Exhibit 10.5
AMENDMENT NO. 4
This Amendment No. 4 ("Amendment 4") to the Service Provider Agreement dated the
15th day of March, 2000, and its Amendments No. 1 and 3 thereto, dated June 1,
2000 and March 1, 2001 respectively, (collectively the "Agreement") by and
between Cisco Systems, Inc. ("Cisco"), a California corporation having its
principal place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx
00000, and Cogent Communications, Inc. ("Service Provider"), a Delaware
corporation having its principal place of business at 0000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000, is entered as of the last date written below (the
"Effective Date").
WHEREAS Cisco and Service Provider entered into the Agreement and Amendment No.
1 thereto for the supply of certain products; and
WHEREAS Cisco proposed to Service Provider Amendment #2 as of January 19, 2001,
but which Amendment #2 did not become effective; and
WHEREAS Cisco and Service Provider entered into Amendment 3 regarding an
alternative arrangement related to the supply of such certain products; and
WHEREAS, the parties wish to amend the Agreement and the Amendments thereto by
executing this Amendment 4;
NOW THEREFORE, the parties agree as follows:
1. AGREEMENT. As of the Effective Date of this Amendment No. 4, the
Agreement shall be modified as set forth below.
1.1. Section 2.4.1 of the Agreement is deleted in its entirety and
replaced with the following:
"For the period beginning on the Effective Date of Amendment 4
and continuing for eighteen (18) months, Service Provider commits
to purchase 100% of its networking equipment from Cisco as its
preferred supplier. Notwithstanding such preferred supplier
arrangement, Service Provider may purchase from suppliers other
than Cisco any product (whether hardware or software) having a
material functionality or feature which is not available from
Cisco, unless Cisco can provide such functionality or feature at
a comparable price through another reasonable solution.
1.2. In the second sentence of Section 2.4.2, delete the phrase which
states, "Year 1 following the Effective Date [*]; Year 2
following the Effective Date [*]; Year 3 following the
Effective Date [*]; Year 4 following the Effective Date
[*]; and Year 5 following the Effective Date
[*]."' and replace it with the following:
"For the initial period beginning from the Effective Date of the
Agreement through December 31, 2001 - $152,600,000.00; for the
one year period beginning January 1, 2002 through December 31,
2002 - $29,500,000.00; for the one year period beginning
January 1, 2003 through December 31, 2003 - $42,400,000.00;
and for the one year period beginning January 1, 2004 through
December 31, 2004 - $45,500,000.00.
1.3. In the first sentence in Section 14.1 of Section 14 entitled,
"Term", shall be deleted in its entirety and replaced with the
following:
"This Agreement shall commence on the Effective Date and continue
thereafter until December 31, 2004."
CISCO CONFIDENTIAL 1
[*] Indicates confidential treatment requested.
1.4. At the end of Exhibit B, entitled "Discount Schedule", insert the
following:
"Service Provider understands that Cisco shall continue to extend
the discount of [*] percent of Cisco's then current Global List
Price for Cisco's 15454 product; provided, however, Service
Provider shall receive a discount of [*] percent off Cisco's
then-current Global List Price for all other metro optical
products."
2. Amendment 3. As of the Effective Date of this Amendment Xx. 0,
Xxxxxxxxx 0 xxxxx xx modified as set forth below:
2.1. Delete in its entirety the third sentence of Paragraph 1 of
Amendment 3 which begins with the words, "The price" and ends
with the words, "November 1, 2000" and replace it with the
following:
"The price for Channels 2-8 is [*] per channel."
2.2. Delete in its entirety Paragraph 2.b. of Amendment 3 which
begins with the words, "Service Provider" and ends with the
words, "October 15, 2001".
2.3. Delete in its entirety Paragraph 2.c. of Amendment 3 which begins
with the words, "Service Provider" and ends with the words,
"shipping location", and replace it with the following:
"Service Provider agrees to pay the net purchase price of [*] for
Channels 4-8 within thirty (30) days of the Effective Date of
this Amendment No. 4."
2.4. Delete in its entirety Section 3 of Amendment 3 which begins with
the words, "Pricing for Channels" and ends with the words, "of
the Agreement".
3. ADDITIONAL TERMS.
3.1. Cisco agrees to extend to Service Provider a credit in the
amount of [*] which may be applied toward invoices for Cisco
Professional Services which are currently outstanding, but within
the Net 30 window or which become outstanding during the period
beginning from the Effective Date of this Amendment 4 through
December 31, 2001; provided, however, that in the event Service
Provider does not use such credit on or before December 31, 2001,
such credit shall be forfeited.
3.2. The parties agree that the letter dated December 22, 2000 from
Xxxx Xxxxxxxx on behalf of Cisco shall be rendered null and void
as of the Effective Date of this Amendment 4.
4. ALL OTHER TERMS AND CONDITIONS. All other terms and conditions of the
Agreement, Amendment 1 and Amendment 3 shall remain unchanged and in
full force and effect.
IN WITNESS THEREOF, the parties have caused this Amendment 4 to be duly
executed. Each Party warrants and represents that its respective signatories
whose signatures appear below have been and are on the date of signature duly
authorized to execute this Amendment 4.
COGENT COMMUNICATIONS, INC. CISCO SYSTEMS, INC.
("Service Provider") ("Cisco")
CISCO CONFIDENTIAL 2
[*] Indicates confidential treatment requested.
Signature /s/ XXXX XXXXXXXXX Signature /s/ XXXX XXXXXXXXXXX
Name Xxxx Xxxxxxxxx Name Xxxx Xxxxxxxxxxx
Title CEO Title Controller
Date Date 11/16/01
CISCO CONFIDENTIAL 3
