<PAGE>
As filed with the Securities and Exchange Commission on November 4, 1999
Registration No. 333-85515
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Amendment No. 7
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
Wireless Facilities, Inc.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7380 13-3818604
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------
9805 Scranton Road, Suite 100
San Diego, CA 92121
(858) 824-2929
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
Massih Tayebi, Ph.D.
Chief Executive Officer
Wireless Facilities, Inc.
9805 Scranton Road, Suite 100
San Diego, CA 92121
(858) 824-2929
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies To:
<TABLE>
<S> <C>
Frederick T. Muto, Esq. Bruce M. McNamara, Esq.
Lance W. Bridges, Esq. Virginia W. Wei, Esq.
Nancy D. Krueger, Esq. Robert C. Atherton, Esq.
Cooley Godward LLP Wilson Sonsini Goodrich & Rosati
4365 Executive Drive, Suite 1100 650 Page Mill Road
San Diego, CA 92121 Palo Alto, CA 94304
(858) 550-6000 (650) 493-9300
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
---------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) of the Securities Act, please check the following box
and list the Securities Act registration serial number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth all expenses payable by the Registrant in
connection with the sale of the common stock being registered. All of the
amounts shown are estimates except for the SEC registration fee, the NASD
filing fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
Amount to
be Paid
----------
<S> <C>
SEC Registration fee............................................. $ 19,460
NASD filing fee.................................................. 7,500
Nasdaq National Market listing fee............................... 95,000
Blue sky qualification fees and expenses......................... 2,500
Director and officer liability insurance......................... 10,000
Printing and engraving expenses.................................. 150,000
Legal fees and expenses.......................................... 400,000
Accounting fees and expenses..................................... 275,000
Transfer agent and registrar fees................................ 3,000
Miscellaneous.................................................... 37,540
----------
Total........................................................ $1,000,000
==========
</TABLE>
Item 14. Indemnification Of Officers And Directors
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrant's certificate of incorporation and bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its directors and officers
to the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Registrant or its stockholders, for
improper
II-1
<PAGE>
transactions between the director and the Registrant and for improper
distributions to stockholders and loans to directors and officers. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against all expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made
a party by reason of the fact that such person is or was a director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The indemnification agreements also
set forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
Item 15. Recent Sales of Unregistered Securities
Since December 14, 1994 (inception), the Company has sold and issued the
following unregistered securities:
1. During the period, the Company granted incentive stock options with an
exercise price of $.0033 per share to employees, officers and directors of the
Company under its 1996 Stock Plan (the "1996 Plan") covering an aggregate of
1,012,500 shares of the Company's Common Stock. All of the options granted
under the 1996 Plan were either exercised prior to December 31, 1998 or expired
on that date. No options remain outstanding under the 1996 Plan.
2. During the period, the Company issued 29,100,000 shares of its Common
Stock to employees, board members and Sean Tayebi for $655,000, 3,245,190 of
which the Company repurchased in August of 1998. An additional 780,720 shares
were issued pursuant to the exercise of incentive stock options granted under
the 1996 and 1997 Plans and non-statutory stock options granted outside the
plans, 25,132 of which the Company repurchased at market value on the date of
repurchase, and 600,000 shares were issued pursuant to the exercise of the 1997
and 1998 Warrants.
3. In August 1998, pursuant to the terms of an equity financing of the
Company, the Company issued an aggregate of 1,682,692 shares of Series A
Preferred Stock to Oak Investment Partners VIII, Limited Partnership, Worldview
Technology Partners I, L.P., Worldview Technology International I, L.P.,
Worldview Strategic Partners I, L.P., Fred Warren and Stanford University for
$20,999,996.16.
4. In February 1999, pursuant to the terms of an equity financing of the
Company, the Company issued an aggregate of 2,727,273 shares of Series B
Preferred Stock to Oak Investment Partners VIII, Limited Partnership, Oak VIII
Affiliates Fund, LP, Worldview Technology Partners I, L.P., Worldview
Technology International I, L.P., Worldview Strategic Partners I, L.P., for
$15,000,001.50.
5. In January 1999, we entered into an agreement for the purchase of the
assets of B Communications International, Inc. The purchase price the Company
paid for such assets consisted of approximately $2,900,000 in cash and notes
and warrants to purchase 240,381 shares of its Common Stock at an exercise
price of $4.16 per share.
II-2
<PAGE>
6. In June 1999, the Company entered into an agreement for the purchase of
the assets of C.R.D., Inc. The purchase price we paid for such assets consisted
of indebtedness, approximately $540,000 in cash and warrants to purchase 4,000
shares of our Common Stock at an exercise price of $5.50 per share.
The sales and issuances of securities in the transactions described in
paragraphs (1) and (2) above were deemed to be exempt from registration under
the Securities Act by virtue of Rule 701 promulgated thereunder (in that they
were offered and sold either pursuant to written compensatory benefit plans or
pursuant to a written contract relating to compensation, as provided by Rule
701) or were deemed to be exempt from registration under the Securities Act by
virtue of Section 4(2) and/or Regulation D promulgated thereunder.
The sales and issuances of securities in the transactions described in
paragraphs (3) through (6) above were deemed to be exempt from registration
under the Securities Act by virtue of Section 4(2) and/or Regulation D
promulgated thereunder.
The recipients represented their intention to acquire the securities for
investment purposes only and not with a view to the distribution thereof.
Appropriate legends are affixed to the stock certificates issued in such
transactions. Similar legends were imposed in connection with any subsequent
sales of any such securities. All recipients either received adequate
information about the Company or had access, through employment or other
relationships, to such information.
Item 16. Exhibits And Financial Statement Schedules
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement.*
3.1 Amended and Restated Certificate of Incorporation, as currently in
effect.*
3.2 Form of Restated Certificate of Incorporation, to be filed and become
effective prior to the closing of this offering.*
3.3 Form of Restated Certificate of Incorporation, to be filed and become
effective upon the closing of this offering.*
3.4 Bylaws, as currently in effect.*
3.5 Form of Bylaws, as amended to become effective upon the closing of
this offering.*
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5.
4.2 Specimen Stock Certificate.*
5.1 Opinion of Cooley Godward LLP.
10.1 1997 Stock Option Plan.*
10.2 Form of Stock Option Agreement pursuant to the 1997 Stock Option Plan
and related terms and conditions.*
10.3 1999 Equity Incentive Plan.*
10.4 Form of Stock Option Agreement pursuant to the 1999 Equity Incentive
Plan.*
10.5 1999 Employee Stock Purchase Plan and related offering documents.*
10.6 R&D Building Lease by and between the Company and Sorrento Tech
Associates as amended.*
10.7 Credit Agreement by and among the Company, various banks and Imperial
Bank dated as of September 17, 1999.
10.8 Second Amended and Restated Investor Rights Agreement by and among the
Company and certain stockholders of the Company dated as of September
17, 1999.*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.9 Employment Offer Letter by and between the Company and Scott Fox dated
as of April 9, 1999.*
10.10 Form of Indemnity Agreement by and between the Company and certain
officers and directors of the Company.*
10.11 Amended Promissory Note from the Company to Masood K. Tayebi dated as
of August 2, 1999.*
10.12 Amended Promissory Note from the Company to Massih Tayebi dated as of
August 2, 1999.*
10.13 Amended Promissory Note from the Company to Sean Tayebi dated as of
August 2, 1999.*
10.14 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 28, 1997.*
10.15 Form of Subscription and Representation Agreement by and between the
Company and each of Scott Anderson and Scot Jarvis dated as of
February 28, 1997.*
10.16 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 1, 1998.*
10.17 Form of Bill of Sale and Assignment Agreement by and between the
Company and each of Massih Tayebi and Masood K. Tayebi dated as of
June 30, 1999.*
10.18 Assignment of Note by and among the Company, Masood K. Tayebi and
Massih Tayebi dated as of June 30, 1999.*
10.19 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.20 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.21 Services Agreement by and between WFI de Mexico S. de R.L. de C.V. and
Ericsson Telecom, S.A. de C.V. dated as of August 4, 1999.+
10.22 Amended and Restated Master Services Agreement by and between the
Company and TeleCorp Holding Communications, Inc., dated as of October
12, 1999.
10.23 Master Services Agreement by and between the Company and Nextel
Partners Operating Corp. dated as of January 18, 1999.+
10.24 Agreement by and between the Company and Siemens Aktiengesellschaft,
Berlin and Munchen, Federal Republic of Germany, represented by the
Business Unit Mobile Networks.+
10.25 Master Services Agreement by and between the Company and Triton PCS,
Operating Company, L.L.C. dated as of January 19, 1998, as amended.+
10.26 Microwave Relocation Services Agreement by and between Entel
Technologies, Inc. and Triton PCS Operating Company, L.L.C. dated as
of February 11, 1998.+
10.27 Site Development Services Agreement by and between Entel Technologies,
Inc. and Triton PCS, Inc. dated as of December 10, 1997.+
10.28 Sales Agreement for Products and Services by and between the Company
and Integrated Ventures, LLC dated as of April 19, 1999.+
10.29 Settlement Agreement and Mutual General Releasee by and between the
Company and Total Outsourcing, Inc dated as of June 30, 1999.*
10.30 Straight Note from Scott Fox and Kathleen W. Fox to the Company dated
as of July 8, 1999.*
10.31 Master Services Agreement by and between the Company and Metricom,
Inc. dated as of September 21, 1999. +
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
21.1 List of subsidiaries.*
23.1 Consent of KPMG LLP, Independent Public Accountants.*
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
23.3 Consent of M.R. Weiser LLP, Independent Public Accountants.*
24.1 Power of Attorney. Reference is made to page II-6 of the Registration
Statement filed on August 18, 1999.
27 Financial Data Schedule.*
</TABLE>
- --------
+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
* Previously filed.
(b) Financial Statement Schedules.
Schedule II--Valuation and Qualifying Accounts.
All other schedules are omitted because they are not required, are not
applicable or the information is included in our financial statements or notes
thereto.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 7 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of San Diego, County of San Diego, State of California, on November 4,
1999.
By: /s/ Thomas A. Munro
----------------------------------
Thomas A. Munro
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 7 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer and November 4, 1999
____________________________________ Director
Massih Tayebi (Principal Executive
Officer)
* President and Director November 4, 1999
____________________________________
Masood K. Tayebi
/s/ Thomas A. Munro Chief Financial Officer November 4, 1999
____________________________________ (Principal Financial and
Thomas A. Munro Accounting Officer)
* Director November 4, 1999
____________________________________
Scott Anderson
* Director November 4, 1999
____________________________________
Bandel Carano
* Director November 4, 1999
____________________________________
</TABLE> Scot Jarvis
/s/ Thomas A. Munro
*By: __________________________
Thomas A. Munro
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement.*
3.1 Amended and Restated Certificate of Incorporation, as currently in
effect.*
3.2 Form of Restated Certificate of Incorporation, to be filed and become
effective prior to the closing of this offering.*
3.3 Form of Restated Certificate of Incorporation, to be filed and become
effective upon the closing of this offering.*
3.4 Bylaws, as currently in effect.*
3.5 Form of Bylaws, as amended to become effective upon the closing of
this offering.*
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5.
4.2 Specimen Stock Certificate.*
5.1 Opinion of Cooley Godward LLP.
10.1 1997 Stock Option Plan.*
10.2 Form of Stock Option Agreement pursuant to the 1997 Stock Option Plan
and related terms and conditions.*
10.3 1999 Equity Incentive Plan.*
10.4 Form of Stock Option Agreement pursuant to the 1999 Equity Incentive
Plan.*
10.5 1999 Employee Stock Purchase Plan and related offering documents.*
10.6 R&D Building Lease by and between the Company and Sorrento Tech
Associates as amended.*
10.7 Credit Agreement by and among the Company, various banks and Imperial
Bank dated as of September 17, 1999, as amended.
10.8 Second Amended and Restated Investor Rights Agreement by and among the
Company and certain stockholders of the Company dated as of September
17, 1999.*
10.9 Employment Offer Letter by and between the Company and Scott Fox dated
as of April 9, 1999.*
10.10 Form of Indemnity Agreement by and between the Company and certain
officers and directors of the Company.*
10.11 Amended Promissory Note from the Company to Masood K. Tayebi dated as
of August 2, 1999.*
10.12 Amended Promissory Note from the Company to Massih Tayebi dated as of
August 2, 1999.*
10.13 Amended Promissory Note from the Company to Sean Tayebi dated as of
August 2, 1999.*
10.14 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 28, 1997.*
10.15 Form of Subscription and Representation Agreement by and between the
Company and each of Scott Anderson and Scot Jarvis dated as of
February 28, 1997.*
10.16 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 1, 1998.*
10.17 Form of Bill of Sale and Assignment Agreement by and between the
Company and each of Massih Tayebi and Masood K. Tayebi dated as of
June 30, 1999.*
10.18 Assignment of Note by and among the Company, Masood K. Tayebi and
Massih Tayebi dated as of June 30, 1999.*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.19 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.20 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.21 Services Agreement by and between WFI de Mexico S. de R.L. de C.V. and
Ericsson Telecom, S.A. de C.V. dated as of August 4, 1999.+
10.22 Master Services Agreement by and between the Company and TeleCorp
Amended and Restated Communication, Inc. dated as of October 12, 1999.
10.23 Master Services Agreement by and between the Company and Nextel
Partners Operating Corp. dated as of January 18, 1999.+
10.24 Agreement by and between the Company and Siemens Aktiengesellschaft,
Berlin and Munchen, Federal Republic of Germany, represented by the
Business Unit Mobile Networks.+
10.25 Master Services Agreement by and between the Company and Triton PCS,
Operating Company, L.L.C. dated as of January 19, 1998, as amended.+
10.26 Microwave Relocation Services Agreement by and between Entel
Technologies, Inc. and Triton PCS Operating Company, L.L.C. dated as
of February 11, 1998.+
10.27 Site Development Services Agreement by and between Entel Technologies,
Inc. and Triton PCS, Inc. dated as of December 10, 1997.+
10.28 Sales Agreement for Products and Services by and between the Company
and Integrated Ventures, LLC dated as of April 19, 1999.+
10.29 Settlement Agreement and Mutual General Releasee by and between the
Company and Total Outsourcing, Inc dated as of June 30, 1999.*
10.30 Straight Note from Scott Fox and Kathleen W. Fox to the Company dated
as of July 8, 1999.*
10.31 Master Services Agreement by and between the Company and Metricom,
Inc. dated as of September 21, 1999. +
21.1 List of subsidiaries.*
23.1 Consent of KPMG LLP, Independent Public Accountants.*
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
23.3 Consent of M.R. Weiser LLP, Independent Public Accountants.*
24.1 Power of Attorney. Reference is made to page II-6 of the Registration
Statement filed on August 18, 1999.
27 Financial Data Schedule.*
</TABLE>
- --------
+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
* Previously filed.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
ATTORNEYS AT LAW Boulder, CO
303 546-4000
4365 Executive Drive Denver, CO
Suite 1100 303 606-4800
San Diego, CA
92121-2128 Kirkland, WA
Main 858 550-6000 425 893-7700
Fax 858 453-3555
Menlo Park, CA
650 843-5100
Palo Alto, CA
650 843-5000
www.cooley.com Reston, VA
703 262-8000
San Francisco, CA
October 18, 1999 415 693-2000
WIRELESS FACILITIES, INC.
9805 Scranton Road, Suite 100
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Wireless Facilities, Inc. (the "Company") of a Registration
Statement on Form S-1 (the "Registration Statement") with the Securities and
Exchange Commission, including a related prospectus to be filed with the
Commission pursuant to Rule 424(b) of Regulation C promulgated under the
Securities Act of 1933, as amended (the "Prospectus"), and the underwritten
public offering of up to 4,600,000 shares of the Company's Common Stock, par
value $.001, including 600,000 shares of Common Stock for which the underwriters
have been granted an over-allotment option (the "Shares").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related Prospectus, the Company's Restated
Certificate of Incorporation and Bylaws, and the originals or copies certified
to our satisfaction of such records, documents, certificates, memoranda and
other instruments as in our judgment are necessary or appropriate to enable us
to render the opinion expressed below.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and related Prospectus, will be validly issued, fully paid, and
nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
Prospectus included in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ LANCE W. BRIDGES
Lance W. Bridges
<PAGE>
EXHIBIT 10.7
CREDIT AGREEMENT
among
WIRELESS FACILITIES, INC.,
VARIOUS BANKS,
and
IMPERIAL BANK,
as Agent, Collateral Agent, and Documentation Agent
__________________________________
Dated as of August 18, 1999
__________________________________
<PAGE>
TABLE OF CONTENTS/1/
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION................................................... 1
1.1. Defined Terms................................................................................ 1
1.2. Principles of Construction................................................................... 14
SECTION 2. AMOUNT AND TERMS OF CREDIT................................................................... 15
2.1. The Revolving Credit Advances................................................................ 15
2.2. Minimum Amount of Each Borrowing............................................................. 16
2.3. Notice of Borrowing.......................................................................... 16
2.4. Disbursement of Funds........................................................................ 16
2.5. Notes........................................................................................ 17
2.6. Conversions and Continuations................................................................ 17
2.7. Pro Rata Borrowings.......................................................................... 18
2.8. Interest..................................................................................... 18
2.9. Interest Periods............................................................................. 19
2.10. Increased Costs, Illegality, etc............................................................. 19
2.11. Compensation................................................................................. 21
2.12. Extension of Loan Maturity Date.............................................................. 21
SECTION 3. FEES: PREPAYMENTS; COMMITMENT REDUCTIONS; REPAYMENTS; PAYMENTS............................... 22
3.1. Fees......................................................................................... 22
3.2. Voluntary Prepayments........................................................................ 22
3.3. Mandatory Prepayments........................................................................ 23
3.4 Principal Repayment.......................................................................... 24
3.5. Method and Place of Payment.................................................................. 24
3.6. Net Payments................................................................................. 24
SECTION 4. CONDITIONS PRECEDENT......................................................................... 25
4.1. Initial Credit Event......................................................................... 25
4.2. All Credit Events............................................................................ 26
SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS................................................... 27
5.1. Status....................................................................................... 27
</TABLE>
_______________
/1/ This Table of Contents is provided for convenience only and is not part of
the attached Credit Agreement.
<PAGE>
<TABLE>
<S> <C>
5.2. Corporate Power; Execution and Delivery; Enforceability...................................... 27
5.3. No Violation................................................................................. 27
5.4. Approvals.................................................................................... 28
5.5. Financial Statements; Financial Condition; Undisclosed Liabilities; etc...................... 28
5.6. Litigation................................................................................... 28
5.7. True and Complete Disclosure................................................................. 28
5.8. Use of Proceeds; Margin Regulations.......................................................... 29
5.9. Tax Returns and Payments..................................................................... 29
5.10. Compliance with ERISA........................................................................ 29
5.11. Capitalization............................................................................... 29
5.12. Subsidiaries; Indebtedness; Existing Liens; Insurance........................................ 30
5.13. Compliance with Statutes, etc................................................................ 30
5.14. Labor Relations.............................................................................. 30
5.15. Patents, Licenses, Franchises and Formulas................................................... 30
5.16. Year 2000 Problem............................................................................ 31
5.17. Investment Company Act....................................................................... 31
5.18. Public Utility Holding Company Act........................................................... 31
5.19. Subsidiaries................................................................................. 31
SECTION 6. AFFIRMATIVE COVENANTS........................................................................ 31
6.1. Information Covenants........................................................................ 31
6.2. Books, Records and Inspections............................................................... 32
6.3. Maintenance of Property, Insurance........................................................... 33
6.4. Corporate Franchises......................................................................... 33
6.5. Compliance with Statutes, etc................................................................ 33
6.6. ERISA........................................................................................ 33
6.7. End of Fiscal Years; Fiscal Quarters......................................................... 34
6.8. Performance of Obligations................................................................... 34
6.9. Use of Proceeds; Margin Regulations.......................................................... 34
6.10. Year 2000 Problems........................................................................... 34
6.11. Control...................................................................................... 34
6.12. Landlord's Consent........................................................................... 34
SECTION 7. NEGATIVE COVENANTS........................................................................... 34
7.1. Liens........................................................................................ 34
7.2. Consolidation, Merger, Sale of Assets, etc................................................... 36
7.3. Dividends.................................................................................... 38
7.4. Indebtedness................................................................................. 38
7.5. Advances, Investments and Loans.............................................................. 39
7.6. Transactions with Affiliates................................................................. 39
7.7 Capital Expenditures......................................................................... 39
7.8. Trading Ratio................................................................................ 39
</TABLE>
<PAGE>
<TABLE>
<S> <C>
7.9. Net Worth.................................................................................... 39
7.10. Profitability ............................................................................... 40
7.11. Maximum Debt to Net Worth Ratio.............................................................. 40
7.12. Working Capital.............................................................................. 40
7.13. Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, Bylaws and Certain Other Agreements; etc....................... 40
7.14. Business..................................................................................... 40
SECTION 8. EVENTS OF DEFAULT............................................................................ 40
8.1. Payments..................................................................................... 40
8.2. Representations, etc......................................................................... 40
8.3. Covenants.................................................................................... 41
8.4. Cross Default; Cross Acceleration............................................................ 41
8.5. Bankruptcy, etc.............................................................................. 41
8.6. ERISA........................................................................................ 41
8.7. Security Documents........................................................................... 42
8.8. Judgments.................................................................................... 42
SECTION 9. THE AGENT AND DOCUMENTATION AGENT............................................................ 42
9.1. Appointment.................................................................................. 42
9.2. Nature of Duties............................................................................. 43
9.3. Lack of Reliance on the Agent................................................................ 43
9.4. Certain Rights of the Agent.................................................................. 43
9.5. Reliance..................................................................................... 44
9.6. Indemnification.............................................................................. 44
9.7. The Agent in its Individual Capacity......................................................... 44
9.8. Holders...................................................................................... 44
9.9. Resignation by the Agent..................................................................... 45
9.10. Documentation Agent.......................................................................... 45
SECTION 10. MISCELLANEOUS................................................................................ 45
10.1. Payment of Expenses, Indemnification, etc.................................................... 45
10.2. Right of Set-off............................................................................. 46
10.3. Notices...................................................................................... 47
10.4. Successors and Assigns....................................................................... 47
10.5. Assignments, Participations, Etc............................................................. 48
10.6. No Waiver; Remedies Cumulative............................................................... 49
10.7. Payments Pro Rata............................................................................ 49
10.8. Calculations; Computations................................................................... 50
10.9. Governing Law; Reference; Arbitration; Submission to Jurisdiction; Venue; Waiver............. 50
10.10. Obligation to Make Payments in Dollars....................................................... 53
10.11. Counterparts................................................................................. 53
</TABLE>
<PAGE>
<TABLE>
<S> <C>
10.12. Amendment or Waiver.......................................................................... 53
10.13. Severability................................................................................. 54
10.14. Survival..................................................................................... 54
10.15. Domicile of Loans............................................................................ 54
10.16. Effectiveness................................................................................ 54
</TABLE>
SCHEDULES
SCHEDULE 1 Commitments
SCHEDULE 2 Applicable Lending Offices
SCHEDULE 3 Security Documents
SCHEDULE 4 Investments
SCHEDULE 5 Securities Convertible Into or Exchangeable for Capital Stock
SCHEDULE 6 Indebtedness
SCHEDULE 7 Liens
SCHEDULE 8 Insurance
SCHEDULE 9 Leased Real Property Addresses
SCHEDULE 10 Subsidiaries
EXHIBITS
EXHIBIT A Notice of Borrowing
EXHIBIT B Note
EXHIBIT C Notice of Conversion
EXHIBIT D Notice of Continuation
EXHIBIT E Extension Request
EXHIBIT F Officers' Certificate of the Borrower
EXHIBIT G Officer's Certificate of Guarantor
EXHIBIT H Landlord's Consent
EXHIBIT I Compliance Certificate
EXHIBIT J Assignment and Acceptance
EXHIBIT K Domestic Subsidiary Guarantee
EXHIBIT L Foreign Subsidiary Guarantee
<PAGE>
CREDIT AGREEMENT, dated as of August 18, 1999, among WIRELESS
FACILITIES, INC. (the "Borrower"), a corporation organized and existing under
--------
the laws of Delaware, the financial institutions from time to time listed in
Schedule 1 (together with permitted assignees, each a "Bank" and, collectively,
----
the "Banks"), IMPERIAL BANK, acting in the manner and to the extent described in
-----
Section 9 (in such capacity, together with any successor appointed hereunder,
the "Agent"), IMPERIAL BANK, acting as collateral agent for the Banks under the
-----
Security Documents (in such capacity, together with any successor appointed
hereunder, the "Collateral Agent") and IMPERIAL BANK, acting as documentation
----------------
agent for the Banks hereunder (the "Documentation Agent").
-------------------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.
------------------------------------------
1.1. Defined Terms. As used in this Agreement, the following terms
-------------
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Accounts" shall mean any right to payment for goods sold, leased or
rented, or to be sold, leased or rented, or for services rendered or to be
rendered no matter how evidenced, including, without limitation, acceptances,
accounts receivable, contract rights, chattel paper, drafts, general
intangibles, instruments, notes, purchase orders and other forms of obligations
and receivables.
"Additional Taxes" shall have the meaning provided in Section 3.6.
"Adjusted LIBOR" shall mean, with respect to each Interest Period for
a LIBOR Loan, the rate per annum (rounded upward if necessary to the nearest
one-sixteenth of one percent) equal to (i) the LIBOR for such Interest Period
divided by (ii) 1.00 minus the Reserve Requirement Rate (expressed as a decimal
fraction) for such Interest Period.
"Affiliate" shall mean, with respect to any Person, any other Person
(other than an individual) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
<PAGE>
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 9.9.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Lending Office" shall mean, with respect to each Bank, (i)
such Bank's Base Rate Lending Office in the case of a Base Rate Loan and (ii)
such Bank's LIBOR Lending Office in the case of a LIBOR Loan as set forth on
Schedule 2.
"Asset Disposition" shall have the meaning set forth in Section
3.3(b)(i).
"Assignee" shall have the meaning set forth in Section 10.5(a).
"Assignment and Acceptance" shall have the meaning set forth in
Section 10.5(a).
"Authorized Representative" shall mean Massih Tayebi, Masood Tayebi,
Thomas Munro, or any other officer of the Borrower designated to serve as
"Authorized Representative" in accordance with Section 1.2(n).
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 8.5.
"Base Rate" shall mean, as of any date of determination, the rate
determined by the Agent to be the Prime Rate on that date plus 0.25 percent per
annum.
"Base Rate Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "Base Rate Lending Office" opposite its
name on Schedule 2 or such other office, Subsidiary or Affiliate of such Bank as
such Bank may from time to time specify as such to the Borrower and the Agent.
"Base Rate Loan" shall mean any Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrowing" shall mean the borrowing of Loans of one Type (and, in the
case of LIBOR Loans, at one interest rate) on a given date (or the conversion of
a Loan or Loans of a Bank or Banks on a given date).
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in Inglewood, California a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, LIBOR Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the London interbank Eurodollar market.
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<PAGE>
"Capital Lease" shall mean a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Stock" shall mean common stock, preferred stock, warrants and
all other rights to purchase common stock or preferred stock of the Borrower.
"CCP" shall have the meaning provided in Section 10.9(b).
"Claim Date" shall have the meaning provided in Section 10.9(b).
"Closing Date" shall mean the later of (i) the first date on which all
of the conditions precedent specified in Section 4.1 have been satisfied or
waived by the Required Banks and (ii) the date of the first Borrowing.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real, personal,
tangible, intangible, existing or hereafter acquired) of the Borrower that is
pledged to, or over which a security interest is granted in favor of, the
Collateral Agent under the Security Documents to secure the Obligations.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Collateral
Agent appointed pursuant to Section 9.9.
"Commitment" shall mean for each Bank, at any time, the amount set
forth opposite such Bank's name in Schedule 1 under the heading "Commitment" as
such amount may from time to time be reduced pursuant to Sections 3.3 or 10.5.
"Commitment Expiration Date" shall have the meaning provided in
Section 2.12(a).
"Commitment Fee" shall have the meaning provided in Section 3.1.
"Compliance Certificate" shall have the meaning provided in Section
6.1(e).
"Commitment Obligation" shall mean for each Bank the obligation
hereunder of such Bank to make Loans to the Borrower in an aggregate principal
amount at any one time outstanding not to exceed the Commitment for such Bank.
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<PAGE>
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the holder of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, each Note, each Notice
of Borrowing, each Notice of Continuation, each Notice of Conversion, each
Notice of Extension, each Compliance Certificate and each Security Document.
"Credit Event" shall mean the making of any Loan.
"Current Maturities of Funded Debt" shall mean at any time and with
respect to any item of Funded Debt, the portion of such Funded Debt outstanding
at such time which by the terms of such Funded Debt or the terms of any
instrument or agreement relating thereto is due on demand or within one year
from the time of determination (whether by sinking fund, other required
prepayment or final payment at maturity) and is not directly or indirectly
renewable, extendible or refundable at the option of the obligor under an
agreement or firm commitment in effect at such time to a date one year or more
from such time.
"Debt Security" shall mean any Security of the Borrower other than
Capital Stock.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
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<PAGE>
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Lending Office" for any Bank shall mean that Office
specified opposite its name on Schedule 2.
"EBIT" shall mean, for any period, the Net Income of the Borrower for
such period, before interest expense and provision for taxes and without giving
effect to any extraordinary gains and gains from sales of assets (other than
sales of Inventory in the ordinary course of business).
"EBITDA" shall mean, for any period, the EBIT of the Borrower for such
period adjusted by (i) adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at such EBIT for
such period and (ii) subtracting therefrom the amount of all non-cash gains that
were added in arriving at such EBIT for such period.
"EBITDAR" shall mean, for any period, the EBITDA of the Borrower for
such period adjusted by adding thereto the amount of Lease Rentals for such
period.
"Effective Date" shall have the meaning provided in Section 10.16.
"Equipment" shall mean, respect to a Person, all things other than
Inventory that are movable and which are used or bought for use primarily in
such Person's business.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any of its Subsidiaries would be
deemed to be a "single employer" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
"Event of Default" shall have the meaning provided in Section 8.
"Extension Request" shall mean the meaning provided in Section
2.12(a).
"Federal Funds Rate" shall mean, on any day, the rate per annum
(rounded upward if necessary to the nearest one-hundredth of one percent) equal
to the weighted average of the rate on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no
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<PAGE>
such rate is published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Agent on such day on
such transactions as reasonably determined by the Agent. Each change in the
interest rate on a Base Rate Loan which results from a change in the Federal
Funds Rate shall become effective on the day on which the change in the Federal
Funds Rate becomes effective.
"Financial Covenants" shall mean the covenants provided in Sections
7.8 to 7.12, inclusive.
"Financial Statements" shall have the meaning provided in Section
4.1(g).
"Fiscal Quarter" shall mean a fiscal quarter ended on the last day of
March, June, September, or December.
"Fiscal Year" shall mean a fiscal year ended on December 31.
"Funded Debt" shall mean all Indebtedness of the Borrower (including,
without limitation, subordinated indebtedness) which by its terms or by the
terms of any instrument or agreement relating thereto matures, or which is
otherwise payable or unpaid, one year or more from, or is directly or indirectly
renewable or extendible at the option of the Borrower in respect thereof to a
date one year or more (including, without limitation, an option of the Borrower
under a revolving credit or similar agreement obligating the lender or lenders
to extend credit over a period of one year or more) from, the date of the
creation thereof, provided that Funded Debt shall include, as at any date of
determination, Current Maturities of Funded Debt.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States.
"Governmental Regulation" shall mean any (i) United States, state or
foreign law, rule or regulation (including, without limitation, Regulation D);
and (ii) interpretation, application, directive or request applying to a class
of lenders, including any Bank, of or under any United States, state or foreign
law, rule or regulation (whether or not having the force of law) by any court or
by any governmental, central banking, monetary or taxing authority charged with
the interpretation or administration of such law, rule or regulation.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money, (ii) the deferred purchase price of property or
services (other than accrued expenses and current trade accounts payable
incurred in the ordinary course of business) which in accordance with GAAP would
be shown on the liability side of the balance sheet of such Person, (iii) the
face amount of all letters of credit issued for the account of such Person and
all drafts drawn thereunder, (iv) all obligations under conditional sale or
other title retention agreements relating to property purchased by such Person,
(v) all liabilities secured by any Lien on any property owned by such Person,
whether or not such liabilities have been assumed by such Person, (vi) the
aggregate amount required to be capitalized under leases under which such Person
is the lessee,
-6-
<PAGE>
(vii) all indebtedness, obligations or other liabilities of such Person in
respect of interest rate and currency protection agreements (e.g., swaps, caps
and collars), net of indebtedness, obligations or other liabilities owed to such
Person by its counterparties in respect of such agreements (provided such net
indebtedness, obligations and liabilities are greater than zero) and (viii) all
Contingent Obligations of such Person in respect of any indebtedness,
obligations or liabilities of any other Person of the type referred to in
clauses (i) through (vii) of this definition. For purposes of calculating
indebtedness, obligations and liabilities under interest rate and currency
protection agreements, such calculation shall be made in accordance with market
convention at the time of such calculation or, should an Event of Default have
occurred and be continuing, in accordance with the definition of "Market
Quotation" set forth in the Interest Rate and Currency Exchange Agreement of the
International Swap Dealers Association, Inc. as in effect on the date hereof.
"Insurance Proceeds" shall have the meaning set forth in Section
3.3(b)(i).
"Interest Determination Date" shall mean with respect to any LIBOR
Loan the second Business Day prior to the commencement of any Interest Period
relating to such LIBOR Loan.
"Interest Expense" shall mean with respect to any period, the sum
(without duplication) of the following (in each case, eliminating all items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Borrower in accordance with GAAP): (i) all interest
in respect of Indebtedness (including subordinated Indebtedness) of the Borrower
(including imputed interest on Capital Leases) deducted in determining Net
Income for such period, together with all interest capitalized or deferred
during such period and not deducted in determining Net Income for such period,
and (ii) all debt discount and expense amortized or required to be amortized in
the determination of Net Income for such period.
"Interest Period" shall have the meaning provided in Section 2.9.
"Inventory" shall mean, with respect to a Person, all of such Person's
goods, merchandise and other personal property which are held for sale or lease,
including those held for display or demonstration or out on lease or consignment
or to be furnished under a contract of service or are raw materials, work in
process or materials used or consumed in such Person's business, and shall
include all property rights, patents, plans, drawings, diagrams, schematics,
assembly and display materials relating thereto.
"Lease Rentals" shall mean, with respect to any period, the sum of the
rental and other obligations required to be paid during such period by the
Borrower as lessee under all leases of real or personal property (other than
Capital Leases), excluding any amount required to be paid by the Borrower
(whether or not therein designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges, provided that, if at the date of determination, any such rental or
other obligations (or portion thereof) are contingent or not otherwise
definitely determinable by the terms of the
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<PAGE>
related lease, the amount of such obligations (or such portion thereof) (i)
shall be assumed to be equal to the pro rated amount of such obligations for the
period of 12 consecutive calendar months immediately preceding the date of
determination or (ii) if the related lease was not in effect during such
preceding 12-month period, shall be the amount estimated by a senior financial
officer of the Borrower on a reasonable basis and in good faith.
"LIBOR" shall mean, with respect to each Interest Period, the rate
equal to:
(i) the arithmetic mean (rounded upward if necessary to the nearest
one-sixteenth of one percent) of the offered rates per annum for deposits
in Dollars for a period equal to such Interest Period which appears at
11:00 a.m., London time, on the Reuters Screen LIBOR Page on the Interest
Determination Date for such Interest Period, in each case if at least four
such offered rates appear on such page; or
(ii) if clause (i) is inapplicable, the offered rate per annum for
deposits in Dollars for a period equal to such Interest Period which
appears at 11:00 a.m., London time, on the Telerate Monitor on Telerate
Screen 3750 (or such other screen as may replace screen 3750 on the
Telerate Monitor for the purpose of displaying the London interbank offered
rates of major banks) on the Interest Determination Date for such Interest
Period; or
(iii) if clauses (i) and (ii) are inapplicable, the arithmetic mean
(rounded upward if necessary to the nearest one-sixteenth of one percent)
of the interest rates per annum offered by at least three prime rate banks
selected by the Agent at approximately 11:00 a.m., London time, on the
Interest Determination Date for such Interest Period for deposits in
Dollars to prime banks in the London interbank market, in each case for a
period equal to such Interest Period in an amount equal to the amount for
which LIBOR is being determined.
"LIBOR Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "LIBOR Lending Office" opposite its name on
Schedule 2 or such other office, Subsidiary or Affiliate of such Bank as such
Bank may from time to time specify as such to the Borrower and the Agent.
"LIBOR Loan" shall mean any Loan designated or deemed designated as
such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" and "Loans" shall have the meanings given thereto in Section
2.1.
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<PAGE>
"Loan Maturity Date" shall mean August 17, 2000.
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean an event or occurrence (i) the
effect of which could reasonably be expected to have a material adverse effect
on or change in the business, operations, property, assets, condition (financial
or otherwise) or prospects of the Borrower, (ii) which adversely affects the
ability of the Borrower to perform its material obligations under the
Transaction Documents to which it is a party, (iii) which materially adversely
affects the enforceability of any Transaction Document, (iv) which materially
adversely affects the rights and remedies of the Agent, the Collateral Agent or
any Bank under the Transaction Documents or (v) which materially adversely
affects the Collateral.
"Net Income" shall mean, for any period, the amount set forth on the
consolidated statement of operations of the Borrower for such period opposite
the line item entitled "Net income (loss)."
"Net Proceeds of Capital Stock" shall mean, for any period, proceeds
(net of all customary costs and out-of-pocket expenses in connection therewith,
including, without limitation, customary placement, underwriting and brokerage
fees and expenses) received by the Borrower during such period, from the sale of
all Capital Stock.
"Net Proceeds of Debt Issuances" shall mean, for any period, proceeds
(net of all customary costs and out-of-pocket expenses in connection therewith,
including, without limitation, customary placement, underwriting and brokerage
fees and expenses) received by the Borrower during such period from the issuance
of Debt Securities.
"Net Worth" shall mean, at any time,
(a) the total assets of the Borrower which would be shown as
assets on a consolidated balance sheet of the Borrower as of such time prepared
in accordance with GAAP, minus
(b) the total liabilities of the Borrower which would be shown as
liabilities on a consolidated balance sheet of the Borrower as of such time
prepared in accordance with GAAP, minus
(c) the net book value of all assets, after deducting any
reserves applicable thereto, which would be treated as intangible under GAAP,
including, without limitation, goodwill, trademarks, trade names, service marks,
brand names, copyrights, patents, unamortized debt discount and expense, and
organizational expenses.
"Note" shall have the meaning provided in Section 2.5.
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<PAGE>
"Notice of Borrowing" shall have the meaning provided in Section 2.3.
"Notice of Continuation" shall have the meaning provided in Section
2.6(c).
"Notice of Conversion" shall have the meaning provided in Section
2.6(c).
"Notice Office" shall mean the office of the Agent located at 9920
South La Cienega Boulevard, 14th Floor, Inglewood, CA 90301, Attention: F. Glen
Harvey, telecopier number (310) 417-5997, with a copy to Imperial Bank, 701 B
Street, Suite 600, San Diego, CA 92101, Attention: Michael Berrier, telecopier
number (619) 234-2234, or such other office or offices as the Agent may
hereafter designate in writing as such to the other parties hereto.
"Objecting Bank" shall have the meaning provided in Section 2.12(a).
"Obligations" shall mean all amounts owing to the Agent, the
Collateral Agent or any Bank pursuant to the terms of this Agreement or any
other Transaction Document.
"Originator" shall have the meaning provided in Section 10.5(d).
"Participant" shall have the meaning provided in Section 10.5(d).
"Payment Account" shall mean such account as the Agent may hereafter
from time to time designate in writing as such to the Borrower and the Banks.
"Payment Office" shall mean the office of the Agent located at 701 B
Street, Suite 600, San Diego, CA 92101, or such other office as the Agent may
hereafter designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA or any successor thereto.
"Permitted Indebtedness" shall have the meaning provided in Section
5.12(a).
"Permitted Investments" shall mean:
(i) investments listed in Schedule 4;
(ii) (a) securities issued directly or unconditionally guaranteed or
insured by the United States or any agency or instrumentality thereof (provided
the full faith and credit of the United States is pledged in support thereof)
having maturities within six months from the date of acquisition thereof; (b)
commercial paper issued by any Person incorporated in the United States, which
commercial paper is rated at least A-1 (or equivalent) by Standard & Poor's
Ratings Service or at least P-1 (or equivalent) by Moody's Investors Service,
Inc., in each case having maturities within six months from the date of
acquisition thereof; and (c) time deposits and certificates of deposit of any
commercial bank incorporated in the United States having
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<PAGE>
capital and surplus in excess of $1,000,000,000 and having maturing no more than
six months from the date of acquisition;
(iii) extensions of credit in the nature of Accounts arising from the
sale or lease of goods or services in the ordinary course of the Borrower's or
its Subsidiaries' business;
(iv) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business; and
(v) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of the Borrower's or its Subsidiaries'
business.
"Permitted Liens" shall have the meaning provided in Section 7.1
"Person" shall mean any individual, partnership, limited liability
company, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer plan or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of), or at any time during the
five calendar years preceding the date of this Agreement was maintained or
contributed to by (or to which there was an obligation to contribute of), the
Borrower, any Subsidiary thereof or any ERISA Affiliate.
"Prime Rate" shall mean the rate which Imperial Bank announces from
time to time in Inglewood, California as its prime lending rate, the Prime Rate
to change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Imperial Bank may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Purchase Money Indebtedness" shall mean Indebtedness (i) incurred (or
assumed) by the Borrower solely to acquire Equipment for use in the Borrower's
business, (ii) the amount of which does not exceed the lesser of the cost or
fair market value of the Equipment that is acquired with the proceeds of such
Indebtedness and (iii) for which the lender thereof has recourse only to the
Equipment that is acquired with the proceeds of such Indebtedness and the
proceeds of such Equipment.
"Purchase Money Liens" shall mean Liens granted by the Borrower (i)
securing Purchase Money Indebtedness, (ii) that encumber only the Equipment that
is acquired with the proceeds of Purchase Money Indebtedness and the proceeds of
such Equipment and (iii) that are created contemporaneously with the purchase of
Equipment that is acquired with the proceeds of Purchase Money Indebtedness.
-11-
<PAGE>
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulatory Change" means, with respect to any Bank, any change on or
after the date of this Agreement in any Governmental Regulation, including,
without limitation, the introduction of a new Governmental Regulation or the
rescission of an existing Governmental Regulation.
"Replacement Notice" shall have the meaning provided in Section
3.3(b)(i).
"Reportable Event" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean, at any time, Banks holding more than 66-
2/3% of the then aggregate unpaid principal amount of the Loans or, if no such
principal amount is then outstanding, Banks holding more than 66-2/3% of the
Total Commitment.
"Reserve Requirement Rate" shall mean, for any Interest Period, the
aggregate of the rates, effective as of the Interest Determination Date for such
Interest Period, at which:
(i) reserves (including any marginal, emergency, supplemental,
special or other reserves) are required to be maintained during such
Interest Period under Regulation D against "Eurocurrency liabilities" (as
such term is used in Regulation D) by member banks of the Federal Reserve
System; and
(ii) any additional reserves are required to be maintained by any Bank
by reason of any Regulatory Change against (x) any category of liabilities
which includes deposits by reference to which LIBOR is to be determined or
(y) any category of any of credit or other assets which include LIBOR
Loans.
"Reuters Screen LIBOR Page" shall mean the display designated as page
LIBOR on the Reuters Monitor Money Rates Service or such other page as may
replace the LIBOR page on that service for the purpose of displaying the London
interbank Eurodollar offered rates of major banks.
"Sale Proceeds" shall have the meaning provided in Section 3.3(b)(i).
"Security" shall have the meaning set forth in section 2(1) of the
Securities Act of 1933, as amended.
"Security Document" shall mean each agreement, instrument,
certificate, financing statement or other document described in Schedule 3
hereto.
-12-
<PAGE>
"Subordinated Debt" shall mean any Indebtedness of Borrower which is
subordinated in form and substance acceptable to the Banks, to Indebtedness
under this Agreement or the Notes.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Superior Court" shall have the meaning provided in Section 10.9(b).
"Taxes" shall have the meaning provided in Section 3.6.
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Banks.
"Transaction Documents" shall mean the Credit Documents.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a LIBOR Loan.
----
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year, determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan, exceeds
the fair market value of the assets allocable thereto, determined in accordance
with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of
America.
"Unutilized Commitment" shall mean, for any Bank, at any time, the
Commitment of such Bank at such time less the aggregate principal amount of all
Loans made by such Bank and then outstanding.
"Wholly Owned Subsidiary" shall mean a partnership, limited liability
company, joint venture, firm, corporation, association, trust or other
enterprise whose ownership and/or management and control is entirely held by
another Person.
-13-
<PAGE>
"Working Capital" shall mean, as to the Borrower as at any date, (i)
the consolidated current assets of the Borrower and its Subsidiaries as of such
date less the current portion of all consolidated liabilities owed to the
----
Borrower by any Affiliate less (ii) the consolidated current liabilities of the
----
Borrower and its Subsidiaries as of such date.
"Year 2000 Compliant" shall mean, with respect to any Person, that all
software, hardware, firmware, equipment, goods or systems utilized by or
material to the business operations or financial condition of such Person and
its Subsidiaries, will properly perform date sensitive functions before, during
and after the year 2000.
"Year 2000 Problem" shall mean the possibility that any computer
applications or equipment used by the Borrower may be unable to recognize and
properly perform date sensitive functions involving certain dates prior to and
any dates on or after December 31, 1999.
1.2. Principles of Construction.
--------------------------
(a) All references to sections, schedules and exhibits are to
sections, schedules and exhibits in or to this Agreement unless otherwise
specified.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(c) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP in effect from time to time; provided,
--------
however, that all accounting terms used in the Financial Covenants (and all
- -------
defined terms used in the Financial Covenants) shall have the meaning given to
such terms (and defined terms) under GAAP as in effect on the date hereof
applied on a basis consistent with those used in preparing the audited financial
statements delivered to the Agent pursuant to Sections 4.1(g) and 6.1(b). In
the event of any change after the date hereof in GAAP, and if such change would
result in the inability to determine compliance with the Financial Covenants
based upon the Borrower's regularly prepared financial statements by reason of
the preceding sentence, then the parties hereto agree to endeavor, in good
faith, to agree upon an amendment to this Agreement that would adjust the
Financial Covenants in a manner that would not affect the substance thereof, but
would allow compliance therewith to be determined in accordance with the
Borrower's financial statements at that time. It is understood that the
agreement set forth in the preceding sentence is intended to permit amendments
to facilitate the parties' ability to determine compliance with the Financial
Covenants and the Banks have no obligation, express or implied, to agree to any
amendment that would modify the obligations of the Borrower or adversely affect
the rights of the Banks hereunder.
(d) References in the Transaction Documents to any of the
"Borrower", the "Agent", the "Collateral Agent" or the "Banks" shall be
construed so as to include their respective successors and permitted assigns.
-14-
<PAGE>
(e) References in the Transaction Documents to a "law" shall be
construed to mean any law, including common or customary law and any
constitution, decree, judgment, legislation, order, ordinance, regulation, rule,
statute, treaty or other legislative or regulatory measure, in each case of any
jurisdiction.
(f) References in the Transaction Documents to a statute shall be
construed as a reference to such statute as amended or reenacted from time to
time.
(g) A time of day is, unless otherwise stated, a reference to Los
Angeles time.
(h) Unless otherwise specified, any reference in the Transaction
Documents to another agreement shall be construed as a reference to that other
agreement as the same may have been, or may from time to time be, amended or
supplemented.
(i) The headings of the several sections and subsections of the
Transaction Documents are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of any Transaction Document.
(j) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including", the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including".
(k) Unless otherwise expressly provided, any reference to any action
of the Agent, the Collateral Agent or any Bank by way of consent, approval or
waiver shall be deemed modified by the phrase "in its/their reasonable
discretion".
(l) This Agreement and the other Transaction Documents are the result
of negotiations among and have been reviewed by counsel to the Agent, the
Collateral Agent, the Banks and the Borrower, and are the products of all
parties. Accordingly, they shall not be construed against the Banks or the
Agent merely because of the Agent's or the Bank's involvement in their
preparation.
(m) All words importing any gender shall be deemed to include the
other genders.
(n) If the President of the Borrower delivers a written notice
designating one or more persons to serve as Authorized Representatives, such
designation shall become effective, and such persons shall be treated as
Authorized Representatives under the Transaction Documents, at the commencement
of business on the fifth Business Day following the day on which such notice is
received by the Agent. The Agent, the Collateral Agent and the Banks shall be
entitled to rely, without investigation, on any action taken under the
Transaction Documents by a person who, at the time such action is taken, is an
Authorized Representative.
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<PAGE>
SECTION 2. AMOUNT AND TERMS OF CREDIT.
--------------------------
2.1. The Revolving Credit Advances. Subject to and upon the terms
-----------------------------
and conditions set forth herein, each Bank severally agrees, at any time and
from time to time prior to the Loan Maturity Date and the Commitment Expiration
Date for such Bank, to make revolving credit advances (any such revolving credit
advances made by any Bank a "Loan" and Loans made by any Bank or by all the
Banks, as the context requires, the "Loans") to the Borrower, which Loans (a)
-----
shall, at the option of the Borrower, be Base Rate Loans or LIBOR Loans,
provided that, except as otherwise specifically provided in Section 2.10(b), all
Loans comprising the same Borrowing shall at all times be of the same Type and
(b) may be prepaid and reborrowed in accordance with the provisions hereof;
provided, however, that the aggregate principal amount of Loans outstanding (i)
- -------- -------
from any Bank shall at no time exceed the Commitment of such Bank at such time
and (ii) from all Banks shall at no time exceed the Total Commitment. More than
one Borrowing may occur on the same date.
2.2. Minimum Amount of Each Borrowing. The aggregate principal
--------------------------------
amount of each Borrowing of Base Rate Loans hereunder shall be not less than
$100,000 and integral multiples of $50,000 in excess thereof. The aggregate
principal amount of each Borrowing of LIBOR Loans hereunder shall be not less
than $1,000,000 and integral multiples of $100,000 in excess thereof.
2.3. Notice of Borrowing. Whenever the Borrower desires to make a
-------------------
Borrowing of Loans hereunder, it shall give the Agent at its Notice Office prior
written notice by no later than 9:00 a.m., (a) in the case of a Base Rate Loan,
on the date such Loan is to be made and (b) in the case of a LIBOR Loan, on the
third Business Day prior to the date such Loan is to be made. Each notice
requesting a Borrowing (each a "Notice of Borrowing") shall be signed by an
-------------------
Authorized Representative and shall be in the form of Exhibit A, appropriately
completed to specify the aggregate principal amount of the Loans to be made
pursuant to such Borrowing, the date of such Borrowing (which shall be a
Business Day), whether the Loans being made pursuant to such Borrowing are to be
maintained initially as Base Rate Loans or LIBOR Loans and, if LIBOR Loans, the
initial Interest Period to be applicable thereto. A Notice of Borrowing shall
be deemed to have been given on a certain day only if given before 9:00 a.m. on
such day. The Agent shall promptly give each Bank notice of such proposed
Borrowing, of such Bank's proportionate share thereof and of the other matters
required to be specified in the Notice of Borrowing.
2.4. Disbursement of Funds. No later than 1:00 p.m. on the date
---------------------
specified in each Notice of Borrowing, each Bank will make available, through
such Bank's Applicable Lending Office, its pro rata portion of such Borrowing
--- ----
requested to be made on such date in Dollars and in immediately available funds
at the Payment Account of the Agent, and the Agent will make available to the
Borrower at its Payment Office the aggregate of the amounts so made available by
the Banks. Unless the Agent has been notified by any Bank on or prior to a date
of Borrowing that such Bank does not intend to make available to the Agent such
Bank's portion of any Borrowing to be made on such date, the Agent may assume
that such Bank has made such
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<PAGE>
amount available to the Agent on such date of Borrowing and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Agent
by such Bank the Agent shall be entitled to recover such corresponding amount
from such Bank on demand. If such Bank does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to the
Agent. The Agent shall also be entitled to recover on demand from such Bank or
the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
to the Borrower until the date such corresponding amount is recovered by the
Agent, at a rate per annum equal to, (a) if recovered from such Bank, the cost
to the Agent of acquiring overnight Federal funds and (b) if recovered from the
Borrower, the then applicable rate for Base Rate Loans or LIBOR Loans, as the
case may be. Nothing in this Section 2.4 shall be deemed to relieve any Bank
from its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Bank as a result of any failure by such Bank to
make Loans hereunder.
2.5. Notes. The Borrower's obligation to pay the principal of, and
-----
interest on, all the Loans made by each Bank shall be evidenced by a promissory
note duly executed and delivered to such Bank by the Borrower substantially in
the form of Exhibit B with blanks appropriately completed in conformity herewith
(each a "Note" and, collectively, the "Notes"). The Note issued to each Bank
---- -----
shall (a) be payable to the order of such Bank and be dated the Closing Date,
(b) be in a stated principal amount equal to the Commitment of such Bank and be
payable in the principal amount of the Loans evidenced thereby, (c) mature, with
respect to each Loan evidenced thereby and subject to Section 2.12(b), on the
Loan Maturity Date, (d) bear interest as provided in the appropriate clause of
Section 2.8 in respect of the Base Rate Loans and LIBOR Loans, as the case may
be, evidenced thereby and (e) be entitled to the benefits of the Transaction
Documents. Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will, prior to any transfer
of any of its Note, endorse on the reverse side thereof the outstanding
principal amount of the Loans evidenced thereby. Failure to make any such
notation shall not affect the Borrower's obligations in respect of such Loans.
2.6. Conversions and Continuations.
-----------------------------
(a) The Borrower shall have the option to convert on any Business Day
all or a portion of the outstanding principal amount of the Loans made pursuant
to one or more Borrowings of one or more Types of Loan into a Borrowing of
another Type of Loan, provided that (i) except as otherwise provided in Section
-------- ----
2.10(b), LIBOR Loans may be converted into Base Rate Loans only on the last day
of the Interest Period applicable to the LIBOR Loans being converted and no such
partial conversion of LIBOR Loans shall reduce the outstanding principal amount
of LIBOR Loans made pursuant to a single Borrowing to less than $1,000,000, (ii)
Base Rate Loans may only be converted into LIBOR Loans if no Default or Event of
Default is in existence on the date of the conversion, (iii) Base Rate Loans may
only be converted into LIBOR Loans in a minimum amount of $1,000,000 and
integral multiples of $100,000 in excess thereof
-17-
<PAGE>
and (iv) no conversion pursuant to this Section 2.6 shall result in a greater
number of Borrowings than is permitted under Section 2.1.
(b) The Borrower shall have the option to continue all or a portion
(which portion shall not be less than the minimum aggregate principal amount or
integral multiple in excess thereof specified in Section 2.2) of the outstanding
principal amount of LIBOR Loans made pursuant to one or more Borrowings as LIBOR
Loans after the last day of the then current Interest Period, provided that no
-------- ----
Default or Event of Default exists on the date of continuation.
(c) Each such conversion shall be effected by the Borrower by giving
the Agent at its Notice Office prior to 9:00 a.m. at least three Business Days'
prior notice in the form of Exhibit C (each a "Notice of Conversion") signed by
--------------------
an Authorized Representative specifying the Loans to be so converted and, if
Base Rate Loans are to be converted into LIBOR Loans, the initial Interest
Period to be applicable thereto. Each such continuation shall be effected by
the Borrower by giving the Agent at its Notice Office prior to 9:00 a.m. at
least three Business Days' prior notice in the form of Exhibit D (each a "Notice
------
of Continuation") signed by an Authorized Representative specifying the LIBOR
- ---------------
Loans (or portions) to be so continued and the subsequent Interest Period
applicable thereto. The Agent shall promptly give each Bank notice of any such
proposed conversion or continuation affecting any of its Loans.
2.7. Pro Rata Borrowings. All Borrowings of Loans under this
-------------------
Agreement shall be incurred from the Banks pro rata on the basis of their
--- ----
Commitments. It is understood that no Bank shall be responsible for any default
by any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder
regardless of the failure of any other Bank to make its Loans hereunder.
2.8. Interest.
--------
(a) Subject to Section 2.8(c), the Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the maturity thereof
(whether by acceleration or otherwise) at a rate per annum which shall be the
Base Rate in effect from time to time.
(b) Subject to Section 2.8(c), the Borrower agrees to pay interest in
respect of the unpaid principal amount of each LIBOR Loan from the date the
proceeds thereof are made available to the Borrower until the maturity thereof
(whether by acceleration or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be the sum of the Adjusted LIBOR for
such Interest Period and 2.25 % (225 basis points).
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable by the
Borrower hereunder and shall bear interest at a rate per annum equal to 5% per
annum in excess of the Base Rate in effect from time to time. During the
continuance of an Event of Default (other than an Event of Default arising from
the failure of the Borrower to pay the principal of, or interest on, any Loan or
any other amount when due), each Loan and other amount payable by the Borrower
hereunder shall
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<PAGE>
bear interest at a rate per annum equal to 5% per annum in excess of the
interest rate in effect therefor immediately prior to the occurrence of such
Event of Default.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, monthly in arrears on the last Business Day of
each calendar month, (ii) in respect of each LIBOR Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of one month, on each date occurring at one-month intervals after the
first day of such Interest Period and (iii) in respect of each Loan, on any
prepayment (on the amount prepaid), on any scheduled payment, at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) On each Interest Determination Date, the Agent shall determine
the interest rate for the LIBOR Loans for which such determination is being made
and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
2.9. Interest Periods. At the time it gives any Notice of Borrowing,
----------------
Notice of Conversion or Notice of Continuation in respect of the making of, or
conversion into, or continuation of any LIBOR Loan (in the case of the initial
Interest Period applicable thereto), the Borrower shall have the right to elect,
by giving the Agent notice thereof, the interest period (each an "Interest
--------
Period") applicable to such LIBOR Loan, which Interest Period shall, at the
- ------
option of the Borrower, in the case of a LIBOR Loan, be a one, two, three or six
month period, provided that: (a) all LIBOR Loans comprising a Borrowing shall
at all times have the same Interest Period except as otherwise required by
Section 2.10(b); (b) the initial Interest Period for any LIBOR Loan shall
commence on the date of Borrowing of such Loan (including the date of any
conversion thereof into a Loan of a different Type) and each Interest Period
occurring thereafter in respect of such Loan shall commence on the day on which
the next preceding Interest Period applicable thereto expires; (c) if any
Interest Period relating to a LIBOR Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such calendar
month; (d) if any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day, provided that if any Interest Period would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day; and (e) no Interest Period shall extend beyond the Loan
Maturity Date or, in the case of Loans subject to payment in accordance with
Section 2.12(b), the Commitment Expiration Date. If upon the expiration of any
Interest Period applicable to a LIBOR Loan, the Borrower has failed to deliver
to the Agent a Notice of Continuation in accordance with Section 2.6(c) for such
LIBOR Loan, the Borrower shall be deemed to have elected to convert such Loan
into a Base Rate Loan effective as of the expiration date of such current
Interest Period.
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<PAGE>
2.10. Increased Costs, Illegality, etc.
---------------------------------
(a) In the event that any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i) below, may be made only
by the Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the
applicable interest rate on any basis provided for in the definition of LIBOR;
or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to any
LIBOR Loan because of (A) the occurrence or existence of any Regulatory Change
and/or (B) other circumstances affecting such Bank or the interbank Eurodollar
market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan
has been made (A) unlawful by any law or governmental rule, regulation or order,
(B) impossible by compliance by such Bank with any governmental request (whether
or not having force of law) or (C) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or, in the case of clause (i) above, the
Agent) shall promptly give notice (by telephone confirmed in writing) to the
Borrower and, except in the case of clause (i) above, to the Agent of such
determination (which notice the Agent shall promptly transmit to each of the
other Banks). Thereafter (x) in the case of clause (i) above, LIBOR Loans shall
no longer be available until such time as the Agent notifies the Borrower and
the Banks that the circumstances giving rise to such notice by the Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion or Notice of
Continuation given by the Borrower with respect to LIBOR Loans which have not
yet been incurred (including by way of conversion or continuation) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall pay to such Bank, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts received or receivable hereunder (a written notice as
to the additional amounts owed to such Bank, showing the basis for the
calculation thereof, submitted to the Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding on all the parties hereto)
and (z) in the case of clause (iii) above, take one of the actions specified in
Section 2.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any LIBOR Loan is affected by the circumstances
described in Section 2.10(a)(ii), the Borrower may, and at any time that any
LIBOR Loan is affected by the circumstances described in Section 2.10(a)(iii),
the Borrower shall, either (i) if the
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<PAGE>
affected LIBOR Loan is then being made initially or pursuant to a conversion,
cancel said Borrowing or conversion by giving the Agent notice by telephone
(confirmed in writing) of the cancellation on the same date that the Borrower
was notified by the Bank or the Agent pursuant to Section 2.10(a)(ii) or (iii)
or (ii) if the affected LIBOR Loan is then outstanding, upon at least three
Business Days' written notice to the Agent, require the affected Bank to convert
such LIBOR Loan into a Base Rate Loan or Loans, provided that, if more than one
Bank is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 2.10(b).
(c) If any Bank determines at any time that any Regulatory Change
will have the effect of increasing the amount of capital required or expected to
be maintained by such Bank based on the existence of such Bank's Commitment
Obligation hereunder or its obligations hereunder, then the Borrower shall pay
to such Bank, upon its written demand therefor, such additional amounts as shall
be required to compensate such Bank for the increased cost to such Bank as a
result of such increase of capital. In determining such additional amounts, each
Bank will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Bank's
determination of compensation owing under this Section 2.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Bank, upon determining that any additional amounts will be payable pursuant
to this Section 2.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts, although the failure to give any such notice shall not release or
diminish any of the Borrower's obligations to pay additional amounts pursuant to
this Section 2.10(c).
2.11. Compensation. The Borrower shall compensate each Bank, upon
------------
its written request (which request shall set forth the basis for requesting such
compensation and shall, absent manifest error, be final and conclusive and
binding on all the parties hereto), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its LIBOR Loans) which such Bank may sustain: (a)
if for any reason (other than a default by such Bank or the Agent) a Borrowing
of, or conversion from or into, or continuation of, LIBOR Loans does not occur
on a date specified therefor in a Notice of Borrowing or Notice of Conversion or
Notice of Continuation (whether or not withdrawn by the Borrower or deemed
rescinded pursuant to Section 2.10(a)); (b) if any repayment (including any
prepayment made pursuant to Sections 3.2 or 3.3) or conversion of any of its
LIBOR Loans occurs on a date which is not the last day of an Interest Period
with respect thereto; (c) if any prepayment of LIBOR Loans is not made on any
date specified in a notice of prepayment given by the Borrower; or (d) as a
consequence of (i) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or the Note of such Bank or (ii) any
action taken pursuant to Section 2.10(b).
2.12. Extension of Loan Maturity Date.
-------------------------------
(a) Not less than 60 days and not more than 90 days prior to the
Loan Maturity Date then in effect, provided that no Event of Default shall have
--------
occurred and be
-21-
<PAGE>
continuing, the Borrower may request an extension of such Loan Maturity Date by
submitting to the Agent an extension request in the form of Exhibit E (an
"Extension Request"), which the Agent shall promptly furnish to each Bank. Each
-----------------
Bank shall, no later than the 30th day after the Agent received from the
Borrower the applicable Extension Request, notify the Borrower and the Agent of
its election to extend or not extend the Loan Maturity Date as requested in such
Extension Request. If the Required Banks shall approve in writing the extension
of the Loan Maturity Date requested in such Extension Request and the Borrower
pays a commitment fee as agreed upon by the Agent, the Banks and the Borrower
and the fees required under the Agent fee letter agreement described in Section
3.1(b) as may be agreed upon at that time, then the Loan Maturity Date shall, on
the Loan Maturity Date, automatically and without any further action by any
Person, be extended for the period specified in such Extension Request; provided
--------
that (i) each extension pursuant to this Section 2.12 shall be for a maximum of
364 days and (ii) the Commitment Obligation of any Bank that does not consent in
writing within 30 days after the Agent received the applicable Extension Request
(an "Objecting Bank") shall, unless earlier terminated in accordance with this
--------------
Agreement, expire on the Loan Maturity Date in effect on the date of such
Extension Request (such Loan Maturity Date referred to as the "Commitment
----------
Expiration Date" with respect to such Objecting Bank). If the Required Lenders
- ---------------
shall not approve in writing the extension of the Loan Maturity Date requested
in an Extension Request within 30 days of the date the Agent received such
Extension Request, the Loan Maturity Date shall not be extended pursuant to such
Extension Request. The Agent shall promptly notify (y) the Banks and the
Borrower of any extension of the Loan Maturity Date pursuant to this Section
2.12 and (z) the Borrower and the Banks of any Bank which becomes an Objecting
Bank.
(b) The Commitment Obligation of an Objecting Bank shall terminate on,
and all Loans owing to such Objecting Bank on the Commitment Expiration Date for
such Bank shall be repaid in full on or before, the Commitment Expiration Date
for such Bank.
(c) Notwithstanding the foregoing, if any Bank becomes an Objecting
Bank, the Borrower may, at its own expense and in its sole discretion and prior
to the Commitment Expiration Date for such Bank, require such Bank to transfer
or assign, in whole or in part, without recourse (in accordance with Section
10.5), all or part of its interests, rights and obligations under this Agreement
to an Assignee (provided that the Borrower, with the full cooperation of such
Bank, can identify a potential assignee that is ready, willing and able to be an
Assignee with respect thereto) which shall assume such assigned obligations
(which assignee may be another Bank, if such assignee Bank accepts such
assignment); provided that (i) the assignee or the Borrower, as the case may be,
shall have paid to such Objecting Bank in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it hereunder and all other amounts owed to it hereunder, including, without
limitation, any amounts owing pursuant to Section 2.11 and any amounts that
would be owing under said Section if such Loans were prepaid on the date of such
assignment, (ii) such assignment does not conflict with any law, rule,
regulation or order of any governmental authority, and (iii) the Agent consents
to such transfer, which consent will not unreasonably be withheld. Any Assignee
which becomes a Bank as a result of such an assignment made pursuant
-22-
<PAGE>
to this Section 2.12(c) shall be deemed to have consented to the applicable
Extension Request and, therefore, shall not be an Objecting Bank.
SECTION 3. FEES AND PAYMENTS.
-----------------
3.1. Fees.
----
(a) The Borrower agrees to pay to the Agent for distribution to each
Bank a commitment fee (a "Commitment Fee") for the period from the Effective
--------------
Date until the Loan Maturity Date (or such earlier date as the Total Commitment
shall have been terminated) computed at a rate equal to 0.25% per annum on the
daily average Unutilized Commitment of such Bank. Accrued Commitment Fee shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December of each year and on the Loan Maturity Date or upon
such earlier date as the Commitment Obligation for such Bank has been
terminated.
(b) The Borrower shall pay to the Agent, for its own account, such
fees as may be agreed to from time to time in a separate letter agreement
between the Borrower and the Agent.
3.2. Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay the Loans, without premium or penalty, in whole or in part from time to
time on the following terms and conditions: (a) the Borrower shall give the
Agent at its Notice Office at least three Business Days' prior notice of its
intent to prepay the Loans, the amount of such prepayment and the Types of Loans
to be prepaid and, in the case of LIBOR Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Agent shall promptly
transmit to each Bank; (b) each prepayment shall be in an aggregate principal
amount of at least $500,000, provided that no partial prepayment of LIBOR Loans
made pursuant to any Borrowing shall reduce the outstanding Loans made pursuant
to such Borrowing to an amount less than $1,000,000; (c) prepayments of LIBOR
Loans made pursuant to this Section 3.2 may only be made on the last day of an
Interest Period applicable thereto; and (d) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans.
--- ----
3.3. Mandatory Prepayments and Reduction of Commitments.
--------------------------------------------------
(a) On any day on which the aggregate outstanding principal amount
of the Loans exceeds the Total Commitment as then in effect, the Borrower shall
immediately prepay principal of the Loans in an amount equal to such excess.
(b) In the event the Borrower:
(i) sells or otherwise disposes of any of its assets other than in
the ordinary course of business (an "Asset Disposition") or receives insurance
-----------------
proceeds as a result of the loss of, or damage to, any of its assets ("Insurance
---------
Proceeds") and, in either case, the result of which is that Borrower is no
- --------
longer in compliance with the covenants contained herein and Borrower
-23-
<PAGE>
does not deliver to the Agent within five Business Days thereof written notice
(a "Replacement Notice") signed by an Authorized Representative of its intent to
------------------
use a specified portion (which may be 100%) of the proceeds of such Asset
Disposition ("Sale Proceeds") or Insurance Proceeds to purchase or otherwise
-------------
acquire replacement assets or repair assets within (A) 60 days in the case of
personal property or (B) 180 days in the case of real property;
(ii) delivers to the Agent a Replacement Notice but does not purchase
or otherwise acquire replacement assets or repair assets within 60 days or 180
days, as the case may be, of its receipt of Sale Proceeds or Insurance Proceeds;
(iii) delivers to the Agent a Replacement Notice but does not use all
of the amount specified therein to purchase or otherwise acquire replacement
assets or repair assets within said 30-day period or 180-day period, as the case
may be;
(iv) receives Net Proceeds of Debt Issuance;
then,
(i) in the case of clauses (b)(i) and (b)(ii) the Total Commitment
will be reduced (with the Commitment for each Bank reduced on a pro rata basis)
by an amount equal to 75% of the (x) Sale Proceeds (net of the reasonable costs
of such disposition and the marginal increase in taxes, if any, which may result
to the Borrower as a result of the Asset Disposition which gave rise to such
Sale Proceeds), (y) the Insurance Proceeds (net of the reasonable costs of the
Borrower in collecting such Insurance Proceeds) or (z) the Net Proceeds of
Capital Stock, as the case may be;
(ii) in the case of clause (b)(iii), the Total Commitment will be
reduced (with the Commitment for each Bank reduced on a pro rata basis) by an
amount equal to 75% of the unused Sale Proceeds (net of a pro rata portion
(based on unused Sale Proceeds over total Sale Proceeds) of the reasonable costs
of such Asset Disposition and a pro rata portion (based on unused Sale Proceeds
over total Sale Proceeds) of the marginal increase in taxes, if any, which may
result to the Borrower as a result of the Asset Disposition which gave rise to
such Sale Proceeds) or 75% of the unused Insurance Proceeds (net of a pro rata
portion (based on unused Insurance Proceeds over total Insurance Proceeds) of
the reasonable costs of collecting such Insurance Proceeds); and
(iii) in the case of clause (b)(iv), the Total Commitment will be
reduced (with the Commitment for each Bank reduced on a pro rata basis) by an
amount equal to 100% of the Net Proceeds of Debt Issuance.
(c) With respect to each prepayment of Loans required by Section
3.3(a), the Borrower may designate the Types of Loans which are to be prepaid
and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant
to which such LIBOR Loans were made, provided that: (i) if any prepayment of
LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding
Loans made pursuant to such Borrowing to an amount less than
-24-
<PAGE>
$1,000,000, such outstanding Loans shall immediately be converted into Base Rate
Loans; and (ii) each prepayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans. In the absence of a designation by the
--- ----
Borrower as described in the preceding sentence, the Agent shall, subject to the
above, make such designation in its sole discretion.
3.4. Principal Repayment. The outstanding principal balance of all
-------------------
Loans shall be paid on the Loan Maturity Date, provided that any Loans made by
an Objecting Bank still outstanding on the Commitment Expiration Date for such
Objecting Bank shall be repaid on such Commitment Expiration Date.
3.5. Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or any Note shall be made to
the Agent for the account of the Bank or Banks entitled thereto not later than
12:00 noon on the date when due and shall be made in Dollars in immediately
available funds at the Payment Account of the Agent. Whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
3.6. Net Payments. All payments made by the Borrower hereunder or
------------
under any Note will be made without setoff, counterclaim or other defense. All
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided below, any tax imposed on or measured
by the net income of a Bank pursuant to the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
principal office or Applicable Lending Office of such Bank is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). The Borrower shall also reimburse each Bank, upon the written request
-----
of such Bank, for taxes imposed on or measured by the net income of such Bank
pursuant to the laws of the jurisdiction (or any political subdivision or taxing
authority thereof or therein) in which the principal office or Applicable
Lending Office of such Bank is located as such Bank shall determine are payable
by such Bank in respect of amounts paid to or on behalf of such Bank pursuant to
the preceding sentence (collectively, "Additional Taxes"). If any Taxes or
----------------
Additional Taxes are so levied or imposed, the Borrower agrees to pay the full
amount of such Taxes and Additional Taxes as may be necessary so that every
payment of all amounts due hereunder or under any Note, after withholding or
deduction for or on account of any Taxes and Additional Taxes, will not be less
than the amount provided for herein or in such Note. The Borrower will furnish
to the Agent within 45 days after the date the payment of any Taxes or
Additional Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower will indemnify
and hold harmless each Bank, and reimburse such Bank upon its written request,
for the amount of any Taxes and/or Additional Taxes so levied or imposed and
paid by such Bank.
-25-
<PAGE>
SECTION 4. CONDITIONS PRECEDENT.
--------------------
4.1. Initial Credit Event. The obligation of each Bank to make its
--------------------
initial Loan is subject to the satisfaction of the conditions set forth in
Section 4.2 and to the satisfaction of the following conditions:
(a) There shall have been delivered to the Agent for the account of
each Bank a Note executed by the Borrower in the amount, maturity and as
otherwise provided herein;
(b) The Agent shall have received a certificate, dated the Closing
Date, signed by the President or any Vice President of the Borrower and attested
to by the Secretary or any Assistant Secretary of the Borrower in the form of
Exhibit F with appropriate insertions, together with copies of the Articles or
Certificate of Incorporation and Bylaws of the Borrower and the resolutions of
the Borrower referred to in such certificate;
(c) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this Agreement
and the other Transaction Documents shall be satisfactory in form and substance
to the Banks, and the Agent shall have received all information and copies of
all documents and papers, including records of corporate proceedings and
governmental approvals, if any, which any Bank reasonably may have requested in
connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities;
(d) Proper financing statements (Form UCC-1) shall have been
delivered by the Borrower to be filed under the UCC of each jurisdiction as may
be necessary or, in the opinion of the Collateral Agent, desirable to perfect
the security interests purported to be created by the Security Documents;
(e) The Banks shall be satisfied that, after giving effect to the
making of the initial Loans and the application of the proceeds thereof by (or
on behalf of) the Borrower, the Borrower shall have outstanding no Indebtedness
other than the Loans and Permitted Indebtedness;
(f) Each Bank shall have received: (i) a copy of the consolidated
and consolidating balance sheets of the Borrower and its Consolidated
Subsidiaries, if any, at December 31, 1998, and copies of the related
consolidated and consolidating statements of operations and stockholders' equity
and related consolidated statement of cash flows of the Borrower and, in the
case of the statement of operations and stockholders' equity, its Consolidated
Subsidiaries, if any, for the Fiscal Year then ended (together with the
financial notes thereto, the "Financial Statements"), together, in the case of
--------------------
the consolidated financial statements, with an unqualified certification by an
independent certified public accountant acceptable to the Agent, and (ii) a copy
of the consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries, if any, at March 31, 1999, and copies of the related consolidated
statements of operations and stockholders' equity and related consolidated
statement of cash
-26-
<PAGE>
flows of the Borrower and, in the case of the statement of operations and
stockholders' equity, its Consolidated Subsidiaries, if any, for the three month
period then ended;
(g) The Agent shall have received from legal counsel to the Borrower
a legal opinion addressed to the Agent, the Collateral Agent and each Bank in
form and substance satisfactory to the Required Lenders;
(h) The Agent shall have received from the Borrower an executed
counterpart to the Agent's form automatic debit authorization; and
(i) The Borrower shall have paid to the Agent all fees due on the
Effective Date in accordance with Sections 3.1(a) and (b) and in accordance with
the letter agreement referenced in Section 3.1(c) and all costs and expenses
owing to the Agent and the Banks, and the Agent's counsel through the Closing
Date.
All the Notes, certificates and other documents and papers referred to in this
Section 4.1, unless otherwise specified, shall be delivered to the Agent and the
Collateral Agent at the Agent's Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts for each of the
Banks and shall be satisfactory in form and substance to the Banks.
4.2. All Credit Events. The obligation of each Bank to make any Loan
-----------------
(including the initial Loans) is subject, at the time of each Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
(a) At the time of each Credit Event and also after giving effect
thereto (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein and in the other Transaction
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Credit Event (except to the extent that a representation and
warranty speaks specifically of an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier date);
and
(b) Prior to each Credit Event, the Agent shall have received a
Notice of Borrowing with respect thereto meeting the requirements of Section
2.3.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agent and each of the Banks
that all the conditions specified in Section 4.2 exist as of that time.
SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
------------------------------------------
In order to induce the Banks to enter into this Agreement and to make
the Loans, the Borrower makes the following representations, warranties and
agreements as of the Effective Date and the Closing Date, which shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans:
-27-
<PAGE>
5.1. Status. The Borrower (a) is a duly organized and validly
------
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, (b) has the power and authority to own its property and assets
and to transact the business in which it is engaged and (c) is duly qualified as
a foreign corporation and in good standing in each jurisdiction where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect.
5.2. Corporate Power; Execution and Delivery; Enforceability. The
-------------------------------------------------------
Borrower has the corporate power to execute, deliver and perform the terms and
provisions of each of the Transaction Documents and has taken all necessary
corporate action to authorize the execution, delivery and performance by it of
each of such Transaction Documents. The Borrower has duly executed and
delivered each of the Transaction Documents, and each of such Transaction
Documents constitutes its legal, valid and binding obligation enforceable in
accordance with its terms.
5.3. No Violation. Neither the execution, delivery or performance by
------------
the Borrower of the Transaction Documents nor compliance by it with the terms
and provisions thereof, nor the use of the proceeds of the Loans, (a) will
contravene any provision of any law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality, (b)
will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the property or
assets of the Borrower pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other material agreement,
contract or instrument to which the Borrower is a party or by which it or any of
its property or assets is bound or to which it may be subject or (c) will
violate any provision of the articles of incorporation or bylaws of the
Borrower.
5.4. Approvals. To the best of Borrower's knowledge, no order,
---------
consent, approval, license, authorization or validation of, or filing, recording
or registration with (except as have been obtained or made prior to the
Effective Date), or exemption by, any governmental or public body or authority,
or any subdivision thereof, or any other Person is required to authorize, or is
required in connection with, (a) the execution, delivery and performance of any
Transaction Document or (b) the legality, validity, binding effect or
enforceability of any such Transaction Document.
5.5. Financial Statements; Financial Condition; Undisclosed
------------------------------------------------------
Liabilities; etc.
- -----------------
(a) The Financial Statements, the consolidated balance sheet of the
Borrower at March 31, 1999, and the related consolidated statements of
operations and stockholders' equity and related statement of cash flows of the
Borrower for the three-month period, as the case may be, ended on such date and
heretofore furnished to the Banks present fairly (i) the consolidated financial
condition of the Borrower and its Consolidated Subsidiaries, if any, at March
31, 1999 and the consolidated results of the operations of the Borrower and its
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<PAGE>
Consolidated Subsidiaries, if any, for the Fiscal Year ended December 31, 1998,
(ii) the financial condition of each Consolidated Subsidiary, if any, of the
Borrower at December 31, 1998 and the results of the operations of each
Consolidated Subsidiary, if any, of the Borrower for the Fiscal Year ended
December 31, 1998, in each case determined on a non-consolidated basis, and
(iii) the financial condition of the Borrower and its Subsidiaries, if any, at
March 31, 1999 and the results of the operations of the Borrower and its
Consolidated Subsidiaries, if any, for the three-month period ended March 31,
1999. All such financial statements have been prepared in accordance with GAAP
except, in the case of the financial statements for the three-month period ended
on March 31, 1999, for (x) normal year-end audit adjustments and (y) the failure
to use consolidation principles.
(b) Since March 31, 1999, there has been no Material Adverse Effect
upon the business, operations, property, assets or condition (financial or
otherwise) of the Borrower.
(c) Except as fully reflected in the financial statements described
in Section 5.5(a), there are no liabilities or obligations with respect to the
Borrower of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower. The Borrower does not know of any basis for
the assertion against the Borrower of any liability or obligation of any nature
whatsoever that is not fully reflected in such financial statements which,
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.6. Litigation. There are no actions, suits or proceedings pending
----------
or, to the best knowledge of the Borrower, threatened (a) with respect to any
Transaction Document or (b) that could reasonably be expected to have a Material
Adverse Effect.
5.7. True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower in writing to the Agent or any Bank (including, without limitation, all
information contained in the Transaction Documents) for purposes of or in
connection with this Agreement or any transaction contemplated herein is, and
all other such factual information (taken as a whole) hereafter furnished by or
on behalf of the Borrower in writing to the Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading at such time in light of
the circumstances under which such information was provided.
5.8. Use of Proceeds; Margin Regulations. Neither the making of any
-----------------------------------
Loan nor the use of the proceeds thereof will violate or be inconsistent with
the provisions of Regulation U of the Board of Governors of the Federal Reserve
System.
5.9. Tax Returns and Payments. The Borrower has filed all tax
------------------------
returns required to be filed by it and has paid all income taxes payable by it
which have become due pursuant to such tax returns and all other taxes and
assessments payable by it which have become
-29-
<PAGE>
due, other than those not yet delinquent and except for those contested in good
faith and for which adequate reserves have been established in accordance with
GAAP and those for which the failure to do so would cause a Material Adverse
Effect. The Borrower has paid, or has provided adequate reserves (in the good
faith judgment of the management of the Borrower) for the payment of, all
federal and state income taxes applicable for all prior Fiscal Years and for the
current Fiscal Year to the date hereof.
5.10. Compliance with ERISA. Each Plan is in substantial compliance
---------------------
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability, and no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; none of the Borrower, any Subsidiary thereof or any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
expects to incur any liability under any of the foregoing sections with respect
to any such Plan; no proceedings have been instituted to terminate any Plan; no
condition exists which presents a material risk to the Borrower, any Subsidiary
thereof or any ERISA Affiliate of incurring a liability to or on account of a
Plan pursuant to the foregoing provisions of ERISA and the Code; no Lien imposed
under the Code or ERISA on the assets of the Borrower, any Subsidiary thereof or
any ERISA Affiliate exists or is likely to arise on account of any Plan; and the
Borrower and its Subsidiaries may terminate contributions to any other employee
benefit plans maintained by them without incurring any material liability to any
Person interested therein.
5.11. Capitalization. Aside from those listed in the attached
--------------
Schedule 5, the Borrower does not have outstanding any securities convertible
into or exchangeable for its Capital Stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its Capital Stock.
5.12. Scheduled Information.
---------------------
(a) Part A of Schedule 6 correctly sets forth, but before giving
effect to the incurrence of Loans and the use of the proceeds thereof on the
Closing Date, all holders of Indebtedness of the Borrower (with the balance of
each such Indebtedness stated as of March 31, 1999) and Part B of Schedule 6
correctly sets forth all holders of Indebtedness of the Borrower other than
Indebtedness that is to be paid or prepaid from the incurrence of Loans on the
Closing Date (all Indebtedness listed in Part B of Schedule 6, the "Permitted
---------
Indebtedness").
- ------------
(b) Part A of Schedule 7 correctly sets forth, but before giving
effect to the incurrence of Loans and the use of the proceeds thereof on the
Closing Date, all Liens securing any Indebtedness of the Borrower and Part B of
Schedule 7 correctly sets forth all other Liens over any property (real,
personal, tangible, intangible, existing or hereafter acquired) of the Borrower
-30-
<PAGE>
(c) Schedule 8 correctly sets forth a listing of all insurance
maintained by the Borrower.
(d) Schedule 9 correctly sets forth the address and location of
each real property leased by the Borrower and the name and address of the
landlord thereof.
5.13. Compliance with Statutes, etc. To the best of Borrower's
------------------------------
knowledge the Borrower is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.14. Labor Relations. To the best of Borrower's knowledge the
---------------
Borrower is not engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (a) no significant unfair
labor practice complaint pending against the Borrower or, to the best knowledge
of the Borrower, threatened against it, before the National Labor Relations
Board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or, to the best knowledge of the Borrower, threatened
against it, (b) no significant strike, labor dispute, slowdown or stoppage
pending against the Borrower or, to the best knowledge of the Borrower,
threatened against it and (c) to the best knowledge of the Borrower, no union
representation question existing with respect to the employees of the Borrower
and, to the best knowledge of the Borrower, no union organizing activities are
taking place, except (with respect to any matter specified in clause (a), (b) or
(c) above, either individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
5.15. Patents, Licenses, Franchises and Formulas. The Borrower owns
------------------------------------------
all the patents, trademarks, permits, service marks, trade names, copyrights,
licenses, franchises and formulas, or rights with respect to the foregoing, and
has obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, could not reasonably be expected to have a Material Adverse Effect.
5.16. Year 2000 Problem. The Borrower has reviewed the areas within
-----------------
its operations and business which could be adversely affected by, and has
developed a program and related systems to enable the Borrower to become Year
2000 Compliant by December 31, 1999 and that such compliance cost to Borrower to
become Year 2000 Compliant has not and will not cause a Material Adverse Effect
or a default under any of the terms of this Agreement or any indenture mortgage,
deed of trust, credit agreement, loan agreement, or any other agreement,
contract, or instrument to which the Borrower is a party or by which it or any
of its property or assets is bound or to which it may be subject. The Borrower
has made appropriate inquiries of its suppliers and vendors whose Year 2000
Problem, if any, is likely to be material to the
-31-
<PAGE>
business of the Borrower, and has reasonably concluded that their Year 2000
Problems, if any, will not have a Material Adverse Effect.
5.17. Investment Company Act. The Borrower is not an "investment
----------------------
company" within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. The Borrower is not a
----------------------------------
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
5.19. Subsidiaries. Other than those listed in the attached
------------
Schedule 10 the Borrower does not have any Subsidiaries.
SECTION 6. AFFIRMATIVE COVENANTS.
---------------------
The Borrower covenants and agrees that on and after the Effective Date
and until the Commitment Obligations have terminated and the Loans and the
Notes, together with interest, and all other obligations incurred hereunder and
thereunder, are paid in full:
6.1. Information Covenants. The Borrower will furnish to each Bank:
---------------------
(a) Monthly Financial Statements. Within 30 days after the close of
----------------------------
each month in each Fiscal Year of the Borrower, the balance sheet of the
Borrower as at the end of such month and the related consolidated statement of
operations and stockholders' equity for such month and for the elapsed portion
of the Fiscal Year ended with the last day of such month, and, in each case,
setting forth comparative figures for the related periods in the prior Fiscal
Year, all of which shall be in form and substance acceptable to the Agent and
certified by the Borrower's director of finance, subject to normal year-end
audit adjustments.
(b) Annual Financial Statements. Within 90 days after the close of
---------------------------
each Fiscal Year of the Borrower, the audited consolidated and unaudited
consolidating balance sheets of the Borrower as at the end of such Fiscal Year
and the related audited consolidated and unaudited consolidating statements of
operations and stockholders' equity and related audited consolidated statements
of cash flows for such Fiscal Year, in each case setting forth comparative
figures for the preceding Fiscal Year, and certified, in the case of the
consolidated financial statements, by independent certified public accountants
acceptable to the Required Banks. No such certification shall be qualified as
to (i) going concern, (ii) any limitation in the scope of the audit or (iii)
possible errors generated by financial reporting and related systems due to the
Year 2000 Problem.
(c) Management Letters. Promptly after the Borrower's receipt
------------------
thereof, a copy of any "management letter" received by the Borrower from its
certified public accountants.
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<PAGE>
(d) Budgets. Within 90 days after the first day of each Fiscal Year
-------
of the Borrower, a budget in form satisfactory to the Required Banks (including
budgeted statements of income and retained earnings, and sources and uses of
cash and balance sheets) prepared by the Borrower for each of the four Fiscal
Quarters of such Fiscal Year accompanied by the statement of the chief financial
officer of the Borrower to the effect that, to the best of his or her knowledge,
the budget is a reasonable estimate for the period covered thereby.
(e) Compliance Certificates. At the time of the delivery of the
-----------------------
financial statements provided for in Section 6.1(a) and (b), a certificate of an
Authorized Representative in the form attached hereto as Exhibit H (each, a
"Compliance Certificate").
- -----------------------
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within four Business Days after an officer of the Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a Default
or Event of Default, (ii) any litigation or governmental proceeding pending
against the Borrower which could reasonably be expected to have a Material
Adverse Effect.
(g) Year 2000 Problems. Promptly, upon the request of the Agent, a
------------------
copy of the plan, timetable and budget of the Borrower to address the Year 2000
Problem, together with periodic updates thereof and expenses incurred to date,
any third party assessment of the Borrower's Year 2000 remediation efforts, any
Year 2000 contingency plans and any estimates of the Borrowers' potential
litigation exposure (if any) to the Year 2000 Problem.
(h) Other Reports and Filings. Promptly, copies of all financial
-------------------------
information, proxy materials and other information and reports, if any, which
the Borrower thereof shall file with the Securities and Exchange Commission or
any governmental agencies substituted therefor.
(i) Other Information. From time to time, such other information or
-----------------
documents (financial or otherwise) as any Bank may reasonably request.
6.2. Books, Records and Inspections. The Borrower will keep proper
------------------------------
books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities. The Borrower will
permit officers and designated representatives of the Agent or any Bank to visit
and inspect, under guidance of officers of the Borrower and in compliance with
Borrower's standard security procedures, any of the properties of the Borrower
and to examine and audit the books of record and account of the Borrower and
discuss the affairs, finances and accounts of the Borrower with, and be advised
as to the same by, its and their officers, all at such reasonable times, and
upon 48 hours notice, and intervals and to such reasonable extent as the Agent
or such Bank may request.
6.3. Maintenance of Property, Insurance. The Borrower will (a) keep
----------------------------------
all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, (b) maintain with financially sound
and reputable insurance companies
-33-
<PAGE>
insurance on all its property in at least such amounts and against at least such
risks as are described in Schedule 8, and (c) furnish to each Bank, upon written
request, full information as to the insurance carried. The provisions of this
Section 6.3 shall be deemed to be supplemental to, but not duplicative of, the
provisions of any of the security documents that require the maintenance of
insurance. The Borrower shall ensure that each insurance policy maintained by
the Borrower names the Collateral Agent as lender loss payee and the Agent, the
Collateral Agent and the Banks as additional insureds.
6.4. Corporate Franchises. The Borrower will do or cause to be done,
--------------------
all things necessary to preserve and keep in full force and effect its existence
and its material rights, franchises, licenses and patents; provided, however,
-------- -------
that nothing in this Section 6.4 shall prevent the withdrawal by the Borrower of
its qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a Material Adverse Effect.
6.5. Compliance with Statutes, etc. The Borrower will comply with
------------------------------
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), except such noncompliances as could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.6. ERISA. As soon as possible and, in any event, within 10
-----
Business Days after the Borrower or any ERISA Affiliate knows or has reason to
know any of the following, the Borrower will deliver to each of the Banks a
certificate of an Authorized Representative setting forth details as to such
occurrence and such action, if any, which the Borrower or such ERISA Affiliate
is required or proposes to take, together with any notices required or proposed
to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan Administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan; that a Plan has been or
may be terminated, reorganized, partitioned or declared insolvent under Title IV
of ERISA; that a Plan has an Unfunded Current Liability giving rise to a Lien
under ERISA; that proceedings may be or have been instituted to terminate a
Plan; that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; or that the Borrower, any
Subsidiary thereof or any ERISA Affiliate will or may incur any liability
(including any contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4201 or
4204 of ERISA or with respect to a Plan under Section 4971 or 4975 of the Code
or Section 409 or 502(i) or 502(l) of ERISA.
6.7. End of Fiscal Years; Fiscal Quarters. The Borrower shall cause
------------------------------------
(a) each of its fiscal years to end on December 31 and (b) each of its Fiscal
Quarters to end on the last day of March, June, September, and December.
-34-
<PAGE>
6.8. Performance of Obligations. The Borrower will perform all its
--------------------------
obligations under the terms of each mortgage, indenture, security agreement and
other debt instrument by which it is bound, except such non-performances as
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.9. Use of Proceeds; Margin Regulations. The proceeds of each Loan
-----------------------------------
shall be used by the Borrower for working capital and general corporate
purposes. Notwithstanding anything to the contrary contained in this Section
6.9, no part of the proceeds of any Loan will be used by the Borrower to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock.
6.10. Year 2000 Problems. The Borrower covenants and agrees that it
------------------
will perform all acts reasonably necessary to ensure that it and any business in
which the Borrower holds a substantial interest, become Year 2000 Compliant by
December 31, 1999. Such acts shall include, without limitation, performing a
comprehensive review and assessment of all of the systems of the Borrower and
the remediation, monitoring and testing of such systems.
6.11. Control. The management of the Borrower shall include Masood
-------
Tayebi, Massih Tayebi, and Thomas Munro.
6.12 LandLord's Consent. Within Thirty (30) days of the Closing Date
------------------
deliver to the Collateral Agent a Landlord's Consent in the form of Exhibit G
executed and delivered by the landlord of each and every real property
identified on Schedule 9.
SECTION 7. NEGATIVE COVENANTS.
------------------
The Borrower covenants and agrees that on and after the Effective Date
and until the Commitment Obligations have terminated and the Loans and the
Notes, together with interest, and all other obligations incurred hereunder and
thereunder, are paid in full:
7.1. Liens. The Borrower will not create, incur, assume or suffer to
-----
exist any Lien upon or with respect to any of its property or assets (real or
personal, tangible or intangible), whether now owned or hereafter acquired, and
such lien shall continue for a period of more than ten (10) business days,
provided that the provisions of this Section 7.1 shall not prevent the creation,
incurrence, assumption or existence of the following (all of which are
"Permitted Liens"):
(a) Liens for taxes, fees, assessments, levies or other
governmental charges not yet delinquent, or Liens for taxes, fees, assessments,
levies or other governmental charges being contested in good faith and by
appropriate proceedings for which adequate reserves have been established;
(b) Liens in respect of property or assets of the Borrower imposed
by law, which were incurred in the ordinary course of business, such as
carriers', warehousemen's and mechanics' liens and other similar Liens arising
in the ordinary course of business and (i) which
-35-
<PAGE>
do not in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the business of
the Borrower and its Subsidiaries or (ii) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to any such
Lien;
(c) Liens described in section 5.12(b);
(d) Liens created pursuant to the Security Documents;
(e) Pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(f) Purchase Money Liens;
(g) Liens on Equipment (including proceeds thereof and accessions
thereto) leased by the Borrower pursuant to operating leases entered into in the
ordinary course of business incurred solely for the purpose of financing the
lease of such Equipment;
(h) Liens in favor of customs authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of
goods;
(i) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution;
(j) Liens for taxes or assessments or other government taxes not
yet due and payable;
(k) Pledges or deposits of money securing bids, tender, contracts,
(other than contracts for the payment of money) or leases to which Borrower is a
party as lessee made in the ordinary course of business,
(l) Pledges or deposits of money securing bids, tender, contracts
(other than ordinary contracts for the payment of money) or leases to which
Borrower is a party as lessee made in the ordinary course of business;
(m) Inchoate and unperfected workers', mechanics' or similar liens
arising in the ordinary course of business, so long as such Liens attach only to
Equipment, Fixtures and/or real estate.
(n) Carriers, warehousemen's, suppliers', or other similar
possessory liens arising in the ordinary course of business and securing
liabilities in an outstanding aggregate amount not in excess of $100,000.00 at
any one time, so long as such Liens attach only to Inventory;
-36-
<PAGE>
(o) Deposits securing, or in lieu of, surety, appear or customs
bonds in proceedings to which Borrower is a party;
(p) Zoning restrictions, easements, licenses, or other restrictions
on the use of any real estate or other minor irregularities in title (including
leasehold title) thereto, so long as the same do not materially impair the use,
value or marketability of such real estate; and
(q) Liens incurred in connection with the extension, renewal,
refunding, refinancing, modification, amendment or restatement of the
Indebtedness secured by Liens of the type described in clauses (c), (f) and (g)
above, provided that any replacement Lien arising as a result of any such
extension, renewal, refunding, refinancing, modification, amendment or
restatement shall be limited to the property encumbered by the existing Lien and
the principal amount of the Indebtedness being extended, renewed, refunded,
refinanced, modified, amended or restated does not increase.
7.2. Consolidation, Merger, Sale of Assets, etc. The Borrower will
-------------------------------------------
not wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its
property or assets, or purchase or otherwise acquire (in one or a series of
related transactions) any part of the property or assets (other than purchases
or other acquisitions of Inventory, materials and Equipment in the ordinary
course of business) of any Person, except that (a) the Borrower may make sales
of Inventory in the ordinary course of its business, (b) subject to Section
3.3(b), the Borrower may, in the ordinary course of business, sell Equipment
which is uneconomic or obsolete, (c) capital expenditures shall be permitted to
the extent not in violation of Section 7.7 or (d) Borrower and/or its
Subsidiaries may make acquisitions of property, assets or stock so long as the
conditions set forth below are satisfied.
(i) If Borrower or a Subsidiary desires to acquire all or
substantially all of the assets or capital Stock of any Person (the "Target"),
------
the following conditions must be satisfied and in each case upon written
approval of Agent, such Acquisition shall become a "Permitted Acquisition":
---------------------
(A) Agent shall receive at least thirty (30) Business Day's prior
written notice of the intended closing date of such proposed Acquisition, which
notice shall include a reasonably detailed description of such proposed
Acquisition and a report setting forth all financial and related information
concerning the proposed Acquisition as Agent then may reasonably request in such
form, manner and detail as then reasonably requested by Agent; including updated
versions of the most recently delivered projections covering the one (1) year
period commencing on the date of such Permitted Acquisition and otherwise
prepared in accordance with the Borrower's projections (the "Acquisition
-----------
Projections") and based upon historical financial data of a recent date
- -----------
satisfactory to Agent, taking into account such Permitted Acquisition;
-37-
<PAGE>
(B) such Acquisition shall be consensual and shall have been
approved by the Target's board of directors (i.e., it is not a "hostile"
---
Acquisition);
(C) such Acquisition shall comprise a business, or those assets of
a business, of the type engaged in by Borrower and its Subsidiaries as of the
Closing Date, and which business would not subject Agent or any Lender to
regulatory or third party approvals in connection with the exercise of its
rights and remedies under this Agreement or any other Loan Documents other than
approvals applicable to the exercise of such rights and remedies with respect to
Borrower prior to such proposed Acquisition;
(D) at the time of such proposed Acquisition and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing;
(E) Agent shall have received at least five (5) days prior to the
intended closing date of such Acquisition or on the date of their intended
execution (if required or permitted to be executed prior to such Acquisition
being consummated whichever is the earlier), copies of all documents,
instruments and agreements substantially in the form to be executed by Borrower
or any of its Subsidiaries evidencing, governing or relating to such Acquisition
(the "Acquisition Documents), and Agent shall be satisfied therewith and with
---------------------
any change in the organization structure of Borrower and its Subsidiaries
resulting therefrom;
(F) at or prior to the closing of any Acquisition, (I) Agent shall
have received such documents and instruments as may be necessary to grant or
confirm to Agent a perfected Lien (subject to Permitted Encumbrances) on or
security interest in the Stock, all assets or the line of business so acquired
by, and not merged into, Borrower or a Subsidiary, (II) if the Target is
acquired by, and not merged into, Borrower or any other Subsidiary, Target shall
have executed a guaranty of all of the Obligations of Borrower hereunder subject
to any appropriate limitations as Agent shall determine in its discretion, (III)
Borrower shall have executed in favor of Agent an Assignment of Representations,
Warranties, Covenants, Indemnities and Rights in respect of Borrower's or any
other applicable Subsidiary's rights under the applicable Acquisition Agreement,
and (IV) Borrower or any other applicable Subsidiary and the Target shall have
executed such other documents and taken such additional actions as may be
required by Agent in connection therewith;
(G) Concurrently with delivery of the notice referred to in clause
(I) above, Borrower shall have delivered to Agent, in form and substance
satisfactory to Agent a pro forma consolidated and consolidating balance sheet,
income statement and cash flow statement of Borrower and its Subsidiaries (the
"Acquisition Pro Forma"), based on recent financial statements, which shall be
- ----------------------
complete and shall fairly present in all material respects the assets,
liabilities, financial condition and results of operations of Borrower and its
Subsidiaries in accordance with GAAP consistently applied, but taking into
account such Acquisition and the funding of all Loans in connection therewith,
and such Acquisition Pro Forma shall reflect that:
-38-
<PAGE>
(I) At the time of the closing of such Acquisition, Borrower is in
compliance with all financial covenants set forth in this Agreement on a pro
forma basis, giving effect to such Acquisition as of the then most recently
concluded fiscal month end of Borrower for which financial reports are then
available (which must be within sixty (60) days prior to the date of
consummation of such Acquisition), on both a historical and prospective basis,
for the respective twelve (12) months periods both preceding and succeeding such
fiscal month end, as reflected on the Acquisition Pro Forma for each of such
fiscal periods;
(II) At the time of the closing of such Acquisition, on a pro forma
basis, after factoring in the Target's share as a Subsidiary of Borrower of
historical overhead, debt service and similar costs allocated to Borrower's
Subsidiaries over the twelve (12) months ending as of the most recently
concluded fiscal month of Borrower prior to the Acquisition for which financial
statements are available (which must be within sixty (60) days prior to the date
of consummation of such Acquisition), the Target on a stand alone basis, has a
positive EBITDA;
(III) On a pro forma basis, no Event of Default shall have occurred
and be continuing or would result after giving effect to such Acquisition and
Borrower would have been in compliance with the financial covenants contained in
this Agreement for the four quarter period reflected in the Compliance
Certificate most recently delivered to Agent prior to the consummation of such
Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans
funded in connection therewith as if made on the first day of such period);
(H) no additional Indebtedness, Guaranteed Indebtedness, contingent
obligations or other liabilities shall be incurred, assumed or otherwise be
reflected on a consolidated and consolidating balance sheet of Borrower and
Target after giving effect to such Acquisition, except (I) Loans made hereunder
or other Permitted Indebtedness, and (II) ordinary course trade payables,
performance bonds, accrued expenses, unsecured Indebtedness and assumed real and
personal property leases of the Target to the extent no Default or Event of
Default shall have occurred and be continuing or would result after giving
effect to such Acquisition and the total amount of any assumed real and personal
property leases of the Target when combined with existing real and personal
property leases of Borrower and its Subsidiaries shall not exceed the permitted
amounts set forth in this Agreement.
