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Exhibit
10.10
BILLING AND COLLECTION
AGREEMENT
This BILLING AND COLLECTION
AGREEMENT (this “ Agreement ”) is entered into
as of November 30, 2007 (the “ Effective Date
”), by and between Windstream Communications, Inc., a
Delaware corporation (“ WCI ”), and Windstream
Yellow Pages, Inc., an Ohio corporation (“ Publisher
”). Promptly after the date hereof, the Publisher will change
its name to Local Insight Yellow Pages, Inc. WCI and Publisher are
each sometimes referred to herein as a “ Party ”
and together as the “ Parties ”. Capitalized
terms not otherwise defined herein will have the meanings assigned
to such terms in Article I.
RECITALS
A. Windstream Corporation
(“ WIN ”), Regatta Holding I, L.P., a Delaware
limited partnership, Regatta Holding II, L.P., a Delaware limited
partnership, Regatta Holding III, L.P., a Delaware limited
partnership (each a “ WCAS Sub ” and together
the “ WCAS Subs ”), Welsh, Carson,
Anderson & Stowe VIII, L.P., a Delaware limited
partnership, Welsh, Carson, Anderson & Stowe IX, L.P., a
Delaware limited partnership, and WCAS Capital Partners III, L.P.,
a Delaware limited partnership, have entered into that certain
Share Exchange Agreement, dated as of December 12, 2006 (the
“ Share Exchange Agreement ”), pursuant to
which, as of the date hereof, the WCAS Subs have exchanged all the
shares of common stock, par value $0.0001 per share, of WIN held by
the WCAS Subs for all the shares of common stock, par value $0.01
per share, of Windstream Regatta Holdings, Inc., a Delaware
corporation;
B. Section 2.1(c) of the
Share Exchange Agreement provides for the execution of this
Agreement at or prior to the Closing of the transactions
contemplated thereby; and
C. Publisher desires to
purchase, and WCI agrees to provide, the billing and collection
services described in Exhibit A hereto (collectively, the
“ Billing and Collection Services ”).
NOW, THEREFORE, in
consideration of the mutual benefits accruing to each Party and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby covenant and
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General
Rules of Construction . For all purposes of this Agreement:
(i) the terms defined in this Agreement include the plural as
well as the singular; (ii) all references in this Agreement to
designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other
subdivisions of the body of this Agreement; (iii) pronouns of
either gender or neuter include, as appropriate, the other pronoun
forms; (iv) the words “herein,”
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) “or” is not exclusive;
(vi) “including” and “includes” will
be deemed to be followed by “but not limited to” and
“but is not limited to”, respectively; (vii) any
definition of or reference to any Law, agreement, instrument or
other document herein will be construed as referring to such
Law,
agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified;
and (viii) any definition of or reference to any statute will
be construed as referring also to any rules and regulations
promulgated thereunder.
Section 1.2
Definitions . The following definitions will apply within
this Agreement:
(a) “ ABEC
” means the alternate billing entity code assigned by WCI for
each of Publisher’s separate lines of business or separate
directories, as required by WCI’s billing system.
(b) “ Actual Bad
Debt ” has the meaning ascribed thereto in
Section 6.4(a) hereof.
(c) “
Adjustment(s) ” means post-billing transactions issued
by Publisher or WCI for the purposes of debiting or crediting
lawfully billed charges on the End User bill, whether as to an
individual charge or for combinations of charges.
(d) “ Affiliate
” means a Person that directly, or indirectly through one or
more intermediaries, controls, is controlled by or is under common
control with, a specified Person.
(e) “ Agreement
” has the meaning ascribed thereto in the Preamble
hereto.
(f) “ Audit
” has the meaning ascribed thereto in Section 6.6(a)
hereof.
(g) “ Bad Debt
” means an account receivable due from an End User arising
from a Billing Transaction that remains unpaid as of the date that
WCI ceases collection activities pursuant to Section 3.10;
provided , however , that, in the event that the
local telephone service of an End User is reconnected, only such
portion of the End User’s account receivable as was unpaid at
the time of reconnection shall, from such date forward, constitute
Bad Debt unless and until such time as any additional portions of
such End User’s account receivable remain unpaid as of any
date that WCI next ceases collection activities pursuant to
Section 3.10.
(h) “ Bad Debt
Allowance ” has the meaning ascribed thereto in
Section 6.1 hereof.
(i) “ Bankruptcy
Code ” means the United States Bankruptcy Code (11 U.S.C.
§§ 101 et seq.), as amended from time to time, and any
successor statute.
