EXHIBIT 10.25
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Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
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TRITON / WFI MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (this "Agreement") is entered into effective
as of January 19, 1998 (the "Effective Date") by and between TRITON PCS
OPERATING COMPANY, L.L.C., a Delaware limited liability company (the "Company"),
and Wireless Facilities Inc., a New York corporation that is in the process of
reincorporating in Delaware ("Contractor") (collectively, the "Parties"). The
Company desires to engage Contractor to perform the "Services," as defined
below, and Contractor desires to provide the Services. Therefore, the parties
agree as follows:
1. Services. The Company hereby engages Contractor as an independent
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contractor to provide the services set forth in Exhibit A hereto (the
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"Services").
2. Independent Contractor Relationship. Contractor shall act as an
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independent contractor to the Company, and nothing in this Agreement shall be
deemed to create a relationship of employer-employee, principal-agent, partner,
or joint venture between Contractor and the Company. Neither party has any
authority to bind the other to any contract or agreement without the other's
written permission. The Company has no power to supervise, give directions or
otherwise regulate Contractor's operations, although the Company will be
supervising the Contractor's personnel that Contractor is supplying pursuant to
this Agreement. Notwithstanding the foregoing, the Company shall retain the
right to request in writing upon fifteen (15) days' notice thereof that any
employee of Contractor who does not have the requisite skills be removed from
the job. No reasonable request of the Company shall be refused concerning the
dismissal or reassignment of personnel in conformance with this section.
Contractor shall be solely responsible for payment of compensation to
Contractor's employees and for all of Contractor's federal, state and local
payroll taxes, withholding, social security, and unemployment insurance.
Neither party is an agent of the other party and neither has the authority to
represent the other party as to any matters.
3. Term. The term of this Agreement shall begin on the Effective Date,
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and shall expire on the second (2nd) anniversary of the Effective Date (the
"Initial Term"). The term shall automatically renew for eight (8) successive one
(1) year periods, unless either party provides the other with written notice of
its intent not to renew the term of this Agreement at least sixty (60) days
prior to the expiration of the Initial Term or any renewal term. During the
Initial Term and any renewal terms (collectively, the "Term"), in addition to
the services described in Exhibit A, Contractor shall be the Company's
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preferred radio frequency engineering vendor/provider and shall have a right of
first refusal on all radio frequency engineering projects awarded by the Company
or any affiliate or joint venture of the Company. In any event, the termination
or expiration of the Term shall not reduce or terminate the Company's payment
obligations for services provided to the date of termination or the Parties'
confidentiality obligations under Section 9 of this Agreement. Upon termination
of the Term, all physical property of the parties shall be returned to the
proper party, including any cellular telephones or related equipment.
4. Early Termination. The Term may be terminated early:
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4.1. Termination for Breach. By Company or Contractor, immediately
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upon written notice of termination, in the event of a material breach of this
Agreement by the other party, if such breach continues uncured for a period of
[***]business days after receipt of written notice of such breach.
4.2. Termination for Insolvency. By Company or Contractor,
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immediately upon written notice of termination by the other Party, in the event
the other Party shall: (i) become insolvent; (ii) make an assignment for the
benefit of creditors; (iii) file a voluntary bankruptcy petition; (iv) acquiesce
to any involuntary bankruptcy petition; (v) be adjudicated bankrupt; or (vi)
cease to do business (other than as a result of an acquisition or merger).
4.3. Return of Information. Upon termination of this Agreement, the
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parties hereto shall, within thirty (30) days return all of the other party's
information in written, graphic or tangible form relating to this Agreement.
Notwithstanding the foregoing, upon the Company's payment for all Services
provided through the date of termination, the Company shall be entitled to
retain on a non-exclusive basis, any and all work product prepared or assembled
by Contractor through the day of termination.
5. Payment. The Company shall pay Contractor for the Services performed
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pursuant to this Agreement as specified in Exhibit B. The prices ("Prices") set
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forth in Exhibit B shall be fixed for each Site during the Term of the Agreement
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unless a specific change is mutually agreed to by the Parties in writing.
