exv10w3w2



 






Exhibit 10.3.2



*** CERTAIN CONFIDENTIAL INFORMATION CONTAINED

IN THIS DOCUMENT (INDICATED BY ASTERISKS) HAS

BEEN OMITTED AND FILED SEPARATELY WITH THE

SECURITIES AND EXCHANGE COMMISSION PURSUANT

TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER

17 C.F.R. SECTIONS 200-.80(B)(4), 20083 AND 230.406




AMENDMENT NO. 8 TO THE AMENDED AND RESTATED

SYSTEM EQUIPMENT PURCHASE AGREEMENT




     THIS AMENDMENT NO. 8 (this “Amendment” or “Amendment No. 8”) is made and entered into by and
between Cricket Communications, Inc., a Delaware corporation (“Owner”) and Lucent Technologies
Inc., a Delaware corporation (“Vendor”), collectively (the “Parties”) and is effective as of
October 1, 2005 (the “Amendment No. 8 Effective Date”).



RECITALS




     A. WHEREAS, Owner and Vendor are parties to that certain Amended and Restated System Equipment
Purchase Agreement, dated as of June 30, 2000 (the “SEPA”), as amended by Amendment No. 1,
effective March 22, 2002 (“Amendment No. 1”), Amendment No. 2, effective March 22, 2002 (“Amendment
No. 2”), Amendment No. 3, effective March 22, 2002 (“Amendment No. 3”), Amendment No. 4, effective
September 10, 2002 (“Amendment No. 4”), the Letter Agreements dated September 30, 2002 and December
30, 2002 (the “Letter Agreements”), Amendment No. 5, executed on September 23, 2003 (“Amendment No.
5”), Amendment No. 6 effective February 4, 2004 (“Amendment No. 6”) and Amendment No. 7 effective
January 1, 2005; The SEPA, Amendment Nos. 1-7 and the Letter Agreements are collectively referred
to herein as (the “Contract” or “SEPA”).



     B. NOW, THEREFORE, incorporating the Recitals herein, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, Vendor and Owner agree as follows:



1. EFFECTIVE DATE AND CONTRACT TERM EXTENSION




This Amendment shall become effective as of the Amendment No. 8 Effective Date stated above. The
definition of “Contract Term” in Section 1.1 is hereby amended in its entirety to read as follows:



“Contract Term” means the period commencing on the Effective Date of the original Contract,
September 20, 1999, and ending September 30, 2008, unless terminated earlier in accordance with the
terms and conditions hereof, or unless extended by the mutual written consent of the parties
hereto.”



2. SCOPE



Except as expressly modified herein, the terms of the SEPA, including all attachments, shall remain
in full force and effect. To the extent there may be any conflicts as related to the subject
matter herein, the documents shall control and take precedence in following order: (a) this
Amendment; (b) the SEPA; and (c) attachments to the SEPA.



 









 








	 	 	 
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All capitalized terms not otherwise defined herein shall have the same meaning and effect as
in the SEPA.



3. AGREEMENT MODIFICATIONS




3.1 Scope and Purchase Commitment: 



This Amendment No. 8 reflects the agreement between the Parties with respect to upgrading the
Equipment and Software in Owner’s Amendment No. 8 Existing Markets and Owner’s New Markets.
“Amendment No. 8 Existing Markets” means all Markets previously awarded to Vendor and for which
Owner’s System operates with Vendor’s Products as of the Amendment No. 8 Effective Date. “New
Markets” means any Market of Owner, whether existing now or in the future, other than the Amendment
No. 8 Existing Markets.



Owner commits to purchase Products and Services from Vendor over a three-year period (effective
from October 1, 2005 to September 30, 2008, referred to herein as the “Amendment No. 8 Purchase
Commitment Term”) totaling not less than [$119,000,000] before potential credits to be earned by
Owner pursuant to Section 3.5 below (the “Amendment No. 8 Purchase Commitment”).



