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Exhibit
10.9
BILLING AND COLLECTION
AGREEMENT
(Foreign
Customers)
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, 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) “
Adjustment(s) ” means post-billing transactions issued
by Publisher or WCI for the purposes of debiting or crediting
lawfully billed charges on the Foreign Customer bill, whether as to
an individual charge or for combinations of charges.
(c) “ 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.
(d) “ Agreement
” has the meaning ascribed thereto in the Preamble
hereto.
(e) “ Audit
” has the meaning ascribed thereto in Section 6.6(a)
hereof.
(f) “ Bad Debt
” means an account receivable due from a Foreign Customer
arising from a Billing Transaction that remains unpaid as of the
date that WCI ceases collection activities pursuant to
Section 3.7.
(g) “ 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.
(h) “ Billing and
Collection Services ” has the meaning ascribed thereto in
the Recitals hereto.
(i) “ Billing
Cost ” has the meaning ascribed thereto in
Section 6.1 hereof.
(j) “ Billing
Information ” has the meaning ascribed thereto in
Section 5.9 hereof.
(k) “ Billing
Transaction ” means a Publisher-originated charge-type
transaction that results in a Foreign Customer being billed for
Publishing Services within the WCI-shared bill.
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(l) “ 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.
(m) “ 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.
(n) “ 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.
(o) “ Custom Request
Work ” has the meaning ascribed thereto in
Section 4.2 hereof.
(p) “ Developmental
Charge ” has the meaning ascribed thereto in
Section 4.2 hereof.
(q) “ 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.
(r) “ Effective
Date ” has the meaning ascribed thereto in the Preamble
hereto.
(s) “ End User
” means a consumer that: (1) utilizes or subscribes to
Publishing Services, and (ii) has an active account for local
telephone service with WCI.
(t) “ End User
B&C Agreement ” means that certain Billing and
Collection Agreement, dated the Effective Date, between WIN and the
Publisher pursuant to which WIN provides billing and collection
services with respect to End Users.
(u) “ Force Majeure
Condition ” has the meaning ascribed thereto in
Section 14.1 hereof.
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(v) “ Foreign
Customer ” means a consumer that (i) utilizes or
subscribes to Publishing Services, and (ii) is not an End
User.
(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 the End
User B&C Agreement.
(dd) “ Losses
” has the meaning ascribed thereto in Section 9.1
hereof. “ Operating Procedures ” means the
operating procedures set forth in Exhibit A
hereto.
(ee) “ Party
” and “ Parties ” have the meanings
ascribed thereto in the Preamble hereto.
(ff) “ Payment
Date ” has the meaning ascribed thereto in
Section 6.3 hereof.
(gg) “ Person
” means an association, corporation, individual, partnership,
limited liability company, trust or any other entity or
organization, including a Governmental Entity.
(hh) “ Potentially
Unbilled Transaction ” has the meaning ascribed thereto
in Section 7.1 hereof.
(ii) “ Publisher
” has the meaning ascribed thereto in the Preamble
hereto.
(jj) “ 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 Foreign Customers; and
(ii) tax-related surcharges or fees that are related to the
Publishing Services provided to Foreign Customers and authorized by
applicable tariffs.
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(kk) “ Publishing
Agreement ” means that certain Publishing Agreement,
dated the Effective Date, between WIN and Publisher.
(ll) “ Publishing
Services ” has the meaning ascribed thereto in
Section 2.1 hereof.
(mm) “ Services
Areas ” has the meaning ascribed thereto from time to
time in the Publishing Agreement.
(nn) “ 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.
(oo) “ Share
Exchange Agreement ” has the meaning ascribed thereto in
the Recitals hereto.
(pp) “ Total Amount
Due to Publisher ” has the meaning ascribed thereto in
Section 6.1 hereof.
(qq) “
Unbillable ” means those billing records, including
Adjustments, which cannot be billed to a Foreign Customer
account.
(rr) “ WCAS Subs
” has the meaning set forth in the Recitals
hereto.
(ss) “ WCI
” has the meaning ascribed thereto in the Preamble
hereto.
(tt) “ White
Pages ” means directories comprised of or containing
alphabetical listings of subscribers having local exchange
telephone service in the applicable geographic area.
(uu) “ WIN
” has the meaning ascribed thereto in the Recitals
hereto.
(vv) “ 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 Foreign Customers in tangible media (e.g., paper
directories, CD-ROM), electronic media (e.g., Internet)
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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
”. Publishing Services excludes any services provided by L.M.
Berry under the L.M. Berry Contract.
Section 2.2 Billing
of Publishing Services . WCI agrees to: (i) bill Foreign
Customer accounts for amounts due to Publisher in respect of
Publishing Services; (ii) provide the other Billing and
Collection Services described herein; and (iii) remit to
Publisher the amounts received from Foreign Customers for such
Publishing Services less the Billing Cost and other payments due
from Publisher pursuant to this Agreement, all upon the terms and
subject to the conditions set forth herein. If any Billing Cost or
other payments due from Publisher pursuant to this Agreement remain
unpaid 30 days after such charges accrue due to insufficient
amounts received from Foreign Customers, Publisher agrees to pay
any such charges within 10 Business Days of written demand therefor
from WCI.
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 Foreign Customer
bill (including all collections and proceeds thereof) will continue
to be owned by Publisher, except to the extent of any 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 Foreign Customer 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.
Section 3.2 Format of
Bill . Except as otherwise provided herein, presentation of
Billing Transactions in the bill will be in WCI’s standard
format, as in effect from time to time, including, but not limited
to, size of paper, logos, bill format, type of Billing
Transactions, market messages and relationship to other sections
within the same bill. Bills will use the same stock of paper as
used in WCI’s standard bill format with WIN’s logo or
watermark printed thereon. Publisher will also be identified on
each bill. The charges for Billing Services cover only the costs of
Billing Transactions on a single page bill and do not cover the
cost of additional bill pages, bill inserts or other materials for
inclusion in a bill mailing.
Section 3.3 Bill
Mailing . For the purposes of this Agreement, if WCI prints a
bill that includes a Billing Transaction that complies with
Section 3.2, and deposits the bill with the United States
Postal Service, it will be deemed to have “billed” the
Billing Transaction contained on such bill.
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Section 3.4 Billing
Procedures . WCI shall bill each Foreign Customer for
Publishing Services (and taxes and/or late fees, to the extent such
taxes and/or late fees are to be paid by such Foreign Customer and
identified by Publisher) sold by Publisher to such Foreign Customer
or placed by Publisher on behalf of such Foreign Customer, 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 Foreign Customer 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 it determines that a
requested bill is “Unbillable.”
Section 3.5 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
Foreign Customer master filed records for all Publisher billing
records to such Foreign Customer. If Publisher requests WCI to bill
Foreign Customer on a basis other than monthly, WCI shall
accommodate such request for such additional charges as may be
mutually agreed by the parties.
Section 3.6 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 Foreign Customer 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 3.7
Collection Activities . All collection efforts with respect
to amounts owing from Foreign Customer 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 a Foreign Customer with respect to
Publishing Services (a) if WIN or its Affiliates would have
written off the account balances if such balances were owed by such
Foreign Customer 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 Foreign
Customers whose account balances have been written off in the
preceding period and for whom collection efforts have accordingly
ceased.
Section 3.8
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.
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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 terms and at such prices (each, a “ Developmental
Charge ”) as may be mutually agreed by the parties. All
Develo
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