FOURTH AMENDMENT TO CONTRACT FOR ALASKA ACCESS SERVICES
Exhibit
10.157
***
Confidential Portion has been omitted pursuant to a request for confidential
treatment by the Company to, and the material has been separately filed with,
the SEC. Each omitted Confidential Portion is marked by three
Asterisks.
FOURTH
AMENDMENT TO
This FOURTH AMENDMENT to the CONTRACT FOR ALASKA ACCESS SERVICES
is made effective as of the 1st day of
January, 1999, between GENERAL
COMMUNICATIONS, INC. and its wholly owned subsidiary, GCI COMMUNICATION
CORP., an Alaska corporation (together “GCI”) with offices located at
0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxx 00000-0000, and MCI TELECOMMUNICATIONS CORPORATION,
a Delaware corporation, (“MCI”) with offices located at
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000.
WHEREAS, GCI and MCI entered
into that certain Contract for Alaska Access Services dated January 1, 1993, as
amended by the First Amendment to Contract for Alaska Access Services dated
March 1, 1996, and the Third Amendment1 to Contract for Alaska Access Services,
effective on March 1, 1998 (collectively, the “Agreement”); and
WHEREAS, On September 14, 1998
MCI Communications Corporation (the parent company of MCI) and WorldCom, Inc.
merged to create MCI WORLDCOM, Inc., and as a result of such merger, MCI is now
an affiliate of WorldCom Network Services, Inc. (“WNS”); and
WHEREAS, GCI, MCI and WNS
desire to amend the Agreement to add WNS as a party to the Agreement and to
further modify the Agreement in accordance with the terms and conditions set
forth herein.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
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1.
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Definition
of Terms. All capitalized terms used in this Fourth
Amendment but not defined herein shall have the meanings given to such
terms in the Agreement.
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2.
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New
Definitions. Section 1
of the Agreement is hereby amended to add the following new
definitions:
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“H. ***:
WNS MTS traffic that originates outside of Alaska and is sent to GCI for
termination in Alaska.”
“I. ***
Alaska *** and *** Services: *** and *** services obtained from GCI by MCI
and/or WNS where one or more termination points reside within
Alaska.”
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3.
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Utilization
of GCI. Section 2.A. of the Agreement is hereby amended as
follows:
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"A. MCI and WNS
Traffic. MCI shall utilize the transmission services of GCI exclusively for all
MCI Traffic. WNS shall use commercially reasonable efforts to utilize the
transmission services of GCI for the *** and the *** Alaska *** and ***
Services, however, GCI agrees and acknowledges that there may be situations in
which it may be necessary or prudent for WNS to utilize the transmission
services of a third party (e.g. overflow traffic). GCI will transmit all MCI
Traffic and WNS traffic as follows:"
1 A second amendment to Contract for Alaska Access Services was never signed by MCI and GCI.
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4.
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Delivery
of Traffic. Section
2.A. of the Agreement is hereby amended to add the following new
subsections:
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“(8)
*** WNS shall deliver *** to GCI’s POP in Seattle,
Washington. GCI shall route all *** received at the Seattle POP to
the appropriate destination in Alaska. GCI will protect and restore
the *** in accordance with Section 2.A.(7).”
“(9) *** Alaska ***
and *** Services. MCI and/or WNS shall interconnect with GCI at the
GCI POP in Seattle, Washington. GCI shall provide the bandwidth
required by MCI and/or WNS to the Alaska destination and shall coordinate the
connection to the customer location.”
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5.
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Charges.
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(a)
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MCI Northbound
Traffic. Section 2.B.(1) of the Agreement is hereby
amended to add the following
provision:
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“Notwithstanding
anything contained in this Agreement to the contrary, *** on April 1, 1999, the
following rates shall apply to all MCI Northbound Traffic:
Dates Rate Per
Minute
04/01/1999 to
12/31/1999 $***
01/01/2000 to
12/31/2001 $***
01/01/2002 and
thereafter $***
There shall be no
time of day discount. *** shall pay the *** access and all Alascom
interexchange charges for the *** of MCI Northbound Traffic.”
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(b)
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MCI Southbound
Traffic. Section 2.B.(2) of the Agreement is hereby
amended to add the following
provision:
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“Notwithstanding
anything contained in this Agreement to the contrary, commencing on April 1,
1999, the following rates shall apply to all MCI Southbound Traffic (except for
***):
Dates Rate Per
Minute
04/01/1999 to
12/31/1999 $***
01/01/2000 to
12/31/2001 $***
01/01/2002 and
thereafter
$***
There shall be no
time of day discount. *** shall pay the *** access and all Alascom
interexchange charges for the *** of MCI Southbound Traffic. Any
query charges associated with the routing of MCI Southbound Traffic due to FCC
Docket #86-10 shall be passed on to ***, without any xxxx-up.”
2
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(c)
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*** Section
2.B. of the Agreement is hereby amended to add the following new
subsection:
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“(8) *** shall
billed at the rates set forth below. MCI, WNS and GCI shall negotiate
the pricing for services as outlined in Sections 2.A.(7)and (8).
Dates Rate Per
Minute
01/01/1999 to
03/31/1999 $***
04/01/1999 to
12/31/1999 $***
01/01/2000 to
12/31/2001 $***
01/01/2002 and
thereafter $***
There shall be no
time of day discount. *** shall pay the *** access and all Alascom
interexchange charges for the *** of ***.”
