<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1997.
REGISTRATION NO. 333-07161
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
GENERAL WIRELESS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 4812 75-2550006
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
----------------
8144 WALNUT HILL LANE
SUITE 600
DALLAS, TEXAS 75231
(214) 265-2550
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
THE REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
ROGER D. LINQUIST
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GENERAL WIRELESS, INC.
8144 WALNUT HILL LANE
SUITE 600
DALLAS, TEXAS 75231
(214) 265-2550
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
COPIES TO:
EDWARD M. LEONARD, ESQ. JOHN D. WATSON, JR., ESQ.
BROBECK, PHLEGER & HARRISON LLP LATHAM & WATKINS
TWO EMBARCADERO PLACE 1001 PENNSYLVANIA AVE., N.W.
2200 GENG ROAD SUITE 1300
PALO ALTO, CALIFORNIA 94303 WASHINGTON, D.C. 20004-2505
(415) 424-0160 (202) 637-2200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
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<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information required in this Part I is contained in Part I of Amendment
No. 2 to the Registrant's Registration Statement on Form S-1 (Registration No.
333-07161), as filed with the Securities and Exchange Commission on December
23, 1996, which is incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Senior Discount Notes being registered. All amounts are
estimates except the SEC registration fee and the NASD filing fees.
<TABLE>
<S> <C>
SEC Registration fee............................................. $65,432
Nasdaq listing fee............................................... *
NASD fee......................................................... *
Printing and engraving........................................... *
Legal fees and expenses of the Company........................... *
Accounting fees and expenses..................................... *
Blue sky fees and expenses....................................... *
Transfer agent fees.............................................. *
Miscellaneous.................................................... *
-------
Total.......................................................... $ *
=======
</TABLE>
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, as amended ("Delaware
Law"), provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Section 145 further provides that a corporation similarly may
indemnify any such person serving in any such capacity who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor, against expenses actually and reasonably incurred in connection
with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware Court of Chancery or such other court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
II-1
<PAGE>
Section 102(b)(7) of Delaware Law permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of Delaware Law (relating to unlawful payment of dividends and unlawful stock
purchase and redemption) or (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that the
Registrant's directors shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that exculpation from liabilities is not permitted under
Delaware Law as in effect at the time such liability is determined. The
Registrant has entered into indemnification agreements with all of its
officers and directors, as permitted by Delaware Law. Reference is also made
to Section 6 of the Underwriting Agreement contained in Exhibit 1.1 hereto,
indemnifying officers and directors of the Registrant against certain
liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) Since inception, the Registrant has issued and sold the following
securities (as adjusted to reflect the stock conversions and exchanges
effected to date, as well as the proposed 10-for-1 split to be effected prior
to the effectiveness of this Registration Statement) but does not reflect the
conversion of Class B Common Stock into Class C Common Stock:
1. On July 18, 1994, September 30, 1994 and June 2, 1995, the Registrant
issued and sold an aggregate of 1,038,710 shares of Class B Common Stock
at a price of $2.74 per share to its founding members consisting of
Messrs. Roger Linquist, Malcolm Lorang, entities affiliated with Accel
Partners and Battery Ventures III, L.P. (193,990 of which were
repurchased by the Company in December 1995). In addition, on December
1, 1995, entities affiliated with Accel Partners received warrants to
purchase 574,990 shares of Class C Common Stock at an exercise price of
$10.00 per share in connection with the exchange of securities effected
in November 1995.
2. On December 1, 1995, December 28, 1995 and May 20, 1996, the Registrant
issued and sold to several private placement investors the following:
(a) 210,000 shares of Class B Common Stock and warrants to purchase
105,000 shares of Class B Common Stock with an exercise price of
$5.00 per share for an aggregate price of $1,050,000 ($10.00 for
each unit consisting of two shares of Class B Common Stock and a
warrant to purchase one share of Class B Common Stock);
(b) 5,023,520 shares of Class C Common Stock and warrants to purchase
2,511,760 shares of Class C Common Stock with an exercise price of
$10.00 per share for an aggregate purchase price of $50,235,200
($20.00 for each unit consisting of two shares of Class C Common
Stock and warrant to purchase one share of Class C Common Stock);
(c) 1,000,000 shares of Class C Common Stock and warrants to purchase
50,000 shares of Class C Common Stock with an exercise price of
$10.00 per share for an aggregate price of $10,000,000 ($20.00 for
each unit consisting of two shares of Class C Common Stock and a
warrant to purchase 0.1 shares of Class C Common Stock);
(d) Warrants to purchase 200,000 shares of Class C Common Stock at an
exercise price of $5.00 per share and warrants to purchase 400,000
shares of Class C Common Stock at an exercise price of $0.001 per
share for an aggregate price of $3,999,600 ($19.998 for each unit
consisting of one warrant to purchase one share with an exercise
price of $10.00 per share and one warrant to purchase two shares
with an exercise price of $0.001 per share);
In addition, on February 20, 1996, the Registrant issued 68,870 shares of
Class C Common Stock to its placement agent in connection with the
placements effected in December 1995, pursuant to the terms of the
Registrant's Engagement Letter with the agent. See Exhibit 10.2.
II-2
<PAGE>
3. On December 1, 1995, the Company issued warrants to purchase 50,000
shares of Class C Common Stock with an exercise price of $10.00 per
share to an advisor to the Company for advisory services rendered.
4. On March 15, 1996, the Registrant and Hyundai entered into a Stock
Purchase Agreement (Exhibit 10.8) under which the Registrant is
obligated to purchase and Hyundai is obligated to purchase up to
5,000,000 units at a price of $10.00 per unit, each unit consisting of
one share of Class C Common Stock and one warrant to purchase 0.05
shares of Class C Common Stock with an exercise price of $10.00 per
share. This transaction is conditioned upon and subject to (a)
governmental approval (including approval by the Republic of Korea and
the Federal Trade Commission), (b) the Registrant obtaining certain
number of PCS licenses and (c) restrictions under the rules and
regulations promulgated by the Federal Communications Commission and
under telecommunications laws, in particular, regarding the amount of
foreign investment in the Registrant.
5. The Registrant has granted stock options to purchase 2,041,930 shares of
Class B Common Stock with an exercise price of $5.00 per share to
employees, directors and consultants under its 1995 Stock Option Plan.
The issuances described in Item 15(a)(1) were deemed exempt from
registration under the Securities Act in reliance upon Rule 701 promulgated
under the Securities Act. The issuances of the securities described in item
15(a)(2) were deemed to be exempt from registration under the Act in reliance
on Section 4(2) of the Act as transactions by an issuer not involving any
public offering. In addition, the recipients of securities in each such
transaction represented their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates issued in such transactions. All recipients had adequate access,
through their relationships with the Registrant, to information about the
Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1** Form of Underwriting Agreement (preliminary form).
3.1* Certificate of Incorporation of the Registrant, as amended to date.
3.2* Bylaws of the Registrant, as amended.
3.3** Amended and Restated Certificate of Incorporation of the Registrant, to be
filed prior to the effectiveness of the Stock Offering.
3.4** Amended and Restated Bylaws of the Registrant, to become effective upon the
effectiveness of the Stock Offering.
4.1* Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2** Specimen Class C Common Stock certificate.
4.3* Registration Rights Agreement dated December 1, 1995, among the Registrant and
the investors named therein, as amended.
4.4* Stockholders Agreement dated December 1, 1995, among the Registrant and the
stockholders named therein, as amended.
4.5* Form of Subscription Agreements entered into between the Registrant and its
existing Class B and Class C Common Stock investors.
4.6* Form of Class B Common Stock Warrant.
4.7* Form of Class C Common Stock Warrant.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1* Form of Indemnification Agreement entered into between the Registrant and its
directors and officers.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
10.2* Engagement Letter dated December 9, 1994, Agency Agreement, dated November 20,
1995, Placement Certificate, dated December 1, 1995, by and between the
Registrant and Bear, Stearns & Co. Inc.
10.3* Procurement Agreement, effective December 1, 1995, among the Registrant, Mitsui
Comtek Corp. and Mitsui & Co. (U.S.A.), Inc.
10.4* Loan Agreement, dated March 15, 1996, among the Registrant and Hyundai
Electronics America ("Hyundai"), including form of promissory note.
10.5* Stock Purchase Agreement, dated March 15, 1996, among the Registrant and
Hyundai.
10.6+* Equipment Purchase Agreement, dated March 15, 1996, among the Registrant and
Hyundai Electronics Industries Co., Ltd. ("HEI").
10.7* Employee Training Agreement, dated March 15, 1996, among the Registrant and
HEI.
10.8+ General Agreement for Purchase of Personal Communications Services Systems
between the Registrant and Lucent Technologies, Inc. dated August 30, 1996.
10.9+ Commitment Letter from Lucent Technologies, Inc. to the Company dated December
5, 1995.
11.1** Computation of Earnings/(Loss) Per Share.
21.1* Subsidiaries of the Registrant.
23.1* Consent of Arthur Andersen LLP, Independent Public Accountants (see page II-7).
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1* Power of Attorney (see page II-5).
27.1* Financial Data Schedule.
</TABLE>
- --------
* Previously filed.
** To be supplied by amendment.
+ Certain portions of this Exhibit, for which confidential treatment has been
requested, have been omitted and filed separately with the Securities and
Exchange Commission.
(B) FINANCIAL STATEMENT SCHEDULES--All required information is set forth in
the consolidated financial statements included in the Prospectus constituting
part of this Registration Statement.
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
financial statements or notes thereto.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware Corporations Law, the Certificate of
Incorporation or the Bylaws of the Registrant, Indemnification Agreements
entered into between the Registrant and its officers and directors, the
Underwriting Agreement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered hereunder, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 4 TO REGISTRATION STATEMENT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF DALLAS, STATE OF TEXAS, ON THIS 28TH DAY OF JANUARY, 1997.
General Wireless, Inc.
/s/ Roger D. Linquist
By: _________________________________
Roger D. Linquist
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Roger D. Linquist President and Chief January 28, 1997
- ------------------------------------- Executive Officer
(ROGER D. LINQUIST) (Principal
Executive Officer),
Chairman of the
Board of Directors
and Secretary
/s/ Dennis G. Spickler Vice President of January 28, 1997
- ------------------------------------- Finance and
(DENNIS G. SPICKLER) Chief Financial
Officer (Principal
Financial and
Accounting Officer)
* Director January 28, 1997
- -------------------------------------
(ROBERT G. BARRETT)
* Director January 28, 1997
- -------------------------------------
(RALPH M. BARUCH)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director January 28, 1997
- -------------------------------------
(FREDERIC C. HAMILTON)
* Director January 28, 1997
- -------------------------------------
(JOSEPH T. MCCULLEN, JR.)
* Director January 28, 1997
- -------------------------------------
(ARTHUR PATTERSON)
* Director January 28, 1997
- -------------------------------------
(JOHN SCULLEY)
* Director January 28, 1997
- -------------------------------------
(TOSHIHIRO SOEJIMA)
/s/ Roger D. Linquist
*By:_________________________________
(ROGER D. LINQUIST)
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
----------- ----------- --------
<C> <C> <S>
1.1** Form of Underwriting Agreement (preliminary form).
3.1* Certificate of Incorporation of the Registrant, as amended to date.
3.2* Bylaws of the Registrant, as amended.
3.3** Amended and Restated Certificate of Incorporation of the Registrant,
to be filed
prior to the effectiveness of the Stock Offering.
3.4** Amended and Restated Bylaws of the Registrant, to become effective
upon the effectiveness of the Stock Offering.
4.1* Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2** Specimen Class C Common Stock certificate.
4.3* Registration Rights Agreement dated December 1, 1995, among the
Registrant and
the investors named therein, as amended.
4.4* Stockholders Agreement dated December 1, 1995, among the Registrant
and the
stockholders named therein, as amended.
4.5* Form of Subscription Agreements entered into between the Registrant
and its
existing Class B and Class C Common Stock investors.
4.6* Form of Class B Common Stock Warrant.
4.7* Form of Class C Common Stock Warrant.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1* Form of Indemnification Agreement entered into between the Registrant
and its
directors and officers.
10.2* Engagement Letter dated December 9, 1994, Agency Agreement, dated
November 20, 1995, Placement Certificate, dated December 1, 1995, by
and
between the Registrant and Bear, Stearns & Co. Inc.
10.3* Procurement Agreement, effective December 1, 1995, among the
Registrant, Mitsui
Comtek Corp. and Mitsui & Co. (U.S.A.), Inc.
10.4* Loan Agreement, dated March 15, 1996, among the Registrant and
Hyundai
Electronics America ("Hyundai"), including form of promissory note.
10.5* Stock Purchase Agreement, dated March 15, 1996, among the Registrant
and
Hyundai.
10.6+* Equipment Purchase Agreement, dated March 15, 1996, among the
Registrant and
Hyundai Electronics Industries Co., Ltd. ("HEI").
10.7* Employee Training Agreement, dated March 15, 1996, among the
Registrant and
HEI.
10.8+ General Agreement for Purchase of Personal Communications Services
Systems
between the Registrant and Lucent Technologies, Inc. dated August
30, 1996.
10.9+ Commitment Letter from Lucent Technologies, Inc. to the Company dated
December 5, 1995.
11.1** Computation of Earnings/(Loss) Per Share.
21.1* Subsidiaries of the Registrant.
23.1* Consent of Arthur Andersen LLP, Independent Public Accountants (see
page II-7).
23.2* Consent of Counsel. Reference is made to Exhibit 5.1.
24.1* Power of Attorney (see page II-5).
27.1* Financial Data Schedule.
</TABLE>
- --------
*Previously filed.
**To be supplied by amendment.
+ Certain portions of this Exhibit, for which confidential treatment has been
requested, have been omitted and filed separately with the Securities and
Exchange Commission.
<PAGE>
EXHIBIT 10.8
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
[LUCENT TECHNOLOGIES LOGO]
LUCENT TECHNOLOGIES
PCS PROGRAM
GENERAL WIRELESS, INC.
LUCENT TECHNOLOGIES -- PROPRIETARY
Use Pursuant to Company Instructions
<PAGE>
TABLE OF CONTENTS
GENERAL AGREEMENT FOR PURCHASE
OF PERSONAL COMMUNICATIONS SERVICES SYSTEMS
BETWEEN GENERAL WIRELESS, INC.
AND LUCENT TECHNOLOGIES INC.
ARTICLE I - GENERAL PROVISIONS
<TABLE>
<S> <C>
1.1 HEADINGS AND DEFINITIONS:.................................... 1
1.2 TERM OF AGREEMENT:........................................... 4
1.3 SCOPE:....................................................... 4
1.4 PURCHASE OF INITIAL ORDER:................................... 4
1.5 ADDITIONS TO AN INITIAL ORDER:............................... 4
1.6 PLANNING INFORMATION:........................................ 5
1.7 ORDERS:...................................................... 5
1.8 ORDER ACCEPTANCE:............................................ 5
1.9 CHANGES IN CUSTOMER'S ORDERS:................................ 6
1.10 PRICES:..................................................... 6
1.11 INVOICES AND TERMS OF PAYMENT:.............................. 7
1.12 DELIVERY AND INSTALLATION SCHEDULE:......................... 7
1.13 TRANSPORTATION:............................................. 7
1.14 PACKING, MARKING, AND SHIPPING:............................. 8
1.15 TITLE AND RISK OF LOSS:..................................... 8
1.16 COMPLIANCE WITH LAWS:....................................... 9
1.17 TAXES:...................................................... 9
1.18 TRAINING:................................................... 9
1.19 TERMINATION FOR CONVENIENCE:................................ 9
1.20 CANCELLATION FOR BREACH:.................................... 10
1.21 PATENTS, TRADEMARKS AND COPYRIGHTS:......................... 10
1.22 USE OF INFORMATION:......................................... 11
1.23 NOTICES:.................................................... 11
1.24 RIGHT OF ACCESS:............................................ 12
1.25 INDEPENDENT CONTRACTOR:..................................... 12
1.26 CUSTOMER'S REMEDIES:........................................ 12
1.27 FORCE MAJEURE:.............................................. 13
1.28 ASSIGNMENT:................................................. 13
1.29 PUBLICITY:.................................................. 13
1.30 APPLICABLE LAW:............................................. 14
1.31 SURVIVAL OF OBLIGATIONS:.................................... 14
1.32 SEVERABILITY:............................................... 14
</TABLE>
i
LUCENT TECHNOLOGIES PROPRIETARY
1/17/97 Agmt. No PCS960829JFA
<PAGE>
<TABLE>
<S> <C>
1.33 NON-WAIVER:................................................. 14
1.34 CUSTOMER RESPONSIBILITY:.................................... 14
1.35 PUBLICATION OF AGREEMENT:................................... 14
1.36 DISPUTE RESOLUTION:......................................... 15
2.1 GENERAL:..................................................... 15
2.2 PRODUCT AVAILABILITY:........................................ 15
2.3 DOCUMENTATION:............................................... 15
2.3 (A) PRODUCT ACCEPTANCE:....................................... 16
2.4 PRODUCT COMPLIANCES:......................................... 16
2.5 PRODUCT CHANGES:............................................. 16
2.6 CONTINUING PRODUCT SUPPORT - PARTS AND SERVICES:............. 16
2.7 SPECIFICATIONS:.............................................. 17
2.8 CUSTOMER TECHNICAL SUPPORT:.................................. 17
2.9 PRODUCT WARRANTY:............................................ 17
3.1 GENERAL:..................................................... 19
3.2 LICENSE:..................................................... 19
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY:..................... 20
3.4 CHANGES IN LICENSED MATERIALS:............................... 20
3.5 MODIFICATIONS TO SOFTWARE:................................... 20
3.6 MODIFICATION BY CUSTOMER:.................................... 20
3.7 RELATED DOCUMENTATION:....................................... 21
3.8 SOFTWARE WARRANTY............................................ 21
3.9 CANCELLATION OF LICENSE:..................................... 22
3.10 TAXES APPLICABLE TO SOFTWARE:............................... 22
4.1 GENERAL:..................................................... 23
4.2 ACCEPTANCE OF INSTALLATION:.................................. 23
4.3 CONDITIONS OF INSTALLATION AND OTHER SERVICES
PERFORMED ON CUSTOMER'S SITE:................................ 23
4.4 WORK DONE BY OTHERS:......................................... 26
4.5 SERVICES WARRANTIES:......................................... 27
5.1 STATEMENT OF WORK:........................................... 27
5.2 PRICING/PAYMENT TERMS:....................................... 28
5.3 ITEMS PROVIDED BY CUSTOMER:.................................. 28
5.4 SITE VARIATIONS/DISCREPANCIES:............................... 28
5.5 WARRANTIES:.................................................. 29
5.6 INSURANCE.................................................... 29
5.7 ACCEPTANCE OF SERVICES....................................... 30
6.1 ENTIRE AGREEMENT:............................................ 30
</TABLE>
ATTACHMENT A - DESCRIPTION AND QUANTITIES OF INITIAL ORDER
ATTACHMENT B - EQUIPMENT PRICING
ATTACHMENT C - ACCEPTANCE
ii
LUCENT TECHNOLOGIES PROPRIETARY
1/17/97 Agmt. No. PCS960829JFA
<PAGE>
ATTACHMENT D - CUSTOMER AND SELLER SCOPE OF WORK
ATTACHMENT E - RF ENGINEERING
ATTACHMENT F - NETWORK OPTIMIZATION
ATTACHMENT G - SITE ACQUISITION
ATTACHMENT H - CONSTRUCTION MANAGEMENT
ATTACHMENT I - MICROWAVE RELOCATION
ATTACHMENT J - SPECTRUM CLEARING
ATTACHMENT K - MICROWAVE FACILITIES ENGINEERING SERVICES
ATTACHMENT L - PROGRAM MANAGEMENT
ATTACHMENT M - PROJECT DEPLOYMENT DELIVERY SCHEDULE
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LUCENT TECHNOLOGIES PROPRIETARY
1/17/97 Agmt. No. PCS960829JFA
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[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
GENERAL AGREEMENT FOR PURCHASE
OF PERSONAL COMMUNICATIONS SERVICES SYSTEMS
BETWEEN GENERAL WIRELESS, INC. AND
LUCENT TECHNOLOGIES INC.
This is an agreement ("Agreement") between Lucent Technologies Inc., ("Seller"
or "Lucent"), a Delaware corporation having an office at 111 Madison Ave.,
Morristown, New Jersey 07960, and General Wireless Inc. ("Customer"), a
Delaware corporation having an office at 6688 North Central Expressway, Suite
1170, Dallas, Texas 75206.
WHEREAS, the Customer desires to provide Personal Communications Services
("PCS") at or near the 1.9 GHz bands under a license(s) issued by the Federal
Communications Commission ("FCC"); and
WHEREAS, the Customer desires Seller to be a substantial supplier of the
wireless base stations, switches, power, cable and transmission equipment and
system integration services to include but not limited to engineering services,
such as preparation of equipment specifications, and installation of the
networks, such as equipment installation, equipment removal and cable mining,
and maintenance and repair of their networks ("Services");
NOW, THEREFORE, the parties agree to the following terms and conditions.
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. For the purpose of this Agreement, the following definitions will
apply:
"Advertising" means all advertising, sales promotion, press releases, and
other publicity matters relating to performance under this Agreement;
"Affiliate" of a corporation means its Subsidiaries, any company of which
it is a Subsidiary, and other Subsidiaries of such company;
"Customer Price List" means Seller's published price notification releases
furnished by Seller for the purpose of communicating Seller's prices or
pricing related information to Customer; however, this does not include
firm price quotations;
"Designated Processor" means the Product for which the licenses to use
Licensed Materials are initially granted;
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"Firmware" means a combination of (i) hardware and (ii) Software
represented by a pattern of bits contained in such hardware;
"Form" means physical shape;
"Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections);
"Function" means product features;
"Force Majeure" means fires, strikes, riots, embargoes, explosions,
earthquakes, floods, wars, water, the elements, labor disputes, 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, or other causes beyond a party's
control whether or not similar to the foregoing;
"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);
"In Revenue Service" means use of a Product or any part thereof for
commercial service, whether or not revenue is actually being generated;
"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;
"Initial Operations Date" means, as to an Initial Order, the agreed upon
date by which Seller shall complete its delivery and installation of such
system;
"Initial Order" means the initial order for Personal Communications
Services ("PCS") Products, Services, and Licensed Materials submitted under
the terms of this Agreement, as described in Attachment A for the years
1996, 1997, 1998;
"Licensed Area" means an area for which the Federal Communications
Commission ("FCC") has granted a permit to construct a Personal
Communication Services 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;
"PCS System" means Personal Communications Services System, which would
consist of, the minimally necessary Products, Licensed Materials,
Services, and integration thereof necessary to provide PCS within any
definable geographic area.
"Product" means systems, equipment, and parts thereof, other than Turnkey
Items, but the term does not mean Software whether or not such Software is
part of Firmware;
"Product Manufacturing Information" means manufacturing drawings and
specifications of raw materials and components, including part
manufacturing drawings and specifications covering
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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;
"Related Documentation" means materials useful in connection with 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;
"Repair Parts' means new, remanufactured, reconditioned, refurbished, or
functionally equivalent parts for the maintenance, replacement, and repair
of Products sold pursuant to this Agreement;
"Seller's Manufactured Product" means a Product manufactured by Seller or
purchased by it pursuant to its procurement specifications (e.g., KS or
AT);
"Services" means the performance of work for the Customer and includes but
is not limited to: (1) 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
Order; (2) installation Services such as installation, equipment removal,
and cable mining; and (3) other Services such as maintenance and repair.
