EXHIBIT 10.12
MASTER CAPACITY AGREEMENT
BETWEEN
MCI TELECOMMUNICATIONS CORPORATION
AND
TIME WARNER AxS
TABLE OF CONTENTS
IA. ASSIGNMENT AND ASSUMPTION BY AFFILIATES ....................... - 2 -
IB. DEFINITIONS ................................................... - 3 -
II. TERM AND TERMINATION .......................................... - 5 -
III. CAPACITY AVAILABILITY ......................................... - 6 -
IV. PAYMENT FOR CAPACITY .......................................... - 7 -
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE OF EQUIPMENT ....... - 10 -
VI. CAPACITY SPECIFICATIONS, MAINTENANCE, REPAIR AND
TESTING ....................................................... - 12 -
VII. COLLOCATION OF EQUIPMENT ...................................... - 12 -
VIII. CAPACITY INTERRUPTION, LIMITATIONS OF WARRANTY AND
DAMAGES ....................................................... - 14 -
IX. INDEMNIFICATION ............................................... - 15 -
X. DEFAULT ....................................................... - 16 -
XI. INFRINGEMENT .................................................. - 17 -
XII. REQUIRED RIGHTS ............................................... - 17 -
XIII. FORCE MAJEURE ................................................. - 18 -
XIV. TAXES ......................................................... - 18 -
XV. NOTICES ....................................................... - 19 -
XVI. CONFIDENTIALITY ............................................... - 20 -
XVII. WAIVER ........................................................ - 20 -
XVIII. GOVERNING LAW ................................................. - 20 -
XIX. ASSIGNMENT .................................................... - 20 -
XX. NON-DISCLOSURE OF COMMUNICATIONS .............................. - 21 -
XXI. NON-EXCLUSIVE ARRANGEMENT ..................................... - 21 -
XXII. INSURANCE AND LIABILITY ....................................... - 21 -
XXIII. AUTHORITY ..................................................... - 22 -
XXIV. GENERAL PROVISIONS ............................................ - 22 -
XXV. ARBITRATION ................................................... - 23 -
XXVI. ENTIRE AGREEMENT .............................................. - 24 -
EXHIBIT A TECHNICAL SPECIFICATIONS
EXHIBIT B SERVICE AGREEMENT
EXHIBIT C BUILDING LIST
EXHIBIT D REQUIREMENTS FOR AUTOMATED INTERFACE WITH MCI
EXHIBIT E PRICING
EXHIBIT F CONFIDENTIALITY AGREEMENT
EXHIBIT G PERFORMANCE AND MAINTENANCE
EXHIBIT H PROVIDER RESPONSIBILITIES AND SYSTEM CRITERIA
MASTER CAPACITY AGREEMENT
THIS AGREEMENT is made and entered into as of the 12th day of September
1994, by and between MCI Telecommunications Corporation, a Delaware corporation,
having an office at 0000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000
(hereinafter referred to as "MCI"), and Time Warner AxS, a Delaware general
partnership, having an office at 000 Xxxxxxxxx Xxxxx, Xxxx, Xxxxxxxxx, XX 00000
(hereinafter referred to as "Provider")
RECITALS
WHEREAS, Provider is affiliated with a series of limited partnerships or
other entities, which own and/or operate communications facilities in various
metropolitan areas and constitute Affiliates (as defined below);
WHEREAS, Provider, through Affiliates, has or will have a communication
network in the metropolitan area(s) identified herein with which Provider has or
will have the capability to furnish special access services to MCI, as MCI, in
its sole discretion, may require for the purpose of fulfilling certain
interconnection requirements for its customers;
WHEREAS, Provider and MCI have entered into this Agreement for the purpose
of setting forth those terms and conditions under which Provider's Affiliates
will furnish MCI with requested interconnection services;
WHEREAS, Provider and MCI also agree that they may enter into separate
capacity agreements (hereinafter referred to collectively or singly as the
"Service Agreement") for each MCI circuit requirement not otherwise available to
MCI under the procedures set forth in this Agreement which Service Agreement
shall incorporate the terms, conditions and covenants of this Agreement and
shall also set forth the terms and provisions unique to each such circuit
requirement; and
WHEREAS, MCI and Provider acknowledge and agree that the services to be
provided hereunder shall be provided by the Affiliates in the respective
territories in which they operate pursuant to an assignment of rights and
delegation of obligations hereunder as described in Article IA hereof.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and in consideration of the covenants and agreements contained
in any Service Agreement, the parties hereto hereby agree as follows:
IA. ASSIGNMENT AND ASSUMPTION BY AFFILIATES
1A.1 Provider shall designate, from time to time, its Affiliates
that own and/or operate telecommunications facilities in various metropolitan
areas to provide Capacity and services under this Agreement. Such designation
shall constitute an assignment and assumption of all of Provider's rights and
responsibilities related to the provision of such specific Capacity (including
without limitation the responsibility to provide and maintain Capacity in
accordance with the specifications set forth in this Agreement, the right to
collocate equipment and the right to receive payment therefor) and no other
rights or responsibilities under this Agreement; provided that Provider shall
invoice for services rendered and may exercise and enforce other rights on
behalf of such Affiliates. Notwithstanding such assignment and assumption,
Provider shall manage the ASR and Service Agreement acceptance process, as set
forth in Article III, on behalf of its Affiliates. Provider and all such
Affiliates shall be deemed to be a single entity for purposes of pricing under
this Agreement (Exhibit E). All references to "Provider" throughout this
Agreement shall be interpreted to apply to "Affiliates" if in context and
consistent with the guidelines set forth in this Article IA.
1A.2 Provider shall only be jointly and severally liable for any
monetary obligations. Provider shall not be liable for any obligations of any
Partly Owned Affiliate, and MCI hereby releases Provider from and agrees to look
only to each Partly Owned Affiliate for payment and performance of any of its
respective obligations under this Agreement (including liability credits under
Article VIII).
1A.3 MCI shall be deemed to have approved without further action
under this Agreement any such assignment to and assumption by a Wholly Owned
Affiliate. Prior to the first such assignment to and assumption by a Partly
Owned Affiliate, Provider shall notify MCI of the identity of such Partly Owned
Affiliate and shall provide MCI, within a reasonable time, with such other
information on the Partly Owned Affiliate, as MCI shall reasonably request. Upon
notification by Provider, MCI may withhold its acceptance of an assignment to a
Partly Owned Affiliate in its sole discretion. If MCI accepts the designation
and assignment to such Partly Owned Affiliate, then Provider shall be entitled
to assign rights and delegate obligations under this Agreement to such Partly
Owned Affiliate for Capacity requested by MCI. Upon MCI's acceptance of the
assignment and delegation, the acceptance shall
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remain in effect for all subsequent assignments and assumptions by such Partly
Owned Affiliates until MCI notifies Provider in writing at least ten (10) days
in advance of its desire to terminate the MCI assignment approval. No change in
the ownership status of an Affiliate shall be effective for purposes of this
Agreement unless and until Provider has provided ten (10) days prior written
notice of such change to MCI (and, if required in this paragraph 1.A.3, obtained
the consent of MCI), or shall affect the liability of Provider for obligations
of an Affiliate incurred prior to the effective date of such change of status.
No withdrawal of designation by Provider, or approval by MCI, of a Partly Owned
Affiliate shall affect any ASR or Service Agreement then in effect that had been
assigned to and assumed by such Partly Owned Affiliate prior to the effective
date of such withdrawal of designation or approval.
