exv10w11






Exhibit 10.11




CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




MASTER RF TRANSPORT AGREEMENT




     THIS Master RF Transport Agreement (this “Agreement “) is dated as of February 10, 2006
(the “Effective Date”), and is entered into by and between NextG Networks, Inc., a Delaware
corporation (“NextG”), and Cricket Communications, Inc., a Delaware corporation
(“Operator”). NextG and Operator are each individually referred to as a “Party” and
are collectively referred to as the “Parties.” Capitalized terms used in this Agreement
are defined in § 1 below or elsewhere in this Agreement.



Background



From time to time Operator may request, and NextG may agree, that NextG will provide Operator with
network design, construction, RF transport, and maintenance services with respect to one or more
Networks, whether already existing, or to be constructed by NextG, subject to all terms,
conditions, covenants, representations, warranties, and provisions set forth in this Agreement.




Agreement



For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:



1 Definitions. As used in this Agreement and in any Attachment, the following terms shall
have the meanings specified:




     1.1 “Affiliate”means any entity controlling, controlled by or under common control
with the respective Party.



     1.2 “Hub Node Equipment”means the equipment that receives optical signals from the
NextG Equipment and transmits and receives RF signals to the Operator BTS.



     1.3 “Intellectual Property” means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice, all improvements to such inventions, and all
patents, patent applications, and patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof; (b) all trademarks,
service marks, trade dress, logos, trade names, and corporate names, together with all
translations, adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in connection therewith;
(c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in
connection therewith; (d) all mask works and all applications, registrations, and renewals in
connection therewith; (e) all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and production processes
and techniques, technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals); (f) all computer
software (including data and related documentation); (g) all other proprietary rights; and (h) all
copies and tangible embodiments thereof (in whatever form or medium).





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




     1.4 “Network” means the fiber portion of the microcellular RF network to be
constructed and owned or controlled by NextG over which NextG will provide Operator “RF Transport”
and “Monitoring” Services (as defined in §5.3 below) hereunder, as per any “Network Order” (as
defined below).



     1.5 “Network Vendor” means the vendor from whom NextG may have purchased its dark
fiber for a Network.



     1.6 “NextG Assessments” means any and all assessments, other than Operator
Assessments, including franchise fees, license fees, right-of-way fees, utility charges and fees
directly related to obtaining, maintaining, renewing, and extending any NextG Authorizations, in
each case imposed by any Person upon NextG directly related to NextG’s operation of NextG’s
business.



     1.7 “NextG Authorizations” means any and all material and applicable authorizations,
licenses, IRUs, easements, rights of way, franchises, approvals, agreements, orders, consents, and
all other rights required for NextG to operate and maintain the NextG Network and to provide
services to Operator, other than Operator Authorizations.



     1.8 “NextG Equipment” means [***].



     1.9 “NextG Fiber Hub” means the fiber optic hub at each Node and the Operator BTS Host
Site that NextG will use to connect to the Operator Equipment.



     1.10 “NextG Network” means, collectively, the Network, NextG Authorizations, NextG’s
Intellectual Property and the NextG Equipment.



     1.11 “Node Equipment” means Operator’s endpoint equipment that receives optical
signals from the NextG Equipment and transmits and receives RF signals to Operator’s customers.
Such Node Equipment is comprised of the materials set forth on the Bill of Material as described in
Attachment 3 to the Network Order



     1.12 “Node” means each immediate location where Node Equipment is located or attached.



     1.13 “Operator Assessments” means any and all taxes, costs, charges, fees and expenses
of every kind and description relating to the: (a) Nodes, (b) Operator BTS Host Site (such as but
not limited to rent, planning, permitting and zoning fees, and electricity and telco (i.e., T-1)
hookup, connection and usage charges), (c) Operator Equipment; and (d) items shown on the
Responsibilities Matrix attached to the Network Order (the “Responsibilities Matrix”) as
being Operator’s responsibility.



     1.14 “Operator Authorizations” means any and all applicable authorizations, leases,
subleases, licenses, easements, rights of way, utility usage rights, usage rights, franchises,
approvals, permits, orders, consents, and any and all other rights necessary for: (a) NextG to
lawfully and rightfully operate, maintain, monitor, retrieve, replace, repair, and access all
Operator Equipment, Node, and Hub Node Equipment, and any NextG Equipment connected to the same;
(b) NextG to lawfully and rightfully connect Operator’s Equipment to the NextG Network; and (c)
Operator to lawfully and rightfully receive and use services, and otherwise perform its obligations
and exercise its rights, under this Agreement.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




     1.15 “Operator BTS Host Site” means the BTS site determined in accordance with §5.7
below through which NextG will connect the Network to, and integrate such Network with, Operator’s
network.



     1.16 “Operator Equipment” means Operator‘s communication systems, [***].



     1.17 “Outage Credit” means a credit calculated as provided in the Service Level
Agreement attached hereto as Attachment A to be applied against fees owed by Operator to
NextG under this Agreement.



     1.18 “Outage” means either [***].



     1.19 “Person” means any natural person or entity, including any corporation, any
company, any partnership, any trust, any association, any other business entity, any governmental
agency, authority, jurisdiction, or political divisions or subdivisions thereof, or any individual;
provided that this definition does not include either Party, unless the context specifically
requires otherwise.



     1.20 “Representative,” with respect to a Person or Party, means the directors,
officers, employees, agents, consultants, advisors (including financial advisors, attorneys, and
accountants), contractors, and subcontractors of the applicable Person or Party.



     1.21 “San Diego Metro Network,” means the Network defined by the Network Order entered
into contemporaneously with this Agreement for San Diego and San Diego State University (as such
order may be adjusted from time to time in accordance with this Agreement).



     1.22 “University,” if applicable with respect to a university application as stated in
a Network Order, means the college or university where a Network is to be located.



     1.23 “User” means any communications or other company (other than Operator) that may
be connected to a Network; provided, however, that each Network Vendor is excluded from this
definition.



     1.24 “Wavelength” means an optical carrier of light used to transmit RF signals
between Nodes and the BTS Host Site.



2 Use of Network.




     2.1 Permitted Uses. [***].



     2.2 NextG’s Use of Network. [***].



     2.3 Interference.



          2.3.1 Avoidance of Interference. [***].



          2.3.2 Testing. The Parties shall (a) cooperate in good faith in resolving Material
Interference issues, including, without limitation, by collaborating within twenty-four (24) hours
of first discovery of the Material Interference, and (b) bear the expense of their Representative’s
participation in the same. However, if it is necessary to utilize a third party to perform any
tests,





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.



the Party ultimately determined to have caused the Material Interference shall pay the cost of
the third party tests.




          2.3.3 Interruption Due to Interference. Once it has been determined with reasonable certainty
whose equipment or operations are causing the Material Interference, NextG, shall immediately shut
down the service of the interfering party except for intermittent testing, which shall be
coordinated with all parties, required to resolve the Material Interference.



          2.3.4 Material Interference within 30 Days of Adding New Customer. [***].



3 Services Fees and Payment.




     3.1 Network Orders. From time to time Operator may order and NextG, through one of its
regionally-based, wholly-owned subsidiaries, may accept, an order from Operator for services under
this Agreement. Neither Party shall have any obligation to provide or pay for service until the
Parties have mutually executed and delivered a network service order that sets forth the relevant
and specific terms of such order (a “Network Order”). A sample Network Order is attached
hereto asAttachment B.



     3.2 Operator Purchase Orders. Purchase orders are required for all goods and services
purchased hereunder. However, the Parties specifically agree that none of the terms and conditions
that may be stated on such Operator purchase order(s) shall become a part of this Agreement or any
Network Order, whether or not they conflict with the terms of this Agreement or any Network Order.
NextG shall not be obligated to commence work, and may terminate any Network Order at any time
prior to NextG’s receipt of a purchase order from Operator if a purchase order is not issued within
[***] days of the Network Order effective date. Upon NextG’s receipt of Operator’s purchase order
under a Network Order, such Network Order shall become irrevocable except as specifically stated to
the contrary herein or therein. Any Network Order may be modified, if agreed to in writing by both
parties, by plus or minus [***] of the original Node Count contained within such Network Order.



     3.3 Services Fees and Payments; Transaction Taxes. Except as otherwise specifically provided
herein, all payments under this Agreement will be due and payable within thirty (30) days of
receipt of NextG’s invoice, subject to NextG providing tax reporting and payment direction
information in form reasonably required by Operator.



