Exhibit 10.11
MASTER AGREEMENT
This Agreement made this 8th day of August 1997 between NEC America, Inc., a
corporation organized and existing under the laws of the State of New York
(hereinafter "Seller") and PathNet, Inc. a corporation organized and existing
under the laws of the State of Maryland (hereinafter "Buyer").
Seller hereby agrees to sell to Buyer, and Buyer shall purchase from Seller
during the term of this Agreement Equipment, Services and licensed Software as
detailed in Appendix A attached hereto and made a part hereof, at the prices
specified herein and subject to the terms and conditions of this Agreement.
Article 1. Definitions
1.1 As issued herein:
(a) Agreement means this Agreement, all Appendices hereto and all
annexes, appendices or attachments to the Appendices.
(b) Buyer Company means any person, firm, partnership, corporation
or other entity ("Company") in which Buyer has, directly or
through a Subsidiary of Buyer, or in which an entity
majority-owned by Buyer and/or one or more Subsidiaries of
Buyer has, directly through a Subsidiary of such entity, an
interest as described below (any of Buyer, such a Subsidiary
of Buyer or such an entity being referred to as a "Buyer
Entity"). A Buyer Entity shall be deemed to have any interest
sufficient to qualify a Company as a Buyer Company if the
Buyer Entity (a) holds, or has a binding agreement or option
to acquire, at the time of any order placed under this
Agreement for such Company (the "Order Date"), an ownership
interest of at least thirty-three and one third (33 1/3 %)
percent of such Company and in which no other entity has more
than such ownership interest; or (b) on the Order Date holds,
or has a binding agreement or option to acquire, an ownership
interest of at least fifty (50%) percent of an entity which
holds an ownership interest of at least thirty-three and one
third (33 1/3%) percent of such Company. The term Buyer
Company further includes any entity that enters into an
agreement with Buyer to provide fixed point microwave services
and which is permitted by Buyer to submit orders directly to
Seller for Equipment to construct paths in addition to those
being constructed by Buyer as part of Buyer's microwave radio
network.
(c) Days means consecutive calendar days and not business days.
Such term is not exclusive of holidays.
(d) Equipment means the equipment specified in Appendix A to this
Agreement, and such other equipment as Seller or its
affiliates may hereafter manufacture, or have manufactured and
make available and sell to Buyer and which Buyer hereafter
orders from Seller under this Agreement. Equipment to be made
available to Buyer by Seller under this Agreement shall be all
Equipment now or hereafter generally made available by Seller
and its affiliates to its customers.
(e) Commercial Service means the commercial use of Equipment or
Software, exclusive of operation for purposes of conducting
tests. The date that a given item of Equipment or Software is
actually placed in Commercial Service shall be referred to as
the Commercial Service Date for such item.
(f) Services means the services set forth in the Radio Division
Product Line Support Policy attached hereto as Appendix A.
(g) Software means all computer software furnished hereunder
including, but not limited to, computer programs contained on
a magnetic or optical storage medium, in a semiconductor
device, or in another memory device or system memory
consisting of (i) hardwired logic instructions which
manipulate data in central processors, control input-output
operations, and error diagnostic and recovery routines, and
(ii) instruction sequences in machine-readable code that
control call processing, peripheral equipment and
administration and maintenance functions. The term Software
shall include Software Updates and Software Enhancements.
(h) Software Enhancements means all modifications or improvements
to the Software which improve performance or capacity of the
Software, but shall not include Software Updates.
(i) Software Updates means periodic updates to the Software to
correct defects in the Software, but shall not include
Software Enhancements.
(j) Specifications means the specifications and performance
standards of Equipment and Software as set forth in Appendix A
and B and in any other document published by Seller which
contains specifications or performance standards for Seller's
Equipment and/or Software.
(k) Subsidiary of a company means a corporation or other entity
the majority of whose shares, securities or other evidence of
ownership entitled to vote for election of directors or
equivalent management is now or hereafter owned or controlled
by such company either directly or indirectly; but any such
corporation or other entity shall be deemed to be a Subsidiary
of such company only as long as such ownership or control
exists. As used in this Agreement, "control" shall mean
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person
or entity, whether through the ownership of voting securities,
by contract or otherwise.
1.2 Whenever the words "include" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation".
2
Article 2. Scope of Contract
2.1 Each of Buyer, any Buyer Company, or any Subsidiary of Buyer as
agent for or for resale to a Buyer Company shall have the right to
purchase, and Seller shall be obligated to sell, as ordered by
Buyer, any Buyer Subsidiary or a Buyer Company during the term of
this Agreement, Equipment, Software and Services and the terms and
conditions of this Agreement shall apply to such orders. Any Buyer
Company which submits an order for Equipment, Software or Services
under this Agreement, either directly to Seller or from Buyer or a
subsidiary of Buyer shall be considered the "Buyer" for all purposes
of this Agreement as if such Buyer Company had entered into a
separate contract with Seller solely with respect to the items
ordered. All rights, claims or defenses Seller has or may acquire
hereunder shall be asserted solely against the Buyer Company which
has received or is to ultimately receive the Equipment, Software or
Services pursuant to such an order and such Buyer Company shall have
and may enforce against Seller all of the rights, benefits and
obligations contained herein. In addition, Buyer or any Subsidiary
of Buyer ordering Equipment, Software and Services shall have the
right, in its sole discretion, to enforce or assert on behalf of
itself or any Buyer Company any right, claim or defense available to
it or any such Buyer Company hereunder.
Seller, however, reserves the right to reject any order from a Buyer
Company as described as any entity that enters into an Agreement
with Buyer to provide fixed point Microwave Services and which is
permitted by Buyer to submit orders at the prices stated herein,
Appendix A, directly to Seller for Equipment. Seller's rejection,
which shall be reasonably based, shall be dependent upon the
parties' failure to reach a mutually acceptable agreement. Such an
agreement shall be no more restrictive than Seller's then current
standard terms and conditions.
2.2 This Agreement is comprised of these terms and conditions and the
following Appendices, which are attached hereto and made a part
hereof:
(a) Appendix A -- Seller's Quotation, DCQ96-RI9238D, dated
2/27/97, excluding General Terms and Conditions.
(b) Appendix B -- Seller's Specifications.
