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.
This Purchase and License Agreement for FWA Equipment (the "Agreement")
dated as of December 28, 2004 (the "Effective Date") is entered by and among
Airspan Communications Limited ("Airspan"), and Axtel, S.A. de C.V.
("Axtel" and, together with Airspan, the "Parties"), is effective from the
Effective Date and shall continue in effect thereafter during the Term.
References to "days" shall mean calendar days, unless otherwise specified.
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 "Original FWA PLA");
WHEREAS, Nortel Networks and Axtel entered into a Technical Assistance
Support Services Agreement for FWA Equipment dated March 20, 2003 (the
"Original 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 Original FWA PLA and the
Original FWA TASS to Airspan (the "Assignment Agreement");
WHEREAS, the Parties entered into an Amendment Agreement No. 2, dated as
of April 20, 2004 (the "Amendment No. 2"), in order to confirm their mutual
intention to amend and restate the Original FWA PLA and the Original FWA TASS,
pursuant the terms set forth in such Amendment;
WHEREAS, Axtel issued certain purchase orders for the supply of equipment
Products and related services pursuant the terms and conditions set forth
in the Amendment No. 2, such Products and Services ordered under such
purchase orders shall be subject to the terms and conditions set forth in this
Agreement as per the terms set forth in Section 19 below;
WHEREAS, it is the intention of the Parties to amend and restate the Original
FWA PLA as set forth herein;
NOW THEREFORE in consideration for the mutual premises contained herein, the
Parties hereby covenant and agree as follows:
1. Definitions, Preamble, Purpose And Schedules
1.1 Unless otherwise expressly indicated, the following definitions shall
apply to this Agreement and its Annexes:
"Concession" means any concession, license, permit or the like
(including any additions or amendments thereto) granted and issued by
the governmental authorities of Mexico as of the Effective Date or
during the Term in favor of Axtel that are legally required under
applicable laws for operation of the Products sold hereunder and
Axtel's networks in Mexico.
"Deliver" and "Delivery" shall have the meaning assigned to such term
in the Annex "E" of this Agreement.
"Excess Products" shall mean with respect to FWA RSS Products ordered
by Axtel in any given month, the FWA RSS Products that exceed the
greater of: (i) 3,000 FWA RSS Units or (ii) 50% more of the amount
of FWA RSS Units ordered by Axtel for delivery in the prior month
(for example if Axtel orders 3,000 RSS units for delivery in July and
12,000 RSS units for delivery in August, the Excess Products for
August would be 7,500 RSS units (amount comes from 3,000 of the prior
month plus the 50% of such amount (1,500). The result is 4,500 so the
Excess Product are 7,500 in order to complete the 12,000 units).
"Force Majeure Event" means the occurrence of fire, casualty,
explosion, lightning, accident, war (declared or undeclared), armed
conflict, civil disturbance, riot, Act of God, the enactment,
issuance, or application of any law, local by-law, regulation, or
executive, administrative, or judicial order, acts (including delay or
failure to act) of any governmental authority, or any other cause or
causes (whether of the foregoing, nature or not), or any other similar
or different occurrence, which cause or occurrence is beyond the
reasonable control of the affected party and whether or not
foreseeable by such party
"FWA Business" means, among other things, the know-how and licenses
that would allow a third party to manufacture and support base station
equipment, Axtel premises equipment, remote element manager, system
software and installation toolsets, that combined provide a fixed
wireless access solution operating in the 3.5 GHz spectrum using TDMA
technology.
"Hardware" means Airspan machine, equipment or component, but not
including the software.
"Local Airspan Affiliate" means any person or entity established prior
to or during the Term in Mexico, more than fifty percent (50%) of
whose voting shares or outstanding capital stock is owned or
controlled (directly or indirectly) by Airspan or an affiliate of
Airspan.
"Products" means any Hardware, Software or Third Party Vendor Items
provided under this Agreement, which are further described in Annex C
hereto.
"Services" means the activities, which may be undertaken by Airspan
pursuant to an Order, including but not limited to, consulting,
business planning, network planning and analysis.
"Site" means a location designated by Axtel at which the Products are
to be installed and the Services are to be performed.
"Software" means computer programs or firmware which is owned or
licensed by Airspan, its parent or one of its subsidiaries or
affiliates, and is copyrighted and licensed, not sold. Software
consists of machine-readable instructions, its components, data,
audio-visual content (such as images, text, recordings or pictures)
and related licensed materials including all whole or partial copies.
"Software Scripts" means the high level overlay of the Radio Element
Manager (REM) software that is either run on demand or scheduled and
typically collects, post processes or interprets data for operational,
installation, commissioning and maintenance purposes. The Software
Scripts do not include REM daemons or REM Graphical User Interface
screens (GUI).
"Specifications" means, with respect to Products and/or Services, the
technical specifications set forth in Annex D hereto, which describe
or explain the standard functional capabilities and/or requirements
for such Products and/or Services.
"Taxes" means all federal, state, provincial, local, foreign, gross
income, gross receipts, sales, use, value added, stamp, levies,
customs duties, franchise, withholding, excise, real or personal
property taxes, registration charges and all other similar taxes.
"Term" means three (3) years and three (3) months, commencing on the
Effective Date, provided that the Term may be extended for subsequent
one (1) year periods, subject to the Parties agreeing on mutually
acceptable commercially reasonable terms and conditions, where
"commercially reasonable" shall mean terms and conditions which would
be expected to be found in a comparable contractual arrangement
between arms' length parties, acting without other economic constraint
or influence, of similar size and financial situation for products
and/or services similar or comparable to those under this Agreement,
including, without limitation, price and gross margins, and delivery
lead times, capital investment required and credit quality of the
buyer; and provided, further, that, solely for the period prior to any
sale of
-2-
the FWA Business by Airspan to an unrelated third party, (i) twelve
(12) months prior to the end of the Term as then in effect, the
Parties shall enter into negotiations to determine such mutually
acceptable commercially reasonable terms and conditions, (ii) if
agreement on such terms and conditions is not reached by the date that
is nine (9) months prior to the end of such Term, such determination
shall be submitted to arbitration pursuant to the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
then in force, such proceedings to take place in the English language
in the City of Miami, Florida, before a panel of three (3) arbitrators
appointed in accordance with the aforementioned rules, (iii) if such
arbitration has not resulted in a determination on or before the end
of the Term as then in effect, the terms and conditions of this
Agreement as in effect during such Term shall be deemed to continue
in effect until such a determination is reached, at which time such
determination shall be applied retroactively to the end of such Term,
(iv) if the terms and conditions determined by such arbitration are
acceptable to Axtel but are not accepted by Airspan, then the
arbitrators shall determine the price at which they believe the FWA
business would be sold in an arms length transaction by parties acting
without other economic constraint or influence, (v) Axtel shall have
the right to purchase the FWA Business at such price, and (vi) if the
Axtel elects not to purchase the FWA Business at such price, then
Airspan shall have no continuing obligation to Axtel beyond the terms
of this Agreement as then in effect.
"Third Party Vendor Items" includes "Third Party Hardware" and "Third
Party Software" and means any non-Airspan hardware and/or software
supplied to Axtel under this Agreement.
1.2 Certain additional terms and expressions are defined in particular
Sections of this Agreement.
1.3 Words (including words defined herein) indicating the singular only
shall also include the plural and vice-versa where the context
requires.
1.4 Words indicating the masculine only shall also include the feminine
and vice-versa where the context requires.
1.5 The preamble shall form an integral part of and shall be incorporated
in this Agreement as if herein recited at length.
1.6 Airspan and Axtel agree on all of the terms and conditions regarding
the supply of the Products and Services as set forth in this
Agreement.
1.7 The following Annexes to this Agreement are expressly herein
incorporated by reference and shall form an integral part of this
Agreement:
Annex A - Intentionally Left in Blank
Annex B - Change Order Procedures and Form of Change Order
Annex C - Description of Products
Annex D - Product Specifications
Annex E - FWA Order Procedure
Annex F - FWA Prices
Annex G - Warranty Terms and Warranty Services
Annex H - Acceptance Procedure New FWA RSS F6 Unit
Annex I - Intentionally Left in Blank
Annex J - Products Delivery Times
Annex K - Minimum Purchase Commitment
1.8 In the event of any discrepancy or inconsistency between this
Agreement and any of its Annexes, the terms and conditions of this
Agreement shall prevail to the extent of any such discrepancy or
inconsistency.
-3-
1.9 Any amendment, modification or addendum to this Agreement shall be
made making specific reference to the provision(s) to be amended,
modified or added and shall have to be made in writing signed by all
Parties hereto. All other provisions not specifically referred to in
such amendment, modification or addendum shall remain unchanged and in
full forced and effect.
2. Orders and Order Procedure
2.1 Axtel may acquire Products or Services by: (i) issuing a written
purchase order, signed by an authorized representative, or (ii) if
Axtel is enrolled in any then current Airspan electronic commerce
program, by submitting electronic orders (collectively, "Orders").
2.2 All Orders shall reference this Agreement and shall comply with the
Order Procedure attached as Annex E hereto. Orders are totally binding
and non-cancelable, unless is otherwise set forth in this Agreement.
2.3.1 All Orders will be governed by and cannot alter the terms and
conditions of this Agreement. In order to be valid, all Orders must be
accepted by Airspan through a written or electronic communication.
Airspan shall accept such Order within the next ten (10) business days
after delivery thereof, if such Order is in compliance with this
Agreement (prices and descriptions) and no additional terms and
conditions have been imposed and provided further Airspan has not
exercised its rights of termination under section 16 of this
Agreement.
2.3.2 Axtel will be required to issue Orders to Airspan for delivery of
Products in accordance with Annex J no sooner than 20 weeks prior to
the delivery date of the Products ordered, Airspan may, however, in
its sole discretion, agree to accept an Order in accordance with this
Agreement if it is issued by Axtel later than such date.
2.3.3 Furthermore Airspan will have the right, at its option, either to
cancel an Order or to postpone delivery of Products until the first
payment is received, without any responsibility to the Parties, only
if Airspan has not received from Axtel the first payment mentioned in
Section 5.3 below, at least sixteen (16) weeks prior to the scheduled
delivery date of the Products ordered under such Order and if Airspan
elects to postpone the delivery, the 16-week interval may be
recalculated by Airspan from the date it receives the downpayment.
2.3.4 For the avoidance of doubt, the Parties agree that Airspan shall not
be obligated to start performing under any Order until Axtel complies
with the provisions of this Section 2.3. In the event Airspan does not
accept an Order in accordance with this Section 2.3, it shall promptly
return to Axtel any payments made by Axtel with respect to such order,
if any.
2.4 The implementation schedule, responsibility matrix and any other items
which may be necessary for the performance of Airspan' obligations
hereunder shall be mutually agreed upon between the Parties and
included as exhibits to the Order. Such exhibits shall be deemed
incorporated into this Agreement by this reference.
2.5 Intentionally Left in Blank.
2.6 The prices set forth in Annex F and reflected in each Order are based
on anticipated delivery and performance schedules and specifications
incorporated in such Order.
2.7 Any changes to this Agreement or an Order initiated by Axtel or
Airspan after the Effective Date resulting in adjustments to process,
job schedule, contract price or other requirements thereof may be
cause for adjustment by Airspan to the prices and to the relevant
delivery and performance schedules set forth therein. Any such
adjustment shall be detailed in a change order, a form of which is
attached hereto as Annex B ("Change Order"). If the Change Order
affects any Products for which Airspan has commenced manufacturing or
has shipped or any
-4-
Services for which Airspan has commenced performance, the adjustment
of the price shall include reasonable, documented charges incurred by
Airspan related thereto. No such changes shall be performed until a
Change Order has been executed by authorized representatives of the
Parties.
2.7.1 A Change Order may be used to increase the amount of Products and/or
Services ordered or to change the delivery schedule of the Products
ordered thereunder, taking in consideration the following:
(i) The delivery of [ * ] of the relevant Products ordered shall
not be rescheduled for more than [ * ].
(ii) The delivery of the [ * ] of the relevant Products ordered
shall not be rescheduled for more than [ * ].
(iii) The delivery of the remaining [ * ] of the relevant
Products ordered shall not be rescheduled for more than
[ * ].
2.8 By enrolling in any Airspan' electronic commerce program, Axtel agrees
to comply with the terms of such program. Axtel agrees that all
electronic Orders issued are equivalent to a written Order, are
governed by the terms and conditions of this Agreement and that in the
event of any conflict between this Agreement and the information
contained in Axtel's or Airspan' electronic commerce website, this
Agreement governs. Axtel is responsible for the use and protection of
all electronic commerce passcodes provided by Airspan and agrees that
all Orders submitted using such passcodes are valid and binding Orders
authorized by Axtel. Airspan shall have no liability to Axtel due to
Axtel's failure to access Axtel's or Airspan's electronic commerce
website or errors or failures relating to its operation.
3. Delivery Terms
3.1 Airspan shall Deliver Products, for which an Order has been accepted
by Airspan in accordance with section 2, in accordance with the timing
set forth in Annex "J" of this Agreement. The delivery times shall
commence after Order acceptance as specified in Section 2.3 of this
Agreement, provided that Axtel shall establish in the Order the
applicable delivery time for the Products ordered thereunder in
compliance with the times set forth in Annex "J" of this Agreement, on
the understanding that the parties may by mutual agreement establish
in such Orders longer delivery times.
3.1.1 Airspan shall Deliver the Products at the applicable Airspan'
factory, except for RSS equipment, which shall be delivered pursuant
the terms set forth herein below.
3.2 RSS Delivery Location: RSS shall be delivered at the Airspan Logistics
Operating Center for North America (currently Laredo, Texas), subject
to section 3.3 below.
3.3 Virtual Export Import Process. The Parties will make commercially
reasonable efforts to perform a Virtual Export-Import Process whereby
the RSS equipment will be delivered at the current RSS manufacturing
site (Solectron Guadalajara) at the same prices set forth in this
Agreement.
3.4 In the event of delay, exclusively attributable to Airspan, in
delivering the Products (except for the Excess Products) as per the
applicable delivery times set forth in Annex "J" of this Agreement and
in lieu of any other damages arising from such delay, Airspan shall
pay Axtel, one percent (1.0%) of the price of the Products not
delivered of the relevant Order per each day of delay, up to a maximum
of fourteen percent (14%) of the price of such Products not delivered.
The Parties mutually acknowledge that the aforesaid damage amounts are
reasonable in light of the anticipated actual harm which might be
caused by any delay or failure
-5-
in Delivery of the Products and the difficulty of ascertaining
damages. Instructions given by Axtel to Airspan to correct faulty work
or to repair or replace Products shall not constitute a waiver of the
damages set forth herein.
3.4.1 In the event of delay of more than four (4) weeks, exclusively
attributable to Airspan, in delivering the Excess Products as per the
applicable delivery times set forth in Annex "J" of this Agreement and
in lieu of any other damages arising from such delay, Airspan shall
pay Axtel, one percent (1.0%) of the price of the any Excess Products
not delivered of the relevant Order per each day of delay (after such
four (4) weeks period), up to a maximum of fourteen percent (14%) of
the price of such Excess Products not delivered. The Parties mutually
acknowledge that the aforesaid damage amounts are reasonable in light
of the anticipated actual harm which might be caused by any delay or
failure in Delivery of the Products and the difficulty of ascertaining
damages. Instructions given by Axtel to Airspan to correct faulty work
or to repair or replace Products shall not constitute a waiver of the
damages set forth herein.
3.5 If any RBS FWA Product scheduled for delivery in year 2004, Airspan no
delivers it to Axtel in such year 2004, Airspan hereby agrees to
provide such RBS FWA Product to Axtel free of any charge and will
reimburse Axtel of any amount paid in advance for such Product.
4. Licensed Use of Software
4.1 Airspan grants Axtel a nonexclusive and perpetual (subject to Airspan
termination rights set forth in section 4.5 below) license to use a
copy of the Software with the Products to the extent of the activation
or authorized usage level.
4.2 To the extent Software is furnished for use with designated Products
or Axtel-furnished equipment ("CFE"), Axtel is granted a nonexclusive
and perpetual (subject to Airspan termination rights set forth in
section 4.5 below) license to use the Software only on such Products
or CFE, as applicable.
4.3 Software contains trade secrets and Axtel agrees to treat Software as
Information (as defined in Section 10). Axtel will ensure that anyone
who uses the Software does so only in compliance with the terms of
this Agreement.
4.4 Axtel shall not: (a) use, copy, modify, transfer or distribute the
Software except as expressly authorized, provided, however, that,
Axtel is hereby authorized to generate new Software Scripts or modify
the existing ones; and provided, further, that Airspan shall not be
obligated to support such modified Software Scripts, nor shall it be
responsible for any performance issues resulting from such modified
Software Scripts; (b) reverse assemble, reverse compile, reverse
engineer or otherwise translate the Software; (c) create derivative
works or modifications unless expressly authorized; or (d) sublicense,
rent or lease the Software. Licensors of intellectual property to
Airspan are beneficiaries of this provision.
4.5 Upon breach of the Software license by Axtel as set forth in this
Agreement or in the event the designated Product or CFE is no longer
in use, this license terminates and Axtel will promptly return the
Software to Airspan or certify its destruction.
4.6 Airspan may audit by remote polling or other reasonable means to
determine Axtel's Software activation or usage levels.
4.7 With respect to Third Party Software, Axtel agrees to abide by the
terms provided by Airspan with respect to any such software. Axtel
further agrees that the terms contained in any Airspan or third party
"shrink wrap" or "click" licenses shall govern the use of such
software.
4.8 If Airspan and Axtel agree that Delivery of Software is to be made
electronically via File Transfer Protocol, then Delivery of such
Software by Airspan shall be deemed to have taken
-6-
place at such time as the Software is loaded onto a network server, as
designated by Airspan, and Axtel has been provided with appropriate
instructions and passwords to enable Axtel to begin use of such
Software. Notwithstanding the foregoing, the Parties shall comply with
all regulations applicable to importation of Software pursuant to
applicable law.
4.9 Axtel is allowed to make copies of the Software, as may be reasonably
necessary for back up, execution or archival purposes only.
5. Charges, Payment and Taxes
5.1 The contract price for the Products (including Software) and Services
is set forth in Annex F hereto. Unless otherwise agreed by the Parties
in an Order, all prices are in U.S. dollars, exclusive of Taxes. All
prices are applicable solely in Mexico.
5.2 In accordance with the terms of Annex "E", within the next five (05)
business days after the delivery of the Order in accordance with the
terms set forth in Section 5.3, Airspan shall deliver to Axtel an
invoice for one hundred percent (100%) of the purchase price of such
Order.
5.3 Axtel shall pay Airspan for all Products and Services in accordance
with the following payment terms, provided that Airspan has not
breached its representations, warranties, covenants and undertakings
under this Agreement:
(i) For any Product:
[ * ] First Payment, sixteen (16) weeks before the Delivery of
the Products, or such shorter interval if Airspan has
accepted an Order under section 2.3.2 having a shorter
interval between acceptance and Delivery;
[ * ] Second Payment, upon Delivery of the Product(s).
(ii) For any Services:
[ * ] upon acceptance of the Order by Airspan, and the remainder
in equal monthly installments on the last business day of
each month during the period in which the services are
performed.
5.4 Payment of the second installment mentioned in Section 5.3 (i) above,
shall be made by Axtel twenty (20) days after Delivery Date of
Basestations, and ten (10) days for RSS equipment (as defined in Annex
E of this Agreement) of the Products; provided that Axtel may notify
Airspan in writing within such 20-day or 10-day period, as the case
may be, if some or all of the Products delivered are not in compliance
with the terms of the Order (the "Non-Compliant Products"), in which
case Airspan shall take, within thirty days of the date of Axtel's
notice, corrective action to resolve such Non-Compliant Products.
Axtel shall not be obligated to pay the purchase price of the
Non-Compliant Products until Airspan corrects such non-compliance,
provided, however, that prior to such resolution Airspan shall issue a
revised invoice relating to the portion of Products received by Axtel
that is in compliance with the terms of the Order. Partial shipments
shall be allowed under this Agreement pursuant the terms set forth in
Annex "J" of this Agreement. For the avoidance of doubt, the Parties
agree that the purchase price of the compliant Products shall be paid
by Axtel as provided in this Section 5.4.
5.5 The Parties hereby agree that any payments to be made under this
Agreement shall be made when due by wire transfer (electronic or
telegraphic) or by any other form of payment, in immediately available
funds, to Airspan's bank account, as follows:
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Bank: Lloyds Bank
00 Xxxxxxxxxx Xxx,
Xxxxxx,
Xxxxxx XX00 0XX,
Xxxxxxx
Sort Code: [ * ]
Account Name: Airspan Communications Limited
Account No: [ * ]
Further Instructions Reference Axtel
P.O. No. _______,
Payment of Invoice No. ____________.
5.6 With respect to Services, amounts are due upon receipt of invoice and
shall be paid by Axtel within thirty (30) days of the invoice date.
5.7 Axtel shall pay interest on any late payments at the rate of twelve
(12%) percent per annum.
5.8 Charges for Software may be based on extent of use authorized as
specified in this Agreement. Axtel agrees to pay the charges
applicable for any activation or usage beyond the authorized level.
5.9 Axtel is liable and responsible for any Taxes relating to the purchase
and importation of the Products or Services furnished by Airspan or
its subcontractors pursuant to this Agreement (whether incurred
directly or indirectly by Airspan) and shall, at Airspan' direction,
promptly pay to Airspan or pay directly to the applicable government
or taxing authority, if requested by Airspan, all such Taxes;
provided, however, that in no event shall Axtel be liable for Taxes
computed upon the income or gross revenues of Airspan or its
subcontractors.
5.10 Axtel shall be responsible for payment of personal property taxes for
Products and materials from the date of shipment by Airspan. Axtel's
obligations pursuant to this Section shall survive any termination of
this Agreement.
5.11 Axtel shall, within thirty (30) days of the tax payment on behalf of
Airspan, furnish to Airspan all original tax receipts or certified
copies in Airspan' name showing payment of the Tax and such other
documentation relating to the tax payment which Airspan may reasonably
request.
5.12 If Axtel shall claim to be exempt from any Taxes, Axtel shall furnish
to Airspan a tax exemption certificate from the relevant taxing
authority in the form required by law or otherwise reasonably
acceptable to Airspan. If Axtel shall claim any such tax exemption and
provides Airspan the required tax exemption certificate and Airspan
does not collect the Taxes in reliance thereupon, Axtel shall hold
Airspan harmless from and against any and all assessments for such
Taxes levied on Airspan, including all interest, penalties and late
charges upon any such Taxes and the cost of professional consulting
fees incurred by Airspan to settle the applicable tax matter with the
relevant tax authorities.