Contractor shall submit invoices for each payment due on a Site as set forth in
Exhibit B. The Company agrees that the invoice amount is correct, conclusive
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and binding unless the Company notifies Contractor in writing no later than
fourteen (14) days following the invoice date that the Company disputes a
particular item in an invoice. The Company's objection to a particular item in
an invoice shall not reduce or delay the Company's obligations to pay the
remaining portion of a particular invoice. To mitigate for the expenses and
costs the parties reasonably anticipate will occur, any invoice that remains
unpaid more than thirty-five (35) days after the invoice date shall
automatically incur a late payment charge equal to [***] percent ([***]%) of the
amount charged on the unpaid invoice, and the overdue amount owing on the
invoice shall thereafter be assessed a finance charge equal to the lesser of:
(i) [***] percent ([***]) per month, or (ii) the highest interest rate permitted
by law. The Company shall pay all invoices within thirty (30) days from the date
of the invoice without right of offset. Contractor shall not file any mechanics
liens with respect to the Services prior to adjudication of any disputes between
the parties.
6. Insurance. Contractor shall maintain comprehensive general liability
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insurance coverage in an amount not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury or death, personal injury and property damage
liability. Contractor shall name the Company as an additional insured on all
applicable policies. Contractor shall promptly provide the Company with proof of
such insurance as reasonably requested by the Company.
* Confidential Treatment Requested
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7. Information Reporting. In order to track the progress of each site,
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Company requires the Contractor to adhere to the following reporting methods:
7.1. Site Data Reporting. In addition to the Services in Exhibit A,
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there are a number of data items that must be documented, communicated and
stored by Contractor on behalf of the Company. Contractor will provide such
additional information as reasonably required by the Company.
7.2. Schedule and Milestone Data Reporting. Contractor will maintain
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an accurate and up to date schedule of its engineering activities in a format
reasonably acceptable to the Company.
8. Indemnity. Each of Contractor and the Company agree to defend,
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indemnify and hold harmless the other and all of their affiliates or
subsidiaries companies, their officers, agents and employees from any all costs,
damages, expenses, losses, claims, actions, suits, causes of action, judgments,
and charges of every kind and nature whatsoever, including reasonable attorney's
fees, which may in any manner arise out of or relate to the performance or non-
performance of this Agreement, except as this obligation is limited by Section
11 (Remedies).
9. Protection of Confidential Information and Employees.
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9.1. Confidentiality. Each Party, including its affiliates,
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officers, directors, representatives and agents, shall hold confidential
information received from the other party in confidence, shall use such
information only for the purpose and in accordance with this Agreement, and
shall not disclose such information to any third party without the prior express
written approval of the disclosing party. All confidential information shall
remain the property of the disclosing party and shall be returned on written
request or upon termination of this Agreement. Confidential information shall
not include information that: (i) is or becomes publicly known for no wrongful
act, fault or negligence of the non-disclosing party; (ii) was known by the non-
disclosing party prior to disclosure and the non-disclosing party was not under
a duty of non-disclosure; (iii) was disclosed to the non-disclosing party by
someone not a party to this agreement who was free of obligations of
confidentiality to the disclosing party; (iv) is approved for release by written
authorization of the disclosing party; (v) is publicly disclosed pursuant to a
requirement or request of a governmental agency or where disclosure is required
by operation of law; or (vi) is furnished to someone not a party to this
Agreement by the disclosing party without a similar restriction on rights.
9.2. Employee Protection. During the Term and for a period lasting
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[***] beyond the Term, neither Party shall directly or indirectly solicit for
hire, contract with, retain, or employ anyone employed by the other Party during
the Term.
10. Warranties.
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10.1. No Violation. The Company and Contractor warrant that the
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execution of this Agreement and their performance of their respective
obligations hereunder does not now and will not in the future violate any
agreement with any third party, or any obligation to any third party.
* Confidential Treatment Requested
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10.2. Registration Requirements. Contractor warrants that Contractor
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has complied with all applicable registration and licensing requirements to
enable Contractor to act as an independent contractor under the terms of this
Agreement.
11. Remedies. Upon the sending of written notice to the Company of
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completion of an item set forth in Exhibit A, the Company shall have [***] days
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(the "Warranty Period") to provide written notice to Contractor requiring
Contractor to repair or remedy all defects solely caused by Contractor in
completing the item. This shall be the Company's exclusive remedy. Failure of
the Company to give timely notice during the Warranty Period shall be deemed a
waiver of any right, claim, damages, injury or liability that the Company may
have against Contractor. Contractor shall have up to [***] days at its election
to repair or remedy the defects or else return to the Company the amount
actually received by Contractor for that item.