Article 3. Prices
3.1 Subject to Section 3.2, the pricing stated in Appendix A is valid
for orders placed within three years from the signing of this
Agreement and is exclusive of any taxes or fees imposed upon, or
made payable by Seller, its agents, assignees, or subcontractors
arising out of performance under this Agreement.
Buyer shall pay all such taxes now or hereinafter due and owing or
arising under this Agreement including, but not limited to,
occupation, excise, sales or use taxes imposed upon the Buyer,
Seller of the Equipment. In the event any such taxes, duties, fees
or similar charges are imposed upon or made payable by Seller, Buyer
shall promptly reimburse Seller upon receipt of invoice.
Notwithstanding the foregoing, Buyer shall not
3
be liable for the reimbursement to Seller of, and shall hold buyer
harmless in respect of any other taxes imposed upon or made payable
by Seller including, without limitation, franchise, net or gross
income or revenue, license, occupation, real or personal property.
All prices shown in Appendix A are United States Dollars, FOB United
States Port of Entry (USPOE) or United States domestic factory.
3.2 (a) Seller agrees that if at any time during the six (6) months
period prior to receipt and acceptance of, or the six months
following, an order from Buyer for any Equipment or Services, Seller
sells or has offered to sell such Equipment or Services to any third
party at a lower sales price than the sales price granted to Buyer,
then the sales price charged to Buyer for said Equipment or Services
shall be reduced to a sales price that is no less favorable to Buyer
than the sales price to such other party provided that Buyer
purchases such Equipment or Services under like terms and conditions
and similar quantities.
(b) Upon the request of Buyer, and no more often than once per
calendar quarter, Seller shall conduct a review of all sales or
offers made by it during the period commencing on the date of the
immediately preceding request (or, in the event the applicable
request is the first such request hereunder, the date three (3)
months prior to the date hereof) and ending on the date of the
applicable request in order to determine whether Buyer is entitled
to any rebates, lower purchase prices or more favorable payment
terms as a result of the provisions of this Section 3.2 and, if
Buyer is so entitled, Seller shall forthwith notify Buyer and make
any necessary rebates or price adjustments with such notice and
shall make more favorable payment terms available to Buyer effective
with such notice. Seller shall, as a result of a request made by
Buyer under this Section 3.2(b), make available for examination by
independent outside auditors (under appropriate confidentiality
obligations) information in a form reasonably sufficient to allow
such auditors to confirm the accuracy of any determination made by
Seller under this Section 3.2(b).
3.3 Prices for Equipment and Services not set forth in Appendix A, if
not otherwise set forth in this Agreement, shall be no greater than
the lesser of Seller's list prices in effect at the date of
introduction thereof or at the time of ordering by Buyer, subject in
each case to any discounts made available to Buyer or made available
to all of Seller's customers that are in effect at the time of
ordering by Buyer.
3.4 The unit prices of Equipment include use of applicable Software
without additional charge, except as otherwise expressly provided.
3.5 At the end of three (3) years or when the quantity ordered reaches
1,000, the Parties agree to have a good faith negotiation of
mutually beneficial prices for the balance of the term of the
Agreement. Nothing contained herein shall obligate Buyer to submit
any minimum amount of orders to Seller.
3.6 The pricing set forth in Appendix A is applicable to any orders
received prior to the date hereof.
4
3.7 All Equipment and Software purchased by Buyer hereunder, including
Equipment provided in conjunction with repair or replacement
services, shall be new. For purposes of this Section 3.7, "new"
shall mean Equipment which has never been placed in Commercial
Service or been used for training or extended testing and shall
conform with the specifications set forth in Appendix B.
Article 4. Ordering Method
4.1 Purchase orders (hereinafter "Order(s)") placed by Buyer shall be
issued in writing by an authorized representative of Buyer.
4.2 Orders shall be delivered to the attention of Seller's Contracts
Department, setting forth the following items:
(a) Quantity and description of Equipment being ordered;
(b) Requested delivery date;
(c) Prices applicable to such Equipment;
(d) Buyer Order number; and
(e) Shipping method and destination/address;
(f) Invoicing address.
4.3 Subject to Article 4.4, Seller will review and acknowledge in
writing Buyer's written Order within fifteen (15) days from date of
receipt thereof. The actual delivery schedule shall be in accordance
with Seller's order acknowledgment letter, however, in no event will
delivery be later than the lead times set forth in Appendix A for
the particular Equipment ordered.
4.4 All orders that are within Seller's lead times (as set forth in
Appendix A), and which are otherwise in accordance with the terms of
this Agreement, shall be deemed automatically accepted upon receipt
by Seller. Should Seller receive an order with lead times that are
shorter than such lead times. Seller shall, within fifteen (15)
days, indicate in writing to Buyer whether such shortened lead times
are acceptable. If Seller shall deem a shortened lead time
unacceptable, the parties hereto shall endeavor to agree upon lead
times that are mutually acceptable. Should Seller fail to notify
Buyer of its non-acceptance of a shortened lead time within fifteen
(15) days of its receipt of the order containing the shortened lead
time, such order shall be deemed accepted without any further
confirmatory action by either party.
4.5 The terms and conditions of this Agreement are hereby deemed
incorporated into and made a part of each Order issued pursuant to
this Agreement and any orders made prior to execution of this
Agreement. Any terms and conditions appearing in an Order or in any
acknowledgment of an Order, that are in addition to or inconsistent
with or different from the terms and conditions of this Agreement,
shall be void and of no effect unless expressly agreed to by Seller
in writing.
5
4.6 Any Order submitted to Seller by Buyer in accordance with this
Agreement may be amended by written notice by Buyer delivered to
Seller's Contracts Department and setting forth (a) the order number
being amended; and (b) a description of the change being requested.
Within ten (10) days of receipt of a change order, Seller shall
advise Buyer of the cost and schedule impact, if any, of
implementing such changes; it being understood and agreed that
Seller shall be entitled to reimbursement only for the reasonable
out-of-pocket costs it incurs with respect to any change orders. In
the event that Seller does not so advise Buyer of the cost and
schedule impact thereof within such ten (10) day period, the change
order shall be deemed accepted by Seller without cost to Buyer.
