Exhibit 10.23
SEVENTH AMENDMENT TO
MASTER SERVICES AGREEMENT
Confidential Treatment. The portions of this exhibit that have been replaced
with "[*****]" have been filed separately with the Securities and Exchange
Commission and are the subject of an application for confidential treatment.
This Seventh Amendment ("Amendment") is effective as of April 1, 2002
(the "Seventh Amendment Effective Date") and amends and supplements that certain
Master Services Agreement dated as of December 9, 1999 (the "Agreement") by and
between Valor Telecommunications Enterprises, LLC (formerly known as dba
Communications, LLC), a Delaware limited liability company ("Client") and ALLTEL
Information Services, Inc., an Arkansas corporation ("ALLTEL") (each a "Party"
and collectively, the "Parties").
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and other good and valuable considerations, the Parties agree
as follows:
1. Access Lines. The definition of "Access Lines" as set forth in Section
1.1(a) of the Agreement is hereby replaced in its entirety with the following:
(a) "Access Lines" shall mean (i) the access lines, as from time
to time constituted, that are located in exchanges in New
Mexico, Texas and Oklahoma, which were originally acquired by
Client from GTE prior to September 30, 2000, and (ii) those
other access lines owned by Client and as to which Client has
directed ALLTEL to provide Managed Operations Services
pursuant to this Agreement."
2. Term. The definition of "Expiration Date" as set forth in Section
1.1(h) of the Agreement is hereby replaced in its entirety with the following:
"(h) "Expiration Date" shall mean the earliest of (i) December 31, 2006
or (ii) the date this Agreement is terminated in accordance with Article 19."
3. Services. The following sentence from Section 2.1 of the Agreement
shall be deleted:
"Except for the Training Services described in Exhibit M, the Call
Center Services described in Exhibit D, and the Services described in
Exhibit P, ALLTEL shall be the sole and exclusive provider of the
Services to Client with respect to the Access Lines."
The following language shall be inserted in place of the deleted sentence:
"ALLTEL shall be the sole and exclusive provider of the Services to
Client with respect to that portion of the Access Lines described in
subsection (i) of the definition of Access Lines, as long as such
Access Lines are owned by Client or one of its affiliated entities.
ALLTEL shall not be the sole and exclusive provider of the Training
Services described in Exhibit M, the Call Center Services described in
Exhibit D, or the Services described in Exhibit P. Nor shall Client be
obligated to use ALLTEL as the provider of Services with respect to
that portion of the Access Lines described in subsection (ii) of the
definition of Access Lines. Client shall have the right to provide
Services itself or to
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contract with other providers to obtain Services in whole or in part
with respect to only that portion of the Access Lines described in
subsection (ii) of the definition of Access Lines."
4. Access Line Charges. Section 2.1 of Exhibit E is hereby replaced in its
entirety with the following:
"2.1 ACCESS LINE CHARGES. For each Access Line for which ALLTEL is
then providing Managed Operations Services, Client shall pay the
incremental charge ("Access Line Charges" or "ALCs") set forth in the
following table. The number of Access Lines upon which the ALC is
calculated shall be determined as of the end of the month based on the
Customer Access Line and Equipment Report generated through CAMS, plus
any non-LEC lines, if applicable. The ALCs may be modified over time
only as expressly set forth in the Agreement and this Exhibit E. ALLTEL
shall invoice Client the ALCs monthly, one month in arrears. The ALCs
of $[*****] for all volumes up to 600,000 Access Lines in the table
below shall be the "Minimum Monthly ALC".
----------------------------------------------------------------------------------------------
INCREMENTAL VOLUMES PRICING LEVELS FOR INCREMENTAL VOLUME (IN $/PER
(IN # ACCESS LINES) ACCESS LINE)
----------------------------------------------------------------------------------------------
All Access Lines Up to 600,000 US$[*****] per month
----------------------------------------------------------------------------------------------
600,001 through 750,000 US$[*****] per line per month
----------------------------------------------------------------------------------------------
750,001- 1,000,000 US$[*****] per line per month
----------------------------------------------------------------------------------------------
For example, if in a month during the Term Client has 650,000 Access
Lines, the monthly Access Line Charge (exclusive of any adjustments
otherwise provided for in the Agreement) would be $[*****], which is
the sum of (i) $[*****] and (ii) 50,000 Access Lines at $[*****] per
Access Line.