          3.3.1 No Setoff, Deduction, or Demand. Except as otherwise specifically provided herein, all
payments due NextG under this Agreement shall be paid by Operator without setoff, deduction, or
demand for any reason.



          3.3.2 Late Payments. In the event Operator fails to make a payment when due NextG under this
Agreement, Operator agrees to pay interest from the due date until the date paid at the lesser of
(a) [***] per annum, or (b) the maximum interest rate then allowed by law.



          3.3.3 Transactions Taxes. Operator shall be responsible for timely payment of all
“Transaction Taxes” (as defined below) imposed on charges for goods and services provided under
this Agreement. However, Operator shall not be responsible for such taxes for which Operator has
provided NextG with a valid and properly executed exemption certificate. For purposes of this
Agreement “Transaction Taxes” shall mean all (a) federal, state and local sales and use
taxes, and (b) any and all taxes and fees imposed on the purchase or use, or purchaser or





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.





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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.



user, of communications services including but not limited to federal communications tax and
universal service tax. Operator shall not be responsible for any taxes imposed on NextG arising
from NextG’s consumption of goods and services in connection with this Agreement. Operator shall
indemnify, defend and hold harmless NextG from any nonpayment of Transaction Taxes, including by
reason of presentation of an invalid or ineffective exemption certificate.




     3.4 [***].



4 Term.




     4.1 Agreement Term. The term (“Term”) of this Agreement shall commence on the
Effective Date and continue thereafter for the longer of (a) [***], or (b) [***].



     4.2 Network Term. The term for which NextG shall provide and Operator shall pay for RF
Transport and Monitoring Services for each Network (the “Network Term”) shall be for an
initial period of [***] from and after the Commissioning Date (as defined below) for that Network.
The Network Term of each Network Order shall automatically be extended for [***] each unless either
NextG or Operator gives written notice of termination to the other not less than twenty-four (24)
months prior to the commencement of the applicable extension term.



     4.3 [***].


5 Network Services. NextG shall provide to Operator for the Network Term the services
specified herein and in the Network Services Quotation attached hereto to the underlying Network
Order, in accordance with the terms and conditions specified herein and in the applicable Network
Order. NextG will use commercially reasonable efforts to obtain, maintain and renew all NextG
Authorizations necessary for NextG to timely perform its obligations hereunder, at NextG’s sole
cost and expense.






 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




     5.1 Fiber System Design and Build.



          5.1.1 Fiber System Planning and Build. Within [***] of NextG’s receipt of Operator’s purchase
order under a Network Order, NextG shall, at NextG’s cost and expense, commence to plan and design
the Network along the System Route described in the underlying Network Order (the “Fiber
System”). Upon Operator’s approval of the definitive Node design for a Network by way of
Operator’s written approval of the NextG provided RF Approval Form for that Network (which approval
may be by way of Operator’s email; hereafter, the “RF Approval Form”), NextG shall, at
NextG’s cost and expense, construct the Fiber System to connect the Nodes identified in the
applicable System Route and Network Services Quotation Attachments as described in the applicable
Responsibilities Matrix. Operator shall, at its sole cost and expense, install and provide to
NextG the appropriate Operator’s Hub at the address and the location set forth in the applicable
System Route and Network Services Quotation Attachments. Upon completion of construction of the
Fiber System, NextG shall perform uni-directional span testing of the Fiber System (the “Fiber
Acceptance Test”). NextG shall provide Operator with a copy of such test results. Loss
measurements will be recorded using an industry-accepted optical source. OTDR traces will be taken
and splice loss measurements will be recorded and summarized on data sheets. Copies of all data
sheets will be made available to Operator. The power loss measurements shall be made at 1310 nm
and 1550 nm, and performed from the NextG Fiber Hub to each segment end point. OTDR traces shall be
taken at 1310 nm and 1550 nm. The end-to-end loss value as calculated with an industry-accepted
optical source should have an attenuation rating of less than or equal to the following:



[***]



The total optical loss between the NextG Fiber Hub and each Node end point shall in all cases be
less than [***] calculated optical loss. OTDR testing only will be performed for bare fiber
(un-terminated fiber).




          5.1.2 Fiber Acceptance. Upon the successful completion of the Fiber Acceptance Test, NextG
shall provide written notice to Operator (the “Fiber Completion Notice “). Upon receipt of
the Fiber Completion Notice, the Fiber System will be deemed accepted unless Operator rejects the
Fiber Completion Notice by written notice to NextG within [***] of receipt of the Fiber Completion
Notice that a material failure of the Fiber System to satisfy the requirements of the Fiber
Acceptance Test exists. If Operator thus rejects the Fiber Completion Notice, NextG shall promptly
remedy the defect or failure specified in Operator’s notice. Thereafter NextG shall again conduct
a Fiber Acceptance Test and (if successfully completed) provide Operator a Fiber Completion Notice.
The foregoing procedure shall repeat in good faith until the Fiber System is accepted or deemed
accepted. The date of acceptance of the Fiber (“Fiber Acceptance”) shall be the earlier
of: (a) the date that Operator delivers a notice of acceptance of the Fiber System; (b) the [***]
after delivery of the Fiber Completion Notice where Operator fails to timely or properly reject
such notice, and (c) the date of Operator’s first use of the Fiber System for any purpose other
than testing.



     5.2 Node Design and Installation.



          5.2.1 [***].



          5.2.2 [***].





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.





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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




          5.2.3 [***].



          5.2.4 [***].



          5.2.5 Node Acceptance. The Nodes will be deemed accepted unless Operator rejects the Node
Completion Notice by written notice to NextG within [***] of receipt of the Node Completion Notice
that a material failure of the Nodes to satisfy the requirements of the Node Acceptance Test
exists. If Operator thus rejects the Node Completion Notice, NextG shall promptly remedy the
defect or failure specified in Operator’s notice. Thereafter NextG shall again conduct a Node
Acceptance Test and (if successfully completed) provide Operator a Node Completion Notice. The
foregoing procedure shall repeat in good faith until the Nodes are accepted or deemed accepted.
The date of acceptance of the Nodes (“Node Acceptance”) shall be the earlier of: (a) the
date that Operator delivers a notice of acceptance of the Nodes; (b) the [***] after delivery of
the Node Completion Notice where Operator fails to timely or properly reject such notice, and (c)
the date of Operator’s first use of the Nodes for any purpose other than testing. The parties
understand and agree that Operator may elect to accept Nodes which have not passed Node Acceptance
for purposes of launch and pay the non-recurring charges set forth in §6.1.4 below as well as
commence payment of Monthly Fees for such Nodes pursuant to §6.2 below.


Notwithstanding anything to the contrary herein, if the Operator BTS Host Site is not available for
testing as described above when NextG is ready to perform Node Acceptance Testing, due to the acts
or omissions of Operator, NextG shall perform the remainder of the tests that can be performed
without connectivity to the Operator BTS Host Site. If the Nodes pass all such other tests, the
Nodes shall be deemed accepted as of that date, which date shall be the date of Node Acceptance and
Operator shall immediately commence payment of the Monthly Fees for the affected Nodes and pay the
milestone payment described in §6.1.4 below.




          5.2.6 Subsequent System Optimization. Within [***] following Node Acceptance and Operator’s
payment of the fees and charges contemplated in §5.2.5 above, NextG shall test all Nodes in
accordance with the acceptance test procedure set forth in Attachment F and provide
Operator with a copy of such test results (all obligations are NextG’s unless stated otherwise to
the contrary). For the Node(s) that do not meet the criteria detailed in Attachment F,
NextG shall, at its own cost and within [***] of the date of delivery of the test results described
in the first sentence of this subsection, take such steps as to bring such Node(s) into conformance
with Attachment F, including, but not limited to, [***] or other optimization techniques.
In the event additional Node(s) are required to meet the Attachment F System Acceptance
requirements, §5.2.8 provisions shall apply. However, if Node replacements, additions or
relocations are required to satisfy the requirements of Attachment F, than the [***] time
constraint shall not apply and NextG shall use commercially reasonable efforts to complete any Node
replacements, additions or relocations as expeditiously as possible.



