Note: Portions of this exhibit indicated by "[ * ]" are subject to a
confidential treatment request, and have been omitted from this exhibit.
Complete, unredacted copies of this exhibit have been filed with the Securities
and Exchange Commission as part of the Company's confidential treatment request.
Exhibit 10.16
"AMENDMENT AGREEMENT NO. 2"
This Amendment Agreement No. 2 to the FWA PLA and the FWA TASS, dated as of
April 20, 2004 (the "Amendment Agreement No. 2"), is entered by and between
Airspan Communications Limited ("Airspan") and Axtel, S.A. de C.V. ("Axtel")
WHEREAS, Axtel and Nortel Networks Limited ("NN Limited") and Nortel Networks de
Mexico, S.A. de C.V. ("NN Mexico" and, collectively with NN Limited, "Nortel
Networks") entered into a Purchase and License Agreement for FWA Equipment dated
March 20, 2003, which was subsequently amended by Amendment No. 1 dated
September 15, 2003 and by the Change Order dated December 5, 2003 (the "FWA
PLA");
WHERAS, Nortel Networks and Axtel entered into a Technical Assistance
Support Services Agreement for FWA Equipment dated March 20, 2003 (the "FWA
TASS");
WHEREAS, Nortel Networks, Airspan and Axtel entered into an Assignment
and Assumption Agreement dated December 23, 2003, by virtue of which Nortel
Networks assigned all of its rights and obligations under the FWA PLA and the
FWA TASS to Airspan (the "Assignment Agreement");
WHEREAS, Airspan and Axtel (hereinafter referred to collectively as the
"Parties" and individually as a "Party") have been in discussions regarding
several topics under the FWA PLA and the FWA TASS, including the delivery,
volume purchase commitments, prices and payment terms of equipment and services,
with the intent of setting forth their agreements on such topics in an amendment
to the FWA PLA and the FWA TASS;
WHEREAS, the Parties, in light of the foregoing, wish to amend the FWA PLA and
the FWA TASS in accordance with the terms contained herein.
NOW THEREFORE, in light of the foregoing and pursuant to mutual covenants and
agreements of which the Parties acknowledge sufficient consideration, they
hereby agree as follows:
1. DEFINITIONS AND EFFECTIVENESS.
1.1 Capitalized terms not specifically defined in this Amendment Agreement No. 2
shall have the meaning ascribed to them in the FWA PLA and the FWA TASS, as the
case may be.
1.2 The Parties hereby agree that this Amendment Agreement No. 2 shall become
binding on each Party upon its execution.
2. GENERAL AGREEMENTS AND AMENDMENTS TO THE FWA PLA.
2.1 New Purchase Commitment. The Parties hereby agree to cancel Axtel's existing
Purchase Commitment set forth in Sections 1a) and 2a) of Annex H of the FWA PLA,
for the purchase of RSS equipment and Base Stations units for the years 2005,
2006 and 2007, and agree to new Purchase Commitments by Axtel, as follows:
(i) First Commitment. A commitment to purchase and take Delivery of US$[*]
of FWA Equipment, commencing from the date of this Amendment Agreement
No. 2 and ending on December 31st, 2005 ("First Commitment"). The New
Incremental Orders set forth in Section 5 of this Amendment Agreement
No. 2, shall be included as part of Axtel's commitment under this
section.
(ii) Second Commitment. A commitment to purchase and take Delivery of
US$[*] of any of Airspan's products, commencing from January 1st, 2006
and ending on May 1st, 2006 ("Second Commitment"). Any purchases made
by Axtel in an amount in excess of the amount of the First Commitment,
shall be accounted for as an Axtel purchase under the Second
Commitment.
(iii) In order for Airspan to continue its obligation to supply FWA
Equipment beyond 1st May 2006, Axtel will be required to place and
maintain orders of 2000 RSS units a month from 1st February 2006.
(iv) With respect to the commitments mentioned above, in order for Axtel to
take Delivery of the equipment purchased, Airspan shall deliver such
equipment pursuant to the delivery terms set forth in the FWA PLA as
amended herein.
