agreement, (b) any leases or licenses or
similar contracts as they
affect any Property or Lien subject to a lease or license, (c) the Senior Note Indenture, (d)
agreements or instruments governing Excluded Indebtedness and Capital Stock and any amendments,
restatements, modifications, renewals, increases, supplements, refundings, replacements or
refinancings of these agreements or instruments permitted hereunder;
provided
that the amendments,
restatements, modifications, renewals, increases, supplements, refundings, replacements or
refinancings are not materially more restrictive, taken as a whole, with respect to such dividend,
other payment and asset transfer restrictions than those contained in those agreements or
instruments on the Closing Date,
89
(e) applicable law, rule, regulation or order, (f) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Borrower or any of its
Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness
or Capital Stock was incurred or issued in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of the Person, so
acquired;
provided
that, in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Agreement to be incurred, (g) customary non-assignment provisions in contracts and licenses
entered into in the ordinary course of business, (h) any instrument governing any secured
Indebtedness or Capital Lease Obligation that imposes restrictions on the assets securing such
Indebtedness or the subject of such lease of the nature described in clause (iii) above, (i)
Excepted Liens that limit the right of the debtor to dispose of the assets subject to such Liens,
(j) customary provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the Borrowers Board of Directors, which
limitation is applicable only to the assets that are the subject of such agreements, and (k)
restrictions on cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business.
8.13.
International Operations; Foreign Subsidiaries
. Acquire or make any other expenditure
(whether such expenditure is capital, operating or otherwise) in or related to, any Property which
after consummation of such acquisition will not be located within the geographical boundaries of
the United States, including any equity interests in a Subsidiary or any other Person not
incorporated under the laws of a jurisdiction within the United States.
8.14.
Limitation on Leases
. Create, incur, assume or suffer to exist any obligation for the
payment of rent or hire of Property of any kind whatsoever under leases or lease agreements (other
than leases of real property entered into in the ordinary course of business) which would cause the
aggregate amount of all payments made by the Group Members pursuant to all such leases or lease
agreements, including, without limitation, any residual payments at the end of any lease, to exceed
$20,000,000 in any period of twelve consecutive calendar months during the life of such leases.
8.15.
ERISA Compliance
. (a) Engage in, or permit any ERISA Affiliate to engage in, any transaction in
connection with which the Borrower, any of its Subsidiaries or any ERISA Affiliate could be
subjected to either a civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502
of ERISA or a tax imposed by Chapter 43 of Subtitle D of the Code, if either of which could
reasonably be expected to have a Material Adverse Effect.
(b) Terminate, or permit any ERISA Affiliate to terminate, any Plan in a manner, or take any
other action with respect to any Plan, which could reasonably be expected to result in any
liability of any Group Member or any ERISA Affiliate to the PBGC if any such liability could
reasonably be expected to result in a Material Adverse Effect.
(c) Fail to make, or permit any ERISA Affiliate to fail to make, full payment when due of all
amounts which, under the provisions of any Plan, agreement relating thereto or applicable law, the
Borrower or any of its Subsidiaries or any ERISA Affiliate is required to pay
90
as contributions
thereto if such failure could reasonably be expected to have a Material Adverse Effect.
(d) Permit to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding
deficiency within the meaning of section 302 of ERISA or section 412 of the Code, whether or not
waived, with respect to any Plan which exceeds $10,000,000.
(e) Permit, or allow any ERISA Affiliate to permit, the actuarial present value of the benefit
liabilities under any Plan maintained by the Borrower, any of its Subsidiaries or any ERISA
Affiliate which is regulated under Title IV of ERISA to exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable
to such benefit liabilities by an amount in excess of $10,000,000. The term actuarial present
value of the benefit liabilities shall have the meaning specified in section 4041 of ERISA.
(f) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to
contribute to or assume an obligation to contribute to, any Multiemployer Plan.
(g) Acquire, or permit any ERISA Affiliate to acquire, an interest in any Person that causes
such Person to become an ERISA Affiliate with respect to the Borrower, any of its Subsidiaries or
any ERISA Affiliate if such Person sponsors, maintains or contributes to, or at any time in the
six-year period preceding such acquisition has sponsored, maintained, or contributed to, (i) any
Multiemployer Plan, or (ii) any other Plan that is subject to Title IV of ERISA under which the
actuarial present value of the benefit liabilities under such Plan exceeds the current value of the
assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan
allocable to such benefit liabilities by any amount in excess of $10,000,000.
(h) Incur, or permit any ERISA Affiliate to incur, a liability to or on account of a Plan
under sections 515, 4062, 4063, 4064, 4201 or 4204 of ERISA if such liability could reasonably be
expected to have a Material Adverse Effect.
(i) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to
contribute to or assume an obligation to contribute to, any employee welfare benefit plan, as
defined in section 3(1) of ERISA, including, without limitation, any such plan maintained to
provide benefits to former employees of such entities, that may not be terminated by such entities
in their sole discretion at any time without any material current liability in excess of
$10,000,000.
(j) Amend, or permit any ERISA Affiliate to amend, a Plan resulting in a material increase in
current liability such that any Group Member or any ERISA Affiliate is required to provide security
to such Plan under section 401(a)(29) of the Code.
8.16.