5.13 If withholding of any Tax is required in respect of any payment by
Axtel to Airspan hereunder, Axtel shall: (i) withhold the appropriate
amount from such payment, (ii) pay such amount to the relevant
authorities in accordance with applicable law, and (iii) pay Airspan
an additional amount such that the net amount received by Airspan is
the amount Airspan would have received in the absence of such
withholding.
5.14 Axtel shall pay all applicable customs fees, import duties, and
similar charges directly to the appropriate governmental authorities.
Each party agrees to ensure that it is in good standing and is
appropriately registered, including without limitation, with respect
to Taxes, in any country, state or other jurisdiction where legally
required.
-8-
5.15 Airspan reserves the right to import services or subcontractors when
and where necessary to complete services related to this Agreement. To
the extent the Local Airspan Affiliate must import services or
subcontractors in support of this Agreement, Airspan reserves the
right to have the Local Airspan Affiliate invoice Axtel an additional
amount such that the cost of the withholding taxes for such imported
Services are borne by Axtel.
5.16 Axtel consents without qualification to the sale and/or assignment of
receivables, in whole or in part, including all or any part of any
associated rights, remedies, and obligations, by Airspan subject to a
30-day prior written notice, and authorizes the disclosure of this
Agreement as necessary to facilitate such sale. Any tax impact to
Axtel resulting from such sale and/or assignment shall be borne by
Airspan.
5.17 Intentionally Left in Blank.
5.18 Intentionally Left in Blank.
5.19 Airspan reserves the right to reject an Order at Airspan' sole
discretion, or to withhold shipment of Products or performance of
Services, or any portion thereof, if: (i) Axtel is in default of its
payment obligations hereunder, (ii) Axtel is in breach of its
obligations under this Agreement, or (iii) Axtel falls under any of
the situations described in Sections 16.1 (i) through (v) hereof, and
all relevant dates for completion shall be adjusted accordingly.
5.20 Intentionally Left in Blank.
5.21 The Minimum Purchase Commitment is set fort in Section 23 and in Annex
K.
5.22 Axtel has the right to engage a third party financial institution to
provide financing for the Products and/or Services supplied by Airspan
under this Agreement (provided that Axtel is in compliance with the
financial covenants set forth in the Airspan Finance Agreement), in
which case such third party financial institution may purchase
Products and Services as required by Axtel and may make the payments
as provided under this Agreement; provided, however, that Axtel shall
continue to be obligated to comply with all its obligations hereunder
or with respect to the Product and/or Services sold by Airspan to that
third party.
6. Warranty
6.1 Airspan warrants that the Products (except for the Software) described
in Annex "C" will be new, unused when delivered and, subject to the
provisions of this Section and to the terms and conditions set forth
in Annex "G" of this Agreement.
6.1.1 Airspan warrants that the Software described in Annex "C", will be
subject to the provisions of this Section and to the terms and
conditions set forth in Annex "G" of this Agreement.
6.2 Airspan warrants that the Products will be free from defects in
materials and workmanship and will function substantially in
accordance with the applicable technical Specifications during the
warranty period of twelve (12) months from the respective Delivery
Date pursuant the terms set forth in Annex "G" of this Agreement.
6.3 Airspan warrants that the Services will be performed in a professional
and workmanlike manner and will be subject to the terms set forth in
Annex "G" of this Agreement.
6.4 THESE WARRANTIES AND LIMITATIONS ARE AXTEL'S EXCLUSIVE WARRANTIES AND
SOLE REMEDIES, AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
-9-
6.5 Single Product RSS Equipment.
6.5.1 Airspan will develop and manufacture a new single unit of RSS
equipment (the "New FWA RSS F6 Unit"), and Airspan commits to supply
the New FWA RSS F6 Unit to Axtel from April 1st, 2005 (the "New
Product Commercial Launch").
6.5.2 The New FWA RSS F6 Unit shall have at least the same form, function
and fit of both of the current RSS Equipment (jointly F2 and F5 RSS
equipment), in accordance with the technical specifications set forth
in Annex "D" of this Agreement.
6.5.3 The price of the New FWA RSS F6 Unit is set forth in the Annex "F" of
this Agreement.
6.5.4 Airspan will provide a number of fifteen (15) New FWA RSS F6 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 F6 Unit before the New Product Commercial Launch (the
"First Market Application"). The New FWA RSS F6 Unit shall pass
successfully the First Market Application made by Axtel pursuant the
acceptance procedure set forth in Annex "H" of this Agreement. 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 F6
Unit. Airspan will provide a quote for this service under this
Agreement at reasonable costs and prices.
6.5.5 Airspan shall sell and deliver to Axtel the current F5 RSS Kit
(excluding the RDA) instead of such New FWA RSS F6 Unit, at the prices
of the New FWA RSS F6 Unit set forth in Annex "F" of this Agreement,
if any of the following events occur:
(a) If the New FWA RSS F6 Unit is not available for Delivery
after the New Product Commercial Launch in accordance with
the Specification set forth in this Agreement; or
(b) If the New FWA RSS F6 Unit does not satisfactorily pass the
First Market Application performed by Axtel in accordance
with the test protocol set forth in Annex "H" of this
Agreement;
The foregoing, until such time as:
(a) the New FWA RSS F6 Units has satisfactorily complied with
the First Market Application; and
(b) the New FWA RSS F6 Unit is delivered by Airspan pursuant the
Specifications set forth in this Agreement.
(c) If through no fault of Airspan, Axtel is unable to complete
the First Market Application by March 15th 2005, Airspan
shall sell and deliver to Axtel the current F5 and F2 RSS
kits instead of the New RSS Unit, at the prices of such
Products set forth in Annex "F" until such time as the First
Market Application is completed by Axtel.
6.6 As far as both parties are aware the Products comply with all and any
governmental regulations applicable to such Products at the Effective
Date (such as "Normas Oficiales Mexicanas"). Airspan will make its
best efforts to comply with future regulations, provided that, the
Parties shall previously agree the form to cover the expenses arising
from the new requirements established by Mexican governmental
regulations, provided that, if for any reason, Airspan is not willing
to perform the necessary changes to the Products in order to comply
with such governmental regulations, Axtel will not be obligated to
comply with its purchase commitment set forth in Section 23 and Annex
"K" of this Agreement.
-10-
6.7 Intentionally Left in Blank.
6.8 Warranty Services: During the warranty period, Airspan provides
warranty Services without charge for Products supplied under this
Agreement to correct Products defects or to bring it up to conformance
with the Specifications set forth in this Agreement. Warranty Services
to be provided by Airspan are further described in Annex "G" hereof.
6.9 Axtel shall notify Airspan prior to returning any Product and must
reference a return material authorization number issued by Airspan on
documentation accompanying such returned Product. When Axtel is
required to return Products to Airspan for warranty service, Axtel
agrees to ship it prepaid and suitably packaged to a location Airspan
designates. Airspan will return the Product to Axtel at Airspan'
expense. Airspan is responsible for loss of, or damage to, Products
while they are: (i) in Airspan' possession, or (ii) in transit back to
Axtel. Any exchanged Product becomes Airspan' property and, subject to
Section 8 - Title and Risk of Loss, its replacement becomes the
Axtel's property. The replacement Product may not be new but will be
in working order and equivalent to the item exchanged. The warranty
period for the repaired or exchanged Product shall be the greater of
one hundred and eighty (180) days from the date of delivery of the
Product back to Axtel, or the remaining Product warranty period. Axtel
agrees to ensure that exchanged Product is free of any legal
obligations or restrictions that prevent its exchange and represents
that all returned items are genuine and unaltered.
6.10 Where applicable, before Airspan provides warranty services, Axtel
agrees to: (i) follow the problem determination, problem analysis, and
warranty services request procedures that Airspan provides; (ii)
secure all program and data contained in Product; and (iii) inform
Airspan of changes in the Product's location.
6.11 Airspan covenants that Support Services, and Functionality of the
Products or equivalent replacement, including Spare Parts, shall be
available to Axtel for a period of 7 years from the Effective Date.
Notwithstanding the foregoing, Airspan shall give Axtel twelve (12)
months prior written notice in the event that Airspan discontinues the
supply of any Products or Software sold hereunder. For such
discontinued Product and Software, Airspan undertakes to continue
providing spare parts and technical support, including repair of any
Products (or part thereof) which are sent to Airspan for that purpose,
for a period of five (5) years after such discontinuance. In case
Airspan discontinues the supply of any Product or Software sold
hereunder during the first two (2) years of the Term, Airspan shall
make an equivalent Product available to Axtel under the terms of
Section 14.1 of the Agreement.
6.12 Post-warranty and other Services to supplement the warranty Services,
including advanced shipment of replacement parts, may be available at
prices and policies to be negotiated in good faith and agreed between
the Parties. The warranty service terms and exclusions in Section 6
above shall apply to post- and supplemental warranty Services.
7. Services
7.1 Services in General: Axtel agrees to reasonably cooperate with Airspan
in the performance by Airspan of the Services, including, without
limitation, providing Airspan with sufficient and timely access free
of charge to facilities, data, information and personnel of Axtel in
accordance with the then-current Axtel policies, and a suitable
physical environment meeting Airspan' specified requirements to permit
the timely delivery and installation of Products and/or performance of
Services, including the recovery by Airspan of any tools, diagnostic
or test equipment, documentation or other items used by Airspan in the
performance of the Services.
7.2 In addition, Axtel shall be responsible for the accuracy and
completeness of all data and information that it provides or causes to
be provided to Airspan. In the event that there are any
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delays by Axtel in fulfilling its responsibilities as stated above,
there is a disagreement between the parties as to the cooperation
required from Axtel, or there are errors or inaccuracies in the
information provided, Airspan shall be entitled to appropriate
schedule and pricing adjustments, including storage fees. It is
understood and agreed that the Services provided by Airspan may
include the advice and recommendations of Airspan, but all decisions
in connection with the implementation of such advice and
recommendations shall be the sole responsibility of, and made by,
Axtel, unless such advice and recommendations are part of consulting
services purchased by Axtel.
7.3 Service Personnel: Airspan and Axtel are each responsible for the
supervision, direction, compensation and control of their own
employees and subcontractors. Airspan may subcontract any portion or
all of the Services to subcontractors selected by Airspan. Neither
Party shall knowingly solicit to hire employees of the other Party
with whom it had contact as a result of the performance of the
Services for a period ending twelve (12) months after completion of
the Services. Neither Party shall be precluded from conducting
generalized searches for employees (and hiring those employees who
respond to generalized searches) either through the use of search
firms or advertisements in the media, provided that searches are not
specifically targeted to employees providing Services.
7.4 Intellectual Property Rights: Airspan, on behalf of itself and its
subcontractors, reserves all proprietary rights in and to: (i) all
methodologies, designs, engineering details, and other data pertaining
to the Services and designs, documentation and other work product
prepared by Airspan and delivered to Axtel, (ii) all original works,
computer programs and updates developed in the course of providing the
Services (except Axtel's developed programs) or as otherwise agreed in
writing by the Parties, (iii) discoveries, inventions, patents,
know-how and techniques arising out of the Services, and (iv) any and
all products (including software and equipment) developed as a result
of the Services. The performance by Airspan of Services shall not be
deemed work for hire. Airspan grants to Axtel a perpetual,
non-exclusive, world-wide, paid up license to use, copy and modify the
designs, documentation and other work product prepared by Airspan and
delivered to Axtel in the performance of Services solely for Axtel's
internal business purposes. It is understood between the Parties that
Airspan will employ its know-how, techniques, concepts, experience and
expertise, as well as all other intellectual property, including that
to which it reserves its rights hereunder, to perform services for
others which are the same as or similar to the Services.
8. Title and Risk of Loss
8.1 Title and risk of loss for ordered Product (except for the Software)
shall pass from Airspan to Axtel upon its Delivery to Axtel.
9. Installation and Commissioning
9.1 Axtel shall perform all installation, commissioning and software
loading services with respect to the FWA Products, using skilled
personnel and in accordance with the Airspan Procedures, with the
exception of REM software upgrades, which shall be installed by
Airspan pursuant to the FWA TASS Agreement.
10. Confidential Information
10.1 Confidential information ("Information") means: (i) Software and Third
Party Software; and (ii) all business, technical, marketing and
financial information and data that is clearly marked with a
restrictive legend of the disclosing party ("Discloser").
10.2 The party receiving Information ("Recipient") will use the same care
and discretion to avoid disclosure, publication or dissemination of
Information as it uses with its own similar information that it does
not wish to disclose, publish or disseminate. The Recipient may
-12-
disclose Information only to: (i) its employees and employees of its
parent, subsidiary affiliated companies or subcontractors who have a
need to know for purposes of carrying out this Agreement; and (ii) any
other party with the Discloser's prior written consent. Before
disclosure to any of the above parties, the Recipient will have a
written agreement with such party sufficient to require that party to
treat Information in accordance with this Agreement.
10.3 The Recipient may disclose Information to the extent required by law.
However, the Recipient must give the Discloser prompt notice and make
a reasonable effort to obtain a protective order.
10.4 No obligation of confidentiality applies to any Information that the
Recipient: (i) already possesses without obligation of
confidentiality; (ii) develops independently; or (iii) rightfully
receives without obligations of confidentiality from a third party. No
obligation of confidentiality applies to any Information that is, or
becomes, publicly available without breach of this Agreement.
10.5 Each party's obligations hereunder shall survive for a period of five
(5) years after receipt of Information hereunder from the Discloser,
except as otherwise mutually agreed upon by the parties.
10.6 THE DISCLOSER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE
WHATSOEVER WITH RESPECT TO ANY INFORMATION FURNISHED TO THE RECIPIENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, EXCEPT FOR
THOSE SET FORTH IN SECTION 6 HEREOF.
10.7 The release of any advertising or other publicity relating to this
Agreement requires the prior approval of both Parties.
11. Patents and Copyrights
11.1 Airspan shall indemnify and hold harmless Axtel, its officers,
directors, representatives, agents, employees, contractors,
subcontractors, subsidiaries and affiliates against any actual direct
loss, damage, liability, cost, expense, action or claim, including
reasonable attorneys' fees, litigation costs and expenses and amounts
paid in settlement, subject to the limitations set forth in the
following paragraphs, arising out of or in connection with any
infringement or alleged infringement of patents, copyrights,
trademarks, trade secrets, or any other intellectual property right of
a third party.
Therefore, if a third party claims that a Product or Software
provided to Axtel under this Agreement infringes such third party's
patent or copyright, Airspan will defend Axtel against that claim at
Airspan' expense and pay all costs and damages that a court finally
awards or are agreed in settlement, provided that Axtel:
(a) promptly notifies Airspan in writing of the claim, and (b) allows
Airspan to control, and cooperates with Airspan at Airspan'
expense in, the defense and any related settlement negotiations.
If such a claim is made or appears likely to be made,
Airspan agrees to secure the right for Axtel to continue to use the
Product or Software, or to modify it, or to replace it with equivalent
Product or Software. If Airspan determines that none of these options
is reasonably available, Axtel agrees to return the Product or
Software to Airspan on Airspan' written request. Airspan will then
reimburse to Axtel an amount of money equal to the purchase price paid
by Axtel for the Product or Software.
-13-
Any such claims against Axtel or liability for infringement arising
from use of the Product or Software following a request for return by
Airspan are the sole responsibility of Axtel. This represents Axtel's
sole and exclusive remedy regarding any claim of infringement.
11.2 Airspan has no obligation regarding any claim based on any of the
following:
(a) anything Axtel provides which is incorporated into the Product or
Software; except for such equipment that has been accepted by
Airspan in the Specifications set forth in this Agreement
(b) compliance by Airspan with Axtel's specifications, designs or
instructions; except for those set forth in the Specifications
set forth in this Agreement;
(c) any claim by Axtel to Airspan regarding the amount of revenues or
profits earned or other value obtained by the use of a Product by
Axtel;
(d) Axtel's modification of Product or Software (subject to Section
4.4(a) hereof);
(e) the combination, operation, or use of Product or Software with
other products not provided by Airspan as a system, or the
combination, operation, or use of Product or Software with any
product, data, or apparatus that Airspan did not provide;
(f) the Axtel's failure to install or have installed changes,
revisions or updates as instructed by Airspan; or
(g) infringement by a Third Party Vendor Item alone, as opposed to
its combination with Products Airspan provides to Axtel as a
system.
12. Limitation of Liability
12.1 In no event shall Airspan or its agents or suppliers be liable to
Axtel for more than the amount of any actual direct damages up to the
greater of U.S. $100,000 (or equivalent in local currency) or the
charges for the Product or Services that are the subject of the claim,
regardless of the cause and whether arising in contract, tort or
otherwise. This limitation will not apply to claims for damages for
bodily injury (including death) and damage to real property and
tangible personal property for which Airspan is legally liable and
payments as set forth in Section 11 - Patents and Copyrights.
12.2 IN NO EVENT SHALL AIRSPAN OR ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY
OF THE FOLLOWING: I) DAMAGES BASED ON ANY THIRD PARTY CLAIM, EXCEPT AS
EXPRESSLY PROVIDED FOR HEREIN; II) LOSS OF, OR DAMAGE TO, AXTEL'S
RECORDS, FILES OR DATA; OR III) INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST
SAVINGS), EVEN IF AIRSPAN IS INFORMED OF THEIR POSSIBILITY.
13. Concessions
13.1 Axtel hereby warrants and represents that it and its affiliates in
Mexico have obtained the Concessions which will permit each of them to
legally operate all or a portion of the Products in Mexico. The
Parties agree that Airspan shall not deliver or install any Products,
perform any Services or accept any Orders hereunder unless Axtel or
its affiliates (if applicable) have been granted a Concession in
Mexico for the use of such Products.
14. Changes or Substitution of Products
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14.1 At any time, Airspan may implement changes to the Products, modify the
Products' designs and Specifications or substitute the Products with
ones of similar or more recent design. The Parties shall mutually
agree on the Price of such changed or substituted Products. Such a
change to or substitution of the Products provided under this
Agreement shall be subject to the following requirements: (i) shall
not adversely affect the physical or functional interchangeability or
the performance Specifications of the Products, except as otherwise
agreed in writing by Axtel; (ii) the price for equivalent performance
shall be the same or lower than the price agreed hereunder, except as
otherwise agreed in writing by Axtel; (iii) any change or substitution
of the Products shall be functionally equivalent and compatible with
the changed or substituted Product, without the need for any other
adaptations; and (iv) shall under no circumstances either reduce or
decrease Airspan' warranty obligations set forth in this Agreement.
15. Delayed Shipment of the Products or the Performance of the Services
15.1 If Axtel notifies Airspan less than thirty (30) days prior to the
scheduled delivery date of the Products (or if the Products have been
manufactured per the agreed upon schedule) that Axtel does not wish to
take delivery thereof at the scheduled time or that a site is not
available to receive such Products, or if Axtel fails to take delivery
of such Products upon their arrival at the applicable site, Airspan
shall have the right to place the Products in storage and Axtel shall
bear all costs of demurrage, restocking, warehousing, reloading,
transporting, off-loading, and other associated costs incurred by
Airspan. All such costs shall be paid in full within thirty (30) days
of Axtel's receipt of Airspan' commercial invoice therefor.
15.2 If Axtel notifies Airspan less than thirty (30) days prior to the
scheduled performance date of the Services that Axtel does not wish
Airspan to perform such Services at the scheduled time or that the
Site is not available for the performance of such Services, Airspan
shall have the right to delay the performance of the Services and
Axtel shall bear all associated and documented out of pocket travel
and expense costs incurred by Airspan. All such costs shall be paid in
full within thirty (30) days of Axtel's receipt of Airspan' commercial
invoice therefor.
15.3 Site facilities and physical specifications of equipment (including
shelters, fiber cabling, power, etc.) provided by Axtel for use with
the Products sold hereunder must meet Airspan' installation and
environmental Specifications. Any testing required to verify the
condition of Site facilities and any required upgrades will be at
Axtel's expense.
16. Termination; Survival
16.1 Without prejudice to any rights and remedies provided for hereunder,
either Party hereto may terminate at its option, this Agreement or the
relevant Orders as provided below, effective immediately, upon written
notice to any other Party, upon the occurrence of any of the following
events or conditions (each, an "Event of Default"):
(i) the other Party 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) the other Party makes a general assignment for the benefit of
its creditors,
(iii) the other Party commences a voluntary proceeding under the
bankruptcy, insolvency or similar laws relating to relief from
creditors generally,
(iv) the other Party 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
-15-
or of all or a substantial part of its property or its
liquidation, reorganization, dissolution or winding-up, or (v)
the other Party materially fails to perform any term or condition
under this Agreement or any of its Annexes, which failure
continues for a period of thirty (30) days after written notice
has been given to the breaching Party;
(vi) if Axtel becomes entitled to the maximum liquidated damages with
respect to the delivery of Products under any Order pursuant to
Sections 3.4 and 3.4.1 above.
With respect to the Events of Default indicated in sections (v) and
(vi) above, the affected Party will have the right, at its election,
to terminate this Agreement (together with any pending Order) or only
the relevant Order(s).
16.2 The respective obligations of each Party pursuant to Sections 1,
4, 5, 6, 7, 10, 11, 12, 16 and 18 hereof, and any other obligations of
each Party pursuant to this Agreement that by their nature would
continue beyond the termination, cancellation, or expiration hereof,
shall survive such termination, cancellation, or expiration.;
provided, however, that if Axtel fails to make payment in accordance
with the terms and conditions hereof (subject to the cure period
provided in Section 16.1 above), the Parties expressly agree that the
following Sections hereof shall not survive such termination,
cancellation, or expiration: Sections 6 and 7 only with respect to the
Products that were not paid in full by Axtel; and provided, further,
that Section 4 hereof shall survive such termination, cancellation, or
expiration only to the extent that Axtel is not in default of the
payment of the applicable Software license fees, if any.
17. Airspan Procedures, Manuals and Documentation
17.1 "Airspan Procedures" will consist of documents which describe in
detail the engineering, installation, commissioning, maintenance,
troubleshooting and operation of Product(s). The Airspan Procedures
shall be provided in the English language. Airspan shall provide the
Airspan Procedures in Spanish if so published. Airspan shall ship
electronic documentation containing the applicable Airspan Procedures
to Axtel with the initial delivery of a system release to Axtel.
During the Term, Airspan shall, at no additional charge to Axtel,
deliver to Axtel, one set of electronic files with updates, revisions
and/or corrections of such Airspan Procedures as they become
available. Axtel may order additional copies of the Airspan Procedures
at Airspan's then applicable prices. Axtel may use and reproduce the
Airspan Procedures in paper format for the purposes of engineering,
installing, commissioning, maintaining, troubleshooting and operating
the Products, subject to the limitations regarding Information set
forth in Section 10. Reproduction shall include the copyright or
similar proprietary notices. Axtel is responsible for ensuring proper
versions of the Airspan Procedures are printed and distributed.
