CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
FIRST AMENDMENT TO NETWORK SERVICES AGREEMENT
THIS FIRST AMENDMENT to the Network Services Agreement (the "AMENDMENT"),
effective as of January 8, 2002 (the "AMENDMENT EFFECTIVE DATE") is made by and
between America Online, Inc., a Delaware corporation with offices at 00000 XXX
Xxx, Xxxxxx, Xxxxxxxx 00000 ("AOL"), and Genuity Solutions Inc. (formerly, BBN
Corporation), a Massachusetts corporation with offices at 000 Xxxxxxxxxxxx Xxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("GENUITY").
RECITALS
WHEREAS, AOL and BBN Corporation entered into that certain Network
Services Agreement, effective as of December 31, 1999 (the "AGREEMENT");
WHEREAS, on May 19, 2000, BBN Corporation changed its name to Genuity
Solutions Inc.;
WHEREAS, pursuant to the terms of the Agreement, as amended hereby, AOL
agrees to purchase and Genuity agrees to provide those certain Dial-Up Access
Services through December 31, 2006, those certain Other Services through
December 31, 2005 and those certain Broadband Backhaul Services for DSL through
December 31, 2004; and
WHEREAS, AOL and Genuity both desire to modify certain terms of the
Agreement, as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, AOL and Genuity agree as follows:
TERMS
1. DEFINED TERMS. Capitalized terms used but not otherwise defined herein
shall have the meanings given thereto in the Agreement. Defined terms in
this Amendment shall be deemed incorporated into the Agreement.
2. RELEASE OF OBLIGATIONS.
2.1. INTERNATIONAL PURCHASE COMMITMENT. Genuity hereby releases AOL from
any and all of its obligations under Section 2.8(c) of Schedule B of
the Agreement (such obligations, collectively, the "RELEASED
INTERNATIONAL PURCHASE COMMITMENT"). Section 2.8(c) of Schedule B of
the Agreement is hereby deleted in its entirety.
2.2. DIAL-UP PURCHASE COMMITMENT. Genuity hereby releases AOL from any
and all of its obligations with respect to Sections 2(c) and 2(d) of
Exhibit B-1 of the Agreement (such obligations, collectively, the
"RELEASED DIAL-UP PURCHASE COMMITMENT"). The parties hereby
acknowledge and agree that AOL has satisfied all of its obligations
with respect to the Dial-Up Purchase Commitment under Sections 2(a)
and 2(b) of Exhibit B-1 of the Agreement and shall have no further
obligations thereunder.
2.3. OTHER BROADBAND PURCHASE COMMITMENT. Genuity hereby releases AOL
from any and all of its obligations under Section 2.2 of Exhibit C-1
of the Agreement (such obligations, collectively, the "RELEASED
OTHER BROADBAND PURCHASE COMMITMENT"). Section 2.2 of Exhibit C-1 of
the Agreement is hereby deleted in its entirety. Notwithstanding
anything to the contrary in the Agreement, Genuity shall have no
obligation to offer or provide to AOL Broadband Backhaul Services;
PROVIDED, HOWEVER, that Genuity shall continue to provide Broadband
Backhaul Services for DSL in accordance with Schedule C of the
Agreement. In the event that Genuity agrees to provide to AOL
Broadband Backhaul Services other than for DSL (I.E., Broadband
Backhaul Services for broadband traffic received from cable
networks, wireless networks, satellite networks, or other
technologies excluding DSL traffic originating from the public
switched telephone network) (the
1
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
"OTHER BROADBAND SERVICES") from time to time under the Agreement,
the parties agree that the pricing set forth in Exhibit C-2 of the
Agreement shall not apply, and that the pricing for such Other
Broadband Services shall be as mutually agreed in writing by Genuity
and AOL on a case-by-case basis PROVIDED, HOWEVER, that the pricing
set forth in Exhibit C-2 shall still apply to the provision of
Broadband Backhaul Services for DSL.
3. AMENDED DIAL-UP PURCHASE COMMITMENT. In lieu of AOL's prior obligations
with respect to Sections 2(c) and 2(d) of Exhibit B-1 of the Agreement,
AOL commits to maintain a minimum of [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated
Dial-Up Access Ports commencing on the Amendment Effective Date and
continuing through [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] ("INITIAL COMMITMENT") and a
minimum of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up Access Ports
commencing [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] and continuing through the
remainder of the Term ("REDUCED COMMITMENT") (such commitments shall be
collectively referred to as the "AMENDED DIAL-UP PURCHASE COMMITMENT");
provided that AOL's rights to decommission Dedicated Dial-Up Access Ports
are subject to Section 8.2 of Schedule B of the Agreement, as amended
hereby. For the avoidance of doubt, the parties acknowledge and agree
that as of the Amendment Effective Date, Genuity is providing [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] Dedicated Dial-Up Access Ports as further described in
Attachment A to this Amendment. The term "Amended Dial-Up Purchase
Commitment" shall be substituted in lieu of the term "Dial-Up Purchase
Commitment" throughout the Agreement, effective from and after the
Amendment Effective Date.
4. DECOMMISSIONING. Section 8.2 of Schedule B of the Agreement is hereby
deleted and replaced in its entirety with the following:
"8.2. DECOMMISSIONING OF DEDICATED DIAL-UP ACCESS PORTS.