Environmental Matters
. (a) Cause or permit any of its Property by its Hazardous
Materials Activities or other actions or by Hazardous Materials Activities or other actions of
third parties under its control, to be in violation of, or do anything or permit anything to be
done which will subject any such Property to any Remedial Work under any applicable
91
Environmental
Laws, assuming disclosure to the applicable Governmental Authority of all relevant facts,
conditions and circumstances, if any, pertaining to such Property where such violations or remedial
obligations could reasonably be expected to have a Material Adverse Effect and (b) take reasonable
actions to prevent their respective Property from being in violation or the subject of remedial
obligations in clause (a) above.
8.17.
Subsidiaries
. (a) Create or acquire any additional Subsidiary unless the Borrower
gives written notice to the Administrative Agent of such creation or acquisition and complies with
Section 7.10, (b) sell, assign or otherwise dispose of any Capital Stock in any Subsidiary except
in compliance with Section 8.5, (c) have any Subsidiaries other than Subsidiaries organized in a
jurisdiction in the United States, or (d) have any Subsidiaries that own Capital Stock in any Group
Member, unless such Subsidiary becomes a Guarantor hereunder.
8.18.
Financial Condition Covenants
.
(a)
Consolidated Senior Secured Leverage Ratio
. Permit the Consolidated Senior
Secured Leverage Ratio as at the last day of any period of four consecutive Fiscal Quarters of the
Borrower ending after the Closing Date to be greater than 4.5x.
(b)
Consolidated Total Leverage Ratio
. Permit the Consolidated Total Leverage Ratio
as at the last day of any period of four consecutive Fiscal Quarters of the Borrower ending with
the last day of any Fiscal Quarter set forth below to exceed the ratio set forth below opposite
such Fiscal Quarter:
|
|
|
|
|
|
|
Consolidated Total
|
Fiscal Quarter Ending
|
|
Leverage Ratio
|
From the Closing Date through March 31, 2008
|
|
|
7.0x
|
|
From June 30, 2008 through March 31, 2009
|
|
|
6.5x
|
|
From June 30, 2009 and thereafter
|
|
|
6.0x
|
|
;
provided however
, that the Consolidated Total Leverage Ratio shall be tested only at the
last day of any such four Fiscal Quarter period when Total Revolving Extensions of Credit (without
giving effect to any Additional Stated LC Amount) are in excess of $25,000,000 on an average daily
basis during the last Fiscal Quarter of such four Fiscal Quarter period.
(c)
Consolidated Fixed Charge Coverage Ratio
. Permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive Fiscal Quarters of the Borrower (or, if less, the
number of full Fiscal Quarters subsequent to the Closing Date) ending with the last day of any
Fiscal Quarter set forth below to be less than the ratio set forth below opposite such Fiscal
Quarter:
|
|
|
|
|
|
|
Consolidated Fixed
|
Fiscal Quarter Ending
|
|
Charge Coverage Ratio
|
From September 30, 2007 through December 31, 2007
|
|
|
1.10x
|
|
From March 31, 2008 through December 31, 2008
|
|
|
1.25x
|
|
From March 31, 2009 and thereafter
|
|
|
1.50x
|
|
92
;
provided
,
however
, that the Consolidated Fixed Charge Coverage Ratio shall be tested only at
the last day of any such four Fiscal Quarter Period when Total Revolving Extensions of Credit
(without giving effect to any Additional Stated LC Amount) are in excess of $25,000,000 on an
average daily basis during the last Fiscal Quarter of such four Fiscal Quarter period.
8.19.
Lines of Business
. Enter into any business, either directly or through any Subsidiary,
except for those businesses in which the Borrower and its Subsidiaries are engaged on the date of
this Agreement or that are reasonably related thereto or are related to the telecommunications
industry.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a)
Failure to Make Payments When Due
. Failure by the Borrower to pay (i) when due
any principal of any Loan or Reimbursement Obligation, whether at stated maturity, by acceleration,
by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on
any Loan or Reimbursement Obligation or any fee or any other amount due hereunder within five days
after the date due; or
(b)
Default in Other Agreements
. (i) Failure of any Loan Party to pay when due any
principal of or interest on or any other amount payable in respect of one or more items of
Indebtedness (including any Hedge Agreement, but excluding any Indebtedness referred to in
Section 9(a)), in each case beyond the grace period, if any, provided therefore and
aggregating $10,000,000 or more; or (ii) breach or default by any Loan Party with respect to any
other material term of (1) one or more items of Indebtedness in the individual or aggregate
principal amount referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or
other agreement relating to such item(s) of Indebtedness in the individual or aggregate principal
amount referred to in clause (i) above, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or permit the holder or beneficiary
of such Indebtedness to cause, with the giving of notice if required, that Indebtedness to become
or be declared due and payable (or redeemable or subject to a mandatory offer to purchase by the
obligor thereon) prior to its stated maturity or the stated maturity of any underlying obligation,
as the case may be; or
(c)
Breach of Certain Covenants
. Failure of any Group Member to perform or comply
with any term or condition contained in (i) Section 5.16, Section 7.4(a) (with respect to the
Borrower only), Section 7.7(a), Section 7.10 or Section 8 of this Agreement or (ii) Section 5.12 or
Section 5.13 of the Guarantee and Collateral Agreement;
provided, however
, that a failure to
perform or comply with any term or condition in Section 8.3 which occurs solely by reason of the
existence of purchase money Liens on Property (other than real property) purchased by any Group
Member, securing amounts payable related to such Property in an
93
amount exceeding $150,000,000,
shall not constitute an Event of Default if such failure is remedied not later than 10 days from
the date of such failure; or
(d)
Breach of Representations, etc.
