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EXHIBIT 10.51
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
INTERSTATE FIBERNET
COLLOCATION AGREEMENT
This agreement is made and entered into this 1st day of July, 1997 by and
between Interstate FiberNet and Cybernet Holding, Inc. hereinafter referred to
as ("Customer").
I. Term. Customer shall have use of the access to space at the Interstate
FiberNet Point of Presence located at [_________________________________]
(hereinafter referred to as the "POP space") for 36 months, beginning on the 1st
day of July, 1997 and ending on the 1st day of July, 1998. At the conclusion of
the minimum term, this Agreement will continue on a month-to-month basis and
will continue in such manner until either party is notified, in writing, sixty
(60) days prior to the date Customer or Interstate FiberNet desires to terminate
this Agreement.
II. Conditions of Presence. Customer may use the POP space, set forth in
Exhibit C attached hereto, for installing, maintaining and operating certain
equipment (hereinafter referred to as "Equipment"), set forth in Exhibit B
attached hereto, to interconnect with telecommunication services provided by
Interstate FiberNet to Customer or Customer's customer(s). All decisions
concerning location of the Equipment and the installation, connectivity and
maintenance of the Equipment will be at the discretion of Interstate FiberNet.
III. Rental. This Agreement is made for and in consideration of the
covenants herein contained and a monthly rental which Customer shall pay to
Interstate FiberNet of [____] per month. Customer will receive an invoice from
Interstate FiberNet for the monthly rental, and payment thereunder shall be due
within 30 days after the receipt of the invoice. Customer shall pay a late fee
on any delinquent amounts equal to the lesser of one and one-half ( 1 1/2)
percent of the unpaid balance per month or the maximum lawful rate under state
law.
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IV. Installation Charge. Customer will pay to Interstate FiberNet an
installation charge of [_____] for all equipment initially installed or located
in the POP space. There will be an additional charge for any equipment
subsequently installed or located in the POP space. This charge will be
computed in accordance with Exhibit A.
V. Obligations of Customer.
1. The Equipment and any subsequent modifications thereto shall
comply with the technical interface specification as outlined in the BellCore
Publication TR-INS-000342 (High-Capacity Digital Special Access Service) and any
other reasonable requirements that Interstate FiberNet may from time to time
establish.
2. Customer shall install or arrange for the installation,
maintenance and connectivity of the Equipment. Interstate FiberNet will provide
a representative to observe and inspect the installation of the Equipment.
3. Customer shall be responsible for the proper maintenance and
repair of the Equipment, including any maintenance or repair Interstate FiberNet
determines is necessary to eliminate any potentially unsafe or undesirable
condition. If Customer fails to rectify the condition to Interstate FiberNet's
satisfaction within ten (10) days after notification, Interstate FiberNet may
undertake or arrange for the required maintenance and/or repair. Customer shall
then reimburse Interstate for all costs relating to such maintenance or repair,
including the costs of all labor and materials. Such maintenance and repair
costs shall be in accordance with the rates set forth in Exhibit A attached to
this Agreement, plus the actual cost incurred by Interstate FiberNet for third
party vendors for such maintenance and repairs. There shall be an additional
administrative fee over and above the costs set forth herein of
[___________________] of the total xxxx.
4. Customer must obtain and maintain liability and contractual
liability insurance coverage in an amount adequate to protect both Interstate
FiberNet and the Customer against loss or damage. Such coverage must be at least
in the amount of $1,000,000 per occurrence. Evidence of such insurance must be
provided to Interstate FiberNet.
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5. Upon sixty (60) days prior written notice or, in the event of an
emergency, such time as may be reasonable, Interstate FiberNet 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 relocation of the
Equipment shall be borne by Customer; provided, however, Customer shall not be
required to pay for the cost of improving the POP space to which the Equipment
may be relocated.
VI. Obligations of Interstate FiberNet
1. Interstate FiberNet agrees to provide Customer with reasonable
access to POP space during regular business days between the hours of 8:00 AM
and 5:00 PM to the extent that such access is related to the operation,
maintenance or repair of the Equipment. Interstate FiberNet shall make
reasonable efforts to grant Customer access to the POP space and the Equipment
at other times upon twenty-four (24) hour notice to designated Interstate
FiberNet personnel. In case of emergency, Interstate FiberNet personnel. In case
of emergency, Interstate FiberNet shall make reasonable efforts to provide
Customer access to the POP space and Equipment upon two (2) hours notice to
Interstate FiberNet personnel. During such access, Interstate FiberNet personnel
must be present at all times. Customer shall reimburse Interstate FiberNet for
all costs relating to such access, including labor associated with non-business
day access, according to the rates set forth in Exhibit A. All of Customer's
rights of access under this Section shall be terminated upon termination of this
Agreement.
2. Interstate FiberNet will provide Customer with power, set forth
in Exhibit D attached hereto, a required for Equipment. Should Customer's power
usage in any month cause Interstate FiberNet's power usage to exceed by ten
percent (10%) the average monthly usage for the following year, then Customer
must reimburse Interstate FiberNet the actual cost of the extra power usage.
