EX-10.4(A) 6 d42547a5exv10w4xay.htm GENERAL PURCHASE AGREEMENT exv10w4xay
 

Exhibit 10.4(a)
EXECUTION COPY
GENERAL PURCHASE AGREEMENT
BETWEEN
METROPCS WIRELESS, INC.
AND
LUCENT TECHNOLOGIES INC.
Agreement No.: LNM01NMDK02005
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.
 
***   Where this marking appears throughout this Exhibit 10.4(a), information has been omitted pursuant to a request for confidential treatment and such information has been filed with the SEC separately.

 


 

TABLE OF CONTENTS
GENERAL PURCHASE AGREEMENT
BETWEEN METROPCS WIRELESS, INC.
AND LUCENT TECHNOLOGIES INC.
         
    Page
Article I General Provisions Applicable To Entire Agreement
       
1.1 Headings and Definitions
       
1.2 Term of Agreement
       
1.3 Scope
       
1.4 Entitlement to Discounts
       
1.5 Planning Information
       
1.6 Orders
       
1.7 Customer-Initiated Changes
       
1.8 Seller-Initiated Changes
       
1.9 Prices
       
1.10 Invoices and Terms of Payment
       
1.11 Delivery and Installation Schedule
       
1.12 Transportation
       
1.13 Packing, Marking and Shipping
       
1.14 Title and Risk of Loss
       
1.15 Compliance With Laws
       
1.16 Taxes
       
1.17 Training
       
1.18 Termination of Orders for Convenience
       
1.19 Termination for Breach
       
1.20 Patents, Trademarks and Copyrights
       
1.21 Use of Information
       
1.22 Notices
       
1.23 Right of Access
       
1.24 Independent Contractor
       
1.25 Limitations on Remedies
       
1.26 Force Majeure
       
1.27 Assignment
       
1.28 General Indemnities
       
1.29 Publicity
       
1.30 Applicable Law
       
1.31 Survival of Obligations
       
1.32 Severability
       
1.33 Non-Waiver
       
1.34 Customer Responsibility
       
1.35 Dispute Resolution
       
1.36 Security Interest
       
1.37 Financing Requirements
       
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    Page
1.38 Representations, Warranties and Covenants of Seller
1.39 Representations, Warranties and Covenants of Customer
1.40 Subcontractors
1.41 Insurance
 
Article II Provisions Applicable to the Purchase of Products
 
2.1 General
2.2 Product Availability
2.3 Documentation
2.4 Product Compliances
2.5 Product Changes
2.6 Continuing Product Support — Parts and Services
2.7 Specifications
2.8 Customer Technical Support
2.9 Product Warranties
2.10 Acceptance
 
Article III Provisions Applicable to the Licensing of Licensed Materials
 
3.1 General
3.2 License
3.3 Title, Restrictions and Confidentiality
3.4 Changes in Licensed Materials
3.5 Modifications to Software; Product Compliances
3.6 Modification by Customer
3.7 Related Documentation
3.8 Software Warranty
3.9 Cancellation of License
3.10 Taxes Applicable to Software
 
Article IV Provisions Applicable to Engineering, Installation and Other Services
 
4.1 General
4.2 Acceptance of Installation
4.3 Seller’s Personnel
4.4 Conditions of Installation and Other Services Performed on Customer’s Site
4.5 Work Done by Others
4.6 Seller’s Right to Re-Deploy Resources
4.7 Services Warranties
 
Article V Entire Agreement and Execution
 
5.1 Entire Agreement
5.2 Termination of Existing Agreement
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    Page
Attachments
       
 
       
Attachment A *** Pricing
       
Attachment B Training
       
Attachment C *** Pricing
       
Attachment D RTSA and Sun MVM
       
Attachment E Responsibilities Matrix for System Engineering, Implementation, and Optimization Services
       
Attachment F Change Management Process
       
Attachment G Repair and Exchange Services
       
Attachment H Product Standard Intervals
       
Attachment I Cell Site Self-Install Agreement
       
Attachment J Services
       
Attachment K Co-Marketing
       
Attachment L Messaging
       
Attachment M Intelligent Network
       
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GENERAL PURCHASE AGREEMENT BETWEEN METROPCS WIRELESS, INC.
AND
LUCENT TECHNOLOGIES INC.
This General Purchase Agreement (this “Agreement”), effective as of the Effective Date, is made by and between Lucent Technologies Inc., a Delaware corporation having an office at 600 Mountain Avenue, Murray Hill, New Jersey 07974, and MetroPCS Wireless, Inc., a Delaware corporation having an office at 8144 Walnut Hill Lane, Suite 800, Dallas, Texas 75231.
RECITALS:
WHEREAS, Customer provides PCS at or near the 1.9 GHz bands under a license(s) issued by the FCC;
WHEREAS, Customer wants Seller, at Customer’s request, to be one of its suppliers of wireless base stations, switches, power, cable and transmission equipment and Services to include, without limitation, engineering services, such as preparation of equipment specifications, and installation of networks, such as equipment installation, equipment removal and cable mining, and maintenance and repair of networks, and Seller desires to provide such Products and Services to Customer, all on the terms and conditions set forth herein;
WHEREAS, Customer and Seller entered into a General Agreement for Purchase of Personal Communications Services Systems effective as of October 1, 2002 (as the same may have been amended and/or supplemented from time to time, the “2002 Contract”), pursuant to which Seller agreed to provide products, licensed materials and services to Customer; and
WHEREAS, the Parties desire to terminate the 2002 Contract in its entirety as of the Effective Date and to enter into this Agreement to define the current relationship between the Parties.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby agree to the foregoing and as follows:
ARTICLE I
GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT
1.1 HEADINGS AND DEFINITIONS
All headings used in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any clause contained herein. For purposes of this Agreement, the following definitions will apply:
“AAA” shall have the meaning set forth in Section 1.35.
“Acceptance” means that: (a) with respect to Products and Licensed Materials, the applicable Products and/or Licensed Materials have been accepted as set forth in Section 2.10(a) or Section 2.10(b), as applicable; and (b) with respect to Services, (i) the applicable Acceptance Tests have
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been successfully performed as set forth in Section 4.2 and Seller has completed all Punch List Items; or (ii) Acceptance is deemed to occur under Section 4.2.
“Acceptance Date” means the date on which the applicable Product, Licensed Material or Service achieves Acceptance.
“Acceptance Tests” means all mutually agreed acceptance tests to be performed pursuant to this Agreement all of which are designed to determine whether the Products, Licensed Materials and the Services meet the Specifications and the terms and conditions contained in this Agreement.
“Advertising” means all advertising, sales promotion, press releases, and other publicity matters relating to this Agreement.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with another entity, where “control” means to own or control over fifty percent (50%) of the voting power of the applicable entity or otherwise to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise, provided that, once such control ceases to exist, the affected entity will no longer qualify as an Affiliate for purposes of this Agreement.
“Annual Maintenance Fees” means those charges for Services and Software Updates under Seller’s BRSS Program as further described in Attachment D to this Agreement.
“Applicable Laws” means: (a) as to either Party, all federal, state and local laws, ordinances, rules, regulations, court orders and governmental or regulatory agency orders that are applicable to its performance of this Agreement; and (b) in the case of Seller, all federal, state and local laws, ordinances, rules, regulations, court orders and governmental or regulatory agency orders that are applicable to products, licensed materials and services of the type to be provided to Customer hereunder.
“Applicable Permits” means all permits and licenses which either Party requires for it to conduct business and/or perform its obligation under this Agreement.
“Assignment” shall have the meaning set forth in Section 1.27(a).
“Authorized Users” means: (a) Customer and its employees; (b) Customer’s Affiliates and their employees; (c) any Designated Entity and its employees; ***.
“Backwards Compatible” means, with respect to Software, the ability of a new Major Release, Software Update, or Software Upgrade (as defined in Attachment D) to function with the
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immediately preceding Major Release, Software Update, or Software Upgrade, as the case may be, in accordance with their respective Specifications, and with all existing In Revenue Service Seller Manufactured Products (only to the extent that such Software has been designed to function with such Seller Manufactured Products) already installed or already ordered from Seller to be installed in the relevant PCS System.
“BRSS Program” and “BRSS” means the optional program described in Attachment D of this Agreement under which Seller offers to Customer Major Releases, Point Releases, Software Updates, Software Upgrades, Standard Base Software Releases, Retrofits and Crafts for Software for which Customer has paid the applicable Annual Maintenance Fee.
“Business Day” means any day other than a Saturday or Sunday or a day on which banks in Dallas, Texas are authorized or required by Applicable Laws to be closed.
“CDMA” shall mean code-division multiple access, a form of spread spectrum technology, which operates in segments of 1.25 MHz.
“Change Order” shall have the meaning set forth in Section 1.7(a).
“Claims” shall have the meaning set forth in Section 1.35.
“Comparable Customers” has the meaning defined in Section 1.9(d)(i).
“Craft” shall have the meaning set forth in Attachment D.
“Creditworthy” shall mean that: (a) less than *** of the non-disputed receivable balance owed to Seller and its Affiliates is aged over *** days from the invoice date at any given time unless otherwise mutually agreed to in writing; (b) the total non-disputed receivable balance owed to Seller and its Affiliates does not exceed *** unless otherwise mutually agreed to in writing; (c) Customer has provided consolidated financial statements to Seller in accordance with Section 1.6(b); and (d) Customer and its Affilitates have not experienced a material adverse change in the business assets operation or condition, financial or otherwise, taken as a whole, which materially and adversely affects Customer’s ability to meet its payment obligations hereunder.
 
“Customer” means (a) MetroPCS Wireless, Inc. and any successors and permitted assigns; (b) any Customer Affiliates with Pre-Existing Affiliate Agreements made a party hereto under Section 1.3(b); and (c) any Affiliate who elects to purchase or license Products, Licensed Materials and/or Services under this Agreement; provided that any such Affiliate executes a written acknowledgment agreeing to be bound by the provisions of this Agreement.
“Customer Event of Default” shall have the meaning set forth in Section 1.19(a).
“Customer Changes” shall have the meaning set forth in Section 1.7(a).
“Customer Indemnified Parties” shall have the meaning set forth in Section 1.20(a).
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“Customer Price List” means Seller’s published price notification releases furnished by Seller for purposes of communicating Seller’s prices or pricing-related information to Customer; however, this does not include firm price quotations.
“Delivery Date”, “Delivery” or similar derivations thereof means the actual date on which a Product, Licensed Materials or other item to be delivered by Seller hereunder is physically delivered to the destination designated by Customer in the applicable Purchase Order and the Customer designated recipient has signed off on the same.
“Designated Entity” means any Person to which Customer or one of its Affiliates leases or provides Products and with respect to which Customer or one of its Affiliates has an equity or membership interest of seventy percent (70%) or more.
“Designated Processor” means the Product for which the licenses to use Licensed Materials are initially granted.
“Disabling Code” shall have the meaning set forth in Section 3.8(a)(v).
“Discontinued Product” shall have the meaning set forth in Section 2.2.
“Effective Date” means June 6, 2005.
“EFT” shall have the meaning set forth in Section 1.10(a).
“Existing Market” shall mean a Market which is listed in or defined as an Existing Market in Attachment A or C, as appropriate.
“FCC” means Federal Communications Commission, or any successor entity.
“Firmware” means a combination of (a) hardware; and (b) Software represented by a pattern of bits contained in such hardware. The Firmware referenced herein is the current version available for commercial customers.
“First Office Application” shall mean the first installation and use in any of Seller’s customers’ networks of a particular Product or Licensed Material (including a Software release, feature and Software Upgrade).
“Fit” means the suitability or readiness of a Product, Software and/or other item for a particular application, including environmental extremes, marginal parameters, physical and signal compatibility with interfacing systems and surroundings, level of performance, safety margins, reliability, maintainability and installability.
“Form” means the weight, density, chemical or product composition, size, shape, structure, appearance, protocol, pattern, composition, configuration and marking/identification of a Product, Software and/or other item.
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“Function” means the set of features that the Product, Software and/or other item has been designed for use, as described in its Specifications.
“Force Majeure” means fires, strikes, riots, embargoes, explosions, earthquakes, floods, wars, water, the elements, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers of raw materials, or other similar causes beyond a Party’s control, but only to the extent that a Party’s actual performance is impaired whether or not similar to the foregoing.
“Guaranteed Delivery Date” shall mean the date Seller shall be obligated to deliver certain items to Customer based on the intervals set forth in Attachment H.
“Hazardous Material” means material designated as a “hazardous chemical substance or mixture” by the Administrator, pursuant to Section 6 of the Toxic Substance Control Act, a “hazardous material” as defined in the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.), or a “hazardous substance” as defined in the Occupational Safety and Health Act Hazard Communication Standard (29 CFR 1910.1200).
“Indemnifying Party” shall have the meaning set forth in Section 1.28(a).
“Initial Term” is defined in Section 1.2(a).
“Information” means all documentation and technical and business information in whatever form recorded, which a Party may furnish under, or has furnished in contemplation of, this Agreement. Information does not include Software (whether or not embodied in Firmware) or Related Documentation, the use of which is governed by Article III of this Agreement.
“Infringement Claim” shall have the meaning set forth in Section 1.20.
“In Revenue Service” means use of a Product or any part thereof for commercial service, whether or not revenue is actually being generated.
“Installation Completion” shall have the meaning set forth in Section 4.2.
“Installation Completion Date” shall have the meaning set forth in Section 4.2.
“Know-How” means concepts, techniques, information, reports, programs, program materials, documentation, diagrams, outlines, flow charts, user interfaces, technology, formulas, processes, algorithms and the like that are used to implement, support and/or develop a Product and/or Licensed Material.
“Liabilities” means losses, costs (including, but not limited to, reasonable attorneys fees and costs at trial and on appeal, if any), claims, demands, injuries, damages, judgments, penalties, fines, forfeitures, or liabilities.
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“Licensed Area” means one of the major trading areas in frequency blocks A and B or one of the basic trading areas in frequency blocks C, D, E, or F for which the FCC has granted a license to construct and operate a PCS System.
“Licensed Materials” means the Software and Related Documentation for which licenses are granted by Seller under this Agreement; no Source Code versions of Software are included in Licensed Materials.
“Lucent” is synonymous with Seller.
“Major Release” shall have the meaning set forth in Attachment D.
“Market” shall mean a Licensed Area, or an area within a Licensed Area, or combination of Licensed Areas and areas in Licensed Areas, as designated by Customer for PCS.
“MOP” shall have the meaning set forth in Section 4.4.
“MSC” shall mean mobile switching center.
“New Market” means a Market where Customer has not previously provided PCS and where Customer deploys a PCS System that is placed into In Revenue Service. Selected New Markets are identified in Attachments A and C.
“Others” shall have the meaning set forth in Section 1.21(a).
“Party” means either Customer or Seller, and “Parties” means Customer and Seller.
“PCS” means broadband personal communications services as authorized by the FCC in the frequency range of 1850MHz to 1910MHz and 1930MHz to 1990MHz.
“PCS CDMA System Products” means a collection of (a) PCS CDMA products and software which comprise a PCS System used to provide PCS Services in the PCS frequency range which are used in switching, wireless access and transport of voice and data at PCS frequencies based on CDMA technology substantially similar those Products and Software which are described in Attachments A and C, Sections 4A(i)(ii)(iii) and 4B(i)(ii)(iii)(iv)(v)(vi)(viib), and which are used and required in an integrated network solution, and (b) those new, replacement or enhanced PCS CDMA products and software that become available during the Term when generally available which comprise a PCS System to provide PCS Services in the PCS frequency range which are used in switching, wireless access and transport of voice and data at PCS frequencies based on CDMA technology substantially similar to the Products and Software described in Attachments A and C, Sections 4A(i)(ii)(iii) and 4B(i)(ii)(iii)(iv)(v)(vi)(viib) and which are used and required in an integrated network solution. “PCS CDMA System Products” does not include site material or cabling ancillary to base station replacement
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“PCS System’’ means a collection of products and software to be deployed and operated by Customer, an Affiliate or a Designated Entity to provide PCS services in the PCS frequency range.
“Person” shall mean any individual, corporation, company, partnership, joint venture, association, trust, unincorporated organization or governmental authority.
“Point Release” shall have the meaning set forth in Attachment D.
Pre-Existing Affiliate Agreement” shall have the meaning set forth in Section 1.3(b).
“Price Effective Date” means: (a) the date of Customer’s Purchase Order, if Seller receives and acknowledges receipt of the Purchase Order within five (5) Business Days of the date of the Purchase Order; (b) the date Seller actually receives the Purchase Order, if Seller receives and acknowledges receipt of the Purchase Order more than five (5) Business Days after the date of the Purchase Order; or (c) the date of the Purchase Order, if Seller is deemed to have accepted the Purchase Order as provided in Section 1.6(a).
“Product” means systems, equipment, and parts thereof acquired by Customer from Seller under this Agreement, but the term does not mean Software whether or not such Software is part of Firmware. The Products referenced herein are the current versions available for commercial customers.
“Product Manufacturing Information” means manufacturing drawings and specifications of raw materials and components, including part manufacturing drawings and specifications covering special tooling and the operation thereof, and a detailed list of all commercially available parts and components purchased by Seller on the open market disclosing the part number, name and location of the supplier, and price lists.
“Punch List Items” means the additional Services to be performed by Seller when such Services must be completed in order to achieve Acceptance, where the performance of Acceptance Tests has indicated thai such Services were incomplete or not otherwise ready for Acceptance at the time of the performance of such Acceptance Tests; provided that such Services are required to be performed by Seller pursuant to the terms of this Agreement, including all related Acceptance Tests and procedures.
“Purchase Order” means any purchase order issued by Customer to Seller pursuant to, and subject to the terms and conditions of, this Agreement, or any document that the Parties mutually agree upon as the vehicle for Customer’s procurement of Products, Licensed Materials and Services pursuant to, and subject to the terms and conditions of, this Agreement.
“Related Documentation” or “Documentation” means materials useful in connection with Products and/or Software, such as, but not limited to, flow charts, logic diagrams, program descriptions, and Specifications. No Source Code versions of Software are included in Related Documentation.
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“Remote Technical Support” and “RTS” mean the optional support Service as described in Attachment D.
“Renewal Term” shall have the meaning set forth in Section 1.2(b).
“Repair Parts” means new, remanufactured, reconditioned, refurbished, or functionally equivalent parts for the maintenance, replacement, and repair of Products sold pursuant to this Agreement.
“RTS Program” shall have the meaning set forth in Section 2.8.
“Seller” means Lucent Technologies Inc. and any successors and permitted assigns.
“Seller Changes” shall have the meaning set forth in Section 1.8(a).
“Seller Event of Default” shall have the meaning set forth in Section 1.19(b).
“Seller Manufactured Product” means a Product manufactured by Seller or purchased by it pursuant to its procurement specifications.
“Seller’s Competitor” means an entity whose primary business is the development, manufacture or sale (or licensing) of communications equipment and/or software.
“Services” means the performance of work requested by Customer or required to be performed by Seller under the terms of this Agreement and includes, but is not limited to: (a) engineering services such as preparation of equipment specifications, preparation and updating of office records, and preparation of a summary of material not specifically itemized in the Purchase Order; (b) installation services such as installation, equipment removal, and cable mining; and (c) other services, such as maintenance and repair.
“Site” shall mean the land and/or buildings owned or leased by Customer, one of its Affiliates or any Designated Entity for which all or any portion of a PCS System is or will be located.
“Software” means a computer program consisting of a set of logical instructions and tables of information which guide the functioning of a processor; such program may be contained in any medium whatsoever, including hardware containing a pattern of bits representing such program, but the term “Software” does not mean or include such medium. The Software described in this Agreement is the current version available for commercial customers and generally provided by Seller in connection with the Products referenced herein. “Software” shall include any Major Release, Software Update, Software Upgrade, Craft, Point Release, Standard Base Software Release and Retrofit, all as defined in Attachment D, which may be provided by Seller to Customer from time to time.
“Software Update” shall have the meaning set forth in Attachment D.
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“Source Code” means any version of Software incorporating high-level or assembly language that generally is not directly executable by a processor. Except as expressly provided herein, this Agreement does not require Seller to furnish any Source Code.
“Specifications” means Seller’s or its vendor’s technical published specifications for particular Products, Licensed Materials or Services furnished under this Agreement.
“Standard Interval” means the elapsed time, as specified in Attachment H, between the date of a Customer request for quote preparation of a Product, Licensed Material, and/or associated Service, and: (a the Delivery Date for such Product or Licensed Material not installed by Seller or (b) the Installation Completion Date for such Product or Licensed Material installed by Seller.
“Start Date” shall have the meaning defined in Section 1.11(a)
“Subcontractor” means all vendors, suppliers, consultants and subcontractors of every tier who have a contract with Seller or another subcontractor for the performance of any part of the Services.
“Tax Assessment” means all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction or similar taxes, fees, or surcharges, but excludes: (a) any tax, fee. assessment, or surcharge on either Party’s corporate existence, status, or income; (b) property taxes, fees, assessment, or surcharges; (c) any corporate franchise tax, fee, assessment, or surcharge; and (d) taxes, fees, assessment, and surcharges which are imposed directly on a Party’s gross or retail revenues.
“Term” shall have the meaning set forth in Section 1.2(b).
“Territory” means the 50 states of the United States plus the District of Columbia.
“Transition Period” shall have the meaning set forth in Section 1.19(f).
“Turnover” means, with respect to Products and Licensed Materials to be installed by Seller, that Seller has completed all implementation and Seller-testing-related activities relating to such Products and Licensed Materials, and such Products and Licensed Materials are ready for Customer to conduct Acceptance Tests.
“2002 Contract” shall have the meaning set forth in the Recitals.
“Use” with respect to Licensed Materials means the loading, running, using, or copying of the Licensed Materials, or any portion thereof, into or on a processor for execution of the instructions and tables contained in such Licensed Materials.
Vendor Item” means a Product or partial assembly of Products furnished by Seller but neither manufactured by Seller nor purchased by Seller pursuant to its procurement specifications.
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“Warranty Period” means the period of time listed in the respective warranty clauses which, unless otherwise stated, commences for: (a) Products and Licensed Materials: (i) on the Delivery Date; or (ii) if installed by Seller, on the Acceptance Date; and (b) Services, on the date Service is completed and accepted by Customer.
1.2 TERM OF AGREEMENT
     (a) Initial Term.This Agreement shall be effective on the Effective Date and, except as otherwise provided herein, shall continue in effect until the earlier of: (a) June 7, 2008; or (b) *** (the “Initial Term”). The modification or termination of this Agreement shall not affect the rights or obligations of either Party under any Purchase Order accepted by Seller before the effective date of the modification or termination.
     (b) Renewal Terms. Upon the expiration of the Initial Term, Customer will have the right to extend the term of this Agreement for up to three (3) successive periods of one (1) year each (each such one (1) year period, a “Renewal Term”). *** The Initial Term and the Renewal Terms are individually and collectively referred to herein as the “Term”.
1.3 SCOPE
     (a) General. The terms and conditions of this Agreement shall apply to all transactions pursuant to which Customer purchases, and Seller and/or any of its Affiliates furnishes, Products, Licensed Materials and/or Services for use by Customer, its Affiliates and/or any Designated Entity, and not for resale.
(b) New Customer Affiliates. If Customer acquires a new Affiliate following the date of this Agreement and such new Customer Affiliate is a party to one (1) or more agreements with Seller and/or one of Seller’s Affiliates (each agreement, a “Pre-Existing Affiliate Agreement”) covering substantially the same subject matter as this Agreement, Customer shall have the right, upon written notice to Seller, to terminate (or cause the Customer Affiliate to terminate) any and all Pre-Existing Affiliate Agreements between such new Customer Affiliate and Seller and/or one or more of its Affiliates without liability or penalty, and, upon Seller’s receipt of a written acknowledgment from the Customer Affiliate agreeing to be bound by the
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terms and conditions of this Agreement, all products, software and services acquired by such new Customer Affiliate from Seller and/or one of its Affiliates pursuant to such agreements thereafter shall be subject to the terms of this Agreement as though such products, software and services originally were provided to such new Customer Affiliate under this Agreement. Notwithstanding the preceding sentence: (i) the warranty periods set forth in a Pre-Existing Affiliate Agreement will continue to apply to the Products, Licensed Materials and Services purchased, licensed, delivered and performed under such Pre-Existing Affiliate Agreement; (ii) the prices, discounts, and credits set forth in this Agreement shall not retroactively apply to the Products, Licensed Materials and Services purchased, licensed, delivered and performed under a Pre-Existing Affiliate Agreement prior to the Effective Date; and (iii) ***.
     (c) Scope of the Initial Project. Seller and Customer acknowledge that the following represents generally the schedule of work to be performed hereunder to deploy, maintain and/or upgrades PCS CDMA System Products in the identified Markets. As soon as practicable, the Parties shall jointly develop detailed project plans and delivery and installation schedules consistent with the proposed schedule. The project plan will contain the responsibilities of both Parties. ***
                 
            Available for In Revenue
Market   Market Start   Service
***
  ***     ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
*   “Q” means quarter
1.4 ENTITLEMENT TO DISCOUNTS
     (a) General. Attachments A and C reflect the prices applicable to Customer following the application of discounts to Seller’s standard prices. These prices shall be provided to Customer regardless of the number or level of Purchase Orders made by Customer, it being the understanding of the Parties that neither Customer nor its Affiliates is under any obligation to purchase or license any quantity of Products, Licensed Materials and/or Services from Lucent under this Agreement. The Parties agree that Purchase Orders to be issued by Customer in accordance with the terms of this Agreement will determine the actual purchases and related rights, duties and obligations of the Parties pursuant to this Agreement. Attachments A and C may be modified from time to time by mutual written agreement of the Parties.
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     (b)     Exclusivity.     Subject to the further terms of this Agreement including, without limitation, the further terms of this Section, Customer’s right to receive the prices, discounts and incentives set forth in Attachment A are conditional upon Customer’s purchasing exclusively from Seller Customer’s requirements for PCS CDMA System Products for all of the Licensed Areas licensed to Customer as of the Effective Date hereof and for any additional Licensed Areas acquired by Customer during the Initial Term (and during any Renewal Term for which Customer elects to continue purchasing under Attachment A, as set forth in Section 1.2(b)). Except as expressly set forth in Attachment A, and for the avoidance of doubt, the prices, discounts and incentives for any Products and Licensed Materials that do not constitute PCS CDMA System Products shall not require Customer to purchase such Products and Licensed Materials exclusively from Seller.
If any of the following events occur, then Customer will be relieved from the above-described exclusivity obligations as specifically set forth below:
  (i)   If Customer ***, Customer shall be relieved from the exclusivity provisions of this Section ***.
 
  (ii)   If Customer is relieved of the above-described exclusivity provision under Section 1.6(a), the prices, discounts and incentives set forth in Attachment A will apply to any and all subsequently placed Purchase Orders.
 
  (iii)   If Customer is relieved of the above-described exclusivity provision under Section 1.6(b), the prices, discounts and incentives set forth in Attachment C will apply to any and all subsequently placed Purchase Orders.
 
  (iv)   Under Section 1.26(b), if Customer has the right to cancel Purchase Orders and/or contract with another supplier for any products, licensed materials or services that Seller cannot supply or perform because of a Force Majeure, then Customer will be relieved of its exclusivity obligations under this Section for so long as the Force Majeure prevents Seller from performing. ***
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***  If and when ***, Customer shall resume purchasing PCS CDMA System Products exclusively from Seller as provided in this Section in any Licensed Area where  ***.
  (v)   If Customer is permitted to purchase replacement products for a Discontinued Product from other suppliers as set forth in Sections 1.19(f), 2.2, 2.5 or 3.4, then Customer will be relieved of the above-described exclusivity provisions as provided in Sections 1.19(f), 2.2, 2.5 or 3.4, as applicable. If Customer subsequently orders from Seller the Discontinued Product or the other Products and Software that are an integral part of the Discontinued Product’s operation, the prices set forth in Attachment C will apply to such purchases.
 