          5.2.7 Node Delivery. By bill of sale or as otherwise reasonably requested by Operator,
promptly after receipt of the final payment specified in §6.1.4 below, NextG shall convey to
Operator all right, title, and interest to the Nodes subject to the underlying NextG and Operator
Authorizations (“Node Delivery “). If conveyance of the Nodes is not requested by
Operator, Node Delivery shall be deemed to have occurred on the date that is [***] after receipt of
the final payment specified in §6.1.4 below. NextG may commence to provide RF Transport and
Monitoring Services with respect to any Nodes connected to the Fiber System and which have passed
Node Acceptance (“Partial Delivery”). [***].





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.





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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




          5.2.8. Node Count Matters. [***].



     5.3 RF Transport and Monitoring Services. From and after the later of the date of (a) Fiber
Acceptance and (b) Node Acceptance for a Network (the “Commissioning Date”), NextG shall
provide to Operator RF Transport and Monitoring Services for the Network as follows:



          5.3.1 RF Transport. Transport Operator’s RF traffic over the Fiber System to and from the
Nodes, specifically from the Hub Node Equipment to the Node Equipment, using a [***] (the “RF
Transport Service”). [***].



          5.3.2 Fiber System Monitoring and Maintenance. Monitor and maintain the Fiber System.



          5.3.3 Node Monitoring. Monitor the Node Equipment and Hub Node Equipment and provide email
notification of alarms and failures as per NextG’s standard operating procedures (together with the
services described in § 5.3.2 above, the “Monitoring Services”).



     5.4 Equipment and Scheduled Durations.



          5.4.1 Equipment Purchase. Operator shall purchase the equipment listed in the Network Order,
which equipment (other than spares) shall be installed by NextG for the consideration stated in the
Network Order. Prices do not include applicable taxes or shipping. Equipment is shipped FCA (free
carrier) San Jose, CA. Thus, risk of loss to the equipment passes to Operator upon delivery of the
equipment by NextG to the designated carrier at NextG’s San Jose, CA facility. All warranties are
passed through from the original equipment manufacturer, are solely between Operator and such
manufacturer(s), and NextG makes no additional warranties whatsoever. Payments under this section
are due upon shipment.



          5.4.2 [***].



          5.4.3 [***].



          5.4.4 [***].



     5.5 Maintenance of Operator Node Equipment.



          5.5.1 If NextG Provides Equipment Maintenance Services. If so provided in the Network Order,
for the Network Term, NextG shall monitor and maintain the Operator Node Equipment in accordance
with the terms of Attachment D hereto (“Equipment Maintenance Services”). [***].
All Unscheduled Maintenance (as defined in Attachment D) shall be performed at the time and
materials charges set forth in Attachment D. If NextG determines that the labor cost to
perform any Unscheduled Maintenance is likely to exceed [***], NextG shall so notify Operator and
wait for confirmation from Operator before proceeding with the work. Any delay in performing the
necessary Unscheduled Maintenance while NextG waits for confirmation from Operator as just
described shall be added to the [***] (as defined in Attachment D hereto). NextG reserves
the right to revise its time and material charges upon [***] prior notice to Operator, [***].



          5.5.2 If Operator Maintains its Own Equipment. If a Network Order does not include Equipment
Maintenance Services, then no NextG equipment RMA/warranty support, maintenance, or repair of any
Operator Equipment is included whatsoever for that Network,





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.



whether as a Monitoring Service or otherwise, at any phase of performance of services for that
Network.




     5.6 [***]. Unless specifically provided otherwise in the underlying Network Order, the fees
enumerated in Network Orders do not cover [***]. If the network design approved by Operator
pursuant to §§ 5.1.1 and 5.2.2 above requires [***] and Operator so desires, NextG will use
commercially reasonable efforts as directed by Operator to obtain the necessary permissions [***]
or on such other terms and conditions as the parties might subsequently agree. NextG shall not
commence performance of any such work unless and until the parties have agreed in writing on the
terms under which NextG shall perform the same. [***].



     5.7 Use of BTS Host Site. If so provided in the underlying Network Order, NextG shall perform
site acquisition for, and provide Operator the use of, a BTS Host Site in accordance with the terms
of the underlying Network Order. Operator shall not be responsible for any BTS rent unless
Operator has demonstrated its approval of the rent in writing by signing the underlying Network
Order.



6 Network Services Fees.




     6.1 Professional & Construction Services Fee. In consideration of NextG‘s performance of the
various professional and construction services described in the applicable Network Order, Operator
shall pay to NextG the professional and construction services fees enumerated in the applicable
Network Order, according to the following milestone payment schedule:



          6.1.1 [***]



          6.1.2 [***]



          6.1.3 [***]



          6.1.4 [***]



     6.2 Monthly Fee.



          6.2.1 In consideration of NextG’s performance of RF Transport and Monitoring Services
specified in § 5.3.1 above, and Scheduled Maintenance Services specified in § 5.5 above (if so
provided in the underlying Network Order), Operator shall pay to NextG, on the first day of each
month after the applicable Commissioning Date, the recurring OPEX Fee specified in the applicable
Network Order (the “Monthly Fee”). The Monthly Fee for any partial month shall be prorated
in accordance with the number of days in any such partial month.



          6.2.2 [***].



     6.3 Adjustments to Monthly Fee. Beginning on the first anniversary of the date that the
Monthly Fee commenced pursuant to § 6.2 above, and then on each subsequent anniversary thereafter
throughout the Network Term and any extensions thereof, the applicable Monthly Fee shall increase
by [***] over the Monthly Fee in effect for the prior year.



     6.4
Purchase of Additional Wavelengths; [***].





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




          6.4.1 Should Operator desire to purchase additional Wavelengths on a Network, [***].



          6.4.2 [***]. NextG shall not commence any such work until the Parties have agreed in writing
on the cost to perform the work, and NextG has received Operator’s purchase order for such work.
Operator’s use [***] shall be subject to all of the terms and conditions set forth herein.



     6.5 Pass Through Fees. To the extent that NextG pays any fees on behalf of Operator in the
process of applying for or obtaining any Operator Authorizations or otherwise in connection with
the installation of the Nodes, NextG shall be reimbursed for [***].



     6.6 [***].



     6.7 Node Optimization. [***].



7. Default. A Party shall be in default under this Agreement in any of the
following circumstances and the non-defaulting party shall be entitled to avail itself of any
remedies available at law or in equity not otherwise limited by the terms of this Agreement or the
applicable Network Order:



     7.1 such Party fails to pay any payments required under this Agreement or any Network Order
within [***] after receiving written notice of such failure to pay by the applicable due date; or



     7.2 such Party fails to perform or observe any other material term, covenant, provision, or
condition of this Agreement or any Network Order, but, in each case, only if such breach remains
uncured thirty (30) days after the breaching Party receives written notice of such breach; provided
that, if the breach is of a nature or involves circumstances reasonably requiring more than thirty
(30) days to cure, then the time period may be extended for an additional 30-day period if the
breaching Party proceeds diligently to cure the breach.



8. Force Majeure




     8.1 Force Majeure Defined. Notwithstanding anything to the contrary herein or any Network
Order, neither Party will be considered in breach for a failure or delay in performance of one or
more of its obligations under this Agreement or a Network Order if such failure or delay is
directly caused by or attributable to the occurrence of a Force Majeure Event (as defined below)
for so long as such Force Majeure Event remains applicable. “Force Majeure Event “ means
any event or cause beyond the reasonable control of the Party claiming relief, including without
limitation any action by or omission of a University, a governmental agency or authority, material
shortages not caused by a failure to place timely orders therefore, third-party labor dispute,
flood, earthquake, fire, lightning, epidemic, war, riot, civil disturbance, act of public enemy or
enemies, terrorist act, sabotage, or acts of God; provided, however, (a) either Party’s failure for
any reason to pay money when due pursuant to this Agreement or otherwise, and (b) the failure,
inoperability, unavailability, or malfunction of any Operator Equipment for any reason, are
expressly excluded from this definition. A Force Majeure Event shall exclude NextG’s ability to
obtain the necessary permits, authorizations or approvals in a timely manner to support the
scheduled launch on November 21, 2006.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




     8.2 [***].



     8.3 [***].