(a) REDUCTION OF OTHER VENDORS' DECOM SHARE. Beginning [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], Customer may decommission Dedicated
Dial-Up Access Ports that contribute to the satisfaction of
the Amended Dial-Up Purchase Commitment (that is, Customer
may (1) decommission any ports included in the Initial
Commitment (I.E., [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
Dedicated Dial-Up Access Ports); and (2) decommission any
number of ports that would cause the total number of ports to
fall below the Reduced Commitment (I.E., [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Dedicated Dial-Up Access Ports),
without liability, subject to the following:
(i) Customer will provide one hundred twenty (120) days
prior written notice of the calling areas in which
Dedicated Dial-Up Access Ports are to be
decommissioned, as well as the associated quantities
of Dedicated Dial-Up Access Ports to be decommissioned
in each such area (E.G., Customer may decommission
ports on [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
pursuant to this Section 8.2(a) as long as Customer
provides Vendor notice 120 days prior to such date);
(ii) the Vendor Decom Share for a calendar quarter shall
not (in the cumulative and not more than a de minimis
amount) exceed the Other Vendors' Decom Share for such
quarter;
(iii) the decommissioning of Dedicated Dial-Up Access Ports
pursuant to this Section 8.2(a) shall not materially
change Customer's proportional distribution of
Dedicated Dial-Up Access Ports across Existing Calling
Areas; and
(iv) if the decommissioning of Dedicated Dial-Up Access
Ports pursuant to this Section 8.2(a) causes the
aggregate number of Dial-Up Access Ports to fall below
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]
2
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
percent ([*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
%) of the number of Dedicated Dial-Up Access Ports
comprising the Initial Commitment (I.E., fewer than
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated
Dial-Up Access Ports), then Vendor may, upon six (6)
months' prior notice to Customer, terminate this
Schedule B. Commencing upon such termination, Vendor
shall provide Transition Assistance pursuant to
Section 13.4 of the Master Agreement.
(b) RAMP DOWN FROM INITIAL COMMITMENT TO REDUCED COMMITMENT.
Notwithstanding Section 8.2(a) of this Schedule B, beginning
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], Customer may
decommission Dedicated Dial-Up Access Ports in excess of the
Reduced Commitment (I.E., [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
Dedicated Dial-Up Access Ports), without liability, subject
to the following:
(i) Customer will provide one hundred twenty (120) days
prior written notice of the calling areas in which
Dedicated Dial-Up Access Ports are to be
decommissioned, as well as the associated quantities
of Dedicated Dial-Up Access Ports to be decommissioned
in each such area (E.G., Customer may decommission
ports on [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
pursuant to this Section 8.2(b) as long as Customer
provides Vendor notice 120 days prior to such date);
(ii) Customer will not decommission more than [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated
Dial-Up Access Ports per calendar month; and
(iii) the decommissioning of Dedicated Dial-Up Access Ports
pursuant to this Section 8.2(b) shall not materially
change Customer's proportional distribution of
Dedicated Dial-Up Access Ports across Existing Calling
Areas;
PROVIDED, HOWEVER, that AOL and Genuity agree to meet in
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to begin discussing
and negotiating in good faith a plan for implementing the
decommissioning, if any.
(c) REDUCTION OF DEDICATED DIAL-UP ACCESS PORTS IN EXCESS OF
AMENDED DIAL-UP PURCHASE COMMITMENT. Notwithstanding Sections
8.2(a) and 8.2(b) of this Schedule B, Customer may
decommission any Dedicated Dial-Up Access Ports ordered in
excess of those necessary to satisfy the Amended Dial-Up
Purchase Commitment, without liability subject to the
following:
(i) Customer will provide one hundred twenty (120) days
prior written notice of the calling areas in which
Dedicated Dial-Up Access Ports are to be
decommissioned, as well as the associated quantities
of Dedicated Dial-Up Access Ports to be decommissioned
in each such area;
(ii) Customer may decommission Dedicated Dial-Up Access
Ports pursuant this Section 8.2(c) only to the extent
that the first day of the month in which Final
Acceptance occurred for such ports is at least twelve
(12) months prior to the decommissioning date
requested by Customer pursuant to this Subsection (c);
(iii) Customer will not decommission more than [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated
Dial-Up Access Ports per calendar month; and
3
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
(iv) the decommissioning of Dedicated Dial-Up Access Ports
pursuant to this Section 8.2(c) shall not materially
change Customer's proportional distribution of
Dedicated Dial-Up Access Ports across Existing Calling
Areas.
(d) Customer shall not be responsible for any charges for a
Dedicated Dial-Up Access Port to the extent such charges
correspond to the time after the requested decommissioning
date of which Customer provides Vendor with notification
pursuant to this Schedule B."
5. AMENDED OTHER SERVICES PURCHASE COMMITMENT. Schedule D of the Agreement
is hereby deleted and replaced in its entirety with the following:
"1. AMENDED OTHER SERVICES PURCHASE COMMITMENT. During the period
beginning on the Amendment Effective Date and ending on December 31,
2005 ("OTHER SERVICES TERM"), Customer or a Customer Affiliate
agrees to order from Vendor services (excluding Dial-Up Access
Services, Broadband Backhaul Services for DSL and Dial-Up Access
Services provided outside of the United States) (such services to be
ordered the "OTHER SERVICES") such that the aggregate charges paid
to Vendor and Vendor's Affiliates for such Other Services are equal
to or greater [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (subject to the provisions
of this Section 1 and as set forth in Section 2 below) (such
commitment the "AMENDED OTHER SERVICES PURCHASE COMMITMENT");
PROVIDED, HOWEVER, that the Amended Other Services Purchase
Commitment shall be subject to the following:
(a) AVAILABILITY OF SERVICES AND QUARTERLY UPDATES. Vendor hereby
agrees that (i) the Other Services set forth in Exhibits D-1
and D-2 attached hereto (as may be amended by Vendor from
time to time) shall be available for ordering by Customer and
any Customer Affiliate during the Other Services Term, (ii)
during the first calendar month of each calendar quarter
during the Other Services Term, Vendor shall provide to
Customer an updated list of Other Services available for
ordering by Customer and any Customer Affiliate during the
Other Services Term ("QUARTERLY SERVICES UPDATE"); and (iii)
any Other Service which Vendor offers or provides, or is able
to offer or provide, on or after the Amendment Effective Date
shall be available for ordering by Customer and any Customer
Affiliate during the Other Services Term; PROVIDED, HOWEVER,
that subject to Section 1(b) below, nothing herein shall
prevent Vendor from discontinuing the offering of any of the
Other Services set forth in Exhibits D-1 and D-2 or in any
Quarterly Services Update.