  (vi)   ***
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Except when Customer is relieved of exclusivity pursuant to clauses (i) through (vi) above (but only to the extent relieved of exclusivity as provided above), if Customer has elected to purchase PCS CDMA System Products exclusively from Seller during the Initial Term or any Renewal Term, and ceases to purchase PCS CDMA System Products from Seller exclusively during such Term, then (i) Customer will no longer be entitled to the pricing set forth in Attachment A and the pricing set forth in Attachment C will apply to all of Customer’s purchases; (ii) ***; and (iii) ***. Such payment and repayment pursuant to the preceding sentence shall constitute Seller’s sole and exclusive remedy for Customer’s conversion from purchasing PCS CDMA System Products exclusively from Seller pursuant to Attachment A to Customer purchasing PCS CDMA System Products non-exclusively from Seller pursuant to Attachment C and, upon satisfaction of the requirements set forth in (i), (ii) and (iii) above, Customer will be deemed to have met its obligation, and such conversion shall not constitute a breach hereunder. Notwithstanding anything contained herein to the contrary, a renewal of this Agreement under which Customer purchases PCS CDMA System Products from the date of renewal from Seller non-exclusively pursuant to Attachment C shall not result in any payment to Seller.
Notwithstanding anything to the contrary in the Agreement or any Attachment, Customer shall have the right to purchase or license the Products, Licensed Materials and/or Services set forth on Attachments B, I, J and L at the prices (including, without limitation, all discounts, credits and incentives) and terms set forth in the applicable Attachment, irrespective of whether Customer fails to purchase or license the PCS CDMA System Products exclusively from Seller.
1.5 PLANNING INFORMATION
     Customer shall provide to Seller non-binding, rolling, four-quarter forecasts of Customer’s expected annual purchases under this Agreement. Customer shall deliver to Seller an updated version of each such rolling, four-quarter forecast on or before the beginning of each calendar quarter during the Term of this Agreement. Customer will endeavor to make such forecast and each quarterly update thereto accurate to within plus or minus *** of Customer’s actual Purchase Orders for the applicable quarter and within plus or minus *** with respect to the next approaching quarter of each rolling, four-quarter forecast. If, for any particular quarter, Customer’s actual purchasing requirements exceed Customer’s most recent forecast for that quarter by more than ***, Seller will have no obligation to ***.
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     Furthermore, the Parties shall meet on a semi-annual basis, or as otherwise mutually agreed, to review product and software development plans and requirements. In addition, Seller shall update Customer as to Seller’s planned product and software developments and schedules, and Customer shall update Seller as to Customer’s desired future services and product and software requirements.
1.6 ORDERS
     All Purchase Orders submitted by Customer shall be deemed to incorporate and be subject to the terms and conditions of this Agreement unless otherwise agreed in writing.
     (a) General. All Purchase Orders, including electronic Purchase Orders, shall contain the information detailed below:
  (i)   complete and correct ship to and bill to addresses;
 
  (ii)   the quantity and type of Products, Licensed Materials and/or Services being ordered;
 
  (iii)   the price or the appropriate pricing mechanism;
 
  (iv)   the Customer-requested Delivery Date in accordance with the Standard Interval for the Product, Licensed Materials or Service being ordered. A non-Standard Interval must be mutually agreed to by the Parties;
 
  (v)   the requested Turnover date in accordance with the Standard Interval for the Product, Licensed Materials or Service being ordered; and
 
  (vi)   reference to this Agreement.
Upon acceptance of the Purchase Order by Seller, the Customer requested delivery date contained in the Purchase Order will be deemed to be the delivery date for purposes of the Purchase Order
No provision or data on any Purchase Order or contained in any documents attached to or referenced in any Purchase Order or in any subordinate document (such as shipping releases), shall be binding, except data necessary for Seller to fill the Purchase Order. All such other data and provisions are hereby rejected. Electronic Purchase Orders shall be binding on Customer notwithstanding the absence of a signature. Electronic Purchase Orders shall be subject to the Purchase Order acceptance confirmation procedures under this Section. Customer shall be provided a sample Purchase Order format in order to comply with the requirements herein.
Promptly following receipt thereof, Seller shall acknowledge the date of Purchase Order receipt either in writing or electronic data interface format. If a Purchase Order is deemed accepted as provided below, the date of the Purchase Order will be the Price Effective Date for purposes of this Agreement.
All Purchase Orders are subject to acceptance by Seller; provided, however, that if Seller does not accept Purchase Orders that: (1) are submitted in accordance with, and comply with, the terms and conditions of this Agreement (including, without limitation, the lead times set forth in Attachment H); (2) the quantities of Products, Software and Services ordered are within the parameters of the forecasts submitted by Customer pursuant to Section 1.5; and (3) Customer is
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sufficiently Creditworthy, and has not materially breached any of its material obligations under this Agreement, and Seller does not otherwise accept the Purchase Order for reasons other than a Force Majeure, Customer will be ***.
If receipt of a Purchase Order is acknowledged by Seller, if not sooner accepted or rejected in writing by Seller, Purchase Orders submitted for Products, Licensed Materials, and/or Services in accordance with the terms and conditions of this Agreement shall be deemed accepted within ten (10) days of Purchase Order receipt by Seller.
Notwithstanding anything to the contrary in this Agreement or any Attachment, Customer is not required and/or obligated to purchase or license any Product, Software, Licensed Material, PCS CDMA System Product, PCS System, Information, Related Documentation, Service, Know-How or any other product or service from Lucent under this Agreement except as set forth in a duly authorized, accepted Purchase Order.
     (b) Credit Worthiness. Seller reserves the right to place any Purchase Order on hold, delay shipment, suspend performance (in each case with respect to a Product, Licensed Material or Service not yet paid for by Customer) and/or reject a Purchase Order: (i) if Customer is not Creditworthy; or (ii) if Customer has materially breached any of its material obligations under this Agreement, but only until such time as the material breach has been cured. In the event that Seller places any Purchase Order(s) on hold, delays shipment, suspends performance and/or rejects a Purchase Order due to insufficient Creditworthiness, or due to Customer’s uncured material breach of this Agreement, the Parties promptly shall meet in an effort to resolve the matter, and the delivery and performance schedules under this Agreement shall be extended by the period of time required for Customer and Seller to mutually resolve the insufficient Creditworthiness or material breach. Notwithstanding the foregoing, if the Parties have not agreed on the resolution of any such matter within thirty (30) calendar days after Seller places a Purchase Order on hold, delays shipment, suspends performance and/or rejects a Purchase Order. Customer may, in addition to any other remedies available to it under this Agreement (i) cure all such material breaches of this Agreement, shall pay in full for all Products, Licensed Materials or Services ordered but not yet paid, and shall continue to pay in full for all Products, Licensed Materials and Services at the time of placing each subsequent Purchase Order, or (ii) ***.
After Customer’s auditors complete their audit of Customer’s 2004 financial statements, Customer shall submit to Seller upon request: (i) no later than 150 days after fiscal year end, Customer’s audited annual consolidated financial statements and their respective consolidated balance sheets and statements of operations, stockholders equity and cash flows for the fiscal year then ended prepared in accordance with GAAP by an independent accounting firm; and (ii) no later than 45 days after the end of each fiscal quarter, Customer’s consolidated financial
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statements for each of the first three fiscal quarters of the fiscal year and their respective consolidated balance sheets and statements of operations, stockholders equity and cash flow for the fiscal quarter then ended prepared in accordance with GAAP.
     (c)     Purchase Order Communications. Notwithstanding communications and notices addresses as set forth in Section 1.22, the Parties will route all communications relating to Purchase Orders as follows:
To Seller:
Lucent Technologies Inc.
***
Sales Support — Order Entry
82N160
800 North Point Parkway
Alpharetta, GA 30005
***
***
***
Lucent Technologies Inc.
***
Regional Sales Director, Major Accounts
***
***
***
To Customer:
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Senior Vice President and Chief Financial Officer
***
1.7CUSTOMER-INITIATED CHANGES
     (a)   General. Customer has the right to request expansions, other revisions and/or modifications to any Purchase Order (“Customer Changes”),including but not limited to, the Specifications, the manner of performance of the Services to be performed or the timing of the completion of Services to be provided under the Purchase Order. All Customer Changes shall be subject to the prior written consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed. All Customer Changes shall be documented in a written change order in a form substantially similar to the form set forth in Attachment F (“Change Order”) and will be subject to the procedures set forth in Attachment F. Seller shall promptly notify Customer of any
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such requested Customer Changes which may materially affect the operation and/or maintenance of any PCS System or any part thereof.
     (b) Disputes. If the Parties cannot agree on a Change Order within fifteen (15) days following Customer’s submission of a Customer Change to Seller, the matter shall then be referred to dispute resolution pursuant to Section 1.35.
1.8 SELLER-INITIATED CHANGES
     (a) General. Seller has the right to request revisions and/or modifications to any Purchase Order (“Seller Changes”), including but not limited to, the Specifications, the manner of performance of the Services to be performed or the timing of the completion of the Services to be provided under the Purchase Order, if Customer has not performed its obligations under this Agreement beyond any applicable grace periods. All Seller Changes shall be subject to the prior written consent of Customer, such consent not to be unreasonably withheld, conditioned or delayed. All Seller Changes shall be documented in a Change Order and will be subject to the procedures set forth in Attachment F. Seller shall promptly notify Customer of any such requested Seller Changes which may materially affect the operation and/or maintenance of any PCS System or any part thereof.
     (b) Disputes. If the Parties cannot agree on a Change Order within fifteen (15) days following Seller’s submission of a Seller Change to Customer, the matter shall then be referred to dispute resolution pursuant to Section 1.35.
1.9 PRICES
     (a) General. Prices, fees, and charges (hereinafter “prices”) shall be as set forth in Seller’s Customer Price Lists, firm price quotations, specific agreements, or other prices submitted by Seller to Customer, as modified by and subject to the applicable terms of any Attachment to this Agreement that includes pricing information including, without limitation, Attachments A, C and J. The discounts and incentives referenced in Attachments A and C will remain in effect for the Term of the Agreement in accordance with the other terms and conditions thereof.
     (b) Customer Price List Pricing. In those cases where a price is to be determined from a Customer Price List, the applicable Customer Price List shall be that Customer Price List which is in effect on the Price Effective Date for the applicable Purchase Order, provided that the Guaranteed Delivery Date for the deliverables referenced in such Purchase Order is scheduled to occur within twelve (12) months of the Price Effective Date. If Customer submits a Purchase Order and the requested Guaranteed Delivery Date exceeds such twelve (12) month period, and Seller has on thirty (30) days prior written notice issued a revised Customer Price List to Customer prior to such Guaranteed Delivery Date, Customer shall have the right to cancel such Purchase Order without any penalty or liability or, at Customer’s request, the Parties will utilize the Change Order process hereunder to determine reasonable adjustments to the Purchase Order including, without limitation, prices payable by Customer under such Purchase Order.
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     (c) Other Pricing. In those cases where the price is not to be determined from a Customer Price List, a firm price quotation, or specific agreement, the applicable price (before applying the allowances available under this Agreement) will be Seller’s price in effect on the date of Seller’s receipt of the Purchase Order. Seller may amend its prices prior to the Price Effective Date, other than those subject to accepted Purchase Orders, firm price quotations or other agreements between the Parties, on thirty (30) days prior written notice.
     (d) ***
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1.10    INVOICES AND TERMS OF PAYMENT
     (a) Invoicing. Fees and charges for Products and Licensed Materials (including domestic transportation charges and taxes, if applicable) will be billed by Seller when shipped, or as soon thereafter as practicable. Services will be billed upon Seller’s notice of Installation Completion for installation Services and upon completion of any other non-recurring Services. ***. Customer shall pay invoiced amounts, less any disputed amounts, within thirty (30) days following the date of Seller’s invoice. Customer shall have the right to pay any amounts due Seller hereunder using Electronic Funds Transfer (“EFT”). ***. Payments which are undisputed and delinquent more than forty-five (45) days after the invoice date are subject to a late payment charge at the rate of *** per month, or portion thereof, of the undisputed amount due (but not to exceed the maximum lawful rate); provided, however, that: (i) the accrual of any late payment charges provided in this sentence shall not operate to waive or impede Customer’s right to dispute an invoice and/or payment at any time; and (ii) irrespective of when an invoice and/or payment is disputed, Customer shall not be liable for any late payment charges related to invoice disputes resolved in Customer’s favor. Invoices must describe the Products and Licensed Materials provided and Services performed, as applicable, and the amounts due and any applicable taxes and domestic transportation charges. Customer promptly shall pay any disputed items which are determined to be valid payments due to Seller pursuant to the dispute resolution process. Customer agrees to pay Seller’s reasonable attorneys’ fees and other reasonable costs incurred by Seller in collection of any undisputed amounts invoiced hereunder.
     (b) Payments to Subcontractors. Seller will pay each Subcontractor the amount to which each Subcontractor is entitled pursuant to such Subcontractor’s agreement with Seller, based on each Subcontractor’s portion of any Services. By appropriate agreement in each Subcontractor’s agreement with Seller, Seller will require such Subcontractor to make payments to sub-Subcontractors and materialmen in a similar manner. Customer shall have no obligations to pay any amount to which a Subcontractor may be entitled pursuant to its agreement with Seller including, without limitation, any indemnity, damage or penalty. Customer has no duty or obligation to ensure the payment of money to a Subcontractor, sub-Subcontractor, materialman or any other third party, any such payment being the obligation of Seller, and, subject to the process requirements set forth in Sections 1.28(a) (iii) (A), (B) and (C), Seller shall indemnify, defend and hold the Customer Indemnified Parties harmless from and against any such payment obligations, and from and against any payment dispute between Seller and any such third party including, without limitation, any dispute over Seller’s failure to pay monies owed to any such third party. The Parties hereby agree that Subcontractors, sub-Subcontractors, materialmen and
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any other third parties will not be deemed third party beneficiaries of this Agreement, including Customer’s obligations to pay Seller.
     (c) Disputed Invoices. If an invoiced amount is disputed in good faith by Customer then, until resolution of the dispute occurs pursuant to Section 1.35, Customer may suspend disputed payments and toll the running of time for default by paying the undisputed amount, if any, and sending a written statement of exceptions to Seller. All of Seller’s obligations shall continue unabated during the duration of the dispute resolution.
     (d) Allocation of Payments. Notwithstanding anything that may be contained herein to the contrary, Seller shall allocate all payments made by Customer to Seller under this Agreement to the satisfaction of those Purchase Orders identified by Customer with, or within thirty (30) days following, any payment to Seller. If Customer fails to identify the Purchase Order(s) to be satisfied by any payment within such thirty (30) day period, Seller may allocate the payment to the satisfaction of the oldest Purchase Order(s) for which Customer has not disputed its payment obligations.
1.11 DELIVERY AND INSTALLATION SCHEDULE
     (a) Site Preparation. Customer shall notify Seller when the PCS Site(s) for the Products described in any Purchase Order are ready for installation and Customer’s responsibilities under Article IV relating to such Sites have been performed or furnished by the date mutually agreed to by the Parties. Such date shall be determined by the Parties prior to Purchase Order acceptance. Seller shall have access to such Sites on and after the date of Seller’s receipt of such notification (the “Start Date”).
     (b) Schedules. The Parties agree to develop, by mutual agreement, delivery and installation schedules (all consistent with the Standard Intervals, unless otherwise agreed to by the Parties) under which Customer and Seller shall complete their respective obligations as required under this Agreement.
     (c) Delivery Delays Initiated by Customer. Upon written notice to Seller prior to the shipment date, Customer shall have the right to suspend or reschedule Delivery of Products and/or Licensed Materials not in excess of *** calendar days beyond the date originally scheduled for the Delivery thereof without additional payment or penalty to Seller of any kind whatsoever. If any Customer-requested Delivery suspension continues for *** calendar days beyond the originally scheduled Delivery Date for a Product and/or Licensed Materials. Customer shall either: (i) cancel the Purchase Order, in which case the terms of Section 1.18 shall apply; or (ii) authorize Seller to deliver the applicable Products and/or Licensed Materials to Customer.
     (d) Seller’s Delivery or Installation Delays. If Customer reasonably determines that Seller is likely to fail to meet a Standard Interval or other Delivery or installation deadline mutually agreed in writing, then in addition to any other rights and remedies that may be available to Customer, at no additional cost to Customer and at Customer’s request, Seller shall provide to Customer all necessary additional Seller personnel to accelerate performance as may
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be required or necessary to timely achieve the Delivery or installation deadline or, if Seller has already failed to meet one (1) or more Delivery or installation deadlines, complete the Delivery or installation deadline within a re-adjusted time frame established by Customer. *** Notwithstanding any of the foregoing. Seller shall not be obligated to provide additional personnel *** to Customer as provided in this Section if and to the extent that Seller’s failure to achieve a Delivery or installation deadline is caused by Customer’s failure to perform any material obligation that is a precondition to Seller’s ability to timely achieve such Delivery or installation deadline, provided that Seller previously communicated to Customer in writing: (i) Customer’s failure to perform such material obligation; and (ii) the fact that such failure might impact Seller’ ability to meet a Delivery or installation deadline.
1.12  TRANSPORTATION
     (a) General. Seller’s prices for Products and Licensed Materials do not include ordinary domestic freight charges or related domestic transportation services or charges therefor, including hauling, hoisting and warehousing, unless expressly stated in writing by Seller to the contrary. Seller, in accordance with its normal practices, will arrange for transportation for such items, will prepay transportation, if appropriate, and invoice transportation charges. If Customer elects to route Products and/or Licensed Materials or to arrange for transportation, Seller will provide related Services subject to a separate fee.
     (b) Premium Transportation. Premium domestic transportation will only be used only with Customer’s written concurrence. If premium transportation is used in order for Seller to meet a Guaranteed Delivery Date, the difference between the cost of ordinary transportation and premium transportation will be at Seller’s sole cost and expense.
1.13  PACKING, MARKING AND SHIPPING
     (a) General. Seller shall, at no additional charge, pack and mark shipping containers in accordance with its standard practices for domestic shipments. Where, in order to meet Customer’s requests, Seller packs and/or is required to mark shipping cartons in accordance with Customer’s specifications, Seller shall invoice Customer additional charges for such packing and/or marking.
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     (b) Packing Memorandum; Marking. Seller shall:
     (i) Enclose a packing memorandum with each shipment and, if the shipment contains more than one package, identify the package containing the memorandum; and
     (ii) Mark Products as practicable for identification in accordance with Seller’s marking specifications (e.g., model/serial number and month and year of manufacture).
     (c) Partial Shipments. Partial shipments of Products and Licensed Materials ordered under a Purchase Order may be made by Seller and separately invoiced, provided that the full order is received by the Guaranteed Delivery Date specified in the accepted Purchase Order, and provided further that the shipping costs to Customer shall not exceed the amount Customer would have been required to pay for a single shipment.
1.14 TITLE AND RISK OF LOSS
     (a) General. Title to a Product, and risk of loss and damage to a Product, Licensed Material, or other item furnished to Customer under this Agreement, shall pass from Seller to Customer upon Delivery to the Customer-designated destination established in the Purchase Order for the item. Delivery will be evidenced by signature of an employee, agent, Subcontractor orrepresentative of Customer on a receipt or bill of lading. Customer shall not unreasonably withhold, condition or delay Delivery or signature on such receipt or bill of lading. Customer shall be responsible for any additional reasonable and necessary out-of-pocket expenses relating to Customer’s unreasonably withholding, conditioning or delaying Delivery or signature on the receipt or bill of lading. Seller shall at all times remain responsible for damage or loss to Products and/or Licensed Materials caused by the employees, agents and/or representatives of Seller and/or its Subcontractors. Unless otherwise specified in a written quotation, Purchase Order or Attachment to this Agreement, and except with respect to Repair Parts and Products used to effect a repair or replacement, Seller represents and warrants to Customer that the Products and any components thereof are and shall be entirely new and free and clear of all liens, claims and encumbrances. Seller retains title to all Licensed Materials and all copies thereof. Seller represents and warrants to Customer that all Repair Parts are new, remanufactured, reconditioned,refurbished, or functionally equivalent and operate in accordance with the Specifications of the related parts and/or Products.
     (b) Claims. Customer shall notify Seller promptly of any claim with respect to a loss which occurs while Seller has the risk of loss and Seller shall notify Customer promptly of any claim with respect to a loss which occurs while Customer has the risk of loss. Both Parties shall cooperate in every reasonable way to facilitate the settlement of any claim. Nothing herein shall,during the period Seller has the risk of loss to an item, relieve Customer of responsibility for loss to the item resulting from the negligence of the employees, agents and/or representatives of Customer.
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1.15 COMPLIANCE WITH LAWS
The Parties shall comply with all Applicable Laws. Furthermore, except as specifically provided in this Agreement, each Party shall obtain and maintain, at its own expense, all Applicable Permits and pay all associated fees and expenses. Seller shall be responsible for ensuring that its Subcontractors, if any, comply with all Applicable Laws, and obtain and maintain all Applicable Permits.
1.16 TAXES
     (a) General. Customer shall be liable for, and shall reimburse Seller for, all taxes and related charges, however designated, (excluding taxes on Seller’s net income) imposed upon or arising from Seller’s provision of Services, or the transfer, sale, license, or use of Products, Licensed Materials, or other items provided by Seller pursuant to Purchase Orders submitted by Customer. Taxes reimbursable under this paragraph shall be separately listed on the invoice. If Customer pays any taxes for which Seller is either reimbursed or receives a credit from the applicable taxing authority, then Seller shall reimburse Customer an amount equal to such credit or reimbursement within five (5) Business Days following receipt of such reimbursement or credit.
     (b) Exemptions. Seller shall not collect otherwise applicable taxes if the front of any Purchase Order indicates that the purchase is exempt from Seller’s collection of such taxes and a valid tax exemption certificate is furnished by Customer to Seller.
     (c) Protested Taxes. Seller shall promptly notify Customer in writing of: (i) any Tax Assessment by a state or local taxing authority; and (ii) any decision with respect to a Tax Assessment which has been appealed or protested; provided, however, that Seller shall in all instances give Customer notice of such event no later than ten (10) days prior to the date by which a response, protest, contest, or other appeal of such Tax Assessment must be filed. In the first instance, Seller shall have the exclusive right to contest any Tax Assessment at its own expense. In the event that all or any portion of a Tax Assessment must be paid in order to contest the imposition of any such Tax Assessment in connection with a contest that Seller elects to pursue, or to avoid the existence of a lien on the assets of Seller during the pendency of such contest, Seller shall be responsible for such payment and shall be entitled to the benefit of any refund or recovery. Customer shall pay all valid final and non-appealable Tax Assessments (or reimburse Seller in the event Seller pays any or all valid final and non-appealable Tax Assessments) upon presentation by Seller of proof of a valid final and non-appealable Tax Assessment. A “valid final and non-appealable Tax Assessment” shall mean one that is issued by a state or local taxing authority in accordance with the applicable law and which is not subject to any further administrative or judicial review and all times for appeal, reconsideration, or requests for reassessment have run without an appeal, reconsideration, or request for reassessment having been taken. In the event Seller elects not to contest a Tax Assessment, Seller must either: (iii) waive its right to reimbursement from Customer for that Tax Assessment in which event Customer shall have no right to contest the Tax Assessment and Customer shall have no liability for such Tax Assessment; or (iv) promptly notify Customer that it is: (A) not responding, protesting, contesting, or appealing the Tax Assessment: and (B) seeking reimbursement for the Tax Assessment as if it were a valid final and non-appealable Tax
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Assessment which notice shall set forth the legal and/or factual basis for not contesting the Tax Assessment along with a copy of the Tax Assessment; provided, however, that Seller shall in all instances give Customer notice of such decision to not protest, contest or appeal such Tax Assessment no later than ten (10) days prior to the date by which a response, contest, protest or other appeal of such Tax Assessment must be filed; provided, further, that Seller may not elect option (iv) (e.g., to notify Customer and not protest, contest, or appeal a Tax Assessment) unless Seller has a good faith belief that there is no reasonable basis in law or fact for a contest, protest, or appeal of such Tax Assessment; provided, finally, that in the event that Seller elects option (iv) and fails to notify Customer in time to allow Customer to file a response, protest, or contest, Seller shall be deemed to have waived its right to seek reimbursement from Customer for that Tax Assessment. In the instance Seller notifies Customer that it is not contesting the Tax Assessment, Customer may elect, at it sole discretion, to pursue the contest of the Tax Assessment in good faith, at its own expense, or to pay to Seller the Tax Assessment. In the event Customer elects to contest a Tax Assessment and, further, in the event that all or a portion of a Tax Assessment must be paid in order to contest the imposition of any such Tax Assessment or to avoid the existence of a lien on the assets of Seller during the pendency of such contest, Customer shall be responsible for such payment. In the event that any such contest must be pursued in the name of Seller, Seller shall permit Customer to pursue and control the contest in the name of Seller, and Seller shall have the opportunity to participate fully in the preparation of such contest at its own expense. In any contest of a Tax Assessment, the Party bringing the protest shall promptly furnish the other Party with notice of the pending proceeding, copies of all filings in any proceeding, protest, contest, or legal challenge, all rulings issued in connection therewith, all correspondence between such Party and the state or local taxing authority, the final resolution thereof, and any action therein that would affect Seller’s obligation to collect and remit, and the Party bringing the contest shall allow the other Party to participate in such contest with its own counsel at its own expense.
1.17 TRAINING
Seller will make available Seller’s standard training for Customer’s personnel in the planning for, operation and maintenance of Products and Software furnished hereunder in accordance with the terms set forth in Attachment B.
1.18 TERMINATION OF ORDERS FOR CONVENIENCE
Customer may, upon written notice to Seller, terminate any Seller-accepted Purchase Order or portion thereof, except with respect to Products or Licensed Materials that have already been shipped and Services that have already been performed.
Upon any such termination or cancellation, for those Products not shipped but considered stock items, Customer agrees that it will pay Seller a cancellation fee equal to *** of the price or license fee for such items (determined as of the Price Effective Date). ***
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For those Products and Licensed Materials not shipped and considered customized or non-stock items, Customer agrees to pay a cancellation fee based upon Seller’s engineering fees, reasonably incurred out-of-pocket expenses (after adjustment for recoveries and/or salvage value, if any) plus *** but in no case more than ***, unless otherwise agreed to by Customer and Seller.
1.19 TERMINATION FOR BREACH
     (a) Customer Events of Default. Seller shall have the right to terminate this Agreement in its entirety and/or terminate affected Purchase Orders only without any penalty or payment obligation (subject to subsections 1.19(c) and 1.19(f) below) upon the occurrence and during the continuance of any of the following events, each of which shall constitute a material breach of this Agreement by Customer (each, a “Customer Event of Default”):
     (i) Customer: (A) files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it that is not dismissed within sixty (60) days of such involuntary filing, (B) admits the material allegations of any petition in bankruptcy filed against it, (C) is adjudged bankrupt, (D) is unable generally to pay its debts as they mature, (E) makes a general assignment for the benefit of its creditors, or has a receiver appointed for all or a substantial portion of its assets that is not discharged within sixty (60) days after such appointment, or (F) commences any proceeding for relief from its creditors in any court under any state insolvency statutes; or
     (ii) Customer assigns performance of its obligations other than as permitted under this Agreement; or
     (iii) Customer fails to timely pay any undisputed amount owed to Seller, provided that such failure is not cured within thirty (30) calendar days following Customer’s receipt of written notice from Seller requiring it to do so; or
     (iv) Customer materially breaches any other obligation under this Agreement, provided that such material breach is not cured, or if the material breach is incurable, substantial progress toward a cure has not been made, within thirty (30) calendar days following Customer’s receipt of written notice from Seller requiring it to do so.
     (b) Seller Events of Default. Customer shall have the right to terminate this Agreement in its entirety and/or terminate affected Purchase Orders only without any penalty or payment obligation (subject to subsections 1.19(c) and 1.19(f) below) upon the occurrence and during the continuance of any of the following events, each of which shall constitute a material breach of this Agreement by Seller (each, a “Seller Event of Default”) :
     (i) Seller, upon written notification and a period of thirty (30) days, fails to fulfill its obligations with respect to the satisfaction, discharge or bonding of liens as set forth herein; or
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     (ii) Seller misses a Guaranteed Delivery Date as specified in an accepted Purchase Order by more than *** beyond the Standard Interval for any Products or Licensed Materials; provided that such failure to achieve such date was not caused by: (a) a Force Majeure event; and/or (b) Customer’s failure to perform any material obligation that was a pre-condition to Seller’s ability to timely achieve such Guaranteed Delivery Date, in which event, Seller will be entitled to an extension of the Guaranteed Delivery Date equal to the period of Customer’s delay plus, pursuant to Section 4.6 hereof, a commercially reasonable time thereafter; or
     (iii) Seller materially breaches any service, support or maintenance services obligation, provided that such material breach is not cured within thirty (30) calendar days (or any longer cure period that may be set forth in a specific Section of this Agreement, as applicable) following Seller’s receipt of written notice from Customer requiring it to do so; or
     (iv) Seller materially breaches any representation or warranty set forth in this Agreement, provided that such material breach is not cured within thirty (30) calendar days (or any longer cure period that may be set forth in a specific Section of this Agreement, as applicable) following Seller’s receipt of written notice from Customer requiring it to do so; or
     (v) Seller fails to maintain insurance coverage as specified in Section 1.41, provided that such failure is not cured within thirty (30) calendar days following Seller’s receipt of written notice from Customer requiring it to do so; or
     (vi) Seller: (A) files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it that is not dismissed within sixty (60) days of such involuntary filing, (B) admits the material allegations of any petition in bankruptcy filed against it, (C) is adjudged bankrupt, (D) is unable generally to pay its debts as they mature, (E) makes a general assignment for the benefit of its creditors, or has a receiver appointed for all or a substantial portion of its assets that is not discharged within sixty (60) days after such appointment, or (F) commences any proceeding for relief from its creditors in any court under any state insolvency statutes; or
     (vii) Seller disregards or violates any Applicable Laws or Applicable Permits which have a material adverse effect on the business, financial condition or operations of Customer; or
     (viii) Seller assigns performance of its obligations other than as permitted under this Agreement; or
     (ix) Seller materially breaches any other obligation under this Agreement, provided that such material breach is not cured, or if the material breach is incurable, substantial progress toward a cure has not been made, within thirty (30) calendar days following Seller’s receipt of written notice from Customer requiring it to do so.
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     (c) Effect of Termination. If either Party terminates this Agreement and/or affected Purchase Orders, both Parties will be responsible for performing their respective obligations under this Agreement up through the date of termination (and thereafter to the extent this Agreement and/or non-terminated Purchase Orders remain in effect following such termination). In any event, Seller’s obligations hereunder with respect to Products already delivered, installed and not returned, and Customer’s obligations with respect to payments for Products not returned, shall continue in full force and effect.
     (d) Seller’s Remedies. Without limiting any other rights and remedies that may then be available to Seller, upon the occurrence of a Customer Event of Default, subject to Customer’s rights under Section 1.19(f), Seller shall be entitled to:
     (i) Subject to the terms of Section 1.25, seek to recover damages from Customer; and/or
     (ii) If applicable, seek to obtain the additional rights and remedies set forth in Section 1.19(g); and/or
     (iii) If permitted under Section 3.9. terminate affected Software licenses.
***
     (e) Customer’s Remedies. Without limiting any other rights and remedies that may then be available to Customer, upon the occurrence of a Seller Event of Default, Customer shall be entitled to:
     (i) Subject to the terms of Section 1.25, seek to recover damages from Seller; and/or
     (ii) Receive a full refund of all amounts paid to Seller with respect to terminated Purchase Orders, which refund shall be paid by Seller to Customer within fourteen (14) calendar days following Seller’s receipt of Customer’s demand for such refund; and/or
     (iii) Receive a full refund of all pre-paid but unearned amounts paid to Seller (such as, by way of example and not of limitation, pre-paid support or maintenance fees), which refund shall be paid by Seller to Customer within fourteen (14) calendar days following Seller’s receipt of Customer’s demand for such refund; and/or
     (iv) If applicable, obtain the additional remedies described in Section 1.19(f); and/or
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     (v) If applicable, seek to obtain the additional rights and remedies set forth in Section 1.19(g).
     (f) Transition. Upon a complete or partial termination of this Agreement and/or a Purchase Order for any reason, provided such termination results in the termination of Customer’s right to use Products or Licensed Materials acquired hereunder or thereunder as provided in Section 3.9, Customer shall have the option, for up to *** (the “Transition Period”), to continue to use the applicable Product or Licensed Materials, or any portion thereof, for the purposes set forth herein and upon the terms and conditions set forth herein, ***. During such Transition Period, Seller shall make available to Customer (subject to a written agreement) all support and maintenance services and all other Services necessary for an orderly transition of the Product or Licensed Materials. If this Agreement and/or a Purchase Order is completely or partially terminated, the Services provided by Seller during the Transition Period shall be provided at the prices and on the terms and conditions then in effect on the termination date except that Customer shall be relieved of any exclusivity commitment.
     (g) Remedies Cumulative. Unless this Agreement expressly provides that a remedy is the “sole and exclusive” remedy, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies that may be available at law or in equity.
     (h) Equitable Relief. Notwithstanding anything contained in this Agreement to the contrary, the Parties shall be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a Party to seek such equitable relief in a court of competent jurisdiction.
1.20 PATENTS, TRADEMARKS AND COPYRIGHTS
     (a) Infringement Claims. In the event of any notice, charge, demand, complaint, claim, action, proceeding or suit by a third party against any Customer Indemnified Party alleging: (i)(A) infringement *** of any intellectual property rights of a Third Party, including but not limited to, any patent, copyright or trademark; or (ii) that any Customer Indemnified Party is required to obtain a license under any intellectual property rights of a Third Party (including but not limited to, any patent, copyright or trademark) to exercise any rights granted by Seller under this Agreement; or (iii) a misappropriation, conflict or other violation of any intellectual property rights of a Third Party, including but not limited to, any trade secret or other proprietary right, by reason of: (1) the Use, purchase, offer to sell, reproduction, and/or sale, all of the foregoing in accordance with this Agreement by, or the exercise of any rights granted by Seller hereunder to, Customer, its Affiliates, Designated Entities, their customers and/or Authorized Users of any *** Products, Software, Licensed Materials, Information, Know-How and/or Specifications; and/or (2) the exercise of any rights granted by Seller hereunder to Customer, its Affiliates, their customer and/or Authorized Users, including, but not limited to, the rights granted in Sections 1.21, 1.27, 2.6, 3.2, 3.3, and 3.6; (3) the performance of any Services by or on behalf of Seller and/or any
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Customer Indemnified Party under this Agreement; (each, an “Infringement Claim”), Seller, at its expense, will indemnify, defend and hold harmless Customer and its Affiliates, and their respective directors, officers, employees, *** representatives, agents, *** (collectively, the “Customer Indemnified Parties”) from and against any and all losses, liabilities, suits, damages and claims (including reasonable attorneys’ fees) arising out of any such Infringement Claim, subject to the conditions and exceptions stated below. Without Customer’s prior written consent, Seller will not agree to any settlement or any compromise that does not provide a full and complete release of the Customer Indemnified Parties from any and all liability with respect to such Infringement Claim. If the terms of such a proposed settlement would require a Customer Indemnified Party to take any action (including, without limitation, to pay money damages that will not be paid in full by Seller, or to refrain from taking any action), Seller shall obtain Customer’s prior written consent to those terms of the settlement.
     Customer shall have the right, at its expense, to employ separate counsel to participate in the defense of an Infringement Claim on behalf of any Customer Indemnified Party.
     (b) Injunctions. If use of any Products and/or Licensed Materials by Customer and/or its Affiliates is enjoined or in Seller’s opinion is likely to be enjoined or subject to an Infringement Claim, Seller, at its expense and at Seller’s option (following consultation with Customer), will either: (i) replace such Product or Licensed Materials with a substitute product and/or licensed materials that have substantially the same Form, Fit, Function and performance capabilities but that are free of any infringement; (ii) modify such Product or Licensed Materials so that they will be free of the infringement while retaining substantially the same Form, Fit, Function and performance capabilities; or (iii) procure for Customer a license or other right to use such Products and/or Licensed Materials. If, after exercising its best efforts, none of the foregoing options can be implemented by Seller within a reasonable period of time, Seller shall, at its sole cost and expense, accept return of the Products and/or Licensed Materials that are the subject of such injunction and: (A) exercises its best efforts to procure for Customer a transitional period of continued use of such Products and/or Licensed Materials as provided in Section 1.19(f) but, in any event makes available to Customer the other transition services described therein; and (B) promptly refunds to Customer any amounts paid to Seller for the affected Products and/or Licensed Materials, ***.
     (c) Notice and Cooperation. Customer shall give Seller prompt notice of all Infringement Claims, and Seller shall have full and, subject to the restrictions set forth in subsection (a) above, complete authority to assume the sole defense of them, including appeals, and to settle them. Customer shall, upon Seller’s request and at Seller’s expense, furnish all information and assistance reasonably available to Customer and cooperate in every reasonable way to facilitate the defense and settlement of any Infringement Claim.
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     (d) Exclusions. Seller shall not be responsible or liable for any Infringement Claim to the extent that it: (i) arises from adherence to design modifications, specifications, drawings, or written instructions which Seller is directed by Customer to follow; or (ii) arises from
adherence to instructions to apply Customer’s trademark, trade name or other company identification; or (iii) resides in a product or licensed materials which are not of Seller’s origin and which are furnished by Customer to Seller for use under this Agreement; (iv) relates to a modification made by Customer of any Product or Licensed Materials not authorized, permitted or directed by Seller; or (v) relates to uses of any Product or Licensed Materials provided by Seller in combination with any other item not furnished, recommended in writing or otherwise approved in writing directly by Seller, or (vi) relates to Customer Indemnified Party’s continued infringement after (a) Seller has notified Customer in writing that a Product or Licensed Material or service may infringe the intellectual property rights of a Third Party, (b) Seller has agreed to indemnify Customer for any such infringement, (c) Seller has provided to Customer the remedies set forth in paragraph (b) of this Section, and (d) Customer Indemnified Party has failed to implement or allow Seller to implement the remedies provided in subsection 1.20(b). In the foregoing cases numbered (i) through (vi), Customer will indemnify, defend and save Seller harmless, subject to the same terms and conditions and exceptions stated above with respect to Seller’s rights and obligations under this Section.
     (e) Remedies. The liability of Seller and Customer with respect to any and all claims, actions, proceedings or suits by third parties alleging infringement of patents, trademarks or copyrights or violation of trade secrets or proprietary rights because of, or in connection with, any Products or Licensed Materials furnished under this Agreement, shall be limited to the specific undertakings in this Section.
1.21 USE OF INFORMATION
     (a) Use and Disclosure Restrictions. All Information including, without limitation. Information which bears a legend or notice restricting its use, copying or dissemination, shall remain the property of the furnishing Party. Such Information shall: (i) not be reproduced or copied, in whole or part, except for use as authorized in this Agreement; and (ii) together with any full or partial copies thereof, be returned or destroyed when no longer needed. Moreover, when Seller is the receiving Party, Seller shall use such Information only for the purpose of performing under this Agreement, and when Customer is the receiving Party, Customer shall use such Information only: (iii) to order Products, Licensed Materials and/or Services; (iv) to evaluate Products, Licensed Materials and/or Services; and (v) to install, operate, and maintain the particular Products or Software for which it was originally furnished. The foregoing use restrictions set forth in this Section 1.21 shall not apply to Information that: (vi) is or hereafter becomes, through no act or failure to act on the receiving Party’s part, generally known in the relevant industry; or (vii) is furnished to the receiving Party by a third party as a matter of right without restriction on disclosure; or (viii) is independently developed by the receiving Party or a third party without use of or reference to the disclosing Party’s Information. Unless the furnishing Party consents in writing, such Information, except for that part, if any, which is known to the receiving Party by way of subsections (vi) through (viii) above, shall be held in confidence by the
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receiving Party using the same degree of care as such Party uses for its own Information of similar importance, but in no event using less than reasonable care. The receiving Party may disclose the furnishing Party’s Information as provided in subsection (c) below. ***.
     (b) Survival. The provisions of this Section 1.21 shall survive the expiration or termination of this Agreement for a period of ***. Each Party agrees and acknowledges that money damages would not be sufficient to remedy any breach of this Section 1.21, and that the aggrieved Party shall be entitled to seek specific performance and injunctive relief as remedies for such breach or any threatened breach of this Section. Such remedies shall not be deemed the exclusive remedies for a breach of this Section 1.21 by a Party but shall be in addition to all remedies available at law or in equity to such Party, including recovery of damages from the breaching Party. For purposes of this Section, the term “Party” shall also include Affiliates of the Party.
     (c) Permitted Disclosures. A Party shall be entitled to disclose the terms and conditions of this Agreement and any Information acquired by it under or pursuant to this Agreement without the prior consent of another Party to the following Persons; provided that, to the extent the disclosure will be made to any third party, such third party must be bound by obligations of confidentiality that are substantially similar to the obligations set forth in this Section 1.21:
     (i) to any Affiliate (in the case of Seller), or to any Authorized User (in the case of Customer) of such Party, and to the investors, directors, officers, employees, financial advisors, attorneys, contractors, agents and representatives of such Party and its Affiliates who have a legitimate need to see such Information;
     (ii) to any outside consultants or advisers engaged by or on behalf of such Party in connection with the construction, financing, operation or transfer of the PCS Systems, and acting in that capacity, provided that such consultants or advisers are not engaged in a business substantially similar to the primary business of the furnishing Party;
     (iii) to its existing or potential lenders, and to any potential assignees, potential purchasers of, or potential investors in, such Party;
     (iv) to the extent required by law or regulation (including, without limitation, by the Securities and Exchange Commission and/or any stock exchange) or pursuant to an order of any court of competent jurisdiction, provided that, in the case of a court order or request from a regulatory agency, the receiving Party promptly shall inform the furnishing Party prior to such disclosure (if possible under the circumstances) to enable the furnishing Party to seek a protective order or other adequate assurance that this Agreement and any data or information (including Information) will be withheld from the public record or, to
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the extent the furnishing Party does not have standing to object to the disclosure, the receiving Party will take all reasonably necessary actions, at the furnishing Party’s written request and expense, to seek such a protective order or other such adequate assurances, or a redaction of highly sensitive Information; or
     (v) to any insurer under a policy of insurance purchased by a Party in connection with, in whole or in part, its obligations under this Agreement.
1.22 NOTICES
Except as otherwise set forth herein, all notices required or permitted to be given under this Agreement shall be in writing and shall be addressed to the addresses set forth below or to such other address as either Party may designate by notice pursuant hereto and shall be: (a) delivered personally; (b) sent by certified mail (return receipt requested); (c) sent by a recognized overnight mail or courier service with delivery receipt required; or (d) sent by confirmed facsimile transfer. Such notices shall be deemed to have been given when received at the addresses set forth below.
             
