EXHIBIT 10.16
Special Customer Arrangement
This MCI Special Customer Arrangement ("Agreement") is made between MCI
Telecommunications Corporations ("MCI") and Sattell Communications LLC
("Customer"), and shall be effective thirty (30) days from the first day of the
next billing cycle following Customer's signature date ("Effective Date").
The rates, discounts and certain other provisions applicable to MCI tariffed
services are set forth in the Contract Tariff.
1. Authority: Customer represents and warrants that Customer has the full
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right, power and authority to enter into this Agreement, to perform Customer's
obligations hereunder and that the execution, delivery and performance by
Customer of this Agreement will not conflict with or constitute a default under
any contract, agreement or other obligation to which Customer is subject.
2. Confidential Information: Each party shall not disclose to any third party
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during the Term of this Agreement, or during the three (3) year period after
expiration or termination of this Agreement, any of the terms and conditions of
this Agreement unless such disclosure is lawfully required by any federal
governmental agency or is otherwise required to be disclosed by law or is
necessary in any legal proceeding establishing rights and obligations under this
Agreement. Each party reserves the right to terminate this Agreement by giving
written notice to the other party in the event of any unpermitted third party
disclosure hereunder.
3. Government Law: This Agreement and all causes of action arising out of the
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Agreement, shall be subject to the Communications Act of 1934, as amended (the
"Act"), or, if any part of this Agreement is not covered by the Act, by the
domestic law of the State of Georgia without regard to its choice of law
principles. In the event of a conflict between this Agreement and any subsequent
translations, this English language version shall prevail.
4. Notices: All notices, requests, or other communications (excluding
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invoices) hereunder shall be in writing and hand delivered or addressed and sent
by certified or registered mail, postage prepaid and return receipt requested to
the parties at the address below or such other addresses as may be specified by
written notice. All notices shall be effective when received.
5. Severability: All provisions of this Agreement are severable, and the
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unenforceability or invalidity of any of the provisions shall not affect the
validity or enforceability of the remaining provisions. The remaining provisions
will be construed in such a manner as to carry out the full intention of the
parties. Section titles or references used in this Agreement shall not have
substantive meaning or context and are not a part of this Agreement.
6. Entire Agreement: This Agreement, including the Contract Tariff,
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constitutes the entire agreement between the parties with respect to MCI
Tariffed services and the applicable MCI Tariffs and Tariff Option, and
supersedes all other representations, understandings or agreements which are not
fully expressed herein, whether oral or written. No amendment to this Agreement
shall be valid unless in writing and signed by both parties.
7. Signature Authorization: The parties have duly executed and agreed to be
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bound by this Agreement as evidenced by the signatures of their authorized
representatives above. Each party represents and warrants to the other that the
signatory identified beneath its name above has full authority to execute this
Agreement on its behalf.
8. Service Provisioning and Receipt: MCI will provide to Customer interstate
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and international telecommunications service(s) provided pursuant to the MCI
Tariff FCC No.1, MCI Tariff FCC No. 5, WUI Xxxxxx XXX Xx.00, and any other
interstate and international tariff of MCI and its affiliates, each as
supplemented by this Agreement, and intrastate telecommunications services
provided pursuant to MCI's state tariffs governing such services ("MCI
Tariffs"). This Agreement incorporates by reference the terms of each such
tariff. MCI may modify its tariffs from time to time in accordance with law and
thereby affect the service(s) furnished to Customer. This is s Specialized
Customer Arrangement as defined in Section B-17.03 of the Tariff.
MCI will, if required, file a tariff option ("TO") consistent with the
terms of Attachment A, which is fully incorporated herein. In the event a TO
required to implement the terms of this Agreement is suspended or rejected, or
is inconsistent with this Agreement, then Customer may, as its sole remedy,
elect to terminate this Agreement without liability on thirty (30) days' written
notice given not later than thirty (30) days after the event giving rise to the
termination right, unless MCI substantially cures the problem within the notice
period. MCI will use best reasonable commercial efforts to provide Customer with
notice that the TO required to implement this Agreement has been suspended,
rejected, or found to be inconsistent with this Agreement.
The rates, discounts, terms and conditions of this Agreement, except as set
forth in Attachment A, are those set forth in applicable MCI Tariffs. In the
event of inconsistency between the TO and MCI Tariffs, the TO shall govern. In
the event of inconsistency between this Agreement and applicable MCI Tariffs or
the TO, the TO or applicable MCI Tariffs shall govern. If, where and to the
extend that MCI is no longer required to file Tariffs, MCI will continue to
provide to the Customer MCI services pursuant to the terms and conditions of
this Agreement.
Sattell Communications LLC MCI Telecommunications Corporation
0000 Xxxxxxx Xxxxxx Three Ravinia Drive
Chatsworth, CA 91311 Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx /s/ Xxx Xxxxxxxxx
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Authorized Customer Signature Authorized Signature
Xxxxxx X. Xxxxxx Xxx Xxxxxxxxx, Director
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Print Name and Title Print Name and Title
May 16, 1996 May 17, 1996
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Date Date
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ATTACHMENT A TO SCA
Contract Tariff
This Attachment A to the Agreement contains the rates, terms and conditions of
the MCI services provided under Schedule I.
1. Term of Service: The term of service is twenty-four (24) months (beginning
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thirty (30) days from the first day of the first billing cycle following the
date of the Customer's execution of this Contract Tariff). Upon completion of
the term of service, the service arrangement under this Agreement shall continue
on a month-to-month basis, and Customer shall receive the rates and discounts
for MCI services as set forth in this Agreement provided, Customer's monthly
usage equals or exceeds one-twelfth of the Annual Minimum.
2. Description of Service: Service may consist of any one or more standard
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tariffed MCI services.
