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EXHIBIT 10.20
WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND(TM)SWITCHED SERVICES
PROGRAM ENROLLMENT TERMS
These PROGRAM ENROLLMENT TERMS (the "PET") are made by and between
WorldCom Network Services, Inc. ("WORLDCOM") and AmeriVision Communications,
Inc. ("CUSTOMER") and are a part of their Telecommunications Services Agreement
for Switched Services. Capitalized terms not defined herein shall have the
meaning ascribed to them in the TSA, the Service Schedule or the applicable Rate
and Discount Schedule.
1. SERVICE TERM: The Service Term shall commence as of --**-- (the
"EFFECTIVE DATE") and shall continue through and include --**-- (the
"SERVICE TERM"), subject to earlier termination as provided in
Subsection 2(B) below. Provided, however, notwithstanding the
immediately preceding sentence, the rates set forth herein will be
effective as of --**-- (the "RATE EFFECTIVE DATE"). Upon expiration of
the Service Term, the Switched Services in question will continue to be
provided pursuant to the same terms and conditions as are then in
effect (including without limitation, the applicable rates, discounts
and commitments, if any), subject to termination by either party upon
sixty (60) days prior written notice to the other party.
2. CUSTOMER'S MINIMUM REVENUE COMMITMENT:
(A) Commencing with the Effective Date (as determined under Section 1
above) and continuing through the end of the Service Term (including
any extensions thereto) (the "COMMITMENT PERIOD"), Customer agrees to
maintain, on a take-or-pay basis, cumulative Monthly Revenue (as
defined in the applicable Rate and Discount Schedule) equal to at least
the amounts shown below by the end of the respective months listed
("CUSTOMER'S MINIMUM REVENUE COMMITMENT").
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--**-- This symbol signifies information from the agreement that has
been omitted because the Company has requested confidential treatment. The
information has been filed separately with the Securities and Exchange
Commission.
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(B) Notwithstanding anything to the contrary contained in Subsection
(A) above, as soon as Customer's cumulative Monthly Revenue (which will
include any Deficiency Charges actually paid by Customer) is equal to
at least --**--, either party may cancel this Agreement in its entirety
upon at least --**-- prior written notice to the other party.
3. DEFICIENCY CHARGE: In the event Customer does not maintain Customer's
Minimum Revenue Commitment in any month during the Commitment Period
(regardless of whether Customer has commenced using any or all of the
Switched Services described herein), then for those month(s) only,
Customer will pay WorldCom the difference between Customer's Minimum
Revenue Commitment and Customer's actual Monthly Revenue (as described
in the applicable Rate and Discount Schedule) (the "DEFICIENCY
CHARGE"). The Deficiency Charge will be due at the same time payment is
due for Service provided to Customer, or immediately in an amount equal
to Customer's Minimum Revenue Commitment for the unexpired portion of
the Service Term, if WorldCom terminates this Agreement based on
Customer's default. Provided, however, WorldCom agrees to waive any
Deficiency Charges that arise solely due to a catastrophic network
event which materially prevents Customer's use of Services hereunder
sufficient to satisfy Customer's Minimum Revenue Commitment. In such
case, Customer shall have the burden of proof in establishing the date
and duration of such event as well as the general sources of Customer's
traffic affected by such event. Provided, for purposes of this
Agreement, any catastrophic network events lasting less than --**--
and/or affecting less than --**-- minutes of Customer's traffic will be
deemed not material.
4. CANCELLATION WITHOUT CHARGE: The parties agree to substitute Subsection
2(C) of the TSA to read in its entirety as follows:
(C) Cancellation Without Charge. Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel this
Agreement without incurring any cancellation charge if:
i. WorldCom fails to provide a network as warranted in Section
8 below and fails to cure such default within five (5) days
following written notice from Customer; or
ii. WorldCom fails to (a) deliver call detail records promptly
based on the frequency selected by Customer (i.e., monthly,
weekly or daily); or (b) submit ANI(s) relevant to such
Service Requests to the LECs within the time period described
in Subsection 1(B) above. Provided, however, Customer must
give WorldCom written notice of any such default under this
Subpart (ii) and an opportunity to cure such default within
five (5) days of the notice. In the event WorldCom fails to
cure any such default within the five-day period set forth in
this Subpart (ii) on more than three (3) occasions within any
six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
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5. DISPUTED TRANSFER CHARGES: The parties agree to substitute the first
sentence only of Subsection 3(A) and Subsection 3(B) of the TSA to read
in their entirety as follows:
(A) End Users. Customer will use reasonable efforts to obtain and upon
WorldCom's request will provide WorldCom (within two (2) business days
of the date of the request) a written Letter of Agency ("LOA")
acceptable to WorldCom [or with any other means if approved by the
Federal Communications Commission ("FCC") and any applicable public
utility commission ("PUC") and accepted by the applicable local
exchange provider provided the local exchange provider has the
authority to accept or deny certain forms of LOAs (provided, further,
nothing contained herein will require WorldCom to challenge the right
of local exchange providers to accept or deny certain forms of LOAs),
for each ANI indicating the consent of such end user of Customer ("END
USER") to be served by Customer and transferred (by way of such End
User's designated PIC) to the WorldCom network prior to order
processing.