11.1. Inapplicability. In no event shall Contractor's obligations
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arise for any damage or defect to the extent it is caused or made worse by:
11.1.1. Negligence, improper maintenance or improper operation
by anyone other than WFI or WFI's employees, agents or subcontractors; or
11.1.2. Failure by the Company or by anyone other than
Contractor or Contractor's employees, agents or subcontractors to comply with
the warranty requirements of manufacturers of equipment or other components; or
11.1.3. Failure by the Company to give notice to Contractor of
any defects during the Warranty Period; or
11.1.4. Changes, alterations or additions made to the work by
anyone other than Contractor; or
11.1.5. The failure of anyone other than Contractor to
maintain the work properly; or
11.1.6. Loss or damage that the Company has not taken
reasonable and timely action to minimize; or
11.1.7. Any defect in, caused by, or resulting from, materials
or work supplied by anyone other than Contractor, its employees, agents or
subcontractors; or
11.1.8. Normal wear and tear or normal deterioration; or
11.1.9. Loss or damage caused by, or resulting from,
accidents, riot and civil commotion, fire, explosion, smoke, water escape,
falling objects, aircraft, vehicles, Acts of God, lightning, windstorm, hail,
flood, mudslide, earthquake, volcanic eruption, wind-driven water, or changes in
the underground water table; or
11.1.10. Loss or damage caused by, or resulting from, seepage
of water; or
* Confidential Treatment Requested
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11.1.11. Bodily injury or damage to personal property.
11.2. Disclaimer of Warranties. Following the Warranty Period,
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Contractor shall have no further obligations to the Company for the particular
item. Except as specifically provided herein, CONTRACTOR DISCLAIMS ALL
WARRANTIES OF EVERY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.3. Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED
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HEREIN, CONTRACTOR SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER LEGAL THEORY. Notwithstanding anything in this Agreement to
the contrary or elsewhere, in no event shall Contractor be liable in the
aggregate for more than Contractor actually received from the Company under this
Agreement.
12. Patents. Contractor represents and warrants that it is authorized to
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use, install, or disclose materials, techniques, devices, or information as may
be required to perform the Services required hereunder other than those supplied
by the Company or other parties not affiliated with Contractor, and that all
necessary royalties or license fees have been paid. Subject to this Agreement,
Contractor shall save, defend, hold harmless, and indemnify the Company from any
and all claims, suits and proceedings for the infringement of any patent,
copyright, trade secret or other intellectual property rights arising from the
performance of this Agreement.
13. Protection of Persons and Property.
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13.1. Precautions. Contractor shall at all times take reasonable
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precautions to protect the persons and property of others which may be on or
adjacent to the site of performance of Contractor's obligations hereunder from
damage, loss or injury resulting from performance under this Agreement by
Contractor or any other party with whom Contractor may have subcontracted.
Contractor shall not disturb or displace any protection installed by others.
Subject to this Agreement, any property moved or damaged by Contractor during
the course of performance of the work hereunder shall be returned or repaired by
Contractor, at Contractor's expense, to the Company's reasonable satisfaction.
13.2. Notification of Injury or Damage. Contractor shall promptly
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notify the Company upon learning of any injury, death, loss or damage to any
persons, animals or property that is related to or occurs at the Services site
during the performance of the Services, whether or not caused by or involving in
any way, Contractor, its employees or agents.
14. Taxes. Contractor shall pay all taxes required by law in connection
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with this Agreement, including, without limitation, sales, use, storage, and
similar taxes, and shall secure, at Contractor's expense, all licenses and
permits, pay all charges and fees, and give all notices necessary for the
Contractor's performance of this Agreement and Contractor's furnishing of
materials and shall provide evidence of such upon demand.
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15. Entire Agreement. This Agreement contains the entire understanding of
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the parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
16. Modifications. This Agreement may be modified only in writing
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executed by both parties. Pre-printed terms and conditions that may be printed
on either side of a work order or similar communication shall not supersede the
terms of this Agreement.
17. Assignment. This Agreement may not be assigned except upon the
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written consent of the non-assigning party, which consent may not be
unreasonably withheld; provided, however, that no consent shall be required for
the Company to assign any of its rights hereunder to any of its affiliates,
including, without limitation, AT&T and any of AT&T's affiliated entities, or to
any purchaser of substantially all of the Company's assets, if such affiliate or
purchaser has a net worth equal to or greater than the net worth of the Company
as of the date hereof and the Company remains liable. This Agreement shall be
binding upon the successors and assigns of the Parties.
18. Notices. All notices or other written communications required under
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this Agreement shall be given personally or by certified mail to the parties at
the following addresses:
To the Company: Triton PCS Operating Company, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: The President
Copy To: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Kleinebard, ▇▇▇▇ & Brecker
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Contractor: Wireless Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D., President
Copy To: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All notices shall be effective upon receipt if delivered personally, or
three (3) days following mailing.
