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Redacted portions have been marked with asterisks (****). Confidential treatment
has been requested for the redacted portions. The confidential redacted portions
have been filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT
EXHIBIT 10.25
EXECUTION COPY
CAPACITY PURCHASE AGREEMENT
THIS CAPACITY PURCHASE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Agreement"), is entered into as of January 5,
1998, between XXXXXXXX COMMUNICATIONS, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Grantor") and INTERMEDIA
COMMUNICATIONS INC. a corporation organized and existing under the laws of the
State of Delaware (the "Purchaser").
WITNESSETH:
WHEREAS, the Grantor owns the System (as defined herein);
WHEREAS, additional construction of the System by the Grantor is planned
and will be completed pursuant to the Network Deployment Plan (as defined
herein and as agreed to by the Purchaser and the Grantor in accordance with the
terms hereof); and
WHEREAS, the Purchaser desires to acquire rights with respect to the
Adjusted Purchased Capacity (as defined herein) on a non-cancelable
indefeasible right of use basis in fiber ("IRU") on the System;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
convenants contained herein, covenant and agree with each other as follows:
Section 1. Attachments and Definitions
1.1 Attachments. (a) The following schedules are attached hereto and are
incorporated herein:
Schedule 1 Purchased Capacity, Associated Pricing, Service Intervals
and System Performance Standards;
Schedule 2 Network Deployment Plan;
Schedule 5 Management Fee.
(b) The parties hereto agree that, subject to each party's reasonable
agreement with the terms and contents of each of the following schedules and
exhibits, such schedules and exhibits shall, within thirty (30) days of the
Execution Date, be attached hereto and incorporated herein:
Schedule 3 Grantor Cities and Location of Grantor POPs;
Schedule 4 Collection Agreement and Collection Service Order;
Exhibit A Backbone Agreements (including each associated Assignment
and Assumption Agreements and Assigned Circuits;
Exhibit B Form of Service Order;
Exhibit C Form of Letter of Agency.
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1.2 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.2 shall have the respective meanings set forth in this Section 1.2.
"Acknowledgment": as defined in Section 6.1(a) hereof.
"Actual Start Date": as defined in Section 6.1(b) hereof.
"Adjusted Purchased Capacity": the sum of Purchased Capacity and additional
Capacity purchased as Required Capacity on the System pursuant to the terms of
this Agreement.
"Affiliate": of any Person means any other Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
Person. For purposes of this definition, the term "control" (including the
correlative meanings of the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise. With respect to the Grantor, "Affiliate" means any Person
which may be consolidated with the Grantor for financial reporting purposes.
"Agreement": as defined in the preamble hereof.
"Ancillary Services": as defined in Section 7.1(c) hereof.
"Annual Commitment": as defined in Section 2.3(b) hereof.
"Annual Period": as defined in Section 2.3(b) hereof.
"Appraisal Procedure": means a procedure, initiated at the election of the
Purchaser, whereby an independent appraiser is selected by the Purchaser (the
"Purchaser Appraiser") to determine the market rate for Material Capacity. Upon
the Purchaser Appraiser's determination of the market rate for Material
Capacity, the Purchaser shall give the Grantor written notice of the rate so
determined by the Purchaser Appraiser. In the event that the Grantor declines to
accept the Purchaser Appraiser's determination of the market rate for Material
Capacity and to recalculate the Rates in accordance with Section 3.3(b) on the
basis of such rate, the Grantor shall, within ten (10) days of its receipt of
the foregoing notes from the Purchaser, select its own independent appraiser
(the "Grantor Appraiser") to determine the market rate for Material Capacity.
The Grantor Appraiser shall have thirty (30) days to make its determination of
the market rate for Material Capacity. Upon the Grantor's receipt of the Grantor
Appraiser's determination of the market rate for Material Capacity, the Grantor
shall forward such determination to the Purchaser. In the event that there is a
discrepancy between the rates determined by each appraiser, the Purchaser and
the Grantor shall select a mutually agreeable licensed arbitrator with knowledge
of the telecommunications industry (the "Arbitrator") to make a third
determination of the market rate for Material Capacity. The Arbitrator shall
then, within thirty (30) days of his or her selection and without reference
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to the rates determined by the Purchaser Appraiser or the Grantor Appraiser,
independently determine the market rate for Material Capacity. Upon the
Arbitrator's determination of the market rate for Material Capacity, the
Arbitrator shall compare the rate that he or she determined with that of the
rates determined by each of the Purchaser Appraiser and the Grantor Appraiser.
The new market rate shall then be deemed to be the rate of either the Purchaser
Appraiser or the Grantor Appraiser depending on which such rate is closest to
that determined by the Arbitrator. The party whose appraiser's determination is
ultimately rejected by the Arbitrator shall be responsible for all of the cost
and expense of the Arbitrator and for up to $75,000 of the cost and expense of
the other party's appraiser.
"Assignment Agreement Effective Date": as defined in Section 8.1(c) hereof.
"Assignment Agreement Execution Date": as defined in Section 8.2 hereof.
"Assignment and Assumption Agreement": these certain Assignment and
Assumption Agreements, which agreements shall be on terms and conditions
satisfactory to the Purchaser and the Grantor, providing for the assignment and
assumption of the Backbone Agreements and which such agreements shall be
included in Exhibit A.
"Backbone Agreement": (i) the Purchaser's backbone agreements with the
Backbone Agreement Service Providers, which such agreements are, or shall be,
the subject of the Assignment and Assumption Agreement and (ii) the MCI
Backbone Agreement (which may be the subject of an Assignment and Assumption
Agreement), all of which agreements described in clauses (i) and (ii) shall be
identified in Exhibit A.
"Backbone Agreement Service Provider": each provider of telecommunications
services, other than the Purchaser, party to a Backbone Agreement (i.e. MCI,
WorldCom, IPN, IXC, Cable & Wireless, Sprint and IPN/TPL).
"Backbone Payments": the Non-Recurring and Monthly Recurring Charges and
the Management Fee.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in Tulsa, Oklahoma or Tampa, Florida are authorized or
required by law to close.
"Capacity": capacity on the System, which may be provided, On-Net or
Off-Net, for telecommunications in DS-3, OC-3, OC-12, OC-48 and OC-192
interexchange carrier services but excluding Other Services and Sub-D8-3
Capacity.
"Catch-Up Period": the sixth (6th) year of the Term.
"Circuit": a dedicated communications path with a specified bandwidth.
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"Collocation Agreement": a collocation agreement, a form of which shall be
attached hereto as part of Schedule 4.
"Collocation Service Order": a collocation service order, a form of which
shall be attached hereto as part of Schedule 4.
"Collocation Services": as defined in Section 7.2 hereof.
"Communications Act": the Communications Act of 1934, as amended.
"Confidential Information": as defined in Section 17.4 hereof.
"Connecting Facilities Assignment": the particular assignment per Circuit
on facilities where one carrier meets another carrier.
"Cross-Connect": a physical connection between two pieces of equipment
located in the same facility.
"Designated Capacity": Capacity which is indicated in the Initial Network
Deployment Plan under the columns headed "On-Net PLs Now" and "On-Net ATM Now"
and which the Granter shall be required as of the Execution Date, to provision
at the Rates provided for pursuant to the terms of this Agreement.
"Designated Capacity Exceptions": Grantor POPs (identified as "Xxxxxxxx
City Plan" in the Initial Network Deployment Plan) which first become available
in accordance with the scheduled availability set forth in the Initial Network
Deployment Plan and for which Off-Net Rates apply until the date of such
scheduled availability.
"Designated Off-Net Capacity": Capacity which is indicated in the Initial
Network Deployment Plan under the column headed "On-Net PLs 12 Mo." and with
respect to which for up to twelve (12) months from the Execution Date the
Grantor shall be entitled to provision to the Purchaser Off-Net and at rates
which pass through to the Purchaser the rates charged by the Third-Party
Service Provider for such Capacity (the "Off-Net Rate"); provided that, after
the expiration of such twelve (12) month period, or, in the event that the
Grantor can provision such Capacity On-Net prior to the expiration of such
twelve (12) month period, such Capacity shall become subject to the Rates
provided for pursuant to the terms of this Agreement.
"Design Layout Record": a record containing the technical information that
describes the telecommunication facilities and termination points provided by a
telecommunications customer to a carrier in order to enable the carrier to
design the overall service to be provided by the carrier to that customer.
"Due Date": the fifteenth of the month following the month in which an
invoice is issued; provided that the Purchaser's payments of the Non-Recurring
and Monthly Recurring Charges shall be received by the Grantor in immediately
available funds and
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at least one billing cycle prior to the date that payment is due from the
Grantor to the Backbone Agreement Service Provider.
"Effective Date": as defined in Section 4.1 hereof.
"Excess": as defined in Section 3.2 hereof.
"Execution Date": March 31, 1998.
"Extension Period": as defined in Section 4.1 hereof.
"FCC": the Federal Communications Commission.
"Force Majeure Event": circumstances which give rise to a party hereto
being unable to perform its obligations with respect to any provision of this
Agreement (other than the obligations to make payments with respect to
liabilities which accrued prior to a Force Majeure Event) due to such party
being prevented, restricted, or interfered with by causes beyond its reasonable
control, such causes shall be deemed to include (i) acts of God, (ii) fire,
(iii) explosions, (iv) vandalism, (v) cuts in telecommunications cable (which
such cuts could not have been prevented by the exercise of reasonable care),
(vi) power outages, (vii) storms or other similar occurrences or other
atmospheric conditions, (viii) any change in law, order, regulation, directive,
action or request of the United States government or of a state or local
government or any instrumentality of any one or more of said governments, or of
any civil or military authority, (ix) national emergencies, (x) insurrections,
(xi) riots, (xii) [illegible], (xiii) acts of terrorism, (xiv) strikes,
lockouts, work stoppages or other labor difficulties, (xv) Third Party Service
Provider or supplier failures, breaches or delays (so long as any such
Third-Party Service Provider or supplier was selected with reasonable care) and
(xvi) Third-Party Service Provider or supplier shortages of materials provided,
however, that the Grantor's dispute with WorldCom (as reflected in the Grantor's
filed lawsuit against WorldCom) shall not be considered a force majeure event.
"Grantor": as defined in the preamble hereof.
"Grantor City": a city which shall be listed as a "Grantor City" on
Schedule 3.
"Grantor POP" or "Grantor Point of Presence": a facility on the System in
a Grantor City designated by the Grantor for the origination or termination of
Capacity, as shall be set forth on Schedule 3.
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"Initial Network Deployment Plan": the Purchaser's initial Network
Deployment Plan which is attached hereto as Schedule 2.
"Initial Payment": $1,050,000.
"Initial Payment Date": the tenth (10th) Business Day after the Execution
Date.
"Interconnection Services": as defined in Section 7.1 hereof.
"Interconnection Cost": as defined in Section 7.1 hereof.
"Interexchange Service": long-distance telecommunications service between
local access transport areas.
"IRU": as defined in the recitals hereof.
"Link": as defined in Section 7.1 hereof.
"Local Access": as defined in Section 7.1 hereof.
"Management Fee": as defined in Section 8.4 hereof.
"Market Rate": the rate determined pursuant to the Appraisal Procedure.
"Material Capacity": (i) when used in connection with Most Favored Rate,
capacity provided by the Grantor to a customer other than capacity provided to a
customer which is being provided for (a) a longer period of time than the Term
and (b) the volume of which is greater than the Capacity being purchased by the
Purchaser hereunder and (ii) when used in connection with an Appraisal
Procedure, capacity with substantially similar technical and operational
specifications as the Capacity being purchased by the Purchaser hereunder
provided by a telecommunications service provider to a customer for a
comprehensive interexchange telecommunications network for a material length of
time and a material volume associated with the Capacity (it being understood
that a material length of time is for a term of (1) one year or more).
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"MCI Backbone Agreement": as defined in Section 8.1(d) hereof.
"Minimum": as defined in Section 8.2 hereof.
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"Network Deployment Plan": the Purchaser's use of Capacity plan attached
hereto as Schedule 2 (which such plan as of the Execution Date is the Initial
Network Deployment Plan), which may, pursuant to the provisions of Section
2.5, be amended as of each Plan Adjustment Date.
"Non-Recurring and Monthly Recurring Charges": as defined in Section 8.4
hereof.
"Off-Net": a Circuit which is not On-Net.
"Off-Net Rate": as defined in the definition of "Designated Off-Net
Capacity".
"On-Net": (i) a Circuit traversing the System both end points of which
originate or terminate at a Grantor POP in a Grantor City or (ii) a Circuit
which the Grantor has use of as result of a swap of a Circuit of the type
described in the preceding clause (i) for a Circuit on another capacity
provider's network to the extent such capacity is available.
"Other Services": Local Access, Interconnection Services, Ancillary
Services and Collocation Services.
"Person": any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Plan Adjustment Date": during the Term, each six (6) month anniversary of
the Execution Date, or such other date as the parties may mutually agree.
"Pricing Adjustment Date(s)": the fifth (5th), tenth (10th) and fifteenth
(15th) anniversaries of the Execution Date.
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"POP": a facility for the origination or termination of telecommunications
services.
"Purchase Price Payment": with respect to the IRU granted in respect of
the Capacity, each monthly amount payable on a Due Date by the Purchaser to the
Grantor in respect of the Capacity acquired.
"Purchased Capacity": the minimum Capacity (which shall include Capacity
provided pursuant to the Backbone Agreements in accordance with the provisions
of Section 8) in dollars to be acquired by the Purchaser on the Systems as set
forth on Schedule 1 hereto.
"Purchased Capacity Shortfall": as defined in Section 2.3.
"Purchaser": as defined in the preamble hereof.
"Purchaser Facilities": as defined in Section 17.2 hereof.
"Purchaser POP" or "Purchaser Point of Presence": a facility designated by
the Purchaser for the origination or termination of Capacity.
"Rates": the rates from which the Purchase Price Payments are derived
which rates, at the Execution Date and prior to any permitted or required
adjustments as provided for in this Agreement, are set forth in Schedule I
hereto.
"Renewal Term": as defined in Section 4.1 hereof.
"Representatives" as defined in Section 17.4 hereof.
"Requested Start Date": as defined in Section 6.1 hereof.
"Required Capacity": Capacity which the Grantor is required to provision
upon request by the Purchaser in accordance with the Network Deployment Plan
(and, if applicable, as reflected in specific Service Orders) at the Rates or,
in the case of that portion of Required Capacity which is also Designated
Off-Net Capacity, at the Off-Net Rate.
"Required Capacity Shortfall": as defined in Section 2.2 hereof.
"Second-in Party": as defined in Section 7.1 hereof.
"Service Affecting": a condition in the System which results in a loss or
degradation of service except for a loss or degradation of fifty (50)
milliseconds or less.
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"Service Intervals": the Grantor's time periods for responding to the
Purchaser's requests for Capacity as defined in Section 6.1 hereof.
"Service Intervals and System Performance Standards": the System
technical performance levels, specifications and service intervals as set
forth on Schedule 1.
"Service Orders": as defined in Section 6.1 hereof.
"Shortfall Carrier": as defined in Section 2.2 hereof.
"Sub-DS-3 Backbone Agreement": as defined in Section 9.1 hereof.
"Sub-DS-3 Capacity": as defined in Section 9.1 hereof.
"Sub-DS-3 Carrier": as defined in Section 9.1 hereof.
"System": the Grantor's existing multimedia backbone network and to
be constructed additional general use network facilities, including
optronics, digital encoders/decoders, telephone lines and microwave
facilities, and as described in Schedule 1. Except as expressly set forth
otherwise, the System shall be bounded in all cases at a Grantor POP. The
term "System" shall not be construed to include any Local Access.
"Taxes": as defined in Section 11.1 hereof.
"Term": as defined in Section 4.1 hereof.
"Third-Party Service Provider": a third-party provider of
telecommunications services which shall include all Backbone Agreement
Service Providers.
"Total Purchase Price": the sum of the Initial Payment and each
Purchase Price Payment payable by the Purchaser to the Grantor for the IRU
of the Capacity.
1.3 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any schedule, exhibit or annex or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. The words
include, includes and including shall be deemed to be followed by the phrase
"without limitation."
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SECTION 2. IRU FOR CAPACITY
2.1 GRANT OF IRU. Effective on the Initial Payment Date, the Grantor
grants to the Purchaser, for the term of this Agreement, an IRU in the Adjusted
Purchased Capacity for which payment has been made and shall be made in
accordance with Sections 3.1 and 3.2 of this Agreement.
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(b) Any Capacity that the Grantor provides Off-Net must at least meet
the minimum technical performance standards and service intervals that the
relevant Third-Party Service Provider regularly offers to its customers.
(c) Notwithstanding anything in this Agreement to the contrary, the
parties hereto agree that the Grantor shall only be obligated to provide
Capacity at the Rates at the times indicated by the Network Deployment Plan.
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2.3 PURCHASER FAILURE TO USE PURCHASED CAPACITY. ****
(b) As of and from the fifth (5th) anniversary of the Execution Date,
the Purchaser's Purchase Price Payments for each succeeding twelve (12) month
period (each, an "Annual Period") shall be at least equal to fifty-four million
dollars ($54,000,000) (the "Annual Commitment"). In the event that the Purchaser
fails to satisfy the Annual Commitment in any Annual Period on the date which is
forty-five (45) days after the expiration of any such Annual Period, the
Purchaser shall be required to pay to the Grantor an amount equal to the
difference between the Annual Commitment and the aggregate Purchase Price
Payments made during such Annual Period.
