EXHIBIT 10.13
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Effective Date: September 15, 1995
AGREEMENT
This Agreement ("Agreement") is entered into by and between TIME WARNER
COMMUNICATIONS, a Delaware General Partnership, having an office at 000
Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("TWComm"), and AT&T
COMMUNICATIONS, INC., a Delaware corporation, having an office at 32 Avenue of
the Americas, Xxx Xxxx, Xxx Xxxx 00000, on behalf of itself, the Interstate
Division of AT&T Corp., a New York corporation, and each of their interexchange
company affiliates (individually and collectively "AT&T").
Whereas, TWComm, acting through its subsidiaries and affiliates, is in the
business of providing special access, switched access, private line, local
calling, and other business telecommunications services in certain Metropolitan
Statistical Areas ("MSAs") within the United States; and
Whereas, TWComm intends to offer these and other business services through
affiliates controlled by, and under common ownership with, TWComm and certain
other entities ("Local Entities") in certain MSAs proposed by TWComm and agreed
to by AT&T ("Selected MSAs"); and
Whereas, in consideration of TWComm's making such business services
available to AT&T in each Selected MSA, AT&T agrees to purchase such business
services ordered from TWComm and the Local Entities in each Selected MSA;
Now, therefore, in consideration of the foregoing premises and the mutual
covenants of this Agreement, TWComm and AT&T agree as follows:
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PART I: General
1. Introduction
1.A This Agreement sets forth the terms, conditions, and pricing principles to
govern all offers by TWComm through its Local Entities, and all purchases by
AT&T of certain business telecommunications Services (as defined in Section 6 of
this Agreement) in certain areas within the Selected MSAs. The parties expect
this Agreement to be nationwide in scope and cover multiple MSAs, subject to
AT&T's acceptance of TWComm's proposed MSA Schedules, as discussed further in
Section 4 of this Agreement.
1.B This Agreement also sets forth provisions applicable to certain Services
provided by TWComm at TWComm's option outside Expected Serving Areas, as defined
in Section 5 of this Agreement.
2. Term of Agreement
2.A When executed by authorized representatives of TWComm and AT&T, this
Agreement shall become effective as of the Effective Date stated above, and
shall expire thirteen years from the Effective Date, unless terminated at an
earlier date pursuant to Section 31 of this Agreement. Each MSA Schedule shall
become effective as of the Effective Date set forth therein, upon the execution
and delivery thereof by authorized representatives of AT&T, TWComm and the Local
Entity specified therein, and shall expire upon expiration of this Agreement or
any earlier date upon which such MSA Schedule is terminated pursuant to Section
32 of this Agreement.
3. Defined Terms
3.A For purposes of this Agreement, words and phrases spelled with initial
capital letters (other than proper names) shall have the defined meanings set
forth in the applicable provisions of this Agreement.
3.B For convenience, an index of defined terms is contained in Appendix A.
3.C Unless the context otherwise requires, references hereinafter to "TWComm",
when used in the context of obligations or responsibility related to the offer
and provision of Services, or to the management and operation of the network
(including without limitation the installation, maintenance and removal of
Facilities) over which Services shall be provided, shall be interpreted to refer
only to a Local Entity that has assumed such obligations or responsibilities as
described in Section 4 and Section 26.B.i of this Agreement; all other such
references shall refer only to TWComm as defined in the first paragraph of this
Agreement.
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PART II: Areas Served
4. Selected MSAs and MSA Schedules
4.A For purposes of this Agreement, certain parts of the United States are
divided into geographical areas designated as MSAs. TWComm expects to offer
Services to AT&T under the terms, conditions and pricing principles of this
Agreement in certain areas within Selected MSAs. (The parties expect that TWComm
will propose, and AT&T will consider, MSA Schedules for those MSAs listed in
Appendix B.) No MSA will be deemed a Selected MSA until such agreement is
evidenced by execution of a MSA Schedule, at each party's sole discretion, in
substantially the same form set forth in Appendix C on behalf of each party by
an authorized representative. Neither party shall have the right to rely upon
obtaining the other party's agreement to designate any MSA a Selected MSA unless
and until TWComm, AT&T, and the Local Entity have executed a MSA Schedule.
4.B Each MSA Schedule shall incorporate by reference the terms, conditions, and
prices of this Agreement, and each Local Entity, upon execution of a MSA
Schedule, will agree that all offers of Services by such Local Entity to AT&T in
the Selected MSA shall be governed by such terms, conditions, and prices. By
executing each MSA Schedule, AT&T shall be deemed to have consented to the
delegation by TWComm, and the assumption by the Local Entity named therein, of
all obligations and responsibility for the offer and provision of Services in
accordance with the terms set forth, or incorporated by reference, in the MSA
Schedule, subject to the following. TWComm shall be responsible for causing such
Local Entities to comply with the terms, conditions, and prices of the
applicable MSA Schedule and this Agreement and shall be financially liable, for
any money amounts payable to AT&T under this Agreement, for a Local Entity's
failure to comply with such terms, conditions, and prices; provided that TWComm
itself shall not be required to actually provide or resell Services in the
Selected MSA. No Local Entity shall be responsible in any regard for the
performance of any MSA Schedule to which it is not a party.
4.B.i "Local Entity" shall mean any entity which:
4.B.i.(a) is managed by TWComm and the outstanding common equity
interests in which are entirely owned, directly or indirectly, by
any one or more of Time Warner Entertainment Company, L.P., Time
Warner Entertainment-Advance Xxxxxxxx Partnership, and Time Warner
Inc.; or
4.B.i.(b) is otherwise designated by mutual agreement of TWComm and
AT&T to be a Local Entity.
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4.C The exact geographic area of each Selected MSA will be set forth in the
applicable MSA Schedule.
5. Serving Areas
5.A Every Selected MSA is composed of defined geographic areas ("Exchange
Areas"), each corresponding to the area served by a local serving office ("LSO")
of the dominant telephone company offering ubiquitous facilities-based local
exchange services ("Local Exchange Company" or "LEC"). The MSA Schedule for each
Selected MSA will identify those Exchange Areas within the Selected MSA in which
TWComm expects to offer Services ("Expected Serving Areas"). Each Exchange Area
comprising the Selected MSA that is not expressly identified as an Expected
Serving Area by the applicable MSA Schedule is deemed to be an Optional Serving
Area. TWComm, at its option, may offer any Service within an Optional Serving
Area under the terms, conditions and pricing principles of this Agreement. Each
Exchange Area in which TWComm is then currently offering the respective Service
under this Agreement shall be referred to as a Current Serving Area.
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PART III: Services and Prices
6. Services
6.A With respect to each Selected MSA, TWComm expects to offer to AT&T certain
wireline business telecommunications services, as defined below ("Services")
subject to the applicable terms, conditions and pricing principles of this
Agreement. Any Services that TWComm expects to offer to AT&T in each Selected
MSA are set forth in the applicable MSA Schedule. The Services that TWComm
expects to offer are defined as follows:
6.A.i "Dedicated Services" means services providing two point digital or
analog channels connecting any location within an Expected Serving Area or
Optional Serving Area to any other location within an Expected Serving
Area or Optional Serving Area in the same Selected MSA. (Such locations
may include, but are not limited to, all AT&T premises, all premises of
AT&T's customers, as well as the premises of any other supplier or user of
telecommunications services). The service characteristics and technical
specifications of Dedicated Services are set forth in Appendix D-1.
6.A.ii "Switched Services" means the following services, individually or
collectively as the context may require:
6.A.ii.(a) "Switched Access Service" means a service which provides
the switched connection and transport of international, interLATA
and intraLATA calls between an AT&T point of presence or other AT&T
network location (an "AT&T Serving Office") to which AT&T orders
Services from TWComm, and the point of call origination or
termination. The service characteristics and technical
specifications of Switched Access Service are set forth in Appendix
D-2.
6.A.ii.(b) "Switched Business Line Service" means dial tone lines
providing the capability to originate and terminate all types of
local exchange, intraLATA, interLATA, and international switched
services calls. The service characteristics and technical
specifications of Switched Business Line Service are set forth in
Appendix D-3.
6.A.ii.(c) "Local Calling Service" means a service which provides
the origination and termination of calls that originate and
terminate within the same Local Calling Area set forth in, or
determined pursuant to, a MSA Schedule. The service characteristics
and
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technical specifications of Local Calling Service are set forth in
Appendix D-4.
6.B AT&T and TWComm agree and acknowledge that this Agreement does not in any
respect provide for or apply to wireless telecommunications services, or
residential services of any nature; provided that mere transport of residential
calls via Dedicated Services shall not be deemed "residential service." TWComm
agrees not to pass any calls originating from a residential unit to an AT&T
Serving Office via Switched Access Service without AT&T's prior written
agreement. The scope of Services hereunder shall be based on the business or
residential usage of each individual unit (e.g., each individual apartment, or
suite of offices or the like, within a larger building).
7. Service Arrangements
7.A TWComm will offer Services in two service arrangements that are
distinguished by the type of location at which the Service is terminated. The
service arrangements (collectively "Service Arrangements") are as follows:
7.A.i "Transport Arrangement" means (1) with respect to Dedicated
Services, a Service Arrangement which originates at an AT&T Serving Office
and terminates at a point of interconnection with the LEC (i.e.,
collocation space in a LEC central office) ("Transport Premises"); and (2)
with respect to Switched Business Line Services, a Service Arrangement
which, regardless of where it originates, terminates at a Transport
Premises, whereby AT&T may interconnect a telecommunications service
provided by another entity (pursuant to an agreement between AT&T and such
entity) or by AT&T to the Transport Arrangement provided by TWComm. Only
Dedicated Services and Switched Business Line Services are offered under a
Transport Arrangement, as set forth in (1) and (2) above, respectively.
7.A.ii "Full Service Arrangement" means a Service Arrangement which
originates and terminates at a Served Premises (as defined in Appendix I)
that is not a Transport Premises (e.g., an AT&T Serving Office or a
Customer Premises). All Services are offered under a Full Service
Arrangement.
8. Service Elements
8.A Each Service is composed of its constituent components ("Service Elements").
The Service Elements composing each Service are described in the applicable
service description (Appendix D-1 through D-4). Unless it is expressly stated
otherwise in this Agreement, the terms, conditions and pricing principles
applicable to a Service shall not vary by Service Element.
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9. Right to Resell
9.A AT&T will have the right to control and monitor, in accordance with the
terms of this Agreement, the technical specifications and quality standards set
forth herein of each TWComm Service, including Services to be marketed under an
AT&T brand name or under such other name or xxxx as AT&T may elect under Section
9.B below.
9.B AT&T shall have the right to resell or repackage under an AT&T brand name,
or under such other name or xxxx as AT&T may elect, any Service or Similar
Service provided to AT&T by TWComm that AT&T deems to meet the applicable
standards set forth in Section 9.A above. AT&T shall have the right to control
the graphic specifications, and all other aspects, of all marketing and branding
materials used by it pursuant to the foregoing; provided that such material or
branding shall not infringe upon the rights of any person. The foregoing rights
are not intended to imply, and do not create, any license to AT&T or its
affiliates to use any brand, trademark, trade name or other trade dress of
TWComm or any of its affiliates. Any such license shall arise only when agreed
upon in writing by AT&T and TWComm or its affiliates, as applicable. AT&T will
Indemnify TWComm from and against any Damages arising out of any Actions in
which it is claimed that AT&T marketing or branding of TWComm Services infringes
any United States trademark or copyright (the terms "Indemnify," "Damages," and
"Actions" are defined in Appendix I).
10. Pricing Principles
10.A The pricing principles by which TWComm will establish rates and charges for
the Services offered to AT&T pursuant to this Agreement are set forth in the
following Appendixes:
i. Appendix E-1 General Pricing Principles;
ii. Appendix E-2 Pricing Principles: Dedicated Services;
iii. Appendix E-3 Pricing Principles: Switched Access Services;
iv. Appendix E-4 Pricing Principles: Switches Business Line Services;
v. Appendix E-5 Pricing Principles: Local Calling Services; and
vi. Appendix E-6 Determination of Discounts for Dedicated
Services and Switched Access Services.
10.B. Except as provided for by Section 10.C, to the extent that the pricing
principles of Appendix E-1 through E-6 of this Agreement * for calculating
TWComm's rates, the applicable * will be the lowest tariffed or published
rates available to AT&T within or between the same Exchange Areas.
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10.C. Notwithstanding Section 10.B, * offers services at non-tariffed and
unpublished rates, or at rates that cannot be specifically determined from
a tariff or published price list, the applicable * will be based upon a
proposal by * to AT&T. AT&T will provide TWComm with reasonable evidence
of all material terms and conditions of such offer, unless such disclosure
would violate AT&T's confidentiality obligations *, or unless any laws or
regulations prohibit such disclosure. If AT&T cannot provide such evidence
of * proposal to TWComm, then AT&T and TWComm will mutually agree to the
Price for the applicable Service. If under such a circumstance AT&T and TWComm
are unable to reach mutual agreement, TWComm will continue to use the rates
described in Section 10.B as its reference point, but AT&T may terminate the
applicable MSA Schedule, pursuant to Section 32 of this Agreement, and commence
a Transition Period (as defined in Appendix E-6) in the applicable Selected MSA.
10.D If TWComm offers in any Selected MSA a wireline business telecommunications
service that is not a Similar Service to any of the Services provided for in
this Agreement ("New Service"), then AT&T and TWComm will negotiate in good
faith the prices, terms and conditions under which TWComm would expect to offer,
and AT&T would expect to purchase such New Service in such Selected MSA. The
parties agree that the pricing principles used to determine the price of the
Service that is most closely related to the New Service will be used as a guide
for the negotiations for the Price of the New Service, but will not be binding
upon the parties. New Services shall not include any information or
content-based telecommunications service.
10.E TWComm will not assess AT&T (or AT&T's customer) any rate, charge, fee,
tax, or surcharge in connection with any Service or New Service except those
specifically provided for in this Agreement or otherwise agreed to in writing by
TWComm and AT&T.
11. Embedded Services
11.A AT&T from time to time may issue an inquiry affording TWComm the
opportunity to provide Dedicated Services in place of existing LEC special
access, private line, or switched access local transport services ("Embedded
Services"). AT&T may request that Embedded Services be replaced with a Full
Service Arrangement or a Transport Arrangement provided by TWComm. Such Embedded
Services may terminate in Expected Serving Areas or Optional Serving Areas
within a Selected MSA. In addition to Service Credits provided for pursuant to
Section E-1.6.D of Appendix E-1, in connection with such inquiry, AT&T may
request that TWComm * Embedded Services. AT&T will provide all relevant details
regarding such * in such request. Upon such a
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request, TWComm shall notify AT&T whether TWComm would * that would be
associated with the transition of such Embedded Services to TWComm.
11.B If AT&T elects to transition Embedded Services from the LEC to TWComm
utilizing Full Service Arrangements, then AT&T shall also offer to transfer to
TWComm AT&T's customer of record status for the LEC secondary channel
terminations (commonly referred to as "LEC tails") for such Embedded Services;
provided that the LEC permits such a transfer without having to disconnect and
add each LEC secondary channel termination. if TWComm agrees to accept customer
of record status from AT&T for such secondary channel terminations, then TWComm
shall: (i) * which AT&T had previously elected when it was the customer of
record for the Embedded Service.
11.C Even if TWComm elects not to credit AT&T pursuant to Section 11.A, AT&T
may, at such time or at a later date, order Services to those locations under
the pricing principles of this Agreement.
11.D Regardless of TWComm's election * described under Section 11.A, TWComm
* the transition of Embedded Services to TWComm.
12. Transition of Services To This Agreement
12.A Unless otherwise provided in this Agreement or in a MSA Schedule, all
provisions of this Agreement shall take effect in each Selected MSA immediately
upon the MSA Schedule Effective Date.
12.B In each Selected MSA where AT&T and a Local Entity are parties to one or
more Communications Services Agreements or similar carrier-to-carrier agreements
for access and other telecommunications services ("CSAs"), the following
provisions shall apply:
12.B.i The MSA Schedule shall provide for the immediate termination of
such CSAs;
12.B.ii Pursuant to Appendix E-1, TWComm shall waive or reimburse any
nonrecurring charges applicable to the transition of Services from the
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CSAs (and any tariffs implementing such CSAs) to this Agreement (and any
tariffs implementing this Agreement);
12.B.iii Any Services provided to AT&T by TWComm on the MSA Schedule
Effective Date (whether under a CSA or otherwise) shall continue to be
provided to AT&T within that Selected MSA by TWComm (as specified in the
MSA Schedule), and the offering of such Services within a Selected MSA
shall become subject to this Agreement upon the MSA Schedule Effective
Date;
12.B.iv All nonrecurring or recurring charges incurred (whether or not
billed or collected) for Services through the MSA Schedule Effective Date
shall be governed by the CSA (and any tariff implementing the CSA), and
all nonrecurring or recurring charges incurred after the MSA Schedule
Effective Date (whether or not billed or collected) shall be governed by
the MSA Schedule and this Agreement; and
12.B.v Except to the extent required to implement the billing and
collection of charges for services rendered prior to the MSA Schedule
Effective Date, the other terms and conditions governing the ordering and
provision of Services shall be those in the CSA (and any tariff
implementing the CSA) for all activities prior to the MSA Schedule
Effective Date, and those in the MSA Schedule for all activities after the
MSA Schedule Effective Date, regardless of when an issue as to compliance
with such terms and conditions arises.
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PART IV: Network, Provisioning, Maintenance and Billing
13. Network and Infrastructure Deployment
13.A In each Expected Serving Area, TWComm expects to deploy network facilities
and infrastructure as necessary to provide each of the Services TWComm is
expected to offer pursuant to Part III of this Agreement. TWComm has submitted
to AT&T, and AT&T has accepted, TWComm's technical plan as to how TWComm intends
to satisfy each of the requirements set forth in "AT&T-CAP Infrastructure
Requirements" (described in Section 13.D below) ("Technical Plan"). Within 60
days of the Effective Date of this Agreement TWComm shall submit to AT&T a
nationwide disaster recovery plan acceptable to AT&T describing how TWComm would
respond to a failure to any primary component of its network ("Disaster Recovery
Plan"). Prior to the execution of a MSA Schedule, TWComm shall submit to AT&T a
network design plan for such MSA pursuant to Appendix F, that is reasonably
acceptable to AT&T ("Network Design Plan").
13.B Each MSA Schedule shall set forth the date by which TWComm expects its
network and infrastructure to be capable of offering Dedicated Services and
Switched Services, respectively, in each Expected Serving Area in accordance
with the applicable network requirements, infrastructure requirements, Technical
Plan and Network Design Plan, projected availability of regulatory approvals,
and other relevant factors ("Date of Expected Availability").
13.C Appendix F sets forth the network facilities architecture, technology, and
other technical characteristics applicable to all Current Serving Areas in every
Selected MSA. While nothing herein is to be construed as a commitment by TWComm
to deploy facilities or offer or provide Services at any time in any Exchange
Area, except as provided in Section 33.A of this Agreement, TWComm agrees that
it shall meet the requirements described in Appendix F and the AT&T-CAP
Infrastructure Requirements below in all Current Serving Areas at all times when
it actually provides Services to AT&T therein under a MSA Schedule.
13.D All AT&T infrastructure requirements, including but not limited to Service
provisioning and Service maintenance, applicable to all Current Serving Areas in
each Selected MSA are set forth in the then current version of "AT&T-CAP
Infrastructure Requirements" which is incorporated by reference into this
Agreement, and a copy of which (the then current version) has been provided to
TWComm. Throughout the term of this Agreement, AT&T shall have the right, in its
sole discretion, to modify AT&T-CAP Infrastructure Requirements by giving TWComm
no less than 60 days' prior written notice (provided that AT&T will give
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TWComm as much advance notice as reasonably possible in excess of such 60-day
requirement).
13.E Billing and collection of TWComm's charges for Services provided under this
Agreement shall be in accordance with the specifications and procedures set
forth in Appendix G-1 and Appendix G-2.
13.F Notwithstanding the requirements set forth in Appendix F and the AT&T-CAP
Infrastructure Requirements, TWComm understands that AT&T's continued purchasing
of Services hereunder throughout the term of this Agreement will depend on
TWComm's continuing to implement state-of-the-art technology, equipment,
facilities, processes, and techniques in connection with the delivery of
Services to AT&T.
14. Verification of Performance Capabilities
14.A At the time TWComm is first ready to offer Dedicated Services or Switched
Services in an Expected Serving Area in accordance with the network and
infrastructure requirements set forth in Section 13, TWComm will afford AT&T the
opportunity to evaluate TWComm's network and Service capabilities. Upon a
minimum of 15 days' prior written notice by AT&T (describing the scope and
location of such evaluation), TWComm shall also afford AT&T such evaluation
opportunity at all times during the term of this Agreement. Evaluation of
TWComm's performance capabilities may include, at AT&T's discretion:
14.A.i Physical inspections of TWComm's network ("Network Validation
Tests" and "Switch Validation Tests");
14.A.ii Assessments of TWComm's provisioning, maintenance, and billing
processes and systems ("Operational Readiness Assessments" or "ORAs"); and
14.A.iii Operational Readiness Tests ("ORTs") of TWComm's overall service
delivery capabilities for each Service Product.
14.B Initial deployment of the TWComm network and infrastructure will not be
deemed complete for an Expected Serving Area for purposes of this Agreement
until the initial assessments and tests specified in Section 14.A have been
completed to the mutual satisfaction of TWComm and AT&T. Accordingly, Appendix
E-6 of this Agreement sets forth the criteria for such assessments and tests as
Preconditions for the commencement of the Ramp-Up Period (defined in Appendix
E-6) for each Expected Serving Area. Any determination by AT&T that TWComm has
satisfied such assessments and tests shall be for the limited purpose of
determining whether the applicable Preconditions have been met and shall be
deemed to establish TWComm's compliance only with the network and
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infrastructure requirements of this Agreement tested thereby, and only for the
periods covered by such assessments or tests, and no more. The time frames for
AT&T to complete such assessments and tests shall be governed by the time
periods set forth in Section 14.E. Any evaluation that is not completed within
the prescribed time period shall be deemed to be waived by AT&T for the purpose
of satisfying any applicable Precondition, subject, however, to Section E-6.10.B
and E-6.11.B of Appendix E-6.
14.C For the purpose of determining the applicable time period for AT&T to
perform its evaluations as provided for by this Section 14, assessments and
tests will be classified as either Initial Evaluations or Subsequent
Evaluations.
14.C.i Dedicated Services Initial Evaluations include the tests AT&T
expects to perform following the receipt of TWComm's notice ("Network
Readiness To Serve Package") for Dedicated Services for a Selected MSA.
Dedicated Services Initial Evaluations may include the initial Dedicated
Services ORA, ORT and Network Validation Test for the initial set of
Expected Serving Areas within such Selected MSA.
14.C.ii Switched Services Initial Evaluations include the tests AT&T
expects to perform following the receipt of TWComm's Network Readiness To
Serve Package for Switched Services for a Selected MSA. Switched Services
Initial Evaluations may include the initial Switched Services ORA, ORT and
Switch Validation Test for the initial set of Expected Serving Areas
within such Selected MSA.
14.C.iii Subsequent Evaluations (for both Dedicated Services and Switched
Services) will include all tests that will be performed subsequent to the
Initial Evaluations. Subsequent Evaluations may include those Network
Validation Tests, Switch Validation Tests, ORAs and ORTs that are
performed as follow up tests due to (1) augmentations of TWComm's network
to address additional Expected Serving Areas; (2) implementation of New
Services or processes; or (3) any deficiencies noted during a previous
evaluation.
14.D Unless otherwise agreed to by the parties, TWComm will be limited to
initiating no more than four evaluation requests (either Initial Evaluations or
Subsequent Evaluations) in any one month period for all Selected MSAs. TWComm
may initiate these requests for MSAs listed in Appendix B in advance of
execution of the applicable MSA Schedule, however, AT&T is under no obligation
to commence such evaluations nor is AT&T subject to the time limitations to
perform such evaluations described in Section 14.E below until the applicable
MSA Schedule Effective Date.
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14.E Unless otherwise agreed to by the parties, the length of time AT&T will
have to conduct evaluations will be as follows:
14.E.i With respect to Dedicated Services, until the date that TWComm
successfully completes each of the tests associated with the Dedicated
Service ORTs, AT&T will have 6 months from the date AT&T receives a
reasonably satisfactory Network Readiness to Serve Package to complete its
Dedicated Services Initial Evaluations and report the findings to TWComm.
Once TWComm has successfully completed all of the tests associated with
the Dedicated Services ORTs, AT&T will have 3 months from receipt of a
reasonably satisfactory Network Readiness to Serve Package to complete its
further Dedicated Service Initial Evaluations and report the findings to
TWComm.
14.E.ii With respect to Switched Services, until the date that TWComm
successfully completes each of the tests associated with the Switched
Services ORTs, AT&T will have 6 months from the date AT&T receives a
reasonably satisfactory Network Readiness to Serve Package to complete its
Switched Services Initial Evaluations and report the findings to TWComm.
Once TWComm has successfully completed all of the tests associated with
the Switched Services ORTs, AT&T will have 3 months from receipt of a
reasonably satisfactory Network Readiness to Serve Package to complete its
further Switched Service Initial Evaluations and report the findings to
TWComm.
14.E.iii AT&T will have two months to complete any Subsequent Evaluations
from the date of receipt of TWComm's notice that TWComm is ready to
retest.
15. Provisioning Type
15.A For purposes of this Agreement, the network serving arrangement
("Provisioning Type") of each Service will be referred to by the following
terminology:
15.A.i Type I: Service configuration in which TWComm provides a Service
exclusively by means of network facilities operated and controlled by
TWComm or its affiliates.
15.A.ii Type II: Service configuration in which TWComm provides a Service
using a combination of facilities operated and controlled by the LEC, and
network facilities operated and controlled by TWComm or its affiliates.
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15.B The preferred method of provisioning is Type I. However, TWComm may choose
a different Provisioning Type to provide a Service, except as otherwise provided
for below.
15.B.i Each MSA Schedule will contain a list of locations (by street
address) that will be served by Type I provisioning for Dedicated
Services, and for Subscriber Lines for Switched Business Line Service as
part of TWComm's initial network deployment.
15.B.ii Appendix H sets forth details regarding the expected expansion of
TWComm's network to serve additional buildings via Type I provisioning.
15.C As provided for in this Section 15, a Service may be provisioned as Type
II. However, even in such cases, certain Service Elements must be furnished as
Type I, as specified below, unless otherwise agreed by the parties.