Any representation, warranty, certification or
other statement made or deemed made by any Loan Party in any Loan Document or in any statement or
certificate at any time given by any Loan Party in writing pursuant hereto or thereto or in
connection herewith or therewith shall be inaccurate in any material respect as of the date made or
deemed made; or
(e)
Other Defaults Under Loan Documents
. Any Loan Party shall default in the
performance of or compliance with any term contained herein or any of the other Loan Documents,
other than any such term referred to in any other Section of this Section 9, and such default shall
not have been remedied or waived within thirty days after the earlier of (i) a Financial Officer of
the Borrower obtaining actual knowledge of such default or (ii) receipt by the Borrower of notice
from Administrative Agent or any Lender of such default; or
(f)
Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court of competent
jurisdiction shall enter a final decree or order for relief in respect of any Loan Party in an
involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an involuntary case
shall be commenced against any Loan Party under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any Loan Party, or over all or a
substantial part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for
all or a substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the property of any
Loan Party, and any such event described in this clause (ii) shall continue for forty-five days
without having been stayed, dismissed, bonded or discharged; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Any Loan Party shall have
an order for relief entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver, trustee or other custodian for
all or a substantial part of its property; or any Loan Party shall make any assignment for the
benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due; or the board of
directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the actions referred to herein or in
Section 9(f); or
(h)
Judgments and Attachments
. Any money judgment, writ or warrant of attachment or
similar process involving in the aggregate at any time an amount in excess of
94
$10,000,000 (in
either case to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or filed against any
Loan Party or any of their respective assets and shall remain undischarged, unpaid, unvacated,
unappealed, unbonded or unstayed for a period of forty-five days (or in any event later than five
days prior to the date of any proposed sale thereunder); or
(i)
Dissolution
. Any order, judgment or decree shall be entered against any Group
Member decreeing the dissolution or split up of such Group Member and such order shall remain
undischarged, unvacated or unstayed for a period in excess of thirty days; or
(j)
Employee Benefit Plans
. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of any Loan Party or any of their respective ERISA Affiliates in excess of $10,000,000 during the
term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to
result in the imposition of a Lien or security interest under Section 412(n) of the Code or under
ERISA; or
(k)
Loan Documents
. At any time after the execution and delivery thereof, (i) the
Guarantee and Collateral Agreement for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void or any Group Member shall repudiate its obligations
thereunder, (ii) this Agreement ceases to be in full force and effect (other than by reason of the
satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared
null and void, or (iii) any Group Member shall contest the validity or enforceability of any Loan
Document in writing or deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Loan Document to which it is a party, or (iv) any lien
created by any of the Security Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
(l) a Change of Control shall occur; or
(m) any material Subordinated Indebtedness or the guarantees thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the obligations of the Subsidiary
Guarantors under the Guarantee and Collateral Agreement, as the case may be, as provided in any
document governing any Subordinated Indebtedness; or
(n) any Group Member (i) defaults in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment due on early termination of, any Specified Hedge
Agreement, in each case beyond the period of grace, if any, provided in such Specified Hedge
Agreement; or (iii) defaults in the observance or performance of any other agreement or condition
relating to any such Specified Hedge Agreement, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, after the giving of notice if required or the elapse of any grace period, a liquidation,
acceleration or early termination of such Specified Hedge Agreement;
provided
, that a default,
event or condition described in clause (i) or (ii) of this paragraph (n) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
95
events or conditions of
the type described in clauses (i) and (ii) of this paragraph (n) shall have occurred and be
continuing under Specified Hedge Agreements which have an outstanding principal amount of
Indebtedness thereunder which exceeds $10,000,000;
then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) or
(g) above as to the Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement
and the other Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving Commitments to be
terminated forthwith, whereupon the Revolving Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the
other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents required thereunder) to
be due and payable forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time
deposit in a cash collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the
Borrower hereunder and under the other Loan Documents and any Specified Hedge Agreements. After
all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder and under the other Loan
Documents and any Specified Hedge Agreements shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto). Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION 10. THE AGENTS
10.1.
Appointment
. Each Lender (and, if applicable, each other Secured Party) hereby
irrevocably designates and appoints each Agent as the agent of such Lender (and, if applicable,
each other Secured Party) under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes such Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
96
Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender or other Secured Party, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
10.2.
Delegation of Duties
. Each Agent may execute any of its duties under this Agreement
and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
10.3.
Exculpatory Provisions
. Neither any Agent nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Persons own gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders or any other Secured Party for any recitals, statements, representations or
warranties made by any Group Member or any officer thereof contained in this Agreement or any other
Loan Document or any Specified Hedge Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document or any Specified Hedge Agreement for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any Specified Hedge Agreement or for any failure of any Group Member a
party thereto to perform its obligations hereunder or thereunder. The Agents shall not be
under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document
or any Specified Hedge Agreement, or to inspect the properties, books or records of any Group
Member.
10.4.
Reliance by Agents
. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by such Agent. The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense that may be incurred by it by reason of taking or continuing to take
any such action. The Agents shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and
97
such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans and all other Secured Parties.
10.5.
Notice of Default
. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent has received notice from
a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a notice of default. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement);
provided
that
unless and until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in the best interests
of the Secured Parties.
