Ex. 10.19.4
AMENDMENT NO. 4
THIS AMENDMENT ("Amendment No. 4") is made and entered into this 1st day of May,
2000, by and between Xxxxxxxx Network, a division of XXXXXXXX COMMUNICATIONS,
INC. ("Seller") and UNIVERSAL ACCESS, INC. ("Customer").
WHEREAS, Seller and Customer are parties to that certain Carrier Services
Agreement, Contract No. 98R0613.00 which is dated June 29, 1998 as amended by
Amendment No. 1 dated March 12, 1999, Amendment No. 2 dated July 1, 1999 and
Amendment No. 3 dated December 21, 1999 (together the "Agreement"); and
WHEREAS, Seller and Customer desire to amend the Agreement;
NOW, THEREFORE in consideration of the foregoing premises and mutual promises
and covenants of the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, Seller and Customer agree to amend the Agreement as
follows:
1. Section 3.2 of the Agreement shall be deleted in its entirety and replaced
with the following:
"The duration of this Agreement shall continue for a term of ten (10)
years (the "Initial Term") from the date Amendment No. 4 is executed by
the parties ("Effective Date of Amendment No. 4"). This Agreement shall
thereafter automatically renew for successive one-year periods (each, a
"Renewal Term") unless canceled by either party by giving written notice
of such cancellation not less than sixty (60) days before the end of the
Initial Term, or any Renewal Term. Unless Customer is in default at the
end of any applicable cure period, any Service being provided at the time
of cancellation shall continue until the end of such Service as specified
in the applicable Service Order upon the terms and conditions of this
Agreement; provided that Customer may not order any new Service without
first renewing the Agreement. The charges for Services or Ancillary
Services during any such extension shall be the then current Seller
charges."
2. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of Amendment No. 4 and the
terms and conditions of Section 3.3 of the Agreement shall not apply to
such orders.
"Commencing upon the Effective Date of Amendment No. 4 and ending twelve
(12) months thereafter (the "Ramp Period"), Customer shall be obligated to
purchase on a monthly basis Seller On-Net Services, as set forth in the
Service Schedules attached to this Agreement (including any future Seller
On-Net Services as reflected in subsequent Service Schedules attached
hereto) (the "Applicable Service") as follows:
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Month of Ramp Period Ramp Period Commitment Per Month
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Months May 2000 - October 2000 $300,000
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Months November 2000 - January 2001 $500,000
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Months February 2001 - April 2001 $750,000
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The amounts set forth under the column "Ramp Period Commitment Per Month"
shall be referred to hereafter as the "Ramp Period Commitment".
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Commencing in May 2001, after completion of the Ramp Period, and
continuing through the completion of the Initial Term and any Renewal Term
Customer shall be obligated to purchase Applicable Services in the amount
of one million ($1,000,000.00) per month (the "Revenue Commitment").
The terms "On-Net" and "On-Network" Services in this Agreement refer only
to such transport telecommunications services between two locations
(including Xxxxxxxx Wireless Access Services and including local services,
when and if available) traversing Seller's owned and/or operated network
both end points of which originate or terminate at a Seller point of
presence or transport telecommunications services that are ordered and
scheduled to be provided on Seller's owned and/or operated network within
ninety (90) days from the date of the applicable Service Order. Whether or
not a circuit will be On-Net within ninety (90) days shall be determined
in accordance with Sellers' "On-Net POP List" which is attached hereto and
which shall be updated by Seller from time to time and provided by Seller
to Customer at the time of the update. In addition to On-Net and
On-Network Services, any circuit or bandwidth ordered by Customer from
Xxxxxxxx pursuant to any circuit or bandwidth trade, whether directly
between the parties or through a broker, and whether any such trade is
governed by a separate agreement between the parties, shall be considered
an "Applicable Service." All charges and fees associated with any such
circuit or bandwidth shall count towards Customer's Ramp Period Commitment
or Revenue Commitment under this Agreement.
All charges for Services in this Agreement shall be determined in
accordance with the pricing set forth in the Service Schedules attached
hereto or on Customer's Service Orders, as applicable. In determining
whether the monthly charges are of a sufficient dollar amount to meet
Customer's Ramp Period Commitment or Revenue Commitment, whichever is
applicable, Seller will include any discounts applicable to Customer, but
will not include any credits to which Customer may be entitled, late
payment penalties, taxes and other government imposed surcharges, or
payments made by Customer to reimburse Seller for third party costs paid
to unaffiliated entities, including, but not limited to, local access
charges, taxes, installation charges, off-network charges, one-time fees
and other similar costs.
