Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities And Exchange Commission.
EXHIBIT 10.27
DYNEGY CONNECT, L.P.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
November 6, 2000
Tellium, Inc.
0 Xxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx XxXxxx, Vice President
Re: First Amendment to Purchase Agreement, made as of September 21, 1999
("Purchase Agreement"), by and between Dynegy Connect, LP, a Delaware
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limited parnership ("Dynegy Connect") (as indirect successor to
Extant, Inc.) and Tellium, Inc. ("Tellium")
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Dear Xx. XxXxxx:
Reference is made to the Purchase Agreement. All capitalized terms that are
used herein but not defined shall have the meaning ascribed to them in the
Purchase Agreement.
This amendment (the "Amendment") to the Purchase Agreement is effective as
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of the date above written.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound hereby, the
parties agree as follows:
The Purchase Agreement is hereby amended as follows:
1. Section 1 shall be deleted in its entirety and replaced with the
following:
(a) Scope: Subject to the terms, provisions and conditions hereinafter
set forth, during the term of this Agreement, Dynegy Connect, L.P. and
the other Authorized Purchasers (as defined in Section 1(b) below),
including but not limited to European Affiliates of Dynegy Inc., agree
to purchase, and Tellium agrees to sell, deliver and, if agreed to by
the parties, install their full optical switch requirements during the
three (3) year period ending November 1, 2003, including hardware and
software ("Products") at the prices set forth on Schedule C attached
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hereto; provided, however, any commitment to purchase Products shall
be subject to the Products meeting, in the Authorized Purchaser's
reasonable discretion, performance standards and current technology
being deployed at any time during the term of this Agreement. Subject
to the foregoing, it is expected that Dynegy Connect shall
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities And Exchange Commission.
purchase approximately Two Hundred and Fifty Million Dollars
($250,000,000) of Products and installation services described in the
Schedules, attached hereto and made a part of this Agreement from
Tellium during the term of this Agreement. It is the intention of the
parties that Products shall be delivered in such quantities and at
such times as is set forth in Schedule A attached hereto.
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(b) Definitions: For purposes of this Agreement, the following terms
shall have the following meanings:
(1) "Affiliate" shall mean with respect to a person, any
other person directly or indirectly controlling, controlled
or under common control with such person. For purposes of
this definition, "control" when used with respect to any
person means the power to direct the management and
policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract, or
otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
(2) "Authorized Purchaser" shall mean
(a) DCP Leasing, L.L.C., Dynegy Connect, L.P. or
Dynegy Global Communications, Inc. (collectively
referred to herein as the "Dynegy Entities");
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(b) (***);
(c) (***); and/or
(d) (***).
2. The first paragraph of Section 3 shall be deleted in its entirety and
replaced with the following:
Dynegy Connect will issue purchase orders ("Orders") to Tellium for
delivery and installation of Products, which Orders will be based on the
Forecasts (as defined below) delivered pursuant to Section 3.1.
Other Authorized Purchasers may issue purchase orders to Tellium under
the Purchase Agreement provided that (i) such Authorized Purchasers agree
to be bound all applicable terms and conditions of the Purchase Agreement
insofar, but only insofar, as they relate to the purchase orders issued
by such Authorized Purchaser and the equipment delivered pursuant to such
purchase orders, which applicable terms and conditions shall include,
without limitation, those set forth in this Section 3 and Sections
4, 5, 6, 8, 10, 14, 16, 23, 29 and 30, and (ii) if the Authorized
Purchaser for a purchase order is any person other than (***), Dynegy
Connect or Dynegy Global
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Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities And Exchange Commission.
Communications, Inc. then such Authorized Purchaser shall meet the
reasonable credit criteria employed by Tellium.
Tellium shall provide Dynegy Connect or such other Authorized
Purchaser with notice of acceptance of such Order within seven (7) days
of receipt of the Order. Every Order shall contain a description of the
Products ordered, the quantities and prices, the delivery date(s), and
the place of delivery. All such Orders will be made pursuant and subject
to this Agreement, whether specifically stated or not. In the event of a
conflict or variance between the terms and conditions of an Order and the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall govern.
All purchases made by any Authorized Purchaser will be deemed to be
purchases made by Dynegy Connect (as successor to Extant) for purposes of
calculating any volume discounts and for purposes of calculating the
number of, and the vesting of, the Warrants.
