Exhibit 10.25
PURCHASE AGREEMENT
between
ANDREW CORPORATION
and
PATH TEL, INC.
Path Tel. Inc. - 16 May 1995
PURCHASE AGREEMENT
between
ANDREW CORPORATION
and
PATH TEL, INC.
This Agreement is made this 1st day of July 1995, by and between Andrew
Corporation, a Delaware corporation, with its offices located at 10500 West
153rd Street, Orland Park, Illinois 60462, hereinafter referred to as "Seller",
and Path Tel, Inc., with its offices located at 6715 Kenilworth Avenue,
Riverdale, Maryland 20737, hereinafter referred to as "Buyer".
Buyer is engaged in the business of providing turnkey negotiation and relocation
services to operators ("Incumbents") of microwave facilities on certain radio
frequency bands referred to as the "2 GHz Band". Seller is in the business of
manufacturing and selling certain telecommunications products that Buyer would
like to purchase on a "reseller type" basis. Buyer would issue Purchase Orders
to Seller for products to be delivered to various Incumbent sites around the
United States. These Purchase Orders would be governed by the terms and
conditions contained in this Agreement. In addition, Seller agrees to sell
certain telecommunications products to Incumbent's when these products
(specially coded or otherwise readily identifiable) have been specifically
recommended by Buyer. These purchases, while not a part of this Agreement, will
be considered part of the Buyer's net volume of orders when determining the
discount levels in this Agreement.
1. DEFINITIONS
A. Products. The "Products" to be purchased and sold pursuant to this
Agreement are the HELIAX(R) cable, connectors, accessories,
HELIAX(R) elliptical waveguide, Microwave Antennas, Pressurization
Products, Towers and Shelters Products, identified in Andrew Catalog
36, or in such subsequent version of the Catalog as may be published
during the term of this Agreement. All Seller's Products will be new
and unused. No refurbished, reconditioned or reused Products will be
provided without the prior written consent of Buyer. Seller reserves
the right to add, delete or revise any Product offered herein upon
sixty (60) days prior written notice to Buyer. Any purchase order
for deleted or revised Products accepted by Seller during this 60
day notice period shall be completed in accordance with all order
requirements, provided such order is scheduled to ship within 60
days after order placement.
B. Preconfigured/Coded Products. In order to simplify Product design,
order entry, and the aggregate order volume tracking of orders by
Incumbents to determine Buyer discount levels, the parties shall
jointly develop coding for standard products packaged in kits
("Kit") and preconfigured non-standard Products. Kits are packages
of standard products that will encompass a complete antenna system
including waveguide and accessories as listed in Exhibit A-3.
Preconfigured nonstandard Products can be added to Exhibit A-3 as
they are developed. Seller may offer Kits and these other jointly
developed products only to Buyer and Incumbents.
C. Ship to Address. The "Ship to Address" shall mean any location
designated by Buyer for the delivery of Products in accordance with
the terms and conditions in this Agreement.
D. Site. The "Site" shall mean Incumbent's installation site.
Path Tel, Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 2 of 10
2. EXCLUSIVITY
Buyer will exclusively recommend Seller's Products. Buyer will reengineer
each Incumbent's microwave link with a replacement system utilizing the
Seller's Products, unless another manufacturer's products are specified by
the Incumbent.
3. PRODUCT PRICING
A. Standard Products. The purchase price of all standard Products sold
under this Agreement are the prices set forth in the then-current
Andrew U.S. and International Price List attached hereto as Exhibit
A-1, less the applicable discount set forth in the Discount Schedule
in Exhibit B except for VALULINE(R) Antennas which are shown at net
prices in Exhibit A-2. The initial discount is based on a forecast
of the total "Net Volume" of Product orders projected to be issued
by Buyer plus Kits and other specially preconfigured or otherwise
readily identifiable products ordered by Incumbents, and accepted
and paid for during an average year during the first three years of
this Agreement. "Net Volume" shall mean the total price of standard
and non-standard Product orders, less freight charges, taxes and
insurance costs, that Buyer purchases from Seller including any Kits
and other specially preconfigured or otherwise readily identifiable
Products that Incumbents purchase from Seller.
