MCI WORLDCOM NETWORK SERVICES, INC.
AMENDMENT NO. 2
This Amendment No. 2 is made this 14th day of September, 2000, by and
between GTC Telecom, Inc. (successor-in-interest to Genx, L.L.C., d/b/a
Preferred Discount Plan) ("CUSTOMER") and MCI WORLDCOM Network Services, Inc.
(successor-in-interest to WorldCom Network Services, Inc.) ("MCI WORLDCOM"), to
those certain Program Enrollment Terms (the "PET"), to that certain
Telecommunications Services Agreement more particularly described as TSA#
GNX-991201 (the "TSA"), made by and between Customer and MCI WorldCom dated
August 20, 1999, including that certain Amendment No. 1 dated February 9, 2000.
In the event of any conflict between the terms of the TSA, the PET, Amendment
No. 1 or any applicable Attachment and the terms of this Amendment No. 2, the
terms of this Amendment No. 2 shall control. The TSA along with the PET,
Amendment No. 1, all applicable Attachment(s), and this Amendment No. 2 shall
collectively be referred to as the "AGREEMENT". Capitalized terms not defined
herein shall have the meaning ascribed to them in other documents referenced
herein.
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SERVICE TERM. As of August 1, 2000, the parties agree to substitute
Section 1 of the PET to read in its entirety as follows:
1. SERVICE TERM: This Agreement shall commence as of December 1, 1999
[NOTE: THIS DATE SHOULD BE THE ORIGINAL EFFECTIVE DATE.] (the "EFFECTIVE DATE"),
and shall continue through and include November 1, 2003 (the "SERVICE TERM").
Upon expiration of the Service Term, the Switched Services in question will
continue to be provided pursuant to the same terms and conditions as are then in
effect (including without limitation, the applicable rates, discounts and
commitments, if any), subject to termination by either party upon thirty (30)
days prior written notice to the other party.
2. CUSTOMER'S MINIMUM REVENUE COMMITMENTS. As of August 1, 2000, the
parties agree to substitute Section 5 of the PET to read in its entirety as
follows:
5. CUSTOMER'S MINIMUM REVENUE COMMITMENTS:
(A) Commencing with Customer's August 2000 billing period (i.e., September
2000 invoice) and continuing through January 2001 billing period (i.e., February
2001 invoice) (the "FIRST COMMITMENT PERIOD"), Customer agrees to maintain, on a
take-or-pay basis, cumulative Monthly Revenue of at least $400,000 ("CUSTOMER'S
FIRST MINIMUM REVENUE COMMITMENT"). Commencing with Customer's February 2001
billing period (i.e., March 2001 invoice) and continuing through the end of the
Service Term (including any extensions thereto) (the "SECOND COMMITMENT
PERIOD"), Customer agrees to maintain, on a take-or-pay basis, cumulative
Monthly Revenue of at least $520,000 ("CUSTOMER'S SECOND MINIMUM REVENUE
COMMITMENT"). Further, commencing with Customer's August 2000 billing period
(i.e., September 2000 invoice) and continuing through the end of the Service
Term (including any extensions thereto) (the "TOTAL COMMITMENT PERIOD"),
Customer agrees to maintain, on a take-or-pay basis, cumulative Monthly Revenue
of at least $18,000,000 ("CUSTOMER'S TOTAL MINIMUM REVENUE COMMITMENT").
(B) Notwithstanding anything to the contrary contained in this Agreement, as
soon as Customer's cumulative Monthly Revenue from MCI WorldCom under the terms
of this Agreement and commencing with Customer's August 2000 billing period
(i.e., September 2000 invoice) are equal to at least Customer's Total Minimum
Revenue Commitment (i.e., $18,000,000 in the aggregate), Customer may elect to
terminate Customer's Minimum Revenue Commitment described in Subsection 5(A)
above by providing MCI WorldCom written notice ("CUSTOMER NOTICE"). In such
event, commencing with the first day of the first full month following at least
thirty (30) days after MCI WorldCom receives the Customer Notice, Customer's
Minimum Revenue Commitment shall terminate and will no longer be in force or
effect.