(B) Transfer Charges/Disputed Transfers. Customer agrees that it is
responsible for (i) all charges incurred by WorldCom to change the PIC
of End Users to the WorldCom network, (ii) all charges incurred by
WorldCom to change End Users back to their previous PIC arising from
disputed transfers to the WorldCom network plus, at WorldCom's option,
an administrative charge equal to --**-- of such charges, and (iii) any
other damages suffered by or awards against WorldCom resulting from
disputed transfers unless such damages or awards are the result of
actions taken solely by WorldCom without any involvement (either
directly or indirectly) by Customer.
6. PAYMENT TERMS: The parties agree to substitute Subsection 5(A) and 5(B)
of the TSA to read in their entirety as follows:
(A) Payment. WorldCom xxxxxxxx for Switched Services hereunder are made
on a monthly basis (or such other basis as may be mutually agreed to by
the parties) following Start of Service. Subject to Subsection 5(C)
below, Switched Services shall be billed at the rates set forth in the
applicable Rate and Discount Schedule attached hereto. Customer will be
notified of WorldCom's time of day rate periods (including WorldCom
Recognized National Holidays). Discounts, if any, applicable to the
rates for certain Services are set forth in the Rate and Discount
Schedule. Customer will pay all undisputed charges relative to each
WorldCom invoice for Switched Services within (i) --**-- days of the
invoice date set forth on each WorldCom invoice to Customer with
respect to Services provided in months 1 through 3 following the
Effective Date of this Agreement, (ii) --**-- days of the invoice date
set forth on each WorldCom invoice to Customer with respect to Services
provided in months 4 through 6 following the Effective Date of this
Agreement, and (iii) --**-- days of the invoice date set forth on each
WorldCom invoice to Customer with respect to Services provided through
the remainder of the Service Term (collectively, the "DUE DATE"). If
payment is not received by WorldCom on or before the Due Date, Customer
shall also pay a late fee in the amount of the lesser of one and
one-half percent (1 1/2%) of the unpaid
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balance of the charges for Switched Services rendered per month or the
maximum lawful rate under applicable state law. Commencing with the
Effective Date and continuing through the end of the Service Term,
Customer agrees to provide WorldCom (a) unaudited financial statements
within --**-- days following each month, (b) "reviewed" financial
statements within --**-- days following each quarter, and (c) audited
financial statements within --**-- days following the end of each of
Customer's fiscal years.
(B) Taxes. Customer acknowledges and understands that WorldCom computes
all charges herein exclusive of any applicable federal, state or local
use, excise, gross receipts, sales and privilege taxes, duties, fees or
similar liabilities (other than general income or property taxes),
whether charged to or against WorldCom or customer because of the
Switched Services furnished to Customer ("ADDITIONAL CHARGES").
Customer shall pay such Additional Charges in addition to all other
charges provided for herein. Customer will not be liable for certain
Additional Charges if Customer provides WorldCom with an appropriate
exemption certificate. Provided, to the extent Customer is not an "end
user" of the Services provided hereunder, with respect to any
Additional Charges which are assessed solely on WorldCom's end users
("END USER CHARGES"), WorldCom agrees not to assess Customer such End
User Charges. Provided, however, in the event WorldCom is required to
collect End User Charges from Customer, Customer agrees to pay WorldCom
such End User Charges unless Customer provides WorldCom a written
certification, signed by an officer of Customer, that Customer has
directly paid such End User Charges.
7. PAYMENT OF DISPUTED AMOUNTS: Notwithstanding anything to the contrary
contained in Subsection 5(D) of the TSA, in the event Customer pays
WorldCom any amount which is ultimately determined not to be due
WorldCom, WorldCom agrees to pay Customer such amount plus interest on
such amount equal to one and one-half (1 1/2%) of such amount per month
or the maximum lawful rate under applicable state law.
