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Exhibit 10.80(a)
AMENDMENT TWO TO THE
SUBSCRIBER UNITS AND SERVICES SUPPLY AGREEMENT BETWEEN
MOTOROLA, INC. AND NEXTEL PARTNERS OPERATING CORP.
This
Amendment to the Subscriber Units and Services Supply Agreement
("Amendment") is entered into the last date signed below and will
be deemed
effective as of November 1, 2004 ("Effective Date") between
MOTOROLA, INC., a
Delaware corporation, with offices at 8000 West Sunrise Boulevard,
Plantation,
FL 33322 ("Motorola"), and NEXTEL PARTNERS OPERATING CORP., a
Delaware
corporation, with offices at 4500 Carillon Point, Kirkland, WA
98033 ("NPI");
(Motorola and NPI to be collectively referred to as the "Parties"
and each a
"Party").
WHEREAS, Motorola and NPI entered into the Subscriber Units and
Services
Supply Agreement dated September 20, 2004 (the "Agreement");
and
WHEREAS, Motorola and NPI wish to make certain amendments to the
Agreement
to reflect agreement to certain business terms;
NOW,
THEREFORE, in consideration of the promises and mutual
obligations
contained herein and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby mutually acknowledged, Motorola and
NPI agree as
follows:
1. GENERAL
1.1
Except as set forth
herein, all capitalized terms not defined herein
shall have the meanings given to them in the Agreement.
1.2
All references are to
sections in the Agreement.
2. ADDITIONAL
TERMS AND CONDITIONS
Motorola and NPI agree that the following provisions shall be added
to
Attachment B of the Agreement entitled "Product Terms for
Subscriber Units
and
Accessories":
15.
2004 Special
Promotional Funding.
15.1 Motorola agrees to make available to NPI special
promotional
funding for the activation of *** and *** handsets on the NPI
network in an amount not to exceed *** in accordance with and
pursuant to the conditions set forth below ("Promotional
Funding").
15.2 The Promotional Funding will be paid as a *** credit per
activation, up to a maximum of *** activations.
15.3 To qualify for the activation credit, NPI must:
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a. Meet or
exceed the unit volume and product mix for November
and December that is shown in the Purchase Plan submitted to
Motorola on 10/29/04;
b. Purchase an
additional *** and *** handsets in December
2004; and
c. Submit a
report to Motorola showing proof of new activations
on the NPI network no later than December 31, 2004.
Failure to meet the conditions set forth above by December 31,
2004 will disqualify for the Promotional Funding and Motorola
will retain all amounts.
15.4 Earned activation credits will be applied to the NPI account
in
January 2005.
15.5 This special promotion ends on December 31, 2004, and will not
be
applicable in future calendar years, except as specifically
agreed to in writing by the Parties. Any amount of available
Promotional Funding not utilized by NPI by December 31, 2004
will
become unavailable and retained by Motorola.
3. AGREEMENT
MODIFICATIONS
Motorola and NPI agree that the last paragraph of Section 3.3 of
Attachment
B of the Agreement is
modified to reflect an inventory limit of *** units
instead of *** units.
4.
RATIFICATION
Except as specifically stated in this Amendment, the Agreement is,
in all
other respects, ratified, confirmed and continues in full force and
effect.
5. AUTHORITY
Each
Party hereto represents and warrants that: (i) it has obtained
all
necessary and requisite approvals, consents and authorizations of
third
parties and governmental authorities to enter into this Amendment
and to
perform and carry out its obligations hereunder; (ii) the persons
executing
this
Amendment on behalf of each party have express authority to do
so,
and,
in so doing, to bind the party thereto; (iii) the execution,
delivery,
and
performance of this Amendment does not violate any provision of
any
bylaw, charter, regulation, or any other governing authority of the
party;
and
(iv) the execution, delivery and performance of this Amendment has
been
duly
authorized by all necessary partnership or corporate action and
this
Amendment is a valid and binding obligation of such party,
enforceable in
accordance with its terms.
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IN
WITNESS WHEREOF, Motorola and NPI have entered into this Amendment
as of
the Effective Date first written above.
MOTOROLA INC.
NEXTEL PARTNERS OPERATING CORP.