Article 5. Term and Option
This Agreement shall become effective on the date upon which the
last of the contracting parties signs and shall continue in effect
for a period of five years thereafter. This Agreement shall
thereafter be renewable annually for periods of one year thereafter
with mutual consent of Buyer and Seller as evidenced in writing
sixty days prior to the expiration date.
Article 6. Payment Terms
6.1 Invoices for Buyer's Orders which require Seller only to ship
specified Equipment (hereinafter "Furnish-Only Orders") shall be
issued by Seller upon shipment of the Equipment.
6.2 All payments will be due as follows: 75% of invoice amount net
thirty (30) days from invoice date, balance due ninety (90) days
thereafter or upon Final Acceptance whichever occurs first. Without
limiting any of Seller's remedies for nonpayment or late payment of
invoices, it is agreed that invoices which are not paid when due
shall be subject to a charge of one and one half percent (1.5%) per
month, to cover handling costs with a maximum ceiling often (10)
percent.
Article 7. Warranty
7.1 (a) Seller warrants that for a period of three (3) years from the
date of Final Acceptance of any item of Equipment (the "Warranty
Period"), such Equipment shall conform with and perform the
functions set forth in the Specifications and shall be free from
defects in design, materials or workmanship (the "Warranty"). If
defects in design, materials or workmanship or nonconformity with
the Specifications appear within the Warranty Period, Seller shall
promptly, at its own election and expense, repair or replace any
such defective Equipment. Such repair or replacement includes
material, labor and services. If any components comprising a part of
the Equipment are replaced or repaired during the Warranty Period,
the Warranty Period for such repaired or replaced components shall
extend to the longer of (i) the balance of the Warranty Period or
(ii) ninety (90) days from the date of repair or replacement.
6
(b) Buyer invokes the Warranty under this Section 7.1, it shall
notify Seller promptly of the claimed fault or defect. Buyer will
return the Equipment to Seller's repair facility. For equipment
returned to Seller's repair facility pursuant to this Section 7.1
(b), Buyer shall be responsible for payment of all transportation
and freight costs to Seller's repair facility, and Seller shall be
responsible for all other transportation and freight costs incurred
in connection with its return to Buyer.
(c) During the Warranty Period, Equipment will be repaired on a
repair or replace basis, with Buyer responsible for fault isolation
(except to the extent that Buyer could not have reasonably been
expected to isolate such fault without the assistance of Seller),
removal of such Equipment, replacement from spare stock (except to
the extent that such removal and replacement requires the
specialized expertise of Seller), and packing and shipping to
Seller's repair facility. Buyer will maintain a reasonable stock of
spare Equipment as reasonably recommended by Seller for this
purpose. In the event that the quantity of spare parts proves to be
inadequate to maintain adequate stock levels of spare parts, Seller
will ship, by the most expeditious means available, adequate spare
parts of each type so depleted (until the problem creating the
inadequacy is cured), as promptly as possible after being notified
of such inadequacy.
(i) In the event that, during the Warranty Period, Buyer experiences
failure of Equipment which the Chief Technical Officer of Buyer
(hereinafter the "Buyer CTO") believes in good faith to be
excessive, the Buyer CTO shall bring such failures to the attention
of Seller by giving written notice to Seller under Article 15
hereof, and Seller shall give its highest priority to the remedy of
the cause of such failures.
(ii) Buyer may, at any time reasonably following an event described
in Section 7.1(c) (i) above, request that Seller make special
adjustments in warranties and freight payments relating to such
event, and Seller agrees to negotiate in good faith for adjustments
commensurate with the operational and/or financial effect upon Buyer
caused by such event.
(d) Subject to Section 7.1(c) above, freight charges incurred in
connection with Seller's obligations under this Section 7.1 shall be
borne by (i) Buyer with respect to the shipment of Equipment to
Seller's facility, and (ii) Seller with respect to all other
shipments of Equipment. All customs duties, levies, taxes and other
costs relating to the export or import of defective Equipment under
any warranty claim, and the export or import of repaired or replaced
Equipment under any warranty claim shall be the sole responsibility
of Seller. Subject to Section 7.2, Seller on a "best effort" basis
shall take no more than (i) if the Equipment is being replaced,
twenty (20) working days from the date the defective Equipment is
received by Seller, or (ii) if the Equipment is being repaired,
fifty (50) working days from the date the defective Equipment is
received by Seller, provided, however, that in either case Seller
shall use all reasonable efforts to reduce such time period.
7.2 Notwithstanding anything to the contrary contained in any provision
of this Article 7 or any other provision of this Agreement, if as a
result of any invocation of the Warranty, services to Buyer's
subscribers, microwave radio system performance, networking,
7
billing administration or maintenance are materially and adversely
affected, Seller shall on a "best effort basis" and at its sole cost
and expense, commence work to correct such defect or replace such
defective Equipment as soon as practicable, no later than four (4)
hours after Buyer's notification of Seller of such defect, and shall
ship any required replacement Equipment (or components thereof) to
Buyer as soon thereafter as practicable no later than twenty-four
(24) hours after notice of such defect. Where the services of
Seller's service personnel at Buyer's sites are required hereunder,
then Seller shall, at its sole cost and expense, dispatch such
service personnel on a "best efforts" basis, as are required to
correct such defects as soon after receipt of notice as practicable
but no later than twenty-four (24) hours after notice of such
defect.
7.3 If any Equipment is rendered inoperative as a result of a natural or
other disaster, Seller will make all reasonable efforts to supply or
help locate backup or replacement Equipment for Buyer by using its
reasonable best efforts to obtain the waiver of any delivery
schedule priorities and by making replacement Equipment available
from the facility then producing such products, or from inventory.