2.4 EARLY INCREASES IN USE OF CAPACITY. In any month that the
Purchaser's use of Capacity on the System reaches a month's Purchased Capacity
associated with a succeeding year, at the Purchaser's sole option and upon at
least five (5) days written notice to the Grantor, the Purchaser, commencing
with the next succeeding month, shall be subject to such future month's (and
each succeeding month's) Purchased Capacity and shall be entitled to the Rates
associated with such future time periods with respect to all subsequent
Purchased Capacity (including, if applicable, any Required Capacity that
exceeds the Purchased Capacity).
2.5 NETWORK DEPLOYMENT PLAN AMENDMENTS. (a) Generally. In conjunction
with each Plan Adjustment Date, the Purchaser shall have the right to propose
amendments to the Network Deployment Plan and the Grantor agrees to use
reasonable efforts to accommodate any amendments proposed by the Purchaser.
Proposed amendments to the Network Deployment Plan may relate to any of the
items described in the definition of Network Deployment Plan or included in the
Network Deployment Plan.
(b) Procedures for Amendments and Effectiveness. If the Purchaser
desires to amend the Network Deployment Plan, it shall, within ninety (90) days
prior to each Plan Adjustment Date, commence consultations with the Grantor
with respect to any proposed amendments to the Network Deployment Plan. If the
Grantor agrees to the proposed amendments, such amendments shall become
effective as of the Plan Adjustment Date and Schedule 2 shall be amended to
reflect the new Network Deployment Plan. Failure to agree to
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any amendment to the Network Deployment Plan shall not in any way reduce the
Purchaser's obligations with respect to Purchased Capacity. Notwithstanding
anything in this Agreement to the contrary, the Purchaser may place a Service
Order with respect to a Circuit which is not associated with Designated
Capacity or Designated Off-Net Capacity subject to availability and such
Service Order shall not be deemed to be an amendment of the Network Deployment
Plan as it relates to Designated Capacity and Designated Off-Net Capacity.
(c) Initial Network Deployment Plan. Notwithstanding anything in this
Agreement to the contrary, the Initial Network Deployment Plan shall include
Designated Capacity, Designated Off-Net Capacity and Designated Capacity
Exceptions.
2.6 PREFERRED CAPACITY PROVIDER. Provided that neither the Grantor nor the
Purchaser is in default with respect to any provision of this Agreement and the
Purchaser has fulfilled its obligations with respect to the Purchased Capacity,
the parties agree as follows: with respect to Capacity associated with city
pairs indicated in the Initial Network Deployment Plan under the columns headed
"On-Net PLs Now" and "On-Net PLs 12 Mo." and any additional Capacity added to
the Network Deployment Plan in accordance with the provisions of Section 2.5,
the Purchaser shall have the right to solicit bids relating to such Capacity
from Third-Party Service Providers and, in the event that the Purchaser shall
receive a bona fide written offer from such Third-Party Service Provider
relating to the provisioning of such Capacity, the Purchaser shall be obligated
to take such bona fide written offer to the Grantor and the Grantor shall have
a right of first refusal to match the price and terms of such bona fide written
offer. In the event that the Grantor elects to match the price and terms of
such bona fide written offer, the Purchaser shall be obligated to provision
such Capacity with the Grantor. Except as set forth in this Section and as
otherwise provided for pursuant to this Agreement, the Purchaser shall not be
obligated to provision capacity with the Grantor.
SECTION 3. PAYMENT FOR CAPACITY
3.1 INITIAL PAYMENT. Upon the execution and delivery of this Agreement,
the Purchaser shall make the Initial Payment to the Grantor's Account, in
immediately available funds.
3.2 PURCHASE PRICE PAYMENTS. In exchange for the IRU interest in the
Capacity granted pursuant to this Agreement, the Purchaser shall, on or before
each Due Date, pay to the Grantor's Account, in immediately available funds,
the applicable Purchase Price Payment. Except as set forth in Section 2.3 and
as otherwise specifically set forth in this Agreement, the Purchaser shall not
be relieved of its obligation to make the Purchase Price Payments to the
Grantor. Notwithstanding anything contained in this Agreement to the contrary,
upon the payment to the Grantor's Account of the Initial Payment with respect
to the Capacity, the Purchaser shall be permitted to use such Capacity in
accordance with the terms of this Agreement, including the procedures for
ordering services set forth in Section 6.
3.3 ****
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3.4 PAYMENTS FOR OTHER SERVICES. The Purchaser shall be required to
make, at the request of the Grantor, additional payments for Other Services
requested by the Purchaser in accordance with the terms of this Agreement.
3.5 PAYMENTS GENERALLY. All payments under this Agreement shall be
made in accordance with the provision of Section 11.
3.6 FILINGS. The Purchaser shall, at its expense, take all such
actions and make all such filings and recordings as are reasonably requested
by the Grantor to establish, perfect and protect the Grantor's interest in the
IRU and the Adjusted Purchased Capacity. The Purchaser hereby represents and
warrants that its chief executive office is located at the address indicated in
Section 17.5. The Purchaser agrees to promptly notify the Grantor of any change
in such location.
SECTION 4. DURATION OF AGREEMENT
4.1 TERM. This Agreement shall become effective on the day and year
set forth in the preamble hereof (the "Effective Date") and shall continue in
operation, unless suspended or terminated by either party in accordance with
Section 15, until the twentieth (20th) anniversary of the Execution Date (the
"Term") and shall, thereafter, be deemed to be renewed for successive one (1)
year periods (each, a "Renewal Term"), unless either party provides written
notice to the other party of its intent to terminate this Agreement not more
than ninety (90) or less than sixty (60) days prior to the beginning of any
Renewal Term. The suspension or termination of this Agreement (whether pursuant
to this Section or otherwise) shall not relieve the Purchaser or the Grantor
from any liabilities arising prior to such suspension or termination.
Notwithstanding the expiration of the Term pursuant to this Section 4.1, any
Circuit or Other Service being provided to the Purchaser pursuant to this
Agreement shall continue to be provided pursuant to the terms
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of this Agreement until the expiration date indicated in the relevant Service
Order (or service order relating to any Other Service) applicable to such
Circuit or Other Service (any such period, and "Extension Period"). The
Purchaser shall not be entitled to order any new Circuit or Other Service
during any such Extension Period.
SECTION 5. SYSTEM
OPERATION AND MAINTENANCE
5.1 SYSTEM OPERATION AND MAINTENANCE. (a) The Grantor shall use
commercially reasonable efforts to cause the System to be maintained in
efficient working order and in accordance with industry standards and the
standards set forth in Schedule 1 hereto; provided that the parties hereto
agree that the specifications set forth in Schedule 1 shall not apply to Local
Access or any service provided Off-Net. The Grantor represents that it will
provide routine, preventive and corrective maintenance for the System in a
manner at least in accordance with prudent industry standards.
(b) The Grantor shall have sole responsibility for negotiating, executing
and administering contracts and all other aspects related to the construction,
operation, maintenance and repair of the System.
(c) The Grantor shall initiate and coordinate planned maintenance (or
shall cause such action to occur), on the System (which may include the
deactivation of the affected part of the System). The Grantor shall advise the
Purchaser in writing at least twenty (20) days (or such shorter period as may be
agreed) prior to initiating a planned maintenance operation via E-Mail (or via
the Grantor's electronic trouble ticket system when implemented), of the timing
and scope of such planned maintenance operation. Within five (5) days of such
notice, the Purchaser shall respond to the Grantor with regard to such planned
maintenance operation and, in the event the Purchaser has objections to such
planned maintenance operation, within five (5) days of the Purchaser's response,
the parties shall mutually agree to a satisfactory approach to address the
Purchaser's concerns and to permit the planned maintenance operation to be
accomplished. The Grantor shall not be obligated to give notice of any planned
or unplanned service outage that is not Service Affecting.
(d) In the event of an emergency condition, as defined by the Grantor's
internal fiber maintenance procedures, the Grantor shall be entitled to take
whatever action it deems necessary to repair the cause of any such emergency
condition with or without advance notice to the Purchaser; provided, however,
that the Grantor (i) shall share, on a confidential basis, its definition of an
emergency condition under its internal fiber maintenance procedures (as such
definition may be amended from time to time), (ii) shall provide notice to the
Purchaser of such emergency condition as soon as possible and (iii) shall keep
the Purchaser apprised of the status of such emergency condition.
(e) In the event of disruption of service due to a Force Majeure Event or
other emergency, the Grantor shall use commercially reasonable efforts to cause
service to be restored as quickly as reasonably possible, and the Grantor shall
take such measures as are reasonably necessary to obtain such objective.
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(f) In no event shall the Grantor be liable to the Purchaser for any
credits or damages resulting from outage or degradation of service during a
planned maintenance operation.
SECTION 6. NOTIFICATION
OF USE OF CAPACITY
6.1 REQUESTS FOR CAPACITY AND SERVICE INTERVALS. (a) Orders for any
Circuits to be provided hereunder or increases in the Purchaser's use of
Capacity in accordance with Required Capacity (or otherwise) shall be requested
by the Purchaser hereunder on the Grantor's form of Service Order in effect from
time to time (the current form of which is attached hereto as Exhibit B) or on
the Purchaser's forms, in either case accepted in writing by the Grantor
("Service Orders"). Each Service Order shall reference this Agreement and will
indicate a requested start date (the "Requested Start Date") for the Circuit,
the desired term of the Circuit specific city pairs, applicable bandwidth,
whether the Circuit(s) are to be expedited or provided in normal intervals and
any other parameters required to be included in the Service Order. The Grantor
shall acknowledge receipt of the Service Order within twenty-four (24) hours (an
"Acknowledgement"). Within forty-eight (48) hours of Acknowledgement, the
Grantor shall advise the Purchaser as to availability of the Circuit and the
associated Capacity and if the Circuit and the associated Capacity and if the
Circuit and the associated Capacity is not to be provided On-Net, the carrier
providing the Circuit and the associated Capacity. Within three (3) days of
Acknowledgment, the Grantor shall advise as to the need for any Letter of Agency
or Connecting Facilities Assignment. Within seven (7) days of Acknowledgement,
the Grantor will provide a Design Layout Record. The Grantor shall be obligated
to meet the foregoing time frames and any additional time frames provided for in
Schedule 1 or be subject to the Purchaser's remedies as set forth in Schedule 1.
The parties agree that the inclusion of any Circuit on the Initial Network
Deployment Plan or subsequent Network Deployment Plans shall be deemed to be a
Service Order; provided that the preceding clause shall not (i) relieve the
Purchaser and the Grantor of their obligations to act in accordance with the
other agreements of this Section and (ii) limit the Purchaser's ability to order
Capacity in excess of that indicated in a Network Deployment Plan (orders for
Capacity in excess of that indicated in a Network Deployment Plan are subject to
availability).
(b) The Grantor shall make reasonable efforts to provide the requested
Circuit and the associated Capacity on the System on the Requested Start Date.
Service with respect to such Circuit and the associated Capacity shall be
deemed to begin on the date that (i) the Grantor provides the Purchaser with
written confirmation that the Grantor has tested the Circuit and that the
Circuit meets the Systems technical performance levels and specifications as
set forth in Schedule 1 and (ii) the Purchaser accepts the Circuit, such
acceptance not to be unreasonably withheld (the "Actual Start Date").
(c) The Purchaser may request one (1) or more delays in the Actual Start
Date of an individual Circuit provided that (i) it provides the Grantor a
written delay request no later than five (5) Business Days prior to the
Requested Start Date or the delayed Requested Start Date, as the case may be,
and (ii) the aggregate number of the days requested by such delay request or
requests do not exceed thirty (30) days from the Service Order's original
Requested Start Date. At the expiration of such thirty (30) day period, if the
Grantor has complied with the provisions of the preceding paragraph, the
Purchaser may no longer delay the Actual Start Date
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of such individual Curcuit and Purchase Price Payments with respect to such
Circuit shall commence accruing.
(d) Any conflicting, different or additional terms and conditions
contained in the Purchaser's acknowledgment or Service Order or elsewhere and
not contemplated by the terms of this Agreement are objected to by the Grantor
and shall not constitute a part of this Agreement. No action by the Grantor
(including provision of Capacity or Other Services to the Purchaser pursuant to
such Service Order) shall be construed as binding or estopping the Grantor with
respect to such term or condition, unless the Service Order containing said
specific term or condition has been signed by an authorized headquarters
representative of the Grantor.
SECTION 7. ADDITIONAL
SERVICES AND RELATED FEES
7.1 INTERCONNECTION, LOCAL ACCESS AND ANCILLARY SERVICES. (a)
Interconnection. (i) The Grantor shall, on behalf of and upon the request of the
Purchaser, obtain telecommunications facilities in a particular city to which
Capacity is to be provided pursuant to the Network Deployment Plan connecting a
Purchaser POP to a Grantor POP in a different location in the same city or
metropolitan area ("Interconnection") which interconnection shall be
substantially dedicated to origination or termination of Capacity provided to
the Purchaser pursuant to this Agreement. As applicable, the Purchaser will
execute a Letter of Agency (as shall be set forth in Exhibit C hereto)
authorizing the Grantor to interact directly with the provider or providers of
such Interconnection. **** Nothing here in shall prevent the Purchaser from
arranging for its own Interconnection at its sole cost and expense; provided
that the Grantor shall have the right to test such Interconnection for
conformance to its interconnection specifications and the Grantor shall not be
obligated to accept independently arranged Interconnection unless it meets the
Grantor's interconnection specifications.
(ii) If the Purchaser requests Interconnection to be provided by the
Grantor, the Grantor shall be responsible for the provisioning and the initial
testing of any such Interconnection, and any provisioning and initial testing
shall be reasonably coordinated with the applicable Requested Start Date.
(b) Local Access. (i) The Grantor shall, on behalf of and upon the
request of the Purchaser, obtain telecommunications facilities connecting a
Grantor POP to a designated customer of the Purchaser or other third-party
("Local Access"). As applicable, the Purchaser will execute a Letter of Agency
authorizing the Grantor to interact directly with the provider or providers of
such Local Access. The Purchaser shall be responsible for all fees and costs
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incurred by the Grantor for any such Local Access. Nothing herein shall prevent
the Purchaser from arranging for its own Local Access at its sole cost and
expense.
(ii) If the Purchaser requests Local Access to be provided by the
Grantor, the Grantor shall be responsible for the provisioning and the initial
testing of any such Local Access, and any provisioning and the initial testing
shall be reasonably coordinated with the applicable Requested Start Date.
(iii) The Grantor agrees that nay and all charges associated with
Local Access shall not exceed the sum of the costs that the Purchaser would
otherwise pay the same Third-Party Service Provider for the relevant Local
Access.
(c) Interconnection and Local Access Delays. In connection with
the provision of Interconnection and Local Access, the Purchaser acknowledges
that the timely provisioning of such services may be dependent on the
performance of a Third-Party Service Provider. The Grantor agrees that it shall
have a duty to exercise reasonable judgement in (i) the selection of all
Third-Party Service Providers and (ii) the monitoring and oversight of the
performance of any service provided by a Third-Party Provider. The Purchaser
agrees that, other than as set forth in the preceding sentence, the Grantor
shall have no liability whatsoever for delays occasioned by Third-Party Service
Providers.
(d) Ancillary Services and Fees. The parties acknowledge that the
Purchaser may also request certain other ancillary services ("Ancillary
Services") from the Grantor and the Grantor shall make reasonable efforts to
provide such service, which such Ancillary Services may consist of (i) requests
by the Purchaser to the Grantor to expedite the availability of Capacity to a
date earlier than in accordance with the Network Development Plan, (ii) a
request for a redesign of Capacity occasioned by the receipt of inaccurate
information from the Purchaser and (iii) a request by the Purchaser for the
Grantor to use routes or facilities other than those indicated by the Network
Development Plan.
(e) Establishment of Costs and Adjustments. Any recurring and
non-recurring charges related to either Interconnection, Local Access or
Ancillary Services shall be established as of the Grantor's acceptance of the
Service Order related thereto; provided that, in the case of Interconnection,
such charges shall also be subject to the provisions of Section 7.1(a). The
Grantor shall be entitled to pass through to the Purchaser fifty percent (50%)
of any increase in recurring costs related to Interconnection, and/or one
hundred percent (100%) of any increase in recurring costs related to Local
Access and/or Ancillary Services to the extent of any increases in such costs.
7.2 COLLOCATION SERVICES. In the event the parties should desire
to collocate facilities with one another ("Collocation Services"), the parties
will execute a Collocation Agreement and a Collocation Service Order
substantially in the form of the Collocation Agreement and Collocation Service
Order to be included in Schedule 4, upon the terms and at the prices set forth
in such Collocation Agreement and Collocation Service Order.
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SECTION 8. THE BACKBONE AGREEMENTS
8.1 THE BACKBONE AGREEMENTS. (a) Generally. In accordance with the terms
of this Section 8, the Grantor may provision Capacity to the Purchaser pursuant
the Backbone Agreements. Capacity provided to the Purchaser pursuant to the
Backbone Agreements shall be on the terms and conditions of each respective
Backbone Agreement and on the terms and conditions of this Agreement. In the
event of any conflict between the terms and conditions of a Backbone Agreement
and this Agreement, the terms and conditions of such Backbone Agreement shall
prevail (it being understood that this includes all technical standards and
service provisioning intervals included in each Backbone Agreement).
(b) Assignment and Assumption. Pursuant to the Assignment and Assumption
Agreements, the Purchaser shall assign to the Grantor, and the Grantor shall
assume, such of the Purchaser's right, title and interest in the Backbone
Agreements as is set forth in each Assignment and Assumption Agreement.
Notwithstanding the Assignment Agreement Execution Date, the Purchaser
covenants that each assignment and assumption of a Backbone Agreement shall
result in an assignment by the Purchaser and an assumption by the Grantor of a
Backbone Agreement which contains terms at least as favorable to the Grantor
on such date as the terms that the Purchaser was subject to as of December 31,
1997. The Grantor agrees that, upon the request of the Purchaser, it shall use
commercially reasonable efforts to assist the Purchaser in causing the
Third-Party Service Providers party to the Backbone Agreements to enter into
and execute the Assignment and Assumption Agreements.