(j) “ Billing and
Collection Services ” has the meaning ascribed thereto in
the Recitals hereto.
(k) “ Billing
Cost ” has the meaning ascribed thereto in
Section 6.1 hereof.
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(l) “ Billing
Information ” has the meaning ascribed thereto in
Section 5.9 hereof.
(m) “ Billing
Transaction ” means a Publisher-originated charge-type
transaction that results in an End User being billed for Publishing
Services within the WCI-shared bill.
(n) “ Business
Day ” means any day other than a Saturday, a Sunday or a
day on which banks in New York, New York are required or authorized
by Law to remain closed.
(o) “ Change of
Control ” means: (i) an acquisition by any Person or
group of Persons of the voting stock of the referenced Person in a
transaction or series of transactions, if immediately thereafter
such acquiring Person or group has, or would have, beneficial
ownership of more than 50% of the combined voting power of the
referenced Person’s then outstanding voting stock, including
any such acquisition by way of a merger, consolidation or
reorganization (including under the Bankruptcy Code), or series of
such related transactions, involving the referenced Person;
(ii) a sale, assignment or other transfer of all or
substantially all of the referenced Person’s assets; or
(iii) a confirmation of any plan of reorganization or
liquidation under, or sale of assets pursuant to, the Bankruptcy
Code, any out-of-court recapitalization or reorganization
transaction or exchange offer, in any case in which more than fifty
percent (50%) of such Person’s outstanding equity
securities are issued in exchange for all or a significant portion
of such Person’s outstanding debt or other securities, or a
deed in lieu of foreclosure or any other remedy or right at law or
contract by which substantially all of such Person’s equity
securities or assets are surrendered, assigned or otherwise
transferred to another Person.
(p) “ Confidential
Information ” means information disclosed by one Party to
the other in the course of the performance of the Parties’
respective obligations or exercise of the Parties’ respective
rights under this Agreement.
(q) “ Custom Request
Work ” has the meaning ascribed thereto in
Section 4.2 hereof.
(r) “ Developmental
Charge ” has the meaning ascribed thereto in
Section 4.2 hereof.
(s) “ Directory
Advertising ” means Publisher’s foreign and local
White Page advertising, Yellow Page advertising and other related
Publishing Services agreed upon in writing by the
Parties.
(t) “ Effective
Date ” has the meaning ascribed thereto in the Preamble
hereto.
(u) “ End User
” means a consumer that: (i) utilizes or subscribes to
Publishing Services. and (ii) has an active account for local
telephone service with WCI.
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(v) “ Force Majeure
Condition ” has the meaning ascribed thereto in
Section 14.1 hereof.
(w) “ Governmental
Entity ” means any government or any agency, bureau,
board, commission, court, department, official, political
subdivision, tribunal or other instrumentality of any government,
whether federal, state or local, domestic or foreign.
(x) “ Holiday
” has the meaning ascribed thereto in Section 6.2(b)
hereof.
(y) “ Initial
Term ” has the meaning ascribed thereto in
Section 12.1 hereof.
(z) “ Invoice
” has the meaning ascribed thereto in Section 6.2
hereof.
(aa) “ Laws
” means all laws, statutes, ordinances, rules, regulations
and orders of any Governmental Entity.
(bb) “ Licensed
Property ” has the meaning ascribed thereto in
Section 5.9 hereof.
(cc) “ L.M. Berry
Contract ” has the meaning ascribed thereto in
Section 11.1 hereof
(dd) “ Losses
” has the meaning ascribed thereto in Section 9.1
hereof.
(ee) “ Operating
Procedures ” means the operating procedures set forth in
Exhibit A hereto.
(ff) “ Page
” means the section of the WCI-shared bill where a
Publisher’s Billing Transaction is printed, which for
purposes of this Agreement is not the same as an actual sheet of
bill paper stock, and which may take on different characteristics
depending on the bill format, as described below:
1. Quad Formatted Bills
(utilized for the majority of residence and small business
accounts) provide for a single sheet of paper stock to be separated
into four Pages, also known as Quadrants, with two Pages/Quadrants
printed on each side of the paper.
2. Non-Quad Formatted Bills
(utilized for large business accounts and “held-type”
bills among others) provide for a single Page to be printed on
either one full side of the bill paper stock or, in some cases,
both full sides of the bill paper stock.
(gg) “ Party
” and “ Parties ” have the meanings
ascribed thereto in the Preamble hereto.
(hh) “ Payment
Date ” has the meaning ascribed thereto in
Section 6.3 hereof.