10.6.
Non-Reliance on Agents and Other Lenders
. Each Lender (and, if applicable, each other
Secured Party) expressly acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates have made any representations or
warranties to it and that
no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or
any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender or any other Secured Party. Each Lender (and, if applicable, each other
Secured Party) also represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender or any other Secured Party, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement or any Specified Hedge Agreement. Each Lender (and, if applicable, each other
Secured Party) also represents that it will, independently and without reliance upon any Agent or
any other Lender (or any other Secured Party), and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the other Loan Documents or any
Specified Hedge Agreement, and to make such investigation as it deems necessary to inform itself as
to the business, operations, property, financial and other condition and creditworthiness of the
Loan Parties and their Affiliates. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Lender or any other Secured Party
with any credit or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a
Loan Party that may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7.
Indemnification
. The Lenders agree to indemnify each Agent in its capacity as such
(to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if
98
indemnification is sought after
the date upon which the Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents, any Specified Hedge Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing;
provided
that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from such Agents
gross negligence or willful misconduct. The agreements in this Section shall survive the payment
of the Loans and all other amounts payable hereunder.
10.8.
Agent in Its Individual Capacity
. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Group Member as though such Agent were not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an Agent, and the terms
Lender, Lenders, Secured Party and Secured Parties shall include each Agent in its
individual capacity.
10.9.
Successor Administrative Agent and Issuing Lender
. (a) The Administrative Agent may
resign as Administrative Agent upon 30 Business Days notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall (unless an Event of Default under Section 9(a) or
Section 9(f) with respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the Administrative Agent,
and the term Administrative Agent shall mean such successor agent effective upon such appointment
and approval, and the former Administrative Agents rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date that is 10 Business
Days following a retiring Administrative Agents notice of resignation, the retiring Administrative
Agents resignation shall nevertheless thereupon become effective and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. The Syndication Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as Syndication Agent
hereunder, whereupon the duties, rights, obligations and responsibilities of the Syndication Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the Administrative Agent,
without any further act by the Syndication Agent, the Administrative Agent or any Lender. After
any
99
retiring Administrative Agents resignation as Administrative Agent, the provisions of this
Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement and the other Loan Documents.
(b) The Borrower shall be permitted to replace the then existing Issuing Lender (the
Departing Issuing Lender
) upon 10 Business Days notice to the Administrative Agent and
the Departing Issuing Lender (or such shorter time as the Departing Issuing Lender may agree) if
the Departing Issuing Lender requests reimbursement under Section 3.7(c) or otherwise declines to
issue a Letter of Credit pursuant to the provisions of Section 3.7(c). The Borrower shall select
from among the Lenders a successor Issuing Lender, subject to approval by such successor Issuing
Lender and by the Administrative Agent (the approval of the Administrative Agent shall not be
unreasonably withheld or delayed), whereupon such successor Issuing Lender shall succeed to the
rights, powers and duties of the Departing Issuing Lender, and the term Issuing Lender shall mean
such successor Issuing Lender effective upon such appointment and approval, and (subject to the
final two sentences of this Section 10.9(b) the Departing Issuing
Lenders rights, powers and duties as Issuing Lender shall be terminated, without any other or
further act or deed on the part of such Departing Issuing Lender or any of the parties to this
Agreement or any holders of the Loans. Any Letter of Credit issued by the Departing Issuing Lender
and outstanding on the effective date of the appointment and approval of the successor Issuing
Lender shall remain an outstanding L/C Obligation. The provisions of the Loan Documents shall
inure to the benefit of the Departing Issuing Lender for so long as any Letter of Credit issued by
the Departing Issuing Lender remains outstanding.
10.10.
Agents Generally
. Except as expressly set forth herein, no Agent shall have any
duties or responsibilities hereunder in its capacity as such.
10.11.
The Lead Arranger
. The Lead Arranger, in its capacity as such, shall have no duties
or responsibilities, and shall incur no liability, under this Agreement and other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1.
