EXHIBIT 10.22
FIRST AMENDMENT TO
OPTICAL FIBER SUPPLY AGREEMENT
THIS FIRST AMENDMENT TO OPTICAL FIBER SUPPLY AGREEMENT (this "First
Amendment") is effective as of the 13th day of November, 2001, by and between
COMMSCOPE, INC. OF NORTH CAROLINA, a North Carolina corporation
("CommScope") and FIBERCORE, INC., a Nevada corporation, and its subsidiaries
and affiliates (collectively, "FiberCore").
BACKGROUND STATEMENT
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The parties hereto previously entered into an Optical Fiber Supply
Agreement dated as of December 18, 2000 (the "Supply Agreement"), pursuant to
which FiberCore agreed to supply and CommScope agreed to purchase certain
quantities of single-mode optical fiber during the term of the Supply Agreement.
The parties now desire to modify and amend, in certain respects, the Supply
Agreement, in order to evidence the revised agreement between the parties.
STATEMENT OF AGREEMENT
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NOW, THEREFORE, in consideration of the mutual premises contained herein,
and other good and valuable consideration, the legal sufficiency of which is
hereby acknowledged, CommScope and FiberCore hereby agree as follows:
1. The final sentence of Section 1.1 of the Supply Agreement is hereby
deleted.
2. The first two (2) sentences of Section 6 of the Agreement are hereby
deleted and replaced with the following:
"CommScope agrees to purchase, and FiberCore agrees to sell
single-mode optical fiber, as follows: (i) 119,000 km in 2001
(including previously purchased quantities); (ii) 55,000 km in 2002
and (iii) up to 250,000 km in 2003. CommScope expects to purchase
such quantities of single-mode fiber in accordance with the delivery
schedule set forth on Appendix B and as specified from time to time
in its purchase orders. In addition, CommScope agrees to purchase,
and FiberCore agrees to supply, substantially all of CommScope's
requirements for 62.5 i multimode fiber for 2002 and 2003, with a
minimum purchase commitment for such fiber of 35,000 km for 2002 and
40,000 km for 2003. CommScope's purchases of multimode fiber shall
be in such quantities and for such delivery dates as specified by
CommScope from time to time in its purchase orders. FiberCore will
issue invoices in accordance with actual deliveries for each
calendar month."
3. A new paragraph is hereby added to the end of Section 6, as follows:
"Notwithstanding any other provision of this Supply Agreement,
during the term of this Supply Agreement, CommScope shall have no
obligation to purchase from FiberCore, and CommScope may freely
purchase from third parties: (i) any optical fiber for cable with
respect to which the customer has specified that the optical fiber
must be supplied by another producer; (ii) any optical fiber
requested by the customer with specifications that FiberCore does
not have the technical capability or legal right to produce; (iii)
any optical fiber that cannot be delivered to CommScope to enable
it, exercising commercially reasonable efforts, to meet the time
schedule of its customer; provided that with respect to the first
and third exceptions, CommScope must use a good faith effort to
convince its customers to order, accept and use cable incorporating
FiberCore's fiber products instead of those of another fiber
manufacturer and that with respect to the second exception,
CommScope must use a good faith effort to convince its customers to
order, accept and use Supplier's fiber products meeting the
Specifications instead of those of another fiber manufacturer."
4. Appendix B is hereby deleted in its entirety and replaced with the
attached Appendix B.
5. Appendix D is hereby deleted in its entirety and replaced with the
attached Appendix D.
6. FiberCore hereby waives any default or event of default that has
heretofore occurred as a result of CommScope not purchasing certain quantities
of single-mode fiber as required by the Supply Agreement and specifically
waives, without limitation, any right to payment pursuant to Section 6 of the
Supply Agreement.
7. FiberCore agrees to continue to use its best efforts to sell
CommScope's quantities of single-mode fiber, including without limitation,
quantities purchased by CommScope in the fourth quarter of 2001, to other
customers, and agrees to reduce CommScope's future obligations hereunder, or to
issue credits against future purchases, to the extent such sales are
consummated.
8. This First Amendment is limited as specified and shall not constitute
or be deemed to constitute an amendment, modification or waiver of any provision
of the Supply Agreement except as expressly set forth herein. All other terms
and provisions of the Supply Agreement shall continue in full force and effect
and unchanged and are hereby confirmed in all respects.
9. All capitalized terms used herein without definition shall have the
meaning assigned to such terms in the Supply Agreement.
10. This First Amendment shall be governed by and construed and enforced
in accordance with the laws of the State of North Carolina (without regard to
the conflicts of law provisions thereof). This First Amendment may be executed
in any number of counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the
same instrument.
11. This First Amendment will become effective when signed by all the
parties hereto.
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12. Each party respectively represents and warrants that: (i) it has all
necessary corporate power and authority to execute and deliver this First
Amendment and to perform its obligations under the Supply Agreement, as amended
hereby; and (ii) this First Amendment has been duly executed and delivered.
(Signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed as of the day and year first above written.
COMMSCOPE, INC. OF NORTH CAROLINA
By: ____________________________________
Randall W. Crenshaw
Executive Vice President, Procurement
ATTEST:
By: ______________________________
Frank B. Wyatt, II, Secretary
FIBERCORE, INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
ATTEST:
By: ______________________________
_____________________, Secretary
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APPENDIX B
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PRODUCT QUANTITIES
SINGLE-MODE OPTICAL FIBER:
- --------------------------
Quantities not taken by CommScope in any given month may be carried over to
subsequent months in the then current calendar year.
2001 Quantity
- ---- --------
Q1 13,000 km
Q2 16,000 km
Q3 0 km
Q4 90,000 km
2002
- ----
Q1 - 55,000 km; no required quantities for Q2, Q3 or Q4
2003
- ----
Up to 250,000 km, as ordered on purchase orders submitted by CommScope from time
to time
MULTIMODE FIBER - 62.5 [mu]
- ---------------------------
2002
- ----
Subject to the limitations in the Supply Agreement, CommScope will offer to
purchase substantially all of its requirements for 62.5 [mu] multimode fiber
from FiberCore.
2003
- ----
Subject to the limitations in the Supply Agreement, CommScope will offer to
purchase substantially all of its requirements for 62.5 [mu] multimode fiber
from FiberCore.
APPENDIX D
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PRODUCT PRICING
- --------------------------------------------------------------------------------
2001 - Q1, Q2 2001 - Q4 2002 2003
---- ------ ---- -- ---- ----
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Single-mode Optical $38/km $30/km TBD* TBD*
Fiber
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Multimode Optical Fiber N/A N/A TBD* TBD*
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- --------------
*FiberCore to provide market competitive pricing in accordance with the terms of
the Supply Agreement.