exv10w10



 




EXHIBIT 10.10







GSM AND IN SUPPLEMENT TO THE PURCHASE AND
LICENSE AGREEMENT (Revision 2)








     
The terms and conditions provided in this GSM
AND IN SUPPLEMENT TO THE PURCHASE AND LICENSE AGREEMENT
(Revision 2) (“Supplement”) and its
attachments are in addition to those contained in the Purchase
and License Agreement effective as of December 20, 2001, as
amended, (“PLA”) entered into by and between Microcell
Solutions Inc. (formerly Microcell Connexions Inc.)
(“Customer”) and Nortel Networks Limited
(“Nortel Networks”), and will apply solely to the
provision of the Products and/or Services specified in this
Supplement during the Term.



     
WHEREAS,
Nortel Networks and Customer previously entered into a GSM
and IN Supplement to the PLA effective December 20, 2001,
which was superseded by the GSM and IN Supplement to the PLA
(Revision 1) effective December 6, 2002 (“2002
Supplement”) and amended by the Letter of Agreement
effective December 11, 2003 (“LOA”);



     
AND WHEREAS, the
parties now wish to amend certain provisions of the 2002
Supplement and accordingly wish to replace the 2002 Supplement
as well as the LOA with this Supplement;



     
NOW THEREFORE, in
consideration of the premises herein and for other good and
valuable consideration, Nortel Networks and Customer agree
as follows:



 


		
	1.	
    Term



     
This Supplement is effective as of
January 13, 2004 (“Effective Date”) and shall
continue until December 31, 2006 unless earlier terminated
as provided herein (“Term”). This Supplement hereby
supersedes and replaces the 2002 Supplement and the LOA as of
the Effective Date. However, for greater certainty, certain
provisions of the 2002 Supplement shall survive such termination
pursuant to Section 12 thereof and nothing in this section
affects the parties’ agreements made under Section 2
of the 2002 Supplement.



 


		
	2.	
    Products and Pricing



     
This Supplement shall govern Customer’s
purchase/license of Nortel Networks Products and Services
listed in the Attachment A attached hereto. The prices for
such Products and Services will be based on the
Nortel Networks base prices to Customer, as set forth in
Attachment B (“Microcell Base Price”). Unless
otherwise stated herein, all pricing set forth in this
Supplement is in Canadian dollars.



 


		
	3.	
    Customer’s Commitments



     
In consideration of the incentives and discounts
contained in Attachment B, Customer agrees as follows:




			
	 	a)	
    Throughout the Term, on a quarterly basis,
    Customer shall provide Nortel Networks with a rolling twelve
    (12)-month, month-by-month forecast of its requirements for GSM
    1900 equipment and software and UMTS equipment and software as
    described in Attachment A and related Services.
    Nortel Networks acknowledges that such forecast will not be
    binding, and that Customer shall not be obligated to submit an
    Order for any portion of such forecast or estimate.
    
	 
	 	b)	
    Customer will issue, not later than
    December 10th of each of 2004 and 2005 Order(s) for the
    maintenance of all Products under an extended service and
    support plan (“ESSP”) for the following year. Payments
    of the ESSP fees, as set out in Attachment B, shall be made
    in four (4) equal
    












 


			
	 		
    quarterly payments, which shall be due on
    January 1st, April 1st, July
    1st and October 1st of the applicable
    calendar year.
    





			
	 	c)	
    During the Term, Customer:
    





			
	 	(i)	
    will not replace with equipment of another
    equipment provider any of the Nortel Networks GSM Products
    installed that are carrying traffic in the following provinces:
    British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,
    Quebec, Nova Scotia and Newfoundland;
    
	 
	 	(ii)	
    will continue to use all the Nortel Networks
    GSM Products currently carrying GSM traffic in the provinces
    referenced in item (i) above unless and until replaced by
    other Nortel Networks GSM Products;
    
	 
	 	(iii)	
    once all the Customer’s existing MSCs and
    HLRs have been replaced by Nortel Networks equipment (as
    described in Section 3d) below), Customer will purchase or
    license, as the case may be, all of its GSM and UMTS Core
    network (MSC, HLR and call servers) for extensions and new
    switch/core sites exclusively from Nortel Networks until
    December 31, 2006. For greater certainty, this exclusivity
    shall not apply to UMTS service layer and UMTS access equipment.
    Microcell will agree to grant to Nortel Networks, until
    December 31, 2008, a similar exclusivity to the one set
    forth in this Section 3c)(iii) under a new agreement to be
    negotiated between the parties applying from January 1,
    2007, to the extent that Nortel Networks offers to
    Microcell comparable and favourable discounts on these products
    in the new agreement.
    





			
	 	d)	
    Customer will purchase 2 HLRs (in a mated pair
    configuration) with capacity of 2.2 Million subscribers and
    2 MSCs with an aggregate capacity of 1,200 T1’s to
    replace the Customer’s existing equipment as described in
    paragraph 1.1b) of Attachment B. This equipment will
    be delivered to Customer site starting January 5, 2004, but
    no later than January 15, 2004.
    