7.4 It is the intention of the parties that any problem, defect or
failure in Equipment shall be corrected as promptly as practicable
regardless of fault, and in this regard, Seller agrees to use all
reasonable efforts to work and cooperate with Buyer and any other
manufacturer, contractor or vendor to correct any such problem,
defect or failure to the extent that Seller has the capability to do
so. Seller shall, at Buyer's request, assist Buyer in determining
the cause of such problem, defect or failure and recommend the
appropriate action. Seller shall, upon its receipt of a request from
Buyer, use all reasonable efforts to correct any problem, defect or
failure in Equipment or any other Equipment (whether or not such
problem, defect or failure is the responsibility of Seller) as
promptly as practicable and xxxx Buyer for such. If Buyer and Seller
disagree as to the cause of the problem, defect or failure or the
action to be taken, then, at Buyer's request, Seller shall
nevertheless correct any problem, defect or failure in the Equipment
(whether or not such problem, defect or failure is the
responsibility of Seller) as promptly as practicable and xxxx Buyer
for such; provided, however, that Seller shall not be required to
repair or modify any equipment purchased by Buyer from any third
party unless Seller has the ability to do so. The parties shall
thereafter negotiate in good faith to determine whether such
problem, defect or failure was the responsibility of Seller or any
other party and if they are unable to resolve such dispute, such
dispute shall be submitted to a Third Party Engineer pursuant to
Section 28.1 hereof. If determined (whether by agreement or
arbitration) that such problem, defect or failure was not the
responsibility of Seller, Buyer shall promptly reimburse Seller for
all costs and expenses incurred in connection with the correction of
such.
7.5 Buyer may at any time acquire equipment and software from a source
other than Seller and such Equipment may be installed in and become
part of Buyer's system without affecting the warranties contained in
this Agreement. Buyer agrees that Seller does not warrant any
Equipment provided by a source other than Seller.
7.6 In addition to the warranties set forth herein, if Seller purchases
or subcontracts for the manufacture of any Equipment from a third
party, the warranties given to Seller by such
8
third party shall inure, to the extent applicable or permitted, to
the benefit of Buyer, and Buyer shall have the right to enforce such
warranties directly or through Seller. The warranties of such third
parties shall be in addition to and not in lieu of any warranties
given by Seller under this Agreement. If Seller subcontracts any
work under this Agreement, Seller shall be responsible for such
subcontractor's work.
7.7 Seller's limited warranty under this Article 7 shall not apply to:
(a) Damage or defects caused by Buyer's negligence, including,
but not limited to:
(i) Use by Buyer other than in accordance with instructions
furnished by Seller;
(ii) Material modifications by Buyer of Equipment without
Seller's consent; or
(b) Damage or defects to the extent caused by equipment or
software not manufactured by Seller and not purchased under
this Agreement;
(c) Any Equipment damaged by accident or disaster, including,
without limitation, fire, flood, wind, water, lighting or
power failure; or
(d) Hardware normally consumed in operation or which has a life
inherently shorter than the Equipment Warranty Period (e.g.,
fuses, lamps, magnetic tape).
7.8 Buyer shall reimburse Seller for Seller's out-of-pocket expenses
incurred, at Buyer's request, in responding to and/or remedying
Equipment or Service deficiencies not covered by the warranties set
forth herein or under a Services Supply Agreement between Seller and
Buyer.
7.9 THE WARRANTIES SET FORTH IN THIS ARTICLE 7, WARRANTIES, CONSTITUTE
THE ONLY WARRANTIES OF SELLER WITH RESPECT TO THE PERFORMANCE OF THE
EQUIPMENT. THEY ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR
ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
Article 8. Title, Delivery and Shipment
8.1 All shipments of Equipment purchased by Buyer are FOB (USPOE or
domestic factory), inland freight prepaid and billed to Buyer.
Included in the prices set forth in Appendix A are the costs of
shipment to the USPOE, if applicable.
8.2 Title and risk of loss or damage to the Equipment shall pass to
Buyer upon the Seller's tender of delivery of the Equipment to
destination specified by Buyer.
8.3 Seller shall select the common carrier and method of shipment in the
absence of specific written routing instructions from the Buyer.
9
8.4 Seller shall, at no additional charge, package Equipment in a
suitable manner in accordance with all applicable laws and
regulations and provide protection against damage during shipment
and handling. Seller shall store Equipment in dry, unheated quarters
and shall coordinate with the shippers and transporters regarding
the packing and handling of the goods in order to guarantee their
arrival in the manner required by the customs authorities of the
United States. At the request of Seller, Buyer shall, at Seller's
sole cost and expense, return all packaging materials used to ship
Equipment from Seller to Buyer in excess of the materials Buyer
reasonably requires for storage or other purposes.
8.5 Seller shall, in the performance of its obligations hereunder, grant
to Buyer its top priority in terms of (a) availability of supply and
delivery of Equipment and other materials, (b) provision of
Installation and all other Services to be provided hereunder, (c)
assignment of personnel, and (d) any other product, service or
support required to meet the commitments herein. In this regard, if
there are any delays in the performance by Seller of its obligations
under this Agreement or under any Order submitted in accordance with
the terms hereof, then, upon the written request of Buyer, Seller
shall use their best efforts to assign additional personnel,
reallocate resources, expedite Equipment deliveries and take all
such other actions as are required to eliminate such delay. Seller's
standard delivery schedules as quoted herein shall apply.
8.6 (a) If, due to the fault or negligence of Seller, Buyer's receipt of
a shipment of Equipment, or performance of Services, is delayed over
thirty (30) days beyond the date set forth in the applicable Order
(or such other date as shall have been agreed upon between Seller
and Buyer in accordance with Article 4), then Buyer shall be
entitled to and Seller shall pay to Buyer, liquidated damages in
accordance with this Section 8.6.
(b) The parties agree that damages for delay are difficult to
calculate accurately and, therefore, agree to fix as liquidated
damages, and not as a penalty, an amount equal to one percent (1%)
per week (or portion thereof) of the price of such delayed Equipment
or Services. Such damages shall not exceed ten (10%) percent of the
purchase price for the delayed equipment.
Article 9. Acceptance
9.1 With respect to each item of Equipment being purchased by Buyer
hereunder, Seller shall provide to Buyer, at the time of shipment of
such Equipment, evidence in form and substance reasonably
satisfactory to Buyer confirming that the Equipment has been tested
in accordance with Seller's standard testing procedures and that
such Equipment performed in accordance with the Specifications.
9.2 Unless otherwise agreed to by the Parties, for Equipment Orders
Final Acceptance shall be deemed to have occurred on the Commercial
Service Date for such Equipment.
9.3 Final Acceptance of the Equipment shall be final and shall relieve
Seller of all further responsibility relative to the Equipment
except as related to fraud, gross negligence, and
10
any other obligations of this Agreement which specifically survive
Final Acceptance, including, without limitation, Article 7.