18. General
18.1 Axtel agrees that it will not export Products procured hereunder from
Mexico without Airspan's prior written consent. Airspan reserves the
right to assign any portion of an Order accepted under this Agreement,
in whole or in part, provided that such assignment shall be in
compliance with the provisions of Section 20 below if such assignment
falls under the situation provided for in Section 20 of this
Agreement...
18.2 Axtel agrees to comply with all laws applicable to it, including all
applicable export and import laws and regulations. In the event that
any provision of this Agreement or portions thereof are held to be
invalid or unenforceable, the remainder of this Agreement will remain
in full force and effect.
18.3 The terms and conditions of this Agreement, and its Annexes, form the
complete and exclusive agreement between Axtel and Airspan and replace
any prior oral or written communications and agreements regarding the
subject matter thereof.
-16-
18.4 Any changes to this Agreement must be made by mutual agreement in
writing.
18.5 The laws of the State of New York, United States of America govern
this Agreement, exclusive of its conflict of laws provisions; and
nothing in this Agreement affects any statutory rights of consumers
that cannot be waived or limited by contract. The United Nations
Convention on the International Sale of Goods shall not apply.
18.6 If, within thirty (30) days from the date of any notice of dispute
from a Party to any other Party, such Parties are unable to resolve
the issue, then either Party may initiate the binding arbitration to
resolve such dispute by written notice to such other Party upon
expiration of such thirty (30) day period. Any dispute between the
Parties arising in connection with this Agreement shall be exclusively
resolved by arbitration pursuant to the Rules of Conciliation and
Arbitration of the International Chamber of Commerce then in force.
The arbitration proceedings pursuant to this Section 18(c) shall take
place in the English language in the City of Miami, State of Florida,
before a panel of three (3) arbitrators appointed in accordance with
the aforementioned rules. The decision of the arbitrators shall be
final and binding upon the Parties and their respective successors and
assigns. The decision and award rendered by the arbitrators may be
entered in any court of competent jurisdiction and any such court may
order the enforcement of such award against the Parties and their
respective successors and assigns.
18.7 EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING ANY ORDER ISSUED AND
ACCEPTED HEREUNDER.
18.8 Notwithstanding anything in this Agreement to the contrary, if the
supply of the Products or the performance of the Services by Airspan,
or any portion thereof, or the performance of any other obligation
hereunder by any party is prevented, delayed, interfered with, or
interrupted by reason of a Force Majeure Event, such prevention,
delay, interference, or interruption shall be deemed not to be a
default pursuant to this Agreement and the time or times for such
performance or supply hereunder shall be extended by the period or
periods same is so prevented, delayed, interfered with, or
interrupted. The foregoing shall apply even though any such cause
exists or is foreseeable as of the date hereof. Neither Party shall be
required to change its usual business practices or methods or to
assume or incur other than its usual costs or expenses in order to
mitigate, avoid, or eliminate any Force Majeure Event or to reduce the
period of any resulting delay. Each Party shall notify the other
Parties of any delay or failure excused by this Section 18.9) and
shall specify the revised performance date as soon as practicable.
Nothing contained in this Section 18.9 shall affect any obligation of
Axtel to make any payment when due in accordance with this Agreement.
18.9 All notices pursuant to this Agreement will be in writing and deemed
given when delivered in person, by certified mail or courier service,
or by facsimile.
Notices to Axtel shall be sent to:
Axtel, S.A. de C.V.
Boulevard Xxxxxxx Xxxx Xxxxx Xx. 3.33 L-1
Colonia Unidad San Xxxxx
San Xxxxx Xxxxx Xxxxxx
Nuevo Xxxx, Mexico
Attention: Director de Negociaciones Estrategicas
with a copy to the Corporate Counsel.
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Notices to Airspan shall be sent to:
Airspan Communications Limited
Xxxxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxx, Xxxxxxx
XX0 0XX
Attention: Vice President & Controller
with a copy to:
Airspan Networks Inc
000 Xxxxxx Xxxx, xxxxx 000
Xxxx Xxxxx, XX 00000
XXX
Attention: Senior Vice President & Chief Financial Officer
18.10 The relationship between Airspan and Axtel during the term hereof
shall be that of vendor and purchaser with respect to the purchase of
the Hardware and licensor and licensee with respect to license of the
Software. A Party's agents, employees, representatives shall under no
circumstances be deemed employees, agents or representatives of the
other Party or its affiliates.
18.11 All work to be performed in connection with this Agreement shall be
by qualified workers or firms whose employees are not objectionable to
the trade unions that may be engaged in work on the premises. Airspan
shall be wholly responsible for all trade union relations in
connection to its employees and Axtel shall not be liable in any way
through delays or claims arising through such causes in connection to
Airspan employees.
19. Intentionally Left in Blank.
20. Assignment; Right of First Refusal
20.1 Each Party agrees not to assign or otherwise transfer this Agreement
or its rights under it, or delegate its obligations, without the other
Party's prior written consent, and any attempt to do so is void.
Notwithstanding the foregoing, Airspan may assign or otherwise
transfer this Agreement or its rights under it, or delegate its
obligations, to any of its affiliates. Airspan may also assign or
otherwise transfer this Agreement or its rights under it, or delegate
its obligations, to any purchaser of the FWA Business without the
Axtel's prior written consent; provided that:
(i) Airspan shall provide to Axtel the soliciting or offering
material used in connection with any contemplated sale of the
FWA Business (the "FWA Information") at the same time any such
FWA Information is provided to any third party potential
purchaser (the "Potential Purchasers"), subject to execution by
the Parties of a non-disclosure agreement in a form and
substance reasonably satisfactory to Airspan, but no less
restrictive on Axtel than the non-disclosure agreement executed
with the Potential Purchasers; and provided, however, that
Airspan may not offer, solicit interest in or sell the FWA
Business to any company which is a direct competitor of Axtel
or does not have the necessary resources (human and/or
technical), at Airspan' reasonable
-18-
judgment, to manufacture the Products and/or to provide the
technical support required by Axtel, including without
limitation, Telefonos de Mexico, S.A. de C.V. or any of its
affiliates (the "Restricted Companies");
(ii) Airspan hereby grants to Axtel a right of first refusal ("RFR")
with respect to any offer received by Airspan from any third
party which Airspan proposes to accept (including any revised
offers), allowing Axtel to purchase the FWA Business on terms
not less favorable than such offer, subject to Axtel having
made, within forty five (45) days after Airspan shall have
delivered written notice to Axtel of such offer or revised offer
(the "Vendor's Notice"), a single deposit for the amount equal
to five (5) percent of the amount of the third party offer (the
"Deposit") into an interest bearing escrow account. Once Airspan
has received the Deposit, Axtel shall have the right to perform
a due diligence investigation of the FWA Business, and Airspan
shall be obligated to promptly provide all the information and
access that Axtel reasonably requires for the evaluation of the
FWA Business; and
(iii) in the event of any such sale to a purchaser other than Axtel,
such new vendor shall assume all of Airspan's obligations under
this Agreement.
20.2 If Axtel exercises its RFR, Airspan and Axtel shall have ninety (90)
days from payment of the Deposit to negotiate in good faith and enter
into a purchase agreement pursuant to which Airspan will sell the FWA
Business to Axtel, unless a longer period of time is stated in the
offer received from the Potential Purchaser, in which case such longer
period shall prevail (the "Offer Period"). If the Parties have entered
into such an agreement by the end of the Offer Period, the Deposit
shall be credited towards the purchase price of the FWA Business. If
the Parties have not entered into such an agreement by the end of the
Offer Period, Axtel shall forfeit in favor of Airspan the Deposit, and
Airspan shall have the right to sell the FWA Business to any Potential
Purchaser other than a Restricted Company, subject to the terms and
conditions of Section 20.3 below; provided, however, that if the terms
of the proposed sale are more favorable to such Potential Purchaser
than the best offer (from Airspan' perspective) presented by Axtel to
Airspan during the Offer Period, then the RFR shall again apply to
such sale, but Axtel shall not be obligated to provide any additional
Deposit.
20.3 If Axtel shall decline in any instance to exercise its RFR or the
Parties fail to enter into the purchase agreement as described in
Section 20.2, Airspan shall have the right for a period of one year
from the date of such declination or failure, to sell the FWA Business
to a Potential Purchaser (except if such Potential Purchaser is a
Restricted Company) without prior notice to Axtel, on terms which are
not more beneficial to such Potential Purchaser than those set forth
in Vendor's Notice. If the foregoing conditions are not met, the RFR
shall again apply to such sale; provided, however, that the 90-day
term provided in Section 20.2 above shall be reduced to forty five
(45) days and Axtel shall not be obligated to provide any additional
Deposit.
21. Airspan Security Instrument.
21.1 The Parties hereby acknowledge that the current Bank Guarantee granted
by Airspan to Axtel pursuant the Second Amendment No. 2 shall continue
to remain open until Airspan delivers to Axtel all the Products
covered currently by such Bank Guarantee (the Orders Guaranteed by
Airspan). Thereafter, Axtel shall agree to the release and termination
of the Bank Guarantee. In addition to the foregoing, the Parties
hereby agree that, if after the Effective Date of this Agreement,
Axtel makes new payments in the circumstances described in Section
21.2 below, Airspan shall obtain and maintain a new Bank Guarantee to
cover the respective Excess Exposure Amount until such time as
aggregate amounts paid fall below the Excess Exposure Amount.
-19-
21.2 The Parties hereby acknowledge that, from time to time, Axtel may make
payments to Airspan under this Agreement such that the aggregate
amount of those payments for Orders where the related Product has not
been delivered may at times exceed US $10,000,000.00 ("Exposure
Limit") in respect of Orders that have not been fully delivered
("Orders Guaranteed by Airspan").
21.3 Intentionally Left in Blank.
21.4 The Parties agree that 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 "Bank Guarantee"), 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").
21.5 The Parties further agree that the aggregate value of the Bank
Guarantee, 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.
21.6 The Bank Guarantee will permit Axtel, on or before its expiry date, to
draw down the portion of the Bank Guarantee applicable to the funds
received by Airspan as a down payment with respect to the delivery
covered by that Bank Guarantee, 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 or a receiver, custodian,
trustee, or liquidator or itself or of all or a substantial part
of its property or its liquidation, reorganization, dissolution
or winding-up.
(v) Airspan fails to deliver Products ordered by Axtel under this
Agreement, within a period of thirty (30) days after the
delivery date applicable for such Products, pursuant the terms
of this Agreement; provided (i) that after fifteen (15) days
following 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 thirty (30) day period shall be
extended where the failure is caused by Force Majeure Event, by
the number of days for which the Force Majeure Event is in
existence (if the Force Majeure Event continue for more than 60
days, Axtel will have the right to cancel the respective
Order(s) and to collect from the Bank Guarantee all applicable
payments paid to Airspan by Axtel for such Product).
22. Second Lines Module.
22.1 Airspan hereby sells to Axtel the Second Lines Module of (i) all of
the FWA RSS Products purchased by Axtel before the Effective Date and
(ii) all of the FWA RSS Products that will be purchased by Axtel in
the future; in consideration for the Second Line Module, Axtel hereby
-20-
agrees to pay Airspan the amounts of US[ * ] within five (5) days
after the date of this Agreement, subject to the issuance of the
respective Order and the delivery of the respective invoice. Axtel
will issue the respective Order no later than 2 days after the
Effective Date of this Agreement; and Airspan will issue the invoice
no later than 2 days after receipt of the Order.
22.2 Once Axtel has made the payment to Airspan mentioned in Section 22.1,
Axtel shall have acquired the Second Lines Module of all of the FWA
RSS Products purchased and to be purchased by Axtel, without being
obligated to pay Airspan any other additional amount or charge with
respect to such use and activation of the Second Lines Module of the
FWA RSS Products.
23. Purchase Commitment
23.1 Axtel hereby irrevocably agrees to purchase from Airspan the minimum
annual amounts of Products as further described in Annex "K" hereof.
23. Titles and Subtitles
23.1 The titles and subtitles used in this Agreement are for convenience
only and are not a part of this Agreement and do not in any way limit
or amplify the terms and provisions of this Agreement.
The Parties hereto have executed this Purchase and License Agreement for FWA
Equipment as of December 28, 2004 and it shall become effective on the Effective
Date.
AXTEL, S.A. DE C.V. AIRSPAN COMMUNICATIONS LIMITED
By: _______________________________ By: ______________________________
Name: Xxxx Xxxxxxx Xxxxxxx Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: Legal Representative Title: Senior Vice President
-21-
Annex B
CHANGE ORDER PROCEDURES
ANNEX B
CHANGE ORDER PROCEDURES
The following procedure shall apply to the issuance of Change Orders under the
Agreement. Capitalized terms used and not defined herein have the meanings
attributed to them in the Agreement.
1. Change Order
Any changes made by Customer after the effective date of the
Agreement, resulting in adjustments to the content and/or
specifications of the Products, Services, process, job schedule or
other requirements shall be considered a change order ("Change
Order"). The form of Change Order is attached hereto.
1.1 Customer shall issue a written communication to the Airspan
Account Manager detailing the nature of the modifications it
wishes to make.
1.2 The Airspan Account Manager shall return to Customer with an
assessment of requirements to present a quotation.
1.3 Upon acceptance of Airspan' quotation. Customer shall issue a
Change Order in the form attached hereto and deliver it to
Airspan five (5) business days from receipt of Airspan'
quotation.
2. Non-Billable Change Order If changes to the content and specifications
of the Products or Services after the Start Date of the Agreement are
deemed non-billable to Customer by Airspan, "Non-Billable" shall be
checked off on the Change Order.
3. Customer Information In cases where the Change Order is not based on
models or merchandise, the Customer Information (CI) meeting shall be
held and a related document shall be completed by Customer with the
assistance of the Airspan' Systems Application Engineer, capturing all
network specifications. Customer shall approve this document prior to
each request for quotation and subsequent Change Order.
-2-
ANNEX B - ATTACHMENT 1
FORM OF CHANGE ORDER
Axtel, S.A. de C.V.
Re: Purchase and License Agreement dated ________
Change Order No.: _________
Circle One: Billable or Non-Billable
1. This Change Order is issued pursuant to Section 2 of the Purchase and
License Agreement, dated __________ (the "Agreement"), by and between
Axtel, S.A. de C.V. ("Customer") and Airspan Communications Limited.
This Change Order and the Products and Services to be supplied under
this Change Order shall be subject to all the terms and conditions set
forth in the Agreement.
2. This Change Order shall become effective upon execution by authorized
representatives of Airspan and Customer.
3. Origin and Description of Changes:
[insert narrative explaining reason for change]
[INSERT ONLY IF NON-BILLABLE: The purpose of this Change Order is to
notify you of some changes in the project as described below. Airspan
deems these changes non-billable. Any reference to prices or value is
for informational purposes only. Airspan requests your acknowledgement
below to the changes described in this Change Order. This Change Order
shall be deemed accepted if Airspan has not received your express
rejection within thirty days from the date set forth above.]
4. Resulting Adjustment
[address addition, deletion or change in Products to be delivered,
change in Price, Schedule, Delivery Term, etc.]
In witness whereof, the Parties have executed this Change Order on the ____ day
of ____________, 200_.
AXTEL, S.A. DE C.V.
By: ______________________________________
Print Name:________________________________
Title:_____________________________________
AIRSPAN COMMUNICATIONS LIMITED
By: ______________________________________
Print Name:________________________________
Title:_____________________________________
-3-
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
Annex C
DESCRIPTION OF PRODUCTS
Page 1
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
Annex C
DESCRIPTION OF PRODUCTS
1. DOCUMENT SCOPE
1.1 Document Scope
This document details the definition of the FWA equipment to be supplied by
Airspan to AXtel. Note that "Qty." refers to the quantity of a component
required for that configuration. Where the quantity of a component required
for a configuration differs from the unit of measure for that component,
the unit of measure is included in the description of that component.
Equipment can only be ordered in whole multiples of the associated unit of
measure.
2.1.1 FWA Description of Equipment
2.1.1.1 Intentionally Left in Blank
2.1.1.2 Customer Premise Equipment Kits.
An F2 RSS Kit is defined as follows:
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
NTEG17DA F2 XXX 0
-------------------- ------------------------------------------------ -------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ -------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ -------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ -------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ -------
NTEG99JE Drop Cable (500M) 0.04
-------------------- ------------------------------------------------ -------
NTEG99GR Dual Jacket Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ -------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ -------
An F5 RSS Kit is defined as follows (RDA KIT EXCLUDED):
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
NTEG18DA F5 XXX 0
-------------------- ------------------------------------------------ -------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ -------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ -------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ -------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ -------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ -------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ -------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ -------
Page 2
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
An F5v2 Analog RSS Kit is defined as follows:
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
XXXX00XX X0x0 Analog XXX 0
-------------------- ------------------------------------------------ -------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ -------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ -------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ -------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ -------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ -------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ -------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ -------
An F6 Single Model RSS Kit is defined as follows:
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
XXXX00XX X0 XXX 1
-------------------- ------------------------------------------------ -------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ -------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ -------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ -------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ -------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ -------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ -------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-----------------------------------------------------------------------------
An RDA Kit is defined as follows:
-------------------- ------------------------------------------------ -------
NTEG18FA RDA 1
-------------------- ------------------------------------------------ -------
An F5 RSS Kit is defined as follows:
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
NTEG18DA F5 XXX 0
-------------------- ------------------------------------------------ -------
NTEG18FA RDA Kit 1
-------------------- ------------------------------------------------ -------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ -------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ -------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ -------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ -------
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ -------
NTEG99GR Dual Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ -------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ -------
Page 3
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
2.1.1.3 Installation Brackets for F5 & F2 RSS.
Compact Mounting Bracket
-------------------- ------------------------------------------------ -------
PEC Description Qty.
-------------------- ------------------------------------------------ -------
NTEG19AJ Compact Mounting Bracket (10) 1
-------------------- ------------------------------------------------ -------
NTEG99DC Mounting Coach Screw (200) 0.015
-------------------- ------------------------------------------------ -------
NTEG99DD Washer M8 (200) 0.015
-------------------- ------------------------------------------------ -------
NTEG99DE Frame Fixing(200) 0.015
-------------------- ------------------------------------------------ -------
2.1.1.4 Radio Basestation Kits
Discrete Radio Basestation Configurations.
The following configurations are representative of a typical
installation. Specific installations may require variations on these
definitions.
------------------- ------------------------------- -------------- -------------
PEC Description 18b RBS 27b RBS
------------------- ------------------------------- -------------- -------------
NTED4575 Transceiver Processor Module 5 7
------------------- ------------------------------- -------------- -------------
NTEG72AD Transceiver Baseband Module 5 7
Combining Diversity
------------------- ------------------------------- -------------- -------------
NTEG77EC Transceiver Masthead Unit Kit 6 9
------------------- ------------------------------- -------------- -------------
NTEG97PC Antenna to TMU 4m Cable 6 9
------------------- ------------------------------- -------------- -------------
NTEG94BD 1M Pre-Fit Cabinet 1 2
------------------- ------------------------------- -------------- -------------
NTEG63AA Transceiver Timer Module 0 0
------------------- ------------------------------- -------------- -------------
NTEG73AA Network Management Module 0 0
------------------- ------------------------------- -------------- -------------
NTEG99CJ TMU to Cabinet IF 1/2 " cable 0.6 0.9
(500m)
------------------- ------------------------------- -------------- -------------
NTEG91BA 1/2 " IF Cable Connector Kit 6 9
------------------- ------------------------------- -------------- -------------
NTEG99CE TMU to Cabinet Power cable 0.6 0.9
(500m)
------------------- ------------------------------- -------------- -------------
NTEG93AA Power Cable Connector Kit 6 9
------------------- ------------------------------- -------------- -------------
NTEG99CA TMU to Cabinet Data Cable 0.6 0.9
(500m)
------------------- ------------------------------- -------------- -------------
NTEG92AA Data Cable Connector Kit 6 9
------------------- ------------------------------- -------------- -------------
------------------- ------------------------------- -------------- -------------
PEC Description 18b RBS 27b RBS
------------------- ------------------------------- -------------- -------------
NTEG97MF 120 Degree Horizontal Up to 6 Up to 9
Polarization Antenna
------------------- ------------------------------- -------------- -------------
NTEG97ME 120 Degree Vertical Up to 6 Up to 9
Polarization Antenna
------------------- ------------------------------- -------------- -------------
NTEG97NF 60 Degree Horizontal Up to 6 Up to 9
Polarization Antenna
------------------- ------------------------------- -------------- -------------
NTEG97NE 60 Degree Vertical Up to 6 Up to 9
Polarization Antenna
------------------- ------------------------------- -------------- -------------
Page 4
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
------------------- ------------------------------- -------------- -------------
NTEG97NG 40 Degree Vertical 0 0
Polarization Antenna
------------------- ------------------------------- -------------- -------------
NTEG97NH 40 Degree Horizontal 0 0
Polarization Antenna
------------------- ------------------------------- -------------- -------------
NTEG94PA 120 Ohms primary E1 cable 1 2
------------------- ------------------------------- -------------- -------------
With regard to antennas for the various basestation configurations, the
quantities shown above reflect the maximum number of each antenna that could be
required in a specific installation. The combined total actual antenna
requirement for each configuration is:
18b - 6
27b - 9
48b - 18
For clarity, XXXX00XX (0X Pre-Fit Cabinet) and NTEG77EC (Transceiver Masthead
Unit Kit) are defined as follows:
------------------------------------------------------------------------------------------------------
XXXX00XX 0X Pre-Fit Cabinet
------------------------------------------------------------------------------------------------------
PEC Description Qty.
------------------- -------------------------------------------------------------------------- -------
NTED4575 Transceiver Processor Module 1
------------------- -------------------------------------------------------------------------- -------
NTEG63AA Transceiver Timer Module 2
------------------- -------------------------------------------------------------------------- -------
NTEG72AD Transceiver Baseband Module Combining Diversity 1
------------------- -------------------------------------------------------------------------- -------
NTEG73AA Network Management Module 1
------------------- -------------------------------------------------------------------------- -------
NTEG7662 CABINET CABLE SET TYPE 2 1
------------------- -------------------------------------------------------------------------- -------
NTEG74BA Over Voltage Protection Module 3
------------------- -------------------------------------------------------------------------- -------
NTEG76BA ITS Fan Tray Assembly 1
------------------- -------------------------------------------------------------------------- -------
NTEG76CC Secondary DC Breaker Rack Filtered 1
------------------- -------------------------------------------------------------------------- -------
NTEG76FB I.T.S Basestation Diversity Sub Rack 1
------------------- -------------------------------------------------------------------------- -------
NTEG76GA I.T.S U.K Maintenance Port Assembly 1
------------------- -------------------------------------------------------------------------- -------
NTEG94AN 1.0M Cabinet Floor Mounting Plinth 1
------------------- -------------------------------------------------------------------------- -------
NTEG94FA Alarm Connector Block 1
------------------- -------------------------------------------------------------------------- -------
NTEG94QA 1.0M Internal ITS Cabinet 1
------------------- -------------------------------------------------------------------------- -------
------------------------------------------------------------------------------------------------------
NTEG77EC Transceiver Masthead Unit Kit
------------------- -------------------------------------------------------------------------- -------
PEC Description Qty.