15.C.i The Service Elements of Dedicated Services shall be provisioned as
follows:
15.C.i.(a) Each Primary Channel Termination shall be provisioned as
Type I.
15.C.i.(b) Each Secondary Channel Termination shall be provisioned
as Type I or Type II in accordance with the requirements of Section
15.B and Appendix H.
15.C.i.(c) Each Internodal Connection entirely within one or more
Expected Serving Areas (exclusive of Optional Serving Areas) shall
be provisioned as Type I, in accordance with the requirements of
Section 15.B and Appendix H. Each Internodal Connection between an
LSO Node (as defined in Appendix D-1) and an LSO located in an
Optional Serving Area ("Optional LSO") shall be provisioned as
either Type I or Type II without limitation.
15.C.i.(d) Each Multiplexing function shall be provisioned as Type I
or Type II, in accordance with the requirements of Section 15.B and
Appendix H.
15.C.ii The Service Element of Switched Access Service referred to in
Appendix D-2 as Switched Access Transport shall be provisioned as Type I.
15.C.iii The Service Element of Switched Business Line Service referred to
in Xxxxxxxx X-0 as Subscriber Line shall be provisioned as follows:
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15.C.iii.(a) Full Service Arrangements shall be provisioned Type I
or Type II in accordance with the requirements of Section 15.B and
Appendix H; and
15.C.iii.(b) Transport Arrangements shall be provisioned as Type I.
15.C.iv Provisioning Types have no application to Local Calling Service.
15.D AT&T may designate on its service request that a Service be provisioned
either Type I or Type II. If TWComm elects not to provide the Provisioning Type
designated by AT&T, AT&T may cancel any such Service requests associated with
such Provisioning Type any time prior to the installation of the Service without
a charge of any type, including a cancellation charge; provided that if TWComm
rejects a Service request specifying Type II provisioning at a location where
TWComm is capable of providing Type I provisioning, such rejection will not
adversely affect TWComm's Service Performance Evaluation pursuant to Appendix K,
or Imputed Volumes pursuant to Appendix E-6.
16. TWComm Activities at LSOs, AT&T Serving Offices, and Customer Premises
16.A TWComm, at its own expense, will be solely responsible for obtaining from
building owners, governmental authorities, LECs, and any other persons or
entities, all rights and privileges (including, but not limited to, space, power
and illumination) which are necessary for TWComm to provide Services under this
Agreement.
16.B The terms and conditions upon which certain rights and privileges related
to TWComm's provision of Services may be obtained from AT&T with regard to AT&T
Serving Offices are set forth in this Section 16 and Appendix I of this
Agreement. In accordance with the provisions of Section 16.C and Appendix I,
AT&T shall provide space (with temperature maintained in conformance with the
environmental requirements set forth in Bellcore Network Equipment Building
Systems (PR-NWT-000063)(Issue 5/Sept. 1993), or any subsequent issue),
electrical power, and illumination for TWComm's Facilities (including space for
storage of spare parts for such Facilities) within the AT&T Serving Office, at
no cost to TWComm. AT&T will expedite the processing of TWComm's requests for
space, power, and illumination in accordance with Section 16.E.
16.C All other agreements that must be entered into between AT&T and TWComm
which are necessary for TWComm to obtain entry into, and are in support of,
TWComm activities at AT&T Serving Offices, will be listed in the applicable MSA
Schedule.
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16.D Where AT&T's Serving Office is part of a condominium or three-dimensional
conveyance arrangement under which contiguous real property is owned by one or
more third parties, or if AT&T's Serving Office is in space leased from a third
party, AT&T will work cooperatively with TWComm to seek from the third party
owner, lessor, or other lessees any appropriate easements, rights of way,
licenses, or other rights of access needed for TWComm's access through such
third party's real property. Where such cooperative efforts are not sufficient
to permit TWComm to obtain such rights or licenses, AT&T, at its sole
discretion, may work with TWComm to establish mutually acceptable alternative
arrangements whereby TWComm can provide Services to such AT&T Serving Offices.
16.E Upon execution of a MSA Schedule, AT&T will expedite the processing of
TWComm's space and power requirements in AT&T's Serving Offices within that MSA
for TWComm's equipment and cable used solely to serve AT&T. However, AT&T shall
not be obligated to expedite such processing in a Selected MSA if:
16.E.i a Special Control Event, as defined in Section 30, affecting such
Selected MSA occurs with respect to TWComm or with respect to the
applicable Local Entity and is not waived by AT&T; or
16.E.ii TWComm does not achieve Satisfactory Performance, as defined in
Appendix K, on a national level.
16.F In each customer premises to which AT&T has ordered Services, AT&T shall
provide at no cost to TWComm space, power and illumination for TWComm equipment
and cable used solely to provide AT&T-designated brand services under Type I
provisioning arrangements, but only to the extent permitted by applicable AT&T
tariffs and AT&T customer contracts.
16.G TWComm's opportunity to enter and use space in the AT&T Serving Offices and
in the premises of AT&T's customers pursuant to Section 16.A and 16.0 is a
nonexclusive license and privilege. This Agreement does not create or vest in
TWComm (or in any other person or entity) any leasehold estate, easement,
ownership interest, or other property right or interest of any nature in any
part of the AT&T Serving Offices or premises of AT&T's customers.
16.H Terms and conditions applicable to TWComm's activities in and around AT&T
Serving Offices and the premises of AT&T's customers and other Secondary
Locations (as specified in such designated field of AT&T's Access Service
Request) including, but not limited to, installation, maintenance, and operation
of TWComm equipment and cable, are set forth in Appendix I.
16.I Notwithstanding the provisions of Section 16.A, unless otherwise directed
by AT&T, TWComm shall refrain from any contact with AT&T's customers with
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respect to Services provided under this Agreement, and shall allow AT&T to serve
as the sole contact with such customers to obtain entry upon customer premises,
release of Service for cutover or maintenance, and for all other similar
purposes under this Agreement. Therefore, TWComm shall not be held responsible
or accountable for failure to meet any of the conditions of this Agreement
caused in whole or significant part by AT&T's actions or failure to act under
this Section 16.I.
16.J If TWComm provides dedicated access services directly to AT&T's customers
under Shared Customer-Provided Access arrangements, such arrangements will
require a separate written contract ("Space License") between AT&T and TWComm
for space, power, and other physical arrangements in the AT&T Serving Office.
(Shared Customer-Provided Access means an arrangement under which TWComm
interconnects with the AT&T network so that TWComm can directly market and
provide special access services to customers of AT&T interexchange services.)
Unless TWComm and AT&T otherwise mutually agree in writing, TWComm shall furnish
these Shared Customer-Provided Access services by means of equipment and cable
which are separate from the equipment and cable used to provide Service to AT&T
under this Agreement, and TWComm shall not use any of its privileges under this
Agreement in the provision of such Services. For purposes of this Section 16.J,
each strand of fiber optic cable is deemed to be an individual "cable."
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PART V: Service Quality
17. Acceptance Testing
17.A Prior to delivery of each Dedicated Service, Switched Access Transport, and
Switched Business Line Service, TWComm shall afford AT&T the opportunity to
perform acceptance testing in accordance with the specifications and procedures
set forth in the then current version of the AT&T-CAP Infrastructure
Requirements.
17.B Following an interruption (as described in Section J.3.B of Appendix J of
this Agreement) of a Dedicated Service, Switched Access Transport, or Switched
Business Line Service, TWComm shall afford AT&T the opportunity to perform
acceptance testing in accordance with the specifications and procedures set
forth in the then current version of the AT&T-CAP Infrastructure Requirements.
18. Direct Measures of Quality.
18.A In providing Services and performing related functions, AT&T expects that
TWComm shall meet or exceed the Direct Measures of Quality ("DMOQs") designated
from time to time by AT&T. (The method which shall be used to evaluate TWComm's
service performance with respect to AT&T's DMOQs is set forth in Appendix K.)
The document that contains the initial set of DMOQs is referred to herein as the
"CAP Performance and Quality Requirements" which is incorporated by reference
into this Agreement, and a copy of which has been provided to TWComm. Throughout
the term of this Agreement AT&T shall have the right, in its sole discretion, to
modify the CAP Performance and Quality Requirements by giving TWComm no less
than 30 days' prior written notice (provided, that AT&T will give TWComm as much
advance notice as possible in excess of such 30 day requirement). A more
detailed description of DMOQs and the administration of such is provided in
Appendix K.
18.B Notwithstanding AT&T's right to discontinue its purchase of Services at its
sole discretion at any time during the term of this Agreement, AT&T's sole
remedy for TWComm's failure to achieve Satisfactory Performance (as set forth in
Appendix K), is the application of Remedies specified in Appendix E-6 of this
Agreement.
19. Quality Initiatives
19.A TWComm has established and will maintain a support organization, the
purpose of which shall be to work towards maintaining and improving the
performance by TWComm under this Agreement and any MSA Schedules.
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19.B TWComm will participate with AT&T in joint quality programs as reasonably
requested by AT&T.
19.C TWComm will implement supplier quality principles to the extent
economically reasonable in support of AT&T's candidacy for a Xxxxxxx Xxxxxxxx
National Quality Award, International Standards Organization registration, and
other recognitions of quality.
20. Remedies for Service Deficiencies
20.A TWComm will offer Service Assurance Warranties ("SAWs") as described in
Appendix J for *. Notwithstanding Section 38 of this Agreement, TWComm shall
issue credits to AT&T pursuant to Appendix J of this Agreement *, unless TWComm
can demonstrate *.
20.B As described in further detail in Appendix E-6 of this Agreement, TWComm's
continuing failure to * in a Selected MSA may have the following
consequences:
20.B.i If TWComm's continuing failure (i.e., failure over the time periods
specified in Appendix E-6) * occurs during a time period in which any
Expected Serving Area within such Selected MSA is in a Ramp-Up Period
(as defined in Appendix E-6), then TWComm is subject to * (as these terms
are defined in Appendix E-6) for all such Expected Serving Areas within
the Selected MSA.
20.B.ii If TWComm's continuing failure (i.e., failure over the time
periods specified in Appendix E-6) to meet AT&T's DMOQs occurs during a
time period in which any Expected Serving Area within such Selected MSA is
in a Plateau Period (as defined in Appendix E-6), then TWComm is subject
to *.
20.B.iii TWComm's Service performance deficiencies with respect to
Dedicated Services will affect only the Dedicated Services Ramp-Up
Schedule and/or Volume Targets; TWComm's Service performance deficiencies
with respect to Switched Services will affect only the Switched Services
Ramp-Up Schedule and/or Volume Targets.
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20.C If any AT&T customer experiences Chronic Trouble (as defined in Section
20.C.v below) associated with any Service provided by TWComm:
20.C.i AT&T shall have the right to * within the MSA by TWComm;
20.C.ii TWComm shall * for those Services;
20.C.iii TWComm * and
20.C.iv The disconnected Services will be * this Agreement for a period
of (1) * from the date of disconnection, in the case of Dedicated
Services, or (2) * from the date of disconnection, in the case of Switched
Services.
20.C.v A Service shall be deemed to experience Chronic Trouble * (as
described in Section J.3.B of Appendix J of this Agreement) *.
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PART VI: Regulatory
21. TWComm Regulatory Approvals
21.A TWComm at its own expense, shall be solely responsible for obtaining all
regulatory certifications, authorizations, and permits needed to offer Services
to AT&T in any MSA in accordance with this Agreement and the applicable MSA
Schedule. TWComm shall not be obligated to, and shall not, commence offering any
Service to AT&T in any MSA if TWComm has not obtained all such certifications,
authorizations, and permits therefor. TWComm will be solely responsible for
determining which regulatory approvals are required to satisfy applicable law
and regulation, and the adequacy of such approvals to satisfy the requirements
of this Agreement.
21.B TWComm agrees to promptly notify AT&T of any regulatory applications filed,
and approvals received, by TWComm or any Local Entity relevant to Services under
this Agreement.
22. AT&T Regulatory Approvals
22.B AT&T, at its own expense, will be solely responsible for obtaining all
regulatory certifications, authorizations and permits needed by it to offer
services (including resale of Services) to its customers as contemplated by this
Agreement and any applicable MSA Schedule.
23. Inter-Carrier Contract: Tariffs
23.A The parties acknowledge that this Agreement is an inter-carrier contract,
and, accordingly, to the extent TWComm is offering Services, and AT&T is
purchasing Services under this Agreement, TWComm and AT&T shall be making such
offers and purchases, respectively, as carriers.
23.B Prior to TWComm's offer or provision of any Service, TWComm shall file with
all appropriate regulatory authorities and have in effect any legally required
tariffs (or lawful substitutes therefor) (the "Tariffs") under which AT&T may
purchase such Service consistent with the terms and conditions, including
prices, of this Agreement and the applicable MSA Schedules. TWComm shall not
file any Tariff until AT&T has had the opportunity to review such Tariff and
confirm in writing to TWComm that such Tariff reflects the material terms and
conditions, including prices, of the Agreement and the applicable MSA Schedules.
23.C Subject to Section 23.F, and in accordance with Section 23.D, during the
term of this Agreement, TWComm shall promptly file with the appropriate
regulatory authorities revisions to the Tariffs:
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23.C.i necessary to extend Service to additional Selected MSAs or Optional
Serving Areas where TWComm chooses to offer such Services to AT&T under
this Agreement, to effectuate rate adjustments or credits required under
the terms of this Agreement, to offer New Services, and otherwise to
implement the provisions of this Agreement; or
23.C.ii necessary to incorporate the substance of any untariffed provision
of this Agreement which either party reasonably determines may be
unenforceable unless tariffed; or
23.C.iii as the parties may otherwise agree.
23.D Except where required by applicable law or regulatory authority, TWComm
shall not file any revisions to any of the Tariffs that alter the material terms
and conditions, including prices, of this Agreement and any applicable MSA
Schedule without AT&T's prior written approval of such revisions, which approval
shall not be unreasonably withheld.
23.E TWComm shall take all prudent steps reasonably available to ensure that the
Tariffs, and any revisions to such tariffs filed pursuant to Section 23.0, take
effect as soon after filing as is possible.
23.F Except as otherwise expressly required by Section 23.0 or where required
by applicable law or regulatory authority, TWComm shall not file any
tariff, substitute tariff, or any revision thereto that:
23.F.i modifies or seeks to modify in any material respect a Tariff filed
pursuant to Section 23.B, as it applies to AT&T; or
23.F.ii modifies or seeks to modify any material terms and conditions,
including prices, with respect to any Services offered under this
Agreement to AT&T.
23.G If TWComm is required by applicable law or regulatory authority to file any
revision to its Tariffs which materially adversely affects the terms,
conditions, or prices of this Agreement to AT&T, then AT&T may terminate the
entire Agreement or MSA Schedule as applicable pursuant to Section 31 or 32 of
this Agreement.
23.H TWComm agrees that, in the event of any breach by TWComm of its obligations
under Sections 23.B through 23.D and Section 23.F of this Agreement, TWComm will
file such revisions to the Tariffs, tariff substitutes, and/or contract-based
tariff as needed to cure the breach, and to take all prudent steps reasonably
available to ensure that such revisions take effect.
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23.1 Where AT&T is required to approve or confirm any Tariff filing, such
approval or confirmation shall not be unreasonably withheld or delayed. AT&T
shall use reasonable efforts to respond to any requests for approval or
confirmation within a reasonable time period requested by TWComm. Where AT&T has
not responded in writing to a request of TWComm for such approval or
confirmation within a reasonable period of time following TWComm's request
(which writing shall include a detailed description of AT&T's objections to a
proposed filing, if applicable), TWComm shall be entitled to proceed with its
filing notwithstanding the requirements of Sections 23.B and 23.D of this
Agreement.
23.J TWComm shall provide to AT&T a courtesy copy of every Tariff and revision
thereof filed pursuant to this Agreement not later than the date of filing.
24. Detariffing
24.A In the event that any of the Services are detariffed by regulating
authorities, such detariffed Services shall thereafter be offered and provided
to AT&T pursuant to this Agreement, rather than pursuant to any Tariff, within
the jurisdictions of such regulating authorities.
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PART VII: Assignment, Delegation, and Subcontracting
25. Basis for Selection of TWComm
25.A AT&T has elected to enter into this Agreement on the basis of TWComm's
representations concerning the capabilities and resources of TWComm, and the
expertise and experience of TWComm's management and employees. Accordingly,
TWComm shall not delegate, assign, subcontract, or otherwise transfer any of its
duties, obligations, rights, payments, or privileges in connection with this
Agreement except in conformance with the requirements set forth in this Part
VII.
26. Delegation or Assignment by TWComm
26.A Other than as set forth in this Section 26, TWComm shall not assign or
delegate this Agreement (or any rights, payments, privileges, duties, or
obligations under this Agreement) without the prior written consent of AT&T,
which shall not be unreasonably withheld or delayed. Absent AT&T's written
consent, any such attempted assignment by TWComm shall be null and void.
26.B Notwithstanding the foregoing, TWComm shall be entitled to assign or
delegate the Agreement or any MSA Schedule in accordance with the following:
26.B.i TWComm may delegate its obligations to provision, manage and
operate the Network over which Services will be provided, and to offer and
provide Services, to entities (which shall thereupon become Local
Entities) pursuant to MSA Schedules that have been executed by AT&T, in
accordance with Section 4 of this Agreement.
26.B.ii TWComm or a Local Entity may assign and delegate its rights and
obligations under this Agreement or any MSA Schedule to any entities, the
management of which is vested directly or indirectly in, and the
outstanding equity interests in which are entirely owned, directly or
indirectly, by any one or more of Time Warner Entertainment Company, L.P.,
Time Warner Entertainment-Advance/Xxxxxxxx Partnership, and Time Warner
Inc.; and, with respect to the assignment or delegation of the entire
Agreement, provided that the net worth of such successor entity (or a
guarantor of its obligations under this Agreement) is no less than the net
worth of TWComm.
26.B.iii TWComm or a Local Entity may assign and delegate all the rights
and obligations of the Local Entity under an MSA Schedule to a purchaser
or assignee of substantially all of the business and assets of the Local
Entity in an MSA, and such purchaser or assignee shall thereupon become a
Local Entity; provided that TWComm is managing
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the telephony operations of such Local Entity in accordance with a
management agreement to be entered into and provided to AT&T no later than
the date of such assignment and delegation.
26.C If TWComm elects to assign or delegate this Agreement or a MSA Schedule
under this Section 26, TWComm shall notify AT&T no later than one business day
of a public announcement of the transaction which would effect the delegation or
assignment, or one business day following the actual assignment or delegation,
whichever occurs first.
26.D With respect to an assignment or delegation pursuant to Section 26.B.iii,
AT&T may elect to terminate the applicable MSA Schedule and enter a Transition
Period as described in Section 32.C.
27. Subcontracting by TWComm
27.A TWComm shall not subcontract any of its duties and obligations under this
Agreement regarding work to be performed within or around any Served Premises
(including, without limitation, any work associated with network deployment,
service delivery, and quality control) to any entity without obtaining AT&T's
prior written consent to the specific subcontractors, subject to and in
accordance with the following:
27.A.i TWComm shall identify its anticipated subcontractors and the
general types of work that may be performed by them in the applicable MSA
Schedule ("Subcontractor List"). AT&T's execution of the MSA Schedule
shall constitute AT&T's consent to TWComm's use of any subcontractor on
the Subcontractor List for any project of the designated function or type,
whether subcontracted at the MSA Schedule Effective Date or thereafter.
27.A.ii At any time after the execution of a MSA Schedule, TWComm may make
a written request to AT&T to add a subcontractor or replace a
subcontractor identified on the Subcontractor List. AT&T shall have 15
days from the receipt of such a request to provide its consent in writing.
If AT&T fails to respond to such request within 15 days, such
subcontractor shall be deemed approved and shall be added to the
Subcontractor List.
27.A.iii AT&T's consent to a proposed subcontractor shall not be
unreasonably withheld (subject, however, to Section 27.C of this
Agreement). If AT&T rejects a subcontractor proposed by TWComm, AT&T must
specify the grounds for such rejection in writing.
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27.A.iv The requirement for AT&T consent set forth in this Section 27
shall not apply to any subcontractor that is a TW System (as defined in
Appendix E-1 of this Agreement).
27.B In addition to providing the Subcontractor List, within 60 days after an
MSA Schedule's Effective Date and annually afterwards on the anniversary of such
MSA Schedule Effective Date, TWComm shall provide AT&T with a then current
complete list of all primary construction and billing subcontractors under this
Agreement which are not performing work within or around any Served Premises.
TWComm shall also specify the general type of work that such subcontractors are
performing. AT&T's prior consent is not required for TWComm's use of such
subcontractors. However, such subcontractors must comply with Section 27.C to
the extent applicable.
27.C All subcontractors performing work under this Agreement pursuant to
Sections 27.A and 27.B must execute a nondisclosure agreement satisfactory to
AT&T prior to receipt from TWComm of any AT&T "Information" as defined in
Section 41 of this Agreement.
28. Single Point of Contact
28.A Notwithstanding the provision of Services by the Local Entities pursuant to
any MSA Schedules, TWComm will make available a single point of contact
dedicated to AT&T with respect to each major function described herein,
including without limitation contracting, contract administration, price
adjustment, order processing, Service delivery, Service maintenance, quality
control, and billing. TWComm will notify AT&T from time to time of the person or
persons to whom inquiries in such areas should be addressed.
28.B AT&T will utilize TWComm as its single point of contact(s) pursuant to
Section 28.A, provided, with respect to Service delivery issues, AT&T may, in
its discretion, deal directly with the Local Entity.
28.C AT&T will identify a lead manager and supporting resources that will
provide ongoing planning and support for any AT&T purchases from TWComm.
However, AT&T shall not be obligated to identify or provide a lead manager and
supporting resources if:
28.C.i a Special Control Event, as defined in Section 30, occurs with
respect to TWComm and is not waived by AT&T; or
28.C.ii TWComm does not achieve Satisfactory Performance, as defined in
Appendix K, on a national level.
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29. Delegation or Assignment by AT&T
29.A AT&T shall not assign or delegate this Agreement (or any rights, payments,
privileges, duties, or obligations under this Agreement) without the prior
written consent of TWComm, which shall not be unreasonably withheld or delayed.
Absent TWComm's written consent, any attempted assignment by AT&T shall be null
and void; provided, however, that AT&T shall have the right to make such
delegation or assignment to any entity that is majority owned by AT&T and
entirely managed (directly or indirectly) by AT&T without obtaining TWComm's
consent.
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PART VIII: Additional Terms and Conditions
30. Special Control Event
30.A In the event that any "IXC" (as defined in Section 30.B) obtains special
management rights or control, as set forth in this Section 30 (a "Special
Control Event"), of TWComm or a Local Entity, AT&T may elect the options set
forth in Sections 30.E and 30.F, as applicable. It is agreed that neither TWComm
nor the Local Entity shall be considered in breach of this Agreement or the
applicable MSA Schedule by virtue of any Special Control Event, but only that
AT&T shall have the rights specified in this Section 30.
30.B For purposes of this Section 30, "IXC" shall mean any entity that is a
common carrier of wireline interexchange telecommunications services (excluding
"local service," "incidental transactions," and any "content services," (as
these terms are defined below) in a Selected MSA, or the "controlled affiliates"
(as defined in Section 30.I below) of such an entity. In no event shall US WEST
or its affiliates be deemed an IXC under this Section 30.B.
30.C A Special Control Event shall be deemed to have occurred if at any time:
30.C.i an IXC has become the owner of at least 5% of the outstanding
voting equity of TWComm or any Local Entity, or of any controlled
affiliate of Time Warner Inc. that directly or indirectly controls TWComm
or any Local Entity (a "Controlling Entity") that is not a publicly held
entity;
30.C.ii an IXC has become the owner of voting equity representing at least
5% of the outstanding voting equity of Time Warner Inc. or any other
publicly held entity, provided that such other entity is also a
Controlling Entity (a "Public Controlling Entity"), and the management or
governing body of such Public Controlling Entity has granted to such IXC
any rights with respect to the governance or conduct of the business of
such Public Controlling Entity that are not possessed generally by the
owners of such a voting equity interest of the Public Controlling Entity;
30.C.iii an IXO has become the owner of voting equity representing at
least 15% of the outstanding voting equity of a Public Controlling Entity,
and the management or governing board of such Public Controlling Entity
has approved or consented to such IXC ownership; or
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30.C.iv an IXC has become the owner of voting equity representing at least
25% of the outstanding voting equity of a Public Controlling Entity.
30.D Subject to Section 30.G of this Agreement, if any entity that previously
obtained ownership of voting equity as described in Section 30.C.i through
30.C.iv thereafter becomes an IXC, then a Special Control Event shall be deemed
to have occurred.
30.E If a Special Control Event has occurred with regard to TWComm, then AT&T
shall elect (i) to terminate this Agreement and to enter into a Transition
Period with respect to all Selected MSAs pursuant to Section 31 of this
Agreement, (in which event, AT&T shall be relieved of its obligations specified
in Sections 16.E and 28.C with respect to all Selected MSAs); or (ii) to waive
any Special Control Event with regard to such IXC.
30.F If a Special Control Event has occurred only with regard to a Local Entity,
then AT&T shall elect (i) to terminate the MSA Schedule and to enter into a
Transition Period with respect to the applicable Selected MSA, (in which event,
AT&T shall be relieved of its obligation specified in Section 16.E with respect
to such Selected MSA); or (ii) to waive any Special Control Event with regard to
such IXC.
30.G A Special Control Event will only occur (1) as a result of an acquisition
of interest by a third party IXC (i.e., the IXC is not affiliated with Time
Warner Inc. as of the Effective Date of this Agreement) as described above (or a
change in the status of such an acquirer as described in Section 30.D); or (2)
if TWComm, Time Warner Inc., a Local Entity, or a Controlling Entity offers
interLATA telecommunications services (excluding local service, incidental
transactions and any content services, and further excluding any interLATA
service that TWComm or its affiliates are permitted to provide under the MFJ
Waiver (as defined below) as of the Effective Date of this Agreement), as an
IXC, to business telephone service customers in a Selected MSA; provided,
however, that TWComm, Time Warner Inc., a Local Entity, or a Controlling Entity
will not otherwise be deemed IXCs due to any change in regulatory status or
internal development of their respective business after the Effective Date of
this Agreement or applicable MSA Schedule.
