Exhibit 10.8
ADDENDUM TO
AMENDMENT NO. 2 TO DISTRIBUTION
AND FULFILLMENT SERVICES AGREEMENT
THIS ADDENDUM (this "Addendum") to Amendment No. 2 ("Second Amendment"), is
effective as of July 2, 2002, by and between Cricket Communications, Inc.
("Cricket"), successor in interest to Chase Telecommunications, Inc., a Delaware
corporation, and CellStar, Ltd. ("CellStar"), a Texas limited partnership.
WITNESSETH:
WHEREAS, Cricket and CellStar are parties to that certain Distribution and
Fulfillment Services Agreement, effective as of December 22, 1999, as amended by
Amendment No. 1, effective as of September 21, 2001, and as extended by letter
dated January 15, 2002 (collectively, the "Agreement"), as further amended by
the Second Amendment;
WHEREAS, Cricket has entered into a certain Vendor Agreement, as may be
amended from time to time ("Vendor Agreement") with Wal-Mart Stores, Inc.
("Wal-Mart") which Vendor Agreement sets forth various terms and conditions
regarding the shipment of and payment for Product shipped by CellStar on behalf
and for the benefit of Cricket;
WHEREAS, the parties desire to modify the Second Amendment to address
certain specific requirements contained in the Vendor Agreement for which
CellStar shall invoice or expect reimbursement from Cricket; and
WHEREAS, all capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Agreement or Second Addendum, as appropriate.
NOW, THEREFORE, in consideration of mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Cricket agrees to pay, reimburse and make whole CellStar for any and
all "new store" or "club discounts" or similar deductions and discounts taken by
Wal-Mart in connection with the opening of any new Wal-Mart store or in
connection with any other special promotion undertaken by Wal-Mart in which
Wal-Mart claims a discount as permitted by the Vendor Agreement.
2. Regardless of any term, condition or provision in the Vendor
Agreement or any purchase order or other agreement, document or instrument
issued or executed by Wal-Mart in connection with any agreement between Wal-Mart
and Cricket, Cricket shall indemnify and hold CellStar harmless from and against
any and all loss, cost, expense, liability, fine, fee, judgment, assessment,
penalty or damages (including reasonable attorneys' and experts' costs and fees)
(collectively, the "Charges") arising out of or in connection with any claim,
demand, suit or proceeding against CellStar involving (i) any Product alleged to
have violated or infringed upon the intellectual property rights of any third
party, (ii) any alleged personal injury caused by any of the Products, (iii) any
failure of any Product to comply with any of the express or implied warranties
contained in the Vendor Agreement or any Wal-Mart purchase order, or (iv) any
failure by any Product to comply with applicable local, state or federal laws,
rules, codes or regulations, provided, however, that Cricket shall not be liable
under this Section for any Charges that result from or are caused by CellStar's
breach of contract, negligence or intentional misconduct, for which CellStar
shall indemnify, defend and hold Cricket harmless. Such indemnification
obligation shall
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survive the termination or expiration of the Vendor Agreement or this Addendum
for a period of one (1) year.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
by and through their duly authorized representatives as of the effective date
first set forth above.
CELLSTAR, LTD. CRICKET COMMUNICATIONS, INC.
By: National Auto Center, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxx Xxxxxxxxx By: /s/ Xxx XxXxxxx
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Name: Xxxxxx Xxxx Xxxxxxxxx Name: Xxx XxXxxxx
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Title: Senior V.P. Title: V.P. Sales and Marketing
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