exv10w16



 





Exhibit 10.16



CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS
DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.




Execution Copy




SYSTEM EQUIPMENT PURCHASE AGREEMENT




          This System Equipment Purchase Agreement (“Agreement”) is made and is effective as of
June 14, 2007 (the “Effective Date”), by and between Cricket Communications, Inc. a
Delaware corporation (“Cricket”), Alaska Native Broadband 1 License, LLC, a Delaware
limited liability company (“ANB”), and Lucent Technologies Inc, a Delaware corporation (the
“Vendor”).



RECITALS:




          A. WHEREAS, Cricket desires to purchase, and to permit its Affiliates to purchase, wireless
communications systems, equipment and services pursuant to this Agreement;



          B. WHEREAS, Vendor desires to provide such systems and equipment and related services to
Cricket and its Affiliates in accordance with the terms and conditions set forth herein;



          C. WHEREAS, in the near future, Cricket intends to arrange to have a wholly-owned direct or
indirect subsidiary (referred to as “ProCo” in this Agreement), purchase equipment and
materials for Cricket and its Affiliates, and the parties therefore wish to provide for such
flexibility in this Agreement; and



          D. WHEREAS, Cricket and Vendor are parties to the Previous Agreement pursuant to which
wireless PCS systems, equipment and software were purchased or licensed, and the parties now wish
to terminate the Previous Agreement and utilize this Agreement for purposes of governing future
Purchase Orders issued to Vendor on and after the Effective Date, and including the flexibility
described above.



          NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this
Agreement, Cricket and Vendor hereby agree as follows:



     SECTION 1. DEFINITIONS



          1.1 Definitions. In addition to the terms listed below, certain additional terms are
defined elsewhere in this Agreement and in the Exhibits, and all definitions are subject to the
provisions of Section 1.2 hereof. As used in this Agreement, the
following terms have the
following meanings:


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          “Affiliate” means, with respect to a Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person, where “control” or
“controlled” means (i) the possession, direct or indirect, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities or other ownership interest, by contract or otherwise, or (ii) more than 50% of the
equity interest in such Person. Such Person shall not be a competitor of Vendor in the business of
manufacturing, integrating and selling telecommunications products.



          “Agreement” means this System Equipment Purchase Agreement, together with the
Specifications and all Exhibits hereto, together with all amendments, modifications and
supplements.



          “Annual Maintenance Fees” means annual fees relating to Software and Equipment
maintenance and support Services including, but not limited to those Services described in Exhibit
H.



          “Applicable Laws” means, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, all U.S. or foreign laws,
treaties, ordinances, judgments, decrees, injunctions, writs, orders and stipulations of any court,
arbitrator or governmental agency or authority and statutes, rules, regulations, orders and
interpretations thereof of any federal, state, provincial, county, municipal, regional,
environmental or other Governmental Entity, instrumentality, agency, authority, court or other body
(i) applicable to or binding upon such Person or any of its property or to which such Person or any
of its property is subject or (ii) having jurisdiction over all or any part of a System or the
Work.



          “Applicable Permits” means any waiver, exemption, zoning, building, variance,
franchise, permit, authorization, approval, license or similar order of or from any country,
federal, state, provincial, county, municipal, regional, environmental or other Governmental
Entity, instrumentality, agency, authority, court or other body having jurisdiction over all or any
part of a System or the Work.



          “Backwards Compatible” or “Backwards Compatibility” means (i) with respect to
each Software Release for any Product, the ability of all Software previously licensed to any
Company for such Product from [***]
to remain fully functional on such Equipment in accordance with and up to the
performance levels to which each was performing immediately prior to the integration with such
Software Release, and the ability of such Software Release to interoperate and be fully compatible
with all such functionality of all such previously provided Software and with all existing
in-service





 




			
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Vendor-provided Products acquired by such Company; (ii) with respect to all Equipment Releases (to
the extent of that portion of such Equipment Release that is an Equipment Update or the use of
which by any Company is not optional without losing the benefit of the Equipment Release (for
purposes of this Agreement, a “Required Equipment Release” means collectively such
Equipment Update portion and such non-optional portion of the Equipment Release), the ability of
the existing infrastructure to remain fully functional in accordance with and up to the performance
levels to which it was performing immediately prior to the integration with the Required Equipment
Release, and the ability of the Required Equipment Release to interoperate and be fully compatible
with all such functionality of such existing infrastructure and (iii) with respect to each Software
Release (but only to that portion of such Software Release that is considered a Software Update)
and Required Equipment Release, the ability of such Products to comply with the existing interfaces
to other third party equipment already deployed in the System and with respect to which Vendor is
already in compliance prior to the introduction of such Software Release (but only to that portion
of such Software Release that is considered a Software Update) and Required Equipment Release.




          “BTS” means the base station radio Products that handle wireless radio traffic in a
designated cell.



          “beta testing” means pre-launch testing conducted by any Company in respect of which
no payment from customers is made to such Company for the services provided in connection
therewith.



          “Business Day” means any day of the year other than a Saturday, Sunday or a United
States Federal holiday.



          “Certificate of Final Acceptance” is defined in Section 8.1(e).



          “Certificate of Substantial Completion” is defined in Section 8.1(c).



          “Change Orders” is defined in Section 9.1.



          “Claim” is defined in Section 13.2.



          “Claim Notice” is defined in Section 13.2.



          “Commercial Launch” or “Commercially Launch” means the date that the Products
provided by Vendor are carrying live, revenue generating or commercial traffic; provided, however,
that a Company may utilize the Products to carry customer traffic for temporary periods in
emergency-like or testing situations without such use constituting Commercial Launch.


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          “Company” means Cricket, ProCo, ANB or any of their respective Affiliates that are
Conveyed any Products pursuant to Section 3.7. “Companies” means all Companies.



          “Company Indemnified Parties” is defined in Section 13.2.



          “Convey” or “Conveyance” is defined in Section 3.7.



          “CPOP” means the number of people within a Market or Markets, as determined by Company
by (i) drive testing a target market with RF signal strength monitoring tools set at -99db, (ii)
mapping all coverage areas registering a signal strength better than -99db, and (iii) then using
population data from a demographic service company to calculate the population within such coverage
areas.



          “Cure Period” is defined in Section 14.6.



          “Defects and Deficiencies”, “Defects or Deficiencies” or “Defective”
or “Deficient” means any one or a combination of the following items or other items of a
substantially similar nature:




          (a) when used with respect to the performance of Services, that such Services are not
provided in a careful and workmanlike manner and in accordance with the Specifications,
using material which is free from defects;




          (b) when used with respect to structures, materials or Products, that such items (i)
are not new and of good quality and free from defects in materials and workmanship, or (ii)
do not conform to the Specifications, or (iii) with respect to Software, that such Software
does not provide the functions and features described in the Specifications; provided,
however, that with respect to materials and Products that are replaced or repaired in
accordance with any warranty or maintenance provisions of this Agreement, such items may be
like-new, refurbished, remanufactured or reconditioned; or




          (c) with respect to all other Work, that the same (i) are not free of defects in
workmanship and materials, or (ii) do not conform to the Specifications.



          “Discontinued Product Notice” is defined in Section 10.1.



          “Discontinued Products” is defined in Section 10.1.



          “Documentation” means the Operating Manuals, the Maintenance and Instruction Manuals,
the Training Manuals, the “as-built” Site parameters and all other documentation necessary for the
operation of the System, any Products or any material part thereof.


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          “Dollars” or “U.S. $” or “$” means the lawful currency of the United
States of America.



          “ECP” means a Vendor-manufactured Executive Cellular Processor installed in any of
Companies’ Systems regardless of the technology supported by such ECP (e.g., analog, and CDMA).



          “EFT” is defined in Section 5.6.



          “Equipment” means all equipment, hardware and other items of tangible personal
property (including, without limitation, any Documentation furnished hereunder in respect thereof)
which are manufactured by or pursuant to Vendor’s specifications and furnished or required to be
furnished by Vendor in accordance with the terms and conditions of this Agreement, including repair
and replacement parts.



          “Equipment Release” means either an Equipment Update or Equipment Upgrade or any
combination thereof as applicable.



          “Equipment Update” means a change or modification in any delivered Equipment which
fixes or otherwise corrects faults, design shortcomings or shortcomings in meeting the
Specifications, corrects bugs or defects, or which is recommended to enhance safety.



          “Equipment Upgrade” means a change or modification or improvement made to Equipment
that improves the performance, capacity and capability of such Equipment. An Equipment Upgrade may
include an Equipment Update.



          “Exhibits” means the exhibits attached to this Agreement, as the same may be modified
or amended from time to time.



          “Existing Markets” means all Markets previously awarded to Vendor and for which
Cricket’s or ANB’s System operates with Vendor’s Products as of the Effective Date of this
Agreement.



          “Expansions” means any additional Products or Services not comprising part of an
Initial System, which may include growth to existing Systems and additional Products and Services.



          “Extension Period” is defined in Section 8.1(e).



          “FCC” means the Federal Communications Commission.


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          “FCC License” means a license for the provision of wireless telecommunications
services or operation of wireless telecommunications systems issued by the FCC.



          “FCC Rules” is defined in Section 6.3.



          “FCC Warranty” is defined in Section 6.3.



          “Final Acceptance” means, with respect to any Initial System the earlier of (i) the
date Cricket signs the Certificate of Final Acceptance, or (ii) the date that is ninety (90)
calendar days after the acceptance of the Certificate of Substantial Completion for the Initial
System unless Cricket has given Vendor notice in writing that the Initial System has not achieved
Final Acceptance.



          “Fit” means physical size or mounting arrangement (for example, electrical or
mechanical connections), or, with respect to Software, physical size and interfaces.



          “Force Majeure” is defined in Section 15.



          “Form” means physical shape.



          “Function” means Product features and performance, or with respect to other items, the
features and performance of such items.



          “Governmental Entity” means the United States federal government or any state or other
political subdivision thereof and any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.



          “Guaranteed Substantial Completion Date” means, with respect to an Initial System, the
date by which Substantial Completion of such Initial System must be achieved by Vendor.



     Notwithstanding the above, the Guaranteed Substantial Completion Date shall be delayed day-for-day
or to a date mutually acceptable to Vendor and Company, acting reasonably, in the event that:




	 	i.	 	Company has not satisfied its obligations, if any, for Site readiness for the
commencement of Vendor’s installation; or
	 
	 	ii.	 	extreme weather and other unusual environmental conditions beyond Vendor’s
reasonable control delays Vendor’s completion of Substantial Completion activities (in
this case the parties agree that the period of delay shall be equal to the period of
time associated with the duration of such extreme or unusual condition(s)); or




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	 	iii.	 	Vendor is not provided with all necessary and reasonable access to the System
and each Site; or
	 
	 	iv.	 	Company or other third party, none of which has direct contract privity with
Vendor, cause delays beyond Vendor’s control or interfere with Vendor’s Work.
	 
	 	v.	 	Company should unilaterally decide, (due to no fault of Vendor, and provided
Vendor is still on schedule to meet Substantial Completion by the Guaranteed
Substantial Completion Date) to Commercially Launch an Initial System prior to
Substantial Completion or the Guaranteed Substantial Completion Date for such Initial
System, creating a situation whereby Vendor has to perform around live traffic and
work around Company’s maintenance window.




Company shall also involve Vendor with establishment of the Guaranteed Substantial Completion Dates
for each Initial System and through all stages of the Site acquisition and readiness process. In
all cases, Company shall be responsible for the provisioning of backhaul facilities required at all
Sites. Such provisioning must be completed prior to the start of equipment integration by the
Vendor at each Site.



Commercial Launch of an Initial System shall trigger the Guaranteed Substantial Completion Date and
acceptance of the Certificate of Substantial Completion for all such Products and Services related
to such Initial System if the minimum Substantial Completion criteria of Section 8.1(c) have been
achieved at the time that Commercial Launch commences. Notwithstanding the foregoing, should
Company Commercially Launch an Initial System prior to the Guaranteed Substantial Completion Date
for such Initial System and (i) Vendor is not, at that time, on schedule for meeting the Guaranteed
Substantial Completion Date, then Vendor shall still be responsible for meeting the Guaranteed
Substantial Completion Date [***]; provided however that an equitable adjustment shall be made in the event Vendor is delayed
or restricted from completing work due to the need to work in maintenance windows; or (ii) Vendor
is, at that time, on schedule for meeting the Guaranteed Substantial Completion Date, then Vendor
shall continue to diligently work toward fulfillment of meeting Substantial Completion by the
Guaranteed Substantial Completion Date; [***].




          “Hazardous Materials” 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





 




			
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Act (49 U.S.C. 1801, et seq.), or a “hazardous substance as defined in the Occupational Safety and
Health Act Communication Standard (29 CFR 1910.1200).




          “Impairment” means any loss or reduction of function, service or performance.



          “Initial Period” is defined in Section 8.1(e).



          “Initial System” means all Products and Services comprising an initial network in a
New Market, as further described in Exhibit R and Exhibit A — AWS Award Summary Tab, that Purchaser
intends, as of the Effective Date of this Agreement, to Commercially Launch.



          “Installation” means the physical Work of installing and power up of Products at the
required Site.



          “Installation and Integration Substantial Completion Certificate” is defined in
Section 8.1(b).



          “Integration” means the interconnectivity and communication of the installed Products
as required for the successful demonstration of Interoperability required for the System to operate
in accordance with the Specifications.



          “Intellectual Property Rights” is defined in Section 13.2.



          “Interoperability” means the ability of the Products to operate with other Products
and to operate with and within a System, all in accordance with the Specifications.



          [***]



          “List Price” means Vendor’s published “network wireless systems price reference
guide” or other price notification releases furnished by Vendor for the purpose of communicating
Vendor’s prices or pricing related information to Vendor’s customers; however this does not include
firm price quotations.



          “Losses” means any claims, demands, suits, proceedings, causes of action, damages,
costs, expenses, liabilities, reasonable attorneys’ fees, and amounts paid in settlement.





 




			
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          “Maintenance and Instruction Manuals” means the manuals prepared by Vendor and
delivered to Cricket pursuant to Section 7.



          “Major Outage” [***]


Notwithstanding the above, any Impairment resulting from Company’s RF design or optimization on an
Initial System shall not be included in the determination of a Major Outage.




          “Market” means a geographic area for which the FCC has issued a license to Company
that allows the Company to provide wireless services.



          “Material Adverse Effect” is defined in Section 22.2(b).



          “Mobile Switching Center” or “MSC” means the controller Products that control
the radio/cellsite equipment.



          “Net Purchase Order Value” means the contract or quoted price less any additional
discounts, incentives or earned credits applied; Taxes, if any, and transportation charges shall be
excluded in this calculation.



          “New Market” means all Markets awarded to Vendor and for which Company’s System
operates with Vendor’s Products after the Effective Date of this Agreement.



          “OEM Equipment” means (i) any items of non-Vendor equipment made available for sale by
Vendor under this Agreement that are not integrated into the Equipment during the manufacturing
process; and (ii) non-Vendor software made available for license under this Agreement that is not
resident on Vendor Equipment; but in each case excluding equipment or software that is
private-labeled by Vendor.



          “Operating Manuals” means the operating and configuration manuals delivered to Cricket
pursuant to Section 7 containing detailed procedures and specifications for the operation of any
System, any Expansions or any part thereof including, but not limited to, BTS manuals and MSC
manuals.



          “Optional Software Features” means Software features for Products available to the
Companies on an optional, separate fee basis as set forth in Exhibit B, Tab 5, starting on line
163.





 




			
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          “PCS” means personal communications services authorized by the Federal Communications
Commission.



          “Person” means an individual, partnership, limited partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Entity or other entity of whatever nature.



          “PMSI” is defined in Section 3.6.



          “Previous Agreement” means the Amended and Restated System Equipment Purchase
Agreement, dated as of June 30, 2000, as amended, between Cricket and Vendor.



          “ProCo” means a wholly owned direct or indirect subsidiary of Cricket which may be
hereafter established as a procurement entity for the Companies under this Agreement.
Incorporation of ProCo into this Agreement shall be effected by an addendum to this Agreement in
the form attached as Exhibit O.



          “Product Change Notice” means a notification issued by Vendor or an Affiliate of
Vendor that the Equipment described in such notification is the subject of a design, material,
production or engineering Defect or Deficiency.



          “Products” means the collective reference to the Equipment and the Software provided
by Vendor under this Agreement.



          “Proprietary Information” is defined in Section 24.18.



          “Punch List” means that list prepared in conjunction with any certificate which
contains one or more immaterial non-service-affecting items which have not been fully completed as
of the date of the accompanying certificate; provided that such incomplete portion of the
Work shall not, during its completion, materially impair the normal daily operation of a System in
accordance with the Specifications.



          “Purchase Commitments” means the AWS Commitment as defined in Section 5.2.1 and the
Technology Evolution Commitment as defined in Section 5.2.2



          “Purchase Order” means a purchase order given specifying the Products, Services or
other items of Work that Vendor is authorized to supply or commence in compliance with the terms of
this Agreement.



          “Purchaser” means any or all entities that submit a Purchase Order hereunder, which
may be Cricket, ProCo, ANB, or another entity as mutually agreed, that has been added to this
Agreement via Exhibit O.


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          “Recurring Services” means maintenance and support Services and Services identified as
Recurring Services in Exhibit H.



          “Related Entities” is defined in Section 2.7.



          “Release” means any release, version, upgrade, update, enhancement, bug fix or other
issuance.



          “RF” means radio frequency.



          “RTU License” is defined in Section 11.1.



          “Services” means the collective reference to all of the services to be furnished by
Vendor as part of the Work, which may include, but may not limited to design, engineering, network
planning, construction, interoperability, supply, delivery, Installation, Integration, testing,
training, repair, maintenance, de-installation and removal, technical and other support services,
and any and all other services to be furnished by Vendor as part of the Work in accordance with the
terms of this Agreement.



          “Site” means the physical location of a System Facility.



          “Software” means (a) the Vendor developed software or software developed pursuant to
Vendor’s specifications and licensed pursuant to the terms of this Agreement, (b) all Releases with
respect to such software, and (c) all Documentation furnished hereunder in respect of clauses (a)
or (b) of this definition.



          “Software Update” means any updates to the Software relating to Vendor’s Warranty and
Software maintenance obligations hereunder or which correct bugs or defects in the Software, or
otherwise to correct shortcomings in the Software.



          “Software Upgrade” means Vendor’s Software Release which is usually made available
once or twice per year, not to be confused with a Software Update. A Software Upgrade is a
Software Release identified by a point release (e.g. 7.0 to 8.0) whereas a Software Update is an
interim Software Release identified by a interim point release (e.g. 7.1 to 7.9, etc.,). A
Software Upgrade may also include Software Updates released since the last Software Upgrade.



          “Source Code” means any version of Software incorporating high level or assembly
language that generally is not directly executable by a processor.



          “Spare Parts” means the additional Equipment for use as spares and replacement
hardware, not included in an Initial System, but which may replace original Equipment within the
System and provided by Vendor.


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          “Specifications” means the collective reference to the product description
documentation and performance standards as set forth in this Agreement and the Exhibits;
provided that (i) the Specifications shall be deemed to include a requirement that all of
the Products shall be reasonably in accordance with ANSI, ITU, and other applicable industry
standards as required for performance of the Products provided hereunder, except when otherwise
stated in a specific Exhibit or otherwise agreed by the parties, and (ii) with respect to Products
for which product descriptions and performance standards are not provided and listed in a specific
Exhibit, the term “Specifications” shall refer to Vendor’s published specifications in respect
thereof, and iii) Product performance and capacity specification limitations are described in
Exhibit L.



          “Standard Discount Price(s)” or “Standard Discount Pricing” means the prices
included in Exhibit A — Pricing Summary Workbook, Standard Discount Table tab so labeled, which
represents Vendor’s discounted price off Vendor’s List Price for Vendor’s Products offered under
this Agreement, prior to any additional discounts or incentives that Vendor may offer to Purchaser,
either under this Agreement or in a separate quote issued under the terms of this Agreement.



          “Subcontractor” means a contractor, vendor, supplier, licensor or other Person that is
not an Affiliate of Vendor or Cricket, having a direct or indirect contract with Vendor or Cricket
or with any other Subcontractor of Vendor or Cricket who has been hired by or for Vendor or Cricket
to assist Vendor or Cricket in the performance of its obligations under this Agreement.



          “Substantial Completion” means the earlier of (i) when Cricket signs the Certificate
of Substantial Completion or (ii) ten (10) calendar days after the receipt by Cricket of such
certificate, provided that Cricket has not in that timeframe provided a written notice of rejection
of such certificate.



          “Support Period” is defined in Section 10.1.



          “System” means the collection of Equipment, Software and Services provided by Vendor
in a defined Market area which allows Purchaser to provide PCS within such defined Market area
(whether or not the collection of Sites and Equipment in such defined Market area includes a
dedicated MSC or uses a remote MSC within another defined Market area) identified by the Purchaser
to the Vendor in writing as collectively comprising a System.



          “System Facility” means the structures, improvements, foundations, towers, and other
facilities necessary to house or hold any related Products and other equipment to be located at a
particular location; and may also be referred to as a “Network Facility” or “network facility.”



          “Taxes” is defined in Section 5.3.


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          “Technology Evolution” means the Products referred to as [***]
product, as described in Exhibit A, and any other Products that may be added.



          “Term” means the period commencing on the Effective Date and ending five (5) years
there from, unless terminated earlier in accordance with the terms and conditions hereof, or unless
extended by the mutual written consent of the parties hereto.



          “Training” is defined in Section 7.4.



          “Vendor” has the meaning set forth in the heading to this Agreement, or any
abbreviation thereof.



          “Vendor Developments” is defined in Section 12.3.1.



          “Warranty” means any one or more of the Products and Services Warranty, Software
Backwards Compatibility Warranty, Equipment Backwards Compatibility Warranty, and FCC Warranty.



          “Warranty Period” means (a) with respect to all Products comprising part of or
furnished with respect to an Initial System (but excluding Expansions), a period of two (2) years
from and after the date of Substantial Completion of such Initial System, provided, however that if
prior to Final Acceptance of such Initial System a Major Outage occurs, such two (2) year period
shall be extended by the number of days elapsed between Substantial Completion of such Initial
System and the date Cricket signs the Certificate of Final Acceptance with respect to such Initial
System; (b) with respect to all Expansions (including Software Releases and Equipment Releases) for
which Vendor provides Installation Services, a period of two (2) years from and after the
successful Installation of such Products, (c) with respect to all Expansions (including Software
Releases and Equipment Releases) for which Vendor does not provide Installation Services, a period
of two (2) years from and after the date of shipment of such Expansions to a Company’s Site, (d)
with respect to Services six (6) months from completion of the Service; and (e) for repaired or
replacement Products the longer of i) six (6) months from the date of replacement or ii) the
remainder of any Warranty Period remaining on the Product replaced.



          “Withdraws” means Vendor or any successor entity to Vendor or Vendor’s Code Division
Multiple Access (“CDMA”) products makes a public announcement or confirmation that it is or
has discontinued sales or support activities in the United States with respect to CDMA products;
provided however, that the term “Withdraw” shall not include any merger or joint venture between
Vendor and a third party if such successor, third party





 




			
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or joint venture continues to engage in sales and support activities in the United States with
respect to Vendor’s CDMA products.




          “Work” means the furnishing of Products and the performance of Services hereunder, and
all other related activities and obligations required to be performed by Vendor pursuant to this
Agreement.



          1.2 Other Definitional Provisions. (a) When used in this Agreement, unless
otherwise specified therein, all terms defined in this Agreement shall have the defined meanings
set forth herein. Terms defined in the Exhibits are deemed to be terms defined herein;
provided that in the case of any terms that are defined both in this Agreement or
an Exhibit, the definitions contained in the main body of this Agreement shall supersede such other
definitions for all purposes of this Agreement; provided further, that definitions
contained in any Exhibit shall control as to such Exhibit.



          (b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in
this Agreement refer to this Agreement as a whole (including Exhibits and schedules) and not to any
particular provision of this Agreement and section, subsection, schedule and exhibit references are
to this Agreement unless otherwise specified. Reference herein to “Section” shall mean any and all
subsections thereof. The word “including” shall also mean “including without limitation.” The
conjunction “or” shall be understood in its inclusive sense (and/or).



          (c) The meanings given to terms defined in this Agreement are applicable to both the singular
and plural forms of such terms. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.



     SECTION 2. SCOPE OF WORK, RESPONSIBILITIES



          2.1 Scope of Work. During the Term, Vendor shall perform all Work in accordance with
Purchase Orders issued to and accepted by Vendor from time to time under this Agreement. Vendor
shall be responsible for providing in accordance with the terms of this Agreement any and all items
and services which are expressly described in this Agreement or in the Exhibits. Vendor shall
furnish all labor, materials, tools, transportation and supplies required, unless otherwise agreed
to in a separate statement of work, to complete its obligations in accordance with this Agreement.


In instances where Purchase Orders are placed by a Purchaser for or on behalf of a Company, such
Purchaser shall be considered the purchaser for purposes of placing all orders, addressing invoices
and the obligation of payment. Cricket agrees to be obligated hereunder with respect to all
payments which become due hereunder with respect to Purchase Orders placed by it or any Purchaser
for or on behalf of any Company, including but not limited to all payments for all Products and
Services. In addition, Cricket, or any



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Purchaser, shall be considered the purchaser for purposes of passage of title and risk of loss with
regard to Products and Software which are delivered by Vendor to any Company under this Agreement.




          2.2 Review of Agreement. Vendor and Cricket have examined in detail and carefully
studied and compared the Agreement with all other information furnished by the other party and has
promptly reported to the other any material errors, inconsistencies or omissions so discovered or
discovered by any of its Subcontractors.