     8.4 Force Majeure Termination Events. Either Party may terminate the affected portion of this
Agreement upon not less than [***] written notice to the other Party if (i) any Force Majeure Event
(as defined in § 8.1 above) applicable to the other Party results in that other Party’s inability
to perform its obligations under this Agreement for a period of [***] or more; or (ii) any Force
Majeure Event applicable to the terminating Party results in the terminating Party’s inability to
perform its obligations under this Agreement for a period of [***]. Upon any such cancellation,
Operator shall pay any invoices for milestones earned or achieved by NextG up to and including the
effective date of termination, and upon such payment each party shall thereafter be relieved of all
further liability with respect to the cancelled portion of this Agreement except that a party shall
continue to be liable for any breaches that occurred prior to the termination.


9. Insurance. The parties agree to procure and maintain the insurance policies
and coverages described below throughout the Term of this Agreement.




     9.1 NextG Insurance. At NextG’s sole cost and expense, NextG will procure and maintain during
the Term: (a) workers’ compensation insurance (at statutory limits) and employer’s liability
insurance with minimum limits of Five Hundred Thousand Dollars ($500,000); (b) commercial general
liability and property damage insurance (including completed operations and contractual liability)
in an amount equal to at least Two Million Dollars ($2,000,000) combined single limit; (c) “all
risk” property insurance insuring the NextG Equipment and its related personal property for its
full replacement cost; and (d) Professional Liability in an amount equal to at least Two Million
Dollars ($2,000,000). All such policies shall (w) be written by one or more reputable insurers,
reasonably acceptable to Operator, and licensed to do business in the state in which the Network is
to be located; (x) shall apply as primary insurance, and that any other insurance carried by
Operator will be excess only, and will not contribute with such insurance; (y) provide that no
cancellation of coverage shall occur without thirty (30) days’ prior written notice to Operator,
and (z) be evidenced by a Certificate of Insurance furnished to Operator promptly following the
Effective Date, which NextG shall replace with a new Certificate at least thirty (30) days prior to
the expiration or termination of any expiring or terminating policy.



     9.2 Operator Insurance. Operator will maintain general liability and property damage
insurance of the types and in the amounts consistent with its insurance practices in the ordinary
course of Operator’s business. Such insurance coverages shall include (a) sufficient property
damage coverage to insure loss of the Operator Equipment with a per-project endorsement, and
(b) sufficient liability coverage to insure all potential liability under this Agreement with a
per-project endorsement. Operator shall supply to NextG evidence of the insurance coverages
required under this section within thirty (30) days of Operator’s receipt of written request by
NextG.



10. Warranty; Limitations of Liability and Warranty; Indemnities




     10.1 Warranty. If, within [***] after the date of delivery of the Nodes
under a Network Order, any of the construction work or performance of the Network, NextG Equipment
or Nodes is found to be defective and not in conformance with the requirements of the Agreement or
Network Order, NextG shall promptly correct the defective work after receipt of written notice





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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from Operator to do so. Operator must give such notice within [***] after the expiration of
the [***] warranty period; provided, however, that any such corrective action shall not extend the
original [***] warranty period.




     10.2 Limitations of Liability. THE TOTAL LIABILITY OF EACH PARTY TO THE
OTHER PARTY FOR DAMAGES UNDER ANY NETWORK ORDER, EXCLUDING LIABILITIES UNDER [***], IS LIMITED TO
THE TOTAL AMOUNT PAYABLE BY OPERATOR TO NEXTG FOR SERVICES PROVIDED UNDER THE AFFECTED NETWORK
ORDER(S). EXCLUDING LIABILITIES UNDER [***], NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY NETWORK ORDER EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF THE DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. THE LIMITATIONS SET FORTH IN THIS §10.2 WILL APPLY, WITHOUT LIMITATION, TO LOSS OF PROFITS
OR REVENUE (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR
DEGRADATION OF SERVICE, OR OTHERWISE) OR CLAIMS OF CUSTOMERS, WHETHER OCCASIONED BY ANY
CONSTRUCTION, RECONSTRUCTION, RELOCATION, REPAIR, OR MAINTENANCE PERFORMED BY, OR FAILED TO BE
PERFORMED BY, THE OTHER PARTY OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH
OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY.



     10.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY NETWORK
ORDER, NEXTG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY AND ALL
WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.



     10.4 Indemnities



          10.4.1 Indemnification by NextG. In addition to the other express indemnification provisions
contained in this Agreement and subject to § 10.2, NextG agrees to indemnify, defend, protect, and
hold harmless Operator and Operator’s Representatives from and against all losses, damages,
liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses), claims,
suits, demands, actions, or causes of action of whatever kind or nature brought by a third party
(collectively “Claims”) arising out of or in connection with, or alleged to arise out of or
in connection with, NextG’s or its Representatives’ (a) infringement or misappropriation of
intellectual property rights, (b) breach of any term or condition of this Agreement or a Network
Order, or (c) negligence or intentional misconduct in connection with a Network or its (or their)
obligations under this Agreement or a Network Order.



          10.4.2 Indemnification by Operator. In addition to the other express indemnification
provisions contained in this Agreement and subject to § 10.2, Operator agrees to indemnify, defend,
protect, and hold harmless NextG and NextG’s Representatives from and against all Claims arising
out of or in connection with, or alleged to arise out of or in
connection with: (a) Operator’s or its
Representatives’ (i) infringement or misappropriation of intellectual property rights, (ii)
breach of any term or condition of this Agreement or a Network Order, or (iii) negligence or
intentional misconduct in connection with a Network, or its (or their) obligations under this
Agreement or a Network Order; or (b) Operator’s customers’ indirect use of the Network, including,
without limitation, defamation, libel, slander, obscenity, pornography, or





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
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violation of the rights of privacy or publicity, or spamming or any other tortuous or illegal
conduct.




     10.5 Responsibility for Damage. Subject to the limitations set forth elsewhere in this §10,
each Party shall exercise due care to avoid damaging the other Party’s property and shall be
responsible for any damage caused by (a) the negligence or willful misconduct of such Party or its
Representatives, (b) a violation of law by such Party or its Representatives, or (c) the breach of
this Agreement or a Network Order by such Party or its Representatives.



11. Ownership of Confidential Information and Intellectual Property.



     11.1 General. As between the Parties, all “Confidential Information” (as defined below) and
Intellectual Property furnished by one Party to the other Party or any other third party related to
this Agreement or a Network Order or otherwise accessed in relation to this Agreement or a Network
Order belong to the furnishing Party and will remain the furnishing Party’s sole and exclusive
property. As between the Parties, each Party retains all right, title, and interest in and to its
respective Intellectual Property.



     11.2 Confidential Information. NextG and Operator shall keep the terms and conditions of this
Agreement and each Network Order strictly confidential. In addition, each Party may have access
(in such role, the “Receiving Party”) to certain confidential information of the other
Party (the “Disclosing Party”) concerning the Disclosing Party’s business, plans,
customers, technology, and Services, and other information held in confidence by the other Party
(“Confidential Information”). Confidential Information includes, without limitation, all
information in tangible or intangible form that is marked or designated as confidential or that,
under the circumstances of its disclosure, should be considered confidential. Confidential
Information will also include, but not be limited to, Intellectual Property and the rights embodied
therein, non-public information relating to the customers of either Party, and the terms and
conditions and existence of this Agreement and each Network Order. Confidential Information
includes, without limitation, all information about the Disclosing Party or about any other Person
(which information was provided to the Disclosing Party subject to an applicable confidentiality,
non-disclosure, non-use, or fiduciary obligation to such Person) provided by the Disclosing Party
or the Disclosing Party’s Representatives to the Receiving Party or to the Receiving Party’s
Representatives, in each case whether such information is furnished on, before, or after the
Effective Date, regardless of the manner or medium in which such information is furnished,
including information about the Disclosing Party’s or such other Person’s current and prospective
properties, Representatives, finances, businesses, operations, research, Service plans, or other
information regarding current or prospective Services or services, markets for Services or
services, customer lists, current and prospective customers, software, developments, inventions,
processes, formulas, technologies, designs, drawings, engineering specifications, engineering
information, hardware configuration information, marketing, business strategies, maps, pricing,
dark fiber specifications, lists of on-network locations, or other business information. Claims for
beach of this confidentiality covenant shall be limited to damage claims only and shall not in and
of themselves be a basis for termination of this Agreement.