Amendments and Waivers
. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 11.1. The Required Lenders and each Group Member party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent
and each Group Member party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Group Members hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be,
may specify in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences;
provided
,
however
, that, in
addition, no such waiver and no such amendment, supplement or modification shall (i) forgive the
principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled
date of any amortization payment in respect of any Term Loan, reduce the stated rate of any
interest or
100
fee payable hereunder (except (x) in connection with any waiver of the applicability of
any post-default increase in interest rates, which waiver shall be effective with the consent of
the Majority Facility Lenders of each adversely affected Facility and (y) that any amendment or
modification of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend
the scheduled date of any payment thereof, or increase the amount or extend the expiration date of
any Lenders Revolving Commitment, in each case without the written consent of each Lender directly
affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 11.1
without the written consent of such Lender; (iii) reduce any percentage specified in the definition
of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or substantially
all of the Collateral (except as expressly provided by Section 11.14(b)), release all or
substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and
Collateral Agreement or modify the provisions of Section 11.6, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any condition precedent to any extension of
credit under the Revolving Facility set forth in Section 6.2 (including in connection with any
waiver of an existing Default or Event of Default) without the written consent of the Majority
Facility Lenders with respect to the Revolving Facility; (v) amend, modify or waive any provision
of Section 4.8 without the written consent of each Lender adversely affected thereby; (vi) reduce
the amount of Net Cash Proceeds required to be applied to prepay Loans under this Agreement without
the written consent of the Majority Facility Lenders with respect to each Facility; (vii) reduce
the percentage specified in the definition of Majority Facility Lenders with respect to any
Facility without the written consent of all Lenders under such Facility; (viii) amend, modify or
waive any provision of Section 10 without the written consent of each Agent adversely affected
thereby; (ix) amend, modify or waive any provision of Section 3.3 or 3.4 without the written
consent of the Swingline Lender; (x) amend, modify or waive any provision of Sections 3.7 to 3.14
without the written consent of the Issuing Lender; (xi) amend, modify or waive (A) any Loan
Document so as to alter the ratable treatment of the Borrower Hedge Agreement Obligations and the
Borrower Credit Agreement Obligations or (B) the definition of Qualified Counterparty, Specified
Hedge Agreement, Obligations, Borrower Obligations, or Borrower Hedge Agreement Obligations,
in each case in a manner adverse to any Qualified Counterparty with Obligations then outstanding
without the written consent of any such Qualified Counterparty. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders and shall be
binding upon the Group Members, the Lenders, the Agents and all future holders of the Loans. In
the case of any waiver, the Group Members, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
If, in connection with any proposed amendment, modification, waiver or termination requiring the
consent of all Lenders, the consent of Required Lenders is obtained, but the consent of other
Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained
being referred to as a
Non-Consenting Lender
), then, so long as the Administrative Agent
is not a Non-Consenting Lender, the Administrative Agent or a Person reasonably acceptable to the
Administrative Agent (and the Administrative Agent or such Person agrees to consent to the proposed
amendment, modification, waiver or termination for which such Non-
101
Consenting Lenders consent has
not been obtained) shall have the right to purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon the Administrative Agents request, sell and
assign to the Administrative Agent or such Person, all of the Term Loans of such Non-Consenting
Lenders for an amount equal to the principal balance of all Term Loans held by such Non-Consenting
Lenders and all accrued interest and fees (including any related processing and/or recordation
fees) with respect thereto through the date of sale, such purchase and sale to be consummated
pursuant to an executed Assignment and Assumption. Notwithstanding the foregoing, technical and
conforming modifications to each Loan Document may be made with the consent (not to be unreasonably
withheld) of the Administrative Agent and each Group Member that is a party thereto to the extent
necessary to
integrate any Incremental Term Loans (including Other Term Loans) on substantially identical
terms as the Tranche B Term Loans, except, in the case of Other Term Loans, with respect to the
interest rate margin applicable thereto.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add
one or more additional credit facilities to this Agreement and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the
Additional Extensions of Credit
) to share ratably in the benefits of
this Agreement and the other Loan Documents with the Term Loans and Revolving Extensions of Credit
and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders;
provided
, that no such
amendment shall permit the Additional Extensions of Credit to share ratably with or with preference
to the Term Loans in the application of mandatory prepayments without the consent of the Required
Lenders. Notwithstanding the foregoing, the consent of the Required Lenders shall not be required
to effectuate the provisions of Section 2.4.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans
(
Refinanced Term Loans
) with a replacement B term loan tranche hereunder
(
Replacement Term Loans
),
provided
that (a) the aggregate principal amount of such
Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term
Loans, (b) the interest rate margin for such Replacement Term Loans shall not be higher than the
weighted average interest rate margin for such Refinanced Term Loans, (c) the weighted average life
to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to
the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term
Loans, except to the extent necessary to provide for covenants and other terms applicable to any
period after the latest final maturity of the Term Loans in effect immediately prior to such
refinancing. Any refinancing of the Term Loans as described above shall be subject to the
prepayment provisions of Section 4.1.
11.2.
Notices
. All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or
102
three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the Administrative Agent, and as
set forth in an administrative questionnaire delivered to the Administrative Agent in the case of
the Lenders, or to such other address as may be hereafter notified by the respective parties
hereto:
|
|
|
|
|
|
|
The Borrower:
|
|
8144 Walnut Hill Lane, Suite 800
|
|
|
|
|
Dallas, Texas 75231
|
|
|
|
|
Attention: Senior Vice President and Chief
Financial Officer
|
|
|
|
|
Telecopier: (214) 265-2570
|
|
|
|
|
|
|
|
with a copy to:
|
|
8144 Walnut Hill Lane, Suite 800
|
|
|
|
|
Dallas, Texas 75231
|
|
|
|
|
Attention: Senior Vice President, General Counsel
and Secretary
|
|
|
|
|
Telecopier: (866) 685-9618
|
|
|
|
|
|
|
|
The Administrative Agent:
|
|
383 Madison Avenue
|
|
|
|
|
New York, New York 10179
|
|
|
|
|
Attention: Kevin Cullen
|
|
|
|
|
Telecopier: (212) 272-9184
|
|
|
|
|
|
|
|
with a copy to:
|
|
Latham & Watkins LLP
|
|
|
|
|
885 Third Avenue, Suite 1000
|
|
|
|
|
New York, New York 10022
|
|
|
|
|
Attention: Michele O. Penzer
|
|
|
|
|
Telecopier: (212) 751-4864
|
;
provided
that any notice, request or demand to or upon any Agent, the Issuing Lender or the
Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided
that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it;
provided
that approval of such procedures may
be limited to particular notices or communications.
