CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.1
Redacted
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED GENERAL AGREEMENT NO. LNM00NMJW1200
FOR PURCHASE OF CELLULAR SYSTEMS
This Amendment No. 1 to the Amended and Restated General Agreement No.
LNM00NMJW1200 is made effective as of the 17th day of September 2002, between
Western Wireless Corporation ("Customer"), a Washington corporation with offices
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Lucent Technologies Inc.
("Seller"), a Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (collectively known as the "Parties"). This Amendment No.
1 shall automatically terminate and expire on September 30, 2002,
contemporaneously with the expiration of the General Agreement.
WHEREAS, the undersigned parties have previously entered into the Amended and
Restated General Agreement Number LNM00NMJW1200 for Purchase of Cellular
Systems effective August 1, 2000; ("General Agreement");
WHEREAS, the Parties wish to amend the General Agreement to add certain pricing
and product configurations for Products, Licensed Materials, and Services
provided by Seller in connection with Customer's digital (CDMA) 800 Mhz cellular
overlay project ("CDMA Overlay Project");
WHEREAS, the Parties wish to incorporate the information related to the swapout
of the AZ4, AZ6, CA7 markets ("CA/AZ Swapout Project"), including AMPS, TDMA and
CDMA as referenced in Exhibits A and D attached hereto and incorporated by this
reference and to confirm resolution of certain other issues associated with the
Swapout Project;
WHEREAS, the Parties wish to resolve certain other issues associated with the
Supplemental Authorized Work Orders ("SAWOs") issued in connection with the CDMA
Overlay Project; and
WHEREAS, the Parties wish to resolve certain other issues associated with the
invoices rendered for Products, Licensed Materials, and Services provided
pursuant to the General Agreement.
NOW THEREFORE, in consideration of the premises contained herein and other good
and valuable consideration the Parties hereto agree to amend the General
Agreement and otherwise stipulate and agree as follows:
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I. SCOPE OF AMENDMENT:
The terms and conditions of this Amendment incorporate by reference the General
Agreement except as expressly modified, supplemented, or deleted herein. Any
such modifications, supplements, or deletions shall apply only to this Amendment
and shall not apply to any other agreement, unless so provided therein. In the
event of any conflict between the terms of this Amendment and the General
Agreement, the terms and conditions of this Amendment shall apply only with
respect to the Products, Licensed Materials and Services to be offered hereunder
and those provisions of the General Agreement specifically referenced herein.
II. EXHIBITS
The following Exhibits to this Amendment No. 1 are hereby incorporated into this
Amendment:
A. Exhibit A -- Attachment A to the General Agreement - Wireless
Swapout and Growth Proposal
B. Exhibit B -- Responsibility Matrix for CDMA Digital Deployment.
C. Exhibit C -- Targeted Deployment Matrix
D. Exhibit D - CDMA Digital Deployment Pricing Summary and Pricing
Notes.
E. Exhibit E -- Letter Agreement dated July 20, 2001
F. Exhibit F -- Letter Agreement dated April 23, 2002 with
Attachments A and B
G. Exhibit G -- List of Supplemental Authorized Work Orders
III. CDMA OVERLAY PROJECT 2001 PRICING AND PRODUCT CONFIGURATION
A. For purposes of this Amendment, the General Agreement shall be
amended to reflect the pricing and product configurations set forth in
Attachment A of the Letter Agreement dated April 23, 2002 (Exhibit F) for CDMA
equipment delivered by Seller to Customer during the calendar year 2001.
Seller's Invoices have been adjusted and reflect the pricing set forth in
Attachment A of the Letter Agreement dated April 23, 2002 (Exhibit F).
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IV. CDMA OVERLAY PROJECT 2002 PRICING AND PRODUCT CONFIGURATION
A. For purposes of this Amendment, Attachment A of the General Agreement
shall be amended to reflect the pricing and product configurations set forth in
Attachment B of the Letter Agreement dated April 23, 2002 (Exhibit F) for CDMA
equipment delivered by Seller to Customer from April 23, 2002 through the
expiration of the General Agreement on September 30, 2002.
B. Seller's Invoices have been adjusted and reflect the pricing set
forth in Attachment B of the Letter Agreement dated April 23, 2002 (Exhibit F).
Customer shall render payment to Seller pursuant to the payment terms of the
General Agreement.
C. The pricing set forth in Attachment B of the Letter Agreement dated
April 23, 2002 (Exhibit F) shall apply to Customer's Purchase Order Number
ENG-17954 for Cedar City, Utah.
