Exhibit 10.24
SECOND AMENDMENT
TO
AGREEMENT FOR THE PROVISION OF
FIBER OPTIC SERVICES AND FACILITIES
THIS SECOND AMENDMENT TO AGREEMENT FOR THE PROVISION OF FIBER OPTIC
SERVICES AND FACILITIES (this "Second Amendment"), by and between MPX Systems,
Inc., a South Carolina corporation ("MPX"), and MCI Telecommunications
Corporation, a Delaware corporation ("MCI"), is made as of the date on which it
has been executed by both parties.
RECITALS
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A. MPX and SouthernNet, Inc. entered into that certain Agreement for the
Provision of Fiber Optic Services and Facilities in or around July 1986 (the
"Agreement")
B. Subsequent to the execution of the Agreement, all of the rights, assets
and obligations of SouthernNet, Inc. were purchased or otherwise assumed by
Telecom*USA.
C. In September 1990, all of the rights, assets and obligations of
Telecom*USA were purchased or otherwise assumed by MCI and MCI now holds the
rights previously held by SouthernNet in and under the Agreement.
D. MPX and MCI entered into a First Amendment to the Agreement, effective
as of May 8, 1992.
E. MPX and MCI now desire to further amend the Agreement in certain
respects pursuant to this Second Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, MPX and MCI agree as follows:
1. The first and second "WHEREAS" clauses on page 1 of the Agreement are
hereby deleted and replaced with the following:
"WHEREAS, MPX entered into certain agreements with Southern
Company Services, Inc. for itself and as agent for Georgia Power
Company (the "Utility Company") pursuant to which MPX obtained rights
to place fiber optic cable along certain transmission lines of the
Utility Company, and MPX is currently operating fiber optic
transmission systems in conjunction with the Utility Company along
such network (the "First Network").
WHEREAS, MPX entered into certain agreements with Interstate
FiberNet, Standard Telephone Company and Xxxx Telephone Company for the
joint construction of a fiber optic network and the operation by MPX
of certain fiber optic transmission systems on such network upon
completion of construction thereof (the "Second Network").
WHEREAS, MPX wishes to provide to MCI certain telecommunications
services on the First Network and the Second Network, and MCI wishes to
obtain such services from MPX, on the terms and conditions set forth in
this Agreement."
2. Section 1.1 of the Agreement is hereby deleted and replaced with the
following:
"1.1 MPX agrees to provide MCI with certain fiber optic
telecommunications services on the First Network between Hartwell,
Georgia and Atlanta, Georgia (the "Primary Route") and on the Second
Network between Hartwell, Georgia and Atlanta, Georgia (the "Diverse
Route). Specifically, MPX shall provide to MCI all of the capacity
within six (6) optical fibers along the Primary Route and within four
(4) optical fibers along the Diverse Route (collectively, the
"Capacity"), which Capacity shall consist of fiber optic transmission
systems configured into usable end-to-end systems to be made available
to MCI from points of presence or points of connection ("Points of
Presence") of MCI, as specified on Exhibit A attached hereto and made a
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part hereof (collectively, the "System"). Each Point of Presence shall
be located at a site in the city or other geographic location specified
on Exhibit A. The parties acknowledge and agree that the System shall
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initially be configured as two (2) diverse 3:1 OC-48 transmission
systems; one (1) on the Primary Route and one (1) on the Diverse Route.
The Primary Route and the Diverse Route are collectively referred to
herein as the "Route"."
3. Section 1.2 of the Agreement is hereby deleted and replaced with the
following:
"1.2 The parties understand and agree that, in addition to the
capacity within six (6) optical fibers along the Primary Route which
is being provided to MCI pursuant to this Agreement, MPX will provide
four (4) optical fibers along the Primary Route for joint use by
Interstate FiberNet, Standard Telephone Company and Xxxx Telephone
Company. Additionally, two (2) optical fibers along the Primary Route
shall be retained by the Utility Company for its internal
telecommunications needs. MPX acknowledges and agrees that no person or
entity, other than those described herein, shall be permitted to use
any fiber or capacity along the Primary Route for so long as this
Agreement remains in effect."
4. Sections 3.1, 3.2, 3.3 and 3.4 of the Agreement, as amended by the
First Amendment to the Agreement, are hereby deleted and replaced with the
following:
"3. Compensation. Subject to the terms hereof and as consideration
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for
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MPX providing the Capacity and the System to MCI pursuant hereto, MCI shall
pay to MPX an aggregate monthly charge of Two Hundred Ninety-Two Thousand
Four Hundred Sixty-Eight and 83/100 Dollars ($292,468.83). MCI's obligation
to pay such monthly charge shall begin on the Completion Date as defined in
Section 5 of this Agreement. MCI shall be invoiced by MPX every thirty (30)
days in advance of that particular month's service (e.g. January 1st
invoice for the month of January); provided, however, that the first
invoice shall be prorated and shall cover the period from the Completion
Date through the end of the next month (e.g., June 16 through July 31). MCI
shall pay each invoice within forty-five (45) days of the date of the
invoice or the date of MCI's receipt of the invoice, whichever is latest."
