MASTER EQUIPMENT AND FACILITIES LEASE AGREEMENT by and between METROPCS WIRELESS, INC. and ROYAL STREET COMMUNICATIONS, LLC
Exhibit 10.11
EXECUTION COPY
by and between
METROPCS WIRELESS, INC. and ROYAL STREET COMMUNICATIONS, LLC
LESSEE:
|
Royal Street Communications, LLC | |
Address:
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0000 Xxxxxxx Xxxx | |
| Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
LESSOR:
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MetroPCS Wireless, Inc. | |
Address:
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0000 Xxxxxx Xxxx Xxxx | |
| Xxxxx 000 | ||
| Xxxxxx, XX 00000 |
Lease Number: 0001
1. AGREEMENT. Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the
Equipment and Facilities as more fully described in any schedule (individually a “Schedule” and
collectively the “Schedules”) that is or are incorporated by reference into this Master Equipment
and Facilities Lease Agreement (the “Agreement”). Each Schedule shall be incorporated by reference
into this Agreement by listing the above-referenced Lease Number thereon and shall upon such
incorporation be deemed to become part of a single integrated agreement governed by the terms and
conditions of this Agreement, as well as by the terms and conditions set forth in the applicable
Schedule. Each Schedule, when taken with this Agreement and all other Schedules, shall constitute
the entire agreement. All capitalized terms herein which are not defined herein shall have the
meanings ascribed to them in the Services Agreement, dated as of November 24, 2004, between
MetroPCS Wireless, Inc. and Royal Street Communications, LLC (the “Services Agreement”).
2. APPOINTMENT OF LESSOR AS PURCHASING AGENT. Lessee has delivered to Lessor copies of the
Construction Plan and Technical Services Plan (collectively, the “Plans”) that have been duly
approved by the Management Committee of Royal Street. Together, the Plans specify the Equipment and
Facilities to be utilized in the construction and operation of the Royal Street Systems. Lessee
authorizes Lessor to act as Lessee’s agent to issue a purchase order to any third party for the
Equipment and Facilities (each, a “Seller”) and for necessary related goods and
services in accordance with the Plans. Such purchase order shall be subject to this Section 2
and all references in this Agreement to Purchase Documents shall include such purchase order. By
executing the applicable Schedule, Lessee represents and warrants that Lessee has reviewed,
approved and received a copy of the applicable Purchase Documents.
3. DELIVERY; ACCEPTANCE. Lessor shall cause the Equipment and Facilities to be delivered, at
Lessee’s expense, to Lessee at the Equipment and Facilities Location (as specified in the
applicable Schedule) and Lessee shall accept the Equipment and Facilities upon the later of (a)
| *** | Where this marking appears throughout this Exhibit 10.11, information has been omitted pursuant to a request for confidential treatment and such information has been filed with the SEC separately. |
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the installation of the Equipment and Facilities or (b) the satisfaction of the acceptance
criteria, if any, specified in the applicable Purchase Documents. In any event, Lessee shall
evidence its acceptance of the Equipment and Facilities and commencement of this Agreement with
respect thereto by executing and delivering to Lessor a commencement certificate (the “Commencement
Certificate”) in a form acceptable to Lessor within five (5) business days after delivery. By
executing and delivering a Commencement Certificate to Lessor, Lessee represents and warrants that
it has irrevocably accepted such Equipment and Facilities under this Agreement. Lessee shall
reimburse Lessor for any late payment, interest on late payment or any other similar fee or charge
imposed by Seller as the result of Lessee’s failure to timely furnish its acceptance and all
pertinent lease documentation.
4. PURCHASE OF EQUIPMENT AND FACILITIES. Provided that no Event of Default (as defined in
Section 18) exists, and no event has occurred and is continuing that with notice or the lapse of
time or both would constitute an Event of Default, Lessor shall be obligated to purchase the
Equipment and Facilities from Seller and to lease the Equipment and Facilities to Lessee if and
only if Lessor receives on or before the Latest Commencement Date (as specified in the applicable
Schedule) the related Commencement Certificate and Schedule executed by Lessee, and such other
documents or assurances as Lessor may reasonably request.