The initial discount for the two option years of this Agreement will
be based upon a projection of the average annual net volume of
orders to be placed and paid for during these two years. This
forecast shall be prepared six months prior to the commencement of
this two year period.
The three year and the two year forecasts shall be broken down into
semi-annual periods. These forecasts shall be updated semi-annually
in a separate letter signed by a corporate officer of Buyer and
shall be reviewed with the Seller. In the event Seller makes a
reasonable determination that projected volumes will not be
achieved, Seller shall have the right, upon sixty (60) days written
notice to Buyer, to adjust the Discount Schedule accordingly.
B. Non-Standard Products. Prices for non-standard Products, including,
but not limited to, towers and shelters, shall be quoted in writing
by Seller, based on the Product specifications requested by Buyer.
Quoted prices for such non-standard Products shall remain valid for
a period of sixty (60) days after the quotation date, unless
otherwise agreed to in writing by Seller.
C. Preconfigured/Coded Products. Net prices for Kits shall be
determined by the then current Andrew U.S. Price List for the
specific standard products comprising the Kit less the applicable
discount shown in Exhibit B. Standard and Non-standard products that
are specially preconfigured shall be coded, described and priced at
net as set forth in Exhibit A-3. Seller reserves the right to offer
these Products at the net prices in Exhibit A-3 only to Incumbents
which agree to mutually acceptable terms and conditions within a
reasonable period of time.
D. Product Support. Seller will provide the following product support
to assist Buyer in familiarizing Incumbents in use of Seller's
Products when appropriate:
Path Tel, Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 3 of 10
1. Telephone support from the Seller's Technical Services
Departments.
2. Seller's literature, publications and catalogs.
E. Price List. Seller agrees to notify Buyer in writing of any change,
modification or revision to the Price List at least sixty (60) days
prior to the effective date of the price change. Buyer orders
accepted by Seller during this 60 day notice period shall be exempt
from the price change, provided such orders are scheduled to ship no
later than 90 days after the effective date of the price change.
F. Taxes. Product prices do not include sales, use, privilege, excise
or any other tax, duty, tariff or assessment that may arise from the
sale of the Products pursuant to this Agreement. In the event Seller
becomes liable to pay or bear the burden of any such tax, the amount
shall be added to the purchase price of the Products and shall be
paid for by Buyer. All applicable taxes charged to Buyer shall be
listed as a separate line item on Seller's invoice. A request for
sales tax exemption must be accompanied by a tax exemption
certificate prior to Product shipment.
4. INVOICING AND PAYMENT TERMS
A. Invoicing. Seller shall invoice Buyer for Products upon shipment.
Seller agrees that all invoices shall be submitted in duplicate to
the address designated by Buyer on its purchase order. Each invoice
shall include: (i) Buyer's purchase order number; (ii) Seller's
invoice number; (iii) the quantity and price of Products shipped;
(iv) applicable sales or other tax; (v) applicable freight charges;
and (vi) the total invoice cost.
B. Net Payment Terms. Payment for Products purchased under this
Agreement shall be due within thirty (30) days after date of
Seller's invoice. If Seller deems necessary in its sole discretion,
Seller may require a reasonable down payment concurrent with the
issuance of Buyer's Purchase Orders.
C. Credit Limit. Seller reserves the right in its sole discretion to
establish a credit limit based on financial information provided by
Buyer, as well as other information. This credit limit will place a
ceiling on the amount of the Seller's outstanding order backlog with
Buyer and the amount of payments due from Buyer. In such event,
Seller shall notify Buyer in writing of the amount of the credit
limit. Credit limits may be changed from time to time to reflect
changes in Buyer's financial status.