3. Minimum Volume Requirements: For purposes of this Contract Tariff, Base
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Rates are defined as the rates and discounts for which the Customer qualifies
under this Contract Tariff.
3.1 Annual Minimum: During each consecutive twelve (12) month period of
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the term of service ("Annual Period"), the Customer's use of MCI services under
this Contract Tariff must equal or exceed [*], calculated at Base Rates
("Annual Minimum"). During the thirteenth month of the term of Service, Customer
may upon sixty (60) days prior written notice to MCI, decrease the Annual
Minimum to [*]. The rates and discounts for MCI services will be adjusted as
of the effective date of the notice. Customer may only decrease the Annual
Minimum one time during the term of the service.
4. Rates and Charges: The Customer will be charged the following rates for
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domestic interstate service usage. (For all domestic intrastate and
international service charge usage, the Customer shall pay standard tariffed
rates set forth in the applicable MCI tariffs.)
4.1 Postalized Rates: The Customer will be charged the following
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postalized rates for the Customer's Interstate usage. [*]
4.1.1 MCI 800 Service:
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(1) In Lieu of any other rates and discounts, the Customer will be
charged the following per-minute rates for domestic interstate MCI 800
DAL usage, depending on termination type and the time of day that the
call is made:
Termination Type Business Day Non-Business Day
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800 DAL [*] [*]
800 CBL [*] [*]
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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(2) If the Customer decreases the Annual Minimum to [*] pursuant to
paragraph 1 above, in lieu of any other rates and discounts, the
Customer shall be charged the following per-minute rates for domestic
interstate MCI 800 DAL usage as of the effective date of the decrease,
depending on the termination type and the time of day that the call is
made:
Termination Type Business Day Non-Business Day
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800 DAL [*] [*]
800 CBL [*] [*]
5. Volume Discounts: In each Annual Period of the term of service in which the
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Customer satisfies the Annual Minimum, the Customer will be charges the rates
and receive the discounts set forth under the Contract Tariff.
5.1 MCI HyperStream Frame Relay Service. Pursuant to the Customer's
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revenue commitments for domestic MCI HyperStream Frame Relay Service, Customer
shall receive with the standard HPP discounts associated with the Monthly
minimum schedule applicable to the two (2) year term of service as set forth in
the Tariff.
5.2 Charges Not Eligible for Discount: These rates do not apply to the
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following charges for MCI services other than those described in Section 2; non-
tariffed products; access or egress (or related) charges imposed by third
parties; Directory Assistance charges; standard tariffed non-recurring charges;
taxes or governmental surcharges.
6. Classifications, Practices and Regulations:
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6.1 Underutilization: If in any Annual Period, the Customer's use of
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service under this Contract Tariff, calculated at Base Rates, fails to satisfy
the Annual Minimum, the Customer will be billed and required to pay: (1) all
outstanding amounts billed to the Customer during that Annual Period; and (2) a
underutilization charge (which Customer agrees is reasonable) equal [*].
6.2 New Technology Change: Customer will not be liable for
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underutilization charges where such underutilization charges arise solely as a
result of a provided that in any case Customer shall use its best reasonable
efforts to: (1) direct to MCI new traffic or traffic not currently carried by
MCI in order to meet the Annual Minimum; and (2) certain MCI as the provider of
the service required pursuant to the [*]. In the event Customer's Usage Charges
fall below [*] of the Annual Minimum during the Service Team as the result of a
Customer and MCI shall use good faith efforts to renegotiate the terms and
conditions of the Agreement, including but not limited to all rates and
discounts; provided, however, that if a new agreement is not reached within
sixty (60) days of MCI's notice to Customer
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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that Customer's Usage Charges have fallen below [*] of the Annual Minimum
during the Service Term, MCI may terminate this agreement without liability to
customer, upon ninety (90) days written notice to customer.
6.3 Business Downturn: Customer will not be liable for underutilization
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charges where such underutilization charges are solely due to [*]. In the event
the Customer's Usage Charges fall below [*] of the Annual Minimum during the
Service Term as a result of such business downturn, MCI and Customer will
cooperate in efforts to develop a mutually agreeable alternative proposal that
will address the concerns of both parties and comply with all applicable legal
and regulatory requirements and restrictions, provided, however, that if a new
agreement is not reached within thirty (30) days of MCI's notice to Customer
that Customer's Usage Charges have fallen below [*] of the Annual Minimum, MCI
may terminate this Agreement without liability to Customer upon ninety (90) days
written notice. By way of example and not limitation, the alternative proposal
may include changes in discounts, credits, revenue and/or volume commitments,
the multi-year service period, and other provisions. Subject to all applicable
legal and regulatory requirements of the Federal Communications Commission and
the Communications Act of 1934, MCI will prepare and file any tariff revisions
necessary to implement such mutually agreeable alternative proposal. This
provision shall not apply to a change resulting from a decision by a Customer
to: (1) reduce its overall use of telecommunications service; (2) alter its
telecommunications network architecture; or (3) transfer portions of its
telecommunications traffic or projected growth to carriers other than MCI. This
provision shall also not apply during the first twelve (12) months of the
Service Term and, after the first twelve (12) months, may only be used one (1)
time by Customer during the Service Term. Customer must give MCI immediate
written notice of the conditions it believes will require the application of
this provision.
6.4 Force Majeure: Customer will not be liable for the underutilization
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charges where such underutilization are solely due to events beyond the
reasonable control of the customer. The Customer shall promptly notify MCI of
the force majeure circumstances, and the Service Team shall be extended by the
time of the deal caused by the force majeure event.
6.5 Termination:
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6.5.1. Except as set forth below, if the Customer terminates
service under the Contract Tariff after the Effective Date and before
the expiration of the term of service, it will constitute a breach of
this Contract Tariff and Customer will be billed and required to: [*]
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[*]Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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6.5.2. The Customer may terminate this Contract prior to the
expiration of the term of service without termination liability if
Customer enters into another Contract Tariff with term and volume
commitments equal to or greater than the commitments under this
Contract Tariff.