------------------- -------------------------------------------------------------------------- -------
NTEG77CA T.M.U./T.A.S. Ground Bond Kit 1
------------------- -------------------------------------------------------------------------- -------
NTEG77DA Sun Shield Assembly 1
------------------- -------------------------------------------------------------------------- -------
NTEG77GB T.M.U. Assemble BF Band (100MHz) 1
------------------- -------------------------------------------------------------------------- -------
P0821020 U Bolt 61 C R S 2
------------------- -------------------------------------------------------------------------- -------
P0821021 U Bolt 126 C R S 2
------------------- -------------------------------------------------------------------------- -------
P0834843 T.M.U. Mounting Bracket V3 1
------------------- -------------------------------------------------------------------------- -------
2.1.1.5 Discrete Radio Basestation Upgrade Configurations.
The following configurations are representative of a typical installation,
eg. 45m cable runs assumed. Specific installations may require variations
on these definitions.
Page 5
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
------------------- --------------------------- ---------------- -------------------
PEC Description 18b to 27b PDS Upgrade to
Upgrade 18b ITS
------------------- --------------------------- ---------------- -------------------
NTED4575 Transceiver Processor 2 0
Module
------------------- --------------------------- ---------------- -------------------
NTEG72AD Transceiver Baseband 2 0
Module Combining Diversity
------------------- --------------------------- ---------------- -------------------
NTEG77EC Transceiver Masthead Unit 3 0
Kit
------------------- --------------------------- ---------------- -------------------
NTEG97PC Antenna to TMU 4m Cable 3 0
------------------- --------------------------- ---------------- -------------------
NTEG94BD 1M Pre-Fit Cabinet 1 0
------------------- --------------------------- ---------------- -------------------
NTEG63AA Transceiver Timer Module 0 0
------------------- --------------------------- ---------------- -------------------
NTEG73AA Network Management Module 0 0
------------------- --------------------------- ---------------- -------------------
NTEG99CJ TMU to Cabinet IF1/2" 0.3 0
cable (500m)
------------------- --------------------------- ---------------- -------------------
NTEG91BA 1/2" IF Cable Connector 3 0
Kit
------------------- --------------------------- ---------------- -------------------
NTEG99CE TMU to Cabinet Power 0.3 0
cable (500m)
------------------- --------------------------- ---------------- -------------------
NTEG93AA Power Cable Connector Kit 3 0
------------------- --------------------------- ---------------- -------------------
NTEG99CA TMU to Cabinet Data Cable 0.3 0
(500m)
------------------- --------------------------- ---------------- -------------------
NTEG92AA Data Cable Connector Kit 3 0
------------------- --------------------------- ---------------- -------------------
NTEG97MF 120 Degree Horizontal Up to 3 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG97ME 120 Degree Vertical Up to 3 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG97NF 60 Degree Horizontal Up to 3 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG97NE 60 Degree Vertical Up to 3 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG97NG 40 Degree Vertical 0 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG97NH 40 Degree Horizontal 0 0
Polarization Antenna
------------------- --------------------------- ---------------- -------------------
NTEG71HA Transceiver processor 0 2
Module - Packet Data
------------------- --------------------------- ---------------- -------------------
N/A Packet Data Software 0 1
Activation Fee
------------------- --------------------------- ---------------- -------------------
With regard to antennas for the various basestation upgrade
configurations, the quantities shown above reflect the maximum
number of each antenna that could be required in a specific
installation. The combined total actual antenna requirement
for each upgrade configuration is:
18b to 27b Upgrade - 3
27b to 48b Upgrade - 12
Page 6
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
2.1.1.6 FWA Software.
------------ -------------------------------------------------------- ----------
PEC Description Qty.
------------ -------------------------------------------------------- ----------
N/A Basestation Packet Data Software Activation Fee 1
------------ -------------------------------------------------------- ----------
1
RMT SOFTWARE LICENSE FEE
------------ -------------------------------------------------------- ----------
2.1.1.7 FWA OA&M Equipment.
Field Engineering Terminal (FET).
Choose one of the following.
--------------- -------------------------------------------------------- -------------
PEC Description Qty.
--------------- -------------------------------------------------------- -------------
NTEG30AN FET System Complete (LINUX)on Panasonic CF27 1
--------------- -------------------------------------------------------- -------------
NTEG30AF LINUX FET Software Application Kit for Panasonic CF27 1
--------------- -------------------------------------------------------- -------------
Residential Installation System (RIS).
Survey Kit
------------------ -------------------------------------------------------- -------------
PEC Description Qty.
------------------ -------------------------------------------------------- -------------
NTEG24BF 100 MHz Generic Survey Kit 1
------------------ -------------------------------------------------------- -------------
NTEG10DCBV RSS Installation Sub-Set Documentation 1
------------------ -------------------------------------------------------- -------------
P0872025 Large Belt 1
------------------ -------------------------------------------------------- -------------
NTEG24BE RTU SAK/Handle Pole Kit (5.5m extension kit) 1
------------------ -------------------------------------------------------- -------------
NTEG22EB RTU SAK/Handle Assembly 1
------------------ -------------------------------------------------------- -------------
A0734347 GPS 1
------------------ -------------------------------------------------------- -------------
A0658055 Linesman Phone U.S. 1
------------------ -------------------------------------------------------- -------------
Maintenance Kit
---------------- -------------------------------------------------------- ------------
PEC Description Qty.
---------------- -------------------------------------------------------- ------------
NTEG24AA 100MHz Generic Maintenance Kit 1
---------------- -------------------------------------------------------- ------------
NTEG21ND PSA Mains Adapter U.S. 1
---------------- -------------------------------------------------------- ------------
A0745625 RMT Mains Adapter U.S. 1
---------------- -------------------------------------------------------- ------------
A0657248 Modem 1
---------------- -------------------------------------------------------- ------------
A0655833 Multimeter 1
---------------- -------------------------------------------------------- ------------
NTEG21PB Vehicle charging Cable 1
---------------- -------------------------------------------------------- ------------
A0743766 RMT Docking Holster 1
---------------- -------------------------------------------------------- ------------
Radio Element Manager (REM).
The following configurations are representative of a typical
installation. Specific installations may require variations on these
definitions.
Page 7
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------- --------------
PEC Description Qty.
---------------- ------------------------------------------------------------------- --------------
NTEG43AC HP Unix Server 1
---------------- ------------------------------------------------------------------- --------------
NTEG41GD REM Redundancy Upgrade Kit with Online Backup 1
---------------- ------------------------------------------------------------------- --------------
NTEG41EG REM Processor Upgrade Kit 1
---------------- ------------------------------------------------------------------- --------------
A0784688 HP 3.5" hot swappable drive for HP D-CAL 1
---------------- ------------------------------------------------------------------- --------------
NTEG43AA HP Client Workstation 1
---------------- ------------------------------------------------------------------- --------------
NTEJ40BK Radio Element Manager Software Platform 4.4.2 1
---------------- ------------------------------------------------------------------- --------------
NTEG42CB Snmp Ethernet Network Mgt. Card Type 2 1
---------------- ------------------------------------------------------------------- --------------
NTEG42BC Network Hub 16 Slot Chassis,Fantray, Hipernmc & Dual Psu 1
---------------- ------------------------------------------------------------------- --------------
NTEG42FB 60 Channel Netserver Ethernet L A N Card 1
---------------- ------------------------------------------------------------------- --------------
NTEG42GM Quad Modem Card With S/Xxxx Type 1 1
---------------- ------------------------------------------------------------------- --------------
NTEG43AD Unix Server annual support 1
---------------- ------------------------------------------------------------------- --------------
NTEG43AB Client Workstation annual support 1
---------------- ------------------------------------------------------------------- --------------
NTEJ40GC Remedy ARS Support 1
---------------- ------------------------------------------------------------------- --------------
NTEJ40JC Oracle RDBMS Support 1
---------------- ------------------------------------------------------------------- --------------
A0743702 Openview SW Support 1
---------------- ------------------------------------------------------------------- --------------
NTEG42KA Network Hub Annual SW Maintenance 1
---------------- ------------------------------------------------------------------- --------------
A0743715 SW support XXXX 1
---------------- ------------------------------------------------------------------- --------------
A0740374 Power cord grounded North America 0
---------------- ------------------------------------------------------------------- --------------
NTEJ40AE REM Exceed SW 1
---------------- ------------------------------------------------------------------- --------------
NTEG41HB 10 BASE-T SWITCHING HUB-24R 1
---------------- ------------------------------------------------------------------- --------------
2.1.1.8 FWA Equipment Spares.
------------------- ---------------------------------------------------------------- --------------
PEC Description Qty. Per
------------------- ---------------------------------------------------------------- --------------
NTED4575 Transceiver Processor Module 1
------------------- ---------------------------------------------------------------- --------------
NTEG72AD Transceiver Baseband Module Combining Diversity 1
------------------- ---------------------------------------------------------------- --------------
NTEG77EC Transceiver Masthead Unit Kit 1
------------------- ---------------------------------------------------------------- --------------
NTEG97PC Antenna to TMU 4m Cable 1
------------------- ---------------------------------------------------------------- --------------
NTEG76BA ITS Fan Tray Assembly 1
------------------- ---------------------------------------------------------------- --------------
NTEG76CC Secondary DC Breaker Rack Filtered 1
------------------- ---------------------------------------------------------------- --------------
NTEG76FB I.T.S Basestation Diversity Sub Rack 1
------------------- ---------------------------------------------------------------- --------------
NTEG76GA I.T.S U.K Maintenance Port Assembly 1
------------------- ---------------------------------------------------------------- --------------
NTEG94QA 1.0M Internal ITS Cabinet 1
------------------- ---------------------------------------------------------------- --------------
NTEG74BA Over Voltage Protection Module 3
------------------- ---------------------------------------------------------------- --------------
NTEG63AA Transceiver Timer Module 1
------------------- ---------------------------------------------------------------- --------------
NTEG73AA Network Management Module 1
------------------- ---------------------------------------------------------------- --------------
NTEG99CJ TMU to Cabinet IF 1/2"Cable 500m
------------------- ---------------------------------------------------------------- --------------
NTEG91BA 1/2" IF Cable Connector Kit 1
------------------- ---------------------------------------------------------------- --------------
NTEG99CE TMU to Cabinet Power Cable 500m
------------------- ---------------------------------------------------------------- --------------
NTEG93AA Power Cable Connector Kit 1
------------------- ---------------------------------------------------------------- --------------
NTEG99CA TMU to Cabinet Data Cable 500m
------------------- ---------------------------------------------------------------- --------------
NTEG92AA Data Cable Connector Kit 1
------------------- ---------------------------------------------------------------- --------------
NTEG97ME 120 Degree Vertical Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
------------------- ---------------------------------------------------------------- --------------
PEC Description Qty. Per
------------------- ---------------------------------------------------------------- --------------
NTEG97MF 120 Degree Horizontal Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
NTEG97NE 60 Degree Vertical Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
NTEG97NF 60 Degree Horizontal Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
NTEG97NG 40 Degree Vertical Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
NTEG97NH 40 Degree Horizontal Polarization Antenna 1
------------------- ---------------------------------------------------------------- --------------
Page 8
Annex C - Description of Products
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
------------------- ---------------------------------------------------------------- --------------
NTEG71HA Transceiver Processor Module - Packet Data 1
------------------- ---------------------------------------------------------------- --------------
NTEG18DA F5 XXX 0
------------------- ---------------------------------------------------------------- --------------
NTEG18FA RDA Kit 1
------------------- ---------------------------------------------------------------- --------------
NTEG12FA RPCU 1
------------------- ---------------------------------------------------------------- --------------
A0636762 RPCU Battery 1
------------------- ---------------------------------------------------------------- --------------
NTEG12CL RPCU Power Cord 1
------------------- ---------------------------------------------------------------- --------------
NTEG12FB RPCU Safety Booklet 1
------------------- ---------------------------------------------------------------- --------------
NTEG99JE Dual Jacket Drop Cable 500m
------------------- ---------------------------------------------------------------- --------------
NTEG99GR Dual Jacket Drop Cable Connector 50
------------------- ---------------------------------------------------------------- --------------
NTEG99CZ Drop Cable Connector Pins 500
------------------- ---------------------------------------------------------------- --------------
NTEG17DA F2 XXX 0
------------------- ---------------------------------------------------------------- --------------
XXXX00XX X0 XXX 1
------------------- ---------------------------------------------------------------- --------------
NTEG18DB F5v2 XXX 0
------------------- ---------------------------------------------------------------- --------------
Page 9
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.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
Annex D
Product Specifications
Page 1
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.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
Annex D
Product Specifications
PLA FWA Contract
1. Scope
1.1 This section defines the essential performance characteristics of the
Airspan Internet Fixed Wireless Access system (Internet FWA). The scope of
the section is confined to the airside equipment that supports wireless
transmission in the local loop, i.e. that part of the system from the
Base-station network interface to the subscriber premises terminal
interface (telephone socket), together with associated network management
operations systems in the element management layer. The specifications for
the switch, service gateway and other associated backhaul equipment are
therefore specifically excluded from this section.
2.1 General description
2.1.1 Intentionally Left in Blank
2.1.1.1 Purpose of Internet FWA
The Internet FWA system allows telecommunications operators to construct
high quality telephone access networks between customers' premises and
local exchanges. The system uses cellular point to multi-point wireless
technology as a replacement for traditional copper-based local loops. A
major advantage of FWA technology is that it allows operators to create new
access networks quickly and with minimum capital investment.
Each terminal in the Internet FWA system is capable of delivering PSTN
circuit-switched services through two standard analogue telephone lines. In
addition to the PSTN services, a packet-mode service may be used to deliver
`always-on' connections between one or more Internet Service Providers
(ISPs) and the computer equipment of subscribers.
The Internet FWA system provides a frequency division duplex radio link to
a subscriber transceiver system and operates in the 3.4 to 3.6 GHz band.
The air interface utilizes time division multiplex on the downlink and time
division multiple access on the uplink. The system comprises a network of
Radio Base-stations (RBS) arranged on a cellular plan and these are
connected to the PSTN or to the public Internet by a conventional back-haul
network. Each base-station consists of one or more Integrated Transceiver
Systems (ITSs).
2.1.2 Sub-systems
The Internet FWA system contains two Network elements (NEs):
o Remote Service System (RSS)
o Radio Base Station (RBS)
Page 2
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and Exchange Commission as part of the Company's confidential treatment request.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
The Internet FWA system contains three Operations systems (OSs):
o Radio Element Manager (REM)
o RSS Installation System (RIS)
o Field Engineering Terminal (FET)
The Remote Service System (RSS)
This system provides the subscriber with two independent analogue exchange
lines and optionally a packet data service interface. The system consists
of the RSS Terminal Unit (RTU), an RSS Power and Connection unit (RPCU) and
an RSS Data Adapter (RDA) or Dongle Data Adaptor
The RTU is mounted externally to the subscriber premises and contains a
directional antenna, radio electronics and the two analogue line interfaces
to carry PSTN services. The unit is powered from the RPCU indoor unit that
plugs into the subscribers mains supply. A `drop cable' connects the RTU to
the RPCU. The RPCU contains two sets of telephone sockets for connection to
the subscriber's telephone equipment. In order to provide the optional
packet data service, an RDA is supplied along with a special version of the
RTU that contains the required data interface. The packet data service
makes use of the HPNA standard to multiplex the data onto `line 0' of the
telephone wires. The RDA connects to the subscriber's personal computer.
The Integrated Transceiver System (ITS)
One or more ITSs form the basis of the radio base-station and have been
designed to serve an area of up to 5km radius in a typical urban
environment and up to 20km in a rural environment.
Voice band circuits from the ITS are connected to the switch by means of E1
links running a V5.2 protocol. The packet data service is also routed over
E1 links to the service gateway using L2TP (layer 2 tunnel protocol). The
ITS can route any slot from the `circuit' E1s to any slot on the airside
interface.
In principle, an ITS can be provisioned as a 3, 6, 9, 12, 15 or 18 bearer
configuration. RBS configurations specifically supported by installation
and maintenance processes provide tri-sectored configurations with 18 or
27(1) RF carriers, or a tri/hex-sectored RBS with 48 RF carriers. The
27-carrier configurations require the use of two ITSs, and the 48-carrier
configuration requires the use of three ITSs. The 48 bearer base-station is
designed to provide coverage in two `RF layers', the first layer allowing a
frequency re-use of one to be employed whilst a more conservative frequency
plan is used in the other layer. Service to the individual RSS can be
switched between these two layers depending on the interference environment
experienced at that RSS.
Radio Element Manager (REM)
----------
(1) In the Axtel application, the 27 bearer base-stations generally provide
only 26 bearers due to limited availability of RF channels.
Page 3
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and Exchange Commission as part of the Company's confidential treatment request.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
The Radio Element Manger (REM) is a high performance, high capacity
management system and is used to perform the Operation, Administration,
Maintenance and Provisioning (OAM&P) procedures for the Internet FWA
network. One REM can manage up to 200 ITSs and 150,000lines. The REM is
primarily composed of a server platform, a client platform, additional user
PCs and a Network Communications Server. Their respective purposes are
described below. The REM supports a total of 4 expert and 4 standard user
sessions.
The REM server performs all provisioning related, object-related, event and
alarm related processing, together with some of the GUI processing.
Further, the server stores all object, event and alarm related data and
state. As such, the majority of REM software executes on the server. The
server also interfaces directly to a customer's High Level Management
System (HLMS) for subscriber provisioning.
The REM Client primarily acts as the host platform for the additional user
GUI screens. It provides some of the GUI processing, and acts as a platform
on which additional user scripts run.
PCs running Exceed software connect with the REM client to allow access for
additional users.
The Network Communication Server (NCS) is an integrated terminal server and
modem unit, which provides a connectivity solution from the REM to its
network of ITSs. It also provides connectivity to the Remote Maintenance
Terminal that is used during the subscriber hardware installation.
Field engineering terminal (FET)
The installing engineer will use this equipment during installation and
commissioning of Base-station equipment. The FET application runs on a PC
platform using a LINUX operating system. The FET is intended to connect
locally into an ITS and allows control of the ITS as well as access to
status information. Each FET requires a license key to enable operation and
these are available from Airspan.
RSS Installation system (RIS)
The installing engineer will use this equipment to control the RSS during
installation, to aid antenna alignment to the Base Station, to measure the
performance of the RF link and to enable the connection. The primary
component of the RIS is the Remote Maintenance Terminal (RMT).
2.1.3 External interfaces
The physical layer external interfaces of the Internet FWA system are:
o Analogue line interface at the RSS
o Packet data interface at the RSS
o A.C. power interface at the RSS
o PCM (E1) interface at the RBS
o Packet data (E1) interface at the RBS
o D.C. power interface at the RBS
Page 4
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Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
o External alarm interface at the RBS
o Analogue line interface at the RIS. This is used to connect the RMT to
the REM to download provisioning data.
o Analogue line interface at the REM
o Ethernet interface at the REM. This is used to connect the REM to
higher-layer operations systems.
2.2 Physical characteristics
2.2.1 RSS transceiver unit (RTU)
2.2.1.1 Mechanical
Length/width: 300 mm (octagonal, measured between flat faces) Depth: 90 mm
excluding mounting brackets Mass: 2.5 kg.
2.2.1.2 Environmental
Ambient temperature: -40 C to +50 C
Solar radiation: <= 1120 W/m(2)
Relative humidity: 5% to 100%
2.2.2 RSS power and connection unit (RPCU)
2.2.2.1 Mechanical
Length: 210 mm
Width: 135 mm
Depth: 41 mm
Mass: 2.0 kg including battery
2.2.2.2 Electrical
Input voltage: 85 V to 270 V RMS
Input frequency: 45 Hz to 70 Hz
2.2.2.3 Environmental
Ambient temperature: -5 C to +45 C
Relative humidity 5% to 100%
2.2.3 RSS data adaptor (RDA)
2.2.3.1 Mechanical
Length: 165 mm
Width: 125 mm
Depth: 28 mm
Mass: 250 g
Page 5
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and Exchange Commission as part of the Company's confidential treatment request.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
2.2.3.2 Environmental
Ambient temperature: -5C to +45C
Relative humidity: 5% to 100%
2.2.4 Integrated transceiver system (ITS) indoor equipment
2.2.4.1 Mechanical
Width: 600mm
Height and depth (1 metre cabinet): 1000 mm x 300 mm
2.2.4.2 Environmental
Ambient temperature: 0 C to +45 C
Solar radiation: <= 700 W/m(2)
Relative humidity: 5% to 95%
2.2.5 Integrated transceiver system (ITS) masthead equipment
2.2.5.1 Mechanical (TMU)
Height: 600 mm
Width: 450 mm
Depth: 200 mm
Mass: <= 30 kg
2.2.5.2 Environmental
Ambient temperature: -40 C to +50 C
Solar radiation: <= 1120 W/m(2)
Relative humidity: 5% to 100%
2.3 Radio system
2.3.1 General description of the air interface
2.3.1.1 Physical layer
The physical layer of the Internet FWA air interface uses digital time
division multiplex/time division multiple access (TDM/TDMA) with a 10-slot
frame structure. Uplink and downlink carriers are paired, and separated by
a fixed duplex spacing of 99.84MHz. A TDM/TDMA channel (i.e. one time-slot
one on one RF carrier) is known as a physical channel. In the maximum
configuration, one ITS provides 18 pairs of RF carriers, and 180 physical
channels.
The uplink carriers are contained within the frequency band 3425 MHz to
3450 MHz, and the downlink carriers are contained within the frequency band
3525 MHz to 3550 MHz.
The modulation scheme for both the uplink and downlink direction is pi/4
shifted differential quadrature phase shift keying ((pi)/4DQPSK) with a
nominal symbol rate of [ * ] symbols/s. The gross data rate is [ * ]
kbits/s per carrier.
Page 6
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--------------------------------------------------------------------------------
Reserved channels are used to allow contention access by terminals. These
access channels are not available for carrying subscribers' voice or data
traffic.