D. Late Payment Fees. Undisputed invoices that are more than 30 days
past due shall be assessed a service charge of 1.5% per month or the
maximum legal rate permitted by Illinois law, whichever is lower.
Seller reserves the right to reject Buyer's purchase orders or to
withhold shipment of Products if Buyer's account is in arrears, and
Buyer fails to issue payment to bring its account current and/or in
compliance with its credit limits within five (5) days after
Seller's written request for payment. Buyer acknowledges that Seller
retains full security interest in all Products until Buyer renders
payment in full, and upon request, agrees to execute any documents
necessary to perfect Seller's security interest.
Path Tel, Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 4 of 10
5. FORECAST OF TOTAL PCS/PCN MARKET
Within sixty (60) days after the execution of this Agreement, Buyer agrees
to provide Seller forecasts which shall address an overall estimate of the
number of PCS/PCN sites awarded in the total PCS/PCN market, the number of
existing private microwave hops to be relocated and the new frequency, and
the potential elliptical waveguide requirements including quantity and
size.
6. ORDER PROCEDURES
A. Placement. Buyer shall issue a written purchase order referencing
this Agreement for all Products purchased under this Agreement. Each
order shall be signed by Buyer's authorized representative and shall
contain the following information: (i) Buyer's billing address; (ii)
the type and quantity of Products ordered; (iii) the requested
delivery date by line item; (iv) Buyer's ship to address, and (v)
any other information as may reasonably be requested by Seller. All
orders shall be mailed, faxed, or electronically submitted to Seller
at the address stated on page 1 of this Agreement, or to such other
address as Seller may designate in writing to Buyer. Orders for
non-standard Products shall also reference Seller's quotation number
and be accompanied by the written Product specifications requested
by Buyer.
B. Acceptance. Seller shall notify Buyer in writing of its acceptance,
rejection or proposed modification of an order within ten (10) days
after Seller's receipt of the purchase order. In the event Seller
fails to notify Buyer within this time period, the order shall be
deemed to be accepted by Seller and shall be performed in accordance
with the terms of this Agreement.
C. Conditions of Sale. All orders for Products arising herefrom shall
be governed by the terms and conditions set forth in this Agreement.
No preprinted term or condition stated on any Buyer purchase order
or solicitation shall be binding on Seller or become part of any
order, unless expressly agreed to in writing by an authorized
representative of Seller.
D. Change Orders. When any change order causes an increase or decrease
in the purchase order price or the time required for the performance
of any obligation, Seller and Buyer shall negotiate as soon as
possible an equitable adjustment in the purchase order price and/or
delivery schedule. Buyer change orders shall be in writing and
signed by its authorized representative.
7. CANCELLATION OF ORDERS
Buyer may cancel orders for standard Products without penalty, provided
Buyer notifies Seller not less than thirty (30) days prior to the
scheduled delivery date. Orders for standard Products canceled by Buyer
within 30 days of the scheduled delivery date shall be subject to a 20%
cancellation charge. Orders for non-standard Products may be canceled at
any time prior to shipment upon written notice to Seller. Buyer and Seller
agree to promptly negotiate a reasonable cancellation charge for any
non-standard Product order canceled by Buyer. The cancellation charge
shall reimburse Seller for all actual costs incurred by Seller on the
order prior to receipt of the cancellation notice, plus a reasonable
Path Tel, Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 5 of 10
profit. All cancellation charges shall be promptly negotiated and paid by
Buyer within sixty (60) days after the effective cancellation date.
8. SHIPMENT AND DELIVERY
A. Shipping Terms. All Products purchased under this Agreement shall be
packed, packaged and crated in accordance with Seller's standard
commercial practices. Products shall be shipped F.O.B. Seller's
plant, Freight Prepaid and Billed. All transportation charges shall
be billed to Buyer at actual cost and shall be listed as a separate
line item on Seller's invoice. Buyer agrees to pay all such
transportation costs. Title to and risk of loss of the Products sold
to Buyer under Buyer's purchase order shall pass to Buyer upon
delivery of the Products to the common carrier at Seller's plant.
