EXHIBIT 10.50
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***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[_______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
SPRINT COMMUNICATIONS COMPANY
FACILITIES AND SERVICES
AGREEMENT
THIS AGREEMENT is made and entered into this 26th day of January,
1995, by and between Sprint Communications Company L.P., a Delaware Limited
Partnership ("Sprint") whose principal address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ and Interstate FiberNet, a Georgia General Partnership, having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer"), Sprint and
Customer being collectively referred to herein as the "Parties".
WHEREAS, Customer desires to lease space from Sprint at Sprint's point-of-
presence ("POP") for the installation of equipment; and
WHEREAS, Customer may or may not contract with a local exchange carrier or
other third-party service provider (hereinafter "Representative") to install
and/or maintain such equipment in the leased space; and,
WHEREAS, Sprint desires to lease such space to Customer in conjunction with
the Telecommunications System Agreement between the parties and in accordance
with the terms and conditions stated herein,
NOW, THEREFORE, in consideration of the mutual promises and conditions set
forth herein, the Parties agree as follows:
1. Term. The term of this Agreement ("Term") shall commence on the date above
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and shall continue for a minimum period of one (1) year thereafter to be
continuous with any Sales Agreement which may be in effect between the
Parties, unless terminated by either Party pursuant to the provisions of
Paragraph 16. The Term of this Agreement shall be automatically renewed for
successive [_______________] unless either Party provides written notice of
termination ninety (90) days prior to the end of the then current Term.
2. Equipment Rack Space. Sprint agrees to lease to customer, and customer
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agrees to lease from Sprint, during the Term, floor space and such other
space as is reasonably necessary for the installation of Customer-provided
equipment ("Equipment Rack Space") at the Sprint POP site(s) specified on
Exhibit "A" attached hereto and incorporated herein. Access to the
Equipment Rack Space shall be provided to Customer at all times upon
reasonable advance notice to Sprint, by Sprint escort only, at such rates
as are set forth in Paragraph 7. Customer accepts the Equipment Rack Space
"as is" and hereby covenants and agrees to use the Equipment Rack Space
only for the purposes set forth and in strict accordance with the terms and
conditions of any applicable Sprint leases, and further agrees to not do,
or omit to do, anything which will cause a breach of any of the terms or
conditions of the applicable Sprint leases or cause damage and/or injury to
the property and/or personnel of Sprint and/or other Sprint customers.
For lease of the Equipment Rack Space during the Term, Customer shall pay
Sprint: (i) a non-recurring site preparation charge of [_________________
__________________________] per each instance of rack and/or ancillary
services installation activity which includes up to two (2) consecutive
working days for installation supervision and escort (thereafter, the
escort rates outlined in Paragraph 7 will apply); and (ii) a monthly
recurring fee of [___________________________________] per each Equipment
Rack Space per Sprint POP site used, which shall include the cost of
electrical power furnished to Customer by Sprint. The non-recurring site
preparation charge and monthly recurring fee shall not begin until the
equipment specified in Exhibit "A" is installed. For the Sprint POP sites
located in [____________________________________________________________]
the non-recurring charge and monthly recurring fees identified above are
waived as long as the Telecommunications System Agreement between the
Parties is in effect.
3. Site Clean Up. Customer will be responsible for removal of all installation
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material and clean up of affected POP site(s) after completion of Customer
equipment installation in the Equipment Rack Space.
4. Demarcation Point. The point at which the Customer's network inter-connects
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with the Sprint network shall be the [__________________________________
___________________________________] hereinafter "Demarcation Point". The
Demarcation Point will designate the division of responsibility of
providing service and connectivity. Customer shall provide the necessary
interface cabling to the Demarcation Point. Sprint will be responsible for
the service from the Demarcation Point through the completion of the
circuit through the Sprint network The Customer will be responsible for the
service from the Demarcation Point at each Sprint POP site to the
Customer's premises.