(b) DISCONTINUANCE OF PRIMARY SERVICES. In the event that Vendor
discontinues, during the Other Services Term, offering any of
the Primary Services (as defined below), then such
discontinued Primary Service shall still be deemed to be an
Available Service (as defined below), and to the extent
Customer or any Customer Affiliate subsequently orders Third
Party Replacement Services (as defined below) from a third
party vendor any time during the Other Services Term, then
upon the provision of notice to Vendor (and to Vendor's
designated Account Manager) in accordance with Section 16.4
of the Master Agreement:
(i) The Amended Other Services Purchase Commitment shall
be [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] as of the
date on which Customer places a firm order for Third
Party Replacement Services, [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] PROVIDED, HOWEVER, that (A)
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] in the
Amended Other Services Purchase Commitment shall be
verified (and adjusted, as necessary) as of the end of
each Biannual Period immediately following the
Biannual Period in which a firm order is placed by
Customer or a Customer Affiliate for the applicable
Third Party Replacement Services (or sooner to the
extent provided for in Section 2(c)(i) below); and (B)
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall be equal
to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] and for
which (1) Customer has been [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN
4
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
APPLICATION FOR CONFIDENTIAL TREATMENT] or (2) in the
case of leased services, Customer has, at a minimum,
received its [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
as certified by an officer of Customer (Vice President
level or higher), with such certification to be
accompanied by [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
to allow Vendor to calculate and ascertain the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] provided that
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] as appropriate
in Customer's sole discretion. In the event Customer
has recurring payment obligations for Third Party
Replacement Services provided on a recurring basis
(E.G., leased services), [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] shall contribute to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] the Amended
Other Services Purchase Commitment for the Biannual
Period [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
even if Customer [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] beyond the period [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] the end of the Biannual Period
in which such Third Party Replacement Services are
ordered.
(ii) No [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] the Amended
Other Services Purchase Commitment shall be made with
respect to any of the Primary Services that are
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] which are
discontinued by Vendor or a Vendor Affiliate because
the provision of such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] causes Vendor or a Vendor
Affiliate to be subject to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] as a provider of [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] if such Vendor
or Vendor Affiliate is not otherwise subject to such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT].
(iii) The parties agree that for purposes of this Section
1(b), notice may be provided by email under Section
16.4 of the Master Agreement and shall be deemed duly
received upon receipt.
(c) FULFILLMENT OF AMENDED OTHER SERVICES PURCHASE COMMITMENT. To
fulfill its Amended Other Services Purchase Commitment,
Customer or a Customer Affiliate may request the provision by
Vendor of an Available Service (that is Other Services (x)
set forth in Exhibits D-1 and D-2 attached hereto (for
example, purchases by [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall contribute to
the Amended Other Services Commitment, provided [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] is a then-current Customer
Affiliate), (y) set forth in any Quarterly Services Update,
or (z) which Vendor offers or provides, or is able to offer
or provide, on or after the Amendment Effective Date (for
example, purchases by [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] for
any service which Vendor offers or provides or is able to
offer or provide Services shall contribute to the Amended
Other Services Commitment, provided [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] is a then-current Customer Affiliate); PROVIDED,
HOWEVER, that if any of the Other Services set forth in
Exhibits D-1 or D-2 or in any Quarterly Update contain (i) a
[*MATERIAL OMITTED
5
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] or (ii) a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] shall be available as an offering to Customer,
then Customer may only request such Other Services in such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or[*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (subject to the terms and conditions contained in
Exhibits D-1 and D-2 and in any Quarterly Services Update).
In the event no specific city for certain Other Services is
listed in Exhibits D-1 or D-2 or in any Quarterly Services
Update, Vendor will offer such services only [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] unless otherwise specified. In the
event no specific [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] for
certain Other Services is listed in Exhibits D-1 or D-2 or in
any Quarterly Services Update, Vendor will offer such
services as of the Amendment Effective Date (for Other
Services listed on Exhibits D-1 and D-2) and as of the date
of the Quarterly Services Update (for Other Services offered
by Vendor after the Amendment Effective Date). For avoidance
of doubt, Customer may request end-to-end Services to and
from specific geographic locations (such as, by way of
example, to and from certain POPs or colocation facilities)
which are not listed on Exhibit D-2 and such Services shall
contribute to Customer's Amended Other Services Purchase
Commitment, provided such Services are offered by Vendor in
the specific city in which the POP or colocation facility is
located.