Services do not include Turnkey Services;
"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;
"Source Code" means any version of Software incorporating high-level or
assembly language that generally is not directly executable by a processor.
Except as may be expressly provided, this Agreement does not require Seller
to furnish any Source Code;
"Start Date" means, as to an Initial Order, the date upon which Seller has
received Customer's written notice that Customer has performed all Customer
responsibilities and furnished all necessary items required prior to
Seller's commencement of installation of the PCS;
"Subsidiary" of a company means a corporation the majority of whose shares
or other securities entitled to vote for election of directors is now or
hereafter owned or controlled by such company either directly or
indirectly; but any such corporation shall be deemed to be a Subsidiary of
such company only as long as such ownership or control exists;
"Territory" means the 50 states of the United States plus the District of
Columbia;
"Turnkey Item" means a good or product or a partial assembly of goods or
products furnished and, perhaps, installed by Seller as part of a Turnkey
Service but not furnished by Seller pursuant to this Agreement. A Turnkey
Item is not a Vendor Item or a Product as described in this Agreement;
"Turnkey Services" means items and activities normally the responsibility
of the Customer under this Agreement, which may include, but shall not be
limited to, project management, field coordination, construction and system
testing. Turnkey Services do not include, and are separate from, Seller's
normal engineering and installation Services;
"Use" with respect to Licensed Materials means loading the Licensed
Materials, or any portion thereof, into a processor for execution of the
instructions and tables contained in such Licensed Materials;
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"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. A Vendor Item is not a Turnkey Item;
and
"Warranty Period" means the period of time listed in the respective
WARRANTY clauses which, unless otherwise stated, commences on the date of
shipment, or if installed by Seller on acceptance by Customer or thirty
(30) days from the date Seller submits its notice of completion of its
installation whichever is sooner, and for Services, commences on the date
the Service is completed.
1.2 TERM OF AGREEMENT:
This Agreement shall be effective on the date of execution by the last of
the parties to execute this document and, except as otherwise provided herein,
shall continue in effect for a period of five (5) years. The modification or
termination of this Agreement shall not affect the rights or obligations of
either party under any order accepted by Seller before the effective date of the
modification or termination.
1.3 SCOPE:
The terms and conditions of this Agreement shall apply to all transactions
in which Seller furnishes PCS Systems and Services to Customer for Customer's
own use. Turnkey Services shall be performed by Seller, and Turnkey Items, to be
obtained by Seller for Customer, if any, shall be subject to the terms and
conditions of this Agreement, as specified in Article 5. To the extent that any
terms and conditions in any other Article of the Agreement conflict with the
provisions of this Article I, such terms and conditions supersede such
conflicting provisions of this Article I.
1.4 PURCHASE OF INITIAL ORDER:
Seller agrees to engineer, furnish and install and Customer agrees to
purchase the Initial Order in accordance with the terms and conditions contained
in this Agreement. The Initial Order will consist of the PCS Products, Licensed
Materials and Services as set forth in Attachment A to this Agreement, for the
years 1996 through 1998 . The Initial Order may be modified prior to acceptance
by Customer by written agreement of Customer and Seller.
Subject to Seller's concurrence regarding any proposed modifications to the
Initial Order, this Agreement shall be considered the order for the Initial
Order and shall, subject to the terms of this Agreement, be deemed accepted as
of the execution of this Agreement.
Notwithstanding the foregoing, neither the Seller nor the Customer shall be
obligated to perform under this Agreement if financing sufficient to cover
Customer's payment obligations hereunder, and on terms that are mutually
acceptable to the Parties, has not been secured. Further, the Parties agree
that the delivery and performance schedules shall be extended by the period of
time required to secure acceptable financing. Unless acceptable financing is
available, either Party may terminate this Agreement without recourse by
notifying the other Party in writing. The term of this Agreement shall not be
suspended or effected in any other way during such suspension of performance.
1.5 ADDITIONS TO AN INITIAL ORDER:
The parties contemplate that Customer will wish to obtain additional
Products, Licensed Materials and Services to expand the coverage of or add
features in addition to those constructed or initiated under
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the Initial Order. Orders for such additional items received by Seller during
the term of this Agreement shall be received and accepted subject to the terms
and conditions hereof.
1.6 PLANNING INFORMATION:
Except for Initial Orders, upon Seller's request, and to the extent reasonable,
feasible, and available Customer will provide to Seller forecasts of Customer's
annual Product, Software, and Services needs. Therefore, * * prior to the
requested ship date, Customer shall provide to Seller a forecast of the number
of base stations, growth frames, voice channels, CSU's, Power Cabinets, and 5ESS
Switches, among other necessary components, needed for the PCS System. This
forecast is expected to be accurate within * * .
* * months prior to requested ship date, Customer shall provide to Seller an
updated forecast of the quantity of Products necessary for the PCS System as
indicated above. This forecast is expected to be accurate within * *. If the
accuracy of this forecast deviates from the stated parameters, Seller will not
be penalized for any resulting delays for quantities above the forecast.
* * months prior to requested ship date, Customer shall provide to Seller an
updated forecast of the number of units of the 5ESS Switches and PCS Minicells,
exclusive of Software, and Services, including Turn Key Services, for the PCS
System as indicated above. This final forecast shall be submitted as an order
under clauses 1.7 Orders and 1.8 Order Acceptance, and will be processed by
Seller accordingly. However, the forecast for all orderable operating system
software shall be provided no less than * calendar days prior to requested
ship date. initial Orders shall be placed and accepted or rejected pursuant to
sections 1.7 Orders and 1.8 Order Acceptance.
1.7 ORDERS:
All 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.
All orders, including electronic orders, shall contain the information
necessary for Seller to fulfill the order.
All schedules and requested dates are subject to Seller's concurrence.
No provision or data on any order or contained in any documents attached to
or referenced in any order, any subordinate document (such as shipping
releases), shall be binding, except data necessary for Seller to fill the order.
All such other data and provisions are hereby rejected. Electronic orders shall
be binding on Customer notwithstanding the absence of a signature. Electronic
orders shall be subject to the same order acceptance confirmation procedures as
all orders under clause 1.8 Order Acceptance. Customer shall be provided a
sample order format in order to comply with the requirements herein.
1.8 ORDER ACCEPTANCE:
All orders are subject to acceptance by Seller. Seller shall acknowledge
the date of order receipt either in writing or electronic data interface format.
The mutually acknowledged date of order placement shall be the price effective
date unless such date precedes the date of order receipt by more than five (5)
business days, in which case the date of order receipt is the price effective
date for purposes of this Agreement.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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If receipt of an order is acknowledged by Seller, orders submitted for
Products, Licensed Materials, or Services in accordance with the terms and
conditions of this Agreement shall be deemed accepted within ten (10) days of
order receipt from Seller, unless Seller notifies Customer to the contrary.
If Customer submits an order requesting a delivery or completion interval
less than the interval listed in the applicable Customer Price List, Seller will
accept such order only for its standard interval. Seller will, however, attempt
to meet Customer's requested interval and provide confirmation or denial of the
requested shortened interval within twenty-one (21) days. Additional charges
may be applicable.
Seller reserves the right to place any order on hold, delay shipment,
and/or reject an order for reasonable cause, but not limited to, insufficient
credit limits. If orders are subject to non-supplier financing, Products and
Licensed Materials will not ship until the Finance Closure Agreement is signed
by both parties and any associated documents are completed. All orders are
subject to acceptance by Seller.
While it is Seller's objective to provide Customer with an acknowledgment
of each order received, it is Customer's responsibility to advise Seller of any
missing or late notifications to insure that the order has not been lost. No
order is to be considered "accepted" by Seller unless its receipt has been
acknowledged.
1.9 CHANGES IN CUSTOMER'S ORDERS:
Changes made by Customer to an accepted order shall be treated as a
separate order unless the parties expressly agree otherwise. Any such proposed
changes to an order shall be subject to the other governing provisions of this
Agreement, but shall not be rejected unreasonably. If any such change affects
Seller's ability to meet its obligations under the original order, any price,
shipment date, or completion date quoted by Seller with respect to such original
order is subject to change.
1.10 PRICES:
Prices, fees, and charges (hereinafter "prices") shall be as set forth in
Seller's Customer Price Lists, firm price quotations, specific agreements, or
other prices submitted by Seller to Customer.
In those cases where the price is to be determined from a Customer Price
List, the applicable Customer Price List shall be the issue which is in effect
on the date of Seller's receipt of the order provided that the requested
shipment or service-commencement date is in accordance with Seller's published
shipping or planning interval or thirty (30) days from the date of order
receipt, whichever is longer. Prices for Products, Licensed Materials or
services to be shipped or performed beyond such period will be established by
determining an effective order-entry date (the date required for order entry by
Seller in accordance with Customer's requested date) and applying the price from
the applicable Customer Price List as of that date.
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
will be Seller's price in effect on the date of Seller's receipt of the order
and such price will be communicated to Customer as soon as practicable
thereafter.
Seller may amend its prices, other than those subject to firm price
quotations or other agreements between the parties.
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Notwithstanding the foregoing, if Seller is delayed from completion of an
order due to any change requested by Customer or as a result of Customer's delay
in furnishing information or in performing its obligations, any price agreed to
by Seller is subject to change based on reasonably incurred increases in costs.
Unless expressly stated in writing, Seller's prices are exclusive of
charges for transportation and other related services, and any sales or other
tax or duty which Seller may be required to collect or pay upon the ordered
transaction.
1.11 INVOICES AND TERMS OF PAYMENT:
Products and Licensed Materials (including transportation charges and
taxes, if applicable) will be billed by Seller when shipped, or as soon
thereafter as practicable. Engineering will be billed upon main shipment of
Products. All fixed price per cell charges, as referenced in Attachment E, for
RF engineering, based on an assumed Initial Order of * * *, shall be invoiced
upon execution of this Agreement. RF Engineering shall be invoiced upon
execution of this Agreement. Installation will be billed as performed or as soon
thereafter as practical. Customer shall pay invoiced amounts, less any disputed
amounts, within * * days from the date of Seller's invoice. Delinquent payments
are subject to a late payment charge at the rate of * * * * per month, or
portion thereof, of the amount due (but not to exceed the maximum lawful rate).
Actual charges will be reconciled based upon the final RF engineering
configuration. Any disputed items which are determined to be invalid pursuant to
the dispute resolution process, are due for payment based upon the original
invoice date and will be subject to a retroactive late payment charge based upon
the original invoice date. Customer agrees to pay Seller's reasonable attorneys
fees and other reasonable costs incurred by Seller in collection of any amounts
invoiced hereunder. Customer shall notify Seller of any disputed invoice amounts
within * * days from the date of the invoice. Seller may apply any credit which
remains outstanding in favor of Customer to the oldest undisputed invoice which
remains in Customer's portfolio.
1.12 DELIVERY AND INSTALLATION SCHEDULE:
Customer shall notify Seller that the PCS site(s) for the Initial Order
described in Attachment A, or any subsequent purchase orders submitted under
this Agreement, are ready for installation and that Customer's responsibilities
referred to in Article IV relating to such sites have been performed or
furnished by the date mutually agreed to by the parties prior to order
acceptance. Seller shall have access to such sites on and from the date of
Seller's receipt of such notification (the "Start Date").
Additionally, the parties agree to develop, by mutual agreement, delivery and
installation schedules under which Seller shall complete its obligations as
required under the Initial Order, (described in Attachment A) and/or any
subsequent order, and submit notices of completion to Customer on or before the
Order Completion Date.
In the event that there are any deviations from the conditions upon which
this delivery schedule is predicated that are not caused by Seller or its
subcontractors, the delivery and installation schedule shall be subject to an
equitable adjustment.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
1.13 TRANSPORTATION:
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Seller's prices for Products and Licensed Materials do not include freight
charges or related transportation Services or charges therefor, 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.
Premium transportation will only be used with Customer's concurrence.
1.14 PACKING, MARKING, AND SHIPPING:
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 Customer's requests, Seller packs and/or is required to mark shipping
cartons in accordance with Customer's specifications, Seller shall invoice
Customer additional charges for such packing and/or marking.
Seller shall:
(a) Enclose a packing memorandum with each shipment and, if the shipment
contains more than one package, identify the package containing the
memorandum; and
(b) Mark Products as practicable for identification in accordance with Seller's
marking specifications (e.g., model/serial number and month and year of
manufacture).
Partial shipments under an order may be made by Seller and separately
invoiced, provided that the full order is received by the delivery date
specified in the order.
1.15 TITLE AND RISK OF LOSS:
Title (except as provided in the clause USE OF INFORMATION and in Article
III) and risk of loss to a Product, Licensed Material, or other item furnished
to Customer under this Agreement shall pass to Customer upon delivery to the
final destination established by Customer's order for the item or other
agreement of the parties. Delivery of an item to its final destination by Seller
shall be deemed complete at such time as all transportation, interim
warehousing, hauling and hoisting required to be performed by Seller or its
agents under the order for the item have been completed. Notwithstanding the
above, if sooner, title and risk of loss to the item shall pass to Customer at
the point at which Seller or Seller's supplier or agent turns over possession of
the item to Customer, Customer's employee, Customer's designated carrier,
warehouser or hoister, or other Customer's agent. For the purposes of this
clause, receipt of an item by a carrier arranged for by Seller in performance of
a Turnkey Service provided under separate agreement of the parties shall be
deemed receipt by Customer's designated carrier.
Customer shall notify Seller promptly of any claim with respect to loss
which occurs while Seller has the risk of loss and 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
acts or omissions of Customer, Customer's employees or Customer's agents.
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1.16 COMPLIANCE WITH LAWS:
Performance under this Agreement shall be subject to all applicable laws,
orders, and regulations of federal, state, and local governmental entities.
1.17 TAXES:
Customer shall be liable for and shall reimburse Seller for all taxes and
related charges, however designated, (excluding taxes on Seller's net income)
imposed upon or arising from the provision of Services, or the transfer, sale,
license, or use of Products, Licensed Materials, or other items provided by
Seller. Taxes reimbursable under this paragraph shall be separately listed on
the invoice.
Seller shall not collect the otherwise applicable tax if the front of the
order indicates that the purchase is exempt from Seller's collection of such tax
and a valid tax exemption certificate is furnished by Customer to Seller.
1.18 TRAINING:
Seller shall provide the Customer * * training 5ESS Switch technician seats
and * * training Access Manager technician seats in the Access Manager and DCS
curricula for each 5ESS Switch and Access Manager purchased . Also Seller shall
provide * Minicell technician seat for * * * Minicells purchased. Seller will
make available any additional standard training for Customer's personnel in the
planning for, operation and maintenance of Products and Software furnished
hereunder in accordance with Seller's published prices at Seller's training
locations or as mutually agreed.
1.19 TERMINATION FOR CONVENIENCE:
Customer may, upon written notice to Seller, terminate any order or portion
thereof, except with respect (i) to any order for an Initial Order, or (ii) to
Products or Licensed Materials that have already been shipped and Services that
have already been performed.
On such termination or cancellation, for those Products not shipped but
considered stock items, Customer agrees that it will pay Seller an order fee
equal to * * * of the price or licensee fee for such items, provided
that if the order is canceled at least * days prior to scheduled shipment,
no fee will be assessed. Any such cancellation fee paid will be applied to the
dollar value of equipment purchases for purposes of calculating the discounts
provided under Attachment A.
For those Products and Licensed Materials not shipped and considered
customized or non-stock items, Customer agrees to pay a fee based * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *.
Customer may issue "holds" on orders or suspend performance under this
Agreement, in whole or in part, with Seller's prior written consent and upon
terms that will compensate Seller for any actual loss, damages, or expenses, but
shall not in any case exceed the purchase prices for the amounts ordered and
suspended.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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1.20 CANCELLATION FOR BREACH:
In the event Seller or Customer is in material breach or default of this
Agreement or any order placed hereunder and such breach or default continues for
a period of eighty (80) calendar days after the receipt of written notice (and
such additional time as may be agreed upon by the parties), then Seller or
Customer shall have the right to cancel this Agreement or that part of any
order affected by the breach or default without any charge, obligation or
liability, except for those items already fully discharged. Both parties shall
cooperate in every reasonable way to facilitate the remedy of a breach or
default hereunder within such eighty (80) calendar day period.
1.21 PATENTS, TRADEMARKS AND COPYRIGHTS:
In the event of any claim, action, proceeding or suit by a third party
against Customer alleging an infringement of any United States patent, United
States copyright, or United States trademark, or a violation in the United
States of any trade secret or proprietary rights by reason of the use, in
accordance with Seller's or other applicable specifications, of any Product or
Licensed Material furnished by Seller to Customer under this Agreement, Seller,
at its expense, will defend Customer, subject to the conditions and exceptions
stated below. Seller will reimburse Customer for any reasonable cost, expense or
attorney's fee, and will indemnify Customer against any liability assessed
against Customer by final judgment on account of such infringement or violation
arising out of such use. Seller will not agree to any settlement or any
settlement compromise that requires Customer to make any payment, without
Customer's consent.
If Customer's use shall be enjoined or in Seller's opinion is likely to be
enjoined, Seller will, at its expense and at its option, either (1) replace the
enjoined Product or Licensed Material furnished pursuant to this Agreement with
a suitable substitute free of any infringement, (2) modify it so that it will be
free of the infringement, or (3) procure for Customer a license or other right
to use it. If none of the foregoing options is practical, Seller will remove
the enjoined Product or Licensed Material and refund to Customer any amounts
paid to Seller less a reasonable charge for any actual period of use by
Customer.
Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and Seller
shall have full and complete authority to assume the sole defense thereof,
including appeals, and to settle same. Customer shall, upon Seller's request and
at Seller's expense, furnish all information and assistance available to
Customer and cooperate in every reasonable way to facilitate the defense and/or
settlement of any such claim, action, proceeding or suit.
No undertaking of Seller under this clause shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Seller is directed by Customer to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product or Licensed
Material of Seller's design or selection; or (2) arises from adherence to
instructions to apply Customer's trademark, trade name, or other company
identification; or (3) resides in a Product or Licensed Material which is not of
Seller's origin and which is furnished by Customer to Seller for use under this
Agreement; or (4) relates to uses of Products or Licensed Materials provided by
Seller in combinations with other Products or Licensed Materials, furnished
either by Seller or others, which combination was not installed, recommended or
otherwise approved by Seller. In the foregoing cases numbered (1) through (4),
Customer will defend and save Seller harmless, subject to the same terms and
conditions and exceptions stated above with respect to the Seller's rights and
obligations under this clause.
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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 items furnished pursuant to this
Agreement shall be limited to the specific undertakings contained in this
clause.
1.22 USE OF INFORMATION:
All Information which bears a legend or notice restricting its use, copying
or dissemination, shall remain the property of the furnishing party. The
furnishing party grants the receiving party the right to use such Information
only as follows. Such Information (1) shall not be reproduced or copied, in
whole or part, except for use as authorized in this Agreement; and (2) shall,
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
(1) to order, (2) to evaluate Products, Licensed Materials or Services, or (3)
to install, operate, and maintain the particular Products or Licensed Materials
for which it was originally furnished. The foregoing use restrictions shall not
apply to Information that: (i) is or hereafter becomes, through no act of
failure to act on the receiving parties part, generally known in the relevant
industry; or (ii) is furnished to the receiving party by a third party as a
matter of right without restriction on disclosure; or (iii) is independently
developed by the receiving party or a third party without use of or reference to
the disclosing party's Information. Unless the furnishing party consents in
writing, such Information, except for that part, if any, which is known to the
receiving party free of any confidential obligation, or which becomes generally
known to the public through acts not attributable to the receiving party, shall
be held in confidence by the receiving party. The receiving party may disclose
such Information to other persons, upon the furnishing party's prior written
authorization, but solely to perform acts which this clause expressly authorizes
the receiving party to perform itself and further provided such other person
agrees in writing (a copy of which writing will be provided to the furnishing
party at its request) to the same conditions respecting use of Information
contained in this clause and to any other reasonable conditions requested by the
furnishing party. If the Customer also contracts with other network suppliers
("Others"), the Seller will work with Customer in good faith to ensure any data
or configurations that the Seller has made available in published standard
interfaces ("open architecture") or any other public proceedings may be provided
to Others for the purposes authorized under this clause. However, this shall not
require Seller to disclose or authorize disclosure of proprietary interface
standards or to subsidize in any way the integration of Seller's Products with
products by Others.
The term "Information" as used in this clause does not include Software
(whether or not embodied in Firmware) or Related Documentation. The use of
Software and Related Documentation is governed by Article III of this Agreement.
1.23 NOTICES:
All notices under this Agreement shall be in writing (except where
otherwise stated) and shall be addressed to the addresses set forth below or to
such other address as either party may designate by notice pursuant hereto. Such
notices shall be deemed to have been given when received at the addresses set
forth below and delivery to such address(es) has been acknowledged by the
Parties, which shall occur no later than three (3) business days after receipt
thereof.
Seller: Lucent Technologies Inc.
Post Office Box 28000
Greensboro, North Carolina 27420
Attn.: Contract Manager, Network Systems
LUCENT TECHNOLOGIES PROPRIETARY
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Customer: General Wireless, Inc.
6688 North Central Expressway
Suite 1170
Dallas, Texas 75206
Attn.: Malcolm Lorang, Chief Technical Officer
1.24 RIGHT OF ACCESS:
Each party shall provide the other access to its facilities 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 is required. Neither party shall require
releases of any personal rights in connection with visits to its premises.
1.25 INDEPENDENT CONTRACTOR:
All work performed by one party under this Agreement shall be performed as
an independent contractor and not as an agent of the other and no persons
furnished by the performing party shall be considered the employees or agents of
the other. The performing party shall be responsible for its employees'
compliance with all laws, rules, and regulations while performing work under
this Agreement.
1.26 CUSTOMER'S REMEDIES:
(a) Other than the right to cancellation pursuant to section 1.20 above,
Customer's exclusive remedies and the entire liability of Seller and its
affiliates and their employees and agents for any claim, loss, damage, or
expense of Customer or any other entity arising out of this Agreement, or
the use or performance of any Product, Licensed Material, or Service,
whether in an action for or arising out of breach of contract, tort,
including negligence indemnity, or strict liability shall be as follows:
(1) For infringement--the remedy set forth * * * * * *
* * *;
(2) For the performance of Products, Turnkey Items, Software, Services,
and Turnkey Services or claims that they do not conform to a
warranty--the remedy set forth in *
* * * *;
(3) For tangible property damage and personal injury caused by
Seller's tortious acts or omissions--* * * * * *
(4) For everything other than as set forth above--* * * * * *
* * * * * *.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER AND ITS
AFFILIATES AND THEIR EMPLOYEE AND AGENTS SHALL NOT BE LIABLE FOR
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
LUCENT TECHNOLOGIES PROPRIETARY
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INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR
SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY
PRODUCT, LICENSED MATERIALS, TURNKEY ITEMS, SERVICES OR TURNKEY SERVICES,
WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, OR STRICT LIABILITY. THIS CLAUSE 1.26(b) SHALL
SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
(c) Customer shall give Seller prompt notice of any claim. Any action or
proceeding against Seller must be brought within twenty-four (24) months
after the cause of action accrues.