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(ii) “ Person
” means an association, corporation, individual, partnership,
limited liability company, trust or any other entity or
organization, including a Governmental Entity.
(jj) “ Potentially
Unbilled Transaction ” has the meaning ascribed thereto
in Section 7.1 hereof.
(kk) “ Publisher
” has the meaning ascribed thereto in the Preamble
hereto.
(ll) “ Publisher
Taxes ” means (i) all state and local sales, use,
value-added, gross receipts, foreign, privilege, utility,
infrastructure maintenance, property, federal excise and similar
levies, duties and other similar tax-like charges lawfully levied
by a duly constituted taxing authority against or upon the
Publishing Services provided to End Users; and
(ii) tax-related surcharges or fees that are related to the
Publishing Services provided to End Users and authorized by
applicable tariffs.
(mm) “ Publishing
Agreement ” means that certain Publishing Agreement,
dated the Effective Date, between WIN and Publisher.
(nn) “ Publishing
Services ” has the meaning ascribed thereto in
Section 2.1 hereof.
(oo) “ Renewal
Term ” has the meaning ascribed thereto in
Section 12.1 hereof.
(pp) “ Services
Areas ” has the meaning ascribed thereto from time to
time in the Publishing Agreement.
(qq) “ Service
Taxes ” means (i) all state and local sales, use,
value-added, gross receipts, foreign, privilege, utility,
infrastructure maintenance, property, federal excise and similar
levies, duties and other similar tax-like charges lawfully levied
by a duly constituted taxing authority against or upon the Billing
and Collection Services performed by WCI under this Agreement; and
(ii) tax-related surcharges or fees that are related to the
Billing and Collection Services performed by WCI under this
Agreement and authorized by applicable tariffs.
(rr) “ Share
Exchange Agreement ” has the meaning ascribed thereto in
the Recitals hereto.
(ss) “ Total Amount
Due to Publisher ” has the meaning ascribed thereto in
Section 6.1 hereof.
(tt) “
Unbillable ” means those billing records, including
Adjustments, which cannot be billed to an End User
account.
(uu) “ WCAS Subs
” has the meaning set forth in the Recitals
hereto.
(vv) “ WCI
” has the meaning ascribed thereto in the Preamble
hereto.
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(ww) “ White
Pages ” means directories comprised of or containing
alphabetical listings of subscribers having local exchange
telephone service in the applicable geographic area.
(xx) “ WIN
” has the meaning ascribed thereto in the Recitals
hereto.
(yy) “ Yellow
Pages ” means directories comprised of or containing
classified advertising.
ARTICLE II
PURPOSE
Section 2.1
Publishing Services . The purpose of this Agreement is to
set forth the terms and conditions pursuant to which WCI will
provide the Billing and Collection Services in support of
Publisher’s business of publishing telephone directory
products and services consisting principally of searchable (e.g.,
by alphabet letter or category) multiple telephone listings and
classified advertisements that are delivered or otherwise made
available to End Users in tangible media (e.g., paper directories,
CD-ROM), electronic media (e.g., Internet) or digital media (e.g.,
PDA download), as conducted by Publisher on the Effective Date, or
as may be approved by WCI from time to time pursuant to
Section 5.2. Such products and services of Publisher will
hereinafter be referred to collectively as “ Publishing
Services ”.
Section 2.2 Billing
of Publishing Services . WCI agrees to: (i) bill End User
accounts for amounts due to Publisher in respect of Publishing
Services within the Service Areas; (ii) provide the other
Billing and Collection Services described herein; and
(iii) remit to Publisher the amounts billed to End Users for
such Publishing Services less the applicable Bad Debt Allowance and
Billing Cost, all upon the terms and subject to the conditions set
forth herein.
ARTICLE III
PROVISION OF BILLING
AND COLLECTION SERVICES
Section 3.1 Agency;
Ownership . WCI agrees and acknowledges that, subject to the
various terms and conditions contained herein: (i) it is
undertaking the various Billing and Collection Services with
respect to Publisher’s properly submitted Publishing
Service-related billing requests hereunder, as an agent for, and on
behalf and for the benefit of, Publisher; and (ii) all right,
title and interest in and to Publisher’s accounts receivable
and all right to payment for Publishing Services rendered by
Publisher and lawfully billed as charges on the WCI End User bill
(including all collections and proceeds thereof) will continue to
be owned by Publisher, except to the extent of any Bad Debt
Allowance and Billing Cost or other payments due pursuant to
Article VI hereof, in each case, which are properly deducted by WCI
hereunder. The Parties agree that Publisher will exclusively and
solely own all information of the End Users that is transmitted
hereunder, together with all aggregated or generated data and
compilations solely containing such information and generated
hereunder (and such information will be subject to Article XIII),
other than those components of such information provided to
Publisher by WIN under that certain Publishing Agreement among WIN,
the WCAS Subs and
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Publisher, of even date herewith, as the
same may be amended, modified or supplemented from time to
time.