6.5.3. If the Customer becomes dissatisfied with the agreement or
the MCI services or with MCI's performance in connection with the
provision of MCI services under this Agreement within thirty (30) days
of the Effective Date, Customer terminates this Agreement pursuant to
this paragraph 6.5.3, MCI will release to Customer the surety provided
in paragraph 6.7 below, less the amount of Customer's unpaid Usage
Charges up to the time of such termination.
6.6 Service Interruptions
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6.6.1. Customer shall be entitled to Credit Allowances for Service
Interruptions in accordance with Section B.15 of the Tariff. A Service
Interruption begins when Customer reports the interruption to MCI and
releases the "Service Element" (as hereinafter defined) for testing
and repair ad ends when MCI retenders the Service Element to Customer.
For the purpose of determining the Annual Minimum, MCI will not reduce
Usage Charges by the amount of Credit Allowances applied. For purposes
of this Agreement, "Service Element" refers to the specific MCI
service affected at the specific geographic Customer location
affected.
6.6.2. Customer may discontinue receipt of service on a Service
Element at any time without liability except as otherwise expressly
provided for in the Tariff or this Agreement (an example of such a
provision might be where a private line installation charge is waived
but is to be assessed if the line is not in place for a minimum
period). If Customer discontinues receipt of service on a Service
Element having chronic Service Interruptions and does not take
substitute service form MCI, the Annual Minimum for purposes of
assessing underutilization charges shall be reduced by the average
monthly Usage Charges for the discontinued Service Element measured
over the last three (3) billing months prior to discontinuation. A
Service Element with chronic Service Interruptions is one on which
there have been three or more Service Interruptions, each consisting
of thirty (30) or more minutes, totaling twenty-four (24) or more
hours within three (3) consecutive calendar months.
6.7 Payment Arrangements: The Customer is required to pay MCI for its
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services within thirty (30) days of the Customer's receipt of MCI's invoice. In
consideration for services provided by MCI, Customer agrees to pay surety in the
amount of [*]. Surety shall be provided by June 3, 1996. Initial surety
requirements shall be based on estimated usage projections and MCI shall reserve
the right to require additional surety based on MCI traffic reporting and/or
actual usage. Should the customer fail to provide additional surety, MCI may
elect to disconnect all services immediately and without further notice. Surety
may be in the form of a cash deposit, an Irrevocable
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[*]Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Letter of Credit for a term of one year issued by am MCI approved financial
institution of a Cross Corporate Guarantee from Xxxxx Corporation. If Customer
elects to provide the Cross Corporate Guarantee, MCI will release the surety
upon receipt of such Guarantee. Cash deposits will be retained in an interest
bearing account held by MCI for a minimum of twelve (12) months. MCI shall
reserve the right to determine the customer's eligibility for refund of the
deposit based on customer's payment history and financial solvency and to retain
such deposit as is required to limit MCI's exposure.
6.8 Tariffed Rates: If MCI offers discounts applicable to a combination of
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its services (as opposed to discounts on an individual service), the Customer
who has subscribed to one of the combined services may elect to receive the
benefits of such discounts in lieu of its SCA discounts. If the Customer so
chooses, the new discounts become binding for the remainder of the terms of
service.
6.9 Conditions: In order for Customer to be eligible to receive the rates
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and discounts provided under this Agreement, Customer must satisfy the following
conditions on an annual basis:
6.9.1. Customer agrees that it will utilize MCI [*] of Customer's
domestic interstate dedicated 800 traffic during the Service Term (the
Exclusive Carrier Requirement").
6.9.2. MCI may request in writing and Customer will promptly
provide to MCI in writing, proof satisfactory to MCI that Customer is
satisfying the terms of the Exclusive Carrier Requirement for any
Annual Period ("Documentation"). MCI may review the Documentation
solely for the purpose of determining Customer's compliance with the
Exclusive Carrier Requirement.
6.9.3. The rates and discounts for MCI Services set forth in this
Agreement are conditioned upon Customer's satisfaction of the
Exclusive Carrier Requirement. If Customer fails to satisfy the
Exclusive Carrier Requirements during any Annual Period, then the
rates and discounts which shall be applied to Customer's usage of MCI
Services for such Annual Period shall be MCI standard Tariff rates
(less standard discounts) notwithstanding anything to the contrary in
the Agreement.
6.9.4. If the percentage of Customer's usage of MCI 800 Service
terminating via dedicated access facilities during any annual billing
period (excluding usage routed to switched lines for disaster recovery
purposes only) is less [*] of its total usage of MCI 800 Service (as
measured in minutes of use), Customer will pay an additional [*] per
minute of usage of MCI 800 Service terminating via dedicated access
facilities below such [*] threshold.
6.9.5. If the percentage of Customer's usage of interstate MCI 800
Service is less than eighty percent (80%) of its total usage of MCI
800 Service (as measured in minutes of use), Customer will pay an
additional [*] per minute of usage of interstate MCI 800 Service
under such eighty percent (80%) threshold.
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[*]Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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6.9.6. If the percentage of Customer's usage of MCI 800 Service
occurring during the Non-Business Day time period is less than sixty
percent (60%) of its total usage of MCI 800 Service, Customer will
pay an additional [*] per minute of usage of Non-Business Day MCI
800 Service under such sixty percent (60%) threshold.
6.10 Credits:
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6.10.1. The Customer will receive a credit, not to exceed [*],
for the one-time charges associated with the implementation of MCI
service under this Contract Tariff. Such credits will be issued from
time to time throughout the term of office as MCI service under this
Contract Tariff is installed. Any applicable Tariffed promotional
credits will be applied prior to this credit.
