Exhibit 10.17.1
AMENDMENT 1
THIS AMENDMENT 1 ("Amendment 1") is made and entered into this 19 day February,
2002, by and between Xxxxxxxx Communications, LLC, a Delaware limited liability
company ("Xxxxxxxx") and Universal Access, Inc., a Delaware corporation
("Customer") having it's principal place of business at Sears Tower, 000 X.
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, Xxxxxxxx and Customer are parties to that certain Master Services
Agreement dated October 1, 2001, contract number 01R1966.00 (the "Agreement");
WHEREAS, Xxxxxxxx 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, Xxxxxxxx and Customer agree to amend the Agreement as
follows:
1. Section 1.1, Table A is hereby amended to include Schedule 17, Managed
Services.
2. Section 2.3(c), of the Agreement is deleted in its entirety and replaced with
the following:
c. In determining whether the annual charges are of a sufficient dollar
amount to meet Customer's Revenue Commitment, Xxxxxxxx will include the
monthly recurring charges for Xxxxxxxx' Services. The monthly recurring
charges for Xxxxxxxx Service(s) (including one month's charge for pending
circuits prior to their delivery subject to the last sentence of the
following paragraph), and any charges for 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". The term Applicable Service shall also include all
charges and fees associated with any such circuit or bandwidth and any paid
Deficiency Amounts, (as discounted, if applicable) and any credits to which
Customer may be entitled pursuant to this Agreement as. well as any amounts
paid by Customer pursuant to Section 3 of Schedule 17 for Managed Services.
The foregoing not withstanding, the Applicable Services will not include late
charges, non-recurring charges, ancillary charges, payment penalties, taxes
and other government imposed surcharges, payments made by Customer for Third
Party Services (including but not limited to Third Party Local Access
Service), amounts paid for Equipment Sales and Travel Expenses associated
with Managed Services as specified in Attachment 1 to Schedule 17, and
amounts paid to reimburse Xxxxxxxx for costs paid by Xxxxxxxx to any Third
Party Provider.
To the extent that, in any year during the Term of this Agreement, Customer
fails to have a total aggregate billing of Applicable Services from Xxxxxxxx
greater than or equal to the Annual Minimum amount applicable to a year,
Xxxxxxxx shall invoice Customer, on Customer's current or next invoice, and
Customer hereby agrees to pay, an amount equal to the difference between the
Annual Minimum amount and the amount of Applicable Services actually
purchased by Customer (the "Deficiency Amount") for such year. The parties
agree that the Deficiency Amount represents liquidated damages, and is based
on Customer's commitment to meet the Annual Minimum amount during each year
of the Term of this Agreement and Xxxxxxxx' agreement to the discounted
prices set forth in the Service Schedules attached hereto, which are based
upon such commitment. Notwithstanding the foregoing, in the event that
Customer has not taken delivery of an Applicable Service within forty-five
(45) days after the end of the immediately preceding year, then Xxxxxxxx
shall not count the monthly recurring charges for Xxxxxxxx' Services as set
forth in such Service Orders towards Customer's Annual Minimum.
3. Except as specifically amended herein, all the covenants, terms and
conditions and provisions contained in the Agreement shall remain unchanged
and in full force and effect.
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AMENDMENT 1
IN WITNESS WHEREOF, the parties have executed this Amendment 1 on the day and
year first set forth above.
UNIVERSAL ACCESS, INC. XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
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Signature of Authorized Signature of Authorized
Representative Representative
Xxxxx Xxxxxxx Xxxxxx Xxxxxx
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Printed Name Printed Name
Senior VP Carrier Relations VP Strategic Sourcing
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Title Title
2-14-02 2-19-02
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Date Date
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