30.G.i The "MFJ Waiver" shall mean that certain order filed October 24,
1994, in United States v. Western Electric Company et al., Civil Action
No. 82-192, relating to the activities of Time Warner Entertainment
Company, L.P.
30.H. If a Special Control Event occurs with respect to TWComm or a Local
Entity, TWComm shall provide to AT&T a notice thereof no later than one
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business day following a public announcement of the transaction which would
effect the Special Control Event, or one business day following the actual
Special Control Event, whichever occurs first.
30.I For purposes of this Section 30:
30.I.i "local service" means telecommunications service within a local
calling area for which no long distance toll applies;
30.I.ii "incidental transactions" shall mean any privately negotiated
transactions for the provision of facilities, capacity, transport or
telecommunications services that are not offered to customers in the
ordinary course of the entity's business;
30.I.iii "content services" shall include all information or content-based
services, including without limitation cable television services;
30.I.iv a "controlled affiliate" of a specified party means an entity
controlled, directly or indirectly, by such specified party.
30.I.v "control" means the possession of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
31. Termination of the Agreement
31.A Special Control Event. AT&T may elect to terminate this entire Agreement,
including all MSA Schedules then in effect, if a Special Control Event occurs
with respect to TWComm, provided that AT&T makes such an election within 90
days of AT&T's receipt of TWComm's notice pursuant to Section 30.H.
31.A.i A Transition Period (as described in Appendix E-6) with respect to
each Selected MSA shall begin to run on the date that TWComm receives
notice of AT&T's election to terminate the Agreement pursuant to this
Section 31.A.
31.B AT&T's Failure to Cure Material Breach. TWComm may elect to terminate this
Agreement, and all MSA Schedules then in effect, upon AT&T's failure to cure a
material breach hereunder within 120 days after written notice thereof from
TWComm.
31.B.i AT&T may take up to two years from the date it receives TWComm's
notice of termination under this Section 31.B to continue purchasing
existing Services (while making payments in accordance with Appendix G-1
and G-2), under the terms, conditions, and pricing principles of this
Agreement while it transitions such Services to another
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supplier. Such period, under this Section 31.B, shall not constitute a
Transition Period.
31.C Change in TWComm's Financial Condition. AT&T may elect to terminate this
entire Agreement if the then current "senior debt rating," as published by
Standard & Poor's, for Time Warner Entertainment Company, L.P. is "CCC" or lower
and the then "bond" rating, as published by Moody's Investors Services for Time
Warner Entertainment Company, L.P. is "B2" or lower (provided that if either
such rating service ceases to publish ratings for Time Warner Entertainment
Company, L.P., the parties will mutually select an alternative rating service,
and such alternative rating service's rating most nearly equivalent to the
foregoing ratings shall be substituted herein).
31.C.i A Transition Period with respect to each Selected MSA shall begin
to run on the date that TWComm receives notice of AT&T's election to
terminate this Agreement pursuant to this Section 31.C.
31.D Certain Regulatory Events.
31.D.i AT&T may elect to terminate this entire Agreement, including all
MSA Schedules then in effect, if TWComm is required by applicable law or
regulatory authority to file any revision to its Tariffs that materially
adversely affects the terms, conditions, or prices of this Agreement to
AT&T, provided AT&T must make such an election within 90 days of such
Tariff modification.
31.D.ii TWComm may elect to terminate this entire Agreement, including all
MSA Schedules then in effect, in accordance with Section 48.D of this
Agreement, due to the imposition of certain adverse regulatory
requirements described therein, if all Selected MSAs have been adversely
affected thereby.
31.D.iii A Transition Period (as described in Appendix E-6) with respect
to each Selected MSA shall begin to run on the date that either party
receives notice of the other party's election to terminate this Agreement
pursuant to this Section 31.D.
31.E Termination of all MSA Schedules. Unless AT&T and TWComm otherwise mutually
agree, if all MSA Schedules are terminated as a result of any or all of the
events set forth in Section 32 of this Agreement, this Agreement shall
automatically terminate at the expiration of the Transition Period (if any)
which commenced with respect to the final terminated MSA Schedule. If this
Agreement so terminates while a two-year period described in Section 31.B.i or
32.H.i is in effect, the terms, conditions and pricing principles of this
Agreement
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shall survive to the extent necessary to effect any such provision, until the
end of the last such two-year period.
32. Termination of a MSA Schedule
32.A Special Control Event. AT&T may elect to terminate a MSA Schedule if a
Special Control Event occurs with respect to the applicable Local Entity;
provided that AT&T makes such an election within 90 days of AT&T's receipt of
TWComm's notice pursuant to Section 30.H.
32.A.i A Transition Period with respect to such Selected MSA shall begin
to run on the date that TWComm receives notice of AT&T's election to
terminate such MSA Schedule pursuant to this Section 32.A.
32.A.iii After the expiration of such Transition Period, the applicable
MSA Volume Targets (as defined in Appendix E-6) shall not apply toward the
National Volume Target (as defined in Appendix E-6).
32.6 Change in Ownership of a Local Entity. Either AT&T (unless TWComm has
complied with Section 26.B of this Agreement) or TWComm may elect to terminate a
MSA Schedule if there is a change in ownership of a Local Entity, as defined in
Sections 32.B.i and 32.B.ii below, provided that such election is made (1) no
later than 30 days after the change in ownership, in the case of TWComm, or (2)
within 90 days after AT&T's receipt of notice of the change in ownership that
has occurred or shall occur, in the case of AT&T; also provided that TWComm
shall notify AT&T of such change in ownership no later than one business day
following a public announcement of the transaction which would effect the
ownership change, or one business day following the actual ownership change,
whichever occurs first.
32.B.i If (1) the Local Entity transfers all or substantially all of its
assets to, or merges or consolidates with an entity that is substantially
different in direct or indirect ownership of its equity securities from
the Local Entity itself as of the MSA Schedule Effective Date; or (2)
direct or indirect ownership of the equity securities of the Local Entity
is substantially different than it was on the MSA Schedule Effective Date.
32.B.ii The successor entity, or the original Local Entity following such
a transfer of its securities, as the case may be, shall be deemed
"substantially different" from the Local Entity on the MSA Schedule
Effective Date in accordance with the following:
32.B.ii.(a) If the Local Entity itself on the MSA Schedule Effective
Date was an entity (1) managed by TWComm, and (2) the outstanding
voting equity interests of which are at least 50%
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owned, directly or indirectly, by any one or more of Time Warner
Entertainment Company, L.P., Time Warner Entertainment -
Advance/Xxxxxxxx Partnership and Time Warner Inc., then there will
be no substantial difference if the foregoing conditions (1) and (2)
continue to be met, and TWComm is willing to provide to AT&T the
assurance of performance described in Section 4.B.
32.B.ii.(b) In all other cases other than Section 32.B.ii.(a), any
entity that differs in the beneficial ownership of outstanding
equity securities from the Local Entity as of the MSA Schedule
Effective Date by more than 5% shall be deemed substantially
different.
32.B.iii A Transition Period with respect to such Selected MSA shall begin
to run on the date that TWComm or AT&T receives notice of the other
party's election to terminate such MSA Schedule pursuant to this Section
32.B.
32.B.iv After the expiration of such Transition Period, the applicable MSA
Volume Targets shall not apply toward the National Volume Target.
32.C TWComm's Assignment or Delegation to Certain Entities. AT&T may elect to
terminate a MSA Schedule if TWComm or Local Entity has assigned the rights and
obligations of the Local Entity to another entity pursuant to Section 26.B.iii
of this Agreement, provided that AT&T makes such election within 90 days of
AT&T's receipt of a management agreement between TWComm and the purchaser or
assignee, to be entered into no later than the date of such assignment or
delegation, also provided, that TWComm or Local Entity has provided AT&T with
appropriate notice under this Agreement.
32.C.i A Transition Period with respect to such Selected MSA shall begin
to run on the date that TWComm receives notice of AT&T's election to
terminate such MSA Schedule pursuant to this Section 32.C.
32.C.ii After the expiration of such Transition Period, the applicable MSA
Volume Targets shall not apply toward the National Volume Target.
32.D Certain Regulatory Events.
32.D.i AT&T may elect to terminate the applicable MSA Schedule, if TWComm
is required by applicable law or regulatory authority to file any revision
to the applicable Tariffs that materially adversely affects the terms,
conditions, or prices of this Agreement to AT&T, provided that AT&T must
make such election within 90 days of such Tariff modification.
32.D.ii TWComm may elect to terminate the applicable MSA Schedule in
accordance with Section 48.D of this Agreement, due to the imposition of
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certain adverse regulatory requirements described therein that have
materially adversely affected such Selected MSA.
32.D.iii A Transition Period (as described in Appendix E-6) with respect
to such Selected MSA shall begin to run on the date that either party
receives notice of the other party's election to terminate the applicable
MSA Schedule pursuant to this Section 32.D.
32.E Ramp-Up Period for Dedicated Services Has Not Commenced in at Least Half of
the Expected Serving Areas. TWComm may elect to terminate a MSA Schedule if one
year from the later of (1) the date that Dedicated Services are first offered
within such Selected MSA, or (2) the Effective Date of the applicable MSA
Schedule, the Dedicated Ramp-Up Period has not commenced in at least one-half of
the Expected Serving Areas.
32.E.i A Transition Period with respect to such Selected MSA shall begin
to run on the date that AT&T receives notice of TWComm's election to
terminate such MSA Schedule pursuant to this Section 32.E.
32.E.ii After the expiration of such Transition Period, the applicable MSA
Volume Targets shall not apply toward the National Volume Target.
32.F AT&T's Application of Remedies for Over Twelve Consecutive Months. TWComm
may elect to terminate a MSA Schedule if AT&T has invoked Remedies (as defined
in Appendix E-6) with respect to such Selected MSA for at least twelve
consecutive months; provided that TWComm and AT&T have not otherwise mutually
agreed to a date upon which such Remedies shall cease.
32.F.i A Transition Period with respect to such Selected MSA shall begin
to run on the date that AT&T receives notice of TWComm's election to
terminate such MSA Schedule pursuant to this Section 32.F.
32.F.ii After the expiration of such Transition Period, the applicable MSA
Volume Targets shall not apply toward the National Volume Target.
32.G No Price Agreed Upon After the Detariffing of LEC Similar Service. With
regard to the detariffing of a LEC Similar Service, AT&T may elect to terminate
a MSA Schedule if, pursuant to Section 10.C of this Agreement, AT&T and TWComm
do not mutually agree to the Price for the applicable Service within 60 days
after written notice from AT&T to TWComm requesting a price adjustment.
32.G.i A Transition Period with respect to such Selected MSA shall begin
to run on the date that TWComm receives notice of AT&T's election to
terminate such MSA Schedule pursuant to this Section 32.F.
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32.G.ii After the expiration of such Transition Period, the applicable MSA
Volume Targets shall not apply toward the National Volume Target.
32.H AT&T's Failure to Cure Material Breach. TWComm may elect to terminate a MSA
Schedule, upon AT&T's failure to cure a material breach with respect to such MSA
Schedule within 90 days after written notice thereof from TWComm.
32.H.i AT&T may take up to two years from the date it receives TWComm's
notice of termination under this Section 32.H to continue purchasing
existing Services (while making payments in accordance with Appendix G-1
and G-2), under the terms, conditions, and pricing principles of this
Agreement while its transitions such Services to another supplier. Such
period, under this Section 32.H, shall not constitute a Transition Period.
32.H.ii On the date of termination of a MSA Schedule under this Section
32.H, any Expected Serving Area that would be deemed to have met the
applicable Preconditions if not for the termination of the MSA Schedule
shall begin its respective Ramp-Up Period. The Ramp-Up Schedule for all
Expected Serving Areas within a Ramp-Up Period shall continue to progress
until each has reached its Plateau Period. Accordingly, the MSA Volume
Targets for a MSA terminated pursuant to this Section 32.H shall continue
to be applied towards the National Volume Target for the term of this
Agreement.
33. Continuity of Service
33.A TWComm and each Local Entity agree that once specific Services (i.e.,
specific circuits or lines to a customer) are provided to AT&T under this
Agreement, TWComm shall continue to provide all such specific Services to AT&T
until TWComm receives a request from AT&T to disconnect such Services, or until
such time as this Agreement or the applicable MSA Schedule is terminated
pursuant to Sections 31 or 32 of this Agreement.
33.B. TWComm agrees that once a certain Service Product is generally offered to
AT&T throughout an Expected Serving Area and AT&T is purchasing that Service
Product under this Agreement in that Expected Serving Area, the continued
general offering of such Service Product throughout such Expected Serving Area
shall be a Precondition or Ongoing Condition, as the case may be.
33.C. If, for any reason, AT&T elects to transition certain Services to another
supplier, TWComm shall cooperate with AT&T in good faith to effect such a
transition in an orderly manner.
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33.D TWComm will give AT&T written notice prior to discontinuing its general
offering of any Service hereunder for any reason.
34. No Commitment
34.A Notwithstanding the pricing mechanisms of this Agreement in which AT&T's
achievement of Volume Targets determine in part the Price received by AT&T, such
Volume Targets serve only such limited purpose and shall not constitute, or be
construed as, a commitment on the part of AT&T to actually purchase such volumes
of Services. Accordingly, AT&T shall not be liable to TWComm for any penalty,
true-up, credit, lump sum payments, or any other remedies (other than a possible
adjustment in Discounts received, as set forth in Appendix E-6) if AT&T does not
achieve such Volume Targets. Notwithstanding any other provision of this
Agreement, except for (1) the 30-day minimum term of Service specified in
Section E-1.2.C of Appendix E-1,(2) the provisions of Section E-4.3.C of
Appendix E-4, and (3) the provisions of Addendum 1, *
35. No Consequential Damages
35.A NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, NEITHER AT&T NOR TWCOMM
NOR ANY LOCAL ENTITY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING WITHOUT
LIMITATION ANY DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS,
OR LOST PROFITS (COLLECTIVELY "SPECIAL DAMAGES")), REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING
WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE, AND
REGARDLESS OF WHETHER THE PARTY KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD
RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY (AND SUCH OTHER PARTY'S
SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND SUPPLIERS) FROM ANY SUCH CLAIM.
35.B THE AMOUNT OF ANY DAMAGES PAID BY AT&T TO A THIRD PARTY THAT ARE EQUAL TO
OR LESS THAN THE LIMITATION ON LIABILITY UNDER SECTION 2.4.1.A OF ITS FEDERAL
COMMUNICATIONS COMMISSION TARIFF NO. 11, AS IN EFFECT ON THE EFFECTIVE DATE OF
THIS AGREEMENT (WHICH SECTION IS QUOTED IN SECTION 35.B.i BELOW), IF AT&T
REASONABLY DETERMINES THAT IT IS REQUIRED TO PAY SUCH DAMAGES UNDER APPLICABLE
LAW OR TARIFF, SHALL NEVERTHELESS BE DEEMED DIRECT DAMAGES AND SHALL NOT BE
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DEEMED SPECIAL DAMAGES OR BE SUBJECT TO THE LIMITATIONS OF SECTION 35.A. ALL
OTHER SPECIAL DAMAGES PAID BY AT&T TO A THIRD PARTY SHALL BE DEEMED SPECIAL
DAMAGES THAT ARE SUBJECT TO THE FOREGOING LIMITATION ON LIABILITY AND SHALL NOT
BE RECOVERABLE FROM TWCOMM.
35.B.i Section 2.4.1.A of AT&T's Federal Communications Commission Tariff
No. 11 as of the Effective Date of this Agreement reads as follows:
2.4.1. Liability
A. ...With respect to any other claim or suit, by a Customer or by any
others, for damages associated with the installation, provision,
termination, maintenance, repair or restoration of a local channel
service, and subject to the provisions of B. through F. following
[exclusions, exceptions and conditions], AT&T's liability, if any, shall
not exceed an amount equal to the proportionate charge provided for under
this tariff for the local channel service for the period during which the
condition(s) giving rise to the claim or suit arose. This liability for
damages shall be in addition to any amounts that may otherwise be due the
Customer under this tariff as a Credit Allowance for Interruptions (see
Credit Allowances for Interruptions, Page 45).
36. Nonexclusive Remedies
36.A Except as otherwise expressly provided in this Agreement, each of the
remedies provided under this Agreement is cumulative and is in addition to any
remedies that may be available at law or in equity.
37. No Third Party Beneficiaries
37.A This Agreement does not provide and is not intended to provide third
parties with any remedy, claim, liability, reimbursement, cause of action, or
other privilege.
38. Force Majeure
38.A Except as otherwise expressly provided in this Agreement, neither party
shall be liable for any delay or failure of performance resulting from any cause
beyond such party's reasonable control and not from its fault or negligence,
including without limitation the elements; unusually severe weather conditions;
lightning; earthquakes; floods; pest damage; power surges, fluctuations, or
failures; nuclear accidents; strikes or labor disputes; water; acts of God;
epidemics; war, terrorist acts, riots, insurrections, and civil disturbances;
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government regulations; acts of civil or military authorities, or the public
enemy; and fuel or energy shortages (collectively "Force Majeure").
39. Alternative Dispute Resolution
39.A Disputes between AT&T and TWComm that arise out of this Agreement shall be
resolved pursuant to the Alternative Dispute Resolution ("ADR") procedures set
forth in Appendix L of this Agreement. Such ADR procedures are designed to
enable the parties to resolve their disputes in an expeditious manner without
resort to courts.
40. Not a Joint Venture
40.A This Agreement is intended to establish a relationship of supplier and
customer between TWComm and AT&T. The undertakings described in this Agreement
shall not be deemed to constitute a joint venture or partnership between TWComm
and AT&T.
41. Confidentiality and Proprietary Information
41.A In connection with this Agreement, either AT&T, on the one hand, or TWComm
and/or a Local Entity, on the other hand, may furnish to the other certain
information that is marked or otherwise specifically identified as proprietary
or confidential ("Information"). This Information may include, among other
things, documentation, data, drawings, specifications, plans, and other
technical or business information. The term "Information" shall not be deemed to
include the existence or contents of this Agreement, which shall nonetheless be
kept confidential in accordance with this Section 41. For purposes of this
Section 41, the party that discloses Information is referred to as the
Disclosing Party, and the party that receives Information is referred to as the
Receiving Party.
41.B When Information is furnished in tangible form, the Disclosing Party shall
xxxx it as proprietary or confidential. When Information is provided orally, the
Disclosing Party shall, at the time of disclosure or promptly thereafter,
identify the Information as being proprietary or confidential.
41.C With respect to Information disclosed under this Agreement, and except as
otherwise provided for in Paragraph 4 of the Amended and Restated Joint
Non-Disclosure Agreement dated July 20, 1993, between AT&T, Time Warner, Inc.
and US WEST, Inc. (The "Original Nondisclosure Agreement") which shall survive
the execution hereof, the Receiving Party shall:
41.C.i hold the Information in confidence, exercising a degree of care not
less than the care used by the Receiving Party to protect its own
proprietary or confidential information that it does not wish to disclose;
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41.C.ii restrict disclosure of the Information solely to those of its
employees, officers, directors, and attorneys who have a need to know in
connection with the performance or enforcement of this Agreement, and not
disclose the Information to any other person or entity without the prior
written consent of the Disclosing Party;
41.C.iii advise those employees, officers, directors, and attorneys of
their obligations with respect to the Information; and
41.C.iv use the Information only in connection with the performance or
enforcement of this Agreement, except as the Disclosing Party may
otherwise agree in writing.
41.C.v It is understood that TWComm, as a Receiving Party, may make
disclosures of Information to (1) its affiliates that are proposed as
Local Entities, or to a TW System, but only to the extent such entities
have a need to know the Information in order to provide or assist in
providing Services under this Agreement and that such parties agree to
maintain the Information in confidence in accordance with the terms
hereof; (2) to the parties to the Original Nondisclosure Agreement
authorized to receive such Information, but only to the extent such
entities have a need to know the Information in order to approve this
Agreement or any amendment hereto or modification hereof, provided that
such entities have agreed in writing to maintain the Information in
confidence in accordance with the terms of the Original Nondisclosure
Agreement.
41.D Information shall be deemed the property of the Disclosing Party. Upon
request of the Disclosing Party, the Receiving Party shall return all
Information received in tangible form, or shall destroy it and provide written
certification of destruction to the Disclosing Party. If the Receiving Party
loses or makes an unauthorized disclosure of Information, it shall notify the
Disclosing Party and use reasonable efforts to retrieve the Information.
41.E The Receiving Party shall have no obligation to preserve the proprietary
nature of Information which:
41.E.i was previously known to the Receiving Party free of any obligation
to keep it confidential; or
41.E.ii is or becomes publicly available by means other than unauthorized
disclosure; or
41.E.iii is developed by or on behalf of the Receiving Party independently
of any Information furnished under this Agreement; or
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41.E.iv is received from a third party whose disclosure does not violate
any confidentiality obligation.
41.F In the event that the Receiving Party needs, for securities law purposes,
to make disclosures of Information to lawfully proceed with other transactions
or to comply with such applicable law or the rules of a stock exchange or
association on which such Party's securities are listed, the Receiving Party
shall provide the Disclosing Party with prompt written notice prior to making
any such disclosure so that the Disclosing Party can work with the Receiving
Party to limit the disclosure to the greatest extent possible consistent with
legal obligation, including requiring the execution of any non-disclosure
agreements reasonably deemed appropriate by the Disclosing Party, subject,
however, to the provisions of Section 41.G.
41.G All information that may be disclosed to TWComm pertaining to the
identities, locations, and requirements of AT&T's customers, are Information of
AT&T. Notwithstanding Section 41.F, under no circumstances shall TWComm or a
Local Entity or a party described in Section 41.C.v.(1) disclose AT&T's customer
Information to any third party (even if under contract to TWComm), or to any of
their personnel, responsible for publicity or for end user sales or marketing.
However, TWComm's or a Local Entity's personnel dedicated to sales or marketing
of Services to AT&T may receive such customer Information for the sole purpose
of providing such sales or marketing to AT&T.
41.H In the event that the Receiving Party becomes legally compelled (by oral
questions, interrogatories, requests for information or documents, subpoenas,
civil investigative demands or otherwise) to disclose any Information, the
Receiving Party shall provide the Disclosing Party with prompt written notice
prior to the disclosure of such Information so that the Disclosing Party may
seek appropriate confidentiality agreements, a protective order or other
appropriate remedy, or waive compliance with the provisions of this Section 41.
In the event that the Disclosing Party is unable to obtain a protective order or
other appropriate remedy, or if the Disclosing Party so directs, the Receiving
Party shall, and shall cause its employees to, exercise its reasonable best
efforts to obtain a protective order or other appropriate remedy at the
Disclosing Party's reasonable expense. Failing the entry of a protective order
or other appropriate remedy or receipt of a waiver hereunder, the Receiving
Party shall furnish only that portion of the Information which it is advised by
written opinion of its counsel is legally required to be furnished and shall
exercise its reasonable best efforts to obtain reliable assurance that
confidential treatment shall be accorded such Information.
41.I Except for any announcement agreed upon in writing by both parties pursuant
to Section 42.B, or the filing of Tariffs in accordance with Section 23, the
existence and contents of this Agreement and any MSA Schedule shall be
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kept in confidence by both parties in accordance with Section 41.C as though
they were Information; subject, however, to Sections 41.F and 41.H.
41.J Each party agrees that the Disclosing Party would be irreparably injured by
a breach of this Section 41 by the Receiving Party or its representatives and
that the Disclosing Party shall be entitled to equitable relief, including
injunctive relief and specific performance, in the event of any breach of the
provisions of this Section 41. Such remedies shall not be deemed to be the
exclusive remedies for a breach of this Section 41, but shall be in addition to
all other remedies available at law or in equity.
42. Publicity and Advertising
42.A Neither party shall publish or use any advertising, sales promotions, or
other publicity materials that use the other party's logo, trademarks, or
service marks without the prior written approval of the other party.
42.B AT&T and TWComm shall have the right to review and approve any publicity
materials, press releases, or other public statements by the other that refer to
such party and that describe any aspect of this Agreement. Each party agrees not
to issue any such publicity materials, press releases, or public statements
without the prior written approval of the other party.
42.C Nothing in this Agreement establishes a license for either party to use any
of the other party's brands, marks, or logos, and neither party shall do so,
without prior written approval of the other.
43. Governing Law
43.A This Agreement shall be governed by and interpreted in accordance with the
local laws of the State of New York, exclusive of its conflict of law
provisions.
44. No Waiver
44.A Failure of either party to enforce any right or remedy available to it
under this Agreement shall not be construed as a waiver of the right or remedy
with respect to any other breach or failure by the other party.
45. Unenforceable Provisions
45.A No provision of this Agreement shall be interpreted to require any unlawful
action by either party. If any section or clause of this Agreement is held to be
invalid or unenforceable, then the meaning of that section or clause shall be
construed so as to render it valid and enforceable to the extent feasible. If no
feasible interpretation would save the section or clause, it shall be severed
from this Agreement with respect to the matter in question, and the remainder of
the
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Agreement shall remain in full force and effect. However, in the event such
section or clause is an essential element of the Agreement, the parties shall
promptly negotiate a replacement that will achieve the intent of such
unenforceable section or clause to the extent permitted by law.
46. Notices
46.A Wherever this Agreement requires written notice, consent, or other
communication to the other party, such communication shall be given in writing
to the person and address for such notices set forth in Appendix M, or at such
other address as either party may hereafter designate in writing to the other.
Notices shall be effective as described in Appendix M.
47. Titles
47.A Titles to parts, sections, appendixes, tables, schedules, and the like are
used merely for convenience and shall not be taken as an interpretation of the
contents of those provisions or as an attempt to enlarge, limit, or define terms
covered by this Agreement.
48. Amendments
48.A Except as otherwise expressly provided in this Agreement or a MSA Schedule,
this Agreement and any MSA Schedule may be modified or amended only by written
agreement executed by authorized representatives of both TWComm and AT&T.
48.6 To the extent that this Agreement expressly authorizes unilateral
modification of certain Appendix material at the discretion of one party, such
party may effect the modification of the Appendix by giving written notice of
such modification to the other party, and mutual written agreement shall not be
required.
48.C The parties acknowledge that the pricing and terms of this Agreement are
based on many factors, including among others the current pricing and service
offerings of the LECs, which may substantially change over the term of the
Agreement. If either party believes that changes in such factors, outside the
party's control, that affect the underlying assumptions of this Agreement have
materially adversely affected the rights or obligations of such party under the
terms hereof, it may request an amendment to this Agreement consistent with the
original intent hereof. Each party acknowledges its obligation to address the
concerns of the other party and to negotiate in good faith and agree to
reasonable amendments (if appropriate) in such circumstances.