In the event that Valor elects to have ALLTEL process Access Lines in
excess of 1,000,000, Client and ALLTEL agree to negotiate in good faith
to determine the fair and reasonable marginal Access Line Charges for
ALLTEL's processing of Access Lines exceeding 1,000,000. At such time
as ALLTEL begins processing 950,000 Access Lines for Client or at any
other time at Client's request, ALLTEL and Client shall begin
negotiations with respect to Access Line Charges for those Access Lines
above 1,000,000. If the Parties do not reach an agreement as to a
revised Access Line Charge, ALLTEL shall charge Client $[*****] per
Access Line per month for each Access Line in excess of 1,000,000
Access Lines until the Parties agree otherwise."
5. Credits / Waiver of Charges.
(a) ALLTEL shall provide Client a credit on the March
2002 invoice from ALLTEL in the amount of $[*****].
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(b) On a one time basis only, ALLTEL agrees to:
(i) waive the $600,000 charge to Client for call center
business processes and procedures which are described
on the January, 2002 invoice from ALLTEL to Client.
Client acknowledges that ALLTEL has satisfied in full
its obligations with respect to the development and
delivery of such business processes and procedures;
(ii) waive all invoiced amounts to Client for the Service
Level Measurement Payments for the months January,
2001 through December, 2001 that ALLTEL might
otherwise be entitled to invoice and collect from
Client pursuant to the terms of Exhibit F of the
Agreement;
(iii) not charge Client the monthly charges for the minimum
Variable Staff requirement for five (5) FTE's
providing Application Services and Development for
the months of November, 2001 and March, 2002, with
the amount of such monthly charges equal to 132 hours
times 5 FTEs times 2 months times $[*****] per hour
or $[*****] in the aggregate. Client agrees to pay
ALLTEL in accordance with the Agreement for all
Variable Staff FTE's in November, 2001 and March,
2002 in excess of the five (5) FTEs described above
that performed Application Services and Development.
ALLTEL shall invoice Client for these five (5) FTEs
and any additional FTEs for the remainder of the Term
beginning as of April 1, 2002; and
(iv) not charge Client for the five (5) on-site business
analysts described in Section 8(a) of this Seventh
Amendment for the work done by these analysts during
the period from January 1, 2002 through December 31,
2002.
6. Cost of Living Adjustments.
(a) 2002 COLA Matters. ALLTEL agrees that the per line Access Line
Charges (including the charges set forth in Section 4 of this Seventh Amendment)
shall not be adjusted for cost of living effective January 1, 2002 and shall not
be subject to further adjustment for cost of living prior to January 1, 2003.
Cost of living adjustments for Access Line Charges pursuant to Section 8.1 of
Exhibit E shall resume effective January 1, 2003 in accordance with the terms of
this Section 6. The invoice for Access Line Charges submitted by ALLTEL for the
month of March, 2002 shall not include a COLA adjustment and shall contain a
credit in the amount of $59,442.01, inclusive of sales tax, to reverse the COLA
adjustment included in the Access Line Charges for the months of January and
February, 2002, for which Client has already paid. All other charges which are
subject to cost of living adjustment, including those adjustments effective
January 1, 2002, shall remain as adjusted.
(b) Section 8.1 of Exhibit E is replaced in its entirety with the
following:
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"8.1 COLA ON THE ALCS.
(a) INDEX. The Parties agree to use the October 31
American Compensation Association Index, Information
Services Industry, National Index and the column
titles COLA/General Increase for the labor component
("ACA Index") for purposes of determining the annual
COLA adjustment for Access Line Charges. The labor
component is forty-six percent (46%). The Parties
agree that this percentage shall be fixed during the
Term.
(b) CALCULATION. Beginning January 1, 2003 and each
January 1 thereafter during the Term, ALLTEL will
calculate and begin invoicing Client for the COLA
increases on the Access Line Charges. The increase
for COLA in a given year will be one-hundred percent
(100%) of the increase of the ACA Index for the
preceding twelve months as of October 31 of the year
immediately preceding the adjustment date for the
labor component (46%) of the Access Line Charges.
Accompanying each ALLTEL invoice that includes a new
COLA increase, ALLTEL will provide Client with the
raw data supporting ALLTEL's calculations of the COLA
increase.
(c) EXAMPLE. Assuming an ACA Index of 5.6% on October 31,
2002, the COLA increase on January 1, 2003 would be
calculated as follows: (Access Line Charges x 46%) x
5.6%. Assuming an ACA Index of 4.5% on October 31,
2003, the COLA increase on January 1, 2004 would be
calculated as follows: (Access Line Charges x 46%) x
4.5%.