8. CREDIT: The parties agree to delete the first two sentences of
Subsection 6(A) of the TSA.
9. REMEDIES FOR BREACH: In the event WorldCom elects its remedies under
Subsection 7(B) of the Agreement and bills Customer's End Users
directly, WorldCom agrees to collect any amounts owing from such End
Users in good faith and in accordance with reasonable business
practices. In the event WorldCom collects any amounts from Customer's
End Users, such amounts will offset any amounts owed by Customer under
this Agreement. In other words, Customer's liability for charges for
Services rendered and the Deficiency Charge, if applicable, will be
reduced by any amounts WorldCom collects from Customer's End Users.
10. FORCE MAJEURE: The parties agree to substitute Section 10 of the TSA to
read in its entirety as follows:
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If either party's performance of this Agreement or any obligation
hereunder (excluding payments owed by Customer for Services rendered by
WorldCom) is prevented, restricted or interfered with by causes beyond
its reasonable control including, but not limited to, acts of God,
fire, explosion, vandalism, cable cut, storm or other similar
occurrence, any law, order, regulation, direction, action or request of
the United States government, or state or local governments, or of any
department, agency, commission, court bureau, corporation or other
instrumentality of any one or more such governments, or of any civil or
military authority, or by national emergency, insurrection, riot, war,
strike, lockout or work stoppage or other labor difficulties, or
supplier failure, shortage, breach or delay, then the affected party
shall be excused from such performance on a day-to-day basis to the
extent of such restriction or interference. The affected party shall
use reasonable efforts under the circumstances to avoid or remove such
causes or nonperformance and shall proceed to perform with reasonable
dispatch whenever such causes are removed or cease.
11. OTHER AGREEMENTS: The parties agree to substitute Subsection 24(B) of
the TSA to read in its entirety as follows:
(B) Third Party Agreements. If Customer acquires or merges or combines
with a third party after the Effective Date of this Agreement, and such
third party has existing agreement(s) with a member of the WorldCom
Group (collectively referred to as the "THIRD PARTY AGREEMENTS") for
the provision of switched telecommunications services ("THIRD PARTY
EXISTING SERVICES"), then ninety (90) days following the date of such
acquisition, merger or combination (or such earlier date contained in a
written notice from customer to WorldCom) (the "TRANSFER DATE"), if
requested by WorldCom, Customer agrees to select one Agreement (either
this Agreement or a Third Party Agreement) (the "SURVIVING AGREEMENT")
pursuant to which all switched services will be provided to Customer
and all members of the Customer Group and all other agreements (the
"CANCELED AGREEMENTS") will be canceled and no longer in force or
effect except for commitments, if any, contained in the Canceled
Agreements and charges and credits due for Services provided prior to
the effective date of cancellation of such Canceled Agreements.
Further, as of the effective date of cancellation, Third Party Existing
Services or, if applicable, the Services provided under this Agreement
will be provisioned under the Surviving Agreement, and the aggregate
commitment(s) (e.g., revenue, volume, minute, etc.) remaining under the
Canceled Agreements shall be added on a pro rata basis to the
commitment(s), if any, existing under the Surviving Agreement.
Simultaneous with the closing of such acquisition, combination or
merger, Customer will cause such third party and all of its affiliates
who are parties to such Third Party Agreements, to agree to such
cancellation(s) as appropriate and the provision of such Services, as
appropriate under the terms and conditions of the Surviving Agreement
and Customer agrees to provide WorldCom with reasonable documentation
evidencing such agreement.
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12. TARIFF REFERENCES: Except to the extent specifically referenced in this
Agreement, this Agreement does not incorporate any terms or conditions
contained in any federal and/or state tariffs filed or to be filed by
WorldCom or any of its affiliates.
13. DISPUTE RESOLUTION: If the parties are unable to resolve any dispute
arising under or relating to this Agreement, the parties may resolve
such disagreement or dispute as follows:
(a) Either party may, by written notice to the other party (the
"DISPUTE NOTICE"), request that a designated representative from each
of the parties attempt to resolve the matter. Within fifteen (15) days
after delivery of the Dispute Notice such representatives of both
parties will use good faith efforts to schedule a meeting at a mutually
acceptable time and place to attempt to resolve the dispute.