19. Governing Law. This Agreement shall be governed by and construed
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according to the internal laws of the State of Delaware without regard to
Delaware's choice-of-law provisions. Venue in any action brought with respect
to this Agreement by the Company shall be in state or federal courts in
Philadelphia, Pennsylvania, and each party consents to the
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jurisdiction of those courts. Venue in any action brought with respect to this
Agreement by Contractor shall be in federal or state court in Virginia, and each
party consents to the jurisdiction of those courts.
20. Attorneys' Fees. In any legal action arising from or relating to this
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Agreement, the substantially prevailing party (as determined by the court) shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding (including, without limitation, expert witness fees),
in addition to any other relief to which the prevailing party may be entitled.
21. Incorporation by Reference. The additional terms and conditions
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contained in any exhibit or attachment are hereby incorporated into this
Agreement.
22. Force Majeure. If the performance of any part of this Agreement,
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except for payment obligations, by either party is delayed, rendered impossible
by reason of natural disaster, acts of God, actions or decrees of governmental
bodies or any other causes entirely beyond the control of the party whose
performance is affected (hereinafter referred to as "Force Majeure Event"), the
party who has been so affected shall immediately give written notice to the
other party of the nature of any such conditions and the extent of delay and
shall do everything possible to resume performance hereunder whenever such Force
Majeure Event is removed or ceases. Upon receipt of such notice, performance of
this Agreement, except for payment obligations, to the extent prevented by Force
Majeure Event shall immediately be suspended. If the period of nonperformance
exceeds ninety (90) days from the receipt of notice of the Force Majeure Event,
the party whose ability to perform has not been so affected may, by giving
written notice, terminate the term of this Agreement.
23. Severability. If any provision in this Agreement is determined by
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any court of competent jurisdiction or arbitrator to be invalid or unenforceable
for any reasons, including without limitation by reason of such provision
extending for too long a period or over too large a subject area, or by reason
of its being too extensive in any other respect, such provision to the specified
extent that it is unenforceable shall be interpreted to extend only over the
maximum period of time or subject area, and to the maximum extent in all other
respects, as to which it is valid and enforceable, thereby effectuating the
parties' intent to the greatest extent possible. The invalidity or
unenforceability of any particular provisions of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
24. Attorney Consultation. Each party has been informed of its right to
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consult with its own attorney prior to signing this Agreement and has either
done so or has considered the matter and has decided not to do so. As each
party has had opportunity to consult independent legal counsel, the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement.
25. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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26. Effective Date. Notwithstanding anything herein to the contrary, the
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Company shall have the right to terminate the term of this Agreement upon
written notice to Contractor if the Company has not acquired the PCS License for
the Virginia and South Carolina trading areas from AT&T provided, however, that
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if the Company fails to obtain such PCS Licenses for the Service Area from AT&T,
then the Company shall pay to Contractor all professional fees and out-of-pocket
expenses incurred by Contractor, in accordance with the payment terms under
Section 5, prior to Contractor's receipt of notification from the Company of the
Company's failure to obtain the PCS Licenses.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TRITON PCS OPERATING COMPANY, L.L.C., WIRELESS FACILITIES, INC.,
a Delaware limited liability a New York corporation (currently
company reincorporating in Delaware)
By: Triton Management Company, Inc., By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
______________________________
its Manager Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
_______________________
Title: President
____________________
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
__________________________
Title: Executive Vice President
and CTO
_________________________
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Exhibit A
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SERVICES
RF Engineering Scope Of Work
A. Preliminary Design
1. Definition: Coverage will be defined by the Company, and agreed upon
by Contractor, including coverage objectives and environment (urban, suburban,
rural), in-building and in-car penetration criteria, link budget and the overall
launch area. Design criteria will also include grade of service (blocking
objective) as well as estimated subscriber usage levels.
2. Contractor Scope
Procedure: Contractor will perform propagation model optimization
drive testing before issuing the Preliminary Design. The sites will be
identified in communication with the site acquisition contractor to
allow for simultaneous model optimization and site evaluation. The
following minimum number of sites will be drive tested for each
category:
Urban [***]
Suburban [***]
Rural (w/foliage) [***]
Rural (w/o foliage) [***] (where applicable)
Contractor will identify slope and intercept and determine standard
deviation on the error between measurement and preparation model
optimization. An effort will be made to keep this error in the 8dB
range for determination of optimal slope and intercept.
