exv10w12






Exhibit 10.12




CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




MASTER RF TRANSPORT AND LEASE AGREEMENT



This Master RF Transport and Lease Agreement (this “Agreement “) is dated as of May 3, 2007
(the “Effective Date”), and is entered into by and between NextG Networks, Inc., a Delaware
corporation (“NextG”), and MetroPCS Wireless, Inc., a Delaware corporation, for itself and
on behalf of its Affiliates that may elect to participate in and become bound by this Agreement
(collectively with such Affiliates, “Operator”). In this Agreement, NextG and Operator are
collectively referred to as the “Parties” and are each individually referred to as a
“Party.” Capitalized terms used in this Agreement are defined in Section 1 or elsewhere in
this Agreement.




Background



From time to time on and/or after the Effective Date, Operator may request, and NextG may agree,
that NextG will lease to the Operator [***] certain fiber strands on one or more Networks and
provide Operator with node construction, maintenance, monitoring, and RF transport services, in
each case with respect to one or more Networks, whether already existing after the Effective Date,
or to be constructed by NextG on or after the Effective Date, in each case 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 agree as follows:



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




     1.1 “Affiliate”means, with respect to a Party, any entity that the Party or its
parents or subsidiaries directly or indirectly holds the beneficial ownership (either directly or
indirectly) of at least 30% of the equity securities or interests in such entity, (a) which is
controlled directly or indirectly (through one or more subsidiaries) by the Party or its parent,
(b) as to which a Party directly or indirectly holds the beneficial ownership of at least 50% of
the voting securities or interests of such entity, (c) as to which either Party directly or
indirectly holds the power to direct or control the direction of the management or affairs of such
entity, or (d) which is under common control, either directly or indirectly (through one or more
subsidiaries) with the Party.



     1.2 “Base Station Hotel” means the owned or leased shelter housing Operator’s base
station equipment, as designated by Operator, through which NextG will connect each Network to, and
integrate such Network with, Operator’s network.



     1.3 “Change in Control” means, as of any particular time, a direct or indirect change
in the ownership of more than 50% of NextG’s voting or equity interests, as compared to such
ownership immediately before such time, in a single transaction or in a series of related
transactions or the transfer or sale of substantially all of NextG’s assets; provided that, in each
case, “Change in Control” expressly does not include (a) any such transaction or series of related
transactions that close on or before [***]; (b) any such transaction or series of related
transactions with one or more NextG Affiliates; (c) NextG’s initial public offering or any
secondary NextG public offerings, and (d) any transaction or series of related transaction the
primary purpose of which is to raise operating capital.





 




			
	***	 	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 “Fiber System” means the fiber portion of each Network that is owned or controlled
by NextG and within which the Leased Fibers are located.



     1.5 “Hub Node Equipment” means the equipment that receives optical signals from the
NextG Equipment and transmits and receives RF signals to the Base Station Hotel.



     1.6 “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).



     1.7 “Leased Fibers” means the specific fiber optic filament strands leased to Operator
[***] as provided in a Network Order.



     1.8 “Network” means all elements of a fiber-fed microcellular RF network to be
operated by NextG pursuant to any Network Order.



     1.9 “Network Interface” means the demarcation point that connects Operator Equipment
to the Leased Fiber.



     1.10 “Network Vendor” means the network of the vendor from whom NextG may have
purchased or leased its dark fiber.



     1.11 “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.



     1.12 “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.



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



     1.14 “NextG Fiber Hub” means the fiber optic hub at each Node and the Base Station
Hotel that NextG will use to connect to the Operator Equipment.



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





 




			
	***	 	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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     1.16 “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;
provided that this definition does not include any part of the NextG Network.



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



     1.18 “Operator Assessments” means any and all taxes, costs, charges, fees and expenses
of every kind and description relating to the: (a) Nodes, (b) Base Station Hotels (including 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;
provided that Operator Assessments expressly do not include any franchise taxes or other fees
associates with NextG’s business operations.



     1.19 “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.



     1.20 “Operator Equipment” means Operator‘s communication systems, including [***]
provided that the NextG Network is expressly excluded from this definition.



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



     1.22 “Outage” means either (a) the complete interruption of communications, or (b) the
material degradation of Operator’s communication between Operator Equipment, the Network Interface
and any Node; provided that, in any such case, such interruption or degradation is not caused by
(i) Operator‘s failure to obtain, maintain, extend, or renew Operator Authorizations or Operator’s
failure to pay any Operator Assessments; (ii) one or more acts or omissions of Operator or of any
Operator Representative that have directly contributed to the complete interruption of
communications or the material degradation of Operator’s communications; (iii) the use, failure,
malfunction, unavailability, or inoperability of any Operator Equipment (unless both (A) Operator
ordered and is current in its payments for NextG’s equipment maintenance services as described in
Section 5.5 and (B) the use, failure, malfunction, or inoperability of the Operator Equipment was
caused by NextG’s failure to perform the equipment maintenance services); (iv) Operator‘s failure
to perform any of its obligations under this Agreement; (v) any Force Majeure Event; or
(vi) planned interruptions or degradations for maintenance or repair that are reasonably consistent
with industry standards.



     1.23 “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.





 




			
	***	 	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.




     1.24 “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.



     1.25 “Services” means those services to be provided by NextG as specified in each
Network Order, which may include RF Transport Services (as defined in Section 5.3.1), Leased Fiber
Monitoring and Maintenance Services (as defined in Section 5.3.2), and Node Monitoring Services (as
defined in Section 5.3.3).



     1.26 “User” means, as of any given time, any wireless communications provider or other
Person (other than Operator) that may be using a Fiber System.