5. Installation and Testing. Customer shall engineer, furnish, install and
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test, at its sole expense, all Customer-supplied equipment in the Equipment
Rack Space. Prior to installation, this Agreement shall be fully executed
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by both Parties, and Customer shall submit to Sprint for its approval all
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engineering plans and specifications pertaining to customer-supplied
equipment to be installed in the Equipment Rack Space. Installation and
testing by customer of equipment located in the Equipment Rack Space shall
at all times be under the direct supervision of a Sprint escort. Title to
equipment furnished by customer hereunder shall, at all times, remain in
Customer (or customer's Representative where applicable) and shall be
appropriately labelled.
6. Equipment Maintenance. During the Term, Customer shall provide maintenance
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on all Customer-supplied equipment installed in Equipment Rack Space.
All requests for escort service are to be made to the appropriate POP site
or Sprint-designated location for each Equipment Rack Floor Space location.
Contact telephone numbers for each POP site are specified or EXHIBIT "A",
and can be called 24 hours per day, 7 days a week.
7. Escort Rates. Sprint will provide escort service for customer to maintain
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its equipment, on a per call basis at the rate of [________________________
_________________]. Escort services are provided for emergency repair and
routine maintenance under guidelines as specified in Paragraph 22.
The escort rate shall apply to all Customer escort requests and are subject
to a one (1) hour minimum charge per call as well as the specifications as
noted in EXHIBIT "A".
8. Permits and Fees. Customer will be responsible for any permits and/or fees,
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as required, between the Demarcation Point at each Sprint POP site to the
customer's premises.
9. Order Administration. Customer shall place orders from time to time during
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the Term for Sprint services by submitting to Sprint such information as
Sprint shall reasonably request.
10. Power. During the Term, Sprint shall furnish to customer electrical power
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necessary to meet the reasonable requirements of Customer at the POP
site(s) specified on Exhibit "A". If the power provided by Sprint causes
interference with the proper operation of Customer's equipment, the
Customer will be responsible for providing, at Customer's sole expense, any
filtering or regulation devices within the Equipment Rack Space to correct
the interference.
11. Transfer, Sale and Assignment. Customer shall not sell, assign, transfer or
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otherwise encumber any interest it has hereunder or may have in the
Equipment Rack Space, the POP(s), POP site(s), or Sprint-supplied equipment
therein, or any portion thereof, by virtue of this Agreement, without the
prior written consent of Sprint.
12. Notices. Any notices or communications required or desired to be given in
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connection with this Agreement shall be in writing and shall be delivered
to the applicable Party by U.S. Certified Mail, return receipt requested,
addressed as follows:
Sprint: Sprint Communications Company L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Real Estate Acquisition & Administration
With a copy to: Sprint Communications Company L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Customer: Interstate FiberNet
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Any notice given under this Agreement shall be effective upon receipt of
notice by the other Party. Either Party may change the above address by
written notice to the other Party as provided above.
13. Warranties. THE PARTIES DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED,
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WITH RESPECT TO THE POP SITE(S) AS LISTED ON EXHIBIT "A", ANY EQUIPMENT
PLACED THEREIN AND OTHER SERVICES, MATERIALS AND EQUIPMENT PROVIDED
HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
14. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE
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TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS, ARISING IN ANY MANNER FROM
THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS
HEREUNDER. FURTHERMORE, IN NO EVENT WILL SPRINT BE LIABLE TO CUSTOMER OR
ITS REPRESENTATIVE FOR ANY DAMAGES, DIRECT OR INDIRECT, TO CUSTOMER-
SUPPLIED EQUIPMENT ARISING OUT OF CUSTOMER'S USE OF THE POP SITE(S) LISTED
ON EXHIBIT "A" OR THE SERVICES PROVIDED HEREUNDER, UNLESS SUCH DAMAGES ARE
THE RESULT OF SPRINT'S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. SPRINT SHALL
TAKE REASONABLE PRECAUTIONS TO PROVIDE A SECURE ENVIRONMENT FOR CUSTOMER-
SUPPLIED EQUIPMENT.
15. Indemnification
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15.1 Customer shall indemnify, defend and hold harmless Sprint, its
directors, officers, employees, trade contractors, suppliers,
successors and assigns from any loss, damage, cost of defense
(including reasonable attorneys' fees and court costs), and injuries,
including death to any person,arising out of this Agreement (including
any breach hereof by Customer) to the extent caused by the negligence
or willful misconduct of Customer, its agents or employees, or its
Representative.
