EXHIBIT 10.4
CONTRACT NO. IFN9301C
AMENDMENT XX. 0
XXXXXXXXX XX. 0
TO
THE SUPPLY AGREEMENT
FOR
TRANSMISSION EQUIPMENT
BETWEEN
INTERSTATE FIBERNET, INC.
AND NORTHERN TELECOM INC.
This Amendment No. 1 to the Supply Agreement for Transmission Equipment between
Interstate Fibernet, Inc. and Northern Telecom Inc., Contract No. IFN9301C ("the
Agreement") shall be effective on the date last signed.
All Capitalized terms which are defined in the Agreement shall have the same
meaning in this Amendment No. 1 as in the Agreement.
WHEREAS, Buyer and Seller wish to outline the terms for Affiliate purchases of
Equipment from Seller,
NOW Therefore, the Agreement is hereby modified as follows:
1. Section 4, "Ordering," is hereby deleted in its entirety and replaced with
Section 4 attached hereto;
2. Section 8, "Payment," is hereby deleted in its entirety and replaced with
Section 8 attached hereto;
All other terms and conditions shall remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year last written below.
INTERSTATE FIBERNET, INC. NORTHERN TELECOM INC.
By:/s/ Xxxxxx X. Xxxxx By: /s/ X. Xxxxxxxxx for X. Xxxxx
----------------------------- -------------------------------
(Signature) (Signature)
Name:/s/ Xxxxxx X. Xxxxx Name:/s/ XXXXX XXXXXXXXX
--------------------------- -----------------------------
(Print) (Print)
Title: General Manager Title: SR. MANAGER
-------------------------- ----------------------------
Date: Sept. 2, 1993 Date: 9/9/93
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CONTRACT NO. IFN9301C
AMENDMENT NO.1
PAGE 2 OF 2
Amendment No. 1 to the Supply Agreement for Transmission Equipment between
Interstate Fibernet, Inc. and Northern Telecom Inc., Contract No. IFN9301C is
hereby approved by an authorized representative of Northern Telecom Inc.
NORTHERN TELECOM INC.
BY: /s/ Xxxx X. Xxxxx
------------------------------
(Signature)
Name: Xxxx X. Xxxxx
----------------------------
(Print)
Title: VP Carrier Networks
---------------------------
Date: 9/13/93
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CONTRACT NO. IFN9301C
PAGE 1 0F 3
4. ORDERING
4.1 During the Term of this Agreement and subject to the terms and
conditions contained herein, Buyer commits to purchase and take
delivery of Equipment having a minimum total price of Five Million
Dollars ($5,000,000.00) ("Total Commitment"). Buyer shall issue a
purchase order ("Purchase Order"), for the Equipment in accordance
with the following:
a) Upon signing this Agreement, Buyer shall issue a binding Purchase
Order in a minimum amount equal to the Total Commitment.
b) Buyer shall, from time to time, issue release orders ("Release
Orders"), to Seller. Each Release Order shall state the required
quantities and types of Equipment, any Services required and the
requested dates of Equipment delivery and the commencement dates
of any Services Seller is to perform.
c) Affiliates may, from time to time, issue Release Orders to
Seller. However, for a Release Order issued by an Affiliate to be
considered a qualified purchase under the Supply Agreement, such
Release Order must state that the transaction is covered by the
terms and conditions of this Agreement. Affiliates' purchases of
Equipment shall be applied towards Buyer's fulfillment of the
Total Commitment.
4.2 In order to permit Seller to meet delivery requirements, Buyer shall
issue a non-binding forecast showing the specific types and quantities
of Equipment to be released throughout the Term of this Agreement.
Buyer shall update such forecast each six (6) months.
4.3 The Purchase Order and all Release Orders issued by Buyer and its
Affiliates hereunder and accepted in writing by Seller shall be deemed
to incorporate and be governed solely by the terms and conditions set
forth in this Agreement. Any printed terms and conditions contained on
the front or back side of any Purchase Order, Release Order or
Seller's acknowledgement shall be deemed deleted and of no force or
effect. Any typed and/or written terms and conditions contained in the
Purchase Order, Release Order or Seller's acknowledgment shall be for
administrative or information purposes only i.e. to identify the scope
----
of the Purchase Order or Release Order, the types and
CONTRACT NO. IFN9301C
PAGE 2 0F 3
quantities of Equipment, any Services to be supplied, any other
equipment covered by the Purchase Order or Release Order, line
item prices and total price, delivery and any other such
information, all in accordance with the provisions of this
Agreement.
4.4 All Release Orders shall specify whether Seller is to (a) furnish
the Equipment without engineering or installation Services
("FO Orders"), (b) furnish the Equipment with engineering services
only ("E&F Orders"), or (c) furnish the Equipment with engineering
and installation Services ("EF&I Orders"). With respect to E&F
Orders and EF&I Orders, the specific engineering and/or installation
Services to be performed by Seller shall be as more fully described in
the applicable Release Order.
4.5 All Release Orders issued hereunder by Buyer and its Affiliates are
subject to written acceptance by Seller within fifteen (15) days
from Seller's receipt of a Release Order. If a Release Order is not
so accepted within such fifteen (15) day period, such Release Order
shall be deemed to be not accepted and neither Buyer, its Affiliates
or Seller shall have any further obligation with respect thereto
except for Buyer's obligation to fulfill the requirements of the
Total Commitment. If a Release Order is received from an Affiliate,
the Release Order shall contain the Buyer's express written
authorization.
4.6 Buyer absolutely, irrevocably and unconditionally guarantees the
performance under any Release Order placed by any of its Affiliates
and the contract created thereby and hereby accepts all such liability
with respect to a breach of Affiliates' obligations under such Release
Order.
4.7 Any requested change to a Release Order initiated by Buyer or its
Affiliates, after Seller's acceptance of the Release Order, and any
resulting adjustments to prices, schedule and/or other requirements of
the Release Order shall be mutually agreed upon and subsequently detailed
in a written change to the Release Order ("Change Order"), referencing the
affected Release Order and executed by authorized representatives of Buyer
and Seller. Any adjustment to the prices for Equipment and charges for any
Services, as applicable, in a Change Order shall be based on those
Equipment prices set forth in Exhibit A and Seller's then current charges
for Services. In the event that the Change Order affects work already
performed, the adjustment of the Release Order price shall include
reasonable charges incurred by Seller related to such work. Seller shall at
Buyer's or its
CONTRACT NO. IFN9301C
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Affiliates' request, substantiate such costs. No such changes shall be
performed until a Change Order has been executed by Seller and Buyer
or its Affiliates as described above.
8. PAYMENT
8.1 Seller shall invoice Buyer or its Affiliates upon shipment of the
Equipment and Buyer or its Affiliates shall pay to Seller the price of
each shipment of Equipment (including any freight and/or insurance
prepaid by Seller) within thirty (30) days from the date of invoice.
Charges for Services rendered hereunder shall be invoiced at the
completion of such Services, and paid by Buyer within thirty (30) days
from the date of Seller's invoice therefor. Buyer hereby expressly
waives any other diligence, demand, protest or any notice of any kind
whatsoever as well as any requirement that Seller exhaust any remedy
or right against such Affiliate.
8.2 Overdue payments may, at Seller's sole discretion, be subject to
interest charges, calculated daily from the due date, at one and one
half percent (1 1/2%) per month or such lesser rate as may be the
maximum permissible rate under applicable law.