2 Scope of Agreement and Use of Fiber System.




     2.1 Scope. The terms and conditions of this Agreement shall apply to all transactions on or
after the Effective Date, but not any transactions before the Effective Date, pursuant to which
Operator purchases Services or leases Leased Fiber from NextG or any of NextG’s Affiliates pursuant
to a Network Order first approved on or after the Effective Date. As soon as reasonably
practicable after the Effective Date, Operator will use commercially reasonable efforts to order at
least [***] total Nodes (including Nodes ordered by Operator Affiliates) in various United States
markets, which may, at Operator’s election, include
[***]. [***].



     2.2 Permitted Uses. [***].



     2.3 NextG’s Use of NextG Networks. [***].



     2.4 Leased Fibers. For each Network Order that the Operator orders under this Agreement,
Operator will lease from NextG specific Leased Fibers within the applicable Fiber System, and NextG
will lease to Operator those specific Leased Fibers within the applicable Fiber Systems. NextG
will lease the Leased Fibers to Operator [***]. Each Specific Network Order will specify the
location and identity of the Leased Fibers within each Fiber System, and each Network Order will be
for [***] Leased Fiber [***] per Node, unless otherwise indicated in a Network Order. So long as
Operator pays the Leased Fiber Fees and timely performs each of Operator’s obligations under this
Agreement and the applicable Network Order, NextG covenants that Operator shall, subject to the
terms and conditions of this Agreement and the applicable Network Order, quietly and peaceably
possess and enjoy the Leased Fibers throughout the applicable Lease Term without any interruption
or disturbance from NextG or any Person lawfully claiming by, through, or under NextG.



3 Services Fees and Payment.




     3.1 Network Orders. From time to time on and/or after the Effective Date, Operator may order,
and NextG and/or one of NextG’s regionally-based wholly-owned subsidiaries may accept, an order
from Operator for Leased Fibers and for one or more of the Services under this Agreement. Neither
Party shall have any obligation to provide or pay for any Leased Fibers and/or any 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 “Specific Network Order”) or executed and
delivered a master network service order (each, a “Master Network Order,” and collectively
with the Specific Network Orders, the “Network Orders”) to be implemented through





 




			
	***	 	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.



one or more Specific Network Orders. A sample Specific Network Order and a sample Master
Network Order are attached as Exhibit B and Exhibit C, respectively.




     3.2 Operator Purchase Orders. Purchase orders are required for all goods and services
purchased hereunder, except that Operator may elect to comply with Operator’s Service Fee payment
obligations and Leased Fiber Fee payment obligations without utilizing purchase orders. 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 [***] calendar
days of the applicable Network Order effective date. Upon NextG’s receipt of Operator’s purchase
order under a Network Order, such NextG termination right with respect to such Network Order will
terminate, except as specifically stated to the contrary.



     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 [***] 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 to 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 user, of
communications services including 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.




4 Term.




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



     4.2 Network and Lease Term. The term for which NextG shall provide those Services identified
on each Network Order for each Network (the “Network Term”) shall be for an initial period
of [***] from and after the Commissioning Date (as defined in Section 5.3) of the last Leased Fiber
for that Network, unless terminated sooner in accordance with this Agreement. 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 [***] before the commencement of the
applicable extension term. The term for which Operator will lease and pay





 




			
	***	 	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.



for the Leased Fibers within each Network (the “Lease Term”) shall be [***] commencing
on the Fiber Acceptance date (as determined in Section 5.1.3), unless terminated sooner in
accordance with Section 4.3 of this Agreement. The Lease Term for each Leased Fiber shall
automatically be extended for [***] each, unless either NextG or Operator give written notice of
termination to the other not less than [***] before the commencement of the applicable extension
term. [***].




     4.3
Change in Control. [***]


5 Network Services. NextG shall provide to Operator for the Network Term the Services
specified in 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.




     5.1 Network Design; Fiber Build.



          5.1.1 Network Design. Within [***] after NextG receives Operator’s purchase order under a
Network Order, NextG will make personnel available to begin working with Operator to finalize the
preliminary Network design attached to the Network Order, drive test the proposed Node locations,
and share the drive test results and final proposed Network design with Operator. Upon Operator’s
approval of the final Network design, Operator shall sign and return to NextG the NextG provided RF
Approval Form.




          5.1.2 Fiber System Build. If the Fiber System is not already built, upon receiving the NextG
RF Approval Form signed by Operator, NextG shall, for the consideration specified in the applicable
Network Order, construct the Fiber System required by such Network Order, which will include the
Leased Fiber, to connect the Nodes identified in the applicable Network Order as described in the
applicable Responsibilities Matrix. Operator shall, at its sole cost and expense, install and
provide to NextG the appropriate Operator’s Equipment at the address and the location set forth in
the applicable Network Services Quotation exhibit. After completing the Fiber System construction,
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 segment end point shall in all cases be
less than [***] calculated optical loss. OTDR testing only will be performed for bare fiber
(un-terminated fiber).




          5.1.3 Fiber Acceptance. Upon the successful completion of the Fiber Acceptance Test, NextG
shall provide written notice to Operator (the “Fiber Completion Notice “).






 




			
	***	 	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.



Upon receiving the Fiber Completion Notice, the Leased Fibers will be deemed accepted, unless
Operator rejects the Fiber Completion Notice by written notice to NextG within [***] after
receiving the Fiber Completion Notice that the Leased Fibers materially failed 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 Leased Fibers are accepted or deemed accepted. The acceptance date for the Leased Fibers
(“Fiber Acceptance”) shall be the earliest of: (a) the date that Operator delivers a notice
accepting the Leased Fibers; (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 Leased Fibers for any purpose other than testing.




     5.2 Node Installation.



          5.2.1 [***].




          5.2.2 [***].




          5.2.3 [***].




          5.2.4 [***].




          5.2.5 Node Acceptance.




               (a) 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 acceptance date
for the Nodes (“Node Acceptance”) shall be the earliest 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) [***].



               (b) [***].



