Exhibit 10.1
AMENDMENT FOUR
TO
REVISED VIRTUAL PRIVATE NETWORK SERVICES AGREEMENT
This Amendment is made as of November 19, 1998 by and between Concentric Network
Corporation ("CNC") and WebTV Networks, Inc. ("WNI"), for the purpose of
amending the Revised Virtual Private Network Services Agreement dated February
1, 1997 between the parties ("Agreement").
WHEREAS, the parties entered into the Agreement to provide WNI and its
customers with Internet access through CNC points of presence; and
WHEREAS, the Agreement has been amended on November 1, 1997 (Amendment
One), February 1, 1998 (Amendment Two), and May 30, l998 (Amendment Three)
(collectively, "Previous Amendments") to reflect pricing and other terms for
such services; and
WHEREAS, the parties wish to amend the Agreement (Amendment Four) to
address pricing and terms for the period November 1998 through December 31,
2000.
NOW, THEREFORE, the parties agree as follows:
1. Initially capitalized terms used herein shall have the same meaning as set
forth in the Agreement and Previous Amendments, except as otherwise
provided herein.
2. Section 2.6.2 of Amendment One to the Agreement is hereby amended by
striking "the calculation method in Section 5.1.3" and inserting "the
calculation method in Section 5.1.4."
3. Section 2.6.3(d) of Amendment One to the Agreement is hereby amended by
striking "the Virtual Port Fee in Section 5.1.4" and inserting "the Virtual
Port Fee in Section 5.1.1".
4. Section 4.1 of Amendment One to the Agreement is hereby amended by striking
Section 4.1 of Amendment One to the Agreement and inserting the following:
"4.1. Rolling Forecasts. Through [*]: (a) WNI shall provide CNC a
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non-binding rolling forecast of the Virtual Ports it anticipates it
will use, along with expected usage by Point of Presence, during the
ensuing [*] period; (b) CNC will provide WNI with a forecast of
capacity in each of CNC's Points of Presence for the upcoming [*];
and (c) CNC and WNI shall meet and discuss these forecasts and the
statistical information outlined in Section 3.4 on a [*] basis. [*]:
(a) [*], WNI shall provide CNC a non-binding rolling forecast of the
Virtual Ports it anticipates it will use, along with expected usage
by Point of Presence, during the ensuing [*] period; (b) on [*]
during the Term, WNI will provide CNC a binding proposed Virtual
Port Commitment, which shall not be less than the Virtual Port
Commitment set forth in
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Section 4.2.1, for the ensuing [*], and [*] periods, respectively;
(c) CNC will provide WNI a written response to WNI's non-binding
forecasts and proposed binding Virtual Port Commitment within
fifteen (15) days of receipt; (d) CNC and WNI shall meet and discuss
(i) the non-binding forecasts and the statistical information
outlined in Section 3.4 on a [*] basis and (ii) the proposed binding
Virtual Port Commitment and CNC's written response thereto and
mutually agree upon a final binding Virtual Port Commitment, to be
documented on the form attached as Exhibit F to the Agreement, which
will commit WNI to pay CNC for that number of Virtual Ports and will
commit CNC to provide WNI that number of Virtual Ports; and (e) CNC
will also provide WNI with a [*] site capacity report to assist WNI
in determining which Point of Presence sites will be able to best
support WNI's traffic and Virtual Port Commitment."
5. Section 4.2.1 of Amendment Three to the Agreement and Section 4.2.2 of
Amendment One to the Agreement are hereby amended by striking Section 4.2.1
of Amendment Three of the Agreement and Section 4.2.2 of Amendment One to
the Agreement and inserting the following, effective as of November 1,
1998:
"4.2.1. Commitments by Time Period. Virtual Port Commitments will be
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as in the table below, or as may be increased pursuant to Section
4.2.2. WNI shall use [*] to promptly provide CNC any additional
Virtual Port Commitments in excess of the table below for November and
December 1998, and CNC shall use [*] to accommodate and meet such
additional Virtual Port Commitments.
[*]
4.2.2. Increase in Virtual Port Commitment. WNI may propose an
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increase in its Virtual Port Commitment at any time upon submission of
Exhibit F to CNC either requesting an increase for the period in
question or documenting the proposed binding Virtual Port Commitment
pursuant to Section 4.1; provided, however, that any increase in
excess of [*] is subject to the approval of CNC, which will not be
unreasonably withheld. Any increases which are less than [*] will be
automatically accepted by CNC and deemed mutually agreed upon for
purposes of Section 4.1. Each Virtual Port Commitment Form that is
executed by the parties will be attached to the Agreement and numbered
in consecutive order as Exhibits X-0, X-0, X-0, etc. CNC shall
provide WNI a non-binding schedule to accommodate the increased
Virtual Port Commitment(s). For purposes of determining Virtual Port
Fees, any
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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increased Virtual Port Commitment will not become effective until
CNC provides WNI with notice that such additional capacity is
available."