1A.4 To the extent set forth in paragraph 1A.2, no Affiliate shall
be jointly and severally liable for any obligation of any other Affiliate or of
Provider under this Agreement. With regard to Articles X, XII and XIII, MCI's
rights to terminate this entire Agreement as specified in Articles X, XII and
XIII shall be deemed to be limited to (i) all ASRs and Service Agreements
assigned to Wholly Owned Affiliates, with respect to any default by a Wholly
Owned Affiliate; and (ii) all ASRs and Service Agreement assigned to a
particular Partly Owned Affiliate, with respect to a default by such Partly
Owned Affiliate.
1A.5 MCI hereby accepts and approves the assignment of this
Agreement to the following Partly Owned Affiliates: Charlotte AxS, L.P., Kansas
City Fiber Network, L.P., and MetroComm AxS, L.P.
IB. DEFINITIONS
1B.1 "Affiliate" shall mean a Wholly Owned Affiliate or a Partly
Owned Affiliate.
1B.2 "Capacity" shall mean dedicated telecommunications Circuits (as
hereinafter defined) Provider furnishes to MCI between Demarcation Points under
the terms of this Agreement.
1B.3 "Circuit" shall mean any individual XX-0, XX-0 or DS-3 or other
data transmission service Provider furnishes to MCI under the terms of this
Agreement.
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1B.4 "Confidential Information" shall mean any materials defined as
confidential or proprietary in any Confidentiality Agreement entered into
between the parties, and: a) all requests for service quotations for Capacity
and the contents thereof, including, but not limited to, the identity and
location of MCI's Customers (as hereinafter defined); b) all responses to
requests for quotations and Capacity, and the contents thereof, which Provider
submits to MCI; and c) all information one party provides to the other, if the
disclosing party clearly identifies such information as being confidential or
proprietary prior to disclosure or which is identified as such to the receiving
party, in writing, within ten (10) days after disclosure.
1B.5 "Customer" shall mean any corporation, company, entity or
person to which MCI furnishes Capacity or service, either under tariff or
contractual arrangement.
1B.6 "Demarcation Point" shall mean the point of interconnection
between the Network (as hereinafter defined) and MCI's telecommunications
equipment, as well as the interface between the Provider's telecommunications
facilities and Customer's telecommunications facilities. Provider shall be
responsible for all equipment required for provision of service between the
Network and a Customer's telecommunications equipment.
1B.7 "Interconnection Facilities" shall mean all local access
facilities if any between a Demarcation Point and Customer's telecommunications
equipment.
1B.8 "LEC" shall mean any company responsible for the provisioning
of local access lines owned and operated by a Regional Xxxx Operating Company or
an independent telephone company which has historically held the rights to
provide such services in their franchised territory.
1B.9 "MCI" shall mean MCI Telecommunications Corporation, MCI
Communications Corporation, and all subsidiaries, affiliates, successors and
assigns.
1B.10 "Network" shall mean any telecommunications links utilized by
or necessary to Provider in order to furnish the Capacity.
1B.11 "Partly Owned Affiliate" shall mean a partnership, corporation
or other entity that is under partial common control with Provider, that has
agreed to accept and assume the rights and responsibilities of providing
Capacity and related services hereunder in a specific territory and that has
been accepted by MCI as a Partly Owned Affiliate in accordance with Article IA.
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1B.12 "Provider" shall mean Time Warner AxS or its Affiliates as set
forth in Article IA above.
1B.13 "SECABS" shall mean Small Exchange Carrier Access Billing
System as defined by Bellcore Special Publication Number SROPT-001-856.
1B.14 "Wholly Owned Affiliate " shall mean any person or entity for
which Provider is the sole general partner and that is under 100% common control
with Provider.
Unless otherwise expressly defined, all other terms used in this
Agreement shall be accorded their usual and customary meanings.
II. TERM AND TERMINATION
2.1 The term of this Agreement shall commence as of the date hereof
and shall continue either: (a) for a period of five (5) years, or (b) until
final termination of any active Service Agreement or ASR (as hereinafter
defined) entered into in accordance with this Agreement, whichever is later.
2.2 The initial term of each ASR or Service Agreement shall commence
on the date upon which the Capacity described in the ASR or Service Agreement is
available for use. The initial term of the ASR or Service Agreement shall expire
at the end of the period set forth in the ASR or Service Agreement.
2.3 MCI shall have the right, in its sole discretion, to cancel any
ASR or Service Agreement twenty-four (24) hours after written notice to
Provider. Unless the ASR or Service Agreement is cancelled for breach as
provided for elsewhere in the Agreement, MCI shall remain liable for any
termination liabilities associated with the cancelled ASR or Service Agreement.
In the event MCI exercises its right to cancel any ASR or Service Agreement, the
terms and conditions of this Agreement shall nevertheless remain in effect until
termination of the last active ASR or Service Agreement.
2.4 Upon termination of this Agreement, all rights of MCI to the
Capacity shall cease and Provider shall have no further obligations to MCI with
respect to furnishing the Capacity.
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III. CAPACITY AVAILABILITY
3.1 Provider shall make available to MCI, in response to any
electronically transmitted requests from MCI, Capacity as specifically provided
for in any ASR or Service Agreement which may be entered into by the parties,
subject to the terms of this Agreement. A sample form of the Service Agreement
is attached hereto as Exhibit B.
3.2 The metropolitan areas and building locations in which
Provider's Network is currently able to furnish Capacity to MCI are listed in
Exhibit C attached hereto and made a part hereof. Provider shall have the right,
at any time and from time to time during the term of this Agreement, to provide
MCI with a revised list of metropolitan areas and building locations, in a
format acceptable to MCI. Upon receipt by MCI, any such revised list shall be
automatically attached hereto as an amended Exhibit C.
3.3 To order Capacity to be furnished at a building location
included in Exhibit C, MCI shall electronically submit an Access Service Request
(herein referred to as "ASR") to Provider, including the requested date of
service. Within five (5) business days after receipt of the ASR, Provider shall
electronically issue a Firm Order Commitment (hereinafter referred to as "FOC")
to MCI. MCI shall have the right, in its sole discretion, to cancel the ASR,
without incurring any termination liability, at any time prior to receiving the
FOC or in the event the Capacity is not provided by the in-service date set
forth in the FOC, unless the delay in providing the service is directly
attributable to MCI or its Customer for the requested Capacity. In the event the
Capacity is not provided by the in-service date set forth in the FOC, and the
delay in providing the service is not directly attributable to MCI or its
Customer, and MCI chooses not to cancel the ASR, Provider will waive
non-recurring charges associated with the Capacity ordered. Under no
circumstances shall MCI be billed for use of a circuit prior to installation.
The requirements for electronically issuing an ASR and an FOC are further
defined in Exhibit D attached hereto and made a part hereof. For the first
ninety (90) days of the term of this Agreement, the parties may continue to use
Provider's current method for receiving service orders and returning order
commitments. Provider shall use its best efforts to transition its access
service ordering system to conform to the requirements set forth in Exhibit D
within ninety (90) days of the date of this Agreement; provided, however, that
Provider must transition its access service ordering system no later than one
hundred eighty (180) days after the date of this Agreement.