1.27 FORCE MAJEURE:
Except with respect to Customer's obligation to make timely payments under
this Agreement, neither party shall be held responsible for any delay or failure
in performance to the extent that such delay or failure is caused by a Force
Majeure. Nothing contained herein or elsewhere shall impose any obligation on
either party to settle any labor difficulty.
1.28 ASSIGNMENT:
Except as provided in this clause, neither party shall assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement, (an "assignment") without the other
party's prior written consent. Any attempted assignment in contravention of this
shall be void and ineffective. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement. A party's
use of such subcontractor shall not release the party from its obligations under
this Agreement.
Notwithstanding the foregoing, Seller has 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 Customer's consent, to any present or future
Subsidiary or Affiliate of Seller or to any combination of the foregoing,
provided such assignee entity has sufficient resources and capitalization in
Customer's reasonable opinion to undertake the Seller's obligations contained in
this Agreement. Such assignment or delegation shall release Seller from any
further obligation or liability thereon. Seller shall give Customer prompt
written notice of the assignment. Customer has 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 Seller's consent, to its parent or
to any present or future Subsidiary or Affiliate of Customer or its parent
providing tariffed services, provided that Seller may require changes to the
methods of payment and/or refuse to extend credit in the same amount or manner
as to Customer's assignor. Customer shall give Seller advance written notice of
the assignment promptly upon anticipation of such assignment.
For purposes of this clause, the term "Agreement" includes this Agreement,
any subordinate contract placed under this Agreement and any order placed under
such Agreement or subordinate contract.
1.29 PUBLICITY:
Each party shall submit to the other proposed copy of all Advertising
wherein the name, trademark, code, specification or service mark of the other
party or its affiliates is mentioned; and neither party shall
LUCENT TECHNOLOGIES PROPRIETARY
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publish or use such Advertising without the other's prior written approval. Such
approval shall be granted as promptly as possible (usually within ten (10)
business days), and may be withheld only for good cause.
1.30 APPLICABLE LAW:
The construction and interpretation of, and the rights and obligations of
the parties pursuant to this Agreement, shall be governed by the laws of the
State of New York.
1.31 SURVIVAL OF OBLIGATIONS:
The parties' rights and obligations which, by their nature, would continue
beyond the termination, cancellation, or expiration of this Agreement, shall
survive such termination, cancellation, or expiration.
1.32 SEVERABILITY:
If any provision in this Agreement shall be held to be invalid or
unenforceable, the remaining portions shall remain in effect. In the event such
invalid or unenforceable provision is considered an essential element of this
Agreement, the parties shall promptly negotiate 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 order. If Customer fails to
provide the required conditions, information, data, support, or assistance,
Seller shall be discharged from any such obligation.
1.35 PUBLICATION OF AGREEMENT:
The parties shall keep the provisions of this Agreement and any order
submitted hereunder confidential except as reasonably necessary for performance
hereunder and except to the extent disclosure may be required by applicable laws
or regulations, in which latter case, the party required to make such disclosure
shall promptly inform the other prior to such disclosure in sufficient time to
enable such other party to make known any objections it may have to such
disclosure. The disclosing party shall take all reasonable steps to secure a
protective order or otherwise assure that the Agreement or order will be
withheld from the public record. In the case of Customer , this Agreement is
deemed a material Agreement that would be required to be filed in connection
with a registration statement or other filings with the Securities and Exchange
Commission, when and if applicable (subject to confidential treatment as
permitted) and may be disclosed to Customer's advisors and potential investors
subject to those non-governmental parties adopting the terms of any prevailing
non-disclosure obligations between the parties.
LUCENT TECHNOLOGIES PROPRIETARY
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Except that if such disclosure creates a conflict of interest, including but
not limited to disclosure of proprietary information to Seller's other customers
of wireless products or parties contemplating becoming Seller's customers, or
Seller's product market competitors, then the parties shall cooperate to
approve disclosure of only that Information from the Agreement which is
legitimately necessary for the purposes contemplated hereunder yet shall not
damage or jeopardize Seller's competitive interests or relations with other
customers or result in any other detriment to Seller's interests.
1.36 DISPUTE RESOLUTION:
If a dispute arises out of or relates to this Agreement, or its breach, and
if said dispute cannot be settled through negotiation, the parties agree to
submit the dispute to a sole mediator selected by the parties or, at any time at
the option of a party, to mediation by the American Arbitration Association
("AAA"). If not thus resolved it shall be referred to a sole arbitrator selected
by the parties within thirty (30) days of the mediation or, in the absence of
such selection, to AAA arbitration which shall be governed by the United States
Arbitration Act and judgment on the award may be entered in any court having
jurisdiction. The arbitrator may determine issues of arbitrability but may not
award punitive damages or limit, expand or otherwise modify the terms of the
Agreement. The parties, their representatives, other participants and the
mediator and arbitrator shall hold the existence, content and result of
mediation and arbitration in confidence.
ARTICLE II
PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS
2.1 GENERAL:
The provisions of this Article II shall be applicable to the purchase of
Products from Seller. If Software is also to be licensed for use on a purchased
Product, or if a Product is also to be engineered or installed by Seller, the
provisions of Articles III and IV shall also be applicable.
2.2 PRODUCT AVAILABILITY:
Seller shall notify Customer, at least six (6) months, before Seller
discontinues accepting orders for a Seller's Manufactured Product sold under
this Agreement. Where Seller offers a functionally equivalent Product for sale,
the notification period may vary.
2.3 DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one CD ROM
version of documentation for the Products provided hereunder, per every 5ESS
Switch / Access Manager purchased which should be sufficient to operate and
maintain such Products. Such documentation will be that customarily provided by
Seller to its Customers at no additional charge. Such documentation shall be
provided prior to, with, or shortly after the shipment of the Products from
Seller to Customer. Additionally, Customer shall be provided, upon request, with
six (6) more CD ROM versions of documentation upon request at no charge.
Additional copies of the documentation are available at prices set forth in the
Customer Price List.
LUCENT TECHNOLOGIES PROPRIETARY
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<PAGE>
2.3 (A) PRODUCT ACCEPTANCE:
The first four (4) 5ESS Switches and Access Managers and associated
Software and power equipment supplied under this Agreement shall be accepted by
Customer upon delivery independent of any obligation for subsequent
installation, if such Products meet Seller's established quality manufacturing
and production standards.
2.4 PRODUCT COMPLIANCES:
Seller represents that a Product furnished hereunder shall comply, to the
extent required, with the requirements of Part 24 of the Federal Communication
Commission's Rules and Regulations pertaining to personal communications
services in effect upon delivery of such Product. In addition, Seller represents
that a Product furnished hereunder shall comply, to the extent required, with
the requirements of Subpart J of Part 15 of the Federal Communication
Commission's Rule and Regulations in effect upon delivery of such 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 or Software by
other than Seller; (ii) Products being subjected to misuse, neglect, accident or
abuse by other than Seller; (iii) Products or Software being used in a manner
not In accordance with operating instructions or in a suitable installation
environment or operations of other equipment in the frequency range reserved for
Customer within the Licensed Area.
Seller assumes no responsibility under this clause for items not specified
or supplied by Seller. Type acceptance or certification of such items shall be
the sole responsibility of Customer.
2.5 PRODUCT CHANGES:
Prior to the shipment of 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 an order, provided the changes, modifications, or substitutions
under normal and proper use do not impact upon the Form, Fit, or Function of an
ordered Product as identified in Seller's specifications, or upon the
compatibility of the Product with other Products, the PCS System, and any other
products, components or systems supplied by third parties as part of the PCS
System to a lesser extent than that represented in writing by the Seller for the
Product(s) for which the change was introduced.
2.6 CONTINUING PRODUCT SUPPORT - PARTS AND SERVICES:
In addition to repairs provided for under Product Warranty, Seller offers
repair Services and Repair Parts in accordance with Seller's repair and Repair
Parts practices and terms and conditions then in effect, for Seller's
Manufactured Products furnished pursuant to this Agreement. Such repair Services
and Repair Parts shall be available while Seller is manufacturing or stocking
such Products or Repair Parts, but in no event less than five (5) years after
such Product's discontinued availability effective date. Seller may use either
new, remanufactured, reconditioned, refurbished, or functionally equivalent
Products or parts in the furnishing of repairs or replacements under this
Agreement.
If during the agreed to support period Seller is unable to provide Repair
Part(s) and/or repair Service(s) and a functionally equivalent replacement has
not been designated, Seller shall advise Customer,
LUCENT TECHNOLOGIES PROPRIETARY
16
<PAGE>
by written notice prior to such discontinuance 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), Seller shall provide Customer,
upon request, with non-exclusive licenses for Product Manufacturing Information
to the extent Seller can grant such licenses, so that Customer will have
sufficient information to have manufactured, or obtain such Service or parts
from other sources. License terms, including charges, will be in accordance with
Seller's licensing procedures then in effect.
2.7 SPECIFICATIONS:
Upon request, Seller shall provide to Customer, at no charge, one (1) copy
of Seller's available commercial specifications applicable to Products orderable
hereunder. Additional copies are available at the applicable price therefor.
2.8 CUSTOMER TECHNICAL SUPPORT:
Seller provides * * * * * * * * * * * * * *. For out of warranty Products,
the CTSO * * * * * * * * * * * * * * * * * * * * * * * *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
2.9 PRODUCT WARRANTY:
(a) Seller warrants to Customer only, that:
(i) As of the date title to Products passes to Customer, Seller will
have the right to sell, transfer, and assign such Products and
the title conveyed by Seller shall be good;
(ii) Seller's Manufactured Products will be free from defects in
material and workmanship, and will conform to Seller's
specification or any other agreed-upon specification referenced
in the order for such Product and;
(iii) With respect to Vendor Items, Seller, to the extent permitted,
does hereby assign to Customer the warranties 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 vendor's warranty cannot be
assigned to Customer, or if assigned, less than sixty (60) days
remain of the vendor's warranty at the time of assignment,
Seller warrants for sixty (60) days from the date of shipment
or, if installed by Seller, on acceptance by Customer or thirty
(30) days from the date Seller submits its notice of completion
of its installation whichever is sooner, that such Vendor's
Items will be free from defects in material and workmanship.
(b) The Warranty Periods listed below are applicable to Seller's Manufactured
Products furnished pursuant to this Agreement, unless otherwise stated and
begin upon delivery to the destination specified in Customer's order or,
if installed by Seller, on acceptance by Customer or thirty (30) days from
the date Seller submits its notice of completion of its installation,
whichever is sooner:
LUCENT TECHNOLOGIES PROPRIETARY
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<TABLE>
<CAPTION>
Repaired or
Class of New Replacement
Product Product* Product or Part**
-------- -------- -----------------
<S> <C> <C> <C>
PCS Switching Center and * * *
Base Station Hardware
Transmission Systems
-All Transmission Products in the
"2000 Product Family" * * *
-D4 Circuit Packs * * *
-SLC Circuit Packs * * *
-SLC Series 5 Plug-ins * * *
-T1 Repeaters * * *
-DDM-1000 Circuit Packs * * *
-Other Transmission Products * * *
Energy Systems * * *
All other Network Systems * * *
Products
</TABLE>
* Refer to the SOFTWARE WARRANTY CLAUSE for associated Software warranties.
0 ** The Warranty Period for a repaired * * * * * * * * * Product or part
thereof repaired under or for a replacement Product of Part thereof
furnished in lieu of repair under this Warranty is *, whichever is longer.
Notwithstanding anything in this Agreement to the contrary, Customer's use of
any part of any system In Revenue Service or to provide training or hands-on
experience to Customer's personnel shall, if prior to Seller's notice of
installation completion, commence the applicable warranty period; provided,
however, this provision shall not apply to training provided by Seller nor to
the extent that Customer's personnel merely familiarize themselves with the
Initial Order without actual operation of the Products.
(c) 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 notifies Seller in writing of such defect or nonconformity promptly
after Customer discovers such defect or nonconformity and follows Seller's
instructions regarding the return of the defective or nonconforming Product,
Seller shall take the following action:
(i) * * * * * * * * * * * *
* * * * * * *.
(ii) * * * * * * * * * * * *
* * * * * * *.
(d) If Seller has elected to repair or replace a defective Product, Customer is
responsible for *
* * * * * * * * * * * *
* * * * * * * * * * * *
* *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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(e) Products returned for repair or replacement will be accepted by Seller only
in accordance with its instructions and procedures for such returns. The
transportation expense associated with returning such Product to Seller
shall be borne by * *. * shall pay the cost of transportation of the
repaired or replacing Product to the destination designated by Customer
within the Territory.
(f) Defective or nonconforming Products or parts which are replaced hereunder
shall become * * 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.
(g) If Seller determines that a Product for which warranty Service is claimed is
not defective or not nonconforming, Customer shall * * * * * * * * *
* * * * * * *.
(h) Seller makes no warranty with respect to defective conditions or
nonconformities resulting from the following: * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * *
(i) THE FOREGOING PRODUCT WARRANTIES 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. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR, REPLACE, CREDIT OR
REFUND AS SET FORTH ABOVE IN THIS WARRANTY .
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
ARTICLE III
PROVISIONS APPLICABLE TO THE LICENSING OF SOFTWARE
3.1 GENERAL:
The provisions of this Article apply to the granting of licenses pursuant to
this Agreement by Seller to Customer for Licensed Materials.
3.2 LICENSE:
Upon delivery of Licensed Materials, but subject to payment of all
applicable license fees including, but not limited to, any continuing up-date
fees, Seller grants to Customer a personal, nontransferable, and nonexclusive
license pursuant to this Agreement 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. Customer shall use
Licensed Materials only for its own internal business operation.
LUCENT TECHNOLOGIES PROPRIETARY
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The license grants Customer no right to and Customer will not sublicense
such Licensed Materials, or modify, decompile, or disassemble Software furnished
as object code to generate corresponding Source Code.
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY:
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.
Except for any part of such Licensed Materials which is or becomes generally
known to the public through acts not attributable to Customer, Customer shall
hold such Licensed Materials in confidence, and shall not, without Seller's
prior written consent, disclose, provide, or otherwise make available, in whole
or in part, any Licensed Materials to anyone, except to its employees having a
need- to-know. Customer shall not copy Software embodied in Firmware. Customer
shall not make any copies of any other Licensed Materials except as necessary in
connection with the rights granted hereunder. Customer shall reproduce and
include any Seller copyright and proprietary notice on all such necessary copies
of the Licensed Materials. Customer 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. Customer shall maintain records of the
number and location of all copies of the Licensed Materials.
Customer shall take appropriate action, by instruction, agreement, or
otherwise, with the persons permitted access to the Licensed Materials so as to
enable Customer to satisfy its obligations under this Agreement.
When the Licensed Materials are no longer needed by Customer, or if
Customer's license is canceled or terminated, Customer shall return all copies
of such Licensed Materials to Seller or follow written disposition instructions
provided by Seller.
3.4 CHANGES IN LICENSED MATERIALS:
Prior to shipment, Seller may at any time modify the specifications relating
to its Licensed Materials. Seller may substitute modified Licensed Materials to
fill an order, provided the modifications, under normal and proper Use, do not
materially adversely affect the Use, Function, or performance of the ordered
Licensed Materials, .and remain compatible with other Products, the PCS System,
and any other products, components or systems supplied by third parties as part
of the PCS System to the same extent as that represented by the Seller for the
Product(s) for which the change was introduced. Unless otherwise agreed, 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:
Customer may request Seller to make changes to Seller's Software. Upon
receipt of a document describing in detail the changes requested by Customer,
Seller will respond in writing to Customer within ninety (90) days. If Seller
agrees to undertake such modifications, the response shall quote a proposed
delivery date and a fee for a license under such modified Software.
3.6 MODIFICATION BY CUSTOMER:
Unless otherwise agreed, Customer is not granted any right to modify
Software furnished by Seller under this Agreement.
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3.7 RELATED DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one copy of the
Related Documentation for Software furnished by Seller, per every 5ESS Switch /
Access Manager purchased which should be sufficient to operate and maintain such
Products. Additionally, Customer shall be provided, upon request, with six (6)
more CD ROM versions of documentation also at no charge. 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 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) Seller warrants to Customer only that:
(i) Software developed or supplied by Seller will, upon shipment, be
free from those defects which materially affect performance in
accordance with Seller's specifications or other agreed upon
specifications referenced in the order and Seller further warrants that
it has the right to grant the licenses to Use Software it grants under
this Agreement; and
(ii) With respect to Software not covered in paragraph (a), sub-
paragraph (i), Seller to the extent permitted, does hereby assign to
Customer the warranties given to Seller by its supplier of such
Software.
(b) The Warranty Periods listed below 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
Transmission Systems * *
All Other * *
The Warranty Period for media and Related Documentation shall commence on
the same date as commences 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 * * * * * * * * * * * * * * * *. The
Warranty Period of any such Software Update or Generic Release shall result
in the commencement of a new Warranty Period consistent with the foregoing
schedule.
(c) If, under normal and proper use during the applicable Warranty Period,
Software covered in paragraph (a), subparagraph (i) proves to have a defect,
which materially affects its performance in accordance with the
specifications referenced in the order, and Customer notifies Seller in
writing of such defect promptly after Customer discovers or should have
discovered such defect and follows Seller's instructions, if any, regarding
return of defective Software, Seller shall at its option, * * * * * *
* * * * * * *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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(d) Software returned for correction or replacement will be accepted by Seller
only in accordance with its instructions and procedures for such returns.
The transportation expense associated with returning such Software to Seller
shall be borne by * * * * shall pay the costs of transportation of
the corrected or replacing Software to the destination designated by
Customer within the Territory.
(e) If Seller determines that Software for which warranty Service is claimed is
not defective or nonconforming, * * * * * * * * *
* * * * * * * * * * * * * * *
(f) Seller makes no warranty with respect to defective conditions or
nonconformities resulting from the following: * * * * * *
* * * * * * * * * * * * * * *
* * * * * * * * * * * * * * *
* * * * * * * * * * * * * * *
* * * * * * * * * * * * * * *
(g) THE FOREGOING SOFTWARE WARRANTIES 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. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO CORRECT, REPLACE, CREDIT,
OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
3.9 CANCELLATION OF LICENSE:
If Customer fails to comply with any of the material terms and conditions of
this Agreement and such failure continues beyond * * * * business
days after receipt of written notice thereof by Customer, Seller, upon written
notice to Customer, may cancel any affected license for Licensed Materials.
3.10 TAXES APPLICABLE TO SOFTWARE:
Notwithstanding clause TAXES in Article I of this Agreement, 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 Customer's interpretation of the law of the taxing
jurisdiction, if (1) 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 (2) Seller
agrees that there is authority for Customer's position, provided, however, that
Customer shall hold Seller harmless for all costs and expenses (including, but
not limited to, taxes and related charges payable under clause TAXES, and
attorney's 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.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
LUCENT TECHNOLOGIES PROPRIETARY
22
<PAGE>
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 other than Services furnished pursuant to any other Article
of this Agreement.
4.2 ACCEPTANCE OF INSTALLATION:
At reasonable times during the course of Seller's installation, Customer, at
its request may, or upon Seller's request, shall, inspect completed portions of
such installation. Upon Seller's further request, and upon sufficient notice to
Customer, Customer shall observe Seller's testing of the Product being installed
to determine that such testing and the test results are in accordance with
Seller's acceptance standards or acceptance procedures, as described in
Attachment C, no more than 30 days after Seller's request. Upon Customer's
determination that the test results are satisfactory and in conformance with
Seller's acceptance standards, the installation shall be deemed accepted but in
no event any later than thirty (30) days from issuance of the Notice of
Completion. The installation work shall be considered complete and ready for
acceptance by Customer when the Product has been installed and tested by Seller
in accordance with its standard procedures, and Seller represents such Product
to be in working order. Upon completion of the installation, Seller will submit
to Customer a Notice of Completion, pursuant to section "1.23 - Notices" of
this Agreement. Where Seller's installation relates to a PCS System, separate
notices of completion shall be issued for, and separate determinations of
acceptance shall be made for (i) the PCS System, and (ii) the Initial Order, if
the Initial Order does not consist of a PCS System.
Customer shall promptly make final inspection of substantial conformance with
Seller's specifications and do everything necessary to expedite acceptance of
the job. Seller will promptly correct any defects for which it is responsible.
The job will be considered as fully accepted unless Seller receives notification
to the contrary within thirty (30) days after submitting the notice of
completion. In Revenue Service at any time after installation shall
automatically constitute acceptance of the relevant installation.
4.3 CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMER'S SITE:
ITEMS PROVIDED BY CUSTOMER
Except as the parties may have otherwise agreed for Turnkey Services, as set
forth in this Agreement or in other agreements of the parties, Customer will be
responsible for furnishing the following items (as required by the conditions of
the particular installation or other on-site Service, hereinafter collectively
referred to as the "Service") at no charge to Seller and these items will not be
included in Seller's price for the Service. Seller's representative shall have
the right to inspect the site prior to Service 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 notice,
Seller may furnish such items and charge Customer for them in addition to the
prices otherwise charged by Seller for the Service and/or, alternatively, make
an equitable adjustment to the installation delivery schedule due to any delays
caused thereby.
LUCENT TECHNOLOGIES PROPRIETARY
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Regulatory Commission Approvals--Prior to Service start date, obtain such
-------------------------------
approvals, licenses, permits, tariffs and/or other authorities from the Federal
Communications Commission and state and local public utilities commissions as
may be necessary for construction and operation of a Personal Communications
Services System.
Easements, Permits and Rights-of-Way--Prior to Service start date, provide
------------------------------------
all rights-of-way, easements, licenses to come upon land to perform the Service,
permits and authority for installation of Products and other items; permits for
opening sidewalks, streets, alleys, and highways; and construction and building
permits.
Access to Building and Work Site--Allow employees of Seller and it
--------------------------------
subcontractors free access to premises and facilities at all hours during the
scheduled Service or at such other times as are requested by Seller. Customer
shall obtain for Seller's and its subcontractors' employees any necessary
identification and clearance credentials to enable Seller and its subcontractors
to have access to the work site.
General Building Conditions--When Customer provides or arranges for a third
---------------------------
party to provide PCS, Customer shall prior to Service start date:
a. Insure 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.
No later than the date Customer places its order, Customer shall provide
Seller a certificate of a duly licensed architect or engineer (dated no
sooner than ninety (90) days prior to furnishing such certificate to
Seller) 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 and Hazardous Materials, including but not limited
to asbestos, and in such condition as not to be injurious to Seller's or
its subcontractors' employees or to the materials to be installed. Prior
to commencement of the Services and during the performance of the Service,
Customer shall, if requested by Seller, provide Seller with sufficient
data to assist Seller's supplier in evaluating the environmental
conditions at the work site (including the presence of Hazardous
Materials). The price quoted by Seller's supplier for the Service does
not include the cost of removal or disposal of the Hazardous Materials
from the work site. Customer is responsible for removing and disposing of
the Hazardous Materials, including but not limited to asbestos, prior to
commencement of the Service.
