Exhibit 10.45
Translation
AMENDMENT 1 TO:
Agreement For The Purchase Of Telular Fixed Telephony Digital Cellular
Telephones, dated September 13, 2000 (the Agreement)
FIRST CLAUSE. PURPOSE
Is hereby amended to add, in the first paragraph thereof, after "September 13,
2000" the following phrase "and Purchase Order No. 7400000192, dated June 14,
2002, which includes two (2) products: [*] SX4D TDMA-800 0.6 Watt Voice
Deskphones and [*] 13 xX Xxxx Antennas (the "2002 Purchase")."
Is hereby further amended to acknowledge changes to the SX4D TDMA-800 0.6 Watt
Voice Deskphone as described in the revised Technical Description attached in
Exhibit 1. It is understood and agreed that all such changes were formally
requested by Radiomovil DIPSA S.A. de C.V. "DIPSA" and that such changes do not
affect in any way the functionality and performance required by Radiomovil DIPSA
S.A. de C.V. "DIPSA" for the SX4D TDMA-800 0.6 Watt Voice Deskphone units.
SECOND CLAUSE. PRICES
Is hereby amended to add, at the end of the first paragraph, the following: "The
unit price agreed for the 2002 Purchase of fixed digital cellular telephones is
[*] and the unit price agreed to for 13 xX Xxxx Antennas is [*] by MANUFACTURER
to SUPPLIER, as stated in a PO from SUPPLIER to MANUFACTURER, FOB Brownsville,
Texas, U.S.A."
Is hereby further amended to add, at the end of the second paragraph, the
following: "The unit price agreed for the 2002 Purchase of fixed digital
cellular telephones is [*] and the unit price agreed to for 13 xX Xxxx Antennas
is [*] by SUPPLIER to DIPSA, as stated in PO No.
7400000192 placed in the DIPSA warehouses, plus value added tax. The prices are
itemized in the purchase order attached in Exhibit 3, which forms an integral
part of the Agreement."
Is hereby further amended in the fourth paragraph by adding at the end of the
first sentence: "and the 2002 Purchase of [*] units and [*] 13dB Yagi Antennas",
and in the second sentence replacing "fifteen (15) months" with "twenty-seven
(27) months" to extend Radiomovil DIPSA S.A. de C.V. DIPSA's opportunity to
purchase units hereunder."
THIRD CLAUSE. FORM AND TERMS OF PAYMENT
The second paragraph is hereby amended to add: "For the 2002 Purchase, SUPPLIER
shall pay MANUFACTURER within 30 days of delivery to Brownsville, Texas, USA.
MANUFACTURER will provide SUPPLIER a 2% discount (or USD[*]) for payments made
within seven (7) days of delivery to Brownsville, Texas, USA."
The third paragraph is hereby amended to add: "For the 2002 Purchase, DIPSA
shall pay SUPPLIER within 30 days of delivery of the equipment to each of the
DIPSA warehouses, upon delivery of the invoices and the applicable supporting
documentation.
FOURTH CLAUSE: FORMS AND CONDITIONS OF DELIVERY
The chart in the second paragraph is hereby amended to add: "The delivery times
for the 2002 Purchase are specified in PO No. 7400000192 with the following
delivery schedule:
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CELLULAR UNITS ANTENNA UNITS DELIVERY DATE
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[*] [*] August 31, 2002
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[*] [*] September 2002
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[*] [*] October 2002
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[*] [*] November 2002
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[*] [*] December 2002
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SIXTH CLAUSE. WARRANTIES
For the 2002 purchase, the second sentence of the first paragraph is hereby
amended, where it says "or fifteen (15) months from the date of shipment,
whichever is less" by replacing it with the following text: "or up to
twenty-four (24) months from the date of shipment, as the maximum period for
warranty claims by Radiomovil DIPSA S.A. de C.V. DIPSA.
For the 2002 purchase, the second paragraph describing the Section "Replacement
with New Units", where it says "fifteen (15) days from the time received by
DIPSA and with less than 60 minutes of use (internal counter) shall be exchanged
on an express basis" is hereby amended by replacing it with the following:
"fifteen (15) days from installation or invoice to DIPSA's customer cellular
phone user and with less than sixty (60) minutes of use (internal counter),
shall be exchanged on an express basis." At the end of the second paragraph, the
following text shall be added: "In order for DIPSA to obtain replacement with
new equipment, DIPSA must verify, with the original of the xxxx of sale to the
end consumer user, that the cellular phone has fifteen (15) or fewer days from
installation or invoice."