48.D The parties acknowledge that the terms and conditions of the Agreement
reflect the unique commercial requirements of the parties. In the event that
there
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Page 44 of 47
is a regulatory requirement for TWComm to make the Services available via
contract or tariff to third parties which are not similarly situated to AT&T, on
the same, or substantially the same, terms and conditions set forth in the
Agreement, and TWComm is materially adversely affected by such regulatory
requirement (despite TWComm's reasonable best efforts to avoid such requirement)
such that the performance of the Agreement or any MSA Schedule is uneconomic
(based on reasonable standards of economic return) for TWComm, then the parties
will use reasonable commercial efforts to renegotiate the terms and conditions
of Services provided hereunder, to avoid such materially adverse effect while
preserving the original intents of the parties as closely as practicable. If the
parties are unsuccessful in renegotiating such terms and conditions, TWComm may,
pursuant to Section 31.D or 32.D of the Agreement, terminate one or more MSA
Schedules for those Selected MSAs that have been materially adversely affected,
or the Agreement if all Selected MSAs have been materially adversely affected.
If TWComm chooses to offer the prices, terms, and conditions hereunder to third
parties that are not similarly situated to AT&T, without a regulatory
requirement to do so, or if TWComm becomes subject to a regulatory requirement
to offer the prices, terms, and conditions hereunder to a third party willing to
commit to purchase volumes at the target levels provided in all Selected MSAs,
this Section 48.D does not apply. (Nothing herein is intended to, or shall,
preclude TWComm from complying with any regulatory requirement regarding its
offering of Services to a third party.)
48.D.i For purposes of this Section 48.D, a third party will not be
considered similarly situated to AT&T unless such third party's own
service requirements are of comparable size and scope.
49. Joint and Several Liability
49.6 With respect to each Selected MSA, TWComm and the applicable Local Entity
shall be jointly and severally liable for any monetary damages awarded to AT&T
under this Agreement and the respective MSA Schedule.
50. Successors and Assigns
50.A This Agreement shall be binding upon, and shall inure to the benefit of,
the parties and their permitted successors and assigns. No succession or
assignment by TWComm or AT&T shall be permitted (even if by operation of law)
except in accordance with the requirements of Part VII.
51. Survival
51.A The obligations of the parties under Section 41, and all other obligations
which by their nature continue beyond the term of this Agreement, shall survive
the expiration or termination of this Agreement (or any part of it).
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52. Referenced Documents
52.A Whenever any provision of this Agreement refers to a technical reference,
technical publication, AT&T statement of requirements, or any publication of
telecommunications industry administrative, technical standards, or any other
document specifically incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition (including any amendments,
supplements, addenda, or successors) of such document that is in general effect,
and will include the most recent version or edition (including any amendments,
supplements, addenda, or successors) of each document incorporated by reference
in such a technical reference, technical publication, AT&T statement of
requirements, or publication of industry standards.
52.B Numerous provisions of this Agreement incorporate by reference documents,
publications, statements of requirements or similar statements that are
permitted to be unilaterally changed by AT&T in the future. These relate,
generally, to Service specifications, infrastructure requirements, Service
quality and similar matters. Notwithstanding any other provisions hereof, the
parties understand that TWComm's failure to comply with any such unilateral
requirements of AT&T ("Unilateral Requirements") shall not constitute a breach
hereunder, however "Remedies" under Appendix E-6 or remedies under Section 20
may apply. In addition, such remedies shall not be available to AT&T for any
failure by TWComm to comply with a Unilateral Requirement that has been changed
by AT&T after the Effective Date of this Agreement (a "Revised Unilateral
Requirement") unless TWComm has approved such Revised Unilateral Requirement in
writing, or:
52.B.i It is technically and economically reasonable for TWComm to comply
with such revised unilateral requirement; and
52.B.ii Such Revised Unilateral Requirement is generally required by AT&T
of its competitive access providers and at least one other access supplier
has successfully implemented the Revised Unilateral Requirement.
53. Incorporated Documents
53.A The annexed Appendixes A through M and Addendum 1 referred to in this
Agreement, listed in the List of Appendixes (behind the Table of Contents of
this Agreement) are hereby incorporated in and made part of this Agreement.
54. Entire Agreement
54.A This Agreement constitutes the entire agreement between TWComm and AT&T
with respect to the subject matter hereof. This Agreement supersedes the
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Page 46 of 46
January 9, 1995 Memorandum executed by TWComm and AT&T, and all other memoranda,
proposals, representations, statements, agreements, or understandings, whether
written or oral, made concerning such subject matter prior to mutual execution
hereof.
In witness whereof, the parties have executed this Agreement through their
authorized representatives.
TIME WARNER COMMUNICATIONS AT&T COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXX
----------------------------- -----------------------------
Signature Signature
XXXXXX X. XXXXXX XXXXXX X. XXXX
-------------------------------- --------------------------------
Name Name
President, Time Warner
Communications Holdings Inc.,
Managing General Partner of VP-Strategic Business
Time Warner Communications Development & Access Management
-------------------------------- --------------------------------
Title Title
September 29, 1995 October 4, 1995
-------------------------------- --------------------------------
Date Date
* Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
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APPENDIX C
Page 1 of 17
MODEL
--------------------------------------------------------------------------------
MSA SCHEDULE
FOR
[MSA NAME] MSA
between
TIME WARNER COMMUNICATIONS
AT&T COMMUNICATIONS, INC.
[LOCAL ENTITY]
Effective Date: MMMM dd, 199X
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APPENDIX C
Page 2 of 17
TABLE OF CONTENTS
Section Page
------- ----
1. Incorporation_______________________________________________________4
2. General_____________________________________________________________4
3. Transition to Agreement from Communications Services Agreement______4
4. TWComm to Serve as Local Entity's Agent_____________________________4
5. MSA Schedule Tables_________________________________________________5
6. Delegation of TWComm Obligations Under the Agreement________________5
7. Execution by the Parties____________________________________________7
Table
-----
1 LEC Exchange Areas Comprising This Selected MSA_____________________5
2 Services Offered____________________________________________________9
3 Initial Type I Locations___________________________________________10
4 Expected Serving Areas and Network Deployment Time Table___________11
5 Dedicated Services Anticipated Volume Targets______________________12
6 Switched Services Anticipated Volume Targets_______________________13
7 TWComm Subcontractors______________________________________________14
8 Local Calling Areas Comprising This Selected MSA___________________15
9 Taxes Applicable To This Selected MSA______________________________16
10 Other Agreements in Support of Local Entity's Activities
At AT&T Serving Offices____________________________________________17
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APPENDIX C
Page 3 of 17
--------------------------------------------------------------------------------
Selected MSA Name:
--------------------------------------------------------------------------------
MSA Schedule Effective Date:
--------------------------------------------------------------------------------
Local Entity:
--------------------------------------------------------------------------------
This MSA Schedule is entered into between TIME WARNER COMMUNICATIONS, a
Delaware General Partnership, having an office at 000 Xxxxxxxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000 ("TWComm"), the Local Entity identified above having
an office at ___________________________, and AT&T COMMUNICATIONS, INC., a
Delaware corporation, having an office at 32 Avenue of the Americas, Xxx Xxxx,
Xxx Xxxx 00000, on behalf of itself, the Interstate Division of AT&T Corp., a
New York corporation, and each of their interexchange company affiliates
(individually and collectively "AT&T').
Whereas, AT&T and TWComm entered into an agreement effective September 15,
1995 (the "Agreement") under which TWComm intends to offer certain business
telecommunications ("Service") to AT&T through Local Entities in certain MSAs
proposed by TWComm and agreed to by AT&T; and
Whereas, TWComm has proposed, and AT&T has agreed, to include [MSA NAME]
MSA as a Selected MSA under the Agreement (hereinafter referred to as "This
Selected MSA"); and
Whereas, TWComm has delegated, and Local Entity has agreed to assume, all
applicable obligations and responsibilities for offering and providing Services
in This Selected MSA in accordance with the terms and conditions of this MSA
Schedule, including those terms and conditions incorporated by reference from
the Agreement;
Now, therefore, in consideration of the foregoing premises and mutual
covenants of this MSA Schedule, TWComm, AT&T, and Local Entity agree as follows:
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APPENDIX C
Page 4 of 17
1. Incorporation
1.A When executed by authorized representatives of TWComm, AT&T, and Local
Entity, this MSA Schedule will become effective on the Effective Date stated
above, and will incorporate the applicable terms and conditions of the Agreement
executed between TWComm and AT&T on September 15, 1995, pursuant to Section 4 of
the Agreement.
2. General
2.A This MSA Schedule sets forth certain information required by the Agreement
which applies solely to This Selected MSA. The Local Entity's obligations
hereunder shall extend solely to This Selected MSA. Information, terms and
conditions listed herein are intended to supplement, and not replace or
supersede those set forth in the Agreement, unless expressly stated otherwise
within this MSA Schedule.
2.B Words and phrases spelled with initial capital letters (other than proper
names) are defined terms, definitions for which may be contained in this MSA
Schedule or elsewhere in the Agreement.
3. Transition to Agreement from Communications Services Agreement
3.A Upon the MSA Schedule Effective Date, the Communications Services Agreement
("CSA") for [CSA city], dated [CSA effective date], and all subsequent
amendments to the CSA, executed between Local Entity and AT&T, shall terminate
without further liability to either Local Entity or AT&T, and all Services
(tariffed or nontariffed) which were offered or provided to AT&T, and the
prices, terms and conditions governing existing Services under the CSA, shall be
replaced with the prices, terms and conditions herein, all in accordance with
Section 12 of the Agreement.
4. TWComm to Serve as Local Entity's Agent
4.A Local Entity shall appoint TWComm to serve as its agent for the following
functions:
4.A.i Accepting orders from AT&T, and for billing and collection of all
charges to AT&T in connection with all Services provided to AT&T by Local
Entity (all payments made to TWComm by (or on behalf of) AT&T in
connection with such Services shall be deemed received by Local Entity
when the payment is received by TWComm);
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APPENDIX C
Page 5 of 17
4.A.ii Negotiating and entering into any modifications or amendments to
the Agreement, or otherwise providing any consents required under the
Agreement, which affect the terms and conditions of this MSA Schedule;
4.A.iii Preparing Performance Evaluations as specified in Appendix K of
this Agreement;
4.A.iv Acting as the "single point of contact" on behalf of the Local
Entity in accordance with Section 28 of the Agreement;
4.A.v Receiving service of process at the address designated for delivery
of notices in Appendix M of the Agreement on behalf of Local Entity; and
0.X.xx Any other functions to be borne by TWComm on behalf of the Local
Entity in accordance with the Agreement, or as otherwise agreed to in
writing by the parties.
4.B TWComm's authority under this Section 4 as agent for Local Entity shall be
irrevocable for the term of this MSA Schedule unless otherwise agreed to by the
parties in writing.
5. MSA Schedule Tables
5.A Tables 1 through 10 of this MSA Schedule set forth the information, terms
and conditions referenced in Section 2.A of this MSA Schedule that are
applicable solely to This Selected MSA. A list of the Tables can be found in the
Table of Contents on Page 2 of this MSA Schedule.
6. Delegation of TWComm Obligations Under the Agreement
6.A TWComm hereby delegates to Local Entity all applicable obligations and
responsibilities under the Agreement related to the offering and provision of
Services in This Selected MSA, and Local Entity hereby assumes such obligations
and responsibilities. Accordingly, TWComm itself shall not be required to
actually provide Services in This Selected MSA.
6.6 AT&T, by executing this MSA Schedule, consents to TWComm's delegation to
Local Entity of all applicable obligations and responsibilities under the
Agreement related to the offering and provision of Services in This Selected
MSA.
6.C Notwithstanding such delegation, TWComm shall be responsible for causing
Local Entity to comply with the applicable terms, conditions, and prices
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APPENDIX C
Page 6 of 17
of This MSA Schedule and the Agreement, and will be financially liable for Local
Entity's failure to comply with such terms, conditions, and prices.
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APPENDIX C
Page 7 of 17
7. Execution by the Parties
In witness whereof, the parties have executed this MSA Schedule through their
authorized representatives.
TIME WARNER COMMUNICATIONS AT&T COMMUNICATIONS, INC.
By:________________________________ By:_____________________________________
Signature Signature
___________________________________ _____________________________________
Name Name
___________________________________ _____________________________________
Title Title
___________________________________ _____________________________________
Date Date
[LOCAL ENTITY NAME]
By:________________________________
Signature
___________________________________
Name
___________________________________
Title
___________________________________
Date
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APPENDIX C
Page 8 of 17
TABLE 1
EXCHANGE AREAS COMPRISING THIS SELECTED MSA
Pursuant to Section 4 of the Agreement, the geographic area comprising This
Selected MSA will be the aggregate area covered by the Exchange Areas listed
below (by their respective Common Language Location Identifiers).
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXQXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
XOXOXOXO
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APPENDIX C
Page 9 of 17
TABLE 2
SERVICES OFFERED
Pursuant to Section 6 of the Agreement, the Services that the Local Entity
expects to offer to AT&T in This Selected MSA are listed below;
All Dedicated Services described in Xxxxxxxx X-0 of the Agreement.
All Switched Access Services described in Appendix D-2 of the Agreement.
All Switched Business Line Services described in Xxxxxxxx X-0 of the
Agreement.
All Local Calling Services described in Xxxxxxxx X-0 of the Agreement.
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APPENDIX C
Page 10 of 17
TABLE 3
INITIAL TYPE I LOCATIONS
Pursuant to Section 15 of the Agreement, those locations which TWComm will serve
by Type I provisioning as part of TWComm's initial network deployment for This
Selected MSA are set forth below:
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 0
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 00
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 00
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
Customer Xxxxxxxx 00
Xxxxxx xxxxxx, Xxxxxx Xxxxxxxx
Xxxx, Xxxxx, Xxx Code
Serving Area
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APPENDIX C
Page 11 of 17
TABLE 4
EXPECTED SERVING AREAS AND NETWORK DEPLOYMENT TIME TABLE
Pursuant to Section 5 of the Agreement, the Expected Serving Areas for This
Selected MSA are identified by their respective Common Language Location
Identifiers in the column of this Table 4 designated "Expected Serving Area".
The dates which TWComm expects to make Dedicated Services and Switched Services
available to AT&T in each Expected Serving Area are set forth in the columns of
this Table 4 designated "Dedicated Services Date of Expected Availability" and
"Switched Services Date of Expected Availability," respectively.
--------------------------------------------------------------------------------
DEDICATED SERVICES SWITCHED SERVICES
EXPECTED DATE OF EXPECTED DATE OF EXPECTED
SERVING AREA AVAILABILITY AVAILABILITY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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APPENDIX C
Page 12 of 17
TABLE 5
DEDICATED SERVICES ANTICIPATED VOLUME TARGETS
Pursuant to Section E-6.7 of Appendix E-6 of the Agreement, the Xxxxx 0, Xxxxx 0
and Level 3 Dedicated Services Anticipated Volume Targets ("AVTs") associated
with each Expected Serving Area for This Selected MSA are set forth in the
respective columns of this Table 5.
--------------------------------------------------------------------------------
EXPECTED
SERVING AREA XXXXX 0 XXX XXXXX 0 XXX XXXXX 0 AVT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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APPENDIX C
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TABLE 6
SWITCHED SERVICES ANTICIPATED VOLUME TARGETS
Pursuant to Section E-6.7 of Appendix E-6 of the Agreement, Xxxxx 0, Xxxxx 0
and Level 3 Switched Services Anticipated Volume Targets ("AVTs") associated
with each Expected Serving Area for This Selected MSA are set forth in the
respective columns of this Table 6.
--------------------------------------------------------------------------------
EXPECTED
SERVING AREA XXXXX 0 XXX XXXXX 0 XXX XXXXX 0 AVT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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APPENDIX C
Page 14 of 17
TABLE 7
TWCOMM SUBCONTRACTORS
Pursuant to Section 27.A of the Agreement, the initial Subcontractor List,
including the work that may be performed by each subcontractor in This Selected
MSA, is provided below:
First Subcontractor's Name
First Subcontractor's Address
First Subcontractor's Telephone Number
Work to be performed by First Subcontractor
Second Subcontractor's Name
Second Subcontractor's Address
Second Subcontractor's Telephone Number
Work to be performed by Second Subcontractor
Third Subcontractor's Name
Third Subcontractor's Address
Third Subcontractor's Telephone Number
Work to be performed by Third Subcontractor
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APPENDIX C
Page 15 of 17
TABLE 8
LOCAL CALLING AREAS COMPRISING THIS SELECTED MSA
Pursuant to Section D-4.1 of Xxxxxxxx X-0 of the Agreement, the Exchange Areas
comprising each of the Local Callings Areas for This Selected MSA shall be the
then current LEC local calling areas within This Selected MSA, subject to
revision from time to time by mutual agreement of AT&T and TWComm in accordance
with Section D-4.1 of Appendix D-4.
[If the parties elect to describe Local Calling Areas by Exchange Area, Local
Calling Areas will be set forth in the form described below.]
Any call which originates and terminates within or between the Exchange Areas
associated with a Local Calling Area shall be deemed to be a Local Call.
Exchange Areas comprising Local Calling Area 1:
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
Exchange Areas comprising Local Calling Area 2:
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
Exchange Areas comprising Local Calling Area 3:
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
XOXOXOXO XOXOXOXO
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APPENDIX C
Page 16 of 17
TABLE 9
TAXES APPLICABLE TO THIS SELECTED MSA
The following taxes may be applicable to the Services provided under this MSA
Schedule as of the MSA Schedule Effective Date. To the extent such taxes are
applicable (whether or not the rates set forth below have subsequently changed),
and unless subject to a tax exempt certificate under Section E-1.8.A of Appendix
E-1 of the Agreement, TWComm will charge AT&T, and AT&T will pay TWComm, for
such taxes.
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APPENDIX C
Page 17 of 17
TABLE 10
OTHER AGREEMENTS IN SUPPORT OF LOCAL ENTITY'S ACTIVITIES AT
AT&T SERVING OFFICES
Pursuant to Section 16.C of the Agreement, other agreements that TWComm and AT&T
have entered into in support of Local Entity's activities at AT&T Serving
Offices in This Selected MSA are listed below:
Occupancy Agreement, effective MMMM dd, 19XX
Synchronization Agreement, effective MMMM dd, 19XX
* Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
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AMENDMENT ONE
Page 1 of 13
AMENDMENT ONE TO THE AGREEMENT
between
TIME WARNER COMMUNICATIONS
and
AT&T COMMUNICATIONS, INC.
--------------------------------------------------------------------------------
The effective date of this Amendment One is:
June 1, 1997
--------------------------------------------------------------------------------
Pursuant to Section 48 of the Agreement between AT&T Communications, Inc. (AT&T)
and Time Warner Communications (TWComm) dated September 15, 1995 (Agreement),
the parties hereby agree to enter into this Amendment One to the Agreement and
to incorporate the following changes: (i) to add supplemental provisions to
the Agreement which cover AT&T Wireless Services, Inc.'s purchase of Services
under the Agreement; (ii) the pricing and billing of certain POP to POP
Services; and (iii) the application of less stringent network requirements under
certain conditions.
--------------------------------------------------------------------------------
PART I AT&T WIRELESS SERVICES
1. AT&T Wireless Services, Inc. of 50400 Carillon Point in Xxxxxxxx, Xxxxxxxxxx
00000, and all of its divisions and affiliates (herinafter referred to
collectively as "AWS") shall be included in the definition of "AT&T" within the
terms and conditions of the Agreement, and any MSA Schedules entered into
pursuant to the Agreement, and, accordingly, all terms and conditions of the
Agreement and all MSA Schedules as well as the terms of this Amendment shall
apply to TWComm and AWS.
2. The "AT&T Wireless Services: Dedicated Access Service Lever Requirements
dated January 1, 1997," a copy of which has been provided to TWComm, and as
modified from time to time (the "AWS Requirements Document"), shall be
incorporated into the "AT&T-CAP Infrastructure Requirements" document and made a
part thereof. Accordingly, notwithstanding
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AMENDMENT ONE
Page 2 of 13
anything to the contrary in the Agreement, the provisions set forth in the AWS
Requirements Document shall apply to any On Net Services provided to AWS under
the Agreement and any applicable MSA Schedules. The provisions governing AT&T's
right to modify the AT&T-CAP Infrastructure Requirements document shall also
govern AT&T's right to modify the AWS Requirements Document.
3. Notwithstanding Section 13.D, with respect to each AWS region, AWS may
designate any reasonable requirements (e.g., manual or mechanized interfaces and
process) necessary for the provisioning, maintenance and billing for Services
provided to AWS within such region.
4. Notwithstanding Sections 15.C.i.(b), 15.C.i.(c) and 15.01(d), the network
expansion requirements set forth in Appendix H are waived solely for Services
provided to AWS.
5. Notwithstanding Appendixes E-1, E-2 and E-6, as amended, any Service
provided by TWComm to AWS for which AWS requires that TWComm provide such
Service via Type I Provisioning shall be priced on an individual case basis,
provided that: (1) such location is not, by that time, served by TWComm's
network; and (2) such location is not deemed to be a Mandatory Type I Building
(as described in Appendix H).
6. Within 15 days after the end of each billing period, TWComm will send all
bills, along with a national summary of such bills, to AWS for payment for all
Services provided by TWComm to AWS pursuant to the Agreement for that billing
period. Such bills shall be delivered to the address designated by the AWS
representative ordering Service from TWComm. Also, within such 15 day period,
TWComm shall forward a copy of such national summary to:
AT&T Manager - Contract Management
Xxx Xxx Xxx Xxxx 0XX000
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
7. At AWS sole discretion, Services for AWS may be ordered by a regional AWS
representative from the designated local TWComm representative for such Selected
MSA. Table 1, attached hereto and made a part hereof, provides a list of
TWComm's current designated representatives for each MSA for which TWComm is
offering telecommunications services as of June 1, 1997. In accordance with
Section 48 of this Agreement, Table-1 may be amended by written notice from
TWComm to AT&T.
8. Table 2, attached hereto and made a part hereof, contains a list of current
AWS divisions and affiliates. In accordance with Section 48 of this Agreement,
Table 2 may be amended by written notice from AT&T to TWComm.
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AMENDMENT ONE
Page 3 of 13
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PART II POP TO POP SERVICES
9. Notwithstanding Appendixes E-2 and E-6 of the Agreement as amended, with
respect to any DS-3 Services provided by TWComm to AT&T between the Served
Premises indicated in Table 3, attached hereto and made a part hereof:
9.a the non-recurring installation charge is * per DS-3 Service;
9.b the monthly recurring charge for each DS-3 Service shall be the lesser
of the applicable monthly recurring charge specified in Table 3 of this
Amendment One or the monthly recurring charge determined for such DS-3
Service based upon the pricing principles set forth in Appendixes E-1, E-2
and E-6, as amended; and
9.c notwithstanding AT&T's ordering and accepting DS-3 Service pursuant to
this Section 2, TWComm shall not begin to impose monthly recurring charges
until the corresponding services provided by other suppliers for such
specific DS-3 project (i.e., the distant-end access service and the
inter-city service) have also been accepted by AT&T. AT&T will notify
TWComm of the date of such acceptance.
10. Pursuant to Section 48 of the Agreement, Table 3 of this Amendment One may
be modified by letter agreement executed by authorized representatives of AT&T
and TWComm.
11. In accordance with Appendix G 2 of the Agreement, with respect to such
specific DS-3 Services provided by TWComm to AT&T between the Served Premises
indicated in Table 3 of this Amendment One:
11.a unless otherwise directed by AT&T, TWComm shall use a separate and
distinct Billing Account Number (BAN) for such Services; and
11.b unless otherwise directed by AT&T, TWComm shall deliver the bills for
such Services to the following address:
AT&T
Billing Supervisor
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX, Xxxx 00X00
Xxxxxxx XX, 00000.
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AMENDMENT ONE
Page 4 of 13
PART III NETWORK REQUIREMENTS
12. Notwithstanding Sections F.4.A and F.4.E. of Appendix F of the Agreement,
TWComm may provide a Service utilizing a network that meets the less stringent
requirements set forth in Section 14 of this Amendment One, provided that, with
respect to such Service, none of the conditions set forth in Section 13 of this
Amendment One are applicable.
13. TWComm shall provide Services that meet all of the network requirements set
forth in Appendix F of the Agreement if any one of the following conditions
apply:
13.a the Secondary Location is within a building that is designated in the
applicable MSA Schedule as an "Initial Type I location" pursuant to
Section 15.B.i of the Agreement;
13.b the Secondary Location is within a building to which AT&T purchases
from TWComm at least five DS-1 Equivalents for a period of at least six
consecutive months; or
13.c AT&T designates that such Service is customer-critical (i.e., AT&T in
its sole discretion determines that the Service provided by TWComm to AT&T
for such AT&T customer is critical to that customer).
14. The network requirements that shall be applicable to Services provided by
TWComm to AT&T in lieu of the requirements set forth in Sections F.4.A and F.4.E
of Appendix F are as follows:
14.a All equipment and facilities between the TWComm Node serving such
Served Premises and the TWComm Node nearest to the Served Premises that is
equipped with SONET platform technology shall consist exclusively of fiber
optic technology; and
14.b TWComm shall provide fully redundant fiber optic strands between the
TWComm Node serving the Served Premises and the nearest SONET-equipped
TWComm Node, although the redundant fiber optic strands need not be
geographically diverse from the primary transmission path (e.g., all four
fiber optic strands may be located within the same cable sheath).
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AMENDMENT ONE
Page 5 of 13
In witness whereof, the parties have executed this Amendment One through their
authorized representatives.
TIME WARNER COMMUNICATIONS AT&T COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXX By: /s/ XXXXX XXXXXXXXXX
-------------------------------- -------------------------------------
Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
----------------------------------- -------------------------------------
Name Name
Local & Access Business Development
Senior Vice President - Sales Vice President
----------------------------------- -------------------------------------
July 31, 1997 July 5, 1997
----------------------------------- -------------------------------------
Date Date
*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
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APPENDIX E-1
Page 1 of 11
GENERAL PRICING PRINCIPLES
E-1.1 Introduction
E-1.1.A This Appendix sets forth: (a) fundamental pricing principles applicable
to all Services; (b) the basic operations to be used by the parties to determine
the net prices to AT&T ("Prices"); (c) certain conditions under which Prices are
adjusted; (d) the time period within which TWComm will effect rate changes; and
(e) the criteria to be used to determine application of taxes.