7.3. Dividends. The Borrower will not declare or pay any dividends,
---------
or return any capital, to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for a consideration, any shares of any class of its Capital Stock now or
hereafter outstanding (or any options or warrants issued by the Borrower with
respect to its Capital Stock), or set aside any funds for any of the foregoing
purposes.
7.4. Indebtedness. The Borrower will not contract, create, incur,
------------
assume or suffer to exist any Indebtedness, except (a) Indebtedness of the
Borrower incurred under the Transaction Documents, (b) Permitted Indebtedness,
(c) so long as no Default has occurred and is continuing at the time such
Indebtedness is incurred or would result from the making thereof,
-39-
<PAGE>
Money Indebtedness, (d) accrued expenses and current trade accounts payable
incurred in the ordinary course of business, and obligations under trade letters
of credit incurred by the Borrower in the ordinary course of business, which are
to be repaid in full not more than one year after the date on which such
Indebtedness is originally incurred to finance the purchase of goods by the
Borrower, (e) obligations under letters of credit incurred by the Borrower in
the ordinary course of business in support of obligations incurred in connection
with worker's compensation, unemployment insurance and other social security
legislation, (f) Indebtedness with respect to Capital Leases to the extent
permitted by Section 7.7, (g) any other Indebtedness not exceeding $200,000 in
aggregate principal amount at any one time outstanding, (h) any additional
Indebtedness allowed by the Required Banks in connection with Permitted
Acquisitions; and (i) extensions, renewals, refundings, modifications,
amendments and restatements of any of the items of Indebtedness described in
clauses (a), (b), (c), (f) and (g) above, provided that the principal amount
thereof is not increased and the terms thereof are not modified to impose more
burdensome terms upon the Borrower.
7.5. Advances, Investments and Loans. The Borrower will not lend
-------------------------------
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or Securities of, or any other interest in, or make any
capital contribution to, any other Person, or create any Subsidiaries except
that (a) the Borrower may acquire and hold Accounts owing to it, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms and (b) the Borrower may make Permitted
Investments.
7.6. Transactions with Affiliates. The Borrower will not enter into
----------------------------
any transaction or series of related transactions, whether or not in the
ordinary course of business, with any Affiliate of the Borrower, other than on
terms and conditions substantially as favorable to the Borrower as would be
obtainable by the Borrower at the time in a comparable arm's-length transaction
with a Person other than an Affiliate, and other than the financing of employee
stock options.
7.7 Capital Expenditures. The Borrower will not make any
--------------------
expenditure for fixed or capital assets (including, without limitation,
expenditures for maintenance and repairs which should be capitalized in
accordance with GAAP and including capitalized lease obligations) during any
Fiscal Year if, as a result thereof, the aggregate amount of such expenditures
for such Fiscal Year would exceed $2,500,000.
7.8. Trading Ratio. The Borrower will not permit the ratio of (a)
-------------
the sum of (i) its cash, (ii) its Permitted Investments of the type described in
clause (ii) of the definition thereof, (iii) its billed and unbilled Accounts
(excluding construction pass-through Accounts) to (b) the sum of its (i)
accounts payable (excluding construction pass-through accounts payable), (ii)
all amounts it owes under this Agreement and the Notes and (iii) its operational
accruals (excluding construction pass-through accruals) at any time to be less
than 1:25 to 1:00.
7.9. Net Worth. The Borrower will not, at any time permit Net Worth
---------
plus Subordinated Debt to be less than $20,000,000, plus (b) an aggregate amount
equal to 50% of
-40-
<PAGE>
Net Income for each completed Fiscal Quarter beginning with the Fiscal Quarter
ended June 30, 1999 (provided that any negative Net Income amount shall be
treated as $0.00 for the purposes of these calculations) plus (c) an aggregate
amount equal to 75% of Net Proceeds of Capital Stock for each completed Fiscal
Quarter beginning with the Fiscal Quarter ended June 30, 1999.
7.10. Profitability. The Borrower will not permit Net Income in any
-------------
one (1) Fiscal Quarter to be less than $750,000, or Net Income in any two (2)
consecutive Fiscal Quarters to average less than $1,000,000 per Fiscal Quarter.
7.11 Maximum Debt to Net Worth. The Borrower will not permit its
-------------------------
Indebtedness minus Subordinated Debt to exceed 1.75 times the sum of Net Worth
and Subordinated Debt.
7.12 Working Capital. The Borrower will not permit its Working
---------------
Capital to be less than $20,000,000.
7.13 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness; Modifications of Certificate of Incorporation, Bylaws and Certain
- -------------------------------------------------------------------------------
Other Agreements; etc. The Borrower will not without the prior written consent
- ----------------------
of the Required Banks: (a) make any voluntary or optional payment or prepayment
on or redemption or acquisition for value of (including, without limitation, by
way of depositing with the trustee with respect thereto money or securities
before due for the purpose of paying when due) any Permitted Indebtedness or (b)
amend or modify, or permit the amendment or modification of, any material
provision of any Permitted Indebtedness or of any agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating to any of the foregoing or (c) amend, modify or change its
articles of incorporation (including, without limitation, by the filing or
modification of any certificate of designation) or bylaws, or any agreement
entered into by it, with respect to its Capital Stock, or enter into any new
agreement with respect to its Capital Stock.
Notwithstanding any provision in this section 7.13 to the contrary, as
long as no Events of Default exist, then (i) Borrower is permitted to repay
those notes owed to individuals listed as "Entel Shareholders" in Schedule 6 of
the Agreement; and (ii) upon Borrower's completion of an underwritten public
offering resulting in net proceeds to Borrower of at least $40,000,000, Borrower
is permitted to repay Subordinated Debt owed to Massih and Massood Tayebi.
7.14 Business. The Borrower will not engage (directly or indirectly)
--------
in any business other than the business in which it is engaged on the Effective
Date or any business incidental thereto.
SECTION 8. EVENTS OF DEFAULT.
-----------------
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
----------------
8.1. Payments. The Borrower shall (a) default in the payment when
--------
due of any principal of any Loan or any Note or (b) default, and such default
shall continue unremedied for two or more Business Days, in the payment when due
of any interest on any Loan or any Note or any fees or any other amounts owing
hereunder or under any Transaction Document; or
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<PAGE>
8.2. Representations, etc. Any representation, warranty or statement
---------------------
made by or on behalf of the Borrower herein or in any other Transaction Document
or in any certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made; or
8.3. Covenants. The Borrower shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Section 6.1(f)(i) or Section 7; or (b) default in the due performance or
observance by it of any term, covenant or agreement contained in Sections
6.1(a), (b) and (d) and such default shall continue unremedied for a period of
10 Business Days from the occurrence of such default; or (c) default in the due
performance or observance by it of any other term, covenant or agreement (other
than those referred to in Sections 8.1 and 8.2 and clauses (a) and (b) of this
Section 8.3) contained in this Agreement and such default shall continue
unremedied for a period of 30 days after the occurrence of such default; or
8.4. Cross Default; Cross Acceleration. The Borrower shall (a)
---------------------------------
default in any payment of any Indebtedness (other than the Notes) beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created or (b) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity; or any Indebtedness of the Borrower shall be declared to be
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
8.5. Bankruptcy, etc. The Borrower shall commence a voluntary case
----------------
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against the Borrower,
- ----------------
and the petition is not controverted within 10 Business Days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower, or the Borrower commences any
other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower, or
there is commenced against the Borrower any such proceeding which remains
undismissed for a period of 60 days, or the Borrower is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower suffers any appointment of any custodian
or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Borrower makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower for the purpose of effecting any of the foregoing; or
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8.6. ERISA. Any Plan shall fail to maintain the minimum funding
-----
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; any Plan is, shall have been or is likely to be terminated or the
subject of termination proceeding under ERISA; any Plan shall have an Unfunded
Current Liability; or the Borrower or any ERISA Affiliate has incurred or is
likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 of the Code, or the Borrower has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) which provide benefits to retired employees (other
than as required by Section 601 of ERISA); there shall result from any such
event or events the imposition of a Lien upon the assets of the Borrower, the
granting of a security interest, or a liability or a material risk of incurring
a liability, which Lien, security interest or liability, in the opinion of the
Required Banks, will have a Material Adverse Effect; or
8.7. Security Documents. The Security Documents or any provision
------------------
thereof shall cease to be in full force and effect, or shall cease to give the
Collateral Agent the Liens, rights, powers and privileges purported to be
created thereby, or the Borrower or any other Person obligated under any
Security Document (other than the Collateral Agent) shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to such Security Document beyond the period of
grace therein; or
8.8. Judgments. One or more judgments or decrees shall be entered
---------
against the Borrower involving in the aggregate for the Borrower a liability
(not paid or fully covered by insurance) of $200,000 or more, and all such
judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 60 days after the entry thereof; then, and in any such
event, and at any time thereafter, if any Event of Default shall then be
continuing, the Agent may and, upon the written request of the Required Banks,
shall by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Agent, any Bank or the holder of
any Note to enforce its claims against the Borrower (provided, that, if an Event
of Default specified in Section 8.5 shall occur with respect to the Borrower,
the result which would occur upon the giving of written notice by the Agent to
the Borrower as specified in clauses (a) and (b) below shall occur automatically
without the giving of any such notice): (a) declare the Commitment Obligations
terminated, whereupon the Commitment Obligation of each Bank shall forthwith
terminate immediately without any other notice of any kind; (b) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and (c)
exercise any and all of the rights and remedies available to the Agent, the
Collateral Agent and the Banks under the Transaction Documents, at law
(including, without limitation, the UCC) or equity.
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<PAGE>
SECTION 9. THE AGENT, COLLATERAL AGENT AND DOCUMENTATION AGENT.
---------------------------------------------------
9.1. Appointment. The Banks hereby designate Imperial Bank as Agent
-----------
(for purposes of this Section 9, the term "Agent" shall also include Imperial
Bank in its capacity as Collateral Agent under the Transaction Documents to
which it is a party) to act as specified herein and in the other Transaction
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Agent to take such action on its behalf under the provisions of this Agreement,
the other Transaction Documents and any other instruments and agreements
referred to herein or therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its officers, directors, agents or employees.
9.2. Nature of Duties. The Agent shall have no duties or
----------------
responsibilities except those expressly set forth in this Agreement and the
Transaction Documents. Neither the Agent nor any of its officers, directors,
agents or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Transaction Document or in connection herewith
or therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Agent shall be mechanical and administrative in
nature; the Agent shall not have by reason of this Agreement or any other
Transaction Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Transaction
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement or any other
Transaction Document except as expressly set forth herein.
9.3. Lack of Reliance on the Agent. Independently and without
-----------------------------
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (a) its own independent
investigation of the financial condition and affairs of the Borrower in
connection with the making and the continuance of the Loans and the taking or
not taking of any action in connection herewith and (b) its own appraisal of the
creditworthiness of the Borrower and, except as expressly provided in this
Agreement, the Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
The Agent shall not be responsible to any Bank or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Transaction Document or the financial condition of the Borrower or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other
Transaction Document, or the financial condition of the Borrower or the
existence or possible existence of any Default or Event of Default.
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<PAGE>
9.4. Certain Rights of the Agent. If the Agent shall request
---------------------------
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Transaction Document, the Agent shall be entitled to refrain from such act or
taking such action unless and until the Agent shall have received instructions
from the Required Banks; and the Agent shall not incur liability to any Person
by reason of so refraining. Without limiting the foregoing, no Bank or the
holder of any Note shall have any right of action whatsoever against the Agent
as a result of the Agent acting or refraining from acting hereunder or under any
other Transaction Document in accordance with the instructions of the Required
Banks.
9.5. Reliance. The Agent shall be entitled to rely, and shall be
--------
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Transaction
Document and its duties hereunder and thereunder, upon advice of counsel
selected by it.
9.6. Indemnification. To the extent the Agent is not reimbursed and
---------------
indemnified by the Borrower, and without limiting the Obligations of the
Borrower under the Transaction Documents to which it is a party, the Banks will
reimburse and indemnify the Agent, in proportion to their respective
Commitments, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties hereunder or under any
other Transaction Document, or in any way relating to or arising out of this
Agreement or any other Transaction Document; provided, however, that no Bank
-------- -------
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct.
9.7. The Agent in its Individual Capacity. With respect to its
------------------------------------
obligation to make Loans under this Agreement, the Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks," "Required Banks," "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with the
Borrower or any Affiliate of the Borrower as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Banks.
9.8. Holders. The Agent may deem and treat the payee of any Note as
-------
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such
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<PAGE>
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
9.9. Resignation by the Agent.
------------------------
(a) The Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Transaction Documents at any time by
giving 15 Business Days' prior written notice to the Borrower and the Banks.
Such resignation shall take effect upon the appointment of a successor Agent
pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Agent hereunder or thereunder who shall be a commercial bank or trust
company reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within
such 15 Business Day period, the Agent, with the consent of the Borrower, may
then appoint a successor Agent who shall serve as Agent hereunder or thereunder
until such time, if any, as the Banks appoint a successor Agent as provided
above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the twentieth Business Day after the date such notice of
resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Transaction Document until such time, if any,
as the Banks appoint a successor Agent as provided above.
9.10. Documentation Agent. The Documentation Agent shall have no
-------------------
right, power, obligation, liability, responsibility or duty under the
Transaction Documents other than those applicable to a Bank as such. Without
limiting the foregoing, the Documentation Agent, as such, shall not have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied on, and will not rely on, the Documentation Agent in deciding to enter
into this Agreement or in taking or not taking action hereunder or under any
other Transaction Document.
SECTION 10. MISCELLANEOUS.
-------------
10.1. Payment of Expenses, Indemnification, etc. The Borrower shall:
------------------------------------------
(a) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Agent
(including, without limitation, reasonable attorney's fees, provided that the
amount of such fees and expenses shall not exceed $20,000) in connection with
the preparation, execution and delivery of this Agreement and the other
Transaction Documents and the documents and instruments referred to herein and
therein;
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<PAGE>
(b) pay all out-of-pocket costs and expenses of the Agent, the
Collateral Agent and each Bank (including, without limitation, the reasonable
fees and disbursements of counsel to the Agent, the Collateral Agent or such
Bank) in connection with (i) any amendment, waiver or consent relating to any
Transaction Document and (ii) the enforcement of any Transaction Document and
the documents and instruments referred to herein and therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent and
for each of the Banks);
(c) (i) pay the audit fees incurred by the Agent (or any Person
retained by the Agent) in connection with periodic examinations of the books and
records of the Borrower and its Subsidiaries conducted at the request of the
Agent; and (ii) during the continuance of an Event of Default, pay the audit
fees incurred by any Bank (or any Person retained by any such Bank) in
connection with periodic examinations of the books and records of the Borrower
and its Subsidiaries conducted at the request of any Bank;
(d) pay and hold the Agent and the Collateral Agent harmless from
and against all filing and recording fees required to perfect the Liens granted
under the Security Documents;
(e) pay and hold the Agent, the Collateral Agent and each Bank
harmless from and against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save each of the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to the Agent, the
Collateral Agent or such Bank) to pay such taxes; and
(f) indemnify the Agent, the Collateral Agent and each Bank, its
officers, directors, employees, representatives and agents from and hold each of
them harmless against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and disbursements
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not the Agent, the Collateral Agent or any Bank is a party thereto) related
to the entering into and/or performance of this Agreement or any other
Transaction Document or the use of the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Transaction
Document, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such liabilities, obligations, losses, etc.,
to the extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified).
10.2. Right of Set-off. In addition to any rights now or hereafter
----------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, the Agent and each Bank
are hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or
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<PAGE>
owing by the Agent or such Bank (including, without limitation, by branches and
agencies of the Agent or such Bank wherever located) to or for the credit or the
account of the Borrower against and on account of the Obligations and
liabilities of the Borrower to the Agent or such Bank under this Agreement or
under any of the other Transaction Documents, including, without limitation, all
interests in Obligations purchased by such Bank pursuant to Section 10.7(b), and
all other claims of any nature or description arising out of or connected with
this Agreement or any other Transaction Document, irrespective of whether or not
the Agent or such Bank shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. Notwithstanding the foregoing provisions of this Section 10.2, if at
any time the Commitment Obligations and Loans are secured by real property, no
Bank shall exercise a right of setoff, banker's lien or counterclaim or take any
court or administrative action to enforce any provision of the Transaction
Documents if such action would constitute an "action" within the meaning of
Section 726 of the California Code of Civil Procedure without obtaining the
prior consent of the Required Banks, and any attempted exercise by any Bank of
any such action without first obtaining such consent shall be null and void. The
provisions of the preceding sentence are solely for the benefit of the Agent and
the Banks and the Borrower shall have no rights therein.
10.3. Notices. Except as otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including facsimile) and mailed, telecopied or delivered:
if to the Borrower, to:
Wireless Facilities, Inc.
9805 Scranton Road, Suite 100, San Diego, CA 92121
Attention: Thomas Munro,
Chief Financial Officer
Telephone: (858) 450-7315
Facsimile: (858) 824-2928,
if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule 2; and
if to the Agent, at its Notice Office;
or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as
to each other party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied or sent by overnight courier, be
effective when deposited in the mails, delivered to the overnight courier, as
the case may be, or sent by telecopier upon telephonic confirmation by the
sending party, except that notices and communications to the Agent shall not be
effective until received by the Agent.
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<PAGE>
10.4. Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and their respective successors
and assigns except that the Borrower may not assign its rights or obligations
hereunder without the prior consent of all of the Banks.
10.5. Assignments, Participations, Etc.
---------------------------------
(a) Any Bank may, with the written consent of the Borrower (at all
times other than during the existence of an Event of Default) and the Agent,
which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Persons (provided that no written consent of the
Borrower or the Agent shall be required in connection with any assignment and
delegation by a Bank to an Affiliate of such Bank or to another Bank) (each an
"Assignee") all, or any ratable part of all, of the Loans, the Commitment
- ---------
Obligations and the other rights and obligations of such Bank under the
Transaction Documents, in a minimum amount of $3,000,000; provided, however,
-------- -------
that the Borrower and the Agent may continue to deal solely and directly with
such Bank in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to
the Borrower and the Agent by such Bank and the Assignee; (ii) such Bank and its
Assignee shall have delivered to the Borrower and the Agent an Assignment and
Acceptance in the form of Exhibit I ("Assignment and Acceptance") and (iii) the
-------------------------
Assignee has paid to the Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations under the Transaction Documents have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Bank under this Agreement, and (ii) the assignor Bank shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Transaction Documents.
(c) Immediately upon each Assignee's making its processing fee
payment under Section 10.5(a), this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom and
the Agent shall deliver to the Borrower and each Bank revised Schedules 1 and 2
reflecting the reallocation of Commitments and address changes. The portion of
the Commitments allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Borrower (a "Participant") participating
-----------
interests in any Loans made by such Bank, the Commitment Obligations of such
Bank and the other interests of such Bank (the "Originator") hereunder and under
----------
the other Transaction Documents; provided, however,
-------- -------
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<PAGE>
that (i) the Originator's obligations under this Agreement shall remain
unchanged, (ii) the Originator shall remain solely responsible for the
performance of such obligations, (iii) the Borrower, the Collateral Agent and
the Agent shall continue to deal solely and directly with the Originator in
connection with the Originator's rights and obligations under the Transaction
Documents, and (iv) no Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in Section 10.12. In the case of any such participation, the
Participant shall be entitled to the benefit of Section 2.10, 2.11, 3.6 and 10.1
as though it were also a Bank hereunder, and if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank under
this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement in favor of any Federal Reserve
Bank in accordance with Regulation A of the Federal Reserve Board or U.S.
Treasury Regulation 31 CFR 203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law,
provided that payment made by a Borrower to or for the account of any Bank in
respect of a Loan made by such Bank to such Borrower shall satisfy such
Borrower's payment obligation in respect of such Loan to the extent of such
payment regardless of any encumbrance created pursuant to this Section 10.5(e).
10.6. No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of the Agent, the Collateral Agent or any Bank or the holder of any Note in
exercising any right, power or privilege hereunder or under any other
Transaction Document and no course of dealing between the Borrower, the
Collateral Agent, the Agent or any Bank or the holder of any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Transaction Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Transaction Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which the Agent, the Collateral
Agent or any Bank or the holder of any Note would otherwise have. No notice to
or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Agent, the Collateral Agent or any Bank or the
holder of any Note to any other or further action in any circumstances without
notice or demand.
10.7. Payments Pro Rata.
-----------------
(a) The Agent agrees that promptly after its receipt of each
payment from or on behalf of the Borrower in respect of any Obligations of the
Borrower hereunder, it shall
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<PAGE>
distribute such payment to the Banks pro rata based upon their respective
--- ----
shares, if any, of the Obligations with respect to which such payment was
received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Transaction Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans or any fee due hereunder, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total amount of such Obligation then owed and due to such Bank bears to the
total amount of such Obligation then owed and due to all the Banks immediately
prior to such receipt, then such Bank receiving such excess payment shall
purchase for cash without recourse or warranty from the other Banks an interest
in the Obligations of the Borrower to such Banks in such amount as shall result
in a proportional participation by all the Banks in such amount; provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
10.8. Calculations; Computations.
--------------------------
(a) The financial statements to be furnished to the Banks pursuant
hereto shall be made and prepared in accordance with GAAP consistently applied
throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Borrower to the Banks); provided, however,
-------- -------
that, except as otherwise specifically provided herein, all computations
determining compliance with Section 7 shall utilize accounting principles and
policies in conformity with those used to prepare the Financial Statements.
(b) All computations of interest and fees hereunder shall be made
on the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable.
10.9. Governing Law; Reference; Arbitration; Submission to
----------------------------------------------------
Jurisdiction; Venue; Waiver.
- ---------------------------
(a) THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
CALIFORNIA.
(b) Except with respect to claims or disputes relating to the
exercise of remedies by the Agent, the Collateral Agent or any Bank against the
Borrower or the Collateral, including (i) the foreclosure, sale or other
disposition of any of the Collateral, (ii) the collection or enforcement of the
Obligations, (iii) the exercise of self-help remedies, including the exercise of
any rights of setoff, or (iv) the obtaining of, or opposition to, provisional or
ancillary remedies before, during or after the pendency of any judicial
reference or arbitration proceeding contemplated in this Section 10.9 (any and
all of which may be initiated pursuant to applicable
-51-
<PAGE>
law), each controversy, dispute or claim between or among the parties arising
out of or relating to this Agreement or any of the other Transaction Documents
or the transactions related thereto, which controversy, dispute or claim is not
settled in writing within 30 days after the date on which a Person party to any
Transaction Document provides written notice to all other parties party thereto
that a controversy, dispute or claim exists thereunder (each such date, a "Claim
-----
Date") will be settled by a reference proceeding in California in accordance
- ----
with the provisions of Section 638 et seq. of the California Code of Civil
------
Procedure (the "CCP"), which shall constitute the exclusive remedy for the
---
settlement of any controversy, dispute or claim concerning this Agreement or any
of the other Transaction Documents or the transactions related thereto,
including whether such controversy, dispute or claim is subject to the reference
provisions set forth in this Section 10.9, and, except as set forth above, the
parties waive their rights to initiate any legal proceedings against each other
in any court or jurisdiction other than the Superior Court for the State of
California located in Los Angeles County, California (the "Superior Court"). The
--------------
referee shall be a retired judge of the Superior Court selected by mutual
agreement of the parties, and if they cannot so agree within 45 days after the
Claim Date, the referee shall be promptly selected by the Presiding Judge of the
Superior Court (or his representative). The referee shall be appointed to sit as
a temporary judge, with all of the powers of a temporary judge as authorized by
law, and upon selection should take and subscribe to the oath of office as
provided for in Rule 244 of the California Rules of Court. Each party shall have
one peremptory challenge pursuant to Section 170.6 of the CCP. The referee shall
(A) be requested to set the matter for hearing within 60 days after the Claim
Date and (B) try any and all issues of law or fact and report a statement of
decision upon them, if possible, within 90 days of the Claim Date. Any statement
of decision rendered by the referee shall be final, binding and conclusive on
the parties and judgment shall be entered pursuant to Section 644 of the CCP in
the Superior Court or any other court in the State of California having
jurisdiction. Any party may apply for a reference proceeding at any time after
30 days following notice to any other party of the nature of the controversy,
dispute or claim by filing a petition for a hearing or trial. All discovery
permitted by this Section 10.9 shall be completed no later than 15 days before
the first hearing date established by the referee. The referee may extend such
period in the event of a party's refusal to provide requested discovery for any
reason whatsoever, including legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by any
party upon seven days' written notice, and request for production or inspection
of documents shall be responded to within ten days after service. All disputes
relating to discovery that cannot be resolved by the parties shall be submitted
to the referee, whose decision shall be final, binding and conclusive on the
parties. Pending appointment of the referee as provided herein, the Superior
Court is empowered to issue temporary or provisional remedies, as appropriate.
(c) Except as expressly set forth in this Section 10.9, the referee
shall determine the manner in which the reference proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the
referee, except for trial, shall be conducted without a court reporter, except
that when any party so requests, a court reporter will be used at any hearing
conducted before the referee. The
-52-
<PAGE>
party making such a request shall have the obligation to arrange for and pay for
the court reporter. The costs of the court reporter at the trial shall be borne
equally by the parties.
(d) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the State
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, to provide temporary or
provisional remedies and to file a statement of decision that will be binding
upon the parties. The referee shall issue a single statement of decision at the
close of the reference proceeding, which shall dispose of all of the claims of
the parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest the statement of decision and to appeal from any
judgment or appealable order entered by the Superior Court or any other court
based on such statement of decision. The parties hereto expressly reserve the
right to findings of fact, conclusions of law, a written statement of decision,
and the right to move for a new trial or a different judgment, which new trial,
if granted, is also to be a reference proceeding subject to this Section 10.9.
(e) In the event that the enabling legislation that provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure described in this Section 10.9 will be resolved and determined by
arbitration. The arbitration will be conducted by a retired judge of the
Superior Court, in accordance with the California Arbitration Act, Sections 1280
through 1294.2 of the CCP. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
(f) THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE NOT SUBJECT TO THE
REFERENCE OR ARBITRATION PROCEDURES SET FORTH HEREIN, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG THE BORROWER, THE AGENT, THE COLLATERAL AGENT
AND THE BANKS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OF
THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. The scope
of this waiver is intended to be all encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including without limitation, contract claims, tort claims, breach
of duty claims, and all other common law and statutory claims. The Agent, the
Collateral Agent, the Banks and the Borrower each acknowledge that this waiver
is a material inducement to enter into a business relationship, that each has
already relied on the waiver in entering into this Agreement and the other
Transaction Documents, and that each will continue to rely on the waiver in
their related future dealings. The Agent, the Collateral Agent, the Banks and
the Borrower further warrant and represent that each has reviewed this waiver
with its legal counsel, and that each, knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING
-53-
<PAGE>
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER TRANSACTION DOCUMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
(g) To the extent not addressed by the preceding provisions of this
Section 10.9, any legal action or proceeding against the Borrower with respect
to this Agreement or any other Transaction Document may be brought in the courts
of the State of California or of the United States for the Central District of
California, and, by execution and delivery of this Agreement and the other
Transaction Documents, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Borrower irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth in Section 10.3, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right of
the Agent, the Collateral Agent any Bank or the holder of any Note to serve
process in any other manner permitted by law or, subject to the preceding
provisions of this Section 10.9, to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
(h) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Transaction Document brought in the courts referred to in clause (g) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
10.10. Obligation to Make Payments in Dollars. The obligation of the
--------------------------------------
Borrower to make payment in Dollars of the principal of and interest on the
Notes and any other amounts due hereunder or under any other Transaction
Document to the Payment Account of the Agent as provided in Section 3.5 shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any currency other than
Dollars, except to the extent such tender or recovery shall result in the actual
receipt by the Agent at its Payment Account on behalf of the Banks or holders of
the Notes of the full amount of Dollars expressed to be payable in respect of
the principal of and interest on the Notes and all other amounts due hereunder
or under any other Transaction Document. The obligation of the Borrower to make
payments in Dollars as aforesaid shall be enforceable as an alternative or
additional cause of action for the purpose of recovery in Dollars of the amount,
if any, by which such actual receipt shall fall short of the full amount of
Dollars expressed to be payable in respect of the principal of and interest on
the Notes and any other amounts due under any other Transaction Document, and
shall not be affected by judgment being obtained for any other sums due under
this Agreement or under any other Transaction Document.
10.11. Counterparts; Faxed Signature. This Agreement may be executed
-----------------------------
in any number of counterparts and by the different parties hereto on separate
counterparts, each of
-54-
<PAGE>
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent. This Agreement may be executed by facsimile signature and each such
signature shall be treated in all respects as having the same effect as an
original signature.
10.12. Amendment or Waiver. Neither this Agreement nor any other
-------------------
Transaction Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Required Banks and the Agent; provided, however, that
-------- -------
no such change, waiver, discharge or termination shall, without the consent of
each Bank, (i) extend any scheduled payment date or the final maturity of any
Loan or Note, or reduce the rate or extend the time of payment of interest or
fees thereon, or reduce the principal amount thereof, or increase the Commitment
of any Bank over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of any Commitment
Obligation of any Bank), (ii) release any Collateral under any Security Document
except as shall be otherwise provided in any Transaction Document, (iii) amend,
modify or waive any provision of this Section 10.12 or Section 9.6, 10.1, 10.2,
10.4, 10.7 or 10.8(b), (iv) reduce the percentage specified in the definition of
Required Banks or (v) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement.
10.13. Severability. In case any provision in or obligation under
------------
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.14. Survival. All indemnities set forth herein including, without
--------
limitation, in Sections 2.10, 2.11, 3.6, 9.6 and 10.1 shall survive the
execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans.
10.15. Domicile of Loans. Each Bank may transfer and carry its Loans
-----------------
at, to or for the account of any office, Subsidiary or Affiliate of such Bank.
10.16 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Borrower and each of the Banks shall
--------------
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent at its Notice Office or, in the case of the
Banks, shall have given to the Agent telephone (confirmed in writing), written
or telex notice (actually received) at such office that the same has been signed
and mailed to it. The Agent will give the Borrower and each Bank prompt written
notice of the occurrence of the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
-55-
<PAGE>
WIRELESS FACILITIES, INC.
By:
Name: _________________
Title: _________________
IMPERIAL BANK,
as Agent, Collateral Agent, Documentation
Agent, and a Bank
By:__________________________________________
Name: _________________
Title: _________________
-56-
<PAGE>
SCHEDULE 1
TO CREDIT AGREEMENT
COMMITMENTS
Name of Bank ----------- Commitment
- ------------ ----------
Imperial Bank $10,000,000
Total $10,000,000
<PAGE>
SCHEDULE 2
TO CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
--------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Bank Base Rate Lending Office LIBOR Lender Office
- ---- ------------------------ -------------------
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Imperial Bank Imperial Bank Imperial Bank
701 B Street, Suite 600 701 B Street, Suite 600
San Diego, CA 92101 San Diego, CA 92101
Attention: Michael Berrier Attention: Michael Berrier
Telephone: (619) 338-1512 Telephone: (619) 338-1512
Telecopier: (619) 234-2234 Telecopier: (619) 234-2234
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 3
TO CREDIT AGREEMENT
SECURITY DOCUMENTS
------------------
1. Security Agreement to be executed by the Borrower.
2. California UCC-1 Financing Statement to be executed by the
Borrower.
<PAGE>
SCHEDULE 4
TO CREDIT AGREEMENT
INVESTMENTS
-----------
[Included in Definition of Permitted Investments]
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Investment Balance at 6/30/99 Percentage Owned
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Hybrid Path Communications LLC $ 95,459 18% - 251 Shares
- --------------------------------------------------------------------------------------------------------------------
WFI de Mexico, S. de R.L. de C.V. Consolidated 88%
- --------------------------------------------------------------------------------------------------------------------
Wireless Facilities Latin America Ltda Consolidated 100%
- --------------------------------------------------------------------------------------------------------------------
Wireless Facilities, Inc./ENTEL Consolidated 100%
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 5
TO CREDIT AGREEMENT
SECURITIES CONVERTIBLE INTO OR
------------------------------
EXCHANGEABLE FOR CAPITAL STOCK
------------------------------
[Section 5.11]
<TABLE>
<CAPTION>
Stock Options held by Employees 5,192,997 options to purchase common
stock in total
- -------------------------------------------------------------------------------------------------------
<S> <C>
Scot Jarvis 450,000 Common
- -------------------------------------------------------------------------------------------------------
Scott Anderson 450,000 Common
- -------------------------------------------------------------------------------------------------------
Farzad Ghassemi 138,219 Common
- -------------------------------------------------------------------------------------------------------
Peter Ghassemi 102,162 Common
- -------------------------------------------------------------------------------------------------------
Daria Chaisson 2040 Common
- -------------------------------------------------------------------------------------------------------
Erroll Chaisson 1960 Common
- -------------------------------------------------------------------------------------------------------
Oak Investment Partners VIII, LP 4,067,847 Series A Preferred
2,279,090 Series B Preferred
- -------------------------------------------------------------------------------------------------------
Oak VIII Affiliates Fund, LP 78,786 Series A Preferred
44,141 Series B Preferred
- -------------------------------------------------------------------------------------------------------
Worldview Technology Partners, I, LP 488,622 Series A Preferred
273,761 Series B Preferred
- -------------------------------------------------------------------------------------------------------
Worldview International I, LP 190,443 Series A Preferred
106,700 Series B Preferred
- -------------------------------------------------------------------------------------------------------
Worldview Strategic Partners, I, LP 42,090 Series A Preferred
23,581 Series B Preferred
- -------------------------------------------------------------------------------------------------------
Fred Warren 120,192 Common
- -------------------------------------------------------------------------------------------------------
Stanford University 60,096 Common
- -------------------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE>
SCHEDULE 6
TO CREDIT AGREEMENT
INDEBTEDNESS
------------
[Section 5.12(a)]
(All Indebtedness of the Borrower)
Part A and Part B:
- -----------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------
Creditor 6/30/99 Balance
- ------------------------------------------------------------------------
<S> <C>
BCI $ 867,257.00
- ------------------------------------------------------------------------
Entel Shareholders:
- ------------------------------------------------------------------------
Gerald T. Vento 1,493,604.15
- ------------------------------------------------------------------------
John T. Vento 341,121.46
- ------------------------------------------------------------------------
Thomas H. Sullivan 485,254.57
- ------------------------------------------------------------------------
Media / Communications Partners II Ltd. 231,916.33
- ------------------------------------------------------------------------
Muhammad H. Khan 123,990.30
- ------------------------------------------------------------------------
Darlush Alipanah 161,053.09
- ------------------------------------------------------------------------
Margaret Ruggieri 161,053.09
- ------------------------------------------------------------------------
John McGrath 32,210.49
- ------------------------------------------------------------------------
Media Communications Investors Ltd. 9,662.73
- ------------------------------------------------------------------------
Union Bank ($3 Million line of credit) 0.00
- ------------------------------------------------------------------------
Wireless Facilities, Inc. Shareholders
- ------------------------------------------------------------------------
Masood Tayebi 2,605,263.16
- ------------------------------------------------------------------------
Massih Tayebi 2,315,789.47
- ------------------------------------------------------------------------
Sean Tayebi 578,947.37
- ------------------------------------------------------------------------
Willtel Financial Services (phone lease) 5,450.00
- ------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
SCHEDULE 7
TO CREDIT AGREEMENT
LIENS
-----
[Section 5.12(b)]
PART A
------
1. California UCC Financing Statements.
<TABLE>
<CAPTION>
Identification No.: Secured Party: Date Filed:
- ------------------ ------------- -----------
<S> <C> <C>
9811260359 Union Bank of California, N.A. 4/21/98
P. O. Box 30115
Los Angeles, CA 90030-0115
AT&T (Lucent Phone System Lease)
Konica Copier (Copier Lease)
[NAME OF CREDITOR] (Automotive Lease)
[NAME OF CREDITOR] (Automotive Lease)
PART B
------
1. California UCC Financing Statements.
Identification No.: Secured Party: Date Filed:
- ------------------ ------------- -----------
<S> <C> <C>
AT&T (Lucent Phone System
Konica Copier (Copier Lease)
[NAME OF CREDITOR] (Automotive Lease)
[NAME OF CREDITOR] (Automotive Lease)
</TABLE>
<PAGE>
SCHEDULE 8
TO CREDIT AGREEMENT
INSURANCE
---------
[Section 5.12(c)]
Attached Description of Insurance Coverage.
<PAGE>
SCHEDULE 9
TO CREDIT AGREEMENT
LEASED REAL
PROPERTY
--------
[Section 5.12 (d)]
ADDRESS LANDLORD
Address Landlord
- ------- --------
San Diego Tech Center [_______________]
9605 Scranton Road, Suite 102
San Diego, CA 92121
(858) 542-7900
GTE Government Systems [________________]
15000 Conference Center Drive
Chantilly, VA 20151-3808
Needleman Management Co. [_________________]
1060 N. Kings Highway, Suite 250
Cherry Hill, NJ 00034
Coles Hill [_________________]
432A Coles Road
Blackwood, NJ 08012
(609) 228-3761
DDS Rental Account [_________________]
125 Thunderbird Ct.
Novato, CA 94949
(415) 382-0714
<PAGE>
SCHEDULE 10
TO CREDIT AGREEMENT
SUBSIDIARIES
[Section 5.19]
Wireless Facilities, Inc./Entel, a Delaware corporation
WFI de Mexico, S. de R.L. de C.V., a Mexican corporation
Wireless Facilities Latin America, Ltda, a Brazilian commercial limited
liability company
<PAGE>
EXHIBIT A
---------
NOTICE OF BORROWING
[Date]
Imperial Bank, as Agent
for the Banks parties to
the Credit Agreement
referred to below
Imperial Bank
9920 S. La Cienega Blvd.
14/th/ Floor
Inglewood, CA 90301
Attention: Judy Varner
Ladies and Gentlemen:
The undersigned, Wireless Facilites, Inc., refers to the Credit
Agreement, dated as of August 17, 1999 (as amended from time to time, the
"Credit Agreement," the terms defined therein being used herein as therein
----------------
defined), among the undersigned, certain Banks parties thereto and you, as Agent
and Collateral Agent for such Banks, and hereby gives you notice, irrevocably,
pursuant to Section 2.3 of the Credit Agreement, that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
--------
Borrowing") as required by Section 2.3 of the Credit Agreement:
- ---------
(i) The Business Day of the Proposed Borrowing is [________],
[__].
(ii) The aggregate principal amount of the Proposed Borrowing is
$[_____________].
(iii) The Proposed Borrowing is to consist of [Base Rate Loans]
[LIBOR Loans].
/1/[(iv) The initial Interest Period for the Proposed Borrowing is
[___] months.]
___________________
/1/ To be included for a Proposed Borrowing of LIBOR Loans.
<PAGE>
[(iv)] [(v)] Following the Proposed Borrowing, the total number of
Borrowings of LIBOR Loans will be [___].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 6 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds thereof, as
though made on and as of such date (except to the extent that a
representation and warranty speaks specifically of an earlier date, in
which case such representation and warranty shall be true and correct as of
such earlier date);
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof; and
(C) the aggregate principal amount of Loans outstanding does not,
and the aggregate principal amount of Loans outstanding after giving effect
to the Proposed Borrowing will not, exceed the Borrowing Base.
WIRELESS FACILITIES, INC.
By_________________________________
Name:____________________________
Title:___________________________
cc: Imperial Bank
701 B Street, Suite 600
Attention: Mike Berrier
Imperial Bank
9920 S. La Cienega Boulevard
14/th/ Floor
Inglewood, CA 90301
Attention: F. Glen Harvey
Exhibit A Page 2
<PAGE>
EXHIBIT B
---------
NOTE
[__________] $________, California
[_________], 19[__]
FOR VALUE RECEIVED, WIRELESS FACILITIES, INC., a corporation organized
and existing under the laws of Delaware (the "Borrower"), hereby promises to pay
--------
to the order of [_______________________________] (the "Bank"), for the account
----
of its Applicable Lending Office (as defined in the Credit Agreement referred to
below), in lawful money of the United States of America in immediately available
funds, at the office of Imperial Bank (the "Agent") located at 9920 South La
-----
Cienega Blvd., 14/th/ Floor, Inglewood, CA 90301-4423 on the Loan Maturity Date
(as defined in the Credit Agreement) the principal sum of [___________] United
States dollars ($[______]) or, if less, the unpaid principal amount of all Loans
(as defined in the Credit Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount of each Loan in like money at said office from the date such Loan is made
until paid at the rates and at the times provided in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of August 17, 1999, among the Borrower, the Bank, the other financial
institutions party thereto and the Agent (as from time to time in effect, the
"Credit Agreement") and is entitled to the benefits thereof. This Note is
----------------
secured by the Security Documents (as defined in the Credit Agreement). As
provided in the Credit Agreement, this Note is subject to voluntary and
mandatory prepayment, in whole or in part, and Loans may be converted from one
Type (as defined in the Credit Agreement) into another Type to the extent
provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF CALIFORNIA.
WIRELESS FACILITIES, INC.
By______________________________
Name:_________________________
Title:________________________
<PAGE>
EXHIBIT C
---------
NOTICE OF CONVERSION
[Date]
Imperial Bank, as Agent
for the Banks parties to
the Credit Agreement
referred to below
Imperial Bank
9920 S. La Cienega Blvd.
14/th/ Floor
Inglewood, CA 90301
Attention: Judy Varner
Ladies and Gentlemen:
The undersigned, Wireless Facilities, Inc., refers to the Credit
Agreement, dated as of August 17, 1999 (as amended from time to time, the
"Credit Agreement," the terms defined therein being used herein as therein
----------------
defined), among the undersigned, certain Banks parties thereto and you, as Agent
and Collateral Agent for such Banks, and hereby gives you notice, irrevocably,
pursuant to Section 2.6 of the Credit Agreement, that the undersigned hereby
requests a conversion of Loans under the Credit Agreement, and in that
connection sets forth below the information relating to such conversion (the
"Proposed Conversion") as required by Section 2.6 of the Credit Agreement:
-------------------
(i) The Business Day of the Proposed Conversion is [________],
[__].
(ii) The aggregate principal amount of the Proposed Conversion is
$[_____________].
(iii) The Loans (or portions thereof) to be converted (the "Converted
---------
Loans") are [Base Rate] [LIBOR] Loans made pursuant to a Borrowing made on
-----
[__________], [____].
<PAGE>
(iv) Following the Proposed Conversion, the Converted Loans will be
[Base Rate] [LIBOR] Loans *[, and, if the Converted Loans are to be LIBOR
Loans, the initial Interest Period applicable thereto is [___] months.]
(v) Following the Proposed Conversion, the total number of
Borrowings of LIBOR Loans will be [___] and the aggregate principal amount
of each such Borrowing will equal or be greater than $[______].
The undersigned hereby certifies that no Default or Event of Default
has occurred and is continuing, or would result from the Proposed Conversion.
WIRELESS FACILITIES, INC.
By______________________________
Name:_________________________
Title:________________________
cc: Imperial Bank
701 B Street, Suite 600
San Diego, CA 92101
Attention: Mike Berrier
Imperial Bank
9920 S. La Cienega Blvd.
14/th/ Floor
Inglewood, CA 90301
Attention: F. Glen Harvey
___________________
* To be included if Base Rate Loans (or portions thereof) are being converted
to LIBOR Loans.
Exhibit C Page 2
<PAGE>
EXHIBIT D
---------
NOTICE OF CONTINUATION
[Date]
Imperial Bank, as Agent
for the Banks parties to
the Credit Agreement
referred to below
Imperial Bank
9920 S. La Cienega Blvd.
14/th/ Floor
Inglewood, CA 90301
Attention: Judy Varner
Ladies and Gentlemen:
The undersigned, Wireless Facilities, Inc., refers to the Credit
Agreement, dated as of August 17, 1999 (as amended from time to time, the
"Credit Agreement," the terms defined therein being used herein as therein
----------------
defined), among the undersigned, certain Banks parties thereto and you, as Agent
and Collateral Agent for such Banks, and hereby gives you notice, irrevocably,
pursuant to Section 2.6 of the Credit Agreement, that the undersigned hereby
requests a continuation of LIBOR Loans under the Credit Agreement, and in that
connection sets forth below the information relating to such continuation (the
"Proposed Continuation") as required by Section 2.6 of the Credit Agreement:
---------------------
(i) The Business Day of the Proposed Continuation is [________],
[__].
(ii) The aggregate principal amount of the Proposed Continuation is
$[_____________].
(iii) The LIBOR Loans (or portions thereof) to be continued as LIBOR
Loans (the "Continued Loans") were made pursuant to a Borrowing made on
---------------
[__________], [____].
(iv) The Interest Period for the Continued Loans is [___] months.
(iv) Following the Proposed Continuation, the total number of
Borrowings of LIBOR Loans will be [___] and the aggregate principal amount
of each such Borrowing will equal or be greater than $[______].
<PAGE>
The undersigned hereby certifies that no Default or Event of Default
has occurred and is continuing, or would result from the Proposed Continuation.
WIRELESS FACILITIES, INC.
By_____________________________
Name:________________________
Title:_______________________
cc: Imperial Bank
701 B Street, Suite 600
San Diego, CA 92101
Attention: Mike Berrier
Imperial Bank
9920 S. La Cienega Boulevard
14/th/ Floor
Inglewood, CA 90301
Attention: F. Glen Harvey
Exhibit D Page 2
<PAGE>
EXHIBIT E
---------
EXTENSION REQUEST
[Date]
Imperial Bank, as Agent
for the Banks parties to
the Credit Agreement
referred to below
Imperial Bank
701 B Street, Suite 600
San Diego, CA 92101
Attn.: Mike Berrier
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 17,
1999, among the undersigned, the Banks named therein, Imperial Bank, as Agent,
Collateral Agent and Documentation Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
----------------
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The undersigned hereby represents and warrants that no Event of
Default has occurred or is continuing.
This is an Extension Request pursuant to Section 2.12 of the Credit
Agreement requesting an extension of the Loan Maturity Date from [____________]
to [____________]. Please transmit a copy of this Extension Request to each of
the Banks.
WIRELESS FACILITIES, INC.
By______________________________
Name:_________________________
Title:________________________
cc: Imperial Bank
9920 S. La Cienega Blvd.
14/th/ Floor
Inglewood, CA 90301
Attention: F. Glen Harvey
<PAGE>
EXHIBIT F
---------
WIRELESS FACILITIES, INC.
-------------------------
OFFICER'S CERTIFICATE
I, the undersigned, [President] [Vice President], of WIRELESS
FACILITIES, INC. a corporation organized and existing under the laws of Delaware
(the "Borrower"), DO HEREBY CERTIFY that:
--------
1. This Certificate is furnished pursuant to Section 4.1(b) of the
Credit Agreement, dated as of August 17, 1999, among the Borrower, the
Banks party thereto and Imperial Bank, as Agent, Collateral Agent and
Documentation Agent (such Credit Agreement, as in effect on the date of
this Certificate, being herein called the "Credit Agreement"). Unless
----------------
otherwise defined herein capitalized terms used in this Certificate have
the meanings assigned to those terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly
qualified as and at all times since August 1, 1999 (to and including date
hereof) have been officers of the Borrower, holding the respective offices
below set opposite their names, and the signatures below set opposite their
names are their genuine signatures.
Name/1/ Office Signature
------- ------ ---------
[__________] [__________] [__________]
[__________] [__________] [__________]
3. Attached hereto as Exhibit A is a copy of the Articles of
Incorporation of the Borrower as filed in the Office of the Delaware
Secretary of State on [__________], together with all amendments thereto
adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
Bylaws of the Borrower as in effect on the date the resolutions described
in paragraph 5 below were adopted, together with all amendments thereto
adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Borrower by
unanimous written consent, which resolutions have not been revoked,
modified, amended or rescinded and are still in full
__________________
/1/ Include name, office and signature of each officer who will sign any Credit
Document, including the officer who will sign the certification at the end
of this certificate.
<PAGE>
force and effect. Except as attached hereto as Exhibit C, no resolutions
have been adopted by the Board of Directors of the Borrower which deal with
the execution, delivery or performance of any of the Credit Documents.
6. On the date hereof, the representations and warranties contained
in Section 5 of the Credit Agreement are true and correct, both before and
after giving effect to each Borrowing to be incurred on the date hereof and
the application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred
and is continuing or would result from the Borrowings to be incurred on the
date hereof or from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [____] day of
August, 1999.
WIRELESS FACILITIES, INC.
By_________________________________
Name:
Title:
Exhibit F Page 2
<PAGE>
WIRELESS FACILITIES, INC.
-------------------------
SECRETARY'S CERTIFICATE
I, the undersigned, Secretary of WIRELESS FACILITIES, INC., DO HEREBY
CERTIFY that:
1. [Insert name of Person making the above certifications] is the
duly elected and qualified [_________] of the Borrower and the signature on the
attached Officer's Certificate is [his][her] genuine signature.
2. The certifications made by [name] in items 2, 3, 4 and 5 on the
attached Officer's Certificate are true and correct.
3. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [____] day of
August, 1999.
WIRELESS FACILITIES, INC.
By__________________________
Name:_____________________
Title: Secretary
Exhibit F Page 3
<PAGE>
EXHIBIT G
---------
[SUBSIDIARY]
------------
OFFICER'S CERTIFICATE
I, the undersigned, [President] [Vice President], of [SUBSIDIARY NAME]
(the "Subsidiary"), DO HEREBY CERTIFY that:
----------
1. This Certificate is furnished pursuant to Section 4.1(b) of the
Credit Agreement, dated as of August 17, 1999, among WIRELESS FACILITIES,
INC. (the "Borrower,") the Banks party thereto and Imperial Bank, as Agent,
Collateral Agent and Documentation Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
------
Agreement"). Unless otherwise defined herein capitalized terms used in
---------
this Certificate have the meanings assigned to those terms in the Credit
Agreement.
2. The persons named below have been duly elected, have duly
qualified as and at all times since August 1, 1999 (to and including date
hereof) have been officers of the Subsidiary, holding the respective
offices below set opposite their names, and the signatures below set
opposite their names are their genuine signatures.
Name/1/ Office Signature
------- ------ ---------
[__________] [__________] [__________]
[__________] [__________] [__________]
3. Attached hereto as Exhibit A is a copy of the [documents
establishing] the Subsidiary as filed in the [jurisdiction of its
establishment] on [date], together with all amendments thereto adopted
through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
[Bylaws] of the Borrower as in effect on the date the resolutions described
in paragraph 5 below were adopted, together with all amendments thereto
adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Borrower by
unanimous written consent, which resolutions have not been revoked,
modified, amended or rescinded and are still in full
_____________________
/1/ Include name, office and signature of each officer who will sign any Credit
Document, including the officer who will sign the certification at the end
of this certificate.
<PAGE>
force and effect. Except as attached hereto as Exhibit C, no resolutions
have been adopted by the Board of Directors of the Borrower which deal with
the execution, delivery or performance of any of the Credit Documents.
6. On the date hereof, the representations and warranties contained
in Section 5 of the Credit Agreement are true and correct, both before and
after giving effect to each Borrowing to be incurred on the date hereof and
the application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred
and is continuing or would result from the Borrowings to be incurred on the
date hereof or from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [____] day of
August, 1999.
[SUBSIDIARY NAME]
By___________________________
Name:
Title:
Exhibit G Page 2
<PAGE>
[SUBSIDIARY NAME]
-----------------
SECRETARY'S CERTIFICATE
I, the undersigned, Secretary of [SUBSIDIARY NAME], DO HEREBY CERTIFY
that:
1. [Insert name of Person making the above certifications] is the
duly elected and qualified [_________] of the Subsidiary and the signature on
the attached Officer's Certificate is [his][her] genuine signature.
2. The certifications made by [name] in items 2, 3, 4 and 5 on the
attached Officer's Certificate are true and correct.
3. I know of no proceeding for the dissolution or liquidation of the
Subsidiary or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [____] day of
August, 1999.
[SUBSIDIARY NAME]
By______________________________
Name:_________________________
Title: Secretary
Exhibit G Page 3
<PAGE>
EXHIBIT H
---------
LANDLORD'S CONSENT
[Date]
[Landlord]
Gentleman/Ladies:
As you may be aware, Wireless Facilities, Inc. (the "Tenant") under
------
that certain [insert description of the Lease] (as amended, modified or
supplemented from time to time, the "Lease") of the premised commonly known as
-----
[__________], [__________], CA [______] (the "Premises"), has entered into that
--------
certain Credit Agreement, dated as of August 17, 1999 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), among the Tenant, the
----------------
banks described therein (the "Banks") and Imperial Bank in its capacity as agent
-----
(in such capacity, together with its successors, the "Agent") and collateral
agent (in such capacity, together with its successors, the "Collateral Agent")
on behalf the Banks].
To secure its obligations to the Agent, the Collateral Agent and the Banks under
the [Credit Agreement] [Guaranty], the Tenant has entered into a Security
Agreement, dated as of [__________], 1999 (as amended, modified or supplemented
from time to time, the "Security Agreement"), with the Collateral Agent,
pursuant to which the Tenant has granted the Collateral Agent a security
interest over certain collateral more particularly described therein, including,
without limitation, its contract rights (including its rights under the Lease),
its inventory and its equipment (collectively, the "Collateral").
In order to advance funds to the Tenant under the Credit Agreement,
the Collateral Agent needs the following assurances from you:
(1) You consent to the granting of the security interest in the Lease
to the Collateral Agent;
(2) You will send the Collateral Agent at its office located at 701 B
Street, Suite 600, San Diego, CA 92101, Attention: Mike Berrier (or such
other address as the Collateral Agent provides you in writing) a copy of
any notice of default under (or termination of) the Lease (each, a "Default
-------
Notice") and allow the Collateral Agent an additional period of time equal
------
to the grace period already permitted under the Lease in order to cure any
such default;
(3) You will permit the Collateral Agent to cure any default under
the Lease if the Tenant fails to do so, and, further, you will permit the
Collateral Agent to assume all
<PAGE>
of the Tenant's rights and obligations under the Lease, including, without
limitation, the right to enter and possess the leased premises and, subject
to the terms of the Lease, assign the Lease or sublet the leased premises
at some future date;
(4) You will apply any sums of money paid to you by the Collateral
Agent only to debts owing under the Lease as described in the Default
Notice, and not to set off such sums against other debts owed to you by the
Tenant; and
(5) You consent to the granting of a security interest in all of the
personal property of the Tenant located now or in the future on the
Premises (the "Personal Property"), including any part of the Personal
-------- --------
Property that is now or is hereafter located or installed on or affixed to
the Premises or that is or may be deemed to be "fixtures" within the
meaning of Section 9313(1)(a) of the California Commercial Code. You agree
that all of the Personal Property, whether or not affixed to or located or
installed on the Premises, constitutes and shall remain personal property
and shall not become installed or located on or affixed to the Premises or
any other real estate. You hereby expressly waive and disclaim to the
fullest extent allowed by applicable law all right, title and interest in
or to any and all of the Personal Property. You further agree that the
Collateral Agent or its representatives may enter upon the Premises for the
purpose of detaching, removing, repossessing and otherwise exercising any
or all of its or their rights or remedies with respect to the Personal
Property without interference by, or liability, accountability or
reimbursement to, you or any other person or entity claiming through or as
a successor to or on behalf of you.
If you are in agreement with the terms of this letter, we would
appreciate your signing the enclosed copies of this letter and returning one to
us and one to the Collateral Agent in the enclosed envelopes at your earliest
convenience.
Thank you for your assistance in this matter.
IMPERIAL BANK,
Secured Party
By:__________________________
Title:_______________________
Exhibit H Page 2
<PAGE>
AGREED TO AND ACCEPTED BY:
[LANDLORD]
By:______________________________
Title:___________________________
Date:____________
Exhibit H Page 3
<PAGE>
COLLATERAL DESCRIPTION
----------------------
(1) All Contracts of Debtor, (2) all Inventory of Debtor; (3) all Equipment of
Debtor; (4) all computer programs of the Debtor and all proprietary information
of the Debtor; (5) all other Goods, General Intangibles, Chattel Paper,
Documents, Instruments and Investment Property of Debtor; and (6) all Proceeds
and products of any and all of the foregoing.
Capitalized terms used in this Collateral Description shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"California UCC" shall mean the Uniform Commercial Code of the State of
California.
"Chattel Paper" shall mean, as of any date of determination, "chattel paper" as
such term is defined in the California UCC as in effect on such date.
"Contracts" shall mean all contracts and agreements between the Debtor and one
or more additional parties.
"Documents" shall mean, as of any date of determination, "documents" as such
term is defined in the California UCC as in effect on such date.
"Equipment" shall mean, as of any date of determination, "equipment" as such
term is defined in the California UCC as in effect on such date, now or
hereafter owned by Debtor and, in any event, shall include, but shall not be
limited to, all machinery, equipment, furnishings, fixtures and vehicles now or
hereafter owned by the Debtor and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto.
"General Intangibles" shall mean, as of any date of determination, "general
intangibles" as such term is defined in the California UCC as in effect on such
date.
"Goods" shall mean, as of any date of determination, "goods" as such term is
defined in the California UCC as in effect on such date.
"Instrument" shall mean, as of any date of determination, "instrument" as such
term is defined in the California UCC as in effect on such date.
"Inventory" shall mean, as of any date of determination, "inventory" as such
term is defined in the California UCC as in effect on such date, now or
hereafter owned by Debtor and, in any event, shall include, but shall not be
limited to, all raw materials, work-in-process, and finished inventory of the
Debtor of every type or description and all documents of title covering such
inventory.
"Investment Property" shall mean, as of any date of determination, "investment
property" as such term is defined in the California UCC as in effect on such
date.
Exhibit H Page 4
<PAGE>
"Proceeds" shall mean, as of any date of determination, "proceeds" as such term
is defined in the California UCC as in effect on such date.
Exhibit H Page 5
<PAGE>
EXHIBIT I
---------
COMPLIANCE CERTIFICATE
[Date]
Imperial Bank, as Agent
for the Banks parties to
the Credit Agreement
referred to below
Imperial Bank
9920 S. La Cienega Boulevard
14/th/ Floor
Inglewood, CA 90301
Attention: Carrie V. Paul
Ladies and Gentlemen:
I, the undersigned, Authorized Representative of Wireless Facilities,
Inc., a Delaware corporation (the "Borrower"), pursuant to Section 6.1(e) of the
--------
Credit Agreement, dated as of August 17, 1999, by and among the Borrower, the
Banks party thereto and Imperial Bank, as Agent and Collateral Agent (such
Credit Agreement, as in effect on the date of this Compliance Certificate, being
herein called the "Credit Agreement;" unless otherwise defined herein
----------------
capitalized terms used in this Compliance Certificate have the meanings assigned
to those terms in the Credit Agreement), have attached hereto the quarterly
financial statements of the Borrower for the Fiscal Quarter ended
[____________], [___] (the "Test Date"), and DO HEREBY CERTIFY that the Borrower
---------
[is] [is not] in compliance with the Financial Covenants according to the
following calculations:
/1/[A. Capital Expenditures:
--------------------
(1) Capital expenditures made
during Fiscal Year $[______]
(2) Excess (deficit) of $1,000,000 over (1) $[______]]
[A.][B.] Trading Ratio:
-------------
(1) Cash at Test Date $[______]
(2) Clause (ii) Permitted
Investments at Test Date $[______]
____________________
/1/ To be included if the Test Date is the last day of a Fiscal Year.
<PAGE>
<TABLE>
<S> <C> <C> <C>
(3) Inventory at Test Date $[______]
(4) Accounts at Test Date $[______]
(5) Total of (1) through (4) $[______]
(6) accounts payable at Test Date $[______]
(7) Amounts owed under Credit
Agreement at Test Date $[______]
(8) operational accruals at Test Date $[______]
(9) Total of (6) through (8) $[______]
(10) Actual Ratio ((5) to (9)) [______]:1.00
(11) Covenant Ratio 1.25:1.00
(12) (10) is [less] [greater] than (11)
[B.][C.] Net worth:
---------
(1) Net Worth at Test Date $[______]
(2) Subordinated Debt at Test Date $[______]
(3) Total of (1) and (2) $[______]
(4) Aggregate Net Income for each $[______]
fiscal quarter including the quarter
ending June 30, 1999 through Test Date/2/
(5) Net Proceeds of Capital Stock $[______]
issued during fiscal quarter ending
June 30, 1999 through Test Date
(6) Covenant Amount ($20,000,000 $[______]
plus 50% of (2) plus 75% of (3))
(7) Excess (deficit) of (1) over (4) $[______]
[C.][D.] Profitability:
-------------
(1) Net Income for quarter ended $[______]
on Test Date
</TABLE>
_______________________
/2/ Net Income for any fiscal quarter less than $0.00 shall be calculated as
$0.00.
Exhibit I Page 2
<PAGE>
<TABLE>
<S> <C> <C> <C>
(2) Covenant Amount $ 750,000.00
(3) (1) is [greater] [less] than (2)
----------------------------------------------------------------------------------
(4) Net Income for two quarters
ended on Test Date $[ ]
(5) (4) times 0.5 $[ ]
(6) Covenant Amount $ 1,000,000.00
(7) (5) is [greater] [less] than (6)
[D.][E.] Debt to Net Worth:
-----------------
(1) Indebtedness on Test Date $[______]
(2) Subordinated Debt on Test Date $[______]
(3) (1) minus (2) $[______]
(4) Net Worth on Test Date $[______]
(5) (4) plus (2) $[______]
(6) Actual Ratio ((3) to (5)) [____]:1
(7) Covenant Ratio 1.75:1
(8) (6) is [less] [greater] than (7)
[E.][F.] Working Capital:
---------------
(1) Working Capital on Test Date $[______]
(2) Covenant Amount $20,000,000.00
(3) (1) is [greater] [less] than (2)
</TABLE>
IN WITNESS WHEREOF, I have hereunto set my hand this [____] day of
[____________], [____].
WIRELESS FACILITIES, INC.
Exhibit I Page 3
<PAGE>
By___________________________________
Name:______________________________
Title:_____________________________
cc: Imperial Bank
701 B Street, Suite 600
San Diego, CA 92101
Attention: Mike Berrier
Exhibit I Page 4
<PAGE>
EXHIBIT J
---------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of August 17,
1999, by and among Wireless Facilities, Inc. (the "Borrower"), the Banks from
--------
time to time party thereto and Imperial Bank, as Agent for such Banks (such
Credit Agreement, as in effect on the date hereof and as it may be modified,
supplemented or amended from time to time, the "Credit Agreement"). Unless
----------------
otherwise defined herein, capitalized terms used herein and defined in the
Credit Agreement are used herein as so defined.
[_______________] ("Assignor") and [_______________] ("Assignee")
-------- --------
hereby make and enter into this assignment and acceptance agreement (this
"Assignment and Acceptance") as of [__________], [____].
- --------------------------
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement which represents the percentage interest specified in
Item 4 of Annex I (the "Assigned Share") of the Commitments and Loans under the
--------------
Credit Agreement. After giving effect to such sale and assignment, the
Assignee's Commitment and the outstanding principal balance of the Loans will be
as set forth in Item 4 of Annex I.
2. The Assignor (a) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Guarantor, the
Borrower or any of its Subsidiaries (the "Credit Parties") the performance or
--------------
observance by any Credit Party of its obligations under the Credit Documents to
which it is a party or any other instrument or document furnished pursuant
thereto.
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (b) agrees that it will, independently and without reliance upon the
Agent, the Collateral Agent, the Assignor or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents; (c) appoints and authorizes the Agent and the Collateral Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Documents as are delegated to the Agent and the Collateral Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
and (d) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Bank.
<PAGE>
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, an executed original hereof (together with all
attachments) will be delivered to the Agent. Unless a later date is specified in
Item 5 of Annex I hereto, this Assignment and Acceptance shall become effective
on the first date on which each of the following conditions is satisfied: (a)
this Assignment and Acceptance shall have been executed and delivered by the
Assignor and Assignee and a fully executed original shall have been delivered to
the Agent, (b) the consents described in 10.5(a) of the Credit Agreement shall
have been obtained, and (c) the Agent shall have received the $3,500 processing
and recordation fee referred to in Section 10.5(a) of the Credit Agreement (such
effective date or, so long as the conditions described above have been
satisfied, such later date as specified in Item 5 of Annex I hereto (the
"Settlement Date").
---------------
5. As of the Settlement Date, (a) the Assignee shall become a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance shall have the rights and obligations of a Bank thereunder and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights (other than any indemnities) and be released from its
obligations under the Credit Documents.
6. It is agreed that the Assignee shall be entitled to all interest
on the Assigned Share of the Loans at the rates specified in Item 6 of Annex I
which accrue on and after the Settlement Date, such interest to be paid by the
Agent directly to the Assignee. It is further agreed that all payments and
prepayments of principal made on the Assigned Share of the Loans which occur on
and after the Settlement Date will be paid directly by the Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor an
amount specified by the Assignor in writing which represents the Assigned Share
of the principal amount of the Loans which are outstanding on the Settlement
Date and which are being assigned hereunder. The Assignor and the Assignee shall
make all appropriate adjustments in payments under the Credit Agreement for
periods prior to the Settlement Date directly between themselves on the
Settlement Date .
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
Exhibit K Page 2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[ASSIGNOR], as Assignor
By_________________________________
Name:____________________________
Title:___________________________
[ASSIGNEE], as Assignee
By_________________________________
Name:____________________________
Title:___________________________
Exhibit K Page 3
<PAGE>
Acknowledged and Agreed this
[____] day of [__________], [____]
IMPERIAL BANK, as Agent
By_____________________________________
Name:________________________________
Title:_______________________________
*[WIRELESS FACILITIES, INC.]
By_____________________________________
Name:________________________________
Title:_______________________________
_________________________
* To be included unless an Event of Default has occurred and is continuing.
Exhibit K Page 4
<PAGE>
ANNEX I TO ASSIGNMENT AND ACCEPTANCE
------------------------------------
1. Borrower: Wireless Facilities, Inc.
--------
2. Name and Date of Credit Agreement:
---------------------------------
Credit Agreement, dated as of August 17, 1999, by and among Wireless
Facilities, Inc., the Banks from time to time party thereto, and
Imperial Bank, as Agent and Collateral for such Banks.
<TABLE>
<S> <C>
3. Date of Assignment and Acceptance: [__________], [____].
---------------------------------
4. Amounts (as of date of item #3 above):
-------
A. Total Commitment $[______]
B. Assigned Share of Total
Commitment [____]%
C. Amount of Assigned Share of
Total Commitment $[______]
D. Aggregate Amount of
Loans Outstanding $[______]
E. Assigned Share of Loans [____]%
F. Amount of Assigned Share of Loans $[______]
5. Settlement Date: [__________], [____]
---------------
6. Rate(s) of Interest to the Assignee:
-----------------------------------
[As set forth in the Credit Agreement]
7. Assignee Notice Information:
---------------------------
[____________________]
[____________________]
[____________________]
Attention: [____________________]
Telephone: [__________]
Telecopier: [__________]
Reference:[__________]
</TABLE>
Exhibit K Page 5
<PAGE>
8. Assignee Payment Instructions:
-----------------------------
Base Rate Lending Office:
[____________________]
[____________________]
ABA # [__________]
Account Name: [____________________]
Account # [__________]
Reference: [____________________]
LIBOR Lending Office:
[____________________]
[____________________]
ABA # [__________]
Account Name: [____________________]
Account # [__________]
Reference: [____________________]
Exhibit K Page 6
<PAGE>
EXHIBIT K
---------
DOMESTIC SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of August 17, 1999 (as modified, amended
or supplemented from time to time, this "Guaranty"), made by [__________], a
[__________] corporation (the "Guarantor"). Except as otherwise defined herein,
terms used herein and defined in the Credit Agreement (as hereinafter defined)
shall be used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Wireless Facilities, Inc., a Delaware corporation (the
"Borrower"), the Banks and Imperial Bank, as agent (the "Agent") and collateral
agent (the "Collateral Agent"), have entered into a Credit Agreement, dated as
of August 17, 1999 (as modified, supplemented or amended from time to time, the
"Credit Agreement"), providing for the making of Loans as contemplated therein;
WHEREAS, the Guarantor is a Wholly-Owned Subsidiary of the Borrower;
WHEREAS, it is a condition to the making of Loans under the Credit
Agreement that the Guarantor shall have executed and delivered this Guaranty;
and
WHEREAS, the Guarantor will obtain benefits as a result of the Loans
made to the Borrower under the Credit Agreement and, accordingly, desires to
execute and deliver this Guaranty in order to satisfy the condition described in
the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby makes the following representations and
warranties to the Banks and hereby covenants and agrees with the Agent, the
Collateral Agent and each Bank as follows:
1. The Guarantor irrevocably and unconditionally guarantees the full
and prompt payment when due (whether by acceleration or otherwise) of the
principal of and interest on any Note issued under the Credit Agreement and of
all other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement or any other Credit Document and the due performance and compliance
with the terms of the Credit Documents by the Borrower (all such principal,
interest, obligations and liabilities, collectively, the "Guaranteed
Obligations"). All payments by the Guarantor under this Guaranty shall be made
on the same basis as payments by the Borrower under Sections 3.4 and 3.5 of the
Credit Agreement.
2. The Guarantor hereby waives, to the fullest extent permitted by
law:
(a) notice of acceptance of this Guaranty and notice of any liability
to which it may apply;
<PAGE>
(b) presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liability, suit or taking of other action by the
Agent, the Collateral Agent or any Bank against, and any other notice to,
any party liable thereon (including such Guarantor or any other guarantor);
(c) all rights and benefits that the Guarantor may have, now or at any
time hereafter under, and any defense, right of setoff, claim or
counterclaim whatsoever (other than payment and performance in full of all
of the Guaranteed Obligations) arising under, California Civil Code
Sections 2809, 2810, 2815, 2819, 2820, 2821, 2839, 2845, 2847, 2848, 2849,
2850 and 2855, and California Code of Civil Procedure Sections 580a, 580b,
580d and 726, and all successor sections; and
(d) all rights to require the Agent, the Collateral Agent or any Bank
to marshal assets or to pursue any other remedy in the Agent's, the
Collateral Agent's or any Bank's power.
3. The Agent, the Collateral Agent and any Bank may at any time and
from time to time without the consent of, or notice to the Guarantor, without
incurring responsibility to the Guarantor and without impairing or releasing the
obligations of the Guarantor hereunder, upon or without any terms or conditions
and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Banks and the Guarantor;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Agent, the Collateral Agent
or the Banks regardless of what liabilities or liabilities of the Borrower
remain unpaid;
Exhibit K Page 2
<PAGE>
(f) consent to or waive any breach of, or any act, omission or default
under, any of the Credit Documents, or otherwise amend, modify or
supplement any of the Credit Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to in this Guaranty
which may deprive the Guarantor of its right to subrogation against the
Borrower to recover full indemnity for any payments made pursuant to this
Guaranty.
4. The obligations of the Guarantor under this Guaranty are absolute
and unconditional and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or otherwise
affected by, any circumstance or occurrence whatsoever, including, without
limitation: (a) any action or inaction by the Agent, the Collateral Agent or
any Bank as contemplated in Section 3 of this Guaranty; or (b) any invalidity,
irregularity or unenforceability of all or part of the Guaranteed Obligations or
of any security therefor. This Guaranty is a primary obligation of the
Guarantor.
5. If and to the extent that the Guarantor makes any payment to the
Agent, the Collateral Agent, any Bank or to any other Person pursuant to or in
respect of this Guaranty, any claim which the Guarantor may have against the
Borrower by reason thereof shall be subject and subordinate to the prior payment
in full of the Guaranteed Obligations.
6. In order to induce the Banks to make the Loans pursuant to the
Credit Agreement, the Guarantor makes the following representations, warranties
and agreements:
(a) The Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the power and authority to own its property and
assets and to transact the business in which it is engaged and (iii) is
duly qualified as a foreign corporation and in good standing in each
jurisdiction where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. The Guarantor has no
Subsidiaries.
(b) The Guarantor has the corporate power to execute, deliver and
perform the terms and provisions of each of the Credit Documents to which
it is party and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of each of such Credit Documents.
The Guarantor has duly executed and delivered each of the Credit Documents
to which it is party, and each of such Credit Documents constitutes or, in
the case of each such other Credit Document when executed and delivered,
will constitute, its legal, valid and binding obligation enforceable in
accordance with its terms.
(c) Neither the execution, delivery or performance by the Guarantor of
the Credit Documents to which it is a party, nor compliance by it with the
terms and provisions thereof, (a) will contravene any provision of any law,
statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (b) will conflict or be inconsistent
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
Exhibit K Page 3
<PAGE>
imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the property or assets of
the Guarantor pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other material agreement,
contract or instrument to which the Guarantor is a party or by which it or
any of its property or assets is bound or to which it may be subject or (c)
will violate any provision of the articles of incorporation or bylaws of
the Guarantor.
(d) To the best knowledge of Guarantor, no order, consent, approval,
license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior to the
Closing Date), or exemption by, any governmental or public body or
authority, or any subdivision thereof, or any other Person is required to
authorize, or is required in connection with, (a) the execution, delivery
and performance of any Credit Document to which the Guarantor is a party or
(b) the legality, validity, binding effect or enforceability of any such
Credit Document.
(e) There are no actions, suits or proceedings pending or, to the best
knowledge of the Guarantor, threatened (i) with respect to any Credit
Document or (ii) that could reasonably be expected to have a Material
Adverse Effect.
(f) All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of the Guarantor in writing to
any Bank (including, without limitation, all information contained herein)
for purposes of or in connection with this Guaranty or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Guarantor in writing to
any Bank will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information
(taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided.
(g) The Guarantor has filed all tax returns required to be filed by it
and has paid all income taxes payable by it which have become due pursuant
to such tax returns and all other taxes and assessments payable by it which
have become due, other than those not yet delinquent and except for those
contested in good faith and for which adequate reserves have been
established in accordance with GAAP and those for which the failure to do
so would cause a Material Adverse Effect. The Guarantor has paid, or has
provided adequate reserves (in the good faith judgment of the management of
the Guarantor) for the payment of, all federal and state income taxes
applicable for all prior fiscal years and for the current fiscal year to
the date hereof.
(h) Each Plan is in substantial compliance with ERISA and the Code; no
Reportable Event has occurred with respect to a Plan; no Plan is insolvent
or in reorganization; no Plan has an Unfunded Current Liability, and no
Plan has an accumulated or waived funding deficiency, has permitted
decreases in its funding standard account or has applied for an extension
of any amortization period within the meaning of Section 412 of the Code;
none of the Guarantor or any ERISA Affiliate has
Exhibit K Page 4
<PAGE>
incurred any material liability to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or expects to incur any liability under any of the foregoing sections
with respect to any such Plan; no proceedings have been instituted to
terminate any Plan; no condition exists which presents a material risk to
the Guarantor or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the
Code; no Lien imposed under the Code or ERISA on the assets of the
Guarantor or any ERISA Affiliate exists or is likely to arise on account of
any Plan; and the Guarantor may terminate contributions to any other
employee benefit plans maintained by it without incurring any material
liability to any Person interested therein.
(i) As of the date hereof, the authorized capital stock of the
Guarantor consists of [______] common shares, with [_______] shares
currently issued and outstanding, all of which are registered in the name
of the Borrower. All such outstanding shares have been duly and validly
issued, are fully paid and non-assessable. The Guarantor does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
(j) To the best knowledge of the Guarantor, the Guarantor is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(k) To the best knowledge of the Guarantor, the Guarantor is not
engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no significant unfair labor
practice complaint pending against the Guarantor or, to the best knowledge
of the Guarantor, threatened against it, before the National Labor
Relations Board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is
so pending against the Guarantor or, to the best knowledge of the
Guarantor, threatened against it, (ii) no significant strike, labor
dispute, slowdown or stoppage pending against the Guarantor or, to the best
knowledge of the Guarantor, threatened against it and (iii) to the best
knowledge of the Guarantor, no union representation question existing with
respect to the employees of the Guarantor and, to the best knowledge of the
Guarantor, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii above, either
individually or in the aggregate) could not reasonably be expected to have
a Material Adverse Effect.
(l) To the best knowledge of the Guarantor, the Guarantor owns all
the patents, trademarks, permits, service marks, trade names, copyrights,
licenses, franchises
Exhibit K Page 5
<PAGE>
and formulas, or rights with respect to the foregoing, and has obtained
assignments of all leases and other rights of whatever nature, necessary
for the present conduct of its business, without any known conflict with
the rights of others which, or the failure to obtain which, as the case may
be, could not reasonably be expected to have a Material Adverse Effect.
(m) On the basis of a comprehensive review and assessment of the
Guarantor's systems and equipment, the Guarantor reasonably believes that
the Year 2000 Problem, including the costs of remediation thereof, will
not, as it relates to the Guarantor, result in a Material Adverse Effect.
The Guarantor is making inquiries of its material suppliers, vendors and
customers to assess whether they are taking appropriate steps to address
the Year 2000 Problem. The Guarantor is developing a contingency plan to
ensure uninterrupted and unimpaired business operation in the event of
failure of its own or a third party's systems and/or equipment due to the
Year 2000 Problem, including those of vendors, customers and suppliers, as
well as a general failure of or interruption in its communications and
delivery infrastructure.
(n) The Guarantor is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(o) The Guarantor is not a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7. The Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Commitments and the repayment in full of
the Loans and Notes, together with interest, fees and all other Obligations
incurred under the Credit Documents:
(a) Promptly, and in any event within four Business Days after an
officer of the Guarantor obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or Event of Default,
(ii) any litigation or governmental proceeding pending against the
Guarantor which could reasonably be expected to have a Material Adverse
Effect.
(b) Promptly, upon the request of the Agent, a copy of the Guarantor's
plan, timetable and budget to address Year 2000 Problems, together with
periodic updates thereof and expenses incurred to date, any third party
assessment of the Guarantor's Year 2000 remediation efforts, any Year 2000
contingency plans and any estimates of the Guarantors' potential litigation
exposure (if any) to the Year 2000 Problem.
(c) Promptly, copies of all financial information, proxy materials and
other information and reports, if any, which the Guarantor shall file with
the SEC.
(d) From time to time, such other information or documents (financial
or otherwise) as any Bank may reasonably request.
Exhibit K Page 6
<PAGE>
(e) The Guarantor will keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in
relation to its business and activities. The Guarantor will permit
officers and designated representatives of the Agent or any Bank to visit
and inspect, under guidance of officers of the Guarantor, any of the
properties of the Guarantor, and to examine the books of record and account
of the Guarantor and its Subsidiaries and discuss the affairs, finances and
accounts of the Guarantor with, and be advised as to the same by, its
officers, all at such reasonable times and intervals and to such reasonable
extent as the Agent or such Bank may request.
(f) The Guarantor will (a) keep all property useful and necessary in
its business in good working order and condition, ordinary wear and tear
excepted, (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and
against at least such risks as are described in Schedule 8 of the Credit
Agreement, and (c) furnish to each Bank, upon written request, full
information as to the insurance carried. The provisions of this Subsection
shall be deemed to be supplemental to, but not duplicative of, the
provisions of any of the security documents that require the maintenance of
insurance. The Guarantor shall ensure that each insurance policy
maintained by the Guarantor names the Collateral Agent as loss payee and
the Agent, the Collateral Agent and the Banks as additional insureds.
(g) The Guarantor will do all things necessary to preserve and keep in
full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Subsection
-------- -------
shall prevent the withdrawal by the Guarantor of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a Material Adverse Effect.
(h) The Guarantor will comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards
and controls), except such noncompliances as could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(i) As soon as possible and, in any event, within 10 days after the
Guarantor or any ERISA Affiliate knows or has reason to know any of the
following, the Guarantor will deliver to each of the Banks a certificate of
an Authorized Representative setting forth details as to such occurrence
and such action, if any, which the Guarantor or such ERISA Affiliate is
required or proposes to take, together with any notices required or
proposed to be given to or filed with or by the Guarantor, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan Administrator with
respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application may be or has been
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a Plan has been or may be terminated, reorganized,
partitioned or declared
Exhibit K Page 7
<PAGE>
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability giving rise to a Lien under ERISA; that proceedings may be or
have been instituted to terminate a Plan; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; or that the Guarantor or any ERISA Affiliate will
or may incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4201 or 4204 of ERISA or with respect to a
Plan under Section 4971 or 4975 of the Code or Section 409 or 502(i) or
502(l) of ERISA.
(j) The Guarantor shall cause (i) each of its fiscal years to end on
December 31 and (ii) each of its fiscal quarters to end on March 31, June
30, September 30 and December 31.
(k) The Guarantor will perform all its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by
which it is bound, except such non-performances as could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The Guarantor shall complete or accomplish the following:
(i) By December 31, 1999, make a detailed inquiry of material
suppliers, vendors and customers of the Guarantor to ascertain whether
such Persons are aware of the need to address the Year 2000 Problem
and whether they are taking appropriate steps to do so; and
(ii) By December 31, 1999, complete the renovation, installation
and testing of all systems and equipment of the Guarantor that are
affected by the Year 2000 Problem to cause them to perform correctly
date-sensitive functions for the relevant date data from before and
after December 31, 1999.
(m) Except as provided in the Credit Agreement, the Guarantor will
not create, incur, assume or suffer to exist any Lien upon or with respect
to any of its property or assets (real or personal, tangible or
intangible), whether now owned or hereafter acquired.
(n) The Guarantor will not wind up, liquidate or dissolve its affairs
or enter into any transaction of merger or consolidation, or convey, sell,
lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or
otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of
Inventory, materials and Equipment in the ordinary course of business) of
any Person, except that (i) the Guarantor may make sales of Inventory in
the ordinary course of its business, (ii) subject to Section 3.2 of the
Credit Agreement, the Guarantor may, in the ordinary course of business,
sell Equipment which is uneconomic or obsolete or (iii) capital
expenditures shall be permitted to the extent not in violation of Section
7.8 of the Credit Agreement.
Exhibit K Page 8
<PAGE>
(o) The Guarantor will not declare or pay any dividends, or return any
capital, to its stockholders or authorize or make any other distribution,
payment or delivery of property or cash to its stockholders as such, or
redeem, retire, purchase or otherwise acquire, directly or indirectly, for
a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any options or warrants issued by the Guarantor
with respect to its capital stock), or set aside any funds for any of the
foregoing purposes, or purchase or otherwise acquire for a consideration
any shares of any class of its capital stock now or hereafter outstanding
(or any options or warrants issued by the Guarantor with respect to its
capital stock), except that the Guarantor may pay dividends or make
distributions to the Borrower.
(p) Except as provided in the Credit Agreement, the Guarantor will not
contract, create, incur, assume or suffer to exist any Indebtedness.
(q) Except as provided in the Credit Agreement, the Guarantor will not
lend money or credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make
any capital contribution to, any other Person.
(r) The Guarantor will not enter into any transaction or series of
related transactions, whether or not in the ordinary course of business,
with any Affiliate of the Guarantor, other than on terms and conditions
substantially as favorable to the Guarantor as would be obtainable by the
Guarantor at the time in a comparable arm's-length transaction with a
Person other than an Affiliate.
(s) Except as provided in the Credit Agreement, the Guarantor will not
make any expenditure for fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with GAAP and including capitalized lease
obligations).
(t) The Guarantor will not (i) make any voluntary or optional payment
or prepayment on or redemption or acquisition for value of (including,
without limitation, by way of depositing with the trustee with respect
thereto money or securities before due for the purpose of paying when due)
any Permitted Indebtedness or (ii) amend or modify, or permit the amendment
or modification of, any material provision of any Permitted Indebtedness or
of any agreement (including, without limitation, any purchase agreement,
indenture, loan agreement or security agreement) relating to any of the
foregoing or (iii) amend, modify or change its articles of incorporation
(including, without limitation, by the filing or modification of any
certificate of designation) or bylaws, or any agreement entered into by it,
with respect to its capital stock, or enter into any new agreement with
respect to its capital stock.
(u) The Guarantor will not, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on its ability to (i) pay dividends or make any other
distributions on its capital stock or any other interest or participation
in its profits owned by the Borrower, or pay any Indebtedness owed to the
Exhibit K Page 9
<PAGE>
Borrower or another Subsidiary of the Borrower, (ii) make loans or advances
to the Borrower or (c) transfer any of its properties or assets to the
Borrower, except for such encumbrances or restrictions existing under or by
reasons of (x) applicable law, (y) this Guaranty and (z) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Guarantor.
(v) The Guarantor shall not issue any capital stock (including by way
of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, capital stock, except for (i) transfers and
replacements of then outstanding shares of capital stock and (ii) stock
splits, stock dividends and similar issuances which do not decrease the
percentage ownership of the Borrower in any class of the capital stock of
the Guarantor.
(w) The Guarantor will not engage (directly or indirectly) in any
business other than the business in which it is engaged on the date hereof
or any business incidental thereto.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Agent, the Collateral Agent or any Bank in exercising any right, power or
privilege hereunder and no course of dealing between the Guarantor, the Agent,
the Collateral Agent or any Bank or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights, powers and
remedies herein expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Agent, the Collateral Agent or any Bank or
the holder of any Note would otherwise have. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agent, the Collateral Agent or any Bank or the holder of any Note to any
other or further action in any circumstances without notice or demand.
9. This Guaranty shall be binding upon the Guarantor and its heirs,
personal representatives, successors and assigns.
10. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except as provided in Section 10.12 of the
Credit Agreement.
11. The Guarantor acknowledges that he has received an executed (or
conformed) copy of the Credit Agreement and is familiar with the contents
thereof. The Guarantor represents and warrants that he is fully aware of the
financial condition of the Borrower, and the Guarantor delivers this Guaranty
based solely upon its own independent investigation of the Borrower's financial
condition and in no part upon any representation or statement of the Agent, the
Collateral Agent or any Bank with respect thereto. The Guarantor further
represents and warrants that it is in a position to and hereby does assume full
responsibility for obtaining such additional information concerning the
Borrower's financial condition as the Guarantor may deem material to
Exhibit K Page 10
<PAGE>
the Guaranteed Obligations, and the Guarantor is not relying upon or expecting
the Agent, the Collateral Agent or any Bank to furnish it any information in its
possession concerning the Borrower's financial condition or concerning any
circumstances bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Guaranteed Obligations. The Guarantor hereby waives any
duty on the part of each of the Agent, the Collateral Agent or any Bank to
disclose to the Guarantor any facts it may now or hereafter know about the
Borrower, regardless of whether any such Person has reason to believe that any
such facts materially increase the risk beyond that which the Guarantor intends
to assume, or has reason to believe that such facts are unknown to the
Guarantor. The Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of continuing guaranty which includes, without
limitation, the possibility that the Borrower will contract for additional
indebtedness for which the Guarantor may be liable hereunder after the
Borrower's financial condition or ability to pay its lawful debts when they fall
due has deteriorated.
12. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default each Bank is hereby authorized at any
time or from time to time, without presentment, demand, protest, or other notice
of any kind to the Guarantor or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) up to, but not exceeding, $10,000,000 in the
aggregate and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of the Guarantor against and on
account of the obligations of the Guarantor to such Bank under this Guaranty,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said obligations, or any of them, shall be contingent or unmatured.
13. All notices and other communications provided for hereunder shall
be in writing (including facsimile) and mailed, telecopied or delivered:
if to the Guarantor, to:
[Name of Guarantor]
c/o Wireless Facilities, Inc.
9805 Scranton Road, Suite 100
San Diego, CA 92121
Attention: Mr. Thomas Munro
Telephone: (858) 450-7315
Facsimile: (858) 824-2928
if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule 2 to the Credit Agreement; and
if to the Agent, at its Notice Office;
or, as to the Guarantor or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as
to each other party, at such other address as shall be designated by such party
in a written notice to the Guarantor and the Agent. All such
Exhibit K Page 11
<PAGE>
notices and communications shall, when mailed, telecopied or sent by overnight
courier, be effective when deposited in the mails, delivered to the overnight
courier, as the case may be, or sent by telecopier, except that notices and
communications to the Agent shall not be effective until received by the Agent.
14. If claim is ever made upon the Agent, any Bank or the holder of
any Note for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and any of the aforesaid
payees repays all or part of said amount by reason of (a) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee
or any of its property or (b) any settlement or compromise of any such claim
effected by such payee with any such claimant (including the Borrower), then and
in such event the Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it, notwithstanding any
revocation hereof or the cancellation of any Note or other instrument evidencing
any liability of the Borrower, and the Guarantor shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
15. Any acknowledgment or new promise, whether by payment or
principal or interest or otherwise and whether by the Borrower or others
(including the Guarantor), with respect to any of the Guaranteed Obligations
shall, if the statute of limitations in favor of the Guarantor against the
Agent, the Collateral Agent, any Bank or the holder of any Note shall have
commenced to run, toll the running of such statute of limitations, and if the
period of such statute of limitations shall have expired, prevent the operation
of such statute of limitations.
16. (a) THIS GUARANTY AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF CALIFORNIA.
(b) Except with respect to claims or disputes relating to the
exercise of remedies by the Agent, the Collateral Agent or any Bank against the
Guarantor or the Collateral, including (i) the foreclosure, sale or other
disposition of any of the Collateral, (ii) the collection or enforcement of the
Guaranteed Obligations, (iii) the exercise of self-help remedies, including the
exercise of any rights of setoff, or (iv) the obtaining of, or opposition to,
provisional or ancillary remedies before, during or after the pendency of any
judicial reference or arbitration proceeding contemplated in this Section 16
(any and all of which may be initiated pursuant to applicable law), each
controversy, dispute or claim between or among the parties arising out of or
relating to this Guaranty or any of the other Credit Documents or the
transactions related thereto, which controversy, dispute or claim is not settled
in writing within 30 days after the date on which a Person party to any Credit
Document provides written notice to all other parties party thereto that a
controversy, dispute or claim exists thereunder (each such date, a "Claim Date")
will be settled by a reference proceeding in California in accordance with the
provisions of Section 638 et seq. of the California Code of Civil Procedure (the
------
"CCP"), which shall constitute the exclusive remedy for the settlement of any
controversy, dispute or claim concerning this Guaranty or any of the other
Credit Documents or the transactions related thereto, including whether such
controversy, dispute or claim is subject to the reference provisions set forth
in this
Exhibit K Page 12
<PAGE>
Section 16, and, except as set forth above, the parties waive their rights to
initiate any legal proceedings against each other in any court or jurisdiction
other than the Superior Court for the State of California located in Los Angeles
County, California (the "Superior Court"). The referee shall be a retired Judge
of the Superior Court selected by mutual agreement of the parties, and if they
cannot so agree within 45 days after the Claim Date, the referee shall be
promptly selected by the Presiding Judge of the Superior Court (or his
representative). The referee shall be appointed to sit as a temporary judge,
with all of the powers of a temporary judge as authorized by law, and upon
selection should take and subscribe to the oath of office as provided for in
Rule 244 of the California Rules of Court. Each party shall have one peremptory
challenge pursuant to Section 170.6 of the CCP. The referee shall (A) be
requested to set the matter for hearing within 60 days after the Claim Date and
(B) try any and all issues of law or fact and report a statement of decision
upon them, if possible, within 90 days of the Claim Date. Any statement of
decision rendered by the referee shall be final, binding and conclusive on the
parties and judgment shall be entered pursuant to Section 644 of the CCP in the
Superior Court or any other court in the State of California having
jurisdiction. Any party may apply for a reference proceeding at any time after
30 days following notice to any other party of the nature of the controversy,
dispute or claim by filing a petition for a hearing or trial. All discovery
permitted by this Section 16 shall be completed no later than 15 days before the
first hearing date established by the referee. The referee may extend such
period in the event of a party's refusal to provide requested discovery for any
reason whatsoever, including legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by any
party upon seven days' written notice, and request for production or inspection
of documents shall be responded to within ten days after service. All disputes
relating to discovery that cannot be resolved by the parties shall be submitted
to the referee, whose decision shall be final, binding and conclusive on the
parties. Pending appointment of the referee as provided herein, the Superior
Court is empowered to issue temporary or provisional remedies, as appropriate.
(c) Except as expressly set forth in this Section 16, the referee
shall determine the manner in which the reference proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee,
except for trial, shall be conducted without a court reporter, except that when
any party so requests, a court reporter will be used at any hearing conducted
before the referee. The party making such a request shall have the obligation to
arrange for and pay for the court reporter. The costs of the court reporter at
the trial shall be borne equally by the parties.
(d) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the State
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, to provide temporary or
provisional remedies and to file a statement of decision that will be binding
upon the parties. The referee shall issue a single statement of decision at the
close of the reference proceeding, which shall dispose of all of the claims of
the parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest the statement of decision and
Exhibit K Page 13
<PAGE>
to appeal from any judgment or appealable order entered by the Superior Court or
any other court based on such statement of decision. The parties hereto
expressly reserve the right to findings of fact, conclusions of law, a written
statement of decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference proceeding
subject to this Section 16.
(e) In the event that the enabling legislation that provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure described in this Section 16 will be resolved and determined by
arbitration. The arbitration will be conducted by a retired judge of the
Superior Court, in accordance with the California Arbitration Act, Sections 1280
through 1294.2 of the CCP. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
(f) THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE NOT SUBJECT TO THE
REFERENCE OR ARBITRATION PROCEDURES SET FORTH HEREIN, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG THE , THE AGENT, THE COLLATERAL AGENT AND THE
BANKS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR ANY OF
THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. The scope of
this waiver is intended to be all encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction,
including without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. The Agent, the Collateral
Agent, the Banks and the Borrower each acknowledge that this waiver is a
material inducement to enter into a business relationship, that each has already
relied on the waiver in entering into this Guaranty and the other Credit
Documents, and that each will continue to rely on the waiver in their related
future dealings. The Agent, the Collateral Agent, the Banks and the Borrower
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each, knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS GUARANTY OR TO ANY OTHER CREDIT DOCUMENT. In the event of litigation, this
Guaranty may be filed as a written consent to a trial by the court.
(g) To the extent not addressed by the preceding provisions of this
Section 16, any legal action or proceeding against the Borrower with respect to
this Guaranty or any other Credit Document may be brought in the courts of the
State of California or of the United States for the Central District of
California, and, by execution and delivery of this Guaranty and the other Credit
Documents, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower
Exhibit K Page 14
<PAGE>
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower at its address
set forth in Section 13, such service to become effective 30 days after such
mailing. Nothing herein shall affect the right of the Agent, the Collateral
Agent any Bank or the holder of any Note to serve process in any other manner
permitted by law or, subject to the preceding provisions of this Section 16, to
commence legal proceedings or otherwise proceed against the Borrower in any
other jurisdiction.
(h) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document brought in the courts referred to in clause (g) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
17. The obligation of the Guarantor to make payment in Dollars of any
Guaranteed Obligations due hereunder shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Dollars, except to the extent such tender
or recovery shall result in the actual receipt by the Agent at its Payment
Office on behalf of the Banks or holders of the Notes of the full amount of
Dollars expressed to be payable in respect of any such Guaranteed Obligations.
The obligation of the Guarantor to make payment in Dollars as aforesaid shall be
enforceable as an alternative or additional cause of action for the purpose of
recovery in Dollars of the amount, if any, by which such actual receipt shall
fall short of the full amount of Dollars expressed to be payable in respect of
any such Guaranteed Obligations, and shall not be affected by judgment being
obtained for any other sums due under this Guaranty.
18. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantor and the Agent.
19. Subject to Section 20, in case any provision in or obligation
under this Guaranty shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
20. It is the desire and intent of the Guarantor, the Banks, the
Agent and the Collateral Agent that this Guaranty shall be enforced against the
Guarantor to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and
to the extent that, the obligations of the Guarantor under this Guaranty shall
be adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of the Guarantor shall be deemed to be
Exhibit K Page 15
<PAGE>
reduced and the Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
"GUARANTOR"
[INSERT NAME OF SUBSIDIARY]
By_______________________________________
Name:__________________________________
Title:_________________________________
Accepted and Agreed to:
IMPERIAL BANK
as Agent for the Banks
By:_______________________________
Name: Mike Berrier
Title: Vice President
Exhibit K Page 16
<PAGE>
EXHIBIT L
---------
FOREIGN SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of August 17, 1999 (as modified, amended
or supplemented from time to time, this "Guaranty"), made by [__________], a
[country domicile] [entity structure] (the "Guarantor"). Except as otherwise
- -----------------
defined herein, terms used herein and defined in the Credit Agreement (as
hereinafter defined) shall be used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Wireless Facilities, Inc., a Delaware corporation (the
"Borrower"), the Banks and Imperial Bank, as agent (the "Agent") and collateral
agent (the "Collateral Agent"), have entered into a Credit Agreement, dated as
of August 17, 1999 (as modified, supplemented or amended from time to time, the
"Credit Agreement"), providing for the making of Loans as contemplated therein;
WHEREAS, the Guarantor is a Wholly-Owned Subsidiary of the Borrower;
WHEREAS, it is a condition to the making of Loans under the Credit
Agreement that the Guarantor shall have executed and delivered this Guaranty;
and
WHEREAS, the Guarantor will obtain benefits as a result of the Loans
made to the Borrower under the Credit Agreement and, accordingly, desires to
execute and deliver this Guaranty in order to satisfy the condition described in
the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby makes the following representations and
warranties to the Banks and hereby covenants and agrees with the Agent, the
Collateral Agent and each Bank as follows:
1. The Guarantor irrevocably and unconditionally guarantees the full
and prompt payment when due (whether by acceleration or otherwise) of the
principal of and interest on any Note issued under the Credit Agreement and of
all other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement or any other Credit Document and the due performance and compliance
with the terms of the Credit Documents by the Borrower (all such principal,
interest, obligations and liabilities, collectively, the "Guaranteed
Obligations"). All payments by the Guarantor under this Guaranty shall be made
on the same basis as payments by the Borrower under Sections 3.4 and 3.5 of the
Credit Agreement.
2. The Guarantor hereby waives, to the fullest extent permitted by
law:
(a) notice of acceptance of this Guaranty and notice of any liability
to which it may apply;
<PAGE>
(b) presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liability, suit or taking of other action by the
Agent, the Collateral Agent or any Bank against, and any other notice to,
any party liable thereon (including such Guarantor or any other guarantor);
(c) all rights and benefits that the Guarantor may have, now or at
any time hereafter under, and any defense, right of setoff, claim or
counterclaim whatsoever (other than payment and performance in full of all
of the Guaranteed Obligations) arising under, California Civil Code
Sections 2809, 2810, 2815, 2819, 2820, 2821, 2839, 2845, 2847, 2848, 2849,
2850 and 2855, and California Code of Civil Procedure Sections 580a, 580b,
580d and 726, and all successor sections; and
(d) all rights to require the Agent, the Collateral Agent or any Bank
to marshal assets or to pursue any other remedy in the Agent's, the
Collateral Agent's or any Bank's power.
3. The Agent, the Collateral Agent and any Bank may at any time and
from time to time without the consent of, or notice to the Guarantor, without
incurring responsibility to the Guarantor and without impairing or releasing the
obligations of the Guarantor hereunder, upon or without any terms or conditions
and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Banks and the Guarantor;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Agent, the Collateral Agent
or the Banks regardless of what liabilities or liabilities of the Borrower
remain unpaid;
Exhibit L Page 2
<PAGE>
(f) consent to or waive any breach of, or any act, omission or
default under, any of the Credit Documents, or otherwise amend, modify or
supplement any of the Credit Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to in this Guaranty
which may deprive the Guarantor of its right to subrogation against the
Borrower to recover full indemnity for any payments made pursuant to this
Guaranty.
