EXHIBIT 10.20*
* Confidential treatment has been requested in connection with this document.
IRU AGREEMENT
THIS IRU AGREEMENT (the "Agreement") is made and entered into as of this
30th day of December, 1999 ("Effective Date"), by and between QWEST
COMMUNICATIONS CORPORATION, a Delaware corporation ("Qwest"), and PRIMUS
TELECOMMUNICATIONS, INC., a Delaware corporation ("Customer").
RECITALS:
WHEREAS, Qwest owns and operates a fiber optic telecommunications network
between various points in the United States; and
WHEREAS, Customer desires to obtain certain indefeasible rights of use to
certain telecommunications capacity to be provided by means of Qwest's domestic
fiber optic telecommunications network; and
WHEREAS, Qwest desires to hereby grant and Customer desires to be granted
certain indefeasible rights of use to such capacity as more fully set forth
herein; and
WHEREAS, the parties previously entered into a separate IRU Agreement dated as
of September 14, 1998, which was superceded by a separate IRU Agreement dated as
of September 30, 1999 (collectively, the "Prior Agreement") all of which will
terminate upon the Effective Date of this Agreement, as more fully described
herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows.
1. DEFINITIONS
The following terms shall have the meanings set forth in this Article when used
in this Agreement, unless explicitly stated to the contrary:
1.1 "Affiliate" means any person, which directly or indirectly controls or is
controlled by, or is under common control with, a party hereto.
1.2 "Capacity" means the digital transmission capability of a given portion of
the Qwest Network designed to transmit digital signals at a stated rate and
otherwise perform in accordance with the specifications applicable to the
portion of the Qwest Network utilized to provide the Capacity. All Capacity
shall be provided by Qwest Network facilities inclusive of all electronics and
other equipment necessary for the intended operation of the Capacity; provided,
however, that interruptions, outages, or degradations in the actual transmission
capability of the Capacity may occur from time to time.
1.3 "Gross-connect Panel" means the piece of equipment designated by Qwest in a
Qwest POP at which the IRU is terminated and at which location Customer may have
access to and interconnect with the IRU through use of Local Distribution
Facilities or other facilities acceptable to Qwest.
1.4 "Delivery" of an IRU means that the applicable IRU will be available for
use at the Cross-connect Panels designated by Qwest hereunder and will perform
in accordance with the Technical Specifications attached hereto.
1.5 "Impositions" means all taxes, fees, levies, imposts, duties, charges or
withholdings of any nature (including, without limitation, gross receipts taxes
and franchise, license and permit fees), together with any penalties, fines, or
interest thereon arising out of the transactions contemplated by this Agreement
and/or imposed upon either party hereto by any federal, state or local
government or other public taxing authority of any country.
1.6 "Indefeasible Right of Use" or "IRU" means an indefeasible right of use, "as
is and where is," for the purposes described herein, in the amount of Capacity
on the Qwest Network for each User Route set forth herein; provided, that the
applicable IRU(s) granted hereunder do not provide Customer with any ownership
interest in or other rights to physical access to, control of, modification of,
encumbrance in any manner of, or other use of the Qwest Network except as
expressly set forth herein.
1.7 "Local Distribution Facilities" means those telecommunications transmission
facilities which interconnect with the applicable IRU at a Cross-connect Panel
and extend each User Route of the applicable IRU to a location outside of the
Qwest POP. Unless otherwise specified herein, such Local Distribution Facilities
shall be separately acquired by Customer and may be provided by a local
telephone company or other third party, and must comply with Qwest's reasonable
applicable engineering and operations requirements. Local Distribution
Facilities are not part of the IRU(s) acquired by Customer hereunder, and
Customer's acceptance of each IRU granted hereunder may not be conditioned upon
the availability of such Local Distribution Facilities.
1.8 "OC-3" means a dedicated, point to point, high capacity, full duplex channel
along the Qwest Network with a line speed of approximately 155.52 million bits
per second synchronous serial data.
1.9 "OC-12" means a dedicated, point to point, high capacity, full duplex
channel along the Qwest Network with a line speed of approximately 622 million
bits per second synchronous serial data.
1.10 "OC-48" means a dedicated, point to point, high capacity, full duplex
channel along the Qwest Network with a line speed of approximately 2488 million
bits per second synchronous serial data.
2
1.11 "POP" means the Qwest terminal facility (point of presence) where the
Capacity subject to an IRU is delivered to Customer.
1.12 "Qwest Network" means the fiber optic telecommunications network operated
by Qwest in the United States, including at the election of Qwest such
telecommunications capacity as Qwest may obtain from another network provider
and integrate into its own network for purposes of providing services or
Capacity to its customers. Although Qwest possesses telecommunications network
facilities and capacity in locations other than the United States, such network
facilities and capacity are not part of the Qwest Network for purposes of this
Agreement.
1.13 "User Route" means the route along which each digital private line circuit
is placed by Qwest on the Qwest Network, as more particularly described in
Exhibit A hereto. For operational and maintenance purposes only, Qwest reserves
the right to alter temporarily each applicable User Route, provided that such
alterations do not result in changes to the endpoints (POPs) of the applicable
User Route.
1.14 "V&H Miles" is a measurement of the length in miles between the termination
points of a User Route using airline miles and determined based on the vertical
and horizontal geographic coordinates of the locations of the termination
points.
2. GRANT OF IRU(S) IN QWEST NETWORK
2.1 For each of the User Routes set forth in Exhibit A hereto, Qwest hereby
grants to Customer an IRU to OC-3 or OC-12 Capacity (as specified on Exhibit A).
*2.2 The IRU(s) described above shall be delivered to Customer at a Cross-
connect Panel located in each of the Qwest POPs in the cities identified in
Exhibit A. On a "where available, preferred vendor" basis and for the purpose of
utilizing the IRUs granted hereunder, Customer shall be entitled to necessary
space of up to approximately five hundred (500) square feet at each of the
Qwest's POPs identified in Exhibit A to co-locate Customer's equipment. For each
co-location site requested by Customer hereunder, Customer agrees to execute a
co-location agreement substantially in the form appended hereto as Exhibit D. In
the event Qwest does not have available co-location space during the Waiver
Period to satisfy Customer's co-location requirements, then Qwest will
coordinate with Customer to provide alternative co-location space with a third
party provider. Qwest shall reimburse Customer for said alternative co-location
costs, up to an amount not to exceed Qwest's standard cost for comparable co-
location services, until the earlier of: (i) the date upon which Qwest can make
available the requested co-location space; or (ii) April 1, 2002. It shall be
the responsibility of Customer to obtain any required Local Distribution
Facilities to interconnect with each of the IRU(s) granted herein.
2.3 *
3
2.4* In consideration of the purchase of the Capacity hereunder, Qwest also
agrees to exchange TCP/iP routing information and traffic with Customer (on a
private peering basis), at agreed upon interconnection points, excluding third
party transit services. For purposes hereof, "transit" shall mean the exchange
of routing information and traffic which has neither a source nor a destination
on the transit provider's Internet network. Any Customer interconnection or
other costs associated with said peering fights shall be borne by Customer.
2.5 Qwest agrees to make available for purchase by Customer, an additional IRU
grant in STM-4 Capacity on the AC-1 Cable with landing points at New York, N.Y.
and London, England. The purchase price for said additional Capacity shall be *,
plus mutually agreeable O&M fees. The Parties agree to execute a mutually
acceptable IRU agreement for the purchase of said additional Capacity within
ninety (90) days of the Effective Date of this Agreement.
3. CONSIDERATION FOR GRANT OF THE IRU(S)
3.1 In consideration of the grant of each IRU described in Section 2.1 above by
Qwest to Customer, Customer agrees to pay to Qwest each of the IRU fees set
forth in Exhibit A to this Agreement, subject to a credit of Five Million Five
Hundred Ninety Six Thousand Eight Hundred Nineteen and 20/1 00 Dollars
($5,596,819.20) which is due Customer for Qwest's repurchase of the IRU User
Routes identified in Exhibit A (provided however that this credit is due
Customer only after it pays in full, pursuant to the schedule therein, all
balances remaining due under the Prior Agreement, which payment obligation shall
expressly survive the termination of the Prior Agreement), said credit balances
to be applied to the final payment obligation set forth in this Agreement. Other
than as expressly provided for herein, there shall be no further liability on
the part of either party on account of the Prior Agreement. Notwithstanding
anything to the contrary contained herein, Customer shall have the option to pay
the applicable IRU fees as follows: *.
3.2 For the Term (as defined below) of the granted IRU(s), Customer shall also
pay to Qwest a monthly recurring operation and maintenance charge (the "O&M
Charge") calculated at the rate of * per DS-0 V&H Mile due beginning * following
the Acceptance Date of each such IRU and continuing each month thereafter for
the duration of the Term. *.
4. DELIVERY AND ACCEPTANCE TESTING OF CUSTOMER CAPACITY
4
4.1. The IRUs identified in the Prior Agreement have been previously fully
provisioned to and accepted by Customer under the Prior Agreement. The
Acceptance Date for such IRUs shall remain the same as under the Prior
Agreement; however, the O&M charges shall be modified to reflect the terms of
this Agreement. As of the Effective Date, such IRUs shall be migrated to and
governed exclusively by the terms and conditions of this Agreement. With respect
to new IRU User Routes identified on Exhibit A, Qwest will use commercially
reasonable efforts to Deliver said User Routes within ninety (90) days following
the Effective Date.