V. SWAPOUT PROJECT
By a prior Letter Agreement between the Parties, dated July 20, 2001, a copy of
which is attached hereto as Exhibit F and incorporated by this reference, the
Parties agreed to cancel Customer's Purchase Order ENG-12718 issued in
connection with the California/Arizona Swapout Project, and in exchange for the
payment referenced therein, Customer and Seller agreed for Seller to accept the
Equipment for return contingent upon receiving payment for stated fees
associated with the cancellation and to null and void any contractual incentives
or credits that may have been associated with Purchase Order Number ENG-12718
and available under the terms of Contract No. LNM00NMJW1200.
VI. PURCHASE COMMITMENT AND PRICING
A. Customer and Seller agree that it is unlikely Customer will meet
the full purchase commitment referenced in Section 1.4 of the
General Agreement for the period ending September 30, 2002. In
exchange for Customer having issued Purchase Orders for
Equipment, Licensed Materials or Services in the third calendar
quarter of 2002 (July-Sept) in the amount of **, and Customer
taking delivery thereof, Seller agrees to deem the purchase
commitment which may be due and owing by Customer for the period
ending September 30, 2002 satisfied in full. The purchase
commitment shall still be deemed satisfied in full if Seller is
unable to fulfill all or part of these Purchase Orders for
reasons unrelated to Customer.
B. Article 1 Section 1.4 Subsection (f) (iii) is deleted in its
entirety.
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VII. PRICING ADJUSTMENT
A. Article 1 Section 1.4 Subsection (f) (vi) is amended as follows: In
the third sentence, the pricing shall be revised to $** per ECP where the CDMA
technology has been deployed. The price for each non-CDMA ECP shall remain at
$**.
VIII. INVOICE RECONCILIATION
In full and final settlement of any claims related to payments or credits
associated with these Purchase Orders and Invoices, the Parties agree as
follows:
A. All invoicing for the 2001 CDMA deployment related to Purchase
Order numbers 12717, 12942, 12948, 13310, 15079, 15103, 16235
and 16964 is complete and no additional revisions or subsequent
Invoicing against these Purchase Orders shall occur.
B. The parties agree that the total payments due from Customer to
Seller for these invoices was $**.
C. The actual payments received by Seller for these Invoices was in
the amount of $** and therefor product credits in the amount of
$** will be made available from Seller to Customer immediately
upon signing of this Amendment.
IX. CREDITS FOR PRODUCTS AND SERVICES
Seller will accept the return of the AAA servers on Purchase Order
Numbers 763112JZ and 763618JZ in the amount of $** per order and Seller
shall process a credit to Customer for a total amount of $**.
Invoice numbers PS-48538, PS-50496 and PS-50497 on Purchase Order Number
12949 billed for Enhanced Program Management will be credited to
Customer in the total amount of $**. The Enhanced Program Management
work was billed pursuant to the SAWO reconciliation in Exhibit G in the
total amount of $**.
Upon Seller's receipt of all payments due under this Amendment, each
party hereto agrees to waive any further claims related to the payments
or associated credits from the other party.
X. SUPPLEMENTAL AUTHORIZED WORK ORDERS
A. Attached hereto as Exhibit G and incorporated by this reference,
is a complete list of all Supplemental Authorized Work Orders
(SAWOs)
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issued by Seller to Customer for Services provided during the
period commencing on January 1, 2001 and ending on December 31,
2001 ("SAWOs Period"). Seller agrees that no additional SAWOs
shall be issued for Services provided during the SAWOs Period.
B. In full and final settlement of any claims related to payments
or credits associated with these SAWOs, the Parties agree as
follows:
Customer shall pay Seller ** within thirty five (35) days of the
date of Seller's Invoice. Seller's Invoice shall be issued upon
execution of this Amendment by both parties.
Upon Seller's receipt of all payments due under this Amendment,
each party hereto agrees to waive any further claims related to
the SAWOs payments or associated credits from the other party.
XI. ENTIRE AGREEMENT
This Amendment, together with the Exhibits, and made a part of the General
Agreement constitute the entire agreement between the Parties with respect to
the subject matter hereof and supersede all prior oral and written
communications, agreements, and understandings of the Parties on such subject
matter.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed
by their duly authorized representatives on the date(s) indicated.
WESTERN WIRELESS CORPORATION LUCENT TECHNOLOGIES INC.
By: By:
-------------------------------- --------------------------------
Typed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Typed Name:
------------------------
Title: Sr. Vice President and Corporate Title:
Secretary ----------------------------
Date: Date:
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