11.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising, on
the part of any Agent or any Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
103
11.4.
Survival of Representations and Warranties
. All representations and warranties made
hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder so long as any
Obligations are outstanding.
11.5.
Payment of Expenses and Taxes
. The Borrower agrees (a) to pay or reimburse each Agent
for all its reasonable and actual out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees and disbursements of outside counsel to such Agent and
filing and recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Restatement Date (in the case of amounts to be paid on the
Restatement Date) and from time to time thereafter on a quarterly basis or such other periodic
basis as such Agent shall deem appropriate, (b) to pay or reimburse each Lender and Agent for all
its actual out-of-pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of outside counsel to each Lender and of counsel to
such Agent, (c) to pay, indemnify, and hold each Lender and Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and Agent and their respective officers,
directors, employees, Affiliates, trustees, advisors, agents and controlling persons (each, an
Indemnitee
) harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including
any of the foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, or remedial actions required or reasonably necessary
pursuant to, any Environmental Law applicable to the operations of any Group Member or any of the
Properties or the unauthorized use by Persons of information or other materials sent through
electronic, telecommunications or other information transmission systems that are intercepted by
such Persons and the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Group Member under any Loan Document (all the
foregoing in this clause (d), collectively, the
Indemnified Liabilities
),
provided
, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
104
settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.
All amounts due under this Section 11.5 shall be payable not later than 10 Business Days after
written demand therefor. Statements payable by the Borrower pursuant to this Section 11.5 shall be
submitted to the Borrower, at the address of the Borrower
set forth in Section 11.2, or to such other Person or address as may be hereafter designated
by the Borrower in a written notice to the Administrative Agent. The agreements in this Section
11.5 shall survive repayment of the Term Loans and all other amounts payable hereunder.
11.6.
Successors and Assigns; Participations and Assignments
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more Eligible Assignees (each, an
Assignee
) all or a portion of
its rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld) of:
(A) the Borrower,
provided
that no consent of the Borrower shall be required for an (x)
assignment to a Lender, an affiliate of a Lender, an Approved Fund or, if an Event of
Default has occurred and is continuing, any other Person, (y) any assignment by the
Administrative Agent (or its affiliates) or (z) any assignment of Term Loans; and
(B) the Administrative Agent,
provided
that no consent of the Administrative Agent
shall be required for (x) an assignment to an Assignee that is a Lender, an affiliate of a
Lender or an Approved Fund with respect to such Lender immediately prior to giving effect to
such assignment, except in the case of an assignment of a Revolving Commitment to an
Assignee that does not already have a Revolving Commitment,(y) any assignment by the
Administrative Agent (or its affiliates) or (z) any assignment of Term Loans; and
(C) in the case of any assignment of a Revolving Commitment, the Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitments or Loans under any Facility, the amount
105
of the Commitments or Loans of the
assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $1,000,000
unless each of the Borrower and the Administrative Agent otherwise consent,
provided
that
(1) no such consent of the Borrower shall be required if an Event of Default has occurred
and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its
Affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500,
provided
that only one such fee shall be payable in respect of contemporaneous
assignments to or from related Approved Funds;
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire; and
(D) in the case of an assignment by a Lender to an Affiliated CLO, the assigning Lender
shall retain the sole right to approve any amendment, modification or waiver of any
provision of this Agreement and the other Loan Documents,
provided
that the Assignment and
Assumption between such Lender and such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 11.1 and (2) directly affects such CLO.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lenders rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 4.9, 4.10(a), 4.11 and 11.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 11.6 shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and L/C Obligations owing to each Lender
pursuant to the terms hereof from time to time (the
Register
). The entries in the
Register shall be conclusive (absent manifest error), and the Borrower, the Administrative
Agent, the Issuing Lender and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a
106
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignees completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b)(ii) of this Section, and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more Eligible Assignees (a
Participant
) in
all or a portion of such Lenders rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans owing to it);
provided
that (A) such Lenders
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lenders rights and
obligations under this Agreement. Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement;
provided
that such agreement may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 11.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 4.9, 4.10(a) or 4.11 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
11.7(b) as though it were a Lender,
provided
such Participant shall be subject to Section
11.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
4.9 or 4.10(a) than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers prior written consent. Any Participant that is a
Non-U.S. Lender shall not be entitled to the benefits of Section 4.10(a) unless such
Participant complies with Section 4.10(d).
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest;
provided
that no such pledge or
107
assignment of a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 11.6(b). The
Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender;
provided
, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.
11.7.
Adjustments; Set-off
.
(a) Except to the extent that this Agreement expressly provides for payments to be allocated
to a particular Lender or as provided in Section 4.2(f), if any Lender (a
Benefited
Lender
) shall, at any time after the Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 9, receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section
9(f), or otherwise), in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited
Lender shall purchase for cash from the other Lenders a participating interest in such portion of
the Obligations owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders;
provided
,
however
,
that if all or any portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower, as the case may be. Each
108
Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff
and application made by such Lender,
provided
that the failure to give such notice shall not affect
the validity of such setoff and application.
11.8.
Counterparts
. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.
11.9.
Severability
. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
11.10.
Integration
. This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Agents and the Lenders with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties by any Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
11.11.
GOVERNING LAW
.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
11.12.
Submission To Jurisdiction; Waivers
. The Borrower, each Agent and each Lender hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, at its address set forth in Section 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
109
(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
11.13.
