EXHIBIT 10.43
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
AMENDMENT NO. 1
TO
MASTER ALLIANCE AGREEMENT
This First AMENDMENT ("Amendment No. 1") to the Master Alliance
Agreement effective as of February 8, 1999 ("MAA") is made and entered into as
of September 23, 2002, by and between Xxxxxxxx Communications, LLC, a Delaware
limited liability company previously formed as Xxxxxxxx Communications, Inc.
("Xxxxxxxx"), and SBC Communications Inc., a Delaware corporation ("SBC").
Xxxxxxxx and SBC may be referred to individually as "Party" or collectively as
the "Parties."
WHEREAS, the Parties desire to amend the MAA as set forth below;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein, Xxxxxxxx and SBC agree as follows:
1. Amendments. The MAA is hereby amended as follows:
(a) Preamble. The first sentence of the preamble to the MAA is
amended to read in its entirety as follows:
"THIS MASTER ALLIANCE AGREEMENT (this "Agreement") between
Xxxxxxxx Communications, LLC (previously formed as Xxxxxxxx
Communications, Inc.) ("Xxxxxxxx"), a Delaware limited
liability company, and SBC Communications Inc., a Delaware
corporation, ("SBC"), is effective February 8, 1999 (the
"Effective Date")."
(b) Section 3.1.1. The first sentence of Section 3.1.1 of the MAA
is amended to read in its entirety as follows:
"The Parties or their Affiliates are entering into the
following agreements to implement the Alliance, in addition to
this Agreement: (1) a Network Development and Operations
Agreement ("NDOA"), (2) a Platform Services Agreement ("PSA"),
(3) a Transport Services Agreement ("TSA"), (4) a Sales and
Marketing Agreement, (5) an International Services Agreement
("ISA") and International Transport Services Agreement
("ITSA"), and (6) Consulting Services Agreements."
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 1 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
(c) Section 3.1.2. Section 3.1.2 of the MAA is amended to read in
its entirety as follows:
"Pursuant to the Alliance Agreements, in general (a) Xxxxxxxx
will provide transport and switching services in accordance
with the TSA, (b) SBC will provide platforms and related
services in accordance with the PSA, (c) Xxxxxxxx and SBC will
cross-market each others' services and (d) SBC and Xxxxxxxx
will mutually develop new features and functions and
geographical expansions of their telecommunications facilities
and associated services contemplated by this Alliance as
follows: (i) SBC will be primarily responsible for designing
and building platforms as set forth in the PSA; (ii) SBC and
Xxxxxxxx will jointly design and plan switch capabilities,
depending upon the nature of the switches and the time that
the switches need to be deployed in accordance with the NDOA;
(iii) Xxxxxxxx shall be primarily responsible for building and
installing the switches and developing domestic interLATA
transport capabilities in accordance with the TSA; (iv)
Xxxxxxxx will be primarily responsible for developing
international transport and voice capabilities in accordance
with the ISA and the ITSA; (v) Xxxxxxxx will be primarily
responsible for ordering, provisioning, engineering, capacity
management and operations management in accordance with the
TSA; and (vi) SBC will be primarily responsible for providing
local access services in all portions of the United States
other than SBC States to the extent SBC offers such services
in the future. The term "Supplying Party" means (a) Xxxxxxxx
as to the products and services described in clauses (a),
(d)(iii), (d)(iv), and (d)(v) of the preceding sentence, (b)
SBC as to the products and services described in clauses (b),
(d)(i), (d)(vi) of the preceding sentence, and (c) Xxxxxxxx or
SBC as appropriate as to their respective products and
services described in clause (d)(ii) of the preceding
sentence. Nothing herein is intended to preclude either party
from marketing and selling any product or service to any user,
subject to Section 3.4.4, and except as provided in Section
12.1.1.1."