     11.3 Nondisclosure of Confidential Information. Each Party shall not use in any way, for its
own account or the account of any third party, except as expressly permitted by, or required to
fulfill its obligations under, this Agreement or a Network Order, nor disclose to any third party
(except as required by law, or to that Party’s independent contractors, attorneys, accountants, and





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
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other advisors as reasonably necessary), any of the other Party’s Confidential Information and
will take reasonable precautions to protect the confidentiality of such information, which
precautions, in any event, will be at least as stringent as it takes to protect its own
Confidential Information. NextG may require, as a condition of gaining access to any NextG
facility, that employees and other visitors of Operator seeking such access execute a
non-disclosure agreement that is consistent with Operator’s confidentiality obligations under this
section.




     11.4 Exceptions. Information will not be subject to the restrictions in §11.3 above to the
extent such information: (a) is known to the Receiving Party prior to receipt from the Disclosing
Party directly or indirectly from a source other than the other Party or a source having an
obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of
disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing Party; (c) becomes
publicly known or otherwise ceases to be secret or confidential, except through a breach of this
Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party without
the use of Confidential Information. The Receiving Party may disclose Confidential Information
pursuant to the requirements of a governmental agency or by operation of law, provided that, unless
restricted by order of a governmental agency or otherwise restricted by law, the Receiving Party
provides reasonable notice to the Disclosing Party of the required disclosure so as to permit the
Disclosing Party to respond to such request for disclosure.



12. Representations, Warranties, and Covenants.




     12.1 Mutual Representations and Warranties. Each Party represents and warrants to the other
Party on the Effective Date that: (a) such Party is duly organized, validly existing, and in good
standing under the laws of the state of such Party’s organization; (b) such Party is or will be in
good standing and duly qualified to do business in the state in which services are to be provided
under this Agreement; (c) such Party has, or prior to performance hereunder will have, all
requisite power and authority to enter into and perform such Party’s obligations under this
Agreement; (d) this Agreement when executed, is and will be such Party’s legal, valid, and binding
obligation; and (e) to such Party’s knowledge, as of the Effective Date, such Party’s performance
of such Party’s obligations under this Agreement do not infringe on any Person ‘s intellectual
property rights.



     12.2 NextG Covenants.



          12.2.1 Compliance with Laws. NextG’s performance of all obligations will be in compliance
with all applicable federal, state or local laws, rules, and regulations that are imposed by any
federal, state, or local governmental agency or department of any such governmental agency. NextG
will perform all obligations in a timely, professional and workmanlike manner.



          12.2.2 Ownership. This Agreement (taken together with all Network Orders) does not grant NextG
any ownership rights or ownership interest or license in any Operator Equipment, in any Operator
Intellectual Property, or in any Operator Confidential Information, and NextG will not assert any
such rights or licenses.



          12.2.3 Labeling. Unless authorized in writing by Operator, NextG will not remove, overprint,
or deface any notice of copyright, trademark, logo, legend, or other ownership notice from any
Operator Equipment, any original copies of Operator’s Confidential Information,





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
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or any secondary copies of Operator’s Confidential Information, or from any other Person‘s
equipment, original copies of Confidential Information, or secondary information that may be
provided by Operator to NextG.




          12.2.4 NextG Assessments. NextG is solely responsible for calculating and remitting any and
all NextG Assessments and any and all Operator Assessments that NextG is legally required to
collect from Operator. Operator is not directly or indirectly responsible in any way for NextG’s
payment or remittance of NextG Assessments. NextG will pay any and all NextG Assessments directly
to the appropriate Persons, unless otherwise required by law. Further, NextG shall pay to Operator
all NextG Assessments that are imposed by any Person on Operator. If NextG is exempt from paying
or is exempt from liability for any such NextG Assessments, then NextG will provide Operator with a
certificate evidencing NextG’s exemption from such payment or such liability. Operator shall remit
such NextG Assessments to the appropriate Persons as identified by NextG. NextG will fully
indemnify, defend and hold Operator and Operator’s Representatives harmless, and each of them from
and against any damages, penalties, fines, costs, or expenses paid by Operator or by Operator’s
Representatives because of, relating to, arising out of, or arising in connection with NextG’s
failure to comply with the terms of this § 12.2.4.



          12.2.5 NextG warrants that it has the experience and skills necessary to provide and perform
the services required pursuant to this Agreement; all services provided by the NextG shall be
performed in a professional manner in accordance with all professional standards applicable to the
NextG, shall be of a high grade, nature and quality, commensurate with that which is customary in
the industry and shall be in conformance with Operator’s rules while NextG is on Operator’s
premises.



          12.2.6 [***].



     12.3 Operator Covenants.



          12.3.1 Compliance with Laws. All Operator Equipment installed, operated, maintained, and used
by Operator, and Operator’s performance of its obligations under this Agreement and each Network
Order, will comply with all applicable laws, statutes, ordinances, and regulations, including
without limitation those regulations promulgated by the Federal Communications Commission.



          12.3.2 Ownership. This Agreement is not intended to, and shall not be interpreted to, grant
Operator any property rights, interests, or licenses in the NextG Network, in any Network Vendor‘s
network, or in any Intellectual Property or Confidential Information of NextG or of any Network
Vendor, and Operator will not assert any such rights, interest or licenses.



          12.3.3 Intellectual Property. Operator shall not reverse-engineer, decompile, or disassemble
any hardware, any software, or any other Intellectual Property provided or disclosed to Operator.
Operator shall not remove, overprint, or deface any notice of copyright, trademark, logo, legend,
or other ownership notice from any NextG Equipment, any original copies of NextG’s Confidential
Information, or any secondary copies of NextG’s Confidential Information, or from any other
Person‘s equipment, original copies of Confidential Information, or secondary information that may
be provided by NextG to Operator.





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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          12.3.4 Liens. Operator shall not permit any mechanic’s liens, materialman’s liens,
contractor’s liens, subcontractor’s liens, security interests, or other claims or demands arising
from work performed for or on behalf of Operator to attach to, or be enforced against, any part of
the NextG Network or any part of any Network Vendor‘s network. If Operator’s actions cause such
lien to be filed against any part of a NextG Network or any part of a Network Vendor’s network,
then Operator will have the next thirty (30) days to contest such lien and to have such lien
released by payment, bond, court order, or otherwise. If any such liens arising from work
performed for or on behalf of Operator are not released within such 30-day time period, then
Operator will reimburse NextG for any costs, including without limitation attorneys fees,
reasonably incurred by NextG in connection therewith. At any time, NextG will have the right to
post and maintain upon any part of the NextG Network or any part of any Network Vendor’s network
any notices that may be necessary to protect NextG and/or each Network Vendor against liability for
all such liens, encumbrances, claims, or demands.



          12.3.5 Excessive Noise. During normal operations, the Operator Equipment will not generate
excessive or objectionable noise levels. Notwithstanding the foregoing, operation of Operator
Equipment in accordance with manufacturer’s performance specifications shall not under any
circumstances constitute a default under this § 12.3.5.



          12.3.6 Operator Assessments. Operator is solely responsible for calculating and remitting any
and all Operator Assessments, for determining whether such Operator Assessments should be paid to
NextG or directly to the appropriate Persons, and for identifying the Persons to whom NextG must
remit any Operator Assessments to be collected by NextG. Operator shall pay to NextG all Operator
Assessments that are imposed by any Person on NextG. If Operator is exempt from paying or is
exempt from liability for any such Operator Assessments, then Operator will provide NextG with a
certificate evidencing Operator’s exemption from such payment or such liability. NextG shall remit
such Operator Assessments to the appropriate Persons as identified by Operator. Operator will fully
indemnify NextG and NextG’s Representatives for any damages, penalties, fines, costs, or expenses
paid by NextG or by NextG’s Representatives because of, relating to, arising out of, or arising in
connection with Operator’s failure to comply with the terms of this § 12.3.6.



13. Notices.



     13.1 General. All notices and other communications required or permitted under this Agreement
and each Network Order must be in writing and will be sent by facsimile; reliable overnight air
courier; registered or certified mail, postage prepaid, or otherwise delivered by hand or by
messenger addressed to Cricket Communications, Inc. 10307 Pacific Center Court, San Diego, CA 92121
Attn: Vice President, Network, fax number [number omitted from external version] with a copy to
Vice President, Legal in the case of Operator, and 2216 O’Toole Avenue, San Jose, CA 95131, Attn:
General Counsel, Fax number [number omitted from external version] in the case of NextG, or to such
other address as a Party shall have furnished to the other Party in accordance with this § 13.



