Exhibit 10.4.6
AMENDMENT NO. 5
TO
SUPPLY AGREEMENT
BETWEEN
XXXXXX COMMUNICATIONS CORPORATION
AND
NORTEL NETWORKS INC.
Made as of this 3rd day of November 1999 ("Effective Date No. 5"), by and
between Xxxxxx Communications Corporation, an Oklahoma corporation with
offices at 00000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxx
00000 (hereinafter referred to as "Buyer") and Nortel Networks Inc.
(successor in interest to Northern Telecom Inc.), a Delaware corporation with
offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx 00000 (hereinafter
referred to as "Nortel" or "Seller").
WHEREAS, Buyer and Seller entered into a Supply Agreement dated as of
December 6, 1995, as amended (the "Agreement"); and
WHEREAS, Buyer and Seller now wish to amend the Agreement to include,
among other things, an extended Term, an increased commitment to purchase by
Buyer and new discounts applicable to future Equipment purchases, all as
further described herein:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Buyer and Seller agree to amend the Agreement as follows:
1. Unless otherwise defined, capitalized terms herein shall have the same
meaning as in the Agreement.
2. Amend Article 1, Section 1.21 "EXTENDED TERM" (as amended by
Amendment No. 3) by deleting the words "ending four (4) years and
five (5) months thereafter" and replacing them with "ending December 31,
2002."
3. Amend Article 4 "PRICE" (as amended by Amendment No. 3) by deleting
the last sentence of Section 4.1 in its entirety and replacing it with
the following:
"Buyer understands that it has a firm obligation to purchase/license
no less than $120 million net Price (i.e., Price inclusive of applicable
discounts, but exclusive
of sales tax) of Equipment and/or Software from Seller during the
Extended Term ('Commitment')."
4. Amend Article 7 "WARRANTIES, REMEDIES AND LIMITATION OF WARRANTIES
AND REMEDIES AND DISCLAIMERS OF WARRANTIES AND LIABILITY" by adding a
new Section 7.6 as follows:
"7.6 Beginning upon Effective Date No. 5 through December 31, 2002,
Seller shall provide its remote TAS services to Buyer at no charge in
accordance with Section 7.3.1 and Sections 1 through 4 of Annex 5."
5. Amend Annex 1A "EXTENDED TERM EQUIPMENT AND SERVICES PRICING"
(Schedule A to Amendment No. 2, as amended in Amendment No. 4) as
follows:
(a) By deleting the word ($6.00) and replacing it with ($5.00) in
Section 4.1(a); and,
(b) By deleting Section 5.2.1 in its entirety and replacing it with
the following:
"5.2.1 Following Buyer's purchase and effective on the date of
final payment to Seller of the total Price for the Extended
Term Additional Purchase set forth in Section 2.0 of Annex
1A and the CDMA Equipment Purchase set forth in Section 6.0
of Annex 1A, the following discounts and firm, fixed Prices
shall replace the discounts and firm, fixed Prices set
forth in Section 5.2 above:
(a) The following new discounts shall apply:
Description Discount off Seller's then-current List Price
----------- ---------------------------------------------
Switch/TDMA Hardware 56%
Cell Site Hardware 55%
(exclusive of radios/amplifiers)
BSC/BTS 40%
CDMA Software 40%
(b) Buyer may purchase TRU-III/SCLPA(s) or
TRU-II/SLPA(s) for the net Price per radio/amplifier
unit (i.e., Price per radio/amplifier unit inclusive
of discounts, but exclusive of sales tax) of $3,990.
With the exception of Purchase Orders for the Extended
Term Additional Purchase and the CDMA Equipment Purchase,
and conditioned upon the completion of payment of the
Extended Term Additional Purchase and the CDMA Equipment
Purchase, the
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discounts set forth in (a) and (b) above shall be
retroactive to all Purchase Orders received by Seller after
September 1, 1999 ("Applicable Purchase Orders"). For
Applicable Purchase Orders received by Seller between
September 1, 1999 and Effective Date No. 5, Seller shall
provide product credits to Buyer equal to the difference
between the Prices set forth in such Applicable Purchase
Orders and the Prices at the new discount levels. Buyer
may apply product credits towards purchases of additional
Equipment hereunder. Any unused product credits will be
forfeited upon the termination or expiration of this
Agreement.
(c) The exclusions described in Section 5.2 (as
previously amended in Amendments Xx. 0 xxx 0),
xxx-xxxxx (x), (xx) and (iii) above shall continue to
apply; and
(d) Add a new Section 7.0 (Additional Incentives), as
set forth in Schedule A, attached and incorporated
herein.
6. Add a new Annex 8B (EXTENDED TERM RF OPTIMIZATION SERVICES STATEMENT
OF WORK) as set forth in Schedule B, attached hereto and incorporated
herein.
7. Add the appropriate Annex listings for new Annex 8B to the Table of
Contents and Section 23 (ANNEXES) respectively.
8. Except as specifically modified by this Amendment No. 5, the
Agreement in all other respects shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 5 to be
signed by their duly authorized representatives effective as of the date
first set forth above.
XXXXXX COMMUNICATIONS INC. NORTEL NETWORKS INC.
By: By:
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Type or Print Name Type or Print Name
Title: Title:
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Date: Date:
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