Exhibit 10.6
AMENDMENTS No. 1 & 2 TO THE
NETWORK PRODUCTS PURCHASE AGREEMENT
BETWEEN
NORTHERN TELECOM INC.
AND
FOCAL COMMUNICATIONS CORPORATION --
DELETED FOR SEC CONFIDENTIALITY
THIS AMENDMENT No. 1 TO NETWORK PRODUCTS PURCHASE AGREEMENT, Carrier
Networks Products, is dated effective as of the date executed by the latter of
the parties below, (the "Amendment No. 1"), is by and between Northern Telecom
Inc. ("Nortel") and Focal Communications Corporation ("Buyer"), and amends the
Network Products Purchase Agreement Number JRD0197FCC, dated January 21, 1997
("NPPA"), by and between Nortel and Buyer;
WHEREAS, the parties wish to amend the NPPA to reflect a change in the
address of the Buyer; and
NOW, THEREFORE, for the consideration shown below, the parties hereby amend
the NPPA as follows:
1. The Buyer's address for purposes of billing and notice pursuant to the
preamble and Section 18.5, is amended and restated as follows:
Focal Communications Corporation
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Executive Vice President
Facsimile: (000) 000-0000
NORTHERN TELECOM INC. FOCAL COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Xxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- -----------------------------
Signature Signature
Name: Xxxxxx Xxxx Name: Xxxx X. Xxxxxxxx
------------------------------ ---------------------------
Print Print
Title: Group VP, Carrier Networks Title: E.V.P. - C.O.O.
----------------------------- ---------------------------
Date: March 6, 1998 Date: February 17, 1998
------------------------------ ---------------------------
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AMENDMENT No. 2 TO PRODUCT ATTACHMENT
CARRIER NETWORKS PRODUCTS
BETWEEN
NORTHERN TELECOM INC.
AND
FOCAL COMMUNICATIONS CORPORATION
THIS AMENDMENT No. 2 TO PRODUCT ATTACHMENT, Carrier Networks Products, is
dated effective as of the date executed by the latter of the parties below, (the
"Amendment No. 2"), is by and between Northern Telecom Inc. ("Nortel") and Focal
Communications Corporation ("Buyer"), and amends the Product Attachment, dated
January 21, 1997 (the "Product Attachment"), as amended by Amendment No. 1 to
Product Attachment, dated June 10, 1997 (the "Amendment No. 1"), which are
attached to the Network Products Purchase Agreement Number JRD0197FCC, dated
January 21, 1997 ("NPPA"), by and between Nortel and Buyer;
WHEREAS, the parties wish to amend the Product Attachment and the Schedule
A attached thereto to reflect a change in Buyer's commitment and Buyer's desire
to purchase additional Products and Services from Nortel; and
NOW, THEREFORE, for the consideration shown below, the parties hereby amend
the Product Attachment and Schedule A as follows:
1. "Product Attachment Term", as defined in Section 2.0, "Definitions" is
amended and restated to read:
"Product Attachment Term" shall mean the period of time which shall
commence on the date this Amendment No. 2 to Product Attachment is executed
by the latter of the parties and shall expire thirty six (36) months
thereafter.
2. Section 3, entitled "Scope", in the Product Attachment is amended and
restated as follows:
(a) Buyer shall issue Orders for delivery and installation of the Products
listed in the attached Schedule A, in the minimum amount of
_________________________ every twelve (12) months during the Product
Attachment Term, for a total minimum commitment amount of
_______________________________ during the Product Attachment Term
(the "Commitment Amount"). Included within the Commitment Amount,
Buyer shall purchase a minimum of _______________ DMS-500 Initial
Systems, as
described in the attached Schedule A, Part I, Section 1.0. Buyer shall
pay the prices, fees and charges for the Products in accordance with
Section 7 of this Product Attachment.
(b) In the event that Buyer does not purchase a minimum of
__________________ in Product every twelve months during the Product
Attachment Term, Nortel shall invoice annually and Buyer shall pay
_______________ percent _______ of the difference between
_______________________ and the amount actually spent by the Buyer
during that twelve (12) month period of time, within thirty (30) days
from the date of invoice.
(c) Subsection (c) has been intentionally deleted.
(d) Buyer may issue Orders for the DMS-500 Optional Software described in
the attached Schedule A, Part III, Section 1.0, from time to time
during the Product Attachment Term. Buyer shall receive a
_______________________ discount on the prices, fees and charges set
forth in the attached Schedule A, Part m, Section 1.0, on any DMS-500
Optional Software Order included within or submitted in connection
with Buyer's Order for a DMS-500 Initial System described in Schedule
A, Part I, Section 1.0. Otherwise, Buyer shall receive a
_________________ discount on the prices, fees and charges set forth
in the attached Schedule A, Part III, Section 1.0, on any DMS-500
Optional Software Order issued at any other time during the Product
Attachment Term.