          2.3 Eligibility under Applicable Laws and Applicable Permits. Each Party shall be
responsible for ensuring that they and their Subcontractors are and remain eligible under all
Applicable Laws and Applicable Permits to perform under this Agreement in the various jurisdictions
involved including, to the extent that either party will be responsible for construction for any
particular component of the work, all such construction will be done in accordance with all
applicable Federal Communications Commission requirements. Each party shall be responsible for
obtaining and maintaining in full force and effect the Applicable Permits listed as its
responsibility in the applicable Exhibits.



          2.4 Further Assurances. The parties shall execute and deliver all reasonable further
instruments and documents, and will, in good faith, consider all reasonable requests for further
action, including, but not limited to, assisting each other in filing notices of completion with
the appropriate state and local Governmental Entity that may be necessary or that either party may
reasonably request in order to enable either party to complete performance of the work or to
effectuate the purposes or intent of this Agreement. All such requests shall be addressed pursuant
to the Change Order procedures described below in Section 9.



          2.5 Liens and Other Encumbrances. (a) Vendor covenants and agrees subject to
Vendor’s receipt of full payment in respect thereof to:




               (i) except as provided in Section 3.6, protect and keep free all Systems, Work,
Expansions or any and all interests and estates therein acquired by a Purchaser from
Vendor, and all improvements and materials now or hereafter placed thereon under the terms
of this Agreement, from any and all claims, liens, charges or encumbrances of the nature of
mechanics, labor or materialmen liens or otherwise arising out of or in connection with the
performance by Vendor of this Agreement or any performance by any Vendor Subcontractor, and
to promptly have any such lien released by bond or otherwise; and




               (ii) give notice of this subsection to each Vendor Subcontractor before such Vendor
Subcontractor furnishes any labor or materials for any System.


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          (b) If any laborers’, materialmen’s, mechanics’, or other similar lien or claim thereof is
filed by any Vendor Subcontractor, Vendor shall use reasonably commercial efforts to cause such
lien to be satisfied or otherwise discharged, or shall file a bond in form and substance
satisfactory to Cricket in lieu thereof within ten (10) Business Days of Vendor’s receipt of notice
of such filing. If any such lien is filed or otherwise imposed, and Vendor does not cause such
lien to be released and discharged forthwith, or file a bond in lieu thereof, then, without
limiting any Company’s available remedies, any Purchaser 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 such Purchaser’s satisfaction, and to retain such funds from any payment then
due or thereafter to become due to Vendor.



          (c) Cricket and each other Company reserves the right to post or place within any System
notices of non-responsibility or to do any other act required by Applicable Law, to exempt such
Company from any liability to third parties by reason of any work or improvements to be performed
or furnished hereunder; provided that failure by any such Company to do so shall
not release or discharge Vendor from any of its obligations hereunder.



          2.6 Duty To Inform Itself Fully; Waiver of Defense. Each party shall be deemed to
have notice of and to have fully examined and approved the Specifications, the Exhibits and all
other documents referred to herein, and all drawings, specifications, schedules, terms and
conditions of this Agreement, regulations and other information in relation to this Agreement or
any amendments, modifications or supplements thereto at all times on or after the Effective Date
and to have fully examined, understood and satisfied itself as to all information of which it is
aware and which is relevant as to the risks, contingencies and other circumstances which could
affect this Agreement and in particular the Installation of any System or any part thereof.



          2.7 Joint Ventures and Designated Entities. Any Company may from time to time invest
in or provide management services to joint ventures and other third parties that hold licenses from
the FCC or that are engaged in the build-out or operation of wireless systems (such third parties,
including other entities that qualify as a “Designated Entity,” “Entrepreneur,” Small Business” or
“Very Small Business” under FCC Rules, being “Related Entities”). Vendor agrees, at
Cricket’s request, to promptly enter into one or more agreements with each Related Entity for the
provision of equipment, software and services to such Related Entity on substantially the same
terms and conditions as set forth in this Agreement, provided such Related Entity is not a
competitor or an affiliate of a competitor of Vendor in the business of manufacturing, installing
or selling telecommunication products to services providers.



     SECTION 3. PURCHASE ORDERS AND SCHEDULES


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          3.1 Purchase Orders. All Purchase Orders under this Agreement shall be submitted by
a Purchaser. Each Purchaser may deliver Purchase Orders to Vendor at any time and from time to
time during the Term. Such Purchase Orders shall be sent to Vendor either by certified mail,
electronic transmission or another mutually acceptable manner. Purchaser and Vendor agree to use
electronic data interchange to the maximum extent reasonably possible. For any Purchase Order sent
by mail the following address shall be used:



Lucent Technologies Inc.

Attention — Order Management

800 Northpoint Parkway

Alpharetta, GA 30005



As of the Effective Date of this Agreement, Order Management contacts located at 800 Northpoint
Parkway are [***]. Both are located at 800 Northpoint Parkway in Alpharetta, GA 30005.



All Purchase Orders shall be governed by the terms and conditions of this Agreement, unless
otherwise agreed by the parties in writing. Each Purchase Order shall reference this Agreement and
specify, in reasonable detail, the Products, Services or other items of Work to be provided by
Vendor. All Purchase Orders shall be deemed to incorporate and be subject to the terms and
conditions of this Agreement unless otherwise agreed in writing. All Purchase Orders, including
electronic orders, shall contain the information necessary for Vendor to fulfill the order. Vendor
shall use commercially reasonable efforts to comply with all purchasing requirements set forth in
Exhibit C. No provision or data on any Purchase Order or any Vendor order acknowledgment, or
contained in any documents attached to or referenced in the Purchase Order or order acknowledgment
or any subordinate document (such as shipping releases), which is inconsistent with the terms of
this Agreement shall be binding, except data necessary for Vendor to fill the order.




          3.2 Delivery under the Agreement. Vendor shall complete the Work specified in each
Purchase Order in accordance with the terms and conditions of this Agreement.



          3.3 Order Acceptance. All Purchase Orders shall be subject to Vendor’s acceptance,
provided that (a) Vendor may not reject any Purchase Orders placed in accordance with the terms of
this Agreement and the agreed upon lead times for Products, and (b) any Purchase Order issued by a
Purchaser and not properly rejected in writing within ten (10) Business Days of the transmission of
such Purchase Order to Vendor shall be deemed accepted by Vendor. Electronic Purchase Orders shall
be binding on the





 




			
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submitting Purchaser and Vendor notwithstanding the absence of a signature, provided that the
parties have implemented a mutually acceptable electronic order process and such orders deemed to
be binding have been issued by a Purchaser and accepted by Vendor in accordance with the process
agreed upon by the parties. Notwithstanding anything contained herein, should Purchaser
consistently be in breach of the payment provisions or other material aspects of this Agreement,
and such breach has not been cured within a reasonable cure period; Vendor may place Purchase
Orders previously accepted on hold and/or reject Purchase Orders. Vendor will use commercially
reasonable judgment in exercising this right.




          Changes made by a Purchaser to an accepted Purchase Order that affect Vendor’s ability to meet
its obligations under the Purchase Order, any price, shipment date, or completion date quoted by
Vendor with respect to such Purchase Order is subject to change and shall be addressed pursuant to
the Change Order provisions below in Section 9.



          3.4 Forecasts. Purchaser shall provide to Vendor periodic (as mutually agreed to)
forecasts of Purchaser’s projected Product and Services needs. If the quantities ordered are more
than 25% greater than forecast quantities when viewed on a monthly basis by Product mix, Vendor
shall be permitted a reasonable extension of time to fulfill such orders and in such event
[***] shall not apply.



          3.5 Inventory Control and Bar-coding. Vendor shall, at no additional charge, pack
and mark shipping containers in accordance with its standard practices for domestic shipments.
Vendor shall (a) enclose a packing memorandum with each shipment and, if the shipment contains more
than one package, identify the package containing the memorandum, and (b) mark Products as
applicable for identification in accordance with Vendor’s marking specifications (for example,
model/serial number and month, year of manufacture).



          3.6 Purchase Money Security Interest. Each Purchaser hereby grants to Vendor a
purchase money security interest (“PMSI”) on and in each item of Equipment purchased by
such Purchaser from Vendor hereunder until such time as Vendor receives payment in full in
accordance with this Agreement for such Equipment. Accordingly, the applicable PMSI and all
related liens on a given item of Equipment purchased hereunder shall be deemed automatically
released in full by Vendor upon Vendor’s receipt of payment for such item of Equipment, and no PMSI
shall attach to any item of Equipment purchased hereunder for which Vendor has received full
payment in advance. Vendor shall, at Vendor’s expenses execute, deliver and file any documents,
instruments and certificates reasonably requested by any Purchaser in order to evidence the release
of the PMSI and the removal of any related liens.





 




			
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          3.7 Conveyance of Equipment. Vendor acknowledges and agrees that (a) a Purchaser
may, and each other Company may sell, transfer, assign, lease, transfer licenses, or convey
(“Convey” or “Conveyance”) Products to any of such Purchaser’s Affiliates, with the
transfer of any RTU License being subject to the terms of Section 11.4 hereof, and (b) any owner of
any used Equipment may Convey such Equipment to any third party.



     SECTION 4 SUBCONTRACTORS



          4.1 Subcontractors. Vendor may subcontract any portion of its obligations under this
Agreement, but no such subcontract shall relieve Vendor from primary responsibility and liability
for the performance of Vendor’s covenants and obligations under this Agreement. Regardless of
whether or not Vendor obtains approval with respect to use of a Subcontractor or whether Vendor
uses a Subcontractor recommended by other party hereunder, use by Vendor of a Subcontractor shall
not, under any circumstances: (i) give rise to any claim by Vendor against any Company if such
Subcontractor breaches its subcontract or contract with Vendor; (ii) give rise to any claim by such
Subcontractor against any Company; (iii) create any contractual obligation by any Company to the
Subcontractor; (iv) give rise to a waiver by the Purchaser of its rights to reject any Defects or
Deficiencies or Defective Work; or (v) in any way release Vendor from being solely responsible for
the Work to be performed under this Agreement.



          4.2 Vendor’s Liability. Vendor is responsible for all of its obligations under this
Agreement, including the Work, regardless of whether a subcontract or supply agreement is made or
whether Vendor relies upon any Subcontractor to any extent, unless such reliance was on a Company
Subcontractor. Vendor’s use of Subcontractors for any of the Work shall in no way increase
Vendor’s rights or diminish Vendor’s liabilities under this Agreement, and in all events, except as
otherwise expressly provided for herein, Vendor’s rights and liabilities hereunder shall be as
though Vendor had itself performed such Work. Vendor shall be liable for any delays caused by any
Subcontractor as if such delays were caused by Vendor.



          4.3 No Effect of Inconsistent Terms in Subcontracts. The terms of this Agreement
shall in all events be binding upon Vendor and Companies regardless of and without regard to the
existence of any inconsistent terms in any agreement between Vendor and any Vendor Subcontractor or
whether or not and without regard to the fact that any other party hereunder may have directly or
indirectly had notice of any such inconsistent term.



          4.4 Assignability of Subcontracts to Cricket. Upon written request by Cricket,
Vendor shall use commercially reasonable efforts to have specific agreements between Vendor and a
Vendor Subcontractor executed specifically for Work and/or services to be performed by such Vendor
Subcontractor on behalf of Vendor in support of this Agreement between Vendor and Cricket to
contain a provision stating that, in the event that


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Vendor is terminated for cause, abandonment of this Agreement or material breach, (i) such Vendor
Subcontractor shall continue its portion of the Work as agreed upon in the agreement between Vendor
and such Vendor Subcontractor and as may be agreed upon by Cricket and such Vendor Subcontractor;
(ii) such agreement may be assumed without penalty to Cricket and, iii) in order to create security
interests, may be assigned by Cricket to third parties designated by Cricket, in either case, at
the option of Cricket and for the same price and under the same terms and conditions as originally
specified in such Subcontractor’s agreement with Vendor.



          4.5 Removal of Subcontractor or Subcontractor’s Personnel. Cricket has the right at
any time to request removal of a Subcontractor or any of a Subcontractor’s personnel from Work on
the System upon reasonable grounds and reasonable prior notice to Vendor. Such request (a
“Request for Removal”) shall be in writing and shall specify Cricket’s reasoning therefor.
Vendor promptly shall issue a written response to any such Request for Removal, specifying the
reasoning for its disagreement or agreement, as the case may be, with the reasoning contained in
the Request for Removal. If the parties fail to agree, this matter shall be handled in accordance
with the dispute resolution procedures in Section 21. The exercise of such right by Cricket shall
have no effect on the provisions of Sections 4.1 and 4.2.



          4.6 Subcontractor Insurance. Vendor shall require its Subcontractors to obtain,
maintain and keep in force, during the time they are engaged in providing Products and Services
hereunder, insurance coverage as set forth on Exhibit E-2 (provided that the maintenance of any
such Subcontractor insurance shall not relieve Vendor of its other obligations pursuant to this
Agreement). Vendor shall, upon Cricket’s request, furnish Cricket with evidence of such insurance
in form and substance reasonably satisfactory to Cricket.



          4.7 Review and Approval not Relief of Vendor Liability. No inspection, review or
approval by any Company permitted under this Agreement of any portion of the Work shall relieve
Vendor of any duties, liabilities or obligations under this Agreement, but nothing contained in
this Section shall be deemed a bar of any waiver given to Vendor pursuant to and in accordance with
the terms of this Agreement.



          4.8 Subcontractor Warranties. Except as otherwise expressly provided in Section 16,
all warranties of Vendor in this Agreement shall be deemed to apply to all Services performed by
any Subcontractor as though Vendor had itself performed such Work.



          4.9 Payment of Subcontractors. Vendor shall make all payments that it is
contractually required to make to all Vendor Subcontractors (except in the case of legitimate
disputes between Vendor and any such Subcontractor arising out of the agreement between Vendor and
such Subcontractor) in accordance with the respective agreements between Vendor and its
Subcontractors such that no Vendor Subcontractor shall be in a position to


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enforce any liens or other rights against any Company, the System, any Products or any part
thereof.



          4.10 Copies. Subject to any confidentiality obligations required by third party
providers, including Subcontractors, Vendor will use its good faith, reasonable efforts to provide
Cricket with any and all relevant agreements, understandings, subcontracts and other documents
pertaining to the provision of Products or Services by a Subcontractor which the Companies may
reasonably require in writing in order for them to be provided with the information necessary to
exercise any of their rights under this Agreement. Such request must be made in writing pursuant
to the Notices provisions of this Agreement.



          4.11 Benefit of Subcontracts. In addition to anything else provided for in this
Agreement, upon Cricket’s written request specific to any third-party vendors of Vendor or Vendors
Subcontractors, Vendor shall use commercially reasonable means that allow Cricket to the following
benefits and rights of Vendor under its contracts with any applicable third-party vendors or other
Subcontractors: all rights to conduct in-house tests, to receive notice of upgrades and
enhancements and to purchase spare parts; provided however, that Vendor shall
maintain sole responsibility for all obligations and duties under all such contracts and that
Vendor will not be required to violate any terms in existing agreements.



     SECTION 5. PRICES AND PAYMENT



          5.1 Prices. (a) The prices for the Products, Services and other items of Work are
set forth in Exhibit A — Pricing Summary Workbook and Pricing Summary Notes. The prices for all
Products, Services and Systems set forth in the Exhibits include all features, functions and
services required for the proper functionality of such Products, Services and Systems in accordance
with the Specifications. Vendor shall provide orderable quotes to Purchaser based on the
configuration information provided by Purchaser. Such quotes shall be at the prices set forth in
the Exhibits, unless otherwise mutually agreed. Notwithstanding any other provision of this
Agreement, the prices, including all pricing notes per Exhibit A are conditioned upon Purchaser
meeting the Purchase Commitments, as such are defined in Subsection 5.2 below.



          5.1.1 Functionally Accurate Quotes. To ensure the accuracy and completeness of Vendor
quotes, Vendor will provide “Functionally Accurate Quotes”. To assist in this process, Purchaser
will (i) participate (usually telephonically) in a Functionally Accurate Quote preliminary meeting
to discuss the Purchaser-requested configurations, scope and responsibilities of the parties for
each quote, (ii) participate (usually telephonically) in a second meeting to discuss a preliminary
quote and a reasonable Customer Input Questionnaire (CIQ), and (iii) accurately complete and
provide the CIQ and any other reasonably requested information to Vendor. Upon completion of the
proceeding, Vendor shall issue a Functionally Accurate Quote to


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Purchaser. Purchaser shall review all Functionally Accurate Quotes, prior to Purchaser’s issuance
of a corresponding Purchase Order. If Purchaser subsequently places a Purchase Order with respect
to such Functionally Accurate Quote, and in connection with fulfilling such Purchase Order it is
later determined by Purchaser or Vendor that Products or Services were excluded that otherwise
would be required to achieve all the functionality set forth in such Functionally Accurate Quote,
then Vendor shall provide to Purchaser, at no additional cost, all additional Products and
Services that are not included in such Purchase Order but that are necessary to achieve all of the
functionalities set forth in such Functionally Accurate Quote, provided Vendor, being in the
business of providing said Products and Services for its telecommunications customers, should have
known such Products and/or Services would be required in order to produce a Functionally Accurate
Quote.


Purchaser shall use commercially reasonable judgment with respect to the frequency of requesting
use of the Functionally Accurate Quote process.




          5.2 Purchase Commitments.



          5.2.1
AWS Commitment. Cricket agrees that on or prior to the third
(3rd) anniversary of the Effective Date  of this Agreement
(as extended pursuant to Section 5.2.5, with such date, as may be extended, being the
“AWS Satisfaction Date”), Purchasers, in the aggregate, will place Purchase Orders to purchase AWS
Initial Systems with an aggregate Net Purchase Order Value of not less than ninety-five million seven hundred fifty thousand dollars ($95,750,000) (such commitment,
subject to reduction pursuant to Section 5.2.5, being the “AWS Commitment”). Vendor agrees that
any Expansions purchased by Purchasers will also be counted towards fulfillment of such AWS
Commitment. In the event that the AWS Commitment is not satisfied on or prior to the AWS
Satisfaction Date, Vendor will be entitled to invoice Cricket for certain incentives, in accordance
with the calculations in Exhibit A.



          5.2.2
Technology Evolution Commitment. Cricket agrees that on or
prior to the third (3rd) anniversary of the Effective Date
of this Agreement, Purchasers, in the aggregate, will place Purchase Orders with an aggregate Net Purchase Order Value
of not less than thirty million seven hundred thousand dollars ($30,700,000) to purchase Technology Evolution for Existing Markets and the [***] products
for any Markets (the “Technology Evolution Commitment”). Purchases of Services will not be counted
towards fulfillment of the Technology Evolution Commitment. Additional Products may be added to
the list of items which will be included towards the satisfaction of the Technology Evolution
Commitment. In the event that the Technology Evolution Commitment is not satisfied on or prior to the
third (3rd) anniversary of the Effective Date of this Agreement, Vendor will be entitled to invoice Cricket for certain incentives, in accordance with the
calculations in Exhibit A.





 




			
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          5.2.3 Multiple Switch Markets. In the event that the Technology Evolution Commitment
is satisfied in full but [***] or more of the AWS Commitment is not satisfied on or prior to the
AWS Satisfaction Date, then Vendor may invoice Cricket for [***] as described in Exhibit A. In the
event that the Technology Evolution Commitment is not satisfied in full on or prior to the third
(3rd) anniversary of the Effective Date  of this Agreement,
regardless of the fulfillment of the AWS Commitment, then Vendor may invoice Cricket for [***].



          5.2.4 Initial System versus Expansion Pricing. Notwithstanding anything contained
herein, all Purchase Order(s) issued by Purchaser on or prior to the time of Commercial Launch of
an Initial System, shall be at the Initial System pricing per Exhibit A, including additional
discounts, incentives and earned credits, provided that (i) Purchaser does not subsequently cancel
or otherwise terminate such Purchase Order(s), unless such cancellation or termination is pursuant
to Subsection 22.2 “Vendor Events of Default,” and (ii) if such Purchase Orders contain delivery
dates for Products beyond [***] after Commercial Launch of such Initial System, then those Products
with delivery dates beyond [***] after Commercial Launch of such Initial System shall not be
eligible for Initial System pricing per Exhibit A. All Products for which a Purchase Order has not
been issued by Purchaser on or prior to the time of Commercial Launch of an Initial System or which
fall under (i) or (ii) above, shall be considered for all purposes of this Agreement, including
without limitation pricing, to be Expansions.



          5.2.5 Spectrum Clearing Considerations. Should delays occur in existing spectrum
being cleared, which delays are caused by governmental agencies or third-party owners or licensees
of the existing spectrum, that prevent Purchaser from satisfying the AWS Commitment by the
third
(3rd) anniversary of the Effective Date  of this Agreement, Vendor will extend such time period for Purchaser to satisfy the AWS Commitment by an
additional two (2) years or such other extension as may be mutually agreed to by Cricket and Vendor.
During the extension period (the 4th or 5th year of this Agreement) should spectrum be cleared, Company shall take
prompt action (within the longer of (i) the five (5) year
period, (ii) eighteen (18) months after such spectrum is
cleared, or (iii) as reasonably required to complete the build-out of the New Markets otherwise
delayed, provided such delays are not solely related to the actions or inactions of Company) to
build out New Markets otherwise delayed due to delays caused by governmental agencies or
third-party owners or licensees of the existing spectrum. Notwithstanding the preceding, should
spectrum not be cleared for specific New Markets solely due to delays caused by governmental
agencies or third-party owners or licensees of the existing spectrum
by the fifth (5th) anniversary of the Effective Date of this Agreement, Purchaser shall
[***]. The Technology Evolution Commitment shall not be affected by any delays in spectrum
clearing described in this Subsection 5.2.5.





 




			
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          5.2.6 Market Protection. No Company that (i) owns or operates Existing Markets, or
(ii) will own or operate New Markets built out under this Agreement, shall during the Term of this
Agreement, including any extension thereof, replace Vendor’s Products for which Purchaser has
previously issued Purchase Orders to Vendor with any of Vendor’s competitors’ products, without
first providing Vendor a first right to meet such Company’s requirements with an offer to provide
Products and Services with equivalent functionality and economic value compared to that of Vendor’s
competitors’ products.



          5.2.7 Additional Service Opportunities. Cricket and Vendor acknowledge that Cricket
will award to Vendor under a separate agreement a limited number of Sites for which Vendor shall
perform Site development services in order to prove Vendor’s competencies. Upon Cricket’s
acceptance of the notice of completion for the last of the limited Sites, Vendor shall be
considered a qualified Site development contractor. Then, subject to competitive services pricing,
terms, and availability of qualified Vendor resources, Purchaser shall award to Vendor under a
separate agreement, as mutually agreed to by the parties, Site development services valued at
[***].



          5.2.8 BHCA Program Modification. The parties agree that any Busy Hour Call Attempt
(“BHCA”) RTU License fees due under Section 11 of Amendment No. 2 of the Previous Agreement are
hereby made subject to recalculation pursuant to the terms set forth in this Agreement. [***].



          5.3 Taxes. Purchaser shall be liable for and shall pay either to the proper taxing
authority or reimburse Vendor, as required for all state and local sales and use taxes or other
similar transfer taxes in the nature of sales or use taxes (“Taxes”) add back and pursuant to state
law, plus any interest and penalties thereon, attributable to purchases of Products and Services
under the Agreement; provided, however, that to the extent any penalties related to
delinquent taxes arise solely as a result of Vendor’s failure to collect and remit the taxes from
Purchaser on a timely basis, and such failure was not a result of any request in writing by
Purchaser to Vendor not to collect the taxes for any reason, Purchaser shall not be liable for such
penalties but shall at all times remain liable for the underlying tax and interest accrued thereon
except if Purchaser has made payment to Vendor for the invoiced sales tax and Vendor does not remit
to the Governmental Entity. Vendor shall bill such tax related amounts to Purchaser separately
stating the amount on the applicable invoice. Vendor shall not bill to or otherwise attempt to
collect from Purchaser any tax, interest and penalties with respect to which Purchaser has provided
Vendor with an exemption certificate prepared in accordance with applicable law or a direct pay
permit validly issued by a taxing authority. Purchaser and Vendor agree to fully cooperate with
each other as well as any Governmental Entity in resolving any Tax





 




			
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issues that may arise. If the Purchaser shall pay Taxes to Vendor for which the Vendor files
and remits to a governmental taxing authority and Vendor later receives a Tax credit from the
taxing governmental authority with respect to such Taxes, then the Vendor shall credit to the
Purchaser in cash an amount equal to such Tax credit. The amount of such credit will be applied
against future Vendor invoices after the assessment of normal Tax due on such invoice(s) based on
the invoiced amount prior to such Tax credit unless (i) this Agreement will terminate or expire
within sixty (60) days after such Tax credit accrues, or (ii) no Purchaser has placed any Purchase
Order within ninety (90) days prior to the date such Tax credit accrues. In either event Vendor
shall promptly refund to Purchaser an amount in cash equal to such Tax credit.




          5.4 Invoicing and Payment. Payment for the Products and Services to be
supplied pursuant to this Agreement shall occur as follows (in each case following the Purchaser’s
receipt of an invoice by Vendor which shall properly document, to the reasonable satisfaction of
the Purchaser, all the items included):



          (a) Products Ordered Requiring Vendor Installation. For all Products ordered by
Purchaser for which Vendor will i) perform Installation Services and ii) first ship such Products
to a Lucent staging center (“LSC”) prior to being shipped to the final Site designated by
Purchaser, Vendor shall invoice Purchaser for such Products at the point in time when such Products
are delivered to the Site. Notwithstanding anything contained herein, provided such Products are
ready to ship to the Site and should the Site not be ready to receive the Products for installation
by the dates agreed to by the Parties due to Purchaser, Purchaser’s Subcontractor, or other third
party (other than third parties performing services or providing products on behalf of Vendor) not
completing their respective obligations as to Site readiness (e.g. Site security or other
pre-installation requirements not being completed by the scheduled date for installation) by the
installation date agreed to by the Parties, then Vendor may at its option, then invoice Purchaser
for such Products based on the scheduled installation date. Vendor will use commercially
reasonable judgment in exercising this option.