(d) Section 3.3. Section 3.3 of the MAA is amended to read in its
entirety as follows:
"3.3.1. The Parties will endeavor to ensure that the
telecommunications facilities and associated services
contemplated by this Alliance are constructed and operated in
the most cost efficient manner possible. If either SBC or
Xxxxxxxx has been
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 2 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
designated the Supplying Party for a product or service, then
whenever the other Party needs such product or service (the
"Supplied Party"), such Supplied Party will seek to obtain the
needed product or service from the Supplying Party as set
forth in this Section 3.3. In such case, the Supplying Party
shall, except as set forth in Section 3.7 hereof and subject
to existing contracts and arrangements with third parties in
existence as of the Effective Date of this Agreement and as
set forth on Exhibit B, in all cases be the provider to the
Supplied Party of the products or services so long as the
Supplying Party is offering Alliance Pricing, quality
comparable to competitive products and services (including
SLAs), and commercially reasonable terms and conditions to the
Supplied Party.
3.3.2. For purposes of this Section 3.3, Xxxxxxxx shall be the
Supplying Party and SBC shall be the Supplied Party of the
following Services: (i) On-Net1 InterLATA Layer 1 transport
services including private line services and wave services to
be provided pursuant to the applicable Alliance Agreement, but
solely to the extent that such transport services are
described in such Alliance Agreement, and the characteristics
and technical specifications for such services have been set
forth in the applicable specifications exhibit (e.g.
comparable in substance and format to Exhibit B of the TSA)
attached thereto, as amended from time to time in writing by
mutual agreement of the parties (the "Layer 1 Services"); (ii)
to the extent not provided by SBC for itself pursuant to
Section 3.7, On-Net InterLATA Layer 2 data services including
ATM Services, Frame Relay Services, and wide area gigabit
ethernet services (but specifically excluding Layer 3 services
and above to be provided pursuant to the terms and conditions
set forth in the applicable Alliance Agreement, but solely to
the extent that such services are described in such Alliance
Agreement, and the characteristics and technical
specifications for such services have been set forth in the
applicable specifications exhibit (e.g. comparable in
substance and format to Exhibit B of the TSA) attached
thereto, as amended from time to time in writing by mutual
agreement of the parties (the "Layer 2 Services"); and (iii)
InterLATA voice services to be provided pursuant to the TSA or
ITSA, but solely to the extent that
----------
1 As used in this Agreement, the term "On-Net" and the term "Off-Net"
shall have the same meaning as ascribed to them in the TSA.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 3 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
such services are described in such Alliance Agreement, and
the characteristics and technical specifications for such
services have been set forth in the applicable specifications
exhibit (e.g. comparable in substance and format to Exhibit B
of the TSA) attached thereto, as amended from time to time in
writing by mutual agreement of the parties ("Voice Services")
(collectively the "Xxxxxxxx Supplied Services"). SBC shall be
the Supplying Party and Xxxxxxxx shall be the Supplied Party
with respect to platform and related services provided
pursuant to the PSA (the "SBC Supplied Services"). With
respect to any Xxxxxxxx Supplied Services that are Off-Net,
SBC may request that Xxxxxxxx arrange for such Services on its
behalf, but is not under an obligation to do so, subject to
the procedure for Off-Net Direct Purchases set forth below.
With respect to all Layer 1 Services whether first considered
On-Net or Off-Net, SBC shall seek to obtain such Service or
product from Xxxxxxxx. If Xxxxxxxx informs SBC that the
requested Service or product cannot be provided On-Net, SBC
shall be permitted to seek such Off-Net Service or product
from any third party directly ("Off-Net Direct Purchases"),
provided that SBC shall deliver to Xxxxxxxx a quarterly report
detailing all Off-Net Direct Purchases by LATA pairs and
further provided that SBC and Xxxxxxxx will, to the extent
commercially practicable, make such Off-Net Service available
to the other [********* ********************************].
