EXHIBIT 10.3
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. 3
TO
MEDIA GATEWAY SERVICES AGREEMENT III
THIS AMENDMENT NO 3. TO MEDIA GATEWAY SERVICES AGREEMENT III ("AMENDMENT")
dated as of March 1, 2001, is by and among Qwest Communications Corporation, a
Delaware corporation ("QCC"), Qwest Communications International Inc., a
Delaware corporation ("QCI") ("QCC" and "QCI" being collectively defined as
"Qwest") 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 and Amendment No. 2, dated as of November 1, 2000
(as so amended by Amendments No. 1 and No. 2 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 and Qwest agree 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) APPENDIX A TO SCHEDULE 1 is hereby amended to read in its entirety
as follows:
"5. Qwest shall be entitled to receive a cash payment 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 pay 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 bill Qwest for
[TEXT DELETED] of such Forfeited Amount, up to a maximum of the
total amount previously paid to Qwest under this paragraph, and
Qwest shall, within [TEXT DELETED], repay such amounts to KMC."
3. 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.
4. 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.
5. 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.
6. 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/ CONSTANCE LOOSEMORE
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Name: CONSTANCE LOOSEMORE
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Title: --------------------
Qwest Communications Corporation
By: /S/ RICK WESTON
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Name: RICK WESTON
---------------------
Title: SVP-QIS
--------------------
Qwest Communications International Inc.
By: /S/ YASH RANA
-----------------------
Name: YASH RANA
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Title: ASSOCIATE GENERAL COUNCIL
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Agreed and Consented to:
Dresdner Kleinwort Benson North America Leasing, Inc.
By: /S/ JAY MATHEWSON /S/ ERIC DOLLMAN
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Name: JAY MATHEWSON ERIC DOLLMAN
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Title: PRESIDENT ASSISTANT VICE PRESIDENT
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