The First Commitment and Second Commitment (hereinafter collectively referred to
as the "New Purchase Commitments") are in addition to the Purchase Commitments
for RSS equipment and Base Stations units for years 2003 and 2004 set forth in
Annex H of the FWA PLA. As of this date, Axtel has already placed orders with
Airspan in quantities and for deliveries that are sufficient to comply with the
required Purchase Commitments for years 2003 and 2004.
2.2 New Payment Terms and Cancellation of Payment Guarantee.
2.2.1 New Payment Terms. The Parties hereby amend the FWA PLA, by agreeing to
the payment terms set forth in this section 2.2:
(i) For any new Orders issued by Axtel after the date of this Amendment
Agreement No. 2 for Delivery of equipment during 2004, Axtel will pay
the Price as follows:
[*] Within five (5) days after the delivery of the Order;
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[*] Upon Delivery of the Product(s).
(ii) For all Orders issued by Axtel for Delivery of equipment after the end
of 2004, Axtel will pay the Price as follows:
[*] Within five (5) days after the delivery of the Order;
[*] Upon Delivery of the Product(s).
2.2.2 Payment Guarantee. Notwithstanding the payment guarantee provisions set
forth in the FWA PLA, the parties hereby agree to cancel Axtel's
obligations set forth in the FWA PLA to provide a payment guarantee (a
letter of credit) to Airspan to secure the payments to be made under the
FWA PLA. Therefore, the Parties hereby agree that from the date of the
execution of this Amendment Agreement No. 2, Axtel shall not be required to
provide to Airspan any type of payment guarantee (including letters of
credit) to secure its payments under the FWA PLA (including to secure the
payments of the New Incremental FWA Equipment mentioned in Section 5 of
this Amendment Agreement No. 2).
2.3 New Method of Payment. The Parties hereby agree that any payments to be
made under the FWA PLA, as amended (including the payments of the New
Incremental Orders), and FWA TASS as amended shall be made when due by wire
transfer (electronic or telegraphic) or by any other form of payment (such
a letter of credits), in immediately available funds, to Airspan's bank
account, as follows:
Bank: [ * ]
Sort Code: 30-99-80
Account Name: Airspan Communications Limited
Account No: [ * ]
Further Instructions: Reference Axtel
P.O. No. ______,
Payment of Invoice No. __________.
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2.4 Delivery of Equipment.
2.4.1 The Parties hereby amend Annex J of the FWA PLA, by agreeing to the
following delivery times for Products ordered under such agreement, as from
the date of this Amendment Agreement No. 2:
(i) RSS Delivery Times: RSS deliveries in 2004 will be delivered as per
Attachment B. RSS deliveries in 2005 shall occur [*] months after
Purchase Order acceptance by Airspan provided that such delivery
profile will not require Airspan to deliver more in a given month than
[*] or less than [*] of the volume of RSS delivered in the previous
month. In the event that a delivery profile is requested by AXtel that
does not meet this criterion, Airspan will make commercially
reasonable efforts to meet the request
(ii) RBS Delivery Times: RBS Delivery Times: RBS deliveries in 2004 will be
delivered as per Attachment B. RBS deliveries in 2005 shall occur [*]
months after Purchase Order acceptance by Airspan provided that such
delivery profile will not require Airspan to deliver more in a given
month than [*] or less than [*] of the volume of RBS modules delivered
in the previous month. In the event that a delivery profile is
requested by AXtel that does not meet this criterion, Airspan will
make commercially reasonable efforts to meet the request
(iii) RSS Delivery Location: RSS shall be delivered at the Airspan
Logistics Operating Center for North America (currently Dallas Texas),
subject to section (iv) below. Airspan reserves the right to
relocate its RSS manufacturing site if necessary to achieve its
current or future business objectives. However, any changes in RSS
manufacturing location should not materially increase AXtel's Mexican
import duty liability.
(iv) Airspan will make commercially reasonable efforts to secure a
Satisfactory Virtual Export Process whereby the RSS equipment will be
delivered at the current RSS manufacturing site (Solectron
Guadalajara) at the same prices set forth in this Amendment Agreement
No. 2, so long as there is no increase in cost to Airspan.