Notwithstanding the foregoing, SBC and Xxxxxxxx shall
negotiate in good faith the applicable characteristics and
technical specifications of wave services or gigabit ethernet
(wide area) services at such time as Xxxxxxxx shall notify SBC
that (i) it is prepared to offer such services as the
Supplying Party to SBC and (ii) has the technical capability
to offer such services as required by SBC, and the parties
shall amend the applicable Alliance Agreement, including the
service specifications exhibit thereto, to reflect the
addition of wave services and gigabit ethernet (wide area)
services and such characteristics and technical
specifications.
Nothing in this Section 3.3.2 shall be construed to limit
either Party's rights or obligations as set forth in that
certain letter agreement between Xxxxxxxx Local Network, Inc.
and SBC Telecom, Inc. dated June 9, 2000.
3.3.3. Quality of Service Standard. In the event that either
Party fails to meet the required Quality of Service Standard
as set forth in an applicable Alliance Agreement ("QoS
Standard") with
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 4 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
respect to a particular Service or product,
[************************************************************
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*********************************].
3.3.4. Notwithstanding Section 3.3.2, SBC may procure from
third parties Service that Xxxxxxxx would otherwise provide,
in order to achieve diversity of the Service under the
following requirements ("Diverse Services").
(i) with respect to Layer 1 Services, Xxxxxxxx is unable to
provide On-Net physical diversity as defined below; or
(ii) Carrier diversity is requested in writing by the Supplied
Party's customer.
In such event, SBC must disclose to Xxxxxxxx, on a quarterly
basis, when such diversity is required. SBC shall have no
obligation to provide Xxxxxxxx with any of the details of any
customer request for carrier or physical diversity, but shall
disclose in general terms the size, scale and location of the
diversity that SBC is seeking. Xxxxxxxx shall be entitled to
an audit of SBC's compliance with this Section 3.3.4 relating
to physical and carrier diversity, which audit shall be
carried out in accordance with the provisions of
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 5 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
Article 8 below, except that (i) any such audit may be
performed not more frequently than quarterly, and not more
often than twice in any twelve month period, and (ii) SBC
shall not be required to retain documentation with respect to
its compliance with this Section 3.3.4 for more than one year.
In situations in which Xxxxxxxx is not entitled to be the
primary carrier, (e.g. uncompetitive QoS Standard, pricing),
SBC will consider Xxxxxxxx to fulfill diversity requirements
as the secondary provider.
For purposes of this Section 3.3.4, "physical diversity" has
the meaning set forth in Schedule A to this Agreement. In the
event that the Parties are negotiating applicable
characteristics and technical specifications for any Xxxxxxxx
Supplied Services or any products or services that the Parties
contemplate adding to the Xxxxxxxx Supplied Services, then the
Parties shall also negotiate in good faith the physical
diversity requirements for such product or service, and shall
include such diversity requirements in Schedule B to the TSA
or such other applicable specifications exhibit referred to in
Section 3.3.2 above.
The SBC Affiliate must stipulate at the time of order
placement individual design requirements pertaining to which
protected or unprotected circuits must be "physically diverse"
from one another. SBC shall be entitled to an audit of
Xxxxxxxx'x compliance with this Schedule A relating to its
representations to SBC of the physical infrastructure related
to the physical diversity of two circuits, which audit shall
be carried out in accordance with the provisions of Article 8
of this Agreement, except that (i) any such audit may be
performed not more frequently than quarterly, and not more
often than twice in any twelve month period, and (ii) Xxxxxxxx
shall not be required to retain documentation with respect to
its compliance with these requirements for more than one year
after the expiration of the term of such circuits.
Notwithstanding the foregoing, in all events, (i) SBC would
use Xxxxxxxx Supplied Services at least equally to that of the
largest of the other vendors supplying Diverse Services in the
context of a particular request for Diverse Services; (ii) in
no case will the use of Diverse Services in any Services
Category (as defined below) in a calendar quarter exceed
[**************************** ********************] for all
Services in such Services Category based on Xxxxxxxx' invoices
to SBC for the immediately preceding quarter; and (iii) SBC
will not obtain a diverse circuit from another carrier if the
other carrier's network is not diverse
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 6 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
from Xxxxxxxx. "Services Category" shall mean any one of the
following: (a) On-Net InterLATA Layer 1 transport services as
described and limited in clause (i) of Section 3.3.1 above;
(b) InterLATA voice services, as described and limited in
clause (iii) of Section 3.3.1 above; or (iii) all other
Services.
