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EXHIBIT 10.46
AMENDMENT NO. 6
TO
PCS 1900 PROJECT AND SUPPLY AGREEMENT
BETWEEN
VOICESTREAM WIRELESS CORPORATION
AND
NORTEL NETWORKS INC.
This Agreement is made as of this 14th day of May, 1999 ("Effective Date No.
6"), by and between VoiceStream Wireless Corporation, a Washington corporation
with offices located at 0000 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000
("Buyer") and Nortel Networks Inc. (formerly Northern Telecom Inc.), a Delaware
corporation with offices located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx
00000 (hereinafter referred to as "Seller").
WHEREAS, Buyer's predecessor in interest, VoiceStream Wireless Corporation
(formerly known as Western PCS Corporation, a Delaware corporation ("WPCS")) and
Seller entered into a PCS 1900 Project and Supply Agreement dated June 30, 1995
(as heretofore amended by Amendments No. 1-5, as amended hereby and as hereafter
amended the "Supply Agreement"); and
WHEREAS, on April 9th, 1999 WPCS was merged with and into Buyer in order to
effect a reincorporation of WPCS in Washington State and, accordingly, Buyer
succeeded to all of WPCS's rights and obligations under the Supply Agreement;
and
WHEREAS, Buyer and Seller now wish to further amend the Supply Agreement by
adding additional terms and conditions associated with, among other things,
Buyer's acquisition of Seller's Equipment and Services for deployment in certain
new markets and expansions of existing markets and revising the discount
structure.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Seller agree to amend the Supply Agreement as follows:
1. (a) Amend the definition of the term "Buyer" so that it includes not
only VoiceStream Wireless Corporation, but also any entity in which VoiceStream
Wireless Corporation owns directly or indirectly more than fifty percent (50%)
of the equity or voting power.
(b) Amend Article 1, Section 1.1 "Add-on Equipment" by deleting it in
its entirety and replacing it with the following:
1.1 "Add-on Equipment" shall mean Equipment other than the
Equipment initially provided for Buyer's Network as set
forth in Section 1.1 through
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EXHIBIT 10.46
1.5 of Annex 1 (as amended) and the Equipment provided for
the Initial Build of New Markets.
(c) Amend Article 1, Section 1.12 "Initial Network" by deleting it in
its entirety and replacing it with the following:
1.12 "Initial Network" shall mean any market other than a New
Market.
(d) Amend Article 1, by adding the following new Section 1.20, and
renumbering the remaining Sections accordingly:
1.20 "New Market" shall mean any of the following markets: (i)
the San Antonio, Texas market, (ii) the Austin, Texas
market, (iii) the Chicago, Illinois market, (iv) the
Milwaukee, Wisconsin market, (v) the Dallas, Texas market,
(vi) any other U.S. market for which Buyer acquires, after
Effective Date No. 6, a license to operate, (vii) any U.S.
market for which Buyer has a license but for which as of
Effective Date No. 6, Buyer has not constructed a System
or (viii) expansions of existing markets into BTAs in
which Buyer is not operating as of Effective Date No. 6.
The foregoing markets are referred to herein collectively
as "New Markets". Buyer and Seller shall mutually agree
upon a Statement of Work/Project Schedule (Annex 2) and an
Initial Project Schedule (Annex 9) for each New Market,
with respect to which Buyer elects to order Equipment
and/or Services from Seller. Except as expressly set forth
in Section 5.9 (as amended by this Amendment No. 6), Buyer
shall not be required to order Equipment or Services for a
New Market from Seller.
2. Amend Article 1, Section 1.36 "Term" (as heretofore amended by Amendment
No. 4) by deleting the words ...*... and replacing them with the words ...*...
3. Amend Article 1, Section 1.37 "Warranty Period" by adding the following
new Subsections:
1.37.2.1 With respect to NSS Hardware (excluding OEM
Equipment) installed after Effective Date No. 6, a period of
...*... from the date of Commissioning.
1.37.3.1 With respect to Software installed after Effective
Date No. 6, a period of ...*... from the date of Installation of
the basic operating Software onto the Hardware, which ...*...
period shall commence with Installation of each new Software
release licensed for use by Buyer.
