Exhibit 10.1.3
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Amendment #5 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 2. Scope of Contract
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2.2 Modify (a) to read, "Appendix A - Sellers Quotation,
DCQ98-M200554A, dated 9/18/98, excluding General Terms and
Conditions".
Article 3. Prices
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Delete "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" and modify first paragraph
to read, "Subject to Article 3.2, the pricing stated in
Appendix A hereto is valid for orders placed from the date
9/18/98 for the balance of the Master Agreement term, subject
to Article 3.5 below, as expressed in Article 5. Term and
Option, and is...."
3.5 Delete in its entirety Amendment #3 and replace in the Master
Agreement with the following, "At the end of calendar year
1999, the Parties agree to have a good faith negotiation to
reach mutually beneficial prices for the balance of the
Agreement term. In consideration of the prices stated in
Appendix A hereto, Buyer agrees to hold Seller as the primary
supplier of digital microwave equipment as listed in Appendix
A with a minimum share of purchase volume in U.S. dollars of
60% with Buyer having a two supplier relationship and 50% with
Buyer having a three supplier relationship.
Furthermore, Buyer agrees it shall purchase from Seller,
Equipment in a cumulative amount of no less than
$200,000,000.00 U.S. dollars by the end of calendar year 2002.
As part of this commitment, in good faith effort, Buyer will
procure no less than a quantity of 700 T/R's (digital
microwave terminals) each six month period beginning 9/18/98.
Buyer's failure to meet this T/R commitment level as set forth
herein shall result in the sole and exclusive remedy of Seller
as follows: Seller shall reserve the right to withdraw the
pricing levels set forth in this Agreement for subsequent
purchases of Equipment."
3.6 Modify to read, "The pricing set forth in Appendix A hereto is
applicable to any orders placed after 9/18/98."
Article 27. Product Support, Training and Other Support
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27.1 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 provide Sales Engineering support
to Buyer on an "as needed" basis at no cost during the term of
this Agreement.
27.2 Seller agrees to provide training on an agreed upon scheduled
basis to any new Buyer or Buyer Company engineering personnel
and Buyer operations personnel. Such training can be either at
Seller's facility in Herndon, VA or Buyer's facilities in
Washington, D.C. or Richardson, Texas. For training at Buyer
or Buyer's Company's facility, Buyer agrees to reimburse
Seller for the instructor's reasonable travel and living
expense only.
27.3 Seller agrees to provide Buyer: two hops of radio in
terminal-terminal arrangement configured as follows: 1X1,
frequency diversity/space diversity with switchover
processors. One hop would be installed in each of the Buyer
facilities in Washington, D.C. and Richardson, Texas.
27.4 In a good faith effort and to the extent reasonably feasible,
Seller to provide for Seller radio and multiplexer product -
including any enhancements or modifications thereto, (i)
detailed specification for the OS (Operation System) to NE
(Network Element) operations communications path. This will
include detailed specifications on how the network elements
may be accessed directly or indirectly by the OS and
identifying the protocols used for OS to NE operations and NE
to NE operations. Conformance statements to all relevant
protocols at the physical, data link, transport, session,
presentation and application layer should be provided. Use of
the proprietary or non-standard protocol implementations must
be identified; (ii) a detailed description of the management
interfaces and functionality implemented at the application
layer described in terms of GDMO or TL-1; (iii) a technical
contact available to support Buyer during OS development. This
point of contact should possess a detailed understanding of
the protocol interfaces and the network management
applications implemented on the NE. The primary means of
contact will be through email to both Xxxxx Xxxxxxx (Director,
Systems Engineering) and Xxxxxx Xxxxxx (Director, Customer
Engineering) or their successors, if any. To assist Seller in
its response, each such contact should include a priority
listing ranking of either a Level One, Two or Three inquiry
(Level One to denote in need of a response within less than a
week. Level Two or denote in need of response within one to
two weeks, and Level Three to denote in need of response
beyond two weeks), and (iv) notification to Buyer in the event
of any modifications to the above TMN interfaces or
communication protocols for new product releases and the
appropriate documentation and support provided as describe
above.
27.5 In good faith effort and to the extent reasonably feasible,
Seller will test the current 2000S radio to Bellcore's Network
Equipment Building System (NEBS) requirements. Such tests
shall be conducted by either an independent third party
testing facility or by the manufacturer as witnessed by a
third party. The testing criteria shall be those elements off
NEBS only that are applicable to the 2000S radio
equipment and that Seller has stated either meet or may meet
the NEBS standard. Seller's intention is to assist Buyer,
where and when practical, in using these tests' results to
obtain collocation approval.
Furthermore, in a good faith effort, Seller will design, build
and make available during the term of this Master Agreement, a
new enhanced version of the 2000S radio. This new version will
be in significant compliance with the NEBS' standard.
NEC America, Inc. Pathnet, Inc.
By: /s/Xxxxxxx Xxxxxxx By: /s/Xxxxx Xxxxxxxxx
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X. Xxxxxxx X. Xxxxxxxxx
Title: AGM, RCSD Title: Chairman
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Date: 11/19/98 Date: 11/20/98
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