EXHIBIT 10.46
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
AMENDMENT NO. 3
TO
TRANSPORT SERVICES AGREEMENT
This THIRD AMENDMENT ("Amendment No. 3") to the Transport Services
Agreement, effective as of February 8, 1999, as amended by Amendment No. 1
thereto dated as of September 29, 2000 and Amendment No. 2 thereto (as so
amended, the "TSA"), is made and entered into as of September 23, 2002, by and
among Xxxxxxxx Communications, LLC, a Delaware limited liability company
previously formed as Xxxxxxxx Communications, Inc. ("Xxxxxxxx"), SBC Operations,
Inc. and Southwestern Xxxx Communications Services, Inc., Delaware corporations
(collectively "SBCS"). Xxxxxxxx and SBCS may be referred to individually as
"Party" or collectively as the "Parties."
WHEREAS, the Parties desire to amend the TSA as set forth below;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein, Xxxxxxxx and SBCS agree as follows:
1. Amendments. The TSA is hereby amended as follows:
(a) Preamble. The preamble to the TSA is amended to read in its
entirety as follows:
"This Transport Services Agreement (this "Agreement") is made
as of the Effective Date, by and between Xxxxxxxx
Communications, LLC, previously formed as Xxxxxxxx
Communications, Inc., a Delaware limited liability company
("Xxxxxxxx"), with its principal place of business at Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and SBC Operations,
Inc. and Southwestern Xxxx Communications Services, Inc.,
Delaware corporations (collectively "SBCS" and together with
Xxxxxxxx, the "Parties"), with their principal places of
business at 000 Xxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxx 00000, for
the provision of telecommunications services, subject to this
Agreement and as set forth in this Agreement."
(b) Section 1.1. Section 1.1 of the TSA is amended to add at the
end thereof a reference to a new Schedule P as follows:
"Schedule P - Market Index Pricing Methodology"
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
(c) Section 1.3. Section 1.3 of the TSA is amended to add or
restate in their entirety, as applicable, the following
definitions:
"'On-Net' - means a circuit traversing the Xxxxxxxx Network
both end points of which originate or terminate in a city with
a Xxxxxxxx designated Xxxxxxxx POP, Xxxxxxxx MAP, or such
other location where Xxxxxxxx maintains terminal equipment.
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'Xxxxxxxx MAP' - means a metropolitan access point that
extends the reach of the Xxxxxxxx' Network beyond a Xxxxxxxx'
POP to various points within a metropolitan area."
(d) Section 2. The first paragraph of Section 2 of the TSA is
amended to add the following two new sentences immediately
after the first sentence in Section 2:
"In addition, Xxxxxxxx may from time to time propose to offer
additional products or services under this Agreement. Upon
receipt of written notice from Xxxxxxxx of such a proposal,
representatives of each Party shall meet within 30 days, or
such longer period as the Parties may reasonably agree, in
order to negotiate in good faith (i) whether the addition of
such product or service shall be consistent with the
objectives of the TSA and the other Alliance Agreements, and,
if so, (ii) the appropriate characteristics and technical
specifications of such product or service."
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
(e) Section 3.1.4. Section 3.1.4 of the TSA is amended to read in
its entirety as follows:
"Off-Net Services. Off-Net Services are provided
[*****************************]. Notwithstanding anything to
the contrary herein, no Price Cap applies to Off-Net
Services."
(f) Section 3.9. The following new Section 3.9 is hereby added
immediately following Section 3.8 of the TSA:
"MFN Pricing. Notwithstanding this Section 3 or Section 3.4.3
of the MAA, SBCS Rates as determined pursuant to Schedule P
shall satisfy the requirements of this Section 3 with respect
to MFN Pricing and adjustments."