          5.2.6 Node Delivery. By bill of sale or as otherwise reasonably requested by Operator,
promptly after receipt of the final payment specified in Section 6.1.4, 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 Section 6.1.4. NextG may begin providing RF Transport and Monitoring Services
for any Nodes connected to the Leased Fibers that have passed Node Acceptance (“Partial
Delivery”). [***].




     5.3 Fiber Lease and Network Services. From and after the later of the Fiber Acceptance date
and the Node Acceptance date for a Network (the “Commissioning Date”), Operator shall have
[***] the Leased Fibers for the Lease Term in accordance with the terms of this Agreement and the
underlying Network Order. Except for the leasehold interest in the Leased





 




			
	***	 	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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Fiber created pursuant to this Agreement, neither this Agreement, nor any Network Order, nor
any lease rights contained in this Agreement shall be deemed to establish or convey any right,
title, or interest in any personal or real property comprising the Fiber System, including the
Leased Fibers. Operator and NextG expressly acknowledge and agree that, with respect to the Leased
Fibers, this Agreement is a lease to use, subject to the terms and conditions of this Agreement,
[***] each Leased Fiber [***] is not a sale of the Leased Fibers to Operator. After the
Commissioning Date, NextG will deliver a close-out binder to Operator, and the close-out binder
will include the information contained in Exhibit E. During the Network Term, NextG shall provide
to Operator the following Services, unless terminated by Operator in accordance with Section 5.3.4:




          5.3.1 RF Transport and Delay. NextG will transport Operator’s RF traffic over the Leased
Fibers to and from the Nodes, specifically from the Hub Node Equipment to the Node Equipment (the
“RF Transport Service”). NextG will provide the delay from the Base Station Hotel
connection point to the Node for each Node.




          5.3.2 Leased Fiber Monitoring and Maintenance. NextG will monitor and maintain the Leased
Fibers which monitoring and maintenance will be in accordance with Exhibit F (the
“Leased Fiber Monitoring and Maintenance Service”).




          5.3.3 Node Monitoring. NextG will monitor the Node Equipment and Hub Node Equipment and
provide email notification of alarms and failures according to NextG’s standard operating
procedures (together with the services described in Section 5.3.2, the “Monitoring
Services”). NextG will integrate or interface NextG’s NOC with Operator’s NOC so that Operator
can simultaneously monitor the Nodes.




          5.3.4 [***].




     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, California or another designated NextG facility. Thus, risk of loss and title
to the equipment passes to Operator upon delivery of the equipment by NextG to the designated
carrier at NextG’s facility or another designated NextG 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
5.4.1 are due [***] after Operator receives an invoice.




          5.4.2 Target Delivery Date. The total duration of the Network construction schedule and the
performance of the various professional and construction services described in the Network Order
shall not exceed [***] from the date of receipt of all required NextG and Operator Authorizations
(the “Target Delivery Date”). As soon as possible following the Effective Date, the
Parties shall compile a mutually agreeable construction schedule. The Network Order may specify
penalties for NextG’s failure to meet the Target Delivery Date and bonuses if NextG completes
Network construction before the Target Delivery Date.




     5.5 Maintenance of Operator Equipment. Notwithstanding anything to the contrary herein,
unless Operator has purchased NextG’s equipment maintenance Services (as described in Exhibit
G) under a Network Order, no equipment RMA/warranty support, maintenance, or repair of any
Operator Equipment is included under that Network Order whatsoever, whether as





 




			
	***	 	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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Monitoring Services or otherwise, at any phase of performance of services under that Network
Order.




     5.6 [***]. Unless expressly provided to the contrary in a Network Order, the various
professional and construction services described in this Agreement and each Network Order do not
include, and the fees enumerated in the applicable Network Order do not cover, [***]. If the
Network design approved by Operator pursuant to Section 5.1.1 requires [***] and Operator so
desires, NextG will use commercially reasonable efforts as directed by Operator to obtain the
necessary permissions on a time and materials basis 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.
Alternatively, Operator may cancel that portion of the Network that is to be [***].



     5.7 Base Station Hotel



          5.7.1 If expressly provided in a Network Order, NextG shall: (a) negotiate Operator’s use of
Base Station Hotel space on Operator’s behalf (the “BTS Space”) on a time and materials
basis at NextG’s then prevailing hourly rates; or (b) obtain the right for Operator to use and
access the BTS Space for the Term and pass through the monthly rental to Operator [***], subject to
Operator’s compliance with, and payment of any access charges required under, the terms of NextG’s
agreement with the operator of the BTS Space. Operator shall not be responsible for any BTS rent
to NextG or the operator of the BTS Space unless Operator has demonstrated its approval of the rent
in writing.




          5.7.2 If BTS Space acquisition services are not included in a Network Order, Operator
shall be solely responsible for performing the necessary site acquisition and for paying any and
all rent, fees, costs, charges, and expenses in connection therewith. In any such case, Operator
will notify NextG as soon as possible about Operator’s proposed site location, and NextG will
respond in writing [***] after receiving such notification with NextG’s approval or disapproval of
that proposed site location.




          5.7.3 Whether or not NextG performs BTS Space acquisition services for Operator, Operator
shall be solely responsible for: [***].



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 (the “Construction Fees”), according to the following milestone payment
schedule:



          6.1.1 [***]




          6.1.2 [***]




          6.1.3 [***]




          6.1.4 [***]




     6.2 Service Fee and Leased Fiber Fee. Beginning on the Network Order effective date, Operator
shall pay to NextG the Service Fee specified in the applicable Network Order (the “Service
Fee”). After the first Service Fee payment is made on the Network Order effective date,





 




			
	***	 	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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each subsequent Service Fee payment will be made on the first day of each month for that
month. For each Network, the Service Fee will terminate automatically when the Lease Term begins.
Beginning on and throughout the Lease Term for each Network, Operator shall pay to NextG the Leased
Fiber Fee specified in the applicable Network Order (the “Leased Fiber Fee”). After the
first Leased Fiber Fee payment is made at the beginning of the Lease Term, each subsequent Leased
Fiber Fee payment will be made on the first day of each month for that month. The Service Fee and
the Leased Fiber Fee for any partial month shall be prorated in accordance with the number of days
in any such partial month.