Section 3.2 Shared
Bill . Billing and Collection Services provided under the terms
of this Agreement are contingent upon a shared WCI End User bill in
which WIN or its Affiliates are the provider of local telephone
service (subject to the assignment provisions contained in
Section 15.2 hereof). In no event shall WCI have any
responsibility hereunder for the provision of Billing and
Collection Services with respect to any End User that does not have
an account with WCI.
Section 3.3 Format of
Shared Bill . Except as otherwise provided herein, presentation
of Billing Transactions and Publisher’s portion of the bill
will be in WCI’s standard format, as in effect from time to
time, including, but not limited to, logos, bill format, type of
Billing Transactions, market messages and relationship to other
sections within the same bill.
Section 3.4 Billing
Rights’ Notice . On an annual basis, WCI will provide End
Users with information relating to their billing rights for
Publishing Services, in accordance with Federal Communications
Commission, Federal Trade Commission and other applicable legal
guidelines. Publisher will prepare such information and agrees to
pay WCI the costs associated with providing End Users with such
information.
Section 3.5 Billing
Disclaimers . Publisher agrees that WCI, in the event required
by Law, will print a disclaimer on Publisher’s portion of the
bill that advises End Users that failure to pay for
Publisher’s charges billed within the WCI-shared bill will
not result in the disconnection of the End User’s local
telephone service, in accordance with federal and state
truth-in-billing regulatory rules, including, without limitation,
those promulgated by the Federal Communications Commission from
time to time relating specifically to telephone bills.
Section 3.6 Bill
Mailing . For the purposes of this Agreement, if WCI prints a
bill that includes a Billing Transaction that complies with
Section 3.3, and deposits the bill with the United States
Postal Service, it will be deemed to have “billed” the
Billing Transaction contained on such bill.
Section 3.7 Billing
Procedures . WCI shall bill each End User for Publishing
Services (and taxes, to the extent such taxes are to be paid by
such End User and identified by Publisher) sold by Publisher to
such End User or placed by Publisher on behalf of such End User, on
a monthly basis pursuant to the Operating Procedures. Publisher
shall notify WCI as to the account number, amount and description
of charges to be billed to End Users by WCI in the format described
in and otherwise in accordance with the Operating Procedures. WCI
shall as promptly as practicable notify Publisher in accordance
with the Operating Procedures if any End User that Publisher has
requested WCI to bill does not have an active account with WCI as
of the date of any applicable invoice or is otherwise
“Unbillable.”
Section 3.8 Billing
Account Maintenance . WCI shall be responsible for the
updating, storage and retention of all Billing Information. WCI
shall have the primary responsibility to establish and maintain the
End User master filed records for all Publisher billing
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records to such End User. If Publisher
requests WCI to bill End Users on a basis other than monthly, WCI
shall accommodate such request for such additional charges as may
be mutually agreed by the parties.
Section 3.9 Lost
Billing Information . If any Billing Information is determined
to be lost, damaged or destroyed by WCI as a result of its
preparation and mailing to End Users of bills hereunder, WCI shall
use all commercially reasonable efforts to recover such Billing
Information. If the lost Billing Information cannot be recovered
through the mutual efforts of the Parties (including via
retransmission or re-sending by Publisher pursuant to
Section 5.13), WCI shall, if reasonably practicable, estimate
the billing records and associated revenues for purposes of any
rebilling under Section 7.2, subject to Publisher’s
prior review and approval of the amount billed.
Section 3.10
Collection Activities . All collection efforts with respect
to amounts owing from End Users with respect to Publishing Services
will be the sole responsibility of WCI; provided, however, that WCI
shall have no further responsibility with respect to the collection
of amounts owing from an End User with respect to Publishing
Services (a) if WIN or its Affiliates has written off the
account balances owed by such End User to WIN or its Affiliates due
to non-payment or for any other reason or (b) to the extent
agreed upon from time to time by the Parties. WCI shall send a
semi-monthly notice to Publisher, on or about the 15
th
and the last day of each
month, indicating those End Users whose account balances have been
written off in the preceding period and for whom collection efforts
have accordingly ceased. In the event that WIN or its Affiliates
reconnect the local telephone service of an End User whose account
balances were previously written off under clause (a), WCI shall
recommence the Billing and Collection Services with respect to such
End User (it being understood that in such situation, WCI will not
be obligated to collect amounts previously written off, but will be
obligated to bill for and collect amounts owing with respect to
additional Publishing Services provided following the date such End
User’s local telephone service is reconnected).