For the 2002 purchase, at the end of the Section "Replacement with New Units",
the following title is added: "CONDITIONS FOR ENFORCING THE WARRANTY FOR
REPLACEMENT OF NEW UNITS", and the following text is added:
"The conditions for enforcing the warranty for defects out of the box, or
replacement warranty, shall be the conditions verifying that the unit has not
been used for a purpose other than that for which it was designed (residential
telephone), that there exists no evidence of abuse or misuse by the end user or
customer, that there be no physical damage caused by striking and/or falling and
that the defect was not caused by damage due to water, liquids or any kind of
chemicals, that damage was not due to electrical discharges in AC input or by
atmospheric electrical discharges (lightning). In the event that any of the
preceding conditions are verified by the Manufacturer or its Representative, the
Manufacturer's warranty and penalties described in the Sixth Clause hereof,
shall be completely null and void. In addition, certain circumstances are
described
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expressly, but not without limitation, that cancel the warranty set forth in
this agreement: antenna breakage, screen breakage, breakage of retractile and/or
feeder cables; breakage of plastic cover, keypad and/or earpiece; damage due to
water, steam, moisture or any other chemical and/or liquid agent; unit has
incomplete external and/or internal parts; unit is incomplete or does not
include Manufacturer's original parts; unit is worked on or altered by service
centers not authorized by the Manufacturer."
For the 2002 purchase, at the end of the section "Equipment Repair", the
following title is added: "CONDITIONS FOR ENFORCING THE WARRANTY FOR EQUIPMENT
REPAIR", and the following text is added:
"The conditions for enforcing the equipment repair warranty are as follows:
- The unit shows no evidence of moisture or spilled liquids
- There exists no abuse of the unit and no damage by striking and/or
falling
- It has not been damaged by electrical discharges
- The unit has not been altered or worked on by personnel not authorized
by the Manufacturer"
For the 2002 purchase, at the end of the preceding text and before the Seventh
Clause, the following section is added: "PENALTIES FOR NON-PERFORMANCE OF
WARRANTY" with the following text:
"In the event that the damaged equipment submitted to the Manufacturer or its
Representative are not repaired within ten (10) business days from the date on
which the Manufacturer or its Representative receives the equipment, the
Manufacturer or its Representative shall have the option, within said ten (10)
business days, to replace the damaged unit with a like-new properly functioning
reconstructed unit. If the Manufacturer or its Representative does not return,
after ten (10) business days (except for holidays recognized as such by the
Manufacturer and DIPSA, in which case an extension of ten (10) days shall be
agreed) the unit submitted for repair or the above-mentioned replacement unit,
and the manufacturer agrees that it has not complied with
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these conditions, DIPSA shall have the option to deduct from its accounts
payable to the Supplier, [*], plus 15% for Value Added Tax, for a total of [*]
for each unit not returned, and in that case, the Manufacturer shall pay to the
Supplier the amount of [*].
TENTH CLAUSE. OBLIGATIONS OF DIPSA
The obligation in the second paragraph is hereby amended by adding: "and accept
all [*]units and [*] 13 xX Xxxx Antennas for the 2002 Purchase."
TWELFTH CLAUSE. OBLIGATIONS OF THE MANUFACTURER
The obligation in the second paragraph is hereby amended by adding: "and
manufacture all [*] units and [*] 13 xX Xxxx Antennas for the 2002 Purchase"
SIXTEENTH CLAUSE. TERMINATION OF THE AGREEMENT
Paragraph A is hereby amended to add after "[*] contracted hereunder": "and the
[*] unit and [*] 13 xX Xxxx Antenna 2002 Purchase".
EXHIBIT 1
Exhibit 1 is hereby amended by adding the revised Technical Description document
that reflects the changes to the SX4D TDMA-800 0.6 Watt Voice Deskphone for the
2002 Purchase.
EXHIBIT 3
Exhibit 3 is hereby added to this agreement (Copy of Purchase Order No.
7400000192).
This Amendment 1 is read, signed and ratified in duplicate in Mexico, D.F., on
June 20, 2002, as the true expression of their will and does not contain any
provisions to the contrary, representing fraud, injury or bad faith with respect
to the parties.
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For RADIOMOVIL DIPSA, S.A. DE C.V.: For BRIGHTSTAR DE MEXICO, S.A. DE C.V.:
RADIOMOVIL DIPSA, S.A. DE C.V. BRIGHTSTAR DE MEXICO, S.A. DE C.V.