E-1.1.B Appendixes E-2 through E-6 supplement this Appendix E-1 and set forth
detailed pricing principles and methods to determine the Price for each
respective Service offered by TWComm. Any limitations on price reductions set
forth in Appendixes E-2 through E-6 will not apply to price reductions made
pursuant to this Appendix E-1.
E-1.1.C In any instance where the application of any two pricing principles
within Appendix E-1 through E-6 are mutually exclusive, the procedure which is
analogous to the procedure used by the LEC to determine its rates, if any, shall
apply. In any instance where the sequence of any two pricing principles within
Appendix E-1 through E-6 is not specified, the sequence which is analogous to
the procedure used by the LEC to determine its rates, if any, shall apply. If
there is no analogous LEC procedure to guide the parties, AT&T and TWC shall
mutually agree to the application of the pricing principles.
E-1.2 Fundamental Pricing Principles
E-1.2.A The pricing principles set forth in Appendixes E-1 through E-6 will
apply throughout the term of this Agreement, irrespective of the quantity of
AT&T's purchases under this Agreement.
E-1.2.8 Except as expressly provided for otherwise within this Agreement,
regardless of any pricing assumptions used to determine the Prices, no term
requirements, revenue requirements, revenue commitments or spending levels shall
be conditions of TWComm's offering the Prices for the Services.
E-1.2.C With regard to all Services that have a monthly recurring charge, the
minimum term of service is 30 days. *
E-1.2.D Except as modified by other pricing operations described in Section
E1.3, TWComms prices to AT&T are *. The price that is
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equal to the price * (as defined in Section E-1.4) * based upon the principles
set forth herein is referred to as the Base Price.
E-1.2.E For interstate Services offered by TWComm, Prices are determined using
*. For intrastate Services offered by TWComm, Prices are
determined using *.
E-1.2.F If in any Exchange Area the *, the Price for the applicable Service
shall be determined with respect to the * a Similar Service anywhere in the
Selected MSA. If a Similar Service is not * the Price of such Service is
determined by *.
E-1.2.G To ensure sufficient network capacity for AT&T's current and forecasted
service requirements between an AT&T Serving Office and one or more Exchange
Areas, AT&T expects to place advance orders for DS-3 facilities connecting a
TWComm Node to the point of interface in the AT&T Serving Office ("Entrance
Facilities"). The purpose of AT&T's orders for Entrance Facilities is to enable
TWComm to install such transmission facilities prior to receipt of firm orders
for Services utilizing those facilities. Each order for Entrance Facilities will
specify the increased or decreased network capacity from current service volume,
in DS-3 increments, required between the AT&T Serving Office and each Exchange
Area or group of Exchange Areas. Entrance Facilities are used exclusively as a
vehicle for advance provisioning of network capacity and will not be considered
a TWComm Service. TWComm agrees that such orders and any Entrance Facilities
furnished by it are at no charge except the charges for any Services that may
ultimately be provided over them.
E-1.3 Basic Pricing Operations
E-1.3.A The pricing principles set forth in Appendixes E-2 through E-6 utilize
three basic pricing operations necessary to determine the Price for each
Service. The three basic pricing operations are performed in the sequence that
follows:
E-1.3.A.i Determine the Base Price: Except where expressly stated
otherwise, the Base Price for each Service is * (as defined in
Section E-1.4 of this Appendix E-1) *, and is based upon the principles
set forth in Appendixes E-2 through E-5. Additionally, Section E-1.4
sets forth principles that provide a Maximum Base Price ("MBP") for each
respective Service which shall not be exceeded
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* that otherwise would be used to determine the Base Price.
E-1.3.A.ii Determine the Applicable Discount Percentage ("Discount"): A
Discount is applied to the Base Price of * as applicable that is eligible
for a Discount. All Services are eligible for a Discount except certain *
which TWComm provides using Type II provisioning and certain Self-Healing
Ring Access Services, as further described in Appendix E-2; and certain
Subscriber Lines described in Appendix E-4. As further described in
Appendixes E-2 through E-6, some Discounts vary dependent upon *
some Discounts vary dependent upon *; and certain Discounts are
definitive and * for any reason.
E-1.3.A.iii Apply any Required Price Adjustments: Once the Base Price and
any applicable Discount has been determined, prices are adjusted to
conform to the principles set forth in Section E-1.5 of this Appendix
E-1.
E-1.3.B The specific procedure used to implement these three basic pricing
operations shall be adopted by mutual agreement of TWComm and AT&T consistent
with Section E-1.1.C. If either AT&T or TWComm believes the procedure used to
determine any Price is inconsistent with the pricing principles of this
Agreement, then it may invoke the alternative dispute resolution process
described in Appendix L of this Agreement to determine whether such procedure is
inconsistent with the pricing principles.
E-1.4 Maximum Base Prices
E-1.4.A Maximum Base Prices ("MBPs") are based upon the principle that as Base
Prices for a Service Category increase across Selected MSAs, there is a
corresponding increase in MBPs; and that as Base Prices for a Service Category
decrease across Selected MSAs there is a corresponding decrease in MBPs.
Accordingly, the MBP for each Service shall be determined with respect to the
then current Base Price for each Service Category in each Selected MSA (pursuant
to the applicable pricing principles used to determine the Base Price) ("Base
Price Set").
E-i.4.A.i Notwithstanding the foregoing, the MBP for Call Delivery is a
* pursuant to Section E-3.5.C of Appendix E-3, and no MBP is applicable
to *.
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E-1.4.B The MBP for Transport Arrangements shall be determined independently
from the MBP for Full Service Arrangements.
E-1.4.C The determination of MBPs shall vary by time period as follows:
E-1.4.A.i From the Effective Date of this Agreement to the first
anniversary of the Effective Date of this Agreement, the MBP shall be
determined pursuant to the following formula:
MBP = *
E-1.4.A.ii From the first anniversary of the Effective Date of this
Agreement to the term of this Agreement the MBP shall be determined
pursuant through the following formula:
MBP = *
E-1.5 Similar Services
E-1.5.A For purposes of Appendixes E-1 through E-6 of this Agreement the term
"Similar Service" means the following:
E-1.5.A.i With regard to Dedicated Services, any service that provides a
dedicated connection between two locations utilizing materially the same
Network Interfaces;
E-1.5.A.ii With regard to Switched Access Transport, any service that
provides a dedicated connection for the transport of switched minutes of
use between an interexchange common carrier's serving office and an access
supplier's switching system utilizing materially the same Network
Interfaces;
E-1.5.A.iii With regard to Switched Access Call Delivery, any service
that provides routing of calls between a telephone station and a Similar
Service to Switched Access Transport;
E-1.5.A.iv With regard to Subscriber Lines, any channel providing dial
tone service for business customers that provides a connection for the
origination or termination of calls utilizing materially the same Network
Interface;
----------
*
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E-1.5.A.v With regard to SBL Features, any feature offered with a Similar
Service to Subscriber Lines for business customers that provides
materially the same functionality as a SBL Feature ("Similar Feature");
and
X-0.0.X.xx With regard to Local Calling Service, any switched message
telecommunications service for business customers which provides for the
completion of calls originating and terminating within or between
comparable local calling areas.
E-1.5.B Notwithstanding Section E-1.5.A, a service offering will not be deemed a
Similar Service under the following circumstances:
E-1.5.B.i The service offering is only available as part of a bundled
arrangement (e.g., private line transport for emergency 911 services);
E-1.5.B.ii The service is only available on an individual case basis
within the Selected MSA; or
E-1.5.B.iii The service is a service or a feature that is only available
for, or bundled with, Centrex service.
E-1.6 Price Adjustment Principles
E-1.6.A TWComm will offer AT&T * pricing as follows:
E-1.6.A.i Subject to Sections E-6.A.ii, E-1.6.A.iii and E-1.6.A.iv, if
during the term of this Agreement, (1) TWComm makes * in an Exchange
Area or other applicable geographic area, or (2) a "TW System" (as
defined below) makes a * in a Serving Area or other applicable geographic
area in which TWComm is then offering Services and TWComm has all
necessary licenses, certificates and authorizations necessary to fulfill
its obligations under this Section; in either such case under *
E-1.6.A.i.(a) A "TW System" shall mean any cable television system
controlled by a controlling affiliate of TWComm that is not then
generally offering a Similar Service. (U S WEST is not a controlling
affiliate of TWComm for purposes of this subsection.)
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E-1.6.A.ii If during the term of this Agreement, TWComm *, then TWComm
will **, provided that TWComm shall not be obligated hereunder
to provide *
E-1.6.A.iii The "applicable geographic area" referred to in this Section
E-1.6 shall encompass only areas where TWComm (or, in the case of Section
D-1.6.A.i (2), a TW System) is in fact offering to provide Similar
Services within the United States regardless of whether such area is then
covered by a MSA Schedule.
E-1.6.A.iv Notwithstanding the foregoing, TWComm shall not be obligated
to * under the following circumstances:
E-1.6.A.iv.(a) If the other customer is not an end user or a
common carrier engaged in service competition with AT&T in the
applicable Serving Area or other geographic area;
E-1.6.A.iv.(b) If the other customer is affiliated with
TWComm and is purchasing the Similar Services solely for its
use as an end user and not for resale in whole or in part;
E-1.6.A.iv.(c) If TWComm or its affiliates are receiving all
or part of their consideration for such Similar Services
through participation in the revenues or profits of such other
customer;
E-1.6.A.iv.(d) If the Similar Services are provided between
and among TWComm and/or TW System;
E-1.6.A.iv.(e) If the Similar Service is offered to a state or
local government entity or regulatory authority as
consideration for
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obtaining any franchise, right of way, or other official
authorization or concession;
E-1.6.A.iv.(f) If an agreement for Similar Service was entered
into by the Local Entity prior to the Effective Date of this
Agreement, or prior to TWComm's ownership and control of the
Local Entity entering into the Similar Service arrangement
(this exemption shall not apply to any renewals or extensions
of such arrangement by the Local Entity unless such renewal or
extension was required by law or contract);
E-1.6.A.iv.(g) If following a 60 day cure period, AT&T is in
material breach of the respective MSA Schedule (if applicable)
or of this Agreement;
E-1.6.A.iv.(h).1 With regard to Similar Services within a
Selected MSA, if after 60 days following notice from TWComm to
AT&T, AT&T's Current Purchase Volumes in such MSA have not
increased to be equal to or greater than the Level 1 Dedicated
MSA Volume Target (D-MVT 1) for the applicable MSA; or
E-1.6.A.iv.(h).2 With regard to Similar Services outside any
Selected MSA, if after 60 days following notice from TWComm to
AT&T, AT&T's Current Purchase Volumes for all Selected MSAs
have not increased to be equal to or greater than the Level 1
Dedicated National Volume Target (D-NVT 1).
E-1.6.B If a Similarly Situated CAP which offers services within a Selected MSA
offers a Similar Service within a Current Serving Area at a *, then TWComm *
offered by such Similarly Situated CAP in such Current Serving Area. For
purposes of this Agreement any Company that meets each of the following
conditions shall be deemed to be a Similarly Situated CAP:
E-1.6.B.i The company is not the dominant telecommunications carrier in
that Selected MSA and is not affiliated with AT&T, and such company offers
a set of wireline business telecommunications services similar to those
offered by TWComm in that Selected MSA (i.e., such company must offer
comparable Service Products in the Selected MSA);
E-1.6.B.ii The company has deployed a network covering at least the same
approximate number of business customers as TWComm in that Selected MSA,
regardless of the customers' location; and
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E-1.6.B.iii The company has deployed a network having a self-healing loop
ring architecture which may be composed of either synchronous or
non-synchronous facilities.
E-1.6.C With respect to the Services, TWComm * in Current Serving Areas.
TWComm's promotional offering may contain volume, term, and length of
promotional pricing conditions *. However, any credit, waiver of charges or
other rate reduction that is made generally available (i.e., is available
without distinction to both existing and prospective * for an unspecified
period of time will be deemed a *
E-1.6.D TWComm may * for certain Embedded Services (as defined in Section 11
of the Agreement) pursuant to Addendum 1 of this Agreement.
E-i.6.E TWComm's NRCs for Dedicated Services, Switched Access Transport and
Business Line Services shall be adjusted as follows:
E-1.6.E.i NRCs *
E-1.6.E.ii NRCs * under Section 12.B of this Agreement, or under a
tariff supporting another agreement to the applicable tariffs, if any,
supporting this Agreement.
E-1.6.E.iii NRCs *
E-1.6.E.iv NRCs * Service from a Transport
Arrangement to a Full Service Arrangement.
E-1.6.E.v NRCs * Service from a TWComm branded
service to an AT&T-designated branded service.
X-0.0.X.xx NRCs * activity on an existing Service that is
initiated at the request of TWComm.
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E-1.6.E.vii NRCs associated with an "inside move" are no greater than
one-half of the LEC's applicable installation charges for a Similar
Service, less the applicable Discount.
E-1.6.F With respect to Dedicated Services provided by TWComm to replace * to
charge AT&T for intrastate local transport following the transition of such
trunks to TWComm. AT&T and TWComm may mutually agree *, which shall be applied
in lieu of the * for intrastate local transport. Under no circumstance shall *
under this E-1.6.F * for such Service prior to the application of such
adjustment. TWComm may decline any AT&T Service request for Dedicated Services
to replace LEC switched access local transport trunks for which AT&T is entitled
to * described in this Section E-1.6.F without any adverse affect on TWComm's
Service Performance pursuant to Appendix K or to Imputed Volumes pursuant to
Appendix E-6 of this Agreement.
E-1.6.G With regard to Subscriber Lines, TWComm may adjust the Price of such
Services to include an additional charge * used to determine the Base Price
of such Service. If, however, * used to determine the Base Price of such
Service (e.g., as in the case of certain * services used to determine the
Base Price of SBL Transport Arrangements), * .
E-1.7 Effective Date of Rate Changes
E-1.7.A Regardless of when a change in Price is actually implemented, if AT&T so
requests, the net effect to AT&T shall be as if the effective date of any change
in Price were the date set forth in Section E-1.7.B below. If any TWComm price
reductions required by this Agreement are delayed for any reason, AT&T shall
* which, upon request from AT&T, * . TWComm shall immediately notify AT&T
when it determines that a price change is applicable. Any retroactive price
adjustment made pursuant to this Section E-1.7 shall limited to price
differential AT&T would have obtained for the affected Services for the
preceding three billing periods.
E-1.7.B The effective date of any change in the Price of a Service shall be
determined as follows:
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E-1.7.B.i The effective date of any change in the Price of a Service *
shall be the same date as the effective *.
E-1.7.B.ii The effective date of any change in the Price of a Service
resulting from the increase or decrease of the applicable Discount shall
be first day of the billing cycle in which the new Discount becomes
effective.
E-1.7.B.iii The effective date of any change in the Price of a Service
resulting from an application of a required adjustment under this Appendix
E-1 shall be the date that AT&T was entitled to such price adjustment.
E-1.7.C Notwithstanding Section E-1.7.B.i, for 3 years following the Effective
Date of this Agreement, TWComm need only make any change in the Price of a
Service resulting * effective within 30 days of the effective * , excluding
those rate changes *. However, AT&T shall nonetheless be entitled to a credit
for any resulting price differential from such a 30 day grace period pursuant to
Section E-1.7.A, which, upon request from AT&T, TWComm shall apply within the
next billing cycle.
E-1.8 Applicable Taxes
E-1.8.A TWComm shall charge AT&T, as separately identified items on TWComm's
bills, for any state and local taxes and surcharges and federal excise taxes
which are applicable to AT&T's purchase of Services from TWComm under this
Agreement and which are not subject to a tax exemption certificate provided to
TWComm by AT&T. Except as provided by Section E-1.8.B below, TwComm shall not
charge AT&T for any other taxes, fees, or surcharges, however designated, that
arise out of AT&T's purchase of Services from TWComm including, but not limited
to, real or personal property taxes, income taxes, franchise fees, license fees,
permit fees, and occupational fees, unless (1) AT&T agrees in writing that such
other taxes are properly charged against AT&T, or (2) an appropriate judicial or
administrative body issues a non-appealable ruling that such other taxes are
properly charged against AT&T or another similarly situated party.
E-1.8.B Notwithstanding Section E-1.8.A above, AT&T will pay TWComm for any
taxes, fees, or surcharges which (1) TWComm is obligated pursuant to statute or
regulation to charge AT&T; or (2) AT&T would have paid the LEC if the LEC had
provided the same service in the same jurisdiction, provided, however that
TWComm is not expressly forbidden by statute or regulation to charge AT&T for
such taxes, fees, or surcharges; and that the rates charged by TWComm associated
with such taxes, fees, or surcharges would not exceed the applicable
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rates that would have been charged by the LEC. Each item of tax, fee, and
surcharge shall be individually considered for purposes of determining whether
TWComm was expressly forbidden by statute or regulation from collecting the
same regardless of any relationship between such items. It is understood,
however, that TWComm will not charge for any tax or fee to a governmental agency
or authority, or any surcharge that is clearly related to such a tax or fee, to
the extent the LEC is liable for such tax or fee but TWComm is not liable
therefor.
E-1.8.C Except as otherwise mutually agreed by TWComm and AT&T, the taxes
applicable to the Services provided in each Selected MSA as of the Effective
Date thereof, and how responsibility therefor is to be allocated between the
parties, are set forth in the applicable MSA Schedule.
E-1.8.D AT&T will pay, or indemnify TWComm against, any taxes (and interest or
penalty thereon) for which TWComm is held liable by a relevant taxing authority
(1) if any tax exemption certificate presented to TWComm by AT&T relating
thereto is held to be invalid, or (2) that TWComm had not collected, pursuant to
AT&T's written request. AT&T shall also indemnify TWComm for all expenses
incurred by TWComm in connection with any audit or proceeding for the collection
of such amounts by a taxing authority. TWComm shall provide AT&T with prompt
notice of any such audit or proceeding by a taxing authority and shall
reasonably cooperate with AT&T in responding thereto or in AT&T's response
thereto (at AT&T's expense). If AT&T disputes the taxability of any tax imposed
as a result of the existence or operation of this Agreement, AT&T at its own
expense in its own name may protest the imposition of the disputed tax. In the
event that such protest must be made in the name of TWComm, TWComm shall in good
faith and with due diligence at AT&T's sole expense contest the imposition of
such tax.
E-1.8.E AT&T shall be solely responsible for all taxes, fees or surcharges
charged against it with regard to its own sales of telecommunications services,
regardless of whether the same involve a resale of TWComm Services.
* Indicates that such portions of the contract has been omitted pursuant
to a request for confidential treatment and that such portions have been
filed with the Commission separately.
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PRICING PRINCIPLES: DEDICATED SERVICES
E-2.1 Introduction
E-2.1.A This Appendix E-2 sets forth: (a) general pricing principles under which
Base Prices and Discounts for Dedicated Services will be initially determined
and subsequently adjusted; and (b) a pricing methodology intended to implement
the general pricing principles.
E-2.1.B Appendix E-1 supplements this Appendix E-2 and sets forth, among other
things, additional conditions under which the Prices for Dedicated Services may
be further adjusted.
E-2.1.C Appendix E-6 supplements this Appendix E-2 and sets forth the specific
terms, conditions and methods to determine the recurring charges Discount
applicable to Dedicated Services.
E-2.2 Virtual Pricing
E-2.2.A As of the Effective Date of this Agreement, LEC services under current
LEC tariffs that are Similar to Dedicated Services are offered and priced
exclusively by service element (e.g., channel termination, channel mileage and
multiplexing). Accordingly, LEC customers must purchase and combine different
LEC service elements into various arrangements to make a complete and functional
service (e.g., two DS-1 channel terminations and channel mileage may comprise a
complete LEC DS-1 service). As described in Appendix D-1 of this Agreement,
TWComm will offer Dedicated Services on a "virtual" basis, that is, as a
complete, functional Service. Accordingly, the Price for each Dedicated Service
is reflected as a "per-unit" price, where the per-unit price is determined with
respect to the transmission bit rate of the applicable Dedicated Service (e.g.,
DS-3 Service is priced in DS-3 units, DS-1 Service is priced in DS-1 units, DS-0
Service, Digital Subrate Service and Voice Grade Services is priced in DS-0
units).
E-2.2.B Except where expressly provided otherwise, the Base Price of a Service
is determined from the * based upon the principles set forth in Sections E-2.4
and E-2.5 of this Appendix E-2. Accordingly, the Base Price of each Dedicated
Service shall be the sum of the per-unit costs of * which comprise *. The
per-unit cost shall be determined with respect to the transmission bit rate
of the applicable Dedicated Service.
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E-2.3 Pricing Methodology for Dedicated Services
E-2.3.A The method which shall be used to determine the Price of a Dedicated
Service is as follows:
E-2.3.A.i Determine the * that corresponds to each required TWComm
Service Element * pursuant to Xxxxxxxx X-0 (it being understood that,
while TWComm's Service Elements make reference to TWComm Nodes, *).
E-2.3.A.ii Following the pricing principles set forth in Sections E-2.2,
E-2.4 and E-2.5 of this Appendix E-2, determine the per-unit cost *,
which cost shall be deemed to be the Base Price of the Service Element
to which *.
E-2.3.A.iii Determine the Discount applicable to the Base Price of each
Service Element pursuant to the principles set forth in Section E-2.8 of
this Appendix E-2 and Appendix E-6.
E-2.3.A.iv Sum the Discounted Base Prices of all required Service Elements
as set forth in Appendix D-1.
E-2.3.A.v Determine if an adjustment is applicable to the aggregate
Discounted Base Price pursuant to Appendix E-1.
E-2.3.B Notwithstanding Section E-2.3.A, either AT&T or TWComm may propose a
different method to be used to determine the Base Price of a Dedicated Service
for mutual consideration.
E-2.3.C Notwithstanding Section E-2.3.A above, * on a "virtual" basis, then *
be used to determine the Base Price for a Dedicated Service, but * is the
least costly means to obtain such Similar Service.
E-2.4 Base Price Principles Applicable to All Dedicated Service Elements
E-2.4.A The Base Price for Dedicated Services includes a nonrecurring
installation charge and a monthly recurring charge.
E-2.4.B Except as provided for in Sections E-2.5.E.ii and E-2.5.E.iii, * for
different terms of service, the * such rates are used to determine the Base
Price, so long as such term discount is not based on a term that exceeds
7 years.
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E-2.4.C Except as provided for in Sections E-2.5.E.ii and E-2.5.E.iii, * offers
different rates based on spending levels, or based on revenue or volume
commitments or requirements, the Base Price shall be determined using the
lowest such rates for which AT&T could have qualified if AT&T * to satisfy
all of its access services needs *.
E-2.5 Base Price Principles Applicable to Individual Dedicated Service
Elements
E-2.5.A With respect to Primary Channel Terminations, Channel Mileage and
Multiplexing, * offers different rates depending on various volume purchase
options (e.g., DS-3 multipacks), the Base Price of the Dedicated Service is
determined using the most efficient bundling, routing, and hubbing of all AT&T
access services among all Exchange Areas within the Selected MSA. This
determination shall be based on the utilization * multi-pack arrangement which
could transport all of the respective access services to each corresponding
AT&T Serving Office to which the services are associated. If the volume of
AT&T services exceeds the *, then the Base Price of the Dedicated Service
is based on the *.
E-2.5.A.i Example 1: If the aggregate of all AT&T access services among
all Exchange Areas within the Selected MSA equaled 9 DS-3s of facility
capacity (allowing for the spare capacity described in Section E-2.5.B),
* offers DS-3 multipacks in increments of 3 DS-3s, 6 DS-3s and 12 DS-3s,
then the * which could transport all of the AT&T access services would
be a 12 DS-3 multi-pack arrangement.
E-2.5.A.ii Example 2: If the aggregate of all AT&T access services among
all Exchange Areas within the Selected MSA equaled 13 DS-3s of facility
capacity (allowing for the spare capacity described in Section E-2.5.B),
and the * is a 12-DS-3 multi-pack arrangement, then the 12-DS-3 multi-pack
arrangement alone would be used to determine the Base Price.
E-2.5.B With respect to Primary Channel Terminations, Channel Mileage and
Multiplexing, the per-unit price shall be determined using the following
assumptions regarding utilization of bulk facilities:
E-2.5.B.i The multi-pack arrangements are assumed to be 100% utilized
(e.g., 12 DS-3s on a 12-pack arrangement and 24 DS-3s on a 24-pack
arrangement).
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E-2.5.B.ii DS-3 hubbing facilities are assumed to have 23 of 28 available
channels filled.
E-2.5.B.iii DS-1 hubbing facilities are assumed to have 21 of 24 available
channels filled.
E-2.5.C The Base Price for Channel Mileage shall be based upon the following
principles:
E-2.5.C.i All Channel Mileage determinations are based upon the V&H
(airline mile) coordinates of the applicable * LSOs.
E-2.5.C.ii Total Channel Mileage is the airline mileage between the *
LSOs corresponding to the Exchange Areas of the terminating points of the
Dedicated Service.
E-2.5.C.iii Extended Channel Mileage is the airline mileage between (1)
the * LSO corresponding to the Optional Serving Area of the terminating
point ("Optional LSO") and (2) the nearest LSO corresponding to any
Expected Serving Area, regardless of the actual routing of the Service.
E-2.5.C.iv Basic Channel Mileage is Total Channel Mileage minus Extended
Channel Mileage.
E-2.5.C.v For Dedicated Services having both terminating points located in
the same Exchange Area, the channel mileage is zero and the Base Price for
Channel Mileage is zero.
X-0.0.X.xx The Base Price for Basic Channel Mileage shall be determined
irrespective of Service Product (e.g., XX-0, XX-0, DS-O), and is derived
from * DS-3 channel mileage rate per mile multiplied times the
applicable number of airline miles.
E-2.5.C.vii The Base Price for Extended Channel Mileage shall be based
upon the * mileage charge for the respective Service Product (e.g., the
Base Price for Extended Channel Mileage for DS-1 Service is determined
from the * DS-1 channel mileage rate) multiplied times the applicable
number of airline miles.
E-2.5.D The recurring and nonrecurring Base Price for Multiplexing is determined
from * necessary to multiplex between the transmission bit rate of each network
interface (e.g., DS-3 to DS-1, or DS-3 to DS-O).