(c) Liabilities Pre-Dating the Effectiveness of Assignment and
Assumption. The Purchaser shall retain any and all claims and/or liabilities
under each of the Backbone Agreements which accrued prior to the effective date
(an "Assignment Agreement Effective Date") of the relevant Assignment and
Assumption Agreement (regardless of the date on which such liability is
discovered). The Purchaser agrees that such liabilities may include, in each
case as of the Assignment Agreement Effective Date of the relevant Assignment
and Assumption Agreement, currently due and unpaid balances, any and all
delinquent payments and associated penalties and any and all back-billing
disputes. Without in any way limiting the effect of the preceding sentence, the
Grantor agrees to endeavor to resolve, on behalf of the Purchaser and at
Purchaser's expense, any back-billing dispute which accrued prior to any
relevant Assignment Agreement Effective Date relating to an affected Backbone
Agreement (provided that notice of any such dispute is received after any such
Assignment Agreement Effective Date) and the Purchaser agrees that it will
cooperate fully in any such effort.
(d) Arrangement with MCI. The parties hereto agree that with respect to
the Purchaser's existing contract with MCI (the "MCI Backbone Agreement"), the
Grantor and the Purchaser shall work together in good faith to enable either
(i) the Purchaser, the Grantor and MCI to enter into an Assignment and
Assumption Agreement with respect to the "private lines" portion of the MCI
Backbone Agreement or (ii) the Grantor and MCI to enter into a "private lines"
backbone service agreement upon terms and conditions satisfactory to the
Grantor and the Purchaser and such agreement shall be deemed to replace the MCI
Backbone Agreement.
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(e) Exhibit A. With respect to each Backbone Agreement, the parties
hereto agree to identify on Exhibit A and periodically update such exhibit in
order to ensure that it at all times reflects (i) all Circuits being provisioned
pursuant to each Backbone Agreement and (ii) the Minimum, if any, pursuant to
each Backbone Agreement. The Purchaser agrees that it shall, as of any
Assignment Agreement Execution Date, represent and warrant to the Grantor that
Exhibit A is materially accurate and complete; provided, however, that no
failure on the part of the Purchaser to identify a Circuit shall in any way
relieve the Purchaser of its responsibility to make payments with respect to
such Circuit.
(f) Access to Information and Continuing Cooperation. After the Initial
Payment Date, the Purchaser agrees to (i) provide the Grantor reasonable access
to its all of its records, books and all other documents and data associated
with each Backbone Agreement and (ii) cooperate, to the extent reasonably
requested by and at no cost to the Grantor, with the Grantor in the
administration of the Backbone Agreements, it being understood and agreed that
such cooperation may include the generation of certain information relating to
the Backbone Agreements required by the Grantor.
8.2 OTHER AGREEMENTS RELATING TO THE BACKBONE AGREEMENTS. Until such
time as the term of each of the Backbone Agreements (as of the date hereof)
shall expire, notwithstanding anything in this Agreement to the contrary, (i)
the Grantor shall be entitled to provide Capacity to the Purchaser pursuant to
this Agreement via the Backbone Agreements and the Purchaser shall pay for such
capacity at the rates stated in each relevant Backbone Agreement and shall use
(or pay for) at least the Minimum, if any, associated with each Backbone
Agreement, (ii) provided that the Purchaser is not in breach of any of its
payment obligations under this Agreement, the Grantor shall not be permitted to
disconnect any Capacity provided to the Purchaser pursuant to the Backbone
Agreements unless and until the Grantor can and does provision such Capacity
onto the System and will, in any event, ensure that all Purchased Capacity (and,
if necessary, Required Capacity) shall at least make use of the Minimums, (iii)
the Grantor shall be required to migrate any Capacity currently being provided
pursuant to each Backbone Agreement above the minimum commitment (the "Excess")
provided for therein onto the System prior to or upon the one (1) year
anniversary of the date on which the Assignment and Assumption Agreement
relating to each such Backbone Agreement is executed (an "Assignment Agreement
Execution Date") and, whether or not such migration is accomplished, as of such
date the Management Fee shall no longer apply to such Excess, and the Rates
shall apply to such Excess, (iv) subject to the provisions of the preceding
clause (ii) of this paragraph, the Grantor shall be required to migrate any
Capacity currently being provided pursuant to the Backbone Agreements
constituting the minimum commitments (the "Minimum") provided for therein onto
the System upon the two (2) year anniversary of each Assignment Agreement
Execution Date and, whether or not such migration is accomplished, as of such
date the Management Fee shall terminate, and the Rates shall apply to such
Minimum. In the event that the Grantor migrates Circuits which constitute the
Excess onto the System prior to the date referred to in the receding clause
(iii), the Capacity used in connection with such Circuit shall no longer be
subject to the Non-Recurring and Monthly Recurring Charges and shall be subject
to the Rates.
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8.3 EXPIRATION OF BACKBONE AGREEMENTS. Upon expiration of each of the
Backbone Agreements, the Capacity governed thereby shall be provisioned onto
the System or be provided Off-Net as provided for under this Agreement.
8.4 PAYMENTS RELATING TO THE BACKBONE AGREEMENTS. Subject to the
provisions of Section 8.2, the Purchaser agrees to pay to the Grantor (i) the
monthly recurring charges, non-recurring and other related charges, relating to
the use of Circuits and the associated capacity pursuant to each Backbone
Agreement (the "Non-Recurring and Monthly Recurring Charges") and (ii) a
management fee (the "Management Fee"). The Management Fee is set forth on
Schedule 5.
8.5 CHANGES IN THE GRANTOR'S CONTRACTUAL RELATIONS WITH BACKBONE AGREEMENT
SERVICE PROVIDERS. In the event that the Grantor (i) enters into any amendment
with a Backbone Agreement Service Provider to amend the terms of any Backbone
Agreement and such amendment results in more competitive pricing of the capacity
provided for pursuant to such Backbone Agreement or (ii) enters into an
additional contract or contracts with any Backbone Agreement Service Provider
for the provisioning of capacity and the effect of any such new agreement is to
lower the Grantor's overall cost of the total amount of capacity provided by
such Backbone Agreement Service Provider to the Grantor, the Grantor agrees that
it shall inform the Purchaser of any such circumstance described in either of
the preceding clauses (i) or (ii) and shall enter into discussions with the
Purchaser in order to renegotiate the Backbone Payments to a level that will
pass through to the Purchaser the benefit of such cost savings; provided,
however, that the Grantor shall not be obligated, as a result of one of the
circumstances described in the preceding clause (i) or (ii), to offer to the
Purchaser any cost savings that would result in rates lower than the Rates.
SECTION 9. SUB-DS-3 CAPACITY
9.1 CAPACITY BELOW DS-3 LEVEL. Notwithstanding anything in this Agreement
to the contrary, for at least as long as the current term of each Backbone
Agreement which provides for the provisioning of capacity below the DS-3 Level
(each such Backbone Agreement, a "Sub-DS-3 Backbone Agreement") is still in
effect, the Purchaser shall have the right to request the Grantor to order from
and negotiate with the carriers party to such Sub-DS-3 Backbone Agreements (each
such carrier, a "Sub-DS-3 Capacity"). Circuits and the associated capacity at a
level below DS-3 ("Sub-DS-3 Capacity"). Notwithstanding anything in this
Agreement to the contrary, (i) the Grantor shall not be permitted to disconnect
any Sub-DS-3 Capacity except in accordance with the provisions of the relevant
Sub-DS-3 Backbone Agreement, (ii) Sub-DS-3 Capacity shall not be subject to the
provisions of Section 8.2(iii) and (iv), (iii) the Purchaser's use of Sub-DS-3
Capacity shall be included when determining whether the Purchaser has (A) used
the Minimums provided for in a Sub-DS-3 Backbone Agreement and (B) fulfilled its
obligations to use the Purchased Capacity and (iv) Sub-DS-3 Capacity used by the
Purchaser shall not be considered Capacity and shall not be accorded the Rates
provided for pursuant to this Agreement and, accordingly, all pricing and rates
with respect to any such Sub-DS-3 Capacity shall consist solely of the charges
made to the Sub-DS-3 Carrier by the Grantor pursuant to the terms of the
relevant Sub-DS-3 Backbone Agreement plus the Management Fee. After the
expiration of the Sub-DS-3 Backbone Agreements, the Purchaser may provision
Sub-DS-3
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Capacity in any manner that it may choose and the capacity used under any such
arrangements shall no longer be included in the Purchaser's use of Capacity
when determining whether the Purchaser has used the Purchased Capacity.
SECTION 10. SERVICE
ORDER CANCELLATION
10.1 SERVICE ORDER CANCELLATION AND DISCONNECTION OF SERVICE. (a)
Service Order Cancellation. The Purchaser may cancel any Service Order for which
service has not yet been established by providing written notification to the
Grantor thereof five (5) days prior to the applicable Requested Start Date. In
the event of such cancellation, (i) if the Service Order relates to a Circuit
and associated Capacity to be provided On-Net, the Purchaser shall pay to the
Grantor a cancellation charge in an amount equal to the previously waived
installation fees as set forth in Schedule 1 and (ii) if the Service Order
relates to a Circuit and associated Capacity to be provided Off-Net, the
Purchaser shall pay any amounts due to any Third-Party Service Provider that
are contractually provided for in the Grantor's contracts with any such
Third-Party Service Provider relating to the Service Order so cancelled.
(b) Service Disconnection. Once service has been established pursuant
to any Service Order, the Purchaser may, with respect to any Off-Net service or
Other Services provided by a Third-Party Service Provider, disconnect any such
service by providing the notice described in the preceding paragraph (a) and
paying any and all amounts due to any affected Third-Party Service Provider that
are contractually provided for in the Grantor's contracts with any such
Third-Party Service Provider relating to the affected Service Order. Following
an Actual Start Date, the Purchaser may, with respect to any On-Net service,
disconnect or reconfigure any such Circuit or service by providing sixty (60)
days' prior written notice to the Grantor. If any such disconnected or
reconfigured Circuit is a DS-3, OC-3 or OC-12 Circuit, the Purchaser shall have
no liability with respect to such disconnection or reconfiguration. If any such
disconnected or reconfigured Circuit is an OC-48 or OC-192 Circuit, the Grantor
shall be obligated to use reasonable efforts to redeploy such disconnected or
reconfigured Circuit in such a manner that will enable it not to recognize any
loss due to the Purchaser's disconnection or reconfiguration: provided that,
after the expiration of sixty (60) days from the date on which the Purchaser
gave notice to the Grantor of its intent to disconnect or reconfigure such
Circuit, if the Grantor has been unable to mitigate its loss in manner described
in the preceding clause, the Purchaser shall reimburse the Grantor for its costs
associated with the disconnection or reconfiguration of any such Circuit.
(c) Excusable Cancellation. Notwithstanding the foregoing, and upon
thirty (30) day's prior written notice to the other party, either the Purchaser
or the Grantor shall have the right, without cancellation charge or other
liability to the other party, to cancel the affected Service Order, if the
Grantor is prohibited by governmental authority from furnishing or the Purchaser
is prohibited from using such portion, or if any material rate or term contained
herein and relevant to the affected portion of any Service Order is
substantially changed by order of a court of competent jurisdiction to
adjudicate the matter so long as all appeals have been exhausted, the FCC, or
other local, state or federal government authority. Nothing contained in
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this Section 10.1(c) shall in any way be construed to reduce or limit the
Purchaser's obligations pursuant to Sections 2.3 and 3.2 hereof.
SECTION 11. PAYMENT TERMS
11.1 DUE DATE, INVOICES AND TAXES. All amounts stated on each monthly
invoice are due on the Due Date and the Purchaser agrees to remit payment to
the Grantor's Account by the applicable Due Date, except with respect to any
amounts disputed in good faith pursuant to Section 11.2 hereof. In the event
the Purchaser fails to make full payment to the Grantor's Account by the Due
Date, the Purchaser shall also pay a late fee in the amount of the lesser of
one and one half percent (1 1/2%) of the unpaid balance per month or the
maximum lawful rate under applicable state law which shall accrue from the Due
Date, except with respect to any amounts disputed in good faith pursuant to
Section 11.2 hereof. The Purchaser acknowledges and understands that all
charges are computed exclusive of any applicable federal (if any), state or
local sales, use, excise, value added, gross receipts, or privilege taxes,
duties, fees or similar liabilities (other than general income, real or
personal property taxes or duties imposed on the Grantor)("Taxes"). Any taxes
shall be paid by the Purchaser in addition to all other charges provided for
herein. Payment for all prorated monthly recurring charges (charges for
Capacity or Other Services provided for less than a calendar month), shall be
billed following the receipt of any such Capacity or Other Service unless
and/or until a tax exemption certificate is provided to the Grantor by the
Purchaser. Monthly recurring charges for full months of service will be
invoiced in advance.
11.2 INVOICE ADJUSTMENTS. Either party hereto may, in good faith,
request a billing adjustment for a period of two (2) years after the Due Date of
an invoice, or two (2) years after the date a service is rendered, whichever is
later. Any notice of a billing dispute by a party hereto must be in writing and
must include documentation substantiating the dispute. The parties will make a
good faith effort to resolve billing disputes as expeditiously as possible. The
successful party in any billing dispute shall be entitled to interest at a rate
of 1.5% per month from the date the relevant dispute is raised on any amounts
withheld by the other party during the pendency of any dispute.
11.3 AFTER IMPOSED TAXES OR CHARGES. If any sales taxes, valued added
taxes or charges or impositions are asserted against the Grantor after, or as a
result of, the Purchaser's use of services or any Other Service by any local,
state, national, international, public or quasi-public governmental entity or
foreign government or its political subdivision, including, any tax or charge
levied to support the Universal Service Fund contemplated by the
Telecommunications Act of 1996, the Purchaser shall be solely responsible for
such taxes, charges or impositions and the Purchaser agrees to pay any such
taxes, charges or impositions and hold the Grantor harmless from any liability
or expense associated with such taxes, charges or impositions unless and/or
until a tax exemption certificate is provided to the Grantor by the Purchaser.
SECTION 12.
12.1 [this section has intentionally been left blank]
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SECTION 13. REPRESENTATIONS AND INDEMNITY
13.1 REPRESENTATIONS. (a) Representations of the Grantor. To induce
the Purchaser to enter into this Agreement, the Grantor hereby represents and
warrants to the Purchaser that:
(i) it is a corporation duly organized, validly existing and in good
standing under the laws of Delaware;
(ii) it has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged;
(iii) it has the corporate power and authority, and the legal right,
to make, deliver and perform this Agreement and the Assignment and
Assumption Agreements and has taken all necessary corporate action to
authorize the transactions contemplated hereunder and under the Assignment
and Assumption Agreements on the terms and conditions of this Agreement
and the Assignment and Assumption Agreements and to authorize the
execution, delivery and performance of this Agreement and the Assignment
and Assumption Agreements;
(iv) no consent or authorization of, filing with, notice to or other
act by or in respect of, any governmental authority or any other Person is
required in connection with the transactions contemplated by this
Agreement or the Assignment and Assumption Agreements or with the
execution, delivery, performance, validity or enforceability of this
Agreement and the Assignment and Assumption Agreements;
(v) it is in compliance with all requirements of law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the Grantor's
ability to perform its obligations hereunder and under the Assignment and
Assumption Agreements;
(vi) this Agreement and any Assignment and Assumption Agreement
entered into prior to or on the Execution Date has been duly executed and
delivered on behalf of the Grantor;
(vii) this Agreement and any Assignment and Assumption Agreement
entered into prior to or on the Execution Date constitute the legal, valid
and binding obligations of the Grantor enforceable against the Grantor in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(viii) the execution, delivery and performance of this Agreement and
any Assignment and Assumption Agreement entered into prior to or on the
Execution Date
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and the transactions contemplated hereunder and under the Assignment and
Assumption Agreements will not violate any requirement of law or
contractual obligation of the Grantor:
(ix) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of the
Grantor, threatened by or against the Grantor or against any of its
respective properties or revenue (a) with respect to this Agreement or the
Assignment and Assumption Agreements or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected
to have a material adverse effect on the Grantor's ability to perform its
obligations hereunder and under the Assignment and Assumption Agreements;
(x) the Grantor is not in default and, to the best of its knowledge
after reasonable inquiry, knows of no existing circumstances that with the
passage of time or with notice would create a default under or with respect
to any of its contractual obligations in any respect which could reasonably
be expected to have a material adverse effect on the Grantor's ability to
perform its obligations hereunder and under the Assignment and Assumption
Agreements;
(xi) no requirement of law or contractual obligation of the Grantor
could reasonably be expected to have a material adverse effect on the
business, operations, property or condition (financial or otherwise) of the
Grantor; and
(xii) the Grantor or, pursuant to Section 16, its permitted assignee,
(A) is and, to the best of the Grantor's knowledge (or the knowledge of its
permitted assignee), shall remain the Person through which The Xxxxxxxx
Companies, Inc. engages in the telecommunications business, (B) owns all or
substantially all (whether directly or indirectly) of The Xxxxxxxx
Companies, Inc. telecommunications assets and (C) will inform the Purchaser
within a reasonable period of time of its knowledge of any proposed change
in The Xxxxxxxx Companies, Inc.'s corporate plans or strategy that would
impact the Grantor's ability (or its permitted assignee's ability, as the
case may be) to make the representations contained in the preceding clauses
(A) and/or (B).