4. The obligations of the Guarantor under this Guaranty are absolute
and unconditional and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or otherwise
affected by, any circumstance or occurrence whatsoever, including, without
limitation: (a) any action or inaction by the Agent, the Collateral Agent or any
Bank as contemplated in Section 3 of this Guaranty; or (b) any invalidity,
irregularity or unenforceability of all or part of the Guaranteed Obligations or
of any security therefor. This Guaranty is a primary obligation of the
Guarantor.
5. If and to the extent that the Guarantor makes any payment to the
Agent, the Collateral Agent, any Bank or to any other Person pursuant to or in
respect of this Guaranty, any claim which the Guarantor may have against the
Borrower by reason thereof shall be subject and subordinate to the prior payment
in full of the Guaranteed Obligations.
6. In order to induce the Banks to make the Loans pursuant to the
Credit Agreement, the Guarantor makes the following representations, warranties
and agreements:
(a) The Guarantor (i) is a duly organized and validly existing
[entity type] in good standing under the laws of the jurisdiction of its
establishment, (ii) has the power and authority to own its property and
assets and to transact the business in which it is engaged and (iii) is
duly qualified as a foreign corporation and in good standing in each
jurisdiction where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. The Guarantor has no
Subsidiaries.
(b) The Guarantor has the power to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is party
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of each of such Credit Documents. The
Guarantor has duly executed and delivered each of the Credit Documents to
which it is party, and each of such Credit Documents constitutes or, in the
case of each such other Credit Document when executed and delivered, will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms.
(c) Neither the execution, delivery or performance by the Guarantor
of the Credit Documents to which it is a party, nor compliance by it with
the terms and provisions thereof, (a) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (b) will conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the
Exhibit L Page 3
<PAGE>
Security Documents) upon any of the property or assets of the Guarantor
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement or any other material agreement, contract or
instrument to which the Guarantor is a party or by which it or any of its
property or assets is bound or to which it may be subject or (c) will
violate any provision of the documents establishing the Guarantor.
(d) To the best knowledge of the Guarantor, no order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior to the
Closing Date), or exemption by, any governmental or public body or
authority, or any subdivision thereof, or any other Person is required to
authorize, or is required in connection with, (a) the execution, delivery
and performance of any Credit Document to which the Guarantor is a party or
(b) the legality, validity, binding effect or enforceability of any such
Credit Document.
(e) There are no actions, suits or proceedings pending or, to the
best knowledge of the Guarantor, threatened (i) with respect to any Credit
Document or (ii) that could reasonably be expected to have a Material
Adverse Effect.
(f) All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of the Guarantor in writing to
any Bank (including, without limitation, all information contained herein)
for purposes of or in connection with this Guaranty or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Guarantor in writing to
any Bank will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information
(taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided.
(g) The Guarantor has filed all tax returns required to be filed by
it and has paid all income taxes payable by it which have become due
pursuant to such tax returns and all other taxes and assessments payable by
it which have become due, other than those not yet delinquent and except
for those contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting practices in
the country in which it is domiciled and those for which the failure to do
so would cause a Material Adverse Effect. The Guarantor has paid, or has
provided adequate reserves (in the good faith judgment of the management of
the Guarantor) for the payment of, all income taxes applicable for all
prior fiscal years and for the current fiscal year to the date hereof.
(h) [Include if the Guarantor is a corporation:] As of the date
hereof, the authorized capital stock of the Guarantor consists of
[______] common shares, with [_______] shares currently issued and all
outstanding,of which are registered in the name of the Borrower. All such
outstanding shares have been duly and validly issued, are fully paid and
non-assessable. The Guarantor does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any
rights
Exhibit l Page 4
<PAGE>
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital
stock.
(i) [Complete if the Guarantor is not a corporation:] Borrower's
ownership of the Guarantor consists of Borrower's ownership of all
authorized, duly and validly issued [partnership interests/shares, etc.].
(j) To the best knowledge of the Guarantor, the Guarantor is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies in the
jurisdictions in which Guarantor operates, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards
and controls), except such noncompliances as could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(k) To the best knowledge of the Guarantor, the Guarantor is not
engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no significant strike, labor
dispute, slowdown or stoppage pending against the Guarantor or, to the best
knowledge of the Guarantor, threatened against it and (ii) to the best
knowledge of the Guarantor, no union representation question existing with
respect to the employees of the Guarantor and, to the best knowledge of the
Guarantor, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i) or (ii above, either
individually or in the aggregate) could not reasonably be expected to have
a Material Adverse Effect.
(l) The Guarantor owns all the patents, trademarks, permits, service
marks, trade names, copyrights, licenses, franchises and formulas, or
rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, necessary for the present
conduct of its business, without any known conflict with the rights of
others which, or the failure to obtain which, as the case may be, could not
reasonably be expected to have a Material Adverse Effect.
(m) On the basis of a comprehensive review and assessment of the
Guarantor's systems and equipment, the Guarantor reasonably believes that
the Year 2000 Problem, including the costs of remediation thereof, will
not, as it relates to the Guarantor, result in a Material Adverse Effect.
The Guarantor is making inquiries of its material suppliers, vendors and
customers to assess whether they are taking appropriate steps to address
the Year 2000 Problem. The Guarantor is developing a contingency plan to
ensure uninterrupted and unimpaired business operation in the event of
failure of its own or a third party's systems and/or equipment due to the
Year 2000 Problem, including those of vendors, customers and suppliers, as
well as a general failure of or interruption in its communications and
delivery infrastructure.
Exhibit L Page 5
<PAGE>
(n) The Guarantor is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(o) The Guarantor is not a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7. The Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Commitments and the repayment in full of
the Loans and Notes, together with interest, fees and all other Obligations
incurred under the Credit Documents:
(a) Promptly, and in any event within four Business Days after an
officer of the Guarantor obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or Event of Default,
(ii) any litigation or governmental proceeding pending against the
Guarantor which could reasonably be expected to have a Material Adverse
Effect.
(b) Promptly, upon the request of the Agent, a copy of the
Guarantor's plan, timetable and budget to address Year 2000 Problems,
together with periodic updates thereof and expenses incurred to date, any
third party assessment of the Guarantor's Year 2000 remediation efforts,
any Year 2000 contingency plans and any estimates of the Guarantors'
potential litigation exposure (if any) to the Year 2000 Problem.
(c) Promptly, copies of all financial information, proxy materials
and other information and reports, if any, which the Guarantor shall file
with the SEC.
(d) From time to time, such other information or documents (financial
or otherwise) as any Bank may reasonably request.
(e) The Guarantor will keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in
relation to its business and activities. The Guarantor will permit
officers and designated representatives of the Agent or any Bank to visit
and inspect, under guidance of officers of the Guarantor, any of the
properties of the Guarantor, and to examine the books of record and account
of the Guarantor and its Subsidiaries and discuss the affairs, finances and
accounts of the Guarantor with, and be advised as to the same by, its
officers, all at such reasonable times and intervals and to such reasonable
extent as the Agent or such Bank may request.
(f) The Guarantor will (a) keep all property useful and necessary in
its business in good working order and condition, ordinary wear and tear
excepted, (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and
against at least such risks as are described in Schedule 8 of the Credit
Agreement, and (c) furnish to each Bank, upon written request,
Exhibit L Page 6
<PAGE>
full information as to the insurance carried. The provisions of this
Subsection shall be deemed to be supplemental to, but not duplicative of,
the provisions of any of the security documents that require the
maintenance of insurance. The Guarantor shall ensure that each insurance
policy maintained by the Guarantor names the Collateral Agent as loss payee
and the Agent, the Collateral Agent and the Banks as additional insureds.
(g) The Guarantor will do all things necessary to preserve and keep
in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Subsection
-------- -------
shall prevent the withdrawal by the Guarantor of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a Material Adverse Effect.
(h) The Guarantor will comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards
and controls), except such noncompliances as could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(i) As soon as possible and, in any event, within 10 days after the
Guarantor or any ERISA Affiliate knows or has reason to know any of the
following, the Guarantor will deliver to each of the Banks a certificate of
an Authorized Representative setting forth details as to such occurrence
and such action, if any, which the Guarantor or such ERISA Affiliate is
required or proposes to take, together with any notices required or
proposed to be given to or filed with or by the Guarantor, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan Administrator with
respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application may be or has been
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a Plan has been or may be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has
an Unfunded Current Liability giving rise to a Lien under ERISA; that
proceedings may be or have been instituted to terminate a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect
a delinquent contribution to a Plan; or that the Guarantor or any ERISA
Affiliate will or may incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal
from a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA or with
respect to a Plan under Section 4971 or 4975 of the Code or Section 409 or
502(i) or 502(l) of ERISA.
(j) The Guarantor shall cause (i) each of its fiscal years to end on
December 31 and (ii) each of its fiscal quarters to end on March 31, June
30, September 30 and December 31.
(k) The Guarantor will perform all its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by
which it is bound, except such non-performances as could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The Guarantor shall complete or accomplish the following:
(i) By December 31, 1999, make a detailed inquiry of material
suppliers, vendors and customers of the Guarantor to ascertain whether
such Persons are aware of the need to address the Year 2000 Problem
and whether they are taking appropriate steps to do so; and
(ii) By December 31, 1999, complete the renovation, installation
and testing of all systems and equipment of the Guarantor that are
affected by the Year 2000 Problem to cause them to perform correctly
date-sensitive functions for the relevant date data from before and
after December 31, 1999.
(m) Except as provided in the Credit Agreement, the Guarantor will
not create, incur, assume or suffer to exist any Lien upon or with respect
to any of its property or assets (real or personal, tangible or
intangible), whether now owned or hereafter acquired.
(n) The Guarantor will not wind up, liquidate or dissolve its affairs
or enter into any transaction of merger or consolidation, or convey, sell,
lease or otherwise
Exhibit L Page 7
<PAGE>
dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or
otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of
Inventory, materials and Equipment in the ordinary course of business) of
any Person, except that (i) the Guarantor may make sales of Inventory in
the ordinary course of its business, (ii) subject to Section 3.2 of the
Credit Agreement, the Guarantor may, in the ordinary course of business,
sell Equipment which is uneconomic or obsolete or (iii) capital
expenditures shall be permitted to the extent not in violation of Section
7.8 of the Credit Agreement.
(o) The Guarantor will not declare or pay any dividends, or return
any capital, to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital
stock now or hereafter outstanding (or any options or warrants issued by
the Guarantor with respect to its capital stock), or set aside any funds
for any of the foregoing purposes, or purchase or otherwise acquire for a
consideration any shares of any class of its capital stock now or hereafter
outstanding (or any options or warrants issued by the Guarantor with
respect to its capital stock), except that the Guarantor may pay dividends
or make distributions to the Borrower.
(p) Except as provided in the Credit Agreement, the Guarantor will
not contract, create, incur, assume or suffer to exist any Indebtedness.
(q) Except as provided in the Credit Agreement, the Guarantor will
not lend money or credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in,
or make any capital contribution to, any other Person.
(r) The Guarantor will not enter into any transaction or series of
related transactions, whether or not in the ordinary course of business,
with any Affiliate of the Guarantor, other than on terms and conditions
substantially as favorable to the Guarantor as would be obtainable by the
Guarantor at the time in a comparable arm's-length transaction with a
Person other than an Affiliate.
(s) Except as provided in the Credit Agreement, the Guarantor will
not make any expenditure for fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with GAAP and including capitalized lease
obligations).
(t) The Guarantor will not (i) make any voluntary or optional payment
or prepayment on or redemption or acquisition for value of (including,
without limitation, by way of depositing with the trustee with respect
thereto money or securities before due for the purpose of paying when due)
any Permitted Indebtedness or (ii) amend or modify, or permit the amendment
or modification of, any material provision of any Permitted Indebtedness or
of any agreement (including, without limitation, any purchase agreement,
Exhibit L Page 8
<PAGE>
indenture, loan agreement or security agreement) relating to any of the
foregoing or (iii) amend, modify or change its articles of incorporation
(including, without limitation, by the filing or modification of any
certificate of designation) or bylaws, or any agreement entered into by it,
with respect to its capital stock, or enter into any new agreement with
respect to its capital stock.
(u) The Guarantor will not, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on its ability to (i) pay dividends or make any other
distributions on its capital stock or any other interest or participation
in its profits owned by the Borrower, or pay any Indebtedness owed to the
Borrower or another Subsidiary of the Borrower, (ii) make loans or advances
to the Borrower or (c) transfer any of its properties or assets to the
Borrower, except for such encumbrances or restrictions existing under or by
reasons of (x) applicable law, (y) this Guaranty and (z) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Guarantor.
(v) The Guarantor shall not issue any capital stock (including by way
of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, capital stock, except for (i) transfers and
replacements of then outstanding shares of capital stock and (ii) stock
splits, stock dividends and similar issuances which do not decrease the
percentage ownership of the Borrower in any class of the capital stock of
the Guarantor.
(w) The Guarantor will not engage (directly or indirectly) in any
business other than the business in which it is engaged on the date hereof
or any business incidental thereto.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Agent, the Collateral Agent or any Bank in exercising any right, power or
privilege hereunder and no course of dealing between the Guarantor, the Agent,
the Collateral Agent or any Bank or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights, powers and
remedies herein expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Agent, the Collateral Agent or any Bank or
the holder of any Note would otherwise have. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agent, the Collateral Agent or any Bank or the holder of any Note to any
other or further action in any circumstances without notice or demand.
9. This Guaranty shall be binding upon the Guarantor and its heirs,
personal representatives, successors and assigns.
Exhibits L Page 9
<PAGE>
10. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except as provided in Section 10.12 of the
Credit Agreement.
11. The Guarantor acknowledges that he has received an executed (or
conformed) copy of the Credit Agreement and is familiar with the contents
thereof. The Guarantor represents and warrants that he is fully aware of the
financial condition of the Borrower, and the Guarantor delivers this Guaranty
based solely upon its own independent investigation of the Borrower's financial
condition and in no part upon any representation or statement of the Agent, the
Collateral Agent or any Bank with respect thereto. The Guarantor further
represents and warrants that it is in a position to and hereby does assume full
responsibility for obtaining such additional information concerning the
Borrower's financial condition as the Guarantor may deem material to the
Guaranteed Obligations, and the Guarantor is not relying upon or expecting the
Agent, the Collateral Agent or any Bank to furnish it any information in its
possession concerning the Borrower's financial condition or concerning any
circumstances bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Guaranteed Obligations. The Guarantor hereby waives any
duty on the part of each of the Agent, the Collateral Agent or any Bank to
disclose to the Guarantor any facts it may now or hereafter know about the
Borrower, regardless of whether any such Person has reason to believe that any
such facts materially increase the risk beyond that which the Guarantor intends
to assume, or has reason to believe that such facts are unknown to the
Guarantor. The Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of continuing guaranty which includes, without
limitation, the possibility that the Borrower will contract for additional
indebtedness for which the Guarantor may be liable hereunder after the
Borrower's financial condition or ability to pay its lawful debts when they fall
due has deteriorated.
12. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default each Bank is hereby authorized at any
time or from time to time, without presentment, demand, protest, or other notice
of any kind to the Guarantor or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) up to, but not exceeding, $10,000,000 in the
aggregate and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of the Guarantor against and on
account of the obligations of the Guarantor to such Bank under this Guaranty,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said obligations, or any of them, shall be contingent or unmatured.
13. All notices and other communications provided for hereunder shall
be in writing (including facsimile) and mailed, telecopied or delivered:
if to the Guarantor, to:
[Name of Guarantor]
c/o Wireless Facilities, Inc.
9805 Scranton Road, Suite 100
San Diego, CA 92121
Exhibit L Page 10
<PAGE>
Attention: Mr. Thomas Munro
Telephone: (858) 450-7315
Facsimile: (858) 824-2928
if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule 2 to the Credit Agreement; and
if to the Agent, at its Notice Office;
or, as to the Guarantor or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as
to each other party, at such other address as shall be designated by such party
in a written notice to the Guarantor and the Agent. All such notices and
communications shall, when mailed, telecopied or sent by overnight courier, be
effective when deposited in the mails, delivered to the overnight courier, as
the case may be, or sent by telecopier, except that notices and communications
to the Agent shall not be effective until received by the Agent.
14. If claim is ever made upon the Agent, any Bank or the holder of
any Note for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and any of the aforesaid
payees repays all or part of said amount by reason of (a) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee
or any of its property or (b) any settlement or compromise of any such claim
effected by such payee with any such claimant (including the Borrower), then and
in such event the Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it, notwithstanding any
revocation hereof or the cancellation of any Note or other instrument evidencing
any liability of the Borrower, and the Guarantor shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
15. Any acknowledgment or new promise, whether by payment or
principal or interest or otherwise and whether by the Borrower or others
(including the Guarantor), with respect to any of the Guaranteed Obligations
shall, if the statute of limitations in favor of the Guarantor against the
Agent, the Collateral Agent, any Bank or the holder of any Note shall have
commenced to run, toll the running of such statute of limitations, and if the
period of such statute of limitations shall have expired, prevent the operation
of such statute of limitations.
16. (a) THIS GUARANTY AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF CALIFORNIA.
(b) Except with respect to claims or disputes relating to the
exercise of remedies by the Agent, the Collateral Agent or any Bank against the
Guarantor or the Collateral, including (i) the foreclosure, sale or other
disposition of any of the Collateral, (ii) the collection or enforcement of the
Guaranteed Obligations, (iii) the exercise of self-help remedies, including the
exercise of any rights of setoff, or (iv) the obtaining of, or opposition to,
provisional or
Exhibit L Page 11
<PAGE>
ancillary remedies before, during or after the pendency of any judicial
reference or arbitration proceeding contemplated in this Section 16 (any and all
of which may be initiated pursuant to applicable law), each controversy, dispute
or claim between or among the parties arising out of or relating to this
Guaranty or any of the other Credit Documents or the transactions related
thereto, which controversy, dispute or claim is not settled in writing within 30
days after the date on which a Person party to any Credit Document provides
written notice to all other parties party thereto that a controversy, dispute or
claim exists thereunder (each such date, a "Claim Date") will be settled by a
reference proceeding in California in accordance with the provisions of Section
638 et seq. of the California Code of Civil Procedure (the "CCP"), which shall
-------
constitute the exclusive remedy for the settlement of any controversy, dispute
or claim concerning this Guaranty or any of the other Credit Documents or the
transactions related thereto, including whether such controversy, dispute or
claim is subject to the reference provisions set forth in this Section 16, and,
except as set forth above, the parties waive their rights to initiate any legal
proceedings against each other in any court or jurisdiction other than the
Superior Court for the State of California located in Los Angeles County,
California (the "Superior Court"). The referee shall be a retired Judge of the
Superior Court selected by mutual agreement of the parties, and if they cannot
so agree within 45 days after the Claim Date, the referee shall be promptly
selected by the Presiding Judge of the Superior Court (or his representative).
The referee shall be appointed to sit as a temporary judge, with all of the
powers of a temporary judge as authorized by law, and upon selection should take
and subscribe to the oath of office as provided for in Rule 244 of the
California Rules of Court. Each party shall have one peremptory challenge
pursuant to Section 170.6 of the CCP. The referee shall (A) be requested to set
the matter for hearing within 60 days after the Claim Date and (B) try any and
all issues of law or fact and report a statement of decision upon them, if
possible, within 90 days of the Claim Date. Any statement of decision rendered
by the referee shall be final, binding and conclusive on the parties and
judgment shall be entered pursuant to Section 644 of the CCP in the Superior
Court or any other court in the State of California having jurisdiction. Any
party may apply for a reference proceeding at any time after 30 days following
notice to any other party of the nature of the controversy, dispute or claim by
filing a petition for a hearing or trial. All discovery permitted by this
Section 16 shall be completed no later than 15 days before the first hearing
date established by the referee. The referee may extend such period in the event
of a party's refusal to provide requested discovery for any reason whatsoever,
including legal objections raised to such discovery or unavailability of a
witness due to absence or illness. No party shall be entitled to "priority" in
conducting discovery. Depositions may be taken by any party upon seven days'
written notice, and request for production or inspection of documents shall be
responded to within ten days after service. All disputes relating to discovery
that cannot be resolved by the parties shall be submitted to the referee, whose
decision shall be final, binding and conclusive on the parties. Pending
appointment of the referee as provided herein, the Superior Court is empowered
to issue temporary or provisional remedies, as appropriate.
(c) Except as expressly set forth in this Section 16, the referee
shall determine the manner in which the reference proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee,
except for trial, shall be conducted without a court reporter, except that when
any party
Exhibits L Page 12
<PAGE>
so requests, a court reporter will be used at any hearing conducted before the
referee. The party making such a request shall have the obligation to arrange
for and pay for the court reporter. The costs of the court reporter at the trial
shall be borne equally by the parties.
(d) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the State
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, to provide temporary or
provisional remedies and to file a statement of decision that will be binding
upon the parties. The referee shall issue a single statement of decision at the
close of the reference proceeding, which shall dispose of all of the claims of
the parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest the statement of decision and to appeal from any
judgment or appealable order entered by the Superior Court or any other court
based on such statement of decision. The parties hereto expressly reserve the
right to findings of fact, conclusions of law, a written statement of decision,
and the right to move for a new trial or a different judgment, which new trial,
if granted, is also to be a reference proceeding subject to this Section 16.
(e) In the event that the enabling legislation that provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure described in this Section 16 will be resolved and determined by
arbitration. The arbitration will be conducted by a retired judge of the
Superior Court, in accordance with the California Arbitration Act, Sections 1280
through 1294.2 of the CCP. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
(f) THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE NOT SUBJECT TO THE
REFERENCE OR ARBITRATION PROCEDURES SET FORTH HEREIN, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG THE , THE AGENT, THE COLLATERAL AGENT AND THE
BANKS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR ANY OF
THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. The scope of
this waiver is intended to be all encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction,
including without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. The Agent, the Collateral
Agent, the Banks and the Borrower each acknowledge that this waiver is a
material inducement to enter into a business relationship, that each has already
relied on the waiver in entering into this Guaranty and the other Credit
Documents, and that each will continue to rely on the waiver in their related
future dealings. The Agent, the Collateral Agent, the Banks and the Borrower
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each, knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE
Exhibit L Page 13
<PAGE>
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
OR TO ANY OTHER CREDIT DOCUMENT. In the event of litigation, this Guaranty may
be filed as a written consent to a trial by the court.
(g) To the extent not addressed by the preceding provisions of this
Section 16, any legal action or proceeding against the Borrower with respect to
this Guaranty or any other Credit Document may be brought in the courts of the
State of California or of the United States for the Central District of
California, and, by execution and delivery of this Guaranty and the other Credit
Documents, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the Borrower
at its address set forth in Section 13, such service to become effective 30 days
after such mailing. Nothing herein shall affect the right of the Agent, the
Collateral Agent any Bank or the holder of any Note to serve process in any
other manner permitted by law or, subject to the preceding provisions of this
Section 16, to commence legal proceedings or otherwise proceed against the
Borrower in any other jurisdiction.
(h) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document brought in the courts referred to in clause (g) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
17. The obligation of the Guarantor to make payment in Dollars of any
Guaranteed Obligations due hereunder shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Dollars, except to the extent such tender
or recovery shall result in the actual receipt by the Agent at its Payment
Office on behalf of the Banks or holders of the Notes of the full amount of
Dollars expressed to be payable in respect of any such Guaranteed Obligations.
The obligation of the Guarantor to make payment in Dollars as aforesaid shall be
enforceable as an alternative or additional cause of action for the purpose of
recovery in Dollars of the amount, if any, by which such actual receipt shall
fall short of the full amount of Dollars expressed to be payable in respect of
any such Guaranteed Obligations, and shall not be affected by judgment being
obtained for any other sums due under this Guaranty.
18. This Guaranty may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantor and the Agent.
Exhibit L Page 14
<PAGE>
19. Subject to Section 20, in case any provision in or obligation
under this Guaranty shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
20. It is the desire and intent of the Guarantor, the Banks, the
Agent and the Collateral Agent that this Guaranty shall be enforced against the
Guarantor to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of the Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of the Guarantor shall be deemed to be reduced and the Guarantor
shall pay the maximum amount of the Guaranteed Obligations which would be
permissible under applicable law.
Exhibit L Page 15
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
"GUARANTOR"
[INSERT NAME OF SUBSIDIARY]
By____________________________________
Name:_______________________________
Title:______________________________
Accepted and Agreed to:
IMPERIAL BANK
as Agent for the Banks
By:______________________________
Name: Mike Berrier
Title: Vice President
Exhibit L Page 16
<PAGE>
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement ("Amendment") is entered into as
of October 15, 1999, between Wireless Facilities, Inc. (the "Borrower"),
Imperial Bank, as "Agent" and "Collateral Agent," and "Documentation Agent," and
Imperial Bank, as a Lender.
RECITALS
--------
This Amendment is entered into in reference to the following facts:
(a) The Borrower, the Agent, the Collateral Agent, the Documentation
Agent, and the Lender entered into a Credit Agreement dated August 18, 1999 (the
Credit Agreement, as modified, supplemented, and amended to the date hereof
being hereinafter referred to as the "Credit Agreement"). Capitalized terms
used herein, without definition shall have the meaning assigned thereto in the
Credit Agreement.
(b) The Borrower, the Agent, the Collateral Agent, the Documentation
Agent, and the Lender desire to amend the Credit Agreement in certain respects,
subject to the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto hereby agree as follows.
ARTICLE ONE - AMENDMENTS
------------------------
1.1 Amendment of Introductory Paragraph. The introductory paragraph of
-----------------------------------
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Credit Agreement, dated as of August 18, 1999, among Wireless
Facilities, Inc. (the "Borrower"), a corporation organized and
--------
existing under the laws of Delaware, the financial institutions from
time to time listed in Schedule 1 (together with permitted assignees,
each a "Bank" and, collectively, the "Banks"), Imperial Bank, acting
---- -----
in the manner and to the extent described in Section 9 (in such
capacity, together with any successor appointed hereunder, the
"Agent"), IMPERIAL BANK, acting as collateral agent for the Banks
-----
under the Security Documents (in such capacity, together with any
successor appointed hereunder, the "Collateral Agent") Imperial Bank,
----------------
acting as documentation agent for the Banks hereunder (the
"Documentation Agent"), and BankOne, acting in the manner and to the
-------------------
extent described in Section 9.11 hereof (in such capacity, Co-
------------
Agent")."
1.2 Amendment of Article 9. Section 9 of the Credit Agreement is hereby
----------------------
amended by the addition of a new section, numbered 9.11, which shall read in
its entirety as follows:
<PAGE>
"9.11 Co-Agent Duties. The Co-Agent shall not have any duties or
---------------
responsibilities under this Agreement."
1.3 Amendment of Schedule 1. Schedule 1 of the Credit Agreement is hereby
-----------------------
amended and restated to read in its entirety as follows:
"SCHEDULE 1
TO CREDIT AGREEMENT
COMMITMENTS
-----------
Name of Bank Commitment
------------ ----------
Imperial Bank $10,000,000
BankOne, Arizona, N.A. $10,000,000
Total $20,000,000"
1.4 Amendment of Schedule 2. Schedule 2 of the Credit Agreement is hereby
-----------------------
amended and restated to read in its entirety as follows:
"SCHEDULE 2
TO CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
--------------------------
<TABLE>
<CAPTION>
Bank Base Rate and Domestic LIBOR Lending
---- ---------------------- -------------
Lending Office Office
-------------- ------
<S> <C> <C>
Imperial Bank Imperial Bank Imperial Bank
701 B Street, Suite 600 701 B Street, Suite 600
San Diego, CA 92101 San Diego, CA 92101
Attention: Michael Berrier Attention: Michael Berrier
Telephone: (619) 338-1512 Telephone: (619) 338-1512
Telecopier: (619) 234-2234 Telecopier: (619) 234-2234
BankOne, BankOne Arizona, N.A. BankOne, Arizona, N.A.
Arizona, N.A. 201 North Central Ave. 201 North Central Ave.
21st Floor 21st Floor
Phoenix, AZ 85004 Phoenix, AZ 85004
Attention Michael McCann Attention Michael McCann
Telephone: (602) 221-2830 Telephone: (602) 221-2830
Telecopier: (602) 221-1259 Telecopier: (602) 221-1259"
</TABLE>
2
<PAGE>
ARTICLE TWO - CONDITIONS
------------------------
2.1 Conditions Precedent. This Amendment shall be effective upon the
--------------------
Agent's receipt the following documents, executed by a duly authorized
representative of the Borrower: (a) this Amendment, and (b) a Note in the form
attached hereto as Exhibit "A."
----------
ARTICLE THREE - REPRESENTATIONS AND WARRANTIES
----------------------------------------------
3.1 Borrower's Representations and Warranties. In order to induce the
-----------------------------------------
Agent, the Collateral Agent, the Documentation Agent, and the Lender to enter
into this Amendment, the Borrower represents and warrants to the Bank that:
(a) The Borrower has the power and authority and has taken all action
necessary to execute, deliver and perform this Amendment and all other
agreements and instruments executed or delivered to be executed or delivered in
connection herewith and therewith and this Amendment and such other agreements
and instruments constitute the valid, binding and enforceable obligations of the
Borrower.
(b) The Borrower's representations and warranties contained in the
Loan Agreement are true and correct in all respects on and as of the date hereof
as though made on and as of the date hereof and no Default or Event of Default
has occurred and is continuing as of the date hereof, except as expressly cured
or waived by this Amendment.
3.2 Acknowledgment of Borrower. The Borrower expressly acknowledges
--------------------------
and agrees that as of the date of this Amendment, it has no offsets, claims or
defenses whatsoever against any of the Indebtedness or Obligations.
ARTICLE FOUR - GENERAL PROVISIONS
---------------------------------
4.1 Full Force and Effect. Except as expressly amended hereby, the
---------------------
Credit Agreement and all other documents, agreements and instruments relating to
thereto are and shall remain unmodified and in full force and effect.
4.2. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be deemed to be
an original and that all of which taken together shall constitute one and the
same instrument, respectively. Delivery of an executed counterpart of this
Amendment by facsimile shall be equally effective as delivery of a manually
executed counterpart of this Amendment. Any party delivering an executed
counterpart by facsimile shall also deliver a manually executed counterpart of
this Amendment, but failure to do so shall not effect the validity,
enforceability, of binding effect of this Agreement.
3
<PAGE>
4.3 Final Agreement. This Amendment is intended by the Borrower and
---------------
the Agent, the Collateral Agent, the Documentation Agent, and the Lender to be
the final, complete, and exclusive expression of the agreement between them with
respect to the subject matter hereof. This Amendment supersedes any and all
prior oral or written agreements relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers as of the date first above
written.
"BORROWER" Imperial Bank, as Agent, Collateral
Wireless Facilities, Inc. Agent, and Documentation Agent,
and as a Lender
By: /s/ Masood Tayebi By /s/ Illegible Signature
------------------------ ---------------------------
Its President Its Vice President
------------------------ --------------------------
Agreed and Accepted.
BankOne, Arizona, N.A.
By /s/ Illegible Signature
-------------------------
Its Vice President
------------------------
4
<PAGE>
EXHIBIT "A"
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
NOTE
$10,000,000 San Diego, California
October 15, 1999
FOR VALUE RECEIVED, Wireless Facilities, Inc., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of BankOne, Arizona, N.A. (the
---------
"Bank"), for the account of its Applicable Lending Office, in lawful money of
----
the United States of America in immediately available funds, at the office of
Imperial Bank (the "Agent") located at 9920 South La Cienega Blvd., 14th Floor,
------
Inglewood, CA 90301-4423, on the Loan Maturity Date the principal sum of Ten
Million United States dollars ($10,000,000) or, if less, the unpaid principal
amount of all Loans made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Loan in like money at said office from the date such Loan is made until
paid at the rates and at the times provided in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated as
of August 18, 1999, among the Borrower, the Bank, the other financial
institutions party thereto and the Agent (as from time to time in effect, the
"Credit Agreement") and is entitled to the benefits thereof. Capitalized terms
- -----------------
used herein shall have the meanings assigned thereto in the Credit Agreement.
This Note is secured by the Security Documents. As provided in the Credit
Agreement, this Note is subject to voluntary and mandatory prepayment, in whole
or in part, and Loans may be converted from one Type into another Type to the
extent provided in the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF CALIFORNIA.
WIRELESS FACILITIES, INC.
By
------------------------------------
Name:
-------------------------------
Title:
------------------------------
5
<PAGE>
NOTE
$10,000,000 San Diego, California
October 15, 1999
FOR VALUE RECEIVED, Wireless Facilities, Inc., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of BankOne, Arizona, N.A. (the
---------
"Bank"), for the account of its Applicable Lending Office, in lawful money of
----
the United States of America in immediately available funds, at the office of
Imperial Bank (the "Agent") located at 9920 South La Cienega Blvd., 14th Floor,
------
Inglewood, CA 90301-4423, on the Loan Maturity Date the principal sum of Ten
Million United States dollars ($10,000,000) or, if less, the unpaid principal
amount of all Loans made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Loan in like money at said office from the date such Loan is made until
paid at the rates and at the times provided in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated as
of August 18, 1999, among the Borrower, the Bank, the other financial
institutions party thereto and the Agent (as from time to time in effect, the
"Credit Agreement") and is entitled to the benefits thereof. Capitalized terms
- -----------------
used herein shall have the meanings assigned thereto in the Credit Agreement.
This Note is secured by the Security Documents. As provided in the Credit
Agreement, this Note is subject to voluntary and mandatory prepayment, in whole
or in part, and Loans may be converted from one Type into another Type to the
extent provided in the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF CALIFORNIA.
WIRELESS FACILITIES, INC.
By /s/ Masood Tayebi
-----------------------------------
Name: Masood Tayebi
------------------------------
Title: President
-----------------------------
1
<PAGE>
EXHIBIT 10.21
---------------------------------
Confidential Treatment Requested
under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement") is entered into as of 04
August 1999 (the "Effective Date") by and between Ericsson Telecom, S.A. de
C.V., a Mexican corporation ("Client") and WFI de Mexico, S. de R.I. de C.V., a
Mexican entity and its U.S. parent company Wireless Facilities, Inc.
(collectively, "WFI"). (Client and WFI are each hereinafter referred to
individually as a "Party" or collectively as "Parties").
RECITALS
A. WFI and Client's predecessor in interest QUALCOMM Wireless Services
Mexico, S.A. de C.V. ("QUALCOMM") entered in a Preferred Services Provider
Agreement dated September 23, 1998, as amended (the "Original Agreement").
B. Client is presently constructing and preparing to deploy a CDMA
Personal Communications Services network throughout Mexico, which project (the
"Pegaso Project") was initiated by QUALCOMM for Pegaso PCS, S.A. de C.V.
("Pegaso"), and assumed by Client. WFI was assigned work for the Pegaso Project
under the Original Agreement, which work is proceeding as of the Effective Date.
C. Client and WFI wish to continue and extend WFI's engagement to perform
various RF Engineering, Operations and Maintenance and other services for the
Pegaso Project and for future projects, and to replace the Original Agreement
with a new agreement setting forth revised terms and conditions of such
engagement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Parties agree as follows:
ARTICLE I. ASSIGNMENT OF SERVICES AND TERM OF AGREEMENT
1.01. Description of Services. In accordance with the terms and
-----------------------
conditions of this Agreement, WFI hereby agrees to provide Client with services
in one or more of the following functional categories as necessary to support
Client's planned telecommunications development activities (the "Services"):
(a) RF Engineering Services;
(b) Fixed Network Engineering Services;
(c) Construction Management Services;
(d) Operations and Maintenance Services ("O&M"); and
(e) Other Services as Client may request.
Descriptions of each category of Services to be performed by WFI for Client
shall be listed a fully executed Work Order (such list referred to as the
"Scope of Services"), and billed on a fixed fee or hourly basis, as agreed by
the Parties from time to time (each separately referred to as a "Work Order").
Each fully executed Work Order shall be attached hereto and made a part of this
Agreement.
1.02. Work Orders and Notice to Proceed.
---------------------------------
(a) Client may assign additional work to WFI by issuing to WFI from
time to time a signed Work Order, in substantially the form attached as Exhibit
-------
II. WFI shall begin to render Services to Client under a Work Order after WFI
- --
has indicated its acceptance of the work by countersigning and returning the
Page 1 of 16
<PAGE>
Work Order to Client. Each Work Order shall incorporate by reference all of the
terms and conditions set forth in this Agreement, however, in the case of
conflict between the terms of a Work Order and this Agreement, the terms of the
Work Order shall control, but only for the duration of the Services performed
under that particular Work Order.
(b) In addition to the provisions of Section 1.02(a) the following
procedure shall apply to categories of Services that are performed by WFI,
accepted by Client and billed to Client on a Per-Site basis ("Per-Site
Services"). Client shall deliver to WFI a written notice indicating Client's
request for WFI to proceed to perform the identified Per-Site Services on an
identified Site or Sites, and WFI shall not be authorized by Client to proceed
with Per-Site Services on any such Site until WFI has received such notice.
1.03. Term of Agreement. The initial term of this Agreement shall be one
-----------------
(1) year from the Effective Date (the "Initial Term"). At the expiration of the
Initial Term, this Agreement shall renew for one (1) year ("Renewal Term"),
unless the duration of a Work Order exceeds such term, in which case the
Agreement shall remain in effect throughout the duration of such Work Order. A
Party may indicate its intention to renegotiate the terms of this Agreement, but
only upon written notice thirty (30) days prior to the expiration of the Initial
Term or a Renewal Term. This agreement shall renew annually.
ARTICLE II. COMPENSATION AND PAYMENT
2.01. Compensation. Client shall pay WFI for all Services assigned by and
------------
rendered to Client pursuant to this Agreement and to any and all Work Orders
issued hereunder based upon a Pricing Schedule to be set forth in or attached to
each Work Order ("Service Fees") and including agreed-upon out-of-pocket
expenses incurred by WFI in its performance of Services. The Service Fees may be
adjusted based upon the Change Order procedure set forth in Section 3.02. All
work performed by WFI at Client's request in addition to the Services
specifically set forth in any particular executed Work Order ("Out-of-Scope
Services") shall be compensated in accordance with the Hourly Rates as agreed
upon by the Parties and set forth in Exhibit I. WFI shall have the right to
---------
review and adjust such Hourly Rates annually. To that end, at least sixty (60)
days prior to the anniversary of the Effective Date. WFI shall propose, in
writing, to Client any requested adjustments to the Hourly Rates, and the
Parties shall negotiate in good faith to agree upon adjusted Hourly Rates.
Adjusted Hourly Rates shall apply to all Services performed after the
anniversary date.
2.02. Taxes. All taxes and similar assessments, levies and
-----
government-imposed obligations with respect to WFI's income derived from its
performance of Services hereunder shall be the obligation of and be paid by WFI.
Client shall pay all other applicable taxes, including IVA (Value Added Tax),
which shall be added to each invoice as required by Mexican law.
2.03 Invoices and Payments.
---------------------
(a) Invoicing terms for reimbursable expenses are set forth in
Exhibit I of this Agreement. All invoices shall be in U.S. Dollars, with
- ---------
conversion-into Mexican pesos at the Mexican Ministry of Finance's (Secretaria
de Hacienda y Credito Publico) published daily rate at the time of invoicing,
and payments shall be made in Mexican pesos in the amount invoiced. Unless a
Work Order specifies otherwise, WFI may invoice Client monthly for (i) all
Service Fees (including those for Out-of-Scope Services), whether billed on a
fixed fee basis or in accordance with WFI's Hourly Rates, and (ii) any
reimbursable expenses incurred i n the previous period, all as set forth in
Exhibit I.
- ---------
(b) All invoices are due and payable by Client within forty-five
(45) days of the date of receipt by Client. Client shall review the invoices and
notify WFI in writing within thirty (30) days of receipt of the invoice of any
question, objection or dispute Client may have in connection with the invoice.
If any items are disputed, only the disputed items may be withheld from payment,
but only until such dispute between the Parties is resolved as set forth in
Article X below, and Client shall pay the remaining undisputed portion of the
invoice in accordance with the terms of this Agreement. Client shall be deemed
to have fully approved the invoice and waived all such objections or disputes to
the Service Fees and expenses invoiced if Client has not raised any question,
objection or dispute within thirty (30) days after receipt of an invoice.
Page 2 of 16
<PAGE>
Client shall pay interest on outstanding invoiced charges at the rate of [***]
percent and [***] of the overdue amount due per month.
2.04. [***] Throughout the Initial Term and any renewal terms in which this
Agreement is in effect, WFI shall [***] which shall [***] under this Agreement
[***]. For each [***] under this agreement Client [***]. WFI will [***].
ARTICLE III. CHANGE ORDERS AND OUT-OF-SCOPE SERVICES
3.01. Changes. Client shall have the right, during the term of this
-------
Agreement and during WFI's performance of any Services assigned hereunder, to
make modifications, alterations or changes within the general scope of Services,
including changes resulting from Client's re-design or change to specifications
provided to WFI (collectively, "Changes"). Client shall request Changes in
accordance with the procedures set forth in this Article III.
3.02. Change Order Procedure. Client shall advise WFI's Authorized
----------------------
Representative (as hereinafter defined) in writing, in the event that Client
contemplates making any Changes. WFI shall use its best efforts to submit to
Client, within [***] but in no event later than [***] following Client's request
for Changes: (i) a written estimate of the projected change in the cost to
Client of the performance of the Services, (ii) the effect such Changes are
expected to have on the Project Schedule, and (iii) the potential effects of the
Changes on WFI's ability to comply with any of its obligations hereunder. If
Client and WFI cannot agree upon a fixed price for such Changes, then WFI, if
directed by Client to proceed with the Changes, shall be compensated on a time
and materials basis in accordance with the Hourly Rates set forth in Exhibit I.
---------
WFI shall proceed to perform such Changes only upon issuance by Client of an
executed Change Order/Out-of-Scope Authorization in substantially the form
attached as Exhibit III.
-----------
3.03. Out-of-Scope Services. In the event that Client requests WFI to
---------------------
perform services not delineated in the Scope of Services, then Client shall
advise WFI's Authorized Representative of such request. WFI may perform Out-of-
Scope Services at Client's request. In such event, Client and WFI shall execute
an Out-of-Scope Work Authorization, in substantially the form attached as
Exhibit III, which shall include WFI's estimate of the number of hours needed to
- -----------
perform the requested Out-of-Scope Services. WFI shall proceed to perform such
Out-of-Scope Services, but only upon issuance by Client of an executed Change
Order/Out-of-Scope Authorization Memorandum. WFI shall be compensated for
Out-of-Scope Services and for reimbursable expenses associated therewith in
accordance with the Hourly Rates as agreed upon by the Parties and set forth in
Exhibit I.
- ---------
ARTICLE IV. DELIVERY AND ACCEPTANCE
4.01. Deliverables; Acceptance. WFI shall deliver to Client all items,
------------------------
work product and completed Sites required to be delivered to Client under an
applicable Work Order, including completion of all required inspections,
walk-throughs and resolution of punch list items in accordance with the Scope of
Services and Project Schedule, as may be adjusted from time to time
(collectively, "Deliverables"), only after each of the following conditions has
been met: (i) WFI has completed all Services assigned for such Site; (ii) Client
has communicated to WFI Client's receipt and acceptance of such Services
("Acceptance"); (iii) Client has paid WFI in full for all Service Fees, whether
milestone, lump-sum or hourly based, pursuant to the provisions of an applicable
Work Order and this Agreement; and (iv) Client has reimbursed WFI for all
reimbursable expenses, together with all associated pass-through fees as
described in the Work Order or in this Agreement, as applicable.
* Confidential Treatment Requested
Page 3 of 16
<PAGE>
ARTICLE V. WFI'S WARRANTIES AND RESPONSIBILITIES
5.01. General Warranty. WFI warrants to Client that all Services shall
----------------
be performed (i) in accordance with generally accepted industry practices for
similarly situated firms; (ii) in accordance with all federal, state and local
laws, ordinances, regulations and codes (collectively, "Laws") applicable and in
effect at or prior to the commencement of WFI's Warranty Period (as defined
herein; and (iii) in a good and workmanlike manner. WFI's warranties made to
Client hereunder shall be effective for a period of [***] days from the earlier
of the date of (i) Client's Acceptance of the Deliverables; (ii) Client's first
use of the Deliverables; (iii) the substantial completion or date of notice of
completion of any work item, services rendered or Site (all as defined in the
applicable Work Order); or (iv) the termination of this Agreement ("WFI's
Warranty Period").
5.02. Correction of Nonconforming or Defective Services. If Client
-------------------------------------------------
notifies WFI in writing during WFI's Warranty Period that any part of the
Services does not meet the standards specified in Section 5.01 (such notice to
be provided no later than [***] after Client becomes aware of the nonconformity
or defect), then WFI shall, at its own cost, promptly refinish, repair or
replace, at its option, such nonconforming or defective part of the Services,
within the original Scope of Services. If WFI does not promptly commence to
correct any nonconforming or defective Services or any part thereof, Client
shall give WFI at least [***] written notice prior to proceeding with any
correction of nonconforming or defective Services that Client reasonably
believes involves a warranty claim. If WFI fails to respond to such notice,
Client may proceed with the correction of such nonconforming or defective
Services and all reasonably incurred expenses of such correction shall be
charged to WFI.
5.03. Wear and Tear. WFI does not warrant against and shall have no
-------------
liability for the effects of ordinary wear and tear, erosion or corrosion, or
inoperability of a Site due to faulty operations or maintenance by Client or its
contractors, or conditions of service more severe than specified in the Scope of
Services or other technical documents included with this Agreement. Further, WFI
shall have no liability for defects in the Services unless Client demonstrates
that the defect is not attributable to WFI's reliance upon or use of data,
design criteria, drawings, specifications or other information furnished by
Client.
5.04. Limitation of Warranty. THE WARRANTIES CONTAINED IN THIS ARTICLE V
----------------------
ARE IN LIEU OF ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE OR OTHER
WARRANTIES, EXPRESS OR IMPLIED, AND SHALL GOVERN AND SUPERSEDE ANY OTHER TERMS
IN THIS AGREEMENT. Correction of nonconformities, in the manner and for the
period of time provided above, shall constitute fulfillment of all liabilities
of WFI and Client, whether based on contract, negligence or otherwise with
respect to, or arising out of such Services as provided hereunder. Unless a
statement in this Agreement is specifically identified as a warranty, the
statements made in this Agreement by WFI relating to its Services are not
warranties and do not form part of the basis of the bargain, but are merely made
in the course of the negotiations of the Parties.
5.05. WFI's Authorized Representatives. WFI shall assign an individual
--------------------------------
to serve as Account Manager, and, upon issuance of a Work Order, shall appoint
an individual to serve as WFI's Project Manager for the Services performed for
Client on each project. Both the Account Manager and WFI's Project Manager shall
be WFI's Authorized Representatives, authorized to act on WFI's behalf at all
times with respect to the project and the terms and conditions of WFI's
performance of Services hereunder. No individuals other than WFI's Authorized
Representatives shall be authorized to act on WFI's behalf with respect to such
terms and conditions, and Client shall not be entitled to rely on the
representations of any other WFI employee, contractor or agent to vary the
terms, conditions and obligations of the Parties under this Agreement or any
Work Order issued hereunder.
5.06. WFI's Project Manager.
---------------------
(a) WFI shall, upon issuance of a Work Order, appoint an individual
to serve as WFI's Project Manager for the Services performed for Client on each
project. WFI's Project Manager shall be WFI's Authorized Representative,
authorized to act on WFI's behalf at all times with respect to the project.
WFI's Project Manager's instructions, requests and decisions shall be binding
upon WFI as to all matters pertaining to this Agreement and the performance by
the Parties of their obligations hereunder, provided, however, that no
--------
* Confidential Treatment Requested
Page 4 of 16
<PAGE>
amendment or modification of this Agreement shall be effected except by a
written amendment or duly executed Change Order Out-of-Scope Authorization.
(b) WFI's Project Manager shall consult with Client periodically
and on a regularly scheduled basis, WFI's Project Manager shall deliver to
Client no less frequently than monthly by the tenth (10th) day of each calendar
month, a written report of progress on the project during the preceding month
(each, a "Progress Report"). The Progress Report shall, in reasonable detail,
report on all major material facets of activities and progress in the
performance of the Services, indicating milestones reached and the occurrence of
any special events or circumstances affecting or relating to the Services and
project. Further, the Progress Report shall evaluate problems and deficiencies
and describe any planned corrective action.
5.07. Project Schedule. WFI shall prepare, in accordance with Client's
----------------
project objectives and provide to Client a Project Schedule, showing major and
billable (if appropriate) milestones for the Services to be provided for the
project, on a Site-by-Site basis if appropriate. The Project Schedule shall
reflect the actual date of delivery of the applicable fully executed Work Order,
which date shall be deemed the start date of the Services. It is expressly
understood by both Parties that the Project Schedule may be adjusted during the
project based on Changes, Force Majeure Events, lack of timely responses to WFI
from Client or other unforeseen delays.
5.08. Staffing. WFI shall commit to each project personnel as needed to
--------
meet its obligations under this Agreement. A list of key personnel functions
required for the project is attached hereto or may be agreed upon for, and
attached to each Work Order. WFI warrants that the personnel assigned to the
project ("Project Staff") shall have the requisite skill, expertise and
experience to perform the Services in accordance with WFI's warranty for the
Services set forth in Section 5.01(b) above. Project Staff shall be under the
direct or indirect supervision of WFI's Project Manager, and Client shall bring
to WFI's Project Manager exclusively any issues relating to the performance or
attitude of Project Staff. WFI's Project Manager shall promptly address such
issues and take appropriate corrective or disciplinary action.
5.09. Permits; Compliance with Laws. For the duration of WFI's
------------------------------
performance of Services for the project, WFI shall:
(a) Obtain, at its own expense, but with Client's reasonable
assistance if necessary, all applicable permits and licenses required by any
state or local government agency in order to lawfully perform the Services
(collectively, "Permits"); and
(b) Comply with the provisions of all Laws applicable to its
performance of the Services.
Client, however, assumes all responsibility for obtaining Permits and
complying with Laws following Acceptance of any Site or Services from WFI.
ARTICLE VI. CLIENT'S RESPONSIBILITIES
6.01. Appointment of Client's Authorized Representative. Client shall
-------------------------------------------------
promptly appoint an individual as Client's WFI's Authorized Representative,
authorized to act on Client's behalf at all times with respect to the project.
Client's Authorized Representative's instructions, requests and decisions shall
be binding upon Client as to all matters pertaining to this Agreement and the
performance by the Parties of their obligations hereunder, provided, however,
--------
that no amendment or modification of this Agreement shall be effected except by
a written amendment or fully executed Change Order/Out-of-Scope Authorization.
6.02. Duties of Client's Authorized Representative. Client's Authorized
--------------------------------------------
Representative shall be WFI's and WFI's Authorized Representatives' primary
point of contact with Client, and WFI shall be entitled to rely on Client's
Authorized Representative's direction, requests, instructions and decisions as
those of Client. Client's Authorized Representative shall promptly respond to
all inquiries and requests for action by WFI's Project Manager or Project Staff
related to the project and Services. Any unreasonable delay by Client in
providing such responses shall be cause for delay and readjustment of the
Project Schedule at Client's sole cost and with no effect on WFI's compensation
hereunder.
Page 5 of 16
<PAGE>
6.03. Client's Permits. Client shall obtain at its own expense, but with
----------------
WFI's reasonable assistance if necessary, all applicable permits and licenses
required by any federal, state or local government agency to be taken out in the
name of Client in order to lawfully implement the project.
6.04. Environmental Conditions. Anything in this Agreement to the
------------------------
contrary notwithstanding, title to, ownership of and legal responsibility and
liability for any Environmental Hazard shall at all times remain with Client,
and WFI shall have no liability for the indemnification, treatment or handling
of any Environmental Hazard. For purposes of this Agreement, the term
"Environmental Hazard" means any existing or potentially hazardous or toxic
substance, pollutant, contaminant or condition as defined or classified under
applicable federal, state or local laws governing environmental matters and
pertaining to any Site, which was not brought to the Site by WFI, including,
without limitation, conditions requiring the preparation of any environmental
impact statement under such laws.
6.05. Access. Client shall provide WFI with access to any Site or
------
facility at all times as necessary for WFI's performance of Services.
ARTICLE VII. CONTRACTORS
7.01. Contractors. WFI may delegate to unaffiliated third party
-----------
contractors ("Third Party Contractors") such duties as WFI deems necessary for
the successful completion of Services performed for the project. WFI shall be
responsible to Client for the completion of all work by Third Party Contractors.
WFI may have portions of the Services performed by its affiliated entities or
their employees, in which event WFI shall be solely responsible for such
Services and Client shall look solely to WFI as if such Services were performed
by WFI.
ARTICLE VIII. DEFAULT, BREACH, TERMINATION AND SUSPENSION
8.01. Default by Client. Any of the following shall be deemed a default by
-----------------
Client under this Agreement: Client's failure to: (i) timely pay undisputed
invoiced fees and reimbursable expenses in accordance with the procedures set
forth in this Agreement; and/or (ii) respond within a reasonable time to WFI's
requests for required information or approval, thereby affecting WFI's ability
to meet the Project Schedule. WFI shall promptly notify Client in writing of any
such default and Client shall have thirty (30) days after receipt of such
written notice to cure such default. In the event that Client defaults as
defined in subsection (i) above, WFI shall have the right to suspend its further
performance of Services for Client under this Agreement and any Work Orders,
until Client has cured such default. In the event of such suspension, the
provisions of Section 8.05(a) below shall apply.
8.02. Default by WFI. WFI's failure to timely or completely perform, in
--------------
accordance with professional standards obtaining for similarly situated
telecommunications outsourcing firms, the Services assigned to WFI pursuant to
this Agreement and any fully executed Work Orders shall be a default hereunder.
Client shall notify WFI in writing within ten (10) days after the occurrence of
a default. WFI shall have thirty (30) days after receipt of Client's written
notice of default to cure such default.
8.03. Termination in Event of Default. Either Party may terminate this
-------------------------------
Agreement immediately upon written notice to the other Party under any of the
following circumstances, each of which shall constitute a material breach of
this Agreement: (i) the other Party fails to cure any default hereunder within
the applicable notice and cure periods as provided in Sections 8.01 and 8.02
above; (ii) the other Party makes an assignment for the benefit of creditors
(other than solely as an assignment of moneys due); (iii) the other Party
becomes unable to pay its debts as they become due, unless assurance
satisfactory to the terminating Party is provided within thirty (30) days of
receipt of its notice of termination hereunder; or (iv) the other Party becomes
the subject of a proceeding, whether voluntary or involuntary, under the
bankruptcy or insolvency laws of the United States or any other jurisdiction,
unless such proceeding is dismissed or withdrawn within forty-five (45) days of
the non-defaulting Party's receipt of the defaulting Party's notice of
termination hereunder.
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<PAGE>
8.04. Procedure upon Expiration or Termination.
----------------------------------------
(a) Upon the expiration or termination of this Agreement, WFI shall
promptly return to Client, or destroy, as Client may direct, all of Client's
property in WFI's possession. Each Party shall render to the other such
reasonable assistance as may be necessary for the orderly continuation of the
other Party's business.
(b) If Client terminates this Agreement or a Work Order for any
reason, WFI shall be entitled to payment and reimbursement, respectively, for
its Services rendered and reasonable expenses incurred in connection with the
project up until receipt of such notice. If the Services are compensated in
accordance with a schedule of payment or performance milestones ("Fixed Fee
Services"), then Client shall compensate WFI for all Services performed, whether
or not milestones have been fully completed as of the date of termination. If
this Agreement or any Work Order for Fixed Fee Services is terminated for any
reason prior to the completion of all required milestones, WFI shall be entitled
to: (i) [***] and (ii) [***]. In the event that WFI terminates this Agreement,
then, in addition to the compensation described in this Section 8.04(b), WFI
shall be entitled to reimbursement of any reasonable expenditures (together with
the administrative mark-up set forth in Exhibit I) incurred as a result of the
---------
premature wind-up of WFI's work, including without limitation, any suspension or
cancellation charges imposed by vendors, lessors and Third Party Contractors on
the project. Under no circumstances shall WFI be required to reimburse Client
for fees or expenses incurred in securing and compensating replacement providers
of any of the Services.
8.05. Suspension of Services. Client may, at any time after WFI has begun
----------------------
to perform Services and for any reason, suspend performance of the Services or
any portion thereof by giving written notice to WFI. Suspension shall continue
for the period specified in Client's suspension notice (the "Suspension
Period"), provided that no Suspension Period shall exceed [***]. Immediately
--------
upon commencement of the Suspension Period, Client shall direct WFI
to either demobilize its project team and wind up its performance of Services
for the duration of the Suspension Period, or to keep the project team in place
and available for remobilization at the conclusion of the Suspension Period.
(a) If Client requests that WFI demobilize its project team and wind
up performance of the Services, then WFI shall be paid for (i) [***], (ii) [***]
and (iii) [***].
(b) If Client suspends the Services, and requests that WFI keep its
project team in place, then in addition to the compensation described in Section
8.05(a), Client shall pay WFI and other [***] during [***].
(c) Upon Client's notification to WFI that Client wishes to end the
Suspension Period and reactivate WFI's performance of the Services (i) Client
shall compensate WFI [***], including, without limitation, [***] and other
related [***] (ii) [***] (iii) any of [***] shall be [***] and (iv) WFI shall
[***] to [***].
(d) If, at the end of the specified Suspension Period (or when the
aggregate duration of all Suspension Periods equals or exceeds [***], Client has
not requested WFI to resume performing the Services or has not notified WFI of
any extension of the Suspension Period, WFI may elect to treat the suspension as
a termination of the applicable Work Order or of the entire Agreement, effective
as of the commencement date of the Suspension Period. In such event, WFI may
immediately wind up all of its
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<PAGE>
activities with respect to the terminated Services and Client shall compensate
WFI from the date of suspension in accordance with the provisions of Section
8.04(b).
ARTICLE IX. RELATIONSHIP OF PARTIES
9.01. Independent Contractor. WFI is and shall act as an independent
----------------------
contractor in the performance of its obligations under this Agreement.
Notwithstanding the foregoing, both Parties acknowledge and agree that WFI
employees, during the Initial Term and any Renewal Terms, shall be working at
the direction and management of Client, however, WFI shall retain full control
of and supervision over its own employees. WFI's personnel performing Services
are agents, employees or contractors of WFI and are not employees of Client.
Nothing herein shall be deemed to create any other relationship between the
Parties, including, without limitation, a partnership, joint venture, employer-
employee or attorney-client relation. WFI shall be solely liable for all matters
relating to compensation, unemployment, disability insurance, social security,
withholding and all other federal, state and local laws, rules and regulations
governing its employees. WFI will honor Client's request for the removal of any
particular WFI employee from the project for inadequate performance,
qualifications ar attitude.
9.02. Solicitation of Employees. WFI and Client agree that, during [***]
-------------------------
neither Party shall solicit nor accept for employment any employees of the other
who have worked on or performed Services in connection with the project, without
first obtaining the other Party's express written consent.
9.03. [***] During the Initial term, and throughout the duration of any
renewals thereof, WFI [***] and [***] provided, however, that [***].
ARTICLE X. DISPUTE RESOLUTION
10.01. Arbitration of Disputes. All claims, whenever brought and whether
-----------------------
between the Parties or between one of the Parties and the employees, agents or
affiliated businesses of the other Party shall be resolved by binding
arbitration in accordance with this Section; provided that the Parties have
--------
first complied with the procedures of Sections 2.03(b) and Article VII, as
applicable.
(a) Prior to filing any claims for binding arbitration (as provided
below), the Parties shall in good faith first negotiate a written resolution of
such dispute or claim for a period not to exceed thirty (30) days from the date
of receipt of a Party's request for such negotiation. Executives or managers of
each Party who have the authorization to resolve any such dispute or claim shall
conduct such negotiations. In the event the Parties cannot negotiate a written
resolution to such dispute or claim during the thirty (30) day negotiation
period provided hereunder, either Party may submit the matter to binding
arbitration in accordance with the provisions of this Section.
(b) A single, mutually agreeable arbitrator engaged in the practice of
law and knowledgeable about telecommunications law and engineering practices
shall conduct the arbitration in accordance with the then current commercial
arbitration rule of the International Arbitration Association ("IAA"). The
arbitration shall be conducted in Mexico, D.F.
(c) All expedited procedures prescribed by the IAA shall apply. The
arbitrator's decision shall state the reasoning by which the arbitrator
determined the award. The arbitrator's decision shall be final and binding and
judgment may be entered in any court having jurisdiction thereof.
(d) Each Party shall pay its own costs and expenses incurred in
connection with the arbitration, including legal fees, and each Party shall pay
one-half the arbitrator's professional fees.
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<PAGE>
ARTICLE XI. INSURANCE
11.01. Commencing on the Effective Date and throughout the term of this
Agreement, WFI shall maintain; (a) comprehensive General Liability insurance
coverage in an amount not less than $1,000,000 per occurrence for bodily injury
or death, personal injury and property damage liability; (b) Workers
Compensation coverage with statutory limits; and (c) Business Automobile
Liability Insurance with a combined single limit, including owned and rented
vehicles, of $1,000,000. WFI shall name Client as an additional insured and
promptly provide Client with proof of coverage if requested by Client.
ARTICLE XII. FORCE MAJEURE
12.01. Neither Party shall be liable for any delay or failure in
performing its obligations hereunder that is due to circumstances beyond such
Party's reasonable control, including, but not limited to, acts of God, civil
unrest, riots, war, fire, floods, explosions, inability to obtain required
materials and strikes or other concerted acts of labor (each, a "Force Majeure
Event"). Upon the occurrence of a Force Majeure Event, the Party whose
performance is affected shall give written notice to the other Party describing
the affected performance. The Parties shall promptly confer, in good faith, to
agree upon equitable, reasonable action to minimize the impact of the condition
on both Parties. The Party whose performance is affected shall use commercially
reasonable efforts to minimize the delay caused by the Force Majeure Event and
resume the affected performance. The Project Schedule shall be adjusted for the
amount of time that the Force Majeure Event continues to affect performance.
ARTICLE XIII. INDEMNIFICATION, LIMITATIONS AND RISK OF LOSS
13.01. WFI's General Indemnity. WFI shall defend, indemnify and hold
-----------------------
harmless Client and its affiliates and each of their respective successors,
assigns, employees, agents, officers and directors (collectively, the "Client
Indemnified Persons") from and against all damages, losses, costs and expenses
(including attorneys' fees and expenses) (collectively, "Claims") resulting from
the death or bodily injury to any person, or damage to any property or Site to
the extent caused by the sole negligent, tortious or otherwise unlawful act,
error or omission by WFI or contractors under WFI's direct supervision or
control.
13.02. Client's General Indemnity. Client shall defend, indemnify and
--------------------------
hold harmless WFI and its affiliates and each of their respective successors,
assigns, employees, agents, officers and directors (collectively, the "WFI
Indemnified Persons") from and against all damages, losses, costs and expenses
(including attorneys' fees and expenses) (collectively, "Claims") resulting from
the death or bodily injury to any person, or damage to any property or Site to
the extent caused by the sole negligent, tortious or otherwise unlawful act,
error or omission by Client or contractors under Client's direct supervision or
control.
13.03. General Limitation of Liability. The Parties' rights, liabilities
-------------------------------
and responsibilities with respect to the Services shall be exclusively those
expressly set forth in this Agreement. NEITHER PARTY SHALL BE RESPONSIBLE OR
HELD LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, WHICH
SHALL INCLUDE, WITHOUT LIMITATION: LOSS OF PROFITS, INTEREST, PRODUCT OR
SERVICE, BUSINESS INTERRUPTION, COSTS OF REPLACEMENT SERVICES, AND INCREASED
COSTS OF OPERATION, MAINTENANCE OR STAFFING. Notwithstanding anything that may
appear to the contrary herein, in no event shall WFI be liable in the aggregate
for more than WFI actually received from Client under this Agreement.
13.04. Waivers and Amendments. Either Party's waiver of any default by
----------------------
the other Party shall not be deemed a waiver of any other default. No provision
of this Agreement shall be deemed waived, amended or modified by either Party,
unless such waiver, amendment or modification is in writing and signed by an
authorized representative of each Party.
Page 9 of 16
<PAGE>
ARTICLE XIV. INTELLECTUAL PROPERTY
14.01. Ownership of Data Products and Software. All data products
---------------------------------------
purchased for a project shall be the property of Client. All licensed software
used by WFI in the performance of Services is and shall remain the property of
WFI unless purchased by Client on a pass-through basis in accordance with
Exhibit I attached hereto. WFI shall own exclusively the rights to any
- ---------
software, program, algorithm or other copyrightable material (collectively,
"Material") that was owned by or licensed to WFI prior to its execution of this
Agreement, regardless of the use or presence of such Material in the creation of
any work product or deliverable for Client, unless the Parties agree otherwise
in writing.
14.02. Confidential Information. Each Party may make available to the
------------------------
other access to certain trade secrets and other confidential technical, business
and financial information, including the contents of this Agreement and the
Exhibits thereto (collectively, "Confidential Information"). So long as and to
the extent that Confidential Information is clearly and identifiably marked
"Confidential" or "Proprietary" (if in tangible form) or is not generally
available to the public from other sources, each Party shall safeguard such
Confidential Information in the manner in which it safeguards its own
confidential information, and shall not disclose Confidential Information to its
employees, contractors and agents, except to the extent necessary to enable it
to fulfill its obligations under this Agreement. The obligations of this Section
14.02 shall survive for [***] after the termination or expiration of this
Agreement.
ARTICLE XV. GENERAL PROVISION
15.01. Governing Law: Consent to Jurisdiction and Venue. Except as may
------------------------------------------------
apply to claims submitted to arbitration under Article X, this Agreement shall
be construed in accordance with the laws of the Mexican United States,
irrespective of conflict of law principles. Each Party hereby agrees to submit
to the in personam jurisdiction of and consents to venue in the courts in
-----------
Mexico, D.F. for any suit, action or proceeding between the Parties that arises
out of this Agreement or the Parties' performance of their obligations
hereunder, and expressly agrees to waive any defenses thereto.
15.02. Severability. If any provision or any part of a provision of this
------------
Agreement shall be held invalid or unenforceable, then the remaining portions of
that provision and the remainder of the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or portion thereof,
and the rights and obligations of each Party shall be construed and enforced
accordingly.
15.03. Survival. The terms, conditions and warranties contained in this
--------
Agreement that by their sense and context are intended to survive the
termination or expiration of this Agreement shall so survive; including, without
limitation, the provisions of Articles [***].
15.04. Assignment. This Agreement is binding upon and inures to the
----------
benefit of the Parties and their respective permitted successors and assigns. A
Party may assign its rights and/or delegate its duties under this Agreement to a
third party only with the prior written consent of the other Party, except that
an assignment to a third party that controls, is controlled by, is under common
control with, or is the legal successor of the assigning Party, shall not
require such consent. Any assignment of rights or delegation of duties under
this Agreement by a Party will not release that Party from its obligations
hereunder.
15.05. Entire Agreement: Modifications. This Agreement, including the
-------------------------------
Exhibits attached hereto, constitutes the entire agreement between the Parties
with respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior and contemporaneous agreements, representations,
statements, negotiations and understanding, whether written or oral, are
superseded by this Agreement. This Agreement may be modified only in a written
document signed by both Parties.
15.06. Headings: Construction: Incorporation or Recitals. The headings of
-------------------------------------------------
the sections of this Agreement are inserted for convenience only and are not
intended to affect its meaning or interpretation. In this Agreement, the
singular shall apply to the plural and the plural to the singular, unless the
context clearly indicates otherwise. The recitals set forth in the beginning of
this Agreement are hereby incorporated and
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<PAGE>
made a material part hereof. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one instrument.
15.07. Further Assurances. The Parties shall execute and deliver such
------------------
further documents and instruments and perform such further acts as may be
reasonably be required to carry out the intent and purposes of this Agreement.
15.08. Jointly Drafted; Counsel. This Agreement shall be deemed drafted by
------------------------
both Parties and, in the event of a dispute, shall not be construed against
either Party. Each Party acknowledges that it has had opportunity to consult
with counsel of its own choosing prior to entering into this Agreement.
15.9. Authorized Signature. Each Party represents to the other that the
--------------------
person signing this Agreement on its behalf is duly and fully authorized to bind
such Party to all of its obligations herein.
15.10. Notices. Except as otherwise provided herein, all notices or other
-------
communications to be given by either Party to the other shall be deemed duly
given when made in writing and delivered in person or when deposited in the
United States mail, postage prepaid, certified, return receipt requested or sent
via confirmed facsimile, and addressed as follows:
If to WFI:
---------
Jay Tayebi, Executive Officer
WFI de Mexico, S. de R.L. de C.V.
Goethe 40 Esq. Darwin
Col. Anzures, 11560 Mexico D.F.
Telephone: (525)203-9830
Fax: (525)203-1270
If to Client:
------------
Lic. Ricardo Arguijo Sverdrup
Ericsson Telecom, S.A. de C.V.
Via Dr. Gustavo Baz No. 2160
Fraccionamiento Industrial La Loma,
Tlalnepantla, Estado de Mexico, C.P. 54060
Telephone: (525)726-2170
Fax: (525)397-7721
A Party may change its notice address by notifying the other in accordance
with this Section.
15.11. Exhibits. The following Exhibits are attached hereto and
--------
incorporated herein:
Exhibit I: Hourly Rates, Expense Reimbursement and Invoice
Schedule
Exhibit II: Sample Work Order
Exhibit III: Sample Change Order/Out-of-Scope Work Authorization
Exhibit IV: Staffing Schedule
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
ERICSSON TELECOM, S.A. DE C.V. WFI DE MEXICO, S. DE R.L. DE C.V.
- ------------------------------ ---------------------------------
Lic. Ricardo Arguijo Sverdrup Jay Tayebi
Legal Counsel Executive Officer
Date: 04 August 1999 Date: 04 August 1999
Page 11 of 16
<PAGE>
Exhibit I
to
Master Services Agreement
Between Ericsson Teleema, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Hourly Rates, Expense Reimbursement and Invoice Schedule
--------------------------------------------------------
Hourly Rates
- ------------
The Hourly Rates set forth below shall apply to all Services performed by WFI,
unless a Work Order specifically states otherwise. For all Services performed by
WFI that are in addition to those described in any particular executed Work
Order ("Out-of-Scope Services"), Client shall compensate WFI on an hourly basis
in accordance with the rates set forth in the table below. WFI may invoice
Client monthly for all hourly-billed Services and for any Out-of-Scope Services
rendered the previous period. ALL RATES ARE QUOTED IN U.S. DOLLARS, BUT SHALL BE
PAID IN MEXICAN PESOS IN ACCORDANCE WITH SECTION 2.03 OF THE MASTER SERVICES
AGREEMENT.
===========================================================================
Senior System Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Senior Network Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
System Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Field Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Hardware/Software Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Senior Project Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Project Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Construction Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Project Controls Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Engineering Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Senior Construction Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Senior Project Controls Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Senior Engineer -- Design Review $ [***] $ [***]
- ---------------------------------------------------------------------------
Technicians $ [***] $ [***]
- ---------------------------------------------------------------------------
Document Controls $ [***] $ [***]
- ---------------------------------------------------------------------------
Network Engineering Consulting - Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Network Engineering Consulting -- Sr. Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Network Engineering Consulting -- Design Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Network Engineering Consulting -- Assoc. Engineer $ [***] $ [***]
- ---------------------------------------------------------------------------
Network Engineering Consulting -- Technician $ [***] $ [***]
- ---------------------------------------------------------------------------
Civil Works Supervisor $ [***] $ [***]
- ---------------------------------------------------------------------------
Fields Administrator $ [***] $ [***]
- ---------------------------------------------------------------------------
Logistics Manager $ [***] $ [***]
- ---------------------------------------------------------------------------
Field Commissioning Technicians $ [***] $ [***]
===========================================================================
Additional Per Diem and Living Expenses. Client agrees to reimburse WFI for
- ---------------------------------------
[***] including [***] if applicable.
WFI agrees to provide the [***] and [***] for the [***] of [***] U.S. dollars
[***].
Client will pay [***] as follows: (a) [***] and (b) [***].
The above rates include [***].
* Confidential Treatment Requested
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<PAGE>
Exhibit I
to
Master Services Agreement
Expense Summary
- ---------------
The Hourly Rates are inclusive of expense categories indicated with an "X" in
the table below. Unmarked expense categories are considered pass-through
expenses to be reimbursed at WFI's cost plus a [***]% administrative fee. WFI
may invoice Client monthly for reimbursable pass-through expenses and
administrative fees.
Mexican
Expense Category Expatriates Nationals
---------------------------------------------------------------------------
Travel Expenses [***] [***]
---------------------------------------------------------------------------
Project Administrative Tasks [***] [***]
---------------------------------------------------------------------------
Office Space [***] [***]
---------------------------------------------------------------------------
Profit [***] [***]
---------------------------------------------------------------------------
Corporate G&A Expense [***] [***]
---------------------------------------------------------------------------
Taxes [***] [***]
---------------------------------------------------------------------------
Business Entertainment [***] [***]
---------------------------------------------------------------------------
Postage [***] [***]
---------------------------------------------------------------------------
Small Tools [***] [***]
---------------------------------------------------------------------------
Telecommunications Expense [***] [***]
---------------------------------------------------------------------------
Licenses and Permits [***] [***]
---------------------------------------------------------------------------
Import Taxes [***] [***]
---------------------------------------------------------------------------
Tax Expense [***] [***]
---------------------------------------------------------------------------
Telephone [***] [***]
---------------------------------------------------------------------------
Local Transportation [***] [***]
---------------------------------------------------------------------------
Computers - Laptops (including Microsoft Office
and Windows 95 or Windows 98 software) [***] [***]
---------------------------------------------------------------------------
Office Equipment [***] [***]
---------------------------------------------------------------------------
Expendables [***] [***]
---------------------------------------------------------------------------
Utilities [***] [***]
---------------------------------------------------------------------------
Office Security [***] [***]
---------------------------------------------------------------------------
* Confidential Treatment Requested
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<PAGE>
Exhibit II
to
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, de R.L. de C.V.
Sample Work Order
-----------------
WORK ORDER NO.:___
DATE:____________, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement")
dated ________________, 1999 by and between Ericsson Telecom. S.A. de C.V.
("Client") and WFI de Mexico, S. de R.L. de C.V. and its affiliates ("WFI") and
according to the following terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[Description of Services and tasks--See attachments]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI
for the Services [at a per-site rate of $____ or in accordance with the
hourly rates set forth in Exhibit I to the Agreement]. Client shall pay
Service Fees for Out-of-Scope Services, reimbursable expenses (together
with applicable administrative fees) and Materials Management Services, if
any, (together with applicable administrative fees) in accordance with
Exhibit I of the Agreement.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees [in
accordance with the schedule of Payment Milestones per Attachment ___ to
this Work Order/set forth in the table below or monthly for Services billed
at the hourly rates set forth in Exhibit I to the Agreement]. WFI shall
---------
invoice Client for Service Fees for Out-of-Scope Services, reimbursable
expenses (together with applicable administrative fees) in accordance with
Exhibit I of the Agreement.
---------
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section 2.03(b) of the Agreement.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services
(in accordance with the Project Schedule) immediately upon full execution
of this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder: however, in case of conflict, the terms of this Work Order shall
govern.
ERICSSON TELECOM, S.A. DE C.V. WFI DE MEXICO, S. DE R.L. DE C.V.
By: By: /s/ ILLEGIBLE SIGNATURE
--------------------------- --------------------------------
Name: Name:
------------------------- ------------------------------
Title: Title:
------------------------ -----------------------------
Date: Date:
------------------------- -------------------------------
Page 14 of 16
<PAGE>
Exhibit III
to
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Sample Change Order/Out-of-Scope Authorization
----------------------------------------------
(Attach to Invoice)
<TABLE>
<S> <C>
CHANGE ORDER/OUT-OF-SCOPE
AUTHORIZATION NUMBER: ___________________ SITE NAME: __________________________
DATE: __________________, 1999 SITE NUMBER: ______________________
(Attach list if multiple sites are affected)
EFFECT ON PROJECT SCHEDULE: ___YES ___NO (If Yes, attach revised Project Schedule)
</TABLE>
WFI has been requested to perform the following services in the nature of
Changes or Out-of-Scope Services:
_______________________________________________________________________
[description of services]
_______________________________________________________________________
Estimated number of hours required to perform above services:
__________________________________________________________________
Job Category Estimated Hourly Rate
No. of Hours
__________________________________________________________________
$
__________________________________________________________________
$
__________________________________________________________________
$
__________________________________________________________________
Estimated Total Cost $
__________________________________________________________________
Should WFI spend less time to perform the services required, you will, of
course, be billed for the lower number of hours at the rates set forth. We will
advise you if WFI estimates that more time may be required to perform these
services, so that we can reestablish the Project Schedule and estimated cost
figures.
Expenses shall be reimbursed in accordance with the provisions of the Master
Services Agreement.
This Change Order/Out-of-Scope Authorization is issued subject to and hereby
incorporates by reference the Master Services Agreement (including Exhibits
thereto) and all applicable Work Orders issued thereunder. In case of conflict,
this Change Order/Out-of-Scope Authorization shall control.
Accepted & Approved:
<TABLE>
<S> <C>
ERICSSON TELECOM, S.A. DE C.V.: WFI Project Manager: ______________________
By: ___________________________________ Date: _____________________________________
Name and Title: _______________________ WFI Functional Manager: ___________________
Date: _________________________________ Date: _____________________________________
</TABLE>
Page 15 of 16
<PAGE>
Exhibit IV
to
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Staffing Schedule
-----------------
WFI's Account Director: Jose Ruiz-de-Chavez
WFI's Project Manager: Per Work Order
Project Staff (by job category):
-------------------------------
Per Work Order
Page 16 of 16
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Work Order for Engineering Services on a time and Materials Basis
-----------------------------------------------------------------
WORK ORDER NO.: 1
DATE: August 4, 1999
NOT-TO-EXCEED VALUE: $[***]
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement") by
and between Ericsson Telecom, S.A. de C.V. ("Client") and WFI de Mexico, S. de
R.L. de C.V. and its affiliates ("WFI") and according to the following terms.
This Work Order will cover the period from May 24, 1999 through December 31,
1999.
1. Assignment and Service Fees: The Services to be undertaken under this Work
Order shall be performed by WFI personnel under the direction of Client
Project Management on a "Time and Materials" basis. Exhibit I to the
Agreement contains WFI's labor categories and the hourly rates charged for
each category. Client will select WFI personnel to perform Services who fall
into one of these labor categories, determine the Services that each WFI
employee selected by Client will provide, and specify the schedule within
which Services will begin and be completed. As Client's needs for the
project change, EM shall be entitled to make any changes at any time at its
sole discretion during which Services are being performed.
2. Expenses and Billing:
Billing per person shall be based on actual hours worked.
The Hourly Rates and per diem and living expenses, including car allowance,
shown in Exhibit I of the Agreement will apply for the duration of this Work
Order. Such rates are subject to annual review and adjustment in accordance with
the terms of the Agreement. Client will reimburse WFI for actual airfare to the
market where the Services are performed at WFI's cost plus a [***]% mark-up but
only for amounts and levels that Client considers to be reasonable, standard,
and customary for the environment and business in which Client operates.
WFI shall notify Client in writing, once its total billing for Services
performed under this Work Order reaches [***]% of the Work Order Not-to-Exceed
Value.
In performing the services covered under this Work Order.
. Client will furnish to WFI:
- [***].
- [***].
. WFI shall furnish:
- [***].
* Confidential Treatment Requested
Page 1 of 2
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Work Order for Engineering Services on a Time and Materials Basis
-----------------------------------------------------------------
WFI personnel shall submit weekly time sheets to Client's Technical Lead(s) to
whom they report. The Client Technical Lead(s) will review them and, if
acceptable, shall return them to WFI as approved for inclusion by WFI in its
invoice to Client.
All invoices shall be due and payable by Client in accordance with the terms set
forth in Section 2.03(b) of the Agreement.
3. Further detail regarding services to be provided and related deliverable to
be produced under this Work Order will be specified by Client on an as-
needed basis.
4. Points of Contact for this Work Order are:
Technical Lead
--------------
Bill Mazilly, Senior Director-Project Management,
858.332.5250 (phone-US)
858.332.7177 (fax-US)
525.100.0905 (phone-Mex.)
WFI Point of Contact
--------------------
Jay Tayebi, Executive Officer
525-203-9830 (phone-Mex.)
5. Commencement of Services: WFI shall initiate performance of the Services
immediately upon full execution of this Work Order.
6. Master Services Agreement: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
ERICSSON TELECOM, SA de CV WFI de MEXICO, S. de R.L. de CV
By:/s/ illegible signature By: /s/ JAY TAYEBI
------------------------------- -------------------------------
Name: illegible signature Name: JAY TAYEBI
----------------------------- -------------------------------
Title: Legal Counsel Title: Executive Officer
---------------------------- ------------------------------
Date: August 4, 1999 Date: August 4, 1999
---------------------------- ------------------------------
* Confidential Treatment Requested
Page 2 of 2
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Work Order for Turnkey RF Engineering Services for 414 Sites (Phase 2)
----------------------------------------------------------------------
WORK ORDER NO.:2a
DATE: August 4, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement")
dated ________, 1999 by and between Ericsson Telecom, S.A. de C.V. ("Client")
and WFI de Mexico, S. de R.L. de C.V. and its affiliates ("WFI") and according
to the following terms:
1. Assignment:
WFI shall perform turnkey RF Engineering, Optimization and Equipment services
(collectively, the "Services") at Client's direction, for 414 sites in Client's
CDMA Network Deployment project in Ensenada, Mexicali and Chapala, Mexico, as
described in the Request for Proposal dated __________, 1999, issued by Qualcomm
Wireless Services Mexico, S.A. de C.V., Client's predecessor in interest.
2. Fees and Expenses:
Client shall pay to WFI the fixed prices per site as follows:
RF Engineering $ [***]
Optimization $ [***]
Equipment $ [***]
-------
Total Fixed Fee per Site $ [***]
WFI shall notify Client in writing, once its total billing for Services
performed under this Work Order reaches [***]% of the Work Order Not-to-Exceed
Value.
Expenses shall be billed in accordance with the Hourly Rate per diem and living
expenses in Exhibit 1 of this agreement for [***]. [***].
. Client will furnish to WFI:
- [***]
- [***]
. WFI shall furnish [***].
* Confidential Treatment Requested
Page 1 of 2
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S.de R.L. de C.V.
Work Order for Turnkey RF Engineering Services for 414 Sites (Phase 2)
----------------------------------------------------------------------
WFI personnel shall submit weekly time sheets to Client's Technical Lead(s) to
whom they report. The Client Technical Lead(s) will review them and, if
acceptable, shall return them to WFI as approved for inclusion by WFI in its
invoice to Client.
Further detail regarding services to be provided and related deliverables to be
produced under this Work Order will be specified by Client on an as-needed
basis.
3. Points of Contact for this Work Order are:
Technical Lead
- --------------
Bill Mazilly, Senior Director-Project Management
858.332.5250 (phone-US)
858.332.7177 (fax-US)
525.100.0905 (phone-Mex.)
WFI Point of Contact
- --------------------
Jay Tayebi, Executive Officer
525-203-9830 (phone-Mex.)
4. Payment of Invoices: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section 2.03(b) of the Agreement.
5. Duration of Services: The pricing indicated for the above-described Services
is expressly based on the assumption that the Project will continue for a
period of [***] from the date that Client gives WFI its Notice to Proceed
with the Services under this Work Order. If the Project requires that the
Services be performed for longer than such [***] period, then all Services
performed after the conclusion of such period will be billed on a time and
materials basis in accordance with the terms set forth in Exhibit I of the
Agreement.
6. Commencement of Services: WFI shall initiate performance of the Services
immediately upon full execution of this Work Order.
7. Master Services Agreement: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
ERICSSON TELECOM, SA de CV WFI de MEXICO, S de RL de CV
By: /s/ illegible signature By: /s/ JAY TAYEBI
---------------------- ------------------------
Name: illegible signature Name: Jay Tayebi
-------------------- ----------------------
Title: Legal Counsel Title: Executive Officer
------------------- ---------------------
Date: August 4, 1999 Date: August 4, 1999
-------------------- ----------------------
* Confidential Treatment Requested
Page 2 of 2
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Work Order for Construction Management Services for 414 Sites (Phase 2)
-----------------------------------------------------------------------
WORK ORDER NO.: 2b
DATE: August 4, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement")
dated __________, 1999 by and between Ericsson Telecom, S.A. de C.V. ("Client")
and WFI de Mexico, S. de R.L. de C.V. and its affiliates ("WFI") and according
to the following terms:
1. Assignment:
WFI shall perform construction management and quality control services
(collectively, the "Services") at Client's direction, for telecommunications
sites in Client's CDMA Network Deployment project for Pegaso PCS. SA de CV in
Mexico (the "Project"). The Services shall include the following activities:
. Participate in Project construction meetings
. Participate in site audit with Alcatel (equipment vendor) Site Acquisition
team
. Initiate memoranda regarding outstanding issues related to construction to
Client
. Revise work quantities and site cost estimates with Alcatel
. Update Ericsson/Pegaso Construction Tracking Sheet
. Review construction drawings for acceptance and accuracy
. Conduct internal safety meetings relevant to the Project
. Perform quality assurance oversight on all sites under construction
. Document deficiencies noted on punch list or site acceptance checklist for
sites that are substantially complete
2. Fees and Expenses:
Client shall pay to WFI a fixed price per site for the Services, with pricing to
vary depending upon the number of WFI personnel deployed, as shown below. Prior
to execution and delivery of this Work Order, Client and WFI shall agree on the
number of people to be deployed for the Project.
Number Deployed Per Site Fee
--------------------------------
[***] people $[***]
--------------------------------
[***] people $[***]
--------------------------------
WFI shall notify Client in writing, once its total billing for Services
performed under this Work Order reaches [***]% of the Work Order Not-to-Exceed
Value.
[***] and [***]. [***] and
<PAGE>
Master Services Agreement
Between Ericsson Telecom, S.A. de C.V. and WFI de Mexico, S. de R.L. de C.V.
Work Order for Construction Management Services for 414 Sites (Phase 2)
-----------------------------------------------------------------------
[***]
. Client will furnish to WFI:
- [***]
- [***]
. WFI shall furnish [***].
Further detail regarding services to be provided and related deliverables to be
produced under this Work Order will be specified by Client on an as-needed
basis.
3. Duration of Services: The pricing indicated for the above-described Services
is expressly based on the assumption that the Project will continue for a
period of [***] from the date that Client gives WFI its Notice to Proceed
with the Services under this Work Order. If the Project requires that the
Services be performed for longer than such [***] period, then all Services
performed after the conclusion of such period will be billed on a time and
materials basis in accordance with the terms set forth in Exhibit I of the
Agreement.
4. Points of Contact: Points of Contact for this Work Order are:
Technical Lead
--------------
Bill Mazilly, Senior Director-Project Management
858.332.5250 (phone-US)
858.332.7177 (fax-US)
525.100.0905 (phone-Mex.)
WFI Point of Contact
--------------------
Jay Tayebi, Executive Officer
525-203-9830 (phone-Mex.)
5. Payment of Invoices: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section 2.3(b) of the Agreement.
6. Commencement of Services: WFI shall initiate performance of the Services
immediately upon full execution of this Work Order.
7. Master Services Agreement: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
ERICSSON TELECOM, SA de CV WFI de MEXICO, S de RL de CV
By: /s/ illegible signature By: /s/ JAY TAYEBI
----------------------- ------------------------
Name: illegible signature Name: Jay Tayebi
--------------------- ----------------------
Title: Legal Counsel Title: Executive Officer
-------------------- ---------------------
Date: August 4, 1999 Date: August 4, 1999
--------------------- ----------------------
* Confidential Treatment Requested
Page 2 of 2
<PAGE>
EXHIBIT 10.22
----------------------------
AMENDED AND RESTATED Confidential Treatment
-------------------- Requested under 17
MASTER SERVICES AGREEMENT C.F.R. (S)(S) 200.80(b)(4)
------------------------- 200.83 and 230.406
----------------------------
THIS AMENDED AND RESTATED MASTER SERVICES AGREEMENT ("Agreement"), dated as
of the ____ day of October, 1999 (the "Effective Date"), is made by and between
TeleCorp Communications, Inc., a Delaware corporation and its operating
affiliates ("TeleCorp") and Wireless Facilities, Inc., a Delaware corporation
and its operating affiliates ("WFI"). TeleCorp and WFI are each sometimes
referred to herein as a "Party," and collectively as the "Parties."
WHEREAS, the Parties' legal predecessors entered into a Master Services
Agreement dated February 27, 1998 (the "Original Agreement"), as amended by the
Revised and Restated First Amendment to the Master Services Agreement dated May
21, 1999 (as amended, the "Amended Original Agreement"), pursuant to which
TeleCorp engaged WFI to perform various engineering and site development
services in connection with TeleCorp's development of its PCS system in various
locations in the United States and [***]; and
WHEREAS, the text of Original Agreement described the specific nature
of the services to be performed by WFI and set forth the pricing for each type
of services; and
WHEREAS, over the course of their relationship the Parties agreed upon
numerous additions and modifications to the nature, locations and pricing of the
services described in the Original Agreement, and therefore amended the Original
Agreement to include such additions and modifications, resulting in the Amended
Original Agreement; and
WHEREAS, to clarify the terms of the Amended Original Agreement and to
provide a more efficient mechanism by which TeleCorp may issue further
assignments to WFI, the Parties desire to amend and restate the Amended Original
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties do hereby amend and restate the Original Agreement
in its entirety, effective as of the Effective Date, as follows:
EXPLANATORY STATEMENT
TeleCorp desires to engage WFI ("General Contractor") to perform numerous
different types of services related to TeleCorp's planned personal communication
services ("PCS") system (the "System"). These services consist of site
acquisition, construction management, program management, microwave relocation
and engineering services (each a "Service", collectively the "Services"), all of
which are more specifically set forth in Work Orders attached hereto. As of the
Effective Date, TeleCorp may assign to WFI additional Services by means of fully
executed Work Orders issued from time to time, substantially in the form of
Schedule F attached hereto. TeleCorp and WFI therefore, in consideration of the
- ----------
mutual promises and covenants contained herein, agree as follows:
Page 1 of 90
CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
I. TRADING AREAS AFFECTED; COMMITMENT; TELECORP'S
ACQUISITION OF LICENSES
TeleCorp is the license-holder for the FCC "A", "B", "D" and "F" Block
licenses (collectively, the "Initial Frequency Blocks") and the FCC "C" Block
licenses for the Major Trading Areas and Basic Trading Areas listed on Schedule
--------
C attached hereto.
- -
II. RELATIONSHIP OF PARTIES
A. INDEPENDENT CONTRACTOR RELATIONSHIP.
The Parties intend by this Agreement to establish an independent
contractor relationship. Neither Party nor their employees shall be agents or
legal representatives of the other Party for any purpose. Neither Party shall
have the authority to act for, bind, or commit the other Party. WFI and
TeleCorp agree that this Agreement does not establish or create a relationship
of employer-employee, principal-agent, or a franchise, joint venture, or
partnership for any purpose whatsoever.
B. EMPLOYEES
During the term of this Agreement, neither Party shall solicit nor
accept for employment any senior management employees of the other Party without
first obtaining the express written consent of the other Party. TeleCorp shall
have the first right to select which of WFI's project managers shall provide
Services hereunder and over any employee of WFI currently rendering services for
TeleCorp. TeleCorp shall have the right to request, in writing and upon five (5)
days' notice to WFI, that a particular employee of WFI perform no further work
in connection with this Agreement. WFI agrees that it will immediately honor any
such request made by TeleCorp.
C. INDEPENDENT CONTRACTORS
WFI shall act as a manager in its capacity as a general contractor.
Without relieving WFI of any of its obligations hereunder, WFI may engage
independent contractors to perform any of the construction Services. WFI shall
be responsible, but subject to TeleCorp's approval, for selecting the non-WFI
persons, contractors, subcontractors, and agents to perform the construction
Services to be performed or managed by WFI hereunder. In the event that WFI does
retain independent contractors to perform Services, WFI shall be responsible for
selecting, contracting, and paying such independent contractors, and WFI shall
not bind TeleCorp or cause TeleCorp to be bound to any such independent
contractor contract (or agreement of any kind whatsoever), without TeleCorp's
written consent at its sole discretion. TeleCorp shall have the right to
approve any such non-WFI persons and to approve the terms and conditions of any
contract therewith entered into by WFI. All such independent contractors shall
provide, to TeleCorp's satisfaction, appropriate licenses and insurance.
D. CONTRACTS WITH AFFILIATES
WFI may contract with any affiliate of WFI to provide goods or
services beyond those which its employees would perform, it if deems the same to
be necessary or advisable for
Page 2 of 90
<PAGE>
construction of the Sites. All such contracts shall be subject to prior written
approval by TeleCorp in its sole discretion.
III. REQUIRED SERVICES
Reference is made to the individual, sequentially numbered Work Orders,
each of which is attached to this Agreement and made a part hereof.
IV. PAYMENT
A. PAYMENTS TO CONTRACTORS
WFI shall be responsible for making all payments due to contractors
and subcontractors selected by, or contracted with, WFI to perform services and
to provide materials at the Sites in connection with Services rendered
hereunder. TeleCorp may advise WFI in writing that TeleCorp will pay them
directly. WFI shall present copies of all such invoices relating to
construction of the Sites that WFI has paid to TeleCorp, and TeleCorp shall then
provide WFI reimbursement of such disbursements plus [***]% of such
disbursements within thirty (30) days of TeleCorp's receipt of said invoices
from WFI. Notwithstanding the foregoing, if such disbursements and fees remain
unreimbursed to WFI after thirty (30) days of receipt by TeleCorp, the following
procedures shall apply:
1. WFI shall notify TeleCorp's Controller in writing that such
disbursements and fees are more than thirty (30) days overdue;
2. If such disbursements and fees remain overdue for a total of
forty-five (45) days after receipt by TeleCorp, WFI shall notify
TeleCorp's Senior Vice President of Finance in writing; and
3. Provided that such outstanding undisputed fees and disbursements
--------
are in excess of [***] Dollars ($[***]) and have been outstanding
for a period of [***] days after receipt by TeleCorp, then, for
the duration of the initial term and any renewal terms of this
Agreement, TeleCorp shall reimburse WFI for any and all such
disbursements plus [***] percent ([***]%) of such disbursements
within thirty (30) days of TeleCorp's receipt of said invoices
from WFI.
WFI shall furnish evidence satisfactory to TeleCorp that all labor
furnished and material consumed by WFI during the invoice period have been paid
in full and that the Services are not subject to liens or claims on account
thereof. TeleCorp may withhold payment of the invoice until WFI furnishes such
evidence.
TeleCorp retains the right to directly dispute any material default
under any agreement between WFI and any materials or service provider to the
extent such agreement authorizes WFI to so dispute, provided that TeleCorp shall
provide written notice to WFI of TeleCorp's election to dispute. Upon notice of
TeleCorp's election to dispute, WFI shall cease all payments to the disputed
services or materials provider until such time as TeleCorp authorizes WFI to
resume payment schedule. Nothing in this Section IV.A. shall relieve TeleCorp
of its obligations to make reimbursement payments to WFI under this Section IV,
provided that TeleCorp may suspend such reimbursement payments for all invoices
paid by WFI following a stop payment/dispute notice from TeleCorp. If TeleCorp
disputes the amount of expenses of fees
Page 3 of 90
* Confidential treatment requested
<PAGE>
claimed by WFI, then as between WFI and TeleCorp, such dispute shall be resolved
in accordance with Section X.
WFI shall pay all taxes, duties, and assessments of every nature due
in connection with the Services, and shall invoice TeleCorp for said taxes on a
reimbursable basis. WFI hereby indemnifies and holds harmless TeleCorp and its
subsidiaries, affiliates, stockholders, directors, officers and agents from any
and all liability on account of any and all such taxes, duties, assessments, and
deductions.
B. PARTIAL PAYMENTS FOR SITE WITHDRAWAL AND REDESIGN
1. Withdrawal. In the event TeleCorp elects to withdraw a Search
-----------
Ring assigned to WFI for Site Acquisition Services (as defined in
an applicable Work Order), TeleCorp shall give WFI notice of such
withdrawal, and shall pay WFI [***]% of the milestone installment
that would be due if the work currently in progress was completed
and [***]% of all other amounts due hereunder for work completed
on the Search Ring as of the date of TeleCorp's withdrawal notice.
In the event TeleCorp elects to withdraw a CMS Site, TeleCorp
shall give WFI notice of such withdrawal, and shall pay WFI [***]%
of the milestone installment that would be due if the work
currently in progress was completed and [***]% of all other work
completed on the withdrawn CMS Site as of the date of TeleCorp's
withdrawal notice; provided that TeleCorp shall not be penalized
--------
for withdrawing a Search Ring or CMS Site if TeleCorp transfers
such Search Ring or CMS Site to a third party tower management
company with whom WFI has contracted to perform site development
services with respect to that Search Ring or CMS Site. In this
Agreement, a Search Ring is defined as a small geographic areas
within which a PCS cell site or transmission tower shall be
located, based on the network grid's RF design, a Site is defined
as a possible location on which a PCS cell site or transmission
tower could be located within each Search Ring, and a CMS Site is
defined as a Site for which WFI has commenced to perform
Construction Management Services.
2. Search Rings Design. In the event that TeleCorp redesigns a
Search Ring beyond [***] miles of an ur ban or suburban Site or
[***] miles of a rural Site, rendering unnecessary such Site that
it had previously approved and for which WFI has begun but not yet
completed all Site Acquisition Services, then TeleCorp shall pay
WFI [***]% for all Site Acquisition Services completed at the time
that the notice of redesign is received by WFI. For all Site
Acquisition Services rendered for the redesigned search ring
TeleCorp shall pay WFI an additional [***]% of the milestone
installments due for all milestone installments previously
performed and [***]% of all milestone installments to be performed
for the first time.
C. TIMING OF PAYMENT
All invoices shall be sent to TeleCorp's mailing address and marked:
Attn: Accounts Payable. WFI shall invoice TeleCorp in accordance with the
payment schedule set forth herein. Such invoice, after receipt in form
satisfactory to TeleCorp, and subject to verification by TeleCorp, shall be paid
within thirty (30) days of receipt by TeleCorp. Invoices must be sent in
accordance with the invoicing instructions provided in this Agreement. All
invoices must indicate the FEIN # 52-1924331 or 133818604 and the correct code
per line item invoiced. These codes have been provided to WFI by TeleCorp.
Page 4 of 90
<PAGE>
D. PAYMENT DISPUTES
If TeleCorp disputes the amount of expenses or fees claimed by WFI,
TeleCorp shall notify WFI in writing, in the manner set forth in Section
V.C.1.a, prior to making such payment, and shall pay when due all amounts not in
dispute. If the disputed matter cannot be resolved informally between the
Parties, either TeleCorp or WFI may request arbitration pursuant to Section X of
the Agreement.
E. LIABILITIES
WFI shall remain solely responsible for all matters relating to
compensation, unemployment, disability insurance, social security, withholding,
and all other federal, state, and local laws, rules and regulations governing
such matters.
F. APPLICABILITY OF SECTION; WORK ORDERS
Payment shall be due WFI from TeleCorp under the provisions of this
Section with respect to all Services performed by WFI for TeleCorp; unless a
Work Order specifies otherwise, in which case the provisions of the Work Order
shall apply to the Services provided under that Work Order, provided, however,
--------
that any such Work Order must be approved in writing by the Chief Financial
Officer or General Counsel of TeleCorp.
G. INTEREST
All fees and reimbursable expenses due under this Agreement which
shall remain unpaid for a period of greater than [***] days shall bear interest
at the greater of the rate of [***]% per month or the maximum permitted by law
unless such amount is under dispute pursuant to Paragraph IV. D above.
V. TERM AND TERMINATION
A. TERM
The Agreement's initial term shall expire on January 1, 2001, unless
renewed by both Parties in writing prior to the expiration date.
B. TERMINATION WITHOUT CAUSE
TeleCorp may terminate this Agreement or the provision of any Service
by WFI hereunder upon sixty (60) days prior written notice for any reason or no
reason.
C. TERMINATION FOR CAUSE
1. Termination for Cause.
Either Party shall have the right to terminate the provision of
any Service to be provided pursuant to this Agreement, for cause,
if the other Party has materially failed to perform its
obligations with respect to that Service, and (i) written notice
of such failure has been provided to the breaching Party in a
Page 5 of 90
<PAGE>
form reasonably calculated to allow the breaching Party to (a)
acknowledge the failure and cure same or (b) dispute the failure,
and (ii) the breaching Party has failed to dispute or to cure the
failure within [***] days of receiving such notice.
Notwithstanding anything herein that may appear to be to the
contrary, the Parties expressly acknowledge and understand that,
if TeleCorp is in breach of its obligations to respond to WFI
within the time periods set forth in any applicable Work Order for
any Service, then TeleCorp may not exercise its right to terminate
such Service for cause under this Section V.C.1.