Sensitive Equipment--Prior to commencement of the Service, inform 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 thereto.
Repairs to Buildings--Prior to Service start date, make such alterations and
--------------------
repairs as are necessary for proper installation of items to be installed.
Openings in Buildings--Prior to Service 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 purposes in a working
LUCENT TECHNOLOGIES PROPRIETARY
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<PAGE>
office; provide exit lights; provide water and other necessary utilities for the
proper execution of the Service as feasible.
PCS Utility Requirements--Negotiate with the power and telephone companies
------------------------
for installation of the power and telephone facilities necessary to proper
operation of the Products and/or other items being installed. The type and
quantity of such facilities shall be subject to Seller's reasonable approval.
Customer shall have the telephone company provide, place, install, extend and
terminate telephone facilities into the PCS; line up and test the telephone
company facilities outside and inside the PCS; and provide to Seller copies of
the test results prior to Seller's commencing integration testing of the PCS.
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 Service,
----------------------------------
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
Seller's 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 Customer's 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. Seller's use of such test equipment shall not interfere with the
Customer's 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 Customer's premises.
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 the Customer's normal maintenance
of equipment.
Grounds--Customer shall provide access to suitable and isolated building
-------
ground as required for Seller's 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 Customer's drawings.
LUCENT TECHNOLOGIES PROPRIETARY
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<PAGE>
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
Seller's price for Service:
Protection of Equipment and Building--Seller shall provide protection for
------------------------------------
Customer's equipment and buildings during the performance of the Service and in
accordance with Seller's 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 Seller's
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--Maintenance of Products, Software and other items from
-----------
completion of installation until date of acceptance.
Locally Purchased Items--Purchase of items indicated by Seller's
-----------------------
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 Customer's 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.
4.4 WORK DONE BY OTHERS:
Work done at the site by Customer or its other vendors or contractors shall
not interfere with Seller's performance of the installation or other Services.
If Customer or its other vendors or contractors fail to timely complete the site
readiness or if Customer's or its other vendors or contractors' work interferes
with Seller's performance, the scheduled completion date of Seller's Services
under this agreement shall be extended as necessary to compensate for such delay
or interference.
LUCENT TECHNOLOGIES PROPRIETARY
26
<PAGE>
4.5 SERVICES WARRANTIES:
(a) Seller warrants to Customer only, that Services will be performed in a
careful and workmanlike manner and in accordance with Seller's
specifications or those referenced in the order and with accepted practices
in the community in which such Services are performed, using material free
from defects except where such material is specified or provided by
Customer. If Services prove to be not so performed and if Customer notifies
Seller, with respect to engineering, installation, or repair Services,
within a six (6) month period commencing on the date of completion of the
Service, and with respect to other Services, as identified by Seller in
writing, Seller, at its option, either will correct the defective or
nonconforming Service or render a full or prorated refund or credit based on
the original charge for the Services.
(b) Where Seller performs engineering or installation Services as part of a
combined engineering, furnishing, and installation order, the six (6) month
period referenced above shall commence on completion of the installation
Service.
(c) THE FOREGOING SERVICES WARRANTIES 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. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO MARK CORRECTIONS OR GIVE A
CREDIT OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
(d) With respect to turnkey services, consultation services, and other services
not identified in (a) above, the applicable warranty provisions will be
negotiated on a case by case basis.
ARTICLE V
TURNKEY SERVICES
5.1 STATEMENT OF WORK:
(a) Subject to the terms and conditions of this Agreement, Seller shall provide
the turnkey services (the "Turnkey Services") indicated on "Statement(s)
of Work" (a draft of which shall be attached hereto as Attachments D through
M) submitted pursuant to this Agreement. Additional Statements of Work
under this Agreement may be entered into by the parties, and, if so, each
will constitute a separate contract ("Turnkey Services Agreement") subject
to the terms and conditions of this Agreement. All deliverables and their
due dates shall be set forth, along with all fees, costs and related
expenses, on the Statement of Work. Statements of Work shall be in writing,
properly executed by the parties. To the extent that any terms and
conditions in any Statements of Work conflict with this Agreement, this
Agreement shall control. Any pre-printed language on any order form will
have no force or effect.
(b) Seller shall use diligent efforts to accomplish delivery of Turnkey Services
and Products by indicated delivery dates. The delivery dates shall be as
stated in the Statement of Work or specific orders. Changes to any
deliverables or delivery dates shall be in accordance with the change
management process identified in a Statement of Work and this Agreement.
LUCENT TECHNOLOGIES PROPRIETARY
27
<PAGE>
(c) Customer agrees to pay applicable Seller distribution charges, installation
charges, and all sales, use, transfer or other federal, state or local taxes
and all duties assessed on the Turnkey Services or Products, excluding
income taxes levied against Seller.
(d) Project (Construction) Managers for each party shall be identified in the
Statement of Work or other writing between the parties. This person shall
be the duly authorized representative of each party for the purposes of
project management and communications.
5.2 PRICING/PAYMENT TERMS:
Prices for Turnkey Services are set forth in each Statement of Work. Such
prices shall be subject to revision in the event of: (1) Customer changes,
revisions or modifications or special requirements of Customer not
communicated to Seller prior to this Agreement, (2) Customer changes in
schedule dates, (3) failure of Customer to provide any item required by a
Statement of Work as items to be furnished by the Customer, or (4) reasons
of Force Majeure as defined in this Agreement.
The charges payable for Turnkey Services will be set forth in the Statement
of Work (or other order document accepted by the Parties prior to initiation
of Turnkey Services) subject to acceptance as described therein. Payment of
all charges is overdue if not paid within * days after Customer's receipt of
Seller's invoice. Seller reserves the right to charge late fees on overdue
amounts, not to exceed * * * * * per month, if it does not receive payment
within * days. Customer shall notify Seller of any disputed invoices within
* * days from the date of the invoice. Failure of Customer to pay the
undisputed charges when due will be sufficient cause for Seller to suspend
the Turnkey Services and Products under this Agreement. Upon suspension by
Seller, Customer shall be liable for any reasonable costs incurred by Seller
as a result of suspension of the work.
Services will be billed monthly as performed and accepted in accordance with
this Agreement, or as soon thereafter as practical. Such billing will be
based on the proportion of the price represented by the Turnkey Services
performed.
5.3 ITEMS PROVIDED BY CUSTOMER:
Customer will be responsible for furnishing the items and services, specified in
the Statement of Work (as required by the conditions of the particular on-site
Turnkey Service) at no charge to Seller and these items will not be included in
Seller's price for the Service. Seller's representative shall have the right to
inspect the site prior to the Order Completion Date. Should Customer fail to
furnish any of such items or services for which it is responsible after Seller
provides Customer notice, Customer agrees that Seller shall not be held liable
for nor penalized in any way for delays caused thereby. Additionally, Seller may
furnish such items and charge Customer for them in addition to the prices
otherwise charged by Seller for the Service or costs incurred as a result of
such delay if Customer fails to furnish such items within seven (7) calendar
days of Seller's notice.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
5.4 SITE VARIATIONS/DISCREPANCIES:
In the event that any sites where such Turnkey Services are to be performed do
not substantially conform to the standards agreed to by the parties or
represented by Seller prior to acceptance of the order, then the
28
<PAGE>
prices quoted for such ordered Turnkey Services are subject to revision based on
increases in costs resulting therefrom.
5.5 WARRANTIES:
(a) Seller warrants to Customer only, that Services will be performed in a
workmanlike manner and in accordance with good usage and accepted practices
in the community in which Services are provided. With respect to Services,
Products or partial assembly of Products furnished by Seller but neither
manufactured by Seller nor purchased by Seller pursuant to its procurement
specifications ("Vendor Items"), Seller, to the extent permitted, does
hereby assign to Customer only the warranties given to Seller by its
vendor(s) of such Vendor Items.
(b) * * * * * * * * * * * *
* * * * * * * * * * * *
* * * *.
(c) Exclusions in addition to any terms identified in a Statement of Work,
problems attributable to alterations or attachments; negligence, abuse or
misuse, including failure to use any goods or materials in accordance with
manufacturer's specifications; improper use of suppliers; or fire, water,
acts of God or other catastrophic events; are not covered by warranty or
maintenance service. In addition Seller makes no warranty with respect to
Products which have had their serial numbers or month and year of
manufacture removed or altered. EXCEPT AS STATED HEREIN, SELLER MAKES NO
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR
OTHERWISE, WITH RESPECT TO ANY SERVICES, OR PRODUCTS SUPPLIED UNDER THIS
AGREEMENT. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. SELLER'S SOLE OBLIGATIONS AND CUSTOMER'S
SOLE REMEDIES ARE LIMITED TO THE REPERFORMANCE OF THE SERVICES OR A REFUND
FOR THE PRODUCTS OR SERVICES. Customer agrees that Seller will not have
any responsibility or liability for hardware or other items or services
provided by persons other than Seller or its subcontractors.
5.6 INSURANCE
Both parties shall maintain during the term of this Agreement the following
insurance coverage as well as all other insurance required by law in the
jurisdictions where the work is performed: (1) Workers' Compensation and
related insurance as required by law; (2) employer's liability insurance
with a limit of at least * * * dollars for each occurrence; (3)
comprehensive general liability insurance with a limit of at * * *
* dollars per occurrence; and (4) comprehensive motor vehicle liability
insurance with limit of at * * * dollars for bodily injury,
including death, to any one person, * * * * * dollars for
each occurrence of property damage, and * * * * dollars for
any one occurrence. Each party shall furnish prior to the start of work, if
requested by the other, certificates or adequate proof of the insurance
required by this clause. Each party shall notify the other in writing at
least thirty (30) days prior to cancellation of, or any material change in
the policy. Notwithstanding the above, Seller shall have the option where
permitted by law to self-retain any or all of the forgoing risks.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
LUCENT TECHNOLOGIES PROPRIETARY
29
<PAGE>
5.7 ACCEPTANCE OF SERVICES
At reasonable times during the course of Seller's performance of Services,
Customer, at its request may, or at Seller's request shall, inspect
completed portions of such Services. Customer may elect to accept such
completed portion. Upon completion of the Services, Seller will submit to
Customer a Notice of Completion pursuant to section "1.23 - Notices" of this
Agreement. Customer shall promptly make its final acceptance of substantial
conformance to mutually agreed specifications and do everything necessary to
expedite acceptance. Seller will promptly correct any defects for which it
is responsible. Services will be considered to be accepted unless Seller
receives notification to the contrary within thirty (30) days after
submitting the notice of completion.
5.8 WORK DONE BY OTHERS
Work done at the site by Customer or its other vendors or contractors shall
not interfere with Seller's performance of the Services. If Customer or its
other vendors or contractors fail to timely complete the site readiness or
if Customer's or its other vendor's or contractor's work interferes with
Seller's performance, the scheduled completion date shall be extended as
necessary to compensate for such delay or interference.
ARTICLE VI
ENTIRE AGREEMENT AND EXECUTION
6.1 ENTIRE AGREEMENT:
The terms and conditions contained in this Agreement, any subordinate
agreements, and 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 conditions
shall not be modified or amended except by a writing signed by authorized
representatives of both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date(s) indicated.
GENERAL WIRELESS INC. LUCENT TECHNOLOGIES INC.
By: /s/ Roger D. Linquist By: Bill Plunkett
------------------------- ------------------------------------
Name: Roger D. Linquist Name: /s/ Bill Plunkett
---------------------- ----------------------------------
Title: President & CEO Title: VP Sales
--------------------- ---------------------------------
Date: August 30, 1996 Date: August 27, 1996
---------------------- --------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
30
<PAGE>
Attachment A
DESCRIPTION AND QUANTITIES OF INITIAL SYSTEM
The following software features will be provided to GWI at the prices described
in Attachment B. These features will be available upon system turnover.
* * * * * *
* * * * * *
* * * * * *
[Chart spanning 3 1/2 pages omitted]
* * * * * *
* * * * * *
* * * * * *
[* INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 7 LUCENT TECHNOLOGIES PROPRIETARY A-2
<PAGE>
Description and Quantities of Initial System Attachment A
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Attachment B
EQUIPMENT PRICING
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Pricing for Software Features
- -----------------------------
Customer agrees to pay Seller the following prices for the software features
listed in Attachment A and available through * * *.
* * *
* * * * * * * * * * * *
* * *.
Version 8 LUCENT TECHNOLOGIES PROPRIETARY B-1
<PAGE>
Attachment B
EQUIPMENT PRICING
Incentives
- -----------
All incentives are hardware volume credits and will be applied in the year of
delivery against extended customer prices for Products and Software included in
this attachment (reference page B-1). All prices are based on use of standard
equipment configurations.
1. For the years * * * *:
* * *
2. For the years * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * *.
. * * * * * * * * * * * *
. * * * * * * * * * * * *
* * *
. * * * * * * * * * * * *
3. For the years * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * *.
* * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY B-2
<PAGE>
Attachment B
EQUIPMENT PRICING
4. * * * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * *.
5. Seller agrees to apply the same discounts included in the extended customer
prices referenced in this attachment (see page B-1) and the same incentive
structure applicable to the PCS Minicell as described in items 1, 2 and 3 of
this Attachment, to the Lucent Technologies PCS Microcell, when it becomes
generally available, provided that the overall Product dollar volume is achieved
with: PCS Minicells, 5ESS/Access Manager complexes, and related components, as
specified in this attachment (reference page B-1), exclusive of any PCS
Microcell and PCS Microcell- related component purchases.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY B-3
<PAGE>
Attachment B
EQUIPMENT PRICING
Liquidated Damages
- ------------------
In the event Seller fails to deliver any PCS Minicell within * * days of the
time frame specified in Attachment M, Seller shall pay the Customer liquidated
damages for such delayed delivery of any PCS Minicells. This clause does not
entitle the Customer to the award of liquidated damages for PCS Minicells which
are delivered in the time frame specified in Attachment M.. The PCS Minicell
quantities to be delivered will be determined based upon final RF engineering
design.
Any liquidated damages under this section will be calculated based upon the
following schedule:
* * *
In no event will the sum total of all penalties incurred under this clause
exceed
* * *.
Such damages are to be paid in equipment credits, for the purchase of PCS
Minicells, unless Customer terminates this Agreement under section 1.20 -
Cancellation, in which case such liquidated damages shall be paid as U.S.
dollars.
Seller shall not be liable or responsible for liquidated damages for any delay
caused by (1) Customer changes, revisions, or modifications, or special
requirements of Customer not communicated to Seller prior to contract, (2)
Customer changes in scheduled dates, (3) other reasons attributable to Customer,
(4) reasons of force majeure as defined in this Agreement, or (5) delays due to
site acquisition, spectrum clearing, or any other reason of the variety set
forth in Attachment G.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY B-4
<PAGE>
GWI TOTAL CONTRACT PRICING EQUIPMENT PRICING
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Attachment C
ACCEPTANCE
Guidelines for System Acceptance and Inspection
Lucent Technologies Select Code 401-703-203
May 1996, Issue 1 Edition
The "Guidelines for System Acceptance and Inspection" is incorporated into this
agreement by this reference.
If this document is modified; the modified document will replace the referenced
document as the governing Acceptance Process for this Agreement and will be
distributed to Customer at that time.
LUCENT TECHNOLOGIES PROPRIETARY
<PAGE>
Attachment D
CUSTOMER AND SELLER SCOPE OF WORK
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
RESPONSIBILITIES MATRIX FOR SYSTEM ENGINEERING, IMPLEMENTATION, AND OPTIMIZATION
- --------------------------------------------------------------------------------
SERVICES
--------
For purposes of uniformity and brevity, references to the Agreement or to an
Attachment shall refer to that Purchase and Sale Agreement to which this
document applies. All definitions set forth in the Agreement shall apply hereto
unless otherwise expressly defined herein. Except as may otherwise be provided
in the Agreement, each of the Services identified as Seller's responsibilities
in this Attachment are offered on a separate billable basis.
1. RESPONSIBILITIES MATRIX OVERVIEW
This document 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, commissioning, and acceptance testing of
the products and services supplied under this Agreement. The parties respective
responsibilities under any item shall be discharged in accordance with the
particulars as may be further defined elsewhere in this Agreement.
All work shall be performed according to mutually agreed standards and
practices where applicable. Installation and commissioning of the products and
services shall be performed in accordance with the Seller's installation and
commissioning instructions.
Version 8 LUCENT TECHNOLOGIES PROPRIETARY D-1
<PAGE>
Attachment D
CUSTOMER AND SELLER SCOPE OF WORK
1.1 SELLER RESPONSIBILITIES - GENERAL
This section is provided for the convenience of the parties and shall not be
understood to create any new obligations upon Seller. Seller shall perform, as
set forth below services for Customer PCS CDMA System.
Seller's responsibilities 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, associated hardware, 5ESS/Access Manager and base
station equipment, and associated hardware, and power plant).
. Progress reports
. Development of system Acceptance and inspection procedures, provision of test
equipment, and performance of such tests.
. Site search and evaluation;
. Site acquisition and spectrum clearing;
. Site preparation (all civil works activities, permits, ordering of leased
lines and AC power).
1.2 CUSTOMER RESPONSIBILITIES - GENERAL
This section is provided for the convenience of the parties and shall not be
understood to create any new obligations upon Customer. Customer's 's
responsibilities shall include, but shall not be limited to:
. Supplying Seller with all pertinent coverage and capacity requirements;
The responsibilities in this Attachment are grouped into two categories: Base
Transceiver Stations (BTS) and Switching Systems. Both of these categories are
further divided into Services and Materials.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY D-2
<PAGE>
Attachment D
CUSTOMER AND SELLER SCOPE OF WORK
2. BASE TRANSCEIVER STATION (BTS) RESPONSIBILITIES
The following sections outline the responsibilities for services and materials
for the BTS products. Radio Network Design is separated into two series of
activities: Preliminary Radio Network Design and Implementation Radio Network
Design.
2.1 BTS SERVICES
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
[chart spanning pages D-3 to D-7 omitted]
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
2.2 MATERIALS - BTS
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
[chart spanning pages D-7 to D-9 omitted]
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY D-3
<PAGE>
Attachment D
CUSTOMER AND SELLER SCOPE OF WORK
3. SWITCHING RESPONSIBILITIES
The following sections outline the responsibilities for services and materials
for the Switching Systems.
3.1 SERVICES - SWITCHING SYSTEMS
This section is separated into two sets of activities: Switching Network Element
Design and Implementation Switching Network Element Design.
The Switching Network Element Design shall include the Customer's 's switching
requirements and the Seller's initial network design.
The Implementation Switching Network Element Design shall include all
subsequent, warranted Customer modifications to the Seller's Switching Network
Element Design.
* * * * * * * * * * * *
* * * * * * * * * * * *
[chart spanning pages D-10 to D-16 omitted]
* * * * * * * * * * * *
* * * * * * * * * * * *
3.2 MATERIALS - SWITCHING
* * * * * * * * * * * *
* * * * * * * * * * * *
[chart spanning pages D-16 to D-17 omitted]
* * * * * * * * * * * *
* * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version 8 LUCENT TECHNOLOGIES PROPRIETARY D-4
<PAGE>
Attachment E
RF ENGINEERING
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
STATEMENT OF WORK
- -----------------
1 INTRODUCTION
This document identifies and describes the RF Engineering and drive test tasks
to be performed in support of GWI's PCS network deployment. Seller and
Customer will cooperatively develop a mutually agreeable RF Design and
Acceptance Process and RF Performance Criteria to accompany this scope of work
document.
In this scope of work, Seller has identified a number of RF design-related
activities which may be required, but due to high geographic cost variability,
are charged on an as incurred basis plus administrative fee in addition to the
price per cell RF engineering fee. These "pass-thru" work items include the
following:
. temporary cranes and riggers;
. helicopters;
. FAA maps and opinion letters prepared by third parties;
. drive test channel FCC frequency clearing.
2 RF DESIGN SERVICES
2.1 PREDESIGN MEETINGS AND MARKET SETUP
This design phase will involve agreeing on design goals such as:* *
* * * * * * * * * * *
* * * * * * * * * * *
* * * * * * * * * * *
2.2 PRELIMINARY DESIGN
This phase involves * * * * * * * *
* * * * * * * * * * *
* * * * * * * * * * *
* * * *. This phase is considered complete upon *
* * * * * * * * * * *
* * * * * * * * * * *
* * *.
Version 5 LUCENT TECHNOLOGIES PROPRIETARY E-1
<PAGE>
Attachment E
RF ENGINEERING
2.3 IMPLEMENTATION SUPPORT AND FINAL DESIGN.
This phase involves * * * * * * * *
* * * * * *. Based on * * * *
* * *, the site will either be incorporated into the design or a
redesign will be performed. * * * * * * *
* * * * * * * * * * *
* * * * * * * * *. The final step is
* * * * * * * * * * *
* * * * * * * * * * *
* * * * *.
2.4 SYSTEM OPTIMIZATION
Upon turn-up of the new site and the correct setting of the operational
parameters, RF Engineers will make a final visit to selected sites to verify
correct installation of antenna radiation center, orientation cable type and
length, and other site related items. Verification drive testing will be
performed in clusters of to verify coverage, power and hand-off parameters, and
make corrective tuning adjustments to optimize the system.
PRICING
- -------
The pricing provided below is for the RF Engineering work described in the scope
of work exhibit which Seller is willing to perform on a "fixed price per cell"
basis.
FIXED PRICE PER CELL: * * *
Price includes * * * * * * * * *
* * * * * * * * * * *
* * * * * * * * *.
Excluded from the above price are * * * * * *
* * * * * * *. Also excluded as identified in
the scope of work exhibit are:* * * * * * *
* * * * * * * * * * *
* * * * * *.
RF Engineering personnel provided by Seller may not be employed by GWI for a
period of 1 year after termination of our contract.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Version LUCENT TECHNOLOGIES PROPRIETARY E-2
<PAGE>
Network Optimization Attachment F
NETWORK OPTIMIZATION
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
STATEMENT OF WORK
- -----------------
The Network Planning & Design Department (NP&D) will optimize the backhaul
network for GWI's three service areas: the Miami area, the Atlanta area, the
Northern California Area.
For each service area, the objective will be * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * *.
SWITCHING AND HUB SITES
Choosing the appropriate number of switch and concentrator sites is a major task
in the design effort. For each of your Serving Areas, NP&D will determine
* * * * * * * * * * * *
* * * * * * * *.
TRANSMISSION FACILITIES
Network cost is also influenced by * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * *. Transmission facility options will include
* * * * * * * * * * * *
* * * * * * *
RESPONSIBILITIES
In general, GWI and the Lucent Technologies RF Engineering Department will
be responsible for * * * * * * * * *
* * * * * * * * * * * *
* * * * * * *. The details are discussed in this
section.
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 1
<PAGE>
Network Optimization Attachment F
INPUTS TO THE NETWORK DESIGN
The first step of the network planning process is * * * * *
* * * * *. In general, the information required includes
* * * * * * * * * * * * *
The data requirements are as
follows.
. * * * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
. * * * * * * * * * * * * *
* * * * * * * * * * * *
In addition,we request that a GWI engineer be assigned to answer questions about
the * * * * * * * to facilitate the study process.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 2
<PAGE>
Network Optimization Attachment F
OUTPUTS PRODUCED
The least cost network design using GWI's inputs and constraints will be
produced. The design includes:
. * * * * * * * * * * * *
* * * * * * * * * * *
. * * * * * * * * * * *
. * * * * * * * * *
. * * * * * * * * * *
. * * * * * * *
. * * * * * * *
. * * * * * * * * * * * *
*
. * * * *.
. * * * * * *.
. * * * *.
. * * *.
GWI will be asked to review the design during the study period to ensure that
the final design is in line with expectations.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains propriety information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 3
<PAGE>
Network Optimization Attachment F
GENERAL NETWORK DESIGN SERVICE TIMELINES
The length of time required to produce the optimal design depends on several
major factors: 1) * * * * * * *, 2) * * *
* * * *and 3)* * * * *, and 4) *
* * * * * * * * * *.
For a typical Service Area network design with* *and * *, the
wireline portion of the design is * *. A written report of the results can
take up to * * * *.The following schedule, which is based upon a
* * time-frame, estimates the time requirements for each step.
* * * [chart omitted] * * *
This time-frame would be applied for each of the three areas, with a total time
of up to * *. Analysis to be conducted concurrently in each of the three
markets. This includes requisite number of runs to optimize each service area.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 4
<PAGE>
Network Optimization Attachment F
TERMS AND CONDITIONS
The following information gives a summary of the price Lucent Technologies will
provide to GWI.
PRICE
Lucent Technologies will assign * * * * based on the
deliverables previously stated. This * * * * * *
* * * * * * * * * *. Lucent
Technologies will provide GWI with * * * * per GWI's
request.
- -----------------------------------------------------------------
* * * *....................................$* * *
Time Period..........................................* * *
- -----------------------------------------------------------------
TOTAL
PRICE................................................$ * *
- -------------------------------------------------------------
This price applies to * * * * * *
* * * * *.
ADDITIONAL INFORMATION:
.* * * *
.* * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 5
<PAGE>
Site Acquisition Attachment G
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
SITE ACQUISITION
STATEMENT OF WORK
-----------------
TASK 1. SITE IDENTIFICATION
LOCATE AND IDENTIFY A SITE WHICH MEETS CUSTOMER CRITERIA FOR RADIO AND
ENGINEERING ANALYSIS. PROVIDED DELIVERABLES WILL INCLUDE THE FOLLOWING:
. * *
. * *
. * * * * * *
. * * * * * *
. * * *
. * * * * * * * *
. * * *
* * * * * * * * * *
* * whenever possible. Obtain permission for * *
* * * * * * * also attend
* * as needed * * * * * * *. *
* * * * Prepare * * * as needed.
TASK 2. LEASE NEGOTIATIONS
OBTAIN A COMPLETELY EXECUTED LEASE OR OPTION AGREEMENT. PROVIDED DELIVERABLES
INCLUDE:
. * * * * * * * *
* *
. * * * * * * * *
. * * * * * *
. * * * * * * * *
. * *
. * * * * * * * *
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 1
<PAGE>
TASK 3. PERMITTING/ZONING
OBTAIN ALL GOVERNMENT LAND USE, ZONING AND BUILDING APPROVALS REQUIRED TO
CONSTRUCT AND OPERATE A WIRELESS COMMUNICATIONS CELL SITE. THIS includes the
following:
. * * * * * * * * * * *
* * * * * *
. * * * * * * * * * * *
* * *
. * * * * * * * * * * *
*
. * * * * * * * * * * *
*
. * * * * * * * * * * *
* * * * * * * * * * *
* * * * * * *
. * * * *
For all tasks, the Lucent representative will recommend such additional action
or services as it deems necessary or appropriate for your consideration to
ensure successful completion of site acquisition and development. At that
point, the Lucent representative will also identify any required pricing
adjustments.
During the course of the Site Acquisition process there may be additional tasks
required to ensure the successful completion of Site Acquisition and
development. A potential list of tasks to be considered is provided below.
* * * * * * * * * * * *
* * * * * * * * * * *
*
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 2
<PAGE>
Site Acquisition Attachment G
OPTIONAL SERVICES CONSIDERATIONS
- --------------------------------
* * * * * * * * * * * *
* * * *
* * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* *
EXCEPTION
Completion intervals for Site Acquisition will vary with the degree of
difficulty encountered in the specific search areas. Lucent will explore options
for * * * * * * * * * * *
* * * * * * * * * * * *
Implementation delays beyond the control of Lucent, associated with the * * * *
* * * * will not result in penalties or liquidated damages to Lucent
Technologies. Lucent will act in good faith to secure the most favorable * * *
* * * * *
GWI RESERVES THE RIGHT FOR A PERIOD OF * * WORKING DAYS FOLLOWING CONTRACT
EXECUTION TO PERFORM TASK 1 (SITE IDENTIFICATION) AS DESCRIBED IN THIS
STATEMENT OF WORK. ADDITIONALLY, GWI MAY PROCURE FROM LUCENT TECHNOLOGIES
SUBJECT MATTER EXPERTISE AT THE HOURLY RATE REFERENCED IN THE ATTACHED PRICING
SPREADSHEET.
IF GWI CANNOT COMPLETE ALL OF TASK 1, TASK 2 OR TASK 3 FOR A SITE AND HANDS OFF
TO LUCENT, LUCENT WILL BE PAID THE * * * AS INDICATED IN THE ATTACHED PRICING
SPREADSHEET.
WHEN GWI IS ACTING AS SUBCONTRACTOR TO LUCENT FOR THE SITE ACQUISITION PROCESS,
LUCENT AGREES TO PROVIDE GWI WITH THE APPROPRIATE INTELLECTUAL INFORMATION TO
FACILITATE THAT PROCESS.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 3
<PAGE>
Site Acquisition Attachment G
PRICING: REFER TO THE ATTACHED SPREADSHEET FOR SITE ACQUISITION MODEL AND
PHASE DEFINITION AND PRICING.
THE FIXED PRICING BELOW AND IN THE ATTACHED SPREADSHEET IS BASED UPON LUCENT
TECHNOLOGIES PERFORMING ALL SITE ACQUISITION TASKS FOR A MINIMUM OF * *
OF CELL SITES IN EACH MARKET. THE FIXED PRICE WILL BE ADJUSTED SHOULD THIS
PERCENTAGE FALL BELOW * *.
Total Estimated Price for Site Acquisition (based on estimated number of sites
as indicated:
Georgia Service Area ( * sites) $ * * *
-----------
Florida Service Area ( * sites) $ * * *
-----------
Califiornia Service Area ( * sites) $ * * *
-----------
$ * * *
-----------
TOTAL - SITE ACQUISITION $ * * *
-----------
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- --------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 4
<PAGE>
General Wireless, Inc. Attachment G
Site Acquisition Models
California, Florida, Georgia
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Construction Attachment H
CONSTRUCTION MANAGEMENT
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
STATEMENT OF WORK
- -----------------
Construction Management is divided into the following three categories:
. Architectural and Engineering
. Construction Management
. Site Construction
ARCHITECTURAL AND ENGINEERING
- -----------------------------
Following are the tasks associated with the Architectural and Engineering Scope
of Work:
. Establish standard site configuration with customer
. Investigate applicable building codes and local regulations
. Obtain property survey, geotechnical report and environmental study (if
required)
. Obtain as-built drawings of existing facilities to be used in the
preparation of the construction documents
. Site survey
. Prepare construction document (drawings and specifications)
. Coordination with field engineers any construction variances
. Prepare as-built documents.
STANDARD SITE CONFIGURATIONS
Description: The engineer will meet with the customer representative to
determine the preferred layout of the site components.( radio equipment
foundation, antenna structure, electrical and telephone facilities, turn-around
space and fencing) Actual site conditions may cause the layout to change but all
efforts will be put forth to maintain the standard configuration. With regards
to any built-out space requiring electrical and HVAC we will standardize on
equipment components for maintenance purposes.
BUILDING CODES AND LOCAL REGULATIONS
- ------------------------------------
Description: Local building codes and regulations will be determined on a site
by site case. All drawings and specifications will be prepared to conform to
these codes and regulations.
- ------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 1
<PAGE>
Construction Attachment H
PROPERTY SURVEY, GEOTECHNICAL REPORT AND ENVIRONMENTAL STUDY
Description: The engineer will obtain the property survey, geotechnical report
and environmental study prepared by the consulting firms contracted to perform
the various task. The property survey will be used in developing the site
designs (access roads/drives, drainage plans, and general site configurations.
The geotechnical report will utilized to design the access roads and foundations
for the equipment slab/shelter and the antenna structure.
All recommendations/actions addressed in the environmental study will be
incorporated into the constructions documents.
AS-BUILT DRAWINGS OF EXISTING FACILITIES
Description: The engineer will investigate the availability of as-built drawings
of existing facilities where the equipment may be housed. The unavailability
of these drawings may require extensive field investigation and can greatly
effect the production interval of the construction documents .
SITE SURVEY
Description: A site survey will be conducted at each site to determine the
distinct characteristic of that site.
CONSTRUCTION DOCUMENTS
Description: The construction documents will be prepared utilizing the
information obtained from the site survey, the property survey, geotechnical
report and the environmental study in conjunction with the applicable codes and
regulations. The drawings will be prepared using the latest version of AUTOCAD
and will be furnished to the customer both in a paper and disk formats.
CONSTRUCTION VARIANCES
Description: The engineer will resolve and coordinate with the field engineer
any unforeseen variances which may arise during the construction process.
AS-BUILT DOCUMENTS
Description: The engineer will compile all customer changes and field variances
reported by the field engineer or contractor and prepare a final set of
construction drawings and specifications. Copies of the as-built will be
furnished to the customer for their files.
- -------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 2
<PAGE>
Construction Attachment H
CONSTRUCTION MANAGEMENT
- -----------------------
Following are the tasks associated with the Construction Management Scope of
Work:
. OBTAINING BUILDING PERMITS
. SCHEDULING DELIVERIES AND WORK CREWS
. MONITORING SITE CONSTRUCTION ACTIVITIES
. COORDINATING UTILITIES
. REPORTING OF PROGRESS
. INSPECTING THE SITE(S) AND COMPLETING THE CLOSE-OUT CHECKLIST
. ARCHITECTURAL & ENGINEERING (REF. INDIVIDUAL DESCRIPTIONS)
OBTAINING BUILDING PERMITS
Description: In many jurisdictions, when permits expire, fines are levied and
delays follow while the proper documentation and approvals are obtained. To
keep the project moving according to the plan, required inspections must be
appropriately scheduled and planned for. If not managed properly, permits and
inspections can jeopardize a project's success.
SCHEDULING DELIVERIES AND WORK CREWS
Description: Frequently, staging areas are not large enough to hold all
materials and supplies in an orderly fashion. Scheduling then necessitates the
balancing of costs with the available space and resources. An ideal schedule is
one for which materials arrive on the site precisely when they are needed. In
this scenario, there are no premiums for warehousing, shipping, crane work, or
site construction crews standing by waiting for materials. With Lucent's
extensive staging capabilities and rapid access to production sources, the
Construction Management team can optimally plan the construction logistics.
MONITORING SITE CONSTRUCTION ACTIVITIES
Description: Regardless of whether or not a building is required, construction
activities can be very complex. Monitoring the tasks requires knowledge of the
proper sequence of events and the critical intervals between each phase.
Monitoring the construction activities starts with site preparation and civil
work which ensures that access roads and storm water drainage facilities are
constructed according to the site plan.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 3
<PAGE>
Construction Attachment H
The next step is to construct the foundation for towers and the shelter which
will house the equipment. After erecting the towers, mounting the antennae, and
providing for appropriate transmission lines, the system will be functionally
tested. Lucent's Construction Management team applies its understanding of
network design to the initial stages of deployment.
COORDINATING UTILITIES
Description: Coordinating the required utility hook-ups among multiple entities
is critical to making sure that their efforts do not delay the work in process.
Depending on the scope of the project, LUCENT will work with utilities to meet
project needs for electricity, water, natural gas, and sewer lines.
Additionally, LUCENT will coordinate the schedules, the implementation and the
testing of your land lines and the associated facilities.
REPORTING OF PROGRESS
Description: With every new site, many critical tasks associated with the system
turn-up need to be coordinated. A log of daily construction activities and
written progress reports will be provided by Lucent's construction managers.
Based upon these progress reports, the team will file the appropriate documents
to the FAA and to the FCC. The progress reports can help to assure you that
critical tasks are proceeding as scheduled. Lucent's construction manager will
also deliver documentation such as construction photos as required for your
records.
INSPECTING THE SITE(S) AND COMPLETING THE CHECKLIST
Description: At each stage of project completion, site inspections are conducted
jointly by the LUCENT construction manager and the associated contractor. A
project guide or a construction completion checklist, which is developed
jointly, provides the means to fully document site inspections. The inspections
are further assurance that the project is delivered and constructed according to
your quality specifications.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 4
<PAGE>
Construction Attachment H
SITE CONSTRUCTION
- -----------------
Following are descriptions of items included in the various type of sites
associated with the Site Construction Scope of Work:
Rawland Sites
- -------------
100 ft gravel access road
30' x 40' site compound
10' x 20' equipment slab
140 ft of 6 ft. high chain link fence
Electric and telco facilities
Grounding per our practices for PCS sites.
ACCESS ROAD
Description: The access road will be constructed 12 ft. wide by 100 ft. long.
The top soil will be removed from the road bed and spread across the site. A 4
in. based will be layed and covered with 4 in. of 3/4 in. minus top layer.
SITE COMPOUND
Description: The site compound will be constructed 30 ft. wide by 40 ft. long.
The top soil will be removed from the site and spread across the site. A 4 in.
based will be layed and covered with 4 in. of 3/4 in. minus top layer.
EQUIPMENT SLAB
Description: The equipment slab will be constructed 8 in. thick by 10 ft. wide
by 20 ft. long. Reinforcing steel will be added as required to maintain the slab
integrity.
CHAIN LINK FENCE
Description: A chain link fence will be installed around the perimeter of the
site compound. The fence will be 6 ft. tall and 140 ft long. A 12 ft. gate
will be installed to allow access to the compound.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 5
<PAGE>
Construction Attachment H
ELECTRIC AND TELCO FACILITIES
Description: A new pole will be set within the site compound to support the
electric and telco facilities. Conduit and wiring is included from the pole to
the equipment slab. The cost to bring both facilities to the new pole is not
included.
SITE GROUNDING
Description: A ring ground system will be installed per the PCS practices.
Roof Top Sites
- --------------
2' x 20' steel frame for the PCS equipment
Penthouse wall mounts for the PCS antennas
Transmission line supports from the antennas to the PCS equipment
Electric and telco facilities
Grounding per our practices for PCS sites
STEEL FRAME
Description: A structural steel frame will be installed on the roof of the
building to support the PCS equipment. It is assumed that the existing roof
structure is capable of supporting the new steel frame and equipment. Additional
structural reinforcing will be billed as an extra to the contract.
ANTENNA MOUNTS
Description: Antenna mounts will be mounted to the existing penthouse structure.
It is assumed that off-the-shelf mounts can be purchased and mounted to the
penthouse without requiring additional reinforcing of the walls.
TRANSMISSION LINES
Description: The transmission lines will be routed from the antennas to the PCS
equipment located on the roof of the building. The lines will be supported
across the roof on treated wood sleeper or equivalent system. It is assumed the
sleepers will not be permanently attached to the roofing system.
ELECTRIC AND TELCO FACILITIES
Description: It is assumed that adequate electrical service is available in the
penthouse. Conduit and wiring is included from the penthouse to the equipment
frame. The cost to bring both facilities to the roof of the building is not
included.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 6
<PAGE>
Construction Attachment H
SITE GROUNDING
- --------------
Description: A ring ground system will be installed per the PCS practices. It is
assumed that an adequate ground source is available in the penthouse.
SWITCH LOCATIONS
Architectural & Engineering
- ---------------------------
This service provides the detailed engineering required to prepare the interior
space for the installation of the switching equipment. It is assumed that space
will be leased within an existing building for this purpose and that there will
be a need to redesign the floor plan (walls, floors and ceiling) and install a
standalone HVAC and power systems.
For budgetary pricing the cost for this service * * * * * * * * *.
Construction
- ------------
This service provides for the implementation of the construction drawings as
provided in the A&E service. Typically, the area required for the switch and
support systems averages approximately * * square feet. The cost for
renovation * * * * *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
ADDITIONAL ASSUMPTIONS
General Wireless Inc. will purchase all new towers including associated
engineering services, materials, foundations, any necessary transportation and
tower assembly and erection. The antennas and transmission line material to be
purchased by GWI includes but is not limited to those items listed on the
spreadsheets attached to this statement of work under "Antenna/Line."
Access to sites by two wheel drive vehicles.
For the purpose of this proposal, the road and foundations excavations are
assumed to conform to normal soils as described in Section 7 of EIA/TIA-222-E
dated March 1991.
Normal work day is 7:00 am to 5:00 pm, Monday thru Saturday, and no overtime is
included.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 7
<PAGE>
Construction Attachment H
Prior to the start of the construction document preparation, a joint site visit
by the customer and Lucent representative will be conducted to determine the
variance between the actual site conditions and the models used in preparing
this proposal. A cost variance will be prepared and submitted to the customer
for approval before proceeding with the engineering process.
Road and site clearing and disposal of material of heavily wooded sites is not
included.
Weather Slow-downs or shut-downs are not included.
Engineering and construction of erosion control are not included.
Investigation of existing building/structures (where drawings are not available)
to complete the engineering process is not included.
PRICING: REFER TO THE ATTACHED SPREADSHEETS FOR CONSTRUCTION PRICING MODELS AND
ASSOCIATED PRICING.
THE PRICING FOR THIS SERVICE IS PROVIDED AS A BASELINE. DEVIATIONS OF MORE THAN
* TO THE CHOSEN MODEL WILL REQUIRE GWI'S SIGNED AUTHORIZATION BEFORE WORK WILL
BEGIN.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
- ------------------------------------------------------------------------------
LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 8
<PAGE>
California Service Area Attachment H
Construction Services
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Florida Service Area Attachment _
Construction Services
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Georgia Service Area Attachment H
Construction Services
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
Microwave Relocation Attachment I
MICROWAVE RELOCATION
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
SCOPE OF WORK
- -------------
Following are the Tasks associated with Microwave Relocation:
. DESIGN REVIEW
. REPEATER DESIGN (AS NECESSARY)
. FREQUENCY COORDINATION
. FCC LICENSE APPLICATION - TECHNICAL CONTENT
. COORDINATE OUTDOOR CONSTRUCTION (ANTENNAS AND WAVEGUIDES)
. EQUIPMENT PROCUREMENT
. INSTALLATION
. FINAL DOCUMENTATION
. ACCEPTANCE
DESIGN REVIEW
Detailed relocation system design. Review microwave path design developed
during the incumbent negotiations and complete transmission calculations.
Complete design of system (radio, multiplex and network management) and identify
detailed equipment requirements. Microwave path surveys will be conducted as
necessary to confirm design microwave LOS requirements.
REPEATER DESIGN - OPTIONAL
If required to meet replacement path performance objectives, Lucent will
prepare repeater design and development, as necessary - For those Path(s) that
are technically incapable of being carried over a single Path at the new
frequency, repeater site design and development may be required. If so, system
engineering will be modified to incorporate active or passive repeater design as
dictated by performance requirements. Previously developed sites will be
utilized where possible. If there are no developed sites available which meet
operational criteria, the next option will be passive repeater site development.
If performance requirements cannot be met with passive repeater, then site
design and development for active repeater will be performed. Costs for design
and development of a fixed repeater station will be determined at the time the
need for a repeater has been identified and specific requirements are known.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 1
<PAGE>
Microwave Relocation Attachment I
FREQUENCY COORDINATION
Conduct frequency coordination for the purposes of establishing specific RF
Microwave Channel assignments in accordance with FCC regulations. Perform
Prior Coordination Notice Mailings to confirm interference objectives are met
with external microwave users.
FCC LICENSE APPLICATION
Complete technical content of FCC license application for submittal by incument
for new microwave path.
COORDINATE OUTDOOR CONSTRUCTION
Prepare outdoor antenna and waveguide construction scope of work for the
purposes of soliciting firm, fixed quotations from qualified contractors to
perform the installation and testing of the microwave antennas and waveguides.
Arrange for contractor(s) to perform outdoor construction, installation of
antennas, waveguides, tower / foundation modifications.
Oversee tower and foundation improvements where necessary and monitor
subcontractor performance and ensure that the subcontractor commitments to
timeliness and milestones are met.
EQUIPMENT PROCUREMENT - SITE RECORDS
Prepare detailed material lists and order microwave equipment, integrating
equipment schedules with the PCS Network Deployment schedule. Prepare site
records for each station identifying the equipment to be installed at each site.
Prepare applications engineering package consisting of material list
(specifications) and site records (drawings).
INSTALLATION
Perform radio equipment installation - Perform the installation as specified in
the applications engineering package. Arrange for engineering, maintenance and
operations training of Incumbent's technical personnel.
FINAL DOCUMENTATION
Review "as-built" documentation prepared by installers and contractor(s).
Verify completion of installation scope of work.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 2
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Microwave Relocation Attachment I
ACCEPTANCE
Obtain final Incumbent sign-off - Ensure Incumbent's satisfaction that the
contractual obligations by General Wireless, Inc., and its subcontractors (if
applicable) have been met.
Determination of old equipment removal or sale - Contact resellers to determine
if 2ghz equipment has resale value. If so, arrange resale of equipment to such
reseller. If not, arrange disposal, if required, by appropriate waste
management firm.
Verify that de-installation activities or removal (scrap or resell) of replaced
equipment has occurred.
Prepare documentation to support cost sharing invoices to other PCS licensees.
Notify General Wireless, Inc. of project completion and provide final billing
and report.
PRICING - MICROWAVE RELOCATION
Pricing is provided at a Budgetary level and is dependent upon such factors as
the number of paths identified for turnkey relocation, cost sharing, outcome of
incumbent negotiations, agreement on "like for like" replacements, specific path
and performance requirements, availability of microwave channel assignments in
the new microwave band.
Total Estimated Price for Microwave Relocation Based on the Standard Model:
Labor Material
Georgia Service Area $ * $ *
Florida Service Area $ * $ *
California Service Area $ * $ *
TOTAL - MICROWAVE
RELOCATION $ * $ *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 3
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Microwave Relocation Attachment I
OPTIONAL REPEATER PRICING
Refer to the Microwave backhaul facilities models provided with the point to
point microwave services for model repeater pricing.
ASSUMPTIONS - MICROWAVE RELOCATION
The following assumptions are applicable to the Microwave Relocation Services
provided by Lucent Technologies:
1. Pricing is budgetary and is based on models and a "like for like" definition
of equipment provided by the Federal Communications Commission and PCIA. Actual
costs will be determined by the specific path design and equipment required to
satisfy the contractual obligations set forth in the relocation agreement
resulting from the Spectrum Clearing process.
2. The microwave equipment model used for relocation estimating is as follows:
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * * *.
Specifically excluded from the model are the following:
* * * * * * * * * * * *
* * * * * * * * * * * *
* * * * * *.