(d) PROCESS FOR REQUESTING SERVICES; MARKET COMPETITIVE PRICING
FOR PRIMARY SERVICES. At any time during the Other Services
Term, Customer may provide notice to Vendor (and to Vendor's
designated Account Manager), in accordance with Section 16.4
of the Master Agreement, of a request that Vendor present
Customer with an offer to provide a particular type of
Service set forth in Exhibits D-1 and D-2 or in a Quarterly
Services Update (each such notice an "OTHER SERVICES REQUEST
NOTICE"). In each Other Services Request Notice, Customer
shall provide Vendor with sufficient information regarding
Customer's [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] and, if
applicable, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] requirements to
enable Vendor to present a competitive offer for the
requested Service. To the extent feasible and subject to
confidentiality restrictions, the Other Services Request
Notice shall also include additional information that
Customer has relating to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
(as defined below) sufficient to enable Vendor to present a
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (as defined below).
If the Service requested in the Other Services Request Notice
is an Available Service, then the following offer process
shall take place:
(i) Within fourteen (14) calendar days following receipt
by Vendor of an Other Services Request Notice (the
"REQUESTING PERIOD"), Vendor shall either (A) present
Customer with a written offer to provide the requested
Service, containing sufficient technical, business,
and pricing information to enable Customer to evaluate
the offer, or (B) notify Customer in writing that it
declines to bid on the Service, in which case, if the
Service is a Primary Service, the Amended Other
Services Purchase Commitment shall be subject to
reduction as specified in Section 1(e) below.
(ii) Within [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
following receipt of Vendor's written offer for the
Service (the "REVIEW PERIOD"), Customer shall provide
Vendor with written notice (a "FIRST RESPONSE NOTICE")
indicating whether Customer accepts or declines
Vendor's offer. In the event Customer declines
Vendor's offer because of a reasonable determination
solely by Customer that Vendor's offer is not a
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] then Customer
shall include in the First Response Notice sufficient
additional technical, [*MATERIAL OMITTED AND
6
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] and [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] information (including
applicable [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
information in Customer's possession) (to the extent
feasible and subject to confidentiality restrictions)
to enable Vendor (A) to ascertain the validity of the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] information in
Customer's possession, and (B) to make, in Vendor's
discretion, such adjustments to its initial offer to
make it a [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT].
(iii) Within [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
following receipt of a First Response Notice from
Customer (the "ADJUSTMENT PERIOD"), Vendor shall
either (A) present Customer with an adjusted written
offer ("SECOND BID") to provide the requested Service,
or (B) notify Customer in writing that it declines to
submit a Second Bid, in which case, if the Service is
a Primary Service, the Amended Other Services Purchase
Commitment shall be subject to reduction as specified
in Section 1(e) below.
(iv) If Vendor presents a Second Bid during the Adjustment
Period, then within [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of receipt thereof, Customer shall provide
Vendor with written notice (a "SECOND RESPONSE
NOTICE") indicating whether Customer accepts or
declines Vendor's Second Bid. In the event Customer
declines Vendor's Second Bid because of [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Customer that
Vendor's Second Bid is not a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] and if the Service is a
Primary Service, then the Amended Other Services
Purchase Commitment shall be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] as specified in Section 1(e)
below.
(v) The parties agree that for purposes of this Section
1(d), notice may be provided by email under Section
16.4 of the Master Agreement and shall be deemed duly
received upon receipt.
(e) NO BIDS AND NON-MARKET COMPETITIVE OFFERS FOR PRIMARY
SERVICES. In the event that Vendor receives an Other Services
Request Notice for a Primary Service during the Other
Services Term, and (i) Vendor declines to present an offer
for such Primary Service during the Requesting Period, (ii)
Vendor declines to submit a Second Bid for such Primary
Service during the Adjustment Period, or (iii) Customer
declines Vendor's Second Bid for such Primary Service because
of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Customer that
Vendor's Second Bid is not a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (each such event a "THIRD PARTY SERVICE TRIGGERING
EVENT"), then to the extent that Customer or any Customer
Affiliate subsequently orders Third Party Replacement
Services from a third party vendor not later than [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] following the last day of the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] in which the Third
Party Service Triggering Event occurs, then upon the
provision of notice to Vendor (and to Vendor's designated
Account Manager) in accordance with Section 16.4 of the
Master Agreement:
(i) The Amended Other Services Purchase Commitment shall
be [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] as of the
date on which Customer places a firm order for Third
Party Replacement Services, by the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the Services ordered by
Customer or a Customer Affiliate from a third party
7
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
vendor for the provision of the applicable Third Party
Replacement Services; PROVIDED, HOWEVER, that (A) the
calculation of [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
in the Amended Other Services Purchase Commitment
shall [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (and
adjusted, as necessary) as of the end of each
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] immediately
following the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
in which a firm order is placed by Customer or a
Customer Affiliate for the applicable Third Party
Replacement Services (or sooner to the extent provided
for in Section 2(c)(i) below); and (B) the amount of
any such [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
in the Amended Other Services Purchase Commitment
shall be equal to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of the Third Party Replacement Services
ordered by Customer during the applicable [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] and for which
(1) Customer has been invoiced by the third party
vendor [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
following the end of such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] or (2) in the case of leased
services, Customer has, at a minimum, received its
initial invoice from the third party vendor within
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] following the
end of such[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], as certified by an officer of Customer
(Vice President level or higher), with such
certification to be accompanied by [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] reasonably sufficient to allow
Vendor to calculate and ascertain the amount
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] in the Amended
Other Services Purchase Commitment (including, without
limitation, information and documentation [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], if
applicable), provided that [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]. In the event Customer has
recurring payment obligations for Third Party
Replacement Services provided on a recurring basis
(E.G., leased services), [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] such Third Party Services
shall [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the
Amended Other Services Purchase Commitment for the
Biannual Period in which such invoice is received by
Customer, even if Customer is invoiced and/or
continues to be invoiced beyond the period ending
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] following the
end of the Biannual Period in which such Third Party
Replacement Services are ordered.