Search rings will be issued based on study of existing structures,
friendly sites, co-locations and zoning criteria in order to minimize
site acquisition cost and timeline. An initial study of the existing
structures and land will be performed with site acquisition.
Deliverable: Search rings will have a cover letter listing map name,
site ID, latitude, longitude, minimum and maximum radiation center site
name, target AGL (above ground level). Search rings will be released on
copies of USGS 7 1/2 minute quad maps. Search ring information may
change according to acquisition request. Site coverage objectives will
accompany the search ring. A map will also be issued identifying the
surrounding site locations. Contractor will create an optimized model
with zero mean error, slope and intercept for the four (4) site
categories described above with associated
* Confidential Treatment Requested
A-1
standard deviation on the prediction error. Contractor will document
results in the Preliminary Design report used for all subsequent
propagation analyses.
Deliverable Time Line: The search ring package will be delivered
after the Company has reviewed the design and approved the release of
search rings.
B. Site Candidate Evaluation and Approval
Contractor will evaluate the candidate sites per search ring identified by
the site acquisition contractor. The process is broken down as follows:
1. Site Survey
Definition: Visit each identified candidate for RF suitability.
Determine antenna locations. Identify coverage limitations and
comparison with any other candidates. The site survey will be
performed with site acquisition and construction personnel.
Deliverable: The survey will consist of determining the suitability
of the site, identification of desired antenna location, antenna
orientation and justification of the site.
Deliverable Time Line: The engineers will survey each site within
[***] of receiving the site candidate from site acquisition. A
survey site report (documented site survey results) will be
[documented] within [***] of the site visit.
2. Drive Testing
Definition: Upon the Company's approval of the survey, Contractor
will initiate a drive test for the site. All necessary drive testing
equipment will be provided by Contractor. Site access will be
coordinated with site acquisition.
Procedure: Based on the RF coverage objective set forth in the
Preliminary Design, Contractor may evaluate the site by drive testing
(at least [***] of primary sites will be drive tested and upon the
Company's request, up to [***] of that [***] will be drive tested
using panel antennas). The drive testing shall be limited to one
primary candidate per search ring as agreed upon by the Company and
Contractor. The Company will reserve the right to require Contractor
to conduct additional drive tests in a search ring as necessary at
additional charge according to Contractor's normal published hourly
rates then in effect. Contractor will verify and record antenna type,
gain, transmitter power output, cable losses, EIRP and a picture of
the antenna set up. The equipment used will be calibrated with a dB of
accuracy. Contractor will coordinate the required test frequency with
a contractor selected by the Company. The frequencies will be approved
by the Company.
* Confidential Treatment Requested
A-2
Deliverable Time Line: Drive test will be completed within [***]
of determination of preliminary site by the Company. The drive test
report will be completed within [***]of drive test completion.
A final site evaluation (approval/rejection) will be issued based on site
visit, drive testing and site availability. If the primary site is rejected,
Contractor will select another candidate site at the Company's cost according to
Contractor's normal published hourly rates then in effect for drive testing and
evaluation. Any candidate finally approved by Contractor and the Company will be
referred to as an RF Approved Site.
3. Detailed Site Design
Definition: Antenna type, frequency planning, downtilts, interference
reduction, orientation and location will be identified on the site
sketch provided by the A&E firm approved by the Company. Necessary
prediction/measurement data analyses will be performed by Contractor
to optimally configure the antenna placement on all the RF Approved
Sites.
Procedure: All zoning construction drawings prepared by the A&E firm
will be signed off by the Contractor for the purpose of verifying that
the RF coverage objectives are met. Contractor will verify the
antenna height, placement, orientation, downlift and type. Site
configuration will be determined (omni/sector, equipment type) based
on forecasted traffic usage. Contractor will not provide FAA analyses
but will be required to provide the Company with the information
reasonably necessary for such filings for FCC and FAA filings.
Deliverable: Contractor will provide the Company with detailed site
design in accordance with procedure above subject to the Company's
approval ("Detailed Site Design").
Deliverable Time Line: Detailed Site Design will be completed within
[***] after site sketch is provided to Contractor.
4. Design Review
Definition: The objective of design review ("Design Review") is to
verify that all the desired strategic coverage areas are covered in
the Detailed Site Design and to compare the predicted and actual
design cell count. The design cell count will be based on an
optimized propagation model determined by Contractor.