2.4.2 Notwithstanding the foregoing, the Parties have agreed to set special
delivery terms for the New Incremental Orders set forth in Attachment B of
this Amendment Agreement No. 2, and therefore the delivery terms applicable
to such New Incremental Orders shall be those set forth in such Attachment
"B".
2.4.3 Changes in the Payment Terms for Delay in the Delivery of Products. The
Parties hereby agree that the Payment Terms for RSS Equipment and for Radio
Base Station Equipment set forth in this Amendment Agreement No. 2, will be
modified automatically per each Trigger Event (as defined below), as
follows:
Upon the occurrence of a Trigger Event and with respect to Orders (for RSS
and RBS) placed by Axtel after such event, the payment terms for such
Products will be modified automatically, as follows:
(i) The first payment for such equipment (due upon acceptance of the
Order) will be reduced [*].
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(ii) The last payment for such equipment (due upon shipment of the Order)
will be increased in [*]. (for example, after the first Trigger Event
(if this occurs in 2004) the payment terms will be [*] upon acceptance
of the Order (instead of [*]) and [*] upon Delivery (instead of [*]))
Trigger Event: a Trigger Event shall occur if Airspan shall fail to make
Delivery of the Products within 30 days of the due date for Delivery in
accordance with the delivery terms set forth in the FWA PLA (as amended by
this Amendment Agreement No. 2) with respect to three (3) Orders,
regardless whether or not such Orders are placed consecutively; provided
that the 30 day period shall be extended where the failure is caused by
Force Majeure, by the number of days for which the Force Majeure is in
existence.
Immediately upon the occurrence of a Trigger Event, Axtel shall provide
written notice to Airspan that such Trigger Event has occurred. The Parties
hereby agree that if, following the notification by Axtel of a Trigger
Event, Airspan makes Deliveries in the following three (3) consecutive
months without the occurrence of another Trigger Event, the payment terms
applicable for the Orders placed by Axtel after such date shall be those
applicable pursuant the payment terms set forth in section 2.2 of this
Amendment Agreement No. 2.
2.5 New Equipment Prices and Other Fees
(i) The Parties hereby agree that the Prices payable with respect to
equipment purchased under the FWA PLA under Orders placed after the
date of this Amendment Agreement No. 2, will be as set forth in
sections 2.5 and 2.6, and that Annex "F" of the FWA PLA is accordingly
amended with respect to such purchases.
(ii) All prices quoted in this Amendment Agreement No. 2 are in US dollars.
The Prices for the RSS are CIP Dallas, for which a 0.6% charge for
freight and duty will be made to Axtel by Airspan for all orders
placed from the date of this Amendment Agreement No. 2 for RSS to be
delivered in 2004. For Orders for delivery after 2004 the prices paid
will not include the C.I.P charge of 0.6%.
(iii) RSS Equipment Price Reduction. The Parties hereby amend the prices of
the RSS Equipment, as follows:
(a) [ * ] for one F2 RSS Kit.
(b) [ * ] for one F5 RSS Kit (including the RDA Kit).
5
The new RSS Equipment Prices set forth herein are applicable for any new
Order placed by Axtel from the date of this Amendment Agreement No. 2.
(iv) RBS Equipment Price Reduction. The Parties hereby amend the prices of
the Base Stations units, as follows:
(a) For Orders for Delivery in 2004:
(1) [ * ] for one 18B Base Station Unit, without antennas.
(2) [ * ] for one 27B Base Station Unit, without antennas.
(b) For Orders for Delivery after 2004:
(1) [ * ] for one 18B Base Station Unit, without antennas.
(2) [ * ] for one 27B Base Station Unit, without antennas.
The new RBS Equipment Prices set forth herein are applicable for any new
Order placed by Axtel from the date of this Amendment Agreement No. 2.