6. Section 4.2.3 of Amendment Two to the Agreement is hereby amended by
deleting Section 4.2.3 of Amendment Two to the Agreement, effective
November 1, 1998.
7. Section 5.1.1 of Amendment One to the Agreement is hereby amended by
striking Section 5.1.1 of Amendment One to the Agreement and inserting the
following, effective as of November 1, 1998:
"5.1.1. Virtual Port Commitment. WNI shall pay CNC Virtual Port Fees
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as follows:
[*]
5.1.1.1. Billing Procedure for November December 1998. The Virtual
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Port Commitment will be billed in advance on the 1st of each month.
Additional Commitment, As Available and Hourly (as described in
Section 5.1.5) usage will be billed in arrears of the 1st of the month
following its usage.
[*]
[*]
5.1.1.2. Billing Procedure for Pricing Effective January 1999. The
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Virtual Port Commitment will be billed in advance of the 1st of each
month. As Available and "Hourly" (as described in Section 5.1.5)
usage will be billed in arrears of the 1st of the month following its
usage.
[*]
8. Section 5.1.2 of Amendment One to the Agreement is hereby amended by
deleting Section 5.1.2 of Amendment One to the Agreement, effective
November 1, 1998.
9. Section 5.1.4 of Amendment One to the Agreement is hereby amended by adding
the following sentence to the end of Section 5.1.4 of Amendment One to the
Agreement:
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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"As Available connections are WNI's usage of Virtual Ports in a month
over the Virtual Port Commitment for such month, and for purposes of
calculating the As Available Virtual Port Fees for a month is
determined by subtracting the Virtual Port Commitment from the Average
Peak Use for such month."
10. Section 5.1.5 of Amendment One to the Agreement is hereby amended by
striking the table in Section 5.1.5 of Amendment One to the Agreement and
inserting the following table:
[*]
11. Section 5.2 of Amendment One to the Agreement is hereby amended by striking
Section 5.2 of Amendment One to the Agreement and inserting the following:
"5.2. Renegotiation. WNI and CNC agree to negotiate in good faith
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new pricing, terms, and conditions by [*] to be effective commencing
[*]. If the parties cannot agree on new pricing, terms and conditions
by [*], then beginning no earlier than January 1, 2001, either party
may, at its sole option any time thereafter, terminate this Agreement.
Upon termination, a 12-month minimum ramp-down period will begin.
During such ramp-down period, either the terminating party or the
other party (but not both) may reduce the Virtual Port Commitment by
no more than 833 Virtual Ports per month, or one twelfth (1/12) the
Virtual Port Commitment as of December 31, 2000, whichever is greater.
Once such a ramp-down period begins, the following Virtual Port Fees
will apply in lieu of those set forth in Section 0.0.0.:
[*]
12. Section 5.6 of Amendment One to the Agreement is hereby amended by striking
Section 5.6 of Amendment One to the Agreement and inserting the following,
effective as of November 1, 1998:
"5.6. Dedicated Access Facilities. Dedicated Access Facilities
connecting WNI's data center(s) to the CNC network will be the DS3
loop charges on a passthrough basis (approximately [*] per month for
the existing DS3 circuit that is being charged to CNC directly). WNI
may, at its option, order its own dedicated
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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access facilities and be charged for the telco loop charges directly
from the telco vendor. Monthly Virtual Port pricing includes any
monthly circuit usage charges (DS3 and OC3 port charges). No
additional usage charges or Virtual Port surcharges will apply for
backbone usage."
13. Section 6.2.1 of Amendment One to the Agreement is hereby amended by
striking Section 6.2.1 of Amendment One to the Agreement and inserting the
following:
"6.2.1. Termination At Will. At any time on or after October 31,
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2000, either party may terminate this Agreement, for any reason or
no reason, upon one hundred and twenty (120) days' notice."
14. The Agreement is hereby amended by incorporating Exhibit F to this
Amendment as Exhibit F to the Agreement.
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EXHIBIT F
VIRTUAL PORT COMMITMENT FORM
For the period
[ ] January through June [ ] 1999 [ ] 2000
Month Virtual Port Commitment
January ___________________________
February ___________________________
March ___________________________
April ___________________________
May ___________________________
June ___________________________
[ ] July through December [ ] 1999 [ ] 2000
Month Virtual Port Commitment
July ___________________________
August ___________________________
September ___________________________
October ___________________________
November ___________________________
December ___________________________
[ ] Optional increase in Virtual Port Commitment for the period __________
through _____________.
Month Virtual Port Commitment*
_________ ___________________________
_________ ___________________________
_________ ___________________________
*Requires CNC acceptance if greater than [*] of the current month's Virtual Port
Commitment pursuant to
Section 4.2.2.
This Virtual Port Commitment Form is effective only upon execution of this form
by the duly authorized representatives of CNC and WNI.
CONCENTRIC NETWORK CORPORATION WEBTV NETWORKS, INC.
By: ___________________________________ By: _________________________________
Printed Name: _________________________ Printed Name: _______________________
Title: ________________________________ Title: ______________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