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E-2.5.E The Base Price Secondary Channel Terminations shall be determined as
follows:
E-2.5.E.i The Base Price for Secondary Channel Terminations which are
provided by TWComm utilizing Type I provisioning shall be based upon the
LEC (channel termination) * for the respective Service Product (e.g., the
Base Price for a Secondary Channel Termination for DS-1 Service is
determined from the * DS-1 channel termination rate).
E-2.5.E.ii The Base Price for Secondary Channel Terminations which are
provided by TWComm utilizing Type II provisioning as part of an Embedded
Service (as defined in Section 11 of this Agreement) shall be the * Rate
Element of the specific Embedded Service * prior to the time the Embedded
Service was transitioned to TWComm (e.g., if AT&T had obtained the
Embedded Service channel termination *, then the Base Price for such
TWComm Secondary Channel Termination shall be the *).
E-2.5.E.iii The Base Price for all other Secondary Channel Terminations
which are provided by TWComm utilizing Type II provisioning are determined
from (1) * to exceed 5 years (e.g., * discounts that provide a lower cost
for longer term commitments, then the Base Price for a Type II Secondary
Channel Termination shall be based upon *); and (2) the * based upon the
aggregate volume of all AT&T access services *.
E-2.6 Maximum Base Prices
E-2.6.A The MBP for each Dedicated Service Product shall be determined pursuant
to the principles set forth in Section E-1.4 of Appendix E-1 with respect to the
sum of the Base Prices of all required Service Elements.
E-2.7 TWComm's Election Not to Lower Base Prices
E-2.7.A If the Reference Price (as described in Appendix E-6) for a Dedicated
Service Product for the applicable Exchange Areas is determined to be lower than
the Reference Price Threshold set forth in Table 1, on page 9 of this Appendix
E-2, then TWComm will have the option to:
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E-2.7.A.i Charge AT&T a Price for that Service equal to the then current
Base Price for that Service, less the applicable Discount and any
applicable adjustment; or
E-2.7.A.ii Charge AT&T a Price for that Service equal to the Base Price
for that Service that was in effect prior to the LEC rate reduction which
resulted in the Reference Price falling below the designated threshold,
less the applicable Discount and any applicable adjustment.
E-2.7.B If TWComm elects to charge AT&T the higher Price as provided for in
Section E-2.7.A.ii of this Appendix E-2, then the Discount applicable to
Dedicated Services, Switched Access Transport and Call Delivery may be adjusted
as set forth in Section E-6.24 of Appendix E-6.
E-2.8 Determination of Discounts for Service Elements
E-2.8.A The Discount applicable to the recurring charges Base Price for eligible
Service Elements shall be * as determined using the method set forth in Appendix
E-6 of this Agreement.
E-2.8.B The Discount applicable to the nonrecurring charges Base Price for
eligible Service Elements shall be *.
E-2.8.C The eligibility of a Service Element for a Discount is a function of the
Provisioning Type (as described in Section 15 of this Agreement) used by TWComm
to furnish the Service. Table 2, on page 10 of this Appendix E-2, specifies
which Service Element-Provisioning Type combinations are eligible for a Discount
and which are combinations not eligible for a Discount.
E-2.9 Self-Healing Ring Access Service
E-2.9.A The parties will use good faith efforts to set Prices for Self-Healing
Ring Access Service based on principles applicable to other Dedicated Services.
The Base Price for Self-Healing Ring Access Service shall be determined as
follows:
E-2.9.A.i * to Self-Healing Ring Access Service on a * (i.e., available
without distinction to any customer) the Base Price of Self-Healing Ring
Access Service shall be no greater than the price of such Similar Service
based upon principles analogous to those set forth in Sections E-2.4 and
E-2.5 of this Appendix E-2.
E-2.9.A.ii * to Self-Healing Ring Access Service *
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*, the Base Price of Self-Healing Ring Access Service to AT&T for such
AT&T customer shall be *, provided that AT&T is able to provide TWComm
with reasonable evidence of *.
E-2.9.A.iii If neither Section E-2.9.A.i nor Section E-2.9.A.ii is
applicable, the Base Price of Self-Healing Ring Access Service shall be
determined * TWComm.
E-2.9.B Notwithstanding Section E-2.8 of this Appendix E-2, the Discount
applicable to Self-Healing Ring Access Service shall be determined as follows:
E-2.9.B.i If the Base Price is determined pursuant to Section E-2.9.A.i or
E-2.9.A.ii above, then the Discount applicable to Self-Healing Ring
Service shall be no less than the sum of (1) * to other Dedicated Services
in the Selected MSA, and (2) * as determined using the method set forth
in Appendix E-6 of this Agreement.
E-2.9.B.ii If the Base Price is determined pursuant to Section E-2.9.A.iii
above, then the Service * unless the individual case basis agreement on
the Price for such Service *.
E-2.9.C Notwithstanding the foregoing, because there is no Reference Price
Threshold for Self-Healing Ring Access Services, TWComm shall have the right to
refuse to accept * that would otherwise be required in accordance with the
foregoing principles, without any adverse consequences hereunder, provided
that TWComm offers a reasonable individual case basis Price for the Service
based on good faith negotiations with AT&T.
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TABLE 1
DEDICATED SERVICES REFERENCE PRICE THRESHOLDS
(for TWComm's election not to lower Base Prices pursuant to
Section E-2.7 of this Appendix E-2)
SERVICE PRODUCT REFERENCE PRICE THRESHOLDS
--------------- --------------------------
DS-3 Service < *
DS-1 Service < *
Factional DS-1 Service < *
DS-O Service < *
Digital Subrate Service < *
Voice Grade Service < *
2.048 Mbps Service < *
*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed
with the Commission separately.
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TABLE 2
SERVICE ELEMENTS ELIGIBLE FOR A DISCOUNT
A "(check)" within the cell indicates that the Service Element-Provisioning
Type combination is eligible for a Discount. An "x" within the cell indicates
that the Service Element/Provisioning Type combination will not be eligible
for a Discount.
SERVICE ELEMENT TYPE I TYPE II
--------------- ------ -------
Primary Channel Termination (check)
Secondary Channel Termination (check) x
Basic Channel Mileage (check)
Extended Channel Mileage x
Multiplexing (check) x
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PRICING PRINCIPLES: SWITCHED ACCESS SERVICE
E-3.1 Introduction
E-3.1.A This Appendix E-3 sets forth the pricing principles under which the
Prices for each Switched Access Service will be initially determined and
subsequently adjusted.
E-3.1.B Appendix E-1 supplements this Appendix E-3, and sets forth, among other
things, certain conditions under which Prices for Switched Access Services will
be adjusted.
E-3.2 General Pricing Principles for Switched Access Services
E-3.2.A The Prices for Switched Access Services shall be determined using the
three basic pricing operations described in Section E-1.3: (1) determine the
Base Price, (2) determine any applicable Discount, and (3) apply any required
adjustments, as set forth in Appendix E-1.
E-3.2 B As described in Xxxxxxxx X-0, Switched Access Service is composed of two
Service Elements, Switched Access Transport and Call Delivery.
E-3.2.B.i The Base Price for Switched Access Transport includes a
nonrecurring installation charge and a monthly recurring charge. The
pricing principles used to determine the Base Price for Switched Access
Transport are set forth in Sections E-3.3 of this Appendix E-3. The method
used to determine the Discount applicable to Switched Access Transport is
referenced in Section E-3.4 of this Appendix E-3 and described more fully
in Appendix E-6.
E-3.2.B.ii The Base Price for Call Delivery is a per minute charge. The
pricing principles used to determine the Base Price for Call Delivery are
set forth in Sections E-3.5 of this Appendix E-3. The method used to
determine the Discount applicable to Call Delivery is referenced in
Sections E-3.6 of this Appendix E-3 and described more fully in Appendix
E-6.
E-3.3 Determination of Base Price for Switched Access Transport
E-3.3.A The recurring and nonrecurring charges Base Price for Switched Access
Transport are determined as follows:
E-3.3.A.i Notwithstanding Section E-1.2.E of Appendix E-1, inasmuch as
the same Switched Access Transport trunks shall be used to transport
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both interstate and intrastate Switched Access minutes of use, the
recurring charges Base Price applicable to Switched Access Transport shall
be determined from the * based on the principles set forth in this
Section E-3.3.
E-3.3.A.ii The nonrecurring installation Base Price for Switched Access
Transport is determined from the nonrecurring installation charge for the
*.
E-3.3.B The Base Price determination for Switched Access Transport shall be
subject to following conditions:
E-3.3.B.i The Base Price for Switched Access Transport is reflected as a
"per unit" price (virtual pricing), where the "per unit" price is
determined with respect to the transmission bit rate of the applicable
Switched Access Transport trunk group (e.g., a DS-3 Switched Access
Transport trunk group is priced in DS-3 units and a DS-1 Switched Access
Transport trunk group is priced in DS-1 units).
E-3.3.B.ii If the * the * are used to determine the Base Price, so long
as such term discount is not based on a term that exceeds 7 years.
E-3.3.B.iii * the Base Price shall be the * for which AT&T could have
qualified if AT&T *.
E-3.3.B.iv If the LEC offers different rates depending on various bulk
purchase volumes (e.g., DS-3 multi-packs), the Base Price of the Switched
Access Transport is determined using the most efficient bundling, routing,
and hubbing of all AT&T access services among all Exchange Areas within
the Selected MSA. This determination shall utilize the * which could
transport all of the respective access services to each corresponding
AT&T Serving Office to which the services are associated. If the volume
of AT&T services exceeds the *, then the Base Price of the Switched Access
Transport is based on *.
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E-3.3.C The MBP for Switched Access Transport shall be determined pursuant to
the principles set forth in Section E-1.4 of Appendix E-1.
E-3.3.D If the Reference Price (as described in Appendix E-6) for a Switched
Access Transport Service Product is determined to be lower than the Reference
Price Thresholds set forth in this Section E-3.3.F, then TWComm will have the
option to:
E-3.3.D.i Charge AT&T a Price for that Service equal to the * for that
Service, less the applicable Discount and any applicable adjustment; or
E-3.3.D.ii Charge AT&T a Price for that Service equal to the Base Price
for that Service that was in effect prior * which resulted in the
Reference Price falling below the threshold, less the applicable Discount
and adjustment.
E-3.3.D.iii The Reference Price Thresholds for Switched Access Transport
are as follows:
E-3.3.D.iii.(a) * for DS-3 Switched Access Transport; and
E-3.3.D.iii.(b) * for DS-1 Switched Access Transport.
E-3.3.E If TWComm elects to charge AT&T the higher Price as provided for in
Section E-3.3.D.ii of this Appendix E-3, then the Discount applicable to
Dedicated Services, Switched Access Transport and Call Delivery will be adjusted
as set forth in Section E-6.24 of Appendix E-6.
E-3.4 Determination of Discounts for Switched Access Transport
E-3.4.A The Discount applicable to the recurring charges for Switched Access
Transport shall be no less than the sum of the Dedicated Local Discount and
Dedicated National Discount as each is determined using the method set forth in
Appendix E-6 of this Agreement.
E-3.4.B The Discount applicable to the nonrecurring charges for Switched Access
Transport shall be *.
E-3.5 Determination of Base Price for Call Delivery
E-3.5.A The Base Price for Call Delivery is determined from *.
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E-3.5.A.i With regard to interstate Call Delivery, the cost per minute of
use of * would be the sum of * for local switching, carrier common line,
and residual interconnection charge.
E-3.5.A.ii With regard to intrastate Call Delivery, the cost per minute of
use of the * would be the sum of * for local switching and carrier common
line. if the state jurisdiction has adopted local transport restructure
and * in the determination of the Base Price for intrastate Call Delivery.
E-3.5.A.iii * may be used to determine the Base Price of Call Delivery
in place of local switching, carrier common line and residual
interconnection charge (1) *; (2) new * as replacements; and
(3) such * represent the identical functionality of one or more of the *.
E-3.5.A.iv With respect only to Transport Arrangements, notwithstanding
Sections E-3.5.A.i and E-3.5.A.ii, the determination of Base Price for
Call Delivery minutes of use that are originated from, or terminated to,
such lines shall exclude carrier common line.
E-3.5.B * based on spending levels or based on revenue or volume commitments
or requirements, the Base Price for Call Delivery shall be the * for which
AT&T would have qualified if AT&T had used the services *.
E-3.5.C The MBP for Call Delivery is * per minute of use, except as
otherwise adjusted as follows:
E-3.5.C.i If the Base Price for Call Delivery has increased more than 10%
since the Effective Date of this Agreement, and the average Base Price for
all categories of Subscriber Lines in the Selected MSA has decreased more
than * since the Effective Date of this Agreement, then
E-3.5.C.ii The MBP for Call Delivery of * will increase by for each
percentage point increase of the Base Price for Call delivery over.
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E-3.5.C.iii The Base Price review required above is not itself *.
E-3.5.D If the Reference Price for Call Delivery in an Exchange Area is
determined to be lower than the threshold set forth in this Section E-3.5.D,
then TWComm will have the option to:
E-3.5.D.i Charge AT&T a Price for that Service equal to the then current
Base Price for that Service, less the applicable Discount and any
applicable adjustment; or
E-3.5.D.ii Charge AT&T a Price for that Service equal to the Base Price
for that Service * which resulted in the Reference Price falling below
the threshold, less the applicable Discount and applicable adjustment.
E-3.5.D.iii The Reference Price threshold for Call Delivery is *
E-3.5.D.iv If TWComm elects to charge AT&T the higher Price as provided
for in Section E-3.5.D.ii of this Appendix E-3, then the Discount
applicable to Dedicated Services, Switched Access Transport and Call
Delivery will be adjusted as set forth in Section E-6.24 of Appendix E-6.
E-3.6 Determination of Discounts for Call Delivery
E-3.6.A The Discount applicable to Call Delivery shall be no less than the sum
of the Switched Local Discount and Switched National Discount as each is
determined using the methods set forth in Appendix E-6.
*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed
with the Commission separately.
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PRICING PRINCIPLES: SWITCHED BUSINESS LINE SERVICE
E-4.1 Introduction
E-4.1.A This Appendix E-4 sets forth the pricing principles under which the
Prices for each Switched Business Line Service will be initially determined and
subsequently adjusted.
E-4.1.B Appendix E-1 supplements this Appendix E-4, and sets forth, among
other things, certain conditions under which Prices for Switched Business Line
Services will be adjusted.
E-4.2 General Pricing Principles for Switched Business Line Services
E-4.2.A The Prices for Switched Business Line Services shall be determined using
the three basic pricing operations described in Section E-1.3: (1) determine
the Base Price, (2) determine any applicable Discount, and (3) apply any
required adjustments, as set forth in Appendix E-1.
E-4.2.B As described in Appendix D-3, Switched Business Line Services are
composed of two Service Elements: Subscriber Lines and SBL Features. The pricing
principles applicable to Subscriber Lines are set forth in Sections E-4.3 and
E-4.4 of this Appendix E-4. The Pricing principles applicable to SBL Features
are set forth in Sections E-4.5 and E-4.6 of this Appendix E-4.
E-4.2.C The Prices for both Subscriber Lines and Switched Business Line Features
include a nonrecurring installation charge and a monthly recurring charge. No
per minute or per message charges apply to Switched Business Line Service
(Switched Business Line Service is solely a flat rate service). Any per minute
or per message charges to be assessed on calls originated on Subscriber Lines
are assessed to the applicable usage-based Service (i.e., Local Calling Service
or Switched Access Service).
E-4.2.D AT&T and TWComm will mutually agree to the various bundling options that
will be offered to AT&T by TWComm within each Current Serving Area for the
following Services: Switched Business Subscriber Lines; SBL Features; and Local
Calling options, if any (e.g., extended calling area or call measurement).
E-4.3 Determination of Base Prices for Subscriber Lines
E-4.3.A The Base Price for Subscriber Lines shall be determined *, if any, that
provide the * that AT&T would have qualified for it AT&T *
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* (The proportional volume of Similar Services is determined based upon the
number of * for which the end-user customers of such lines elected AT&T as
their Primary Interexchange Carrier ("PIC") *, regardless of LATA or state
boundaries, versus the number of * for which the end-user customers of such
lines elected AT&T as their PIC within the Current Serving Areas with regard
to SBL Services (as they may change from time to time) *.
E-4.3.A.i Example 1: The * offers its services throughout State A which
is composed of 200 Exchange Areas. Within such Exchange Areas, AT&T
reports that 200,000 business lines are PIC'd to AT&T. TWComm offers
SBL Services in one Selected MSA in State A in 20 Current Serving Areas.
Within such Current Serving Areas, AT&T reports that 20,000 business lines
are PIC'd to AT&T. Therefore, the proportional volume of * (20,000 [div]
200,000). If the * requires the purchase of 100,000 lines within State
A to obtain a * on such lines, then AT&T must purchase * within such
Selected MSA from TWComm to receive a corresponding * of the Base Price
from TWComm.
E-4.3.A.ii Example 2: * covering six states offers a territory-wide volume
discount plan. The six-state LEC territory, excluding those Exchange
Areas served by other dominant telephone companies, is composed of 1000
Exchange Areas. Within such Exchange Areas, AT&T reports that 100,000
business lines are PIC'd to AT&T. TWComm offers SBL Services in 50 Current
Serving Areas in two Selected MSAs in such LEC territory. Within such
Current Serving Areas, AT&T reports that 10,000 business lines are PIC'd
to AT&T. Therefore, the proportional volume of *. If the LEC volume
discount plan requires the purchase of 50,000 lines within its territory
to obtain * on such lines, then AT&T must purchase a total of * within
such two * from TWComm to receive a * of the Base Price from TWComm.
E-4.3.B Subject to Section E-4.3.C, the Base Price applicable to each Subscriber
Line Service Product will be as designated from the following by AT&T:
E-4.3.B.i The price for * for which resale by the customer is *, state
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regulation or law, less the applicable Discount, if any, described in
Section E-4.4.
E-4.3.B.ii The price for the * for which resale by the customer is not
prohibited. (This pricing option is not eligible for a Discount.)
E-4.3.B.iii The price for * which is available only to common carriers
for resale. (This pricing option is not eligible for a Discount.)
E-4.3.B.iv In the absence of a designation by AT&T, the pricing option
described in this Section E-4.3.B that provides *.
E-4.3.C If the Base Price for Subscriber Lines is determined *, then, unless
the parties otherwise mutually agree, the Prices for Subscriber Lines shall be
subject to *, including, but not limited to, the purchase of proportional
volumes of Switched Business Line Services from TWComm, as described in Section
E-4.3.A. AT&T may designate the volume and term discount options or optional
pricing plan applicable to a specific Subscriber Line or group of Subscriber
Lines for a specific end-user subject to this Section E-4.3.C. Where the option
described in Section E-4.3.B.i is selected by AT&T, AT&T must represent that all
such Services resold by it under such option will be purchased by a single
end-user that meets the materially relevant terms and conditions *.
E-4.3.D For purposes of this Section E-4.3, the * to a SBL Transport Arrangement
is a similar dial tone switch port or other functionally equivalent offering
(e.g., a voice grade switch port is similar to a voice grade SBL Transport
Arrangement and a 56kbps switch port is similar to a 56kbps SBL Transport
Arrangement). The * to a SBL Full Service Arrangement is a functionally
complete similar business line, whether offered in whole or by
its constituent components (e.g., a dial tone switch port cross-connected
to a subscriber loop constitute a functionally complete service).
E-4.3.E The federal subscriber line charge shall not be included in the
determination of the Base Price regardless * assesses the federal subscriber
line charge with the Similar Service used to determine such Base Price.
However, TWComm may assess a like charge in certain circumstances as an
adjustment pursuant to Section E-1.6.G of Appendix E-1.
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E-4.3.F With respect to the Base Price options described in E-4.3.B above, if
* to Switched Business Line Service as a bundled offering, or interdependent
offering, with intraLATA, interexchange toll services or interLATA,
interexchange toll services, such * are excluded from the determination of the
Base Price for Subscriber Lines.
E-4.3.G The nonrecurring installation charges Base Price applicable to any
Subscriber Line is the installation charge of the * from which the Base Price
for the recurring charge is derived.
E-4.3.H. Notwithstanding Sections E-4.3.A through E-4.3.G above, if AT&T
designates the Local Calling Areas to be the then current expanded local calling
areas associated with TWComm-branded business line service within a Selected MSA
pursuant to Section D-4.1.B.ii of Xxxxxxxx X-0 of this Agreement, then the Base
* of Subscriber Lines within such MSA is the price of the * Service that
provides local calling throughout such expanded calling area less any
applicable volume and term discounts generally available with such Similar
Service for which AT&T has qualified. *
E-4.3.I The MBP for each Subscriber Lines Service Product shall be determined
pursuant to the principles set forth in Section E-1.4 of Appendix E-1.
E-4.4 Determination of Discounts for Subscriber Lines
E-4.4.A Unless AT&T and TWComm otherwise mutually agree, a Subscriber Line shall
not be eligible for a recurring charges Discount if the Base Price of such
Subscriber Line *. A recurring charges Discount is applicable to each
Subscriber Line for which the Base Price is determined pursuant to
Section E-4.3.B.i of this Appendix E-4, provided that such Base Price is not
determined from a *.
E-4.4.B Unless AT&T and TWComm mutually agree otherwise, the recurring charges
Discount is determined by time period as follows:
E-4.4.B.i From the Effective Date of the Agreement through the fifth
anniversary of the Effective Date of the Agreement, the Discount
applicable to eligible Subscriber Lines in all Selected MSAs *.
E-4.4.B.ii From the commencement of the Switched Services Ramp-Up Period
for the first such Expected Serving Area within an MSA through the second
anniversary of the end of the Switched Services Ramp-Up Period for the
last such Expected Serving Area within such MSA, the Discount
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applicable to eligible Subscriber Lines within such Selected MSA is *.
E-4.4.B.iii Following the fifth anniversary of the Effective Date of the
Agreement or the second anniversary of the end of the Switched Services
Ramp-Up Period for the last such Expected Serving Area within such MSA,
whichever occurs later, the Discount applicable to eligible Subscriber
Lines is *.
E-4.4.B.iv During any period when any two of the conditions described in
this Section E-4.4.A of this Appendix E-4 are both applicable, the higher
Discount shall apply.
E-4.4.C Unless AT&T and TWComm mutually agree otherwise, the nonrecurring
charges Discount applicable to Subscriber Lines shall be *.
E-4.5 Determination of Base Prices for SBL Features
E-4.5.A With respect to each SBL Feature, the recurring charge Base Price is the
* the Base Price for SBL Features shall be determined using the * that provides
the least costly Similar Feature for which AT&T would have qualified if AT&T
purchased the same proportional volume of * that AT&T is then currently
purchasing from TWComm. (The proportional volume of Similar Features is based
upon the number of * includes in its volume discount plan, regardless of
LATA or state boundaries, versus the number of Expected Serving Areas for which
TWComm has satisfied each of the Switched Services Preconditions (as described
in Appendix E-6) *
E-4.5.A.i With respect to the determination of "proportional volume," the
illustrative examples provided in Section E-4.3.A of this Appendix also
apply to this Section E-4.5.A.
E-4.5.B The nonrecurring Base Price applicable to any SBL Feature is the
installation charge of the * from which the Base Price for the recurring
charge is derived.
E-4.5.C Pursuant to Section D-3.5 of Xxxxxxxx X-0, if TWComm offers a SBL
Feature on an unbundled basis in a Serving Area *, the nonrecurring and
recurring charges Base Price shall be determined through *; the imputed
value derived * shall be the primary factor in
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such negotiation. (For example, if the * offers a business line without any
features for a monthly recurring charge of * and a bundled offering composed
of a business line with call waiting for a monthly recurring charge of *, the
imputed recurring charge Base Price for Call Waiting shall be *.)
E-4.5.D The MBP for each SBL Feature shall be determined pursuant to the
principles set forth in Section E-1.4 of Appendix E-1.
E-4.6 Determination of Discount for Switched Business Line Features
E-4.6.A The Discount applicable to the recurring charges Base Price for a SBL
Feature is based upon (1) where the Base Price of the SBL Feature falls in a
range of Base Prices; (2) the type of SBL Feature; and (3) the service period
(the first year of service for each SBL Feature receives a higher discount than
the subsequent years of service). Unless AT&T and TWComm otherwise mutually
agree, the Discount applicable to the recurring charge Base Price for a SBL
Feature is the Discount specified in Table 1, on page 6 of this Appendix E-4.
E-4.6.B The discount applicable to the nonrecurring charge Base Price for a SBL
Feature shall be no less than *.
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TABLE 1
DISCOUNTS APPLICABLE TO MONTHLY CHARGES FOR SBL FEATURES
--------------------------------------------------------------------------------
FEATURE TYPE & Discount for 1st year Discount for
BASE PRICE RANGE after Service Remaining Term of
acceptance Service
--------------------------------------------------------------------------------
Custom Calling Features or Feature
Packages
--------------------------------------------------------------------------------
$0 to .59 * *
--------------------------------------------------------------------------------
$.60 to 1.19 * *
--------------------------------------------------------------------------------
$1.20 to 2.99 * *
--------------------------------------------------------------------------------
>= $3.00 * *
--------------------------------------------------------------------------------
CLASS Features or Feature Packages
--------------------------------------------------------------------------------
$0 to 1.99 * *
--------------------------------------------------------------------------------
$2.00 to 2.99 * *
--------------------------------------------------------------------------------
$3.00 to 4.99 * *
--------------------------------------------------------------------------------
>= $5.00 * *
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Voice Messaging Features or Feature
Packages
--------------------------------------------------------------------------------
$0 to 9.99 * *
--------------------------------------------------------------------------------
$10.00 to 14.99 * *
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>= $15.00 * *
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*Indicates that such portions of the contract has been omitted pursuant to a
request for confidential treatment and that such portions have been filed with
the Commission separately.
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PRICING PRINCIPLES: LOCAL CALLING SERVICE
E-5.1 Introduction
E-5.1.A This Appendix E-5 sets forth the pricing principles under which the
Prices for Local Calling Service will be initially determined and subsequently
adjusted.
E-5.1.B Appendix E-1 supplements this Appendix E-5, and sets forth, among other
things, certain conditions under which Prices for Local Calling Service will be
adjusted.
E-5.2 General Pricing Principles for Local Calling Service
E-5.2.A The Prices for Local Calling Service shall be determined using the three
basic pricing operations described in Section E-1.3 of this Agreement: (1)
determine the Base Price, (2) determine any applicable Discount, and (3) apply
any required adjustments, as set forth in Appendix E-1.