(v) New PDS Software Upgrade Fee. The Parties hereby amend the FWA PLA, by
modifying the price of ( the FWA Packet Data Software and Hardware
(Cell Site Packet Data Software Activation Fee and two TPM-PDs), as
follows:
(a) For all Orders issued by Axtel under this Amendment Agreement No. 2
for Delivery of the FWA Packet Data Software and Hardware during 2004,
the price shall be as follows:
(1) [ * ] (this price includes the Cell Site Packet Data Software
Activation Fee and two TPM-PDs).
(2) [* ] per each additional TPM-PD card.
(b) For all Orders issued by Axtel under this Amendment Agreement No. 2
for Delivery of FWA Packet Data Software and Hardware after 2004, the
price shall be as follows:
(1) [ * ] (this price includes the Cell Site Packet Data Software
Activation Fee and two TPM-PDs).
6
(2) [ * ] per each additional TPM-PD card.
(c) PDS Software Upgrade Delivery Times: with respect to each Order placed
for PDS Software Upgrade, Airspan shall deliver such PDS Software
Upgrade for Orders placed for Delivery in 2004, within five (5) months
after the acceptance of the respective Order, and for Orders placed
for Delivery after 2004, within four (4) months after the acceptance
of the respective Order. Provided that, Airspan shall be obligated to
deliver only up to 45 PDS Software Upgrade per month, any additional
amount of PDS Software Upgrade scheduled for delivery for such month
shall be delivered in the followings months pursuant this delivery
limit of 45 PDS Software Upgrade per month, unless is otherwise agreed
in writing by the Parties.
(vi) Prices for Spare Parts. The initial Spare Parts ordered in Attachment
B shall be the prices listed in section 6 of Annex F, less a discount
of [ * ].
2.6 Single Product - RSS Equipment. Airspan hereby proposes to develop and
manufacture a new single unit of RSS equipment (the "New FWA RSS Unit"),
and to supply the New FWA RSS Unit to Axtel from April 1st, 2005 (the "New
Equipment Commercial Launch") The purchase and sale of the New FWA RSS Unit
shall be subject to the following terms and conditions:
(i) Specifications, Functionality and Service Quality. As of the date of
this Amendment Agreement No. 2, the Parties have not formally agreed
upon the specifications of the New FWA RSS Unit ("Specifications").
Notwithstanding the foregoing, the New FWA RSS Unit shall have at
least the same form, function and fit of both of the current RSS
Equipment jointly (the F2 and F5 RSS equipment), pursuant the
Specifications provided to Axtel by Airspan and Nortel Networks (as
the former manufacturer).
Accordingly, the Parties agree as follows:
(a) that by April 30, 2004, Airspan shall propose the Specifications to
Axtel. In particular, Airspan will propose a revised RPCU, which may
include a remote battery backup instead of an Integrated Battery
Backup. In accordance with the foregoing, Airspan shall provide to
Axtel the following:
(i) the Specifications of the New FWA RSS Unit;
7
(ii) a list with all the differences between the Specifications of the
current FWA RSS equipment and the New FWA RSS Unit;
(iii) Airspan shall provide the Product Development Schedule, in which
shall be identified all the milestones with its correspondent
target dates.
(b) that by May 31, 2004, or such other date as the Parties may agree to
in writing, Axtel and Airspan shall have agreed in writing upon the
Specifications (the "Agreed Specifications") and the acceptance
procedure to be performed by the Parties under the First Market
Application. The Agreed Specifications and the acceptance procedure
shall then become a part of the FWA PLA,
(c) Airspan shall monthly inform Axtel the advance and/or delays of the
development of the New FWA RSS Unit pursuant the Product Development
Schedule agreed by the Parties. In addition to the foregoing, Axtel
will have the right to visit Airspan's installations in order to
review and evaluate the advances achieved by Airspan in the
development of the New FWA RSS Unit.
(d) Airspan will provide a number of 15 New RSS Units to Axtel by January
30th 2005 in order for Axtel to perform and have completed no later
than March 15th 2005 a First Market Application of the New FWA RSS
Unit before the New Equipment Commercial Launch, The New FWA RSS Unit
shall pass successfully the First Market Application made by Axtel
pursuant the acceptance procedure previously agreed by the Parties.