VII. Interstate FiberNet Liability. IN THE EVENT OTHER THAN AS A
RESULT OF ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, SHALL INTERSTATE
FIBERNET LIABILITY ARISING OUT OF THE FULFILLMENT OF THIS AGREEMENT OR ITS
PROVISION OF SERVICES HEREUNDER EXCEED THE AMOUNT OF $10.00. IN NO EVENT
XXXXX
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XXXXXXXXXX XXXXXXXX XX LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY IN
ANY RESPECT, INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL, PUNITIVE, OR FOR ANY OTHER DAMAGES, OR FOR ANY OTHER LOST PROFITS OF ANY
KIND OR NATURE WHATSOEVER, ARISING OUT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT. INTERSTATE FIBERNET MAKES NO COMPLETENESS OF FITNESS FOR ANY PURPOSE
OF THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT OR AS TO ANY OTHER MATTER, ALL
OF WHICH WARRANTIES BY INTERSTATE FIBERNET ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
VIII. Indemnification. Customer shall indemnify, defend and hold
Interstate FiberNet harmless against any claims, actions or cause of action
arising out of any act or omission by Interstate FiberNet or Customer and any
of their directors, officers, agents, servants, subsidiaries, affiliates,
employees, attorneys and/or customers related to the fulfillment of this
Agreement or provision of services thereunder, including payment of
Interstate FiberNet's reasonable attorney's fees and costs.
IX. Default. The Customer shall be considered in default of this
Agreement if:
(1) Customer shall fail to cause any rental installment to be
received by Interstate FiberNet before the (10) days after the due date;
(2) If Customer violates or fails to perform or fulfill any covenant
or provision of this Agreement, or fails to perform or cause any repair or
modification to the Equipment required by Interstate FiberNet within thirty (30)
days following notification; or
(3) If Customer undergoes bankruptcy; dissolution; financial failure
or insolvency; receivership; sale or merger with another person, corporation or
other legal entity unless approved in advance by Interstate FiberNet.
(4) In the event of Customer's default of this Agreement, the entire
rent due Interstate FiberNet for the unexpired term of this Agreement
shall become due and demanded, together with all reasonable costs, attorney's
fees, expenses, and damages which may have been suffered or incurred by
Interstate FiberNet. Interstate FiberNet may also terminate the Agreement and
evict Customer from the premises should Customer fail to cure the default within
ten (10) days after receipt of notice sent to
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Interstate FiberNet setting forth the method of default. Interstate FiberNet
reserves the right to proceed one or more times against Customer for past due
installments of rent and such installments as shall become due before Customer
is evicted, together with all reasonable costs, fees, attorney's fees, expenses
and damages incurred or suffered by Interstate FiberNet. Customer expressly
waives all legal notice to vacate the premises after expiration of cure period.
X. Confidentiality. During the term of this Agreement, Interstate
FiberNet and Customer shall use their best efforts to keep the terms and
conditions, including prices, contained in this Agreement, from competitors,
the public or others who may gain benefit from such knowledge, unless
required by law to divulge such information to regulatory authorities, unless
authorized in writing to reveal such information, or unless required to do so
in connection with enforcing that party's rights hereunder.
XI. Successors and Assigns. The rights and obligations of Customer and
Interstate FiberNet under this Agreement shall ensure to the benefit of and
shall be binding upon the successors and assigns of Customer and Interstate
FiberNet. Neither party shall delegate its obligations and responsibilities or
assign its benefits hereunder without written consent of the other.
XII. Governing Law. The validity, construction, interpretation and
enforceability of the Agreement shall be governed by the laws of the State of
Georgia and all legal proceedings involving this Agreement or otherwise
relating to the transactions described herein shall be brought in Xxxxx
County, Georgia.
XIII. Entire Agreement. This Agreement contains the entire agreement
between Customer and Interstate FiberNet and there are no representations,
inducements or other provisions other than those expressed herein. No
modifications, waiver or discharge of any provision or breach of the Agreement
shall be effective unless it is executed in writing by Customer and Interstate
FiberNet.
XIV. General.
1. Any actions in the fulfillment of this Agreement or provision of
services hereunder will not create a partnership or joint venture between the
Customer and Interstate FiberNet.
2. In the event the POP space is owned by a third party
and leased to Interstate FiberNet, no provision of this Agreement shall
operate to violate the agreement between Interstate
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FiberNet and the said third party, and Customer shall be required to observe any
and all requirements of the agreement between Interstate FiberNet and the third
party, as if those requirements were set forth herein.
3. No subsequent agreement between Interstate FiberNet and Customer
concerning the services contemplated under this Agreement shall be effective or
binding unless it is made in writing by authorized representative of the parties
hereto, and no representation, promise, inducement or statement of intention has
been made by either party which is not embodied herein.
XV. Notice. Notice under this Agreement shall be in writing and
delivered to the persons whose names and business addresses appear below, and
or otherwise provided to by proper notice hereunder, and the effective day of
any notice under this Agreement shall be the date of delivery or refusal of
such notice and not the date of mailing.
If to Interstate FiberNet: Interstate FiberNet
000 Xxxx 0xx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
If to Customer: CyberNet Holding Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
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XVI. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
In Witness Whereof, the parties have executed this Contract as of the date set
forth at the beginning of the Agreement.
ACCEPTED BY: ACCEPTED BY:
(Customer)
CyberNet Holding Inc. Interstate FiberNet
0000 X.X. Xxxxxxx Xxxxx 000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: CEO & President Title: Sr. Vice President
Date: July 8, 1997 Date: July 10, 1997
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EXHIBIT A
INTERSTATE FIBERNET LABOR RATES
1. STANDARD RATE [______] PER HOUR
8:00 AM to 5:00 PM
Monday through Friday
2. OVERTIME RATES [______] PER HOUR
Prior to 8:00 AM and after 5:00 PM
Monday through Friday
3. PREMIUM TIME [_______] PER HOUR
All other times
[_______] MINIMUM APPLIES TO ALL RATES
24 Hour Interstate FiberNet contact: 000-000-0000
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***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT B
EQUIPMENT
Quantity Type
1. [____________]
2.
3.
4.
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EXHIBIT C
SPACE FOOTPRINT
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EXHIBIT D
POWER REQUIREMENTS
5 AMPS.
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