5. TERM.
The initial term of each Schedule shall begin on the date specified as the
Commencement Date on the Commencement Certificate with respect to such Schedule and shall, unless
otherwise specified in the Schedule, continue for a period of *** (the “Initial Term”)
with *** renewal terms (each a “Renewal Term”), at Royal Street’s written election,
beginning on the expiration of, as applicable, the Initial Term or any preceding Renewal Term
(collectively, the “Term”). At any time after *** following the Commencement
Date of a Schedule, Lessee may terminate such Schedule prior to the end of its Term upon ninety
(90) days prior written notice to Lessor (“Termination Notice”) provided that no such Termination
Notice shall be effective unless, prior to or on the effective date of such Termination Notice,
Lessee shall have paid Lessor the Lessor’s Return (as hereinafter defined) for the Equipment and
Facilities set forth in such Schedule. Lessee’s failure to pay the Lessor’s Return prior to or on
the effective date of such Termination Notice shall render such Termination Notice ineffective and
Lessee shall continue to make the Rental Payments set forth in such Schedules.
6. RENT; LATE CHARGES. Lessee shall pay Lessor the first Rental Payment (as specified in the
applicable Schedule) for the Equipment and Facilities on or before the Commencement Date of the
applicable Schedule and shall pay Lessor the remaining periodic Rental Payments on or before the
periodic payment dates specified in the applicable Schedule. If, pursuant to this Agreement or the
applicable Schedule, the Term is extended, Lessee shall also pay all Rental Payments required with
respect thereto. In the case of a breach or an Event of Default on the part of Lessee under this
Agreement or any Schedule, all Rental Payments shall become immediately due and payable by Lessee
without demand or notice, without any court order or other process of law and without liability to
Lessee for any damages occasioned by such action, and all Equipment and Facilities are to be
immediately returned to Lessor’s possession in the same condition provided to the Lessee, less
reasonable wear and tear. Lessor is under no duty to mitigate any damages caused by Lessee’s breach
or Event of Default. All Rental Payments will be sent to Lessor’s above-referenced address, or to
such other address as specified by Lessor in writing.
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Lessee
agrees to pay Lessor interest at the rate of *** per month (or such lesser rate as
is the maximum rate allowable under applicable law) on any Rental Payment (or other amount due
hereunder) that is not paid within ten (10) days of its due date.
7. INSURANCE. At its own expense, Lessee shall provide and maintain the following
insurance: (a) insurance against the loss or theft of or damage to the Equipment and
Facilities for the greater of the Stipulated Loss Value (computed as described in the applicable
Schedule) or full replacement value thereof, naming Lessor as a loss payee; and (b) public
liability and third-party property damage insurance, naming Lessor as an additional insured. Such
insurance shall be in a form, amount and with companies reasonably satisfactory to Lessor, shall
contain the insurer’s agreement to give Lessor thirty (30) days’ prior written notice before
cancellation or material change thereof, and shall be payable to Lessor regardless of any act,
omission or breach by Lessee. Lessee shall deliver to Lessor the insurance policies or copies
thereof or certificates of such insurance on or before the Commencement Date of the applicable
Schedule, and at such other times as Lessor may reasonably request. If no Event of Default exists,
and no event has occurred and is continuing that with notice or the lapse of time or both would
constitute an Event of Default, the proceeds of any insurance required under clause (a) hereof that
have been paid to Lessor shall be applied against Lessee’s obligations to Lessor under Section 12
hereof.
8. TAXES. Lessee shall reimburse Lessor for (or pay directly, but only if instructed by
Lessor) all taxes, fees, and assessments that may be imposed by any taxing authority on the
Equipment and Facilities, on its purchase, ownership, delivery, possession, operation, rental,
lease, return to Lessor or its purchase by Lessee (collectively,
“Taxes”); provided, however, that Lessee shall not be liable for any such Taxes (whether imposed by the United
States of America or by any other domestic or foreign taxing authority) imposed on or measured by
Lessor’s net income or tax preference items. Lessee’s obligation includes, but is not limited to,
the obligation to pay all license and registration fees and all sales, use, excise, personal
property and other taxes and governmental charges, together with any penalties, fines and interest
thereon, that may be imposed during the Term of the applicable Schedule. Lessee is liable for these
Taxes whether they are imposed upon Lessor, Lessee, the Equipment and Facilities, this Agreement or
the applicable Schedule. If Lessee is required by law or administrative practice to make any report
or return with respect to such Taxes, Lessee shall promptly advise Lessor thereof in writing and
shall cooperate with Lessor to ensure that such reports are properly filed and accurately reflect
Lessor’s interest in the Equipment and Facilities. Lessor has no obligation to contest any such
Taxes; however, Lessee may do so provided that: (a) Lessee does so in its own name and at its own
expense; (b) the contest does not and will not result in any lien attaching to any Equipment and
Facilities or otherwise jeopardize Lessor’s right to any Equipment and Facilities; and (c) Lessee
indemnifies, defends, and holds harmless Lessor for all expenses (including legal fees and costs),
liabilities and losses that Lessor incurs as a result of any such contest.