 
  To Seller:   Lucent Technologies Inc.
2400 Dallas Parkway, Suite 505
Plano, Texas 75093
***
***
   
 
           
 
  Copy To:   Lucent Technologies Inc.
67 Whippany Road, 15C-413
Whippany, New Jersey 07981
***
***
   
 
           
 
  To Customer:   MetroPCS, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Chief Technical Officer
***
   
 
           
 
  Copy To:   MetroPCS, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, Texas 75231
Attn.: Legal Department
***
   
1.23 RIGHT OF ACCESS
     (a) General. Each Party shall provide the other access to its facilities as reasonably required in connection with the performance of the respective obligations under this Agreement. No charge shall be made for such access. Reasonable prior notification will be given when access
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is required. Seller shall coordinate any access with Customer’s designated representative prior to visiting any Site. Customer shall obtain for Seller’s and its Subcontractor’s employees any necessary identification and clearance credentials to enable Seller and its Subcontractors to have access to the Site. Upon receipt of Site rules from Customer, Seller agrees to cause its employees and Subcontractors to comply with all Site rules while on Customer’s Site. The employees and Subcontractors of Seller shall, while on Customer’s premises, comply with all Site rules and guidelines including, but not limited to, Applicable Laws. Neither Party shall require waivers or releases of any personal rights in connection with visits to its premises, and no such releases or waivers shall be pleaded by either Party in any action or proceeding.
     (b) Site Rules. To the extent that Customer does not own a Site, upon receipt of the Site rules from Customer, Seller’s obligations to adhere to Site rules and guidelines shall include, without limitation, those rules and guidelines required by Customer, its Affiliates, a Designated Entity and/or any landlord and/or the property manager having care and control of such Site.
     (c) No Interference. Seller shall install all Products and perform the Services so as to cause no unauthorized interference with, or obstruction of, lands and thoroughfares or rights of way on or near which the installation work is to be performed. Seller shall exercise every reasonable safeguard to avoid damaging existing facilities, and if repairs or new construction are required in order to replace facilities damaged by Seller, such repairs or new construction shall be at Seller’s sole cost and expense, ***. Seller understands that many of the Sites may be co-located with other RF transmission facilities, and Seller shall take all necessary precautions and safety measures to ensure the safety of all of the personnel of Seller and its Subcontractors at such Sites. Customer shall use its reasonable best efforts to ensure that no other third parties employed or engaged by Customer hinder or delay Seller in the performance of its obligations hereunder, including the provision of Services.
1.24 INDEPENDENT CONTRACTOR
All work performed by a Party under this Agreement shall be performed as an independent contractor and not as an agent of the other, and no personnel furnished by the performing Party shall be considered the employees or agents of the other. The performing Party shall be responsible for its employees’ and contractors’ compliance with all Applicable Laws while performing work under this Agreement.
1.25 LIMITATIONS ON REMEDIES
     (a) Cap on Direct Damages. Except for claims arising out of or relating to: ***, in no event shall the aggregate, cumulative liability of a Party and its Affiliates to the other Party and its Affiliates for any and all claims, losses, damages, and expenses arising out of or relating to this Agreement, exceed ***
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***.
     (b) Disclaimer of Non-Direct Damages. EXCEPT FOR CLAIMS ARISING OUT OF OR RELATING TO *** NEITHER PARTY NOR ITS AFFILIATES AND/OR ITS RESPECTIVE EMPLOYEES AND AGENTS, SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL AND/OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT OR LICENSED MATERIALS, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT LIABILITY. THIS SECTION 1.25(b) SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
     (c) Notice of Claims. Each Party shall endeavor to give the other Party prompt notice of any claim. Any action or proceeding by one Party against the other Party must be brought within the appropriate limitations period prescribed by Applicable Law.
1.26 FORCE MAJEURE
     (a) General. Except with respect to Customer’s obligation to make timely payments under this Agreement, neither Party shall be held responsible for any delay or failure of performance to the extent that such delay or failure is caused by a Force Majeure, but only if, and to the extent:
     (i) such circumstance is not within the reasonable control of the Party affected; and
     (ii) such circumstance, despite the exercise of reasonable, diligent efforts and pursuit of reasonable, alternative measures, cannot be prevented, avoided or removed by such Party; and
     (iii) such event materially adversely affects (in cost and/or time) the ability of the affected Party to fulfill its obligations tinder this Agreement.
     (b) Obligations Upon Occurrence of Force Majeure. The Party claiming the benefit of excusable delay hereunder shall: (i) promptly notify the other Party of the circumstances creating the failure or delay and provide a statement of the impact on such Party of the Force Majeure event; and (ii) use all reasonable efforts to avoid or remove the effects of the Force Majeure event. If a Force Majeure event prevents Seller from performing its obligations under this Agreement for a period exceeding thirty (30) days, upon written notice to Seller, Customer shall have the right to cancel without penalty or further obligation to Seller any affected Purchase Orders and/or contract with another supplier for any products, licensed materials and services that Seller is unable to provide or perform pursuant to such Purchase Orders, regardless of any exclusivity provision, if any, that may be contained in this Agreement. If an event of Force Majeure prevents
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Seller from performing its obligations under this Agreement for a period exceeding ***, Customer may, upon prior written notice to Seller, terminate this Agreement.
     (c) Change Orders. Subject to Customer’s rights under Section 1.26(b), which shall prevail over any contrary terms in this subsection (c), upon the occurrence of a Force Majeure event from which the affected Party has used all best efforts to recover, at the written request of the affected Party in accordance with Sections 1.7 or 1.8, as applicable, the other Party shall in good faith negotiate a Change Order, to the extent reasonable and necessary, to address scheduling and other performance issues impacted by such Force Majeure event.
1.27 ASSIGNMENT
     (a) General. Except as provided in this Section, neither Party shall assign this Agreement or any right or interest under this Agreement, nor delegate any Services or other obligation to be performed under this Agreement (each, an “Assignment”) without the other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. At the non-assigning Party’s option, any attempted Assignment in contravention of this Agreement shall be void and ineffective.
     (b) Customer’s Assignments. Upon: (i) Seller’s acceptance of any Assignment by Customer pursuant to this Section 1.27, where such acceptance is required; and (ii) the assignee’s assumption of all of Customer’s duties under this Agreement (including, without limitation, indemnities, warranties and other obligations) as evidenced in a writing in form and substance reasonably satisfactory to Seller; and (iii) the payment in full of all undisputed amounts due and owing by Customer under this Agreement at the time of Assignment, Customer shall be released and discharged, to the extent of the Assignment and full performance prior to assignment of all obligations not assigned to Customer’s assignee, from all further duties and obligations hereunder.
     (c) Seller’s Assignments. Upon: (i) Customer’s acceptance of any Assignment by Seller pursuant to this Section 1.27, where such acceptance is required; and (ii) the assignee’s assumption of all of Seller’s duties (including, without limitation, those duties for which Seller has been paid directly) under this Agreement (including, without limitation, indemnities, warranties and other obligations) as evidenced in a writing in form and substance reasonably satisfactory to Customer; and (iii) the payment in full of all undisputed amounts (including, without limitation, applicable credits) due and owing by Seller under this Agreement at the time of Assignment. Seller shall be released and discharged, to the extent of the Assignment and full performance prior to assignment of all obligations not assigned to Seller’s assignee, from all further duties and obligations hereunder.
     (d) Customer’s Collateral Assignment. Without Seller’s consent, Customer shall have the right to collaterally assign its rights hereunder for security purposes (including, without limitation, all licenses with respect to the Licensed Materials) to any or all lenders providing financing for any part of a PCS System, provided that such assignment does not amend or modify any of Customer’s obligations hereunder or any of Seller’s rights or obligations under this Agreement.
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     (e) Assignment to Affiliates. Notwithstanding the foregoing, each Party shall have the right to assign this Agreement and to assign its rights and delegate its duties under this Agreement, in whole or in part, at any time and without the other Party’s prior written consent, to any present or future Affiliate of the assigning Party, provided such assignee entity has sufficient resources and capitalization in the non-assigning Party’s reasonable opinion to undertake the assigning Party’s obligations contained in this Agreement. The assigning Party under this Section shall give the non-assigning Party prompt written notice of the Assignment. For purposes of this Section, the term “Agreement” includes this Agreement, any subordinate agreement placed under this Agreement and any Purchase Order placed under this Agreement or subordinate agreement.
     (f) Assignment in Connection with Sale of Business. Notwithstanding the foregoing and subject to the conditions of this paragraph, each Party shall have the right to assign this Agreement, including all of its rights and obligations under this Agreement, at any time and without the other Party’s prior written consent, to a successor in interest in connection with that Party’s sale of all, or substantially all, of its assets or stock or in connection with a merger, consolidation or change of control. As conditions to the preceding sentence: (i) the assigning Party under this Section shall give the non-assigning Party prompt written notice in advance of the Assignment; (ii) the assignee shall execute an assumption of the assigning Party’s duties under this Agreement (including, without limitation, indemnities, warranties and other obligations) as evidenced in a writing in form and substance reasonably satisfactory to the non-assigning Party; and (iii) the assignee shall not be engaged in a business substantially similar to the primary business of the non-assigning Party. For purposes of this Section, the term “Agreement” includes this Agreement, any subordinate agreement placed under this Agreement and any Purchase Order placed under this Agreement or subordinate agreement.
     (g) Assignment of Third Party Software. Notwithstanding anything in this Section 1.27 to the contrary, Customer may not assign any rights or interest in any third party software licensed by Seller to Customer under this Agreement to the extent that Seller is not able to license such third party software to Customer with rights of assignment. Seller shall, to the extent possible, license all third party software licensed by Seller to Customer under this Agreement granting Customer rights of assignment. To the extent that Seller is not able to license Customer any third party software minimally granting Customer the rights to assignment set forth in subsections (a) through (f), Seller shall clearly identify any limitations on assignment rights in the applicable Purchase Order or applicable Attachment to this Agreement.
1.28 GENERAL INDEMNITIES
     (a) General. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and such other Party’s Affiliates, and their respective directors, officers, employees, agents, Subcontractors, representatives, successors and assigns (collectively for purposes of this Section 1.28, the “Indemnified Party”), from and against any Liabilities (including reasonable attorney’s fees) incurred by the Indemnified Party because of a suit, claim or demand of a third party or third parties for: ***
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***
     (b) Indemnity Incorrectly Provided. ***
1.29 PUBLICITY
In accordance with Attachment K, each Party shall submit to the other Party a proposed copy of all Advertising wherein the name, trademark or service mark of the other Party or its Affiliates is mentioned, and neither Party shall publish or use such Advertising without the other’s prior written approval, which approval shall be granted in accordance with Attachment K.
1.30 APPLICABLE LAW
The laws of the State of Delaware (without regard to its conflicts of laws principles to the extent they would refer to and/or apply the laws of another jurisdiction) shall govern all matters arising out of or relating to this Agreement, including, without limitation, its interpretation, construction, performance and enforcement, and any and all of the Parties’ rights, remedies, liabilities, powers and duties. Any Party bringing a legal action or proceeding against any other Party arising out of or relating to this Agreement may (but shall not be required) bring the legal action or proceeding in the United States District Court for the District of Delaware or in any court of the State of
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Delaware sitting in the city of Dover. Each Party submits to the nonexclusive jurisdiction of the United States District Court for the District of Delaware and its appellate courts, and any court of the State of Delaware sitting in Dover and its appellate courts, for the purposes of legal actions and proceedings arising out of or relating to this Agreement.
1.31 SURVIVAL OF OBLIGATIONS
The Parties’ rights and obligations which, by their nature, reasonably should be assumed to continue beyond the termination, cancellation, or expiration of this Agreement, including, without limitation, those set forth in Sections 1.1, 1.2(b), 1.10,1.16, 1.19, 1.20, 1.21, 1.25, 1.28,1.30,1.31, 1.32, 1.35, 1.36, 2.6, 2.9, 3.2, 3.3, 3.8, 3.9, 3.10, 4.7, 5.1 and 5.2, shall survive such termination, cancellation, or expiration.
1.32 SEVERABILITY
If any provision in this Agreement shall be held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect, if the essential terms and conditions of this Agreement for both Parties remain valid, legal and enforceable. *** In the event such invalid, illegal or unenforceable provision is considered an essential element of this Agreement, the Parties promptly shall negotiate a replacement provision. If the Parties are unable to agree to a replacement provision within thirty (30) days of the essential element’s being held invalid, illegal or unenforceable, either Party shall have the option to terminate this Agreement upon written notice to the other Party provided that such written notice is sent within thirty (30) days following the date that the Parties are unable to agree to a replacement provision.
1.33 NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of either Party strictly to enforce any such term or condition on one or more occasions, shall be construed as a waiver of the same or of any other term or condition of this Agreement on any other occasion.
1.34 CUSTOMER RESPONSIBILITY
Customer shall, at no charge to Seller, provide Seller with such electrical and environmental conditions, technical information, data, technical support, or assistance as may reasonably be required by Seller to fulfill its obligations under this Agreement, any subordinate agreement, or Purchase Order. If Customer fails to provide any Seller-identified required conditions, information, data, support, or assistance within a reasonable period of time following Seller’s request, Seller shall be discharged from any affected obligations until Customer cures such failure, but only if the effects of such Customer failure could not reasonably have been avoided by Seller through the exercise of reasonable alternatives.
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1.35 DISPUTE RESOLUTION
Any claim, counterclaim, demand, cause of action, dispute, and controversy arising out of or relating to this Agreement or the relationship established by this Agreement, any provision hereof, the alleged breach thereof, or in any way relating to the subject matter of this Agreement, involving the Parties and/or their respective representatives (collectively the “Claims”), even though some or all of such Claims allegedly are extra-contractual in nature, whether such Claims sound in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall be resolved by binding arbitration. The arbitration proceeding shall be held in the City of Dallas, State of Texas, USA, unless otherwise agreed to in writing by the Parties hereto, shall be governed by the Federal Arbitration Act and shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). In deciding the substance of the Parties’ Claims, the arbitrators shall refer to the laws of the State of Delaware. Each Party shall designate an arbitrator, who shall be impartial, within fifteen (15) days of receiving notification of the filing with AAA of an arbitration demand. The two (2) designated arbitrators jointly shall select a third, impartial arbitrator. If either Party fails to designate an arbitrator within the fifteen (15) day period described above, that Party’s arbitrator shall be appointed by the AAA. The Parties agree that: (a) the arbitrators must be knowledgeable in industry standards and practices and the matters giving rise to the dispute; (b) the arbitrators shall not have the power and authority to award treble, exemplary or punitive damages of any type under any circumstances whether or not such damages may be available under state or federal law, or under the Commercial Arbitration Rules of the AAA, the Parties hereby waive their right, if any, to recover such damages; (c) the authority of the arbitrators shall be limited to construing and enforcing the terms and conditions of this Agreement as expressly set forth herein; and (d) the arbitrators shall state the reasons for their award, and the legal and factual conclusions underlying the award of the arbitrators shall be final, and judgment upon the award may be confirmed and entered in any court, state or federal, having jurisdiction.
Nothing contained in this Section or elsewhere in this Agreement shall prevent a Party from seeking injunctive or other equitable relief in a court of competent jurisdiction.
1.36 SECURITY INTEREST
Subject to the further terms of this Section, Customer hereby grants Seller a security interest in the Products and Software sold and/or licensed by Seller to Customer under this Agreement, and all proceeds of them in any form, to secure payment of amounts due from Customer hereunder. The security interest in a specific item of Products or Software automatically shall terminate and shall be deemed released upon full and final payment by Customer of the purchase price or license fee, as applicable, for that specific item of Products or Software. Customer shall provide such additional documentation as is reasonably necessary to establish or perfect this security interest. If Customer forwards to Seller a written notice listing specific Products and Software that have been fully and finally paid and requesting that such Products and Software be released from Seller’s Uniform Commercial Code (UCC”) financing statement filings, within ten (10) calendar days after receipt of such request, Seller shall file an appropriate UCC-3 “Amendment (Collateral Change)” setting forth as “deleted” a description of the Products and Software so listed by Customer that have been fully and finally paid. If Seller fails to comply with the
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foregoing obligations to timely file any such UCC-3 form, Customer shall have the right to take all necessary steps to effectuate an appropriate deletion of those Products and Software from Seller’s UCC financing statement filings (and Seller hereby appoints Customer as its attorney in fact for the limited purpose of executing such UCC-3 forms and any other documents that may be required to effectuate such deletion of collateral in the event that Seller does not comply with its contractual obligations as set forth herein) ***. Customer warrants that its legal name, address of its principal place of business and state of organization are as set forth in the first unnumbered paragraph of this Agreement. Customer shall promptly notify Seller of any change in this information. Seller shall be responsible for all costs associated with perfecting and terminating such security interest.
1.37 FINANCING REQUIREMENTS
Seller acknowledges that the attainment of financing for construction of the PCS Systems may be subject to conditions that are customary and appropriate for the providers of such financing. Therefore, Seller agrees to promptly consider any reasonable amendment to or modification or assignment of this Agreement required by such providers (including, without limitation, any pertinent industrial development authority or other similar governmental agency issuing bonds for financing of the PCS System) which do not modify the scope of Seller’s work or Seller’s rights or obligations hereunder. In the event that any such proposed amendment or modification increases Seller’s risk or costs hereunder, Customer and Seller shall negotiate in good faith to adjust pricing, and to equitably adjust such other provisions of this Agreement, if any, which may be affected thereby, to the extent necessary to reflect such increased risk or costs. In no event shall Seller be required to accept any modification or amendment pursuant to this Section. Customer acknowledges that obtaining financing is its sole responsibility and Customer covenants and agrees that it shall not make or assert, and Seller shall not be liable for, any claim, suit, action or demand for damages or relief of any type arising from or related to Seller’s refusal to agree to any amendment or modification to this Agreement. In addition. Customer acknowledges that its payment obligations hereunder are not contingent or conditional upon financing arrangements.
1.38 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
     Seller hereby covenants, represents and warrants to Customer as follows:
     (a) Due Organization of Seller. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of Delaware and has all requisite corporate power and authority to own and operate its business and properties and to carry on its business as such business is now being conducted and is duly qualified to do business in all jurisdictions in which the transaction of its business makes such qualification necessary.
     (b) Due Authorization of Seller; Binding Obligation. Seller has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement by Seller have been
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duly authorized by all necessary corporate action on the part of Seller; this Agreement has been duly executed and delivered by Seller and is the valid and binding obligation of Seller enforceable in accordance with its terms, except as enforcement thereof may be limited by or with respect to the following: (i) applicable insolvency, moratorium, bankruptcy, fraudulent conveyance and other similar laws of general application relating to or affecting the rights and remedies of creditors; (ii) application of equitable principles (whether enforcement is sought in proceedings in equity or at law); and (iii) provided the remedy of specific enforcement or of injunctive relief is subject to the discretion of the court before which any proceeding therefore may be brought.
     (c) Non-Contravention. The execution, delivery and performance of this Agreement by Seller and the consummation of the transactions contemplated hereby will comply with and will not contravene any Applicable Law or Applicable Permit.
     (d) Third Party Approvals. All authorizations by, approvals or orders by, consents of, notices to, filings with or other acts by or in respect of any governmental entity or any other Person required in connection with the execution, delivery and performance of this Agreement by Seller have been obtained or will be obtained prior to any requirement therefor.
     (e) Eligibility under Applicable Laws and Applicable Permits. Seller covenants and agrees that it will ensure that Seller and its Subcontractors are and remain eligible under all Applicable Laws and Applicable Permits for which it is responsible to perform the Services under this Agreement in the various jurisdictions involved.
     (f) Further Assurances. Seller covenants and agrees that it will execute and deliver all further instruments and documents, and take all further action, including, but not limited to, the filing of notices of completion with the appropriate state, provincial and local lien recording offices, that may be necessary or that Customer may reasonably request in order to enable Seller to complete performance of the Services or to effectuate the purposes or intent of this Agreement.
     (g) Liens and Other Encumbrances.
     (i) Protect Work from Liens. Without limiting Seller’s obligations under Section 1.36, with respect to the Products delivered hereunder, Seller covenants and agrees to protect and keep them free from any and all claims, liens, charges or encumbrances in the nature of mechanics’, laborers’ and/or materialmens’ liens, or otherwise arising out of or in connection with performance by Seller and/or any Subcontractor, and to promptly have any such lien released by bond or otherwise, and make any and all filings and take any and all other actions reasonably requested by Customer in order that Customer may take advantage of the relevant local mechanics’ lien waiver procedures with respect to mechanics’ liens, and Customer will cooperate in helping Seller to fulfill its obligation under this Section to the extent reasonably necessary.
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     (ii) Bonds. If any laborers’, materialmen’s, mechanics’, or other similar lien or claim is filed by any Subcontractor, Seller will cause such lien to be satisfied or otherwise discharged, or will file a bond in form and substance satisfactory to Customer in lieu thereof within ten (10) Business Days following the filing thereof. If any such lien is filed or otherwise imposed, and Seller does not cause such lien to be released and discharged as provided in the preceding sentence, or file a bond in lieu thereof, then, without limiting Customer’s other available remedies, Customer has the right, but not the obligation, to pay all sums necessary to obtain such release and discharge or otherwise cause the lien to be removed or bonded to Customer’s satisfaction and permanently set off such sums from any payment then due or thereafter to become due to Seller under this Agreement.
     (iii) Non-Responsibility Notice. Customer reserves the right to post or place on and/or within the PCS System notices of non-responsibility, or to do any other act required by Applicable Law, to exempt Customer and the PCS System from any liability to third parties by reason of any Services or improvements to be performed or furnished by Seller hereunder; provided that failure by Customer to do so will not release or discharge Seller from any of its obligations hereunder.
     (h) Requisite Knowledge. Seller represents that it has all requisite knowledge, know-how, skill, expertise and experience to perform its obligations in accordance with the terms of this Agreement.
1.39 REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTOMER
     Customer hereby covenants, represents and warrants to Seller as follows:
     (a) Due Organization of Customer. Customer is a corporation duly incorporated, validly existing and in good standing under the laws of Delaware and has all requisite corporate power and authority to own and operate its business and properties and to carry on its business as such business is now being conducted and is duly qualified to do business in all jurisdictions in which the transaction of its business makes such qualification necessary, except to the extent failure to do so would not have a material adverse effect on either Party’s ability to perform its obligations hereunder.
     (b) Due Authorization of Customer; Binding Obligation. Customer has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement by Customer have been duly authorized by all necessary corporate action on the part of Customer; this Agreement has been duly executed and delivered by Customer and is the valid and binding obligation of Customer enforceable in accordance with its terms, except as enforcement thereof may be limited by or with respect to the following: (i) applicable insolvency, moratorium, bankruptcy, fraudulent conveyance and other similar laws of general application relating to or affecting the rights and remedies of creditors; (ii) application of equitable principles (whether enforcement is sought in proceedings in equity or at law); and (iii) provided the remedy of
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specific enforcement or of injunctive relief is subject to the discretion of the court before which any proceeding therefore may be brought.
     (c) Non-Contravention. The execution, delivery and performance of this Agreement by Customer and the consummation of the transactions contemplated hereby will comply with and will not contravene any Applicable Law or Applicable Permit.
     (d) Third Party Approvals. All authorizations by, approvals or orders by, consents of, notices to, filings with or other acts by or in respect of any governmental entity or any other Person required in connection with the execution, delivery and performance of this Agreement by Customer have been obtained or will be obtained prior to any requirement therefor.
     (e) Eligibility under Applicable Laws and Applicable Permits. Customer covenants and agrees that it will ensure that Customer and its subcontractors are and remain eligible under all Applicable Laws and Applicable Permits for which it is responsible to perform any work required to be performed by Customer under this Agreement in the various jurisdictions involved.
     (f) Further Assurances. Customer covenants and agrees that it will execute and deliver all further instruments and documents, and take all further action, including, but not limited to, the filing of notices of completion with the appropriate state, provincial and local lien recording offices, that may be necessary or that Seller may reasonably request in order to enable Seller to complete performance of the Work or to effectuate the purposes or intent of this Agreement.
     (g) Requisite Knowledge. Customer represents that it has all requisite knowledge, know-how, skill, expertise and experience to perform its obligations in accordance with the terms of this Agreement.
1.40 SUBCONTRACTORS
     (a) General. With Customer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, Seller may subcontract any portion of its obligations under this Agreement, but no such subcontracting shall relieve Seller from primary responsibility and liability for the performance of Seller’s covenants and obligations under this Agreement. Notwithstanding anything that may be contained herein to the contrary, regardless of whether Customer consents to Seller’s use of a particular Subcontractor or whether Seller uses a Subcontractor recommended by Customer, use by Seller of a Subcontractor shall not, under any circumstances: (i) give rise to any claim or defense by Seller against Customer if such Subcontractor breaches its subcontract or agreement with Seller; (ii) give rise to any claim by such Subcontractor against Customer; (iii) create any contractual obligation by Customer to the Subcontractor; (iv) give rise to a waiver by Customer of its rights to reject any defects or deficiencies in the work to be performed by Seller hereunder; or (v) in any way release Seller from being solely responsible to Customer for the work to be performed by Seller under this Agreement.
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     (b) Inconsistent Terms. The terms of this Agreement shall in all events be binding upon Seller regardless of and without regard to the existence of any inconsistent terms in any agreement between Seller and any Subcontractor whether or not and without regard to the fact that Customer may have directly and/or indirectly had notice of any such inconsistent terms.
     (c) Removal of Subcontractors. Customer has the right at any time to request removal of a Subcontractor and/or any of a Subcontractor’s personnel from work on the PCS System upon reasonable grounds and reasonable prior notice to Seller. Seller shall remove such Subcontractor and/or Subcontractor’s personnel upon such notice and shall use its best commercially reasonable efforts to replace such removed Subcontractor and/or any of Subcontractor’s personnel without causing any delay on any work on the PCS System; provided, however that to the extent that Seller uses its best commercially reasonable efforts to replace such removed Subcontractor and/or any of Subcontractor’s personnel, Seller shall not be responsible for any delay on any work on the PCS System. Such request shall be in writing and, upon receipt of such request.
     (d) Insurance. Seller shall require its Subcontractors to obtain, maintain and keep in force, during the time they are engaged in providing Products and Services hereunder, insurance coverage of the types and levels customary in the industry (provided that the maintenance of any such Subcontractor insurance shall not relieve Seller of its other obligations pursuant to this Agreement), and Seller shall use its commercially reasonable efforts to have Customer and its Affiliates named as additional insureds under such policies with a right to receive notice of any termination of such policies. Seller shall, upon Customer’s request, furnish Customer with evidence of such insurance in form and substance reasonably satisfactory to Customer.
     (e) Warranties. The warranties of Seller hereunder shall be deemed to apply to all Services performed by any Subcontractor as though Seller had itself performed such Services.
     (f) Payments to Subcontractors. Seller shall make all payments it is contractually required to make to all Subcontractors (except in the case of legitimate disputes between Seller and any such Subcontractor arising out of the subcontract between Seller and such Subcontractor) in accordance with the respective agreements between Seller and its Subcontractors. If Customer provides Seller with notice that any payment owed by Seller to a Subcontractor is past due (except in the case of legitimate disputes between Seller and Subcontractor), Seller shall pay such Subcontractor within five (5) Business Days of receipt of such notice from Customer, failing which Customer may pay the Subcontractor directly and obtain reimbursement from Seller for the payment to the Subcontractor ***.
1.41 INSURANCE
     (a) Coverages. Both Parties shall maintain during the Term of this Agreement the following insurance coverages, as well as any other insurance required by Applicable Law: (i) Workers’ Compensation insurance or qualified self-insurance in amounts and as required by law; (ii) employer’s liability insurance with a limit of at least one hundred thousand ($100,000.00)
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dollars for each occurrence; (iii) Commercial General Liability (CGL) insurance with a limit of at least one million dollars ($1,000,000.00) dollars per occurrence; and (iv) automobile liability insurance with a limit of at least one million ($1,000,000.00) dollars for bodily injury, including death, to any one person. Seller’s CGL insurance will be primary and not contributing with or in excess of coverage that Customer may carry. Seller’s CGL insurance will name Customer as an additional insured. From time to time upon written request, a Party shall furnish to the other Party certificates evidencing the insurance required by this Section. Each Party shall notify the other in writing at least thirty (30) days prior to cancellation of, or any material change in, any policy required hereunder.
     (b) Waivers. The Parties release each other and waive any rights to recover against each other, their Affiliates, agents, employees, officers, directors, or customers, for any loss or damage arising from any cause covered or required to be covered by any property insurance required to be carried or any other property insurance actually carried by such Party, but only to the extent of such coverage. Each Party shall cause their respective insurers to issue waiver of subrogation rights endorsements to all property insurance policies carried in connection with this Agreement.
ARTICLE II
PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS
2.1 GENERAL
The provisions of this Article II are applicable to the purchase of Products from Seller. Where specifically noted, selected provisions of this Article II also shall apply to Licensed Materials and Services.
2.2 PRODUCT AVAILABILITY
Seller shall notify Customer in writing at least *** before Seller discontinues accepting Purchase Orders for a Seller Manufactured Product sold under this Agreement (a “Discontinued Product”); provided, however, that if Seller offers a Seller Manufactured Product for sale under this Agreement that: (a) is equivalent (in Form, Fit, Function and performance capabilities) to the Discontinued Product; (b) is available at a price that is equal to or less than the Discontinued Product; and (c) the full use of such replacement Seller Manufactured Product does not require Customer to purchase or implement items not required by the Discontinued Product (i.e., additional memory or processing capacity), Seller shall provide Customer with reasonable advance written notice that it will discontinue accepting Purchase Orders for such Discontinued Product, but in no event shall such advance written notice be less than ***. Seller agrees that it may only discontinue providing a Product and/or Licensed Materials to Customer if it is discontinuing the sale/license of such Product and/or Licensed Materials to all of its customers. In the event of such a discontinuation, during the Product discontinuation notice period. Customer may place Purchase Orders with Seller for the Discontinued Product in quantities to be determined by Customer. ***, Seller shall fulfill all Customer Purchase
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Orders for such Discontinued Product. Further, Seller agrees to use commercially reasonable efforts to accept and fill all Purchase Orders in excess of such quantities. If Seller discontinues a Product and/or Licensed Materials and does not offer an equivalent (in Form, Fit, Function and performance capabilities) Product and/or Licensed Materials for sale/license, ***.
2.3 DOCUMENTATION
Seller shall furnish to Customer, ***, one CD ROM version or on-line version of Documentation for each Product purchased by Customer hereunder. Such Documentation will be that customarily provided by Seller to its other customers at no additional charge. Such Documentation shall be provided prior to, with, or shortly (no less than ***) after the shipment of the Products from Seller to Customer. ***. Additional copies of the Documentation are available at prices set forth in the Customer Price List.
2.4 PRODUCT COMPLIANCES
     (a) Applicable Laws. Seller represents and warrants to Customer that all Products (excluding Discontinued Products after the applicable discontinuation notice period has expired) furnished hereunder are and shall continue to comply with all Applicable Laws including, without limitation, the requirements of Part 24 of the Federal Communication Commission’s Rules and Regulations pertaining to personal communications services in effect upon delivery of such Products. In addition, Seller represents and warrants to Customer that all Products (excluding Discontinued Products after the applicable discontinuation notice period has expired) furnished hereunder are and shall continue to comply with the requirements of Subpart J of Part 15 of the Federal Communication Commission’s Rule and Regulations in effect upon delivery of the applicable Product, including those sections concerning the labeling of such Product and the suppression of radio frequency and electromagnetic radiation to specified levels. Seller makes no undertaking with respect to harmful interference caused by: (i) installation, repair, modification or change of Products by Persons other than Seller or its Affiliates, or any of their respective employees, Subcontractors, agents or representatives; (ii) Products subjected to misuse, neglect accident or abuse by persons other than Seller or its Affiliates, or their respective employees, Subcontractors, agents or representatives; (iii) Products being used in a manner not in accordance with their operating instructions or in a suitable installation environment or operation of other equipment in the frequency range reserved for Customer within the Licensed Area. In order to ensure that the Products (excluding Discontinued Products after the applicable discontinuation notice period has expired) remain in compliance with all Applicable Laws, Seller timely shall: (iv) modify the Products from time to time; and (v) provide such modifications to Customer.
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     (b) Disclaimers. Seller assumes no responsibility under this Section for items not specified or supplied by Seller. Acceptance and/or certification of items not specified or supplied by Seller shall be the sole responsibility of Customer.
2.5 PRODUCT CHANGES
Prior to shipping a Product, Seller may at any time make changes in a Product furnished pursuant to this Agreement, or modify the drawings and published Specifications relating thereto, or substitute Products of later design to fill a Purchase Order, provided: (a) the changes, modifications, or substitutions under normal and proper use do not impact upon the Form, Fit, Function and/or performance capabilities of an ordered Product; and (b) such substitute Product remains compatible with other Products and Licensed Materials furnished by Seller hereunder to the same extent as the Product(s) for which the change was introduced; and (c) such substitute Product does not require Customer to expend material additional amounts to procure, use and/or maintain such substitute Product(s). ***
2.6 CONTINUING PRODUCT SUPPORT — PARTS AND SERVICES
In addition to Seller’s obligations under the applicable Product warranty, Seller offers repair Services and Repair Parts in accordance with Seller’s repair and Repair Parts practices and terms and conditions specified in Attachment G. Notwithstanding anything that may be contained herein to the contrary, such repair Services and Repair Parts shall be available while Seller is manufacturing or stocking such Products or Repair Parts, and for *** after a Product’s discontinued availability effective date, subject to the pricing provisions in Attachment J. At Customer’s request made no later than *** before the end of the *** period (i.e., *** after the discontinued availability effective date), Seller will make such Services and Repair Parts available for an additional *** (i.e., *** after a Product’s discontinued availability effective date) on prices, terms and conditions mutually agreed in writing no later than the expiration of such *** period. Seller may use new, remanufactured, reconditioned, refurbished, or functionally equivalent Products or Repair Parts in the furnishing of repairs or replacements under this Agreement, provided they do not affect the Form, Fit, Function and/or performance capabilities of the applicable Product. Such Repair Parts shall comply with the Specifications.
     If after the *** period following a Product’s discontinued availability effective date, Seller is unable to provide Repair Part(s) and/or repair Service(s) and a functionally equivalent replacement Product has not been designated, Seller shall so advise Customer by written notice
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given at least *** prior to the end of the *** period to allow Customer to plan appropriately, and if Seller is unable to identify another source of supply for such Repair Part(s) and/or repair Service(s), ***.
2.7 SPECIFICATIONS
Upon request, Seller shall provide to Customer, *** one (1) copy of Seller’s available commercial specifications applicable to Products and Software orderable hereunder. Additional copies are available at the applicable price in the Customer Price List.
2.8 CUSTOMER TECHNICAL SUPPORT
Upon Customer’s request, Seller shall provide Customer Technical Support for the PCS Systems through the Remote Technical Support Program (“RTS Program”) described in Attachment D. The RTS Program provides diagnostic center support, performance measurement and system engineering services at the prices, terms and conditions for such services set forth in Attachments D and J. Special, unusual or customized services may be billable, depending upon the nature of the request. When accessing Customer’s PCS Systems, Seller will follow Customer’s internal rules relating to access and control of access which Customer has adopted to comply with the Sarbanes-Oxley Act and related federal regulations. Seller will provide Customer with a copy of such rules and any and all updates that Customer adopts from time to time.
2.9 PRODUCT WARRANTIES
     (a) Warranties. Seller warrants to Customer that:
     (i) As of the date title to Products passes to Customer, Seller will have the right to sell, transfer, and assign such Products to Customer free and clear of any and all third party liens, claims and encumbrances, and the title conveyed by Seller shall be good and marketable title;
     (ii) All Products, including Seller’s Manufactured Products, will be free from defects in material and workmanship, and will conform to, and operate in accordance with, Seller’s Specification or any other agreed-upon Specification referenced in the Purchase Order for such Product; and
     (iii) With respect to Vendor Items, Seller, to the extent permitted, does hereby assign to Customer the warranties and indemnities given to Seller by its vendor of such Vendor Items. Such assignment will be effective on the date of shipment of such Vendor Items. With respect to Vendor Items recommended by Seller in its Specifications for which the vendor’s warranties and indemnities cannot be assigned to Customer, or if
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assigned, less than *** remain of the vendor’s warranty at the time of assignment, Seller warrants that for *** from the date of shipment or, if installed by Seller, from Acceptance by Customer, such Vendor Items will be free from defects in material and workmanship and shall conform to, and operate in accordance with, their Specifications.
     (b) Warrant Periods. The Warranty Periods listed below are applicable to all Products* furnished pursuant to this Agreement:
         
