Common use of Assurance of Payment Clause in Contracts

Assurance of Payment. (a) At any time and from time to time, based on the conditions set forth in this Section 7, Verizon may request, and Broadview shall provide to Verizon, adequate assurance of payment of amounts due (or to become due) to Verizon under the Amended Agreements. (b) Verizon may request, and Broadview shall provide, assurance of payment if (i) Broadview (A) in any month (“Month X”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during that month for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment, and (B) in any other month within the same period of twelve consecutive months as Month X (“Month Y”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during Month Y for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment (such notice, the “Cure Notice,” to be provided in accordance with Section 9 below (or, in the case of an Adopting CLEC, in accordance with the notice provisions of the Interconnection Agreement, until such time as the Adopting CLEC may provide Verizon with proper notice of the Adopting CLEC’s contact information that the Adopting CLEC identifies as being for the specific purpose of the Cure Notice under Section 9(b) below)); or (ii) Broadview admits its inability to pay its debts as such debts become due, has commenced a voluntary case (or has had a case commenced against it) under the U.S. Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts or the like, has made an assignment for the benefit of creditors or is subject to a receivership or similar proceeding. For purposes of Section 7(b)(i) above, a payment shall not be deemed untimely if, at the payment Due Date: (i) Broadview has notified Verizon of a bona fide dispute regarding such amount in accordance with the requirements of Section 5(a) of this Amendment, and (ii) in cases where Verizon has previously denied such a dispute, Broadview, in a written notice provided within (ten) 10 business days after such denial, stated that it had a bona fide basis to challenge the denial and requested that the dispute be escalated to a higher level in Verizon’s claim dispute process, and the amount remains subject to a bona fide dispute. (c) Unless otherwise agreed in writing by the Parties, the assurance of payment shall consist of an unconditional, irrevocable standby letter of credit naming Verizon as the beneficiary thereof and otherwise in form and substance satisfactory to Verizon from a financial institution acceptable to Verizon in its sole discretion. The letter of credit shall be in an amount equal to two (2) months anticipated charges (including, but not limited to, both recurring and non-recurring charges), as reasonably determined by Verizon, for the Services to be provided by Verizon to Broadview in connection with the Interconnection Agreement. (d) Verizon may (but is not obligated to) draw on the letter of credit upon notice to Broadview in respect of any amounts to be paid by Broadview hereunder that are not paid on the date that payment of such amounts is required by this Amendment. (e) If Verizon draws on the letter of credit, upon notice by Verizon, Broadview shall provide a replacement or supplemental letter of credit conforming to the requirements of Section 7(c) above. (f) Notwithstanding anything else set forth in the Interconnection Agreement or this Amendment, if Verizon makes a request for assurance of payment in accordance with the terms of this Section 7, then Verizon shall have no obligation thereafter to perform under the Interconnection Agreement until such time as Broadview has provided Verizon with such assurance of payment. (g) The fact that a letter of credit is requested by Verizon hereunder shall in no way relieve Broadview from compliance with the requirements of the applicable Interconnection Agreement(s) or this Amendment (including, but not limited to, any applicable tariffs) as to advance payments and payment for Services, nor constitute a waiver or modification of the terms herein pertaining to the discontinuance of Services for nonpayment of any amounts payment of which is required by the applicable Interconnection Agreement(s) or this Amendment. (h) If either Party defaults in the payment of an amount due hereunder, except for amounts subject to a bona fide dispute pursuant to Section 5 hereof with respect to which the disputing Party has complied with the requirements of Section 5 in its entirety) or if either Party materially violates any other material provision of an Amended Agreement(s), and such material default or violation shall continue for thirty (30) calendar days after written notice in accordance with the Notice(s) provisions of the Amended Agreement(s), the other Party may terminate the Amended Agreement(s) and/or suspend the provision of any or all Services thereunder by providing written notice to the defaulting Party in accordance with the notice(s) provisions of the applicable Amended Agreement(s). If the defaulting Party cures the default or violation within the thirty (30) day period, the other Party shall not terminate the Amended Agreement(s) or suspend Service provided thereunder but shall be entitled to recover all reasonable costs, if any, incurred by it in connection with the default or violation, including, without limitation, costs incurred to prepare for the termination of the Amended Agreement(s) or the suspension of Service provided thereunder. (i) If Broadview has provided assurance of payment to Verizon pursuant to the terms of this Section 7, but at least twelve (12) months have passed since the provision of such assurance of payment without the occurrence of a non-payment triggering event (i.e., as set forth in Sections 7(b)(i)(A) or 7(b)(i)(B) above), then upon written request from Broadview, Verizon shall return to Broadview such assurance of payment.

