Exhibit 10.36
FIRST AMENDMENT TO
AMENDED AND RESTATED
PURCHASE AGREEMENT
This First Amendment to Amended and Restated Purchase Agreement (the
"Amendment") is made as of May 25, 1999 by and among Advanced Radio Telecom
Corp., a Delaware corporation ("Customer"), and Lucent Technologies Inc., a
Delaware corporation ("Seller").
RECITALS
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1. Customer and Seller are parties to a certain Amended and Restated
Purchase Agreement dated as of July 24, 1998 (the "Purchase Agreement").
Capitalized terms used in this Amendment without definition shall have the same
meaning as in the Purchase Agreement.
2. The parties wish to amend the Purchase Agreement to change certain
terms related to Customer's purchase commitment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. The Purchase Agreement is amended as follows:
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1.1. Article 1 of the Purchase Agreement is hereby amended by changing
the following subsections:
(h) the language "Section 2.8(b)" in the definition of "Average
Allocation" is hereby deleted and replaced with "Section 2.8."
(i) the language "Section 2.8(b), including Cure Purchases" in
the definition of "Average Allocation Test" is hereby deleted and
replaced with "Section 2.8."
(k) the definition of "Best In Class" is hereby deleted.
(o) the definition of "Characteristics" is hereby deleted.
(t) the definition of "Cure Purchases" is hereby deleted.
(u) the definition of "Customer Comparison" is hereby deleted.
(w) the definition of "Deficiency Notice" is hereby deleted.
(x) the definition of "Deliverable" is hereby deleted.
(yyyy) the definition of "Total Contract Value" shall be
deleted.
1.2. Section 2.1 of the Purchase Agreement is hereby amended to replace
the two instances of the word "will" with, in each case, the word "may."
1.3. Section 2.2 of the Purchase agreement is hereby amended to replace
the phrase "that is not expected to exceed $1.2 billion" with the phrase
"to the extent purchased by Customer hereunder."
1.4. Section 2.8 of the Purchase Agreement is hereby deleted and
replaced with the following:
"2.8. Average Allocation. Customer may from time to time place
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RS Orders and Orders with Seller. For purposes of this Agreement, the
"Average Allocation" for any Allocation Period shall be calculated by
averaging such RS Orders and Orders for any Allocation Period and all
previous Allocation Periods, provided that Customer shall at no time
have any obligation to place RS Orders or Orders and shall at all
times have the right to purchase products and licensed materials from
vendors other than Seller."
1.5. Section 2.9 of the Purchase Agreement is hereby deleted and
replaced with the following:
"2.9. International Orders. The parties agree that if the
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parties agree upon the provision by Seller of products, licensed
materials or services to Customer or its Subsidiaries in any
territories outside the United States, the amount of any orders placed
for such products, licensed materials and services shall be included
in the calculation of Average Allocation pursuant to Section 2.8
hereof."
1.6. A new Section 2.10 shall be added to the Purchase Agreement as
follows:
"2.10. Commitment. The parties hereby agree that Customer has no
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commitment to purchase any equipment, software or services from Seller
hereunder, including having no minimum purchase commitments hereunder,
and that Customer may purchase equipment, software and services from
other parties for its network. The parties agree that,
notwithstanding anything else in the Agreement, all other provisions
of this agreement shall be interpreted consistently with the foregoing
sentence."
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1.7. Section 3.1 of the Purchase Agreement is hereby deleted and
replaced with the following:
"3.1. Configuration of the Network. With respect to equipment,
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software and services purchased prior to the date of the effectiveness
of Amendment 1 hereto and, with respect to equipment purchased after
the date of the effectiveness of Amendment 1 hereto then to the extent
agreed by the parties from time to time, Seller will configure and
engineer a state of the art Network to provide wireless, packet-based,
broadband data services to those major metropolitan areas throughout
the United States agreed upon by the parties, in accordance with the
Specifications and Responsibility Matrix which may be updated or
amended from time to time by mutual written agreement. In designing
the Network, in order to accommodate the ultimate demands on the
Network, Seller will assist Customer in evaluating the size and
potential requirements of the market for wireless, broadband data
services and in planning and structuring the Network to best realize
such potential."
1.8. Section 3.2 of the Purchase Agreement is hereby amended by adding
the following text to the beginning of the Section, immediately preceding
the word "Seller":
"With respect to equipment, software and services purchased prior
to the date of the effectiveness of Amendment 1 hereto and, with
respect to equipment purchased after the date of the effectiveness of
Amendment 1 hereto then to the extent agreed by the parties from time
to time,"
1.9. Section 3.4 of the Purchase Agreement shall be deleted in its
entirety.
1.10. Section 6.10 of the Purchase Agreement is hereby deleted and
replaced with the following:
"6.10. Security Interest. Seller retains and Customer hereby
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grants Seller a purchase money security interest in the Network to
secure any and all amounts due Seller under this Agreement for the
Purchase Price of the Network. Seller shall have the right, at any
time during the Term, to file in any state or local jurisdiction such
financing statements (e.g., UCC-1 financing statements) as Seller
deems necessary to perfect its purchase money security interest
hereunder, provided Customer is furnished a copy of such financing
statements before filing. Upon Seller's reasonable request, Customer
shall execute all documents necessary or desirable to evidence or
perfect Seller's purchase money security interest in the Network
including without limitation, UCC-1 financing statements. Customer
also agrees that this Agreement may be filed by Seller in any state or
local jurisdiction as a financing statement (or as other evidence of
the Seller's purchase money security interest). To the extent
Customer has no outstanding financial obligations to Seller hereunder,
Seller will, if
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requested by Customer, take reasonable steps necessary to terminate
and release such security interests, including filing UCC-3
termination statements."
2. Ratification. Except as modified by this Amendment, the Purchase
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Agreement is hereby ratified and reconfirmed in all respects.
3. Indebtedness. Immediately following the closing of Customer's sale of
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convertible preferred stock pursuant to a Preferred Stock Purchase Agreement to
be executed in May 1999 among Customer and certain "Purchasers" named therein,
Customer shall repay Seller all amounts due Seller under the Purchase Money
Credit Agreement, dated September 17, 1998 and the Working Capital Credit
Agreement, dated September 17, 1998, each between Customer and Seller. Customer
and Seller intend to enter into an Amendment No. 1, Waiver and Consent Agreement
dated on or about the date hereof pursuant to which certain terms of the
foregoing agreements are to be modified. This agreement is intended to operated
in conjunction with such agreement and to be interpreted consistently therewith.
4. Counterparts. The Amendment may be executed simultaneously in one or
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more counterparts hereof, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
5. Effectiveness. This Amendment shall be effective upon the execution by
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Customer and Seller.
[Remainder of Page Intentionally Blank]
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The foregoing Amendment is hereby executed as of the date first above
written.
ADVANCED RADIO TELECOM CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman & CEO
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Senior Vice President
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