E-5.2.B AT&T and TWComm will mutually agree to the various bundling options that
will be offered to AT&T by TWComm within each Current Serving Area for the
following Services: Subscriber Lines; SBL Features; and Local Calling options,
if any (e.g., extended calling area or call measurement).
E-5.3 Determination of Base Prices for Local Calling Service
E-5.3.A The Base Price for Local Calling Service * and amount as a Similar
Local Call. A Similar Local Call is a call that *. However, under no
circumstances shall *.
E-5.3.A.i If the * is measured in per-minute increments, then the
Base Price for Local Calling Service *.
E-5.3.A.ii If the * is measured in per-call increments, then the Base
Price for Local Calling Service *.
E-5.3.A.iii If * are provided on an unlimited basis, then the Base Price
for Local Calling Service is a *
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Service; and Local Calling Service is provided *.
E-5.3.B * apply to Local Calling Service.
E-5.4 Determination of Discounts for Local Calling Service
E-5.4.A Unless AT&T and TWComm otherwise mutually agree, the Discount applicable
to Local Calling Service is determined by time period as follows:
E-5.4.A.i From the Effective Date of the Agreement through the fifth
anniversary of the Effective Date of the Agreement, the Discount
applicable to Local Calls in all Selected MSAs *.
E-5.4.A.ii From the commencement of the Switched Services Ramp-Up Period
for the first such Expected Serving Area through the second anniversary of
the end of the Switched Services Ramp-Up Period for the last such Expected
Serving Area, the Discount applicable to Local Calls within such Selected
MSA is *.
E-5.4.A.iii Following the fifth anniversary of the Effective Date of the
Agreement or the second anniversary of the end of the Switched Services
Ramp-Up Period for the last such Expected Serving Area, whichever occurs
later, the Discount applicable to Local Calls is *.
E-5.4.A.iv During any period when any two of the conditions described in
this Section E-5.4.A of this Appendix E-5 are both applicable, the higher
Discount shall apply.
* Indicates that such portions of the contract has been omitted pursuant
to a request for confidential treatment and that such portions have
been filed with the Commission separately.
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DETERMINATION OF DISCOUNTS
FOR DEDICATED SERVICES AND SWITCHED ACCESS SERVICES
E-6.1 Introduction
E-6.1.A This Appendix E-6 sets forth the methods under which Discounts
applicable to the Base Prices for Dedicated Services, Switched Access Transport
and Switched Access Call Delivery will be determined.
E-6.1.B Appendixes E-1, E-2, and E-3 supplement this Appendix E-6, and set
forth, among other things, the pricing principles, under which Base Prices are
determined, and certain conditions under which Prices will be adjusted.
E-6.1.C * within the potential MSAs set forth in Appendix B, and AT&T's
estimates of its projected need for Services in the future.
E-6.2 General Discounting Principles
E-6.2.A With respect to Dedicated Services, Switched Access Transport and Call
Delivery, the Discount applicable to the Base Price of eligible Services or
Service Elements is the sum of the applicable Local Discount and National
Discount as determined in accordance with the methods set forth in this Appendix
E-6. The Local Discount is determined with respect to each Selected MSA and is
applied to AT&T's purchases of such Services within the respective Selected MSA.
The National Discount is determined with respect to all Selected MSAs and
applies to AT&T's purchases of such Services within all Selected MSAs.
E-6.2.B As described in further detail in this Appendix E-6, Discounts
applicable to Dedicated Services, Switched Access Transport and Call Delivery
are determined based on (1) AT&T's actual purchase volumes and Imputed Purchase
Volumes (as defined in Section E-6.23) (collectively "Purchase Volumes") of
Dedicated Services, (2) AT&T's Purchase Volumes of Subscriber Lines, and (3) the
price of * .
E-6.2.C AT&T shall not be liable for any penalty, true-up, credit, lump sum
payments, or any other remedies if AT&T does not achieve the Volume Targets set
forth in this Appendix E-6 during the Ramp-Up Period (defined in Section
E-6.3.A.ii) and the Plateau Period (defined in Section E-6.3.A.iii). The only
consequence of AT&T's not achieving such Volume Targets is the application of
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the appropriate Discount, if any, applicable to AT&T's Purchase Volumes, as set
forth in this Appendix E-6.
E-6.2.D With respect to Dedicated Services, the eligibility of a Service or its
Service Elements for a Discount is set forth in the pricing principles
applicable to Dedicated Services (Appendix E-2 of this Agreement) and is a
function of the Provisioning Type (as described in Section 15 of this Agreement)
used by TWComm to furnish the Service.
E-6.3 General Discount Periods
E-6.3.A The Discount methods set forth in this Appendix E-6 have been divided
into three general discount periods that correspond to TWComm's ability to offer
Services and AT&T's ability to purchase Services:
E-6.3.A.i Initial Period - The period when TWComm is deploying its network
and infrastructure and AT&T is performing evaluations of such. TWComm may
be offering Services during this period, and AT&T may be making purchases,
but the Ramp-Up Period described below will not have commenced. During
this period, the Discounts are determined based on * AT&T's Purchase
Volumes have exceeded the highest Volume Target for the applicable
Service.
E-6.3.A.ii Ramp-Up Period - The period following (1) TWComm's completion
of its network and infrastructure deployment for a certain Expected
Serving Area; and (2) the parties' mutual agreement that each of the
Preconditions set forth in Sections E-6.10 and E-6.11 of this Appendix E-6
have been satisfied (or waived or deferred pursuant to Section E-6.10.B)
for such Expected Serving Area. During this period the applicable
Discounts are based on AT&T's achievement of predetermined purchase volume
targets ("Volume Targets") with respect to each Expected Serving Area.
Unless the Ramp-Up is suspended pursuant to Section E-6.20.A, the Volume
Targets increase at the Ramp-Up Percentages set forth in Table 3 of this
Appendix E-6 in calendar quarter-year increments. Accordingly,
progressively higher AT&T Purchase Volumes are necessary for AT&T to meet
correspondingly higher Volume Targets and thus maintain the same Discount
Level (as defined in Section E-6.4.A).
E-6.3.A.iii Plateau Period - The period from the end of Ramp-Up Period,
when the Volume Targets have reached their highest level, through the term
of this Agreement. Subject to a certain Discount adjustments specified in
Section E-6.20.F, the applicable Discounts during this period are
determined based upon AT&T's achievement of certain Volume Target levels,
which shall remain constant throughout such period.
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E-6.3.B Dedicated Services and Switched Services are governed separately with
respect to the general discount periods described above. The parties anticipate
that Dedicated Services will progress from the Initial Period to the Ramp-Up
Period before Switched Services.
E-6.3.C Each Expected Serving Area is governed separately with respect to the
general discount periods described above.
E-6.4 Discount Levels
E-6.4.A For purposes of determining Local and National Discounts, discount
percentages have been grouped into three ranges of Discounts ("Discount
Levels"): Level 1; Xxxxx 0; and Level 3.
E-6.5 Inter-relationship of Discounts
E-6.5.A Discounts applicable to Dedicated Services, Switched Access Transport
and Call Delivery are determined, in part, by a combination of the Dedicated
Discount Level and Switched Discount Level achieved for a quarterly period.
Accordingly, an increase or decrease in AT&T's purchases of Dedicated Services
will directly affect the Discount applicable to Call Delivery. Likewise, an
increase or decrease in AT&T's purchases of Subscriber Lines will directly
affect the Discount applicable to Dedicated Services (but not the Discount for
Subscriber Lines themselves, which is determined pursuant to Appendix E-4 of
this Agreement). Table 1 on page 4 of this Appendix E-6, provides an
illustrative example of this inter-relationship.
TABLE 1
ILLUSTRATIVE EXAMPLE OF DISCOUNT RELATIONSHIPS
--------------------------------------------------------------------------------
SWITCHED DEDICATED DISCOUNT LEVELS
DISCOUNT --------------------------------------------------------------
LEVELS Xxxxx 0 Xxxxx 0 Xxxxx 0
------------------==============================================================
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
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E-6.6 Reference Prices
E-6.6.A Discounts applicable to Dedicated Services, Switched Access Transport
and Call Delivery are determined, * . The price of the * is referred to herein
as the "Reference Price." The relationship between the Reference Price and the
Discount is the following: the higher the Reference Price, the higher the
Discount; and the lower the Reference Price, the lower the Discount. Local
Discounts are determined, in part, by where the Reference Price falls within
the Reference Price Ranges (as set forth in Table 2 of this Appendix E-6.
(National Discounts are determined without regard to the Reference Price
Ranges.)
E-6.6.B The Reference Price for each Dedicated Service Product is calculated
from the Base Price of a hypothetical five-mile service within the Selected MSA,
assuming both network interfaces for such service are the transmission bit rate
of the respective Service for the applicable Dedicated Service Product (e.g., a
DS-1 Service would have two DS-1 network interfaces).
E-6.6.C The Switched Access Local Transport Reference Price is the Base Price of
either a hypothetical five-mile DS-1 or DS-3 Switched Access Transport trunk
group, depending upon the applicable Network Interface.
E-6.6.D The Reference Price for Call Delivery is the Base Price of a Call
Delivery minute of use.
E-6.6.E Table 2, on page 24 of this Appendix E-6, sets forth the Reference Price
Ranges applicable to each Dedicated Service Product, Switched Access
Transport and Call Delivery.
E-6.7 Anticipated Volume Targets
E-6.7.A Each MSA Schedule sets forth the minimum Volume Targets necessary for
AT&T to achieve each Discount Level during the Plateau Period ("Anticipated
Volume Targets" or "AVTs"). There are 3 Dedicated Services Discount Levels which
correspond to three Dedicated Services AVTs ("D-AVTs"). There are three Switched
Services Discount Levels which correspond to three Switched Services AVTs
("S-AVTs"). D-AVTs are specified in DS-1 Equivalents, and S-AVTs are specified
in Lines (each of which is described more fully in Section E-6.16 of this
Appendix E-6).
E-6.7.B Although Discounts are not determined on an Expected Serving Area basis,
Anticipated Volume Targets are specified for each Expected Serving Area in the
applicable MSA Schedule. Volume Targets applicable to that Expected
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Serving Area are then calculated pursuant to Section E-6.13 of this Appendix
E-6. Optional Serving Areas shall have no AVTs.
E-6.7.C The Volume Targets applicable to each Selected MSA ("MSA Volume Targets"
or "MVTs") are calculated pursuant to Section E-6.14 of this Appendix E-6. Local
Discounts are determined based upon MVTs.
E-6.7.D The Volume Targets applicable to all Selected MSAs ("National Volume
Targets" or "NVTs") are calculated pursuant to Section E-6.15 of this Appendix
E-6. National Discounts are determined based upon NVTs.
E-6.8 Ramp-Up Schedules
E-6.8.A During the Ramp-Up Period for each Expected Serving Area, the Volume
Targets begin at * of the AVT and ramp-up in accordance with the specific
ramp-up mechanisms set forth in Sections E-6.8.B through E-6.8.D, until
reaching * of the AVT.
E-6.8.B Each Dedicated Ramp-Up Period is composed of 12 quarter-year intervals
("Ramp-Up Intervals"). Each Switched Ramp-Up Period is composed of 20
quarter-year Ramp-Up Intervals. Ramp-Up Intervals shall correspond to calendar
quarter-year periods. Once a Ramp-Up Period has commenced, one Ramp-Up Interval
will automatically progress to the next Ramp-Up Interval each calendar quarter
year unless the progression is interrupted by a suspension as further described
in Section E-6.20 of this Appendix E-6. The quarterly progression of Ramp-Up
Intervals shall be referred to as the Ramp-Up Schedule.
E-6.8.C A Ramp-Up Percentage is associated with each Ramp-Up Interval. The
Ramp-Up Percentage specifies the percentage of each AVT that determines the
Volume Target during that Ramp-Up Interval. The Ramp-Up Percentage associated
with the final Ramp-Up Interval is * ; thus, at the end of the Ramp-Up Period
and during the Plateau Period, * .
E-6.8.D Each increase of the Volume Target, pursuant to this Section E-6.8,
shall be deemed to accrue upon the last day of the respective quarter-year
period. Accordingly, the Volume Target associated with the first Ramp-Up
Interval * until such last day. Upon the last day of the first Ramp-Up Interval,
the Volume Target shall increase through the application of the Ramp-Up
Percentage. The resulting increased Volume Target shall be in effect during
the second Ramp-Up Interval.
E-6.8.E Table 3, on page 24 of this Appendix E-6, specifies the Ramp-Up
Percentages associated with the Dedicated Services Ramp-Up Schedule and Switched
Services Ramp-Up Schedule.
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E-6.9 Commencement of Ramp-Up Periods; Sole Remedies
E-6.9.A Subject to Section E-6.9.A.i through E-6.9.A.iii, with respect to each
Expected Serving Area, the applicable Ramp-Up Period (either Dedicated or
Switched) shall commence upon the first day of the next calendar quarter-year
period following the date when TWComm notifies AT&T in writing that TWComm has
satisfied each of the applicable Preconditions set forth in Sections E-6.10 and
E-6.11 of this Appendix E-6 ("Preconditions Notice").
E-6.9.A.i AT&T may dispute the Preconditions Notice by giving TWComm
written notice of such ("Preconditions Dispute Notice") within 60 days of
receipt of the Precondition Notice. AT&T shall provide a detailed
description of all its grounds for such dispute. The parties shall
immediately make every practical effort to resolve any such dispute, to
avoid delay of commencement of the Ramp-up Schedule.
E-6.9.A.ii If TWComm and AT&T do not reach mutual agreement regarding
whether TWComm has satisfied the disputed Precondition(s) either party may
seek to have the dispute resolved though the Alternative Dispute
Resolution process ("ADR Process") described in Section 39 of the
Agreement.
E-6.9.A.iii The Initial Period shall continue and the Discounts determined
accordingly until the parties mutually agree (whether through the ADR
Process under Section 39, or otherwise), that any disputed Preconditions
have been met, or until an arbitrator under the ADR Process determines
that any such Preconditions have been met.
E-6.9.A.iv If it is determined that TWComm had met the disputed
Precondition(s), then AT&T will within 30 days reimburse TWComm, with
immediately available funds, for the full amount of any difference between
prices paid by it during the Initial Period for Services, and the prices
AT&T would have paid for Services purchased if the Ramp-Up Period had been
in effect (together with interest thereon at the Late Factor (as defined
in Appendix G-1) rate per diem for the period beginning with the date
TWComm was entitled to such price difference to the Xxxx Date of such xxxx
adjustment; and for all other purposes the Ramp-Up Schedule shall be
deemed to have begun on the date it was determined to have begun through
the dispute resolution process.
E-6.9.A.v Notwithstanding any other provision hereof, failure of the Ramp-Up
Periods to commence or application of the Remedies described in Section E-6.20,
together with other remedies set forth in Section 20 of the Agreement, shall be
AT&T's sole remedies with respect to TWComm's failure to satisfy or comply
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with any requirements that are reflected in Dedicated Services Preconditions or
Switched Services Preconditions.
E-6.10 Dedicated Services Preconditions
E-6.10.A The Dedicated Services Ramp-Up Period for each Expected Serving Area
will commence, as set forth in Section E-6.9 above, after each of the following
Dedicated Services Preconditions have been met for that Expected Serving Area:
E-6.10.A.i Appropriate interconnection agreements have been executed
between TWComm * for the LSO serving the Expected Serving Area
consistent with Section G.5 in Appendix G of this Agreement;
E-6.10.A.ii TWComm has obtained all legally required regulatory
certifications, authorizations, and permits necessary to offer Dedicated
Services and TWComm's Dedicated Services tariffs, if required with regard
to this Agreement, have gone into effect for such Expected Serving Area;
E-6.10.A.iii TWComm is offering each of the Dedicated Service Products,
excluding 2.048 Mbps Service, to all locations within the Expected Serving
Area;
E-6.10.A.iv TWComm has deployed its Dedicated Services network for such
Expected Serving Area materially in accordance with the network
specifications set forth in Section 13 and Appendix F of this Agreement,
the Technical Plan which TWComm previously submitted to AT&T pursuant to
Section 13B, and the applicable Network Design Plan;
E-6.10.A.v AT&T has completed its evaluation of TWComm's Dedicated Service
delivery and performance capabilities for such Expected Serving Area in
accordance with the procedures, standards and time frames governing such
evaluations as set forth in Section 14 of this Agreement;
X-0.00.X.xx TWComm has the capability of providing Dedicated Services via
Type I provisioning to each of the Initial Type I Locations set forth in
the applicable MSA Schedule for such Expected Serving Area; and
E-6.10.A.vii If TWComm is then currently offering Dedicated Services in
that Selected MSA, TWComm has provided Satisfactory Performance with
respect to Dedicated Services within the Selected MSA for the previous
Performance Evaluation Period, as measured and defined by Appendix K of
this Agreement.
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E-6.10.A.viii TWComm is continuing to offer each Dedicated Service Product
that it has commenced offering in an Expected Serving Area, in accordance
with Section 33.B of this Agreement.
E-6.10.B AT&T and TWComm may mutually agree to waive or defer any Dedicated
Service Precondition. Notwithstanding any waiver or deferral, AT&T may elect to
enforce a Dedicated Service Precondition as an Ongoing Condition, pursuant to
Section E-6.21 of this Appendix E-6.
E-6.11 Switched Services Preconditions
E-6.11.A The Switched Services Ramp-Up Period for each Expected Serving Area
will commence, as set forth in Section E-6.9 of this Appendix E-6, after each of
the following Switched Services Preconditions have been met for such Expected
Serving Area:
E-6.11.A.i Each of the Dedicated Preconditions set forth in Section E-6.1O
of this Appendix E-6 have been satisfied.
E-6.11.A.ii TWComm has obtained all legally required regulatory
certifications, authorizations, and permits necessary offer Switched
Services, and TWComm's Switched Services tariffs, if required with regard
to this Agreement, have gone into effect;
E-6.11.A.iii TWComm is offering all Switched Service Products, excluding
Digital Business Exchange Lines, to all locations within the Expected
Serving Area;
E-6.11.A.iv TWComm has deployed its Switched Services network for such
Expected Serving Area materially in accordance with the network
specifications set forth in Section 13 and Appendix F of this Agreement
and the Technical Plan which TWComm previously submitted to AT&T and the
applicable Network Design Plan;
E-6.11.A.v AT&T has completed its evaluation of TWComm's Switched Service
delivery and performance capabilities for such Expected Serving Area in
accordance with the procedures, standards and time frames governing such
evaluations as set forth in Section 14 of this Agreement;
X-0.00.X.xx If TWComm is then currently offering Switched Services in that
Selected MSA, TWComm has provided Satisfactory Performance with respect to
Switched Services within the Selected MSA for the previous Performance
Evaluation Period as measured and defined by Appendix K of this Agreement;
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E-6.11.A.vii Number portability, or a reasonable substitute as mutually
determined by AT&T and TWComm, is generally available throughout the
applicable Selected MSA; and
E-6.11.A.viii Local loops between the LEC LSO and Served Premises within
such Expected Serving Area are available to TWComm for resale at
reasonable terms and conditions, as determined by TWComm.
E-6.11.A.ix TWComm is continuing to offer each Switched Service Product
that it has commenced offering in an Expected Serving Area, in accordance
with Section 33.B of this Agreement.
E-6.11.B AT&T and TWComm may mutually agree to waive or defer any Switched
Service Precondition. Notwithstanding any waiver or deferral, AT&T may elect to
enforce a Switched Service Precondition as an Ongoing Condition pursuant to
Section E-6.21 of this Appendix E-6.
E-6.12 Deadlines for Accomplishing Preconditions
E-6.12.A Notwithstanding Section E-6.9, if (1) TWComm has not delivered a
Preconditions Notice, in which AT&T subsequently concurs, for either Dedicated
or Switched Services, within nine months of the respective Date of Expected
Availability set forth in the applicable MSA Schedule for a specific Expected
Serving Area, and (2) TWComm's failure to meet such deadline was not caused
primarily by its inability (despite exercise of reasonable commercial efforts)
to meet one or more Preconditions set forth in Sections E-6.10.A.i, E-6.10.A.ii,
E-6.10.A.v (due to failure of AT&T to meet its obligations under Section 14),
E-6.11.A.ii, E-6.11.A.iii (due to lack of appropriate interconnection
arrangements), E-6.11.A.v (due to failure of AT&T to meet its obligations under
Section 14), E-6.11.A.vii or E-6.11.A.viii; then the applicable Ramp-Up Period
for such Expected Serving Area shall not commence regardless of whether the
applicable Preconditions are satisfied at a later date, unless AT&T provides its
express written consent.
E-6.12.B If (i) TWComm has not delivered a Preconditions Notice, in which AT&T
subsequently concurs, for either Dedicated or Switched Services,) within one
year of the respective Date of Expected Availability set forth in the Applicable
MSA Schedule for a specific Expected Serving Area, and (ii) TWComm's failure to
meet such deadline was not caused primarily by its inability (despite exercise
of reasonable commercial efforts) to meet one or more Preconditions set forth in
Sections E-6.10.A.i, E-6.10.A.ii, E-6.10.A.v (due to failure of AT&T to meet its
obligations under Section 14), E-6.11.A.ii, E-6.11.A.iii (due to lack of
appropriate interconnection arrangements), E-6.11.A.v (due to failure of AT&T to
meet its obligations under Section 14), E-6.11.A.vii or E-6.11.A.viii; then AT&T
and TWComm shall mutually agree to the future status of
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such Expected Serving Area as set forth within this Section E-6.12.B. Such
mutual agreement may include the following options:
E-6.12.B.i Such Expected Serving Area shall commence its respective
Ramp-Up Period upon the satisfaction of the applicable Preconditions,
regardless of the length of time required to accomplish such
Preconditions;
E-6.12.B.ii Such Expected Serving Area shall commence its respective
Ramp-Up Period upon a date certain to be specified by mutual agreement of
the parties; or
E-6.12.B.iii Such Expected Serving Area shall be deemed to be an Optional
Serving Area (Optional Serving Areas have no AVTs).
E-6.12.C In the absence of a mutual agreement otherwise by AT&T and TWComm, such
Expected Serving Area shall be deemed to be an Optional Serving Area.
E-6.12.D If one year from (1) the date that Dedicated Services are first offered
within the Selected MSA, or (2) the Effective Date of the applicable MSA
Schedule, whichever is later, the Dedicated Ramp-Up Period has not commenced in
at least one-half of the Expected Serving Areas, then TWComm may elect to
terminate the applicable MSA Schedule pursuant to Section 31, which begins a
Transition Period as described in Section E-6.22 of this Appendix
E-6.
E-6.12.E If one year from (1) the date that Switched Services are first offered
within the Selected MSA, or (2) the Effective Date of the applicable MSA
Schedule, whichever is later, the Switched Ramp-Up Period has not commenced in
at least one-half of the Expected Serving Areas, then TWComm may elect to
immediately cease offering additional Switched Services within such MSA. AT&T
shall be provided a two-year period to transition existing Switched Services
within such MSA to another supplier before TWComm may cease providing existing
Switched Services. If TWComm makes such an election, then all S-AVTs for such
MSA shall immediately be deemed to be zero for the term of such MSA Schedule.
E-6.13 Determination of Expected Serving Area Volume Targets
E-6.13.A With respect to Dedicated Services, during the Initial Period, the
applicable Dedicated Services Expected Serving Area Volume Target ("D-XVT")
shall be deemed to be zero, regardless of the D-AVT quantities specified in the
applicable MSA Schedule.
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E-6.13.B With respect to Switched Services, during the Initial Period, the
applicable Switched Services Expected Serving Area Volume Target ("S-XVT") shall
be deemed to be zero, regardless of the S-AVT quantities specified in the
applicable MSA Schedule.
E-6.13.C With respect to Dedicated Services, during the Ramp-Up Period for each
Expected Serving Area, each respective D-XVT shall be determined by the
applicable formula:
*
*
*
E-6.13.D With respect to Switched Services, during the Ramp-Up Period for each
Expected Serving Area, each respective S-XVT shall be determined by the
applicable formula:
*
*
*
E-6.13.E With respect to both Dedicated Services and Switched Services, during
the respective Plateau Period, each respective XVT shall equal its corresponding
AVT specified in the MSA Schedule for such Expected Serving Area.
E-6.14 Determination of the MSA Volume Targets
E-6.14.A There are three Dedicated MSA Volume Targets ("D-MVTs") associated with
the three Dedicated Discount Levels; and there are three Switched MSA Volume
Targets ("S-MVTs") associated with the three Switched Discount Levels. The D-MVT
is equal to the sum of the Dedicated XVTs of each Expected Serving Area within
the Selected MSA. As described in Section D-6.3 of this Xxxxxxxx X-0, the date
when each Ramp-Up Period and Plateau Period begins may vary among the Expected
Serving Areas within a Selected MSA; therefore, the amount of the XVT that each
Expected Serving Area contributes towards the MVT shall vary accordingly.
E-6.14.B Each Dedicated MVT shall be determined pursuant to the applicable
formula set forth below:
*
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Xxxx 00 xx 00
X-XXX 0 = *
D-MVT 3 = *
E-6.14.C Each Switched MVT shall be determined pursuant to the applicable
formula set forth below:
S-MVT 1 = *
S-MVT 2 = *
S-MVT 3 = *
E-6.15 Determination of the National Volume Targets
E-6.15.A There are three Dedicated National Volume Targets ("D-NVTs") associated
with the three Dedicated Discount Levels, and there are three Switched National
Volume Targets ("S-NVTs") associated with the three Switched Discount Levels.
E-6.15.B Each Dedicated NVT shall be determined pursuant to the applicable
formula set forth below:
D-NVT 1 = *
D-NVT 2 = *
D-NVT 3 = *
E-6.15.B.i The Adjustment Factor shall vary by calendar year as follows:
E-6.15.B.i.(a) The Adjustment Factor for 1996 shall be 1.06.
E-6.15.B.i.(b) The Adjustment Factor for 1997 shall be 1.12.
E-6.15.B.i.(c) The Adjustment Factor for 1998 and through the term
of this Agreement shall be 1.19.