6.10.2. If the Customer decreases the Annual Minimum to [*]
pursuant to paragraph 1 above, for each consecutive three (3) month
period following the effective date of the decrease (each a Quarterly
Period"), Customer shall receive a credit of ten percent (10%)
calculated and applied to the [*] of the Customer's total domestic
interstate MCI 800 DAL Usage Charges for each Quarterly Period.
7. This agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. Neither this agreement,
nor any rights or obligations of Customer herein shall be transferable or
assignable by Customer without MCI's prior written consent, which consent shall
not be reasonable withheld.
8. Service under this option is available to Customers ordering service within
30 days of the Effective Date of this option.
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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FIRST AMENDMENT
TO MCI SPECIAL CUSTOMER ARRANGEMENT
This is the first amendment (the "Amendment") to the MCI Special Customer
Arrangement between MCI Telecommunications Corporation ("MCI") and Sattell
Communications LLC ("Customer"), which was signed by Customer on May 16, 1996
(the "Original Agreement"). This Amendment is effective as of thirty (30) days
after the first day of the next full month's billing cycle following the
Customer signature date ("Amendment Effective Date").
1. Survival of Original Agreement. Except as otherwise expressly modified or
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amended herein, all terms and conditions contained in the Original
Agreement shall remain in full force and effect and shall not be altered or
changed by this Amendment. The Original Agreement including this Amendment
shall be referred to as the "Agreement".
2. Effective Date. The opening paragraph of the Original Agreement shall be
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deleted in its entirety and restated as follows:
"This MCI Special Customer Arrangement ("Agreement") is made between
MCI Telecommunications Corporation ("MCI") and Sattell Communications
LLC ("Customer") and shall be effective as of June 7, 1996 ("SCA
Effective Date")."
3. Add New Paragraph 4.1.1(3). A new paragraph 4.1.1(3) is hereby added and
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incorporated into Attachment A of the Original Agreement as follows:
"This is a featureless product offering. Customer will incur
additional charges for any features ordered."
4. Add New Paragraph 4.1.2. A new paragraph 4.1.2 is hereby added and
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incorporated into Attachment A of the Original Agreement as follows:
"4.1.2 MCI Vision Service:
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(1) Except as set forth in paragraph 4.1.2 (2) below, for domestic MCI
Vision Service, Customer will pay the standard rates pursuant to the
Vision Power Rate Program as set forth in the Tariff and receive the
discounts associated with the MCI Vision Power Rate Value Insurance
Plan Two (2) year and [*] commitment levels as set forth in the
Tariff except that minimum term and volume levels shall not apply.
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[*]Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(2) In lieu of the discounts set forth in paragraph 4.1.2(1) above, for
interstate MCI Vision Service, Customer shall pay the following postalized
rates depending on the type of access and the time of day that the call
occurs.
Access Peak Off-Peak
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Dedicated [*] [*]
Switched [*] [*]
5. Paragraph 5.1 Modification. Paragraph 5.1 of Attachment A to the Original
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Agreement shall be deleted in its entirety and restated as follows:
"5.1 MCI HyperStream Frame Relay Service. Pursuant to the Customer's
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revenue commitments for domestic MCI HyperStream Frame Relay Service,
Customer shall receive with the standard HPP discount associated with
a [*] Monthly Minimum and two (2) year term of service as set forth
in the Tariff."
6. Paragraph 6.5.3 Modification. Paragraph 6.5.3 of Attachment A to the
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Original Agreement shall be deleted in its entirety and restated as
follows:
"6.5.3 If the Customer becomes dissatisfied with this Agreement within
forty (40) days of the Effective Date, Customer may terminate this
Agreement without termination liability. If Customer terminates this
Agreement pursuant to this paragraph 6.5.3, MCI will release to
Customer the surety provided in paragraph 6.7 below, less the amount
of Customer's unpaid Usage Charges up to the time of such
termination."
7. Paragraph 6.7 Modification. Paragraph 6.7 of Attachment A to the Original
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Agreement shall be deleted in its entirety and restated as follows:
"6.7 Payment Arrangements: The Customer is required to pay MCI for
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its services within thirty (30) days of the Customer's receipt of
MCI's invoice. In consideration for services provided by MCI, customer
agrees to pay surety in the amount of [*]. Surety shall be provided
by June 3, 1996. Initial surety requirements shall be based on
estimated usage projections and MCI shall reserve the right to require
additional surety based on MCI traffic reporting and/or actual usage.
Should the customer fail to provide additional surety in a form
acceptable to MCI within ten (10) business days after Customer's
notice of such requirement, MCI may elect to disconnect all services
immediately and without further notice. Surety may be in the form of a
cash deposit, an Irrevocable Letter of Credit for a term of one year
issued by an MCI approved financial institution, a
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[*]Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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performance bond with terms and conditions and from an issuer
acceptable to MCI or a cross corporate guarantee from Xxxxx
Corporation. If Customer elects to provide the cross corporate
guarantee; MCI will release other forms of surety upon receipt of such
cross corporate guarantee. However, should Customer elect to terminate
the cross corporate guarantee currently in effect under this
Agreement, Customer must provide alternative surety acceptable to MCI
concurrently with such termination of the cross corporate guarantee.
Cash deposits will be retained in an interest bearing account held by
MCI for a minimum of twelve (12) months. MCI shall reserve the right
to determine the customer's eligibility for refund of the deposit
based on customer's payment history and financial solvency and to
retain such deposit as is required to limit MCI's exposure."
Once this Agreement has been fully executed, any further amendments must be
in writing and signed by both parties.