All purchases of Products by Owner under this Contract, and purchases by Owner’s Affiliate under
any separate agreement entered into between Vendor and such Owner’s Affiliate on terms similar to
this Contract, during the Amendment No. 8 Purchase Commitment Term (an “Affiliate Contract”) shall
be credited toward the Amendment No. 8 Purchase Commitment under the conditioned as stated below.



All purchases by any Affiliate of Owner under a separate Affiliate Contract with Vendor shall be
credited toward the Amendment No. 8 Purchase Commitment, except to the extent that any such
purchases are made toward satisfaction of any separate purchase commitment contained in such
Affiliate Contract. All purchases under such Affiliate Contract shall first be applied to such
purchase commitment to Vendor, if any, in such Affiliate Contract, and after satisfaction of such
purchase commitment, then all additional purchases in excess of such purchase commitment under the
Affiliate Contract shall be credited toward the Amendment No. 8 Purchase Commitment.
“Affiliate,” means any entity that is greater than fifty percent (50%) owned, either
directly or indirectly, by Owner, and such affiliate shall not otherwise be partially owned or
controlled by any vendor in competition with Vendor.


Owner shall not have failed to satisfy the Amendment No. 8 Purchase Commitment to the extent
of any of the following: (i) Vendor’s rejection of any purchase order, where such Purchase Order is
in compliance with the terms and conditions of the applicable contract (i.e., this Contract or an
Affiliate’s Contract with Vendor), provided that Owner or the Affiliate, as applicable, is not in
arrears in its payments under such contract and is not in material breach of such contract; (ii)
Vendor’s failure, which failure shall be solely due to 


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Vendor’s actions or inactions, to timely
deliver the Products in accordance with the delivery intervals set forth in Vendor’s applicable
quotes; (iii) the Products failing to substantially conform to the applicable Specifications, and
Owner or Affiliate, as applicable, has elected to reject such Products on the basis of such
non-conformance; or (iv) payments for Products or Services received by Owner or the Affiliate, as
applicable, that are not yet due and payable pursuant to the terms of the applicable contract.



3.2 Upgrades to Amendment No. 8 Existing Markets:



Upgrades to Systems in Owner’s Amendment No. 8 Existing Markets may include, at Owner’s election,
(a) Enhanced Cellular Processor (“ECP”) Software Maintenance Releases *** at the prices set forth
in Attachment A to this Amendment No. 8, before credits, where Attachment A identifies that
hardware and software required based on Vendor’s analysis of Owner’s network data provided by Owner
to Vendor as of this Amendment No. 8 Effective Date, in order to install and operate such Software
Maintenance Releases, and (b) Vendor’s data solution (“EvDO”) Rev 0 and Rev A at the prices set
forth in Attachment C to this Amendment No. 8, before credits. In the event that additional
hardware or software elements not included under this Amendment No. 8, including attachments
hereto, are required to be installed in an Amendment No. 8 Existing Market in order for such Market
to be upgraded to and operate with such Software Maintenance Releases, Vendor shall supply such
hardware and software to Owner ***. Notwithstanding the preceding sentence, should Owner’s network
data prove *** then Owner shall be ***.



Deployment of *** will occur ***. MSC upgrades required to support Colorado Springs are as
described in Attachment B.



3.3
EvDO Rev 0/Rev A — E&I Pricing (Existing Markets):



Engineering and Installation charges applicable to the deployment of EvDO Rev 0 and Rev A are set
forth in Attachment C to this Amendment No. 8.



3.4 Loan of ***:



Owner
and Vendor shall mutually agree on a delivery schedule for the *** to be ordered by Owner. From
the date of delivery until the later of July 31, 2006 or two months after the date that Vendor ***
shall provide ***, or the equivalent ***. Should (i) *** not be installed by Vendor in all
Existing Markets, and such installation delay within such Existing Market was due solely to
Vendor’s actions or inactions, or (ii) should the *** not perform therein in accordance with Exhibit I by *** then Owner and Vendor shall ***. Should
Owner ***.