5. Section 4 of the Agreement is hereby deleted and replaced with the
following:
"4. Term. The term of this Agreement, as amended, shall be for a
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period of five (5) years beginning on the Completion Date as defined in
Section 5 of this Agreement (the "Original Term"). MCI shall have the
option to renew this Agreement for additional successive five (5) year
terms upon the same terms and conditions set forth herein. Such renewal
option(s) shall be exercised by the giving of written notice to MPX at
least ninety (90) days prior to the expiration of the then-current term.
Otherwise, this Agreement shall automatically renew on a month-to-month
basis upon the same terms and conditions set forth herein, unless
terminated by either party upon at least ninety (90) days prior written
notice to the other party. Each additional five (5) year renewal term or
monthly term is referred to herein as a "Renewal Term"; the Original Term
and any Renewal Terms are collectively referred to herein as the "Term"."
6. Section 5 of the Agreement is hereby deleted and replaced with the
following:
"5. Completion. Upon completion, in accordance with Section 1 and
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Section 6 hereof, of each portion of the System identified in Section III
of Exhibit A, MPX shall provide MCI written notice of said completion,
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together with copies of all tests that were used by MPX to determine that
such portion of the System was complete and met all applicable technical
standards. Within fifteen (15) days after the date of each such notice from
MPX, MCI shall notify MPX in writing whether MCI agrees that such portion
of the System has been so completed, specifying any incompleteness which
MCI has identified. The date of the notice from MCI to MPX that the last
remaining portion of the System identified in Section III of Exhibit A has
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been completed shall be deemed to be the "Completion Date" hereunder.
Notwithstanding anything in this Agreement to the contrary, MCI shall have
the right to terminate this Agreement upon written notice to MPX, without
liability or further obligation hereunder, if any portion of the System
identified in Section III of Exhibit A is not completed in accordance with
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this Agreement, and if MCI has not given notice to MPX agreeing that
such portion of the System is so completed, on or before the applicable
dates specified in Section III of Exhibit A."
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7. The heading of Section 7 of the Agreement is hereby amended to read:
"Restoration in the Event of Outages; Credits; Termination."
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8. The last sentence of Section 7 of the Agreement is hereby deleted and
replaced with the following:
"In any event, MCI shall receive a credit against succeeding invoices
under Section 3 of this Agreement in an amount equal to the prorated
value of all such interrupted services during the preceding calendar
month (e.g., if service on the Diverse Route is interrupted for an
aggregate of 2 days in a calendar month, MCI shall receive a credit
against the next month's invoice in an amount equal to one half of the
monthly fees due under Section 3 hereof, divided by the number of days
in the month during which the interruption occurred, multiplied by 2).
Furthermore, if an interruption occurs on more than five (5) days
during any thirty (30) day period, MCI shall have the right, at its
option, to either (a) receive a credit against amounts owing under the
next month's invoice as set forth in the immediately preceding
sentence, or (b) terminate this Agreement upon written notice to MPX,
without liability or further obligation hereunder."
9. The words "and shall not be subject to revenue sharing pursuant to
Section 3" are hereby deleted from the second sentence of the second paragraph
of Section 8 of the Agreement.
10. The following is hereby added at the end of the last sentence of
Section 10 of the Agreement:
";and, provided further in any such event, that MCI shall receive a
credit against succeeding invoices under Section 3 of this Agreement in
an amount equal to the prorated value of the System that was not so
restored or replaced during the preceding calendar month (e.g., if MPX
is unable to restore or replace service along the Diverse Route for 10
days in a calendar month, MCI shall receive a credit against the next
month's invoice in an amount equal to one half of the monthly fees due
under Section 3 hereof, divided by the number of days in the affected
month, multiplied by 10)."
11. Section 16 of the Agreement is hereby deleted and replaced with the
following:
"16. Dispute Resolution. Any dispute arising out of or related
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to this Agreement which cannot be resolved by negotiation shall be
settled by binding arbitration in accordance with the
J.A.M.S./ENDISPUTE Arbitration Rules and
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Procedures ("Endispute Rules"). The costs of arbitration, including the
fees and expenses of the arbitrator, shall be shared equally by the
parties unless the arbitration award provides otherwise. Each party
shall bear the cost of preparing and presenting its case. The parties
agree that this provision and the arbitrator's authority to grant
relief shall be subject to the United States Arbitration Act, 9 U.S.C.