Article 10. Agency
Neither Buyer nor any person or business organization is authorized
to make any warranty or assume any obligation or liability on behalf
of Seller in connection with the sale or use of the Equipment.
Article 11. Excusable Delays
11.1 Neither Party shall be liable for delays or any failure to perform
under this Agreement due to unforeseen circumstances or causes
beyond its reasonable control, including, but not limited to, acts
of God; war (including civil war); riots, embargoes, acts (whether
sovereign or contractual) of civil or military authorities; acts of
any government, fires, floods, explosions, the elements, epidemics,
quarantine restrictions, strikes or lockouts which neither Seller
and its affiliates nor Buyer and its affiliates have any control,
plant shutdowns, slowdowns, accidents, materials, delays of
suppliers or subcontractors or acts or omissions with respect to
matters for which the other Party is responsible (a "Force Majeure
Event"). Notwithstanding the foregoing, no strike with respect to
Seller or any affiliate of Seller shall constitute a Force Majeure
Event unless (i) such strike is a nationwide strike affecting
multiple manufacturers, as opposed to a strike affecting only Seller
or such Affiliate, and (ii) neither Seller nor any Affiliate of
Seller is able to perform the obligations that Seller is precluded
from performing for Buyer as a result of such strike.
11.2 In the event of an excusable delay as defined above, Parties shall
promptly notify one another in writing of such delay and an
equitable adjustment shall be made in the delivery and/or completion
schedules and any affected terms of this Agreement.
Article 12. Customs Clearance
12.1 Should import or export certification or licensing be denied or
voided for a particular Order for any reason beyond the reasonable
control of Seller, both Seller and Buyer agree that such Order shall
become voidable.
12.2 Seller agrees to be Importer of Record for shipments made to the
United States and shall pay directly to the proper United States
authority any United States import duties required by law to be paid
on Equipment delivered to the United States under this agreement.
11
Article 13. Patent Indemnity
13.1 Seller agrees that it will defend, at its own expense, all suits and
claims against Buyer for infringement or violation of any patent,
trademark, copyright, trade secret, or other tangible or intangible
property rights of any kind whatsoever, whether of the United States
or foreign (collectively, "Property Rights"), covering, or alleged
to cover, the Equipment or any component thereof, in the form
furnished or as subsequently modified, either by Seller or with
Seller's consent, and Seller agrees that it will pay all sums,
including, without limitation, attorneys' fees and other costs,
which, by final judgment or decree, or in settlement of any suit or
claim, may be assessed against Buyer on account of such infringement
or violation, provided that (a) Seller shall be given prompt written
notice of all claims of any such infringement or violation and of
any suits or claims brought or threatened against Buyer or Seller of
which Buyer has express knowledge, and Seller shall be given full
authority to assume control of the defense thereof through its own
counsel at its expense and to compromise or settle any suits or
claims so far as this may be done without prejudice to the right of
Buyer to continue the use, as contemplated, of the Equipment or
Software or any component thereof so furnished; and (b) Buyer shall
cooperate fully with Seller in the defense of such suit or claims
and provide Seller such assistance as Seller may reasonably require
in connection therewith, provided that Seller shall pay the actual
expenses of Buyer in providing such assistance. Buyer may in its
discretion and at its own expense participate directly or through
its own counsel in the defense of such suit or claims.
13.2 If any final judgment, all or any part of the Equipment or Software
or any component thereof is held to constitute any infringement or
violation of any other person's Property Rights and its use is
enjoined, or if in respect of any claim of infringement or violation
Seller deems it advisable to do so, Seller shall at its sole option
and cost take one or more of the following actions at no additional
cost to Buyer; (a) procure the right to continue the use of the same
without interruption for Buyer; (b) replace the same, without loss
of Buyer's use of same for more that twenty-four (24) hours, with
non-infringing Equipment or Software that meets the Specifications;
or (c) modify said Equipment or Software, without loss of Buyer's
use of same for more than twenty-four (24) hours, so as to be
non-infringing, provided that the Equipment or Software as modified
meets all of the Specifications. If Seller fails to perform its
obligations under this Section 13.2, Buyer may, at Seller's
reasonable expense, take any of the foregoing actions on behalf of
Seller or, if Buyer is unable to do so, Buyer may, at its option,
return to Seller freight collect all Equipment and Software
delivered, in which event Seller shall refund to Buyer all amounts
paid to it under this Agreement.
13.3 Seller's indemnity under this Article 13 shall not apply to any
infringement caused by (i) Buyer's material modification of the
Equipment and any infringement caused solely by Buyer's use of the
Equipment other than in accordance with the Specifications and the
purposes contemplated by this Agreement, except as expressly
authorized or permitted by Seller, or (ii) infringement arising out
of the use of Equipment or Software in combination or conjunction
with any item not supplied by Seller, and with respect to which
Seller did not have reason to know such item would be used in
combination with such Equipment or Software.
12
Article 14. Limitation of Liability and Indemnification
14.1 (a) Seller agrees to indemnify and hold Buyer harmless from and
against all losses, claims, demands, damages (to person or
property), and causes of action (including reasonable legal fees)
resulting from the intentional or negligent acts or omissions, or
strict liability, of Seller, its officers, agents, employees or
subcontractors.
(b) Buyer agrees to indemnify and hold Seller harmless from and
against all losses, claims, demands, damages (to person or
property), and causes of action (including reasonable legal fees)
resulting from the intentional or negligent acts or omissions or
strict liability, of Buyer, its officers, agents, employees or
subcontractors.
(c) If Buyer and Seller jointly cause such losses, claims, demands,
damages, or causes of action, the parties shall share the liability
in proportion to their respective degree of casual responsibility.
14.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, EXCEPT AS TO BUYER'S BREACH OF ITS OBLIGATIONS UNDER
ARTICLE 26 OR BUYER'S OR SELLER'S BREACH OF THEIR RESPECTIVE
OBLIGATIONS UNDER ARTICLE 16, IN NO EVENT, WHETHER AS A RESULT OF
BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO
NEGLIGENCE OR INFRINGEMENT), SHALL SELLER OR BUYER BE LIABLE UNDER
THIS AGREEMENT FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY
NATURE WHATSOEVER, INCLUDING LOST PROFITS OF ANY OTHER PARTY HERETO,
BEFORE OR AFTER ACCEPTANCE.
