EXHIBIT 10.73
-------------
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[_____]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
AMENDMENT NO. 3
This Amendment No. 3 (the "AMENDMENT") is made and entered into as of the
1st day of May, 1997 (the "EFFECTIVE DATE") to that Certain Carrier Digital
Services Agreement dated as of September 1, 1995 (the "DSA") as modified by that
Certain Amendment dated as of April 1, 1996 ("PRIOR AMENDMENT") and that certain
Amendment No. 2 dated as of June 1, 1996 ("AMENDMENT NO. 2") made by and between
WorldCom Network Services, Inc. d/b/a WilTel ("WILTEL") and (i) Associated
Communications Companies of America ("ACCA"), and (ii) the individual members of
ACCA listed on Appendix A hereto (individually referred to as a "MEMBER"). All
capitalized terms used in this Amendment not otherwise defined shall have the
meaning given to them in the DSA, the Prior Amendment or Amendment No. 2,
whichever is applicable. In the event of any conflict between the terms of the
DSA, the Prior Amendment, Amendment No. 2 and the terms of this Amendment, the
order of precedence will be as follows: (1) this Amendment, (2) Amendment No. 2,
(3) the Prior Amendment, and (4) the DSA.
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agrees as follows:
A. Term. The parties agree to substitute Section 4 of the DSA Agreement
----
to read in its entirety as follows:
4. TERM: WilTel's obligation to provide Service under this Agreement shall
be effective over the period commencing as of May 1, 1997 and continuing
through and including August 31, 1999 (the "TERM"). With respect to any
Service Order for which the applicable Service Commitment Period has not
been satisfied by the end of the Term, the terms and conditions of this
Agreement will remain in full force and effect until such Service
Commitment Period has been satisfied. Upon the expiration of the Term, all
charges relevant to the Service will remain in effect and Service which has
met its minimum Service Commitment Period as described herein will be
subject to termination by either party upon not less than thirty (30) days
prior written notice to the other party.
B. Rates: The parties agree to substitute Section 9 of the DSA to read in
-----
its entirety as follows:
9. CUSTOMER'S COMMITMENT/DEFICIENCY CHARGE:
(A) Commencing with the September, 1997 billing period (i.e., October,
1997 invoice) and continuing through the
Page 1 of 10 CONFIDENTIAL
------------
end of the Term (the "Commitment Period"), Customer agrees to
maintain, on a take-or-pay basis, Monthly Recurring Interexchange
Service Charges of at least [______] ("Customer's Commitment"). It is
further understood by the parties that certain Members have
individually committed for a certain portion of Customer's Commitment
(hereinafter referred to as a "Member's Portion") as further described
in Section 17 below. Provided, however, nothing contained herein shall
be construed as to make ACCA or any Member directly liable to XxxXxx
for the Monthly Recurring Interexchange Service Charges of any other
Member.
(B) If, in any month during the Commitment Period, the aggregate of
all of the Members' actual Monthly Recurring Interexchange Service
Charges does not equal at least the Customer's Commitment, then WilTel
will determine which Member (or Members) (a "DELINQUENT MEMBER") has
not satisfied its respective Member's Portion as shown in the Amended
and Restated Commitment Schedule described in Subsection 17(B). In
such case and only for such month(s), the Delinquent Members agrees to
pay WilTel the difference between its actual Monthly Recurring
Interexchange Service Charges and its respective Member's Portion, if
any (the "MONTHLY DEFICIENCY CHARGE"). Monthly Deficiency Charges, if
any, determined in accordance with this Subjection (B) shall be due at
the same time service charges are due hereunder.
(C) The parties hereby specifically agree that the provisions
contained herein describing a deficiency charge represents a mutual
good faith estimate of, and bears a reasonable relationship to, the
actual damages to WilTel in the event of such deficiency and do not
represent a penalty of any kind, and that such deficiency charge is an
obligation of ACCA and the Members subject to specific performance.
(D) For purposes of this Agreement, "Monthly Recurring Interexchange
Service Charges" will not include pro-rated charges for Interexchange
Service, Local Access charges, Ancillary Service charges, Additional
Charges (as defined below), other recurring or non-recurring charges
for space, facilities or any other charges other than those charges
identified by the relevant WilTel invoice as monthly recurring
interexchange service charges for private line service.
