Exhibit 10.40
Contract K-177
COLLOCATE AGREEMENT
THIS AGREEMENT is entered into this 7th day of January , 1991
---- ----------- --
between Xxxxxxxx Telecommunications Services, Inc. ("WTG"), a wholly owned
subsidiary of Xxxxxxxx Telecommunications Group, Inc. with and on behalf
of WTG Affiliates (hereinafter defined), and Southern Interexchange
----------------------
Facilities, Inc., a Alabama corporation, with its principal office at
---------------- -------
000 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxxxxx 00000 ("Customer").
---------------------------------------------
RECITALS:
WHEREAS, WTG has the requisite authority to act on behalf of WTG
Affiliates, and the parties designated herein as WTG Affiliates are entities,
business organizations or enterprises in which the majority of stock or
controlling interest is owned or controlled by the same entity owning or
controlling the majority of stock or controlling shares of WTG (the "WTG
Affiliates"); and,
WHEREAS, for purposes of this Agreement, the term "WTG" shall also be
deemed to refer to the appropriate WTG Affiliate which is the lessee or owner of
the Space (as hereinafter defined) in question as identified on the Collocate
Schedule(s) (as hereinafter defined); and,
WHEREAS, WTG Affiliates currently own or lease certain premises (the
"Premises") described in the Collocate Schedule(s) and amendments thereto, if
any, identified herewith and made a part hereof, at which certain services
will be provided in conformity with the applicable specifications set forth in
Exhibits to each Collocate Schedule. Each Collocate Schedule shall only be
effective upon its being dated and subscribed to by the parties for
identification purposes and together with the terms hereof shall constitute the
exclusive agreement between the parties with respect to the Space (collectively
the "Agreement"); and,
WHEREAS, Customer desires access to the Premises and to locate therein
certain telecommunications equipment and cabling (hereinafter the "Equipment")
for the purpose of interconnecting the Equipment with the WTG Affiliates'
telecommunications network (the "WTG Network"); and,
WHEREAS, WTG on behalf of WTG Affiliates, is willing to grant Customer a
license to occupy a portion of the Premises upon the terms and conditions
hereinafter set forth.
1 of 16
Contract K-177
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
WTG and Customer hereby agree as follows:
1. LICENSE TO OCCUPY AND RELOCATION PROVISIONS. WTG hereby grants to
Customer a license to occupy the portion of the Premises depicted in each
Collocate Schedule (the "Space"). The Space is accepted "AS-IS" by Customer. It
is expressly understood that Customer may use the Space only for the purposes of
installing, maintaining and operating the Equipment to interconnect with digital
telecommunications services provided to Customer or Customer's customer(s) by
WTG. Only upon the express written consent of WTG may Customer interconnect the
Equipment with telecommunications service provided to Customer by others. If
Customer should interconnect with any entity other than WTG without obtaining
the written consent of WTG, Customer will be in breach of this Agreement, and
WTG may pursue any legal or equitable remedy, including but not limited to the
immediate termination of the license pursuant to Paragraph 11 of this Agreement.
Upon sixty (60) days' prior written notice or, in the event of an
emergency, such time as may be reasonable, WTG may require Customer to relocate
the Equipment; provided, however, the site of relocation shall afford comparable
environmental conditions for the Equipment and comparable accessibility to the
Equipment. All costs of relocating the Equipment shall be borne by Customer;
provided, however, Customer shall not be required to pay for the cost of
improving the Space to which the Equipment may be relocated.
2. SERVICES; STANDARD SPECS; SPECIAL TERMS. WTG shall provide Customer
with the services (the "Services") described in Exhibits attached to each
Collocate Schedule and incorporated therein by reference. The Services will be
performed at the Space during the Term (as hereinafter defined) of the license
relevant to the Space and any month-to-month extension thereof, if applicable.
WTG does not warrant that the Services will be free from any interruptions for
any reason whatsoever and WTG shall not be liable for any failure to provide the
Services where such failure is due to an act of God, governmental control or
other factors beyond the reasonable control of WTG.
Customer shall abide by the Standard Specifications as set forth in
Exhibits incorporated by reference in each Collocate Schedule. Customer agrees
to maintain all of its Equipment placed in the Space at Customer's expense.
Special terms and conditions, if any, relevant to a particular Space may be
negotiated between the parties and set forth in the Collocate
2 of 16
Contract K-177
Schedule(s). Such special terms and conditions shall control in the event of a
conflict between such terms and the terms stated herein.
3. TERM, OPTIONS TO RENEW AND POSSESSION. The date on which the
Customer's license to occupy the Space commences and the terms of the
Customer's license to occupy the Space are set forth in the Collocate
Schedule(s) (the "Initial Term").
Subject to the conditions specified below in this Paragraph 3, Customer
shall have the option, upon thirty (30) days' prior written notice to WTG, to
renew its license to occupy the Space for the period(s) of time (the "Renewal
Periods") and on the terms and conditions which are set forth in this Agreement
and the Collocate Schedule relevant thereto. The Initial Term and any Renewal
Periods are sometimes collectively referred to as the "Term".
Customer's option to renew its license to occupy the Space shall be
contingent on the election by WTG Affiliates to continue to own or lease the
Premises in which the Space is located for the duration of the Renewal
Period(s), such election to be exercised at the sole discretion of the
appropriate WTG Affiliate.
Following the expiration of the Initial Term or Renewal Period, if any,
stated in the Collocate Schedule(s) or failure of the parties to enter into any
Renewal Periods, Customer's license shall continue in effect on a month-to-month
basis upon the same terms and conditions specified herein, unless terminated by
either Customer or WTG upon thirty (30) days' prior written notice.
If WTG fails for any reason to tender possession of the Space to Customer
on or before the Commencement Date (specified in the Collocate Schedule relevant
thereto) this Agreement shall not be void or voidable and WTG shall not be
liable to Customer in any way as a result of such failure to tender possession.
In the event that WTG is delayed in tendering possession of the Space to
Customer for any reason other than the acts or omissions of Customer, Customer
shall not be obligated to pay the Occupancy Fee (as hereinafter defined)
hereunder until such time as WTG tenders possession of the Space to the
Customer.
