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EXHIBIT 10.25
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AMENDED AND RESTATED SYSTEM EQUIPMENT PURCHASE AGREEMENT
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This Amended and Restated System Equipment Purchase Agreement
is made and entered into as of June 30, 2000, by and between Cricket
Communications, Inc. a Delaware corporation (the "Owner"), and Lucent
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Technologies Inc., a Delaware corporation (the "Vendor").
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RECITALS:
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A. WHEREAS, the Owner desires to purchase PCS systems and
related items and services pursuant to this Contract; and
B. WHEREAS, the Vendor desires to provide such PCS systems and
related items and services to the Owner, as described in Exhibit A, including,
but not limited to, the Vendor's obligation to manufacture, engineer, equip,
integrate, install, test and provide technical assistance for said PCS systems
in accordance with the terms and conditions set forth herein;
C. WHEREAS, the mutual goal of the parties hereto is to build
PCS systems that are capable of integrating new technologies while reducing
costs over time in a highly competitive marketplace; and
D. WHEREAS the original Contract was entered into on September
20, 1999 (the "Effective Date") and amended by Amendment No. 1 dated December
20, 1999, the parties wish to further amend and restate this Agreement on the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth in this Contract, the Owner and the Vendor hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Definitions. In addition to the terms listed below, certain
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additional terms are defined elsewhere in this System Equipment Purchase
Agreement and in the Exhibits, and all definitions are subject to the provisions
of subsection 1.2 hereof. As used in this Contract, the following terms have the
following meanings:
"Annual Release Maintenance Fee" means, with respect to each
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System, those recurring annual fees of the Vendor, calculated in accordance with
Exhibit B-5 and invoiced annually on the anniversary of the earlier to occur of
(i) Substantial Completion or (ii) the date such System is placed in Commercial
Service, full payment of which entitles Owner to receive all Initial Software
Features, together with all other base generic software features in standard
software releases, Software Maintenance Releases, Software Enhancements,
Software Maintenance Releases and Software Upgrades
[*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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applicable to CDMA PCS Products which will be made available to Owner when made
generally available by Vendor during the period for which the fees were paid.
"Agency Plan" means the plan documenting the processes,
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relationships and the responsibilities of the Owner, Vendor and Agency
Subcontractor wherein Owner contracts with the Agency Subcontractor under such
plan to perform work for, and supply materials to, the Owner, at rates
negotiated by Vendor with Agency Subcontractor on a national account basis for
the benefit of Owner. The Agency Plan is described in Exhibit E-1 to this
Contract and there shall be at all times during the term of this Contract at
least one Agency Subcontractor.
"Agency Subcontractor" means Sprint North Supply Company, or any
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other vendor, contractor, supplier, licensor or other Person, as mutually agreed
to between Owner and Vendor.
"Applicable Laws" means, as to any Person, the certificate of
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incorporation and by-laws or other organizational or governing documents of such
Person, all U.S. or foreign laws, treaties, ordinances, judgments, decrees,
injunctions, writs, orders and stipulations of any court, arbitrator or
governmental agency or authority and statutes, rules, regulations, orders and
interpretations thereof of any federal, state, provincial, county, municipal,
regional, environmental or other Governmental Entity, instrumentality, agency,
authority, court or other body (i) applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is subject or
(ii) having jurisdiction over all or any part of a System or the Work to be
performed pursuant to the terms of this Contract.
"Applicable Permits" means any waiver, exemption, zoning,
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building, variance, franchise, permit, authorization, approval, license or
similar order of or from any country, federal, state, provincial, county,
municipal, regional, environmental or other Governmental Entity,
instrumentality, agency, authority, court or other body having jurisdiction over
all or any part of a System or the Work to be performed pursuant to the terms of
this Contract.
"Architectural and Engineering Services" or "A&E" means the Work
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to be performed by the Vendor or the Subcontractor, and certain obligations of
the Owner, as described in Exhibit E-4.
"B Exhibits" is defined in subsection 2.4.
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"Backwards Compatible" or "Backwards Compatibility" means (i)
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with respect to new Software Maintenance Releases, Software Upgrades, Software
Combined Releases and Software Enhancements, the ability of each of the two
prior older versions of Software to remain fully functional in accordance with
and up to the performance levels to which each was performing immediately prior
to the integration with the new Software Maintenance Release, Software Upgrade,
Software Combined Releases and/or Software Enhancement, and the ability of such
new Software Maintenance Release,
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Software Upgrade, Software Combined Release and/or Software Enhancement to
interoperate and be compatible with all such functionality of such prior
Software versions and with all existing in-service Vendor provided Products
already installed in the System; (ii) with respect to all Equipment Upgrades,
and Equipment Combined Releases to the extent of that portion of the Equipment
Combined Release which is the Equipment Upgrade or the use of which by Owner is
not optional without losing the benefit of the Equipment Upgrade (for purposes
of this Contract, a "New Equipment Release" means collectively the Equipment
Upgrade and such non-optional portion of the Equipment Combined Release), the
ability of the existing infrastructure to remain fully functional in accordance
with and up to the performance levels to which it was performing immediately
prior to the integration with the New Equipment Release, and the ability of the
New Equipment Release to interoperate and be fully compatible with all such
functionality of such existing infrastructure and (iii) with respect to each of
Software Maintenance Releases, Software Upgrades, Software Combined Releases,
Software Enhancements and New Equipment Releases, the ability of such Products
to comply with the existing interfaces to other third party equipment already
deployed in the System and with respect to which Vendor is already in compliance
prior to the introduction of the Software Maintenance Releases, Software
Upgrades, Software Combined Releases, Software Enhancements and New Equipment
Releases.
"Base Station ("BTS")" means the radio Products that handle the
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Owner's PCS radio traffic in a designated cell. The Base Station includes all
amplification, modulation, synchronization and other circuitry required to
process a radio signal.
"Base Station Controller ("BSC")" means the radio Products that
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control the Owner's PCS radio traffic.
"beta testing" means pre-launch testing conducted by Owner in
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respect of which no payment from customers is made to the Owner for the services
provided in connection therewith.
"Business Day" means any day of the year other than a Saturday,
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Sunday or a United States Federal holiday.
"Capacity Guarantee" is defined in Section 16.3.
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"Certificate of Final Acceptance" is defined in subsection
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10.1(f).
"Certificate of Substantial Completion" is defined in subsection
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10.1(d).
"Change Orders" is defined in subsection 11.1.
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"Chattanooga Replacement" is defined in subsection 2.2.
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"Claim" is defined in subsection 15.2.
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"Claim Notice" is defined in subsection 15.2.
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"Commercial Service" means, with respect to a System, the
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commercial operation of a System, exclusive of operation for purposes of
determining compliance with this Contract or beta testing, whether or not
revenue is actually being generated.
"Commercial Service Launch Date" means, with respect to a
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System, the date stated on Exhibit S, but in no event prior to the activation of
[*] of the planned number of cell sites stated for such System on Exhibit S,
unless otherwise agreed by the parties.
"Construction Services" means the physical construction of the
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cell Sites, MSC Sites and other related System Sites, for which work shall be
done by the Owner, Owner Subcontractor, Vendor, Subcontractor(s) or Agency
Subcontractor(s), as designated by Owner.
"Construction Management Services", "Construction Management"
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means the Work to be performed by the Owner, Owner Subcontractor, Vendor, Agency
Subcontractor or Subcontractor, and certain obligations of the Owner, as
described in Exhibit E-2.
"Contract" means this System Equipment Purchase Agreement,
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together with all Exhibits, Schedules, Specifications and all amendments,
modifications and supplements thereto.
"Contract Term" means the period commencing on the Effective
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Date of the original Contract, September 20, 1999, and ending five (5) years
there from, unless terminated earlier in accordance with the terms and
conditions hereof, or unless extended by the mutual written consent of the
parties hereto.
"Core System" means that collection or aggregation of Products
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which are designed by Vendor to operate as a functional entity in accordance
with the applicable Specifications or otherwise represented by Vendor in its
published information as being capable of operating as a functional entity. By
way of example and not limitation, a circuit pack or connecting cable which is
an OEM item, and which forms part of the 5 ESS(R) switch would form part of a
Core System, whereas a call center system or voice mail system, though it
interfaces with the System, would not be part of a Core System, since various
call center systems or voice mail systems manufactured by several alternate
manufacturers could be utilized by Owner, and operated functionally independent
of the selection of Vendor's Equipment for the MSC.
"Covered PoP" means, with respect to a System, the population
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contained within the footprint of the System at the time of Commercial Service
launch. Covered PoPs shall be calculated using a mutually agreed RF design tool
(i.e., CE4, Planet) using mutually agreed block level 1990 US Census based
population databases, or the most recent US
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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census database available in the public domain at the time of the Commercial
Service Launch Date. For purposes of the covered PoPs calculation, the Rural
In-Vehicle link budget threshold (144.8 dB path loss) shall define the coverage
area of the System. Specifically, for all areas within the System with a path
loss less than 144.8 dB, that area shall be multiplied by the population density
in that area to derive the effective system covered PoPs.
Owner and Vendor shall have the right to independently calculate Covered PoPs to
ensure consistency in the reported Covered PoPs. In the event the calculations
differ by more than two percent (2%), and both calculations are reasonably and
correctly completed in accordance with this definition, both parties will work
together to identify differences in calculation methodologies and results. If
the calculations differ by less than two percent (2%), the agreed Covered PoPs
within a System shall be the mathematical average of the reasonable and correct
calculations of Owner and Vendor.
"Customer Price Guide" means the Vendor's published price
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notification release or releases furnished for the purpose of communicating to
customers the Vendor's list pricing or pricing related items applicable to
Products.
"Customer Technical Support Organization Services", "Customer
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Technical Support Services", "CTSO", "CTSS" means when used in relation to
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warranty or non-warranty support services, the Work to be provided by Vendor,
and certain obligations of the Owner, as described in Exhibit N and B-5.
"Defects and Deficiencies", "Defects or Deficiencies" or
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"Defective" means any one or a combination of the following items or other
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items of a substantially similar nature:
(a) when used with respect to the performance of Services, that
such Services are not provided in a careful and workmanlike manner and in
accordance with the Specifications, using material which is free from
defects;
(b) when used with respect to structures, materials or Products,
that such items (i) are not new and of good quality and free from defects
in materials and workmanship, or (ii) do not conform to the Specifications,
or (iii) with respect to Software, that such Software does not process
dates correctly; or
(c) with respect to all other Work, that the same (i) are not
free of defects in workmanship and materials, or (ii) do not conform to the
Specifications.
"Discontinued Products" is defined in subsection 12.1.
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"Documentation" means the Operating Manuals, the Maintenance and
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Instruction Manuals, the Training Manuals, the "as-built" Site parameters and
all other documentation necessary for the operation of the System, the
Chattanooga Replacement, any Expansions and/or any material part thereof.
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"Dollars" or "U.S. $" or "$" means the lawful currency of the
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United States of America.
"Equipment" means all equipment, hardware and other items of
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personal property (including, without limitation, any Documentation furnished
hereunder in respect thereof) which are required to be furnished by the Vendor
in accordance with the terms and conditions of this Contract, including repair
and replacement parts.
"Equipment Combined Release" is defined in subsection 14.2.1.
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"Equipment Enhancements" means modifications or improvements
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made to the Equipment which improve the performance or capacity of such
Equipment (sometimes referred to by the Vendor as its "Class B" changes).
"Equipment Upgrade" means a change or modification in any
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delivered Equipment which fixes or otherwise corrects faults, design
shortcomings or shortcomings in meeting the Specifications, required to correct
defects of a type that result in inoperative conditions, unsatisfactory
operating conditions, or which is recommended to enhance safety (sometimes
referred to by the Vendor as its "Class A" changes).
"Expansions" means any additional Products ordered by the Owner
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from the Vendor, which may include growth to existing Systems and additional
Products, Services and Systems.
"FCC" means the Federal Communications Commission.
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"Final Acceptance" means, with respect to any System, the date
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the Owner signs the Certificate of Final Acceptance.
"Fit" means physical size or mounting arrangement (for example,
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electrical or mechanical connections).
"Fixed Network Design Services" means the Work to be provided by
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Owner, Owner Subcontractor, Vendor or Subcontractor, and certain obligations of
the Owner, as described in Exhibit E-8.
"Force Majeure" is defined in Section 17.
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"Form" means physical shape.
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"Function" means Product features and performance, or with
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respect to other items, the features and performance of such items.
"Funds" is defined in subsection 2.10.
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"Governmental Entity" means the United States federal government
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or any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Substantial Completion Date" means, a) with respect
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to the Chattanooga and Nashville System and all other Systems not listed on
Exhibit S, the date by which Substantial Completion must be achieved by the
Vendor. The Guaranteed Substantial Completion Date is determined based on the
Site that is identified by the Owner in writing to be the last Site to be
included in the definition of such System (the "Last Site"). If the Owner has
issued a Purchase Order to the Vendor to proceed with Site Preparation with
respect to the Last Site, the Guaranteed Substantial Completion Date shall be
the date which is sixty (60) calendar days after the later of the date of such
Purchase Order or the date that written notice identifying the Last Site was
issued, and b) for Systems listed on Exhibit S, the Guaranteed Substantial
Completion Date shall be the Guaranteed Substantial Completion date listed on
Exhibit S for each Market.
Notwithstanding the above, if the Owner has performed the Site Preparation
activities with respect to the Last Site, the Guaranteed Substantial Completion
Date shall be the date which is thirty (30) calendar days after the date the
Owner issues a Site Preparation Substantial Completion Certificate with respect
to the Last Site to the Vendor; provided that in all of the foregoing
circumstances, the Guaranteed Substantial Completion Date shall be delayed to a
date mutually acceptable to Vendor and Owner, acting reasonably, in the event
that:
i. Owner has not satisfied its obligations, if any, for Site
Preparation for the installation of the switch by at least twelve
(12) weeks prior to the Substantial Completion Date (in this case
the parties agree that the period of delay shall be equal to the
number of days that the Owner's Site Preparation obligations, if
any, are delayed beyond such date which is twelve (12) weeks prior
to the Substantial Completion Date); or
ii. extreme weather and other unusual environmental conditions beyond
Vendor's reasonable control delays Vendor's completion of
Substantial Completion activities (in this case the parties agree
that the period of delay shall be equal to the period of time
associated with the duration of such extreme or unusual
condition(s)); or
iii. Vendor is not provided with all necessary and reasonable access to
the System and each Site; or
iv. Owner Subcontractor or Agency Subcontractor, none of which have
direct contract privity with Vendor, cause delays beyond Vendor's
control or interfere with Vendor's Work.
Owner shall also involve Vendor through all stages of the Site Acquisition
process. In all cases, Owner shall be responsible for the provisioning of
backhaul facilities required at
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all Sites. Such provisioning must be completed prior to the start of equipment
integration by the Vendor at each site.
"Hazardous Materials" means material designated as a "hazardous
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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
Communication Standard (29 CFR 1910.1200).
"Initial Period" is defined in Section 10.1(f).
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"Initial Software Features" means those software features
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contained in Vendor's standard base generic software releases together with
those additional optional software features listed in Exhibit C.
"Installation and Integration" is defined in Exhibit F.
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"Intellectual Property Rights" is defined in subsection 15.2.
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"Interoperability" means the ability of the Products to operate
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with other Products and to operate with and within a System, all in accordance
with the Specifications.
"Liquidated Damages" is defined in subsection 16.1.
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"List Price" means Vendor's published "network wireless systems
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price reference guide" or other price notification releases furnished by Vendor
for the purpose of communicating Vendor's prices or pricing related information
to Vendor's customers; however this does not include firm price quotation.
"Losses" means any claims, demands, suits, proceedings, causes
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of action, damages, costs, expenses, liabilities, reasonable attorneys' fees,
and amounts paid in settlement.
"Major Outage" means the cessation of operation of a System or
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System Element caused by a Defect or Deficiency attributable solely to Vendor
which has a material adverse impact on Owner's ability to operate or maintain
such System, render billings to Owner's subscribers, or which causes a material
interruption in Owner's ability to continue to furnish or offer service
functionalities and features to such subscribers. In addition, the following
capacity and/or coverage impairment conditions shall be considered a "Major
Outage":
(i) Any impairment caused by a Defect or Deficiency
attributable solely to Vendor that has the effect of reducing by
greater than [*] the number of traffic channel resources available in
the System for access by Owner's subscribers; and/or
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(ii) Any impairment caused by a Defect or Deficiency
attributable solely to Vendor that has the effect of rendering greater
than [*] of the equipped antenna sectors in the System unable to
process origination, termination or hand-off requests; or that reduces
the forward channel power of more than [*] of the equipped sectors in
the System by greater than [*]; and/or
(iii) The persistent occurrences of an impairment
referenced in paragraphs (i) or (ii) above which, although each
occurrence falls below the [*] threshold, each occurrence exceeds a
threshold of greater than [*] of the applicable metric set forth
above, and the total number of such occurrences is greater than [*]
events during the Initial Period;
provided, however, that the foregoing definition shall only be applicable for
purposes of this Contract for the issuance of a Certificate of Final Acceptance
at the end of the Initial Period.
"Maintenance and Instruction Manuals" means the manuals listed
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in Exhibit P and prepared by the Vendor and delivered to the Owner pursuant to
Section 9.
"Manufacturing" means the fabrication of the Equipment.
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"Market" means a geographic area for which Owner owns a license
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and for which Owner desires to purchase PCS systems .
"Material Adverse Effect" is defined in subsection 24.2(b).
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"Milestones" means the performance milestones set forth in the
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Exhibits.
"Minimum Purchase Commitment" is defined in subsection 5.1(a).
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"MSC" means a mobile switching center and usually consists of a
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Lucent 5 ESS-2000(R) AnyMedia switch, an operations and management platform and
the Executive Cellular Processor Complex which includes call processing, system
intelligence handling and feature control functionality.
"Network Operations Center Design Services" means those Services
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as described in Exhibit E-9.
"Network Planning" means Work related to the design and
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engineering of a System, including frequency clearance.
"Network Reliability Center", "Network Reliability Services"
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means the remote monitoring and surveillance Work to be performed by Vendor or
Subcontractor, and certain obligations of the Owner, as described in Exhibit H.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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"Notice of Completion of Installation and Integration
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Certificate" means the certificate issued by Vendor certifying that all
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installation and integration activities for a System specified in Exhibit F are
substantially complete, and that the only remaining Work to be completed by
Vendor consists of Punch List items to be completed prior to Final Acceptance.
"Operating Affiliates" means a subsidiary or affiliate of Owner
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which is authorized to operate a PCS System and which places Purchase Orders
pursuant to this Contract.
"Operating Manuals" means the operating and configuration
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manuals listed in Exhibit P to be prepared by the Vendor and delivered to the
Owner pursuant to Section 9 containing detailed procedures and specifications
for the operation of any System, the Chattanooga Replacement, any Expansions
and/or any part thereof including, but not limited to, BTS manuals and BSC
manuals.
"Operator" shall mean the Owner, a Related Operator, an
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Operating Affiliate or any independent contractor appointed by the Owner, which
operates a System.
"Optimization Services" means the RF optimization services
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described on Exhibit G.
"Optional Software Features" means Software features for PCS
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Products available to Owner on a optional, separate fee basis.
"Owner Subcontractor" means a contractor, vendor, supplier,
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licensor or other Person, having a direct or indirect contract with the Owner or
with any other Subcontractor of the Owner who has been hired to assist the Owner
in the performance of its obligations under this Contract.
"PCS" means personal communication services authorized by the
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Federal Communications Commission.
"Person" means an individual, partnership, limited partnership,
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corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental Entity or other
entity of whatever nature.
"Pre-Deployment Services" means the Work to be provided by
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Owner, Owner Subcontractor, Vendor or Subcontractor, and certain obligations of
the Owner, as described in Exhibit E-5.
"Products" means the collective reference to the Equipment and
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the Software provided by the Vendor or any Subcontractor.
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"Program Management", means the Work to be performed by Owner,
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Owner Subcontractor, Vendor or Subcontractor, and certain obligations of the
Owner, as described in Exhibit E-7.
"Proprietary Information" is defined in subsection 26.18.
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"Punch List" means that list prepared in conjunction with any
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certificate or notice which contains one or more immaterial non-service-
affecting items which have not been fully completed as of the date of the
accompanying certificate; provided that such incomplete portion of the Work
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shall not, during its completion, materially impair the normal daily
operation of a System in accordance with the Specifications.
"Purchase Order" means a written notice given by the Owner to
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the Vendor in compliance with the provisions of this Contract specifying the
Products, Services or other items of Work that the Vendor is authorized to
supply or commence in compliance with the terms of this Contract.
"Purchase Order Date" means the date on which any Purchase Order
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is issued by the Owner in accordance with the terms of this Contract.
"Related Operator" means an entity (other than Owner) which
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holds a license issued by the FCC permitting the holder to provide wireless PCS
services, which has entered into a contract with Owner to provide management
responsibilities with respect to the operation of such a service, which may
include agreements pursuant to which Owner resells to or shares with such entity
capacity on the Owner's System as, for example, when the Related Operator's cell
site equipment is interconnected with the Owner's MSC.
"RF" means radio frequency.
--
"RF Design Services" means the Work to be performed by Owner,
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Owner Subcontractor, Vendor or Subcontractor, and certain obligations of the
Owner, as described in Exhibit D.
"RF Optimization Services" means the Work to be performed by
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Owner, Owner Subcontractor, Vendor or Subcontractor, and certain obligations of
the Owner, as described in Exhibits G.
"RTM License" is defined in subsection 13.6.
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"RTU License" is defined in subsection 13.1.
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"Services" means the collective reference to all of the services
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to be furnished by the Vendor as part of the Work including, but not limited to
Pre-Deployment Services, RF Design Services, Construction Management Services,
Site Acquisition Services, Architecture and Engineering Services, Program
Management Services, engineering, network planning, construction,
interoperability, supply, delivery, installation,
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testing, training, repair, maintenance, technical and other support services,
and any and all other services to be furnished by the Vendor as part of the Work
in accordance with the terms of this Contract.
"Site" means the physical location of a System Element Facility.
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"Site Acceptance Certificate" means a document submitted by the
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Vendor to the Owner and signed by an authorized representative of the Owner and
an authorized officer of the Vendor stating that, in accordance with the
requirements of this Contract, the Vendor has successfully completed all Site
Acceptance Tests with respect to the Sites specified therein.
"Site Acceptance Tests" means the collective reference to the
---------------------
performance and reliability demonstrations specified in the Exhibits to
determine whether a site meets the Specifications and other requirements of this
Contract.
"Site Acquisition" means the activities to be performed by
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Owner, Owner Subcontractor, Agency Subcontractor, Vendor, or Subcontractor, and
certain obligations of the Owner and/or its subcontractors described more fully
in Exhibit E-5.
"Site Acquisition Substantial Completion" means, with respect to
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any System, the point at which the Owner shall have (i) acquired, by purchase,
lease or otherwise, rights to a sufficient number of Sites in the judgment of
the Owner, and (ii) that, with respect to all Sites within such System, all land
use and/or lease requirements necessary to be satisfied prior to the start of
construction activities in accordance with Applicable Laws have been satisfied.
"Site Acquisition Substantial Completion Date" means with
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respect to any System, the date on which the Owner shall have achieved Site
Acquisition Substantial Completion.
"Site Construction Services" means, when provided by Vendor,
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those Services as described in Exhibit E-3.
"Site Preparation" means the demolition, construction and
----------------
renovation work (for example, roads, grading, fencing and structural
improvements, including, but not limited to, any buildings, towers and
commercial power) and the preparation of co-location sites necessary for the
installation of Equipment or the operation of the System, Chattanooga
Replacement, Expansions and/or any part thereof.
"Site Preparation Substantial Completion" means the completion
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of all Site Preparation with respect to a Site except for Punch List items.
"Site Preparation Substantial Completion Certificate" is defined
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in Section 10.1(b).
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"Software" means (a) the computer software licensed to the Owner
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pursuant to the terms of this Contract, (b) any Software Enhancements, Software
Maintenance Releases, Software Combined Releases and Software Upgrades, and (c)
any Documentation furnished hereunder in respect of clauses (a) and/or (b) of
this definition.
"Software Combined Release" means a Software Upgrade which is at
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any time combined with any Software Enhancement.
"Software Enhancements" means modifications or improvements made
---------------------
to th Software relating to Products which improve performance, capabilities or
capacity of the Software revision level with which it is associated or which
provide additional functions to the Software. A Software Enhancement may also
correct defects in earlier versions of the Software.
"Software Maintenance Release" means issues of Software which correct
----------------------------
defects in preceding versions of Software.
"Software Upgrades" means periodic updates to the Software
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issued by the Vendor to the Owner under Warranty and Software maintenance
obligations which add to, improve or enhance existing Software features and
capabilities involving more extensive changes to the underlying Source Code or
the user interface than is the case with Software Enhancements. A Software
Upgrade may also correct defects in the Software, or otherwise to correct
shortcomings in the Software.
"Source Code" means any version of Software incorporating high
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level or assembly language that generally is not directly executable by a
processor.
"Spares" is defined in Exhibit K.
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"Specifications" means the collective reference to the
--------------
specifications and performance standards (including all of the Services and
Products) as set forth in this Contract, including but not limited to Exhibit I,
Exhibit J, Exhibit M; provided that (i) the Specifications shall be deemed to
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include a requirement that all of the Products and Services shall be in
accordance with ANSI standards except when otherwise stated in a specific
Exhibit or otherwise agreed by the parties, and (ii) with respect to Services
and Products for which specifications and performance standards are not provided
and listed in a specific Exhibit, the term "Specifications" shall refer to
Vendor's published specifications in respect thereof.
"Spectrum Clearing and Microwave Relocation Services" means,
---------------------------------------------------
when provided by Vendor, those Services as described in Exhibit E-6.
"Subcontractor" means a contractor, vendor, supplier, licensor
-------------
or other Person, having a direct or indirect contract with the Vendor or with
any other Subcontractor of the Vendor who has been hired to assist the Vendor in
the performance of its obligations under this Contract.
13
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"Substantial Completion" means the time at which the Owner signs
----------------------
the Certificate of Substantial Completion.
"System" means the collection of Sites and Equipment in a
------
defined Market area which allows Owner to provide PCS within such defined Market
area (whether or not the collection of Sites and Equipment in such defined
Market area includes a dedicated MSC or uses a remote MSC within another defined
Market area) identified by the Owner to the Vendor in writing as collectively
comprising a System.
"System Element" means the Products required to perform radio,
--------------
switching and/or system element functions for a System, any Expansions and/or
the Chattanooga Replacement.
"System Element Facility" means the structures, improvements,
-----------------------
foundations, towers, and other facilities necessary to house or hold any System
Element and any related Products to be located at a particular location.
"Taxes" is defined in subsection 5.2.
-----
"Training" is defined in subsection 9.4.
--------
"Vendor Developments" is defined in subsection 14.3.1.
-------------------
"Vendor Financing" means a loan to be provided by the Vendor to
----------------
the Owner pursuant to documentation acceptable to both parties.
"Warranty" means any one or more of the Equipment and Services
--------
Warranty Expansions Warranty, Software Warranty, Software Backwards
Compatibility Warranty, Equipment Backwards Compatibility Warranty, Compliance
Warranty and the Year 2000 Warranty.
"Warranty Period" is defined in Section 18.1.
---------------
"Work" means the furnishing of Products hereunder, and the
----
performance of work, engineering services, installation services and all other
related activities and obligations required to be performed by the Vendor
pursuant to this Contract. Any reduction in the Work to be performed on a System
in a Market not listed on Exhibit S shall be at Owner's direction.
1.2 Other Definitional Provisions. (a) When used in this
-----------------------------
Contract, unless otherwise specified therein, all terms defined in this Contract
shall have the defined meanings set forth herein. Terms defined in the Exhibits
are deemed to be terms defined herein; provided that in the case of any terms
-------- ----
that are defined both in this Contract and/or an Exhibit, the
definitions contained in this Contract shall supersede such other definitions
for
14
<PAGE>
all purposes of this Contract; provided further, that definitions contained in
-------- -------
any Exhibit shall control as to such Exhibit.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Contract refer to this Contract as a whole and
not to any particular provision of this Contract and Section, subsection,
schedule and exhibit references are to this Contract unless otherwise specified.
Reference herein to Section shall mean any and all subsections thereof.
(c) The meanings given to terms defined in this Contract are
applicable to both the singular and plural forms of such terms.
SECTION 2. SCOPE OF WORK, RESPONSIBILITIES AND PROJECT
MILESTONES
2.1 Scope of Work. During the Contract Term and in accordance
-------------
with Purchas Orders issued to Vendor from time to time, the Vendor shall
engineer, design, plan, manufacture, construct, install, test and perform all
Work. The terms of this Contract shall also apply to Purchase Orders issued by
Operating Affiliates and by Owner, for and on behalf of its Related Operators,
provided that in each case, the Purchase Orders are made pursuant to and
incorporate by reference the terms of this Contract. The Vendor shall be
responsible for providing in accordance with the terms of this Contract any and
all items and services which are expressly included by the terms of this
Contract or in the Exhibits. Owner shall be permitted under the terms of this
Contract to purchase any additional Products and Services manufactured or
provided by Vendor or Vendor's subsidiaries or affiliates. Additional exhibits
may be added to this Contract in order to address Product specific
specifications or other requirements as mutually agreed to by the parties. The
Vendor shall furnish all labor, materials, tools, transportation and supplies
required to complete its obligations in accordance with this Contract.