(ii) The parties agree that for purposes of this Section
1(e), notice may be provided by email under Section
16.4 of the Master Agreement and shall be deemed duly
received upon receipt.
(f) REDUCTION FOR FAILURE TO TIMELY OFFER SERVICES. In the event
Vendor is unable to offer an Other Service to Customer by (a)
the date specified in Exhibits D-1 or D-2 or in any Quarterly
Services Update (subject to the terms and conditions
contained in Exhibits D-1 and D-2 and in any Quarterly
Services Update) or (b) as of the Amendment Effective Date
(where no date is specified in Exhibits D-1 and D-2) or (c)
as of the date of the Quarterly Services Update (where no
date is specified for the Services therein) (such Service a
"DELAYED SERVICE"), then such Delayed Service shall still be
deemed to be an Available Service and to the extent Customer
or any Customer Affiliate subsequently purchases Third Party
Replacement Services from a third party vendor, any time
during the Other Services Term at which Vendor remains unable
to offer such Other Service to Customer and timely deliver,
then upon the provision of notice to Vendor (and to Vendor's
designated Account Manager) in accordance with Section 16.4
of the Master Agreement:
8
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
(i) The Amended Other Services Purchase Commitment shall
be [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] as of the
date on which Customer places a firm order for Third
Party Replacement Services, by the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the Services ordered by
Customer or a Customer Affiliate from a third party
vendor for the provision of the applicable Third Party
Replacement Services corresponding[*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]; PROVIDED, HOWEVER, that (A)
the calculation of any such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Amended Other Services
Purchase Commitment shall be verified (and adjusted,
as necessary) as of the end of each Biannual Period
immediately following the Biannual Period in which a
firm [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (or
sooner to the extent provided for in Section 2(c)(i)
below); and (B) the amount of [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Amended Other Services
Purchase Commitment shall be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Third Party Replacement
Services ordered by Customer during the applicable
Biannual Period and for which (1) Customer has been
invoiced by the third party vendor [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] following the end of such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or (2) in the
case of leased services, Customer has, at a minimum,
received its initial invoice from the third party
vendor [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
following the end of such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] as certified by an officer of
Customer (Vice President level or higher), with such
certification to be accompanied by [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] reasonably sufficient to allow
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to calculate
and ascertain the amount [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Amended Other Services
Purchase Commitment, provided that such [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall be
redacted as appropriate in Customer's sole discretion.
In the event Customer has recurring payment
obligations for Third Party Replacement Services
provided on a recurring basis (E.G., leased services),
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Third Party
Services shall contribute [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] the Amended Other Services
Purchase Commitment for the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in which such invoice is
received by Customer, even if Customer is invoiced
and/or continues to be invoiced beyond the period
ending [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
following the end of the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in which such Third Party
Replacement Services are ordered.
(ii) The parties agree that for purposes of this Section
1(f), notice may be provided by email under Section
16.4 of the Master Agreement and shall be deemed duly
received upon receipt.
2. PAYMENT FOR OTHER SERVICES.
(a) BIANNUAL PAYMENT AMOUNTS. Subject to other terms set forth in
this Agreement (including without limitation Customer's right
to reduce its Amended Other Services Purchase Commitment),
the aggregate annual dollar amount of Other Services ordered
by Customer from Vendor and/or Vendor's Affiliates during
each year of the Other Services Term shall be equal to
9
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
or greater than [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
dollars ($[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT]) per year for
calendar years 2002, 2003 and 2004 and equal to or greater
than [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] dollars ($[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]) for calendar year 2005; PROVIDED,
HOWEVER, that Customer agrees to order from Vendor a minimum
dollar amount of Other Services (subject to Customer's right
to reduce the Amended Other Services Purchase Commitment as
set forth in this Schedule D) in respect of each six (6)
month period in years 2002, 2003, 2004 and 2005 (each such
six (6) month period, a "BIANNUAL PERIOD") of each such
calendar year of the Other Services Term (each such payment
during a Biannual Period, a "BIANNUAL PAYMENT AMOUNT"), as
set forth in the table below:
----------------------------------------- --------------------------------
Biannual Period Biannual Payment Amount
(SIX MONTH PERIOD ENDING)
----------------------------------------- --------------------------------
June 30, 2002 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
December 31, 2002 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
June 30, 2003 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
December 31, 2003 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
June 30, 2004 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
December 31, 2004 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
June 30, 2005 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
December 31, 2005 $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------- --------------------------------
(B) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]. If the amount
ordered by Customer for Other Services pursuant to this
Schedule D during any Biannual Period [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] the Biannual Payment Amount for the corresponding
Biannual Period [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR
10
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
CONFIDENTIAL TREATMENT] then Vendor shall [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] toward the Biannual [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in the subsequent Biannual Period(s)
until the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL Treatment]. For avoidance of
doubt, the aggregate amount for any Other Services ordered in
the Biannual Period ending June 30, 2002 [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] for the Biannual Period ending
December 31, 2002 and the subsequent period, if such amount
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] dollars ($[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]).
(i) EXAMPLE: For example (and assuming [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in the Amended Other Services
Purchase Commitment), if during the Biannual Period
ending June 30, 2003, Customer has ordered from Vendor
$[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] in Other
Services, then [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
would be required by Customer in respect of such
Biannual Period, and the Customer would be entitled to
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] in the amount
of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] in orders
for Other Services [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] applicable Biannual Payment Amount of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] would be
applied toward the Biannual Payment Amount due for the
next Biannual Period ending December 31, 2003. If, at
the end of the next following Biannual Period ending
December 31, 2002 (and assuming [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] the Amended Other Services
Purchase Commitment), Customer has ordered [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] in Other
Services, then the Customer would be required to pay
Vendor [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
(as defined below) for such Biannual Period in the
amount of $[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
(I.E., $[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
orders for Other Services, plus $[*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] the previous Biannual Period,
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] applicable
Biannual Payment Amount of $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] and no [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] would remain for [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Biannual
Periods.