(e) Buyer shall receive a one (1) time forty five percent (45%) discount
on the initial Merchandise Order issued by Buyer during each quarter
during the Product Attachment Term, and a thirty percent (30%)
discount on all subsequent Merchandise Orders issued by the Buyer
during each quarter during the Product Attachment Term.
(f) No later than November 1st of each year during the Product Attachment
Term, Buyer shall provide to Nortel a written forecast listing the
Products that Buyer intends to order for delivery and installation
during the following twelve (12) months of the Product Attachment Term
(the "Annual Forecast"). The initial Annual Forecast is set forth in
the attached Schedule C. Buyer may revise its then-current Annual
Forecast from time to time, and, upon submission of the revised Annual
Forecast to Nortel, each such revised Annual Forecast shall supersede
all Annual Forecasts that were previously submitted to Nortel.
(g) Nortel shall perform an in-process and final audit for each and every
Initial System purchased and installed hereunder prior to the Turnover
Date as described in Section 8 of this Product Attachment. Also,
Nortel shall perform a final audit for each and every Extension
purchased and installed hereunder prior to the Turnover Date.
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(h) Subsection (h) has been intentionally deleted.
(i) Subsection (i) has been intentionally deleted.
3. Section 11, entitled "Additional Terms", in the Product Attachment is
amended and restated as follows:
(c) In the event that Nortel elects to discontinue the manufacture of any
Product described in the attached Schedule A at any time during the
seven (7) years following the Turnover Date of each Initial System
ordered hereunder, then Nortel shall provide Buyer with written notice
of such discontinuance at least twelve (12) months prior to the
scheduled date of such discontinuance. During the twelve (12) month
period following Buyer's receipt of such notification from Nortel,
Buyer may order and Nortel shall deliver as much of the Products
described in the attached Schedule A as Buyer reasonably requires at
the then current prices and/or licensing fees. Nothing herein shall be
construed so as to require Nortel to continue to manufacture any
Products described in the attached Schedule A.
(d) Deleted.
4. All provisions of Schedule A as attached to the Product Attachment and
Amendment No. 1 are hereby deleted and replaced with the Schedule A
attached hereto.
5. Schedule C to the Product Attachment is hereby deleted and replaced with
the Schedule C attached hereto.
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NORTHERN TELECOM INC. FOCAL COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Xxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- -----------------------------
Signature Signature
Name: Xxxxxx Xxxx Name: Xxxx X. Xxxxxxxx
------------------------------ ---------------------------
Print Print
Title: Group VP, Carrier Networks Title: E.V.P. - C.O.O.
----------------------------- --------------------------
Date: March 6, 1998 Date: February 17, 1998
------------------------------ ---------------------------
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SCHEDULE C
---------
SWITCH DELIVERY FORECAST
------------------------
Purchase
Switch Type/# Destination Delivery Date Ports Price*
* Denotes ports and price for each DMS-500 and/or Extension.
Schedule A
Part I. DMS-500 Initial System
(DMS-500 Switching System)
Nortel shall engineer each Initial System ordered hereunder in accordance with
Nortel's standard engineering practices and procedures, and thereafter Nortel
shall provide Buyer with a detailed list of the components of such Initial
System.
1.0 Initial System DMS-500
1.1 The following represents the SuperNode Equipment that will be delivered
with the Initial System DMS-500 switch:
Information from Section 1.1 has been deleted.
1.2 Initial System DMS-500
The price for the Initial System DMS-500 equipped and wired as
described in Section 1.1 above, and the fee for the license of the
Software is ___________.
1.3 Power Plant to support the above DMS-500 Initial System (Optional):
1.3.1 Power Plant
Information from Section 1.3.1 has been deleted.
1.3.2 Battery Distribution Fuse Bay
Information from Section 1.3.2 has been deleted.
1.4 Software Upgrades for the DMS-500 Initial System (Optional):
1.4.1 The price for the NCS05 (LLTOB005-Local/Toll) to NCS06
(LLDOB006-Local/Toll) Software Upgrade is ___________________.
1.4.2 The price for the NCS05 (LLTOB005-Local/Toll) to NCS07
(LLTOB007-Local/Toll) Software Upgrade is ___________________.
