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Exhibit 10.2
CONSENT AND AMENDMENT
This Consent and Amendment (this "Agreement") is entered into as of October
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2, 2000 (the "Effective Date"), by and (1) among Rhythms NetConnections Inc.
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("Rhythms"), Rhythms Links Inc. ("Links"), RCanada, Inc. ("RCanada"), all
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corporations formed under and governed by the laws of the State of Delaware, (2)
AXXENT Corp. (formerly known as Optel Communications Corporation), a corporation
incorporated under and governed by the laws of the Province of Ontario ("AXXENT
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Corp."), and (3) Rhythms Canada Inc., a corporation incorporated under the laws
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of New Brunswick ("Rhythms Canada").
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RECITALS
WHEREAS, Rhythms, Links and AXXENT Corp. are parties to that certain Joint
Venture Agreement, dated as of January 1, 2000 (the "JV Agreement"); and
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WHEREAS, pursuant to the JV Agreement, Rhythms, Links and AXXENT Corp.
established a joint venture through the formation of Rhythms Canada to market
and provide data communication products and services within selected markets in
Canada; and
WHEREAS, pursuant to the JV Agreement, Rhythms purchased US$5,300,000 in
equity securities of AXXENT, Inc. (formerly known as OCI Communications Inc.)
("AXXENT Inc.") (the "AXXENT Stock"); and
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WHEREAS, pursuant to the JV Agreement, Rhythms and Links purchased 100,000
Class A Voting Shares of Rhythms Canada ("Rhythms Canada Stock"); and
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WHEREAS, RCanada and RAxxent, Inc., a Delaware corporation ("RAxxent"), are
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wholly-owned subsidiaries of Rhythms; and
WHEREAS, AXXENT Corp. is a wholly-owned subsidiary of AXXENT Inc.; and
WHEREAS, Rhythms has transferred (or, currently herewith, is transferring)
ownership of its AXXENT Stock to RAxxent; and
WHEREAS, Rhythms desires to transfer ownership of its Rhythms Canada Stock
to RCanada ; and
WHEREAS, Rhythms and Links desire to amend the JV Agreement to add RCanada
as a party to the JV Agreement; and
WHEREAS, the JV Agreement requires Rhythms and Links to obtain the written
consent of AXXENT Corp. prior to assigning any of their rights or obligations
under the JV Agreement to any other party; and
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WHEREAS, the JV Agreement requires the unanimous decision of the Rhythms
Canada Board of Directors (the "Rhythms Canada Board") prior to admitting an
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additional party to the JV Agreement; and
WHEREAS, on October 16, 2000, the Rhythms Canada Board unanimously
consented to the addition of RCanada as a party to the JV Agreement (the
"Rhythms Canada Board Consent," a copy of which is attached here to as
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Exhibit A).
WHEREAS, the JV Agreement requires that, prior to admitting any additional
party to the JV Agreement, such additional party must agree in writing to adhere
to the JV Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
AGREEMENT
1. Addition of RCanada as a Party to the JV Agreement. Upon the Effective
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Date hereof, RCanada shall become a party to the JV Agreement.
2. Consent of AXXENT Corp. Upon the Effective Date, AXXENT Corp.
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consents to the addition of RCanada as a party to the JV Agreement and, from and
after the Effective Date, any and all references to Rhythms in the JV Agreement
shall include RCanada.
3. Consent of Rhythms Canada. Upon the Effective Date hereof and
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pursuant to the Rhythms Canada Board Consent, Rhythms Canada consents to the
addition of RCanada as a party to the JV Agreement.
4. Agreement of RCanada. Upon the Effective Date hereof, RCanada
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agrees to become a party to the JV Agreement and adhere to the terms and
conditions of the JV Agreement.
5. Agreement of Rhythms and Links. Rhythms and Links agree that nothing
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herein shall diminish or alter the obligations of Rhythms or Links pursuant to
the JV Agreement.
6. Agreement of RAxxent. RAxxent agrees to assume all obligations of
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Rhythms with respect to the AXXENT Stock including any applicable share transfer
restrictions.
7. Miscellaneous.
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(a) Assignment. Neither this Agreement nor any of the rights or
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obligations under this Agreement may be assigned by any party
without the prior written consent of the other parties.
(b) Governing Law. This Agreement will be governed by and interpreted
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in accordance with the internal laws of the Province of Ontario
and the
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federal laws of Canada applicable therein, without regard to
conflicts- of-laws provisions.
(d) Waiver. The waiver by any party of a breach or a default of any
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provision of this Agreement by the other party will not be construed as a waiver
of any succeeding breach of the same or any other provision nor will any delay
or omission on the party of any party to exercise or avail itself of any right,
power or privilege that it has or may have operated as a waiver of any right,
power or privilege by the other parties.
(e) Notice, Consents, Etc. Except as otherwise provided in this
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Agreement, all notices, consents, agreements, confirmations, designations,
indications, request, authorizations, and the like to be give under this
Agreement will be sufficient if in writing and sent via first call mail, or
delivered in person or by express courier or by facsimile with confirmed receipt
(with a copy sent via first class mail), addressed as follows:
If to Rhythms, Links and RCanada:
Rhythms NetConnections Inc.
9100 East Mineral Circle
Englewood, Colorado 80112
Attn: Jeffrey Blumenfeld
Fax No.: (202) 966-6460
With a copies to:
Brownstein, Hyatt & Farber, P.C.
410 17th Street, 22nd Floor
Denver, Colorado 80202
Attn: John Ruppert
Fax No.: (303) 223-0970
If to AXXENT Corp:
AXXENT Corp.
111 Peter Street
Toronto, Ontario M5V 2H1
Attn: President
Fax No.: (416) 907-2727
With a copy to:
AXXENT, Inc.
111 Peter Street
Toronto, Ontario M5V 2H1
Attn: Chief Financial Officer
Fax No.: (416) 907-2727
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If to Rhythms Canada:
Rhythms Canada Inc.
111 Peter Street
Toronto, Ontario M5V 2H1
Attn: President
Fax No.: (416) 907-6139
(f) Entire Agreement. This Agreement contains the full understanding
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of the parties with respect to the subject matter of this Agreement and
supersedes all prior understandings and writings relating to such subject
matter. No waiver, alteration or modification of any of the provisions of this
Agreement will be binding unless in writing and signed by all the parties.
(g) Headings. The headings contained in this Agreement are for
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convenience of reference only and will not be considered in construing this
Agreement.
(h) Severability. In the event that any provision of this Agreement
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is held by a court of competent jurisdiction to be unenforceable because it is
invalid or in conflict with any law of any relevant jurisdiction, the validity
of the remaining provisions will not be affected and the rights and obligations
of the parties will be construed and enforced as if the Agreement did not
contain the particular provision held to be unenforceable.
(i) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
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IN WITNESS WHEROF, the parties have caused this Agreement to be executed in
their names by their properly and duly authorized officers or representatives as
of the Effective Date.
RHYTHMS NETCONNECTIONS INC.,
RHYTHMS LINKS INC., RAXXENT, INC. and
RCANADA, INC.
By:_____________________________________
John Braukman
Chief Financial Officer
AXXENT CORP.
By:_____________________________________
Robert Latham
Chief Executive Officer and President
RHYTHMS CANADA INC.
By:_____________________________________
Norbert Dawalibi
Chief Executive Officer
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EXHIBIT A
See Attached.