2. Termination Notice.
If either Party intends to terminate any Service it shall do so,
subject to this Agreement, by sending a written notice by
facsimile and confirmed by reputable overnight carrier able to
provide proof of delivery, specifying which Service it intends to
terminate and (if for cause) for what cause. A notice of
termination duly sent shall be effective on the date sent by
overnight courier.
3. Upon any termination of this Agreement, WFI shall use its best
efforts to assign any subcontracts relating to the Services to
TeleCorp.
VI. INSURANCE
A. WFI'S REQUIRED INSURANCE
WFI shall maintain in effect, without interruption, on an annual
basis, during the term of this Agreement, the following insurance policies:
1. Commercial General Liability (Bodily Injury and Property Damage).
Insurance coverage with endorsement evidencing coverage for
contractual liability. The limits of this insurance shall not be
less than:
a. Each Occurrence Limit $1,000,000
b. General Aggregate Limit $2,000,000
2. Comprehensive Automobile Liability insurance covering the
ownership, operation and maintenance of allowed, non-owed, and
hired motor vehicles, in limits not less than $1,000,000 for
bodily injury and property damage per occurrence.
3. Worker's Compensation Insurance with statutory limits and
Employer's Liability Insurance with limits of not less than
$1,000,000 for each accident.
4. Professional Liability (errors and omissions) insurance of not
less than $1,000,000 for each occurrence) with endorsement
evidencing coverage for contractual liability.
5. All foregoing insurance shall provide for an effective date no
later than the Effective Date of this Agreement. WFI agrees to
maintain such coverage in effect without interruption on an annual
basis for so long as this Agreement is in effect. TeleCorp
Page 6 of 90
<PAGE>
shall be included as an additional insured on WFI's Commercial
General Liability insurance. WFI agrees to obtain such insurance
from nationally recognized carriers at commercially reasonably
rates. WFI's obligations under this Agreement, including its
indemnification obligations under Section XI A., will not be
affected by WFI's obtaining or failure to obtain any insurance
coverage required under this Section VI.
6. WFI shall provide TeleCorp with Certificates of Insurance from its
insurance agent or broker or insurance company evidencing the
above coverage and limits.
7. All insurance policies required to be maintained hereunder shall
be issued by companies that hold a current rating of not less than
a B+V111, according to Best Key Rating Guide, unless this
requirement is expressly waived in writing by the other Party.
VII. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party represents and warrants to the other Party, which
representations and warranties shall continue for the term of the Agreement and
the consummation of the transactions herein contemplated, that:
1. it has full power and authority to execute and perform under the
Agreement;
2. the execution, delivery and performance of the Agreement have
been duly authorized by all necessary action on the part of such
Party and the Agreement is binding and enforceable against such
Party in accordance with its terms;
The Parties covenant and agree to use their best efforts to cooperate with
each other in the performance of their respective obligations under the
Agreement, and to take no action that will interfere with the performance by the
other Party of such obligations.
B. WFI'S REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. WFI is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and that, as of
the Effective Date, it is qualified to do business in and is in
good standing under the laws of the following states and
Commonwealths: Virginia, Louisiana, Texas, Missouri, Illinois,
Arkansas, Indiana, Kentucky, Tennessee, Maine, Massachusetts, New
Hampshire and Puerto Rico.
2. WFI warrants its shall perform the Services in accordance with the
current standards of care and diligence normally practiced by
recognized firms in performing services of a similar nature. If,
during the [***] period following the completion of any of the
Services, TeleCorp observes that the Services or a portion of the
Services were incompletely or incorrectly performed and notifies
WFI of the same within that period, WFI shall promptly complete or
correct such Services without cost or expense to TeleCorp.
Page 7 of 90
<PAGE>
3. WFI shall comply with all local, municipal, state, federal, and
governmental laws, orders, codes, and regulations applicable to
WFI's provision of Services. WFI has all necessary licenses to
perform the Services and shall provide copies of same to TeleCorp.
4. The rates and fees charged for each Service hereunder by WFI [***]
and taking into [***]. WFI shall [***] to [***]. TeleCorp shall
[***]. If at any time during the term of this Agreement, [***].
C. TELECORP'S REPRESENTATIONS, WARRANTIES AND COVENANTS
1. TeleCorp represents and warrants that all information which it
shall provide to WFI in connection with WFI's performance of
Service hereunder shall be true and complete in all material
respects.
2. TeleCorp covenants that, in a timely fashion, it shall provide all
information which WFI reasonably requests in writing, not
otherwise freely available to WFI, deemed necessary or desirable
by WFI in the course of its provision of the Services, including,
but not limited to, information, review and approval to be
supplied in connection with the zoning, permitting or construction
process. WFI may rely on TeleCorp's Market Implementation Manager
or his designee for such information, review and approval.
3. TeleCorp is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
VIII. CONFIDENTIAL INFORMATION
A. USE OF CONFIDENTIAL INFORMATION
In order to permit the Parties to perform their respective obligations
under this Agreement, each Party may, from time to time, disclose to the other
confidential or proprietary information ("Confidential Information). Each Party
shall use all Confidential Information solely for the purpose of performing its
obligations under this Agreement. Neither Party shall disclose to any other
person, other than employees or agents of the Party who agree, in writing, to be
bound by an equivalent undertaking, any Confidential Information. WFI agrees
not to disclose any of
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<PAGE>
TeleCorp's Confidential Information or any information pertaining to the Sites
to a competitor of TeleCorp.
B. EXCEPTIONS
The aforementioned restrictions shall apply to all Confidential
Information with the exception of the following:
1. Confidential Information which is made public by either Party or
which otherwise is or hereafter becomes part of the public domain
through no wrongful act, fault, or negligence on the part of the
other Party;
2. Confidential Information which a Party can reasonably demonstrate
is already in such party's possession and not subject to an
existing agreement of confidentiality;
3. Confidential Information which is received from a third party
without restriction and without breach of an agreement with
TeleCorp or WFI;
4. Confidential Information which is independently developed by a
Party as evidenced by its records; or
5. Confidential Information which either Party is required to
disclose pursuant to a valid order of a court or other
governmental body or any political subdivision thereof; provided
that, to the extent that it may lawfully do so, the disclosing
Party shall provide the affected Party with immediate written
notice of the nature of the required disclosure and shall, where
appropriate, provide that Party with the opportunity to interpose
an objection or obtain a protective order restricting the use and
disclosure of the Confidential Information.
IX. OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
A. OWNERSHIP OF WORK PRODUCT
WFI shall promptly disclose to TeleCorp all written work product
generated in the course of performing Site Development Services and all facts
respecting such work product (the "Work Product"). WFI hereby assigns to
TeleCorp all of WFI's right title and interest in Work Product, including
without limitation all engineering or architectural drawings and specifications
developed by WFI in connection with the Site Development Services and all
intellectual property rights embodied therein. In addition, all inventions,
discoveries, and other intellectual properties, whether or not patentable, that
are conceived or reduced to practice by WFI in connection with the Site
Development Services, are the sole property of TeleCorp, and WFI hereby fully
and forever assigns same to TeleCorp.
Whenever requested, WFI shall execute a confirmatory assignment of
particular items of Work Product and such other intellectual property rights,
and it shall perform all acts reasonably necessary or appropriate to enable
TeleCorp to obtain and enforce legal protections relating thereto in all
countries. TeleCorp shall reimburse WFI's reasonable out-of-pocket expenses in
connection therewith. The Work Product shall be the confidential and proprietary
information of TeleCorp and shall be included within the definition of
Confidential Information set forth in Section VIII above.
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<PAGE>
In addition, all materials that WFI develops and delivers to TeleCorp
pursuant to this Agreement shall become the sole and exclusive property of
TeleCorp without limitation. WFI agrees to execute all documents and to take all
steps that TeleCorp deems necessary or desirable to protect TeleCorp's ownership
and property rights of these materials.
No Implied Rights or Licenses. Except as provided elsewhere in this
-----------------------------
Agreement, no rights or licenses to the Work Product or TeleCorp's Confidential
Information or to trademarks, inventions, copyrights, or patents embodied
therein are implied or granted under this Agreement.
B. OWNER'S RIGHT TO COMPLETE WORK
If WFI defaults or neglects to carry out any of its obligations, or
takes any action, or omits to do anything which endangers safety or proper
construction, or risks damage or injury to persons or property and fail within a
[***]period after receipt of reasonable detailed written notice from TeleCorp
not to commence and continue correction of such default or neglect with
diligence and promptness, TeleCorp may correct all such work, omissions, or
deficiencies, and TeleCorp shall be entitled to recover costs and expenses,
including attorneys' fees, pertaining thereto from WFI.
C. ASSIGNMENT OF PERSONAL PROPERTY AND WARRANTIES
1. WFI shall have granted, sold, assigned, transferred, conveyed, and
delivered and does by these presents grant, sell, assign,
transfer, convey and deliver unto TeleCorp, all of WFI's rights,
titles, and interests in and to that described Personal Property
and Warranties (as defined below) located in, affixed to, and/or
arising or used in connection with each of the Sites assigned to
WFI pursuant to a Work Order issued hereunder (collectively, the
"Assignment"); but such Assignment shall become effective with
respect to each Site only after each of the following conditions
----
has been met for that Site: (i) WFI has completed all Site
Acquisition, Program Management and Construction Management
Services; (ii) TeleCorp has communicated to WFI TeleCorp's final
acceptance of such Services; (iii) TeleCorp has paid WFI in full
for all Milestones for Site Acquisition, Program Management and
Construction Management Services, pursuant to the provisions of
the applicable Work Orders; and (iv) TeleCorp has reimbursed WFI
for all Per Site Advances and any other reimbursable expenses,
together with all associated pass-through fees as described in the
Agreement and/or applicable Work Orders.
2. For purposes of this Section IX. C., "Personal Property" means all
fixtures, equipment, machinery, building materials, furniture,
furnishings, and other personal property owned by WFI, and located
on, attached to, or used in connection with the operation and
maintenance of each Site; and "Warranties" means any and all
warranties and guaranties relating to the Personal Property or any
portion thereof.
3. WFI hereby represents and warrants to TeleCorp that WFI is the
absolute owner of said Personal Property with respect to a
particular Site as of the effective date of the Assignment with
respect to that Site, that said Personal Property is free and
clear of all liens, charges and encumbrances, and that WFI has
full right, power and authority to sell and assign said Personal
Property to TeleCorp.
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<PAGE>
4. TeleCorp hereby assumes and agrees to perform any and all of the
obligations of WFI with respect to the Personal Property and
Warranties herein assigned arising from and after the effective
date of the Assignment with respect to a particular Site. This
Assignment does not in any way release WFI from performing its
obligations with respect to the Personal Property and Warranties
herein assigned arising prior to the effective date of the
Assignment with respect to a particular Site.
5. WFI hereby agrees to indemnify, defend and save TeleCorp harmless
from and against any claim, loss, cost (including without
limitation, reasonable attorneys' fees) or damage (collectively,
"Claims"), to the extent that such Claims were not caused by the
acts or omissions of TeleCorp, its employees, officers or agents,
arising prior to the effective date of the Assignment with respect
to a particular Site in connection with the Personal Property and
Warranties assigned.
X. DISPUTE RESOLUTION
A. ARBITRATION PROCEDURE
If the Parties are unable to resolve any dispute arising out of or
relating to this Agreement, either Party may refer such dispute for resolution
by final and binding arbitration. The Party submitting a dispute to arbitration
shall give notice thereof to each other Party to such dispute and to the
President of the American Arbitration Association, who shall select an
arbitrator (the "Arbitrator") who (i) has expertise and at least five years'
experience in matters directly involved with the type of services to be
performed under this Agreement in the Arlington, Virginia area, (ii) certifies
to all parties that he/she is independent of the parties to the dispute and will
be able to render an impartial decision, and (iii) agrees to proceed in
accordance with the applicable provisions of this Section X.
The Arbitrator shall hold one or more hearings to begin within fifteen
(15) days of his/her selection, shall furnish a written decision within forty-
five (45) days of his/her selection, and shall provide an opinion demonstrating
the basis for such decision. The Arbitrator may also attempt to mediate the
dispute between the Parties if requested to do so by both Parties.
The Parties agree to exchange promptly any and all relevant
documentation as the Arbitrator may order. All arbitration proceedings
hereunder shall be conducted in private, and each Party hereby agrees to
maintain the confidentiality of the enforcement of the award. All arbitration
hearings or mediation sessions are to be held in the Washington, DC metropolitan
area unless otherwise agreed by the Parties, and arbitration hearings need not
be conducted in accordance with formal rules of evidence.
The Arbitrator may determine the procedure for hearings which may, but
need not, include (a) direct testimony of witnesses; (b) cross-examination of
witnesses; (c) submission of sworn statement or affidavits; (d) consideration of
relevant documents; and (e) consideration of other matters which the Arbitrator
considers to be helpful in making his/her decision.
B. COST OF ARBITRATION
The Arbitrator's fees and other expenses associated with arbitration
shall be borne equally by the Parties, unless the Arbitrator finds that the
position of one Party is frivolous or
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<PAGE>
unreasonable, in which case, the Arbitrator may require the offending Party to
pay all fees and expenses (or some disproportionate amount) associated with the
arbitration.
C. CONTINUED PERFORMANCE
At all times during the course of arbitration proceedings, the Parties
shall continue in good faith to perform their respective obligations under this
Agreement, to the extent such obligations are not in dispute. If a disputed
issue is impeding continued performance by either Party, the Arbitrator may
adopt an expedited schedule upon request of either Party. Notwithstanding the
foregoing, should WFI not be paid in timely fashion for any Service not disputed
and not subject to arbitration proceedings, WFI may suspend its performance of
such Service.
D. AWARD ENFORCEMENT
The arbitrator may award monetary damages and/or make a binding order,
and the Parties hereby agree that an award of the Arbitrator hereunder may be
enforced by either Party in the United state District Court for the Eastern
District of Virginia (Alexandria Division).
XI. MISCELLANEOUS
A. INDEMNIFICATION
1. TeleCorp shall indemnify and hold harmless WFI, its affiliates,
directors, officers, shareholders, agents, and employees thereof
from and against any fine, penalty, loss, cost, damage, injury,
claim, expense (including reasonable professional fees and costs
and all reasonable fees and costs associated with enforcing this
indemnification), or liability incurred by WFI as the result of
any act, error, omission, non-performance by negligence, or
wrongful act of TeleCorp arising directly out of the performance
of this Agreement.
2. WFI shall indemnify and hold harmless the Party and its
affiliates, and the directors, officers, shareholders, agents,
and employees thereof (collectively "Indemnitees") from and
against any fine, penalty, loss, cost, damage, injury, claim,
expense (including reasonable professional fees and costs and all
reasonable fees and costs associated with enforcing this
indemnification), or liability arising out of or in connection
with the performance of the Services, or any breach of this
Agreement (individually and collectively "Liabilities")
including, but not limited to, liabilities as a result of:
a. injury to or death of any person;
b. damage to, loss, or destruction of any property;
c. infringement of a patent, copyright, trademark, service
mark, trade name, trade dress, trade secret, or other
intellectual property right proprietary right of a third
party;
d. the presence of any hazardous materials or substances, oils,
asbestos, environmental pollution, or other substances
regulated by any environmental law placed at any TeleCorp
facility by WFI,
Page 12 of 90
<PAGE>
its affiliates, or subcontractors, or which were released into
any TeleCorp facility through the negligence or willful
misconduct of WFI, its affiliates, or subcontractors; or
e. any liability arising from WFI's failure to pay WFI's
vendors or suppliers all sums properly due such parties.
2. Upon request of TeleCorp, WFI shall, at its expense, defend any
claim, proceeding, appellate proceeding, or suit for Liabilities,
whether or not litigation is actually commenced or the allegations
are groundless or contain language that creates the potential for
Liabilities against Indemnities. WFI shall also (i) keep TeleCorp
and any other Indemnities subject to liabilities fully informed of
the progress of such defendants of any settlement discussions, and
(ii) afford TeleCorp or any Indemnities, each at its own expense,
an opportunity to participate on an equal basis with WFI in the
defense or settlement of any such Liabilities. No settlement shall
be agreed to without the prior written consent of TeleCorp, which
shall not be unreasonably withheld or delayed.
B. ASSIGNMENT
Assignment to Third Parties. TeleCorp may freely assign its rights
and obligations hereunder. Except for a transfer to an operating affiliate of
Wireless Facilities, Inc., or as specifically permitted herein, WFI may not
assign or transfer any right, interest, or obligation hereunder to any third
party without the express written consent of TeleCorp, such consent not to be
unreasonably withheld. Any purported assignment in violation of this Section
shall be void.
C. THIRD PARTY GUARANTEES AND WARRANTIES
If any of the Site Acquisition or Construction Management Services
requires the purchase of equipment or materials or the procurement of services,
WFI shall, for the protection of TeleCorp, demand from all vendors and
subcontractors commercially reasonable guarantees and Warranties with respect to
such equipment, materials, and services, which shall be made available to
TeleCorp to the full extent of the terms thereof. WFI's liability with respect
to such equipment and materials obtained from vendors or services from
subcontractors shall be limited to procuring guarantees from such vendors or
subcontractors and rendering all reasonable assistance to TeleCorp as part of
the Site Development Services for the purpose of enforcing the same. WFI shall
not purchase equipment or materials or procure services without advance written
approval from TeleCorp of such purchases or procurements.
D. PERMITS
WFI shall (without additional compensation) keep current all
governmental permits, certificates, and licenses (including professional
licenses) required by law to be in WFI's name necessary to perform the Services.
E. PUBLICITY
WFI shall not make news releases or issue other advertising pertaining
to the Services or this Agreement without prior written approval of TeleCorp.
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<PAGE>
F. NOTICES
All notices or other communications hereunder shall be in writing and
shall be deemed to have been duly delivered and effective upon receipt if
personally delivered, or on mailing if mailed by prepaid overnight express
service, addressed to the following (or other addresses as the Parties may
designate):
If to TeleCorp, to: If to WFI, to:
TeleCorp Communications, Inc. Wireless Facilities, Inc.
1010 North Glebe Road 9805 Scranton Road
Suite 800 Suite 100
Arlington, Virginia 22201 San Diego, CA 92121
Attn: General Counsel and Attn: President and Vice President,
Vice President, Engineering Fixed Network Engineering
G. BINDING EFFECT
The Agreement shall be binding upon and enforceable by, and inure to
the benefit of, successors, assigns, and transferees of the Parties.
H. FURTHER ASSURANCES
The Parties shall execute and deliver such further instruments and
perform such further acts as may reasonably be required to carry out the intent
and purposes of this Agreement.
I. CHOICE OF LAW
The Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, excluding the conflict of law
provisions thereof.
J. WAIVER
The failure of either Party to insist upon strict performance of any
obligation hereunder, irrespective of the length of time for which such failure
continue, shall not be a waiver of such Party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of
any breach or default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
K. SEVERABILITY
In case any term of this Agreement shall be held invalid, illegal, or
unenforceable in whole or in part, neither the validity of the remaining part of
such term nor the validity of the remaining terms of this Agreement shall in any
way be affected thereby.
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<PAGE>
L. HEADINGS
All section and paragraph titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the text of
this Agreement.
M. PRONOUNS
All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular, or plural as the context may require.
N. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which shall be considered an original and all of which taken together shall
constitute one and the same instrument.
O. MODIFICATION; AMENDMENT; ADDITIONAL SERVICES
This Agreement may be amended only by a written instrument executed by
an officer or authorized representative of each of the Parties. In the event
that the Parties, at any time, desire WFI to provide services other than the
types of those provided for in this Agreement, then, at such time, the Parties
shall execute additional Work Orders describing such services and the payment to
be made therefor in a manner substantially similar to the manner in which
Services and payment for Services are presently described in existing Work
Orders. In the event that the Parties so amend this Agreement, the Agreement,
as amended, shall continue in full force and effect thereafter.
P. CONSTRUCTION OF AGREEMENT
This Agreement shall be interpreted according to its plain meeting and
shall not be strictly construed against either Party.
Q. FORCE MAJEURE
If the performance of any part of this Agreement, except for payment
obligations, by either Party is delayed, rendered impossible by reason of
natural disaster, acts of god, actions or decrees of governmental bodies, power
or equipment failures, strike or labor unrest, or any other causes beyond the
control of the Party whose performance is affected (hereinafter referred to as
"Force Majeure Event"), the Party who has been so affected shall immediately
give written notice to the other Party of the nature of any such conditions and
the extend of delay and shall do everything possible to resume performance
hereunder whenever such Force Majeure Event is removed or ceases. Upon receipt
of such notice, performance of this Agreement, except for payment obligations,
to the extent prevented by Force Majeure Event shall immediately be suspended.
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<PAGE>
R. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with
respect to the subject matters addressed, and shall supersede any and all prior
negotiations, undertakings, and agreements with respect hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
Effective Date.
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
Name: /s/ Thomas H. Sullivan Name: /s/ Masood K. Tayebi
-------------------------- ------------------------
Thomas H. Sullivan
Title: President Title: President
------------------------- -----------------------
Date: 10/12/99 Date: 10/6/99
-------------------------- ------------------------
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<PAGE>
Schedule A
----------
Assignment of Search Rings
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***]
[***] 10/20/97 LTR001 [***]
[***] 10/20/97 LTR002 [***]
[***] 10/20/97 LTR003 [***]
[***] 10/20/97 LTR004 [***]
[***] 10/20/97 LTR005 [***]
[***] 11/19/97 LTR006 [***]
[***] 10/20/97 LTR007 [***]
[***] 10/20/97 LTR008 [***]
[***] 10/20/97 LTR009 [***]
[***] 10/20/97 LTR010 [***]
[***] 11/20/97 LTR011 [***]
[***] 10/20/97 LTR012 [***]
[***] 10/20/97 LTR013 [***]
[***] 10/20/97 LTR014 [***]
[***] 11/20/97 LTR015 [***]
[***] 10/19/97 LTR018 [***]
[***] 10/20/97 LTR019 [***]
[***] 10/20/97 LTR020 [***]
[***] 11/20/97 LTR021 [***]
[***] 10/20/97 LTR022 [***]
[***] 11/20/97 LTR023 [***]
[***] 2/2/98 LTR024 [***]
[***] 11/19/97 LTR025 [***]
[***] 11/19/97 LTR026 [***]
[***] 11/20/97 LTR027 [***]
[***] 11/19/97 LTR028 [***]
[***] 10/20/97 LTR029 [***]
[***] 11/20/97 LTR030 [***]
[***] 11/19/97 LTR031 [***]
[***] 11/19/97 LTR032 [***]
[***] 11/19/97 LTR033 [***]
[***] 11/20/97 LTR034 [***]
[***] 11/20/97 LTR035 [***]
[***] 11/19/97 LTR036 [***]
[***] 10/20/97 LTR037 [***]
[***] 11/19/97 LTR038 [***]
[***] 11/19/97 LTR039 [***]
[***] 11/19/97 LTR041 [***]
[***] 1/21/98 LTR042 [***]
[***] 11/19/97 LTR043 [***]
</TABLE>
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* Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/19/97 LTR044 [***]
[***] 11/19/97 LTR045 [***]
[***] 11/19/97 LTR046 [***]
[***] 11/20/97 LTR047 [***]
[***] 11/19/97 LTR048 [***]
[***] 11/19/97 LTR049 [***]
[***] 11/19/97 LTR050 [***]
[***] 11/19/97 LTR051 [***]
[***] 10/20/97 LTR052 [***]
[***] 11/19/97 LTR053 [***]
[***] 11/19/97 LTR055 [***]
[***] 11/20/97 LTR056 [***]
[***] 11/20/97 LTR057 [***]
[***] 11/20/97 LTR058 [***]
[***] 11/20/97 LTR059 [***]
[***] 11/19/97 LTR060 [***]
[***] 11/19/97 LTR063 [***]
[***] 11/20/97 LTR065 [***]
[***] 11/20/97 LTR070 [***]
[***] 11/20/97 LTR071 [***]
[***] 11/20/97 LTR072 [***]
[***] 11/19/97 LTR073 [***]
[***] 11/19/97 LTR074 [***]
[***] 2/2/98 LTR075 [***]
[***] 2/2/98 LTR076 [***]
[***] 2/2/98 LTR077 [***]
[***] 11/19/97 LTR090 [***]
[***] 11/19/97 LTR091 [***]
[***] 11/19/97 LTR092 [***]
[***] 11/19/97 LTR093 [***]
[***] 11/25/97 LTR100 [***]
[***] 11/25/97 LTR101 [***]
[***] 11/25/97 LTR102 [***]
[***] 11/25/97 LTR103 [***]
[***] 11/25/97 LTR104 [***]
[***] 11/25/97 LTR105 [***]
[***] 11/25/97 LTR106 [***]
[***] 11/25/97 LTR107 [***]
[***] 2/2/98 LTR108 [***]
[***] 2/2/98 LTR109 [***]
</TABLE>
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*Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/25/97 LTR140 [***]
[***] 11/25/97 LTR142 [***]
[***] 11/25/97 LTR143 [***]
[***] 11/25/97 LTR144 [***]
[***] 11/25/97 LTR145 [***]
[***] 11/25/97 LTR146 [***]
[***] 11/25/97 LTR147 [***]
[***] 11/25/97 LTR148 [***]
[***] 11/25/97 LTR149 [***]
[***] 11/25/97 LTR150 [***]
[***] 11/25/97 LTR151 [***]
[***] 11/25/97 LTR152 [***]
[***] 11/25/97 LTR153 [***]
[***] 11/25/97 LTR154 [***]
[***] 2/3/98 LTR155 [***]
[***] 2/3/98 LTR156 [***]
[***] 11/20/97 LTR200 [***]
[***] 11/20/97 LTR215 [***]
[***] 11/20/97 LTR216 [***]
[***] 11/20/97 LTR217 [***]
[***] 11/20/97 LTR218 [***]
[***] 11/20/97 LTR219 [***]
[***] 11/25/97 LTR252 [***]
[***] 11/20/97 LTR270 [***]
[***] 11/20/97 LTR271 [***]
[***] 11/19/97 LTR272 [***]
[***] 2/4/98 LTR280 [***]
[***] 2/4/98 LTR285 [***]
[***] 10/21/97 MEM001 [***]
[***] 10/21/97 MEM002 [***]
[***] 10/21/97 MEM003 [***]
[***] 11/20/97 MEM004 [***]
[***] 11/20/97 MEM005 [***]
[***] 10/21/97 MEM006 [***]
[***] 10/21/97 MEM007 [***]
[***] 10/21/97 MEM008 [***]
[***] 12/10/97 MEM009 [***]
[***] 11/21/97 MEM010 [***]
[***] 11/21/97 MEM011 [***]
[***] 11/21/97 MEM012 [***]
[***] 11/20/97 MEM013 [***]
</TABLE>
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*Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 10/21/97 MEM014 [***]
[***] 10/15/97 MEM015 [***]
[***] 10/15/97 MEM016 [***]
[***] 10/21/97 MEM017 [***]
[***] 12/10/97 MEM018 [***]
[***] 11/20/97 MEM019 [***]
[***] 10/21/97 MEM020 [***]
[***] 11/21/97 MEM021 [***]
[***] 11/20/97 MEM022 [***]
[***] 10/21/97 MEM023 [***]
[***] 10/21/97 MEM024 [***]
[***] 10/21/97 MEM025 [***]
[***] 11/20/97 MEM026 [***]
[***] 10/21/97 MEM027 [***]
[***] 11/20/97 MEM028 [***]
[***] 11/20/97 MEM029 [***]
[***] 10/21/97 MEM030 [***]
[***] 12/10/97 MEM031 [***]
[***] 11/20/97 MEM032 [***]
[***] 11/20/97 MEM033 [***]
[***] 10/21/97 MEM034 [***]
[***] 10/21/97 MEM035 [***]
[***] 10/15/97 MEM036 [***]
[***] 10/21/97 MEM037 [***]
[***] 11/25/97 MEM038 [***]
[***] 12/4/97 MEM-039 [***]
[***] 11/20/97 MEM-040 [***]
[***] 10/21/97 MEM041 [***]
[***] 11/20/97 MEM042 [***]
[***] 11/20/97 MEM043 [***]
[***] 1/21/97 MEM044 [***]
[***] 11/21/97 MEMF45 [***]
[***] 11/20/97 MEM046 [***]
[***] 1-/20/97 MEM047 [***]
[***] 11/20/97 MEMO48 [***]
[***] 10/21/97 MEM049 [***]
[***] 11/20/97 MEM050 [***]
[***] 11/21/97 MEM051 [***]
[***] 11/21/97 MEM052 [***]
[***] 11/20/97 MEM053 [***]
[***] 11/21/97 MEM054 [***]
[***] 11/20/97 MEM055 [***]
[***] 10/22/97 MEM056 [***]
[***] 11/25/97 MEM057 [***]
</TABLE>
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*Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/20/97 MEM058 [***]
[***] 11/25/97 MEM059 [***]
[***] 11/25/97 MEM060 [***]
[***] 11/25/97 MEM061 [***]
[***] 11/21/97 MEMU62 [***]
[***] 11/25/97 MEM063 [***]
[***] 11/20/97 MEM064 [***]
[***] 12/4/97 MEM065 [***]
[***] 11/20/97 MEM066 [***]
[***] 11/21/97 MEM067 [***]
[***] 11/21/97 MEM068 [***]
[***] 11/21/97 MEM069 [***]
[***] 11/21/97 MEM070 [***]
[***] 11/21/97 MEM071 [***]
[***] 11/20/97 MEM072 [***]
[***] 11/20/97 MEM073 [***]
[***] 11/20/97 MEM074 [***]
[***] 11/25/97 MEM075 [***]
[***] 11/21/97 MEM076 [***]
[***] 12/1/97 MEffO-77 [***]
[***] 12/1/97 MEM078 [***]
[***] 11/20/97 MEM079 [***]
[***] 11/21/97 MEM080 [***]
[***] 11/20/97 MEM081 [***]
[***] 11/20/97 MEMO82 [***]
[***] 12/1/97 MEM083 [***]
[***] 11/20/97 MEMO 87 [***]
[***] 12/1197 MEM088 [***]
[***] 11/25/97 NMM089 [***]
[***] 11/20/97 MEM090 [***]
[***] 12/1/97 MEM091 [***]
[***] 11/25/97 MEM092 [***]
[***] 12/1/97 MEM093 [***]
[***] 12/1/97 MEM094 [***]
[***] 12/1/97 MEM095 [***]
[***] 12/1/97 MEM096 [***]
[***] 12/1/97 MEM097 [***]
[***] 12/29/97 MEM098 [***]
[***] 12/1/97 MEM099 [***]
[***] 12/1/97 MEM100 [***]
[***] 12/1/97 MEM101 [***]
[***] 12/2/97 MEM102 [***]
[***] 12/2/97 MEM103 [***]
[***] 12/2/97 MEM104 [***]
</TABLE>
Page 21 of 90
* Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 12/2/97 MEM105 [***]
[***] 12/2/97 MEM108 [***]
[***] 11/20/97 MEM109 [***]
[***] 12/2/97 MEMI 10 [***]
[***] 11/20/97 MEMI 11 [***]
[***] 12/2/97 MEM 112 [***]
[***] 11/21/97 MEM 114 [***]
[***] 12/2/97 MEM 115 [***]
[***] 12/2/97 MEM 116 [***]
[***] 12/2/97 MEM 117 [***]
[***] 12/2/97 MEM 118 [***]
[***] 12/2/97 MEM 119 [***]
[***] 12/2/97 MEM120 [***]
[***] 12/2/97 MEM121 [***]
[***] 12/2/97 MEM122 [***]
[***] 12/2/97 MEM123 [***]
[***] 12/2/97 MEM124 [***]
[***] 12/2/97 MEM125 [***]
[***] 12/2/97 MEM126 [***]
[***] 12/2/97 MEM127 [***]
[***] 12/2/97 MEM128 [***]
[***] 12/2/97 MEM129 [***]
[***] 12/2/97 MEM130 [***]
[***] 12/2/97 MEM131 [***]
[***] 12/2/97 MEM132 [***]
[***] 12/2/97 MEM133 [***]
[***] 12/2/97 MEM134 [***]
[***] 11/20/97 MEM135 [***]
[***] 11/21/97 MEM136 [***]
[***] 11/25/97 MEM137 [***]
[***] 11/25/97 MEM138 [***]
[***] 11/21/97 MEM139 [***]
[***] 11/25/97 MEM140 [***]
[***] 12/11/97 MEM141 [***]
[***] 12/11/97 MEM142 [***]
[***] 12/11/97 MEM143 [***]
[***] 12/19/97 MEM144 [***]
[***] 12/19/97 MEM145 [***]
[***] 12/19/97 MEM146 [***]
[***] 12/19/97 MEM147 [***]
[***] 12/19/97 MEM148 [***]
</TABLE>
Page 22 of 90
* Confidential treatment requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 12/19/97 MEM149 [***]
[***] 12/3/97 MEM150 [***]
[***] 12/3/97 MEM151 [***]
[***] 12/3/97 MEM152 [***]
[***] 12/3/97 MEM153 [***]
[***] 12/3/97 MEM154 [***]
[***] 12/3/97 MEM155 [***]
[***] 12/19/97 MEM156 [***]
[***] 12/19/97 MEM157 [***]
[***] 1/13/98 MEM158 [***]
[***] 1/13/98 MEM159 [***]
[***] 10/17/97 HYN001 [***]
[***] 10/17/97 HYNO02 [***]
[***] 10/17/97 HYNO03 [***]
[***] 10/17/97 HYNO04 [***]
[***] 10/17/97 YNO05 [***]
[***] 10/17/97 YNO06 [***]
[***] 10/17/97 YNO07 [***]
[***] 10/17/97 YNO08 [***]
[***] 10/17/97 YNO09 [***]
[***] 10/17/97 YN010 [***]
[***] 10/17/97 YN011 [***]
[***] 11/21/97 YNO12 [***]
[***] 10/17/97 YNO13 [***]
[***] 10/17/97 YNO15 [***]
[***] 10/17/97 YNO16 [***]
[***] 10/17/97 YNO19 [***]
[***] 10/17/97 YN020 [***]
[***] 11/21/97 YN021 [***]
[***] 11/21/97 HYN022 [***]
[***] 11/21/97 HYN02T [***]
[***] 11/21/97 HYN024 [***]
[***] 11/21/97 HYN025 [***]
[***] 11/21/97 HYN026 [***]
[***] 11/21/97 HYN027 [***]
[***] 11/21/97 HYN028 [***]
[***] 11/21/97 HYN029 [***]
[***] 11/21/97 HYN030 [***]
[***] 10/17/97 HYN101 [***]
[***] 10/17/97 HYN102 [***]
</TABLE>
Page 23 of 90
*Confidential Treatment Requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 10/17/97 HYN 103 [***]
[***] 10/17/97 FIYN104 [***]
[***] 10/17/97 HYN105 [***]
[***] 10/17/97 HYN106 [***]
[***] 10/17/97 HYN 107 [***]
[***] 10/17/97 HYN108 [***]
[***] 11/21/97 HYN 109 [***]
[***] 11/21/97 HYN110 [***]
[***] 11/20/97 HYNI I I [***]
[***] 11/20/97 HYN 112 [***]
[***] 11/20/97 HYN113 [***]
[***] 11/20/97 HYN 114 [***]
[***] 11/21/97 HYN 115 [***]
[***] 11/20/97 HYN 116 [***]
[***] 11/21/97 HYN 117 [***]
[***] 11/21/97 HYN 118 [***]
[***] 10/17/97 WOR007 [***]
[***] 10/17/97 WOR008 [***]
[***] 10/17/97 WOR009 [***]
[***] 10/17/97 WOR010 [***]
[***] 10/17/97 WOR011 [***]
[***] 10/17/97 WOR012 [***]
[***] 10/17/97 WOR013 [***]
[***] 10/17/97 WOR014 [***]
[***] 10/17/97 WOR016 [***]
[***] 10/17/97 WOR017 [***]
[***] 10/17/97 WOR018 [***]
[***] 10/17/97 WOR019 [***]
[***] 10/17/97 WOR026 [***]
[***] 10/17/97 WOR027 [***]
[***] 10/17/97 WOR117 [***]
[***] 10/17/97 WOR118 [***]
[***] 10/17/97 WOR119 [***]
[***] 10/17/97 WOR120 [***]
[***] 10/17/97 WOR130 [***]
[***] 10/17/97 WOR143 [***]
[***] 10/17/97 WOR145 [***]
[***] 10/17/97 WOR146 [***]
[***] 10/17/97 WOR148 [***]
[***] 10/17/97 WOR156 [***]
[***] 10/17/97 WOR163 [***]
[***] 10/17/97 WOR164 [***]
</TABLE>
Page 24 of 90
*Confidential Treatment Requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 10/17/97 WOR186 [***]
[***] 10/17/97 WOR187 [***]
[***] 12/18/97 WOR188 [***]
[***] 10/17/97 WOR191 [***]
[***] 12/18/97 WOR192 [***]
[***] 10/17/97 WOR193 [***]
[***] 10/17/97 WOR194 [***]
[***] 10/17/97 WOR195 [***]
[***] 10/17/97 WOR196 [***]
[***] 10/17/97 WOR197 [***]
[***] 11/21/97 NAS001 [***]
[***] 11/21/97 NAS002 [***]
[***] 11/21/97 NAS003 [***]
[***] 11/21/97 NAS004 [***]
[***] 11/21/97 NAS005 [***]
[***] 11/21/97 NAS006 [***]
[***] 11/21/97 NAS007 [***]
[***] 11/21/97 NAS009 [***]
[***] 11/21/97 NAS013 [***]
[***] 11/21/97 NAS014 [***]
[***] 11/21/97 NAS021 [***]
[***] 11/21/97 NAS022 [***]
[***] 11/21/97 NAS023 [***]
[***] 11/21/97 NAS024 [***]
[***] 11/21/97 NAS025 [***]
[***] 11/21/97 NAS026 [***]
[***] 11/21/97 NAS027 [***]
[***] 11/21/97 NAS028 [***]
[***] 11/21/97 NAS029 [***]
[***] 11/21/97 NAS030 [***]
[***] 11/21/97 NAS031 [***]
[***] 11/21/97 NAS042 [***]
[***] 11/21/97 NAS047 [***]
[***] 11/21/97 NAS051 [***]
[***] 11/21/97 NAS052 [***]
[***] 11/21/97 NAS056 [***]
[***] 11/21/97 NAS057 [***]
[***] 11/21/97 NAS058 [***]
[***] 11/21/97 NAS059 [***]
[***] 11/21/97 NAS061 [***]
[***] 11/21/97 NAS062 [***]
[***] 11/21/97 NAS063 [***]
</TABLE>
Page 25 of 90
*Confidential Treatment Requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/21/97 NAS064 [***]
[***] 11/21/97 NAS071 [***]
[***] 11/21/97 NAS073 [***]
[***] 11/21/97 NAS074 [***]
[***] 11/21/97 NAS076 [***]
[***] 11/21/97 NAS081 [***]
[***] 11/21/97 NAS082 [***]
[***] 11/21/97 NAS084 [***]
[***] 11/21/97 NAS101 [***]
[***] 11/21/97 NAS 102 [***]
[***] 11/21/97 NAS 103 [***]
[***] 11/21/97 NAS 105 [***]
[***] 11/21/97 NAS 107 [***]
[***] 11/21/97 NAS108 [***]
[***] 11/21/97 NAS109 [***]
[***] 11/21/97 NAS110 [***]
[***] 11/21/97 NAS111 [***]
[***] 11/21/97 NAS 112 [***]
[***] 11/21/97 NAS 113 [***]
[***] 11/21/97 NAS 114 [***]
[***] 12/18/97 NAS 115 [***]
[***] 12/18/97 NAS120 [***]
[***] 11/21/97 NAS121 [***]
[***] 11/21/97 NAS122 [***]
[***] 11/21/97 NAS123 [***]
[***] 11/21/97 NAS124 [***]
[***] 11/21/97 NAS141 [***]
[***] 11/21/97 NAS142 [***]
[***] 11/21/97 NAS 143 [***]
[***] 11/21/97 NAS 144 [***]
[***] 11/21/97 NAS146 [***]
[***] 11/21/97 NAS 147 [***]
[***] 11/21/97 NAS148 [***]
[***] 11/21/97 NAS149 [***]
[***] 11/21/97 NAS150 [***]
[***] 11/21/97 NAS151 [***]
[***] 11/21/97 NAS152 [***]
[***] 11/21/97 NAS 153 [***]
[***] 11/21/97 NAS154 [***]
[***] 11/21/97 NAS171 [***]
[***] 11/21/97 NAS 172 [***]
[***] 11/21/97 NAS 173 [***]
</TABLE>
Page 26 of 90
*Confidential Treatment Requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/21/97 NAS 181 [***]
[***] 11/21/97 NAS 182 [***]
[***] 11/21/97 NAS183 [***]
[***] 11/21/97 NAS 184 [***]
[***] 11/21/97 NAS 199 [***]
[***] 10/20/97 BRG061 [***]
[***] 10/20/97 BRG062 [***]
[***] 11/21/97 BRG063 [***]
[***] 11/21/97 BRG064 [***]
[***] 10/20/97 BRG065 [***]
[***] 10/20/97 BRG066 [***]
[***] 11/21/97 BRG067 [***]
[***] 10/20/97 BRG068 [***]
[***] 12/1/97 BRG069 [***]
[***] 11/21/97 BRG070 [***]
[***] 12/1/97 BRG072 [***]
[***] 10/20/97 BRG073 [***]
[***] 10/20/97 BRG074 [***]
[***] 10/20197 BRG075 [***]
[***] 12/1/97 BRG076 [***]
[***] 12/1/97 BRG077 [***]
[***] 11/21/97 BRG079 [***]
[***] 11/21/97 BRG117 [***]
[***] 11/21/97 BRG118 [***]
[***] 11/21/97 BRG136 [***]
[***] 11/21/97 BRG137 [***]
[***] 11/20/97 BRG138 [***]
[***] 12/1/97 BRG139 [***]
[***] 10/20/97 BRG140 [***]
[***] 10/20/97 BRG141 [***]
[***] 10/20/97 BRG142 [***]
[***] 10/20/97 BRG143 [***]
[***] 10/20/9 BRG144 [***]
[***] 11/21/97 BRG145 [***]
[***] 11/21/97 BRG146 [***]
[***] 11/21/97 BRG147 [***]
[***] 11/21/97 BRG148 [***]
[***] 10/20/97 BRG149 [***]
[***] 11/21/97 BRG150 [***]
[***] 11/21/97 BRG151 [***]
</TABLE>
Page 27 of 90
*Confidential Treatment Requested
<PAGE>
<TABLE>
<CAPTION>
Market Date Issued Search Ring Number Site Name
<S> <C> <C> <C>
[***] 11/21/97 BRG153 [***]
[***] 11/21/97 BRG154 [***]
[***] 11/21/97 BRG155 [***]
[***] 12/1/97 BRG157 [***]
[***] 11/21/97 BRG158 [***]
[***] 12/1/97 BRG181 [***]
[***] 12/1/97 BRG205 [***]
[***] 12/1/97 BRG206 [***]
[***] 10/20/97 HMA051 [***]
[***] 10/20/97 HMA052 [***]
[***] 10/20/97 HMA053 [***]
[***] 10/20/97 HMA120 [***]
[***] 10/20/97 HMA121 [***]
[***] 10/20/97 HMA122 [***]
[***] 10/20/97 HMA127 [***]
[***] 10/20/97 HMA128 [***]
[***] 11/21/97 HMA186 [***]
[***] 11/21/97 LAF082 [***]
[***] 11/21/97 LAF083 [***]
[***] 11/21/97 LAF085 [***]
[***] 11/21/97 LAF086 [***]
[***] 11/21/97 LAF087 [***]
[***] 11/21/97 LAF088 [***]
[***] 11/21/97 LAF089 [***]
[***] 11/21/97 LAF090 [***]
[***] 11/21/97 LAF091 [***]
[***] 11/21/97 LAF163 [***]
[***] 11/21/97 LAF164 [***]
[***] 11/21/97 LAF165 [***]
[***] 11/21/97 LAF169 [***]
[***] 11/21/97 LAF172 [***]
[***] 11/21/97 LAF173 [***]
[***] 11/21/97 LAF174 [***]
[***] 10/20/97 NOR001 [***]
[***] 10/20/97 NOR002 [***]
[***] 10/20/97 NOR003 [***]
[***] 10/20/97 NOR004 [***]
[***] 10/20/97 NOR005 [***]
[***] 10/20/97 NOR006 [***]
[***] 10/20/97 NOR007 [***]
[***] 11/24/97 NOR008 [***]
[***] 12/1/97 NOR009 [***]
[***] 12/1/97 NOR010 [***]
[***] 10/20/97 NOR011 [***]
</TABLE>
Page 28 of 90
*Confidential Treatment Requested
<PAGE>
SCHEDULE B
----------
TO THE
AMENDED AND REVISED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
[INTENTIONALLY DELETED]
Page 29 of 90
<PAGE>
SCHEDULE C
----------
TO THE
AMENDED AND REVISED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
Initial Frequency Blocks
- ------------------------
<TABLE>
<CAPTION>
MTA BTA
NUMBER MTA NAME NUMBER BTA NAME
- ----------------------------------------------- -----------------------------------------------
<S> <C> <C> <C>
[***] [***] [***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***] [***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***] [***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***] [***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***]
- ----------------------------------------------- -----------------------------------------------
[***] [***]
- ----------------------------------------------- -----------------------------------------------
</TABLE>
[***]MTA
---
[***] [***]
- -----------------------------------------------
[***] [***]
- -----------------------------------------------
[***] [***]
- -----------------------------------------------
[***] [***]
- -----------------------------------------------
C BLOCK
- -------
<TABLE>
<CAPTION>
BTA TELECORP MARKET
NUMBER BTA NAME NUMBER
- -----------------------------------------------------------------------------------
<S> <C> <C>
[***] [***] 1
- -----------------------------------------------------------------------------------
[***] [***] 1
- -----------------------------------------------------------------------------------
[***] [***] 1
- -----------------------------------------------------------------------------------
[***] [***] 2
- -----------------------------------------------------------------------------------
[***] [***] 2
- -----------------------------------------------------------------------------------
[***] [***] 3
- -----------------------------------------------------------------------------------
[***] [***] 4
- -----------------------------------------------------------------------------------
</TABLE>
Page 30 of 90
<PAGE>
SCHEDULE D
----------
TO THE
AMENDED AND REVISED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
[INTENTIONALLY DELETED]
Page 31 of 90
<PAGE>
SCHEDULE E
-----------
Responsibility Matrix
----------------------
WFI shall be responsible for performance of the following:
RF ENGINEERING SUPPORT
- ----------------------
1. Identify, qualify and secure real estate for radio base station sites.
2. Perform field site visits in conjunction with RF Engineers to specify
antenna mounting locations and antenna downtilts.
3. Review base station construction drawings.
4. Spectrum clearing.
BASE STATION SITE CONSTRUCTION
- ------------------------------
1. Management of Architectural/Engineering design for site.
2. Use layout drawings to prepare Bill of Material. Furnish Bill of Material
to Owner.
3. Ensure that ground provided to minicell meets National Electrical Code
Article 250.
4. Preparation of tender documents for site construction bids.
5. Application for building permits
6. Evaluation of construction bids.
7. Negotiations with bidders.
8. Placing orders to contractors.
9. Furnish estimated "site ready for installation" date to vendor.
10. Surveyor verification of initial antenna orientations.
11. Check of site ready for installation.
12. Develop punch list of outstanding civil issues.
13. Supervision of site construction.
14. Auditing contractor invoices.
15. Acceptance of completed construction.
16. Owner representative at site-ready inspection.
Page 32 of 90
<PAGE>
17. Complete main feed line and antenna VSWR sweeps in compliance with
specifications.
18. After GA date, Install Vendor Provided DMAU.
SITE INSTALLATION/INTEGRATION
- -----------------------------
1. Arrange for site access during cell install and testing.
Page 33 of 90
<PAGE>
SCHEDULE F
----------
TO THE
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
Sample Work Order
-----------------
WORK ORDER NO.: ___
DATE: _________, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI
for the Services at the fixed rates per Site as set forth in Attachment B,
and shall reimburse WFI for expenses in accordance with Section IV of the
Agreement [OR in accordance with Attachment B].
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in
accordance with the schedule of Payment Milestones per Attachment B to this
Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement [OR as
set forth in Attachment B to this Work Order].
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services
(in accordance with the Deployment Schedule) immediately upon full
execution of this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
By: _________________________ By: ________________________
Name: _______________________ Name: ______________________
Title: ______________________ Title: _____________________
Date:________________________ Date:_______________________
Page 34 of 90
<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR FIRST PHASE PCS BUILD-OUT
----------------------------------------------------------------------
WORK ORDER NO.: 1
DATE: February 27, 1998
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and according to
the following terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI
for the Services at the fixed rates per Site as set forth in Attachment B,
and shall reimburse WFI for expenses in accordance with Section IV of the
Agreement.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in
accordance with the schedule of Payment Milestones per Attachment B to this
Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services
(in accordance with the Project Schedule) immediately upon full execution
of this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
[PREVIOUSLY EXECUTED AS PART OF THE ORIGINAL AGREEMENT]
Page 35 of 90
<PAGE>
Attachment A
------------
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR FIRST PHASE PCS BUILD-OUT
----------------------------------------------------------------------
A. SITE ACQUISITION SERVICES AND PROGRAM MANAGEMENT SERVICES - SCOPE OF WORK
In the course of building out the System, TeleCorp shall, based on its
System network grid, establish small geographic areas within which a cell site
or transmission tower shall be located, based on the network grid's RF design (a
"Search Ring"). TeleCorp will provide to WFI its System network grid, with the
established Search Rings overlaid thereon. TeleCorp will assign to WFI no less
than [***] Search Rings, via Schedule A attached to the Master Services
----------
Agreement, which shall be amended from time to time. At no time will the number
of Search Rings assigned to WFI on Schedule A drop below [***]. WFI shall
----------
provide the following services (all of which shall be hereinafter referred to
collectively as the "Site Acquisition Services") within the Search Rings for
TeleCorp, but WFI shall not be the exclusive provider thereof. With respect to
each Search Ring, WFI shall perform the following services:
1. Search Ring Background Workup. WFI shall prepare a zoning,
construction, and land use analysis of the geographic area
covered by each Search Ring, which will include, at a minimum:
a. Listing of all state and local jurisdictions;
b. Zoning process descriptions;
c. Zoning maps in both hardcopy and softcopy formats, to the extent
possible;
d. Zoning application forms, and estimates of necessary fees;
e. Zoning meeting schedules;
f. Sample construction and land use permit applications, forms,
estimates of necessary fees, identity of permitting authorities
and their various meeting schedules;
g. Contact information (name, address, affiliation, phone, e-mail and
fax) for key zoning, construction, and land use permitting
personnel;
h. Background report on community awareness, issues, and concerns
related to PCS infrastructure deployment;
i. Identified Federal Aviation Administration (FAA) restrictions; and
j. Identified environmental restrictions.
2. Site Identification, Acquisition, Zoning and Permitting
a. WFI shall identify at least two possible locations on which a cell
site or transmission tower could be located (a "Site") within each
Search Ring.
Page 36 of 90
CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
Each candidate Site shall be submitted to TeleCorp, which will
certify in writing to WFI whether each such Site meets TeleCorp's
requirements for cost, availability, ability to be zoned, ability
to be permitted, ability to be constructed and suitability to RF
engineering. Submission of the Site shall be made to the person
designated by TeleCorp from time to time. TeleCorp shall make such
certification within [***] business days of the Site's Submission.
b. WFI shall negotiate the purchase or lease of at least [***]
certified Site within each Search Ring. Purchase or lease terms
shall, upon completion of their negotiation by WFI, be submitted
to TeleCorp in writing, and TeleCorp shall accept or reject same,
in writing (acceptance may be by execution of documents presented,
if appropriate). Prior to the Closing, TeleCorp shall not be
obligated to accept or reject such terms within a particular time
frame, or at all, but after the Closing, TeleCorp shall accept or
reject such terms within [***] business days of submission to
TeleCorp by WFI.
c. As part of its Site identification efforts in a, above, WFI shall
make available to TeleCorp any Sites which it can offer on a bulk
basis or which have been screened as "friendly" Sites. WFI shall
present to TeleCorp a comprehensive database of such Sites, and
shall indicate the availability and lease rate of each site.
Friendly Sites are collection structures such as buildings,
towers, water tanks, billboards, signs, rooftops, etc. that meet
TeleCorp's minimum required height and for which leases can be
secured, zoning can be obtained and construction of PCS Equipment
may be installed.
d. At the express written direction of TeleCorp, WFI shall order
title abstracts, coordinate a full title search, and/or obtain
title insurance for approved and accepted Sites.
e. At the express written direction of TeleCorp, WFI shall coordinate
a "Phase 1" or other environmental surveys for approved and
accepted Sites.
f. WFI shall obtain all land use permits and/or zoning variances
required for each approved and accepted site, if any are
necessary. If no approvals or variances are required, WFI shall
provide proof thereof. In connection with obtaining these
approvals and variances, WFI shall:
i. Submit complete zoning applications with all necessary
exhibits;
ii. At TeleCorp's request, attend necessary meetings, including
zoning hearings, planning meetings, and community meetings,
as a representative of TeleCorp;
iii. At TeleCorp's request, coordinate community outreach
programs, expert witness testimony, and other measures which
may be
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CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
required to assure the zoning, construction, and land use of
approved and accepted Sites; and
iv. Secure all required construction permits on behalf of
TeleCorp.
3. Documentation of Site Acquisition Services. WFI shall maintain a
comprehensive record (both hardcopy and electronic copy, when
possible) indexed by Site, which shall include the following elements,
at a minimum:
a. Site Survey Report for each of the Sites presented to TeleCorp for
approval in Section III.A.2.a. above, consisting of property name,
address, latitude, longitude, photos, site owner or property
manager contact information, and proposed lease rate or purchase
price;
b. For each of the approved and accepted sites, the fully executed
lease agreement or purchase document with all exhibits;
c. For each of the approved and accepted Sites, the copy of zoning,
construction, and land use applications and zoning variance
requests, if any, with all exhibits;
d. For each of the approved and accepted Sites, the copy of the land
use permits;
e. For each of the approved and accepted Sites, the Landlord approval
of construction plans, and other indicia of compliance with lease
terms; and
f. For each of the approved and accepted Sites, copy of the
construction permits.
4. Organizational Interfaces.
a. WFI shall work at the explicit direction of TeleCorp at all times.
WFI shall designate one or more points of contact, as it deems
efficient, in order to communicate effectively with TeleCorp. WFI
shall obtain TeleCorp's explicit approval before obligating
TeleCorp financially, contractually, or otherwise.
b. WFI shall coordinate the activities of the Architectural and
Engineering (A&E) firms during the site acquisition phase, to
include the development of site-specific drawings for landlord
approval and for zoning purposes.
c. WFI shall coordinate all site visits during the site acquisition
phase, to include at a minimum: site surveys, technical team
visits, drive tests, construction surveys, A&E surveys,
geotechnical surveys, and environmental surveys.
Page 38 of 90
<PAGE>
d. WFI shall work to ensure a smooth transition of site-related
activities from Site Acquisition to Construction Management.
e. WFI shall procure on behalf of TeleCorp required discretionary
(zoning, construction, and land use) entitlements and other
permits, including building permits required for completion of
Sites from state and local government authorities and from
agencies of the United States Government, other than the Federal
Communications Commission ("FCC").
f. WFI will work with the TeleCorp finance department to set up a
cost tracking and reporting system that meets the General Ledger
and Asset Management needs of TeleCorp. WFI will ensure that they
coordinate their accounting policies and procedures as they relate
to activity under this contract to ensure compliance and
compatibility (including, but not limited to, a seamless
electronic interface of data) with TeleCorp's finance department.
B. CONSTRUCTION MANAGEMENT AND PROGRAM MANAGEMENT SERVICES - SCOPE OF WORK
WFI shall perform the following services (all of which shall be
hereinafter referred to collectively as the "Construction Management Services")
for TeleCorp, for each site chosen within each of the Search Rings assigned via
Schedule A, (a "Schedule A Site") and for other sites for which WFI has not
- ----------
provided Site Acquisition Services. All sites for which WFI will perform
Construction Management Services shall hereinafter be referred to as the "CMS
Sites." The Construction Management Services to be performed by WFI are as
follows:
1. Sites for which WFI provided Site Acquisition Services. For all
-------------------------------------------------------
approved and accepted sites for which WFI's Site Acquisition Services
have been performed, WFI shall, as required by TeleCorp, continue its
work on such Sites by acting as the construction manager in the
capacity of general contractor to TeleCorp.
2. Sites for which WFI did not provide Site Acquisition Services. For
--------------------------------------------------------------
all Sites which are not Sites for which WFI has performed Site
Acquisition Services, and provided that such sites are presented to
WFI for Construction Management Services with all of the work
completed which WFI would have performed had it been engaged by
TeleCorp to perform Site Acquisition Services, then WFI shall act as
the construction manager in the capacity of general contractor to
TeleCorp for such sites. TeleCorp covenants that it will make
available the records and files of all previously performed site
acquisition work to WFI as WFI may reasonably request.
3. The Minimum Construction Management Services which WFI shall perform
include:
a. Awarding, via a bid process resulting in not less than [***] per
contract, contracts for the performance of soil tests,
Page 39 of 90
<PAGE>
geotechnical, plat and topographical surveys, investigation of
flood and water drainage issues, tower construction, foundations,
tenant improvement, grounds and landscaping, and thereafter
negotiating the terms of all such contracts, all of which shall be
entered into by WFI and the other contract party directly;
b. Upon completion of the foregoing negotiations, submitting these
contracts to TeleCorp in writing, which shall accept or reject
same, in writing (acceptance may be by execution of documents
presented, if appropriate, within [***] business days of
submission to TeleCorp by WFI.
c. Ordering and permitting access and delivery for the installation
of commercial electrical power.
d. Permitting access to, arranging for, scheduling accepting delivery
of telephone service as ordered to be installed by WFI.
e. Management and supervision of day-to-day construction activities,
including:
i. Site access preparation;
ii. Site preparation;
iii. Site excavation and leveling;
iv. Foundation construction;
v. Electrical connection, power, and grounding;
vi. Tower construction;
vii. Wind-load testing;
viii. Structural reinforcement;
ix. Antenna mounting and coaxial routing and mounting;
x. Placement of OEM equipment; and
xi. Safety and OSHA compliance.
4. WFI Operating Standards.
------------------------
a. All construction activities shall fully comply with TeleCorp's
standards for quality, as well as with all local, state, and
national codes and laws.
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CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
b. WFI shall coordinate the performance of geotechnical, plat and
topographical surveys. WFI shall coordinate the investigation of
flood and drainage issues.
c. WFI shall present and fully implement a comprehensive safety
program. WFI shall demonstrate its corporate safety record. WFI
shall document and report safety hazards, environmental concerns,
and other abnormal situations immediately.
5. Subcontractor and Supplier Management.
--------------------------------------
a. WFI shall select all subcontractors and suppliers. WFI shall
develop subcontractor and supplier selection standards. WFI shall
implement a subcontractor and supplier election process that
reflects the best interests of TeleCorp at all times.
b. WFI shall maintain full responsibility to TeleCorp for quality,
cost, delivery, and performance of all subcontractor and supplier
goods and services.
6. Materials Management. WFI shall provide all construction materials
---------------------
with the exception of PCS equipment. WFI shall identify all long-lead
parts and materials to take appropriate action to ensure that these
items are obtained without adverse impact to TeleCorp's cost or
schedule objectives. WFI shall select, order, and track all material
purchases.
7. Final Deliverables. As the final deliverable of its Construction
-------------------
Management Services, WFI shall deliver to TeleCorp a written Close-out
Report for each CMS site within [***] days of completion, which shall
include a thorough and fully approved close out package of all Sites.
Close out activities shall include, but are not limited to final
inspection, punch list development and resolution, and final walk-
through and inspection with TeleCorp. WFI shall not have completed
close out until it has received notice from TeleCorp of completed
close out following final walk-through and inspection, which notice
shall not be unreasonably withheld, but in any event shall be within
[***] business days of final walkthrough and inspection.
8. Documentation of Construction Management Service. WFI shall maintain
-------------------------------------------------
comprehensive records for each site for which it performs Construction
Management Services, indexed by CMS Site, which shall include the
following, at a minimum:
a. land use permit;
b. construction and related permit;
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CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
c. current construction status; and
d. detailed financial accounting records, including but not limited
to approved purchase orders price quotations and selections
criteria, and verification of goods or services received.
9. Organizational Interfaces.
--------------------------
a. WFI shall work at the explicit direction of TeleCorp at all times.
WFI shall designate one or more points of contact, as it deems
efficient, in order to communicate effectively with TeleCorp. WFI
shall obtain TeleCorp's explicit prior written approval before
obligating TeleCorp financially, contractually, or otherwise.
b. WFI shall coordinate the activities of the Architectural and
Engineering (A&E) firms during the construction phase, to include
ensuring that basic site drawings provided by TeleCorp are
tailored to the specific requirements of individual Sites.
c. WFI shall coordinate all site visits during the construction
phase, to include at a minimum: site surveys, technical team
visits, drive tests, construction surveys, architectural and
engineering surveys, geotechnical surveys, and environmental
surveys.
d. WFI will work with the TeleCorp finance department to set up a
cost tracking and reporting system that meets the General Ledger
and Asset Management needs of TeleCorp. WFI will ensure that they
coordinate their accounting policies and procedures as they relate
to activity under this contract to ensure compliance and
compatibility (including, but not limited to, a seamless
electronic interface of data) with TeleCorp's finance department.
e. WFI shall coordinate its Construction Management Services with
TeleCorp to insure that each Site delivered by WFI pursuant to the
terms of this Agreement shall be ready for delivery and
installation of equipment in accordance with TeleCorp's equipment
vendor contracts, and that all conditions to such equipment
vendor's installation of equipment and performance of services on
a Site, attributed to WFI on the responsibility Matrix set forth
on Schedule E hereto, shall have been fulfilled. No site shall be
----------
deemed completed unless it has been delivered to TeleCorp in
accordance with the terms of this Section B.9.e.
Page 42 of 90
<PAGE>
C. PROGRAM MANAGEMENT SERVICES
In connection with, and as a tracking and indexing mechanism for its
provision of Site Acquisition and Construction Management Services pursuant to
this Agreement, WFI shall develop, implement and maintain a deployment plan (the
"Deployment Plan") which tracks all activities and costs associated with the
performance of Site Acquisition Services and Construction Management Services
for each Site. The Deployment Plan is:
1. WFI shall develop and implement a quality assurance program, which
ensures that all activities are performed to the highest quality
standards.
2. WFI shall develop and implement a comprehensive cost accounting system
compatible with TeleCorp's financial systems that includes, at a
minimum: procedures for conducting financial transactions; financial
tracking and management; and comprehensive financial reporting.
3. WFI shall develop and implement comprehensive reporting mechanisms so
that detailed site progress is tracked on a daily basis, and complete
reports are provided when required by TeleCorp, not less frequently
than once per week.
4. WFI shall develop and implement a comprehensive filing system that
ensures that all relevant site information is organized and available.
WFI shall seek to use electronic means whenever possible. WFI shall
ensure the physical security of the filing system.
5. WFI shall manage and coordinate interaction among site acquisition,
construction, management, and the A&E firm. WFI shall ensure that
both formal and informal communications among these disciplines are
effective and in the best interests of TeleCorp.
6. WFI shall manage and coordinate interactions between the
infrastructure development staff (site acquisition and construction
management) and other disciplines involved in the system deployment
(e.g., RF engineering, network engineering, marketing). WFI shall
ensure that both formal and informal communications among these
disciplines are effective and in the best of interests of TeleCorp.
Page 43 of 90
<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR FIRST PHASE PCS BUILD-OUT
----------------------------------------------------------------------
Site Acquisition and Program Management Services Fees
a. Per Site Fees for Site Acquisition.
----------------------------------
In consideration for performance of the Site Acquisition,
TeleCorp shall pay WFI $[***]per site, in the manner set forth
below:
<TABLE>
<CAPTION>
Milestone Amount Due
- -----------------------------------------------------------------------------------------
<S> <C>
Upon RF approval of a completed Site Survey Report $[***]
- -----------------------------------------------------------------------------------------
Upon fully executed lease or purchase agreement for a site $[***]
- -----------------------------------------------------------------------------------------
Upon issuance of a building permit or equivalent approval $[***]
- -----------------------------------------------------------------------------------------
Total amount due upon completion of Site Development $[***]per Site
Services
- -----------------------------------------------------------------------------------------
</TABLE>
b. Per Site fees for Program Management Services. In consideration
---------------------------------------------
for performance of the Program Management Services, TeleCorp
shall pay WFI, $[***] per site, $[***] upon [***], and $[***]
upon completion of construction and final acceptance by TeleCorp
of such Site.
<TABLE>
<CAPTION>
Milestone Amount Due
- -----------------------------------------------------------------------------------------
<S> <C>
Upon issuance of a building permit or equivalent approval $[***]
- -----------------------------------------------------------------------------------------
Upon completion of construction and final acceptance by TeleCorp $[***]
of such site
- -----------------------------------------------------------------------------------------
Total amount due upon completion of Site Development $[***] per Site
Services
- -----------------------------------------------------------------------------------------
</TABLE>
c. Reimbursement for Per Site Advances.
------------------------------------
i. Non-Reimbursable Costs. WFI's compensation for the Site
Acquisition Services shall be inclusive of customary out-of-
pocket expenses incurred by WFI in the performance of its
obligations hereunder ("Per Site Fee"), including, without
limitation;
(a) Wireless equipment and services;
(b) field expenses for maps, deeds, and film development;
(c) vehicle expense; and
(d) travel and living expenses.
Any extraordinary or other expenses that WFI should
reasonably anticipate incurring, Which are not customarily
incurred in the
Page 44 of 90
CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
ordinary course of business, must be pre-approved by
TeleCorp in order for WFI to receive reimbursement for such
expenditures.
ii. Reimbursable Costs. In the event that WFI contracts directly
-------------------
with third parties, trade contractors and subcontractors in
connection with its provision of Services, the following
expenses (in addition to other expenses which the Parties may
agree to from time to time) shall be considered pass through
costs and be reimbursed to WFI to the extent not paid
directly by TeleCorp in accordance with IV(a) above,
provided, however, that TeleCorp shall be obligated to
reimburse expenses incurred by WFI only with respect to which
WFI had received express written direction from TeleCorp.:
(a) [***];
(b) [***];
(c) [***] and [***];
(d) [***];
(e) [***];
(f) [***];
(g) [***]and [***];
(h) [***];
(i) [***], including [***];
(j) [***];
(k) [***];
(i) [***] and [***];
(m) [***];
(n) [***];
Page 45 of 90
CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
(o) [***];
(p) [***];
(q) [***];
(r) [***]including [***];
(s) [***];
(t) [***];
(u) [***]and [***];
(w) [***];
(x) [***];
(y) [***];
(z) [***]; and
(aa) [***]and [***].
d. [Intentionally Deleted]
e. [Intentionally Deleted]
f. Additional Services. In the event [***], TeleCorp shall [***]. In
--------------------
no event shall [***], based on [***].
g. Statements. WFI shall provide TeleCorp with statements showing
-----------
in reasonable detail the calculation of the Per Site Fees earned
during the last calendar month not more than thirty (30) calendar
days following the end of each calendar
Page 46 of 90
CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
month. The Per Site Fee shall be paid by TeleCorp to WFI within
thirty (30) days following such submission of invoices by WFI
unless disputed by TeleCorp as provided below.
2. Construction Management and Program Management Services Fees.
a. Per CMS Site Fees. In consideration for performance of the
------------------
Construction Management Services ("CMS"), TeleCorp shall pay WFI
$[***] per Site in the manner set forth below.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
Milestones Amount Due
- -----------------------------------------------------------------------------------------
<S> <C>
Upon the commencement of construction on the CMS Site $[***]
- -----------------------------------------------------------------------------------------
Final Acceptance of civil construction on the CMS Site $[***]
- -----------------------------------------------------------------------------------------
Total amount due per CMS Site upon completion of Construction $[***]
Management Services
- -----------------------------------------------------------------------------------------
</TABLE>
The aggregate amount of the milestone payments to WFI for the Construction
Management Services delivered to TeleCorp shall be $[***] per CMS Site.
Page 47 of 90
* Confidential treatment requested
<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR MICROWAVE RELOCATION SERVICES FOR INITIAL FREQUENCY BLOCKS
-------------------------------------------------------------------------
WORK ORDER NO.: 2
DATE: February 27, 1998
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and according to
the following terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI for
the Services at the fixed rates per Site as set forth in Attachment B, and
shall reimburse WFI for expenses in accordance with Section IV of the
Agreement.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Attachment B.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services (in
accordance with the Project Schedule) immediately upon full execution of
this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
[PREVIOUSLY EXECUTED AS PART OF THE ORIGINAL AGREEMENT]
Page 48 of 90
<PAGE>
ATTACHMENT A
------------
WORK ORDER FOR MICROWAVE RELOCATION SERVICES FOR INITIAL FREQUENCY BLOCKS
-------------------------------------------------------------------------
MICROWAVE RELOCATION SERVICES - SCOPE OF WORK
WFI, utilizing the Comsearch IQ Clear spectrum-sharing tool, procured
and provided by WFI, will supply to TeleCorp labor, services, resources, and
consultation necessary to perform microwave relocation and spectrum clearing
services ("Microwave Relocation Services"). The Microwave Relocation Services
include Spectrum Sharing Engineering Study and Analysis and Initial Market
Assessment, Drive Test Frequency Selection, and Prior Coordination Notices. The
Microwave Relocation Services also include Negotiations and Program Management
for the relocation of interfering paths.
1. SPECTRUM SHARING ENGINEERING STUDY AND ANALYSIS AND INITIAL MARKET
ASSESSMENT
WFI will perform spectrum-sharing studies, as required, for selected
frequency(ies), in each assigned BTA and frequency, based on either a
generic RF design or the design information provided by TeleCorp. WFI
will utilize the results of the analysis in performing the following
steps as required to complete assessment of interfering
paths/incumbents identified in the spectrum sharing study including
status and initial budgetary analysis for each path.
2. SERVICE DESCRIPTION
a. SPECTRUM SHARING ANALYSIS
WFI will perform spectrum-sharing studies, as required, for each
assigned BTA and frequency. The reiterative studies will be based
on RF design information provided by TeleCorp, and will identify
all microwave paths that could affect or be affected by TeleCorp's
proposed PCS systems, based on FCC guidelines on interference
avoidance.
b. REVIEW AND CATALOG PATH DATA
Review information from the spectrum sharing analysis on a per
market and per incumbent basis for both co-channel and adjacent
channel paths. Information such as number of links, equipment and
modulation type, capacity, site names and locations for each path
will be logged for use during negotiations and relocation program
management.
c. PATH PRIORITIZATION
WFI will develop technical parameters for the interfering co- and
adjacent channel paths to establish negotiation and relocation
strategies and path priorities.
Page 49 of 90
<PAGE>
d. REVIEW OF INCUMBENT DATA
WFI will review incumbent system data on a per link basis and
compare the information against FCC database information to
determine whether the incumbent is operating on a primary status
with a current license.
e. PATH STATUS VERIFICATION AND INITIAL INCUMBENT ASSESSMENT
WFI will contact each incumbent to confirm database information,
verify path status, i.e. active, negotiated, or decommissioned. If
the incumbent has not entered into an agreement with another PCS
licensee, then WFI will assess the incumbent's willingness to
negotiate, identify strategic information, and discuss preliminary
relocation options.
f. ASSESSMENT OF PREVIOUSLY NEGOTIATED PATHS
WFI will attempt to obtain the terms and status of each relocation
agreement entered into between an incumbent and other PCS
licensee(s). WFI will attempt to obtain a copy of the agreement,
provided that it is not protected by a non-disclosure agreement.
WFI will determine whether the dates agreed upon in the relocation
agreement meet TeleCorp's requirements.
g. ESTIMATE COMPARABLE RELOCATION COSTS
Estimate relocation costs on a per incumbent and per market basis
for paths that are determined to be active or co-channel paths
that have been negotiated and/or relocated. Information such as
system type and architecture, number of links required to be
relocated, tower heights and typical system usage will be used to
develop the cost estimates.
h. ROUTE MAPPING
Develop route maps on a per incumbent and per market basis
delineating co-channel and adjacent channel active paths.
i. DRIVE TEST FREQUENCY SELECTION
WFI will complete the spectrum analysis and provide TeleCorp with
the require drive test frequencies for the assigned BTS locations
(if a non-interfering frequency is available).
j. PRIOR COORDINATION NOTICES
WFI will prepare Prior Coordination Notices (PCN(s)), mail PCNs to
incumbents and clearinghouses, and coordinate responses and
objections to PCNs, as required.
k. DELIVERABLES
WFI will provide TeleCorp with periodic reports containing the
following information:
Page 50 of 90
<PAGE>
i. Copies of FCC licenses for each identified path;
ii. Comparable cost documentation for each active path or for
each co-channel path which has been negotiated and/or
relocated;
iii. Detailed budgetary cost analysis on a per BTA and
frequency basis;
iv. Route maps;
v. Frequency relocation contract templates;
vi. Upon clearing of each region or market, WFI shall provide;
vii. Drive Test Frequencies as required; and
viii. Copies of Filed PCNs.
3. NEGOTIATIONS AND PROGRAM MANAGEMENT.
a. INTRODUCTORY MAILING.
WFI will identify the proper technical and negotiation contact for
each incumbent and send and introductory mailing packet containing
general information on microwave relocation and specific
information about TeleCorp and its proposed course of action.
b. NEGOTIATION PARAMETERS.
WFI will work with TeleCorp to develop negotiation parameters
acceptable to TeleCorp. These parameters should be established
prior to the commencement of negotiations so that settlements may
be negotiated expeditiously.
c. DEVELOPMENT OF NEGOTIATION STRATEGIES.
WFI will work with TeleCorp to develop optimal negotiation
strategies for each incumbent and market. These strategies will be
based upon the size and location of each incumbent's network,
considering whether the incumbent is present in multiple TeleCorp
markets, TeleCorp's priorities and its willingness to provide
various relocation alternatives.
d. INITIATE NEGOTIATIONS.
WFI will negotiate with incumbent to reach an agreement that
conforms to TeleCorp's relocation schedule and cost parameters.
e. ADDITIONAL NEGOTIATION AND FINALIZATION OF AGREEMENT FOR AMENDED
RELOCATION DATES.
If a path has been negotiated by another PCS licensee, but
the relocation date(s) are unacceptable to TeleCorp, then
WFI will initiate
Page 51 of 90
<PAGE>
negotiations with the incumbent, other PCS licensee(s) or both to
alter the unacceptable relocation dates and bring them into
conformity with TeleCorp's relocation priorities.
f. NEGOTIATION STRATEGY.
WFI will re-assess negotiation parameters and strategies as
required based on discussions with incumbents, additional
information obtained from incumbent meeting, and any modifications
to TeleCorp's deployment schedule.
g. CONTRACT TEMPLATES.
TeleCorp's inside counsel shall review and modify, as required,
the contract templates that WFI provides to TeleCorp. The parties
agree that these pre-approved contract templates are essential for
enabling WFI to conclude negotiations in an efficient and
expedient manner.
h. FINALIZE RELOCATION TERMS.
WFI will provide the proposed business terms to TeleCorp for
approval.
i. FINALIZE RELOCATION AGREEMENT.
Once TeleCorp has approved the business terms, WFI shall work with
TeleCorp's counsel to facilitate the negotiation and execution of
the final relocation agreement between TeleCorp and the incumbent.
j. FREQUENCY COORDINATION.
WFI will order frequency coordination. If required, WFI will
prepare the required FCC license applications for incumbent's
signature and submit such applications to the FCC.
k. DETAILED RELOCATION SYSTEM DESIGN.
WFI will order engineering services required to design and
engineer the microwave path including path and site surveys and
network system design.
l. THIRD PARTY PROPOSALS.
WFI will obtain and review third party proposals for equipment
and/or services, including but not limited to construction,
installation, testing and training and other services required to
implement the turnkey replacement and make a recommendation to
TeleCorp as to which proposal to accept.
m. TOWER STRESS AND FOUNDATION ANALYSIS.
WFI will order any required tower and foundation analyses. WFI
will coordinate and program-manage the entire process.
n. TOWER OPTIONS ANALYSIS.
WFI will review results of the tower and/or foundation analyses
and based on the recommendation made by the Supplier, determine
most
Page 52 of 90
<PAGE>
cost-effective option such as structural strengthening,
replacement, or alternate courses of action.
o. LEASED FACILITIES.
In the event that an incumbent transfers its operations to leased
facilities and requests TeleCorp's assistance in the transfer, WFI
will coordinate the transfer of the facilities to alternate leased
by the scheduled decommissioning date.
p. RELOCATION PLAN.
WFI will develop a relocation plan that sets forth detailed
relocation requirements including equipment procurement
requirements, time line requirements, system performance
requirements and detailed installation requirements. These
detailed installation requirements will include testing,
acceptance, and commissioning requirements.
q. INSTALLATION FEASIBILITY ANALYSIS.
WFI, in coordination with a third party equipment supplier and
installer will conduct an installation feasibility analysis in
order to identify detailed installation requirements and to ensure
that decommissioning objectives are met.
r. INSTALLATION OVERSIGHT.
WFI will supervise the installation of the replacement system to
ensure that the old system is decommissioned on schedule and that
the incumbent is satisfied with the installation of the
replacement system.
s. TOWER MODIFICATION OVERSIGHT.
WFI will monitor third party Suppliers' performance to encourage
timely completion of their obligations.
t. DOCUMENTATION REVIEW.
WFI will review "as-built" documentation prepared by third party
Suppliers, verify completion of third party supplier contractual
requirements, and recommend to TeleCorp to proceed with final
payment based on acceptance criteria.
u. INCUMBENT ACCEPTANCE.
WFI will obtain final incumbent acceptance of equipment and
facility installation. WFI will work toward incumbent's
satisfaction that the contractual obligations by TeleCorp and its
subcontractors (if applicable) have been met.
v. FINAL COST DOCUMENTATION.
WFI will provide TeleCorp with a final accounting of the costs
incurred to perform the turnkey relocation project.
Page 53 of 90
<PAGE>
w. MONITORING OF INCUMBENT'S PERFORMANCE OBLIGATIONS.
For paths that resulted in a cash transaction between Incumbent
and TeleCorp, WFI will monitor incumbent to encourage compliance
with contractual obligations and report such status to TeleCorp.
x. DECOMMISSIONING NOTIFICATION.
WFI will notify TeleCorp of completion of the relocation and
provide TeleCorp with copies of FCC Form 415s and/or FCC licenses
indicating that the 2 GHz frequencies have been removed and
decommissioned.
4. DOCUMENTATION FOR MICROWAVE RELOCATION SERVICES.
a. WFI will provide TeleCorp the following deliverables on a
per incumbent basis:
i. Signed offer letter;
ii. Executed contract between incumbent and TeleCorp;
iii. Periodic reports containing the status on incumbent
compliance with the frequency relocation agreement
including status on path decommissioning.
b. Where applicable, WFI shall provide to TeleCorp the following
information:
i. Test reports;
ii. Procurement documentation;
iii. Project management reports;
iv. Equipment test certification;
v. Photos, drawings and other information obtained from site
visits;
vi. Cut-over documentation; and
vii. Equipment removal certification.
c. WFI shall provide TeleCorp with copies of FCC Form 415s (or
equivalent cancellation letter) for decommissioned paths.
Page 54 of 90
<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR MICROWAVE RELOCATION SERVICES FOR INITIAL FREQUENCY BLOCKS
-------------------------------------------------------------------------
MICROWAVE RELOCATION SERVICES FEES FOR INITIAL FREQUENCY BLOCKS
a. Regional Compensation.
TeleCorp shall pay WFI a fixed price of $ [***] (the "Total Fee") for
Microwave Relocation Services for the Initial Frequency Blocks and
MTAs listed within the Initial Frequency Blocks on Schedule C to the
----------
Agreement, in the TeleCorp Regions, on a per region basis, as set
forth in the following table:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Services [***] Region [***] Region [***] Region Total
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Spectrum Sharing, $[***] $[***] $[***] $[***]
Drive Test
Frequency, and
Prior Coordination
Notice Fees
- ------------------------------------------------------------------------------------------------------
Negotiations and $[***] $[***] $[***] $[***]
Relocation Program
Management Fee
- ------------------------------------------------------------------------------------------------------
Total Fee per $[***] $[***] $[***] $[***]
Region and Total
Fee for All
TeleCorp Regions
- ------------------------------------------------------------------------------------------------------
</TABLE>
b. Payment Schedule.
i. TeleCorp shall pay WFI twelve (12) equal payments (each a
"Monthly Payment") as follows:
a. $[***] per month for the [***] Region;
b. $[***] per month for the [***] Region; and
c. $[***] per month for the [***] Region.
ii. The first payment for each region shall be due upon execution
of this Agreement.
iii. The next eight payments shall be made as follows: [***] WFI
shall invoice TeleCorp showing in reasonable detail the
calculation of [***]. Invoices shall be due and payable by
TeleCorp within thirty (30) days of the date of receipt by
TeleCorp. TeleCorp shall review the invoices and notify WFI in
writing within [***] days of receipt of the invoice of
any objection or question TeleCorp may have in connection with
the invoice. If any items are disputed, only the disputed items
may be withheld from payment. The remaining undisputed portion
of the invoice shall be paid in accordance with the terms of
this Agreement.
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<PAGE>
iv. The last three (3) payments for each region shall be due within
thirty (30) days of TeleCorp's receipt of a final invoice from
WFI for the applicable region. WFI shall notify TeleCorp upon
completion of all applicable steps set forth in the Scope of
Work for all interfering paths located in the applicable region.
TeleCorp, within [***] of receipt of such notification, shall
either approve final payment or specifically identify remaining
steps for completion by WFI. WFI shall complete any remaining
steps identified by TeleCorp and notify TeleCorp of such
completion. Upon receipt of final approval by TeleCorp, WFI
shall submit an invoice to TeleCorp for the final three (3)
payments of the applicable region.
v. TeleCorp may withhold Monthly Payments if WFI fails to provide
either timely or quality Services, and such failure has not been
cured within [***] of WFI's receipt of written notice of such
deficiency. Such withheld payments, shall be due immediately
upon WFI's cure of the deficiency to TeleCorp's satisfaction.
c. Reimbursement
i. Non-Reimbursable Costs.
----------------------
The total fee for Microwave Relocation Services set forth
herein is inclusive of the following expenses:
(a.) [***];
(b.) [***]; and
(c.) [***].
ii. Reimbursable Costs.
------------------
WFI's service fees for Microwave Relocation Services in
connection with the TeleCorp Regions include those set forth in
Attachment B hereof. TeleCorp and WFI specifically agree,
however, that TeleCorp will be additionally liable for the cost
of the following items in connection with relocation
(collectively, "Pass Through Expenses"), provided, however, that
TeleCorp shall be obligated to reimburse expenses incurred by
WFI only with respect to which WFI had received express written
direction from TeleCorp:
Any amounts [***];
(a.) [***];
(b.) [***];
(c.) [***]; and
(d.) Any [***]
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<PAGE>
[***].
d. All Microwave Relocation Services assigned under this Work
Order for the MTAs listed within the Initial Frequency Blocks on
Schedule C as of [***] shall be billed at the regional pricing set
----------------
forth herein; provided, however, that such regional pricing shall no
--------
longer apply as of [***].
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<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR FIXED NETWORK ENGINEERING CONSULTING SERVICES
------------------------------------------------------------
WORK ORDER NO.: 3
DATE: May 21, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to be
performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI for
the Services at the fixed rates per Site and shall reimburse WFI for
expenses as set forth in Attachment B.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with Attachment B to this Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Attachment B to this Work Order.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the immediately
upon full execution of this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
[PREVIOUSLY EXECUTED AS PART OF REVISED AND RESTATED FIRST
AMENDMENT TO THE ORIGINAL AGREEMENT]
Page 58 of 90
<PAGE>
ATTACHMENT A
------------
WORK ORDER FOR FIXED NETWORK ENGINEERING CONSULTING SERVICES
------------------------------------------------------------
SCOPE OF WORK
- --------------
WFI shall provide Fixed Network Engineering Consulting Services as directed by
TeleCorp, which services shall be in the nature of Carrier Relations Services,
Coordination of Dual Entrance Facilities, Interconnection Design Support,
Circuit Order and Tracking Process Support and General Market Support.
Page 59 of 90
<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR FIXED NETWORK ENGINEERING CONSULTING SERVICES
------------------------------------------------------------
PRICING
- -------
TeleCorp shall pay WFI [***] ($[***]) per day for Fixed Network Engineering
Consulting Services (the "Service Fee"). Each day shall be billed as a full
day, with no proration for partial days or overtime. In addition to the Service
Fee, TeleCorp shall reimburse WFI for travel, lodging, meal and incidental
expenses that WFI incurs in the performance of Fixed Network Engineering
Consulting Services for TeleCorp. Such expenses shall be passed through to
TeleCorp with a [***]% administrative fee.
PAYMENT SCHEDULE
- ----------------
WFI shall invoice TeleCorp monthly for Fixed Network Engineering Consulting
Services performed the previous month. All payments are due within thirty (30)
days of receipt of WFI's invoice.
DURATION
- ---------
WFI shall perform Fixed Network Engineering Consulting Services as directed by
TeleCorp for a period of six (6) months from the Effective Date of the First
Amendment to the Master Services Agreement.
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<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR FIXED NETWORK ENGINEERING SERVICES IN [***] MTA
--------------------------------------------------------------------
WORK ORDER NO.: 4
DATE: May 21, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and according to
the following terms:
7. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
8. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI
for the Services at the fixed rates per Site as set forth in Attachment B,
and shall reimburse WFI for expenses in accordance with Attachment B to
this Work Order.
9. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work
Order.
10. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
11. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services
(in accordance with the Project Schedule) immediately upon full execution
of this Work Order.
12. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
[PREVIOUSLY EXECUTED AS PART OF REVISED AND RESTATED FIRST
AMENDMENT TO THE ORIGINAL AGREEMENT]
Page 61 of 90
<PAGE>
ATTACHMENT A
------------
WORK ORDER FOR FIXED NETWORK ENGINEERING SERVICES IN [***] MTA
--------------------------------------------------------------
SCOPE OF WORK
- --------------
WFI will perform a complete turnkey design, engineering, equipment selection and
procurement, and project management of installation and testing of a wireless
microwave backhaul network in [***] in support of TeleCorp's PCS network
deployment in this market. Specifically, WFI will perform the following tasks:
TRANSMISSION ENGINEERING
- ------------------------
. Conduct preliminary wireless backhaul system design
. Perform path profile using 3-second data and topographic maps
. Conduct field path surveys
. Conduct site surveys
. Optimize preliminary wireless backhaul system design
. Conduct frequency coordination and prepare and submit FCC license
applications
EQUIPMENT PROCUREMENT
- ---------------------
. Provide material procurement and management
. Prepare equipment list specifications
. Prepare equipment proposal for microwave radios and antenna systems
. Evaluate vendor's proposal and select vendors
. Prepare material list
. Procure all equipment and manage inventory
INSTALLATION, TESTING AND COMMISSIONING
- ---------------------------------------
. Conduct construction feasibility assessments
. Coordinate and prepare third-party service agreements
. Select qualified subcontractor
. Provide zoning and Building permit support
. Conduct pre-construction meeting
. Provide on-site construction management for installation, testing, and
commissioning of the microwave backhaul system
. Provide site documentation and records management
. Conduct site inspections
. Provide system as-built drawings
. Prepare and submit site completion package
. Coordinate microwave radio training
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<PAGE>
PROJECT MANAGEMENT
- ------------------
. Create project implementation strategies
. Establish project goals including project costs and schedules
. Schedule, track, and report project progress
. Obtain local vendor pricing for equipment and installation services
. Monitor budget and costs
PROJECT SCHEDULE
- ----------------
WFI will work with Lucent and TeleCorp to develop the installation schedule and
will provide such schedule to TeleCorp on a periodic basis (weekly) and/or as
requested.
PROJECT STAFFING
- ----------------
The project team will be located at TeleCorp's office facilities in [***] for
the duration of the project. The project manager will be responsible for
project tracking, reporting, cost control, and overall implementation of the
network. The project manager will also be the designated point of contact with
TeleCorp project manager. Engineering staff will be responsible for
transmission engineering, equipment procurement and frequency planning/
coordination, licensing, and equipment installation and testing procedures.
Construction supervisors will be responsible to oversee material management,
equipment inventory, installation, alignment and testing of the network.
Page 63 of 90
<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR FIXED NETWORK ENGINEERING SERVICES IN [***] MTA
--------------------------------------------------------------
FIXED RATE SERVICE FEES
- -----------------------
WFI's service fees for the tasks detailed in the scope of work will be $[***]
per path. This fee includes all engineering and construction management fees,
frequency coordination and FCC licensing. The fee also includes all travel and
living expenses for WFI's engineering and construction management team for the
duration of the project. The fixed fee does not include cost of equipment and
third party subcontractors, which will be paid for by WFI and passed through to
TeleCorp with a [***]% administrative fee.
PAYMENT SCHEDULE
- ----------------
TeleCorp shall pay to WFI the following fee for each path to be paid in three
payments, as follows:
Payment 1: [***]% of the per path fee upon completion of [***]. Any outstanding
- ---------
third party invoices will also be issued for payment at this time.
Payment 2: [***]% of the per path fee upon completion of [***].
- ---------
Payment 3: [***]% of the per path fee upon completion of [***]. Any additional
- ---------
outstanding third party invoices will also be issued for payment at this time.
WFI may invoice TeleCorp monthly for any outstanding third party invoices
received by WFI after path completion.
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<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR THE [***] MTA (Phase I)
--------------------------------------------------------------------------
WORK ORDER NO.: 5
DATE: May 21, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
7. ASSIGNMENT: The following illustrates the Services and specific tasks to
be performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
8. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI
for the Services at the fixed rates per Site and shall reimburse WFI for
expenses as set forth in Attachment B.
9. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work
Order.
10. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
11. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services
(in accordance with the Deployment Schedule) immediately upon full
execution of this Work Order.
12. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
[PREVIOUSLY EXECUTED AS PART OF REVISED AND RESTATED FIRST
AMENDMENT TO THE ORIGINAL AGREEMENT]
Page 65 of 90
<PAGE>
ATTACHMENT A
------------
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR THE [***] MTA (Phase I)
--------------------------------------------------------------------------
SCOPE OF WORK
- -------------
WFI shall perform Site Development Services for TeleCorp in the [***] MTA, for
Search Rings issued to WFI by TeleCorp. Site Development Services include all of
the Site Acquisition, Construction Management and Program Management services
listed in Work Order 1 to the Master Services Agreement dated February 27, 1998.
Page 66 of 90
<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR THE PUERTO RICO MTA (Phase I)
--------------------------------------------------------------------------
PRICING AND PAYMENT SCHEDULE
- ----------------------------
TeleCorp shall pay WFI a fixed fee per site of $[***], except as provided below.
WFI shall invoice TeleCorp monthly for each portion of the per site fee as
indicated below, upon completion of each of the following milestones:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------
Milestone Milestone Fee per
Site
- ---------------------------------------------------------------------------
<S> <C>
Full Execution of Primary Candidate Lease $[***]
- ---------------------------------------------------------------------------
Completion of Required Zoning & Permitting Activities $[***]
- ---------------------------------------------------------------------------
Construction Initiation $[***]
- ---------------------------------------------------------------------------
Construction Completion $[***]
- ---------------------------------------------------------------------------
Acceptance Site
- ---------------------------------------------------------------------------
TOTAL $[***]
- ---------------------------------------------------------------------------
</TABLE>
* TeleCorp shall [***], in the event that TeleCorp [***] entered into a [***].
and further provided that [***].
For purposes of this Work Order, a [***] is defined as a [***].
[SEE ATTACHED LIST OF MASTER LEASE LESSORS]
The above fees include all out-of-pocket expenses, including, without
limitation, automobile mileage and cellular telephone charges related to the
performance of the project.
DURATION
- --------
WFI shall commence performing Site Development Services for TeleCorp in the
[***] MTA on or about February 1, 1999, and shall continue until all sites have
been accepted by TeleCorp and at the conclusion of customary wind-up activities.
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<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR [***] ADDITIONAL SITES - DOMESTIC
--------------------------------------------- ----------------------------
WORK ORDER NO.: 6
DATE: _________, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to be
performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI for
the Services at the fixed rates per Site as set forth in Attachment B, and
shall reimburse WFI for expenses in accordance with Section IV of the
Agreement.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services (in
accordance with the Deployment Schedule) immediately upon full execution of
this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
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<PAGE>
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
By: /s/ Thomas H. Sullivan By: /s/ Masood Tayebi
------------------------- -------------------------
Name: Thomas H. Sullivan Name: Masood Tayebi
---------------------- ----------------------
Title: President Title: President
---------------------- ----------------------
Date: 10/12/99 Date: 10/6/99
---------------------- ----------------------
Page 69 of 90
<PAGE>
ATTACHMENT A
------------
Work Order for Site Development Services for [***] Additional Sites - Domestic
--------------------------------------------- ----------------------------
SCOPE OF WORK - TASK DESCRIPTION
- --------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
SCOPE OF SERVICES - TASK DESCRIPTION Primary Responsibility Comments
(Note - WFI pass-through
cost plus agreed upon %)
WFI Client
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1.0 Site Acquisition [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
1.1 Preliminary [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
a) Identify friendly site candidates from existing databases. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
b) Submit initial search information for potential sites: [***] [***] [***]
Location, description, preliminary lease terms, GPS
coordinates.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Perform Tech team visits to the search area, site visits to [***] [***] [***]
friendly candidates as required.
- ------------------------------------------------------------------------------------------------------------------------------------
1.2 Site Identification [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
a) Provide site candidate packages for primary and alternate [***] [***] [***]
site candidates.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Maintain property owner contact for site visits by [***] [***] [***]
construction (if required) and RF for ranking of
candidates.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Coordinate with municipal planning authority and technical [***] [***] [***]
teams for site selection.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Submit search ring site candidate feasibility reports: [***] [***] [***]
property ownership information, initial property
owner/manager, environmental checklist, description of
location and site, description of potential lease terms,
preliminary title report and property owner's authorization
to submit permits, applications and duplicate architectural
drawings.
- ------------------------------------------------------------------------------------------------------------------------------------
1.3 Lease Acquisition [***] [***] [***]
- -----------------------------------------------------------------------------------------------------------------------------------
a) Provide lease template and internal legal review and [***] [***] [***]
adjustments-send to attorney as required.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Obtain "As-built" drawing information and documents of [***] [***] [***]
primary candidate (as available).
- ------------------------------------------------------------------------------------------------------------------------------------
c) Prepare lease/license documents (options with negotiated [***] [***] [***]
lease agreements or purchase options) for primary site
execution including all insertions and deletions, legal
coordination (with legal counsel as directed). Prepare any
necessary easements for utilities or access for site
selection. Order and review of preliminary title report.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Obtain landowner's signature on lease/license documents and [***] [***] [***]
submit to Client for signature.
- ------------------------------------------------------------------------------------------------------------------------------------
e) Negotiate and complete acquisition of applicable easements [***] [***] [***]
necessary for utilities, access, etc.
- ------------------------------------------------------------------------------------------------------------------------------------
f) Coordinate title curative activities and commitment for [***] [***] [***]
title insurance.
- ------------------------------------------------------------------------------------------------------------------------------------
g) Coordinate and attend Tech Team visits with Zoning, RF [***] [***] [***]
and CM groups.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
SCOPE OF SERVICES - TASK DESCRIPTION Primary Responsibility Comments
(Note - WFI pass-through
cost plus agreed upon %)
WFI Client
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
h) Review lease exhibits, zoning drawings and construction [***] [***] [***]
drawings for conformity with the leased premise.
- ------------------------------------------------------------------------------------------------------------------------------------
i) Maintain and track - site reports, candidate files, etc. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRIMARY Comments
SCOPE OF WORK - TASK DESCRIPTION RESPONSIBILITY ( Note WFI pass
through cost plus
WFI CLIENT agreed %)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1.4 Zoning (or permitting in jurisdictions without zoning) [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
a) Establish contact with appropriate zoning officials [***] [***] [***]
from each of the jurisdictions identified in RF
coverage areas. Discuss municipal regulations,
past histories, current hearing procedures and
timetables for public hearings meetings with
zoning authorities.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Prepare Initial Zoning Analysis Binder containing [***] [***] [***]
specific information with respect to each jurisdiction
located throughout the design coverage area:
1) Municipal Regulations
2) Listing of zoning district designations and
areas (with design criteria) which are
"Permitted by Right", "Special Exceptions",
"Conditional Use Permits", "Administrative
Review" etc.
3) Setback requirements, stealthing requirements, or
other procedures required to obtain approval.
4) Zoning officials' names, phone number, fax
number and summary of conversations (if applicable).
5) Zoning maps.
6) Approval timeframes and expiration terms
(if applicable).
7) Current application deadlines and public hearing
schedules.
8) Zoning application and fee schedule.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Prepare Specific Zoning Analysis document for each candidate [***] [***] [***]
pending RF approval:
1) Specific zoning district designation for applicable
site, zoning approval process, timeframe for approval,
and application deadlines.
2) Estimated probability of obtaining zoning approval.
Include summary of conversations with zoning officials
(if applicable).
3) Note fee schedule.
4) Identification of potential issues which affect zoning
probabilities.
5) Zoning recommendations.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Coordinate zoning drawings with A&E. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
e) Prepare and submit zoning application with appropriate [***] [***] [***]
jurisdiction as well as any other regulatory applications
needed for zoning approval.
- ------------------------------------------------------------------------------------------------------------------------------------
f) Attend and coordinate scheduling for expert testimonials as [***] [***] [***]
necessary for zoning hearings and community meetings.
- ------------------------------------------------------------------------------------------------------------------------------------
g) Provide original documentation of zoning approval. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
h) Maintain reports, site folders, etc. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
i) Provide Summary Report with approval requirements not [***] [***] [***]
included on drawings; including post-construction requirements.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRIMARY Comments
SCOPE OF WORK - TASK DESCRIPTION RESPONSIBILITY (Note WFI pass
through cost plus
WFI CLIENT agreed %)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2.0 Construction Management [***]
- ------------------------------------------------------------------------------------------------------------------------------------
2.1 General
- ------------------------------------------------------------------------------------------------------------------------------------
a) Oversee and manage all aspects of the [***] [***] [***]
construction management activity and ensure
coordination with all other system development
activities.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Coordinate engineers to develop site specific [***] [***] [***]
designs and communicate all site information
into working drawings/site designs.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Coordinate personnel to supervise, inspect and [***] [***] [***]
approve the work of civil contractors performing
work on Client's sites.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Provide/develop construction safety program. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
e) Implement safety program for all construction [***] [***] [***]
sites and manage all sub-contractors for compliance
with the program. The program shall include
orientation, training, regular inspections and
compliance management.
- ------------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
2.2 Site Survey and Assessment [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
a) Visit sites. Complete constructability assessment [***] [***] [***]
and candidate ranking: Review of general design and
construction issues/site access, availability of
utility services, measurements, potential problem
areas/possible solutions, preliminary minimum/maximum
cost estimates & photographs.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Coordinate required documentation for use in zoning [***] [***] [***]
applications and hearings.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Ensure that all required documents are complete prior [***] [***] [***]
to start of construction; leases, zoning & planning
approvals, permits, easements and landlord/utility
approvals of construction drawings for rooftops, water
tanks or other specialty sites. Coordinate lease
exhibit drawings as required.
- ------------------------------------------------------------------------------------------------------------------------------------
2.3 Manage Planning and Construction Drawings [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
a) Provide basic design specifications, standard site [***] [***] [***]
design details and layout information in an agreed upon
format for the A&E's use on projects.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Manage and direct architectural and engineering [***] [***] [***]
(A&E) functions for plan preparation and distribution.
Site specific designs will be necessary and managed by
the CM.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRIMARY Comments
SCOPE OF WORK - TASK DESCRIPTION RESPONSIBILITY (Note WFI pass
through cost plus
WFI CLIENT agreed %)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
c) Coordinate site access for design investigation, [***] [***] [***]
manage and coordinate all survey, geotechnical,
civil, architectural, structural, electrical,
mechanical, environmental analysis and landscape
design consultants. Establish deadlines for all
work and track to completion. Issue specifications
for the format and information to be received
from each sub-contractor.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Coordinate the preparation of complete construction [***] [***] [***]
drawing packages based upon the information obtained
from each primary site.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRIMARY Comments
SCOPE OF WORK - TASK DESCRIPTION RESPONSIBILITY (Note WFI pass
through cost plus
WFI CLIENT agreed %)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
e) Submit construction drawing packages to [***] [***] [***]
respective jurisdictions as required by law.
Coordinate the resolution of any and all
changes as mandated by local officials.