(b) If the matter has not been resolved within thirty (30) days after
delivery of the Dispute Notice, or if such representatives fail to meet
within fifteen (15) days after delivery of such Dispute Notice, either
party may initiate mediation in accordance with the procedures set
forth in (C) below. All negotiations conducted by such representatives
shall be confidential and shall be treated as compromise and settlement
negotiations for purposes of federal and state rules of evidence.
(c) If such representatives are unable to resolve the dispute or have
failed to meet, the parties may elect to participate in a nonbinding
mediation procedure as follows:
(A) A mediator will be selected by having counsel for each
party agree on a single person to act as mediator. The
parties' counsel as well as up to three (3) representatives of
each of the parties will appear before the mediator at a time
and place determined by the mediator, but not more than sixty
(60) days after delivery of the Dispute Notice. The fees of
the mediator and other costs of the mediation will be shared
equally by the parties.
(B) Each party will present a review of the matter and its
position with respect to such matter. At the conclusion of
both presentations the parties may ask questions of each
other. Either party may abandon the mediation procedure at the
end of the presentation and question periods and the mediation
procedure shall not be binding on either party.
(C) If the matter is not resolved after applying the mediation
procedure set forth above, or if either party refuses to take
part in the mediation process, either party may initiate legal
proceedings to resolve their dispute.
(D) The provisions of this Section 13 shall not preclude a party form
instituting legal proceedings seeking injunctive relief (including,
without limitation, a temporary restraining
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order) prior to the commencement or completion of the specified dispute
resolution procedures.
14. REQUIREMENTS AGREEMENT: In consideration of the rates set forth in the
Rate Schedule, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, during the Service
Term Customer agrees to purchase --**-- of its telecommunications
services requirements for SWITCHED ACCESS Service (1+ and Toll Free)
(which services are described in this Agreement) from WorldCom under
the terms and conditions set forth in this Agreement ("CUSTOMER'S
REQUIREMENTS OBLIGATION"). Upon request from WorldCom, Customer agrees
to provide WorldCom reasonable documentation evidencing Customer's
compliance with this Section 14 and if requested by WorldCom, agrees to
allow WorldCom or its representatives to audit Customer's books and
records as may be necessary solely to ensure Customer's compliance with
Customer's Requirements Obligation. In the event Customer is in breach
of this Agreement, in addition to WorldCom's other rights and remedies
described in this Agreement, notwithstanding anything to the contrary
contained in the Agreement, WorldCom shall have the right to
immediately increase Customer's SWITCHED ACCESS Service rates set forth
in the Rate Schedule to --**--. Any increase as described herein will
not affect Customer's Minimum Revenue Commitment set forth in Section 2
above.
15. SEMI-ANNUAL REVIEW OF RATES: Provided Customer is in substantial
compliance with the terms of this Agreement, commencing September 1,
1999, and continuing on the first day of every seventh (7th) month
thereafter (i.e., March 1, 2000; September 1, 2000; March 1, 2001;
etc.), WorldCom and Customer agree to review the rates hereunder with a
view to adjusting in good faith such rates taking into account (i)
rates then generally available to WorldCom's other wholesale customers
under other "programs" being offered by WorldCom when taken as a whole,
and (ii) rates then generally available to WorldCom's other wholesale
customers for similar services, commitments and other terms. In
conducting such review, the parties agree to take into account state
and/or federal mandates regarding local access reform, if any, that may
affect the cost of the Services provided hereunder and which result in
either an increase or decrease to such rates. Provided, however,
nothing contained in this Section 15 will obligate WorldCom to reduce
Customer's rates under this Agreement.
16. CUSTOMER PROPRIETARY INFORMATION: In addition to WorldCom's obligations
to protect Customer's Confidential Information under Section 20 of the
TSA, WorldCom agrees to comply with all applicable laws, rules and
regulations regarding Customer's proprietary network information and
the proprietary network information of Customer's End Users which
information has been directly provided or disclosed by Customer to
WorldCom.
17. SUBORDINATION AGREEMENT: Simultaneous with the execution of this
Agreement, WorldCom agrees to execute the attached Intercreditor
Agreement by and between WorldCom, Customer and Coast Business Credit,
a division of Southern Pacific Bank.