3.3.5. Xxxxxxxx acknowledges that SBC is contemplating
proposing a Project (as defined below) that will build
interfaces into the OSS to allow SBC agreed upon access to SBC
customer and network data necessary to insure continuity of
service (the "IT Project"). Xxxxxxxx as Project Executor (as
defined below) shall use commercially reasonable efforts to
expedite the prompt implementation of the IT Project, as
specified by SBC from time to time."
(e) Section 3.4.1.
(i) The first sentence of Section 3.4.1 of the MAA is amended
to read in its entirety as follows:
"Unless otherwise provided in other Alliance Agreements, the
Supplying Party will make its products and services (excluding
Off-Net Services, unless specifically set forth in an
applicable Alliance Agreement) available to the Supplied Party
at its direct cost plus a reasonable rate of return as
described in this Section 3.4.1 and as may be further
specified in particular Alliance Agreements (the "Cost Plus
Model"), and subject to MFN Pricing as described in Section
3.4.3 (collectively, "Alliance Pricing")."
(ii) The following new sentence is hereby added at the end of
Section 3.4.1 of the MAA:
"Off net Services shall be made available to the Supplied
Party [***********************************************] except
where an Alliance Agreement expressly provides otherwise."
(f) Section 3.4.2. The following new sentence is hereby added at
the end of Section 3.4.2 of the MAA:
[************************************************************
*************************************************************
*************************************************************
********************************]
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 7 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
(g) Section 3.4.3. The first sentence of Section 3.4.3 of the MAA
is amended to read in its entirety as follows:
[************************************************************
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(h) Section 3.7. Section 3.7 of the MAA is amended to read in its
entirety as follows:
"Nothing in any Alliance Agreement shall be construed to
prohibit (i) either Party from using its own facilities or
services owned or leased as of the Effective Date or (ii) SBC
from using its owned or leased switching facilities, or its
owned transport facilities in any SBC State, regardless of
whether such facilities are acquired now or in the future, or
(iii) SBC from using its owned equipment and related assets,
whether located in an SBC State or otherwise, for the
provision of Layer 2 and higher services, regardless of
whether such equipment is acquired now or in the future so
long as Xxxxxxxx remains the preferred provider pursuant to
Article 3 hereof for the underlying Layer 1 transport, subject
to the provisions of this Article 3, for any purpose in lieu
of using Xxxxxxxx' facilities, provided that in the event that
SBC acquires any Layer 1 transport facilities in connection
with the acquisition of stock or assets of a
telecommunications carrier (other than a carrier described in
section 12.1.1.5 below), then SBC shall be required to offer
such Layer 1 transport facilities located outside of the SBC
States to Xxxxxxxx at a price equal to the fair market value
thereof, which offer Xxxxxxxx may accept or reject in its sole
discretion without altering SBC's preferred provider
obligations pursuant to Article 3 hereof with respect to Layer
1."
(i) Section 5.1. The following new Section 5.1 is hereby added to
the MAA and existing Sections 5.1, 5.2 and 5.3 are hereby
renumbered 5.2, 5.3 and 5.4, respectively (and the reference
in existing Section 5.2 of the MAA to Section 5.3 is amended
to refer to Section 5.4):
"5.1. Project Process Generally
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 8 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
The process set forth in Sections 5 and 6 of this Agreement
which are implemented in the NDOA are intended by the Parties
to create a mechanism by which the Parties may, but are not
obligated, to work together to develop or enhance products and
Services contemplated by this Agreement and the other Alliance
Agreements. Notwithstanding anything else in this Agreement or
any other Alliance Agreement, neither party shall have any
obligation to use the Project process for the acquisition of
any product or Service and may pursue such Project on its own
or with any third party; provided, that foregoing shall not be
construed to relieve either of the Parties from (i) its
respective obligations under the preferred provider provisions
in Section 3.3 above, (ii) any express obligations relating to
Projects that have been or will be accepted by the Parties and
set forth in the NDOA or statements of work entered from time
to time pursuant to the NDOA, or (iii) any Accepted Project or
Mandatory Project that has already been agreed and reduced to
writing by the Parties."