4.2. At Delivery, all IRU(s) shall comply with the specifications set forth in
Exhibit B hereto (the "IRU Specifications and Acceptance Testing"). Qwest shall
test such IRU(s) in accordance with the procedures specified in Exhibit B to
verify that such IRU(s) are operating in accordance with the IRU Specifications
and Acceptance Testing. Qwest shall provide Customer with reasonable advance
notice of the date and time of any such IRU acceptance test (each of which shall
take place during normal business hours) such that Customer shall have the
right, but not the obligation, to have a person or persons present to observe
the tests.
4.3. In the event the results of any IRU acceptance test shows that the granted
IRU is not operating within the parameters of the applicable IRU Specifications
and Acceptance Testing, Qwest shall expeditiously take such action as shall be
commercially reasonably necessary, with respect to such portion of the IRU as
does not operate within the parameters of the applicable IRU Specifications and
Acceptance Testing, to bring the operating standards of such portion of the IRU
within such parameters. In no event shall the unavailability, incompatibility,
delay in installation, or other impairment of any of Customer's (including
Customer's suppliers (e.g., a local access telephone service provider))
interconnection facilities be used as a basis for rejecting any Capacity or IRU
provided hereunder.
4.4 If and when Qwest notifies Customer that the test results of an IRU
acceptance test are within the parameters of the IRU Specifications and
Acceptance Testing with respect to the tested IRU, Customer shall provide Qwest
with a written notice accepting the IRU. Such written notice shall specify the
Qwest "Circuit ID" number associated with the IRU granted hereunder. If Customer
fails to notify Qwest of its acceptance or rejection of the final test results
with respect to the tested IRU within ten (10) days after its receipt of notice
of such test results, Customer shall be deemed to have accepted the tested IRU.
The date of such notice of acceptance (or deemed acceptance) of the Capacity
shall be the "Acceptance Date" for such IRU.
5. TERM
5.1 The term of this Agreement (the "Term") shall begin on the Effective Date
(provided that the grant of each IRU hereunder shall not become effective until
the Acceptance Date for that particular IRU and each such IRU User Route granted
hereunder shall last for a period of no more than twenty (20) years from the
Acceptance Date of each such IRU User Route); and shall continue with respect to
each IRU purchased hereunder, unless expressly stated to the contrary herein,
until the earlier of:
(a) Twenty (20) years from the Acceptance Date of the last IRU granted
hereunder; or
5
(b) the date on which Customer notifies Qwest in writing that the last
IRU subject to this Agreement has, in Customer's determination,
reached the end of its economically useful life and that Customer
desires to not retain its Indefeasible Right of Use in such IRU.
5.2 Subject to the option rights set forth in Section 5.3 below, upon the
expiration of the Term hereof, all of Customer's rights to the use of each of
the granted IRU(s) described herein shall revert to Qwest without reimbursement
by Qwest of any fees or other payments previously made with respect thereto, and
from and after such time Customer shall have no further rights or obligations
(excepting such obligations as shall have arisen prior to the date of expiration
of the Term) with respect to the granted IRU(s).
5.3 Upon written notice from Customer to Qwest given no later than thirty (30)
calendar days prior to the expiration of the applicable IRU Term, Customer may
elect to purchase, effective as of the expiration of the applicable IRU Term, an
undivided interest in the fiber associated with the Capacity granted hereunder
for One Dollar (US $1.00) per IRU User Route (the "Purchase Option"), provided
that: (i) the undivided ownership interest to such fiber shall be granted to
Customer on an "as-is, where-is" basis, without warranty, express or implied,
and (ii) Customer shall thereafter be subject to pay a monthly recurring
operation and maintenance charge ("O&M Charge") at the then fair market value
rate as determined by Qwest upon acceptance of the Purchase Option by the
Customer. If Customer exercises the Purchase Option and thereafter fails to pay
the O&M Charge when it is due on a monthly basis, then, upon written notice by
Qwest to Customer, Qwest shall have the immediate right to cease provisioning
without liability any and all O&M Services, equipment, and any other ancillary
services applicable to the fiber, regardless of the effect such discontinuation
may have on Customer's ability to continue using the purchased fiber thereafter.
The Purchase Option shall expire, if not exercised, at the expiration of the
applicable IRU Term for each IRU User Route. The Purchase Option shall not: (1)
include any rights to or interest in any conduit, real property (other than the
fiber component Purchase Option granted hereunder), equipment, tangible or other
physical assets used by Qwest in connection with or necessary to provision the
IRU(s) granted hereunder (the "Physical Assets"); (2) be construed as
encumbering in any way the Qwest Network or Qwest's ability to modify,
reconfigure, sell, or decommission any or all of the Physical Assets; and (3)
confer any rights or benefits upon Customer as a result of any changes or
improvements in technology, including without limitation any changes in
technology which would increase the capacity of the IRU that is subject to the
Purchase Option.
5.4 Upon mutual agreement of the parties, Customer may, upon thirty (30) days
written notice provided to Qwest, sell back on a one-time basis any IRU User
Route set forth in Exhibit A in exchange for Customer's purchase, upon similar
terms and conditions as those described herein (including term) of an IRU with
greater bandwith than the IRU sold and along the same User Route. In the event
Customer wants to sell back a circuit for purposes of upgrading, the Qwest
repurchase price will be for fair market value of the IRU User Route being
purchased by Qwest as of the repurchase date. This upgrade clause shall be
available during the Term of the Agreement and the IRU fee applicable to the
upgraded circuit shall be calculated using a * per DS-0 V&H mile rate.
6
6. OPERATIONS AND MAINTENANCE OF CUSTOMER CAPACITY AND OUTAGE CREDITS
6.1 The granted IRU(s) do not provide Customer with any right to control any
network or service configuration or design, routing configuration, regrooming,
rearrangement or consolidation of channels or circuits or any similar or related
functions with regard to the Qwest Network. The granted IRU(s) are subject to
and shall be implemented in accordance with Qwest's network operations and
maintenance procedures and policies, as these may be modified from time to time
by Qwest.
6.2 Qwest will use reasonable commercial efforts to provide the maintenance
services described in this Article. All operating and maintenance charges are
set forth in Exhibit A, if not included in the applicable IRU Fee(s) set forth
in Article 3. Such maintenance, however, does not ensure that each IRU granted
hereunder will perform during the Term continuously in accordance with the IRU
Specifications and Acceptance Testing.
6.3 Customer acknowledges the possibility of an unscheduled, continuous and/or
interrupted period of time when any IRU, or a portion thereof, is "unavailable"
(as defined in the IRU Specifications and Acceptance Testing) (hereafter an
"Outage"). In the event of an Outage, Customer shall be entitled to a credit or
refund, as applicable (the "Outage Credit") against future charges with respect
to the applicable IRU determined in accordance with the following table:
Aggregate Duration of Outages
(In Minutes) Outage Credit
------------ -------------
0 - 5 Formula Below
6 - 30 *
31 - 60 *
61 - 120 *
121 - 180 *
181 - 240 *
240+ *
6.3.1 The Outage Credit shall apply only to an Outage on the Qwest Fiber
Network and excludes the Local Distribution Facilities to the Customer's
premise.
6.3.2 The aggregate total Outage Credit amount for any given month during
the Term for all affected IRU User Routes provisioned hereunder shall not exceed
* per month and for the Term the aggregate total Outage Credit amount shall not
exceed the total IRU Fee.
7
6.3.3 The length of each Outage shall be calculated in minutes, rounded up
to the nearest minute. An Outage shall be deemed to have commenced upon
verifiable notification thereof by Customer to Qwest, or, when indicated by
network control information actually known to Qwest network personnel operating
the Network at the time of the Outage, whichever is earlier. Each Outage shall
be deemed to terminate upon restoration of the affected IRU User Route, as
evidenced by appropriate network tests by Qwest and provided the IRU User Route
substantially performs in accordance with IRU Specifications and Acceptance
Testing. Qwest shall give written or electronic notice to Customer of any
scheduled or planned maintenance that will result in an Outage as early as
possible and shall use reasonable efforts to minimize any disruption to
Customer's usage of the applicable IRU User Route. Notwithstanding the
foregoing, any such scheduled or planned maintenance which results in an outage
often (10) minutes or less and for which Customer received advance written or
electronic notice shall not be deemed an Outage pursuant to Section 6.3 above.
6.3.5 No Outage Credit shall be granted if the malfunction of any
end-to-end capacity or circuit is due to an Outage or other Defect occurring in
Customer's Local Distribution Facilities.
6.3.6 Subject to the terms and conditions in this Article 6 and upon
Customer's written request, all Outage Credits shall be credited towards any
future invoice from Qwest to Customer whether or not such invoice is made
pursuant to this Agreement, or in any other agreement between Customer and
Qwest. Notwithstanding the foregoing, however, in the event the Outage Credit
balance remaining due as of the last two months of the Term applicable to each
IRU User Route purchased hereunder exceeds any amounts owing to Qwest, Customer
shall be entitled to prompt receipt of a cash refund.
6.4 The Outage Credit described in this Article 6 is the sole and
exclusive remedy of Customer in the event of any Outage; provided, however, that
an Outage, or series of related Outages, that exceeds 24 hours shall be
considered a default under this Agreement and Customer's sole and exclusive
remedy in the event of such Qwest default shall be to receive a pro-rata refund
of any unused portion of the IRU Fee applicable to the terminated IRU User
Route(s).
