Exhibit 10.33.1
Confidential Portions
Omitted
** - I NDICATES THAT CONFIDENTIAL PORTIONS ARE OMITTED AND FILED SEPARATELY WITH THE C OMMISSION .
AMENDING AGREEMENT
This amending agreement is made the
10th day of March, 2006 (the “Amending Agreement”)
Between:
POWERWAVE TECHNOLOGIES,
INC., a Delaware
Corporation having its principal office at 1801 E. St. Andrew Place
Santa Ana, California 92705 (“Powerwave”)
-and-
CELESTICA CORPORATION
, a Delaware Corporation having its
principal office at 9 Northeastern Boulevard, Salem NH 03079
(“Celestica”)
WHEREAS Powerwave and Celestica entered into a
Manufacturing Services and Supply Agreement effective as of
November 21, 2002 (the “Agreement”);
AND WHEREAS
Powerwave and Celestica wish to
amend certain of the provisions of the Agreement as set forth
below;
NOW THEREFORE
for good and valuable consideration
the receipt and sufficient of which is hereby acknowledged, the
parties agree as follows:
Celestica and Powerwave hereby agree
that Celestica shall be the global preferred outsourcing partner to
Powerwave. As the global preferred outsourcing partner to
Powerwave, Celestica shall be entitled to the following:
1.1 Celestica shall have the right
to quote on all business that is outsourced or considered for
outsourcing by Powerwave related to electronics
manufacturing;
1.2 Celestica shall have the right
to match any quote that Powerwave receives in respect of outsourced
electronics manufacturing business. Powerwave hereby acknowledges
and agrees that Celestica ** ** ** ** ** ** ** ** ** ** ** ** ** **
** ** ** ** ** ** (with consideration given to total cost of
ownership, delivery, performance and customer satisfaction) as the
most competitive quotation received by Powerwave from a reputable
arm’s length third party for the manufacture of same Product
when evaluated against the Celestica quotation on a complete basis
and giving due consideration to the point of manufacture, delivery
destination, service level and offering.
1.3 The rights identified in
Section 1.1 and 1.2 apply in respect of pure outsourcing as
well as outsourcing conducted by way of asset
divestitures.
1.4 Subject to the confidentiality
terms of Powerwave’s existing agreements with third parties,
Powerwave shall provide Celestica, in a timely manner, with all
relevant information as may be required by Celestica to enable
Celestica to develop a competitive quote for any electronics
manufacturing outsourcing business to be awarded by Powerwave. For
the sake of clarity, such relevant information shall include but
not be limited to summaries of quotes received from third parties
competing for such electronics manufacturing business and an
outline of the salient features of such quotes that may have
operational or economic ramifications. In addition to such
summaries of competing quotations, Powerwave shall provide
Celestica
with a reasonable amount of time to prepare its
quote. Celestica shall respond in a timely manner following receipt
of all such information noted herein.
1.5 Pricing on existing electronics
manufacturing services performed by Celestica prior to the
effective date hereof and which do not form part of the Revenue
Commitment (as defined below) is to be competitive with current
market pricing per the existing Agreement without giving effect to
the provisions hereof.
The Global Charter detailed in
section 1 above extends to all products sold by Powerwave during
the Term of the Agreement as amended hereby, including all
acquired, new, follow-on, replacement and derivative
products.
3.1 Section 20.2 of the
Agreement is deleted in its entirety.
3.2 The following Sections are
inserted in replacement thereof:
Powerwave acknowledges and agrees
that Celestica, in the performance of its obligations under this
Agreement, will incur financial obligations on behalf of Powerwave.
The Parties agree that Celestica will, before it incurs financial
obligations on behalf of Powerwave, and from time to time,
establish, and advise Powerwave in writing, of Powerwave’s
credit limit with Celestica (the “Credit Limit”).
Celestica will monitor its financial exposure to Powerwave on an
ongoing basis. Financial exposure with Powerwave will be
defi