          (b) Products Ordered Not Requiring Vendor Installation. For all Products ordered by
Purchaser i) not requiring installation by Vendor or ii) not first shipped to the LSC, but shipped
directly to the Site or other Company location, Vendor shall invoice Purchaser when such Products
are delivered to the Site.



          (c) Services Invoicing. All Services other than Recurring Services shall be invoiced
as such Services are completed, unless otherwise agreed to in the governing statement of work for
such Services. For purposes of Installation and/or Integration related to an individual BTS or MSC,
such Services will be considered performed upon Vendor’s issuance of the Installation and
Integration Substantial Completion Certificate.



          (d) Recurring Services Invoicing. Recurring Services shall be invoiced consistent
with the provisions of the governing statement of work for such Services, or, if


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there are no such governing provisions, shall be invoiced quarterly in advance of the Services
being performed.



          (e) Payment of Invoices. Each invoice shall be due and payable thirty (30) days
after receipt by the Purchaser of a true, accurate and complete invoice, unless and to the extent
the amount in question is disputed. If any portion of an amount due to Vendor is subject to a bona
fide dispute, the Purchaser will pay to Vendor on or before the date such amount is due all amounts
not disputed. Delinquent payments are subject to a late payment charge after thirty (30) days at
the rate of one and one-half percent (1 1/2%) per month, or portion thereof, of the amount due (but
not to exceed the maximum lawful rate). Any disputed items which are later determined to be valid
are due for payment based upon the original invoice date. No interest will be charged during the
period of time such item is in dispute, provided such disputed items are for commercially valid
reasons.



          5.5 No Payment in Event of Material Breach. Notwithstanding any other provision
herein to the contrary, no Purchaser shall have any obligation to make any payment for any Work,
where such Work may be related to a material breach claim by Purchaser until and unless such breach
is cured or waived in accordance with the terms of this Agreement. In the event of any such
dispute, such dispute shall be decided pursuant to the provisions of Section 21 and any related
payment obligations shall be suspended until the dispute is resolved.



          5.6 Currency and Place of Payment. Payments under this Agreement shall be made in US
dollars and if such method of payment is acceptable to the Purchaser, the Purchaser shall pay all
amounts due Vendor hereunder using Electronic Funds Transfer (“EFT”). EFT payments by a Purchaser
shall be made to such account as is designated by Vendor in writing.



          Customer will EFT funds to the following location:


J.P. Morgan Chase Bank

New York, New York

Lucent Technologies Inc.

ACCT. 910144-9099

ABA 021000021




     SECTION 6. SERVICES



          6.1 Transportation. Vendor shall arrange and provide for the transportation and
delivery of all the Products to be delivered pursuant to, and in accordance with, each Purchase
Order and the terms of this Agreement. Vendor will be responsible for delivery of all Products to
Purchaser’s initial specified location. The costs of such transportation shall be pre-paid by
Vendor and invoiced to Purchaser as a separate line item (freight charges shall exclude any
recovery for Vendor insurance). In the event of any unusual Site selections



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or requirements which require transportation arrangements out of the ordinary course having
regard to normal industry standards and practices (such as crane requirements, helicopter
transportation requirements to a remote setting, etc.), Vendor shall arrange, subject to the
Purchaser’s prior approval, for such exceptional transportation requirements from local staging
facilities or warehouse locations to the unusual Site. Vendor shall notify the Purchaser that it
believes, in good faith, that exceptional transportation arrangements are necessary in the
circumstances, and Vendor will consult with the Purchaser on an approved course of action to
complete delivery. The Purchaser shall be responsible for all costs with respect to such
exceptional transportation requirements in excess of transportation costs applicable to a standard
Site.




          6.2 Services. Vendor shall provide the Services ordered by a Purchaser in accordance
with the provisions of the Exhibits in respect of such Services. The prices for each of the
Services set forth in the Exhibits, including supplemental statements of work, are specifically for
those Services set forth in the Exhibits except to the extent expressly excluded in the respective
Exhibit describing the Services. Should any Services required be neither specifically included nor
excluded from an Exhibit, the parties will work in good faith to provide such Services in an
equitable manner via a Change Order.



          6.3 No Interference. Vendor shall install all Equipment and build each of the
Systems so as to cause no unauthorized interference with or obstruction to lands and thoroughfares
or rights of way on or near which the installation work may be performed. Vendor shall exercise
every reasonable safeguard to avoid damage to existing facilities, and if repairs or new
construction are required in order to replace facilities damaged by Vendor due to its negligence or
willful misconduct, such repairs or new construction shall be at Vendor’s sole cost and expense.
Vendor understands that many of the Sites may be co-located with other RF transmission facilities
and Vendor shall take all necessary precautions and safety measures to ensure the safety of all of
Vendor’s and Vendor’s Subcontractors’ personnel at such Sites. Purchaser shall use its reasonable
best efforts to ensure that no other third parties employed or engaged by Purchaser hinders or
delays the Vendor in the performance of its obligations hereunder, including the provision of
Services. The parties will address any such hindrance or delay pursuant to the change order process
outlined in this Agreement.



          Vendor represents and warrants that all Products furnished hereunder shall comply, to the
extent required, with the requirements of the Federal Communication Commission’s Rules and
Regulations (the “FCC Rules”) pertaining to Commercial Mobile Radio Service providers and
equipment manufacturers in effect as of the date of delivery of such Product to the Purchaser,
including Parts 24 and 27 of the FCC Rules. In addition, Vendor represents and warrants that each
Product furnished hereunder shall comply, to the extent required, with (i) the requirements of Part
15 of the FCC Rules in effect as of the date of delivery of such Product to the Purchaser and (ii)
Part 20 of the FCC Rules in effect as of the date of delivery of such Product to the Purchaser.
Vendor makes no undertaking with respect to the foregoing paragraph in relation to harmful
interference caused by (i)



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unauthorized installation, repair, modification or change or Products not furnished by Vendor; (ii)
Products being subject to misuse, neglect, accident or abuse by other than Vendor; (iii) Products
being used in a manner not in accordance with the applicable operating instructions. Vendor
assumes no responsibility under this clause for items not specified or supplied by Vendor. The
foregoing warranties are collectively referred to as the “FCC Warranty”.



Vendor shall, when appropriate, have reasonable access to each Company’s premises during normal
business hours and at such other times as may be agreed upon by the parties in order to enable
Vendor to perform its obligations under this Agreement. Vendor shall coordinate such access with
the Company’s designated representative prior to visiting such premises. Vendor agrees to instruct
its employees to comply with all site rules while on a Company’s premises. The employees and
agents of Vendor shall, while on any Company’s premises, comply with all site rules and guidelines
including, but not limited to, where required by government regulations. No party shall require
waivers or releases of any personal rights from representatives of the other in connection with
visits to its premises, and no such releases or waivers shall be pleaded by any party in any action
or proceeding.




          For purposes of this Section, all references to “Company’s premises” and other similar
references shall be deemed to refer to any location where a Site is to be located, which may
include land or buildings owned or leased by any Company. To the extent that a Company does not
own the premises, Vendor’s obligations to adhere to site rules and guidelines shall include,
without limitation, those rules and guidelines required by the owner, landlord or property manager
having care and control of such premises, which the Company has provided to Vendor in advance of
the commencement of the applicable Work hereunder.



     SECTION 7. MANUALS, ENGINEERING DRAWINGS AND TRAINING



          7.1 Documentation. Vendor shall provide the Documentation listed in Exhibit F. The
Documentation shall be prepared in accordance with the relevant Specifications. Operating Manuals
with up-to-date drawings, specifications and design sheets shall be available for the Training as
set forth in Section 7.4. Documentation will also include any building, room layout and
environmental requirements for the Equipment. Product “as built” documentation will not be
provided.



          7.2 Standards for Manuals. All Operating Manuals and Maintenance and Instruction
Manuals required to be provided by Vendor pursuant to this Agreement shall be accurate, in the
English language and shall be:




     (a) detailed and comprehensive and prepared in conformance with the Specifications
and generally accepted national standards of professional care, skill,



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diligence and competence applicable to telecommunications and operation practices for
facilities similar to the Systems;




     (b) consistent with good quality industry operating practices for operating wireless
communications systems of similar size, type and design;




     (c) sufficient to enable the Companies to operate and maintain each System on a
continuous basis; and




     (d) prepared subject to the foregoing standards with the goal of achieving operation
of each System at the capacity, efficiency, reliability, safety and maintainability levels
contemplated by this Agreement and required by all Applicable Laws and Applicable Permits.




          7.3 Equipment and Data. Vendor shall furnish all drawings, specifications, specific
design data, preliminary arrangements and outline drawings of the Equipment and all other
information as required in accordance with this Agreement in sufficient detail to indicate that the
Equipment and fabricated materials to be supplied under this Agreement comply with the
Specifications.




          7.4 Training. As more fully described in Exhibit G, Vendor shall provide to the
Companies a training program with respect to all Products and Services provided hereunder
(collectively, the “Training”). Promptly upon execution of this Agreement, Vendor shall
establish a training coordinator, whose responsibility shall be to work with Cricket to ensure that
the Companies receive the Training. Such coordinator (or his or her replacement) shall continue in
such assignment until the receipt of all of the Training required to be provided. All Training
shall be provided by Vendor in the United States except as otherwise agreed to in writing by
Cricket. .




          7.4.1 Training Incentives. At no additional charge, Vendor shall provide to Purchaser
for use by any Company person training days in accordance with the following table:



	 	 	 	 	 
	 	 	No. of CPOPs Covered	 	 
	 	 	by Purchase Orders	 	Number of Person Training Days
	 
	 	 	 	 
	 

	 	[***]
	 	[***]







          The first 125 training days will be made available upon execution of this Agreement.





 




			
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          7.5 Manuals and Training. The Training and the Documentation provided in connection
herewith, including, without limitation, all Documentation provided in CD-ROM format and all
documentation provided pursuant to Sections 7.2, 7.3 and 7.4 shall be updated in reasonable
quantities at no additional cost to the Companies pursuant to and in accordance with all Product
upgrades or modifications applicable to any Work or any part thereof.



     SECTION 8. ACCEPTANCE PROCEDURES



          8.1 Acceptance Procedures With Respect to Initial Systems. Depending upon the
specific Products and Services to be furnished by Vendor, and those tasks for which the Companies
shall assume responsibility, the parties, directly or through third-party vendors or other
Subcontractors, as the case may be, shall carry out the following procedures with respect to
Initial Systems.



          (a) Factory Tests. Cricket may, at Cricket’s option and cost, be present at factory
testing of Products conducted by Vendor. Upon request, Vendor shall give Cricket ten (10) Business
Days advance notice of any such factory testing relating to the types of Products or Services
furnished by Vendor hereunder. Vendor shall cooperate with Cricket to facilitate Cricket’s
observation of such tests. Regardless of whether or not Cricket observes any factory testing,
Vendor agrees to, within a reasonable period of time in view of the nature and urgency of the
request, upon written request by Cricket, provide Cricket with copies of all documentation relating
to factory testing of the Product specified by Cricket, including without limitation copies of test
procedures, test results and FCC compliance certifications, provided such does not require Vendor
to violate any agreements with its supplier or Subcontractors.



          (b) Installation and Integration Substantial Completion Certificate. Upon completion
of the Installation of a BTS and/or a MSC and the completion of Integration activities in
accordance with this Agreement, Vendor shall issue a certificate for each BTS or MSC certifying
that all Installation and Integration activities specified in the Purchase Order specific to each
BTS and MSC are substantially complete (“Installation and Integration Substantial Completion
Certificate”). Such certificate shall be accompanied by a Punch List of all incomplete items
which items shall be completed by Vendor prior to Final Acceptance. Such Installation and
Integration Substantial Completion Certificate shall be deemed accepted unless notified in writing
by Cricket otherwise within ten (10) calendar days of receipt.



          (c) Certificate of Substantial Completion. Upon completion of all Installation and
Integration with respect to the later of the last BTS and/or MSC initially planned for an Initial
System in accordance with this Agreement, Vendor shall issue a Certificate of Substantial
Completion with respect to such Initial System, which shall be



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in the form of a checklist listing all Installation and Integration tests performed and the
results thereof, and shall be accompanied by a Punch List of outstanding items (the
“Certificate of Substantial Completion”). Upon its reasonable satisfaction that the
Certificate of Substantial Completion is correct and complete, Cricket shall promptly (within ten
(10) calendar days of receipt) sign the Certificate of Substantial Completion or notify Vendor in
writing that Cricket has rejected the same and why. Should rejection not be received in writing
within the ten (10) calendar days, the Certificate of Substantial Completion shall be deemed
accepted. In no event (including in the case when Commercial Launch has occurred) will Substantial
Completion be deemed achieved if less than [***] of planned BTS for an Initial System within a New
Market are covered by Installation and Integration Substantial Completion Certificates and less
than [***] of Cricket’s planned covered POPs for an Initial System within a New Market have
commercially acceptable coverage.



          (d) “Beta” Tests. Upon written notice to Vendor, Cricket shall be entitled, in its
sole discretion to conduct beta testing, and in connection therewith Cricket shall be entitled to
add appropriate items to the Punch List prior to Final Acceptance.



          (e) Certificate of Final Acceptance. During the [***]
period following Substantial Completion (as extended as described below, the
“Initial Period”), Vendor shall complete all outstanding Punch List items and Cricket and
Vendor shall monitor the Initial System for outages and compliance with the Specifications. In
event that all Punch List items have been completed during the Initial Period, all testing
specified in Exhibit I has been satisfactorily completed and there have been no Major Outages, then
at the end of the Initial Period Vendor shall issue a Certificate of Final Acceptance certifying
the same. Upon its reasonable satisfaction that the Certificate of Final Acceptance is correct and
complete, Cricket shall sign the Certificate of Final Acceptance. In the event that a Major Outage
occurs during the Initial Period, the Initial Period shall be extended (an “Extension
Period”) for an additional [***]. In the event a Major Outage occurs during the Extension
Period, the Initial Period shall be further extended until [***]. Provided that Vendor has
completed all Punch List items and all other applicable requirements set forth in the Exhibits,
Cricket shall issue a Certificate of Final Acceptance not later than the end of the Initial Period
(as extended) after receipt of notice from Vendor containing (i) a statement that Vendor has
corrected the problem giving rise to the Major Outage or Major Outages, and (ii) a description of
the corrections made. With respect to each Initial System, Cricket shall not be required to sign
the Certificate of Final Acceptance until all such Documentation has been so delivered (and Final
Acceptance shall not be deemed to have occurred earlier than the date that is [***] Business Days
prior to the date of delivery of such Documentation). In addition to, and without limiting the
requirements set forth in the preceding sentence, the Operating Manuals and the Maintenance and
Instruction





 




			
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Manuals shall be submitted to Cricket in CD-ROM format (when available) in addition to hard-copy
volume format if so requested by Cricket.




          8.2 Acceptance Procedures With Respect to Expansions.



     (a) If Vendor provides Installation and/or Integration Services with respect to Expansions,
then upon completion of such Installation and/or Integration Services, Vendor shall issue a notice
of completion (“Notice of Completion”). Company shall have a period of fifteen (15) calendar days
from receipt of such Notice of Completion in which to notify Vendor in writing if such Expansions
do not comply with the Specifications, or if such Services were not performed according to normal
industry standards and practices and in accordance with Specifications. Such Expansions shall be
deemed accepted by Company at the end of such fifteen (15) day period, unless Company issues
written notification of Company’s rejection of such Expansions and/or Services.



     (b) If Vendor provides no Services with respect to Expansions, then Company shall have fifteen
(15) days after delivery of such Expansions to the Site described in the relevant Purchase Order to
inspect such Expansions and make known any rejection of such Expansions. Should no written
rejection of the Expansions be given by Company within fifteen (15) days after delivery, the
Expansions shall be deemed accepted.



          8.3 Costs and Expenses. The costs and expenses of complying with all acceptance
procedures set forth above shall be borne by Vendor, provided that Cricket or the Companies remain
responsible for completing those items identified in the Exhibits as their responsibility.



     SECTION 9. CHANGE ORDERS AND SCHEDULING



          9.1 Change Orders. The Purchaser has the right to request changes, other revisions
or modifications to any of its Purchase Orders or to the Work (“Changes”), including but
not limited to the Specifications, the manner of performance of the Work or the timing of the
completion of the Work. All Changes shall be subject to the prior written consent of Vendor. All
Changes shall be documented in a written order (“Change Order”) which shall be executed by
the Purchaser and Vendor and shall contain any adjustments to pricing, Milestone or other aspect of
the Work as mutually agreed by the parties. Vendor shall promptly notify the Purchaser of any such
requested Changes which may materially affect the operation or maintenance of any System or any
part thereof. In the event that the parties cannot agree on a Change Order within fifteen (15)
days of submission of a Change Order by the Purchaser to Vendor, the matter shall then be referred
to dispute resolution pursuant to Section 21. Nothing contained in this Section is intended to
limit Vendor’s right, from time to time, to make suggestions for modifications to the Work or the
Specifications, provided that in any such event the Purchaser, in its sole and
absolute discretion pursuant to



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the terms of this Agreement may refuse to make any such modification or otherwise agree to issue a
Change Order incorporating any such Vendor suggestion.



          9.2 Cancellation. A Purchaser may at any time cancel, in whole or in part, any
Purchase Order or Change Order upon advance written notice to Vendor. In the event of such
cancellation, the Purchaser shall pay to Vendor cancellation charges in accordance with Exhibit C.



     SECTION 10. DISCONTINUED PRODUCTS AND CONTINUING PRODUCT SUPPORT



          10.1 Notice of Discontinuation. During the Term of this Agreement, and/or during the
term of any maintenance and support agreement between Vendor and Cricket (“Support Period”), Vendor
shall provide Cricket not less than [***] notice (the “Discontinued Product Notice”) before
Vendor discontinues manufacturing of or support for a Product (“Discontinued Products”).
In respect of Products manufactured by a third party vendor, the notice period may vary. Where
Vendor offers a product for sale that is equivalent in Form, Fit and Function in accordance with
and pursuant to the Specifications, the notification period may vary but in no event shall be less
than 180 days. In the case of each Discontinued Product, described above Vendor shall for up to
[***] from the date of the Discontinued Product Notice, furnish Products (including, without
limitation, Software Releases) fully compatible with the relevant components (including the
Discontinued Product) within the System in which the Discontinued Product resided at the time that
a Product is discontinued; provided that, nothing herein shall bar the Vendor from discontinuing
individual items of Products as provided in and pursuant to this Section. In the event that Vendor
discontinues a Product, Vendor will meet with Cricket and use reasonable, good faith efforts to
develop a mutually acceptable transition plan that takes into account Cricket’s existing investment
in the item scheduled for discontinuance.



          In addition to repairs provided for under any applicable Warranty, Vendor shall offer repair
Services and Spare Parts in accordance with Vendor’s standard repair and repair parts practices and
terms and conditions then in effect, for all Products furnished pursuant to this Agreement. Such
repair Services and Spare Parts shall be available while Vendor is manufacturing or stocking such
Products or repair parts, but in no event less than [***] for all Products after Cricket’s receipt
of the Discontinued Product Notice (the “Support Period”) on the same terms and conditions
in effect at the time of Cricket’s receipt of the Discontinued Product Notice.





 




			
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          If during the Support Period Vendor fails to provide Spare Parts or repair Services on terms
and conditions in effect at the time of Cricket’s receipt of the Discontinued Product Notice and a
functionally equivalent replacement has not been designated, Vendor shall, in addition to any other
right or remedy available to the Companies at law or in equity, provide Cricket, at no additional
charge to Cricket, upon request, with non-exclusive licenses for Product manufacturing to the
extent Vendor can grant such licenses, so that Cricket will have sufficient information, ability
and rights to have such Discontinued Products manufactured, or obtain such repair Service or Spare
Parts from other sources.




          If Vendor discontinues the availability of a Product after that Product’s Warranty Period, in
addition to the rights of the Companies hereunder, the Companies shall be afforded no less
favorable treatment in terms of Vendor’s or its Affiliates’ manufacturer’s discontinuation programs
offered to Vendor’s or its Affiliates’ other customers, when comparing the needs of like customers
and Vendor’s commitments pursuant to all agreements viewed collectively.




     SECTION 11. SOFTWARE



          11.1 RTU License. (a) Upon delivery of the Software, but subject to payment of
initial license fees, if any, in accordance with this Agreement, the Companies are hereby granted
a personal, transferable (subject to the terms of this Agreement), non-exclusive, fully paid-up,
multi-site (capability to move Software from site to site within the United States and its
territories) right to use license for the Software (“RTU License”), to operate the
applicable Equipment, processor or product line for which the licenses to use the Software are
granted, or temporarily on any comparable replacement if any such Equipment, processor or product
line becomes inoperative.



          11.2 Companies’ Obligations. The Software, and all copies thereof made by any
Company, shall be treated by the Companies as trade secrets and proprietary to Vendor, its
Subcontractors or its suppliers, as appropriate and Cricket shall, and shall ensure that each
Company shall:



          (a) Utilize the Software solely in conjunction with the Products; however, Vendor
acknowledges that the Software shall be integrated and used across interfaces with systems,
equipment and software provided by other suppliers and customers and Vendor expressly consents to
such integration and use. Vendor’s consent does not guarantee that such Software will interact
with any supplier or customers products, but will only perform for the purpose originally intended
pursuant to the Specifications and Documentation;



          (b) Ensure that all copies of the Software shall, upon any reproduction by such Company
authorized by Vendor and whether or not in the same form or format as such



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Software, contain the same proprietary, confidentiality and copyright notices or legends which
appear on the Software provided pursuant hereto; and



          (c) Hold secret and not disclose the Software to any person, except to such of its employees,
and (i) contractors, agents or Affiliates that are involved in the operation or management of a
System or Products and need to have access thereto to fulfill their duties in such capacity, or
(ii) other Persons who need to use such Software to permit integration of a System or Products with
systems and software of other suppliers and customers; or (iii) any Company or any transferees,
licensees or assignees of the Products pursuant to Sections 3.7, 11.4 or 24.4; provided that, in
addition to any other requirements set forth in this Agreement, any Persons described in
(i) or (ii) above will have a written agreement of confidentiality with Company no less restrictive
than the form attached as Exhibit N-1.



          (d) When and if the Company determines that it no longer needs the Software or if the
Company’s license is canceled or terminated pursuant to the terms of this Agreement, Cricket shall
ensure such Company returns all copies of such Software to the Vendor or follow reasonable written
disposition instructions provided by the Vendor. If the Vendor authorizes disposition by erasure
or destruction, the Company shall remove from the medium on which Software resides all electronic
evidence of the Software, both original and derived, in such manner that prevents subsequent
recovery of such original or derived Software.



          (e) Company shall not copy Software embodied in firmware unless otherwise specifically
provided in this Agreement.



          (f) Not modify Software furnished by Vendor under this Agreement except to the extent
authorized by Vendor in writing.



          (g) Only use the Software in connection with the business operations of the Companies or any
transferee that has a right to use the Software pursuant to this Section 11. The RTU License does
not grant any Company any right to, and no Company will, modify, decompile, reverse engineer, or
disassemble, or in any other manner decode Software furnished as object code for any reason,
including without limitation, to generate corresponding source code provided in each of the
Systems. Except as provided below, no license is granted to any Company to use the Software
outside of the United States and its territories.



          11.3 Backwards Compatibility. Vendor represents and warrants (the “Software
Backwards Compatibility Warranty”) that all Software will be Backwards



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Compatible. In the event that any Software supplied by Vendor does not provide Backwards
Compatibility, then Vendor shall [***]. The preceding warranty does not apply, and Vendor will not be responsible for Backwards
Compatibility, to the extent that changes or requirements dictated by industry standards bodies
with respect to standards to which the Software must adhere prevent or cause the Software not to be
Backwards Compatible. As used here, “industry standards bodies” means independent organizations
who produce standards for communications technologies, including (among others) the Alliance for
Telecommunications Industry Solutions, 3rd Generation Partnership Project, and the European
Telecommunications Standards Institute.



          11.4 Transfer and Relocation. Any Company may Convey any Product and any RTU License
for the Software furnished under this Agreement to any other Company at any time without the
consent of Vendor. In the event any Company elects to transfer title of a Product to a third party,
and where such Product shall remain in place and be used for substantially the same purpose as used
by the transferring Company and where such third party resides in the United States and is not a
competitor of Vendor involved in the manufacture of communications equipment, software or related
services, the RTU License for the Software furnished under this Agreement for use with such Product
shall transfer to such transferee, without the payment of any additional Software right to use fees
by the transferee, provided such transferor fees where not calculated on a per subscriber, usage or
other capacity limited basis, and provided that transferee subscribes to Vendor’s Software support
program calculated on the same basis as that for the transferor. Upon such transfer the Companies
shall not be released from any of their obligations under the RTU License for such Product which
arose prior to the date of transfer, but shall be automatically released from all obligations
arising on or after the date of transfer. For example, if the RTU License for the Software
contains usage or per subscriber limits, or the processor to be used by transferee requires
additional memory or hard disk space additional payments or purchases may be required to increase
the license limits. The following conditions shall apply to transfers and relocations pursuant to
this subsection 11.4:




     (a) The right to use such Software may be transferred only together with Products with
which the transferring Company has a right to use such Software, and such right to use the
Software shall continue to be limited to use with such Products;




     (b) Before any such Software is transferred, the transferor shall notify Vendor of
such transfer and the transferee shall have agreed in writing (a copy of which shall be
provided to Vendor) to keep the Software in confidence and to comply with the conditions
respecting possession and use of Software as those imposed on the transferring Company in
this Contract;





 




			
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     (c) The transferee shall have the same right to Software warranty and Software
maintenance for such Software as the transferor, provided the transferee continues to pay
the fees, including recurring fees, if any, associated with such Software warranty or
maintenance pursuant to this Contract; and




     (d) In the event that any Company wishes to use the Software on Products outside of
the United States or to transfer Software to an Affiliate or an unaffiliated third party
transferee where such Product shall not remain in place or be used for substantially the
same purpose as used by the transferring Company, Vendor shall not unreasonably withhold
its consent to such use or transfer, provided that the transferee, as the case may be,
enters into an appropriate license agreement with an Affiliate of Vendor carrying on
business in the territory in which the Software is to be located, on terms substantially
similar to the RTU License terms set forth herein, provided, however, that Cricket
acknowledges and agrees that support and maintenance obligations set forth herein are only
applicable for Software resident on Products located within the United States. Support and
maintenance Services offered by Vendor’s Affiliates differs in various different
territories, and will be subject to the local practices maintained in such territory.