9. REPAIRS; USE; LOCATION; LABELS. Lessee shall: (a) at its own expense, keep the Equipment
and Facilities in good repair, condition and working order and maintained in accordance with the
manufacturer’s recommended engineering and maintenance standards by personnel certified to work on
such Equipment and Facilities; (b) use the Equipment and Facilities lawfully and exclusively in
connection with its business operations and for the purpose for which the Equipment and Facilities
was designed and intended; and (c) without Lessor’s prior written
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consent, not move the Equipment and Facilities from the Equipment and Facilities Location. If
Lessor supplies Lessee with labels stating that the Equipment and Facilities is owned by Lessor,
Lessee shall affix such labels to the Equipment and Facilities pursuant to Lessor’s instructions.
10. ACCESS; MAINTENANCE; INSPECTION; ALTERATIONS. Lessee shall have Unfettered Access to the
Equipment and Facilities. At its own expense, Lessee shall: (a) enter into and maintain a
maintenance agreement for the Equipment and Facilities with the manufacturer or other party
certified to maintain such Equipment and Facilities who is acceptable to Lessor; (b) maintain the
Equipment and Facilities in the same condition as when delivered, subject only to ordinary wear and
tear, and in good operating order and appearance; (c) make all alterations or additions to the
Equipment and Facilities that may be required or supplied by the Seller, the manufacturer,
applicable regulatory agencies, or which is otherwise legally necessary; and (d) make no other
alterations or additions to the Equipment and Facilities (except for alterations or additions that
will not impair the value or performance of the Equipment and Facilities and that are readily
removable without damage to the Equipment and Facilities). Any modifications, alterations, repairs,
or additions that Lessee makes to the Equipment and Facilities (except as permitted by Section
10(d) above) shall become Lessor’s property and shall also be deemed to be Equipment and
Facilities. Upon request, Lessor, or any party designated by Lessor, shall have the right to
inspect the Equipment and Facilities and Lessee’s applicable maintenance agreement and records at
any reasonable time.
11. PERSONAL PROPERTY; LIENS AND ENCUMBRANCES; TITLE. The Equipment and Facilities shall at
all times remain personal property, notwithstanding that the Equipment and Facilities, or any part
thereof, may be (or becomes) affixed or attached to real property or any improvements thereon.
Except for the interest of Lessor, Lessee shall keep the Equipment and Facilities free and clear of
all levies, liens and encumbrances of any nature whatsoever. Except as expressly set forth in this
Agreement, the Equipment and Facilities shall at all times remain the property of Lessor and Lessee
shall have no right, title or interest therein.
12. RISK OF LOSS. As between Lessor and Lessee, Lessee shall bear the entire risk of loss,
theft, destruction or damage to the Equipment and Facilities from any cause whatsoever or
requisition of the Equipment and Facilities by any governmental entity or the taking of title to
the Equipment and Facilities by eminent domain or otherwise (collectively, a “Loss”). Lessee shall
advise Lessor in writing within ten (10) days of any such Loss. Except as provided below, no such
Loss shall relieve Lessee of the obligation to pay Lessor Rental Payments and all other amounts
owed hereunder. In the event of any such Loss, Lessor, at its option, may: (a) if the Loss has not
materially impaired the Equipment and Facilities (in Lessor’s reasonable judgment), require Lessee,
upon Lessor’s demand, to place the Equipment and Facilities in good condition and repair reasonably
satisfactory to Lessor; or (b) if the Loss has materially impaired the Equipment and Facilities (in
Lessor’s reasonable judgment), require Lessee, upon Lessor’s demand, to pay Lessor ***. Upon Lessor’s full receipt of such Lessor’s Return: (y) the applicable
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Schedule shall terminate, and except as provided in Section 24, Lessee shall be relieved of all
obligations under the applicable Schedule; and (z) Lessor shall transfer all of its interest in the
Equipment and Facilities to Lessee “AS IS, WHERE IS,” and without any warranty, express or implied
from Lessor, other than the absence of any liens or claims by, through, or under Lessor.