Assurance of Payment. (a) At any time and from time to time, based on the conditions set forth in this Section 7, Verizon may request, and Broadview shall provide to Verizon, adequate assurance of payment of amounts due (or to become due) to Verizon under the Amended AgreementsAgreement. (b) Verizon may request, and Broadview shall provide, assurance of payment if (i) Broadview (A) in any month (“Month X”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during that month for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment, and (B) in any other month within the same period of twelve consecutive months as Month X (“Month Y”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during Month Y for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment (such notice, the “Cure Notice,” to be provided in accordance with Section 9 below (or, in the case of an Adopting CLEC, in accordance with the notice provisions of the Interconnection Agreement, until such time as the Adopting CLEC may provide Verizon with proper notice of the Adopting CLEC’s contact information that the Adopting CLEC identifies as being for the specific purpose of the Cure Notice under Section 9(b) below)); or (ii) Broadview admits its inability to pay its debts as such debts become due, has commenced a voluntary case (or has had a case commenced against it) under the U.S. Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts or the like, has made an assignment for the benefit of creditors or is subject to a receivership or similar proceeding. For purposes of Section 7(b)(i) above, a payment shall not be deemed untimely if, at the payment Due Date: (i) Broadview has notified Verizon of a bona fide dispute regarding such amount in accordance with the requirements of Section 5(a) of this Amendment, and (ii) in cases where Verizon has previously denied such a dispute, Broadview, in a written notice provided within (ten) 10 business days after such denial, stated that it had a bona fide basis to challenge the denial and requested that the dispute be escalated to a higher level in Verizon’s claim dispute process, and the amount remains subject to a bona fide dispute. (c) Unless otherwise agreed in writing by the Parties, the assurance of payment shall consist of an unconditional, irrevocable standby letter of credit naming Verizon as the beneficiary thereof and otherwise in form and substance satisfactory to Verizon from a financial institution acceptable to Verizon in its sole discretion. The letter of credit shall be in an amount equal to two (2) months anticipated charges (including, but not limited to, both recurring and non-recurring charges), as reasonably determined by Verizon, for the Services to be provided by Verizon to Broadview in connection with the Interconnection Agreement. (d) Verizon may (but is not obligated to) draw on the letter of credit upon notice to Broadview in respect of any amounts to be paid by Broadview hereunder that are not paid on the date that payment of such amounts is required by this Amendment. (e) If Verizon draws on the letter of credit, upon notice by Verizon, Broadview shall provide a replacement or supplemental letter of credit conforming to the requirements of Section 7(c) above. (f) Notwithstanding anything else set forth in the Interconnection Agreement or this Amendment, if Verizon makes a request for assurance of payment in accordance with the terms of this Section 7, then Verizon shall have no obligation thereafter to perform under the Interconnection Agreement until such time as Broadview has provided Verizon with such assurance of payment. (g) The fact that a letter of credit is requested by Verizon hereunder shall in no way relieve Broadview from compliance with the requirements of the applicable Interconnection Agreement(s) Agreement or this Amendment (including, but not limited to, any applicable tariffs) as to advance payments and payment for Services, nor constitute a waiver or modification of the terms herein pertaining to the discontinuance of Services for nonpayment of any amounts payment of which is required by the applicable Interconnection Agreement(s) Agreement or this Amendment. (h) If either Party defaults in the payment of an amount due hereunder, except for amounts subject to a bona fide dispute pursuant to Section 5 hereof with respect to which the disputing Party has complied with the requirements of Section 5 in its entirety) or if either Party materially violates any other material provision of an the Amended Agreement(s)Agreement, and such material default or violation shall continue for thirty (30) calendar days after written notice in accordance with the Notice(s) provisions of the Amended Agreement(s)Agreement, the other Party may terminate the Amended Agreement(s) and/or Agreement or suspend the provision of any or all Services thereunder by providing written notice to the defaulting Party in accordance with the notice(s) provisions of the applicable Amended Agreement(s)Agreement. If the defaulting Party cures the default or violation within the thirty (30) day period, the other Party shall not terminate the Amended Agreement(s) Agreement or suspend Service provided thereunder but shall be entitled to recover all reasonable costs, if any, incurred by it in connection with the default or violation, including, without limitation, costs incurred to prepare for the termination of the Amended Agreement(s) Agreement or the suspension of Service provided thereunder. (i) If Broadview has provided assurance of payment to Verizon pursuant to the terms of this Section 7, but at least twelve (12) months have passed since the provision of such assurance of payment without the occurrence of a non-payment triggering event (i.e., as set forth in Sections 7(b)(i)(A) or 7(b)(i)(B) above), then upon written request from Broadview, Verizon shall return to Broadview such assurance of payment.