Deliveries will commence 6 weeks after completion of the FMA
(e) If Axtel considers it necessary, Axtel will have the right to request
Airspan to assist Axtel in a verification office of the New FWA RSS
Unit. Airspan will provide a quote for this service under the FWA TASS
at reasonable costs and prices.
(ii) Price of New FWA RSS Unit and New Packet Data Activation Fee. The
Price of the New FWA RSS Unit will be as follows:
(a) For the New FWA RSS Units Delivered, a Price of [ * ] per New FWA RSS
Unit, provided that Axtel places and maintains Orders such that, by
the last day of a given quarter, commencing January 1, 2005 and ending
December 31, 2005, at least [ * ] RSS units are on hand and scheduled
to be delivered in each the following two calendar quarters. The
payment terms applicable for such Orders, will be:
[ * ] four (4) months before the delivery of the products;
8
[ * ] Upon delivery of the products
For the purpose of clarification, Axtel shall place and maintain
orders of at least [ * ] New FWA RSS Units per calendar quarter
for its delivery from New Equipment Commercial Launch (April 1st
2005) until the end of the second quarter 2006. In the event
Axtel does not place and maintain Orders for such amount of NEW
FWA RSS Units for its respective delivery in any specific
calendar quarter, Axtel shall pay for the equipment purchased in
such quarter, an additional fee of [ * ] Dollars per unit.
With respect to the Orders mentioned in this Section 2.6 (ii)
(a), Axtel hereby acknowledges that such Orders are not
cancelable, notwithstanding the foregoing, both Parties agree
that Axtel will have the right to make changes to such Orders in
quantities and/or delivery times 4 months prior to the originally
scheduled delivery date, without reducing the total amount
(value) of such Orders.
(b) A fee of [ * ] will also be payable as a Packet Data Activation Fee.
The Packet Data ( Activation Fee will include the cost of a data
adaptor or a modem ("Packet Data Activation Unit").
The prices and fee payable under this section shall be paid in
accordance with the provisions of section 2.2.1 above, and the payment
by Axtel shall be as follows:
[ * ] within five (5) days after the delivery of the Order;
[ * ] when Axtel has activated at its customer the packet data
functionality of such New RSS Unit.
Axtel agrees to place and maintain Orders such that, at any given
time after January 1, 2005, at least [ * ] RSS Packet Data
Activation Units are scheduled to be delivered in each the
following two calendar quarters (in the Second and Third Calendar
Quarter of 2005).
The Price of all RSS PD Activations delivered under Orders
received that do not meet these requirements shall be priced at
the price set forth above in this section plus [ * ].
(iii)Airspan shall sell and deliver to Axtel the current F5 RSS Kit instead
of such New FWA RSS Unit, at the prices of the New FWA RSS Unit set
forth in section 2.6 (ii), in the following events:
(a) If the New FWA RSS Unit is not available for delivery after the
New Equipment Commercial Launch in accordance with the Agreed
Specification; or
9
(b) If the New FWA RSS Unit does not satisfactorily pass the First
Market Application performed by Axtel in accordance with the test
protocol agreed by the Parties; or
(c) If the Specifications of the New FWA RSS Equipment are not agreed
by the Parties by May 31, 2004 for a reason not attributable to
Axtel and therefore the New Equipment Commercial Launch of the
New FWA RSS Unit is delayed after April 1st 2005;
The foregoing, until such time as:
(a) the New FWA RSS Units has satisfactorily complied with the
First Market Application; and
(b) the New FWA RSS Unit is Delivered by Airspan pursuant the
Agreed Specification.
(iv) If through no fault of Airspan, Axtel are unable to complete the First
Market Application by March 15th 2005, Airspan shall sell and deliver
to Axtel the current F5 and F2 RSS's kit instead of the New RSS unit,
at the prices set forth in 2.5 (iii), until such time as the First
Market Application is completed.
