exv10w12



 





Exhibit 10.12



[FORM OF AMENDMENT NO. 004 TO iDEN INFRASTRUCTURE EQUIPMENT SUPPLY AGREEMENT]



AMENDMENT NO. 004




TO




iDEN INFRASTRUCTURE EQUIPMENT SUPPLY AGREEMENT




BETWEEN




COMMUNICACIONES NEXTEL DE MEXICO, S. A. DE C. V.,




NII HOLDING, INC. (f.k.a. NEXTEL INTERNATIONAL, INC.)




AND




MOTOROLA, INC.



This Amendment No. 004,
dated as of the 30th day of December, 2003, is between
on the one hand, Motorola, Inc., a Delaware corporation, by and through its
Global Telecom Solutions Sector, with offices at 1421 West Shure Drive,
Arlington Heights, Illinois, 60004 (“Motorola”), and, on the other,
Communicaciones Nextel de Mexico, S. A. de C. V., a company with offices at
Blvd. Manuel Avila Camacho No. 36, Piso 9, Colonia Lomas de Chapultepec, Mexico
11000, D.F., and NII Holdings, Inc. (formerly known as Nextel International,
Inc.), a Delaware corporation, with offices located at 10700 Parkridge
Boulevard, Suite 600, Reston, VA 20191 (collectively, “NII”; NII and Motorola
to be collectively referred to as the “Parties”), and amends the iDEN
Infrastructure Equipment Supply Agreement (“Agreement”) dated as of June 30,
2000, as heretofore amended, modified, supplemented, or otherwise revised.
Capitalized terms used herein but not otherwise defined herein shall have the
same meanings given to such terms in the Agreement.



WHEREAS, Motorola and NII entered into the iDEN Infrastructure Supply Agreement
effective as of the 30th day of June, 2000 (hereinafter referred to as the
“Existing Agreement”);



WHEREAS, the Existing Agreement is set to expire by its terms on December 31,
2003;



WHEREAS, Motorola and NII wish to extend the Existing Agreement to allow
sufficient time to negotiate and execute a New Agreement, and it is their
intention to execute the New Agreement as soon as practically possible, pending
execution of a new equipment supply agreement between Motorola and Nextel
Communications, Inc. (“NCI Contract”);



WHEREAS, substantially all of the terms and conditions of the Existing
Agreement shall continue during the interim period prior to the Parties
entering into the New Agreement, except for certain modifications that have
been discussed between the Parties as more fully set forth below; and



WHEREAS, Section 34 of the Existing Agreement requires that all modifications
thereto be in writing and executed by authorized representatives of both
Parties.



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 NII agree
as follows:




	 	 	 
	1.

	 	Terms
	

	 	 
	

	 	Except as set forth herein, all capitalized terms not defined herein
shall have the meanings given






			
	Motorola/Nextel International/Mexico

12/19/03
	 	Amendment 004







Motorola Confidential Proprietary



1








 






	 	 	 
	

	 	to them in the Existing Agreement.
	

	 	 
	2.

	 	Modifications to Existing Agreement
	

	 	 
	

	 	Motorola and NII hereby agree as follows:






	 	(a)	 	Section 28, Term, is hereby amended by substituting the date
“June 30, 2004” in place of the date “December 31, 2003”. In
addition, the following sentence shall be added at the end of such
Section:
	 
	 	 	 	“In the event that the Parties have not entered into the New
Agreement on or before June 30, 2004, the Agreement shall
automatically be extended for up to two additional three-month
periods, through no later than December 31, 2004.”
	 
	 	(b)	 	A new paragraph shall be added at the end of Section 6.3, as
follows:
	 
	 	 	 	“Notwithstanding the above, for purchases made hereunder after
December 31, 2003 and prior to the Parties entering into the new
Supply Agreement, pricing shall continue on the same basis as
calculated under the existing Agreement. When a new Supply
Agreement is entered into, the Parties agree to retroactively
adjust prices, effective to the same date the new pricing applies
to Nextel Communications, Inc. (“Nextel”), provided that a new
Supply Agreement is executed within 120 days of the date an
agreement is executed with Nextel. The Parties may mutually agree
to extend such 120 day period up to an additional 60 days, in the
event the Parties are working in good faith to complete the new
Supply Agreement. Motorola shall credit or invoice Customer the
difference between any amounts paid or owing for such period and
the amounts that would have been due, based upon the new pricing.
In the event that a new Supply Agreement is not entered into within
120 days (or the extended period, if mutually agreed as described
above) of the date an agreement is executed with Nextel, Motorola
agrees to retroactively adjust prices, but only for the calendar
quarter in which the new Supply Agreement is executed. During the
extension period, any pricing commitments throughout the Agreement
shall be determined and adjusted in the same manner as set forth
above.”