E-6.15.C Each Switched NVT shall be determined pursuant to the applicable
formula set forth below:
S-NVT 1 = *
S-NVT 2 = *
S-NVT 3 = *
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E-6.16 Determination of Local Discount Levels Achieved by AT&T
E-6.16.A The Dedicated Local Discount Level and the Switched Local Discount
Level that AT&T has achieved is determined once each calendar quarter-year
period. This determination is made based on billing information for Services in
effect as of the first Xxxx Date of the current quarter. Such billing
information, along with records of Imputed Volumes, shall be used to determine
AT&T's Purchase Volume for the then current quarterly period ("Current Purchase
Volume").
E-6.16.A.i Dedicated Services Purchase Volume is measured in DS-1
Equivalents and is composed of: (1) all categories of Dedicated Services;
(2) both categories of Switched Access Transport; and (3) the DS-1
Switched Business Line Service Product. For the purposes of this Appendix
E-6 Table 4,on page 26, specifies the DS-1 Equivalent for each Dedicated
Service Product and Switched Access Transport. A Dedicated Service Full
Service Arrangement shall not be measured a second time if such Service
was previously provided as Transport Arrangement.
E-6.16.A.ii Switched Services Purchase Volume is measured in Lines. For
the purposes of this Appendix E-6, each SBL Service Product shall have the
following value as specified in Lines:
E-6.16.A.ii.(a) Each Analog Business Exchange Line shall equal one
Line.
E-6.16.A.ii.(b) Each Digital Business Exchange Line having a 56 kbps
or 64 kbps Network Interface shall equal one Line.
E-6.16.A.ii.(c) Each Digital Business Exchange Line having a 160
kbps Network Interface shall equal two Lines.
E-6.16.A.ii.(d) Each Analog Business Exchange Trunk shall equal one
Line.
E-6.16.A.ii.(e) Each Digital Business Exchange Trunk having a 56
kbps or 64 kbps Network Interface shall equal one Line.
E-6.16.A.ii.(f) With regard to Digital Business Exchange Trunks
having 1.544 Mbps Network Interface, each active voice channel and
active DS-O channel (an active channel is capable of originating or
terminating calls) shall equal one Line.
E-6.16.B AT&T's Current Purchase Volume of Dedicated Services shall be compared
to the then current Dedicated MSA Volume Target. The Dedicated
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Local Discount Level throughout the then current calendar quarter is the level
corresponding to the highest Dedicated MSA Volume Target (D-MVT3, D-MVT2, or
D-MVT1) that AT&T's Current Purchase Volume of Dedicated Services within such
Selected MSA meets or exceeds.
E-6.16.C AT&T's Current Purchase Volume of Subscriber Lines shall be compared to
the then current Switched MSA Volume Target. The Switched Local Discount Level
throughout the then current calendar quarter is the level corresponding to the
highest Switched MSA Volume Target (S-MVT3, S-MVT2, or S-MVT1) that AT&T's
Current Purchase Volume of Subscriber Lines within such MSA meets or exceeds.
E-6.17 Determination of National Discount Levels Achieved by AT&T
E-6.17.A The Dedicated National Discount Level and the Switched National
Discount Level that AT&T has achieved is determined once each calendar
quarter-year period.
E-6.17.B The aggregate Current Purchase Volume of Dedicated Services across all
Selected MSAs shall be compared to the then current Dedicated National Volume
Target. The Dedicated National Discount Level throughout the then current
calendar quarter is the level corresponding to the highest Dedicated National
Volume Target (D-NVT3, D-NVT2, or D-NVT1) that AT&T's aggregate Current Purchase
Volume of Dedicated Services meets or exceeds.
E-6.17.C The aggregate Current Purchase Volume of Subscriber Lines across all
Selected MSAs shall be compared to the then current Switched National Volume
Target. The Switched National Discount Level throughout the then current
calendar quarter is the level corresponding to the highest Switched National
Volume Target (S-NVT3, S-NVT2, or S-NVT1) that AT&T's aggregate Current Purchase
Volume of Switched Services meets or exceeds.
E-6.18 Determination of Local Discounts
E-6.18.A The Local Discount applicable to Dedicated Services and Switched Access
Transport shall be determined by the following method;
E-6.18.A.i Determine the Dedicated Local Discount Level which AT&T
achieved in the Selected MSA for the then current quarterly period.
E-6.18.A.ii Determine the Switched Local Discount Level which AT&T
achieved in the Selected MSA for the then current quarterly period.
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E-6.18.A.iii Determine the then current Reference Price for the applicable
Service Product within the Expected Serving Area pursuant to Section
E-6.6.
E-6.18.A.iv Determine the applicable Discount by identifying the cell on
Table 5, on page 27 of this Appendix E-6, corresponding to the Dedicated
Discount Level, Switched Discount Level and Reference Price determined in
accordance with the methods set forth in this Appendix E-6.
E-6.18.B The Local Discount applicable to Call Delivery shall be based on the
same method set forth in Section E-6.18.A, above, except that the applicable
Discount shall be determined from Table 6 on page 28 of this Appendix E-6.
E-6.19 Determination of National Discounts
E-6.19.A The National Discount applicable to Dedicated Services and Switched
Access Transport shall be determined by applying the Dedicated National Discount
Level which AT&T achieved for the then current quarterly period to Table 7, on
page 29 of this Appendix E-6.
E-6.19.B The National Discount applicable to Call Delivery shall be determined
by applying the Switched National Discount Level which AT&T achieved for the
then current quarterly period to Table 8, on page 29 of this Appendix E-6.
E-6.20 Provisions for Adjusting the Discount; Sole Remedies
E-6.20.A The purchases that AT&T expects to make under this Agreement are
contingent upon the quality of TWComm's service performance and certain other
conditions. Accordingly, various provisions of this Agreement ("Ongoing
Conditions") have been specified in this Appendix E-6 which, if not met, may
result in an adjustment of the Discount. Additionally, if any such cause for an
adjustment to the Discount occurs during a Ramp-Up Period, the automatic
progression of Ramp-Up Intervals shall be suspended, as described in further
detail in this Section E-6.20. The adjustment of the Discount and suspension of
the Ramp-Up Intervals are collectively referred to as "Remedies." Such Remedies,
together with the other remedies set forth in Section 20 of this Agreement shall
be AT&T's sole remedy with respect to TWComm's failure to satisfy or comply with
any requirements that are reflected in any Ongoing Condition.
E-6.20.B [Intentionally omitted.]
E-6.20.C AT&T and TWComm may mutually agree to waive any Ongoing Condition.
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E-6.20.D If a failure to meet an Ongoing Condition applies solely to Dedicated
Services in an Expected Serving Area, then AT&T may apply Remedies only to
Dedicated Services in such Expected Serving Area (i.e., Dedicated Services
Discount Levels and Dedicated Ramp-Up Intervals) with respect to that Ongoing
Condition. If a failure to meet an Ongoing Condition applies solely to Switched
Services in an Expected Serving Area, then AT&T may apply Remedies only to
Switched Services in such Expected Serving Area (i.e., Switched Services
Discount Levels and Switched Ramp-Up Intervals) with respect to that Ongoing
Condition.
E-6.20.E If AT&T, in its reasonable discretion, determines that an Ongoing
Condition is not being met, AT&T will provide TWComm written notice of such
("Ongoing Condition Deficiency Notice"). If a cure period is applicable to that
Ongoing Condition (as set forth in Section E-6.21), the cure period will
commence upon TWComm's receipt of the Ongoing Condition Deficiency Notice. If
following the prescribed cure period, AT&T, in its reasonable discretion,
determines that the Ongoing Condition remains deficient, AT&T will provide
TWComm written notice of such deficiency and will indicate whether AT&T is
electing to apply Remedies ("Ongoing Condition Remedies Notice"). (If no cure
period is applicable to that Ongoing Condition, AT&T may provide an Ongoing
Condition Remedies Notice to TWComm when AT&T first so determines that an
Ongoing Condition is not being met.) The Remedies are effective upon TWComm's
receipt of an Ongoing Condition Remedies Notice.
E-6.20.E.i TWComm may dispute a Ongoing Condition Deficiency Notice or an
Ongoing Condition Remedies Notice by advising AT&T in writing of its
reasons for dispute. If TWComm and AT&T do not reach mutual agreement
regarding whether an Ongoing Condition is being met, either party may seek
to have the dispute resolved through the ADR Process under Section 39 of
the Agreement.
E-6.20.E.ii The Remedies shall take effect and continue until the parties
mutually agree (whether through the ADR Process under Section 39, or
otherwise) that any disputed Ongoing Condition has been met, or until an
arbitrator under the ADR Process determines that any such Ongoing
Condition has been met.
E-6.20.E.iii If it is determined that TWComm had not failed to meet the
Ongoing Condition, or that its failure was excused under Section 38 of
this Agreement, then AT&T will within 30 days reimburse TWComm, with
immediately available funds, for the full amount of any difference in
prices paid by it during the period Remedies were in effect for Services,
and the prices AT&T would have paid during such period for Services
purchased if the Remedies had not been in effect (together with interest
thereon at the
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Late Factor (as defined in Appendix G-1) rate per diem for the period
beginning with the date TWComm was entitled to such price difference to
the Xxxx Date of such xxxx adjustment.
E-6.20.F With respect to a suspension of the Ramp-Up Schedule, upon the
effective date of the Remedies, the accrual of the then current Ramp-Up Interval
is suspended and the Ramp-Up Percentage applicable to that Ramp-Up Interval will
not be added at the end of the then current quarterly period. Consequently, upon
a suspension, the ramp-up progression is suspended for at least one quarterly
period, even if an Ongoing Condition is corrected within such quarterly period.
E-6.20.G If Remedies are invoked by AT&T for TWComm's failure to meet an Ongoing
Condition and such failure relates solely to Dedicated Services, the D-XVT for
each Expected Serving Area to which Remedies apply shall be deemed to be zero.
If Remedies are invoked by AT&T for TWComm's failure to meet an Ongoing
Condition and such failure relates solely to Switched Services, the S-XVT for
each Expected Serving Area to which Remedies apply shall be deemed to be zero.
If Remedies are invoked by AT&T for TWComm's failure to meet an Ongoing
Condition and such failure relates to both Dedicated Services and Switched
Services, both the D-XVT and S-XVT for each Expected Serving Area to which
Remedies apply shall be deemed to be zero. TWComm acknowledges that if Remedies
are invoked with respect to the Ongoing Conditions set forth in Sections
E-6.21.B, E-6.21.D or E-6.21.G that such Remedies apply to all Expected Serving
Areas within such Selected MSA. If TWComm fails to meet the Ongoing Condition
specified in E-6.21.B both the D-XVT and S-XVT for each Expected Serving Area to
which Remedies apply shall be deemed to be zero.
E-6.20.H Subject to Section E-6.20.H.i through E-6.20.H.iii, Remedies shall
cease upon the first day of the calendar quarter following the date when TWComm
notifies AT&T in writing that it is meeting each of the Ongoing Conditions
("Ongoing Conditions Satisfaction Notice") except with respect to the Ongoing
Condition specified in Section E-6.21.B, which shall be governed by the
provisions set forth in such Section E-6.21.B and Appendix J rather than this
Section E-6.20.H.
E-6.20.H.i AT&T may dispute the Ongoing Conditions Satisfaction Notice by
giving TWComm written notice of such, specifying the reasons for such
dispute ("Ongoing Conditions Dispute Notice") within 30 days of the AT&T's
receipt of the Ongoing Conditions Satisfaction Notice.
E-6.20.H.ii If TWComm and AT&T do not reach mutual agreement regarding
whether TWComm has satisfied the disputed Ongoing Condition(s), either
party may seek to have the dispute resolved though the ADR Process under
Section 39.
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E-6.20.H.iii The Remedies shall continue until the parties mutually agree
(whether through the ADR Process under Section 39, or otherwise) that any
disputed Ongoing Condition has been met, or until an arbitrator under the
ADR Process determines that any such Ongoing Condition has been met.
E-6.20.H.iv If it is determined that TWComm had properly issued the
Ongoing Conditions Satisfaction Notice, then AT&T will within 30 days
reimburse TWComm, with immediately available funds, for the full amount of
any difference in prices paid for Services by it during the portion of the
period Remedies were in effect after such Notice would otherwise have
rescinded the Remedies under Section D-6.20.G, and the prices AT&T would
have paid during such period for Services purchased if the Remedies had
not been in effect (together with interest thereon at the Late Factor (as
defined in Appendix G-1) rate per diem for the period beginning with the
date TWComm was entitled to such price difference to the Xxxx Date of such
xxxx adjustment.
E-6.20.I Whenever the Ramp-Up Schedule resumes after a Ramp-Up suspension, the
Ramp-Up Interval that would have accrued had the Remedies not been invoked will
accrue in the following quarterly period.
E-6.20.J If certain Remedies are in effect for extended periods for a majority
of Expected Serving Areas, as set forth below, then TWComm shall have the
following options:
E-6.20.J.i Notwithstanding Sections 33.A and 33.B of this Agreement and
Section E-6.21.H of this Appendix E-6, if Remedies applicable solely to
Dedicated Services are in effect for at least one-half of the Expected
Serving Areas in a MSA for more than 12 consecutive months, then TWComm
may elect to immediately withdraw its offering of additional Dedicated
Services in such MSA, and with two years notice to permit AT&T to
transition existing Dedicated Services to another supplier, elect to
withdraw its offering of existing Dedicated Services. Upon such an
election the Dedicated MSA Volume Target (D-MVT) for such MSA shall be
deemed to be zero for the term of such MSA Schedule.
E-6.20.J.ii Notwithstanding Sections 33.A and 33.B of this Agreement and
Section E-6.21.H of this Appendix E-6, if Remedies applicable solely to
Switched Services are in effect for at least one-half of the Expected
Serving Areas in a MSA for more than 12 consecutive months, then TWComm
may elect to immediately withdraw its offering of additional Switched
Services within such MSA, and with two years notice to permit AT&T to
transition existing Switched Services to another supplier, elect to
withdraw its offering of existing Switched Services. Upon such an election
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the Switched MSA Volume Target (S-MVT) for such MSA shall be deemed to be
zero for the term of such MSA Schedule.
E-6.20.J.iii If Remedies applicable to both Dedicated Services and
Switched Services are in effect for at least one-half of the Expected
Serving Areas for more than 12 consecutive months, then TWComm may elect
to terminate the applicable MSA Schedule pursuant to Section 32 of this
Agreement.
E-6.21 Ongoing Conditions
E-6.21.A AT&T may elect to enforce a Dedicated Precondition or Switched
Precondition which it had previously waived, subject to a 60 day cure period.
E-6.21.B TWComm shall provide Satisfactory Performance pursuant to Section 18
and Appendix K. TWComm shall be deemed to have failed this Ongoing Condition if
TWComm's Service Performance is determined to be Less Than Satisfactory in any
three Performance Evaluation Periods out of a period of five consecutive
Performance Evaluation Periods, as defined in Appendix K. TWComm shall be deemed
to have met this Ongoing Condition at the time TWComm has two consecutive
Performance Evaluation Periods of Satisfactory Performance.
E-6.21.C TWComm shall have the capability to provide each of the Service
Products set forth below to all locations within the applicable Expected Serving
Area:
E-6.21.C.i Each of the Service Products set forth in Section E-6.10.A.iii
and E-6.11.A.iii. No cure period shall apply to these Service Products..
E-6.21.C.ii 2.048 Mbps Dedicated Service and Digital Business Exchange
Line Service subject to a 90 day cure period.
E-6.21.D TWComm shall be capable of providing Type I provisioning pursuant to
Section 15 and Appendix H of this Agreement. No cure period shall be provided
for this Ongoing Condition.
E-6.21.E TWComm shall maintain all regulatory certifications, authorizations,
and permits needed to offer the Services listed in the applicable MSA Schedule.
No cure period shall apply to this Ongoing Condition.
E-6.21.F TWComm shall maintain interconnection agreements with the LEC that are
consistent with the principles set forth for such agreements in Appendix I. A
cure period of 60 days shall apply to this Ongoing Condition.
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E-6.21.G TWComm shall upgrade its network and infrastructure with
functionalities and capabilities that are no less than those generally available
in the applicable Selected MSA from the LEC or a Similarly Situated CAP and that
are based on technology that is generally available on a commercially reasonable
basis, and which AT&T generally expects from Similarly Situated CAPs in that
MSA. A cure period of six months shall apply to this Ongoing Condition.
E-21.H TWComm shall continue offering all Service Products that it has commenced
offering in an Expected Serving Area, in accordance with Section 33.B of this
Agreement.
E-6.22 Transition Period
E-6-22.A Various provisions of this Agreement provide either AT&T or TWComm an
election to begin a "Transition Period," in which AT&T will transition the
affected Services it is then obtaining from TWComm in a Selected MSA to an
alternative source of supply without receiving lower Discounts as the volume of
Services purchased from TWComm decreases during such transition.
E-6.22.B During any such Transition Period the Discounts applicable to Dedicated
Services, Switched Access Transport and Call Delivery shall be * (1) the
Discounts that applied * of the then current quarter-year period based on
AT&T's Current Purchase Volume, or (2) the Discounts AT&T * .
E-6.22.C The maximum time period for a Transition Period, with respect to a
Selected MSA, shall be two years.
E-6.23 Imputed Volumes
E-6.23.A Various provisions of this Agreement provide for AT&T to receive credit
towards its * as a result of actions * .
E-6.23.B If AT&T issues a Service request to TWComm for any Service Product that
TWComm is then offering within the Current Serving Area and (i) TWComm declines
the request, or (ii) fails to confirm AT&T's requested due date such that AT&T
then fills the request with another supplier, then AT&T shall receive Imputed
Volumes as follows:
E-6.23.B.i The Imputed Volume * for a period of three years thereafter.
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E-6.23.B.ii The quantity of the * shall be counted as if * .
E-6.23.B.iii * shall not be credited if (1) AT&T's requested due date
did not allow TWComm a reasonably sufficient provisioning interval, (2)
TWComm's failure to fulfill such Service request was due to an act or
omission of AT&T or AT&T's customer, or (3) if AT&T's Service request
specifies Type II provisioning to a location for which TWComm is capable
of Type I provisioning.
E-6.23.C AT&T shall receive * for sales that TWComm makes directly to end-user
customers as follows:
E-6.23.C.i With respect to each Similar Service to Dedicated Services that
TWComm provides directly to an end-user customer within an Expected
Serving Area during the respective Dedicated Ramp-Up Period and Plateau
Period (excluding sales to common carriers and sales to other TWComm
customers for the purpose of resale), AT&T * the applicable DS-1
Equivalent for each such Similar Service * so long as TWComm provides
such Similar Service to such end-user customer.
E-6.23.C.ii With respect to each Similar Service to Subscriber Lines that
TWComm provides directly to an end-user customer within an Expected
Serving Area during the first two years of the Switched Ramp-Up Period
(excluding sales to common carriers and sales to other TWComm customers
for the purpose of resale), AT&T * for each such Similar Service
(measured in Lines) * so long as TWComm provides such Similar Service
to such end-user customer, provided that such end-user customer elects
AT&T as its Primary Interexchange Carrier for such Similar Service.
E-6.24 TWComm's Election Not To Lower Base Prices
E-6.24.A If TWComm elects to charge AT&T the Base Price provided for in Section
E-2.7 of Appendix E-2, and Sections E-3.3.F or E-3.5.D of Appendix E-3, then
Discounts for all Dedicated Services, Switched Access Transport and Call
Delivery within the applicable Selected MSA shall be the Discounts applicable to
such Services during the Initial Period.
E-6.24.A.i. If, however, TWComm's election is with regard to a Switched
Service, and AT&T's actual purchases for Switched Services are, at that
time, * of the sum of the S-AVTs for each Expected Serving area then
within a Switched Ramp-Up Period or Plateau Period, then the Dedicated
Discount Level for the affected Selected MSA shall be
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Dedicated Discount Level 2, unless AT&T is actually achieving a higher
Discount Level.
E-6.24.A ii If, however, TWComm's election is with regard to a Dedicated
Service and AT&T's actual purchases for Dedicated Services are, at that
time, * of the sum of the D-AVTs for each Expected Serving area then
within a Dedicated Ramp-Up Period or Plateau Period, then the Switched
Discount Level for the affected Selected MSA shall be Switched Discount
Level 2, unless AT&T is actually achieving a higher Discount Level.
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TABLE 2
DEDICATED SERVICES AND SWITCHED ACCESS REFERENCE PRICE RANGES
(All amounts shown are in dollars)
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Service Reference Price Ranges
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Products Range D' Range C' Range B' Range A' Range A Range B Range C Range D Range E
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DS-3 Service *
------------------------------------------------------------------------------------------------------------------------------------
DS-1 Service *
------------------------------------------------------------------------------------------------------------------------------------
Fractional *
DS-1 Service
------------------------------------------------------------------------------------------------------------------------------------
DS-0 Service *
------------------------------------------------------------------------------------------------------------------------------------
Digital *
Subrate
Service
------------------------------------------------------------------------------------------------------------------------------------
Voice Grade *
Service
------------------------------------------------------------------------------------------------------------------------------------
2.048 Mbps *
Service
====================================================================================================================================
DS-3 S.A. *
Transport
------------------------------------------------------------------------------------------------------------------------------------
DS-1 S.A. *
Transport
------------------------------------------------------------------------------------------------------------------------------------
Call Delivery *
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------
Service Reference Price Ranges
------------------------
Products Range F Range G
-----------------------------------------
DS-3 Service *
-----------------------------------------
DS-1 Service *
-----------------------------------------
Fractional *
DS-1 Service
-----------------------------------------
DS-0 Service *
-----------------------------------------
Digital *
Subrate
Service
-----------------------------------------
Voice Grade *
Service
-----------------------------------------
2.048 Mbps *
Service
=========================================
DS-3 S.A. *
Transport
-----------------------------------------
DS-1 S.A. *
Transport
-----------------------------------------
Call Delivery *
-----------------------------------------
--------------------------------------------------------------------------------
AT&T and TWComm Proprietary: Subject to Nondisclosure Agreement
--------------------------------------------------------------------------------
APPENDIX E-6
Page 24 of 28
TABLE 3
DEDICATED SERVICES AND SWITCHED SERVICES
RAMP-UP SCHEDULE
--------------------------------------------------------------------------------
Ramp-Up Interval Ramp-Up Percentages
-----------------------------------------------------
Dedicated Services Switched Services
--------------------------------------------------------------------------------
1. *
--------------------------------------------------------------------------------
2. *
--------------------------------------------------------------------------------
3. *
--------------------------------------------------------------------------------
4. *
--------------------------------------------------------------------------------
5. *
--------------------------------------------------------------------------------
6. *
--------------------------------------------------------------------------------
7. *
--------------------------------------------------------------------------------
8. *
--------------------------------------------------------------------------------
9. *
--------------------------------------------------------------------------------
10. *
--------------------------------------------------------------------------------
11. *
--------------------------------------------------------------------------------
12. *
--------------------------------------------------------------------------------
13. *
--------------------------------------------------------------------------------
14. *
--------------------------------------------------------------------------------
15. *
--------------------------------------------------------------------------------
16. *
--------------------------------------------------------------------------------
17. *
--------------------------------------------------------------------------------
18. *
--------------------------------------------------------------------------------
19. *
--------------------------------------------------------------------------------
20. *
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AT&T and TWComm Proprietary: Subject to Nondisclosure Agreement
--------------------------------------------------------------------------------
APPENDIX E-6
Page 25 of 28
TABLE 4
DS-1 EQUIVALENTS
(for determining Dedicated Service Purchase Volumes)
--------------------------------------------------------------------------------
SERVICE PRODUCT DS-1 EQUIVALENT
--------------------------------------------------------------------------------
Dedicated Services (both Whole Services
and Transport Services)
--------------------------------------------------------------------------------
DS-3 Service 28
--------------------------------------------------------------------------------
DS-1 Service 1
--------------------------------------------------------------------------------
Fractional DS-1 Service .042 per 64 kbps portion
--------------------------------------------------------------------------------
DS-0 Service .042
--------------------------------------------------------------------------------
Digital Subrate Service .042
--------------------------------------------------------------------------------
Voice Grade Service .042
--------------------------------------------------------------------------------
2.048 Mbps Service 2
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Switched Access Service
--------------------------------------------------------------------------------
(DS-3) Local Transport 28
--------------------------------------------------------------------------------
(DS-1) Local Transport 1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AT&T and TWComm Proprietary: Subject to Nondisclosure Agreement
--------------------------------------------------------------------------------
APPENDIX E-6
Page 26 of 28
TABLE 5
DEDICATED SERVICES LOCAL DISCOUNTS
Then Current Dedicated
Services Discount Level
--------------------------------------------------------------------------------
Then Current Switched Services Purchase Volumes are below Discount Level 1
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 1
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 2
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 3
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Then Current Switched Services Purchase Volumes are below Discount Level 1
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 1
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 2
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
Then Current Switched Services Discount Level is Level 3
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AT&T and TWComm Proprietary: Subject to Nondisclosure Agreement
--------------------------------------------------------------------------------
APPENDIX E-6
Page 27 of 28
TABLE 6
SWITCHED ACCESS SERVICE LOCAL DISCOUNTS
Then Current
Switched Services
Discount Level
--------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 1
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 2
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 3
--------------------------------------------------------------------------------
Range D' Range C' Range B' Range A' Range A
--------------------------------------------------------------------------------
Level 1 *
--------------------------------------------------------------------------------
Level 2 *
--------------------------------------------------------------------------------
Level 3 *
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 1
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 2
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
Then Current Dedicated Services Discount Level is Level 3
-----------------------------------------------------------------------------------------
Range B Range C Range D Range E Range F Range G
-----------------------------------------------------------------------------------------
Level 1 *
-----------------------------------------------------------------------------------------
Level 2 *
-----------------------------------------------------------------------------------------
Level 3 *
-----------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AT&T and TWComm Proprietary: Subject to Nondisclosure Agreement
--------------------------------------------------------------------------------
APPENDIX E-6
Page 28 of 28
TABLE 7
DEDICATED SERVICES AND SWITCHED ACCESS TRANSPORT
NATIONAL DISCOUNTS
--------------------------------------------------------------
Then Current Dedicated Services National Discount
National Discount Level
--------------------------------------------------------------
Level 1 *
--------------------------------------------------------------
Level 2 *
--------------------------------------------------------------
Level 3 *
--------------------------------------------------------------
TABLE 8
CALL DELIVERY NATIONAL DISCOUNTS
--------------------------------------------------------------
Then Current Switched National National Discount
Discount Level
--------------------------------------------------------------
Level 1 *
--------------------------------------------------------------
Level 2 *
--------------------------------------------------------------
Level 3 *
--------------------------------------------------------------