2.3.1.2 Channel plan
The Internet FWA system operates over 78 RF channels, with a nominal
channel spacing of 307.2 kHz. The lowest uplink channel (Ch. 2) has a
nominal centre frequency of 3425.8944 MHz. The highest downlink channel
(Ch. 79) has a nominal centre frequency of 3549.3888 MHz. The fixed duplex
spacing is equivalent to 325 times the channel spacing.
2.3.1.3 MAC layer for PSTN traffic
One physical channel is capable of carrying a single 32 kbit/s ADPCM
circuit-switched connection, or one half of a 64 kbit/s PCM
circuit-switched connection.
2.3.1.4 MAC layer for the Packet data service
Physical channels can be allocated in groups of six to carry packet-mode
traffic. One group of six physical channels is described as a packet
channel.
2.3.2 RF performance of the ITS equipment
2.3.2.1 Maximum transmit power
The maximum transmit power from the ITS is not less than 28 dBm for each
carrier, measured at the antenna port of the TMU.
2.3.2.2 Transmitter implementation loss
The transmitted signal from the ITS is a close approximation to an ideal
(pi)/4DQPSK signal. The additional carrier to noise margin required to
demodulate the practical transmitted signal, compared to an ideal signal is
less than 1 dB.
2.3.2.3 Spectrum due to modulation
The spectrum due to modulation at the output of the ITS is as follows:
---------------------------------- ----------------------------------------
Channel Mean power (dBc)
---------------------------------- ----------------------------------------
N 0 dBc (by definition)
N +/- 1 <= -24.5 dBc
N +/- 2 <= -40 dBc
N +/- 3 <= -50 dBc
Any other channel <= -60 dBc or -60 dBm (whichever is
greater)
---------------------------------- ----------------------------------------
Page 7
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--------------------------------------------------------------------------------
The mean power is measured using an ideal receiver with
root-raised-cosine filtering with transition factor ((alpha)) =
0.4, and with the receiver tuned to the centre of the appropriate
adjacent channel.
2.3.2.4 Minimum receiver sensitivity
The receiver sensitivity for the ITS is not greater than -101.5 dBm,
measured at the antenna port of the TMU, for a bit error ratio (BER) of
10-3 before forward error correction. This measurement assumes an ideal
transmitter.
2.3.2.5 Receiver selectivity
The ITS receiver selectivity is specified in terms of the level of
interfering signal consistent with a bit error ratio (BER) for the wanted
signal of less than 10-(3) before FEC. The interfering signal is assumed to
be from a signal source with the ideal characteristics of the Internet FWA
radio system, centered on the applicable adjacent channel. The wanted
signal is assumed to be from a similar ideal source and set at a level 3 dB
greater than the level required for BER = 10-(3) in the absence of
interference. The carrier to interference levels are as follows:
---------------------------------- ----------------------------------------
Channel Carrier/Interference ratio for
BER = 10-(3)
---------------------------------- ----------------------------------------
N <= 14.4 dB
N +/- 1 <= -15.5 dB
N +/- 2 <= -58.5 dB
Any other channel <= -84.5 dBc
---------------------------------- ----------------------------------------
2.3.3 RF performance of the RSS equipment
2.3.3.1 Maximum transmit power
The maximum transmit power from the RSS is not less than 44.5 dBm EIRP in
RF channels 8 to 73 inclusive, and not less than 41.5 dBm EIRP in the
remaining channels. This transmit power specification applies to the
complete RTU including the antenna.
2.3.3.2 Transmitter implementation loss
The transmitted signal from the RSS is a close approximation to an ideal
(pi)/4DQPSK signal. The additional carrier to noise margin required to
demodulate the practical transmitted signal, compared to an ideal signal is
less than 1 dB.
Page 8
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2.3.3.3 Spectrum due to modulation
The spectrum due to modulation at the output of the RSS is as follows:
-------------------------------- -------------------------------
Channel Mean power (dBc)
-------------------------------- -------------------------------
N [ * ]
N +/- 1 [ * ]
N +/- 2 [ * ]
N +/- 3 [ * ]
Any other channel [ * ]
-------------------------------- -------------------------------
The mean power is measured using an ideal receiver with root-raised-cosine
filtering with transition factor ((alpha)) = 0.4, and with the receiver
tuned to the centre of the appropriate adjacent channel. The measured power
is averaged over duration of the time-slot containing the uplink
transmission.
2.3.3.4 Minimum receiver sensitivity
The receiver sensitivity for the RSS is not greater than [ * ] dBm in RF
channels 8 to 73 inclusive, and not greater than [ * ] dBm in the remaining
channels. The received signal is measured at the connector of the RTU
antenna, for a bit error ratio (BER) of 10-3 before forward error
correction. This measurement assumes an ideal transmitter.
2.3.3.5 Receiver selectivity
The RSS receiver selectivity is specified in terms of the level of
interfering signal consistent with a bit error ratio (BER) for the wanted
signal of less than 10-(3) before FEC. The interfering signal is assumed to
be from a signal source with the ideal characteristics of the Internet FWA
radio system, centered on the applicable adjacent channel. The wanted
signal is assumed to be from a similar ideal source and set at a level 3 dB
greater than the level required for BER = 10-(3) in the absence of
interference. The carrier to interference levels are as follows:
---------------------------------- ----------------------------------------
Channel Carrier/Interference ratio for
BER = 10-(3)
---------------------------------- ----------------------------------------
N [ * ]
N +/- 1 [ * ]
N +/- 2 [ * ]
N +/- 3 [ * ]
N +/- 4 [ * ]
N +/- 5 [ * ]
Any other channel Blocking specification applies
---------------------------------- ----------------------------------------
Page 9
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2.3.3.6 RSS receiver dynamic range
The dynamic range of the RSS receiver is from the limit of sensitivity to
-20 dBm, measured at the antenna connector of the RTU. Over this dynamic
range the BER of the received signal (measured before forward error
correction) is not greater than 10-3.
2.3.3.7 RSS antenna gain
The gain of the RSS antenna is between [ * ] dBi and [ * ] dBi at the peak
of the response. The nominal beamwidth is 14 degrees (i.e. +/- 7 degrees).
The rejection of cross-polar signals in the main antenna response is not
less than 20 dB compared to a co-polar signal of identical level. The
maximum level of side-lobe responses is [ * ] dBi, and this limit applies
at azimuth angles from 22 degrees to 338 degrees with respect to the peak
response.
2.3.4 Automatic power control
To minimise interference in the network, the system incorporates automatic
uplink RF power control whereby the ITS attempts to maintain a constant
received signal strength (RSSI) of -80dBm for each active call or packet
connection. If the RSSI strays from this target, the ITS will send a
message to the appropriate RSS requesting an appropriate modification to
the uplink RF power. The ITS normally integrates the RSSI over a 30s period
before deciding whether an adjustment is required although there is a
faster attack period at the start of a call or packet connection. At the
end of a call or connection, the RSS calculates a new RF power that will be
used to initiate the next call or connection on the same RF channel.
To maintain an appropriate initial uplink RF power level during extended
periods of call inactivity, network test calls are automatically scheduled
to each RSS on each of its operating channels. Just as is the case for
normal calls, the uplink RF power is adjusted appropriately at the end of a
network test call. The scheduling period is normally set to 23 hours.
2.3.5 Combining diversity
In ITS configurations with 2 or more TMUs per sector, the system is
configured to execute two-path maximum ratio combining in the uplink. The
implementation of this feature delivers the theoretical benefit of maximum
ratio combining with less than 1 dB implementation loss.
The TMU receiver is wideband and covers all of the uplink spectrum. This
means that the IF signals from 2 TMUs in the same sector differ only by
virtue of being received from
Page 10
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2 physically separated antennas. The two I.F signals are fed to separate
arms of each receiver pair of every TBM in the sector. The TBM hosts three
such receiver pairs where each pair is configured to an appropriate
channel. The maximum ratio combining algorithm is executed independently on
each receiver pair.
2.3.6 Dynamic carrier list management
Dynamic carrier list management feature allows each RSS to modify the
classification of individual RF carriers in response to periodic
measurements of the received (downlink) signal. Each RSS notifies the ITS
of changes in carrier classification, allowing the ITS to allocate channels
with a priority reflecting the recent quality of downlink carriers. This
feature has proven to be effective in combating the effects of static
frequency-selective fading, and minimizing the impact of downlink radio
interference from nearby RBSs in the same network. This feature is
extremely valuable in networks where tri-sector and tri/hex-sector RBSs are
built in adjacent or nearby cells.
2.4 Equipment configurations
2.4.1 RBS configurations
RBS configurations that can be constructed using SR14 consist of one, two
or three ITSs. The table below lists the configurations that can be used.
------------------------------------------- ------------------ --------- ---------- ------------
Base station configuration ITS sector
organisation Circuit- Packet- Maximum
switched switched number of
E1s E1s E1
connections
------------------------------------------- ------------------ --------- ---------- ------------
18-carrier, tri-sector, Type I 6.6.6 6 0, 2 8
------------------------------------------- ------------------ --------- ---------- ------------
26-carrier, tri-sector, Type II 6.6.5 6 0, 2 11
------------------------------------------- ------------------ --------- ---------- ------------
3.3.3 3 0
------------------------------------------- ------------------ --------- ---------- ------------
26-carrier, tri-sector, Type III 9.8 6 0, 2 13
------------------------------------------- ------------------ --------- ---------- ------------
9 3 0, 2
------------------------------------------- ------------------ --------- ---------- ------------
26-carrier, tri-sector, Type IV 9.9 6 0, 2 13
------------------------------------------- ------------------ --------- ---------- ------------
8 3 0, 2
------------------------------------------- ------------------ --------- ---------- ------------
27-carrier, tri-sector, Type I 6.6.6 6 0, 2 11
------------------------------------------- ------------------ --------- ---------- ------------
Page 11
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------------------------------------------- ------------------ --------- ---------- ------------
Base station configuration ITS sector
organisation Circuit- Packet- Maximum
switched switched number of
E1s E1s E1
connections
------------------------------------------- ------------------ --------- ---------- ------------
3.3.3 3 0
------------------------------------------- ------------------ --------- ---------- ------------
27-carrier, tri-sector, Type II 9.9 6 0, 2 13
------------------------------------------- ------------------ --------- ---------- ------------
9 3 0, 2
------------------------------------------- ------------------ --------- ---------- ------------
48-carrier, tri/hex-sector 6.6.4 5 0, 2 21
------------------------------------------- ------------------ --------- ---------- ------------
6.6.4 5 0, 2
------------------------------------------- ------------------ --------- ---------- ------------
6.6.4 5 0, 2
------------------------------------------- ------------------ --------- ---------- ------------
The column `ITS sector organization' denotes the number of RF carriers than
are enabled in each sector. No relationship is implied between the position
of the elements of this list and the numbering of ITS sectors; thus a
sector organization of 6.6.5 applies equally to configurations where the
five-carrier sector is ITS sector 1, 2 or 3.
The tri/hex configuration is described as 6.6.4. The six-carrier sectors
are associated with the hex-sectored antennas, and the four-carrier sector
is associated with the tri-sectored antennas. By default, the tri-sector is
ITS sector 1.
The following rules apply:
o Where PDS is required at an ITS, two TPM-PDs must be fitted.
o Each TPM requires one E1 connection between the ITS and the local
exchange.
o Each TPM-PD requires one E1 connection between the ITS and the service
gateway.
Some of the base station configurations make use of more than one ITS. PDS
can be enabled or disabled on a `per-ITS' basis, and so it is possible to
create a multi-ITS configuration where only one or two of the ITSs has PDS
enabled.
2.4.2 PSTN traffic capacity
The PSTN traffic capacity of the supported RBS configurations is detailed
in the table below. Note these figures apply where PDS is not provided; the
PSTN capacity of an ITS with PDS is necessarily lower.
Page 12
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---------------------------------------------- -------------------------------------------------
Base station configuration Reference capacity (E)
---------------------------------------------- -------------------------------------------------
Soft sector = 0% Soft sector = 10%
---------------------------------------------- ----------------------- -------------------------
18-carrier, tri-sector, Type I [ * ] [ * ]
---------------------------------------------- ----------------------- -------------------------
26-carrier, tri-sector, Type III & IV [ * ] [ * ]
---------------------------------------------- ----------------------- -------------------------
27-carrier, tri-sector, Type II [ * ] [ * ]
---------------------------------------------- ----------------------- -------------------------
48-carrier, tri/hex-sector [ * ] [ * ]
---------------------------------------------- ----------------------- -------------------------
The reference capacity is defined as the capacity at 1% probability of
blocking for long ADPCM calls, with the optimum distribution of traffic
loading between ITS sectors.
The soft-sector capacity assumes that 10% of the traffic loading arises
from subscribers in the overlap regions between sectors, and that the
soft-sectored load is distributed evenly between three overlap regions
(3.3% of the total load in each overlap). In 26-carrier RBSs of type III
and IV, and 27-carrier RBSs of type II, there is only one overlap region
where a benefit is derived from soft sectoring; in these cases, the
capacity gain is relatively small. In the tri/hex-sectored ITS,
soft-sectoring is not enabled between hex-sectors.
One ITS with V5.2 interface can support a maximum of 2048 PSTN lines, and a
maximum of 2048 RSSs.
2.4.3 Packet data traffic capacity
2.4.3.1 Number of packet channels at an ITS
Packet channels at an ITS can be configured subject to the following rules:
o Packet data can be supported by ITSs with sector arrangement 6.6.6,
6.6.5, 8, 9, 9.8, 9.9, 6.6.4 (tri/hex)
o All packet channels consist of 6 physical channel pairs
o An ITS that supports PDS has two TPM-PDs
o One TPM-PD may support zero to four packet channels inclusive
o One ITS supports a maximum of 36 physical channels (i.e. six packet
channels)
o The largest packet partition allowed in one sector is three packet
channels
o In bi-sector or tri-sector ITSs, if the ITS provides PDS then each
sector must have at least one packet channel
o In a tri-sector ITS, the sum of the number of packet channels in the
smallest two packet partitions must not exceed four. This ensures that
sectors will not be split across TPM-PDs.
Page 13
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2.4.3.2 Number of simultaneous PPP and MAC connections
The packet data service supports a maximum of:
o 700 packet data subscribers per ITS
o [ * ] simultaneous PPP connections per ITS
o [ * ] simultaneous active MAC connections per packet channel
o [ * ] simultaneous active MAC connections per TPM-PD
o [ * ] simultaneous active MAC connections per ITS
2.4.3.3 Traffic capacity of a packet channel
Each packet channel (consisting of six physical channels) provides a shared
channel with an aggregate capacity for users' packet data traffic of not
less than [ * ] kbps in the downlink direction, and not less than 84 kbps
in the uplink direction. PPP, TCP and IP headers applied at the users'
computers are assumed to form part of the useful throughput.
2.4.3.4 Peak throughput for a single PDS user
The peak throughput for a single user is approximately 96 kbps in the
downlink direction (using the USB interface) and approximately 92 kbps in
the downlink direction (using the RS-232 interface). The peak throughput
for a single user is approximately 42 kbps in the uplink direction.
Note that these are peak figures, and apply when the user has exclusive use
of three physical channels. In normal operation, the packet channel
capacity is shared between a number of users, and mean throughput figures
for individual users will be lower than these peak values. The operator
must ensure that sufficient packet channels are configured to offer
reasonable quality of service to packet data subscribers.
2.4.3.5 Reduction in PSTN capacity
The remaining PSTN traffic capacity at an RBS with packet data service is
defined in the following table. These figures assume that 10% of the
offered traffic is from soft-sectored terminals.
-------------------------------------- -------------------------------------------------
Base station configuration Reference capacity (E)
-------------------------------------- -------------------------------------------------
One packet channel in Two packet channels in
each sector each sector
-------------------------------------- ----------------------- -------------------------
26-carrier, tri-sector, Type III & IV 194.0 178.0
-------------------------------------- ----------------------- -------------------------
48-carrier, tri/hex-sector 327.0 279.0
-------------------------------------- ----------------------- -------------------------
Page 14
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2.5 External interfaces
2.5.1 ITS to transmission system
The interface between the ITS and the transmission system is defined by
ITU-T G.703 11/2001, `Physical/electrical characteristics of hierarchical
digital interfaces'. Only the interface at 2048 kbit/s is supported in
Internet FWA.
As an additional requirement, Internet FWA requires that the long-term
frequency accuracy of the E1 signal from the transmission system is better
than 10-(7) (0.1 ppm). Transmission equipment does not normally re-time
digital traffic, and so this frequency accuracy is usually dependent on
correct configuration of the local exchange (for PSTN connections) or the
packet data network.
Internet FWA complies with ITU-T G.823, `The control of jitter and wander
within digital networks which are based on the 2048 kbit/s hierarchy'.
2.5.2 ITS to local exchange
The framing structure of the signal between the ITS and the local exchange
is defined by ITU-T G.704 10/1998, `Synchronous frame structures used at
1544, 6312, 2048, 8448 and 44 736 kbit/s hierarchical levels', and ITU-T
G.706 04/1991, `Frame alignment and cyclic redundancy check (CRC)
procedures relating to basic frame structures defined in Recommendation
G.704'.
The voice coding for circuit-switched traffic complies with ITU-T G.711
11/1988, `Pulse code modulation (PCM) of voice frequencies'.
Signaling between the ITS and the local exchange uses the V5.2 protocol,
defined in the ETSI V5.1 Specification ETS 300 324-1, V 1.2.2,
`V-Interfaces at the digital local exchange (LE) - V5.1-Interface (based on
2048 kbit/s) for the support of access network (AN)', and ETSI V5.2
Specification ETS 300 347-1, V 2.1.2, `V-interfaces at the digital local
exchange (LE) - V5.2 interface (based on 2048 kbit/s) for the support of
access network (AN)'. Only requirements for PSTN services apply to Internet
FWA.
2.5.3 ITS to packet data network
Internet FWA requires that the E1 signal from the packet data network must
comply with the framing structure defined in ITU-T G.704 (see above for a
detailed reference). Time-slot zero contains a frame synchronization
signal, and the remaining 31 time-slots are joined together to provide a
connection with an aggregate capacity of 1984 kbit/s.
Page 15
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.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
The layer-2 tunnel between the ITS and the packet data network uses a
protocol stack consisting of the point-to-point protocol (PPP), Internet
protocol (IP), user datagram protocol (UDP) and the layer-2 tunneling
protocol (L2TP). These protocols are defined as follows:
o PPP: Internet engineering task force (IETF) STD 51, `The point to
point protocol'
o IP: IETF RFC 791, `Internet protocol'
o UDP: IETF RFC 768, `User datagram protocol'
o L2TP: IETF XXX 0000, `Layer two tunnelling protocol (L2TP)'
2.5.4 RDA to PC
The RDA provides a choice of two different serial data standards at the
PC-RDA interface:
o Asynchronous serial interface (commonly known as RS-232) as defined in
ANSI/TIA/EIA-232-F-1997, Interface Between Data Terminal Equipment and
Data Circuit-Terminating Equipment Employing Serial Binary Data
Interchange, and
o Universal Serial Bus (USB), using the `full-speed' option, as defined
in Universal Serial Bus specification, Rev. 1.1 and USB class
definitions for communications devices, Rev. 1.0.
2.5.5 Shortly after the introduction of the New F6 RSS unit the RDA will be
replaced with a dongle that will provide the same functionality as the
existing RDA unit.
2.6. Additional Specifications
2.6.1 In addition to the Product's Specifications set forth in this Annex D, the
Parties agree to include as part of this Annex D the Product's
Specifications that will be set forth in the Compact Discs to be named as:
(i) Internet Fixed Wireless Access, MR 14.0.3 "Customer Documentation
Suite" and (ii) Internet Fixed Wireless Access, Maintenance Release MR
14.0.3 System Line Up that will be delivered with MR14.03 in February 2003.
2.6.2 New RSS Unit
Summary of the RSS changes
The new Proximity RSS Unit shall have the same form, function and fit of both of
the current RSS Equipment jointly (the F2 and F5 based RSS equipment), pursuant
the specifications provided to Axtel by Airspan and Nortel Networks (as the
former manufacturer). The New RSS Unit will be known as the F6. The changes are
summarised as follows:
o Airspan shall supply a single variant of the RSS. In particular, all
RTUs will contain a packet data interface suitable for interconnection
with the existing RDA.
Page 16
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.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
o The 48 volt indoor power supply, known as the RPCU, shall be revised
to remove unused functionality.
o The RTU environmental specification shall be changed so that the low
operating temperature limit will be -20 C rather than -40 C.
o The New RSS will incorporate the original Drop Cable Connector (NTEG
99GR)
Single variant RSS
In accordance with the Amendment Agreement No2, all New RSS Units will be
supplied with a packet data interface, i.e. the RSS will be `packet data ready'.
This will potentially enable Axtel to supply existing subscribers requesting the
packet data service with an RDA or equivalent device without the need for
replacing the XXX.
00 volt indoor power supply
It had been agreed that a revised solution for the indoor power supply will be
supplied. A number of solutions are possible, but relative to the current RPCU,
the following specification changes are included:
o Eliminate the mains buzzer functionality, which is understood to be
disabled by the Axtel installation teams.
o Remove the 2 secondary RJ11 sockets: It is understood that a remote
RJ11 Box is the preferred Axtel method of installation.
o Restrict the mains input voltage to Mexican requirements:
The current RPCU is designed for the global marketplace and operates with
input voltages from 85volts to 270volts ac. The power supply will be
redesigned specifically to suit Mexican requirements (88volts to 132 volts
ac). Output power ratings will remain unchanged.
o The RPCU plastics material will remain essentially unchanged, but will
incorporate additional spacer/wider lugs and the blanking of the fins
to reduce the likelihood of Water and Bug.
Should there be any changes in mechanical form of the power supply, these will
be agreed with Axtel in due course.
Change to RTU lower operating temperature limit
The RTU environmental specification will be changed so that the low operating
temperature limit will be -20 C rather than -40 C. This is believed to be
acceptable for deployments in Mexico.
Single outer sheath drop cable
For the avoidance of doubt there will be no change to the existing
specification, which already states the dual outer sheath drop cable.
F6 support in SR14.2
The F6 RTU will require a new software image and support for this will be
provided in the SR14.2 system release.
Page 17
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.
Annex D -Product Specifications
Purchase and License Agreement for FWA Equipment-December 2004
--------------------------------------------------------------------------------
Others
A separate label will be added to the RTU to distinguish between and F6 from
other RTU's
Page 18
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
Annex E
FWA Order Procedure
Page 1
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
ORDER PROCEDURE
1 Purchase Order Procedure
Airspan and Axtel agree that a Purchase Order must be issued and delivered in
order to proceed with the supply of any Product or Service for the purposes of
this Agreement.
The Purchase Order will be issued either according to prices established in
Annex F- FWA Prices - of this Agreement or according to a specific quotation
provided by Airspan for those cases in which the prices are not stated in such
Annex. Airspan is not obliged to quote or deliver any service or material not
included in Annex C - Description of Products.
