*** Portions of this exhibit are considered confidential by the registrant and
have been omitted from this filing and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
FIRST AMENDMENT TO
GN RESOUND NORTH AMERICA SALES AGREEMENT
First Amendment (this "AMENDMENT") dated as of November 19, 2001 to the GN
ReSound North America Sales Agreement (the "AGREEMENT") dated as of May 31, 0000
xxxxxxx XX XxXxxxx Xxxxx Xxxxxxx Corporation ("GN") and Sonus-USA, Inc.,
Sonus-Canada Ltd. and, for certain limited purposes described therein, Sonus
Corp. (collectively, "SONUS").
WITNESSETH:
WHEREAS, GN and Sonus desire to amend the Agreement as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined in this
Amendment have the meanings set forth in the Agreement.
SECTION 2. Amendment to Exhibit C to the Agreement. (a) The second
sentence of Section 4(a) of Exhibit C to the Agreement following the initial ":"
contained in such Section 4(a) is hereby amended in its entirety to read as
follows:
Of such $*** rebate, $*** (the "Repayment Rebate") shall be payable
quarterly (as described below) subject to the following: (i) during
the first two years following the Effective Date, the Repayment
Rebate will first be applied by Sonus USA toward Current Interest as
defined and described in Section 2.05(a) of the Credit Agreement,
and Sonus USA shall be entitled to keep any remaining portion of
such rebate (subject to Section 4(b) of this Exhibit C); and (ii)
each year after the first two years following the Effective Date,
the Repayment Rebate will first be applied by Sonus USA to repay any
Current Interest and then will be applied by Sonus USA to repay any
amounts described in Section 2.05(a)(ii) of the Credit Agreement,
and Sonus USA shall be entitled to keep any remaining portion of
such rebate (subject to Section 4(b) of this Exhibit C).
(b) Section 4(b) of Exhibit C to the Agreement is hereby amended in its
entirety to read as follows:
(ii) Notwithstanding Section 4(a) of this Exhibit C, and except as
otherwise provided under Section 4(b)(ii) of this Exhibit C, in the
event that any Sonus Entity has not remitted to the Company any
amount for which it has been invoiced (an "INVOICED AMOUNT") by 90
days after the date of such invoice, the Company shall be
***Confidential portions omitted pursuant to a request for confidential
treatment
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allowed until the expiration of this Agreement to apply any Rebates
or any portion thereof toward such Invoiced Amount, provided that
the Company shall not so apply any portion of any Repayment Rebate
until Sonus USA has applied such Repayment Rebate in accordance with
Section 4(a) of this Exhibit C.
(ii) Notwithstanding Section 4(a) of this Exhibit C, in the event that
(x) between the date hereof and April 30, 2002 any Sonus Entity has
not remitted to the Company any Invoiced Amount by 90 days after the
date of the related invoice, or (y) between May 1, 2002 and November
30, 2002 any Sonus Entity has not remitted to the Company any
Invoiced Amount by 75 days after the date of the related invoice,
the Company shall be allowed until the expiration of this Agreement
to apply any Rebates or any portion thereof toward such Invoiced
Amount, provided that the Company shall not so apply any portion of
any Repayment Rebate until Sonus USA has applied such Repayment
Rebate in accordance with Section 4(a) of this Exhibit C. Between
the date hereof and November 30, 2002, in lieu of any service or
interest charges relating to such Invoiced Amount as provided for
under the GN ReSound Policies, any such Invoiced Amount shall bear
interest for each day from and including the date 90 days (in the
case of clause (x)) or 75 days (in the case of clause (y)) after the
date of the relevant invoice to and including the date on which
payment of such portion plus all accrued interest thereon is paid in
full (by cash or by application of Rebates), at a rate per annum
equal to six percent (6%). Commencing on December 1, 2002, the
service and interest charges relating to all Invoiced Amounts shall
be as provided for under the GN ReSound Policies, including without
limitation the 1.5% monthly service charge on past due charges set
forth in the section titled "Payment" in the GN ReSound Policies.
(iii) Except as provided for in Section 4(b)(ii) of this Exhibit C, this
Section 4(b) shall not be construed as altering or amending in any
way the terms and conditions of the GN ReSound Policies.
SECTION 3. Effectiveness. This Amendment shall be effective as soon as
counterparts hereof have been executed and delivered by GN and Sonus.
SECTION 4. Effect of Amendment. Except as amended hereby, the Agreement
shall remain unchanged and effective as of May 31, 2001. The Agreement as
amended hereby shall continue in full force and effect.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York (other than its
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rules of conflicts of laws to the extent that the application of the laws of
another jurisdiction would be required thereby).
SECTION 6. Counterparts. This Amendment may be executed in several
counterparts with the same effect as if the parties executing the several
counterparts had all executed one counterpart.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
GN RESOUND NORTH AMERICA
CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Exec VP & Group President
SONUS-USA, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name:Xxxx Xxxxxxxx
Title: Chief Financial Officer
SONUS-CANADA LTD.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
SONUS CORP.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
-4-
