EXHIBIT 10.38
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[*] IMPORTANT NOTE: Certain material, indicated by four asterisks ("****"), has
been omitted from this document pursuant to a request for confidential
treatment. The omitted material has been filed separately with the Securities
and Exchange Commission.
AMENDMENT NO. 2
TO
1900 CDMA ADDITIONAL AFFILIATE SUPPLY AGREEMENT
BETWEEN
iPCS WIRELESS, INC.
AND
iPCS EQUIPMENT, INC.
AND
NORTEL NETWORKS INC.
This Amendment is made effective this 9th day of February, 2001, by and between
iPCS Wireless, Inc. and iPCS Equipment, Inc. (hereinafter referred to as
"Buyer"), both being Delaware corporations with offices located at 0000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 and Nortel Networks Inc., a
Delaware corporation with offices at 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxx
00000-0000 (hereinafter referred to as "Seller").
WHEREAS, iPCS Wireless, Inc., as successor in interest to Illinois PCS, LLC, and
Seller entered into a Sprint Additional Affiliate Supply Agreement on May 24,
1999 ("Agreement"); and,
WHEREAS, Buyer wishes to terminate the Agreement, and Seller is in agreement to
terminate the Agreement, based upon certain terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Seller agree to amend the Agreement as follows:
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1. Buyer and Seller agree to terminate this Agreement effective February 9,
2001 and hereby amend this Agreement prior to its termination to include
the following terms and conditions, that will survive the termination of
the Agreement:
1.1 Buyer is hereby granted a purchase credit in the amount of $****
("Purchase Credit") to be used toward the purchase and licensing of
Equipment and Services pursuant to an accepted Purchase Order under
this Agreement only and contingent upon all of the following
conditions: (1) Buyer shall issue its final Purchase Order under the
Agreement on or before February 9, 2001 to which Purchase Order such
Purchase Credit shall be applied. Such final Purchase Order shall be
in the net amount of $885,354.00 (Eight Hundred Eighty Five Thousand,
Three Hundred Fifty Four Dollars), after application of the Purchase
Credit, and will thereby satisfy Buyer's Volume Commitment. (2) Buyer
agrees that any new business expansion, as described herein, in the
**** and **** Sprint PCS markets, shall be awarded to Seller under
separate contract. Buyer represents that preliminary analysis
indicates the magnitude of this new expansion is approximately 40
additional BTSs and a small wireless switch and that the new expansion
will likely expand the switch capacity requirement to approximately
100 sites. Buyer agrees that it shall purchase the required wireless
networking systems and base stations from Seller for these markets. It
is understood this new expansion and the subsequent awarding of new
business to Seller is contingent upon Sprint PCS' awarding of the
markets to Buyer and Buyer's acceptance of these markets. (3) Buyer
further agrees that it shall issue a purchase order to
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
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Seller subsequent to termination of this Agreement, but no later
than February 12, 2001 in the net amount of $13,582,562.00 (Thirteen
Million, Five Hundred Eighty Two Thousand, Five Hundred Sixty Two
Dollars) for equipment and services to be shipped not later than
December 31, 2001. Such purchase order shall be issued under the
SprintCom Amended and Restated PCS CDMA Product Supply Contract dated
June 4, 1999 ("Sprint PCS Contract") as it relates to Affiliate
purchases, contingent upon Buyer being recognized by Sprint PCS as an
Additional Affiliate thereunder and shall be non-cancelable. Should
Buyer fail to fulfill any of the above three stated conditions, then
Buyer shall refund to Seller the entire $**** Purchase Credit
within thirty (30) days after receipt of Seller's written request
therefor.
1.2 Including the additional agreements or provisions provided in this
Amendment, Buyer acknowledges its obligations for receipt, acceptance,
and payment for all goods and services provided under this Agreement.
2. Except as specifically modified by this Amendment No. 2, the Agreement in
all other respects shall continue in full force and effect until its
termination effective as of February 9, 2001. Any provisions of the
Agreement, as amended, which by their nature extend beyond its termination
or by their sense and context are intended to survive termination, shall
remain in effect beyond such termination until fulfilled and shall apply to
either party's successors and/or permitted assigns. This Amendment shall
be binding on any successors or permitted assigns of Buyer.
(Next paragraph begins on next page)
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be signed by
their duly authorized representatives and effective as of the date first set
forth above.
iPCS WIRELESS, INC. NORTEL NETWORKS INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxx
----------------------------- -----------------
(Type/Print) (Type/Print)
Title: Senior VP & CTO Title: MAVP Nortel
---------------------------- ---------------------
Date: February 22, 2001 Date: February 28, 2001
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iPCS EQUIPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------
(Type/Print)
Title: Senior VP & CTO
----------------------------
Date: February 28, 2001
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