Article 15. Notices
Any notices hereunder by one party to the other party shall be given
in writing by personal delivery or posted by certified mail with
proper postage, return receipt requested, to the parties at the
following addresses:
If to Seller, to:
NEC America, Inc.
Radio Communications Systems Division
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
(000) 000-0000
13
If to Buyer, to:
PathNet, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
(000) 000-0000
Article 16. Proprietary Information
16.1 Should proprietary information of either Buyer or Seller be required
by the other in the performance of this Agreement, the party
receiving such proprietary information ("Recipient" hereafter)
hereby agrees to receive and maintain same in confidence and to take
such precautions as may be reasonably necessary to protect same from
disclosure to others, or use by itself or others for any purpose
inconsistent with this Agreement without the prior written consent
of the other party. Precautions taken shall be deemed reasonable if
at least equivalent to Recipient's precautions with respect to its
own proprietary information. Proprietary information shall mean
technical or business information or data conveyed in written,
graphic or other permanent tangible form identified as being
proprietary or, in the case of oral conveyances, any such
information promptly reduced to some permanent tangible form. The
Recipient's obligations hereunder shall in any event cease entirely
five (5) years from the termination or expiration of this Agreement.
16.2 The foregoing confidentiality restrictions, however, shall not
extend to any part of the proprietary information which:
(a) was already known to Recipient at the time of disclosure under
this Agreement as can be established by written documentation;
(b) was known or was generally available to the public at the time
of disclosure hereunder;
(c) becomes known or generally available to the public (other than
by act of Recipient) subsequent to its disclosure hereunder;
(d) is disclosed or made available in writing to Recipient by a
third party having a bona fide right to do so;
(e) is independently developed by Recipient without the use of the
proprietary information as can be established by written
documentation; or
(f) is required by law to be released.
14
Article 17. Governing Law
Except for laws relating to the Conflict of Laws, this Agreement,
its formation, construction and interpretation shall be governed by
the laws of the State of New York.
Article 18. Waivers
No failure of either party to exercise any power given to it
hereunder or to insist upon strict compliance by the other with any
obligation or provisions hereunder, and no custom or practice of the
parties at variance with the terms hereunder shall constitute a
waiver of the right to demand exact compliance with the terms
hereof. Waiver by a non-defaulting party of any right arising from a
default of the other party shall not effect or impair the rights of
the non-defaulting party with respect to any subsequent default by
the other party of the same or of a different nature.
Article 19. Design Changes
19.1 Seller may from time to time change or alter the design of the
Equipment, provided however, that no change or alteration shall be
made which deviates from the Specifications as detailed in Appendix
B unless consented to by Buyer, which consent shall not be
unreasonably withheld.
19.2 Notwithstanding Paragraph 19.1 above, Seller shall have the right,
with the prior written consent of Buyer, not to be unreasonably
withheld, to change or alter the design of or Specifications for the
Equipment in order to comply with the laws or regulations of any
United States government or agency.
19.3 Buyer may from time to time request in writing that Seller alter the
design of or Specifications for Equipment and Software. Seller shall
reply to Buyer's request within a mutually agreeable time.
Article 20. Availability of Equipment
20.1 Until ten years from the date of expiration of the initial term of
the Agreement, Seller shall make available for sale to Buyer, at
Seller's then current prices, the Equipment and Software to enable
Buyer to expand and repair its microwave radio network. Such
Equipment and Software shall provide equivalent functionality for
and shall be compatible with as to form and fit, and without the
requirement of significant modifications to, such microwave radio
network.
20.2 Seller may at any time cease production or purchase, as the case may
be, of any Equipment (or parts thereof) or Software so long as
Seller maintains a sufficient inventory of Equipment (or parts
thereof) and Software to meet its obligations pursuant to Section
20.1 above. In the event that such discontinuance of production or
purchase is in anticipation of migration to new generation Equipment
(or parts thereof) or Software which is not compatible with that
purchased by Buyer hereunder, Seller shall notify Buyer of its
intent to discontinue production or purchase, as the case may be,
specifying
15
the approximate number of such items of Equipment (or parts thereof)
or Software Seller then has in inventory, sufficiently in advance of
the final production run or purchase to allow Buyer to purchase any
additional items of Equipment (or parts thereof) or Software or
other parts it may desire for inclusion in said final production run
or purchase.
20.3 Seller shall, upon Buyer's written request, deliver to Buyer such
drawings, specifications, special tooling and information as may be
necessary to manufacture or cause to be manufactured or procured any
items of Equipment (or parts thereof) or Software as to which Seller
has notified Buyer of cessation of manufacture or purchase pursuant
to Section 20.2 above, together with a worldwide, nonexelusive,
royalty-free license to make, use or have made for Buyer's intended
use, any such items of Equipment (or parts thereof or Software to
the extent Seller is able to grant such a license.
Article 21. Compliance with Applicable Law and Regulations
21.1 Seller represents that all items of Equipment provided under this
Agreement comply with applicable laws and regulations of the United
States, including, but not limited to, The Communications Act of
1934, as amended, and the Rules and Regulations of the Federal
Communications Commission ("FCC").
21.2 It shall be the responsibility of Buyer to obtain any and all
necessary licenses and permits including, but not limited to, FCC
licenses and approvals of waivers for the installation and operation
of the Equipment and Software at the site at which it is to be
installed or for any resale of the Equipment by Buyer. Buyer's
failure to obtain necessary licenses and/or permits shall not
relieve Buyer of its obligation for accepting equipment deliverable
hereunder, or paying for same.
21.3 Seller agrees to provide reasonable assistance to Buyer in obtaining
necessary FCC licenses and permits to operate the Equipment and
Software. Such assistance shall include providing the technical
information related to the Equipment and Software necessary to file
for such licenses or permits. Such assistance shall in no way imply
an obligation on the part of the Seller to file for such licenses or
permits on behalf of the Buyer.
Article 22. Trademark
22.1 Except as provided for in 22.2 below, all equipment furnished in
performance of this Agreement shall be marked in accordance with
Seller's then current standard marking policy.
