THIS FIBER OPTIC TELECOMMUNICATIONS SERVICE EXCHANGE AGREEMENT DATED AS OF MAY
14, 1999 (THIS "AGREEMENT"), ENTERED INTO BY AND BETWEEN AVANTEL, S.A., A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED MEXICAN STATES,
HAVING A PLACE OF BUSINESS AT LIVERPOOL 88 PB, COL. XXXXXX, 00000, XXXXXX, D.F.
("AVANTEL"), REPRESENTED BY XXXX XXXXX XXXXXXX MAQUEO, AND TELEREUNION, S.A. DE
C.V. ("TELEREUNION"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
UNITED MEXICAN STATES, HAVING A PLACE OF BUSINESS AT TLACOQUEMECATL XX. 00, XXX.
XXX XXXXX, 00000, XXXXXX, D.F., REPRESENTED BY XXXXX XXXXXX.
WITNESSETH:
WHEREAS, Avantel and Telereunion are the owners and operators of a fiber optic
telecommunications network within the United Mexican States;
WHEREAS, Telereunion and Avantel have each developed and constructed fiber
optic telecommunications network (respectively, the "Telereunion System" and the
"Avantel System" and each sometimes referred to herein as the respective Party's
"System") that are located on physically diverse routes serving different
regions; and
WHEREAS, Telereunion and Avantel wish to connect their Systems on the specific
route segment(s) from time to time identified in schedules to be attached hereto
and made a part hereof, identified below so as to exchange transmission fiber
capacity so that each carrier has fiber capacity serving the same regions via
physically diverse routes; and
WHEREAS, the Parties wish to set forth in this Agreement the terms and
conditions under which they will exchange such fiber capacity;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth in this Agreement, Telereunion and Avantel hereby agree as
follows:
ARTICLE I. DEFINITIONS
The following terms shall have the following definitions for the purposes of
this Agreement:
AFFILIATE: of Telereunion or Avantel as the case may be, means any
--------- person or entity that directly or indirectly through one or
more intermediaries controls, is controlled by or is under
common control of Telereunion or Avantel, as the case may
be. Except for the purposes of this Agreement, Avantel shall
not be deemed to be an Affiliate of Telereunion and
Telereunion shall not be deemed to be an affiliate of
Avantel.
Page 1 of 33
For purposes hereof, the term "control" shall mean the
possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of any
such entity, whether through the ownership of voting
securities or stock, by contract, or otherwise.
AGREEMENT: means this Agreement and its Exhibits.
---------
COLLOCATION SPACE: means space provided to the Fiber Recipient in the
------------------ facilities of the Fiber Provider. Fiber Recipient shall
receive 7x24 access to space under the terms and conditions
agreed upon by both Parties. Unless otherwise stated, space
is provided free of charge. Space shall be allocated on a
standard basis on a per fiber pair basis. Space standards
for POP's and regenerator sites may vary. The specification
of Collocation Space and Standards are set forth in the
attached Exhibit C.
COMMENCEMENT/
-------------
CERTIFICATE
-----------
OF ACCEPTANCE: means the notice on which Telereunion or Avantel, as the
-------------- case may be, issues the Certificate of Acceptance in
accordance with Article 2.3.
CONNECTIONS: means the point at which the Fiber Exchange is spliced or
------------ terminated with Equipment, Fiber Recipient System, or the
equipment or fiber optic filaments of a Third Party.
DEMARCATION POINT: means the point, which defines where responsibilities such
------------------ as installation, maintenance, etc. of each of the Parties
begins and ends. The Demarcation Point shall be a particular
DSX cross-connect panel at the POP at both Segment ends and
both sides of a signal regenerator site, as specified in
Exhibit A.
EQUIPMENT: means the power equipment and electronic devices equipment
---------- including, without limitation repeaters, junctions, patch
panels, alarm monitoring equipment, and other equipment
necessary to provide a network fiber transmission capacity
located on the sides of the Demarcation Points. The word
"equipment" when not capitalized refers to equipment of any
type.
Page 2 of 33
END-USER: means any person (including the Fiber Recipient, as defined
-------- below) using for revenue bearing, communication purposes the
services, or any portion thereof, provided to the Fiber
Recipient under this Agreement, regardless of whether that
person is in private with the Fiber Recipient.
EXCHANGED FIBER: means the aggregate of Fiber Exchange pursuant to this
----------------- Agreement.
FIBER EXCHANGE: equivalent units being swapped for no net cost. Each
--------------- equivalent unit is to be defined in a separate Appendix.
FIBER PROVIDER: means the Party providing the relevant Fiber Exchange.
---------------
FIBER RECIPIENT: means the Party receiving the relevant Fiber Exchange.
----------------
LAWS AND
---------
REGULATIONS: means all government statutes, laws, codes, ordinances,
------------ judgments, decrees, injunctions, permits and regulations;
NETWORK
-------
SPECIFICATIONS
--------------
AND OPERATING
--------------
STANDARDS: means those specifications set forth in the attached Exhibit
---------- D, as well as applicable common industry standards, which
the Parties will meet and comply with in the provision of
Exchanged Fiber hereunder.
POP OR POINT
--------------
OF PRESENCE: means a facility situated in either the Telereunion's System
------------- or Avantel's System at which the operator of the System can
add or drop transmission facilities. POP facilities include,
without limitation, electrical and/or optical equipment,
electrical power, air conditioning and other environmental
conditioning.
Page 3 of 33
PROTOCOL OF
------------
ACCEPTANCE: Set as activities and events set forth in Exhibit E related
----------- to the test of both stand-alone and network interoperability
that warrantees the proper functionality of the Fiber
Exchange.
REGENERATOR SITE: means a facility situated between POPs were optical signal
----------------- is reproduced or amplified. Fiber Exchange may not be added
or dropped from that location.
RELATIONSHIP
------------
MANAGERS means any Management person designated either by Telereunion
-------- or Avantel respectively, authorized to negotiate any
documentation related to any provision of this Agreement.
ROUTE: means the path on which the Fiber Exchange will be located
------ as set forth in Exhibit A including, the Demarcation Points.
SEGMENT: means the portion of the Fiber Provider's (as defined below)
------- System between any two of the Fiber Provider's POP's which
are located along the route of a Fiber Exchange. Within a
Segment there may exist regenerator sites as necessary to
propagate the optical signal.
STRUCTURES: means the structure supporting the fiber including, without
----------- limitations poles, conduits, risers, and associated steel
works, including without limitation lateral, located on or
in easements, street licenses, and/or right of way.
SYSTEM CONNECTION: means a fiber optic cable or other digital medium, which
------------------ connects a Telereunion POP and an Avantel POP at each end of
a Fiber Exchange route.
THIRD PARTY: means any person or entity that is not a Party, an Affiliate
------------- Party, or a successor permitted assignee of a Party.
