AMENDMENT NO. 5 TO DIAL ACCESS SERVICES AGREEMENT
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
AMENDMENT
NO. 5
TO
THIS
AMENDMENT NO. 5
to Dial
Access Services Agreement (this “Amendment”) is effective as of May 17, 2005
(the “Amendment Effective Date”) by and between Qwest
Communications Corporation (“Customer”)
and Pac-West
Telecomm, Inc.
(“Pac-West”). Pac-West and Customer are sometimes collectively referred to
herein as the “Parties.” All defined or capitalized terms used herein shall have
the same meanings ascribed to them in the Agreement, unless specifically
otherwise provided in this Amendment No. 5.
WHEREAS,
Pac-West
and Customer entered into that certain Dial Access Services Agreement effective
as of January 31, 2002 (the “Agreement”);
WHEREAS,
the
Parties have modified the Agreement by entering into Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇
▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, and Amendment No. 4 to Dial Access Services Agreement
(collectively referred to as “the Existing Agreement”);
WHEREAS,
the
Parties desire to further modify the Agreement as more particularly described
below:
NOW,
THEREFORE, in
consideration of the mutual promises and covenants herein and in the Agreement,
the Parties agree as follows:
| 1. |
All
existing port phases, prior to this Amendment, shall continue under
the
previously agreed terms of the Existing Agreement until the term
for such
ports phases expires as defined in the Existing Agreement. Once
such port
phases expires, Customer has the option of renewing the Services
on a
month-to-month basis (“Renewal Services”), unless such renewals will be
part of the Extended Term Port Commitment, as described below.
The pricing
for Renewal Services shall be specified in the pricing table below,
dependent on during which Contract Year the Renewal Services are
renewed.
For example, if Renewal Services are renewed during Contract Year
2 of the
Extended Term, then the pricing shall fall under the column, Contract
Year
2, and the price shall be dependent on the number of ports in-service
at
the time.
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| 2. |
Customer
agrees to extend the term of the Existing Agreement through July
30, 2008
(“Extended Term”). During the Extended Term, two (2) additional groups of
ports shall be renewed (if existing ports have met their term commitment
and are being renewed as part of the Extended Term Port Commitment)
and/or
added. The first group shall be defined as “Group 1” and consists of [**]
ports with a term beginning on August 1, 2005. The second group
shall be
defined as “Group 2” and consist of [**] ports with a term beginning on
May 1, 2006. All ports in Group 1 and Group 2 (collectively referred
to as
the “Extended Term Port Commitment”) shall expire co-terminously on July
30, 2008.
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Pac-West/Qwest
Confidential
Confidential
Information Redacted and Filed Separately with the Commission.
Omitted
Portions Indicated by [**]
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
|
3.
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Pac-West
shall charge Customer the rates outlined below during the Extended
Term of
the Existing Agreement.
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Number
of Ports
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Contract
Year-1 MRC
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Contract
Year-2 MRC
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Contract
Year-3 MRC
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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*
Contract years will run from August 1 through July 31.
**
The
pricing outlined above applies to all ports but each pricing tier is separate
dependent on the Contract Year and the number of ports that are in-service
(Ex: in Yr-1, the [**].).
***
Ports
in Nevada carry a [**] premium per month in addition to the pricing outlined
above.
| 4. |
Customer
is responsible for providing all Network Access Service (“NAS”) equipment
during the Extended Term.
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| 5. |
Customer
shall continue to be responsible for all maintenance on the NAS
and all
associated equipment during the Extended
Term.
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| 6. |
Customer
shall use commercially reasonable efforts to provide Pac-West with
a first
right of refusal if Customer intends to disconnect ports for the
purpose
of moving Service to another service provider. In the event Customer
receives a bid for comparable services from another service provider,
and
intends to accept such bid, then Pac-West shall have first right
of
refusal to provide such Services. Customer agrees to provide Pac-West
with
written notice of the bid, provided that such bid information does
not
contain the name of the service provider or other confidential
information
that Customer is not permitted to share with Pac-West due to
confidentiality obligations with such service provider, and Pac-West
shall
have five (5) business days to respond to such bid with an offer
of its
own. If Pac-West is within five percent (5%) of the competitive
bid, then
Customer agrees the ports shall remain on the Pac-West network
for the
remaining circuit term. Notwithstanding the foregoing, Customer
shall not
be obligated to provide Pac-West with a right of first refusal
if (1)
Customer’s end-user has expressed a preference to use another provider as
a result of Pac-West’s network performance; (2) Customer has a
conflicting contractual commitment to another provider; (3) Customer
is using its own facilities to provide the
Services.
|
2
Pac-West/Qwest
Confidential
Confidential
Information Redacted and Filed Separately with the Commission.
Omitted
Portions Indicated by [**]
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
|
7.
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The
termination liability outlined in Section 3(b) of the Existing
Agreement
shall apply to the previously existing port phases until each existing
port phase has expired, as defined in the Existing Agreement. As
to the
Extended Term Port Commitment, Customer is obligated to maintain
a minimum
take-or-pay commitment for the full number of ports contained in
Extended
Term Port Commitment during the Extended Term and one hundred percent
(100%) early termination liability applies to any circuit disconnections
dropping Customer below the respective Extended Term Port Commitments
for
Groups 1 and 2. If new ports are added during the Extended Term
that
exceed the quantity of ports installed on a month-to-month basis
in
accordance with the pricing table above, dependent on during which
Contract Year the new Services are installed. For example, if new
Services
are installed during Contract Year 2 of the Extended Term, then
the
pricing shall fall under the column, Contract Year 2, and the price
shall
be dependent on the number of ports in-service at the time of
installation.
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| 8. |
The
Port Usage Rebate in Section 5(c) of the Existing Agreement shall
be
deleted in its entirety.
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| 9. |
All
other terms and conditions in the Existing Agreement shall remain
in full
force and effect and be binding upon the Parties. This Amendment
and the
Existing Agreement set forth the entire understanding between the
Parties
as to the subject matter herein, and in the event there are any
inconsistencies between the Existing Agreement and this Amendment,
the
terms of this Amendment shall
control.
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IN
WITNESS WHEREOF, an
authorized representative of each Party has executed this Amendment as of
the
dates set forth below.
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QWEST
COMMUNICATIONS CORPORATION
By:
/s/
Ford ▇. ▇▇▇
Name:
Ford
▇. ▇▇▇
Title:
Director,
Finance - Network
Date:
May
11, 2005
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PAC-WEST
TELECOMM, INC.
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice
President - Sales
Date:
May
17, 2005
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3
Pac-West/Qwest
Confidential
Confidential
Information Redacted and Filed Separately with the Commission.
Omitted
Portions Indicated by [**]