(C) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Subject to other
terms set forth in this Agreement, in the event (i) the
Biannual Payment Amount corresponding to an applicable
Biannual Period is greater than (ii) the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] orders from Customer to Vendor for
Other Services during the applicable Biannual Period, plus
(B) the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] Amended Other
Services Purchase Commitment [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] in the applicable Biannual Period in accordance
with the provisions of Sections 1(b), 1(e) and 1(f) of this
Schedule D, plus any [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (as
defined below) [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
date
11
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
(but excluding all amounts, [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
previously utilized[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]), plus
(C) any [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] that has been
carried forward from previous Biannual Periods (the aggregate
sum of (A), (B), and (C), collectively, [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] then Vendor may invoice Customer for
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] in an amount equal to
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] percent ([*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL Treatment]%) of the difference between the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] corresponding to the
applicable Biannual Period minus the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] for such Biannual Period [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] shall be calculated and invoiced in accordance
with the following procedures:
(i) Vendor shall provide Customer with an invoice for the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] for an
applicable Biannual Period within [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the end of the next
following Biannual Period, and Customer shall pay the
full amount, less any amounts disputed in good faith,
within [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
of receipt of such invoice. By way of example, the
invoice for the [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] for the Biannual Period ending June 30,
2002 shall be due on or before [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] provided Customer received the
invoice no later than [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]. In the event there is
complete certainty as to any or all of the amount
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Remedy owed to
Vendor at the end of any Biannual Period, then Vendor
may invoice Customer within [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] following the end of such
Biannual Period for payment of such certain amount.
For example (assuming no [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Amended Other Services
Purchase Commitment), if, in the Biannual Period
ending June 30, 2004, [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Customer does not order any
Other Services from Vendor, [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Customer is not invoiced (from
a third party vendor) for any Third Party Replacement
Services during the [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] Customer has no unutilized [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or unutilized
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] from previous
Biannual Periods, then Vendor may invoice Customer for
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] on or
before [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT].
(ii) In calculating the amount of the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in each Biannual Period, to
the extent that the [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] in the Amended Other Services Purchase
Commitment in accordance with Sections 1(b), 1(e) and
1(f) of this Schedule D, from the Amendment Effective
Date through the end of the applicable Biannual
Period, [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
that have actually been utilized
12
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
in [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] in any
Biannual Period from the Amendment Effective Date
through the end of the applicable Biannual Period,
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall be
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT].
(iii)[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] is final and
non-recoverable, and may not be used to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] payments owed by Customer
under this Schedule D or otherwise.
(d) MEETINGS. For the purpose of (i) determining the Other
Services Credit, the Commitment Reduction Credit, and/or the
Take or Pay Remedy, if any, (ii) preparing the applicable
Vendor invoice for the period following the conclusion of the
applicable Biannual Period, and (iii) reducing the likelihood
of an invoice or payment dispute, the parties agree to hold a
meeting [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] or before the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] following the end of each Biannual
Period. Each party shall nominate one senior officer of the
rank of Vice President or higher (or their designee) as its
representative at these meetings. These representatives shall
meet, at a mutually agreed location, and shall attempt in
good faith to agree on the appropriate calculations for
determining the Other Services Credit, the Commitment
Reduction Credit, and/or the Take or Pay Remedy, if any, for
the applicable Biannual Period. These representatives agree
to share necessary and appropriate information, including
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] information (to the
extent feasible and subject to confidentiality restrictions),
to enable each party to determine the appropriate invoice
amounts, including the applicable [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] to be included on the invoice for the applicable
Biannual Period.
3. Definitions.
(a) As used herein, "AVAILABLE SERVICE" means (i) any Service
made available by Vendor in accordance with Exhibits D-1and
D-2 as of the Amendment Effective Date; (ii) any Service made
available by Vendor after the Amendment Effective Date as
specified in any Quarterly Services Update; and (iii) any
Other Service which Vendor offers or provides, or is able to
offer or provide, on or after the Amendment Effective Date.
(b) As used herein, "COMPARABLE OTHER SERVICES" means any
services that are [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
Customer or which are [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
Customer pursuant to a bona fide response to a request for
proposal (RFP) or other solicitation by Customer, by a third
party vendor (not including a Customer Affiliate), that are
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] any Available Service
that may be requested by Customer from Vendor pursuant to an
Other Services Request Notice (including comparable
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] comparable [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] comparable [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] and other comparable[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]; PROVIDED, HOWEVER, that the Other Services
Request Notice and the RFP or other solicitation by Customer
to the third party vendor for the
12
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
Comparable Other Services [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT].
For avoidance of doubt, for purposes of determining whether a
service is a Comparable Other Service, Customer will
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (as set forth in the
RFP or other solicitation) [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT].
(c) As used herein, "MARKET COMPETITIVE OFFER" means, with
respect to a Customer request for the provision of certain
specified Other Services by Vendor by a specified delivery
date, a bona fide offer by Vendor to provide an Available
Service at [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT].
(d) As used herein, "MARKET COMPETITIVE PRICING" means the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] price offered to
Customer for Comparable Other Services; PROVIDED, HOWEVER,
that if the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] price offered
to Customer by a vendor of Comparable Other Services is (i) a
price that is [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] for
providing such Comparable Other Services, (ii) [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] for providing such Comparable Other
Services, (iii) [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] which
is intended to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] for
providing such Comparable Other Services, or (iv) a price
offered by [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], then such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] price shall not be
deemed valid Market Competitive Pricing.