Accepted and agreed:
Sattell Communications LLC MCI Telecommunications Corporations
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxx Name: Xxx Xxxxxxxxx
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Title: Chairman & CEO Title: Director
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Date: 7/1/96 Date: 7/2/96
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SECOND AMENDMENT
TO MCI SPECIAL CUSTOMER ARRANGEMENT
This is the Second Amendment (this "Amendment") to MCI Special Customer
Arrangement by and between MCI Telecommunications Corporation ("MCI") and
Concentric Network Corporation ("Customer") and amends that certain MCI Special
Customer Arrangement between MCI and Sattel Communications L.L.C. ("Sattel")
which was effective as of June 7, 1996 (the "SCA") and amended by that certain
First Amendment to MCI Special Customer which was signed by Sattel on July 1,
1996 (the "First Amendment"). The SCA and the First Amendment shall
collectively be referred to as the "Original Agreement." The Original Agreement
was assigned to Customer by Sattel pursuant to an Assignment and Novation
Agreement entered into as of August 7, 1996. Unless otherwise defined herein,
capitalized terms used in this Amendment shall have the same meanings as set
forth in the Original Agreement.
The parties hereby agree that the Original Agreement is amended as follows:
1. Survival of Original Agreement. Except as otherwise expressly modified or
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amended herein, all terms and conditions contained in the Original
Agreement shall remain in full force and effect and shall not be altered or
changed by this Amendment. The Original Agreement and this Amendment shall
collectively be referred to as the "Agreement."
2. Effective Date. This Amendment is effective as of November 1, 1996.
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3. Revised Attachment A to SCA. Attachment A of the Original Agreement shall
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be deleted in its entirety and replaced by the revised Attachment A
attached to, and incorporated by reference into, this Amendment.
4. Complete Agreement. The Agreement, together with MCI's F.C.C. Tariffs No.
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1 and 8, as amended from time to time, constitutes the complete agreement
of the parties and supersedes all other prior agreements and
representations concerning its subject matter.
This offer shall remain open and be capable of being accepted by Customer
until October 24, 1996. Once this Amendment has been fully executed, any
further amendments must be in writing and signed by both parties.
Accepted and agreed:
MCI Telecommunications Corporation Concentric Network Corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
-------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxx Xxxxxx
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Title: Director Title: Exec VP
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Date: 11/1/96 Date: 10/17/96
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ATTACHMENT A TO SCA
Contract Tariff
This Attachment A to the Agreement contains the rates, discounts, terms and
conditions of the MCI services provided under Schedule I.
1. Term of Service. The term of service is twenty-four (24) months from June
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7, 1996 (the "Effective Date"). Upon completion of the term of service, the
service arrangement under this Agreement will continue on a month-to-month
basis, and Customer will receive the rates and discounts for MCI services
as set forth in this Agreement provided, Customer's monthly usage equals or
exceeds one-twelfth (1/12th) of the Second Minimum, as that term is defined
in Section 3 below.
2. Description of Service. Service may consist of any one or more standard
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tariffed MCI services.
3. Minimum Volume Requirements. For purposes of this Contract Tariff, Base
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Rates are defined as the rates and discounts for which Customer qualifies
under this Contract Tariff.
3.1 Customer's Minimums. From the Effective Date through April 30, 1997
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(the "First Period"), Customer's use of MCI services under this
Contract Tariff must equal or exceed Three million six hundred
thousand dollars ($3,600,000), calculated at Base Rates (the "First
Minimum"). From May 1, 1997 through June 6,1998 (the "Second Period").
Customer's use of MCI services under this Contract Tariff must equal
or exceed Four million nine hundred fifteen thousand dollars
($4,915,000), calculated at Base Rates (the "Second Minimum"). Any
time after July 1, 1997, Customer may, upon sixty (60) days prior
written notice to MCI, decrease the Second Minimum to Three million
six hundred thousand dollars ($3,600,000). The rates and discounts
for MCI services will be adjusted as of the effective date of such
notice. Customer may only decrease the Second Minimum one time during
the term of the service.
3.2 Data Sub-Minimum. During the First and Second Periods combined,
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Customer's use of MCI Dedicated Leased Line Services under this
Contract Tariff must equal or exceed [*], calculated at Base Rates
(the "Data Sub-Minimum"). Customer usage of MCI Dedicated Leased Line
Services will be eligible to count towards each of the First and
Second Minimums and the Data Sub-Minimum.
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
4. Rates and Charges. The Customer will be charged the following rates for
-----------------
domestic interstate service usage. (For all domestic intrastate and
international service usage, Customer will pay standard tariffed rates set
forth in the applicable MCI tariffs.)
4.1 Postalized Rates. The Customer will be charged the following
----------------
postalized rates for Customer's interstate usage. [*]
4.1.1 MCI 800 Service:
---------------
(1) In lieu of any other rates and discounts, Customer will
be charged the following per-minute rates for domestic
interstate MCI 800 DAL usage, depending on termination
type and the time of day that the call is made:
Termination Type Business Day Non-Business Day
---------------- ------------- ----------------
800 DAL [*] [*]
800 CBL [*] [*]
(2) If Customer decreases the Second Minimum to Three
Million Six Hundred Thousand Dollars ($3,600,000)
pursuant to Section 3.1 above, in lieu of any other
rates and discounts, Customer will be charged the
following per-minute rates for domestic interstate MCI
800 DAL usage as of the effective date of the decrease,
depending on the termination type and the time of day
that the call is made:
Termination Type Business Day Non-Business Day
---------------- ------------ ----------------
800 DAL [*] [*]
800 CBL [*] [*]
(3) This is a featureless product offering. Customer will
incur additional charges for any features ordered.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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4.1.2 MCI Vision Service:
------------------
(1) Except as set forth in paragraph 4.1.2(2) below, for
domestic MCI Vision Service, Customer will pay the
standard rates pursuant to the Vision Power Rate
Program as set forth in the Tariff and receive the
discounts associated with the MCI Vision Power Rate
Value Insurance Plan Two (2) year and [*] commitment
levels as set forth in the Tariff except that minimum
term and volume levels will not apply.