7. Performance Feedback. Subject to the implementation of the system as
provided herein, ALLTEL will, at no charge to Client, provide Client with the
Performance Feedback (PFB) system, as PFB exists on the Seventh Amendment
Effective Date. ALLTEL will not charge Client for the implementation of the PFB
system. Modifications to PFB will be the responsibility of the Variable Staff in
accordance with the terms of the Agreement. Promptly after the Seventh Amendment
Effective Date the Parties will use commercially reasonable efforts to agree
upon an implementation plan, which plan shall be prepared by ALLTEL with
Client's input and submitted to Client for approval. Client will assign an
individual who will serve as Client's primary point of contact for all
communications, and coordination of all implementation activities, with ALLTEL
with respect to the implementation of PFB. Upon completion of the implementation
of PFB, the responsibilities of the Parties with respect to operation of PFB are
set forth on the attached Schedule A, which Schedule shall constitute new
Section 12 to Attachment 1 of Exhibit A of the Agreement.
8. Personnel Resource Matters.
(a) Business Analysts. Client acknowledges that ALLTEL has been
providing five (5) on-site business analysts to support the ALLTEL Account
Manager at the Local Offices. ALLTEL will continue to provide such support to
the ALLTEL Account Manager during the
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remainder of the calendar year 2002 at no charge to Client. The business
analysts provided pursuant to this provision shall be under the supervision and
direction of ALLTEL. The Parties acknowledge that the provisions of Sections 5.2
and 5.3 of the Agreement shall apply to such business analysts, and Client
agrees to provide premises for such business analysts that adjoins the premises
provided to the ALLTEL Account Manager.
(b) Variable Staff.
(i) Additional Staff for Amendment SER's. Attached hereto
as Schedule B is a list of 20 enhancements to the ALLTEL Systems that have been
requested by Client (the "Amendment SERs"). Client shall prioritize, by ranking,
the Amendment SERs and provide such prioritization to ALLTEL in writing. Within
sixty (60) days after ALLTEL's receipt of such prioritization, ALLTEL, at no
charge to Client, shall provide Client ten (10) Variable Staff FTEs to begin the
development process and later develop the Amendment SERs and such other SERs as
Client requests. Client shall have the right to prioritize the SER work
performed by the ten (10) Variable Staff FTEs. The SER work by the ten (10)
Variable Staff FTEs shall be done by individuals qualified to perform the work
required. Such FTEs shall be provided for a period of twelve (12) months
following the date such resources are initially provided by ALLTEL (the "SER
Work Period"). The Variable Staff FTEs provided under this Section 8(b)(i) will
be located at an ALLTEL facility. Client agrees that the use of the Variable
Staff FTEs provided by ALLTEL pursuant to this Section 8(b)(i) shall, to the
extent reasonably practicable, be spread equally over 12 months and such usage
shall not be unreasonably bunched or accumulated. In the event that Client does
not use all of the 10 FTEs during the twelve (12) month period provided herein,
no carryover shall apply beyond such twelve (12) month period. Section 21.7
(Professional and Workmanlike) shall apply to the services performed by the
above described 10 FTEs. ALLTEL is providing no assurances to Client that the
Variable Staff FTEs are capable of completing all of the Amendment SERs within
the above described twelve month period. Prior to commencing any SER development
work, ALLTEL shall provide Client with a good faith estimate of the scope, time
and price of the work. ALLTEL will reasonably work with Client to answer any
questions raised by Client with respect to such estimate and further refine the
estimate, if necessary. Any work performed by the ten (10) FTEs during the SER
Work Period shall be performed on a reasonable best efforts basis. ALLTEL is not
guaranteeing that any such SER work will be completed within any time and/or
price estimate of ALLTEL.