3. DEFICIENCY CHARGE. As of August 1, 2000, the parties agree to substitute
Section 6 of the PET to read in its entirety as follows:
6. DEFICIENCY CHARGE. In the event Customer does not maintain Customer's
First Minimum Revenue Commitment or Customer's Second Minimum Revenue
Commitment, whichever is applicable, during the First Commitment Period or the
Second Commitment Period, whichever is applicable, then for those Commitment
Periods only, Customer will pay MCI WorldCom, in addition to charges due for
Switched Services provided to Customer, the difference between Customer's
applicable Minimum Revenue Commitment and Customer's actual cumulative Monthly
Revenue for the applicable Commitment Period (the "DEFICIENCY CHARGE"). The
Deficiency Charge will be due at the same time payment is due for Switched
Services provided to Customer for the billing period in which the Deficiency
Charge arises, or immediately in an amount equal to Customer's First Minimum
Revenue Commitment and Customer's Second Minimum Revenue Commitment, whichever
is applicable, for the unexpired portion of the Service Term, if MCI WorldCom
terminates this Agreement based on Customer's default or if Customer terminates
this Agreement pursuant to Section 2(A) of the TSA. Further, in the event
Customer does not maintain Customer's Total Minimum Revenue Commitment by the
end of the Service Term, Customer agrees to pay MCI WorldCom the difference
between Customer's Total Minimum Revenue Commitment and Customer's actual
cumulative Monthly Revenue (which shall include any Monthly Deficiency Charges
paid by Customer) during the Total Commitment Period (the "TOTAL DEFICIENCY
CHARGE"). The Total Deficiency Charge, if any, will be due within ten (10) days
following the end of the Service Term, or immediately in an amount equal to
Customer's Total Minimum Revenue Commitment less Customer's actual Monthly
Revenue through the effective date of termination if MCI WorldCom terminates
this Agreement based on Customer's default. It is agreed that MCI WorldCom's
damages in the event Customer fails to maintain Customer's First Minimum Revenue
Commitment, Customer's Second Minimum Revenue Commitment and Customer's Total
Minimum Revenue Commitment shall be difficult or impossible to ascertain. The
provision for a Deficiency Charge and a Total Deficiency Charge in this Section
6 is intended, therefore, to establish liquidated damages in the event Customer
fails to maintain Customer's First Minimum Revenue Commitment, Customer's Second
Minimum Revenue Commitment and Customer's Total Minimum Revenue Commitment and
is not intended as a penalty.
4. SPECIAL RATES. Notwithstanding anything to the contrary contained in the
applicable Attachment(s) attached to the TSA, commencing within ten (10)
business days following MCI WorldCom's execution of this Amendment No. 2, which
date will be determined by MCI WorldCom in its sole discretion, and continuing
through the end of the Service Term, with respect to TRANSCEND 2000 Services,
Customer will receive the special rates (the "SPECIAL RATES") for the Service(s)
shown below. All other rates and discounts will be as set forth in the
applicable Attachment(s).
(i) TRANSCEND 2000 Services - Customer's Domestic Transport Charge
will be $______ per minute.
(ii) TRANSCEND 2000 Services - Customer's International Transport
Charges for calls to Mexico will be the respective rates per minute set forth
below: [Note: The Special Rates set forth below are for land-line transport
only; access charges and domestic transport charges not included.]
MEXICO RATE
PEAK $
OFF PEAK $
(B) Notwithstanding anything to the contrary contained in the TSA, MCI
WorldCom reserves the right to modify the Special International Rates described
in Subsection (A) above (which charge modifications shall not exceed
then-current generally available MCI WorldCom charges for comparable services),
upon not less than fifteen (15) calendar days' prior notice to Customer
(facsimile being acceptable), which notice will state the effective date for the
charge modification.
5. OTHER TERMS AND CONDITIONS. Except as specifically amended or modified
herein, the terms and conditions of the Agreement will remain in full force and
effect throughout the Service Term and any extensions thereof.
IN WITNESS WHEREOF, the parties have entered into this Amendment No. 2 on
the date first written above.
MCI WORLDCOM NETWORK
SERVICES, INC. GTC TELECOM, INC.
/s/ Xxxxxx X. Xxxxxxx /s/ S. Xxxx Xxxxxx
By:---------------------------- By:----------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxxx S. Xxxx Xxxxxx
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(Print Name) (Print Name)
Director President & CEO
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(Title) (Title)
9-15-00 9-14-00
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(Date) (Date)