22.2 Seller shall, upon mutual agreement of the parties, xxxx with Buyers
trademark certain pieces of the Equipment as agreed upon provided
Buyer agrees to:
a) Provide suitable samples;
16
b) Indemnify Seller from any claims which are made against it as
a result of having followed Buyer's instructions in this
regard; and
c) Pay the reasonable cost of such markings.
Article 23. Assignments
23.1 Except as may be expressly authorized elsewhere herein, this
Agreement and the rights and duties granted hereunder may be sold,
assigned or transferred by Buyer or any Buyer Company in any manner
without the prior written consent of Seller; provided, that Seller
shall remain liable for all obligations hereunder. Either Party
shall have the right to subcontract work hereunder in the normal
course of business without obtaining the other's written consent,
but such subcontracting shall not relieve that Party of any
obligation or responsibilities under this Agreement.
23.2 Buyer shall have the right to lease or license the use of the
Equipment and Software, or any component thereof, to any other
entity on a time-sharing or other basis.
Article 24. Headings
The various headings in this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this
Agreement or any Article or provision hereof. References in this
Agreement to any Article are to such Articles of this Agreements.
Article 25. Severability
If any provision of this Agreement or any portion or provision
hereof applicable to any particular situation or circumstance is
held invalid, the remainder of this Agreement or the remainder of
such provisions (as the case may be), and the application thereof to
other situations or circumstances shall not be affected thereby.
Article 26. Software License and Rights in Data
26.1 Except as limited by the terms of this Agreement, Seller grants
Buyer a perpetual, royalty-free, Right-to-Use ("RTU") license for
the Software delivered to Buyer under this Agreement for the sole
purpose of operating the Equipment as herein contemplated.
26.2 Buyer acknowledges that the Software is the property and
confidential proprietary information of Seller. Buyer may not sell,
assign, transfer, license, or otherwise make available the Software
to any third party, except as provided herein. In no event may
Buyer, other than as set forth in Sections 26.3 and 23.2 hereof,
sell, assign, transfer, license, or otherwise make available any of
the Software to any person not purchasing the Equipment. Except as
expressly permitted in this Article 26 and in Article 23 hereof,
Buyer agrees not to disclose or cause to be disclosed the Software
to any person other than employees of Buyer on a need-to-know basis
and who are duly authorized to use the Software unless such
disclosure is made subject to restrictions on further disclosure.
17
26.3 Buyer may transfer or otherwise sublicense this RTU Software license
to any subsequent Buyers of individual items of Equipment from Buyer
without further approval of Seller provided the subsequent Buyers
are not direct competitors of Seller and further provided the
subsequent Buyers agree in writing delivered to Seller to assume
Buyer's obligations set forth in this Agreement relating to the
Software.
26.4 Software Updates shall be provided by Seller to Buyer on an RTU
license basis at no cost to Buyer. Software Enhancements shall be
provided by Seller to Buyer on an RTU license basis at Seller's then
current price therefore (subject to Section 3.2) and including any
discounts then in effect and which would otherwise be consistent
with the discounts received by Buyer pursuant to this Agreement.
26.5 Seller represents and warrants that the Software delivered to Buyer
with any Equipment is all of the Software reasonable necessary to
use, operate or maintain the Equipment.
26.6 The parties agree that Seller may enforce provisions of this Article
26 regarding restrictions on transfer and confidentiality of the
Software by an action for injunctive relief or other equitable
remedies.
26.7 Upon reasonable request of Buyer, Seller shall submit to Buyer the
most recent documentation in the case of any Software purchased by
Buyer. It is understood that such possession shall not constitute a
transfer of ownership or ownership rights in such documentation.
Upon a reasonable showing by Buyer that additional Software
documentation is required by Buyer for its full understanding of the
operation of the Equipment purchased hereunder, Seller shall provide
such additional documentation.
26.8 In addition to the rights and obligations described in this Article
26, Seller agrees that if the Software or any part thereof is lost
or damaged (other than due to the fault of Buyer) before being Final
Acceptance, Seller shall replace it at no additional cost to Buyer.
Any such Software lost or damaged after Final Acceptance or due to
the fault of Buyer, shall be replaced by Seller at a charge to Buyer
equal to Seller's actual cost for gathering such Software.
26.9 If Seller has not provided two (2) archival copies of the Software,
Buyer may make and maintain such archival copies of the Software for
so long as such Software is relevant to Buyer's operations.
Article 27. Product Support, Training and Other Support
Product Support and Training shall be performed as stated in the
Product Line Support Policy in Appendix A. In addition to this
Appendix, Seller shall provides Sales Engineering support to Buyer
on an "as needed" basis at no cost during the term of this
Agreement. Furthermore, training at Seller's Herndon, Virginia
facility for up to five (5) students for each microwave radio system
sold is available to Buyer at no cost. In the event that a system is
at a size where additional students may be required, Seller and
Buyer will mutually agree if additional free training is required
18
Article 28. Arbitration
28.1 If there is a disagreement which, under the terms of this Agreement
shall be resolved in accordance with this Section 28.1, the parties
will attempt to negotiate a solution within fourteen (14) days of
notification of such disagreement. If no solution can be reached,
the parties shall select a third party engineer ("Third Party
Engineer") (whose fees and expenses will be shared equally by Buyer
and Seller) who shall, after conducting such examination or testing
as he/she deems necessary within fourteen (14) days, render a
decision in the matter. If the parties are unable to agree on the
selection of the Third Party Engineer, the Third Party Engineer will
be selected by the then President of the Institute of Electrical and
Electronic Engineers. The Third Party Engineer's decision shall be
final and binding and neither party shall appeal or otherwise
contest it. Once a Third Party Engineer is selected for resolving a
dispute hereunder, he/she shall be selected for the resolution of
any further disputes hereunder unless otherwise agreed to by both
parties or unless the Third Party Engineer refuses to continue to
serve in that function.
28.2 Any controversy or claim arising out of or relating to this
Agreement for the breach hereof which cannot be settled by the
parties, and except for disputes to be settled by the Third Party
Engineer pursuant to Section 28.1, shall be settled by arbitration
to be held in New York City in accordance with the commercial Rules
of the American Arbitration Association, by three (3) arbitrators
appointed in accordance with the said Rules.