(Title to and risk of loss of products, including Kits, sold to
Incumbents and Clients under their purchase orders shall pass to
them as stated in the Seller's contract with such Incumbents or
Clients.) Adequate access to the Ship to Address and proper
facilities for offloading, staging, moving and handling of items
shall be the responsibility of the Buyer.
B. Delivery Dates. Buyer will endeavor to minimize the different types
of Antennas used. This will allow Andrew to produce larger volumes
of similar antennas that will enhance their availability and
delivery dates. Seller shall make every reasonable effort to comply
with the delivery dates specified in Buyer's purchase orders.
C. Buyer Delayed Shipments. Any request by Buyer to delay shipment of a
completed order for more than thirty (30) days shall result in the
assessment of a storage charge of 1.5% of the invoice price per
month. In addition, on the 31st day of a delayed shipment, title to
the completed Products shall automatically pass to Buyer and Seller
shall invoice Buyer in full for the completed order. Buyer agrees to
pay the invoice in accordance with the payment terms set forth in
Section 4 of this Agreement. Seller shall insure the Products
against risk of loss until the Products are delivered to the Ship to
Address.
9. FORCE MAJEURE
Seller shall not be liable for any delivery delays due to causes beyond
its reasonable control, including, but not limited to, acts of God, acts
of the public enemy, fires, floods, acts of any government, strikes,
embargoes, acts of Buyer, its employees or agents, unusually severe
weather conditions, inability to obtain raw products used in the Products
or any other condition beyond the control and without the fault of Seller.
In the event of any such contingency, Seller shall be given a reasonable
period of time in which to complete the performance of its obligations. If
such contingency continues in effect for a period in excess of ninety (90)
days, either party may cancel the purchase order, or any undelivered
portion thereof, without liability to the other party.
10. FINAL ACCEPTANCE
Buyer shall inspect the Products within thirty (30) days after delivery
and shall notify Seller in writing of any nonconforming Products. Buyer's
failure to notify Seller within this time period or its use of the
Products shall constitute final acceptance of the Products and shall
Path Tel, Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel. Inc.
May 1995
Page 6 of 10
waive all claims of non-conformity of the products, except such claims
governed by the terms of the applicable Product Warranty set forth in
Exhibit C herein.
Any Product rejected by Buyer within the 30 day inspection period shall be
returned to Seller at Seller's sole expense. Buyer agrees to obtain
Seller's written Return Goods Authorization Number prior to returning any
Product purchased under this Agreement. Seller shall replace the rejected
Product in a prompt and reasonable time period and shall pay all
transportation charges to ship the Product replacement to Buyer at the
Site location.
11. WARRANTY
Seller warrants the Products to the Buyer and the Incumbent in accordance
with the terms of the Andrew Limited Warranty applicable to that specific
Product. Copies of the Limited Warranties governing specific Products are
set forth herein in Exhibit C as follows:
A. Seller warrants the structural integrity of its Shelter Products in
accordance with the terms of the Andrew Ten Year Limited Concrete
Shelter Warranty set forth in Exhibit C-1 herein.
B. Seller warrants its Tower Products in accordance with the terms of
the Andrew Limited Lifetime Tower Warranty set forth in Exhibit C-2
herein.
C. Andrew warrants its Microwave Antenna Products in accordance with
the terms of the Andrew Three Year Limited Microwave Antenna
Warranty set forth in Exhibit C-3 herein.
D. Andrew warrants all other Products provided under this Agreement in
accordance with the terms of the Andrew Standard Warranty set forth
herein in Exhibit C-4.
E. Andrew agrees that all warranty repairs shall be performed within a
reasonable time period at Andrew's plant or at such other location
as may be mutually agreed upon by the parties.