(j) Section 11.3. The following new Section 11.3 is hereby added
to the MAA following Section 11.2 of the MAA:
"11.3. Third Party Supplied Services
'Third Party Supplied Services' means services that have been
provided to SBC or its Affiliates by persons or entities other
than Xxxxxxxx or its past and present Affiliates. SBC shall
use commercially reasonable efforts to deliver to Xxxxxxxx ,
not later than 12 months after the Effective Date (defined for
the purposes of this Section 11.3 only as set forth in the
Second Amended Joint Chapter 11 Plan of Reorganization of
Xxxxxxxx Communications Group, Inc. and CG Austria, Inc., as
amended, in Chapter 11 Case No. 02-11957), purchase orders to
acquire from Xxxxxxxx (i) those services included in the Third
Party Supplied Services that SBC is required under this
Agreement to purchase from Xxxxxxxx, and (ii) those services
included in the Third Party Supplied Services that are not
included in clause (i) above but that SBC has elected to
acquire from Xxxxxxxx. SBC agrees that with respect to any
such purchase order delivered to Xxxxxxxx, provided that
Xxxxxxxx is able to offer such service in accordance with the
terms of such purchase order on a timely basis, SBC shall not:
(i) request a price quote from any third party for such
service for the purpose of having such third party supply such
service to SBC; or (ii) agree to purchase, or purchase, such
service from any third party. Xxxxxxxx
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 9 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
shall use commercially reasonable efforts to deliver to SBC
those services to be acquired from Xxxxxxxx pursuant to the
preceding sentence not later than 6 months from the date on
which Xxxxxxxx receives service orders from SBC as required by
the preceding sentence."
(k) Section 14.1. The first three sentences of Section 14.1 of the
MAA are amended to read in their entirety as follows:
"Xxxxxxxx is a limited liability company duly organized,
validly existing and in good standing under the laws of the
State of Delaware. Xxxxxxxx has all requisite power and
authority to enter into the Alliance Agreements and to
consummate the transactions contemplated thereby. All acts and
other proceedings required to be taken by Xxxxxxxx to
authorize the execution, delivery and performance of the
Agreement and the Alliance Agreements to which it is a party
and the consummation of the transactions contemplated thereby
have been duly and properly taken."
(l) Section 14.2. Clause (i) of Section 14.2 of the MAA is amended
to read in its entirety as follows:
"(i) conflict with or result in any violation of any provision
of the certificate of formation or by-laws of Xxxxxxxx,"
(m) Section 15.14. The addresses for notices set forth in Section
15.14 of the MAA are amended to read in their entirety as
follows:
"If to SBC: SBC Operations, Inc.
000 XxXxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx, Vice President
Fax: 000-000-0000
Telephone: 000-000-0000
with a copy SBC Operations, Inc.
(which shall 000 X. Xxxxxxx
not constitute Xxx Xxxxxxx, XX 00000
notice) to: Attn: T. Xxxxxxx Xxxxx, Senior Vice
& General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 10 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
If to Xxxxxxxx: Xxxxxxxx Communications, LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Contract Management
Fax: 000-000-0000
Telephone: 000-000-0000
with a copy Xxxxxxxx Communications, LLC
(which shall One Technology Center
not constitute Xxxxx, XX 00000
notice) to: Attn: General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000"
(n) Schedule A. A new Schedule A, in the form set forth as
Schedule A to this Amendment No. 1, is hereby added to the
MAA.
