EXHIBIT 10.2
MCI WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND & SWITCHED SERVICES
AMENDMENT NO. 1
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This Amendment No. 1 is made as of the 1st day of January, 2000 (the
"Effective Date"), by and between PTEK Holdings, Inc. (formerly known as
Premiere Technologies, Inc.) ("Customer") and MCI WORLDCOM Network Services,
Inc. ("MCI WorldCom"), to those certain Program Enrollment Terms (the "PET") to
that certain Telecommunications Services Agreement (the "TSA") made by and
between Customer and MCI WorldCom dated October 29, 1999. In the event of any
conflict between the terms of the TSA, the PET and any applicable Attachments
and the terms of this Amendment No. 1, the terms of this Amendment No. 1 shall
control. The TSA along with the PET and this Amendment No. 1 shall collectively
be referred to as the "Agreement". The parties acknowledge that the terms and
conditions set forth in this Agreement will apply to Customer and any of
Customer's Subsidiaries and Affiliates as described herein and the term
"Customer" shall be deemed to include Customer's Subsidiaries and Affiliates for
all intents and purposes. Provided, however, Customer shall cause Customer's
Subsidiaries and Affiliates to pay all charges under the terms of this
Agreement; provided, however, in the event Customer's Subsidiaries and
Affiliates fail to pay such charges, Customer agrees to be liable for such
charges. For purposes of this Agreement, "Customers Subsidiaries and
Affiliates" shall include those corporations, associations, limited liability
companies, partnerships, limited liability partnerships, business trusts or
other business entities, whether now existing or hereafter acquired or formed,
and of which the entity in question at the time in question owns or controls ten
percent (10%) of more of the outstanding equity securities or other beneficial
ownership interests either directly or through an unbroken chain of entities as
to each of which ten percent (10%) or more of the outstanding equity securities
or other beneficial ownership interests are owned directly or indirectly by its
parent.
The parties agree for good and valuable consideration, intending legally to
be bound, as follows:
1. SERVICE TERM. As of the Effective Date, the parties agree to delete
Subsection 1(B) of the PET in its entirety and to substitute Subsection
1(A) of the PET to read in its entirety as follows:
SERVICE TERM. The Service Term shall commence as of January 1, 2000 (the
"Effective Date") and shall continue through and include December 31, 2004
(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 at least six (6) months' prior written
notice to the other party which notice maybe given prior to the end of the
Service Term.
2. [***]
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3. USE OF SERVICES.
(A) In consideration of the terms and conditions of this Agreement
including the Special Rates described in Section 4 below, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Customer represents and warrants that the Services purchased
under this Agreement [***]
(B) In the event Customer is in breach of Subsection 3(A) above, MCI
WorldCom shall notify Customer of such breach in writing. Customer shall
have ten (10) days (the "Investigation Period") in which to investigate
such claim and provide MCI WorldCom with its assessment of such claim. If
during the Investigation Period, Customer determines that it is in breach
of Subsection 3(A), Customer shall have an additional ten (10) day period
(the "Remedy Period") in which to remedy such breach and pay MCI WorldCom
[***] If such breach is remedied in accordance with the foregoing,
Customer shall have no further liability for such breach. In the event
Customer determines that it is not in breach of Subsection 3(A) or fails to
remedy the breach to MCI WorldCom's sole satisfaction by the end of the
Remedy Period, the parties agree to follow the arbitration procedures set
forth in the Settlement Agreement described in Section 9 below.
Notwithstanding anything to the contrary contained in the Settlement
Agreement, if Customer is deemed by the Arbitrator to have breached
Subsection 3(A), MCI WorldCom's sole remedy shall be for the Arbitrator to
award MCI WorldCom [***]
4. [***]
5. RATES FOR NEW SERVICE. Notwithstanding anything to the contrary contained
in the Agreement during the Service Term only, Customer shall have the
right to purchase new Service [***]
6. [***]
7. ASSIGNMENT. Notwithstanding anything to the contrary contained in this
Agreement [***]
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8. 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.
9. SETTLEMENT AGREEMENT. The parties acknowledge the existence of that
certain Settlement Agreement dated , 2000, a copy of which is
attached hereto and incorporated herein by reference. All capitalized
terms not defined herein shall have meanings ascribed to them in the
Settlement Agreement.
IN WITNESS WHEREOF the parties have entered into this Amendment No. 1 on
the date first written above.
MCI WORLDCOM NETWORK PTEK HOLDINGS, INC.
NETWORK SERVICES, INC.
By: /s/ Xxxxxx X. X'Xxxx III By: /s/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxx X. X'Xxxx III Print Name: Xxxxxxx X. Xxxxx
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Title: Chief Legal Counsel Title: Executive Vice President
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