Except as otherwise provided in this Agreement, no Company or any successor to the Company’s title
in the Products shall have any right to transfer Software furnished by Vendor under this Agreement
without the consent of Vendor, which consent shall not be unreasonably withheld. If a Company
elects to transfer Equipment purchased under this Agreement for which it does not under this
Agreement have the right to transfer related Software, Vendor agrees that upon written request of
Cricket, the transferring Company or the transferee of such Equipment, Vendor shall not without
reasonable cause fail to grant to the transferee a license to use such Software with the Equipment,
whether to be located within the United States or elsewhere, upon payment of a relicensing fee to
the Vendor on commercially reasonable terms acceptable to Vendor.




          11.5 Termination and Survival. Company’s rights and obligations under a RTU License
shall survive the expiration or termination of this Agreement, unless Company persistently and
materially breaches its i) confidentiality obligations, ii) payment obligations, or iii) other
obligations, in each case with respect to the RTU License granted hereunder; provided that, Vendor
provided written notice of such breach to Company and Company has a reasonable time, and in no
event less than thirty (30) days from the date of such notice, to cure any such breach. In the
event that Vendor does not receive any applicable Annual Maintenance Fees that allow Company to
receive Software Updates or Software Upgrades to Software for which Company holds a RTU License,
then Vendor may terminate such maintenance or support with respect to the unpaid fees only, but the
RTU License for the last Software Release shall not terminate. Any terminated rights related to
non-payment of any Annual Maintenance Fees or RTU License fees pursuant to this Section 11.5 shall
be immediately reinstated upon payment of all applicable unpaid RTU License fees or Annual
Maintenance Fees, as applicable. In no event other than as set forth in this



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Section 11.5 may Vendor terminate the RTU License or any Company’s right to use the Software.
Notwithstanding any other provision of this Agreement, if there is a dispute, pending final
resolution of such dispute, all of Companies’ rights under this Agreement shall continue in full
force and effect, and Vendor will not terminate the RTU License, and so long as Vendor continues to
receive the applicable Annual Maintenance Fees, Vendor will not terminate, suspend, interrupt or
delay maintenance and support of the Software. Subject to the first sentence of this Section 11.5,
upon termination or expiration of this Agreement Company will have the right to continue its RTU
license, including maintenance and support services, on substantially the same terms and
conditions, including payment, as immediately prior to such termination or expiration.



          11.6 Access to Source Codes. Vendor covenants in the event that: (i) Vendor becomes
insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or an involuntary petition in bankruptcy is filed against Vendor, or ii) Vendor, a
successor company, or assignee discontinues maintenance and support for its most current release of
CDMA Software and such maintenance and support cannot be obtained from a third party on reasonable
commercial terms; and (iii) Vendor, a successor company, or assignee releases CDMA Software Source
Code to any customer either directly or through an escrow arrangement, then Vendor agrees to
release the CDMA Software Source Code for Cricket’s licensed CDMA Software to Cricket upon
Cricket’s request. In such event, Vendor shall grant to Cricket a non-exclusive, perpetual,
fully-paid, royalty-free right and license to use, copy, modify, compile or otherwise use, or have
its contractors or agents use, copy, modify, compile or otherwise use the CDMA Software Source Code
on Cricket’s behalf solely in connection with Cricket’s maintenance and support of the CDMA
Software, provided that Cricket, its Subcontractors and agents treat any such released Source Code
as Proprietary Information of Vendor.



          11.7 Ownership of Intellectual Property.



               11.7.1 Vendor shall own all forms of intellectual property rights (including, but not limited
to, patent, trade secret, copyright and mask rights) pertaining to the Software, and shall have the
right to file for or otherwise secure and protect such rights. The foregoing notwithstanding, the
parties understand and agree that from time to time any Company may independently devise, develop
or otherwise create ideas or other concepts for services or new products which are patentable or
otherwise capable of receiving protection from duplication. In such event, such Company shall have
the right to apply for a patent in accordance with applicable law (or assign its rights to any
other Company or any third party), provided, however, that notwithstanding this Section, Vendor
does not hereby relinquish or release any of its intellectual property rights.



               11.7.2 All rights in any improvements, inventions, and innovations made independently and
solely by any Company or Companies without the use of any intellectual property or Proprietary
Information of the Vendor shall vest in such Companies,



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and such Companies and their Affiliates shall have the right to exploit such improvements,
inventions, and innovations.



               11.7.3 All rights in any improvements, inventions and innovations made independently and
solely by Vendor without the use of any intellectual property or Proprietary Information of any
Company shall vest in Vendor, and Vendor and its Affiliates shall have the right to exploit such
improvements, inventions and innovations.



     SECTION 12. SOFTWARE AND EQUIPMENT CHANGES



          12.1 Software Upgrades and Software Updates.



               12.1.1 Software Releases. During the Term or any extension thereof, Vendor shall
make available to each Company all Releases applicable to Software for which such Company has
obtained a RTU License at such times as they become generally available to Vendor’s customers.
Each Company shall also be entitled to receive Optional Software Features at such time as they
become generally available to Vendor’s customers upon Purchaser’s payment of the appropriate fees
determined in accordance with Exhibit A. Cricket may elect to purchase such Optional Software
Features on a per feature basis, or purchase annual buy-out rights on a per Market basis,
permitting the Companies to select those features it wishes to deploy in the relevant Market.
During the Term, Vendor will use commercially reasonable efforts to work jointly with the Companies
or the Companies’ third party equipment or service suppliers with respect to the integration of
such third party’s equipment or services with the Products and System(s).



               12.1.2 Notice. Vendor shall give Cricket, or cause Cricket to be given, not less
than ninety (90) days prior written notice of the introduction of any Software Release. In
addition, on a biannual basis during the Term, Vendor shall provide, or cause to be provided, to
Cricket a forecast of future Software Releases then currently being developed by or on behalf of
Vendor.


The forecast of future software releases (“product roadmap”) is provided by Vendor solely to inform
Cricket of Vendor’s current plan of record for the relevant product(s) and both parties to this
contract hereby agree that such information does not form a commitment of any kind on either party
in relation to this contract. 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 product


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roadmap including cancellation of any specific feature or functionality or delay in the timing of
development [***].




               12.1.3 Installation, Testing and Maintenance. The Installation and testing of the
Software by Vendor and the acceptance thereof by Cricket shall be performed in accordance with the
criteria set forth in Exhibit I.



               12.1.4 Software Fixes. In the event that any Software supplied by Vendor during the
Term has the effect of preventing any Products, System or any part thereof from satisfying, or
performing in accordance with the Specifications or the Exhibits or otherwise adversely affects the
functionality or features of any Products, System or any part thereof, then Vendor shall promptly
retrofit or take such other corrective action as may be necessary to ensure that any Products,
System or any such affected part, as modified to include each Software Release, shall satisfy, and
perform in accordance with, the Specifications and the Exhibits and restore all pre-existing
functionality and features as well as provide any new features and functionality provided by any of
the foregoing modifications, in each case without any charge to any Company. During the Warranty
Period Company shall receive all Software Updates at no additional charge; if out of Warranty,
Company may receive such Software Update or Software Upgrade at no additional charge provided i)
Purchaser has paid the applicable Annual Maintenance Fees and ii) when Company’s System is
operating on the Software Upgrade Release licensed to Company that is not more than two Releases
back from the then current Software Upgrade Release (i.e. if Software Upgrade Release 8.0 is the
most current Software Release available, Company’s System must be operating on Software Upgrade
Release 6.0 or higher at all times.). Notwithstanding anything contained herein in this Section to
the contrary, each Company shall be responsible for the cost of any additional Equipment required
to accommodate additional capacity, memory or processing requirements necessitated by any new
Software feature or Optional Software Feature which such Company elects to use (provided such use
is optional without losing the benefit of the Software Release) which are contained in any such
Software Release; provided, however, that such Company shall not be required to pay for any
additional Equipment required to accommodate additional capacity, memory or processing requirements
necessitated by implementation of a required Software Release, whether or not such Software Release
is issued as a stand-alone release, or is contained within a separate Software Release. Such
additional Equipment shall be provided by Vendor to such Company without charge. Company further
understands that due to technological changes within the industry, should Vendor’s future Software
Upgrade Release require an Equipment retrofit to accommodate such functionality provided in such
optional future Software Upgrade Release, then should Company desire such additional optional
functionality, then Company will pay a reasonable price for such optional Equipment retrofit
required to accommodate such optional features of such optional





 




			
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Software Upgrade Release, including any Software Upgrade Release skipped (e.g. Company is operating
on Software Upgrade Release 6.0 and it is capable to skip directly to Software Upgrade Release 8.0
because 8.0 is Backwards Compatible with 6.0 and 7.0. ).



For the Term of the Agreement, all features and functionality mandated by any regulatory authority
will be provided by Vendor. Any Software directly associated with a mandated feature will be
provided to Purchaser as part of the Annual Maintenance Fee and any specific Equipment required
will be provided by Vendor at fair market value.




          12.2 Equipment Upgrades and Equipment Updates.



               12.2.1 Equipment Updates. (a) During the Term or any extension thereof, Equipment
Updates will be provided to the Companies [***]. If requested by a Purchaser, Equipment Upgrades
must be provided by Vendor and the price charged by Vendor shall comply with the prices contained
in this Agreement, unless otherwise mutually agreed to. If Vendor at any time issues an Equipment
Update, [***] included within the Equipment Combined Release, at which time Company will pay [***]
and provided such use by such Company of such Equipment Upgrade is optional without losing the
benefit of the Equipment Update.



               (b) (i) If Vendor issues a Product Change Notice after Equipment has been shipped to a
Purchaser, or where a modification to correct an error in field documentation is to be introduced,
Vendor will promptly notify Cricket of such change through Vendor’s design change management system
or another Vendor notification procedure. If Vendor has engineered, furnished, or installed
Equipment which is subject to a Product Change Notice, Vendor will implement corrective action, at
its sole cost and expense, if such Product Change Notice is announced within the longer of
[***]
from the date of shipment of that Equipment, or [***], and subject to the reasonable
review and acceptance of Cricket at such times as Cricket reasonably determines that it needs to
review such Vendor decision, by either (A) modifying the Equipment at the Site; (B) modifying the
Equipment which has been returned to Vendor in accordance with Vendor’s reasonable instructions
pursuant to and in accordance with the terms of this Agreement; or (C) replacing the Equipment
requiring the change with replacement Equipment for which such change has already been implemented.
If Vendor has not engineered the original Equipment application and as a result thereof office
records are not available to Vendor, Vendor will provide the generic change information and
associated parts for the Companies’ use in implementing such change.



          (ii) In any of the instances described in clause (i) above, if Vendor and Cricket agree that
a Product or part thereof subject to such change is readily returnable,





 




			
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without incurring any significant time or expense, the applicable Company, at its expense, will
remove and return such Product or part to Vendor’s designated facility within the United States and
Vendor, at its sole expense, will implement such change (or replace it with a Product or part for
which such change has already been implemented) at its facility and return such changed (or
replacement) Product or part at its sole cost and expense to the Company’s designated location
within the United States. Any such reinstallation of Products which were readily returnable will
be performed by the applicable Company at its sole expense, provided such reinstallation can be
done by the Company without incurring any significant time or expense. In all other circumstances,
Vendor shall provide such removal, repair and reinstallation Services at its sole cost and expense.




          (iii) If the Owner does not make or permit the Vendor to make an Equipment Update as stated
above within a reasonable period which shall be a period of time not
less than [***] Certain
information on this page has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions
from the date of the Product Change Notice, subsequent changes, repairs or replacements
affected by the failure to make such change may, at the Vendor’s option, be invoiced to the Owner
whether or not such subsequent change, repair or replacement is covered under the warranty provided
in this Agreement for such Equipment.



          (iv) If Vendor issues an Equipment Upgrade after a Product has been shipped, Vendor will
promptly notify Cricket of such change if it is being offered to any of Vendor’s customers. The
pricing for such Equipment Upgrades will be as set forth in Exhibit A.



          (v) All notifications for Equipment Updates and Equipment Upgrades provided by Vendor
pursuant to the terms of this Agreement must contain the following information: (A) a detailed
description of the change; (B) the reason for the change; (C) the effective date of the change; and
(D) the implementation schedule for such change, if appropriate.



               12.2.2 Notice. Vendor shall give, or shall cause to be given to, Cricket not less
than ninety (90) days prior written notice of the introduction of any Equipment Upgrade or any
Equipment Combined Release. In addition, on a biannual basis during the Term, Vendor shall provide
Cricket with a forecast of future Equipment Upgrades to the Equipment or Equipment Combined
Releases then currently being developed by or on behalf of Vendor.


The forecast of future Equipment Upgrades or Equipment Combined Release (“product roadmap) is
provided by Vendor solely to inform Cricket of Vendor’s current plan of record for the relevant
product(s) and both parties to this contract hereby agree that such information does not form a
commitment of any kind on either party in relation to this






 




			
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contract. 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 product roadmap including
cancellation of any specific feature or functionality or delay in the timing of development[***].




               12.2.3 Installation and Integration. The Installation and Integration of the
Equipment by Vendor, if so ordered by Purchaser shall be performed in accordance with a mutually
agreed upon statement of work specific to such Equipment Update or Equipment Upgrade.



               12.2.4 Equipment Fixes. In the event that any Equipment Update or Equipment Upgrade,
directly or indirectly, supplied by Vendor during [***], or [***], has the effect of preventing any Product, System or any part thereof from
satisfying, or performing in accordance with, the Specifications or otherwise adversely affects the
functionality, interoperability or features of any Product, System, or any part thereof then Vendor
shall [***] promptly retrofit or take such other corrective action as may be necessary to assure
that any Product, System or any such affected part, as modified to include each such Equipment
Update and Equipment Upgrade, shall satisfy, and perform in accordance with, the Specifications and
restore all pre-existing functionality and features as well as provide any features and
functionality provided by any of the foregoing modifications.



               12.2.5 Equipment Backwards Compatibility Warranty. Vendor represents and warrants
(the “Equipment Backwards Compatibility Warranty”) that each Equipment Release will be
Backwards Compatible, provided that it is implemented within the specified time provided with each
New Equipment Release but such specified time shall be no less than a period of [***]. The
preceding warranty does not apply, and Vendor will not be responsible for Backwards Compatibility,
to the extent that changes or requirements dictated by industry standards bodies with respect to
standards to which the Equipment is required to adhere prevent or cause the Software not to be
Backwards Compatible. As used here, “industry standards bodies” means independent organizations
who produce standards for communications technologies, including (among others) the Alliance for
Telecommunications Industry Solutions, 3rd Generation Partnership Project, and the European
Telecommunications Standards Institute.





 




			
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          12.3 Notice of Developments.



               12.3.1 Vendor Developments. Vendor shall provide Cricket, or cause to be provided to
Cricket, through Cricket’s chief technical officer (or in the absence of such officer, to Cricket’s
chief executive officer), with reasonable written notice of any Product developments, innovations
or technological advances (collectively “Vendor Developments”) relevant to the Products or
Systems simultaneous to giving such notice to any other customer or otherwise making any such
Vendor Development public provided that the Vendor shall not be obligated to
provide Cricket such notice before any other customer if doing so would breach any contractual
obligation to any other customer, provided further that any such notice need not include any
information originated by another customer of Vendor which is proprietary to such other customer of
Vendor. For the purposes of this Section the term “Vendor” includes Vendor and its Affiliates and
subsidiaries.



               12.3.2 Participation in Testing. Cricket has the right, but not the obligation, to
witness or participate in any initial testing of Vendor Developments; provided that
any such initial testing of Vendor Developments shall be subject to scheduling as reasonably
determined by Vendor. Vendor shall provide Cricket at least thirty (30) days’ prior written notice
of its intent to test any such Vendor Development and upon Cricket’s written request Vendor shall
allow Cricket to participate in such testing upon terms and in a testing environment reasonably
acceptable to the parties at such time. Such rights shall not apply to a Vendor Development
originated by another customer of Vendor which includes information which is proprietary to such
other customer.



               12.3.3 Quarterly Notices. Vendor shall make reasonable efforts to collect
and distribute on a quarterly basis a list of new Software bugs, problems, fixes, etc., provided
that Vendor shall not be required to distribute confidential information of any other customer.



     SECTION 13. INTELLECTUAL PROPERTY



          13.1 Infringement. Vendor agrees that it shall defend, indemnify and hold the
Companies, and their respective officers, directors, employees, affiliates, agents and assigns of
each of the Companies (collectively, the “Company Indemnified Parties”) harmless from and
against any and all Losses based on or arising from claims that the Products, the Work or any
components thereof infringe, misappropriate or violate any patent, trademark, copyright, trade
secret or other intellectual property right of any third party which is enforceable in the United
States or in any other territory where any Person is permitted to deploy or use the Products under
this Agreement (collectively, “Intellectual Property Rights”), provided that the Company
Indemnified Parties involved shall cooperate, at Vendor’s expense, in all reasonable respects with
Vendor and its attorneys in the investigation, trial and defense of such lawsuit or action and any
appeal arising therefrom. If a claim for Losses is to be made by a party entitled to
indemnification



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hereunder against Vendor, the party claiming such indemnification shall give written notice (a
“Claim Notice”) to Vendor as soon as reasonably practicable after the party entitled to
indemnification becomes aware of any fact, condition or event which may give rise to Losses for
which indemnification may be sought under this Agreement, provided, however, no delay on the part
of any Company Indemnified Parties in notifying Vendor shall relieve Vendor from any obligation
hereunder unless (and then solely to the extent) Vendor is thereby prejudiced. Notwithstanding the
foregoing, the Company Indemnified Parties may, at their own cost, participate in the
investigation, trial and defense of such lawsuit or action and any appeal arising therefrom;
provided, however, that if Vendor assumes the defense of such lawsuit, action or investigation and
any appeals and continues to pursue the defense of such lawsuit, action or investigation to
conclusion Vendor shall have sole control over the defense and settlement negotiations thereof
(subject to the provisions of this Section 13) and while Vendor is defending such lawsuit, action
or investigation Vendor shall not be liable for any settlements entered into or expenses/costs
incurred by any Company without Vendor’s prior written approval. The parties shall cooperate with
each other in any notifications to insurers. If any lawsuit or enforcement action is filed against
any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to
Vendor as promptly as reasonably practicable (and in any event within fifteen (15) calendar days
after the service of the citation or summons). Vendor shall be entitled, if it so elects, (i) to
defend such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and
defend the same, at Vendor’s cost, risk and expense, and (iii) to compromise or settle such Claim,
which compromise or settlement shall be made only with the written consent of the Company
Indemnified Parties involved (which may not be unreasonably withheld), unless such compromise or
settlement includes an unconditional release of any claims against the Company Indemnified Parties,
includes no restrictions on the operations of the Company Indemnified Parties and admits no
wrongdoing by any Company Indemnified Parties in which event such written consent of the Company
Indemnified Parties shall not be required. If Vendor fails to assume the defense of such Claim
within fifteen (15) calendar days after receipt of the Claim Notice, or assumes such defense but
thereafter abandons such defense, the Company Indemnified Parties against which such Claim has been
asserted will (upon delivering notice to such effect to Vendor) have the right to undertake, at
Vendor’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for
the account and risk of Vendor. In the event any Company Indemnified Parties assume the defense of
the Claim due to the Vendor’s failure to assume the defense of such claim within fifteen (15)
calendar days, such Company Indemnified Parties will keep Vendor reasonably informed of the
progress of any such defense, compromise or settlement. Vendor shall be liable for any settlement
or compromise of any action effected pursuant to and in accordance with this Agreement and for any
final judgment (subject to any right of appeal), and Vendor agrees to indemnify and hold harmless
the Company Indemnified Parties from and against any Losses by reason of such settlement or
judgment.



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          13.2 Vendor’s Obligation to Cure. If in any such suit so defended, all or any part
of the Products or any component thereof is held to constitute an infringement or violation of
Intellectual Property Rights of others and its use is enjoined, or if in respect of any claim of
infringement or violation the Vendor deems it advisable to do so, the Vendor shall at its sole
cost, expense and option take one or more of the following actions: (i) procure the right to
continue the use of the same for the Companies without interruption; (ii) replace the same with
non-infringing Products that meet the Specifications in accordance with the terms of this Agreement
(including, without limitation) having equivalent performance and functionality); or (iii) modify
said Products, any System or any component thereof so as to be non-infringing, provided that the
Products, any System or any component thereof as modified meets all of the Specifications in
accordance with the terms of this Agreement (including, without limitation) having equivalent
performance and functionality). In the event that Vendor is not able to cure the infringement
pursuant to clause (i), (ii) or (iii) in the immediately preceding sentence, in addition to the
other rights and remedies provided in this Section 13, Vendor shall, at Cricket’s option, refund to
each Purchaser the full purchase price paid by such Purchaser for (x) such infringing Product or
feature, and (y) refund a reasonable and equitable proportionate amount of the full purchase price
paid by such Purchaser based on the limitation of all other Products and features that any Company
is unable to use to their full capacity as a result of the non-availability of such infringing
Product or feature, provided that with respect to clause (y) i) such refund will take into account
the cost benefit received by the Purchaser for such Products and features prior to such Claim, and
ii) provided that the Company returns to Vendor such infringing Product or feature. Vendor shall,
at its expense, de-install and remove such infringing Products and features.



          13.3 Exclusions From Vendor’s Obligations. Vendor’s obligations under this
Section 13 shall not apply to any infringement or violation of Intellectual Property Rights to the
extent that such infringement or violation of Intellectual Property Rights is caused by
modification of the Products, any System or any component thereof by any Company if such
modification is neither permitted under this Agreement nor authorized by Vendor or infringement
that arises solely from combination of the Products with other products not supplied, installed,
recommended or approved by Vendor, or that arises from adherence to instructions to apply any
Company’s trademark, trade name or other Company identification to a Product. The
Vendor’s obligation under this Section 13 shall not extend to alleged infringements or violations
that arise because the Products provided by the Vendor are used in combination with other products
furnished by third parties and where any such combination was not installed, recommended or
approved by the Vendor.


Company shall indemnify the Vendor against all liabilities and costs, including reasonable
attorneys’ fees, for defense and settlement of any and all claims against the Vendor to the extent
that such claims for infringements or violations of Intellectual Property Rights are based upon the
actions of any Company as described in this Section 13.3. In the event of any such claim, Company
shall have all the rights to defend, settle, and control the defense of


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such claim as would be applicable to Vendor under Section 13.1 if such claim was a claim covered by
Section 13.1.




          13.4 Infringement Related To OEM Equipment. In the event of an infringement claim by
a third party alleging infringement of patent, trademark, copyright or violation of trade secrets
or proprietary rights because of, or in connection with, OEM Equipment furnished pursuant to this
Agreement, then at Cricket’s request, Vendor shall attempt to assign any of its indemnity rights
for such infringement claim to Cricket. If Vendor is unable to assign such indemnity rights to
Cricket, Vendor shall enforce its indemnity rights against the applicable OEM Equipment supplier
and pass through indemnity amounts to which Vendor or the Companies are entitled, and in such event
Cricket agrees to comply with any commercially reasonable obligations required by the OEM Equipment
supplier in order for Vendor to enforce such rights.



     SECTION 14. [***]




[***]



[Four Pages Of Commercially Sensitive Information Omitted Pursuant To A Confidential Treatment
Request]




     SECTION 15. FORCE MAJEURE



          15.1 Excusable Delay. If the performance of this Agreement, or of any obligation
hereunder is prevented, restricted or interfered with by reason of fires, labor disputes,
embargoes, government ordinances or requirements, civil or military authorities, acts of God or of
the public enemy, acts or omissions of carriers, inability to obtain necessary materials or
services from supplier due to no fault of Vendor, other causes beyond the reasonable control of the
party whose performance is affected (“Force Majeure”), then the party affected, upon giving
prompt notice to the non-affected party, shall be excused from such performance on a day-for-day
basis to the extent of such prevention, restriction, or interference (and the non-affected party
shall likewise be excused from performance of its obligations on a day-for-day basis to the extent
the non-affected party’s obligations relate to the performance so prevented, restricted or
interfered with); provided that the party so affected shall use reasonable efforts to avoid or
remove such cause of non-performance and both parties shall proceed to perform their obligations
with dispatch whenever such causes are removed or cease.



          15.2 Notification. The party claiming the benefit of excusable delay hereunder shall
(i) promptly notify the other party of the circumstances creating the failure or delay and provide
a statement of the impact of such party’s failure or delay and (ii) use





 




			
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reasonable efforts to avoid or remove such causes of nonperformance, excusable failure or delay.




          15.3 Negotiation. In the event of a Force Majeure which the party claiming relief for
such event has used commercially reasonable efforts to resolve in accordance with the terms of this
Agreement, upon the written request of either party, the other party shall in good faith negotiate
modifications, to the extent reasonable and necessary, in scheduling and performance criteria in
order to reasonably address the impact of such Force Majeure.