     6.3 Service Fee and Leased Fiber Fee Adjustments. Beginning on the first anniversary of the
date that the Service Fee first became due and payable under Section 6.2, and on each subsequent
anniversary date throughout the Lease Term and any Lease Term extensions, the applicable Service
Fee or Leased Fiber Fee (as applicable as of any particular time) will increase by [***] over the
Service Fee or Leased Fiber Fee (as applicable) that was in effect for the immediately preceding
year.



     6.4 Additional Node Capacity. Each Node will be capable of being configured to include up to
[***] of transport bandwidth, provided that Operator’s Equipment allows for such [***]. In the
event that a Node is initially configured with [***] of transport bandwidth, Operator may elect to
install [***] transport bandwidth. While Operator shall be under no obligation to contract with
NextG to install such [***] transport bandwidth, Operator may request that NextG do so. NextG
shall promptly evaluate Operator’s request and provide Operator a quote for performing the
necessary work. NextG shall perform no such work until Operator has agreed to the quoted terms.
Once agreed, NextG will install the [***] transport bandwidth as soon as reasonably practicable.
In addition to paying for [***] as agreed by the Parties, [***].



     6.5 Management Fee. 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 the [***] as a management fee.



     6.6 [***].



     6.7 [***].


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 of the
applicable Network Order:




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



     7.2 such Party (a) terminates or suspends its entire business, (b) becomes subject to any
bankruptcy or insolvency proceeding under federal or state statute, (c) becomes insolvent or
subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or
liquidated, voluntarily or otherwise.



     7.3 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 [***] 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





 




			
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than [***] to cure, then the time period will be extended for an additional [***] if the
breaching Party proceeds diligently to cure the breach.



8 Force Majeure




     8.1 Force Majeure Defined. Notwithstanding anything to the contrary herein on 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 any
action by or omission of a governmental agency or authority (including a moratorium on any
activities related to this Agreement or changes in government codes, ordinances, laws, rules,
regulations, or restrictions), material shortages, 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, either Party’s failure for any reason to pay
money when due pursuant to this Agreement or otherwise will not qualify as a Force Majeure Event.
Upon the occurrence of a Force Majeure Event, the Party whose performance is adversely affected
will provide written notice to the other Party [***] of such occurrence describing the affected
performance. NextG and Operator will promptly confer, in good faith, to agree upon equitable,
reasonable action to continue their performance under this Agreement. NextG and Operator will use
commercially reasonable efforts to minimize the delay caused by the Force Majeure Event and resume
the affected performance. All obligations of each Party will be equitably adjusted to account for
the Force Majeure Event.



     8.2 [***].



     8.3 [***].



     8.4 Force Majeure Termination Events. Either Party may terminate the affected portion of a
Network Order upon not less than [***] written notice to the other Party if (a) any Force Majeure
Event (as defined in Section 8.1) applicable to the other Party results in that other Party’s
inability to perform its obligations under the Network Order for a period of [***] or more; or (b)
any Force Majeure Event applicable to the terminating Party results in the terminating Party’s
inability to perform its obligations under the Network Order for a period of one year. 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 the Network Order
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.



     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 $500,000; (b) commercial general liability and property damage
insurance (including completed operations and contractual liability) in an amount equal to at least
$2,000,000 combined single limit; and (c) “all risk” property insurance insuring the NextG
Equipment and its related personal property for its full replacement cost. All such policies shall
(w) be written by one or more reputable insurers, reasonably acceptable to






 




			
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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 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 30 days before 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, and (b) sufficient liability coverage to
insure all potential liability under this Agreement. Operator shall supply to NextG evidence of
the insurance coverages required under this section within 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 is found to be not in accordance with the requirements
of this Agreement or the Network Order, NextG shall promptly correct the defective work after
receipt of written notice 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. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR
DAMAGES UNDER THIS AGREEMENT, EXCLUDING LIABILITIES UNDER [***], IS LIMITED TO THE TOTAL AMOUNT
PAYABLE BY OPERATOR TO NEXTG FOR SERVICES PROVIDED UNDER THE SPECIFIC NETWORK ORDER TO WHICH THE
DISPUTE RELATES. 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 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, NEXTG DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY AND
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.





 




			
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     10.4 Indemnities



          10.4.1 Indemnification by NextG. In addition to the other express indemnification provisions
contained in this Agreement and subject to Section 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, (c) negligence or intentional misconduct in connection with a Network or its (or their)
obligations under this Agreement or a Network Order, or (d) negligent actions or negligent
omissions damaging Operator Equipment or any part of Operator’s wireless telecommunications
network.




          10.4.2 Indemnification by Operator. In addition to the other express indemnification
provisions contained in this Agreement and subject to Section 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, (iii) negligence
or intentional misconduct in connection with a Network, or its (or their) obligations under this
Agreement or Network Order; or (iv) negligent actions or negligent omissions damaging any part of
the Fiber System, including the Leased Fibers [***].



     10.5 Responsibility for Damage. Subject to the limitations set forth elsewhere in this
Section 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 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 Intellectual Property and the rights embodied therein, non-public information relating
to the customers of either Party, and the terms, conditions, and existence of this Agreement and
each Network Order. Confidential Information includes all information about the Disclosing Party
or





 




			
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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, but
only if the Disclosing Party notifies the Receiving Party in writing of the existence of such
obligation or if the Receiving Party otherwise had reason to know about such obligations) 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, markets for 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 breach 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 Non-Disclosure and Non-Use 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 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.