7. ACCESS TO QWEST POPS
7.1 Customer and its designees (such as local telecommunications providers)
shall have access to each of the Qwest POPs specified in Exhibit A, and the
right to interconnect with each granted IRU, according to the access and
interconnection standards and procedures regularly established by Qwest, as
these may be modified by it from time to time.
8. USE OF CUSTOMER CAPACITY
8.1 Customer represents and warrants that its use of each IRU granted hereunder
shall comply with all applicable laws, ordinances, rules, regulations and
restrictions.
8
8.2 Customer agrees and acknowledges that this Agreement grants no right to use
any element of the Qwest Network other than the IRU(s) granted herein. Customer
shall keep any and all of the Qwest Network, other than the IRU(s), free from
any liens, rights or claims of any third party attributable to Customer.
8.3 Customer shall be responsible for its own configuration and use of each IRU;
including the provisioning of all Local Distribution Facilities, interconnection
facilities, network equipment, testing equipment and procedures, maintenance,
and other facilities or actions necessary to utilize each IRU. Customer shall
conduct all such operations and use of the IRU(s) in manner which does not
interfere with the operations of the Qwest Network or the use thereof by any
other customer of Qwest. Customer shall comply at all times with the operating
procedures and interconnection requirements of Qwest.
8.4 Customer shall endeavor to include in each customer agreement or tariff
covering any service that utilizes any portion of the granted IRU(s) to any
third party, a provision which limits the liability of Customer thereunder for
interruptions, failures, or degradation of service to the charges received by
Customer for such service.
8.5 Customer and Qwest each agree to cooperate with and support the other in
complying with any requirements applicable to their respective rights and
obligations hereunder imposed by any governmental or regulatory agency or
authority.
9. INDEMNIFICATION
9.1 Customer hereby releases and agrees to indemnify, defend, protect and hold
harmless Qwest, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any third person or entity (including reasonable attorneys'
fees and costs) to the extent arising out of or resulting from either: (i)
the willful acts or omissions of Customer, its officers, employees,
servants, affiliates, agents, contractors, licensees, invitees or vendors;
or (ii) other acts and omissions of Customer constituting a default under
this Agreement;
(b) Any claims, liabilities or damages arising out of any violation
by Customer of any regulation, rule, statute or court order of any local,
state or federal governmental agency, court or body in connection with its
use of the granted IRU(s) hereunder;
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as a
result of Customer's use of any IRU granted hereunder not in accordance
with the provisions of this Agreement; and
(d) The use, resale, sharing or modification of the Capacity by
Customer and/or its users.
9
9.2 Qwest hereby releases and agrees to indemnify, defend, protect and hold
harmless Customer, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(e) Any injury, loss or damage to any person, tangible property or
facilities of any third person or entity (including reasonable attorneys'
fees and costs) to the extent arising out of or resulting from either: (i)
the willful acts or omissions of Qwest, its officers, employees, servants,
affiliates, agents, contractors, licensees, invitees or vendors.
(f) Any claims, liabilities or damages arising out of any violation
by Qwest of any regulation, rule, statute or court order of any local,
state or federal governmental agency, court or body in connection with its
use of the granted IRU(s) hereunder;
9.2 Nothing contained herein shall operate as a limitation on Qwest to bring an
action for damages against any third party, including indirect, special or
consequential damages, based on any acts or omissions of such third party as
such acts or omissions may affect the construction, operation or use of the
granted IRU(s) or the Qwest Network; provided however, that Customer shall
assign such rights or claims, execute such documents and do whatever else may be
reasonably necessary to enable Qwest to pursue any such action against such
third party.
10. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
10.1 Neither party shall be liable to the other party for any special,
incidental, indirect, punitive or consequential damages (whether or not such
damages were foreseeable or a party was notified of the possibility thereof)
arising out of, or in connection with such party's failure to perform its
respective obligations hereunder, including, but not limited to, damage or loss
of property or equipment, loss of profits or revenue (whether arising out of
Outages, transmission interruptions or problems, any interruption or degradation
of the functioning of the granted IRU(s) or otherwise), cost of capital, cost of
replacement services, or claims of customers, whether occasioned by any
construction, reconstruction, relocation, repair or maintenance performed by, or
failed to be performed by, the other party or any other cause whatsoever,
including, without limitation, breach of contract, breach of warranty,
negligence, or strict liability, all claims for which damages are hereby
specifically waived.
10.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, QWEST DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER CAPACITY AND THE
GRANTED IRU(s), INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11. INSURANCE
11.1 During the Term of this Agreement, Customer shall obtain and maintain, at
its expense, an appropriate corporate general liability insurance policy with
terms equal to or greater than
10
One Million U.S. Dollars (US$1,000,000) and provide Qwest with a copy of such
policy on request.
12. PAYMENT
12.1 Except as otherwise expressly provided for herein, all payments due
hereunder, if any, shall be due thirty (30) days after the date of Qwest's
invoice. If any amount due under this Agreement is not received by its
respective due date, in addition to its other available remedies, Qwest may in
its sole discretion impose a late payment charge pursuant to Section 12.2.
Notwithstanding anything in this Agreement to the contrary, no payment due
hereunder is subject to reduction, set-off or adjustment of any nature by
Customer. All disputes or requests for billing adjustments must be submitted in
writing by the due date and submitted with payment of undisputed amounts due.
Any amounts which are determined by Qwest to be in error or not in compliance
with Agreement shall be adjusted on the next month's invoice. Any disputed
amounts which are deemed by Qwest to be correct as billed and in compliance with
this Agreement, shall be due and payable by Customer, upon notification and
demand by Qwest, along with any late payment charges which Qwest may impose
pursuant to Section 12.2. Disputes shall not be cause for Customer to delay
payment of the undisputed balance to Qwest according to the terms outlined in
this Article. Invoices submitted to Customer by Qwest shall conform to Qwest's
standard billing format and content, as modified by Qwest from time to time.
12.2 In the event a party shall fail to make any payment under this Agreement
when due, such amounts shall accrue interest, from the date such payment is due
until paid, including accrued interest, at an annual rate equal to one hundred
fifty percent (150%) of the prime rate of interest published by The Wall Street
Journal or, if lower, the highest percentage allowed by law. In addition, Qwest
may offset any amounts not paid when due from any amounts that Qwest owes to
Customer under any other agreements between the parties.
13. CHARACTERIZATION OF TRANSACTION
13.1 The parties intend that each IRU granted in this Agreement does not provide
Customer with any ownership or other possessory interests in any real property,
conduit, fiber, or equipment in or on the Qwest Network or along the User Route
of the Qwest Network. Further, it is not the intention of the parties to create
a loan or other financing arrangement between the parties. However, in case the
express intent of the parties is not given legal effect and that any portion of
the transaction is deemed to constitute a loan or other financing arrangement,
or that any rights in the IRU(s) granted herein are deemed to be the property of
Customer, Customer hereby grants to Qwest, as security for the payment of all
amounts due from Customer and the performance of all other obligations of
Customer hereunder, a first-priority security interest in and continuing lien
upon all of Customer's right (including any right Customer may have to convey
title thereto), title and interest in (i) the granted IRU(s), (ii) all rights of
Customer under this Agreement, and (iii) any and all income, proceeds, products
and profits of any of the foregoing, all payment thereon, and any and all
additions thereto.
11
13.2 Simultaneously with the execution of this Agreement, and at any subsequent
time during the Term of this Agreement upon request of Qwest, Customer will
execute and deliver to Qwest such financing statements and continuation
statements as Qwest may require for purposes of perfecting and continuing the
perfection of each security interest and continuing lien.
14. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
14.1 Customer shall be independently responsible for any Impositions properly
payable with respect to the granted IRU(s). The parties agree that they will
cooperate with each other and coordinate their mutual efforts concerning audits,
or other such inquiries, filings, reports, etc., as may relate solely to the
activities or transactions arising from or under this Agreement, which may be
required or initiated from or by any duly authorized governmental tax authority.
14.2 The parties agree that the payment(s) set forth in Article 3 will be
allocated to rental periods as detailed in the Payment Allocation Schedule,
Exhibit C, attached hereto. It is understood and agreed between Qwest and
Customer that the grant of the IRU in the Qwest Capacity hereunder shall be
treated for federal, state, and local tax purposes as the lease of the Qwest
Capacity hereto pursuant to ss.467 of the Internal Revenue Code of 1986 and
according to the schedule set forth on Exhibit C. The parties further agree to
file their respective income and other tax returns and reports on such basis
and, except as otherwise required by law, not to take any positions inconsistent
therewith.
15. NOTICE
14.1 Unless otherwise provided herein, all notices and communications concerning
this Agreement shall be in writing and addressed to the other party as follows:
If to Qwest: Qwest Communications Corporation
Attention: Senior Vice President -- Wholesale Markets
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Qwest Communications Corporation
Attention: Executive Vice President & General Counsel
000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Customer: Primus Telecommunications, Inc.
Attention: COO North America
0000 Xxx Xxxxxx Xxxx, Xxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
12
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Primus Telecommunications, Inc.
Attention: General Counsel
0000 Xxx Xxxxxx Xxxx, Xxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at such other address as either party may designated from time to time in
writing to the other party.