4. OCCUPANCY FEE AND TAXES. Customer shall pay to WTG the Occupancy Fee
set forth in each Collocate Schedule for the license to locate its Equipment in
the Space described therein.
The Occupancy Fee shall be payable in advance and without notice or demand
and without abatement, deduction, counterclaim or setoff commencing
3 of 16
Contract K-177
on the first day of the Term relevant to the license for the use of the Space
and on the first day of each calendar month thereafter during the Term, and any
month-to-month term if applicable (charges for partial months shall be
prorated). The Occupancy Fee shall be increased by any increases to the rental
incurred by WTG and required under the lease, if any, relevant to the Premises
in which the Space is located (the "Lease"). Customer shall pay to WTG its pro
rata share of any such increase based on the number of square feet of the Space
compared to the number of square feet leased by WTG under the applicable Lease.
Customer shall be liable to pay the increased Occupancy Fee when WTG becomes
liable for such payments under the applicable Lease. WTG shall notify Customer
of such increase as soon as practicable.
In addition, Customer shall be fully responsible for the prompt payment of
all federal, state or local taxes, however denominated, based on or calculated
with respect to the amounts payable by the Customer pursuant to this Agreement
(including but not limited to sales/use, rental and gross receipts taxes) and
all taxes (including, but not limited to franchise, income and miscellaneous
taxes) which are the liabilities of the Customer under (i) appropriate standard
industry practices (including telecommunications, fiber optic and rental
industries), (ii) applicable law and (iii) as otherwise agreed at any time
between Customer and WTG notwithstanding that the incidence thereof may be on
WTG; provided, however, the taxes on WTG's income and property shall be the
sole responsibility of WTG.
Customer agrees to indemnify, defend and hold WTG and WTG Affiliates
harmless from any liabilities, costs, expenses (including without limitation,
reasonable expenses of investigation and attorneys' fees and expenses),
assessments, settlements or judgments arising out of or incident to the
imposition, assessment or assertion by any taxing authority of any tax liability
or increase in tax liability which is an obligation of Customer arising under
this Agreement.
5. SERVICE FEE AND BUILD-OUT FEE. Customer shall pay to WTG for the
Services rendered pursuant to this Agreement the Service Fee set forth in each
Collocate Schedule (the "Service Fee"). The Service Fee shall be payable in
advance and without notice commencing on the first day of the Term relevant to
the license for the use of the Space and on the first day of each Calendar
month thereafter during the said Term, and any month-to-month term if
applicable (charges for partial months shall be prorated). The Service Fee
shall be paid without notice or demand and without deduction, counterclaim or
setoff.
4 of 16
Contract K-177
Customer shall also pay to WTG the amount set forth in each Collocate
Schedule as Customer's pro rata share of the cost of the improvements to the
Space required to be made by WTG in order to permit WTG to provide the Services,
excluding the Equipment (the "Build-out Fee"). The Build-out Fee shall be
payable to WTG as compensation for such costs upon Customer's execution of the
Collocate Schedule relevant to the Space in question. Upon payment of the
Build-out Fee, Customer shall be deemed to own such improvements during the Term
of the license relevant to the Space upon which such improvements are made.
Upon termination of the license, all of Customer's ownership rights in said
improvements shall automatically terminate and be of no further force or effect.
6. LANDLORD SERVICES. It is understood and agreed that WTG will not
directly provide any of the services provided by the landlord of the Premises in
which the Space is located (the "Landlord") to WTG under the appropriate Lease,
but rather all services provided by the Landlord to WTG will be made available
to Customer on the same basis as made available to WTG.
WTG does not warrant that the use of the Space will be free from any
interruptions for any reason whatsoever and WTG shall not be liable for any
failure of the Space to be fit for the purpose to which Customer intends to put
the Space.
7. INSURANCE. Customer and Customer's contractors, if any, shall be
required to provide and maintain at all times during the Term relevant to any
license granted hereunder, during any thirty day removal period pursuant to
Paragraph 8 of this Agreement and during any month-to-month term if applicable,
the following types of insurance in the following minimum amounts, which
insurance shall be issued by companies which have a best guide rating of at
least A-11. Irrespective of the requirements as to insurance to be carried, the
insolvency, bankruptcy, or failure of any such insurance for the Customer, or
the failure of any such insurance company to pay claims that occur shall not be
held to waive any of the provisions hereof.
a. Worker's Compensation Insurance complying with the law of the
state or states in which the work is to be performed, whether or not
Customer or its contractors are required by such laws to maintain such
insurance, and Employer's Liability insurance with the limit of $100,000
each occurrence; including all states except Nevada, North Dakota, Ohio,
Washington, Wyoming and West Virginia. If it is necessary to work in any of
the above mentioned states, Customer must participate in the state fund
established there and provide evidence of Stop Gap coverage.
5 of 16
Contract K-177
b. Commercial General Liability insurance with a combined single
limit of $1,000,000 each occurrence/$2,000,000 aggregate, against claims
for bodily injury, death, and property damage. Such policy shall include
coverage for all operations of Customer, including independent contractor's
coverage, blanket contractual liability and the policy will be endorsed to
eliminate exclusion of work, construction or demolition within fifty (50)
feet of railroad trackage; broad form property damage including completed
operations; and where applicable, property damage liability resulting from
blasting or explosion, collapse or structural injury and/or
subsurface operations. Such policy shall include no modifications that
reduce the standard coverages provided under a Commercial General Liability
policy form.
c. Business Automobile Liability insurance with a single limit
combined for bodily injury and property damage of $1,000,000 each
occurrence to include coverage for all owned, non-owned and hired vehicles.
d. Excess or Umbrella Liability coverage with a combined single
limit of $1,000,000 per occurrence to be excess of (a) through (c).
In the event coverage is denied or reimbursement of a properly presented
claim is disputed by the carrier for insurance provided in (a) through (d)
above, Customer shall, upon written request, provide WTG with a certified copy
of the involved insurance policy or policies within ten (10) business days of
receipt of such request, providing such disclosure shall not render the policy
void or voidable by insurer as to the coverages and any other respects.