     11.4 Exceptions. Information will not be subject to the restrictions in Section 11.3 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.





 




			
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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. The Nodes, the Leased Fibers, the Networks, and NextG’s
performance of all Services and 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, including the Federal
Communication Commission’s Rules and Regulations concerning the suppression of radio frequency and
electromagnetic radiation to specified levels. NextG will perform all obligations in a timely,
professional, and workmanlike manner.




          12.2.2 Ownership. This Agreement (collectively 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; provided that, in the case of Operator Equipment for which NextG paid on
Operator’s behalf, NextG will have a purchase money security interest in such Operator Equipment
until Operator pays NextG for such Operator Equipment as provided in this Agreement or in any
Network Order. Subject to the preceding sentence, NextG will not have any security interest
whatsoever in any Operator personal property, including Operator Equipment, and, to the extent that
any applicable statute, code, or law grants NextG such an interest, NextG does expressly and
irrevocably waive any such interests or rights.




          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, 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






 




			
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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
Section 12.2.4.




     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 those
regulations promulgated by the Federal Communications Commission.




          12.3.2 Ownership. Except for Operator’s leasehold interest in the Leased Fiber, this
Agreement (collectively with all Network Orders) is not intended to, and shall not be interpreted
to, grant Operator any property rights, interests, or licenses in any 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.




          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
any 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 any Network Vendor’s network,
then Operator will have the next 30 days after receipt of written notice of such lien 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 attorneys fees and costs
of suit, reasonably incurred by NextG in connection therewith. At any time, NextG will have the
right to post and maintain upon any part of each NextG Network or any part of each Network Vendor’s
network any notices that may be necessary to protect NextG and/or the 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 Section 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






 




			
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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 Section 12.3.6.




13 Notices.



     13.1 General. All notices and other communications required or permitted under this Agreement
and all Network Orders must be in writing and sent by facsimile; reliable overnight air courier;
registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger
addressed to 8144 Walnut Hill Lane, Suite 800, Dallas, TX 75231, Attn: General Counsel, fax number
[number omitted from external version] 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 Section 13.1.



     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 with
a written receipt of notice, or, if sent by mail, then at the earlier of its receipt or 72 hours
after such communication has been deposited in a regularly maintained receptacle for the deposit of
the United States mail, postage prepaid, registered or certified mail, addressed and mailed as set
forth above 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 Nodes,
Base Station Hotels, the Leased Fibers, and all Operator Equipment 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, the Leased Fibers, and the related Operator
Equipment upon not less than 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 property managers, owners, and landlords),
NextG and its authorized personnel cannot access Operator Equipment, any Nodes or Base Station
Hotels, 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 [***].





 




			
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     14.3 Operator Access.



          14.3.1 With respect to each Network, Operator may interconnect the Leased Fibers with
Operator’s network from the Base Station Hotel used for such Network to and among the Nodes
associated with that Network. While Operator shall be under no obligation to contract with NextG
to interconnect the Leased Fibers with the Operator’s Network, Operator may request that NextG do
so. NextG shall promptly evaluate Operator’s interconnection requests and provide Operator a quote
for performing the necessary work. NextG shall perform no such work until Operator has agreed to
the quoted terms. Once agreed, NextG will implement the interconnection as soon as reasonably
practicable. Notwithstanding anything to the contrary in this Section 14.3.1 or elsewhere in this
Agreement, but subject to Operator’s rights to use, access, maintain, and control the Leased Fiber
during the Lease Term in accordance with the terms of this Agreement, Operator expressly
acknowledges and agrees that only NextG and NextG’s authorized personnel may access, maintain, and
control each Fiber System (other than the Leased Fiber, as provided in this Agreement) and all
associated hardware and equipment connected to each Fiber System.




          14.3.2 [***]. If all or part of the Fiber System (including any Leased Fiber) requires
restoration, replacement, or repair because of the actions or omissions of Operator or Operator’s
employees, agents, or contractors, then NextG may perform such restoration, replacement, or repair,
at Operator’s sole costs and expense, in accordance with NextG’s then current time-and-materials
rates plus applicable taxes.




          14.3.3 In addition to any other available remedies, Operator shall indemnify, defend, and hold
harmless NextG from and against any Claims associated in any manner with Operator’s direct,
indirect, authorized, and/or unauthorized restoration, replacement, repair, or other work on the
Fiber System, including Leased Fibers, and Operator will fully and promptly reimburse NextG for any
and all damage to the Fiber System, including the Leased Fibers, resulting from, caused by, or
arising out of any such work.




     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. Unless prior approval has been obtained from
Operator in writing, PSWP work will only be scheduled during Operator’s regularly scheduled
maintenance periods. 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. Emergency restoration procedures are described in
Exhibit H. The escalation list to report and seek immediate redress of Network problems is
contained on Exhibit I. 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 four hours 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
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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 conditions,
and for such additional consideration, as the Parties might hereafter mutually agree in writing.



16 Miscellaneous. The miscellaneous provisions that follow in this Section 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
Section 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 the NextG Networks.
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 the Network
Orders is not that of partners or agents for one another, and nothing contained in this Agreement
or any Network Order will be deemed to constitute or imply a partnership, joint





 




			
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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 the Network Order. This
Section 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, as the case may be, will continue in
full force and effect without such provision and without affecting the remaining provisions of this
Agreement or the applicable Network Order; 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 and the applicable Network Order.



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



     16.10 Waivers. Except as expressly provided in this Agreement, 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 any Network Order 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, nor will
any waiver of any single right, breach or default 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 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
and any Network Order 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: (a) any document which, by its terms, clearly amends a Specific Network Order or any
exhibits or any attachments attached to a Specific Network Order; (b) the Specific Network Order;
(c) any document which, by its terms, clearly amends a Master Network Order or any exhibits or
attachments attached to a Master Network Order; (d) the Master Network Order; (e) any document
which, by its terms, clearly amends this Agreement or any exhibits attached to this Agreement;
(f) the exhibits attached to this Agreement; and (v) this Agreement.