By:
By: /s/ PHILIP
GASKE
---------------------------------
------------------------------------
Name:
Name: Philip
Gaske
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----------------------------------
Title:
Title: Vice
President
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---------------------------------
Date:
Date:
1/14/05
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----------------------------------
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AMENDMENT THREE TO THE
SUBSCRIBER UNITS AND SERVICES SUPPLY AGREEMENT BETWEEN
MOTOROLA, INC. AND NEXTEL PARTNERS OPERATING CORP.
This
Amendment Three to the Subscriber Units and Services Supply
Agreement
("Amendment") is entered into and will be deemed effective as of
January 1, 2005
("Effective Date") between MOTOROLA, INC., a Delaware corporation,
with offices
at 8000 West Sunrise Boulevard, Plantation, FL 33322 ("Motorola"),
and, NEXTEL
PARTNERS OPERATING CORP. a Delaware corporation, with offices at
4500 Carillon
Point, Kirkland, WA 98033 ("NPI"); (Motorola and NPI to be
collectively referred
to as the "Parties" and each a "Party").
WHEREAS, Motorola and NPI entered into the Subscriber Units and
Services
Supply Agreement dated September 20, 2004 (the "Agreement"); and
amended
November 1, 2004;
WHEREAS, Motorola and NPI wish to make certain amendments to the
Agreement
to reflect agreement to certain business terms for the calendar
year 2005 and
2006;
NOW,
THEREFORE, in consideration of the promises and mutual
obligations
contained herein and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby mutually acknowledged, Motorola and
NPI agree as
follows:
1. GENERAL
1.1
Except as set forth
herein, all capitalized terms not defined herein
shall have the meanings given to them in the Agreement.
1.2
All references are to
sections in the Agreement.
1.3
There is no Amendment
One to the Agreement and Amendment Two,
effective for the Initial Term of 2004, is attached hereto and
incorporated herein to the extent not inconsistent with the terms
of
this Amendment Three.
2. AGREEMENT
MODIFICATIONS
A.
Motorola and NPI agree that the following section of Attachment A
of the
Agreement is modified to read as follows:
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a.
The second
sentence of Section 5.1 shall be deleted and replaced with
the following new sentence: "The first renewal term of this
Agreement
will be for a time period from January 1, 2005 to December 31,
2006
("First Renewal Term"). Thereafter, this Agreement will
automatically
renew for one year periods unless terminated by either party
upon
written notice to the other thirty (30) days prior to the
expiration
of the First Renewal Term or the then current subsequent annual
term
(collectively with the Initial Term, the "Term").
B.
Motorola and NPI agree that the following sections of Attachment B
of
the
Agreement are modified to read as follows:
a.
Section 2.2
"Falcon Subscriber Unit Post-Paid Pricing" is deleted in
its entirety and replaced with the following:
"2.2 Falcon Subscriber Unit Pricing and Terms
.1 The pricing
for each of the "Falcon" Handset Units for 2005
is specified in Appendix B-1 attached hereto and
incorporated herein by this reference and shall constitute
the maximum Base Package price that Motorola shall charge
NPI for the listed Handset Units ("Not to Exceed," or "NTE"
Price). Appendix B-1 supercedes and replaces Appendix B to
the Agreement.
.2 For the ***
and *** Handset Units, the Purchase Advance was
exhausted on or before March 1, 2005 and the pricing of
these Handset Units is as set forth on Appendix B-1.
.3 Appendix B-1
may be amended from time to time by mutual
agreement of the Parties by means of written amendments,
additions or supplemental Handset Unit price sheets signed
by each party. For each Handset Unit model, the Handset Unit
price sheet will indicate whether the Handset Unit model is
categorized as a Low Tier, Mid Tier, High Tier, or Special
Category Handset Unit model.
The current tier categorization of Handset Unit models is
reflected on Appendix B-1 attached to this Amendment.
.4 The pricing
for each of the "Falcon" Handset Units for 2006
is specified in Appendix B-2 attached hereto and
incorporated herein by this reference and shall constitute
the maximum Base Package price that Motorola shall charge
NPI for the listed Handset Units ("Not to Exceed," or "NTE"
Price). The pricing shown in
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Appendix B-2 is contingent on the product cancellations
described in sections .6 and .7 and the volume and mix
commitments described in section 19.
