EXHIBIT 10.21.1
Qwest Communications Corporation
Confidential & Proprietary
FIRST AMENDMENT TO THE PRIVATE LINE SERVICES AGREEMENT
This First Amendment to the Private Line Services Agreement No. PL
0000337-9806-01-01 (the "First Amendment") is made and entered into as of this
29th day of June, 1999 (the "First Amendment's Effective Date"), by and between
Qwest Communications Corporation ("Qwest") and Electric Lightwave, Inc. ("ELI").
WHEREAS, Qwest and ELI previously entered into a Private Line Services Agreement
No. PL 0000337-9806-01-01 (the "Agreement");
WHEREAS, Qwest and ELI now wish to amend the Agreement to revise certain pricing
and other terms and conditions described therein, including but not limited to
termination of certain leased circuits currently being provisioned under the
Agreement in consideration of ELI's purchase of certain IRU rights from Qwest in
those circuits, all as more particularly set forth below; and
WHEREAS, this First Amendment is also intended to resolve certain bona fide
disputes existing between the Parties under the Agreement;
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Qwest and ELI agree as follows:
1. For all new Service Orders provisioned after the First Amendment's
Effective Date and any existing Service Orders installed currently, the
following Base IXC Rates described in Table 1 shall be applicable in
determining ELI's applicable Monthly Recurring Charges for said
Facilities. The Table 1 Rates are in lieu of the rates and charges set
forth in Section 3(a)-(c) of Exhibit A to the Agreement. All other
charges authorized by the Agreement, including but not limited to those
charges set forth in Section 3.1 (d) ("Other Charges"), shall continue
to apply. Any failure on the part of Qwest to invoice these revised Base
IXC Rates as of the First Amendment's Effective Date shall be remedied
by a lump sum credit amount on ELI's subsequent invoices.
Table 1 Base IXC Rates (Per DS-0 V&H Mile)
DS-1 $*
DS-3 $*
OC-3 $*
OC-12 $*
* Material has been omitted pursuant to a request for confidential treatment.
2. Notwithstanding Section 1 above and in consideration of the release
provided for in Section 7 below, Customer shall be eligible to receive
certain promotional pricing as set forth in Table 2 below for new
Facilities ordered after the First Amendment's Effective Date only. The
Table 2 Promotional Base IXC Rates are in lieu of the rates and charges
set forth in Sections 3(a)-(c) of Exhibit A to the Agreement and Section
1 of this First Amendment. The Table 2 Promotional Base IXC Rates shall
be in effect for a period not to exceed six (6) months from the Start of
Service Date applicable to each such new Facility. As of the expiration
of this six (6) month period, the monthly recurring rates applicable to
each such new Facility shall revert to the Base IXC Rates set forth in
Table 1 above. In order to receive the Table 2 Promotional Base IXC
Rates, Customer agrees to a Facility Minimum Service Term of no less
than eighteen (18) months from the applicable Start of Service Date for
each such new Facility installed by Qwest pursuant to the Agreement.
Table 2 Promotional Base IXC Rates (Per DS-0 V&H
Mile)
DS-3 $*
OC-3 $*
OC-12 $*
In addition, upon ELI's notice to Qwest given no later than December 15,
1999, ELI shall be eligible to receive a one-time credit equal to one
(1) months' monthly recurring charges associated with private line
services invoiced under the Agreement, exclusive of all applicable
taxes, surcharges, and interconnection fees (access). Pursuant to this
paragraph, ELI shall be entitled to select the month for the basis of
this credit, provided, however, that the applicable months from which it
may choose its one free month must be limited to those months remaining
in calendar year 1999 following the First Amendment's Effective Date.
3. For the six (6) month period following the First Amendment's Effective
Date, the parties hereby agree that Qwest's obligations relating to
installation intervals for new Facilities, and all associated Customer
remedies relating to same, including without limitation, the specific
obligations set forth in Section 8.1(B) of the Agreement, Section 1.2 of
Exhibit A to the Agreement, and Schedule A-2 of Exhibit A to the
Agreement (the "Interim Provisioning Period") shall not apply. During
the Interim Provisioning Period and upon acceptance of a Service Order,
Qwest shall notify ELI of its target date for the delivery of each such
new Facility (the "Estimated Availability Date"). Any Estimated
Availability Date given by Qwest to ELI shall be subject to Qwest's then
current standard intervals. Qwest shall use reasonable efforts to
install each such new Facility on or before the Estimated Availability
Date. During the Interim Provisioning Period, however, Qwest's inability
to deliver a new Facility by the Estimated Availability Date shall not
be deemed Default under the Agreement. Following the Interim
Provisioning Period, the parties hereby agree that the suspension of the
provisioning obligations set forth in Section 8.1(B) of the Agreement,
Section 1.2 of Exhibit A to the Agreement, and Schedule A-2 of Exhibit A
to the Agreement shall cease and thereafter be in full force and effect;
provided, however, that any remedy associated with same shall not apply
to Facilities installed as of the expiration of the Interim Provisioning
Period.
* Material has been omitted pursuant to a request for confidential treatment.
4. During the Interim Provisioning Period, the parties hereby agree that
ELI's obligations relating to minimum revenue requirements reflected in
Table A-1 of Exhibit A to the Agreement shall be suspended. Following
the Interim Provisioning Period, the parties hereby agree that the
suspension of ELI's obligations set forth in Table A-1 of Exhibit A to
the Agreement (as amended by Section 9 herein) shall cease and
thereafter be in full force and effect.
