EXHIBIT 10.1
AMENDMENT NO. 2
TO
AMENDED AND RESTATED
SYSTEM EQUIPMENT PURCHASE AGREEMENT
BETWEEN
CRICKET COMMUNICATIONS, INC.
AND
NORTEL NETWORKS INC.
This Amendment No. 2 (this "Amendment") is made effective as of December 22,
2004, by and between CRICKET COMMUNICATIONS, INC., a Delaware corporation (the
"Owner"), and NORTEL NETWORKS INC., a Delaware corporation (the "Vendor").
WHEREAS, Owner and Vendor entered into an Amended and Restated System Equipment
Purchase Agreement effective December 23, 2002, for the sale, licensing, and
purchase of Vendor's Products and Services, as amended by Amendment No. 1, dated
effective February 7, 2003 (together, the "Contract"); and,
WHEREAS, Owner and Vendor now wish to, among other things, add a volume
commitment and certain Equipment lists to the Contract.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, Owner and Vendor hereby agree to amend the Contract as
follows:
1. Unless otherwise defined, capitalized terms herein shall have the same
meaning as in the Contract.
2. "Annual License Fees", as specified in Exhibit A02, Section 1.2, and
elsewhere in the Contract, shall be renamed "Annual Software Maintenance
Fees."
3. Add a new Section 3.7 (Amendment No. 2 Volume Commitment) to the Contract
as follows:
"3.7 Amendment No. 2 Volume Commitment. (a) Between the effective date of
this Amendment No. 2 and prior to [ * * * ], Owner agrees to
purchase/license, make full payment for and accept delivery of Vendor
Products in a net price amount (i.e., the price excluding all discounts,
credits, other incentives, freight, shipping, handling and insurance
charges) totaling not less than [ * * * ] ("Amendment No. 2 Volume
Commitment"). In the event Owner fails to achieve such Amendment No. 2
Volume Commitment prior to [ * * * ], Vendor may invoice Owner in an
amount equal to [ * * * ] of the amount of the Amendment No. 2 Volume
Commitment that remains unfulfilled. Such invoice shall be due and payable
thirty (30) days from date of invoice. The parties hereby agree and
acknowledge that any payments made by Owner under the Contract related to
any of the following will not count towards Owner's satisfaction of the
Amendment No. 2 Volume Commitment: (i) Services, (ii) annual service and
support plans, or (iii) Products and/or Services set forth in Exhibit G
(Fresno Equipment List) of the Contract." Notwithstanding these items, all
payments by Owner towards (i) Products, (ii) Product credits as described
in Section 3.7(b) below, and (iii) Annual Software Maintenance Fees are
expressly included in the satisfaction of the Amendment No. 2 Volume
Commitment.
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(b) [* * *].
4. Section 26.29 of the Contract shall be hereby amended to include the new
Section 3.7 set forth above as a provision that shall continue in full
force and effect notwithstanding any expiration or termination of the
Contract.
5. The following Exhibits, attached hereto as Attachments 1 through 3, shall
be added to the Contract and incorporated therein:
Exhibit G (Fresno Equipment List) (Attachment 1);
Exhibit H (Visalia, Modesto and Merced Equipment List) (Attachment 2);
Exhibit I (Market Requirement Specifications) (Attachment 3).
6. Except as specifically modified by Amendment No. 2, the Contract in all
other respects shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be signed by
their duly authorized representatives effective as of the date first set forth
above.
CRICKET COMMUNICATIONS, INC. NORTEL NETWORKS INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
(Type/Print) (Type/Print)
Title: Exec. V.P./COO Title: Vice President
Date: 12/28/04 Date: 12/31/04
Tax ID: 00-0000000
Address: 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000
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ATTACHMENT 1 TO AMENDMENT NO. 2 OF THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
EXHIBIT G
FRESNO EQUIPMENT LIST
In consideration for Owner's Amendment No. 2 Volume Commitment, the net price
(i.e., the price excluding all discounts, credits, other incentives, freight,
shipping, handling and insurance charges) for the Products and Services
described in the attached quote number B2004121729R3 shall be a cumulative total
of [ * * * ]. Services are included in the net price. Vendor may substitute
Products of more recent design or modify the specifications relating to the
Products listed below as long as such Products offer consistent Form, Fit and
Function with the listed Products. Vendor reserves the right to discontinue its
manufacture of the Products as long as such modifications do not conflict with
the Contract.
[Nineteen Pages of Proprietary and Technical Information Deleted Pursuant to
Confidential Treatment Request]
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ATTACHMENT 2 TO AMENDMENT NO. 2 OF THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
EXHIBIT H
VISALIA, MODESTO AND MERCED EQUIPMENT LIST
In consideration for Owner's Amendment No. 2 Volume Commitment and Owner's
purchase of the Equipment set forth in Exhibit G (Fresno Equipment List), the
Products and Services described in the attached quote number B200412730R2-1 and
B200412730R2-2 are provided to Owner [ * * * ]. Vendor may substitute Products
of more recent design or modify the specifications relating to the Products
listed below as long as such Products offer consistent Form, Fit and Function
with the listed Products. Vendor reserves the right to discontinue its
manufacture of the Products as long as such modifications do not conflict with
the Contract.
[Thirteen Pages of Proprietary and Technical Information Deleted Pursuant to
Confidential Treatment Request]
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ATTACHMENT 3 TO AMENDMENT NO. 2 OF THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
EXHIBIT I
MARKET REQUIREMENT SPECIFICATIONS
The parties hereby agree and acknowledge that the Products provided to Owner
under Exhibits G and H of the Contract (attached to Amendment No. 2 as
Attachments 1 and 2) have been engineered in accordance with Owner's market
requirement specifications as set forth in this Exhibit I. Any additional
Products and associated Services required by Owner in such markets shall be at
Owner's cost.
[One Page of Proprietary and Technical Information Deleted Pursuant to
Confidential Treatment Request]
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