2. Effect. Except as herein expressly amended, the MAA and any other
documents executed and delivered in connection therewith are each ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms. Upon the effectiveness of this Amendment
No. 1, each reference in the MAA to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import shall mean and be a reference to the MAA as
amended hereby, and each reference to the MAA in any other document, instrument
or agreement executed and/or delivered in connection with the MAA shall mean and
be a reference to the MAA as amended hereby.
3. Conditions to Effectiveness. This Amendment No. 1 shall be effective
immediately, subject only to the following conditions subsequent: (i) the filing
by all of the Plan Proponents (as such term is defined in the Second Amended
Joint Chapter 11 Plan of Reorganization of Xxxxxxxx Communications Group, Inc.
("WCG") and CG Austria, Inc. ("CG Austria") filed on August 12, 2002 with the
United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court"), in the Chapter 11 Case No. 02-11957 (the "Plan of
Reorganization")), with the written consent of The Xxxxxxxx Companies, Inc., of
modifications to the Plan of Reorganization and an amended Investment Agreement,
Stockholders Agreement and New WCG Charter (as such terms are defined in the
Plan of Reorganization), each substantially in the forms attached as Exhibit D
to that certain Stipulation and Agreement (the "Stipulation") dated as of
September 23, 2002 (the "Stipulation Date") among Xxxxxxxx, XX Austria, WCG, SBC
and the other parties thereto, (ii) the Plan of Reorganization shall have been
confirmed by the Bankruptcy Court and the Effective Date (as defined in the Plan
of Reorganization) shall have occurred on or before October 14, 2002; (iii) the
Bankruptcy Court shall have entered an order that shall have become a Final
Order (as defined in the Plan of Reorganization) on or before October 14, 2002,
approving and authorizing WCG's and CG Austria's entering into and performing
the Stipulation; and (iv) the Plan of Reorganization shall not have been
modified or amended in any manner that would affect SBC
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 11 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
or that would alter the Plan of Reorganization in any material respect without
the express prior written consent of SBC, which shall not be unreasonably
withheld (except that the Plan of Reorganization may be amended as set forth in
Exhibit D to the Stipulation without further consent from SBC). The Parties each
acknowledge and agree that the amendments and provisions set forth in Sections 1
and 2 above are not effective until the conditions subsequent set forth in
clauses (i) through (iv) in this Section 3 have been satisfied or waived in
writing by SBC. Subject to the immediately following sentence, in the event that
any of these conditions subsequent shall fail to have been satisfied or waived
by SBC in writing on or before October 14, 2002 (subject to extension as set
forth below), then this Amendment No. 1 shall be null and void, ab initio, and
the Parties shall be restored to their respective rights and obligations as in
existence immediately prior to the Stipulation Date. In the event that Section
4.2 of the Plan of Reorganization is amended to extend the date of October 14,
2002 to a later date (but no later than November 14, 2002 except as provided in
the immediately following sentence), this Section 3 shall automatically (without
any action of the Parties or other signatories hereto) be amended so that
references to October 14, 2002 herein are replaced with reference to the date in
Section 4.2 of the Plan of Reorganization, as so amended; provided, however,
that no such amendment will be effective if, at the time of such amendment to
the Plan of Reorganization, the Investment Agreement, the Restructuring
Agreement or the TWC Settlement Agreement (as such terms are defined in the Plan
of Reorganization) shall have been terminated. In the event that all of the
conditions subsequent set forth in this Section 3 shall have been satisfied on
or before November 14, 2002, except that the Effective Date shall not have
occurred and none of the Investment Agreement, the Restructuring Agreement or
the TWC Settlement Agreement shall have been terminated, then this Amendment No.
1 shall not terminate if the Effective Date occurs on or before January 13,
2003; provided that this Amendment No. 1 shall be null and void, ab initio, and
the Parties shall be restored to their respective rights and obligations as in
existence immediately prior to the Stipulation Date (i) if the Effective Date
shall not have occurred by January 13, 2003 or (ii) upon termination of the
Investment Agreement, the Restructuring Agreement or the TWC Settlement
Agreement.