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(d)
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*** and ***
Services. Section 2.B. of the Agreement is hereby
amended to add the following new
subsection:
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“(9) *** and ***
Services. *** and *** Services shall be at the rates set forth in GCI
FCC Tariff #*** and such rates shall reflect the requested terrestrial or
satellite bandwidth. Each month GCI shall calculate the *** and
*** Service charges for all *** requirements of *** and below and a
*** will be calculated and applied as follows:
*** of the ***
shall be applied to the following month’s MCI Northbound Traffic invoice and
shall be identified on such invoice as “Alaska *** and *** Contract
***”;
*** of the ***
shall be applied to the following month’s MCI Southbound Traffic invoice and
shall be identified on such invoice as “Alaska *** and *** Contract
***.”
Further, each month
GCI shall calculate the *** and *** Service charges for all *** requirements of
*** and *** level services and a *** will be calculated and applied as
follows:
*** of the ***
shall be applied to the following month's MCI Northbound traffic invoice and
shall be identified on such invoice as "Alaska *** and *** Contract
***";
*** of the ***
shall be applied to the following month's MCI Southbound Traffic invoice and
shall be identified on such invoice as "Alaska *** and *** Contract
***."
In
the event that the above *** cannot be fully used to offset the applicable
invoice, the remaining amount of such *** shall be applied as directed by MCI or
refunded to MCI upon request.”
6. Billing. Section 2.C. of
the Agreement is hereby deleted in its entirety and replaced with the
following:
“Billing. GCI shall xxxx MCI monthly
for the services delivered to MCI as outlined in this Agreement. MCI
will pay by check within 25 days after receipt of GCI’s invoice for such
services. GCI shall xxxx WNS monthly for the services delivered to
WNS as outlined in this Agreement. WNS will pay by check within 25
days after receipt of GCI’s invoice for such services.”
3
7. Price
Protection. Section 2.F. of
the Agreement is hereby deleted in its entirety and replaced with the
following:
“Price Protection. Notwithstanding
anything to the contrary, GCI shall adjust the pricing for services provided
under this Agreement so that GCI shall charge MCI or WNS, as applicable, (i) no
more than it charges any other customer for any reasonably comparable mix of
services, or (ii) if there is no reasonably comparable mix, no more than it
charges any other customer for one or more of the services that constitutes a
material part of the services purchased by MCI or WNS, as applicable, under this
Agreement if there is no substantial discount otherwise provide to MCI or WNS,
as applicable, under this Agreement that offsets such other customer’s pricing
advantage.”
8. Notices. Section 5.C. of
the Agreement is hereby amended to include the following notice address for WNS
and MCI:
“If to WNS or
MCI: MCI WorldCom,
Inc.
National Carrier Policy &
Planning
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Vice President
with a copy
to: MCI
WorldCom, Inc.
LPP - Network & Facilities
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000"
9. Amendment
Signing Bonus. Upon the full execution of this Fourth
Amendment, MCI shall be paid a bonus by GCI. The amount of the bonus
shall be equal to (a) the number of minutes of *** by GCI between *** and ***,
multiplied by $*** per minute, plus (b) $***. The bonus shall be
applied as a credit against the September 1999 invoice(s) and the December 1999
invoice(s). The September credit shall be equal to $*** plus 50% of
the amount of part (a) in the bonus calculation in the second sentence of this
paragraph. The December credit shall be equal to the remaining 50% of
the amount of part (a) in the bonus calculation in the second sentence of this
paragraph. In the event that a portion of the September or December
bonus credits cannot be fully used to offset invoiced charges, the remainder of
the bonus will carry forward to the following months until such remainder is
fully depleted.
10. Consolidation
of MCI and WNS. In the event that
MCI and WNS are merged or otherwise consolidated in connection with post-merger
efforts to consolidate the affiliates of MCI Communications Corporation and
WorldCom, Inc., the parties hereby acknowledge and agree that the *** provision
contained in Section *** of the Agreement and applicable to MCI, not WNS, shall
be limited to the traffic and services characterized as *** traffic prior to
such merger or consolidation and shall not be interpreted to create potentially
conflicting *** obligations for MCI or WNS.
11. Effect of
Amendment. All terms and conditions of the Agreement not
modified by this Fourth Amendment shall remain in full force and
effect.
12. Further
Assurances. The parties shall cooperate in good faith, and
shall enter into such other instruments and take such other actions as may be
necessary or desirable, to fully implement the intent of this Fourth
Amendment.
13. Counterparts. This
Fourth Amendment may be executed in counterparts, each of which shall be deemed
an original and both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned authorized
representatives of GCI, MCI and WNS have executed and delivered this Fourth
Amendment as of the date first written above.
GCI
COMMUNICATION CORPORATION
By: /s/ Xxxxxxx
Westlund_____________
Name: Xxxxxxx
Westlund_____________
Title: Vice President, Carrier
Relations__
MCI
TELECOMMUNICATIONS WORLDCOM
NETWORK SERVICES, INC.
CORPORATION
By: /s/ Xxx
Slocum__________________ By:
/s/ Xxx
Slocum___________________
Name: Xxx
Slocum__________________ Name:
Xxx
Slocum___________________
Title: Vice
President________________ Title:
Vice
President__________________
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