     SECTION 16. WARRANTIES



          16.1 Products. Vendor warrants that, with respect to Products installed by Vendor, for
a period of [***] from the date of Substantial Completion, [***], all Products furnished under this
Agreement with respect to such System will be free of Defects and Deficiencies and shall conform to
the applicable portions of the Specifications. With respect to third-party manufactured products
which are not embedded or integrated into Vendor’s Products, Vendor shall furnish such products
only on a pass-through warranty basis; provided, however, that Vendor shall i) identify such
Products if so requested by Purchaser, and ii) assist Company in receiving warranty support for
such products. Except as noted in the A or B Exhibits, all Products referenced in the A or B
Exhibits qualify as Vendor-warranted Products. In addition, Vendor makes no warranty with respect
to defects related to Company’s database errors. Moreover, no warranty is made that Software will
run uninterrupted or error-free.



          The Vendor’s obligations with respect to the Products shall be to attempt first to repair or
replace at no additional cost, any defective Product. If, after using its commercially reasonable
efforts to repair or replace such Product and after consultation with and with the consent of
Purchaser, which consent shall not be unreasonably withheld, Vendor determines that it is unable to
repair, replace or otherwise correct such defect, Vendor shall provide a credit or refund based on
the original purchase price, and installation charges if installed by Vendor. If, as a result of
the Defect and Deficiency, the Product fails to operate in accordance with the Specifications which
causes the System to fail to materially operate in accordance with its Specifications, a refund
shall be paid to the Company on account of the purchase price for the total System, less a pro-rata
discount calculated with regard to the period of time during the Warranty Period that Company
operated the System in Commercial Service. In the event that Vendor pays a refund hereunder,
Company shall return such Products to Vendor at Vendor’s sole cost and expense. The Warranty
Period for all Products repaired, replaced or corrected shall be [***]
from the date of delivery of the repaired or replacement Product or (ii) or the
unexpired term





 




			
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of the Warranty Period. The Warranty Period for Products purchased as spares or
any Product not installed by Vendor shall be [***]
from shipment of such Products.




     For those Products not readily returnable by Company, or where Company cannot remove and
reinstall the Products without incurring significant time and expense, and where Vendor elects to
repair or replace the Product, Vendor shall repair or replace the Product at Company’s Site. In
the event Vendor does the repair work at Company’s site, Vendor shall be responsible for
replacement of cable and wire Products, and for reasonable Site restoration. If Vendor has elected
to repair or replace a defective Product, and the Product is readily returnable by Company without
incurring significant work or expense, Company is responsible for removing and reinstalling the
Products. Products returned for repair or replacement will be accepted by Vendor only in
accordance with its instructions and procedures for such returns. The transportation expense
associated with returning such Product to Vendor shall be borne by Company. Vendor shall pay the
cost of transportation of the repaired or replacing Product to the return destination designated by
Company. Defective or nonconforming Products or parts which are replaced hereunder shall become
Vendor’s property. Vendor may use either the same or functionally equivalent new, remanufactured,
reconditioned or refurbished Products or parts in the furnishing of repairs or replacements under
this Agreement, provided that such Products satisfy the Specifications.



          16.2 Services Warranty. Vendor warrants that the Services shall be performed (a) in a
professional and workmanlike manner; (b) in accordance with all applicable Specifications; (c) by
adequate numbers of personnel that have the skills, training and experience commensurate with their
responsibilities in connection with performance of the Services; and (d) in accordance with all
applicable laws and regulations. If Company notifies Vendor within the [***] period commencing on
the date of Vendor’s completion of the Service, Vendor shall correct or re-perform any Services
that do not conform to the warranty specified in this Section 16.2 at no additional charge to
Company. Vendor shall submit for Company’s review and approval a plan for problem resolution
(which plan may include onsite Services).



          16.3 Additional Provisions for Software. [***]



          16.4 Warranty Claim Procedures. (a) If any Company claims a breach of the Products
and Services Warranty, it shall notify Vendor of the claimed breach within a reasonable time after
its determination that a breach has occurred. For any Company claim of breach that may not be
determined by Company until after the Warranty Period, Company shall provide reasonable evidence
showing that such breach actually occurred
during the Warranty Period. In the foregoing case, such claim must be made within sixty





 




			
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(60) days of the end of the Warranty Period. The Company shall allow Vendor a reasonable opportunity to
inspect the Products, Services, or the System, as the case may be, on-Site in order to effect the
necessary repairs. The Vendor agrees to commence Work pursuant to any Warranty as soon as
practicable, but the Vendor shall use reasonable efforts to commence such Work in no event later
than [***]
after notification of any claim under any Warranty and to use commercially reasonable
efforts to cure such Defect and Deficiencies promptly. The foregoing notwithstanding, in the event
the Company reasonably determines that an emergency situation exists, the Vendor shall use its
commercially reasonable efforts to ship Equipment (or components thereof) no later than [***] after
notification by the Company. If in an emergency warranty service situation, the Company and/or the
Vendor determines that due to the particular circumstances, on-site technical assistance is
necessary, the Vendor shall dispatch emergency service personnel to the site. The Vendor agrees to
commence Work on all Products, Services, or any Defects and Deficiencies, as the case may be,
materially impairing service to subscribers, System performance, billing, administration and/or
maintenance as soon as practicable, but in no event later than [***] after notification of such
Defect, and the Vendor shall cure such Defect as promptly as practicable.




          (b) Vendor shall respond to such warranty claims for warranty Services in accordance with the
procedures described in Subsection 16.4(a).



          16.5 Technical Assistance. Vendor shall maintain a technical assistance center and
shall have technical support available to the Companies in accordance with the requirements set
forth in Exhibit H.



          16.6 Scope of Warranties. Unless otherwise stated herein, the Products and Services
Warranty shall not apply to:




          16.6.1 defective conditions or nonconformities to the extent resulting from the
following, if not consistent with applicable Specifications: unauthorized Company
modifications, misuse, neglect, accident or abuse, improper wiring, repairing, splicing,
alteration, installation, storage or maintenance failure of Company to apply previously
applicable Vendor modifications or corrections provided that such Vendor modifications or
corrections were provided by Vendor at no charge to such Company and that when provided,
such Vendor modifications or corrections comply with the Backwards Compatible requirements
set forth in this Agreement;




          16.6.2 any Products or Services damaged by accident or disaster, including without
limitation, fire, flood, wind, water, lightning or power failure other





 




			
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than to the extent
that any such Products or Services should in accordance with the Specifications be able to
withstand any such events; or





          16.6.3 non-integral items normally consumed in operation or which has a normal life
inherently shorter than the Warranty Period (e.g., fuses, lamps, magnetic tape); or




          16.6.4 Equipment which have had their serial numbers or months and year of manufacture
removed or obliterated by any Company; or




          16.6.5 damages or defects resulting directly from third party equipment, provided that
this shall in no event limit the Vendor’s obligations as to interoperability pursuant to
the terms of this Contract; or




          16.6.6 failures or deficiencies in performance or optimization resulting solely from
changed environmental conditions, Cricket’s RF design, Cricket optimization or unauthorized
changes to the System by Company, or changes not consented to by Company including, but not
limited to, the growth of trees and other foliage, the erection of buildings, and
interference from third party radio transmissions not otherwise engineered for by the
Vendor;


except in each case when any such damage, defects, condition, alteration, installation or
maintenance are made, done or caused by Vendor or any of its Subcontractors, their respective
agents or employees.




          16.7 Third Party Warranties. Notwithstanding any other provisions of this Agreement,
if Vendor subcontracts for the manufacture of any part of a System or Product or the performance of
any of the Services to be provided hereunder from a third party, the warranties given to Vendor by
such third party shall inure, to the extent permitted by law, to the benefit of the Companies, and
each Company shall first enforce such warranties directly with Vendor, and if not satisfied, then
to the extent allowed by law, Company may enforce such rights directly with such third party. For
items purchased by Vendor, but neither manufactured for Vendor pursuant to Vendor’s specifications,
or if purchased by Vendor and not embedded into or becomes a subassembly of Vendor’s Products (i.e.
“Third Party Vendor Items”); Vendor will pass-through all such warranties provided by such Third
Party Vendor to Company. Vendor will act in good faith to facilitate any such warranty claim for
such Third Party Vendor Items.



          16.8 Additional Sites. In the event that under the remedy provisions of this Section
16 Vendor is required to provide additional Switch(es) or BTS’s requiring additional Sites, the
applicable Company shall be responsible for all Site Acquisition



          16.9 EXCLUSIVE REMEDIES. THE FOREGOING PRODUCT AND SERVICES WARRANTY AND REMEDIES ARE
EXCLUSIVE FOR THE PURPOSES



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OF ANY BREACH BY VENDOR OF THE PRODUCTS AND SERVICES WARRANTY AND ARE IN
LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, PROVIDED HOWEVER THAT THE REMEDIES SET FORTH
IN SECTIONS 14, 18 AND 22 SHALL NOT BE AFFECTED



     SECTION 17. INSURANCE



     Vendor shall maintain insurance in accordance with the provisions set forth in Exhibit
E-1.Vendor shall cause its insurance carrier(s) to provide Cricket with an annual certificate of
insurance of such policy(ies), which shall name Cricket as an additional insured, and shall provide
Cricket with at least thirty (30) days’ prior written notice of any suspension, reduction, or
cancellation of coverage. Vendor shall notify Cricket at least thirty (30) days in advance of any
material change in such insurance coverage including without limitation, any change in the
insurance carrier(s).



     SECTION 18. INDEMNIFICATION AND LIMITATION OF LIABILITY



          18.1 Indemnity. Subject to Section 18.3, (i) Vendor agrees to indemnify, defend and
hold harmless each Company and their respective directors, officers, employees, agents, successors
and assigns, and (ii) Cricket agrees and shall cause each Company to indemnify, defend and hold
harmless Vendor and its Affiliates and their respective directors, officers, employees, agents,
successors and assigns, from Losses and threatened Losses arising from, in the case of each of the
foregoing clauses (i) and (ii), in connection with, or based on allegations of, any of the
following:




	 	(a)	 	failure by the Person against whom indemnification is
asserted to observe or perform any duties or obligations to Subcontractors or
any third parties within the reasonable contemplation of this Agreement;
	 
	 	(b)	 	the death or bodily injury of any agent, employee, customer,
business invitee or any other person caused by the negligence, willful
misconduct or strict liability of the Person against whom indemnification is
asserted, its subcontractors or its or their respective employees,
contractors, agents or representatives; provided that, no Company shall have
any liability for any act or omission of Vendor or any Vendor Subcontractor,
and Vendor shall have no liability for any act or omission of any Company or
any Company Subcontractor;
	 
	 	(c)	 	the damage, loss or destruction of any real or tangible
personal property caused by the negligence, willful misconduct or strict




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	 	 	 	liability of the Person against whom indemnification is asserted, its
subcontractors or its or their respective employees, contractors, agents or
representatives; provided that, no Company shall have any liability for any
act or omission of Vendor or any Vendor Subcontractor, and Vendor shall have
no liability for any act or omission of any Company or any Company
Subcontractor;
	 
	 	(d)	 	any claim, demand, charge, action, cause of action or other
proceeding asserted against the Person seeking indemnification but arising out
of or resulting from an act or omission of the Person against whom
indemnification is asserted, its subcontractors or its or their respective
employees, contractors, agents or representatives in its or their respective
capacities as an employer; provided that, no Company shall have any liability
for any act or omission of Vendor or any Vendor Subcontractor, and Vendor
shall have no liability for any act or omission of any Company or any Company
Subcontractor; and
	 
	 	(e)	 	any breach or inaccuracy of any representation or warranty
made by the Person against whom indemnification is asserted in or pursuant to
this Agreement and any breach of any covenant or agreement made by the Person
against whom indemnification is asserted in or pursuant to this Agreement.





          18.2 Claim for Losses. If a Claim is to be made by a Person entitled to
indemnification hereunder, the Person claiming such indemnification shall give a Claim Notice as
soon as practicable after the Person entitled to indemnification has knowledge of any event which
may give rise to Losses for which indemnification may be sought under this Agreement, provided,
however, no delay on the part of the Person seeking indemnification shall relieve the Person
against whom indemnification is sought from any obligation hereunder unless (and then solely to the
extent) such Person is thereby materially and actually prejudiced. If any lawsuit or enforcement
action is filed against any Person entitled to the benefit of indemnity hereunder, written notice
thereof shall be given to the Person against whom indemnification is asserted as promptly as
practicable (and in any event within fifteen (15) calendar days after the service of the citation
or summons). The indemnifying Person shall be entitled, if it so elects, (i) to defend such
lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the
same, at such Person’s cost, risk and expense, and (iii) to compromise or settle such Claim, which
compromise or settlement shall be made only with the written consent of the Person claiming such
indemnification (which may not be unreasonably withheld), unless such compromise or settlement (x)
includes an unconditional release in form and substance reasonably satisfactory to the indemnified
Person from all liability in respect of
such Claim and (y) does not, in the reasonable judgment of the indemnified Person, impose any
burden, restraint, cost, liability, duty or other obligation on or otherwise



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adversely affect or
have the potential to adversely affect the Person claiming indemnification, in which event such
written consent shall not be required. If the Person against whom indemnification is sought fails
to assume the defense of such Claim within fifteen (15) calendar days after receipt of the Claim
Notice, the Person claiming such indemnification against which such Claim has been asserted will
(upon delivering notice to such effect) have the right to undertake, at the expense of the Person
against whom indemnification is sought, the defense, compromise or settlement of such Claim on
behalf of and for the account and risk of the Person against whom indemnification is sought. In
the event the Person claiming such indemnification assumes the defense of the Claim, such Person
will keep the Person against whom indemnification is asserted reasonably informed of the progress
of any such defense, compromise or settlement. The indemnifying Person shall be liable for any
settlement of any action effected pursuant to and in accordance with this Agreement and for any
final judgment, and the Person against whom indemnification is asserted agrees to indemnify and
hold harmless the Person claiming indemnification from and against any Losses by reason of such
settlement or judgment.



          18.3 Limitation of Liability.


EXCEPT WITH RESPECT TO CRICKET’S GUARANTEE OF PAYMENT OWED BY A PURCHASER, THE LIABILITY OF EACH
COMPANY HEREUNDER SHALL BE SEVERAL AND NOT JOINT, AND NO COMPANY SHALL HAVE ANY LIABILITY FOR ANY
ACTS, OMISSIONS, BREACHES OR DEFAULTS BY ANY OTHER COMPANY HEREUNDER. IN NO EVENT SHALL ANY PERSON
AGAINST WHOM INDEMNIFICATION IS ASSERTED BE LIABLE TO THE PERSON SEEKING INDEMNIFICATION FOR SUCH
PERSON’S SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR REVENUES.



THE ENTIRE LIABILITY OF VENDOR FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF OWNER OR ANY OTHER ENTITY
ARISING OUT OF THIS CONTRACT, OR THE USE OR PERFORMANCE OF ANY PRODUCT OR SERVICE, WHETHER IN AN
ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT
LIABILITY, SHALL BE EXPRESSLY SET FORTH HEREIN AND AS FOLLOWS:





	 	1.	 	FOR INFRINGEMENT, THE REMEDIES SET FORTH IN SECTION 13;
	 
	 	2.	 	FOR THE NON-PERFORMANCE OF PRODUCTS OR SERVICES DURING THE WARRANTY PERIOD,
THE REMEDIES SET FORTH IN THE APPLICABLE CLAUSE OF SECTIONS 14, 16 AND 22.2 (c) IF
APPLICABLE;




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	 	3.	 	FOR VENDOR’S OBLIGATION TO [***]
OF THE AGGREGATE AMOUNT OF THE NET PURCHASE ORDER VALUE OF ALL PURCHASE
ORDERS WITH RESPECT TO ALL INITIAL SYSTEMS ORDERED UNDER THIS AGREEMENT;; AND
	 
	 	4.	 	FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE, VENDOR’S TOTAL LIABILITY TO THE
OWNER, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND
STRICT LIABILITY) SHALL BE LIMITED TO AN AMOUNT EQUAL TO [***] PERCENT ([***]%) OF THE
AGGREGATE AMOUNT OF THE NET PURCHASE ORDER VALUE OF ALL PURCHASE ORDERS ISSUED IN THE
CALENDAR YEAR IN WHICH THE CAUSE OF THE CLAIM OCCURRED.
	 
	 	5.	 	NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, NEITHER PARTY, NOR
THEIR AFFILIATES NOR THEIR EMPLOYEES, DIRECTORS, OFFICERS AND SUPPLIERS SHALL BE
LIABLE FOR THE OTHER PARTY’S INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS CONTRACT OR THE USE OR PERFORMANCE OF
ANY PRODUCTS OR SERVICES OR, EXCEPT AS SET FORTH ABOVE, FOR DAMAGES IN EXCESS OF THE
AGGREGATE AMOUNT OF ALL PAYMENTS MADE TO THE VENDOR HEREUNDER. THIS CLAUSE SHALL
SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.




EXCEPT FOR OBLIGATIONS TO VENDOR WITH RESPECT TO PAYMENT FOR PRODUCTS AND SERVICES, CRICKET OR ANY
COMPANY’S ENTIRE LIABILITY TO VENDOR, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY) SHALL BE LIMITED TO AN AMOUNT EQUAL TO TWENTY FIVE PERCENT OF THE AGGREGATE AMOUNT OF
THE NET PURCHASE ORDER VALUE OF ALL PURCHASE ORDERS ISSUED IN THE CALENDAR YEAR IN WHICH THE CAUSE
OF THE CLAIM OCCURRED.




     SECTION 19. REPRESENTATIONS AND WARRANTIES



          19.1 Representations and Warranties of Cricket. Cricket hereby represents
and warrants to Vendor as follows:






 




			
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     19.1.1 Due Organization. Cricket is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own and operate its business and properties and to carry
on its business as such business is now being conducted and is duly qualified to do
business in all jurisdictions in which the transaction of its business in connection with
the performance of its obligations under this Agreement makes such qualification necessary
or required.




          19.1.2 Due Authorization; Binding Obligation. Cricket 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 Cricket have
been duly authorized by all necessary corporate action on the part of Cricket; this
Agreement has been duly executed and delivered by Cricket and is the valid and binding
obligation of Cricket 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.




          19.1.3 Non-Contravention. The execution, delivery and performance of this
Agreement by Cricket and the consummation of the transactions contemplated hereby will not
contravene its certificate of incorporation or by-laws and will not conflict with or result
in (i) a breach of or default under any material indenture, mortgage, lease, agreement,
instrument, judgment, decree, order or ruling applicable to it or by which it or any of its
properties is bound or affected, or (ii) a breach by Cricket of any Applicable Law.




          19.2 Representations and Warranties of Vendor. Vendor hereby represents and
warrants to Purchaser as follows:




          19.2.1 Due Organization. Vendor is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Delaware and has all requisite
corporate power and authority to own and operate its business and properties and to carry
on its business as such business is now being conducted and is duly qualified to do
business in all jurisdictions in which the transaction of its business in connection with
the performance of its obligations under this Agreement makes such qualification necessary
or required.




          19.2.2 Due Authorization; Binding Obligation. Vendor 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



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Agreement by Vendor have been duly authorized by all necessary corporate action on the part
of Vendor; this Agreement has been duly executed and delivered by Vendor and is the valid
and binding obligation of Vendor 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.




          19.2.3 Non-Contravention. The execution, delivery and performance of this
Agreement by Vendor and the consummation of the transactions contemplated hereby will not
contravene its certificate of incorporation or by-laws and will not conflict with or result
in (i) a breach of or default under any material indenture, mortgage, lease, agreement,
instrument, judgment, decree, order or ruling applicable to it or by which it or any of its
properties is bound or affected, or (ii) a breach by Vendor of any Applicable Law.




          19.2.4 Regulatory 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 Vendor have been obtained or shall be obtained in due
course.




          19.2.5. Intellectual Property. To the best of Vendor’s knowledge after
reasonable investigation, as of the Effective Date there are no actual claims or threatened
or actual suits in connection with patents or other Intellectual Property Rights that could
materially adversely affect Vendor’s ability to perform its obligations under this
Agreement or materially adversely affect Company’s ability to use the Products in
accordance with the Specifications.




          19.2.6 Requisite Knowledge. Vendor has all requisite knowledge, know-how,
skill, expertise and experience to satisfy its obligations in accordance with the terms of
this Agreement.




          19.2.7 Financial Capacity. Vendor has the financial, management and
manufacturing capacity and capabilities to satisfy its obligations in a timely manner in
accordance with the terms of this Agreement.



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     SECTION 20. TITLE AND RISK OF LOSS



          Title to Equipment and risk of loss to Equipment and Software shall pass from Vendor to the
Purchaser upon delivery to the Purchaser’s designated delivery location specified in the applicable
Purchase Order, provided that nothing in this Section shall relieve any Person from responsibility
for loss or damage resulting from the acts or omissions of such Person, its employees or agents.
For items first shipped to a LSC, delivery will be upon delivery to the Site.




     SECTION 21. DISPUTE RESOLUTION



          21.1 Dispute Resolution. In the event any controversy, claim, dispute, difference or
misunderstanding between Purchaser, on the one hand, and Vendor, on the other, arises out of or
relates to this Agreement, any term or condition hereof, any of the Work to be performed hereunder
or in connection herewith, Vendor and Cricket shall designate managers to meet and negotiate in
good faith in an attempt to amicably resolve such controversy, claim, dispute, difference or
misunderstanding in writing. Such managers shall meet for this purpose within ten (10) Business
Days, or such other time period mutually agreed to by the Vendor and Cricket, after written notice
from either party. If the Vendor and Cricket are unable to resolve the controversy, claim,
dispute, difference or misunderstanding through good faith negotiations within ten (10) Business
Days after such meeting or meetings, Vendor and Cricket shall, within five (5) Business Days after
the expiration of such ten (10) Business Day period, prepare a written position statement which
summarizes the unresolved issues and such Person’s proposed resolution. Such position statement
shall be delivered by Vendor to Cricket’s Chief Executive Officer and by Cricket to Vendor’s
corresponding officer or representative for resolution within (5) Business Days, or such other time
period mutually agreed to by Cricket and Vendor. To the extent any Company seeks to enforce its
rights hereunder, it shall use the same procedures as set forth in this Section 21.1 for Cricket.
In the event that any dispute, controversy or claim which may arise between the parties hereto in
connection with this Agreement or any schedule or Exhibit attached hereto is not resolved within
the time periods specified in Section 21.1, each Party shall be entitled to pursue any and all
remedies that are available to it at law or in equity.




          21.2 Tolling. All applicable statutes of limitation shall be tolled to the extent
permitted by Applicable Law while the dispute resolution procedures specified in this Section are
pending, and nothing herein shall be deemed to bar any Company or Vendor from taking such action as
such Company or Vendor may reasonably deem to be required to effectuate such tolling.





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     SECTION 22. TERMINATION AND EVENTS OF DEFAULT



          22.1 Termination by Cricket. Subject to Section 22.6 (“Continuing Obligations”),
Cricket may, at its sole option, terminate this Agreement, in its entirety, for convenience upon
thirty (30) days’ prior written notice at any time without any penalty or payment obligation,
except i) to the extent of any unfulfilled Purchase Commitment and ii) subject to Purchase Order
cancellation charges pursuant to Exhibit C.




          22.2 Vendor Events of Default. The following events each constitute a “Vendor
Event of Default”:





          (a) Vendor (i) files a voluntary petition in bankruptcy or has an involuntary petition
in bankruptcy filed against it that is not dismissed within sixty (60) days of such
involuntary filing, (ii) admits the material allegations of any petition in bankruptcy
filed against it, (iii) is adjudged bankrupt, (iv) is unable generally to pay its debts as
they mature, (v) makes a general assignment for the benefit of its creditors, or if a
receiver is appointed for all or a substantial portion of its assets and is not discharged
within sixty (60) days after his appointment, or (vi) Vendor commences any proceeding for
relief from its creditors in any court under any state insolvency statutes; or




          (b) Vendor violates any Applicable Laws or Applicable Permits which has a material
adverse effect on the business, financial condition or operations of any Company or on any
Products or Systems (“Material Adverse Effect”); or




          (c) Vendor consistently allows material Defects or Deficiencies to exist; or




          (d) Vendor fails to fulfill its obligations with respect to the satisfaction,
discharge or bonding of liens as set forth herein; or




          (e) Vendor abandons or ceases for a period in excess of thirty (30) days its
performance of the Work (except as a result of Force Majeure or a casualty which is fully
covered by insurance or as to which other provisions reasonably acceptable to Cricket are
being diligently pursued); or




          (f) Vendor assigns or subcontracts Work other than as provided for in this Agreement
which could reasonably be expected to result in a Material Adverse Effect; or




          (g) Vendor misses any Guaranteed Substantial Completion Date due solely to non or
delayed performance by Vendor, for any System by a period in



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excess of one hundred-fifty (150) days; provided that such failure to achieve such
date was not caused by (i) a Force Majeure event or (ii) any act or omission of any
Company; or iii) any third party not having contract privity with Vendor; or iv) any other
event out of Vendor’s complete control; or




          (h) Vendor otherwise consistently and materially breaches any provision of this
Agreement.



     22.3 Remedies.



          (a) Cricket may terminate this Agreement and/or the Purchase Commitments for a Vendor Event
of Default within thirty (30) days after the occurrence of any event described in Sections 22.2(a)
and (b) above. Prior to any termination pursuant to Section 22.2(c) through (h) above, Cricket
shall notify Vendor in writing of an event set forth in Section 22.2(c) through 22.2(h) above. If
Vendor does not commence and use diligent efforts to cure such event(s) within a commercially
reasonable time period, which period shall not be less than thirty (30) days of such notice,
Cricket may terminate this Agreement and/or the Purchase Commitments for a Vendor Event of Default.




          (b) In addition, Cricket may direct that Vendor assign its Subcontractor agreements, if
possible, to Cricket without any change of price or conditions therein or penalty or payment
therefor.




          22.4 Discontinuance of Work. Upon any notification of termination of this Agreement
by Cricket, Vendor shall immediately discontinue all of the Work under all Purchase Orders (unless
such notice of termination directs otherwise), and, as more fully set forth in Section 22.3,
deliver to Cricket copies of all data, drawings, specifications, reports, estimates, summaries, and
such other information, and materials as may have been accumulated by Vendor in performing the
Work, whether completed or in process, which Vendor would otherwise have been required to deliver
pursuant to this Agreement. Furthermore, Vendor shall assign, assemble and deliver to Cricket all
related purchase orders and Subcontractor agreements, if possible to assign.