WTG, WTG Affiliates and the Landlord shall not insure or be responsible
for any loss or damage to property of any kind owned or leased by the Customer
or its employees, servants and agents. Any policy of insurance covering the
Equipment owned or leased by Customer against loss by physical damage shall
provide that underwriters have given their permission to waive their rights
of subrogation against WTG, WTG Affiliates and the Landlord, their directors,
officers and employees, as well as their subsidiaries and affiliates,
including the directors, officers and employees thereof.
Customer and WTG hereby waive (and shall require of its contractors to
waive) all expressed and/or implied rights of subrogation and each party waives
all underwriters' rights of subrogation against such other
6 of 16
Contract K-177
party, its affiliates and the underlying Landlord, their shareholders, officers,
directors, agents and employees, and the officers, directors, agents and
employees of their corporate shareholders, providing such waiver of subrogation,
in writing prior to loss, shall not render insurance policies or coverages
void.
The foregoing insurance shall be evidenced to WTG and the Landlord by
certificates of insurance, with the exception of the Workers
Compensation Insurance policy, the Landlord shall be named as an additional
insured (the appropriate Landlord is identified in each Collocate Schedule)
which shall be delivered to WTG upon initial payment of the Build-out Fee. The
certificates of insurance shall show that the insurance is prepaid, and in full
force and effect and that such insurance shall not be cancelled, non-renewed or
decreased during the Term relevant to any license granted hereunder, or during
any month-to-month term if applicable, without at least thirty (30) days'
written notice to WTG. The maintenance of insurance by the Customer shall in no
way limit or affect the extent of the Customer's liability.
It is hereby agreed that the insurance requirements of this Paragraph 7
shall be the insurance requirements under this Agreement unless otherwise
required by the Landlord pursuant to the Lease relevant to the Premises in
question, in which event Customer hereby agrees to comply with the Landlord's
requirements under the Lease, as the Lease may be modified from time to time.
8. IMPROVEMENTS TO SPACE AND PREMISES; QUIET ENJOYMENT. In the
event Customer desires to make improvements to the Space which
improvements are deemed to be material and substantial as reasonably determined
by WTG ("Material Improvements"), Customer shall submit all plans and
specifications for such work to be performed in the Space to WTG for WTG's prior
written approval, which approval shall not be unreasonably withheld or delayed.
WTG shall submit all such plans and specifications for Material Improvements to
the appropriate Landlord for the Landlord's prior written approval. No
construction for Material improvements may commence until both of the foregoing
consents are obtained. Customer covenants and agrees that its use of the Space
will not interfere with WTG's use of its Premises or other tenants' use of their
premises in the building in which the Premises are located. WTG covenants and
agrees with Customer that WTG's use of the Premises and/or the use of the
Premises by WTG's other customers will not interfere with Customer's use of the
Space.
Customer shall not employ any contractor to perform Material Improvements
unless previously approved in writing by WTG which approval shall not be
unreasonably withheld (and approved in writing by the
7 of 00
Xxxxxxxx X-000
Xxxxxxxx if required by the Lease). Customer and each contractor and
subcontractor participating in performing Material Improvements shall guarantee
that such work will be free from all mechanic's and/or material liens and free
from any and all defects in workmanship and materials for the period of time
which customarily applies in good contracting practice, but in no event for less
than one (1) year after the acceptance of the work by Customer and WTG. The
aforesaid guarantees of each such contractor and subcontractor and Customer
shall include the obligation to repair or replace in a thoroughly first-class
and workmanlike manner all defects in workmanship and materials without any
additional charge. All the Material Improvements shall be contained in the
contracts and subcontracts for performance of Customer's work and shall be
written so that they shall inure to the benefit of WTG and Customer as their
respective interests may appear. Such warranties and guarantees shall be so
written that they can be directly enforced by either Customer or WTG, and
Customer shall give to WTG any assignment or other assurance to effectuate the
same.
It shall be the Customer's responsibility to cause each of Customer's
contractors and subcontractors to maintain continuous protection of premises
adjacent to the Space in such manner as to prevent any damage to such adjacent
property by reason of the performance of Customer's work.
All of Customer's work shall be coordinated with all work being performed
or to be performed by WTG and other tenants of the building in which the
Premises are located. The contractor or subcontractor shall not at any time
damage, injure, interfere with or delay the completion of any other construction
within the building; and they and each of them shall comply with all procedures
and regulations prescribed by WTG and the Landlord of the Premises for
integration of Customer's work with the work to be performed in connection with
the construction of the building, and all other construction within the building
which comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements and/or
appurtenances attached to or built into, on or about the Space prior to or
during the Term of the license relevant thereto, whether by WTG at its expense
or at the expense of Customer, or by Customer at its expense or by previous
occupants of the Space, shall be and remain part of the Space and shall not be
removed by Customer at the end of the Term of the license relevant to the Space.
Upon the termination or expiration of the Term relevant to the Space, WTG shall
allow Customer thirty (30) days from the date of such termination or expiration,
at Customer's sole cost and expense, to remove all trade fixtures (including,
but not limited to,
8 of 16
Contract K-177
equipment racks, rectifiers/chargers, batteries, AC power conditioning
equipment, telecommunication switching equipment, channel banks, etc.) installed
by Customer, provided that the Space is restored by Customer to its condition
before the installation of such items and that all such work (including
restoration) is performed in accordance with the other provisions of this
Agreement. If Customer shall fail to complete such removal and restoration,
within the aforesaid thirty (30) day time period, all such trade fixtures
remaining within the Space or at the Premises shall be the sole property of WTG.
All work affecting the Space shall be in compliance with all laws,
ordinances, rules, regulations, orders and directives of governmental and quasi-
governmental bodies and authorities having jurisdiction over the Premises and
the Space from time to time and Customer shall obtain and keep in effect all
licenses, permits and other authorizations required with respect to the business
conducted by Customer within the Space.