Notwithstanding clause (b) in this Section 12, Lessor may, at its option, elect to have Lessee
continue Rental Payments under the applicable Schedule, without interruption, and replace the
damaged Equipment and Facilities with Equipment and Facilities of identical model, manufacturer and
condition (“Replacement Equipment and Facilities”), in which case Lessee shall cause the
Replacement Equipment and Facilities to be delivered to a location acceptable to Lessor and shall
convey title (lien free) to the Lessor whereupon the Replacement Equipment and Facilities shall be
subject to all of the terms and conditions of this Agreement and the applicable Schedule.
13. NON-CANCELABLE NET LEASE. Except as provided in Section 5 hereof, all leases hereunder
shall be non-cancelable net leases, and Lessee agrees that it has an unconditional obligation to
pay all rental payments and other amounts when due. Lessee may xxxxx or reduce rental payments or
any other amounts due, or may set off any charges against those amounts, provided, such abatement,
reduction or set off is for obligations between Lessor and Lessee. Lessee is not entitled to
recoupments, cross-claims, counterclaims or any other defenses to any rental payments or other
amounts due hereunder, whether those defenses arise out of claims by Lessee against Lessor, Seller,
this Agreement, any schedule or otherwise. Neither defects in Equipment and Facilities, damage to
it, nor its loss, destruction or late delivery, shall terminate this Agreement or any schedule, or
affect Lessee’s obligations hereunder. Unless Lessee’s obligation to pay rental payments and other
amounts has been terminated pursuant to the express terms of this Agreement, all rental payments
and other amounts shall continue to be due and payable hereunder.
14. LESSOR DISCLAIMERS; LIMITATION OF REMEDIES. It is specifically understood and agreed that:
(a) Lessor shall not be deemed to have made any representation, warranty or promise made by Seller,
neither Seller nor Lessor shall act as, or be deemed to be, an agent of the other, and Lessor shall
not be bound by, or liable for, any representation or promise made by Seller; (b) Lessor shall not
be liable for any failure of any Equipment and Facilities or any delay in its delivery or
installation; (c) Lessor shall not be liable for any breach of any warranty that Seller may have
made; (d) Lessee has selected all Equipment and Facilities; (e) Lessor is not a manufacturer of any
Equipment and Facilities; and (f) the Equipment and Facilities are provided by Lessor “AS-IS”
without any warranties of any kind from Lessor and Lessor has not made and does not now make any
representation or warranty, express or implied, with respect to the design, compliance with
specifications, operation, or condition of any Equipment and Facilities (or any part thereof), the
merchantability or fitness of Equipment and Facilities for a particular purpose, or issues
regarding patent infringement, title and the like. It is further agreed that Lessor shall have no
liability to Lessee, Lessee’s customers, or any third parties for any direct, indirect, special,
punitive, treble, or consequential damages arising out of this Agreement or any schedule or
concerning any Equipment and Facilities, or for any damages based on strict or absolute tort
liability; provided, however, that nothing in this Agreement shall deprive Lessee of any
rights it may have against any person other than Lessor. Lessee shall look solely to Seller for any
and all claims and warranties relating to the Equipment and Facilities. Lessor hereby assigns to
Lessee for the term of the applicable schedule the right to enforce, provided no Event of Default
then exists under this Agreement and such enforcement is pursued in Lessee’s name, any
representations, warranties and
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agreements made by Seller pursuant to the purchase documents, and Lessee may retain any recovery
resulting from any such enforcement efforts. To the extent permitted by applicable law, Lessee
waives any and all rights and remedies conferred upon a Lessee by Article 2a of the UCC and any
rights now or hereinafter conferred by statute or otherwise that may limit or modify Lessor’s
rights as described in this section or other sections of this Agreement. In the event of any breach
of any warranty or obligation under this Agreement, Lessee’s sole remedy shall be for Lessor to
reperform the obligation hereunder. LESSEE’S SOLE REMEDIES AGAINST LESSOR OR LESSOR’S SUPPLIERS FOR
LOSS OR DAMAGE RESULTING FROM, ARISING IN CONNECTION WITH, OR CAUSED BY, EITHER DIRECTLY OR
INDIRECTLY, DEFECTIVE ITEMS OF EQUIPMENT OR FACILITIES, OR PARTIAL OR TOTAL FAILURE OF THE
EQUIPMENT OR FACILITIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT
NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LESSEE’S RIGHT TO RECEIVE THE
SELLER’S REPAIR OR REPLACEMENT SERVICE DESCRIBED IN ITS LIMITED
WARRANTY. The foregoing shall be
Lessee’s sole and exclusive remedies at law or in equity, except for Lessee’s right to claim
damages for bodily injury to any person caused by the negligence of Lessor. The parties further
agree that the foregoing allocation of risk shall, in the event of Seller’s inability, despite good
faith efforts, to meet its warranty obligations hereunder, remain in effect regardless of whether
the exclusive remedies provided for under this Section 14 then satisfy the essential purposes for
which they were intended, or otherwise provide Lessee with a fair quantum of relief.
15. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor that: (a)
Lessee is duly organized, validly existing and in good standing under applicable law; (b) Lessee
has the power and authority to enter into this Agreement, all Schedules and all other related
instruments or documents hereunder (collectively, the “Fundamental Agreements”); (c) such
Fundamental Agreements are enforceable against Lessee in accordance with their terms and do not
violate or create a default under any instrument or agreement binding on Lessee; (d) there are no
pending or threatened actions or proceedings before any court or administrative agency that would
have a material adverse effect on Lessee or any Fundamental Agreement, unless such actions are
disclosed to Lessor and consented to in writing by Lessor; (e) Lessee shall comply in all material
respects with all Federal, state and municipal laws and regulations the violation of which could
have a material adverse effect upon the Equipment and Facilities or Lessee’s performance of its
obligations under any Fundamental Agreement; (f) Lessee shall obtain all governmental approvals
necessary for it to enter into and perform each Fundamental Agreement; (g) each Fundamental
Agreement shall be effective against all creditors of Lessee under applicable law, including
fraudulent conveyance and bulk transfer laws, and shall raise no presumption of fraud; (h)
financial statements and other related information furnished by Lessee shall be prepared in
accordance with generally accepted accounting principles and shall present Lessee’s financial
position as of the dates given on such statements; (i) Lessee shall furnish Lessor with its
certified financial statements, opinions of counsel, resolutions, and such other information and
documents as Lessor may reasonably request; (j) all Equipment and Facilities is leased for business
purposes only, and not for personal, family or household purposes; and (k) all Equipment and
Facilities is tangible personal property and shall not become a fixture or real property under
Lessee’s use thereof. Lessee shall be deemed to have reaffirmed the foregoing warranties each time
it executes any Fundamental Agreement.
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16. GENERAL INDEMNITY. Lessee shall indemnify, hold harmless, and, if so requested by Lessor,
defend Lessor against all claims (“Claims”) directly or indirectly arising out of or connected with
the Equipment and Facilities or any Fundamental Agreement. Claims refers to all losses,
liabilities, damages, penalties, expenses (including legal fees and costs), claims, actions, and
suits, whether based on a theory of strict liability of Lessor or otherwise, and includes, but is
not limited to, matters regarding: (a) the selection, manufacture, purchase, acceptance, rejection,
ownership, delivery, lease, possession, maintenance, use, condition, return or operation of the
Equipment and Facilities; (b) any latent defects or other defects in any Equipment and Facilities,
whether or not discoverable by Lessor or by Lessee; (c) any patent, trademark, or copyright
infringement; and (d) the condition of any Equipment and Facilities arising or existing during
Lessee’s use.
17. SURRENDER; EXTENSION OF TERM. Unless Lessee purchases the Equipment and Facilities or
renews the Term pursuant to the applicable Schedule, or acquires the Equipment and Facilities
pursuant to Section 12 hereof, Lessee shall, at its expense, deinstall, inspect and properly pack
the Equipment and Facilities, and return the Equipment and Facilities at the expiration of the
Term, free of all liens and rights of others, by delivering it on board such common carrier as
Lessor may specify with freight prepaid to any destination within the United States of America
specified by Lessor. The Equipment and Facilities shall be accompanied by an original copy of the
relocation inventory or other applicable form completed by the agent performing the deinstallation.
