Exhibit 10.28
AMENDMENT NO. 1 TO
AGREEMENT FOR THE PROVISION OF
FIBER OPTIC FACILITIES AND SERVICES
BETWEEN
ALABAMA POWER COMPANY AND
SOUTHERN INTEREXCHANGE FACILITIES, INC.
APC CONTRACT NUMBER SI001
THIS AMENDMENT, effective as of the 22nd day of March, 1991, is made by
and between ALABAMA POWER COMPANY (hereinafter referred to as "APC") and
SOUTHERN INTEREXCHANGE FACILITIES, INC. (hereinafter referred to as "SI"),
parties to the Agreement for the Provision of Fiber Optic Facilities and
Services, APC Contract Number SI001 (hereinafter referred to as the
"Agreement"), and sets forth the modifications to the Agreement as hereinafter
described.
WITNESSETH:
WHEREAS, APC and SI entered into the Agreement which provides for the use
of certain designated fibers which have been or will be placed in the static
wire which is a part of APC's transmission lines, which APC utilizes to operate
a fiber optic transmission system; and
WHEREAS, pursuant to the Agreement SI, as a condition of its use of certain
designated fiber optic cables, shall reimburse APC's Actual Cost, as defined
below, of constructing, installing and maintaining such fiber optic cables; and
WHEREAS, the parties desire that APC construct, install and maintain
certain transport electronics equipment in SI's Network on Route Segment No. 2,
in accordance with the terms and conditions of the Agreement as amended herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and promises hereinafter set forth the parties agree to amend the
Agreement as follows:
1. The parties agree that APC will install and maintain a transport
electronic equipment system in SI's Network located on Route Segment No. 2
(hereinafter the "APC Equipment") in accordance with the Agreement and this
Amendment. APC shall also engineer, in consultation with SI, the APC Equipment.
The APC Equipment shall, during the term of this Amendment, comply with AT&T
Compatibility Bulletin No. 119 (TA-34), dated October, 1979, and Bellcore's
Technical Publication 62508, and shall provide to SI a monitoring signal which
conforms to and is compatible with TBOS Telemetry Protocol.
2. SI shall reimburse APC for APC's Actual Cost, as defined in the
Agreement, of engineering and installation of the APC Equipment. SI shall also
reimburse APC for APC's Actual Cost of maintenance of the APC Equipment. Such
reimbursement shall be made
pursuant to the Agreement. Regarding maintenance costs, APC agrees to cap APC
Equipment maintenance costs during the term of this Amendment at a total of
$50,000 for the entire term hereof. If at any time maintenance costs exceed
this cap, SI agrees to reimburse APC, for the remaining term of this Amendment,
an amount equal to SI's proportion of the total capacity of the APC Equipment at
the time such maintenance charges exceed this cap. Maintenance costs as they
apply to the $50,000 cap are hereby defined as all costs incurred for
maintaining the APC Equipment, excluding damages caused by casualty.
3. APC shall maintain the APC Equipment in accordance with the applicable
standards set forth in this Amendment for end-to-end maintenance. The standards
for restoral services for the APC Equipment shall be at least as high as those
standards utilized by APC for the restoral of other portions of its internal
communication systems. APC agrees to dispatch its service technicians so as to
arrive on site within four (4) hours of the detection or notification of APC
Equipment problems. APC further agrees that if APC determines that it will not
be able to provide maintenance and restoral services as described above in a
timely manner due to other priorities or other situations as they may arise,
then APC will grant verbal authorization to SI to provide maintenance and
restoral services to such APC Equipment.
4. SI's obligation to reimburse APC for APC's Actual Cost in connection
with APC's operation, maintenance and repair of the APC Equipment shall
terminate upon the expiration of the term of this Amendment or prior termination
as provided in this Amendment.
5. APC shall be responsible for obtaining the APC Equipment described in
the attached Exhibit "A". Should APC be successful in constructing and
installing the Cable on Route Segment Number 2 for an average Actual Cost of
$12,000 or less per mile, excluding the acquisition cost of the Cable and the
cost of the splices, resulting in APC earning the right to payment of the
maximum allowable incentive payments as provided in Subarticle 5.1 of the
Agreement, then, and in that event, SI shall reimburse APC for the Actual Cost
of the APC Equipment in lieu of payment of the incentive payments due APC and
title to the APC Equipment shall remain in APC. Should APC not be successful in
constructing and installing the Cable on Route Segment Number 2 as provided in
this paragraph, then, and in that event, APC shall elect to either (i) pay to SI
the amount of the difference between the maximum incentive available under
Subarticle 5.1 and the actual incentive earned or (ii) terminate this Amendment
at any time, but in any event not later than one year from the date hereof, and
receive any and all incentive payments due APC as provided in Subarticle 5.1 of
the Agreement. Should APC elect to terminate this Amendment as provided herein,
all rights, title and interests to the APC Equipment shall vest in SI
immediately upon SI's receipt of written notification of APC's election to
terminate and operation,
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maintenance and restoral of APC Equipment shall be governed by the Agreement.