Page 2 0f 10 CONFIDENTIAL
------------
(E) In the event Customer submits a firm Service Order for DS-l
or DS-3 level On-Net Service (other than orders submitted under
Sections 11 or 12 below) and WilTel can not deliver Service
within thirty (30) business days or some other longer interval
agreed to by Customer, and Customer orders and is provided such
Service by another carrier, then solely for purposes of
determining if Customer has met Customer's Commitment described
in Subsection (A) above, WilTel agrees to include an amount equal
to WilTel's Monthly Recurring Interexchange Service Charges for
such Service times the number of months such Service is actually
installed by the other carrier. Upon request by WilTel, Customer
agrees to provide adequate documentation reasonably acceptable to
WilTel to substantiate Customer's ordering and being provided
Service under this Subsection from another carrier.
C. Commitment Schedule.
-------------------
A. RATES. The parties agree to substitute Section 10 of the DSA to
read in its entirety as follows:
10. MONTHLY RECURRING INTEREXCHANGE SERVICE RATES: Customer will
receive the following rates and discounts for Service ordered hereunder.
Customer will not receive any other discounts unless specifically set forth
herein.
(A) The Base Rate per VGE per V&H Mile for On-Net DS-3 level
Interexchange Service will be as follows based on Customer's
Spending Level (as defined in Subsection (F) below):
Monthly
Spending Level Rate
----------------------- ---------
[________] - [________] [______]
[________] - [________] [______]
[________] - [________] [______]
[________] - [________] [______]
[_________] [______]
(B) The Base Rate per VGE per V&H Mile for On-Net and Extended DS-l
level Interexchange Service will be as follows based on Customer's
Spending Level (as defined in Subsection (F) below):
Page 3 of 10 CONFIDENTIAL
------------
Monthly
Spending Level Rate
----------------------- -----------
[________] - [________] [_______]
[________] - [________] [_______]
[________] - [________] [_______]
[________] - [________] [_______]
[_________] [_______]
(C) The Base Rate for Multiple DS-l level Interexchange Service
("Multiple DS-1 Service") will be the DS-l Interexchange Service rates
described in Subsection (B) above. Multiple DS-l Service between and
among WilTel On-Net Cities and/or WilTel Extended Cities ordered
solely by one Member (i.e., Members may not allocate Service under
this Subsection (D)) will be subject to the discounts described below
provided all of the following conditions are met:
(i) Customer orders at least six (6) DS-l circuits between or
among On-Net Cities and/or WilTel Extended Cities at one time (the
"Circuit Package");
(ii) the Requested Service Dates relevant to all of the DS-1s in
the Circuit Package are subject to WilTel's standard intervals and, if
more than one date is requested, the dates are within the same thirty
(30) day period; and
(iii) the Service Commitment Period for each of the DS-ls in
question is twelve (12) months.
In the case of a new initial Circuit Package comprised exclusively of
existing DS-1s, the Multiple DS-1 Service discount and twelve (12)
month Service Commitment Period will commence as of the second monthly
billing period following the month in which the Service Order therefor
is submitted. If Customer desires to create a larger Circuit Package
or create an initial Circuit Package from existing DS-ls and
incremental new DS-ls (e.g., take a Circuit Package of 6 to a Circuit
Package of 10 DS-ls; or, create an initial Circuit Package of at least
6 DS-ls with at least 4 existing DS-1s plus an additional incremental
2 DS-ls), Customer will first identify all DS-ls to be in the
resulting Circuit Package. All circuits within the resulting Circuit
Package will be subject to a twelve (12) month Service Commitment
Period commencing as of the date the last circuit comprising the
Page 4 of 10 CONFIDENTIAL
------------
package is installed. If through the creation of a larger Circuit
Package existing DS-ls should be subject to a greater level of
discount, the applicable discount shall commence for the existing
DS-ls as of the date the last circuit in the larger Circuit Package in
installed, and the applicable discount for each new incremental DS-l
relevant to the larger Circuit Package shall commence as of Start of
Service for each such incremental DS-l.
No. of DS-1s One Common End Two Common Ends
------------ -------------- ---------------
6 - 12 [___] [___]
13 - 18 [___] [___]
19 - 26 [___] [___]
(D) The Base Rate per V&H Mile for On-Net and Extended DS-0 level
Interexchange Service between will be [___].
(E) For purposes of this Section 10, "Monthly Spending Level" will
include (i) "Monthly Recurring Interexchange Service Charges" (as
defined in Subsection 9(D) above), and (ii) provided Customer's
Monthly Recurring Interexchange Service Charges are at least [______],
[_____________] of Customer's International monthly measured and per
call usage charges for Switched Services purchased by Customer from
WilTel (excluding Local Access charges, Ancillary Service charges,
special feature charges such as Authorization Codes or CDR Tapes, or
any other charges other than those identified by the relevant WilTel
invoice as Switched Service charges). The Monthly Spending Level will
be determined at the end of each month and will be based on WilTel's
latest private line invoice to Customer. The Monthly Spending Level
determined at the time of such computation shall be effective from the
first day through the last day of each calendar month following the
month in which the computation is made.