5. Section 4.6 of Exhibit A to the Agreement and all references thereto, if
any, are hereby deleted in their entirety. Other than the one-time
pricing revisions set forth in Sections 1 and 2 above, Qwest is under no
further obligation to revise in the future the rates and other charges
applicable to the Facilities installed hereunder in the absence of a
mutually agreed upon written amendment to the Agreement modifying said
rates and other charges.
6. Following the First Amendment's Effective Date, in the event ELI
receives a Competitive Offer from an Alternative Carrier that contains
an Aggregate Price below the Facility rates and other charges described
herein applicable to a new Facility requested by ELI hereunder, then
Qwest may elect, within its discretion, to: (i) match the Competitive
Offer; (ii) provision the requested Facility at an alternative mutually
agreeable price; or (iii) declines to accept ELI's requested Service
Order. If Qwest declines to accept the requested Service Order pursuant
to this Section 6(iii) above, then ELI shall be entitled to a reduction
of its applicable Quarterly Revenue Commitment and total Revenue
Commitment in the event ELI purchases said requested Facility from the
Alternative Carrier. The applicable Quarterly Revenue Commitment shall
be reduced by the monthly Aggregate Price for said Facility, and the
applicable total Revenue Commitment shall be reduced by the product of
the monthly Aggregate Price multiplied by the number of months in the
minimum service term for the requested Facility, all conditioned upon
ELI providing Qwest with valid invoices reflecting the ordering of said
services from the Alternative Carrier.
In order for ELI to exercise its rights under this Section 6, ELI must
provide Qwest with a written copy of the original Competitive Offer
within sixty (60) days of its receipt by ELI (or, in the case where such
an offer is subject to confidentiality, a sworn officer's certificate,
in a form reasonably satisfactory to Qwest, certifying the terms of the
Competitive Offer). As used in this Section 6, "Competitive Offer" is
defined as a binding offer that: (i) is from a licensed interexchange
carrier ("Alternative Carrier"); (ii) contains an "Aggregate Price" that
is at least five percent (5%) lower than the total price that would be
charged by Qwest to provision the Facility under the terms of the
Agreement; (iii) provides for a Facility of the type that would be
provisioned by Qwest hereunder; and (iv) contains terms and conditions
that do not materially differ from those of this Agreement, except that
with respect to a minimum monthly recurring charge requirement and term,
such terms and conditions must be identical to those of this Agreement.
As used herein, "Aggregate Price" shall be defined as the total price
(including pass-through access/egress (or related) charges imposed by
third parties (such as LECs), any monthly recurring charges,
non-recurring charges, taxes, surcharges and any and all other
applicable charges) that would be charged to ELI by an Alternative
Carrier for the requested Facility.
7. *
8. Upon the First Amendment's Effective Date, Qwest shall cease
provisioning the following currently installed OC-3 Facilities
(hereinafter the "Terminated Leased Facilities"). Upon said termination,
ELI shall be without further obligation for payment of all Rates and
Charges applicable to the Terminated Leased Facilities; provided,
however, that ELI shall be responsible for all Rates and Charges
applicable to the Terminated Leased Facilities that have accrued prior
to the First Amendment's Effective Date:
Chicago to Washington DC ID# EIP000005NDN
Chicago to Salt Lake City ID# EIP000003NDN
9. Upon the First Amendment's Effective Date, ELI's Revenue Commitment and
Quarterly Revenue Commitment, as reflected in Table A-1 of Exhibit A to
the Agreement, shall be revised downward as follows:
Take-or-Pay Commitment
- --------------------------------------------------------------------------------
Effective Date Quarterly Number of
Commitment Quarters Total
- --------------------------------------------------------------------------------
07/01/99 to 12/31/07 2,647,058.82 34 $90,000,000.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total Revenue Commitment $90,000,000.00
- --------------------------------------------------------------------------------
10.As a condition precedent to the reduction of the Quarterly Revenue
Commitment and the Revenue Commitment described in this First Amendment,
ELI agrees to execute a separate Qwest IRU agreement ("IRU Agreement"),
which shall provide for ELI's purchase of an IRU from Qwest in the
Terminated Leased Facilities. The parties hereby agree that the terms
and conditions of this Agreement shall no longer apply to the Terminated
Leased Facilities as of the First Amendment's Effective Date, and
further, the terms and conditions of the IRU Agreement only shall govern
with respect to Qwest's provisioning of the Terminated Leased Facilities
thereafter. The applicable IRU fee associated with said IRU Agreement
shall not contribute to either the Quarterly Commitment or the total
Revenue Commitment provided for in the Agreement.
11.This First Amendment may be executed in counterparts and by different
parties hereto in separate counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same instrument.
12.Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Agreement. Further, each reference in
the Agreement to "Agreement", "hereof", "hereunder" or words of like
import, and all references to the Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every
kind and nature, shall be deemed to mean the Agreement as modified and
amended by this First Amendment.
13.The Agreement, as expressly amended by this First Amendment, constitutes
the entire agreement of the parties hereto. All terms and conditions of
the Agreement not expressly amended or modified herein shall continue to
be in full force and effect and are hereby confirmed and ratified. In
the event the terms of this First Amendment conflict with the terms of
the Agreement, the terms of this First Amendment shall control.
* Material has been omitted pursuant to a request for confidential treatment.
IN WITNESS WHEREOF the parties hereto have caused this First Amendment
to be duly executed as of the date first written above.
QWEST COMMUNICATIONS CORPORATION
By: /s/ Greg Casey
Name: Greg Casey
Title: Sr. V.P. - Wholesale Markets
ELECTRIC LIGHTWAVE, Inc.
By: /s/ David B. Sharkey
Name: David B. Sharkey
Title: President and C.O.O.