In instances where Purchase Orders are placed by Owner for or on behalf
of a Related Operator, Owner shall be considered the purchaser for purposes of
placing all orders, addressing invoices and the obligation of payment. Owner
agrees to be obligated hereunder with respect to all payments which become due
hereund er with respect to Purchase Orders placed by it for or on behalf of a
Related Operator, including but not limited to all payments for Products. In
addition, Owner shall be considered the purchaser for purposes of passage of
title and risk of loss with regard to Products and Software which are delivered
to it, even though such are subsequently re-delivered to another entity.
The parties agree that Vendor's affiliates will sell Products and
Services to affiliates of Owner (including Leap Wireless and its subsidiaries
and affiliates) for deployment in markets outside of the United States on terms
and conditions substantially the same as the terms and conditions set forth
herein (as this Contract may be amended from time to time); provided, however,
that the parties acknowledge and agree that Vendor carries on business outside
of the United States through affiliates and local country partners, and that
certain
15
<PAGE>
modifications will be required to sales to Owner affiliates outside of the
United States on a case by case basis to accommodate different business
environments, including different regulatory requirements, freight, taxes,
import duties and the cost of providing Services in a jurisdiction outside of
the United States. The parties further acknowledge and agree that Vendor will
not be the contracting party for business conducted outside of the United
States. For purposes of this paragraph: (a) an affiliate of a party means a
Person that directly or indirectly controls, is controlled by or is under common
control with such party, and (b) control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. Controlled and controlling shall have correlative meanings.
2.2 Plan for Chattanooga. In addition to its obligations
--------------------
specified in Section 2.1, upon the terms and conditions set forth herein, the
Vendor shall provide those Products and Services described in Exhibit B-3 to the
Owner in order to provide for the technology swap for the System in Chattanooga,
Tennessee (the "Chattanooga Replacement").
-----------------------
2.3 Site Acquisition. The Vendor may be requested to provide
----------------
certain Site Acquisition Services in accordance with the terms of Exhibit E-5,
however Owner shall acquire all Sites. As the Site Acquisition progresses, the
Vendor agrees to alter regularly the engineering plan to determine a new search
ring or rings to take into account any changes or modifications requested by the
Owner due to the inability to acquire sufficient rights to a location which
could constitute a Site in a timely or economic manner; provided that all such
alterations shall be considered by the parties and addressed pursuant to the
Change Order provisions described in Section 11 below. When making changes to
the RF engineering plan, the Vendor shall take into account the Site Acquisition
already completed.
2.4 Expansions. During the five (5) year period commencing on
----------
the Effective Date, the Owner may, from time to time, order Expansions from the
Vendor, subject to the provisions of Section 12. The price and terms of such
Expansions shall be as set forth in Exhibits B and B-1 through and including B-8
(collectively, the "B Exhibits").
----------
2.5 Review of Contract. Each party has examined in detail and
------------------
carefully studied and compared the Contract with all other information furnished
by the other party and has promptly reported to the other party any material
errors, inconsistencies or omissions so discovered or discovered by any of its
Subcontractors.
2.6 Eligibility under Applicable Laws and Applicable Permits.
--------------------------------------------------------
The Vendor shall be responsible for ensuring that the Vendor and its
Subcontractors are and remain eligible under all Applicable Laws and Applicable
Permits to perform the Work under this Contract in the various jurisdictions
involved including, to the extent that Vendor will be responsible for
construction for any particular component of the Work, all such construction
will be done in accordance with all applicable Federal Communications Commission
requirements. Each of the Owner and the Vendor shall be responsible for
obtaining and maintaining in full force and effect the Applicable Permits listed
as its responsibility in the
16
<PAGE>
applicable Exhibits. Owner shall use its best efforts to 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 PCS System.
2.7 Further Assurances. The Vendor shall execute and deliver all
------------------
reasonable further instruments and documents, and will, in good faith, consider
all reasonable requests for further action, including, but not limited to,
assisting the Owner in filing notices of completion with the appropriate state
and local Governmental Entity, that may be necessary or that the Owner may
reasonably request in order to enable the Owner or the Vendor to complete
performance of the Work or to effectuate the purposes or intent of this
Contract. All such requests shall be addressed pursuant to the Change Order
procedures described below in Section 11.
2.8 Liens and Other Encumbrances. (a) The Vendor covenants and
----------------------------
agrees, subject to Vendor's receipt from Owner of full payment in respect
thereof, to:
(i) protect and keep free all Systems, Expansion,
Chattanooga Replacement and/or any and all interests and estates therein
acquired from the Vendor, and all improvements and materials now or
hereafter placed thereon under the terms of this Contract, from any and all
claims, liens, charges or encumbrances of the nature of mechanics, labor or
materialmen liens or otherwise arising out of or in connection with
performance by any Subcontractor, including services or furnishing of any
materials hereunder, and to promptly have any such lien released by bond or
otherwise; and
(ii) give notice of this subsection to each
Subcontractor before such Subcontractor furnishes any labor or materials
for any System.
(b) If any laborers', materialmens', mechanics', or other
similar lien or claim thereof is filed by any Subcontractor, the Vendor shall
cause such lien to be satisfied or otherwise discharged, or shall file a bond in
form and substance satisfactory to the Owner in lieu thereof within ten (10)
Business Days of the Vendor's receipt of notice of such filing. If any such lien
is filed or otherwise imposed, and the Vendor does not cause such lien to be
released and discharged forthwith, or file a bond in lieu thereof, then, without
limiting the Owner's other available remedies, the Owner has the right, but not
the obligation, to pay all sums necessary to obtain such release and discharge
or otherwise cause the lien to be removed or bonded to the Owner's satisfaction
from funds retained from any payment then due or thereafter to become due to the
Vendor.
(c) The Owner reserves the right to post or place within any
System notices of non-responsibility or to do any other act required by
Applicable Law, to exempt the Owner from any liability to third parties by
reason of any work or improvements to be performed or furnished hereunder;
provided that failure by the Owner to do so shall not release or
-------- ----
discharge the Vendor from any of its obligations hereunder.
17
<PAGE>
2.9 Duty To Inform Itself Fully; Waiver of Defense. (a) Each
----------------------------------------------
party shall be deemed to have notice of and to have fully examined and approved
the Specifications, the Exhibits and all other documents referred to herein, and
all drawings, specifications, schedules, terms and conditions of this Contract,
regulations and other information in relation to this Contract and/or any
amendments, modifications or supplements thereto at any time on or after the
Effective Date and to have fully examined, understood and satisfied itself as to
all information of which it is aware and which is relevant as to the risks,
contingencies and other circumstances which could affect this Contract and in
particular the installation of any System or any part thereof.
2.10 Special Provisions Regarding Vendor Financing. The
---------------------------------------------
financing made available to Owner pursuant to separate financing agreements will
provide Owner with an available source of funds ("Funds") for purchases of items
-----
other than the Products and Services specified hereunder for the Systems.
With respect to the purchase of any additional items to be used in connection
with the Systems, or to be used in any additional market area for which Owner
obtains PCS licenses utilizing the Funds, or the purchase of any other items
utilizing the Funds, Vendor shall be treated as a preferred vendor and will be
provided the first opportunity to provide such additional items in accordance
with the terms of this Contract, provided such items conform to the
specifications and are competitively priced . In the event that Vendor does not
manufacture such an item equivalent in Form, Fit and Function, or if Vendor
manufactures the item equivalent in Form, Fit and Function but does not offer it
to Owner at a competitive market price, Owner shall be permitted to purchase
such items from third parties utilizing the Funds, subject to the limitations
set forth in the Vendor Financing. In addition, Owner may utilize the Funds to
purchase services from third parties for a System, provided however, that the
total amount of such Funds used to purchase such services shall not exceed the
limitations set forth in the Vendor Financing.
SECTION 3. PURCHASE ORDERS AND SCHEDULES
3.1 Purchase Orders. The Owner and any Operating Affiliate may
---------------
deliver Purchase Orders to the Vendor at any time and from time to time during
the Contract Term. Such Purchase Orders shall be sent to the Vendor either by
certified mail, electronic transmission or another mutually acceptable manner to
the address specified in Exhibit L of this Contract. All Purchase Orders shall
be governed by the terms and conditions of this Contract, unless otherwise
agreed by the parties in writing. Each Purchase Order shall specify, in
reasonable detail, the Products, Services or other items of Work to be provided
by the Vendor.
3.2 Delivery under the Contract. The Vendor shall complete the
---------------------------
Work specified in each Purchase Order in accordance with the terms and
conditions of this Contract.
3.3 Order Acceptance. All Purchase Orders submitted by Owner
----------------
shall be deemed to incorporate and be subject to the terms and conditions of
this Contract unless otherwise agreed in writing. All Purchase Orders, including
electronic orders, shall contain
18
<PAGE>
the information necessary for Vendor to fulfill the order. All schedules and
requested dates are subject to Vendor's concurrence, provided that if orders are
made within the agreed to lead times specified in Exhibit L, Vendor shall not
withhold its concurrence to the requested dates. No provision or data on any
Purchase Order or contained in any documents attached to or referenced in any
Purchase Order, or any subordinate document (such as shipping releases), which
is inconsistent with the terms of this Contract shall be binding, except data
necessary for Vendor to fill the order. All such other data and provisions are
hereby rejected. Electronic orders shall be binding on Owner notwithstanding the
absence of a signature, provided that the parties have implemented a mutually
acceptable electronic order process and such orders deemed to be binding have
been issued by Owner and accepted by Vendor in accordance with the process
agreed upon by the parties. Order acceptance provisions, together with
delivery schedules and intervals and forecast requirements are set forth in
Exhibit L.
While it is Vendor's objective to provide Owner with an acknowledgment
of each order received, Owner shall advise Vendor to the extent that Owner
becomes aware of any missing or late notifications to ensure that the order has
not been lost.
Changes made by Owner to an accepted Purchase Order shall be treated as
a separate order unless the parties expressly agree otherwise. If any such
change affects Vendor's ability to meet its obligations under the original
Purchase Order, any price, shipment date, or completion date quoted by Vendor
with respect to such original order is subject to change and shall be addressed
pursuant to the Change Order provisions below in Section 11.
3.4 Forecasts. Owner shall provide to Vendor regular forecasts
---------
of Owner's annual Product and Services needs. If the quantities ordered are more
than 25% greater than forecast quantities, Vendor shall be permitted a
reasonable extension of time to fulfill such orders and achieve the Milestones
required of Vendor hereunder.
3.5 Deployment Plans and Milestones. The deployment plans and
-------------------------------
intervals, together with the key Milestones, order intervals, in respect of each
System, are set forth in Exhibit L and in Exhibit S.
3.6 Inventory Control and Bar-coding. Vendor shall, at no
--------------------------------
additional charge, pack and mark shipping containers in accordance with its
standard practices for domestic shipments. Where in order to meet Owner's
requests, Vendor packs and/or is required to mark shipping cartons in accordance
with Owner's specifications, Vendor shall invoice Owner additional charges for
such packing and/or marking. Vendor 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 applicable for
identification in accordance with Vendor's marking specifications (for example,
model/serial number and month, year of manufacture).
19
<PAGE>
SECTION 4. SUBCONTRACTORS
4.1 Subcontractors. The Vendor may subcontract any portion of
--------------
its obligations under this Contract, but no such subcontract shall relieve
Vendor from primary responsibility and liability for the performance of Vendor's
covenants and obligations under this Contract. Regardless of whether or not the
Vendor obtains approval from the Owner or a Subcontractor or whether the Vendor
uses a Subcontractor recommended by the Owner, use by the Vendor of a
Subcontractor shall not, under any circumstances: (i) give rise to any claim by
the Vendor against the Owner if such Subcontractor breaches its subcontract or
contract with the Vendor; (ii) give rise to any claim by such Subcontractor
against the Owner; (iii) create any contractual obligation by the Owner to the
Subcontractor; (iv) give rise to a waiver by the Owner of its rights to reject
any Defects or Deficiencies or Defective Work; or (v) in any way release the
Vendor from being solely responsible to the Owner for the Work to be performed
under this Contract.
4.2 The Vendor's Liability. The Vendor is responsible for all of
----------------------
its obligations under this Contract, including the Work, regardless of whether a
subcontract or supply agreement is made or whether the Vendor relies upon any
Subcontractor to any extent. The Vendor's use of Subcontractors for any of the
Work shall in no way increase the Vendor's rights or diminish the Vendor's
liabilities to the Owner with respect to this Contract, and in all events,
except as otherwise expressly provided for herein, the Vendor's rights and
liabilities hereunder with respect to the Owner shall be as though the Vendor
had itself performed such Work. The Vendor shall be liable for any delays caused
by any Subcontractor as if such delays were caused by the Vendor.
4.3 No Effect of Inconsistent Terms in Subcontracts. The terms
-----------------------------------------------
of this Contract shall in all events be binding upon the Vendor regardless of
and without regard to the existence of any inconsistent terms in any agreement
between the Vendor and any Subcontractor whether or not and without regard to
the fact that the Owner may have directly and/or indirectly had notice of any
such inconsistent term.
4.4 Assignability of Subcontracts to Owner. Vendor shall use
--------------------------------------
reasonable efforts to have each agreement between the Vendor and a Subcontractor
contain a provision stating that, in the event that the Vendor is terminated for
cause, convenience, abandonment of this Contract or otherwise, (i) each
Subcontractor shall continue its portion of the Work as may be requested by the
Owner and (ii) such agreement permits assignment thereof without penalty to the
Owner and, in order to create security interests, to third parties designated by
Owner, in either case at the option of the Owner and for the same price and
under the same terms and conditions as originally specified in such
Subcontractor's agreement with the Vendor.
4.5 Removal of Subcontractor or Subcontractor's Personnel. The
-----------------------------------------------------
Owner has the right at any time to request removal of a Subcontractor and/or any
of a Subcontractor's personnel from Work on the System upon reasonable grounds
and reasonable prior notice to Vendor. Such request (a "Request for Removal")
shall be in writing and shall specify the Owner's reasoning . The Vendor
promptly shall issue a written response to any such
20
<PAGE>
Request for Removal, specifying the reasoning for its disagreement or agreement,
as the case may be, with the reasoning contained in the Request for Removal. If
the parties fail to agree, this matter shall be handled in accordance with the
dispute resolution procedures in Section 23. The exercise of such right by the
Owner shall have no effect on the provisions of subsections 4.1 and 4.2.
4.6 Subcontractor Insurance. The Vendor shall require its Subcontractors to
-----------------------
obtain, maintain and keep in force, during the time they are engaged in
providing Products and Services hereunder, insurance coverage of the types and
levels customary in the industry (provided that the maintenance of any such
Subcontractor insurance shall not relieve the Vendor of its other obligations
pursuant to this Contract). The Vendor shall, upon the Owner's request, furnish
the Owner with evidence of such insurance in form and substance reasonably
satisfactory to the Owner.
4.7 Review and Approval not Relief of Vendor Liability. No inspection,
--------------------------------------------------
review or approval by the Owner permitted under this Contract of any portion of
the Work shall relieve the Vendor of any duties, liabilities or obligations
under this Contract, but nothing contained in this subsection shall be deemed a
bar of any waiver given by the Owner to the Vendor pursuant to and in accordance
with the terms of this Contract.
4.8 Vendor Warranties. Except as otherwise expressly provided in Section 18,
-----------------
the warranties of the Vendor pursuant to Section 18 shall be deemed to apply to
all Work performed by any Subcontractor as though the Vendor had itself
performed such Work and to all Products supplied by any third-party vendor or
other subcontractor as though the Vendor itself had supplied such Products.
Except as otherwise specifically provided in Section 18, the parties agree that
such warranties shall not be enforceable merely on a "pass-through" basis but
that Owner may, but shall not be obligated to, enforce such warranties of any
Subcontractor to the extent that the Owner determines that the Vendor is not
paying and/or performing its warranties; provided that any such election by the
-------- ----
Owner shall not relieve the Vendor from any obligations or liability with
respect to any such warranty.
4.9 Payment of Subcontractors. The Vendor shall make all payments it is
-------------------------
contractually required to make to all Subcontractors (except in the case of
legitimate disputes between the Vendor and any such Subcontractor arising out of
the agreement between the Vendor and such Subcontractor) in accordance with the
respective agreements between the Vendor and its Subcontractors such that no
Subcontractor shall be in a position to enforce any liens and/or other rights
against the Owner, the System, any Products or any part thereof.
4.10 Copies. Subject to any confidentiality obligations insisted upon by
------
third party providers, including Subcontractors, Vendor will use its good faith,
reasonable efforts to provide Owner with any and all relevant agreements,
understandings, subcontracts and other documents pertaining to the provision of
Products or Services by a Subcontractor which Owner may reasonably require in
order for it to be provided with the information necessary to exercise any of
its rights under this Contract.
21
<PAGE>
4.11 Benefit of Subcontracts. In addition to anything else provided for in
-----------------------
this Contract, the Owner shall be entitled to the following benefits and rights
of the Vendor under its contracts with any applicable third-party vendors or
other Subcontractors: all rights to conduct in-house tests, to receive notice of
upgrades and enhancements and to purchase spare parts; provided however, that
-------- -------
the Vendor shall maintain sole responsibility for all obligations and other
duties under all such contracts.
SECTION 5. PURCHASE COMMITMENTS, PRICES AND PAYMENT
5.1 Prices; Minimum Purchases.
-------------------------
(a) Purchase Commitments:
--------------------
(i) Minimum Purchase Commitment. The prices for the
Products, Services and other items of Work for the Contract Term are set
forth in the B Exhibits. The prices for Expansions and the Chattanooga
Replacement, including all Work to be performed in connection with the
Chattanooga Replacement, are also set forth in the B Exhibits. The Owner
agrees that the aggregate amount of all payments to the Vendor pursuant to
Purchase Orders delivered to the Vendor during the Contract Term shall be
not less than Nine Hundred Million dollars ($900,000,000) (the "Minimum
-------
Purchase Commitment").
-------------------
(ii) BTS Purchases. Owner shall purchase and take
-------------
delivery, title and risk of loss of not less than [*] BTSs before September
30, 2000. At Owner's direction, the BTSs shall be shipped to the Site
stated for such BTSs in a Purchase Order or to a staging area or warehouse
arranged for by the Owner. Vendor shall be responsible for all costs
associated with transporting the BTSs to the Site, staging area or
warehouse designated by Owner. Owner shall be responsible for all costs
associated with transporting BTSs from any such staging area or warehouse
to the Site. The warranty period for those BTSs installed in a System at
the time of Substantial Completion shall start as set forth in Section
18.1, and for those BTSs installed in a System subsequent to Substantial
Completion shall start as set forth in Section 18.2. Vendor shall ensure
that each of the [*] BTSs shall reflect the latest engineering change
notice (ECN) (including, but not limited to, all of the class A changes for
all hardware and software) in effect at the time of Installation and
Integration of the BTS. Owner's management and delivery of these [*] BTSs
prior to installation and integration shall not give rise to an event of
Force Majeure as provided in Section 17 of this Agreement.
(iii) Equivalent PoPs. Subject to the terms of this
----
Agreement, Owner agrees to award to Vendor and add to Exhibit S a
sufficient number of additional Markets to comprise a minimum of four
million, three hundred thousand (4,300,000) Covered PoPs during the five
(5) year period commencing on the Effective Date of this Agreement. Owner
shall provide Vendor with forecasts
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
22
<PAGE>
for Products and Services for these additional markets in accordance with
Section 3.4.
(iv) Purchase Commitment for Professional Services.
In exchange for the prices set forth in Exhibit B-7 for Pre-Deployment
Services, Construction Management Services, Site Acquisition Services,
Construction Services and Architecture and Engineering Services and Program
Management Services, Owner shall have Vendor perform, at a minimum, such
Services for Markets 1 through 21 listed on Exhibit S (excluding Kingsport)
and those future markets referenced in Section 5(a)(iii) above.
(b) Prices for Services. The Prices set forth in Exhibit B-7 for
the Services for Pre-Deployment Services, Construction Management Services,
Construction Services, Site Acquisition Services, Architecture and Engineering
Services, and Program Management Services, shall not increase for any Market now
or hereafter awarded to Vendor and listed on Exhibit S prior to December 31,
2001. All other prices for Services listed in the B Exhibits shall not increase
for the Contract Term. The Prices set forth on Exhibit B-7 shall be subject to
negotiation for Services rendered in Markets awarded subsequent to December 31,
2001. The prices for Services in each Market, once established, shall be held
constant until that Market's Certificate of Final Acceptance is approved by
Owner. Pricing for such listed in this subsection and which are subject to price
negotiation after December 31, 2001, shall not increase by greater than five
percent (5%) per annum.
(c) Price Protection. Prices for all Products shall be afforded
the following price protection. [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
23
<PAGE>
(d) Audit. [***]
5.1.1 Volume Purchase Agreement and Discounts. Vendor shall
---------------------------------------
provide Owner with additional discounts for MSC and BTS hardware, including
Spares and Expansions, based upon the total amount of all invoices issued under
this Contract and the total amount of all invoices issued by the Agency
Subcontractor ("Qualified Invoices") as follows:
a) Notwithstanding the terms of this subsection, a discount of
[*] shall apply to all prices in the B Exhibits for all MSCs and BTSs, including
Spares and Expansions, in all Markets when the total amount of Qualified
Invoices is equal to or greater than Four Hundred Seven Million dollars
($407,000,000) (the "[*] Trigger"). A discount of [*] shall apply to all prices
in the B Exhibits for all MSC and BTS, including Spares and Expansions in all
Markets when the total amount of Qualified Invoices is equal to or greater than
Six Hundred Million dollars ($600,000,000) (the "[*] Trigger"), except as
otherwise specified below in this Section 5.1.1.
b) For Markets 13, 16, 18 and 19- listed on Exhibit S and any
markets awarded after Market 22, all MSC and BTS hardware, including Spares and
Expansions, shall receive a [*] discount off of the pricing in the B Exhibits.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
24
<PAGE>
c) For Markets 14, 15, 20 and 22 listed on Exhibit S, all MSC
and BTS hardware, including Spares and Expansions, shall receive a [*] discount
off of the pricing in the B Exhibits. Once Qualified Invoices reach the [*]
Trigger, all purchases in Markets 14 and 15 of MSC and BTS hardware, including
Spares and Expansions, shall receive an additional [*] discount, resulting in a
total [*] discount [*] off of the prices listed in the B Exhibits.
d) For Markets 1-12, 17 and 21 listed on Exhibit S, all MSC and
BTS hardware, including Spares and Expansions, shall receive the pricing set
forth in the B Exhibits, subject to subsection 5.1.1 (a).
Notwithstanding the foregoing, the last [*] BTSs from the [*] BTSs Owner
has agreed to order prior to September 30, 2000, shall receive a discount of [*]
off of the pricing on the B Exhibits.
Discounts applied to a Market under Sections 5.6 and 16.2.1 of this
Contract shall be added together and calculated against the pricing on the B
Exhibits, as that pricing may be adjusted pursuant to the terms of this
Contract.
5.2 Taxes. The Owner shall reimburse Vendor for all present or
-----
future taxes, levies, imposts, deductions, charges, withholdings and liabilities
("Taxes") imposed on the Vendor by any Governmental Entity relating to the
-----
provision of Products and Services by the Vendor to the Owner under this
Contract, provided, however, that the Owner shall not be liable for and shall
not pay or reimburse Vendor for any Taxes on or measured by the income or
receipts of the Vendor. If the Owner shall pay Taxes for which the Vendor
receives a credit, then the Vendor shall reimburse to the Owner an amount equal
to such credit.
5.3 Invoicing and Payment. Payment for the Products and Services
-------
to be supplied pursuant to this Contract shall occur as follows (in each case
following submission of an invoice by the Vendor which shall properly document,
to the reasonable satisfaction of the Owner, all the items included):
(a) Products for Systems: except as set forth in subsections (b)
--------------------
and (c) below:
(i) [*] of the Product purchase price shall be
invoiced upon shipment of the Product.
(ii) Payment for Products except as provided in
subsection 5.3 (a) (iii) shall be as follows:
[*] of invoiced amount due within thirty (30) days
of invoice date;
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
25
<PAGE>
[*] of invoiced amount due within thirty (30) days
after completion of Installation and Integration;
[*] of invoiced amount due within thirty (30) days
after Owner signs the Certificate of Substantial
Completion;
[*] of invoiced amount due within thirty (30) days
after Final Acceptance of the System for which the
Products were ordered.
(iii) Payment for Products to be installed in the Markets listed
on Exhibit S shall be [*] net thirty (30) days of invoice and [*] payable
thirty (30) days after Owner's acceptance of Notice of Completion of
Installation and Integration.
(b) Services: Except as provided below, Services shall be invoiced as
---------
performed, or as soon thereafter as practical but in no event more frequently
than monthly, provided that Installation and Integration Services and
Optimization Services will only be invoiced after the Owner signs a Certificate
of Substantial Completion in respect of the System for which such Services are
rendered; provided that in the event that a Certificate of Substantial
Completion is not issued within five (5) Business Days after the Guaranteed
Substantial Completion Date because of a delay in reaching Substantial
Completion solely attributable to the failure or lack of performance of Owner to
satisfy its obligations and commitments in a timely manner, such amount shall be
invoiced on the fifth (5th) Business Day following Substantial Completion.
For Services rendered in Markets listed on Exhibit S, the following
provisions shall apply; Equipment Engineering Services, as described in Exhibit
B-1, for Products will be invoiced together with the invoice for such Products.
Pre-Deployment Services will be invoiced upon Owner's signature of a Certificate
of Substantial Completion for such Services. Fixed Network Designed Services
will be invoiced upon completion and delivery of Vendor's analysis to Owner.
[*] of the RF Design Services price will be invoiced upon delivery of the
preliminary search ring data and [*] upon Owner's signature of Certificate of
Final Acceptance for the applicable System. Architectural & Engineering
Services will be invoiced upon Owner's signature of the Certificate of
Substantial Completion for the applicable System. Site Acquisition for all Cell
and MSC Sites, together with Installation and Integration Services for Products
will be invoiced upon Owner's signature of the Notice of Completion of
Installation and Integration Certificate of the applicable System. Building
permit costs and application fees associated with site acquisition and zoning
shall be invoiced as incurred by Vendor, or as soon thereafter as practical, but
no more often than monthly. Construction Management Services for cell and MSC
Sites and overall Program Management Services will be invoiced upon Owner's
signature of a Certificate of Final Acceptance for the related System. RF
Optimization Services will be invoiced upon Owner's signature of a Certificate
of Final Acceptance for the related System. Invoices
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
26
<PAGE>
for NRC Monitoring and Surveillance Services will be invoiced monthly as the
Work is performed. Invoices for Civil Construction Services will be invoiced
monthly as the Work is performed. CTSO Services are paid for upon payment of
ARMFs pursuant to the terms of Exhibit B-5. If CTSO Support Services are not
provided pursuant to the terms of Exhibit B-5, such Services will be invoiced
monthly as the Work is performed. Unless otherwise noted, all such invoices
will be payable thirty (30) days from the date of transmission of Vendor's
invoice.
(c) Optional Software Features and Spares: The purchase price for
-------------------------------------
the initial Optional Software Features and Spares shall be invoiced after the
Owner signs a Certificate of Substantial Completion in respect of the System for
which such initial Optional Software Features and Spares are furnished; provided
that in the event that a Certificate of Substantial Completion is not issued
within five (5) Business Days after the Guaranteed Substantial Completion Date
because of a delay in reaching Substantial Completion attributable solely to the
failure or lack of performance of Owner to satisfy its obligations and
commitments in a timely manner, such amount shall be invoiced on the fifth (5th)
Business Day following Substantial Completion.
(d) Expansions (Growth):
-------------------
(i) [*] of the Product purchase price of all Purchase Orders
completed by the Vendor for which Vendor provides installation Services
pursuant to an Expansion shall be invoiced upon shipment of such Products.
[*] of the invoiced amount will be payable thirty (30) days from date of
transmission of Vendor's invoice, and the remaining [*] will be payable
thirty (30) days after the date Owner signs the Notice of Completion of
Installation and Integration Certificate; and
(ii) [*] of the Product purchase price of all Purchase Orders
completed by the Vendor with respect to Products for which Vendor provides
no installation Services pursuant to an Expansion shall be invoiced upon
shipment of such Products, payable thirty (30) days after the date Vendor
issues its invoice.
(e) Payment of Invoices. Owner shall pay the invoiced amounts, less
-------------------
any disputed amounts, within the time periods noted in this Contract.
Delinquent payments are subject to a late payment charge after thirty (30) days
at the rate of [*] per month, or portion thereof, of the amount due (but not to
exceed the maximum lawful rate). Any disputed items which are determined to be
validly billed are due for payment based upon the original invoice date.