1.4.3 The price for the NCS05 (LLTOB005-Local/Toll) to NCS08
(LLTOB008-Local/Toll) Software Upgrade is ___________________.
1.4.4 The price for the NCS06 (LLDOB006-Local/Toll) to NCS08
(LLTOB008-Local/Toll) Software Upgrade is ___________________.
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1.4.5 The price for the NCS07 (LLTOB007-Local/Toll) to NCS08
(LLTOB008-Local/Toll) Software Upgrade is ___________________.
Schedule A
Part II. DMS-500 Standard Software Features
(DMS-500 System)
1.0 DMS-500 Standard Software Features
1.1 Nortel may deliver Software ordered hereunder in a single Software
load which may include Software which Buyer has not yet licensed
("Non-licensed Software"). Except as set forth in Section 1.2 below,
Buyer shall not be entitled to use such Non-licensed Software, until
such time as the applicable right to use fees are paid by Buyer
pursuant to Section 1.5.
1.2 Upon Buyer's placement of any Non-licensed Software in revenue
generating service, Buyer shall pay the applicable right-to-use fees
for such Non-licensed Software pursuant to this Agreement, except as
described in Section 1.2. Buyer shall also have the option to pay the
applicable right-to-use fees for any Non-licensed Software upon
installation of a Software load containing such Non-licensed Software.
For any Non-licensed Software that is installed and added pursuant to
a product computing module load ("PCL") and or non-computing module
load ("NCL"), if any, the right-to-use fees shall be the list price
for such feature in effect as of the date of activation.
1.3 To ensure Buyer's proper activation and/or usage of the appropriate
Software, Buyer shall properly notify Nortel at the address specified
in Section 9 of this Product Attachment to the attention of Director,
Sales Engineering, prior to the activation and/or usage by Buyer of
any Software. Buyer shall identify all Software being activated and/or
used (including the number of units activated, if applicable) in each
Initial System.
1.4 Nortel shall promptly review notification from Buyer provided pursuant
to Section 1.4 above and identify any applicable prerequisite
Equipment or Software required by Buyer prior to activation and/or
usage of the applicable Software. Nortel shall respond to Buyer's
written notice by means of a price quotation. Such price quotation
shall include Nortel's consent to activate and/or use such Software or
notification that such Software requires engineering to determine
whether the current switch configuration will require additional
Equipment prior to activation and/or usage. Upon Buyer's written
acceptance of Nortel's price quotation, Nortel shall grant its consent
to Buyer to activate and/or use such Software prior to payment of the
applicable right-to-use fees. However, under no circumstances shall
such Software be activated and/or used by Buyer prior to Buyer's
acceptance of Nortel's price quotation. Nortel shall invoice Buyer for
all applicable right to use fees and associated feature
activation engineering charges. One hundred percent (100%) of such
invoiced right to use fees and engineering charges shall be due and
payable within thirty (30) days of the date of Nortel's invoice
therefor.
1.5 Notwithstanding the foregoing, Buyer shall not be required to pay
additional right to use fees associated with the Software licensed
prior to the initial date of this Product Attachment.
1.6 Nortel reserves the right, every six (6) months to submit a written
report for each site containing a Software load. The written report
shall identify all Software activated and/or used (including the
number of incremental units activated, if applicable) by Buyer during
the applicable reporting period. Buyer shall audit the report against
Purchase Order(s) which have been submitted by Buyer and accepted by
Nortel during the applicable period to determine the existence of any
discrepancies. Buyer shall submit such audited written report to
Nortel at the address specified in Section 9 of this Product
Attachment to the attention of Director, Sales Engineering, within
thirty (30) days from receipt of such request.
1.7 Nortel also reserves the right to access by remote polling or to
conduct an on-site inspection of any site in which a Software load is
installed and/or to perform an on-site review of Buyer's books and
records related to such site to verify activation and/or usage of
Software.
1.8 Nortel shall issue invoices, for any applicable prices, charges or
fees, in addition to those amounts previously invoiced, as a result of
Buyer's activation and/or usage of any Software that does not appear
on Nortel's written report or that appear as a result of Nortel's
remote polling of an Initial Systems.
1.9 Upon payment of the applicable right to use fees for Software
activated and/or used by Buyer, Buyer shall receive a non-exclusive
paid-up license to use such Software in accordance with the provisions
of this Agreement. Nortel may immediately terminate the applicable
license granted hereunder for Buyer's failure to pay the applicable
right to use fees for such Software which has been activated and/or
used.
