EXHIBIT 10.2
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED
BASED ON A REQUEST FOR CONFIDENTIAL TREATMENT
OMITTED PORTIONS HAVE BEEN SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION
EXECUTION VERSION
AMENDMENT NO. 2
TO
MEDIA GATEWAY SERVICES AGREEMENT III
THIS AMENDMENT NO 2. TO MEDIA GATEWAY SERVICES AGREEMENT III ("AMENDMENT")
dated as of November 1, 2000, by and among Qwest Communications Corporation, a
Delaware corporation ("QWEST"), Qwest Communications International Inc., a
Delaware corporation ("QCI") and KMC Telecom VI Inc., a Delaware corporation
("KMC").
WHEREAS, Qwest and KMC are parties to that certain Media Gateway Services
Agreement III, dated as of June 30, 2000 and as amended by Amendment No. 1,
dated as of August 31, 2000 (as so amended by Amendment No. 1 or otherwise
amended, modified or supplemented from time to time, the "MGS AGREEMENT")
pursuant to which, among other things, KMC has agreed to provide to Qwest, and
Qwest has agreed to compensate KMC for, certain services; and
WHEREAS, the parties have agreed to amend the MGS Agreement on the
following terms;
NOW, THEREFORE, in consideration of the premises set forth above, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, KMC, Qwest and QCI agree, jointly and severally, as
follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the MGS Agreement.
2. AMENDMENT TO THE MGS AGREEMENT. Effective as of the date first above
written and subject to the execution of this Amendment by the parties hereto,
the MGS Agreement shall be and hereby is amended as follows:
(a) The Definitions are hereby amended to include the following:
"QWEST COMMUNICATIONS INTERNATIONAL INC." shall mean a Delaware corporation
and the ultimate parent of Qwest Communications Corporation. Except when
otherwise specifically set forth in this Agreement "Qwest" shall mean Qwest
Communications Corporation and Qwest Communications International Inc.
(b) SECTION 3 C. is hereby amended by deleting the words "[TEXT
DELETED]" in the second line therein and substituting the words "[TEXT
DELETED]" therefore.
(c) SECTION 7.A is hereby amended by deleting the first two sentences
and substituting the words "This Agreement shall have an initial term
commencing on the Effective Date and ending fifty-one (51) months after May
1, 2001 unless earlier terminated pursuant to Section 9 b.,10, 14 or 16.
Each of the MGS Circuits listed in the Implementation Schedule shall have a
term that is fifty-one (51) months after the date such circuit was deemed
installed in accordance with Section 3. a. hereof, but shall continue at
the option of Qwest for an additional term to be specified in writing by
Qwest no later than 30 days prior to the expiration of the initial term."
In addition, SECTION 7 A. is hereby amended by deleting the words
"forty-two (42)" in the tenth line therein and substituting the words
"fifty-one (51)" therefore.
(c) SCHEDULE 1, PARAGRAPH 4 is hereby amended by deleting the words
"forty-two (42) months" in the second sentence therein and substituting the
words "fifty-one (51) months" therefore.
(d) APPENDIX A TO SCHEDULE 1, PARAGRAPH 2 is hereby amended by
deleting all references to "[TEXT DELETED]" in each of the second and
fourth sentences therein and substituting the words "[TEXT DELETED]" in
each of the second and fourth sentences therefore.
(e) APPENDIX A TO SCHEDULE 1 is hereby amended to add paragraph number
5 which shall state:
"5. Qwest shall be entitled to receive a credit equal to [TEXT
DELETED] of any payments or credits which KMC receives from
any provider of ingress or egress trunks for the MGS
Circuits. To the extent received from such provider, KMC
shall credit Qwest within [TEXT DELETED] of the end of each
calendar quarter during the Term. In the event any amount
received by KMC from a provider of ingress or egress is
required to be returned by KMC pursuant to a requirement of
law or order of any court or regulatory authority
("Forfeited Amount"), KMC shall have the right to xxxx Qwest
for [TEXT DELETED] of such Forfeited Amount, up to a maximum
of the total amount previously credited to Qwest under this
paragraph, and Qwest shall, within [TEXT DELETED], repay
such amounts to KMC."
3. REPRESENTATIONS AND WARRANTIES. Qwest, QCI and KMC respectively
represent and warrant as follows:
(a) This Amendment and the MGS Agreement, as amended hereby,
constitute legal, valid and binding obligations of Qwest, QCI and KMC and
are enforceable against such party in accordance with their terms.
(b) Upon the effectiveness of this Amendment, Qwest, QCI and KMC
hereby reaffirm all representations and warranties made in the MGS
Agreement, and to the extent the same are not amended hereby, agree that
all such representations and warranties shall be deemed to have been remade
as of the date of delivery of this
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Amendment, unless and to the extent that any such representation and
warranty is stated to relate solely to an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier
date.
(c) As of the date hereof, and after giving effect to this Amendment,
each of Qwest, QCI and KMC shall be in compliance with all the terms and
provisions set forth in the MGS Agreement, as amended hereby, on its part
to be observed or performed, and no Event of Default shall have occurred
and/or be continuing.
4. REFERENCE TO AND EFFECT ON THE MGS AGREEMENT.
(a) The MGS Agreement, as amended hereby, and all other documents,
instruments and agreements executed and/or delivered in connection
therewith, remains in full force and effect, and are hereby ratified and
confirmed.
(b) Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Qwest or KMC, nor constitute a waiver of any provision
of the MGS Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE OTHER REMAINING TERMS OF THE MGS AGREEMENT AND THE INTERNAL
LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
6. PARAGRAPH HEADINGS. The paragraph headings contained in this Amendment
are and shall be without substance, meaning or content of any kind whatsoever
and are not a part of the agreement among the parties hereto.
7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
KMC Telecom VI Inc.
By: /S/ XXXXXXX X. XXXXXXX
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Name: XXXXXXX X. XXXXXXX
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Title: CHIEF FINANCIAL OFFICER
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Qwest Communications Corporation
By: /S/ XXXX XXXX
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Name: XXXX XXXX
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Title: ASSOCIATE GENERAL COUNSEL AND ASSISTANT SECRETARY
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Qwest Communications International Inc.
By: /S/ XXXX XXXX
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Name: XXXX XXXX
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Title: ASSOCIATE GENERAL COUNSEL AND ASSISTANT SECRETARY
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