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EXHIBIT 10.43
AMENDMENT NO. 1
TO
AMENDED AND RESTATED MASTER OPERATING AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of September 15, 2000
(the "Effective Date"), is made and entered into by and between UBS AG, a
corporation organized under the laws of Switzerland ("UBS AG"), and Xxxxx
Systems Corporation, a Delaware corporation ("PSC"). As used in this Amendment,
"party" means either UBS AG or PSC, as appropriate, and "parties" means UBS AG
and PSC, collectively.
RECITALS
A. Swiss Bank Corporation (a predecessor of UBS AG) and PSC entered
into an Amended and Restated Master Operating Agreement, dated as of January 1,
1997 (the "Master Operating Agreement").
B. The parties desire to amend the Master Operating Agreement as set
forth below.
C. Concurrently with the execution of this Amendment, the parties are
entering into Amendment No. 1 to Second Amended and Restated Agreement For EPI
Operational Management Services (the "SBC Warburg EPI Amendment").
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
AMENDMENTS
1. DEFINITIONS.
(a) A definition of "Network" is hereby added to Section 1.1 of
the Master Operating Agreement to read in its entirety as
follows:
"Network" means all hardware, software, cabling,
telecommunications facilities and transport services that are
used to connect, transmit, architect, manage, monitor and
support all data, voice and video services in connection with
the business and operations of the SBC Entities.
The term "Network" shall not include the following: (A) file,
application, database, mail, fax, Chat, Unix/NT platforms and
web servers; and (B) workstations, terminals, printers, fax
machines or other end-user devices attached to LANs.
(b) A definition of "Network Services" is hereby added to Section
1.1 of the Master Operating Agreement to read in its entirety
as follows:
"Network Services" means all services relating to the
Operational Management of the Network of any SBC Entity,
including without limitation all management, administration,
operations, maintenance, support, design, engineering,
planning, provisioning, procurement, staging, configuration,
installation, implementation, training and related services,
and specifically including without limitation:
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(i) IP Services - LAN technologies including routing and
switching, etc., MAN/WAN technologies including
multiplexors, DSUs/CSUs, encryptors, etc;
(ii) Transport Services including ATM, frame relay, DSL,
Internet, ISDN, leased lines, wireless, etc., and
remote access technologies including VPNs,
authentication, encryption, etc;
(iii) Voice Services - Voice technologies including PBXs,
key systems, telephones, audio-conferencing, trader
turrets, telco services such as PSTN, cellular, and
trader circuits, voice mail systems, voice response
units, automatic call distribution systems, CTI, IVR
systems, etc;
(iv) Video Services - Video technologies including
multi-point boardroom video, desktop video,
video/audio streaming and real time CATV
distribution; and
(v) Internet, Intranet and Extranet
communications/security infrastructure including
firewalls, intrusion detection systems,
authentication systems, encryption systems,
application proxy servers, network cache servers,
Internet service providers, etc.
The term "Network Services" shall not include the following
services relating to the Network:
(i) Xxxxx 0 Xxxx Xxxx/Xxxx Xxxxxxx that interface with
the end use/customer on all Network Services
problems;
(ii) NT and Unix procurement, staging, configuration,
installation, implementation and support; and
(iii) Design, architecture, maintenance and support of the
Chat infrastructure, meta-directory infrastructure
and web server infrastructure.
(c) The term "EPI" at Section 1.1(g) of the Master Operating
Agreement is hereby amended to read in its entirety as
follows:
"EPI" means all existing and future information technology
services provided by or on behalf of any SBC Entity that are
related to the Operational Management of that SBC Entity's
mainframe and other computers (including personal computers),
including peripheral equipment. The term "EPI" shall not
include any information technology services related to the
Operational Management of the Network.
(d) The term "Services" is hereby amended to read in its entirety
as follows:
"Services" means, with respect to each EPI Agreement, the
services required for the Operational Management of the EPI of
the applicable SBC Entity and which are described as such in
that EPI Agreement, together with any additional services that
are to be provided by PSC under that EPI Agreement.
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2. REMOVAL OF NETWORK SERVICES.
From and after the Transition Date (as defined in the SBC Warburg EPI
Amendment), Network Services shall no longer be included as part of the
Services that are the subject of the Master Operating Agreement, except
inasmuch as services related to the Network and Network Services are
necessary for PSC to fulfill its obligation to complete the transition
of Network Services to the Designated UBS Entity (as defined in the SBC
Warburg EPI Amendment) pursuant to the SBC Warburg EPI Amendment (which
may include, among other things, the continued provision of certain
Network Services pursuant to Section 2.2(g) of the SBC Warburg EPI
Amendment). This Amendment shall not affect any rights or obligations
of the parties under the Master Operating Agreement in connection with
any Network Services provided by Xxxxx Systems prior to the completion
of the transition of Network Services pursuant to the SBC Warburg EPI
Amendment.
3. MISCELLANEOUS.
(a) Any capitalized terms not defined herein shall have the
meaning given them in the Master Operating Agreement.
(b) The section headings used in this Amendment are for reference
and convenience only and shall not enter into the
interpretation of this Amendment.
(c) The terms and conditions set forth in this Amendment shall be
deemed a part of the Master Operating Agreement for all
purposes. In the event of a conflict or inconsistency between
the terms and conditions set forth in this Amendment and those
set forth in the Master Operating Agreement, the terms and
conditions of this Amendment shall prevail.
(d) Except as provided in this Amendment, the Master Operating
Agreement shall remain unchanged and in full force and effect.
(e) This Amendment may be executed in several counterparts, all of
which taken together constitute one single agreement between
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and sealed by their duly authorized representatives all as of the day and
year first above written.
UBS XX XXXXX SYSTEMS CORPORATION
By: /s/ Xxxxxxx X'Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: Managing Director Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
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Title: Managing Director and CFO
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