EXHIBIT 10.21.1
AMENDMENT NO. 1
TO
PCS CDMA PRODUCT SUPPLY CONTRACT
BETWEEN
MOTOROLA, INC.
AND
HORIZON PERSONAL COMMUNICATIONS, INC.
This Amendment No 1 (this "Amendment") is to the PCS CDMA Product Supply
Contract dated as of December 8, 1999, between Horizon Personal Communications,
Inc. ("Purchaser"), and Motorola, Inc. ("Vendor"), Contract No. 11097-AA-001
(the "Supply Contract"). This Amendment is entered into by Purchaser and Vendor
as of this 22nd day of September, 2000 ("Amendment Effective Date"). Capitalized
terms not defined herein shall have the meanings assigned to them in the Supply
Contract.
RECITALS
Whereas, Purchaser has entered into a certain Sprint PCS management agreement
among SprintCom, Inc., Wirelessco, L.P. and Sprint Spectrum L.P. in connection
with the sixteen (16) Basic Trading Areas ("BTAs") or partial BTAs described in
Exhibit A attached hereto, located in the State of Pennsylvania (and overlapping
or adjacent areas in New York, New Jersey and Ohio) (the "Region"), and
Purchaser plans to construct CDMA systems in the Region;
Whereas, Purchaser estimates that it will construct four hundred fifteen (415)
cell sites and associated Centralized Base Site Controllers ("CBSCs") and
associated MSC switching equipment in the Pennsylvania Markets (defined below)
and has already given to Vendor purchase orders ("POs") for one hundred twenty
four (124) SC4812ET base stations for the Region;
Whereas, Motorola Credit Corporation ("MCC") sent Purchaser a commitment letter
dated July 27, 2000 (as subsequently amended or modified, the "Commitment
Letter"), describing the terms and conditions of MCC's participation in a credit
facility (the "Credit Facility") with, inter alia, First Union Securities, Inc.
("Agent");
Whereas, the execution of this Amendment is a condition precedent to MCC's
participation in the Credit Facility; and
Whereas, the parties wish to amend the Supply Contract pursuant to the terms and
conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto agree
as follows:
1. This Amendment pertains to cell sites located in the geographical area
consisting of the State of Pennsylvania plus any portions of the Region
that extend outside of the State of Pennsylvania ("Pennsylvania
Markets").
Motorola/Horizon PC 09-12-00
Amendment 1 to Xxxxxxxx 00000-XX-000 XXXXXXXX, INC., PROPRIETARY
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2. Purchaser shall provide Vendor POs for the base stations and the first CBSC
for the Pennsylvania Markets by September 20, 2000.
3. Purchaser shall replace non-Motorola base stations in the Pennsylvania
Markets with Motorola base stations at the earliest commercially reasonable
time consistent with maintaining service to Purchaser's customers. The
replacement Motorola base stations shall be priced pursuant to Section 2.35
of Attachment I to the Supply Contract. Alternatively, if Purchaser chooses
to re-sell the non-Motorola base stations itself, the replacement Motorola
base stations shall be pursuant to regular Supply Contract pricing.
4. Purchaser agrees to purchase or procure from Vendor all base stations,
CBSCs, and future MSC switches used in cell sites in the Pennsylvania
Markets during the Term of the Supply Contract.