1.1 Request for Quotation
Applicable for Products and Services not included in Annex C - Description of
Products. Axtel will request the quotation in writing in a mutually agreed
format and containing the following minimum information:
a) Supplier Part or Service Number if available
b) Manufacturer Part Number if different to supplier
c) Part or Service Description
d) Quantity
e) Unit of Measure
f) Requested Deliver Time or Date
g) Delivery Location when applicable
h) Part Number (Serial Profile applicable)
1.2 Delivery of quotation by Supplier
Airspan will provide the quotation in accordance with the terms set forth below.
The quotation will be submitted to Axtel's Purchasing Department and
Strategic Negotiations Department in writing within a reasonable period of time,
depending on the complexity of the quote referred, duly signed by Supplier Sales
Representative and containing the following information:
a) Supplier Quotation Number
b) Supplier Part or Service Number
c) Manufacturer Part Number if different to Supplier's
d) Part or Service Description
e) Quantities
f) Unit of Measure
Page 2
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
g) Part Number (Serial Profile applicable)
h) Unit Price as defined in Annex F of the Agreement (Price of Unit of a part
number may be a part of a package or the price when Axtel want to buy
separate)
i) Extended Price
j) Warranty Terms and Conditions if applicable
k) Payment Terms
l) Expiration Date
m) Delivery Time per Item
n) Delivery Site or Delivery Location when applicable
o) Agreement Name
1.3 Submission of Purchase Orders - General
Axtel will submit the Purchase Order in accordance with the terms set forth
below
Purchase Orders shall be submitted in a mutually agreed format or media to the
Airspan Commercial Representative, duly signed by an authorized Axtel
representative and containing the following minimum information:
a) Purchase Order Number
b) Purchase Order Date
c) Supplier Quotation Number if applicable
d) Requested Delivery Date per each item
e) Axtel Part Number
f) Supplier Part or Service Number as per Annex C or quotation
g) Manufacturer Part Number if different to Supplier when applicable
h) Part or Service Description
i) Quantities per each item
j) Unit of Measure
k) Unit Price as defined in Annex F of the Agreement
l) Extended Price
m) Billing Instructions
n) Payment Terms as per signed Agreement
o) Shipping Instructions and Delivery Location
p) Agreement Name
q) Wording expressing "Purchase Order 100% binding and non-cancelable"
r) Wording referencing Terms and Conditions to Agreement signed
s) Special wording when applicable
Airspan shall acknowledge receipt in writing of the Purchase Order within five
(5) business days after received.
Airspan shall accept such Purchase Order in accordance with the terms set forth
in Section 2 of the Agreement.
Page 3
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
1.4 Address and Times for Submission of Purchase Orders
Purchase Orders shall be submitted to Airspan Commercial Representative at the
following address:
Xxx Xxxxxx
Airspan Networks Inc
000 Xxxxxx Xxxx,
Xxxxx 000
Xxxx Xxxxx
Xx, 00000
In the event of a change of the address, Airspan will advise Axtel thereof in
writing.
2 FWA Product Delivery Times
Product Delivery times are indicated in Annex J .
2.1 Product Delivery
Within three business days after Final Ship Date:
a) Axtel's freight representative shall collect the Products at the Airspan
factory or designated warehouse, as applicable and shall sign the
corresponding Freight Xxxx which will constitute the sole Proof of Delivery
(the "Product Delivery").
b) If, for whatever reason, the customer's freight representative does not
collect the Products within the aforementioned period of three business
days, Delivery of the products shall be deemed 100% complete (the "Product
Delivery"). In such case, Proof of Delivery shall be the unsigned Freight
Xxxx.
3 Intentionally left in blank
4 Invoicing
4.1 Product Invoicing
Airspan will submit the invoice in accordance with the terms set forth in
Section 5 of the Agreement.
Page 4
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
Within the next five (5) business days after the delivery by Axtel to Airspan of
a Purchase Order which is in compliance with Section 2 of this Contract, Airspan
shall deliver to Axtel an invoice for one hundred percent (100%) of the purchase
price of such Order.
Airspan' original invoices will be delivered to Axtel's Accounts Payable
department with a copy to the Axtel Purchasing representative. Axtel will
immediately acknowledge receipt of invoices by stamping a copy as "received" and
returning it to Airspan.
4.2 Services Invoicing
Airspan shall invoice Axtel for Services in accordance with section 5 of the
Agreement.
4.3 Invoicing General
All invoices shall be issued containing the following minimum information and
requirements:
a) Official name and address of Axtel as follows:
Axtel S.A. de C.V.
Blvd. Xxxx Xxxxx Km. 3.33 L-1
Col. Unidad San Xxxxx San Xxxxx
Xxxxx Xxxxxx, X.X.
Mexico 66215
RFC: XXX-940727-FP8
b) Purchase Order Number (s)
c) Invoice Number
d) Invoice date
e) Supplier Quotation Number if applicable
f) Supplier Part or Service Number if applicable
g) Axtel part Number.
h) Manufacturer Part Number if different to Supplier when applicable
i) Part or Service Description
j) Quantities per each item
k) Unit of Measure
l) Unit Price for Equipment or Services.
m) Extended Price for Equipment or Services.
n) Payment Terms
o) Delivery Location for Services when applicable
p) Agreement Name
q) Supplier Name and Address
r) Service Receipt Acceptance Number or Good Receipt Acceptance Number as
applicable.
5 Equipment Shipping Instructions, Shipping Documents and Goods Receipt.
All shipments shall be consigned according to the Purchase Order or Change
Order.
Page 5
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
Airspan shall submit a copy of the following documentation via fax to Axtel's
Purchasing Department immediately after Delivery.
o Proof of Delivery
o Packing List.
o Packing List including the material part number that Axtel and Aisrpan
manage with a serial number.
o Certificate of Origin (NAFTA Certificate, if it applies)
o Copy of Original Invoice
For purposes of the Agreement, the Delivery Date of the products shall be deemed
the date on which Airspan delivers via fax to Axtel the documents mentioned
above.
A copy of the following documentation should be attached to the shipment:
o Copy of Original Invoice
o Packing List with product serial number when applicable
o Certificate of Origin (NAFTA Certificate, if it applies)
During the following ten (10) days after Delivery Date, Axtel shall issue a
Goods Receipt document that shall contain at least the following information:
o Document Date
o Purchase Order Number (s)
o Invoice Number(s)
o Delivery Date
o Acceptance Note and Goods Receipt Number
o Refusal Note describing the reasons in writing (if applicable) in
accordance with the terms of the Agreement
If after ten (10) days from Delivery Date, Axtel has not delivered to Airspan
such Goods Receipt document, it will be deemed that Axtel has accepted the
shipment and it will be deemed that there are no Non-Compliant products in such
shipment.
Partial deliveries shall only be allowed such as stated in Annex J and section
5.4 of the Agreement.
6 Services Acceptance
In the event of Services, during the following ten (10) Business Days after
completion of the Services by Supplier, Axtel shall issue a Service Acceptance
Notification to Supplier that should contain at least the following information:
o Document Date
o Purchase Order Number
o Date of Service Completion
Page 6
Annex E
Purchase and License Agreement for FWA Equipment (Dec 2004)
--------------------------------------------------------------------------------
o Acceptance Note and Service Receipt Acceptance Number
o Refusal Note describing the reasons in writing (if applicable)
If after ten (10) Business Days, Axtel has not delivered to Airspan such Service
Acceptance Notification, it will be deemed that Axtel has accepted the provided
Services and Airspan will invoice Axtel.
Page 7
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
Annex F
FWA Prices
Page 1
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
Annex F
FWA Prices
1.0 Document Scope.
This document details the definition and pricing of the FWA equipment to be
supplied by Airspan to AXtel as per the "FWA Supply Agreement". All prices are
in US dollars. CIP for RSS & RIS are quoted as @ Airspan American consolidation
warehouse for Mexico (currently Texas, USA). Ex-works terms for RBS & FET are
quoted @ Airspan RBS manufacturing site (currently Dumfermline Scotland) and
Ex-works terms for REM are quoted @ Airspan REM integration site (currently
Dumfermline Scotland).
2.0 Customer Premise Equipment Kits.
2.1 Customer Premise Equipment Kits (CPE).
An F5 RSS Kit is defined as follows for Orders for Delivery from April 1st 2005
(RDA Kit excluded):
-------------------- ------------------------------------------------ ------- -------------------
PEC Description Qty. Ext. Price CIP USD
-------------------- ------------------------------------------------ ------- -------------------
NTEG18DA F5 XXX 0
-------------------- ------------------------------------------------ ------- -------------------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ ------- -------------------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ ------- -------------------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ ------- -------------------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ ------- -------------------
$[ * ]
----------------------------------------------------------------------------- -------------------
Prior to Orders for Delivery from April 1st 2005, an F5 Kit includes the RDA at
a price of $[ * ]
An F5v2 Analog RSS Kit is defined as follows, with pricing effective for Orders
for Delivery from 1st April 2005:
-------------------- ------------------------------------------------ ------- -------------------
PEC Description Qty. Ext. Price CIP USD
-------------------- ------------------------------------------------ ------- -------------------
NTEG18DB F5v2 Analog XXX 0
-------------------- ------------------------------------------------ ------- -------------------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ ------- -------------------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ ------- -------------------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ ------- -------------------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ ------- -------------------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
-------------------- ------------------------------------------------ ------- -------------------
$[ * ]
----------------------------------------------------------------------------- -------------------
Page 2
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
Prior to Orders for Delivery from April 1st 2005 F5v2 Analog RSS Kit price is $
[ * ]
An F6 Single Model RSS Kit is defined as follows pricing effective Orders for
Delivery from 1st April 2005
-------------------- ------------------------------------------------ ------- --------------------------
PEC Description Qty. Ext. Price CIP USD
-------------------- ------------------------------------------------ ------- --------------------------
NTEG19DE F6 XXX 0
-------------------- ------------------------------------------------ ------- --------------------------
NTEG12FA RPCU 1
-------------------- ------------------------------------------------ ------- --------------------------
A0636762 RPCU Battery 1
-------------------- ------------------------------------------------ ------- --------------------------
NTEG12CL RPCU Power Cord 1
-------------------- ------------------------------------------------ ------- --------------------------
NTEG12FB RPCU Safety Booklet 1
-------------------- ------------------------------------------------ ------- --------------------------
NTEG99JE Drop Cable (500m) 0.04
-------------------- ------------------------------------------------ ------- --------------------------
NTEG99GR Drop Cable Connector (50) 0.02
-------------------- ------------------------------------------------ ------- --------------------------
NTEG99CZ Drop Cable Connector Pins (500) 0.02
----------------------------------------------------------------------------- --------------------------
$[ * ]
----------------------------------------------------------------------------- --------------------------
An RDA Kit for Orders for Delivery from 1st April 2005 is defined as follows:
-------------------- ------------------------------------------------ ------- --------------------------
PEC Description Qty. Ext. Price CIP USD
-------------------- ------------------------------------------------ ------- --------------------------
NTEG18FA RDA or Dongle 1
-------------------- ------------------------------------------------ ------- --------------------------
-------------------- ------------------------------------------------ ------- --------------------------
-------------------- ------------------------------------------------ ------- --------------------------
Right to use fee of PD functionality included
----------------------------------------------------------------------------- --------------------------
$[ * ]
----------------------------------------------------------------------------- --------------------------
2.2 Installation Brackets for any type of RSS.
Compact Mounting Bracket
-------------------- ------------------------------------------------ ------- --------------------------
PEC Description Qty. Ext. Price CIP USD
-------------------- ------------------------------------------------ ------- --------------------------
NTEG19AJ Compact Mounting Bracket (10) 1
-------------------- ------------------------------------------------ -------
NTEG99DC Mounting Coach Screw (200) 0.015
-------------------- ------------------------------------------------ -------
NTEG99DD Washer M8 (200) 0.015
-------------------- ------------------------------------------------ -------
NTEG99DE Frame Fixing(200) 0.015
-------------------- ------------------------------------------------ ------- --------------------------
$[ * ]
-------------------- ------------------------------------------------ ------- --------------------------
Page 3
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
3.0 Radio Basestation Kits
Discrete Radio Basestation Configurations.
The following configurations and the associated pricing for Orders for Delivery
after December 31st 2004 are representative of a typical installation of RBS
Kits. Specific installations may require variations on these definitions for
which the vendor will provide revised pricing quotations at that time.
------------------- ------------------------------------------------------- --------------- --------------
PEC Description 18b RBS 27b RBS
------------------- ------------------------------------------------------- --------------- --------------
NTED4575 Transceiver Processor Module 5 7
------------------- ------------------------------------------------------- --------------- --------------
NTEG72AD Transceiver Baseband Module Combining Diversity 5 7
------------------- ------------------------------------------------------- --------------- --------------
NTEG77EC Transceiver Masthead Unit Kit 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG97PC Antenna to TMU 4m Cable 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG94BD 1M Pre-Fit Cabinet 1 2
------------------- ------------------------------------------------------- --------------- --------------
NTEG63AA Transceiver Timer Module 0 0
------------------- ------------------------------------------------------- --------------- --------------
NTEG73AA Network Management Module 0 0
------------------- ------------------------------------------------------- --------------- --------------
NTEG99CJ TMU to Cabinet IF 1/2" cable (500m) 0.6 0.9
------------------- ------------------------------------------------------- --------------- --------------
NTEG91BA 1/2" IF Cable Connector Kit 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG99CE TMU to Cabinet Power cable (500m) 0.6 0.9
------------------- ------------------------------------------------------- --------------- --------------
NTEG93AA Power Cable Connector Kit 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG99CA TMU to Cabinet Data Cable (500m) 0.6 0.9
------------------- ------------------------------------------------------- --------------- --------------
NTEG92AA Data Cable Connector Kit 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG97NE 60 Degree Vertical Polarization Antenna 0 0
------------------- ------------------------------------------------------- --------------- --------------
NTEG97ME 120 Degree Vertical Polarization Antenna 6 9
------------------- ------------------------------------------------------- --------------- --------------
NTEG94PA 120 0hms primary E1 Cable 1 2
--------------------------------------------------------------------------- --------------- --------------
Ex-Works Price USD $[ * ] $[ * ]
--------------------------------------------------------------------------- --------------- --------------
For clarity, XXXX00XX (0X Pre-Fit Cabinet) and NTEG77EC (Transceiver Masthead
Unit Kit) are defined as follows:
------------------------------------------------------------------------------------------------------
XXXX00XX 0X Pre-Fit Cabinet
------------------- ------------------------------------------------------------------------- --------
PEC Description Qty.
------------------- ------------------------------------------------------------------------- --------
NTED4575 TRANSCEIVER PROCESSOR MODULE 1
------------------- ------------------------------------------------------------------------- --------
NTEG63AA TRANSCEIVER TIMER MODULE 2
------------------- ------------------------------------------------------------------------- --------
NTEG72AD TRANSCEIVER BASEBAND MODULE COMBINING DIVERSITY 1
------------------- ------------------------------------------------------------------------- --------
NTEG73AA NETWORK MANAGEMENT MODULE 1
------------------- ------------------------------------------------------------------------- --------
NTEG7762 CABINET CABLE SET TYPE 2 1
------------------- ------------------------------------------------------------------------- --------
NTEG74BA OVER-VOLTAGE PROTECTION MODULE 3
------------------- ------------------------------------------------------------------------- --------
NTEG76BA ITS FAN TRAY ASSEMBLY 1
------------------- ------------------------------------------------------------------------- --------
NTEG76CC SECONDARY DC BREAKER RACK FILTERED 1
------------------- ------------------------------------------------------------------------- --------
NTEG76FB I.T.S Basestation DIVERSITY SUB RACK 1
------------------- ------------------------------------------------------------------------- --------
NTEG76GA I.T.S U.K MAINTENANCE PORT ASSEMBLY 1
------------------- ------------------------------------------------------------------------- --------
NTEG94AN 1.0M CABINET FLOOR MOUNTING PLINTH 1
------------------- ------------------------------------------------------------------------- --------
NTEG94FA ALARM CONNECTOR BLOCK 1
------------------- ------------------------------------------------------------------------- --------
NTEG94QA 1.0M INTERNAL I.T.S. CABINET 1
------------------- ------------------------------------------------------------------------- --------
Page 4
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
NTEG77EC Transceiver Masthead Unit Kit
------------------------------------------------------------------------------------------------------
PEC Description Qty.
------------------- ----------------------------------------------------------------------- ----------
NTEG77CA T.M.U./T.A.S. GROUND BOND KIT 1
------------------- ----------------------------------------------------------------------- ----------
NTEG77DA SUN SHIELD ASSEMBLY 1
------------------- ----------------------------------------------------------------------- ----------
NTEG77GB T.M.U. ASSY BF-BAND (100MHz) 1
------------------- ----------------------------------------------------------------------- ----------
P0821020 U BOLT 61 C R S 2
------------------- ----------------------------------------------------------------------- ----------
P0821021 U BOLT 126 C R S 2
------------------- ----------------------------------------------------------------------- ----------
P0834843 T.M.U. MOUNTING BRACKET V3 1
------------------- ----------------------------------------------------------------------- ----------
3.1 PDS Upgrade Configurations.
The following configurations and the associated pricing are representative
------------------- -------------------------------------------------- --------------------
PEC Description PDS Upgrade
------------------- -------------------------------------------------- --------------------
NTEG71HA Transceiver processor Module - Packet Data 2
------------------- -------------------------------------------------- --------------------
N/A Packet Data Software Activation Fee 1
---------------------------------------------------------------------- --------------------
Ex-Works Price USD $[ * ]
---------------------------------------------------------------------- --------------------
4.0 FWA Software
------------ -------------------------------------------------------- ------------ ---------------------
PEC Description Qty. Ex-Works Price USD
------------ -------------------------------------------------------- ------------ ---------------------
N/A RMT Data Software Activation Fee 1 To be Quoted
------------ -------------------------------------------------------- ------------ ---------------------
5.0 FWA OA&M Equipment.
5.1 Field Engineering Terminal (FET).
Choose one of the following.
------------------ ------------------------------------------------------ ---------- -------------------
PEC Description Qty. Ex-Works Price
USD
------------------ ------------------------------------------------------ ---------- -------------------
NTEG30AN FET System Complete (LINUX)on Panasonic CF27 1 $[ * ]
------------------ ------------------------------------------------------ ---------- -------------------
NTEG30AF LINUX FET Software Application Kit for Panasonic CF27 1 $[ * ]
------------------ ------------------------------------------------------ ---------- -------------------
5.2 Residential Installation System (RIS).
Survey & Maintenance Kit
-------------------- ------------------------------------------------------ -----------
PEC Description Qty.
-------------------- ------------------------------------------------------ -----------
NTEG24BF 100 MHz Generic Survey Kit 1
-------------------- ------------------------------------------------------ -----------
Page 5
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
-------------------- ------------------------------------------------------ -----------
NTEG10DCBV RSS Installation Sub-Set Documentation 1
-------------------- ------------------------------------------------------ -----------
P0872025 Large Belt 1
-------------------- ------------------------------------------------------ -----------
NTEG24BE RTU SAK/Handle Pole Kit (5.5m extension kit) 1
-------------------- ------------------------------------------------------ -----------
NTEG22EB RTU SAK/Handle Assembly 1
-------------------- ------------------------------------------------------ -----------
A0734347 GPS 1
-------------------- ------------------------------------------------------ -----------
A0658055 Linesman Phone U.S. 1
-------------------- ------------------------------------------------------ -----------
XXXX00XX 000XXx Generic Maintenance Kit 1
-------------------- ------------------------------------------------------ -----------
NTEG21ND PSA Mains Adapter U.S. 1
-------------------- ------------------------------------------------------ -----------
A0745625 RMT Mains Adapter U.S. 1
-------------------- ------------------------------------------------------ -----------
A0657248 Modem 1
-------------------- ------------------------------------------------------ -----------
A0655833 Multimeter 1
-------------------- ------------------------------------------------------ -----------
NTEG21PB Vehicle charging Cable 1
-------------------- ------------------------------------------------------ -----------
A0743766 RMT Docking Holster 1
-------------------- ------------------------------------------------------ -----------
CIP $[ * ]
Price USD
-------------------- ------------------------------------------------------ -----------
5.3 Radio Element Manager (REM).
The following configuration is based on the original Model 3 REM but includes
additional functionality upgrades that were introduced during the previous
contract.
-------------------- ----------------------------------------------------------------- -----------------
Description Qty.
-------------------- ----------------------------------------------------------------- -----------------
NTEG43AC HP Unix Server 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG41GD XXXX Functionality 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG41GE Dual Processor Functionality 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG43AA HP Client Workstation 1
-------------------- ----------------------------------------------------------------- -----------------
NTEJ40BN Radio Element Manager Software Platform 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG42BC Xxxxxxx Xxx 00 Xxxx Xxxxxxx,Xxxxxxx,Xxxxxxxx, Dual Psu 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG42FB HyperARC 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG42GM Quad Modem Card With S/Xxxx Type 1 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG43AD Unix Server annual support 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG43AB Client Workstation annual support 1
-------------------- ----------------------------------------------------------------- -----------------
NTEJ40GC Remedy ARS Support 1
-------------------- ----------------------------------------------------------------- -----------------
NTEJ40JC Oracle RDBMS Support 1
-------------------- ----------------------------------------------------------------- -----------------
A0743702 Openview SW Support 1
-------------------- ----------------------------------------------------------------- -----------------
NTEG42KA Network Hub Annual SW Maintenance 1
-------------------- ----------------------------------------------------------------- -----------------
A0743715 SW support XXXX 1
-------------------- ----------------------------------------------------------------- -----------------
Ex-Works Price USD $[ * ]
-------------------- ----------------------------------------------------------------- -----------------
6.0 FWA Equipment Spares.
-------------------- ------------------------------------------------------ ---------- ---------------
PEC Description Qty. Per Ex-Works
Price USD
-------------------- ------------------------------------------------------ ---------- ---------------
NTED4575 Transceiver Processor Module 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG72AD Transceiver Baseband Module Combining Diversity 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG77EC Transceiver Masthead Unit Kit 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
Page 6
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
-------------------- ------------------------------------------------------ -----------
NTEG97PC Antenna to TMU 4m Cable 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG76BA I.T.S. Fan Tray Assembly 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG76CC Secondary DC Breaker Rack Filtered 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG76FB I.T.S Basestation Diversity Sub Rack 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG76GA I.T.S U.K. Maintenance Port Assembly 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG94QA 1.0M Internal ITS Cabinet 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG74BA Over Voltage Protection Module 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG63AA Transceiver Timer Module 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG73AA Network Management Module 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG99CJ TMU to Cabinet IF 1/2" Cable 500m $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG91BA 1/2" IF Cable Connector Kit 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG99CE TMU to Cabinet Power Cable 500m $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG93AA Power Cable Connector Kit 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG99CA TMU to Cabinet Data Cable 500m $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG92AA Data Cable Connector Kit 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97ME 120 Degree Vertical Polarization Antenna 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97MF 120 Degree Horizontal Polarization Antenna 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NE 60 Degree Vertical Polarization Antenna 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NF 60 Degree Horizontal Polarization Antenna 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NG 40 Degree Vertical Polarization Antenna (For orders 1 $[ * ]
of less than 120 units)
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NH 40 Degree Horizontal Polarization Antenna (For 1 $[ * ]
orders of less than 120 units)
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NG 40 Degree Vertical Polarization Antenna (For orders 1 $[ * ]
of more than 120 units)
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG97NH 40 Degree Horizontal Polarization Antenna (For 1 $[ * ]
orders of more than 120 units)
-------------------- ------------------------------------------------------ ---------- ---------------
NTEG71HA Transceiver Processor Module - Packet Data 1 $[ * ]
-------------------- ------------------------------------------------------ ---------- ---------------
------------------ -------------------------------------------------------- ---------- -----------------
PEC Description Qty. Per Ext. Price CIP
USD
------------------ -------------------------------------------------------- ---------- -----------------
NTEG18DA F5 XXX 0 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG19DE F6 XXX 0 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG18FA RDA Kit or Dongle 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG12FA RPCU 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
A0636762 RPCU Battery 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG12CL RPCU Power Cord 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG12FB RPCU Safety Booklet 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG99JE Dual Jacket Drop Cable 500m $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
------------------ -------------------------------------------------------- ---------- -----------------
PEC Description Qty. Per Ext. Price CIP
USD
------------------ -------------------------------------------------------- ---------- -----------------
NTEG99GY Dual Jacket Drop Cable Connector 50 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
NTEG99CZ Drop Cable Connector Pins 500 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
XXXX00XX X0 XXX or Substitute 1 $[ * ]
------------------ -------------------------------------------------------- ---------- -----------------
Page 7
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.