15.2 Sprint shall indemnify, defend and hold harmless Customer, its
directors, officers, employees, trade contractors (including
Customer's Representative), suppliers, successors and assigns from any
loss, damage, cost of defense (including reasonable attorneys' fees
and court costs), and injuries, including death to any person, arising
out of this Agreement (including any breach hereof by Sprint) to the
extent caused by the negligence or willful misconduct of Sprint, its
agents, or employees.
16. Termination of Services/Facilities: Compliance.
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16.1 Sprint may limit the use of the Equipment Rack Space or any portion
thereof by Customer hereunder when necessary because of conditions
beyond its control as set forth in Paragraph 23. In addition, Sprint
reserves the right at all times during the Term to suspend any and all
services and/or facilities to be provided hereunder, including,
without limitation furnishing of electrical power, and remove, change
or otherwise terminate the operation of Customer-supplied equipment
installed in the Equipment Rack Space without notice, if Sprint deems,
in its sole discretion, that such action is necessary to protect the
public or Sprint personnel, agents, and Sprint facilities or services
from damages or injury of any kind. Sprint may also take such action
after notice to Customer in accordance with Paragraph 20. Where
possible, Sprint will notify Customer promptly of such action and work
in cooperation with Customer to effect such remedies so as to permit
the Customer-supplied equipment to be returned to operation in an
acceptable manner. All Customer-supplied equipment installed in the
Equipment Rack Space shall comply with all applicable laws,
regulations and standards. including, without limitation, those
standards established by Sprint, and shall be maintained by Customer
in a manner so as to ensure continued compliance therewith and so as
to avoid hazard or damage to Sprint facilities or injury to Sprint
employees, agents and suppliers or to the public. In the case where
additional protection facilities are required, the same shall be
provided by Customer, at Customer's sole expense. Sprint shall
maintain the environmental parameters of the Equipment Rack Space
within customary limits for commercial
operation so long as Customer maintains Customer-supplied equipment
installed therein in accordance with the applicable specifications.
16.2 Either Party may terminate this Agreement at any time by giving
written notice as outlined in Paragraph 12. The maximum liability to
the Customer, due to termination, will be six (6) months of rental
charges for each Equipment Rack Space as stated in Exhibit "A", from
the date of termination and any charges associated with Sprint escort
services during equipment removal.
17. Insurance.
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17.1 Customer's Insurance. Customer shall, at its own expense, procure and
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maintain throughout the Term, not less than the following insurance
from financially responsible insurers licensed to do business in the
state where any work is performed: (i) Commercial General Liability
insurance, including Contractual Liability, insuring against liability
for Personal Injury, Bodily Injury, and Property Damage in an amount
of not less than [________] Combined Single Limit with respect to any
one occurrence, (ii) Business Auto insurance insuring the ownership,
maintenance or use of owned, non-owned or hired automobiles in an
amount not less than [________] Combined Single Limit for Bodily
Injury or Property Damage for any one accident, and (iii) Workers'
Compensation insurance, including Employers' Liability with limits of
not less than [______] per accident, in compliance with any Workers'
Compensation or similar statute in the State where any work is
performed. The insurance specified in subparagraphs i and ii shall
name Sprint as Additional Insured. Customer shall deliver to Sprint,
prior to and as a condition of its use of the Equipment Rack Space, a
Certificate of Insurance evidencing all of the above insurance
requirements and shall indicate that Sprint shall be notified in
writing not less than thirty (30) days prior to any cancellation or
material change in any coverage. In no event shall the limits of said
policies be considered as limiting the liability of Customer under
this Agreement. Customer or its Representative may not enter Sprint's
POP locations if the provisions of this paragraph have not been met.
17.2 Representative's Insurance: It is the intent of the parties hereto
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that Sprint be adequately protected from liability and/or damage
occurring during the term of this Agreement. In the event Customer
uses trade-contractors and/or Representatives to perform any work in
the leased space and loss occurs as a result, Sprint will look first
to the Customer and Customer's insurers for indemnification per
subparagraphs 15.1 and 17.1 contained herein. In all such cases,
Customer shall require its trade-contractors and/or Representatives to
furnish not less than the Insurance referenced in 17.1 above, and
provide that such trade contractors and/or Representatives furnish
Sprint and Customer with Certificates of Insurance, naming Sprint and
Customer as Additional Insureds.