3.4 To order Capacity to be furnished at a location not included in
Exhibit C, MCI shall submit a service request to Provider, including a requested
date of service. Within five (5) business days after receipt of the service
request, if Provider will be able to furnish such Capacity, Provider shall issue
a
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service request confirmation to MCI, along with an estimated date on which the
Capacity can be made available to MCI. Within ten (10) business days after
receipt of the service request confirmation, MCI shall have the right, in its
sole discretion, to either: (a) notify Provider that the availability date is
not acceptable and cancel the service request at no cost to MCI or request
Provider to submit a new service request confirmation, or (b) notify Provider
that the availability date is acceptable. In the event MCI chooses option (a)
and requests Provider to submit a new service request confirmation, the
procedures and the time periods for responses set forth in this paragraph 3.4
shall again be applicable to MCI's request. In the event MCI chooses option (b),
MCI shall submit an ASR to Provider which includes the estimated date from the
service request confirmation. Within five (5) business days after receipt of the
ASR, Provider will issue a FOC to MCI and shall immediately begin making all
arrangements necessary to insure that the Capacity will be available for MCI's
use by the estimated availability date. If the terms or pricing for Capacity
differ from those stated in Exhibit E, the parties shall execute a Service
Agreement for the Capacity within twenty (20) days from the date Provider
notifies MCI of the actual availability date for the Capacity; provided,
however, that MCI shall have the right, in its sole discretion, to cancel the
Service Agreement, without incurring any termination liability, in the event the
Capacity is not furnished within thirty (30) days after the in-service date set
forth in the Service Agreement, provided that neither MCI nor its Customer is
the direct cause of the delay. Notwithstanding the aforementioned, in the event
that a Customer cancels its requirement for Capacity after the in-service date
has passed, but before the Capacity has been furnished by Provider and neither
MCI nor its Customer is the direct cause of the delay, MCI shall have the right,
in its sole discretion, to cancel the accompanying Service Agreement for that
Capacity without incurring any termination liability.
IV. PAYMENT FOR CAPACITY
4.1 The monthly recurring charges for the Capacity shall be at the
rates set forth in Exhibit E, attached hereto and made a part hereof, net of any
discounts provided for in Exhibit E, and shall be payable by MCI by the next
xxxx date (same day in the following month as the xxxx date) in immediately
available funds. If such payment due date would cause payment to be due on a
Saturday, Sunday, or Legal Holiday, payment for such bills would be due as
follows: if such payment due date falls on a Sunday or on a Legal Holiday, the
payment due date shall be the first non-Holiday date following such Sunday or
Legal Holiday. If such payment due date falls on a Saturday or on a Legal
Holiday which is observed on Tuesday, Wednesday, Thursday, or Friday, the
payment due date shall be the last non-Holiday day preceding such Saturday or
Legal Holiday. If any portion of the payment is received by the
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Provider after the payment due date as set forth above, or if any portion of the
payment is received by the Provider in funds which are not immediately available
to the Provider, then a late payment charge shall be due the Provider. The late
payment charge will be applied to the portion of the payment not received by the
payment due date. The late payment charge shall be 1% per month (.000329 per
day) or 12% annually. This charge will be applied for the number of days from
the payment due date to and including the date MCI actually makes the payment to
the Provider. However, if for reasons outside the control of MCI (including, but
not limited to, a computer system failure), a payment is delayed but received
within two weeks of the payment due date, late payment charges will be waived.
The charges for Capacity will begin to accrue on the date the Capacity is
available for use. Provider will submit monthly invoices as directed by MCI,
which invoice(s) will include all the Capacity furnished to MCI as of the date
of the invoice(s). The invoice(s) submitted by Provider to MCI shall be prepared
utilizing the SECABS billing guidelines, and must be rendered to MCI within
fifteen (15) days after the close of the billing period. Under no circumstances
shall MCI be liable for any charges which are not billed to MCI within ninety
(90) days after the charges were initially incurred. For the first ninety (90)
days of the term of this Agreement, Provider may continue to use its current
standard billing procedures. Provider must transition its billing system to the
SECABS billing system within ninety (90) days of the date of this Agreement.
4.2 The non-recurring fee set forth in Exhibit E will be included in
the first monthly invoice submitted to MCI after Provider has furnished the
Capacity specified in the applicable FOC.
4.3 MCI shall have the right to dispute any charges for which it is
invoiced by Provider. In the event MCI disputes any such invoice or portion
thereof, MCI shall promptly pay that portion of the invoice which is undisputed.
MCI shall have the right to withhold payment of any disputed amount, provided
that MCI gives Provider notice of the amount and reason for the dispute in
accordance with the provisions of paragraph 25.1 herein. All claims must be
submitted within * of receipt of billing for those services. If a claim
is not submitted as stated above, MCI waives all rights to filing a claim
thereafter. If the dispute is resolved in favor of MCI and MCI has withheld the
disputed amount, no interest credits or charges will apply. If the dispute is
resolved in favor of MCI and MCI has paid the disputed amount, MCI will receive
an interest credit from the Provider for the disputed amount times a late
payment factor as set forth in paragraph 4.1 herein. In the event the Provider
agrees to refund a credit by check or wire transfer, interest will be applied up
to and including the date of issuance for either the check or wire transfer. If
the dispute is resolved in the favor of the Provider and MCI has paid the
disputed amount on or before the payment due
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date, no interest credit or charges will apply. If the dispute is resolved in
the favor of the Provider and MCI has withheld the disputed amount, any payments
withheld pending settlement of the disputed amount will be subject to the late
payment charge as set forth in paragraph 4.1 herein; however, interest charges
shall not apply to any period of time required by Provider to research and
validate invoice disputes. All invoicing disputes that cannot be resolved to the
mutual satisfaction of Provider and MCI shall be resolved in accordance with the
provisions of Article XXV herein. Notwithstanding any provisions contained in
this Agreement to the contrary, MCI's failure to pay any disputed invoice or
portion thereof shall not be considered a breach of the terms and provisions of
this Agreement.
4.4 The rates for furnishing the Capacity to MCI throughout the term
of this Agreement are set forth in Exhibit E. Under no circumstances during the
term of this agreement shall the price MCI pays to Provider for Capacity be more
than 90% of the tariffed prices MCI can obtain from the LEC serving the same
locations as Provider (Provider mileage for individual Circuits shall conform to
the mileage component assigned to the individual Circuit by the LEC) assuming
the LEC is used for all MCI access requirements (MCI LEC Price). In the event of
a LEC tariff change, both parties will work together to establish new pricing.
Provider shall modify the applicable rates in Exhibit E within seventy-five (75)
days of such LEC tariff change. This change will be effective on the date of the
LEC tariff change.
In the event of changes in the rates in Exhibit E resulting from changes in the
factors used by MCI to calculate the MCI LEC Price, the changes to the rates in
Exhibit E will be effective on the date MCI notifies Provider of the change in
calculation of the MCI LEC Price.
Notwithstanding the provisions of the foregoing sentence, however, in the event
Provider issues a revised schedule of rates resulting in a decrease in pricing,
all Capacity furnished to MCI by Provider pursuant to this Agreement shall be
subject to such decreased pricing schedule.
4.5 * In the event Provider * then Provider will * . As used in
the paragraph 4.5, the phrase "prices, terms and conditions" and * shall include
considerations of * and any other contract term which * may not be construed
as violations of this paragraph 4.5.
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If it is determined that Provider has not fully complied with the terms of this
Paragraph 4.5, Provider shall * .
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE OF EQUIPMENT
5.1 Each Affiliate providing Capacity in any territory warrants and
represents that it is authorized by all applicable federal, state and local
laws, regulations and ordinances to furnish such Capacity and hereby agrees to
indemnify and hold harmless MCI and MCI's Customers from and against any and all
loss, liability, damage and expense (including reasonable attorneys' fees) for
any demand, claim, suit or judgment against MCI and/or MCI's Customers
attributable to such Affiliate not having or losing such authorizations.