F. ANDREW PROVIDES NO PRODUCT WARRANTY OTHER THAN THOSE SET FORTH IN
EXHIBIT C EXCEPT AS TO PATENT INFRINGEMENT. ALL OTHER WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PURPOSE, ARE EXPRESSLY EXCLUDED.
12. PATENT INFRINGEMENT ASSURANCE
Seller shall, at its own expense, settle or defend any claim, suit or
action which may be brought against Buyer and/or the Incumbent for
infringement of United States patents arising out of Buyer's or the
Incumbent's use of Seller's Products. Seller shall pay any final judgement
for damages and costs which may be awarded against Buyer and/or the
lncumbent, provided that Buyer promptly notifies Seller of any such claim,
suit or action and affords Seller complete control of the conduct of such
settlement or defense. Buyer agrees to provide Seller with all available
information regarding such claim, suit or action. Seller may, at its own
expense, elect to procure for Buyer or the Incumbent the right to continue
using the allegedly infringing Products, or replace it with non-infringing
Product,
Path Tel. Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 7 of 10
or modify it so that it becomes a non-infringing Product, or remove it and
repay the purchase price applicable thereto, as well as transportation
costs. This paragraph shall not apply to any infringement arising out of
any feature incorporated into the Product at the request of Buyer or from
the use of the Product for purposes other than as advertised, sold or
intended by Seller. In no event shall Seller's total liability to Buyer
and / or Incumbent under the provisions of this article exceed the
aggregate sum paid to Seller by Buyer for the allegedly infringing
product. The foregoing states the entire warranty by Seller for patent
infringement of the Product and any part of it.
13. LIMITATION OF LIABILITY
Neither Seller nor Buyer shall be liable to the other party, its agents,
employees, subcontractors or customers, for any indirect, exemplary,
incidental, special or consequential damages arising from any action for
breach of contract, breach of warranty, or for any action based on the
tortious acts or omissions of Seller or Buyer. The parties acknowledge
that such lack of liability includes, but is not limited to, loss of
actual or anticipated revenue or profits, loss of actual or anticipated
value of any business, or damage to the business reputation or goodwill of
Buyer or Seller. The protection provided to Seller by this Section 13 will
be incorporated into any Product or Service Agreements between Buyer and
Client/Incumbent.
14. TERM
This Agreement shall commence on the date designated on page 1 of this
Agreement and shall remain in effect for a period of three (3) years from
that date. Two one year option periods are hereby established and Buyer
may exercise each option period by providing Seller with written notice at
least thirty (30) days prior to the start of each option period.
15. TERMINATION OF AGREEMENT
A. Termination for Convenience. Seller or Buyer may terminate this
Agreement for convenience at any time prior to the expiration date
upon six (6) months prior written notice to the other party by
registered or certified mail.
The parties agree that any purchase order accepted by Seller prior
to the effective termination date shall be completed by Seller and
paid for by Buyer in accordance with the terms of this Agreement.
B. Termination for Default. Notwithstanding the foregoing, Seller or
Buyer may immediately terminate this Agreement for default if the
other party:
1) fails to cure a material breach of this Agreement within
thirty (30) days after receipt of written notice describing
such breach;
2) undergoes a substantial change in management, ownership or
controlling interest unless approved in writing by Seller in
advance, which approval will not be unreasonably withheld; or
3) becomes insolvent, files a petition in bankruptcy, is placed
in control of a receiver or makes an assignment for the
benefit of creditors.
Path Tel. Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 8 of 10
4) expresses an intent not to pay Seller's invoices according to
the terms of this Agreement.
Upon termination of this Agreement for default, the non-breaching
party shall have the right to pursue all rights and remedies
available at law or in equity subject to the limitations in this
Agreement. The prevailing party shall be entitled to recover
reasonable attorneys' fees and any other costs incurred in
initiating any legal action or proceeding to enforce the provisions
of this Agreement.