- ------------------------------------------------------------------------------------------------------------------------------------
f) Obtain building permit. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
2.4 Civil Construction & Site Integration
- ------------------------------------------------------------------------------------------------------------------------------------
a) Develop and issue standards for use in [***] [***] [***]
pre-qualifying civil contractors who may
perform work on the project: minimum levels
of experience on similar projects, industry
references, annual construction volume figures,
licenses for all applicable jurisdictions,
bonding capability, insurance coverage, documented
quality assurance and control programs.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Develop terms and conditions of a construction [***] [***] [***]
subcontractor agreement, if one does not exist.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Develop preliminary construction budget, scope of [***] [***] [***]
work and list of materials.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Coordination, selection, and management of [***] [***] [***]
subcontracted professional services, site
survey, geotechnical analysis, environmental
analysis, structural analysis and any other
required services.
- ------------------------------------------------------------------------------------------------------------------------------------
e) Develop a procurement plan and schedule to [***] [***] [***]
ensure adequate and timely materials delivery for
site construction.
- ------------------------------------------------------------------------------------------------------------------------------------
f) Prepare and issue RFQs for use in obtaining [***] [***] [***]
competitive bids for civil construction
services at each site or group of sites: drawings,
specifications and other pertinent information
required to secure bids for the work.
- ------------------------------------------------------------------------------------------------------------------------------------
g) Coordinate pre-bid site walk meetings with all [***] [***] [***]
bidders to allow for accurate bids. Manage the bid
process and respond to all questions from bidders on
the project.
- ------------------------------------------------------------------------------------------------------------------------------------
h) Evaluate bids received for work. Correlate to [***] [***] [***]
project budgets and schedule.
- ------------------------------------------------------------------------------------------------------------------------------------
i) Negotiate all final prices, assure adherence to [***] [***] [***]
pre-existing subcontractor agreement or enter
into a contract for the work with the recommended
sub-contractor.
- ------------------------------------------------------------------------------------------------------------------------------------
j) Detail Design for Site Materials: Power and Backup, [***] [***] [***]
RF, PSTN/Fiber & Mechanical.
- ------------------------------------------------------------------------------------------------------------------------------------
k) Site material procurement and supplier management: [***] [***] [***]
Power Supplies, Batteries, RF Transmission Lines,
Cable Trays, Antennas & Support Equipment.
- ------------------------------------------------------------------------------------------------------------------------------------
l) Coordinate the acquisition, delivery, storage and [***] [***] [***]
installation of materials.
- ------------------------------------------------------------------------------------------------------------------------------------
m) Provide warehousing Services for Materials. [***] [***] [***]
- ------------------------------------------------------------------------------------------------------------------------------------
n) Secure all required Telco and power services for [***] [***] [***]
each site. Submit all required applications,
design information and fees *. Coordinate site
installation and final connection of the utility
services.
- ------------------------------------------------------------------------------------------------------------------------------------
o) Manage the site construction in adherence to [***] [***] [***]
approved designs, specifications and standards.
Ensure that work is in full compliance with all
local, state and national codes, regulations,
ordinances and guidelines.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRIMARY Comments
RESPONSIBILITY (Note WFI pass
SCOPE OF WORK - TASK DESCRIPTION through cost plus
WFI CLIENT agreed %)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
p) Manage construction processes and expedite where [***] [***] [***]
required: preparation of site access, site
preparation, site excavation and leveling, foundations,
electrical service and grounding, tower construction,
structure reinforcement, interior renovations (where
required), equipment shelter placement, antenna and
coaxial cable routing and mounting, installation of
OEM equipment, etc.
- ------------------------------------------------------------------------------------------------------------------------------------
q) Perform Site Integration: Power, Grounding, RF, [***] [***] [***]
Telecom, Equipment Cabinets, Support, Air
Conditioning, Mechanical
- ------------------------------------------------------------------------------------------------------------------------------------
r) Complete quality inspections as needed to ensure [***] [***] [***]
compliance with the plans and specifications:
verify completion of the work.
- ------------------------------------------------------------------------------------------------------------------------------------
2.5 Manage Job Closeout
- ------------------------------------------------------------------------------------------------------------------------------------
a) Conduct final inspections and compile punch lists. [***] [***] [***]
Manage the resolution of punch list items through
completion.
- ------------------------------------------------------------------------------------------------------------------------------------
b) Final walk-through and inspection: complete site [***] [***] [***]
acceptance.
- ------------------------------------------------------------------------------------------------------------------------------------
c) Compile and produce all construction-related [***] [***] [***]
documents for the site file: as-built drawings,
project correspondence, contact list of
sub-contractors, test and analysis reports,
site photos, surveys and permits.
- ------------------------------------------------------------------------------------------------------------------------------------
d) Ensure that all payments have been issued to civil [***] [***] [***]
contractors and that all lien releases have been
received for work and materials used in the project.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
ATTACHMENT B
------------
WORK ORDER FOR SITE DEVELOPMENT SERVICES FOR [***] ADDITIONAL SITES - DOMESTIC
------------------------------------------------------------------------------
COMPENSATION
- ------------
Fees, Expenses and Payment Schedule
- -----------------------------------
TeleCorp shall pay WFI a fixed fee of $[***] for each approved Site within a
Search Ring issued under this Work Order, as provided below. WFI shall invoice
TeleCorp monthly for each portion of the per-Site fee as indicated below, upon
completion of each of the following milestones:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
MILESTONE Milestone Fee per
Site
- ----------------------------------------------------------------------------------
<S> <C>
Landlord/landowner's Execution of Primary Candidate Site Lease $[***]
- ----------------------------------------------------------------------------------
Completion of Zoning/Permitting Activities $[***]
- ----------------------------------------------------------------------------------
Initiation of Construction $[***]
- ----------------------------------------------------------------------------------
Completion of Construction $[***]
- ----------------------------------------------------------------------------------
TeleCorp's Acceptance of Site $[***]
- ----------------------------------------------------------------------------------
TOTAL $[***]
- ----------------------------------------------------------------------------------
</TABLE>
WFI may, in its sole discretion, reject or accept assignments of Search Rings
from TeleCorp under this Work Order if such assignments are for fewer than [***]
Search Rings in any TeleCorp market in which WFI did not operate a project
office prior to the time of such assignment (each such market, a "New Market").
WFI shall, however, accept an assignment for fewer than [***] Search Rings in a
New Market if at least [***] Search Rings are planned in that New Market within
a reasonable time, but only upon the prior written approval of WFI's Vice
President or Senior Vice President of Project Management. WFI shall, however,
accept all Search Rings assigned by TeleCorp that are located in markets in
which WFI had operated a project office prior to such assignment, regardless of
the number of Search Rings in that assignment.
ADJUSTMENT FOR FEWER THAN [***] SITES
- -------------------------- ------
It is expressly understood by the Parties that the pricing set forth in this
Work Order is based on TeleCorp's commitment to assign to WFI [***] Search Rings
(which number may include Search Rings in [***]) by December 31, 2000. If, on
December 31, 2000, TeleCorp has not assigned to WFI [***] Search Rings, then
TeleCorp shall pay to WFI an adjustment of $[***] per domestic Search Ring
actually assigned as of such date. TeleCorp may issue Search Rings to WFI only
by written notice issued to WFI and approved by TeleCorp.
EXPENSES
- --------
The following table shows which expenses are included in WFI's pricing and which
are to be passed-through to TeleCorp for reimbursement to WFI, with an initial
[***]% administrative fee; or a [***]% administrative fee if the conditions set
forth in Section IV.A. of the Master Services Agreement are met.
Page 77 of 90
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<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Expense Summary: WFI Provided and Reimbursed to WFI by
Included TeleCorp
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Architect and Engineering Services [***] [***]
- ----------------------------------------------------------------------------------------------------
Capital lease costs (if necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Cellular Phones/Pagers [***] [***]
- ----------------------------------------------------------------------------------------------------
Cellular/Paging Service (project related) [***] [***]
- ----------------------------------------------------------------------------------------------------
Computer Software or other Electronic Media [***] [***]
- ----------------------------------------------------------------------------------------------------
Crane rental for drive testing [***] [***]
- ----------------------------------------------------------------------------------------------------
Construction Contractor for site construction [***] [***]
- ----------------------------------------------------------------------------------------------------
Database Generation and Maintenance [***] [***]
- ----------------------------------------------------------------------------------------------------
Easement Acquisition Costs (if necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Environmental Site Assessment [***] [***]
- ----------------------------------------------------------------------------------------------------
Expert Testimony (if necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Land-use attorney (if necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Lease option payments [***] [***]
- ----------------------------------------------------------------------------------------------------
License & Permit Fees [***] [***]
- ----------------------------------------------------------------------------------------------------
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
- ----------------------------------------------------------------------------------------------------
Formal Site Survey [***] [***]
- ----------------------------------------------------------------------------------------------------
Frequency Coordination Study (preliminary and final) [***] [***]
- ----------------------------------------------------------------------------------------------------
GIS/Mapping (as necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Mechanical and Electrical Drawings [***] [***]
- ----------------------------------------------------------------------------------------------------
Vehicle Expenses (project related) [***] [***]
- ----------------------------------------------------------------------------------------------------
Laptop Computers (including Microsoft Office Suite [***] [***]
and Windows '95 or '98)
- ----------------------------------------------------------------------------------------------------
Office Rent, Furniture & Equipment [***] [***]
- ----------------------------------------------------------------------------------------------------
Office Supplies [***] [***]
- ----------------------------------------------------------------------------------------------------
CW Drive Test Equipment [***] [***]
- ----------------------------------------------------------------------------------------------------
Propagation Tools (software), terrain data bases [***] [***]
- ----------------------------------------------------------------------------------------------------
Propagation Tools (hardware - computer and plotter) [***] [***]
- ----------------------------------------------------------------------------------------------------
Overnight Mail (project related) [***] [***]
- ----------------------------------------------------------------------------------------------------
Photo Simulations (as necessary) [***] [***]
- ----------------------------------------------------------------------------------------------------
Soil Tests (geotechnical testing) [***] [***]
- ----------------------------------------------------------------------------------------------------
Structural Analysis [***] [***]
- ----------------------------------------------------------------------------------------------------
Telephone/FAX Service (local/long distance) [***] [***]
- ----------------------------------------------------------------------------------------------------
Title (property ownership verification) Report Cost [***] [***]
- ----------------------------------------------------------------------------------------------------
Tower Stress and Foundation Analysis [***] [***]
- ----------------------------------------------------------------------------------------------------
Travel and Living Expenses [***] [***]
- ----------------------------------------------------------------------------------------------------
Utilities [***] [***]
- ----------------------------------------------------------------------------------------------------
Warehouse Lease and Insurance Expense [***] [***]
- ----------------------------------------------------------------------------------------------------
Zoning/Filing/Permitting Fees [***] [***]
- ----------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR C-BLOCK MICROWAVE RELOCATION SERVICES
----------------------------------------------------
WORK ORDER NO.: 7
DATE: _________, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
1. ASSIGNMENT: Upon receiving a written notice from TeleCorp to proceed to
perform the indicated Services on specified microwave links, WFI shall
perform the applicable Services as described more specifically in Attachment
A.
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI for
the Services at the fixed rates per Site as set forth in Attachment B, and
shall reimburse WFI for expenses in accordance with Attachment B.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services (in
accordance with the Deployment Schedule) immediately upon full execution of
this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
By: /s/ Thomas H. Sullivan By: /s/ Masood Tayebi
------------------------- ------------------------
Name: Thomas H. Sullivan Name: Masood Tayebi
------------------------- -----------------------
Title: President Title: President
------------------------ -----------------------
Date: 10/12/99 Date: 10/6/99
------------------------ -----------------------
Page 79 of 90
<PAGE>
ATTACHMENT A
------------
TO WORK ORDER FOR C-BLOCK MICROWAVE RELOCATION SERVICES
-------------------------------------------------------
Scope of Work
- --------------
WFI, utilizing the Comsearch IQ Clear spectrum-sharing tool, procured and
provided by WFI, will supply to TeleCorp labor, services, resources and
consultation necessary to perform microwave relocation and spectrum clearing
services ("Microwave Services"). The Microwave Services include Spectrum
Sharing Engineering Study and Analysis and Initial Market Assessment, Drive Test
Frequency Selection, and prior Coordination Notices. The Microwave Services
also include Negotiations and Program Management for the relocation of
interfering paths.
1. SPECTRUM SHARING ENGINEERING STUDY AND ANALYSIS AND INITIAL MARKET
ASSESSMENT
WFI will perform spectrum-sharing studies, as required, for selected
frequency (ies), in each assigned BTA and frequency, based on either a
generic RF design or the design information provided by TeleCorp. WFI will
utilize the results of the analysis in performing the following steps as
required to complete assessment of interfering paths/incumbents identified in
spectrum sharing study including status and initial budgetary analysis for
each path.
2. SERVICE DESCRIPTION
a. SPECTRUM SHARING ANALYSIS
WFI will perform spectrum-sharing studies, as required, for each
assigned BTA and frequency. The reiterative studies will be based on RF
design information provided by TeleCorp, and will identify all microwave
paths that could affect or be affected by TeleCorp's proposed PCS
systems, based on FCC guidelines on interference avoidance.
b. REVIEW AND CATALOG PATH DATA
Review information from the spectrum sharing analysis on a per market
and per incumbent basis for both co-channel and adjacent channel paths.
Information such number of links, equipment and modulation type,
capacity, site names and locations for each path will be logged for use
during negotiations and relocation project management.
c. PATH PRIORITIZATION
WFI will develop technical parameters for the interfering co- and
adjacent-channel paths to establish negotiation and relocation
strategies and path priorities.
d. REVIEW OF INCUMBENT DATA
WFI will review incumbent system data on a per link basis and compare
the information against FCC database information to determine whether
the incumbent is operating on a primary status with a current license.
e. PATH STATUS VERIFICATION AND INITIAL INCUMBENT ASSESSMENT
WFI will contact each incumbent to confirm database information, verify
path status i.e. active, negotiated, or decommissioned. If the incumbent
has not entered into an agreement with another PCS Licensee, then WFI
will assess the
Page 80 of 90
<PAGE>
incumbent's willingness to negotiate, identify strategic information,
and discuss preliminary relocation options.
f. ASSESSMENT OF PREVIOUSLY NEGOTIATED PATHS
WFI will attempt to obtain the terms and status of each relocation
agreement entered into between an incumbent and other PCS licensee(s).
WFI will attempt to obtain a copy of the agreement, provided that it is
not protected by a non-disclosure agreement. WFI will determine whether
the dates agreed upon in the relocation agreement meets TeleCorp's
requirements.
g. ESTIMATE COMPARABLE RELOCATION COSTS
Estimate relocation costs on a per incumbent and per market basis for
paths that are determined to be active or co-channel paths that have
been negotiated and/or relocated. Information such as system type and
architecture, number of links required to be relocated, tower heights
and typical system usage will be used to develop the cost estimates.
h. ROUTE MAPPING
Develop route maps on a per incumbent and per market basis delineating
co-channel and adjacent channel active paths.
i. DRIVE TEST FREQUENCY SELECTION
WFI will complete the spectrum analysis and provide TeleCorp with the
require drive test frequencies for the assigned BTS locations (if a non-
Interfering frequency is available).
j. PRIOR COORDINATION NOTICES
WFI will prepare Prior Coordination Notices (PCN(s)), mail PCNs to
incumbents and clearing houses, and coordinate responses and objections
to PCNs, as required.
k. DELIVERABLES
WFI will provide TeleCorp with periodic reports containing the following
information:
i. Copies of FCC licenses for each identified path;
ii. Comparable cost documentation;
iii. Detailed budgetary cost analysis on a per BTA and
frequency basis;
iv. Route maps;
v. Frequency relocation contract templates;
vi. Upon clearing of each region or market, WFI shall
provide;
vii. Drive Test Frequencies as required; and;
viii. Copies of filed PCNs.
Page 81 of 90
<PAGE>
3. NEGOTIATIONS AND PROGRAM MANAGEMENT
a. INTRODUCTORY MAILING
WFI will identify the proper technical and negotiation contact for each
incumbent and send an introductory mailing packet containing general
information on microwave relocation and specific information about
TeleCorp and its proposed course of action.
b. NEGOTIATION PARAMETERS
WFI will work with TeleCorp to develop negotiation parameters acceptable
to TeleCorp. These parameters should be established prior to the
commencement of negotiations so that settlements may be negotiated
expeditiously.
c. DEVELOPMENT OF NEGOTIATION STRATEGIES
WFI will work with TeleCorp to develop optimal negotiation strategies
for each incumbent and market. These strategies will be based upon the
size and location of each incumbent's network, considering whether the
incumbent is present in multiple TeleCorp markets, TeleCorp's priorities
and its willingness to provide various relocation alternatives.
d. INITIATE NEGOTIATIONS
WFI will negotiate with incumbent to reach an agreement that conforms to
TeleCorp's relocation schedule and cost parameters.
e. ADDITIONAL NEGOTIATION AND FINALIZATION OF AGREEMENT FOR AMENDED
RELOCATION DATES
If a path has been negotiated by another PCS licensee, but the
relocation Date(s) are unacceptable to TeleCorp, then WFI will initiate
negotiations with the incumbent, other PCS licensee(s) or both to alter
the unacceptable relocation dates and bring them into conformity with
TeleCorp's relocation priorities.
f. NEGOTIATION STRATEGY
WFI will re-assess negotiation parameters and strategies as required
based on discussions with incumbents, additional information obtained
from incumbent meeting, and any modifications to TeleCorp's deployment
schedule.
g. CONTRACT TEMPLATES
TeleCorp's inside counsel shall review and modify, as required, the
contract templates that WFI provides to TeleCorp. The parties agree that
these pre-approved contract templates are essential for enabling WFI to
conclude negotiations in an efficient and expedient manner.
h. FINALIZE RELOCATION TERMS
WFI will provide the proposed business terms to TeleCorp for approval.
i. FINALIZE RELOCATION AGREEMENT
Once TeleCorp has approved the business terms, WFI shall work with
TeleCorp's counsel to facilitate the negotiation and execution of the
final relocation agreement between TeleCorp and the incumbent.
Page 82 of 90
<PAGE>
j. FREQUENCY COORDINATION
WFI will order frequency coordination. If required, WFI will prepare the
required FCC license applications for incumbent's signature and submit
such applications to the FCC.
k. DETAILED RELOCATION SYSTEM DESIGN
WFI will order engineering services required to design and engineer the
microwave path including path and site surveys and network system
design.
l. THIRD PARTY PROPOSALS
WFI will obtain and review third party proposals for equipment and/or
services, including but not limited to construction, installation,
testing and training and other services required to implement the
turnkey replacement and make a recommendation to TeleCorp as to which
proposal to accept.
m. TOWER STRESS AND FOUNDATION ANALYSIS
WFI will order any required tower and foundation analyses. WFI will
coordinate and program manage the entire process.
n. TOWER OPTIONS ANALYSIS
WFI will review results of the tower and/or foundation analyses and
based on the recommendation made by the supplier, determine most cost-
effective option such as structural strengthening, replacement, or
alternate courses of action.
o. LEASED FACILITIES
In the event that an incumbent transfers its operations to leased
facilities and requests TeleCorp's assistance in the transfer, WFI will
coordinate the transfer of the facilities to alternate leased by the
scheduled decommissioning date.
p. RELOCATION PLAN
WFI will develop a relocation plan that sets forth detailed relocation
requirements including equipment procurement requirements, time line
requirements, system performance requirements and detailed installation
requirements. These detailed installations requirements will include
testing, acceptance, and commissioning requirements.
q. INSTALLATION FEASIBILITY ANALYSIS
WFI, in coordination with a third party equipment supplier and installer
will conduct an installation feasibility analysis in order to identify
detailed installation requirements and to ensure that decommissioning
objectives are met.
r. INSTALLATION OVERSIGHT
WFI will supervise the installation of the replacement system to ensure
that the old system is decommissioned on schedule and that the incumbent
is satisfied with the installation of the replacement system.
s. TOWER MODIFICATION OVERSIGHT
WFI will monitor third party Suppliers' performance to encourage timely
completion of their obligations.
Page 83 of 90
<PAGE>
t. DOCUMENTATION REVIEW
WFI will review "as built" documentation prepared by third party
Suppliers, verify completion of third party supplier contractual
requirements, and recommend to TeleCorp to proceed with final payment
based on acceptance criteria.
u. INCUMBENT ACCEPTANCE
WFI will obtain final incumbent acceptance of equipment and facility
installation. WFI will work toward incumbent's satisfaction that the
contractual obligations by TeleCorp and its subcontractors (if
applicable) have been met.
v. FINAL COST DOCUMENTATION
WFI will provide TeleCorp with a final accounting of the costs incurred
to perform the turnkey relocation project.
w. MONITORING OF INCUMBENT'S PERFORMANCE OBLIGATIONS
For paths that resulted in a cash transaction between incumbent and
TeleCorp, WFI will monitor incumbent to encourage compliance with
contractual obligations and report such status to TeleCorp.
x. DECOMMISSIONING NOTIFICATION
WFI will notify TeleCorp of completion of the relocation and provide
TeleCorp with copies of FCC Form 415s and/or FCC licenses indicating
that the 2GHz frequencies have been removed and decommissioned.
4. DOCUMENTATION FOR MICROWAVE SERVICES
a. WFI will provide TeleCorp the following deliverables on a per
incumbent basis:
i. Signed offer letter;
ii. Executed contract between incumbent and TeleCorp;
iii. Periodic reports containing the status on incumbent compliance with
the Frequency relocation agreement including status on path
decommissioning.
b. Where applicable, WFI shall provide to TeleCorp the following
information:
i. Test reports;
ii. Procurement documentation;
iii. Project management reports;
iv. Equipment test certification;
v. Photos, drawings and other information obtained from site
visits;
vi. Cut-over documentation; and
Page 84 of 90
<PAGE>
vii. Equipment removal certification
c. WFI shall provide TeleCorp with copies of FCC Form 415s for
decommissioned paths.
Page 85 of 90
<PAGE>
ATTACHMENT B
------------
TO WORK ORDER FOR C-BLOCK MICROWAVE RELOCATION SERVICES
-------------------------------------------------------
SCHEDULE OF SERVICES AND FEES
- -----------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
SERVICE TYPE PRICE PER SERVICE PAYMENT MILESTONES AND TIMING OF INVOICE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
Spectrum Sharing Analysis $[***] Full amount earned upon completion of
performed on IQ Clear Spectrum Sharing Analysis and delivery
of Relocation Budget Report
- ---------------------------------------------------------------------------------------------------
Negotiation and Program 1. [***]% of fee earned upon assignment
of path to WFI and initial incumbent
contact [***].
Management (1st path per $[***] 2. [***]% of fee earned upon incumbent's
incumbent) execution of microwave relocation
agreement
3. [***]% of fee earned upon completion
of relocation and filing with the FCC
Form 415 or equivalent.
*If paths are [***] to incumbent but
before [***] then WFI will earn [***]%
of [***] so that [***]% of [***]
Negotiation and Program
Management (each additional $[***]
path per incumbent)
- ---------------------------------------------------------------------------------------------------
Drive Test Frequencies (cost $[***] Invoiced monthly for completed number of
per frequency) frequencies.
- ---------------------------------------------------------------------------------------------------
PCN Filing (cost per market) $[***] Invoiced upon mailing of PCN
- ---------------------------------------------------------------------------------------------------
Cost Sharing Support (per $[***] 1. [***]% of fee earned upon [***]
path) 2. [***]% of fee earned upon completion
of [***]
- ---------------------------------------------------------------------------------------------------
</TABLE>
All travel costs and travel-related expenses will be passed through to TeleCorp
without additional administrative fees.
WFI will perform Microwave Relocation / Negotiation Services as requested for
the C Block deployment in the following [***] markets, which are made up of
contiguous BTAs:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
MARKET BTAS
- -----------------------------------------------------------------------------------------
<S> <C>
[***] [***]
- -----------------------------------------------------------------------------------------
[***] [***]
- -----------------------------------------------------------------------------------------
[***] [***]
- -----------------------------------------------------------------------------------------
[***] [***]
- -----------------------------------------------------------------------------------------
</TABLE>
* Confidential treatment requested
Page 86 of 90
<PAGE>
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
WIRELESS FACILITIES, INC.
WORK ORDER FOR FIXED NETWORK ENGINEERING SERVICES IN [***] MTA (PHASE II)
- -------------------------------------------------------------------------
WORK ORDER NO.: 8
DATE: _________, 1999
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of the Amended and Restated Master Services
Agreement (the "Agreement") dated __________, 1999 by and between TeleCorp
Communications, Inc. and its operating affiliates ("Client") and Wireless
Facilities, Inc. and its affiliates ("WFI") and according to the following
terms:
1. ASSIGNMENT: The following illustrates the Services and specific tasks to be
performed by WFI:
[DESCRIPTION OF SERVICES AND TASKS - SEE ATTACHMENT A]
2. SERVICES FEES AND REIMBURSEMENT OF EXPENSES: Client shall compensate WFI for
the Services at the fixed rates per Site as set forth in Attachment B, and
shall reimburse WFI for expenses in accordance with Attachment B.
3. INVOICING SCHEDULE: WFI shall invoice Client for Service Fees in accordance
with the schedule of Payment Milestones per Attachment B to this Work Order.
4. PAYMENT OF INVOICES: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section IV of the Agreement.
5. COMMENCEMENT OF SERVICES: WFI shall initiate performance of the Services (in
accordance with the Deployment Schedule) immediately upon full execution of
this Work Order.
6. MASTER SERVICES AGREEMENT: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
By: /s/ Thomas H. Sullivan By: /s/ Masood Tayebi
------------------------- ------------------------
Name: Thomas H. Sullivan Name: Masood Tayebi
------------------------- -----------------------
Title: President Title: President
------------------------ -----------------------
Date: 10/12/99 Date: 10/6/99
------------------------ -----------------------
Page 87 of 90
*Confidential Treatment Requested
<PAGE>
EXHIBIT 10.23
--------------------------------
Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
--------------------------------
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement") is entered into as of
January 18, 1999 (the "Effective Date") between Nextel Partners Operating Corp.,
a Delaware corporation ("Client") and Wireless Facilities, Inc., a Delaware
corporation ("WFI"). (Client and WFI are each hereinafter referred to
individually as a "Party" or collectively as "Parties").
WHEREAS, Client intends to acquire sites and construct facilities in order
to develop and operate a telecommunications network system using the iDEN
technology (the "Project").
WHEREAS, the Parties have reached an agreement whereby WFI will provide
various engineering and site development services to Client in connection with
the Project as requested by Client on an hourly or turnkey basis.
WHEREAS, the Parties entered into a Letter of Intent to Provide
Engineering, Site Development and Construction Management Services dated
September 1, 1998, as extended by the Extension of Letter of Intent to Provide
Engineering, Site Development and Construction Management Services dated
November 6, 1998 (collectively referred to as the "Letter of Intent").
WHEREAS, under the terms of the Letter of Intent, WFI agreed to provide
such various services to Client until the Parties executed this Agreement, which
would supersede and replace the Letter of Intent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Parties agree as follows:
1. Description of Services. In accordance with and subject to the terms
-----------------------
and conditions of this Agreement, WFI hereby agrees to provide Client with the
services (the "Services") listed in the executed Work Order(s) on an hourly or
turnkey basis as agreed by the Parties.
2. Term of Agreement. The term of this Agreement shall be two years from
-----------------
the Effective Date unless otherwise terminated in accordance with this Agreement
(the "Initial Term"). The term of this Agreement will automatically renew for
successive terms of one (1) year (each, a "Renewal Term") unless either Party
communicates in writing to the other Party, thirty (30) days prior to expiration
of the Initial Term or current Renewal Term, its intention not to
renew the Agreement.
3. Compensation. Client shall pay WFI for all Services assigned by and
------------
rendered to Client pursuant to this Agreement and to any and all Work Orders
issued hereunder, based upon the pricing set forth in Exhibit I, unless a Work
---------
Order specifically sets forth other pricing terms applicable to that particular
Work Order ("Service Fees"). Where Services are compensated based upon fixed or
milestone-based pricing rather than per-hour pricing, all work performed by WFI
at Client's request in addition to the Services specifically set forth in any
particular executed Work Order(s) ("Out-of-Scope Services") shall be compensated
at the hourly rates agreed upon by the Parties and set forth in Exhibit I.
---------
Page 1 of 15
<PAGE>
4.
Invoices and Payments.
---------------------
(a) Invoicing terms for compensation of Out-of-Scope Services,
reimbursable expenses and Materials Management Services (as defined in Section 8
below) are set forth in Exhibit I of this Agreement. Unless a Work Order
---------
specifies otherwise, WFI may invoice Client monthly for all Service Fees
(including those for Out-of-Scope Services), whether billed on a milestone basis
or in accordance with WFI's hourly rates, and bi-weekly for any reimbursable
expenses (as described in Exhibit I) and Materials Management Services incurred
---------
in the previous period.
(b) All invoices are due and payable by Client within thirty (30) days of
the date of receipt by Client. Client shall review the invoices and notify WFI
in writing within thirty (30) days of receipt of the invoice of any objection or
question Client may have in connection with the invoice. If any items are
disputed, only the disputed items may be withheld from payment. The remaining
undisputed portion of the invoice shall be paid in accordance with the terms of
this Agreement.
5. Work Orders and Out-of-Scope Authorizations. Client may assign additional
-------------------------------------------
work to WFI by issuing to WFI, from time to time, a signed Work Order, in
substantially the form attached hereto as Exhibit II, or in some other format
----------
agreed upon by the Parties. WFI shall begin to render Services to Client after
WFI has indicated its acceptance of the work by countersigning and returning the
Work Order to Client. Each Work Order shall incorporate by reference all of the
terms and conditions set forth in this Agreement; however, in the case of
conflict between the terms of a Work Order and this Agreement, the terms of the
Work Order shall control, but only for the duration of the Services performed
under that particular Work Order. WFI may perform Out-of-Scope Services at
Client's request. In such event, Client and WFI shall execute an Out-of-Scope
Work Authorization, in substantially the form attached as Exhibit III.
-----------
Authorized out-of-scope work will be compensated in accordance with the hourly
rates set forth in Exhibit I, unless otherwise agreed by the Parties and
---------
specified in writing. Client hereby authorizes the officers listed in Exhibit
-------
IV to sign any Work Orders and Out-of-Scope Work Authorizations issued under
- --
this Agreement. Client shall promptly notify WFI in writing of any changes to
the list of authorized signatories.
6. Taxes. All taxes and similar assessments, levies and government-imposed
-----
obligations with respect to WFI's income derived from its performance of
Services hereunder shall be the obligation of and be paid by WFI. Client shall
pay all other applicable taxes.
7. Subcontractors. WFI may, with the consent of Client, which consent will
not be unreasonably withheld or delayed, delegate to subcontractors such duties
as WFI deems necessary for the successful completion of Services performed for
the Project. WFI shall be responsible to Client for the completion of all work
by subcontractors. If Client chooses to contract directly with subcontractor for
work performed for the Project, then Client shall be responsible for the payment
of service fees and expenses of such subcontractors for work performed in
connection with the Project. If WFI contracts directly with subcontractors for
work performed in connection with the Project, and which work is listed as
"CLIENT Provided or Reimbursed" in the Expense Summary section of Exhibit I,
then Client shall be invoiced and shall reimburse WFI for the service fees and
expenses of subcontractors at cost plus an administrative fee in accordance with
the terms of Exhibit I.
---------
Page 2 of 15
<PAGE>
8. Materials Management Services. At Client's request and written
-----------------------------
authorization, WFI shall procure, pay for, receive and store equipment and
building materials for use on the Project ("Materials Management Services").
Client shall compensate WFI for Materials Management Services by reimbursing WFI
for the cost of such equipment and building materials, together with an
administrative fee as set forth in Exhibit I.
---------
9. Ownership of Data Products and Software. All data products purchased
---------------------------------------
specifically and solely for the Project shall be the property of Client. All
licensed software used by WFI in the performance of Services is and shall remain
the property of WFI unless purchased by WFI for Client on a pass-through basis,
in accordance with the expense reimbursement terms set forth in Exhibit I.
---------
10. Resolution of Disputes. For any dispute or claim arising out of or
----------------------
relating to this Agreement, or breach thereof, the Parties, prior to filing any
claims for binding arbitration (as provided below), shall in good faith first
negotiate a written resolution of such dispute or claim for a period not to
exceed thirty (30) days from the date of receipt of a Party's request for such
negotiation. Executives or managers of each Party who have the authorization to
resolve any such dispute or claim shall conduct such negotiations. In the event
the Parties cannot negotiate a written resolution to such dispute or claim
during the thirty (30) day negotiation period provided hereunder, either Party
may submit the matter to binding arbitration in accordance with the terms set
forth in Paragraph 11 of this Agreement.
11. Arbitration of Disputes. All claims, whenever brought and whether
-----------------------
between the Parties or between one of the Parties and the employees, agents or
affiliated businesses of the other Party shall be resolved by binding
arbitration in accordance with this Paragraph; provided that the Parties have
first complied with the procedures of Paragraphs 4, 10 and 17 hereof, as
applicable.
(a) A single, mutually agreeable arbitrator engaged in the practice of
law and knowledgeable about telecommunications law and engineering practices
shall conduct the arbitration in accordance with the then current commercial
arbitration rules of the American Arbitration Association ("AAA"). The
arbitration shall be conducted in the Seattle, Washington metropolitan area.
(b) All expedited procedures prescribed by the AAA shall apply. The
arbitrator's decision shall state the reasoning by which the arbitrator
determined the award. The arbitrator's decision shall be final and binding and
judgment may be entered in any court having jurisdiction thereof.
(c) Each Party shall pay its own costs and expenses incurred in
connection with the arbitration, including legal fees, and each Party shall pay
one-half the arbitrator's professional fees.
If either Party files a judicial or administrative action asserting
claims subject to arbitration, and the other Party successfully stays such
action and/or compels arbitration of such claims, the Party filing the action
shall pay the other Party's costs and expenses incurred in seeking such stay or
compelling arbitration, including reasonable attorneys' fees.
Page 3 of 15
<PAGE>
12. Breach and Termination.
----------------------
(a) Termination Without Cause. Either Party may terminate this Agree
-------------------------
ment without cause - by sending the other party written notification of such
termination. Such termination shall take effect (60) days after written notice
has been received by the non-terminating Party.
(b) Termination for Breach. The non-breaching Party shall provide the
----------------------
breaching Party thirty (30) business days after receipt of a written termination
notice setting forth the nature of the Breach to cure such Breach. The remedy
for Breach shall be unavailable until the passage of such cure period. For
purposes of this Agreement, Breach shall mean the following:
(i) Breach by Client. Client's failure to timely pay undisputed
----------------
invoiced fees and reimbursable expenses in accordance with
the procedures set forth in this Agreement. In the event of
Client's failure to pay, WFI shall have the right to suspend
its further performance of Services for Client until Client
has cured such failure.
(ii) Breach by WFI. WFI's failure to timely or completely perform,
-------------
in accordance with professional standards obtaining for
similarly situated telecommunications outsourcing firms, the
Services assigned to WFI pursuant to a fully executed Work
Order.
(c) Termination in Event of Default. Either Party may terminate this
-------------------------------
Agreement immediately upon written notice to the other Party under any of the
following circumstances, each of which shall constitute an Event of Default:
(i) the other Party makes an assignment for the benefit of creditors (other than
solely as an assignment of moneys due); (ii) the other Party becomes unable to
pay its debts as they become due, unless assurance satisfactory to the
terminating Party is provided within thirty (30) days of receipt of its notice
of termination hereunder; or (iii) the other Party becomes the subject of a
proceeding, whether voluntary or involuntary, under the bankruptcy or insolvency
laws of the United States or any other jurisdiction, unless such proceeding is
dismissed or withdrawn within forty-five (45) days of the non-defaulting Party's
receipt of the defaulting Party's notice of termination hereunder.
(d) Procedure upon Expiration or Termination. Upon the expiration or
----------------------------------------
termination of this Agreement, WFI shall promptly return to Client, or destroy,
as Client may direct, all of Client's property in WFI's possession. If Client
issues a notice of termination for any reason, WFI shall be entitled to payment
and reimbursement, respectively, for its Services rendered and reasonable
expenses incurred in connection with the Project up to the effective date of
termination of this Agreement, pursuant to its invoices therefor, provided that,
-------------
if the Services are compensated in accordance with a schedule of payment or
performance milestones, then Client shall compensate WFI for all post-milestone
work performed on a time and materials basis in accordance with the hourly rates
and expense payment provisions set forth in Exhibit I. If Client issues a
---------
notice of termination for a reason other than breach of this Agreement, then, in
addition to the Service Fees and expense reimbursements received pursuant to the
foregoing sentence, WFI shall be entitled to (i) Service Fees at the hourly
rates set forth in Exhibit I for actual and necessary work performed and (ii)
---------
reimbursement for any reasonable expenditures (together with the administrative
mark-up
* Confidential Treatment Requested
Page 4 of 15
<PAGE>
set forth in Exhibit I) incurred in connection with WFI's premature winding up
---------
of its work and the work of its subcontractors (if any) on the Project after
receipt of such notice of termination. Under no circumstances shall WFI be
required to reimburse Client for fees or expenses incurred in securing and
compensating replacement providers of any of the Services. Each Party shall
render to the other such reasonable assistance as may be necessary for the
orderly continuation of the other Party's business.
13. Insurance. Commencing on the Effective Date and throughout the term of
this Agreement, WFI shall maintain the following insurance policies:
(a) Commercial General Liability with the following minimum limits:
Combined Single Limit $1,000,000 per occurrence
General Aggregate $2,000,000 per policy period
(b) Workers Compensation with statutory limits
(c) Employers Liability with the following minimum limits:
Each Accident $1,000,000
Disease Policy Limit $1,000,000
Disease Each Employee $1,000,000
(d) Business Automobile Liability Insurance with the following
minimum limits if the performance of this Agreement involves the
use of any automobiles:
Combined
Single Limit $1,000,000
Owned, Hired and Non-Owned Coverage.
14. Year 2000 Compliance. Neither Party shall be liable to the other for
--------------------
any failure to perform obligations under this Agreement to the extent that such
failure arises from a Year 2000 Problem (a) affecting one of that Party's
subcontractors or suppliers, or (b) beyond that Party's reasonable control (such
as, without limitation, a Year 2000 Problem affecting a government entity). IN
PARTICULAR, A PARTY SHALL HAVE NO LIABILITY FOR ANY DAMAGES, INCLUDING DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
ARISING OUT OF A YEAR 2000 PROBLEM. A "Year 2000 Problem" means a date-handling
problem relating to the Year 2000 date change that would cause a computer
system, software or equipment to fail to correctly perform, process and handle
date-related data for the dates within and between the twentieth and twenty-
first centuries and all other centuries.
15. Independent Contractor. WFI is and shall act as an independent
----------------------
contractor in the performance of its obligations under this Agreement. WFI shall
exercise full control of and supervision over its employees. WFI's personnel
performing Services are agents, employees or subcontractors of WFI and are not
employees or agents of Client. Nothing herein shall be deemed to create any
other relationship between the Parties, including, without limitation, a
partnership, agency, employer-employee or attorney-client relation. WFI shall be
solely liable for all matters relating to compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters. WFI will honor Client's
request for the removal of any particular
Page 5 of 15
<PAGE>
employee of WFI from the Project, provided that Client has first submitted a
written request to WFI setting forth lawful and reasonable reasons for such
request.
16. Solicitation of Employees. WFI and Client agree that, during the term
-------------------------
of this Agreement and for [***] thereafter, neither Party shall solicit nor
accept for employment any employees of the other Party who have worked on or
performed Services in connection with the Project, without first obtaining the
express written consent of the other Party.
17. Force Majeure. Neither Party shall be liable for any delay or failure
-------------
in performing its obligations hereunder that is due to circumstances beyond such
Party's reasonable control, including, but not limited to, acts of God, civil
unrest, riots, war, fire, floods, explosions and strikes or other concerted acts
of labor (each, a "Force Majeure Event"). Upon the occurrence of a Force Majeure
Event, the Party whose performance is affected shall give written notice to the
other Party describing the affected performance. The Parties shall promptly
confer, in good faith, to agree upon equitable, reasonable action to minimize
the impact of the condition on both Parties. The Parties agree that the Party
whose performance is affected shall use commercially reasonable efforts to
minimize the delay caused by the Force Majeure Event and recommence the affected
performance. In the event that the delay caused by the Force Majeure Event lasts
for a period of more than thirty (30) days, the Parties shall negotiate an
equitable modification to this Agreement with respect to the affected
performance. If the Parties are unable to agree upon an equitable modification
within fifteen (15) days after such thirty (30) day period has expired, then
either Party shall be entitled to serve thirty (30) days notice of termination
on the other Party with respect to only the affected performance. If the Force
Majeure Event for such affected performance continues upon the expiration of
such thirty (30) day notice period the portion of this Agreement relating to the
affected performance shall automatically terminate. The remaining portion of
this Agreement that does not involve the affected performance shall continue in
full force and effect.
18. LIMITATION OF LIABILITY. THE PARTIES' RIGHTS, LIABILITIES AND
-----------------------
RESPONSIBILITIES WITH RESPECT TO THE SERVICES SHALL BE EXCLUSIVELY THOSE
EXPRESSLY SET FORTH IN THIS AGREEMENT. NEITHER PARTY SHALL BE RESPONSIBLE OR
HELD LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, WHICH
SHALL INCLUDE, WITHOUT LIMITATION: LOSS OF PROFITS, INTEREST, PRODUCT OR
SERVICE; BUSINESS INTERRUPTION; AND INCREASED COSTS OF OPERATION, MAINTENANCE OR
STAFFING.
19. Waivers and Amendments. Waiver by either Party of any default
----------------------
hereunder by the other Party shall not be deemed a waiver of any other default.
No provision of this Agreement shall be deemed waived, amended or modified by
either Party, unless such waiver, amendment or modification is in writing and
signed by the authorized representative of each Party.
20. Governing Law; Consent to Jurisdiction and Venue. Except as may apply
------------------------------------------------
to claims submitted to arbitration under Paragraph 11, this Agreement shall be
construed in accordance with the laws of the State of Washington, irrespective
of its conflict of law principles. Each Party hereby agrees to the jurisdiction
of and venue in the courts in Seattle, Washington for any suit, action or
proceeding between the Parties that arises out of this
* Confidential Treatment Requested
Page 6 of 15
<PAGE>
Agreement or the Parties' performance of their obligations hereunder, and
expressly agrees to waive any defense thereto.
21. Severability. If any provision or any part of a provision of this
------------
Agreement shall be held invalid or unenforceable, then the remaining portions of
that provision and the remainder of the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or portion thereof,
and the rights and obligations of each Party shall be construed and enforced
accordingly.
22. Survival. The terms, conditions and warranties contained in this
--------
Agreement that by their sense and context are intended to survive the
termination or expiration of this Agreement shall so survive; including, without
limitation, the provisions of Paragraphs [***].
23. Assignment. This Agreement is binding upon and inures to the benefit
----------
of the Parties and their respective permitted successors and assigns. A Party
may assign its rights and delegate its duties under this Agreement to any third
party only with the prior written consent of the other Party, except that an
assignment to a third party that controls, is controlled by, is under common
control with, or is the legal successor of the assigning Party shall not require
the non-assigning Party's consent. Any assignment of rights or delegation of
duties under this Agreement by a Party will not release that Party from its
obligations hereunder.
24. Entire Agreement; Modifications. This Agreement, including the
-------------------------------
Exhibits attached hereto, constitutes the entire agreement between the Parties
with respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior and contemporaneous agreements, representations,
statements, negotiations, understandings and undertakings, whether written or
oral, are superseded by this Agreement, including but not limited to the Letter
of Intent. This Agreement may be modified only in a written document signed by
both Parties.
25. Headings; Construction; Incorporation of Recitals. The headings of the
-------------------------------------------------
Paragraphs of this Agreement are inserted for convenience only and are not
intended to affect its meaning or interpretation. Throughout this Agreement, the
singular shall apply to the plural and the plural to the singular, unless the
context clearly indicates otherwise. The recitals set forth in the beginning of
this Agreement are hereby incorporated and made a material part hereof.
26. Jointly Drafted. This Agreement shall be deemed to have been drafted
---------------
by both Parties and, in the event of a dispute, shall not be construed against
either Party.
* Confidential Treatment Requested
Page 7 of 15
<PAGE>
27. Notices. Except as otherwise provided herein, all notices or other
-------
communications to be given or that may be given by either Party to the other
shall be deemed to have been duly given when made in writing and delivered in
person or when deposited in the United States mail, postage prepaid, certified,
return receipt requested or sent via facsimile with confirmation of receipt, and
addressed as follows:
If to WFI:
---------
Dr. Masood Tayebi, President
Wireless Facilities, Inc.
San Diego Tech Center
9805 Scranton Road, Suite 100
San Diego, CA 92121
Telephone: (619) 824-2929
Fax: (619) 824-2928
If to Client:
------------
David Aas
Nextel Partners Operating Corp.
4500 Carillon Point
Kirkland, Washington 98033
Telephone: 425-828-8051
Fax: 425-828-8098
With a Copy to:
Nextel Partners Operating Corp.
4500 Carillon Point
Kirkland, Washington 98033
Attention: General Counsel
The notice addresses may be changed by written notice given by one Party to
the other in accordance with this Paragraph.
Page 8 of 15
<PAGE>
28. Exhibits. The following Exhibits are attached hereto and incorporated
--------
herein:
Exhibit I: Hourly Rates, Expense Reimbursement and Invoice Schedule
Exhibit II: Sample Work Order
Exhibit III: Sample Out-of-Scope Authorization
Exhibit IV: Authorized Signatories
29. Indemnification. WFI will defend, indemnify, and hold harmless Client
---------------
and its officers, directors, employees, subsidiaries, parents, agents and
representatives from and against all claims, damages, losses (including, without
limitation, bodily injury or property damage) costs and expenses (including
without limitation reasonable attorney's fees actually incurred), (collectively,
"Claims"), arising out of, resulting from or caused in whole or in part by the
acts or omissions of WFI, its subcontractors and their respective employees,
agents, and representatives in performing or failing to perform any of the work
or activities contemplated herein, except to the extent that such Claims result
from or are caused by Client, its subcontractors and their respective employees,
agents and representatives.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
NEXTEL PARTNERS OPERATING CORP. WIRELESS FACILITIES, INC.
/s/ David Aas /s/ Dr. Masood Tayebi
______________________________ ________________________
David Aas Dr. Masood Tayebi
Chief Technology Officer President
Page 9 of 15
<PAGE>
Exhibit I
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Hourly Rates, Expense Reimbursement and Invoice Schedule
--------------------------------------------------------
Hourly Rates for Out-of-Scope Services
- --------------------------------------
For all services performed by WFI that are in addition to those described in any
particular executed Work Order(s) ("Out-of-Scope Services"), Client shall
compensate WFI on an hourly basis in accordance with the rates set forth in the
table below. WFI may invoice Client monthly for Out-of-Scope Services rendered
the previous period.
<TABLE>
<CAPTION>
Service Type Employment Category Hourly Rate
---------------------------------------------------------------------------------------------------
<S> <C> <C>
Program Mgmt: Project Manager $[***]
-------------------------------------------------------------------------------------------------
Project Coordinator $[***]
-------------------------------------------------------------------------------------------------
Admin Assistant $[***]
-------------------------------------------------------------------------------------------------
RF Engineering: Manager $[***]
-------------------------------------------------------------------------------------------------
Senior Engineer $[***]
-------------------------------------------------------------------------------------------------
Design Engineer $[***]
-------------------------------------------------------------------------------------------------
Associate Engineer $[***]
-------------------------------------------------------------------------------------------------
Site Acquisition: Leasing Manager $[***]
-------------------------------------------------------------------------------------------------
Zoning Manager $[***]
-------------------------------------------------------------------------------------------------
Site Acquisition Specialist $[***]
-------------------------------------------------------------------------------------------------
Zoning Specialist $[***]
-------------------------------------------------------------------------------------------------
Paralegal $[***]
-------------------------------------------------------------------------------------------------
Construction Mgmt: CM Construction Manager $[***]
-------------------------------------------------------------------------------------------------
CM Operations Manager $[***]
-------------------------------------------------------------------------------------------------
CM Project Coordinator $[***]
-------------------------------------------------------------------------------------------------
CM Utility Coordinator $[***]
-------------------------------------------------------------------------------------------------
CM Field Supervisor $[***]
-------------------------------------------------------------------------------------------------
</TABLE>
Note - these hourly rates do not include expenses.
* Confidential Treatment Requested
Page 10 of 15
<PAGE>
Expense Summary
- ---------------
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses to be reimbursed at
[***]. WFI may invoice Client bi-weekly for reimbursable pass-through expenses
and administrative fees.
<TABLE>
<CAPTION>
WFI CLIENT Provided or
Included Reimbursed to WFI
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
Expense Summary:
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Wireless Phones/Pagers [***] [***]
Wireless/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Rent, Furniture & Equipment [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware - computer and plotter) [***] [***]
Intermodulation/Isolation Software [***] [***]
Airspace Software [***] [***]
Test Phones/Service with Test Software (for engineers) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Telephone/FAX Service (local/long distance) [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Utilities [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
* Confidential Treatment Requested
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<PAGE>
Materials Management Services
- -----------------------------
If requested by Client, WFI will perform Materials Management Services (as
defined in Section 8 of the Agreement). Client shall reimburse WFI for Materials
Management Services as a pass-through expense at [***]. WFI may invoice Client
bi-weekly for Materials Management Services costs and administrative fees.
* Confidential Treatment Requested
Page 12 of 15
<PAGE>
Exhibit II
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Sample Work Order
-----------------
WORK ORDER NO.:
----
DATE: , 199
------------ --
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement")
dated , 199 by and between Nextel Partners, Inc. ("Client"), and
--------- --
Wireless Facilities, Inc. ("WFI") and according to the following terms:
1. Assignment: The following illustrates the Services and specific tasks to be
performed by WFI:
[Description of Services and tasks - See attachments]
2. Invoicing for Services Fees and Reimbursement of Expenses: WFI shall invoice
Client for the Services in accordance with the schedule of Payment
Milestones per Attachment to this executed Work Order. WFI shall
------
invoice Client for Service Fees for Out-of-Scope Services, reimbursable
expenses (together with applicable administrative fees) and Materials
Management Services, if any (together with applicable administrative fees)
in accordance with Exhibit I of the Agreement.
---------
3. Payment of Invoices: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section 4(b) of the Agreement.
4. Commencement of Services: WFI shall commence performance of the Services
immediately upon full execution of this Work Order.
5. Master Services Agreement: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
NEXTEL PARTNERS OPERATING CORP. WIRELESS FACILITIES, INC.
By: By:
-------------------------- ------------------------
Name: Name:
------------------------ ----------------------
Title: Title:
----------------------- ---------------------
Page 13 of 15
<PAGE>
Exhibit III
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Sample Out-of-Scope Work Authorization Memo
-------------------------------------------
Memo
To: [Individual and Client Company Name]
From: WFI Employee Name and Title
cc:
Date:
Re: Request for Out-of-Scope Work Authorization
- -------------------------------------------------------------------------------
WFI has been requested to perform the following services not listed in our
Master Services Agreement:
- --------------------------------------------------------------------------------
[description of services]
- --------------------------------------------------------------------------------
I have estimated that the time required to perform these Out-of-Scope Services
is hours which will be the maximum hours you will be billed for this
------
additional service. Should we spend less time to perform the services required,
you will, of course, be billed for the lower number of hours at the rates
specified in our Master Services Agreement dated , 1999 and applicable
------
Work Orders. We will also bill you for expenses incurred to perform these
services, in accordance with the provisions of the Master Services Agreement and
applicable Work Orders.
I would appreciate it if you will sign below to indicate your agreement and
acceptance. If I do not receive from you a signed copy of this Authorization
Memo, WFI will, nevertheless (unless we hear otherwise) begin to perform the
above-reference services pursuant to 's [name of authorizing
----------
individual] verbal request made on , 1999.
--------
Please call me at if you have any questions.
----------------
Accepted & Approved:
[FULL NAME OF CLIENT COMPANY]:
By:
--------------------------------
Name and Title:
--------------------
DATE:
------------------------------
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<PAGE>
Exhibit IV
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Authorized Signatories for Work Orders and Out-of-Scope Authorizations
----------------------------------------------------------------------
Each Party hereby authorizes the following individuals to execute Work Orders
and Out-of-Scope Authorizations issued under this Agreement. Such documents,
when signed by any of the following individuals for each Party, shall be
presumptively binding on the Parties.
Authorized Signatories for Nextel Partners, Inc.:
- ------------------------------------------------
Mr. David Aas
Mr. Ray Farrell
Mr. Peter Gaffney
Authorized Signatories for Wireless Facilities, Inc.:
- ----------------------------------------------------
Dr. Masood Tayebi, President
Mr. Michael Brink, Sr. Vice President, Project Management
Mr. John Vento, Sr. Vice President, Site Development Services
Mr. Jeff Bader, Sr. Director, Project Management
Page 15 or 15
<PAGE>
EXHIBIT 10.24
---------------------------------
Confidential Treatment Requested
Under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
Agreement
between
Siemens Aktiengesellschaft, Berlin and Munchen,
Federal Republic of Germany,
represented by the Business Unit Mobile Networks,
- hereinafter referred to as "SIEMENS"-
and
Wireless Facilities Inc., San Diego, CA
United States of America
- hereinafter referred to as "CONSULTANT"-
Preamble
Article 1 - Scope of CONSULTANCY-SERVICES
1.1 Siemens' Public Communication Networks Group, Mobile Networks is
performing radio network planning services for worldwide Projects.
Subject to the terms and conditions of this agreement SIEMENS
(including any SIEMENS company which is owned or controlled either
directly or indirectly by Siemens as to 50 % (fifty percent) or more
of the issued share capital and/or voting rights)
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<PAGE>
hereby entrusts CONSULTANT with the performance of such radio network
planning projects (hereinafter collectively referred to as,
"CONSULTANCY-SERVICES"):
1.2 SIEMENS will assign the CONSULTANCY-SERVICES to CONSULTANT in advance
on a case by case basis depending on the duration and kind of the
assignment and in accordance with the timetable that follows:
One (1) week: On short notice (up to 2 working days)
Up to (4) weeks support: Two (2) weeks
Up to three (3) months: One (1) month
Over three (3) months support: Mutually agreed between SIEMENS and
CONSULTANT
1.3 Any and all CONSULTANCY-SERVICES shall be rendered in such manner, in
accordance with such standards and specifications, and at such dates
and times or in accordance with such schedules as requested or
prescribed by SIEMENS from time to time. Unless specified and agreed
otherwise specifically between SIEMENS and the CONSULTANT in writing,
all tools and materials required by CONSULTANT shall be provided by
CONSULTANT and any compensation to be paid to CONSULTANT by SIEMENS
includes payment for use of CONSULTANT's facilities, tools, materials
and equipment.
CONSULTANT shall be available through the term of this Agreement so as
to promptly respond to all requests or requirements of SIEMENS, it
being understood by CONSULTANT that time is of the essence in
CONSULTANT's performance of the CONSULTANCY SERVICES under this
Agreement.
1.4 Irrespective of the fact, that rendering CONSULTANCY-SERVICES as set
forth in this Agreement is the sole responsibility and liability of
the CONSULTANT, SIEMENS' personnel shall constantly be involved in the
CONSULTANT'S work at all stages. Such SIEMENS personnel shall be given
full opportunity to become familiar with the relevant aspects
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<PAGE>
of CONSULTANT's CONSULTANCY SERVICES and be directly involved in the
preparation of the Deliverables as per Article 5 below.
Article 2 - Basis of this Agreement
2.1 This Agreement is concluded on the basis that:
(a) with regard to the scope of work specified in Article 1 the
CONSULTANT may not assign or subcontract any of its duties
without the prior written consent of SIEMENS. However, the
CONSULTANT may engage other contractors to assist the CONSULTANT
in providing the CONSULTANCY SERVICES under this Agreement,
provided, that the CONSULTANT obtains the prior written consent
(such consent not to be unreasonably withheld) of SIEMENS. The
CONSULTANT will be solely responsible for and pay the fees, and
out-of-pocket expenses of the CONSULTANT's contractor, except
where SIEMENS has initially asked the CONSULTANT to engage
CONSULTANT's contractors, in which event SIEMENS shall be
responsible for such fees and expenses, and provided, that the
CONSULTANT has obtained SIEMENS' prior written approval of the
terms of engagement of such CONSULTANT's contractors.
(b) SIEMENS may engage such other consultants as may in SIEMENS
opinion be required in connection with matters in relation to
which the CONSULTANT is advising including technical consultants,
legal consultants and accountants;
2.2 For rendering the CONSULTANCY-SERVICES the CONSULTANT has set up a
project-team, which consists of experienced CONSULTANT's with broad
expertise in the telecommunication business including the managerial,
administrative and quality aspects. The CONSULTANT hereby represents
and warrants that all consultants have international expertise and, in
addition, all
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consultants' have excellent communication skills and experience in
client oriented projects with needs for organisational development.
The members of the team will not be changed without the prior
written consent of SIEMENS which consent shall not be
unreasonably withheld. Furthermore, the CONSULTANT will replace
upon written request of SIEMENS at any time any member of the
team.
2.3 The CONSULTANT represents and warrants that:
(a) it is duly established and validly existing under the laws of its
jurisdiction of incorporation and has full power, capacity and
authority to conduct its business, and is lawfully qualified to
do business in those jurisdictions in which such qualification is
required;
(b) it has full power and capacity to execute and perform this
Agreement;
(c) it has full power and capacity to undertake and perform the
obligations assumed by it herein;
(d) this Agreement has been duly authorised and executed by it and
constitutes its legal, valid and binding obligations enforceable
in accordance with its terms;
(e) the execution and performance of this Agreement do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, its statutes or
articles of incorporation or laws or by-laws or any agreement or
instrument by which it is bound or to which its properties are
subject;
(f) neither it nor any of its subsidiaries is involved in any legal,
arbitration or administrative proceedings nor are any such
proceedings pending against it or any of its subsidiaries which
in either case have or may have a
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material adverse effect on its ability to perform this Agreement,
its financial position or on its and its subsidiaries' financial
position taken as a whole;
(g) all CONSULTANCY-SERVICES provided hereunder shall be performed in
good faith and in a professional manner with due care and
attention and in accordance with good CONSULTANT practice and
standards and according to the latest technical standards;
(h) it recognises the importance of this appointment and will commit
the resources appropriate and necessary to the fulfillment of its
obligations and will assign to it the priority necessary to meet
the milestone schedule as per Article 5.1 below;
(i) it will use all reasonable efforts to meet deadlines reasonably
set by SIEMENS which deadlines shall be in addition to and shall
in no way affect the milestone schedule as mentioned in Article
5.1 below;
(j) it will promptly notify SIEMENS in writing of any potential or
actual conflict of interest on its part of which it becomes
aware.
Article 3 - Duties and obligations of the CONSULTANT
3.1 The CONSULTANCY-SERVICES shall be performed in a workmanlike and
professional manner by the CONSULTANT or employees of the CONSULTANT
having a level of skill in the area commensurate with the requirements
of the Consulting Service to be performed and the applicable
professional standards currently recognized by such profession.
3.2 SIEMENS and the CONSULTANT shall each nominate to the other Party in
writing a project leader who is well experienced to give information
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<PAGE>
and support for the implementation and performance of this Agreement
and who shall be in the position to take related decisions or to
introduce them.
3.3 While performing the CONSULTANCY-SERVICES the CONSULTANT will maintain
close contact with SIEMENS.
Additionally SIEMENS and the CONSULTANT agree to consult and, if
necessary to meet with each other in order to resolve any ambiguities
or differences concerning the CONSULTANCY-SERVICES.
Article 4 - Duties and obligations of SIEMENS
4.1 SIEMENS will upon request provide the CONSULTANT with the information
necessary to render the CONSULTANCY SERVICES.
4.2 Furthermore SIEMENS will participate in the project-team as mentioned
in Section 1.3 above, which means that SIEMENS will assist the
CONSULTANT in the performance of the CONSULTANCY-SERVICES.
4.3 CONSULTANT is and shall remain at all times an independent contractor,
and is not an employee, agent or representative of SIEMENS.
Further, CONSULTANT is not authorized to and shall not at any time
attempt to act, or act on behalf of SIEMENS to bind SIEMENS in any
manner whatsoever to any obligation whatsoever. Further, CONSULTANT
shall not engage in any acts which may lead any person whomsoever to
believe that CONSULTANT is a employee, agent or representative of
SIEMENS. SIEMENS shall be promptly notified by CONSULTANT in writing
of any misunderstanding by third parties as to CONSULTANT'S
relationship with SIEMENS.
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<PAGE>
Article 5 - Prices, Discounts, Terms of Payment
5.1 The prices which CONSULTANT shall charge SIEMENS are as follows (in
US$ per hour):
<TABLE>
<CAPTION>
--------------------------------------------------------------
Expertise Level [***] Engineers* [***] Engineers*
--------------------------------------------------------------
<S> <C> <C>
Technician $ [***] $ [***]
--------------------------------------------------------------
Associate $ [***] $ [***]
--------------------------------------------------------------
Design Engineer $ [***] $ [***]
--------------------------------------------------------------
Senior Engineer $ [***] $ [***]
--------------------------------------------------------------
Manager $ [***] $ [***]
--------------------------------------------------------------
</TABLE>
*means number of WFI-Engineers contracted
simultaneously in the entirety of SIEMENS-
projects
Per-site-prices for Turnkey-Projects may be mutually agreed on a per
project basis.
The minimum Qualifications for the above Expertise Levels are the
following:
Technician
. Associate degree
. Ability to gather measurement data
. Drive test vehicles
. Set up test equipment
. Data Collection
Associate Engineer
. B.S.E.E. degree
. Basic understanding of system design
. Ability to gather measurement data
. Set up test transmitters
. Basic understanding of system expansion
. Understanding of traffic analysis
. Ability to optimize site locations and parameters
. Release search areas
Design Engineer
. B.S.E.E. with 1-2 years experience
. Propagation analysis
. System design
. Cell planning
* Confidential Treatment Requested
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. System optimization
. Field survey and measurements
. Parameter setting
. Experience with PlaNET, CeVCAD, QED, and Odyssey RI propagation
software
Senior Engineer
. B.S.E.E. or advanced technical degree with 3-5 years cellular or
related experience
. Capabilities of Associate Engineer through Senior Engineer plus:
. Ability to manage team of engineers in Turnkey Engineering for
system size up to 200 sites
Manager
. Advanced degree with 5-10 years cellular or related experience.
. Capabilities of Associate Engineer through Senior Engineer plus
. Ability to manage team of engineers in Turnkey Engineering for
large systems, up to 400 sites
. Management experience leading technical teams
. Proven track record meeting schedule and budget objectives
. Operator experience
. Spectrum sharing experience with ability to identify and prioritize
microwave incumbents.
5.2 The foregoing amounts include all costs and expenses, including the
daily allowance fees (per diem rate), incurred by CONSULTANT pursuant
to this Agreement or as may be required or incurred on the performance
of CONSULTANT's obligations under this Agreement; provided that the
prior written consent of SIEMENS is secured in each instance and
CONSULTANT provides to SIEMENS evidence and prove of payment.
For the cities/regions listed in APPENDIX 1, where the allowance fees
substantially exceed the world wide average, a mark-up to the charges
listed in (S)5.1 may be mutually agreed on a project-specific basis.
* Confidential Treatment Requested
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<PAGE>
SIEMENS agrees to reimburse CONSULTANT for any ordinary and reasonable
costs and expenses incurred for traveling pursuant to the terms and
conditions of this Agreement, in general limited to the following
expenses:
<TABLE>
<CAPTION>
---------------------------------------------------------------
Item Expenses
---------------------------------------------------------------
<S> <C>
accommodation Maximum: four star hotel
Airline ticket (per 3 month) Coach Ticket
Rental cars Will be provided by SIEMENS
(project)
---------------------------------------------------------------
</TABLE>
5.3 Income, sales or any other duties or taxes levied on CONSULTANT by
reason of any payments made by SIEMENS to CONSULTANT shall be the
responsibility of and be borne by CONSULTANT.
Article 6 - Results of CONSULTANCY-SERVICES
6.1 All ideas, inventions, innovations, improvements, know-how, materials,
works, writings, notes, reports, publications and information
collected, assembled, conceived, authored, created, suggested,
originated, developed, constructed, rendered or provided by the
CONSULTANT as a result of or in the course of CONSULTANT's
CONSULTANCY-SERVICES (hereinafter referred to as "Results") shall be
the sole property of SIEMENS.
CONSULTANT expressly acknowledges that all copyrightable materials
written, developed, produced, or which otherwise arise out of the
CONSULTANCY-SERVICES performed by the CONSULTANT under this
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<PAGE>
Agreement shall be owned by SIEMENS. CONSULTANT hereby transfers and
assigns to SIEMENS all right, title and interest in and to the same.
6.2 If and to the extent the Results make use of pre-existing information
of the CONSULTANT including but not limited to any kind of
intellectual property rights such as patents, patent applications or
copyrights (hereinafter referred to as "Background Information"), the
CONSULTANT herewith grants to SIEMENS the non-exclusive, perpetual,
fully-paid up license to use and sublicense such Background
Information in any way it wants.
6.3 Without limiting the effect of Sections 6.1 and 6.2 above, CONSULTANT
shall be entitled to use the concepts of general application contained
in the Results (but not those specifically applicable to the Project)
for other projects and may produce and keep copies of the Results for
archival purposes, subject to the CONSULTANTS confidentiality and
other obligations hereunder.
Article 7 - Confidentiality
7.1 All information provided by SIEMENS to the CONSULTANT as well as any
advice, data and information including but not limited to the Results
developed by the CONSULTANT under this Agreement (hereinafter referred
to as "Confidential Information") shall be treated by the CONSULTANT
as confidential and shall not be disclosed by the CONSULTANT to a
third party or published without the prior written consent of SIEMENS.
CONSULTANT will limit the disclosure of Confidential Information to
those of its employees who have a reasonable need to know that
Confidential Information for the performance of this Agreement and who
shall be bound to confidentiality by their employment agreements or
otherwise.
7.2 The obligations as per Section 7.1 above shall not apply, however, to
any information which:
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<PAGE>
(a) CONSULTANT can demonstrate, is already in the public domain or
becomes available to the public through no breach by CONSULTANT
of this Agreement;
(b) was rightfully in CONSULTANT'S possession without confidentiality
obligation prior to receipt from SIEMENS as proved by CONSULTANT'
written records;
(c) can be proved to have been rightfully received by CONSULTANT from
a third party without confidentiality obligation;
(d) is independently developed by CONSULTANT as proved by its written
records.
(e) is required to be disclosed by law or the rules of any
governmental organisation.
7.3 This Article 7 shall survive any termination or expiration of this
Agreement.
Article 8 - Force Majeure
8.1 Neither Party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the
time and to the extent such failure or delay is caused by force
majeure such as, but not limited to, riots, civil commotion's, wars,
strikes, lock-outs, hostilities between nations, governmental laws,
orders or regulations, actions by the government or any agency
thereof, storms, fires, sabotages, explosions or any other
contingencies beyond the reasonable control of the respective Party
(hereinafter referred to as "Force Majeure"). In such events, the
affected Party shall immediately inform the other Party of such
circumstances together with documents of proof and the performance of
obligations hereunder shall be suspended during, but not longer
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than, the period of existence of such cause and the period reasonably
required to perform the obligations in such cases.
8.2 Should circumstances of Force Majeure uninterruptedly continue for a
period of more than3months,then either Party has the right to
forthwith terminate this Agreement by registered letter Upon notice of
its intention to terminate the Agreement which notice has to be given
not later than fourteen days prior to the intended date of termination
of the Agreement. The Parties may also negotiate for a reasonable
extension or adjustment of this Agreement.
Should the Agreement be terminated according to this Section 8.2 the
CONSULTANT is entitled to the payment which has become due up and
until the date of termination.
Article 9 - Term and Termination
9.1 This Agreement becomes effective with its execution by both Parties.
9.2 Either party shall have the right to terminate this Agreement by
providing three calendar months notice to the other. Should the
Agreement be terminated according to this Section 9.2 the CONSULTANT
is entitled to the payment which has become due up and until the date
of termination.
Article 10 - Substantive Law
All disputes shall be settled in accordance with the provisions of
this Agreement and its Annexes and all other agreements regarding its
performance, otherwise in accordance with the substantive law in force
in the Federal Republic of Germany without reference to other laws.
The United Nations Convention on Contracts for the International Sale
of Goods of April 11, 1980 shall not apply.
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Article 11 - Arbitration
11.1 Any differences or disputes arising out of or in connection with this
Agreement or out of or in connection with agreements regarding its
performance, including any questions regarding the existence, validity
or termination of this Agreement or agreements regarding its
performance, during the term of this Agreement or thereafter shall be
settled by an amicable effort on the part of both Parties hereto. An
attempt to arrive at a settlement shall be deemed to have failed as
soon as one of the Parties so notifies the other Party in writing.
11.2 If an attempt at settlement has failed, the dispute shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce in Paris (Rules) by three
arbitrators appointed in accordance with the Rules.
11.3 The place of arbitration shall be Munchen, Federal Republic of
Germany. The procedural law of this place shall apply where the Rules
are silent.
11.4 The arbitral award shall be substantiated in writing. The arbitral
tribunal shall also decide on the matter of costs of the arbitration.
11.5 The arbitration procedure shall be conducted in the English language.
Article 12 - Miscellaneous
12.1 All changes and amendments to this Agreement must be in writing to be
valid. This requirement of written form can only be waived in writing.
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<PAGE>
12.2 Notices and communications between the CONSULTANT and SIEMENS shall be
given in writing or by facsimile in the English language to the
following addresses of the Parties or to such other address as the
Party concerned may subsequently notify in writing to the other Party:
If to the CONSULTANT to: Wireless Facilities Inc.
Kevin C. Ormsby
Director Sales and Marketing
9725 Scranton Road, Suite 140
San Diego, CA 92121, USA
Tel.: +1 (619) 824 2929 ext. 25
Fax: +1 (619) 824 2928
If to SIEMENS to: SIEMENS Aktiengesellschaft
Dr. Alfred Schorgg
ON MN VN14
Hofmannstrasse 51
81359 Munchen, GERMANY
Tel.: +49/89/722-44329
Fax: +49/89/722-31304
12.3 Neither Party shall assign its rights nor delegate performance of its
obligations under this Agreement to any third party without the prior
written consent of the other Party and any attempted assignment
without this consent shall be null and void.
12.4 Should individual provisions of this Agreement be legally ineffective
or unfeasible for legal reasons then, unless the basic intentions of
the Parties under this Agreement are substantially jeopardized, the
validity of the remaining provisions of this Agreement shall not be
affected thereby. In such a case the Parties shall come to an
agreement approximating as closely as possible the arrangement
originally envisaged in this Agreement.
* Confidential Treatment Requested
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<PAGE>
12.5 A waiver of any default by either Party of any of the terms and
conditions of this Agreement shall not be deemed to be a continuing
waiver or a waiver of any other provisions of this Agreement, but
shall apply solely to the instances to which such waiver is granted.
In Witness Whereof, the Parties hereto have caused these presents to be executed
in duplicate by the respective representatives thereunto duly authorized, on the
dates below and shall keep one executed copy each.
San Diego, Munchen,
Wireless Facilities Incorporated Siemens Aktiengesellschaft
/s/ Masood K. Tayebi /s/ illegible signature
Masood K. Yayebi illegible
President
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Appendix 1
List of cities/regions, where a additional mark-up concerning the charges listed
in (S)5.1 may be mutually agreed on a per project basis:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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<TABLE>
<S> <C>
EXHIBIT 10.25
---------------------------------
Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
--------------------------------
</TABLE>
TRITON / WFI MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (this "Agreement") is entered into effective
as of January 19, 1998 (the "Effective Date") by and between TRITON PCS
OPERATING COMPANY, L.L.C., a Delaware limited liability company (the "Company"),
and Wireless Facilities Inc., a New York corporation that is in the process of
reincorporating in Delaware ("Contractor") (collectively, the "Parties"). The
Company desires to engage Contractor to perform the "Services," as defined
below, and Contractor desires to provide the Services. Therefore, the parties
agree as follows:
1. Services. The Company hereby engages Contractor as an independent
--------
contractor to provide the services set forth in Exhibit A hereto (the
---------
"Services").
2. Independent Contractor Relationship. Contractor shall act as an
-----------------------------------
independent contractor to the Company, and nothing in this Agreement shall be
deemed to create a relationship of employer-employee, principal-agent, partner,
or joint venture between Contractor and the Company. Neither party has any
authority to bind the other to any contract or agreement without the other's
written permission. The Company has no power to supervise, give directions or
otherwise regulate Contractor's operations, although the Company will be
supervising the Contractor's personnel that Contractor is supplying pursuant to
this Agreement. Notwithstanding the foregoing, the Company shall retain the
right to request in writing upon fifteen (15) days' notice thereof that any
employee of Contractor who does not have the requisite skills be removed from
the job. No reasonable request of the Company shall be refused concerning the
dismissal or reassignment of personnel in conformance with this section.
Contractor shall be solely responsible for payment of compensation to
Contractor's employees and for all of Contractor's federal, state and local
payroll taxes, withholding, social security, and unemployment insurance.
Neither party is an agent of the other party and neither has the authority to
represent the other party as to any matters.
3. Term. The term of this Agreement shall begin on the Effective Date,
----
and shall expire on the second (2nd) anniversary of the Effective Date (the
"Initial Term"). The term shall automatically renew for eight (8) successive one
(1) year periods, unless either party provides the other with written notice of
its intent not to renew the term of this Agreement at least sixty (60) days
prior to the expiration of the Initial Term or any renewal term. During the
Initial Term and any renewal terms (collectively, the "Term"), in addition to
the services described in Exhibit A, Contractor shall be the Company's
---------
preferred radio frequency engineering vendor/provider and shall have a right of
first refusal on all radio frequency engineering projects awarded by the Company
or any affiliate or joint venture of the Company. In any event, the termination
or expiration of the Term shall not reduce or terminate the Company's payment
obligations for services provided to the date of termination or the Parties'
confidentiality obligations under Section 9 of this Agreement. Upon termination
of the Term, all physical property of the parties shall be returned to the
proper party, including any cellular telephones or related equipment.
<PAGE>
4. Early Termination. The Term may be terminated early:
-----------------
4.1. Termination for Breach. By Company or Contractor, immediately
----------------------
upon written notice of termination, in the event of a material breach of this
Agreement by the other party, if such breach continues uncured for a period of
[***]business days after receipt of written notice of such breach.
4.2. Termination for Insolvency. By Company or Contractor,
--------------------------
immediately upon written notice of termination by the other Party, in the event
the other Party shall: (i) become insolvent; (ii) make an assignment for the
benefit of creditors; (iii) file a voluntary bankruptcy petition; (iv) acquiesce
to any involuntary bankruptcy petition; (v) be adjudicated bankrupt; or (vi)
cease to do business (other than as a result of an acquisition or merger).
4.3. Return of Information. Upon termination of this Agreement, the
---------------------
parties hereto shall, within thirty (30) days return all of the other party's
information in written, graphic or tangible form relating to this Agreement.
Notwithstanding the foregoing, upon the Company's payment for all Services
provided through the date of termination, the Company shall be entitled to
retain on a non-exclusive basis, any and all work product prepared or assembled
by Contractor through the day of termination.
5. Payment. The Company shall pay Contractor for the Services performed
-------
pursuant to this Agreement as specified in Exhibit B. The prices ("Prices") set
---------
forth in Exhibit B shall be fixed for each Site during the Term of the Agreement
---------
unless a specific change is mutually agreed to by the Parties in writing.
Contractor shall submit invoices for each payment due on a Site as set forth in
Exhibit B. The Company agrees that the invoice amount is correct, conclusive
- ---------
and binding unless the Company notifies Contractor in writing no later than
fourteen (14) days following the invoice date that the Company disputes a
particular item in an invoice. The Company's objection to a particular item in
an invoice shall not reduce or delay the Company's obligations to pay the
remaining portion of a particular invoice. To mitigate for the expenses and
costs the parties reasonably anticipate will occur, any invoice that remains
unpaid more than thirty-five (35) days after the invoice date shall
automatically incur a late payment charge equal to [***] percent ([***]%) of the
amount charged on the unpaid invoice, and the overdue amount owing on the
invoice shall thereafter be assessed a finance charge equal to the lesser of:
(i) [***] percent ([***]) per month, or (ii) the highest interest rate permitted
by law. The Company shall pay all invoices within thirty (30) days from the date
of the invoice without right of offset. Contractor shall not file any mechanics
liens with respect to the Services prior to adjudication of any disputes between
the parties.
6. Insurance. Contractor shall maintain comprehensive general liability
---------
insurance coverage in an amount not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury or death, personal injury and property damage
liability. Contractor shall name the Company as an additional insured on all
applicable policies. Contractor shall promptly provide the Company with proof of
such insurance as reasonably requested by the Company.
* Confidential Treatment Requested
2
<PAGE>
7. Information Reporting. In order to track the progress of each site,
---------------------
Company requires the Contractor to adhere to the following reporting methods:
7.1. Site Data Reporting. In addition to the Services in Exhibit A,
------------------- ---------
there are a number of data items that must be documented, communicated and
stored by Contractor on behalf of the Company. Contractor will provide such
additional information as reasonably required by the Company.
7.2. Schedule and Milestone Data Reporting. Contractor will maintain
-------------------------------------
an accurate and up to date schedule of its engineering activities in a format
reasonably acceptable to the Company.
8. Indemnity. Each of Contractor and the Company agree to defend,
---------
indemnify and hold harmless the other and all of their affiliates or
subsidiaries companies, their officers, agents and employees from any all costs,
damages, expenses, losses, claims, actions, suits, causes of action, judgments,
and charges of every kind and nature whatsoever, including reasonable attorney's
fees, which may in any manner arise out of or relate to the performance or non-
performance of this Agreement, except as this obligation is limited by Section
11 (Remedies).
9. Protection of Confidential Information and Employees.
----------------------------------------------------
9.1. Confidentiality. Each Party, including its affiliates,
---------------
officers, directors, representatives and agents, shall hold confidential
information received from the other party in confidence, shall use such
information only for the purpose and in accordance with this Agreement, and
shall not disclose such information to any third party without the prior express
written approval of the disclosing party. All confidential information shall
remain the property of the disclosing party and shall be returned on written
request or upon termination of this Agreement. Confidential information shall
not include information that: (i) is or becomes publicly known for no wrongful
act, fault or negligence of the non-disclosing party; (ii) was known by the non-
disclosing party prior to disclosure and the non-disclosing party was not under
a duty of non-disclosure; (iii) was disclosed to the non-disclosing party by
someone not a party to this agreement who was free of obligations of
confidentiality to the disclosing party; (iv) is approved for release by written
authorization of the disclosing party; (v) is publicly disclosed pursuant to a
requirement or request of a governmental agency or where disclosure is required
by operation of law; or (vi) is furnished to someone not a party to this
Agreement by the disclosing party without a similar restriction on rights.
9.2. Employee Protection. During the Term and for a period lasting
-------------------
[***] beyond the Term, neither Party shall directly or indirectly solicit for
hire, contract with, retain, or employ anyone employed by the other Party during
the Term.
10. Warranties.
----------
10.1. No Violation. The Company and Contractor warrant that the
------------
execution of this Agreement and their performance of their respective
obligations hereunder does not now and will not in the future violate any
agreement with any third party, or any obligation to any third party.
* Confidential Treatment Requested
3
<PAGE>
10.2. Registration Requirements. Contractor warrants that Contractor
-------------------------
has complied with all applicable registration and licensing requirements to
enable Contractor to act as an independent contractor under the terms of this
Agreement.
11. Remedies. Upon the sending of written notice to the Company of
--------
completion of an item set forth in Exhibit A, the Company shall have [***] days
---------
(the "Warranty Period") to provide written notice to Contractor requiring
Contractor to repair or remedy all defects solely caused by Contractor in
completing the item. This shall be the Company's exclusive remedy. Failure of
the Company to give timely notice during the Warranty Period shall be deemed a
waiver of any right, claim, damages, injury or liability that the Company may
have against Contractor. Contractor shall have up to [***] days at its election
to repair or remedy the defects or else return to the Company the amount
actually received by Contractor for that item.
11.1. Inapplicability. In no event shall Contractor's obligations
---------------
arise for any damage or defect to the extent it is caused or made worse by:
11.1.1. Negligence, improper maintenance or improper operation
by anyone other than WFI or WFI's employees, agents or subcontractors; or
11.1.2. Failure by the Company or by anyone other than
Contractor or Contractor's employees, agents or subcontractors to comply with
the warranty requirements of manufacturers of equipment or other components; or
11.1.3. Failure by the Company to give notice to Contractor of
any defects during the Warranty Period; or
11.1.4. Changes, alterations or additions made to the work by
anyone other than Contractor; or
11.1.5. The failure of anyone other than Contractor to
maintain the work properly; or
11.1.6. Loss or damage that the Company has not taken
reasonable and timely action to minimize; or
11.1.7. Any defect in, caused by, or resulting from, materials
or work supplied by anyone other than Contractor, its employees, agents or
subcontractors; or
11.1.8. Normal wear and tear or normal deterioration; or
11.1.9. Loss or damage caused by, or resulting from,
accidents, riot and civil commotion, fire, explosion, smoke, water escape,
falling objects, aircraft, vehicles, Acts of God, lightning, windstorm, hail,
flood, mudslide, earthquake, volcanic eruption, wind-driven water, or changes in
the underground water table; or
11.1.10. Loss or damage caused by, or resulting from, seepage
of water; or
* Confidential Treatment Requested
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11.1.11. Bodily injury or damage to personal property.
11.2. Disclaimer of Warranties. Following the Warranty Period,
------------------------
Contractor shall have no further obligations to the Company for the particular
item. Except as specifically provided herein, CONTRACTOR DISCLAIMS ALL
WARRANTIES OF EVERY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.3. Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED
-----------------------
HEREIN, CONTRACTOR SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER LEGAL THEORY. Notwithstanding anything in this Agreement to
the contrary or elsewhere, in no event shall Contractor be liable in the
aggregate for more than Contractor actually received from the Company under this
Agreement.
12. Patents. Contractor represents and warrants that it is authorized to
-------
use, install, or disclose materials, techniques, devices, or information as may
be required to perform the Services required hereunder other than those supplied
by the Company or other parties not affiliated with Contractor, and that all
necessary royalties or license fees have been paid. Subject to this Agreement,
Contractor shall save, defend, hold harmless, and indemnify the Company from any
and all claims, suits and proceedings for the infringement of any patent,
copyright, trade secret or other intellectual property rights arising from the
performance of this Agreement.
13. Protection of Persons and Property.
----------------------------------
13.1. Precautions. Contractor shall at all times take reasonable
-----------
precautions to protect the persons and property of others which may be on or
adjacent to the site of performance of Contractor's obligations hereunder from
damage, loss or injury resulting from performance under this Agreement by
Contractor or any other party with whom Contractor may have subcontracted.
Contractor shall not disturb or displace any protection installed by others.
Subject to this Agreement, any property moved or damaged by Contractor during
the course of performance of the work hereunder shall be returned or repaired by
Contractor, at Contractor's expense, to the Company's reasonable satisfaction.
13.2. Notification of Injury or Damage. Contractor shall promptly
--------------------------------
notify the Company upon learning of any injury, death, loss or damage to any
persons, animals or property that is related to or occurs at the Services site
during the performance of the Services, whether or not caused by or involving in
any way, Contractor, its employees or agents.
14. Taxes. Contractor shall pay all taxes required by law in connection
-----
with this Agreement, including, without limitation, sales, use, storage, and
similar taxes, and shall secure, at Contractor's expense, all licenses and
permits, pay all charges and fees, and give all notices necessary for the
Contractor's performance of this Agreement and Contractor's furnishing of
materials and shall provide evidence of such upon demand.
5
<PAGE>
15. Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
16. Modifications. This Agreement may be modified only in writing
-------------
executed by both parties. Pre-printed terms and conditions that may be printed
on either side of a work order or similar communication shall not supersede the
terms of this Agreement.
17. Assignment. This Agreement may not be assigned except upon the
----------
written consent of the non-assigning party, which consent may not be
unreasonably withheld; provided, however, that no consent shall be required for
the Company to assign any of its rights hereunder to any of its affiliates,
including, without limitation, AT&T and any of AT&T's affiliated entities, or to
any purchaser of substantially all of the Company's assets, if such affiliate or
purchaser has a net worth equal to or greater than the net worth of the Company
as of the date hereof and the Company remains liable. This Agreement shall be
binding upon the successors and assigns of the Parties.
18. Notices. All notices or other written communications required under
-------
this Agreement shall be given personally or by certified mail to the parties at
the following addresses:
To the Company: Triton PCS Operating Company, L.L.C.
101 Lindenwood Drive, Suite 125
Malvern, PA 19355
Attn: The President
Copy To: Jay Goldstein, Esq.
Kleinebard, Bell & Brecker
1900 Market Street, Suite 700
Philadelphia, PA 19103
To Contractor: Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Attn: Masood K. Tayebi, Ph.D., President
Copy To: William W. Eigner, Esq.
Procopio, Cory, Hargreaves & Savitch LLP
530 "B" Street, Suite 2100
San Diego, CA 92101
All notices shall be effective upon receipt if delivered personally, or
three (3) days following mailing.
19. Governing Law. This Agreement shall be governed by and construed
-------------
according to the internal laws of the State of Delaware without regard to
Delaware's choice-of-law provisions. Venue in any action brought with respect
to this Agreement by the Company shall be in state or federal courts in
Philadelphia, Pennsylvania, and each party consents to the
6
<PAGE>
jurisdiction of those courts. Venue in any action brought with respect to this
Agreement by Contractor shall be in federal or state court in Virginia, and each
party consents to the jurisdiction of those courts.
20. Attorneys' Fees. In any legal action arising from or relating to this
---------------
Agreement, the substantially prevailing party (as determined by the court) shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding (including, without limitation, expert witness fees),
in addition to any other relief to which the prevailing party may be entitled.
21. Incorporation by Reference. The additional terms and conditions
--------------------------
contained in any exhibit or attachment are hereby incorporated into this
Agreement.
22. Force Majeure. If the performance of any part of this Agreement,
-------------
except for payment obligations, by either party is delayed, rendered impossible
by reason of natural disaster, acts of God, actions or decrees of governmental
bodies or any other causes entirely beyond the control of the party whose
performance is affected (hereinafter referred to as "Force Majeure Event"), the
party who has been so affected shall immediately give written notice to the
other party of the nature of any such conditions and the extent of delay and
shall do everything possible to resume performance hereunder whenever such Force
Majeure Event is removed or ceases. Upon receipt of such notice, performance of
this Agreement, except for payment obligations, to the extent prevented by Force
Majeure Event shall immediately be suspended. If the period of nonperformance
exceeds ninety (90) days from the receipt of notice of the Force Majeure Event,
the party whose ability to perform has not been so affected may, by giving
written notice, terminate the term of this Agreement.
23. Severability. If any provision in this Agreement is determined by
------------
any court of competent jurisdiction or arbitrator to be invalid or unenforceable
for any reasons, including without limitation by reason of such provision
extending for too long a period or over too large a subject area, or by reason
of its being too extensive in any other respect, such provision to the specified
extent that it is unenforceable shall be interpreted to extend only over the
maximum period of time or subject area, and to the maximum extent in all other
respects, as to which it is valid and enforceable, thereby effectuating the
parties' intent to the greatest extent possible. The invalidity or
unenforceability of any particular provisions of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
24. Attorney Consultation. Each party has been informed of its right to
---------------------
consult with its own attorney prior to signing this Agreement and has either
done so or has considered the matter and has decided not to do so. As each
party has had opportunity to consult independent legal counsel, the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement.
25. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7
<PAGE>
26. Effective Date. Notwithstanding anything herein to the contrary, the
--------------
Company shall have the right to terminate the term of this Agreement upon
written notice to Contractor if the Company has not acquired the PCS License for
the Virginia and South Carolina trading areas from AT&T provided, however, that
-----------------
if the Company fails to obtain such PCS Licenses for the Service Area from AT&T,
then the Company shall pay to Contractor all professional fees and out-of-pocket
expenses incurred by Contractor, in accordance with the payment terms under
Section 5, prior to Contractor's receipt of notification from the Company of the
Company's failure to obtain the PCS Licenses.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TRITON PCS OPERATING COMPANY, L.L.C., WIRELESS FACILITIES, INC.,
a Delaware limited liability a New York corporation (currently
company reincorporating in Delaware)
By: Triton Management Company, Inc., By: /s/ Masood Tayebi
______________________________
its Manager Name: Masood Tayebi, Ph.D.
_______________________
Title: President
____________________
By: /s/ Clyde Smith
________________________________
Name: Clyde Smith
__________________________
Title: Executive Vice President
and CTO
_________________________
8
<PAGE>
Exhibit A
---------
SERVICES
RF Engineering Scope Of Work
A. Preliminary Design
1. Definition: Coverage will be defined by the Company, and agreed upon
by Contractor, including coverage objectives and environment (urban, suburban,
rural), in-building and in-car penetration criteria, link budget and the overall
launch area. Design criteria will also include grade of service (blocking
objective) as well as estimated subscriber usage levels.
2. Contractor Scope
Procedure: Contractor will perform propagation model optimization
drive testing before issuing the Preliminary Design. The sites will be
identified in communication with the site acquisition contractor to
allow for simultaneous model optimization and site evaluation. The
following minimum number of sites will be drive tested for each
category:
Urban [***]
Suburban [***]
Rural (w/foliage) [***]
Rural (w/o foliage) [***] (where applicable)
Contractor will identify slope and intercept and determine standard
deviation on the error between measurement and preparation model
optimization. An effort will be made to keep this error in the 8dB
range for determination of optimal slope and intercept.
Search rings will be issued based on study of existing structures,
friendly sites, co-locations and zoning criteria in order to minimize
site acquisition cost and timeline. An initial study of the existing
structures and land will be performed with site acquisition.
Deliverable: Search rings will have a cover letter listing map name,
site ID, latitude, longitude, minimum and maximum radiation center site
name, target AGL (above ground level). Search rings will be released on
copies of USGS 7 1/2 minute quad maps. Search ring information may
change according to acquisition request. Site coverage objectives will
accompany the search ring. A map will also be issued identifying the
surrounding site locations. Contractor will create an optimized model
with zero mean error, slope and intercept for the four (4) site
categories described above with associated
* Confidential Treatment Requested
A-1
<PAGE>
standard deviation on the prediction error. Contractor will document
results in the Preliminary Design report used for all subsequent
propagation analyses.
Deliverable Time Line: The search ring package will be delivered
after the Company has reviewed the design and approved the release of
search rings.
B. Site Candidate Evaluation and Approval
Contractor will evaluate the candidate sites per search ring identified by
the site acquisition contractor. The process is broken down as follows:
1. Site Survey
Definition: Visit each identified candidate for RF suitability.
Determine antenna locations. Identify coverage limitations and
comparison with any other candidates. The site survey will be
performed with site acquisition and construction personnel.
Deliverable: The survey will consist of determining the suitability
of the site, identification of desired antenna location, antenna
orientation and justification of the site.
Deliverable Time Line: The engineers will survey each site within
[***] of receiving the site candidate from site acquisition. A
survey site report (documented site survey results) will be
[documented] within [***] of the site visit.
2. Drive Testing
Definition: Upon the Company's approval of the survey, Contractor
will initiate a drive test for the site. All necessary drive testing
equipment will be provided by Contractor. Site access will be
coordinated with site acquisition.
Procedure: Based on the RF coverage objective set forth in the
Preliminary Design, Contractor may evaluate the site by drive testing
(at least [***] of primary sites will be drive tested and upon the
Company's request, up to [***] of that [***] will be drive tested
using panel antennas). The drive testing shall be limited to one
primary candidate per search ring as agreed upon by the Company and
Contractor. The Company will reserve the right to require Contractor
to conduct additional drive tests in a search ring as necessary at
additional charge according to Contractor's normal published hourly
rates then in effect. Contractor will verify and record antenna type,
gain, transmitter power output, cable losses, EIRP and a picture of
the antenna set up. The equipment used will be calibrated with a dB of
accuracy. Contractor will coordinate the required test frequency with
a contractor selected by the Company. The frequencies will be approved
by the Company.
* Confidential Treatment Requested
A-2
<PAGE>
Deliverable Time Line: Drive test will be completed within [***]
of determination of preliminary site by the Company. The drive test
report will be completed within [***]of drive test completion.
A final site evaluation (approval/rejection) will be issued based on site
visit, drive testing and site availability. If the primary site is rejected,
Contractor will select another candidate site at the Company's cost according to
Contractor's normal published hourly rates then in effect for drive testing and
evaluation. Any candidate finally approved by Contractor and the Company will be
referred to as an RF Approved Site.
3. Detailed Site Design
Definition: Antenna type, frequency planning, downtilts, interference
reduction, orientation and location will be identified on the site
sketch provided by the A&E firm approved by the Company. Necessary
prediction/measurement data analyses will be performed by Contractor
to optimally configure the antenna placement on all the RF Approved
Sites.
Procedure: All zoning construction drawings prepared by the A&E firm
will be signed off by the Contractor for the purpose of verifying that
the RF coverage objectives are met. Contractor will verify the
antenna height, placement, orientation, downlift and type. Site
configuration will be determined (omni/sector, equipment type) based
on forecasted traffic usage. Contractor will not provide FAA analyses
but will be required to provide the Company with the information
reasonably necessary for such filings for FCC and FAA filings.
Deliverable: Contractor will provide the Company with detailed site
design in accordance with procedure above subject to the Company's
approval ("Detailed Site Design").
Deliverable Time Line: Detailed Site Design will be completed within
[***] after site sketch is provided to Contractor.
4. Design Review
Definition: The objective of design review ("Design Review") is to
verify that all the desired strategic coverage areas are covered in
the Detailed Site Design and to compare the predicted and actual
design cell count. The design cell count will be based on an
optimized propagation model determined by Contractor.
Procedure: An optimized propagation model will be used to develop a
system coverage analysis. The Preliminary Design will be compared
with the Detailed Site Design to determine any changes in the design
cell count. Measurement data from the drive test will be used
primarily to determine the
* Confidential Treatment Requested
A-3
<PAGE>
design cell count, and the propagation model will be used for all the
remaining sites. Contractor will perform a capacity analysis to
ensure that all cells have adequate capacity to meet the forecasted
demand determined by the Company and Contractor after final site
approval and before frequency planning.
Deliverable: A system wide coverage plot will be produced to
determine the coverage performance and design cell count. Prediction
plots will be used in place of measured date if a Detailed Site Design
has not been approved by the Company. Contractor will generate a
report documenting the coverage performance and the cell count
comparison between the Design Review and Preliminary Design.
Deliverable Time Line: [***] design review reports will be developed
by Contractor after completion of [***] of the Detailed Site Design
has been approved by the Company for all sites (each a "Design Review
Report").
5. Traffic Engineering
Definition: Contractor will develop a capacity forecast based on the
Company provided demand parameters. Contractor will identify
forecasted channel, capacity and site configuration requirements.
Procedure: Based on the Company provided market segmentation (%
mobile, residential, business, etc.), penetration and subscriber usage
pattern (mou/sub,mE/sub) a [***] year capacity analysis forecast will
be developed to determine site configuration (omni/sector), number of
RF channels and carriers, and capacity cell addition. This analysis
will be performed on a per sector basis during the Detailed Site
Design procedure. Contractor is required to meet AT&T standards for
the percentage of blocking, which requirements will be provided by the
Company.
Deliverable: This information will be provided in each Design Review
Report identifying the following: number of channels and erlangs per
sector, cell configuration, capacity cells.
6. Build Verification
Definition: Verification of site build and antenna placement
determining whether site is built according to the Contractor's
specifications.
Procedure: Contractor will verify that sites are built with correct
antenna placement and orientation. Installation accuracy will be
reviewed in relation to construction specifications based on antenna
and cable run sweeps.
* Confidential Treatment Requested
A-4
<PAGE>
Deliverable: Build verification check sheet will be completed and
provided to the Company. The Company will authorize any modification
of the Work, which will be verified by Contractor.
Deliverable Time Line: Check sheet completed within [***] of request
for verification by the Company.
C. Optimization
System optimization support will be provided by RF using Contractor
provided optimization tools (primarily using items from Ericcson). The
optimization is divided into the following sub-tasks:
1. Site Specific Optimization
Definition: Site specific parameters will be recommended by
Contractor and Contractor will put in specific format of Ericcson for
switchloading.
Procedure: As the sites are integrated into the network, Contractor
will set the parameters, test the site for coverage and hand-offs, and
verify the link balance. Any software parameter changes will be
implemented by the Company and verified by Contractor and any RF
configuration changes will be recommended to the Company. Contractor
will test the features and originate and terminate a call per sector.
Deliverables: All information regarding a particular site will be
recorded and presented to the Company.
Deliverable Time Line: Within [***] after the site is in service
and available for testing.
2. Network Verification Drive
Definition: Network-wide drive test to establish performance
benchmarks.
Procedure: A network wide drive test will be performed by
Contractor. This will provide the data required to establish the
network coverage and quality statistics and to identify any marginal
service areas. System performance benchmarks will then be established
as a result of the tests.
Deliverables: A system wide performance report will be developed by
Contractor identifying areas of poor coverage, interference, incorrect
site parameters, and an action plan to correct these performance
deficiencies within [***] after the network-wide drive test is
completed.
* Confidential Treatment Requested
A-5
<PAGE>
3. Pre-launch Optimization Process
Pre-Launch optimization will be carried out by Contractor to verify the
correct operation of the network, identifying the coverage area of each
site, validating parameters and neighbors, and documenting performance
benchmarks that meet the specified grade of service. It provides vital
data for the post-launch optimization engineers who may implement RF
configuration changes to improve the overall coverage of the network, and
who change software parameters to maintain the integrity of the system as
the traffic loan increases. The documentation produced in the process
shall accurately reflect the network performance statistics. The
percentage of dropped calls will meet AT&T standards.
4. FAA
The Contractor will provide all reasonably necessary information to the
Company approved airspace analysis contractor. Contractor will not be
responsible for filing FAA forms.
5. FCC
RF will furnish to the Company all reasonably necessary information
required for PCIA and FCC filings as requested in writing by the Company.
Contractor will not be responsible for filing FCC forms.
6. Zoning Support
Contractor will provide technical support, as reasonably necessary to
support land use planning, jurisdictional hearings and zoning functions.
This may consist of providing plots from drive testing, and the propagation
model or written justifications defending an application for a variance.
Contractor agrees to provide expert testimony as required for zoning
hearings at its published hourly rates.
A-6
<PAGE>
Exhibit B
---------
PRICES
B.1 Price Per Site. This Agreement calls for the Company to pay for each
--------------
cell site (each, a "Site") on a fixed price basis of [***] Dollars ($[***]) per
Site. If Contractor does not license hardware or software to the Company upon
completion of a Site, the price per Site shall be [***] Dollars ($[***]).
Contractor is hiring and relocating engineers and making commitment to them and
to others based on these representations.
B.2 Schedule Of Payments. Subject to Section 5 of this Agreement, the
--------------------
Company shall pay the Prices to Contractor for each Site in [***] equal
installments of [***] Dollars ($[***]) each due and payable upon the following
events:
B.2.1 [***]
B.2.2 [***]
B.2.3 [***]
B.2.4 [***]
* Confidential Treatment Requested
B-1
<PAGE>
B.3 Incomplete Sites. If work is halted on a particular Site due to
----------------
change of plan or another reason not caused by Contractor, the Company shall pay
Contractor on a pro-rata basis under which Contractor shall be paid in full for
completed benchmarks and in part for incomplete benchmarks.
B.4 Additional Services. If the Company requests Contractor to provide
-------------------
additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Contractor shall pay for those services
consistent with Section 5 of this Agreement, at Contractor's standard hourly
billing rates then in effect. For 1997, Contractor's standard hourly rates are
as follows: [***] Dollars ($ [***]) per hour for Associate Engineers, [***]
Dollars ($ [***]) per hour for Design Engineers, [***] Dollars ($ [***]) per
hour for Senior Engineers, and [***] Dollars ($ [***]) per hour for Project
Managers.
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
B.5.1 [***]
B.5.2 [***]
B.5.3 [***]
B.5.4 [***]
B.5.5 [***]
B.5.6 [***]
B.5.7 [***]
B.5.8 [***]
B.5.9 [***]
B.5.10 [***]
B.5.11 [***]
B.5.12 [***]
B.5.13; and [***]
B.5.14 [***]
* Confidential Treatment Requested
B-2
<PAGE>
All other expenses not explicitly listed in Section B.5 shall be borne by
the Company, including but not limited to [***].
B-3
<PAGE>
TRITON PCS OPERATING COMPANY LLC
375 Technology Drive
Malvern, PA 19355
October 19, 1998
Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998 (the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Agreement, the Agreement is amended by replacing Exhibit B attached thereto with
Exhibit 1 attached hereto. The Prices set forth on Exhibit 1 shall apply only
to search rings issued before the date of this Letter Agreement. The Prices set
forth on Exhibit B shall apply to search rings issued before the date of this
Letter Amendment.
