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EXHIBIT 10.1
FIRST AMENDMENT TO QWEST COMMUNICATIONS CORPORATION
SERVICES AGREEMENT
This First Amendment (this "First Amendment") to the Qwest Communications
Corporation Services Agreement is by and between Qwest Communications
Corporation ("Qwest") and General Magic ("Customer"). This First Amendment will
be effective upon Customer's signature date below (the "First Amendment
Effective Date").
WHEREAS, Qwest and Customer entered into a Qwest Communications Corporation
Services Agreement signed by Customer on April 30, 1998 (the "Agreement"), and
WHEREAS, during Qwest's provision of Services pursuant to this Agreement the
Customer experienced Service outages, and
WHEREAS, to provide a remedy for such Service outages, Qwest agrees to adjust
Customer's Usage Minimum, and
WHEREAS, as consideration for such adjustment, Customer agrees not to commence
litigation against Qwest for such Service outages experienced before the
Effective Date of this First Amendment;
WHEREAS, the Parties do not intend to alter Customer's termination rights
pursuant to the Agreement regarding Qwest's provision of Services;
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration thereof, the parties agree as follows:
1. The second and third unnumbered paragraphs on Page 1 of the Agreement are
deleted and replaced with the following:
Qwest will provide to Customer international, interstate and intrastate
telecommunications service(s) (the "Services") pursuant to this Agreement
and the Qwest FCC Tariffs No. 2 and No. 3 and any applicable intrastate
tariff of Qwest and/or its affiliates (individually, a "Tariff" and
collectively, the "Tariffs"), to the extent permitted by law. Capitalized
terms not otherwise defined herein shall have the meaning given them in the
applicable Tariff. This Agreement incorporates by reference the terms of
the Tariffs, which Qwest may modify from time to time in accordance with
law. Federal law prohibits Qwest from providing interLATA long distance
services in Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska,
New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and
Wyoming (i.e., voice and data services that originate in such states,
private line with one end point in those states, or toll free service that
terminates in such states) until Qwest has obtained authorization to
provide such services in those states. Customer represents that it has
received from a competitor of Qwest an offer comparable to the offer set
forth in this Agreement.
If prior to the expiration of the Initial Term or Renewal Term of this
Agreement, Qwest is required to cancel any Tariff, or portion thereof, on
file with the Federal Communications Commission ("FCC") or is prohibited
from filing a specific tariff option reflecting the terms of this
Agreement, as a result of a government or judicial action, then effective
on such cancellation or prohibition ("Cancellation Date"), as applicable,
and for the remainder of the Initial Term or Renewal Term:
(a) The specific provisions contained in this Agreement that expressly apply
in lieu of, or that apply in addition to, provisions contained in the
Tariffs and/or in Qwest's Rate and Service Schedules ("Rate Schedules")
shall be controlling; and
(b) Provisions contained in the Rate Schedules shall be subordinate to the
specific provisions in this Agreement as described in (a).
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(c) Notwithstanding the above, for services for which a Tariff is required
to be filed or is permitted after the Cancellation Date to be filed, the
Qwest Tariff provisions that remain in effect, as Qwest may amend from
time to time in accordance with law, shall be controlling over the terms
contained in this Agreement or the Rate Schedule.
Any references to a Tariff under this Agreement pertaining to the services
contained in the Rate Schedules shall be deemed to refer to the Rate
Schedules. Qwest may amend the Rate Schedules from time to time. The Rate
Schedules shall incorporate or be deemed to incorporate the applicable
provisions of the Tariff in effect immediately prior to the cancellation of
the Tariff provisions.
2. Section 3.1 of Attachment A is amended by revising the Revenue Level
Commitment for Year 3 by deleting the figure "$8,000,000" and replacing it
with One Hundred Twenty Five Thousand Dollars ("$125,000") so the table
reads as follows:
<TABLE>
<S> <C>
Year 1 $1,000,000
Year 2 $4,000,000
Year 3 $ 125,000
</TABLE>
3. Except as expressly modified by this First Amendment, the Agreement shall
continue in full force and effect in accordance with its terms and
constitutes the legal and binding obligations of Customer and Qwest. In the
event the terms of this First Amendment conflict with the terms of the
Agreement, the terms of this First Amendment shall control.
4. This First Amendment and the Agreement constitute the complete agreement of
the parties concerning the subject matter hereof, and supersedes any prior
written or verbal statements, representations, and agreements concerning
the subject matter hereof.
This First Amendment is of no force or effect unless Customer executes and
delivers it to Qwest Communications Corporation on or before September 29, 2000.
GENERAL MAGIC QWEST COMMUNICATIONS CORPORATION
By: /s/ Mary E. Doyle By: /s/ John Stuart
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Name: Mary E. Doyle Name: John Stuart
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Title: Senior Vice President Title: Regional Vice President
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Date: September 29, 2000 Date: 9/28/00
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Approved as to business content;
Qwest Communications Corporation
By: /s/ Tom R. Schmuke
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Name: Tom R. Schmuke
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Title: Director of Finance
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Date: 10-14-00
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