THIRD PARTY
------------
CHARGES: means any charges, fees, taxes and terms and conditions of
-------- service imposed by a Party other than the Fiber Provider,
including, but not limited to, rate fluctuations in
telephone tariffs, communications charges and access charges
that are imposed or enacted by access suppliers to a third
Party provider after the date of signing of this Agreement.
Page 4 of 33
ARTICLE II. FIBER OPTIC EXCHANGE
2.1 The Fiber Optic Exchange(s) that are to be exchanged pursuant to this
Agreement shall from time to time be specified in Exhibit A (which shall be
completed for each Fiber Exchange, but which shall not be effective unless
signed by Telereunion and Avantel's respective Relationship Managers as well as
from the company's legal representative, or their successors-in-interest.) Each
Party agrees to act as a Fiber Provider and as a Fiber Recipient, subject to the
terms of this Agreement. The Parties further agree that only equivalent
(symmetrical) and mutually beneficial exchanges of fiber shall be considered as
Fiber Exchange. (Equivalency shall be determined on a case-specific basis.)
Each Exhibit A shall include the relevant Segment end points, Regenerators
Sites, time periods, exchanged capacity quantities, delivery dates, equivalency
basis statement, definition of System Connection design, delivery and financial
responsibilities, LEC or Third Party approved cross-connections or services,
collocation space and cost definitions needed to effect each exchange of Fiber
Exchange.
2.2 Promptly after the Parties have determined the scope of the work to be
performed to establish System connections and LEC cross-connections, the Parties
shall cooperate to cause such work to be performed in compliance with the
procedures set forth in the attached Exhibit B and shall share equally the cost
of such work, including the cost of any circuits leased from a third Party
(unless otherwise specified in writing). Each Party shall individually bear the
cost of adding any new equipment to its POP, Regenerator Site or the fulfillment
of collocation space obligations.
2.3 Upon completion of the work specified in Section 2.2 hereof, the Parties
shall perform an acceptance and performance test for a duration of 2 weeks or
less based upon the specification and measurement criteria stated in the Network
Specifications and Operating Standards and the Protocol of Acceptance, to
determine that the relevant Fiber Exchange is functioning properly. When the
Fiber Recipient has determined that the capacity to be received meets the
Network Specifications and Operating Standards and the Protocol of Acceptance
measurement criteria, Fiber Recipient shall complete and deliver to the other
Party a Commencement/Certificate of Acceptance in the form attached hereto as
Exhibit G.
2.4 Fiber Exchange services hereunder do not include any multiplexing/
demultiplexing; "drop and insert capabilities"; or the obtaining of any local
access service unless agreed by the Parties hereto. Such arrangements and any
associated costs will be incorporated into Exhibit A of this Agreement.
Page 5 of 33
ARTICLE III. OPERATION AND CONTROL
ARTICLE III. OPERATION AND CONTROL
3.1 Telereunion and Avantel or their respective designees authorized under
their respective title concessions shall control, operate and maintain their own
systems and shall do so in a manner consistent with the Network Specifications
and Operating Standards. The Parties shall be subject to and agree to comply
with all the technical and operational requirements imposed by the other Party
upon to the End-User of the Fiber Provider's System so long as such requirements
are consistent with the Network Specifications and Operating Standards and this
Agreement.
3.2 In the event Telereunion chooses to transfer control over all or any
part of Telereunion's network assets, unless it is part of the merger,
acquisition or transfer of Telereunion's concession, Avantel will have the first
right of refusal to assume financial responsibility of the network fiber
capacity. To this extent, Telereunion will make its best efforts to assit
Avantel, within 60 days after the execution of this Agreement, in any financial
negotiation with Telereunion's lenders.
3.3 In the event that any Party decides to sell all or any portion of the
underlying Fiber Exchange asset, unless it is part of the merger, acquisition or
transfer of any Party concession, the sell shall be subject to the following
procedure:
3.3.1 No Party may sell all or any portion of the Fiber Exchange asset to a
Third Party without the prior written notification to the other Party.
3.3.2 In the event a Party (the Selling Party) desires to sell all or any
portion of the Fiber Exchange assets (the Offered Fiber Exchange) to a
Third Party, the Selling Party must do its best efforts, including any
legal action, to enforce the Buying Party to comply with and honor the
terms and conditions set forth in this Agreement.
3.4 Telereunion agrees, to the extent possible, grant the First Right of
Refusal to Avantel in case Telereunion decides to sell all or part of the Fiber
Exchange asset or the whole Telereunion's network capacity. To this extent,
Telereunion will make its best efforts to assit Avantel in any financial
negotiation with Telerunion's lenders.
3.5 In the event that any Party decides to sell all or any portion of the
underlying Fiber Exchange asset, or upon the occurrence of a change of control
of any of the Parties, the other Party will have the right to terminate this
Agreement within two years after any of these events is completed.
Page 6 of 33
ARTICLE IV. POINTS OF DEMARCATION
4.1 Marking. The Demarcation Point shall be identified on Exhibit B at each
--------
Connection to the route.
4.2 Fiber Provider Responsibility. Fiber Provider shall secure rights of
-------------------------------
way and easements for and otherwise be responsible for the System Connection on
the Fiber Exchange portion provided to the Fiber Recipient. Fiber Provider
shall ensure that the System Connection provided to the Fiber Recipient shall be
designed in a manner that is consistent with the Network Specifications and
Operation Standards, and will not conflict physically or otherwise interfere
with joint users of the Fiber, Fiber Exchange accessories, structures or any
other property needed in the installation, construction, maintenance or use of
the Fiber. Fiber Provider shall also obtain any government approvals necessary
for the installation, maintenance, and ownership of Equipment installed and/or
used on the side of the Demarcation Point.
ARTICLE V. MAINTENANCE
5.1 Fiber Provider's Obligations. Fiber Provider shall, at its own expense,
-----------------------------
maintain and repair, or cause to be maintained and repaired, the Fiber Exchange
provided to the Fiber Recipient, including emergency repairs, pursuant to
Exhibit I Maintenance Specifications. Fiber Provider reserves the right, but
not the obligation, to perform such maintenance with its own crews or
contractors, or those of its Affiliates. Fiber Recipient shall have the right
to have a representative available, at Fiber Recipient's expense, to assist
Fiber Provider in any maintenance or repair of the Fiber Exchange provided to
the Fiber Recipient. At all times during this Agreement, Fiber Provider shall
take all necessary steps to ensure that the Fiber Exchange provided to the Fiber
Recipient operate in a manner consistent with the Network Specifications and
Operation Standards. It is Fiber Provider's intention, and Fiber Provider
represents and warrants, that maintenance work performed by Fiber Provider on
the Fiber Exchange provided to the Fiber Recipient will not normally result in
interruptions or defects. If Fiber Provider's routine maintenance is of the sort
that it could jeopardize any Fiber Recipient's use of the Fiber Exchange
provided by the Fiber Provider or require the interruption of all or any portion
of the use, Fiber Provider shall so notify Fiber Recipient in writing via
facsimile or e-mail at least sixty (60) days before such interruption.