5.2 MCI warrants and represents that is authorized by all applicable
federal, state and local laws, regulations and ordinances to enter into this
Agreement and perform its obligations hereunder and hereby agrees to indemnify
and hold harmless Provider from and against any and all loss, liability, damage
and expense (including reasonable attorney's fees) for any demand, claim, suit
or judgment against Provider attributable to MCI not having or losing such
authorizations.
5.3 Each Affiliate providing Capacity in any territory represents
and warrants to MCI that it has authority to do business in the areas in which
such Affiliate furnishes Capacity to MCI as set forth in Exhibit C and the right
to furnish the Capacity to MCI, and that it is an entity, duly organized,
validly existing and in good standing under the laws of the state of its origin,
with all requisite power to enter into and perform its obligations under this
Agreement in accordance with its terms.
5.4 MCI represents and warrants that it is an entity, duly
organized, validly existing and in good standing under the laws of the state of
its origin, with all requisite power to enter into and perform its obligations
under this Agreement in accordance with its terms.
5.5 Each Affiliate represents and warrants to MCI that the Capacity
furnished by it under the terms of this Agreement and any Service Agreement
shall be designed, produced, installed, provided and maintained in conformance
and compliance with applicable federal, state and local laws, administrative and
regulatory requirements and any other authorities having jurisdiction over the
subject matter of this Agreement. Provider
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or its Affiliates shall be responsible for applying for, obtaining and
maintaining all registrations and certifications which may be required by such
authorities.
5.6 Each Affiliate represents and warrants to MCI that it will use
its best efforts to ensure the Capacity it furnishes to MCI shall meet the
specifications contained herein as defined in Exhibit A and H except for
scheduled maintenance (as described in Exhibit G). Outages resulting from
scheduled maintenance shall not exceed one (1) cumulative hour per consecutive
thirty (30) day period with respect to any single Circuit.
5.7 Provider or its Affiliates shall obtain any authorizations and
approvals necessary to furnish the Capacity to MCI. In the event of a conflict
between the terms of this Agreement and/or any Service Agreement and any tariff
which Provider's Affiliates or MCI may file pursuant to any federal or state
law, rule or regulation, the terms of any such tariff shall control unless
otherwise exempted by statue; provided, however, that to the extent lawfully
required, each Affiliate represents and warrants that there are no such
conflicts on the date hereof regarding services to be provided by it, and
covenants it will permit no such conflicts unless the new terms are expressly
agreed to by MCI. Notwithstanding the termination provisions set forth in
paragraph 2.3 herein, if the provisions of any tariff alter the terms and
conditions of this Agreement and/or any Service Agreement materially and
adversely to either party, the affected party may terminate this Agreement
and/or any affected Service Agreement(s) upon thirty (30) days notice to the
other party, without incurring any termination liability, for a period of one
hundred eighty (180) days after written notice of such tariff change.
5.8 Each party agrees that neither its equipment nor the Circuit(s)
associated with the Capacity shall interfere with or impair any other services
or facilities furnished by the other party including, but not limited to, damage
to the other's plant, unlawful impairment of the privacy of any communications
transmitted over the Capacity, or creation of a hazard to any employees or
customers or to the public. If a party determines that any such impairment or
interference exists, such party shall provide written notice to the other. The
aforementioned notice shall state, if known, the nature and cause of the
interference or impairment in sufficient detail to allow the damaging party to
take immediate remedial measures including, but not limited to, blockage of the
other party's network associated with the Capacity as provided for in paragraph
6.5 herein. If additional equipment is required because of the damaging party's
misuse of the Capacity, the damaging party shall bear the cost thereof. The
damaged party shall have the right to inspect any such equipment to determine
its compliance and compatibility with the damaged party's network.
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VI. CAPACITY SPECIFICATIONS, MAINTENANCE, REPAIR AND TESTING
6.1 Provider represents, covenants and warrants to MCI that it
shall, at all times, comply with the provisions of Exhibits G and H attached
hereto and made a part hereof.
6.2 Provider warrants, covenants and represents that the Capacity it
furnishes to MCI shall meet the technical specifications set forth in Exhibit A
(hereinafter referred to as the "Specifications")
6.3 Provider shall be responsible for maintaining and repairing the
Network in accordance with the procedures set forth in Exhibit G. MCI is
prohibited from performing any maintenance and repair on the Network, other than
set forth expressly in Exhibit G, without the express written authorization of
Provider. Upon request from MCI, Provider shall furnish, install, test, maintain
and repair any Interconnection Facilities in a Customer location, at Provider's
sole cost and expense, in accordance with reasonable industry standards,
including, but not limited to, those procedures set forth in paragraph 2.9 of
Exhibit G.
6.4 Provider shall report, investigate and correct any failure,
interruption or impairment of the Capacity in accordance with the procedures set
forth in Exhibit G.
6.5 The parties agree that if either party, in its sole discretion,
determines that any emergency action is necessary to protect its own
telecommunications network, that party may block any signals the other party may
be transmitting over the blocking party's network. In the event MCI blocks
Provider's Circuit(s) and/or Capacity because such Circuit(s) and/or Capacity do
not meet the parameters of the specifications set forth in Exhibit A, MCI shall
be relieved of all obligations to make payments for charges relating to such
Circuit(s) and/or Capacity until such time as the affected Circuit(s) and/or
Capacity meet the Specifications. Each party agrees that it will notify the
other, as soon as practicable, when a blockage occurs and both parties agree to
work diligently towards restoration of the affected Circuits and/or Capacity.
Neither party shall have any obligation to the other party for any claim,
judgment or liability resulting from such blockage, except as otherwise provided
in this paragraph 6.5.
VII. COLLOCATION OF EQUIPMENT
7.1 Subject to MCI's approval, which approval may be withheld in
MCI's sole discretion, Provider shall be permitted to install its equipment at
MCI locations provided that such equipment shall be used solely for the purpose
of providing access facilities
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to interconnect the Capacity and, if applicable, to interconnect the services
acquired by Customer directly from Provider, to MCI's telecommunications
network. Any equipment installed by Provider must be MCI lab-approved. Any
equipment Provider is permitted to install at an MCI location shall be
maintained and repaired by Provider. MCI will allow Provider access to its
equipment for the purpose of maintenance and repair of equipment, and testing
the Circuits and the Capacity, but only in accordance with procedures which MCI,
in its sole discretion, deems to be appropriate, including, but not limited to,
those procedures set forth in paragraph 2.9 of Exhibit G. For each MCI location
in the metropolitan areas set forth in Exhibit C, the parties shall prepare a
detailed scope of work, including a designation of the space at the MCI location
within which Provider will install its equipment and a list of the equipment
Provider intends to install, which scope of work as amended from time to time
shall be attached to this Agreement as a part of Exhibit C. Subject to all
required approvals and the availability of sufficient space, MCI will provide,
at MCI's cost, reasonable space, power and environmental conditions including,
but not limited to, equipment space, battery space and conduit space, air
conditioning and fire protection, as necessary to facilitate said
interconnection.