Assurance of Payment. (a) At any time and from time to time9.1 Intentionally Left Blank 9.2 Upon request by SBC TEXAS, based on the conditions set forth Billed Party, when having met the requirements listed in this Section 79.2.1, Verizon may request, and Broadview shall will provide to Verizon, SBC TEXAS with adequate assurance of payment of amounts due (or to become due) in the form of a deposit to Verizon under the Amended AgreementsSBC TEXAS. 9.2.1 At the effective date of this agreement if the Billed Party has received at least two (2) delinquent notices in the prior twelve (12) months; if the Billed Party is a new entrant to the market or an affiliate to an existing ILEC or CLEC (“New Entrant”) and has not been in service long enough to have already established satisfactory credit by having made at least twelve (12) consecutive months of timely payments to SBC TEXAS for charges incurred as a CLEC or ILEC; or if there is deemed by SBC TEXAS to be an impairment of credit of the “New Entrant” at the initial establishment of credit; 9.2.2 Such impairment of credit will be determined from information available from financial sources, that the Billed Party has not maintained a BBB or better long term debt rating or an A-2 or better short term debt rating by Standard and Poor’s for the prior six months; or 9.2.3 The Billed Party (a) fails to timely pay a bill rendered to it (except such portion of a bill that is subject to a good faith, bona fide dispute and as to which the Billed Party has complied with the billing dispute requirements set forth herein), and (b) Verizon may request, and Broadview shall provide, assurance the amount of payment if (i) Broadview (A) in any month (“Month X”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed such undisputed delinquency exceeds five percent (5%) of the total aggregate amount due to Verizon during that month for Services billed by Verizon and fails SBC TEXAS to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment, and (B) in any other month within the same period of twelve consecutive months as Month X (“Month Y”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during Month Y for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment (such notice, the “Cure Notice,” to be provided in accordance with Section 9 below (or, in the case of an Adopting CLEC, in accordance with the notice provisions of the Interconnection Agreement, until such time as the Adopting CLEC may provide Verizon with proper notice of the Adopting CLEC’s contact information that the Adopting CLEC identifies as being Billed Party under this Agreement for the specific purpose of the Cure Notice under Section 9(b) below))month in question; or (ii) Broadview or 9.2.4 The Billed Party admits its inability to pay its debts as such debts become due, has commenced a voluntary case (or has had a an involuntary case commenced against it) under the U.S. Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts or the like, has made an assignment for the benefit of creditors or is subject to a receivership or similar proceeding. For purposes of Section 7(b)(i) above, a payment shall not be deemed untimely if, at the payment Due Date: (i) Broadview has notified Verizon of a bona fide dispute regarding such amount in accordance with the requirements of Section 5(a) of this Amendment, and (ii) in cases where Verizon has previously denied such a dispute, Broadview, in a written notice provided within (ten) 10 business days after such denial, stated that it had a bona fide basis to challenge the denial and requested that the dispute be escalated to a higher level in Verizon’s claim dispute process, and the amount remains subject to a bona fide dispute. (c) 9.3 Unless otherwise agreed in writing by the Parties, the Parties any assurance of payment required by the previous Section shall consist of of: 9.3.1 a cash security deposit (“Cash Deposit”) held by SBC TEXAS or; 9.3.2 an unconditional, irrevocable standby letter bank Letter of credit Credit from a U.S. financial institution acceptable to both Parties naming Verizon SBC TEXAS as the beneficiary thereof and otherwise in form and substance satisfactory to Verizon from a financial institution acceptable to Verizon in its sole discretion. both Parties (“Letter of Credit”). 