To the extent that, in any month of the Ramp Period or in any month after
completion of the Ramp Period asset forth above, Customer fails to have a
total aggregate billing for Applicable Services greater than or equal to
the Ramp Period Commitment or Revenue Commitment amount, whichever is
applicable, Customer will be billed for and Customer shall pay to Seller
the difference between the amount of Applicable Services actually
purchased by Customer and the amount of the Ramp Period Commitment or
Revenue Commitment, whichever is applicable. Notwithstanding the
foregoing, in the event that Customer has placed with Seller and Seller
has accepted Service Orders for Applicable Services, which Service Orders
have Requested Due Dates within six (6) months of Seller's acceptance of
such Service Orders, then Seller shall count the monthly recurring charges
for the On-Net Services as set forth in such Service Orders towards
Customer's applicable Ramp Period Commitment or Revenue Commitment amount.
In the event Customer terminates a circuit for an Excessive Outage
pursuant to Section 8(b) of this Agreement and such termination causes the
Customer to fall below their Revenue Commitment or Ramp Period Commitment,
whichever is applicable (the "Shortfall"), then Customer shall receive a
credit toward the Shortfall. Such credit shall be equal to the monthly
recurring charge associated with the circuit that has been terminated by
Customer in accordance with Section 8(b) of this Agreement, but in no
event shall exceed the amount of any Shortfall. To the extent that any
such credit does not offset the entire amount of Shortfall owed by
Customer, then Customer shall remain liable for any Shortfall amount not
offset by the credit issued in accordance with this paragraph. For
example, if Customer purchased Applicable Services in the amount of
$150,000 for the month of August and the Ramp Period Commitment was
$200,000, Customer would owe to Xxxxxxxx a Shortfall of $50,000. If during
August Customer had terminated 1 DS-3 circuit in accordance with Section
8(b) and the monthly recurring charge for the terminated circuit was
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$30,000, then Customer would receive a credit for the $30,000, but would
still owe to Xxxxxxxx $20,000, the remainder of the Shortfall.
Starting in January 2001, and not before, Seller agrees that it will, upon
the written request of Customer and no more often than annually, review
its pricing and rates and compare Seller's current pricing and rates for
telecommunications services that are substantially similar to the range of
services offered by Seller under this Agreement, including without
limitation revenue commitments, term, volume, product mix, functionality,
features, credits offered, level of service and geographic breadth. Seller
agrees to negotiate in good faith with Customer to adjust Seller's pricing
and rates based on the comparison conducted by Seller in accordance with
this paragraph. If Seller chooses to adjust Customer's pricing set forth
in this Agreement, such adjustment shall be effective for circuits which
have been in service for at least twelve (12) months as of the date of
Seller's adjustment and for new circuit orders. If, however, Customer
requests such review June 1, 2001 or after, and Seller chooses to adjust
Customer's pricing set forth in this Agreement, such adjustment shall be
effective for new circuit orders only. Seller may, at any time and at its
sole discretion, choose to review its pricing and rates as stated above
and may consider adjusting Customer's pricing and rates at that time.
3. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of this Amendment No. 4 and
the terms and condition of paragraph 5 of Section 4 of the Agreement shall
not apply to such orders.
"Seller's standard service implementation intervals for Services provided
on Seller's owned and/or operated network are forty-five calendar (45)
days from acceptance of a Service Order by Seller for DSn Services and one
hundred and twenty (120) calendar days from acceptance of a Service Order
by Seller for OCn Services. Such acceptance shall be indicated by the
signature of a representative of Seller's Customer Care department on the
Service Order. The standard service implementation interval for Services
provided by a third party and either partially or wholly off of Seller's
owned and/or operated network shall be determined on an individual case
basis. Seller shall make reasonable efforts to provide Services within its
standard service implementation interval or on Customer's Requested Start
Date. In the event Seller fails to make Services available within its
standard service implementation interval, Customer shall receive a
pro-rata credit of the monthly recurring charge for such Service based on
the number of days Service is delayed, such credit not to exceed one
month's monthly recurring charge. Customer shall not receive such credit
and Seller shall not be liable for any delay if the delay is due to the
Customer, local access provider or as a result of a Force Majeure event as
defined in Section 8.5 hereof. Notwithstanding anything to the contrary in
this Agreement, in no event shall Seller's failure to deliver On-Net
Service within the periods set forth above constitute a default under this
Agreement, and Customer agrees that the delay credit which may be issued
by Seller in accordance with this paragraph is Customer's sole remedy and
Seller's sole liability in the event of any delay in providing such
Service."
4. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of Amendment No. 4 and the
terms and conditions contained in paragraph 6 of Section 4 of this
Agreement shall not apply to such orders.
