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Exhibit
10.9
FIFTH AMENDMENT TO THE
MASTER ACQUISITION AGREEMENT
This Fifth Amendment (the
“ Fifth Amendment ”) is entered into as of
October 1, 2007, and is made pursuant to the Master
Acquisition Agreement, dated April 11, 2005, as amended by the
First Amendment dated May 19, 2005, the Second Amendment dated
August 20, 2005, the Third Amendment dated November 15,
2006, and the Fourth Amendment dated February 23, 2007 (the
“ Agreement ”), by and between BTE Equipment,
LLC, a Delaware limited liability company (“ BTE
”), with a place of business at 1025 Eldorado Boulevard,
Broomfield, CO 80021, and Infinera Corporation, a Delaware
corporation (“Vendor”), with a place of business at
1322 Bordeaux Drive, Sunnyvale, CA 94089. Terms capitalized but not
defined herein shall have the meaning ascribed to them in the
Agreement.
WHEREAS , the parties
wish to amend certain terms and conditions of the
Agreement;
NOW THEREFORE , for
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, BTE and Vendor hereby agree to modify
and amend the Agreement as follows:
1. Amendment to
Exhibit 2.2, Pricing Schedule .
A. Section A.1,
Hardware And Software Pricing . Schedule 1 (Price List) to
Section A.1 (“HARDWARE AND SOFTWARE PRICING”) of
Exhibit 2.2 (as amended by the Fourth Amendment) is hereby
amended in part as follows:
The following Product Prices
set forth in the Price List are hereby deleted:
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