5.5 No Payment in Event of Material Breach. Subject to Subsection
--------------------------------------
24.5, the Owner shall have no obligation to make any payment for any Work with
respect to which the Vendor is in material breach of this Contract until and
unless such breach is cured or waived by the Owner in accordance with the terms
of this Contract.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
27
<PAGE>
5.6 Additional Product Price Provisions. For the Markets listed on
-----------------------------------
Exhibit S that have Commercial Service Launch Dates identified on Exhibit S as
December 1, 2000 or earlier, and that achieve Commercial Service with [*] or
more of the planned cell sites prior to December 1, 2000, there will be no
change in the prices set forth in the B Exhibits for the Products for those
Markets. For all other Markets listed, or to be listed, on Exhibit S and for the
Markets listed on Exhibit S that have Commercial Service Launch Dates prior to
December 1, 2000 but are not launched with [*] or more of the planned cell sites
in accordance with the terms of this Contract, Cricket will be issued purchase
credits in an amount equal to [*] of the net invoiced amount for all of the
Products purchased, and to be purchased, by Cricket for such Markets. Such
purchase credits will be added to the Region 1 Swap Out Credit pool established
in Section 7.2. These credits may be applied by Owner against any invoice for
any Market after December 1, 2000. Credits under this subsection shall not be
applied in amounts that are greater than [*] of all Products purchased for the
Market giving rise to the claim.
5.7 Currency and Place of Payment. Payments under this Contract shall
-----------------------------
be made in US dollars and if such method of payment is acceptable to Owner,
Owner shall pay all amounts due Vendor hereunder using Electronic Funds Transfer
("EFT"). EFT payments by Vendor shall be made to the following account of Vendor
or such other account as is subsequently designated by Vendor in writing and,
concurrent with the EFT payment, Owner shall fax a coy of the remittal to
Vendor's manager of cash operations at 770-750-4288:
Chase Manhattan Bank
New York, New York
Account Name: Lucent Technologies Inc.
Acct.: 910144-9099
ABA 021000021
SECTION 6. AVAILABILITY OF IOS
-------------------
6.1 Availability of IOS. [***]
-------------------
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
28
<PAGE>
6.2 Effect of Other Base Stations. [***]
-----------------------------
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
29
<PAGE>
SECTION 7. MODCELL/MINICELL REPLACEMENT
7.1. Minicell/Modcell. For markets to be located in Chattanooga and
----------------
Nashville, Tennessee, for up to a maximum of [*] Sites, [*] shall de-install and
redeploy the minicells in such Markets to a market area(s) of Owner's choice at
[*], and replace such minicells with modcells in accordance with this Section.
[*] shall be responsible for temporary warehousing of the de-installed minicells
at a location of Owner's choosing within the United States. [*] shall be
responsible, at [*], for transportation from the original location to such
warehouse, transportation from such warehouse to the new installation Site, and
re-installation at the new Site within the United States. [*] shall be
responsible for the cost of installation of the replacement modcells. In
addition, Vendor shall provide up to [*] refurbished 5 ESS(R) switches
engineered for up to fifty (50) minicells and one carrier each at [*] for use in
any of Owner's markets at Owner's choice. [*] shall be responsible for the cost
of engineering and installation of such switches, at prices consistent with the
prices set out in Exhibit B-2 and B-3.
Vendor shall reimburse Owner [*] incurred by Owner as a result of the use
of minicells in Nashville and Chattanooga, Tennessee, up until the replacement
of the minicells with modcells in such markets. In the event that Owner delays
the installation of modcells after they are made available by Vendor, Vendor
shall not be responsible for [*] incurred by Owner after the date that the
replacement is made available.
During the time commencing on the date the minicells are decommissioned
from operation in the System, until the date that the minicells are installed in
the new reinstallation Site, the applicable Warranty Period remaining on such
Products, if any, will be suspended. Thereafter, upon reinstallation, the
Warranty Period shall continue for a period which is the greater of (i) the
remaining Warranty Period; and (ii) twelve months following reinstallation.
During period from decommissioning to redeployment, Vendor will continue to
supply all Class A Upgrades, new Software loads, and other standard support
which would otherwise be provided pursuant to this Contract. Vendor shall, at
[*], provide reasonable quantities of spares and training in light of the new
total network deployment of modcells and minicells.
If the refurbished 5 ESS(R) switches to be delivered to Owner have not been
decommissioned immediately prior to the time that they are to be refurbished and
engineered, Vendor will provide Owner with a reasonable opportunity to inspect
the switches at the site where such switches are located, to satisfy itself that
such switches are in a reasonable state of repair and will be fit for Owner's
purposes; provided that the owner or operator of such site consents to the site
inspection. Owner may refuse to accept such a switch that is not, in Owner's
reasonable opinion, in such a satisfactory condition in accordance with the
foregoing. If the refurbished 5 ESS(R) switches to be delivered to Owner have
been decommissioned and removed from the prior operator's
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
30
<PAGE>
network, Owner or, at Owner's request, a qualified third party reasonably
acceptable to both parties, shall have the right to conduct a reasonable
inspection on such switch, to determine whether the switches are in such a
satisfactory condition in accordance with the foregoing. If Owner reasonably
objects to the conditions of any of such switches, Vendor will either obtain the
necessary switches in a satisfactory condition, or take such other actions as
are necessary to satisfy Owner's objections.
7.2 Region I Swap-out Credit. Vendor will make available to Owner
------------------------
general purchase credits in the amount of [*] (the "Region I Swap-out Credits"),
-------------------------
to be applied against any invoice issued by Vendor during the initial twenty
four (24) months of the Contract term, provided that Credits shall not be
applied to any particular invoice in an amount greater than 20% of the net
invoiced amount; provided, however that Vendor will agree with reasonable
requests by Owner to either adjust the amount which can be applied to each
invoice in order to ensure that the entire amount of the Region I Swap-out
Credits are applied against invoices during such initial twenty four (24) month
period or extend the initial twenty four (24) in order to facilitate the entire
usage of the Region I Swap-out Credits.
7.3 MSC Pricing. For all MSC switches ordered by Owner for any
-----------
System and which are engineered to support a third carrier at the time of
delivery, Vendor agrees, at no additional expense, to defer invoicing Owner for
that portion of the purchase price for the Equipment attributable to the third
carrier support (Equipment only) until a date which is [*] months following the
Guaranteed Substantial Completion Date of the System relating to each such MSC.
For purposes of this Section, the portion of each invoice deferred for the third
carrier shall be equal to [*] of the price of each MSC. Each such invoice shall
be payable within five (5) days of the date of transmission of Vendor's invoice.
The deferred invoicing will be accelerated and be issued forthwith if Owner
begins to utilize the third carrier functionality on a particular MSC.
SECTION 8. SERVICES
8.1 Transportation. The Vendor shall at the Vendor's sole cost and
--------------
expense provide for the transportation and delivery to the Sites of all the
Products to be delivered pursuant to, and in accordance with, each Purchase
Order and the terms of this Contract. In the event of any unusual Site
selections or requirements which require transportation arrangements out of the
ordinary course having regard to normal industry standards and practices (such
as non-standard crane requirements, helicopter transportation requirements to a
remote setting, etc.), Vendor shall arrange, subject to Owner's prior approval,
for such exceptional transportation requirements from local staging facilities
or warehouse locations to the unusual Site. Vendor shall notify Owner that it
believes, in good faith, that exceptional transportation arrangements are
necessary in the circumstances, and Vendor will consult with Owner on an
approved course of action to complete delivery. Owner shall be responsible for
all costs with respect to such exceptional transportation requirements in excess
of transportation costs applicable to a standard Site. In the event that Owner
requires
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
31
<PAGE>
Vendor to ship any Products to a warehouse location, Owner shall be responsible
for all costs associated with transportation of such Products from such
warehouse to the Site(s).
8.2 Services. The Vendor shall provide the Services ordered by Owner
--------
in accordance with the provisions of this Agreement and the Exhibit.
8.3 No Interference. The Vendor shall install all Equipment and
---------------
build each of the Systems so as to cause no unauthorized interference with or
obstruction to lands and thoroughfares or rights of way on or near which the
installation work may be performed. The Vendor shall exercise every reasonable
safeguard to avoid damage to existing facilities, and if repairs or new
construction are required in order to replace facilities damaged by the Vendor
due to its carelessness, negligence or willful misconduct, such repairs or new
construction shall be at the Vendor's sole cost and expense. Vendor understands
that many of the Sites may be co-located with other RF transmission facilities
and Vendor shall take all necessary precautions and safety measures to ensure
the safety of all of Vendor's and Subcontractors' personnel at such Sites. The
Owner shall use its reasonable best efforts to ensure that no other third
parties employed or engaged by the Owner hinder or delay the Vendor in the
performance of its obligations hereunder, including the provision of Services.
The parties will address any such hindrance or delay pursuant to the change
order process outlined below.
Vendor represents and warrants that all Products furnished hereunder shall
comply, to the extent required, with the requirements of Part 24 of the Federal
Communication Commission's Rules and Regulations (the "FCC Rules") pertaining to
---------
personal communications services in effect upon delivery of such Product. In
addition, Vendor represents and warrants that a Product furnished hereunder
shall comply, to the extent required, with the requirements of Subpart J of Part
15 of the FCC Rules 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. Vendor makes no
undertaking with respect to harmful interference caused by (i) unauthorized
installation, repair, modification or change or Products not furnished by
Vendor; (ii) Products being subject to misuse, neglect, accident or abuse by
other than Vendor; (iii) Products 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 ranges reserved for Owner within the
applicable licensed area. Vendor assumes no responsibility under this clause
for items not specified or supplied by Vendor. The foregoing warranties are
collectively referred to as the "Compliance Warranty".
-------------------
Vendor shall, when appropriate, have reasonable access to Owner's premises
during normal business hours and at such other times as may be agreed upon by
the parties in order to enable Vendor to perform its obligations under this
Contract. Vendor shall coordinate such access with Owner's designated
representative prior to visiting such premises. Vendor agrees to instruct its
employees to comply with all site rules while on Owner's premises. The
employees and agents of Vendor shall, while on the Owner's premises, comply with
all site rules and guidelines including, but not limited to, where required by
government regulations, submission of satisfactory clearance from U.S.
Department of Defense and
32
<PAGE>
other governmental authorities concerned. Neither party shall require waivers
or releases of any personal rights from representatives of the other in
connection with visits to its premises, and no such releases or waivers shall be
pleaded by either party in any action or proceeding.
For purposes of this Section, all references to "Owner's premises" and other
similar references shall be deemed to refer to any location where a Site is to
be located, which may include land or buildings owned or leased by Owner. To
the extent that Owner does not own the premises, Vendor's obligations to adhere
to site rules and guidelines shall include, without limitation, those rules and
guidelines required by the owner, landlord or property manager having care and
control of such premises, which Owner has provided to Vendor in advance of the
commencement of the applicable Work hereunder.
SECTION 9. MANUALS, ENGINEERING DRAWINGS AND TRAINING
9.1 Documentation. The Vendor shall provide the Documentation in the
-------------
amounts and formats listed in Exhibit P. The Documentation shall be prepared in
accordance with the relevant Specifications. Operating Manuals with up-to-date
(but not "as-built") drawings, specifications and design sheets shall be
available for the Training as set forth in subsection 9.4.
9.2 Standards for Manuals. All Operating Manuals and Maintenance and
---------------------
Instruction Manuals required to be provided by the Vendor pursuant to this
Contract shall be:
(a) detailed and comprehensive and prepared in conformance with the
Specifications and generally accepted national standards of professional care,
skill, diligence and competence applicable to telecommunications and operation
practices for facilities similar to the Systems;
(b) consistent with good quality industry operating practices for
operating personal communications service systems of similar size, type and
design;
(c) sufficient to enable the Owner to operate and maintain each
System on a continuous basis; and
(d) prepared subject to the foregoing standards with the goal of
achieving operation of each System at the capacity, efficiency, reliability,
safety and maintainability levels contemplated by this Contract and required by
all Applicable Laws and Applicable Permits.
9.3 Equipment and Data. The Vendor shall furnish all drawings,
------------------
specifications, specific design data, preliminary arrangements and outline
drawings of the Equipment and all other information as required in accordance
with this Contract in
33
<PAGE>
sufficient detail to indicate that the Equipment and fabricated materials to be
supplied under this Contract comply with the Specifications.
9.4 Training. As more fully described in Exhibit O, the Vendor
--------
shall provide to the Owner a training program with respect to each System
(collectively, the "Training"). Promptly upon execution of this Contract, the
---------
Vendor shall establish a training coordinator, whose responsibility shall be to
work with the Owner to ensure that the Owner receives the Training. Such
coordinator (or his or her replacement) shall continue in such assignment until
the receipt by the Owner of all of the Training required to be provided.
9.5 Manuals and Training. The Training and the Documentation
--------------------
provided in connection herewith, including, without limitation, all
Documentation provided in CD-ROM format, and pursuant to subsections 9.2, 9.3
and 9.4 shall be updated in reasonable quantities at no additional cost to Owner
pursuant to and in accordance with all Product upgrades and/or modifications
applicable to any System and/or any part thereof.
SECTION 10. ACCEPTANCE PROCEDURES
10.1 Acceptance Procedures. Depending upon the specific Products
---------------------
and Services to be furnished by Vendor, and those tasks for which Owner shall
assume responsibility, the parties, directly or through third-party vendors or
other Subcontractors, as the case may be, shall carry out the following
procedures. Certain of the tests below will apply to purchases of Products and
Services which comprise a System, while certain other tests will apply to tests
for Product and Service purchases for Expansions.
(a) Factory Tests. Owner may, at Owner's option and cost, be
--------------
present at any factory testing conducted by Vendor. Vendor shall give the Owner
ten (10) Business Days advance notice of any such factory testing relating to
the Products or Services furnished by Vendor hereunder. Vendor shall cooperate
with Owner to facilitate Owner's observation of such tests. Regardless of
whether or not Owner observes any factory testing, Vendor agrees to, within a
reasonable period of time in view of the nature and urgency of the request, upon
written request by Owner, provide Owner with copies of all documentation
relating to factory testing of the Product specified by Owner, including without
limitation copies of test procedures, test results and FCC compliance
certifications.
(b) Site Preparation Substantial Completion. Upon completion of all
----------------------------------------
Site Preparation with respect to each Site for which the Owner has issued a
Purchase Order directing the Vendor to proceed with Site Preparation activities,
the Vendor shall issue a Site Preparation Substantial Completion Certificate
("Site Preparation Substantial Completion Certificate") certifying that all Site
---------------------------------------------------
Preparation specified in the Purchase Order is substantially complete. Such
certificate shall be accompanied by a Punch List of all incomplete items which
items shall be completed by the Vendor prior to Final Acceptance. In the event
the Owner performs Site Preparation with respect to a Site, the Owner shall
issue the Site Preparation Substantial Completion Certificate.
(c) Notice of Completion of Installation and Integration
----------------------------------------------------
Certificate. Upon completion of the installation of the BTS and other Products
-----------
and the completion of integration activities in accordance with Exhibit F, the
Vendor shall issue a Notice of Completion of Installation and Integration
Certificate certifying that all installation and integration activities
specified in Exhibit F are substantially complete. Such certificate shall be
accompanied by a Punch List of all incomplete items which items shall be
completed by the Vendor prior to Final Acceptance. Owner shall sign off
34
<PAGE>
on or make known any objections to the Notice of Completion of Installation and
Integration Certificate within fifteen (15) business days after such notice is
delivered to Owner, otherwise the Notice of Completion of Installation
Certificate shall be deemed accepted.
(d) Certificate of Substantial Completion. Upon completion of
-------------------------------------
Optimization Services and all testing with respect to a System in accordance
with Exhibit G, which in no case shall occur until Owner has signed the Notice
of Completion of Installation and Integration Certificate for no less than
ninety (90) per cent of the cell sites planned for the System, the Vendor shall
issue a Certificate of Substantial Completion., The Certificate of Substantial
Completion shall be in the form of a checklist listing all tests performed and
the results thereof, and shall be accompanied by a Punch List of outstanding
items (the "Certificate of Substantial Completion"). Upon its reasonable
-------------------------------------
satisfaction that the Certificate of Substantial Completion is correct and
complete, the Owner shall promptly sign the Certificate of Substantial
Completion.
(e) "Beta" Tests Upon written notice to the Vendor, the Owner shall
------------
be entitled, in its sole discretion to conduct beta testing, and in connection
therewith the Owner shall be entitled to add appropriate items to the Punch List
prior to Final Acceptance.
(f) Certificate of Final Acceptance. During the [*] day period
-------------------------------
following Substantial Completion (as extended as described below, the "Initial
Period"), the Vendor shall complete all outstanding Punch List items and the
Owner and the Vendor shall monitor the System for outages and compliance with
the Specifications. In event that all Punch List items have been completed
during the Initial Period, all testing specified in Exhibit G has been
satisfactorily completed and there have been no Major Outages, then at the end
of the Initial Period the Vendor shall issue a Certificate of Final Acceptance
certifying the same. Upon its reasonable satisfaction that the Certificate of
Final Acceptance is correct and complete, the Owner shall sign the Certificate
of Final Acceptance. In the event that a Major Outage occurs during the Initial
Period, the Initial Period shall be extended (each, an "Extension Period") as
----------------
follows: (i) if a Major Outage occurs on or prior to [*] days after the
commencement of the Initial Period, the Initial Period shall be extended for an
additional [*] days, (ii) if a Major Outage occurs after [*] days but on or
prior to [*] days after the commencement of the Initial Period, the Initial
Period shall be extended for an additional [*] days, and (iii) if a Major Outage
occurs after [*] days but on or prior to [*] days after the commencement of the
Initial Period, the Initial Period shall be extended for an additional [*] days.
In the event a Major Outage occurs during any Extension Period, the Initial
Period shall be further extended by an additional period of [*]. Owner shall
issue a Certificate of Final Acceptance not later than the end of the
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
35
<PAGE>
Initial Period (as extended) after receipt of notice of Vendor that it corrected
the problem giving rise to the Major Outage or Major Outages. Documentation not
already delivered to the Owner pursuant to the terms of this Contract shall be
delivered to the Owner within [*] Business Days of Final Acceptance. With
respect to each System, the Owner shall not be required to sign the Certificate
of Final Acceptance until all such documentation has been so delivered (and
Final Acceptance shall not be deemed to have occurred earlier than the date that
is [*] Business Days prior to the date of delivery of such documentation). In
addition to, and without limiting the requirements set forth in the preceding
sentence, the Operating Manuals and the Maintenance and Instruction Manuals
shall be submitted to the Owner in CD-ROM format (when available) in addition to
hard-copy volume format if so requested by the Owner.
10.2 Costs and Expenses. The costs and expenses of complying with
------------------
all acceptance procedures set forth above shall be borne by the Vendor, provided
that Owner remains responsible for completing those items identified as Owner's
responsibility in the Exhibits.
SECTION 11. CHANGE ORDERS AND SCHEDULING
11.1 Change Orders. The Owner has the right to request expansions,
-------------
other revisions and/or modifications to any Purchase Order or to the Work
("Changes"), including but not limited to the Specifications, the manner of
-------
performance of the Work or the timing of the completion of the Work. All Changes
shall be subject to the prior written consent of the Vendor. All Changes shall
be documented in a written order ("Change Order") which shall be executed by the
------------
Owner and the Vendor and shall contain any adjustments to pricing, Milestones or
other aspects of the Work as mutually agreed by the parties. The Vendor shall
promptly notify the Owner of any such requested Changes which may materially
affect the operation and/or maintenance of any System or any part thereof. In
the event that the parties cannot agree on a Change Order within fifteen (15)
days of submission of a Change Order by the Owner to the Vendor, the matter
shall then be referred to dispute resolution pursuant to Section 23. Nothing
contained in this subsection is intended to limit the Vendor's right, from time
to time, to make suggestions for modifications to the Work or the
Specifications, provided that in any such event the Owner, in its sole and
-------- ----
absolute discretion pursuant to the terms of this Contract may refuse to make
any such modification or otherwise agree to issue a Change Order incorporating
any such Vendor suggestion.
11.2 Cancellation. Owner may at any time cancel, in whole or in
------------
part, any Purchase Order or Change Order upon advance written notice to the
Vendor. In the event of such cancellation, the Owner shall pay to the Vendor
cancellation charges in accordance with the Exhibits.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
36
<PAGE>
SECTION 12. DISCONTINUED PRODUCTS AND CONTINUING PRODUCT SUPPORT
12.1 Notice of Discontinuation. For a period of [*] for the 5 ESS(R)
-------------------------
switch and [*] for all other Products furnished hereunder after the Effective
Date, but in no event less than [*] after the date of shipment, the Vendor
agrees to provide the Owner, or its affiliates as the case may be, not less than
one (1) year notice before the Vendor discontinues a Product ("Discontinued
------------
Products") furnished under this Contract. In respect of Products manufactured by
--------
a third party vendor, the notice period may vary. Where the Vendor offers a
product for sale that is equivalent in Form, Fit and Function in accordance with
and pursuant to the Specifications, the notification period may vary but in no
event shall be less than sixty (60) days. In the event of the foregoing, the
Vendor shall continue to furnish Products fully compatible with the relevant
System Elements within the System at such time during the appropriate [*] and
[*] periods referenced above; provided that nothing herein shall bar the Vendor
from discontinuing individual items of Products as provided in and pursuant to
this subsection. In the event that Vendor discontinues a Product, Vendor will
meet with Owner and use reasonable, good faith efforts to develop a mutually
acceptable transition plan that takes into account the Owner's existing
investment in the item scheduled for discontinuance.
In addition to repairs provided for under any applicable Warranty, Vendor
shall offer repair Services and repair parts in accordance with Vendor's repair
and repair parts practices and terms and conditions then in effect, for Vendor-
manufactured Equipment furnished pursuant to this Contract. Such repair
Services and repair parts shall be available while Vendor is manufacturing or
stocking such Products or repair parts, but in no event less than [*] for the 5
ESS switch and [*] for all other Products after such Product's discontinued
availability effective date. Vendor may use either the same or functionally
equivalent products or parts which are new, remanufactured, reconditioned or
refurbished in the furnishing of repairs or replacements under this Contract.
If during the agreed-to support period following the issuance of notice of
discontinuance, Vendor fails to provide repair parts and or repair Services and
a functionally equivalent replacement has not been designated, Vendor shall so
advise Owner, to allow Owner to plan appropriately, and if Vendor is unable to
identify another source of supply for such repair parts or services, Vendor
shall, in addition to any other right or remedy available to Owner at law or in
equity, provide Owner, at no additional charge to Owner, upon request, with non-
exclusive licenses for Product manufacturing to the extent Vendor can grant such
licenses, so that Owner will have sufficient information, ability and rights to
have such Discontinued Products manufactured, or obtain such repair Service or
repair parts from other sources. Such license shall include appropriate non-
disclosure and confidentiality covenants.
12.2 Discontinuation During Warranty Period. If Vendor discontinues
--------------------------------------
the availability of a Product during that Product's Warranty Period and Owner is
required to
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
37
<PAGE>
purchase a replacement Product to replace the Discontinued Product in order to
maintain the same functionality of the Discontinued Product in a System, Vendor
agrees to grant Owner an additional [*] discount to be applied against the net
price of all Products required to be purchased by Owner as replacements for such
Discontinued Product, which additional discount shall be applied after the
determination of the lowest price available to Owner pursuant to this Contract,
excluding the application of any Region 1 Swap-Out Credits.
SECTION 13. SOFTWARE; CONFIDENTIAL INFORMATION
13.1 RTU License. Upon delivery of the Software, but subject to
-----------
payment of the license fees specified in Exhibit B-5, the Owner is hereby
granted a personal, non-exclusive, fully paid-up, multi-site (capability to move
Software from site to site on prior notice to Vendor) right to use license for
the Software ("RTU License"), to operate the specific Equipment, processor or
-----------
product line for which the licenses to use the Software are initially granted,
or temporarily on any comparable replacement if any such Equipment, processor or
product line becomes inoperative. Owner shall use such Software only for its
own internal business operation. The RTU License grants Owner no right to, and
Owner will not, sublicense such Software or modify, decompile, or disassemble
Software furnished as object code to generate corresponding source code provided
in each of the Systems. Except as provided below, no license is granted to
Owner to use the Software outside of the United States.
In the event that Owner wishes to use the Software on associated equipment
outside of the United States or to transfer Software to an affiliate or third
party transferee located outside the United States, Vendor shall not
unreasonably withhold its consent to such use or transfer, provided that Vendor
or the transferee, as the case may be, enters into an appropriate license
agreement with an affiliate of Vendor carrying on business in the territory in
which the Software is to be located, on terms substantially similar to the RTU
License terms set forth herein, provided, however, that Owner acknowledges and
agrees that support and maintenance obligations set forth herein are only
applicable for Software resident on Equipment located within the United States.
Support and maintenance Services offered by Vendor's affiliates differs in
various different territories, and will be subject to the local practices
maintained in such territory.
13.2 Owner's Obligations. The Owner agrees that the Software,
-------------------
whether or not modified, and all copies thereof made by Owner, shall be treated
as proprietary to the Vendor, its Subcontractors or its suppliers, as
appropriate and the Owner shall:
(a) Utilize the Software solely in conjunction with a System;
provided that the Vendor acknowledges that the Software shall be integrated
-------- ----
across interfaces with systems, equipment and software provided by other
suppliers and customers;
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
38
<PAGE>
(b) Ensure that all copies of the Software shall, upon any
reproduction by the Owner authorized by the Vendor and whether or not in the
same form or format as such Software, contain the same proprietary,
confidentiality and copyright notices or legends which appear on the Software
provided pursuant hereto; and
(c) Hold secret and not disclose the Software to any person, except
to (i) such of its employees, contractors, agents or affiliates that are
involved in the operation or management of a System and need to have access
thereto to fulfill their duties in such capacity, or (ii) other Persons who need
to use such Software to permit integration of a System with systems and software
of other suppliers and customers; provided that such persons agree, or are
-------- ----
otherwise obligated, to hold secret and not disclose the Software to the same
extent as if they were subject to this Contract, and provided further that if
any such Person is a competitor of Vendor involved in the manufacture of
communications equipment, software or related services, Vendor must approve such
use on a case-by-case basis on commercially reasonable terms and such use shall
be subject to an appropriate non-disclosure agreement.
(d) When and if the Owner determines that it no longer needs the
Software or if the Owner's license is canceled or terminated pursuant to the
terms of this Contract, return all copies of such Software to the Vendor or
follow reasonable written disposition instructions provided by the Vendor. If
the Vendor authorizes disposition by erasure or destruction, the Owner shall
remove from the medium on which Software resides all electronic evidence of the
Software, both original and derived, in such manner that prevents subsequent
recovery of such original or derived Software.
(e) Owner shall not copy Software embodied in firmware and unless
otherwise specifically provided in this Contract, Owner is not granted any right
to modify Software furnished by Vendor under this Contract.
13.3 Backwards Compatibility. The Vendor represents and warrants
-----------------------
(the "Software Backwards Compatibility Warranty") that each Software Maintenance
------------------------------------------
Release, Software Upgrade and Software Enhancement will be Backwards Compatible.
[***] Notwithstanding the foregoing, the Software Backwards Compatibility
Warranty does not apply to Products developed beyond 3G1X which are developed in
accordance with standards not yet finalized as of the date hereof.
13.4 Transfer and Relocation. (a) In the event the Owner or any
-----------------------
successor to the Owner's title in the Products (i) elects to transfer a Product
to a third party, and where such Product shall remain in place and used for
substantially the same purpose as used by the Owner and where such third party
resides in the United States and is not a direct competitor of the Vendor
involved in the manufacture of communications equipment, software or related
services, or (ii) elects to transfer Products to an affiliate, the Owner may
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
39
<PAGE>
transfer its RTU License for the Software furnished under this Contract for use
with such Product, without the payment of any additional Software right-to-use
fees by the transferee provided that Annual Maintenance Fees shall continue to
be calculated on the same basis. For example, if the RTU License for the
Software contains usage or per subscriber limits, or the processor to be used by
transferee requires additional memory or hard disk space additional payments or
purchases may be required. The following conditions shall apply to transfers
and relocations pursuant to this subsection 13.4:
(A) The right to use such Software may be transferred only
together with the Products with which the Owner has a right
to use such Software, and such right to use the Software
shall continue to be limited to use with such Products;
(B) Before any such Software is transferred, the Owner shall
notify the Vendor of such transfer and the transferee shall
have agreed in writing (a copy of which shall be provided to
the Vendor) to keep the Software in confidence and to
corresponding conditions respecting possession and use of
Software as those imposed on the Owner in this Contract; and
(C) The transferee shall have the same right to Software
warranty and Software maintenance for such Software as the
transferor, provided the transferee continues to pay the
fees, including recurring fees, if any, associated with such
Software warranty or maintenance pursuant to this Contract.
(b) Except as otherwise provided in this Contract, the Owner or any
successor to the Owner's title in the Products shall have no right to transfer
Software furnished by the Vendor under this Contract without the consent of the
Vendor, which consent shall not be unreasonably withheld. If the Owner or such
successor elects to transfer a Product purchased under this Contract for which
it does not under this Contract have the right to transfer related Software, the
Vendor agrees that upon written request of the transferee of such Product, or of
the Owner or such successor, the Vendor shall not without reasonable cause fail
to grant to the transferee a license to use such Software with the Products,
whether to be located within the United States or elsewhere, upon payment of a
relicensing fee to the Vendor on commercially reasonable terms acceptable to
Vendor.