(b) Representatives of the Purchaser. To induce the Grantor to enter
into this Agreement, the Purchaser hereby represents and warrants to the
Grantor that:
(i) it is a corporation duly organized, validly existing and in good
standing under the laws of Delaware;
(ii) it has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged;
(iii) it has the corporate power and authority, and the legal right,
to make, deliver and perform this Agreement and the Assignment and
Assumption Agreements and has taken all necessary corporate action to
authorize the transactions contemplated hereunder
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and under the Assignment and Assumption Agreements on the terms and
conditions of this Agreement and the Assignment and Assumption Agreements
and to authorize the execution, delivery and performance of this Agreement
and the Assignment and Assumption Agreements;
(iv) no consent or authorization of, filing with, notice to or other
act by or in respect of, any governmental authority or any other Person is
required in connection with the transactions contemplated by this Agreement
or the Assignment and Assumption Agreements or with the execution,
delivery, performance, validity or enforceability of this Agreement and
the Assignment and Assumption Agreements;
(v) it is in compliance with all requirements of law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the
Purchaser's ability to perform its obligations hereunder and under the
Assignment and Assumption Agreements;
(vi) this Agreement and any Assignment and Assumption Agreement
entered into prior to or on the Execution Date has been duly executed and
delivered on behalf of the Purchaser;
(vii) this Agreement and any Assignment and Assumption Agreement
entered into prior to or on the Execution Date constitute the legal, valid
and binding obligations of the Purchaser enforceable against the Purchaser
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(viii) the execution, delivery and performance of this Agreement and
any Assignment and Assumption Agreement entered into prior to or on the
Execution Date and the transactions contemplated hereunder and under the
Assignment and Assumption Agreements will not violate any requirement of
law or contractual obligation of the Purchaser;
(ix) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of
the Purchaser, threatened by or against the Purchaser or against any of
its respective properties or revenue (a) with respect to this Agreement or
the Assignment and Assumption Agreements or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected
to have a material adverse effect on the Purchaser's ability to perform
its obligations hereunder and under the Assignment and Assumption
Agreements;
(x) the Purchaser is not in default and, to the best of its knowledge
after reasonable inquiry, knows of no existing circumstances that with the
passage of time or with notice would create a default under or with
respect to any of its contractual obligations in any respect which could
reasonably be expected to have a material adverse
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effect on the Purchaser's ability to perform its obligations hereunder and
under the Assignment and Assumption Agreements;
(xi) no requirement of law or contractual obligation of the Purchaser
could reasonably be expected to have a material adverse effect on the
business, operations, property or condition (financial or otherwise) of
the Purchaser;
(xii) to the extent that the Purchaser is subject to regulation by
the FCC, this Agreement is an inter-carrier agreement not subject to the
filing requirements of Section 211(a) of the Communications Act; and
(xiii) the Purchaser, to its knowledge after reasonable inquiry, knows
of no event or basis which would prevent the Purchaser from meeting the
Minimums under the Backbone Agreements and, to its knowledge after
reasonable inquiry, knows of no dispute, claim or threatened action in
connection with the Backbone Agreements.
(c) Survival of Representations. The foregoing representations and
warranties shall survive the execution and delivery of this Agreement.
(d) Representations as of Each Plan Adjustment Date. As of each Plan
Adjustment Date, (i) the representations of the Grantor contained in clauses
(i), (ii), (v), (ix), (x), (xi) and (xii) of Section 13.1(a) shall be true and
correct in all material respects on and as of such date as if made on and as of
such date and (ii) the representations of the Purchaser contained in clauses
(i), (ii), (v), (ix), (x), (xi) and (xii) of Section 13.1(b) shall be true and
correct in all material respects on and as of such date as if made on and as of
such date.
13.2 INDEMNITIES. (a) Indemnification of the Grantor by the
Purchaser. Subject to Section 14, the Purchaser agrees to indemnify and hold
harmless the Grantor and its respective officers, directors, employees, agents
and representatives from and against any loss, damage, expense or cost arising
out of or in connection with: (i) any breach or violation by the Purchaser of
applicable law or governmental regulation, (ii) any claims of whatever nature
by third parties (including the Purchaser's customers) with respect to the
services provided by the Purchaser to such third parties, even if such services
incorporate the services of the Grantor and (iii) any breach or violation by
the Purchaser of its representations contained herein.
(b) Indemnification of the Purchaser by the Grantor. Subject to
Section 14, the Grantor agrees to indemnify and hold harmless the Purchaser and
its officers, directors, employees, agents and representatives from and
against any loss, damage, expense or cost arising out of or in connection with:
(i) any breach or violation by the Grantor of applicable law or governmental
regulation, (ii) any claims of whatever nature by third parties (including the
Grantor's customers) with respect to the services provided by the Grantors to
such third parties even if such service incorporate the services of the
Purchaser and (iii) any breach or violation by the Grantor of its
representations contained herein.
(c) Notification of Claim. In the event an indemnified party under
paragraph (a) or (b) above is notified of any action as to which it may seek to
be indemnified under such
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paragraph, it will promptly notify the party from which indemnification will be
sought and seek to consult with such party prior to taking any material action
with respect thereto.
SECTION 14. LIMITATIONS OF LIABILITY
14.1 LIMITATIONS OF LIABILITY. (a) Except as specifically provided for
otherwise in this Agreement, in no event shall the Purchaser or the Grantor be
liable to or through the other for consequential, incidental, indirect or
special damages, including loss of revenue, loss of business opportunity or the
costs associated with the use of external (outside the System) restoration
facilities including for any loss or damage sustained by reason of any failure
in or breakdown of the System or the facilities associated with the System or
for any interruption of service, whatever the cause and however long it shall
last.
(b) The Grantor shall not be liable to the Purchaser for any loss or
damage which may be suffered by the Purchaser as a result of, related to, or in
connection with, the Purchaser's compliance or non-compliance with any
applicable state or federal or other law related to the transfer of the IRU in,
or the use of, the Capacity.
(c) The Purchaser shall not be liable to the Grantor for any loss or
damage which may be suffered by the Grantor as a result of, related to, or in
connection with, the Grantor's non-compliance with any applicable state or
federal or other law related to the transfer by the Grantor of the IRU to the
Purchaser in, or the Grantor's operation, ownership or use of, the System.
(d) Neither the Purchaser nor the Grantor shall be liable to the other
for any loss or damage which may be suffered by such party by reason of any
Force Majeure Event. In the event of an occurrence of a Force Majeure Event, the
party claiming to be affected by a Force Majeure Event shall give prompt written
notice thereof to the other party, which such notice shall include a brief
description of the Force Majeure Event and shall, if possible, estimate the
duration of said Force Majeure Event. If the party affected by a Force Majeure
Event has complied with the provisions of the preceding sentence, such party
shall be excused from the performance of its obligations hereunder on a
day-to-day basis to the extent that the Force Majeure Event prevents, restricts
or interferes with such party's performance hereunder. The party affected by a
Force Majeure Event shall use commercially reasonable efforts under the
circumstances to avoid, rectify or remove the cause of such Force Majeure Event
and shall re-commence any prevented performance hereunder at the soonest
possible date.
(e) In no event shall the Grantor be liable to the Purchaser for any
credits or damages resulting from outage or degradation of service during a
planned maintenance operation.
SECTION 15. DEFAULT
15.1 PURCHASER DEFAULT. If the Purchaser fails to make any payment
(including any Backbone Payment) required by this Agreement on the applicable
Due Date, or if the Purchaser is otherwise in material breach of this Agreement,
and such payment default continues unremedied for a period of at least fifteen
(15) days or such other breach continues for a period
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of at least thirty (30) days, the Grantor may notify the Purchaser in writing of
such payment default or other breach and if full payment is not received or such
other breach is not fully remedied within ten (10) days of such notification,
the Grantor: (i) may suspend or terminate all or any portion of the Capacity or
Other Services provided to Purchaser hereunder, until such payment default or
other breach has been cured (including payment of default interest, if any) and
(ii) shall be entitled to pursue any and all rights and legal and equitable
remedies (including its rights and remedies to enforce the Purchaser's
obligations under this Agreement). The suspension or termination of this
Agreement shall not relieve the Purchaser of its obligation to make full payment
of all amounts incurred under this Agreement up to and including the date of
suspension. Following a suspension of service unless this Agreement has been
terminated, upon the Purchaser's payment in full of all amounts due hereunder in
accordance with the terms hereof, the Grantor shall be required to reinstitute
the Capacity or Other Services.
15.2 GRANTOR DEFAULT. (a) If the Grantor is in material breach of
this Agreement and such breach continues for a period of at least (30) days,
the Purchaser may notify the Grantor in writing of such breach and if such
breach is not fully remedied with fifteen (15) days of such notification, the
Purchaser shall, for so long as such breach continues, be entitled to pursue
any and all rights and legal and equitable remedies, including its rights and
remedies to enforce Grantor's obligations under this Agreement.
(b) Without in any way limiting the effect of the preceding
paragraph (a), the Grantor agrees that any breach of its representation or
change in circumstance which makes it impossible for its representations
contained in clause (xii) of Section 13.1(a) to be true and correct in all
material respects shall be deemed to be a default by the Grantor under this
Agreement.
SECTION 16. ASSIGNMENT AND
MERGER OR CONSOLIDATION
16.1 ASSIGNMENT. (a) This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns; provided that, except for the
assignment of the Purchaser's or the Grantor's rights under this Agreement to
one or more of the Purchaser's or the Grantor's lenders as security and except
as provided in paragraph (b) of this Section, neither this Agreement nor any of
the rights or interests hereunder shall be assigned, transferred or otherwise
disposed of or the obligations hereunder delegated by either party hereto
without the prior written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed. The filing of a bankruptcy
proceeding, voluntary or involuntary, shall constitute a notice of intent to
transfer under this Section.
(b) Each party hereto shall be permitted to assign, transfer or
otherwise dispose of any or all of their rights hereunder and delegate any or
all of their obligations hereunder to any entity controlled by, under the same
control as, or controlling, such party: provided, that any such assignment,
transfer or other disposition shall not release such party from its obligations
hereunder, unless the other party consents otherwise in writing, which consent
shall not be unreasonably withheld, conditioned or delayed (it being understood
that it is not unreasonable to
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withhold consent if the assignee or transferee is not as creditworthy as the
assignor). Each party shall give the party notice of any such assignment,
transfer or other disposition or any such delegation.
(c) Any transfer by a party to this Agreement of such party's
obligations or its rights hereunder which is in violation of this Section shall
be void and of no force and effect.
16.2 MERGER OR CONSOLIDATION. (a) Each of the Grantor and the
Purchaser covenants that it shall not consolidate or merge with or into any
Person, nor sell, transfer, convey or lease all or substantially all its
properties or assets as an entirety to any Person (any party the subject of such
a transaction, an "Affected Party"), unless: (i) the successor entity (the
"Successor Entity") formed by such consolidation or with or into which the
Affected Party is merged, or the Successor Entity that acquires by conveyance,
transfer or lease all or substantially all the Affected Party's assets as an
entirety, (A) shall be authorized under all applicable laws to perform the
obligations of the Affected Party under this Agreement to the same extent as the
Affected Party prior to such transaction, (B) shall not be financially insolvent
immediately after giving effect to such transaction, and (C) shall execute and
deliver to the other party hereto an agreement in form and substance reasonably
satisfactory to the other party hereto, containing an assumption by such
Successor Entity of the due and punctual performance of each provision of this
Agreement to be performed or observed by the Affected Party (which agreement
shall be deemed to be reasonably satisfactory to the other party hereto if such
party has not notified the Affected Party to the contrary within (30) days of
receipt thereof); and (ii) immediately prior to and immediately after giving
effect to such transaction, no default under this Agreement shall have occurred
and be continuing.
(b) Upon any such consolidation or merger, or any sale,
conveyance, transfer or lease of substantially all the assets of the Affected
Party in accordance with this Section 16.2, the Successor Entity formed by such
consolidation or with or into which the Affected Party shall be merged, or to
which such sale, conveyance, transfer or lease shall be made, shall succeed
to, and be substituted for, and may exercise every right and power and shall be
subject to each and every obligation of, the Affected Party under this
Agreement with same effect as if such Successor Entity had been a party to this
Agreement. No such sale, conveyance, transfer or lease of all or substantially
all the assets of the Affected Party shall have the effect of releasing the
Affected Party or any Successor Entity that shall theretofore have become such
in the manner prescribed in this Section 16.2 from its liability under this
Agreement.
SECTION 17. MISCELLANEOUS
17.1 CONTENT AND CERTAIN PARAMETERS REGARDING USE OF CAPACITY. The
Purchaser agrees (i) not to use the Capacity (or any Other Service) for any
unlawful purpose, including any use which constitutes or may constitute a
violation of any local, state or federal obscenity law and (ii) that, during
the Term, at least ten percent (10%) of its total use of Capacity shall
constitute interstate transmissions. The parties hereto acknowledge that from
time to time a portion or portions of the Purchaser's use of Capacity may be
intended for transmission upon a portion of the System that is a multimedia
fiber with respect to which the Grantor is contractually limited to use for
multimedia transmissions (i.e. video and radio transmission
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services and/or related applications, including, graphic, visual, imaging,
interactive and multimedia transmissions). In such event, the Purchaser agrees,
upon request from the Grantor , to identify the nature of its proposed use of
Capacity. Nothing in the preceding two sentences shall be construed in such a
manner as would relieve the Grantor of its obligation to provision Capacity on
the System pursuant to the terms of this Agreement.
17.2 PURCHASER FACILITIES. The Purchaser has sole responsibility
for installation, testing and operation of facilities, services and equipment
("Purchaser Facilities") other than those specifically provided by the Grantor
as part of the Capacity or Other Services as described in this Agreement or in
a Service Order. In no event will the untimely installation or non-operation of
the Purchaser Facilities relieve the Purchaser of its obligation to pay charges
for the Capacity or Other Services after the Actual Start Date.
17.3 TITLE TO EQUIPMENT. This Agreement shall not, and shall not
be deemed to, convey to the Purchaser title of any kind to any of the
transmission facilities, including all optronics, digital encoder/decoders,
telephone lines, microwave facilities or other facilities utilized in
connection with the Capacity; provided however that the Grantor acknowledges
that the Purchaser's IRU in the Capacity on the System entails the use of such
transmission facilities. Any equipment provided by the Purchaser must be
itemized on a schedule listing all such the Purchaser-provided equipment and
appended to the Service Order to which use of that equipment relates and the
Grantor shall not be obligated to provide any Ancillary Service for the
Purchaser if the Purchaser will be providing any of its own equipment unless
and until such equipment is itemized in accordance with this sentence.
17.4 PUBLICITY AND CONFIDENTIALITY. (a) Confidentiality. The
provisions of this Agreement and any non-public information, written or oral,
with respect to this Agreement ("Confidential Information") will be kept
confidential and shall not be disclosed, in whole or in part, to any Person
other than Affiliates, officers, directors, employees, agents or
representatives of a party (collectively, "Representatives") who need to know
such Confidential Information for the purpose of negotiating, executing and
implementing this Agreement. Each party agrees to inform each of its
Representatives of the non-public nature of the Confidential Information and to
direct such Persons to treat such Confidential Information in accordance with
the terms of this Section 17.4. Nothing herein shall prevent a party from
disclosing Confidential Information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of, or pursuant to
any law, regulation of any regulatory agency or authority (including any filing
that a party hereto may have to make with the Securities and Exchange
Commission of the United States), (iii) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (iv) to a party's legal
counsel or independent auditors, (v) to prospective lenders to the Grantor or
the Purchaser, and (vi) to any actual or proposed assignee, transferee or
lessee of all or part of its rights hereunder provided that such actual or
proposed assignee agrees in writing to be bound by the provisions of this
Section 17.4; provided, however, that if a receiving party is ordered or
required to disclose Confidential Information pursuant to either of the
preceding clauses (i) or (ii), such party shall promptly notify the other party
of the order or request and permit the disclosing party (at its expense) to
seek an appropriate protective order. Notwithstanding anything herein to the
contrary, each of the following shall be deemed to be excluded from provisions
hereof: any Confidential Information that is (A) already in the
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possession of, is known to, or is independently developed by the receiving
party, (B) or becomes publicly available through no fault of the receiving
party, (C) obtained by the receiving party from a third-party without breach by
such third-party of an obligation of confidence with respect to the
Confidential Information disclosed. The parties acknowledge that the Purchaser
will need to and will be permitted to disclose Confidential Information
(including, specifically, the System's performance standards) to potential
customers of the Purchaser subject to the prior written consent of the Grantor.
The Purchaser may seek such consent, including consent to disclose a redacted
version of this Agreement to multiple customers, which consent shall not be
unreasonably withheld, conditioned or delayed by the Grantor.
(b) Effect of Termination. Upon termination or expiration of this
Agreement for any reason, or upon request of the disclosing party, all
Confidential Information, together with any copies thereof, shall be returned
to the disclosing party or certified destroyed by the receiving party.
(c) Equitable Relief. The parties acknowledge that in the event
of a breach or threatened breach of the provisions of this Section 17.4,
remedies at law will be inadequate and that either party shall be entitled to
an injunction or other specific performance to enforce this provision,
provided, however, that nothing herein shall be construed as precluding the
injured party from pursuing further remedies.
(d) Publicity. The foregoing shall not restrict either party from
publicly announcing that it has entered into this Agreement with the parties
hereto, but without including any details contained in this Agreement.
Notwithstanding the foregoing, however, neither party shall issue a press
release concerning the execution of this Agreement without the prior written
consent of the other party.