 




			
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3.5 Credits: 





3.5.1 Earned Credits:




(a) At such time during the Amendment No. 8 Purchase Commitment Term that Owner together with
all Affiliates make a total of *** in purchases (net of credits, if any applied) under this
Contract and/or any Affiliate Contracts, then Owner and the Affiliates collectively shall
earn *** in credits under this Contract. For every additional *** (net of credits, if any
applied) collectively purchased as applicable under this Amendment No. 8 and/or any Affiliate
Contracts, as applicable, Owner and its Affiliates collectively shall earn an additional ***
in credits under this Contract. ***



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Net Purchases*
	 	 	 	Credits Earned
	 	 	 	Cumulative Credits Earned
	 

	 	 
	 	 	 	 
	 	 	 	 
	 

	 	***
	 	 
	 	***
	 	 
	 	***







 




* “Net Purchases” means all gross purchases, minus any sales tax included in such amounts,
minus all credits earned and applied to such purchases as designated by Owner.




(b) In addition, should Owner purchase Vendor’s Anypath Messaging for a minimum of *** in
Equipment and Software (excluding Services), Vendor shall provide additional credits of ***
to the above credits of ***, bringing total potential credits available to Owner of ***.
Vendor’s Anypath Messaging configuration is per Attachment D to this Amendment No. 8.




3.5.2 Application of Owner’s Credits:




Credits earned may be applied as designated by Owner in writing towards Owner’s then
outstanding accounts receivable balance with Vendor. Earned credits may be applied toward
Product purchases for Amendment No. 8 Existing Markets or New Markets. Notwithstanding the
above, upon the earlier of Termination of the Contract or expiration of the Contract Term,
including any extension thereof, ***.



3.6 ARMF (TSS/BRSS/Mobility RTSA/INS RTSA/RES/OFS) Pricing:



Vendor’s standard ARMF fee is *** per ECP as of the Amendment No. 8 Effective Date. In
consideration in part of Owner’s Amendment No. 8 Purchase Commitment, Vendor pricing for ARMF for
all Markets shall be discounted as follows:





 




			
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	Calendar Yr	 	Current Pricing/ECP	 	Discount	 	Revised Pricing /ECP
	2005

	 	***
	 	***
	 	***
	2006

	 	***
	 	***
	 	***
	2007

	 	***
	 	***
	 	***
	2008

	 	***
	 	***
	 	***






Upon Owner’s Commercial Service Launch Date ***.



3.7 New Market Pricing — 3G-1X: 



Pricing for New Markets shall be per Attachment C. In connection with Owner’s deployment of
Systems in New Markets, Vendor shall provide to Owner, at the time of purchase, ***.



3.8  Attachments:




The following Attachments are hereby incorporated by reference herein:




Attachment
A: Existing Markets — Upgrades ***

Attachment B: MSC Upgrades to Support Co. Springs

Attachment C: New Market Pricing and EvDO Rev 0 and Rev A Pricing

Attachment D: AnyPath Voice Messaging






 




			
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IN WITNESS WHEREOF, the authorized representatives of the parties hereto have executed this
Amendment No. 8 on the dates set forth below.



	 	 	 	 	 	 	 	 	 
	OWNER	 	 	 	VENDOR
	 
	 	 	 	 	 	 	 	 
	Cricket Communications, Inc.	 	 	 	Lucent Technologies Inc.
	 

	 	 	 	 	 	 	 	 
	By:

	 	/s/ Glenn Umetsu
	 	 	 	By:
	 	/s/ Gerald T. Kafaro
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	Glenn Umetsu
	 	 	 	Name:
	 	Gerald T. Kafaro
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	EVP & CTO
	 	 	 	Title:
	 	Sales Vice President
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	October 5, 2005
	 	 	 	Date:
	 	October 5, 2005






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