     13.2 Effectiveness. For all purposes of this Agreement and each Network Order, each such
notice or other communication will be deemed received when delivered, if delivered personally, or,
if sent by mail, then at the earlier of its receipt or seventy-two (72) hours after such
communication has been deposited in a regularly maintained receptacle for the deposit of the United
States mail, postage prepaid, addressed and mailed as set forth above or, if sent by





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
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facsimile, upon confirmation of facsimile transfer; or if sent by reliable overnight air
courier, on the next business day.




14. Network Access.




     14.1 Access Grant. Operator will provide NextG with continuous and full access to all BTS Host
Sites, and all Operator Equipment on real property in which Operator has a legal interest for all
purposes related to NextG’s rights or obligations under this Agreement and each Network Order.
Operator will permit NextG to inspect Operator’s use of the services and the related Operator
Equipment upon not less than forty-eight (48) hours prior written notice to Operator, except in the
event of a bona fide emergency. [***]. On or prior to the dates specified herein, Operator shall
identify, pay for, obtain and maintain all Operator Authorizations at Operator’s sole cost and
expense. Operator acknowledges that, without the Operator Authorizations and appropriate
permissions from Operator and the appropriate third-parties (including but not limited to property
managers, owners, and landlords), NextG and its authorized personnel cannot access Operator
Equipment, any Nodes or BTS Host Sites, and other relevant equipment and facilities and
consequently may be delayed in performance of or unable to perform NextG’s obligations under this
Agreement.



     14.2 [***].



     14.3 No Operator Access. Operator understands that only NextG and its authorized personnel
may access, maintain and control each Network and all associated hardware and equipment connected
thereto.



     14.4 Planned Service Work Periods (PSWP). Scheduled maintenance which is reasonably expected
to produce any signal discontinuity or other interruption of the normal operation of Operator
Equipment shall be coordinated between the Parties in a manner which minimizes interruption to
services provided to the customers of Operator and shall be subject to the prior approval of
Operator which shall not be unreasonably withheld, conditioned or delayed. Unless prior approval
has been obtained from Operator in writing, PSWP work will only be scheduled after midnight and
before 6:00 a.m. local time. Major system work, such as fiber rolls and hot cuts, will be
scheduled and subject to the approval of Operator for PSWP weekends, which approval shall not be
unreasonably withheld, delayed, or conditioned. A calendar showing approved PSWP will be agreed
upon in writing in the last quarter of every year for the year to come. The intent is to avoid
jeopardy work on the first and last weekends of the month and high-traffic holidays.



     14.5 Outages. NextG shall provide continuous remote monitoring of each Fiber System.
Operator may notify NextG of problems by telephone at [number omitted from external version] or by
such other means as the Parties may agree. NextG will respond by notifying the Network Vendor (if
applicable) and taking actions as determined in NextG’s sole discretion. If an Outage or other
problem is caused by a failure in a Fiber System, then NextG will respond within [***] of becoming
aware of the Outage or other problem by making commercially reasonable efforts to correct the same
and diligently prosecuting such efforts to completion. Outage Credits, if any, shall be payable in
accordance with the terms of Attachment A hereto.


15. Additional Network Services. NextG shall provide any additional network
services that may subsequently be agreed upon by Operator and NextG on the basis of such terms and






 




			
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conditions, and for such additional consideration, as the Parties might hereafter mutually agree in
writing.




16. Miscellaneous. The miscellaneous provisions that follow in this § 16 shall
apply generally to the Parties’ performance of their respective obligations under this Agreement
and each Network Order.



     16.1 Emergencies. If the NextG Equipment (in which case NextG is the “Responsible
Party”) or Operator Equipment (in which case Operator is the “Responsible Party”)
causes a bona fide emergency situation, then upon notice, the Responsible Party will act diligently
and expediently to remedy such bona fide emergency situation. If the Responsible Party does not
remedy the bona fide emergency situation as soon as practicable after receiving such notice, or if
the other Party reasonably determines that the Responsible Party’s practicable response time is
inadequate given the nature of the emergency and other reasonably relevant circumstances, then the
other Party may take any commercially reasonable action as necessary to avoid or minimize the
consequences of such bona fide emergency situation. In such a case, the Responsible Party will
have no recourse against the other Party for the other Party’s commercially reasonable actions
taken in response to such emergency situation. Notwithstanding the foregoing provisions of this
§ 16.1, if the Responsible Party is acting in good faith to address and correct the emergency
situation, then the other Party will restore whatever services it may previously have disrupted to
permit the Responsible Party to continue its efforts to remedy the emergency situation.



     16.2 Collateralization. Nothing in this Agreement shall preclude NextG from hypothecating,
allowing a security interest to attach to, or assigning as collateral each of its Networks, but
excluding the Operators Networks, the Operators BTS Host Site or any other property (real or
personal) of Operator. This section will not be construed to relieve NextG of any of its
obligations with regard to NextG Authorizations under this Agreement. Nothing in this Agreement
shall preclude Operator from hypothecating, allowing a security interest to attach to, or assigning
as collateral the Operator Equipment. This section will not be construed to relieve Operator of
any of its obligations with regard to Operator Authorizations under this Agreement.



     16.3 Publicity. Neither Party may issue any advertising, marketing, promotional, or other
publicity material using the other Party’s name or marks or describing in any way the existence or
terms of this Agreement or any Network Order without first receiving the other Party’s prior
written consent, which consent may be withheld by either party in its sole discretion.



     16.4 Governing Law; Time is of the Essence. This Agreement and each Network Order will be
governed and construed according to the laws of the State of California and the United States
without regard to conflicts-of-law principles. Time is of the essence under this Agreement, each
Network Order, and all of their respective provisions.



     16.5 No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in
this Agreement and each Network Order are solely for the benefit of and enforceable by the Parties
or their respective successors or permitted assigns, and no such covenants, undertakings, or
agreements will confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.



     16.6 Independent Contractors. The Parties’ relationship under this Agreement and each Network
Order is not that of partners or agents for one another, and nothing contained in this





 




			
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Agreement or any Network Order will be deemed to constitute or imply a partnership, joint
venture, or agency agreement between the Parties, except to the extent an agency relationship is
expressly created in any specific provision of this Agreement or any Network Order. This § 16.6 is
not intended to restrict the Parties’ rights to perform particular obligations on behalf of each
other as expressly set forth in this Agreement or any Network Order.




     16.7 Exclusivity. Except as otherwise expressly limited in this Agreement or any Network
Order, the rights and remedies set forth in this Agreement and each Network Order are in addition
to, and cumulative of, all other rights and remedies at law or in equity.



     16.8 Severability. If any provision of this Agreement or any Network Order becomes or is
declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then all
remaining provisions of this Agreement or the Network Order will continue in full force and effect
without such provision and without affecting the remaining provisions of this Agreement or the
Network Order, as the case may be; and, in such a case, the Parties agree to negotiate in good
faith a valid, legal, and enforceable substitute provision which as nearly as possible effects the
Parties’ intent in entering into this Agreement or the Network Order.



     16.9 Amendment. Except as expressly provided in this Agreement or a Network Order, neither
this Agreement nor any term of this Agreement, nor any Network Order nor any term of any Network
Order, as the case may be, may be amended, waived, discharged, or terminated other than by a
written instrument referencing this Agreement or the Network Order, as the case may be, and signed
by NextG and Operator.



     16.10 Waivers. Except as expressly provided in this Agreement or any Network Order, no delay
or omission to exercise any right, power, or remedy accruing to any Party upon any breach or
default of the other Party under this Agreement or the Network Order, as the case may be, will
impair any such right, power, or remedy of such non-defaulting Party, nor will it be construed to
be a waiver of any such breach or default or an acquiescence therein, or of or in any similar
breach or default thereafter occurring. In addition, no waiver of any single right, breach or
default shall be deemed a waiver of any other right, breach or default occurring before or after
such waiver. Any waiver, permit, consent, or approval of any kind or character on the part of any
Party of any breach or default under this Agreement or any Network Order, or any waiver on the part
of any Party of any provisions or conditions of this Agreement or any Network Order must be in
writing and will be effective only to the extent specifically set forth in such writing.



     16.11 Counterparts. This Agreement and any Network Order, as the case may be, may be
-executed in multiple counterparts, all of which taken together constitute one and the same
instrument and each of which will be enforceable against the Party that executed such counterpart.