Section 3.11
Collection Procedures . In collecting amounts due with
respect to Publishing Services: (i) WCI shall apply the
then-current procedures that WCI uses with respect to its own
collection efforts and (ii) shall maintain separate accounts
receivable and payment records with regard to the Publishing
Services.
ARTICLE IV
DEVELOPMENTAL
CHARGE(S)
Section 4.1 Set-Up
Charges . Publisher acknowledges and agrees that it is
responsible for paying the initial set-up costs for the
implementation of each ABEC.
Section 4.2 Custom
Request Work; Developmental Charges . Publisher may from time
to time request that WCI develop one or more additional billing
identifiers or other billing services (“ Custom Request
Work ”). Subject to an agreement on terms and prices as
contemplated in the next sentence, WCI will use, and will cause
each of its Affiliates to use, its reasonable best efforts to
accommodate any reasonable request by Publisher to develop Custom
Request Work. Any such Custom Request Work shall be provided on
such
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terms and at such prices (each, a
“ Developmental Charge ”) as may be mutually
agreed by the parties. All Developmental Charges will be due and
payable to WCI in advance within thirty (30) days after WCI
has agreed to implement the request.
ARTICLE V
RESPONSIBILITIES OF
PUBLISHER
Section 5.1 Billing
Codes . Publisher will utilize uniquely designated ABECs
assigned by WCI for purposes of billing Publishing
Services.
Section 5.2
Additional Publishing Services . Prior to submitting any new
Publishing Services for billing as part of the Billing and
Collection Services, Publisher agrees to prepare and submit to WCI
a letter formally requesting the inclusion of such Publishing
Services for billing as part of the Billing Agreement, together
with such additional documentation and information as WCI may
reasonably request, which may include marketing materials, program
descriptions and content materials. In no event shall the Billing
and Collection Services extend to any new Publishing Services
unless and until approved by WCI in its sole discretion.
Section 5.3 Billing
Transaction Representation . For Billing Transactions submitted
to WCI for billing, Publisher will provide, as part of such Billing
Transaction, pertinent data for presentation on the End User bill
with the appropriate level of detail to ensure that the
presentation of the charge/credit on the bill is a true
representation of the transaction in all material respects. Without
limiting Publisher’s obligations as set forth in the previous
sentence, for each Billing Transaction submitted to WCI for
billing, Publisher will provide the following information to ensure
the presentation of the charge/credit on the bill is a true
representation of the transaction with respect thereto:
(1) service descriptions and/or program names;
(2) transaction date; (3) total amount of the
transaction, including appropriate tax(es); and (4) duration
of the transaction for time-sensitive billing. Publisher will
ensure that each Billing Transaction is coded with the correct
directory ABEC, in order that WCI may correctly allocate End
User’s remittances to the proper ABECs. Further, at the
reasonable request of WCI, Publisher agrees to provide WCI with
billing details that validate that the transaction was actually
initiated and authorized by the End User.
Section 5.4
Applicable Taxes . Publisher agrees to submit Billing
Transactions to WCI with any appropriate Publisher Taxes:
(1) combined “bundled” with the Publishing Service
charge or (2) as a separate Billing Transaction amount, in
either case to the extent permitted by applicable Law. Further,
Publisher will have the responsibility of setting the appropriate
tax exemption indicator correctly within each Billing Transaction.
It shall be the sole and exclusive obligation of Publisher to
timely remit to the proper taxing authorities all Publisher Taxes
charged to End Users for Publishing Services pursuant to Article X
herein.
Section 5.5 Billing
Inquiries . In the event that an End User makes an inquiry or
complaint regarding the Publishing Services: (i) if the
inquiry or complaint is made to WCI by an End User, WCI will use
commercially reasonable efforts to (A) resolve inquiries
regarding Billing Transactions, to the extent reasonably
practicable to do so with the information available to WCI,
(B) provide the End User with Publisher’s contact
information in the case of
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inquiries regarding Billing Transactions
that WCI cannot resolve pursuant to clause (A) above and any
other inquiries relating to Publishing Services, and (C) refer
complaints regard
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