7.2 The parties agree that if Provider installs equipment at MCI
locations in accordance with paragraph 7.1 herein, Provider will make the
equipment available as a bailment and title to the equipment will remain with
Provider. MCI shall have no right, title or interest therein. MCI will keep
Provider's equipment free and clear of all liens, security interest and
encumbrances. MCI shall have the right to relocate Provider's equipment for
MCI's convenience due to MCI's networking requirements; provided however, MCI
will provide Provider with as much notice as practicable under the circumstances
prior to relocating Provider's equipment. If the schedule and operating
conditions merits it, in MCI's sole discretion, MCI may allow Provider to
coordinate relocation activities with the appropriate MCI representative and
perform the relocation work on its own equipment. If MCI relocates the
Provider's equipment within the space, the relocation will be at MCI's sole cost
and expense; provided, however, if the Provider's equipment is moved by the
Provider or is moved to another location, the relocation will be at the
Provider's sole cost and expense. For purposes of this Paragraph 7.2 and in
order to facilitate coordination, the parties will name appropriate field level
contacts and provide their respective telephone numbers within thirty (30) days
after execution of this Agreement.
7.3 Provider understands and agrees that permission to install its
equipment at an MCI location is not intended to and shall not be deemed to grant
Provider any property rights in the location. In the event, however, that this
arrangement shall be
-13-
construed by the owner of the building in which the location is situated to be
such a grant and if the owner of the building asserts such a grant to be a
violation of the lease under which MCI occupies the location, Provider agrees,
upon request of MCI, to either enter into an agreement approved by said owner or
immediately remove its equipment. MCI agrees to cooperate with Provider in
obtaining the approvals Provider may need to obtain from any building owner.
VIII. CAPACITY INTERRUPTION LIMITATIONS OF WARRANTY AND DAMAGES
8.1 For interruptions of the Capacity * , unless such interruption
is the result of any act or omission of MCI or Customer, or the failure of MCI
or Customer to allow Provider access to premises where repair of interruption
is necessary, or suspension of Capacity by Provider as permitted under the
terms of this Agreement. *
*
------------------------------- ------
*
*
Notwithstanding the termination provisions of paragraph 2.3 herein or the
default provisions of Article X herein, if any Circuit included in the Capacity
cannot meet the Specifications * , MCI may *, at MCI's discretion, * for
comparable services.
In addition, if Provider has identified a location listed on Exhibit C, Building
List, as being serviced by a self-healing fiber ring, * to such location in the
event that * . In no event, however, shall * during a particular month at a
location serviced by a self-healing ring * during that particular month.
-14-
Once a location has been identified by Provider as being serviced by a
self-healing ring, that location will be subject to the * listed above for
the term of this Agreement.
8.2 THE FOREGOING SHALL BE * , HOWEVER LONG IT SHALL LAST AND
REGARDLESS OF THE CAUSE, UNLESS SUCH LOSS OR DAMAGE IS DUE TO PROVIDER'S
WILLFUL OR NEGLIGENT ACTS OR OMISSIONS.
8.3 IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
THE OTHER PARTY, TO CUSTOMERS OF A PARTY OR TO ANY THIRD PARTIES FOR ANY
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES TO THE OTHER PARTY, TO THE
CUSTOMERS OF A PARTY OR TO A THIRD PARTY INCLUDING, WITHOUT LIMITATION, THOSE
BASED ON LOSS OF SERVICE, REVENUES, PROFITS OR BUSINESS OPPORTUNITIES, WHETHER
OR NOT PROVIDER OR MCI HAD OR SHOULD HAVE HAD ANY ACTUAL OR CONSTRUCTIVE
KNOWLEDGE THAT SUCH THAT SUCH DAMAGES MIGHT BE INCURRED BY A PARTY, CUSTOMERS OF
A PARTY, OR ANY THIRD PARTIES.
IX. INDEMNIFICATION
9.1 Provider shall indemnify and hold MCI and its Customers harmless
from and against any and all loss, liability, damage and expense (including
reasonable attorneys' fees) arising out of any demand, claim, suit or judgment,
for damages to any property or bodily injury to or death of any persons,
including, but not limited to, customers, agents and employees of either party
hereto (including payment under any worker's compensation law or under any plan
for employee disability and death benefits) which may arise out of or be caused
by any act or omission of Provider.
9.2 MCI shall indemnify and hold Provider harmless from and against
any and all loss, liability, damage and expense (including reasonable attorneys'
fees) arising out of any demand, claim, suit or judgment, for damages to any
property or bodily injury to or death of any persons, including, but not limited
to, customers, agents and employees of either party hereto (including payment
under any workers' compensation law or under any plan for employee disability
and death benefits) which may arise out of or be caused by any act or omission
of MCI.
9.3 If any claim arises to which the provisions of this Article IX
may be applicable, the party against whom such claim is made shall immediately
upon learning of such claim, notify the other party. Such other party, at its
option, may settle or compromise such claim or retain counsel of its own
choosing and control and prosecute the defense. In no event shall the party
-15-
against whom the claim is asserted have the right to pay, settle or otherwise
compromise such claim without the prior written consent of the party who may be
obligated for such indemnity and the parties hereto agree that they will not
unreasonably withhold their consent to such payment, settlement or compromise.
X. DEFAULT
10.1 Except for Provider's obligations to furnish the Capacity
without interruption and to repair the Network and/or Circuit(s) comprising the
Capacity, the exclusive remedies for breach of which obligations are provided
for in Article VIII herein, neither party shall be in default under this
Agreement or in breach of any provisions hereof unless and until it has been
given written notice of a breach of this Agreement by the other party and shall
have failed to cure such breach within thirty (30) days after receipt of such
notice. When a breach cannot reasonably be cured within such thirty (30) day
period, if the breaching party shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such breach shall
be extended for such period of time as may be necessary to complete such curing.
Notwithstanding the termination provisions of paragraph 2.3 herein, upon the
failure to cure any such breach as provided above, the party giving notice of
the breach may thereupon immediately terminate this Agreement or any ASR or
Service Agreement upon providing written notice of termination to the breaching
party and without incurring any termination liability. Upon default by either
party, except as expressly limited herein, the non-defaulting party shall have
the right to pursue any or all remedies available at law and/or equity.
10.2 In addition to any breach of a material term of this Agreement,
other events that will, if not cured within the applicable time periods,
constitute a default shall include, but not be limited to, the occurrence of any
one or more of the following events:
a. The filing of bankruptcy or making a general assignment
for the benefit of creditors; and/or
b. The defaulting party's material violation of any
applicable laws, statutes, ordinances, codes or other
legal requirements with respect to the Capacity when the
violation(s) is not remedied within ten (10) business
days after written notice thereof; provided, however,
that each party hereto reserves the right to contest
and/or appeal any such claim of violation, in which
event Termination shall be stayed pending resolution of
the contest and/or appeal.
-16-
XI. INFRINGEMENT
11.1 Provider represents that the equipment and facilities it will
use in furnishing the Capacity to MCI pursuant to this Agreement will not
infringe or violate any copyright, patent, trade secret or any other
intellectual property rights or similar property rights, excluding, however, any
such infringement which may arise due to combining such equipment and facilities
with equipment or facilities furnished by MCI or with equipment or facilities
furnished by any entity other than Provider outside the Demarcation Points.
Provider will indemnify, defend and hold MCI and its Customers harmless from and
against any claims made as a consequence of any such infringement or violation
of any copyright, patent, trade secret or any other intellectual property rights
or similar property rights. Moreover, should the equipment or facilities
furnished by Provider hereunder become, or in Provider's opinion is likely to
become, the subject of a claim of infringement, or should MCI's use of the
equipment and facilities be finally enjoined, Provider shall at its election and
expense do either A or B below:
A. Procure for MCI the right to continue using the equipment or
facilities; or
B. Replace or modify the equipment or facilities to make it
non-infringing.