Annex F - Prices
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
For spares Orders greater than $100,000.00 a discount of [ ]% will be offered on
all RBS equipment.
Page 0
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
ANNEX G
WARRANTY TERMS AND SERVICES
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
PURCHASE AND LICENSE AGREEMENT FOR FWA EQUIPMENT
ANNEX G
This is the Annex "G" of the Purchase and License Agreement for FWA Equipment,
dated as of December 28, 2004 (the "Agreement"), entered into by and among
Airspan Communications Limited ("Airspan"), and Axtel, S.A. de C.V. ("Axtel").
PART ONE - WARRANTY TERMS
THE WARRANTIES EXPRESSLY SET FORTH IN THIS ANNEX "G" CONSTITUTE THE ONLY
WARRANTIES MADE BY AIRSPAN WITH RESPECT TO THE PRODUCTS. SUCH WARRANTIES ARE IN
LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
1.1 Airspan warrants that the Products will be free from defects in
materials and workmanship and will function substantially in accordance
with the applicable specifications during the warranty period of twelve
(12) months from the respective Delivery Date ("Warranty Period").
1.2 Airspan undertakes to promptly remedy pursuant the terms set forth in
this Annex "G" all defects discovered in the Products within the
Warranty Period and properly notified to Airspan in accordance with this
Section. Repaired or replaced Products shall have a new warranty period
of 180 days from the date of delivery to Axtel or up to the end of the
original Warranty Period, whichever is longer.
1.3 Subject to the said Warranty Period(s), Airspan warrants that the
Products, and any part thereof, will comply and function in accordance
with the specifications set forth in Annex "D" of the Agreement and all
of the requirements of the Agreement.
1.4 If an item of Product is or becomes defective during its Warranty
Period, Airspan will at its option either repair or replace the item. In
the event Airspan determines that repair or replacement as set forth in
this Annex G cannot be made using commercially reasonable efforts (which
determination shall be made within thirty (30) days after Airspan
receives written notice from Axtel) Airspan will give Axtel a credit
equal to the purchase price paid by Axtel for the Product, provided that
Axtel has returned such Product to Airspan.
1.4.1 Axtel must return each defective item to Airspan, at an address to be
advised by Airspan, no later than sixty (60) days after the end of its
Warranty Period. When Axtel is required to return a defective Product to
Airspan for warranty service, Axtel agrees to ship it prepaid and
suitably packaged to the location designated by Airspan. In making such
return, Axtel will comply with the procedures specified in Part Two of
this Annex G. Airspan will repair or replace such defective item at no
additional charge to Axtel and return, at its own cost, the repaired or
replacement item to Axtel's address specified in the PO, together with
the appropriate documentation required for such shipment and return
shipment thereof. Airspan shall
Page 2
Annex G - Warranty Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
be responsible for loss of, or damage to, Product while it is (y) in
Airspan's possession, or (z) in transit back to Axtel. Title to each
replacement item will pass to Axtel on payment in full for the
replacement item or, if no payment is due, on receipt by Axtel.
1.5 No warranty is provided for: (i) supply items normally consumed during
Product operation; (ii) failures caused by non-Airspan products; (iii)
failures caused by a Product's inability to operate in conjunction with
other Axtel hardware or software different from the Third Party Vendor
Items provided by Airspan under this Agreement; or (iv) performance
failures resulting from improper installation and maintenance or Axtel's
use of unauthorized parts or components.
The warranty will be voided by misuse, accident, damage, alteration or
modification, failure to maintain proper physical or operating
environment, use of unauthorized parts or components or improper Axtel
maintenance. Software is not warranted to operate uninterrupted or error
free. The performance by Axtel, directly or indirectly, of the
installation, engineering, commissioning, network design, support and
maintenance of FWA Products by skilled personnel in accordance with the
Airspan Procedures shall not invalidate the warranty provided hereunder.
1.6 Airspan covenants that it has good title to all hardware (including
Third Party Hardware) to be delivered hereunder and that Airspan shall
convey to Axtel good title to the hardware free from any and all liens,
encumbrances or third party rights whatsoever in accordance with the
Agreement. In addition, Airspan covenants that it is entitled to xxxxx
Xxxxx the right to use the Software free from any and all liens or
encumbrances whatsoever in accordance with the Agreement.
1.7 The warranty and/or the extended warranty shall not be affected if Axtel
connects to the Products, software or hardware from other suppliers if
such suppliers' hardware or software complies with international
telecommunications standards and Axtel is current with Products software
loads, provided that such current Product software load is required for
the correct interoperability between such hardware and software.
1.8 Airspan shall provide the hardware repair and shipping instructions for
all the parts of the Products to be supplied to Axtel by Airspan under
and in accordance with this Agreement. The Technical Assistance (7x24)
and Repair & Return Services shall be provided during the Warranty
Period as detailed in Part Two of this Annex "G" and is included in the
prices of the Products set forth in Annex "F".
Page 3
Annex G - Warranty Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
PURCHASE AND LICENSE AGREEMENT FOR FWA EQUIPMENT
ANNEX G
PART TWO - WARRANTY SERVICES
1.0 SERVICES SUMMARY
For Products covered by the warranty given under Part 1 of this Annex G during
the Warranty Period, Airspan will:
o Provide Remote Technical Assistance (as defined below) to assist Axtel
in the diagnosis of hardware failures of any Product supplied by
Airspan under this Agreement.
o Repair or replace a defective Field Replaceable Unit ("FRU"). If an
FRU becomes defective during the Warranty Period, and provided it has
been returned to Airspan in accordance with section 1.4 of Part One
above, Airspan will repair and deliver the FRU to Axtel within 60 days
following receipt by Airspan of the defective FRU.
Note: Axtel will maintain its own stock of spares at levels
sufficient to cover requirements within timeframes consistent
with Axtel's quality of service objectives.
Airspan will register and manage requests for Remote Technical Assistance
and for FRU replacement during normal business days and hours in the
location where the service is being performed.
The following specific warranty services ("Services") will be provided by
Airspan under Part 2:
1.1 Technical Assistance Service during Warranty Period
1.1.1 During the Warranty Period, Airspan will provide Remote Technical
Assistance (as defined below) to assist Axtel in the diagnosis of hardware
failures. Specifically, Airspan will provide the following deliverables in
this regard:
o Airspan technicians and engineers will provide support primarily by
remote means ("Remote Technical Assistance"). In a collaborative
effort with Axtel's technical staff, these personnel will attempt to
diagnose and resolve issues related to the hardware supplied by
Airspan as explained in this service description.
o Where telephone support, remote diagnosis, and all other means of
restoring product operation have failed, Airspan will, upon Axtel's
request, and if Airspan determines that on-site support is necessary
and
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
appropriate, at Airspan's expense, dispatch a trained and qualified
technical expert to Axtel's premises to facilitate further diagnosis.
o Should Airspan determination that on-site support is not necessary,
Axtel will nevertheless have the right to require on site support from
Airspan, provided that such on site support required by Axtel shall be
at Axtel's cost unless it is agreed in writing that it was necessary
for such support to be provided on site.
1.1.2 Axtel Responsibilities for receipt of Remote Technical Assistance
To receive Remote Technical Assistance, Axtel will be required to:
o Confirm that the products have been installed and commissioned and are
used and maintained by knowledgeable and skilled people in accordance
with Airspan Procedures.
o Replace hardware components during diagnosis or as remedial actions.
o Generate performance/availability reports and associated trend
analysis.
o Gather data in a timely manner in support of Airspan' diagnostic
process when reasonably within the technical competency of Axtel. o
Identify issues requiring hardware replacement
o Perform software upgrades and/or patch applications
o Provide connectivity in a timely manner to the Product(s) for Airspan
to establish a data link for use by Airspan technical support group in
order to conduct remote diagnosis and maintenance. Axtel and Airspan
technical personnel will agree on the appropriate type of data link
based on network equipment and configuration as well as the
appropriate security measures to prevent unauthorized access. Axtel
will be solely responsible for security of the network. Airspan will
not connect to Axtel's network without prior authorization and such
connection will be solely to provide technical support.
o Excuse Airspan from fault resolution for a period equal to such
failure or delay, should Axtel fail or cause delay in providing
connectivity
o Designate and make available competent personnel to aid in problem
diagnosis and provide electronic access to the affected Product(s) to
aid in problem investigation and resolution for all incidents. Axtel
personnel shall be available to work with Airspan's technical expert
during all the process for Remote Technical Assistance.
o Implement its internal escalation process in order to inform all the
necessary contacts at Airspan.
o Maintain such support agreement(s) with third-party supplier(s) for
such product(s) other than Products, as Axtel sees fit.
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
o Exhaust internal troubleshooting processes with first-level its
Operations, Administration, and Maintenance ("OA&M") functions.
First-level support includes, but is not limited to:
- Performing day-to-day maintenance and network operations
- Monitoring network and system alarms
- Performing diagnosis in accordance with instructions provided by
Airspan and carrying out initial remedial actions, including
remote diagnosis
- Operating and controlling Axtel's internal help desk for logging
and tracking fault inquiries, prioritizing events, and
escalating, as required, to the Airspan technical support group
- Providing local time templates and historical actions performed
on each event as reference information to the Airspan technical
support group .
1.1.3 Technical Assistance Services Assumptions
For Remote Technical Assistance the following assumptions will apply:
o 2nd & 3rd Level Technical Support Services will be provided by Airspan
at its cost and expense during the Warranty Period to the Hardware
elements covered by the warranty.
o In the event that Axtel fails to comply with its responsibilities
described in section 1.1.2 of Part Two, Airspan will advise Axtel in
writing of its non-compliance. Airspan and Axtel may then agree upon
services to be provided at the then-current time-and-materials basis
published by Airspan plus any travel and living expenses incurred
o Services provided by Airspan under this Annex G are warranted in
accordance with Section 6.3 of this Agreement.
o Airspan, or a skilled, qualified third-party authorized by Airspan,
will furnish these Services.
1.1.4 Exclusions
The following exclusions will govern the provision of Remote Technical
Assistance:
o Software provided by Airspan under this Agreement has no warranty.
o Providing advice on how to detect and resolve network-related problems
o Diagnosing issues related to Airspan Products interfacing with
non-Airspan products
o Analyzing trace / log / dump / Operational Measurement ("OM")
information o Emergency Recovery
Page 6
Annex G - Warranty Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
o Airspan is not responsible for supporting non-Airspan supplied
third-party product(s). Axtel will be responsible for maintaining
support agreements with the OEM/third-party supplier for such
product(s).
o No warranty is provided for Product failures caused by events
specified in Part One - sections 15 and 1.6.
o Airspan support obligations are expressly conditional upon the
Products not being (i) subject to unusual mechanical stress or unusual
electrical or environmental conditions; (ii) subject to misuse,
accident or disaster including without limitation, fire, flood, water,
wind, lightning or other acts of God; or (iii) altered or modified
unless performed or authorized by Airspan
o Products which have not been installed and commissioned by
appropriately skilled and trained personnel using Airspan Procedures
are excluded from the warranty.
o Remote Technical Assistance will not be provided during installation
and/or commissioning processes.
1.2 Return and Replace Service
Airspan Networks will register and manage requests for Return and Replace
service during Airspan' normal business days and hours in the location
where the service is being performed.
Upon receiving Axtel's request, Airspan will allocate a part request number
(also known as a Return Material Authorization number) to each FRU to be
replaced and will notify Axtel in writing of the relevant part request
number.
Following allocation of the part request number(s) Airspan will repair or
replace the unit and will deliver the repaired unit or an equivalent to
Axtel within 60 days of receipt by Airspan at the place where the repair or
replacement is carried out (the "R&R Time Limit").
On-site repair and on-site replacement services by Airspan are not included
with the Return and Replace Service.
1.2.1 Like for Like Replacement
Airspan, at its own cost and expense, shall provide within 60 days after
the Effective Date of this Agreement and maintain in Axtel warehouses to be
notified to Airspan in writing the following amount of Products (the "Stock
Products"):
-------- ----------------- ------------------------------------------------------ --------------
Ref Part Number Description Quantities
-------- ----------------- ------------------------------------------------------ --------------
1 NTEG72AD TBM 16
-------- ----------------- ------------------------------------------------------ --------------
2 NTEG77EC TMU 16
-------- ----------------- ------------------------------------------------------ --------------
3 NTED4575 TPM 8
-------- ----------------- ------------------------------------------------------ --------------
4 NTEG63AA TTM 8
-------- ----------------- ------------------------------------------------------ --------------
Page 0
Xxxxx X - Xxxxxxxx Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
-------- ----------------- ------------------------------------------------------ --------------
5 NTEG73AA NMM 4
-------- ----------------- ------------------------------------------------------ --------------
6 NTEG74BA OVPM 12
-------- ----------------- ------------------------------------------------------ --------------
7 NTEG71HA TPM-PD 12
-------- ----------------- ------------------------------------------------------ --------------
These Stock Products shall be kept by Axtel in its own facilities in Mexico
and Axtel shall manage such Stock Products at its sole discretion to create
a replacement process for damaged parts as a "Like for Like" replacement
process.
The Parties hereby agree that Airspan shall be obligated to increase the
Stock Products by one piece of the respective part number, if Airspan is
more than five (5) days late under section 1.2 of Part Two above, in the
repair and return of such part (this shall be accounted by pieces).
1.2.2 Axtel Responsibilities for Return and Replace Services
Axtel will be required to:
o Pay the expense of shipping a defective FRU to Airspan's warehouse or
logistic center defined for this purposes.
o Use the specifically-assigned part request number(s) provided by
Airspan and include completed Airspan Fault Report Forms when
returning any FRU
o Adhere to Airspan' packing instructions (including anti-static
precautions) when returning the defective unit. The packing
instructions will be included with the return instructions
accompanying the replacement FRU
o Put the replacement FRU into service once it has been returned by
Airspan to Axtel.
1.2.3 Assumptions for Repair Services
The following assumptions will govern the provision of repair Services for
Products covered by the warranty in the Warranty Period:
o Airspan will incur the expense of shipping the repaired unit or the
replacement unit to Axtel using a method and carrier selected by
Airspan. Airspan is responsible for loss of, or damage to, an FRU
while it is in Airspan' possession or in transit to Axtel, as well as
to pay all applicable duties, taxes, and other charges associated with
the importation of the repaired or replacement FRU into the country of
destination.
o Unless required for operational reasons and agreed upon with Airspan,
the replacement FRU will be at the then-current hardware and firmware
release levels as they are made Generally Available (GA) by Airspan.
Upon a specific request of Axtel for repair of a quantity of RTUs with
a specific software release version, the parties will work together to
define a mutually agreeable process to satisfy such specific request,
provided that such a process does not cause Airspan to incur any out
of pocket expenses or material additional cost.
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
o Warranty on FRU repaired by Airspan shall be limited to one hundred
and eighty (180) days from delivery of the repaired FRU or to the end
of the original warranty period, whichever is longer.
o The defective FRU returned to Airspan becomes the property of Airspan
and, subject to Airspan' receipt of the defective FRU, its replacement
becomes Axtel's property.
o Airspan reserves the right to reject the return of any FRU that does
not clearly display the specific part request Return Material
Authorization ("RMA") number or does not include the associated
completed Airspan fault report forms.
o Airspan will from time to time assess Products offered and supported.
The assessment will be based on technology, market development,
product deployment, and support requirements and may identify certain
Products that will be discontinued. Airspan reserves the right to
terminate any service purchased by Axtel for products that have been
discontinued. Subject to the terms and conditions of the FWA PLA,
continued support for any discontinued products beyond the effective
date of discontinuance may be provided in accordance with the terms
and conditions as stated in the FWA PLA.
o The service will be furnished by Airspan or a party authorized by
Airspan.
o As part of the repair service, Airspan will monitor all faulty product
returns for No Fault Found ("NFF") from Axtel. All repair cases
resulting in "no fault found" will not be charged to Axtel. In the
event that such Product presents again in the field within 180 days of
return date the same failures as noticed by Axtel, Airspan shall
repair or replace, within 60 days of receipt of the FRU, such Product
at its cost and expense.
o If, in the judgment of Airspan, the returned FRU has been damaged by
misuse, accident, modification or failure to maintain the proper
physical or operating environment or improper maintenance by Axtel,
then Airspan will return the defective un-repaired FRU to Axtel at
Axtel's expense.
o It is critical that Axtel regularly ship all defective Products to
Airspan, as and when defects are detected, to avoid the accumulation
of defective Products that will impact Airspan's ability to meet the
target turnaround times.
o In the case of Product replaced at Airspan discretion, and which would
be returned with a different Serial Number to Axtel, the proper
documentation shall be provided by Airspan for Axtel's asset controls
to evidence which serial number is replaced.
1.2.4 Exclusions to Repair Services
The following exclusions will govern the delivery of repair Services:
Page 0
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Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
o Airspan support obligations are expressly conditional upon the
products not being (i) subject to unusual mechanical stress or unusual
electrical or environmental conditions; (ii) subject to misuse,
accident or disaster including without limitation, fire, flood, water,
wind, lightning or other acts of God; or (iii) altered or modified
unless performed or authorized by Airspan.
o Repair Services are not offered on Airspan holidays observed in the
region where the service is being performed.
o Additionally, repair Services do not include Emergency Repair Support
(also known as Emergency Part Dispatch).
o Root-cause analysis, the provision of fault reports,
lead-time/performance metrics, or hardware upgrades
o Those exclusions identified in Section 1.5 and 1.6 of Part One of this
Annex "G". Software is not warranted to operate uninterrupted or error
free.
2.0 GENERAL
2.1 Holidays Observed by Airspan
Please refer to your local Airspan representative to get information of
Local National Holidays observed at Axtel's location.
2.2 Call Center Access for Technical Support
The Airspan Call Center will function as a single point of contact for the
receipt of all support calls and inquiries. The remote support effort will
begin with a telephone call and will continue with the appropriate actions
to be taken according to Airspan Case Severity Classifications.
In accordance with Table 2-R below, the Call Center will register and
manage requests for Remote Technical Assistance during normal business days
(M-F) and hours (9:00-18:00 hrs), excluding holidays for Business Critical,
Major and Minor Severity Problems and for E1 and E2 Severity Problems the
Call Center will be available 24 hours a day, 365 days a year. General
provisions for accessing Technical Assistance services include:
o Airspan may, where applicable, also provide a customer with the
ability to open, view, and modify cases directly within the Airspan
case-tracking system via xxx.Xxxxxxx.xxx. The customer will bear
telecommunication facility charges and/or long distance toll charges
associated with access to xxx.Xxxxxxx.xxx
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Purchase and License Agreement for FWA Equipment (December 2004)
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o Where toll-free access is not available, Axtel will bear
telecommunication facility charges and/or long distance toll charges
for access to the Call Center
o All cases are logged into the Airspan case-tracking system. The case
is time-stamped and a case reference number allocated. Furthermore,
Airspan will request that Axtel agree to a case priority level
o E1 and E2 priority cases are to be reported by telephone only
o Axtel to escalate a case to higher levels of management within
Airspan, in accordance with the escalation table in section 2.2.5.
2.2.1 Airspan Technical Support Services Call Process
When calling Airspan for Technical Assistance or Emergency Recovery,
Axtel's representative will be asked to provide the following information:
1. Company name 2. Caller name and phone number 3. Personal Identification
Number (PIN) or a unique Axtel Purchase Order number or credit card number,
if a PIN has not been issued.
4. Site Location/Site ID
5. Product on which the problem is being reported 6. Problem description and
severity
A Call Center agent will generate a Case Reference Number (CRN), which will
be provided to Axtel for tracking the case. An Airspan technician will then
team with Axtel's representative to resolve the reported issue.
2.2.2 Call Center Phone Numbers
Axtel sites in Latin America will access the Airspan technical support
organizations by calling:
Tel: + (0) 000 000-0000
email: from the Airspan Web
Site:://xxx.xxxxxxx.xxx/Xxxxx/XxxxxxxXxxx/xxxxxxxxxxx.xxx
2.2.3 Technical Support Response Times
Once Axtel has opened a CRN at the Airspan' Call Center and depending on
the Severity Classification, an Airspan Technical Support (NTS) Engineer
will contact Axtel's representative as per the terms set forth in Table 2-R
below.
Page 00
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--------------------------------------------------------------------------------
2.2.4 Technical Support Case Priority
The definitions in this Section 2.2.4 are generic and shall apply to the
limited extent that this Annex G covers Hardware warranty only. Problem
reports will be classified as set forth in the tables below.