13.5 Termination and Survival. The rights and obligations of the Owner
------------------------
under the RTU License shall survive the termination of this Contract, regardless
of the cause of termination provided Owner has met its material obligations
hereunder and has rendered all payments in accordance with this Contract. In the
event that Owner persistently and materially breaches its confidentiality
obligations hereunder with respect to the Software notwithstanding the fact that
Vendor will have provided Owner with prior written notice describing the alleged
material breaches and will have given Owner a reasonable time, and in no event
less than thirty (30) days, to cure any such breaches, Vendor may terminate
40
<PAGE>
Owner's RTU License. In the event that Owner fails to pay the Annual Release
Maintenance Fees (other than with respect to any periods for which no payment
for Annual Release Maintenance Fees are due pursuant to this Contract), Vendor
may terminate Owner's right to use the Software to which such fees apply. In no
event other than as set forth in this subsection 13.5 may Vendor terminate
Owner's right to use the Software. Notwithstanding any other provision of this
Contract, if there is a dispute, pending final resolution of such dispute, all
of Owner's rights under this Contract shall continue in full force and effect,
and Vendor will not terminate the RTU License, and so long as Owner continues to
pay Vendor applicable Annual Maintenance Release Fees, Vendor will not
terminate, suspend, interrupt or delay maintenance and support of the Software.
13.6 Access to Source Codes. The Vendor represents and warrants that as of
----------------------
the date hereof, Vendor has not established a Source Code escrow for any of its
existing customers. In the event that Vendor establishes a Source Code escrow
in the future which applies to any of the Software furnished to Owner hereunder,
Vendor shall add Owner as a beneficiary of such Source Code escrow, and Owner
shall be entitled to receive a copy of the escrowed Source Code in the event of
the occurrence of any of the events set out below. In addition to the
foregoing, the Vendor shall immediately deliver and hereby grants the Owner a
right to access the Source Code and to modify the Software (the "RTM License")
-----------
for the maintenance, enhancement and support of those Products purchased from
the Vendor and owned or operated by the Owner under the following circumstances,
provided that any such released Source Code shall be subject to the
confidentiality provisions set forth in this Contract:
(i) if the Vendor becomes insolvent, makes a general assignment for
the benefit of creditors, files a voluntary petition in bankruptcy or an
involuntary petition in bankruptcy is filed against the Vendor which is not
dismissed within sixty (60) days, or suffers or permits the appointment of
a receiver for its business, or its assets become subject to any proceeding
under a bankruptcy or insolvency law, domestic or foreign, or has
liquidated its business, or the Vendor, or a business unit of the Vendor
that is responsible for maintenance of the Software, ceases doing business
without providing for a successor, and the Owner has reasonable cause to
believe that any such event shall cause the Vendor to be unable to meet its
Warranty service or support requirements hereunder; or
(ii) if the Vendor ceases to maintain or support a previously
supported version of the Software and Owner cannot obtain, with Vendor's
assistance (for example, by providing a third party with Source Code or by
any other appropriate method) the same support services the Vendor is
required to provide under this Contract from another entity (either working
with or independently from Vendor) at a price that is equal to or less than
the prices for such support as provided herein, or there is a persistent
and material failure by Vendor to provide the Warranty service or support
it is required to provide pursuant to the terms of this Contract.
41
<PAGE>
13.7 Ownership of Intellectual Property. The Vendor shall own all forms
----------------------------------
of intellectual property rights (including, but not limited to, patent, trade
secret, copyright and mask rights) pertaining to the Software, and shall have
the right to file for or otherwise secure and protect such rights. The
foregoing notwithstanding, the parties understand and agree that from time to
time the Owner may devise, develop or otherwise create ideas or other concepts
for services or new products which are patentable or otherwise capable of
receiving protection from duplication. In such event, the Owner shall have the
right to apply for a patent in accordance with applicable law, provided,
however, that notwithstanding this subsection, the Vendor does not hereby
relinquish or release any of its intellectual property rights.
SECTION 14. SOFTWARE AND EQUIPMENT CHANGES
14.1 Software.
--------
14.1.1 Software Upgrades, Software Maintenance Releases,
------------------------------------------------
Software Enhancements and Combined Releases. During the Contract Term, upon
-------------------------------------------
payment of the Annual Release Maintenance Fees, calculated pursuant to Exhibit
B-5, Owner shall receive all base Software releases and all Software Maintenance
Releases, Software Upgrades, Software Enhancements and Software Combined
Releases applicable to Software for Products for which the Owner has obtained a
RTU License at such times as they become generally available to the Vendor's
customers. Owner shall also be entitled to receive Optional Software Features
upon payment of the appropriate fees determined in accordance with Exhibit B-5.
Owner may elect to purchase such features on a per feature basis, or purchase
annual buy-out rights on a per market basis, permitting Owner to select those
features it wishes to deploy in the relevant market.
14.1.2 Notice. The Vendor shall give the Owner, or cause the
------
Owner to be given not less than ninety (90) days prior written notice of the
introduction of any Software Enhancement release or any Software Combined
Release or any optional Software release. In addition, in each February and
August of each year during the term of this Contract, the Vendor shall provide,
or cause to be provided, to the Owner a forecast of future Software Enhancement
releases, Software Upgrades, or Software Combined Releases or any optional
Software release, as the case may be, then currently being developed by or on
behalf of the Vendor.
14.1.3 Installation, Testing and Maintenance. The installation
-------------------------------------
and testing of the Software by the Vendor and the acceptance thereof by the
Owner shall be performed in accordance with the criteria set forth in Exhibit G.
14.1.4 Software Fixes. In the event that any Software
--------------
Maintenance Release, Software Upgrade, Software Enhancement or Software Combined
Release supplied by the Vendor during the term of this Contract has the effect
of preventing any System or any part thereof from satisfying, or performing in
accordance with the Specifications or the Exhibits or otherwise adversely
affects the functionality or features of
42
<PAGE>
any System or any part thereof, then the Vendor shall promptly retrofit or take
such other corrective action as may be necessary to ensure that any System or
any such affected part, as modified to include each such Software Maintenance
Release, Software Upgrade, Software Enhancement or Software Combined Release,
shall satisfy, and perform in accordance with, the Specifications and the
Exhibits and restore all pre-existing functionality and features as well as
provide any new features and functionality provided by any of the foregoing
modifications, in each case without any charge to the Owner (other than payment
of the applicable fees pursuant to the terms of this Contract). Notwithstanding
anything contained herein in this subsection to the contrary, Owner shall be
responsible for the cost of any additional Equipment required to accommodate
additional capacity, memory or processing requirements necessitated by any new
Software feature or Optional Software Feature which Owner elects to use
(provided such use by Owner is optional without losing the benefit of the
Software Maintenance Release or Software Upgrade) which are contained in any
such Software Upgrade, Software Enhancement or Software Combined Release;
provided, however, that Owner shall not be required to pay for any additional
Equipment required to accommodate additional capacity, memory or processing
requirements necessitated by implementation of a required Software Maintenance
Release, whether or not such Software Maintenance Release is issued as a stand-
alone release, or is contained within a Software Upgrade, Software Enhancement
or Software Combined Release.
14.2 Equipment.
---------
14.2.1 Equipment Upgrades. (a) (i) Equipment Upgrades will be
------------------
provided to the Owner by the Vendor at no charge to the Owner as provided in
subsection 14.2.1(b) below. Equipment Enhancements must be provided to the
Owner by the Vendor, if requested by the Owner, and the Owner is obligated to
make payment therefor in an amount that is specified on the B Exhibits. If the
Vendor at any time issues an Equipment Upgrade which is combined with any
Equipment Enhancement (collectively, the "Equipment Combined Release") to such
--------------------------
Equipment, the Equipment Combined Release will be provided at no charge to the
Owner unless and until the Owner uses any of the Equipment Enhancements
included within the Equipment Combined Release, provided such use by Owner of
such Equipment is optional without losing the benefit of the Equipment Upgrade.
(ii) In order to identify and minimize the impact to Owner
and Owner's subscribers should BTS Products (hardware circuit packs only)
exhibit excessive failures from Defects and Deficiencies or other recurring
failures ("Field Failures"), Vendor shall provide the following:
a. Vendor shall provide to Owner quarterly reviews on all BTS
circuit pack failure rates for Products returned to
Vendor through Vendor's return, service and repair
process("RS&R Process"). Except for data relevant to
Owner's Field Failures, such data shall not contain
information identifying any of Vendor's other customers.
43
<PAGE>
b. Vendor shall perform its failure mode analysis ("FMA")
process when a BTS circuit pack of a given revision level
is found to have an annualized failure rate above [*]. The
annualized failure rate is calculated within a period not
to exceed the most recent twelve (12) months and such
Field Failures shall be averaged across circuit packs of
its revision level within the Owner's System. If the FMA
process determines that a specific circuit pack is failing
due to a common component or part and the failure rate
exceeds [*] calculated by the method described above, then
Vendor, at no cost to Owner, shall replace all effected
BTS circuit packs with corrected circuit packs. Vendor
shall also cover the cost for the de-installation of the
effected circuit packs and the replacement and
reinstallation with corrected circuit packs, unless the
parties agree otherwise. Owner shall track any returns to
Vendor due to Field Failures and comply with Vendor's RS&R
Process.
c. In the event Owner reasonably suspects excessive failure
rates in any Product delivered under this Contract,
whether or not such failures are service impacting, then
within forty-eight (48) hours of Vendor's receipt of
Owner's written notice, Vendor shall acknowledge such
receipt and propose a response plan which shall include
the commencement of the FMA process to determine the cause
of such failure within the initial forty-eight (48) hour
period. If a series of three consecutive requests within a
twelve (12) month period yields "no trouble found" or if
the parties agree that no common failures exist that
exceed the [*] threshold, then all subsequent FMA requests
received during such twelve month period that do not
result in Equipment Upgrades will be processed at the
Owners expense.
d. In the event that a Field Failure causes Owner's System to
perform not in accordance with the Specifications and such
non-performance results in a loss of service to Owner's
subscribers, then Vendor and Owner shall use best efforts
to minimize any out of service conditions during such
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
44
<PAGE>
e. period of time. Such actions shall include but not be
limited to providing additional Spares, field personnel
and any other assistance the Owner may require for Vendor
to take corrective action related to such Field Failures.
(b) (i) After a Product has been shipped to the Owner, if the Vendor
issues an Equipment Upgrade or Equipment Enhancement, or where a modification to
correct an error in field documentation is to be introduced, the Vendor will
promptly notify the Owner of such change through the Vendor's design change
management system or another Vendor notification procedure. Each change
notification, whether or not it bears a restrictive legend, will be subject to
the confidentiality obligations provided in subsection 26.18, except that such
information may be reproduced by the Owner for the Owner's use as required
within the System. If the Vendor has engineered, furnished, and installed a
Product which is subject to an Equipment Upgrade, the Vendor will implement such
change, at its sole cost and expense, if it is announced within [*] for the 5
ESS(R) switch and [*] for all other Products from the date of shipment of that
Product, and subject to the reasonable review and acceptance of the Owner at
such times as the Owner reasonably determines that it needs to review such
Vendor decision, by either (A) modifying the Product at the Owner's site; (B)
modifying the Product which the Owner has returned to the Vendor in accordance
with the Vendor's reasonable instructions pursuant to and in accordance with the
terms of this Contract; or (C) replacing the Product requiring the change with a
replacement Product for which such change has already been implemented. If the
Vendor has not engineered the original Product application and accordingly
office records are not available to the Vendor, the Vendor will provide the
generic change information and associated parts for the Owner's use in
implementing such change.
(ii) In any of the instances described in clause (i)
above, if the Vendor and the Owner agree that a Product or part thereof
subject to such change is readily returnable, without incurring any
significant time or expense, the Owner, at its expense, will remove and
return such Product or part to the Vendor's designated facility within the
United States and the Vendor, at its sole expense, will implement such
change (or replace it with a Product or part for which such change has
already been implemented) at its facility and return such changed (or
replacement) Product or part at its sole cost and expense to the Owner's
designated location within the United States. Any such reinstallation of
Products which were readily returnable will be performed by the Owner at
its sole expense, provided such reinstallation can be done by Owner
without incurring any significant time or expense. In all other
circumstances, Vendor shall provide such removal, repair and
reinstallation Services at its sole cost and expense.
(iii) If the Owner does not make or permit the Vendor to
make an Equipment Upgrade as stated above within the appropriate [*] or
[*] period from the date of change notification or such other period as
the Vendor may agree, subsequent changes, repairs or replacements affected
by the
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
45
<PAGE>
failure to make such change may, at the Vendor's option, be invoiced to the
Owner whether or not such subsequent change, repair or replacement is
covered under the warranty provided in this Contract for such Product. If
requested by the Owner, Equipment Upgrades announced more than the
appropriate [*] or [*] period from the date of shipment will be implemented
at the Owner's expense.
(iv) If the Vendor issues an Equipment Enhancement after
a Product has been shipped to the Owner, the Vendor will promptly notify
the Owner of such change if it is being offered to any of the Vendor's
customers. Except as otherwise set forth above in subsection 14.2(b), when
an Equipment Enhancement is requested by the Owner, the pricing set for
such Equipment Enhancements will be at the Vendor's standard charges
subject to the applicable discounts set forth in the B Exhibits.
(v) All change notifications for Equipment Upgrades and
Equipment Enhancements provided by the Vendor to the Owner pursuant to the
terms of this Contract must contain the following information: (A) a
detailed description of the change; (B) the reason for the change; (C) the
effective date of the change; and (D) the implementation schedule for such
change, if appropriate.
14.2.2 Notice. The Vendor shall give, or shall cause to be given
------
to, the Owner not less than ninety (90) days prior written notice of the
introduction of any Equipment Enhancement or any Equipment Combined Release. In
addition, in each February and August of each year during the Term of this
Contract, the Vendor shall provide the Owner with a forecast of future Equipment
Enhancements to the Equipment or Equipment Combined Releases then currently
being developed by or on behalf of the Vendor.
14.2.3 Installation, Testing and Acceptance The Installation and
------------------------------------
testing of the Equipment by the Vendor and the acceptance thereof by the Owner
shall be performed in accordance with the Exhibits and pursuant to the
Milestones contained in the Exhibits.
14.2.4 Equipment Fixes. In the event that any Equipment Upgrade or
---------------
Equipment Enhancement, directly or indirectly, supplied by the Vendor during the
appropriate [*] or [*] period following the Effective Date or during [*] period
following the date of shipment of such Equipment Upgrade or Equipment
Enhancement, has the effect of preventing any System or any part thereof from
satisfying, or performing in accordance with, the Specifications or otherwise
adversely affects the functionality, interoperability or features of any System,
or any part thereof then the Vendor shall without any charge to the Owner
promptly retrofit or take such other corrective action as may be necessary to
assure that any System or any such affected part, as modified to include each
such Equipment Upgrade and Equipment Enhancement, shall satisfy, and perform in
accordance with, the Specifications and restore all pre-existing functionality
and features as well as provide any features and functionality provided by any
of the foregoing modifications.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
46
<PAGE>
14.2.5 Equipment Backwards Compatibility Warranty. The Vendor
------------------------------------------
represents and warrants (the "Equipment Backwards Compatibility Warranty")
------------------------------------------
that each New Equipment Release will be Backwards Compatible, provided that it
is implemented within the specified time provided with each New Equipment
Release. [***] Notwithstanding the foregoing, the Equipment Backwards
Compatibility Warranty does not apply to Products developed beyond 3G1X which
are developed in accordance with standards not yet finalized as of the date
hereof.
14.2.6 3G1X. [***]
----
14.2.7 1.1 ASIC Product. The prices set forth in the B Exhibits
----------------
for a BTS and channel elements includes a BTS equipped with the hardware
component for Vendor's "1.1 ASIC Product". Each BTS furnished by Vendor
----------------
hereunder will, at no additional charge to Owner beyond the BTS prices set forth
in Exhibit B-1, be equipped at the time of shipment, or be retrofitted to
include after shipment, at Vendor's sole expense, such hardware component of
Vendor's 1.1 ASIC Product.
14.3 Notice of Developments.
----------------------
14.3.1 Vendor Developments. The Vendor shall provide the Owner, or
-------------------
cause to be provided to the Owner, through the Owner's chief executive officer,
with reasonable written notice of any Product developments, innovations and/or
technological advances (collectively "Vendor Developments") relevant to the
-------------------
System simultaneous to giving such notice to any other customer or otherwise
making any such Vendor Development public; provided that the Vendor shall not be
-------- ----
obligated to provide the Owner such notice before any other customer if doing so
would breach any contractual obligation to any other customer, provided further
that any such notice need not include any information originated by another
customer of Vendor which is proprietary to such other customer of Vendor. For
the purposes of this subsection the term "Vendor" includes the Vendor and its
affiliates and subsidiaries.
14.3.2 Participation in Testing. The Owner has the right, but not
------------------------
the obligation, to witness and/or participate in any initial testing; provided
--------
that any such initial testing of Vendor Developments shall be subject to (i)
----
scheduling as reasonably determined by the Vendor, (ii) the qualification that
the Owner's System meets the technical
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
47
<PAGE>
requirements for the testing of such Vendor Development as reasonably determined
by the Vendor (or otherwise that the Owner is willing to update such System to
meet such requirements), (iii) the Owner's acknowledgment that it shall be able
to provide the resources necessary to implement the initial testing for such
Vendor Development, and (iv) the Owner and the Vendor executing a verification
office testing agreement that identifies the scope, terms, pricing,
responsibilities and schedule related to the initial testing of such Vendor
Development. The Vendor shall provide the Owner at least thirty (30) days'
prior written notice of its intent to test any such Vendor Development and upon
the Owner's written request the Vendor shall allow the Owner to participate in
such testing upon terms and in a testing environment reasonably acceptable to
the parties at such time. Such rights shall not apply to a Vendor Development
originated by another customer of Vendor which includes information which is
proprietary to such other customer.
14.3.3 Quarterly Notices. Vendor shall make reasonable efforts to
-----------------
collect and distribute on a quarterly basis a list of new Software bugs,
problems, fixes, etc., provided that Vendor shall not be required to distribute
confidential information of any other customer.
SECTION 15. INTELLECTUAL PROPERTY
15.1 Intellectual Property. Neither Owner nor Vendor shall publish or use
---------------------
any advertising, sales promotion, press releases or publicity matters relating
to this Contract without the prior written approval of the other, in accordance
with Section 26.13.
15.2 Infringement. (a) The Vendor agrees that it shall defend, indemnify
------------
and hold harmless, at its own expense, all suits and claims against the Owner
for infringement or violation of any patent, trademark, copyright, trade secret
or other intellectual property rights of any third party enforceable in the
United States or in any other territory where Vendor has approved the deployment
or use of Products under this Contract (collectively, "Intellectual Property
---------------------
Rights"), covering, or alleged to cover, the Products or any component thereof.
------
The Vendor agrees that it shall pay all sums, including without limitation,
reasonable attorneys' fees and other costs incurred at Vendor's written request
or authorization, which, in defense of, by final judgment or decree, or in
settlement of any suit or claim to which the Vendor agrees, may be assessed
against, or incurred by, the Owner on account of such infringement or violation,
provided that the Owner shall cooperate in all reasonable respects with the
Vendor and its attorneys in the investigation, trial and defense of such lawsuit
or action and any appeal arising therefrom; provided, however, that the Owner
may, at its own cost, participate in the investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom. The parties shall
cooperate with each other in any notifications to insurers. If a claim for
Losses (a "Claim") is to be made by a party entitled to indemnification
-----
hereunder against the Vendor, the party claiming such indemnification shall give
written notice (a "Claim Notice") to the Vendor as soon as practicable after the
------------
party entitled to indemnification becomes aware of any fact, condition or event
which may give rise to Losses for which indemnification may be sought under this
Agreement, provided, however, no delay on the part of the Owner in
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notifying the Vendor shall relieve the Vendor from any obligation hereunder
unless (and then solely to the extent) the Vendor is thereby materially
prejudiced. If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity hereunder, written notice thereof shall be
given to the Vendor as promptly as practicable (and in any event within fifteen
(15) calendar days after the service of the citation or summons). The Vendor
shall be entitled, if it so elects, (i) to defend such lawsuit or action, (ii)
to employ and engage attorneys of its own choice to handle and defend the same,
at the Vendor's cost, risk and expense, and (iii) to compromise or settle such
Claim, which compromise or settlement shall be made only with the written
consent of the Owner (which may not be unreasonably withheld), unless such
compromise or settlement includes an unconditional release of any claims against
the Owner in which event such written consent of the Owner shall not be
required. If the Vendor fails to assume the defense of such Claim within
fifteen (15) calendar days after receipt of the Claim Notice, the Owner against
which such Claim has been asserted will (upon delivering notice to such effect
to the Vendor) have the right to undertake, at the Vendor's cost and expense,
the defense, compromise or settlement of such Claim on behalf of and for the
account and risk of the Vendor. In the event the Owner assumes the defense of
the Claim, the Owner will keep the Vendor reasonably informed of the progress of
any such defense, compromise or settlement. The Vendor shall be liable for any
settlement of any action effected pursuant to and in accordance with this
Agreement and for any final judgment (subject to any right of appeal), and the
Vendor agrees to indemnify and hold harmless the Owner from and against any
Losses by reason of such settlement or judgment.
(b) The Vendor's obligation under this subsection shall not extend to
alleged infringements or violations that arise because the Products provided by
the Vendor are used in combination with other products furnished by third
parties and where any such combination was not installed, recommended or
approved by the Vendor.
15.3 Vendor's Obligation to Cure. If in any such suit so defended,
---------------------------
all or any part of the Products or any component thereof is held to constitute
an infringement or violation of Intellectual Property Rights of others and its
use is enjoined, or if in respect of any claim of infringement or violation the
Vendor deems it advisable to do so, the Vendor shall at its sole cost, expense
and option take one or more of the following actions: (i) procure the right to
continue the use of the same without interruption for the Owner; (ii) replace
the same with non-infringing Products that meets the Specifications in
accordance with the terms of this Contract; or (iii) modify said Products, any
System or any component thereof so as to be non-infringing, provided that the
Products, any System or any component thereof as modified meets all of the
Specifications. In the event that the Vendor is not able to cure the
infringement pursuant to clause (i), (ii) or (iii) in the immediately preceding
sentence, in addition to the other rights and remedies provided in this Section
15, the Vendor shall refund to the Owner the full purchase price paid by the
Owner for such infringing Product or feature, and the Owner shall be under no
obligation to return to the Vendor such infringing Product or feature regardless
of whether, or by what means, the Owner, on its own or otherwise, subsequently
cures such infringement, unless Owner is directed to do so by court order.
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15.4 Vendor's Obligations. The Vendor's obligations under this Section 15
--------------------
shall not apply to any infringement or violation of Intellectual Property Rights
caused by unauthorized modification of the Products, any System or any component
thereof by the Owner, or arises from adherence to instructions to apply Owner's
trademark, trade name or other company identification to a Product, or any
infringement caused solely by the Owner's use and maintenance of the Products
other than in accordance with the Specifications, except as authorized or
permitted by the Vendor. The Owner shall indemnify the Vendor against all
liabilities and costs, including reasonable attorneys' fees, for defense and
settlement of any and all claims against the Vendor for infringements or
violations based upon this subsection.
15.5 Liability of Vendor. The Liability of Vendor 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 Contract shall be limited to the specific undertakings
contained in this Section 15.
SECTION 16. DELAY
16.1 Liquidated Damages. The parties agree that damages for delay are
------------------
difficult to calculate accurately and not reasonably determinable at the time of
execution of this Contract, and, therefore, agree that liquidated damages (the
"Liquidated Damages") shall be paid for non-performance or late performance of
-------------------
the Vendor's obligations to achieve a Guaranteed Substantial Completion Date for
reasons not otherwise excused by Force Majeure, Owner's failure to satisfy its
obligations set out in this Contact. The parties agree that Liquidated Damages
are intended to compensate Owner for the delayed or late performance by the
Vendor and are not a penalty. For purposes of this Contract, Liquidated Damages
means the monetary payments, price discounts, credits and supply of additional
Products described in Section 16.2 below.
16.2 Delay and Default. In the event the Vendor fails to achieve (other
-----------------
than as permitted by this Contract) the Substantial Completion of a System on or
before the Guaranteed Substantial Completion Date for such System or during a
ten (10) day cure period following such date, the Vendor shall pay, weekly in
arrears, for the next [*] commencing on the eleventh day after the Guaranteed
Substantial Completion Date, Liquidated Damages to the Owner in an amount equal
to [*] (pro-rated on a daily basis for periods of time less than one week) of
the total amount of all Purchase Orders relating to the System with respect to
which the Vendor has so failed, based on the number of days elapsed after a ten
(10) day cure period following the Guaranteed Substantial Completion Date and
before the achievement of Substantial Completion; provided that in the event
that Substantial Completion is not achieved prior to the expiration of such [*]
period, thereafter Vendor shall pay, weekly in arrears, additional Liquidated
Damages to the Owner in an amount equal to [*] (pro-rated on a daily basis for
periods of time less than one week) of the total amount of all Purchase Orders
relating to the System with respect to which the
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Vendor has so failed, based on the number of days elapsed after the [*] plus ten
(10) day cure period following the Guaranteed Substantial Completion Date and
before the achievement of Substantial Completion; provided that in no event
shall the amount of such Liquidated Damages so paid in respect of a System
exceed [*] of the total amount of all Purchase Orders relating to the System
with respect to which the Vendor has so failed.
16.2.1 With respect to Markets 1-13 listed on Exhibit S, if Vendor fails
to achieve Substantial Completion on or by the Guaranteed Substantial Completion
Date, the price for Products to be purchased by Owner for the next System, after
Market 13 listed on Exhibit S, will be reduced by [*] of the prices for Products
(but not Expansions or Services) set forth in the B Exhibits for the System in
which Vendor failed to achieve the Guaranteed Substantial Completion Date, plus
an additional [*] price reduction for each full month thereafter that such
failure to achieve Substantial Completion continues. For example, if Vendor
achieves Substantial Completion by the Guaranteed Substantial Completion Date in
11 of the original 13 Markets, but one of those Systems is two (2) full months
late and the second of the Systems is one (1) full month late, in achieving
Substantial Completion, then the fourteenth (14th) System to be deployed by
Owner (the first growth market beyond the original 13 Markets) would receive a
discount equal to [*] of the price of the Products (but not Expansions or
Services) purchased by Owner in the twelfth (12th) Market ([*] discount for
missing the Guaranteed Substantial Completion Date plus [*] discount for missing
the first full month, plus [*] discount for missing the second full month) and
the fifteenth (15th) System to be deployed by Owner would receive a discount
equal to [*] of the price of the Products (but not Expansions or Services)
purchased by Owner in the thirteenth (13th) Market. The total discount pursuant
to this paragraph applied to the Products purchased for any System shall be
capped at [*] of the price of the Products for the System in which Vendor failed
to achieve the Guaranteed Substantial Completion Date.
If Vendor fails to achieve Substantial Completion of a System on or before
the Guaranteed Substantial Completion Date with respect to any of the original
13 Systems, at no cost to Owner Vender shall provide all Installation and
Integration Services and Optimization Services, required by Owner, including
Services rendered during overtime and holiday periods, to ensure that
Substantial Completion of the System is accomplished with the utmost expedience.
Vendor will extend the Warranty Period for the Products, excluding Expansions,
to be deployed in each such delayed System, by a period of time that is twice
the duration of the interval between the Guaranteed Substantial Completion Date
and the date Substantial Completion is achieved. For example, if Substantial
Completion in Memphis occurs two full months after the Guaranteed Substantial
Completion Date, the Warranty Period for the Products initially deployed in
Memphis will be extended for an additional four (4) months. Vendor will also
provide Owner with a Cell-on-Wheels at no charge for each of the original 13
Systems where Vendor fails to achieve Substantial Completion by the Guaranteed
Substantial Completion Date, and with a credit to be applied for one free base
station to be deployed in any of the growth Systems beyond the original 13
Systems, for each month that Vendor fails to achieve
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Substantial Completion by the Guaranteed Substantial Completion Date for the
original 13 Systems. The foregoing Cell-on-Wheels and free base stations will
be configured and equipped (including ancillary and supporting Equipment
associated with a Site) in the same manner as is typical for the other base
stations ordered by Owner for such growth market System.
16.3 System Capacity Guarantee. [***]
-------------------------
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
53
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[***]
16.4 Limitation. The foregoing provisions concerning Liquidated Damages
----------
shall not be deemed to limit the amount payable by the Vendor to the Owner for
breach of contract, except for amounts payable on account of delay as aforesaid,
provided, however that the payment of Liquidated Damages shall be Owner's sole
remedy for the delay giving rise to the Vendor's obligation to pay the
Liquidated Damages.
16.5 Early Completion Bonus. With respect to a System, Vendor shall be
----------------------
entitled to an early completion bonus from the Owner in the event that
Substantial Completion with respect to such System occurs on or prior to the
date that is [*] prior to the Guaranteed Substantial Completion Date for such
System. Such early completion bonus shall be equal to [*] (pro-rated on a daily
basis for periods of time less than one week) of the total amount of all
Purchase Orders relating to such System, based on the number of days that
Substantial Completion occurs prior the date that is [*] prior to the Guaranteed
Substantial Completion Date for such System.