(ii) Additional Variable Staff Resources for Amendment
SERs. In the event Client wishes to acquire additional Variable Staff resources
to complete the Amendment SERs or any other SER work that Client requests, such
Variable Staff resources, to the extent available, will be provided within sixty
(60) days after notice from Client of the additional resources requested by
Client. ALLTEL's charges for the additional Variable Staff resources provided
pursuant to this Section 8(b)(ii) who work on the Amendment SERs shall (i) in
the event Client acquires such resources on a short-term basis (as provided in
Section 9.4 of the Agreement), be [*****] of the applicable rate set forth in
Section 5.3 of Exhibit E of the Agreement (as adjusted), or (ii) in the event
Client acquires such resources on a long-term basis (as provided in Section 9.4
of the Agreement), be one hundred percent (100%) of the applicable rate set
forth in Section 5.1 of Exhibit E of the Agreement (as adjusted). ALLTEL's
charges for
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the additional Variable Staff resources provided pursuant to this Section
8(b)(ii) who work on any other SER work that Client requests shall (i) in the
event Client acquires such resources on a short-term basis (as provided in
Section 9.4 of the Agreement), be one hundred percent (100%) of the applicable
rate set forth in Section 5.3 of Exhibit E of the Agreement (as adjusted), or
(ii) in the event Client acquires such resources on a long-term basis (as
provided in Section 9.4 of the Agreement), be one hundred percent (100%) of the
applicable rate set forth in Section 5.1 of Exhibit E of the Agreement (as
adjusted)
(iii) Scheduling of Variable Staff Resources. In order to
promote efficiency in the cost of providing for, and time to respond to,
Client's request for Applications Support and Development products and services,
ALLTEL will designate a work-flow manager, who shall be a person already within
the Variable Staff, at the site where ALLTEL's Variable Staff FTEs are located.
The work-flow manager will have a systems and technical background and will
serve as the point of contact for the ALLTEL Account Manager for the delivery of
Applications Support and Development products and services (as described in
Exhibit J). Client acknowledges that in order for ALLTEL to prioritize the
resources of the Variable Staff to address Client's request for such services,
Client must to the extent reasonably practicable provide ALLTEL with not less
than sixty (60) days advance notice of the need for resources by application and
business need. The work-flow manager shall interface with Client with respect to
all requests for information services or enhancements and will coordinate the
use of Variable Staff FTEs with the ALLTEL Account Manager to address requests
by Client.
(c) Regulatory Changes. During the Term, ALLTEL shall provide,
without charge to Client, regulatory changes to the ALLTEL Software equal to
$[*****] per calendar year based upon the then in effect hourly rate for
Application Support and Development resources.
9. Termination Matters.
(a) Section 19.5 (Termination for Convenience by Client) is hereby
replaced in its entirety with the following:
"19.5 TERMINATION FOR CONVENIENCE BY CLIENT. Provided that Client is
then current on all payments of the Access Line Charges
portion of the Service Fees due and owing to ALLTEL with no
portion of such Access Line Charges in dispute or in escrow
under Section 3.2(b) of the Agreement, Client may unilaterally
elect to terminate the Agreement effective at any time on or
after the Seventh Amendment Effective Date upon satisfaction
of all of the following conditions:
(a) Client shall notify ALLTEL in writing ("Early
Termination Notice") of its intention to terminate
the Agreement at least six (6) months prior to the
proposed early termination date, which shall be the
Termination Election Date, and Client and ALLTEL
shall then begin performing their respective
transition obligations under Sections 19.6 and 19.7.
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(b) Client shall pay to ALLTEL, in accordance with the
payment schedule in Section 19.5(c), the (i) unpaid
portion of the Service Fees constituting Access Line
Charges, whether in dispute or escrow or not, then
due and owing to ALLTEL under this Agreement, (ii)
remaining balance of any Capitalized Conversion Fees
pursuant to Section 1.1 of Exhibit E, (iii) unpaid
and undisputed portion of the remaining Service Fees
(not constituting Access Line Charges) then due and
owing to ALLTEL under this Agreement,; and, (iv) an
early termination fee as set forth below:
------------------------------------------------------------------
Early Termination Fee Termination Completion Date
------------------------------------------------------------------
$7,500,000 4/1/03-12/31/03
------------------------------------------------------------------
$5,600,000 1/1/04- 12/31/04
------------------------------------------------------------------
$3,800,000 1/1/05 - 12/31/05
------------------------------------------------------------------
$2,000,000 less reduction amount* 1/1/06 - 12/31/06
------------------------------------------------------------------
* Reduction amount means the product of (x) $166,667 and (y) the number of
months from 1/1/06.
(c) Client shall pay to ALLTEL all of the amounts
calculated under subsections 19.5(b)(i) through (iv)
within thirty (30) Days before the Termination
Completion Date. The Parties agree to use
commercially reasonable efforts to resolve all
disputes prior to the date that is thirty (30) Days
before the Termination Completion Date. If, however,
there exists any dispute involving the non-Access
Line Charges portion of the Service Fees that has not
been resolved prior to the thirtieth (30th) Day
before the Termination Completion Date, or if a new
dispute occurs after the date that is thirty Days
before the Termination Completion Date, then both
Parties agree to work together to expeditiously
resolve all such disputes in accordance with Section
3.2 of the Agreement in as soon of a time frame as is
reasonably practicable. It is the intent of the
parties that there shall exist no disputes or escrow
arrangements between the Parties as of the
Termination Completion Date.