9.3.3 The letter Cash Deposit or Letter of credit shall Credit must be in the greater of: 1) an amount equal to two three (23) months anticipated charges (including, but not limited to, both recurring and recurring, non-recurring and usage sensitive charges, termination charges and advance payments), as reasonably determined by VerizonSBC TEXAS, for the Services Interconnection, Resale Services, Network Elements, Collocation or any other functions, facilities, products or services to be provided furnished by Verizon to Broadview in connection with the Interconnection SBC TEXAS under this Agreement. (d) Verizon may (but is not obligated to) draw on the letter of credit upon notice to Broadview in respect of any amounts to be paid by Broadview hereunder that are not paid on the date that payment of such amounts is required by this Amendment. (e) If Verizon draws on the letter of credit, upon notice by Verizon, Broadview shall provide a replacement or supplemental letter of credit conforming to the requirements of Section 7(c) above. (f) Notwithstanding anything else set forth in the Interconnection Agreement or this Amendment, if Verizon makes a request for assurance of payment in accordance with the terms of this Section 7, then Verizon shall have no obligation thereafter to perform under the Interconnection Agreement until such time as Broadview has provided Verizon with such assurance of payment. (g) The fact that a letter of credit is requested by Verizon hereunder shall in no way relieve Broadview from compliance with the requirements of the applicable Interconnection Agreement(s) or this Amendment (including, but not limited to, any applicable tariffs) as to advance payments and payment for Services, nor constitute a waiver or modification of the terms herein pertaining to the discontinuance of Services for nonpayment of any amounts payment of which is required by the applicable Interconnection Agreement(s) or this Amendment. (h) If either Party defaults in the payment of an amount due hereunder, except for amounts subject to a bona fide dispute pursuant to Section 5 hereof with respect to which the disputing Party has complied with the requirements of Section 5 in its entirety) or if either Party materially violates any other material provision of an Amended Agreement(s), and such material default or violation shall continue for thirty (30) calendar days after written notice in accordance with the Notice(s) provisions of the Amended Agreement(s), the other Party may terminate the Amended Agreement(s) and/or suspend the provision of any or all Services thereunder by providing written notice to the defaulting Party in accordance with the notice(s) provisions of the applicable Amended Agreement(s). If the defaulting Party cures the default or violation within the thirty (30) day period, the other Party shall not terminate the Amended Agreement(s) or suspend Service provided thereunder but shall be entitled to recover all reasonable costs, if any, incurred by it in connection with the default or violation, including, without limitation, costs incurred to prepare for the termination of the Amended Agreement(s) or the suspension of Service provided thereunder. (i) If Broadview has provided assurance of payment to Verizon pursuant to the terms of this Section 7, but at least twelve (12) months have passed since the provision of such assurance of payment without the occurrence of a non-payment triggering event (i.e., as set forth in Sections 7(b)(i)(A) or 7(b)(i)(B) above), then upon written request from Broadview, Verizon shall return to Broadview such assurance of payment.; or

Assurance of Payment. (a) At any time and from time to time, based on the conditions set forth in this Section 7, Verizon may request, and Broadview ATX shall provide to Verizon, adequate assurance of payment of amounts due (or to become due) to Verizon under the Amended AgreementsAgreement. (b) Verizon may request, and Broadview ATX shall provide, assurance of payment if (i) Broadview ATX (A) in any month (“Month X”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during that month for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment, and (B) in any other month within the same period of twelve consecutive months as Month X (“Month Y”), fails to pay when due amounts (including, without limitation, past due amounts from previous billing periods) that in total equal or exceed five percent (5%) of the total amount due to Verizon during Month Y for Services billed by Verizon and fails to cure such nonpayment within five (5) business days of Verizon’s written notice of nonpayment (such notice, the “Cure Notice,” to be provided in accordance with Section 9 below (or, in the case of an Adopting CLEC, in accordance with the notice provisions of the Interconnection Agreement, until such time as the Adopting CLEC may provide Verizon with proper notice of the Adopting CLEC’s contact information that the Adopting CLEC identifies as being for the specific purpose of the Cure Notice under Section 9(b) below)); or (ii) Broadview ATX admits its inability to pay its debts as such debts become due, has commenced a voluntary case (or has had a case commenced against it) under the U.S. Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts or the like, has made an assignment for the benefit of creditors or is subject to a receivership or similar proceeding. For purposes of Section 7(b)(i) above, a payment shall not be deemed untimely if, at the payment Due Date: (i) Broadview ATX has notified Verizon of a bona fide dispute regarding such amount in accordance with the requirements of Section 5(a) of this Amendment, and (ii) in cases where Verizon has previously denied such a dispute, BroadviewATX, in a written notice provided within (ten) 10 business days after such denial, stated that it had a bona fide basis to challenge the denial and requested that the dispute be escalated to a higher level in Verizon’s claim dispute process, and the amount remains subject to a bona fide dispute. (c) Unless otherwise agreed in writing by the Parties, the assurance of payment shall consist of an unconditional, irrevocable standby letter of credit naming Verizon as the beneficiary thereof and otherwise in form and substance satisfactory to Verizon from a financial institution acceptable to Verizon in its sole discretion. The letter of credit shall be in an amount equal to two (2) months anticipated charges (including, but not limited to, both recurring and non-recurring charges), as reasonably determined by Verizon, for the Services to be provided by Verizon to Broadview ATX in connection with the Interconnection Agreement. (d) Verizon may (but is not obligated to) draw on the letter of credit upon notice to Broadview ATX in respect of any amounts to be paid by Broadview ATX hereunder that are not paid on the date that payment of such amounts is required by this Amendment. (e) If Verizon draws on the letter of credit, upon notice by Verizon, Broadview ATX shall provide a replacement or supplemental letter of credit conforming to the requirements of Section 7(c) above. (f) Notwithstanding anything else set forth in the Interconnection Agreement or this Amendment, if Verizon makes a request for assurance of payment in accordance with the terms of this Section 7, then Verizon shall have no obligation thereafter to perform under the Interconnection Agreement until such time as Broadview ATX has provided Verizon with such assurance of payment. (g) The fact that a letter of credit is requested by Verizon hereunder shall in no way relieve Broadview ATX from compliance with the requirements of the applicable Interconnection Agreement(s) Agreement or this Amendment (including, but not limited to, any applicable tariffs) as to advance payments and payment for Services, nor constitute a waiver or modification of the terms herein pertaining to the discontinuance of Services for nonpayment of any amounts payment of which is required by the applicable Interconnection Agreement(s) Agreement or this Amendment. (h) If either Party defaults in the payment of an amount due hereunder, except for amounts subject to a bona fide dispute pursuant to Section 5 hereof with respect to which the disputing Party has complied with the requirements of Section 5 in its entirety) or if either Party materially violates any other material provision of an the Amended Agreement(s)Agreement, and such material default or violation shall continue for thirty (30) calendar days after written notice in accordance with the Notice(s) provisions of the Amended Agreement(s)Agreement, the other Party may terminate the Amended Agreement(s) and/or Agreement or suspend the provision of any or all Services thereunder by providing written notice to the defaulting Party in accordance with the notice(s) provisions of the applicable Amended Agreement(s)Agreement. If the defaulting Party cures the default or violation within the thirty (30) day period, the other Party shall not terminate the Amended Agreement(s) Agreement or suspend Service provided thereunder but shall be entitled to recover all reasonable costs, if any, incurred by it in connection with the default or violation, including, without limitation, costs incurred to prepare for the termination of the Amended Agreement(s) Agreement or the suspension of Service provided thereunder. (i) If Broadview ATX has provided assurance of payment to Verizon pursuant to the terms of this Section 7, but at least twelve (12) months have passed since the provision of such assurance of payment without the occurrence of a non-payment triggering event (i.e., as set forth in Sections 7(b)(i)(A) or 7(b)(i)(B) above), then upon written request from BroadviewATX, Verizon shall return to Broadview ATX such assurance of payment.