(2) In lieu of the discounts set forth in paragraph
4.1.2(l) above, for interstate MCI Vision Service,
Customer will pay the following postalized rates
depending on the type of access and the time of day
that the call occurs.
Access Peak Off-Peak
--------- --------- ----------
Dedicated [*] [*]
Switched [*] [*]
4.1.3 Dedicated Leased Line Services:
------------------------------
(1) In lieu of any other rates and discounts and except as
set forth in paragraph 4.1.3(2) below, Customer will be
charged the following per mile rates for domestic
interstate Inter Office Channel ("OC") Services over
MCI Dedicated Leased Line Services:
Terrestrial Digital Service 1.5 ("TDS 1.5"):
-------------------------------------------
Miles* Monthly Rate
[*] [*]
[*] [*]
[*] [*]
[*] [*]
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Xxxxxxxxxxx Digital Service 45 ("TDS 45"):
-----------------------------------------
Miles* Monthly Rate
[*] [*]
[*] [*]
[*] [*]
[*] [*]
* Miles are not calculated on an incremental basis, for
example, [*]
(2) Customer shall receive the discounts associated with
the three (3)-year Access Pricing Plan as set forth in
the Tariff on Customer's Dedicated Leased Line Service
usage. The standard term and volume commitments set
forth in the Tariff shall apply. To the extent that
Customer has its circuits located at MCI facilities or
locations, or has otherwise provided for local access,
Customer will not be obligated to pay Access
Collocation and/or Central Office Connection charges as
set forth in the Tariff.
5. Volume Discounts. Except as set forth in Sections 3.1 and 4.1.2 above, if
----------------
Customer satisfies the First and Second Minimums, Customer will be charged
the rates and receive the discounts set forth under this Section 5.
5.1 MCI HyperStream Frame Relay Service. For domestic MCI HyperStream
-----------------------------------
Frame Relay Service, Customer will receive with the standard E{PP
discount associated with a [*] Monthly Minimum and two (2) year term
of service as set forth in the Tariff. This discount does not apply to
the following: charges for MCI services other than those described in
Section 2, non-tariffed products, access or egress (or related)
charges imposed by third parties; Directory Assistance charges;
standard tariffed non-recurring charges; taxes or governmental
surcharges.
6. Classifications, Practices, and Regulations.
-------------------------------------------
6.1 Underutilization. If in either the First or Second Period, Customer's
----------------
use of service under this Contract Tariff, calculated at Base Rates,
fails to satisfy the respective First or Second Minimum, Customer will
be billed and required to pay: (1) all
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outstanding amounts billed to Customer during the applicable First
and/or Second Period; and, (2) an underutilization charge (which
Customer agrees is reasonable) equal to [*]
6.2 New Technology Change. Customer will not be liable for
---------------------
underutilization charges where such underutilization charges arise
solely [*] provided that in any case Customer will use its best
reasonable efforts to: (1) direct to MCI new traffic or traffic not
currently carried by MCI in order to meet the First and/or Second
Minimum; and (2) retain MCI as the provider of the service required
pursuant to the New Technology Change. [*] In the event Customer's
Usage Charges fall below seventy percent (70%) of the First and/or
Second Minimum during the term of service as the result of a [*],
Customer and MCI will use good faith efforts to re-negotiate the terms
and conditions of this Agreement, including but not limited to all
rates and discounts; provided however, that if a new agreement is not
reached within sixty (60) days of MCI's notice to Customer that
Customer's Usage Charges have fallen below seventy percent (70%) of
the First and/or Second Minimum during the term of service, MCI may
terminate this Agreement without liability to Customer upon ninety
(90) days prior written notice to Customer.
6.3 Business Downturn. Customer will not be liable for underutilization
-----------------
charges where such underutilization charges are solely [*]. In the
event that Customer's Usage Charges fall below seventy percent (70%)
of the First and or Second Minimum during the term of service as a
result of such business downturn, MCI and Customer will cooperate in
efforts to develop a mutually agreeable alternative proposal that will
address the concerns of both parties and comply with all applicable
legal and
-------------------
[*] Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested to the omitted portions.
-5-
regulatory requirements and restrictions, provided, however, that if a
new agreement is not reached within thirty (30) days of MCI's notice
to Customer that Customer's Usage Charges have fallen below [*], MCI
may terminate this Agreement without liability to Customer upon ninety
(90) days written notice. By way of example and not limitation, the
alternative proposal may include changes in discounts, credits,
revenue, and/or volume commitments, the multi-year service period, and
other provisions. Subject to all applicable legal and regulatory
requirements of the Federal Communications Commission and the
Communications Act of 1934, as amended, MCI will prepare and file any
tariff revisions necessary to implement such mutually agreeable
alternative proposal. This provision will not apply to a change
resulting from a decision by Customer to: (1) reduce its overall use
of telecommunications service; (2) alter its telecommunications
network architecture; or (3) transfer portions of its
telecommunications traffic or projected growth to carriers other than
MCI. This provision will also not apply during the first twelve (12)
months of the term of service and, after the first twelve (12) months,
may only be used one (1) time by Customer during the term of service.
Customer must give MCI immediate written notice of the conditions it
believes will require the application of this provision.
6.4 Force Majeure. Customer will not be liable for underutilization
-------------
charges where such underutilization charges are solely due to events
beyond the reasonable control of Customer. The Customer will promptly
notify MCI of the force majeure circumstances, and the term of service
will be extended by the time of the delay caused by the force majeure
event.