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18. CREDIT/SETTLEMENT:
(A) In consideration of the terms and conditions contained in this
Agreement, Customer's payment to WorldCom of --**-- on or before the
due date of WorldCom's April 1, 1999 invoice, and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, upon execution of this Agreement, WorldCom agrees to give
Customer a credit (the "CREDIT") equal to --**-- which the parties
agree equals all invoiced and unpaid charges including interest and
late fees owed by Customer for Services provided by WorldCom prior to
January 1, 1999 (i.e., up through and including the January, 1999
invoice) (the "SETTLEMENT DATE") (including any Services provided to
Hebron Communication Corporation or American Electronics Corporation
d/b/a Discount Long Distance assertedly through Customer by WorldCom
through the Settlement Date. For purposes of this Agreement, such
Services shall include without limitation (i) the following WorldCom
billing account numbers for Switched Services: --**--; and the
following WorldCom billing account numbers for private line services:
--**--, and any other accounts for which Customer had payment
responsibility under that certain Payment Agreement dated June 1, 1996,
and executed by Customer, WorldCom and National Telephone &
Communications, Inc., including without limitation, billing account
numbers --**--. In addition to the Credit described herein, WorldCom
agrees to waive any finance charges up through and including March 31,
1999 (i.e., the April, 1999 invoice). WorldCom acknowledges that the
rates charged to Customer from and after November 30, 1998, through the
Rate Effective Date described in Section 1 above shall be consistent
with the rates provided under the WilMAX Telecommunications Services
Agreement dated June 1, 1996 (the "NTC AGREEMENT"), as referenced in
that certain Payment Agreement by and between WorldCom, Customer and
National Telephone & Communications, Inc. dated June 1, 1996.
(B) In consideration hereof, Customer and WorldCom, together with and
on behalf of their respective predecessors, successors, parents,
subsidiaries, affiliates, assigns, agents, directors, officers,
employees and shareholders hereby release the other party and its
respective predecessors, successors, parents, subsidiaries, affiliates,
assigns, agents, directors, officers, employees and shareholders, from
any and all claims, demands, damages, causes of action, debts,
obligations, liabilities or controversies of any kind whatsoever,
whether at law or in equity, whether before a local, state or federal
court, arbitrator or state or federal administrative agency or
commission, and whether known or unknown, liquidated or unliquidated,
that the releasing party has or may have against the other on account
of or in any way related to the NTC Agreement, any Services provided or
billed to Customer prior to the Settlement Date, or any statements
and/or representations made by the other party's personnel regarding
the Services provided to Customer (the "DISPUTED MATTERS"). Upon
receipt of the Credit, (i) it shall be the full and final settlement of
each party's disputes and claims pertaining to the Disputed Matters,
and (ii) each party shall thereafter be barred from bringing any
charge, complaint or other action against the other relating to the
Disputed Matters for all periods prior to the Settlement Date. It is
understood and agreed by the parties that this Amendment is not to be
construed or used as an admission of any liability
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whatsoever by either party, its officers, directors, employees, agents,
representatives, affiliates or subsidiaries, which liability is
expressly denied, nor is it to be construed or used as an admission
that a party has committed or engaged in any deceptive or unlawful act,
violation or other breach of duty imposed by the NTC Agreement,
applicable tariffs or applicable law.
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IN WITNESS WHEREOF, the parties have executed these
Classic/TRANSCEND(TM) Switched Services Program Enrollment Terms.
WORLDCOM NETWORK SERVICES, INC. AMERIVISION COMMUNICATIONS,
INC.
By: /s/ Xxxx X. Krummez By: /s/ Xxxxxxx X. Xxxxxxxx
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(Signature) (Signature)
Xxxx X. Krummez Xxxxxxx X. Xxxxxxxx
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(Print Name) (Print Name)
Senior Vice President President
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(Title) (Title)
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WORLDCOM NETWORK SERVICES, INC.
SWITCHED SERVICES
RATE SCHEDULES FOR AMERIVISION
Capitalized terms not defined in this Rate Schedule shall have the
meaning ascribed to them in the Telecommunications Services Agreement,
TSA#AVI-990301, between AmeriVision Communications, Inc. and WorldCom Network
Services, Inc.
RATES
(A) TERMINATION Service
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(B) TOLL FREE ORIGINATION Service
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(C) SWITCHED ACCESS Service
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(D) DEDICATED ACCESS Service
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(E) TRAVEL CARD Service
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(F) Directory Assistance
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ATTACHMENTS:
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--**-- This symbol signifies information from the agreement that has
been omitted because the Company has requested confidential treatment. The
information has been filed separately with the Securities and Exchange
Commission.