(d) Notwithstanding delivery of an Early Termination
Notice or payment of fees due in accordance with this
Section 19.5, Client shall make all payments due and
payable to ALLTEL pursuant to this Agreement until
the Termination Completion Date."
(b) Section 19.9 (Termination for Change in Control) is hereby
replaced in its entirety with the following:
"19.9 TERMINATION FOR CHANGE IN CONTROL. Provided that Client is
then current on all payments of the Access Line Charges
portion of the Service Fees due and owing to ALLTEL with no
portion of such Access Line Charges in dispute or in escrow
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under Section 3.2(b) of the Agreement, Client may elect to
terminate the Agreement at any time on or after the Seventh
Amendment Effective Date and during the twelve (12) months
following a Change in Control (as defined in Section 22.2) of
ALLTEL (provided that for the purposes of this Section 19.9 an
entity shall be deemed a non-Affiliate of ALLTEL only if it is
not an ALLTEL Affiliate on the Seventh Amendment Effective
Date) if the entity which acquires Control of ALLTEL is
actively engaged, prior to the entity's acquisition of ALLTEL,
in providing wireline telephone services and the majority of
such entity's access lines consist of rural access telephone
lines. For purposes of this provision, a "rural access
telephone line" is an access line that is included within an
exchange which is made up of 50,000 access lines or less. In
the event of an ALLTEL Change of Control which meets the
requirements of the preceding sentence, Client must:
(a) timely notify ALLTEL in writing ("COC Termination
Notice") of its intention to terminate the Agreement
at least six (6) months prior to the intended
termination date, which shall be the Termination
Election Date, and in which case both Client and
ALLTEL will begin performing their respective
transition obligations under Sections 19.6 and 19.7;
(b) pay to ALLTEL, in accordance with the payment
schedule in Section 19.9(c), the (i) unpaid portion
of the Service Fees constituting Access Line Charges,
whether in dispute or escrow or not, then due and
owing to ALLTEL under this Agreement, (ii) remaining
balance of any Capitalized Conversion Fees pursuant
to Section 1.1 of Exhibit E, (iii) unpaid and
undisputed portion of the remaining Service Fees (not
constituting Access Line Charges) then due and owing
to ALLTEL under this Agreement,; and, (iv) a
termination fee equal to one-half (1/2) of the early
termination fee under Section 19.5(b)(iv) of the
Agreement which Client would otherwise have paid had
the termination occurred under Section 19.5
(Termination for Convenience); and
(c) Client shall pay to ALLTEL all of the amounts
calculated under subsections 19.9(b)(i) through (iv)
within thirty (30) Days before the Termination
Completion Date. The Parties agree to use
commercially reasonable efforts to resolve all
disputes prior to the date that is thirty (30) Days
before the Termination Completion Date. If, however,
there exists any dispute involving the non-Access
Line Charges portion of the Service Fees that has not
been resolved prior to the thirtieth (30th) Day
before the Termination Completion Date, or if a new
dispute occurs after the date that is thirty Days
before the Termination Completion Date, then both
Parties agree to work together to expeditiously
resolve all such disputes in accordance with Section
3.2 of the Agreement in as soon of a time frame as is
reasonably practicable. It is the intent of the
parties that there shall
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exist no disputes or escrow arrangements between the
Parties as of the Termination Completion Date.
Notwithstanding delivery of a Termination Notice or payment of fees due
in accordance with this Section 19.9, Client shall make all undisputed
payments due and payable to ALLTEL pursuant to this Agreement until the
Termination Completion Date. Disputed amounts shall be treated in
accord with Section 3.2(b)."
(c) In Section 1.2 (Definition Cross-Reference Index), the
reference to 19.5 for "Termination Completion Date" is changed to Section 19.6.
(d) The reference to Section 19.5(d) in Section 7.1 (Hardware and
Technical Systems) is changed to Section 19.7(d).
(e) The reference to Section 19.5 in Sections 19.1 (Termination)
and 19.2(a) (Termination Upon ALLTEL's Material Breach) is changed to Section
19.6.
10. Dispute Resolution Matters.
(a) The following sentence shall be added after Section 14.2
(Claims Procedures) of the Agreement:
"If the amount of the dispute is $1,000,000 or more, then either Party
shall have the right to skip providing notices to the ALLTEL Account
Manger or Client Project Manager as described in Section 14.2 above,
and, instead, provide such notices to the President, Telecom Division
of ALLTEL and Chief Executive Officer of Client and proceed to conduct
the dispute under Section 14.3(b)."
