exv10w20



 







Exhibit 10.20




CONFIDENTIAL TREATMENT REQUESTED




Confidential material has been separately filed with the Securities and Exchange Commission under
an application for confidential treatment. Terms for which confidential treatment has been
requested have been omitted and marked with an asterisk [*].



AMENDMENT NUMBER ONE TO THE

SUBSCRIBER UNIT PURCHASE AGREEMENT FOR NII HOLDINGS INC.




This Amendment Number One to the Subscriber Unit Purchase Agreement is effective as of the last
date signed below and is entered into between Motorola Inc., having a place of business at 8000
West Sunrise Boulevard, Fort Lauderdale, Florida 33322 USA (hereinafter “Seller” or “Motorola”)
and, NII HOLDINGS, INC., a company formed under the laws of Delaware, with a place of business at
10700 Parkridge Boulevard, Suite 600, Reston, Virginia 20191 (hereinafter “Buyer” or “NIIH”).
Capitalized terms used herein but not otherwise defined herein shall have the same meanings given
to such terms in the Agreement.



WHEREAS the parties have entered into a Subscriber Unit Purchase Agreement dated January 1, 2005
(the “Agreement”), as heretofore amended, modified, supplemented or otherwise revised;



WHEREAS the Seller manufactures and markets co-branded Motorola iDEN Mobile Devices products
identified as Baby Phat II phones), and NIIH wishes to distribute such phones as Products under
this Agreement through its Mexico Affiliate, Multifon, SA de CV;



WHEREAS the lawful owner of the Baby Phat logos and Trademarks, RKLR Licensing, LLC, (hereinafter
“RKLR”) requires all distributors of the Baby Phat II phones, as a pre-condition to authorizing
such distribution, to covenant for the protection of its intellectual property rights in such logos
and trademarks;



THEREFORE, in consideration of their mutual obligations and covenants, the parties agree to amend
the Agreement as follows:



TERM. The term of this Amendment shall begin on the date of the last signature hereto (“Effective
Date”), and end on [*], under the terms and conditions set forth in the Agreement, unless extended
by mutual written agreement of the parties. The parties agree that the terms and conditions of
this Amendment apply solely to the Baby Phat II phone Products as defined herein. In the event of
a conflict between the terms and conditions of this Amendment and the Agreement, the terms and
conditions of the Amendment shall apply.



PURCHASE ORDERS. The total number of Baby Phat II phone Products that Buyer may order under this
Agreement is (i) up to [*] i833 Limited Edition Baby Phat II Phones, subject to availability.
Purchase orders are non-cancelable and must be placed upon acceptance of the Product and associated
terms and conditions. All orders by Buyer shall be only upon the terms and conditions of this
Amendment including all applicable terms of the Subscriber Agreement. Any inconsistent terms in
Buyer’s purchase orders shall be without effect.





 




	 	 
	* 	Indicates that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.











Motorola/NII Mexico





Motorola Confidential & Proprietary



1





 









 








PRICING. Prices applicable to the Product sold pursuant to this Amendment (“Prices”) are set forth
in Exhibit A. In order for Prices to be applicable, the purchase orders submitted to Seller must
reference this Amendment.



TERRITORY. Distribution of Product is limited to the country of Mexico.



DISTRIBUTION. Motorola represents that it has been licensed the right, subject to certain terms and
conditions, to distribute and sell Baby Phat II phone Products, to NII Mexico for resale within
Mexico through NII Mexico’s Direct Sales channel, dealer network, and high end, premium retail
channels such as “Palacio de Hiero”. All other channels of distribution within Mexico shall be
subject to the prior written approval of RKLR.



BABY PHAT LOGOS AND TRADEMARKS. In order that RKLR, the owner of the Baby Phat logos and
trademarks, may protect its trademarks, trade names, corporate slogans, corporate logo, goodwill
and product designations, Buyer, without the advance written approval of RKLR, shall have no right
to use any such marks, names, slogans or designations of Seller in the sales, lease or advertising
of any products or on any product container, component part, business forms, sales, advertising and
promotional materials or other business supplies or material, whether in writing, orally or
otherwise. Buyer agrees to provide Motorola with all promotional and advertising materials
containing Baby Phat logos and trademarks for approval by RKLR before such logos or trademarks are
used. In the event that Buyer does not receive written approval or disapproval, such materials
shall be deemed disapproved. Motorola represents and warrants that it is authorized by RKLR to
communicate such approval as is required to market and sell Products in Mexico by Buyer.



INDEMNIFICATION. Buyer shall indemnify and hold Motorola, and its employees, officers, and agents
harmless from all claims, demands, liabilities, suits and proceedings (including any brought in or
before any court, government or administrative body, arbitration panel or other tribunal)
(“Claims”) and any and all expenses arising therefrom, including reasonable attorneys’ fees,
against or involving Motorola on account of or arising out of any of the following: (i) Buyer’s
failure to obtain permission to use Baby Phat or other third party proprietary rights used in
Buyer’s advertisements, promotional material, and publicity of Baby Phat II phone Products; (ii)
any alleged or actual infringement of Baby Phat or third party proprietary rights arising from the
use of any public relations material which Buyer provides, prepares or uses in connection with this
Amendment and which has not been approved by Motorola or RKLR; (iii) any assertions or claims made
about any Baby Phat II phone Products or Buyer’s competitors’ products or services in any
advertising, promotional material, or in any public relations material which Buyer provides,
prepares or uses in connection with this Amendment and which has not been approved by Motorola or
RKLR, or (iv) Buyer’s breach of any of Buyer’s obligations under this Amendment, provided that
Buyer is notified promptly in writing of the Claim and, at Buyer’s request and at its expense, is
given control of the Claim and all reasonably requested assistance for its defense. The terms of
this indemnity provision is the sole and exclusive remedy of Motorola for any of the causes listed
herein.