Class of   New   Repaired or
Product   Product   Replacement Product or Part* *
PCS Switching Center
  ***   ***
and Base Station Hardware
       
 
       
All other Products
  ***   ***
 
*   Refer to Section 3.8 for associated Software warranties.
 
**   The Warranty Period for a Repaired Part or for a replacement Product, or part thereof, furnished in lieu of repair under this warranty is the period listed above or the unexpired term of the original Product Warranty Period, whichever is longer.
Notwithstanding anything in this Agreement to the contrary, if Customer uses any part of any system for In Revenue Service, or to provide training or hands-on experience to Customer’s personnel, the applicable Warranty Period shall commence.
     (c) Correction of Defects and Nonconformities. If, under normal and proper use during the applicable Warranty Period, a defect or nonconformity is identified in a Product furnished by Seller, and Customer promptly notifies Seller in writing of such defect or nonconformity and follows Seller’s reasonable instructions regarding return of the defective or nonconforming Product, Seller shall take the following actions:
     (i) Seller shall use best efforts first to repair or replace such Product, without charge at its facility or, if Seller is unable to repair or replace such Product within a reasonable time, at Customer’s option, Seller shall provide a credit ***. Customer must return the Product to Seller for repair and replacement, except as noted in subsection (ii) below. The initial replacement of a defective non-Accepted (e.g. rejected) or non-conforming Product will be with a new Product that complies with the applicable Specifications.
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     (ii) Where Seller is repairing or replacing a Product which has been installed by Seller and the Product is not easily returnable by Customer, Seller will repair or replace the Product at Customer’s Site at Seller’s cost and expense.
     (d) Performance. In addition to the warranties set forth in subsection (a) above. Seller represents and warrants to Customer that, subject to the qualifications below:
     (i) the Products and Software to be delivered hereunder will, upon completion of installation, operate in accordance with the performance standards set forth in the Specifications, and
     (ii) the Services to be performed hereunder will, upon completion, have been performed in accordance with the standards and requirements set forth in the Specifications;
provided that Customer has satisfied all of its obligations set forth in this Agreement with respect to the Products, Software and Services to the extent they affect such performance.
     (e) Removal/Re-installation of Products. If Seller is repairing or replacing a defective Product. Customer is responsible for removing and reinstalling and, in addition, for on-Site repair or replacement of, cable and wire Products. Customer must make the Product accessible for repair or replacement, and is responsible for restoring the Site.
     (f) Returns. Products returned for repair or replacement will be accepted by Seller only in accordance with its reasonable instructions and procedures for such returns. The transportation expense associated with returning such Product to Seller shall be borne by Seller to the extent it is determined that the Product is defective or non-conforming and in need of repair or replacement. Seller shall pay the cost of transporting of the repaired or replacement Product to the destination designated by Customer within the Territory.
     (g) Ownership of Defective Products and Parts. Defective or nonconfonning Products or parts which are replaced hereunder shall become Seller’s property. Seller may use either new, remanufactured, reconditioned, refurbished, or functionally equivalent Products or parts in the furnishing of repairs or replacements under this Agreement, provided that: (i) such Products or parts comply with the Specifications; and (ii) if a defect or nonconformity is found within *** of In Revenue Service. Seller will replace or repair the defective or nonconforming Product with a new Product or part within ***.
     (h) Non-Defective Products. Unless the Parties agree otherwise in writing, if it is determined that a Product for which warranty Service is claimed is not defective or nonconforming. Customer shall pay Seller’s actual costs of handling, inspecting, testing, and transporting the Products and, if applicable, traveling and related expenses associated with on-Site repairs.
     (i) Exclusions. Seller makes no warranty with respect to defective conditions or nonconformities to the extent they result from the following: (i) Customer’s misuse, neglect,
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accident, abuse or unauthorized modifications; (ii) improper wiring, repairing, splicing, alteration, installation, storage or maintenance (except to the extent such acts are performed by Seller or its Affiliates, or any of their respective employees, Subcontractors, agents or representatives); (iii) use in a manner not in accordance with the applicable Specifications, operating instructions or other Seller instructions; or (iv) failure of Customer to apply previously available Seller modifications and corrections. In addition, Seller makes no warranty with respect to Products which have had their serial numbers or months and year of manufacture removed or altered, or with respect to expendable items, including, without limitation, fuses, light bulbs, motor brushes and the like.
     (j) Disclaimer. THE PRODUCT WARRANTIES SET FORTH ABOVE OR ELSEWHERE IN THIS AGREEMENT OR IN ANY WRITING SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SUBSECTION, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLER’S OBLIGATION TO REPAIR, REPLACE, OR CREDIT AS SET FORTH ABOVE IN THIS SECTION. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER FAILS TO REPAIR, REPLACE, OR ISSUE A CREDIT AS SET FORTH ABOVE WITHIN A REASONABLE PERIOD OF TIME, CUSTOMER THEREAFTER MAY, AT ITS OPTION, DECLARE A SELLER EVENT OF DEFAULT.
2.10 ACCEPTANCE
     (a) General Acceptance. Unless the terms of subsection (b) below apply, for Products and Licensed Materials for which Seller installation is not required, Customer shall have *** from the Delivery Date of each Product and/or Licensed Material to accept or reject, in a written notice to Seller, such Product and/or Licensed Material (e.g., to confirm that such Product and/or Licensed Material was ordered by Customer, is not damaged and that the order is complete per the applicable bill of lading). If Customer does not provide written notice of rejection to Seller within such *** period, the Product and/or Licensed Material will then be deemed accepted by Customer. Unless the terms of subsection (b) below apply, for Products and Licensed Materials for which installation is required, Customer shall have *** from the later of: (i) the Delivery Date of such Product and/or Licensed Material; and (ii) the applicable Installation Completion Date, to accept or reject, in a written notice to Seller, such Product or Licensed Material (e.g., to confirm that such Product or Licensed Material was ordered by Customer, is not damaged, operates properly and complies with Seller’s Specifications). If Customer does not provide written notice of rejection to Seller within such *** period, the Product and/or Licensed Material will then be deemed accepted by Customer. Notwithstanding the foregoing, Customer’s use of any part of the Products or Licensed Materials for any In Revenue Service shall constitute acceptance of such Products or Licensed Materials for all relevant purposes of this Agreement. Acceptance of Products, Licensed Materials and/or Services shall not reduce Seller’s warranty obligations under this Agreement.
     (b) *** Acceptance. Notwithstanding the terms of subsection (a) above, if Customer wants to conduct Acceptance Tests with regard to (i)
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Products and/or Licensed Materials *** and/or (ii) if Customer has agreed in writing with Seller to *** and/or (iii) *** Customer shall submit a written notice to Seller of its intent to conduct such Acceptance Tests in accordance with the mutually agreed acceptance test procedures of the Parties. Commencing on the later of: (i) the Delivery Date of the applicable Product and/or Licensed Material; and (ii) the applicable Installation Completion Date, Customer shall have a period of *** to complete such Acceptance Tests and accept or reject, in a written notice to Seller such Product and/or Licensed Material (e.g., to confirm that such Product and/or Licensed Materials was ordered by Customer, is not damaged, operates properly and complies with Seller’s Specifications). If Customer does not provide written notice of rejection to Seller within *** period, the Product and/or Licensed Material will then be deemed accepted by Customer. If Customer provides notice of rejection within the *** period, Seller will correct the non-compliance and deliver the corrected Product or Licensed Material to Customer for Acceptance Tests as set forth in this Section (i.e., Customer shall again have a period of *** in which to notify Seller in writing if such item is found not to be in compliance with the requirements described in this Section). This Acceptance process shall repeat as often as necessary until the applicable Product and/or Licensed Material is accepted as set forth herein. Notwithstanding the foregoing, Customer’s use of any part of the Products or Licensed Materials for any In Revenue Service shall constitute Acceptance of such Products or Licensed Materials for all relevant purposes of this Agreement. Acceptance of Products, Licensed Materials and/or Services shall not reduce Seller’s warranty obligations under this Agreement.
          (c) Failure to Achieve Acceptance.
          (i) Liquidated Damages. To the extent that any of the Products, Software or Services fail the applicable Acceptance Test conducted under subsection (b), Seller will correct the deficiency and deliver, repair or replace the Products or Software, or re-perform the Service, as the case may be, within thirty (30) days following receipt of Customer’s notice of rejection. The Parties agree that damages for nonperformance of Products, Licensed Materials and Services are difficult to calculate accurately and, therefore, if Seller is unable to correct any such deficiency within such thirty (30)-day period, Customer may elect to receive as liquidated damages, and not as a penalty, an amount equal to ***, until such deficiency has been corrected. The liquidated damages will begin to accrue on the 31st day after Seller’s receipt of Customer’s notice.
          Customer will inform Seller of the imposition of any liquidated damages in writing. All such liquidated damages shall be paid to Customer in the form of credits against future invoices for payments due for Products, Licensed Materials or Services purchased by Customer following issuance of such credits; provided, however, that if Seller does not issue invoices in amounts sufficient for Customer to apply such credits during the Term, then within three (3) months following termination or expiration of this Agreement, Seller shall reimburse Customer in cash in an amount equal to the value of such purchase credits, which credits shall then be canceled. The Parties agree that if Customer elects to receive liquidated damages from Seller, Seller’s
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***.
          (ii) Credit. If Seller is unable to correct, repair, or replace any non-conforming or deficient Product or Software or to re-perform defective Service within four (4) weeks following receipt of Customer’s notice thereof, then Customer may elect, upon notice given to Seller no later than two (2) weeks after the expiration of the four (4) week period described herein, to receive a credit for the non-conforming or defective Product, Software and/or Service. In such event, Customer shall return the non-conforming or defective Product and/or Software that: (A) are integral to Customer’s and/or its Authorized Users’ Use or operation of such Product and/or Software; or (B) interface with or are interfaced with such Product and/or Software and that are rendered substantially ineffective or that require a material expenditure of time or money to use or operate as a result, and Seller shall issue a credit to Customer equal to (i) the amounts paid by Customer for such Product and/or Software and/or for the defective Service, plus sales taxes, transportation charges and installation charges, if installed by Seller, plus (ii) the purchase price paid for all other Products and/or Licensed Materials (including related installation and transportation charges and applicable taxes) that: (A) are integral to Customer’s and/or its Authorized Users’ Use or operation of such Product and/or Software; or (B) interface with or are interfaced with such Product and/or Software and that are rendered substantially ineffective or that require a material expenditure of time or money to use or operate as a result. ***
Notwithstanding the above, Customer shall not be permitted to return Products or Software, or request a credit for Services, which have already passed the applicable Acceptance Test.
          (d) Acceptance of Services. Acceptance provisions for installation Services are set forth in Section 4.2.
ARTICLE III
PROVISIONS APPLICABLE TO THE
LICENSING OF LICENSED MATERIALS
3.1 GENERAL
The provisions of this Article apply to the granting of licenses pursuant to this Agreement by Seller to Customer and/or its Affiliates for Licensed Materials.
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3.2 LICENSE
          (a) Licensed Materials. Upon Delivery of Licensed Materials, but subject to payment of all applicable license fees including, but not limited to, any continuing update fees that Customer has agreed to pay, Seller grants to Customer and its Affiliates a perpetual, fully paid,irrevocable (except as provided in Section 3.9), nontransferable (except as permitted hereunder),and nonexclusive license pursuant to this Agreement for: (i) Customer and its Affiliates and their Authorized Users to Use Licensed Materials in the Territory with either the Designated Processor or temporarily on any comparable replacement, if the Designated Processor becomes inoperative, until the Designated Processor is restored to operational status; and (ii) for Customer and its Affiliates and their Authorized Users to copy the Licensed Materials as required for archival, backup and up to three (3) copies for testing purposes, at no additional charge to Customer or its Affiliates or any of their Authorized Users. Customer and its Affiliates and Authorized Users shall use Licensed Materials only for the business operations of Customer, its Affiliates and any Designated Entity, including providing services to their customers, resellers and agents.
The above license grants Customer and its Affiliates no right to, and Customer, and its Affiliates shall not (and shall not allow their Authorized Users to) sublicense such Licensed Materials, or modify, decompile, or disassemble Software furnished as object code to generate corresponding Source Code.
          (b) Know-How. At Customer’s request and upon payment of any applicable Seller defined fees, Seller shall provide to Customer training on, and a license to, available Know-How regarding a Product or Software Enhancement ***. In connection therewith Seller shall train Customer-identified employees *** related to operation and support and maintenance of the Products. *** For the avoidance of doubt, Know-How is information licensed to Customer and is subject to the other provisions of this Article applicable to Licensed Material.
          (c) Licensed Material Transfer Rights. If Customer elects to transfer or sell Products to a third party (including a Designated Entity) who plans to operate the Products to provide wireless telecommunications service in the Territory, (which Customer shall have the
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right to do) or if Customer elects to transfer Products to an Affiliate for reuse within the Territory (which Customer shall have the right to do), Customer may transfer with such Products its right to Use the Licensed Materials (***) for such Products *** only under the following conditions:
     (i) The right to Use such Licensed Materials may be transferred only together with the Products with which Customer has a right to Use such Licensed Materials, and such right to Use the Licensed Materials shall continue to be limited to Use with such Products;
     (ii) If the license fee for the Licensed Materials is based on usage or capacity, and the transferee will Use the Licensed Materials in a manner that will exceed the usage or capacity for which Customer has paid license fees, then the transferee shall pay a license fee for the additional usage or capacity; and
     (iii) Before any such Licensed Materials are transferred, Customer shall notify Seller of such transfer and the transferee shall have agreed in writing (a copy of which will be provided to Seller) to keep the Licensed Materials in confidence and to corresponding conditions respecting possession and Use of Licensed Materials as are imposed on Customer under this Article III.
Despite the preceding paragraphs, Customer may not transfer the right to Use any third-party Software licensed by Seller to Customer to the extent that Seller’s license from such third party prohibits Seller and Customer from transferring the license to such third-party Software to a third party transferee; ***.
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY
          (a) Ownership. As between Customer (or an Affiliate) and Seller, all Licensed Materials (whether or not part of Firmware) furnished by Seller, and all copies thereof made by Customer, including translations, compilations, and partial copies, are the property of Seller.
          (b) Confidentiality. Except for any part of Licensed Materials which: (i) is or becomes generally known to the public through acts not attributable to Customer or any Affiliate; (ii) is furnished to Customer or an Affiliate by a third party as a matter of right without restriction on disclosure; or (iii) is independently developed by Customer or an Affiliate or a third party without use of or reference to the Licensed Materials, Customer and its Affiliates shall hold the Licensed Materials in confidence, and shall not (and shall not allow their Authorized Users to), without Seller’s prior written consent, disclose, provide, or otherwise make available, in whole or in part, any Licensed Materials to anyone, except to their Authorized Users having a need-to-know. Customer and its Affiliates shall not copy Software embodied in Firmware. Customer and its Affiliates shall not make any copies of any Licensed Materials except as provided in Section 3.2 and/or as necessary in connection with the rights granted hereunder. Customer and its Affiliates shall reproduce and include any Seller copyright and other proprietary notice
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appearing on such Licensed Materials on all copies of the Licensed Materials. Customer and its Affiliates shall also mark all media containing such copies with a warning that the Licensed Materials are subject to restrictions contained in an agreement between Seller and Customer and that such Licensed Materials are the property of Seller.
          (c) Appropriate Actions. Customer and its Affiliates shall take appropriate action, by instruction, agreement, or otherwise, with the persons permitted access to the Licensed Materials so as to enable Customer and its Affiliates to satisfy their obligations under this Agreement (but in no event shall Customer and its Affiliates be required to take actions that are not commercially reasonable).
          (d) Return/Destruction. When the Licensed Materials are no longer needed by Customer and its Affiliates, or if Customer’s and its Affiliates’ license is canceled or terminated as provided in Section 3.9, Customer and/or its Affiliates shall return all copies of such Licensed Materials to Seller or follow written disposition instructions provided by Seller.
          (e) Survival. Customer’s and its Affiliates’ obligations set forth in this Section 3.3 will survive expiration or termination of this Agreement for as long as the applicable Licensed Materials remain confidential.
3.4 CHANGES IN LICENSED MATERIALS
Prior to shipment, Seller may substitute modified Licensed Materials to fill a Purchase Order, provided the modifications, under normal and proper Use: (a) do not adversely change the Use, Function, or performance capabilities that Customer would have enjoyed if it had received the originally ordered Licensed Materials; and (b) are Backwards Compatible in accordance with Section 3.8, to the same extent as that represented by Seller for the originally ordered Licensed Materials. Seller shall provide Customer with advance written notice of such proposed substitution, and if Seller’s substitute Licensed Materials do not satisfy all of the criteria specified above in this Section: (i) Customer shall have the right upon written notice to Seller to terminate all affected Purchase Orders without penalty or liability of any kind or nature; (ii) the originally ordered Licensed Materials shall be treated as a Discontinued Product that does not have an equivalent replacement as provided in Section 2.2; and ***. Such substitution shall not result in any additional charges to Customer with respect to licenses for which Seller has quoted fees to Customer.
3.5 MODIFICATIONS TO SOFTWARE; PRODUCT COMPLIANCES
          (a) Modifications. Customer may request Seller to make changes to Seller’s Software. Upon receipt of a document describing in detail the changes requested by Customer, Seller will respond in writing to Customer within thirty (30) days. If Seller agrees to undertake such
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modifications, the response shall quote a proposed delivery date and a fee for a license to such modified Software.
          (b) Product Compliances.
                    (i) Applicable Laws. Seller represents and warrants to Customer that all Software furnished hereunder is and shall continue to comply with all Applicable Laws including, without limitation, the requirements of Part 24 of the Federal Communication Commission’s Rules and Regulations pertaining to personal communications services in effect upon delivery of such Software. In addition, Seller represents and warrants to Customer that all Software furnished hereunder is and shall continue to comply with the requirements of Subpart J of Part 15 of the Federal Communication Commission’s Rule and Regulations in effect upon delivery of the applicable Software, including those sections concerning the labeling of such Software and the suppression of radio frequency and electromagnetic radiation to specified levels. Seller makes no undertaking with respect to harmful interference caused by: (A) installation, repair, modification or change of Software by Persons other than Seller or its Affiliates, or any of their respective employees, Subcontractors, agents or representatives; (B) Software subjected to misuse, neglect, accident or abuse by persons other than Seller or its Affiliates, or their respective employees, Subcontractors, agents or representatives; (C) Software being used in a manner not in accordance with operating instructions or in a suitable installation environment or operation of other equipment in the frequency range reserved for Customer within the Licensed Area. In order to ensure that the Software remains in compliance with all Applicable Laws, Seller timely shall: (D) modify the Software from time to time; and (E) provide such modifications to Customer.
                    (ii) Disclaimers. Seller assumes no responsibility under this Section for items not specified in writing and/or supplied by Seller. Acceptance and/or certification of items not specified in writing and/or supplied by Seller shall be the sole responsibility of Customer.
3.6     MODIFICATION BY CUSTOMER
Unless: (a) otherwise agreed; or (b) contemplated in the design of the Software to be modified by customers, Customer is not granted any right to modify Software furnished by Seller under this Agreement.
3.7     RELATED DOCUMENTATION
Seller shall furnish to Customer, *** one copy of the Related Documentation for Software furnished by Seller, per every 5ESS Switch / Access Manager purchased by Customer. Additionally, Customer shall be provided, upon request, with *** more CD ROM versions of the Documentation, ***. Such Related Documentation will be that customarily provided by Seller to its Customers at no additional charge. Such Related Documentation shall be provided prior to, with, or shortly (no later than ***)
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after provision of Software by Seller to Customer. Additional copies of the Related Documentation are available at prices set forth in the Customer Price List.
3.8 SOFTWARE WARRANTY
          (a) General. Seller warrants to Customer that:
                    (i) Software, media and Related Documentation developed or supplied by Seller will be free from those defects which materially affect performance in accordance with Seller’s Specifications or other agreed upon specifications referenced in the applicable Purchase Order; and
                    (ii) Seller has the right to grant the Software licenses it grants under this Agreement; and
                    (iii) With respect to Software not developed by Seller, Seller, to the extent permitted, does hereby assign to Customer the warranties and indemnities given to Seller by its supplier of such Software; and
                    (iv) ***
                    (v) Upon Delivery to Customer, the Software will not contain, and Customer will not receive from any Seller data transmission via modem, tape or other Seller-provided medium (including, without limitation, any connection to any Seller web-site or bulletin board), any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming or otherwise cause any Software, system or equipment to become inoperable or incapable of being used in accordance with the Specifications and/or for the ordered capacity (a Disabling Code”), including without limitation, any limitations that are triggered by, as applicable: (A) any Software being used or copied a certain number of times, or after the lapse of a certain period of time; (B) any Software being installed on or moved to a central processing unit or system that has a serial number, model number or other identification different from the central processing unit or system on which the software originally was installed; or (C) the occurrence or lapse of any similar triggering factor or event. ***
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***
          With respect to Software not developed by Seller as described in the foregoing subsection (iii), to the extent Seller is not permitted to assign to Customer the warranties and indemnities given to Seller by its supplier of such Software, at Customer’s request, Seller shall enforce such warranties and indemnities on Customer’s behalf.
          (b) Warranty Periods. The Warranty Periods and this warranty are applicable to Software developed by Seller, the Related Documentation developed by Seller and associated with such Software, and the medium on which such Software is recorded, unless otherwise stated.
     