Upon installation of the APC Equipment, and payment in full of all amounts due
APC under the terms of the Agreement and this Amendment with respect to the APC
Equipment, SI shall have the right to terminate this Amendment at any time
thereafter upon written notice to APC, and shall have no further liability to
APC under this Amendment.
6. The APC Equipment to be installed under this Amendment shall have a
capacity to 12 DS-3s, of which SI shall initially be entitled to a capacity of 9
DS-3s. As APC's needs for capacity on such APC Equipment increase, as
determined by APC, APC shall be entitled to additional capacity, provided that
APC shall give SI six (6) months written notice prior to the in-service date of
any increase in APC's capacity requirements. APC agrees that it will, during
the term of this Amendment, assure SI of capacity in the APC Equipment of 6 DS-
3s. Should APC require more than 6 DS-3s of capacity during the term of this
Amendment, SI agrees to provide one (1) pair of dark fibers on Route Segment No.
2 to APC for APC to install additional transport electronics and to utilize the
same for APC's increased capacity requirements during the term of this
Amendment.
7. APC shall have absolute legal title to and beneficial ownership of the
APC Equipment, unless said ownership rights are conveyed by APC pursuant to
Paragraph 5 of this Amendment. Legal title to any item attached to APC
Equipment, excepting any item solely for the exclusive use and benefit of SI,
which is purchased or obtained initially by SI shall vest in APC upon delivery
of such item to APC.
8. If all or any APC Equipment is damaged or destroyed by casualty, APC
shall promptly repair, restore or replace the APC Equipment. Provided, however,
that nothing herein shall be construed to preclude APC from giving higher
priority to the restoration or preservation of electric power service (including
without limitation the restoration or preservation of communications capability
that in APC's judgment is immediately necessary to provision of electric power
service) than to the restoration of service hereunder. Should APC determine that
it will not be able to provide repair, restoral or restoration services as
described above promptly, APC shall grant verbal authorization to SI to provide
repair, restoral and replacement services to APC Equipment.
9. The repair, restoration and replacement of the APC Equipment shall be
at the sole expense of SI as provided herein; provided, however, that if any APC
Equipment located in the SI Network is damaged or destroyed due in whole or in
part to the negligence or willful misconduct of APC, then APC shall bear the
proportion of the cost of APC repairing, restoring or replacing of such APC
Equipment for the damage to or destruction of which it is
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causally responsible.
10. SI agrees, upon reasonable request and as reasonably required to allow
APC direct ingress and egress to all APC Equipment, and to permit APC to be on
SI's premises at such times as may be required for APC to perform any
appropriate maintenance and repair of APC Equipment. SI may require that a
representative of SI accompany any representatives of APC having access to the
APC Equipment. Employees and agents of APC shall, while on the premises of SI,
comply with all rules and regulations, including without limitation security
requirements and, where required by government regulations, receipt of
satisfactory governmental clearances. APC shall provide to SI a list of APC's
employees or authorized APC designee employees who are performing work on, or
who have access to, the APC Equipment. SI shall have the right to notify APC
that certain APC or authorized APC designee employees are excluded if, in the
reasonable judgment of SI, the exclusion of such employees is necessary for the
proper security and maintenance of SI's facilities.
11. This Amendment shall expire on June 1, 1998 unless sooner terminated
as provided herein or in the Agreement. Provided, however, that APC may, at
its option, extend the term of this Amendment for a mutually agreeable period of
time.
12. Except as provided in Paragraph 5 of this Amendment, upon expiration or
termination of this Agreement for any reason, SI shall have no further
beneficial use of or any rights or interest in the APC Equipment; APC shall have
absolute legal and beneficial ownership of the APC Equipment and such APC
Equipment shall thereafter be governed by the Agreement.
Except as modified by this Amendment, all terms and conditions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed on their behalf, as of the day and year first hereinabove set forth.
ALABAMA POWER COMPANY SOUTHERN INTEREXCHANGE
FACILITIES, INC.
By: /s/ X. X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: X. X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxxx
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(Printed or typed) (Printed or typed)
Title: Vice President - Information Title: Vice President
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