Except for the foregoing change, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.,
By: Triton Management Company, Inc.
its Manager
By: /s/ Clyde Smith
------------------------------
Name: Clyde Smith
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By: /s/ Masood K. Tayebi
-----------------------------
Name: Masood K. Tayebi
Title: President
<PAGE>
Exhibit 1
---------
PRICES
B.1 Price Per Site. This Agreement calls for the Company to pay for each
--------------
cell site (each, a "Site") on a fixed price basis of [***] Dollars ($[***]) per
Site. If Contractor does not license hardware or software to the Company upon
completion of a Site, the price per Site shall be [***] Dollars ($[***]).
Contractor is hiring and relocating engineers and making commitment to them and
to others based on these representations.
B.2 Schedule Of Payments. Subject to Section 5 of this Agreement, the
--------------------
Company shall pay the Prices to Contractor for each Site in [***]
installments in the following amounts, due and payable upon the following
events (each, a "Benchmark"):
B.2.1 [***]
B.2.2 [***]
B.2.3 [***]
B.2.4 [***]
* Confidential Treatment Requested
1-1
<PAGE>
B.3 Incomplete Sites. If work is halted on a particular Site due to
----------------
change of plan or another reason not caused by Contractor, the Company shall pay
Contractor on a pro-rata basis under which Contractor shall be paid in full for
completed benchmarks and in part for incomplete benchmarks.
B.4 Additional Services. If the Company requests Contractor to provide
-------------------
additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Company shall pay for those services consistent
with Section 5 of this Agreement, at Contractor's standard hourly billing rates
then in effect. For 1998-1999, Contractor's standard hourly rates are as
follows: [***] Dollars ($ [***]) per hour for Associate Engineers, [***] Dollars
($ [***]) per hour for Design Engineers, [***] Dollars ($ [***]) per hour for
Senior Engineers, and [***] Dollars ($ [***]) per hour for Project Managers.
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
B.5.1 [***]
B.5.2 [***]
B.5.3 [***]
B.5.4 [***]
B.5.5 [***]
B.5.6 [***]
B.5.7 [***]
B.5.8 [***]
B.5.9 [***]
B.5.10 [***]
B.5.11 [***]
B.5.12 [***]
B.5.13; and [***]
B.5.14 [***]
* Confidential Treatment Requested
1-2
<PAGE>
TRITON PCS OPERATING COMPANY LLC
375 Technology Drive
Malvern, PA 19355
November 2, 1998
Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 (as so amended, the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding thereto to the
following Section D:
D. Maintenance of RF Network Performance ("Maintenance Services")
After completion of the Build Verification and Optimization
Milestone, the Contractor will provide the services set forth below
with respect to each launched site. In addition, so long as
Contractor performs Maintenance Services under this Agreement,
Contractor will maintain where currently located the seven (7) Planet
Stations that are currently deployed in Company regions.
1. Dropped call rate analysis per sector. Dropped calls will be
categorized due to signal strength, bad quality, timing
advancement, etc.
2. Handover attempts
3. Handover failure and success (Ratios, etc.)
4. Call attempt (Completion and Failure)
5. Call Setup completion rate
6. Traffic Channel utilization rate
7. Busy hour traffic analysis per sector
8. Network footprint drive test
9. Network quality drive test
10. Frequency planning
11. Network parameter setting
12. Antenna orientation and down-tilt setting
13. Network trouble shooting
14. Competitor footprint test (Twice each year per region)
<PAGE>
15. Current 10 worst performance lists of sites per BTA and brief
description as to the possible cause of the poor performance
and recommended solution
16. Handle all RF related trouble tickets
17. Work with Triton Corporation to evaluate new phones as needed
18. Update frequency plan, neighbor list and all RF parameters on
an ongoing basis
19. Daily statistical report to Triton Management, including
historical data and
<PAGE>
trends, weekly and monthly averages
20. Investigate and resolve all RF related problems
2. Exhibit B to the Agreement is amended by adding thereto to the
following Section B.6:
B.6. Maintenance of RF Network Performance
B.6.1 Contractor will be paid a fee of [***] per sit, per month,
for the performance of the Maintenance Services set forth in Section D
of Exhibit A.
B.6.2 The fee for the Maintenance Services includes compensation
for the following expenses:
[***]
Except for the foregoing changes, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.
By: Triton Management Company, Inc.
its Manager
By: /s/ Clyde Smith
----------------------------
Name: Clyde Smith
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By:/s/ Masood K. Tayebi
--------------------------
Name: Masood K. Tayebi
Title: President
* Confidential Treatment Requested
<PAGE>
[WFI Letterhead]
April 20, 1999
Mr. Shekhar Deshpande
Vice President
Triton PCS Operating Company, L.L.C.
375 Technology Drive
Malvern, PA 19355
Re: Letter Amendment Number 3 to Master Services Agreement dated 1/19/98
Dear Mr. Deshpande:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 and November 2, 1998 (as
so amended, the "Agreement") between Triton PCS Operating Company, L.L.C.
("Triton") and Wireless Facilities, Inc. ("WFI"). Capitalized terms not
otherwise defined in this letter amendment have the same meanings as specified
in the Agreement.
Triton and WFI hereby agree that effective as of the date of this letter
amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding the following Section
E:
E. Fixed Network and Customer Care Engineering Support Services
a. Services: WFI will perform fixed network and customer
care engineering services as directed by
Triton including working with the customer
care center to define areas for improvement
in engineering and operations and working to
resolve such issues.
b. Service Fee: WFI will provide engineers to Triton to
perform fixed network design services at the
hourly rates for additional services as set
forth in Exhibit 1 of the amended Agreement.
c. Expenses: Travel and other expenses shall be passed
through to Triton with an administrative
markup of [***]%.
d. Invoicing: WFI will invoice Triton on a monthly basis
for hours worked and expenses incurred
during the previous month.
*Confidential Treatment Requested
<PAGE>
e. Staff Assignment: WFI, will identify, based on Triton's
requirements, appropriate staff and
corresponding classifications on a per
project basis. WFI will present this
information to Triton for review and
approval.
Except for the foregoing change, all other terms and conditions of the Agreement
shall remain the same and continue in full force and effect, and the Agreement,
as amended hereby, shall constitute the legally valid and binding obligation (to
the extent specifically provided therein and herein) of the parties hereto
enforceable in accordance with its terms. If Triton agrees to the terms and
conditions hereof, please evidence such agreement by having an authorized
signatory execute this letter where indicated below and return a copy to us at
the address set forth above.
Sincerely,
WIRELESS FACILITIES, INC.
By: /s/ Dee Aliphanah
-----------------------------
Name: Dee Aliphanah
Title: Vice President
AGREED TO AND ACCEPTED
AS OF THE DATE FIRST ABOVE
WRITTEN BY:
TRITON PCS OPERATING COMPANY L.L.C.
By: /s/ Shekhar Deshpande
-----------------------------
Name: Shekhar Deshpande
Title: Vice President
<PAGE>
Exhibit 10.26
MICROWAVE RELOCATION SERVICES AGREEMENT
THIS MICROWAVE RELOCATION SERVICES AGREEMENT (the "Agreement") is entered
into as of February 11, 1998 (the "Effective Date") by and between Triton PCS
Operating Company, L.L.C., a Delaware limited liability company ("Triton") and
Entel Technologies, Inc., a Delaware corporation ("Entel") (Triton and Entel are
each hereinafter referred to individually as a "Party" or collectively as
"Parties").
1. Description of Services. In accordance with and subject to the terms and
-----------------------
conditions of this Agreement, Entel hereby agrees to provide Triton with
the microwave clearing services (the "Services") described in Exhibit I
hereto (the "Scope of Services") as assigned pursuant to a fully executed
work order (`W.O.) similar in form to the W.O. set forth in Exhibit III
hereto.
2. Term of Agreement. The term of this Agreement shall be fifteen (15)
------------------
months from the Effective Date unless otherwise terminated in accordance
with this Agreement. The term of this Agreement will automatically renew
for an additional term of one (1) year unless either Party communicates, in
writing, thirty (30) days prior to expiration of the initial term, to the
other Party, its intent not to renew the Agreement.
3. Non Exclusivity. Each Party shall be free to enter into any other contracts
---------------
or agreements, similar or dissimilar, with any other person or entity.
4. Assignment of Work. Triton shall assign work to Entel by issuing a W.O.
------------------
similar to the form set forth in Exhibit III hereto. Each W.O. shall
describe the Services to be performed. W.O. number 1 and number 2 have been
fully executed by the Parties and copies are attached hereto as Attachment
II and III.
5. Acceptance of Work. Entel shall manifest its acceptance of assigned work by
------------------
executing the W.O. within [***] of receipt of the W.O. from Triton.
6. Compensation. The pricing for the Services, as previously agreed to by both
------------
Parties, is set forth in Exhibit II hereto.
7. Invoices and Payments. Entel shall invoice Triton according to the
---------------------
timeframes set forth in Exhibit II. Invoices shall be due and payable by
Triton within thirty (30) days of the date of receipt by Triton. Triton
shall review the invoices and notify Entel in writing within thirty (30)
days of receipt of the invoice of any objection or question Triton may have
in connection with the invoice. If any items are disputed, only the
disputed items may be withheld from payment. The remaining undisputed
portion of the invoice shall be paid in accordance with the terms of this
Agreement.
8. Taxes. All taxes and similar assessments, levies and government imposed
-----
obligations with respect to income derived from Entel's performance of
Services hereunder shall be the obligation of and be paid by Entel. Triton
shall pay any other applicable taxes.
9. Breach and Termination.
----------------------
A. Breach. For purposes of this Agreement, Breach shall mean the
------
following:
1. Breach by Triton. Triton's failure to timely pay service fees or
----------------
reimbursable expenses in accordance with the procedures set forth
in this Agreement.
2. Breach by Entel. Entel's failure to provide timely or quality
---------------
Services as required by the terms of this Agreement. The quality
of Entel's services shall be evaluated in good faith based on the
industry standard of quality for consulting services of the same
or similar nature.
* Confidential treatment requested.
-1-
<PAGE>
B. Termination for Breach, Cure Period. The non-breaching Party shall
-----------------------------------
provide the breaching Party fifteen (15) days, after receipt of a
written termination notice setting forth the nature of the Breach, to
cure such breach provided however that Triton, subsequent to providing
[***] cure notices to Entel within a [***] period, which period shall
commence on the Effective Date hereof, shall be entitled to terminate
the Agreement without providing notice to Entel. When written notice
of a breach is required hereunder, the applicable remedy for such
breach shall be unavailable until the passage of such cure period.
C. Termination in Event of Default. Either Party may terminate this
-------------------------------
Agreement upon written notice to the other Party under any of the
following circumstances, each of which shall constitute an Event of
Default: (i) the other Party makes an assignment for the benefit of
creditors (other than solely as an assignment of moneys due); (ii) the
other Party becomes unable to pay its debts as they become due, unless
assurance satisfactory to the terminating Party is provided within
thirty (30) days of receipt of its notice of termination hereunder; or
(iii) the other Party becomes the subject of a proceeding, whether
voluntary or involuntary, under the bankruptcy or insolvency laws of
the United States or any other jurisdiction, unless such proceeding is
dismissed or withdrawn within forty-five (45) days of the non-
defaulting Party's receipt of the defaulting Party's notice of
termination hereunder.
D. Procedure Upon Expiration or Termination. Upon the expiration or
----------------------------------------
termination of this Agreement, Entel shall promptly return to Triton,
or destroy, as Triton may direct, all of Triton's property in Entel's
possession. Entel shall be entitled to payment for Services rendered
and for reimbursable expenses related thereto incurred prior to the
effective date of termination, as Entel shall set forth in its final
invoice to Triton. Triton shall pay Entel the pro rata portion of the
service fee that is represented by the portion of Services rendered
prior to the effective date of the termination. Each Party shall
provide to the other such reasonable assistance as may be necessary
for the orderly continuation of the other Party's business.
10. Indemnification
---------------
A. Except as a result of Entel's gross negligence or willful misconduct,
Triton agrees to defend and indemnify Entel for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Entel as the result
of any act, error, omission, non-performance by negligence, or
wrongful act of Triton arising directly out of the performance of this
Agreement.
B. Except as a result of Triton's gross negligence or willful misconduct,
Entel agrees to defend and indemnify Triton for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Triton as the
result of any act, error, omission, non-performance by negligence, or
wrongful act of Entel arising directly out of the performance of this
Agreement.
11. Insurance. Entel shall maintain: Commercial General Liability coverage in
---------
an amount of not less than $1,000,000 per occurrence for bodily injury or
death, personal injury, and property damage liability; and for all motor
vehicles used by employees during the course of this Agreement, liability
and property damage insurance in the amount of $1,000,000. Entel agrees to
name Triton as additional insured under the above coverages. Entel will
secure and maintain all insurance required by law, for its employees,
during the term of this Agreement. All subcontractors or other agents hired
by Entel under the terms of this Agreement must adhere to the conditions
contained in this paragraph, which shall be paid by subcontractor, and
Entel shall provide Triton with a copy of said insurance. Entel shall
provide Triton with evidence of such insurance prior to commencement of
work under this contract and as otherwise reasonably requested by Triton.
-2-
* CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
12. Confidentially. In order to permit Entel to perform its obligations
--------------
hereunder, Triton may from time to time disclose to Entel confidential or
proprietary information of Triton ("Confidential Information"). Entel shall
use all Confidential Information solely for the purpose of performing its
obligations to Triton under this Agreement, and shall keep confidential and
not disclose to any other person, other than employees or agents of Entel
who agree to be bound by an equivalent undertaking, any Confidential
Information. The foregoing restrictions shall not apply to any Confidential
Information:
i. which is made public by Triton or which otherwise is or
hereafter becomes part of the public domain through no wrongful
act, fault, or negligence on the part of Entel;
ii. which Entel can reasonably demonstrate is already in Entel's
possession and not subject to an existing agreement of
confidentiality;
iii. which is received from a third party without restriction and
without breach of an agreement with Triton;
iv. which is independently developed by Entel as evidenced by its
records; or
v. which Entel is required to disclose pursuant to a valid order
of a court or other governmental body or any political
subdivision hereof; provided, however, that, to the extent that
it may lawfully do so, Entel shall first have given notice to
Triton and given Triton a reasonable opportunity to interpose
an objection or obtain a protective order requiring that the
Confidential Information so disclosed be used only for the
purposes for which the order was issued.
13. Independent Contractor. Entel is and shall act as an independent contractor
----------------------
in the performance of its obligations under this Agreement. Entel shall
exercise full control of and supervision over its employees. Entel's
personnel performing Services are agents, employees or subcontractors of
Entel and are not employees or agents of Triton. Entel will be solely
liable for all matters relating to compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and
local laws, rules and regulations governing such matters.
14. Prohibition of Solicitation. During the term of this Agreement, neither
---------------------------
party shall solicit nor accept for employment any employees of the
other party without the express written consent of the other party.
15. Force Majeure. Neither Party shall be liable for any delay or failure in
-------------
performing its obligations hereunder that is due to circumstances beyond
such Party's reasonable control, including, but not limited to, acts of
God, civil unrest, riots, war, fire, floods, explosions and strikes or
other concerted acts of labor, provided that such circumstances were not
reasonably foreseeable by such Party and, by the exercise of commercial due
diligence, could not have been prevented or overcome by such Party. Upon
the occurrence of a force majeure condition, the Party whose performance is
affected shall give written notice to the other Party describing the
affected performance. The parties shall promptly confer, in good faith, to
agree upon equitable, reasonable action to minimize the impact of the
condition on both parties. The parties agree that the Party whose
performance is affected shall use commercially reasonable efforts to
minimize the delay caused by the force majeure condition and recommence the
affected performance. In the event that the delay caused by the force
majeure event lasts for a period of more than thirty (30) days, the parties
shall negotiate an equitable modification to this Agreement with respect to
the affected performance. If the parties are unable to agree upon an
equitable modification within fifteen (15) days after such thirty (30) day
period has expired, then either Party shall be entitled to serve thirty
(30) days notice of termination on the other Party with respect to only the
affected performance. If the force majeure event for such affected
performance continues upon the expiration of such thirty (30) day notice
period the portion of this Agreement relating to the affected performance
shall automatically terminate. The remaining portion of this Agreement that
does not involve the affected performance shall continue in full force and
effect.
16. Limitation of Liability. Entel's liability with respect to services
-----------------------
provided hereunder shall not exceed the amount paid to Entel under this
Agreement.
-3-
<PAGE>
17. Waivers and Amendments. Waiver by either Party of any default hereunder by
----------------------
the other Party shall not be deemed a waiver of any other default. No
provision of this Agreement shall be deemed waived, amended or modified by
either Party, unless such waiver, amendment or modification is in writing
and signed by the authorized representative of the Party against whom such
waiver, amendment or modification is to be enforced.
18. Governing Law; Consent to Jurisdiction and Venue. This Agreement shall be
------------------------------------------------
construed in accordance with the laws of the Commonwealth of Pennsylvania,
excluding the conflict of laws provisions thereof.
19. Assignment to Third Parties. Triton may freely assign its rights and
---------------------------
obligations hereunder. Except as specifically permitted herein, Entel may
not assign or transfer any right, interest, or obligation hereunder to any
third party without the express written consent of Triton, such consent not
to be unreasonably withheld or delayed; provided, however, Entel may freely
-------- -------
assign this Agreement to any affiliate of Entel upon written notice to
Triton. An affiliate is defined herein as a corporation or other business
organization that owns, controls, is controlled by, or is under common
control with, a party. Any purported assignment in violation of this
Section shall be void.
20. Severability. If any provision or any part of a provision of this Agreement
------------
shall be held invalid or unenforceable, then the remaining portions of that
provision and the remainder of the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or portion
thereof, and the rights and obligations of each Party shall be construed
and enforced accordingly.
21. Survival. The terms, conditions and warranties contained in this Agreement
--------
that by their sense and context are intended to survive the termination or
expiration of this Agreement shall so survive.
22. Entire Agreement; Modifications. This Agreement, including the Exhibits
-------------------------------
attached hereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior agreements, representations, statements,
negotiations, understandings and undertakings are superseded by this
Agreement. This Agreement may be modified only in a written document signed
by both parties.
23. Headings; Construction. The headings of the Paragraphs of this Agreement
----------------------
are inserted for convenience only and are not intended to affect its
meaning or interpretation. Throughout this Agreement, the singular shall
apply to the plural and the plural to the singular, unless the context
clearly indicates otherwise.
24. Notices. Except as otherwise provided herein, all notices or other
-------
communications to be given or that may be given by either Party to the
other shall be deemed to have been duly given when made in writing and
delivered in person or when deposited in the United States mail, postage
prepaid, certified, return receipt requested or sent via facsimile with
confirmation of receipt, and addressed as follows:
If to Entel:
-----------
Mr. Dee Alipanah, Vice President
Entel Technologies, Inc.
1110 N. Glebe Road, Suite 850
Arlington, VA 22201
Fax: (703) 812-8700
-4-
<PAGE>
If to Triton:
------------
Mr. Abbas Borghei
Triton PCS Operating Company, L.L.C.
101 Lindenwood Drive, Suite 125
Malvern, Pennsylvania 19355
Fax: (610) 993-2683
The notice addresses may be changed by written notice given by one Party to
the other.
25. Exhibits. The following Exhibits and Attachment are attached hereto and
--------
incorporated herein:
Exhibit I: Scope of Services for Spectrum Sharing and Microwave
Relocation Services
Exhibit II: Pricing and Pass Through Expenses for Spectrum Sharing
Engineering and Microwave Relocation Services
Exhibit III: Sample Work Order
Attachment I List of Valid Paths Identified in Fast Start Report
Attachment II Work Order Number 1
Attachment III Work Order Number 2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
TRITON PCS OPERATING ENTEL TECHNOLOGIES, INC.
COMPANY, L.L.C.
By: TRITON MANAGEMENT
COMPANY, INC., ITS MANAGER
/s/ Clyde Smith /s/ John T. Vento
- ------------------------- ---------------------------
Clyde Smith John T. Vento
- ------------------------- ---------------------------
Print Name Print Name
Executive Vice President President
- ------------------------- ---------------------------
Title Title
-5-
<PAGE>
Exhibit I
to
Microwave Relocation Services Agreement
Between Triton and Entel
Scope of Services
-----------------
for
---
Spectrum Sharing and Microwave Relocation Services
--------------------------------------------------
Entel, utilizing the Comsearch IQ Clear spectrum sharing tool, procured and
provided by Entel, will supply to Triton all labor, services, resources, and
consultation necessary to perform the spectrum sharing study and analysis, drive
test frequency selection, and prior coordination notices described below
("Spectrum Sharing Services"). Entel will also provide Triton with the Microwave
Relocation Services described below.
1. Spectrum Sharing Study and Analysis
Entel will perform spectrum-sharing studies, as required by Triton, for the
selected frequency, in each assigned BTA. The studies will initially be
based on the generic traffic cell based design, which will be modified
subsequently to include RF design information provided by Triton. Entel
will identify all paths that could be affected by Triton's proposed PCS
systems, based on FCC guidelines on interference avoidance. Entel will
perform multiple interference studies for each assigned frequency and BTA,
as required, over the course of the design and buildout phases.
2. Drive Test Frequency Selection
On a continuous basis as frequencies are assigned, Entel will complete the
spectrum sharing study and analysis and provide Triton with the required
drive test frequencies for the assigned BTS locations (if a non-interfering
frequency is available).
3. Prior Coordination Notices
Entel will prepare Prior Coordination Notices (PCN(s)), mail PCNs to
incumbents and clearinghouses, and coordinate responses and objections to
PCNs, as required. Typically one PCN mailing will be required for each BTA,
unless considerable RF engineering design changes occur later in the pre-
launch phase. As a result of RF design changes, additional PCN(s) will be
performed as required.
4. Microwave Relocation Services
Phased Delivery of Services
---------------------------
Entel shall provide Triton with microwave relocation services (the
"Services") as described below. The Services shall be delivered to Triton
in three phases:
Phase I: Market Relocation Analysis
--------
Phase II: Negotiations and Final Contract Execution
---------
Phase III: Relocation Program Management
----------
Phase I - Market Relocation Analysis
Entel will utilize the results of the spectrum sharing study and analysis
and will perform the following steps as required to complete assessment of
interfering paths/incumbents as identified in the spectrum sharing study
and analysis.
A. Service Description
-------------------
1. Review and Catalog Path Data. Review information from the
----------------------------
spectrum sharing study and analysis on a per market and per
incumbent basis for both co-channel and adjacent channel paths.
Information such as number of links, equipment and modulation
type, capacity, site names and locations for each path will be
logged for use during negotiations and relocation
<PAGE>
program management.
3. Path Prioritization. Entel will develop technical parameters for
-------------------
the interfering co and adjacent channel paths to establish
negotiation and relocation strategies and path priorities.
4. Review of Incumbent Data. Entel will review incumbent system data
------------------------
on a per link basis and compare the information against FCC
database information to determine whether the incumbent is
operating on a primary status with a current license.
5. Path Status Verification and Initial Incumbent Assessment. Entel
---------------------------------------------------------
will contact each incumbent to confirm database information,
verify path status, i.e. active, negotiated, or decommissioned.
If the incumbent has not entered into an agreement with another
PCS licensee, then Entel will assess the incumbent's willingness
to negotiate, identify strategic information, and discuss
preliminary relocation options.
6. Assessment of Previously Negotiated Paths. Entel will attempt to
-----------------------------------------
obtain the terms and status of each relocation agreement entered
into between an incumbent and other PCS licensee(s). Entel will
attempt to obtain a copy of the agreement, provided that it is
not protected by a non-disclosure agreement. Entel will determine
whether the dates agreed upon in the relocation agreement meet
Triton's requirements.
7. Estimate Comparable Relocation Costs. Estimate relocation costs
------------------------------------
on a per incumbent and per market basis for paths that are
determined to be active or co-channel paths that have been
negotiated and/or relocated. Information such as system type and
architecture, number of links required to be relocated, tower
heights and typical system usage will be used to develop the cost
estimates.
8. Route Mapping. Develop route maps on a per incumbent and per
-------------
market basis delineating co-channel and adjacent channel active
paths.
B. Deliverables
------------
Entel will provide to Triton a written report containing the following
information:
1. Preliminary Analysis of Assigned BTAs:
-------------------------------------
a) Copies of FCC licenses for each identified path;
b) Comparable cost documentation for each active path or for
each co-channel paths which have been negotiated and/or
relocated;
c) Detailed budgetary cost analysis on a per BTA and frequency
basis;
d) Route maps; and
e) Frequency relocation contract templates.
-II-
<PAGE>
Phase II - Incumbent Negotiations and Final Contract Execution
--------------------------------------------------------------
A. Service Description
-------------------
1. Introductory Mailing. Entel will identify the proper technical
--------------------
and negotiation contact for each incumbent and send an
introductory mailing packet containing general information on
microwave relocation and specific information about Triton and
its proposed course of action.
2. Negotiation Parameters. Entel will work with Triton to develop
----------------------
negotiation parameters. These parameters should be established
prior to the commencement of negotiations so that settlements may
be negotiated expeditiously.
3. Development of Negotiation Strategies. Entel will work with
-------------------------------------
Triton to develop optimal negotiation strategies for each
incumbent and market. These strategies will be based upon the
size and location of each incumbent's network, considering
whether the incumbent is present in multiple Triton markets,
Triton's priorities and its willingness to provide various
relocation alternatives.
4. Initiate Negotiations. Entel will negotiate with incumbent to
---------------------
reach an agreement that conforms to Triton's relocation schedule
and cost parameters.
5. Additional Negotiation and Finalization of Agreement for Amended
----------------------------------------------------------------
Relocation Dates. If a path has been negotiated by another PCS
----------------
licensee, but the relocation date(s) are unacceptable to Triton,
then Entel will initiate negotiations with the incumbent, other
PCS licensee(s) or both to alter the unacceptable relocation
dates and bring them into conformity with Triton's relocation
priorities.
6. Negotiation Strategy. Entel will re-assess negotiation parameters
--------------------
and strategies as required based on discussions with incumbents,
additional information obtained from incumbent meeting, and any
modifications to Triton's deployment schedule.
7. Contract Templates. Triton's inside counsel shall review and
------------------
modify, as required, the contract templates that Entel provided
to Triton. These pre-approved contract templates are essential
for enabling Entel to conclude negotiations in an efficient and
expedient manner.
8. Finalize Relocation Terms. Entel will provide the proposed
-------------------------
business terms to Triton for approval.
9. Finalize Relocation Agreement. Once Triton has approved the
-----------------------------
business terms, Entel shall work with Triton's counsel to
facilitate the negotiation and execution of the final relocation
agreement between Triton and the incumbent.
B. Deliverables
------------
Entel will provide Triton with the following deliverables:
1. Signed offer letter;
2. Executed frequency relocation agreement between incumbent and
Triton;
3. Copies of any correspondence that Triton may request; and
-III-
<PAGE>
4. Periodic reports detailing the status of each negotiation and
summarizing the information obtained on each incumbent.
-IV-
<PAGE>
Phase III - Relocation Program Management
-----------------------------------------
A. Service Description
-------------------
1. Frequency Coordination. Entel will order frequency coordination.
----------------------
If required, Entel will prepare the required FCC license
applications for incumbent's signature and submit such
applications to the FCC.
2. Detailed Relocation System Design. Entel will order engineering
---------------------------------
services required to design and engineer the microwave path
including path and site surveys and network system design.
3. Third Party Proposals. Entel will obtain and review third party
---------------------
proposals for equipment and/or services, including but not
limited to construction, installation, testing and training and
other services required to implement the turnkey replacement and
make a recommendation to Triton as to which proposal to accept.
4. Tower Stress and Foundation Analysis. Entel will order any
------------------------------------
required tower and foundation analyses. Entel will coordinate and
program manages the entire process.
5. Tower Options Analysis. Entel will review results of the tower
----------------------
and/or foundation analysis and based on the recommendation made
by the Supplier, determine most cost-effective option such as
structural strengthening, replacement, or alternate courses of
action.
6. Leased Facilities. In the event that an incumbent transfers its
-----------------
operations to leased facilities and requests Triton's assistance
in the transfer, Entel will coordinate the transfer of the
facilities to alternate leased by the scheduled decommissioning
date.
7. Relocation Plan. Entel will develop a relocation plan that sets
---------------
forth detailed relocation requirements including equipment
procurement requirements, time line requirements, system
performance requirements and detailed installation requirements.
These detailed installation requirements will include testing,
acceptance, and commissioning requirements.
8. Installation Feasibility Analysis. Entel, in coordination with a
---------------------------------
third party equipment supplier and installer, will conduct an
installation feasibility analysis in order to identify detailed
installation requirements and to ensure that decommissioning
objectives are met.
9. Installation Oversight. Entel will supervise the installation of
----------------------
the replacement system to ensure that the old system is
decommissioned on schedule and that the incumbent is satisfied
with the installation of the replacement system.
10. Tower Modification Oversight. Entel will monitor third party
----------------------------
Suppliers' performance to ensure timely completion of their
obligations.
11. Documentation Review. Entel will review "as-built" documentation
--------------------
prepared by third party Suppliers, verify completion of third
party supplier contractual requirements, and recommend to Triton
to proceed with final payment based on acceptance criteria.
12. Incumbent Acceptance. Entel will obtain final incumbent
--------------------
acceptance of equipment and facility installation. Entel will
ensure incumbent's satisfaction that the contractual obligations
by Triton and its subcontractors (if applicable) have been met.
-V-
<PAGE>
13. Final Cost Documentation. Entel will provide Triton with a final
------------------------
accounting of the costs incurred to perform the turnkey
relocation project.
14. Monitoring of Incumbent's Performance Obligations. For paths that
-------------------------------------------------
resulted in a cash transaction between Incumbent and Triton,
Entel will monitor incumbent to ensure compliance with
contractual obligations and report such status to Triton.
15. Decommissioning Notification. Entel will notify Triton of
----------------------------
completion of the relocation and provide Triton with copies of
FCC Forms 415 and/or FCC licenses indicating that the 2 GHz
frequencies have been removed and decommissioned.
16. Cost Sharing Support. Entel will provide support to Triton in
--------------------
connection with the cost sharing process. If requested by Triton,
Entel will analyze cost sharing claims presented to Triton by PCS
relocators to determine whether the claims are reasonable based
on the specifics of the underlying system.
B. Deliverables
------------
Entel will provide Triton the following deliverables on a per
incumbent basis:
1. Periodic reports containing the status on incumbent compliance
with the frequency relocation agreement including status on path
decommissioning.
2. Where applicable, Entel shall provide to Triton the following
information:
a) Test reports;
b) Procurement documentation
c) Project management reports;
d) Equipment test certification;
e) Photos, drawings and other information obtained from
site visits
f) Cut-over documentation; and
g) Equipment removal certification.
5. Entel shall provide Triton with copies of FCC Forms 415 or other
appropriate documentation for decommissioned paths.
-VI-
<PAGE>
Exhibit II
to
Microwave Relocation Services Agreement
Between Triton and Entel
Pricing and Pass Through Expenses for Spectrum Sharing Engineering
------------------------------------------------------------------
and
---
Microwave Relocation Services
-----------------------------
1) Spectrum Sharing Engineering Services Pricing
a) Per Task Pricing
i) Spectrum Sharing Study and Analysis - Billed upon completion of
-----------------------------------
spectrum sharing study and analysis for each BTA.
(1) $ [***] per BTA
ii) Drive Test Frequency Selection - Billed on a monthly basis.
------------------------------
(1) $ [***] per frequency per cell site
iii) Prior Coordination Notices
--------------------------
(1) $ [***] per mailing per BTA - Billed upon successful
expiration of PCNs per BTA.
2) Microwave Relocation Services Pricing
a) Per Task Pricing
i) Phase I - Market Relocation Analysis - Billed upon completion and
------------------------------------
submission of a report for the assigned BTAs.
(1) $ [***] per path for any path not listed in Attachment I
(2) $ [***] per path for paths listed in Attachment I
ii) Phase II - Incumbent Negotiations and Final Contract Execution -
--------------------------------------------------------------
Billed upon completion of final contract execution by incumbent
and Triton.
(1) First path per incumbent: $ [***]
(2) Each additional path per incumbent: $ [***]
iii) Phase III - Relocation Program Management - Billed upon
-----------------------------------------
incumbent's execution of the Certificate of Acceptance as set
forth in the Frequency Relocation Agreement.
(1) Turnkey Transaction
(a) First path per incumbent: $ [***]
(b) Each additional path per incumbent: $ [***]
(2) Cash Transaction
(a) First path per incumbent: $ [***]
(b) Each additional path per incumbent: $ [***]
-VII-
* Confidential treatment requested.
<PAGE>
3) Expense Reimbursement
The pricing set forth above includes Entel's Services only and does not
include the pass through expenses set forth below which are required to
complete the microwave replacement. Triton shall reimburse Entel for the
actual cost of the following types of expenses paid for by Entel:
<TABLE>
<CAPTION>
Activity Typical Cost
-------- ------------
<S> <C>
Path Survey $ [***] per path
Path Engineering $ [***] per path
Microwave Frequency Coordination and FCC Licensing $ [***] per path
Tower Stress Analysis $ [***] per path
Site Construction, Equipment Purchase, Installation and $ [***] per analog
Training Replacement
$ [***] per digital
Replacement (Not including new
tower cost)
Travel Expenses $ [***] average per trip
</TABLE>
Entel shall pay for expense items that are less than $ [***]. Entel shall pass
on the costs for such items to Triton. Entel shall invoice Triton on a monthly
basis for such pass through expenses. For reimbursable expense items that are
equal to or greater than $ [***], Entel shall prepare and submit to Triton a
purchase requisition and Triton shall pay the third party supplier directly. In
the event that the cost for an expense item exceeds the estimate set forth
above, Entel shall obtain Triton's approval for such expense prior to incurring
any cost associated with such expense.
-VIII-
- -----------
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
EXHIBIT III
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS Operating Company, L.L.C.
and
Entel Technologies, Inc.
SAMPLE WORK ORDER
-----------------
WORK ORDER NO.:
Triton PCS Operating Company, L.L.C. ("Triton") hereby requests that Entel
Technologies, Inc. ("Entel") provide the microwave relocation services (the
"Services") set forth below, pursuant to the Microwave Relocation Services
Agreement (the "Agreement") dated _________ between Triton and Entel according
to the following terms:
1. BTA Assignment:
2. Assigned Services:
3. Compensation
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel for pass through expenses as set forth in
Exhibit II of the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, OPERATING ENTEL TECHNOLOGIES, INC.
COMPANY, L.L.C.
__________________________________ _______________________________
__________________________________ _______________________________
Print Name Print Name
__________________________________ _______________________________
Title Date Title Date
<PAGE>
Attachment I
to
Microwave Relocation Services Agreement
Between Triton and Entel
List of Valid Paths Identified in Fast Start Report
---------------------------------------------------
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
INCUMBENT CallSign A CallSign B
---------------------------------------------------------------------------------------------------
<S> <C> <C>
1 BALTIMORE GAS AND ELECTRIC COMPANY KXU39 KGM71
- -----------------------------------------------------------------------------------------------------------
2 BALTIMORE GAS AND ELECTRIC COMPANY WIA716 KGM71
- -----------------------------------------------------------------------------------------------------------
3 BALTIMORE GAS AND ELECTRIC COMPANY WIA718 KGM71
- -----------------------------------------------------------------------------------------------------------
4 BALTIMORE GAS AND ELECTRIC COMPANY WIU50 WIU51
- -----------------------------------------------------------------------------------------------------------
5 BALTIMORE GAS AND ELECTRIC COMPANY WIU51 WIU50
- -----------------------------------------------------------------------------------------------------------
6 BALTIMORE GAS AND ELECTRIC COMPANY WIU51 WIU53
- -----------------------------------------------------------------------------------------------------------
7 BALTIMORE GAS AND ELECTRIC COMPANY WIU51 WNER321
- -----------------------------------------------------------------------------------------------------------
8 BALTIMORE GAS AND ELECTRIC COMPANY WIU53 WHH693
- -----------------------------------------------------------------------------------------------------------
9 CHARLESTON, COUNTY OF WNTI830 WNTI827
- -----------------------------------------------------------------------------------------------------------
10 CHARLESTON, COUNTY OF WNTI832 WNTI827
- -----------------------------------------------------------------------------------------------------------
11 CSX TRANSPORTATION, INC. WED261 WED260
- -----------------------------------------------------------------------------------------------------------
12 GEORGIA POWER COMPANY KVN45 KVN44
- -----------------------------------------------------------------------------------------------------------
13 GEORGIA POWER COMPANY KWB42 KUU45
- -----------------------------------------------------------------------------------------------------------
14 GEORGIA POWER COMPANY WCF334 WCF333
- -----------------------------------------------------------------------------------------------------------
15 GEORGIA POWER COMPANY WCF335 WCF334
- -----------------------------------------------------------------------------------------------------------
16 GEORGIA POWER COMPANY WEE719 WEE718
- -----------------------------------------------------------------------------------------------------------
17 GEORGIA POWER COMPANY WLQ95 WLQ94
- -----------------------------------------------------------------------------------------------------------
18 GEORGIA POWER COMPANY WLQ95 WSW68
- -----------------------------------------------------------------------------------------------------------
19 GEORGIA POWER COMPANY WLQ96 WLQ95
- -----------------------------------------------------------------------------------------------------------
20 GEORGIA POWER COMPANY WSW69 WSW70
- -----------------------------------------------------------------------------------------------------------
21 GWINNETT, COUNTY OF WNTI503 WNTI502
- -----------------------------------------------------------------------------------------------------------
22 GWINNETT, COUNTY OF WNTI506 WNTI501
- -----------------------------------------------------------------------------------------------------------
23 GWINNETT, COUNTY OF WNTI507 WNTI504
- -----------------------------------------------------------------------------------------------------------
24 MCNC WHJ607 WHJ605
- -----------------------------------------------------------------------------------------------------------
25 MCNC WHJ608 WHJ607
- -----------------------------------------------------------------------------------------------------------
26 MCNC WHJ609 WHJ608
- -----------------------------------------------------------------------------------------------------------
27 MCNC WHJ610 WHJ609
- -----------------------------------------------------------------------------------------------------------
28 MCNC WHJ612 WHJ611
- -----------------------------------------------------------------------------------------------------------
29 MCNC WNEM509 WNEM506
- -----------------------------------------------------------------------------------------------------------
30 MCNC WNEP255 WNEM507
- -----------------------------------------------------------------------------------------------------------
31 MCNC WNEQ911 WHJ611
- -----------------------------------------------------------------------------------------------------------
32 MOTOROLA INC WNTJ500 WNTJ499
- -----------------------------------------------------------------------------------------------------------
33 NORFOLK, CITY OF WNEY588 WNEY585
- -----------------------------------------------------------------------------------------------------------
34 NORTHERN VIRGINIA ELECTRIC COOPERATIVE WNEV214 WGY346
- -----------------------------------------------------------------------------------------------------------
35 NORTHERN VIRGINIA ELECTRIC COOPERATIVE WNEV215 WNEV214
- -----------------------------------------------------------------------------------------------------------
36 PENN CENTRAL COMMUNICATIONS COMPANY WHH827 WHH826
- -----------------------------------------------------------------------------------------------------------
37 PENNSYLVANIA, COMMONWEALTH OF WAS318 WAS317
- -----------------------------------------------------------------------------------------------------------
38 PENNSYLVANIA, COMMONWEALTH OF WEH554 WAS318
- -----------------------------------------------------------------------------------------------------------
39 PRINCE WILLIAM, COUNTY OF WNEP339 WNEO238
- -----------------------------------------------------------------------------------------------------------
40 PRINCE WILLIAM, COUNTY OF WNEP340 WNEO238
- -----------------------------------------------------------------------------------------------------------
</TABLE>
-II-
<PAGE>
- -----------------------------------------------------------------------------
41 PRINCE WILLIAM, COUNTY OF WNEP341 WNEO238
- -----------------------------------------------------------------------------
-III-
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
INCUMBENT CallSign A CallSign B
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
42 TENNESSEE, STATE OF WED337 WNTT447
- ----------------------------------------------------------------------------------------------------------
43 RICHMOND, FREDERICKSBURG AND POTOMAC WED832 WED828
- ----------------------------------------------------------------------------------------------------------
44 RICHMOND, FREDERICKSBURG AND POTOMAC WED833 WED828
- ----------------------------------------------------------------------------------------------------------
45 S.W. RODGERS COMPANY, INC. WNTA944 WNTY446
- ----------------------------------------------------------------------------------------------------------
46 S.W. RODGERS COMPANY, INC. WNTY447 WNTA945
- ----------------------------------------------------------------------------------------------------------
47 SAVANNAH ELECTRIC & POWER CO., INC. WNEQ726 WNEQ724
- ----------------------------------------------------------------------------------------------------------
48 SAVANNAH ELECTRIC & POWER CO., INC. WNEQ727 WNEQ723
- ----------------------------------------------------------------------------------------------------------
49 SOUTH CAROLINA ELECTRIC AND GAS CO. KZP27 KZP26
- ----------------------------------------------------------------------------------------------------------
50 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAM289 WAM288
- ----------------------------------------------------------------------------------------------------------
51 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAN224 WAN223
- ----------------------------------------------------------------------------------------------------------
52 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAN225 WAN224
- ----------------------------------------------------------------------------------------------------------
53 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAN227 WAN226
- ----------------------------------------------------------------------------------------------------------
54 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAN228 WAL351
- ----------------------------------------------------------------------------------------------------------
55 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WAP550 WAP274
- ----------------------------------------------------------------------------------------------------------
56 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WEF347 WAN217
- ----------------------------------------------------------------------------------------------------------
57 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WEF350 WAN219
- ----------------------------------------------------------------------------------------------------------
58 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WEG704 WEG703
- ----------------------------------------------------------------------------------------------------------
59 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WEG707 WAN228
- ----------------------------------------------------------------------------------------------------------
60 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WHC512 WAN222
- ----------------------------------------------------------------------------------------------------------
61 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WHC513 WHC512
- ----------------------------------------------------------------------------------------------------------
62 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY WNEE730 WAN225
- ----------------------------------------------------------------------------------------------------------
63 SOUTHERN EMERGENCY MEDICAL SRVCS INC WNES218 WNTS775
- ----------------------------------------------------------------------------------------------------------
64 SOUTHERN EMERGENCY MEDICAL SRVCS INC WNEZ938 WNES218
- ----------------------------------------------------------------------------------------------------------
65 SOUTHERN NATURAL GAS CO WNEL258 WNEL257
- ----------------------------------------------------------------------------------------------------------
66 SOUTHERN NATURAL GAS CO WNEL261 WNEL260
- ----------------------------------------------------------------------------------------------------------
67 SOUTHERN NATURAL GAS CO WNEP321 WNEP320
- ----------------------------------------------------------------------------------------------------------
68 SOUTHERN NATURAL GAS CO WNEP323 WNEP322
- ----------------------------------------------------------------------------------------------------------
69 SOUTHERN NATURAL GAS CO WNEP325 WNEP324
- ----------------------------------------------------------------------------------------------------------
70 SOUTHERN NATURAL GAS CO WNEP327 WNEP326
- ----------------------------------------------------------------------------------------------------------
71 SOUTHERN NATURAL GAS CO WNEP328 KIN62
- ----------------------------------------------------------------------------------------------------------
72 SOUTHERN NATURAL GAS CO WNEP330 WNEP325
- ----------------------------------------------------------------------------------------------------------
73 MCNC WNEW372 WHJ606
- ----------------------------------------------------------------------------------------------------------
74 UNIVERSITY OF MARYLAND WNTI984 WNTI983
- ----------------------------------------------------------------------------------------------------------
75 UNIVERSITY OF MARYLAND WNTI985 WNTI984
- ----------------------------------------------------------------------------------------------------------
76 UNIVERSITY OF MARYLAND WNTM952 WNTL678
- ----------------------------------------------------------------------------------------------------------
77 VIRGINIA ELECTRIC AND POWER COMPANY WNEQ700 WEG314
- ----------------------------------------------------------------------------------------------------------
78 VIRGINIA ELECTRIC AND POWER COMPANY WNER276 WNER275
- ----------------------------------------------------------------------------------------------------------
79 VIRGINIA, COMMONWEALTH OF KIB97 WIK97
- ----------------------------------------------------------------------------------------------------------
80 VIRGINIA, COMMONWEALTH OF KIR38 KIB62
- ----------------------------------------------------------------------------------------------------------
81 VIRGINIA, COMMONWEALTH OF KIR67 KIB78
- ----------------------------------------------------------------------------------------------------------
82 VIRGINIA, COMMONWEALTH OF KIS42 KIB55
- ----------------------------------------------------------------------------------------------------------
83 VIRGINIA, COMMONWEALTH OF KJB86 KIR67
- ----------------------------------------------------------------------------------------------------------
84 VIRGINIA, COMMONWEALTH OF KRQ50 KIR67
- ----------------------------------------------------------------------------------------------------------
85 WILLIAMS WIRELESS INC. KIC97 KIC96
- ----------------------------------------------------------------------------------------------------------
86 WILLIAMS WIRELESS INC. KIC99 KIC98
- ----------------------------------------------------------------------------------------------------------
87 WILLIAMS WIRELESS INC. KID21 KID20
- ----------------------------------------------------------------------------------------------------------
</TABLE>
-IV-
<PAGE>
- -----------------------------------------------------------------------------
88 WILLIAMS WIRELESS INC. KID32 KID30
- -----------------------------------------------------------------------------
-V-
<PAGE>
------------------------------------------------------------------------
INCUMBENT CallSign A CallSign B
- --------------------------------------------------------------------------------
89 WILLIAMS WIRELESS INC. KID34 KID29
- --------------------------------------------------------------------------------
90 WILLIAMS WIRELESS INC. KIY93 KIC98
- --------------------------------------------------------------------------------
91 WILLIAMS WIRELESS INC. KIY93 KID31
- --------------------------------------------------------------------------------
-VI-
<PAGE>
Attachment II
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 1
Triton PCS Operating Company, L.L.C. ("Triton") hereby requests that Entel
Technologies, Inc. ("Entel") provide the microwave relocation services (the
"Services") set forth below, pursuant to the Microwave Relocation Services
Agreement (the "Agreement") dated ______________ between Triton and Entel
according to the following terms:
8. BTA Assignment:
----------------------------------------------
BTA Number BTA Name
----------------------------------------------
[***]
9. Assigned Services:
Entel shall perform Spectrum Sharing Engineering Services and Phase I -
Market Relocation Analysis for the BTAs set forth above.
10. Compensation:
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
11. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
12. Pass Through Expenses:
Triton shall reimburse Entel for pass through expenses as set forth in
Exhibit II of the Agreement.
* Confidential Treatment Requested
-VII-
<PAGE>
WORK ORDER NO. 1
BETWEEN TRITON PCS OPERATING COMPANY, L.L.C.
AND ENTEL TECHNOLOGIES, INC.
CONTINUED
13. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
14. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS OPERATING COMPANY, L.L.C. ENTEL TECHNOLOGIES, INC.
/s/ Clyde Smith /s/ John T. Vento
- ------------------------------------- -------------------------------------
Clyde Smith John T. Vento
- ------------------------------------- -------------------------------------
Print Name Print Name
Executive Vice President President 1/6/98
- ------------------------------------- -------------------------------------
Title Date Title Date
-VIII-
<PAGE>
Attachment III
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS Operating Company, L.L.C.
and
Entel Technologies, Inc.
WORK ORDER NO.: 2
Triton PCS Operating Company, L.L.C. ("Triton") hereby requests that Entel
Technologies, Inc. ("Entel") provide the microwave relocation services (the
"Services") set forth below, pursuant to the Microwave Relocation Services
Agreement (the "Agreement") dated 1/6/98 between Triton and Entel, according to
the following terms:
15. BTA Assignment:
----------------------------------------------
BTA Number BTA Name
----------------------------------------------
[***]
16. Assigned Services:
Entel shall perform Phase II - Incumbent Negotiations and Final Contract
Execution services for paths identified by Entel as interfering with the
deployment of Triton's PCS system in the above referenced BTAs.
17. Compensation:
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
18. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
19. Pass Through Expenses:
Triton shall reimburse Entel for pass through expenses as set forth in
Exhibit II of the Agreement.
* Confidential treatment requested.
-IX-
<PAGE>
WORK ORDER NO. 2
BETWEEN TRITON PCS OPERATING COMPANY, L.L.C.
AND ENTEL TECHNOLOGIES, INC.
CONTINUED
20. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
21. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS OPERATING COMPANY, L.L.C. ENTEL TECHNOLOGIES, INC.
/s/ Clyde Smith /s/ John J. Vento
- ------------------------------------- -------------------------------------
Clyde Smith John J. Vento
- ------------------------------------- -------------------------------------
Print Name Print Name
Executive Vice President 2/11/98 President 1/6/98
- ------------------------------------- -------------------------------------
Title Date Title Date
-X-
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO. 3
Entel is hereby requested to provide the microwave relocation services (the
"Services") as set forth in Exhibit II of the Microwave Relocation Services
Agreement (the "Agreement") dated Jan. 6, 1998, between Triton PCS, Inc.
("Triton") and Entel Technologies, Inc. ("Entel") according to the following
terms:
1. BTA Assignment:
BTA Number BTA Name BTA Number BTA Name
- --------------------------------------------------------------------------------
[***] [***] [***] [***]
2. Scope of Services: Spectrum Sharing Engineering Study and Analysis as set
forth in Exhibit I.
3. Compensation
Triton shall compensate Entel in accordance with the pricing terms set forth
in the Agreement. Pricing for the requested service is $[***] per BTA. Total
billing for the services requested in this work order is $[***].
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in the Agreement.
5. Pass Through Expenses:
Pass Through Expenses will be billed as set forth in the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Clyde Smith /s/ Dariush Alipanah
- ---------------------------------- ---------------------------------------
Clyde Smith Dariush Alipanah
- ---------------------------------- ---------------------------------------
Print Name
Executive Vice President 11/23/98 Vice-President, Eng. Services 11/19/98
- ---------------------------------- ---------------------------------------
* Confidential treatment requested
<PAGE>
Title Date Date
* Confidential Treatment Requested
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 4
Triton PCS Operating Company, L.L.C. ("Triton") hereby requests that Entel
Technologies, Inc. ("Entel") provide the microwave relocation services (the
"Services") set forth below, pursuant to the Microwave Relocation Services
Agreement (the "Agreement") dated February 11, 1998, between Triton and Entel
according to the following terms:
1. BTA Assignment:
BTA Number BTA Name
- --------------------------------------------------------------------------------
[***] [***]
2. Assigned Services:
Entel shall prepare and issue the Prior Coordination Notices (PCNS) for the
BTAs set forth above.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] in providing the services requested in this work order.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS OPERATING COMPANY, L.L.C ENTEL TECHNOLOGIES, INC.
/s/ Michael H. Yglesias /s/ Mark W. Carter
- ----------------------------------- --------------------------------------
Michael H. Yglesias Mark W. Carter
- ----------------------------------- --------------------------------------
Print Name Print Name
RF Engineer Manager 2/19/99 Director - Fixed Network Eng. 3/1/99
- ----------------------------------- --------------------------------------
* Confidential Treatment Requested
<PAGE>
Title Date Title Date
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 5
Triton PCS Operating Company, L.L.C. ("Triton") hereby requests that Entel
Technologies, Inc. ("Entel") provide the microwave relocation services (the
"Services") set forth below, pursuant to the Microwave Relocation Services
Agreement (the "Agreement") dated February 11, 1998, between Triton and Entel
according to the following terms:
1. BTA Assignment:
BTA Number BTA Name
- --------------------------------------------------------------------------------
[***] [***]
2. Assigned Services:
Entel shall prepare and issue the Prior Coordination Notices (PCN) for the
BTA set forth above. This PCN is required due to a modification of the RF
design for this market.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] in providing the services requested in this work order.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS OPERATING COMPANY, L.L.C. ENTEL TECHNOLOGIES, INC.
/s/ Kevin Watts /s/ Mark W. Carter
- ------------------------------------ -----------------------------------
Kevin Watts Mark W. Carter
- ------------------------------------ -----------------------------------
Print Name Print Name
R F Engineering Mgr. 3/22/99 Director Fixed Network Eng. 3/17/99
- ------------------------------------ -----------------------------------
Title Date Title Date
* Confidential treatment requested
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 6
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave relocation services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
BTA Number BTA Name
- -----------------------------------------------------------
[***] [***]
2. Assigned Services:
Entel shall perform Spectrum Sharing Engineering Services for the BTAs set
forth above.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms set forth
in Exhibit II of the Agreement.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] in completing the services requested in this work order.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Shekhar Deshpande /s/ Mark W. Carter
- ----------------------------------- -------------------------------------
Shekhar Deshpande Mark W. Carter
- ----------------------------------- -------------------------------------
Print Name Print Name
VP Engineering & Operations 3/25/99 Director - Fixed Network Eng. 3/25/99
- ----------------------------------- -------------------------------------
Title Date Title Date
* Confidential treatment requested
Page 1 of 1
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 7
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve the [***].
2. Assigned Services:
Entel shall perform Microwave Engineering Services for [***] target sites
located in the BTA set forth above. The target sites are PCS sites that
require a microwave link to an adjacent PCS site in order to obtain T1
service. Triton has provided a list of [***] candidate donor sites for the
[***] target sites. Therefore, Entel will complete path surveys for [***]
links as directed by Triton.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the attached Scope of Services. Entel will complete only those services as
requested by Triton for each link and Triton shall compensate Entel
accordingly.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Michael H. Yglesias /s/ Mark W. Carter
- ------------------------------- ----------------------------------------
Michael H. Yglesias Mark W. Carter
- ------------------------------- ----------------------------------------
Print Name Print Name
RF Engineering Manager 4/2/99 Director - Fixed Network Eng. 4/5/99
- ------------------------------- ----------------------------------------
Title Date Title Date
* Confidential treatment requested
Page 1 of 1
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 8
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve microwave paths
identified in the spectrum sharing studies associated with Work Orders #3 and
#6. However, paths that were also identified in the spectrum sharing studies
associated with Work Order #1 are excluded from this list.
2. Assigned Services:
Entel shall perform Microwave Relocation Services Phase I, Market Relocation
Analysis for the [***] microwave paths listed on Attachment A to
this Work Order.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the Microwave Relocation Services Agreement as listed in Attachment A.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] in completing the services requested in this work order.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Shekhar Deshpande /s/ Mark W. Carter
- ---------------------------------- -----------------------------------------
Shekhar Deshpande Mark W. Carter
- ---------------------------------- -----------------------------------------
Print Name Print Name
VP - Engineering 4/19/99 Director - Fixed Network Eng. 4/16/99
- ---------------------------------- -----------------------------------------
Title Date Title Date
* Confidential treatment Requested
Page 1 of 1
<PAGE>
[LOGO]
Wireless Facilities Inc. Triton PCS April 16, 1999
Attachment A
Work Order #8 Path List
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Listed Work Work
Path in Link ID INCUMBENT CALLSIGN- RX Freq SITE-NAME CALL RX Freq Order 3 Order 6 Billing
No. MSA 1 1 2 SIGN 2 2 BAND Path Path Amount
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[***] [***] [***] AT&T WIRELESS SERVICES WPNC918 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] AT&T WIRELESS SERVICES WPNC916 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] ATLANTA JOURNAL WNEF522P [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] BASSETT-WALKER INC. WNEE506 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] CSX TRANSPORTATION INC WED260 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] FULTON COUNTY COMMUNICA WNEQ438 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] GWINNETT COUNTY DEPT O WNT1501 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] GWINNETT COUNTY DEPT O WNT1506 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] GWINNETT COUNTY DEPT O WNT1502 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] GWINNETT COUNTY DEPT O WNT1507 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] HOWARD COUNTY BUREAU OF WNEY469 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] SANTEE COOPER - PUBL WEG704 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] SARA LEE CORPORATION WNEF532 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] VIRGINIA COMMONWEALTH S KIR39 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] VIRGINIA COMMONWEALTH S KIS42 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] VIRGINIA ELECTRIC & POW WEG314 [***] [***] [***] [***] [***] [***] [***] $[***]
- -----------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] WILLIAMS WIRELESS INC. KID31 [***] [***] [***] [***] [***] [***] [***] $[***]
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 9
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve multiple BTAs
in the [***] region.
2. Assigned Services:
Entel shall perform Microwave Engineering Services for [***] proposed
microwave paths. The [***] proposed paths are listed on Attachment II to this
work order.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the attached Statement of Work. Entel will complete only those services as
requested by Triton for each link and Triton shall compensate Entel
accordingly.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Nicholas Pepenelli /s/ Mark W. Carter
- --------------------------------- -----------------------------------------
Nicholas Pepenelli Mark W. Carter
- --------------------------------- -----------------------------------------
Print Name Print Name
Technical Director 5-5-99 Director - Fixed Network Eng.
- --------------------------------- -----------------------------------------
Title Date Title Date
Page 1 of 1
<PAGE>
[LOGO]
STATEMENT OF WORK
Microwave Path Feasibility Analysis
A. Upon receiving site information (proposed microwave locations, associated
coordinates and antenna structure heights) from Customer, WFI will
complete a preliminary path profile utilizing [***] data in order to
determine if the proposed path is feasible.
Each Path .......................... $[***]
B. Upon completion of Step A above, and determining that a proposed microwave
path is feasible, WFI will [***]. Utilizing the [***], WFI will [***].
Again, WFI will [***].
Each Path .......................... $[***]
Note: [***].
Microwave Link Engineering and Path Survey
Upon completing Steps A and B above, and determining that a proposed microwave
path is feasible, WFI will [***]. WFI will physically survey the path, measure
and document obstructions along the path. WFI will complete a path profile
utilizing [***]. WFI will revise the path profile incorporating measured
obstruction data.
Upon completion of the site surveys, physical path survey and path profile, WFI
will prepare and submit a path survey/system design report that includes the
following data:
. Site coordinates and elevations as verified by USGS topographical maps.
. Documentation of path obstructions.
. Path profile, including recommended antenna centerlines based upon
specified design criteria
. Microwave system design, based upon the specified design criteria and
proposed microwave equipment
. Detailed equipment list for recommended antenna and radio systems for
each site.
Pricing ..................... $[***]
..................... $[***]
Note: If Step B is required and completed, WFI will not charge customer
for Step A.
[***]
Note: [***]
-- Proprietary & Confidential --
* Confidential treatment requested
<PAGE>
Wireless Facilities Inc. Triton PCS April 16, 1999
Attachment II to Work Order No. 9
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Ref
Path Proposed Dist point AMSL 1 Height 1 AMSL 2 Height 2 Azimuth 1 Azimuth 2
No. Microwave # Site 1 Site 2 Test Heights (ft) in mile (ft) (ft) (ft) (ft) (ft) (deg) (deg)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
I-26 site 1 site 2
- ---------------------------------------------------------------------------------------------------------------------------
[***]
</TABLE>
<PAGE>
Wireless Facilities Inc. Triton PCS April 16, 1999
Attachment II to Work Order No. 9
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Ref
Path Proposed Dist point AMSL 1 Height 1 AMSL 2 Height 2 Azimuth 1 Azimuth 2
No. Microwave # Site 1 Site 2 Test Heights (ft) in mile (ft) (ft) (ft) (ft) (ft) (deg) (deg)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[***]
ADDITIONAL LINKS TO BE EVALUATED
[***]
[***]
</TABLE>
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 10
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve multiple BTAs.
2. Assigned Services:
Entel shall perform Comparable Cost Appraisal and Reimbursement Negotiation
Services as detailed on the attached Scope of Services. Entel shall perform
such services for all microwave paths for which Triton is responsible for
cost-sharing reimbursement to a PCS Relocator(s).
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the attached Scope of Services.
4. Payment Schedule:
Entel shall invoice Triton upon providing the "Deliverables" associated with
each requested service. Triton shall provide payment for such services within
30 days of receiving the associated invoice(s).
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Clyde Smith /s/ Mark W. Carter
- -------------------------------- -----------------------------------------
Clyde Smith Mark W. Carter
- -------------------------------- -----------------------------------------
Print Name Print Name
Executive Vice President 5/17/99 Director - Fixed Network Eng. 5/6/99
- -------------------------------- -----------------------------------------
Title Date Title Date
Page 1 of 1
<PAGE>
Comparable Cost Appraisal and Cost-Sharing Negotiations
-------------------------------------------------------
Scope of Services
-----------------
Phased Delivery of Services
- ---------------------------
WFI will supply to Customer all labor, services, resources, and consultation
necessary to perform the 2 GHz microwave cost-sharing negotiation services
described more particularly below. These services are in regard to negotiating
on behalf of the Customer with the PCS Relocator seeking reimbursement from the
Customer through a designated FCC Clearinghouse. The goal of these services is
to reduce the cost-sharing reimbursement amount paid by the Customer to the PCS
Relocator.
The Services shall be delivered to Customer in two phases:
Phase I: Comparable System Cost Appraisal
--------
Phase II: Cost-Sharing Negotiations
--------
The steps required for each of the three phases are described in detail
below.
Phase I: Comparable System Cost Appraisal
- -----------------------------------------
WFI will utilize FCC database information and information obtained from
microwave incumbents as required to complete an appraisal of the cost associated
with the replacement of a relocated co-channel path that is subject to cost-
sharing reimbursement as per the FCC's cost-sharing rules.
A. Service Description
-------------------
1. Review of FCC Data. WFI will review system data for each link
------------------
assigned as included in the FCC database prior to the relocation
of the path. WFI will reference this data in the relocation cost
appraisal.
2. Incumbent Contact and Replacement System Verification. WFI will
-----------------------------------------------------
contact each incumbent and attempt to confirm database
information and request information concerning the actual
replacement system installed by the incumbent or the PCS
Relocator. WFI will utilize such information in determining the
appropriate allowable reimbursement as required by the FCC's
cost-sharing rules.
3. Replacement System Design and Cost Appraisal. WFI will complete
---------------------------------------------
the design of a microwave replacement system for each assigned
link. This design will be based on a replacement system that is
comparable to the original 2 GHz link, as defined by the FCC's
cost-sharing rules. Information such as system type and
architecture, tower heights, and typical system usage will be
used to develop these cost estimates. Additionally, if available,
WFI will utilize actual replacement system data, as provided by
incumbents, in order to determine what premiums the PCS Relocator
provided to the microwave incumbent.
<PAGE>
B. Deliverables
------------
WFI will provide a written report to Customer containing the following
information:
1. Copies of FCC licenses for actual replacement systems, if available;
2. System data (antenna types/sizes, radio manufacture/model, antenna
heights, etc.) for each 2 GHz link subject to cost-sharing;
3. Detailed comparable replacement system design, and;
4. Comparable system replacement cost documentation.
Phase II: Cost-Sharing Negotiations and Final Cost-Sharing Contract Execution
- ------------------------------------------------------------------------------
A. Service Description
-------------------
A step-by-step outline of the negotiation and information-gathering
efforts to be performed by WFI in this phase is as follows:
1. Introductory Mailing. WFI will identify the proper technical and
--------------------
negotiation contact for each PCS Relocator and send an
introductory mailing packet containing general information on
microwave relocation and specific information about Customer and
its proposed course of action.
2. Negotiation Parameters. WFI will work with Customer to develop
----------------------
negotiation parameters. These parameters should be established
prior to the commencement of negotiations so that settlements may
be negotiated expeditiously.
3. Development of Negotiation Strategies. WFI will work with
-------------------------------------
Customer to develop optimal negotiation strategies for each PCS
Relocator. These strategies will be based upon the reimbursement
amount requested by the PCS Relocator, the estimated cost of
comparable facilities, and the architecture and cost of the
actual replacement system, if available.
4. Initiate Negotiations. WFI will negotiate with the PCS Relocator
---------------------
to obtain an optimal cost-sharing settlement and agreement that
are acceptable to the Customer.
5. Negotiation Strategy. WFI will re-assess negotiation parameters
--------------------
and strategies as required, based on discussions with the PCS
Relocator(s), and additional information obtained from incumbents
and/or the PCS Relocator(s).
6. Contract Templates. If Customer requires such contact, WFI shall
------------------
develop and provide a cost-sharing contract template for the
Customer's review. Customer's inside counsel shall review and
modify the contract template as required.
7. Finalize Cost-Sharing Terms. WFI will provide the proposed
---------------------------
business terms to Customer for approval.
8. Finalize Cost-Sharing Agreement. Once Customer has approved the
-------------------------------
business terms, WFI shall work with Customer's counsel to
facilitate the negotiation and
Proprietary and Confidential
Page 2 of 4
<PAGE>
execution of the final cost-sharing agreement between Customer
and the PCS Relocator.
B. Deliverables
------------
WFI will provide Customer with the following deliverables:
1. Signed cost-sharing offer letter;
2. Executed contract between PCS Relocator and Customer, if required;
3. Copies of any correspondence that Customer may request;
Additionally, WFI will submit periodic reports to Customer, detailing the status
of each negotiation and summarizing the information obtained on each path
assigned for negotiation.
Proprietary and Confidential
Page 3 of 4
<PAGE>
Pricing and Pass-Through Expenses for
-------------------------------------
Comparable Cost Appraisal and Cost-Sharing Negotiations
-------------------------------------------------------
1) Phase I - Comparable Replacement System Cost Appraisal
(1) First path per incumbent microwave licensee: $ [***]
(2) Each additional path per incumbent microwave licensee: $ [***]
Note: In the event that the [***] and [***].
2) Phase II - Cost-Sharing Negotiations
(1) For negotiations for each PCS Relocator assigned by Customer, WFI
shall charge Customer [***]% of the difference between the
reimbursement amount initially requested by the PCS Relocator
through the FCC Clearinghouse and the final reimbursement amount
negotiated by WFI and agreed upon by the PCS Relocator and Customer.
3) Expense Reimbursement
The pricing set forth above includes WFI's Services only and does not
include the travel expenses set forth below that may be required to
complete a comprehensive comparable cost appraisal and negotiations with
the PCS Relocator. Customer shall reimburse WFI for the cost of the
following expenses paid for by WFI.
Activity Typical Cost
-------- ------------
Travel Expenses [***] average per trip
(Reimbursable expenses include [***]).
WFI shall invoice Customer on a monthly basis for pass-through expenses.
Proprietary and Confidential
Page 4 of 4
* Confidential treatment requested
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 12
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The subject microwave path is located in the [***] market.
2. Assigned Services:
Entel shall perform Microwave Engineering Services for the existing microwave
path between Station [***] to [***]. These Engineering Services will include
the completion of a Path Profile using 30-meter terrain data and a field
survey in order to determine the cause for the intermittent outages
experiences on this path.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
with the Statement of Work associated with Work Order No. 9.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement. As this field survey shall be
completed at the same time as the surveys for the repeater paths in Triton's
southeastern region, the Pass Through Expenses will be billed the charges for
work order no. 9.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Nicholas Pepenelli /s/ Mark W. Carter
- --------------------------------- -----------------------------------------
Nicholas Pepenelli Mark W. Carter 6/10/99
- --------------------------------- -----------------------------------------
Print Name Print Name
* Confidential Treatment Requested
Page 1 of 2
<PAGE>
Technical Director, South 6/4/99 Director - Fixed Network Eng. 6/10/99
- --------------------------------- -----------------------------------------
Title Date Title Date
Page 2 of 2
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 13
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The subject microwave paths are located in the [***] market.
2. Assigned Services:
Entel shall provide Frequency Coordination Services and prepare FCC
applications for Stations [***] in order to enable Triton to modify the
channel capacities of the existing [***].
3. Compensation:
Entel's fee for the Assigned Services totals $[***] ([***]). [***].
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement. As this field survey shall be completed
at the same time as the surveys for the repeater paths in Triton's
southeastern region, the Pass Through Expenses will be billed the charges for
work order no. 9.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Nicholas Pepenelli /s/ Mark W. Carter
- --------------------------------- -------------------------------------
Nicholas Pepenelli Mark W. Carter
- --------------------------------- -------------------------------------
Print Name
Technical Director, South 6/4/99 Director-Fized network Eng. 6/10/99
- --------------------------------- -------------------------------------
Title Date Title
* Confidential treatment requested
Page 1 of 1
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 14
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve the [***]
BTA.
2. Assigned Services:
Entel shall perform Microwave Engineering Services for [***] proposed
microwave paths located in the BTA set forth above. These links and the
services requested are listed on Attachment 1 to Work Order 14.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the attached Scope of Services. Entel will complete only those services as
requested by Triton for each link and Triton shall compensate Entel
accordingly.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse Entel on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
- ---------------------------- ----------------------------------
Mark W. Carter
- ---------------------------- ----------------------------------
Print Name Print Name
Director - Fixed Network Eng.
- ---------------------------- ----------------------------------
Title Date Title Date
* Confidential treatment requested
Page 1 of 2
<PAGE>
ATTACHMENT 1 to Work Order #14
PATH LIST
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Path Site 1 Site 2 Profile Using 3" Profile Using 7.5 Path Charge
No. Terrain Data minute topographic Survey
data
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
[***]
</TABLE>
* Cofidential treatment requested
Page 2 of 2
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement
Between
Triton PCS, Inc. and Wireless Facilities Inc. (legal successor to Entel
Technologies, Inc.)
WORK ORDER NO.: 15
Triton PCS, Inc. ("Triton") hereby requests that Wireless Facilities Inc.
("WFI") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and WFI according to the following
terms:
1. BTA Assignment:
The subject microwave paths are located in the [***] market.
2. Assigned Services:
WFI shall provide Frequency Coordination Services for the following links:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Link No. Call Sign 1 Site Name 1 Call Sign 2 Site Name 2 Action
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
[***]
- -------------------------------------------------------------------------------------------------------------
</TABLE>
WFI shall prepare FCC applications as required for the requested Frequency
Coordination Services for Stations [***] in order to enable Triton to modify
the channel capacities of the existing paths listed above.
3. Compensation:
WFI's fee for the Assigned Services totals $[***] ([***]).
4. Payment Schedule:
Triton shall compensate WFI in accordance with the payment schedule set forth
in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] for the services associated with this work order.
6. Commencement of Services:
WFI shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
* Confidential treatment requested
Page 1 of 2
<PAGE>
Triton - Work Order No. 15, Page 2
TRITON PCS, INC. WFI FACILITIES INC.
/s/ Nicholas Pepenelli /s/ Mark W. Carter
- ------------------------------ -------------------------------
Nicholas Pepenelli Mark W. Carter
- ------------------------------ -------------------------------
Print Name
V.P. Eng. & OPS 7-27-99 Director - Sales 7/28/99
- ------------------------------ -------------------------------
Title Date Title Date
Page 2 of 2
<PAGE>
Work Order Pursuant To
Microwave Relocation Services Agreement Between
Triton PCS, Inc. and Wireless Facilities Inc. (legal successor to Entel
Technologies, Inc.)
WORK ORDER NO.: 17
Triton PCS, Inc. ("Triton") hereby requests that Wireless Facilities Inc.
("WFI") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and WFI according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve a proposed
microwave path in the [***] BTA and an existing path near [***]
2. Assigned Services:
WFI shall perform Microwave Engineering Services for the following proposed
microwave path.
<TABLE>
<CAPTION>
---------------------------------------------------------------
Path No. Site 1 Site 2
---------------------------------------------------------------
<S> <C> <C>
[***]
</TABLE>
3. Compensation:
Triton shall compensate WFI in accordance with the pricing terms included in
the attached Statement of Work.
4. Payment Schedule:
Triton shall compensate WFI in accordance with the payment schedule set forth
in Exhibit II of the Agreement.
5. Pass Through Expenses:
Triton shall reimburse WFI on a monthly basis for pass through expenses set
forth in Exhibit II of the Agreement.
6. Commencement of Services:
WFI shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. WFI FACILITIES INC.
/s/ Nicholas Pepenelli /s/ Mark W. Carter
- -------------------------------------- -------------------------------
Nicholas Pepenelli Mark W. Carter
- -------------------------------------- -------------------------------
Print Name Print Name
V.P Ops & Eng 7/27/99 Director Sales 7/28/99
- -------------------------------------- -------------------------------
Title Date Title Date
* Confidential treatment requested
Page 1 of 1
<PAGE>
[LOGO]
STATEMENT OF WORK
Microwave Path Feasibility Analysis
A. Upon receiving site information (proposed microwave locations, associated
coordinates and antenna structure heights) from Customer, WFI will
complete a preliminary path profile utilizing [***] data in order to
determine if the proposed path is feasible.
Each Path .......................... $[***]
B. Upon completion of Step A above, and determining that a proposed microwave
path is feasible, WFI will [***]. Utilizing the [***], WFI will [***].
Again, WFI will [***].
Each Path .......................... $[***]
Note: [***].
Microwave Link Engineering and Path Survey
Upon completing Steps A and B above, and determining that a proposed microwave
path is feasible, WFI will [***]. WFI will physically survey the path, measure
and document obstructions along the path. WFI will complete a path profile
utilizing [***]. WFI will revise the path profile incorporating measured
obstruction data.
Upon completion of the site surveys, physical path survey and path profile, WFI
will prepare and submit a path survey/system design report that includes the
following data:
. Site coordinates and elevations as verified by USGS topographical maps.
. Documentation of path obstructions.
. Path profile, including recommended antenna centerlines based upon
specified design criteria
. Microwave system design, based upon the specified design criteria and
proposed microwave equipment
. Detailed equipment list for recommended antenna and radio systems for
each site.
Pricing ..................... $[***]
..................... $[***]
Note: If Step B is required and completed, WFI will not charge customer
for Step A.
[***]
Note: [***]
-- Proprietary & Confidential --
* Confidential treatment requested
<PAGE>
EXHIBIT 10.27
---------------------------------
Confidential Treatment Requested
under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
SITE DEVELOPMENT SERVICES AGREEMENT
-----------------------------------
THIS SITE DEVELOPMENT SERVICES AGREEMENT (Agreement") dated as of the 10th day
of December, 1997 ("Effective Date"), by and between Triton PCS, Inc., a
Delaware limited liability company or its nominee ("Triton") and Entel
Technologies, Inc., a Delaware corporation ("Entel").
WITNESSETH:
WHEREAS, Triton desires to engage Entel to perform services related to the
development of a personal communication services ("PCS") system (the "System")
to serve the Washington, D.C./Richmond/Norfolk, Virginia Major Trading Area (the
"Service Area") comprising certain sites of real property which are designated
by Triton from time to time through a letter of authorization ("Authorization
Letter") and upon which antennae towers, wires, and/or other ancillary PCS
equipment shall be located ("Site");
WHEREAS, Triton desires to enter into an arrangement with Entel for certain
services, as hereinafter defined, relating to the development of certain
portions of the System, to include site acquisition, zoning, and construction
management services;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed as follows:
1. RELATIONSHIP OF PARTIES
-----------------------
The parties intend by this Agreement to establish an independent
contractor relationship. Neither party nor their employees shall be
agents or legal representatives of the other party for any purpose,
and neither shall have authority to act for, bind, or commit the other
party. Entel and Triton agree that this Agreement does not establish a
franchise, joint venture, or partnership for any purpose.
2. REQUIRED SERVICES
-----------------
Entel shall be assigned a range of sites between [***] sites ("Base
Number") and [***] or more sites ("Maximum Number") to perform site
development services ("Site Development Services") for Triton with respect
to the System. Entel shall devote such time and resources as are necessary
to ensure proper and expeditious completion of its duties hereunder and
shall make available to the System the full range of its expertise and
experience in constructing wireless systems. Site Development Services
shall consist of the services described on Attachment A hereto.
A. Entel Deliverables; Reporting; Approval by Triton. Within 10
-------------------------------------------------
business days after execution of this Agreement, Triton and Entel
shall agree upon and prepare a detailed schedule for the
completion of Site Development Services on a site-by-site basis,
which schedule shall become Attachment B to this Agreement. The
schedule shall contain, at a minimum, milestone dates for
completion by Entel of Site Acquisition, Site Zoning, and Site
Construction Services (each as defined in Attachment A). This
Agreement shall automatically terminate if the parties are
unable, after good faith negotiations, to agree to a schedule
within the allotted 10 business days; provided, however, in the
-----------------
event of such termination, Triton shall pay to Entel all
professional fees and out-of-pocket expenses incurred by Entel
prior to such termination, which fees shall not exceed $[***].
Following approval of this schedule by Triton, Entel shall,
thereafter, for the term of this Agreement, provide Triton with
not less than a written weekly report outlining the progress made
to attain the schedule previously submitted. Any change in
schedule which results in a time extension of one week or greater
on an individual site basis shall be clearly noted and the
reasons therefore shall be explained in writing. Triton may, at
* Confidential Treatment Requested
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its sole discretion, agree to a time extension from the detained
schedule originally provided. Entel shall attend all project
meetings reasonably requested by Triton.
B. Payments to Contractors. Triton shall be responsible for making
-----------------------
all payments due to contractors and subcontractors selected by
Triton to perform services at the Sites. Notwithstanding the
foregoing, Triton, at its option, may require Entel to contract
directly with all trade contractors and subcontractors for
provision of services at the Sites. Should Triton exercise such
option, Entel shall be responsible for disbursing funds for
payment only to those contractors, subcontractors, material
providers, and other service providers engaged by Entel directly.
Entel shall present copies of all such invoices relating to
construction of the Sites to Triton, and Triton shall then
provide Entel reimbursement of such disbursements plus [***]
percent ([***]%) within thirty (30) days of Entel's submission of
said invoices to Triton.
3. PERSONNEL
---------
A. Entel Employees and Agents. Entel may elect to rely upon its own
--------------------------
employees and agents for the performance of services under this
Agreement to the extent it, in its sole discretion, deems such
action to be necessary or advisable. Triton reserves the right to
approve Entel employees and/or contractors assigned to perform
services under this Agreement.
B. Independent Contractors. Entel may engage independent contractors
-----------------------
at Triton's consent to perform Site Development Services. Entel
shall be responsible for selecting and contracting such
independent contractors.
C. Self Dealing. Entel may rely upon its employees in accordance
------------
with Section 3 (B) above and, in addition, it may provide or
contract with an affiliate of Entel with Triton's consent at fair
market rates in accordance with competitive bids to provide goods
or services beyond those which its employees would perform, if it
deems the same to be necessary or advisable for construction of
the Sites. Entel will not, nor will any of its affiliates,
receive any compensation other than as set forth in Section 4 and
6 herein as a result of, arising from, or relating to Site
Development Services. If any such compensation would have
otherwise been payable, Entel agrees to transfer the benefit of
such compensation to Triton.
D. Prohibition of Solicitation. During the term of this Agreement,
---------------------------
neither party shall solicit nor accept for employment any
employees of the other party without the express written consent
of the other party.
4. COMPENSATION
------------
A. Reimbursement. Entel's compensation hereunder, as described in
-------------
Section 4 (B), shall be inclusive of any and all out-of-pocket
expenses, as described in Section 5, incurred by Entel in the
performance of its obligations hereunder. Any extraordinary or
other expenses which Entel anticipates incurring which are not
customarily incurred in the ordinary course of business must be
approved by Triton prior to the expenditure in order for Entel to
receive reimbursement for such expenditures.
B. Milestone Rates. In consideration for performance of the Site
---------------
Development Services, Triton shall compensate Entel the Milestone
Rates set forth below:
Milestone
---------
Milestone Services Rates
------------------ -----
(i) Site Survey Milestone [***]
(ii) Lease Milestone [***]
(iii) Zoning Milestone [***]
* Confidential Treatment Requested
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(iv) Building Permit Milestone [***]
(v) Construction Commencement Milestone [***]
(vi) Construction Completion Milestone [***]
C. Alternative Sites. In the event Triton elects to withdraw a Site
-----------------
assigned to Entel under the Authorization Letter or terminate this
Agreement in accordance with Section 8 hereof, Triton shall give Entel
notice of such withdrawal, and shall pay Entel [***]% of the
installment due for a Milestone Service which has been completed prior
to the notice of withdrawal or termination and time and materials for
a Milestone Service in process since the last completed Milestone in
accordance with the rates set forth in Section 4 (B).
D. Additional Services. In the event Triton desires Entel to perform
-------------------
isolated tasks associated with a Site not set forth on Attachment A,
Triton shall pay Entel at its standard hourly rates listed on
Attachment C.
E. Statements. Entel shall provide Triton with statements showing in
----------
reasonable detail the calculation of Milestone Rates earned during the
last calendar month not more than thirty (30) calendar days following
the end of each calendar month. The Milestone Rates shall be paid by
Triton to Entel within thirty (30) days following such submission of
invoices by Entel unless disputed by Triton as provided below.
F. Disputes. If Triton disputes the amount of expenses or fees claimed by
--------
Entel, Triton shall notify Entel in writing before payment is due,
shall include in such notice the factual basis for the dispute, and
shall pay when due all amounts not in dispute.
G. Applicability of Section. Payment shall be due Entel from Triton under
the provisions of this Section with respect to all Site Development
Services performed by Entel for Triton from and after the Effective
Date.
5. NON-REIMBURSABLE COSTS
-----------------------
Entel's compensation, described in Section 4 (B), is inclusive of the
following out-of-pocket expenses:
A. Cellular phones/pagers;
B. Cellular/paging service;
C. Field expenses for maps, deeds & film development;
D. Vehicle expense;
E. Office equipment, including computers and copiers, if additional
copiers are required beyond what is provided at Triton's field
offices;
F. Office vent, if additional space is required beyond what is provided
at Triton's field offices
G. Office supplies;
H. Overnight Mail excluding the cost of overnight mail for construction
bids;
I. Telephone Service;
J. Travel and Living expenses; and
K. GIS mapping.
6. REIMBURSABLE COSTS
------------------
As described in Section 2(B), Triton, at its option, may require Entel to
contract directly with third parties, trade contractors, and subcontractors
for provision of services at the Sites. The following expenses shall be
considered pass through costs and shall be reimbursed to Entel as additional
compensation in accordance with the terms and conditions, as described in
Section 2(B):
A. Any and all construction materials used in the construction of the
sites;
* Confidential Treatment Requested
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B. Any and all construction subcontractor cost including, but not limited
to, cable and antenna contractors, electricians, and tower erectors;
C. Architectural and engineering drawings;
D. Azimuth verification surveys;
E. Blueprint reproduction;
F. Building inspection fees;
G. Cable sweeps and other technical tests;
H. Purchase price for real estate acquisitions and easement rights;
I. All municipal filing, permit, and inspection fees;
J. Delivery costs for all materials;
K. Engineering services;
L. Federal Aviation Administration study and analysis;
M. Floodway investigation;
N. Independent inspection agencies;
O. Legal support and expert witness fees for zoning hearings;
P. Option fees for leases, lease options, purchase agreements, and
purchase agreement options;
Q. Overnight mail for construction bids;
R. Phase I Environmental Study including soil compaction, engineering,
and other inspections of the property required or reasonably deemed
necessary to provide a thorough due diligence review of the project;
S. Photo simulations if not available through Entel's in-house
capabilities;
T. Site survey;
U. Soils tests and reports, including geotechnical testing;
V. Structure loading study and analysis for towers, rooftops, water
tanks, billboards and signs, and other similar facilities expected to
contain PCS equipment;
W. Appraisals, title reports, and title insurance premiums; and
X. Tower/foundation design information.
7. TERM
----
The Agreement shall have an initial term of fifteen (15) months commencing
on the Effective Date. The Agreement shall be renewed automatically for
additional 1-year-terms unless one party notifies the other party of an
intent to cancel the Agreement at the end of its then current term by
written notice delivered at least 90 days prior to the end of the then
current term.
8. TERMINATION.
-----------
A. In addition to its rights to terminate this Agreement in accordance
with Section 2 and Section 14:
i. Triton may terminate the Agreement upon written notice thereof
if there is a material breach of the Agreement by Entel
(including, without limitation, Entel's failure to provide
either timely or quality Site Development Services); or
ii. Triton may terminate the Agreement upon written notice thereof
if Entel shall: (i) become insolvent; (ii) make an assignment
for the benefit of creditors; (iii) file a voluntary
bankruptcy petition; (iv) acquiesce to any involuntary
bankruptcy petition; (v) be adjudicated bankrupt; or (vi)
cease to do business.
* Confidential Treatment Requested
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<PAGE>
B. Entel may terminate the Agreement on 30 days calendar days' written
notice in the event of any of the following:
i. a material breach of the Agreement by Triton, which has not
been cured within 30 calendar days of Triton's receipt of
written notice of such breach from Entel; or
ii. Triton shall: (i) become insolvent; (ii) make an assignment for
the benefit of creditors; (iii) file a voluntary bankruptcy
petition; (iv) acquiesce to any involuntary bankruptcy
petition; (v) be adjudicated bankrupt; or (vi) cease to do
business.
C. After receipt of such written notice of termination, but prior to the
effective date of such termination, Entel shall continue to perform
under the Agreement unless specifically instructed by Triton to
discontinue such performance. Entel will be entitled to Milestone
Rates payable in accordance with Section 4 hereof, which accrue
through the date of discontinuance of performance on the basis of
activities preceding the discontinuance of performance.
9. CONSENT TO JURISDICTION
-----------------------
The parties hereby irrevocably (i) submit to the jurisdiction of any
Pennsylvania state court or federal court sitting in the Commonwealth of
Pennsylvania with respect to any suit, action, or proceeding relating to
this Agreement or any related agreement, (ii) waive any objection which they
may now or hereafter have to the laying of venue of any such suit, action,
or proceeding brought in any such court and any claim that any such suit,
action, or proceeding brought in any such court has been brought in an
inconvenient forum, (iii) waive the right to object that any such court does
not have jurisdiction over them, and (iv) consent to the service of process
in any such suit, action, or proceeding by the mailing of copies of such
process to the parties by certified mail to the addresses indicated in this
Agreement or at such other addresses of which the parties shall have
received written notice. Nothing herein shall preclude any party from
enforcing any judgment obtained in the Commonwealth of Virginia in any other
jurisdiction.
10. CONDITIONS, REPRESENTATIONS AND WARRANTIES
------------------------------------------
A. Representations and Warranties. The parties represent and warrant to
------------------------------
one another that they have full power and authority to enter into and
perform this Agreement and that execution of this Agreement and their
performance of their respective obligations hereunder do not and will
not violate any agreement between either such party and any third
party or any obligation of either such party to any third party,
including, without limitation, any non-compete agreement or similar
obligation.
B. Entel warrants that it has complied with all applicable federal,
state, and local registration and licensing requirements to enable it
to act as an independent contractor under the terms of this Agreement.
C. Entel has the skill necessary to perform the services required
pursuant to this Agreement, and all Site Development Services provided
by Entel shall be timely and performed in a professional manner and
shall be of a high grade nature and quality, commensurate with that
which is customary in the industry.
D. Each of the employees and subcontractors utilized by Entel for Site
Development Services hereunder shall be of the highest professional
skill and quality. At any time, Triton has the right to require the
removal of any employee or subcontractor utilized or supervised by
Entel, at Triton's sole discretion.
E. Entel shall pay all applicable local, state, and federal withholding
and insurance amounts when due and shall comply with all applicable
minimum wage requirements with respect to its employees.
* Confidential Treatment Requested
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F. Entel will during the term of this Agreement maintain insurance
policies sufficient to protect its business against all applicable
risks. Without limiting the scope of the foregoing, Entel shall
maintain: Commercial General Liability coverage in an amount of not
less than $1,000,000 per occurrence for bodily injury or death,
personal injury, and property damage liability; and for all motor
vehicles used by employees during the course of this Agreement,
liability and property damage insurance in the amount of $1,000,000.
Entel agrees to name Triton as additional insured under the above
coverages. Entel will secure and maintain all required insurance for
its employees during the term of this Agreement. All subcontractors or
other agents hired by Entel under the terms of this Agreement must
adhere to the conditions contained in this paragraph, which shall be
paid by subcontractor, and Entel shall provide Triton with a copy of
said insurance. Entel shall provide Triton with evidence of such
insurance prior to commencement of work under this contract and as
otherwise reasonably requested by Triton.
G. Covenants. The parties covenant and agree to use their best efforts to
---------
cooperate with each other in the performance of their respective
obligations under the Agreement and to take no action that will
interfere with the performance by the other party of such obligations.
11. ASSIGNMENT
----------
Assignment to Third Parties. Triton may freely assign its rights and
---------------------------
obligations hereunder. Except as specifically permitted herein, Entel may
not assign or transfer any right, interest, or obligation hereunder to any
third party without the express written consent of Triton, such consent not
to be unreasonably withheld or delayed; provided, however, Entel may freely
-------- -------
assign this Agreement to any affiliate of Entel upon written notice to
Triton. Any purported assignment in violation of this Section shall be
void.
12. INDEMNIFICATION
---------------
A. Except as a result of Entel's gross negligence or willful misconduct,
Triton agrees to defend and indemnify Entel for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Entel as the result
of any act, error, omission, non-performance by negligence, or
wrongful act of Triton arising directly out of the performance of this
Agreement.
B. Except as a result of Triton's gross negligence or willful misconduct,
Entel agrees to defend and indemnify Triton for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Triton as the
result of any act, error, omission, nonperformance by negligence, or
wrongful act of Entel arising directly out of the performance of this
Agreement.
13. MISCELLANEOUS
-------------
A. Choice of Law. The Agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Pennsylvania,
excluding the conflict of law provisions thereof.
B. Notice. All notices or other communications hereunder shall be in
------
writing and shall be deemed to have been duly delivered and effective
upon receipt if personally delivered, or on mailing if mailed by
prepaid overnight express service, addressed to the following (or
other addresses as the parties hereto may designate):
6
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to Triton,
to: and
Triton PCS, Inc. Triton PCS, Inc.
Drive, Suite 125 9211 Arboretum Parkway
Malvern, PA 19355 Richmond, VA 23236
Attn: President Attn: General Manager
If to Entel,
to:
Entel Technologies, Inc.
1110 North Glebe Road, Suite 850
Arlington, VA 22201
Attn.: Chief Financial Officer
C. Entire Agreement. This Agreement constitutes the entire agreement of
----------------
the parties with respect to the subject matters addressed, and shall
supersede any and all prior negotiations, understandings, and
agreements with respect hereto.
D. Modification. This Agreement may be amended only by a written
------------
instrument executed by an officer or authorized representative of each
of the parties.
E. Binding Effect. The Agreement shall be binding upon and enforceable by
--------------
and inure to the benefit of the successors, assigns, and transferees
of the parties.
F. Further Assurance. The parties shall execute and deliver such further
-----------------
instruments and perform such further acts as may reasonably be
required to carry out the intent and purposes of this Agreement.
G. Severability. In case any term of this Agreement shall be held
------------
invalid, illegal, or unenforceable in whole or in part, neither the
validity of the remaining part of such term nor the validity of the
remaining terms of this Agreement shall in any way be affected
thereby.
H. Headings. All section and paragraph titles or captions contained in
--------
this Agreement are for convenience only and shall not be deemed part
of the text of this Agreement.
I. Pronouns. All pronouns and any variations thereof shall be deemed to
--------
refer to the masculine, feminine, neuter, singular, or plural as the
context may require.
J. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be considered an original and all of
which taken together shall constitute one and the same instrument.
K. Waiver. The failure of either party to insist upon strict performance
------
of any obligation hereunder, irrespective of the length of time for
which such failure continues, shall not be a waiver of such party's
right to demand strict compliance in the future. No consent or waiver,
express or implied, to or of any breach or default in the performance
of any obligation hereunder shall constitute a consent or waiver to or
of any other breach or default in the performance of the same or any
other obligation hereunder.
L. Confidentiality. In order to permit Entel to perform its obligations
---------------
hereunder, Triton may from time to time disclose to Entel confidential
or proprietary information of Triton ("Confidential Information").
Entel shall use all Confidential Information solely for the purpose of
performing its obligations to Triton under this Agreement, and shall
keep confidential and not disclose to any other person, other than
employees or agents of Entel who agree to be bound by an equivalent
undertaking, any Confidential Information. The foregoing restrictions
shall not apply to any Confidential Information:
7
<PAGE>
i. which is made public by Triton or which otherwise is or
hereafter becomes part of the public domain through no
wrongful act, fault, or negligence on the part of Entel;
ii. which Entel can reasonably demonstrate is already in Entel's
possession and not subject to an existing agreement of
confidentiality;
iii. which is received from a third party without restriction and
without breach of an agreement with Triton;
iv. which is independently developed by Entel as evidenced by
its records; or
v. which Entel is required to disclose pursuant to a valid
order of a court or other governmental body or any political
subdivision hereof; provided, however, that, to the extent
that it may lawfully do so, Entel shall first have given
notice to Triton and given Triton a reasonable opportunity
to interpose an objection or obtain a protective order
requiring that the Confidential Information so disclosed be
used only for the purposes for which the order was issued.
14. EFFECTIVE DATE
Notwithstanding anything herein to the contrary, Triton shall have the
right to terminate this Agreement upon written notice to Entel if Triton
has not acquired the PCS Licenses for the Service Area from AT&T provided,
--------
however, that if Triton fails to obtain such PCS Licenses for the Service
-------
Area from AT&T, then Triton shall pay to Entel all professional fees and
out-of-pocket expenses incurred by Entel, in accordance with the payment
terms under Section 4, prior to Entel's receipt of notification from Triton
of Triton's failure to obtain the PCS Licenses.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the Effective
Date.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
By: /s/ Steven R. Skinner By: /s/ John T. Vento
------------------------------- --------------------------
Name: Steven R. Skinner Name: John T. Vento
----------------------------- ------------------------
Its: President Its: President
------------------------------ -------------------------
8
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ATTACHMENT A
------------
Scope of Work
SERVICES: To enable Triton to develop, deploy, and deliver its PCS network,
Entel has been engaged to perform various Site Development Services as more
specifically described in the Attachments to this Attachment A ("Services").
Work Item Attachment
---------- ----------
Pre-zoning A-1
Pre-Design A-2
Site Selection A-3
Site Acquisition A-4
Site Survey A-5
Zoning A-6
Building Permit A-7
Phase One/NEPA
Environmental Screening A-8
Project Reporting A-9
Geotechnical Report A-10
FAA Survey A-11
Construction Management A-12
Project Management A-13
Materials Management A-14
DEFINITIONS: For purposes of this Agreement, the following words will have the
following meanings:
"Building Permit Milestone" means completing to the reasonable satisfaction of
Triton all Building Permit Services described in Attachment A-7.
"Deliverables" mean any items or work product arising from the performance of
Entel's Services under this Agreement and delivered to Entel, including
letters of intent, leases, purchase agreements, zoning authorizations,
building permits, soil, environmental,, title and site reports and studies,
drawings, status reports and similar data, as are to be provided by Entel
under this Agreement.
"PCS" Equipment means Triton's towers, antennas, and related equipment necessary
to deploy and deliver PCS from Sites in the MTA/BTA covered by this Agreement.
"RF" means Wireless Facilities, Inc.
"Construction Commencement Milestone" means completing all Phase One/NEPA
Environmental Project Reporting, Geotechnical Reports and FAA Survey services
described in Attachments A-8 through A-11.
"Construction Completion Milestone" means completing all Construction
Management, Project Management Services and Materials Management set forth in
Attachments A-12 through A-14.
"Lease Milestone" means completing all Site Selection and Site Acquisition
services set forth in Attachments A-3 through A-4.
"Site Survey Milestone" means completing all Pre-Zoning and Pre-Design services
set forth in Attachments A-1 through A-2.
"Zoning Milestone" means completing all Site Survey and Zoning Services set
forth in Attachments A-6 through A-7.
9
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Work Order Pursuant To
Microwave Relocation Services Agreement
Between Triton PCS, Inc. and Entel Technologies, Inc.
WORK ORDER NO.: 8
Triton PCS, Inc. ("Triton") hereby requests that Entel Technologies, Inc.
("Entel") provide the microwave engineering services (the "Services") set forth
below, pursuant to the Microwave Relocation Services Agreement (the "Agreement")
dated February 11, 1998, between Triton and Entel according to the following
terms:
1. BTA Assignment:
The engineering services requested in this work order involve microwave paths
identified in the spectrum sharing studies associated with Work Orders #3 and
#6. However, paths that were also identified in the spectrum sharing studies
associated with Work Order #1 are excluded from this list.
2. Assigned Services:
Entel shall perform Microwave Relocation Services Phase I, Market Relocation
Analysis for the [***] microwave paths listed on Attachment A to
this Work Order.
3. Compensation:
Triton shall compensate Entel in accordance with the pricing terms included
in the Microwave Relocation Services Agreement as listed in Attachment A.
4. Payment Schedule:
Triton shall compensate Entel in accordance with the payment schedule set
forth in Exhibit II of the Agreement.
5. Pass Through Expenses:
[***] in completing the services requested in this work order.
6. Commencement of Services:
Entel shall commence performance of the Services immediately upon full
execution of this Work Order.
7. Incorporation of Work Order:
This Work Order shall be appended to the Agreement and is incorporated
therein by reference. All of the terms and conditions of the Agreement shall
apply to the provision of Services hereunder; however, in case of conflict,
the terms of this Work Order shall govern.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
/s/ Shekhar Deshpande /s/ Mark W. Carter
- ---------------------------------- -----------------------------------------
Shekhar Deshpande Mark W. Carter
- ---------------------------------- -----------------------------------------
Print Name Print Name
VP - Engineering 4/19/99 Director - Fixed Network Eng. 4/16/99
- ---------------------------------- -----------------------------------------
Title Date Title Date
* Confidential treatment Requested
Page 1 of 1
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ATTACHMENT A-2
--------------
Pre-Design
1. Entel will identify and catalog all potential sites available to Triton from
site providers that previously leased space to an Entel client or expressed
an interest in leasing space to Entel ("Friendly Sites").
11
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ATTACHMENT A-3
--------------
Site Selection
1. RF will issue a search ring based on its preliminary design (such design will
consider Friendly Sites).
2. RF will deliver search rings to Triton, which will then issue search rings to
Entel.
3. Entel must [***] to [***]. If Entel [***].
4. Entel will identify [***] potential candidates for each search ring within
[***] after receipt of the search ring from Triton. Entel shall have an
additional [***] to identify potential candidates for additional search rings
if Triton has delivered more than [***] search rings to Entel within a
calendar week. If [***] such candidates are not available, Entel will
furnish to Triton a written explanation of Entel's reason(s) why unavailable.
5. Triton will approve or reject candidates or re-design a search ring at
Triton's option.
6. Entel will utilize necessary resources to comply with Triton's established
scheduled time lines in accordance with Section 6 of the Agreement.
7. Entel will provide search ring reports containing the following minimum
information:
A. BTA
B. Site name
C. Acquisition Agent
D. GPS coordinates
E. Site locale
F. Site address or exact location if address unavailable
G. 4 photos taken from site (photos should be taken for a 360 orientation
for a rooftop site)
H. 4 photos taken of the site
I. Name of site owner and manager and address (if applicable)
J. Lessor's name and address
K. Proposed monthly lease rate/purchase price/term
L. Physical data (overall structure height, height(s) available to mount
antennas, space available for Triton's electronic equipment, distance
for coax from antennas to equipment, tower manufacturer and type,
primary use of structure, etc.) Additional specifics will be required
as needed by Triton.
M. Presence of transmitters, receivers, or antennas visible in the area
including operating frequencies, photographs
N. Indicate if space available is/has:
. clean . 24 hrs/7-day access
. phone circuits . elevator to equipment room
. ventilation . adjacent or nearby man-made or natural
obstructions
. loading dock . transmitter shelter area - provide
drawings
. pest infestation . describe exact dimensions and locations
. air conditioning . electrical service available
. emergency power . map with street level detail showing
site location
. moisture/water . additional information to assist with
site evaluation
* Confidential Treatment Requested
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ATTACHMENT A-4
--------------
Site Acquisition
Entel shall coordinate closely all site acquisition work with any Third Party.
1. If the site is to be acquired by lease, Entel will be responsible for
securing proper execution by the site owner/landlord of the appropriate form
of lease with respect to each proposed site. Entel must [***] to [***] to
[***] and will use [***]. Entel will also use [***].
2. Due diligence with respect to title of all sites to be acquired by Triton (by
lease, purchase, or otherwise) shall be performed at the option of Triton as
follows:
a. acquire an ownership and encumbrance report ("O&E Report") from a
nationally known title insurance company satisfactory to Triton which
sets forth the same information as required for an ALTA title
insurance policy described below relating to the proposed site (to the
extent ascertainable by the title company);
b. acquire an ALTA title insurance policy on ground leases, insuring that
Triton is the owner of the leasehold estate created by the lease
covering the site in question, such policy to be issued by a
nationally recognized title insurance company acceptable to Triton and
to be in such amount and to contain such exceptions to title as are
satisfactory to Triton in Triton's sole discretion, and in this regard
the title insurance requirements to be followed by Entel with respect
to the insuring of the leasehold shall be substantially the same as
the title insurance requirements set forth in this Scope of Work for
purchase of sites below ;
c. perform or coordinate with the subcontractor or third party (`Third
Party") to ensure that all applicable due diligence tests and studies
have been performed prior to Triton executing the lease to determine
to Triton's reasonable satisfaction that the proposed site is suitable
for Triton's intended use of it, including, but not limited to:
. soil suitability and compaction testing in accordance with
Attachments A-10 and A-11with respect to ground lease sites and
vacant land sites only; and
. an asbestos survey with respect to sites where Triton's
electronic equipment will be located on or in existing
improvements constructed prior to 1980, and
. a Phase I environmental assessment with respect to ground lease
sites, switch sites, and vacant land sites.