9. EMERGENCY PHONE NUMBERS. Customer shall provide WTG with means of
access to the Space and except in the case of an emergency, upon not less than
twenty-four (24) hours' notice, WTG shall have the right to enter the Space for
the purpose of inspecting the same. Customer shall, upon execution of this
Agreement, provide WTG with a twenty-four (24) hour maintenance number for
trouble notification and resolution by inserting said telephone number(s) in
the Collocate Schedule(s). In addition, Customer shall place such number at a
visible location outside the Space.
10. SOLE USE OF SPACE BY CUSTOMER. Customer acknowledges that it has
been granted only a license to occupy the Space and that it has not been granted
any real property interests in the Space and that neither this Agreement nor any
interest created herein will be assigned, mortgaged, subleased, encumbered or
otherwise transferred, and that neither the Space nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part of
Customer, or used or occupied, or permitted to be used or occupied, by anyone
other than Customer. Any attempt to allow the use or occupation of the Space by
anyone other than Customer to assign, mortgage, sublease or encumber any rights
under this Agreement by Customer shall, unless otherwise agreed to in writing by
WTG, be void and in such event, WTG shall have the right to terminate this
Agreement as to any or all Space occupied by Customer. Such written agreement by
WTG shall be subject to the sole discretion of WTG.
11. DEFAULT. If any payment due pursuant to this Agreement shall remain
unpaid for a period of ten (10) days after the same shall become due and
payable, if Customer fails to perform or fulfill any other
9 of 16
Contract K-177
covenant or provision of this Agreement and any such matter is not remedied
within thirty (30) days after the receipt of written notice thereof from WTG or
if Customer should interconnect with any other party without written consent
from WTG pursuant to Paragraph 1 of this Agreement, then Customer shall be in
default under this Agreement and any license granted hereunder shall thereupon,
at WTG's sole option and by virtue of this express stipulation, expire and
terminate and be of no further force or effect as to any or all Space occupied
by Customer. In the event of default by Customer, Customer agrees to pay any
and all reasonable costs incurred by WTG in the enforcement of this Agreement,
including reasonable attorney's fees. Any extension of time granted to Customer
by WTG to cure a default shall be effective if made in writing. The granting of
such an extension by WTG or failure to act with respect to a default by Customer
or waiver of a default by Customer shall not constitute a permanent waiver by
WTG of its rights hereunder with respect to any future act or default by
Customer, which is the same or similar, or any failure to cure such default upon
the expiration of any extension granted by WTG to Customer.
Customer shall be in default under this Agreement if Customer is in default
under any other agreement between Customer and WTG, and Customer shall be in
default under any other agreement between Customer and WTG if Customer is in
default under this Agreement.
12. NOTICES. All notices, consents, and other communications required
or permitted hereunder shall be in writing and shall be mailed or delivered as
follows (or to such additional or other persons, at such other address or
addresses as any be designated by notice of the appropriate party.)
TO WTG: XXXXXXXX TELECOMMUNICATIONS SERVICES, INC.
Xxx Xxxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxx, Xxxxxxxx 00000
Attention: Contract Administration
To Customer: Southern Interexchange Facilities, Inc.
------------------------------------------
000 Xxxxx Xxxx Xxxxxx
------------------------------------------
P. O. Drawer E
------------------------------------------
Arab, Alabama 35016
------------------------------------------
Attention: Vice President, Network and
-------------------------------
General Counsel
-------------------------------
10 of 16
Contract K-177
Mailed communications shall be sent by United States certified or
registered mail, postage prepaid or by a generally recognized overnight delivery
system such as Federal Express Service. Such communications shall be deemed
effective upon delivery to WTG or Customer, as the case may be, at their
respective addresses stated above.
13. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(A) Except for actual damages to the Space and/or the Equipment knowingly
and willfully caused by WTG, its agents, employees or affiliated companies,
WTG's liability for damages incurred by Customer for any other cause whatsoever
shall be limited to the charges due WTG under this Agreement. As used in this
Subparagraph 13(A) the term "actual damages" shall mean the cost to restore the
Space to a state substantially similar to that which existed as of the
Commencement Date and the cost to repair the Equipment to a state of working
order or the replacement value of the Equipment if such damage renders said
Equipment beyond a reasonable state of repair.
(B) Neither Customer nor WTG shall be liable to each other for any
incidental, indirect, special, consequential, punitive or reliance damages of
any nature whatsoever regardless of the foreseeability thereof (including,
but not limited to, any claim from any client, customer or patron for loss of
services, lost profits or lost revenues) arising under or in connection with
this Agreement, or the performance thereunder, from any breach or partial breach
or potential breach of the provisions of this Agreement or arising out of any
act or omission by either WTG or Customer, their respective employees, servants
or agents whether based on breach of contract, breach of warranty, negligence or
any other theory of liability.
(C) Customer shall indemnify, defend and hold harmless WTG from any
claims, demands, actions, damages, liability, judgments, expenses and costs
(including attorneys' fees) arising from Customer's use of the Space or
Services, or the use by any third party (e.g., Customer's customers) of the
Space or Services (unless caused by WTG's willful misconduct), or by reason of
any breach or nonperformance of any covenant or obligation of Customer herein,
or the violation of any law or regulation by Customer. Customer's obligation to
assume, protect, defend, indemnify and save WTG harmless shall extend to WTG's
officers, directors, agents and employees of any corporate shareholder of WTG,
and shall continue for so long as any of the named indemnities may be subjected
to claims or suits calling for such obligations provided, however, that Customer
shall not be obligated to indemnify, defend or hold harmless WTG and the named
indemnitees from claims, demands, actions, damages, liability, judgments,
expenses and costs arising from or asserted by third parties against WTG on
account of
11 of 16
Contract K-177
physical property damage to such third party's property located upon the
Premises (exclusive of the Space) or personal injury to such third party to the
extent such damage is caused by any negligence or willful misconduct of WTG or
its agents or employees.