C. Commitment Schedule. As of the Effective Date of this Amendment, the
-------------------
Commitment Schedule described in Subsection 17 (B) of the DSA will be replaced
by the Amended and Restated Commitment Schedule attached hereto and incorporated
herein by reference.
D. Other Terms and Conditions. Except to the extent specifically modified
--------------------------
by this Amendment, the remaining terms and conditions contained in the DSA, the
Prior Amendment and Amendment No. 2, as applicable, shall remain in full force
and effect through the remainder of the Term described in this Amendment.
Page 5 of 10 CONFIDENTIAL
E. Counterparts. This Amendment may be executed in multiple
------------
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
WORLDCOM NETWORK SERVICES, INC.
d/b/a WILTEL
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
(Signature)
Xxxxxxx X. Xxxx
------------------------------------------------
(Print Name)
Vice President Carrier Sales
------------------------------------------------
(Title)
ASSOCIATED COMMUNICATIONS COMPANIES
OF AMERICA
By: /s/ Xxxx Xxxxxxx
---------------------------------------------
(Signature)
Xxxx Xxxxxxx
------------------------------------------------
(Print Name)
Vice President
------------------------------------------------
(Title)
Page 6 of 10 CONFIDENTIAL
------------
ACC LONG DISTANCE CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------------------------
(Signature)
Xxxxx Xxxxx
------------------------------------------------
(Print Name)
VP, Network Planning
------------------------------------------------
(Title)
ATX COMMUNICATIONS AND SERVICES
OF AMERICA
By: /s/ Xxxxx Xxxxx
---------------------------------------------
(Signature)
Xxxxx Xxxxx
------------------------------------------------
(Print Name)
Dir. Bus. Ops.
------------------------------------------------
(Title)
BUSINESS TELECOM, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------------
(Signature)
Xxxx Xxxxxxx
------------------------------------------------
(Print Name)
COO
------------------------------------------------
(Title)
Page 7 of 10 CONFIDENTIAL
------------
CINCINNATI XXXX LONG DISTANCE, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
(Signature)
Xxxxx X. Xxxxxx
-------------------------------------------------
(Print Name)
President & CEO
-------------------------------------------------
(Title)
CONSOLIDATED COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------------
(Signature)
Xxxxx X. Xxxx
-------------------------------------------------
(Print Name)
V.P. & G.M.
-------------------------------------------------
(Title)
LONG DISTANCE SAVERS, INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------
(Signature)
Xxxxx Xxxxxxxx
-------------------------------------------------
(Print Name)
Vice President
-------------------------------------------------
(Title)
Page 8 of 10 CONFIDENTIAL
------------
NATIONAL TELECOMMUNICATIONS OF FLORIDA
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
(Signature)
Xxxx Xxxxxxx
-------------------------------------------------
(Print Name)
President
-------------------------------------------------
(Title)
DELTA COMM, INC.
By: /s/ Xxx Xxxxxx
----------------------------------------------
(Signature)
Xxx Xxxxxx
----------------------------------------------
(Print Name)
SR VP
-------------------------------------------------
(Title)
TELEFONICA LARGA DISTANCIA
DE PUERTO RICO, INC.
By: /s/
----------------------------------------------
(Signature)
-------------------------------------------------
(Print Name)
-------------------------------------------------
(Title)
Page 9 of 10 CONFIDENTIAL
------------
U.S. LONG DISTANCE, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
(Signature )
Xxxxx X. Xxxxxx
-------------------------------------------------
(Print Name)
Senior Vice President
-------------------------------------------------
(Title)
Page 10 of 10 CONFIDENTIAL
------------
AMENDED AND RESTATED
COMMITMENT SCHEDULE
Company Commitment
--------------------------------------------- ----------
AC Long Distance Corporation [______]
ATX Telecommunications and Services [______]
Business Telecom, Inc. [______]
Cincinnati Xxxx Long Distance, Inc. [______]
Consolidated Communications Inc. [______]
Long Distance Savers [______]
Telefonica Larga Distancia
de Puerto Rico, Inc. [______]
National Telecommunications
of Florida [______]
Delta Comm, Inc. [______]
U.S. Long Distance, Inc. [______]
--------
TOTAL [______]