(b) Section 14.3(b) of the Agreement is replaced in its entirety
with the following:
"(b) If the negotiations conducted pursuant to Section
14.2 do not lead to resolution of the underlying
dispute or claim to the satisfaction of a Party
involved in such negotiations (or if such
negotiations are bypassed as provided for in the last
sentence of Section 14.2), then either Party may
notify the other in writing that she/he desires to
elevate the dispute or claim to the President,
Telecom Division (or his/her designee) of ALLTEL and
Chief Executive Officer of Client (or her/his
designee) for resolution. Upon receipt by the other
Party of such written notice, the dispute or claim
shall be so elevated and the President, Telecom
Division, of ALLTEL (or his/her designee) and the
Chief Executive Officer of Client (or her/his
designee) shall negotiate in good faith and each use
reasonable best efforts to resolve such dispute or
claim. The location, format, duration and conclusion
of these elevated discussions shall be left to the
discretion of the representatives involved. If the
discussions described in this Section 14.3(b) do not
result in resolution of the dispute within forty-five
(45)
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Days of commencement of the Escalation Procedures
described in this Section 14.3 (or such other time
period as is mutually agreed to by the Parties in
writing), the dispute shall be resolved as provided
in Section 14.4. Upon agreement, the representatives
may utilize other alternative dispute resolution
procedures to assist in the negotiations. Discussions
and correspondence among the representatives for
purposes of these negotiations shall be treated as
confidential information developed for purposes of
settlement, exempt from discovery and production,
which shall not be admissible in subsequent
proceedings between the Parties. Documents identified
in or provided with such communications, which are
not prepared for purposes of the negotiations, are
not so exempted and may, if otherwise admissible, be
admitted in evidence in such subsequent proceeding."
(c) Section 14.3(c) is deleted in its entirety.
(d) The reference in Section 14.4 (Arbitration) to 14.3(c) is
amended to read 14.3(b).
11. Mutual Release. Except for the obligations of the Parties hereunder,
ALLTEL and Client hereby fully and forever relieve, release, discharge and
covenant not to xxx the other Party and its present and former subsidiaries and
affiliated entities and their respective present and former officers, directors,
employees, agents, representatives, attorneys, predecessors, successors,
assigns, and each of them, of and from any and all claims, demands, actions,
causes of actions, or damages (including, but not limited to consequential,
special or punitive damages, loss of profits, loss of benefits, loss of
goodwill, termination rights, costs and attorneys fees) (i) of whatever kind or
nature which either Party has asserted against the other Party, or advised the
other Party in writing, including, without limitation, in email correspondence
and messages (including, without limitation, those matters set forth in the
letter from Client to ALLTEL dated September 20, 2001, those matter set forth in
any version of the "Analysis and Root Cause of CCS, CAMS, and Other System
Workarounds" prepared by Client, matters relating to directory assistance or
operator services disputes with Verizon, e-rate matters, matters relating to
Client long-distance "screen scrapes" or deficiencies of the ALLTEL Systems)
based on, arising out of, or in connection with the performance or
non-performance of a Party's rights, duties, obligations or other matters under
the Agreement through and including the date of execution hereof, (ii) of
whatever nature or kind based on, arising out of, or in connection with ALLTEL's
failure to achieve the Below Target or Minimum performance designation for any
Service Level Measurement under Exhibit F of the Agreement for the period ending
on and prior to the Seventh Amendment Effective Date, or (iii) in the case of
Client, extending beyond such date in favor of ALLTEL to include any matter to
the extent that it is caused by or results from the lack of integrity of data
converted in the calendar year 2000 from systems operated by GTE.
Notwithstanding the preceding sentence, this Section 11 shall not relieve Client
of its obligation to pay outstanding amounts for services rendered or invoices
delivered to Client under the Agreement except as specifically waived or
credited by ALLTEL in writing. Except as expressly provided above, nothing in
this Mutual Release shall operate or be construed to bar either Party from
asserting claims, demands, actions, or causes of actions for damages suffered or
incurred
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subsequent to the date of execution of this Amendment which arise from matters
that have not been asserted as of the date of execution of this Amendment, or as
to which notice has not been provided in writing, including, without limitation,
in email correspondence and messages, as of that date. Client has not
identified, investigated or analyzed any potential claims, demands, actions, or
causes of actions against ALLTEL which were based on, arose out of, or were in
connection with any matter that occurred on or prior to the Seventh Amendment
Effective Date, and which Client had not asserted as of the Seventh Amendment
Effective Date, or as to which Client had not provided notice in writing,
including, without limitation, in email correspondence and messages, to ALLTEL
as of that date. Further, nothing in this Mutual Release shall operate or be
construed to bar either Party from asserting claims, demands, actions, or causes
of actions for damages to the extent they relate to Access Lines acquired by
Client subsequent to the date of this Amendment.