1.10 The obligations of Buyer under this Section 1 shall without limitation
survive the termination of this Agreement and shall continue if the
Software is removed from service. Buyer agrees to indemnify Nortel or
Third Party Software Vendors as appropriate for any loss or damage
resulting from a breach of this Section 1.
2.0 LLDOB008 Software included in the DMS-500 Initial System
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2.1 Software included in the DMS-500 Initial System
The following represents the LLDOB008 Software packages that are
included in the price of the DMS-500 Initial System, described in
Schedule A, Part 1, Section 1.0. The following is a list of Software
only and does not include any/all required Equipment to provide
feature functionality.
S/W Package Description
----------- -----------
The information from this section has been deleted.
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Schedule A
Part III. DMS-500 Complete (Optional and Standard) Software Features
(DMS-500 System)
1.0 LLDOB008 Complete Software Features
1.1 Complete Software Features
The following represents all of the LLWB008 software packages that can
be licensed on a DMS500 System. The following is a list of Software
only and does not include any/all required Equipment to provide
feature functionality.
1.1.1 Standard Software Features
If the Software package IS LISTED in Schedule A, Part II,
and CONTAINS an "L" in the "License Status" column, such
Software packages ARE LICENSED to the Buyer as part of the
Standard Software load for the DMS-500 Initial System. The
price of that Software package IS INCLUDED in the price of
the DMS-500 Initial System set forth in Schedule A, Part I,
Section 1.2.
1.1.2 Optional Software Features
If the Software package IS NOT LISTED in Schedule A, Part II
and DOES NOT CONTAIN an "L" in the "License Status" column,
such Software packages IS NOT LICENSED to the Buyer as part
of the Standard Software load for the DMS-500 Initial
System. The price of that Software package IS NOT INCLUDED
in the price of the DMS-500 Initial System set forth in
Schedule A, Part I, Section 1.2. Such Software Package may
be purchased by the Buyer under the Product Attachment as
Optional Software for the DMS-500 Initial System.
License Order Product Name List Price Pricing Notes
------- ----- ------------ ---------- -------------
Status Code
------ ----
This information has been deleted.
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Schedule A
Part IV. DMS-500 Extensions
(DMS-500 System)
DMS-500 Extension Pricing
1.0 DTCVDTC7 Port Extension Pricing
1.1 DTCVDTC7 Port Extension Pricing
The DTCI provides DS-1 interconnect for ISDN PRI or MF Trunking. The
DTC7 provides DS-1 interconnect for SS7 or MF bunking. Each DTCI/DTC7
Port Extension is configured in minimum increments of nine hundred
sixty (960) ports, and is configured for SS7 or ISDN signaling at
FOCAL's request. The price for the DTCI/DTC7 Port Extensions includes
the following
a.) DTCI/DTC7 Equipment and XPM;
b.) Either UTR, STR, CTD as required for DTCs configured for SS7, or
UTR and ISDN pre-processor circuit pack configured for ISDN PRI
capability;
c.) Any required ENET, MS;
d.) Any required DMS-500 service/test circuits to support the
DTCI/DTC7 Port Extensions;
e.) Power Distribution Center (PDC) equipment as required to support
the DTEI Port Extensions;
f.) Spare circuit packs if required; and
g.) Wired ports contain all of the above except the DS-1 circuit
packs.
1.2 Initial Port Prices
Additional DTC7/DTCI ports may be Ordered and Installed with the
Initial System for the following listed prices:
Minimum Port Price per
Description Increment Port
----------- ------------ ---------
DTC7 ports Wired & Equipped 960 ____
DTCI ports Wired & Equipped 960 ____
1.3 Extensions Port Prices
The price for DTCI/DTC7 Port Extensions Ordered in minimum increments
of 4800 ports over and above the initial configuration at any time
other than with an Order for an Initial System, are as follows:
Minimum Port Price per
Description Increment Port
----------- --------- ----
DTC7 ports Wired & Equipped 4800 ____
DTCI ports Wired & Equipped 4800 ____
The price for DTCI/DTC7 Port Extensions Ordered in increments of 960
up to 3840 ports over and above the initial configuration at any time
other than with an Order for an Initial System are ____ per port.
2.0 SMA2 Port Extension Pricing
2.1 SMA2 Ports
The SMA2 provides DS-1 interconnect for TR-303 interface. Each SMA2
Port Extensions is configured in minimum increments of nine hundred
sixty (960) ports. SMA2 is only available on DMS-100 and DMS-500
systems. The price for an SMA2 Port Extensions includes the following:
a) SMA2 Equipment;
b) Any required ENET, MS;
c) Any required DMS-500 service/test circuits to support the SMA2
Extensions;
d) Power Distribution Center (PDC) equipment as required to support
the SMA2 Extensions;
e) Spare circuit packs if required; and
f.) Wired ports contain all of the above except the DS-1 circuit
packs.