XII. REQUIRED RIGHTS
12. Each Affiliate providing Capacity in any territory represents
that it currently owns, has obtained or will obtain all licenses,
authorizations, franchises, rights of way and other licenses or permits
necessary for furnishing the Capacity to MCI (hereinafter referred to as
"Required Rights"). Such Affiliate shall utilize its best efforts to cause such
Required Rights to remain in effect throughout the term of this Agreement.
Notwithstanding the termination provisions of paragraph 2.3 of this Agreement,
if such Affiliate does not obtain and maintain such Required Rights, MCI may
terminate this Agreement and/or any affected ASR or Service Agreement
immediately upon notice to Provider, without incurring any termination
liability, in addition to exercising any other rights or remedies under this
Agreement.
-17-
XIII. FORCE MAJEURE
13.1 In no event shall either party have any claim or right against
the other party for any failure of performance by such other party if such
failure of performance is caused by or the result of causes beyond the
reasonable control of such other party, including, but not limited to, act of
God, fire, flood or other natural catastrophe; laws, orders, rules, regulations,
directions or actions of governmental authorities having jurisdiction over the
subject matter of this Agreement or any civil or military authority; national
emergency, insurrection, riot or war; or other similar occurrence.
Notwithstanding the termination provisions of paragraph 2.3 herein, if the
excusable delay exceeds sixty (60) days, either party may terminate this
Agreement and/or any affected ASR or Service Agreement immediately upon written
notice, without incurring any termination liability.
XIV. TAXES
14.1 Any sums MCI is required to pay under this Agreement are
exclusive of any taxes which may be imposed with respect to this Agreement or
any of the services furnished or used hereunder including, but not limited to,
taxes imposed on this Agreement, the Capacity, maintenance and repair or
Provider's provision thereof or MCI's use thereof. MCI shall be responsible for
any such taxes with the exception of municipal franchise taxes levied against
Provider or regarding Providers' provision of the Capacity/services which shall
be Provider's responsibility and obligation. MCI shall pay to or reimburse
Provider for any taxes Provider is required to pay on MCI's behalf upon
presentation of proof thereof.
-18-
XV. NOTICES
15.1 All notices and communications concerning this Agreement shall
be addressed to:
MCI (one copy to each) at:
1. Director
Alternative Access Development
0000 Xxxxxx Xxxx.
XxXxxx, Xxxxxxxx 00000
2. Assistant General Counsel-Real Estate
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Provider at:
Time Warner AxS
c/o Time Warner Communications Holdings, Inc.
000 Xxxxxxxxx Xxxxx, Xxxx
Xxxxxxxxx, XX 00000
Attn: Vice President, Marketing
Time Warner AxS
c/o Time Warner Communications Holdings, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
or at such other address as may be designated in writing to the other party.
15.2 Notices shall be sent by registered or certified U.S. Mail,
postage prepaid, or by commercial overnight delivery service, or by facsimile,
and shall be deemed delivered to addressee 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; provided, however, that upon receipt
of a returned notice marked "unclaimed," the sending party shall make reasonable
effort to contact and notify the other party by telephone. Notwithstanding the
aforementioned, the original of the facsimile notice must be sent by overnight
delivery service in order for the delivery of facsimile notice to be deemed
effected.
-19-
XVI. CONFIDENTIALITY
16.1 All confidential and proprietary information disclosed by
either party hereto to the other in connection with this Agreement or any
Service Agreement and in accordance with the Confidentiality Agreement, attached
hereto as Exhibit F and hereby incorporated herein, shall be treated as required
under the provisions of the Confidentiality Agreement.
16.2 The provisions of this Article XVI shall survive termination of
this Agreement for a period of two (2) years.
XVII. WAIVER
17.1 Except as otherwise stated herein, no waiver of any breach of
this Agreement or of any of the terms hereof shall be effective unless such
waiver is in writing and signed by the party against whom such waiver is
claimed. No waiver of any breach shall be deemed to be a waiver of any other or
subsequent breach.
XVIII. GOVERNING LAW
18.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its principles
of conflicts of laws.
XIX. ASSIGNMENT
19.1 Provider may assign its rights and delegate its obligations
under this Agreement to any Affiliate in accordance with Article IA. Any
assignment or transfer of this Agreement by Provider shall be subject to MCI's
rights under this Agreement and any assignee or transferee shall continue to
perform Provider's obligations to MCI under the terms and conditions of this
Agreement and any Service Agreement. Notwithstanding any assignment or transfer
of this Agreement by Provider but subject to Article IA above, Provider shall
nevertheless remain fully and primarily liable for all of Provider's obligations
under this Agreement and any Service Agreement.
19.2 This Agreement, and each of the parties' respective rights and
obligations hereunder, shall be binding on and inure to the benefit of the
parties and each of their respective successors and assigns.
-20-
XX. NON-DISCLOSURE OF COMMUNICATIONS
20.1 Provider and each Affiliate hereby acknowledges its obligations
under Section 605/705 of the Communications Act of 1934, as amended, and other
applicable federal or state laws not to divulge or publish (except as authorized
by law) the existence, contents, substance, purport, effect or meaning of any
communications which Provider or such Affiliate transmits, receives or assists
in transmitting or receiving in connection with the Capacity provided under this
Agreement.
XXI. NON-EXCLUSIVE ARRANGEMENT
21.1 This Agreement between Provider and MCI is non-exclusive.
Nothing in this Agreement shall prevent Provider or MCI from entering into
similar arrangements with any other entities or otherwise furnishing Capacity to
any entity.
XXII. INSURANCE AND LIABILITY
22.1 Throughout the term of this Agreement, Provider and each
Affiliate and its contractors and/or subcontractors, shall obtain and maintain
the following insurance coverage:
a. Comprehensive or commercial general liability insurance
naming Provider and its affiliates as the named
insureds. MCI shall be included as an additional insured
for purposes of this Agreement. The comprehensive or
commercial general liability insurance policy shall
cover liability for injury to or death of persons or
damage to property including, but not limited to, work
associated with this Agreement, including such liability
as may arise from the use of independent contractors, as
well as any contractual liability assumed under this
Agreement. The policy shall be in the amount of Two
Million Dollars ($2,000,000) combined single limit per
occurrence and aggregate (where applicable) for bodily
injury, personal injury and property damage, and shall
cover (i) explosion liability and damages to underground
utilities and damage caused by collapse if the
appropriate exposure exists (involving blasting,
underpinning, and structural alterations, etc.); (ii)
broad form property damage; and (iii) personal injury
liability.
-21-
b. Business automobile liability insurance including
coverage for owned, hired and non-owned vehicles in the
amount of One Million Dollars ($1,000,000) combined
single limit per occurrence/accident for bodily injury
and property damage. MCI shall be included as an
additional insured for purposes of this Agreement.
c. Worker's compensation in the statutory amount(s) and
with benefits required by the laws of the state in which
the work is performed and the state(s) in which
employees are hired, if the state(s) are other than that
in which the work is performed. Provider shall also
obtain and maintain employers' liability insurance with
a minimum limit of liability of One Million Dollars
($1,000,000) for bodily injury per accident.
22.2 Certificates evidencing such insurance coverage shall be
submitted to MCI prior to Provider or its Affiliates beginning any work
associated with this Agreement. The Certificates shall certify that no
material alteration, or termination of such coverage shall be effective
without at least thirty (30) days' advance notice to MCI.
22.3 Provider and each Affiliate shall require each contractor
and/or subcontractor to obtain and maintain at all times during the term
of this Agreement, insurance equivalent to that which is required of
Provider. Subcontractor's carriers shall waive all right of recovery
against MCI for any injuries to persons or damage to property in the
execution of work performed pursuant to this Agreement.