3. Section 4 shall be deleted in its entirety and replaced with the
following:
Tellium shall deliver the Products by the delivery date(s) set
forth in the applicable Order but in no event shall delivery occur
after the (* * *) after receipt of the Order unless otherwise agreed
in writing between the Authorized Purchaser and Tellium. In the event
that delivery of an Order is not made within the respective time
period specified in Section 29.2, the Authorized Purchaser shall have
the right to terminate this Agreement in accordance with Section 29.2.
The Authorized Purchaser's acceptance of the Products shall be in
accordance with Section 6 at the destination(s) specified in the
Order. All deliveries shall be F.O.B. Oceanport, New Jersey. Title and
risk of loss or damage to the Products shall remain with Tellium until
delivery of the Product to a common carrier for delivery to the
Authorized Purchaser. Customer shall pay shipping and insurance
charges. Loss, damage or destruction subsequent to Delivery of the
Products shall not relieve the Authorized Purchaser or of its
obligations to pay for the Products.
4. Section 5 shall be deleted in its entirety and replaced with the
following:
(a) The pricing for Products shall be as set forth in
Schedule C attached hereto. The prices set forth in Schedule C
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are exclusive of all federal, state or local sales, excise, use,
value added, import or export or similar taxes, other than taxes
based upon Tellium's net income or corporate franchise. Tellium may
invoice Customer for any taxes which Tellium will be required to
collect or pay.
(b) All payments shall be made in U.S. Dollars.
(c) Products and installation services shall be invoiced
separately. Products shall be invoiced within (* * *) of delivery
and installation services shall be invoiced upon acceptance (as
defined in Section 6).
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Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities And Exchange Commission.
(d) All invoices shall be due net (* * *) from the date of
invoice.
(e) For any amount due hereunder which remains unpaid after its
due date, Customer shall pay Tellium a service fee of (* * *) of the
amount due that remains unpaid.
(f) (* * *) shall (* * *) and (* * *) the (* * *) to the
(* * *) for (* * *) to (* * *) or (* * *).
(g) Tellium shall provide Engineer & Furnish (Pre-wired and
Tested OXC) services as set forth in Schedule C, Table 3 for the
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first (* * *).
(h) When the Authorized Purchasers have (* * *) for (* * *)
of (* * *), Tellium (* * *) a (* * *) of (* * *) to (* * *) for
(* * *) stated in (***).
5. Section 6 is amended as follows:
(a) The insertion of an (a) at the very beginning of such
section.
(b) Each reference to "(* * *)" in Section 6 shall be replaced
with "(* * *)."
(c) The following subsection (b) shall be added to Section 6:
(b) Installation Services: Acceptance shall have occurred
with respect to installation services on the earlier of
(* * *) following installation or the carrying of live
traffic on the network.
6. Section 8 shall be deleted in its entirety and replaced with the
following:
IMPORT/EXPORT. Each Authorized Purchaser hereby covenants that no
commodities or technical data (including computer software) or other
technology agreed to be sold or otherwise transferred under this
Agreement will be sold, leased, delivered, transferred or conveyed to
any person in any country except in strict compliance with all export
and import laws, regulations, executive orders or decrees of the
United States Government or any agencies thereof and the government of
any other country (or agencies thereof) with jurisdiction over such
transaction. Each Authorized Purchaser shall, solely at its own
expense, obtain all required export and import licenses, permits,
approvals, certificates and verifications before shipment of any
Products.
7. A new paragraph shall be added to Section 16 which shall read as follows:
Notwithstanding any other provision of the Purchase Agreement, Tellium
may (i) disclose the terms of this Amendment in any filing with the
Securities and
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Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities And Exchange Commission.
Exchange Commission and (ii) file this Amendment with the Securities
and Exchange Commission, provided that it uses (* * *) to seek
confidential treatment with respect to the filing referred to in
Clause (ii) of this Section 7.
8. Section 29.2 (c) shall be deleted in its entirety.
This Letter Agreement may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be contained on
any one counterpart hereof; each counterpart shall be deemed an original, but
all of which together shall constitute one and the same instrument. Delivery of
an executed signature page of this Letter Agreement by facsimile transmission
shall be effective as delivery of a manually-executed counterpart hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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Note: Redacted portions have been marked with(***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
Please execute below to evidence your agreement to the foregoing.
Very truly yours,
DYNEGY CONNECT, L.P.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
ACCEPTED AND AGREED TO:
TELLIUM, INC.
By: /s/ Xxxxxxxx XxXxxx
---------------------------------
Name: Xxxxxxxx XxXxxx
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Title: VP Business Development
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DCP LEASING,L.L.C., as Construction Agent for
Polaris Connect Statutory Trust
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
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Title: Executive Vice President
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DYNEGY GLOBAL COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
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Title: Vice President
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