18. Governing Law. This Agreement shall be construed under and enforced in
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accordance with the laws of the State of Kansas.
19. Entire Agreement. This Agreement supersedes and replaces any prior
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agreements, understanding or arrangements, whether oral or written,
heretofore made between the Parties and relating to the subject matter
hereof. This Agreement shall not be modified, changed, altered or amended
except by an express written agreement signed by duly authorized
representatives of both of the Parties.
20. Default. In addition to any right of termination provided for elsewhere
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herein, the non-defaulting Party hereto may terminate this Agreement upon
the occurrence of any of the following events which shall constitute a
default:
(a) Material breach of this Agreement after notice of such breach and
failure of the breaching Party to cure within thirty (30) days of
receipt of notice;
(b) A final determination by any governmental entity having jurisdiction
over the facilities and/or services provided under this Agreement
that the relationship of Sprint and Customer and/or the facilities
and/or services provided hereunder are contrary to then existing
laws; or
(c) The filing of bankruptcy by either Party under any federal, state or
municipal bankruptcy or insolvency act, or the appointment of a
receiver or any act or action constituting a general assignment by
either Party of its properties and interest for the benefit of its
creditors.
Upon the occurrence of a default by either Party, the other Party may
exercise one or more of the following remedies: (i) terminate this
Agreement pursuant to (a) above, and/or (ii) exercise any other rights or
remedies which may be available at law or in equity. Upon the occurrence of
a default, the prevailing Party shall have all reasonable expenses
(including court costs and reasonable attorneys' fees) paid by the other
Party.
21. Payments. All charges incurred by Customer hereunder will be invoiced
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monthly by Sprint. Total Customer recurring and non-recurring Equipment
Rack Space lease charges for the Term of this Agreement are shown on
EXHIBIT "A". Escort charges will be charged and invoiced monthly in
accordance with the terms set forth in Paragraph 7. All amounts stated on
each invoice shall be due and payable within thirty (30) days of receipt.
The charges for service provided hereunder are exclusive of any applicable
sales, use, excise and like taxes which will be separately stated and
included on each applicable invoice. All charges for services that remain
unpaid for a period of 10 days or more after written notice, shall be
subject to interest thereon at a rate of the lesser of 18% per annum or the
maximum rate allowable by applicable law.
22. Response Time. In the performance of its obligations hereunder, Sprint
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shall endeavor to respond to a Customer request for escort service
hereunder within (i) one (1) hour when notified by Customer from 8:00 a.m.
-5:00 p.m. on business days and when such request pertains to a manned POP
site, (ii) within three (3) hours when notified by Customer at any other
time for a manned POP site, and (iii) [____________________________________
__________________________________________________________________________
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_____________________________________________________________________
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__________________________________________________________] Emergency
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repairs on the Sprint network will take precedence over escort services
which may cause lengthening of the response times. For routine maintenance,
72 hours notice is required. Routine maintenance will only be allowed
between the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday, with
holidays excluded. Service affecting routine maintenance may be
accomplished outside of the normal routine maintenance window, but requires
120 hour advance notification. When escort service is provided by Sprint,
both the Sprint representative and Customer representative will sign a CPE
Repair/Vendor Escort Record form confirming the location, time, and date of
the escort service.
23. Inability to Perform. Neither Party shall be responsible for delays in the
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performance of its obligations hereunder (except payments due) caused by
events beyond its reasonable control.
24. Customer's Representative. Customer agrees that it shall be responsible for
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the activities and operations of its Representative (where applicable) as
relates to the installation, and maintenance, of Customer-supplied
equipment and insurance requirements set forth in Paragraph 17. Customer
shall further bind Representative to comply with all Sprint requirements
and terms as stated herein, having to do with the Customer's presence in
Sprint's POP sites.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first above written.