"Customer may request a delay in the Start Date of an order, move or
rearrangement when Seller receives the delay request a minimum of ten (10)
days prior to the due date and the requested delay does not exceed sixty
(60) cumulative calendar days from the Service Orders initial Start Date.
When Customer has delayed a Service Order for the maximum sixty (60)
cumulative calendar days, the order may not be delayed again by Customer.
Once the maximum sixty (60) day delay has been achieved, Customer has the
option to (a) accept the billing for the Service Order, or (b) cancel the
Service Order and pay the applicable cancellation charges for the
facilities ordered. The billing or cancellation is effective on the
sixtieth (60th) cumulative calendar day of the delay. If Customer elects
to accept billing the installation will be
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completed as soon as reasonably practical after Customer advises Seller
that the installation can be completed."
5. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of Amendment No. 4 and the
terms and conditions of the first sentence of Section 6.1 of the Agreement
shall not apply to such orders.
"Customer may cancel any Service or Ancillary Service provided hereunder
by providing written notification to Seller thereof thirty (30) days in
advance of the effective date of cancellation."
6. Notwithstanding the pricing currently set forth in Section 2.1 of the
Private Line Service Schedule which is attached to the Agreement as
schedule B, and as Amended in Amendment No. 3., the following pricing
shall apply to all Service Orders for On-Net Interexchange Private Line
Service placed by Customer after the Effective Date of Amendment No. 4.
All other terms and conditions of Section 2.1 of the Private Line Service
Schedule (Schedule B) shall continue to apply.
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Monthly On-Net Recurring Rates
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DS1 Rate DS3 Rate OC3 Rate OC12 Rate OC48 Rate
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$.0250 *** *** *** ***
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Rates are per VGE V&H DS-0 mile
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7. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of Amendment No. 4 and the
terms and conditions of Section 3.1 of Schedule B to this Agreement shall
not apply to such orders.
"Upon acceptance of a Service Order by Seller, Seller will use reasonable
efforts to provide a firm order confirmation of the requested service date
within five (5) days of Sellers acceptance of Customer's order for
Services which are provided by Seller and are currently on facilities
owned and/or operated by Seller and bounded by Seller points of presence."
8. The following terms and conditions shall apply to any Service Orders
placed by Customer after the Effective Date of Amendment No. 4 and the
terms and conditions of Section 6 of Schedule B to the Agreement shall not
apply to such orders.
" Outage Credits. (a) Customer acknowledges the possibility of an
unscheduled, continuous and/or interrupted period of time when a Service
or Services are "unavailable" (as defined in the Technical Specifications
below) for a continuous period of two (2) hours (hereafter an "Outage").
An Outage shall begin upon the earlier of Seller's actual knowledge of the
Outage or Seller's receipt of notice from the Customer of the Outage. In
the event of an Outage, Customer shall be entitled to a credit (the
"Outage Credit") for Private Line Service in the amount of 1/720 of the
monthly recurring charge for the interexchange portion of the Service for
each hour in excess of the first two (2) consecutive hours that the
affected Service fails to conform to the Technical Specifications.
(b) In the event that Customer experiences one or more Outages in any two
(2) months of any period consisting of three (3) consecutive months (the
"Excessive Outage"), Customer shall be entitled, in addition to the
applicable Outage Credit, if any, to terminate such circuits as are
affected by the Excessive Outage without liability for a disconnection fee
as set forth in this Schedule B.
*** Certain information on this page has been omitted and filed sparately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(c) Customer shall not receive an Outage Credit if the interruptions are
(i) of a duration of less than two (2) consecutive hours, (ii) caused by
Customer or others authorized by Customer to use the Services under this
Agreement, (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Seller, (iv) caused by the failure
of Local Access to Seller's fiber optic network, (v) the result of
scheduled maintenance where Customer has been notified of scheduled
maintenance in advance, (vi) due to a Force Majeure event as defined in
Section 8.5 of this Agreement.
(d) All Outage Credits shall be credited on Customer's next monthly
invoice for the affected Service.
(e) The Outage Credit and ability to terminate a circuit for Excessive
Outage as set forth in this Section shall be the sole and exclusive
remedies of Customer in the event of any Outage or Excessive Outage and
under no circumstances shall an Outage or an Excessive Outage be deemed a
default under this Agreement."
9. Except as specifically amended herein, all terms, conditions and
provisions contained in the Agreement shall remain unchanged and in full
force and effect.
10. This Amendment shall become effective on the date on which Seller signs
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year
first above set forth.
XXXXXXXX COMMUNICATIONS, INC. UNIVERSAL ACCESS, INC.
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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(SIGNATURE) (SIGNATURE)
Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxxx
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(PRINT) (PRINT)
VP Sales Chief Operating Officer
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(TITLE) (TITLE)
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