5.2 Periodic Inspection. Subject to the limitations on access specified
---------------------
below, Fiber Provider shall have the right to make reasonable Periodic
Inspections of Fiber Recipient's operations occupying or affecting Fiber
Provider's or its Affiliates' property. Such Periodic Inspections shall be for
the sole purpose of facilitating Fiber Provider's maintenance obligations
hereunder, and Fiber Provider shall not have access to any property or
information which Fiber Recipient in its sole discretion deems irrelevant to
such maintenance obligations. Fiber Provider will give Fiber Recipient at least
sixty (60) advance written notice of any periodic inspections. A representative
of Fiber Recipient may accompany Fiber Provider's representative on all Periodic
Inspections, at Fiber Provider's expense. Such inspections shall be at Fiber
Provider's expense.
Page 7 of 33
5.3 Fifteen (15) calendar days prior notification to the Service Recipient
is required for normal routine maintenance scheduled by the Service Provider for
its System if such maintenance will produce an outage on the Capacity Exchange.
Both parties will use their reasonable efforts to accommodate reasonable
requests and to schedule a mutually acceptable interval in which normal routine
maintenance may be performed.
5.4 Fiber Recipient's Obligations. Fiber Recipient shall be solely
--------------------------------
responsible for all aspects of the operation of the Fiber Recipient System and
the operation and maintenance of the Fiber Recipient System, Connections, and
Equipment.
5.5 Emergency Maintenance. Fiber Provider shall give Fiber Recipient as
-----------------------
much advance notice of emergency maintenance as is practically and reasonably
possible under the circumstances. For purposes of this section, "emergency
maintenance" is defined as maintenance not reasonably anticipated or preventable
by Fiber Provider, but reasonably necessary to restore lost or disrupted use of
the Fiber Exchange provided to the Fiber Recipient.
ARTICLE VI. ACCESS TO SITE
6.1 Access by Fiber Recipient. Fiber Provider agrees, upon reasonable
-----------------------------
request to allow Fiber Recipient's representative direct ingress and egress to
Fiber Provider's property or the property on which Fiber Provider has placed
Fiber Exchange provided by Fiber Provider, in connection herewith for the
purpose of facilitating the purposes of this Agreement, and to permit Fiber
Recipient to be on Fiber Provider's premises at such times as may be required to
test, repair and conduct emergency repairs to the Fiber Exchange provided to
Fiber Recipient, as specified above, or to observe Fiber Provider's testing,
maintenance and repair of the Fiber, Fiber Exchange accessories, Structures, and
other facilities and equipment. Employees and agents of Fiber Recipient shall,
while on the premises of Fiber Provider, comply with all rules and regulations,
including, without limitation, security requirements, and, where required by
government regulations, receipt of satisfactory governmental clearances.
6.2 Access by Fiber Provider.
---------------------------
(a) In no event shall Fiber Provider be permitted access to the property of
Fiber Recipient or its Affiliates without prior notice to Fiber Recipient
and agreement to a mutually acceptable time.
(b) Fiber Provider shall at all times perform its work in accordance with the
applicable provisions of local, state and federal occupational safety and
health laws. Fiber Recipient shall have the authority to suspend Fiber
Provider's work or operations in and around Fiber Recipient's property if,
in the sole judgment of Fiber Recipient, at any time hazardous conditions
arise or any unsafe practices are being followed by Fiber Provider, its
employees, agents or contractors and Fiber Provider fails to correct such
conditions. The presence of Fiber Recipient's authorized employee or
agent(s) shall not relieve Fiber Provider of its responsibility to conduct
all of its work operations in and around Fiber Recipient's property in a
safe and workmanlike manner, and in accordance with the terms and
conditions of this Agreement.
Page 8 of 33
ARTICLE VII. INTERRUPTIONS
7.1 Upon receipt of telephonic notice (to the trouble reporting numbers
detailed in the Exhibit F) that the Fiber Exchange provided hereunder on any
Segment is not operating in compliance with the Network Specifications and
Operating Standards and the measurement criteria indicated in the Protocol of
Acceptance, the Parties agree to work cooperatively and with due diligence to
locate the problem and restore the service within two (2) hours after the point
of failure is exposed and fibers are ready to be spliced.
7.2 If the system Connection is not brought into compliance within two (2)
hours, then the repair needs shall be escalated to the Parties designated in
Exhibit F, Contact/ Escalation List. Restoration of the Fiber Exchange service
will be considered closed, whenever the Fiber Recipient is able to send a fiber
signal between nodes that were malfunctioning, according to the Network
Specifications and Operating Standards and the measurement criteria as indicated
in the Protocol of Acceptance certified by both parties.
7.3 Regardless of the foregoing, if a system is not brought into compliance
with the Network Specifications and Operating Standards within eight (8) hours,
the Fiber Recipient may at its option charge the Fiber Provider a service charge
for each non-compliance Fiber Exchange, measured from the telephonic notice
until the malfunction has been repaired, and calculated at the rate US$10,000
per hour. When the Segment has been repaired by the Fiber Provider, a mutual end
to end performance test will be completed to ensure the Segment is operating in
compliance with the Network Specifications and Operating Standards and an
Exhibit G form shall be executed by the Fiber Provider and signed by the Fiber
Recipient. In case the interruption is attributed to the System Connection
located in CFE facilities, or to the facilities of any other Third Party, the
eight (8) hour term will begin at the time CFE or the Third Party gives access
to Avantel's and Telereunion's personnel to such facilities.
7.4 If the Fiber Exchange has repeatedly malfunctioned an unreasonable
number of times, the Fiber Recipient of the Segment may elect to terminate its
use. In this case, the Fiber Provider will be required to discontinue the use of
the corresponding Fiber Exchange or at its option purchase from the Fiber
Recipient at 1.2 times the market effective rate for a like fiber capacity on a
monthly lease basis. The Fiber Recipient must provide this leased service for a
minimum period of 6 months.
7.5 In the case Fiber Provider cannot restore the service within 24 hours,
the Fiber Recipient may at its own cost, take any and all necessary actions to
put the Fiber Exchange back into service. The Fiber Provider must be notified
in writing of the intent to exercise these corrective actions. This notice will
be provided in writing to the Fiber Provider network operations center available
on a 7x24 hour basis as set forth in Exhibit "E".
Page 9 of 33
7.4 A current list of contact numbers and escalation contacts is attached as
Exhibit F. Any material updates of this list shall be provided in writing to
the other Party.