If Lessor so requests, Lessor and its agents shall have the right to enter upon any premises where
Equipment and Facilities may be located at a reasonable time to perform any of Lessee’s tasks noted
above in this Section 17, and Lessee shall reimburse Lessor for all costs and expenses Lessor
incurs in fulfilling such tasks. Lessee agrees that the Equipment and Facilities, when returned to
Lessor, shall be in the same condition as when delivered to Lessee, reasonable wear and tear
excepted, and certified as being eligible for the manufacturer’s generally available maintenance
contract at then prevailing rates, without Lessor incurring any expense to repair, rehabilitate or
certify such Equipment and Facilities (Lessee shall be liable for all costs and expenses Lessor
incurs to place the Equipment and Facilities in such condition). If requested by Lessor, Lessee, at
its expense, shall store the Equipment and Facilities on its premises for a reasonable period, not
to exceed ten (10) business days during which period the Equipment and Facilities shall be subject
to all of the terms and conditions hereof, except for the obligation to make Rental Payments. In
all instances where Lessee is returning Equipment and Facilities to Lessor, Lessee shall give
Lessor written notice thereof in accordance with the terms of the applicable Schedule. If Lessee
fails to provide the aforementioned notice or return the Equipment and Facilities to Lessor in the
time and manner provided above, the Term shall be extended in accordance with the terms of the
applicable Schedule. If any Schedule is extended pursuant to the preceding sentence, Lessee shall
continue to pay the higher of the periodic Rental Payments in effect prior to the expiration of the
then existing term of the applicable Schedule (whether it be the Initial Term or any Renewal Term)
or such other periodic rental payment amount as is specified for such extension period in the
Schedule, and all other provisions of this Agreement shall continue to apply.
18. EVENTS OF DEFAULT. Any of the following shall constitute an Event of Default under this
Agreement and all Schedules: (a) Lessee fails to pay any Rental Payment or any other
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amount payable to Lessor hereunder within ten (10) days after its due date; or (b) Lessee fails to
perform or observe any other representation, warranty, covenant, condition or agreement to be
performed or observed by Lessee hereunder or in any other agreement with Lessor, or in any
agreement with any other person that in Lessor’s sole opinion is a material agreement, and Lessee
fails to cure any such breach within ten (10) days after notice thereof; or (c) any representation
or warranty made by Lessee hereunder, or in any other instrument provided to Lessor by Lessee,
proves to be incorrect in any material respect when made; or (d) Lessee makes an assignment for the
benefit of creditors, whether voluntary or involuntary; or (e) a proceeding under any bankruptcy,
reorganization, arrangement of debts, insolvency or receivership law is filed by or against Lessee
or Lessee takes any action to authorize any of the foregoing matters; or (f) Lessee becomes
insolvent or fails generally to pay its debts as they become due, the Equipment and Facilities are
levied against, seized or attached, or Lessee seeks to effectuate a bulk sale of Lessee’s inventory
or assets; or (g) Lessee voluntarily or involuntarily dissolves or is dissolved, or terminates or
is terminated; or (h) any guarantor under this Agreement is the subject of an event listed in
clauses (b) through (g) above; or (i) any letter of credit required pursuant to any Schedule is
breached, canceled, terminated or not renewed during the Term of any such Schedule.
19. REMEDIES. If an Event of Default occurs, Lessor may, in its sole discretion, exercise
one or more of the following remedies: (a) terminate this Agreement or any or all Schedules; or (b)
take possession of, disable or render unusable, any Equipment and Facilities wherever the Equipment
and Facilities may be located, without demand or notice, without any court order or other process
of law and without liability to Lessee for any damages occasioned by such action, and no such
action shall constitute a termination of any Schedule; or (c) require Lessee to deliver the
Equipment and Facilities at a location designated by Lessor; or (d) declare the Lessor’s Return (as
defined in Section 12 hereof and calculated by Lessor as of the date of the Event of Default) for
each applicable Schedule due and payable as liquidated damages for loss of a bargain and not as a
penalty and in lieu of any further Rental Payments under the applicable Schedule; or (e) proceed by
court action to enforce performance by Lessee of any Schedule and/or to recover all damages and
expenses incurred by Lessor by reason of any Event of Default; or (f) terminate any other agreement
that Lessor may have with Lessee; or (g) exercise any rights available to Lessor under the Uniform
Computer Information Transactions Act (h) exercise any other right or remedy available to Lessor at
law or in equity. Also, Lessee shall pay Lessor all costs and expenses (including legal fees and
costs and fees of collection agencies) incurred by Lessor in enforcing any of the terms, conditions
or provisions of this Agreement. Upon repossession or surrender of any Equipment and Facilities ,
Lessor shall lease, sell or otherwise dispose of the Equipment and Facilities in a commercially
reasonable manner, with or without notice and at public or private sale, and apply the net proceeds
thereof (after deducting all expenses, including legal fees and costs, incurred in connection
therewith) to the amounts owed to Lessor hereunder; provided,
however, that Lessee shall
remain liable to Lessor for any deficiency that remains after any sale or lease of such Equipment
and Facilities. Lessee agrees that with respect to any notice of a sale required by law to be given
ten (10) days’ notice shall constitute reasonable notice. These remedies are cumulative of every
other right or remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise, and may be enforced concurrently therewith or from time to time.