          22.5 Payments. If Cricket terminates this Agreement, Vendor shall not be entitled to
receive further payment other than payments due and payable and for Work performed as of the date
of termination under this Agreement or any then-current Order and not subject to dispute prior to
such termination (provided that any such disputed amounts shall be paid by such
Purchaser when and if such dispute is in fact resolved).




          22.6 Continuing Obligations. Termination of this Agreement for any reason (i) shall
not relieve any Person of its obligations with respect to the confidentiality of the Proprietary
Information as set forth in Section 24.18, (ii) shall not relieve any Person of any obligation
which applies to it and which expressly or by implication survives termination, and (iii) except as
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the liability of any Person, shall not relieve any Person of any obligations or liabilities
for loss or damage to any other Person arising out of or caused by acts or omissions of such Person
prior to the effectiveness of such termination or arising out of its obligations as to portions of
the Work already performed or of obligations assumed by Vendor prior to the date of such
termination.




          22.7 Vendor’s Right to Terminate. In addition to and without prejudice to any other
rights or remedies of the Vendor in this Agreement or at law or in equity, Vendor shall have the
option to terminate this Agreement without any penalty or payment obligations, other than
undisputed payment obligations outstanding as of the date of any such termination pursuant to the
terms of this Agreement if:





          (a) Cricket (i) files a voluntary petition in bankruptcy or has an involuntary
petition in bankruptcy filed against it that is not dismissed within sixty (60) days of
such involuntary filing, (ii) admits the material allegations of any petition in bankruptcy
filed against it, (iii) is adjudged bankrupt, (iv) makes a general assignment for the
benefit of its creditors, or if a receiver is appointed for all or a substantial portion of
its assets and is not discharged within sixty (60) days after his appointment, or (v)
commences any proceeding for relief from its creditors in any court under any state
insolvency statutes, and any such filing, proceeding, adjudication or assignment as
described herein above shall otherwise materially impair Cricket’s ability to perform its
obligations under this Agreement; or




          (b) a Purchaser fails to make payments of undisputed amounts due to Vendor pursuant
to the terms of this Agreement which are more than sixty (60) days overdue,
provided that such failure has continued for at least thirty (30) days
after Vendor has notified such Purchaser and Cricket of its right and intent to so
terminate on account of such overdue amount; or




          (c) Any Company materially breaches any provision of this Agreement other than a
breach to which Section 22.7(b) is applicable, and after Vendor having provided thirty (30)
days’ prior written notice, such Company shall have failed (i) to commence to cure the
default within five (5) Business Days of delivery of such notice, and (ii) to diligently
pursue such cure.



     SECTION 23. SUSPENSION



     Each Purchaser may at any time issue a Change Order to Vendor to suspend all or any part of
the Work under any Purchase Order for such period of time as such Purchaser may reasonably
determine to be appropriate. Any such Change Order shall be handled in accordance with the
provisions of Section 9 hereof.



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     SECTION 24. MISCELLANEOUS



          24.1 Amendments. The terms and conditions of this Agreement may only be amended by
mutually agreed contract amendments. Each amendment shall be in writing and shall identify the
provisions to be changed and the changes to be made. Agreement amendments shall be signed by duly
authorized representatives of Vendor and Cricket.



          24.2 Company Liabilities. Vendor understands and agrees that no third party shall
guarantee or otherwise be in any way liable with respect to any obligations or liabilities of any
Company, except as otherwise expressly provided in this Agreement.



          24.3 Offset. Vendor hereby waives any right of offset of amounts owed by any Company
to Vendor pursuant to the terms of this Agreement.



          24.4 Assignment. Except as otherwise permitted herein, neither this Agreement nor
any portion hereof may be assigned by Cricket or Vendor without the express prior written consent
of the other. Cricket may, without the consent of Vendor, collaterally assign its rights hereunder
(including, but not limited to, all licenses with respect to the Software) to any or all parties
providing financing for (i) Cricket or (ii) any Affiliate of Cricket. If requested by Cricket,
Vendor shall within seven (7) calendar days of such request provide a written consent to any such
assignment. The foregoing rights and obligations are in addition to those set forth elsewhere in
this Agreement. Any attempted assignment in violation of the terms of this Agreement shall be null
and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of Cricket
and Vendor, their successors and permitted assigns. Vendor may assign this Agreement to a US
Affiliate only, provided such Affiliate shall be fully capable of fulfilling all of Vendor’s rights
and obligations hereunder, and provided further that Vendor shall remain fully responsible for (i)
all Vendor obligations hereunder, and (ii) for performance by such Vendor Affiliate.



          24.5 Notices. Except as otherwise expressly stated herein, all notices, requests,
demands and other communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission method; the day after it
is sent, if sent for next day delivery to a domestic address by recognized overnight delivery
service; and three (3) days after sending, if sent by certified or registered mail, postage
prepaid, return receipt requested. All notices shall be addressed as follows:


If to Cricket, or any Company:



Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, California 92121

Attention: Chief Executive Officer




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Telephone: (858) 882-6000

Facsimile: (858) 882-6080



With a copy to:

Sr. Vice President, General Counsel

10307 Pacific Center Court

San Diego, California 92121



Telephone: (858) 882-6000

Facsimile: (858) 882-6080



If to Vendor:



Lucent Technologies Inc.

67 Whippany Road

Whippany, New Jersey 07981

Attention: Sales Director – Cricket

Telephone: (973) 386-6478

Facsimile: (973) 386-6265



With a copy to:

Legal Department – Cricket

3400 W. Plano Parkway

M/S 2900-009 PLANO, TX 75075-8011

Phone: (972) 477-0646

Facsimile: (972) 477-1409



By written notice provided pursuant to this subsection, Cricket, any Company and Vendor may change
its designated addressee for purposes of giving notices under this Agreement.




          24.6 Governing Law. The laws of the State of California, without regard to
principles of conflict of laws, govern all matters arising out of or relating to this Agreement
including (without limitation), its interpretation, construction, performance and enforcement.
This Agreement shall be deemed to be made and executed in the State of California.




          24.7 Remedies. Subject to Section 18.3 (“Limitation of Liability”) hereof, Cricket,
ProCo, ANB, each other Company and Vendor shall be entitled to pursue any and all rights and
remedies that are available to it at law or in equity.




          24.8 Consent to Jurisdiction. Vendor (i) hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court located in the Southern District of California or
the state courts of the State of California located in San Diego, California for the purpose of any
action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this

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Agreement or relating to the subject matter hereof, (ii) hereby waives, to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or execution,
that-any such proceeding brought in one of the above-named courts is improper, or that this
Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby
agrees not to commence any action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the
subject matter hereof other than before one of the above-named courts nor to make any motion or
take any other action seeking or intending to cause the transfer or removal of any such action,
claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation to any court other than one of the above-named courts whether on the grounds of
inconvenient forum or otherwise. Vendor consents to service of process in any such proceeding in
any manner permitted by California law, and agrees that service of process by registered or
certified mail, return receipt requested, at its address specified herein.




          24.9 Compliance with Law. Cricket, each other Company and Vendor shall comply with
all Applicable Laws in the performance of this Agreement.




          24.10 Headings. The headings given to the Sections and subsections herein are
inserted only for convenience and are in no way to be construed as part of this Agreement or as a
limitation of the scope of the particular Section or subsection to which the title refers.




          24.11 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under such applicable law, but, if any
provision of this Agreement shall be held to be prohibited or invalid in any jurisdiction, the
remaining provisions of this Agreement shall remain in full force and effect and such prohibited or
invalid provision shall remain in effect in any jurisdiction in which it is not prohibited or
invalid.




          24.12 Waiver. Unless otherwise specifically provided by the terms of this Agreement,
no delay or failure to exercise a right resulting from any breach of this Agreement shall impair
such right or shall be construed to be a waiver thereof, but such right may be exercised from time
to time as may be deemed expedient. A waiver of any representation, warranty or covenant contained
in this Agreement shall be limited to the particular breach so waived and not be deemed to waive
any other breach under this Agreement.




          24.13 Public Statements and Advertising. (a) Neither Vendor nor any Company nor any
Affiliate of Vendor or Company, shall issue any public statement (or any private statement unless
required in the performance of the Work) relating to or in any way disclosing any aspect of the
Work or any System including the scope, the specific terms of



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this Agreement, extent or value of the Work or any System. Express written consent of Cricket is
required prior to the invitation of or permission to any reporter or journalist to enter upon the
System or any part thereof. Vendor agrees not to use for publicity purposes any photographs,
drawings or materials describing any System without obtaining the prior written consent of Cricket,
which consent shall not be unreasonably withheld. Cricket agrees not to use for publicity purposes
any photographs, drawings or materials describing Vendor’s products and services without obtaining
the prior written consent of Vendor, which consent shall not be unreasonably withheld, except that
any Company may refer to Vendor as a provider of Products and Services to any Company in any public
statement without Vendor’s consent. This subsection shall not prohibit (i) the provision of
necessary information to prospective Subcontractors and to Vendor’s or Vendor’s Affiliates’ or any
Company’s or Company’s Affiliates’ personnel, agents or consultants or (ii) other disclosures
which are required by Applicable Law, including without limitation federal and state securities
laws and regulations applicable to Vendor or Vendor’s Affiliates or any Company or Company
Affiliates provided that, in such event and to the extent reasonably feasible, each party shall
notify the other party of any such impending disclosure and allow the other party to request
redactions, protective orders or similar protections prior to such disclosure. Notwithstanding the
foregoing, disclosures made pursuant to federal and state securities laws and regulations shall not
require prior notice to the other party except with respect to the filing of the other party’s
Proprietary Information. All other such public disclosures by any Company or Vendor require the
prior written consent of the other Person.



          (b) Cricket and Vendor shall submit to the other proposed copies of all advertising (other
than public statements or press releases) wherein the name, trademark or service mark of the other
Person or its Affiliates is mentioned; and neither any Company nor Vendor shall publish or use such
advertising without the other Person’s prior written approval. Such approval shall be granted as
promptly as possible and shall not be unreasonably withheld. Cricket and Vendor acknowledge that
the obtaining of prior written approval for each such use pursuant to this subsection may be an
administrative burden. At the request of either Cricket or Vendor, Cricket and Vendor shall
establish mutually acceptable guidelines for the uses specified therein. Such guidelines shall be
subject to change from time to time at the reasonable request of either Cricket or Vendor.



          24.14 Records and Communications. Procedures for keeping and distributing orderly
and complete records of the Work and its progress are stated in the Exhibits. The procedures so
established shall be followed throughout the course of the Work unless Cricket and Vendor mutually
agree in advance in writing to revise the procedures. Procedures for communications among Cricket
and Vendor are stated in the Exhibits. The procedures so established shall be followed throughout
the course of the Work unless Cricket and Vendor mutually agree in advance and in writing to revise
such procedure.



          24.15 Ownership of Specifications. The Specifications shall constitute the
Proprietary Information of Cricket and Vendor to the extent of each such Person’s



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contribution to the Specifications. Neither Cricket nor Vendor shall use those parts of the
Specifications contributed by the other Person or any part of the Proprietary Information of the
other Person for any purpose other than fulfilling or exercising their respective rights or
obligations under this Agreement.



          24.16 Financing Requirements. Vendor acknowledges that the attainment of financing
for construction of Systems may be subject to conditions that are customary and appropriate for the
providers of such financing. Therefore, Vendor 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 System) which do not materially modify the scope of
Vendor’s Work in order for any Company to obtain such financing. In the event that any such
amendment or modification materially increases Vendor’s risk or costs hereunder, Cricket and Vendor
shall negotiate in good faith to adjust pricing matters, 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.



          24.17 Cricket Review, Comment and Approval. To the extent that various provisions of
this Agreement provide for any Company’s review, comment, inspection, evaluation, recommendation or
approval, Cricket may at its option do so in conjunction or consultation with Vendor. To the
extent that this Agreement requires any Company to submit, furnish, provide or deliver to Vendor
any report, notice, Change Order, request or other items, Cricket may at its option and upon
written notice to Vendor designate a representative to submit, furnish, provide or deliver such
items as the Company’s agent therefor. To the extent that various provisions of this Agreement
provide that any Company may order, direct or make requests with respect to performance of the Work
or is provided access to the System sites or any other site, Cricket may at its option and upon
written notice to Vendor authorize a representative to act as the Company’s agent therefor. Upon
receipt of such notice, Vendor shall be entitled to rely upon such authorization until a
superseding written notice from Cricket is received by Vendor.



          24.18 Confidentiality. (a) All information which is identified as proprietary or
confidential by the disclosing Person, including without limitation all oral and written
information (including, but not limited to, determinations or reports by arbitrators pursuant to
the terms of this Agreement), disclosed to the other Person is deemed to be confidential,
restricted and proprietary to the disclosing Person (hereinafter referred to as “Proprietary
Information”). Cricket and Vendor agree to use the Proprietary Information received from the
other Person only for the purpose of this Agreement. Except as specified in this Agreement, no
other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, or any
other intellectual property rights are implied or granted under this Agreement or by the conveying
of Proprietary Information between the parties. Proprietary Information supplied is not to be
reproduced in any form except as required to accomplish the intent of, and in accordance with the
terms of, this Agreement. The receiving Person shall provide the



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same care to avoid disclosure or unauthorized use of Proprietary Information as it provides to
protect its own similar proprietary information but in no event shall the receiving Person fail to
use reasonable care under the circumstances to avoid disclosure or unauthorized use of Proprietary
Information. All Proprietary Information shall be retained by the receiving Person with access
limited to only such of the receiving Person’s employees, subcontractors or agents who need to know
such information for purposes of this Agreement and to such third parties as the disclosing Person
has consented to by prior written approval. All Proprietary Information, unless otherwise specified
in writing (i) remains the property of the disclosing Person, (ii) shall be used by the receiving
Person only for the purpose for which it was intended, and (iii) such Proprietary Information,
including all copies of such information, shall be returned to the disclosing Person or destroyed
after the receiving Person’s need for it has expired or upon request of the disclosing Person, and,
in any event, upon termination of this Agreement. At the request of the disclosing Person, the
receiving Person shall furnish a certificate of an officer of the receiving Person certifying that
Proprietary Information not returned to disclosing Person has been destroyed. For the purposes
hereof, Proprietary Information does not include information which:




	 	(i)	 	is published or is otherwise in the public domain through no
fault of the receiving Person at the time of any claimed disclosure or
unauthorized use by the receiving Person;
	 
	 	(ii)	 	prior to disclosure pursuant to this Agreement is properly
within the possession of the receiving Person as evidenced by reasonable
documentation to the extent applicable;
	 
	 	(iii)	 	subsequent to disclosure pursuant to this Agreement is
lawfully received from a third party having rights in the information without
restriction of the third party’s right to disseminate the information and
without notice of any restriction against its further disclosure;
	 
	 	(iv)	 	is independently developed by the receiving Person or is
otherwise received through parties who have not had, either directly or
indirectly, access to or knowledge of such Proprietary Information;
	 
	 	(v)	 	is transmitted to the receiving Person after the disclosing
Person has received written notice from the receiving Person after termination
or expiration of this Agreement that it does not desire to receive further
Proprietary Information;
	 
	 	(vi)	 	is obligated to be produced under order of a court of
competent jurisdiction or other similar requirement of a Governmental Entity,
so long as the Person required to disclose the information provides the other
Person with prior notice of such order or requirement and its cooperation to
the extent reasonable in preserving its confidentiality; or




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	 	(vii)	 	the disclosing Person agrees in writing is free of such
restrictions.





          (b) Notwithstanding anything herein to the contrary, (i) any Company may disclose the
Proprietary Information of Vendor to any other Company provided that the disclosing Company
notifies the receiving Company of the nature of the Proprietary Information; and (ii) Vendor may
disclose Proprietary Information of any Company to another Company to perform Vendor’s obligations
under this Agreement.



          (c) Notwithstanding anything herein to the contrary, Cricket may disclose the Proprietary
Information of Vendor to financial institutions and insurance companies to the extent necessary or
desirable for Cricket to obtain or maintain financing or insurance so long as, in either case, the
recipients are under an obligation of confidentiality to Cricket, which obligation would extend to
the Proprietary Information of Vendor. This subsection shall not prohibit such other disclosures
which are required by Applicable Law, including without limitation federal and state securities
laws and regulations applicable to Vendor or any Company provided that, in such event and to the
extent reasonably feasible, each party shall notify the other party of any such impending
disclosure and allow the other party to request redactions, protective orders or similar
protections prior to such disclosure. Notwithstanding the foregoing, disclosures made by a Company
or Company Affiliates pursuant to federal and state securities laws and regulations shall not
require prior notice to the other party except with respect to the filing of the other party’s
Proprietary Information



          (d) Because damages may be difficult to ascertain, Cricket and Vendor agree, without limiting
any other rights and remedies specified herein, an injunction may be sought against the Person who
has breached or threatened to breach this subsection. Cricket and Vendor each represents and
warrants that it has the right to disclose all Proprietary Information which it has disclosed to
the other Person pursuant to this Agreement, and Cricket and Vendor each agrees to indemnify and
hold harmless the other Person from all claims by a third party related to the wrongful disclosure
by the Person against who indemnification is sought of such third party’s proprietary information.



          24.19 Entirety of Agreement; No Oral Change. This Agreement and the Specifications
and Exhibits hereto constitute the entire contract between Cricket and Vendor with respect to the
subject matter hereof, and supersede all proposals, oral or written, all previous negotiations, and
all other communications between Cricket and Vendor with respect to the subject matter hereof. No
modifications, alterations or waivers of any provisions herein contained shall be binding on an
Cricket and Vendor unless evidenced in writing signed by duly authorized representatives of such
Cricket and Vendor as set forth in this Agreement.



          24.20 Relationship of the Parties. Nothing in this Agreement shall be deemed to
constitute any Company as a partner, agent or legal representative of Vendor, or Vendor as a
partner, agent or legal representative of any Company or to create any fiduciary




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relationship between any Company and Vendor. Vendor is and shall remain an independent
contractor in the performance of this Agreement, maintaining complete control of its personnel,
workers, Subcontractors and operations required for performance of the Work. This Agreement shall
not be construed to create any relationship, contractual or otherwise, between any Company and any
Subcontractor, except to establish Cricket as a third party beneficiary of Vendor’s contacts with
Subcontractors as provided herein. With respect to the Products and Services received by that
Company, each Company is an intended third party beneficiary of all of Vendor’s covenants and
obligations hereunder and all rights of Cricket, ProCo, ANB and/or the Companies hereunder.



          24.21 Discretion. Notwithstanding anything contained herein to the contrary, to the
extent that various provisions of this Agreement call for an exercise of discretion in making
decisions or granting approvals or consents, the Cricket and Vendor shall be required to exercise
such discretion, decision or approvals and in good faith.




          24.22 No Liability. Other than Cricket and ProCo, no past, present or future limited
or general partner in any Company, no parent or other affiliate of any Company, and no officer,
employee, servant, executive, director, agent or authorized representative of any of them shall be
liable by virtue of any direct or indirect ownership interest or other relationship for payments
due under this Agreement or for the performance of any obligation, or breach of any representation
or warranty made by Cricket or ProCo hereunder.




          24.23 Attachments and Incorporations. All Exhibits attached hereto are hereby
incorporated by reference herein and made a part of this Agreement with the same force and effect
as though set forth in their entirety herein.




          24.24 Integration. Conflicts The terms and conditions of this Agreement, including
any Exhibits, form the complete and exclusive agreement between Cricket and Vendor and replace any
oral or written proposals, statement of works, correspondence or communications regarding the
subject matter hereof, including the Previous Agreement, except i) for any terms and conditions
that by their nature or their terms shall survive expiration or termination of the Previous
Agreement; and, ii) the terms of the Previous Agreement will continue to apply to any outstanding
Purchase Orders and unresolved claims thereunder. The RTU License under the Previous Agreement will
continue uninterrupted subject to i) the terms of Section 11 hereof; and ii) payment of any RTU
License fees otherwise due under the Previous Agreement or as modified under this Agreement based
on capacity or usage criteria, or as otherwise mutually agreed between Vendor and Cricket, and all
Warranty Periods and the Survival clause of the Previous Agreement will survive.




          In the event of any conflict or inconsistency among the provisions of the main body of this
Agreement and the Exhibits and other documents attached hereto and incorporated herein, such
conflict or inconsistency shall be resolved by giving precedence to the main body of this Agreement
first, and thereafter to the Exhibits and Specifications.




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          24.25 References to Certain Sources. Reference to standard specifications, manuals
or codes of any technical society, organization or association or to the laws or regulations of any
Governmental Entity, whether such reference is specific or by implication, by this Agreement, means
the latest standard specification, manual, code, laws or regulations in effect at the time of such
reference, except as may be otherwise specifically agreed to by Cricket. However, no provision of
any reference, standard, specification, manual or code (whether or not specifically incorporated by
reference in this Agreement) shall be effective to change the duties and responsibilities of any
party from those set forth in this Agreement; provided that nothing contained in
this Agreement shall require any Company or Vendor to violate then existing and enforceable
Applicable Laws.




          24.26 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.




          24.27 Cooperation. Vendor acknowledges that the Companies may have one or more third
party vendors, contractors and other personnel engaged to provide work, equipment or services in
connection with or related to this Agreement. Vendor agrees to reasonably communicate and
cooperate with such third parties at all times and, at the request of any Company, coordinate
Vendor’s and Vendor’s Subcontractors’ activities hereunder with the activities of such third
parties.




          24.28 Survival. Notwithstanding any expiration or termination of this Agreement, the
provisions of Sections 1, 2.4, 2.5, 3.7, 4.8, 10, 11, 13, 16, 18, 24.8, 24.18, 24.22 and 24.24 and
any other provisions that based on their content are intended to survive shall continue in full
force and effect.




          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.




VENDOR:




LUCENT TECHNOLOGIES INC.

a Delaware corporation




	 	 	 	 	 
	By:

	 	/s/ Stephen R. Marino
 

Name: Stephen R. Marino
	 	 
	 

	 	Title: Sales VPCE President	 	 






CRICKET:




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CRICKET COMMUNICATIONS, INC.,

a Delaware corporation




	 	 	 	 	 
	By:

	 	/s/ Glenn T Umetsu
 

Name: Glenn T. Umetsu
	 	 
	 

	 	Title: EVP and ETO	 	 






ANB:




ALASKA NATIVE BROADBAND 1 LICENSE, LLC

a Delaware limited liability company




	 	 	 	 	 
	By:

	 	/s/ Glenn T. Umetsu
 

Name: Glenn T. Umetsu
	 	 
	 

	 	Title: EVP and ETO	 	 






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Cricket Communications, Inc.




Exhibit A — Pricing Notes/Conditions and Assumptions




1 PRICING FOR PRODUCTS AND SERVICES




1.1 Pricing



Vendor shall provide the Products and Services at the prices, discounts and incentives as
described in Exhibit A — Pricing Summary Workbook (the “Pricing Summary”). Failure to
satisfy the Purchase Commitments on or prior to the dates established for satisfaction of
the Purchase Commitments pursuant to Section 5 of the Agreement may result in additional
amounts due to Vendor as described in Section 2.3 of this Exhibit A.



1.1.1 AWS New Market Incentive Credits for Initial Systems



Vendor shall provide to Purchaser an incentive discount up to [***]
to be applied against the pricing for AWS New Markets. The credits shall be
earned upon issuance of Vendor’s invoice with respect to Purchase Orders for BTS’s for
Initial Systems for an AWS New Market. Each such invoice will reference the respective
Purchase Order and Vendor will concurrently issue a credit memo for the applicable earned
credit and that credit will be applied against the payment due with respect to such
Purchase Order or any other open accounts receivable for any Purchaser (as designated by
Purchaser) relating to AWS New Markets. Incentive discounts shall be earned in
accordance with the Pricing Summary. Failure to satisfy the Purchase Commitments on or
prior to the dates established for satisfaction of the Purchase Commitments pursuant to
Section 5 of the Agreement may result in additional amounts due to Vendor as described in
Section 2.3 of this Exhibit A.



1.2 Additional Incentives



1.2.1 Volume Purchase Incentive Credits (“VPI Credits”)



At such time during the initial [***] term of the Agreement that the Cumulative Net Spend
(as defined below) is at least [***], Purchaser shall earn [***] in VPI Credits under
this Agreement. For every additional [***] in Cumulative Net Spend thereafter through a
Cumulative Net Spend of [***], Purchaser shall earn an additional [***] in VPI Credits
under this Agreement. For every additional [***] Cumulative Net Spend beyond a
Cumulative Net Spend of [***], Purchaser shall earn an additional [***] in VPI Credits.





 




			
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VPI Credits earned may be applied by any Purchaser towards any then outstanding invoices from
Vendor, excluding purchases for New Markets at Initial System prices. Vendor shall timely
apply such VPI Credits to invoices as directed by Purchaser. VPI Credits shall expire unless
applied against an invoice within [***]
after being earned, provided that in the event the Agreement expires or
terminates prior to the end of such [***] period, such VPI Credits shall not expire until
[***] after the expiration or termination of the Agreement.



“Cumulative Net Spend” means the aggregate amounts paid by Purchasers for purchases of
(i) all Products for Existing Markets, (ii) all Products for AWS New Markets except for
Products purchased at Initial System prices, (iii) Engineering Services, and (iv)
Installation Services, minus any taxes or transportation charges included in such
amounts, and minus all credits earned.



1.3 AWS Initial Systems Configuration



Included Initial System Functionality



The following applications and functionality are included in the pricing for Initial
Systems:



[***]




Such pricing also includes all elements directly related to Vendor’s MSC, IP Core, and
BTS Products required to provide this functionality for New Markets. Where applicable,
all configuration engineering, Installation, Integration and project management services
will be provided at the pricing indicated in the Pricing Summary.