     16.12 Conflicts. If any irreconcilable conflict exists between any terms of this Agreement,
any Network Order, and/or the Attachments attached hereto or thereto, or other documents
subsequently signed by the Parties, the conflicting terms will control such irreconcilable conflict
in the following order, from most controlling to least controlling: (i) the Network Order; (ii) any
document which by its terms clearly amends this Agreement, any Network Order, or any Attachments
attached hereto or thereto; (iii) the Attachments attached hereto or to the Network Order; and (iv)
this Agreement.





 




			
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Commission.




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     16.13 Survival. All provisions of this Agreement and any Network Order that by their terms
should logically survive the expiration or termination of this Agreement or the Network Order, as
the case may be, shall survive the expiration or termination of this Agreement.



     16.14 Assignment. NextG may not assign or otherwise transfer all or any part of this
Agreement or any Network Order without the prior written consent of Operator, which consent shall
not be unreasonably withheld, conditioned, or delayed, except to an Affiliate of NextG or to a
Person that succeeds to all or substantially all of NextG’s business, equity, or assets, whether by
sale, merger, operation of law, or otherwise for which no consent is required. Operator may not
assign or otherwise transfer all or any part of this Agreement or any Network Order without the
prior written consent of NextG, which consent shall not be unreasonably withheld, conditioned, or
delayed, except to an Affiliate or to a Person that succeeds to all or substantially all of the
Operator‘s business, equity, or assets, whether by sale, merger, operation of law, or otherwise for
which no consent is required. Any other attempt to transfer or assign shall be void without the
prior written consent of the other Party. Subject to the foregoing, the provisions of this
Agreement and any Network Order will inure to the benefit of, and be binding upon, the Parties’
permitted successors, assigns, heirs, executors, and administrators. Any assignment or other
transfer permitted pursuant to this §16.14 shall not relieve the assignor/transferor of liability
for the performance of its obligations under this Agreement or the Network Order, as the case may
be.



     16.15 Subcontracting. NextG may subcontract or delegate any of its obligations under this
Agreement and any Service Order without Operator’s consent. No delegation or subcontracting shall
relieve NextG of its liability for the performance of its obligations under this Agreement.



     16.16 Further Assurances. Each Party agrees to execute and deliver, by the proper exercise of
its corporate, limited liability company, partnership, or other powers, all such other and
additional instruments and documents and do all such other acts and things as may be commercially
reasonable and necessary to more fully effectuate this Agreement and any Network Order, provided
that such documentation shall not enlarge the potential scope of liability or cost, or materially
reduce the rights afforded either Party under this Agreement or any Network Order.



     16.17 Telecopy Execution and Delivery. A facsimile, telecopy, or other reproduction of this
Agreement or any Network Order, as the case may be, may be executed by one or both Parties, and an
executed copy of this Agreement or any Network Order, as the case may be, may be delivered by one
or both Parties by facsimile or other electronic transmission device pursuant to which the
signature of or on behalf of such Party can be seen; and such execution and delivery will be
considered valid, binding, and effective for all purposes. At the request of either Party, the
other Party agrees to execute an original of this Agreement or the Network Order, as the case may
be, to replace the facsimile, telecopy, or other reproduction of this Agreement or the Network
Order.



     16.18 Incorporation of Exhibits and Attachments. The various Exhibits and Attachments
referred to herein are hereby incorporated by reference and made a part of this Agreement.



     16.19 Disputes. The Parties recognize that disputes as to certain matters may from time to
time arise in relation to this Agreement and a Network Order. It is the objective of the Parties
to establish procedures to facilitate dispute resolution hereunder expediently, cooperatively, and
non-





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
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litigiously. Nothing in this Agreement or any Network Order, however, is intended to prevent
a Party from seeking injunctive relief if that Party believes that compliance with this section
would cause it irreparable harm. Any other disputes shall be first referred to each Party’s
applicable Liaison (as defined below). If the Liaisons cannot resolve such dispute after efforts
in good faith, each Party shall refer the dispute to a senior officer (no less than vice-president
level) designated as responsible for resolving disputes. If the senior officers are unable to
resolve the dispute after efforts in good faith within thirty (30) days of referral of the dispute,
either Party may, by written notice to the other, resort to arbitration as set forth in § 16.20
below. Each Party shall appoint a representative in charge of acting as liaison to the other Party
with regard to this Agreement and Network Orders (the “Liaison.”) The Liaisons shall be
responsible for initial points of communication with respect to any issues that may arise. The
Parties shall notify each other in writing of changes of the Liaison.




     16.20 Arbitration. Any dispute or claim arising out of this Agreement or any Network Order
will be settled by final and binding arbitration in accordance with the then-current arbitration
rules of the American Arbitration Association (the “Rules“), by three arbitrators, one selected by
each Party and the third appointed in accordance with said Rules. Each arbitrator must be selected
in accordance with the Rules and an attorney with not less than ten (10) years of commercial legal
experience in the areas of telecommunications law and other areas of the law applicable to the
dispute in question. Judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The arbitrators shall apply California law to the merits of any
dispute or claim, without reference to conflicts of law principles. Notwithstanding the foregoing,
the Parties may apply to any court of competent jurisdiction for a temporary restraining order,
preliminary injunction, or other injunctive, interim or conservatory relief, as necessary, without
breach of this § 16.20 and without any abridgment of the powers of the arbitrators. The costs of
the arbitration or any legal action between the Parties (including without limitation a motion to
compel arbitration), including administrative, arbitrator, attorney, and expert witness fees shall
be paid by the losing Party. The judgment of the arbitrators may be appealed by either Party to
the extent permitted by applicable law. In the case of any such appeal, the losing Party shall
bear all reasonable costs and attorneys’ fees of both Parties. In the event either Party notifies
the other that it intends to request an arbitration proceeding to resolve any disputed claims
arising under this Agreement or any Network Order, upon providing said notice, Operator agrees to
place all disputed and withheld amounts, if any, on an on-going basis, with a mutually agreeable
escrow agent. The escrow agent shall be entitled to release such funds as directed by the
arbitrator in the award, unless the Parties agree otherwise in writing.



     16.21 [***].



     16.22 Change Orders. The Parties may request modifications to the underlying Network and Node
designs (a) as reasonably necessary to ensure adequate performance of the Network, or (b) based on
changes in BTS or Node locations requested by Operator. Any such requests for modification shall
be submitted to the other Party in writing. NextG will submit to Operator a modified design, any
expected delays in delivery dates, and a summary of any additional fees, costs, charges and
expenses for which Operator would be responsible due to the modification. The Parties shall approve
in writing the modifications before NextG implements any changes. NextG may make minor
modifications to the designs without the prior written agreement of Operator provided the same
causes no additional expense to Operator.





 




			
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Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.




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     16.23 Liens. NextG will not permit any mechanics’ or materialmen’s or other liens to be filed
by any subcontractor or material supplier of NextG on the Operator Equipment, Operators BTS Host
Site or any other property (real or personal) of Operator. NextG shall have the right to contest
the validity or the amount of any such lien but, on the final determination of such contest, shall
immediately pay any adverse judgment rendered with all proper fees, costs and charges and shall
have the lien released at its own expense. If NextG desires to contest any such lien, then prior
to commencing such contest, it will furnish Operator with a bond in the amount and in the type
required by law, which bond shall release the property from the lien and secure the payment of such
obligation to the subcontractor or material supplier.



     16.24 Maintain Site Cleanliness. During the course of the work, NextG shall keep each work
site “broom clean”, as that term is commonly used, and free from accumulation of any waste
material, dust and rubbish attributable to NextG, and at the completion of the work, shall remove
from the site all of NextG’s rubbish, implements and surplus materials.



     16.25 Access to Work Site. NextG shall provide Operator and its authorized representative(s)
with open access to the work in preparation and progress wherever located, subject to applicable
work site rules and safety considerations.



     16.26 Lien Waivers. NextG’s final invoice shall be accompanied by complete and legally
sufficient waivers, conditional upon final payment by Operator, for release of all liens, which
lien waivers shall be properly executed by NextG and any subcontractors. Upon Operator’s request,
NextG shall also submit its affidavit that all persons who have furnished labor, materials,
equipment and services for which a lien could be filed or for which Operator or its property might
in any way be responsible have been paid or otherwise satisfied. If any lien is either imposed or
remains unsatisfied after all payments are made, NextG shall, by bonding or otherwise, secure the
prompt discharge of such lien or shall refund to Operator any expense which Operator may be
compelled to incur in discharging such liens, including, but not limited to, all reasonable
attorneys’ fees and costs.