3. Implementation delays, beyond the control of Lucent Technologies, associated
with the engineering, procurement and implementation of the replacement
microwave link(s) will not result in penalties or liquidated damages to
Lucent Technologies. Lucent will act in good faith to request the most
favorable procurement and manufacturing intervals on behalf of General
Wireless, Inc., but can not guarantee such intervals in advance.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 4
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Microwave Relocation Attachment I
4. Microwave implementation costs assume a standard 40 Hr work week for
equipment installation activities and a 48 Hr work week for the outdoor
construction activities. Actual work schedules will be based on the detailed
implementation schedule developed for the PCS deployment. Additional overtime
worked by Lucent personnel at the request of General Wireless to meet specific
completion dates will be billed as additional effort.
5. Services provided under this agreement will be performed in a manner
consistent with professional skill and care. Remedies for services not
performed, errors and omissions shall be limited to reworking the services
provided in error or omitted. This shall be the sole remedy offered under this
agreement.
6. Relocation costs are based on a standard installation, with reasonable access
to sites. * * * * * * * * * are excluded.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 5
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Spectrum Clearing Attachment J
SPECTRUM CLEARING
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
STATEMENT OF WORK
- -----------------
Following are the tasks associated with the Spectrum Clearing Scope of Work:
. IDENTIFY INCUMBENT (INTERFERING) PATHS
. ASSESSMENT OF INCUMBENT SYSTEM
. COST SHARING ANALYSIS
. NEGOTIATIONS
. RELOCATION PROGRAM MANAGEMENT
. TOWER ANALYSIS
IDENTIFY INCUMBENT PATH(S) SUBJECT TO INTERFERENCE
Lucent will identify potentially interfering links which may have to be cleared
for wireless service to be provided in the geographic area(s) ("Coverage Area")
and frequency block(s) specified General Wireless, Inc. This service will
address both co-channel and adjacent channel Path(s), where applicable. Lucent
will provide the path data for each incumbent in each given market. This data
will be summarized and will be delivered to General Wireless, Inc. as a report.
This report will contain such information as list of Co-channel and adjacent
channels path(s) for each incumbents in each market, shared links, potentially
problematic negotiations (i.e., public safety, etc.); relocation cost estimate
(per Path and per market) based upon current and proposed system information;
route maps for each market showing Co-channel and adjacent channel paths;
analysis of multi-path and multi-market issues; and opportunities for cost
sharing
Lucent will further identify incumbents with other potential assets such as
towers, poles, right of way, telecommunications capacity, etc., that may be
considered by General Wireless, Inc. in the negotiation phase with the
incumbents.
ASSESSMENT OF INCUMBENT SYSTEM
Lucent will review Incumbent link data, by Incumbent, by BTA and compare such
information against available FCC database information. System type and
architecture, number of hops involved, tower heights and typical system usage
will be noted for incorporation into initial cost estimate.
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LUCENT TECHNOLOGIES PROPRIETARY
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Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 1
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Spectrum Clearing Attachment J
Lucent will prioritize Incumbent Path(s) PRIOR TO BEGINNING NEGOTIATIONS AND
WILL ASSIST GENERAL WIRELESS, INC. IN ESTABLISHING NEGOTIATION PARAMETERS FOR
VARIOUS PATH(S). LUCENT WILL EVALUATE SEVERAL FACTORS SUCH AS GENERAL WIRELESS,
INC. DEPLOYMENT PLAN FOR EACH BTA, THE INCUMBENT'S BUSINESS AND THE SIZE OF ITS
NETWORK, LOCAL RESTRICTIONS, ETC., IN ORDER TO PRIORITIZE INCUMBENT PATH(S) FOR
RELOCATION.
Lucent will assist the General Wireless, Inc. in establishing negotiation
parameters per system and per market on path(s) to be relocated. Parameter
setting between General Wireless, Inc. and Lucent must be completed prior to
commencement of negotiation with incumbents. General Wireless's priorities and
willingness to provide various relocation alternatives to Incumbents shall be
addressed so that the Lucent can appropriately represent General Wireless in
negotiations. Lucent will also provide negotiation parameters for the systems
that may exist in multiple General Wireless markets (e.g., multi regional,
and/or national 2 GHz microwave networks owned by railroad companies) to
maximize effectiveness in the negotiation process and reduce costs.
Lucent will identify proper technical and negotiation contact within Incumbent
firm. Confirm database information, assess Incumbent willingness to negotiate
and other strategic information, discuss systematic information and preliminary
replacement system for interested path(s), and schedule site visit.
Lucent will send introductory mailing to Incumbent (notification/education)
which will provide letter to Incumbent as a briefing on the intentions and
preferences of General Wireless, Inc.
Lucent will conduct site visit/audit and will obtain tower/equipment capacity
and other particulars of system. A site audit will be performed for each
terminal or repeater site, as needed. System configuration and usage
information will also be confirmed.
Lucent will obtain tower and foundation drawings, if available.
Lucent will prepare initial estimate of relocation costs per market totaled as
necessary on a per-Incumbent and per-market basis. Lucent will also provide
estimated relocation costs for those paths that may exist in General Wireless's
multiple markets.
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LUCENT TECHNOLOGIES PROPRIETARY
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Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
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Spectrum Clearing Attachment J
Lucent will prepare technical package for detailed relocation design. Site
audit, photos, site drawings and sketches are prepared for the detailed
relocation design.
Lucent will update cost estimates taking into account information obtained from
site visit/audit. More accurate cost estimates are generated based on
information acquired in site visits and feasibility studies.
Lucent, as a result of conversations with Incumbents indicating difficult
negotiations, will determine potential means of expediting negotiation and
relocation process.
COST SHARING ANALYSIS
As part of the Spectrum Clearing process, Cost Sharing opportunities will in
analyzed and presented to General Wireless as these opportunities impact the
total cost for relocating 2 Ghz incumbents. These opportunities will arise as a
result of incumbent microwave paths operating at frequencies in both the "C"
block and other PCS frequency block(s). When these situations arise, Lucent
will represent General Wireless in the negotiation(s) with other PCS licensees
to establish shared relocation costs.
NEGOTIATIONS
In conjunction with negotiation for path(s) relocation with each incumbent,
Lucent will perform following tasks:
Schedule negotiation sessions - Contact is established with decision
maker as established in Assessment of Incumbent System. Continue Incumbent
education and attempt to establish further Incumbent negotiation strategies and
information.
Perform actual negotiations with Incumbent to effect relocation of
systems from market and block. This service element shall include negotiations
and consummation of cost sharing agreements when ever possible.
Channel loading analysis - Determine required channel loading (for
expansion, etc. ) and system requirements. In earlier site visit, the
Supplier's engineer would have reviewed current channel loading for comparable
replacement requirements.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 3
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Spectrum Clearing Attachment J
Equipment selection - Verify that proposed replacement system design
meets Incumbent requirements. If system does not meet requirements, continue
discussion on desired equipment in conjunction with negotiations.
Draft relocation plan (term sheet) per negotiations - Complete term
sheet, including equipment to be provided, time line and progress steps, testing
time frame, compensation value, system performance specifications and any other
applicable terms. Develop test, commissioning and cut-over plans and prepare
instructions for disposal of replaced equipment.
Review term sheet of relocation and reviewing agreement with the
General Wireless.
Finalize execution of relocation agreement - Provide term sheet or
offer letter to to the General Wireless' internal counsel for completion of
contact in conjunction with incumbent counsel.
TOWER ANALYSIS (WHEN REQUIRED)
Following is a list of tasks that the Lucent will perform in completing Tower
Analysis, when needed:
Program management for tower stress analysis and tower foundation
analysis - Contact with structural and civil engineering firms to perform
analyses, as required. Decision regarding requirement for analyses is based on
availability of drawings, condition of tower, size of proposed antenna(s), among
other factors. Process is then monitored to ensure conformance to desired time
line.
Provide analysis of tower reports and assessment of options to the
General Wireless - tower and/or foundation analysis is reviewed to determine
most feasible course of action regarding tower, including structural
strengthening, replacement, etc.
Provide installation feasibility analysis.
Update estimate of cost for relocation taking into account the tower
construction or modification required - Generate more accurate cost estimates
based upon information acquired in tower and foundation analyses.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 4
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Spectrum Clearing Attachment J
PRICING - SPECTRUM CLEARING
The pricing provided at a Budgetary level and is highly dependent on such
factors as the microwave congestion in the BTA, the replacement system type and
features, and the working condition of the support equipment of the existing
microwave system. The pricing has been calculated using models which are
representative of other BTA markets Lucent is currently engaged in clearing.
Actual Spectrum Clearing costs will be developed as the analysis tasks are
completed.
Estimated Price for Spectrum Clearing:
California Service Area $ * * *
Florida Service Area $ * * *
Georgia Service Area $ * * *
TOTAL - SPECTRUM CLEARING $ * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
ASSUMPTIONS - SPECTRUM CLEARING
The following assumptions are applicable to the Spectrum Clearing services
provided by Lucent Technologies:
1. Pricing provided is budgetary and based on models which assume all BTA's
within General Wireless' service areas will be cleared at the same time .
Actual costs will be determined and revised, as necessary, as the analysis is
completed and specific incumbents and associated paths are identified for
clearing and relocation.
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Spectrum Clearing Attachment J
2. Pricing for Spectrum Clearing is based on a stable RF plan. As the RF plan
changes or is modified, additional iterations of the interference analysis will
be necessary to deal with changes which can have a direct effect upon the
interference environment. Such changes are, changes in coordinates, antenna
changes, elevation changes, modifications to the frequency plan, power (ERP)
changes, etc. The Lucent Spectrum Clearing Manager will coordinate the Spectrum
Clearing activities and changes to the RF Plan with the RF Engineering Manager
and the Site Acquisition Manager to determine the need for additional analysis.
Each interference analysis run will be billed separately.
3. Pricing for Spectrum Clearing is based upon "good faith" negotiations by
incumbents for a "like for like" replacement microwave link as defined by the
Federal Communications Commission and the PCIA.
4. Costs for tower structural analysis are based upon acquisition of original
design drawings for the specific structure and assume that the intended loading,
original plus additions included in the original design have not been exceeded.
Analysis for towers which have exceeded original design loads and/or for which
the design drawings are not available, and/or tower which have not been
maintained properly or have suffered structural damage such that the structural
integrity is in doubt as determined by the Lucent Structural Engineer, will
require field inspection and a detailed analysis on a cost plus basis.
5. The Lucent Spectrum Clearing Manager will make every effort to ensure that
the Spectrum Clearing activities are performed to permit the PCS network to be
deployed on schedule, but can not be responsible for deployment delays that may
occur as a result of changes to the RF Plan, Site Acquisition, changes in
relocation priorities or negotiation delays caused by incumbents.
6. The Lucent Spectrum Clearing Manager will require the following support from
General Wireless:
a. Letters of authorization/Letters of Agency from General Wireless that
authorize Lucent Technologies, or its authorized agents to contact incumbents
and conduct direct negotiations on behalf of General Wireless, Inc., Licensee.
b. Approval of baseline microwave relocation cost estimates developed from the
analysis of the incumbent community.
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Spectrum Clearing Attachment J
c. Authority to conduct negotiations which will result in a contractual
obligation for General Wireless, Inc. for a cash buyout payment directly to an
incumbent to effect a relocation by the incumbent or a turnkey relocation of an
incumbent's microwave link.
d. Authority to proceed with recommendations offered to General Wireless, Inc.
by the Lucent Spectrum Clearing Manager when difficult negotiations with an
incumbent arise and a contract to relocate an incumbent's microwave link at the
baseline cost can not be completed. (Case by case basis)
7. Prior Coordination Notices, which are the responsibility of the licensee,
have not been included in the Spectrum Clearing pricing. Prior Coordination
Notices will be prepared and submitted by Lucent on behalf of General Wireless,
Inc., at additional cost, to be negotiated at the time of prior coordination and
all licensees have been identified.
8. Services provided under this agreement will be performed in a manner
consistent with professional skill and care. Remedies for services not
performed, errors and omissions shall be limited to reworking the services
provided in error or omitted. This shall be the sole remedy offered under this
agreement.
9. Pricing provided for Spectrum Clearing does not include the actual costs for
microwave relocation or cash buyouts to the incumbents.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
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Microwave Facilities Attachment K
Engineering Services
[* INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
MICROWAVE FACILITIES ENGINEERING SERVICES
SCOPE OF WORK
- -------------
Following are the tasks associated with the Microwave Facilities Engineering
Services Scope of Work:
. POINT TO POINT MICROWAVE PATH DESIGN
. MICROWAVE PATH SURVEYS
. FREQUENCY COORDINATION / INTERFERENCE ANALYSIS
. FCC LICENSE APPLICATION (TECHNICAL CONTENT) PREPARATION
. EQUIPMENT ENGINEERING
. INSTALLATION
. OUTDOOR CONSTRUCTION
. TESTING AND COMMISSIONING
POINT-TO-POINT MICROWAVE PATH DESIGN
The design of a point to point microwave network begins with an analysis of
the network requirements from the perspective of traffic routing, capacity
requirements, network topology(s), spectrum allocation, and transmission network
availability objectives. Working with the logical Network Plan provided from
Fixed Network Design, as a source document, engineering models are developed
from this initial analysis that begin to identify maximum path lengths,
frequency bands, antenna diameters, target tower heights, climate factors, path
protection schemes and radio hardware configurations.
The engineering model is the first opportunity for review and inspection of
the proposed network design. Within the framework of the models and assumptions
made, accurate estimates of cost and schedules can be developed and analyzed.
The next step in the process is to perform the preliminary design and
planning. This phase uses the engineering models to establish the parameters
used for the design of each path. Preliminary path profiles are constructed from
USGS terrain data, either from 7.5 Minute topographic maps, or from digitized
terrain data. Each profile is measured against the design performance objective
and engineering model to ensure the design parameters are being met. Paths which
can not be made to achieve the design objective are rejected.
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Microwave Facilities Attachment K
Engineering Services
After all paths in the network have been successfully analyzed and the
network diagram has been constructed, a preliminary (intra-system) interference
feasibility study is conducted to establish the channelization plan in
accordance with FCC requirements and design objectives. Internal interference
cases are resolved and cleared.
At this stage, a second design inspection is conducted and variations to
the original assumptions and estimates are identified and approved, completing
the preliminary point-to-point microwave design.
MICROWAVE PATH SURVEYS
After the preliminary design has been completed, the next phase of the
microwave network design process is to field verify the data taken from the
topographic maps or digital terrain database. Site and path surveys are
conducted to verify site coordinates and elevations, observe and record near
field obstructions and to establish the feasibility of constructing a microwave
station.
After the detailed site survey has been completed, the path is field
inspected to verify critical points in the path, locate and measure all path
obstructions, such as trees, buildings, water towers and other man-made and
natural obstructions. Each obstruction is recorded on the path profile data
sheet with the precise coordinates and measured height. The AMSL elevation of
each obstruction site is also recorded and marked on the path profile. The
field survey also makes note of terrain features that will impact the
performance of the path. Such features as bodies of water, cultivated and/or
irrigated fields, large expanses of flat, dry and/or sandy land, large steep
rock formations, etc. are located and recorded on the profile.
Observations are also made of such installations as treatment plants,
refineries and other large, heavy industrial constructions which can have
varying effects on the atmospheric gradient due to artificial changes in ground
temperature and humidity.
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Engineering Services
At the completion of the field survey, the data collected is used to update
the path profile data and all paths are recalculated with the field data.
During this phase, careful attention is paid to reflection analysis and to
centerline selection. If necessary, adjustments to the design are made to
counter the effects of multi-path, obstruction and rain fading predictions. At
the end of this phase, the network design is considered final, except for inter-
system interference analysis, and inspected.
FREQUENCY COORDINATION / INTERFERENCE ANALYSIS
After approval of the final design, the network is submitted for inter-
system interference analysis. During the interference analysis, interference
cases are identified into and out of external microwave systems in operation and
sharing the proposed frequency bands. Each case of interference is analyzed for
appropriate corrective action. Cases into the proposed system may be accepted,
or cleared using a number of methods. Increases in antenna performance, OH loss
calculations, adjustments to transmit power, polarity, and selection of
available non-interfering channels are all methods to clear interference cases.
When interference is into an external system, the case may be cleared by
reducing transmit power, increasing the path loss of the interfering path by
performing an OH loss calculation, increasing the performance and discrimination
of the transmitting, (interfering) antenna, or selecting a different frequency
and or polarity of the interfering path. When none of these methods are
successful in clearing the case, more drastic measures are analyzed. These
involve moving to a different frequency band, suggesting upgrades to the
equipment receiving the interference, or selecting a different transmission
medium. When all cases of interference have been cleared, the microwave network
design is complete and ready for detailed equipment engineering and
implementation.
At the completion of the design phase, the Microwave Design Document is
published and distributed. This document contains all of the technical data
used in the design of the microwave system and provides the reference for
measuring performance of each path.
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Microwave Facilities Attachment K
Engineering Services
LICENSE PREPARATION
Technical content of FCC license application is completed for each path.
Appropriate FCC forms are used to complete the technical application. Completed
applications are signed by a responsible engineer and forwarded to the customer
for final approval and submittal.
EQUIPMENT ENGINEERING
The detailed equipment engineering phase uses the Microwave Design Document
as a source document to generate the detailed material specifications for the
ordering and procurement of the radio, antennas, antenna mounts, waveguide and
installation hardware. A set of site records, such as floor plans, equipment
layout records, tower elevation and antenna plan drawings, waveguide routing,
grounding details, etc., will be produced to facilitate the installation effort
as well as serve as site documentation. This services also includes tracking
material shipments, shortages and coordinating installation and construction
start dates.
INSTALLATION
The indoor installation includes the assembly and installation of the radio
hardware, connection of power feeders, alarms and baseband data cables to the
customer circuit interface. The installation of the microwave equipment into
prefabricated huts will be staged at a Lucent Staging facility where
installation may be concentrated and a high installation efficiency may be
achieved. Installation effort includes warehousing and storage of equipment and
delivery to the sites. Installation at roof-top or co-located sites will be
performed by on-site installation teams.
OUTDOOR CONSTRUCTION
The outdoor construction covers the assembly and installation of the
antenna mounts and antennas on the owner's tower or antenna support structure
and the installation of the elliptical waveguide feeder, support hardware and
feeder grounding, routing into the equipment shelter and connection to the radio
equipment.
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Engineering Services
TESTING AND COMMISSIONING
All field tests, including electrical alignment of the antennas, VSWR
measurements, radio optioning, turnup tests, frequency & power measurements and
link acceptance tests will be performed by the field engineer. The test results
will be documented and measured against the link design criteria as specified in
the Microwave Design Document to ensure that link performance is in accordance
with the design.
PRICING - MICROWAVE FACILITIES ENGINEERING SERVICES
Refer to the attached spreadsheet for microwave site models and associated
pricing.
ASSUMPTIONS MICROWAVE FACILITIES ENGINEERING SERVICES
The following assumptions are applicable to the Microwave Facilities Engineering
Services Scope of Work:
1. Pricing of design effort assumes the Fixed Network Design will be performed
by the Lucent Network Design Group at Holmdel, NJ, using the Network Planning
Toolkit.
2. Model pricing for outsourced equipment assumes Lucent will engineer and
recommend equipment requirements and will furnish a detailed material list to
General Wireless, Inc. for purchasing and procurement. A letter of agency from
General Wireless will be required by Lucent personnel to negotiate pricing,
schedules and delivery of outsourced materials.
3. Microwave Facility Network costs will depend on the actual mix of models and
modifications to the attached models to meet specific network needs. Specific
applications of microwave link designs required for the network which do not
comply with the models developed, will be configured and priced separately.
Refer to the attached Digital Microwave Facilities Backhaul Models spreadsheet
for representative material recommendations.
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Microwave Facilities Attachment K
Engineering Services
4. Model pricing assumes microwave sites will be co-located with PCS cell sites
and will share towers, access roads, etc. The pricing in the attached
spreadsheets excludes all site development, tower and foundation costs. Where
independent microwave sites are required for network needs, appropriate civil
and construction costs will be added. The model equipment installation pricing
is based on installation of the microwave equipment in pre-fabricated equipment
shelters at a Lucent material staging facility where high levels of efficiency
can be realized.
5. Model pricing is based on a large volume of microwave links designed and
implemented as a continuous effort within each of General Wireless' service
areas. Microwave links implemented on a "one by one" basis will be priced
separately.
6. Pricing assumes adequate line of sight is possible between stations at
centerlines which can be accomodated by towers sized for the PCS antenna heights
and that clear microwave channels will be available within the selected
frequency bands.
7. Implementation delays, beyond the control of Lucent, associated with the
engineering, procurement and implementation of outsourced items will not
result in penalties or liquidated damages to Lucent Technologies. Lucent will
act in good faith to request the most favorable procurement and manufacturing
intervals, but can not guarantee such intervals in advance.
8. Microwave implementation costs assume a standard 40 hour work week for
equipment installation activities and a 48 hour work week for the outdoor
construction activities. Actual work schedules will be based on the detailed
implementation schedule developed for the PCS deployment. Additional overtime
worked by Lucent personnel at the request of General Wireless to meet specific
completion dates will be billed as additional effort.
9. Services furnished under this agreement will be performed in a manner
consistent with professional skill and care. Remedies for services performed in
error or omitted shall be limited to reworking the services provided in error or
omitted. This shall be the sole remedy offered under this agreement. Billing
for services rendered under this agreement will be made on a progressive basis,
as the work is completed.
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Microwave Facilities Attachment K
Engineering Services
10. Rooftop installations of microwave assume that equipment space will be
available for the installation of microwave equipment. Access radio
configurations for 18 and 23 Ghz systems incorporate outdoor mounted RF Units
which are located on the antenna mounting structure.
11. The pricing provided for this microwave service is to be considered as a
baseline. Deviations of more than * will require authorization from GWI.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
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General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
CALIFORNIA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
CALIFORNIA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Lucent Technologies, Inc. - Proprietary
<PAGE>
General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
FLORIDA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
FLORIDA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
GEORGIA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless, Inc. Attachment K
Digital Microwave Backhaul Facility Models
GEORGIA
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Lucent Technologies, Inc. - Proprietary
<PAGE>
Program Management Attachment L
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
PROGRAM MANAGEMENT
STATEMENT OF WORK
- -----------------
Lucent Technologies Program Management Service provides the resources and skills
to plan, coordinate, and manage all of the work required for deployment of a PCS
network. As part of this service, Lucent Technologies will work with GENERAL
WIRELESS INC. to establish plans, budgets and assume the responsibility for
their achievement. This includes the identification and management of the
necessary resources, regardless of whether they are internal to Lucent or from
an external subcontractor.
Lucent Technologies assumes responsibility for functions such as project
control, contract administration, accounting management, and subcontractor
procurement. These functions support delivery of services such as RF
Engineering, Fixed Network Design, Spectrum Clearing, Site Acquisition,
Structural Engineering, and Construction Services. While Lucent Technologies has
extensive capabilities in these areas, the selective outsourcing of these
resources may be made based on the scope of work, quality of work assessment,
competitive pricing, availability of resources, and your specific preferences.
Lucent Technologies' price for this service is in the form of a management fee
of $ * * per cell site. This fee will be invoiced monthly based on an *
month implementation interval.