(D) WTG shall have no liability of any kind whatsoever to any person,
firm or entity for any act or omission of WTG, its agents or employees excepting
and only as follows: WTG, at its own expense will indemnify Customer and hold
Customer harmless with respect to any and all loss, damage, liability or expense
asserted against Customer by a third party on account of any physical property
damage to such third party's property located upon the Premises (exclusive of
the Space) or personal injury to such third party to the extent caused by the
negligence or willful misconduct of WTG or its agents or employees arising out
of WTG's performance of this Agreement. WTG's obligation to indemnify and hold
Customer harmless shall extend to Customer's officers, directors, employees,
agents and employees of any corporate shareholders of Customer, and shall
continue for so long as any of the named indemnities may be subject to claims or
suits calling for such obligations.
14. USE. At any time during the term of this Agreement, WTG may, at
WTG's sole option, immediately terminate this Agreement if Customer is not then
maintaining the Equipment solely for the purpose of originating and/or
terminating telecommunications transmissions carried over the WTG Network.
Customer further understands and agrees that WTG shall only respond to requests
by WTG interexchange service customers (as designated in writing by Customer to
WTG from time to time) to interconnect the Equipment with the WTG Network and
the specifics regarding each interconnection, including but not limited to the
operating performance of each interconnection. Nothing provided for herein shall
exclude Customer from becoming an interexchange service customer of WTG. If,
however, Customer is a party for which WTG is maintaining an interconnection
between the WTG Network and the Equipment, then customer shall at all times
maintain not less than $10,000.00 per month in current charges from WTG for
----------
interexchange service capacity and for which at least a portion of such
interexchange capacity originates and/or terminates in the Space in question. If
Customer is such a sole interconnect party and fails to maintain $l0,000.00 per
----------
month or more in current charges, WTG shall have cause, at its sole option and
upon ninety (90) days advance written notice to Customer, to terminate this
Agreement with respect to the Space in question.
15. EMINENT DOMAIN. In the event of a taking by eminent domain (or a
conveyance by any Landlord of all or any portion of the Premises to an entity
having the power of eminent domain after receipt of actual
12 of 16
Contract K-177
notice of the threat of such taking) of all or any portion of the Premises so as
to prevent, in WTG's sole discretion, the utilization by Customer of the Space
in the Premises, this Agreement shall terminate as of the date of such taking or
conveyance and the Occupancy Fee and Service Fee paid or to be paid by Customer
shall be reduced accordingly. Except as set forth below, Customer shall have no
claim against WTG for the value of the unexpired Term of the license affected
thereby (or any portion thereof) or any claim or right to any portion of the
amount that might be awarded to the Landlord of the Premises or WTG Affiliates
as a result of any such payment for condemnation or damages. Nothing contained
in this Agreement should prohibit Customer from seeking any relief or remedy
against the condemning authority in the event of an Eminent Domain proceeding or
condemnation which affects the Space.
16. DAMAGE TO PREMISES. If the building in which the Premises are located
is damaged by fire or other casualty, WTG shall give immediate notice to
Customer of such damage. If a Landlord or WTG Affiliate exercises an option to
terminate a particular Lease due to damage or destruction of the Premises
subject to such Lease, or such WTG Affiliate decides not to rebuild such
building or portion thereof in which the Space is located, this Agreement shall
terminate as of the date of such exercise or decision as to the affected Space
and the Occupancy Fee and Service Fee paid by Customer shall be modified
accordingly. If neither the Landlord of the affected Premises nor the WTG
Affiliate exercises the right to terminate, WTG Affiliates shall repair the
particular Space to substantially the same condition it was in prior to the
damage, completing the same with reasonable speed. In the event that such WTG
Affiliate shall fail to complete the repair within a reasonable time period,
Customer shall thereupon have the option to terminate this Agreement with
respect to the affected Space, which option shall be the sole remedy available
to Customer against WTG and WTG Affiliates under this Agreement relating to such
failure. If the Space or any portion thereof shall be rendered untenable by
reason of such damage, the Occupancy Fee and Service Fee for such Space shall
proportionately xxxxx, based on the amount of square footage which is rendered
untenable, for the period from the date of such damage to the date when such
damage shall have been repaired for the portion of the Space rendered untenable.
Customer shall have the option to terminate this Agreement at any time after the
expiration of thirty (30) days from the date of the fire or casualty affecting
the Space, if WTG fails to inform Customer in writing of its decision to rebuild
or repair the Space.
17. SUBORDINATION. Customer hereby agrees that this Agreement shall be
subject and subordinate to any mortgage, trust deed or deed of trust or lease
that has heretofore been or may hereafter be placed upon
13 of 16
Contract K-177
the Premises wherein the Space is located, or any part thereof. Any license
granted hereunder shall not be granted in controvention of any mortgage, trust
deed or deed of trust or lease pursuant to the underlying lease or the same
shall be voidable by WTG.
18. LIEN ON EQUIPMENT. WTG shall have no rights to or interest in the
Equipment other than statutory rights granted a landlord with respect to the
property of a tenant (commercial or residential). In all other respects, the
Equipment shall remain the sole property of Customer. However, in the event
Customer fails to pay WTG for amounts due hereunder and is in default of this
Agreement, WTG shall have a lien upon the Equipment and all other personal
property of the Customer which may be located in or upon the Premises. Such
lien, subject to the rights of third parties, if any, with security interests in
the Equipment, may be enforced by WTG for Customer's failure to pay amounts due
hereunder by the taking and selling of such Equipment and/or property, said sale
to be made upon thirty (30) days' written notice served upon the Customer, or
such lien may be enforced in any other manner at the sole option of WTG. The
lien provided for herein shall not be recordable as a security interest in the
Equipment and shall only arise in the event Customer is in default of this
Agreement.
19. ASSIGNMENT -- CHANGE IN CONTROL. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors or assigns. Except as security for financing or in connection with
the enforcement of the security interests so granted, Customer shall not assign
or transfer this Agreement to any third party which is not an existing affiliate
or subsidiary of Customer as of the date of this Agreement without the prior
written consent of WTG, which consent may be granted or withheld at the sole
discretion of WTG. A transfer or assignment of this Agreement shall include a
sale of all or substantially all of the assets of Customer or a change in
control of Customer. "Change in control" means that (i) a person, corporation,
entity or group acquires, directly or indirectly, the beneficial ownership of
50% or more of the issued and outstanding stock of Customer in a single or
series of transactions, or (ii) Customer is a party to a merger, consolidation
or similar transaction and following such transaction 50% or more of the issued
and outstanding securities of Customer are beneficially owned by said person,
corporation, entity or group. In the event Customer shall require the
purchaser, as a condition of such sale, to agree that the purchaser will assume
this Agreement and continue to perform all of the obligations of the Customer
under this Agreement. With respect to a change in control of Customer, this
Agreement shall continue in force and the parties shall continue to perform
their respective obligations and
14 of 16
Contract K-177
retain their respective rights in accordance with the terms and conditions
specified herein.