15.2 Unless otherwise provided herein, notices shall be hand delivered, sent by
registered or certified U.S. mail, postage prepaid, or by commercial overnight
delivery service, or transmitted by facsimile, and shall be deemed served or
delivered to the addressee or its office when received at the address for notice
specified above when hand delivered, upon confirmation of sending when sent by
fax, on the day after being sent when sent by overnight delivery service, or
three (3) days after deposit in the mail when sent by U.S. mail.
16. CONFIDENTIALITY
16.1 Qwest and Customer hereby agree that if either party (the "Disclosing
Party") provides confidential or proprietary information to the other party
("Proprietary Information") to the other party (the "Recipient Party"), such
Proprietary Information shall be held in confidence, and the Recipient Party
shall afford such Proprietary Information the same care and protection as it
affords generally to its own confidential and proprietary information (which in
any case shall be not less than reasonable care) in order to avoid disclosure to
or unauthorized use by any third party. This Agreement, including its existence
and all of the terms, conditions and provisions hereof, constitutes Proprietary
Information, and all information disclosed by either party to the other in
connection with or pursuant to this Agreement shall be deemed to be Proprietary
Information, provided that written information is clearly marked in a
conspicuous place as confidential or proprietary, and verbal information is
indicated as being confidential or proprietary when given or promptly confirmed
in writing as such thereafter. All Proprietary Information, unless otherwise
specified in writing, shall remain the property of the Disclosing Party, shall
be used by the Recipient Party only for the intended purpose, and such written
Proprietary Information, including all copies thereof, shall be returned to the
Disclosing Party or destroyed after the Recipient Party's need for it has
expired or upon the request of the Disclosing Party. Proprietary Information
shall not be reproduced except to the extent necessary to accomplish the
purposes and intent of this Agreement, or as otherwise may be permitted in
writing by the Disclosing Party.
16.2 The foregoing provisions of Section 16.1 shall not apply to any Proprietary
Information which: (i) becomes publicly available other than through the
Recipient Party; (ii) is required to be disclosed by a governmental or judicial
law, order, rule or regulation; (iii) is independently developed by the
Recipient Party; (iv) becomes available to the Recipient Party without
13
restriction from a third party; or (v) becomes relevant to the settlement of any
dispute or enforcement of either party's rights under this Agreement and in
accordance with its terms and conditions. If any Proprietary Information is
required to be disclosed pursuant to the foregoing clause, the party required to
make such disclosure shall promptly inform the other party of the requirements
of such disclosure and take all reasonable protective measures to preserve the
confidentiality of such Proprietary Information as fully as possible in the
context of such permitted disclosure.
16.3 Notwithstanding Sections 16.1 and 16.2, either party may disclose
Proprietary Information to its employees, agents, and legal, financial, and
accounting advisors and providers (including its lenders and other financiers)
to the extent necessary or appropriate in connection with the negotiation and/or
performance of this Agreement or its obtaining of financing, provided that each
such party is notified of the confidential and proprietary nature of such
Proprietary Information and is subject to or agrees to be bound by similar
restrictions on its use and disclosure.
16.4 The provisions of this Article 16 shall survive for a period of two (2)
years from the date of the expiration or termination of this Agreement.
17. DEFAULT
17.1 A party shall be in default under this Agreement thirty (30) days after the
non-defaulting party shall have given written notice of such default unless the
defaulting party shall have cured such default or such default is otherwise
waived by the non-defaulting party within such thirty (30) days; provided,
however, that where any such default other than the payment of money cannot
reasonably be cured within such 30-day period, if the defaulting party shall
proceed promptly to cure the same and prosecute such cure with due diligence,
the time for curing such default shall be extended for such period of time not
to exceed ninety (90) days as may be necessary to complete such cure.
17.2 Events of default also shall include, but not be limited to, the following:
(i) failure to make any payment when due hereunder; (ii) breach of any material
provision hereof not cured within thirty (30) days following written notice by
the non-defaulting party; (iii) the making by either party of a general
assignment for the benefit of its creditors; or (iv) the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against either party which is not dismissed within ninety
(90) days thereafter, or the filing by either party of any petition or answer
seeking, consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution, or similar relief.
17.3 In addition to the specific remedies provided hereunder, upon any
non-payment or other default by Customer, Qwest may: (i) take such action as it
determines, in its sole discretion, to be necessary to correct the default;
and/or (ii) pursue any other legal remedies it may have under applicable law or
principles of equity relating to such default, provided that appropriate notice
has been given under this Section.
18. TERMINATION
14
18.1 Either party may terminate this Agreement upon the failure of the other
party to cure an event of default as required by Article 18. In the event
Customer terminates this Agreement or any User Route provided hereunder as a
result of a default by Qwest under Article 18, Customer's sole and exclusive
remedy shall be to receive a pro-rata refund of any unused portion of the IRU
Fee applicable to the terminated IRU User Route(s).
18.2 Notwithstanding the foregoing, no termination or expiration of this
Agreement shall affect the rights or obligations of any party hereto with
respect to any then existing defaults or the obligation to make any payment
hereunder for services rendered prior to the date of termination or expiration.
19. FORCE MAJEURE
19.1 Neither party shall be in default under this Agreement if and to the extent
that any delay in such party's performance of one or more of its obligations
hereunder is caused by any of the following conditions, and such party's
performance of such obligation or obligations shall be excused and extended for
and during the period of any such delay: act of God; fire; flood; fiber cut,
material shortages or unavailability or other delay in delivery not resulting
from the responsible party's failure to timely place orders therefor; lack of or
delay in transportation; government codes, ordinances, laws, rules, regulations
or restrictions (collectively, "Regulations"); war or civil disorder; failure of
a third party to grant a required right-of-way permit, easement, or other
required authorization for use of the intended right-of-way, or any other cause
beyond the commercially reasonable control of such party. The party claiming
relief under this Article shall notify the other in writing of the existence of
the event relied on and the cessation or termination of said event.
20. ARBITRATION
20.1 Any dispute or disagreement arising between Qwest and Customer in
connection with this Agreement which is not settled to the mutual satisfaction
of Qwest and Customer within thirty (30) days from the date that either party
informs the other in writing that such dispute or disagreement exists, shall be
settled by arbitration in Washington, D.C. in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect on the date
that such notice is given. If the parties are unable to agree on a single
arbitrator within fifteen (15) days from the commencement of any such
arbitration, each party shall select an arbitrator and the two (2) arbitrators
shall mutually select a third arbitrator, the three of whom shall serve as an
arbitration panel. The decision of the arbitrator(s) shall be final and binding
upon the parties and shall include written findings of law and fact, and
judgment may be obtained thereon by either party in a court of competent
jurisdiction. Each party shall bear the cost of preparing and presenting its own
case. The cost of the arbitration, including the fees and expenses of the
arbitrator(s), shall be shared equally by the parties hereto unless the award
otherwise provides.
20.2 The obligation herein to arbitrate shall not be binding upon any party with
respect to requests for preliminary injunctions, temporary restraining orders or
other similar temporary procedures in a court of competent jurisdiction to
obtain interim relief when deemed necessary
15
by such court to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute. It is not the intention of the
parties that such injunctive procedures shall be in lieu of, or cause
substantial delay to, any arbitration proceeding commenced under Section 20.1
above.
21. WAIVER
21.1 The failure of either party hereto to enforce any of the provisions of this
Agreement, or the waiver thereof in any instance, shall not be construed as a
general waiver or relinquishment on its part of any such provision, but the same
shall nevertheless be and remain in full force and effect.
22. GOVERNING LAW
22.1 This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York, without reference to its choice of law
principles.
23. RULES OF CONSTRUCTION
23.1 The captions or headings in this Agreement are strictly for convenience and
shall not be considered in interpreting this Agreement or as amplifying or
limiting any of its content. Words in this Agreement which import the singular
connotation shall be interpreted as plural, and words which import the plural
connotation shall be interpreted as singular, as the identity of the parties or
objects referred to may require.
23.2 Unless expressly defined herein, words having well known technical or trade
meanings shall be so construed. All listing 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.
23.3 Except as set forth to the contrary herein, any right or remedy of Customer
or Qwest shall be cumulative and without prejudice to any other right or remedy,
whether contained herein or not.
23.4 This Agreement has been fully negotiated between and jointly drafted by the
parties.
23.5 In the event of a conflict between the provisions of this Agreement and
those of any Exhibit, the provisions of this Agreement shall prevail and such
Exhibit shall be corrected accordingly.
23.6 All actions, activities, consents, approvals and other undertakings of the
parties in this Agreement shall be performed in a reasonable and timely manner,
it being expressly acknowledged and understood that time is of the essence in
the performance of obligations required to be performed by a date expressly
specified herein. Except as specifically set forth herein, for the purpose of
this Article the normal standards of performance within the telecommunications
industry in the relevant market shall be the measure of whether a party's
performance is reasonable and timely.
16
24. REPRESENTATIONS AND WARRANTIES
24.1 Each party represents and warrants that:
(a) It has the full right and authority to enter into, execute, deliver
and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject
to bankruptcy, insolvency, creditors' rights and general equitable
principles; and
(d) Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes or
court orders of any local, state or federal government agency, court
or body of any country or any contract or other agreement the party
is subject to.