ARTICLE VIII. ROUTE CHANGES
8.1 In the case Telereunion or Avantel substitutes, changes, eliminates or
rearranges any of its facilities which it owns in providing the service
hereunder, including, but not limited to, the substitution of different
equipment or facilities, the changing of operating or maintenance
characteristics of facilities, or the changing of its operations or procedures,
such substitution, change, elimination or rearrangement by one Party shall not
cause such Party's system to fail to comply with the Network Specifications and
Operating Standards, or will require any change to the other Party's system to
continue with the provision of the service hereunder. Notwithstanding any such
change, such Party shall continue to provide the other Party with the same Fiber
Exchange as was provided prior to the change, substitution, elimination or
rearrangement. Such Party initiating the change/rearrangement shall assume all
costs associated, if it's the case, with disconnecting or reconnecting the
Party's system in the event such Party substitutes, changes, eliminates or
rearranges any facilities used in providing service under this Agreement.
However, neither Party shall change out the System Connection facilities,
electronics, or physical routing of Fiber Exchange with prior notification to
the other Party. The notification shall detail the specifics of the proposed
change. Neither Party shall change the physical routing of Fiber Exchange
without the prior written consent of the other Party. The consent may be
withheld in the sole discretion of the Fiber Recipient if such change would
result in the loss of physical diversity by the Fiber Recipient.8.1
8.2 The characteristics and methods of operation of the circuits, facilities
or the equipment provided by the Parties under this Agreement, shall not
interfere with or impair the service over the facilities of the other Party or
its Affiliates, cause damage to their plant, impair the privacy of any
communications carried over their facilities or create hazards to their
employees, agents or the public.
8.3 Access to New Additions. Fiber Provider in its sole discretion may
---------------------------
construct one or more extensions to its Backbone Network and may offer to
provide Fiber Recipient additional fibers for its use as Fiber Exchange,
consistent with the terms of this Agreement. If Fiber Recipient seeks to use
such additional fibers, Fiber Recipient may submit to Fiber Provider a completed
form as specified in Exhibit H. Request for Route Change, with proposed
revisions to Exhibit A, and Fiber Provider shall not unreasonably withhold its
acceptance of the Request for Route Change.
Page 10 of 33
(a) Upon acceptance of the Request for Route Change by Fiber Provider, Fiber
Provider will undertake to extend the Fiber Recipient fibers to Fiber
Recipient's sites or new sites in accordance with the terms of this
Agreement. Fiber Provider and Fiber Recipient shall cooperate in providing
access to such sites so as to minimize any interference with the use of the
Fiber Recipient System, the Fiber Exchange, and Structures, to the extent
reasonably possible, by either Party and to avoid conflicting physically or
otherwise interfering with joint users of the Fiber Exchange, Fiber
Exchange accessories, Structures or any other property needed in the
installation, construction, maintenance or use of the Fiber Exchange. Any
such relocation, replacement, or rebuilding shall be accomplished
consistently with the Network Specifications and Operation Standards and
the Protocol of Acceptance.
(b) Upon acceptance of the Request for Route Change by Fiber Provider, Exhibit
B shall be revised to reflect the new Demarcation Points and Route, and,
subject to the terms mutually agreed upon by the Parties in the Request for
Route Change, the terms of this Agreement shall apply to such revised
Route.
8.4 If Telerunion decides to expand its fiber network buildout, they will
build the first 300 Kilometers in the cities not on the Avantel network. On
these new routes, Avantel will receive 4 fiber up to 300 kilometers of route as
part of this initial exchange.
8.5 Relocation, Replacement, Removal or Rebuild of Fiber Exchange
--------------------------------------------------------------------
(a) In the event that Fiber Recipient requests relocation, replacement, or
rebuild of the portion of the Fiber Exchange, Fiber Recipient shall submit
to Fiber Provider a completed form as specified in Exhibit [H], Request for
Route Change, to request an acceptable new location, and Fiber Recipient
shall Exchange Fiber with or pay Fiber Provider its actual costs of any
such work, provided such costs are agreed to in advance and are reasonable.
Fiber Provider and Fiber Recipient shall cooperate in performing such
relocation, replacement, or rebuilds so as to minimize any interference
with the use of the Fiber Recipient System, the Fiber Exchange, and
Structures, to the extent reasonably possible, by either Party and to avoid
conflicting physically or otherwise interfering with joint users of the
Fiber Exchange, Fiber Exchange accessories, Structures or any other
property needed in the installation, construction, maintenance or use of
the Fiber. Any such relocation, replacement, or rebuilding, shall be
accomplished consistently with the Network Specifications and Operation
Standards and the Protocol of Acceptance.
(b) In the event that during the Term of this Agreement Fiber Provider is
required by public authorities, or lawful order or decree of a regulatory
agency or court to relocate, replace, remove or rebuild all or a portion of
the Fiber Exchange provided to the Fiber Recipient the cost of any such
work including the costs of relocation of Equipment and new Connections to
the Fiber Exchange, shall be shared on a Pro Rata basis between Fiber
Recipient and Fiber Provider. If the relocation, replacement, removal, or
rebuilding of the Fiber Exchange is requested or caused by a party who is
not a public authority, agency or court, Fiber Provider shall attempt to
obtain reimbursement of Fiber Provider's costs from said Third party. Fiber
Provider and Fiber Recipient shall cooperate in performing such relocation,
replacement, removal, or rebuilding so as to minimize any interference with
the use of the Fiber Exchange provided to Fiber Recipient, the Fiber
Exchange and Structures, to the extent reasonably possible, and to avoid
conflicting physically or otherwise interfering with joint users of the
Fiber Exchange, Fiber Exchange accessories, Structures or any other
property needed in the installation, construction, maintenance or use of
the Fiber. Any such relocation, replacement, removal, or rebuilding shall
be accomplished consistently with the Network Specification and Operation
Standards and the Protocol of Acceptance.
Page 11 of 33
ARTICLE IX. INSURANCE
Throughout the term of this Agreement, Avantel and Telereunion shall insure the
portions of fiber to be exchanged, against such risks and for such amounts and
subject to such deductibles as is customary in the telecommunications industry
and is reasonably acceptable to both Parties.
ARTICLE X. PRICING STRUCTURE
10.1 As specified herein, this Agreement contemplates that Telereunion and
Avantel each, as a Fiber Provider, shall make available to the other, and
Telereunion and Avantel each, as a Fiber Recipient, shall be entitled to receive
and use the Fiber Exchange specified in Exhibit A hereto. Accordingly, except
as provided in Section 7.1 hereof, neither Party, as a Fiber Provider, shall
assess the other, as a Fiber Recipient, a charge or fee for any Fiber Exchange
used by a Fiber Recipient pursuant to this Agreement. There may be charges
associated with excess swap units, as specified in the swap Exhibit B. Unless
mutually agreed upon, there will be no charges for floor space, power,
maintenance, or environmental conditioning expenses associated with System
Connections. Responsibility for costs associated with any future System
Connections will be defined and agreed between Telereunion and Avantel prior to
installation of any such System Connection. Neither Party shall be responsible
for charges not mutually agreed to in writing, in advance, by such Party.