20. ENTIRE AGREEMENT MODIFICATION OF AGREEMENTS. This Agreement and the
Collocate Schedule(s) identified herewith and made a part hereof contain all
agreements of the parties with respect to the Space delineated in each
Collocate Schedule. No prior agreement or understanding pertaining to
such Space shall be effective. This Agreement may be modified in writing only
when signed by the parties in interest at the time of modification. Customer
specifically acknowledges that neither WTG nor any agent or employee of WTG has
made any representations, warranties or promises except as herein expressly set
forth in this Agreement and the Collocate Schedule(s) identified herewith.
21. NO WAIVERS. A waiver by either party of any of the covenants or
agreements hereof to be performed by the other party shall not be construed to
be a waiver of any succeeding breaches thereof or of any other covenants or
agreements herein contained to be performed by the other party.
22. EFFECT OF UNENFORCEABLE PROVISIONS. A determination by a court of
competent jurisdiction that any provision of this Agreement or any part hereof
is illegal or unenforceable shall not cancel or invalidate the remainder of such
provision or other provisions of this Agreement which shall remain in full force
and effect.
23. NATURE OF RELATIONSHIP OF PARTIES. Nothing contained herein shall be
deemed to create a relationship between Customer and WTG of employer and
employee, master and servant, principal and agent, contractor and subcontractor,
co-venturers, partners or any similar relationship within the meaning of any law
or otherwise. This Agreement shall not constitute either party as the agent for
or principal of the other.
24. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants
that it has taken all requisite corporate or partnership action to approve
execution, delivery and performance of this Agreement and that this Agreement
constitutes a legal, valid and binding obligation enforceable against it in
accordance with its terms.
15 of 16
Contract K-177
25. GENERAL PROVISIONS. (A) The Space provided hereunder is subject to
the condition that it will not be used for any unlawful purpose; (B) This
Agreement shall be construed under the laws of the State of Oklahoma without
regard to choice of law principles; (C) The terms and provisions contained in
this Agreement that by their sense and context are intended to survive the
performance thereof by the parties hereto shall survive the completion of
performance and termination of this Agreement, including, without limitation,
the making of any and all payments due hereunder; (D) Descriptive headings in
this Agreement are for convenience only and shall not affect the construction of
this Agreement; (E) Words having well-known technical or trade meanings shall be
so construed, and all listings of items shall not be taken to be exclusive, but
shall include other items, whether similar or dissimilar to those listed, as the
context reasonably requires; (F) No rule of construction requiring
interpretation against the draftsman hereof shall apply in the
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
XXXXXXXX TELECOMMUNICATIONS
SERVICES, INC.
with and on behalf of
WTG Affiliates Southern Interexchange Facilities, Inc.
---------------------------------------
(Customer)
BY: /s/ X.X.Xxxx BY: /s/ Xxxxxx X.Xxxxxxxxx
------------------------- ------------------------------------
(Signature) (Signature)
X.X. Xxxx Xxxxxx X. Xxxxxxxxx
------------------------- ------------------------------------
(Print Name) (Print Name)
Vice President Vice President
------------------------- ------------------------------------
(Title) (Title)
16 of 16
Contract No. K-177
---------
Schedule No. K-177A
---------
Amendment No. N/A
--------
Page 1 of 7
Collocate Schedule
------------------
This Collocate Schedule is made this 7th day of January, 1991, and
----- ------- --
subject to all definitions, terms and conditions of the Collocate Agreement
dated January 7, 1991, between Xxxxxxxx Telecommunications Services, Inc.
--------- --
("WTG"), a wholly owned subsidiary of Xxxxxxxx Telecommunications Group, Inc.
with and on behalf of WTG Affiliates and Southern Interexchange Facilities, Inc.
---------------------------------------
("Customer").
1. Premises:
---------
Xxxxxxxx Telecommunications Group
--------------------------------------------------
000 Xxxxx Xxxxx Xxxxxx
--------------------------------------------------
Xxxxxxxxxx, XX 00000
--------------------------------------------------
--------------------------------------------------
2. WTG Affiliate: WTG - East , Inc.
-------------- --------------------------------------------------
3. Initial Term: Equal to the period between the Commencement Date
------------- and the Termination Date
--------------------------------------------------
Commencement Date: February 1, 1991
------------------ --------------------------------------------------
Termination Date: January 31, 1992
----------------- --------------------------------------------------
4. Renewal Period(s): None
------------------ --------------------------------------------------
5. Occupancy and Services Charges:
-------------------------------
Occupancy Fee: $ 26.00 per month ( 20 square feet = 1 Rack)
-------- --------
Service Fee: $ 124.00 per month.
--------
Build-out Fee: $ 2,500.00 payable upon execution of Collocate
------------
Schedule.
Contract No. K-177
----------
Schedule No. K-177A
----------
Amendment No. N/A
---------
Page 2 of 7
6. Customer 24 Hour Maintenance Number: (000) 000-0000
------------------------------------ --- --------
7. Landlord Information: None
---------------------
8. Special Terms and Conditions:
----------------------------
A) The Service Fee shall be subject to an annual increase which shall be
the current Service Fee prices, generally available to any WTG customer.
9. WTG will provide the services and improvements at the Space described
herein as set forth in Exhibit I which is identified with this Collocate
Schedule and subscribed to by Customer and WTG.
10. Customer agrees to abide by the specifications set forth in Exhibit II
which is identified herewith and subscribed to by the Customer and WTG.