 




			
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     16.13 Survival. All provisions of this Agreement or any Network Order that by their terms
should logically survive the expiration or termination of this Agreement shall survive the
expiration or termination of this Agreement.



     16.14 Assignment and Subleasing.



          16.14.1 NextG may not assign or otherwise transfer all or any part of this Agreement and each
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
each 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 Section 16.14 shall not relieve the assignor/transferor of liability for
the performance of its obligations under this Agreement or any Network Order.




          16.14.2 [***].




     16.15 Subcontracting. NextG may subcontract or delegate any of its obligations under this
Agreement and any Network Order with Operator’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed. No delegation or subcontracting shall relieve NextG of its
liability for the performance of its obligations under this Agreement. NextG shall give Operator a
list of proposed subcontractors and Operator shall have five days to approve or disapprove. If
Operator fails to respond within the five-day window, Operator shall be deemed to have approved of
the proposed subcontractors.



     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 or 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 the Network Order.



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



     16.18 Contract Construction. The Parties have participated jointly in negotiating and
drafting this Agreement and each Network Order. If any ambiguity, intent question, or





 




			
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interpretation question arises with respect to this Agreement or any Network Order, then this
Agreement or that Network Order will be construed as if drafted jointly by the Parties, and no
presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement or of any other Transaction Agreement. As
used in this Agreement and in each Network Order, the word “including” and its variations are used
illustratively and not in limitation, unless the context specifically requires otherwise. All
references in this Agreement to sections, paragraphs, exhibits, attachments and schedules will,
unless otherwise specifically provided, refer to sections and paragraphs of this Agreement and
exhibits, attachments, and schedules attached to this Agreement. The exhibits, attachments, and
schedules identified in this Agreement are incorporated into this Agreement by reference and are
made a part of this Agreement. All references in each Network Order to sections, paragraphs,
exhibits, attachments and schedules will, unless otherwise specifically provided, refer to sections
and paragraphs of that Network Order and exhibits, attachments, and schedules attached to that
Network Order. The exhibits, attachments, and schedules identified in each Network Order are
incorporated into that Network Order by reference and are made a part of that Network Order.




     16.19 Disputes. The Parties recognize that disputes as to certain matters may from time to
time arise in relation to this Agreement and the Network Orders. It is the objective of the
Parties to establish procedures to facilitate dispute resolution hereunder expediently,
cooperatively, and non-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 30 days of referral of the
dispute, either Party may, by written notice to the other, resort to arbitration as set forth in
Section 16.20. Each Party shall appoint a representative in charge of acting as liaison to the
other Party with regard to this Agreement (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 the Rules. Each arbitrator must
be selected in accordance with the Rules and an attorney with not less than 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 Section 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 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





 




			
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Network Order, upon providing such 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 design
(a) as reasonably necessary to ensure adequate performance of the Network, or (b) based on changes
in Base Station Hotel 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 nor material change in network functionality.



     16.23 Liens. NextG 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 NextG to attach to, or be enforced against Operator Equipment. If
NextG’s actions cause such lien to be filed against Operator Equipment, then NextG will have the
next 30 days after receipt of written notice of such lien 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 NextG are not released within such 30-day time period, then NextG
will reimburse Operator for any costs, including attorneys fees and costs of suit, reasonably
incurred by Operator in connection therewith.



     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 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





 




			
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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 to California Networks Only.
The following statements are required by the rules and regulations 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 this Agreement and the applicable Network Order with the Commission. Per
applicable Commission rules and procedures, the Network Order will be 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 exhibits to this Agreement and
with each Network Order, 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. Notwithstanding anything to the
contrary in this Section 17 or elsewhere in this Agreement, this Agreement does not apply to,
supersede, modify, or otherwise affect any transactions entered into between the Parties before the
Effective Date.




Authorized Signatures



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




	 	 	 	 	 	 	 	 	 	 	 
	NEXTG NETWORKS, INC.	 	 	 	METROPCS WIRELESS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John B. Georges
	 	 	 	By:
	 	/s/ Roger Linquist	 	 
	 

	 	 

John B. Georges
	 	 	 	 	 	 

Signature
	 	 
	 

	 	Chief Executive Officer	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Its:
	 	President, CEO	 	 
	 

	 	 	 	 	 	Print
	 	 

Title
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	May 3, 2007
	 	 	 	Date:
	 	May 3, 2007	 	 








 




			
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Schedule of Exhibits:




	 	 	 	 	 	 	 
	Exhibit Reference	 	Exhibit Description	 	Where Described in the Agreement
	Exhibit A	 	Service Level Agreement
	 	 	§1.17	 
	Exhibit B	 	Sample Specific Network Order
	 	 	§3.1	 
	Exhibit C	 	Sample Master Network Order
	 	 	§3.1	 
	Exhibit D	 	Node Acceptance Test Results Form
	 	 	§5.2.4	 
	Exhibit E	 	Close-Out Binder Index
	 	 	§5.3	 
	Exhibit F	 	Fiber Maintenance Requirements and Procedures
	 	 	§5.3.2	 
	Exhibit G	 	Equipment Maintenance Services
	 	 	§5.5	 
	Exhibit H	 	Emergency Restoration Procedures
	 	 	§14.5	 
	Exhibit I	 	Contact Escalation List
	 	 	§14.5	 








 




			
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Exhibit A




NextG Networks

Fiber Service Level Agreement




[***]






 




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





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Exhibit B  —  Sample Specific Network Order



I. Preamble. This Specific Network Order (this “Order”), dated effective as of
                    , 2007 (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                      (“Operator”), for the construction of certain
telecommunications network infrastructure, the lease of certain fibers, and the purchase of certain
network equipment and services pursuant to the Master RF Transport and Lease Agreement by and
between the Parties or their Affiliates, dated May 3, 2007 (the “Agreement”) and, if this
Order is governed by a Master Network Order, then also pursuant to the Master Network Order by and
between the Parties or their Affiliates, dated May 3, 2007 (the “Master Order”)].