25. PUBLICITY
25.1 No publicity regarding the existence and/or terms of this Agreement may
occur without Qwest's prior express written consent. Notwithstanding the
foregoing, however, Qwest agrees to issue a mutually acceptable joint press
release with Customer by January 14, 2000 addressing (i) the purchase of the
OC-48 Capacity hereunder; (ii) the co-location agreement hereunder; (iii) the
private peering relationship resulting therefrom; and (iv) the recognition by
Qwest of Customer as a significant worldwide provider of VOIP services. Qwest
shall allow senior management acceptable to Customer and available from Qwest to
be quoted in such press release.
26. ASSIGNMENT
26.1 This Agreement shall be binding on Customer and its respective affiliates,
successors, and assigns. Customer shall not assign, sell or transfer this
Agreement or the right to receive the granted Capacity hereunder, whether by
operation of law or otherwise, without the prior written consent of Qwest, which
consent shall not be unreasonably withheld; provided however that Customer shall
be entitled to assign the right to receive the granted Capacity hereunder to an
Affiliate so long as Customer remains ultimately responsible for all Customer
obligations hereunder. Any attempted assignment other than to an Affiliate of
Customer shall be null and void.
27. NO PERSONAL LIABILITY
27.1 Each action or claim against any party arising under or relating to this
Agreement shall be made only against such party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such party. No party shall seek to xxxxxx the
17
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer or director of
the other party. Each of such persons is an intended beneficiary of the mutual
promises set forth in this Article and shall be entitled to enforce the
obligations of this Article.
28. RELATIONSHIP OF THE PARTIES
28.1 The relationship between Customer and Qwest shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. Customer and Qwest, in performing any of their obligations hereunder,
shall be independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
29. SEVERABILITY
29.1 If any term, covenant or condition contained herein shall, to any extent,
be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
30. COUNTERPARTS
30.1 This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same instrument.
31. ENTIRE AGREEMENT; AMENDMENT
31.1 This Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all
prior agreements relating to the subject matter hereof, which are of no further
force or effect. As of the Effective Date, the Prior Agreement shall terminate
without further liability to either party, and no obligations of either party
thereunder shall continue. The terms and conditions set forth in this Agreement
shall herewith control with respect to any IRU Capacity previously provisioned
under the Prior Agreement. The Appendices and Exhibits referred to herein are
integral parts hereof and are hereby made a part of this Agreement. This
Agreement may only be modified or supplemented by an instrument in writing
executed by a duly authorized representative of each party.
In confirmation of their consent and agreement to the terms and conditions
contained in this IRU Agreement and intending to be legally bound hereby, the
parties have executed this IRU Agreement as of the date first above written.
18
QWEST COMMUNICATIONS CORPORATION
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Senior VP of Wholesale Services
PRIMUS TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: COO North America
19
EXHIBIT A:
DESCRIPTION OF CUSTOMER IRU USER ROUTES
AND LOCATION OF QWEST POPS
I. IRU User Routes Provisioned Pursuant to the Agreement:
----------------------------------------------------------------------------------------------------
IRU QWEST QWEST Capacity V&H IRU FEE COLLOCATION
POP A POP B MILES
----------------------------------------------------------------------------------------------------
3 New York Ft. OC-3 1,068 * None
Lauderdale,
FL
----------------------------------------------------------------------------------------------------
4 Los Angeles, San Xxxx, OC-12 307 * None
California California
----------------------------------------------------------------------------------------------------
5 San Xxxx, Denver, OC-12 925 * San Jose, California
California Colorado
----------------------------------------------------------------------------------------------------
6 Denver, Chicago, OC-12 917 * Denver, Colorado
Colorado Illinois
----------------------------------------------------------------------------------------------------
7 Chicago, New York, OC-12 709 * Chicago, Illinois
Illinois New York
----------------------------------------------------------------------------------------------------
8 New York, Washington, OC-12 203 * None
New York D.C.
----------------------------------------------------------------------------------------------------
9 Washington, Dallas, OC-l2 1180 * None
D.C. Texas
----------------------------------------------------------------------------------------------------
10 Dallas, Texas Los OC-12 1239 * Dallas, Texas
Angeles,
California
----------------------------------------------------------------------------------------------------
11 San Diego, Los OC-3 110 * San Diego
California Angeles, California
California
----------------------------------------------------------------------------------------------------
12 San San Xxxx, OC-3 * ??
Francisco, California
California
----------------------------------------------------------------------------------------------------
13 Boston, Mass. New York, OC-3 188 * Boston, Mass.
New York
----------------------------------------------------------------------------------------------------
14 Seattle, San Xxxx, OC-3 715 * Seattle, Washington
Washington California
----------------------------------------------------------------------------------------------------
II. IRU User Routes Previously Provisioned Under the Prior Agreement Being
Repurchased by Qwest Pursuant to the Agreement:
----------------------------------------------------------------------------------------------------
IRU QWEST QWEST POP V&H CAPACITY IRU FEE
POP A B MILES
----------------------------------------------------------------------------------------------------
1 New York, Los Angeles, 2,441 OC-3 *
New York California
----------------------------------------------------------------------------------------------------
2 New York, Washington, 203 OC-3 *
New York D.C.
----------------------------------------------------------------------------------------------------
2
EXHIBIT B: TECHNICAL SPECIFICATIONS AND ACCEPTANCE TESTS
* Confidential treatment has been requested in connection with this document.
2
* Confidential treatment has been requested in connection with this document.
3
* Confidential treatment has been requested in connection with this document.
4
EXHIBIT C: PAYMENT ALLOCATION SCHEDULE
For tax purposes only, the IRU Fee paid hereunder shall be allocated one
twentieth (1/20) per annual period beginning with the Effective Date.
EXHIBIT D: FORM OF COLLOCATION AGREEMENT
COLLOCATION LICENSE AGREEMENT
This Collocation License Agreement ("License") is made and entered into as
of this __ day of ________, 1999, between Qwest Communications Corporation, a
Delaware corporation ("Licensor") and _____________________________________ a
_________ corporation ("Licensee").
RECITALS
A. Licensor is engaged in the business of providing customers with
networking and telecommunications services through its telecommunications
facility or facilities located at the addresses set forth in Exhibit A that is
attached hereto and incorporated herein by this reference (each of which is
referred to herein as a "Facility").
B. Licensor is entitled to license the use of the Facility to other
telecommunications companies.
C. Licensee desires to enter into a license agreement with Licensor for
the use of the Facility for the purpose of installing equipment and accessing
transmission capacity and operating its network, and Licensor desires to grant
to Licensee the right to use the Facility.
NOW THEREFORE, in consideration of the following mutual exchange of
promises and covenants, the parties agree as follows;
1. GRANT OF LICENSE:
(a) Subject to the terms and conditions contained herein, Licensor hereby
grants to Licensee, as of the Commencement Date, a nonexclusive license to
install, operate, and maintain certain communications equipment of
Licensee in the Facility. In addition, Licensee shall have the exclusive
use of the equipment space described in Exhibit A (the "Equipment Space").
(b) Licensor hereby reserves all rights not specifically granted to
Licensee, including, without limitation, the right to: (1) access to and
use of the Facility for its own use and for the use of its agents and
licensees; (2) grant additional licenses to other users; and (3) exercise
or grant other rights not inconsistent with the rights granted hereunder.
(c) This License is expressly made subject and subordinate to the terms
and conditions of any underlying ground or facilities lease or other
superior right by which Licensor has acquired its interest in the
Facility. Licensee agrees to comply with any terms and conditions of such
superior right. If the consent of the holder of such superior right is
required in order for the parties to enter into this License, then this
License shall not become effective until such consent is obtained.
(d) This License does not include the provision of local access. Licensee
must enter into separate agreements for local access, and for
interconnection with any other user of a Facility. All such access and
interconnections must be made through Licensor.
5
(e) On not less than sixty (60) calendar days prior notice to Licensee,
Licensor may relocate the Facility or all or any portion of the Equipment
Space designated for Licensee's equipment. Following receipt of such
notice, Licensee shall cooperate with Licensor in relocating Licensee's
equipment, at Licensee's cost, to the new Facility or Equipment Space.
2. TERM: This License shall be effective as of the Commencement Date (as
defined below), and shall expire on the _________ anniversary of the
Commencement Date, unless terminated earlier as provided for in this
License. The foregoing notwithstanding, in no event shall the License be
construed to extend beyond the term of the underlying lease or other
superior interest in the Facility, or the termination date of the
telecommunications services agreement between Licensor and Licensee that
is applicable to Licensee's use of the Facility.
In addition, either party shall have the right to terminate this License
on not less than ninety (90) days advance notice to the other party.
If for any reason Licensor does not deliver possession of the Equipment
Space to Licensee on the Commencement Date, Licensor shall not be liable
to Licensee for any resultant loss or damage, and the Commencement Date
will be extended automatically one day for each day of delay before
delivery of possession. Licensor and Licensee will execute a certificate
of the Commencement Date promptly after delivery of possession.
3. LICENSE FEES AND OTHER CHARGES: Licensee shall pay to Licensor as a
license fee for use of the Equipment Space and the Facility a one-time
nonrecurring charge and a monthly recurring charge in the amounts set
forth in Exhibit A.
Dark Fiber IRU. The nonrecurring charge shall be payable on the date that
Licensee takes possession of the Equipment Space (the "Commencement
Date"). The monthly recurring charge shall be payable in advance on the
first day of each calendar month during the term of the License.