10.2 All the agreed-to amounts invoiced under this Agreement shall be paid
within thirty (30) business days after the date of receipt of the invoice. If a
Party shall dispute in good faith the amount of any such invoice, the disputing
Party shall pay the portion which is not being disputed in such invoice. The
disputed portion of the invoice must be attached together with a written
explanation of the reasons for the dispute. A Late Payment Charge of the Mexican
Inter Bank rate plus 5% may be imposed on undisputed past due amounts.
ARTICLE XI. OWNERSHIP AND TAXES
11.1 Each Fiber Provider will at all times have title of ownership to the
fiber, Fiber Exchange accessories, any property installed or constructed on
Structures, and Structures that are a part of its network while, each Fiber
Recipient shall be deemed to have an indefeasible right of use of such assets
needed to make use of the Fiber Exchange while this Agreement is valid. By no
means, this Agreement shall constitute an encumbrance of the assets
abovementioned.
Page 12 of 33
11.2 Income Taxes. Each Party will be responsible for paying its own
-------------
existing or future Federal, state and local income, franchise and/or the similar
existing or future taxes imposed on business activities or entities.
11.3 Sales Taxes. Telereunion and Avantel agree that Fiber Recipient shall
------------
pay for all sales, use and excise taxes, if any, related to the service provided
under this Agreement and any other taxes which are by the terms of the relevant
statute or ordinance imposed upon the entity receiving the services provided
under this Agreement; provided that, where permitted, the Fiber Recipient may
provide sale or resale exemption certificates to the Fiber Provider. In no
case, shall a Fiber Recipient be responsible for any income taxes levied upon
the Fiber Provider's income, including any gross receipts taxes assessed in lieu
of income or property taxes; provided that, if the terms of the relevant statute
or ordinance imposes such tax upon the person receiving the services provided
under this Agreement, then the Fiber Recipient shall be liable for such tax.
Anything to the contrary in this Paragraph 11.3 notwithstanding, either
Telereunion or Avantel shall be entitled to protest and/or contest by
appropriate proceedings any such tax for which it may be liable hereunder;
provided, however, if either Party shall pursue any such protest and/or the
other Party suffers or incurs damages as a result thereof, THE PARTY PURSUING
THE PROTEST SHALL INDEMNIFY THE OTHER PARTY AGAINST ANY SUCH RELATED DAMAGES,
CLAIMS OR JUDGMENTS, INCLUDING, WITHOUT LIMITATION, ANY LIENS OR ATTACHMENTS.
11.4 Property and Other Taxes and Fees. Fiber Provider shall pay all
--------------------------------------
existing or future federal, state or local excise, ad valorem, property or
similar taxes or any similar fees such as license fees or user fees imposed on
Fiber Provider or its Affiliates, which are attributable to the presence of
fiber, including Fiber Exchange provided to Fiber Recipient, Fiber Exchange
accessories, or Equipment on Structures or the construction on new Structures.
11.5 Levy. Fiber Provider agrees that Fiber Provider will properly remit all
----
tax payments in a timely manner to the applicable taxing authorities or
governmental agencies and will not cause the Fiber Exchange to be levied,
attached, or otherwise encumbered by any taxing authority or governmental agency
through any failure to remit such payments.
ARTICLE XII. GOVERMENT APPROVALS, PERMITS, AND CONSENTS
12.1 In executing this Agreement Avantel and Telereunion represent that they
will obtained all approvals and consents, if necessary, that may be required
from all federal, state, and local government authorities having appropriate
jurisdiction regarding the Fiber Exchange between the Parties, and the Parties
ownership, installation, maintenance, or replacement of the facilities necessary
to provide such Fiber Exchange between Avantel and Telereunion.
Page 13 of 33
12.2 Notwithstanding the foregoing, if Fiber Provider is prohibited from
furnishing the Fiber Exchange provided for in this Agreement or if any material
rate or term contained herein is substantially changed to the detriment of Fiber
Recipient by ruling, regulation, statute, or order of the highest court of
competent jurisdiction to which the matter is appealed, then Fiber Recipient and
Fiber Provider will work together in good faith to resolve or modify any rate or
term to comply with the new rules or regulations.
12.3 Fiber Provider shall indemnify Fiber Recipient, its employees,
officers, agents and assigns for any liability, claims or compliance costs
arising out of any material breach of the foregoing representations.
ARTICLE XIII. LIENS
13.1 Neither Party shall in any way encumber or cause to be encumbered the
Fiber Exchange, without the prior notice and consent of the other Party.
13.2 If, notwithstanding the above, any property of Fiber Recipient or its
Affiliates becomes encumbered by any unauthorized liens, claims, or other
encumbrance as a result of any act or omission of Fiber Provider, Fiber Provider
shall to the fullest extent permitted by law take all actions necessary to
remove such encumbrances from Fiber Provider's and its Affiliates property. If
the property of Fiber Recipient or its Affiliates becomes encumbered as a result
of the acts or omission of Fiber Provider, Fiber Provider shall, in addition to
all other available legal, equitable, and administrative rights or remedies, (i)
discharge the encumbrance as soon as possible, but not later than (30) days; and
(ii) indemnify and hold harmless Fiber Recipient and its Affiliates and their
officers, directors, employees, agents, servants, and assigns from said
encumbrance.
ARTICLE XIV. INDEMNITY
14.1 Telereunion and Avantel (the "Indemnitor") shall, to the fullest extent
permitted by law, to indemnify, defend, protect and hold harmless Telereunion or
Avantel, as the case may be, (the "Indemnitee"), its employees, officers,
directors and agents, from and against any liability for any injury to any
person (including death) or any loss or damage to any property or facilities of
any entity (including that of the Indemnitee or any other Party) arising out of
or resulting in any way from the acts or omissions, negligent or intentional, of
the Indemnitor, its officers, employees, servants, affiliates, agents or
contractors.
14.2 Telereunion and Avantel (the "Indemnitor") shall, to the fullest extent
permitted by law, assume, protect, defend, indemnify, and save harmless the
other (the "Indemnitee"), its directors, officers, employees, and agents from
and against any and all claims or suits of any kind whatsoever, and any and all
attendant expense, including attorney's fees and court costs for libel, slander
or invasion of privacy, or based on the infringement or violation of the right
of any person under any patent, trademark, trade secret, or copyright, arising
out of, occurring in, or in connection with, the manufacture, sale, combining or
use of any equipment or materials used by the Indemnitor in providing service
pursuant to this Agreement.