28.3 The award of any arbitration shall be final, conclusive and binding
on the parties hereto.
28.4 The arbitrators may award any legal or equitable remedy. The
arbitration award may include an award of attorney's fees, in the
amount of such fees, to the prevailing party. Judgment upon any
arbitration award may be entered and enforced in any court of
competent jurisdiction.
28.5 Either party to an arbitration hereunder may bring an action for
injunctive relief against the other party if such action is
necessary to preserve jurisdiction of the arbitrators or to maintain
status quo pending the arbitrators' decision. Any such action called
pursuant to this Section 28.5 shall be discontinued upon assumption
of jurisdiction by the arbitrators and their opportunity to consider
the request for equitable relief pending final decision in the
arbitration.
Article 29. Entirety of Agreement
This Agreement consists only of this document upon which the Parties
have affixed their signatures and those documents specifically
incorporated herein by reference provided that if and to the extent
the terms and conditions of Appendix A or B attached hereto in any
way contradict the terms and conditions of this Agreement, the terms
and conditions of this Agreement shall supersede the terms and
conditions of Appendix A and B attached hereto. This Agreement as so
constituted is the entire Agreement between the parties with respect
to the subject matter hereof and supersedes all other previous
statements,
19
communications or agreements, whether oral or written, including
press releases, advertising and sales literature. No modification,
alteration or waiver of any provision hereof shall be binding upon
the parties unless evidenced in writing and signed by both parties.
No oral quotation or statement shall be binding on Seller.
IN WITNESS WHEREOF, the Parties hereto, each by a duly authorized officer, have
caused this Agreement to be executed as of the date first written above.
NEC AMERICA, INC. PATHNET, INC.
By: Xxxxxxx Xxxxxxx By: Xxxxx Xxxxxxxxx
--------------------------------- ---------------------------------
Title: Assistant General Manager Title: Chairman
------------------------------ ------------------------------
Radio Communications Sys. Div.
Date: August 8, 1997 Date: 8/12/97
------------------------------- -------------------------------
Sign: /s/ Xxxxxxx Xxxxxxx Sign: /s/ Xxxxx Xxxxxxxxx
------------------------------- -------------------------------
20
Amendment #1 to Master Agreement
Dated 8 August, 1997, between PathNet, Inc.
And NEC America, Inc.
Except as expressed herein, the terms and conditions of the Master Agreement
remain in full force and effect:
Article 6. Payment Terms
Add as paragraph 6.3: (a) For Equipment purchases made under the
PathNet, Inc., Credit Facility, payment terms for the initial base
system or initial installation system, in the event Buyer initially
builds beyond the initial base system, shall be: sixty percent (60%)
of invoice amount net thirty (30) days from Seller's tender of
delivery of the Equipment to the destination(s) specified by Buyer;
remaining balance due one hundred-eighty (180) days after original
invoice date. These terms shall be in effect until March 31, 1999,
and apply only to the purchase of the initial base system or the
initial installation system and are not applicable to channel
additions and/or overbuild systems.
b) For equipment purchases made under the PathNet, Inc., Credit
Facility, payment terms for overbuild systems shall be: one hundred
percent (100%) of invoice amount net thirty (30) days from seller's
tender of delivery of the Equipment to the destination(s) specified
by Buyer.
Article 8. Title, Delivery and Shipment
Add as paragraph 8.7: (a) Except as provided in Section 8.7(b), as a
condition precedent to shipment of Equipment financed under the
PathNet, Inc., Credit Facility, that being for the purpose of an
overbuild system, Seller shall be provided fully executed Capacity
Agreements, capacity exchange agreements, or purchase orders for
capacity with capacity users relevant to the system to which such
Equipment relates not less than seventy-five (75) calendar days
prior to the draw down of the associated loan. In the event Buyer
fails to provide such documentation, Seller has the right to hold
Equipment shipment until such time as this condition is satisfied.
(b) In the event PathNet requires an overbuild system as part of the
initial installation system, PathNet shall not be required to
demonstrate executed Capacity Agreements, purchase exchange
agreements, or purchase orders for capacity with capacity users
prior to the draw down of the associated loan.
[Signatures on the following page]
NEC America, Inc.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title: AGM
------------------------------
Date: 11/09/97
-------------------------------
PathNet, Inc.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Title: Chairman
------------------------------
Date: 11/5/97
-------------------------------
Amendment #2 to Master Agreement
Dated 8 August, 1997, between PathNet, Inc.
and NEC America, Inc.
Except as expressed herein, the terms and conditions of the Master Agreement
remain in full force and effect:
Article 26. Software License and Rights in Data
Add as paragraph 26.10:
(a) Seller hereby grants to Buyer the right to sublicense the RTU
Software and Software Enhancements required to upgrade and
maintain the Equipment, including the local craft terminal
software, pursuant to a sublicense agreement substantially in
the form attached hereto, to any third party provider, agent
or subcontractor of Buyer for the sole purpose of performing
services on, monitoring, maintaining or operating the
Equipment. Notwithstanding anything to the contrary contained
herein, Buyer shall pay a one-time royalty per Incumbent
System as set forth in Appendix A (for the purposes herein
"Incumbent System" shall be defined as the digital microwave
network under the control of an incumbent with which Buyer has
entered into an agreement) for the perpetual right to
sublicense the Software to such third party provider, agent or
subcontractor of Buyer for the sole purpose of performing
services on, monitoring, maintaining or operating the
Equipment on any such Incumbent System.
(b) Seller hereby represents and warrants that it has sufficient
rights (including, without limitation proprietary rights),
title and interest in the Software to grant to Buyer the right
to sublicense such Software and to enter into this Agreement.
Appendix A. PATHNET 6/11 GHZ SONET COMPATIBLE DIGITAL MICROWAVE RADIO
Add as new Section 3.2.2 (on page 18)
Item No. Description Basic Unit
Price
3.2.2 2000 SERIES LCT SOFTWARE (without computer) 1 $8,400
[Signatures on the following page]
NEC America, Inc.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title: AGM
------------------------------
Date: 3/28/98
-------------------------------
PathNet, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: CEO
------------------------------
Date: 4/2/98
-------------------------------