Procedure: An optimized propagation model will be used to develop a
system coverage analysis. The Preliminary Design will be compared
with the Detailed Site Design to determine any changes in the design
cell count. Measurement data from the drive test will be used
primarily to determine the
* Confidential Treatment Requested
A-3
design cell count, and the propagation model will be used for all the
remaining sites. Contractor will perform a capacity analysis to
ensure that all cells have adequate capacity to meet the forecasted
demand determined by the Company and Contractor after final site
approval and before frequency planning.
Deliverable: A system wide coverage plot will be produced to
determine the coverage performance and design cell count. Prediction
plots will be used in place of measured date if a Detailed Site Design
has not been approved by the Company. Contractor will generate a
report documenting the coverage performance and the cell count
comparison between the Design Review and Preliminary Design.
Deliverable Time Line: [***] design review reports will be developed
by Contractor after completion of [***] of the Detailed Site Design
has been approved by the Company for all sites (each a "Design Review
Report").
5. Traffic Engineering
Definition: Contractor will develop a capacity forecast based on the
Company provided demand parameters. Contractor will identify
forecasted channel, capacity and site configuration requirements.
Procedure: Based on the Company provided market segmentation (%
mobile, residential, business, etc.), penetration and subscriber usage
pattern (mou/sub,mE/sub) a [***] year capacity analysis forecast will
be developed to determine site configuration (omni/sector), number of
RF channels and carriers, and capacity cell addition. This analysis
will be performed on a per sector basis during the Detailed Site
Design procedure. Contractor is required to meet AT&T standards for
the percentage of blocking, which requirements will be provided by the
Company.
Deliverable: This information will be provided in each Design Review
Report identifying the following: number of channels and erlangs per
sector, cell configuration, capacity cells.
6. Build Verification
Definition: Verification of site build and antenna placement
determining whether site is built according to the Contractor's
specifications.
Procedure: Contractor will verify that sites are built with correct
antenna placement and orientation. Installation accuracy will be
reviewed in relation to construction specifications based on antenna
and cable run sweeps.
* Confidential Treatment Requested
A-4
Deliverable: Build verification check sheet will be completed and
provided to the Company. The Company will authorize any modification
of the Work, which will be verified by Contractor.
Deliverable Time Line: Check sheet completed within [***] of request
for verification by the Company.
C. Optimization
System optimization support will be provided by RF using Contractor
provided optimization tools (primarily using items from Ericcson). The
optimization is divided into the following sub-tasks:
1. Site Specific Optimization
Definition: Site specific parameters will be recommended by
Contractor and Contractor will put in specific format of Ericcson for
switchloading.
Procedure: As the sites are integrated into the network, Contractor
will set the parameters, test the site for coverage and hand-offs, and
verify the link balance. Any software parameter changes will be
implemented by the Company and verified by Contractor and any RF
configuration changes will be recommended to the Company. Contractor
will test the features and originate and terminate a call per sector.
Deliverables: All information regarding a particular site will be
recorded and presented to the Company.
Deliverable Time Line: Within [***] after the site is in service
and available for testing.
2. Network Verification Drive
Definition: Network-wide drive test to establish performance
benchmarks.
Procedure: A network wide drive test will be performed by
Contractor. This will provide the data required to establish the
network coverage and quality statistics and to identify any marginal
service areas. System performance benchmarks will then be established
as a result of the tests.
Deliverables: A system wide performance report will be developed by
Contractor identifying areas of poor coverage, interference, incorrect
site parameters, and an action plan to correct these performance
deficiencies within [***] after the network-wide drive test is
completed.
* Confidential Treatment Requested
A-5
3. Pre-launch Optimization Process
Pre-Launch optimization will be carried out by Contractor to verify the
correct operation of the network, identifying the coverage area of each
site, validating parameters and neighbors, and documenting performance
benchmarks that meet the specified grade of service. It provides vital
data for the post-launch optimization engineers who may implement RF
configuration changes to improve the overall coverage of the network, and
who change software parameters to maintain the integrity of the system as
the traffic loan increases. The documentation produced in the process
shall accurately reflect the network performance statistics. The
percentage of dropped calls will meet AT&T standards.
4. FAA
The Contractor will provide all reasonably necessary information to the
Company approved airspace analysis contractor. Contractor will not be
responsible for filing FAA forms.
5. FCC
RF will furnish to the Company all reasonably necessary information
required for PCIA and FCC filings as requested in writing by the Company.
Contractor will not be responsible for filing FCC forms.