XXIII. AUTHORITY
23.1 Each party has full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each
party has been properly authorized and empowered to enter into this Agreement
and bind its representatives and designated Affiliates to the terms, conditions,
and required performances set forth in the Agreement.
XXIV. GENERAL PROVISIONS
24.1 The relationship of the parties hereunder shall always and only
be that of independent contractors.
24.2 Whenever the singular is used herein, the same shall include
the plural where appropriate, and when the plural is used herein, the same shall
include the singular where appropriate.
-22-
24.3 In the event any of the provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the unaffected provisions of this
Agreement shall be unimpaired and remain in full force and effect. MCI and
Provider shall negotiate in good faith to substitute for such invalid, illegal
or unenforceable provisions a mutually acceptable provision consistent with the
original intention of the parties hereto.
24.4 The title page, captions or headings in this Agreement are
strictly for convenience and shall not be considered in interpreting it or as
amplifying or limiting any of its content.
24.5 This Agreement is the joint work product of both parties
hereto; accordingly, in the event of ambiguity no presumption shall be imposed
against any party by reason of document preparation.
24.6 Provider represents and warrants that, prior to the first
assignment and delegation to an Affiliate under Article IA such Affiliate shall
have been duly notified of the pending terms and conditions set forth in this
Agreement and shall have agreed to render the performances required in this
Agreement.
XXV. ARBITRATION
25.1 Any dispute or disagreement arising between Provider and MCI in
connection with this Agreement, which is not settled to the mutual satisfaction
of Provider and MCI within thirty (30) days (or such longer period as may be
mutually agreed upon) from the date that either party informs the other in
writing that such dispute or disagreement exists, shall be settled by
arbitration conducted in Washington, D.C., in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect. The
arbitration procedure shall commence within thirty (30) days after either party
files an arbitration request. The parties must select an arbitrator within the
thirty (30) day period in accordance with the arbitrator selection rules of the
American Arbitration Association. Each potential arbitrator shall have a minimum
of five (5) years of telecommunications experience. The decision of the
arbitrator shall be final and binding upon the parties and judgment may be
obtained thereon by either party in a court of competent jurisdiction. Each
party shall bear the cost of preparing and presenting its case. The cost of the
arbitration, including the fees and expenses of the arbitrator, will be shared
equally by the parties unless the award otherwise provides.
-23-
XXVI. ENTIRE AGREEMENT
26.1 This Agreement, including Exhibits A through H which are
attached hereto and hereby incorporated as an integral part of this Agreement,
constitutes the entire Agreement between the parties with respect to the subject
matter and geographic location(s) referred to and supersedes any and all prior
or contemporaneous agreements whether written or oral. Except as otherwise
provided herein with regard to Exhibits, this Agreement cannot be modified
except in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
MCI Telecommunications Attest:
Corporation
By: /s/ XXXXXX XXXXX By: /s/ XXXXXX X. XXXXXXX
--------------------------- ---------------------------
Name: Xxxxxx Xxxxx Name: XXXXXX X. XXXXXXX
Title: Vice President Title: Assistant Secretary
Date: 9/12/94 Date: 9/16/94
------------------------- -------------------------
(Corporate Seal)
Time Warner AxS Attest:
By: Time Warner Communications
Holdings, Inc., its Managing
General Partner
By: /s/ XXX XXXXXX By: /s/ XXXX XXXXXXXXX
--------------------------- ---------------------------
Name: Xxx Xxxxxx Name: Xxxx Xxxxxxxxx
Title: President Title: Assistant Secretary
Date: 9/1/94 Date: 9/1/94
------------------------- -------------------------
(Corporate Seal)
-24-
EXHIBIT B
SERVICE AGREEMENT
THIS SERVICE AGREEMENT shall be subject to all terms and conditions of the
Capacity Agreement dated as of the ______ day of ______________ 19__, (the
"Capacity Agreement"), between _____________________________________
(hereinafter referred to as "Provider"), and MCI Telecommunications Corporation
(hereinafter referred to as "MCI") which, by this reference, is incorporated
herein.
1. SERVICE DESCRIPTION
______ DS-1 (1.544 Mbps) digital channels; or
______ DS-3 (45 Mbps) digital channel(s)
on the Provider's Network, between the following
Demarcation Points in _____________, ______________:
Demarcation Point #1:
__________________, __________________________________
(Building No.) (Building Name)
______________________________________________________
(Customer's Name)
_________________________, _________________, ________
(Street) (Floor or Level) (Room)
_________________________, ___________________________
(City) (State)
Demarcation Point #2:
__________________, __________________________________
(Building No.) (Building Name)
______________________________________________________
(Customer's Name)
_________________________, _________________, ________
(Street) (Floor or Level) (Room)
_________________________, ___________________________
(City) (State)
The Demarcation Points will be the Provider-furnished DSX-1 (OR) DSX-3 cross
connect panel, whichever is applicable, located within the premises designated
room or other location described above as
B-1
Demarcation Points 1 and 2.
2. Requested Availability Date: __________________.
3. Term Commencement Date: __________________.
(commencement date for service and billing)
This Service Agreement shall commence on the date (hereinafter referred to as
the "Commencement Date") upon which the following conditions have been
fulfilled: (i) the Capacity described in this Service Agreement is available for
use; (ii) Provider has completed all testing required by the Capacity Agreement
and Provider has obtained MCI's authorized signature on a completed Service
Acceptance Certificate; and (iii) the seventy-two (72) hour acceptance period
described in Exhibit H of the Capacity Agreement has expired without MCI
notifying Provider that any Circuit has failed to perform within the
Specifications.
4. Fees and Charges for Capacity
The Fees and Charges for the Capacity provided hereunder shall be:
4.1 $____.00 Recurring Charge per month ($_____.00 Recurring Charge
per channel, per month for service provided herein).
4.2 $____.00 Non-Recurring Fee (one time set-up charge).
5. Term
Unless terminated as provided for elsewhere in this Service Agreement or in the
Capacity Agreement, this Agreement shall be for an initial term of ___________
(_____) year(s) (the "Initial Term") commencing on the Commencement Date, and
shall continue thereafter following the expiration of the Initial Term, on a
month-to-month basis at the rates applicable for that term stated herein until
terminated by MCI in accordance with the provisions of the Capacity Agreement.
6. Miscellaneous
All capitalized terms referred to in this Service Agreement shall have the
meanings defined herein or in the Capacity Agreement. This Service Agreement may
not be amended or otherwise altered except by written agreement between the
parties hereto.
This Service Agreement shall not be considered as an exhibit or amendment to the
Capacity Agreement. Any amendments made hereto shall only affect this Service
Agreement and the Capacity described herein.
B-2
Time Warner AxS hereby assigns this Service Agreement to _____________________.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement this _____________ date of ____________, 19___.
TIME WARNER AXS MCI TELECOMMUNICATIONS
BY: TIME WARNER COMMUNICATIONS
CORPORATION HOLDINGS, INC., ITS
MANAGING GENERAL PARTNER
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
Date: ______________________________ Date: ______________________________
B-3
AMENDMENT NUMBER ONE
TO
MASTER CAPACITY AGREEMENT
THIS AMENDMENT is made this 2nd day of December 1994, by and between MCI
Telecommunications Corporation, a Delaware corporation, having an office at 0000
Xxxxxxxxxx Xxxxxx, XX Xxxxxxxxxx, XX 00000 (hereinafter referred to as "MCI"),
and Time Warner Communications, (f/k/a Time Warner AxS), a Delaware general
partnership, having an office at 000 Xxxxxxxxx Xxxxx, Xxxx, Xxxxxxxxx, XX 00000
(hereinafter referred to as "Provider")
WITNESSETH
WHEREAS, MCI and Provider executed a Master Capacity Agreement ("Agreement")
effective September 12, 1994; and,
WHEREAS, Provider informed MCI of a change in name under which it will conduct
business; and,
WHEREAS, MCI and Provider each desire to amend the referenced Agreement;
NOW, THEREFORE, in consideration of their mutual agreement and promises, MCI and
Provider do hereby agree that the Agreement be amended as follows:
1. A. The term "Provider" shall now be defined throughout the document
as Time Warner Communications.