II. General Framework. All of the terms and conditions of the Agreement and the Master
Order (if applicable), including any exhibits, in each case as amended before the Order Effective
Date (if applicable), are hereby incorporated by reference into this Order. Capitalized terms used
but not defined herein shall have the meanings designated in the Agreement or in the Master Order
(if applicable); 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,
the Master Order, and/or this Order, or this Order contains terms and conditions not contained in
the Agreement or the Master Order, then this Order shall control over the Master Order and the
Agreement, and the Master Order shall control over the Agreement, but, in each case, 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 and the Master Order (if applicable), the
Services and Leased Fibers enumerated in Attachment 1, for the prices set forth in
Attachment 1. The location of the Nodes and the Leased Fibers are described on
Attachment 2. The equipment being purchased by Operator (the “Equipment”) and
purchase price for the Equipment is described in Attachment 3. The Parties’ respective
performance obligations are set forth in the Responsibilities Matrix attached as Attachment
4. Any supplemental terms applicable to this Order are set forth in Attachment 5. If
ordered by the Operator, NextG shall maintain the Equipment in accordance with Exhibit G to
the Agreement.



IV. Billing Information.




	 	 	 	 	 	 	 	 	 
	Payment Address:

	 	NextG Networks, Inc.
	 	 	 	Invoice Address:
	 	MetroPCS Wireless, Inc.
	 

	 	2216 O’Toole Avenue
	 	 	 	 	 	8144 Walnut Hill Lane, Suite 800
	 

	 	San Jose, CA 95131	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Dallas, TX 75231
	Contact:

	 	Accounts Receivable
	 	 	 	Contact:
	 	Accounts Payable
	Phone:

	 	[number omitted from external version]
	 	 	 	Phone:	 
	Fax:

	 	[number omitted from external version]
	 	 	 	Fax:	 





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




	 	 	 
	þ Attachment 1 – Network Service Quotation

	 	þ Attachment 5 – Supplemental Terms (if any)
	þ Attachment 2 – Preliminary Node Design
	 	 
	þ Attachment 3 – Equipment List
	 	 
	þ Attachment 4 – Responsibilities Matrix
	 	 
	 
	 	 





	 	 	 	 	 	 	 	 	 	 	 
	NextG Networks, Inc.	 	 	 	MetroPCS Wireless, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 








 




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





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Exhibit C  —  Sample Master Network Order




[Master Network Order to be attached]






 




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





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NextG Networks/MetroPCS




MASTER NETWORK ORDER AGREEMENT



I. Preamble. NextG Networks, Inc., a Delaware corporation (collectively with its
Affiliates, “NextG”), and MetroPCS Wireless, Inc., a Delaware corporation (collectively
with Royal Street Communications, LLC and its other Affiliates, the “Operator”), are
entering into this Master Network Order Agreement (this “Master Network Order”) as of May
3, 2007 (the “Order Effective Date”). Under this Master Network Order and the Parties’ May
3, 2007 Master RF Transport and Lease Agreement (the “Master Transport Agreement”), the
Operator will order from NextG, and NextG will provide to the Operator, certain telecommunications
network infrastructure construction services, network planning and permitting, network equipment,
network transport services, network monitoring services, and certain other goods and services.
This Master Network Order will cover all Nodes that the Operator actually orders between the Order
Effective Date and May 1, 2008 (all such Nodes actually ordered during such time, the “[***]
Nodes”). Under this Master Network Order, the Parties anticipate that the Operator will order
at least [***] Nodes.



II. [***].



III. Order Process [***].




     A. Ordered Nodes. From time to time between the Order Effective Date and May 1, 2008,
and pursuant to one or more Specific Network Orders, the Operator will order specific [***] Nodes
and corresponding Leased Fiber, Network and Node construction services, RF Transport Services, and
Monitoring Services in one or more United States geographic areas, which may include [***]. The
specific locations for all [***] Nodes will be specified in one or more future Specific Network
Orders that would be accepted by the Operator between the Order Effective Date and May 1, 2008.



     B. [***].



     C. [***].



     D. [***].



     E. Standard Node Installation Only. All prices assume [***] of Leased Fiber per [***]
Node. All charges for Non-Standard Installation Items (the “Additional Charges”) are due
and payable [***] after incurred and invoiced by NextG.



     F. Payment
Terms. For each [***] Node, (1) Construction Fee charges will become
due and payable [***]; (2) the first recurring monthly Service Fee payment will become due and
payable on [***] and all subsequent recurring monthly Service Fee payments will be due and payable
[***] (unless otherwise agreed in the applicable Specific Network Order); (3) the first recurring
monthly Leased Fiber Fee payment will become due and payable on [***] and all subsequent recurring
monthly Leased Fiber Fee payments will be due and payable [***]; (4) the recurring monthly Service
Fee and the recurring monthly Leased Fiber Fee will be subject to [***] increases measured as of
[***]; (5) the recurring monthly Leased Fiber Fee will increase with respect to each [***] Node
that requires [***]; (6) [***]





 




			
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[***]
(7)
Additional Charges are due and payable [***]; and (8) Network Orders are subject to all of the
terms and conditions of the Master Transport Agreement (as specifically modified by this Master
Network Order). Any amounts that are paid for a partial calendar month will be prorated based on
an assumed 30-day calendar month.