6. Zoning Support
Contractor will provide technical support, as reasonably necessary to
support land use planning, jurisdictional hearings and zoning functions.
This may consist of providing plots from drive testing, and the propagation
model or written justifications defending an application for a variance.
Contractor agrees to provide expert testimony as required for zoning
hearings at its published hourly rates.
A-6
Exhibit B
---------
PRICES
B.1 Price Per Site. This Agreement calls for the Company to pay for each
--------------
cell site (each, a "Site") on a fixed price basis of [***] Dollars ($[***]) per
Site. If Contractor does not license hardware or software to the Company upon
completion of a Site, the price per Site shall be [***] Dollars ($[***]).
Contractor is hiring and relocating engineers and making commitment to them and
to others based on these representations.
B.2 Schedule Of Payments. Subject to Section 5 of this Agreement, the
--------------------
Company shall pay the Prices to Contractor for each Site in [***] equal
installments of [***] Dollars ($[***]) each due and payable upon the following
events:
B.2.1 [***]
B.2.2 [***]
B.2.3 [***]
B.2.4 [***]
* Confidential Treatment Requested
B-1
B.3 Incomplete Sites. If work is halted on a particular Site due to
----------------
change of plan or another reason not caused by Contractor, the Company shall pay
Contractor on a pro-rata basis under which Contractor shall be paid in full for
completed benchmarks and in part for incomplete benchmarks.
B.4 Additional Services. If the Company requests Contractor to provide
-------------------
additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Contractor shall pay for those services
consistent with Section 5 of this Agreement, at Contractor's standard hourly
billing rates then in effect. For 1997, Contractor's standard hourly rates are
as follows: [***] Dollars ($ [***]) per hour for Associate Engineers, [***]
Dollars ($ [***]) per hour for Design Engineers, [***] Dollars ($ [***]) per
hour for Senior Engineers, and [***] Dollars ($ [***]) per hour for Project
Managers.
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
B.5.1 [***]
B.5.2 [***]
B.5.3 [***]
B.5.4 [***]
B.5.5 [***]
B.5.6 [***]
B.5.7 [***]
B.5.8 [***]
B.5.9 [***]
B.5.10 [***]
B.5.11 [***]
B.5.12 [***]
B.5.13; and [***]
B.5.14 [***]
* Confidential Treatment Requested
B-2
All other expenses not explicitly listed in Section B.5 shall be borne by
the Company, including but not limited to [***].
B-3
TRITON PCS OPERATING COMPANY LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
October 19, 1998
Wireless Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998 (the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Agreement, the Agreement is amended by replacing Exhibit B attached thereto with
Exhibit 1 attached hereto. The Prices set forth on Exhibit 1 shall apply only
to search rings issued before the date of this Letter Agreement. The Prices set
forth on Exhibit B shall apply to search rings issued before the date of this
Letter Amendment.
Except for the foregoing change, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.,
By: Triton Management Company, Inc.
its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Exhibit 1
---------
PRICES
B.1 Price Per Site. This Agreement calls for the Company to pay for each
--------------
cell site (each, a "Site") on a fixed price basis of [***] Dollars ($[***]) per
Site. If Contractor does not license hardware or software to the Company upon
completion of a Site, the price per Site shall be [***] Dollars ($[***]).
Contractor is hiring and relocating engineers and making commitment to them and
to others based on these representations.
B.2 Schedule Of Payments. Subject to Section 5 of this Agreement, the
--------------------
Company shall pay the Prices to Contractor for each Site in [***]
installments in the following amounts, due and payable upon the following
events (each, a "Benchmark"):
B.2.1 [***]
B.2.2 [***]
B.2.3 [***]
B.2.4 [***]
* Confidential Treatment Requested
1-1
B.3 Incomplete Sites. If work is halted on a particular Site due to
----------------
change of plan or another reason not caused by Contractor, the Company shall pay
Contractor on a pro-rata basis under which Contractor shall be paid in full for
completed benchmarks and in part for incomplete benchmarks.
B.4 Additional Services. If the Company requests Contractor to provide
-------------------
additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Company shall pay for those services consistent
with Section 5 of this Agreement, at Contractor's standard hourly billing rates
then in effect. For 1998-1999, Contractor's standard hourly rates are as
follows: [***] Dollars ($ [***]) per hour for Associate Engineers, [***] Dollars
($ [***]) per hour for Design Engineers, [***] Dollars ($ [***]) per hour for
Senior Engineers, and [***] Dollars ($ [***]) per hour for Project Managers.