(vi) If through no fault of Airspan both parties fail to agree the
Specification of the New FWA RSS Unit by 31st May 2004, then Airspan
shall sell and deliver to Axtel the current F5 and F2 RSS's kit
instead of the New RSS unit, at the prices set forth in 2.5 (iii) for
a period of 11 months after agreement on the Specifications.
2.7 Airspan Security Instrument. The Parties hereby acknowledge that, from time
to time, Axtel may make payments to Airspan under the FWA PLA and the FWA
TASS (as herein amended), such that the aggregate amount of those payments
for Orders where the related Equipment has not been Delivered may at times
exceed [ * ] ("Exposure Limit") in respect of Orders that have not been
fully Delivered ("Orders Guaranteed by Airspan").
The Parties further acknowledge and hereby agree that as of the date of
this Amendment Agreement No. 2, Axtel has made such payments to Airspan in
an amount exceeding [ * ].
10
Accordingly, Airspan will cause to be issued in favor of Axtel, at
Airspan's expense, when such Exposure Limit is exceeded, one or more
irrevocable standby letters of credit or bank guarantees (together the
"L/Cs" and each an "L/C"), issued by Airspan's UK bank at Axtel's
satisfaction, for an aggregate amount equivalent to all the amounts paid by
Axtel in excess of the Exposure Limit (the "Excess Exposure Amount").
The Parties further agree that the aggregate value of the L/Cs, as measured
and agreed by the parties at the end of each month, will continue to be
equal or greater than the likely peak Excess Exposure Amount for the
following month. This value will include coverage for Purchase Orders
likely to be Activated in the following month. The parties hereby agree
that a reasonable mechanism is put in place within 10 working days of the
execution of this Amendment Agreement No.2 to establish and maintain this
coverage.
Each L/C will permit Axtel, on or before its expiry date, to draw down the
portion of the L/C applicable to the funds received by Airspan as a
downpayment with respect to the delivery covered by that L/C, upon the
occurrence of any of the following events or conditions:
(i) Airspan applies for or consents to the appointment of, or the taking
of possession by a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property,
(ii) Airspan makes a general assignment for the benefit of its creditors,
(iii) Airspan commences a voluntary proceeding under the bankruptcy,
insolvency or similar laws relating to relief from creditors
generally,
(iv) Airspan fails to contest in a timely or appropriate manner, or
acquiesces in writing to, any petition filed against it in an
involuntary proceeding under the bankruptcy, insolvency or similar
laws relating to relief from creditors generally, or any application
for the appointment of a receiver, custodian, trustee, or liquidator
of itself or of all or a substantial part of its property or its
liquidation, reorganization, dissolution or winding-up.
(v) Airspan fails to Deliver equipment ordered by Axtel under the FWA PLA,
within a period of (30) thirty days after the delivery date applicable
for such equipment, pursuant the terms of the FWA PLA as amended
herein and this Amendment Agreement No. 2, as the case may be;
provided (i) that no later than fifteen (15) days after the date on
which Airspan has failed to make a Delivery, Axtel has provided
written notice to Airspan of such failure, and (ii) that the 30 day
period shall be extended where the failure is caused by Force Majeure,
by the number of days for which the Force Majeure is in existence (if
the Force Majeure continue for more than 60 days, Axtel will have the
right to cancel the respective Order(s) and to collect from the Letter
of Credit all applicable payments paid to Airspan by Axtel for such
equipment).
11
The Parties further acknowledge and hereby agree that as of the date of
this Amendment Agreement No. 2, Axtel has made such payments to Airspan
that in aggregate exceed the Exposure Limit and that Airspan shall, within
fifteen (15) days of the execution of this Amendment Agreement No. 2, issue
and deliver to Axtel one or more L/Cs or bank guarantees ("Initial L/C"),
issued by a bank acceptable to Axtel in its reasonable discretion, in an
amount to be agreed by the parties that is equal or greater than the likely
peak of the Excess Exposure Amount in May, 2004. This will include values
related to the Orders to be Activated at the close by Axtel under the
Attachment B. Such L/C shall be subject to the terms set forth in this
Amendment Agreement No. 2.