Xxxx Xxxxxxx No. 000 Xx. Xxxxxxxxx X(xxxxxx)00
Col. Anahuac, C.P. 11320 Col. San Xxxxx Xxxxx X.X. 00000
Xxxxxx, D.F. Tlalnepantla Edo. De Mexico
[signed] [signed]
XXXX XXXXXXX XXXXXX XXXXX XXXXXXXXX XXXXX XXXXXXXX
Assistant Purchasing Director Legal Representative
For TELULAR CORPORATION
(MANUFACTURER):
TELULAR CORPORATION
000 X. Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000 X.X.X.
[Signed]
XXXXXXX X. XXXXXXX
President and Chief Executive Officer
WITNESSES
[signed] [signed]
XXXXXX XXXXX XXXXXX XXXXX XXXXXXX XXXXXXXXX
Purchase Manager Vice President of Sales, CALA
RADIOMOVIL DIPSA, S.A. DE C.V. TELULAR CORPORATION
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EXHIBIT 3
DIPSA Purchase Order to SUPPLIER dated June 14, 2002
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Translation
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TELCEL BRIGHTSTAR DE MEXICO, S.A. DE C.V. **BY SUPPLIER ** ** ACCORDING TO CONTRACT **
Digital PCS
Xx. Xxxxxxxxx #00 **AT LOCAL WAREHOUSES OF
Xxxx Xxxxxxx No. 366 San Xxxxx Xxxxx TELCEL ACCORDING PAYABLE 30 DAYS WITHOUT
Col. Anahuac, 11320 Tlalnepantla TO PURCHASE ORDER** INTEREST
Mexico, D.F. MX See purchase order details
54170 See purchase order details
Tel. 0000000000 FROM RECEIPT OF DOCUMENTS
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7400000192 00 00 0000 WAREHOUSE: GOODS TO BE
DELIVERED TO
(OPTIONAL INVOICE TO:)
See purchase order details
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6.14.2002 6.30.2002 TCAC
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6.14.2002 1 OF 3 PLEASE CITE THIS NUMBER ON ALL
CORRESPONDENCE, DOCUMENTS AND
PACKING
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00010 /7001987 TELULAR DIGITAL PHONECELL SX4D 00 00 0000 [*] UNIT [*] [*]
TLE00001
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00020 /50000131 YAGI ANTENNA JRGR-10-900 13 dB TMC TFR 00 00 0000 [*] UNIT [*] [*]
TPRANTJBSR10900
Subtotal [*]
VAT [*]
Total USD [*]
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[*]U.S. DOLLARS AND [*] CENTS
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[signed]
XXXXXXXXX XXXXXX XXXXX XXXX XXXXXXX XXXXXX
Purchasing Manager Assistant Purchasing Director
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TELULAR MODEL PHONECELL SX4D TDMA-800 DESKPHONE
DESCRIPTION OF THE LISTED EQUIPMENT IS FOUND IN:
THE AGREEMENT SIGNED BY RADIOMOVIL DIPSA S.A. DE C.V., BRIGHTSTAR DE MEXICO AND
TELULAR CORPORATION ON SEPTEMBER 13, 2000 AND THE FIRST AMENDMENT TO THE
AGREEMENT FOR THE PURCHASE OF FIXED TELEPHONY DIGITAL CELLULAR TELEPHONES
ENTERED INTO ON JUNE 20, 2002.
NOTE: THIS PURCHASE ORDER IS SUBJECT TO THE PROVISIONS OF THE AGREEMENT BETWEEN
RADIOMOVIL DIPSA S.A. DE C.V., BRIGHTSTAR DE MEXICO AND TELULAR CORPORATION ON
SEPTEMBER 13, 2000 AND THE FIRST AMENDMENT TO THE AGREEMENT FOR THE PURCHASE OF
FIXED TELEPHONY DIGITAL CELLULAR TELEPHONES ENTERED INTO ON JUNE 20, 2002.
** WARRANTY **
AGREEMENT BETWEEN RADIOMOVIL DIPSA S.A. DE C.V., BRIGHTSTAR DE MEXICO AND
TELULAR CORPORATION ON SEPTEMBER 13, 2000 AND THE FIRST AMENDMENT TO THE
AGREEMENT FOR THE PURCHASE OF FIXED TELEPHONY DIGITAL CELLULAR TELEPHONES
ENTERED INTO ON JUNE 20, 2002.
*** NOTES ***
**REQUESTING PARTY -FIXED SERVICES MANAGEMENT REGIONS 01 TO 09 / XXXXXX XXXXX /
XXXX XXXXXXX XXXXX **
** PAYMENT TERMS **
30 DAYS AGAINST DELIVERY OF EQUIPMENT TO WAREHOUSES OF RADIOMOVIL DIPSA AND
PRESENTATION OF INVOICE.