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EXHIBIT 10.46
1.37.4.1 With respect to Merchandise installed after
Effective Date No. 6, a period of ...*... from the shipment date
of such Merchandise.
4. Amend Article 5, Section 5.9 by deleting it and restating it in its
entirety as follows:
"Buyer understands that it has a firm obligation to purchase,
license and take delivery of no less than ...*... of Equipment
and Services (net of discounts and incentives but before credits
and before Handset Funds) from Seller during the Term of this
Supply Agreement (the "Commitment"). Such Commitment includes
Buyer's award to Seller of the "Initial Build" of the ...*...
markets. For the purposes of this Supply Agreement, Initial Build
shall mean the minimum configuration of NSS and BSS Equipment
required to support commercial launch by Buyer in a market.
If funding is made available by Seller to Xxxx Inlet Voice Stream
PCS L.L.C. ("CIVS") per a separate financing agreement with
substantially the same terms as specified in Exhibits A and B
attached hereto (the "CIVS Facilities"), this Supply Agreement
will be deemed amended to increase the Commitment in the
following manner:
(a) If CIVS acquires the Chicago BTA license and the
Dallas BTA license, by final grant from the FCC, or
earlier than final grant at Buyer's sole discretion, then
CIVS/Buyer will award the Initial Build of the Chicago and
Dallas markets to Seller and the increase in the
Commitment is equal to x, where x equals the amount
calculated by multiplying the Applicable Percentage times
...*.... In this case, the Applicable Percentage is
calculated as (i) the amount of funds made available by
Seller under the CIVS Facilities divided by (ii) ...*...;
or
(b) If CIVS does not acquire the Chicago BTA license,
but does acquire the Dallas BTA license, by final grant
from the FCC, or earlier than final grant at Buyer's sole
discretion, then CIVS will award the Initial Build of the
Dallas market to Seller and the increase in the Commitment
is equal to x, where x equals the amount calculated by
multiplying the Applicable Percentage times ...*.... In
this case, the Applicable Percentage is calculated as (i)
the amount of funds made available by Seller under the
CIVS Facilities divided by (ii) ...*....
(c) If CIVS does not acquire the Dallas BTA license,
but does acquire the Chicago BTA license, by final grant
from the FCC, or earlier than the final grant at Buyer's
sole discretion, then CIVS/Buyer will award the Initial
Build of the Chicago market to Seller and the increase in
the Commitment is equal to x, where x equals the amount
calculated by
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EXHIBIT 10.46
multiplying the Applicable Percentage times ...*.... In
this case, the Applicable Percentage is calculated as (i)
the amount of funds made available by Seller under the
CIVS Facilities divided by (ii) ...*....
(d) If CIVS acquires neither the Chicago nor the Dallas
BTA licenses, by final grant from the FCC, then CIVS will
award the Initial Build of another combination of licenses
for BTAs or groups of BTAs and the increase in the
Commitment is equal to x, where x equals the amount
calculated by multiplying the Applicable Percentage times
...*.... In this case, the Applicable Percentage is
calculated as (i) the amount of funds made available by
Seller under the CIVS Facilities divided by (ii) ...*....
Any such increased Commitment shall be contingent on the
provision of financing by Seller, the terms of which have been
substantively agreed on as set forth in the CIVS Facilities.
The parties agree that if CIVS/Buyer fails without cause to
satisfy the Commitment applicable under clauses (a), (b), (c) or
(d) above, then Seller shall not be obligated to extend any
additional credit under the CIVS Facilities over and above the
amount of financing that would have been available under the
above ratios had such Commitment been the amount CIVS/Buyer
purchased at the time of such failure.
5. Amend Article 5, by adding the following new Subsections 5.3 and 5.4 and
renumbering the remaining Sections accordingly:
5.3 With respect to payment for Equipment shipped to New
Markets for an Initial Build, Seller shall invoice Buyer or CIVS,
as applicable, in accordance with the following schedule:
5.3.1 ...*... of the Purchase Order Price shall be invoiced on
shipment of the Equipment; and
5.3.2 ...*... of the Purchase Order Price shall be invoiced on
the date of Final Acceptance.