Capacity IRU. The nonrecurring charge shall be payable on the date that
any of the circuits that are dedicated to Licensee are turned up (the
"Commencement Date"). The monthly recurring charge shall be payable in
advance on the first day of each calendar month following the Commencement
Date.
If the term Commencement Date commences or ends on a day other than the
first day of a calendar month, then the license fee for the month in which
the term commences or ends shall be prorated (and paid at the beginning of
the month) in the proportion that the number of days this License is in
effect during such month bears to the total number of days in the month.
If the monthly license fee is not paid when due, the amount due and
payable shall bear interest at the rate of eighteen percent (18%) per
annum from the date due until paid.
In addition, Licensee shall pay to Licensor all costs incurred by Licensor
in making modifications or improvements to the Facility for Licensee, or
for fire suppression, energy sources or other utilities, and the costs of
any work or service performed for, or facilities furnished to, Licensee to
a greater extent or in a manner more favorable to Licensee than that
performed for or furnished to others within the Facility.
4. USE OF THE FACILITY: Licensee shall use the Facility solely for the
purpose of installing, maintaining and utilizing the communications
equipment and other personal property of Licensee installed in the
Facility pursuant to the terms of this License for interconnection with
the facilities of Licensor and the local exchange carriers that are
present in the Facility on the Commencement Date, and for no other
purpose. Licensee shall not use the Facility, or allow access thereto or
use thereof, except in accordance with the terms of this License. Licensee
shall not use the Facility for storage of equipment or for any
administrative function.
6
In its use of the Facility Licensee shall not interfere, or allow the
operation of its equipment to interfere, with Licensor or any other
occupant of the Facility.
Except as otherwise provided herein, Licensee's equipment shall remain the
sole property of Licensee. Licensee expressly disclaims any right, title,
or interest in or to any of Licensor's equipment or property, or in that
of any of Licensor's affiliates, customers, agents or licensees, whether
located in the Facility or the Equipment Space, or elsewhere.
5. ACCESS TO FACILITY:
(a) Shared Access. Where access to a Facility is shared with other
users, or in the case of access to a cross-connect panel, Licensee
shall be provided access to the Facility only when accompanied by a
representative of Licensor. Licensee shall pay the following hourly
charges for such access for each Qwest representative, for each hour
or any part thereof:
(1) on business days, between the hours of 8:00 a.m. and 5:00 p.m.
local time, one hundred dollars ($100);
(2) on business days, between the hours of 5:00 p.m. and 8:00 am.,
and at any time on Saturdays, two hundred and twenty-five
dollars ($225); and
(3) on Sundays and legal holidays, three hundred dollars ($300).
Licensee shall be charged for Licensor's travel time as part of the
foregoing calculations. All individuals entering a Facility at the
direction of Licensor shall at all time have appropriate identification,
and shall display it to Licensor's representative on request.
OPTIONAL:
(a) Separate Access. Where access to a Facility is not shared with other
users, Licensee shall be responsible for security within its caged
Space, and within and about its separate space.
(b) Scheduling. Licensor shall schedule all access to a Facility by
telephone through Licensee's Access Control Center.
(c) Safety Training. All employees and contractors of Licensee who will
enter upon any railroad right of way must successfully complete
railroad safety training for the applicable railroad, at Licensee's
expense.
6. TAXES: Licensee shall be liable for and shall pay all taxes levied against
the property owned by it and located on or about the Facility.
7. ACCEPTANCE OF FACILITY: The installation of equipment by Licensee shall be
conclusive evidence that Licensee accepts the Facility "as is," and that
the Facility is suitable for the use intended by Licensee and is in
satisfactory condition at the time the equipment was installed.
8. MAINTENANCE OF PREMISES: Licensee at its own cost and expense, shall
protect, maintain and keep in good order the Equipment Space and any
equipment in the Equipment Space, and shall ensure that neither Licensee
nor its agents, contractors or invitees damage any part of the Facility,
the Equipment Space or any equipment located in or about the Facility, and
shall not allow any debris or supplies to be left in or about the
Facility. Licensee shall not maintain or permit any nuisances or
violations of governmental laws, rules, regulations or ordinances with
respect to the Facility. Licensee shall ensure that neither its employees,
agents nor invitees shall permit any explosive, flammable or combustible
material or any hazardous or toxic materials, as defined under state,
federal or local laws or regulations, to be located in or about the
Facility, except in compliance with all applicable laws and regulations.
7
9. INSTALLATION AND ALTERATIONS:
(a) Licensee shall notify Licensor before commencing any installation,
interconnection, addition or alteration within or about the Facility, or
undertake any installation, upgrade or modification to Licensee's
equipment. Without the prior approval of Licensor, Licensee and shall not
(1) undertake any installation, interconnection, addition or
alteration within or about the Facility, or
(2) undertake any activity that would in any way result in an
increased cost to Licensor, or that might affect the use of
the Facility or other equipment by Licensor or any other user
of the Facility.
Whenever Licensor's approval of work is required, Licensee shall
deliver a written request to Licensor, specifying:
(1) the names and addresses of each proposed contractor and
subcontractor;
(2) a summary of the qualifications and experience of each
contractor and subcontractor;
(3) a description of the services to be performed; and
(4) the planned dates and times of such activities.
Licensor shall have the right to disapprove or require the removal
of any contractor or subcontractor selected for work in the Facility. All
such approvals shall be valid only if given by Qwest's Vice President of
Operations. If approval of any contractors or subcontractors is required
by the terms of an agreement with a lessor or other party holding a
superior interest in the Facility, Licensor shall also submit the written
request to such other party for approval, and Licensee's use of
contractors shall be subject to landlord's approval as set forth in the
underlying lease.
(b) All maintenance, installation, interconnection, addition, upgrade,
modification or other alteration within the Facility, shall comply with
all manufacturers' specifications, and shall meet all industry quality
assurance standards (e.g. NEBS, IEEE, Bellcore).
(c) Licensee shall pay or cause to be paid all costs and charges:
(1) for work done by Licensee or caused to be done by Licensee on
or about the Facility,
(2) for all materials furnished for or in connection with such
work;
(3) for alterations or additions to the Facility or equipment that
requires Licensor to incur costs; and
(4) all other costs or expenses incurred by Licensor arising out
of or related to that arise out of work done by or for the
benefit of Licensee.
(d) Licensee shall indemnify Licensor against and hold Licensor and the
Facility free and clear of and from all mechanics' liens and claims of
liens, and all other liabilities, liens, claims and demands on account of
such work done by or on behalf of Licensee. If any such lien is filed at
any time against the Facility, or any part thereof, Licensee shall cause
such lien to be discharged of record within ten (10) days after the filing
thereof, except that if Licensee desires to contest such lien, it will
furnish Licensor, within such ten-day period, security reasonably
satisfactory to Licensor of at least 150% of the amount of the claim, plus
estimated costs and interest. If a final judgment establishing the
validity or existence of a lien for any amount is entered, Licensee shall
pay and satisfy the same without delay. If Licensee fails to pay any
charge for which a mechanics' lien has been filed, and has not given
Licensor security as described above, Licensor may, at its option, pay
such charge and related costs and interest, and the amount so paid,
together with reasonable attorneys' fees incurred in connection with such
lien, will be immediately due
8
from Licensee to Licensor. Nothing contained in this License shall be
deemed to constitute a consent or agreement of Licensor to subject the
Facility to liability under any mechanics' or other lien law. If Licensee
receives notice that a lien has been or is about to be filed against the
Facility, or any action affecting title to the Facility has been commenced
on account of work done by or on behalf of, or materials furnished to or
for Licensee, it will immediately give Licensor notice of such occurrence.
At least fifteen (15) days before commencement of any work (including but
not limited to any maintenance, repairs, alterations, additions,
improvements or installations) in or to the Facility or the Equipment
Space by or for Licensee, Licensee will give Licensor notice of the
proposed work and the names and addresses of the persons supplying labor
and materials for the proposed work. Licensor shall have the right to post
notices of nonresponsibility or similar notices on the Facility in order
to protect the Facility against any such liens.
10. RULES AND REGULATIONS: Licensee shall at Licensee's own cost and expense,
comply with all federal, state, and local laws, rules, regulations,
ordinances and requirements, whether now in force or hereinafter enacted,
relating to Licensee's use of the Facility. Licensee will obtain all
required permits and licenses pertaining to the installation, operation,
maintenance and repair of its equipment in the Facility. In addition,
Licensee agrees to comply with all rules and regulations of Licensor and
the holder of any superior lease or other superior right that pertains to
use of the Facility or the Equipment Space.
11. WAIVER OF LIABILITY; INDEMNIFICATION: Licensor and Licensee hereby agree
that:
(a) Except as provided in subsection 11(b), neither party shall be liable
to the other party, and each party hereby releases and waives all claims
against the other party, for any injury or damage arising from
interruption of service or power, except to the extent caused by the gross
negligence or intentional misconduct of the other party or its employees,
agents or contractors. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO
THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE, LOSS OF
PROFITS OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING OUT
OF, OR IN CONNECTION WITH, SUCH PARTY'S FAILURE TO PERFORM ITS
OBLIGATIONS, OR A BREACH OF ITS REPRESENTATIONS HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, COST OF REPLACEMENT SERVICES
(WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY
INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), OR CLAIMS OF
CUSTOMERS. ALL CLAIMS WITH RESPECT TO WHICH SUCH SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARE HEREBY SPECIFICALLY
WAIVED.