Pricing does not include [***] not explicitly identified as part of the Initial System
per the Pricing Summary.



1.4 MSC Upgrades in Existing Markets



The MSC in an Existing Market to which the BTS’s of an AWS Initial System will be
backhauled will be updated with the functionality described in Section 1.3 above at the
Initial System pricing to the extent such functionality is added to serve the AWS Initial
System; however if Purchaser wishes to purchase such functionality to serve the Existing
Market, the pricing will be as stated below in Section 2.



2 EXISTING PCS MARKETS




2.1 Technology Evolution Purchases.





 




			
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Pricing for Technology Evolution shall be as follows:



[***]: Pricing shall be at the Standard Discount Pricing as shown in the Pricing
Summary, except that with respect to all Purchase Orders issued
during [***] immediately following the Effective Date of the Agreement, Vendor will grant
Purchaser an additional [***]% off the Standard Discount Pricing on all Equipment and
Software required to provide [***] functionality. Thereafter, pricing will revert back
to Standard Discount Pricing.



[***]: Pricing shall be at the Standard Discount Pricing as shown in the Pricing
Summary, except that with respect to all Purchase Orders issued during [***] immediately
following the Effective Date of the Agreement, Vendor will grant Purchaser an additional
[***]% off the Standard Discount Pricing on all Equipment and Software required to
support [***] functionality in Existing Markets. Thereafter, pricing will revert back to
Standard Discount Pricing.



[***] and [***]: Vendor shall provide a [***]% discount on [***] License fees.
In addition, Vendor will establish a [***] at the discounted price of [***] for up to a
maximum of [***] provided. This pricing will remain in effect until the end of [***]
from the Effective Date of this Agreement, at which time pricing will revert back to
Standard Discount Pricing.



[***]: Vendor will provide a [***]% discount on [***] Equipment and Software
upgrades for Existing Markets where the upgrade is required. If required, Purchaser will
submit Purchase Orders for Engineering, Installation, and Integration of [***] upgrades
at the rate of [***] per existing [***] being upgraded. This [***]% discount will be
effective only through [***]. Thereafter, pricing will revert back to Standard Discount
Pricing.



[***]: For every [***] BTS’s where Purchaser purchases the software RTU for [***] at
Standard Discounted Pricing, Vendor will provide a [***] BTS [***] RTU at no additional
cost. This offer will be valid for both Existing Markets and AWS New Markets for [***]
from the Effective Date of this Agreement, at which time pricing will revert back to
Standard Discount Pricing. This offer pricing is for [***], for all BTS’s for which
[***] was provided under this offer.



MLPPP: Pricing [***].



Additional Products may be added to the list of Technology Evolution as mutually agreed
by Vendor and Cricket.



2.2 Additional Offerings



2.2.1 Annual Maintenance Fees ([***] from Commercial Launch)





 




			
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Cricket Communications/Alcatel-Lucent Proprietary and Confidential Information




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For each Initial System, Vendor shall [***] to Company all of the Equipment and Software
maintenance and support Services described in Exhibit H, (excluding RES) for
[***] period following Commercial Launch of such Initial System.



2.2.2 [***] Annual Maintenance Fees ([***])



Vendor shall provide a [***] incentive discount for ECPs in [***]. Purchaser shall
only pay the Annual Maintenance Fees for [***] ECP in Denver and [***] ECP in [***],
yet receive [***]; provided however, should (i) the Purchase Commitment not be
satisfied in full within the time periods established for satisfaction of such
Purchase Commitment, or (ii) Cricket awards an AWS New Market previously awarded to
Vendor to a Vendor competitor, then Vendor may invoice Purchaser for the incentive
discount portion of the [***] Annual Maintenance Fee as described in Section 2.3
below.



2.3 Purchase Commitment True-Up



If the Purchase Commitment is not satisfied in full within the time periods established
for satisfaction of such Purchase Commitment, then Vendor may invoice Purchaser
additional amounts not to exceed the amounts as determined using the true-up calculation
spreadsheet (Commitment True-Up Calculator — 2007-05-17v4.xls) previously provided by
Vendor to Cricket on May 15, 2007) (the “Commitment True-up Calculator”) corresponding to
the actual level of the Purchase Commitment achieved. Vendor shall use commercially
reasonable judgment in exercising this provision, including reviewing and considering
Purchaser’s overall purchases by Product mix, and Cumulative Net Spend during the initial
[***] period of the Agreement.



The following is a sample calculation from the Commitment True-up Calculator showing the
maximum amount that the Vendor may invoice Purchaser for assuming that (i) [***] of the
[***] AWS Commitment has been satisfied, and (ii) [***] of the [***] Technology Evolution
Commitment has been satisfied.



[***]




3 INTEGRATION ITEMS FROM PRIOR AGREEMENT




3.1 Managed Purchased System Capacity (formerly BHCA RTU’s)



[***]




[One Page Of Technical Information Redacted Pursuant To A Confidential Treatment Request]





 




			
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3.2 MPSC Pricing



Vendor will [***] Feature for all Existing and New Markets at no charge upon
execution of this Agreement.



Subject to Section 5.2.8 of the Agreement, when a Purchaser’s ECP exceeds [***] BHCAs,
Purchaser will be required to make a payment in the amount [***] for each such ECP to
Vendor. Upon receiving the Purchase Order for Purchased System Capacity, Vendor
[***].



Purchased System Capacity RTU’s do not include any system upgrades which may be
required to achieve stated level of Purchased System Capacity provided.



4 ANNUAL MAINTENANCE FEES




4.1 Annual Maintenance Fees — Existing Markets



Annual Maintenance Fees, as defined in the Agreement, for Existing Markets are set forth
in the Pricing Summary, in the tab entitled “Annual Maintenance.” Pricing is based on
the number of ECPs as described in such tab of the Pricing Summary.



The following table shows the currently existing MSC locations, number of physical ECP’s,
and will be used to [***] for Existing Markets.



[***]




In the event of any consolidation of MSCs in Existing Markets, the Annual Maintenance
Fees shall be adjusted accordingly such that the ECP being eliminated will be removed
from the fee schedule and the fees for the remaining ECP will increase to account for the
additional number of BTS’s and other functionality being supported. Pricing with respect
to such additional BTS’s and other functionality supported will be in accordance with the
“Maintenance Unit Pricing” tab of the Pricing Summary.



4.2 Annual Maintenance Fees —  New Markets



Annual Maintenance Fees for New Markets are set forth in the Pricing Summary in the tab
entitled “Annual Maintenance” which assumes deployment of the New Markets as configured in
Exhibits A and R. Notwithstanding anything to the contrary in any Exhibit, all Annual
Maintenance Fees for each Initial System in a New Market will be waived for the first [***]
after Commercial Launch of such Initial System. Thereafter, Annual Maintenance Fees
shall be billed quarterly in advance.





 




			
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Cricket Communications/Alcatel-Lucent Proprietary and Confidential Information




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4.3 Annual Maintenance Fees — Adjustments



For all Expansions in Existing Markets after the Effective Date, and for all Expansions
in New Markets, Annual Maintenance Fees will be determined by taking an actual count of
the Pricing Units within each Market multiplied by the annual Pricing Unit prices as set
forth in the Maintenance Unit Pricing tab of the Pricing Summary. Such counts will be
taken quarterly in arrears, with adjustments reflected for any increase or decrease in
Pricing Units in the following quarterly billing; provided, however, that in accordance
with Section 4.2 hereof, all Annual Maintenance Fees for each Initial System in a New
Market will be waived for the first
[***] after Commercial Launch of such
Initial System.



5.0 OPTIONAL SOFTWARE FEATURES (NOT INCLUDED IN PICK-A-PACK):




RTU License fees associated with Optional Software Features are included in Exhibit B
(Tab 5) as well as in the List Price provided in the Vendor’s Price Reference Guide
periodically provided to all customers of Vendor.



[***]




[Eight Pages of Pricing Information Have Been Removed Pursuant To A Confidential Treatment
Request]





 




			
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and filed separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.





Cricket Communications/Alcatel-Lucent Proprietary and Confidential Information




6









 








Exhibit B

Alcatel — Lucent Technologies — CDMA

PCS Price Reference Guide




[***]




[One Hundred And Twenty Pages Of Pricing Information Omitted Pursuant To A Confidential Treatment
Request]





 




			
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EXHIBIT C




Cricket Communications, Inc.




System Equipment Purchase Agreement




STANDARD INTERVALS




[***]




ORDERING PROCEDURES




Vendor shall provide to Purchaser orderable quotations (“Quote(s)”) for all Products, Software and
Services to be furnished by Vendor. Purchaser may submit to Vendor a request for quote for a
future potential Purchase Order. With respect to Equipment, Software and Services, Vendor shall use
commercially reasonable efforts to respond in writing with its Quote(s) within a mutually agreed to
time of Vendor’s receipt of the request.




	 	1.0	 	Purchase Orders shall be in writing, transmitted electronically or in any other
manner mutually agreed to by the parties and shall specify:






	 	(a)	 	description of Equipment, Software and/or Services, inclusive
of any numerical/ alphabetical identifications, ordering codes referenced in
the Vendor’s documentation;
	 
	 	(b)	 	requested delivery, completion and/or in-service date as
applicable;
	 
	 	(c)	 	location to which the Equipment or Software are to be shipped
and/or location at which Services are to be performed;
	 
	 	(d)	 	location to which invoices shall be rendered for payment;
	 
	 	(e)	 	Cricket’s or ProCo’s Purchase Order number;
	 
	 	(f)	 	prices to match Vendor’s Quotation, including reference to
Vendor’s Quotation number;
	 
	 	g)	 	Vendor/Cricket Contract number, including Purchaser contact
info (phone #, name of issuer and authorized manual or electronic signature;
	 
	 	(h)	 	a list and description of the Software to be licensed if
applicable; including the description, serial number, if known, and location of
the processor for which Software is being furnished.






	 	1.1	 	Acceptance and Acknowledgement of Purchase Orders:






	 	1.1.1	 	All Purchase Orders:
	 
	 	 	 	Vendor shall acknowledge receipt of Purchaser’s Purchase Order within ten
(10) workdays of receipt of such Purchase Order. Vendor shall accept or
reject in writing Purchaser’s requested delivery and/or completion date,
within three (3) weeks from receipt of Purchase Order. In the event Vendor
fails to accept or reject any such requested delivery or completion date
within the aforesaid period, such dates shall be deemed accepted.






	 	1.2	 	Engineer, Furnish & Install (“EF&I); Furnish and Install (F&I); Engineer &
Furnish Purchase Orders






	 	1.2.1	 	Should Purchaser require Vendor’s acceptance or rejection of
requested delivery and/or completion dates in less three (3) weeks, Vendor
shall use all reasonable efforts to respond in the interval requested by
Purchaser.
	 
	 	1.2.2	 	In the event that Vendor cannot accept the specified delivery
and/or completion date, Purchaser may cancel said Purchase Order in writing
without penalty or obligation of any kind or negotiate a new delivery and/or
completion date mutually acceptable to both







 




			
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	 	 	 	parties, which date shall be acknowledged in writing by Vendor within ten
(10) workdays of such agreement. Such cancellation shall not be deemed to
relieve Purchaser of its obligations to source subsequent Purchase Orders
for Equipment and Software on Vendor in accordance with the Contract
provided that the delivery and/or completion commitment which Vendor is
willing to make is consistent with Vendor’s then current standard interval
for the Equipment, Software and Services.
	 
	 	1.2.3	 	Should Purchaser’s requested delivery and/or completion dates
on an Purchase Order compress the equipment engineering or installation
interval beyond that referenced in Vendor’s associated Firm Price Quotation,
upon written agreement by Purchaser, Vendor shall be authorized to render
additional billing for equipment engineering and installation premium time
incurred or additional resources incurred, as required to improve the quoted
equipment engineering and installation intervals to match Purchaser’s requested
dates or mutually agreeable alternative dates.
	 
	 	1.2.4	 	Changes:
	 
	 	 	 	All change orders must be received with a revised Purchase Order from
Purchaser showing any price or O/I code changes. All Purchase Order
requirements listed above are still required on this revised Purchase Order.






	 	1.3	 	Furnish Only Purchase Orders:






	 	1.3.1	 	In the event that Vendor cannot meet the requested delivery
date, Purchaser may cancel said Purchase Order in writing without penalty or
obligation of any kind or negotiate a new delivery and/or completion date
mutually acceptable to both parties, which date shall be acknowledged in
writing by Vendor within ten (10) workdays of such agreement. Such cancellation
shall not be deemed to relieve Purchaser of its obligations to source the
ordered Equipment and Software on Vendor in accordance with the Contract
provided that the delivery and/or completion commitment which Vendor is willing
to make is consistent with Vendor’s then current standard interval for the
Equipment, Software and Services.
	 
	 	1.3.2	 	Changes:
	 
	 	 	 	All change orders must be received with a revised Purchase Order from
Purchaser showing any price or O/I code changes. All Purchase Order
requirements listed above are still required on this revised Purchase
Order.






	 	1.4	 	Installation/Services Only Purchase Orders:






	 	1.4.1	 	Should Purchaser’s requested completion date on an Purchase
Order compress the installation interval beyond that referenced in Vendor’s
associated Firm Price Quotation, upon written agreement by Purchaser, Vendor
shall be authorized to render additional billing for installation premium time
incurred or additional resources incurred, as required to improve the quoted
installation intervals to match Purchaser’s requested dates or mutually
agreeable alternative dates.
	 
	 	1.4.2	 	Change Purchase Orders:
	 
	 	1.4.2.1	 	Any changes to an original Purchase Order and any resulting adjustment,
including but not limited to schedules and price, shall be mutually agreed upon
and subsequently detailed in a written Change Purchase Order referencing the
original Purchase Order. Purchaser and/or Vendor as appropriate shall provide
supplementary documentation indicating all changes.
	 
	 	1.4.2.2	 	Supplemental Authorization Work Purchase Orders “SAWOs” is Vendor’s term for
additional work it undertakes at the specific request of an employee of
Purchaser,





LUCENT/CRICKET PROPRIETARY INFORMATION




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	 	 	 	typically under a mutually agreed to statement of work. Purchaser agrees
that upon written authorization of a SAWO by any of Purchaser’s employees,
Vendor shall perform the supplemental work, provided however, that Vendor
forwards a copy of said written authorization to Purchaser’s engineering
department within ten (10) business days.






	 	1.5	 	Purchase Ordering Address:





Purchase Orders placed by Owner hereunder shall be sent to:



Lucent Technologies Inc.

Attn: Purchase Order Entry

800 Northpoint Parkway

Alpharetta, Georgi 30005



Purchase Order Entry Contacts:



Purchase Order Management contacts are [***]. Both are located at 800 Northpoint Parkway in
Alpharetta, GA 30005.




	2.0	 	Expediting of Purchase Orders:
	 
	 	 	Purchaser and Vendor will work together to expedite all aspects of an Purchase Order in the
event Purchaser requests an Purchase Order be expedited.
	 
	3.0	 	Purchase Order Hold, Purchase Order Termination






	 	3.1	 	Purchaser may, in accordance with Section 24.5 entitled NOTICES, suspend, hold
or terminate any Purchase Order or portion thereof except with respect to Equipment or
Software which have already shipped or Services which have already been performed.
Purchaser may place an Purchase Order on hold for thirty (30) calendar days. A hold,
automatically converts to an Purchase Order cancellation after thirty (30) days.






	 	3.1.1	 	EF&I, E&F and F&I Purchase Orders
	 
	 	 	 	For purposes of this Section, “price” represents equipment engineering and
material charges; and “shipping interval” represents intervals stated above.
In the event Purchaser terminates an EF&I E&F or F&I Purchase Order or
portion thereof, the following termination charges will apply:





	 	 	 	 	 
	     Percent of Shipping	 	 
	               Interval	 	Termination Charge
	up to 25%
	 	 	[***]	 
	26% to 50%
	 	 	[***]	 
	51% to 75%
	 	 	[***]	 
	greater than 76%
	 	 	[***]	 








 




			
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separately with the Commission.
Confidential treatment has been
requested with respect to the omitted portions.





LUCENT/CRICKET PROPRIETARY INFORMATION




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	 	3.1.2.	 	Furnish Only Purchase Orders
	 
	 	 	 	For purposes of this Sub-Section, “price” represents price for Equipment or
Software for Furnish Only Purchase Orders; and “shipping interval”
represents the elapsed time between the date Purchaser’s Purchase Order is
received by Vendor and the committed date of shipment from Vendor’s shipping
location. Should the Purchaser terminate Furnish Only Purchase Orders during
the committed interval, the following table will determine termination
charges. The word “committed” in this Section means the mutually agreed upon
date.





	 	 	 	 	 
	     Percent of Committed	 	 
	        Shipping Interval	 	Termination Charge
	Up to 10%
	 	 	[***]	 
	11% to 20%
	 	 	[***]	 
	21% to 40%
	 	 	[***]	 
	41% to 60%
	 	 	[***]	 
	61% to 80%
	 	 	[***]	 
	81% to 100%
	 	 	[***]	 







	 	3.2	 	All termination charges described above in this Section will take into
consideration reusability of Equipment by Vendor.







 




			
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LUCENT/CRICKET PROPRIETARY INFORMATION




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VENDOR CHANGE NOTICES TO AN ACCEPTED ORDER





	1.0	 	Notwithstanding anything contained herein, Vendor will first use its standard
change notification process used to notify all affected customers with respect to
product changes, modifications, or substitutions initiated by Vendor. Vendor shall use
commercially reasonable effort to notify Purchaser in writing sixty (60) days prior to
their effective dates. If such a change constitutes an emergency or safety issue,
Vendor shall notify Purchaser as promptly as commercially feasible.
	 
	1.1	 	All notifications of such changes to accepted Purchase Orders shall be provided
at no charge and be disseminated by Vendor in accordance with distribution lists
provided by Purchaser and shall contain the following information:






	 	1.1.1	 	Vendor Information: Vendor’s name, address, technical contact
name and phone number.
	 
	 	1.1.2.	 	Equipment Change Notice Number: Number conforming to a single sequential
numbering scheme used by Vendor.
	 
	 	1.1.3	 	Issue Date of Change: Date Equipment Change Notice is
transmitted.
	 
	 	1.1.4	 	Equipment Description: Description of the product affected
(e.g., Line Card or 24 foot aluminum ladder).
	 
	 	1.1.5	 	New Equipment Code: Unique identity of the changed product
(e.g., Circuit Pack CP 11101, Series 1, List 4).
	 
	 	1.1.6	 	Old Equipment Code: Unique identity of the product being
changed. (e.g., Circuit Pack CP 11101, Series 1, List 3).
	 
	 	1.1.7	 	New Purchase Order Code(s): The alpha-numeric PID code(s)
assigned to the changed product, if applicable.
	 
	 	1.1.8	 	Old Purchase Order Code(s): PID codes of all equipment
associated with this change (see Item 1.1.9), if applicable.
	 
	 	1.1.9	 	Associated products or changes Affected: Coordinated product
changes that must be applied in conjunction with, or prior to, this change.
	 
	 	1.1.10.	 	Drawing Number: The circuit (schematic) drawing number and issue that
incorporates the change (e.g., SD 11101-01, Issue 11).
	 
	 	1.1.11	 	Change Classification: Safety or general product change.
	 
	 	1.1.12	 	Classification Substantiation: Details of why the Proposed Classification is
appropriate.
	 
	 	1.1.13	 	Reason For Change: Detailed explanation of why the change is necessary, for
example: what are the symptoms of the condition being corrected?
	 
	 	1.1.14	 	Description of Change: Installation details of change, for example:






	 	a.	 	What is to be changed?
	 
	 	b.	 	How is it to be changed?
	 
	 	c.	 	How can change be tested/verified?






	 	1.1.15	 	Effect of Change: Description of the effect of the change on:





LUCENT/CRICKET PROPRIETARY INFORMATION




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	 	a.	 	Service
	 
	 	b.	 	Transmission
	 
	 	c.	 	Traffic
	 
	 	d.	 	Maintenance
	 
	 	e.	 	Reliability
	 
	 	f.	 	Commercial Specifications
	 
	 	g.	 	Control Specifications
	 
	 	h.	 	Safety






	 	1.1.16	 	Material Affected: Apparatus, wiring, circuit packs, etc., affected by
change.
	 
	 	1.1.17	 	Documentation Affected: List of associated drawings, programs, practices,
manuals, nomenclature etc. affected by the change.
	 
	 	1.1.18	 	Vendor Implementation Date: Date after which all newly manufactured Equipment
and/or Software will incorporate the change.
	 
	 	1.1.19	 	Modification Expiration Date: Date after which Vendor terminates
responsibility for applying the change; i.e. providing modification material,
etc., on a non-billable basis.
	 
	 	1.1.20	 	Modification Location: Vendor recommendation for field or factory
installation of change.
	 
	 	1.1.21	 	Location and Quantity of Equipment (if the Vendor has these records): The
location and quantity of working or spare equipment, in the hands of the
Purchaser, that requires the change.
	 
	 	1.1.22	 	Implementation Schedule: Proposed schedule.





LUCENT/CRICKET PROPRIETARY INFORMATION




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Exhibit D









Cricket Communications, Inc.

Typical MSC Deployment Timeline




Standard Interval Disclaimer




Vendor reserves the right to modify, amend or change Vendor’s
Standard Intervals at any time provided it is doing so in the course of its normal business for all
customers. Vendor shall provide updated Standard Interval Exhibits to this Agreement from time to
time in the event of any significant modifications, amendments or changes thereto. The standard
intervals do not acknowledge manufacturing stoppage due to business week holidays, acts of nature,
and/or emergency management situations.



Vendor and Cricket as part of the Program/Project Management shall develop Project Specific
Implementation Schedules for each Initial System which shall serve as working documentation to
track each project. These will be living documents from which the parties agree to.

Lucent/Cricket — Proprietary Use Pursuant to Company Instructions


 









 








Exhibit D









Typical MSC Deployment Timeline




[***]




[One Page Of Deployment Timing Information Redacted Pursuant To A Confidential Treatment Request]






 




			
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Exhibit E1




EXHIBIT E1




CRICKET COMMUNICATIONS, INC.

SYSTEM EQUIPMENT PURCHASE AGREEMENT

INSURANCE



Each party shall maintain during the term of this Contract, at its own cost and expense,
carry and maintain at a minimum, the insurance coverage listed below. If either party is not
self-insured, that party shall maintain such coverages having a “Best’s” rating of at least
B+XIII. Vendor shall not commence any work hereunder until each party has fulfilled all
insurance requirements herein. Each party shall require its subcontractors and agents to
maintain the same insurance coverage listed below.





	-	 	Workers’ Compensation insurance with statutory limits as required in the state(s)
of operation; and providing coverage for either party’s employee entering onto Owner
premises, even if not required by statute. Employers’ Liability or “Stop Gap” insurance
with limits of not less than $500,000 for each occurrence.
	 
	-	 	Commercial General Liability Insurance covering claims for bodily injury, death,
personal injury or property damage occurring or arising out of the performance of this
Agreement, including coverage for independent contractor’s protection (required if any
work will be subcontracted), premises-operations, products/completed operations and
contractual liability with respect to the liability assumed by either party hereunder.
	 
	-	 	The limits of insurance shall be:





	 	 	 	 	 
	- Each Occurrence (Bodily Injury/Property Damage)
	 	$	1,000,000.00	 
	- General Aggregate Limit (Annual Aggregate)
	 	$	2,000,000.00	 
	- Products-Completed Operations Limit (Annual Aggregate)
	 	$	1,000,000.00	 
	- Personal Advertising Injury Limit (Each Occurrence)
	 	$	1,000,000.00	 
	- Umbrella Coverage
	 	$	10,000,000.00	 







	-	 	Comprehensive Automobile Liability Insurance covering ownership, operation and
maintenance of all owned, non-owned and hired motor vehicles used in connection with
the performance of this Agreement, with limits of at least $1,000,000 combined single
limit for bodily injury and property damage.




The insurance limits required herein may be obtained through any combination of
self-insurance, primary and excess or umbrella liability insurance. Each party shall furnish
the other prior to the start of the work, if requested by the other party, certificates or
adequate proof of the insurance required by this clause. Each party shall notify the other in
writing at least thirty (30) days prior to cancellation of or any material change in the
policy. Notwithstanding the above, each party shall have the option where permitted by law to
self-insure any or all of the foregoing risks.



“All CGL and Automobile liability insurance shall designate Lucent Technologies, Inc., its
affiliates and subsidiaries, and its directors, officers and employees (“Company”) as
Additional Insured. All such insurance should be primary and non-contributory and is required
to respond and pay prior to any other insurance or self-insurance available. Any other
coverage available to Lucent shall apply on an excess basis.”




Lucent/Cricket Proprietary




 









 








Exhibit E2




EXHIBIT E2




Vendor Subcontractor Insurance Minimum Requirements









INSURANCE — Subcontractor Professional Services:



Vendor will maintain and cause Vendor’s subcontractors to maintain during the term of this
Agreement: (1) Workers’ Compensation insurance as prescribed by the law of the state or nation in
which the Work is performed; (2) employer’s liability insurance with limits of at least $500,000
for each occurrence; (3) automobile liability insurance (if the use of motor vehicles is required)
with limits of at least $1,000,000 combined single limit for bodily injury and property damage per
occurrence; (4) Commercial General Liability (“CGL”) insurance, ISO 1988 or later occurrence form
of insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits
of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence;
and (5) Errors and Omissions or Professional Liability insurance in the amount of at least
$1,000,000 per claim with an aggregate of at least $2,000,000 inclusive of legal defense costs, to
be maintained for a period of at least one (1) year after termination or expiration of this
Agreement. All CGL and automobile liability insurance will designate Lucent Technologies Inc., its
affiliates, and its directors, officers and employees (all referred to as “Company”) as additional
insured. All such insurance must be primary and non-contributory and required to respond and pay
prior to any other insurance or self-insurance available. Any other coverage available to Company
will apply on an excess basis. Vendor agrees that Vendor, Vendor’s insurer(s) and anyone claiming
by, through, under or in Vendor’s behalf will have no claim, right of action or right of
subrogation against Company and its customers based on any loss or liability insured against under
the foregoing insurance. Vendor and Vendor’s subcontractors will furnish prior to the start of
work, certificates or adequate proof of the foregoing insurance, including, if specifically
requested by Company, endorsements and policies. Company will be notified in writing at least
thirty (30) days prior to cancellation of or any change in the policy. Insurance companies
providing coverage under this Agreement must be rated by A-M Best with at least an A- rating.