SECTION 17. FORCE MAJEURE
17.1 Excusable Delay. (a) If the performance of this Contract, or of any
---------------
obligation hereunder except for the obligations set forth in Section 5 is
prevented, restricted or interfered with by reason of fires, breakdown of plant,
labor disputes, embargoes, government ordinances or requirements, civil or
military authorities, acts of God or of the public enemy, acts or omissions of
carriers, inability to obtain necessary materials or services from suppliers, or
other causes beyond the reasonable control of the party whose performance is
affected ("Force Majeure"), then the party affected, upon giving prompt notice
to the other party, shall be excused from such performance on a day-for-day
basis to the extent of such prevention, restriction, or interference (and the
other party shall likewise be excused from performance of its obligations on a
day-for-day basis to the extent such party's obligations relate to the
performance so prevented, restricted or interfered with); provided that the
party so affected shall use reasonable efforts to avoid or remove such cause of
non-performance and both parties shall proceed to perform their obligations with
dispatch whenever such causes are removed or cease.
(b) The party claiming the benefit of excusable delay hereunder shall
(i) promptly notify the other party of the circumstances creating the failure or
delay and provide a statement of the impact of such party failure or delay and
(ii) use reasonable
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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efforts to avoid or remove such causes of nonperformance, excusable failure or
delay. If an event of Force Majeure prevents the Vendor from performing its
obligations under this Contract for a period exceeding sixty (60) days, the
Owner may, upon prior written notice to the other party, terminate this
Contract.
(c) In the event of a Force Majeure which the party claiming relief for
such event has used all best efforts to resolve in accordance with the terms of
this Contract, upon the written request of either party, the other party shall
in good faith negotiate modifications, to the extent reasonable and necessary,
in scheduling and performance criteria in order to reasonably address the impact
of such Force Majeure.
SECTION 18. WARRANTIES
18.1 Equipment and Services Warranty. Vendor warrants that, with respect
-------------------------------
to each System, for a period of two (2) years from the date of Substantial
Completion, provided, however that if prior to Final Acceptance a Major Outage
occurs, the two (2) year period shall be extended by the number of days elapsed
between Substantial Completion and the date the Owner signs the Certificate of
Final Acceptance (as so determined, the "Warranty Period"), all Equipment and
---------------
Services furnished under this Contract with respect to such System will be free
of Defects and Deficiencies and shall conform to the applicable portions of the
Specifications (the "Equipment and Services Warranty"), provided, however, that
-------------------------------
with respect to those Services for which a warranty is set forth in an Exhibit,
the warranty contained in the Exhibit shall supersede the general Services
warranty contained in this Section 18.1. With respect to third-party
manufactured Products which are not a part of a Core System, Vendor shall
furnish such Products only on a pass-through warranty basis; provided, however,
that Vendor shall identify such Products to Owner before acceptance of any
Purchase Order which includes any such Products. The terms of the warranty
applicable to such Products shall be provided in an addendum to the Purchase
Order. Except as noted in the B Exhibits, all Products referenced in the B
Exhibits qualify as Vendor-warranted Products. The Vendor's obligations with
respect to the Equipment and Services Warranty shall be to attempt first to
repair or replace at no additional cost, any defective Equipment or correct any
deficient Services. If, after using its best efforts to repair or replace such
Product and after consultation with and with the consent of Owner, which consent
shall not be unreasonably withheld, Vendor determines that it is unable to
repair, replace or otherwise correct such defect, Vendor shall provide a credit
or refund based on the original purchase price, and installation charges if
installed by Vendor. If, as a result of the Defect and Deficiency, the Product
fails to operate in accordance with the Specifications which causes the System
to fail to materially operate in accordance with its Specifications, a refund
shall be paid to the Owner on account of the purchase price for the total
System, less a pro-rata discount calculated with regard to the period of time
during the Warranty Period that Owner operated the System in Commercial Service.
For purposes of calculating such pro rata discount, the period of time the Owner
would have been able to operate the System in Commercial Service shall be ten
(10) years from Substantial Completion for the 5 ESS(R) switch and seven (7)
years from Substantial Completion for all other Products. In the event that
Vendor pays a refund hereunder, Owner shall return such Products to Vendor at
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Vendor's sole cost and expense. The Warranty Period for all Equipment or
Services repaired, replaced or corrected under the Equipment and Services
Warranty shall be the longer of (i) one (1) year from the date of delivery of
the repaired or replacement Equipment or from the completion of the corrected
Services, as applicable, or (ii) or the unexpired term of the Warranty Period.
The Warranty Period for Equipment purchased as spares shall be two (2) years
from installation of such Equipment.
For those Products not readily returnable by Owner, or where Owner cannot
remove and reinstall the Products without incurring significant time and
expense, and where Vendor elects to repair or replace the Product, Vendor shall
repair or replace the Product at Owner's Site. In the event Vendor does the
repair work at Owner's site, Vendor shall be responsible for replacement of
cable and wire Products, and for reasonable Site restoration. If Vendor has
elected to repair or replace a defective Product, and the Product is readily
returnable by Owner without incurring significant work or expense, Owner is
responsible for removing and reinstalling the Products. Products returned for
repair or replacement will be accepted by Vendor only in accordance with its
instructions and procedures for such returns. The transportation expense
associated with returning such Product to Vendor shall be borne by Owner.
Vendor shall pay the cost of transportation of the repaired or replacing Product
to the return destination designated by Owner. Defective or nonconforming
Products or parts which are replaced hereunder shall become Vendor's property.
Vendor may use either the same or functionally equivalent new, remanufactured,
reconditioned or refurbished Products or parts in the furnishing of repairs or
replacements under this Contract, provided that such Products satisfy the
Specifications.
18.2 Expansions Warranty. Vendor warrants that, with respect to Products
-------------------
and Services constituting Expansions (including Expansions to a System, or
Expansions or growth not part of a System, and all other purchased Products)
furnished under this Contract will be free of Defects and Deficiencies and shall
conform the applicable portions of the Specifications (the "Expansions
----------
Warranty"). The warranty period with respect to such Products and Services
--------
shall be two (2) years from the date Owner signs the Notice of Installation and
Integration Certificate (the "Expansions Warranty Period"). With respect to
--------------------------
third-party manufactured Products which are not a part of a Core System, Vendor
shall furnish such Products only on a pass-through warranty basis; provided,
however, that Vendor shall identify such Products to Owner before acceptance of
any Purchase Order which includes any such Products. The terms of the warranty
applicable to such Products shall be provided in an addendum to the Purchase
Order. Except as noted in the B Exhibits, all Products referenced in the B
Exhibits qualify as Vendor-warranted Products. The Vendor's obligations with
respect to the Expansions Warranty shall be to attempt first to repair or
replace at no additional cost, any defective Equipment or correct any deficient
Services. If, after using its best efforts to repair or replace such Product
and after consultation with and with the consent of Owner, which consent shall
not be unreasonably withheld, Vendor determines that it is unable to repair,
replace or otherwise correct such defect, Vendor shall provide a credit or
refund based on the original purchase price, and installation charges if
installed by Vendor. The warranty period for all Equipment or Services repaired,
replaced or corrected under the Expansions Warranty shall be the longer of (i)
one (1) year from the date of delivery of the repaired or replacement Equipment
or
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from the completion of the corrected Services, as applicable, or (ii) or the
unexpired term of the Expansions Warranty Period. The Warranty Period for
Equipment purchased as spares shall be two (2) years from installation of such
Equipment.
For those Products not readily returnable by Owner, or where Owner cannot
remove and reinstall the Products without incurring significant time and
expense, and where Vendor elects to repair or replace the Product, Vendor shall
repair or replace the Product at Owner's Site. In the event Vendor does the
repair work at Owner's site, Vendor shall be responsible for replacement of
cable and wire Products, and for reasonable Site restoration. If Vendor has
elected to repair or replace a defective Product, and the Product is readily
returnable by Owner without incurring significant work or expense, Owner is
responsible for removing and reinstalling the Products. Products returned for
repair or replacement will be accepted by Vendor only in accordance with its
instructions and procedures for such returns. The transportation expense
associated with returning such Product to Vendor shall be borne by Owner.
Vendor shall pay the cost of transportation of the repaired or replacing Product
to the return destination designated by Owner. Defective or nonconforming
Products or parts which are replaced hereunder shall become Vendor's property.
Vendor may use either the same or functionally equivalent new, remanufactured,
reconditioned or refurbished Products or parts in the furnishing of repairs or
replacements under this Contract, provided that such Products satisfy the
Specifications.
18.3 Software Warranty. Vendor warrants that, with respect to each System
-----------------
for the Warranty Period, all Software will be free of Defects and Deficiencies
and shall conform to the applicable portions of the Specifications (the
"Software Warranty"). The Vendor's obligations with respect to the Software
------------------
Warranty shall be to attempt first to repair or replace at no additional cost,
any defective Software. If, after using its best efforts to repair or replace
such Software and after consultation with and with the consent of Owner, which
consent shall not be unreasonably withheld, Vendor determines that it is unable
to repair, replace or otherwise correct such defect, Vendor shall provide a
credit or refund based on the original purchase price, and installation charges
if installed by Vendor. If, as a result of the Defect and Deficiency, the
Software fails to operate in accordance with the Specifications which causes the
System to fail to materially operate in accordance with its Specifications, a
refund shall be paid to Owner on account of the purchase price for the total
System, less a pro rata discount calculated with regard to the period of time
during the Warranty Period that Owner operated the System in Commercial Service.
For purposes of calculating such pro rata discount, the period of time the Owner
would have been able to operate the System in Commercial Service shall be ten
(10) years from Substantial Completion for the 5 ESS(R) switch and seven (7)
years from Substantial Completion for all other Products. In the event that
Vendor pays a refund hereunder, Owner shall return such Products to Vendor. The
warranty period for all Software so corrected or replaced under the Software
Warranty shall be the longer of one (1) year from the date of delivery of the
repaired or replacement Software, or (ii) or the unexpired term of the Warranty
Period. Vendor shall be solely responsible for all costs and expenses incurred
by Owner or Vendor in connection with the de-installation, removal and
transportation of defective Software under the Software Warranty and for the
transportation and installation of repaired, corrected or replacement Software,
including without limitation any additional or upgraded
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Equipment or processing capability necessary to run or operate such repaired,
corrected or replacement Software. The Warranty Period with respect to Software
Maintenance Releases, Software Upgrades, Software Enhancements and Software
Combined Releases shall be two (2) years from the successful installation of
such Software Maintenance Releases, Software Upgrades, Software Combined
Releases and Software Enhancements.
18.5 Year 2000 Warranty. Vendor warrants that, notwithstanding any other
------------------
warranty provided to Owner pursuant to this Contract, during the period
commencing on the date that the applicable Software Warranty Period commences
and ending on January 1, 2004, the Software will (a) process calendar dates
falling on or after January 1, 2000, with substantially the same functionality
as such Software processes calendar dates falling on or before December 31,
1999, and (b) provide substantially the same functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000, as
it provides with respect to the introduction of records containing dates falling
on or before December 31, 1999 (the "Year 2000 Warranty"). All of the foregoing
------------------
functionality shall be known as "Year 2000 Capability". In the event Owner has
--------------------
or purchases more than one version of Software, such versions of Software, if
they are intended by Vendor to interoperate, will be compatible and interoperate
in such manner as to process between them, as applicable, date related data
correctly as described herein. All of the foregoing functionality shall be
known as "Year 2000 Interoperability". The foregoing sets forth an additional
--------------------------
warranted specification for Software developed by Vendor that Vendor has
identified as having Year 2000 Capability. The failure of such Software to meet
such specification during the Year 2000 Warranty Period shall, to the extent the
Software remains then subject to warranty protection, entitle Owner to the
remedies set out in this Section 18.5. Nothing in the foregoing shall be deemed
to make Vendor responsible for the Year 2000 Capability or Year 2000
Interoperability of any third party software interoperating or intended to
interoperate with Software developed by Vendor. Owner and or the manufacturer
or other supplier of such third party software shall be responsible for such
compliance and assuring the ability of such software to successfully operate
while interoperating with Software developed by Vendor.
18.6 Warranty Claim Procedures. (a) If the Owner claims a breach of any
-------------------------
warranty, it shall notify the Vendor of the claimed breach within a reasonable
time after its determination that a breach has occurred. The Owner shall allow
the Vendor to inspect the Equipment, Software, Services, or the System, as the
case may be, on-site in order to effect the necessary repairs.
(b) The Vendor shall respond to such warranty claims for warranty Services
in accordance with the procedures outlined in Exhibit N.
18.7 Technical Assistance. The Vendor shall maintain a technical
--------------------
assistance center and shall have technical support available to the Owner in
accordance with the requirements set forth in Exhibit N.
18.8 Scope of Warranties. Unless otherwise stated herein, the Warranties
-------------------
shall not apply to:
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18.8.1 defective conditions or nonconformities to the extent
resulting from the following, if not consistent with applicable Specifications:
unauthorized Owner modifications, misuse, neglect, accident, abuse, improper
wiring, repairing, splicing, alteration, installation, storage or maintenance
failure of Owner to apply previously applicable Vendor modifications or
corrections;
18.8.2 any Equipment, Services or Software damaged by accident
or disaster, including without limitation, fire, flood, wind, water, lightning
or power failure other than to the extent that any such Equipment, Services or
Software should in accordance with the Specifications be able to withstand any
such events; or
18.8.3 non-integral items normally consumed in operation or
which has a normal life inherently shorter than the Warranty Periods (e.g.,
----
fuses, lamps, magnetic tape); or
18.8.4 damages or defects resulting directly from third party
equipment, provided that this shall in no event limit the Vendor's obligations
as to interoperability pursuant to the terms of this Contract;
18.8.5 Equipment which have had their serial numbers or months
and year of manufacture removed or obliterated by the Owner; or
18.8.6 failures or deficiencies in BTS performance or System
optimization resulting solely from changed environmental conditions or
unauthorized changes to the System by Owner, or changes not consented to by
Owner including, but not limited to, the growth of trees and other foliage, the
erection of buildings, and interference from third party radio transmissions not
otherwise engineered for by the Vendor;
except when any such damage or defects are made, done or caused by the Vendor or
any of its Subcontractors, their respective agents and employees.
18.9 Third Party Warranties. If the Vendor purchases or subcontracts for
----------------------
the manufacture of any part of a System or the performance of any of the
Services to be provided hereunder from a third party, the warranties given to
the Vendor by such third party shall inure, to the extent assigned to the Owner
pursuant to this Section 18 or permitted by law, to the benefit of the Owner,
and the Owner shall have the right, at its sole discretion, to enforce such
warranties directly and/or through the Vendor. The warranties of such third
parties shall be in addition to and shall not, unless otherwise expressly stated
herein, be in lieu of any warranties given by the Vendor under this Contract.
18.10 Additional Sites. In the event that under the remedy provisions of
----------------
this Section 18 the Vendor is required to provide additional MSC and/or BTS's
requiring additional Sites, the Owner shall be responsible for all Site
Acquisition.
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18.11 EXCLUSIVE REMEDIES. THE FOREGOING EQUIPMENT, SERVICES, SOFTWARE
------------------
AND EXPANSIONS WARRANTIES AND REMEDIES ARE EXCLUSIVE FOR THE PURPOSES OF ANY
BREACH BY THE VENDOR OF ANY SUCH WARRANTY 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.
SECTION 19. INSURANCE
19.1 Insurance. The Vendor shall maintain insurance in accordance with
---------
the provisions set forth in Exhibit Q.
SECTION 20. INDEMNIFICATION AND LIMITATION OF LIABILITY
20.1 Indemnity. Vendor agrees to indemnify, defend and hold harmless
---------
Owner and its affiliates and their respective directors, officers, employees,
agents, successors and assigns, from Losses and threatened Losses arising from,
in connection with, or based on allegations of, any of the following:
(a) Vendor's failure to observe or perform any duties or obligations
to Subcontractors or any third parties within the reasonable
contemplation of this Contract;
(b) the death or bodily injury of any agent, employee, customer,
business invitee or any other person caused by the tortious conduct
(including without limitation negligence, willful misconduct or
breach of warranty) or strict liability of Vendor, any
Subcontractor or its or their respective employees, contractors,
agents or representatives;
(c) the damage, loss or destruction of any real or tangible personal
property caused by the tortious conduct (including without
limitation negligence, willful misconduct or breach of warranty) or
strict liability of Vendor, any Subcontractor or its or their
respective employees, contractors, agents or representatives; or
(d) any claim, demand, charge, action, cause of action or other
proceeding asserted against Owner but arising out of or resulting
from an act or omission of Vendor, any Subcontractor or its or
their respective employees, contractors, agents or representatives
in its or their respective capacities as an employer.
20.2 Claim for Losses. If a Claim is to be made by a party entitled to
----------------
indemnification hereunder against the Vendor, the party claiming such
indemnification
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shall give a Claim Notice to the Vendor as soon as practicable after the party
entitled to indemnification becomes aware of any fact, condition or event which
may give rise to Losses for which indemnification may be sought under this
Agreement, provided, however, no delay on the part of the Owner in notifying the
Vendor shall relieve the Vendor from any obligation hereunder unless (and then
solely to the extent) the Vendor is thereby materially prejudiced. If any
lawsuit or enforcement action is filed against any party entitled to the benefit
of indemnity hereunder, written notice thereof shall be given to the Vendor as
promptly as practicable (and in any event within fifteen (15) calendar days
after the service of the citation or summons). The Vendor shall be entitled, if
it so elects, (i) to defend such lawsuit or action, (ii) to employ and engage
attorneys of its own choice to handle and defend the same, at the Vendor's cost,
risk and expense, and (iii) to compromise or settle such Claim, which compromise
or settlement shall be made only with the written consent of the Owner (which
may not be unreasonably withheld), unless such compromise or settlement includes
an unconditional release of any claims against the Owner in which event such
written consent of the Owner shall not be required. If the Vendor fails to
assume the defense of such Claim within fifteen (15) calendar days after receipt
of the Claim Notice, the Owner against which such Claim has been asserted will
(upon delivering notice to such effect to the Vendor) have the right to
undertake, at the Vendor's cost and expense, the defense, compromise or
settlement of such Claim on behalf of and for the account and risk of the
Vendor. In the event the Owner assumes the defense of the Claim, the Owner will
keep the Vendor reasonably informed of the progress of any such defense,
compromise or settlement. The Vendor shall be liable for any settlement of any
action effected pursuant to and in accordance with this Agreement and for any
final judgment (subject to any right of appeal), and the Vendor agrees to
indemnify and hold harmless the Owner from and against any Losses by reason of
such settlement or judgment.
20.3 Limitation On Liability. THE ENTIRE LIABILITY OF VENDOR FOR ANY
-----------------------
CLAIM, LOSS, DAMAGE OR EXPENSE OF OWNER OR ANY OTHER ENTITY ARISING OUT OF THIS
CONTRACT, OR THE USE OR PERFORMANCE OF ANY PRODUCT OR SERVICE, WHETHER IN AN
ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE,
INDEMNITY OR STRICT LIABILITY, SHALL BE EXPRESSLY SET FORTH HEREIN AND AS
FOLLOWS:
1. FOR INFRINGEMENT, THE REMEDIES SET FORTH IN SECTION 15;
2. FOR THE NON-PERFORMANCE OF PRODUCTS OR SERVICES DURING THE WARRANTY
PERIOD, THE REMEDIES SET FORTH IN THE APPLICABLE CLAUSE OF SECTION 18;
3. FOR DELAYS ATTRIBUTABLE TO FAILURE TO ACHIEVE A GUARANTEED SUBSTANTIAL
COMPLETION DATE OR FAILURE TO SATISFY THE CAPACITY GUARANTEE, THE
REMEDIES SET FORTH IN SECTION 16; PROVIDED THAT THE AGGREGATE OF THE
DAMAGES WITH RESPECT TO THE FOREGOING SHALL NOT
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EXCEED AN AMOUNT EQUAL TO [*] OF THE AGGREGATE AMOUNTS OF ALL PURCHASE
ORDERS WITH RESPECT TO ALL SYSTEMS; AND PROVIDED FURTHER THAT FOR
PURPOSES OF QUANTIFYING THE DAMAGES FOR A FAILURE TO SATISFY THE
CAPACITY GUARANTEE, THE ADDITIONAL EQUIPMENT FURNISHED BY THE VENDOR AT
NO CHARGE TO THE OWNER SHALL BE VALUED AT THE PURCHASE PRICES FOR SUCH
EQUIPMENT SET FORTH IN THIS CONTRACT AND, AS SO VALUED, SHALL BE DEEMED
TO BE DAMAGES FOR PURPOSES OF THIS SUBSECTION; AND
4. EXCEPT AS PROVIDED IN PARAGRAPH 5 BELOW, FOR EVERYTHING OTHER THAN AS
SET FORTH ABOVE, VENDOR'S TOTAL LIABILITY TO THE OWNER, WHETHER IN
CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND
STRICT LIABILITY) SHALL BE LIMITED TO AN AMOUNT EQUAL TO [*] OF THE
AGGREGATE AMOUNT OF ALL PURCHASE ORDERS ISSUED UNDER THIS CONTRACT.
5. THE LIMITATION SET FORTH IN PARAGRAPH 4 ABOVE SHALL NOT APPLY WITH
RESPECT TO (i) CLAIMS OF BREACH OF CONFIDENTIALITY, (ii) CLAIMS
SUBJECT TO INDEMNIFICATION PURSUANT TO SUBSECTION 20.1 ABOVE OR PATENT
INFRINGEMENT PROVISIONS OF THIS CONTRACT, OR (iii) FAILURE TO COMPLY
WITH APPLICABLE LAWS.
6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, NEITHER PARTY,
NOR THEIR AFFILIATES NOR THEIR EMPLOYEES, DIRECTORS, OFFICERS AND
SUPPLIERS SHALL BE LIABLE FOR THE OTHER PARTY'S INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, REVENUES OR SAVINGS ARISING
OUT OF THIS CONTRACT OR THE USE OR PERFORMANCE OF ANY PRODUCTS OR
SERVICES OR, EXCEPT AS SET FORTH ABOVE, FOR DAMAGES IN EXCESS OF THE
AGGREGATE AMOUNT OF ALL PAYMENTS MADE TO THE VENDOR HEREUNDER. THIS
CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
SECTION 21. REPRESENTATIONS AND WARRANTIES
21.1 Representations and Warranties of the Parties. The parties hereby
---------------------------------------------
represent and warrant as follows:
21.1.1 Due Organization. Each party represents and warrants to
----------------
the other party that the representing party is a corporation duly incorporated,
validly existing
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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and in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to own and operate its business and
properties and to carry on its business as such business is now being conducted
and is duly qualified to do business in all jurisdictions in which the
transaction of its business in connection with the performance of its
obligations under this Contract makes such qualification necessary or required.
21.1.2 Due Authorization; Binding Obligation. Each party
-------------------------------------
represents and warrants to the other party that the representing party has full
corporate power and authority to execute and deliver this Contract and to
perform its obligations hereunder, and the execution, delivery and performance
of this Contract by the representing party have been duly authorized by all
necessary corporate action on the part of the party; this Contract has been duly
executed and delivered by such party and is the valid and binding obligation of
the party enforceable in accordance with its terms, except as enforcement
thereof may be limited by or with respect to the following: (i) applicable
insolvency, moratorium, bankruptcy, fraudulent conveyance and other similar laws
of general application relating to or affecting the rights and remedies of
creditors; (ii) application of equitable principles (whether enforcement is
sought in proceedings in equity or at law); and (iii) provided the remedy of
specific enforcement or of injunctive relief is subject to the discretion of the
court before which any proceeding therefore may be brought.
21.1.3 Non-Contravention. Each party represents and warrants to
-----------------
the other party that the execution, delivery and performance of this Contract by
the representing party and the consummation of the transactions contemplated
hereby will not contravene its certificate of incorporation or by-laws and will
not conflict with or result in (i) a breach of or default under any material
indenture, mortgage, lease, agreement, instrument, judgment, decree, order or
ruling applicable to it or by which it or any of its properties is bound or
affected, or (ii) a breach by the representing party of any Applicable Law.
21.1.4 Regulatory Approvals. Vendor represents and warrants to
--------------------
Owner that all authorizations by, approvals or orders by, consents of, notices
to, filings with or other acts by or in respect of any Governmental Entity or
any other Person required in connection with the execution, delivery and
performance of this Contract by the Vendor have been obtained or shall be
obtained in due course.
21.1.5 Non-Infringement. Vendor represents and warrants to Owner
----------------
that to the best of Vendor's knowledge after reasonable investigation, as of the
Effective Date there are no actual claims or threatened or actual suits in
connection with patents or other Intellectual Property Rights that could
materially adversely affect it's the Vendor's ability to perform its obligations
under this Contract.
21.1.7 Requisite Knowledge. Vendor represents and warrants to
-------------------
Owner that that Vendor has all requisite knowledge, know-how, skill, expertise
and experience to satisfy its obligations in accordance with the terms of this
Contract.
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21.1.8 Financial Capacity. Vendor represents and warrants to
------------------
Owner that Vendor has the financial, management and manufacturing capacity and
capabilities to satisfy its obligations in a timely manner in accordance with
the terms of this Contract.
SECTION 22. TITLE AND RISK OF LOSS
22.1 Title. Title to Equipment shall pass to the Owner upon shipment of
-----
such Equipment to the location specified in the Exhibits.
22.2 Risk of Loss. Except as otherwise provided in Section 5.1 (a)(ii),
------------
Risk of loss or damage of any Products furnished to the Owner in connection with
this Contract shall pass from the Vendor to the Owner upon the later of (i)
delivery of such Products to the Sites; or, (ii) if Vendor is responsible for
Site Preparation, the date of the Site Preparation Substantial Completion
Certificate; provided that during the period a party has the risk of loss or
damage to an item, nothing in this Section 22.2 shall relieve the other party of
responsibility for loss or damage to the item resulting from the acts or
omissions of the other party, its employees, or agents.
SECTION 23. DISPUTE RESOLUTION
23.1 Dispute Resolution. In the event any controversy, claim, dispute,
------------------
difference or misunderstanding between the Owner and the Vendor arises out of or
relates to this Contract, any term or condition hereof, any of the Work to be
performed hereunder or in connection herewith, each party shall designate
managers to meet and negotiate in good faith in an attempt to amicably resolve
such controversy, claim, dispute, difference or misunderstanding in writing.
Such managers shall meet for this purpose within ten (10) Business Days, or such
other time period mutually agreed to by the parties, after written notice from
either party. If the parties are unable to resolve the controversy, claim,
dispute, difference or misunderstanding through good faith negotiations within
ten (10) Business Days after such meeting or meetings, each party shall, within
five (5) Business Days after the expiration of such ten (10) Business Day
period, prepare a written position statement which summarizes the unresolved
issues and such party's proposed resolution. Such position statement shall be
delivered by the Vendor to the Owner's Chief Executive Officer and by the Owner
to the Vendor's corresponding officer or representative for resolution within
(5) Business Days, or such other time period mutually agreed to by the parties.
23.2 Tolling. All applicable statutes of limitation shall be tolled to
-------
the extent permitted by Applicable Law while the dispute resolution procedures
specified in this Section 23.2 are pending, and nothing herein shall be deemed
to bar any party from taking such action as the party may reasonably deem to be
required to effectuate such tolling.
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SECTION 24. TERMINATION AND EVENTS OF DEFAULT
24.1 Termination Without Cause. The Owner may, at its sole option,
-------------------------
terminate this Contract, in its entirety, for convenience upon ninety (90) days'
prior written notice at any time. Any Purchase Orders issued prior to any such
termination above shall remain in effect and shall be fulfilled to the extent
that such orders are outstanding as of the date of such termination. In the
event that at the time of such termination the aggregate amount of all Purchase
Orders delivered to Vendor under this Contract (the "Aggregate Purchase Orders")
-------------------------
is less than One Hundred Million Dollars ($100,000,000), Owner shall pay to the
Vendor the lesser of (i) the difference between One Hundred Million Dollars
($100,000,000) and the Aggregate Purchase Orders; or (ii) the aggregate amounts
of the Products and Services furnished by Vendor pursuant to Exhibits B-2 and
B-3 prior to the date of such termination.