5.4 With respect to payment for all Purchase Orders for
Equipment for the Initial Networks which are issued after
Effective Date No. 6 and for Purchase Orders for Equipment
shipped to New Markets which are issued after the Initial Build
of such New Market, Seller shall invoice Buyer ...*... of the
Purchase Order Price upon shipment of the Equipment.
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EXHIBIT 10.46
5.4.1 Payments due under Section 5.3 and this Section 5.4 shall
be paid to Seller within thirty (30) days following the date of
Seller's invoice therefor.
6. Amend Subsection 23.1 as follows:
(a) Amend Subsection 23.1.1 by inserting the words "or
indirectly" after the word "directly" in the first sentence.
(b) Add the following new Subsections 23.1.3 and 23.1.4:
23.1.3 Seller agrees that CIVS and Xxxx Inlet Western Wireless
PV/SS PCS L.P. ("Xxxx Inlet") shall be considered a "Buyer
Affiliate" for purposes of this Supply Agreement and as such
shall be entitled to purchase Seller's Equipment and Services
pursuant to the terms and conditions of this Supply Agreement and
shall also be entitled to all prices, discounts, incentives,
credits and Handset Funds set forth in this Supply Agreement. In
this regard CIVS shall be entitled to all rights and benefits
available to Xxxx Inlet under this Supply Agreement and Xxxx
Inlet shall be entitled to all the rights and benefits available
to CIVS under this Supply Agreement. In the event entities other
than CIVS and/or Xxxx Inlet become Buyer Affiliates after
Effective Date No. 6, such entities may, subject to the
provisions of 23.1.4 place orders pursuant to the terms of this
Supply Agreement and shall be entitled to all prices, discounts,
Handset Funds, and incentives, with the exception of: SubSection
12.10 (as heretofore amended by Amendment No. 4), Section 1.9 and
SubSection 1.9.1 et. seq., Section 1.10 and SubSection 1.10.1 et.
seq., Section 1.11 and SubSection 1.11.1, and Section 1.14 set
forth in Annex 1 (as amended by this Amendment No. 6).
23.1.4 In the event Buyer or a Buyer Affiliate acquires any
interest in an entity which (i) as a result of or after such
acquisition qualifies as a Buyer Affiliate and (ii) has an
existing contractual agreement with Seller for the supply of GSM
infrastructure Equipment and Services, Seller agrees that such
entity may at Buyer's discretion: (a) continue to acquire
Equipment and Services under its existing contractual agreement
or (b) immediately commence purchasing Equipment and Services
pursuant to the terms and conditions of this Supply Agreement. If
Buyer elects option (b) above, such entity's existing contractual
agreement to purchase Equipment and Services shall terminate and
be of no further force or effect except with respect to
warranties and other provisions relating to Equipment or Services
purchased prior to such termination; provided, however, that
option (b) above shall not be available if the acquired entity's
existing contractual agreement with Seller contains pricing,
volume purchase and/or exclusivity terms that are tied to the
provision to such entity of Seller financing, unless applicable
commitments under such existing contractual agreement have been
met or such financing has been repaid.
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EXHIBIT 10.46
7. Amend Annex 1 by adding the following new Sections, attached hereto as
Exhibit C (it being understood that Sections 1.6 and the Initial Purchase Order
for the Equipment and Services set forth herein shall be subject to Section 17
of this Supply Agreement respecting Change Orders, including, without
limitation, Sections 17.1, 17.5 and 17.6).
8. Amend Annex 1, Section 1.7.8 (as heretofore amended by Amendment No. 3)
by inserting the words "or New Market" after the words "each MTA market" or "a
specific MTA".
9. Amend Annex 1 by adding the following new Sections 1.8.1 - 1.15:
...*...
12. Amend Annex 1, Section 2.2 (amended by Amendment No. 3) by deleting it
in its entirety and replacing it with the following new Section, attached hereto
and incorporated herein as Exhibit E.
Except as specifically modified herein, the Agreement shall in all respects
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to be
duly executed by their representatives being thereunto duly authorized.
VOICESTREAM WIRELESS CORPORATION NORTEL NETWORKS INC.
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx
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Title: President Title: VP, Finance
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Date: May 14, 1999 Date: May 12, 1999
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