Page 14 of 33
14.3 Telereunion and Avantel (the "Indemnitor") shall, to the fullest extent
permitted by law, indemnify, defend and hold harmless the other Party (the
"Indemnitee"), its employees, officers, directors and agents from and against
any and all losses, liabilities, damages and expenses (including without
limitation costs of judgment and attorney's fees) arising from or related to
claims, actions or proceedings of the Indemnitor's customers or the Indemnitor's
End Users for errors, omissions, delays or interruptions in the service provided
under this Agreement, and all other claims arising out of any act or omission of
the Indemnitor or any End User of the Indemnitor in the course of using services
provided pursuant to this Agreement.
14.4 The indemnification obligations of this Article IV shall survive the
termination and/or expiration of this Agreement for one (1) year for any claim
or action, which accrues during the term of this Agreement.
ARTICLE XV. BREACH
15.1 Definition. If Avantel or Telereunion shall fail to perform (whether
----------
any such failure shall arise as the result of the voluntary or involuntary
action or inaction of such Party), in any material respect, any of its
obligations set forth in this Agreement, including without limitation any
violation of law (which is material and which adversely affects either Party's
obligations under the Agreement), and such failure is not excused by any
provision of this Agreement and continues un-remedied for a period of 30 days
following written notice from the non-breaching Party or such shorter period as
may apply under law (the "Cure Period"), then such failure shall, upon and from
the expiration of the Cure Period, constitute a "Breach". Such Breach shall not
be deemed to occur where Breach is directly or primarily caused by the actions
of another Party.
15.2 Consequences and Remedies. In the event Avantel or Telereunion is in
--------------------------
Breach, Avantel or Telereunion shall have the right, after providing
Avantel/Telereunion with written notice and without prejudice to any other right
the Parties may have, to exercise all or any of the following remedies, provided
that such remedies may not be exercised earlier than 20 (twenty) days after
Avantel/Telereunion receives such written notice, and provided further that with
respect to (b), such remedy may not be exercised if Avantel/Telereunion has
either remedied the default within such 20 (twenty) day period or, if the
default is not capable of being remedied within such time, Avantel/Telereunion
has commenced to remedy the default within such time and is diligently pursuing
efforts to effect such a remedy, including submittal of a remediation plan
reasonably acceptable to Avantel/Telereunion for its review and approval: (a)
suspend any obligation in whole or in part under this Agreement until the
default has been remedied and/or (b) terminate the Agreement with no further
obligations or liability to then Parties hereunder and collect from the
breaching Party a penalty of US$10,000,000 (ten million dollars, currency of the
United States of America).
Page 15 of 33
15.3 Limitation of Liability. Neither Party shall be liable to the other
-------------------------
for any indirect, special, punitive, or consequential damages, or any lost of
business damages in the nature of lost revenues or profits arising under this
Article or arising out of any act or omission of its respective employees,
agents or contractors. NOTHING IN THIS SECTION SHALL MAKE EITHER PARTY LIABLE
TO THE CUSTOMERS OR CONTRACTORS OF THE OTHER PARTY FOR ANY DAMAGES, WHETHER IN
CONTRACT, TORT, OR OTHERWISE FOR ANY OF THE PARTIES' ACTS OR OMISSIONS
ASSOCIATED WITH THIS AGREEMENT.
ARTICLE XVI. TERM
16.1 The initial term of this Agreement shall be fifteen (15) years
commencing when the Parties' Fiber Exchange (as defined herein) have been fully
installed and tested and each Party has completed and delivered to the other a
Commencement/Acceptance Notice in the form of Exhibit F hereto (the "Service
Acceptance Date"). Neither Party may commence revenue-generating use of a Fiber
Exchange received by it until the other Party accepts the Fiber Exchange that it
provides in return.
16.2 The term of service for individual Exchanges may be modified upon a
mutual written agreement. Any Party shall have the right to request to renew
this Agreement upon giving notice thereof; to the other Party not less than
three hundred sixty five (365) days prior to the expiration of the initial term
hereof. Upon agreement by both Parties this Agreement shall be extended for an
additional ten [10] year term.
ARTICLE XVII. FORCE MAJEURE
17.1 Neither Party shall be liable for any breach of this Agreement due to
any cause beyond its reasonable control ("Force Majeure") including, without
limitation, any act of God, insurrection or civil disorder, war or military
operation, national or local emergency, acts or omissions of government highway
authority or other competent authority, compliance with any statutory or
executive order, industrial disputes of any kind (whether or not involving any
Party's employees), fire, lightning, explosion, flood, earthquake, subsidence,
weather of exceptional severity, acts or omissions of persons or entities for
whom or for which neither Party is responsible including without limitations
others Mexican Public Telecommunications Operators in their capacity as such
provided that a Party shall be excused from liability under this Article VI
during the tendency of a Force Majeure event. Avantel and Telereunion shall have
the right to deem as an event of Force Majeure any failure by Avantel and
Telereunion respectively to provide to the other and its personnel any
information necessary to the performance of its obligations under this
Agreement.
Page 16 of 33
17.2 Telereunion or Avantel shall promptly notify the other of the
occurrence of any Force Majeure event which has caused or is likely to cause it
to fail to perform its obligations under this Agreement
ARTICLE XVIII RESOLUTION OF DISPUTES
18.1 Any dispute arising out of or relating to this Agreement, including the
breach thereof, between the Parties, which is not settled to the mutual
satisfaction of such Parties within 30 (thirty) days (or such longer period as
may be mutually agreed upon) from the date that either Party informs the other
in writing that such a dispute or disagreement exists (the "Settlement Period")
shall be settled by arbitration in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce ("ICC Rules"), as modified
by this Agreement. The arbitration shall be carried out by a panel of 3 (three)
arbitrators who shall be fluent in Spanish and English, one (1) to be designated
by Avantel, one (1) to be designated by Telereunion, and the third one to be
designated by the two Party-appointed arbitrators; provided, however, that if no
agreement is reached between the Party-appointed arbitrators within a period 15
(fifteen) days of the date the last Party-appointed arbitrator was designated,
the third arbitrator shall be designated in accordance with the ICC Rules. The
Parties shall have a period of 15 (fifteen) days from the date the Settlement
Period has expired to designate their respective arbitrators.
18.2 Any such arbitration shall be conducted in English and the location of
the arbitration hearings shall be Mexico City, Federal District, or another
location mutually agreed upon by the Parties. The final award of the arbitration
panel shall be final and binding upon Avantel and Telereunion. The cost of
arbitration, including the fees and expenses of the arbitrators shall be borne
equally by the Parties unless the arbitration award provides otherwise.