24.2 Termination for Cause. The Owner shall have the right to terminate
---------------------
this Contract in its entirety (except as otherwise set forth in clause (g)
below) without any penalty or payment obligation, except as provided in
subsection 24.5 below, upon the occurrence of any of the events of default (each
a "Vendor Event of Default") as set forth below:
-----------------------
(a) the Vendor (i) files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is not dismissed within
sixty (60) days of such involuntary filing, (ii) admits the material allegations
of any petition in bankruptcy filed against it, (iii) is adjudged bankrupt, (iv)
is unable generally to pay its debts as they mature, (v) makes a general
assignment for the benefit of its creditors, or if a receiver is appointed for
all or a substantial portion of its assets and is not discharged within sixty
(60) days after his appointment, or (vi) the Vendor commences any proceeding for
relief from its creditors in any court under any state insolvency statutes; or
(b) the Vendor disregards or violates any Applicable Laws or Applicable
Permits which has a material adverse effect on the business, financial condition
or operations of Owner or on any of its Systems ("Material Adverse Effect"); or
-----------------------
(c) the Vendor allows material Defects and Deficiencies to exist; or
(d) the Vendor fails to fulfill its obligations with respect to the
satisfaction, discharge or bonding of liens as set forth herein; or
(e) the Vendor abandons or ceases for a period in excess of thirty (30)
days its performance of the Work (except as a result of Force Majeure or a
casualty which is fully covered by insurance or as to which other provisions
reasonably acceptable to the Owner are being diligently pursued); or
(f) the Vendor assigns or subcontracts Work other than as provided for
in this Contract which has a Material Adverse Effect; or
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(g) the Vendor misses the Guaranteed Substantial Completion Date for any
given System by a period in excess of one hundred-fifty (150) days; provided
--------
that in such case the Owner shall have the right, but not the obligation, to
----
terminate this Contract with respect to only that System in which such delay
occurred; and provided further that such failure to achieve such date was not
caused by (i) a Force Majeure event and/or (ii) any act or omission of the
Owner; or
(h) if an event of Force Majeure prevents the Vendor from performing its
obligations under this Contract for a period exceeding sixty (60) days, the
Owner may, upon prior written notice to the Vendor, terminate this Contract in
accordance with the Force Majeure provisions above; or
(i) the Vendor otherwise materially breaches any provision of this
Contract.
24.3 Remedies. (a) If any of the Vendor Events of Default exists, the
--------
Owner may, in addition to and without prejudice to any other rights or remedies
of the Owner in this Contract or at law or in equity, terminate this Contract
upon written notice to the Vendor; provided, however, that the Owner shall have
first provided to the Vendor the following periods of notice and opportunity to
cure:
(i) in the case of a Vendor Event of Default specified in the
foregoing clauses (a) or (b), no notice or opportunity to cure shall be
required from the Owner; and
(ii) in the case of any other Vendor Event of Default, the Owner
shall have provided thirty (30) days' prior written notice, and the Vendor
shall have failed (i) to commence to cure the default within five (5)
Business Days of delivery of such notice, and (ii) to diligently pursue
such cure and remedy the breach entirely.
(b) If the Owner elects to terminate this Contract, the Owner may, in
addition to and without prejudice to any other rights or remedies of the Owner
in this Contract or of law or in equity, do one or more of the following:
(i) require Vendor, at no additional charge to Owner, to
complete or assist others with the completion of all ordered but unfinished
Work, including the sharing with Owner and others all relevant engineering
and design data, procurement data, manufacturing data, construction and
erection data, start-up and testing data, materials, and Products that
shall become part of such unfinished System and/or the specified Systems,
which Vendor would otherwise have been required to deliver to Owner
pursuant to the terms of this Contract but for the breach, under reasonably
appropriate non-disclosure agreements; or
(ii) direct that the Vendor assign its Subcontractor agreements
to the Owner without any change of price or conditions therein or penalty
or payment therefor.
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(c) In the event of any termination of this Contract by Owner in
connection with a Vendor Event of Default, Owner shall have no liability
for any failure to satisfy the Minimum Purchase Commitment prior to such
termination.
24.4 Discontinuance of Work. Upon such notification of termination, the
----------------------
Vendor shall immediately discontinue all of the Work (unless such notice of
termination directs otherwise), and, as more fully set forth in subsection
24.3(b), deliver to the Owner copies of all data, drawings, specifications,
reports, estimates, summaries, and such other information, and materials as may
have been accumulated by the Vendor in performing the Work, whether completed or
in process, which Vendor would otherwise have been required to deliver to Owner
pursuant to this Contract but for the breach. Furthermore, the Vendor shall
assign, assemble and deliver to the Owner all purchase orders and Subcontractor
agreements requested by the Owner.
24.5 Payments. If the Owner terminates this Contract pursuant to
--------
subsection 24.2, the Vendor shall not be entitled to receive further payment
other than payments due and payable under this Contract and not subject to
dispute prior to such termination (provided that any such disputed amounts shall
-------- ----
be paid by the Owner when and if such dispute is in fact resolved).
Notwithstanding anything herein to the contrary, the Owner may withhold
payments, if any, to the Vendor for the purposes of offset of amounts owed to
the Owner pursuant to the terms of this Contract until such time as the exact
amount of damages due the Owner from the Vendor is fully determined by a court
of competent jurisdiction.
24.6 Continuing Obligations. Termination of this Contract for any reason
----------------------
(i) shall not relieve either party of its obligations with respect to the
confidentiality of the Proprietary Information as set forth in subsection 26.18,
(ii) shall not relieve either party of any obligation which applies to it and
which expressly or by implication survives termination, and (iii) except as
otherwise provided in any provision of this Contract expressly limiting the
liability of either party, shall not relieve either party of any obligations or
liabilities for loss or damage to the other party arising out of or caused by
acts or omissions of such party prior to the effectiveness of such termination
or arising out of its obligations as to portions of the Work already performed
or of obligations assumed by the Vendor prior to the date of such termination.
24.7 Vendor's Right to Terminate. The Vendor shall have the option to
---------------------------
terminate this Contract without any penalty or payment obligations, other than
undisputed payment obligations outstanding as of the date of any such
termination pursuant to the terms of this Contract if:
(a) the Owner (i) files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is not dismissed within
sixty (60) days of such involuntary filing, (ii) admits the material allegations
of any petition in bankruptcy filed against it, (iii) is adjudged bankrupt, (iv)
makes a general assignment for the benefit of its creditors, or if a receiver is
appointed for all or a substantial portion of its assets and is not
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discharged within sixty (60) days after his appointment, or (v) commences any
proceeding for relief from its creditors in any court under any state insolvency
statutes, and any such filing, proceeding, adjudication or assignment as
described herein above shall otherwise materially impair the Owner's ability to
perform its obligations under this Contract; or
(b) the Owner fails to make payments of undisputed amounts due to the
Vendor pursuant to the terms of this Contract which are more than sixty (60)
days overdue, provided that such failure has continued for at least thirty (30)
-------- ----
days after the Vendor has notified the Owner of its right and intent to so
terminate on account of such overdue amount; and provided, further, that such
failure to make undisputed payments to Vendor shall not arise out of or relate
to a termination of or credit restrictions under the Vendor Financing, or
(c) the Owner materially breaches any provision of this Contract other
than a breach to which Section 24.7(b) is applicable, and after the Vendor
having provided thirty (30) days' prior written notice, the Owner shall have
failed (i) to commence to cure the default within five (5) Business Days of
delivery of such notice, and (ii) to diligently pursue such cure and remedy the
breach entirely.
24.8 Special Termination Events. (a) In the event that funds sufficient
--------------------------
to finance Owner's obligations under this Contract are not available to Owner
under the Vendor Financing as a result of the limitations imposed by Vendor by
the definition of Available Commitment in the Vendor Financing, then i) each
party's obligation to perform shall be suspended except for those obligations
contained in Sections 2.8, 12, 13, 14, 15, 16.3, 18, 19, 20, 23, 24, and 26, or
as otherwise required by law, and ii) if the cap remains in place for more than
thirty (30) days, Owner shall be released from any obligations to purchase
Equipment and Services under this Contract.
(b) If at any time after the Effective Date any material change shall
have occurred in any Applicable Law or in the interpretation thereof by any
Governmental Entity, or there shall be rendered any decision in any judicial or
administrative case or proceeding, in either case which, in the reasonable
opinion of the Owner would make the Owner's use of any part of any System
illegal or would subject the Owner or any of its Affiliates to any material
penalty, other material liability or onerous condition or to any burdensome
regulation by any Governmental Entity or otherwise render the use of such System
economically nonviable, then, with respect to such System, or affected part
thereof, or with respect to all Systems if so affected, the Owner may terminate
this Contract without charge or penalty of any kind; provided that (i) the Owner
-------- ----
gives the Vendor prior written notice of any such change or decision and (ii)
that the Owner uses its reasonable efforts for a reasonable time to reverse or
ameliorate such change or decision to the extent possible or practical prior to
declaring such termination. In the event of a termination pursuant to this
subsection, payment obligations incurred by the Owner for Work actually done or
Products or Services actually delivered by the Vendor prior to such termination
pursuant to this Contract shall be payable by the Owner to the Vendor on the
same terms and subject to the limitations set forth in subsection 24.8(a) above.
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SECTION 25. SUSPENSION
25.1 Owner's Right to Suspend Work. The Owner may at any time issue a
-----------------------------
Change Order to the Vendor to suspend all or any part of the Work for such
period of time as the Owner may reasonably determine to be appropriate. Any such
Change Order shall be handled in accordance with the provisions of Section 11
hereof.
SECTION 26. MISCELLANEOUS
26.1 Amendments. The terms and conditions of this Contract may only be
----------
amended by mutually agreed contract amendments. Each amendment shall be in
writing and shall identify the provisions to be changed and the changes to be
made. Contract amendments shall be signed by duly authorized representatives of
each of the Vendor and the Owner.
26.2 Owner Liabilities. Vendor understands and agrees that no third
-----------------
party shall guarantee or otherwise be in any way liable with respect to any
obligations or liabilities of the Owner or any of its affiliates pursuant to
this Contract.
26.3 Offset. The Vendor hereby waives any right of offset of amounts
------
owed by the Owner to the Vendor pursuant to the terms of this Contract.
26.4 Assignment. The Owner may assign this Contract, or any part hereof,
----------
to any affiliate of Owner without the Vendor's approval or consent. Subject to
the foregoing and except as otherwise permitted herein, neither this Contract
nor any portion hereof may be assigned by either party without the express prior
written consent of the other party. The Owner may, without the consent of the
Vendor, collaterally assign its rights hereunder (including, but not limited to,
all licenses with respect to the Software) to any or all parties providing
financing for any part of a System for the benefit of the Vendor and one or more
other entities providing financing for any part of a System or similar
arrangement for the benefit of the Vendor and one or more other entities
providing for the financing for any part of a System, in either case, which
arrangement, as the case may be, is reasonably acceptable to the Vendor in
accordance with the terms of the financing documents. If requested by the Owner,
the Vendor shall within seven (7) calendar days of such request provide a
written consent to any such assignment; provided that such consent shall permit
-------- ----
reassignment if the financing parties exercise their remedies under the
documents for such financing subject to reasonable standards as to (i) the
creditworthiness of the assignee and (ii) the fact that the assignee is not at
such time a direct competitor of the Vendor involved in the manufacture of
communications equipment, software or related services. The foregoing rights and
obligations are in addition to those set forth elsewhere in this Contract. Any
attempted assignment in violation of the terms of this Contract shall be null
and void. Subject to the foregoing, this Contract shall bind and inure to the
benefit of the parties to this Contract, their successors and permitted assigns.
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26.5 Notices. Except as otherwise expressly stated herein, all notices,
-------
requests, demands and other communications which are required or may be given
under this Contract shall be in writing and shall be deemed to have been duly
given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic or digital transmission method; the day after it is sent,
if sent for next day delivery to a domestic address by recognized overnight
delivery service; and three (3) days after sending, if sent by certified or
registered mail, postage prepaid, return receipt requested. All notices (except
for those regarding the completion of Services and acceptance of Systems and
Service, which shall be delivered to the Owner's Regional Director in the region
to which the notice pertains) shall be addressed as follows:
If to the Owner:
CRICKET COMMUNICATIONS, INC.
10307 Pacific Center Court
San Diego, California 92121
Attention: Chief Executive Officer
With a copy to:
Sr. Vice President, General Counsel
10307 Pacific Center Court
San Diego, California 92121
Telephone: (858) 882-6000
Facsimile: (858) 882-6080
If to the Vendor:
Lucent Technologies Inc.
5440 Millstream Road
Room E2N32
Mcleansville, NC 27301
Attention: Contract Manager
Telephone: (336) 279-5971
Facsimile: (336) 279-6544
By written notice provided pursuant to this subsection, either party may change
its designated addressee for purposes of giving notices under this Contract.
26.6 Governing Law. This Contract is governed by the laws of the State
-------------
of California, without regard to principles of conflict of laws. This Contract
shall be deemed to be made and executed in the State of California.
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26.7 Remedies. Subject only to the limitations on liability contained in
--------
Section 20.3, each party shall be entitled to pursue any and all rights and
remedies that are available at law or in equity.
26.8 Consent to Jurisdiction. Each party to this Contract, by its
-----------------------
execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction
of the United States District Court located in the Southern District of
California or the state courts of the State of California located in San Diego,
California for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Contract or relating to the subject matter hereof, (ii)
hereby waives, to the extent not prohibited by applicable law, and agrees not to
assert, by way of motion, as a defense or otherwise, in any such action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution,
that-any such proceeding brought in one of the above-named courts is improper,
or that this Contract or the subject matter hereof may not be enforced in or by
such court, and (iii) hereby agrees not to commence any action, claim, cause of
action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this Contract or relating to the
subject matter hereof other than before one of the above-named courts nor to
make any motion or take any other action seeking or intending to cause the
transfer or removal of any such action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by California law, and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified herein.
26.9 Compliance with Law. The Owner and the Vendor shall (a) comply with
-------------------
all Applicable Laws in the performance of this Contract, including, without
limitation, the laws and regulations of the United States Department of
Commerce, State Department and the Federal Communications Commission and any
other applicable agency or department.
26.10 Headings. The headings given to the Sections and subsections
--------
herein are inserted only for convenience and are in no way to be construed as
part of this Contract or as a limitation of the scope of the particular Section
or subsection to which the title refers.
26.11 Severability. Whenever possible, each provision of this Contract
------------
shall be interpreted in such a manner as to be effective and valid under such
applicable law, but, if any provision of this Contract shall be held to be
prohibited or invalid in any jurisdiction, the remaining provisions of this
Contract shall remain in full force and effect and such prohibited or invalid
provision shall remain in effect in any jurisdiction in which it is not
prohibited or invalid.
26.12 Waiver. Unless otherwise specifically provided by the terms of
------
this Contract, no delay or failure to exercise a right resulting from any breach
of this Contract
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shall impair such right or shall be construed to be a waiver thereof, but such
right may be exercised from time to time as may be deemed expedient. If any
representation, warranty or covenant contained in this Contract is breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and not be deemed to waive any other
breach under this Contract.
26.13 Public Statements and Advertising. (a) Neither party shall issue
---------------------------------
any public statement (or any private statement unless required in the
performance of the Work) relating to or in any way disclosing any aspect of the
Work or any System including the scope, the specific terms of this Contract,
extent or value of the Work or any System. Express written consent of the other
party is required prior to the invitation of or permission to any reporter or
journalist to enter upon the System or any part thereof. The Vendor agrees not
to use for publicity purposes any photographs, drawings and/or materials
describing any System without obtaining the prior written consent of the Owner,
which consent shall not be unreasonably withheld. The Owner agrees not to use
for publicity purposes any photographs, drawings and/or materials describing the
Vendor's products and services without obtaining the prior written consent of
the Vendor, which consent shall not be unreasonably withheld. This subsection
shall not prohibit the provision of necessary information to prospective
Subcontractors and the Vendor's or the Owner's personnel, agents or consultants
or other disclosures which are required by Applicable Law, including without
limitation federal and state securities laws and regulations. All other such
public disclosures by a party require the written consent of the other party.
(b) Each party shall submit to the other proposed copies of all
advertising (other than public statements or press releases) wherein the name,
trademark or service mark of the other party or its affiliates is mentioned; and
neither party shall publish or use such advertising without the other party's
prior written approval. Such approval shall be granted as promptly as possible
and shall not be unreasonably withheld. The parties acknowledge that the
obtaining of prior written approval for each such use pursuant to this
subsection may be an administrative burden. At the request of either party, the
Owner and the Vendor shall establish mutually acceptable guidelines for the uses
specified therein. Such guidelines shall be subject to change from time to time
at the reasonable request of either party.
26.14 Records and Communications. Procedures for keeping and
--------------------------
distributing orderly and complete records of the Work and its progress are
stated in the Exhibits. The procedures so established shall be followed
throughout the course of the Work unless the Owner and the Vendor mutually agree
in advance in writing to revise the procedures. Procedures for communications
among the Owner and the Vendor are stated in the Exhibits. The procedures so
established shall be followed throughout the course of the Work unless the Owner
and the Vendor mutually agree in advance and in writing to revise such
procedure.
26.15 Ownership of Specifications. The Specifications shall constitute
---------------------------
the Proprietary Information of each party to the extent of each party's
contribution to the Specifications. Neither party shall use those parts of the
Specifications contributed by the
72
<PAGE>
other party or any part of the Proprietary Information of the other party for
any purpose other than fulfilling or exercising their respective rights or
obligations under this Agreement.
26.16 Financing Requirements. The Vendor acknowledges that the
----------------------
attainment of financing for construction of the System may be subject to
conditions that are customary and appropriate for the providers of such
financing. Therefore, the Vendor agrees to promptly consider any reasonable
amendment to or modification or assignment of this Contract required by such
providers (including, without limitation, any pertinent industrial development
authority or other similar governmental agency issuing bonds for financing of
the System) which do not materially modify the scope of the Vendor's Work in
order to obtain such financing. In the event that any such amendment or
modification materially increases the Vendor's risk or costs hereunder, the
Owner and the Vendor shall negotiate in good faith to adjust pricing matters,
and to equitably adjust such other provisions of this Contract, if any, which
may be affected thereby, to the extent necessary to reflect such increased risk
or costs. In no event shall the Vendor be required to accept any modification or
amendment pursuant to this subsection, providing Vendor has a commercially
reasonable basis for such refusal.
26.17 Owner Review, Comment and Approval. To the extent that various
----------------------------------
provisions of this Contract provide for the Owner's review, comment, inspection,
evaluation, recommendation or approval, the Owner may at its option do so in
conjunction and/or consultation with the Vendor. To the extent that this
Contract requires the Owner to submit, furnish, provide or deliver to the Vendor
any report, notice, Change Order, request or other items, the Owner may at its
option and upon written notice to the Vendor designate a representative to
submit, furnish, provide or deliver such items as the Owner's agent therefor. To
the extent that various provisions of this Contract provide that the Owner may
order, direct or make requests with respect to performance of the Work or is
provided access to the System sites or any other site, the Owner may at its
option and upon written notice to the Vendor authorize a representative to act
as the Owner's agent therefor. Upon receipt of such notice, the Vendor shall be
entitled to rely upon such authorization until the Vendor receives a superseding
written notice from the Owner.
26.18 Confidentiality. (a) All information which is identified as
---------------
proprietary or confidential by the disclosing party, including without
limitation all oral and written information (including, but not limited to,
determinations or reports by arbitrators pursuant to the terms of this
Contract), disclosed to the other party is deemed to be confidential, restricted
and proprietary to the disclosing party (hereinafter referred to as "Proprietary
-----------
Information"). Each party agrees to use the Proprietary Information received
-----------
from the other party only for the purpose of this Contract. Except as specified
in this Contract, no other rights, and particularly licenses, to trademarks,
inventions, copyrights, patents, or any other intellectual property rights are
implied or granted under this Contract or by the conveying of Proprietary
Information between the parties. Proprietary Information supplied is not to be
reproduced in any form except as required to accomplish the intent of, and in
accordance with the terms of, this Contract. The receiving party shall provide
the same care to avoid disclosure or unauthorized use of Proprietary Information
as it provides to protect its own similar proprietary information but in no
event shall the receiving party fail to use
73
<PAGE>
reasonable care under the circumstances to avoid disclosure or unauthorized use
of Proprietary Information. All Proprietary Information shall be retained by
the receiving party in a secure place with access limited to only such of the
receiving party's employees, subcontractors or agents who need to know such
information for purposes of this Contract and to such third parties as the
disclosing party has consented to by prior written approval. All Proprietary
Information, unless otherwise specified in writing (i) remains the property of
the disclosing party, (ii) shall be used by the receiving party only for the
purpose for which it was intended, and (iii) such Proprietary Information,
including all copies of such information, shall be returned to the disclosing
party or destroyed after the receiving party's need for it has expired or upon
request of the disclosing party, and, in any event, upon termination of this
Contract. At the request of the disclosing party, the receiving party shall
furnish a certificate of an officer of the receiving party certifying that
Proprietary Information not returned to disclosing party has been destroyed.
For the purposes hereof, Proprietary Information does not include information
which:
(i) is published or is otherwise in the public domain through no
fault of the receiving party at the time of any claimed disclosure or
unauthorized use by the receiving party;
(ii) prior to disclosure pursuant to this Contract is properly
within the legitimate possession of the receiving party as evidenced by
reasonable documentation to the extent applicable;
(iii) subsequent to disclosure pursuant to this Contract is
lawfully received from a third party having rights in the information
without restriction of the third party's right to disseminate the
information and without notice of any restriction against its further
disclosure;
(iv) is independently developed by the receiving party or is
otherwise received through parties who have not had, either directly or
indirectly, access to or knowledge of such Proprietary Information;
(v) is transmitted to the receiving party after the disclosing
party has received written notice from the receiving party after
termination or expiration of this Contract that it does not desire to
receive further Proprietary Information;
(vi) is obligated to be produced under order of a court of
competent jurisdiction or other similar requirement of a Governmental
Entity, so long as the party required to disclose the information provides
the other party with prior notice of such order or requirement and its
cooperation to the extent reasonable in preserving its confidentiality; or
(vii) the disclosing party agrees in writing is free of such
restrictions.
74
<PAGE>
(b) Because damages may be difficult to ascertain, the parties agree,
without limiting any other rights and remedies specified herein, an
injunction may be sought against the party who has breached or threatened
to breach this subsection. Each party represents and warrants that it has
the right to disclose all Proprietary Information which it has disclosed to
the other party pursuant to this Contract, and each party agrees to
indemnify and hold harmless the other from all claims by a third party
related to the wrongful disclosure of such third party's proprietary
information.
26.19 Entirety of Contract; No Oral Change. This Contract and the
------------------------------------
Exhibits and Schedules referenced herein constitute the entire contract between
the parties with respect to the subject matter hereof, and supersede all
proposals, oral or written, all previous negotiations, and all other
communications between the parties with respect to the subject matter hereof. No
modifications, alterations or waivers of any provisions herein contained shall
be binding on the parties hereto unless evidenced in writing signed by duly
authorized representatives of both parties as set forth in this Contract.
26.20 Relationship of the Parties. Nothing in this Contract shall be
---------------------------
deemed to constitute either party a partner, agent or legal representative of
the other party, or to create any fiduciary relationship between the parties.
The Vendor is and shall remain an independent contractor in the performance of
this Contract, maintaining complete control of its personnel, workers,
Subcontractors and operations required for performance of the Work. This
Contract shall not be construed to create any relationship, contractual or
otherwise, between the Owner and any Subcontractor, except to establish Owner as
a third party beneficiary of the Vendor's contacts with Subcontractors as
provided herein.
26.21 Discretion. Notwithstanding anything contained herein to the
----------
contrary, to the extent that various provisions of this Contract call for an
exercise of discretion in making decisions or granting approvals or consents,
the parties shall be required to exercise such discretion, decision or approvals
and in good faith.
26.22 Non-Recourse. No past, present or future limited or general
------------
partner in or of the Owner, no parent or other affiliate of any company
comprising the Owner, and no officer, employee, servant, executive, director,
agent or authorized representative of any of them (each, an "Operative") shall
---------
be liable by virtue of the direct or indirect ownership interest of such
Operative in the Owner for payments due under this Contract or for the
performance of any obligation, or breach of any representation or warranty made
by the Owner hereunder. The sole recourse of the Vendor for satisfaction of the
obligations of the Owner under this Contract shall be against the Owner and the
Owner's assets and not against any Operative or any assets or property of any
such Operative. In the event that a default occurs in connection with such
obligations, no action shall be brought against any such Operative by virtue of
its direct or indirect ownership interest in the Owner.
26.23 Improvements, Inventions and Innovations. All rights in any
----------------------------------------
improvements, inventions, and innovations made solely by the Owner shall vest in
the Owner, and the Owner and its affiliates shall have the right to exploit such
improvements, inventions, and innovations. All rights in any improvements,
inventions and innovations
75
<PAGE>
made solely by the Vendor shall vest in the Vendor, and the Vendor and its
affiliates shall have the right to exploit such improvements, inventions and
innovations. All rights in any improvements, inventions and innovations made by
the substantial contribution of both parties ("Joint Information") shall vest
-----------------
jointly in both parties. Joint Information does not include any underlying
information owned by one of the parties prior to commencement of such joint
activities or developed beyond the scope of such joint activities, including
Products and Product information, technical information or inventions developed
prior to the commencement of any joint activities, developed outside of the
scope of such joint activities or developed solely by either party. The rights
of joint ownership to such Joint Information shall be rights of full non-
exclusive worldwide ownership, including rights to license and transfer. Each
party may exploit its rights to the Joint Information independent of the other
and may retain all economic benefits thereof, neither party shall have any
obligation to account to the other for profits derived from the Joint
Information and each party shall have full rights to enforce the Joint
Information intellectual property rights against non-authorized users.
26.24 Attachments and Incorporations. All Schedules and Exhibits
------------------------------
attached hereto, are hereby incorporated by reference herein and made a part of
this Contract with the same force and effect as though set forth in their
entirety herein.
26.25 Conflicts. In the event of any conflict or inconsistency among the
---------
provisions of this Contract and the documents attached hereto and incorporated
herein, such conflict or inconsistency shall be resolved by giving precedence to
this Contract and thereafter to the Exhibits, Schedules and Specifications.
26.26 References to Certain Sources. Reference to standard
-----------------------------
specifications, manuals or codes of any technical society, organization or
association or to the laws or regulations of any Governmental Entity, whether
such reference is specific or by implication, by this Contract, means the latest
standard specification, manual, code, laws or regulations in effect at the time
of such reference, except as may be otherwise specifically agreed to by the
Owner. However, no provision of any reference, standard, specification, manual
or code (whether or not specifically incorporated by reference in this Contract)
shall be effective to change the duties and responsibilities of the Owner or the
Vendor from those set forth in this Contract; provided that nothing contained in
-------- ----
this Contract shall require the Owner or the Vendor to violate then existing and
enforceable Applicable Laws.
26.27 Counterparts. This Contract may be executed by one or more of the
------------
parties to this Contract on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
26.28 Cooperation. Vendor acknowledges that Owner may have one or more
-----------
third party vendors, contractors and other personnel engaged to provide work,
equipment or services to Owner in connection with or related to this Contract.
Vendor agrees to reasonably communicate and cooperate with such third parties at
all times and, at the request of Owner, coordinate Vendor's and Vendor's
Subcontractors' activities hereunder with the activities of such third parties.
76
<PAGE>
26.29 Survival. Notwithstanding any expiration or termination of this
--------
Contract, the provisions of Sections 2.8, 12, 13, 14, 15, 18, 20 and 26.18 shall
continue in full force and effect.
THE OWNER AND THE VENDOR HAVE READ THIS CONTRACT INCLUDING ALL SCHEDULES
AND EXHIBITS HERETO AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF
AND THEREOF.
IN WITNESS WHEREOF, the parties have executed this Contract as of the
date first above written.
VENDOR:
LUCENT TECHNOLOGIES INC,
a Delaware corporation
By: /s/ Charles M. Many
--------------------------
Name: Charles M. Many
Title: V.P. Sales
OWNER:
CRICKET COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ S.G. Swenson
-----------------------
Name: S.G. Swenson
Title: President and C.E.O.
77
<PAGE>
EXHIBIT A
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SYSTEM DESCRIPTION
Lucent Technologies, Inc. shall provide PCS 1900 mhz CDMA equipment, including
MSCs, ECPs, AP's, and base stations for deployment in Cricket Communications,
Inc.'s wireless network in the C through F bands.
<PAGE>
Exhibit B to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Discount Structure for Cricket Communications
[Twenty-One Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit B-1 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Flexent BTS Equipment
[Nine Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
<PAGE>
Exhibit B-2 to the Cricket Communication, Inc. System Equipment Purchase
Agreement
PCS CDMA System for Nashville
Discounted Pricing Summary
[Eleven Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit B-3 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
PCS CDMA System for Chattanooga
Discounted Pricing Summary
[Twelve Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit B-4 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Voice Processing Proposal
Year One: [*] Mailboxes (2000) New System Hardware Kit
(Nashville, TN)
[Thirty-Nine Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
[*] Certain material (indicated by asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission.
<PAGE>
Exhibit B-5 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Annual Release Maintenance Fee (ARMF)
[Six Pages of Text Deleted Pursuant to Confidential Treatment Request]
<PAGE>
Exhibit B-6 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Software Feature Packages
[One Page of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit B-7 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Services Prices
[Thirteen Pages of Pricing Information Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit B-8 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
[One Hundred and Six Pages of Pricing Lists Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit C to the Cricket Communications, Inc. System Equipment Purchase
Agreement
[Eleven Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit D to the Cricket Communications, Inc. System Equipment Purchase
Agreement
RF Engineering and Design Pricing
[Seven Pages of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
EXHIBIT E-1
Agency Plan for Outsourced Material Cricket Communications ENHANCED SERVICES
ADDENDUM
May 16, 2000
Lucent's Agency Plan for Third Party Material Procurement
Lucent's Agency Plan is a value-added option made available to wireless
customers purchasing enhanced services from Lucent's Wireless Professional
Services organization. This section provides a description of the plan and the
benefits to Wireless Operators.