Acknowledgments
. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(b) no Agent or Lender has any fiduciary relationship with or duty to the Borrower arising out
of or in connection with this Agreement or any of the other Loan Documents, and the relationship
between the Agents and Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the
Lenders.
11.14.
Releases of Guarantees and Liens
.
(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,
the Administrative Agent is hereby irrevocably authorized by each Secured Party (without
requirement of notice to or consent of any Secured Party except as expressly required by Section
11.1) to take any action requested by the Borrower having the effect of releasing any Collateral or
guarantee obligations, and the Administrative Agent shall take any such action requested by the
Borrower in a timely manner, (i) to the extent necessary to permit consummation of any transaction
not prohibited by any Loan Document or that has been consented to in accordance with Section 11.1
or (ii) under the circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the other Obligations (other
than obligations under or in respect of Hedge Agreements and other contingent Obligations) shall
have been paid in full (or cash collateralized in a manner satisfactory to the Administrative
Agent), the Commitments have been terminated and no Letters of Credit shall be outstanding and,
except as otherwise agreed by the affected Qualified Counterparties, the net termination liability
under or in respect of, and other amounts due and payable under, Specified Hedge Agreements at such
time shall have been paid in full or secured by a collateral arrangement satisfactory to the
Qualified Counterparty in its reasonable discretion, the Collateral shall be released from the
Liens created by the Security Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent and each Group
Member under the Security Documents shall terminate, all without delivery of any instrument or
performance of any act by any Person.
110
11.15.
Confidentiality
. (a) Each Lender shall hold all non-public information regarding
Superholdings and its Subsidiaries and their businesses identified as such by the Borrower and
obtained by such Lender pursuant to the requirements hereof in accordance with such Lenders
customary procedures for handling confidential information of such nature, it being understood and
agreed by the Borrower that, in any event, a Lender may make (i) disclosures of such information to
Affiliates of such Lender and to their agents and advisors (and to other persons authorized by a
Lender or Agent to organize, present or disseminate such information in connection with disclosures
otherwise made in accordance with this Section 11.15) on a need to know basis, (ii) disclosures of
such information reasonably required by any bona fide or potential assignee, transferee or
participant in connection with the contemplated assignment, transfer or participation by such
Lender of any Loans or any participations therein, (iii) disclosure to any rating agency when
required by it,
provided
that, prior to any disclosure, such rating agency shall undertake in
writing to preserve the confidentiality of any confidential information relating to the Group
Members received by it from any of the Agents or any Lender, (iv) disclosure necessary in
connection with the defense of any action, suit or investigation brought against a Lender,
provided, that such Lender shall make reasonable efforts to provide the Borrower with notice of
such disclosure request so that the Borrower may seek a protective order or other appropriate
remedy, and (v) disclosures required or requested by any governmental or regulatory agency or
representative thereof, and self-regulatory organization or representative thereof, or by the NAIC
or pursuant to legal or judicial process;
provided
, unless specifically prohibited by applicable
law or court order, each Lender shall make reasonable efforts to notify the Borrower of any request
by any governmental agency or representative thereof or any self-regulatory organization or
representative thereof (other than any such request in connection with any examination of the
financial condition or other routine examination of such Lender by such governmental or regulatory
agency) for disclosure of any such non-public information prior to disclosure of such information.
Each Agent and Lender acknowledges that the information received from any Loan Party or any
Affiliate thereof relating to any Loan Party or any Affiliate thereof or their respective
businesses, other than any such information that is available to such Agent or Lender on a
nonconfidential basis prior to disclosure by any Loan Party or any Affiliate thereof, may include
material non-public information concerning the Loan Parties or an Affiliate of the Loan Parties, as
the case may be.
(b)
Auction-Related Confidentiality Provisions
. If Superholdings or any of its
Affiliates (
Applicant
) holds a disclosable interest of 10% or greater in any entity which
has submitted an application to participate in an auction conducted by the FCC, the Borrower shall
promptly notify the Administrative Agent of such application, and each Lender and each Agent
acknowledge and agree that Applicant will be subject to 47 C.F.R § 1.2105(c), the Anti-Collusion
rule of the FCC (the
Anti-Collusion Rule
). In order to avoid any possible violation of
the Anti-Collusion Rule, each Lender and each Agent agree that during the time the Anti-Collusion
Rule shall apply, they shall not (a) discuss with, or disclose in any manner to, any representative
of Applicant any Bidding Information (as hereinafter defined) pertaining to any other applicant in
such auction if such information comes to the attention of such Lender or Agent; (b) discuss with,
or disclose in any manner to, any representative of another auction applicant Bidding Information
(as hereinafter defined) pertaining to Applicant in such auction if such information comes to the
attention of such Lender or such Agent. For purposes of this Agreement, the term
Bidding
Information
encompasses information pertaining to the markets
111
in which an auction applicant is
eligible to bid, the bidding eligibility and/or financial resources that an auction applicant has
at any particular point in time, the substance of the applicants bids or bidding strategy,
information with respect to any settlement discussions or settlement agreement pertaining to the
licenses and applicants involved in an auction, information with respect to the post-auction market
structure involving the licenses being auctioned in an auction and any other information that could
reasonable be expected to affect an applicants bids or bidding strategy in, or to undermine the
integrity of, an auction.
11.16.
WAIVERS OF JURY TRIAL
. THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.17.