18.3 The arbitration award may be confirmed and enforced in any court of
competent jurisdiction and the Parties specifically agree that confirmation and
enforcement of an award shall be governed by the U.N. Convention on the
Recognition and Enforcement of Foreign Arbitral Awards and/or the Inter-American
Convention on International Commercial Arbitration of 1975
ARTICLE XIX. CONFIDENTIALITY
19.1 All technical information, specifications, drawings, documentation and
know-how of every kind and description identified as confidential and marked
with an appropriate legend or, if oral confirmed in writing within twenty (20)
calendar days, which is disclosed by either Party to the other under this
Agreement ("Confidential Information"), except, insofar as it may be previously
known or insofar as it may be in the public domain or be established to have
been independently developed and so documented by the other Party, or obtained
by the other Party from any person not in breach of any confidentiality
obligations to the disclosing Party, is the exclusive property of the disclosing
Party, and the other Party, except as specifically authorized in writing by the
disclosing Party, or as permitted hereunder, shall (a) not reproduce
Confidential Information except to the extent reasonably required for the
performance of this Agreement, not divulge Confidential Information in whole or
in part to any third Parties, and (b) use Confidential Information only for
purposes necessary for the performance of this Agreement or as may be required
to the performance of this Agreement. This obligation shall survive the
termination of this Agreement. Each Party shall disclose Confidential
Information only to those of its employees, subcontractors and agents who shall
have a "need to know" the Confidential Information for the purposes described
herein after first making such employees, subcontractors or agents aware of the
confidentiality obligations set forth above.
Page 17 of 33
19.2 The Parties shall not make news releases, publicize or issue
advertising pertaining to the Agreement, without first obtaining the written
approval of each other.
19.3 The Parties agree not to use the Avantel/Telereunion trademarked logo
or any other intellectual property of the Parties, without first obtaining
written permission from each other.
19.4 Neither Party shall disclose to any third Party during this Agreement,
or during the three (3) year period thereafter, any of the terms and conditions
set forth in this Agreement unless such disclosure is lawfully required by any
federal governmental agency both in the United States and Mexico or is otherwise
required to be disclosed by law, including United States Securities Law or is
necessary in any proceeding establishing rights and obligations under this
Agreement; provided that, prior to such disclosure, the disclosing Party shall
notify in writing to the other Party that such request has been made and, to the
extent reasonably practicable, shall afford the other Party the opportunity (at
the other Party's expense) to interpose an objection or to take action to ensure
confidential handling of the confidential information in the event that
disclosure is lawfully required. This Agreement and all network test results or
other system performance information shall be considered proprietary and
confidential whether or not marked as such.
ARTICLE XX. RELATIONSHIP OF PARTIES
The relationship between the Parties shall not be that of partners or agents or
joint ventures for one another and nothing contained in this Agreement shall be
deemed to constitute a partnership or agency agreement between them. Each
Party, in performing any of its obligations hereunder, shall be an independent
contractor and shall discharge its contractual obligations at its own risk.
ARTICLE XXI. GOVERNING LAW
This Agreement, and all questions concerning the execution, validity or
invalidity, capacity of the Parties, and performance or breach of this
Agreement, shall be governed by and construed in all respects, without regard to
principles of conflict of laws, in accordance with the laws of Mexico.
Page 18 of 33
ARTICLE XXII. GENERAL PROVISIONS
22.1 Assignment. This Agreement shall be binding on both Telereunion and
----------
Avantel and its respective successors and assigns. Neither Party will assign
this Agreement without the prior written consent of the other, except if the
assignment is given to an Affiliate, in case the consent shall not be
unreasonably withheld.
22.2 Waiver. No waiver of any provision of this Agreement in any instance
------
shall constitute a waiver of any other provision of this Agreement or of the
same provision in any other instance, and waiver of a breach of any provision of
this Agreement shall not constitute a waiver of any other breach of such
provision or breach of any other provision of this Agreement.
22.3 Neither company share swap or exchange fiber, waveguides or STM1s on
the initial 4 fibers with any other company for any reason. Beyond this
restriction of use, there shall exist no other conditions or restrictions of use
of fiber, including the sell of transmission of capacity to a Third Party, as
long as it is used in compliance with all laws and regulations of the Country of
Mexico and within the authorized scope the respective carrier concession.
22.4 No Third Party Beneficiaries. Nothing contained in this Agreement
-------------------------------
either intentionally or unintentionally creates any rights or entitlements in
any Party not a signatory to this Agreement, including affiliates of the
Parties, or any other Party claiming to be a third Party beneficiary hereto.
22.5 Entire Agreement. This Agreement constitutes the entire agreement
-----------------
between the Parties with respect to its subject matter, and as to all other
representations, understandings or agreements which are not fully expressed
herein. No amendment to this Agreement shall be valid unless in writing and
signed by both Parties.
22.6 Terminology. Words having well-known technical or trade meaning shall
-----------
be so construed. All listings of items shall not be taken to be exclusive, but
shall include other items, whether similar or dissimilar to those listed, as the
context reasonably requires.
22.7 Cumulative Remedies. Except as set forth to the contrary herein, any
--------------------
right or remedy of either Party shall be cumulative and without prejudice to any
other right or remedy, whether contained herein or not.
22.8 Headings. All headings used herein are for index and reference only,
--------
and are not to be given substantive effect.
Page 19 of 33
22.9 Additional Actions and Documents. Each of the Parties hereby agrees
--------------------------------
to take or cause to be taken such further actions, to execute, acknowledge,
deliver and file or cause to be executed, acknowledged, delivered and filed,
such further documents and instruments, and to use its best efforts to obtain
such consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement, whether
at or after the execution of this Agreement.
22.10 Prior Agreements; Modifications. This Agreement and the Exhibits
---------------------------------
hereto constitute the entire Agreement between the Parties with respect to the
subject matter hereof, and supersede all previous understandings, commitments,
or representations concerning the subject matter. All Exhibits form part of,
and are integral to, this Agreement, and any reference to this Agreement
includes reference to any and all Exhibits hereto. Each Party acknowledges that
the other Party has not made any representations other than those that are
contained herein. This Agreement may not be amended or modified in any way, and
none of its provisions may be waived, except by a writing signed by an
authorized officer of the Party against whom the amendment, modification or
waiver is sought to be enforced.
22.11 Conflict and Precedence. In the event of a conflict between the
-------------------------
provisions of this Agreement and those of any Exhibit, unless the provisions of
the Exhibit expressly take precedence over the provisions of this Agreement, the
provisions of the Agreement shall prevail and such Exhibits shall be corrected
accordingly. Each Exhibit to be attached to this Agreement subsequent to the
original execution of the Agreement shall be dated, subscribed to by the Parties
and identified with this Agreement.
22.12 Liability for Negligence or Willfulness. Telereunion and Avantel
-------------------------------------------
shall be liable to each other for damage or loss to any property or persons to
the extent that such damage or loss is caused by the negligent or willful act or
omission of such Party, its officers, employees, servants, agents, affiliates or
contractors. Telereunion and Avantel shall not be liable to each other for
damage or loss to any property or persons to the extent that such damage or loss
is caused by the malfunction of any equipment supplied by such Party (or that of
its representative or provider of local access service) which is connected to
the other Party's System.