17.5 NOTICE. Each notice, demand, certification or other
communication given or made under this Agreement shall be in writing and shall
be delivered by hand or by a recognized overnight delivery service or sent by
registered mail or by facsimile transmission to the address of the respective
party as shown below (or such other address as may be designated in writing to
the other party hereto in accordance with the terms of this Section):
If to the Purchaser: 0000 Xxxxx Xxxx Xxxxx
Xxxxx XXX Xxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Divisional Vice President, Network Planning
Fax No.:
Telephone:
With a copy to: 0000 Xxxxx Xxxx Xxxxx
Xxxxx XXX Xxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
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If to the Grantor: Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Contract Administration
Fax No.: (000) 000-0000
Telephone: (000) 000-0000
With a copy to: Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Any change to the name, address and facsimile numbers may be made at any time
by giving fifteen (15) days prior written notice in accordance with this
Section. Any such notice, demand or other communication shall be deemed to have
been received, if delivered by hand, at the time of delivery or, if sent by
overnight delivery service the date when delivered or, if posted, at the
expiration of seven (7) days after the envelope containing the same shall have
been deposited in the post maintained for such purpose, postage prepaid, or, if
sent by facsimile, at the date of transmission with written or telephone
confirmation of receipt.
17.6 INTEGRATION. This Agreement (including the attachments
hereto) represents the agreement of the parties hereto with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the parties hereto relative to the subject matter hereof not
expressly set forth or referred to herein or in the attachments hereto.
17.7 WRITTEN AMENDMENT. This Agreement shall not be modified or
amended except by a writing signed by authorized representatives of the parties
hereto.
17.8 RELATIONSHIP OF PARTIES. This Agreement shall not form a
joint venture or partnership or similar business arrangement among the Grantor
and the Purchaser and nothing contained herein shall be deemed to constitute a
partnership or joint venture or similar business arrangement nor shall any party
be deemed to be the agent or partner of any other party. No party shall have the
right to bind any other party.
17.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA.
17.10 NO THIRD PARTY BENEFICIARIES. This Agreement does not
provide and is not intended to provide third parties (including customers of the
Purchaser, any permitted transferee of the Capacity (other than a permitted
transferee of all the Purchaser's rights and obligations under this Agreement)
or any other permitted user of the Capacity) with any remedy, claim, liability,
reimbursement, cause of action, or any other right. Furthermore, the Purchaser
acknowledges that, except as set forth in any Service Order, it is not a third
party beneficiary of any agreement entered into by the Grantor.
17.11 ATTORNEYS' FEES. If a proceeding is brought for the
enforcement of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and other
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costs and expenses incurred in such action or proceeding in addition to any
other relief to which such party may be entitled.
17.12 SEVERABILITY. If any provision of this Agreement is found by an
arbitral, judicial or regulatory authority having jurisdiction to be void or
unenforceable, such provision shall be deemed to be deleted from this Agreement
and the remaining provisions shall continue in full force and effect.
17.13 NO WAIVER. The failure of either party to enforce any provision
hereof shall not constitute the permanent waiver of such provision.
17.14 SETTLEMENT OF DISPUTES. The parties hereto shall endeavor to settle
amicably by mutual discussions any disputes, differences, or claims whatsoever
related to this Agreement within sixty (60) days. The disputing party shall
give the other party written notice of the dispute in accordance with the
notice provision of this Agreement. The other party shall submit a response
within twenty (20) days after receiving said notice. The notice and response
shall include (a) a summary of the party's position and a summary of the
evidence and arguments supporting its position, and (b) the name of the
executive who will represent the party. The executives shall meet at a mutually
acceptable time and place within thirty (30) days of the disputing party's
notice and thereafter as often as they deem reasonably necessary to resolve the
dispute. If the matter has not been resolved within sixty (60) days of the
disputing party's notice, either party may pursue its rights and remedies
within a court of competent jurisdiction. All negotiations conducted pursuant
to this clause are confidential and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence and state
rules of evidence.
17.15 RIGHT TO AUDIT. No more than two (2) times in any twelve (12) month
period, the Purchaser shall have the right, at its sole expense, to appoint a
third-party consultant to audit the books and records of the Grantor to ensure
the Grantor's compliance with Section 3.3 hereof and the accuracy of any pass
through pricing. Any consultant appointed pursuant to the preceding sentence
must agree to treat the Grantor's records and books as confidential pursuant to
the Grantor's standard confidentiality agreement and may only disclose to the
Purchaser the fact that the applicable costs charged to the Purchaser do not
correspond to the Grantor's records (such permissible disclosure shall include
the precise amount of any such variance).
17.16 INTRASTATE INTEREXCHANGE SERVICE. Notwithstanding anything in this
Agreement to the contrary, the Purchaser may use any Interexchange Service
provided under this Agreement only if such Interexchange Service is used for
carrying interstate telecommunications traffic subject to the jurisdiction of
the FCC. The Grantor and its Affiliates shall not be obligated to make
available Interexchange Service on a Circuit with end points within a single
state unless the Purchaser represents in writing to the Grantor that such
Interexchange Service shall be used to carry interstate telecommunications
traffic. If it is determined at any time that any Interexchange Service is
subject to applicable state laws, regulations and/or tariffs, the Grantor or
its Affiliates may (i) provide such Interexchange Service pursuant to such
applicable state laws, regulations and/or tariffs or (ii) discontinue provision
of the affected Interexchange Service.
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17.17 Conflict of Law. Notwithstanding anything in this Agreement to the
contrary, the Grantor may immediately suspend the provision of Capacity or any
Other Service to the Purchaser, in whole or in part, if (i) the Grantor
determines that the provision of such Capacity or Other Service violates the
Communications Act (including the Telecommunications Act of 1996) in any
material manner or (ii) a change in federal or state law or promulgation of any
rule, regulation or order of the FCC or other governmental instrumentality
makes the Grantor's performance hereunder commercially impracticable in any
material manner.
17.18 No Conflicting Tariffs. The Grantor does not intend to file any
tariff in any jurisdiction that would materially change the Rates and the terms
and conditions of this Agreement. If such tariff is filed, and if such tariff
has the effect of increasing the rates and charges that the Purchaser pays
under this Agreement, the Grantor will remit to the Purchaser the difference
between the Rates and charges in this Agreement, and any increased rates and
charges that the Purchaser pays as a result of the tariff filing, on a
month-to-month basis, thirty (30) days after the Purchaser pays the higher
rates or charges.
17.19 Compliance with Law. Each party hereto shall use reasonable efforts
to comply with all laws, orders, regulations, directories, actions or requests
of the United States government or of a state or local government or any
instrumentality thereof in order to enable it to comply with its obligations
hereunder.
[rest of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the date first written above.
XXXXXXXX COMMUNICATIONS, INC., as
Grantor
By: /s/ ILLEGIBLE
------------------------------
Name:
Title:
INTERMEDIA COMMUNICATIONS INC.,
as Purchaser
By: /s/ XXX XXXXX
------------------------------
Name: Xxx Xxxxx
Title: EVP
36
SCHEDULE 1
TO THE
CAPACITY PURCHASE AGREEMENT
DATED JANUARY 5, 1998
Grantor's Private Line and ATM Service
SERVICES & PRICING
This Private Line Service and ATM Services Schedule ("PLSS") is made as of this
5th day of January ___, 1998, and is subject to that Capacity Purchase
Agreement No. __________ (the "Capacity Agreement") by and between Xxxxxxxx
Communications, Inc. d/b/a Xxxxxxxx Network, a Delaware corporation
("Grantor"), and Intermedia Communications, Inc. a Delaware corporation
("Purchaser").
1. DESCRIPTION OF PRIVATE LINE SERVICE: With respect to On-Net Service,
Grantor's Private Line Service (in this Schedule, the "Private Line
Service" or "Service") provides domestic DS-3 and optical SONET (OC-N)
circuits which are specifically dedicated to Purchaser's use between two
(2) points specified by the Parties in a Service Order, accepted by
Grantor in accordance with the Capacity Agreement, and meeting the
technical requirements defined in the "Technical Specifications for
Private Line Service" attached hereto.
DESCRIPTION OF ATM SERVICE: Xxxxxxxx Network Asynchronous Transfer Mode
(ATM) is multi-service technology that provides integration of disparate
networks onto a single communications infrastructure provided in
accordance with the attached "Technical Specifications for Private Line
Service". ATM technology takes voice, data and video packets and divides
them into equally sized, 53-byte cells and transmits them over the
Xxxxxxxx Network ATM network.
2 RATES & CHARGES: Private Line Service has three basic rate elements; IXC
Charges, Local Access Charges, and Non-recurring Charges. Xxxxxxxx Network
ATM service has three basic rate elements; Access, Port Connections, and
either Committed Bit Rate (CBR), or Variable Bit Rate (VBR) Permanent
Virtual Circuits (PVCs) and Virtual Paths (VPs).
2.1 IXC. Monthly recurring IXC Charges for Private Line Service are determined
by multiplying the unit price, representing the charge for one Voice Grade
Equivalent Circuit over one vertical and horizontal mile or route mile, by
the number of Voice Grade Equivalent Circuits constituting the Circuit
ordered, as such appear in the pricing matrix attached to this Schedule 1.
ATM. Permanent virtual circuit (PVC) and Virtual Path (VP) bandwidth
charges. PVC and VP charges are based on the class of service (CoS) and
bandwidth selected. Bandwidth charges are stated in Committed Information
Rates (CIR) or Megabit per second (Mbps) increments for one-way, or
Simplex PVCs. CIR increments are available in 1Meg increments up to 40Mbps
for DS3 ports, 5 Meg increments up to 150 Mpbs for OC3 ports and 25 Meg
increments up to 600 Mbps for OC12 ports. Two Classes of Service are
offered; Constant Bit Rate (CBR) and Variable Bit Rate (non real time)
(VBRnrt). Monthly recurring charges for port, PVCs and VPs are as reflected
on the Attached pricing matrix.
2.2 Local Access Charges. Local Access Charges are based on the cost of
transmission capacity provided by Purchaser or a third party supplier to
extend the Services provided by Grantor from a Grantor Point of Presence to
any other location and are provided as set forth in the Capacity Agreement.
2.4 Non-Recurring Charges: Non-recurring charges for On-Net Service are as set
forth in the attached pricing matrix. Non-recurring charges for any
Service provided by a third-party, whether Off-Net Service, Local Access,
or other, are as established by the third-party providing such Service.
Installation charges shall apply to the normal installation of equipment
necessary to provide the requested service to the point of demarcation at
the Purchaser's premises. Additional Installation charges shall apply when
Grantor is required to install equipment other than that normally required
to provide the service or when Purchaser requests special equipment. The
non-recurring charges are subject to change, upon thirty (30) days prior
written notice from Grantor to Purchaser.
3. TERMS OF SERVICES:
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3.1 Upon acceptance of a Service Order, Grantor shall confirm Purchaser's
requested Start Date, or inform Purchaser of the estimated date for the
delivery of each service. Grantor shall use commercially reasonable efforts
to install each such service on or before the Start Date, but the inability
of Grantor to deliver a facility by such date shall not be a Default under
this Agreement provided that Grantor has coordinated closely with Purchaser
regarding the inability to deliver a facility or requested service. If
Grantor fails to make any facility available within thirty (30) days after
the Start Date, Purchaser's remedy shall include, but not be limited to,
cancellation of the Service Order which pertains to such Service by ten
(10) calendar days prior written notice to Grantor.
3.2 The effective date of each service (the "Service Effective Date") shall
begin as indicated in the Capacity Agreement.
4. CHANGE OF SERVICES:
4.1 Change of Service Date. If Purchaser desires to change the date on which
Purchaser has requested that Service be available, Purchaser will
coordinate such changes during the normal Network Deployment Plan update
process described in the Capacity Purchase Agreement. Purchaser may be
charged a Change of Service Date Charge only in the event that such prior
coordination has not occurred. Purchaser will also be charged for any
charges incurred by Grantor from third party providers as a result of
Purchaser's request for Change of Service Date.
4.2 Change of Service Order. If Purchaser requests a modification to the
information contained in a Service Order (other than a Change of Service
Date) prior to completion of installation of the Service, Purchaser will
incur a Change of Service Order Charge. No charge will be incurred if the
change is to the IXC part of the Service Order and is administrative in
nature (i.e. billing address, contact information, etc.). A charge will be
incurred if the administrative change relates to Local Access for which
Grantor is acting as agent.
Change of Service Order charges will be lower if the Purchaser requests
such change within five (5) business days after a Service Order has been
accepted by Grantor ("pre-engineering") and will be higher if such change
is received after that time ("post-engineering"). Any expedited order will
be considered to be in the post-engineering stage two (2) business days
after the Service Order is accepted by Grantor.
4.3 Change of Service Charges. If Purchaser requests a change to Services after
such Services have been installed, Purchaser will incur a Change of Service
Charge. If such Change of Service is administrative in nature, Purchaser
will not incur a charge, unless such administrative change applies to Local
Access services which have been ordered by Grantor as agent for Purchaser.
In addition to the Change of Service Charge, Purchaser will be responsible
for any charges due to re-engineering which is required as a result of
Purchaser's request for Change of Service.
5. OUTAGE CREDITS:
5.1 Purchaser acknowledges the possibility of an unscheduled, continuous and/or
interrupted period of time when a Service or Services are "UNAVAILABLE" (as
defined in the Specifications) for a continuous period of two (2) hours
(hereafter an "OUTAGE"). An Outage shall begin upon recognition by Grantor
or notice from Purchaser that the Service is interrupted. In the event of
an Outage, Purchaser shall be entitled to a credit (the "OUTAGE CREDIT") at
the rate of 1/720 of the monthly recurring charge for the IXC portion of
the circuit for each hour in excess of the first two (2) consecutive hours
that the affected service fails to conform to the Specifications.
5.2 Purchaser shall not receive an Outage Credit if the interruptions are (a)
of a duration of less than two (2) consecutive hours, (b) caused by the
negligence or willful misconduct of Purchaser or others authorized by
Purchaser to use the services under this Agreement, (c) due to the failure
of power, facilities, equipment, systems or connection not provided by
Seller, (d) caused by the failure of access to Seller's fiber optic
network, (e) resultant from scheduled maintenance where Purchaser has been
notified of scheduled maintenance in advance, (f) due to a Force Majeure
event as defined in Section 8.4 of the CAPACITY AGREEMENT.
5.3 All Outage Credits shall be credited on the next monthly invoice for the
affected Service.
5.4 The Outage Credit described in this Section 5 of this PLSS shall be the
sole and exclusive remedy of Purchaser in the event of any Outage, and
under no circumstance shall an outage be deemed a Default under this
Agreement.
6.0 Service Parameters
6.1 General: The service intervals and system performance standards
defined in this schedule apply to both existing circuits transferred
to the Grantor under terms of the IRU and to all new circuits ordered
from the
38
Grantor subsequent to the execution of the IRU.
6.2 Service Intervals
------------------------------------------------------------------------------------------------------------
Ordering Timelines
------------------------------------------------------------------------------------------------------------
Order Acknowledgment 24 hours
------------------------------------------------------------------------------------------------------------
Advanced Scheduled Maintenance Notification 20 calendar days
------------------------------------------------------------------------------------------------------------
Advanced Emergency Maintenance ASAP
Notification
------------------------------------------------------------------------------------------------------------
FOC, including carrier selection and containing 10 business days after submission to Grantor
due date confirmation
------------------------------------------------------------------------------------------------------------
LOA 3 business days
------------------------------------------------------------------------------------------------------------
Pop-to-Pop DLR (See paragraph 6, below) 5-7 after initial request
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Installation Timelines From Date Order Accepted
------------------------------------------------------------------------------------------------------------
DS-0 To be negotiated
------------------------------------------------------------------------------------------------------------
DS-1 To be negotiated
------------------------------------------------------------------------------------------------------------
DS-3 21 Business Days
------------------------------------------------------------------------------------------------------------
OC-3 (but not OC-3c) 90 Business Days
------------------------------------------------------------------------------------------------------------
OC-12 (but not OC-12c) 90 Business Days
------------------------------------------------------------------------------------------------------------
OC-48 90 Business Days
------------------------------------------------------------------------------------------------------------
OC-192 To be negotiated
------------------------------------------------------------------------------------------------------------
6.3 Technical Specifications:
-------------------------------------------------------------------------
Transmission Rates
-------------------------------------------------------------------------
Device Private Line (On-net)
-------------------------------------------------------------------------
DS-3 44.736 Mbps
-------------------------------------------------------------------------
OC-3/3c 155.520 Mbps
-------------------------------------------------------------------------
OC-12/12c 622.080 Mbps
-------------------------------------------------------------------------
OC-48 9953.280 Mbps
-------------------------------------------------------------------------
6.4 Network Availability: 99.95% in calendar year 1998, and 99.995% thereafter.
Both percentages may be identified as "Network Availability". All Network
Availability is measured on a calendar year basis from POP to POP. The
Network Availability applies only to On-Net Service. Availability of
Off-Net Service, Local Access, or Interconnection is only as provided by
the applicable third-party carrier. Force Majeure Events will not be
included in the calculation of Network Availability.
6.5 Mean Time to Repair
a. Equipment - 2 hours.
b. Cable - 4 hours on site, 6 hours repairing first fiber.
6.6 Performance (% Error Free Seconds): 99.5% from POP to POP measured over a
calendar year (the "EFS"). The EFS will only apply to On-net Service. The
EFS of Off-Net Service, Local Access, or Interconnection is only as
provided by the applicable third-party carrier. Force Majeure Events will
not be included in the calculation of the EFS.