16. CONFIDENTIAL INFORMATION
All data or information provided by Seller to Buyer, or by buyer to
Seller, which the disclosing party identifies as confidential or
proprietary shall be conspicuously marked with a legend affixed to the
front page of the document. Such confidential or proprietary information,
including, but not limited to, technical data or pricing information,
shall be used only in connection with the performance of obligations under
this Agreement and shall not be revealed to any third party without the
express written consent of the disclosing party. The receiving party shall
protect such confidential or proprietary information in accordance with
the terms of a non-disclosure agreement, if applicable, or in accordance
with the safeguards used to protect its own confidential information. All
copies of such information in written, graphic or other tangible form
shall be returned to the disclosing party upon the expiration or
termination of this Agreement.
17. COMPLIANCE WITH LAW
Seller and Buyer agree to fully comply with all applicable laws,
ordinances, codes, rules and regulations governing the performance of any
obligation under this Agreement. Each party shall indemnify and hold the
other party harmless from any liability arising from its breach of this
provision.
18. CORRESPONDENCE
All official notices required under this Agreement shall be deemed validly
delivered when sent by registered or certified mail, postage prepaid, to
the party's principal place of business stated on Page 1 herein, or to
such other address as the party may designate in writing to the other. In
the case of official notices sent by Buyer to Seller, a copy shall be
forwarded to:
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Attn: Director, Corporate Contracts
19. ASSIGNMENT
Neither Seller nor Buyer shall assign, delegate or otherwise transfer by
operation of law this Agreement, or any obligation hereunder, in whole or
in part, without the prior written consent of the other party, such
consent not to be unreasonably withheld.
Path Tel. Inc. - 16 May 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 9 of 10
20. WAIVER OF RIGHTS
The failure of Buyer or Seller to assert any right or remedy upon the
breach of any provision of this Agreement shall not be deemed to be a
waiver of any present or future right hereunder, unless said waiver is
made in writing by an authorized representative of the party.
21. SEVERABILITY OF AGREEMENT
If any clause, paragraph or provision of this Agreement is held to be
illegal, invalid or unenforceable by any court of competent jurisdiction,
such clause, paragraph or provision shall be deemed severed from the
Agreement and shall not affect the validity of the remaining provisions of
the Agreement.
22. GOVERNING LAW
This Agreement shall be interpreted, construed and enforced in accordance
with the laws of the State of Illinois.
23. DISPUTES AND ARBITRATION
Any controversy or claim arising out of or relating to this Agreement,
including the construction, application and termination of this Agreement
which cannot be amicably resolved between the parties, shall be settled by
mandatory arbitration in accordance with the rules of the American
Arbitration Association ("AAA"). The arbitration shall be held in Chicago
and conducted by a panel of three neutral arbitrators each of whom is
knowledgeable of the wireless industry and is appointed in accordance with
AAA rules. The parties acknowledge that the decision of the panel shall be
final and binding with respect to findings of both law and fact, and shall
not be appealable to any court in any jurisdiction. The cost of any
arbitration shall be allocated by the panel.
24. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties and
supersedes all previous oral and written communications, agreements and
understandings between the parties with respect to the subject matter
herein. No change, modification or amendment of this Agreement shall be
binding unless made in writing and signed by authorized representatives of
both parties.
Path Tel, Inc. - 16 May 15 1995
Purchase Agreement
between Andrew Corporation
and Path Tel, Inc.
May 1995
Page 10 of 10
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
through their authorized corporate representatives.
ANDREW CORPORATION PATH TEL, INC.
/s/ William R. Currer /s/ David Schaeffer
- ------------------------------ ------------------------------
Signature Signature
William R. Currer David Schaeffer
- ------------------------------ ------------------------------
Name Name
Vice President Andrew Systems President
- ------------------------------ ------------------------------
Title Title
7-25-95 5/18/95
- ------------------------------ ------------------------------
Date Date
Path Tel, Inc. - 16 May 1995
Amendment One
To Purchase Agreement between
Andrew Corporation and Path Tel, Inc.