     16.27 Operator Property. Title to all property owned by Operator and furnished to NextG shall
remain in Operator. Any property owned by Operator and in NextG’s possession or control shall be
used only in the performance of the work unless authorized in writing by Operator. NextG shall
adequately protect such property, and shall deliver or return to Operator or otherwise dispose of
it as directed by Operator.



     16.28 [***].



     16.29 California Public Utility Commission Statement – Applicable Only to Network Orders for
Networks to be Located in California. The following statements are required by Section X(A) of
General Order 96-A of the California Public Utility Commission (the “Commission”): “This
contract shall not become effective until authorization of the Public Utilities Commission of the
State of California is first obtained.” “This contract shall at all times be subject to such
changes or modifications by the Public Utilities Commission of the State of California as said
Commission may, from time to time, direct in the exercise of its jurisdiction.”


NextG will file a copy of the Network Order and this Agreement with the Commission. Per applicable
Commission rules and procedures, the Network Order and this Agreement will be






 




			
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deemed approved by the Commission and become automatically effective 14 days following filing with
the Commission unless the Commission objects during such 14-day comment period.



17. Whole Agreement. This Agreement, together with any Attachments hereto, constitutes
the full and entire understanding and agreement between the Parties with regard to the subjects
hereof or thereof and supersedes any and all prior or contemporaneous oral or written negotiations,
understandings, and agreements. No Party will be liable or bound to the other Party in any manner
with regard to the subjects hereof by any warranties, representations, or covenants except as
specifically set forth herein. The mutual obligations of the Parties as provided herein are the
sole consideration for this Agreement, and no representations, promises, or inducements have been
made by the Parties other than as appear in this Agreement, which supersedes any previous
negotiations.




Authorized Signatures



Intending to be legally bound, authorized representatives of the parties have executed this Master
RF Transport Agreement effective as of the Effective Date.




	 	 	 	 	 	 	 	 	 	 	 
	NEXTG NETWORKS, INC.,	 	 	 	CRICKET COMMUNICATIONS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	A DELAWARE CORPORATION 	 	 	 	A DELAWARE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John B. Georges
	 	 	 	By:
	 	/s/ Glenn Umtesu	 	 
	 

	 	 

John B. Georges
	 	 	 	 	 	 

          
Signature
	 	 
	 

	 	Chief Executive Officer	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Its:
	 	Glenn Umtesu, EVP & CTO	 	 
	 

	 	 	 	 	 	 	 	 

          Print Title
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	February 10, 2006
	 	 	 	Date:
	 	 February 10, 2006	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	2216 O’Toole Avenue	 	 	 	10307 Pacific Center Court	 	 
	San Jose, CA 95131	 	 	 	San Diego, CA 92121	 	 






Schedule of Attachments:




	 	 	 	 	 	 	 
	Attachment Reference	 	Attachment Description	 	Where Described in the Agreement
	Attachment A	 	Service Level Agreement
	 	 	§1.17	 
	Attachment B	 	Sample Network Order
	 	 	§3.1	 
	Attachment C	 	Sample Termination Calculation
	 	 	§4.3	 
	Attachment D	 	Equipment Maintenance Addendum
	 	 	§5.5.1	 
	Attachment E	 	Standard Installation Diagram
	 	 	§6.6	 
	Attachment F	 	Additional Network Performance Criteria
	 	 	§5.2.6	 








 




			
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Attachment A




NextG Networks

Service Level Agreement




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Securities and Exchange Commission. Omitted portions have been filed separately with the
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Attachment B  —  Sample Network Order



I. Preamble. This Network Order (this “Order”), dated effective as of
                    , 200      (the “Order Effective Date”), is an agreement entered into by and
between NextG Networks of                     , Inc. [insert name of NextG regional affiliate] a
                     corporation (“NextG”), and Cricket Communications, Inc., a                     
corporation (“Operator”), for the construction of certain telecommunications network
infrastructure and the purchase of certain network equipment and services pursuant to the Master RF
Transport Agreement by and between the Parties dated                     , 2006 (the “Agreement”).



II. General Framework. All of the terms and conditions of the Agreement, including its
Attachments are hereby incorporated by reference into this Order. Capitalized terms used but not
defined herein shall have the meanings designated in the Agreement; capitalized terms used and
defined herein shall have the meanings designated herein. To the extent that there is a conflict
between the terms and conditions of the Agreement and this Order, or this Order contains terms and
conditions not set forth in the Agreement, than this Order shall control, but only to the extent of
the actual conflict or supplemental terms.



III. Services Order. For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Operator hereby orders and NextG hereby agrees to provide, in
accordance with the terms and conditions of the Agreement, the services enumerated in
Attachment 1 hereto, for the prices set forth in Attachment 1. The location of the
Nodes is described on Attachment 2 hereto. The equipment being purchased by Operator, the
purchase price for such equipment, and the equipment to be maintained by NextG pursuant to
Attachment ___to the Agreement is described in Attachment 3 hereto. The parties’
respective performance obligations are set forth in the Responsibilities Matrix attached hereto as
Attachment 4.



IV. Billing Information.




	 	 	 	 	 	 	 	 	 
	Payment Address:

	 	NextG Networks                     , Inc.
	 	 	 	Invoice Address:
	 	Cricket Communications, Inc.
	 

	 	2216 O’Toole Avenue
	 	 	 	 	 	[address here]
	 

	 	San Jose, CA 95131	 	 	 	 	 	 
	Contact:

	 	Accounts Receivable
	 	 	 	Contact:	 	 
	Phone:

	 	[number omitted from external version]
	 	 	 	Phone:	 	 
	Fax:

	 	[number omitted from external version]
	 	 	 	Fax:	 	 





V. Applicable Attachments. The following Attachments are an integral part of this Order
and are hereby incorporated by this reference:




þ Attachment 1 – Network Service Quotation

þ Attachment 2 – Preliminary Node Locations

þ Attachment 3 – Equipment List

þ Attachment 4 – Responsibilities Matrix



VI. Authorized Signatures. Intending to be legally bound, the Parties’ duly authorized
representatives have executed this Order effective as of the Order Effective Date.




	 	 	 	 	 	 	 	 	 	 	 
	NextG Networks                     , Inc.	 	 	 	Cricket Communications, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 









 




			
	
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    confidential treatment filed with the Securities and Exchange
    Commission. Omitted portions have been filed separately with the
    Commission.




 









 





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Attachment
C  —  [***]






 




			
	
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 Attachment D




NODE EQUIPMENT MAINTENANCE ADDENDUM




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    Commission. Omitted portions have been filed separately with the
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     8. Contact Information


The following contact information is in sequential order of escalation.




NEXTG SINGLE POINT OF CONTACT

Call Center (24 Hour)

Telephone: [omitted from external version]




OPERATOR SINGLE POINT OF CONTACT




Call Center (24 HOUR)




General Line: +1-XXX-XXX-XXXX




Disaster Recovery : +1-XXX-XXX-XXXX




ESCALATION PATH




	 	 	 
	NEXTG NETWORKS	 	OPERATOR
	First Level

	 	First Level
	 
	 	 
	NOC Technician
	 	 
	 
	 	 
	[omitted from external version]
	 	 
	 
	 	 
	Second Level

	 	Second Level
	 
	 	 
	[omitted from external version]
	 	 
	 
	 	 
	NOC Supervisor
	 	 
	 
	 	 
	Office: [omitted from external version]
	 	 
	 
	 	 
	Mobile: [omitted from external version]
	 	 
	 
	 	 
	Fax: [omitted from external version]
	 	 
	 
	 	 
	Third Level

	 	Third Level
	 
	 	 
	[omitted from external version]
	 	 
	 
	 	 
	Director, Network Operations
	 	 
	 
	 	 
	Office: [omitted from external version]
	 	 
	 
	 	 
	Mobile: [omitted from external version]
	 	 
	 
	 	 
	Fax: [omitted from external version]
	 	 








 




			
	
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    confidential treatment filed with the Securities and Exchange
    Commission. Omitted portions have been filed separately with the
    Commission.




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9. Time
and Materials Charges



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Attachment E



Standard Installation Diagram



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Attachment F



[***]






 




			
	
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    confidential treatment filed with the Securities and Exchange
    Commission. Omitted portions have been filed separately with the
    Commission.



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