LICENSEE EXPRESSLY ACKNOWLEDGES THAT LICENSOR INTENDS TO ALLOW OTHER
LICENSEES TO INSTALL EQUIPMENT IN THE FACILITY. LICENSEE EXPRESSLY AGREES
THAT LICENSOR SHALL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES
INCURRED BY LICENSEE CAUSED BY SUCH OTHER LICENSEES' ACTS, EQUIPMENT, OR
FAILURE TO ACT.
(b) Licensee agrees to indemnify and hold harmless and defend Licensor,
its employees, contractors, and agents from and against any and all
demands, claims, causes of action, fines, penalties, damages (including
consequential damages), losses, liabilities, judgments, and expenses
(including without limitation attorneys fees and court costs) incurred in
connection with or arising from:
(1) the use or occupancy of the Facility by Licensee or any person
claiming under Licensee;
9
(2) any activity, work, or thing done or permitted by Licensee in
or about the Facility;
(3) any acts, omissions, negligence or willful misconduct of
Licensee or any person claiming under Licensee, or the
employees, agents, contractors, invitees, licensees or
visitors of Licensee;
(4) any breach, violation, or nonperformance by Licensee or any
person claiming under Licensee or the employees, agents,
contractors, invitees, licensees or visitors of Licensee of
any term, covenant, or provision of this License, or any law,
statute, ordinance or governmental requirement of any kind; or
(5) except for loss that is proximately caused by or results
proximately from the negligence of Licensor, any injury or
damage to the person, property, or business of Licensee, its
employees, agents, contractors, invitees, licensees, visitors,
or any other person entering the Facility under the express or
implied invitation of Licensee.
If any action or proceeding is brought against Licensor, its
employees, contractors or agents by reason of any such claim,
Licensee shall, on notice from Licensor, defend the claim at
Licensee's expense with counsel reasonably satisfactory to Licensor.
The obligations of this section shall survive the expiration or
other termination of this License.
12. INSURANCE:
(a) During the term of this License, Licensee shall, at Licensee's sole
cost and expense, keep in full force and effect the following insurance:
(1) standard form property insurance insuring against the perils of
fire, vandalism, malicious mischief, extended coverage ("all-risk") and
sprinkler leakage. This insurance policy shall be on all property owned by
Licensee, or for which Licensee is legally liable, or that was installed
at Licensee's request, and which is located in the Facility, in an amount
not less than its full replacement cost. If there is a dispute about the
amount which comprises full replacement cost, the decision of Licensor
shall be conclusive.
(2) commercial general liability insurance insuring Licensee against
any liability arising out of the license, use occupancy or maintenance of
the Facility and all areas appurtenant thereto. Such insurance shall be in
the amount of $2 million ($5 million on railroad right of way) combined
single limit for injury to or death of one or more persons in an
occurrence, and for damage to tangible property (including loss of use) in
an occurrence. The policy shall insure the hazards of the Facility and
Licensee's operations thereon, independent contractors, contractual
liability (covering the indemnity of Licensee contained in this License),
and shall (a) list Licensor as an additional insured, (b) contain a cross
liability provision, and (c) contain a provision that the insurance
provided to Licensor hereunder shall be primary and noncontributing with
any other insurance available to Licensor.
(3) workers compensation as required by applicable state law, and
employer's liability insurance with minimum limits of $1,000,000 per
occurrence. If the Facility is located in a "monopolistic" state, Licensee
shall carry "stop gap" coverage with minimum limits of $1,000,000 per
occurrence.
(4) business automobile insurance in an amount not less than
$1,000,000 per occurrence covering all autos used at the Facility,
including owned, non-owned and hired autos.
10
(b) All the insurance required of Licensee under this Agreement shall: (1)
be issued as a primary policy by an insurer with an A M Best rating of VII
or better, (2) contain an endorsement requiring sixty (60) days written
notice from the insurance company to both parties before cancellation or
material reduction in the coverage, scope or amount of any policy. Each
liability insurance policy shall list Licensor, its, officers, directors
and employees as additional insureds and loss payees. Each policy, or a
certificate of the policy acceptable in form and content to Licensor,
shall be deposited with Licensor within thirty (30) days after execution
of this Agreement and on renewal of the policy not less than thirty (30)
days after expiration of the initial term of the policy.
(c) Anything in this License to the contrary notwithstanding, Licensor and
Licensee each waives all rights of recovery, claim, action or cause of
action against the other, its agents (including partners, both general and
limited), trustees, officers, directors, agents and employees, for any
loss or damage that may occur to the Facility, or any improvements
thereto, or any property of such party therein, arising from any cause
covered by any insurance carried by such party, including negligence of
the other party. Licensor and Licensee shall cause their respective
insurers to issue appropriate waiver of subrogation rights endorsements to
all insurance policies carried in connection with the Facility or the
contents.
13. ASSIGNMENT AND SUBLICENSING: Licensor may freely assign this License.
Licensee shall not sell, assign, pledge, encumber or otherwise transfer by
operation of law or otherwise all or any part of Licensee's rights or
obligations under this License, nor permit any other person to occupy or
use the Facility or any portion thereof, without first obtaining
Licensor's prior written consent, which consent may be withheld in
Licensor's sole discretion. Licensee shall notify Licensor sixty (60) days
prior to the effective date of any proposed assignment of its intention to
assign this License. Any attempted sale, assignment, encumbrance or other
transfer of all or any part of this License by Licensee shall be void and
shall constitute a breach of this License.
14. SERVICES PROVIDED BY LICENSOR: Licensor shall make available the following
services for Licensee's use of the Equipment Space:
(a) HVAC sufficient to maintain an ambient temperature of 50(degrees)F to
86(degrees)F and relative noncondensing humidity.
(b) AC power consisting of commercial, unprotected and interruptible 120
volt, 20 amp each, single phase, duplex outlets, for testing of equipment
only.
(c) Except as otherwise specified in Exhibit A, DC power consisting of
fused 30 amp A supply and fused 30 amp B supply, negative 48 volts, for
each rack.
(d) Fire suppression system, either sprinkler system or other system that
conforms with local, state, and federal laws and regulations.
(e) Battery reserve, as is available to Licensor.
(f) Grounding.
Installation of Licensee's equipment shall be performed in accordance with
Licensor's installation policies and specifications. Licensee shall
supply the fiber, cable and the equipment that will be installed on the
shelves. For cable terminations, all connectors shall be compatible with
BNC connectors. For fiber terminations, all connectors shall be standard
EC connectors. Licensor will perform the interconnection between
Licensor's and Licensee's equipment. All services shall be provided at the
Facilities and under the direction and instruction
11
of Licensee's personnel, and Licensee accepts sole responsibility for
services performed by Licensor.
LICENSOR SHALL HAVE NO DUTY TO MONITOR, MAINTAIN, OR CARE FOR THE
EQUIPMENT INSTALLED BY OR FOR LICENSEE.
15. TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION: In the event of any
damage, destruction or condemnation of the Facility that renders the
Facility unusable or inoperable, Licensor shall have the right to
terminate this License and all of its duties and obligations hereunder by
giving notice to Licensee within thirty (30) days after such damage,
destruction or condemnation.
16. SURRENDER OF THE PREMISES: Within fifteen (15) days of expiration or
earlier termination of this License, Licensee shall remove its equipment
from the Facility at Licensee's expense. Licensee shall surrender the
Equipment Space in good condition, reasonable wear and tear excepted. If
Licensee fails to remove its equipment and other personal property from
the Facility within thirty (30) days after the date of expiration or other
termination, Licensor may remove such items at Licensee's sole cost and
expense.
In addition, upon expiration or other termination of this License for any
reason, Licensee shall, at its sole cost and expense, remove all
alterations, additions and improvements made or installed by Licensee and
restore the Facility to the same or as good condition as existed as when
Licensee first installed equipment, reasonable wear and tear excepted.
17. EVENTS OF DEFAULT:
(a) The occurrence of any one or more of the following events shall
constitute a default and breach of this License by Licensee ("Events of
Default"):
(1) Licensee's failure to pay when due any recurring monthly license
fees and charges, initial installation charges, or other amounts.
(2) The installation by Licensee of any equipment in the Facility
without first obtaining Licensor's consent.
(3) Licensee's vacation or abandonment of a Facility.
(5) Interference by Licensee with Licensor or any other user of a
Facility that continues for four (4) hours following notice from Licensor.
(6) A transfer or assignment by Licensee of its interest in this
License, except as specifically permitted by the terms of this License.
(7) Licensee's failure to relocate Licensee's equipment in
accordance with section 1(e).
(8) Licensee's failure to perform or observe any other term,
covenant or condition of this License, if the failure continues for thirty
(30) days after notice has been given to Licensee.
(b) Upon the occurrence of any Event of Default, Licensor may, without
notice or demand and in addition to any other right or remedy available at
law or equity, terminate this License and remove all of Licensee's
equipment from the Facility and store the same at Licensee's expense.
Licensee hereby waives any damages occasioned by such removal. Any
equipment so removed will be returned to Licensee upon payment in full of
all storage costs, past due license fees and charges. If within thirty
(30) days following such equipment removal, Licensee has not requested the
return
12
of its equipment and paid any sums owed, then Licensor may exercise all
rights of ownership over such equipment including the right to sell same
and retain possession of any sale proceeds. Licensor's exercise of any
remedies provided for in this section shall be without prejudice to any
other remedies Licensor may have provided for herein or by law.