Software   Warranty Period
PCS Switching Center and Base Station   ***
     
All Other Software   ***
The Warranty Period for media and Related Documentation shall commence on the same date as the Warranty Period for their associated Software. The Warranty Period for PCS Switching Center and Base Station Software (including any prior Software Update issued to Customer in respect thereto) expires upon installation of any subsequent Software Update or Major Release for such Software (or Software Update) provided to Customer through Seller’s BRSS Program described in Attachment D.
          (c) Correction of Defects and Nonconformities. If, under normal and proper Use during the applicable Warranty Period, the Software covered in Section 3.8(a)(i) and/or (iv) fails to perform as warranted, and Customer notifies Seller in writing of such defect and follows Seller’s reasonable instructions, if any, regarding return of defective Software, Seller shall either correct or replace such Software without charge within a reasonable time thereafter. If not corrected or replaced within a reasonable time period, at Customer’s option, Seller shall issue a credit to Customer equal to the amount paid by Customer for the original license fee for the defective Software, plus related transportation charges and applicable taxes and installation fees if installed by Seller.
          (d) Returns. Software returned for correction or replacement will be accepted by Seller only in accordance with its reasonable instructions and procedures for such returns. The transportation expense associated with returning such Software to Seller shall be borne by Seller to the extent it is determined that the Product is defective or non-conforming and in need of repair or replacement. Seller shall pay the costs of transporting of the corrected or replacement Software to the destination designated by Customer within the Territory.
          (e) Non-Defective Software. Unless the Parties agree otherwise in writing, if it is determined that Software for which warranty Service is claimed is not defective or nonconforming.
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Customer shall pay Seller’s actual costs of handling, inspecting, testing and transporting the Software and, if applicable, traveling and related expenses associated with on-Site repairs.
          (f) Exclusions. Seller makes no warranty with respect to defective conditions or nonconformities to the extent they result from the following: (i) modifications not made or authorized by Seller’s and/or its Affiliates’ employees, agents, Subcontractors and/or representatives; (ii) misuse, neglect, or accident (to the extent not caused by Seller’ and/or its Affiliates’ employees, agents, Subcontractors and/or representatives); (iii) installation, use or maintenance in a manner not in accordance with Seller’s Specifications, operating instructions, or license-to-use; (iv) Customer’s failure to apply Seller modifications and corrections made available to Customer; or (v) Software not provided, developed or recommended in writing by Seller. In addition, Seller makes no warranty with respect to defects related to Customer’s data base errors. Moreover, no warranty is made that Software will run uninterrupted or error free.
          (g) Disclaimer. THE SOFTWARE WARRANTIES SET FORTH ABOVE OR ELSEWHERE IN THIS AGREEMENT OR IN ANY WRITING SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SUBSECTION, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLER’S OBLIGATION TO CORRECT, REPLACE, OR CREDIT AS SET FORTH ABOVE IN THIS SECTION AND IN SECTION 2.9. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER FAILS TO REPAIR, REPLACE OR CREDIT AS SET FORTH ABOVE WITHIN A REASONABLE PERIOD OF TIME, CUSTOMER THEREAFTER MAY, AT ITS OPTION, DECLARE A SELLER EVENT OF DEFAULT.
3.9    CANCELLATION OF LICENSE
If Customer fails to comply with any of the material terms and conditions of Sections 3.2(a), 3.3 and/or 3.6 and Customer fails to cure, or if incurable fails to make substantial progress toward curing, such non-compliance, subject to Customer’s transition rights under Section 1.19(f), within *** after Customer’s receipt from Seller of written notice requiring it to do so, which notice must specify in reasonable detail the nature of the non-compliance, Seller, upon written notice to Customer, may cancel any affected license for Licensed Materials.
          3.10 TAXES APPLICABLE TO SOFTWARE
Notwithstanding anything contained in Section 1.16 to the contrary, Seller shall not bill, collect, or remit any state or local sales or use tax with respect to the license of Software under this Agreement, or with respect to the performance of Services related to such software, which Customer represents to Seller is not properly due under Customer’s interpretation of the law of the taxing jurisdiction, if: (a) Customer submits to Seller a written explanation of the authorities upon which Customer bases its position that the license or performance of Services is not subject to sales or use tax; and (b) Seller agrees that there is authority for Customer’s position, provided, however, that Customer shall hold Seller harmless for all costs and expenses (including, but not limited to,
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taxes and related charges payable under Section 1.16, and reasonable attorney’s fees) arising from the assertion by a taxing authority that the license of, or the performance of Services with respect to, the Software was subject to state or local sales or use tax.
ARTICLE IV
PROVISIONS APPLICABLE TO ENGINEERING,
INSTALLATION AND OTHER SERVICES
4.1 GENERAL
The provisions of this Article IV shall be applicable to the furnishing by Seller of Services under this Agreement. Unless Customer has elected to perform self-installation services in accordance with Attachment I. Seller shall perform engineering, installation, and integration Services associated with the Products and Software acquired by Customer under this Agreement.
4.2 ACCEPTANCE OF INSTALLATION
At reasonable times during the course of Seller’s installation, Customer, at its request may, or upon Seller’s request, shall, inspect completed portions of such installation.
When Seller has finished installing a Product, Licensed Material or PCS System in accordance with the relevant provisions of Attachment E, Attachment J, Attachment L, Attachment M or other written statement of work agreed by the Parties (“Installation Completion”), Seller shall notify Customer of Installation Completion. Upon receipt of Seller’s notice, and provided Customer has notified Seller at the commencement of installation of Customer’s intent to conduct Acceptance Tests, Customer may test and review the installed Product, Licensed Material or PCS System and all related Services to determine if they have been performed, in Customer’s reasonable satisfaction, in accordance with the relevant Attachment and/or statement of work. Within ***  of receiving Seller’s notice of Installation Completion, Customer may provide Seller with a list of Punch List Items. Seller will promptly correct or complete the Punch List Items, as the case may be, and submit notice to Customer that the Punch List Items have been completed. Within ***  of Customer’s receipt of such notice, Customer may test and review the installation and Punch List Items to determine if they have been performed, in Customer’s reasonable satisfaction, in accordance with the relevant Attachment and/or statement of work. The process in this Section shall repeat until Customer: (i) has confirmed in writing that Installation Completion has occurred, in Customer’s reasonable judgment and that no Punch List Items remain uncorrected; or (ii) ***  elapse after Customer’s receipt of Seller’s notice and Customer does not submit Punch List Items or does not indicate in writing that any Punch List Items are uncorrected or otherwise indicate in writing that Installation Completion has not occurred. If Customer had notified Seller of Customer’s intent to conduct Acceptance tests at commencement of installation, the date that the first event described in subsection (i) or (ii) occurs shall be the “Installation Completion Date”. If Customer did not notify Seller of Customer’s intent to conduct Acceptance tests at commencement of installation, the date that Seller submits its notice of Installation Completion will be the Installation Completion Date. Acceptance of the installation and related Services shall occur upon the Installation Completion Date. Acceptance of Products,
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Licensed Materials and/or Services shall not reduce Seller’s warranty obligations under this Agreement.
4.3 SELLER’S PERSONNEL
          (a) General. Seller shall provide sufficient, qualified personnel to perform Seller’s obligations hereunder.
          (b) Removal of Seller Personnel by Customer.If Customer has a concern regarding Seller’s personnel, Seller shall meet with Customer to discuss Customer’s concerns, and negotiate in good faith a mutually agreeable solution within a reasonable period of time, which may include removal or reassignment of Seller’s personnel.
          (c) Transition.If Seller replaces an individual as provided in subsection (b) above, the replacement personnel shall work with the replaced personnel during a mutually agreed transition period, the duration of which shall be determined based on the duties and responsibilities of the person to be replaced, and all costs and expenses associated with educating and training the replacement personnel shall be borne by Seller. In addition, provided the replaced personnel remain employed by Seller, such individual shall continue to be available by telephone to answer any project-related questions.
          (e) Solicitation of Personnel. During any period that any individual assigned by a Party to perform obligations in connection with this Agreement is performing such obligations and for a period of twelve (12) months thereafter, without the prior written consent of the Party that has employed such individual, the other Party shall not, directly or indirectly, solicit for employment, or contract for the services of, such individual; provided, however, that the foregoing will not prohibit a general, non-targeted solicitation for employment, such as newspaper advertisements.
4.4   CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMER’S SITE
ITEMS PROVIDED BY CUSTOMER:
As set forth in this Agreement, Customer will be responsible for furnishing the following items (as required by the conditions of the particular installation) or other on-Site Services, at no charge to Seller and these items will not be included in Seller’s price for the Services. Seller’s representative shall have the right to inspect the Site prior to the Start Date. Should Customer fail to furnish any of such items, or perform other essential obligations for which it is responsible under this Agreement after Seller provides Customer ten (10) days written notice, Seller may initiate a Change Order and seek an equitable adjustment to the installation delivery schedule due to any delays caused thereby pursuant to Section 1.8.
Regulatory Commission Approvals: Prior to Service start date, obtain all such Applicable Permits including such approvals, licenses, permits, tariffs and/or other authorities from the Federal
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Communications Commission and state and local public utilities commissions as may be necessary
for construction and operation of a PCS System.
Easements, Permits and Rights-of-Way: Prior to the Start Date, provide all rights-of-way, easements, licenses to come upon land to perform the Services, permits and authority for installation of Products and other items; permits for opening sidewalks, streets, alleys, and highways; and construction and building permits.
General Building Conditions: When Customer provides or arranges for a third party to provide PCS, Customer shall prior to the Start Date:
a. Ensure that the PCS Site structures are in a structurally safe and sound condition to properly house the materials to be installed, in accordance with weight, strength, and structural requirements specified by Seller in writing. Customer shall provide Seller a certificate of a duly licensed architect or engineer prior to Seller having access to the PCS Site stating that the Site(s) meets such requirements;
b. Take such action as may be necessary to insure that the premises will be dry and free from dust (such that it doesn’t impair the performance of the equipment) and Hazardous Materials, including but not limited to asbestos, and in such condition as not to be injurious to Seller’s or its Subcontractors’ employees or to the materials to be installed. Prior to commencement of the Services and during the performance of the Services, Customer shall, if requested by Seller, provide Seller with sufficient data to assist Seller’s supplier in evaluating the environmental conditions at the work Site (including the presence of Hazardous Materials). Customer is responsible for removing and disposing of the Hazardous Materials, including but not limited to asbestos, prior to commencement of the Services.
Sensitive Equipment: Prior to commencement of the Service, notify Seller of the presence of any sensitive equipment at the work Site (e.g., equipment sensitive to static electricity or light), otherwise Seller will not be responsible for damage to the extent such damage could have been prevented by such notice.
Repairs to Buildings: Prior to the Start Date, make such alterations and repairs as are necessary for proper installation of items to be installed.
Openings in Buildings: Prior to the Start Date, furnish suitable openings in buildings to allow the items to be installed to be placed in position, and provide necessary openings and ducts for cable and conductors in floors and walls as designated on engineering drawings furnished by Seller.
Surveys: Prior to Service start date furnish surveys (describing the physical characteristics, legal limitations and utility locations for the work Site) and a legal description of the Site.
Electrical Current, Heat, Light and Water: Provide electric current for charging storage batteries and for any other necessary purposes with suitable outlets where work is to be performed; provide temperature control and general illumination (regular and emergency) in rooms in which work is to be performed or Products or other items stored, equivalent to that ordinarily furnished for similar
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purposes in a working office; provide exit lights; provide water and other necessary utilities for the proper execution of the Services as feasible.
PCS System Utility Requirements: Negotiate with the power and telephone companies or comparable service providers for installation of the power and telephone facilities necessary for proper operation of the Products and/or other items being installed. The type and quantity of such facilities shall be subject to Seller’s reasonable approval. Such approval shall be in accordance with the Specifications. Customer shall have the telephone company or comparable service providers provide, place, install, extend and terminate telephone facilities into the PCS System; line up and test the telephone company or comparable service provider’s facilities outside and inside the PCS System; and provide to Seller copies of the test results prior to Seller’s commencing integration testing of the PCS System.
Material Furnished by Customer: New or used material furnished by Customer shall be in such condition that it requires no repair and no adjustment or test effort in excess of that normal for new equipment. Customer assumes all responsibility for the proper functioning of such material. Customer shall also provide the necessary information for Seller to properly install such material.
Furniture: provide and install all furniture necessary for operator management of the 5ESS Switch.
Floor Space and Storage Facilities: Provide, during progress of the Services, suitable and easily accessible floor space and storage facilities (a) to permit storing major items of Products and other material closely adjacent to where they will be used, (b) for administrative and luncheon purposes, (c) for Seller’s and its Subcontractors’ employees’ personal effects, and (d) for tools and property of Seller and its Subcontractors. Where the Service is to be performed outside of a building or in a building under construction, Customer shall, in addition to the above requirements, as appropriate, permit or secure permission for Seller and its Subcontractors to maintain at the work Site, storage facilities (such as trailers) for Products, materials and other items and for tools and equipment needed to complete the Service.
Watch Service: For PCS, provide normal security (for cell sites, commercial alarms) necessary to prevent admission of unauthorized persons to building and other areas where installation Service is performed and to prevent unauthorized removal of the Products and other items. Seller will inform Customer as to which storage facilities at the work Site Seller will keep locked; such storage facilities will remain closed to Customer’s surveillance.
Use of Available Testing Equipment: Customer shall make available to Seller: (1) the maintenance test facilities which are imbedded in equipment to which the Product or other item being installed will be connected or added, and (2) meters, test sets, and other portable apparatus that is unique to the item being installed. Seller’s use of such test equipment shall not interfere with Customer’s normal equipment maintenance functions.
Hazardous Materials Cleanup: At the conclusion of the Service, Customer shall be responsible for the cleanup, removal, and proper disposal of all Hazardous Materials present at Customer’s premises, except for those Hazardous Materials brought onto the premises by Seller, subject to “Items To Be Furnished By Seller”, below.
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Access to Existing Facilities: Customer shall permit Seller reasonable use of such portions of the existing plant or equipment as are necessary for the proper completion of such tests as require coordination with existing facilities. Such use shall not interfere with Customer’s normal maintenance of equipment.
Grounds: Customer shall provide access to suitable and isolated building ground as required for Seller’s standard grounding of equipment. Where installation is outside or in a building under construction, Customer shall also furnish lightning protection ground.
Requirements for Customer Designed Circuits: Customer shall furnish information covering the proper test and readjust requirements for apparatus and requirements for circuit performance associated with circuits designed by Customer or standard circuits modified by Customer’s drawings.
Through Tests and Trunk Tests: Customer shall make required through tests and trunk tests to other offices after Seller provides its notice of completion or notice of advanced turnover.
ITEMS TO BE FURNISHED BY SELLER:
The following items will be furnished by Seller (if required by the conditions of the particular Service) and the price thereof is included in Seller’s price for Service:
Hazardous Materials Cleanup: At the conclusion of the Services, Seller shall be responsible for the cleanup, removal, and proper disposal of all Hazardous Materials brought onto the premises by Seller and not contemplated to remain on the premises after such completion of Service.
Protection of Equipment and Building: Seller shall provide protection for Customer’s equipment and buildings during the performance of the Service and in accordance with Seller’s standard practices.
Method of Procedure: Seller shall prepare a detailed Method of Procedure (“MOP”) before starting work on live equipment. Customer shall review the MOP and any requested changes shall be negotiated. Customer shall give Seller written acceptance of the MOP prior to start of the work.
The following items will be furnished by Seller if requested by Customer, but Customer will be billed and shall pay for them in addition to Seller’s standard or firm quoted price for the Services:
Protection of Buildings and Equipment: Seller may provide protection of buildings and equipment in accordance with special practices of Customer differing from reasonable and prudent standards of care.
Maintenance: Seller shall maintain Products, Licensed Materials and other items from completion of installation until date of Acceptance.
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Locally Purchased Items: Seller shall purchase items indicated by Seller’s Specifications as
needing to be purchased locally.
Readjusting Apparatus: Seller may provide readjustment (in excess of that normally required on new apparatus) of apparatus associated with relocated or rewired circuits.
Cross-Connections (Other than to Outside Cable Terminations): Seller may run or rerun permanent cross-connections in accordance with revised cross-connection lists furnished by Customer.
Handling, Packing, Transportation and Disposition of Removed and Surplus Customer Equipment: Seller may pack, transport, and dispose of surplus and removed Customer equipment as agreed by the Parties.
Premium Time Allowances and Night Shift Bonuses: Seller may have its Services personnel work premium time and night shifts to the extent that Seller may deem such to be necessary to effect the required coordination of installing and testing operations or other Services because of Customer’s requirements.
Emergency Lighting System: Seller may provide new emergency lighting system (other than the original ceiling mounted stumble lighting) to satisfy illumination and safety needs of Products of certain heights.
4.5 WORK DONE BY OTHERS
If Customer or its other vendors or contractors fail to timely complete the Site readiness, or if Customer’s or its other vendors’ or contractors’ work interferes with Seller’s performance, Seller promptly shall so notify Customer and, if appropriate under the circumstances, Seller may initiate a Change Order in order to extend on a day-for-day basis the scheduled completion date of Seller’s Services under the applicable Purchase Order as reasonably necessary to compensate for such delay or interference.
4.6 SELLER’S RIGHT TO RE-DEPLOY RESOURCES
If, in connection with its obligation to perform Services under this Agreement, Seller has allocated engineering, installation and/or other resources to such performance and Customer or its contractor fails to perform or delays performance of Customer’s obligations that are pre- conditions to the completion of Seller’s performance, or Customer or its contractor interferes with Seller’s performance, the scheduled completion date of Seller’s performance shall be extended as necessary to compensate for such delay, failure or interference. Customer shall promptly notify Seller whenever it anticipates or experiences such a delay, failure or interference. If such delay, failure, or interference continues for *** or more, Seller shall have the right to de-mobilize and re-deploy to other work any or all of its resources idled by such a delay, failure or interference. If Seller does de-mobilize and re-deploy its resources, Seller will re-mobilize its resources to continue with its performance under this Agreement within a commercially reasonable time after Customer or its contractor completes Customer’s obligations and Customer has notified Seller of such completion.
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4.7 SERVICES WARRANTIES
          (a) General. Seller warrants to Customer that all Services will be performed in a professional, careful and workmanlike manner and in accordance with Seller’s Specifications, those specifications referenced in the Purchase Order and/or in accordance with accepted practices in the telecommunications industry and the community in which such Services are performed, using material free from defects except where such material is provided by Customer. The Warranty Period for a particular Service will be set forth in the applicable statement of work. If the statement of work does not specify a Warranty Period, then the Warranty Period for the Service described there will be *** from the date on which the Service has been completed and accepted by Customer. If Services are not performed in accordance with the provisions of this Section, and if Customer so notifies Seller within the applicable Warranty Period, Seller shall correct the defective or nonconforming Service without charge within a reasonable period of time thereafter. If not corrected within such reasonable period of time after Customer’s notice, Seller shall issue a credit to Customer equal to the amount paid by Customer for the defective or non- conforming Services.
          (b) Disclaimer. THE SERVICES WARRANTIES SET FORTH ABOVE OR ELSEWHERE IN THIS AGREEMENT OR IN ANY WRITING SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SUBSECTION, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SUCH WARRANTIES SHALL BE SELLER’S OBLIGATION TO MAKE CORRECTIONS OR GIVE A CREDIT AS SET FORTH ABOVE IN THIS SECTION. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF SELLER FAILS TO CORRECT OR CREDIT AS SET FORTH ABOVE WITHIN A REASONABLE TIME PERIOD, CUSTOMER MAY, AT ITS OPTION, DECLARE A SELLER EVENT OF DEFAULT.
          (c) Additional Warranties. The Parties may negotiate additional Services-related warranties on a case-by-case basis.
ARTICLE V
ENTIRE AGREEMENT AND EXECUTION
5.1 ENTIRE AGREEMENT
Attachments A through M are attached to this Agreement and incorporated by this reference. The terms and conditions contained in this Agreement, any subordinate agreements, and Purchase Orders accepted pursuant to this Agreement or any subordinate agreement supersede all prior oral or written understandings between the Parties with respect to the subject matter thereof and constitute the entire agreement of the Parties with respect to such subject matter. Such terms and
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conditions shall not be modified or amended except by a writing signed by authorized representatives of both Parties.
5.2 TERMINATION OF EXISTING AGREEMENT
Except as expressly provided in this Section and in Attachments A and C, the 2002 Contract shall terminate as of the Effective Date and have no further force or effect. From and after the Effective Date, all products and licensed materials acquired by Customer pursuant to the 2002 Contract shall be treated as Products and Licensed Materials acquired under this Agreement and shall be subject in all respects to the terms and conditions of this Agreement; provided, however, that: (a) any warranty periods set forth in the 2002 Contract shall be applicable to the products and licensed materials purchased or licensed thereunder; (b) the prices, discounts and credits set forth in this Agreement shall not retroactively apply to the products, licensed materials and services purchased, licensed, delivered and performed under the Existing Agreement prior to the Effective Date;, ***; and (d) all amounts due to Seller under the 2002 Contract (whether or not invoiced and whether or not disputed) will continue to be owed under this Agreement. Purchase Orders for services placed by Customer under the 2002 Contract will be deemed to have been placed under this Agreement to the extent the services will be performed on or after the Effective Date, and the terms and conditions of this Agreement shall govern the rights, duties and obligations of the Parties with respect to such services performed on or after the Effective Date, and shall replace and supersede the terms and conditions of the 2002 Contract with respect thereto. The terms and conditions of the 2002 Contract will continue to govern the rights, duties and obligations of the Parties to the extent that services were performed under such Purchase Orders prior to the Effective Date of this Agreement. All Information disclosed by the Parties under the Existing Agreement shall remain subject in all respects to the terms and conditions thereof.
(signature page follows)
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          IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
                     
METROPCS WIRELESS, INC.       LUCENT TECHNOLOGIES INC.    
 