(e) As used herein, "PRIMARY SERVICES" means any of those certain
Other Services that are (i) listed by city in Exhibit D-2, or
(ii) listed in any Quarterly Services Update and specifically
identified as "Exhibit D-2 Services" therein.
(f) As used herein, "THIRD PARTY REPLACEMENT SERVICES" means any
Comparable Other Services actually purchased by Customer or
any Customer Affiliate from a third party vendor that are
comparable to a Primary Service (i) which Vendor has
discontinued during the Other Services Term, (ii) for which
Vendor declines to present an offer during the Requesting
Period or declines to submit a Second Bid during the
Adjustment Period, (iii) for which Customer declines Vendor's
Second Bid because of [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] that
Vendor's Second Bid is not a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], or (iv) which is a Delayed Service.
4. Schedule D Dispute Resolution.
(a) EXECUTIVE ESCALATIONS. In the event any dispute arising out
of or related to any matter set forth in Schedule D as
amended hereby (including without limitation any dispute
relating to (i) the validity of a determination by Customer
that an offer is not a Market Competitive Offer, or (ii) the
validity or amount of any reduction by Customer in the
Amended Other Services Purchase Commitment) cannot be
resolved to the satisfaction of both parties, then each party
shall nominate one senior officer of the rank of Vice
President or higher (or their designee) as its representative
for purposes of attempting to resolve the dispute (the
"EXECUTIVE ESCALATIONS"). These representatives shall meet in
person and shall attempt in good faith to resolve the dispute
and agree to use good faith efforts to share suitable
information (to the extent feasible and subject to
confidentiality restrictions) that would reasonably enable
the parties to determine matters arising under Schedule D
(such as whether an offer is a Market Competitive Offer or
the validity or amount of any proposed reduction by
14
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
Customer in the Amended Other Services Purchase Commitment).
Such representatives shall meet, at a mutually agreed
location, within ten (10) business days from the date on
which either party delivers written notice of the need to
resolve any dispute pursuant to this Section 4(a) of Schedule
D. This procedure shall be a required prerequisite before
either party may seek resolution of the dispute through
arbitration under Section 4(b) below. The foregoing
notwithstanding, the parties may agree to pursue any other
additional mutually acceptable dispute resolution method, but
such pursuit shall not be construed to modify or eliminate
the prerequisite stated in this Section 4(a).
(b) BINDING ARBITRATION. The parties agree that to the extent a
dispute exists between them relating to the matters set forth
in Schedule D following the conclusion of the Executive
Escalations set forth in Section 4(a) of this Schedule D,
either party may demand, by written notice to the other
party, that such dispute be submitted to binding arbitration
by a single arbitrator.
(i) PROCEDURE FOR ARBITRATION. The arbitration shall be
conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association. The arbitration shall take place in New
York, New York. The arbitrator shall be an individual
knowledgeable in the provision of network services,
and shall be chosen by mutual agreement of the parties
within ten (10) days from the date of the initial
written demand for arbitration.
(ii) DISCOVERY. Discovery shall be permitted to the extent
set out in this paragraph, and shall be controlled by
the arbitrator. Each party may submit in writing to
the other party, and the other party shall respond to,
a maximum of any combination of thirty-five (35) (none
of which may have subparts) of the following:
Interrogatories, Demands to Produce Documents, or
Requests for Admission. Each party will be entitled to
take the oral deposition of one (1) representative of
the other party. Additional discovery may be permitted
upon only mutual agreement of the parties, or upon
order of the arbitrator for good cause shown. The
arbitrator shall require that all permitted discovery
be completed within forty-five (45) days of the
initial written demand for arbitration.
(iii) ARBITRATION HEARING. The arbitration hearing shall
commence within sixty (60) days of the initial written
demand for arbitration. The arbitrator shall rule on
the dispute by issuing a written opinion within thirty
(30) days after the close of the hearing. Judgment
upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
(iv) COSTS. Each party shall bear its own costs of the
arbitration. The parties shall split equally the fees
of the arbitration and the arbitrator.
(c) EQUITABLE REMEDIES. The parties agree that nothing in this
Section 4 shall be construed to prevent a party from
instituting litigation in a court of competent jurisdiction
to obtain preliminary injunctive relief or a temporary
restraining order, as appropriate under applicable law."
6. WITHHELD AMOUNTS. As full and final settlement of all invoice and payment
disputes with respect to Services rendered by Genuity through October 31,
2001, including without limitation all disputes relating to withheld
amounts, and arising out of the New Dial-Up Market Price proposed by AOL
on October 2, 2000 and subsequently disputed by Genuity (such disputes
shall be collectively referred to as "PRICING DISPUTES"), AOL will pay
Genuity [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
plus interest in the amount of [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] dollars
($[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]) on or before [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] by wire
transfer of immediately available funds.
15
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
7. INVOICING AND PAYMENT. With respect to Services rendered by Genuity on
and after November 1, 2001, Genuity shall invoice for such Services and
AOL shall pay such invoices in accordance with the terms of Section 9 of
the Master Agreement (as amended hereby), and in accordance with the
pricing specified in Section 8 of this Amendment.