6.5 Termination.
-----------
6.5.1 Except as set forth below, if Customer terminates service
under this Contract Tariff after the Effective Date and
before the expiration of the term of service, it will
constitute a breach of this Contract Tariff and Customer
will be billed and required to: (1) repay a pro rata portion
of all credits received under this Contract Tariff; and, (2)
pay an early termination charge equal to one hundred percent
(100%) of the First and/or Second Minimum for the First
and/or Second Period remaining in the term of service or a
pro rata portion thereof for any partial First and/or Second
Period.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-6-
6.5.2 The Customer may terminate this Contract Tariff prior to the
expiration of the term of service without termination
liability if Customer enters into another Contract Tariff
with term and volume commitments equal to or greater than
the commitments under this Contract Tariff.
6.6 Service Interruptions.
---------------------
6.6.1 Customer will be entitled to Credit Allowances for Service
Interruptions in accordance with Section 6.15 of the Tariff.
A Service Interruption begins when Customer reports the
interruption to MCI and releases the "Service Element" (as
hereinafter defined) for testing and repair and ends when
MCI retenders the Service Element to Customer. For the
purpose of determining the First and/or Second Minimum, MCI
will not reduce Usage Charges by the amount of Credit
Allowances applied. For purposes of this Agreement, "Service
Element" refers to the specific MCI service affected at the
specific geographic Customer location affected.
6.6.2 Customer may discontinue receipt of service on a Service
Element at any time without liability except as otherwise
expressly provided for in the Tariff or this Agreement (an
example of such a provision might be where a private line
installation charge is waived but is to be assessed if the
line is not in place for a minimum period). If Customer
discontinues receipt of service on a "Service Element having
chronic Service Interruptions" and does not take substitute
service from MCI, the First and/or Second Minimum for
purposes of assessing underutilization charges will be
reduced by the average monthly Usage Charges for the
discontinued Service Element measured over the last three
(3) billing months prior to discontinuation. For purposes of
this Contract Tariff, a Service Element having chronic
Service Interruptions is one on which there have been three
(3) or more Service Interruptions, each consisting of thirty
(30) or more minutes, totaling twenty-four (24) or more
hours within three (3) consecutive calendar months.
6.7 Payment Arrangements. The Customer is required to pay MCI for its
--------------------
services within (30) days of the date of MCI's invoice. In
consideration for services provided by MCI, Customer agrees to pay
surety in the amount of [*]. Initial surety requirements will be based
on estimated usage projections and MCI will reserve the right to
require additional surety based on MCI traffic reporting and/or actual
usage. Should Customer fail to provide additional surety in a form
acceptable to MCI within
-------------------------
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-7-
ten (10) business days after Customer's notice of such requirement,
MCI may elect to disconnect all services immediately and without
further notice. Surety may be in the form of a cash deposit, an
Irrevocable Letter of Credit for a term of one (1) year issued by an
MCI approved financial institution, a performance bond with terms and
conditions and from an insurer acceptable to MCI or a cross corporate
guarantee from Xxxxx Corporation. If Customer elects to provide the
cross corporate guarantee, MCI will release other forms of surety upon
receipt of such cross corporate guarantee. However, should Customer
elect to terminate the cross corporate guarantee currently in effect
under this Agreement, Customer must provide alternative surety
acceptable to MCI concurrently with such termination of the cross
corporate guarantee. Cash deposits will be retained in an interest
bearing account held by MCI for a minimum of twelve (12) months. MCI
will reserve the right to determine Customer's eligibility for refund
of the deposit based on Customer's payment history and financial
solvency and to retain such deposit as is required to limit MCI's
exposure.
6.8 Tariffed Rates. If MCI offers discounts applicable to a combination
--------------
of its services (as opposed to discounts on an individual service),
Customer who has subscribed to one of the combined services may elect
to receive the benefits of such discounts in lieu of its SCA
discounts. If Customer so chooses, the new discounts become binding
for the remainder of the term of service.
6.9 Conditions. In order for Customer to be eligible to receive the rates
----------
and discounts provided under this Agreement, Customer must satisfy the
following conditions on an annual basis:
6.9.1 Customer agrees that it will utilize MCI [*] during the term
of service (the "Exclusive Carrier Requirement").
6.9.2 MCI may request in writing and Customer will promptly
provide to MCI in writing, proof satisfactory to MCI that
Customer is satisfying the terms of the Exclusive Carrier
Requirement for the First and/or Second Period
("Documentation"). MCI may review the Documentation solely
for the purpose of determining Customer's compliance with
the Exclusive Carrier Requirement.
6.9.3 The rates and discounts for MCI Services set forth in this
Agreement are conditioned upon Customers satisfaction of the
Exclusive Carrier Requirement. If Customer fails to satisfy
the Exclusive Carrier Requirement
-------------------------
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-8-
be applied to Customer's usage of MCI Services for the First
and/or Second Period will be MCI standard Tariff rates (less
standard discounts) notwithstanding anything to the contrary
in this Agreement.
6.9.4 If the percentage of Customer's usage of MCI 800 Service
terminating via dedicated access facilities during any
annual billing period (excluding usage routed to switched
lines for disaster recovery purposes only) is less than one
hundred percent (100%) of its total usage of MCI 800 Service
(as measured in minutes of use), Customer will pay an
additional [*] per minute of usage of MCI 800 Service
terminating via dedicated access facilities below such one
hundred percent (100%) threshold.
6.9.5 If the percentage of Customer's usage of interstate MCI 800
Service is less than eighty percent (80%) of its total usage
of MCI 800 Service (as measured in minutes of use), Customer
will pay an additional [*] per minute of usage of
interstate MCI 800 Service under such eighty percent (80%)
threshold.
6.9.6 If the percentage of Customer's usage of MCI 800 Service
occurring during the Non-Business Day time period is less
than sixty percent (60%) of its total usage of MCI 800
Service, Customer will pay an additional [*] per minute of
usage of Non-Business Day MCI 800 Service under such sixty
percent (60%) threshold.