Overview
Contracting with Lucent Technologies to provide Construction Management Services
in the deployment of a PCS system extends to Cricket Communications the
advantage of using the Lucent Agency Plan. A value-added aspect of the Lucent's
Wireless Professional Services Offer, the Lucent Agency Plan offers the
convenience of a completely mechanized materials management system and extends
to Cricket Communications Lucent's negotiated market level discounts on third-
party material with no additional mark-up. Participation in the Agency Plan
results in a more effectively managed project using materials which have been
selected with Lucent's technical expertise and purchased by Cricket
Communications at market level discounts at significant savings over traditional
prices.
1.0 Plan Process - Stocked Materials
By engaging Lucent Technologies Construction Management Services, Cricket
Communications is eligible to receive Lucent's market level discounts and to
receive the benefits of a site materials management system designed specifically
for the Wireless Industry. The process by which the plan is enacted and Cricket
Communications benefits is described below.
a. The process begins when the Wireless Operator issues Lucent a letter of
agency, authorizing Lucent to conduct negotiations with Agency Subcontractors
that are suppliers of PCS materials, including Sprint North Supply and other
parties mutually agreed to by Lucent and Cricket, and to arrange for pricing,
manufacturing, and delivery schedules with third-party vendors.
b. After receipt of a letter of agency, Lucent's Wireless Professional Services
team performs a technical evaluation to determine gross cable, antenna,
microwave equipment, tower, associated material requirements. Forecasts are
prepared to distributors and vendors to firm availability and delivery dates.
c. During the engineering phase of the project, Lucent's Construction Manager
will prepare detailed material lists, using the RF design criteria to properly
size feeder cables, connectors. Lucent's exclusive PCS Configurator Software
will measure calculated performance of the antenna feeder system against RF
Design criteria and will immediately flag any deviations for corrective action.
The resultant engineered material lists will be consistent with the RF Design.
d. Using the material list provided by Lucent, Cricket prepares a purchase
order and submits it to the Agency Subcontractor, using the Lucent Discount
Schedule.
e. On receipt of the purchase order, the Agency Subcontractor assembles site
kits based on specifications provided by Lucent and ships the kitted material to
the job site. The material is held at the nearest distribution center serving
Cricket's Market(s) until released for shipment by the Lucent Construction
Manager. The Agency Subcontractor will be prepared to ship stocked
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 of 5
<PAGE>
EXHIBIT E-1
Agency Plan for Outsourced Material Cricket Communications ENHANCED SERVICES
ADDENDUM
May 16, 2000
orders from inventory within 24 hours of receipt of order. During the period of
time that the site materials are held at the distribution center, no staging or
warehousing costs are incurred. The Lucent Construction Manager will take full
advantage of this option to employ the benefits of just in time material
management. Orders will be delivered to Cricket designated site locations forty
eight (48) business hours following confirmation of the ship request from the
Lucent Construction Manager.
f. In the event that items are required which are not currently stocked, the
Agency Subcontractor is empowered to seek discounted pricing on Lucent's behalf
from Lucent-approved vendors and will strive to achieve scheduling which will
result in twenty four (24) to forty eight (48) hour delivery of product.
Stocked material will ship FOB Destination at the fixed discounted rate,
eliminating variable shipping costs for Cricket Communications.
The attached discount schedule reflects Cricket's discount for stocked materials
delivered to Cricket's markets.
g. Cricket will be invoiced for materials upon shipment. Material invoices
will be reviewed by the Lucent Construction Manager for an "OK to Pay" prior to
payment to the Agency Subcontractor by Cricket.
h. All material status is tracked using an MS-Access database which is updated
from the Agency Subcontractor's central material tracking system. The client
software produces all material management reports and provides daily status of
site materials. At the completion of the project, Lucent will turn the database
over to Cricket for their use for on-going material management.
In conjunction with Lucent's Construction Management Services, Cricket
Communications will continue to receive Lucent's stocked material discounts from
the Lucent designated Agency Subcontractor following completion of the
construction of Cricket's network. This feature will enable Cricket to acquire
additional materials needed for maintenance and/or growth at the same discount
levels applied during the initial build.
2.0 Materials and Equipment Not Stocked by Distributor
The process for handling non-stocked materials, such as towers, anchor bolts,
customized steel components, shelters, microwave radio equipment, and related
items is similar, with the major exception that these items are generally drop
shipped from the point of manufacture and incur transportation and applicable
warehousing charges. Lucent's wireless customers will, however, receive
Lucent's negotiated discounts for these items with no additional markup.
As with stocked items, Lucent's construction managers will manage the logistics
associated with tracking the material and coordinating delivery to the job site
or Cricket Communications' warehouse facility. The availability intervals for
non-stocked items are based solely on vendor manufacturing intervals and
availability. Lucent will act in good faith to obtain the best availability for
such items.
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 of 5
<PAGE>
EXHIBIT E-1
Agency Plan for Outsourced Material Cricket Communications ENHANCED SERVICES
ADDENDUM
May 16, 2000
3.0 Materials, Equipment and Services not Included in the Plan
Equipment manufactured by Lucent Technologies or supplied by Lucent as part of
an OEM contract with a third party supplier, or other pre-existing agreement,
and supplier financed equipment and services are not included in the plan.
Material and equipment otherwise qualified for provisioning under the Agency
Plan may not qualify if prohibited under the terms of a separate financing
agreement.
4.0 Roles and Responsibilities
The roles and responsibilities of Lucent, the Agency Subcontractor, and Cricket
Communications are described as follows:
Lucent - As an agent of Cricket Communications, Lucent Construction Services is
------
responsible for the engineering and the preparation of detailed bills of
materials in accordance with the network RF design criteria. Lucent will
perform material management and will review Agency Subcontractor's invoices
prior to payment.
Agency Subcontractor - The Agency Subcontractor is responsible for procurement,
stock, material management, warehousing, order assembly, shipping,
transportation, tracking and reporting, material invoicing and asset tracking
for stocked items.
Cricket - Cricket Communications is responsible for providing Lucent with a
-------
letter of agency, the timely issuance of purchase orders to the Agency
Subcontractor / Vendor(s) based on Lucent's prepared Bill of Materials, and for
payment of material invoices. Cricket is also required to pay transportation
and provide temporary storage for non-stocked items.
5.0 Designated Distributor
Lucent's designated Agency Subcontractor is Sprint North Supply and other
parties mutually agreed to by Lucent and Cricket.
6.0 Discount Schedule
Refer to the attached discount schedule for Cricket's percentage discount off of
current advertised list price. Included is a typical Bill of Materials produced
by Lucent's PCS Configurator software tool.
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 of 5
<PAGE>
EXHIBIT E-1
Agency Plan for Outsourced Material Cricket Communications ENHANCED SERVICES
ADDENDUM
May 16, 2000
MATERIAL MANAGEMENT - LUCENT Technologies' AGENCY PLAN
By engaging Lucent Technologies' Construction Management Services, Cricket
Communications qualifies to participate in Lucent Technologies' Agency Plan for
third party (Non-Lucent Technologies) material provisioning. The material
management process identities qualified suppliers, material lists for each cell
site, order and material tracking, staging, coordination of deliveries and
reporting. Upon completion of the project, a database of information will be
furnished to Cricket Communications.
If Cricket Communications elects to participate in Lucent Technologies' Agency
Plan, Lucent Technologies will perform these material management tasks at no
additional fee only in conjunction with Lucent Technologies' established Agency
Plan process. Participation in this plan by Cricket Communications is optional.
Agency Subcontractor - Stocked Material Items
Lucent Technologies will designate the participating Agency Subcontractor for
stocked material items. Stocked items include: Antennas, Tilt Brackets, Coaxial
Cables, Coaxial Connectors, Electrical and Telecom Pedestals, Grounding Kits,
Jumper Cables, Weather Seal Kits, Coaxial cable hanger kits, Angle Adapters,
Hoisting Grips and hardware kits.
Third Party Vendors - Non-Stocked Material Items
Lucent Technologies will assemble a list of recommended third party vendors for
non-stocked material items for review and approval by Cricket Communications.
Non-Stocked material items include towers, tower anchor bolts, anchor bolt
templates, shelters, galvanized steel components and hardware, antenna mounting
steel, tower modification steel, electronic equipment, BTS mounting frames and
civil construction materials not furnished with the site construction.
Stocked Material Items - Forecast
Lucent Technologies will prepare and submit a forecast to the participating
Agency Subcontractor for stocked materials required for installation in Cricket
Communications network.
Material List Compilation
Upon completion of the construction drawings and consistent with the RF Design
and Lucent Technologies BTS equipment requirements, Lucent Technologies will
develop detailed lists of material required to construct each cell site.
Purchase Order Approval
Lucent Technologies will submit detailed material lists, with costs, to Cricket
Communications for approval. Material costs will be based on Lucent
Technologies' market level discounts through the Lucent Technologies designated
Agency Subcontractor for stocked items and quoted discounted pricing from third
party vendors for non-stocked items.
Purchase Order Submission
Cricket Communications will submit purchase orders to the Agency Subcontractor
and third party vendor(s) for procurement and delivery to Cricket Communications
sites, storage facility or staging area.
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 of 5
<PAGE>
EXHIBIT E-1
Agency Plan for Outsourced Material Cricket Communications ENHANCED SERVICES
ADDENDUM
May 16, 2000
Material Staging - Items Stocked by Lucent Technologies' Designated Agency
Subcontractor
Stocked material items will be staged at a distribution center within 48
business hours travel distance by standard overland freight. Stocked materials
will be staged by site and will be available for shipment within twenty four
(24) hours after receipt of a valid purchase order.
Material - Items Not Stocked and Procured Directly from Other Vendors
Lucent Technologies make reasonable efforts to coordinate shipments and
deliveries of materials to direct to Cricket Communications sites to coincide
with site installation requirements. Availability intervals will be as
specified by each supplier.
Material Tracking
Lucent Technologies will track the status of all ordered materials, stock and
non-stock, from the time valid purchase orders are received by the Agency
Subcontractor / vendor(s) and entered into the material tracking database
system. All materials provisioned in accordance with the Agency Plan will be
added to the tracking database and coordinated by Lucent Technologies'
Construction Manager(s). Lucent Technologies' Construction Manager(s) will
prepare and submit periodic reports detailing the status of all materials in the
tracking system. At the end of construction, Cricket Communications will be
furnished with an electronic copy of the data.
Transportation Costs
Stocked materials shipped by Lucent Technologies' participating Agency
Subcontractor are shipped F.O.B. destination from the nearest distribution
center, and incur no added transportation costs. Transportation costs for non-
stocked materials will be billed directly to Cricket Communications by third
party vendor(s) in accordance with the purchasing agreements established between
Cricket Communications and each vendor.
Invoice Approval and Payment
Lucent Technologies will review Agency Subcontractor invoices prior to payment
by Cricket Communications to check that items invoiced were ordered, shipped and
delivered in good condition. Lucent Technologies will check invoice costs
against established current discount schedules. Lucent Technologies will
provide preliminarily approved invoices to Cricket Communications for
evaluation, final approval, and payment.
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 of 5
<PAGE>
Exhibit E-2A to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Construction Management - Mobile Switch Center (MSC)
[Three Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-2B to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Construction Management
[Four Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-3A to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Construction Services
[Four Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-3B to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Statement of Work - MSC Construction Services
[Three Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-4A to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Architectural & Engineering Services - MLA Sites
[Two Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-4B to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Architectural & Engineering Services - Non MLA Sites
[Two Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-4C to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Statement of Work - MSC Architectural & Engineering Services
[Four Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-5A to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Pre-Deployment Services
[Two Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-5B to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Site Acquisition and Zoning Services - MLA Sites
[Two Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-5C to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Site Acquisition and Zoning Services - Non MLA Site
[Three Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-5D to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Site Acquisition - Mobile Switch Center
[Three Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-6 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Spectrum Clearing / Microwave Relocation
[Four Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-7 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies
Scope of Work - Overall Program / Project Management
[One Page of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-8 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Network Planning and Design Services Statement of Work
[One Page of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit E-9 to the Cricket Communications, Inc. System Equipment Purchase
Agreement
NetworkCare
Statement of Work Agreement
[Three Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
EXHIBIT F
BTS & MSC INSTALLATION
I. STATEMENT OF WORK
1. GENERAL
The purpose of this section is to describe Owner's and Vendor's responsibilities
for the ordering, scheduling, transport, warehousing, testing, delivery,
installation and acceptance of BTS and or MSC equipment at one or more sites
secured by Owner as part of its RF Network design for a market. In no case
should this document supersede the terms and conditions of the base contract.
Both parties shall use best efforts to individually and jointly complete
activities identified in the following narrative and matrices to accomplish the
installation of all BTS' and associated materials to insure the timely and
efficient operation of the Owner's network.
2. RESPONSIBILITIES
b. Owner
(1). Prior to install - Owner shall, using a "just-in-time"
----------------
delivery philosophy, issue purchase orders for BTS' and MSC' and
related equipment to the Vendor. Owner shall provide Vendor a
copy of the Network Design for review by Vendor and incorporation
into the production design of equipment for the individual site.
Owner shall insure through separate contracts that all local
permits and approvals have been secured for the installation of
Vendor's equipment at a cell site. All Owner provided antennas,
jumper and coax shall be installed and swept prior to or at the
time of BTS' equipment installation. All Owner installed power,
grounding and air conditioning shall be installed prior to or
contemporaneous with the time of MSC/OEM equipment installation
to meet Vendor's written specifications. Power and telco shall
have been ordered and either installed or scheduled for
installation at the site. A ground ring and bar shall be
provided to meet Vendor's written specifications. Access and
staging areas shall be secured for use by Vendor to carry out
their responsibilities.
(2). During install - Owner shall make available technical staff
--------------
to monitor installation, review and conduct such operational
tests as may be agreed upon by Owner and Vendor as part of this
installation activity. Owner shall make available, as required,
subcontractors to carry out such modifications to the
positioning, placement or replacement of antennas, positioning,
placement or replacement of existing equipment, cables, coaxial
cable and power distribution systems as may be required by Seller
to carry out the installation and optimization of their equipment
at the site required by Vendor to carry out the optimization of
the site.
(3). Post install - Owner shall conduct mutually agreed to tests
------------
and inspections deemed necessary in order to accept the
installation and operation of the site including review of any
and all tests and procedures conducted by Vendor as part of the
installation process.
a. Vendor
(1). Prior to install - Vendor shall schedule the production,
----------------
transport, delivery to any warehousing facilities required by
Vendor and delivery to and lifting at the cell site pad in
conformance with Owner's site specifications.
(2). During install - Vendor shall provide technical staff and
--------------
materials to carry out the provisioning, transport, lifting,
installation, testing, optimization and acceptance of BTS, and
related equipment (bottom jumpers, RFFE's/LNA's, GPS antennas and
coax, power and telco cables to the demarc, etc.) or MSC and
related equipment at the site.
(3). Post install - Vendor shall provide to Owner written results
------------
(or in other format as maybe mutually agreed upon) of all
installation and testing conducted on the site together with all
operational parameters set on the equipment during installation,
optimization and integration process for the site.
Page 1 of 5
<PAGE>
3. EXECUTION PLAN
Vendor shall develop an execution plan for review and acceptance by Owner
that outlines, in detail, the Scope of Work, Project Team, Schedule,
Reporting Provisions, Quality Control functions and the Process for Change
orders to be utilized both for the overall project and the installation of
the all specified equipment at a cell site. The execution plan shall be
provided by Vendor to Owner and approved by Owner, in writing, prior to the
start of installation.
4. PROJECT TEAM
Vendor shall provide a detailed staffing plan by name, job function,
schedule, contact phone numbers together with a reporting hierarchy for the
teams assigned to BTS installation. The project team shall be reviewed
with and approved by Owner to determine adequacy of numbers and job
categories to carry out the complete project BTS installation schedule
within the mutually agreed upon schedule and price.
Owner shall provide a staffing plan outlining points of contact, decision
making authority and staff availability for the duration of the
installation project.
5. SCHEDULE
Vendor shall provide in a mutually agreed to format, both hard copy and
electronic, an installation schedule that includes all agreed upon project
activities, deliverables, timetables, task prerequisites,
interdependencies, staffing, etc.
6. REPORTING PROVISIONS
Vendor shall provide written reports in a mutually agreed to format. This
schedule shall be prepared as a baseline and shall be upgraded against the
baseline not less often than once per week to demonstrate adherence to the
project schedule. In addition, more frequent reports shall be made by
Vendor to keep Owner informed of any problems which may impact schedule
adherence or which may require a change order from this Scope of Work.
7. CHANGE ORDERS
In the event that site conditions deviate from those represented by Owner
to the Vendor and which may have a significant cost impact, Vendor shall
prepare for review and approval by Owner prior to implementation of the
change, a written change request for Owner's approval. This request shall
outline the assumptions made prior to the request, the changes found which
necessitate the request, the cost or time deviations resulting from the
current conditions and a cost associated with the request. Owner shall
have 24 hours to approve or deny the request.
II. RESPONSIBILITY MATRIX
See Attached Excel Spreadsheet
III. ACCEPTANCE CRITERIA
Vendor shall provide to Owner its Standard Plan outlining criteria for
acceptance of installation of BTS equipment as complete prior to and for
inclusion in the final contract documents. This
Page 2 of 5
<PAGE>
Standard Plan shall, by incorporation, become a part of this agreement and
shall include at a minimum: Verification of Sweep tests, equipment
settings, all serial numbers, end-to-end test results of telephone
circuits, all manuals and documentation for the equipment, serial numbers,
etc. Acceptance of equipment installation by Owner shall not imply
acceptance of equipment performance individually or in the aggregate.
IV. WARRANTIES
Vendor agrees to perform Services in a workmanlike manner and in accordance
with good usage and 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 Owner. If Services performed by
Vendor prove not to be performed in accordance with this Warranty and if
Owner notifies Vendor of this failure within a thirty (30) days period
commencing on the date of completion of the Service, Vendor, at its option,
either will correct all Defects or Deficiencies or render a full or
prorated refund or credit based on the original charge for the Services.
THE FOREGOING SERVICES WARRANTIES ARE IN ADDITION TO THOSE STATED IN
SECTION 18.2 OF THE CONTRACT AND ARE IN LIEU OF ALL OTHER IMPLIED
WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTIBILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
Page 3 of 5
<PAGE>
[Two Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
Page 4 of 5
<PAGE>
Exhibit G to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Network Owner Acceptance
Substantial Completion Reference Documents
[Twenty Pages of Technical Information Text Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
EXHIBIT H
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
Network Reliability Center
Product Description
August, 1999
Lucent Technologies Proprietary Page 1 of 6
Use Pursuant to Company Instructions
<PAGE>
[Five Pages of Product Description Information Deleted Pursuant to Confidential
Treatment Request]
Lucent Technologies Proprietary Page 2 of 6
Use Pursuant to Company Instructions
<PAGE>
Lucent Technologies
AutoPACE(TM) System
PRODUCT DESCRIPTION
INTRODUCTION
The AutoPACET(TM) System provides performance management and some aspects of
configuration management for Lucent Technologies wireless systems. This
software tool can be used for monitoring and maintaining or improving system
performance, troubleshooting, capacity planning, and, in general, engineering a
Lucent Technologies wireless system to provide peak quality of service. New
releases of the AutoPACE System are issued approximately twice a year to support
new ECP and cell site software releases and to provide new features and
capabilities. The current release is AutoPACE 13.01.
General Background
The AutoPACE System is a second generation tool that has evolved over more than
10 years. Strongly driven by user input, it was developed to enhance and
replace the performance analysis software package introduced in 1987 in response
to an assessment of the needs of AUTOPLEX System operators.
Performance analysis is required to monitor and maintain (or improve) the
quality of service once a system is operational. Performance analysis can
indicate aspects of a system that are
Exhibit I Lucent Technologies Page 1 of 22
January 1999
<PAGE>
not operating at acceptable levels due either to design deficiencies,
hardware/software failures, or the growth of the system and/or subscriber base.
AutoPACE System Benefits
The major benefits of the AutoPACE System are:
. A Graphical User Interface (GUI), implemented under Microsoft(R)/1/
Windows(TM)/2/
. A client-server architecture that supports a common data source for multiple
users
. Single server support for multiple systems and systems with multiple MSCs
. Long term data storage in an INFORMIX(R)/3/ database on the AutoPACE server
. Easier analyses through a task-oriented user interface
. Flexible and user-definable busy hour analyses
. Automated report generation via user-defined schedules
. Busy hour or 24 hour data summarization to reduce resource requirements for
long term data storage
. Flexible analysis options, including data trending and forecasting
. Flexible configuration options
. Integrated interface for data collection from Lucent Technologies wireless
systems.
. 7 day x 24 hour hot line support by Wireless Technical Support Center
. Professionally produced documentation (hard copy and CD-ROM) reissued every
release and detailed Release Letters
. Dedicated AutoPACE courses included in an integrated wireless curriculum
provided by the Lucent Technologies Customer Training and Information
Products (CTIP) organization
--------------------------
/1/ Microsoft is a registered trademark of Microsoft Corporation, Inc.
/2/ Windows is a trademark of Microsoft Corporation, Inc.
/3/ INFORMIX is a registered trademark of INFORMIX Software, Inc.
Exhibit I Lucent Technologies Page 2 of 22
January 1999
<PAGE>
AutoPACE System Functional Capabilities: An Overview
The AutoPACE System provides capabilities in the following functional
categories:
Configuration Management
AutoPACE System Configuration Management provides reports and analyses of the
translatable parameters that define the configuration of a Lucent Technologies
wireless system. Reports include both pre-defined geographic displays and pre-
defined tabular reports. Also, the AutoPACE System User Definable Report (UDR)
tool allows users to define their own reports of system configuration
parameters. An associated utility can compare configuration parameters at two
different points in time and display the differences. Currently, AutoPACE
cannot be used to modify the configuration of a system.
The AutoPACE database stores the most recent view of the system configuration
and this is refreshed with a frequency defined by the user (typically once per
day). Configuration Management can report on more than one system as well as
systems with more than one MSC.
Traffic Analysis
AutoPACE System Traffic Analysis can be used for hourly, daily, or longer-term
analyses, including weekly, monthly, or annual reports, limited only by the
amount of data stored by the user. Traffic and performance data for cell sites,
trunks, logical and physical antenna faces, IS-41 inter-system networking and
MSC elements are collected, analyzed, and displayed as user-defined tabular
reports and graphs. Traffic Analysis can report every count provided by the
AUTOPLEX Service Measurement sub-system and the domestic 5ESS Switch DCS.
Virtually all Traffic Analysis reports are user-defined./4/ The elements of a
report definition include several aspects, including: the system elements
included in a report, the counts included in a report, the data and time scope
of the report, the details of the presentation of the counts (including busy
hour analysis and data summarization details), and the organization, destination
and appearance of the output.
Traffic data, collected from the OMP as well as the domestic 5ESS Switch DCS on
an hourly basis, can be stored in the AutoPACE database for a period of time
determined by the user-provided storage capacity of the AutoPACE server.
Traffic Analysis can report on more than one system as well as systems with more
than one MSC.
------------------------
/4/ Currently, AutoPACE pre-defines the contents of 3 reports supporting
performance metrics recommended by Lucent Technologies and several reports
that support capacity planning trending recommended by Lucent Technologies.
Exhibit I Lucent Technologies Page 3 of 22
January 1999
<PAGE>
Maintenance Message Analysis
AutoPACE System Maintenance Message Analysis is used to study Call Processing
Failure (CPF) messages that are generated by the AUTOPLEX System when a call
terminates abnormally. Pre-defined and user-defined reports based on Call
Processing Failure messages can be used to troubleshoot performance problems
associated with cell site hardware, specific mobile units, or terminals
associated with a given power class, access technology, or manufacturer.
Maintenance Message Analysis also reports the frequency with which the various
types of Call Processing Failure messages occur. These counts can be reported
directly by the Maintenance Message Analysis module and can also be included in
the Traffic Analysis reports described above.
Call Processing Failure messages are collected in hourly files on the OMP and
transferred to the AutoPACE server where they are loaded into the AutoPACE
database. AutoPACE Maintenance Message Analysis can report on more than one
system as well as systems with more than one MSC.
Special Engineering Studies
AutoPACE System Special Engineering Studies (SES) support four types of
scheduled engineering studies:
. Power Level Measurements (PLM) to analyze RF signal and impairment
measurements
. Voice Channel Selection Activity (VCSA) to report the details of voice
channel selection decisions
. Handoff Matrix (HOM) to report the flow of calls between handoff neighbors
. RF Call Trace to analyze the signal strengths and digital error rates
received by a test terminal as a function of time
These studies are described in more detail below.
Note that the SES studies themselves are included as standard software in the
MSC and cell generic software and are not part of AutoPACE. However, the
AutoPACE System provides an easy and reliable interface to schedule any of the
SES studies and, after they have executed AutoPACE can collect the data to
analyze and report it in formats that support troubleshooting.
Exhibit I Lucent Technologies Page 4 of 22
January 1999
<PAGE>
AutoPACE System General Features
The following sections describe several general features that significantly
enhance the functional capabilities of the AutoPACE System.
User Interface
Many of the benefits of the AutoPACE System are realized at the Graphical User
Interface (GUI). The AutoPACE System provides a GUI to improve the efficiency,
effectiveness, and overall user-friendliness of its performance analysis
capabilities. The AutoPACE System is a Microsoft Windows application; as such
it shares the ease of use of other Windows applications. Users already familiar
with Windows applications will quickly relate to the AutoPACE System interface.
The AutoPACE System is designed to allow traffic engineers and technicians to
use any of the available capabilities with a minimum of special training.
AutoPACE System reports can be specified to run according to a user-defined
schedule. Moreover, the output is available as either tabular or graphical
reports that can be selected or redefined with just a few keystrokes or clicks
of the mouse. Map reports, which display configuration data based on geography,
provide added insight into the performance of a wireless system. Finally, On-
Line Help is available for efficient and easy access to reliable, up-to-date
information without interrupting the workflow.
Automation
The AutoPACE System allows a user to specify schedules for automatically
collecting traffic data from one or more AUTOPLEX Systems. Additionally, the
AutoPACE System provides the ability to automate the generation of user-defined
reports. A user can specify when to run a report (for example, on a daily or
other regular basis or as a one time case), which report(s) are to be run, and
the output destination.
Spreadsheet Compatibility
The AutoPACE System uses the Microsoft Excel spreadsheet program internally to
output reports (except for map reports). A User Defined Macro capability
provides all the flexibility and power of the spreadsheet to enhance the
analysis of the data. In addition, the AutoPACE System can load data directly
into Microsoft Excel. Thus the use of Excel allows a high degree of
customization and automation by the user, providing additional flexibility for
AutoPACE System users to display high-resolution color plots of primary traffic
data or secondary values calculated from them. For example, the user is able to
choose the axis variable in a plot to study traffic-related dependencies within
a system. Plots can be bar charts, pie charts, line graphs, or any of the other
standard Excel reporting formats.
Exhibit I Lucent Technologies Page 5 of 22
January 1999
<PAGE>
AutoPACE System Database
All data in the AutoPACE System are stored in a relational database, implemented
using INFORMIX(R)/5/ database software. The AutoPACE System database supports
three types of data:
. AUTOPLEX System Call Processing Failure Messages.
The database contains Call Processing Failure Messages collected from
AUTOPLEX System for use by AutoPACE System Maintenance Message
Analysis and reporting capabilities. The database also supports the
generation of counts that summarize the contents of those messages.
. AUTOPLEX System Configuration Parameters.
The AutoPACE System database contains a copy of configuration parameters
for the AUTOPLEX System, taken from the MSC Application Database/6/,
as well as user-supplied data such as geographic information or
network element names.
. AUTOPLEX System Service Measurements.
The AutoPACE System database contains service measurements collected from
AUTOPLEX System and 5ESS Switch DCSs for use by AutoPACE System
traffic analysis and reporting capabilities. Moreover, the database
supports the generation of a variety of summary data.
The AutoPACE System automatically accesses its database for all applications.
However, to meet special needs, users can directly access the AutoPACE databases
using the appropriate INFORMIX database tools./7/
Note that the Special Engineering Studies data, used exclusively for
troubleshooting, are not archived in the AutoPACE database.
--------------
/5/ INFORMIX is a registered trademark of INFORMIX Software, Inc.
/6/ The Application Database for the AUTOPLEX System resides on the MSC and
contains both subscriber and system configuration data.
/7/ Note that these tools will not be supplied with the AutoPACE System
product. In general, access other than read-only is not recommended.
Exhibit I Lucent Technologies Page 6 of 22
January 1999
<PAGE>
AutoPACE System Configuration
Architecture
The AutoPACE System incorporates a client-server architecture. The clients do
not contain databases and must access data from a server. A single server is
able to access one or more AUTOPLEX Systems via TCP/IP connections and to
support one or more clients, connected to the server by a local area network
(LAN/8/). This configuration allows multiple AutoPACE System clients to share a
common database. As a result, data are available to all users without wasteful
duplication and without the possibility of inconsistent data. The AutoPACE
System server, provides additional capabilities that significantly enhance the
effectiveness and utility of the AutoPACE System, including:
. automatic scheduled data collection
. database management for data storage and administration
. high speed data access via the LAN.