Motorola shall indemnify and hold Buyer, and its employees, officers, and agents harmless from all
claims, demands, liabilities, suits and proceedings (including any brought in or before any court,
government or administrative body, arbitration panel or other tribunal) (“Claims”) and any and all
expenses arising therefrom, including reasonable attorneys’ fees, on account of or arising out of
Motorola’s failure to obtain from the owner of the Baby Phat logos and trademarks all rights
required for the marketing and sale of Products in Mexico through Buyer’s approved distribution
channels, subject to the provisions of the section above entitled “BABY PHAT LOGOS AND
TRADEMARKS”. Motorola will be notified promptly in writing of the Claim and, at Motorola’s request
and at its expense, will be given control of the Claim and all reasonably requested assistance for
its defense. The terms of this indemnity provision is the sole and exclusive remedy of Buyer for
Motorola’s failure to obtain from the owner of the Baby Phat logos and


Motorola/NII Mexico





Motorola Confidential & Proprietary





2


 









 









trademarks all rights required for the marketing and sale of Products in Mexico through Buyer’s
approved distribution channels.




COMPLIANCE WITH LAWS. Buyer shall sell, market and advertise the Products in accordance with the
Agreement, and all applicable laws, rules and regulations.




CONFIDENTIALITY. The parties agree that this Amendment, (including all exhibit(s) attached hereto)
is confidential and shall not be disclosed to any third party according to the provisions of the
Agreement. The obligations in this Section shall survive termination of this Agreement for two (2)
years.




WARRANTY. Motorola warrants the Baby Phat II phone Products only to the original end user buyers
or lessees in accordance with the Limited Warranty that Motorola ships with such Product, and makes
no representation or warranty of any other kind, express or implied. EXCEPT AS OTHERWISE PROVIDED
IN THE LIMITED WARRANTY, MOTOROLA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL MOTOROLA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR BREACH OF
WARRANTY EVEN IF MOTOROLA HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.




The parties agree that Buyer will fulfill Motorola’s obligations under its Limited Warranty to the
original end user pursuant to the following conditions:




	 	(i)	 	Motorola will provide Buyer with an [*] of Buyer’s purchases of Baby Phat II phone Products
to replace Baby Phat II phone Product returned for any reason that does not require repairs as
set forth in (iii) below;
	 
	 	(ii)	 	The repair service offered by Motorola for the Baby Phat II phone Product excludes cosmetic
refurbishment or replacement of the back cover, antennae, front housing, and/or flip.
	 
	 	(iii)	 	If a non-performing Baby Phat II phone Product is returned that requires a mechanical or
electrical repair that does not require the replacement of any cosmetic part ( back cover,
antennae, front housing, and/or flip), Buyer will return that Baby Phat II phone Product to
Motorola for repair. In cases of repair, Motorola will also be liable for all shipping costs
and custom and/or import duties associated with the delivery to Buyer (at Buyer’s place of
business or the place where the return of the defective Products originated) of the repaired
Products.
	 
	 	(iv)	 	The total kit price for the Baby Phat II phone Product set forth in Exhibit A includes an
adder of [*] for this service arrangement.






	(v)	 	GENERAL. This Amendment constitutes the entire and final expression of agreement between the
parties pertaining to the subject matter hereof and supersedes all other communications, oral
or written, between the parties. No alterations or modifications of this Amendment shall be
binding upon either Buyer or Seller unless made in writing and signed by an authorized
representative of each. If any term or condition of this Amendment shall to any extent be
held by a court or other tribunal to be invalid, void or unenforceable, then that term or
condition shall be inoperative and void insofar as it is in conflict with law, but the
remaining rights and obligations of the parties shall be construed and enforced as if this
Amendment did not contain the particular term or condition held to be invalid, void or
unenforceable. Buyer shall make no assignment of this Amendment or of any right granted
herewith without the prior written consent of Seller. Any assignment of this Amendment is
null and void.







 




	 	 
	* 	Indicates that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.









Motorola/NII Mexico





Motorola Confidential & Proprietary



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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their duly
authorized representatives effective as of the day of ___, 2005.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	SELLER:

MOTOROLA INC.	 	 	 	 	 	BUYER:

NII HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Signature
	 	 	 	 	 	 	 	Signature	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Printed Name:	 	 	 	 	 	Printed Name:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 
	Title:	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	Date:	 	 	 	 	 	Date:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 




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EXHIBIT A



Pricing




1. Baby Phat II Phone




	 	 	 
	 	 	Total Kit Price
	Number of Kits	 	(includes NII Mexico SIM Card)
	[*]

	 	[*]






 




	 	 
	* 	Indicates that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.






Motorola/NII Mexico





Motorola Confidential & Proprietary



5