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
B.5.1 [***]
B.5.2 [***]
B.5.3 [***]
B.5.4 [***]
B.5.5 [***]
B.5.6 [***]
B.5.7 [***]
B.5.8 [***]
B.5.9 [***]
B.5.10 [***]
B.5.11 [***]
B.5.12 [***]
B.5.13; and [***]
B.5.14 [***]
* Confidential Treatment Requested
1-2
TRITON PCS OPERATING COMPANY LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
November 2, 1998
Wireless Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 (as so amended, the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding thereto to the
following Section D:
D. Maintenance of RF Network Performance ("Maintenance Services")
After completion of the Build Verification and Optimization
Milestone, the Contractor will provide the services set forth below
with respect to each launched site. In addition, so long as
Contractor performs Maintenance Services under this Agreement,
Contractor will maintain where currently located the seven (7) Planet
Stations that are currently deployed in Company regions.
1. Dropped call rate analysis per sector. Dropped calls will be
categorized due to signal strength, bad quality, timing
advancement, etc.
2. Handover attempts
3. Handover failure and success (Ratios, etc.)
4. Call attempt (Completion and Failure)
5. Call Setup completion rate
6. Traffic Channel utilization rate
7. Busy hour traffic analysis per sector
8. Network footprint drive test
9. Network quality drive test
10. Frequency planning
11. Network parameter setting
12. Antenna orientation and down-tilt setting
13. Network trouble shooting
14. Competitor footprint test (Twice each year per region)
15. Current 10 worst performance lists of sites per BTA and brief
description as to the possible cause of the poor performance
and recommended solution
16. Handle all RF related trouble tickets
17. Work with Triton Corporation to evaluate new phones as needed
18. Update frequency plan, neighbor list and all RF parameters on
an ongoing basis
19. Daily statistical report to Triton Management, including
historical data and
trends, weekly and monthly averages
20. Investigate and resolve all RF related problems
2. Exhibit B to the Agreement is amended by adding thereto to the
following Section B.6:
B.6. Maintenance of RF Network Performance
B.6.1 Contractor will be paid a fee of [***] per sit, per month,
for the performance of the Maintenance Services set forth in Section D
of Exhibit A.
B.6.2 The fee for the Maintenance Services includes compensation
for the following expenses:
[***]
Except for the foregoing changes, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.
By: Triton Management Company, Inc.
its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
* Confidential Treatment Requested
[WFI Letterhead]
April 20, 1999
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
Triton PCS Operating Company, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Letter Amendment Number 3 to Master Services Agreement dated 1/19/98
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 and November 2, 1998 (as
so amended, the "Agreement") between Triton PCS Operating Company, L.L.C.
("Triton") and Wireless Facilities, Inc. ("WFI"). Capitalized terms not
otherwise defined in this letter amendment have the same meanings as specified
in the Agreement.
Triton and WFI hereby agree that effective as of the date of this letter
amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding the following Section
E:
E. Fixed Network and Customer Care Engineering Support Services
a. Services: WFI will perform fixed network and customer
care engineering services as directed by
Triton including working with the customer
care center to define areas for improvement
in engineering and operations and working to
resolve such issues.
b. Service Fee: WFI will provide engineers to Triton to
perform fixed network design services at the
hourly rates for additional services as set
forth in Exhibit 1 of the amended Agreement.
c. Expenses: Travel and other expenses shall be passed
through to Triton with an administrative
markup of [***]%.
d. Invoicing: WFI will invoice Triton on a monthly basis
for hours worked and expenses incurred
during the previous month.
*Confidential Treatment Requested
e. Staff Assignment: WFI, will identify, based on Triton's
requirements, appropriate staff and
corresponding classifications on a per
project basis. WFI will present this
information to Triton for review and
approval.
Except for the foregoing change, all other terms and conditions of the Agreement
shall remain the same and continue in full force and effect, and the Agreement,
as amended hereby, shall constitute the legally valid and binding obligation (to
the extent specifically provided therein and herein) of the parties hereto
enforceable in accordance with its terms. If Triton agrees to the terms and
conditions hereof, please evidence such agreement by having an authorized
signatory execute this letter where indicated below and return a copy to us at
the address set forth above.
Sincerely,
WIRELESS FACILITIES, INC.
By: /s/ Dee Aliphanah
-----------------------------
Name: Dee Aliphanah
Title: Vice President
AGREED TO AND ACCEPTED
AS OF THE DATE FIRST ABOVE
WRITTEN BY:
TRITON PCS OPERATING COMPANY L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President