                   
By:
  /s/ Roger D. Linguist       By:   /s/ Steven R. Marino    
Name:
  Roger D. Linguist       Name:   Steven R. Marino    
Title:
  Pres. & CEO       Title:   CTVP    
Date:
  June 6, 2005       Date:   June 6, 2005    
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DRAFT — Subject to legal review and approval by the Parties
Attachment A
*** PRICING
1. GENERAL
***
With respect to Products, Licensed Materials and Services not specifically identified in this Attachment, the Parties agree to negotiate prices for such Products, Licensed Materials and Services in good faith and agree in writing on such prices. Notwithstanding, the following are not included in the Attachment A pricing:
  §   Taxes, domestic transportation, hauling, hoisting, and warehousing;
 
  §   Engineering site visits (if required);
 
  §   Extraordinary installation items — helicopters, cranes, etc.;
 
  §   Power/battery plant, additions, growth and or replacements;
 
  §   Transmission/networking equipment, additions, growth and or replacement;
 
  §   Antennas/tower, additions, growth modifications;
 
  §   Building modifications/construction;
 
  §   Optional hardware items associated with select Lucent Software (e.g. OTA, SMS,AutoPace, billing platforms, etc.);
 
  §   All charges associated with non-Standard Intervals;
 
  §   Any other items not specifically quoted in this Attachment.
Unless Attachment C applies, pricing for Products and Licensed Materials not listed in Attachment A will (a.) not exceed pricing for Products and Licensed Materials listed in Attachment A (taking into consideration all applicable discounts and incentives) that are substantially similar in Fit, Form, Function, and capacity; and (b.) ***.
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DRAFT — Subject to legal review and approval by the Parties
2. EXISTING MARKET AND NEW MARKET PRICING
EXISTING MARKETS
***
NEW MARKETS
***
New Market Pricing
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

2


 

DRAFT — Subject to legal review and approval by the Parties
***
3. ***
 
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

3


 

DRAFT — Subject to legal review and approval by the Parties
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

4


 

DRAFT — Subject to legal review and approval by the Parties
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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DRAFT — Subject to legal review and approval by the Parties
4.   PRODUCT CATEGORIES
  A.   NEW MARKET PRICING
  i.   Base Station Pricing
 
  ii.   Flexent Mobility Manager (FMM) Pricing
 
  iii.   Access Manager (ECP OMP-FX) Pricing
 
  iv.   Messaging Pricing
  B.   EXISTING MARKET PRICING
  i.   Base Station Pricing
 
  ii.   5ESS / Flexent Packet Switch (FPS) Pricing
 
  iii.   Flexent Mobility Manager (FMM) Pricing
 
  iv.   Access Manager (ECP / OMP-FX) Pricing
 
  v.   FMS-Based EVDO Radio Network Controller (RNC) Pricing
 
  vi.   FBP — EVDO Radio Network Controller (RNC) Pricing
 
  vii.   Gateway and Lucent SoftSwitch Pricing (viib. — Lucent Network Controller and Lucent Network Gateway Pricing)
 
  viii.   Optional Software & BRSS (Base Release System Software) Pricing
 
  ix.   PDSN Data Equipment Pricing
 
  x.   Juniper Equipment Pricing
 
  xi.   Riverstone Equipment Pricing
 
  xii.   Dorado Pricing
 
  xiii.   ATM Soft Handoff (SHO) and Integrated Network Solutions (INS) Pricing
 
  xiv.   Wireless Intelligent Network (WIN) Pricing
 
  xv.   Messaging Pricing
 
  xvi.   NOS Pricing
 
  xvii.   Training Pricing
 
  xviii.   Documentation Pricing
 
  xix.   Services Pricing
Appendix 1 Dorado Pricing
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DRAFT — Subject to legal review and approval by the Parties
4.A NEW MARKET PRICING
For New Markets, the following pricing will be honored for the Initial Term per the provisions listed herein as well as in Sections 1, 2 and 3 above. For any Product or Software not specifically denoted in Section 4.A New Market Pricing below, the Existing Market pricing as defined in Section 4.B will apply.
i. Base Station Pricing:
Discount Table
                     
Material   Standard   Spares   Net Effective
Modcells
    ***     ***   ***
Channel Elements
    ***   ***   ***
Power / Batteries
    ***       ***     ***
***    
***
         
***
    ***  
***
    ***  
***
    ***  
***
    ***  
         
New Market Modcell 4.0b Primary 1st Carrier / 3 Sector (6 sector capable) w/   Mod 4.0b  
Duplex Filters:   PC  
***
    ***  
***
    ***  
 
     
***
    ***  
***
    ***  
 
     
Total Model Price
    ***  
                                 
New Market 2nd Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                    ***          
 
                       
Total Model Price
  Not offered   Not offered     ***     Not offered
                                 
New Market 3rd Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                    ***          
 
                       
Total Model Price
  Not offered   Not offered     ***     Not offered
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DRAFT — Subject to legal review and approval by the Parties
NEW MARKETS PRICING
                                 
New Market 4th Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                  ***          
***                   ***          
***                   ***        
***                   ***        
 
                       
Total Model Price
  Not offered   Not offered   ***     Not offered
                         
New Market 5th Carrier Growth on 4.0b PC:   Mod 2.0     Mod 3.0     Mod 4.0b  
***                   ***  
***                   ***  
***                   ***
***                   ***  
 
                 
Total Model Price
  Not offered   Not offered   ***  
                         
New Market 6th Carrier Growth on 4.0b PC:   Mod 2.0     Mod 3.0     Mod 4.0b  
***                   ***  
***                   ***  
***                   ***
***                   ***
                 
Total Model Price
  Not offered   Not offered   ***  
New Market 7th - 11th Carrier Growth Kits for Modcell 4.0b will be Priced at ***
         
New Market 7th Carrier Growth Modcell 4.0 Growth Cabinet for 4.0   Mod 4.0  
Primary Cabinet:   GF-1  
***   ***  
***   ***  
***   ***  
***   ***  
***   ***
 
     
Sub-Total
  ***  
***
  ***  
 
     
Total Model Price
  ***  
                         
New Market 8th Carrier Growth on 4.0 GF-1   with     with     with  
with a 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***                   ***  
***                   ***  
***                   ***
***                   ***
 
                 
Total Model Price
  Not offered   Not offered   ***  
                         
New Market 9th Carrier Growth on 4.0 GF-1 with a 4.0   with     with     with  
PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
                    ***  
***
                    ***  
***
                    ***  
***
                    ***  
 
                 
Total Model Price
  Not offered   Not offered     ***  
New Market 10th and llth Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed above.
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DRAFT — Subject to legal review and approval by the Parties
NEW MARKETS PRICING
                                 
New Market 2nd V4 BTS w/ 2 3G1X Cxr and 1   Mod 2.0 &                       Redeployed  
EVDO Cxr (B2B) Note :   Mod 3.0     C4.0     Mod 4.0     Price  
***
                    ***       ***  
***
                    ***       ***  
***
                    ***       ***  
 
                       
Total Model Price
  Not offered   Not offered     ***       ***  
Note: ***
ii. Flexent Mobility Manager (FMM) Pricing:
     Discount Table
                         
Material   Standard   Spares   Net Effective
Initial Launch New Market FMM HW
    ***       ***       ***  
Initial Launch New Market FMM SW
    ***       ***       ***  
Power
    ***       ***       ***  
***
     
iii. Access Manager (ECP/ OMP-FX) Pricing:
     Discount Table
                         
Material   Standard   Spares   Net Effective
Initial Launch New Market Axmgr
    ***       ***       ***  
Power
                ***  
iv. Messaging Pricing:
Please refer to Attachment L for Messaging pricing.
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DRAFT — Subject to legal review and approval by the Parties
4.B EXISTING MARKET PRICING
i. Base Station Pricing
Discount Table
                     
Material   Standard   Spares   Net Effective
Modcells
    ***       ***     ***
Channel Elements
    ***   ***   ***
Power / Batteries
    ***       ***     ***
  ***
***
         
***
  ***    
***
  ***    
***
  ***    
***
  ***    
Modcell 3.0 / 4.0 / 4.0b Primary & Modcell 2.0 / 3.0 / 4.0 / 4.0b Growth Kit Pricing:
***    
 
***    
 
***    
 
***    
 
***    
 
***    
         
Modcell 4.0 / 4.0b Primary 1st Carrier / 3 Sector w/ Duplex Filters:   Mod4.0/4.0bPC  
***
  ***    
***
  ***    
 
     
Sub-Total
  ***    
***
  ***    
 
     
Total Model Price
  ***    
         
Modcell 3.0 Primary 1st Carrier / 3 Sector w/      
Duplex Filters:   Mod 3.0 PC  
***
  ***    
***
  ***    
 
     
Sub-Total
  ***    
***
  ***    
 
     
Total Model Price
  ***    
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

10


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
         
    Mod 4.0  
Compact Modcell 4.0 Primary 1st Carrier / 3 Sector w/ Duplex Filters:   Compact PC  
***
    ***  
***
    ***  
 
     
Total Model Price
    ***  
                                 
2nd Carrier Growth w/ no additional                        
Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0/ 4.0b     C4.0  
***   ***       ***     ***       ***  
***   ***     ***     ***     ***
***   ***       ***     ***     ***  
***   ***       ***     ***     ***
 
                       
Total Model Price
  ***       ***     ***       ***  
                                 
3rd Carrier Growth w/ no additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0/ 4.0b     C4.0  
***
    ***       ***       ***       ***  
***
    ***       ***       ***       ***  
***
    ***       ***       ***       ***  
***
    ***     ***     ***     ***
 
                       
Total Model Price
    ***       ***       ***       ***  
                                 
4th Carrier Growth w/ no additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0/ 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                    ***        
 
                       
Total Model Price
  Not offered   Not offered     ***     Not offered
         
4th Carrier Growth Modcell 4.0 Growth Cabinet for   Mod 4.0  
2.0 Primary Cabinet:   GF-1  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
         
4th Carrier Growth Modcell 4.0 Growth Cabinet for   Mod 4.0  
3.0 Primary Cabinet:   GF-1  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

11


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                         
5th Carrier Growth on 4.0 / 4.0b PC or on 4.0   with     with        
GF-1 with 2.0 PC / 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 /4.0b  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
                 
    with     with  
5th Carrier Growth on 2.0 GF-1 or 3.0 GF-1:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
                         
6th Carrier Growth on 4.0 / 4.0b PC or on 4.0 GF-1   with     with        
with 2.0 PC / 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 / 4.0b  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
                 
    with     with  
6th Carrier Growth on 2.0 GF-1 or 3.0 GF-1:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
7th — 11th Carrier Growth Kits for Modcell 4.0b will be Priced at ***.
         
    Mod 4.0  
7th Carrier Growth Modcell 4.0 Growth Cabinet for 4.0 Primary Cabinet:   GF-1  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
                 
7th Carrier Growth on   with     with  
4.0 GF-1 with a 2.0 PC or 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

12


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                         
8th Carrier Growth on 4.0 GF-1 with a 2.0 PC /   with     with     with  
3.0 PC/ 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***
 
                 
Total Model Price
    ***       ***       ***  
                         
9th Carrier Growth on 4.0 GF-1 with a 2.0 PC / 3.0   with     with     with  
PC/ 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
10th and 11th Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed above.
                                 
                    Mod 4.0 and     Redeployed  
V3 for 2nd Half of BTS w/ 1 3G1X Cxr (B2B):   Mod 2.0     Mod 3.0     C4.0     Price  
***
            ***               ***  
 
                       
Total Model Price
  Not offered     ***     Not offered     ***  
Note: ***
                                 
Modcell 4.0 EVDO Carrier Upgrade Note:   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: ***
6-Sector Upgrade Not to Exceed Price
                                 
Modcell 4.0b 6-Sector Upgrade (3G1X voice only,                
up to 3 Cxrs) with 64 CE + RTUNote :   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: Applicable only to those Modcell 4.0b’s shipped as 6-sector capable. Software will be available in June of 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to develop and deliver with general availability in commercially reasonable quantities 6-sector 3G1X voice-only upgrades for up to 3 carriers in a Modcell 4.0b cabinet by June 30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade in a timely manner.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

13


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                                 
Modcell 4.0b 6-Sector EVDO Upgrade                
with 64 CE + RTU (single carrier) Note:   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: Applicable only to those Modcell 4.0b’s shipped as 6-sector capable. Software will be available upon GA of November 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to develop and deliver with general availability in commercially reasonable quantities 6-sector single carrier, EvDo upgrades in a Modcell 4.0b cabinet by November 30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade in a timely manner.
EVDO Revision 0 to EVDO Revision A Upgrade Pricing
***
***
Please note the following:
  -   ***
 
  -   Pricing based on current product roadmap and does not constitute a commitment by Seller to produce, develop, make available, or manufacture IA.
 
  -   Customer responsible for IA antenna, miscellaneous cabling, and other potential items required for IA upgrade
The product roadmaps outlined above for: (1) EVDO Rev A, and; (2) Intelligent Antenna are provided by Seller solely to inform Buyer of Seller’s current plan of record for the relevant product(s) and both parties to this Agreement hereby agree that such information does not form a commitment of any kind on either party in relation to this Agreement but represents Seller’s good faith estimate as of the Effective Date. The terms and conditions, including pricing, of any features or functionalities that may be described in the product roadmap that are ultimately released, made generally available, or provided under this or subsequent agreements are subject to future negotiations and future agreement on the terms and conditions which would govern any sale. There are no penalties, liquidated damages or other remedies associated with changes to the
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

14


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
product roadmap including cancellation of any specific feature or functionality or delay in the timing of development.
         
Channel Element (CE) Pricing:        
***
    ***  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
                                                                 
Kits to Maintain 4 Hour Battery Backup   QUANTITIES
Description   List   Net   3S1C   3S2C   3S3C   3S4C   3S5C   3S6C
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
  ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
    ***       ***       ***       ***       ***       ***       ***       ***  
***
                                                               
 
                    ***       ***       ***       ***       ***       ***  
TOTAL Incremental List Price             ***       ***       ***       ***       ***  
TOTAL Net Incremental Price     ***       ***       ***       ***       ***       ***  
 
*Note: ***
ii. 5ESS / Flexent Packet Switch (FPS) Pricing:
      Discount Table
                         
Material   Standard   Spares   Net Effective
5ESS / FPS
    ***       ***       ***  
Power
                ***  
***
    ***
 
    ***
iii. Flexent Mobility Manager (FMM) Pricing:
      Discount Table
                         
Material   Standard   Spares   Net Effective
FMM HW
    ***       ***       ***  
FMM SW
    ***       ***       ***  
Power
                ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

15


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
iv. Access Manager (ECP / OMP-FX) Pricing:
     Discount Table
                         
Material   Standard   Spares   Net Effective
Axmgr
    ***       ***       ***  
Power
                ***  
v. FMS Based — EVDO Radio Network Controller (RNC) Pricing:
     Discount Table
                         
Material   Standard   Spares   Net Effective
FMS Based RNC HW
    ***       ***       ***  
FMS Based RNC SW
    ***       ***       ***  
Power
                ***  
vi. FBP — EVDO Radio Network Controller (RNC) Pricing:
     ***
     Discount Table
                         
Material   Standard   Spares   Net Effective
FBP Based RNC HW
    ***       ***       ***  
FBP Based RNC SW
    ***       ***       ***  
Power
    ***       ***       ***  
Note: Requires OMC-RAN.
vii. Gateway and Lucent Soft Switch Pricing:
                                 
            Unit List   Unit Net    
Comcode   Product Description   Price   Price   Discount
300724218
  VOICE MAIL INTERFACE ACCESSORY PACK   ***     ***       ***  
300724283
  PLEXVIEW ADVANCED TRAFFIC COLLECTION SW   ***     ***       ***  
300724366
  PLEXUS 9000 CUSTOMER DOC CDROM   ***     ***       ***  
300724374
  PLEXVIEW EMS DOCUMENTATION CDROM   ***     ***       ***  
300724382
  PLEXVIEW BILLING & TRAFFIC COLLECTION G   ***     ***       ***  
300741238
  PLEXVIEW FLOW-THRU PRO & PM XML API   ***     ***       ***  
300724317
  PLEXVIEW AMA PLUS BILLING SW   ***     ***       ***  
300723541
  P9000 CHASSIS & COMM EQUIP PROTECT W/SP3   ***     ***       ***  
300723590
  8XDS3/STS-1 IOM WITH TONE DETECT   ***     ***       ***  
300723657
  8XDS3/STS-1 PROTECT IOM, W/TONE DETECT   ***     ***       ***
300723897
  PLEXUS OPERATING S/W   ***     ***       ***  
300723913
  SS7 S/W PKG   ***     ***       ***  
300723947
  TDM TRUNK INTERFACE FEATURE PKG   ***     ***       ***  
300724036
  ENHANCED ROUTING S/W PKG   ***     ***       ***  
300724127
  IS-41D GATEWAY MSC SW FEATURE PKG   ***     ***       ***  
300724184
  SMDI FEATURE PKG   ***     ***       ***  
300724242
  PLEXVIEW ELEMENT MANAGER LICENSE   ***     ***       ***  
300724291
  PLEXVIEW ADV REPORTING NAMED USER LICEN   ***     ***       ***
300729688
  DS1 IOM KIT, 87-1002-A   ***     ***       ***  
300724259
  PLEXVIEW S/W BUNDLE PER EMS SERVER   ***     ***       ***  
300724267
  PLEXVIEW ADVANCED REPORTING SW PER EMS   ***     ***       ***  
Maintenance for LCS Gateway products will be charged on a per configuration basis.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

16


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
viib Lucent Network Controller and Lucent Network Gateway:
Pricing for the LNC and LNG shall be negotiated in good faith by the Parties at a later date.
viii. Optional Software & BRSS (Base Release System Software) Pricing:
***
ix.   PDSN Data Equipment Pricing:
     Discount Table
                         
Material   Standard   Spares   Net Effective
PDSN, including AAA SW
    ***       ***       ***  
Power
    ***       ***       ***  
x. Juniper Equipment Pricing
     Discount Table
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

17


 

     DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                 
Material   Standard   Spares
Hardware
    ***     ***
Software
    ***   ***
xi. Riverstone Equipment Pricing
     Discount Table
                 
Material   Standard   Spares
Hardware
    ***     ***
Software
    ***   ***
xii. Dorado Pricing
     Please see Appendix 1 for current Dorado Price Book.
  §   ***
 
  §   Dorado items are orderable with Juniper and/or Riverstone and Lucent gear
 
  §   All Customer requests for Dorado Quotes must go through the current quoting process.
xiii. ATM SHO and Integrated Network Systems (INS) Pricing
     Discount Table
                 
Material   Standard   Spares
PSAX 4500
    ***     ***
CBX 500 Hardware
    ***     ***
CBX 500 RTU Fees
    ***        
CBX 3500 Hardware
    ***     ***
CBX 3500 MX0X RTU Fee
    ***        
CBX 3500 Other RTU Fees
    ***        
     Pricing for other INS materials shall be negotiated in good faith by the Parties at a later date.
xiv. Wireless Intelligent Network (WIN) Pricing:
     Discount Table
                                 
                            OI
Material/Software/Service   List   Spares   Net Effective   Comcode
ECS 900 4 Tl Channelized Links Platform Software RTU
  ***             ***       300538014  
ECS 900 Base Configuration (1 Media Unit)
  ***             ***       300517828  
ECS 900 Base Spares
  ***     ***     ***       300568722  
eCS 900 Telecom Server Chassis e/q with 4 Tl Channelized Links
distributed over 2 Telecom Server Units. (These 4 Tl Channelized
Links equate to 32 low speed SS7 links).
  ***             ***       300517901
300517877
 
ECS, Release 24 Operating System & Utilities RTU
  ***             ***       300567641
300567658
 
ECS900 SRU (per eCS)
  ***             ***       300703188  
eMRS SRU (per eMRS)
  ***             ***       300703600  
ESM SRU (J6750)
  ***             ***       300703196  
eSM, RTU for up to 10 AHE/MAS connections
              ***       300570728  
LICENSE, RIGHT TO USE (per subscriber), eCS R24, ANSI-41 SHLR 9.0 & Authentication Center (AC)
  ***             ***       300723194
300723160
300723111
300723061
300723111
 
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

18


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                                 
                            OI
Material/Software/Service   List   Spares   Net Effective   Comcode
LICENSE, RIGHT TO USE, SHLR 8.0 or Later, Support MiRing (per sub)
    ***               ***       300723012  
Lucent IN Applications SRU (MiRing & SHLR, 1 million to 5 million subscribers) (per subscriber)
    ***               ***       300703519  
MiRing subscriber-RTU (per 1,000 subscriber RTU)
    ***               ***       300689494  
R24 eServices Intelligent Network On-line Platform Documentation CD Rom
    ***               ***          
SHLR Integration (eCS 900, eSM) for possible second pair expansion
    ***               ***       300427499  
SOFTWARE, ON TAPE, eCS R24, SHLR 9.0 - New Install
    ***               ***       300589629  
Spare 8GB Fully Populated Factory System Tested Memory Board (eCS 900)
    ***       ***       ***       300538089  
Spare, SCSI 36GB Boot disk
    ***       ***       ***       300707486  
SRU Integration Services (SHLR solution applications)
    ***               ***       300427499  
SRU Integration Services (SHLR solution platforms)
    ***               ***       300427499  
LICENSE, RIGHT TO USE, SHLR 8.0 or Later, Over The Air Parameter Administration (OTAPA) (per 1,000 subscribers)
    ***               ***       300722980  
RTU R23 - R24 - SNMP OA&M Data Collection Interface
    ***               ***       300570074  
SW & RTU for Performance Engineering Tools R24
    ***               ***       300566684  
HARDWARE KIT FOR EMRS R24,R25, SUNBLADE LMT+ REFR WS WITH ONE MONITOR
    ***               ***       300787512  
EQMT TO PROVIDE FOR BASE CABINET PLUS FIRST EMRS CHASSIS PROVISIONING (TS1) AND SECOND EMRS UNIT AT TS0, 30 INCH DEEP CABINET
    ***               ***       300679735  
SL-CAB-HWKIT, 30INCH,eMRS
    ***               ***       300679776  
FI-CAB-BASE, 30INCH,eMRS
    ***               ***       300679719  
FRAMEWORK, ASSEMBLY, WIRING & COMMON EQUIPMENT TO PROVIDE ONE COMPACT PCI 30 INCH EMRS CABINET FOR FIRST EMRS CHASSIS PROVISIONING (TS1)
    ***               ***       300679727  
CIRCUIT PACK, QUAD SS7 INTERFACE CARD AND Tl PORTS (408385482)
    ***       ***       ***       300326857  
CIRCUIT PACK, CPU, DUAL P3, 1Ghz CPU (408786895); CIRCUIT PACK, CPU 1Ghz — RTM (408790186)
    ***       ***       ***       300590551  
CIRCUIT PACK, ALARM BOARD2 (408802312)
    ***       ***       ***       300590759  
CIRCUIT PACK, MEDIA BAY MODULE (408403715)
    ***       ***       ***       300288271  
SPARE, CIRCUIT PACK, SCSI DATA DISK DRIVE, 36GB
    ***       ***       ***       300736790  
CIRCUIT PACK, POWER ENTRY MODULE (408403681)
    ***       ***       ***       300288255  
NMS CG6500 8-span El/71 VOIP board card, 2 10/100BaseT Network I/O (note: comcode 300590676 maps into 408781029-front card & 408761153 -RTM card in the eMRS H400-717 drawing)
    ***       ***       ***       300590676  
CIRCUIT PACK , MULTI-FUNCTION SYSTEM I/O CARD, ETHERNET CARD AND SCSI INTERFACE CARD (408641744); CIRCUIT PACK, MFIO — RTM (408532232)
    ***       ***       ***       300326832  
eSM, RTU for 20K TPH performance
    ***               ***       300278173  
eSM, RTU for up to 10 eMRS connection
    ***               ***       300277951  
eSM, RTU for 4 eCS/SCP connection
    ***               ***       300278058  
eSM, RTU for 50K TPH performance
    ***               ***       300278207  
Tl Channelized Links Spare
    ***       ***       ***       300618964  
Note: ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

19


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xv. Messaging Pricing:
     Please refer to Attachment L for Messaging pricing.
xvi.   NOS Pricing:
     Order Information:
                                             
                    Term of                    
    Order           Comcode # and other Description   Service or                   Extended
    Type   Comcode #   (E.g. Level of Support, Upgrades Included, etc.)   License   Qty   Fee   Fee
1
  SW     108375494     NetminderNTP RTU (One time Right-to-use)
Software License

List Price: *** per MSC
MetroPCS Discount Price *** per MSC
  One time     1     ***
***
  ***
***
2
  Training   OS3326   OS3326 NTP System User & Administration Training (4 days, 8 students) Instructor T&L not included   One time     1     ***     ***  
3
  SW     300660834     3rd Party SW: Times Ten (one per server)   One time     1     ***     ***  
4
  SW     300660842     3rd Party SW: Borland VisiBroker
(one per server)
  One time     1     ***     ***  
5
  SW     300660826     3rd Party SW: NTP Oracle RTU per CPU   One time     1     ***     ***  
6
  PS     108087289     LWS Services: IPA, install, configuration (one
server)
  One time     1     ***     ***  
7
  Annual Maint.     300012655     24X7 RTS-Remote Technical Support, (includes
Software Updates, Upgrade for Core, Web Site
Access) ***
  annual     1     ***     ***  
Term for Software Support Services: Any Software support Service charges stated herein shall have an initial, non-cancelable term of ***, commencing upon the delivery of the Software (“Initial Support Term”). Software support Services will be provided in accordance with Seller’s standard Statement of Work (SOW) for such Services. Customer may access and view these SOWs and their associated terms and conditions at Seller’s web site address www.lucent.com/support.
Seller Hardware: In the event that the Software is utilized on Seller-provided server Products, Customer will provide Seller with reasonable access for installation and maintenance of Seller-owned Products and Customer agrees that title to such Product will remain with Seller at all times. Upon termination of the license utilizing Seller owned Products, Customer shall return such Products to Seller within 15 days of such termination or Seller may invoice, and Customer shall pay, the then current value of the Products retained.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

20


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xvii. Training Pricing:
Training will be provided in accordance with Seller’s standard training program at then-current rates. For more information please refer to Attachment B. A BP99-Form will need to be filled out from time to time.
xviii. Documentation Pricing:
Documentation will be provided in accordance with Seller’s standard documentation program at then-current rates. For more information please contact CIC 888-582-3688 or www.lucentdocs.com.
Customer Code = DK
xix. Services Pricing:
Please refer to Attachment J for Services pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

21


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 1 — DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

22


 

DRAFT — Subject to legal review and approval by the
Parties APPENDIX 1 — DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

23


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 1 — DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

24


 

Attachment B
TRAINING
1. Introduction
Lucent training courses (the “Training Courses”) are developed in accordance with systematic training development processes. The Training Courses are combined into a comprehensive training program that is oriented toward job functions associated with operating and managing various Products and Software sold by Lucent. The Training Courses utilize classroom lectures with audio/video training aids, PC-based training, and/or practical hands-on experience to assure that students acquire theoretical as well as practical knowledge.
2. Training ***
a. ***
b. Training will consist of Lucent’s standard training for Customer’s personnel in the planning for and operation and maintenance of Products and Software provided under the Agreement. ***
3. Training Courses
The Training Courses for which Customer shall be eligible, based upon Customer’s current Product and Software demands, shall be those set forth in the course description schedule set forth below in this Attachment B (the “Course Description Schedule”). From time to time during the Term, Lucent may offer to Customer new or different Training Courses which are not identified on the Course Description Schedule. In such event, Lucent shall provide Customer with a list of the new or different Training Courses at the time such Training Courses become generally available to Lucent’s customers. In the event that Customer purchases (or licenses, in the case of Software) other Products or Software during the Term for which Lucent provides Training Courses, Lucent shall provide Customer with a list of such available Training Courses at the time of Lucent’s delivery of the Product or Software. The Course Description Schedule
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

1


 

shall be amended once annually, on or before December 1st of the then-current year of the Term, to identify any new or different Training Courses for which Customer shall be eligible.
4. Training Contact Information
Website:
Customer has the option to access an up-to-date list of Training Courses available for Products and Software and register for training by accessing the following website: https://training.lucent.com/SabaWeb
Open Enrollment Classes (Lucent Training Facility):
***
Customer Site Training and Scheduling Training:
Tamara Birdsong (Lucent Training Coordinator)
Phone: ***
Email: ***
5. Training Terms and Conditions
a. The following terms and conditions apply to Training Courses provided either at a Lucent training center or at a Customer location:
(1) The price for the Training Course includes all tuition and standard course materials.
(2) Student requests for Lucent’s training publications will be satisfied from materials that are included in the Training Course. Requests for materials involving Products not included in the Training Course will be forwarded to both Customer’s representatives and the Lucent Account Executive for negotiation. The cost of non-Lucent training publications will be the student’s responsibility.
(3) All training will be conducted in English. Written materials will be provided in English.
(4) If an interpreter is necessary, the length and cost of the training may increase; any such increases shall be identified by Lucent in advance.
(5) Scheduled Training Courses can be cancelled by Customer fifteen (15) calendar days in advance of the start of such Training Course without any Customer liability for such cancellation. Except for cancellations caused by events beyond Customer’s reasonable control, cancellations that occur five (5) to fourteen (14) calendar days before the start of a Training Course will result in a cancellation fee to Customer ***; provided, however, that if Seller is able to secure attendance by another person to fill such seat, there will be no cancellation fee. Except for cancellations caused by events beyond Customer’s reasonable control, cancellations that occur zero (0) to five (5) calendar days before the start of a Training Course will result in a cancellation
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

2


 

fee to Customer of *** for such Training Course; provided, however, that if Seller is able to secure attendance by another person to fill such seat, there will be no cancellation fee. Cancellation fees shall first be deducted from Customer’s Training Credits. In the event that Customer has insufficient Training Credits to cover all cancellation fees, Customer shall pay Lucent the balance.
(6) Lucent’s Training Courses are constantly being revised and updated; therefore, the duration, pricing and exact content of the Training Course may change from those described in this Attachment B, including in the Course Description Schedule.
b. The following additional terms and conditions shall apply to Training Courses conducted only at a Lucent training center location (Lucent Training Center”):
(1) Student manuals are part of the tuition and become the property of the student upon completion of the applicable Training Course. All training aids, classroom documentation, software, and equipment owned and supplied by Lucent will remain Lucent’s property upon completion of the applicable Training Course.
(2) A minimum class size of eight (8) students is required to schedule a Customer-dedicated hands-on class. A minimum class size of twenty (20) students is required to schedule a Customer-dedicated, lecture-only class conducted at a Lucent Training Center. If Customer does not wish to schedule a dedicated class, the designated number of students will be placed in existing classes.
(3) Customer will be responsible for all student lodging and living expenses and all international, inter-city transportation, and transportation from the place of lodging to the training site unless otherwise stated. Lucent will assist in the logistics of obtaining lodging, and will also assist students in arranging transportation from the airport to the place of lodging.
(4) The schedules at Lucent’s Training Centers vary from five (5) to six (6) days a week, eight (8) hours per day. Students will be expected to attend classes as scheduled at the Lucent Training Center. This may include additional hours as may be required to maintain the progress of a given class.
(5) Customer should be aware that circumstances may dictate that days where no applicable training is offered (not including weekends) may occur during the duration of the student’s stay at a Lucent Training Center. There will be no tuition charge for non-training days; however, all student living expenses will be Customer’s responsibility.
(6) No training will be scheduled on holidays normally celebrated at the Lucent Training Center.
(7) If the students plan personal travel on days off, the Lucent Training Center would appreciate knowing their destination in case of emergency. The cost of personal travel is the responsibility of the student.
(8) All students will receive a student guide on the first day of the Training Course. Any additional training material is distributed at appropriate intervals during the Training Course.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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c. The following additional terms and conditions shall apply to Training Courses conducted only at a Customer location:
(1) Customer shall be required to provide suitable facilities and all the equipment necessary for on-site training (including test equipment). This equipment must be free of trouble and working, but not in service. Instructor time and related travel expenses will be required to set up Customer’s training site so that the equipment is configured like that in Lucent’s training lab and any related costs or fees to be paid by Customer therefor shall be fixed and set forth as separate line items in an agreed upon statement of work. This shall be required for each hands-on Training Course taught at Customer’s training site.
(2) Customer shall be responsible for all reasonable out-of-pocket instructor travel and living expenses, and the expenses associated with the shipping of Training Course material and equipment; provided, however, that such travel shall be at coach fares and Customer shall not be responsible for any entertainment expenses.
(3) ***
(4) Customer assumes the risk of loss, including theft and damage, to the Training Course-related equipment Lucent provides while such equipment is in the possession or control of Customer, but not during its delivery or transportation to Customer.
6. Prerequisites
It is assumed that the training population will have previous experience in, and possess a basic fundamental knowledge of, transmission and switching theory of operation. Further prerequisites are stated in the Training Course descriptions.
7. Training Implementation
a. An implementation plan for the training program will be developed after the Effective Date. This plan will identify the specific tasks that will be performed by Lucent (including recommended Training Courses) and the proper sequence in which to implement such tasks throughout the Term. Firm schedule dates for the Training Courses will be agreed to by the Parties after the Effective Date.
b. Special responsibilities and assumptions for the Parties with regards to training will also be noted in the implementation plan. This plan will assist in ensuring that operations are commenced and completed on time as required by the Agreement and will be mutually agreed to by Customer and Lucent.
8. Training Assumptions
Customer shall supply the personal computers associated with the PC-based training conducted on-site.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