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20. LESSOR’S PERFORMANCE OF LESSEE’S OBLIGATIONS. If Lessee fails to perform any of its
obligations hereunder, Lessor may perform any act or make any payment that Lessor deems reasonably
necessary for the maintenance and preservation of the Equipment and Facilities and Lessor’s
interests therein; provided, however, that the performance of any act or payment by Lessor
shall not be deemed a waiver of, or release Lessee from, the obligation at issue. All sums so paid
by Lessor, together with expenses, including legal fees and costs, incurred by Lessor in connection
therewith, shall be paid to Lessor by Lessee immediately upon demand.
21. FINANCING OF ADDITIONS. If, under any Schedule, Lessee intends to make any addition to the
Equipment and Facilities, Lessee may, in writing, request Lessor to finance the costs of such
addition. Lessee shall provide Lessor with the terms under which it hopes to obtain the financing,
and upon receiving such a request Lessor shall determine, in its sole discretion, whether to
provide such financing. Lessor is under no obligation to make or finance additions to the Equipment
and Facilities.
22. ASSIGNMENT BY LESSOR. Lessor shall have the unqualified right to assign, pledge, transfer,
mortgage or otherwise convey any of its interests hereunder or in any Schedule or any Equipment and
Facilities, in whole or in part, without notice to, or consent of, Lessee. If any Schedule is
assigned, Lessee shall: (a) unless otherwise specified by the Lessor and the assignee specified by
Lessor (the “Assignee”), pay all amounts due under the applicable Schedule to such Assignee,
notwithstanding any defense, setoff or counterclaim whatsoever that Lessee may have against Lessor
or Assignee; (b) not permit the applicable Schedule to be amended or the terms thereof waived
without the prior written consent of the Assignee; (c) not require the Assignee to perform any
obligations of Lessor, other than those that are expressly assumed in writing by such Assignee; and
(d) execute such acknowledgments thereto as may be requested by Lessor. It is further agreed that:
(x) each assignee shall be entitled to all of Lessor’s rights, powers and privileges under the
applicable Schedule, to the extent assigned; (y) any Assignee may reassign its rights and interest
under the applicable Schedule with the same force and effect as the assignment described herein;
and (z) any payments received by the Assignee from Lessee with respect to the assigned portion of
the Schedule shall, to the extent thereof, discharge the obligations of Lessee to Lessor with
respect to the assigned portion of the Schedule. Lessee acknowledges that any assignment or
transfer by Lessor or any assignee shall not materially change Lessee’s obligations under the
assigned schedule.
23. ASSIGNMENT OR SUBLEASE BY LESSEE. Without Lessor’s prior written consent, Lessee shall not
assign this Agreement or any Schedule or assign its rights in or sublet the Equipment and
Facilities or any interest therein and any such assignment or sublease without Lessor’s consent
shall be void; provided, however, that Lessee may sublease or assign a Schedule to an affiliate or
a wholly-owned subsidiary of Lessee if: (a) Lessee and such sublessee or assignee execute and
deliver to Lessor a writing (to be provided by Lessor) whereby the sublessee or assignee agrees to
assume joint and several liability with Lessee for the full and prompt payment, observance and
performance when due of all of the obligations of the Lessee under such Schedule; and (b) Lessor
consents to such sublease or assignment, which consent shall not be unreasonably withheld. In no
event, however, shall any such sublease or assignment discharge or diminish any of Lessee’s
obligations to Lessor under such Schedule, nor shall Lessee move or relocate any of the
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Equipment and Facilities, in whole or in part, without Lessor’s prior written consent, which
consent may be granted or withheld in Lessor’s sole discretion.