PROGRAM MANAGEMENT
GENERAL WIRELESS INC. will benefit from Lucent Technologies Program Management
service in the following ways:
EARLIER REVENUE FLOW
Lucent Technologies recognizes that rapid deployment of a PCS network results in
a faster revenue flow and more immediate earnings for the PCS provider. Time-
frames are minimized through Program Management's effective management of all
members of the deployment team. Lucent' s teaming approach to management of the
network deployment efforts results in all members understanding of and
commitment to the same set of objectives and the same Master Schedule.
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Program Management Attachment L
MINIMIZED COSTS
Lucent Technologies' approach to Program Management is to deliver in the most
cost effective manner each service function based on scope of work, quality,
competitive pricing, availability of resources, and GWI's preferences. In
instances when resources need to be out sourced negotiations with each supplier
and direct billing process minimizes the cost for network deployment.
Lucent Technologies also minimizes costs through volume contracts from the
National Purchasing Organization. While many of the products required for
deployment can be secured at a competitive price from the subcontractor
performing the work, there may be cases where a national purchasing agreement
may result in reduced costs. For those cases, Lucent 's National Purchasing
Organization will assume responsibility for ensuring that the products meet the
stated requirements and that they are provided at the lowest possible cost.
Lucent Technologies maintains a very comprehensive change control management
process. Requests for changes are monitored as part of Program Management to not
only ensure conformance with proper procedures, but they are managed to fully
understand the impact of the requested change. Lucent Technologies will work
with GENERAL WIRELESS INC. to evaluate change requests to understand the
financial, operational, and long term impact.
HIGH QUALITY
To offer the highest possible quality of support services, all services
providers must meet Lucent Technologies' performance requirements. The
providers may be from Lucent Technologies, they may be external subcontractors,
or they may be companies that have an existing relationship with the customer.
Lucent Technologies will make every attempt to utilize companies with existing
relationships with GENERAL WIRELESS INC., provided those companies meet the
required quality standards. In critical skill areas, subcontractors are pre-
qualified to ensure that resources are available when required. For other work
areas, all subcontractors are evaluated through a screening process to ascertain
their abilities to meet Lucent' s high quality standards, and to perform the
work under the tight schedules that are required. As part of subcontractor
selection, Lucent Technologies makes every attempt to identify companies that
are included as part of the Minority, Women, or Disabled Veteran business
classifications.
ON-GOING SUPPORT
The value of a PCS network design is measured not only in whether it will meet
your requirements when it becomes operational, but whether it can be effectively
maintained and expanded as required by market growth. The benefits of fast
system deployment, minimized cost and high quality will be diminished if network
performance cannot be maintained and the system growth and optimization is not
easily performed. As part of the Program Management Service, Lucent
Technologies can provide to GENERAL WIRELESS INC. the specific system
documentation required to effectively manage their networks. They are also
prepared to include any on-going support that may be required to assist in a
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Program Management Attachment L
system's operation and expansion, or to establish the exact structure of
preventive and remedial maintenance desired by their customer. Lucent
Technologies' maintenance personnel will be included as part of the Lucent's
deployment team to ensure the most effective transition from deployment to
operational support.
PROGRAM MANAGEMENT ADVANTAGES
Use of Lucent Technologies for Program Management results in advantages that
cannot be realized through the use of other services companies. The key
differences include the following:
. Deployment will be supported by Bell Labs. World-class professionals
trained in the rapidly changing technologies of Wireless will be
available to support the deployment plans and schedule.
. Functions that are key to your success will also be provided by Lucent.
. Project managers are included as part of the Program Management Team to
ensure proper coordination and planning of the physical installation and
integration function as well as the transition from deployment to
operational support.
. GENERAL WIRELESS INC. receives the exact combination of support required
to achieve their deployment management objectives. Program Management is
not a single fixed offer but a specialized package of services to exactly
meet your needs.
. Existing Lucent capabilities and relationships will be utilized to
support GENERAL WIRELESS INC.. An existing National Procurement
Organization and pre-qualified subcontractors in critical skill areas
will be utilized when required to support the Program Management service.
PROGRAM MANAGEMENT SERVICES COMPONENTS
The specific elements of service provided as part of Program Management are
described in the following paragraphs. In reviewing this information, the
advantages of Program Management become apparent when considering the importance
of an integrated design and implementation effort. With Lucent Technologies
responsible for management of the overall deployment, the
tradeoffs required by requests for changes are effectively managed without
delaying deployment time-frames, without compromising the design, and at minimum
cost. In each case, deployment teams are made up of the exact set of resources
required to effectively achieve schedules and cost objectives. Following is a
listing of the Program Management Services Functions.
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PROJECT CONTROL
Included as part of Project Control are all of the activities required to manage
the program costs and schedule to ensure consistency with existing plans.
Examples of key activities in this area include change control and management of
schedules and reports. Change control will provide GENERAL WIRELESS INC. with
support that includes not only the management of changes as per the contract,
but also ongoing assessment and trending of changes. Examples of reports
include the Master Schedule, intermediate and weekly schedules for the
functional services areas, and various S-Curve charts to reflect progress
against plan. In all cases, Lucent Technologies will develop a status reporting
process tailored to your needs and requirements. We will work with GENERAL
WIRELESS INC. to develop Asset Tracking reports as required.
CONTRACT ADMINISTRATION
Efforts in this area address conformance with the prime contract.
Interpretation and maintenance of the contract, as well as claims management,
project administration, and records management are major activities to ensure
that there is a total understanding of planned deliverables. Contract
administration functions ensure that every member of the team understands their
responsibilities and addresses the proper objectives.
ACCOUNTING/CONTROLLER MANAGEMENT
The efforts in this area address the accuracy of all of the financial activities
associated with the deployment of the network. A well-managed deployment
plan not only meets the schedule and operational objectives, but also ensures
that all financial activities are accurate, timely, and according to plan. The
efforts in this area will protect GENERAL WIRELESS INC. by analyzing all vendor
and subcontractor billing to verify product delivery and performance as per the
purchase agreements.
PROCUREMENT AND MATERIALS MANAGEMENT
The activities in this area are to standardize the selection and procurement of
all subcontractors and any products, that can be more effectively arranged by
Lucent Technologies, and are needed to satisfy the requirements of the
deployment. Lucent Technologies' Master Construction Agreement (MCA) process
allows pre qualification of subcontractors. The process includes evaluations
based upon a contractors' D&B, insurance/bonding coverage, track record and
experience, and overall quality. A valid MCA is not a permanent award, but
rather ongoing evaluations of performance are made to continuously validate
performance.
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MANAGEMENT OF FUNCTIONAL SERVICES
A critical element of Program Management is the management of the efforts of all
functional service providers to ensure adherence to the system deployment
objectives. All services providers, regardless of whether they are internal or
external to Lucent Technologies are part of the deployment team. This includes
functions such as Engineering, product provisioning, Installation, Site
Acquisition, Spectrum Clearing, RF Engineering, Fixed Network Design, Structural
Engineering, and Construction Management. Lucent Technologies' commitment is
that all of the service providers will be established as a team to effectively
address the objectives of GENERAL WIRELESS INC..
PROGRAM MANAGEMENT SUMMARY
Lucent Technologies' skills and experiences in deploying communications networks
coupled with its leadership in Wireless technology place it as the clear leader
in Program Management. Use of Program Management in conjunction with Lucent 's
Engineering, Installation and provisioning services for the PCS CDMA equipment
provide GENERAL WIRELESS INC. with support that guarantees not only an effective
network deployment but also a process for seamless on-going support. This
combination provides the most effective approach to worry-free establishment of
PCS service.
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LUCENT TECHNOLOGIES PROPRIETARY
This document contains proprietary information of
Lucent Technologies and is not to be disclosed or used except in
accordance with applicable agreements.
Page 5
<PAGE>
Attachment M
PROJECT DEPLOYMENT DELIVERY SCHEDULE
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
This attachment M relates to paragraph 1.4 and Attachment A of the General
agreement between Lucent Technologies and General Wireless Inc. The deployment
schedules outlined in this Attachment M are for planning purposes and are based
upon standard intervals and an assumed deployment of * PCS Minicells by
year-end * and an additional * PCS Minicells by year-end * .
Seller will provide a final delivery and deployment schedule after the contract
start date and after the completion of the RF Engineering design.
The * * Schedule (reference M-2) assumes a * Week Manufacturing lead
time from contract start date. Shipments would commence on week *
through week * representing a * week Deployment Delivery Schedule.
The * * Schedule (reference M-3) commences on Week * and runs until
* * *.
The Project Schedule Gantt Chart for * through * (reference M-4) begins
upon * * * * *. The tasks itemized on the Project Schedule
Gantt Chart (reference M-4) reflect standard intervals that will be used for
planning purposes. The Gantt Chart for * through * (reference M-5)
begins at * * * *. This chart reflects the Manufacturing, Shipment
and Installation of the additional * Minicells ordered for * .
The Gantt Chart for * through * (reference M-6) represents * * *
* * *.
Liquidated Damages for delayed delivery of Minicells, as referenced in
Attachment B, are based upon the interval-based schedule provided in this
Attachment M (reference M-2, M-3) entitled "Cell Deployment Delivery Schedule."
Version 2 LUCENT TECHNOLOGIES PROPRIETARY M-1
<PAGE>
General Wireless Inc.
Project Deployment Delivery Schedule
1996-1997
* * * * * * * * * * * * * * * * * *
[bar chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless Inc.
Project Schedule
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Lucent Technologies Proprietary
<PAGE>
General Wireless Inc.
Project Deployment Delivery Schedule
1997-1998
* * * * * * * * * * * * * * * * * *
[bar chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
General Wireless Inc.
Project Deployment Delivery Schedule
1996-1998
* * * * * * * * * * * * * * * * * *
[bar chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
PROJECT DEPLOYMENT DELIVERY SCHEDULE ATTACHMENT M
* * * * * * * * * * * * * * * * * *
[chart deleted]
* * * * * * * * * * * * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
EXHIBIT 10.9
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
December 5, 1996
Mr. Roger D. Linquist
President and Chief Executive Officer
General Wireless, Inc.
GWI PCS Inc,
8144 Walnut Hill Lane
Suite 600
Dallas, TX 75231
Dear Mr. Linquist:
GWI PCS, Inc. (the "Borrower" or "you"), a wholly-owned subsidiary of General
Wireless, Inc. (GWI"), has advised Lucent Technologies Inc. ("Lucent," the
"Vendor" or "we") that the Borrower has need for a credit facility in the amount
of up to $300,000,000 in connection with the purchase of certain infrastructure
equipment and related turnkey services to be provided by Lucent in connection
with the build-out of the Borrower's wireless network (the "Project"). You have
requested that Lucent provide such credit facility (the "Credit Facility"), and
Lucent is hereby pleased to provide you with a commitment of the Credit
Facility.
Attached hereto as Exhibit A to this letter is a Statement of Terms and
---------
Conditions (the "Term Sheet") setting forth the principal terms and conditions
agreed to by you and us, pursuant and subject to which the Vendor is willing to
make the Credit Facility available and the Borrower is willing to incur, secure
and repay the financing described therein. Capitalized terms used but not
defined herein shall have the meanings given to them in the Term Sheet.
In agreeing to provide the Credit Facility, we have assumed and relied, without
independent verification, upon the accuracy and completeness of all financial
and other information provided to us by the Borrower, GWI and their advisors.
With respect to financial forecasts and projections ("Projections"), we have
assumed that such financial forecasts and projections have been reasonably
prepared using the best currently available estimates and judgments of the
Borrower, GWI and their advisors.
<PAGE>
-2-
At the appropriate time, based upon market conditions, the Vendor intends to
sell loans made under the Credit Facility to assignees (together with the
Vendor, the "Lenders"), which shall exclude any competitors of GWI and its
subsidiaries. You and GWI agree to assist the Vendor in completing a
syndication reasonably satisfactory to it. Such assistance shall be provided on
a reasonable basis and shall include (a) direct contact between senior
management and advisors of the Borrower and GWI and the proposed Lenders, (b)
assistance in the preparation of a confidential offering memorandum and other
marketing materials to be used in connection with the syndication, (c) the
hosting, with the Vendor, of one or more meetings of prospective Lenders, and
(d) the cooperation set forth in the Term Sheet.
You hereby represent and covenant that (a) all information other than the
Projections (the "Information") that has been or will be made available to us by
you, GWI or any of your or GWI's representatives is and will be, when furnished,
complete and correct in all material respects and does not and will not, when
furnished, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which such statements
are made, (b) the Projections made available to us by you, GWI or any of your or
GWI's representatives have been and will be prepared in good faith based upon
reasonable assumptions, and (c) you will notify us promptly upon the occurrence
of any event which would result in the Information previously provided to us
being materially inaccurate or misleading. You understand that in entering into
the Credit Facility we may use and rely on the Information and Projections
without independent verification thereof.
The Vendor's commitment hereunder and the availability of the Credit Facility is
subject to (a) there not occurring or becoming known to us any condition or
change that affects or would be likely to affect in any material and adverse
respect (i) the business, operations, financial condition or material
contractual arrangements of the GWI or Borrower and its subsidiaries taken as a
whole, or (ii) the Borrower's or GWI's ability to perform their respective
obligations under the Credit Facility, (b) our not becoming aware after the date
hereof of any event or circumstance affecting the Borrower, GWI or the
transactions contemplated hereby that is inconsistent in a material and adverse
manner with information disclosed to us by the Borrower or GWI prior to the date
hereof, (c) the negotiation, execution and delivery on or before April 30, 1997,
of definitive documentation with respect to the Credit Facility reasonably
satisfactory to us and our counsel and (d) the other conditions set forth or
referred to in the Term Sheet. The terms and conditions of the Vendor's
commitment hereunder and of the Credit Facility are not limited to those set
forth herein and in the Term Sheet, and matters not covered by the provisions
hereof and of the Term Sheet are subject to the reasonable approval and
agreement of the Vendor and the
<PAGE>
-3-
Borrower. The Vendor and the Borrower shall negotiate in good faith the terms
and conditions of the definitive documentation with respect to the Credit
Facility.
You and GWI agree to (a) indemnify and hold harmless the Vendor, its affiliates
and the respective officers, directors, employees, advisors and agents of such
persons (each, an "indemnified person") from and against any and all losses,
claims, damages and liabilities to which any such indemnified person may become
subject arising out of or in connection with this Commitment Letter, the Credit
Facility, the use of the proceeds thereof, the transactions contemplated hereby
or any claim, litigation, investigation or proceeding relating to any of the
foregoing, regardless of whether any indemnified person is a party thereto, and
to reimburse each indemnified person upon demand for any legal or other expenses
incurred in connection with investigating or defending any of the foregoing,
provided that the foregoing indemnity will not, as to any indemnified person,
- --------
apply to losses, claims, damages, liabilities or related expenses to the extent
they arise from the willful misconduct or gross negligence of such indemnified
person, and (b) reimburse the Vendor for all costs and expenses as set forth
under "Expenses" in the Term Sheet. No indemnified person shall be liable for
any indirect, consequential, special or punitive damages in connection with its
activities related to this Commitment Letter, the Term Sheet, the Credit
Facility or the definitive financing documentation, absent bad faith, gross
negligence or willful misconduct. This paragraph shall not alter any rights or
obligations among the Vendor, GWI, the Borrower or any of their respective
subsidiaries set forth in the General Agreement for the Purchase of PCS Systems
between the Vendor and GWI and/or its subsidiaries.
This Commitment Letter shall not be assignable by you or us without the prior
written consent of the other party (and any purported assignment without such
consent shall be null and void), is intended to be solely for the benefit of the
parties hereto and is not intended to confer any benefits upon, or create any
rights in favor of, any person other than the parties hereto. This Commitment
Letter may not be amended or waived except by an instrument in writing signed by
you and us. This Commitment Letter may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one agreement. Delivery of an executed signature
page of this Commitment Letter by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. This Commitment Letter is
the only agreement that has been entered into among us with respect to the
Credit Facility and sets forth the entire understanding of the parties with
respect thereto. This Commitment Letter shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Commitment Letter is delivered to you on the understanding that neither
this Commitment Letter or the Term Sheet nor any of their terms or substance
will be disclosed, directly or indirectly, to any other person except (a) to
your
<PAGE>
-4-
officers, agents and advisors, and the officers, agents and advisors of GWI who
are directly involved in the consideration of this matter, (b) as may be
compelled in a judicial or administrative proceeding or otherwise required by
law, including any requirements under the Securities Act of 1933 and the rules
and regulations thereunder (in which case you agree to inform us promptly
thereof and use your diligent efforts to maintain the confidentiality of this
Commitment Letter and the Term Sheet, or as many of the terms as possible) or
(c) Borrower and GWI may disclose this letter and the Term Sheet to potential
investors in the course of financing.
The reimbursement, indemnification and confidentiality provisions contained
herein shall remain in full force and effect regardless of whether definitive
financing documentation shall be executed and delivered and notwithstanding the
termination of this Commitment Letter or the Vendor's commitment hereunder. The
Borrower may terminate this Commitment Letter and the Vendor's commitment
hereunder at any time.
Recently, we have been working with you to establish one or more credit
facilities with financial institutions or similar entities to establish credit
facilities for your purchase of equipment from us in connection with the
Project. You and GWI will use your best efforts to cooperate with us to attempt
to establish these other credit facilities in place of the Credit Facility, on
terms and conditions which are acceptable to both you and us.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms hereof and of the Term Sheet by returning to us executed
counterparts hereof, not later than 5:00 p.m., New York City time, on December
9, 1996, failing which the Vendor's commitment herein will expire at such time.
We are pleased to have been given the opportunity to assist you in connection
with this important financing.
Very truly yours,
LUCENT TECHNOLOGIES INC.
By: /s/ Donald K. Peterson
____________________________
Name: Donald K. Peterson
Title: Executive Vice President
& Chief Financial Officer
<PAGE>
-5-
Accepted and agreed to as of
the date first written above by:
GENERAL WIRELESS, INC.
By: /s/ Roger D. Linquist
-------------------------------------
Name: Roger D. Linquist
Title: President and Chief Executive
Officer
GWI PCS INC.
By: /s/ Roger D. Linquist
-------------------------------------
Name: Roger D. Linquist
Title: President and Chief Executive
Officer
<PAGE>
EXHIBIT A
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
CONFIDENTIAL
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GWI PCS Inc.
$300 Million Senior Secured Credit Facility
Summary of Terms and Conditions
December 5, 1996
PARTIES
Lender: Lucent Technologies Inc. ("Lucent") or its assignee
Borrower: GWI PCS Inc. (a wholly-owned subsidiary of General Wireless,
Inc.), which is the 100% owner of two operating
subsidiaries, one for the Georgia area and one for the
California and Florida areas, which subsidiaries of the
Borrower have between them 13 wholly-owned subsidiaries,
each of which holds one FCC License (as defined below).
Guarantors: General Wireless, Inc. ("GWI") and each direct or indirect
subsidiary of the Borrower.
TYPES AND AMOUNTS OF CREDIT FACILITIES
TRANCHE A LOAN
Facility: $200,000,000 credit facility converting to a term loan as
described below ("Tranche A loans").
Term: 8 years
Availability: The Tranche A facility shall be available from the date of
the closing of this credit facility (the "Closing Date")
until December 31, 1999.
Conditions precedent for Tranche A loans shall include the
following:
. Completion of Offerings (defined below) with minimum
proceeds of $ * million (exclusive of any Hyundai
financing) with terms reasonably acceptable to Lucent and
consistent with the GWI's business plan, of which not
less than $ * million shall be proceeds of equity
<PAGE>
-2-
Offerings (the foregoing Offerings being the "Tranche A
Required Offerings").
. GWI's existing shareholders shall have contributed not
less than $63 million as referenced in the Borrower's
unaudited September 30, 1996 financial statements
(excluding the Hyundai financing referred to above).
. The FCC has granted to the Borrower or its wholly-owned
subsidiaries all 14 PCS C block licenses (the "FCC
Licenses") and the Borrower and its subsidiaries are in
compliance with all material FCC requirements with
respect to the FCC Licenses.
Amortization: Outstanding principal of all Tranche A loans shall be
repayable in equal quarterly installments commencing March
31, 2001 and ending December 31, 2004.
TRANCHE B LOAN
Facility: $100,000,000 credit facility converting to a term loan as
described below ("Tranche B loans", and the Tranche A loans
and the Tranche B loans being collectively referred to as
the "loans").
Term: 7 years
Availability: The Tranche B facility shall be available during the two
year period commencing January 1, 1998 and ending December
31, 1999.
Conditions precedent for Tranche B loans shall include the
following:
. The Borrower and its subsidiaries have at least 14
million Covered POPs.
. The Borrower has secured 20,000 subscribers.
. Completion of Offerings with minimum aggregate proceeds
of $ * million (including the Hyundai financing) with
terms and conditions reasonably acceptable to Lucent and
consistent with GWI's business plan, of which not less
than $ * million shall be proceeds from equity
Offerings (in each case inclusive of the proceeds of the
Offerings referred to under the conditions for the
availability of Tranche A loans).
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
-3-
Amortization: Outstanding principal of all Tranche B loans shall be
repayable in equal quarterly installments commencing March
31, 2001 and ending December 31, 2004.
Availability
Conditions
for First Loan: Usual and customary including delivery of various documents,
opinions (including opinion of FCC counsel regarding
validity of FCC Licenses and qualification under the FCC
entrepreneurs requirements for the C-block licenses), and
certificates, perfection of liens on all collateral (subject
to the limitations set forth in "Security"), and execution
of all documents.
On-Going
Availability
Conditions: The making of each loan under this credit facility
shall be conditioned upon (i) all representations and
warranties by the Borrower, GWI and their subsidiaries in
the credit documentation (including without limitation, the
material adverse change and litigation representations)
being true and correct in all material aspects and (ii)
there being no Default or Event of Default in existence at
the time of, or after giving effect to the making of, such
loan.
Use of Proceeds: Financing amounts payable to (I) Lucent under the supply
contract (the "Supply Contract") between Lucent and GWI
and/or its subsidiaries or (ii) third parties for up to $35
million of equipment purchases as directed by Lucent under
the Supply Contract.
Termination of
Commitment
and Credit
Facility: Lender may terminate its commitment to make loans and
terminate the Lucent credit facility if the Tranche A
Required Offerings have not been completed by July 1, 1997.
FEES AND INTEREST
RATES
Rate of Interest: LIBOR plus * %, or Base Rate plus * %, as selected by
the Borrower. The Base Rate shall be the greater of (a) the
prime rate of agreed upon reference banks, or (b) the
Federal funds rate plus 0.5% per annum. Interest shall be
paid * *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
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Commitment Fee: * % per annum paid * * in arrears on the average unused
portion of the entire $300 million commitment commencing on
the Closing Date.
Arrangement Fee: * % of the commitment amount, with * % of the Tranche A
committed amount payable on the date the first Tranche A
loan is made, and * % of the Tranche B committed amount
payable on the date the first Tranche B loan is made.
Administrative
Agent Fee: The Borrower will pay the Lender annually in advance
an administrative agent fee of not more than $ * . The
first year's agency fee shall not be payable until the date
of the first Tranche A loan.