4


 

9. Conflict
In the event there is any conflict between the terms and conditions of this Attachment B and the terms and conditions of Attachment A, this Attachment B shall control with respect to the Training Courses provided hereunder and Attachment A shall control for all other purposes.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

5


 

MOBILITY COURSE DESCRIPTION
CDMA — Switch Technician
                 
        Duration    
Course Number   Course Description   and Media   Price
CORE PRODUCT/TECHNOLOGY
               
 
               
CL1000C/W
Flexent™/AUTOPLEX® Wireless
System Overview
  ***   ***   ***
***
 
               
Overview of Flexent and CDMA
Basestations (optional)
  ***   ***   ***
 
               
CL5601C/W
Flexent Wireless Packet
Networks Overview
  ***   ***   ***
***
 
               
CL5110
Flexent Element Management
System Overview Tutorial
  ***   ***   ***    
 
               
LTD258M/W
Understanding the Basics of
Data Communications
  ***   ***   ***
***
 
               
LTD257M/W
Understanding TCP/IP Fundamentals
  ***   ***   ***
***
 
               
CL1910
TCP/IP Fundamentals
  ***   ***   ***    
 
               
LTD301M/W
Understanding IP and Voice over IP
  ***   ***   ***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

6


 

                 
        Duration    
Course Number   Course Description   and Media   Price
UC1070
Fundamentals of UNIX
  ***   ***   ***    
 
               
5ESS SWITCH/ECP
               
 
               
WS5M01
5ESS® DCS Maintenance:
System Fundamentals
  ***   ***   ***    
 
               
WS5M02
5ESS® Switch DCS
Maintenance: AM and CNI
  ***   ***   ***    
 
               
WS5M03
5ESS® Switch DCS
Maintenance: CM Hardware
  ***   ***   ***    
 
               
WS5M04
5ESS® Switch DCS
Maintenance: SM Hardware
  ***   ***   ***    
 
               
WS5M05
5ESS® Switch DCS
Trunk Maintenance
  ***   ***   ***    
 
               
WS5MO6
5ESS® DCS Maintenance:
Office Database Maintenance
  ***   ***   ***    
 
               
CL8005
Maintenance of the 5ESS® DCS
for Flexent™/AUTOPLEX®
Wireless System
  ***   ***   ***    
 
               
CL8002
Flexent™/AUTOPLEX® Wireless
Networks ECP — Complex
Maintenance
  ***   ***   ***    
 
               
CL8510
5ESS Switch CDMA Wireless
Application for NAR
  ***   ***   ***    
 
               
Flexent Mobility Manager/RNG Engineering
               
 
               
CL5500
FMS Mobility Server Overview
  ***   ***   ***    
 
               
CL5501
Mobility Manager Application Processor (AP) OA&M
  ***   ***   ***    
 
               
CL5502
Mobility Manager ROP
OA&M:
  ***   ***   ***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

7


 

                 
        Duration    
Course Number   Course Description   and Media   Price
CL5503C/W
Flexent Mobility Manager
Database Management Systems
(MM-DBMS) OA&M
  ***   ***   ***
 
               
CL5582
CDMA2000 1X Radio
Network Controller OA&M
  ***   ***   ***    
 
               
3G1X
               
 
               
CL3716
Overview of the 3G-1X Radio Access Network and Technology
  ***   ***   ***    
 
               
CL3737
3G1X High Speed Packet Data
Fundamentals
  ***   ***   ***    
 
               
1XEV-DO
               
 
               
LTW541M/W
1X-EVDO Networks
  ***   ***   ***
 
               
CL5660C
1xEV-DO Radio Access System
OA&M
  ***   ***   ***
 
               
CL5661
Flexent CDMA2000
1xEV-DO Radio Access System
OA&M
  ***   ***   ***    
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

8


 

                 
        Duration    
Course Number   Course Description   and Media   Price
Translations
 
               
CL3630
Flexent/AUTOPLEX
Wireless Networks
Digit-Routing
Translations
  ***   ***   ***  
 
               
CL3631
Flexent/AUTOPLEX
Wireless Networks
Multiple Systems
Networking
  ***   ***   ***  
 
               
CL5632
Flexent/AUTOPLEX CDMA Cell
Site Growth Translations
  ***       ***  
RF Engineer and Systems Performance Engineer
                 
        Duration    
Course Number   Course Description   and Media   Price
CORE PRODUCT/TECHNOLOGY
 
               
CL1000C/W
FlexentTM/AUTOPLEX® Wireless
System Overview
  ***   ***   ***
 
               
CL5601C/W
Flexent Wireless Packet
Networks Overview
  ***   ***   ***
 
               
CL5110
Flexent Element
Management System Overview
Tutorial
  ***   ***   ***    
 
               
LTD258M/W
Understanding the Basics of Data Communications
  ***   ***   ***
 
               
LTD257M/W
Understanding TCP/IP
Fundamentals
  ***   ***   ***
 
               
CL1910
TCP/IP Fundamentals
  ***   ***   ***    
 
               
CL5600C
Overview of Flexent and CDMA Basestations (optional)
  ***   ***   ***    
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

9


 

                 
        Duration    
Course Number   Course Description   and Media   Price
Design/Performance Engineering
 
               
CL8302
CDMA IS-95/3G1X RF Design & Growth Engineering for PCS (1900 MHz) Systems (for Engineers new to Lucent equipment)
  ***   ***   ***  
 
               
CL8303
CDMA IS-95-3G1X Base Station Call Processing (for engineers new to Lucent equipment)
  ***   ***   ***  
 
               
CL8304
CDMA 3G1X RF Design
Engineering & Base Station Call
Processing (If not taking
CL8302/CL8303)
  ***   ***   ***  
 
               
CL8306
CDMA2000 1XEV-DO RF Design and Call Processing
  ***   ***   ***  
 
               
CL8306S
CDMA2000 1xEV-DO RF Engineering and Call Processing Pre-Deployment Seminar
  ***   ***   ***  
 
               
CL3723
Wireless AMPS/PCS CDMA RF
Performance Engineering
  ***   ***   ***  
 
               
System Capacity Monitoring and Engineering
 
               
CL1004
Flexent/AUTOPLEX System Capacity Monitoring and Engineering (SCME) for PCS CDMA
  ***   ***   ***  
 
               
CL1008
SCME for 1XEV-DO
  ***   ***   ***  
 
               
WATCHMARK
 
               
CL3723
Wireless AMPS/PCS CDMA RF
Performance Engineering
      ***   ***  
 
               
CL1519
Watchmark Prospect Admin. Fundamentals
  ***   ***   ***  
 
               
CL1522
Watch Mark Prospect — Lucent AMPS/CDMA/TDMA-New Users
  ***   ***   ***  
 
               
CL1523,
WatchMark Prospect™ -
Lucent
AMPS/CDMA/TDMA Special
Engineering Studies for Users
  ***   ***   ***  
 
               
3G1X
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

10


 

                 
        Duration    
Course Number   Course Description   and Media   Price
CL3716
Overview of the 3G-1X Radio Access Network and Technology
  ***   ***   ***    
 
               
CL3737
3G1X High Speed Packet Data
Fundamentals
  ***   ***   ***    
 
               
1XEV-DO
 
               
LTW541M/W
1X-EVDO Networks
  ***   ***   ***
 
               
CL5901
1X-EVDO Technology
  ***   ***   ***    
 
             
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

11


 

Systems Engineer (Equipment Engineer) and Switch/BSC Provisioning Engineer
             
        Duration    
Course Number   Course Description   and Media   Price
CL1000C
Flexent™/AUTOPLEX®
Wireless Networks System
Overview
  ***   ***   ***
 
CL1004
Flexent/AUTOPLEX System Capacity
Monitoring and Engineering
(SCME) for PCS CDMA
  ***   ***   ***
 
CL1008
SCME for 1XEV-DO
  ***   ***   ***
Switch (BSC) Engineer
             
        Duration    
Course Number   Course Description   and Media   Price
CL1000C
Flexent™/AUTOPLEX®
Wireless Networks System
Overview
  ***   ***   ***
 
CL5600C
Overview of Flexent and CDMA
Basestations (optional)
  ***   ***   ***
 
CL8002
Flexent™/AUTOPLEX®
Wireless Networks ECP -
Complex Maintenance
  ***   ***   ***
 
CL1004
Flexent/AUTOPLEX System Capacity
Monitoring and Engineering
(SCME) for PCS CDMA
  ***   ***   ***
 
CL1008
SCME for IXEV-DO
  ***   ***   ***
 
CL1519
Watchmark Prospect
Admin. Fundamentals
  ***   ***   ***
 
CL1522
WatchMark Prospect -
Lucent AMPS/CDMA/TDMA
for New Users
  ***   ***   ***
 
CL1523
WatchMark Prospect™ -
Lucent AMPS/CDMA/TDMA
Special Engineering
Studies for Users
  ***   ***   ***
 
CL5632
Flexent Translations
  ***   ***   ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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Customer Service Representatives
             
        Duration    
Course Number   Course Description   and Media   Price
CL1000C
Flexent™/AUTOPLEX®
Wireless Networks System
Overview
  ***   ***   ***
Network Operations Control Center Personnel
             
        Duration    
Course Number   Course Description   and Media   Price
CL1000C
Flexent™/AUTOPLEX®
Wireless Networks System
Overview
  ***   ***   ***
 
CL1111
Flexent™/AUTOPLEX®
NOC Fundamentals and Fault Isolation
  ***       ***
RF Base Station Maintenance Personnel
             
        Duration    
Course Number   Course Description   and Media   Price
Core Product/Technology
 
CL1000C
Flexent™/AUTOPLEX®
Wireless Networks System
Overview
  ***   ***   ***
 
CL5601C/W
Flexent Wireless Packet Networks
Overview
  ***   ***   ***
 
CL5110
Flexent Element Management System
Overview Tutorial
  ***   ***   ***
 
LTD258M/W
Understanding the Basics of
Data Communications
  ***   ***   ***
 
LTD257M/W
Understanding TCP/IP Fundamentals
  ***   ***   ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

13


 

                 
        Duration    
Course Number   Course Description   and Media   Price
CL1910
TCP/IP Fundamentals
  ***   ***     ***  
 
               
Cell Site Engineering
 
               
CL5600C
Overview of CDMA and Flexent CDMAN Base Stations
  ***   ***     ***
 
               
CL5610
Flexent CDMA Modular cell OA&M
  ***   ***     ***  
 
               
CL5690
CDMA Modular ell 4.0 Operations, Administration and Maintenance
  ***   ***     ***  
 
               
CL5696
Advanced Remote Tool Usage
  ***   ***     ***  
 
               
3G1X
 
               
CL3716
Overview of the 3G-1X Radio Access Network and Technology
  ***   ***     ***  
 
               
CL3737
3G1X High Speed Packet Data
Fundamentals
  ***   ***     ***  
 
               
1XEV-DO
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

14


 

                 
        Duration    
Course Number   Course Description   and Media   Price
LTW541M/W
1X-EVDO Networks
  ***   ***   ***
***
 
               
CL5660C
1xEV-DO Radio Access System OA&M
  ***   ***   ***    
Timelines for each job function:
Below are suggested timelines for the start and completion of training. The intervals identified are relative to cutover of the system to Customer. These timelines assume availability of the student to complete courses in a timely manner and the availability of instructor-led courses.
                 
            Start   Instructor-led
    Start CD based   CD-based training   Instructor-led   courses
Job Function   Training   completed   course   completed
Switch Technician
  ***   ***   ***   ***
 
               
RF Eng. & Systems Performance Eng
  ***   ***   ***   ***
 
               
Systems Engineer (Equipment Engineer) and Switch/BSC Provisioning Eng.
  ***   ***   ***   ***
 
               
Switch (BSC) Eng.
  ***   ***   ***   ***
 
               
Customer Service
Representatives
  ***   ***   ***   ***
 
               
Network Operations
Control Center
Personnel
  ***   ***   ***   ***
 
               
RF Base Station
Maintenance Personnel
  ***   ***   ***   ***
Note: It is also suggested that prospective students visit a Lucent network that is currently up and running. This will help reinforce what they have learned thus further preparing them to support their own network.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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WIRELINE COURSE DESCRIPTION
Wireline 5ESS® Switches
             
        Duration    
Course Number   Course Description   and Media   Price
ES5010
5ESS Switch Architecture
  ***   ***   ***
 
           
ES5521
5ESS Switch Operations and Maintenance Fundamentals
  ***   ***   ***
 
           
ES5523
5ESS Switch Database and Recent Change
  ***   ***   ***
 
           
ES505A
5ESS Switch Translations:
Essentials for Recent
Change
  ***   ***   ***
 
           
ES505B
5ESS Switch Translations:
Recent Change for Business
Applications
  ***   ***   ***
 
           
ES505C
5ESS Switch Translations:
Recent Change for ISDN
  ***   ***   ***
 
           
ES505D
5ESS Switch Translations: R/C for Digit Analysis, Routing, and Charging
  ***   ***   ***
 
           
ES505E
5ESS Switch Translations:
Recent Change for
Trunks
  ***   ***   ***
 
           
ES505P
5ESS Switch Number Portability Call Processing and Provisioning
  ***   ***   ***
 
           
ES5555
5ESS Switch Hands-On
Maintenance
  ***   ***   ***
             
        Duration    
Course Number   Course Description   and Media   Price
ES5MOO
5ESS Switch Overview
  ***   ***   ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

16


 

             
Course Number   Course Description   Duration
and Media
  Price
ES5M01
5ESS Switch Maintenance: System Fundamentals
  ***   ***   ***
 
           
ES5M01T
5ESS Switch Tandem Applications: System Fundamentals
  ***   ***   ***
 
           
ES5M02
5ESS Switch Maintenance: switching Module Hardware Maintenance
  ***   ***   ***
 
           
ES5M02A
5ESS Switch Maintenance: AM and CNI Hardware Maintenance
  ***   ***   ***
 
           
ES5M02B
5ESS Switch Maintenance: CM Hardware Maintenance
  ***   ***   ***
 
           
ES5M02S
OneLink Manager ASM Maintenance
  ***   ***   ***
 
           
ES5M02N
5ESS Switch Maintenance: Common Channel Signaling Maintenance
  ***   ***   ***
 
           
ES5M03T
5ESS Switch Tandem Applications: Trunk Maintenance
  ***   ***   ***
 
           
ES5M03L
5ESS Switch Maintenance: Line Maintenance
  ***   ***   ***
 
           
ES5M04
5ESS Switch Maintenance: Office Database Maintenance
  ***   ***   ***
 
           
ES5M05
5ESS Switch Maintenance: System Analysis
  ***   ***   ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

17


 

             
ES5M20A
5ESS Switch Architecture Fundamentals
  ***   ***   ***
 
           
ES5M20B
5ESS Switch Maintenance Fundamentals
  ***   ***   ***
 
           
ES5M20C
5ESS Switch Hardware Maintenance Fundamentals
  ***   ***   ***
Stinger® and NavisAccess DSL
             
        Duration    
Course Number   Course Description   and Media   Price
20641
Stinger® Configuration and Administration
  ***   ***   ***
 
           
20641E
Stinger® Configuration and Administration Web-Based Training
  ***   ***   ***
 
           
20503
NavisAccess DSL 5.1 Fundamentals 1
  ***   ***   ***
 
           
20503E1
NavisAccess DSL 5.1 Fundamentals 1, web-based training
  ***   ***   ***
 
           
20503E2
NavisAccess DSL 5.1 Fundamentals 2, web-based training
  ***   ***   ***
 
           
20503E3
NavisAccess DSL 5.1 Service Creation, Monitoring, and Reporting
  ***   ***   ***
 
           
20503E4
NavisAccess DSL 5.1 Scheduling and Configuration Management
  ***   ***   ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

18


 

DRAFT — Subject to legal review and approval by the Parties
Attachment C
*** PRICING
1. GENERAL
The prices, discounts and incentives described in this Attachment apply in those circumstances (as set forth in Sections 1.2(b) and 1.4(b) of the Agreement) when the prices, discounts and incentives stated in Attachment A do not apply.
The following are not included in the pricing quoted in this Attachment C:
    Taxes, domestic transportation, hauling, hoisting, and warehousing;
 
    Engineering site visits (if required);
 
    Extraordinary installation items — helicopters, cranes, etc.;
 
    Power/battery plant, additions, growth and or replacements;
 
    Transmission/networking equipment, additions, growth and or replacement;
 
    Antennas/tower, additions, growth modifications;
 
    Building modifications/construction;
 
    Optional hardware items associated with select Lucent Software (e.g. OTA, SMS, AutoPace, billing platforms, etc.);
 
    All charges associated with non-Standard Intervals ;
 
    Any other items not specifically quoted in this Attachment.
2. EXISTING AND NEW MARKETS
EXISTING MARKETS
***
NEW MARKETS
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

1


 

DRAFT — Subject to legal review and approval by the Parties
3. ***
     
     
     
     
     
     
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

2


 

DRAFT — Subject to legal review and approval by the Parties
   
 
   
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

3


 

DRAFT — Subject to legal review and approval by the Parties
PRODUCT CATEGORIES
A.   NEW MARKET PRICING
  i.   Base Station Pricing
 
  ii.   Flexent Mobility Manager (FMM) Pricing
 
  iii.   Access Manager (ECP / OMP-FX) Pricing
 
  iv.   Messaging Pricing
B.   EXISTING MARKET PRICING
  i.   Base Station Pricing
 
  ii.   5ESS / Flexent Packet Switch (FPS) Pricing
 
  iii.   Flexent Mobility Manager (FMM) Pricing
 
  iv.   Access Manager (ECP / OMP-FX) Pricing
 
  v.   FMS-Based EVDO Radio Network Controller (RNC) Pricing
 
  vi.   FBP — EVDO Radio Network Controller (RNC) Pricing
 
  vii.   Gateway and Lucent SoftSwitch Pricing (viib. — Lucent Network Controller and Lucent Network Gateway)
 
  viii.   Optional Software & BRSS (Base Release System Software) Pricing
 
  ix.   PDSN Data Equipment Pricing
 
  x.   Juniper Equipment Pricing
 
  xi.   Riverstone Equipment Pricing
 
  xii.   Dorado Pricing
 
  xiii.   ATM Soft Handoff (SHO) and Integrated Network Solutions (INS) Pricing
 
  xiv.   Wireless Intelligent Network (WIN) Pricing
 
  xv.   Messaging Pricing
 
  xvi.   NOS Pricing
 
  xvii.   Training Pricing
 
  xviii.   Documentation Pricing
 
  xix.   Services Pricing
Appendix 1 Dorado Pricing
Appendix 2 Tampa/Sarasota Market Offer Letter
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

4


 

DRAFT — Subject to legal review and approval by the Parties
4.A NEW MARKET PRICING
For New Markets, the following pricing will be honored for the Initial Term per the provisions listed herein, as well as Sections 13 above. For any Product or Software not specifically denoted in Section 4.A New Market Pricing below, the Existing Market pricing as defined in Section 4.B will apply.
i. Base Station Pricing:
Discount Table
                         
Material   Standard   Spares   Net Effective
Modcells
    ***       ***     ***
Channel Elements
    ***     ***   ***
Power / Batteries
    ***       ***     ***
  ***
***
         
***
    ***  
***
    ***  
***
    ***  
         
New Market Modcell 4.0b Primary 1st Carrier / 3 Sector (6-sector capable) w/      
Duplex Filters:   Mod 4.0b PC  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
                                 
New Market 2nd Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                    ***          
 
                       
Total Model Price
  Not offered     Not offered       ***     Not offered  
                                 
New Market 3rd Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                  ***          
 
                       
Total Model Price
  Not offered     Not offered       ***     Not offered  
                                 
New Market 4th Carrier Growth w/ no                        
additional Battery back-up:   Mod 2.0     Mod 3.0     Mod 4.0b     C4.0  
***
                    ***          
***
                    ***          
***
                    ***          
***
                    ***          
 
                       
Total Model Price
  Not offered     Not offered       ***     Not offered  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

5


 

DRAFT — Subject to legal review and approval by the Parties
NEW MARKETS PRICING
                         
New Market 5th Carrier Growth on 4.0 PC:   Mod 2.0     Mod 3.0     Mod 4.0b  
***
                    ***  
***
                    ***  
***
                    ***
***
                    ***  
 
                 
Total Model Price
  Not offered     Not offered       ***  
                         
New Market 6th Carrier Growth on 4.0 PC:   Mod 2.0     Mod 3.0     Mod 4.0b  
***
                  ***  
***
                    ***  
***
                    ***  
***
                  ***  
 
                 
Total Model Price
  Not offered     Not offered       ***  
New Market 7th - 11th Carrier Growth Kits for Modcell 4.0b will be Priced at ***
         
New Market: 7th Carrier Growth Modcell 4.0 Growth Cabinet for 4.0 Primary   Mod 4.0  
Cabinet:   GF-1  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
                         
New Market 8th Carrier Growth on 4.0 GF-1                with   with     with  
with a 4.0 PC: Mod 2.0 PC   Mod 3.0 PC     Mod 4.0 PC  
***
                    ***  
***
                    ***  
***
                    ***  
***
                  ***  
 
                 
Total Model Price
  Not offered     Not offered       ***  
                         
New Market 9th Carrier Growth on 4.0 GF-1   with     with     with  
with a 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
                    ***  
***
                    ***  
***
                    ***  
***
                    ***  
 
                 
Total Model Price
  Not offered     Not offered       ***  
New Market 10th and 11th Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed above.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

6


 

DRAFT — Subject to legal review and approval by the Parties
NEW MARKETS PRICING
                                 
New MarketNote 2nd V4 BTS w/ 2 3G1X Cxr   Mod 2.0 &                     Redeployed  
and 1 EVDO Cxr (B2B):   Mod 3.0     C4.0     Mod 4.0     Price  
***
                    ***       ***  
***
                    ***       ***  
***
                    ***       ***  
 
                       
Total Model Price
  Not offered     Not offered       ***       ***  
Note: ***
***
ii. Flexent Mobility Manager (FMM) Pricing:
Discount Table
                         
Material   Standard   Spares   Net Effective
Initial Launch New Market FMM HW
    ***       ***       ***  
Initial Launch New Market FMM SW
    ***       ***       ***  
Power
    ***       ***       ***  
***
     ***
iii. Access Manager (ECP /OMP-FX) Pricing:
Discount Table
                         
Material   Standard   Spares   Net Effective
Initial Launch New Market Axmgr
    ***       ***       ***  
Power
    ***       ***       ***  
iv. Messaging Pricing:
     Please refer to Attachment L for Messaging pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

7


 

DRAFT — Subject to legal review and approval by the Parties
4.B EXISTING MARKET PRICING
i. Base Station Pricing
Discount Table
                     
Material   Standard   Spares   Net Effective
Modcells
    ***     ***   ***
Channel Elements
    ***     ***   ***
Power / Batteries
    ***     ***   ***
  ***
***
         
***
    ***  
***
    ***  
***
    ***  
***
    ***  
Modcell 3.0 / 4.0 / 4.0b Primary & Modcell 2.0 / 3.0 / 4.0 / 4.0bGrowth Kit Pricing:
***   ***
 
***   ***
 
***   ***
 
***   ***
 
***   ***
 
***   ***
         
Modcell 4.0/4.0b Primary 1st Carrier / 3 Sector w/ Duplex Filters:   Mod 4.0/4.0b PC  
***
    ***  
***
    ***  
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
         
Modcell 3.0 Primary 1st Carrier / 3 Sector w/ Duplex Filters:   Mod 3.0 PC  
***
    ***  
***
    ***  
Sub-Total
    ***  
***
    ***  
 
     
Total Model Price
    ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

8


 

     DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
         
    Mod 4.0  
Compact Modcell 4.0 Primary 1st Carrier / 3 Sector w/ Duplex Filters:   Compact PC  
***   ***  
***   ***  
***   ***  
 
     
Total Model Price
  ***  
                                 
2nd Carrier Growth w/ no additional Battery                        
back-up:   Mod 2.0     Mod 3.0     Mod 4.0 / 4.0b     C4.0  
***   ***     ***     ***     ***  
***   ***     ***     ***     ***  
***   ***     ***     ***     ***  
Total Model Price
  ***     ***     ***     ***  
                                 
3rd Carrier Growth w/ no additional Battery                        
back-up:   Mod 2.0     Mod 3.0     Mod 4.0 / 4.0b     C4.0  
***   ***     ***     ***     ***  
***   ***     ***     ***     ***  
***   ***     ***     ***     ***  
 
                       
Total Model Price
  ***     ***     ***     ***  
                                 
4th Carrier Growth w/ no additional Battery                        
back-up:   Mod 2.0     Mod 3.0     Mod 4.0/4.0b     C4.0  
***                   ***          
***                   ***          
***                   ***          
 
                       
Total Model Price
  Not offered     Not offered     ***     Not offered  
         
    Mod 4.0  
4th Carrier Growth Modcell 4.0 Growth Cabinet for 2.0 Primary Cabinet:   GF-1  
***   ***  
***   ***  
***   ***  
***   ***  
Sub-Total
  ***  
***   ***  
***   ***  
 
     
Total Model Price
  ***  
         
    Mod 4.0  
4th Carrier Growth Modcell 4.0 Growth Cabinet for 3.0 Primary Cabinet:   GF-1  
***   ***  
***   ***  
***   ***  
***   ***  
Sub-Total
  ***  
***   ***  
 
     
Total Model Price
  ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

9


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                         
5th Carrier Growth on 4.0 PC or on 4.0 GF-1   with     with        
with 2.0 PC / 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
                 
    with     with  
5th Carrier Growth on 2.0 GF-1 or 3.0 GF-1:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
                         
6th Carrier Growth on 4.0 or on 4.0 GF-1   with     with          
with 2.0 PC/ 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0    
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***
 
                 
Total Model Price
    ***       ***       ***  
                 
    with     with  
6th Carrier Growth on 2.0 GF-1 or 3.0 GF-1:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
7th - 11th Carrier Growth Kits for Modcell 4.0b will be Priced at ***
         
    Mod 4.0  
7th Carrier Growth Modcell 4.0 Growth Cabinet for 4.0 Primary Cabinet:   GF-1  
***
    ***  
***
    ***  
***
    ***  
***
    ***  
 
     
Sub-Total
    ***  
***
     
***
    ***  
 
     
Total Model Price
    ***  
                 
7th Carrier Growth on 4.0 GF-1 with a 2.0 PC   with     with  
or 3.0 PC:   Mod 2.0 PC     Mod 3.0 PC  
***
    ***       ***  
***
    ***       ***  
***
    ***       ***  
 
           
Total Model Price
    ***       ***  
                         
8th Carrier Growth on 4.0 GF-1 with a 2.0 PC   with     with     with  
/ 3.0 P C/ 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

10


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                         
9th Carrier Growth on 4.0 GF-1 with a 2.0 PC   with     with     with  
/ 3.0 PC/ 4.0 PC:   Mod 2.0 PC     Mod 3.0 PC     Mod 4.0 PC  
***
    ***       ***       ***  
***
    ***       ***       ***  
***
    ***       ***       ***  
 
                 
Total Model Price
    ***       ***       ***  
10th and 11th Carrier Growth Kits on 4.0 will be Priced as those Growth Kits listed above.
                                 
Modcell 4.0 EVDO Carrier UpgradeNote:   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: ***
6-Sector Upgrade Not to Exceed Price
                                 
Modcell 4.0b 6-Sector Upgrade (3G1X                
voice only, up to 3 Cxrs) with 64 CE +                
RTUNotc:   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: Applicable only to those Modcell 4.0b’s shipped as 6-sector capable. Software will be available upon GA by June 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to develop and deliver with general availability in commercially reasonable quantities 6-sector 3G1X voice only functionality for up to 3 carriers in a Modcell 4.0b cabinet by June 30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade in a timely manner.
                                 
Modcell 4.0b 6-Sector EVDO Upgrade                
(single carrier) with 64 CE+ RTUNotc:   Mod 2.0   Mod 3.0   Mod 4.0   C4.0
***
    ***       ***       ***       ***  
Note: Applicable only to those Modcell 4.0s shipped as 6-sector capable. Software will be available upon GA by November 30, 2006.
Notwithstanding anything contained herein to the contrary, Seller is committed to develop and deliver with general availability in commercially reasonable quantities 6-sector single carrier, EvDo upgrades in a Modcell 4.0b cabinet by November 30, 2006, provided Customer cooperates with Seller to conduct the FOA for such upgrade in a timely manner.
***
***
***
***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

11


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
Intelligent Antenna (IA) Planning Prices
***
Please note the following:
  -   ***
 
  -   Pricing based on current product roadmap and does not constitute a commitment by SELLER to produce, develop, make available, or manufacture IA.
 