Dated 16 September 1996
Whereas, Andrew Corporation and Path Tel, Inc. entered into a Purchase Agreement
on 1 July 1995; and
Whereas, Andrew Corporation and Path Tel, Inc. desire to amend such Agreement to
reflect the name change of Path Tel, Inc. to Path Net Incorporated and to revise
the Discount Schedule, Exhibit B of the Agreement;
Now, Therefore, Andrew Corporation and Path Tel, Inc. agree as follows:
1. Replace the Discount Schedule, Exhibit B of the Agreement, with the attached
Discount Schedule whenever products are purchased for 2 Ghz relocation projects.
2. Change name of the Buyer in the Agreement from Path Tel, Inc. to Path Net
Incorporated, a Delaware Corporation.
3. All other items of the Agreement remain unchanged.
In witness whereof, the parties hereto have executed this Amendment One as of
the date indicated below.
ANDREW CORPORATION PATH TEL, INC.
Signed Signed /s/ David Schaeffer
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Name Name
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Title Title
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Date Date
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PATH NET INCORPORATED
Signed /s/ David Schaeffer
------------------------
Name
------------------------
Title
------------------------
Date
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Amendment Two
To Purchase Agreement between
Andrew Corporation and Path Tel, Inc.
Dated 1 July 1995
Whereas, Andrew Corporation and Path Tel, Inc. entered into a Purchase Agreement
on 1 July 1995; and
Whereas, Andrew Corporation and Path Tel, Inc. desire to amend such Agreement by
revising the Discount Schedule, Exhibit B of the Agreement;
Now, Therefore, Andrew Corporation and Path Tel, Inc. agree as follows:
1. Replace Section 3A of the Agreement with the following effective July 1,
1997. The purchase price of all standard Products sold under this Agreement are
the prices set forth in the then-current Andrew Price List attached hereto as
Exhibit A-l, less the applicable discount set forth in the Discount Schedule in
Exhibit B. The initial discount is based on a forecast of the total "Net Volume"
of Product orders projected to be issued by Buyer plus Kits and other specially
preconfigured or otherwise readily identifiable products ordered by Incumbents,
and accepted and paid for during an average year during the next three years of
this Agreement beginning 1 July 1997 (assumes that Agreement shall be extended
two additional years by Buyer according to Section 14). "Net Volume" shall mean
the total price of standard and non-standard Product orders, less freight
charges, taxes and insurance costs, that Buyer purchases from Seller including
any Kits and other specially preconfigured or otherwise readily identifiable
Products that Incumbents purchase from Seller.
The three year forecast shall be broken down into semi-annual periods. This
forecast shall be updated semi-annually in a separate letter signed by a
corporate officer of Buyer and shall be reviewed with the Seller. In the event
Seller makes a reasonable determination that the three year forecast will not be
achieved, Seller shall have the right, upon sixty (60) days written notice to
Buyer, to adjust the Discount Schedule accordingly.
2. Replace the Discount Schedule, Exhibit B of the Agreement, with the attached
Discount Schedule, effective 1 July 1997, whenever products are purchased for 2
Ghz relocation projects.
3. Delete the old ValuLine(R) Antenna Price List, Exhibit A-2. It is now
included in Exhibit A-l.
4. All other items of the Agreement remain unchanged.
In witness whereof, the parties hereto have executed this Amendment One as of
the date indicated below.
ANDREW CORPORATION PATH NET INCORPORATED
/s/ Donn R. Peterson /s/ David Schaeffer
- ------------------------------ ------------------------------
Signature Signature
Donn Peterson David Schaeffer
- ------------------------------ ------------------------------
Name Name
Business Unit Manager President & CEO
- ------------------------------ ------------------------------
Title Title
3 July 1997 7/7/97
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Date Date