5. MCC's participation in the Credit Facility ("MCC's Participation") is
contingent on and is part of the consideration for Purchaser's agreement
that the financing to be provided under the Credit Facility would be used
in part to support Vendor's sales to Purchaser as set forth above, and not
to support in any way the sales of other manufacturers' base stations or
CBSCs to Purchaser. MCC's Participation may be transferred or assigned,
directly or indirectly, in whole or in part, to one or more transferees or
assignees. Therefore, at any time when there is an outstanding balance owed
under the Credit Facility to MCC or to any direct or indirect transferee or
assignee of MCC's Participation, if either (i) Purchaser or Bright Personal
Communications Services, LLC ("Bright PCS"), or Purchaser and Bright PCS in
combination, shall replace ten percent (10%) or more of the total number of
base stations sold by Vendor to Purchaser and/or Bright PCS with non-Vendor
(i.e., non-Motorola) base stations; or (ii) Purchaser materially breaches
the Supply Contract (as amended by this Amendment) and fails to cure such
breach to Vendor's reasonable satisfaction within ten (10) days of Vendor's
delivery of written notice of such breach, then Purchaser shall cause
another entity acceptable to Agent to purchase in full MCC's Participation,
and to execute any and all documentation in connection therewith, in form
and substance reasonably satisfactory to MCC and Agent.
6. Nothing contained in this Amendment shall be construed, expressly or
implicitly, as obligating Vendor, MCC, or any other affiliate of Vendor to
provide financing for Purchaser. Any financing offered by Vendor, MCC, or
any other affiliate of Vendor shall be evidenced by separate documentation.
Notwithstanding the foregoing, Vendor agrees that Purchaser's agreements
contained in this Amendment are conditioned upon MCC's participation in the
Credit Facility.
7. Each party represents and warrants that (i) it has obtained all necessary
approvals, consents and authorizations of third parties and governmental
authorities to enter into this Amendment and to perform and carry out its
obligations hereunder; (ii) the persons executing this Amendment on its
behalf have express authority to do so, and, in so doing, to bind the party
thereto; and (iii) this Amendment is a valid and binding obligation of such
party, enforceable in accordance with its terms.
8. Except as specifically stated in this Amendment, the Supply Contract is in
all other respects ratified, confirmed and continues in full force and
effect.
[SIGNATURE PAGE FOLLOWS]
Motorola/Horizon PC 09-12-00
Amendment 1 to Xxxxxxxx 00000-XX-000 XXXXXXXX, INC., PROPRIETARY
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their respective duly authorized representative as of the Effective Date first
written above.
MOTOROLA, INC. HORIZON PERSONAL
CELLULAR INFRASTRUCTURE GROUP COMMUNICATIONS, INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
-------------------------------------- ------------------------------------
Signature Signature
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
-------------------------------------- ------------------------------------
Printed/Typed Name Printed/Typed Name
Senior Vice President and General
Manager, North America Chief Financial Officer
-------------------------------------- ------------------------------------
Title Title
Motorola/Horizon PC 09-12-00
Amendment 1 to Xxxxxxxx 00000-XX-000 XXXXXXXX, INC., PROPRIETARY
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EXHIBIT A
TO
AMENDMENT NO. 1
TO THE
PCS CDMA PRODUCT SUPPLY CONTRACT
BETWEEN
MOTOROLA, INC.
AND
HORIZON PERSONAL COMMUNICATIONS, INC.
Purchaser has entered into a management agreement with the FCC license holder
for the following sixteen (16) Basic Trading Areas ("BTAs") or partial BTAs:
000 Xxx Xxxx - Xxxxxxxx XX 000 Xxxxx Xxxxxxx XX
000 Xxxxx XX - Bradford PA 475 Williamsport PA
117 Xxxxxx - Xxxxxxxxxx PA 437 Sunbury - Shamokin PA
00 Xxxxxxxxx XX 000 Xxxxxxxxxx XX
131 Erie PA 000 Xxxxxxxx - Xxxxxx Xxxxx - Xxxxxxxx XX
000 Xxxxxxxxx XX 000 Xxxxxxxxxxx XX
416 Sharon PA 312 New York NY (partial)
000 Xxxxxxxxx XX - Xxxxxx XX - Dunkirk NY 10 Allentown - Bethlehem - Easton PA (partial)
Motorola/Horizon PC 09-12-00
Amendment 1 to Xxxxxxxx 00000-XX-000 XXXXXXXX, INC., PROPRIETARY
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