  -   Customer responsible for IA antenna, misc. cabling, and other potential items required for IA upgrade
The product roadmaps outlined above for: (1) EVDO Rev A; and (2) Intelligent Antenna are provided by Seller solely to inform Buyer of Seller’s current plan of record for the relevant product(s) and both parties to this Agreement hereby agree that such information does not form a commitment of any kind on either party in relation to this Agreement but represents Seller’s good faith estimate as of the Effective Date. The terms and conditions, including firm pricing, of any features or functionalities that may be described in the product roadmap that are ultimately released, made generally available, or provided under this or subsequent agreements are subject to future negotiations and future agreement on the terms and conditions which would govern any sale. There are no penalties, liquidated damages or other remedies associated with changes to the product roadmap including cancellation of any specific feature or functionality or delay in the timing of development.
         
Channel Element (CE) Pricing:
       
***   ***  
***   ***  
***   ***  
***   ***  
***   ***  
                                                                 
Kits to Maintain 4 Hour Battery Backup                   QUANTITIES  
Description   List     Net     3S1C     3S2C     3S3C     3S4C     3S5C     3S6C  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
***     ***       ***       ***       ***       ***       ***       ***       ***  
 
                                                   
TOTAL List Price     ***     ***       ***       ***       ***       ***  
TOTAL Incermental List Price           ***       ***       ***       ***       ***  
TOTAL Net Incremental Price       ***     ***       ***       ***       ***       ***  
 
*   Note: ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

12


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
ii.   5ESS / Flexent Packet Switch (FPS) Pricing
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
5ESS / FPS
    ***     ***     ***
Power
    ***     ***     ***
***
    ***
 
    ***
iii.   Flexent Mobility Manager (FMM) Pricing:
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
FMM HW
    ***     ***     ***
FMM SW
    ***     ***     ***
Power
    ***     ***     ***
iv.   Access Manager (ECP / OMP-FX) Pricing:
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
Axmgr
    ***     ***     ***
Power
    ***     ***     ***
v.   FMS Based — EVDO Radio Network Controller (RNC) Pricing:
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
FMS Based RNC HW
    ***     ***     ***
FMS Based RNC SW
    ***     ***     ***
Power
    ***     ***     ***
vi.   FBP — EVDO Radio Network Controller (RNC) Pricing:
 
    ***
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
FBP Based RNC HW
    ***     ***     ***
FBP Based RNC SW
    ***     ***     ***
Power
    ***     ***     ***
    Note: Requires OMC-RAN.
 
vii.   Gateway and Lucent Soft Switch Pricing:
                             
        Unit List     Unit Net        
Comcode   Product Description   Price     Price     Discount  
300724218
  VOICE MAIL INTERFACE ACCESSORY PACK   ***     ***       ***
300724283
  PLEXVIEW ADVANCED TRAFFIC COLLECTION SW   ***     ***       ***
300724366
  PLEXUS 9000 CUSTOMER DOC CDROM   ***     ***       ***
300724374
  PLEXVIEW EMS DOCUMENTATION CDROM   ***     ***       ***
300724382
  PLEXVIEW BILLING & TRAFFIC COLLECTION G   ***     ***       ***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

13


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                             
        Unit List     Unit Net        
Comcode   Product Description   Price     Price     Discount  
300741238
  PLEXVIEW FLOW-THRU PRO & PM XML API   ***     ***       ***
300724317
  PLEXVIEW AMA PLUS BILLING SW   ***     ***       ***
300723541
  P9000 CHASSIS & COMM EQUIP PROTECT W/SP3   ***     ***       ***
300723590
  8XDS3/STS-1 IOM WITH TONE DETECT   ***     ***       ***
300723657
  8XDS3/STS-1 PROTECT IOM, W/TONE DETECT   ***     ***       ***
300723897
  PLEXUS OPERATING S/W   ***     ***       ***
300723913
  SS7 S/W PKG   ***     ***       ***
300723947
  TDM TRUNK INTERFACE FEATURE PKG   ***     ***       ***
300724036
  ENHANCED ROUTING S/W PKG   ***     ***       ***
300724127
  IS-41D GATEWAY MSC SW FEATURE PKG   ***     ***       ***
300724184
  SMDI FEATURE PKG   ***     ***       ***
300724242
  PLEXVIEW ELEMENT MANAGER LICENSE   ***     ***       ***
300724291
  PLEXVIEW ADV REPORTING NAMED USER LICEN   ***     ***       ***
300729688
  DS1 IOM KIT, 87-1002-A   ***     ***       ***
300724259
  PLEXVIEW S/W BUNDLE PER EMS SERVER   ***     ***       ***
300724267
  PLEXVIEW ADVANCED REPORTING SW PER EMS   ***     ***       ***
Maintenance for LCS Gateway products will be charged on a per configuration basis.
vii.   Lucent Network Controller and Lucent Network Gateway:
Pricing for the LNC and LNG shall be negotiated in good faith by the Parties at a later date.
viii.   Optional Software & BRSS (Base Release System Software) Pricing:
***
***
***
***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

14


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
***
ix.   PDSN Data Equipment Pricing
 
    Discount Table
                         
Material   Standard   Spares   Net Effective
PDSN, including AAA SW
    ***     ***     ***
Power
    ***     ***     ***
x.   Juniper Equipment Pricing
 
    Discount Table
                 
Material   Standard   Spares
Hardware
    ***     ***
Software
    ***   ***
xi.   Riverstone Equipment Pricing
 
    Discount Table
                 
Material   Standard   Spares
Hardware
    ***   ***
Software
    ***   ***
xii.   Dorado Pricing
Please see Appendix 1 for current Dorado Price Book.
  §   ***
 
  §   Dorado items are orderable with Juniper and/or Riverstone and Lucent gear
 
  §   All customer requests for Dorado Quotes must go through the current quoting process.
xii.   ATM SHO and Integrated Network Systems (INS) Pricing
 
    Discount Table
                 
Material   Standard   Spares
PSAX 4500
    ***     ***
CBX 500 Hardware
    ***     ***
CBX 500 RTU Fees
    ***    
CBX 3500 Hardware
    ***     ***
CBX 3500 MXOX RTU Fee
    ***    
CBX 3500 Other RTU Fees
    ***    
    Pricing for other INS materials shall be negotiated in good faith by the Parties at a later date.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

15


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xiii.   Wireless Intelligent Network (WIN) Pricing:
 
    Discount Table
                                 
Material/Software/Service   List   Spares   Net Effective   OI Comcode
eCS 900 4 T1 Channelized Links Platform Software RTU
    ***               ***       300538014  
eCS 900 Base Configuration (1 Media Unit)
    ***               ***       300517828  
eCS 900 Base Spares
    ***       ***       ***       300568722  
eCS 900 Telecom Server Chassis e/q with 4 Tl Channelized Links distributed over 2 Telecom Server Units. (These 4 Tl Channelized Links equate to 32 low speed SS7 links).
    ***               ***       300517901 300517877  
eCS, Release 24 Operating System & Utilities RTU
    ***               ***       300567641 300567658  
eCS900 SRU (per eCS)
    ***               ***       300703188  
eMRS SRU (per eMRS)
    ***               ***       300703600  
eSM SRU(J6750)
    ***               ***       300703196  
eSM, RTU for up to 10 AHE/MAS connections
    ***               ***       300570728  
LICENSE, RIGHT TO USE (per subscriber), eCS R24, ANSI-41 SHLR 9.0 & Authentication Center (AC)
    ***               ***       300723194 300723160 300723111 300723061 300723111  
LICENSE, RIGHT TO USE, SHLR 8.0 or Later, Support MiRing (per sub)
    ***               ***       300723012  
Lucent IN Applications SRU (MiRing & SHLR, 1 million to 5 million subscribers) (per subscriber)
    ***               ***       300703519  
MiRing subscriber-RTU (per 1,000 subscriber-RTU)
    ***               ***       300689494  
R24 eServices Intelligent Network On-line Platform Documentation CD Rom
                    ***          
SHLR Integration (eCS 900, eSM) for possible second pair expansion
    ***               ***       300427499  
SOFTWARE, ON TAPE, eCS R24, SHLR 9.0 - New Install
    ***               ***       300589629  
Spare 8GB Fully Populated Factory System Tested Memory Board (eCS 900)
    ***       ***       ***       300538089  
Spare, SCSI 36GB Boot disk
    ***       ***       ***       300707486  
SRU Integration Services (SHLR solution applications)
    ***               ***       300427499  
SRU Integration Services (SHLR solution platforms)
    ***               ***       300427499  
LICENSE, RIGHT TO USE, SHLR 8.0 or Later, Over The Air Parameter Administration (OTAPA) (per 1,000 subscribers)
    ***               ***       300722980  
RTU R23 - R24 - SNMP OA&M Data Collection Interface
    ***               ***       300570074  
SW & RTU for Performance Engineering Tools R24
    ***               ***       300566684  
HARDWARE KIT FOR EMRS,R24R25, SUNBLADE LMT+ REFR WS WITH ONE MONITOR
    ***               ***       300787512  
EQMT TO PROVIDE FOR BASE CABINET PLUS FIRST EMRS CHASSIS PROVISIONING (TS1)
    ***               ***       300679735  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

16


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
                                 
Material/Software/Service   List   Spares   Net Effective   OI Comcode
AND SECOND EMRS UNIT AT TS0, 30 INCH DEEP CABINET
                               
SL-CAB-HWKIT, 30INCH,eMRS
    ***               ***       300679776  
FI-CAB-BASE, 30INCH,eMRS
    ***               ***       300679719  
FRAMEWORK, ASSEMBLY, WIRING & COMMON EQUIPMENT TO PROVIDE ONE COMPACT PCI 30 INCH EMRS CABINET FOR FIRST EMRS CHASSIS PROVISIONING (TS1)
    ***               ***       300679727  
CIRCUIT PACK, QUAD SS7 INTERFACE CARD AND T1 PORTS (408385482)
    ***       ***       ***       300326857  
CIRCUIT PACK, CPU, DUAL P3, 1 Ghz CPU (408786895); CIRCUIT PACK, CPU 1 Ghz — RTM (408790186)
    ***       ***       ***       300590551  
CIRCUIT PACK, ALARM BOARD2 (408802312)
    ***       ***       ***       300590759  
CIRCUIT PACK, MEDIA BAY MODULE (408403715)
    ***       ***       ***       300288271  
SPARE, CIRCUIT PACK, SCSI DATA DISK DRIVE, 36GB
    ***       ***       ***       300736790  
CIRCUIT PACK, POWER ENTRY MODULE (408403681)
    ***       ***       ***       300288255  
NMS CG6500 8-span E1/T1 VOIP board card, 2 10/100BaseT Network I/O (note: comcode 300590676 maps into 408781029 -front card & 408761153 -RTM card in the eMRS H400-717 drawing)
    ***       ***       ***       300590676  
CIRCUIT PACK , MULTI-FUNCTION SYSTEM I/O CARD, ETHERNET CARD AND SCSI INTERFACE CARD (408641744); CIRCUIT PACK, MFIO — RTM (408532232)
    ***       ***       ***       300326832  
eSM, RTU for 20K TPH performance
    ***               ***       300278173  
eSM, RTU for up to 10 eMRS connection
    ***               ***       300277951  
eSM, RTU for 4 eCS/SCP connection
    ***               ***       300278058  
eSM, RTU for 50K TPH performance
    ***               ***       300278207  
Tl Channelized Links Spare
    ***       ***       ***       300618964  
 
Note:   ***
xiv.   Messaging Pricing:
 
    Please refer to Attachment L for Messaging pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

17


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xv.   NOS Pricing:
 
    Order Information:
                                             
                    Term of                    
    Order           Comcode # and other Description   Service or                   Extended
    Type   Comcode #   (E.g. Level of Support, Upgrades Included, etc.)   License   Qty   Fee   Fee
1
  SW     108375494     Netminder NTP RTU (One time Right-to-use) Software License   One time     1     ***   ***
 
              List Price: ***
MetroPCS Discount Price ***
                           
2
  Training   OS3326   OS3326 NTP System User & Administration Training (4 days, 8 students) Instructor T&L not included   One time     1       ***       ***  
3
  SW     300660834     3rd Party SW: Times Ten (one per server )   One time     1       ***       ***  
4
  SW     300660842     3rd Party SW: Borland VisiBroker (one per server)   One time     1       ***       ***  
5
  SW     300660826     3rd Party SW: NTP Oracle RTU per CPU   One time     1       ***       ***  
6
  PS     108087289     LWS Services: IPA, install, configuration (one server)   One time     1       ***       ***  
7
  Annual Maint.     300012655     24X7 RTS-Remote Technical Support, (includes Software Updates, Upgrade for Core, Web Site Access)***   annual     1       ***       ***  
Term for software support services: Any Software support Service charges stated herein shall have an initial, non-cancelable term of ***, commencing upon the delivery of the Software (“Initial Term”). Software support Services will be provided in accordance with Seller’s Statement of Work (SOW) for such Services. Customer may access and view these SOWs and their associated terms and conditions at Seller’s web site address www.lucent.com/support.
Seller Hardware: In the event that the Software is utilized on Seller provided server Products, Customer will provide Seller with reasonable access for installation and maintenance of Seller-owned Products and Customer agrees that title to such Products will remain with Lucent at all times. Upon termination of the license utilizing Seller owned Products, Customer agrees to return such Products upon written request to Seller within 15 days of such termination or Seller may invoice, and Customer shall pay, the then current value of the Products retained.
xvi.   Training Pricing:
Training will be provided in accordance with Seller’s standard training program at then-current rates. For more information please refer to Attachment B. A BP99-Form will need to be filled out from time to time.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

18


 

DRAFT — Subject to legal review and approval by the Parties
EXISTING MARKETS PRICING
xvii.   Documentation Pricing:
Documentation will be provided in accordance with Seller’s standard documentation program at then-current rates. For more information please contact CIC 888-582-3688 or www.lucentdocs.com.
Customer Code = DK
xviii.   Services Pricing:
Please refer to Attachment J for Services Pricing.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

19


 

DRAFT — Subject to legal review and approval by the parties
APPENDIX 1 — DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

20


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 1 — DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

21


 

DRAFT – Subject to legal review and approval by the Parties
APPENDIX 1 – DORADO PRICING
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

22


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 2 — TAMPA/SARASOTA MARKET OFFER LETTER
December 7, 2004
Mr. Roger Linquist
President and Chief Executive Officer
MetroPCS Wireless, Inc.
8144 Walnut Hill Lane, Suite 800
Dallas, TX 75231
Re: Final Revised Tampa/Sarasota Market Offer (10MHz)
Dear Roger:
Per our agreement, Lucent Technologies is pleased to provide you with the following revised offer for use in your newly acquired Florida spectrum, as well as a consideration for your existing properties. An overview of this proposal is as follows:
3G1X CDMA Wireless Network
Lucent Technologies shall supply MetroPCS with the following components, including associated services as described. The prices for all other equipment, software and services not specifically referenced herein shall be negotiated in good faith with MetroPCS, or will be priced per the existing General Agreement for the Purchase of PCS Systems between our companies, dated October 1, 2002, as amended from time to time (the “General Agreement”).
The proposal was configured with the following sizing guidelines:
             
    Phase 1   Phase 2   Phase 3
***   ***   ***   ***
***   ***   ***   ***
***   ***   ***   ***
***   ***   ***   ***
***   ***   ***   ***
***   ***   ***   ***
    Mobile Switching Center — Lucent Technologies proposes ***
 
    MSC ServicesIn support of this effort, Lucent Technologies shall provide MetroPCS with the following services at the following reduced pricing (for a detailed description of these services, please see each specific Statement of Work (SOW)). ***
Integration  — “Switch Move”
         
 
  ***
***
  ***
***
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

23


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 2 — TAMPA/SARASOTA MARKET OFFER LETTER
***
    CDMA Mod-cell 4.0 6-sector solutionLucent Technologies shall provide MetroPCS with *** Mod-cell 4.0 base stations equipped with 3-sectors and 1 carrier. These base stations will be capable of supporting 6-sector in the future (upon shipment, available beginning May 2005), and will function as 6-sector base stations when the necessary Lucent CDMA ECP Release 26.0 Software becomes generally available. Target GA date for R.26 is April of 2006. The price for each base station will be ***. Additionally, Lucent shall supply up to 508 carrier upgrade kits priced at ***. Pricing for the 3-sector to 6-sector (across all three carriers) upgrade (HW & SW only) will be ***. The pricing for subsequent Channel Elements and Power will be per the current General Agreement.
 
    Base Station I “Other” ServicesIn support of this effort, Lucent Technologies shall provide MetroPCS with the following services at the following reduced pricing (for a detailed description of these services, please see each specific Statement of Work (SOW)). Should MetroPCS wish to utilize Lucent Technologies’ Site Location and Construction Services, any purchase incentives set forth in the then current General Agreement cannot be utilized for these services.
***
     PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

24


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 2 — TAMPA/SARASOTA MARKET OFFER LETTER
    AnyPath Voice Messaging SolutionAdditionally, as a part of this bundled offer, Lucent Technologies would like to extend to MetroPCS a special new market offer for voice messaging: ***.
Existing Markets Offer
Additionally, Lucent would like to extend the following “one-time” special incentive for use in your current markets ***.
    CDMA Mod-cell base stations***
This offer, in its entirety, is per the terms and conditions of the current General Agreement between MetroPCS and Lucent Technologies, dated October 1, 2002. This offer will be incorporated into any subsequent General Agreement (upon the termination, expiration, renewal, extension, or re-negotiation of the current General Agreement) on terms and conditions mutually agreed by the parties. MetroPCS has the right to purchase the quantities described herein, with the associated discounts and incentives, through December 2007.
Please sign a copy of this offer letter and return it to me by close of business December 9, 2004 to acknowledge MetroPCS’ acceptance of this offer. Upon acceptance, this letter and the non-conflicting terms and conditions of the General Agreement constitute the entire agreement, and supersede all previous understandings (both written and oral), between the parties regarding the subject matter.
Best Regards,
Mark Gardner
Mark Gardner
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

25


 

DRAFT — Subject to legal review and approval by the Parties
APPENDIX 2 — TAMPA/SARASOTA MARKET OFFER LETTER
             
    Accepted by:    
 
           
    Metro PCS Wireless, Inc.    
 
           
 
  By:        
 
     
 
   
 
           
 
  Name:        
 
     
 
   
 
           
 
  Title:        
 
     
 
   
 
           
 
  Date:        
 
     
 
   
 
           
 
  CC :   Malcolm Lorang, MPCS    
 
      Bob Young, MPCS    
 
      Ben Bratcher,LU    
 
      Fred Kessler, LU    
 
      Anne DeKoker, LU    
 
      Kevin Daelke, LU    
 
           
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

26


 

(LOGO)
         
STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
ATTACHMENT D
LUCENT TECHNOLOGIES
PCS Wireless Network
Remote Technical Support Advantage
(RTSA)
AND
Multi Vendor Maintenance Service FOR
Sun Products (Sun
MVM)
Note: The respond/restore/resolve
times and ECP hours / % on page
9, and the price of CTA support
on p.24 are all items that
can possibly be redacted; however,
a similar attachment to the
5-4/A on 1/16/2004 (Attachment E)
did not redact these items.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

1


 

(LOGO)
         
STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
Table OF Contents
         
1 INTRODUCTION
    5  
 
       
Description of Services
    6  
 
       
2 TERM/DURATION
    6  
 
       
3 REMOTE TECHNICAL SUPPORT ADVANTAGE
    6  
 
       
4 SELLER RESPONSIBILITIES
    6  
 
       
4.1 Remote Technical Support (RTS) Description
    6  
4.1.1 Seller Tasks/Deliverables
    7  
4.1.2 RTS Performance Objectives
    7  
4.1.3 Definition of Severity Levels
    8  
4 1.4 Definition of Respond, Restore and Resolve
    8  
4.1.5 Respond, Restore and Resolve Objectives
    8  
4.1.6 Customer Service Delivery Feedback/Escalation
    9  
4.2 Customer Technical Advocate Support
    9  
4.2.1 Description
    9  
4.2.2 CTA Tasks/Deliverables
    10  
4.2.3 CTA Exclusions
    11  
4.3 Base Release Software and Service (BRSS)
    11  
4.3.1 Updates and Upgrades
    11  
4.3.2 License Audit
    13  
4.3.3 Distribution
    13  
4.3.4 Software Delivery
    13  
4.3.5 Pre-lnstallation Support
    14  
4.3.6 Installation Support
    14  
4.3.7 Retrofit Support
    14  
4.4 Software Support Policy
    15  
4.4.1 Normal Progression/Skipping
    15  
4.4.2 Major Release Life Cycle Ratings
    15  
4.4.3 Support Availability for Different Software Ratings*
    16  
 
       
5 CUSTOMER RESPONSIBILITIES
    17  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

2


 

(LOGO)
         
STARS #
  MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
         
5.1 Customer Responsibilities Concerning Lucent Web Site Access
    17  
 
       
6 EXCLUSIONS
    18  
 
       
7 ASSUMPTIONS/ELIGIBILITY FOR RTSA
    20  
7.1 Equipment Manufactured, and Installed by or Purchased from Seller
    20  
7.2 Other Situations
    21  
7.3 Customer’s Warranties of Authority
    21  
7.4 Support For Relocated Software
    21  
7.5 Commencement of RTSA
    22  
7.5.1 General
    22  
7.5.2 First System
    22  
7.5.3 Additional Systems
    22  
7.5.4 Addition of Existing Systems
    23  
 
       
8 GENERAL TERMS
    23  
8.1 Conditions
    23  
8.2 Change Management
    23  
8.3 Acceptance
    23  
8.4 Warranty
    23  
 
       
9 PRICING SECTION
    24  
9.1 Determination of Pricing Units
    24  
9.2 Pricing Notes
    24  
 
       
10 PRICING
    25  
10.1 Maintained Products for RTS and BRSS
    25  
10.1.1 Maintained Products
    25  
10.1.2 1XEVDO Maintained Products
    26  
10.1.3 Optional Feature Support
    26  
 
       
11 GLOSSARY
    26  
 
       
12 MULTIVENDOR MAINTENANCE SERVICE FOR SUN PRODUCTS (“SUN MVM”)
    30  
12.1 Elements of Work and Lucent Responsibilities
    30  
12.1.1 Description
    30  
12.2 Tasks/Deliverables
    30  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

3


 

(LOGO)
         
STARS #
  MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
         
12.2.1 MVM SUN Response Time Objectives
    30  
12.2.2 On-site Dispatched Technician
    31  
12.2.3 Hardware FRU Repair or Replacement
    31  
12.3 Customer Responsibilities
    32  
12.4 Exclusions
    34  
12.5 MVM SUN Definitions
    34  
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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STARS #
  MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
1 Introduction
This Attachment D describes the deliverables, parties’ respective responsibilities and other conditions applicable for the provision of Remote Technical Support Advantage (RTSA) by Lucent Technologies Inc. (“Seller”) for MetroPCS Wireless, Inc. (“Customer”), in addition, it describes Muitivendor Maintenance Service available for Sun Products.
Seller’s RTSA service consists of remote technical support Service (RTS) and software update and upgrade Service (BRSS) as further described in this Attachment, collectively referred to as the “Services”.
Performance of the Services described in this Attachment shall be governed by the terms of the Agreement. In the event of a conflict between the terms of the Agreement and this Attachment, the terms of this Attachment shall prevail. No obligation to provide a Service described herein shall arise unless an order for the Service, incorporating the terms of an agreed Purchase Order, has been placed by Customer under a signed governing agreement in place between Customer and Seller and accepted by Seller.
Seller’s performance of the Services described below is subject to the assumptions, exclusions and other conditions identified in this document.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
Description of Services
2 Term/Duration
“Term” shall refer collectively to the Initial Term and Renewal Terms as described below.

Initial Term: The “Initial Term” for RTSA Service is as defined in Article 1.2(a) of the Agreement.
For as long as Seller continues to offer RTSA as described in this Attachment, Customer’s RTS and BRSS programs will automatically renew for a “Renewal Term”, as defined in Article 1.2(b) of the Agreement, unless either party gives written notice of intent to not renew no later than *** prior to the expiration of the Term then in effect. The prices and terms of service for a Renewal Term shall incorporate any modifications of which Seller has provided Customer at least *** written notice prior to the end of the Initial Term or any subsequent Renewal Terms. Customer shall place a confirmatory purchase order for each Renewal Term prior to the first day of that Renewal Term.
3 Remote Technical Support Advantage
Seller’s RTSA Service provides Remote Technical Support (RTS) and Software Patches, Software Updates, and Software Upgrades (BRSS), as available, for the Seller commercially deployed Maintained Products listed in Section 10.1 that are made generally available during the subscription period.
The Products for which the Service is purchased are sometimes referred to in this Attachment as “Maintained Products”. The Maintained Products are the Products of the types listed in Section 10.1 of this Attachment that are commercially deployed and operational in Covered Systems (as that term is defined in Section 11 — Glossary).
RTSA is only applicable in the Territory.
4 Seller Responsibilities
4.1 Remote Technical Support (RTS) Description
Seller’s RTS Service uses remote access to allow Seller engineers to support Product-related questions, troubleshooting assistance and diagnostic procedures to restore and resolve network troubles.
Support Levels:
The RTS is offered as a Premium support Service, which provides access to remote engineers 24 hours a day, 7 days a week.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
4.1.1 Seller Tasks/Deliverables
Seller shall:
  o   Log Customer-initiated request for RTS (Assistance Request (AR)). Provide Customer with AR tracking number.
 
  o   Assign an AR to a Seller engineer to serve as single point of contact to facilitate communication and enable rapid restoration of service or technical assistance.
 
  o   Respond to Customer request for Product and technical information.
 
  o   Troubleshoot network problems, via phone, virtual private network (VPN), or modem connection, down to Maintained Product component level, or sufficiently to exclude Maintained Products as the root cause.
 
  o   Restore Maintained Products to operational status by identifying defective hardware components or providing Software and/or procedural workarounds, where feasible. All Software workarounds are licensed subject to the same terms, restrictions, and limitations as contained in the licenses under which the software was acquired.
 
  o   Provide 24x7x365 access to product specific Customer support content of the Lucent.com web site. Customer Support content may include technical product support information, subscription services, and other self-help facilities, as well as ability to submit ARs and check the status of ARs online.
4.1.2 RTS Performance Objectives
The RTS respond, restore, and resolve performance objectives, established by Seller, are dependent on the severity level of the request as reported by Customer to the Technical Assistance Center (“TAC”) via telephone.
To meet the Restore & Resolve objectives the problem must be reproducible at either Lucent’s location or on Customer’s system, verifiable by Lucent. If during analysis Seller determines the severity level of the problem as reported by Customer to be inaccurate, Seller reserves the right to re-assign severity. In these instances, Seller will notify Customer, and the objectives associated with the AR will be adjusted.
Seller will use its reasonable efforts to meet the applicable targets set forth in Section 4.1.4 ***. For purposes of determining Seller’s performance against such targets, a measurement shall be taken once annually after the end of a calendar year for which Customer has paid for the RTSA Program, based on ARs resolved during the measured year. The foregoing measurements shall only be taken with respect to a complete calendar year for which Customer has paid the applicable annual fee.
Lucent performance objectives extend to Maintained Products running on current software version release only, which includes Major Releases with a product lifecycle rating of SA or A&M, as described in section 4.4.2. Objectives are also contingent to Seller gaining remote access to Maintained Products to perform remote technical support.
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
4.1.3 Definition of Severity Levels
Severity Levels are defined as the condition of the system when Customer submits an AR. Severity Levels are defined below.
  o   Severity Level 1 (SL1, Critical): The system is inoperative and Customer’s inability to use the product has a critical effect on Customer’s operations. This condition is generally characterized by complete system failure and requires immediate correction. In addition, any condition that may critically impact human safety is considered a Severity Level 1 problem.
 
  o   Severity Level 2 (SL2, Major): The system is partially inoperative but still usable by Customer. The inoperative portion of the product severely restricts Customer’s operations, but has a less critical effect than a Severity Level 1 condition.
 
  o   Severity Level 3 (SL3, Minor): The system is usable by Customer, but with limited functions. This condition is not critical and does not severely restrict overall Customer operations.
 
  o   Severity Level 4 (SL4, Minor): The system is usable and the condition does not materially affect Customer’s operations.
4.1.4 Definition of Respond, Restore and Resolve
  o   RESPOND means a Seller Customer Support Engineer has contacted Customer regarding a particular AR and will begin working a proposed solution, repair or fix. In the event Seller is unable to contact Customer after three (3) attempts, the AR will be closed.
 
  o   RESTORE means that the problem is remedied sufficiently to return the product or major feature to operational status. Restore may mean that a temporary fix has been provided to temporarily correct the problem, or that a workaround has been implemented, or a method of restoration has been made available to Customer.
 
  o   RESOLVE means that a solution has been provided to permanently address the issue. This may occur simultaneously with Restore, unless the Restore is by means of a workaround suitable only for temporary use and Seller determines that a more suitable permanent solution can feasibly be provided.
4.1.5 Respond, Restore and Resolve Objectives
RTS performance targets for currently supported Maintained Products are outlined in the following tables:
PROPRIETARY AND CONFIDENTIAL TO METROPCS AND LUCENT TECHNOLOGIES INC.

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STARS #   MWS05CM005A1 (RTS)   MWS05UD0003A1 (BRSS)
         
Description   Premium Coverage
Call Receipt & Routing
    24x7  
     
Targets3   Premium Coverage
Respond
  ***
 
  ***
 
   
Restore
  ***
 
  ***
 
   
Resolve
  ***
 
  ***
 
2   Changes not requiring a design change or development of software code. If a design change or development of software code is required, and Seller elects, based upon its assessment of technical and economic feasibility, and subject to the applicable software support policy for the software in question to undertake same ***.
 
***   ***
4.1.6 Customer Service Delivery Feedback/Escalation
Customer may escalate a problem or provide feedback or complaints on the RTSA Service that is being delivered or has been delivered. RTSA Service Delivery Feedback is for tasks and provision of deliverables specifically defined in this document. Customer may initiate escalation or feedback by calling the TAC number, *** and ask to create a Delivery Feedback Assistance Request to initiate the process.
4.2 Customer Technical Advocate Support
4.2.1 Description
Seller will provide the Customer Technical Advocate (CTA) for Customer technical consultation and issue escalation. This support applies to Covered Software in Customer’s Covered System. CTA Support services are advisory only and no specific results are assured.