.5 Appendix B-2
may be amended from time to time by mutual
agreement of the Parties by means of written amendments,
additions or supplemental Handset Unit price sheets signed
by each Party. For each Handset Unit model, the Handset Unit
price sheet will indicate whether the Handset Unit model is
categorized as a Low Tier, Mid Tier, High Tier, or Special
Category Handset Unit model.
The current tier categorization (for Efficiency Curve
threshold calculations) of Handset Unit models in 2006 is:
***
.6 Effective
January 1, 2006, the ***, and *** Handset Unit
models will be cancelled. If NPI requires Last Time Buy
"LTB" quantities (LTB available for Service and Repair and
Insurance only), LTB non-cancelable purchase orders, for
delivery in the first quarter of 2006, must be submitted to
Motorola no later then November 30, 2005. The purchase order
price for these LTB handsets will be the price per the
active price list in the month that the LTB order is placed.
.7 Effective on
the Motorola Ship Acceptance Date ( defined as
the date that Motorola commercially releases the subject
Handset Unit to NPI) of the *** Handset, the *** and ***
Handset models will be cancelled. If NPI requires Last Time
Buy "LTB" quantities (LTB available for Service and Repair
and Insurance only), LTB non-cancelable purchase orders must
be submitted to Motorola no later then sixty (60) days prior
to the Motorola Ship Acceptance date of the ***. The
purchase order price for these LTB handsets will be the
price per the active price list in the month that the LTB
order is placed.
b.
Section 3.2
"Co-operative Advertising Program for the Term" is deleted
in its entirety and replaced with the following:
"3.2 Co-operative Advertising Program for the Term:
Effective for 2005, Motorola agrees to provide NPI with a ***
Co-op fund calculated based upon the kitted net purchase price
for all post-
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paid Handset Units (excluding all "Limited Edition", "Special
Edition", "NASCAR", and DBR models), transceiver only units,
and
data devices (excluding CGISS manufactured products), pursuant
to
the promotional guidelines previously agreed upon by the
Parties.
For purposes of calculating the *** Co-op fund, the kitted net
purchase price will exclude SIM Card, SIM Card fees ("pick
fee"),
and any incremental NPI specified collateral and associated
pick
fees. Motorola will issue a credit to NPI's account for all
prior
month's co-op accruals and net credit against open invoices due
on the wire settlement. Appropriate program guidelines are set
forth at Appendix E.
"Limited Edition" models are defined as those unique versions
of
current
handset models distributed in quantities of less than ***
units. "Special Edition" models are defined as those unique
versions of current handset models distributed in quantities of
greater than *** units but less than *** units. "NASCAR" models
are those versions of current handset models that are branded
with approved NASCAR trademarks or other approved artwork
reflecting the NASCAR brand.
The Co-operative Advertising Program effective for 2005 remains
effective for 2006 except that, in addition to the exclusions
to
the Co-op fund calculation indicated above, the *** Handset
model
will also be excluded in 2006."
c.
Section 3.3
"2004 Volume Rebate Incentive ("VRI") Program for
Handsets" is deleted in its entirety and replaced with the
following:
"3.3 2005 Volume Rebate Incentive ("2005 VRI") Program for
Handsets
.1 NPI is to
receive 2005 VRIs in accordance with the table
below once Motorola's Handset Sales, as defined below, to
NPI exceed *** for January 1, 2005 through December 31, 2005
("the 2005 Period"). This 2005 VRI shall not be applicable
to future calendar years except as agreed to in writing by
the Parties.
.2 Handset Sales
is defined as the handset pricing as invoiced
to NPI less Co-op or other new and/or incremental rebates,
promotions, discounts or price adjustments (including but
not limited to all Efficiency Curve Price Adjustments
pursuant to Section 5) to the extent such rebates,
promotions, discounts and price adjustments are not
otherwise accounted for in the invoiced amounts.
Notwithstanding the foregoing, Purchase Advance credits
applied
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to invoiced prices pursuant to Section 4 will not be
subtracted from the invoiced price for purposes of
calculating the Handset Sales.