	 	 	 
	3.

	 	Clarification Regarding Terms Applicable During Extension
	

	 	 
	

	 	All terms and conditions set forth in the Existing Agreement shall
continue through the extended term provided hereunder. For the
avoidance of doubt:







	 	(a)	 	IPL Pricing. The IPL Pricing, pursuant to Section 6.1.4,
shall continue to be determined in accordance with Exhibit N.
	 
	 	(b)	 	Infrastructure Rebate Program. The Infrastructure rebate
program, pursuant to Section 6.8, applied only through the end of
calendar year 2003. Such program is not extended hereby, and shall
not be applicable during the extension period.
	 
	 	(c)	 	SMP Prices. SMP prices (pursuant to Section 8.4.1)
specifically applicable for calendar year 2003 shall continue during
the extension period. Such prices shall continue to equal the
following, per subscriber: [Argentina $11.98, Brazil $12.07, Mexico
$11.86 and Peru $12.02] (includes $.25 per sub added for Horizontal
C uplift and Nortel patch administration and application support.
	 
	 	(d)	 	Other Pricing. All other pricing shall be in accordance with
the Motorola iDEN Infrastructure Price Book currently in effect, as
updated from time to time by Motorola.



	 	 	 
	4.

	 	New Agreement







			
	Motorola/Nextel International/Mexico

12/19/03
	 	Amendment 004







Motorola Confidential Proprietary



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	 	(a)	 	Good Faith. Motorola and NII agree to negotiate in good faith
and to make all reasonable efforts to finalize and execute the New
Agreement as soon as practicable following Motorola entering into a
new Supply Agreement with Nextel Communications, Inc.
	 
	 	(b)	 	Entire Agreement. The New Agreement, when executed, shall
supersede in its entirety the Existing Agreement as amended by this
Amendment.
	 
	 	(c)	 	Pricing Generally. The Parties intend that the New Agreement
will include pricing substantially similar to the pricing agreed to
with Nextel Communications, Inc. in its new Supply Agreement, where
applicable based upon circumstances, terms and conditions. For
example, certain arrangements with Nextel Communications, Inc.
relating to the manner of funding the development of new features
and products, etc., may not be applicable to NII.



	 	 	 
	5.

	 	Ratification
	

	 	 
	

	 	Except as specifically stated in this Amendment, the Existing Agreement
is, in all other respects, ratified, confirmed and continues in full
force and effect.
	

	 	 
	6.

	 	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.





IN WITNESS WHEREOF, Motorola and NII have entered into this Amendment as of the
Effective Date first written above.


	 	 	 
	MOTOROLA, INC.

	 	NII HOLDINGS, INC
	Global Telecom Solutions Sector
	 	 




	 	 	 	 	 	 	 	 	 
	By:
	 	By:	 	 
	

	
 	 	 	
 
	 	 	 	 
	

	 	 	 	 	 	 	 	 
	Name:
	 	Name:	 	 
	

	
 	 	 	
 
	 	 	 	 
	

	 	 	 	 	 	 	 	 
	Title:
	 	Title:	 	 
	

	
 	 	 	
 
	 	 	 	 






COMMUNICACIONES NEXTEL DE MEXICO, S. A. DE C. V.


	 	 	 
	By:
	 	 
	

	 	
 
	

	 	 
	Name:
	 	 
	

	 	
 







			
	Motorola/Nextel International/Mexico

12/19/03
	 	Amendment 004







Motorola Confidential Proprietary



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	Title:
	 	 
	

	 	
 






			
	Motorola/Nextel International/Mexico

12/19/03
	 	Amendment 004







Motorola Confidential Proprietary




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