[****] 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.
EXHIBIT 10.21
-------------
AMENDMENT NO. 1
TO
1900 CDMA ADDITIONAL AFFILIATE SUPPLY AGREEMENT
BETWEEN
ILLINOIS PCS, LLC
AND
NORTEL NETWORKS INC.
This Amendment is made effective as of the last date signed (the "Amendment
Effective Date"), by and between Illinois PCS, LLC, an Illinois corporation with
offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Buyer") and Nortel Networks Inc., a Delaware
corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Seller").
WHEREAS, Buyer and Seller entered into a Sprint Additional Affiliate Supply
Agreement on May 24, 1999 ("Agreement"); and,
WHEREAS, Buyer and Seller wish to amend the Agreement, among other things, to
increase Buyer's purchase commitment and to recognize the planned addition of
(i) the successor in interest to Buyer, iPCS Wireless, Inc. a Delaware
corporation (hereinafter referred to as "iPCS Wireless", which corporation is
intended to be the survivor by merger of Buyer with and into that corporation)
and its affiliated entity, iPCS Equipment, Inc., a Delaware corporation,
(hereinafter referred to as "iPCS Equipment") as additional parties that may
order Equipment and/or Services pursuant to the Agreement as amended hereby; and
WHEREAS, Buyer and Seller wish to amend the Agreement to add a new Section
23.13, to read as provided at Section 6 of this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Seller agree as follows:
1. The parties agree to modify Subsection 1.45 so that Subsection reads as
follows:
"1.45 "Term" shall mean the period commencing on the Effective Date and
ending July 11, 2003, unless terminated earlier in accordance with
the terms and conditions hereof, or unless extended by the mutual
agreement of the parties hereto."
2. The parties agree to increase Buyer's Volume Commitment by amending
Subsection 5.1.2, deleting the reference to "thirty-two million dollars
($32,000,000)" and replacing it with "sixty million dollars ($60,000,000),"
and hereby confirm that the net amount of all purchases made by Buyer under
this Agreement to the Amendment Effective Date in the approximate amount of
$24,700,000.00 (twenty four million, seven hundred thousand dollars) shall
be credited in full towards this revised Volume Commitment requirement.
3. The parties agree to modify Subsection 5.1.3 so that Subsection reads as
follows:
"5.1.3 The Price for any Equipment and Services purchased under this
Agreement prior to April 1, 2000 and financed by Seller shall
include an additional **** percent (****%) ("Financing Premium")
over Additional Affiliate pricing as set forth in Annex 1. From and
after April 1, 2000 the Financing Premium shall no longer
apply."
4. The parties agree to amend Annex 1 by adding a new Article 5.0 (BUYER'S
PURCHASE PRIORITY) as follows:
[****] CERTAIN PORTIONS INDICATED BY "****" HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE
COMMISSION.
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"5.0 BUYER'S PURCHASE PRIORITY
The provisions of this Amendment No. 1 and the obligations of the parties
hereunder are contingent upon the occurrence of the Effective Date under
the Amended and Restated Credit Agreement among Buyer, iPCS, Inc., a
Delaware corporation, iPCS Wireless and iPCS Equipment, certain lenders,
GE Capital Corporation as Syndication Agent and Toronto Dominion (Texas),
Inc. as Administrative Agent. In the event the Effective Date of the
Amended and Restated Credit Agreement referenced above has not occurred
within sixty (60) days of the execution of this Amendment No. 1, then, and
unless the parties otherwise agree in writing, this Amendment No. 1 shall
automatically become null and void.
5.1 Simultaneously with the execution of this Amendment, and subject to the
provisions set out below, Buyer shall issue a Purchase Order for Equipment
in the minimum net Price amount (i.e., Price including all applicable
discounts, but exclusive of sales taxes) of Eighteen Million Eight Hundred
Ninety Four Thousand Nine Hundred Eighty Dollars ($18,894,980), and take
delivery of such Equipment on or before October 8, 2000. Notwithstanding
the execution of the Purchase Order, in the event Buyer is unable to
obtain full funding as called for in its business plan, and informs Seller
of such, the amount of $18,894,980 shall be reduced by the amount of
$13,612,957 so that Buyer shall be obligated under this Purchase Order
only to purchase Equipment in the minimum net Price amount of $5,282,023.
5.2 In recognition of Seller's pricing initiatives to Buyer, Buyer confirms
its intent to recognize Seller as its supplier of choice for the Term of
this Agreement in Buyer's continuing development of the Illinois, Iowa and
Nebraska markets."
5. From and after the effectiveness of this Amendment and the effectiveness
of the merger of Buyer with and into iPCS Wireless, the term "Buyer" as
used in the Agreement as amended hereby shall mean and include iPCS
Wireless and iPCS
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Equipment, and both iPCS Wireless and iPCS Equipment shall have full
rights to purchase under the Agreement as amended hereby with all such
purchases to be credited towards the Volume Commitment. With respect to
all matters pertaining to individual Purchase Orders, and the Equipment
and/or Services purchased or licensed pursuant to such Purchase Orders by
iPCS Wireless and iPCS Equipment, the term "Buyer," as used herein, shall
refer solely to whichever entity is the applicable ordering entity, and
only the ordering entity and Seller shall have any rights and obligations
under such Purchase Order(s), except as provided in Section 6, below.
6. The parties agree to add a new Section 23.13, as follows:
23.13 Seller understands that Equipment and Services ordered by iPCS
Equipment pursuant to this Agreement shall be purchased and licensed for
transfer solely to iPCS Wireless for its internal use and not for resale.
Pursuant to Section 23.1 of the Agreement, with respect to Purchase Orders
issued by iPCS Equipment, Seller hereby consents to iPCS Equipment's
assignment of the software license granted by Seller for the applicable
Software, solely to iPCS Wireless in conjunction with the transfer of the
associated Hardware, and to iPCS Equipment's assignment of its rights and
delegation of its duties under such Purchase Orders solely to iPCS
Wireless, with the exception of payment of the Price, such Price and
payment thereof remaining the responsibility of iPCS Equipment to Seller.
Upon such assignments, Seller shall deal with iPCS Wireless as if it were
the original purchaser, except for Price. The parties agree that Seller
shall in no event be required to respond to or deal with both iPCS
Wireless and iPCS Equipment regarding any Purchase Order or item of
Equipment.
7. Except as specifically modified by this Amendment, the Agreement in all
other respects shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be signed by
their duly authorized representatives and effective as of the date first set
forth above.
ILLINOIS PCS, L.L.C. NORTEL NETWORKS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ---------------------------------
(Type/Print) (Type/Print)
Title: President and Chief Title: Vice President and General
Executive Officer Counsel Contracts, Service
--------------------------------- Provider Solutions - Americas
--------------------------------
Date: July 11, 2000 Date: July 11, 2000
--------------------------------- ---------------------------------
ACKNOWLEDGED AND AGREED:
iPCS WIRELESS, INC. iPCS EQUIPMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ---------------------------------
(Type/Print) (Type/Print)
Title: President and Chief Title: President and Chief
Executive Officer Executive Officer
--------------------------------
Date: July 11, 2000 Date: July 11, 2000
---------------------------------- ---------------------------------
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