2.2 Initial Port Prices
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Additional SMA2 ports may be Ordered and Installed with the Initial
System at the following prices:
Minimum Port Price per
Description Increment Port
----------- --------- ----
SMA2 ports Wired & Equipped 960 ____
2.3 Extension Port Prices
Additional SMA2 ports may be Ordered in 1920 increments at any time
other than with the Initial System for the following prices:
Minimum Port Price per
Description Increment Port
----------- -------- ----
SMA2 ports Wired & Equipped 1920 ____
SMA2 ports Wired & Equipped 960 ____
3.0 Link Peripheral Processor (LPP)
3.1 Initial Channelized Access LIU 7 Interface Unit Pricing
Additional Channelized Access LIU7 Interface Units may be Ordered and
Installed with the Initial System for the price of __________________
per unit. Channelized Access LIU7 Interface Unit consists of the
following:
Otv PEC Description
--- --- -----------
1 NTEX22BB IPF Integrated Proc & FBUS
1 NT9X76AA STP- Signalling Terminator CP
1 NTEX26AA LUI Channel Bus I/F
1 NT9X0193 STP Bulkhead Cable Assembly
3.2 Extension Channelized Access LIU 7 Interface Unit Pricing
Channelized Access LIU7 Interface Units may be Ordered at any time
other than with an Initial System for the price of ___________________
per unit. This price is for furnish only and does not include spares.
3.3 Initial Ethernet Interface Unit Pricing
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Additional Ethernet Interface Units may be Ordered and Installed with
the Initial System for the price of ____________________ per unit.
Ethernet Interface Unit consists of the following:
Qty PEC Description
--- --- -----------
1 NTEX22BB IPF Integrated Proc & FBUS
1 NT9X84AA Ethernet Interface Circuit Pack
1 NT9X85AA Ethernet Access Unit Interface PB
1 NT9X0190 Ethernet Cable Assembly
3.4 Extension Ethernet Interface Unit Pricing
Ethernet Interface Units may be Ordered at any time other than with an
Initial System for the price of _________________________ per unit.
This price is for furnish only and does not include spares.
3.5 Initial Frame Relay Interface Unit (FRIU) Pricing
Additional Frame Relay Interface Units may be Ordered and Installed
with the Initial System for the price of ____________________ per
unit. Price does not include software. Frame Relay Interface Unit
consists of the following
Otv PEC Description
--- --- -----------
1 NTEX22BB XXX Xxxxxxxxxx Xxxx & XXXX
0 XXXX00XX Frame Relay T1 Access XX
0 XXXX00XX Xxxxx Enhanced Relay Access Proc CP
2 NT9X0191 FRIU Cable Assembly
3.6 Extension Frame Relay Interface Unit (FRIU) Pricing
Frame Relay Interface Units may be Ordered at any time other than with
an Initial System for the price of _______________________ per unit.
This price is for furnish only. Pricing does not include spares or
software.
3.7 Initial Packet Handler (XLIU) Pricing
Additional Packet Handlers may be Ordered and Installed with the
Initial System for the price of _______________________ per unit.
Price does not include software. Packet Handler consists of the
following:
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Oty PEC Description
--- --- -----------
1 NTEX22BB IPF Integrated Proc & FBUS
1 NTFX09AA CBUS Interface PB
1 NTFX1OAA HDLC Frame Processor CP
3.8 Extension Packet Handler (XLIU) Pricing
Packet Handler may be Ordered at any time other than with an Initial
System for the price of ____________________ per unit. This price is
for furnish only. Pricing does not include spares or software.
3.9 Initial Network Interface Unit (NIU) Pricing
Additional Network Interface Units may be Ordered and Installed with
the Initial System for the price of ______________________ per unit.
Network Interface Unit consists of the following:
Qty PEC Description
--- --- -----------
2 NTEX22BB XXX Xxxxxxxxxx Xxxx & XXXX
0 XXXX00XX Channel Bus Control Xxxx
0 XXXX00XX Xxxxxxx Xxx Xxxxxxx Xxxx
0 XXXX00XX DS30 Link Interface Unit
4 NT9X7020 Cable Assemblies
2 NT9X7021 NIU Inter CBC Cable
4.10 Extension Network Interface Unit (NIU) Pricing
Network Interface Unit may be Ordered at any time other than with an
Initial System for the price of ____________________ per unit. This
price is for furnish only.
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