INTERSTATE FIBERNET, SPRINT COMMUNICATIONS COMPANY
A GEORGIA GENERAL PARTNERSHIP L.P., A DELAWARE LIMITED PARTNERSHIP
----------------------------- ------------------------------------
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ---------------------------------
Name ▇▇▇▇▇ ▇▇▇▇▇ Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title General Manager Title Director, Real Estate
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Acquisition & Administration
Date 1/30/95 Date 1/26/95
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EXHIBIT A
Customer Name & Address Representative Name & Address (where Co-location [_]
Interstate FiberNet applicable) Direct Connection [_]
----------------------- ___________________________
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ Maintenance by Sprint [_]
----------------------- ___________________________
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Escort Required [_]
----------------------- ___________________________
Trouble Shooting [_]
Response Time std. hrs
CHARGE PER MONTHLY NON-RECURRING POP PHONE
POP SITE LOCATION EQUIPMENT RACK SPACE QUANTITY CHARGE CHARGE NUMBER
----------------- -------------------- -------- ------ ------ ------
1) [__________] [_] [_] [_] [_] [____________]
2) [_____________] [_] [_] [_] [_] [____________]
3)
4)
5)
West Region Control Center: 800/827-9722
East Region Control Center: 800/669-1245
CUSTOMER EQUIPMENT: [__________________________________________________]
Customer Power Requirements: [____________________________________________]
Purpose: [________________________________________________]
Comments: This installation per Sprint/ Interstate FiberNet contract:
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COPY TO: Ed Law, Senior Network Technical Engineer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Network Engineer
Network Services - Operations
Site Supervisor
ENGINEERING DATA FORM
1. SITE: [________________]
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2. COMPANY: Interstate FiberNet
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3. CONTACT: ▇▇▇▇▇▇ ▇▇▇▇▇ PHONE: _______________________
---------------------------------
4. SWITCH SUPERVISOR: ▇▇▇▇ ▇▇▇▇▇▇ PHONE: ▇▇▇-▇▇▇-▇▇▇▇
----------------------- -----------------------
5. INTERFACE: DS1:_____________ DS3: X
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6. EQUIPMENT:
A. ELECTRONICS: SPRINT OWNED YES: [____] NO: [____]
Al. VENDOR/MANUFACTURE: [_____]
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A2. MODEL/DESCRIPTION: [_____]
----------------------------------------
A3. CAPACITY WIRE: [__] EQUIPPED: [__]
---- ----
B. DSX:
B1. TYPE: [_________] [_________]
B2. SPRINT OWNED YES: [____] NO: [____]
C. OTHER:
Cl. VENDOR/MANUFACTURE: _____________________
C2. MODEL/DESCRIPTION: ______________________
C3. CAPACITY: WIRED: ____________ EQUIPPED: _____________
7. EQUIPMENT RACK/BAY REQUIREMENTS:
A. QUANTITY:[__]
----
1ST RACK 2ND RACK 3RD RACK 4TH RACK
B. WIDTH [__] [__]
________ ________ ________ ________
C. DEPTH: [__] [__]
________ ________ ________ ________
D. HEIGHT: [__] [__]
________ ________ ________ ________
8. POWER REQUIREMENTS.
1ST TRACK 2ND RACK 3RD RACK 4TH RACK
A. INITIAL: [__] [_]
_______ _______ _______ _______
B. ULTIMATE: [___]
_______ _______ _______ _______
9. DATES:
A. DRAWINGS REQUIRED: April 1, 1995
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B. INSTALLATION START: April 15, 1995
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C. INSTALLATION COMPLETE: May 1, 1995
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10. ADDITIONAL INFORMATION:
Please mail drawings and Information for installation detail to
Interstate FiberNet
Network Engineering, Attn: ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. PREPARED BY: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. : Network Engineering
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PHONE: ▇▇▇-▇▇▇-▇▇▇▇ DATE: 12-5-94
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PREPARED BY:_________________
PHONE:___________ DATE:__________
________________________________________________________________________________
Reserved for Sprint
CONFIGURATION CONTROL
ENGINEER:_______________________________
DATE RECEIVED: ____________ PROJECT NO:________________
DATE DRAWINGS RELEASED:________________________