------------------- -------------------------- --------------------------------------------------------------
TL9000 Severity Airspan Case Priority Examples
Classification & Definition
------------------- -------------------------- --------------------------------------------------------------
Critical E1 >> Total or partial network element outage
Problems that severely >> A reduction in capacity or traffic handling
affect service, capability such that expected loads cannot be handled
capacity/traffic, >> Failure resulting in dynamic routing, switching
billing and capability or transport loss
maintenance >> Any loss of safety or emergency capability (e.g.,
capabilities and emergency calls such as 911 in North America)
require immediate >> Loss of the system's ability to perform automatic
corrective action, system reconfiguration
regardless of time of >> Inability to restart the system
day or day of the >> Loss of billing/accounting capability
week. >> Corruption of billing or system databases that
requires service affecting corrective actions
>> Other problems that severely affect service,
capacity/traffic, billing, and maintenance
capabilities or are jointly viewed by Airspan and
Axtel as critical
------------------- -------------------------- --------------------------------------------------------------
--------------------- --------------------- -----------------------------------------------------------------
TL9000 Severity Airspan Case Examples
Classification Priority &
Definition
--------------------- --------------------- -----------------------------------------------------------------
Major E2 >> Loss of redundancy of critical functions
Problems that >> Loss of protection switching capability
result in >> Short outages equivalent to system or subsystem
potential service outages not seriously impacting service with accumulated
degradation duration of greater than two minutes in any 24-hour
and/or total period, or that continue to repeat during longer periods
outage. Serious >> A reduction in provisioned capacity of 5% and for a
situation not cumulative duration of more than 10 minutes per 24 hours
involving service >> Repeated degradation of DS1/E1 or higher rate spans or
degradation in a connections
live environment, >> Loss of system's ability to perform automatic system
but leading to a reconfiguration
total or partial >> Loss of access to maintenance or recovery operations
loss of >> Any loss of functional visibility and/or diagnostic
redundancy. capability
>> Loss of system's ability to provide any required
system critical/major alarms
>> Total loss of access to provisioning
--------------------- --------------------- -----------------------------------------------------------------
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--------------------------------------------------------------------------------
------------------- ------------------------------------- ---------------------------------------------------
TL9000 Severity Airspan Case Priority & Definition Examples
Classification
------------------- ------------------------------------- ---------------------------------------------------
Major Business Critical >> The customer has been given a
Problems that result in a major work-around but the situation still
degradation of system or service requires constant attention due to the
performance that impacts service temporary nature of the work-around
quality or significantly impairs >> Software application/migration issues
network operator control or that gate the introduction of new services
operational effectiveness. or functionality
Overall network is degraded >> Billing error rates that exceed
resulting in severe limitations specifications
to operations or network >> Corruption of system or billing databases
management software product has
major feature that is not working
properly with only difficult
workaround.
------------------- ------------------------------------- ---------------------------------------------------
-------------------- ---------------------- -----------------------------------------------------------------
TL9000 Severity Airspan Case Examples
Classification Priority &
Definition
-------------------- ---------------------- -----------------------------------------------------------------
Major Major >> Degradation of any capacity/traffic measurement
Problems that function; degradation of functional visibility and/or
result in diagnostic capability
conditions that >> Degradation of access for maintenance or recovery
seriously affect operations
system operation, >> Degradation of the system's ability to provide any
maintenance and required system critical/major alarms
administration, >> Loss of access for routine administrative activity
etc. and require >> Any system failure without direct immediate impact
immediate >> Intermittent degradation of services; partial loss of
attention. The access to provisioning
urgency is less >> Software application/migration issues that do not
than in a Business impact service
Critical situation >> Reduction in any capacity/traffic measurement function
because of a >> Any loss of functional visibility and/or diagnostic
lesser immediate capability
or impending >> Any significant increase in product-related customer
effect on system trouble reports
performance, >> Follow-up to E1 customer problems
customers, and >> Other problems that disrupt or prevent routine system
Axtel's operation activities, or problems that are jointly viewed as Major
and revenue. events by Airspan and Axtel
-------------------- ---------------------- -----------------------------------------------------------------
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------------------- ----------------------- -----------------------------------------------------------------
TL9000 Severity Airspan Case Examples
Classification Priority &
Definition
------------------- ----------------------- -----------------------------------------------------------------
Minor Minor >> Service analysis, recorded announcements, operational
Problems do not measurements, maintenance program, or network management
significantly problems; or system-related documentation inaccuracies,
impair the that do not affect call processing
functioning of the >> Test equipment failures for which a backup or manual
system and do not alternative can be employed
significantly >> Circuit pack testing problems
affect service to
customers. These
problems are
tolerable during
system use.
------------------- ----------------------- -----------------------------------------------------------------
2.2.5 Case Resolution Objectives and Escalation Procedures
The definitions in Table 2-R below are generic and shall apply to the
limited extent that this Annex G covers Hardware warranty only.
Airspan Technical Support case resolution targets are based in Airspan best
efforts and set according to the following TL9000 standard:
"Table 2 - R"
--------------- -------------------------------- --------------------------- ------------- ----------------
TL9000 Actions Resolution
Response Times Target
Severity Service
Classification restoration Targets
time Based on RQMS*
--------------- -------------------------------- --------------------------- ------------- ----------------
Business Non -
Hours Business
Hours
--------------- -------------------------------- ------------- ------------- ------------- ----------------
E1 (*1) Worked continuously (7 x 24) 15 min 30 min 7 Xx 00 xx
until resolution or
workaround is provided
--------------- -------------------------------- ------------- ------------- ------------- ----------------
E2 (*1) Worked continuously (7 x 24) 15 min 30 min 8 Hr 10 Days
until resolution or
workaround is provided
--------------- -------------------------------- ------------- ------------- ------------- ----------------
Business Worked during normal business Next 24 Xx 00 Days
Critical and days and business hours. 2 hrs Business
Major (*2) Day
--------------- -------------------------------- ------------- ------------- ------------- ----------------
Minor (*2) Worked during normal business Next Next 30 Days 180 days
days and business hours. Business Business
Day Day
--------------- -------------------------------- ------------- ------------- ------------- ----------------
(*1) This Service is provided 7 x 24
(*2) This Service is provided in Normal Business Hours
Note: The times set forth in Table 2 - R above, are subject to Airspan and Axtel
working together in conjunction on a reasonable efforts basis to find a
workaround for services restoration and resolution within the target times.
These times do not represent an obligation or performance indicator.
* RQMS - Reliability and Quality Measurements for Telecommunications Systems.
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"Airspan Escalation Procedure"
---------------------------------------
Axtel's NOC
---------------------------------------
---------------------------------------
Call Center Airspan
---------------------------------------
---------------------------------------
Airspan Technical Support Engineer
---------------------------------------
---------------------------------------
Airspan Technical Support Manager.
---------------------------------------
---------------------------------------
Airspan Technical Support Sr. Mgr.
---------------------------------------
-------------------------------------------------------------------
------------------------------ -----------------------------
Airspan Technical Support Airspan Axtel Operation
Director Leader
------------------------------ -----------------------------
At Closing Date, Airspan will provide Axtel with the contact
information of the persons involved in this Escalation Procedures, as
well from time to time, the changes to such contact information will
be provided to Axtel.
2.2.6 Case Progress Status
Airspan Technical Support use the following status to differentiate the case
conditions during the evolution of the case investigation. A set of status, its
related meaning and its relationship with the case age, are defined in the table
below:
--------------------- ----------------------------------------------------------------- ----------------
Status Description Airspan Clock
--------------------- ----------------------------------------------------------------- ----------------
Newly Opened This status is the default. It signifies that no work has been Start
done on the case.
--------------------- ----------------------------------------------------------------- ----------------
WIP Level 1 This status is used when a NTS Engineer is actively working on Not Stopped
the Case.
--------------------- ----------------------------------------------------------------- ----------------
This status is used when a Second Level Support Engineer is
WIP Level 2 actively working a case Not Stopped
* Second Level Support: Software Support, Product Support.
--------------------- ----------------------------------------------------------------- ----------------
Escalated This status is used when a Design Engineer
To Design is actively working Not Stopped on the case
--------------------- ----------------------------------------------------------------- ----------------
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--------------------- ----------------------------------------------------------------- ----------------
Status Description Airspan Clock
--------------------- ----------------------------------------------------------------- ----------------
Answer Design Engineer has concluded its
From Design investigation and has Not Stopped replied back to the
NTS Engineer
--------------------- ----------------------------------------------------------------- ----------------
During the course of conducting their research, the
NTS Engineer may need additional information or
activity from the
With A Axtel Axtel. The "With a Axtel" status is assigned when the NTS Stopped
Engineer is waiting on a Axtel response in order to continue
investigation
--------------------- ----------------------------------------------------------------- ----------------
If a temporary solution is provided that eliminates
Axtels pain until a permanent solution can be
delivered, RQMS requirements allow the case to be set
to an "IS" status during this window of time if
approved by the Axtel. In calculating case age, this
Interim Solution interval will be discounted if the permanent
fix was delivered Stopped on the negotiated commitment
date. If the permanent fix does not resolve the
reported problem, case status shall be changed to Work
in Progress (Level 1 or 2). If the case is returned to
a Work in Progress (Level 1 or 2) status after using
the IS, the IS time period will be added to the RQMS
age of the case.
--------------------- ----------------------------------------------------------------- ----------------
Axtel agrees to live with the problem condition and
that the fix will be delivered as part of a future
Airspan product release (software release, maintenance
release, documentation release or hardware revision.
Requirements to use this status include Axtel consent;
fix identification, and delivery
Future Deliverable commitment. This status code does not add
time to the RQMS age Stopped of the case unless the
solution fails and the case is moved back to Work in
Progress (Level 1 or 2) status. If the case is
returned to a Work in Progress (Level 1 or 2) status
after using the FD, the FD time period will be added
to the RQMS age of the case.
--------------------- ----------------------------------------------------------------- ----------------
Solution Delivered or available for testing and
verification. If the delivered solution does not
resolve the reported problem, the status will be
changed to Work in Progress (Level
Solution Delivered 1 or 2). If the case is returned to a Work
in Progress (Level Stopped 1 or 2) status after using
the SD status, the SD time period will be added to the
RQMS age of the case.
--------------------- ----------------------------------------------------------------- ----------------
Pending OEM Vendor The case has been handed over to an OEM Vendor for resolution Not Stopped
--------------------- ----------------------------------------------------------------- ----------------
2.2.7 Case Resolutions Classifications
Airspan Technical Support case resolutions, which shall be mutually
agreed for each case:
o Cannot Reproduce: After 60 days and a reasonable effort, a problem has
not been observed in the Network, is not reproducible or sufficient
information has not been provided to adequately troubleshoot the
problem and isolate the root cause
o Axtel Process: Human errors are present or Axtel has failed to follow
procedures recommended and documented by Airspan
o Design Intent: The functionality required by customer does not align
with the design specifications of the product set forth in Agreement,
in which case Airspan shall make clear to Axtel which is such design
specification
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Annex G - Warranty Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
(i.e., the functionality is unsupported), and the issue can only be
resolved through new development efforts subject to a separate product
development agreement and charges.
o External Cause: Issue caused by non-Airspan products
o Hardware Deficiency: A problem is isolated to defective hardware
materials or workmanship or substantial nonconformance to
specifications published by Airspan
o Hardware Failure: A problem is caused by a hardware component failure
that falls within Mean Time Between Failure (MTBF) limitations
o Airspan Literature: Required Airspan technical document does not exist
or the contents of an existing document are in error [for example, an
incomplete Airspan Technical Publication (NTP)]
o Airspan Process: A problem occurs as a result of a Airspan process
deficiency
o Opened in Error: The case should not have been opened
o Scheduled Event: An outage occurs resulting from planned maintenance,
installation, or manual initialization, including such activities as
parameter loads, software/firmware changes, and other OA&M activities
o Software Deficiency: A problem is isolated to a software design
deficiency.
2.3 Axtel Order Process for FWA Repair Services
This process supports the delivery of Airspan FWA Repair Services for
Axtel. When requesting a Hardware warranty repair service, Axtel
should have the following required information ready when placing a
repair order with Airspan:
1. Axtel or distributor name
2. Axtel ID (Project #, Site ID)
3. Requestor name, phone and fax number, and e-mail address
4. Axtel ship to address
5. Part number (PEC or CPC or manufacturer's part number)
6. Quantity (quantity of one per serial number)
7. Serial number of the defective part(s) being returned (if applicable)
8. Warranty status
9. Confirmation of the availability of a fully completed Airspan fault
report form for said product.
10. Any additional information about product (system type or software
release)
11. Any special shipping instructions
Upon receiving Axtel's request and after any diagnostics assistance,
Airspan will allocate a part request number to each FRU to be repaired
and notify Axtel of the relevant part request number.
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Annex G - Warranty Services
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
This part request number, also known as the Return Material
Authorization (RMA) number, is critical for tracking individual orders
and must be referenced on failure tags, shipping/packing lists,
returned defectives, and any correspondence or inquiries concerning
the order.
The customer's representative can call in, fax or e-mail a Repair
Service order directly to Airspan the UK using the following contact
means:
Office hours (Monday through Friday from 9:00 a.m. to 6:00 p.m. (Local
time)
+ 00-0000-000000
Faxes
All faxed orders will be processed and assigned an RMA# by the close
of the next business day. Faxed emergency orders must also be called
in to verify receipt of faxes. E-mail To obtain a parts request form
by e-mail, please send an e-mail message to any of the above addresses
and note "repair order form" in the subject/title field. A form will
be sent automatically. Place the PO number in the subject/title field
when e-mailing a completed parts request form back to Airspan. For
order confirmation, Airspan will respond with an RMA number to all
e-mail orders by the next business day.
2.4.1 Method of Payment for Excluded Services
If Axtel requests a service that is neither part of the scope of this
Warranty Service nor within the control or responsibility of Airspan
under the Technical Assistance Support Services Agreement, then
Airspan will charge additional fees to perform such services, in the
event that Airspan agrees to perform them. Airspan reserves the right
not to perform any Service not covered by this Warranty.
2.4.2 Package Labeling Instructions and Addresses for Returns
Circuit packs should be packed in anti-static containers designed
specifically for the circuit packs in order to avoid damage during
shipment. Other parts should be individually wrapped in either
anti-static packaging or packaging specifically designed for that
product to avoid damage during shipment. Airspan will inform customers
of any improper packaging, which will void the warranty. All materials
should be returned pre-paid and sent to the appropriate Airspan repair
facility. The customer should use discretion in selecting shipping
methods. Airspan recommends that customers insure all packages to
cover possible loss or damage during shipping, regardless of warranty
status.
A completed Airspan fault report must be filled out and attached to
each returned item to assist in failure assessment and problem
tracking. Fault reports
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are sent with each replacement shipment. Axtel can obtain additional
supplies by contacting the Airspan Customer Support Center.
Airspan will inform customers of any discrepancy in return shipments.
Any discrepancy, whether it is quantity (more or less), product
returned not matching what was ordered, inability to determine
complete order information, or non-suitable packaging, would be noted
and addressed.
Defective Return Packing Slips
Defective return packing slips should be used to return all defective
parts to Airspan. Airspan will provide defective return packing slips
for use to return shipments. A copy of the defective return packing
slip should be placed in all the cartons and attached outside. This
duplication will aid in processes and proper identification of
returned material. The RMA number and the PO number should be clearly
marked on the outside of each box. If a customer supplies a packing
slip, the following information must be included on the
shipping/packing list for proper handling:
Item (Information Required)
1. From (Company name, return address, and telephone number)
2. Ship Date (Date parts are shipped from Axtel)
3. Ship via (Carrier or Enterprise name)
4. Waybill number (Carrier or Enterprise tracking number
5. Number of Cartons (Number of cartons being sent on shipment)
6. Axtel's PO# (Provided, if applicable)
7. Repair order number (RMA# issued by Call Center when order is placed)
8. Site ID or Project number
9. Item Number
10. Quantity ordered
11. Quantity returned
12. Airspan Part number
13. Description of item
14. Serial number (The serial number for each item in the shipment)
15. Shipment requested by (Signature of Axtel's representative)
Repair Facility Addresses
For RSS's the equipment should be sent to Solectron Guadalajara and
for base stations to Solectron Dumfermline
Attn: Airspan Hardware Support Representative
This address may be modified from time to time by Airspan.
Page 19
Annex H - Acceptance Procedure
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
ANNEX H
ACCEPTANCE PROCEDURE
NEW FWA RSS F6 UNIT
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Annex H - Acceptance Procedure
Purchase and License Agreement for FWA Equipment (December 2004)
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PURCHASE AND LICENSE AGREEMENT FOR FWA EQUIPMENT
ANNEX H
ACCEPTANCE PROCEDURE - NEW FWA RSS F6 UNIT
--------------------------------------------------------------------------------
This is the Annex "H" of the Purchase and License Agreement for FWA Equipment,
dated as of December __, 2004 (the "Agreement"), is entered into by and among
Airspan Communications Limited ("Airspan"), and Axtel, S.A. de C.V. ("Axtel").
The Parties hereby agree to determine and establish on or before January 31st,
2005, the acceptance procedure to be used in the First Market Application of the
New FWA RSS F6 Unit (the "Acceptance Procedure"). The acceptance procedure shall
demonstrate, verify and prove that the New FWA RSS F6 Unit shall have at least
the same form, function and fit of both of the current RSS Equipment (jointly F2
and F5 RSS equipment), in accordance with the technical specifications set forth
in Annex "D" of the Agreement.
Airspan will provide a number of fifteen (15) New FWA RSS F6 Unit 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 F6 Unit before the
New Product Commercial Launch (the "First Market Application").
The New FWA RSS F6 Unit shall pass successfully the First Market Application
made by Axtel pursuant the Acceptance Procedure.
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 F6 Unit. Airspan will
provide a quote for this service under this Agreement at reasonable costs and
prices.
Page 2
Annex J
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
Annex J
PLA FWA Delivery Times
Page 1
Annex J
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
ANNEX J
DELIVERY TIMES
1.- Delivery Time of any FWA Product
(i) Any FWA Product
Subject to the provisions of section 5.19 of the Agreement, the firm
Delivery of any FWA Product (RSS, complete or segregated RBS Equipment
or Spare Parts) shall be 20 weeks after Order Acceptance as provided
in Section 2 of the Agreement, provided that the payments for such
equipment shall be made pursuant the terms set forth in Section 5.3 of
the Agreement.
2.- Partial Deliveries
(i) RSS Equipment
Partial deliveries of an Order for RSS equipment shall be allowed only
in the following circumstances:
a. For any order of RSS equipment Airspan may deliver no less than
750 RSS units at any one time;
b. where Airspan has made a partial delivery in accordance with a.
above, the remaining quantities of the Order; or
c. unless otherwise agreed in writing by the Parties.
(ii) RBS Equipment
Partial RBS deliveries shall only be allowed if Airspan delivers
complete units of RBS Kits, either 27B or 18B RBS as per the
Description of the RBS Kit, unless otherwise agreed in writing by the
Parties.
(iii) Segregated RBS Equipment or Spare Parts
Partial segregated RBS Equipment or Spare Parts deliveries shall be
only allowed to the 50% of the respective complete Order, unless
otherwise agreed in writing by the Parties.
(iv) Partial shipments as provided above, shall not release Airspan of its
obligations to deliver on time such Products as provided in this Annex
J. Any delay in the delivery of such Products shall be subject to the
terms set forth in section 3.4 of the Agreement.
Page 2
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.
Annex K
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
ANNEX K
PURCHASE COMMITMENT
Page 1
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.
Annex K
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
ANNEX "K"
PURCHASE COMMITMENT
--------------------------------------------------------------------------------
1.- Total Purchase Commitment. Axtel hereby agrees to purchase and take
delivery US $38,700,000.00 Dollars (Thirty Eight Million Seven Hundred
Thousand United States Dollars) of Airspan equipment from December 22, 2004
through to December 31, 2006 (the "Purchase Commitment").
2.- Purchase Commitment Fulfillment. The Parties hereby agree that the Purchase
Commitment mentioned above will be fulfilled taking in consideration the
following terms and conditions:
a) Second Lines Activation Fees. US$[ * ] ([ * ] Dollars) of Second Lines
Activation Fees set forth in Section 22 of the Agreement, will be
included in the Purchase Commitment as and when paid by Axtel.
b) The Commercial Terms Letter Purchase. The US$[ * ] Dollars ([ * ]
United States Dollars) of equipment detailed in the Special Payment
and Commercial terms letter dated [ * ] for delivery between [ * ]
will be included in the Purchase Commitment as and when delivered;
c) Minimum Purchase of RSS Equipment. Axtel shall purchase and take
delivery of a minimum of 45,000 RSS from May 1, 2005 through to July
31, 2006 (for an approximately amount of US$14,512,500.00 Dollars);
RSS orders placed in accordance with c) above shall be equal to or
greater than 3,000 units per month
d) Minimum Purchase of RBS Equipment. From [ * ], Axtel shall purchase
and take delivery of US$[ * ] Dollars ([ * ] Dollars) of Proximity
Base Station Equipment;
e) Minimum Purchase of Airspan Equipment (January - December 2006). For
the calendar year 2006, Axtel shall purchase and take delivery of a
minimum of US$9,332,500.00 (Nine Million Three Hundred Thirty Two
Thousand Five Hundred United States Dollars) of any Airspan equipment,
provided that, of such amount, US$5,586,000.00 shall be of Airspan Non
RSS Equipment and the remaining amount (US$3,746,500.00) shall be of
any Airspan equipment.
Page 2
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.
Annex K
Purchase and License Agreement for FWA Equipment (December 2004)
--------------------------------------------------------------------------------
For the avoidance of doubt, the US$4,480,000.00 Dollars of purchases
required in f) below will be included in this $9,332,500.00 Dollars
total to the extent that the equipment is delivered in 2006.
f) Minimum Purchase of Airspan Equipment (August - December 2006). From
August 1, 2006 through to December 31, 2006, Axtel shall purchase and
take delivery of an additional 13,892 RSSs or other Airspan products
with a minimum purchase price of US$4,480,000.00 Dollars (Four Million
Four Hundred Eighty Thousand United States Dollars);
In order for Airspan to continue its obligation to supply FWA
equipment beyond May 1st, 2006, Axtel will be required to place and
maintain orders of [ * ] RSS units a month from January 1st 2006
g) The parties agree that in July 2005 they will discuss and schedule, if
possible, the delivery times for future purchases under the Purchase
Commitment, taking in consideration the terms and conditions set forth
in this Agreement.
3. Special Term. Any purchase made by Axtel in 2005 for an amount in excess of
the amounts set forth in sections (a), (b), (c) and (d) above, shall be
accounted for as an Axtel purchase under sections (e) and (f) above, so in
the aggregate the Purchase Commitment of Axtel shall not be greater than
the amount of US$38,700,000.00 Dollars (Thirty Eight Million Seven Hundred
Thousand United States Dollars).
Page 3