3. GENERAL AGREEMENTS AND AMENDMENTS TO THE FWA TASS.
3.1 Change in the Scope of Services under the FWA TASS. The Parties hereby
amend the FWA TASS, by the elimination of Airspan's obligation, set forth
in Section 1.2 of the FWA TASS, to provide the Software Enhancement
Releases in 2005 and in the subsequent years. From the date of this
Amendment Agreement No. 2, Airspan will be obligated only to provide the
Software Enhancement Release for years 2003 and 2004 (the Software
Enhancement Release of year 2004 will be delivered by Airspan in the first
quarter of 2005), as agreed to by both Parties in accordance with the FWA
TASS. If in future Axtel requires specific Product Enhancements, and if
Airspan determines in its sole discretion that it has resources available
to make such Product Enhancements, Airspan shall provide its quotation to
undertake such Product Enhancements at reasonable commercial terms and
conditions.
3.2 New Prices and Payment Terms for Services under the FWA TASS. Pursuant to
the modification of the scope of the Services set forth in Section 3.1
above, the Parties hereby amend the FWA TASS, by modifying the price and
payment terms of the Services set forth in the FWA TASS, as follows:
(i) [ * ], for the Services to be provided by Airspan in year 2005, which
shall be paid by Axtel as follows:
o [ * ] for the first calendar quarter, payable on January 1, 2005;
o [ * ] for the second calendar quarter, payable on April 1, 2005;
o [ * ] for the third calendar quarter, payable on July 1, 2005;
o [ * ] for the fourth calendar quarter, payable on October 1, 2005.
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(ii) [ * ], for the Services to be provided by Airspan in 2006 and 2007,
which shall be paid by Axtel as follows:
o [ * ] for each calendar quarter, payable on the first calendar
day of each quarter.
All payments to be made by Axtel under this section 3.2, shall be made by
Axtel within 30 days after the delivery date of the respective invoice, as
provided in section 3.3 of the FWA TASS.
3.3 New Services under the scope of the FWA TASS. Airspan will provide, at no
additional charge to Axtel, and provided that Axtel is not otherwise in
default of any of its obligations under the FWA TASS or the FWA PLA, the
following Services under the FWA TASS:
(i) Maintenance Releases. Airspan shall provide to Axtel any maintenance
release, patch or fix developed by Airspan during the term of the FWA
TASS.
3.4 Services to be Excluded from the FWA TASS. From year 2005, the following
service will be specifically excluded from the FWA TASS:
(i) The upgrade services for REM. Notwithstanding the foregoing, Airspan
will perform the upgrade services related to REM regarding the release
System Release 14.2.
4. AMENDED AND RESTATED AGREEMENTS.
4.1 Amended and Restated FWA PLA. The Parties hereby agree to use commercially
reasonable efforts to prepare a new amended and restated FWA PLA by July
150, 2004, in which all the terms and conditions of the FWA PLA as modified
by Axtel and Airspan under this Amendment Agreement No. 2 shall be
reproduced and reflected. In this regard, each party will pay for its own
legal and out-of-pocket expenses. In accordance with the foregoing, the
Parties shall incorporate all the agreements and modifications herein
established, by modifying all applicable sections of the agreement and the
annexes of the FWA PLA. In addition to the foregoing, the Parties will
discuss and negotiate, including without limitation, the following issues:
(i) Authorization from Airspan to Axtel to purchase directly from
Airspan's suppliers antennas for the RBS equipment.
(ii) Agreeing the commercial terms whereby Airspan could certify other
suppliers of antennas for RBS equipment.
(iii) Agreeing the commercial terms whereby Airspan could certify up to two
Local Service Suppliers for the performance in Mexico of the repair
and maintenance of RSS equipment.
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(iv) Agree by Q3 2004 to deliver the original Drop Cable Connector (NTEG
99GR)
(v) To review jointly the opportunities for improved reliability and
availability of certain FWA components.
(vi) Local Support and Maintenance Services. Discuss if Airspan shall hire
one employee or representative to be located in the city of Monterrey,
N.L. Mexico, or to have a Spanish speaking Technical FWA Expert in UK.