In addition, the following tasks shall be performed and confirmed in
writing by Entel, or Entel shall coordinate with a Third Party to
perform and confirm in writing:
. legal access to the site;
. adequate utility service available to the site consistent with
specifications provided by Triton to Entel;
. necessary building permits or other required governmental
approvals relating to the construction and installation of
Triton's equipment or other improvements at the site;
. no easements, conditions, restrictions, liens, or other matters
exist of record which negatively impact Triton's ability to use
the site for its intended purposes, and that there are no
delinquent taxes or assessments;
* Confidential Treatment Requested
13
<PAGE>
ATTACHMENT A-4
--------------
Site Acquisition
(continued)
. proper zoning for Triton's intended use or whether a zoning
change or variance will be necessary;
. detailed construction drawings and plans and specifications for
all improvements to be constructed or located upon the site
obtained by Entel;
. resolutions or other appropriate authorizations or consents
pertaining to the due execution and delivery of the lease in
question by the lessor/owner of the site.
e. If the site is to be acquired by purchase, Entel shall additionally
. complete all due diligence items to Triton's reasonable
satisfaction which are conditions to Triton's purchase of a
site as set forth in a purchase agreement (which is to be
substantially in the form provided by Triton to Entel),
including, without limitation, all requirements and conditions
pertaining to title insurance, survey matters, soil testing,
environmental compliance, governmental authorizations and
approvals relating to the development of the site for Triton's
intended use of it, the availability of adequate utility
service and legal access to the site, and any other matters
permitted by the terms and provisions of a purchase agreement
to enable Triton to reasonably determine whether the site is
suitable for Triton's intended use of it;
. collect from the seller of the site for delivery to Triton all
documents, surveys, drawings, and other information pertaining
to the site which the seller is required to deliver to Triton
pursuant to the terms of a purchase agreement;
. provide preliminary closing statement figures to Triton with
respect to the purchase of the site not less than ten (10) days
prior to the projected closing date; and
. assure that all requirements of the title company with respect
to the issuance of its policy of owner's title insurance are
satisfied prior to the closing date to the extent feasible, but
if Triton completes the purchase of a site with outstanding
title requirements unsatisfied, and Entel has so advised Triton
in writing thereof, then Entel has no liability or
responsibility to Triton with respect to any such unsatisfied
requirement.
14
<PAGE>
ATTACHMENT A-5
--------------
SITE SURVEY
1. Entel will obtain and deliver to Triton an ALTA/ACSM minimum standards
survey with such additional items as may be required by Triton, certified
by a licensed surveyor, and site plan/architectural drawings required by
local zoning authorities. (Entel may subcontract this work locally.) Survey
drawings shall include, without limitation:
a. site name and number;
b. legal description of parcel, access road easement and utility
easement;
c. relationship of site parcel to adjacent property boundaries by
distance and direction;
d. site parcel and adjacent parcels by map and parcel number, by
deed book and page, and by ownership;
e. name, telephone number, and address of surveyor and office
contact;
f. the location of all matters described in recorded instruments
affecting the site if capable of being shown on a survey;
g. results of flood plain determination.
2. Entel will secure and deliver to Triton any required survey plats, mylars,
exemption plats, or other survey documents required along with any required
signatures.
15
<PAGE>
ATTACHMENT A-6
--------------
ZONING
1. Entel will prepare and submit all zoning applications and appeals with
required drawings and other related materials and it will obtain any
required zoning approval.
2. Entel will attend all required hearings and represent Triton at Triton's
request.
3. Entel will determine needed compliance with any subdivision regulations for
purchased sites.
4. Entel will involve legal counsel only in zoning situations in which Triton
agrees legal representation is warranted.
5. Entel will provide staffing, at its expense, and the necessary associated
equipment to scan photographs into a document format. If further
enhancement is required to create special presentation quality materials
for a landlord or zoning approval, Triton agrees to the use of a Third
Party at its specific approval and expense.
16
<PAGE>
ATTACHMENT A-7
--------------
BUILDING PERMIT
1. Entel shall apply for, coordinate/track, and obtain building permit.
17
<PAGE>
ATTACHMENT A-8
--------------
PHASE ONE/NEPA ENVIRONMENTAL SCREENING
Within a reasonable period after Triton has approved a primary site candidate
for a search ring:
1. Entel agrees that within its scope of work shall be included a
comprehensive investigation and completion of NEPA checklist for all actual
or potential federal, state, local, or other jurisdictional environmental
requirements, including, but not limited to, the SARA Title II and Federal
Communications Commission regulations regarding Environmental Assessments
(e.g., FCC Rules on Environmental Impact, 47 C.F.R. 1.11307) referred to as
"Environmental Screening." Triton shall complete, execute, and submit a
fully executed original NEPA Checklist for each site. The NEPA Checklist
shall be in the form acceptable to Triton and shall include, without
limitation, whether a proposed site:
a is located in an officially designated wilderness area;
b is located in a designated wilderness preserve;
c may affect threatened or endangered species or their habitats;
d may affect sites listed on the National Register of Historic Places;
e may affect Indian religious sites;
f is located in a flood plain;
g may involve a significant change in surface features;
h whether an antenna tower to be equipped with high intensity white light
would be located in a residential neighborhood.
2. Entel agrees that it shall engage an environmental consultant to perform a
Phase One Environmental Assessment ("Phase One") in accordance with Triton
standards. The results of such assessment shall be delivered to Triton in
writing.
3. At Triton's option, Entel will coordinate activities required to complete
the Environmental Screening requirement on radio frequency emissions to
determine whether the proposed facilities are located where an operator or
transmitter would cause human exposure to levels of radio frequency
radiation in excess of the limits specified in Subsections 1.1310 and
2.1093, 47 C.F.R. (Applications to the FCC for construction permits,
licenses to transmit or renewals thereof, equipment authorizations, or
modifications in existing facilities must contain a statement confirming
compliance with the radio frequency limits unless the facility, operation,
or transmitter is categorically excluded as discussed in Subsection 1.1307.
Technical information showing the basis for this statement must be
submitted to the FCC upon request.) This particular Environmental Screening
requirement shall be sufficient to uncover the impact or potential impact
of any such jurisdictional requirements, including, but not limited to,
regulatory filings, hearings, approvals and/or fees, site sampling,
testing, or relocation of the site requirements.
4. Entel agrees that the results of any and all Environmental Screening and
Phase One performed Third Party shall be reported to Triton. Entel
acknowledges that the timely reporting of such information may influence
the site acquisition decision, and Entel shall pro-actively work in good
faith with Triton to arrive at the optimal site acquisition decision in
light of such information. Entel agrees to seek indemnification for Triton
from the Third Party for any costs, including reasonable attorneys' fees
associated with any environmental remediation, fine, or other penalty
imposed on Triton as the direct or indirect result of Third Party's failure
to detect such impact or requirement as described in this Attachment A-8.
Should Entel not obtain this indemnification for Triton in the Entel/Third
Party agreement, Entel agrees to indemnify Triton for any costs, including
reasonable attorneys' fees associated with any environmental remediation,
fine, or other penalty imposed on Triton as the direct or indirect result
of Third Party's failure to detect such impact or requirement as described
in this Agreement.
18
<PAGE>
Attachment A-9
--------------
Project Reporting
1. Entel will provide Triton with weekly reports showing project status. This
status report will be put into a format acceptable to Triton. Report information
will be transmitted to Triton via electronic means. Each status report must
include all the following items. Next to each task must be included the date it
was completed or the expected date of completion.
a BTA name
b Cell name
c Grid ID
d Site ID
e Acquisition received search ring
f Search area report delivered to RF
g Site approved by RF, Entel & Triton
h Draft lease/option delivered to Triton
i Legal review of lease/option complete
j Lease execution
k Lease memo recorded
l Loading study complete
m Survey and site plan complete
n Soil borings complete
o Flood way investigation complete
P Lien and title insurance complete
q Phase I NEPA checklist complete
r Zoning approved
s Building permit obtained
t Property closed
u Site released to construction
v FAA approval
w Construction started
x Construction completed
y Summary report of number of sites at each above stage by
completion
2. Additional items to report may be added to the above list as reasonably
determined necessary by Triton.
19
<PAGE>
Attachment A-10
---------------
1. Entel will use Third Party to obtain geotechnical report for applicable
land sites. Geotechnical report shall be completed in accordance with Triton
standards and laws of any applicable jurisdiction.
20
<PAGE>
Attachment A-11
---------------
1. FAA Surveys are to be coordinated and tracked by RF, except as otherwise
specified by Triton.
<PAGE>
Attachment A-12
---------------
Construction Management
y) Pre-Construction Planning
In support of the pre-construction planning requirements, Entel will
complete the following activities:
10. Receive in a recordable form a Memorandum of Lease and any
Subordination and Non-Disturbance Agreements for signature by
applicable parties, substantially in forms provided to Entel by
Triton.
20. Conduct construction feasibility assessments with all applicable
subcontractors to assess construction costs, identify potential
problems, and develop the most efficient design for each of Triton's
sites. Coordinate the production and review of all construction
drawings to ensure compliance with Triton's specifications and
requirements.
30. Coordinate and manage new service requests, field surveys, and the
installation of power and telephone service to ensure that new utility
service is supplied on time and in compliance with Triton's
specifications. Act as a liaison with local building jurisdictions to
ensure that construction permits are expedited and that questions are
answered or additional information is provided as required.
40. Qualify and select Construction Subcontractors. Develop and deliver
request for quotation packages and systematically evaluate the
responses. Each subcontractor is required to participate in a thorough
qualification process during which Entel will ensure that each is
fully insured and has obtained all required local, state, and federal
licenses and certifications. Review safety programs and records,
references, and the financial viability of all subcontractors.
Coordinate subcontractor's selection activities with Triton.
50 At Triton's request and additional expense (i) procure materials and
supplies from wireless industry suppliers and manufacturer and (ii)
implement a customized inventory management system, designed to
effectively control material orders and their distribution.
60. Develop a Master Construction Plan that includes a detailed schedule
for each of Triton's sites. Entel shall continuously monitor and
update to ensure compliance with project milestones.
6. Construction Execution
In support of construction execution, Entel will:
10. Conduct pre-construction meetings with subcontractors, property
managers, and utility service providers to ensure that construction
objectives, property owner concerns, and site-specific requirements
are understood and agreed upon by all parties involved in the buildout
of Triton's network.
20. Provide on-site supervision of all construction activities to minimize
disruption to property owners and to ensure adherence to construction
specifications and standards, and complete construction in compliance
with Triton's construction schedule.
2. Quality Assurance
As part of its quality assurance services, Entel will:
1. Conduct a thorough quality assurance inspection upon completion of
each site, ensuring that each of Triton's punch list items is resolved
within 48 hours.
2. Coordinate and attend site inspections with all local building
department representatives.
3. Prepare detailed as-built drawings that accurately reflect the
installation at each site.
4. Close out each site by compiling and providing Triton with a
comprehensive site completion package. This package will create an
historical record of everything related to the construction of the
site and includes, without limitation, site identification data,
construction permit documentation, material reconciliation
construction test results, site photographs, and as-built drawings.
22
<PAGE>
Attachment A-13
---------------
Project Management
Entel will provide the following services:
1. Develop and implement a thorough deployment plan which tracks all
activities associated with site acquisition and construction management for
each site. The deployment plan will clearly articulate schedule
dependencies and critical path elements, identify the allocation of
resources, and update regularly to reflect the actual deployment.
2. Implement a quality assurance program which ensures that all activities are
performed to the highest quality standards.
3. Utilize a comprehensive cost accounting system which will include, at a
minimum, procedures for conducting financial transactions, financial
tracking and management, and comprehensive financial reporting.
3. Implement comprehensive reporting mechanisms so that detailed site progress
is tracked on a daily basis and complete reports are provided when required
by Triton.
5. Implement a comprehensive filing system which ensures that all relevant
site information is organized and available. Utilize electronic means
whenever possible.
6. Manage and coordinate interactions between site acquisition and site
construction. Ensure that both formal and informal communications between
these Milestone Services are effective and in the best interests of Triton.
Manage and coordinate interactions among site acquisition and construction
management and other disciplines involved in the system deployment (e.g.,
RF engineering, network engineering, marketing). Ensure that both formal
and informal communications among these disciplines are effective and in
the interest of Triton.
23
<PAGE>
ATTACHMENT A-14
---------------
MATERIALS MANAGEMENT
Entel will provide the following services:
1. Provide Procurement Coordinator(s) at the Triton Project office that will be
responsible for all material take-offs, ordering, tracking, coordination of
deliveries, and processing of invoices for all material related to the
construction of the sites. Triton will order the radio equipment.
2. Use primary vendor(s), selected by Triton, to order all standard material
for the construction of the sites.
3. Obtain no less than [***] bids from manufacturers of custom and additional
items such as electrical, masonry and roofing materials and miscellaneous
hardware.
4. Develop detailed bills of material for each site.
5. Present the bills of materials to Triton for review, approval and issuance
of a purchase order.
6. Place the order with the supplier using the purchase order generated by
Triton.
7. Track the status of the order using both the suppliers material management
system and internal project scheduling.
8. Coordinate the time and place for the delivery of material among all parties
and schedule appropriate personnel and equipment needed to accept the
shipment.
9. Manage back-up material stock, provided by the vendor at a location
designated by triton.
10. Ensure that adequate security measures are taken to prevent the loss of
materials once they are delivered to the site.
11. Accept and verify the shipments by comparing the original order and the
packing slip.
12. Accept, compile and maintain all packing slips (or other form of
verification), invoices and other related documents.
13. Review and approve all material invoices for submittal to triton in site
invoice packages that include the invoice, a copy of the purchase order and
packing slips or other form of verification for final approval and payment
by Triton.
14. Provide in the Completed Site Package a form detailing the types and
quantities of materials used on the site.
* Confidential Treatment Requested
24
<PAGE>
Attachment B
------------
to the
------
Site Development Services Agreement
-----------------------------------
Between
-------
TRITON PCS, INC. & ENTEL TECHNOLOGIES, INC.
-------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
DATE
SEARCH Cell Id # Estimated Milestone Completion Dates
RING For Site Development Services
ISSUED Cell Name --------------------------------------------------------------------------------
Site ZONING BUILDING CONSTRUCTION CONSTRUCTION
Survey Lease PERMIT START COMPLETION
<S> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
42 TOTAL SITES
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
AGREED & ACCEPTED:
Triton PCS, Inc.
By: ____________________________________
Its: ___________________________________
Date: ___________________________________
25
<PAGE>
Attachment B-1
--------------
Critical Dependency Schedule
Recognizing the benefits to both parties that Entel satisfy the Site Development
Services Schedule of Attachment B, Triton and Entel agree to exert all
commercially reasonable efforts to meet the Critical Dependency Schedule set
forth below. Notwithstanding the above, Entel agrees that the Critical
Dependency Schedule is non-binding to Triton and its purpose is to illustrate
ideal response time. Entel further agrees that any failure to meet the Site
Development Services Schedule of Attachment B cannot be overlooked simply by
Triton's failure to meet the Critical Dependency Schedule, as set forth in this
Attachment B-1, unless Triton's failure is frequent and significantly
delinquent.
For purposes of this Critical Dependency Schedule, "Site agreement" means an
option to lease or purchase a Site from a site Owner, or a lease for a Site from
a Site Owner entitling Triton to accept such lease under the terms and
conditions negotiated and approved by Triton and/or to terminate such lease
under the termination provisions of such lease.
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
a) Triton to provide Entel with Triton's [***] after Entel completes Pre-Design in section 2
preliminary acceptance or rejection of Friendly of Scope of Work; if more than [***] friendly Sites
Sites as identified by Entel under Attachment A-2 are identified to Triton by Entel in any [***]
period, Triton shall have an additional [***] to
provide Entel with Triton's preliminary approval or
rejection of each friendly Site exceeding [***],
and [***] additional days for any exceeding [***]
in such period.
b) Triton to provide Entel with Triton's [***] after delivery of Site information to Triton
preliminary acceptance or rejection of search by Entel ([***] if Triton considers it appropriate
ring Sites identified by Entel under Attachment to radio-test the Site, with such [***] days to
A-2 begin after access to Site is available); if more
than [***] friendly Sites are identified to Triton
by Entel in any [***] period, Triton shall have an
additional [***] days to provide Entel with
Triton's preliminary approval or rejection of each
friendly Site exceeding [***], and [***] additional
days for any exceeding [***] in such period.
c) Triton to redesign search ring or area where [***] days after request to do so by Entel.
no suitable Sites found (unless redesign is
impracticable, in which case Triton shall so
advise Entel that no redesign is necessary)
</TABLE>
* Confidential Treatment Requested
26
<PAGE>
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
d) As each Site is preliminary accepted by [***] days after receipt of site agreement terms of
Triton, Triton to communicate to Entel its Site Owner (if more than [***] site agreements are
(Triton's) comments/revisions, if any, to Site received by Triton in any [***]-day period, Triton
Owner's conditions for site agreement(s) for Site shall have an additional [***] days to communicate
its comments to Entel for each site agreement
received in such period exceeding [***], and [***]
additional days for any exceeding [***] in such
period).
e) * As to site agreements finally satisfactory [***]days after submission to Triton by Entel of
to Triton and Site Owner, Triton to execute site site agreements (for each site agreement requiring
agreements (with intention of parties that Entel an initial or upfront payment exceeding [***],
will then commence in full its due diligent Triton has a total of [***] days to obtain its
services as set forth in Attachments A-1 through execution).
A-8, or sooner if requested by Triton) and
Triton may also perform due diligence to
ascertain Site feasibility, etc. and at any time
Triton determines Site is not feasible, Triton
may terminate any such site agreement, and such
site will not be deemed an acquired Site.
f) * Triton to give Entel all of Triton's [***] days after submission to Triton by Entel of
objections/comments on title report for Site title report (if more than [***] title reports are
received by Triton in any [***]day period, Triton
shall have an additional [***] days to give
objections/comments on each report exceeding [***]).
g) * Triton to give Entel documents needed to [***] days after Entel provides Triton with
cure title objections for Site (or notice that objection.
no documents are satisfactory to Triton for
curing such objections)
</TABLE>
* Confidential Treatment Requested
27
<PAGE>
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
h) Triton to give Entel approval or disapproval [***] days (as to subcontractors and Triton by
(and reasons for purchase orders/bids submitted Entel upon or within [***] days after execution by
to disapproval) of subcontractors of Entel and Triton of this Agreement), and [***] days (as to
purchase orders or bids obtained from time to subcontractors and purchase orders/bids submitted
time by Entel to Triton by Entel anytime [***] or more days after
Triton's execution).
i) i. Triton shall provide Entel all [***] days after initial term commences.
"General Forms" defined and listed on
Attachment G hereto
j) Triton shall provide Entel with description [***] days after initial term commences.
of not less than 80% of Triton's desired initial
MTA coverage objective
k) Triton shall provide Entel with a description [***] days after initial term commences.
of the balance of Triton's desired initial MTA
coverage objective
l) Triton shall provide Entel with general [***] days after execution of this Agreement.
physical equipment specifications
m) Triton to provide to Entel all pertinent Site [***] days after Entel's request for such
building permit information involving vendors information, and provided Triton has determined
that Entel does not have direct control over such Site is practical for Triton's effective
delivery of PCS from such site. practical for
Triton's effective delivery of PCS from such Site.
The foregoing Time Frame(s) is on a [***] for
[***].
</TABLE>
* Confidential Treatment Requested
28
<PAGE>
Attachment C
------------
Triton Standard Hourly Rates
Position Hourly Rate
- -------- -----------
Corporate Staff
- ---------------
Chief Executive Officer $ [***]
President $ [***]
Account Manager $ [***]
Program Management Specialist $ [***]
Office Manager $ [***]
Account Clerk $ [***]
Site Acquisition Staff
- ----------------------
Project Manager $ [***]
Site Acquisition Team Leader $ [***]
Site Acquisition Specialist $ [***]
Site Acquisition Project Coordinator $ [***]
Zoning Manager $ [***]
Legal Assistant $ [***]
Database Administrator $ [***]
SA Administrative Assistant $ [***]
Construction Staff
- ------------------
Construction Manager $ [***]
Construction Supervisor $ [***]
Construction Project Coordinator $ [***]
Utility Permit Coordinator $ [***]
CM Administrative Assistant $ [***]
* Confidential Treatment Requested
29
<PAGE>
EXHIBIT 10.28
Confidential treatment requested
under 17 C.F.R (s)(s) 200.80(b)(4)
200.83 and 230.406
WFI, Inc. SALES AGREEMENT FOR PRODUCTS & SERVICES
- --------------------------------------------------------------------------------
Sales Agreement NO. #001
DATE: April 19, 1999
Integrated Ventures, LLC.
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108
This Sales Agreement, effective 4/20/99, is between Integrated Ventures, LLC, a
California Corporation ("IV"), and WFI ("Client"). This order, in conjunction
with the general agreement named above, sets forth the terms and conditions for
the following work as described below
I. Description of Product and Services:
A. Product:
PRODUCT DESCRIPTION:
-------------------
The Integrated Venture's Project Tracking System is a software
tool designed to help top level managers build wireless and other
telecommunications networks easier and faster and to manage those
networks on into the future. The Project Tracking System is made
up of two (2) different components, the Project Tracker, and the
Cost Management System. Each of the components can be integrated
for data sharing or used independently.
The Project Tracker provides:
. Project Management Tools
. Task Scheduling
. Core Site Data Storage
. Project Reporting
This product offers the manager weekly reports that will help by
tracking and monitoring all of the critical variables and
milestones involved with the deployment of a network. The program
allows a manager to monitor the deployment of multiple market
areas. It allows you to generate, analyze and create reports with
a minimum amount of work. The scheduling feature makes it easy to
plan and manage projects by giving you the ability to forecast
the start and finish dates of key milestones. It also provides
the ability to report on the performance of specific vendors. By
tracking the duration of specific tasks, you are able to identify
those vendors that are not operating at optimum performance.
The Cost Management System provides:
. Invoice Authorization
. Electronic Billing
. Invoice Tracking
. Budget Development and Tracking
. Cost Reporting
This product provides a means for tracking project costs. It
allows the user to authorize project costs based on the actual
progress and milestone completion. It automates the billing
process to reduce the amount of time required to manage the
multiple invoices and data entry required to maintain an accurate
record of project costs. It also allows for the Project Team to
develop budgets based on company general ledger codes and track
those budgets to actual expenditures.
- --------------------------------------------------------------------------------
Integrated Ventures, LLC. - Confidential Page 1 04/20/99
<PAGE>
WFI, Inc. SALES AGREEMENT FOR PRODUCTS & SERVICES
- --------------------------------------------------------------------------------
B. Product Service with Sales:
1. Installation, Setup and Training - Phase I: Integrated Ventures
will implement the Project Tracker System for one San Diego based
Wireless Network Deployment project that WFI is undertaking. WFI is
required to assign a resource throughout this process to work with
the Integrated Ventures project manager. It is WFI's responsibility
to deploy it to the other projects.
a) Project Plan Definition
b) Software Load:(Server and General | Project Based or
Internally)
c) Step Definition
d) Team Integration
e) Training
f) Support for 30 days beyond training
** WFI Project Implementation expenses not included
2. Enterprise conversion - Phase II
a) Project Plan Definition
b) Convert to Web Platform
c) Deliver Production System/Platform
d) Support for 30 days beyond delivery
* Confidential treatment requested
- --------------------------------------------------------------------------------
Integrated Ventures, LLC. - Confidential Page 2 04/20/99
<PAGE>
WFI, Inc. SALES AGREEMENT FOR PRODUCTS & SERVICES
- --------------------------------------------------------------------------------
C. Stipulations and Conditions
1. If the IV Project Tracker is implemented at a WFI client site
then expenses will be reimbursed by WFI as per the expense
matrix below.
2. WFI will assign a project manager at the beginning of phase I
that will be trained and assume the responsibility of the
tracker once the Phase I is completed.
3. Once the WFI Tracker representative is trained in San Diego, it
is the responsibility of WFI to support the field projects.
This includes but is not limited to upgrades, maintenance,
revisions and customer support.
4. The existing baseline will be frozen at the date the contract
is executed. This frozen baseline will then be converted to a
World Wide Web accessible system.
5. Sale of IV Project Tracker(C) as described in Section 1 A for
telecommunications industry application only.
6. IV Project Tracker(C) Telecommunications application code
becomes property of WFI for any and all telecommunications
industry clients.
7. IV Project Tracker(C) frozen baseline remains the property of
Integrated Ventures, LLC.
8. Integrated Ventures, LLC, agrees as a part of this sale not to
sell, or reproduce code in any form or fashion within the
telecommunications industry.
9. WFI and Integrated Ventures, LLC agree and understand that IV
Project Tracker(C) baseline may be modified, sold, developed,
licensed and used by Integrated Ventures, LLC in all other non-
telecommunications industries.
10. WFI understands that Integrated Ventures, LLC will continue to
service all current and preexisting IV Project Tracker(C)
clients and a list of such clients will be provided. All
current and preexisting clients have been mutually agreed as
described in attachment 3.
11. Integrated Ventures, LLC and Reliant Ventures, Inc. retain the
right to continue and complete IV Project Tracker(C) services
and sales to current and preexisting clients. (See Attachment
3) 12. Reliant Ventures, Inc. will refer WFI to current
telecommunications clients for network development and
maintenance project management services as appropriate.
13. WFI will refer Reliant Ventures, Inc. and Integrated Ventures,
LLC to current telecommunications management for executive
management consulting and executive management placements,
strategic information technology consulting, Oracle database,
tools and application sales and technology consulting services
as appropriate.
14. WFI agrees to purchase Oracle exclusively from Integrated
Ventures, LLC provided pricing is competitive.
15. Integrated Ventures, LLC will transfer the Property Management
Module to WFI if the IT in a Box contract is signed for a
minimum of a 1 year period, with a start date not later than 30
days from the date of this executed agreement, with the option
for renewals for three years. If the contract is canceled at
any point WFI agrees to pay Integrated Ventures, LLC. $[***].00
for the
* Confidential treatment requested
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Property Management Module. Integrated Ventures will not
support the product. Stipulations 1 through 11 of this section
of this agreement apply to the Property Management Module.
16. It has been communicated to WFI that a detailed specification
exists for the Cost Module. A formal detailed specification for
the Project Tracker does not exist, however Integrated
Ventures, LLC will provide all Project Tracker specification
documents on file within the directory structure on the
delivered media of the project tracker.
17. Integrated Ventures will provide a reasonable update to the
project tracker end user documentation. Documentation will be
provided for the web version.
II. Schedule of Sale and Services:
- -------------------------------------------------------------------------------
DELIVERABLE DURATION (DAYS)
- -------------------------------------------------------------------------------
1. Installation, Setup and Training - Phase I 30 Days from
Signature
- -------------------------------------------------------------------------------
2. Enterprise/Web Conversion - Phase II 90 days
- -------------------------------------------------------------------------------
The duration of the total project is will be determined upon commencement of
signed Sales Agreement. A schedule will be maintained with the client to monitor
and maintain the deliverables matrix.
- --------------------------------------------------------------------------------
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Compensation:
FIXED FEE
- --------------------------------------------------------------------------------
Fees
- --------------------------------------------------------------------------------
Integrated Ventures Project Tracker(C) Wireless Application
Project Tracker Runtime
Source Code for All Modules
Custom MS Project Library
$[***]
- --------------------------------------------------------------------------------
1. Installation, Setup and Training - Phase I
$[***]
- --------------------------------------------------------------------------------
2. Enterprise conversion - Phase II
$[***]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Sales Tax $[***]
- --------------------------------------------------------------------------------
TOTAL FEES: PRODUCTS AND SERVICES (Including Tax) $[***]
- --------------------------------------------------------------------------------
2 Payment Schedule
- --------------------------------------------------------------------------------
Due at commencement of Sales Agreement and delivery of
CDROM media. $[***]
- --------------------------------------------------------------------------------
Mobilization Fee - Phase I
$[***]
- --------------------------------------------------------------------------------
Due upon completion of Deliverables 1 of the Schedule of Services.
$[***]
- --------------------------------------------------------------------------------
Mobilization Fee - Phase II
$[***]
- --------------------------------------------------------------------------------
Due upon 50% completion of Deliverables 2 of the Schedule of
Services. $[***]
- --------------------------------------------------------------------------------
Due upon 75 % completion of Deliverables 2 of the Schedule of
Services $[***]
- --------------------------------------------------------------------------------
Due upon 100% completion of Deliverables 2 of the Schedule of
Services. $[***]
- --------------------------------------------------------------------------------
Taxes due at commencement of Sales Agreement: $[***]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Integrated Ventures, LLC. - Confidential Page 5 04/20/99
* Confidential treatment requested
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IV. Invoices shall be sent to:
Client Name: WFI
Address:
V. This does not supersede the Notices Section in the Agreement, but for day
to day operational matters, contact:
For Integrated Ventures: Chris Palmer For Client:__________________
------------
Phone Number: (619) 874-7187 Phone Number:_________________
--------------
FAX Number: (619) 874-7189 FAX Number:___________________
--------------
VI. Is Client reimbursing Integrated Ventures for Reimbursable Expenses? YES
*If or when yes, check the types of expenses to be reimbursed:
x Airfare: As required with written approval from Client
-------
x Ground Transportation (taxis, tolls, parking fees, etc.)
-------
x Rental/Lease Vehicle
-------
x Lodging and meals
-------
x Telephone
-------
x Fax; Long Distance, Postage, Supplies
-------
In Witness Whereof, the parties hereto have caused this Sales Agreement to be
executed by their duly authorized representatives:
INTEGRATED VENTURES, LLC WFI
------------------------ ---
Chris Palmer, President Masood Tayebi, President
----------------------- -------------------------
Name/Title Name/Title
/s/ Chris Palmer /s/ Masood Tayebi
----------------------- -------------------------
(Print Name) (Print Name)
4/20/99 4/20/99
----------------------- -------------------------
(Date) (Date)
- --------------------------------------------------------------------------------
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Attachment 1
PROJECT PLAN
WEB ENTERPRISE DEVELOPMENT PLAN
1. INTRODUCTION
Project Overview
This document will describe the conversion of the Integrated Venture's Project
Tracker and Cost Tracker software, to an Internet-based, multi-tiered enterprise
system running on the World Wide Web and using an SQL database as the data
store. Although the current Tracker has been used successfully in several
cellular/PCS build-out's, the move to an enterprise-wide system using the
Internet for communications is the next logical step.
The Tracker has recently undergone an extensive re-engineering effort to
productize the application. Productizing means that the program logic and
database have been separated from the specific terminology and field values that
are specific to each project. Simply put, this means a single code base can be
used to satisfy many clients with no programming changes. Each new client
tailors the system to the way they use it and no custom programming is required.
This added flexibility was a necessary step before the conversion to the Web
version and will simplify the process. The current database design, with some
minor changes, will be directly portable to a more robust SQL database. The
complex modules, such as the Scheduling Engine, have been carved out so they
will be portable to objects running on the server. In short, the effort to re-
engineer Project Tracker for the Web will require no fundamental conceptual
redesign, only a porting to the unique environment of the Web, a task that is
extensive already.
1.2 Assumptions
This document assumes that the initial port to Web technology will add no new
functionality or feature to the system, other than those inherently required by
this change. Although it is tempting to add many new features (some of which
will be discussed later), it is recommended that the initial port keep the same
feature set to minimize budgetary risks.
It must also be kept in mind that this reengineering will require a significant
detail design phase in which some of the proposed methods or timeframes may
change. Like many complex processes, software development projects contain many
tradeoff's that must be ultimately be decided by the customer. A detail design
will help identify those tradeoff's up-front and not allow them to appear during
the costly construction phase. A good design will help ensure the end product
meets the business goals and needs of the customer, not those of the developers.
1.3 System Background
Project Tracker is designed to manage the process of building a cellular and PCS
telecommunication network. The defining attribute of this process is the large
number of sub-projects, potential and final building site in this case, that
have very similar tasks. Some of the features include:
. Providing a data repository for search rings, candidate sites, and schedule
. Providing a common framework measuring project progress and success
. Act as a user-friendly front end to the scheduling engine of Microsoft Project
. Managing all current tasks and projecting future task completion
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. Site level budgeting and cost analysis
. Electronic vendor invoice acceptance tied to cost structure and budgets
. High level corporate reporting
. Easy to use, sophisticated detail reporting
. Complete user control on setup, lookup tables, and tasks
The current Tracker application is written in Microsoft Access 97 and uses the
Microsoft JET Database Engine. The JET Engine is the native database to Access
and is in the `desktop' database class. In addition, a third party program,
Flipper Graphs, is used to create the charts and graphs.
Tracker is designed to run over a Local Area Network at each branch office and
contains an export function to move the data to a corporate site. The corporate
version imports the data from branch offices and can view data within or across
the markets. While this design works well on a LAN, moving it to a Wide Area
Network would cause excessive overhead and slow the application down
dramatically.
1.4 General Benefits of Using the Web
Moving any application to the Web can have many benefits:
1. All data is centrally stored and managed by the Vendor.
2. New clients can be put online immediately. No cumbersome software
installation process is required at the client sites. This will be particularly
import for international clients.
3. The sales process is simplified by not requiring the client to install and
support expensive database hardware and software. Web software can be viewed by
any platform having a compatible browser.
4. The vendor realizes economies of scale in the hardware and software
investment by running many clients on a single system.
5. Technical support is greatly simplified as all data and programs for all
clients reside in a single location.
6. Users are able to easily access information from any location all that is
required is an Internet connection and browser.
7. Upgrades are streamlined as all changes are done in-house and can be
slip streamed into production systems with a minimum of interruption.
1.5 Specific Benefits of Having Project Tracker on the Web
1. Telecom projects tend to be geographically dispersed with branch offices
separate from the corporate office. Centralizing the data allows for each office
to manage their own data and schedules while providing real-time roll-up and
system-wide information for the corporate office.
2. Telecom projects tend to be transient in nature and an investment in
expensive server equipment and database software could be a barrier to sales.
Providing immediate `plug and play' functionality removes a significant barrier
to sales.
3. Batching large numbers of schedules can be resource intensive and tie up
users machines in a local are network. A Web design would centralize those
functions at the server and allow for unattended batching at predetermined
intervals.
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- --------------------------------------------------------------------------------
4. Electronic invoicing is a natural fit for the Web. Vendors can enter site
specific charges directly to the Web without having to use a complex
import/export routine.
5. Corporate data will be real-time. Instead of an import at regular intervals,
corporate user's can view the live data and make decisions with up-to-the-minute
information.
2 PROJECT ORGANIZATION
2.1 Staffing Model
Developing web-based software requires software engineers with a variety of
backgrounds and skills. Developing software for the Web is inherently different
than standard Windows software in several respects. First, the component parts
of the system, user interface, database, and program business logic are distinct
disciplines often requiring different staff members. Some staff members are not
required for the entire project but may participate for a percentage of the
time.
User Interface
- --------------
HTML programmers familiar with the intricacies and challenges of a web
application create the user interface. User interface programming tools are much
more limited, thus more difficult to program, than standard Windows software.
Often, this person contributes to the overall look, feel, and flow of the
system. In addition, the Web is a very graphic medium and typically requires
someone familiar with a graphics program, such as Adobe Photoshop. It may also
require the services graphic artist to design icons and logo's.
Database
- --------
Because the database is a separate layer from the program logic, a specialist in
database creation and programming is required. Data access routines are moved to
the database to ensure optimal performance. The database programmer works
closely with the business logic programmer.
Program Logic
- -------------
A programmer is required to create the business objects that act as glue between
the user interface and the database. The business objects include data entry
validation routines, Active Server Scripting routines, and specialty modules
like the Project Scheduling module. This layer is critical in a Web application
because the user interface, created in HTML, can only contain the most
rudimentary logic.
Project Manager
- ---------------
Even more so than standard software, a Project Manager is required to oversee
the process of tying the layers outlines above together. A good application
starts with a strong design and incorporates the objectives and business
practices of the organization. The design is then translated into a working
program with the oversight of the Project Manager. The Project Manager also acts
as the go-between for the programming staff and the customer.
Web Master
- ----------
A Web Master will be required for a small amount of time to manage the
directories and security required for a Web application. Project Tracker for the
Web will require password protection and all users must have explicit access via
an Access Control List (ACL) managed at the Web server location.
2.2 General Task Plan
The steps required for creation of the Web version are as follows:
- --------------------------------------------------------------------------------
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Detail Design
- -------------
Participants: Customer, Project Manager, Lead Programmer
Deliverable: Requirements Analysis and Detail Design Document
Percentage Time of Overall Project: 20%
This step involves meeting with the customer to determine general goals and
requirements specific to the organization. Design and programming decisions
involve trade-off between many factors. This initial design overview will help
guide many of these decisions.
After these initial meetings, there will be enough information for a basic
requirement document to be created. This will outline the general strategy and a
crude resource requirement & timeline analysis. After presenting and refining
the requirements document, the project manager and lead programmer will create a
detail design document outlining the system flows, screens, tables and routines
in a concrete fashion. Many screens will be prototyped so the customer can
provide feedback on look and feel.
The Design Document will go through several iterations and refinements and will
ultimately result in a much finer resource and timeline analysis. If successful,
the Design document will provide a concrete look at what the final product will
look like.
Construction Phase
- ------------------
Participants: Project Manager, All Programmers
Deliverable: Alpha Release
Percentage Time of Overall Project: 45%
This phase is the actual programming involved in bring the product to life. The
Detailed Design document will guide the daily tasks and the Project Manager will
track progress against the initial schedule. Any schedule deviations will be
reported to the customer immediately and the schedule readjusted to reflect the
delay.
During this phase, it is important for the Project Manager to meet with the
customer on a regular basis to display progress and receive feedback. Often
during this phase, the client proposes changes and additions to project and it
is the Project Manager's job to analyze the request and communicate the impact
on the schedule.
During the construction phase, the Project Manager designs a test plan for each
module and does unit testing according to the plan. Modules will be tested and
not considered complete until no Type 1 (critical, apparent) bugs can be found.
Unit Integration and Testing
- ----------------------------
Participants: Customer, Project Manager, All Programmers
Deliverable: Beta Release
Percentage Time of Overall Project: 10%
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During this phase, individual modules are combined to create a working system.
The customer participates in the testing at this point to provide feedback about
system performance how meeting of expectations.
During this phase, the Project Manager creates the comprehensive test plan and
runs multiple iterations until no Type 1 bugs can be found.
Beta Testing
- ------------
Participants: Customer, Client, Project Manager, All Programmers
Deliverable: Version 1.0
Percentage Time of Overall Project: 20%
This important phase involves rolling the product out to a customer willing to
use the system and provide valuable feedback about performance and results. This
phase takes the application out of the laboratory and into the real world, where
the development staff can receive direct feedback about how the product is used
in the field. It is critical to line up a willing Beta client in advance that
will spend the necessary time to test and provide feedback. The goal of this
phase is to reconfigure any cumbersome or incorrectly designed modules, and
remove any Type 2 (apparent) and Type 3 (multiple interaction) bugs.
Project Post Mortem
- -------------------
Participants: Customer, Project Manager
Deliverable: Final Documents
Percentage Time of Overall Project: 5%
2.3 Specific Tasks and Issues
Moving Project Tracker to the Web will necessitate changing how the overall
application works. Below is a list of known changes that will be required.
. Database Upsizing
The current Access database must be moved to an SQL Enterprise database. This
task is made easier by the fact that the current database design is about 90%
sufficient for the conversion already. The final 10% has to do with adding keys
and indexes to allow for multiple clients sharing a single database and
segmenting all data retrieval to only return client specific information. A
Microsoft tool to upsize the current structures to Oracle or SQL Server
simplifies the physical task of moving the database structures to an SQL
database.
. Data Retrieval Routines
Must data retrieval routines will be converted from Access/VB code and Access
views to SQL Views and Stored Procedures. This will increase data throughput and
allow for a clean separation between client (browser in this case) and database
server. Separating client and server allows for maximum flexibility in future
development. In addition, many if these data requests will be moved a Web Server
data middle ware package like Active Server Pages or an equivalent.
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. Individual Screen Design
Each screen must be redesigned and re-coded to fit the Web/browser model of
database access. HTML, the language of Web user interface development, is
somewhat rudimentary compared to the Windows environment. While this simplicity
has proven a strength for speed and cross platform compatibility, it poses
specific challenges for developers. Many data access and entry tools are not
available in a pure HTML environment. For example the data grid, a spreadsheet
like representation of multiple rows of data, can only be approximated in a pure
HTML environment. These issues will be identified and dealt with in the design
phase of the project.
. Data Validation Routines
These routines are embedded in the current Access code to ensure data integrity.
In a Web environment, these routines will be re-coded as objects and run on the
Web Server as server side validation routines. This is part of the middle tier
in a Web environment.
. Module Routines
Similar to data validation, complex modules, such as Project Scheduling, will be
moved out of the front end and into the middle tier and run as server side
objects.
. Corporate Reporting Conversion
The corporate reports will be redesigned to run as a server side object. HTML
report access screens must be created for executives to request the reports,
then server objects will create the graphs and drill-down hot zones for the
returned Web page.
- --------------------------------------------------------------------------------
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ATTACHMENT II
This attachment reflects the initial design elements put into the Integrated
Ventures Project Tracker
WHAT THE PROJECT TRACKER IS / DEFINITION / FEATURES
Search Rings
Catalog all site information and store every necessary piece of information for
each site. Combine search ring and site information together, so you can view
each site candidate within each search ring.
Site Information
Keep all the important site information in one place that is easy to access
Flag sites with difficult zoning conditions
View important site information directly on the screen, (site type, lat & longs,
structure type, Zoning designation, etc)
Set controls to allow some users editing capability while others can only view
information
To group sites by regions
Project Meetings
Easily update site status in project meetings
To manage vendors activities
Site Scheduling
To create their own list of tasks they feel is required to build a network
To determine which tasks are falling behind and which tasks are on schedule?
Set different baseline schedules for each site
To create a separate schedule for each site
To update a schedule as it changes from day to day
To view hundreds of Microsoft Project Schedules in one environment
Reporting
To track as many sites as desired
To create instant reports on progress for any grouping of sites or any task
To create reports by regions or markets
To view progress for an entire market or progress by an region within the market
To create a calendar of tasks that are due any given week
To create a project meeting report for the purposes of project meetings
- --------------------------------------------------------------------------------
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Attachment 3
Current and Preexisting Clients:
The following has been mutually agreed.
Project Tracker Bids
Integrated Ventures, LLC will continue to market and attempt to close all
current Project Tracker bids to Digitel/Swisscom and Robert's Wireless as well
as the new bids for: Swisscom, Decision Management Associates and Wind Italia.
1) WFI, Inc. agrees to pay Integrated Ventures, LLC a sales commission of
[***]% on gross profit.
2) Integrated Ventures, LLC receives first option for implementation.
3) Integrated Ventures will provide copies of current bids.
Current Clients
Integrated Ventures, LLC will continue with our full contract until the end of
phase 4 for TritonPCS/Sun Com.
Preexisting Clients
Integrated Ventures, LLC will notify all preexisting clients that the software
has been sold and they should go through WFI, Inc. for support or new versions.
Clients that fall under this category are:
1) Alltel
2) Omnipoint-PCS
3) Pacific Bell/SBC
The following stipulations apply:
1) Integrated Ventures, LLC receives first option for implementation at a WFI,
Inc. accepted bid price.
2) Integrated Ventures, LLC will provide copies of existing contracts.
* Confidential treatment requested
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Attachment 4
WFI Project Tracker Media Listing
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
<S> <C>
\DATA DICTIONARY Root Directory containing all Data Dictionaries
- ----------------------------------------------------------------------------------------------------------
\DATA DICTIONARY\COST TRACKER Data Dictionary of the Cost Tracker
- ----------------------------------------------------------------------------------------------------------
\DATA DICTIONARY\PROJECT TRACKER Data Dictionary of the Project Tracker
- ----------------------------------------------------------------------------------------------------------
\DATA DICTIONARY\PROPERTY MANAGER Data Dictionary of the Property Manager
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
\DOCS Root directory containing all documentation
- ----------------------------------------------------------------------------------------------------------
\DOCS\COST TRACKER Directory containing all related Cost Tracker
documentation including specification
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROJECT TRACKER Directory containing all related Project Tracker
documentation including basic specification
documentation
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROJECT TRAKCER\ NEW SCREEN CAPTURES Screen prints of all forms
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROJECT TRACKER\ORIGINALS Version 1.0 end user documentation
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROJECT TRACKER\TESTING Testing reports and enhancement requests
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROPERTY MANAGER Screen shots of all forms
- ----------------------------------------------------------------------------------------------------------
\DOCS\PROPERTY MANAGER\ORGINAL SCREENS Screen shots of all forms
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
\INSTALL Root Directory for installation software
- ----------------------------------------------------------------------------------------------------------
\INSTALL\COST TRACKER Subdirectory containing install items for Cost
Tracker
- ----------------------------------------------------------------------------------------------------------
\INSTALL\COST TRACKER\ADMIN MODULE Software to install Cost Tracker Admin Module
- ----------------------------------------------------------------------------------------------------------
\INSTALL\COST TRACKER\VENDOR MODULE Software to install cost tracker vendor module
- ----------------------------------------------------------------------------------------------------------
\INSTALL\PROJECT TRACKER Subdirectory containing install items for Project
Tracker
- ----------------------------------------------------------------------------------------------------------
\INSTALL\PROJECT TRACKER\PROJTRAC Software to install Project Tracker
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
\SOURCE Source code for all modules
- ----------------------------------------------------------------------------------------------------------
\SOURCE\COST TRACKER Source code for Cost Tracker
- ----------------------------------------------------------------------------------------------------------
\SOURCE\PROJECT TRACKER Source code for Project Tracker
- ----------------------------------------------------------------------------------------------------------
\SOURCE\PROPERTY MANAGER Source code for Property Manager
- ----------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
Integrated Ventures, LLC. - Confidential Page 15 04/20/99
<PAGE>
EXHIBIT 10.31
---------------------------------
Confidential Treatment Requested
under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
[LOGO OF METRICOM APPEARS HERE]
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement"), effective September 21, 1999
(the "Effective Date") by and between METRICOM, INC. a Delaware corporation
(hereinafter referred to as "Metricom") and WIRELESS FACILITIES, INC., a
Delaware corporation, and its affiliates (hereinafter referred to as "WFI") sets
forth the terms and conditions ("Terms and Conditions") for the acquisition of
WFI's services. Services acquired hereunder shall be described in a Statement of
Work attached hereto as an exhibit. The terms of each Statement of Work, taken
together with these Terms and Conditions, shall constitute a separate agreement
("Agreement") and shall be considered independent of any other agreements
between the parties that incorporate these Terms and Conditions. Each Statement
of Work shall incorporate these Terms and Conditions by reference. Any terms
and conditions in said Statement of Work which expressly supersedes any terms
and conditions in these Terms and Conditions shall apply only to the specific
services defined in said Statement of Work. (Metricom and WFI are each
hereinafter referred to individually as a "Party" or collectively as "Parties").
WHEREAS, Metricom intends to acquire sites and construct facilities in order to
develop and operate a wireless Mobile Data Services system (the "Project")
WHEREAS, the Parties have reached an agreement whereby WFI will provide various
business and strategic consulting, network development design and development
services to Metricom in connection with the Project as requested by Metricom and
as set forth in a Statement of Work.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the Parties
agree as follows:
ARTICLE I DEFINITIONS
-----------
1.1 Definitions. Unless the context clearly requires otherwise, each of the
------------
following terms, when used in this Agreement with initial capitals, shall have
the meaning set forth for such term below:
Accepted Engineering Practices means those current standards of care and
- ------------------------------
diligence normally practiced by recognized engineering firms in performing
services of nature similar to that of the Services.
Affected Party shall have the meaning as set forth in Section 11.1.
- --------------
Affiliates shall mean any entity that directly or indirectly controls, or is
- ----------
controlled by, or is under common control by a party. The term "control" in
this Section shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of an entity,
whether through the ownership of voting securities, by contract or otherwise.
Agreement means this Agreement for Engineering, Procurement and Construction
- ---------
(including all Exhibits).
Page 1 of 27
<PAGE>
Amendment means a written amendment to this Agreement executed by Metricom and
- ---------
WFI as provided in Section 2.7 (a).
Beneficial Use shall mean possession of or any commercial use of the Services by
- --------------
the Metricom whether Metricom accrues any compensation therefore or not.
Business Day means any Day on which commercial banks are not authorized or
- ------------
required to close (but, in any event, excluding Saturdays and Sundays).
Change, Changed means any change in (i) the Services, (ii) the Statement of
- ---------------
Work, (iii) the Project Cost or (iv) the Project Schedule.
Change Directive means written directive by Metricom's Representative
- ----------------
authorizing WFI to perform changed Services prior to execution of a Change
Order.
Change in Laws and Regulations has the meaning set forth for that term in
- ------------------------------
Section 2.8(b).
Change Order means a written order regarding a Change issued, accepted and
- ------------
executed by Metricom and WFI in accordance with Article IV.
Claims has the meaning set forth for that term in Article 7.
- ------
Commercial Operations Date means the first day following Provisional Acceptance.
- --------------------------
Components means any and all systems, subsystems, assemblies, subassemblies,
- ----------
materials and equipment (including parts, instruments, software, and hardware),
and every item of whatever nature, including all documentation related thereto,
incorporated into the Services or the Services and to be provided by WFI or its
Vendors or Subcontractors under this Agreement, but excluding all Construction
Aids.
Confidential Information shall mean any confidential or proprietary
- ------------------------
information, including without limitation, any design tools, designs,
schematics, source code, plans or any other information relating to any research
project, Services in process, future development, scientific, engineering,
manufacturing, marketing or business plan, or financial or personnel matter
relating to either party, its present or future services, sales, suppliers,
customers, employees, compensation, investors or business, identified and marked
by the disclosing party as "Confidential Information," whether in oral, written,
graphic or electronic form. If disclosed in oral form, such Confidential
Information must be reduced to writing and marked as Confidential Information
within thirty (30) days following disclosure.
Construction Aids means all materials, supplies, construction equipment,
- -----------------
construction tools, field office equipment, field office supplies, scaffolding
and form lumber, temporary buildings and facilities, computer software and
computer hardware used in design and other items that are required for the
Services but which are not intended to become a permanent part of the Services.
Contamination has the meaning set forth for that term in Section 3.6.
- -------------
Day means a calendar day unless otherwise stated or unless the context within
- ---
which such term is used clearly indicates another meaning.
Debtor Relief Law has the meaning set forth for that Section 10.1 (d).
- -----------------
Page 2 of 27
<PAGE>
Deliverables shall mean any agreements, products, designs, schematics,
- ------------
tools, code, technical data, inventions, know-how and associated Intellectual
Property Right created during the performance of the Services as set forth in
the applicable Statement of Work, and any Documentation related to any of the
foregoing.
Documentation shall mean any installation, operation, administrator and end
- -------------
user manuals, any site preparation guides or configuration guides, any media
containing any of the foregoing, as well as any other operations and maintenance
manuals, training materials and other technical and user documentation,
including without limitation any schematics, design documents, analyses and
technical overviews.
Effective Date means the date on which this Agreement is executed and delivered
- --------------
by the parties.
Environmental Laws means all federal, state and local laws, rules, regulations,
- ------------------
orders, standards and interpretations concerning environmental matters to the
extent applicable to the Services or the operation thereof.
Extraordinary Site Conditions means (i) any unknown man-made subsurface
- -----------------------------
obstruction or archeological artifacts not disclosed by investigations or
reports performed or provided to WFI and (ii) any contamination, hazardous
materials or waste, excluding such waste brought to the Site by WFI,
Subcontractors or Vendors in the performance of the Services.
Final Completion shall have the meaning set forth for that term in Section 9.4.
- ----------------
Final Completion Date means the date on which Final Completion occurs.
- ---------------------
Final Plans and Specifications means the final drawings, technical
- ------------------------------
specifications and operations and maintenance procedures and specifications to
be prepared by WFI with respect to the Services in accordance with the Statement
of Work.
Final Invoice has the meaning set forth for that term in Section 5.6.
- -------------
Force Majeure has the meaning set forth for that term in Section 11.1.
- -------------
Functional Tests means the various tests, if any, of the Services and its
- ----------------
Components to be completed as part of the Statement of Work.
Indemnified Persons has the meaning set forth for that term in Section 7.1.
- -------------------
Initial Term shall have the meaning as set forth in Section 2.2.
- ------------
Intellectual Property Rights shall mean any and all intellectual property
- ----------------------------
and/or proprietary rights, including without limitation, all mask Services
rights, all copyrights (including rights in audiovisual Services), moral rights,
trademarks, trade names, patent rights (including patent applications and
disclosures) and trade secret rights, now known or hereafter recognized in any
jurisdiction in the world.
Invoice means the monthly invoice to be submitted by WFI to Metricom in
- -------
accordance with and as defined in Section 5.3.
Laws and Regulations means all federal, state and local laws, rules,
- --------------------
regulations, orders, codes, standards (including building and related codes and
standards) and interpretations, including the Occupational Safety and Health Act
(1970), the Permits, all Environmental Laws and all applicable equal employment
opportunity programs.
Page 3 of 27
<PAGE>
Mechanics' or Materialmen's Lien has the meaning set forth for that term in
- --------------------------------
Section 10.3.
Metricom has the meaning set forth for that term in the Preamble to this
- --------
Agreement.
Metricom Permits means all Permits with respect to the Services required to be
- ----------------
taken out in the name of Metricom which are necessary for the performance of the
Services.
Metricom's Representative means the person(s) who, from time to time, shall be
- -------------------------
authorized by Metricom in writing to act on behalf of Metricom and with whom WFI
may consult as set forth in Section 3.1.
Milestone Payment Schedule means the schedule of the payments to be made to WFI
- --------------------------
for the performance of the Services which is set forth in Exhibit III.
Milestone Payments means the monthly payments against the Project Cost payable
- ------------------
pursuant to Section 5.5.
Miscellaneous Equipment and Furnishings means maintenance tools, maintenance
- ---------------------------------------
equipment, spare parts, and laboratory furnishings and equipment.
Network means the network described in the Statement of Work.
- -------
Notice shall have the meaning as set forth in Section 16.2.
- ------
Notice to Proceed has the meaning set forth for that term in Section 2.3.
- -----------------
Permits means the licenses and permits required for the construction and
- -------
operation of the Project
Program Director means the person designated by WFI who shall be authorized to
- ----------------
act on behalf of WFI and with whom Metricom or Metricom's Representative may
consult as set forth in Section 2.7(a).
Program Manager means the person designated by the Program Director with the
- ---------------
delegated authority to act on behalf of WFI and with whom Metricom or Metricom's
Representative may consult as set forth in Section 2.7(a).
Progress Report has the meaning set forth for that term in Section 2.7(c).
- ---------------
Project Cost means the budgeted estimated project cost price for the Services,
- ------------
as adjusted pursuant to Article IV.
Project Schedule means the schedule for the carrying out and completion of the
- ----------------
Services which is attached hereto as Exhibit II.
Property means the Services, the Project, the Site and the real property of
- --------
which the Site is a part.
Punch List Items means administrative items or other items of the Services the
- ----------------
cost of which is immaterial and the omission of which would not adversely affect
the safe Commissioning and Testing or commercial operation of any Component or
the Services as contemplated under Section 9.3(a).
Renewal Term shall have the meaning as set forth in Section 2.2.
- ------------
Risk of Loss Date means the date set forth for that term is Section 7.3.
- -----------------
Page 4 of 27
<PAGE>
Schedule of Values means the schedule in Exhibit III of the milestones in WFI's
- ------------------
performance of the Services which are to be completed as a condition to WFI's
right to receive each of the payments to be made pursuant to the Milestone
Payment Schedule.
Services means the procurement, supply or provision of all Components (including
- --------
materials, supplies and equipment), Documents and all other things, and the
performance, procurement, supply or provision of all Services (including all
labor) as set forth in the Statement of Work, in each case as necessary or
reasonably appropriate to accomplish the design, engineering, procurement,
construction management, Substantial Completion, and Final Completion of the
Services, all in accordance with Article II, the Statement of Work and the Final
Plans and Specifications.
Site means the physical location of the candidate and/or selected base station,
- ----
base station controller or mobile switching center site, as the case may be, and
all structures, improvements, foundations, towers, and other facilities
necessary to house or hold equipment and all other related third party
equipment.
Statement of Work means the total extent and general description of the Services
- -----------------
as set forth in Exhibit I.
Subcontractor(s) means those persons or companies who have a contract with WFI
- ----------------
or any other person or entity for the performance of any part of the Services,
including Subcontractors of whatever tier.
Substantial Completion means completion of the physical construction of the
- ----------------------
Services, and the completion of other Services (with the exception of Punch List
Items, Testing and delivery of as-built drawings in accordance with Exhibit I,
the Statement of Work and the Final Plans and Specifications, to such point that
the Services shall be ready for Commissioning.
Suspension Period shall have the meaning as set forth in Section 10.5.
- -----------------
Taxes has the meaning set forth for that term in Section 5.4.
- -----
Testing means the conduct of the Tests of the Services in accordance the
- -------
Statement of Work.
Vendor(s) means those persons or companies providing or supplying any materials
- ---------
and equipment to WFI or Subcontractors for the Project, but who do not perform
construction Services at the Site and who are not Subcontractors.
Warranty Services means any curative or remedial Services performed by WFI or
- -----------------
any Subcontractor or Vendor pursuant to any warranty under this Agreement or any
warranty to be obtained or administered under this Agreement.
Week shall mean five (5) calendar Days as defined herein.
- ----
WFI has the meaning set forth for that term in the preamble to this Agreement.
- ---
WFI Default has the meaning set forth for that term in Section 10.1.
- -----------
WFI Permits means all Permits to be obtained in the name of WFI and required for
- -----------
the Services and initial operation of the Services until Provisional Acceptance,
but excluding all Metricom Permits.
WFI Warranties means the warranties of WFI pursuant to Article VI.
- --------------
WFI Warranty Period has the meaning set forth for that term in Section 6.1.
- -------------------
Page 5 of 27
<PAGE>
WFI Waste Materials has the meaning set forth for that term in Section 2.12.
- -------------------
1.2 Rules of Interpretation. Defined terms include the plural as well as the
------------------------
singular. Any agreement defined or referred to above shall include each
amendment, modification and supplement thereto and waiver thereof as may become
effective from time to time, except where otherwise indicated. Any term defined
by reference to any other agreement shall have such meaning whether or not such
document is in effect. Any reference to an article, section or exhibit shall
refer to an article, section or exhibit of this Agreement unless otherwise
specified. The terms "hereof," "herein," "hereunder" and comparable terms refer
to the entire agreement with respect to which such terms are used and not to any
particular article, section or other subdivision thereof. A reference to any
law includes any amendment or modification to such law made before the relevant
date. A reference to any person includes its permitted successors and permitted
assigns. The words "include," "includes" and "including" are not limiting. If
any provision of this Agreement contemplates that the parties shall negotiate
any matter after the Effective Date, such provision shall be construed to
include an obligation of the parties to negotiate in good faith within the
spirit and intent of this Agreement.
ARTICLE II SCOPE OF SERVICES
-----------------
2.1 Description of the Services. In accordance with and subject to the terms
----------------------------
and conditions of this Agreement, WFI hereby agrees to provide Services which
may include, without limitation: program management, GIS data services, RF
engineering, site acquisition services, zoning and permitting, construction
management services, training, installation and testing for Metricom and
Metricom's customers, business consulting and network maintenance, (the
"Services") as listed in the Statement of Work. The Services will be
compensated on a fixed fee, time and material or hourly basis as agreed by the
Parties.
2.2 Term of Agreement. The term of this Agreement shall be one (1) year from
------------------
the Effective Date unless otherwise terminated in accordance with this Agreement
(the "Initial Term"). The Initial Term will automatically renew for additional
successive terms of one (1) year (each, a "Renewal Term") unless either Party
communicates its intention not to renew in writing to the other Party at least
thirty (30) days prior to expiration of the Initial Term or current Renewal
Term. The Parties agree that, for the purposes of the RF Services to be
provided by WFI under the attached Statement of Work, Exhibit I, attached
hereto, the Initial Term of the Agreement shall be twenty-one (21) months from
the Effective Date which shall be September 1, 1999.
2.3 Notice to Proceed. Metricom shall at any time after the Effective Date
------------------
deliver a written Notice to WFI to proceed with all or part of the Services (the
"Notice to Proceed). WFI shall not be authorized by Metricom pursuant to this
Agreement to proceed with the Services until its receipt of the Notice to
Proceed.
2.4 Performance Standards. WFI shall perform the Services, and shall provide
----------------------
Metricom with Services, such that:
(a) Components. All Components shall be new and of good quality when
-----------
installed; shall be designed and manufactured, and of a grade, in
accordance with recognized industry standards for such Components
and shall be free from defects in materials and workmanship;
(b) Services. All Services shall be performed in accordance with
---------
accepted industry standards and in a good and workmanlike manner;
and all Components shall be installed in accordance with
manufacturer's specifications; and the Services will be designed and
built to comply with all Laws and Regulations in effect at as of the
Effective Date.
2.5 Permits. WFI shall obtain at Metricom's expense all WFI Permits. WFI
--------
shall provide Metricom with engineering and design data, information and support
with respect to the design and performance characteristics of the Services to
the extent reasonably requested or required by Metricom to assist Metricom in
obtaining all
<PAGE>
Metricom Permits. If the requirements of Metricom Permits issued after the
Effective Date effect a change in WFI's Statement of Work, or materially affect
WFI's cost of performance hereunder or its ability to attain the Project
Schedule or to perform by a date certain as required under this Agreement, a
Change Order shall be issued for such purpose.
2.6 Compliance with Schedule. WFI shall commence the Services as soon as
-------------------------
practicable after receipt of the Notice to Proceed. WFI shall carry on and
complete the Services in accordance with the Project Schedule as amended in
accordance with Article IV.
2.7 Management and Conduct of the Services. WFI shall manage and conduct the
---------------------------------------
Services in accordance with the terms of Exhibit I. Without limiting the
generality of the foregoing, WFI shall:
(a) Appointment of Program Director. Promptly following the Effective
--------------------------------
Date, appoint and give Metricom written Notice of the identity and
appointment of a Program Director who shall be authorized to act on
behalf of WFI and with whom Metricom may consult at all reasonable
times, and whose instructions, requests, and decisions will be
binding upon WFI as to all matters pertaining to this Agreement and
the performance of the parties hereunder (provided no amendment or
modification of this Agreement shall be effected except by a formal
written Amendment executed by both parties and no Change shall be
effected except by a Change Order and/or Change Directive). The
Program Director will give written Notice to Metricom designating
Project Managers who have the delegated authority to act on behalf
of WFI and with whom Metricom may consult at all reasonable times,
and whose instructions, requests and decisions will be binding upon
WFI as to all matters pertaining to the Work.
(b) Project Schedule. Provide Metricom with the Project Schedule, which
-----------------
shows major milestones for engineering, procurement, construction,
Testing, Substantial Completion, Commissioning, Acceptance and Final
Completion of the Services. The Project Schedule is consistent with
the expected date of delivery of the Notice to Proceed and may be
revised to reflect the actual date of delivery of the Notice to
Proceed.
(c) Consultation and Coordination with Metricom. Initially, WFI will
--------------------------------------------
consult with Metricom on a [***] basis. Thereafter, WFI will
consult with Metricom on some other regularly scheduled basis as
determined by both parties but in no event less frequently than
[***]. At the time of each consultation, WFI shall deliver to
Metricom a written report of progress achieved subsequent to the
preceding consultation (a "Progress Report"). Such written report
shall, in reasonable detail, consider material activities in the
performance of the Services and indicate milestones reached and the
occurrence of special events or circumstances affecting or related
to the Services, if any, during the period covered by the report;
the status of applications for, or other action taken to obtain,
necessary Permits pursuant to Section 2.5 hereof and the applicable
Statement of Work; leasing status, a Change Directive - Change Order
status log and an evaluation of problems and deficiencies and a
description of any planned corrective action with respect thereto.
WFI shall advise Metricom of any significant changes, developments,
or delays in the Services.
(d) Notice of Tests and Inspections. Provide Metricom with prior
--------------------------------
written Notice of the time and place for the conduct of all
equipment tests and inspections of Components on or before five (5)
Business Days' prior to the related test, or inspection or such
other period as may be agreed upon by WFI and Metricom, provided, in
the case of any retesting shortly following a failed test, such
Notice to Metricom may be verbal and within such reasonable period
prior to such retest. In the case of field tests and inspections of
the Services, WFI and Metricom will agree on the field tests and
inspections as to which Notice will be given by WFI, and with
respect to such field tests and inspections, WFI shall provide
Metricom's Representative with reasonable
Page 7 of 27
- -------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
Notice of, and an adequate opportunity to, attend such tests and
inspections as are customary for Site coordination in the
construction industry. WFI shall not be required to delay any
testing if Metricom fails to appear at the approximate time and
place designated by WFI. This section shall not preclude WFI from
retesting any Component or the Services.
(e) Review and Inspection. Subject to the restrictions on inspection
----------------------
set forth in Section 2.7 (d), afford Metricom the opportunity to
review and inspect all elements of the Services in a reasonable
manner. WFI agrees to consider in good faith any and all comments
made by Metricom, provided, however, WFI shall determine to what
extent such comments should be considered as respects completion of
the Services. Metricom shall have the right to require repair or
replacement of any Services which is defective or not performed in
accordance with the Statement of Work or the Final Plans and
Specifications as specified in the applicable Statement of Work or
deviates from other requirements of this Agreement, provided WFI
shall have until Provisional Acceptance to complete such repair
or replacement.
(f) Control of the Services. WFI shall be solely responsible for all
------------------------
construction means, methods, techniques, sequences, procedures and
safety and security programs in connection with the performance of
the Services.
(g) Site Acquisition Requirements and Milestones. WFI shall perform the
---------------------------------------------
Site acquisition services as more particularly described in the
applicable Statement of Work. Metricom shall execute all Site Leases
in Metricom's-name. WFI shall present all Site Leases to Metricom
for execution.
2.8 Compliance With Laws and Regulations.
-------------------------------------
(a) Performance of Services. WFI shall make every reasonable effort to
------------------------
perform the Services and its obligations pursuant to this Agreement,
and shall cause all Subcontractors and Vendors to perform all
elements of the Services to be performed by them, in compliance with
all applicable Laws and Regulations as in force as of the Effective
Date. WFI shall initiate and maintain reasonable safety precautions
and programs to conform with applicable Laws and Regulations to
prevent injury to persons or damage to property on the Site. WFI
shall take reasonable steps to erect and maintain safeguards for the
protection of workers and the public and eliminate or abate safety
hazards created by or otherwise resulting from the performance of
the Services. WFI shall take all precautions reasonably necessary
for the safety and health of, and shall provide all reasonable
protection to prevent damage, injury or loss to: (i) persons working
at the Site employed by WFI or Subcontractors in connection with the
Services, (ii) all materials and equipment to be incorporated into
the Services, whether in storage on or off the Site, under the care,
custody or control of WFI or any Subcontractor, and (iii) other
property at the Site.
(b) Change of Laws and Regulations. If there is a change in any Laws
-------------------------------
and Regulations in existence at the Effective Date or there is an
enactment of any new Laws and Regulations after the Effective Date
or if there is a change in the interpretation of any such Laws and
Regulations ("Change in Laws and Regulations"), and if any such
Change in Law and Regulations effects any change in the Statement of
Work, or materially affect WFI's cost of performance hereunder or
its ability to attain the Project Schedule or to perform by a date
certain as required under this Agreement, a Change Order shall be
issued for such purpose.
(c) Following Acceptance. From and after Acceptance, Metricom assumes
---------------------
all responsibility for compliance by the Services with all Laws and
Regulations.
Page 8 of 27
<PAGE>
2.9 Subcontractors. WFI may subcontract any portion of the Services to a
---------------
Subcontractor or Vendor. WFI agrees it is as fully responsible to Metricom for
the acts and omissions of its Subcontractors and Vendors and of persons either
directly or indirectly employed by them as it is for the acts and omissions of
persons directly employed by WFI. Notwithstanding the above, WFI may have
portions of the Services performed by its affiliated entities or their
employees, in which event WFI shall be responsible for such Services and
Metricom will look solely to WFI as if the Services were performed by WFI.
2.10 Metricom as Contracting Party with Subcontractor. If Metricom chooses to
-------------------------------------------------
contract directly with subcontractor for work performed for the Project, then
Metricom shall be solely responsible for the payment of service fees and
expenses of such subcontractors for work performed in connection therewith.
Metricom and WFI hereby acknowledge and agree that Metricom and not WFI shall be
solely responsible for the payment of fees and expenses of subcontractors
contracting directly with Metricom under this Agreement and for all purchase
orders issued to subcontractors for performance of Services hereunder, and that
Metricom shall be billed directly by such subcontractors.
Metricom agrees to include the following paragraph in its agreements with all
subcontractors it directly contracts with and retains to perform, or assist WFI
in performing, Services hereunder:
Manager. Subcontractor acknowledges that Metricom has retained Wireless
-------
Facilities, Inc., a Delaware corporation and its affiliates, including its
designated employees, contractors and agents, if any ("Manager") to manage
the Services rendered by Subcontractor at the sites. Subcontractor hereby
consents to Metricom's delegation to Manager of any or all of Metricom's
duties and responsibilities under this Agreement, with the exception of
Metricom's payment obligations to Subcontractor. Subcontractor hereby
agrees to work under the direction of Manager in performance of the
Services. Subcontractor shall be responsible to Manager, as Metricom's
designee, for the timely and accurate completion of all Services performed
by Subcontractor under this Agreement. Under no circumstances, however,
shall Subcontractor look to Manager for payment for Services under this
Agreement. Metricom and Subcontractor acknowledge and agree that Metricom
and not Manager shall be responsible for the payment of Subcontractor's
fees under this Agreement and any purchase orders issued hereunder.
2.11 Materials Management Services. At Metricom's request and written
------------------------------
authorization, WFI shall procure, pay for, receive and store equipment and
building materials for use on the Project ("Materials Management Services").
Metricom shall compensate WFI for Materials Management Services by reimbursing
WFI for the cost of such equipment and building materials, together with an
administrative fee.
2.12 Clean Up. WFI shall at all times keep the Site reasonably free from
---------
waste materials and rubbish resulting from materials and equipment procured by
WFI or Construction Aids used by WFI in the performance of the Services,
excluding waste described in Section 3.6 and hazardous waste described in clause
(ii) of the definition of Extraordinary Site Conditions ("WFI Waste Materials").
As soon as practicable after the earliest of (i) the Final Completion Date, or
(ii) the date upon which WFI shall no longer have any obligations under this
Agreement, WFI shall remove all of its Construction Aids and remove any WFI
Waste Material from and around the Site.
ARTICLE III METRICOM RESPONSIBILITIES
-------------------------
In addition to the obligations of Metricom set forth elsewhere in this
Agreement, Metricom shall, at its own expense and at such times as may be
required by WFI for the successful completion of the Services in accordance with
the Project Schedule:
Page 9 of 27
<PAGE>
3.1 Metricom's Representative. Metricom shall notify WFI, in writing, of the
--------------------------
appointment of Metricom's Representative who shall be authorized to act on
behalf of Metricom and with whom WFI may consult at all reasonable times, and
whose instructions, requests and decisions shall be binding upon Metricom as to
all matters pertaining to this Agreement and the performance of the parties
hereunder, provided no amendment or modification of this Agreement shall be
effected except by an Amendment executed by both parties and no change shall be
effected except by a Change Order or Change Directive. Metricom's
Representative will provide to WFI a written list of designated individuals who
have the delegated authority to execute Change Directives.
3.2 Access. Provide WFI and its Subcontractors rights of access to and use
-------
of any Site or other location where the Services are to be performed.
3.3 Permits. Except where obtaining such permits and/or licenses and any
--------
associated documentation are specifically identified as being the responsibility
of WFI as part of the Statement of Work, obtain the Metricom Permits and provide
WFI with such information and assistance as WFI may reasonably request in
obtaining any WFI Permits, and obtain any process and other permits and/or
licenses which are required for the Services, and provide WFI with any drawings
and specifications in connection with any such process or other license
necessary for the completion of the Services and on which WFI shall rely.
3.4 Site Rules. Abide by all reasonable Site safety rules promulgated by
-----------
WFI.
3.5 Taxes. Pay all real property taxes assessed against the Site or the
------
Services and any personal property and sales taxes on the Components, provided
Metricom shall have the right to contest any such taxes in good faith by
appropriate proceedings diligently prosecuted and (in the case of any such tax
which WFI may be legally required to pay) for the payment of which Metricom has
posted a bond or provided other security reasonably acceptable to WFI. In the
event WFI is legally required to pay any such taxes (including related interest
and penalties), amounts paid by WFI and the expenses incurred by it in
connection with such payment shall be reimbursed by Metricom to WFI within ten
(10) days of demand.
3.6 Environmental Conditions. Metricom shall, at Metricom's sole expense and
-------------------------
risk, arrange for handling, storage, transportation, treatment and delivery for
disposal of Contamination and Metricom shall be solely responsible for obtaining
a disposal site for such material. Metricom shall look to the disposal Services
and/or transporter for any responsibility or liability arising from improper
disposal or transportation of such waste. WFI shall not have or exert any
control over Metricom in Metricom's obligations or responsibilities as a
generator in the storage, transportation, treatment or disposal of any
Contamination. Metricom shall complete and execute any required governmental
forms relating to regulated activities, including, but not limited to,
generation, storage, handling, treatment, transportation, or disposal of
Contamination. In the event WFI executes or completes any required governmental
forms relating to regulated activities, including, but not limited to, storage,
generation, treatment, transportation, handling or disposal of hazardous or
toxic materials, WFI shall be and be deemed to have acted as Metricom's agent.
Metricom shall indemnify, release and save WFI harmless from all damages,
liability, expenses or penalties paid by WFI resulting from Contamination. The
term "Contamination" as used in this subsection shall mean any hazardous or
toxic substance, pollutant or contaminate as defined under applicable
Environmental Laws present at the Site, which was not brought to the site by WFI
or any Subcontractor to WFI.
ARTICLE IV WORK ORDERS AND CHANGES IN THE SERVICES
---------------------------------------
4.1 General Change Order Procedure. Metricom shall have the right to make
-------------------------------
changes in the Services, within the general scope thereof, whether such changes
be modifications, alterations or additions. Changes shall include the Project
Cost and any other compensation, the Project Schedule and any other dates for
performance by WFI hereunder, and other affected rights and obligations shall be
adjusted to reflect (1) the addition to, modification of or deletion from the
Services (performed or yet to be performed) or the Services,
Page 10 of 27
<PAGE>
(2) Metricom's request for or approval of performance of services in excess of
WFI's standard Services day or Services week or such shorter times as are
provided by applicable collective bargaining agreements or on a holiday
customarily observed by WFI (including an allowance for loss of efficiency due
to overtime or shift Services), (3) the discovery of any subsurface (including
archeological finds) or climatic conditions of an unusual nature, differing
materially from those ordinarily encountered in the jobsite area, (4) a Change
in Law and Regulations by which WFI is required to pay increased or additional
taxes, government-regulated transportation costs, or insurance not required as
of the date of this Agreement, (5) delay or suspension of, or interference with,
the Services by Metricom or by any other person or entity including, but not
limited to, national, state and local governments, (6) modifications to design
criteria or other information made during the performance of the Services and
supplied by any person or entity other than WFI, (7) the consequences of Force
Majeure.
4.2 Estimates and Authorizations.
-----------------------------
(a) Procedure for Estimates. In the event Metricom contemplates making
------------------------
a Change, Metricom shall so advise WFI. Within five (5) Business
Days following receipt of such advice, WFI shall submit to Metricom
a preliminary written estimate relating to the proposed Change,
including (i) any projected change in the cost of the performance of
the Services and any projected modification of the Project Cost
occasioned by such Change, (ii) the effect such Change could be
expected to have on the Project Schedule, or any other schedule or
dates for performance by WFI hereunder, and (iii) the potential
effect of such Change on WFI's ability to comply with any of its
obligations hereunder, including WFI's warranties. If Metricom
elects to proceed with a more detailed examination of such proposed
Change, within such period as shall be agreed upon by the parties,
WFI shall submit to Metricom a detailed estimate relating to the
contemplated Change on a written Change Order. If Metricom elects to
proceed with the proposed Change, Metricom and WFI shall agree upon
a Change Order, and the cost of WFI's detailed estimate shall be
included in such Change Order. If Metricom elects not to proceed
with such proposed Change, Metricom agrees to reimburse WFI for
WFI's reasonable expenses incurred in connection with the
preparation of the estimate of such proposed Change in accordance
with the rates and markups pursuant to Exhibit III, in full and as
part of the next monthly payment in accordance with Article V.
(b) Authorization of Change Order. Within five (5) Business Days of
------------------------------
receipt of WFI's estimate, Metricom shall review the detailed
estimate with WFI for the purpose of determining whether to proceed
with such Change and, if so, for the purpose of agreeing on the
matters set forth therein, including a mutually acceptable change in
the Project Cost, the Project Schedule and any other dates for
performance by WFI hereunder, if any. If the parties reach agreement
on the matters listed in the Change Order submitted by WFI, Metricom
shall cause Metricom's Representative, and WFI shall cause its
Program Director, to execute such form, as amended to reflect the
agreement of the parties. WFI's Program Director shall execute such
form as the originator thereof and Metricom's representative shall
sign "Accepted by"; each shall initial any changes added to the form
as originally presented. WFI shall promptly adjust the Project
Schedule, the Schedule of Values and Milestone Payment Schedule and
any other schedules or dates for performance by WFI hereunder
requiring adjustment to reflect the Change agreed upon. Except as
otherwise provided herein, in no event shall WFI undertake a Change
in the Services until it has received a Change Order or Change
Directive executed by the authority of the Metricom representative.
(c) Change Directive. In the event Metricom's Representative directs
-----------------
WFI to perform Services prior to agreement to, and execution of a
Change Order, Metricom Representative will execute a Change
Directive authorizing WFI to perform the changed Services on a
hourly rate in accordance with Exhibit V. The Services shall be
performed on the hourly rate basis until an
Page 11 of 27
<PAGE>
estimate of the impact of the Change can be prepared for Metricom
review, agreement and execution in accordance with (c) above. The
Change Directive will state the general scope of the changed
Services to be performed and rough order of magnitude (ROM) estimate
of the cost thereof.
4.3 Suspension. Metricom may notify WFI in writing to suspend its Services
-----------
on that portion of the Services affected by a contemplated Change (whether or
not such Change will require a modification to the Statement of Work) pending
Metricom's decision on such Change. There shall be an equitable adjustment of
the Project Cost and dates set forth in the Project Schedule and other dates for
performance by WFI hereunder on account of such suspension.
4.4 Force Majeure Caused Delay. In the event of a Force Majeure event or
---------------------------
other event described in Section 11.1, in accordance with Section 11.3, Metricom
shall execute and deliver to WFI a Change Order reflecting any adjustments to
the Project Cost, the Project Schedule or any other dates for performance
hereunder, or any other obligations under this Agreement.
4.5 WFI Initiated Changes. WFI shall have the right to initiate Change
----------------------
Order's and/or Change Directives independent of requests by Metricom, with
estimates to be prepared in accordance with Section 4.2. The WFI initiated
Change Order shall be handled as if initiated by Metrico m.
4.6 Disputes. If either party disputes the existence, extent, validity or
---------
affect of a Change, then either party may notify the other party that it desires
to meet and resolve the dispute. If the dispute cannot be resolved to the
mutual satisfaction of the parties within five (5) Business Days, then either
party can demand binding dispute resolution in accordance with Section XIII.
ARTICLE V COMPENSATION & PAYMENT
----------------------
5.1 Compensation. In consideration of WFI's performance of the Services,
-------------
Metricom shall pay WFI for all Services assigned by and rendered to Metricom
pursuant to this Agreement. WFI will be reimbursed only for expenses which are
expressly provided for in Exhibit III or which have been approved in advance in
writing by Metricom, provided WFI has furnished such documentation for
authorized expenses a Metricom may reasonably request. All work performed by
WFI at Metricom's request in addition to the Services specifically set forth in
this Agreement shall be compensated at the hourly rates agreed upon by the
Parties and set forth in Exhibit III.
5.2 Milestone Payment Schedule. The Milestone Payment Schedule contained in
---------------------------
Exhibit III establishes that portion of the compensation allocated to the
various milestones set forth in the Milestone Payment Schedule, identifies
portions of the Services for purposes of determining WFI's entitlement to
Milestone Payments, and to the best of WFI's knowledge and judgment is a
reasonable representation of milestones achieved during the calendar month. Upon
attainment of each milestone, WFI shall submit an invoice to Metricom in
accordance with Section 5.3.
5.3 Invoices. On or before the tenth (10th) Day of each month during the
---------
performance of the Services (except that in the case of the initial payment
under the Milestone Payment Schedule, such date shall be the expected date of
issuance of the Notice to Proceed), WFI shall submit to Metricom an invoice with
respect to (i) milestones achieved during the month (ii) a monthly Progress
Report with respect to such milestones (or reference thereto if previously
delivered to Metricom), and (iii) all other documentation required to be
submitted by WFI pursuant to this Article V. WFI shall make available such
documentation and materials as Metricom may reasonably require to substantiate
WFI's right to payment of such Invoice in accordance with this Agreement,
provided, however, WFI shall not be required to provide documentation relating
to its commercial terms, including but not limited to the make-up of WFI's
Project Cost, standard rates, fixed fees or amounts expressed as a percentage of
other costs.
Page 12 of 27
<PAGE>
5.4 Taxes. WFI shall pay or cause to be paid when due (a) all taxes,
------
governmental fees, assessments, charges or levies imposed in connection with the
Services (other than fees and charges for Metricom Permits and for sales and
property taxes on the Components, or revenues from operation of the Services),
(b) all import duties, (c) all taxes measured by wages earned by employees of
WFI, any Subcontractor or any Vendor, and payroll, withholding, social security,
workers' compensation and other similar employment taxes, and (d) all taxes
calculated on the basis of WFI's receipts or income (collectively, "Taxes");
provided WFI shall have the right to contest any such Taxes in good faith by
appropriate proceedings diligently prosecuted and, in the case of any Taxes
which Metricom may be legally required to pay or which may result in lien on the
Site, the Services or the Services for the payment of which WFI has posted a
bond or provided other security reasonably acceptable to Metricom.
5.5 Payments. Except as set forth in this subsection, undisputed invoices or
---------
undisputed portions thereof are payable in full within thirty (30) days upon
receipt of invoice. Metricom shall review each such Invoice's and may make
reasonably appropriate exceptions by providing WFI with written Notice thereof
within ten (10) Days after receipt of such Invoice. Any amount of a Invoice
which is disputed by Metricom as provided in this Article V shall be resolved in
accordance with Section 13.1 and, once resolved, shall be paid within five (5)
Business Days of the date of resolution.
5.6 Final Invoice. Upon Final Completion, WFI shall submit a final Invoice
--------------
("Final Invoice"), which shall set forth all amounts due and remaining unpaid to
it pursuant to this Agreement in respect of the Project Cost.
5.7 No Obligation of Metricom to Subcontractors. Nothing contained in this
--------------------------------------------
Agreement shall (i) create or constitute a contractual relationship between any
Vendor or Subcontractor and Metricom, or (ii) create any obligation on the part
of Metricom to any Vendor or Subcontractor. Metricom shall have no obligation
to pay or to see to the payment of any moneys to any Vendor or Subcontractor,
except as may otherwise be required by law.
5.8 No Acceptance By Payment. No partial payment made hereunder shall be
-------------------------
construed to be acceptance or approval of that part of the Services to which
such partial payment relates or to relieve WFI of any of its obligations
hereunder with respect thereto.
5.9 [***] . WFI [***] to [***] on any [***], but not to [***].
ARTICLE VI WARRANTIES
----------
6.1 General Warranty. WFI warrants for the period of time set forth on the
-----------------
applicable Statement of Work (the "WFI Warranty Period") that:
(a) Components. All Components shall be (i) new and of good quality
-----------
when installed, (ii) designed and manufactured, and of a grade, in
accordance with recognized industry standards for such Components,
(iii) free from defects in materials and workmanship and (iv)
installed in accordance with manufacturer's specifications; and
(b) Services. All Services shall be performed (i) in accordance with
---------
accepted industry practices, (ii) in accordance with applicable Laws
and Regulations in effect at or prior to the
Page 13 of 27
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* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
commencement of the Agreement Effective Date, (iii) in a good and
workmanlike manner, and (iv) in accordance with the Statement of
Work.
6.2 Vendor Warranties. WFI shall obtain from all Vendors from which WFI
------------------
procures materials and equipment including Components warranties with respect to
such equipment as are reasonably available. Such warranties shall obligate the
respective Vendors to repair or replace nonconforming or defective materials and
equipment. All such warranties shall be assigned to Metricom upon Acceptance.
During the WFI Warranty Period, WFI shall assume all responsibility at its
expense for administering and enforcing such Vendor warranties, and Metricom may
rely upon and deal only with WFI with respect to such warranties. WFI's
liability with respect to such warranties shall be limited to procuring
available warranties from such Vendors and rendering all reasonable assistance
to Metricom (short of litigation) for the purpose of enforcing the same.
6.3 Correction of Nonconforming or Defective Services. If Metricom shall
--------------------------------------------------
notify WFI in writing during the WFI Warranty Period that any part of the
Services does not meet the standards specified in Section 6.1 (such Notice to be
provided with reasonable promptness after acquiring knowledge of such
nonconformity or defect and, in any event, prior to ten (10) Business Days after
Metricom becomes aware of the nonconformity or defect), then WFI shall, at its
own cost, promptly reperform, repair or replace, at its option, such
nonconforming or defective part of the Services, within its original Statement
of Work. If WFI does not promptly commence to reperform or remove and replace
any nonconforming or defective Services or any part thereof, Metricom shall give
WFI at least ten (10) Business Days written Notice prior to proceeding with any
correction of nonconforming or defective Services that Metricom reasonably
believes involves a warranty claim, and if WFI fails to respond to such Notice,
Metricom may proceed with the correction of such nonconforming or defective
Services and all reasonable expenses of reperforming and removal, restoration
shall be charged to WFI.
6.4 Wear and Tear. WFI shall, in no event, warrant against and shall have no
--------------
liability for the effects of ordinary wear and tear or erosion or corrosion, or
failure of Services due to faulty operations or maintenance by Metricom or its
representatives, agents or contractors, or conditions of service more severe
than specified in the Statement of Work or other technical documents included
with this Agreement. Further, WFI shall have no warranty obligation or
liability for defects in the Services unless Metricom demonstrates the warranty
claim is not attributable to WFI's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by Metricom
and Metricom provided WFI an opportunity to promptly make such diagnostic tests
and perform such remedial services as WFI deemed appropriate in connection with
any warranty claim made by Metricom. In the event such diagnostic services do
not reveal any warranted defect in the Services, the costs of such tests,
inspections or other diagnostic services, plus a reasonable negotiated fee,
shall be paid by Metricom.
6.5 Limitation of Warranty. The obligations contained in this Article VI
-----------------------
govern and supersede any other terms in this Agreement which address warranties
or the quality of the Services or the Services and are WFI's sole warranty and
guarantee obligations and Metricom's exclusive remedies with respect to defects
in the Services and the Services after Provisional Acceptance, provided that
portion of the Services to be completed after Substantial Completion (other than
warranty services) shall be performed in accordance with Article II until such
Services is completed in accordance with the Agreement. All of the warranties
and other obligations of WFI under this Article VI relate to the WFI Warranty
Period and WFI shall not be obligated to correct or to pay for the cost of
correcting, defects or deficiencies which become apparent after the expiration
of the WFI Warranty Period. The provisions of this Article VI shall govern,
modify and supersede any other terms of this Agreement relating to the quality
of the Services and except as provided in this Article VI, there are no other
warranties, express or implied, with respect to WFI's performance under this
Agreement.
ARTICLE VII INDEMNIFICATION
---------------
Page 14 of 27
<PAGE>
7.1 WFI's General Indemnity. WFI shall defend, indemnify and hold Metricom
------------------------
and its respective affiliates, successors, assigns, employees, agents, officers
and directors (such indemnified persons or entities collectively, the
"Indemnified Persons") harmless from and against all damages, losses, costs and
expenses (including, but not limited to, court costs and fees and expenses of
counsel) (collectively, "Claims") resulting from the death or bodily injury to
any person, or damage to any property to the extent caused by the sole negligent
act, willful misconduct, tortious or otherwise unlawful act, error or omission
by WFI or any Subcontractor to WFI.
7.2 Metricom's General Indemnity. Metricom shall defend, indemnify and hold
-----------------------------
WFI and its affiliates, and each of their respective successors, assigns,
employees, agents, officers and directors (collectively, the "WFI Indemnified
Persons") harmless from and against all damages, losses, costs and expenses
(including, but not limited to, court costs and fees and expenses of counsel)
(collectively, "Claims") resulting from the death or bodily injury to any
person, or damage to any property of Site to the extent caused by the sole
negligent act, willful misconduct, tortious or otherwise unlawful act, error or
omission by Metricom or contractors under Metricom's direct supervision or
control.
7.3 Protection of the Services. WFI shall be responsible for and obligated
---------------------------
to replace, repair or reconstruct, and to furnish any Services furnished by WFI
under this Agreement which are lost, damaged, or destroyed prior to the transfer
of care, custody, and control of the Services or the affected portion thereof to
Metricom (the "Risk of Loss Date"), provided, WFI shall not be obligated to
replace, repair or reconstruct Services with respect to which proceeds of the
insurance policy maintained pursuant to Section 8.1(d) have been paid for damage
to the Services unless proceeds are available to finance that replacement,
repair or reconstruction and Metricom shall permit such proceeds to be used to
finance such replacement, repair or reconstruction. Metricom assumes all
responsibility for such loss, damage or destruction following the Risk of Loss
Date and WFI is released from all such liability.
7.4 Metricom's Property. Metricom assumes responsibility and risk for all
--------------------
loss of or damage to property owned by or in the custody of Metricom, however
such loss or damage shall occur, and agrees to maintain property damage
insurance fully covering said property from such risk naming WFI as additional
insured and does hereby and shall cause its insurers to waive rights of
subrogation against WFI and its Vendors and Subcontractors under any insurance
which Metricom may carry.
7.5 Compliance with Laws and Regulations. WFI shall indemnify and hold the
-------------------------------------
Indemnified Persons harmless from and against all Claims caused by any violation
of, any Laws and Regulations by WFI or any Subcontractor.
7.6 Notice and Defense. The indemnified party shall notify the indemnifying
-------------------
party in writing within ten (10) Days after the indemnified party becomes aware
of any Claim for which the indemnified party seeks indemnity under this Article
VII. The indemnifying party shall have charge and direction of the defense of
any such Claim and the indemnified party shall render all reasonable assistance,
at the indemnifying party's expense that may be required by WFI and its counsel
in the defense of such Claim.
7.7 Limitations. WFI shall have no obligation to Metricom with respect to
------------
any damage or loss to property referred to above caused by the perils of war,
insurrection, revolution, nuclear reaction, or other like perils as may be
excluded under the scope and limits of the insurance coverage provided pursuant
to Section 8.1 (d) and WFI's liability with respect to loss, damage or injury
shall not exceed the scope and limits of the insurance coverage provided
pursuant to Article VIII. Nothing in this Article VII shall be construed to
require WFI to indemnify any person to the extent harm results from such
person's own negligence, willful misconduct or other tortious act, error or
omission.
ARTICLE VIII INSURANCE
---------
Page 15 of 27
<PAGE>
8.1 WFI's Commitment. Commencing with the Notice to Proceed with the
-----------------
Services hereunder, and continuing until the earlier of Final Completion or
termination of this Agreement (except with regard to "Builder's Risk" Course of
Construction Insurance which shall commence and continue for the period
specified in paragraph (d) below), WFI shall maintain, at its expense, insurance
policies that are appropriate in scope and amount to properly cover WFI's
obligations under the Agreements as follows:
(a) Employees. Workers' compensation and/or all other social insurance
----------
in accordance with the statutory requirements of the state,
province, or country having jurisdiction over WFI's employees who
are engaged in the Services, with employer's liability of one
million dollars ($1,000,000) each accident;
(b) Public Liability. Commercial general liability insurance in a
-----------------
combined single limit of two million dollars ($2,000,000) each
occurrence for bodily injury to or death of persons and/or loss of
or damage to property of parties other than Metricom and excluding
the Services and the Services, which policy shall contain
contractual liability coverage;
(c) Automobile. Automobile liability insurance in a combined single
-----------
limit of one million dollars ($1,000,000) each occurrence for bodily
injury to or death of persons and/or loss of or damage to property
of parties other than Metricom and excluding the Services and the
Services, arising from the use of motor vehicles, and shall cover
operation on or off the Site of all motor vehicles licensed for
highway use, whether they are owned or non-owned;
(d) The Services. "Builder's Risk" Course of Construction insurance
-------------
protecting the respective interests of Metricom, WFI and
Subcontractors covering physical loss or damage during course of
construction and any materials and equipment while in transit (other
than in the course of ocean marine or air transit movement, which is
to be provided for pursuant to paragraph (e) below), while at the
Site, awaiting and during erection, and until the Risk of Loss Date.
This insurance shall be maintained to cover the replacement value of
the Services at risk, to the extent available. This insurance shall
not cover losses caused by the perils of war or nuclear reaction as
defined in the policy of insurance nor shall it cover loss of use,
business interruption, or loss of product. Metricom shall be
included as an additional insured. A deductible of twenty-five
thousand dollars ($25,000) shall apply to each and every covered
loss, except earthquake, flood, windstorm, hot testing, and other
deductibles as specified in the contract of insurance;
(d) Transit. Ocean Marine Cargo Insurance (if appropriate) covering any
--------
and all materials and equipment which may be in transit to the Site
by wet marine bottoms, or by air transportation, and/or by
connecting conveyances. Such insurance shall be maintained to cover
limits at risk.
8.2 Certificates. The foregoing insurance shall be maintained with carriers
-------------
reasonably satisfactory to Metricom, and the terms of coverage shall be as
evidenced by certificates to be furnished Metricom. Such certificates shall
provide that thirty (30) days' written Notice shall be given to Metricom by
insurer prior to cancellation of any policy.
8.3 Waiver of Subrogation. WFI shall require its insurance carriers, with
----------------------
respect to all insurance policies to be carried with respect to the Project to
waive all rights of subrogation against Metricom. WFI agrees to exercise its
best efforts to obtain from its Subcontractors waivers of subrogation.
ARTICLE IX TRANSFER AND ACCEPTANCE
-----------------------
9.1 Substantial Completion. When WFI deems that the Services, a Site or any
-----------------------
other portion thereof has reached Substantial Completion and is ready for
initial inspection, it shall so advise Metricom.
Page 16 of 27
<PAGE>
Within [***] of such advice, Metricom shall provide written notice (i) that
Substantial Completion has occurred; or (ii) why the Services, a Site, or any
portion thereof has not achieved Substantial Completion. If Metricom fails to
take any action within the [***], the issue shall be resolved in accordance with
Section 13.1.
9.2 Care, Custody and Control. The care, custody and control of the Services
--------------------------
shall pass from WFI to Metricom on written agreement that the Services, a Site
or any portion thereof has reached Substantial Completion, but subject to the
warranty and other continuing obligations of WFI hereunder, including WFI's
obligation to complete all Punch List Items outstanding as of Substantial
Completion. In any event, the care, custody, and control of the Services or
portion thereof shall pass to Metricom no later than the time when Metricom
either starts Beneficial Use of or takes physical possession thereof. From and
after the date of the transfer of the care, custody, and control of the Services
or portion thereof, (a) Metricom shall assume all risks of physical loss or
damage thereto and all responsibility for compliance by the Services or portion
thereof with applicable safety and Environmental Laws and all other Laws and
Regulations and (b) Metricom shall, and does hereby, release WFI from loss or
damage to the Services, except as provided for otherwise in the Agreement, which
may thereafter occur.
9.3 Creation of Punch List.
-----------------------
(a) As soon as WFI believes the state of the Services warrants such
action, but in any event before commencing the Provisional
Acceptance Tests, WFI will give a written Notice to Metricom that
WFI is prepared to conduct a joint inspection of the Services, a
Site or any portion of the Services.
(b) Metricom and WFI will cooperate with each other in scheduling and
conducting a joint inspection of the Services, a Site or any portion
of the Services as soon as reasonably possible after Metricom's
receipt of WFI's Notice, but in any event within five (5) Days of
its receipt. At Metricom's option, Punch List Items may be prepared
and joint inspections performed on a components-by-components or
systems-by-systems basis.
(c) Within five (5) Days of completion of any such joint inspection, but
in any event within ten (10) Days of WFI's Notice to Metricom of
WFI's readiness for a joint inspection of the Services, a Site or
systems or components thereof, Metricom shall prepare and deliver to
WFI a written description of all items of the Services (other than
the Provisional Acceptance Tests or additional Services revealed by
such tests or necessary to achieve Successful Completion of such
tests) which Metricom, in its best good faith judgment, believes
have not been completed or require revision or correction to cause
them to conform with the requirements of this Agreement.
(d) Promptly following Metricom's delivery of its proposed list of Punch
List Items to WFI, WFI shall commence and thereafter diligently
pursue the completion of all items of the Services which WFI, in its
best good faith judgment, believes have not been completed or
require revision or correction to cause them to conform with the
requirements of this Agreement.
(e) It is specifically understood and agreed that WFI's acceptance of or
agreement on a list of Punch List Items shall not alter or diminish
either WFI's obligation to complete all of the Services, or
Metricom's right to require its completion, in accordance with this
Agreement.
9.4 Final Completion. The final completion of the Services ("Final
-----------------
Completion") shall occur on the last to occur of (a) the completion in its
entirety of all physical construction of the Services in accordance with this
Agreement, including, without limitation, the completion of such finish items as
final painting and insulation and completion of Punch List Items, (b) the
completion of all other Services in accordance with this Agreement, and (c) the
Successful Completion of the Provisional Acceptance Tests.
Page 17 of 27
* Confidential Treatment Requested
<PAGE>
ARTICLE X DEFAULT, TERMINATION, CANCELLATION AND SUSPENSION
-------------------------------------------------
10.1 Events of Default. A party shall be in default of its obligations
------------------
pursuant to this Agreement (a "WFI Default" in the case of WFI's obligations or
a "Metricom Default" in the case of Metricom's obligations) upon the occurrence
of any one or more of the following circumstances, unless, except as to Section
10.1 (a) below, the party's act or failure giving rise to such circumstance is
excused as being the result of an event described in Article XII (Force
Majeure).
(a) Nonpayment. A party fails to pay or causes to be paid any amount
-----------
that has become due and payable by a party to the other party
hereunder within five (5) Days after Notice of such failure;
(b) Breach of Representations or Covenant. Any material representation
--------------------------------------
made by a party pursuant to this Agreement that shall prove to have
been incorrect as of the date such representation was made or deemed
to have been made; or if a party fails duly to observe or perform
any of the other material covenants and agreements contained in this
Agreement and such failure continues for [***] after Notice to
specifying such failure, except that such failure shall not be
deemed a default if, promptly after Notice, the defaulting party
commences in good faith and thereafter diligently prosecutes
measures which may reasonably be expected to effect a cure of such
misrepresentation in such a way and by such time as shall avoid any
adverse effect on the non-defaulting party's rights under this
Agreement, or that party's ability to achieve its obligations under
this Agreement. The cure period for breach of Sections 12.3 and 16.6
shall be [***];
(c) Insolvency. A party becomes insolvent, or fails generally to pay
-----------
its debts as they become due, or admits in writing its inability to
pay its debts as they become due, or makes a general assignment for
the benefit of creditors;
(d) Voluntary Bankruptcy. A party commences any case, proceeding or
---------------------
other action seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of itself or its debts or
assets, or adopts an arrangement with creditors, under any
bankruptcy, moratorium, rearrangement, insolvency, reorganization or
similar law of the United States or any state thereof for the relief
of creditors or affecting the rights or remedies of creditors
generally (collectively, "Debtor Relief Laws");
(e) Involuntary Bankruptcy. There shall be instituted against a party
-----------------------
under any Debtor Relief Laws any case, proceeding or action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of that party or its debts or assets, which shall be
continuing and shall not have been terminated, stayed or dismissed
within thirty (30) Days after commencement, or a trustee, receiver,
custodian or other official is appointed for or to take possession
of all or any part of the property of that party, which action
remains undismissed for a period of thirty (30) Days;
(f) Nonperformance. A party disregards any applicable Laws and
---------------
Regulations, the disregard of which may have a material adverse
effect on the non-defaulting party's rights under this Agreement and
such disregard continues for five (5) Business Days after written
Notice from the non-defaulting party; or in the case of WFI, after
written Notice of default from Metricom, WFI fails to provide
Metricom with a cure plan and fails to commence a cure of said
default in accordance with the cure plan within five (5) Business
Days.