.3 Except as set
forth below, all handset models are eligible
for the 2005 VRI program unless otherwise agreed by the
Parties from time to time. Items excluded from the
calculation of Handset Sales are data devices (such as
im1100), specialty items, returned items, items passed
through at cost, SIM card, NPI specified
collateral/packaging items, all associated pick fees, and
customer provided third party products. Handset shipments
excluded from the Handset Sales calculation are soft-launch
units, seed stock units, appearance models, units re-sold or
shipped to another carrier or any other units as are
mutually agreed upon in writing by the Parties. Payment of
all earned rebates will coincide with December invoicing
transactions scheduled for settlement in January 2006.
.4 In the 2005
Period, the 2005 VRI amounts for handsets will
be earned in accordance with the following:
<TABLE>
<CAPTION>
Adjusted Handset Sales Range Rebate Earned
---------------------------- -------------
<S>
<C>
***
***
</TABLE>
.5 As a further
condition of any rebate payments under this
2005 VRI program, NPI agrees that it will provide Motorola
with reports of total monthly inventory levels (retail,
warehouse and NPI owned handsets in transit) retroactive to
January 1, 2005 at the same time the Monthly Purchase
Forecast is due by product model and product model
derivatives level (ex: color, limited edition).
.6 As a further
condition of any rebate payments under this
2005 VRI program NPI agrees that its average inventory for
iDEN Handset Units (i.e., retail, warehouse, and NPI owned
handsets in transit) during the last three months of the
2005 Period (October, November, and December 2005) will not
exceed *** units, except as the Parties mutually agree is
reasonable due to market and business conditions."
d.
Section 5
"Efficiency Curve Price Adjustments" is deleted in its
entirety and replaced with the following:
"5. Efficiency Curve
Price Adjustments ("ECPA")
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5.1 The 2005 price
reductions or ECPAs set forth in Section 5.2
below will apply to iDEN Falcon post-paid Handset Units
identified in Appendix B-1 and shipped on a worldwide basis,
excluding Special Category, Limited Edition, Special
Edition, NASCAR, and DBR models, and excluding NPI
sourced/selected items (i.e. SIM Cards, collateral pieces,
and associated pick fees) (collectively "2005 Eligible
Handset Units"). The following ECPA thresholds are effective
January 1, 2005 to December 31, 2005 and are not retroactive
to any ECPAs that occurred in 2004 (no retro-active impacts
to the efficiency curve model).
5.2 Efficiency Curve Price Adjustments
for 2005 Eligible Handset
Units
.1 A *** price
reduction after every *** Low Tier ("LT")
2005 Eligible Handset Units (net of returns) shipped on
a worldwide basis, where LT handsets are defined in
Appendix B-1.
.2 A *** price
reduction after every *** Mid Tier ("MT")
2005 Eligible Handset Units (net of returns) shipped on
a worldwide basis, where MT handsets are defined in
Appendix B-1.
.3 An *** price
reduction after every *** High Tier ("HT")
2005 Eligible Handset Units (net of returns) shipped on
a worldwide basis, where HT handsets are defined in
Appendix B-1.
.4 Volumes of
Handset Units are aggregated by tier (not
model), meaning that the ECPA occur each time the
aggregate number of units shipped in HT total *** or MT
total *** or LT total ***. Only models that have
shipped at the time of an ECPA are eligible for the
corresponding price reduction. Newly introduced models
will not be eligible for an ECPA until six (6) months
after shipment but purchases of those units will still
count toward the aggregate number of Handset Units in a
particular tier for purposes of the ECPA thresholds.
For example, if an eligible MT Handset Unit model
starts shipping on 12/1/04, the units of this model are
included in the count toward the *** MT units from
12/1/04. However, if a MT ECPA occurs in April (prior
to 6/1/05, i.e., 6 months after shipment), this model
will not be eligible for the ECPA in April. The model
will only be eligible for the next MT ECPA when it
occurs.
5.3 The following 2006
price reductions or ECPAs set forth in
Section 5.4 below will apply to iDEN Falcon post-paid
Handset Units identified in Appendix B-2 and shipped on a
worldwide basis, excluding Special
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Category, Limited Edition, Special Edition, NASCAR, and DBR
models, and excluding NPI sourced/selected items (i.e. SIM
Cards, collateral pieces, and associated pick fees)
(collectively "2006 Eligible Handset Units"). The following
ECPA thresholds are effective January 1 to December, 31 2006
and are not retroactive to any ECPAs that occurred in 2005
(no re