12. Miscellaneous.
(a) SAS 70 Audit Program. Client agrees that ALLTEL has not
implemented or funded a SAS 70 or similar audit program. In the event Client
desires that ALLTEL implement a SAS 70 or similar audit program, ALLTEL shall
implement such audit program and Client shall reimburse ALLTEL for all cost
incurred by ALLTEL in the implementation and on-going maintenance of such
program during the Term.
(b) Defined Terms. All capitalized terms not otherwise defined in
this Seventh Amendment shall have the same meaning set forth in the Agreement.
(c) Continuing Effect. Except as herein expressly amended, the
Agreement as previously amended is ratified, confirmed and remains in full force
and effect.
(d) Future References. All references to the Agreement shall mean
as such Agreement is amended hereby and as each may in the future be amended,
restated, supplemented or modified from time to time.
(e) Counterparts. This Seventh Amendment may be executed by the
Parties hereto individually or in combination, in one or more counterparts, each
of which will be an original and all of which will constitute one and the same
agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Seventh
Amendment as of the Seventh Amendment Effective Date by their duly authorized
representatives.
ALLTEL INFORMATION SERVICES, INC. VALOR TELECOMMUNICATIONS
ENTERPRISES, LLC
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------------ --------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxx
Title: President, Telecom Division Title: Chief Executive Officer
SIGNATURE PAGE TO
SEVENTH AMENDMENT TO
MASTER SERVICES AGREEMENT
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Schedule A
PFB Responsibilities
The following is added as Section 12 to Attachment 1 of Exhibit A:
12. PERFORMANCE FEEDBACK SYSTEM
12.1 SYSTEM FUNCTIONALITY
12.1.1 INCLUDED
A. Contains an Oracle data repository, in a client/server
architecture, with a modular design and construction, and
modifiable goals and measurements.
B. Provides accessibility, comparative data, and objective-based
information.
C. The current report set contains 91 individual reports
broken-out as follows:
1. 19 individual reports available in a daily detail
version plus, summarized versions at the weekly and
monthly levels.
2. Many include a graphical representation as well as a
task detail representation.
3. The remaining individual reports are specific for
summarized information relating to task type (service
orders, trouble tickets, etc.)
D. Data retention schedule for the Oracle data repository:
E. Detail data (task and activity level) purges after 61 days
F. Daily summarized data (by employee) purges after 61 days
G. Weekly summarized data (by employee) purges after 12 weeks
H. Monthly summarized data (by employee) purges after 13 months
I. Yearly summarized data (by employee) is currently not purged
J. Daily verification of data extracted from the source system to
the PFB repository
K. Daily verification of delivery of reports to the various
platforms
L. Oracle license fee with annual maintenance for 3 simultaneous
users
12.1.2 EXCLUDED
A. PFB does not provide annual reports
B. Business Objects Software C. Manpower scheduling
D. Attendance records
E. Interfaces with the payroll system
F. Financial information
G. Non-performance based reports
H. Customization of reports specific to Valor (available through
SER process)
12.2 CLIENT RESPONSIBILITIES
A. Error correction in source data
B. On-line report viewing
C. Workstation hardware and configuration
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D. Workstation software installation
E. Delivery of HTML reports to the end user
F. End user training
G. AdHoc reporting
H. Employee Survey source data
J. ACD source data
K. Provide dedicated Client representative to work with ALLTEL on
PFB implementation and on-going PFB usage
L. Provide remote access connectivity
M. Provide minimum hardware and software requirements as
specified by ALLTEL
12.3 ALLTEL RESPONSIBILITIES
A. Modeling
B. Data extract & transformation from source data
C. Business Objects Universe maintenance
D. Data warehouse update
E. Business Objects reports
F. WFM source data
G. CCS source data
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Schedule B
Amendment SERs
The following are high-level requirements provided by Client prior to
development for the Amendment SERs. The Parties acknowledge that detailed
requirements for each of the Amendment SERs must be determined and mutually
agreed to by the Parties prior to the commencement of development.
1. CABS must be able to process term and quantity discounts for circuits
at the carrier level. This functionality would also handle pricing
plans contained in interconnection agreements. This capability must be
flexible enough to accommodate percentage changes on a regular basis.