Page 18 of 27
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* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
(g) Abandonment. A party abandons the Project (except due to a
------------
suspension of the Services permitted pursuant to this Agreement),
which may have a material adverse effect on the non-defaulting
party's rights under this Agreement, and the defaulting party fails
to recommence the Project within five (5) Business Days after
written Notice from the non-defaulting party; or a party repudiates
this Agreement.
10.2 Metricom Remedies for WFI Default. In the event of a WFI Default,
----------------------------------
Metricom shall have any or all of the following rights and remedies, and WFI
shall have the following obligations:
(a) Termination. Metricom, without prejudice to any of its other rights
------------
or remedies under this Agreement, may terminate this Agreement
immediately by delivery of a Notice of termination to WFI;
(b) Withdrawal of WFI. If requested by Metricom, WFI shall withdraw
------------------
from the Project, assign to Metricom such of WFI's subcontracts and
Vendor contracts as Metricom may request, and remove such
Construction Aids, and materials and equipment used by and any
debris or waste materials generated by WFI in the performance of the
Services as Metricom may direct, and Metricom may take possession of
any and all designs, Construction Aids, and materials and equipment,
purchase orders, inquiries, schedules, drawings, and facilities of
WFI that Metricom deems necessary to complete of the Services;
(c) Equitable Remedies. Metricom may seek equitable relief to cause WFI
-------------------
to take action, or to refrain from taking action pursuant to this
Agreement, or to make restitution of amounts improperly received
under this Agreement: or
(d) Damages. Metricom may seek damages equal to the reasonable costs in
--------
excess of the Project Cost incurred by Metricom or any party acting
in Metricom's behalf in completing the Services or having the
Services completed. Metricom shall be entitled to withhold further
payments to WFI until Metricom determines that WFI is entitled under
this Agreement to further payments. Upon completion of the Services
by Metricom or third parties, the total cost of the Services shall
be determined, and Metricom shall notify WFI in writing of the
amount, if any, that WFI shall pay Metricom.
10.3 WFI Remedies for Metricom Default. In the event of an Metricom Default,
----------------------------------
WFI shall have any or all of the following rights and remedies, in addition to
those rights and remedies that may otherwise be available to WFI under this
Agreement:
(a) Suspension. WFI may suspend performance of the Services upon no
-----------
less than ten (10) Business Days' Notice to Metricom. In that event,
WFI shall be paid for all costs incurred and arising from or
connected with the suspension, including costs of demobilization,
stand-down time and remobilization.
(b) Termination. WFI may terminate this Agreement upon no less than ten
------------
(10) Business Days' Notice to Metricom;
(c) Equitable Remedies. WFI may seek equitable relief to cause Metricom
-------------------
to take action, or to refrain from taking action pursuant to this
Agreement; or
(d) Damages. WFI may seek damages for an Metricom Default for all costs
--------
incurred by WFI arising from the Metricom Default, including
demobilization and cancellation costs, including any charges by
Vendors and Subcontractors. Notwithstanding any provision in this
Agreement to the contrary or any certificates or representations
made by WFI to the contrary, the parties
Page 19 of 27
<PAGE>
agree in the event of an Metricom Default, WFI reserves its rights
under applicable law to secure any damages suffered by WFI, whether
arising from Metricom's failure to pay amount due under this
Agreement or otherwise, as allowed pursuant to any statutory or
equitable right permitting a Mechanics' or Materialmen's Lien.
10.4 Termination for Convenience. Metricom may, in its sole discretion,
----------------------------
terminate all or any part of the Services without cause at any time by giving
sixty (60) days advance written Notice of termination to WFI specifying the
portion of the Services to be terminated and the effective date of such
termination. Immediately upon the effective date of such termination, WFI shall
stop performance of the terminated Services and immediately order and commence
demobilization with regard to the terminated Services. WFI shall continue to
proceed with any part of the Services (if any) not terminated. Upon such
termination, Metricom and WFI shall have the following rights, obligations and
duties:
(a) In case of partial termination of the Services, Metricom and WFI
shall cooperate and negotiate in good faith to agree upon a Change
effecting appropriate adjustments in the Project Cost, Milestone
Payment Schedule and other relevant matters based upon such partial
termination. In that regard, WFI shall be compensated for any
additional costs arising from a partial termination, including
Vendor or Subcontractor cancellation charges. Any such Change shall
be incorporated in a Change Order or amendment of this Agreement;
(b) Upon any termination pursuant to this Article X, Metricom may, at
its option, elect to (a) assume the responsibility for and take
title to and possession of any and all Services that is terminated
at the Site, excluding Construction Aids, and/or (b) succeed to the
interests of WFI in any or all purchase orders, contracts and
subcontracts entered into by WFI with respect to such Services
provided, (i) any such assignment is subject to the concurrent
payment by Metricom of amounts due WFI under this Section 10.5, (ii)
such assignment is acceptable to the respective Subcontractor or
Vendor that is a party to such purchase order, contracts or
subcontracts and (iii) WFI is released by Metricom and such
Subcontractors and Vendors in a form acceptable to WFI from all
further obligations and liability thereunder.
10.5 Suspension by Metricom. Metricom may, at any time after issuance of the
-----------------------
Notice to Proceed and for any reason, suspend performance of the Services or any
portion thereof by giving [***] written Notice to WFI, unless WFI agrees
in writing to a shorter Notice period. Such suspension shall continue for the
period (the "Suspension Period") specified in the suspension Notice. Should the
Services be so suspended, WFI shall be paid for all costs incurred in accordance
with the provision of Article V for Services performed to the date of suspension
and through demobilization and remobilization, including any suspension or
cancellation charges by vendors and Subcontractors.
(a) Resumption of Services. In the case of any suspension under this
-----------------------
Article X, the dates set forth in this Agreement and in the Project
Schedule and other dates for performance by WFI hereunder shall be
equitably extended for the Suspension Period, any WFI rights or
obligations under the Agreement affected by the suspension shall be
equitably adjusted and the Project Cost shall be increased to
reflect substantiated increases in the cost of performance of the
Services and any additional costs incurred by WFI arising from the
suspension.
(b) Termination. If, at the end of the specified Suspension Period,
------------
Metricom has not required a resumption of the Services or has not
notified WFI of any extension of the Suspension Period, WFI may
elect to treat the suspension as a Termination for Convenience
effective as of the commencement date of the Suspension Period, and
Metricom shall pay WFI for (i) the Services performed, (ii) those
other costs attributable to the suspension and (iii) any other
amounts payable pursuant to Article X.
Page 20 of 27
- -------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
ARTICLE XI FORCE MAJEURE
-------------
11.1 Defined. "Force Majeure" as used in this Agreement means events beyond
--------
the reasonable control of Metricom or WFI, as the case may be (an "Affected
Party"), including, but not limited to, the following events: acts of God, fire,
flood, earthquake, public disorder, war (declared or undeclared), sabotage,
governmental acts and decrees, inability to obtain or delays in obtaining
Permits, any change in Laws and Regulations, riots, labor strikes, boycotts,
work slowdowns and all other labor difficulties (whether direct or indirect),
subsurface conditions, breakdown or damage to necessary facilities or
transportation delays, hostilities or acts of terrorism, rebellion or sabotage
or damage resulting therefrom, fires, floods, explosions and accidents;
provided, however, no such event shall constitute Force Majeure in the event
such event is caused solely by the negligent or intentional acts, errors or
omissions of, or material failure to comply with any Law or Regulation by, an
Affected Party or its related and affiliated entities, or a WFI Default or an
Metricom Default, as the case may be.
(a) The more general provisions of this Section 12.1 to the contrary
notwithstanding, it is specifically agreed the following specific
events are to be treated as being, or not being, Force Majeure
events with respect to WFI, as stipulated below, for all purposes of
this Agreement:
(i) [***] shall be the responsibility of WFI and not a Force
Majeure event, except that [***] shall constitute a Force Majeure
event, and
(ii) [***] shall not be Force Majeure events.
11.2 Notice of Event. No Affected Party shall be in default under this
----------------
Agreement for failure to perform any obligation or for delay in the performance
of any obligation as a result of a Force Majeure event, with the exception of
any obligation to make payment of money due under this Agreement, provided the
Affected Party shall give written Notice to the other party of the Force Majeure
event promptly upon the Affected Party's receipt of knowledge of such event. In
the case of WFI, receipt of knowledge of such event shall occur only when such
event is brought to the attention of WFI's Representative (or any replacement of
such person or any designee of such person in such person's absence). In the
case of Metricom, receipt of knowledge of such event shall occur only when such
event is brought to the attention of Metricom's Representative (or any
replacement of such person or any designee of such person in such person's
absence). The Affected Party shall provide the other party with (i) periodic
supplemental written notices during the period of the Force Majeure regarding
any change, development, progress or other relevant information concerning the
Force Majeure event, and (ii) written Notice promptly of the termination of the
Force Majeure event. The Affected Party shall use reasonable efforts to avoid
and to minimize the effect of a Force Majeure event;
11.3 [***]. In the event [***] the parties agree, acting reasonably and in good
faith, to [***] or any other obligations of the parties under this agreement is
required. Should parties mutually agree with [***], then Metricom shall [***].
If the parties are [***].
ARTICLE XII INTELLECTUAL PROPERTY
---------------------
12.1 Title to Plans and Specifications. Drawings and specifications prepared
----------------------------------
by WFI pursuant to this Agreement, which Metricom may require WFI to supply in
accordance with the Agreement shall become the property of Metricom after
transfer of title thereto and Metricom agrees to use the information contained
therein
Page 21 of 27
<PAGE>
solely for the purpose of facilitating or completing construction, maintenance,
operation, modification and repair of the Facilities and any duplication thereof
shall be solely for Metricom's internal use, in whole or in part, and agrees not
to disclose the same or information contained therein to others for any other
purpose, without the written consent of WFI. In the event Metricom uses such
information for any other purpose, Metricom agrees to release, defend, indemnify
and hold WFI harmless from and against any liability arising out of claims or
suits asserted against WFI. Nothing herein shall be construed as limiting WFI's
ownership of all rights to use its basic know-how, experience and skills,
whether or not acquired during performance of the Services or to perform any
engineering design or other services for any other party.
12.2 Infringement. WFI shall defend, indemnify and hold Metricom and its
-------------
respective affiliates, successors, assigns, employees, agents, officers and
directors harmless from and against all damages, losses, costs and expenses
(including, but not limited to, court costs and fees and expenses of counsel)
resulting from any action brought against Metricom to the extent based on a
claim that the drawings and specifications prepared by WFI pursuant to the
Agreement infringes any patent or copyright if Metricom promptly notifies WFI of
the claim, furnishes WFI a copy of each written correspondence relating to the
claim and gives WFI authority, information and assistance (at WFI's expense)
necessary to defend or settle the claim.
12.3 Non-Disclosure Agreements. Any written agreements between WFI and
--------------------------
Metricom entered into prior to the effective date hereof relating to secrecy or
confidentiality of information exchanged between WFI and Metricom shall be
deemed incorporated herein by reference as if fully set forth in this Agreement.
The parties agree not to disclose the terms contained in this Agreement except
to the extent necessary to enable the parties to fulfill their obligations under
this Agreement.
12.4 Patents. WFI shall include, as a term or condition of each subcontract
--------
and purchase order employed by it in the performance of the Services, a patent
indemnification provision extending from the Vendor under such purchase order to
Metricom and WFI, and to render such assistance to Metricom as may be reasonably
required on a reimbursable cost basis to enforce the terms of such
indemnification by Vendors.
ARTICLE XIII DISPUTE RESOLUTION
------------------
13.1 General Disputes. In the event of a dispute between the parties arising
-----------------
under or relating to this Agreement, excluding any disputes related to Sections
12.3 and 16.6, which cannot be amicably resolved within five (5) Business Days
by the individuals appointed pursuant to Section 2.7 and Section 3.1 hereof,
such dispute shall be referred to a representative of senior management of the
parties hereto for resolution. If senior management of the parties cannot
amicably resolve the dispute within ten (10) Business Days the dispute shall be
submitted to arbitration pursuant to Section 13.2.
13.2 Disputes Involving Changes. In the event a dispute arises pursuant to
---------------------------
the provisions of Article IV, which is unresolved pursuant to Section 13.1, such
dispute shall be decided by binding arbitration with the firm of Judicial
Arbitration & Mediation Services, Inc. - Endispute ("JAMS"), acting as the sole
arbitrator in accordance with the current version of the Streamlined Arbitration
Rules and Procedures of JAMS (the "Rules"). The award is final and binding, and
no appeal may be taken on the grounds of error in the application of the law or
finding of fact. Judgment may be entered on the award, and the award may be
judicially enforced. Any other claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach thereof may, if the
parties mutually agree, be decided by mediation or arbitration by JAMS.
13.3 Waiver of Jury Trial. To the full extent permitted by law, Metricom and
---------------------
WFI hereby knowingly, voluntarily and intentionally waive any rights they may
have to a trial by jury in respect to any litigation based hereon, or arising
out of, under, or in connection with, this Agreement, or any course of conduct,
course of dealing, statements (whether oral or written) or actions of Metricom
or WFI. The parties acknowledge and agree that they have received full and
sufficient consideration for this provision and that this provision is a
material inducement for each party entering into this Agreement.
Page 22 of 27
<PAGE>
13.4 Enforcement Costs. In the event of any arbitration or litigation
------------------
arising out of or in connection with this Agreement between Metricom and WFI,
the prevailing party in such arbitration or litigation shall be paid by the
nonprevailing party the costs (including reasonable attorneys' fees and
expenses) incurred by such prevailing party in connection with such arbitration
or litigation.
ARTICLE XIV INJUNCTIVE RELIEF FOR BREACH
----------------------------
14.1 Injunctive Relief for Breach. WFI's obligations of confidentiality
-----------------------------
under the Agreement are of a unique character that gives them particular value;
breach of any of such obligations will result in irreparable and continuing
damage to Metricom for which there will be no adequate remedy at law; and, in
the event of such breach, Metricom will be entitled to seek injunctive relief
and/or a decree for specific performance and such other and further relief as
may be proper (including monetary damages if appropriate).
ARTICLE XV LIMITATION OF LIABILITY
-----------------------
15.1 Exclusion of Consequential Damages. Neither Metricom or WRI shall be
-----------------------------------
liable, in any event, for any special, indirect, incidental or consequential
damages of any nature arising at any time or from any cause whatsoever,
including specifically, but without limitation, loss of profits or revenue, loss
of use of Components or the Services, non-operation or increased expense of
operation or maintenance of Components or Services, cost of capital, interest or
cost of purchased or replacement equipment or systems.
ARTICLE XVI GENERAL PROVISIONS
------------------
16.1 Independent Contractor. WFI is and shall act as an independent
-----------------------
contractor in the performance of its obligations under this Agreement.
Notwithstanding the foregoing, both Parties acknowledge and agree that WFI
employees, during the Initial Term and any Renewal Terms, shall be working at
the direction and management of Metricom; however, WFI shall retain full control
of and supervision over its own employees. WFI's personnel performing Services
are agents, employees or subcontractors of WFI and are not employees of
Metricom. Nothing herein shall be deemed to create any other relationship
between the Parties, including, without limitation, a partnership, joint or
shared venture, employer-employee or attorney-client relation. WFI shall be
solely liable for all matters relating to compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters. WFI will honor Metricom's
request for the removal of any particular employee of WFI from the Project,
provided that Metricom has first submitted a written request to WFI setting
forth lawful and reasonable reasons for such request.
16.2 Notices. All notices pertaining to this Agreement shall be in writing
--------
and shall be sufficient when sent (i) by registered or certified mail, return
receipt requested, upon verification of receipt; (ii) by personal delivery when
delivered personally; (iii) by overnight courier upon written verification of
receipt; or (iv) by telecopy, or facsimile transmission (with oral
confirmation), at the following address or at such other address for either
party as it shall from time to time specify in a Notice to the other party which
complies with the requirement of this Section 16.2:
If to Metricom:
---------
Dale Marquart
General Counsel
Metricom, Inc.980 University Avenue
Los Gatos, CA 95032
Telephone: 408-399-8200
Fax: 408-399-8274
Page 23 of 27
- -------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
If to WFI:
----
Masood Tayebi, Ph.D. President
Wireless Facilities, Inc.
San Diego Tech Center
9805 Scranton Road, Suite 100
San Diego, CA 92121
Telephone: (619) 824-2929
Fax: (619) 824-2928
16.3 Representations and Remedies. Neither party makes any representations,
----------------------------
covenants, warranties, or guarantees, express or implied, other than those
expressly set forth herein. Nothing herein shall be construed as limiting either
party's right to any other remedies at law, including recovery of damages for
breach of the Agreement.
16.4 Solicitation of Employment. WFI and Metricom agree that, during the
---------------------------
Initial Term and any Renewal Terms of this Agreement, and for [***] after the
expiration or earlier termination of this Agreement, neither Party shall solicit
nor accept for employment any employees of the other Party who have worked on or
performed Services in connection with the Project, without first obtaining the
express written consent of the other Party.
16.5 Interpretation.
---------------
(a) Waivers and Amendments. Waiver by either Party of any default
-----------------------
hereunder by the other Party shall not be deemed a waiver of any
other default. No provision of this Agreement shall be deemed
waived, amended or modified by either Party, unless such waiver,
amendment or modification is in writing and signed by the authorized
representative of each Party.
(b) Governing Law; Consent to Jurisdiction and Venue. This Agreement
-------------------------------------------------
shall be construed in accordance with the laws of the State of
California, irrespective of its conflict of law principles. Each
Party hereby agrees to submit to the in personam jurisdiction of and
--------
consents to the laying of venue in the courts in San Diego,
California for any suit, action or proceeding between the Parties
that arises out of this Agreement or the Parties' performance of
their obligations hereunder, and expressly agrees to waive any
defense thereto.
(c) Severability. If any provision or any part of a provision of this
------------
Agreement shall be held invalid or unenforceable, then the remaining
portions of that provision and the remainder of the Agreement shall
be construed as if not containing the particular invalid or
unenforceable provision or portion thereof, and the rights and
obligations of each Party shall be construed and enforced
accordingly.
(d) Survival. The terms, conditions and warranties contained in this
---------
Agreement that by their sense and context are intended to survive
the termination or expiration of this Agreement shall so survive;
including, without limitation, the provisions of Sections 5, 9, 10,
14 and 16.
(e) Assignment. This Agreement is binding upon and inures to the
-----------
benefit of the Parties and their respective permitted successors and
assigns. A Party may assign its rights and/or delegate its duties
under this Agreement to any third party only with the prior written
consent, which shall not be unreasonable withheld, of the other
Party, except that an assignment to a third party that controls, is
controlled by, is under common control with, or
Page 24 of 27
- -------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
is the legal successor of the assigning Party shall not require the
non-assigning Party's consent provided, however, that the assignee
shall expressly assume the assigning Party's obligations hereunder
and shall be subject to all of the terms and conditions of this
Agreement. Any assignment of rights or delegation of duties under
this Agreement by a Party will not release that Party from its
obligations hereunder. Any assignment contrary to these provision
shall be null and void.
(f) Headings; Construction; Incorporation of Recitals. The headings of
--------------------------------------------------
the paragraphs of this Agreement are inserted for convenience only
and are not intended to affect its meaning or interpretation.
Throughout this Agreement, the singular shall apply to the plural
and the plural to the singular, unless the context clearly indicates
otherwise. The recitals set forth in the beginning of this Agreement
are hereby incorporated and made a material part hereof.
(g) Further Assurance. The Parties shall execute and deliver such
------------------
further documents and instruments and perform such further acts as
may be reasonably be required to carry out the intent and
purposes of this Agreement.
(h) Enforceability. Indemnities against, releases from, assumptions of
---------------
and limitations on liability expressed in this Agreement, as well as
waivers of subrogation rights, shall apply even in the event of the
fault, negligence or strict liability of the party indemnified or
released or whose liability is limited or assumed or against whom
rights of subrogation are waived and shall extend to the officers,
directors, employees, licensors, agents, partners and related
entities of such party and its partners and related entities.
(i) No Third Party Beneficiaries. The parties agree to look solely to
-----------------------------
each other with respect to the obligations and liability arising in
connection with this Agreement and the Services performed hereunder.
This Agreement and each and every provision hereof is for the
exclusive benefit of Metricom and WFI their successors and assigns
and not for the benefit of any third.
(j) Audit Rights. Metricom may audit and inspect WFI's records and
-------------
accounts covering reimbursable costs, unit rates, fixed rates, unit
prices, and time and material costs for a period of one (1) year
following the invoicing for such Services. The purpose of any such
audit shall be only for verification of such costs, and Company
shall not be required to keep records of or provide access to the
make-up of lump sums, fixed rates or amounts expressed as a
percentage of other costs.
16.6 Confidentiality. Each Party may make available ("Disclosing Party") to
----------------
the other ("Receiving Party") access to certain trade secrets and other
confidential technical, business and financial information, including the
contents of this Agreement and the Exhibits thereto (collectively, "Confidential
Information"). So long as and to the extent that Confidential Information is
clearly and identifiably marked "Confidential" or "Proprietary" (if in tangible
form) or is not generally available to the public from other sources, each Party
shall safeguard such Confidential Information in the manner in which it
safeguards its own confidential information, and shall not disclose Confidential
Information to its employees, contractors and agents, except to the extent
necessary to enable it to fulfill its obligations under this Agreement. The
Parties obligations set forth in this Section 17.8 shall not apply with respect
to any portion of the Confidential Information that the Receiving Party can
document by competent proof that such portion: (a) was in the public domain at
the time it was communicated to the Receiving Party by the Disclosing Party; (b)
entered the public domain through no fault of the Receiving Party, subsequent to
the time it was communicated to the Receiving Party by the Disclosing Party; (c)
was in Receiving Party's possession free of any obligation of confidence at the
time it was communicated to Receiving Party by Disclosing Party; (d) was
rightfully communicated to Receiving Party free of any obligation of confidence
subsequent to the time it was communicated to Receiving Party by
Page 25 of 27
<PAGE>
the Disclosing Party; (e) was developed by employees or agents of Receiving
Party independently of and without reference to any information communicated to
Receiving Party by Disclosing Party; or (f) was communicated by Disclosing Party
to an unaffiliated third party free of any obligation of confidentiality. In
addition, Receiving Party may disclose the Disclosing Party's Confidential
Information in response to a valid order by a court or other governmental body,
as otherwise required by law. All Confidential Information furnished to the
Receiving Party by the Disclosing Party is the sole and exclusive property of
the Disclosing Party or its suppliers or customers.
16.7 No Conflict of Interest. During the term of this Agreement, WFI will not
------------------------
accept work, enter into a contract, or accept an obligation from any third party
which would prevent WFI from performing its obligations under this Agreement.
16.8 Exhibit List.
-------------
Exhibit I: Statement of Work/Deliverables
Exhibit II: Project Schedule
Exhibit III: Schedule of Values
16.9 Conflicting Provisions. This Agreement, as defined in this Section
-----------------------
16.9, sets forth the full and complete understanding of the parties as of the
date first above stated, and it supersedes any and all agreements and
representations made or dated prior thereto. In the event of any conflict
between the following documents, the terms and provisions shall govern in the
following order:
(i) any Amendments or Changes then in effect, in the inverse order of
their dates of effectiveness;
(ii) this Agreement, excluding all Exhibits;
(iii) the Statement of Work, Exhibit I;
(iv) all other Exhibits.
Each party shall notify the other in writing immediately upon discovering
any conflict among the documents listed above.
16.10 Entire Agreement; Modifications. This Agreement, including the
--------------------------------
Exhibits attached hereto, constitutes the entire agreement between the Parties
with respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior and contemporaneous agreements, representations,
statements, negotiations, understandings and undertakings, whether written or
oral, are superseded by this Agreement. This Agreement may be modified only in
a written document signed by both Parties.
THE PARTIES ACKNOWLEDGE AND AGREE THE TERMS AND CONDITIONS OF THIS AGREEMENT
HAVE BEEN FREELY, FAIRLY AND THOROUGHLY NEGOTIATED. FURTHER, THE PARTIES
ACKNOWLEDGE AND AGREE SUCH TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO
THOSE RELATING TO WAIVERS, ALLOCATIONS OF, RELEASES FROM, INDEMNITIES AGAINST
AND LIMITATIONS OF LIABILITY, WHICH MAY REQUIRE CONSPICUOUS IDENTIFICATION, HAVE
NOT BEEN SO IDENTIFIED BY MUTUAL AGREEMENT AND THE PARTIES HAVE ACTUAL KNOWLEDGE
OF THE INTENT AND EFFECT OF SUCH TERMS AND CONDITIONS. EACH PARTY ACKNOWLEDGES
THAT IN EXECUTING THIS AGREEMENT THEY RELY SOLELY ON THEIR OWN JUDGMENT, BELIEF,
AND KNOWLEDGE, AND SUCH ADVICE AS THEY MAY HAVE RECEIVED FROM THEIR OWN COUNSEL,
AND THEY HAVE NOT
Page 26 of 27
<PAGE>
BEEN INFLUENCED BY ANY REPRESENTATION OR STATEMENTS MADE BY ANY OTHER PARTY OR
ITS COUNSEL. NO PROVISION IN THIS AGREEMENT IS TO BE INTERPRETED FOR OR AGAINST
ANY PARTY BECAUSE THAT PARTY OR ITS COUNSEL DRAFTED SUCH PROVISION.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
METRICOM, INC. WIRELESS FACILITIES, INC.
/s/ Dale W. Marquart /s/ Masood K. Tayebi
- -------------------------- -------------------------------
By: Dale W. Marquart By: Masood K. Tayebi
----------------------- ----------------------------
Title: General Counsel Title: President
-------------------- -------------------------
Date: 09-27-99 Date: 09-27-99
--------------------- --------------------------
Page 27 of 27
<PAGE>
EXHIBIT I
To
MASTER SERVICES AGREEMENT
Between Metricom, Inc. and Wireless Facilities, Inc.
Dated September 21, 1999
STATEMENT OF WORK FOR RF ENGINEERING
------------------------------------
Services Description:
This scope of work describes the tasks to be performed for the turnkey RF
engineering services ("RF Engineering Services"). The task descriptions
include Metricom responsibilities, WFI responsibilities, task descriptions,
and deliverables for each phase of the project.
Warranty:
In accordance with Section 6.1 of the Agreement, the WFI Warranty Period for
this Part I will be Thirty (30) Days from the date of entitlement for payment
for Punch List Complete/Site Acceptance, as defined in Exhibit III of the
Agreement.
Term of Agreement:
WFI and Metricom have executed a Master Services Agreement and this Statement
of Work, which, taken together, form an exclusive agreement between WFI and
Metricom for the provisioning of RF Engineering Services as set forth in this
Statement of Work. The exclusivity of the Agreement for RF Engineering
Services expires 30 June 2001, or upon completion of the RF Engineering
Services for an estimated three thousand [***] sites, which occurs first, at
the following rates.
1. $[***] dollars per site up to an estimate of [***] sites
2. $[***] dollars per site after [***] sites up to an estimate of [***]
sites.
Task 1 Project Initiation
- -------------------------
A. Services Description:
This task describes the mutual tasks and responsibilities for initiation of
the RF engineering.
B. WFI Responsibilities:
1. Develop RF engineering project plan and schedule
2. Load master lease site locations into RF planning database
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
Metricom Initials: _________ 1 of 5 WFI Initials: _______
- --------------------------------------------------------------------------------
* Confidential Treatment Required
<PAGE>
3. Perform with real estate representative a market specific zoning analysis
4. Engineering Training on Mapinfo and Decibel Planner
5. Order equipment and ship equipment to field offices
6. Provide trained and experienced RF engineers in each market to support
site development activities
7. Provide RF project management including reporting and scheduling
8. Provide all RF engineering field logistics support
9. Supply training facility for engineers in San Diego
10. Supply and ship all RF engineering field kit equipment including
computers, plotters, laptops, GPS, and office supplies
C. Metricom responsibilities:
1. Provide network equipment specification documentation
2. Provide friendly/bulk site databases
3. Define GSA coverage boundaries
4. Network configuration and Decibel Planner tools training
5. Design criteria including link budget
6. Terrain Databases
7. Propagation tool software (Decibel Planner)
8. Supply drive test equipment
D. Project Initiation Deliverables:
1. Training complete
2. Engineers and drive test teams in market
Task 2: Preliminary Design
A. Services Description:
This task describes the mutual responsibilities required for completing
the preliminary RF design.
B. WFI responsibilities:
1. Complete the Initial Area Survey
2. Complete the Morphology Definition
3. Tune the propagation model and perform tool adjustment
4. Perform Morphology drive testing
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
Metricom Initials: _________ 2 of 5 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
5. Develop Initial design
6. Select friendly sites for Initial design
7. Selection of Anchor Sites
8. Specify system coverage capacities
9. Visit friendly site location
10. Perform propagation analysis
11. Reset and review search rings
12. Reset cell placement for ideal sites
13. Review design with Metricom
C. Metricom Responsibilities:
1. Approve preliminary design
2. Attendance by approval representatives at the design review
D. Deliverables
1. Preliminary design review
2. Sign-off on primary design
Task 3: Initial Search Ring Release
A. Service Description:
In this task RF engineering will release search area rings to the leasing
teams.
B. WFI responsibilities:
1. Prepare initial search rings
2. Release search rings to Metricom for review
3. Release search rings to site development teams as instructed by Metricom
Metricom responsibilities:
1. Provide personnel to review and approve search rings.
D. Deliverables
1. Search Ring packages issued to leasing and zoning
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
Metricom Initials: _________ 3 of 5 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
Task 4: Field Design and Candidate Approvals:
A. Services Description:
Task 4 involves the mutual responsibilities and tasks needed for RF
engineering to approve site locations. The process is an iterative process
with all of the disciplines.
B. WFI responsibilities:
1. Visit search rings with site acquisition
2. Candidate site visit (average 2 sites per search ring)
3. Propagation analysis (average 3 sites per search ring)
4. Approve or Disapprove site location
5. Rank each submitted candidate(s) per search ring
6. Drive test and review best candidates
7. Visit site with site acquisition and construction
8. Attend site review meetings to chose the best candidate
9. Support pre-construction Studies
10. Select WAP equipment type for site
11. Provide antenna location sketches construction drawings
12. Perform link budget calculation per cell
13. Coordinate FAA/FCC Studies
14. Final construction and zoning review
15. Review construction and zoning drawings
16. If necessary, support zoning activities in the town meetings
17. Identify and solve any construction, zoning and site acquisition issues
from RF perspective.
C. Metricom responsibilities:
1. Provide approval authority and sign-off for sites
D. Deliverables:
1. RF approval and sign-off of primary candidates
2. RF candidate information forms complete
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
Metricom Initials: _________ 4 of 5 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
Task 5: Final Site Acceptance
A. Services Description:
This task describes the mutual responsibilities and tasks needed to accept
the site.
B. WFI responsibilities:
1. Visit the constructed site and review the RF equipment locations with
construction supervisor.
2. RF Acceptance and sign-off of the constructed site
3. Develop final design coverage plots
4. Prepare and create the final design review
5. Identify coverage holes and provide a proposal to correct them
C. Metricom responsibilities:
1. Provide final design approval authority
D. Deliverables:
1. Final design review
2. Delivery all site information Site Candidate Package to Metricom
3. RF site acceptance complete
This Statement of Work is an attachment to the Master Services Agreement between
Metricom, Inc. and Wireless Facilities, Inc. dated September 21, 1999. This
Statement of Work may not be modified except in writing by both Parties.
Accepted by:
Metricom, Inc. Wireless Facilities, Inc.
/s/ Dale W. Marquart /s/ Masood K. Tayebi
- ----------------------------------- -----------------------------------
By: DALE W. MARQUART By: MASOOD K. TAYEBI
------------------------------- -------------------------------
Title: GENERAL COUNSEL Title: PRESIDENT
---------------------------- ----------------------------
Date: 9-27-99 Date: 09-27-99
----------------------------- -----------------------------
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
Metricom Initials: _________ 5 of 5 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
EXHIBIT II: PROJECT SCHEDULE FOR RF ENGINEERING
- ------------------------------------------------------------------------------------------------------------------------------
4th Quarter 1st Quarter 2nd Quarter
- ------------------------------------------------------------------------------------------------------------------------------
Task Name Aug SEP OCT NOV DEC JAN FEB MAR APR MAY JUN
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Prepare and submit planning permit
application to appropriate jurisdiction
- ------------------------------------------------------------------------------------------------------------------------------
Prepare Zoning package:
- ------------------------------------------------------------------------------------------------------------------------------
Submit Zoning Package
- ------------------------------------------------------------------------------------------------------------------------------
Zoning Approval (Based on Local
Jurisdictions)
- ------------------------------------------------------------------------------------------------------------------------------
Zoning Complete
- ------------------------------------------------------------------------------------------------------------------------------
Building Permit Services
- ------------------------------------------------------------------------------------------------------------------------------
Building permit submittal documents:
- ------------------------------------------------------------------------------------------------------------------------------
A&E Drawings
- ------------------------------------------------------------------------------------------------------------------------------
Structural Analysis [***]
- ------------------------------------------------------------------------------------------------------------------------------
Apply for Building Permits
- ------------------------------------------------------------------------------------------------------------------------------
Building Permit Received
- ------------------------------------------------------------------------------------------------------------------------------
Permitting Complete
- ------------------------------------------------------------------------------------------------------------------------------
Construction Management
- ------------------------------------------------------------------------------------------------------------------------------
Site surveys
- ------------------------------------------------------------------------------------------------------------------------------
Geotechnical Studies
- ------------------------------------------------------------------------------------------------------------------------------
Construction drawings
- ------------------------------------------------------------------------------------------------------------------------------
RFQ for Construction Bid package
- ------------------------------------------------------------------------------------------------------------------------------
Order Installation of commercial power
- ------------------------------------------------------------------------------------------------------------------------------
Coordinate Ordering of Interconnect
- ------------------------------------------------------------------------------------------------------------------------------
Tower/foundation design
- ------------------------------------------------------------------------------------------------------------------------------
Order Materials
- ------------------------------------------------------------------------------------------------------------------------------
Final Construction Drawings Complete
- ------------------------------------------------------------------------------------------------------------------------------
Begin Construction
- ------------------------------------------------------------------------------------------------------------------------------
Construction Ready
- ------------------------------------------------------------------------------------------------------------------------------
Site Testing
- ------------------------------------------------------------------------------------------------------------------------------
WFI RF Approval
- ------------------------------------------------------------------------------------------------------------------------------
Punch list Complete
- ------------------------------------------------------------------------------------------------------------------------------
Metricom Acceptance
- ------------------------------------------------------------------------------------------------------------------------------
Construction Complete
- ------------------------------------------------------------------------------------------------------------------------------
Turnkey Complete
- ------------------------------------------------------------------------------------------------------------------------------
Support Zoning and Construction
- ------------------------------------------------------------------------------------------------------------------------------
Review Construction Drawings
- ------------------------------------------------------------------------------------------------------------------------------
Design: 10% will need to be redo
- ------------------------------------------------------------------------------------------------------------------------------
Final Coverage Plot and Finalizing the
Project Coverage Area
- ------------------------------------------------------------------------------------------------------------------------------
Preparation to release sites to Metricom
- ------------------------------------------------------------------------------------------------------------------------------
Optimization Complete
- ------------------------------------------------------------------------------------------------------------------------------
Site Acquisition
- ------------------------------------------------------------------------------------------------------------------------------
Phase 1 - Identify Site Candidates
- ------------------------------------------------------------------------------------------------------------------------------
Visit Ring with RF
- ------------------------------------------------------------------------------------------------------------------------------
Confirm Landlord willingness to lease
- ------------------------------------------------------------------------------------------------------------------------------
Deliver standard lease and info package [***]
to landlord
- ------------------------------------------------------------------------------------------------------------------------------
Prepare and Submit Candidate Ranking
Package:
- ------------------------------------------------------------------------------------------------------------------------------
Address and Contact Info
- ------------------------------------------------------------------------------------------------------------------------------
Photos and Maps
- ------------------------------------------------------------------------------------------------------------------------------
Property data and Zoning Information
- ------------------------------------------------------------------------------------------------------------------------------
Site Review and Coordination
- ------------------------------------------------------------------------------------------------------------------------------
Site Tests
- ------------------------------------------------------------------------------------------------------------------------------
Team visit to select and finalize sites:
- ------------------------------------------------------------------------------------------------------------------------------
Landlord Meetings
- ------------------------------------------------------------------------------------------------------------------------------
Phase 2 Lease Acquisition
- ------------------------------------------------------------------------------------------------------------------------------
Title Search for candidate sites
- ------------------------------------------------------------------------------------------------------------------------------
Legal review of Lease
- ------------------------------------------------------------------------------------------------------------------------------
Environmental studies
- ------------------------------------------------------------------------------------------------------------------------------
Prepare Lease Exhibits
- ------------------------------------------------------------------------------------------------------------------------------
Coordinates site diagrams
- ------------------------------------------------------------------------------------------------------------------------------
Prepare lease package and File
close-out
- ------------------------------------------------------------------------------------------------------------------------------
Signed Lease
- ------------------------------------------------------------------------------------------------------------------------------
Site Acquisition Complete
- ------------------------------------------------------------------------------------------------------------------------------
Site Acquisition Complete
- ------------------------------------------------------------------------------------------------------------------------------
Zoning Approvals
- ------------------------------------------------------------------------------------------------------------------------------
Conduct Preliminary Investigation
- ------------------------------------------------------------------------------------------------------------------------------
Physical Review of Area
- ------------------------------------------------------------------------------------------------------------------------------
Prepare Initial Zoning Analysis Binder
- ------------------------------------------------------------------------------------------------------------------------------
Metricom TurnKey Project R2
- ------------------------------------------------------------------------------------------------------------------------------
System Requirements
- ------------------------------------------------------------------------------------------------------------------------------
Establish Site Selection criteria
- ------------------------------------------------------------------------------------------------------------------------------
Turnkey Deployment
- ------------------------------------------------------------------------------------------------------------------------------
RF Design
- ------------------------------------------------------------------------------------------------------------------------------
Establish Design Objectives
- ------------------------------------------------------------------------------------------------------------------------------
Review coverage objectives and site
criteria
- ------------------------------------------------------------------------------------------------------------------------------
RF Preliminary Design
- ------------------------------------------------------------------------------------------------------------------------------
Initial Area Survey
- ------------------------------------------------------------------------------------------------------------------------------
Morphology Definition
- ------------------------------------------------------------------------------------------------------------------------------
Morphology Drive Test (assume 5 per
market)
- ------------------------------------------------------------------------------------------------------------------------------
Propagation Tool Adjustment
- ------------------------------------------------------------------------------------------------------------------------------
Visit Friendly Site Location
- ------------------------------------------------------------------------------------------------------------------------------
Select Friendly Sites for Initial
Design (Anchor sites)
- ------------------------------------------------------------------------------------------------------------------------------
Run Propagation Analysis
- ------------------------------------------------------------------------------------------------------------------------------
Reset Cell Placement (ideal sites) and [***]
rerun
- ------------------------------------------------------------------------------------------------------------------------------
System Coverage Maps
- ------------------------------------------------------------------------------------------------------------------------------
Review Design with Client
- ------------------------------------------------------------------------------------------------------------------------------
Prepare Initial Search Ring
- ------------------------------------------------------------------------------------------------------------------------------
Release Search Rings to Client
- ------------------------------------------------------------------------------------------------------------------------------
RF Field Design and Optimization
- ------------------------------------------------------------------------------------------------------------------------------
Visit Rings with SA
- ------------------------------------------------------------------------------------------------------------------------------
Candidate Site Visit (average 2 per
ring)
- ------------------------------------------------------------------------------------------------------------------------------
Propagation Analysis (average 3 per
ring)
- ------------------------------------------------------------------------------------------------------------------------------
Rank Each Submitted Candidates per ring
- ------------------------------------------------------------------------------------------------------------------------------
Drive Test and Review Best Candidates
- ------------------------------------------------------------------------------------------------------------------------------
Visit site with all disciplines
- ------------------------------------------------------------------------------------------------------------------------------
Final Meeting to Chose the Best
Candidate
- ------------------------------------------------------------------------------------------------------------------------------
Select Equipment Type for Site
- ------------------------------------------------------------------------------------------------------------------------------
Locate Equipment on Site for
Construction Drawing
- ------------------------------------------------------------------------------------------------------------------------------
Perform Link Budget Calculation per Cell
- ------------------------------------------------------------------------------------------------------------------------------
FAA/FCC Capital Corporation Studies (if
necessary)
- ------------------------------------------------------------------------------------------------------------------------------
Study for construction or zoning
- ------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter
- ------------------------------------------------------------------------------------------
Task Name JUL AUG SEP OCT NOV DEC JAN FEB MAR
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Prepare and submit planning permit
application to appropriate jurisdiction
- ------------------------------------------------------------------------------------------
Prepare Zoning package:
- ------------------------------------------------------------------------------------------
Submit Zoning Package
- ------------------------------------------------------------------------------------------
Zoning Approval (Based on Local
Jurisdictions)
- ------------------------------------------------------------------------------------------
Zoning Complete
- ------------------------------------------------------------------------------------------
Building Permit Services
- ------------------------------------------------------------------------------------------
Building permit submittal documents:
- ------------------------------------------------------------------------------------------
A&E Drawings
- ------------------------------------------------------------------------------------------
Structural Analysis
- ------------------------------------------------------------------------------------------
Apply for Building Permits
- ------------------------------------------------------------------------------------------
Building Permit Received
- ------------------------------------------------------------------------------------------
Permitting Complete
- ------------------------------------------------------------------------------------------
Construction Management
- ------------------------------------------------------------------------------------------
Site surveys
- ------------------------------------------------------------------------------------------
Geotechnical Studies
- ------------------------------------------------------------------------------------------
Construction drawings
- ------------------------------------------------------------------------------------------
RFQ for Construction Bid package
- ------------------------------------------------------------------------------------------
Order Installation of commercial power
- ------------------------------------------------------------------------------------------
Coordinate Ordering of Interconnect
- ------------------------------------------------------------------------------------------
Tower/foundation design
- ------------------------------------------------------------------------------------------
Order Materials
- ------------------------------------------------------------------------------------------
Final Construction Drawings Complete
- ------------------------------------------------------------------------------------------
Begin Construction
- ------------------------------------------------------------------------------------------
Construction Ready
- ------------------------------------------------------------------------------------------
Site Testing
- ------------------------------------------------------------------------------------------
WFI RF Approval
- ------------------------------------------------------------------------------------------
Punch list Complete
- ------------------------------------------------------------------------------------------
Metricom Acceptance
- ------------------------------------------------------------------------------------------
Construction Complete
- ------------------------------------------------------------------------------------------
Turnkey Complete
- ------------------------------------------------------------------------------------------
Support Zoning and Construction
- ------------------------------------------------------------------------------------------
Review Construction Drawings
- ------------------------------------------------------------------------------------------
Design: 10% will need to be redo
- ------------------------------------------------------------------------------------------
Final Coverage Plot and Finalizing the
Project Coverage Area
- ------------------------------------------------------------------------------------------
Preparation to release sites to Metricom
- ------------------------------------------------------------------------------------------
Optimization Complete
- ------------------------------------------------------------------------------------------
Site Acquisition
- ------------------------------------------------------------------------------------------
Phase 1 - Identify Site Candidates
- ------------------------------------------------------------------------------------------
Visit Ring with RF
- ------------------------------------------------------------------------------------------
Confirm Landlord willingness to lease
- ------------------------------------------------------------------------------------------
Deliver standard lease and info package
to landlord
- ------------------------------------------------------------------------------------------
Prepare and Submit Candidate Ranking
Package:
- ------------------------------------------------------------------------------------------
Address and Contact Info
- ------------------------------------------------------------------------------------------
Photos and Maps
- ------------------------------------------------------------------------------------------
Property data and Zoning Information
- ------------------------------------------------------------------------------------------
Site Review and Coordination
- ------------------------------------------------------------------------------------------
Site Tests
- ------------------------------------------------------------------------------------------
Team visit to select and finalize sites:
- ------------------------------------------------------------------------------------------
Landlord Meetings
- ------------------------------------------------------------------------------------------
Phase 2 Lease Acquisition
- ------------------------------------------------------------------------------------------
Title Search for candidate sites
- ------------------------------------------------------------------------------------------
Legal review of Lease
- ------------------------------------------------------------------------------------------
Environmental studies
- ------------------------------------------------------------------------------------------
Prepare Lease Exhibits
- ------------------------------------------------------------------------------------------
Coordinates site diagrams
- ------------------------------------------------------------------------------------------
Prepare lease package and File
close-out
- ------------------------------------------------------------------------------------------
Signed Lease
- ------------------------------------------------------------------------------------------
Site Acquisition Complete
- ------------------------------------------------------------------------------------------
Site Acquisition Complete
- ------------------------------------------------------------------------------------------
Zoning Approvals
- ------------------------------------------------------------------------------------------
Conduct Preliminary Investigation
- ------------------------------------------------------------------------------------------
Physical Review of Area
- ------------------------------------------------------------------------------------------
Prepare Initial Zoning Analysis Binder
- ------------------------------------------------------------------------------------------
Metricom TurnKey Project R2
- ------------------------------------------------------------------------------------------
System Requirements
- ------------------------------------------------------------------------------------------
Establish Site Selection criteria
- ------------------------------------------------------------------------------------------
Turnkey Deployment
- ------------------------------------------------------------------------------------------
RF Design
- ------------------------------------------------------------------------------------------
Establish Design Objectives
- ------------------------------------------------------------------------------------------
Review coverage objectives and site
criteria
- ------------------------------------------------------------------------------------------
RF Preliminary Design
- ------------------------------------------------------------------------------------------
Initial Area Survey
- ------------------------------------------------------------------------------------------
Morphology Definition
- ------------------------------------------------------------------------------------------
Morphology Drive Test (assume 5 per
market)
- ------------------------------------------------------------------------------------------
Propagation Tool Adjustment
- ------------------------------------------------------------------------------------------
Visit Friendly Site Location
- ------------------------------------------------------------------------------------------
Select Friendly Sites for Initial
Design (Anchor sites)
- ------------------------------------------------------------------------------------------
Run Propagation Analysis
- ------------------------------------------------------------------------------------------
Reset Cell Placement (ideal sites) and
rerun
- ------------------------------------------------------------------------------------------
System Coverage Maps
- ------------------------------------------------------------------------------------------
Review Design with Client
- ------------------------------------------------------------------------------------------
Prepare Initial Search Ring
- ------------------------------------------------------------------------------------------
Release Search Rings to Client
- ------------------------------------------------------------------------------------------
RF Field Design and Optimization
- ------------------------------------------------------------------------------------------
Visit Rings with SA
- ------------------------------------------------------------------------------------------
Candidate Site Visit (average 2 per
ring)
- ------------------------------------------------------------------------------------------
Propagation Analysis (average 3 per
ring)
- ------------------------------------------------------------------------------------------
Rank Each Submitted Candidates per ring
- ------------------------------------------------------------------------------------------
Drive Test and Review Best Candidates
- ------------------------------------------------------------------------------------------
Visit site with all disciplines
- ------------------------------------------------------------------------------------------
Final Meeting to Chose the Best
Candidate
- ------------------------------------------------------------------------------------------
Select Equipment Type for Site
- ------------------------------------------------------------------------------------------
Locate Equipment on Site for
Construction Drawing
- ------------------------------------------------------------------------------------------
Perform Link Budget Calculation per Cell
- ------------------------------------------------------------------------------------------
FAA/FCC Capital Corporation Studies (if
necessary)
- ------------------------------------------------------------------------------------------
Study for construction or zoning
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT III
TO
MASTER SERVICES AGREEMENT
BETWEEN METRICOM, INC. AND WIRELESS FACILITIES, INC.
DATED SEPTEMBER 21, 1999
RF ENGINEERING SCHEDULE OF VALUES
PART I-PRICE SCHEDULE
WFI and Metricom have executed a Master Services Agreement that is exclusive
between WFI and Metricom for all RF engineering services as follows:
1. [***] dollars per site up to an estimate of [***] sites
2. [***] dollars per site after [***] sites up to an estimate of [***]
sites.
The Exclusivity Agreement for RF engineering expires 30 June, 2001, or after
completion of RF engineering Services as set forth in Exhibits I for an estimate
of [***] sites, whichever occurs first.
PART II-MILESTONE PAYMENT SCHEDULE
<TABLE>
<CAPTION>
RF ENGINEERING MILESTONE PAYMENT SCHEDULE
- -----------------------------------------------------------------------------------------------------------------
NO. MILESTONE PCT DELIVERABLE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Project Set-up and Initiation [***] [***]
2 Preliminary Design Approval [***] [***]
3 Search Rings Issued [***] [***]
4 Primary Candidate Approvals [***] [***]
5 Final Site Configurations [***] [***]
6 Punch List Complete/Site Acceptance [***] [***]
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
CONDITIONS
<S> <C> <C>
Milestone one: Project Set-up and Initiation [***]
Milestone two: Preliminary Design Approval [***]
Milestone three: Search Rings Issued [***]
Milestone four: Primary Candidate Approvals [***]
</TABLE>
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 1 of 3
- -----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
PART III-PROFESSIONAL SERVICES HOURLY RATES
The hourly rates set forth below shall apply to all Services performed by WFI
that are in addition to those described in the Statement of Work. Metricom
shall compensate WFI on an hourly basis in accordance with the rates set forth
in the table below. WFI may invoice Metricom monthly for all hourly-billed
Services rendered the previous period.
1. These hourly rates do not include expenses or taxes.
<TABLE>
<CAPTION>
WIRELESS FACILITIES, INC.
1999 Hourly Services Rates
- --------------------------------------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate Monthly Rate
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Program Management 1 Project Manager $[***] $[***]
2 Project Coordinator $[***] $[***]
3 Administrative Assistant $[***] $[***]
RF Engineering 4 Principal Engineer $[***] $[***]
5 Senior Engineer $[***] $[***]
6 Design Engineer $[***] $[***]
7 Engineer $[***] $[***]
8 Associate Engineer $[***] $[***]
9 Technician $[***] $[***]
Network Engineering 10 Principal Engineer $[***] $[***]
11 Senior Engineer $[***] $[***]
12 Design Engineer $[***] $[***]
13 Engineer $[***] $[***]
14 Associate Engineer $[***] $[***]
15 Technician $[***] $[***]
Site Acquisition 16 Leasing Manager $[***] $[***]
17 Zoning Manager $[***] $[***]
18 Site Acquisition Specialist $[***] $[***]
19 Zoning Specialist $[***] $[***]
20 Paralegal $[***] $[***]
Construction Management 21 CM Construction Manager $[***] $[***]
22 CM Operations Manager $[***] $[***]
23 CM Construction Engineer $[***] $[***]
24 CM Project Coordinator $[***] $[***]
25 CM Utility Coordinator $[***] $[***]
26 CM Field Supervisor $[***] $[***]
Installation & Maintenance 27 Cell-site Engineer $[***] $[***]
28 Switch Engineer $[***] $[***]
29 Engineer Supervisor $[***] $[***]
30 Sr. Installer $[***] $[***]
31 Installer $[***] $[***]
Documentation 32 Document Controls Supervisor $[***] $[***]
33 Document Controls $[***] $[***]
Logistics 34 Logistics Manager $[***] $[***]
GIS 35 GIS Manager $[***] $[***]
36 GIS Specialist $[***] $[***]
Business Consulting 37 Sr. Partner $[***] $[***]
38 Partner $[***] $[***]
39 Director $[***] $[***]
40 Business Consultant $[***] $[***]
Advanced Technology 41 Principal Staff Engineer $[***] $[***]
42 Sr. Staff Engineer $[***] $[***]
43 Staff Engineer $[***] $[***]
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 2 of 3
- -----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
PART IV-ADDITIONAL EXPENSES
Expense Summary
- ---------------
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses. WFI may invoice Metricom
bi-weekly for reimbursable pass-through expenses.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
WFI Metricom Provided or
Included Reimbursed to WFI as
Pass-Through expenses
<S> <C> <C>
Expense Summary:
- ----------------
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Cellular Phones/Pagers [***] [***]
Cellular/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware computer and plotter) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
EXPENSES INCLUDED IN OFFICE SPACE (See Note (1)
- ------------------------------------------------
Telephone/FAX Service (local/long distance) (1) [***] [***]
Office Rent, Furniture & Equipment (1) [***] [***]
Utilities (1) [***] [***]
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
Note(1): Office Space will be compensated at a rate of $[***] per square foot
per month, said rate will be subject to negotiation by Metricom and WFI based on
demonstrated and substantial increased actual cost in a specific market.
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 3 of 3
- ---------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
EXHIBIT I-A
to
MASTER SERVICES AGREEMENT
Between Metricom, Inc. and Wireless Facilities, Inc.
Dated September 21, 1999
STATEMENT OF WORK RFP #AB-003
Part I: Site Acquisition Scope of Work
- --------------------------------------
Overview:
Part I of this document describes the tasks and responsibilities of Metricom
and the Contractor to lease WAP sites.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part I will be [***] Days from the date of entitlement for
payment for lease signed, as defined in Exhibit III of the Agreement.
Part I: Task 1- Site Identification
A. Services Description:
After RF preliminary design approval and upon the Metricom release of search
areas, this task defines the responsibilities of each party to identify
potential sites.
Note that Metricom typically has utilized only existing structures for its WAP
sites (i.e., only existing buildings, water towers, communications sites, or
other similar type structures). Therefore, raw land sites upon which Metricom
would be required to build towers would not be considered except in the most
exceptional of circumstances.
B. Contractor Responsibilities
1. Upon the release of search areas, the Contractor shall meet with the WFI
RF Engineer and LGRPA and review coverage objectives and minimum
criteria for each search area.
2. The Contractor shall conduct a physical review of the search area and
identify up to three (3) potential WAP site candidates, which meet the
minimum requirements as defined by Metricom.
3. The Contractor shall make contact with the owner(s) of the potential
sites and confirm with the owner(s) a willingness to Lease the property
to Metricom for the purpose of locating a WAP facility.
4. The Contractor shall deliver to the owner(s) an information package
containing WAP facility siting information and a copy of the Metricom
standard Lease agreement.
5. The Contractor shall prepare and submit a site candidate ranking package
("Candidate Package") for each site (containing the address,
owner/contact information, photos, maps, property data and zoning
information), in a format approved by Metricom, to the RF Manager and
LGRPA for evaluation.
6. The contractor shall coordinate with the building owner, on an as needed
basis, to facilitate access for RF Engineering personnel for drive
testing operations.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit 1-A to Master Services Agreement dated 09/21/99
Metricom Initials: ______________ 1 of 20 WFI Initials: _____________
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
7. Approval of a candidate site shall serve as the Contractor's notice to
proceed with all site development activity (leasing, zoning,
construction management, interconnect management and installation)
provided an Authorization to Proceed to Zoning has been received on each
WAP Site from the local LGRPA.
8. Upon approval of the candidate site, the Contractor shall be required,
at Metricom's discretion, to negotiate a Lease agreement, which meets
Metricom's legal and pricing requirements.
C. Metricom Responsibilities:
1. Issue search areas to Contractor along with issuing to Contractor its
Notice to Proceed with the Statement of Work under Section 2.3 of the
Agreement.
2. Provide L GRPA contact to approve coverage objective and minimum search
criteria for each search area.
3. Provide copy of Metricom standard lease agreement, legal and pricing
requirements
D. Deliverables:
1. Candidate Package - The Contractor shall prepare and submit a site
candidate ranking package ("Candidate Package") for each site
(containing the address, owner/contact information, photos, maps,
property data and zoning information), in a format approved by Metricom,
to the RF Manager and LGRPA for evaluation.
Part I: Task 2- Site Review & Coordination Activities
A. Services Description:
The Contractor shall schedule site visits whereby the appropriate
disciplines will evaluate the site candidate(s) to select and prioritize the
RF approved sites.
B. Contractor Responsibilities:
1. The Contractor shall work directly with the WFI RF Engineer and assist
in selecting and prioritizing acceptable sites from the candidate list.
2. The Contractor shall be required to coordinate site visits, landlord
meetings and site tests as required. The selection of sites shall be
based on terrain, zoning, RF, construction feasibility, cost, permitting
and environmental requirements.
3. The site review process will result in 3 outcomes for a candidate site:
a. Candidate Unconditionally Approved-A candidate site that has been
unconditionally approved by the WFI RF engineer and that meets
Metricom's leasing terms and construction requirements.
b. Candidate Conditionally Approved - A candidate site that requires
further investigation to determine whether it will be
unconditionally approved or rejected.
c. Candidate Rejected - A candidate site that does not meet the RF
design parameters and/or cannot meet acceptable Metricom business
terms/construction requirements. The person(s) who reject the
candidate will clearly describe on the Candidate Review Form the
reason for the rejection.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit 1-A to Master Services Agreement dated 09/21/99
Metricom Initials: ______________ 2 of 20 WFI Initials: _____________
- --------------------------------------------------------------------------------
<PAGE>
. Unconditional approval of a site candidate will serve as
Metricom's Notice to Proceed ("NTP") to Contractor for leasing,
zoning, (including parallel processing of leasing and zoning
tasks) construction management and installation.
4. Each discipline in the GSA (i.e., the Contractor, WFI RF Engineer and
LGRPA) shall meet the following Candidate Review and Response Times:
a. Unconditional Approval: [*] Business Days from the date of
submission of the candidate package by Contractor.
b. Resolution of Issues for Conditional Approval or Rejection: [*]
additional Business Days (for a total of [*] business days from date
of submission of a candidate package by Contractor).
5. The Contractor's Project Manager in charge of the GSA will be
responsible for coordinating and mediating between RF Engineering, Real
Estate, Construction and LGRPA disciplines to select the primary
candidate.
6. Difficult Search Areas - In the event sites are not identified for a
search area that meet the required criteria, the Contractor shall be
required to report what sites are available and work with the WFI RF
Engineer and LGRPA to find the best site for the search area or redesign
the search area. It is the Contractors responsibility to issue a written
notice to Metricom LGRPA.
C. Metricom Responsibilities:
1. The LGRPA is Metricom's oversight person for this process and has sole
authority, in accordance with the WAP Decision Matrix, to approve
business terms that are outside of Metricom's specified parameters.
2. The Contractor's Project Manager will direct issues that cannot be
resolved in the GSA to the Metricom LGRPA.
3. Each discipline in the GSA (i.e., the Contractor, WFI RF Engineer,
Metricom LGRPA) shall meet the following Candidate Review and Response
Times:
a. Unconditional Approval: [*] Business Days from the date of
submission of the candidate package by Contractor.
b. Resolution of Issues for Conditional Approval or Rejection: [*]
additional Business Days (for a total of [*] business days from
date of submission of a candidate package by Contractor).
4. Difficult Search Areas - In the event sites are not identified for a search
area that meet the required criteria, the Contractor shall be required to
report what sites are available and work with the WFI RF Engineer and LGRPA
to find the best site for the search area or redesign the search area. In
this case it is Metricom's responsibility to acknowledge the notice.
D. Deliverables:
1. Update Site Candidate Package
2. Search Ring Package
3. Candidate Review Form
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit 1-A to Master Services Agreement dated 09/21/99
Metricom Initials: ______________ 3 of 20 WFI Initials: _____________
- --------------------------------------------------------------------------------
* Confidential treatment requested.
<PAGE>
Part I: Task 3- Lease Acquisition
A. Services Description:
Task 3 describes the process and mutual responsibilities to obtain leases
for Metricom Sites. Also the interaction between all of the disciplines and
responsible authorities for approving the leases is addressed.
B. Contractor Responsibilities:
1. The Contractor shall negotiate the terms and conditions of the Metricom
standard Lease with the site owner in accordance with Metricom's
Standard pricing and legal requirements.
2. The Contractor shall deliver a formal Lease agreement signed by the
property owner(s) or their legal representative(s) and a Letter of
Authorization (permission to file a zoning application) for the priority
one candidate in each search area.
3. Title Search: As a general rule, Metricom will require a title search on
all sites requiring new tower construction and/or sites requiring
excavation and/or trenching for the placement of the WAP cabinet and
power and telco. Metricom will require a title search on an as-needed
basis only
a. If needed, The Contractor shall order the title search and
deliver a copy of the results to Metricom as directed by
Metricom.
b. If needed, the Contractor shall order a title search as directed
by Metricom on an exception basis for all other site types.
4. Legal Assistance: The Contractor shall supply legal review personnel for
each of the markets in which Contractor is supplying WAP site
development services.
a. Contractor's legal review personnel shall use their best efforts
to assist Contractor and Metricom in obtaining agreements in
accordance with Metricom's guidelines.
b. Contractor and Metricom shall agree upon the procedures for
Metricom's review and approval of License Agreements that are
outside such guidelines.
c. Contractor shall be responsible for the performance and
turnaround times of its legal reviewers.
C. Metricom Responsibilities:
1. Title Search:
a. Metricom shall review and approve all title search documents.
b. The cost of title reports shall be borne by Metricom.
2. Legal Assistance:
a. Metricom shall provide the standard Lease and legal guidelines
for Lease negotiations to the Contractor.
b. Metricom shall provide guidelines for negotiating non-standard
agreements.
3. Contractor and Metricom shall agree upon the procedures for Metricom's
review and approval of Lease Agreements that are outside such
guidelines.
4. Metricom shall be responsible for the performance and turnaround times
of its legal reviewers.
D. Deliverables
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit 1-A to Master Services Agreement dated 09/21/99
Metricom Initials: ______________ 4 of 20 WFI Initials: _____________
- --------------------------------------------------------------------------------
<PAGE>
1. Update Site Candidate Package:
a. Signed Lease or Lease Option Documentation
b. Title search
Part I: Task 4- Environmental Studies
A. Services Description:
When the need occurs, Task 4 explains the process and mutual
responsibilities of working with Metricom to order environmental studies.
However, Contractor should avoid any and all sites requiring NEPA
certification and/or Phase 1 Review unless no other qualified sites are
available and only after discussion with local LGRPA.
B. Contractor Responsibilities:
1. The Contractor shall order environmental studies (typically limited to
NEPA Compliance Review and Phase 1 Environmental Review) from Metricom
approved vendors where required by the site criteria guidelines issued
approved by Metricom.
2. Identify sites where environmental studies are needed and communicate to
Metricom.
3. Receive authorization by Metricom to proceed with environmental studies.
C. Metricom Responsibilities:
1. Approval to proceed, within two business days, with the initiation of
environmental studies.
2. Provide Legal guidelines and practices for Environmental Studies in each
market.
3. Provide approval of authorized NEPA consultants.
4. The cost of environmental studies shall be borne by Metricom.
D. Deliverables:
1. An original copy of the results of the Phase 1 or II study
Part I: Task 5- Lease Exhibits
A. Services Description:
Obtain and/or create Exhibits A and B to the lease or license agreement for each
WAP site.
Exhibit A is defined as the description of the property on which the WAP site
will be located.
Exhibit B is defined as the depiction of Metricom's leased premises for each WAP
site
B. Contractor Responsibilities:
1. The Contractor shall prepare a legal description for the candidate site
meeting the local recording office's requirements for legal descriptions
on recorded documents (if permitted by cutting and pasting the legal
description from the title-vesting document or by carefully typing
---------
same).
2. The Contractor shall prepare or cause the Architect to prepare a site
diagram including the equipment and antenna configuration to be used as
Exhibit B to the lease and/or for use by other disciplines. Contractor
shall coordinate with the WFI RF Engineer for their approval of the
diagram.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit 1-A to Master Services Agreement dated 09/21/99
Metricom Initials: ______________ 5 of 20 WFI Initials: _____________
- --------------------------------------------------------------------------------
<PAGE>
3. The Contractor shall also obtain, where possible, current as-built
drawings from the landowner to aid in site design and engineering.
C. Metricom Responsibilities:
1. Site equipment layout specification guidelines.
2. Coordinate with Metricom LGRPA, Zoning and A&E personnel proper
drawings for zoning submittal package.
3. Cost of reproduction of existing as built drawings will be borne by
Metricom
D. Deliverables:
1. Lease Exhibits A and B.
Part I: Task 6- Tracking and Reporting
A. Services Description:
This task describes the mutual responsibilities required to track and record the
progress on the project.
B. Contractor Responsibilities:
1. Obtain weekly report format or forms required by Metricom.
2. Maintain current and timely reporting and records of each site
specific data as required and specified by Metricom.
3. Coordinate and manage Weekly meetings to review site status tracking.
C. Metricom Responsibilities:
1. Provide weekly report format or forms required by Metricom.
2. LGRPA will attend Weekly meetings to review site status tracking.
D. Deliverables:
1. Weekly Status Meeting.
2. Site Information Package Updates
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 6 of 20 WFI Initials: _________
- --------------------------------------------------------------------------------
<PAGE>
Part I: Task 7- Lease Package and File Close-out
A. Services Description:
This task describes the responsibility of preparing a Lease Package
Documentation Checklist:
B. Contractor Responsibilities:
1. Obtain Three originally signed copies of an approved WAP Lease
agreement signed by a duly authorized representative (per Metricom's
guidelines) of the landlord, Lease summary form, exhibits, title and
environmental reports, draft agreements, photos, maps, correspondence,
a comprehensive negotiator's report, and any other items.
C. Metricom Responsibilities:
1. Format to be provided by Metricom on the Metricom WAP File
Documentation Checklist
D. Deliverables:
1. Obtain Three originally signed copies of an approved WAP Lease
agreement signed by a duly authorized representative (per Metricom's
guidelines) of the landlord, Lease summary form, exhibits, title and
environmental reports, draft agreements, photos, maps, correspondence,
a comprehensive negotiator's report, and any other items.
Part II: Zoning Approvals Scope of Work
- ---------------------------------------
Services Description:
Part II describes the necessary tasks and mutual responsibilities to obtain
zoning for the WAP sites.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part II will be [***] Days from the date of entitlement for
payment for zoning approved, as defined in Exhibit III of the Agreement.
Part II: Task 1- Preliminary Investigation:
A. Services Description:
In this task, the contractor works closely with RF Engineering, Site
Acquisition, and Construction to determine the zoning requirements.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 7 of 20 WFI Initials: _________
- --------------------------------------------------------------------------------
* Confidential treatment requested.
<PAGE>
B. Contractor Responsibilities:
1. The Contractor shall obtain any and all required approvals or zoning
variances from all jurisdictions necessary to legally operate the
proposed WAP facility on the selected site.
2. The Contractor shall conduct a physical review of the search area with
all site development disciplines and provide input to determine the
priority one candidate.
3. The Contractor shall review search areas with the WFI RF Engineer to
review minimum criteria for each search area.
4. If no approvals are required, the Contractor shall provide
satisfactory evidence thereof
5. The Contractor shall visit the local zoning jurisdiction and interpret
codes and planning criteria for the search area to determine any fast-
track permit possibilities.
6. The Contractor shall coordinate all activities associated with zoning
applications, meetings and community relations.
7. The Contractor will represent Metricom at up up to [***] required
public meetings and/or hearings and conduct presentations as required.
8. Zoning Analysis and Strategy:
a. The Contractor will develop a detailed zoning analysis of
all selected sites.
b. The analysis will be site specific and will include but not
be limited to: fees, height restrictions, building codes,
setbacks, exceptions, zoning history, abutter issues, zoning
process, timelines, methods to expedite the standard zoning
process and other pertinent zoning requirements.
c. The Contractor will submit these findings in the WAP
Specific Zoning Analysis form.
d. Together with the LGRPA shall develop a zoning strategy for
the candidate site.
C. Metricom Responsibilities:
1. Provide LGRPA representative for strategy support and approvals.
2. Provide zoning report format
3. Metricom to approve and bear the costs for expert testimony/lobbyists
D. Deliverables:
1. Zoning ordinance process definition.
2. Detailed WAP Specific Zoning Analysis of all selected sites.
Part II: Task 2- Site Identification/Approval:
A. Services Description:
This task describes the mutual responsibilities and interaction
between all of the site development disciplines in providing input to
determine the priority one candidates.
B. Contractor Responsibilities:
1. The Contractor will perform site walks with RF Engineering,
Construction, and Leasing, and with Architect representative.
a. .
2. Applications
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 8 of 20 WFI Initials: _________
- --------------------------------------------------------------------------------
* Confidential treatment requested.
<PAGE>
a. The Contractor shall prepare and submit the planning permit
application(s) (if required) to the appropriate
jurisdiction(s), including procurement of all associated
reports, photographs and other required visual
representations.
3. Environmental Assessments
a. The Contractor shall coordinate any activities required by
Metricom or the local jurisdiction for Phase I Environmental
Assessment or other applicable environmental compliance
(e.g., NEPA compliance) required to obtain zoning approval
of a candidate property.
b. The Contractor shall order environmental studies from
vendors approved by Metricom where required by the site
criteria guidelines issued approved by Metricom and deliver
a copy of the results to Metricom.
4. Site Plans:
a. The Contractor shall coordinate the generation of required
zoning drawings and modifications form architectural and
engineering firms approved by Metricom.
b. In addition, the Contractor will be responsible for
coordinating and obtaining the Property Owners' approval of
all final zoning plans.
5. The Contractor shall coordinate all activities associated with zoning
applications, meetings and community relations.
6. The Contractor will represent Metricom at up to [***] required public
meetings and/or hearings and conduct presentations as required.
C. Metricom Responsibilities:
1. Metricom will provide the application fee upon submittal of a check
request from the Contractor.
2. Metricom will review and approve any environmental studies.
3. The cost of environmental studies, visual representations, and other
materials required to submit the zoning applications shall be borne by
Metricom.
4. The cost of drawings, site plans, photo simulations and other visual
representations must be pre-authorized by Metricom and will be borne
by Metricom.
5. Approval of Architectural and Engineering firms necessary to meet the
schedule.
D. Deliverables:
1. Site Plans
2. Zoning application or determination letter.
3. Zoning approval, determination or Contractor's written analysis that
Metricom's use is permitted by right.
Part II: Task 3- Tracking and Reporting:
A. Services Description:
This describes the mutual tracking and reporting responsibilities of the
permitting process.
B. Contractor Responsibilities:
1. Zoning Coordination:
a. The Contractor shall track the permit application schedule
to assure planning approval deadlines are met.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ PWM 9 of 20 WFI Initials: /s/ DT
- --------------------------------------------------------------------------------
* Confidential treatment requested.
<PAGE>
b. In addition, the Contractor shall manage any outside
lobbyists and/or attorneys, approved in advance by Metricom
in its sole discretion, necessary to assist in obtaining
zoning approvals.
2. Zoning Package and File Close-out:
a. The Contractor shall prepare a Zoning Package (format to be
provided by Metricom) which includes, either:
1. Convincing written evidence that Metricom may
install its WAP by right, or
2. A document evidencing the formal approval of the
appropriate jurisdiction(s) (whether through an
administrative approval process or otherwise) with
zoning conditions acceptable to Metricom, copies
of all correspondence, photos, photo simulations,
applications, conditions, staff reports, plans,
drawings, contacts, agendas and other pertinent
information, a comprehensive negotiator's report,
and any other items as detailed on Metricom's
Zoning File Documentation Checklist.
3. In addition, the Contractor will complete the
Metricom WAP Zoning File Documentation Checklist
for hand-off to Metricom's LGRPA.
3. Tracking and Reporting
a. The Contractor shall submit timely reports addressing
progress in a format provided or approved by Metricom and
attend any necessary meetings with Metricom or its
designated representative(s) no less than weekly.
b. The Contractor will keep Metricom informed of the scheduling
of all-public meetings and/or hearings.
C. Metricom Responsibilities:
1. Provide dedicated LGRPA representative in each market to attend weekly
meetings.
2. Provide local decision making authority for all zoning decisions.
3. Provide zoning package and file close-out format.
D. Deliverables:
1. Weekly report
2. The Contractor will keep Metricom informed of the scheduling of all-
public meetings and/or hearings.
3. Zoning Package and File Close-out
Part III: Construction Management:
Services Description:
Part III describes the construction management tasks and mutual
responsibilities in determining the construction feasibility of WAP sites
and all of interaction between disciplines needed to construct the site.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 10 of 20 WFI Initials: _________
- --------------------------------------------------------------------------------
* Confidential Treatment Requested
<PAGE>
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part III will be [***] Days from the date of entitlement for
payment for site construction completed, WAP installed and all accepted by
Metricom Representative, as defined in Exhibit III of the Agreement.
Part III: Task 1- Preliminary Investigation:
A. Services Description:
Task one describes the mutual responsibilities in visiting sites and
determining the construction feasibility.
B. Contractor Responsibilities:
1. Contractor shall determine the construction feasibility and layout of
each WAP site; manage all of the design and engineering services required
to produce the zoning and construction drawings; obtain any and all
required building permits and related approvals of the plans prior to
commencement of construction of the site; manage the bidding,
contracting, materials delivery, construction, and placement of
electrical service; and obtain final approval and acceptance of each WAP
site.
2. Contractor shall represent Metricom with all building departments and
related governmental officials at the municipal level and with all
contractors and utilities, except interconnect, required for the
construction and installation of the site.
3. The Contractor shall review each of the potential WAP site candidates to
determine its construction feasibility and to assist the site acquisition
representative in preparing lease exhibits showing the optimum layout for
the equipment and antennas.
4. The Contractor shall visit the local building departments and interpret
the codes to determine the process, requirements, application forms, and
drawing requirements for building permits and other related permits
required to construct each WAP site.
5. The Contractor shall discuss same as appropriate with the building
department officials.
6. The Contractor shall determine any fast track permit possibilities and
the cost and requirements of same.
7. From the preliminary investigation, the Contractor shall create a
construction feasibility report and shall assist the site acquisition
representative ensuring that the requirements of the construction
feasibility report are included in the Lease Agreement for the WAP
candidates.
8. Zoning Support - Contractor shall support the zoning process if it is
necessary for construction management personnel to appear at any meetings
or hearings to assist Metricom in obtaining the required zoning approvals
for any WAP site.
C. Metricom Responsibilities:
1. Contract A & E firms that are licensed in each GSA
2. Provide Standard Construction Equipment Specifications
3. Provide Metricom standard format for feasibility reports.
4. Provide construction approval process
D. Deliverables:
1. Construction Feasibility report utilizing the WAP Site Survey Form
Part III: Task 2- Management of Architectural & Engineering Services:
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials:______ 11 of 20 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
A. Services Description:
Task two describes the mutual responsibilities needed to engage and manage
A&E firms needed to permit and construct the sites.
B. Contractor responsibilities:
1. The Contractor shall qualify architectural & engineering services in
each of it markets and obtain Metricom's approval of the firms and the
business terms for such services.
2. The Contractor shall request such services as required to complete the
zoning and construction drawings for each WAP site, utilizing the forms
and processes as directed by Metricom.
3. Contractor shall schedule the work of the architects and engineers
4. Contractor shall manage their progress and review the drawings and other
submittals to make sure that they meet Metricom's technical and quality
standards.
5. Contractor shall obtain from the architects and engineers the number and
type of drawings and other submittals required for Metricom to obtain
the zoning approvals and building permits required to construct each WAP
site.
C. Metricom Responsibilities:
1. Provide Metricom's technical and quality standards.
2. Define the business terms for A & E services
3. Metricom shall prepare the construction contract documents for execution
by the architects, engineers and Metricom.
4. All such contracts shall be entered into directly between the architects
and engineers and Metricom.
D. Deliverables:
1. Zoning Drawings
2. Construction Drawings
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials:______ 12 of 20 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
Part III: Task 3- Building Permit Management:
A. Services Description:
Task three describes the mutual responsibilities and tasks associated with
obtaining building permits for the WAP sites.
B. Contractor Responsibilities:
1. Order construction contractor to prepare and submit the building permit
application (if required) to the appropriate jurisdictions, including all
required ancillary documents, drawings, and forms required by the
jurisdiction.
2. Contractor shall advise Metricom of the application fee and other permit
fees required to obtain the permits, which shall be paid by Metricom.
3. Contractor shall manage the plan check process with the building permit
officials and obtain the building permit and other ancillary permits
required for construction of each WAP site.
4. Contractor shall attempt to expedite each permit process to the fullest
extent possible. To the extent such expediting requires any additional
cost or fees, Contractor shall obtain Metricom's prior approval before
authorizing any such expenditures.
5. Contractor shall ensure that the site Construction Company has all the
necessary building permit documentation and is aware of all-specific
conditions and requirements imposed by the jurisdiction.
C. Metricom Responsibilities:
1. Notice to Proceed with Construction
2. Approved Construction Drawings
3. Building Permit Approval
4. Pay permit application fees
D. Deliverables:
1. Building Permit Applications.
2. Building Permits.
Part III: Task 4- Materials Coordination:
A. Services Description:
This section describes the responsibilities of each company to deliver site
construction materials to each site.
B. Contractor Responsibilities:
1. Contractor shall submit to Metricom on a timely fashion all requests for
owner supplied materials, utilizing the forms and processes designated by
Metricom.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials:______ 13 of 20 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
2. Contractor shall make such request in a timely fashion to allow the
ordering and delivery to a warehouse of such materials by Metricom as
required for the construction of each WAP site.
3. Contractor shall order the delivery and acceptance of such materials from
the warehouse to the construction company unless Metricom directs that
the materials be delivered to some other location.
4. Contractor shall report to Metricom all material deficiencies and defects
of which it becomes aware.
C. Metricom Responsibilities:
1. Metricom will order all owner supplied WAP materials and manage the
delivery of the materials to a warehouse for storage and distribution to
WAP sites 2. Metricom will provide contractor with a list of materials to
be supplied by owner, (Metricom) bulk site vendor and the construction
contractor.
3. Metricom shall manage the process of replacing material deficiencies and
defects of which it becomes aware.
D. Deliverables:
1. Materials Delivery Schedule
Part III: Task 5- Construction Contracting:
A. Services Description:
Contractor shall manage the process of identifying, selecting, and bidding
jobs for the construction of each site.
B. Contractor Responsibilities:
1. Manage construction schedule
2. Contractor shall prepare the bid package documents for submission to
contractors for the construction of each WAP site.
3. The Contractor shall obtain bids from [***] qualified contractors for
the construction of each site, unless Metricom agrees to a different bid
process or less contractors.
4. The Contractor shall prepare an analysis of the bids and submit it to
Metricom with its recommendation for the contractor to be selected.
C. Metricom Responsibilities:
1. Metricom shall prepare the construction contract documents for execution
by the Construction Company and Metricom.
2. All such contracts shall be entered into directly between the
Construction Company and Metricom.
D. Deliverables:
1. List of qualified contractors with contact names, and recommendations.
2. Construction bid responses
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials:______ 14 of 20 WFI Initials: _______
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
3. Construction schedule report
4. Construction bid package analysis
Part III: Task 6- Electric Utilities Coordination
A. Services Description:
This task describes the mutual responsibilities and tasks needed to order and
verify installation of electric utilities to each WAP site.
B. Contractor Responsibilities:
1. Contractor shall coordinate with the applicable electric utilities to
plan and order such utilities for each WAP site.
2. It is anticipated that electric service shall be supplied by the landlord
of the WAP site. At WAP sites where Metricom will be required to meter or
sub-meter separately, the Contractor shall advise Metricom of this and
that direct service must be obtained from the applicable electric
utility.
3. The Contractor shall submit such orders to the electric utility in a
timely fashion to provide for installation of service in connection with
the construction of the WAP site.
4. Contractor shall inspect each site for proper electrical installation.
C. Metricom Responsibilities:
1. Provide signature authority for utility agreement
D. Deliverables:
1. Order Confirmation
2. Utility delivery schedule
Part III: Task 7- Management of Civil Construction
Services Description:
Task seven describes mutual responsibilities and the tasks associated with
site civil construction. These services are included but not limited to:
A. Contractor Responsibilities:
1. File Permits
2. Scheduling of the construction of the sites and coordination with the
landlord;
3. Inspection of the work to ensure that it meets Metricom's technical and
quality standards;
4. Requiring the contractor to complete the work in accordance with all
applicable safety procedures, regulations and laws;
5. Administering the construction contract,
6. Approving request for payment, and submitting same to Metricom;
7. Report on the completing of the civil construction in accordance with the
schedule.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials:______ 15 of 20 WFI Initials: _______
- --------------------------------------------------------------------------------
<PAGE>
8. Using Metricom provided "Standard Construction Process for Wired
Access Point" document, the Contractor shall prepare a punch list for
the civil construction work and manage the correction of all punch
list items by the Construction Company.
9. Using Metricom provided "Standard Construction Process for Wired
Access Point" document, the Contractor shall ensure that the
Construction Company obtains all required inspections and obtains
final sign off from the applicable building department.
10. Contractor shall obtain from the construction company and its subs
waivers of mechanic lien and lien releases in connection with
contractor's submission of its request for final payment.
C. Metricom Responsibilities:
1. Provide site inspection checklist/punch list
2. Payment mechanism to support construction contracting.
3. Provide construction agreement contract
4. Approve progress payments.
5. Insuring the completion of the civil construction in accordance with
the schedule.
6. The costs of permits will be borne by Metricom
D. Deliverables:
1. Completed site inspection checklist/punchlist
Part III: Task 8- Tracking and Reporting:
A. Services Description:
This task describes the mutual responsibilities and tasks needed to manage
the construction schedule, Construction Management Package, and File
Closeout.
B. Contractor Responsibilities:
1. Construction Schedule - Contractor shall perform the management
services according to the Construction Forecast submitted by
Contractor.
2. The Contractor shall prepare a construction management package (format
to be provided by Metricom) which includes approved documentation
evidencing the completion of all required construction and equipment
installation work and the final approval and inspection by the
building department and Metricom.
3. Contractor shall deliver to Metricom completed file including such
documentation, copies of all correspondence, draft documents, photos,
applications, permits, plans, drawings, maps, and lien releases.
4. In addition, the Contractor shall complete and submit the latest
version of Metricom's construction management file documentation
checklist to Metricom's property manager.
C. Metricom Responsibilities:
1. Metricom to provide equipment production forecast and delivery
interval.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 16 of 20 WFI Initials: __________
- --------------------------------------------------------------------------------
<PAGE>
D. Deliverables:
1. Releases, payment documentation, and other pertinent information or
items as detailed in Metricom's construction management file
documentation checklist (to be supplied by Metricom).
2. In addition, the Contractor will complete and submit the latest
version of Metricom's construction management file documentation
checklist to Metricom's property manager.
3. Weekly production schedule report
Part IV: WAP Cabinet and Electronics Installation
A. Services Description:
Using the WAP Cabinet Specifications provided below, this section describes
the mutual responsibilities and tasks needed to install the WAP cabinets in
each site.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part IV will be [***] Days from the date of entitlement for
payment for site construction completed, WAP installed and all accepted by
Metricom Representative, as defined in Exhibit III of the Agreement.
The WAP Cabinet Specifications are outlined as follows:
- --------------------------------------------------------------------------------
WCS Cabinet
. WCS Outdoor Sites: [***].
. WCS Indoor Sites: [***].
. Metricom anticipates utilizing the [***] as dictated by capacity
requirements.
. WCS indoor cabinet dimensions are approximately: [***][***].
. WCS outdoor cabinet dimensions are approximately: [***][***].
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ISM Cabinet
. ISM Indoor : [***] Cabinet dimensions: [***].[***]
. ISM outdoor : [***] Cabinet dimensions: [***].[***]
- --------------------------------------------------------------------------------
B. Contractor Responsibilities
1. Contractor shall perform the installation and reasonable Installation
testing, in accordance with Metricom procedures, of the WAP equipment
at each site.
2. Contractor shall schedule with Metricom to accept the site after the
installation of the electronic equipment and completion of the testing
and optimization procedures.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 17 of 20 WFI Initials: __________
- --------------------------------------------------------------------------------
* Confidential Treatment Requested.
<PAGE>
3. Contractor's completion of [***] shall be deemed the "construction
management deliverable" for purposes of Contractor's entitlement to
its construction management paypoint.
4. Responsibility for Schedule.
5. Manage and coordinate the delivery of the WAP cabinet and electronics
to the physical WAP site location and the movement from the site
location to the location where the WAP Cabinet is to be installed.
6. Field Supervision of installation services
7. Secure cabinets to floor/pad or other area or structure, as
constructed and prepared by the general construction contractor.
8. Install batteries
9. Install 4 High Power Amps (8 Amps if 8 antenna configuration used) -
WCS only.
10. Connect (wire up) the AC power (4 power cords for WCS and 2 for ISM).
11. (8 power cords if 8 antenna configuration used)
12. Install power supply (conversion) modules (4 for ISM).
13. (4 for WCS 4 antenna configuration)
14. ( 8 for WCS 8 antenna configuration)
15. Connect T-1 or DS-3 lines and 1 POTS line (to be supplied by
Metricom).
16. Connect coax (WCS) or Ethernet jumpers (ISM, which consists of
connecting 16 jumpers from the entrance protection panel to the
network switch).
17. Connect the equipment grounding system
18. Reasonable Installation testing in accordance with Metricom
procedures.
C. Metricom Responsibilities:
1. Provide documentation for Methods and Procedures for WAP equipment
installation.
2. Installation materials specifications.
3. Warehousing and delivery of all WAP electronics to the market and each
site.
4. Warehousing and delivery of all cabling kit materials to the market
and each site.
5. Warehousing and delivery of Power equipment materials to market and
each site.
6. Qualify and Select Installation subcontractors in each market.
7. Work Order documentation and procedures.
8. Quality and Safety procedures.
9. Provide DC power connection
10. T-1 or similar facilities installation to site.
11. Furnish cables and specialized test equipment for each site.
12. Furnish list of tools and test equipment required for installation
teams.
13. Furnish earthquake bracing materials as required.
14. Optimize system and test connection (including alarm functionality)
back to Network Operations Center (NOC).
15. Site Cutover management and place system or declare system ready to be
placed into service.
D. Deliverables:
1. Installation Acceptance punch list.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: __________ 18 of 20 WFI Initials: __________
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
Part V- GSA MATRIX
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Work Site Construction WAP
Completion Acq. Zoning Management Installation # ISM # WCS Total
GSA Date Services Services Services Services WAPs WAPs WAPs
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Phase 1 GSAs [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
Subtotal [***] [***] [***]
-------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
Phase 2 GSAs [***]
- --------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
Subtotal [***] [***] [***]
-------------------------------------------
Grand Total [***] [***] [***]
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
The numbers provided are Metricom's best estimate of the quantity of WAP sites,
ROW jurisdictions, and Utilities in each location, but they are not definitive.
Metricom reserves the right to revise these numbers, if and as necessary, in its
sole discretion.
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
* CONFIDENTIAL TREATMENT REQUESTED.
19 of 20
- --------------------------------------------------------------------------------
<PAGE>
This Statement of Work is an attachment to the Master Services Agreement between
Metricom, Inc. and Wireless Facilities Inc. dated September 21, 1999. This
Statement of Work may not be modified except in writing by both Parties.
Accepted by:
Metricom, Inc. Wireless Facilities, Inc.
/s/ Dale W. Marquart /s/ Masood K. Tayebi
- --------------------------------- -----------------------------
By: Dale Marquart By: Masood K. Tayebi
----------------------------- -------------------------
Title: General Counsel Title: President
-------------------------- ----------------------
Date: 9-29-99 Date: 9-29-99
-------------------------- -----------------------
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
20 of 20
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- ----------------------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter
---------------------------------------------------------------
ID Task Name Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to [***] [***] [***]
lease
- ----------------------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info [***] [***] [***]
package to I
- ----------------------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate [***] [***] [***]
Ranking Pac
- ----------------------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
11 Photos and Maps [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning [***] [***] [***]
Information
- ----------------------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
14 Site Tests [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize [***] [***] [***]
sites:
- ----------------------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
20 Environmental studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File [***] [***] [***]
close-out
- ----------------------------------------------------------------------------------------------------------------------------------
24 Signed Lease [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis [***] [***] [***]
Binder
- ----------------------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit [***] [***] [***]
application
- ----------------------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package: [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local [***] [***] [***]
Jurisdictions)
- ----------------------------------------------------------------------------------------------------------------------------------
35 Zoning Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
37 Building permit submittal [***] [***] [***]
documents:
- ----------------------------------------------------------------------------------------------------------------------------------
38 A&E Drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
39 Structural Analysis [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
41 Building Permit Received [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
42 Permitting Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
44 Site surveys [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
46 Construction drawings [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial [***] [***] [***]
power
- ----------------------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
51 Order Materials [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings [***] [***] [***]
Complete
- ----------------------------------------------------------------------------------------------------------------------------------
53 Begin Construction [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
54 Construction Ready [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
55 Site Testing [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
57 Punch list Complete [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE [***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Project Schedule For Site Development And Constructions / [***] EXHIBIT II=A: Statement Of Work RFP #AB-003
- --------------------------------------------------------------------------------------------------------------------
3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter
--------------------------------------------------------------------------
ID Task Name Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 EXISTING SITE EVALUATION
- --------------------------------------------------------------------------------------------------------------------
2 Inventory Of Friendly-Bulk Sites
- --------------------------------------------------------------------------------------------------------------------
3 Release Bulk Site Search Ring
- --------------------------------------------------------------------------------------------------------------------
4 SITE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
5 PHASE 1-IDENTIFY SITE CANDIDATES
- --------------------------------------------------------------------------------------------------------------------
6 Visit Ring with RF
- --------------------------------------------------------------------------------------------------------------------
7 Confirm Landlord willingness to
lease
- --------------------------------------------------------------------------------------------------------------------
8 Deliver standard lease and info
package to I
- --------------------------------------------------------------------------------------------------------------------
9 Prepare and Submit Candidate
Ranking Pac
- --------------------------------------------------------------------------------------------------------------------
10 Address and Contact Info
- --------------------------------------------------------------------------------------------------------------------
11 Photos and Maps
- --------------------------------------------------------------------------------------------------------------------
12 Property data and Zoning
Information
- --------------------------------------------------------------------------------------------------------------------
13 Site Review and Coordination
- --------------------------------------------------------------------------------------------------------------------
14 Site Tests
- --------------------------------------------------------------------------------------------------------------------
15 Team Visit to select and finalize
sites:
- --------------------------------------------------------------------------------------------------------------------
16 Landlord Meetings
- --------------------------------------------------------------------------------------------------------------------
17 PHASE 2 LEASE ACQUISITION
- --------------------------------------------------------------------------------------------------------------------
18 Title Search for candidate sites
- --------------------------------------------------------------------------------------------------------------------
19 Legal review of Lease
- --------------------------------------------------------------------------------------------------------------------
20 Environmental studies
- --------------------------------------------------------------------------------------------------------------------
21 PREPARE LEASE EXHIBITS
- --------------------------------------------------------------------------------------------------------------------
22 Coordinate site diagrams
- --------------------------------------------------------------------------------------------------------------------
23 Prepare lease package and File
close-out
- --------------------------------------------------------------------------------------------------------------------
24 Signed Lease
- --------------------------------------------------------------------------------------------------------------------
25 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
26 Site Acquisition Complete
- --------------------------------------------------------------------------------------------------------------------
27 ZONING APPROVALS
- --------------------------------------------------------------------------------------------------------------------
28 Conduct Preliminary Investigation
- --------------------------------------------------------------------------------------------------------------------
29 Physical Review of Area
- --------------------------------------------------------------------------------------------------------------------
30 Prepare Initial Zoning Analysis
Binder
- --------------------------------------------------------------------------------------------------------------------
31 Prepare and submit planning permit
application
- --------------------------------------------------------------------------------------------------------------------
32 Prepare Zoning package:
- --------------------------------------------------------------------------------------------------------------------
33 Submit Zoning Package
- --------------------------------------------------------------------------------------------------------------------
34 Zoning Approval (Based on Local
Jurisdictions)
- --------------------------------------------------------------------------------------------------------------------
35 Zoning Complete
- --------------------------------------------------------------------------------------------------------------------
36 BUILDING PERMIT SERVICES
- --------------------------------------------------------------------------------------------------------------------
37 Building permit submittal
documents:
- --------------------------------------------------------------------------------------------------------------------
38 A&E Drawings
- --------------------------------------------------------------------------------------------------------------------
39 Structural Analysis
- --------------------------------------------------------------------------------------------------------------------
40 Apply for Building Permits
- --------------------------------------------------------------------------------------------------------------------
41 Building Permit Received
- --------------------------------------------------------------------------------------------------------------------
42 Permitting Complete
- --------------------------------------------------------------------------------------------------------------------
43 CONSTRUCTION MANAGEMENT
- --------------------------------------------------------------------------------------------------------------------
44 Site surveys
- --------------------------------------------------------------------------------------------------------------------
45 Geotechnical Studies
- --------------------------------------------------------------------------------------------------------------------
46 Construction drawings
- --------------------------------------------------------------------------------------------------------------------
47 RFQ For Construction Bid package
- --------------------------------------------------------------------------------------------------------------------
48 Order Installation of commercial
power
- --------------------------------------------------------------------------------------------------------------------
49 Coordinate Ordering of Interconnect
- --------------------------------------------------------------------------------------------------------------------
50 Tower/foundation design
- --------------------------------------------------------------------------------------------------------------------
51 Order Materials
- --------------------------------------------------------------------------------------------------------------------
52 Final Construction Drawings
Complete
- --------------------------------------------------------------------------------------------------------------------
53 Begin Construction
- --------------------------------------------------------------------------------------------------------------------
54 Construction Ready
- --------------------------------------------------------------------------------------------------------------------
55 Site Testing
- --------------------------------------------------------------------------------------------------------------------
56 WFI RF Approval
- --------------------------------------------------------------------------------------------------------------------
57 Punch list Complete
- --------------------------------------------------------------------------------------------------------------------
58 Metricom Acceptance
- --------------------------------------------------------------------------------------------------------------------
59 CONSTRUCTION COMPLETE
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT III-A
to
MASTER SERVICES AGREEMENT
Between Metricom, Inc. and Wireless Facilities, Inc.
Dated September 21, 1999
SCHEDULE OF VALUES RFP #AB-003
------------------------------
PART I-PRICE SCHEDULE
Note: Please prepare one firm fixed price cost proposal for all GSAs listed in
Exhibit I-A
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
Task Task Description $ COST/per WAP $ TOTAL Cost
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Site Acquisition $[***] $[***]
- -----------------------------------------------------------------------------------------------
2. Zoning Approval $[***] $[***]
- -----------------------------------------------------------------------------------------------
3. Construction Management $[***] $[***]
- -----------------------------------------------------------------------------------------------
4. WAP Installation/Testing/Stand- $[***] $[***]
alone Commissioning
- -----------------------------------------------------------------------------------------------
Total Firm Fixed Price $[***] $[***]
- -----------------------------------------------------------------------------------------------
</TABLE>
PART II -MILESTONE PAYMENT SCHEDULE (Paid per WAP)
Note: All payments are less amounts paid under letters of intent until these
amounts are fully recovered.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Activity Payment percentage Metricom Verification Metricom Approval
Based on total price per Authority Authority
WAP by type of
WAP/(note 1)/
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Search ring issued to the [***]% Local ROW Director Lee Gopadze
contractor
- -------------------------------------------------------------------------------------------------------------
Lease signed [***]% Local ROW Director Lee Gopadze
- -------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 1 of 5 WFI Initials: /s/ MT
---------- ----------
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
Zoning approved [***]% Local ROW Director Lee Gopadze
- -------------------------------------------------------------------------------------------------------------
Site construction completed, [***]% Regional Operations & Bill Isbister
WAP installed and all Construction Director
accepted by Metricom Rep.
- -------------------------------------------------------------------------------------------------------------
Early Completion Incentive [***]% of the [***] Regional Operations & Bill Isbister
Construction Directors
- -------------------------------------------------------------------------------------------------------------
</TABLE>
PART III -INCENTIVE BONUS PAYMENT SCHEDULE (Paid per GSA)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Maximum Maximum Maximum Maximum
Incentive Bonus Incentive Bonus Incentive Bonus Incentive Bonus
GSA Week 4 Week 3 Week 2 Week 1
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Phase 1 $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
TOTAL Phase 1 = $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Phase 2 $[***]
- --------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
TOTAL Phase 2 = $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
GRAND TOTALs $[***] $[***] $[***] $[***]
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1. Early completion is defined as [***].
2. Additionally, early completion is calculated on a [***] basis requiring
a [***] prior to the scheduled completion. Thus [***].
3. Compensation for early completion is [***].
4. The early completion incentive allows for a [***]
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 2 of 5 WFI Initials: /s/ MT
---------- ----------
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
PART IV- PROFESSIONAL SERVICES RATE SHEET
The hourly rates set forth below shall apply to all Services performed by WFI
that are in addition to those described in the Statement of Work. Metricom
shall compensate WFI on an hourly basis in accordance with the rates set forth
in the table below. WFI may invoice Metricom monthly for all hourly-billed
Services rendered the previous period.
Terms and Conditions:
1. The monthly rates include $[***] living allowance per person, which covers
[***].
2. The hourly rate [***]
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Wireless Facilities, Inc.
1999 Hourly Services Rates
- ---------------------------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate Monthly Rate
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Program Management 1 Project Manager $[***] $[***]
2 Project Coordinator $[***] $[***]
3 Administrative Assistant $[***] $[***]
RF Engineering 4 Principal Engineer $[***] $[***]
5 Senior Engineer $[***] $[***]
6 Design Engineer $[***] $[***]
7 Engineer $[***] $[***]
8 Associate Engineer $[***] $[***]
9 Technician $[***] $[***]
Network Engineering 10 Principal Engineer $[***] $[***]
11 Senior Engineer $[***] $[***]
12 Design Engineer $[***] $[***]
13 Engineer $[***] $[***]
14 Associate Engineer $[***] $[***]
15 Technician $[***] $[***]
Site Acquisition 16 Leasing Manager $[***] $[***]
17 Zoning Manager $[***] $[***]
18 Site Acquisition Specialist $[***] $[***]
19 Zoning Specialist $[***] $[***]
20 Paralegal $[***] $[***]
Construction Management 21 CM Construction Manager $[***] $[***]
22 CM Operations Manager $[***] $[***]
23 CM Construction Engineer $[***] $[***]
24 CM Project Coordinator $[***] $[***]
25 CM Utility Coordinator $[***] $[***]
26 CM Field Supervisor $[***] $[***]
Installation & Maintenance 27 Cell-site Engineer $[***] $[***]
28 Switch Engineer $[***] $[***]
29 Engineer Supervisor $[***] $[***]
30 Sr. Installer $[***] $[***]
31 Installer $[***] $[***]
Documentation 32 Document Controls $[***] $[***]
</TABLE>
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 3 of 5 WFI Initials: /s/ MT
--------- ----------
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
<TABLE>
<S> <C> <C> <C>
Supervisor
33 Document Controls $[***] $[***]
Logistics 34 Logistics Manager $[***] $[***]
GIS 35 GIS Manager $[***] $[***]
36 GIS Specialist $[***] $[***]
Business Consulting 37 Sr. Partner $[***] $[***]
38 Partner $[***] $[***]
39 Director $[***] $[***]
40 Business Consultant $[***] $[***]
Advanced Technology 41 Principal Staff Engineer $[***] $[***]
42 Sr. Staff Engineer $[***] $[***]
43 Staff Engineer $[***] $[***]
- ---------------------------------------------------------------------------------------------------
</TABLE>
Please identify what the rates include:
PART V- SCHEDULE OF ITEMS NOT COVERED BY CONTRACTOR'S PRICES
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses. WFI may invoice Metricom
bi-weekly for reimbursable pass-through expenses.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
WFI Metricom Provided or
Included Reimbursed to WFI as
Pass-Through expenses
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Expense Summary:
- ---------------------------------------------------------------------------------------------------------------
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Cellular Phones/Pagers [***] [***]
Cellular/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 4 of 5 WFI Initials: /s/ MT
---------- -----------
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
<PAGE>
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware - computer and plotter) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
EXPENSES INCLUDED IN OFFICE SPACE (see Note (1)
Telephone/FAX Service (local/long distance) (1) [***] [***]
Office Rent, Furniture & Equipment (1) [***] [***]
Utilities (1) [***] [***]
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
Note(1): Office Space will be compensated at a rate of $[***] per square foot
per month, said rate will be subject to negotiation by Metricom and WFI based on
demonstrated and substantial increased actual cost in a specific market.
PART VI- SCHEDULE OF ITEMS NOT COVERED BY CONTRACTOR'S PRICES
List below all items not covered by the quoted prices, per this document, and
you expect to require in order to complete the requirements as stated herein.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Est.
Unit Number
Item Description Price of Units Extended Price
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Miscellaneous Installation Materials:
- -----------------------------------------------------------------------------------------------------
Tie Wraps
- -----------------------------------------------------------------------------------------------------
Cable Ladder
- -----------------------------------------------------------------------------------------------------
Cables of any type [***]
- -----------------------------------------------------------------------------------------------------
Specialized Test Equipment (Laptops are included)
- -----------------------------------------------------------------------------------------------------
Specialized Installation Construction, such as Crane
- -----------------------------------------------------------------------------------------------------
Lifts, building or door modifications [***]
- -----------------------------------------------------------------------------------------------------
Crane Rental for Drive Testing [***]
- -----------------------------------------------------------------------------------------------------
No permit fees of any type
- -----------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 5 of 5 WFI Initials: /s/ MT
---------- -----------
- --------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