22.13 Standards of Work Performance. Each Party will perform its
--------------------------------
obligations hereunder in such a manner that its performance does not violate any
Laws and Regulation.
22.14 Language. This Agreement will be executed in both Spanish and
----- - --------------------------------------------------------
English, and in case of any discrepancy or disagreement between such versions,
--------------------------------------------------------------------------------
the Spanish version will prevail.
-------------------------------------
Page 20 of 33
ARTICLE XXIII. NOTICES
23.1 All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be given in writing by either
Party to the other by (a) prepaid registered air mail, return receipt requested,
(b) express mail (Federal Express, DHL or similar service) or (c) cable, telex,
telegraph or facsimile transmission, confirmed by prepaid registered air mail,
return receipt requested, or express mail, all of which shall be addressed to
the respective Parties at the address shown bellow. The address or addressee of
either Party may be changed at any time by written notice to the other of such
change. Any notice in the form of a letter deposited by either Party through any
of the means detailed herein above shall be deemed to have been given and
received by the other Party upon actual receipt thereof.
If to Avantel:
---------------
Ing. Xxxx Xxxxx Xxxxxxx Maqueo
Chief Financial Officer
Avantel, S.A.
Ave. Paseo de la Reforma 265-7th Floor
Col. Xxxxxxxxxx
00000 Xxxxxx, D.F.
Fax (000) 000-0000
With a copy to:
Xxxx Xxxxxxx xx Xxxxxxxxxx, Esq.
Director of Legal Affairs
Avantel, S.A.
Ave. Paseo de la Reforma 265-6th Floor
Col. Xxxxxxxxx
00000 Xxxxxx, D.F.
Fax (000) 000-0000
If to Telereunion:
-------------------
Mr. Xxxxx Xxxxxx
Legal Representative
Telereunion, S.A. de C.V.
Tlacoquemecatl Xx. 00
Xxx. Xxx Xxxxx 00000.
Mexico, D.F.
Phone. (000) 000-0000
Fax. (525) (000) 000-0000
With a copy to:
Telscape International, Inc.
Attention: Xxxxx X. Xxxxxxxx, Esq.
Vice-President and Corporate Counsel
Phone. (000-000) 000-0000
Fax. (000-000) 000-0000
Page 21 of 33
Notices under this Agreement which are telephonic shall be made to the Parties'
respective Network Surveillance or Network Operating Control Centers at the
telephone numbers listed in Exhibit F.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first set forth above.
Avantel, S.A.
By:
Name: Xxxx Xxxxx Xxxxxxx Maqueo
Title: Legal Representative
Telereunion, S.A. de C.V.
By:
Name: Xxxxx Xxxxxx
Title: Legal Representative
Page 22 of 33
E x h i b i t s
Exhibit A: Terms and Conditions for the Fiber Exchange Service/Memorandum of
Understanding signed by both Telereunion and Avantel on
March 4, 1999.
Exhibit B: Procedures for System Connection and LEC Cross-Connections
Exhibit C Specific if Collocation Space and Standards
Exhibit D: Network Specifications and Operating Standards
Exhibit E: Protocol of Acceptance
Exhibit F: Contact/Escalation List
Exhibit G: Certificate of Acceptance of Exchange Fiber
Exhibit H: Request for Route Change
Exhibit I: Maintenance Specifications
Page 23 of 33
EXHIBIT A TO FIBER OPTIC TELECOMMUNICATIONS EXCHANGE AGREEMENT
This Exhibit A is made this 14 day of May, 1999 to that certain Fiber Optic
Telecommunications Exchange Agreement made by and between Telereunion and
AVANTEL, S.A. ("Avantel"), dated May 14, 1999.
Page 24 of 33
MEMORANDUM OF UNDERSTANDING
Page 25 of 33
EXHIBIT B
PROCEDURES FOR SYSTEM CONNECTIONS AND LEC CROSS-CONNECTIONS
Page 26 of 33
EXHIBIT C
SPECIFICATION OF COLOCATION SPACE AND STANDARDS
Collocations at POPs will be done in common facilities in caged spaces. Access
will be granted on a 7x24 hour basis. Like collocation space will be provided
as part of the fiber exchange. Collocation needs in addition to the basic needs
may be provided at additional cost per a separate contractual arrangement. At
each site a Telmex telco demarc room will be provided for the Fiber Recipient to
provide for receipt of Telmex facilities for non-interconnection services. This
room will meet Telmex requirements and be in addition to the first room.
Collocations at Regenerator sites will be provided on a shared rack basis. Rack
shall be secure, enclosed and locked. Access will be granted on an escorted
7x24 hour basis. An administrative fee may be charged for access to unmanned
sites or access to sites during non-working hours. Access to unmanned sites or
sites during non-working hours must be granted on a 7x24 hour basis with a
maximum delay of 2 hours from time of request.
[SPECIFIC SITE ENGINEERING AND STANDARDS MUST BE FURTHER DEFINED IN WRITTEN AND
INCLUDED INTO THIS DOCUMENT.]
Page 27 of 33
EXHIBIT D
NETWORK SPECIFICATIONS AND OPERATING STANDARDS
Page 28 of 33
EXHIBIT E
PROTOCOL OF ACCEPTANCE
Page 29 of 33
EXHIBIT F
CONTACT/ESCALATION LIST
Page 30 of 33
EXHIBIT G
CERTIFICATE OF ACCEPTANCE OF EXCHANGED FIBER
To: Relationship Manager of Telereunion [Avantel]
From: Relationship Manager of Telereunion [Avantel]
Date:
Re: Acceptance of Exchanged Fiber
This will confirm that [specify identified exchange] has been tested and found
to be operational and to meet the Network Specifications and Operating Standards
set forth in the Fiber Optic Telecommunications Service Exchange Agreement,
dated ____________ ___, 1998 by and between Telereunion and Avantel, S.A.
Telereunion
By_________________________________
Name:
Title:
OR
Avantel, S.A.
By__________________________________
Name:
Title:
Page 31 of 33
EXHIBIT H
REQUEST FOR ROUTE CHANGE
Request No.:
Date:
To: **** Communications, Inc. [Fiber Provider]
In accordance with the terms of the Agreement between **** Communications, Inc.
and [Fiber Recipient] dated ____________ request is hereby made for:
_____ Access to new additions
_____ Relocation, replacement, rebuild of Fiber Recipient Fibers
as indicated on the attachment(s) hereto.
____________________________,
[Fiber Recipient]
Name:
By:
Title:
Such change of Route as specified in the attachment(s) has been accepted and
shall be incorporated into, and subject to the terms of, the Agreement.
[Fiber Provider]
Name: __________________
By: ____________________
Title: _______________________
Page 32 of 33
EXHIBIT I
MAINTENANCE SPECIFICATIONS
Page 33 of 33