Contract No. K-177
--------
Schedule No. K-177A
--------
Amendment No. N/A
--------
Page 3 of 7
11. Delineation of Space: Montgomery, AL
---------------------
[GRAPHIC OF BUILDING BLUEPRINT APPEARS HERE]
XXXXXXXX TELECOMMUNICATIONS
SERVICES, INC.
with and on behalf of
WTG AFFILIATES Southern Interexchange
--------------------------------
(Customer)
BY: /s/ X. X. Xxxx BY: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- --------------------------------
(Signature) (Signature)
X. X. Xxxx Xxxxxx X. Xxxxxxxxx
-------------------------------- --------------------------------
(Print Name) (Print Name)
Vice President Vice President
-------------------------------- --------------------------------
(Title) (Title)
Contract No. K-177
--------
Schedule No. K-177A
--------
Amendment No. N/A
-------
Dated January 7, 1991
----------------
Page 4 of 7
EXHIBIT I
SERVICE EXHIBIT TO COLLOCATE SCHEDULE
1. Backup DC electrical power, including batteries and shared use of an
emergency generator to the extent such generator exists and is maintained
to support the Premises.
2. Halon or Sprinkler System.
3. DC power adequate for Customer's consumption for 20 AMPs.
--
4. Single or A & B DC power cable feed for a maximum requirement of AMPs. A &
B DC power feed must be specifically requested.
5. AC power and outlets for test equipment.
6. Lighting.
7. Ground xxxx and cable interconnect.
8. Cable ladder racks to support the interconnect and power cables to
Customer's Space.
9. Interconnection between WTG and Customer on WTG end only.
10. Buildout of walls, floors and ceiling according to building standard
specifications.
11. Heating, ventilating and air conditioning adequate to handle up to
10,000 xxxxx of power dissipation per location. An additional pro rata
charge for usage in excess of 10,000 xxxxx dissipation per location will be
assessed.
12. General and administrative services directly relating to the
provision of the above listed Services.
Contract No. K-177
--------
Schedule No. K-177A
--------
Amendment No. N/A
-------
Dated January 7, 1991
---------------
Page 5 of 7
EXHIBIT II
STANDARD SPECIFICATIONS EXHIBIT
TO COLLOCATE SCHEDULE
The following are standard specifications for collocate space provided at
various locations by a subsidiary of Xxxxxxxx Telecommunications Group, Inc.
(WTG). The Customer is hereby notified of, and shall comply with, these
specifications as conditions of collocation.
I. AC Power
A. A 20-amp four-plex AC receptacle will be provided in each caged
collocate area and for every third relay rack per relay-rack lineup. The
AC protective grounds serving all 120V AC electrical convenience
receptacles and direct-wired peripheral equipment located in the
isolated ground zone (IGZ) should be connected directly to the ground
window busbar (GWB). These conductors shall be sized in accordance with
normal "green wire" criteria and, for identification purposes, both ends
of each appearance shall be marked with a single-width, two-layer wrap
of yellow plastic tape. In addition, tags shall be used at the GWB
connection and at each terminating point to indicate the green wire is a
"GWB isolated ground wire." All such circuits must terminate in Isolated
#5262-IG orange receptacles. These receptacles have green wire ground
lugs that are electrically isolated from their metal mounting tabs.
NOTE: The master ground bar (MGB) is the common ground point between the
ground grid and all other grounding connections. With this procedure,
the intent of the National Electric Code (NEC) common grounding via the
MGB-GWB distribution panel connection is observed. If strict adherence
to the NEC prevents green wire connection directly to the GWB, the green
wire serving these receptacles may be routed through (but not grounded
to) the nearest panel board or breaker box, then brought to the GWB
ground.
Contract No. K-177
--------
Schedule No. K-177A
--------
Amendment No. N/A
-------
Dated January 7, 1991
---------------
Page 6 of 7
II. DC Power
A. Nominal 50 + 6V DC battery and charger supply with a minimum of four-
-
hour reserve will be provided by the Service Provider.
B. All DC power conductors shall be sized for a maximum of l.25V DC drop
from the WTG power distribution panel to the customer equipment. If an
intermediate distribution bay is provided, this is divided .75V from
WTG to intermediate and .5V from intermediate to customer.
C. A low-voltage (46V) and high-voltage (57V) battery alarm will be
monitored by the Service Provider.
D. Redundant chargers of adequate size will be provided by WTG so that in
the event of a charger-failure the full load will be supplied to
customers' equipment. A charger-failure alarm will be monitored by the
Service Provider.
III. Grounding
A. A separate, insulated GWB will be provided by WTG in the IGZ.
B. The grounding conductor supplied by WTG between the MGB and the GWB
shall be equal in size, or larger than, the largest conductor.
C. The resistance of the conductor between the MGB and GWB shall be less
than, or equal to, 0.0005 ohms and comply with Item III.B.
D. All relay racks will be isolated from ground using insulators, pads and
bushings, if required by WTG.
E. All cable racks will be insulated from the walls, ceiling, fencing,
and building structure. In addition, cable racks entering the IGZ will
be electrically isolated from those within the IGZ using insulators and
bushings when required by WTG.
Contract No. K-177
-------
Schedule No. K-177A
-------
Amendment No. N/A
------
Dated January 7, 1991
---------------
Page 7 of 7
IV. Environmental
A. The ambient temperature will be maintained by WTG between 60-80 degrees
F with an objective of 20-65% humidity. The equipment should be
designed to operate satisfactorily between 40-100 degrees F with 5-95%
(non-condensing) humidity. Low (4O degrees F) and high (l00 degrees F)
temperature alarms will be monitored by the Service Provider.
B. All concrete floors will be covered with vinyl tile and maintained with
anti-static wax.
V. Interconnection
A. The Customer will terminate its end of the interconnect.
B. All cables required to interconnect to the Customer will be provided by
WTG.