INSURANCE — Subcontractor Goods, OEM, Hardware







Vendor shall maintain and cause Vendor’s subcontractors to maintain during the term of this
Agreement: (1) Workers’ Compensation insurance as prescribed by the law of the state or nation in
which the Work is performed; (2) employer’s liability insurance with limits of at least $500,000
for each occurrence; (3) automobile liability insurance (if the use of motor vehicles is required)
with limits of at least $1,000,000 combined single limit for bodily injury and property damage per
occurrence; (4) Commercial General Liability (“CGL”) insurance, ISO 1988 or later occurrence form
of insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits
of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence;
and (5) if the furnishing to Company (by sale or otherwise) of material or construction services is
involved, CGL insurance endorsed to include products liability and completed operations coverage in
the amount of $5,000,000 per occurrence. All CGL and automobile liability insurance shall
designate Lucent Technologies Inc., its affiliates, and its directors, officers and employees (all
referred to as “Company”) as additional insured. All such insurance must be primary and
non-contributory and required to respond and pay prior to any other insurance or self-insurance
available. Any other coverage available to Company shall apply on an excess basis. Vendor agrees
that Vendor, Vendor’s insurer(s) and anyone claiming by, through, under or in Vendor’s behalf shall
have no claim, right of action or right of subrogation against Company and its customers based on
any loss or liability insured against under the foregoing insurance. Vendor and Vendor’s
subcontractors shall furnish prior to the start of work, certificates or adequate proof of the
foregoing insurance, including, if specifically requested by Company, endorsements and policies.
Company shall be notified in writing at least thirty (30) days prior to cancellation of or any
change in the policy. Insurance companies providing coverage under this Agreement must be rated
by A-M Best with at least an A- rating.




Lucent Technologies Inc. — Proprietary




 









 








Exhibit F




Cricket Communications, Inc.




AMPS/PCS
Systems Documentation

System Documentation CD Table of Contents

[***]

[Ten Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment Request]


 

***Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.


Lucent/Cricket
Proprietary



Page 1 of 2









 








Exhibit F




Cricket Communications, Inc.




1XEV-DO RAN Documentation

System Documentation CD Table of Contents

[***]



 

***Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.

Lucent/Cricket
Proprietary



Page 2 of 2









 






Exhibit F1

Lucent Technologies

Bell Labs Innovations




Flexent®/AUTOPLEX® Wireless

Networks

Executive Cellular Processor (ECP)

Release 19.0

System Description




[***]

[Sixty Seven Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.





 









 





Exhibit F2




IMS Hardware




[***]

[Twenty Nine Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.





 









 





Exhibit F3

Juniper Networks

M-Series Routing Platforms




[***]

[Eight Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.





 









 





Exhibit F-4

RS 8000/8600 Ethernet Aggregation Routers




[***]

[Two Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.





 









 





Exhibit F-5

Lucent Technologies

Bell Labs Innovations




MiLife® Application Server R26 SU3

Product Description Document




[***]

[Fifteen Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.





 









 







 

Exhibit G




CDMA Cell Technician

Cricket Training Roadmap Elements




[***]

[Five Pages Of Proprietary Training Information Have Been Omitted Pursuant To A Confidential Treatment Request]




Page 1 of 1

Lucent/Cricket Proprietary






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.






 









 





Exhibit
H-1



LUCENT TECHNOLOGIES




Remote Technical Support Advantage




(RTSA)




For Wireless/Mobility Products




Premium Level Service




for




Cricket Communications, Inc.




[***]



[Thirty One Pages Of Support Information Redacted Pursuant To A Confidential Treatment Request]




Cricket Communications and Lucent Technologies Inc. – Proprietary



 




*** Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.




1









 





Exhibit H-2a




LUCENT TECHNOLOGIES Inc.




Remote Technical Support Advantage




(RTSA)




Data Service




Network Elements/Element Management Systems.




[***]



[Thirteen Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment Request]




Ver. 1.2

Lucent Technologies – Proprietary

Not to be disclosed or used except in accordance with applicable agreements



 




***Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.




 Page 1









 





Exhibit H-2b – Schedule 1




Cricket Communications, Inc.




[***]





 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.














 





Exhibit H-3a




Cricket Communications, Inc. – Repair and Exchange Services (RES) SOW

[***]

[Four Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment Request]


 

***Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested
with respect to the omitted portions.

Cricket Communications Inc and Lucent Technologies Inc. Proprietary


1 of 1










 





EXHIBIT H-3b




EXHIBIT H-3b

CRICKET RES COVERED EQUIPMENT




[***]



[Three Pages Of Technical Information Deleted Pursuant To A Confidential Treatment Request]



 




***Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.




Lucent/Cricket Proprietary

1 of 2
















 





Exhibit H-3c




Exhibit H-3c

Cricket RES Supported Parts List

(5E Wireless)




[***]




[Twenty Five Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]




Lucent/Cricket Proprietary




 1 of 2 









 





Exhibit H4




Cricket Communications, Inc. — REPAIR SERVICE AND RETURN




[***]



[Two Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment Request]




Cricket Communications, Inc. and Lucent Technologies Inc. Proprietary



 




***Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.




1 of 1
















 





Exhibit I-1




STATEMENT OF WORK









Cricket Auction 66




Cricket Communications, Inc.




Project Management



Bid # MWS07CL0001D1




[***]



[Seven Pages Of Proprietary Information Redacted Pursuant To A Confidential Treatment Request]




Lucent/Cricket Proprietary



 




***Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.




1 of 1
















 





EXHIBIT I-2




STATEMENT OF WORK









Cricket Auction 66




Cricket Communications, Inc.




MSC/BTS – Engineering, Installation & Integration




[***]



[Twenty Eight Pages Of Proprietary Information Omitted Pursuant To A Confidential Treatment
Request]




***Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.
















 





EXHIBIT I-3




STATEMENT OF WORK








Cricket A66 3G-1X and 1xEV-DO Integration Services



Cricket Communications, Inc.




[***]



[ Twelve Pages Of Proprietary Information Omitted Pursuant To A Confidential
Treatment Request]




Lucent Proprietary and Confidential. © 2007 All Rights Reserved.



 




***Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.
















 









	AUTOPLEX® MSC PROJECT
EXIT CHECKLIST




	PLEASE NOTE: The information contained herein is proprietary and is not to be disclosed
—




	outside of Alcatel-Lucent and the customer.




	Version 6.0, December 2006




	GEC Project ID#
Customer
Customer Contact — Name
Customer Contact — Phone
Technical Deputy
Data Consultant
MSC Location (address, floor)
MSC Location (city, state)
MSC Phone Number
Technology (e.g. CDMA)
ALU MSC Engineer
ALU MSC Engineer Contact Info
ALU Program Manager
ALU Program Manager Contact Info
ALU Installation Supervisor
ALU Installation Supervisor Contact Info
ECP Generic & SU Level
5ESS Generic & SU Level
5ESS Crafts Loaded
Base and Control





 









 












	# of SMs Equipped
Cell Generic
# of Cells
5ESS Dial-up #
OMP Dial-up #
5ESS Scans #
Open ARs
Service Activation Date






 









 












	Description of GuidelineFunctional Area            NAR Action Item Owner            PM Check Off When Verified            Date Completed
step
1 ECP hardware diagnosed, ATP, and activeECPLTI
2 5ESS hardware diagnosed, ATP, and active5ESSLTI
3 OMP hardware diagnosed,ATP, and activeOMPLTI
4 5ESS to FMM-AP SS7 F-links up and active5ESS/FMM-APLTI/CNID/Customer
5 5ESS STP A-links grown in, active, and stable5ESSLTI/CNID/Customer
6 FMM-AP STP A-links grown in, active, and stableFMM-AP LTI/CNID/Customer
7 ALL cell datalinks ATP to DSX panel (if applicableECP/FMM-APLTI
8 ECP MCRT, RC/V, CDT, and ROP working through OMPOMP            LTI/CNID
9 5ESS MCRT, RC/V, STLWS, Traffic channel and ROP working through OMP            OMP            LTI/CNID
10 Recorded Announcements Loaded and Verified5ESSCustomer/CNID




	11 5ESS SCANS working properly; test SU sent successfully5ESS            LTI
12 5ESS integrated w/latest available SU that was negotiated w/customer prior to MSC Integration Engineer leaving market. 5ESS            CNID
13 ECP integrated w/latest available SU that was negotiated w/customer prior to MSC Integration Engineer leaving market. ECPCNID
14 AP integrated w/latest available SU that was negotiated w/customer prior to MSC Integration Engineer leaving market. FMM-AP            CNID
15 OMP integrated w/latest available SU that was negotiated w/customer prior to MSC Integration Engineer leaving market. OMP            CNID
16 Verify/Establish REX schedule on 5ESS AM, SMs and CM (FF 96-155)5ESS            CNID
17 ECP & OMP cron verifiedECP/OMPCNID
18a            Help customer create a 5ESS scans login profile5ESSALU
18b 5ESS SCANS Customer profile built5ESSCustomer
23 ECP Backup Schedule reviewed with CustomerECPCNID
24 5ESS Backup Schedule reviewed with Customer5ESSCNID
25 OMP Backup Schedule reviewed with CustomerOMPCNID
26 Ensure Customer is on Lucent Alert distribution listECPProgram Manager
27 Ensure Customer has ExtraNet AccessMSCProgram Manager
28 WTSC Remote Access is verifiedMSCCNID
29 AMA Data collected, processed, and verifiedECP/FMM-APCustomer





 









 












	30 Service Measurements Data collected and verfiedECPCustomer
31 In/Out of Hours Emergency Equipment Procurement communicated to Customer            ECP            Program Manager
32 Change Notice Process communicated to CustomerECPProgram Manager
33 Trouble Escalation Process communicated to CustomerECP            Program Manager
34 Documentation Ordering Procedures communicated to CustomerECP            Program Manager
35 CALEA Integration completedLTDUCNID
36 Feature Integration completedMSCCNID
37 ATM/IP Soft-Handoff (IPSHO) Integration completedPSTD/Customer
38 IP Backhaul (IPBH) Integration completedPSTD/Customer
39 Subscriber MigrationPSTD/Customer
40 Inter-MSC Cell SwingPSTD/Customer
41 1X-RNC Integration completedFMM-AP CNID
42 1X-EVDO Integration completed FMM-AP CNID
43 5E Packet Control Function (PCF)5ESSCNID
44 FMM hardware diagnosed, ATP, and activeFMM-AP ALU
45 Verify Juniper load sharing, manual and automatic swapping between routers            Router            ALU




	LTI = Alcatel-Lucent Installation




	CNID = Converged Network Integration & Design
TD = Technical Deputy
PS = Professional Service




	Alcatel-Lucent PM Signature: ___
—
Customer Signature: ___
—
a)







 









 












	2. Description of Work Delivered




	Market            Site Name
Voice Site # Data Site # Cabinet S/N
RITC Tech            Field Tech            RITC Eng




	3. Integration Tests/Checks




	(1) Call processing generic            Voice: Data:




	(2) Power verification




	(3) Alarm tests




	(4) Call processing tests




	(5) Functional antenna tests




	(6) Cell is




	“Green”




	List Exception Items to be completed within 30 days:




	(a) Exception Items negotiated with/agreed by:
___




	(b) (Customer Representative – Signature)




	___




	(Customer Representative – Print Name)




	Alcatel-Lucent Representative: ___
(Alcatel-Lucent Representative – Signature)




	___




	(Alcatel-Lucent Representative – Print Name)






 









 












	Integration Test/Check Details




	b. Power Verification            CDM 1, Radio 1, TXPort 1, CLGC=1, Target 45.00, Power 45.18,
Status Complete




	c. CDM 1, Radio 2, TXPort 1, CLGC=1, Target 45.00, Power 45.12, Status Complete




	d. CDM 1, Radio 3, TXPort 1, CLGC=1, Target 45.00, Power 45.16, Status Complete




	e. Cell Status Results            op:cell 166




	f. IP all specified cells ACT




	g.




	h. M 52 OP:CELL 166 CDM 1, CRC, ACTIVE




	i. PARENT CRC 2




	j. SIGNALING LINK ACTIVE




	k. DO TRAFFIC LINK ACTIVE




	l. DO ETHERNET UNEQUIPPED




	m. IPLK 1 ENABLED ON DS1 1, DHCP NORMAL, L2HB AUTO-DETECT, UNKNOWN, INT 0 SEC




	n. DEVICE — TICLI 31




	o.




	p. 02/26/07 17:52:08 #745642




	q.




	r.





 









 












	s. M 52 OP:CELL 166 CDM 2, CRC, ACTIVE




	t. CHILD DO CRC 1




	u. SIGNALING LINK ACTIVE ON CRC 2/MLG 1, SHARING WITH CRC 1




	v. DS1 3,4,5,6,7,8 NOT IN ANY MLG





 









 












	a)




	2. Work Completed




	RITC smartinez Installer Sylvia Engineer

Completed Item




	Pre-Integration Cell Status
EVDO Cell Generic
Call-Thru Complete
Post-Integration Cell Status




	This work described in this completion notice was delivered by:




	(Integration Representative: name/phone) (Date)




	List Exception Items to be completed within 30 days:




	(a) Exception Items negotiated with/agreed by:
___




	(b) (Customer Representative – Signature)




	___




	(Customer Representative – Print Name)




	Alcatel-Lucent Representative: ___
(Alcatel-Lucent Representative – Signature)




	___




	(Alcatel-Lucent Representative – Print Name)




	Stage            Status Check            Result





 









 












	Pre-Integration            Voice Modcell Status




	Post-Integration            Voice Modcell Status
Call Data






 










 





Exhibit J

Alcatel Lucent

Cricket AWS Network Configuration Options




[***]




[Five Pages Of Technical Information Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.

















 





May 2007 SEPA — Exhibit K




[***]



[Six Pages Of Technical Information Redacted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.

















 





EXHIBIT L




SYSTEM CAPACITY & PERFORMANCE REQUIREMENTS

FOR

Alcatel-Lucent




Product Roadmap Disclaimer



The product roadmap and all other information identified in this document is for informational
purposes only. It represents Alcatel-Lucent’s current plan of record for the associated products.
Alcatel-Lucent at its sole discretion has the right to add or delete any features or
functionalities from the current product roadmap and this document.



Dates in the product roadmap are only indicative of Alcatel-Lucent’s current assessment and are
subject to change. Alcatel-Lucent does not commit that any specific features or functionality will
ultimately be released, made generally available, or provided.



The terms and conditions, including pricing, of any features or functionalities that may be
described in the product roadmap or in this document that are ultimately released, made generally
available, or provided under an agreement are subject to future negotiations and future agreement
on the terms and conditions which would govern any sale.



There are no penalties, liquidating damages or other remedies associated with changes to the
product roadmap and this document including cancellation of any specific feature or functionality
or delay in the timing of development.




Introduction



This exhibit describes the capacity and performance requirements of the wireless
communications systems, and equipment to be purchased from the Vendor. The definition for the
“System” is provided in Section 1 of the System Equipment Purchase Agreement (SEPA). The systems,
equipment and applications included in the “System” are listed in sections 1 of this exhibit. The
purchaser has included in this exhibit only a few selected capacity and performance parameters that
it deems to be critical to its business objectives. It in general understands that the vendor will
stand behind its products according to technical specifications and assumptions provided to the
purchaser at the time of this agreement. Please note that the exhibit will be updated under mutual
agreement from time to time to reflect the systems and equipment, including their capacity and
performance changes, desire to be purchased by Cricket and its Affiliates from the Vendor.




[***]



[Six Pages Of Technical Data Omitted Pursuant To A Confidential Treatment Request]




Cricket/Lucent Proprietary






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.






1 of 1









 





EXHIBIT M


[***]





Product Roadmap Disclaimer



The product roadmap and all other information identified in this document is for informational
purposes only. It represents Alcatel-Lucent’s current plan of record for the associated products.
Alcatel-Lucent at its sole discretion has the right to add or delete any features or
functionalities from the current product roadmap and this document.
Dates in the product roadmap are only indicative of Alcatel-Lucent’s current assessment and are
subject to change. Alcatel-Lucent does not commit that any specific features or functionality will
ultimately be released, made generally available, or provided.
The terms and conditions, including pricing, of any features or functionalities that may be
described in the product roadmap or in this document that are ultimately released, made generally
available, or provided under an agreement are subject to future negotiations and future agreement
on the terms and conditions which would govern any sale.
There are no penalties, liquidating damages or other remedies associated with changes to the
product roadmap and this document including cancellation of any specific feature or functionality
or delay in the timing of development.




[***]



[Four Pages Of Technical Data Omitted Pursuant To A Confidential Treatment Request]




Cricket/Lucent Proprietary






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.






1 of 1









 





Exhibit N-1

MUTUAL

NONDISCLOSURE AGREEMENT




     This Mutual Nondisclosure Agreement (the “Agreement”) is made and entered into effective
                                        , 2007, by and between Cricket Communications, Inc., a Delaware
corporation, (which together with its parent company, Leap Wireless International, Inc. and its
wholly-owned subsidiaries is collectively considered one party for purposes of this Agreement),
with offices located at 10307 Pacific Center Court, San Diego, CA 92121, and                                         ,
a                                         corporation, with offices located at                                                             , with regard
to the following facts:



     WHEREAS, each party to this Agreement possesses confidential and/or proprietary information
related to technology and business activities, including, but not limited to, business outlooks,
revenue, pricing, trade secrets, computer programs and software (including, but not limited to,
code, software output, screen displays, file hierarchies, graphics and user interfaces), formulas,
data, inventions, techniques, product designs, strategies and third party confidential information
(the “INFORMATION”); and



     WHEREAS, each party in possession of INFORMATION (the “Disclosing Party”) desires to disclose
some of its INFORMATION to the other party (the “Receiving Party”) subject to the terms and
conditions of this Agreement;



     NOW, THEREFORE, in consideration of the promises made herein, the receipt of certain
INFORMATION and good and other valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:



     1. Permitted Use. The Receiving Party shall handle, use, treat and utilize such
INFORMATION as follows: (a) hold all INFORMATION received from the Disclosing Party in strict
confidence; (b) use such INFORMATION only for the purpose of (i) evaluating the possibility of
forming a joint business relationship or other commercial arrangement between the parties
concerning such INFORMATION, and (ii) if and when such relationship is formed by a written
agreement, furthering the purpose and intent expressly stated in such written agreement; (c)
reproduce such INFORMATION only to the extent necessary for such purpose; (d) restrict disclosure
of such INFORMATION to its officers, directors and employees, the officers, directors and employees
of its Affiliates, and their representatives with a need to know (and advise such persons of the
obligations assumed herein); and (e) not disclose such INFORMATION to any third party, including,
but not limited to, any manufacturer or independent contractor, without prior written approval of
such Disclosing Party. In addition, with respect to any equipment, component, software, or other
items delivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not
reverse engineer, disassemble, decompile, or otherwise analyze the physical construction of, any
such items. For the purposes of this paragraph 1, “Affiliate” means, with respect to a party,
another entity that directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with that party.



1









 




The restrictions on the Receiving Party’s use and disclosure of INFORMATION as set forth above
shall not apply to any INFORMATION which the Receiving Party can demonstrate:




     i. is wholly and independently developed by the Receiving Party without the use of INFORMATION
of the Disclosing Party; or



     ii. is or has become generally available to the public without breach of this Agreement by the
Receiving Party; or



     iii. at the time of disclosure to the Receiving Party, was known to such Receiving Party free
of restriction and evidenced by documentation in the Receiving Party’s possession; or



     iv. is approved for release by written authorization of the Disclosing Party, but only to the
extent of and subject to such conditions as may be imposed in such written authorization; or



     v. is disclosed in response to a valid order of a court or other governmental body in the
United States or any political subdivision thereof, but only to the extent of and for the purposes
of such order; provided, however, that the Receiving Party shall first notify the Disclosing Party
in writing of the order and permit the Disclosing Party to seek an appropriate protective order.


2. Designation. INFORMATION shall be subject to the restrictions of Section 1 if it is in
writing or other tangible form and clearly marked as proprietary or confidential when disclosed to
the Receiving Party or, if not disclosed in tangible form, if clearly identified as confidential or
proprietary at the time of disclosure. The parties agree to use reasonable efforts to summarize
the content of oral disclosures which are proprietary or confidential but failure to provide such
summary shall not affect the nature of the INFORMATION disclosed if such INFORMATION was identified
as confidential or proprietary when orally disclosed.



3. No Disclosure. This Agreement does not permit either party to disclose INFORMATION to
any of that party’s affiliates or to any other third party except as may be explicitly set forth
herein.



4. No License or Representations. No license to a party of any trademark, patent,
copyright, mask work protection right or any other intellectual property right is either granted or
implied by this Agreement or any disclosure hereunder, including, but not limited to, any license
to make, use or sell any product embodying any INFORMATION. No representation, warranty or
assurance is made by either party with respect to the non-infringement of trademarks, patents,
copyrights, mask protection rights or any other intellectual property rights or other rights of
third persons.



5. No Obligation. Neither this Agreement nor the disclosure or receipt of INFORMATION
shall be construed as creating any obligation of a party to furnish INFORMATION to the other party
or to enter into any agreement or relationship with the other party with respect to mutual
business.



6. Return of Information. All INFORMATION shall remain the sole property of the Disclosing
Party which originally disclosed such INFORMATION, and all materials containing any such
INFORMATION (including all copies made by the Receiving Party) shall be returned




2









 




to the Disclosing Party immediately upon termination or expiration of this Agreement, or upon the
Receiving Party’s determination that it no longer has a need for such INFORMATION. Upon request of
the Disclosing Party, the Receiving Party shall certify in writing that all materials containing
such INFORMATION (including all copies thereof) have been returned to the Disclosing Party.



7. Term and Termination. This Agreement shall become effective on the date first set forth
above and shall terminate upon the happening of the earlier of:




     (a) The written notice of either party to the other of its election, with or without cause, to
terminate this Agreement; or



     (b) The expiration of sixty (60) months from the date first set forth above.


8. Notice. Any notice or other communication made or given by either party in connection
with this Agreement shall be sent via facsimile (with confirmation) or by registered or certified
mail, postage prepaid, return receipt requested, or by courier service addressed to the other party
at its address set forth below:



Cricket Communications, Inc.

10307 Pacific Center Court

San Diego, CA 92121




	 	 	 	 	 	 	 
	 

	 	Attn: Legal Department
	 	Attn:	 	 
	 

	 	 	 	 	 	 
	 

	 	Fax: 858-882-6080
	 	Fax:	 	 
	 

	 	 	 	 	 	 




9. Survivability. Each party agrees that all of its obligations undertaken herein as a
Receiving Party shall survive and continue after any termination or expiration of this Agreement.



10. Injunctive Relief. The parties agree that any unauthorized use of any of the
INFORMATION in violation of this Agreement disclosed by a Disclosing Party will cause such
Disclosing Party irreparable injury for which it would have no adequate remedy at law.
Accordingly, the Disclosing Party shall be entitled to immediate injunctive relief prohibiting any
violation of this Agreement, in addition to any other rights and remedies available to such
Disclosing Party.



11. Attorneys’ Fees. In the event either party shall bring any action to enforce or
protect any of its rights under this Agreement, the prevailing party shall be entitled to recover,
in addition to its damages, its reasonable attorneys’ fees and costs incurred in connection
therewith.



12. Governing Law and Forum. This Agreement shall be governed in all respects solely and
exclusively by the laws of the State of California, U.S.A. without regard to conflict of laws
principles. The parties hereto expressly consent, and submit themselves, to the exclusive
jurisdiction of the courts of California, and it is stipulated that venue shall be in San Diego
County for the adjudication or disposition of any claim, action or dispute arising out of this
Agreement.




3









 







13. Miscellaneous. This Agreement constitutes the entire understanding among the parties
hereto as to the INFORMATION and supersedes all prior discussions between them relating thereto.
No amendment or modification of this Agreement shall be valid or binding on the parties unless made
in writing and signed on behalf of each of the parties by its authorized officer or representative.
No party may assign or transfer, in whole or in part, any of its rights, obligations or duties
under this Agreement. The failure or delay of any party to enforce at any time any provision of
this Agreement shall not constitute a waiver of such party’s right thereafter to enforce each and
every provision of this Agreement. In the event that any of the terms, conditions or provisions of
this Agreement are held to be illegal, unenforceable or invalid by any court of competent
jurisdiction, the remaining terms, conditions or provisions hereof shall remain in full force and
effect.



14. Counterparts and Facsimile Delivery. This Agreement may be executed in two or more
identical counterparts, each of which shall be deemed to be an original and all of which taken
together shall be deemed to constitute the Agreement when a duly authorized representative of each
party has signed a counterpart. The parties intend to sign and deliver this Agreement by facsimile
transmission. Each party agrees that the delivery of the Agreement by facsimile shall have the
same force and effect as delivery of original signatures and that each party may use such facsimile
signatures as evidence of the execution and delivery of the Agreement by all parties to the same
extent that an original signature could be used.




     IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth above.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Cricket Communications, Inc.	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Print Name:

	 	 	 	Print Name:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	Title:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 






4









 





EXHIBIT R

Cricket Communications, Inc.

System Equipment Purchase Agreement




AWS Award Summary




[***]



[Thirteen Pages Of Pricing Data Omitted Pursuant To A Confidential Treatment Request]






 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted portions.