4. Representations and Warranties. Each Party to this Amendment No. 1
represents and warrants to the other as follows:
(a) The execution, delivery and performance by such party of this
Amendment No. 1 and the performance by such party of the MAA as amended
hereby (i) have been duly authorized by all necessary corporate or
other action and (ii) do not and will not contravene its organizational
documents or any applicable law. Such Party has all requisite corporate
or limited liability company power and authority to enter into this
Amendment No. 1 and to perform its obligations hereunder and under the
MAA, as amended hereby.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 12 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
(b) This Amendment No. 1 and the MAA, as amended hereby, constitute the
legal, valid and binding obligations of such party, enforceable against
such party in accordance with their terms.
5. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts with the same effect as if all Parties hereto had signed the same
document. All counterparts shall be construed together and shall constitute one
instrument. Any such counterpart may be executed by facsimile transmission.
6. Headings. Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
No. 1 for any other purpose.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 13 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No.
1 to the MAA effective as of the date the last Party to this Amendment No. 1
signs below.
XXXXXXXX COMMUNICATIONS, LLC
By : /s/ Xxxxx Xxxxxx
----------------------------------------
Name:
Title:
--------------------------------------------
(DATE)
SBC COMMUNICATIONS INC.
By : /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Sr. EVP and CFO
9/24/02
--------------------------------------------
(DATE)
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
Page 14 of 14
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
SCHEDULE A
For purposes of Section 3.3.4 of the Master Alliance Agreement, the term
"physical diversity" means: (a) with respect to two or more separate, distinct
circuits whether protected or unprotected, that the physical paths of such
circuits be at least twenty-five feet (25') from one another, provided that the
two paths may get closer than this limit without violating these requirements of
physical diversity if the section of close proximity is within a physical
Point-of-Presence (POP) or building containing that POP and each circuit is
independently hardened via the use of rigid conduit outside of the POP walls,
and further provided that, if the two (or more) circuits traverse the same POP,
each circuit maps through fully separate and distinct transmission, switching,
and routing equipment, such that it offers no single point of failure in the
network; and (b) with respect to transmission, switching, and routing equipment,
that they are completely independent of one another with no shared common
hardware or software components with the data or control planes.
Notwithstanding, these requirements for physical diversity should not be
construed to require separate network management systems such as Naviscore.
Termination of the two circuits on the same LD voice switch will not violate
these physical diversity requirements if the circuits are provisioned to
separate SPMs or line shelves.
In addition to the foregoing, physical diversity between two or more separate
and distinct circuits shall require all of the following:
o Segregated right-of-ways or paths for conduit containing fiber
cabling as described above;
o Segregated POP entrance facilities for conduit/fiber;
o Segregated fiber cabling as described above;
o Segregated transmission, switching, or routing equipment with
no commonality of equipment components; and
o Fully protected power systems within a single POP.
This definition of physical diversity does not apply to wave services, wide area
gigabit ethernet services or any other services that do not, as of September 23,
2002, constitute Xxxxxxxx Supplied Services. In the event that the Parties
negotiate applicable characteristics and technical specifications for any such
services, then the Parties shall also negotiate in good faith either an
amendment to Schedule A or to Schedule B of the TSA setting forth the physical
diversity requirements for such product or service.
This definition for "physical diversity" shall be independent of the
industry definition of "path diversity for a single protected transmission
system" which primarily
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
i
AMENDMENT NO. 1 TO MASTER ALLIANCE AGREEMENT
stipulates only non-collapsed, diverse fiber route requirements, which is
considered a subset of the physical diversity definition.
This same definition shall apply to the local components of the service
as well. SBC will not require Xxxxxxxx to provide physical diversity across long
haul circuits if the local transport circuits are not as diverse as the long
haul circuits.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 1 is not for use or
disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third
party representatives, except under written agreement by the contracting
Parties.
ii