Delivery of Addenda
. Each initial Lender shall become a party to this Agreement by
delivering to the Administrative Agent an Addendum duly executed by such Lender.
11.18.
USA PATRIOT Act
. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Publ. L. 107-56 (signed into law October 26,
2001)), (the
Patriot Act
), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Patriot
Act.
11.19.
Certain Regulatory Requirements
. Any provision herein or in any other Loan Document
to the contrary notwithstanding, no Agent or Lender will take any action pursuant to this
Agreement, the Guarantee and Collateral Agreement, or any other agreement between any Loan Party
and such Agent or Lender that would constitute or result in any
de facto
or
de jure
assignment of
an FCC
license or transfer of control of any Loan Party, if such assignment of license or transfer of
control would require under then existing law (including the written rules and regulations
promulgated by, and published policies of, the FCC), the prior approval of the FCC, without first
obtaining such approval of the FCC.
11.20.
Preservation of Priority
. It is the intention of each of the parties hereto that the
Original Credit Agreement be amended and restated in its entirety pursuant to this Agreement so as
to preserve the perfection and priority of all Liens securing indebtedness and obligations under
the Original Credit Agreement and that all Indebtedness and Obligations of the Borrower and the
other Loan Parties hereunder shall be secured by the Liens evidenced under the Loan Documents and
that this Agreement does not constitute a novation or termination of the obligations and
liabilities existing under the Original Credit Agreement, except for the permanent repayment (or
deemed repayment) of the Refinanced Indebtedness as stated herein.
[Signature Pages to Follow]
112
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.
|
|
|
|
|
|
METROPCS WIRELESS, INC.
|
|
|
By:
|
/s/ Roger D. Linquist
|
|
|
|
Name:
|
Roger D. Linquist
|
|
|
|
Title:
|
President and Chief Executive Officer
|
|
|
|
BANC OF AMERICA SECURITIES LLC, as Joint Bookrunner
|
|
|
By:
|
/s/
Jonathan F. Lindeall
|
|
|
|
Name:
|
Jonathan F. Lindeall
|
|
|
|
Title:
|
Vice President
|
|
|
|
BEAR, STEARNS & CO. INC., as Sole Lead Arranger and
Sole Bookrunner
|
|
|
By:
|
/s/
Victor Bulzacchelli
|
|
|
|
Name:
|
Victor Bulzacchelli
|
|
|
|
Title:
|
Authorized Agent
|
|
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Bookrunner
|
|
|
By:
|
/s/
John C. Rowland
|
|
|
|
Name:
|
John C. Rowland
|
|
|
|
Title:
|
Vice President
|
|
|
|
BEAR STEARNS CORPORATE LENDING INC., as
Administrative Agent, as Syndication Agent and as a
Lender
|
|
|
By:
|
/s/
Victor Bulzacchelli
|
|
|
|
Name:
|
Victor Bulzacchelli
|
|
|
|
Title:
|
Vice President
|
|
1
|
|
|
|
|
|
BANK OF AMERICA, N.A., as Issuing Lender
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
2
Annex A
PRICING GRID FOR REVOLVING LOANS, SWINGLINE LOANS AND COMMITMENT FEES
|
|
|
|
|
|
|
|
|
Applicable Margin
|
|
Applicable Margin
|
|
|
Pricing Level
|
|
for Eurodollar Loans
|
|
for Base Rate Loans
|
|
Commitment Fee Rate
|
I
|
|
2.500%
|
|
1.500%
|
|
0.500%
|
|
|
|
|
|
|
|
II
|
|
2.250%
|
|
1.250%
|
|
0.375%
|
|
|
|
|
|
|
|
III
|
|
2.000%
|
|
1.000%
|
|
0.250%
|
The Applicable Margin for Revolving Loans, Swingline Loans and the Commitment Fee Rate shall be
adjusted, on and after the first Adjustment Date (as defined below) occurring after the Closing
Date, based on changes in the Consolidated Senior Secured Leverage Ratio, with such adjustments to
become effective on the date (the
Adjustment Date
) that is three Business Days after the
date on which the relevant financial statements are delivered to the Lenders pursuant to Section
7.1 and to remain in effect until the next adjustment to be effected pursuant to this paragraph.
If any financial statements referred to above are not delivered within the time periods specified
in Section 7.1, then, until the date that is three Business Days after the date on which such
financial statements are delivered, the highest rate set forth in each column of the Pricing Grid
shall apply. On each Adjustment Date, the Applicable Margin for Revolving Loans, Swingline Loans
and the Commitment Fee Rate shall be adjusted to be equal to the Applicable Margins and Commitment
Fee Rate opposite the Pricing Level determined to exist on such Adjustment Date from the financial
statements relating to such Adjustment Date.
As used herein, the following rules shall govern the determination of Pricing Levels on each
Adjustment Date:
Pricing Level I
shall exist on an Adjustment Date if the Consolidated Senior
Secured Leverage Ratio for the relevant period is greater than 3.50 to 1.00.
Pricing Level II
shall exist on an Adjustment Date if the Consolidated Senior
Secured Leverage Ratio for the relevant period is less than or equal to 3.50 to 1.00 but greater
than 3.00 to 1.00.
Pricing Level III
shall exist on an Adjustment Date if the Consolidated Senior
Secured Leverage Ratio for the relevant period is less than or equal to 3.00 to 1.00.
3