B. Article 1B.12 is deleted in its entirety and replaced with the
following:
"Provider shall mean Time Warner Communications or its Affiliates as
set forth in Article IA above."
1
2. Article 1A.5 is deleted in its entirety and replaced with the following:
"MCI hereby accepts and approves the assignment of this Agreement to the
following Partly Owned Affiliates: Charlotte AxS, L.P., and Metrocomm AxS,
L.P."
3. Upon the execution of this Amendment, the following changes shall be
effective:
A. Article 4.4, paragraph 1 is deleted in its entirety and replaced
with the following:
"4.4 The rates for furnishing the Capacity to MCI throughout the term of
this Agreement are set forth in Exhibit E. Under no circumstances during
the term of this agreement shall the price MCI pays to Provider for
Capacity be more than * of the tariffed prices MCI can obtain from the
LEC serving the same locations as Provider (Provider mileage for
individual Circuits shall conform to the mileage component assigned to the
individual Circuit by the LEC) assuming the LEC is used for all MCI access
requirements (MCI LEC Price). In the event of a LEC tariff change, both
parties will work together to establish new pricing. Provider shall modify
the applicable rates in Exhibit E within seventy-five (75) days of such
LEC tariff change. This change will be effective on the date of the LEC
tariff change."
B. Exhibit E entitled "Pricing" is deleted in its entirety and replaced
with the attached Exhibit E - Revision 1.
Except as provided herein, all terms and conditions of the Agreement shall
remain unchanged and in full force and effect.
2
IN WITNESS WHEREOF, each of the parties have executed this Amendment by their
duly authorized representatives on the date set forth below.
TIME WARNER COMMUNICATIONS MCI TELECOMMUNICATIONS CORP.
By: Time Warner Communications
Holdings, Inc., its General
Partner
/s/ XXXXXXXX X. XXXXXXX /s/ XXXXXX X. XXXXX
----------------------------------- -----------------------------------
Signature Signature
Xxxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
----------------------------------- -----------------------------------
Signature Signature
Vice President Vice President
----------------------------------- -----------------------------------
Title Title
11-11-94 December 2, 1994
----------------------------------- -----------------------------------
Date Date
ATTEST: ATTEST:
/s/ XXXX XXXXXXX XXXX /s/ XXXXXX XXXXXXX
----------------------------------- -----------------------------------
Signature Signature
Xxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxx
----------------------------------- -----------------------------------
Signature Signature
Assistant Secretary Assistant Secretary
----------------------------------- -----------------------------------
Title Title
Corporate Seal Corporate Seal
3
*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
SECOND AMENDMENT TO MASTER CAPACITY AGREEMENT
THIS SECOND AMENDMENT to Master Capacity Agreement ("Second Amendment") is
made this 28 day of August 1997, between MCImetro Access Transmission Services,
Inc. (as assignee of MCI Telecommunications Corporation), a Delaware
corporation, having an office at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "MCI"), and Time Warner Communications (f/k/a Time
Warner AxS), a Delaware general partnership, having an office at 000 Xxxxxxxxx
Xxxxx, Xxxx Xxxxxxxxx, XX 00000 (hereinafter referred to as "Provider").
WITNESSETH:
WHEREAS, MCI and Provider executed a Master Capacity Agreement effective
September 12, 1994 as amended by the Amendment Number One to Master Capacity
Agreement effective December 2, 1994 (collectively the "Agreement"); and,
WHEREAS, as of the Effective Date defined herein, MCI and Provider each
desire to amend the referenced Agreement to, among other things, bring under the
terms of the Agreement certain Capacity currently leased by MCI pursuant to a
Master Capacity Agreement between MCI and Hyperion Telecommunications, Inc.
dated as of December 10, 1993, as amended (the "Hyperion Agreement").
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definition of Terms. All capitalized terms used in this Second
Amendment but not defined herein shall have the meanings given to such terms in
the Agreement.
2. Hyperion Agreement. Pursuant to a series of transfers of assets,
Hyperion Telecommunications of New York, Inc. (a wholly-owned subsidiary of
Hyperion Telecommunications, Inc.) and a partner in the partnership between
Hyperion Telecommunications of New York, Inc., Advance/Xxxxxxxx Partnership and
Time Warner Entertainment-Advance/Xxxxxxxx Partnership (the "Partnership") has
agreed to transfer to Time Warner AxS of Albany, L.P. ("TW Albany"), certain
telecommunications network assets on which Capacity is currently provided to MCI
in the metropolitan areas of Albany and Binghamton, New York pursuant to the
Hyperion Agreement. Provider represents and warrants to MCI that TW Albany is,
and will be as of the Effective Date, a Wholly Owned Affiliate of Provider as
defined in Article 1A of the Agreement. Immediately following the dissolution of
the Partnership and the subsequent transfer of that certain portion of network
assets to TW Albany as described above (the "Effective Date"), Provider shall
deliver to MCI certified copies of all documentation reasonably requested by MCI
to evidence the completion of the required dissolutions and transfers of assets.
Subject to receipt by MCI of the required documentation as set forth in the
preceding sentence, all circuits in the Albany and Binghamton, New York
metropolitan areas currently leased by MCI under the Hyperion Agreement, which
circuits are identified on Appendix 1 attached hereto (the "Hyperion Circuits")
shall be transferred to the Agreement effective as of the Effective Date, and
shall thereafter be governed by all the terms and conditions thereof as though
such Hyperion Circuits had originally been ordered under the Agreement.
Effective as of the Effective Date, the Hyperion Circuits shall be repriced by
Provider in accordance with the Agreement. All future Capacity leased by MCI in
the Albany and Binghamton, New York metropolitan areas shall be leased under the
Agreement.
3. Metropolitan Areas and Building Locations. Exhibit C of the Agreement
shall be amended to add Albany and Binghamton, New York to the listed
metropolitan areas in which Provider's Network is currently able to furnish
Capacity to MCI. Exhibit C shall further be amended to add the building
locations identified on Appendix 2 attached hereto ("Hyperion Building
Locations").
4. Pricing. Section 1, paragraph B.iv. of Exhibit E to the Agreement shall
be amended to add the following two cities and additional discounts:
Cities Additional Discounts
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* *
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5. Except as provided herein, all terms and conditions of the Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, each of the parties has executed this Second Amendment
by its duly authorized representatives on the date set forth below.
Time Warner Communications MCImetro Access Transmission Services, Inc.
By: Time Warner Communications
Holding, Inc., its
General Partner
Name: Xxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
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Title: VP National Sales Title: Vice President
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Date: 8/27/97 Date: 9/26/97
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Attest: Attest:
Signature: XXXXXXX XXXXX Signature: XXXXXX X. XXXXX
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Name: XXXXXXX XXXXX Name: XXXXXX X. XXXXX
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Title: Sr. V.P. Sales Title: Assistant Secretary
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(Corporate Seal) (Corporate Seal)
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*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