-------------------------------------------------------------------------------
Systems Availability Threshold Bit Error Rate Error Free Seconds
-------------------------------------------------------------------------------------------------------------
Structurally Diverse Route 99.995% 10 * 99.95% 99.50%
-------------------------------------------------------------------------------------------------------------
Non-Structurally Diverse Route 99.95% 10 * 99.95% 99.50%
-------------------------------------------------------------------------------------------------------------
Structurally Diverse Spur 99.995% 10 * 99.95% 99.50%
-------------------------------------------------------------------------------------------------------------
Non-Structurally Diverse Spur 99.95% 10 * 99.95% 99.50%
-------------------------------------------------------------------------------------------------------------
39
6.7 Moves/Adds/Changes.
a. In addition to new service orders, Xxxxxxxx Communications shall issue a
POP-to-POP circuit design layout record when circuits are moved, added,
changed, rehomed, regroomed, 5-7 business days after initial request for
move, add, change, rehome, regroom, etc. is submitted Xxxxxxxx will submit
copies of LEC-issued circuit design layout records immediately upon
receipt from the LEC.
b. Grantor will provide a monthly DLR report summarizing all
moves/adds/changes to DLRs occurring in the previous month.
6.8 Grantor agrees to provide the following:
a. Priority Restoral Status for On-Net Service when electronic restoration
becomes available and structurally diverse paths and OSS restoration
applications are implemented.
a. An electronic view into that portion of the Grantor's Network utilized by
the purchaser under this agreement - including but not limited to trouble
tickets, alerts, and alarms, when such functionality is implemented by
the Grantor.
b. Proactive notice on all outages and expedited escalation thereof and
escalation pursuant to the Grantor's escalation procedures executed
through an assigned contact person for Purchaser.
c. Identification of underlying carriers as requested on circuit.
e. Circuit diversity, including proof of diversity, when ordered, by circuit,
and including verification of diversity following any moves, adds,
changes, regrooming, rehoming, etc. Purchaser will provide DLR for
circuits for which diversity is requested at the rates indicated in the
relevant Service Order set in accordance with the terms of the Capacity
Agreement. A diverse circuit is subject to On-Net or Off-Net Rates
additional to the original circuit.
d. Escalation lists up to and including the Vice-President of Operations and
Engineering of Grantor.
e. Regularly scheduled service review meetings with the Purchaser.
f. 30 minute callbacks with status notices or a similarly agreed upon update
mechanism during outages as required by the Purchaser.
g. Hotline call-in number to monitor restoral status.
g. Fully functional and tested disaster recovery NOC site in Tulsa and in
Houston backup center when implemented (Houston's planned implementation
in 1999).
j. Assigned service manager.
h. Regular performance reports on MTTR, % availability, distribution of
resolution codes, failure rates on particular equipment components
specific to Purchaser's network.
m. Assigned circuit provisioner.
n. Coordination of restoral procedures.
6.9 Failures and Response Times. Purchaser defines the classes of service
failures and response times as follows:
Type Failure Definition Response Time
MAJOR A major failure is defined as a service 4 Hours on site
affecting outage (e.g., a cut cable or major
equipment breakdown) or the loss of an entire
site, i.e., any failure affecting one or more
circuits.
40
MINOR Any failure which has no effect on existing service. 24 hours
Such a failure includes a failed or loose termination.
Redundant system equipment or alternate path cabling
maintains service.
6.10 Remedies of Purchaser for Grantor Failure to Comply with Applicable
Standards. In the event that the Grantor fails to comply with applicable
Service Intervals, System Performance Standards and in any thirty (30) day
period with respect to On-Net Service, only, as stated in this schedule,
the following remedies shall apply:
a) Failure to Comply. Failure to comply is defined as the inability to
meet the agreed upon standards for Service Intervals and System
Performance Standards in any thirty (30) day period.
b) Remedy. In the event of a Failure to Comply, Grantor shall be
obligated to Purchaser as follows:
1) Failure to Comply with Service Intervals - Grantor shall waive
Xxxxxxxx installation fees and provide one month free service charged
by Xxxxxxxx on the affected customer order(s). Any fees charged to
Grantor by third party providers will not be waived.
2) Failure to Comply with System Performance Standards - Grantor
shall provide a credit of 15% of the monthly recurring charge
exclusive of local access to Purchaser's next xxxx on the affected
customer order(s).
41
TECHNICAL SPECIFICATIONS FOR PRIVATE LINE SERVICE
-------------------------------------------------
1.0 Interconnection Specifications
1.1 DS-3. DS-3 service is provided in accordance with ANSI Standard T1.102
(formerly AT&T Compatibility Bullentin 119) and Technical Reference
54014'4. DS-3 Service operates at 44.736 Mbps.
1.2 Optical SONET Services (OC-N). Optical SONET Services are provided in
accordance with ANSI Standard T1.105. OC-3 Service operates at 155.520 Mbps
and is configured with 3 separate STS-1 signaling paths. OC-12 Service
operates at 622.080 Mbps with 12 separate STS-1 signaling paths. OC-12C
Service operates at 622.080 Mbps with 1 STS-12C signaling path (or 4
separate STS-3C signaling paths). OC-48 Service operates at 9953.280 Mbps
and is configured with 48 separate STS-1 signaling paths.
2.0 Quality Standards
2.1 General. DS-3 and Optical SONET Service standards apply on a one-way basis
between the Purchaser Premises Network Interface Points ("CPNIP") which are
connected to Local Access between which DS-3 and Optical SONET
Interexchange Service is provided (CPNIP to CPNIP or End-to-End) and
exclude nonperformance due to force majeure or planned interruptions for
necessary maintenance purposes. The actual end-to-end availability and
performance of DS-3 and Optical SONET Service may be affected by the
Purchaser provided equipment, dependent upon the type and quality of
Purchaser equipment used. (Purchaser provided Local Access may not meet
these specifications.)
2.2 Availability. Availability is a measurement of the percent of total time
that service is operative when measured over a calendar year period. DS-3
and Optical SONET Service is considered inoperative when there has been a
loss of signal or when two consecutive 15 second loop-back tests confirm
the observation of any severely errored seconds or a bit error rate equal
to or worse than 1 x (10 raised to -3). The Local Access availability
standards for DS-3 and Optical SONET Services or any Off-Net Service are
established by the Local Access Provider or Off-Net Service provider.
2.3 Performance (% Error Free Seconds, while Available). Performance is noted
in Error Free Seconds (EFS) which are a measure of the percentage of total
seconds when measured over a consecutive 24 hour period that do not contain
bit errors. Performance shall be measured on a one-way basis using a Pseudo
Random Bit Sequence test pattern as defined in CCITT Recommendation 0.151.
The Error Free Seconds standards for the Local Access for DS-3 and Optical
SONET Service or for Off-Net Service is established by the Local Access
Provider or Off-Net Service provider.
42
------------------------------------------------------------------------------
Xxxxxxxx Network Asynchronous Transfer Mode Service
TECHNICAL SPECIFICATIONS
1.0 Definition. Xxxxxxxx Network technical specifications are stated as an
objective that the ATM network will perform in accordance with prevailing
telecommunications industry standards. Xxxxxxxx Network will use reasonable
efforts to remedy delays, interruptions, omissions or mistakes within the
ATM network.
1.1 Performance Objectives. All service provided under the Xxxxxxxx Network
Asynchronous Transfer Mode Service are measured using two variables:
Network availability and Mean-time-to-repair.
1.2 Network Availability is a measurement of actual service time to stated
service time. Network Availability objective: -99.99%
1.3 MTTR is the average time required to restore service and resume
availability and is stated in terms of equipment and cable outages. The
time is measured from the moment the outage is reported until the service
is available and applies specifically to equipment outages or failures.
MTTR objective: - 2 Hours (Equipment)
- 4 Hours (Cable)
1.4 Calculation. Xxxxxxxx Network calculates network availability on customer
action requests. The customer must notify Xxxxxxxx Network and initiate an
action request to determine if service level variables 1.2 & 1.3 were met.
Page 8 of 8
43
Rates
Private [illegible] unless otherwise specified
--------------------------------------------------------------------------------------------------------
[illegible] [illegible] OC3 OC12 OC[illegible] OC192*
--------------------------------------------------------------------------------------------------------
****
--------------------------------------------------------------------------------------------------------
*OC192 pricing is $/VGE route xxxx
XX-0 Non-Recurring/Ancillary
--------------------------------------------------------------------------------------------------------
IXC [illegible] Local Loop Admin
--------------------------------------------------------------------------------------------------------
[illegible] $ 2,000.00 N/C $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 500.00 $ 250.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 500.00 $ 250.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 2,000.00 $ 500.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 500.00 $ 250.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 2,000.00 $ 500.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 2,000.00 $ 500.00 $ 100.00
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] 100% of remain contract life
--------------------------------------------------------------------------------------------------------
Additional $100.00/Hr, $125.00/Hr After hours
--------------------------------------------------------------------------------------------------------
Local Loop $ 150.00
--------------------------------------------------------------------------------------------------------
OC-3 Non-Recurring/Ancillary
--------------------------------------------------------------------------------------------------------
IXC [illegible] Local Loop Admin
--------------------------------------------------------------------------------------------------------
[illegible] $ 5,000.00 N/C $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 1,250.00 $ 500.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 1,250.00 $ 500.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 5,000.00 $ 1,250.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 1,250.00 $ 500.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 5,000.00 $ 1,250.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 5,000.00 $ 1,250.00 $ 300.00
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] 100% of remain contract life
--------------------------------------------------------------------------------------------------------
Additional $100.00/Hr, $125.00/Hr After hours
--------------------------------------------------------------------------------------------------------
Local Loop $ 150.00
--------------------------------------------------------------------------------------------------------
44
Rates
OS-12 Non-recurring/Ancillary
--------------------------------------------------------------------------------------------------------
[illegible] [illegible] [illegible]
--------------------------------------------------------------------------------------------------------
[illegible] $ 18,000.00 N/C $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 3,500.00 $ 1,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 3,500.00 $ 1,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 18,000.00 $ 3,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 3,500.00 $ 1,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 18,000.00 $ 3,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 18,000.00 $ 3,500.00 $ 1,000.00
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] 100% of remain contract life
--------------------------------------------------------------------------------------------------------
[illegible] $100.00/Hr, $125.00/Hr After hours
--------------------------------------------------------------------------------------------------------
[illegible] $ 150.00
--------------------------------------------------------------------------------------------------------
[illegible] [illegible]
--------------------------------------------------------------------------------------------------------
[illegible] [illegible] [illegible]
--------------------------------------------------------------------------------------------------------
[illegible] $ 48,000.00 N/C $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 12,000.00 $ 5,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 12,000.00 $ 5,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 48,000.00 $ 12,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 12,000.00 $ 5,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 48,000.00 $ 12,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] N/C N/C $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] $ 48,000.00 $ 12,000.00 $ 3,500.00
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] Passthrough
--------------------------------------------------------------------------------------------------------
[illegible] 100% of remain contract life
--------------------------------------------------------------------------------------------------------
[illegible] $100.00/Hr, $125.00/Hr After hours
--------------------------------------------------------------------------------------------------------
[illegible] $ 150.00
--------------------------------------------------------------------------------------------------------
45
ATM PRICING
ATM VBR PRICING MONTHLY RECURRING CHARGES
Port CIR(Mbps CIR HIGH Port CoS Price Per Meg
DS3 1 9 $6,000 VBRnrt $325
10 19 $6,000 VBRnrt $312
20 29 $6,000 VBRnrt $306
30 40 $6,000 VBRnrt $299
OC3 5 25 $15,000 VBRnrt $312
25 35 $15,000 VBRnrt $306
40 55 $15,000 VBRnrt $299
60 75 $15,000 VBRnrt $293
80 95 $15,000 VBRnrt $286
100 120 $15,000 VBRnrt $280
125 150 $15,000 VBRnrt $273
OC12 ICB
NON RECURRING CHARGES
Non-recurring charges include installation, configuration changes,
cancellation, order change that may be incurred for the Port or PVC.
Non Recurring Charges
Description of Charge Charges
Installation
45Mb Port $ 1,500
155Mb Port $ 4,000
622Mb Port $ 15,000
per VC $ 40
Ancillary
Configuration Change $ 50
Cancellation $ 250
PVC Order Change $ 50
Port Order Change $ 100
DS3 Cross Connect $ 500
OC3 Cross Connect $ 1,250
DISCOUNT STRUCTURE
Contributing Xxxxxxxx network ATM Service charges include recurring port and
PVC charges. The discount structure is based on the monthly revenue commitment
(contributing charges) and the stated length of the contract established.
****
Term 2: ATM Service is limited to 18 months from execution date or otherwise
extended by mutual agreement by Intermedia and Xxxxxxxx
Term 3: CBR Pricing is subject to availability at the Rates
46
SCHEDULE 2
TO THE CAPACITY PURCHASE AGREEMENT DATED JANUARY 5, 1998
--------------------------------------------------------------------------------
INITIAL NETWORK DEPLOYMENT PLAN
Capacity requested by Purchaser shall be provided by Grantor to Purchaser at
either On-Net or Off-Net rates as indicated below. Column C ("On-Net Private
Lines Now") and Column D ("On-Net ATM Now") city pairs shall be available
immediately at the Rates provided for pursuant to the terms of this Agreement.
Column E ("On-Net Private Lines 12 Mo.") city pairs shall be available
immediately at a pass-through of Off-Net rates, and shall be subject to the
Rates provided for pursuant to the terms of this Agreement upon the earlier of
twelve (12) months or the date the city pairs become available On-Net. Column F
("Off-Net New Schedule in 30 Days") city pairs shall be immediately available at
pass-through of Off-Net rates. City pairs available under the Backbone
Agreements are by this reference deemed a part of Column F/the "Off-Net New
Schedule in 30 Days," subject to payment of the Management Fee and other
requirements of Section 8 of the Agreement.
City Pairs specifically identified in Schedule F will be included in a schedule
of SUSA overbuilds for On-Net rates within 30 days of execution of this
Agreement.
SUSA capacity is subject to availability.
=======================================================================================================================
A B C D E F G H
On-Net On-Net On-Net Off-Net Minimum SUSA Availibity
Line PLs ATM PLs (New Schedule Facility ---------------
No. A Location Z Location Now Now 12 Mo. in 30 Days) Size Date Date Cap.
-----------------------------------------------------------------------------------------------------------------------
1 Atlanta Birmingham 1 DS3 Nov
-----------------------------------------------------------------------------------------------------------------------
2 Atlanta Chicago 1 XX0X Xxx-00
-----------------------------------------------------------------------------------------------------------------------
3 Atlanta Dallas 1 OC3C Sep
-----------------------------------------------------------------------------------------------------------------------
4 Atlanta Los Angeles 1 DS3 Oct
-----------------------------------------------------------------------------------------------------------------------
5 Atlanta Miami 1 x OC3C Dec Mar-98 3-DS3
-----------------------------------------------------------------------------------------------------------------------
6 Atlanta New Orleans 1 x DS3 Oct Mar-98 1-DS3
-----------------------------------------------------------------------------------------------------------------------
7 Atlanta New York 1 DS3 Dec
-----------------------------------------------------------------------------------------------------------------------
8 Atlanta Orlando 1 OC12C Apr-99
-----------------------------------------------------------------------------------------------------------------------
9 Atlanta Raleigh 1 OC12C Sep
-----------------------------------------------------------------------------------------------------------------------
10 Atlanta Tallahassee x a OC3C Aug-99
-----------------------------------------------------------------------------------------------------------------------
11 Atlanta Washington DC 1 x OC3C Dec Mar-98 2-OC3C
-----------------------------------------------------------------------------------------------------------------------
12 Baltimore Washington DC 1 DS3 May-99 Mar-98 1-DS3
-----------------------------------------------------------------------------------------------------------------------
13 Birmingham Dallas 1 DS3 Dec-98
-----------------------------------------------------------------------------------------------------------------------
14 Boston Albany a DS3 Aug-99
-----------------------------------------------------------------------------------------------------------------------
15 Boston Chicago a DS3 Aug-99
-----------------------------------------------------------------------------------------------------------------------
16 Boston New York a 2-DS3 Aug-99
-----------------------------------------------------------------------------------------------------------------------
17 Buffalo Cleveland a OC3C Oct
-----------------------------------------------------------------------------------------------------------------------
18 Chicago Cincinnati 1 OC3C May-99
-----------------------------------------------------------------------------------------------------------------------
19 Chicago Cleveland 1 x OC3C Oct Mar-98 2-DS3a
-----------------------------------------------------------------------------------------------------------------------
20 Chicago Dallas 1 x OC3C Sep Mar-98 1-OC3C
-----------------------------------------------------------------------------------------------------------------------
21 Chicago Detroit 1 DS3 Aug-99 Mar-98 1-DS3a
-----------------------------------------------------------------------------------------------------------------------
22 Chicago Indianapolis 1 DS3 Sep
-----------------------------------------------------------------------------------------------------------------------
23 Chicago Los Angeles 1 x DS3 Nov Mar-98 1-DS3
-----------------------------------------------------------------------------------------------------------------------
24 Chicago Milwaukee a DS3 Aug-99
-----------------------------------------------------------------------------------------------------------------------
25 Chicago Minneapolis 1 DS3 Apr-99
-----------------------------------------------------------------------------------------------------------------------
26 Chicago New York 1 x a OC3C Sep Mar-98 13OCBR
-----------------------------------------------------------------------------------------------------------------------
27 Chicago Pittsburgh 1 DS3 yr2000
-----------------------------------------------------------------------------------------------------------------------
28 Chicago San Francisco 1 OC3C yr2000 Mar-98 1-OC3
-----------------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xx Xxxxx 0 XX0X Xxx
-----------------------------------------------------------------------------------------------------------------------
30 Chicago Washington DC 1 x a OC3C Apr-99
-----------------------------------------------------------------------------------------------------------------------
31 Cincinnati Indianapolis 1 DS3 Apr-99
-----------------------------------------------------------------------------------------------------------------------
32 Cincinnati Washington DC 1 OC3C Apr-99
-----------------------------------------------------------------------------------------------------------------------
33 Cleveland New York 1 x DS3 Nov
-----------------------------------------------------------------------------------------------------------------------
34 Cleveland Pittsburgh a DS3 yr2000
-----------------------------------------------------------------------------------------------------------------------
35 Dallas Houston 1 OC3C Dec
-----------------------------------------------------------------------------------------------------------------------
36 Dallas Los Angeles 1 DS3 Nov
-----------------------------------------------------------------------------------------------------------------------
37 Dallas Minneapolis 1 DS3 Apr-99
-----------------------------------------------------------------------------------------------------------------------
38 Dallas New Orleans 1 DS3 Dec
-----------------------------------------------------------------------------------------------------------------------
39 Dallas New York 1 DS3 Dec
-----------------------------------------------------------------------------------------------------------------------
Page 1
47
SCHEDULE 2
TO THE CAPACITY PURCHASE AGREEMENT DATED JANUARY 5, 1998
A B C D E F G H
On-Net On-Net On-Net Off-Net Minimum SUSA Availability
Line PLs ATM PLs (New Schedule Facility -----------------
No. A Location Z Location Now Now 12 Mo. in 30 Days) Size Date Date Cap.