8. AMENDED PRICES FOR DEDICATED DIAL-UP ACCESS PORTS. The prices set forth
in Exhibit B-2 of the Agreement are hereby amended as follows:
8.1 through [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], the monthly recurring
charge for one (1) Dedicated Dial-Up Access Port will be as set
forth in the Agreement (that is: the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] Dedicated Dial-Up Access Ports as set forth in Section
2(b) of Exhibit B-2 of the Agreement; and the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] will be [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] per port for the
remaining [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up Access
Ports as set forth in Section 3 of Exhibit B-2 of the Agreement);
8.2 from and after [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT], the monthly recurring
charge for one (1) Dedicated Dial-Up Access Port (regardless of
whether or not such port is an Existing Dedicated Dial-Up Access
Port) (the "MONTHLY PORT CHARGE") will be as follows:
(a) from [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] through[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], the Monthly Port Charge will be
$[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] per port for the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up
Access Ports;
(b) from [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] through [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], the Monthly Port Charge will be
$[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] per port for the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up
Access Ports;
(c) from [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] through [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] , the Monthly Port Charge will be
$[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] per port for the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up
Access Ports, less the aggregate number of ports
decommissioned, if any, pursuant to the Agreement, as
amended; and
(d) from [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] through the remaining
Term of the Agreement, the Monthly Port Charge will be the
lower of $[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] per port for the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up
Access Ports (less the aggregate number of ports
decommissioned, if any, pursuant to the Agreement, as
amended) or the New Dial-Up Market Price per port for
16
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] Dedicated Dial-Up
Access Ports (less the aggregate number of ports
decommissioned, if any, pursuant to the Agreement, as
amended) as determined in accordance with Section 8.3(a) of
Schedule B of the Agreement.
9. MARKET PRICE. AOL and Genuity agree that the earliest date that a market
price adjustment pursuant to Section 8.3(a) of Schedule B of the
Agreement may take effect is [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] and that the
earliest date that AOL may provide Genuity with a New Dial-Up Market
Price Notice is [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT].
10. RELEASE OF CLAIMS.
10.1 Upon execution of this Amendment, Genuity on behalf of itself and
all of its officers, directors, stockholders, employees, agents,
successors, assigns, parent and subsidiary corporations, and related
entities and affiliates (collectively, the "GENUITY RELEASING
PARTIES"), hereby releases and irrevocably discharges AOL and all of
AOL's officers, directors, stockholders, employees, agents,
successors, assigns, parent and subsidiary corporations, and related
entities and affiliates (collectively, the "AOL RELEASED PARTIES")
from any and all complaints, claims, causes of action, suits, costs,
losses, liabilities, damages, and demands of any kind, whether known
or unknown (collectively, "CLAIMS"), which any of the Genuity
Releasing Parties has alleged or could have alleged against any of
the AOL Released Parties as of the Amendment Effective Date, which
relate to, or arise from the subject matter of, the Released
International Purchase Commitment, the Released Dial-Up Purchase
Commitment, the Released Other Broadband Purchase Commitment and the
Pricing Disputes (collectively, the "RELEASED CLAIMS").
10.2 Upon execution of this Amendment, AOL, on behalf of itself and all
of its officers, directors, stockholders, employees, agents,
successors, assigns, parent and subsidiary corporations, and related
entities and affiliates (collectively, the "AOL RELEASING PARTIES"),
hereby releases and irrevocably discharges Genuity and all of
Genuity's officers, directors, stockholders, employees, agents,
successors, assigns, parent and subsidiary corporations, and related
entities and affiliates (collectively, the "GENUITY RELEASED
PARTIES") from any and all Claims, which any of the AOL Releasing
Parties has alleged or could have alleged against any of the Genuity
Released Parties as of the Amendment Effective Date, which relate
to, or arise from the subject matter of, the Released Claims.
10.3 Nothing herein shall be construed to release or discharge any of the
AOL Released Parties or the Genuity Released Parties from any Claims
that do not relate to, or do not arise from the subject matter of
the Released Claims.
11. SUPPLIER PERFORMANCE. The following new Section 12.5 is added to the
Master Agreement:
"12.5 SUPPLIER PERFORMANCE. Vendor represents and warrants that it
will notify Customer if, in the sole determination of Vendor,
Vendor reasonably believes that the performance or
non-performance of any of Vendor's suppliers may have a
materially adverse impact on the ability of Vendor to meet
any Service Levels under the Agreement."
12. EFFECTIVENESS OF AGREEMENT. Except as expressly provided herein, nothing
in this Amendment shall be deemed to waive or modify any of the
provisions of the Agreement, or any amendment or addendum thereto. In the
event of any conflict between the Agreement, this Amendment or any other
amendment or addendum thereof, the document later in time shall prevail.
13. OTHER TERMS. Except as provided in this Amendment, all other terms and
conditions of the Agreement (including without limitation Section 8.3(b)
of Schedule B of the Agreement) shall remain in full force and effect,
and the parties hereto acknowledge that such terms and conditions are in
full force and effect as of the date hereof.
17
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.41
14. COUNTERPARTS AND FACSIMILE DELIVERY. This Amendment may be executed in
two or more counterparts, each of which shall be deemed an original and
all of which taken together shall be deemed to constitute one and the
same document. The parties may sign and deliver this Amendment by
facsimile transmission. Each party agrees that the delivery of the
Amendment by facsimile shall have the same force and effect as delivery
of original signature pages and that each party may use such facsimile
signatures as evidence of the execution and delivery of the Amendment by
all parties to the same extent that an original signature could be used.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to be signed and delivered by its duly authorized representative as of the
Amendment Effective Date.
America Online, Inc. Genuity Solutions Inc.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX
--------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
------------------------------ -------------------------------
Title: VP Business Affairs & Title: Senior Vice President, Network
Development Planning & Engineering
------------------------------ -------------------------------
Date: January 8, 2002 Date: January 8, 2002
------------------------------ -------------------------------
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