     G. Construction Completion [***]. Subject to other schedules approved by any
particular market (as reflected in the applicable Specific Network Order), NextG anticipates that,
for each Network Order, the corresponding Network construction schedule and the professional and
construction services with respect to [***] will be completed [***]; provided that for any calendar
quarter in which [***], NextG anticipates that the corresponding Network construction schedule and
the professional and construction services with respect to [***] will be completed within [***].


IV. Specific Network Order Process. To order particular [***] Nodes under this Master
Network Order, the Operator will communicate with NextG (by telephone, mail, overnight mail,
electronic mail, facsimile, or other electronic communication system) identifying the Networks
where the Operator proposes to purchase services. In response to that communication, NextG will
promptly submit to the Operator an electronically-mailed Network Order, including the following
attachments for the ordered Networks: an Attachment 1 summarizing the Construction Fee,
the recurring monthly Service Fee, and the recurring monthly Leased Fiber Fee pricing for such
[***] Nodes and such Network; an Attachment 2 describing the preliminary location of the
[***] Nodes; an Attachment 3 describing the necessary equipment and the purchase price for
such equipment; an Attachment 4 containing a functional responsibilities matrix describing
the Parties respective performance obligations; and an Attachment 5 containing any
applicable supplemental terms. The Operator will accept the Network Order by providing NextG with
any written communication (including electronically-mailed communications) approving the Network
Order. Subject to Section III.F, upon receiving such written Network Order approval, NextG will
begin performing services and will charge the applicable Construction Fees, the recurring monthly
Service Fees, and the recurring monthly Leased Fiber Fees. All otherwise undefined but capitalized
terms will have the meanings specified for such terms in the Master Transport Agreement.



V. Billing Information.




	 	 	 	 	 	 	 	 	 
	Payment Address:

	 	NextG Networks, Inc.
	 	 	 	Invoice Address:
	 	MetroPCS Wireless, Inc.
	 

	 	2216 O’Toole Avenue
	 	 	 	 	 	8144 Walnut Hill Lane
	 

	 	San Jose, CA 95131
	 	 	 	 	 	Dallas, TX 75231
	Contact:

	 	Accounts Receivable
	 	 	 	Contact:
	 	J. Braxton Carter
	Phone:

	 	[omitted from external version]
	 	 	 	Phone:
	 	[omitted from external version]
	Fax:

	 	[omitted from external version]
	 	 	 	Fax:
	 	[omitted from external version]





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




	 	 	 	 	 	 	 	 	 	 	 
	NEXTG NETWORKS, INC.	 	 	 	METROPCS WIRELESS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Georges
	 	 	 	By:
	 	/s/ Roger Linquist	 	 
	Name:

	 	 

John Georges
	 	 	 	Name:
	 	 

Roger Linquist
	 	 
	Title:

	 	President & Chief Executive Officer
	 	 	 	Title:
	 	 President & CEO	 	 








 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit D




Node Acceptance Test Results Form




[Attached]






 




			
	***	 	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.





3









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.









Node Completion Notice




[***]




[Date]




[Operator Contact Person]

[Operator Name]

[Operator Street Address]

[Operator City, Street, and Zip Code]




Dear [Operator Contact Person]:



This Node Completion Notice is issued pursuant to Section 5.2 of the Master RF Transport and Lease
Agreement by and between [Operator Name] and NextG Networks, Inc., dated [date], (the
“Agreement”), and pertains to the Network Order dated [date] for [Network Order location or
project]. Capitalized terms used but not defined in this Notice have the meanings designated for
those in the Agreement.



[***]



Please contact me at [number omitted from external version] if you have any questions or if I can
be of any further service.



Best regards,



cc. NextG Networks




Raymond K. Ostby

CFO




cc:






 




			
	***	 	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.





1









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit E




Close-Out Binder Index




[Attached]






 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit E




Close-Out Binder



[***]






 




			
	***	 	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.





1









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit F




Fiber Maintenance Requirements and Procedures




[Attached]






 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




EXHIBIT F




Fiber Maintenance Procedures



[***]






 




			
	***	 	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.





1









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit G




Equipment Maintenance Services




[Attached]






 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




EXHIBIT G




[***]




     8. Contact Information


The following contact information is in sequential order of escalation.




NEXTG SINGLE POINT OF CONTACT

Call Center (24 Hour)

Telephone: [number 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
	 	 
	 
	 	 
	[number omitted from external version]
	 	 
	 
	 	 
	Second Level

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

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





     9. Time
and Materials Changes




[***]






 




			
	***	 	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.





1









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit H




Emergency Restoration Procedures




[Attached]






 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.









Exhibit H




Emergency Restoration Procedures*



[***]



For each customer, NextG maintains a point of contact escalation chart like the following:




NEXTG NETWORKS SINGLE POINT OF CONTACT

Call Center (24 Hour)

Telephone: [number omitted from external version]

Fax: [number omitted from external version]

CUSTOMER SINGLE POINT OF CONTACT

Call Center (24 HOUR )

General Line: +1-XXX-XXX-XXXX

Disaster Recovery : +1-XXX-XXX-XXXX

ESCALATION PATH




	 	 	 
	NEXTG NETWORKS	 	CUSTOMER
	First Level

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

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

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









 




			
	*	 	[***]
	 
	***	 	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.





1









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




Exhibit I




Contact/Escalation List




[Attached]






 




			
	***	 	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.





2









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.









Exhibit I




CONTACT AND ESCALATION LIST



[***]




NEXTG NETWORKS SINGLE POINT OF CONTACT

Call Center (24 Hour)

Telephone: [number omitted from external version]

Fax: [number omitted from external version]

CUSTOMER SINGLE POINT OF CONTACT

Call Center (24 HOUR )

General Line: +1-XXX-XXX-XXXX

Disaster Recovery : +1-XXX-XXX-XXXX

ESCALATION PATH




	 	 	 
	NEXTG NETWORKS	 	CUSTOMER
	First Level

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

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

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





 




			
	***	 	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.





3