2. CABS must be able to calculate and xxxx sales tax at all legally
required levels (State, County, City, Special) for retail (End-User)
circuits. CABS can presently process only one tax rate level.
3. Valor requires a Cycle Review Report showing tentative xxxx amounts for
Local (recurring and non-recurring), Toll, Payments, Adjustments, and
identifying accounts transferred between cycles. This report would be
run one day in advance of each cycle finalization (on "review day") so
that problems
4. Valor must have the system capability to elect rejection of CMDS toll
for CLEC customers. Presently, Valor has to manually adjust for
third-party collect and operator handled toll coming in through CMDS.
5. CAMS must provide audit trail reporting of any changes (Adjustments,
Balance Transfer, etc.) made on CAMS customer accounts. Currently, CAMS
allows an optional remark entry to TRMK (Customer Remark Screen)
screen. This should not be an optional entry.
6. CAMS must be able to calculate interest on deposits using multiple
interest rates on the same deposit. Currently, CAMS is capable of using
only one interest rate for the full period of the held deposit.
Oklahoma requires deposits held up to a year be paid 2.2% interest.
However, after the first year, the interest rate rises to 6.5%.
7. All previous customer invoices should be viewable online in "RVS"
(Report Viewing) without waiting for tape cartridges to be mounted.
8. ALLTEL must provide online edit/validation of CCS Premise addresses
against MIROR Premise addresses to ensure immediate knowledge of
problems with orders that are
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expected to "flow-through." Valor requires the capability (report or
tool) to identify Premise address conditions that are not synchronized
by respective wire-center.
9. Service orders should not be closed (placed in "Completed Status")
until a three-way data validation match is performed between CCS,
MIROR, and CAMS. Until then, orders for which any part of this
three-way reconciliation remains pending should be held in suspension
until each application is validated. While in Pending or Hold-Queue
status, users should have the ability to know what is pending and why.
10. Valor must have the ability and authority to modify or delete Premise
information internally. Specifically, Valor requires the ability to
change wire-center, Premise ID, and to delete a "Former" in CCS. Valor
also requires the ability to delete invalid Street Names, House and
other Premise elements if there is no active Premise record impacted.
11. Inter-System Balancing Controls and Reports must exist between at least
CCS and CAMS. Example: A daily report should reflect completed orders:
New Installs In CCS by TN New Installs. In CAMS by TN
Disconnects in CCS by TN Disconnects In CAMS by TN
From orders in CCS by TN From orders in CAMS by TN
To orders in CCS by TN To orders in CAMS by TN
Records orders in CCS by TN Records orders in CAMS by TN
The above should be the column heading and if a TN was completed in CCS
but not in CAMS, the TN would be listed under the CCS column but not
the CAMS column, or vice versa. The same should be done for totals by
ASOC.
12. Valor requires daily Inter-System Balancing Reports with listings of
control/reconciliation discrepancies between CCS, CAMS, and E911
applications. The reports should be generated weekly until all existing
data problems are repaired and daily thereafter. Reports should list
data discrepancies so that corrections can be made immediately. These
should include: CCS to MIROR (Customer Name and Address "CNAs"), TNs,
and Products for Active Accounts, and Customer Addresses for
"Formers"), CCS to CAMS ( CNAs, TNs, and Products), CAMS to E911 (CNA
and TNs)
13. The ALLTEL CCS application must provide a mechanism to change incorrect
addresses on all customers.
14. The ALLTEL TARP application must provide a mechanism to change an
incorrect address when a customer calls in a trouble ticket, and have
it flow through to WFM. Presently, when a customer calls in for a
trouble ticket and the service address is incorrect, there is no method
of changing the address so a technician can find the customer.
15. ALLTEL applications must allow mass MPS changes / updates by Telephone
Number.
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16. ALLTEL applications must accept and process all industry standard
record types.
17. All incoming usage records must be recorded and reconciled in report
form. This inbound usage should be recorded on a report with at least
the data set name, number of records and other details immediately upon
receipt. Further reports should track usage from initial capture to
billing.
18. VBS CAMS invoicing must present billing activity by Account Code, then
Telephone Number (TN). Multi-Account business customers (VBS target
customers) must be able to view billing activity by Sub-Account
groupings, not just TN.
19. CAMS must allow "Regrade" orders without issuance of "Final" billing.
This is confusing for customers who are just changing service. An
example of such a Regrade Order would be changing an Access Line ASOC
to another plan/type ASOC.
WFM must allow a technician to select and reserve multiple jobs
without logging out and back in again.
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