[LOGO OF WILTEL APPEARS HERE]
DIGITAL SERVICE DESCRIPTION
FORM 03-CUB-1010 REV 2/92 (CARRIER SERVICE ONLY) WilTel SO #_____________
WilTel, Inc. agrees to provide and Customer agrees to accept the Service
described below for the Service Commitment Period and change below subject to
the terms and conditions contained in WilTel Digital Service Agreement with
Customer DSA # 517-91071. Customer agrees that terms that do not conform with
the terms of said Agreement or WilTel published terms, including but not limited
to City and Circuit availability, Requested Service Dates and Charges for the
Service shall not be binding on WilTel and are objected to until accepted by an
Authorized Headquarters Representative of WilTel.
------------------------------------------------------------------------------------------------------------------------------------
Billing Name XXXXXXXX XXX # XXX-00000
------------------------------------------------------------------ --------------------------------------------
Billing Address Customer # 51371
--------------------------------------------------------------- ---------------------------------------
Service Commitment Period
------------------------------------------------------------------------------- -------------------------
Billing Contact Phone ( ) 12 Months
------------------------------- ------------------- --------------------------------------------------
Order Contact Xxx Xxxxxxxxx Phone (000) 000-0000 Requested Service Date 8/1/94
--------------------------------- ------------------- ---------------------------
------------------------------------------------------------------------------------------------------------------------------------
ORDER TYPE
------------------------------------------------------------------------------------------------------------------------------------
New [_] Change [_] Disconnect [_] Cancel [_] Supplement [_] #
------------------------------------------------
Remarks/Reason
-------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
EXPEDITE REQUEST
------------------------------------------------------------------------------------------------------------------------------------
The above listed Requested Service Date represents an expedited interval. This is customer authorization for a WilTel internal
expedite and/or Local Exchange Carrier expedite. Signed in advance by: ___________________________________________________________
Customer Signature/Title/Date
------------------------------------------------------------------------------------------------------------------------------------
WilTel CHARGES
------------------------------------------------------------------------------------------------------------------------------------
Interexchange Service LOCATION A LOCATION Z
11DC-3 CKT Qty/Type BRHM, AL JCVL, FL
------------------------------- --------------------------------- --------------------------------------------------
$ 15,666 Single Circuit IXC Monthly Charge $ 15,666 Total Monthly IXC
------------------------------ -----------
$ 0 Single Circuit IXC Installation $ 0 Total IXC Installation
------------------------------ -------------
373 Miles V&H Mileage [_] Route Mileage [_] $ .0625 Voice Grade Equivalent
------------------------- -----------
Monthly Recurring Ancillary Charges/Description
$______________________________ __________________________________________________________________________________________________
$______________________________ __________________________________________________________________________________________________
$______________________________ __________________________________________________________________________________________________
Non-Recurring Ancillary Charges/Description
$______________________________ __________________________________________________________________________________________________
$______________________________ __________________________________________________________________________________________________
$______________________________ __________________________________________________________________________________________________
------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED LOCAL ACCESS CHARGES
------------------------------------------------------------------------------------------------------------------------------------
LOCATION A____________________________________________________ LOCATION Z________________________________________________________
Local Access Billed By WilTel [_] LEC [_] Local Access Billed By WilTel [_] LEC [_]
Monthly Recurring/Description Monthly Recurring/Description
$_______________________ ___________________________________ $_______________________ _______________________________________
$_______________________ ___________________________________ $_______________________ _______________________________________
$_______________________ ___________________________________ $_______________________ _______________________________________
Non-Recurring/Description Non-Recurring/Description
$_______________________ ___________________________________ $_______________________ _______________________________________
$_______________________ ___________________________________ $_______________________ _______________________________________
$_______________________ ___________________________________ $_______________________ _______________________________________
------------------------------------------------------------------------------------------------------------------------------------
Remarks Renew the existing DS-3 CKT (NYI-21485) for a 12 month term effective 8/1/94. IXC MRC will be $15,666.
---------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
IN WITNESS WHEREOF the parties have executed this Service Description on the __________ day of _________________________, 19______.
----------------------------------------------------------------- ---------------------------------------------------------------
Sales Representative Signature Customer Name
/s/ Xxx Xxxxxxxxx
----------------------------------------------------------------- ---------------------------------------------------------------
Sales Management Authorized Representative Signature
---------------------------------------------------------------
Order Contact Signature
Headquarters Acceptance:
-----------------------------------------------------------------
Authorized [_] Customer Acknowledges 3rd Party Testing.
----------------------------------------------------------------- Signature
Title ------------------------------------------------------
CUSTOMER NOTIFICATION AND CONSENT TO
CHANGE OF CONTROL OF COLLOCATE AGREEMENT
LICENSOR: Xxxxxxxx Telecommunications Services, Inc. ("WilTel")
LICENSEE / CUSTOMER: Southern Interexchange Facilities, Inc. ("SIF") /
DeltaCom, Inc. ("DeltaCom")
COLLOCATE
AGREEMENT: Contract K-177
DATED: January 7, 1991
PREMISES: Xxxxxxxx Telecommunications Group
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Schedule No. K-177A.
NEW OWNERS: ITC Holding Company, Inc., a Delaware corporation ("ITC")
1. On December 31, 1993, SIF merged into DeltaCom. The management, owners, and
day to day operations for SIF remained the same under the name DeltaCom, Inc.
2. On October 27, 1995, the stockholders of DeltaCom entered into an agreement
with ITC that will result in the sale of 100% of DeltaCom, Inc.'s stock. ITC
does not have an existing long distance telephone operation and intends that
DeltaCom shall continue to operate as an on-going business upon the
consummation of the contemplated transaction which is expected to close
January 6 or 7, 1996.
3. Therefore, as referenced in the paragraph 19, entitled "ASSIGNMENT -- CHANGE
IN CONTROL" on page 14 of the aforementioned agreement, DeltaCom requests
approval of WilTel of DeltaCom's intent to change control and WilTel's
consent to continue DeltaCom's rights and obligations under this Agreement
under the new ownership of ITC.
Xxxxxxxx Telecommunications Service, Inc. DeltaCom, Inc.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ Xxx Xxxxxx
---------------------------- -------------------------
Its: VP - Data:Broadband Its: EXEC. V.P.
--------------------------- ------------------------
Date: 1-10-96 Date: DEC. 13, 1995
-------------------------- -----------------------