4.2 Amended and Restated FWA TASS. The Parties hereby agree to use commercially
reasonable efforts to prepare a new amended and restated FWA TASS by July
15, 30, 2004, in which all the terms and conditions of the FWA TASS which
were modified by Axtel and Airspan under this Amendment Agreement No. 2
shall be reproduced and reflected. In this regard, each party will pay for
its own legal and out-of-pocket expenses. In accordance with the foregoing,
the Parties shall incorporate all the agreements and modifications herein
established, by modifying all applicable sections of the agreement and the
annexes of the FWA TASS.
5. NEW INCREMENTAL ORDERS.
5.1 Axtel will purchase the FWA Equipment and FWA Spare Parts (the "New
Incremental FWA Equipment") specified in Attachment "B" this Amendment
Agreement No.2 (hereinafter Attachment "B") by placing incremental Purchase
Orders as scheduled in Attachment "B" (hereinafter the "New Incremental
Orders"). For this New Incremental Orders, the terms and conditions of the
FWA PLA as amended by this Amendment Agreement No. 2 will apply, unless is
otherwise agreed by the Parties in this Section 5.
5.2. In the Attachment "B" is clearly detailed the description of the FWA Spares
Parts.
5.3 Pursuant the terms set forth in Section 18.4 of the FWA PLA, the Parties
hereby agree that such New Incremental FWA Equipment will have special
payment and delivery terms, which are set forth in the Attachment "B" of
this Amendment Agreement No. 2, therefore, the Parties agree that all the
terms and conditions of the FWA PLA (as herein amended) shall apply to the
New Incremental Orders except for those specific delivery and payment terms
referenced in the Attachment "B". Provided that, Axtel will commence to
make the correspondent initial payments to Airspan under such Attachment
"B", only after Airspan has delivered to Axtel the applicable L/Cs as set
forth in the last paragraph of Section 2.7 of this Amendment Agreement No.
2. Notwithstanding the foregoing, the delivery terms of the New Incremental
FWA Equipment shall start from the execution of this Amendment Agreement
No. 2 irrespectively of the date of the applicable payment.
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5.4 The New Incremental Orders shall clearly state their reference to the FWA
PLA and to this Amendment Agreement No. 2.
5.5 The parties hereby agree that the payment terms specified in Attachment B
will apply exclusively for the New Incremental Orders specified in
Attachment B; provided, however, that Axtel, places the New Incremental
Orders according to the schedule specified in Attachment B.
5.6 The New Incremental Orders shall reference this Amendment Agreement No. 2
and the New Incremental Orders are totally binding and non-cancelable,
provided that, any change to the New Incremental Orders shall be made
pursuant the terms set forth in Section 2.7 of the FWA PLA.
5.7 Airspan shall deliver the New Incremental FWA Equipment in accordance with
the delivery schedule set forth in Attachment B of this Amendment Agreement
No.2, provided that Axtel activates the Orders and made the applicable
payments as set forth in the Attachment B of this Amendment Agreement No.
2.
5.8 This Section 5 of the Amendment Agreement No. 2 applies solely to the New
Incremental Orders as defined in Attachment B and shall terminate on
completion of the delivery of the New Incremental FWA Equipment ordered.
6. CONTINUED EFFECT.
6.1 The Parties hereby agree that the present Amendment Agreement No. 2
constitutes an amendment of some of the provisions of the FWA PLA and the
FWA TASS, and except as amended and modified herein, all of the other terms
and conditions of the FWA PLA and the FWA TASS shall remain in full force
and effect.
IN WITNESS WHEREOF, this Amendment Agreement No. 2 is signed as of the date
first above written.
AXTEL, S.A. DE C.V. AIRSPAN COMMUNICATIONS LIMITED
By: /s/ Alberto de Villasante Herbert By: /s/ Eric Stonestrom
--------------------------------- --------------------------
Name: Alberto de Villasante Herbert Name: Eric Stonestrom
Title: Legal Representative Title: Chief Executive Officer
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