BASED ON TELCEL'S POLICY, SUPPLIER MUST INVOICE IN THE SAME CURRENCY AS THIS
PURCHASE ORDER.
** TIME OF DELIVERY **
SUPPLIER WILL MAKE DELIVERY ACCORDING TO THE FOLLOWING SCHEDULE:
CELLULAR UNITS ANTENNAS
[*] [*] UNITS AUGUST 2002
[*] [*] UNITS SEPTEMBER 2002
[*] [*] UNITS OCTOBER 2002
[*] [*] UNITS NOVEMBER 2002
[*] [*] UNITS DECEMBER 2002
TOTAL [*] [*] UNITS
UPON RECEIPT OF PURCHASE ORDER, SUPPLIER ACCEPTS ALL CONDITIONS SET FORTH IN THE
AGREEMENT.
DELIVERY SHALL BE FOR THE EXCLUSIVE ACCOUNT AND RESPONSIBILITY OF SUPPLIER UP TO
THE WAREHOUSES INDICATED BY RADIOMOVIL DIPSA S.A. DE C.V.
PURCHASE ORDER 7400000192, SUPPLIER MAY NOT PROVIDE OR MAKE ANY COLLECTION WITH
THIS PURCHASE ORDER
THIS PURCHASE ORDER SHALL BE FURNISHED BASED ON PARTIAL SHIPMENTS THAT
RADIOMOVIL DIPSA S.A. DE C.V. SHALL DELIVER TO SUPPLIER IN DUE COURSE.
THE TOTAL DELIVERY TIME STIPULATED IN THIS PURCHASE ORDER SHALL BE FROM THE DATE
OF RECEIPT OF SAID ORDER BY SUPPLIER. OTHERWISE PENALTIES ARE IMPOSED FROM SAID
DATE.
ALL EQUIPMENT AT THE TIME OF DELIVERY SHALL HAVE THE REQUIRED SEAL AND APPROVAL
OF RADIOMOVIL DIPSA S.A. DE C.V IF NOT, SAID EQUIPMENT WILL NOT BE ACCEPTED AT
THE WAREHOUSES OF RADIOMOVIL DIPSA, S.A. DE C.V.
ALL EQUIPMENT AT THE TIME OF DELIVERY SHALL HAVE THE NEW PACKING REQUIRED AND
APPROVED BY RADIOMOVIL DIPSA S.A. DE C.V. IF NOT, SAID EQUIPMENT WILL NOT BE
ACCEPTED AT THE WAREHOUSES OF RADIOMOVIL DIPSA, S.A. DE C.V.
** FINANCING **
A) SUPPLIER UNDERTAKES TO ESTABLISH, UNDER THE BEST TERMS FOR TELCEL, THE
FINANCING NECESSARY TO COVER ONE HUNDRED PERCENT (100%) OF THE PART PURCHASED,
FROM REPUTABLE INTERNATIONAL FINANCING SOURCES.
B) SUPPLIER UNDERTAKES TO HANDLE ON A TIMELY BASIS ALL RESPONSIBILITIES
ENTRUSTED TO IT TO OBTAIN FINANCING;
C) THE OPERATIVE SPECIFICATIONS AND FINANCING TERMS AGREED BETWEEN TELCEL AND
THE FINANCIAL INSTITUTION ARE DETERMINED SEPARATELY IN A "FINANCING AGREEMENT."
D) SUPPLIER MAY NOT INVOICE THE EQUIPMENT UNTIL THE CREDIT LINE IS AVAILABLE AT
THE TIME THIS PURCHASE ORDER IS AUTHORIZED, [illegible] ACCEPT THE 2% DISCOUNT
IN SUPPORT OF SUCH FINANCING, FOR WHICH IT WILL PREPARE THE CORRESPONDING
MODIFICATION.
E) SUPPLIER WILL ABSORB ANY FEES OR CREDIT INSURANCE CHARGES FOR THE FINANCING
BASED ON THE RATE IN EFFECT.
** PENALTIES **
AGREEMENT BETWEEN RADIOMOVIL DIPSA S.A. DE C.V., BRIGHTSTAR DE MEXICO AND
TELULAR CORPORATION ON SEPTEMBER 13, 2000 AND THE FIRST AMENDMENT TO THE
AGREEMENT FOR THE PURCHASE OF FIXED TELEPHONY DIGITAL CELLULAR TELEPHONES
ENTERED INTO ON JUNE 20, 2002.
** ANY NOTES AFTER THIS LINE ARE NULL AND VOID **
[signed]
XXXXXXXXX XXXXXX XXXXX XXXX XXXXXXX XXXXXX
Purchasing Manager Assistant Purchasing Director