	 
	 	e)	
    If Customer decides to launch a City FidoTM
    offer or any offer similar to the City FidoTM offering
    launched in October, 2003 in Vancouver (i.e. an offer
    contemplating unlimited usage for a fixed monthly price) in the
    market deserved by the City Fido Sites (as defined in
    Attachment B), Customer will provide Nortel Networks
    with notice of this decision (the “City Fido Notice”)
    and will purchase and take delivery of at least $15,000,000 of
    BSS Products (net of all incentives described in Attachment B)
    for the City Fido Sites before June 30, 2004. Customer
    further agrees to issue Orders for 2,000 BSC licenses and
    for fifty (50) S12000 S555 configurations (fifty (50) main
    and fifty (50) extension cabinets) and its related
    miscellaneous items no later than the Effective Date. However,
    if Customer does not issue the City Fido Notice prior to
    June 30, 2004, Customer’s commitment to purchase BSC
    licenses shall be reduced from 2,000 to 1,500, which corresponds
    to the needs of Customer for Vancouver in 2004.
    Nortel Networks hereby acknowledges that 1,100 BSC
    licenses have already been ordered by Customer for Vancouver and
    that Customer’s commitment pursuant to this Section, if it
    does not issue the City Fido Notice, shall be limited to the
    ordering of 400 BSC licenses.
    
	 
	 	f)	
    Customer will purchase and take delivery of at
    least 80T1’s to be installed in one or both Vancouver MSCs
    before December 15, 2004.
    




 


		
	4.	
    Purchase and License Agreement



     
Subject to Section 8, the parties hereby
agree that the PLA including this Supplement, shall not, during
the Term, be terminable by the parties, except with written
consent and agreement of both Nortel Networks and Customer,
unless otherwise specifically permitted by the terms and
conditions herein.



 


		
	5.	
    Confidentiality and Press Releases



     
The content of this Supplement shall remain
confidential to Nortel Networks and Customer, and shall not
be disclosed, publicized or disseminated by either party, unless
required by law, without the prior written



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consent of the other party. Customer and
Nortel Networks hereby agree to issue a joint mutually
agreed upon press release related to this Supplement.




 


		
	6.	
    Delay and cancellation of an Order



     
If Nortel Networks delays in the delivery of
GA Products or Services for more than sixty (60) days after
the standard lead-time interval defined in Attachment G (Order
Lead-times) which will be finalized within thirty (30) days
of the Effective Date, following receipt of an Order that is
accepted by Nortel Networks, Customer may cancel the Order and
the net amount of the cancelled Order will be included in the
calculation of net volumes as if the Order had not been
cancelled for the purpose of calculating incentives based on
volumes hereunder, the whole without prejudice to its right to
claim damages for such delay and without prejudice to any other
right or recourse it may have.



 


		
	7.	
    Product Evolution




			
	 	a)	
    Nortel Networks will provide Customer with
    Manufacture Discontinued (MD) Notices at least
    six (6) months prior to the MD date of its Products.
    The MD Notices will contain the following information:
    





			
	 	(i)	
    MD date
    
	 
	 	(ii)	
    End of Life (EoL) date (end of support for the
    product)
    
	 
	 	(iii)	
    Last time buy of the Product (including spares)
    





			
	 	b)	
    Spares parts for current Products remain
    available for purchase until MD’ed. Spare parts for
    Products being MD’ed are available for last time buy per
    the MD Notice.
    





			
	 	(i)	
    For GSM Products, the Repair Services will be
    available for five (5) years after the Product is
    MD’ed (if MD’ed during the contract period) or for
    five (5) years after the PLA expires for then current
    products, whichever comes first.
    
	 
	 	(ii)	
    For the other Products (including OEM components)
    defined in Attachment A, the Repair Services will be
    available until the Product EoL as defined in the MD Notice.
    




 


		
	8.	
    Termination



     
Either party may terminate this Supplement by
giving written notice to the other party, if the other party:
1) commits a substantial breach of a material term,
condition or provision hereunder; or 2) makes a general
assignment for the benefit of creditors or if a petition in
bankruptcy or under insolvency law is filed by or against the
other party and such petition is not dismissed within sixty
(60) days after it has been filed; provided however, that
neither party shall terminate this Supplement unless and until
the other party shall have failed to cure such default within
thirty (30) days after it has been served with a notice
requiring that such default be cured and stating the sending
party’s intention to terminate the Supplement if compliance
with the notice to cure is not met. Termination shall not limit
either Nortel Networks or Customer from pursuing any other
remedies available to either of them, including injunctive
relief, nor shall such termination relieve obligation to pay all
fees that accrued prior to termination.



 


		
	9.	
    Survival



     
Notwithstanding the termination or expiry of this
Supplement or of the PLA, the provisions of the PLA and of this
Supplement which are intended by their nature to survive shall
survive the termination or expiry of this Supplement or of
the PLA.



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MICROCELL SOLUTIONS INC.



 


		
	By: 	




Name: Carl Dexter





Title: Vice President, Network





Address: 800 de La Gauchetière Street West,
Suite 4000, Montreal, Quebec, H5A 1K3




 


		
	Date: 	




NORTEL NETWORKS LIMITED


 


		
	By: 	




Name: Rejean Bourgault





Title: Account Leader





Address: 8200 Dixie Road, 

 Brampton, Ontario, L6T 5P6




 


		
	Date: 	



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