6.9.7 Customer represents that as of April 30, 1997, Customer's
total of all IOC mileage for leased TDS 1.5 circuits will be
equal to an average of [*] miles or less and as of October
31, 1997, TDS 45 circuits will be equal to an average of [*]
miles or less.
6.9.8 Customer represents that as of April 30, 1997, Customer will
lease from MCI a minimum of [*] TDS 1.5 circuits and as of
October 31, 1997, a minimum of [*] TDS 45 circuits;
provided, however, that such TDS 1.5 and 45 circuits are
available to Customer's selected locations.
6.10 Credits.
-------
6.10.1 The Customer will receive a credit, not to exceed [*], for
the one-time charges associated with the implementation of
MCI service under this Contract Tariff. Such credits will be
issued from time to time throughout the
-------------------------
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Contract Tariff. Such credits will be issued from time to
time throughout the term of service as MCI service under
this Contract Tariff is installed. Any applicable Tariffed
promotional credits will be applied prior to this credit.
6.10.2 If Customer decreases the Second Minimum to [*] pursuant to
Section 3.1 above, for each consecutive three (3) month
period following the effective date of the decrease (each a
"Quarterly Period"). Customer will receive a credit of [*]
calculated on and applied to the first [*] of Customer's
total domestic interstate MCI 800 DAL Usage Charges for each
Quarterly Period.
6.10.3 If from the Effective Date until November 30, 1996,
Customer's usage of MCI 800 Service intrastate equals or
exceeds the one (1) of the total 800 intrastate minute
levels set forth below, then Customer will receive one (1)
of the corresponding credits set forth below on Customer's
domestic interstate usage charges
Total 800 Intrastate Minutes Credit
---------------------------- ----------
[*] [*]
[*] [*]
Customer is entitled to only one (1) of the above credits
and any such credit to which Customer is entitled to will be
applied to Customer's December 1996 monthly invoice
7. Assignment. This Agreement will be binding upon and inure to the benefit
----------
of the successors and permitted assigns of the parties hereto. Neither this
Agreement, nor any rights or obligations of Customer herein will be
transferable or assignable by Customer without MCI's prior written consent,
which consent will not be unreasonably withheld.
8. Ordered Service. Service under this option is available to other customers
---------------
MCI ordering service within 30 days of the Effective Date of this option.
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requested with respect to the omitted portions.
-10-
ASSIGNMENT AND NOVATION AGREEMENT
This Assignment and Novation Agreement (the "Agreement") is made and entered
into as of August 7, 1996 (the "Effective Date"), by and between MCI
Telecommunications Corporation ("MCI"), Sattel Communications L.L.C. with
offices located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Sattel")
and Concentric Network Corporation with offices located at 00000 X. Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("CNC").
1. The parties stipulate and recite that:
a. MCI and Sattel entered into an MCI Special Customer Arrangement, dated
May 17, which was amended by the First Amendment, dated July 2, 1996
(the "SCA"). The SCA provides that Sattel will receive certain MCI
services from MCI pursuant to the terms and conditions set forth in
the SCA.
x. Xxxxxx desires to be discharged from the performance of its
obligations set forth in the SCA (the "Obligations").
c. CNC desires to receive the MCI services pursuant to the SCA and to
perform the Obligations.
d. MCI desires to release Sattel from the Obligations, provided that CNC
agrees to perform the Obligations and to be bound by the terms and
conditions of the SCA and this Agreement.
2. For the reasons recited above, and in consideration of the mutual
covenants contained in this Agreement, the parties agree as follows:
x. Xxxxxx assigns to CNC the SCA, and CNC accepts such assignment from
Sattel. CNC has fully read and understands the SCA and assumes and
shall perform the Obligations.
b. CNC agrees to be bound by all of the terms and conditions of the SCA
in every way, as if it were an original party to the SCA. CNC agrees
that on August 9, 1996, CNC shall pay MCI [*] and that beginning
August 16, 1996, CNC shall pay MCI weekly in advance for MCI services
provided pursuant to the SCA. Such payments shall be via electronic
wire transfer to MCI's bank account. Such payments must be received
---------------------
[*] Certian information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
by MCI on Friday of each week by 2:00 PM EST. If the payment date is a
federal holiday, the payment must be received by 2:00 PM EST the next
business day. CNC shall make each electronic wire transfer pursuant to
the instructions set forth below, but MCI may modify these
instructions upon at least thirty (30) days prior written notice to
CNC. The amount of CNC's weekly wire transfers shall be [*]. If the
amount of CNC's prepayments in a calendar month is less than its
actual invoiced MCI charges for said calendar month, CNC shall pay the
difference with its next wire transfer to MCI. CNC shall make each
electronic wire transfer pursuant to the following instructions, and
understands that failure to do so will result in cancellation of MCI
services in accordance with MCI Tariff No. 1 filed with the FCC,
without further notification.
Bank Name: The First National Bank of Chicago
ABA#:
DDA #:
Acct Name: MCI Telecommunication Corporation
Acct#:
Cust Name: Concentric Network Corporation
c. MCI releases Sattel from all claims for any liability that has arisen
or may have arisen with respect to the SCA except for those relating
to outstanding invoices for MCI services provided by MCI to Sattel
before the Effective Date. MCI accepts the liability of CNC in lieu of
the liability of Sattel. MCI shall be bound by the terms and
conditions of the SCA in every way as if CNC were named in the SCA in
place of Sattel.
d. This Agreement may be signed in counterparts.
---------------------
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requested with respect to the omitted portions.
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In witness whereof; the parties have caused this Agreement to be executed
by their respective authorized representatives.
Sattel Communications LLC Concentric Network Corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: Vice President and CFO
------------------------ --------------------------
Date: August 7, 1996 Date: August 7, 1996
------------------------- ---------------------------
MCI Telecommunications Corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name Xxxxxx Xxxxx
Title:
------------------------
Date: August 8, 1996
-------------------------
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