--- ---------- ------------- ------ ------ ------- ------------- -------- --------- ------ -----
40 Dallas Oklahoma City 1 x 2-DS3 Dec Mar-98 2-DS3
41 Dallas Phoenix 1 DS3 Apr-99
42 Dallas San Francisco 1 a OC3C yr2000 Mar-98 LA/SF
43 Dallas Shreveport x a 1-DS3 Not Sched
44 Dallas Tulsa 1 x DS3 Aug Mar-98 1-DS3
45 Dallas Washington DC 1 0C3C Dec
46 Dayton Detroit 1 DS3 Mar-99
47 Denver Kansas City a OC3C Aug-99
48 Denver Minneapolis a DS3 Aug-99
49 Denver Salt Lake City 1 DS3 Aug-99 Mar-98 2-DS3
50 Hartford New York a DS3 Aug-99
51 Hartford Providence a DS3 Aug-99
52 Hayward Sacramento a DS3 yr2000
53 Houston New Orleans 1 DS3 Nov
54 Houston Tallahassee a OC3C Aug-99
55 Kansas City St Louis 1 OC3C Dec
56 Las Vegas Los Angeles 1 x DS3 Nov Mar-98 1-DS3
57 Las Vegas Salt Lake City 1 x OC3C Apr-99 Mar-98 1-DS3
58 Las Vegas San Francisco a OC3C yr2000
59 Los Angeles New York 1 DS3 Dec
60 Los Angeles Phoenix 1 DS3 Apr-99
61 Los Angeles San Francisco 1 OC3C Not Sched Mar-98 1-OC3C
62 Memphis Nashville a DS3 Not Sched
63 Memphis New Orleans a DS3 Not Sched
64 Miami Orlando 1 OC12C Apr-99
65 Miami Tampa 1 OC12C Apr-99
66 Milwaukee Minneapolis a DS3 Not Sched
67 New York Pittsburgh a DS3 Not Sched
68 New York Washington DC 1 x OC3C Apr-99
69 Orlando Tampa 1 XX00X Xxx-00
00 Xxxxxxxxxxxx Xxx Xxxx 1 DS3 Apr-99
71 Philadelphia Washington DC 1 DS3 Apr-99
72 Pittsburgh Dayton/Waynsville a DS3 Not Sched
00 Xxxxxxxxxx Xxxxxxxxxx XX a DS3 yr2000
74 Portland San Francisco a DS3 Not Sched
75 Portland Seattle a DS3 Not Sched
76 Raleigh Washington DC 1 OC12C Dec
77 Sacramento Salt Lake City a DS3 Not Sched
78 Salt Lake City Seattle a DS3 Not Sched
79 San Francisco Washington DC 1 a OC3C Not Sched
80 Tallahassee Tampa 1 OC3C Aug-99
81 Sacramento San Francisco a DS3 Not Sched
TOTAL 17 5 33 0
1 - Orders for capacity available now or within 12 months from execution.
x - Capacity available in 12 months or sooner; does not represent an order.
a - Subject to review for availability; not circuit orders.
Intermedia will issue ASR's in 3 weeks for all circuit orders
48
SCHEDULE 2
XXXXXXXX CITY PLAN
No. City Locations Firm
In Service Dates
----------------------------------------------------------
1 Akron 10/01/99
------- ------------------------- -----------------
2 Albany, NY 12/20/98
------- ------------------------- -----------------
3 Atlanta 09/03/98
------- ------------------------- -----------------
4 Baltimore 05/22/99
------- ------------------------- -----------------
5 Baton Rouge 11/03/98
------- ------------------------- -----------------
6 Birmingham 11/10/98
------- ------------------------- -----------------
7 Boise 05/22/99
------- ------------------------- -----------------
8 Boston 08/01/99
------- ------------------------- -----------------
9 Buffalo 12/20/98
------- ------------------------- -----------------
10 Charlotte 10/20/98
------- ------------------------- -----------------
11 Chicago 08/17/98
------- ------------------------- -----------------
12 Cincinnati 04/22/99
------- ------------------------- -----------------
13 Cleveland 10/04/98
------- ------------------------- -----------------
14 Colorado Springs 08/01/99
------- ------------------------- -----------------
15 Columbus 03/22/99
------- ------------------------- -----------------
16 Dallas 08/17/98
------- ------------------------- -----------------
17 Dayton 02/20/99
------- ------------------------- -----------------
18 Daytona Beach 05/22/99
------- ------------------------- -----------------
19 Denver 08/01/99
------- ------------------------- -----------------
20 Des Moines 05/22/99
------- ------------------------- -----------------
21 Ft Xxxxxx 05/06/99
------- ------------------------- -----------------
22 Ft. Lauderdale 05/23/99
------- ------------------------- -----------------
23 Greensboro 09/20/98
------- ------------------------- -----------------
24 Houston 11/05/98
------- ------------------------- -----------------
25 Indianapolis 08/17/98
------- ------------------------- -----------------
26 Jackson, MS 10/20/98
------- ------------------------- -----------------
27 Jacksonville 04/22/99
------- ------------------------- -----------------
28 Kansas City 11/03/98
------- ------------------------- -----------------
29 Las Vegas 10/01/98
------- ------------------------- -----------------
30 Los Angeles 11/03/98
------- ------------------------- -----------------
31 Melbourne 04/22/99
------- ------------------------- -----------------
32 Miami 05/22/99
------- ------------------------- -----------------
33 Minneapolis 07/01/99
------- ------------------------- -----------------
34 Mobile 05/22/99
------- ------------------------- -----------------
35 New Orleans 10/20/98
------- ------------------------- -----------------
36 New York 11/05/98
------- ------------------------- -----------------
37 Newark 05/22/99
------- ------------------------- -----------------
38 Oklahoma City 11/10/98
------- ------------------------- -----------------
39 Orlando 05/22/99
------- ------------------------- -----------------
40 Pensacola 05/06/99
----------------------------------------------------------
Page 1 of 3
49
SCHEDULE 2
XXXXXXXX CITY PLAN
Firm
NO. City Locations In Service Dates
----- --------------- ----------------
41 Philadelphia 05/23/98
----- --------------- ----------------
42 Phoenix 01/20/99
----- --------------- ----------------
43 Portland 04/01/99
----- --------------- ----------------
44 Raleigh 09/18/98
----- --------------- ----------------
45 Richmond 10/20/98
----- --------------- ----------------
46 Rochester 12/20/98
----- --------------- ----------------
47 Salt Lake City 08/01/99
----- --------------- ----------------
48 San Diego 12/01/00
----- --------------- ----------------
49 San Francisco 04/01/00
----- --------------- ----------------
50 San Xxxx 04/01/00
----- --------------- ----------------
51 Seattle 07/01/00
----- --------------- ----------------
52 Spartanburg 08/29/98
----- --------------- ----------------
53 St Louis 09/15/98
----- --------------- ----------------
54 Syracuse 02/20/99
----- --------------- ----------------
55 Tallahassee 05/22/99
----- --------------- ----------------
56 Tampa 05/22/99
----- --------------- ----------------
57 Tucson 03/22/99
----- --------------- ----------------
58 Tulsa 1 Oak 08/17/98
----- --------------- ----------------
59 Washington, DC 07/28/98
----- --------------- ----------------
60 West Palm Beach 04/22/99
----- --------------- ----------------
Estimated
In Service Dates
---- ----------------- ----------------
61 Albuquerque, NM 3Q01
---- ----------------- ----------------
62 Austin, TX 3Q01
---- ----------------- ----------------
63 Xxxxxxxxxxx, XX 0X00
---- ----------------- ----------------
64 Detroit, MI 2Q00
---- ----------------- ----------------
00 Xx Xxxx, XX 0X00
---- ----------------- ----------------
66 Fresno, CA 1Q00
---- ----------------- ----------------
67 Grand Rapids, MI 2Q00
---- ----------------- ----------------
68 Xxxxxxxxxx, XX 0X00
---- ----------------- ----------------
69 Xxxxxxxx, XX 0X00
---- ----------------- ----------------
70 Johnson City, TN 3Q01
---- ----------------- ----------------
71 Knoxville, TN 3Q01
---- ----------------- ----------------
72 Lansing, MI 2Q00
---- ----------------- ----------------
00 Xxxxxx Xxxx, XX 0X00
---- ----------------- ----------------
74 Louisville, KY 3Q01
---- ----------------- ----------------
75 Macon, GA 1Q99
---- ----------------- ----------------
76 Memphis, TN 3Q01
---- ----------------- ----------------
Page 2 of 3
50
SCHEDULE 2
XXXXXXXX CITY PLAN
NO. City Locations Firm
In Service Dates
--------------------------------------------------
77 Milwaukee, WI 3Q99
--------------------------------------------------
78 Montreal, Can 3Q00
--------------------------------------------------
79 Nashville, TN 3Q01
--------------------------------------------------
80 Xxxxxxx, XX 0X00
--------------------------------------------------
81 Xxxxxxx,XX 0X00
--------------------------------------------------
82 Omaha, NE 3Q01
--------------------------------------------------
83 Ottawa, Can 3Q00
--------------------------------------------------
84 Xxxxxxxxx, XX 0X00
--------------------------------------------------
85 Providence, RI 2Q99
--------------------------------------------------
86 Xxxx, XX 0X00
--------------------------------------------------
87 Xxxxxxxxxx, XX 0X00
--------------------------------------------------
88 San Antonio 3Q01
--------------------------------------------------
89 Sante Fe, NM 3Q01
--------------------------------------------------
90 Southbend, IN 3Q01
--------------------------------------------------
91 Xxxxxxxxxxx, XX 0X00
--------------------------------------------------
92 Xxxxxxxx, XX 0X00
--------------------------------------------------
93 Xxxxxx, XX 0X00
--------------------------------------------------
94 Topeka, KS 2Q99
--------------------------------------------------
95 Toronto, Can 3Q00
--------------------------------------------------
96 Youngstown, OH 3Q01
--------------------------------------------------
Other Estimated
Potential Cities In Service Dates
--------------------------------------------------
97 Xxxxxxxxx, XX 0X00
--------------------------------------------------
98 Billings, MT 3Q01
--------------------------------------------------
99 Biloxi, MS 2Q99
--------------------------------------------------
100 Xxxxxxxxxxx, XX 0X00
--------------------------------------------------
101 Chico, CA 3Q00
--------------------------------------------------
102 Coeur D'Alene 3Q01
--------------------------------------------------
103 Eau Claire, WI 3Q99
--------------------------------------------------
104 Xxxxxx, XX 0X00
--------------------------------------------------
105 Gainsville, FL 2Q99
--------------------------------------------------
000 Xxxxx Xxxxx, XX 0X00
--------------------------------------------------
107 Madison, WI 3Q99
--------------------------------------------------
108 Panama City, FL 2Q99
--------------------------------------------------
109 Sioux Falls, SD 3Q01
--------------------------------------------------
110 Xxxxxxx, XX 0X00
--------------------------------------------------
000 Xx. Xxxxx, XX 0X00
--------------------------------------------------
112 Waco, TX 3Q01
--------------------------------------------------
Page 3 of 3
51
****
52
[INTERMEDIA COMMUNICATIONS LETTERHEAD]
March 31, 1999
Xx. Xxxxx Xxxxxx
President, Xxxxxxxx Network
Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Re: Capacity Purchase Agreement
Binding Interim Letter Amendment
Dear Xxxxx:
This letter amendment ("Amendment"), effective March 31, 1999, shall constitute
a legally binding agreement between Intermedia Communications Inc.
("Intermedia") and Xxxxxxxx Communications, Inc. ("Xxxxxxxx") amending the
Capacity Purchase Agreement (the "CPA") between Intermedia and Xxxxxxxx entered
into as of January 5, 1998. It is the intent of the parties to negotiate and
execute a more comprehensive formal amendment to the CPA which, if and when it
is executed, shall thereafter supersede this Amendment and render this Amendment
of no legal force or effect.
Therefore, in consideration of the mutual terms and covenants set forth herein,
and for other good and valuable consideration, the adequacy and receipt of which
are hereby acknowledged, Intermedia and Xxxxxxxx agreeing to be legally bound
thereby, hereby amend the CPA as follows:
1. Any terms used in this Amendment which are defined terms in the CPA shall
have the same meaning herein as in the CPA.
2. To the extent of any conflict between any provisions of this Amendment and
the CPA, the provisions of this Amendment shall govern and control. Without
limiting the foregoing, the parties specifically agree that the following
provisions of the CPA are no longer in effect because they have been superseded
by this Amendment:
The following definitions in Section 1.2 of the CPA: "Adjusted Purchased
Capacity," "Capacity," "Most Favored Rate," "Network Deployment Plan,"
"On-Net," "Plan Adjustment Date," "Pricing Adjustment Date(s)," "Purchased
Capacity," "Purchased Capacity Shortfall," "Rates," "Required Capacity,"
"Shortfall Carrier," "Sub-DS-3 Backbone Agreement," "Sub-DS-3 Capacity" and
"Sub-DS-3 Carrier."
Sections 2.2, 2.3, 2.4, 2.5, 2.6, 3.3, 8 and 9.
53
Letter Amendment
Page 2
3. Except as otherwise provided herein, all words used in this Amendment shall
have the meanings commonly understood and ascribed to them within the
telecommunications industry.
Nature of Capacity Purchase Agreement
4. The CPA shall remain a purchase by Intermedia of an indefeasible right to
use specified levels of capacity on the Xxxxxxxx network.
Parties' Ordering Rights and Obligations
5. Xxxxxxxx' rights as Preferred Capacity Provider pursuant to the CPA are
hereby deleted and replaced with the preferred provider rights set forth in
paragraph 6, below.
6. Xxxxxxxx and Intermedia shall retain a strategic relationship throughout
the term of the CPA. As described in paragraph 19, below, Intermedia will share
with Xxxxxxxx, on a quarterly basis, its forward plans for the leased Intermedia
backbone network (i.e., excluding fiber purchases and/or other Intermedia-owned
network). Xxxxxxxx will thereby have an opportunity to offer Intermedia the
required capacity to meet all such plans on the Xxxxxxxx network (Tier A cities
as described in paragraphs 9 and 10, below). Therefore, on a prospective basis,
beginning May 1, 1999, Intermedia will place at least **** of its new orders for
leased backbone network Tier A city capacity with Xxxxxxxx ****. The **** will
be measured in terms of DS-0 equivalent miles for orders placed each calendar
year (with calendar year 1999 being assessed from May 1st to December 31st). At
the quarterly planning reviews, Intermedia and Xxxxxxxx will review Intermedia's
"new orders" to determine the status of Intermedia's progress toward
satisfaction of the ****, and Intermedia will provide Xxxxxxxx with
sufficient information regarding Intermedia's new orders to allow a meaningful
review. Notwithstanding the foregoing, the **** shall automatically be deemed
satisfied in any calendar year in which Intermedia achieves **** of its
Minimum Commitment (as described in paragraph 14, below). Intermedia's
achievement of **** of its Minimum Commitment shall in no way constitute a
limitation on the nature or volume of the business that may be transacted
between Xxxxxxxx and Intermedia, nor shall it limit the scope of the parties'
strategic relationship.
****
54
Letter Amendment
Page 3
****
Rates and Commitments
8. The Most Favored Rate obligations of Xxxxxxxx pursuant to the CPA are
hereby deleted.
9. Attached and hereby made a part hereof as Annexes 1 and 2 are the rate
tables for on-net capacity (On-Net Rate Tables) and off-net capacity (Off-Net
Rate Tables), respectively. The On-Net Rate Tables are ****. The Off-Net Rate
Tables are ****. Once effective, these rates shall supersede those in the CPA,
the rates shall apply to all circuits in the relevant category, and all circuits
shall be re-rated each time the rates are reduced.
10. For pricing purposes, the new rate tables define three tiers of cities as
follows: Tier A cities are those cities on the Xxxxxxxx network; Tier B cities
are those cities not on the Xxxxxxxx network which are set forth in Annex 2,
Table 2 (the "Tier B City List"); and all other cities are Tier C cities. All
circuits assigned to Xxxxxxxx pursuant to the Backbone Agreements shall be
deemed within Tier B cities and subject to the rates in Annex 2, Table 1 until
such time as they are groomed onto the Xxxxxxxx network regardless of whether or
not they are listed in the Tier B City List. Any Tier B or Tier C city circuits
shall be subject to the Tier A city On-Net Rate Tables effective immediately
upon the grooming of such circuits onto the Xxxxxxxx network.