1-16 et seq. ("USAA"), the provisions of this Agreement, and the ABA-
AAA Code of Ethics for Arbitrators in Commercial Disputes. MPX agrees
and confirms that the System to be provided to MCI pursuant to this
Agreement is unique, and MPX accordingly agrees that the arbitrator
shall have the authority, in addition to any other remedies which may
be awarded hereunder, to order that all obligations, undertakings,
agreements, covenants and other provisions of this Agreement be
specifically performed by MPX. The parties agree that the arbitrator
shall have no power or authority to make awards or issue orders of any
kind except as expressly permitted by this Agreement, and in no event
shall the arbitrator have the authority to make any award that provides
for punitive or exemplary damages. The arbitrator's decision shall
follow the plain meaning of the relevant documents and shall be final
and binding. The award may be confirmed and enforced in any court of
competent jurisdiction. All post-award proceedings shall be governed by
the USAA."
12. The words "or transmitted by telegraph" in the first paragraph of
Section 21 of the Agreement are hereby deleted and replaced with the following:
"or by commercial overnight delivery service, or transmitted by
facsimile"
13. Section 21(a) of the Agreement is hereby deleted and replaced with the
following:
"(a): If to MPX: MPX Systems, Inc.
Attention: Xxx X. Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
Fax: (000) 000-0000"
14. Section 21(b) of the Agreement, as amended by the First Amendment to
the Agreement, is hereby deleted and replaced with the following:
"(b) If to MCI: MCI Telecommunications Corporation
Contracts Management, Dept. 1103
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
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MCI Telecommunications Corporation
Office of General Counsel - Network and Facilities
Department 0598
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000"
15. The last sentence of Section 21 of the Agreement is hereby deleted and
replaced with the following:
"Each notice, demand, request, approval or other communication sent
hereunder shall be deemed sufficiently delivered, served, sent or
received for all purposes on the date of return receipt acknowledgment
(in the case of notices sent via U.S. Mail), or on the next day after
the date the notice was sent (in the case of notices sent by either
overnight delivery service or by facsimile) or at such time as
delivery is refused by the addressee upon presentation."
16. Exhibit A and Exhibit B to the Agreement are hereby deleted and
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replaced with Exhibit A and Exhibit B attached hereto.
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17. Exhibit X-0, Xxxxxxx X-0 and Exhibit C to the Agreement are hereby
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deleted.
18. This Second Amendment shall be effective on and as of the date and
year last written below. Notwithstanding the foregoing or any other provision of
this Second Amendment to the contrary, the terms of the Agreement, as amended by
the First Amendment to the Agreement (and without taking into account the effect
of this Second Amendment), shall continue to govern the parties until the
Completion Date with respect to the capacity currently being provided by MPX to
MCI on the Primary Route pursuant to the existing 4:1 OC-48 transmission system.
Except as set forth in the immediately preceding sentence, the terms of this
Second Amendment shall supersede any conflicting terms of the Agreement or the
First Amendment to the Agreement. The terms of the Agreement not expressly
amended herein or in the First Amendment to the Agreement shall remain in full
force and effect.
19. Any capitalized terms used but not defined herein shall have the
meanings given to such terms in the Agreement or the First Amendment to the
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered on their behalf as of the day and year last written
below.
MPX SYSTEMS,INC. MCI TELECOMMUNICATIONS
CORPORATION
By: /s/ M. I. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxxx
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Title: Executive Vice President Title: Vice President, Network Engineering
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Date: January 30, 1996 Date: 1/16/96
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ATTEST: ATTEST:
By: Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Name: /s/ Xxxxxxx X. Xxxxxxxxx Name: Xxxx Xxxxxxxx
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Title: Assistant Secretary Title: Assistant Secretary
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[Corporate Seal] [Corporate Seal]
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EXHIBIT A
I. MCI POINTS OF PRESENCE:
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1. Hartwell, Georgia 000 X. Xxxxxx Xxxxxx
0. Xxxxxxx, Xxxxxxx 00 Xxxx Xxxxx
II. NOTES:
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1. A portion of the Primary Route located between 00 Xxxx Xxxxx and the
Doraville Junction shall consist of twenty-four (24), rather than
twelve (12), optical fibers, with the additional twelve (12) fibers
falling under the provisions of Section 8 of the Agreement.
III. COMPLETION OF SYSTEM:
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Portion of System Date
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Two (2) working channels and 6/30/96
one (1) spare OC-48 channel on
the Diverse Route.
One (1) additional working OC-48 channel 8/31/96
on the Diverse Route.
Three (3) working channels and one (1) spare 8/31/96
OC-48 channel on the Primary Route.
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