24. SURVIVAL; QUIET ENJOYMENT. All representations, warranties and covenants made by Lessee
hereunder shall survive the termination of this Agreement and shall remain in full force and
effect. All of Lessor’s rights, privileges, and indemnities, to the extent they are fairly
attributable to events or conditions occurring or existing on or prior to the termination of this
Agreement, shall survive such termination and be enforceable by Lessor and any successors and
assigns. So long as no Event of Default exists, and no event has occurred and is continuing that
with notice or the lapse of time or both would constitute an Event of Default, neither Lessor nor
any Assignee will interfere with Lessee’s quiet enjoyment of the Equipment and Facilities.
25. FILING FEES; FURTHER ASSURANCES; NOTICES. Lessee will promptly reimburse Lessor for any
filing or recordation fees or expenses (including lien search fees, legal fees and costs) incurred
by Lessor in perfecting or protecting its interests in the Equipment and Facilities and under this
Agreement. Lessee shall promptly execute and deliver to Lessor such documents and take such further
action as Lessor may from time to time reasonably request in order to carry out the intent and
purpose of this Agreement and to protect the rights and remedies of Lessor created or intended to
be created hereunder. All notices under this Agreement shall be sent to the respective party at its
address set forth on the front page of this Agreement or on the applicable Schedule or at such
other address as the parties may provide to each other in writing from time to time. Any such
notice mailed to said address shall be effective when deposited in the United States mail, duly
addressed and with first-class postage prepaid.
26. WAIVER OF JURY TRIAL; SUCCESSORS. Lessee and Lessor each irrevocably waive all right to
trial by jury in any lawsuit, proceeding, counterclaim or any other litigation or proceeding upon,
arising out of, or related to, this Agreement, any other fundamental agreement, or the dealings or
relationship between or among Lessor, Lessee, Seller or any other person. This Agreement and all
Schedules inure to the benefit of and are binding upon the permitted successors or assigns of
Lessor and Lessee.
27. NO
WAIVER; LESSOR APPROVAL. Any failure of Lessor to require strict performance by Lessee,
or any written waiver by Lessor of any provision hereof, shall not constitute consent or waiver of
any other breach of the same or any other provision hereof. Neither this Agreement nor any other
Fundamental Agreement shall be binding upon Lessor unless and until executed by Lessor.
28. CAPTIONS; COUNTERPARTS; LESSOR’S AFFILIATES. The captions contained in this Agreement are
for convenience only and shall not affect the interpretation of this Agreement. Only one
counterpart of the Schedule shall be marked “Original” (the “Original”), and all other counterparts
thereof shall be marked as, and shall be, duplicates. To the extent that any Schedule constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in effect in any applicable
jurisdiction), no security interest in such Schedule may be created through the transfer or
possession of any counterpart other than the Original. Lessee understands and agrees that MetroPCS
Wireless, Inc. or any affiliate or subsidiary thereof, may, as Lessor, execute Schedules under this
Agreement, in which event the terms and conditions of the applicable
10
Schedule and this Agreement as it relates to the Lessor under such Schedule shall be binding upon
and shall inure to the benefit of such entity executing such Schedule as Lessor, as well as any
successors or assigns of such entity.
29. CHOICE OF LAW; INTEGRATION; ENTIRE AGREEMENT. Each lease under this Agreement shall
be governed by the internal laws (as opposed to conflicts of law provisions) of the state of
Delaware. If any provision of this Agreement or such Schedule shall be prohibited by or invalid
under that law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or such Schedule. Lessor and Lessee consent to the jurisdiction of any local, state
or Federal court located within the State, and waive any objection relating to improper venue or
forum non conveniens to the conduct of any proceeding in any such court. This Agreement and all
other Fundamental Agreements executed by both Lessor and Lessee constitute the entire agreement
between Lessor and Lessee relating to the leasing of the Equipment and Facilities, and supersede
all prior agreements relating thereto, whether written or oral, and may not be amended or modified
except in a writing signed by the parties hereto.
[signature page to follow]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the 17th day
of May, 2006.
| ROYAL STREET | METROPCS WIRELESS, INC. | |||||||||
| COMMUNICATIONS, LLC | (Lessor) | |||||||||
| (Lessee) | ||||||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
| (Lessee Authorized Signature) | (Lessor Authorized Signature) | |||||||||
| Xxxxxx X. Xxxxxx | Xxxxx X. Xxxxxxxx | |||||||||
(Name)
|
(Name) | |||||||||
| Chairman and CEO | President and CEO | |||||||||
(Title)
|
(Title) | |||||||||
| 5/17/06 | 5/17/06 | |||||||||
(Date)
|
(Date) | |||||||||
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