EXHIBIT 10.15.1
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED SYSTEM
EQUIPMENT PURCHASE AGREEMENT BETWEEN LUCENT
TECHNOLOGIES INC. AND CRICKET COMMUNICATIONS, INC.
This Amendment No. 1 is entered into by and between Lucent Technologies Inc.
("LUCENT") and CRICKET Communications, Inc. ("CRICKET") as of this 22nd day of
March, 2002 ("Effective Date").
WHEREAS, the Parties have entered into that certain Amended and Restated System
Equipment Purchase Agreement dated June 30, 2000, as amended, under which
CRICKET may purchase products and services from LUCENT (hereafter "The Supply
Agreement"); and
WHEREAS, pursuant to The Supply Agreement, LUCENT has agreed to finance certain
products and services purchased by CRICKET thereunder; and
WHEREAS, the Parties have agreed to modify certain provisions of the Supply
Agreement as indicated herein;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties agree to amend The Supply Agreement as follows (terms not
otherwise defined herein shall have the meanings set forth in The Supply
Agreement):
1. The heading of Section 24.7 of the Supply Agreement is hereby changed to
the following:
"24.7 Vendor's Right to Terminate and Pursue Remedies"
2. Section 24.7(b) is hereby modified to read as follows:
"(b) the Owner fails to make payments of undisputed amounts due to the
Vendor pursuant to the terms of this Contract, which are more than
thirty (30) days overdue, provided that such failure has continued for
at least thirty (30) days after the Vendor has notified the Owner in
writing of its right and intent to terminate on account of such overdue
amount."
3. A new Section 24.7(d) shall be added to the Supply Agreement and shall
read as follows:
"(d) (i) the Owner or any of Owner's subsidiaries is in material default
of any Indebtedness (as such term is defined in the Amended and Restated
Credit Agreement, dated as of September 20, 1999, as amended and
restated as of October 20, 2000, among Cricket, Lucent and the other
parties thereto, as amended to date) for borrowed money, that has an
outstanding principal balance of at least Twenty-Five Million Dollars
(US$25,000,000.00) in the aggregate
("Indebtedness Default"), (ii) Owner or any of its subsidiaries has been
served with notice of such Indebtedness Default under the terms of such
Indebtedness, to the extent notice is required thereunder; and (iii)
such Indebtedness Default has not been cured, waived or discharged in
full, (including, through payment of the related Indebtedness) within
the Cure Periods (as defined below) after Owner (or its subsidiaries as
applicable) has been served with written notice of default. The "Cure
Periods" for purposes of this paragraph shall be: 1) for an Indebtedness
Default that is not a payment default, the cure period shall be as set
forth in the agreement governing the applicable Indebtedness, and if
said Indebtedness provides for no such cure period, then thirty (30)
days; and 2) for payment Indebtedness Default, three (3) business days
("Cure Periods").
Notwithstanding the provisions of the preceding paragraph of this
subsection (d), Vendor's rights to terminate or pursue other claims
pursuant to this subsection (d) as a result of a specific Indebtedness
Default will be suspended in the event Owner has a bona fide dispute
over the existence of such Indebtedness Default, provided a) Owner is
diligently pursuing a resolution of the dispute in good faith; and b)
Owner commences, within ninety (90) days after the end of the applicable
Cure Period, formal mediation, arbitration, litigation or such other
dispute resolution mechanism available to Owner under the subject
Indebtedness.
Within five (5) days after Owner's receipt of written notice of any
Indebtedness Default, Owner shall notify Vendor of the Indebtedness
Default in writing. Such notification will include the description of
the default and a statement of Owner's intent to dispute such
Indebtedness Default, if Owner has made such a determination at such
time, and if Owner has not made such determination, then when Owner
makes the determination, Owner will give notice thereof to Vendor."
4. A new paragraph shall be added to the end of Section 24.7, after Section
24.7(d), and shall read as follows:
"In addition to the right to terminate this Contract as provided above,
in the event any one or more of the events described in subsections
24.7(a) through (d) above occurs, then Vendor, at its sole option, may
exercise all legal rights and remedies it has available to it by law or
equity, and specifically, the rights to stop any outstanding shipments,
to cease performance until the default is cured (except for performance
obligations arising under Sections 2.8, 12, 13, 14, 15, 16.3, 18, 19,
20, 23, 24 and 26), to place a credit hold on Owner's purchases, to
require revised payment terms for continued sales and purchases (except
that no such revisions will be made to the provisions of Section 5.3(e)
relative to late payment charges) for any outstanding payments due and
to cancel any outstanding orders.
5. Section 24.8(a) is hereby modified to read as follows:
"(a) In the event that funds sufficient to finance Owner's obligations
under this Contract are not available to Owner under the Vendor
Financing as a result of limitations imposed by Vendor by the definition
of Available Commitment in the Vendor Financing, and provided that the
unavailability of funds is not due to the expiration of the Vendor
Financing, then i) each party's obligations to perform shall be
suspended except for those obligations contained in Sections 2.8, 12.
13, 14, 15, 16.3, 18, 19, 20, 23, 24 and 26, or as otherwise required by
law, and (ii) if the cap remains in place for more than thirty (30)
days, Owner shall be released from any obligations to purchase Equipment
and Services under this Contract."
6. In the event of a conflict between this Amendment and the Supply
Agreement, this Amendment shall govern.
7. All other terms and conditions contained in The Supply Agreement remain
unchanged and in full force and effect and continue to apply to this
Amendment.
AGREED:
Lucent Technologies Inc. CRICKET Communications, Inc.
Name: /s/ Stephen R. Marino Name: /s/ Glenn Umetsu
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Title: Customer Team VP Title: Sr. VP
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Date: 3/22/02 Date: March 22, 02
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