18. FORCE MAJEURE: Should the performance of any act required by this License,
other than the payment of money, be prevented or delayed by reason of an
act of God, strike, lockout, labor troubles, inability of Licensor to
secure materials necessary to provide the services, restrictive
governmental laws or regulations, or any other cause beyond the control of
the party required to perform the act, the time for performance will be
extended for a period equivalent to the period of delay and performance of
the act during the period of delay will be excused.
19. GOVERNING LAW: This License shall be governed by and construed in
accordance with the laws of the State of New York.
20. INTERPRETATION: Licensor and Licensee hereby expressly agree that this
License constitutes a mere license and not an interest in the Facility.
21. WAIVER: No waiver by Licensor of any default or breach of Licensee's
performance of any term, condition or covenant of this License shall be
deemed to be a waiver of any subsequent default or breach by Licensee of
the same or any other term, condition or covenant contained in this
License.
22. NOTICES: All notices required or permitted by this License shall be in
writing and delivered by hand, courier, overnight delivery service or
registered or certified mail return receipt requested. Any notice or other
communication under this License shall be deemed given when received or
refused and shall be directed to the following addresses:
(a) If to Licensor:
Qwest Communications Corporation
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Vice President, Transport Engineering
with copies to:
Qwest Communications Corporation
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Contracts Manager, Field Operations
And:
Qwest Communications Corporation
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(b) If to Licensee:
____________________________________________
____________________________________________
____________________________________________
Attention: _________________________________
13
In addition, Licensor may give Licensee notice of potential interruption
of or interference with service under section 17(a)(5) by electronic
delivery at the following internet address: xxx.xxxxxxxxx@xxxxx.xxx.
Licensor's Access Control Center: (000) 000-0000.
Licensee's Access Control Center: ________________
Either party may change its address for purposes of this section by notice
similarly given.
23. TERMS AND HEADINGS: The section titles of this License shall have no
effect upon the construction or interpretation of any part hereof.
24. SUCCESSORS: This License shall inure to the benefit of and be binding on
the parties, and their heirs, successors, assigns and legal
representatives, but nothing contained in this section shall be construed
to permit an assignment or other transfer except as specifically provided
herein.
25. SEVERABILITY: Any provision of this License which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any
other provision hereof and the remaining provisions hereof shall remain in
full force and effect to the greatest extent permitted by law.
26. RULES AND REGULATIONS: Licensee and its employees, agents and invitees
shall abide by and observe all reasonable rules and regulations as may be
promulgated by Licensor or Licensor's lessor for the maintenance and use
of the Facility. Notice of the rules and regulations will be posted or
provided to Licensee. Licensor may periodically amend or supplement the
rules and regulations at its sole discretion.
27. AMENDMENT AND MODIFICATION: This License may be amended, changed or
modified only by an instrument in writing signed by duly authorized
representatives of the parties hereto. Licensee expressly agrees to
execute any amendment to this License which may be required by a holder of
a superior interest in the Facility, which does not materially and
adversely affect Licensee's rights under this License, within fifteen (15)
days of a written request by Licensor or Licensor may terminate this
License on notice to Licensee.
28. ATTORNEYS' FEES: If either party commences an action against the other
party arising out of or concerning this License, the prevailing party in
such litigation shall be entitled to reasonable attorneys fees and costs
in addition to such other relief as may be awarded.
29. ENTIRE AGREEMENT: This License contains all of the agreements of the
parties concerning the Facility, and there are no spoken or other
agreements that modify or affect this License. This License supersedes any
and all prior agreements made or executed by or on behalf of the parties
hereto regarding the Facility.
30. CONFIDENTIALITY: The parties agree that this License is and shall be kept
confidential. Neither party shall divulge or otherwise disclose any of the
provisions of this License to any third party without the prior written
consent of the other party, except that either party may make disclosure
to those required for the implementation of this License, and to customers
and prospective customers, purchasers and prospective purchasers,
auditors, attorneys, financial advisors, lenders and prospective lenders,
investors and prospective investors, provided that in each case the
recipient agrees in writing to be bound by the confidentiality provisions
set forth in this section. In addition, either party may make disclosure
as required by a court order or as otherwise required by law or in any
legal or arbitration proceeding relating to this License. If either party
is required by law or by interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process to
disclose the provisions of this License, it will provide the other party
with prompt prior notice of such request or requirement so that such party
may seek an appropriate protective order and/or waive compliance with this
Section. The
14
party whose consent to disclose information is requested shall respond to
such request, in writing, within five (5) working days of the request by
either authorizing the disclosure or advising of its election to seek a
protective order, or if such party fails to respond within the prescribed
period the disclosure shall be deemed approved.
In addition, Licensee shall submit to Licensor all news releases,
advertising and other publicity material related to this License wherein
Licensor's name is mentioned or language is used from which a connection
to Licensor's name therein may, in Licensor's judgment, be inferred or
implied. Licensee shall neither publish nor use such material nor use
Licensor's name, without the prior written consent of Licensor.
IN WITNESS WHEREOF, the parties have executed this License the date first
above written.
Licensor: Qwest Communications
Corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
Licensee:_______________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
15
COLLOCATION AGREEMENT
EXHIBIT A
LOCATION OF THE FACILITY
REQUEST NO. RESERVATION NO.
THE EQUIPMENT SPACE
Number of bays/racks:
Dimensions of each bay/rack: 23" by 19" and seven feet tall
Space Type: Common
DC Power Requirements:
Voltage:________________________
Total amperage: A&B Feeds Required:
Number Of Breakers Needed (per feed):
20 amp: 30 amp: 40 amp:
50 amp: 60 amp: l00 amp:
Other:
Signal Interface (Choose One):
Dark Fiber: |_| Connection:
Optical: |_| Type:
Electrical: |_| Bit Rate:
Notes, Special Requirements:
LICENSE FEES AND OTHER CHARGES
A One-time Nonrecurring Charge ("NRC") of $2500.00 per rack.
A Monthly Recurring Charge ("MRC") of $1500.00 per rack (up to 30
amps of DC power per rack included in the MRC).
An additional monthly recurring charge of $10 per amp of DC power
per rack (provided in 10 amp increments) for power furnished above
30 amps per rack.
16
OPTIONAL CLAUSES:
In addition, Licensor may give Licensee notice of the availability
or interruption of the services described in section 3, or a planned
maintenance, by electronic delivery at all of the following internet
addresses:
__________________________
__________________________
__________________________
and Licensee may give Licensor notice of rejection of a rack by
electronic delivery at the following internet address:
______________(a)xxxxx.xxx
In the case of an emergency, Licensor may notify Licensee either
through the Internet addresses set forth above, or at the following
telephone numbers:
Primary Telephone Number: (000) 000-0000
Alternate Telephone Number: (000) 000-0000
EXHIBIT __
AMENDMENT TO COLLOCATION LICENSE AGREEMENT
This Amendment to the Collocation License Agreement ("Amendment") is
entered into as of the ____ day of________, 199_ or 200_, by and between Qwest
Communications Corporation ("Licensor"') and _________________ (the "Licensee").
Recitals
A. The parties entered into that certain Collocation Agreement dated
_________________ (the "Master Agreement").
B. By the terms of the Master Agreement, Licensee is entitled to
increase the number of bays dedicated for its use at certain
Facilities that are subject to the Master Agreement.
C. Licensee has elected to increase the number of bays at certain
Facilities, and Licensor and the Licensee wish to amend the Master
Agreement to include additional bays.
Additional Terms
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Licensor and Licensee agree as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings given to them in the Agreement.
2. The Bays. Exhibit A of the Master Agreement is hereby amended to
include the following additional bays:
Address of Facility Number of Bays Dedicated to Licensee's Use
17
3. Confirmation of Agreement. Licensor and Licensee confirm and ratify in
all respects the terms and conditions of the Agreement, as amended by this
Amendment.
Licensor and Licensee have executed this Amendment effective as of
the day first written above.
___________________________________ Qwest Communications Corporation
By:________________________________ By:_____________________________________
Name:______________________________ Name:___________________________________
Title:_____________________________ Title:__________________________________
Date:______________________________ Date:___________________________________
Additional Space.
Licensor may offer to license to Licensee additional Equipment Space in
Licensor's Facilities on the terms and conditions of this License. If Licensee
accepts such offer, within ten (10) days following acceptance of Licensor's
offer, the parties shall execute an amendment to Exhibit A of this License. The
amendment shall be in the form attached hereto as Exhibit __. The Term of the
license for the Equipment Space shall be as set forth in Exhibit A.
Option to Renew.
Licensor grants to Licensee the right and option to extend the Term for an
additional _____ years (the "Renewal Term"). Licensee shall notify Licensor of
its election to extend this License for the Renewal Term not later than six (6)
months before the expiration date of the then existing Term. License's failure
to exercise the option in a timely manner shall cause such option to extinguish
automatically, time being of the essence. The Renewal Term shall be upon all of
the terms, covenants, and conditions of this License.
Permitted Assignments
Notwithstanding anything contained in this License to the contrary, Licensee
may, without the prior consent of Licensor, assign this License to any company
into which Licensee may be merged or consolidated, or that acquires
substantially all of the assets of Licensee.
18
EXHIBIT D: FORM OF COLLOCATION AGREEMENT
19