Accrual of Fees
and Expenses: If GWI has not completed an Offering on or prior * * *,
then any amounts otherwise payable by the Borrower hereunder
in respect of fees or reimbursement of expenses shall not be
due and payable until the earlier of (I) * * * * * * *
or (ii) * * *. Any deferral of amounts payable by the
Borrower by reason of this paragraph shall not relieve the
Borrower of its liability for such fees and expenses or
prevent the accrual thereof.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
Warrants: Warrants to purchase the same class of equity (or units, as
applicable) as issued by GWI in the equity portion of the
Tranche A Required Offerings for a number of shares (or
units, if applicable) equal to $6,000,000 divided by the
Initial Issue Price, to be issued at the Closing Date. The
warrants will be exercisable at the Initial Issue Price,
will expire on December 31, 2004, will be transferable
(subject to compliance with securities laws) and will have
customary antidilution provisions for stock splits, stock
dividends, etc. The warrants shall be exercisable at any
time or from time to time after the Borrower and Lucent,
based upon discussions with the SEC, determine that the
warrants may be exercised without integration with a
registered initial public offering, if applicable, completed
by GWI to raise the equity required for the Tranche A
Required Offerings. The Borrower and Lucent agree that
their goal shall be to have the warrants exercisable on the
earlier of 6 months after such registered initial public
offering or December 31, 1997. GWI and the Lender shall
enter into a registration
<PAGE>
-5-
rights agreement in substantially the form attached as an
exhibit to GWI's Registration Statement on Form S-1
presently on file with the SEC.
If GWI does not complete a registered initial public
offering for the same class of equity as may be received by
Lucent upon the exercise of the warrants by July 1, 1998,
Lucent shall have the option to require GWI or the Borrower
to pay Lucent the fair market value of the warrants. At the
option of the Borrower and GWI, this payment may be added to
the Tranche A loans rather than paid in cash, and the amount
of the Tranche A facility shall be increased accordingly
(and the Tranche B facility shall remain $100 million). The
fair market value shall be determined (i) by agreement
between an investment banking firm of nationally recognized
standing selected by GWI or the Borrower, acting for GWI or
the Borrower and at their expense, and by an investment
banking firm of nationally recognized standing selected by
Lucent, acting on its behalf and at its expense, or, if they
cannot agree, (ii) by an investment banking firm of
nationally recognized standing which shall be selected by
them jointly. In determining fair market value, the
investment banking firms shall value the warrants as if the
securities issuable upon the exercise of the warrants were
trading in a public market at the time, and that
securities of this type had been issued by GWI in a
registered initial public offering.
Prepayment Fees: A prepayment fee will be assessed on any loans assigned or
sold into markets or to buyers which require prepayment
fees. The prepayment fees will be:
. * % for prepayments made prior to the 5/th/ amortization
repayment date.
. * % for prepayments made on or after the 5/th/
amortization repayment date and prior to the 9/th/
amortization repayment date.
. * % for prepayments made on or after the 9/th/ and prior
to the 13/th/ amortization repayment date.
No prepayment fee shall be payable for prepayments made on
or after the 13/th/ amortization repayment date.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
-6-
GENERAL TERMS AND CONDITIONS
Security: The obligations of the Borrower with respect to the credit
facility shall be secured by a perfected first priority lien
on all assets of the Borrower and its subsidiaries including
the stock of the Borrower and its subsidiaries and all
investments in or loans to the Borrower or its subsidiaries
by any affiliate, as well as the FCC Licenses held by the
Borrower and each subsidiary (to the extent permitted under
applicable law and subject to the terms and conditions under
which the FCC Licenses were granted and any prior lien
securing deferred payments due to the United States for
acquisition of the FCC Licenses and the interest thereon
("FCC License Acquisition Liens")). The FCC License and
related assets pertaining to the Chico, California BTA shall
not be included as collateral for the Lucent credit facility
if Lucent does not provide any equipment or services with
respect to the build-out of that BTA. The collateral shall
have certain exclusions for assets acquired with purchase
money indebtedness and capital leases as permitted by
"Permitted Indebtedness".
Intercreditor
Arrangement: The Borrower shall use reasonable efforts to have
the FCC or Federal government enter into an intercreditor
arrangement with respect to liens on the FCC Licenses.
Guarantees: The obligations of the Borrower in respect to the credit
facility shall be guaranteed on a joint and several basis by
GWI and each direct or indirect subsidiary of the Borrower.
Other Guarantees: The Borrower and its subsidiaries shall be permitted to
provide guaranties ("Other Guaranties") for other
indebtedness of GWI for borrowed money, provided that such
Other Guaranties shall be subordinate to the obligations due
to the Lender under the Lucent credit facility, no payments
shall be made on these Other Guaranties so long as any
Default or Event of Default exists under the Lucent credit
facility (or would result therefrom), and the Other
Guaranties shall have release provisions in case the
guaranties to the Lender are released or the guarantor is
sold pursuant to a foreclosure or other action by the Lender
under the credit facility and related collateral
documentation.
Optional Prepayments
and Commitment
Reductions: Loans may be prepaid in minimum amounts of $5 million or
integral multiples of $1 million in excess thereof (or the
entire remaining outstanding principal), subject to
<PAGE>
-7-
customary funding loss indemnities and prepayment fees,
together with all accrued and unpaid interest related to the
loans prepaid. Any loans which are repaid or prepaid shall
not be available for reborrowing. Commitments may be
reduced by the Borrower in minimum amounts of $5 million or
integral multiples of $1 million in excess thereof (or the
entire remaining commitments). Optional prepayments and/or
commitment reductions shall be applied ratably to the two
Tranches and, in the case of prepayments, within each
Tranche to principal in inverse order of maturity. Any
reduction in commitments shall be accompanied by prepayment
of loans to the extent such reduction exceeds the then
available commitments.
Mandatory
Prepayments
and Commitment
Reductions: Mandatory commitment reductions and/or prepayments will be
required (first, as a prepayment, then once all outstanding
loans are prepaid, to reduce commitments) with respect to:
. * % of the net proceeds of any sale or other disposition
by the Borrower or any of its subsidiaries of any assets
which are not reinvested within 180 days.
. * % of Excess Cash Flow .
Any such prepayments or commitment reductions pursuant to
the foregoing shall be applied in the same manner optional
prepayments are applied.
Prepayment of
Other Facilities: If any prepayments are to be made on any other vendor
financing, or any bank credit facilities of the Borrower
(or which the Borrower had guaranteed) (other than
repayments of revolving credit facilities, provided such
amounts repaid remain available to be reborrowed and the
Borrower (or the borrower, if the Borrower is a guarantor)
does not voluntarily reduce the revolving credit line
within 6 months of such repayment), the Borrower shall
provide for a pro rata prepayment of all loans outstanding
under the Lucent credit facility. This provision shall not
apply to prepayments in full of other facilities if such
prepayments do not exceed $ * on a cumulative basis and no
one prepayment in full of any one facility exceeds $ * .
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
-8-
REPRESENTATIONS, WARRANTIES,
COVENANTS AND EVENTS OF DEFAULT
Representations and
Warranties: Including without limitation the following: accuracy of
financial statements; no material adverse change; corporate
existence; compliance with laws; ownership; enforceability
of credit documentation; no conflict with law or contractual
obligations; no material litigation; no Default; ownership
of property; liens; intellectual property; no burdensome
restrictions; taxes, FCC compliance (including entrepreneur
requirements); existence and validity of all material
government consents and permits; Federal Reserve
Regulations; ERISA; Investment Company Act; subsidiaries;
environmental matters; accuracy of disclosure; creation and
perfection and priority of security interests. The
foregoing shall contain such materiality and other
exceptions as shall be reasonably satisfactory to the
Borrower and the Lender.
Affirmative
Covenants: Including without limitation the following: delivery of
financial statements (including annual audited financial
statements, quarterly unaudited financial statements,
quarterly operating budgets), reports, officers'
certificates and other information required by the Lender;
payment of other obligations, continuation of business and
maintenance of existence; compliance with laws and material
contractual obligations including obligations under the FCC
Licenses; maintenance of property and liability insurance in
accordance with prevailing standards; maintenance of books
and records; notices of Defaults, litigation, and other
material events; compliance with environmental laws;
agreement to transfer any after acquired assets (including
any unencumbered FCC Licenses) to Borrower or subsidiary of
Borrower; agreement to cause each newly created subsidiary
to guarantee the credit facility and to grant and perfect
security interests (subject to Permitted Liens) on all of
its assets to secure the Lucent credit facility; agreement
to pledge all the equity interests and other investments in
or loans to each newly acquired subsidiary. The foregoing
shall contain such materiality and other exceptions as shall
be reasonably satisfactory to the Borrower and the Lender.
Financial
Covenants: The Borrower and its subsidiaries shall comply with the
financial covenants set forth on Schedule A hereto.
<PAGE>
-9-
Negative Covenants: Limitations and restrictions imposed on, including without
limitation, the following: additional indebtedness; liens
(other than Permitted Liens); guarantee obligation; mergers,
consolidations and acquisitions; sale, transfer and
disposition of assets; distributions and dividends;
repurchases of equity; investments, loans, and advances;
transactions with affiliates; business lines; prepaying of
indebtedness; amending of any other material document. The
foregoing shall contain such materiality and other
exceptions as shall be reasonably satisfactory to the
Borrower and the Lender. The Borrower shall be permitted to
make Permitted Restricted Payments, provided no Default
exists at the time, or as a result, of any such Permitted
Restricted Payment, and the Borrower shall be in pro forma
compliance with all of its financial covenants after taking
into account any such Permitted Restricted Payment.
Permitted
Indebtedness: The Borrower may incur the following additional
indebtedness:
(a) purchase money indebtedness or indebtedness with
respect to capital leases in an amount not to exceed
$25 million, provided that such indebtedness shall not
be for the acquisition of assets directly related to
the PCS network of the Borrower or its subsidiaries,
and such indebtedness shall not exceed the purchase
price of such assets;
(b) interest rate swaps to hedge against interest rate risk
on indebtedness for borrowed money and not for
speculative purposes;
(c) for refinancing existing indebtedness;
(d) the guarantees permitted hereunder;
(e) subordinated indebtedness on terms reasonably
satisfactory to the Lender;
(f) intercompany indebtedness, provided that such
indebtedness shall be fully subordinated to the loans
to the Lender, and no payments shall be permitted until
all obligations to the Lender under the Lucent credit
facility are paid in full and the Lender's commitment
to make any additional loans shall have terminated; and
(g) unsecured indebtedness to third parties to the extent
the amounts outstanding under (a) above under Permitted
Indebtedness is less than $25 million.
Events of Default: Including without limitation the following: nonpayment of
principal; nonpayment of interest or other amounts; material
inaccuracy of representations and warranties; violation of
covenants; cross default to other
<PAGE>
-10-
indebtedness/obligations of the Borrower or any guarantor
(including GWI); bankruptcy of the Borrower or any guarantor
(including GWI); unpaid judgments; Change of Control;
termination, revocation, non-renewal, or impairment of the
FCC Licenses. The foregoing shall contain such materiality
and other exceptions as shall be reasonably satisfactory to
the Borrower and the Lender.
OTHER CONDITIONS
Default Trustee: To be appointed by the administrative agent, if necessary,
based upon FCC restrictions. The Lender may appoint a
collateral agent or trustee.
Cost and Yield
Protection: The Credit Facility will include customary
indemnities and gross-up provisions for funding losses,
changes in withholding taxes, reserve requirements,
increased costs and changes in law.
Expenses: The Borrower will reimburse the Lender for all reasonable
out-of pocket expenses incurred in connection with the
negotiation, preparation, execution, delivery and closing
documents for the credit facility, including reasonable
expenses in connection with due diligence relating to the
credit facility and fees and expenses of all counsels,
consultants, and appraisers retained by the Lender
<PAGE>
-11-
(provided that the Borrower's total reimbursement obligation
under this sentence shall not exceed $250,000). All
reasonable expenses of the Lender in connection with any
waivers, amendments, or modifications, the investigation of
any alleged defaults and preservation or enforcement of any
rights of the Lender shall also be for the account of the
Borrower.
Indemnity: The Borrower will indemnify the Lender and hold it harmless
from and against all reasonable costs and expenses and
liabilities arising out of or relating to the proposed
transactions, including environmental indemnities. The
Lender shall not be liable for any special, consequential,
indirect or punitive damages, absent bad faith, gross
negligence or willful misconduct on the part of the Lender.
Governing Law: New York
Assignability: The rights and interest of the Lender shall be assignable,
except to competitors of GWI and its subsidiaries.
Borrower
Assistance: * * * * * * * *
* * * * * * * *
* * * * * * *.
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
CERTAIN DEFINITION AND OTHER PROVISIONS
All covenants, restrictions, representations and warranties
and Defaults applicable to the Borrower shall include all
subsidiaries of the Borrower, as applicable.
All accounting terms used herein shall be construed in
accordance with generally accepted accounting principles in
the U.S., unless otherwise indicated.
"Adjusted EBITDA": for the period ending on any date, the sum of (a) EBITDA for
the 12 month period ending on such date, plus (b) cash and
cash equivalents as shown on the balance sheet on such date,
plus (c) committed lines of credit under a revolving credit
facility available on that date and for the next 12 month
period beginning on that date.
"Capital
Expenditures": expenditures made for the purpose of acquiring or
constructing fixed assets, real property or equipment and
<PAGE>
-12-
all systems and development expenditures related to the
build-out of the networks to provide wireless personal
communications services, determined in accordance with GAAP,
provided that no expenditure related to the acquisition of
FCC Licenses and no amount of capitalized interest shall be
considered to be a Capital Expenditure.
"Cash Interest
Expense": for any fiscal period, the amount of interest expense
paid or payable in cash (excluding accreted or pay-in-kind
interest) for such fiscal period determined in conformity
with GAAP, plus any Permitted Restricted Payments.
"Change in
Control": a transaction or series of transactions whereby (i) any
person or group within the meaning of Section 13(d)(3) of
the 1934 Act and the rules and regulations promulgated
thereunder acquires beneficial ownership (within the meaning
of Rule 13d-3 of the 1934 Act), directly or indirectly, of
securities of GWI (or other securities convertible into such
securities) representing 50% (if publicly held, otherwise
30%) or more of the combined voting power of all securities
of GWI (or any successor of GWI by merger or consolidation)
entitled to vote in the election of directors (a
"Controlling Person") or (ii) at any time, a majority of the
directors of GWI (or any such successor of GWI) are persons
who were not (A) in office on the Closing Date, or (B)
initially nominated by directors who were in office on the
Closing Date or by successor directors elected or appointed
upon the initial nomination of such directors or successor
directors or pursuant to a merger or consolidation approved
by such directors or successor directors, or (iii) the
Borrower ceases to be a majority-owned subsidiary of GWI (or
any such successor of GWI). For this purpose, a person or
group shall not be a Controlling Person if such person or
group holds voting power in good faith and not for the
purpose of circumventing the effect of the occurrence of a
Change of Control as an agent, bank, broker, nominee,
trustee, or holder of revocable proxies given in response to
a solicitation pursuant to the 1934 Act, for one or more
beneficial owners who do not individually, or, if they are a
group acting in concert, as a group, have the voting power
specified in the previous sentence.
"Contributed
Capital": at any time, the aggregate amount of equity which then
shall have been contributed to the applicable Person, less
any dividends, distributions, repurchases of equity, or
similar payments (excluding from this deduction Permitted
Restricted Payments).
<PAGE>
-13-
"Covered POPS": at any time, the aggregate number of POPS within the service
area of the facilities providing service to each
geographical area of the Borrower or its wholly-owned
subsidiaries, as the case may be, which shall then have been
placed in commercial operation pursuant to the terms of the
applicable supply contract.
"Default": any event which, with the giving of any notice or the lapse
of any period of time expressly provided from in the
provisions defining or describing any Event of Default, or
both, would become an Event of Default.
"EBITDA": for any fiscal period, the Net Income or Net Loss, as the
case may be, for such fiscal period, after restoring thereto
amounts deducted for, without duplication, (a) interest
expense for such fiscal period determined in conformity with
GAAP, (b) taxes based upon Net Income, (c) depreciation and
amortization and (d) other non-cash charges, and after
excluding from EBITDA any portion of income attributable to
investments in any entity other than wholly-owned
subsidiaries except to the extent the Borrower or a wholly-
owned subsidiary has actually received such income in the
form of cash dividends or similar cash distributions.
"Excess Cash Flow": for any period, the sum of (1) Net Income or Net Loss, plus
(2) the aggregate amount of all non-cash charges deducted in
arriving at Net Income or Net Loss, minus (3) the aggregate
amount of all scheduled repayments and voluntary and
mandatory prepayments of indebtedness of the Borrower and
its subsidiaries for borrowed money (excluding (a) payments
on revolving credit facilities if such amounts remain
available to be reborrowed, (b) mandatory prepayments of the
Loans, (c) repayments and prepayments of indebtedness
pursuant to refinancings and (d) certain other exclusions,
as appropriate), minus (4) Permitted Restricted Payments,
minus (5) the aggregate of cash Capital Expenditures, minus
(6) any net increases in Working Capital and any net
decreases in deferred revenues, plus (7) any net decreases
in Working Capital and any net increases in deferred
revenues, plus (8) any cash payments received by the
Borrower or its subsidiaries from termination of interest
rate swaps to the extent not included in Net Income or Net
Loss, minus (9) all cash payments made by the Borrower or
its subsidiaries in connection with termination of interest
rate swaps to the extent not included in Net Income or Net
Loss, plus (10) any extraordinary, unusual or non-recurring
gains excluded from the calculation of Net Income or Net
Loss, except to the extent such gains are
<PAGE>
-14-
non-cash gains, minus (11) any extraordinary, unusual or
non-recurring losses excluded from the calculation of Net
Income or Net Loss, except to the extent such losses are
non-cash losses.
"Initial Issue
Price": shall mean the average price at which GWI issues
securities to purchasers of its equity securities (or units,
if applicable) sold in the Offering to raise the equity
portion of the Tranche A Required Offerings, provided that
if such equity securities (or units, if applicable) are
issued by a registered initial public offering ("IPO"), the
Initial Issue Price shall be the price to the public in the
IPO.
"Net Income" or
"Net Loss": for any fiscal period, the amount which, in
conformity with GAAP, would constitute the net income or net
loss, as the case may be, for such fiscal period; provided
that Net Income or Net Loss shall exclude extraordinary,
unusual or non-recurring gains and losses.
"Offerings": shall mean any offering of debt securities issued by GWI
(whether or not registered) or offering (whether or not
registered) of equity securities issued by GWI, or any
offering involving the combination of the foregoing or units
involving the foregoing, as applicable.
"Permitted Liens": (i) Usual and customary permitted liens, such as liens for
taxes not yet due and payable, liens and deposits for bids,
tenders, workmen's compensation obligations, and the like,
(ii) liens to secured purchase money indebtedness permitted
by clause (a) under "Permitted Indebtedness, provided such
liens are for the purchase price only and do not extend to
any other assets other than the assets acquired with the
purchase money indebtedness or capital leases, and (iii) FCC
Acquisition Liens.
"Permitted
Restricted
Payments": shall mean any payments made by the Borrower or any of its
subsidiaries to GWI which are used to service Specified
Debt.
"POPs": shall mean the population of a geographic area based upon
the 1995 population as published in PCS Atlas and Data Book
by Paul Kagan.
"Senior Debt": shall mean all Total Debt, less any indebtedness which by
its terms are subordinate in payment to the prior payment in
full of all obligations due to the Lender under the Lucent
credit facility.
<PAGE>
-15-
"Specified Debt": all indebtedness of GWI that is outstanding on the Closing
Date (including any accreted or capitalized interest
accreted or capitalized after the Closing Date) and
identified on an existing debt schedule and all other
indebtedness of GWI incurred at any time after the Closing
Date except to the extent the proceeds of any such
indebtedness are used (a) to acquire any assets, business or
entity not acquired by or transferred to the Borrower or any
of its wholly-Subsidiaries or GWI's other PCS businesses as
in existence on the Closing Date, (b) to fund any payment on
account of GWI's capital stock, or (c) to refinance any
indebtedness incurred to make any such acquisition or to
fund any such payment or to refinance any such indebtedness.
"Total Debt": shall mean at any date, the sum of all outstanding principal
of indebtedness for borrowed money (including capital
leases) outstanding as of such date, plus any accreted or
capitalized interest with respect to such indebtedness as of
such date.
"Total Debt
Service": shall mean, for any period (a) expected Cash Interest
Expense for the immediately following 12 month period, plus
(b) scheduled principal payments during such 12 month
period.
"Working Capital": at any date, the sum of (a) all amounts (other than cash and
cash equivalents) which would, in conformity with GAAP, be
included under current assets on a balance sheet of the
Borrower and its subsidiaries on a consolidated basis, minus
(b) all amounts (other than indebtedness) which would, in
conformity with GAAP, be included under current liabilities
on a balance sheet of the Borrower and its subsidiaries on a
consolidated basis.
<PAGE>
-16-
SCHEDULE A
FINANCIAL COVENANTS
The Borrower and its subsidiaries shall not (on a consolidated basis):
A. Covered POPS. Incur any indebtedness at any time after any of the dates
set forth below if the number of Covered POPs on the last of such dates prior to
the date of such incurrence is less than the number set forth opposite such
date:
Date Number
* * * * * * * *
B. PCS Subscribers. Incur any Indebtedness at any time after any of the dates
set forth below if the number of PCS Subscribers at the time is less than the
number set forth below for the most recent such date:
Date Number
* * * * * * * *
C. Minimum Gross Revenue. Permit the revenues (in thousands of dollars) for
any 12 month period ending on a date set forth below to be less than the amounts
set forth below opposite such date:
Date Number
* * * * * * * *
D. Total Debt to EBITDA. Permit the ratio of (i) Total Debt to (ii) EBITDA to
exceed the ratios set forth below at any time during the relevant period:
Period Ratio
* * * * * * * *
E. Senior Debt to EBITDA. Permit the ratio of (i) Senior Debt to (i) EBITDA
to exceed the ratios set forth below at any time during the relevant period:
Period Ratio
* * * * * * * *
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
<PAGE>
-17-
F. Total Debt to Contributed Capital. Permit the ratio of (i) Total Debt to
(ii) Contributed Capital to exceed the ratios set forth below at any time
during the relevant time period:
Date Ratio
* * * * * * * *
G. Adjusted EBITDA to Total Debt Service. Permit the ratio of (i) Adjusted
EBITDA to (ii) Total Debt as of the last day of any fiscal quarter ending on or
after 12/31/01 be less than * * .
The Borrower and Lucent acknowledge that the foregoing ratios and covenants
shall be based upon the business plan of the Borrower most recently provided to
Lucent prior to the date of this Summary of Terms and Conditions, with a * %
variance from such business plan. In preparing the definitive credit
documentation, adjustments to the covenants and related definitions may be
required to accurately reflect the performance being measured if the ratio or
related definitions inaccurately include or exclude items which are components
of the covenants or ratios. In addition, adjustments shall be made to reflect
differences between GAAP and the corresponding amounts used in the Borrower's
business plan (such as marking to market the debt to the Federal government for
the FCC Licenses).
[ * INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406.]