****
55
Letter Amendment
Page 4
****
56
Letter Amendment
Page 5
****
57
Letter Amendment
Page 6
****
Dark and Dim Fiber
15. Xxxxxxxx shall offer to Intermedia the opportunity to purchase dark or dim
fiber capacity from Xxxxxxxx. Such purchases, if any, shall be subject to
separate contracts; provided, however that:
****
****
16. ****
Performance Obligations and Credits
17. Performance credits due Intermedia, to the extent applicable, for Xxxxxxxx'
failure to meet On Time Delivery and Mean Time To Repair requirements will be
calculated on a quarterly basis as part of quarterly formal operational reviews.
Xxxxxxxx performance obligations and remedies for Xxxxxxxx' failure to meet such
obligations, to the extent applicable, are set forth in Annex 3 (Service
Ordering and Provisioning Metrics and Remedies) which is attached hereto and
hereby made a part hereof.
Operational Procedures
18. Intermedia and Xxxxxxxx will jointly develop an Operations Manual by May
15, 1999 or as soon as possible thereafter. The Operations Manual, which will be
jointly maintained, will contain all procedures to be used for circuit ordering,
provisioning, testing, acceptance, billing, customer care, fault reporting and
repair. The Operations
58
Letter Amendment
Page 7
Manual also will include standard provisioning intervals, which the parties
intend to continually improve and periodically adjust accordingly.
Intermedia shall have the right to place orders with alternative providers
pursuant to Annex 2 (Off-Net Rate Tables), by either: (a) instructing Xxxxxxxx
to directly place the orders; or (b) on Xxxxxxxx' behalf under a Letter of
Agency from Xxxxxxxx, placing the orders through a third party provider mutually
agreeable to Xxxxxxxx and Intermedia, with all orders having a minimum term of
one (1) year unless otherwise agreed to by the parties on an individual case
basis.
Quarterly Planning Reviews
19. Formal quarterly planning reviews will be established. At these reviews,
Intermedia will provide Xxxxxxxx with its latest capacity forecast, and Xxxxxxxx
will provide Intermedia with its latest build program forecast.
Grooming Procedures
20. Intermedia and Xxxxxxxx will jointly develop and implement a grooming
program for calendar year 1999 with the objective of moving off-net circuits
onto the Xxxxxxxx network as quickly as possible. The requirements and timing of
the grooming program will be based on availability of on-net capacity and
interconnects between Intermedia's Points of Presence ("POP's") and Xxxxxxxx'
POP's. Under the grooming program, Intermedia will be responsible for placing
firm orders for on-net capacity, migrating the traffic and placing cease orders
for the associated off-net circuits. The existing management fee (Professional
Services) structure will be used to meet additional resource requirements.
Interconnect Program
21. Intermedia and Xxxxxxxx shall establish permanent interconnects between
their POP's as set forth in Annex 4 (Interconnect Cities Programmed for 1999)
which is attached hereto and hereby made a part hereof. The parties will agree
on a method of establishing the permanent interconnects and their approximate
cost before substantial work begins on establishing the permanent interconnects.
****
Additional interconnects will be determined during the formal quarterly planning
reviews (as described in paragraph 19, above) and will be subject to the process
outlined above.
59
Letter Amendment
Page 8
****
****
Other Opportunities
23. Intermedia and Xxxxxxxx will in good faith explore other opportunities of
potential mutual benefit, including establishing a common ILEC collocation
program, the sharing of lab facilities for vendor equipment assessment, switched
voice services between the parties, and modifications to the parties' Master
Services Agreement for IXC Enhanced Data Transport Services.
If this Amendment accurately reflects our agreement to modify the CPA, please
countersign this letter below. Facsimile copies of this Amendment executed in
counterparts shall be deemed legally binding between the parties.
Sincerely,
INTERMEDIA COMMUNICATIONS INC.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Engineering
ACCEPTED AND AGREED TO:
XXXXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXX XXXXXX
-----------------------
Xxxxx Xxxxxx
President, Xxxxxxxx Network
60
Letter Amendment
Page 9
ANNEXES
ANNEX 1 On-Net Rate Tables
ANNEX 2 Off-Net Rate Tables
ANNEX 3 Service Ordering and Provisioning Metrics and Remedies
ANNEX 4 Interconnect Cities Programmed for 1999
ANNEX 5 Ancillary Charges
ANNEX 6 Portability
61
IN CONFIDENCE TO INTERMEDIA AND XXXXXXXX
****
Page 1
62
IN CONFIDENCE TO INTERMEDIA AND XXXXXXXX ANNEX 1
Table 2 Tier A City List
Baltimore, MD. Denver, CO. New York, NY. Sacramento, CA.
Baton Rouge, LA. Detroit, MI. Miami, FL. Raleigh, NC.
Birmingham, AL. Greensboro, NC. Minneapolis, MN. San Diego, CA.
Boston, MA. Hartford, CT. Nashville, TN. San Francisco, CA.
Atlanta, GA Houston, TX. Newark, NJ. South Bend, IN.
Charlotte, NC. Jackson, MI. Oklahoma City, OK. Spartanburg, SC.
Chicago, IL. Kansas City, MO. Omaha, NE. St. Louis, MO.
Cleveland, OH. Indianapolis, IN. Orlando, FL. Tampa, FL.
Colorado Springs, CO. Las Vegas, NV. Philadelphia, PA. Toledo, OH.
Columbia, SC. Los Angeles, CA. Pittsburgh, PA. Tulsa, OK.
Dallas, TX. New Orleans, LA. Richmond, VA. Washington, D.C.
4/23/99 Page 2
63
IN CONFIDENCE TO INTERMEDIA AND XXXXXXXX ANNEX 2
OFF-NET RATE TABLES
TABLE 1 - Off-net DS0 Equivalent Capacity Price Table for Tier B cities
****
Further Rate reductions for year 2002 and beyond will be established as
described in Paragraph 13 of the Amendment.
TABLE 2 - Tier B City List
CITY XXXXX XXXX XXXXX XXXX XXXXX XXXX XXXXX XXXX XXXXX XXXX XXXXX
ABILENE TX CHICAGO IL FT XXXXXX FL LODI CA PEORIA IL SHREVEPORT LA
AKRON OH CINCINNATI OH FTN BEACH FL LONG BEACH CA PERRYMAN MD SIOUX FALLS SD
ALBANY GA CIRCLE CITY AZ FT XXXXX IN LONGVIEW TX PHOENIX AZ SMYRNA GA
ALBANY NY CLEARWATER FL FT WORTH TX LOS ANGELES CA PHILADELPHIA PA SOUTH BEND IN
ALBUQUERQUE NM CLEVELAND OH GAINESVILLE FL LOUISVILLE KY PITTSBURGH PA SOUTHFIELD MI
ANARBOR MI CLIMAX MI GAITHERSBURG MD LYNCHBURG VA PLANO TX SPARTANBURG SC
ARLINGTON VA COCKEYSVILLE MD GALION OH LYNN HAVEN FL PLEASANTON CA SPRINGFIELD IL
ASHEVILLE NC COCO FL GARDEN CITY NY MACON GA PORTLAND ME SPRINGFIELD MO
ATLANTA GA COLLEGE PARK MD XXXX IN MAPLEWOOD MN POTTSTOWN PA ST AUGUSTINE FL
AUBURN CA COLORADO SPRINGS CO GIBSONIA PA MARTINSBURG WV POUGHKEEPSIE NY ST XXXXXX MO
AUGUSTA GA COLUMBIA MO GLENDALE CA MC CLEAN VA PROVIDENCE RI ST XXXX MN
AUSTIN TX COLUMBIA SC GRAND JUNCTION CO MC COMB OH PROVO UT ST PETERSBURG FL
AVON PARK FL COLUMBUS IN GREENSBORO NC MC MINNVILLE TN PUEBLO CO ST LOUIS MO
BAKERSFIELD CA COLUMBUS OH GREEN BAY WI MELBOURNE FL RALEIGH NC STAMFORD CT
BALTIMORE MD COMPTON CA GREENVILLE SC MEMPHIS TN RAMSEY NJ STEVENS POINT WI
BARTLESVILLE OK CONCORD NC GULFPORT MS MERCERVILLE NJ REDDING CA STOCKTON CA
BATON ROUGE LA CONOGA PARK CA HACKENSACK NJ MIDLAND TX XXXXXXX VA STORM LAKE IA
BEAUFORT SC CORPUS CHRISTI TX HAMPTON VA MILWAUKEE WI REDWOOD CITY CA STUART FL
BEAUMONT TX XXXXXXXXX VA HARLINGEN TX MOBILE AL RENO NV SUMMIT IL
BEAVERTON OR DALLAS TX HARTFORD CT MONTGOMERY AL RESTON VA SUNNYVALE CA
4/23/99 PAGE 1
64
ANNEX 2
IN CONFIDENCE TO INTERMEDIA AND XXXXXXXX
BELLEFONTAINE OH DANVILLE VA HARTWELL GA MORRISTOWN NJ RIALTO CA SYRACUSE NY
BELLEVUE WA DAVENPORT IA HAYWARD CA MOUNTAIN VIEW CA RICHMOND CA TACOMA WA
BELLINGHAM WA DAVIS CA HICKSVILLE NY NAPERVILLE IL RICHMOND VA THOUSAND OAKS CA
BELPRE OH DAYTON OH HIGHPOINT NC NASHUA NH RIVERDALE IL TOLEDO OH
BENSENVILLE IL DAYTONA BEACH FL XXXXXXX NY NASHVILLE TN ROANOKE AL TOPEKA KS
BEVERLY HILLS CA DEARBORN MI HOLLYWOOD CA NATICK MA ROCHESTER NY TRENTON NJ
BILLERICA MA DENVER CO HOUSTON TX NEW BRIGHTON MN ROCKVILLE MD TROUTVILLE VA
BINGHAMPTON NY DES MOINES IA HOPEWELL VA NEW BRUNSWICK NJ ROSEMAYNE OH TROY MI
BIRMINGHAM AL DETROIT MI INDIANAPOLIS IN NEW ORLEANS LA ROSEMADE CA TULSA OK
BIRMINGHAM MI XXXXXX'X GROVE IL IOWA CITY IA NEW PALESTINE IN ROSEVILLE CA UTICA NY
BLOUNTSTOWN FL DOUGLASVILLE GA IRVING TX NEW YORK NY RUTHERFORD NJ VAN NUYS CA
BOCA RATON FL DUNWOODY GA JACKSON MI NEWARK NJ RYNEX NY VENTURA CA
BOISE ID DURHAM NC JOHNSON CITY TN NORFOLK VA SACRAMENTO CA VERO BEACH FL
BOSTON MA EDISON NJ JOPLIN MO NORTH DADE FL SALINAS CA WACO TX
BOULDER CO EL PASO TX KANSAS CITY MO NORTH ROYALTON OH SALISBURY CT WALNUT CREEK CA
BOUND BROOK NJ EL SEGUNDO CA KING OF PRUSSIA PA NORTH SACRAMENTO CA SAN ANTONIO TX WALTHAN MA
BROOK PARK OH EL TORO CA KIRKLAND WA OAK RIDGE TN SAN BRUNO CA WARREN MI
BUFFALO NY ELK GROVE IL KNOXVILLE TN OAKBROOK IL SAN CARLOS CA WARWICK NY
BURBANK CA EUCLID WI LACEY WA OCEANSIDE CA SAN DEIGO CA WASHINGTON DC
BURLINGTON NC EVANSVILLE IN LAKE CHARLES LA OKLAHOMA CITY OK SAN JOSE CA WATERLOO IA
BURLINGTON VT EVERETT WA LAKELAND FL OMAHA NE SANFORD NC XXXXX PA
CAMBRIDGE MA FAIR OAKS CA LANCASTER PA ONTARIO CA SANTA ANA CA WAYENSBORO VA
CARMEL IN FAIRFIELD CA LAS CRUCES NM ORANGEBURG SC SANTA BARBARA CA WEST ORANGE NJ
CARVALLIS OR FARMINGDALE BY LAS VEGAS NV OREGON IL SANTA CLARA CA WHEELING IL
CEDAR RAPIDS IA FLINT MI LAUREL SPRINGS NJ ORLANDO FL SANTA FE NM WHIPPANY NJ
CENTERVILLE VA FLORENCE SC LEBANON OH PALMDALE CA SANTA MARIA CA WHITE PLAINS NY
CHAMPAIGN IL FOLSOM CA LEMARS IA PALO ALTO CA SANTA MONICA CA WICHITA KS
CHAPEL HILL NC FOSTORIA OH LEXINGTON XX XXXXX PA SANTA ROSA CA WILLIAMSBURG VA
CHARLOTTE NC FRAMINGHAM MA LINCOLN NE PARK RIDGE IL SARASOTA FL WILMINGTON DE
CHARLOTTESVILLE VA FREDERICKSBURG VA LITTLE ROCK AR PAWTUCKET RI SAVANNAH GA WINCHESTER VA
CHARLTON MA FREMONT CA LITTLETON CO PEMBOKE NC SCHAUMBURG IL WINTER HAVEN FL
CHATTANOOGA TN FT LAUDERDALE FL LIVINGSTON NJ PENSACOLA FL XXXXXXX OAKS CA WOODBRIDGE VA
WORCESTER MA
YORK PA
4/23/99
Page 2
65
IN CONFIDENCE TO INTERMEDIA AND XXXXXXXX ANNEX 2
TABLE 3 - Off-net Capacity Price Table for Tier C cities
****
Notes:
1. The rates in Table 1 are applied to all capacity between:
a) Tier B cities listed in Table 2 above
b) Tier A cities (on-net) and Tier B cities
c) All assigned circuits provided through the Backbone Agreements (except
for the IFN FPL and MCI Sonet circuits), until migrated on-net
2. The rates in Table 3 are applied to all capacity between:
a) Tier C cities
b) Tier C cities and Tier B cities
c) Tier C cities and Tier A cities
3. All capacity will be provisioned on-net as far as geographically possible in
order to minimize off-net mileage.
4. Tier B cities may be duplicative of Tier A cities. In the event that
Xxxxxxxx is unable to provision an order from Intermedia for a circuit
between Tier A cities, for example, due to lack of capacity, Intermedia may
re-order the circuit with the request it be provisioned off-net, in which
case it will be treated as a Tier B or Tier C circuit, as applicable.
5. Further Tier B cities may be added to the Net in Table 2 by mutual agreement.
6. Rates for year 2002 and beyond will be established as described in Paragraph
13 of the Amendment.
7. The following circuits are subject to cost (pass-through) pricing until
migrated on-net: MCI SONET circuits and IFN FPL circuits
8. Ancillary Charges and Monthly Minimums of $50 XX-0, x000 XX-0, and $2,000
DS-3 Apply. The minimums for all OC services are ICB
4/23/99 Page 3
66
SERVICE ORDERING AND PROVISIONING METRICS AND REMEDIES
****
67
****
68
****
69
****
70
SERVICE ORDERING AND PROVISIONING METRICS AND REMEDIES
ANNEX 3
****
71
****
72
ANNEX 4
INTERCONNECT CITIES PROGRAMMED FOR 1999
CITY STATE TARGET DATE Note
Albany New York TBD *
Atlanta Georgia Jun-99
Boston Massachusetts TBD *
Chicago Illinois Mar-99
Cincinatti Ohio TBD *
Cleveland Ohio TBD *
Dallas/Fort Worth Texas Apr-99
Denver Colorado TBD *
Houston Texas TBD *
Jacksonville Florida Apr-99
Kansas City Missouri Jul-99
Los Angeles California Apr-99
Miami Florida Sep-99
Minneapolis Minnesota TBD *
Nashville Tennessee TBD *
New York New York May-99
Orlando Florida Aug-99
Philadelphia Pennsylvania TBD *
Phoenix Arizona TBD *
Pittsburgh Pennsylvania TBD *
Raleigh North Carolina Apr-99
Richmond Virginia TBD *
Salt Lake City Utah TBD *
San Francisco California Aug-99
St. Louis Missouri Jun-99
Tallahassee Florida TBD *
Tampa Florida Aug-99
Washington DC Apr-99
Note: * These interconnects and dates are under review
Based on our discussions the following cities have been removed from the
interconnect list
Birmingham Alabama
Indianapolis Indiana
Memphis Tennessee
New Orleans Louisiana
73
****
74
****
75
****
76
ANNEX 6
****
[To be provided by Xxxxxxxx]
77
AMENDMENT NO. 1
THIS AMENDMENT ("Amendment") is made and entered into effective this 1st day of
August, 1998, by and between XXXXXXXX COMMUNICATIONS, INC. ("Grantor")
and INTERMEDIA COMMUNICATIONS INC. ("Purchaser").
WHEREAS, Grantor and Purchaser are parties to that certain Capacity Purchase
Agreement entered into as of January 5, 1998, (the "Agreement"); and
WHEREAS, Grantor and Purchaser desire to amend the Agreement; and
NOW, THEREFORE in consideration of the foregoing premises and mutual promises
and covenants of the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, Grantor and Purchaser agree to amend the Agreement as
follows:
1. The definition of "Due Date" in Section 1.2, "Defined Terms" shall be
amended to read as follows:
"Due Date": the twenty-third (23rd) of the month following the month in
which an invoice is issued for Circuits under the Backbone Agreements, or the
last day of the month following the month in which an invoice is issued for
On-Net Circuits; provided that the Purchaser's payments of the Non-Recurring and
Monthly Recurring Charges shall be received by the Grantor in immediately
available funds.
2. Except as specifically amended herein, all terms and conditions and
provisions contained in the Agreement shall remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year
first above set forth.
XXXXXXXX COMMUNICATIONS, INC. INTERMEDIA COMMUNICATIONS INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
(SIGNATURE) (SIGNATURE)
Xxxxx X. Xxxxxxx Xxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
(PRINT) (PRINT)
Director, Accounting Services Vice President, Engineering
----------------------------------- -----------------------------------
(TITLE) (TITLE)