Data can be stored for any length of time required by the user, limited only by
the amount of user-provided disk storage capacity.
AutoPACE System Hardware/Software Platform
The AutoPACE System client, implemented on a PC as a Microsoft Windows product,
is positioned take advantage of technical innovations in the personal
computing/workstation market. The AutoPACE System server is provided on UNIX
System V Release 4 (Solaris/9/) running on a SUN SPARCStation.
AutoPACE System Switch Interface
The AutoPACE System is designed to be used only with Lucent Technologies
wireless systems. An AutoPACE System client interfaces with an AutoPACE System
server over a LAN. The AutoPACE System server, in turn, interfaces with one or
more systems, either through a dial-up WAN or dedicated data lines into a port
on the Operations and Management Platform (OMP)./10/
---------------------
/8/ While not strictly required, a LAN will provide the best performance. High
bandwidth data connections support remote access of the server by a client.
/9/ The currently supported Solaris release numbers can be obtained from your
Lucent Technologies wireless account representative.
/10/ Note that the AutoPACE System is not sold as a turnkey product. The
hardware required to support the tool as well as third party vendor
software (e.g., INFORMIX) must be provided by the customer. However, the
Lucent Technologies Customer Technical Support Organization will provide
support to help identify the specific hardware, software, configuration,
and capacity required for a particular installation.
Exhibit I Lucent Technologies Page 7 of 22
January 1999
<PAGE>
[Fifteen Pages of Product Description Information Deleted Pursuant to
Confidential Treatment Request]
Exhibit I Lucent Technologies Page 8 of 22
January 1999
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
LUCENT TECHNOLOGIES
AUTOPLEX(R) System 1000
Operations Administration and Maintenance (OA&M)
Functional Overview
July 27, 1999
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 1 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
1. INTRODUCTION
1.1 Overview
The AUTOPLEX(R) system 1000 provides a rich set of Operations, Administration
and Maintenance (OA&M) features to monitor, configure, and control an AUTOPLEX
communications network. These features aim to maximize the quality of service
offered to end customers of the system by:
1. Minimizing down time through robust redundancy schemes and fast
automatic recovery from hardware and software faults,
2. Providing a broad set of features to maximize the efficiency of the
operations staff assigned to monitor and control the system, and
3. Supporting a complete set of performance measurements; which enables
the efficient configuration and engineering of the system.
1.2 Scope
The features described in this document are currently available, or are under
development for delivery in 1999. This document does not address future product
evolution plans. This document will be updated yearly to reflect new features
that are added to the product.
The focus of this document is OA&M features offered in the Autoplex 1000 System,
including the Access Manager, 5ESS-2000 DCS, Operation Maintenance Platform -
Simplex, Operational Maintenance Platform-FX, and AutoPACE.
1.3 Guide to the Document
This document is written in a layered fashion starting with a high level product
description, leading to OA&M feature descriptions, and finishing with a
discussion of user and system OA&M interfaces.
Section 2 provides an architectural overview of the AUTOPLEX system, identifying
the Network Elements that comprise the system and their associated redundancy
strategies.
Section 3 provides a functional decomposition of the AUTOPLEX OA&M features.
The features are described according the classical Network Management functional
areas:
. Fault Management,
. Performance Management,
. Configuration Management,
. Accounting Management, and
. Security Management.
Section 4 describes the hardware and user interfaces that provide access to the
OA&M features.
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 2 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Section 5 describes how the OA&M interfaces may be integrated into a network
operations environment.
1.4 Glossary
The official name of this product is the AUTOPLEX System 1000 Cellular
Telecommunications System. Throughout this document the product will be
referred to simply as the "AUTOPLEX system".
<TABLE>
<S> <C>
AMA Automatic Message Accounting
AMATPS Automatic Message Accounting Teleprocessing System
AP Application Processor
APC Application Processor Cluster
APCC Application Processor Cluster Complex
ASCII American Standard Code for Information Interchange
CDMA Code Division Multiple Access
CDN Call Processing/ Data Base Node
CDR Call Detail Record
CSN Cell Site Node
DLN Direct Link Node
DCI Dual-Serial Channel Computer Interface
DCS Digital Cellular Switch
ECP Executive Cellular Processor (Access Manager)
ECPC Executive Cellular Processor Complex (Access Manager)
EIN Ethernet Interface Node
EML Element Management Layer
EMS Element Management System
FTP File Transfer Protocol
GUI Graphical User Interface
HOM Hand Off Matrix
ICN Inter-Cellular Node
IMS/CNI Inter-processor Message Switch/Common Network Interface
ITU International Telecommunications Union
LAN Local Area Network
MSC Mobile Switching Center
Network Element Processing node in the AUTOPLEX system
NML Network Management Layer
NOCC Network Operations Control Center
NVM Non-Volatile Memory
OA&M Operations, Administration and Maintenance
OFD Operational Fault Detection
OMP Operations and Management Platform
OSI Open Systems Interconnection
OSS Operations Support System
PLM Power Level Measurements
PPP Point to Point Protocol
PSTN Public Switched Telephone Network
RCS Radio Cluster Server
RC\V Recent Change/Verify
RF Radio Frequency
RPCN Ring Peripheral Controller Node
</TABLE>
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 3 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
<TABLE>
<S> <C>
ROP Receive Only Printer
SCCS Switching Control Center System
SNMP Simple Network Management Protocol
SS7 Signaling System 7
System Administrator Person responsible for Unix Administration of AUTOPLEX Network Elements
TCP/IP Transmission Control Protocol/Internet Protocol
TEA Translations Entry Assistant
Technician Person responsible for day to day maintenance of equipment
TMN Telecommunications Management Network
VCDX Very Compact Digital Exchange
VCSA Voice Channel Selection Activity
WAN Wide Area Network
</TABLE>
2. SYSTEM DESCRIPTION
The AUTOPLEX system is comprised of a diverse network of processors required to
support a wireless switching system. Figure 2.0-1 shows the major components
that comprise the AUTOPLEX system architecture. Figure 2.0-1 does not show all
the AUTOPLEX Network Elements and interfaces. More detailed diagrams may be
found later in the document.
[Figure 2.0-1 AUTOPLEX System Architecture]
The AUTOPLEX system is designed with a high degree of redundancy to provide
reliable services to wireless subscribers. The AUTOPLEX Network Elements are
each designed with a redundancy scheme that is best suited to the service that
they provide. The following subsections defines the role of each of the
AUTOPLEX Network Element and its associated redundancy strategy.
2.1 Operations and Management Platform (OMP)
The OMP is an adjunct processor connected to the ECP via a redundant pair of
high speed data links. The OMP is not actively involved in processing wireless
calls. The OMP hosts a wide range of OA&M applications including:
. collecting and storing service measurement data to support Performance
Management,
. collecting special study data to support Performance Management,
. providing a forms based front end for the ECP Recent Change/Verify
(RC/V) application for Configuration Management,
. maintaining log files for AUTOPLEX event reports,
. supporting a near real time billing interface for Accounting
Management,
. storing cell site inventory data for Configuration Management, and
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 4 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
. storing backup software images for the AP and the Flexent cell
products.
The multi-window OMP client terminals (attached to the OMP's Ethernet) provide
access to the OA&M applications for maintaining all Network Elements in the
AUTOPLEX system (ECPC, cell sites and 5ESS-2000 DCS). See section 4.2 for more
details.
The OMP is built on a scalable Sun computing platform. It utilizes UNIX System
V Release 4 (Solaris(R)/1/) and supports open systems networking standards. The
OMP acts as an interface point into the service provider's Wide Area Network
(WAN) for network operations. Operations Support Systems (OSSs) can connect to
the OMP to support network level Fault Management, Performance Management,
Configuration Management, and Accounting Management. See Section 4.3 for more
details on AUTOPLEX interfaces to the OSSs.
OMP enhancements, EOY1999 will introduce a new OMP platform, the Flexent OMP-FX.
This latest platform will provide the same details as listed above, however, on
an ongoing basis provide many more applications. In addition, the OMP-FX
platform is design to with the Sun Microsystems Netra T Server, and ensures high
data reliability using mirroring disk drives. The OMP-FX will support the
Element Management System associated with the Flexent Applications Processor
(AP) and Enhanced Electronic Software Distribution. The total number of
sessions available currently for the OMP-FX will remain the same as the OMP-
Simplex (12 Sessions), however, enhancements are currently being developed to
bring the session total to up to 100, this enhancement is currently scheduled
for EOY2000.
2.2 AutoPACE(R)
The AutoPACE system is an adjunct set of processors (the AutoPACE server, and
multiple AutoPACE client PCs) that monitor and report AUTOPLEX performance data.
The AutoPACE system is designed to be used only with the AUTOPLEX system, Figure
2.6-1 below shows a typical AutoPACE configuration. The AutoPACE server
receives performance data from the OMP and stores it in a data base. The
AutoPACE client PCs execute AutoPACE applications with support from the AutoPACE
server.
/1/ Solaris is a registered trademark of Sun Microsystems, Inc.
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 5 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
[Figure 2.1 Typical AutoPACE Configuration]
A single AutoPACE server connects to multiple AUTOPLEX systems and supports one
or more AutoPACE client PCs, connected to the server by a Local Area Network
(LAN). The AutoPACE client applications run Windows(TM) applications on a PC.
The AutoPACE server is based on UNIX System V Release 4 (Solaris/2/) running on
a Sun SPARCStation(R)/3/.
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
___________________
/2/ The currently supported Solaris release numbers can be obtained from your
Lucent Technologies wireless account representative.
/3/ SPARC station is a registered trademark of SPARC International, Inc.
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 6 of 24
<PAGE>
Exhibit J to the Cricket Communications, Inc. System Equipment Purchase
Agreement
[Eighteen Pages of Technical Information Deleted Pursuant to
Confidential Treatment Request]
--LUCENT TECHNOLOGIES PROPRIETARY-- July 27, 1999
Solely for authorized persons having a need to know pursuant to Company
instructions
Page 7 of 24
<PAGE>
Exhibit K to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Lucent Technologies Network Wireless Systems
[Seven Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit L to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Standard Intervals
[Two Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
<PAGE>
Exhibit L
Cricket Communications, Inc.
System Equipment Purchase Agreement
ORDERING PROCEDURES
1.0 Orders shall be in writing, transmitted electronically or in any other
manner mutually agreed to by the parties and shall specify:
(a) description of Products and Services, inclusive of any
numerical/alphabetical indentifications, referenced in the Vendor's
documentation;
(b) requested delivery, completion and/or in-service date as
applicable;
(c) location to which the Products are to be shipped and/or location
at which Services are to be performed;
(d) location to which invoices shall be rendered for payment;
(e) Owner's Order number,
(f) price or Owner's Request For Quotation number, if applicable;
(g) a list and description of the Software to be licensed if
applicable;
(h) the description, serial number, if known, and location of the
processor for which Software is being furnished.
1.1 EF&I, F&I and E&F Orders:
1.1.1 Vendor shall acknowledge receipt of Owner's Order within ten
(10) workdays of receipt of such Order. Vendor shall accept or reject
in writing Owner's requested delivery and/or completion date, within
three (3) weeks from receipt of Order. In the event Vendor fails to
accept or reject any such requested delivery or completion date within
the aforesaid period, such dates shall be deemed accepted.
1.1.2 Should Owner require Vendor's acceptance or rejection of
requested delivery and/or completion dates in less three (3) weeks,
Vendor shall use all reasonable efforts to respond in the interval
requested by Owner.
1.1.3 In the event that Vendor cannot accept the specified delivery
and/or completion date, Owner may cancel said Order in writing without
penalty or obligation of any kind or negotiate a new delivery and/or
completion date mutually acceptable to both parties, which date shall
be acknowledged in writing by Vendor within ten (10) workdays of such
agreement. Such cancellation shall not be deemed to relieve Owner of
its obligations to source subsequent Orders for Goods and Software on
Vendor in accordance with the Contract provided that the delivery
and/or completion commitment which Vendor is willing to make is
consistent with Vendor's then current standard interval for the Goods,
Software and Services.
1.1.4 Should Owner's requested delivery and/or completion dates on
an Order compress the equipment engineering or installation interval
beyond that referenced in Vendor's associated Firm Price Quotation,
upon written agreement by Owner, Vendor shall be authorized to render
additional billing for equipment engineering and installation premium
time incurred or additional resources incurred, as required to improve
the quoted equipment engineering and installation intervals to match
Owner's requested dates or mutually agreeable alternative dates.
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 3 of 7
<PAGE>
Exhibit L
Cricket Communications, Inc.
System Equipment Purchase Agreement
1.2 Furnish Only Orders:
1.21. Vendor shall acknowledge receipt of Owner's Order in writing
and shall accept or reject the requested delivery date in writing
within ten (l0) workdays after receipt of such Order. In the event
Vendor fails to accept or reject any such requested delivery date
within the aforesaid period, such date shall be deemed accepted.
1.2.2 In the event that Vendor cannot meet the requested delivery
date, Owner may cancel said Order in writing without penalty or
obligation of any kind or negotiate a new delivery and/or completion
date mutually acceptable to both parties, which date shall be
acknowledged in writing by Vendor within ten (l0) workdays of such
agreement. Such cancellation shall not be deemed to relieve Owner of
its obligations to source the ordered Products and Services from
Vendor in accordance with the Contract, provided that the delivery
and/or completion commitment which Vendor is willing to make is
consistent with Vendor's then current standard interval for the
Products and Services.
1.3 Installation Only Orders:
1.3.1 Owner shall provide Vendor its specifications and
installation requirements which shall include Owner's requested job
completion date. Within ten (10) workdays of Vendor's receipt of such
information, Vendor shall provide a FPQ, which details prices for the
installation Services requested by the Owner.
1.3.2 Within four (4) weeks following receipt of the Vendor's FPQ,
Owner shall accept or reject said FPQ. Owner's acceptance of the FPQ
will be confirmed by placement of an Order during this four (4) week
period. Vendor shall acknowledge receipt of said Order within ten
(l0) workdays following placement of said Order. In the event Owner
rejects Vendor's FPQ, Vendor will return all Owner's specifications
and installation requirements within ten (10) workdays of such
rejection.
1.3.3 Should Owner's requested completion date on an Order compress
the installation interval beyond that referenced in Vendor's
associated Firm Price Quotation, upon written agreement by Owner,
Vendor shall be authorized to render additional billing for
installation premium time incurred or additional resources incurred,
as required to improve the quoted installation intervals to match
Owner's requested dates or mutually agreeable alternative dates.
1.4 Change Orders:
1.4.1 Any changes to an original Order and any resulting
adjustment, including but not limited to schedules and price, shall be
mutually agreed upon and subsequently detailed in a written Change
Order referencing the original Order. Owner and/or Vendor as
appropriate shall provide supplementary documentation indicating all
changes.
1.4.2 Change Order is Vendor's term for additional work it
undertakes at the specific request of an employee of Owner. Owner
agrees that upon written authorization of a Change Order by any of
Owner's employees, Vendor shall perform the supplemental work,
provided however, that Vendor forwards a copy of said written
authorization to Owner's engineering department within ten (10)
business days.
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 4 of 7
<PAGE>
Exhibit L
Cricket Communications, Inc.
System Equipment Purchase Agreement
1.5 Ordering Address:
Orders placed by Owner hereunder shall be sent to:
Lucent Technologies Inc.
22 Technology Parkway South, Suite 200
Norcross, GA 30092
Attention: Jan Broome
2.0 FPQ
2.1 Owner may submit to Vendor a Request For Quote for a future
potential Order. With respect to cell site Products and Services,
Vendor shall use all reasonable efforts to respond in writing with its
FPQ within two (2) weeks of receipt of the request. Intervals for
other Products and Services shall be as mutually agreed. Unless
otherwise specified in Vendor's FPQ, Owner shall have four (4) weeks
from receipt of Vendor's FPQ to decide whether to Order the Products
and/or Services referenced in the FPQ. In the absence of such action
by Owner, the FPQ lapses.
3.0 Expediting of Orders:
Owner and Vendor will work together to expedite all aspects of an Order in
the event Owner requests an Order be expedited.
4.0 Order Hold, Order Termination
4.1 Owner may suspend, hold or terminate any Order or portion thereof
except with respect to Products which have already shipped or Services
which have already been performed.
4.1.1 EF&I, E&F and F&I Orders
For purposes of this Section, "price" represents equipment
engineering and material charges; and "shipping interval"
represents published equipment engineering and manufacturing
interval. In the event Owner terminates an EF&I E&F or F&I
Order or portion thereof, the following termination charges
will apply.
<TABLE>
<CAPTION>
--------------------------------------------------
Percent of Shipping Termination Charge
Interval
--------------------------------------------------
<S> <C>
up to 25% [***]
--------------------------------------------------
26% to 50% [***]
--------------------------------------------------
51% to 75% [***]
--------------------------------------------------
greater than 76% [***]
--------------------------------------------------
</TABLE>
4.1.2. Furnish Only Orders
For purposes of this Sub-Section, "price" represents price for
Products for Furnish Only Orders; and "shipping interval"
represents the elapsed time between the date Owner's Order is
received by Vendor and the committed date of shipment from
Vendor's shipping location. Should the Owner terminate Furnish
Only Orders during the committed interval,
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 5 of 7
<PAGE>
Exhibit L
Cricket Communications, Inc.
System Equipment Purchase Agreement
the following table will determine termination charges. The word
"committed" in this Section means the mutually agreed upon date.
<TABLE>
<CAPTION>
------------------------------------------------------
Percent of Committed Termination Charge
Shipping Interval
------------------------------------------------------
<S> <C>
Up to 10% [***]
------------------------------------------------------
11% to 20% [***]
------------------------------------------------------
21% to 40% [***]
------------------------------------------------------
41% to 60% [***]
------------------------------------------------------
61% to 80% [***]
------------------------------------------------------
81% to 100% [***]
------------------------------------------------------
</TABLE>
4.2 All termination charges described above in this Section will take
into consideration reusability of Products by Vendor.
CHANGE NOTICES
1.0 With respect to product changes, modifications, or substitutions,
Vendor shall notify Owner in writing sixty (60) days prior to their
effective dates, except Vendor will, unless emergency conditions
require otherwise, advise Owner not less than thirty (30) days prior
to implementing any Class A change defined below.
1.1 All notifications of such changes shall be provided at no charge
and be disseminated by Vendor in accordance with distribution lists
provided by Owner and shall contain the following information:
1.1.1 Vendor Information: Vendor's name, address, technical
contact name and phone number.
1.1.2. Product Change Notice Number: Number conforming to a
single sequential numbering scheme used by Vendor.
1.1.3 Issue Date of Change: Date Product Change Notice is
transmitted.
1.1.4 Product Description: Description of the product affected
(e.g., Line Card or 24 foot aluminum ladder).
1.1.5 New Product Code: Unique identity of the changed product
(e.g., Circuit Pack CP 11101, Series 1, List 4).
1.1.6 Old Product Code: Unique identity of the product being
changed (e.g., Circuit Pack CP 11101, Series 1, List 3).
1.1.7 New PID Code(s): The alpha-numeric PID code(s) assigned to
the changed product, if applicable.
1.1.8 Old PID Code(s): PID codes of all equipment associated
with this change (see Item 1.1.9), if applicable.
1.1.9 Associated products or changes Affected: Coordinated
product changes that must be applied in conjunction with, or
prior to, this change.
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 6 of 7
<PAGE>
Exhibit L
Cricket Communications, Inc.
System Equipment Purchase Agreement
1.1.10. Drawing Number: The circuit (schematic) drawing number
and issue that incorporates the change (e.g., SD l1101-01, Issue
11).
1.1.1 l Change Classification: Classification of the change (A
or B).
1.1.12 Classification Substantiation: Details of why the
Proposed Classification is appropriate.
1.1.13 Reason For Change: Detailed explanation of why the change
is necessary, for example: what are the symptoms of the condition
being corrected?
1.1.14 Description of Change: Installation details of change,
for example:
a. What is to be changed?
b. How is it to be changed?
c. How can change be tested/verified?
1.1.15 Effect of Change: Description of the effect of the change
on:
a. Service
b. Transmission
c. Traffic
d. Maintenance
e. Reliability
f. Commercial Specifications
g Control Specifications
h. Safety
1.1.16 Material Affected: Apparatus, wiring, circuit packs,
etc., affected by change.
1.1.17 Documentation Affected: List of associated drawings,
programs, practices, manuals, nomenclature etc. affected by the
change.
1.1.18 Vendor Implementation Date: Date after which all newly
manufactured Products and/or Services will incorporate the
change.
1.1.19 Modification Expiration Date (for Class A changes only):
Date after which Vendor terminates responsibility for applying
the change; i.e. providing modification material, etc., on a non-
billable basis.
1.1.20 Modification Location: Vendor recommendation for field or
factory installation of change.
1.1.21 Location and Quantity of Equipment (if the Vendor has
these records): The location and quantity of working or spare
equipment, in the hands of the Owner, that requires the change.
1.1.22 Implementation Schedule: Proposed schedule.
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 7 of 7
<PAGE>
Exhibit M to the Cricket Communications, Inc. System Equipment Purchase
Agreement
CDMA Enhanced Primary Minicell Overview
[Twelve Pages of Technical Information Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit N
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
1.1 HOT-LINE SERVICE
Vendor will provide an "800 Hot-Line" telephone Service for direct
telephone support to Owner in an emergency situation. The Hot Line
telephone number is 1-800-225-4672. This Service will be available
twenty-four (24) hours a day, seven (7) days a week for Severity
Levels 1 and 2 conditions only. Prior to placing the call to the Hot-
Line, the following steps shall have been completed by Owner with
assistance of Vendor when required:
(a) Identification of the condition and its isolation to a particular
component of the system believed to be Vendor's responsibility.
(b) Collection of sufficient supporting documentation from the system
for inclusion in the trouble report
(c) Determination that there are no outstanding fixes which correct
the condition.
When a problem is identified as a fix to Seller's infrastructure,
whereas a fix is not in compliance within Seller's specifications, the
Vendor will supply the solution and make it available to Owner.
1.2 RESPONSE TIME INTERVALS
The Owner due date, is set by default based on the Severity Field. If
the Owner negotiates a new date with the Vendor, the mutually agreed
date will apply.
Table 1 Response Tune Intervals
Severity Calendar Days to Resolve
1 7
2 45
3 90
4 180
Once the solution is found, Vendor will supply it for testing and use
on the failed system.
1.3 NORMAL TROUBLE-REPORTING PROCEDURES
Owner requirements and routines for reporting Severity Levels 2, 3 and
4 conditions are as follows:
(a) Owner shall prepare a trouble report, including the appropriate
supporting documentation and forward it to Vendor at the address
provided by Vendor.
(b) Owner may also telephone the Vendor's Customer Wireless Technical
Support Center for answers to general operational questions about
the Software or Equipment and/or assistance in correcting
Severity Level 3 and 4 conditions. The
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 1 of 5
<PAGE>
Exhibit N
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
return call will either provide the requested information,
request additional information, or report on the status of
corrective action on the trouble report.
(c) The calling Owner's personnel shall provide the following
information:
. Caller's name, location, and company
. Call-back telephone number
. System name, location
. Generic issue
. Equipment location, type and serial number
. Nature of question or situation.
1.4 SEVERITY LEVELS / PRIORITY
Severity 1
. Total system failure,
. Loss of a major system component
. Loss of emergency capability
. Significant reduction of revenue generating capability
Severity 2
. Loss of system's redundancy
. Notable functional failure of a specific call type
. Notable functional loss of revenue due to a billing error
. Loss of diagnostic functionality
. Loss of reporting functionality
Severity 3
. Intermittent faults
. Marginal functional failure of a specific call type
. Marginal functional loss of revenue due to a billing error
. Invalid data
Severity 4
. Any questions regarding documentation
. General informational questions
. Other investigations that are not marked 1, 2 or 3
[***]
[*] Certain material (indicated by an asterisk) has been omitted from
this document pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and
Exchange Commission.
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 2 of 5
<PAGE>
Exhibit N
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
[Three Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
LUCENT TECHNOLOGIES, INC.
PROPRIETARY INFORMATION
Page 3 of 5
<PAGE>
Exhibit O
to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
Training
Description
August, 1999
<PAGE>
[Fifteen Pages of Technical Information Deleted Pursuant to Confidential
Treatment Request]
<PAGE>
Exhibit P to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
LUCENT TECHNOLOGIES DOCUMENTATION
Product Documentation
Vendor will provide Owner the documentation needed to support its PCS-CDMA
products. This documentation is in the form of a CD-ROM. The CD-ROM
contains the complete set of Wireless documentation. One set of
documentation, contained on a CD-ROM, will be provided for each Owner, MSC
location, headquarters and regional offices. Updates to these documents
(also on CD-ROM) will be provided to Owner free of charge during the
warranty period. Owner may purchase any additional documentation from
Vendor's Customer Information Center.
Autoplex System 1000
Customer Documentation Catalog
Issue 13 January 1999
Contents
About This Document
. Introduction
. Reason for Reissue
. How to Use This Catalog
. How to Comment on This Document
Ordering Information
. Final Documents
. CTSO News Bulletins
. Documentation Packaging
Electronic Documentation
. System Requirements
. Ordering Electronic Documentation
05/10/99 Lucent Technologies EXHIBIT P-1
This document contains proprietary information of
Lucent Technologies
and is not to be disclosed or used except in accordance
with applicable agreements
Page 1 of 3
<PAGE>
Exhibit P to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
Autoplex(R) System Documents
. Engineering
. Operation and Maintenance
. Descriptive
. Software
. Power
Autopace Documents
Operations and Management Platform (OMP) Documents
Cell Site Documents
Autoplex System 1000 Optional Feature Documents
. Optional Feature Documents
. Other AUTOPLEX System 1000 Feature Documents
Vendor 3B20D Executive Cellular Processor (ECP) Documents
. Operation and Maintenance
. Descriptive
. AT&T 3B20D Model 2 and Model 3 computers Software
. Power
Vendor 3B21D Executive Cellular Processor (ECP) Documents
. Engineering
. Operation and Maintenance
. Descriptive
. Software
MSC Complex Documents
. Engineering
. Installation
. Maintenance
. Descriptive
. Provisioning
05/10/99 Lucent Technologies EXHIBIT P-1
This document contains proprietary information of
Lucent Technologies
and is not to be disclosed or used except in accordance
with applicable agreements
Page 2 of 3
<PAGE>
Exhibit P to the
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
5ESS (C) Switch Documents
. Engineering
. Operation and Maintenance
. Descriptive
. Software
PCS Documents
. Engineering
. PCS CDMA
. PCS TDMA
Cellular Digital Packet Data (CDPD) Documents
. DACS (R) II ISX Release 1.0 MML
. AUTOPLEX System 1000 CDPD
. Veritas
. SynOptics
. Sun/Solaris
. Miscellaneous CDPD Documentation
. Cellular Digital Packet Data Engineering Drawings
Transmission Documents
Customer Information Bulletins
Engineering Letters
Schematic Drawings
Wall Charts
Optional Binders
Autoplex System Document Kits
. Ordering a Complete Set of Paper Documentation
. Kit Descriptions
Index
05/10/99 Lucent Technologies EXHIBIT P-1
This document contains proprietary information of
Lucent Technologies
and is not to be disclosed or used except in accordance
with applicable agreements
Page 3 of 3
<PAGE>
EXHIBIT Q
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
INSURANCE
Each party shall maintain during the term of this Contract, at its own cost and
expense, carry and maintain at a minimum, the insurance coverage listed below.
If either party is not self-insured, that party shall maintain such coverages
having a "Best's" rating of at least B+XIII. Vendor shall not commence any work
hereunder until each party has fulfilled all insurance requirements herein.
Each party shall require its subcontractors and agents to maintain the same
insurance coverage listed below.
- Workers' Compensation insurance with statutory limits as required in
the state(s) of operation; and providing coverage for either party's
employee entering onto Owner premises, even if not required by
statute, Employers' Liability or "Stop Gap" insurance with limits of
not less than $500,000 for each occurrence.
- Commercial General Liability Insurance covering claims for bodily
injury, death, personal injury or property damage occurring or arising
out of the performance of this Agreement, including coverage for
independent contractor's protection (required if any work will be
subcontracted), premises-operations, products/completed operations and
contractual liability with respect to the liability assumed by either
party hereunder.
- The limits of insurance shall be:
-Each Occurrence (Bodily Injury/Property Damage) $1,000,000.00
-General Aggregate Limit (Annual Aggregate) $2,000,000.00
-Products-Completed Operations Limit (Annual Aggregate) $1,000,000.00
-Personal Advertising Injury Limit (Each Occurrence) $1,000,000.00
- Comprehensive Automobile Liability Insurance covering ownership,
operation and maintenance of all owned, non-owned and hired motor
vehicles used in connection with the performance of this Agreement,
with limits of at least $1,000,000 combined single limit for bodily
injury and property damage.
The insurance limits required herein may be obtained through any combination of
self-insurance, primary and excess or umbrella liability insurance. Each party
shall furnish the other prior to the start of the work, if requested by the
other party, 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, each party shall have the option where permitted by law to self-
insure any or all of the foregoing risks.
Page 1 of 1
<PAGE>
Exhibit S to the Cricket Communications, Inc. System Equipment Purchase
Agreement
Markets
[One Page of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