(g) Section 8. Section 8 of the TSA is amended to read in its
entirety as follows:
"8.1. Disconnection of Services. SBCS may disconnect any 1+
Voice Service on one business days notice without any
liability to Xxxxxxxx other than any termination liability
imposed by a Local Access Provider, including an SBC LEC
Affiliate or any other Third Party provider including an
Off-Net InterLATA Service provider, which shall be charged
[**************************]. SBCS may disconnect any
non-voice On-Net Service provided hereunder before the
expiration of the Minimum Term (as defined in Section 8.2) or
any renewal term, if applicable, by providing written
notification to Xxxxxxxx thirty (30) days in advance of the
effective date of disconnect. [******************************
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PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
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****************************************]; plus (v) any
termination liability associated with Local Access, Off-Net
InterLATA Service, or any other Third Party provided Service
including those of an SBCS LEC Affiliate. These Third Party
charges shall be charged [***** *******************]. The
Parties agree that the actual damages in the event of such
disconnection would be difficult or impossible to ascertain,
and that the disconnection charge in this Section 8.1 is
intended, therefore, to establish liquidated damages and is
not intended as a penalty.
8.1.1 Xxxxxxxx will use commercially reasonable
efforts to notify SBCS on a monthly basis of all circuits with
a Minimum Term or renewal term which will expire within ninety
(90) days. If SBCS does not notify Xxxxxxxx of its intent to
disconnect or renew such circuits within such ninety 90 day
period, Xxxxxxxx will continue to provide such Service on a
month to month basis at the then existing rate applicable to
such circuit for sixty (60) days. If SBCS does not notify
Xxxxxxxx of its intent to disconnect or renew the circuit with
such sixty (60) day period, the circuit will renew for a one
year Minimum Term at the applicable one year rate.
8.2. Minimum Terms. The minimum term associated with
each non-voice Service will be as set forth on the Service
Order (the "Minimum Term"). SBCS may order non-voice Services
that have a monthly, a one year, or a three year Minimum Term.
If no Minimum Term is specified on the Service Order, the
Minimum Term shall be one year."
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
(h) Section 27.8. The following new Section 27.8 is hereby added
immediately following Section 27.7 of the TSA:
"With respect to a particular product or Service offered under
this Agreement, the QoS Standard referenced in the MAA is:
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(i) Section 35. The addresses for notices set forth in Section 35
of the TSA are amended to read in their entirety as follows:
"If to SBCS: Southwestern Xxxx Communications
Services, Inc.
0000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, President
Telephone Number: 000 000-0000
Facsimile Number: 000 000-0000
and 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 Xxxx Xxxxxxx Street,
not constitute Xxx Xxxxxxx, XX 00000
notice) to: Attn: T. Xxxxxxx Xxxxx,
Senior Vice President & General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
If to Xxxxxxxx: Xxxxxxxx Communications, LLC.
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Contract Management
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
with a copy Xxxxxxxx Communications, LLC.
(which shall One Technology Center
not constitute Xxxxx, XX 00000
notice) to: Attn: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000"
(j) Schedule P. A new Schedule P, in the form set forth as
Schedule P to this Amendment No. 3, is hereby added to the
TSA.
2. Effect. Except as herein expressly amended, the TSA 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. 3, each reference in the TSA to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import shall mean and be a reference to the TSA as
amended hereby, and each reference to the TSA in any other document, instrument
or agreement executed and/or delivered in connection with the TSA shall mean and
be a reference to the TSA as amended hereby.
3. Conditions to Effectiveness. This Amendment No. 3 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
Communications Inc. ("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,
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
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 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. 3 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. 3 shall not
terminate if the Effective Date occurs on or before January 13, 2003; provided
that this Amendment No. 3 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. 3
represents and warrants to the other as follows:
(a) The execution, delivery and performance by such party of
this Amendment No. 3 and the performance by such party of the
TSA 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. 3 and to perform its obligations hereunder and
under the TSA, as amended hereby.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
(b) This Amendment No. 3 and the TSA, 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. 3 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. 3 for any other purpose.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No.
3 to the TSA effective as of the date the last Party to this Amendment No. 3
signs below.
XXXXXXXX COMMUNICATIONS, LLC
By : /s/Xxxxx Xxxxxx
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Name:
Title:
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(DATE)
SBC OPERATIONS INC.
By : /s/ Xxxx X. Ireland
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Name: Xxxx X. Ireland
Title: President and Chief Executive
9/24/02
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(DATE)
SOUTHWESTERN XXXX COMMUNICATIONS SERVICES, INC.
By : /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President, SBC Long Distance
9/23/02
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(DATE)
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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 9
AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED
SCHEDULE P
SIX-PAGE SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
PROPRIETARY INFORMATION
This information contained in this Amendment No. 3 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
