Exhibit 10.35.3
COLLOCATION AGREEMENT
By and Between
BellSouth Telecommunications, Inc.
and
DeltaCom, Inc.
BellSouth Telecommunications, Inc. & DeltaCom, Inc.
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Amendment to
The Interconnection Agreement
BETWEEN DELTACOM, INC.
and BellSouth Telecommunications, Inc.
Dated March 12, 1997
Pursuant to this Agreement (the "Amendment") DeltaCom, Inc. ("Interconnector")
and BellSouth Telecommunications, Inc., ("BellSouth") hereinafter referred to
collectively as the "Parties" hereby agree to amend that certain Interconnection
Agreement between the Parties dated March 12, 1997 ("Interconnection
Agreement").
I. SCOPE OF AMENDMENT
A. BellSouth hereby grants to Interconnector a right to occupy that
certain enclosed area designated by BellSouth within a BellSouth Central Office,
of a size and dimension which is specified by Interconnector and agreed to by
BellSouth (hereinafter "Collocation Space"). BellSouth will design and
construct at Interconnector's agreed upon expense, a wall or other delineation
to establish a clear division between the Collocation Space and other areas of
the Central Office dedicated to BellSouth's use.
B. Interconnector shall use the Collocation Space for the purposes of
providing services to Interconnector's customers, installing, maintaining and
operating Interconnector's equipment (to include testing and monitoring
equipment) which is used to interconnect with telecommunications services and
facilities provided by BellSouth. Pursuant to Article III, following,
Interconnector may place Interconnector-owned fiber entrance facilities to the
Collocation Space, in which case the arrangement is designated "Expanded
Interconnection." Placement of equipment in the Collocation Space without the
use of Interconnector-owned entrance facilities is designated "Service
Interconnection." In addition to, and not in lieu of, interconnection to
BellSouth services and facilities, Interconnector may connect to other
interconnectors within the designated Central Office. The Collocation Space may
be used for no other purposes except as specifically described herein or
authorized in writing by BellSouth.
C. Interconnector may not provide or make available space within the
Collocation Space to any third party. Notwithstanding the foregoing, any wholly
owned affiliate of Interconnector (i.e., Interconnector's Parent, subsidiary or
any entity under common ownership and control with Interconnector) who elects to
be made a party to this Amendment may collocate within any Central Office in a
separate Collocation Space pursuant to this Amendment by completing the
Application/Inquiry process provided for in this Amendment. Any violation of
this provision shall be deemed a material breach of this Amendment.
D. Interconnector agrees to pay the rates and charges identified at
Exhibit A attached hereto.
E. A Collocation Space will be provided to Interconnector at each Central
Office identified at Exhibit B attached hereto, which Exhibit shall be updated
from time to time as additional Central Offices are made subject to the terms of
this Amendment.
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II. TERM OF AMENDMENT
A. Term. The term of this Amendment shall be for an initial period of two
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(2) years, beginning on the Interconnection Agreement date stated above and
ending two (2) years later on the month and day corresponding to such date. The
Parties agree that any renegotiation of this Amendment upon expiration of the
term shall be pursuant to 47 U.S.C. (S)252. Until the revised agreement becomes
effective, the Parties shall continue to abide by the rates, terms and
conditions of this Amendment.
B. Upon expiration of the initial term, those service arrangements made
available under this Amendment and existing at the time of termination shall
continue without interruption under one of the following as agreed to by the
Parties: (a) a new agreement executed by the Parties, (b) standard
Interconnection terms and conditions approved and made generally effective by
the appropriate regulatory agency in each of BellSouth's nine State regions, (c)
Tariff terms and conditions generally available to interconnecting companies, or
(d) if none of the above is available, under the terms of this Amendment on a
month-to-month basis until an arbitration proceeding has been concluded by the
Parties.
C. Commencement Date. The "Commencement Date" shall be the first day
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after Interconnector's equipment becomes operational as described in Article
II.D, following.
D. Occupancy. BellSouth will notify Interconnector when the Collocation
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Space is ready for occupancy. Interconnector must place operational
telecommunications equipment in the Collocation Space and connect with
BellSouth's network within one hundred eighty (180) days after receipt of such
notice. BellSouth may consent to an extension beyond 180 days upon a
demonstration by Interconnector that circumstances beyond its reasonable control
prevented Interconnector from completing installation by the prescribed date.
If Interconnector fails to place operational telecommunications equipment in the
Collocation Space within 180 days and such failure continues for a period of
thirty (30) days after receipt of written notice from BellSouth, then and in
that event Interconnector's right to occupy the Collocation Space terminates and
BellSouth shall have no further obligations to Interconnector with respect to
said Collocation Space. Termination of Interconnector's rights to the
Collocation Space pursuant to this paragraph shall not operate to release
Interconnector from its obligation to reimburse BellSouth for all costs
reasonably incurred by BellSouth in preparing the Collocation Space, but rather
such obligation shall survive this Amendment. For purposes of this paragraph,
Interconnector's telecommunications equipment will be deemed operational when
cross-connected to BellSouth's network for the purpose of service provision.
E. Termination. Interconnector may terminate occupancy in a particular
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Collocation Space upon thirty (30) days prior written notice to BellSouth. Upon
termination of such occupancy, Interconnector at its expense shall remove its
equipment and other property from the Collocation Space. Interconnector shall
have thirty (30) days from the termination date to complete such removal;
provided, however, that Interconnector shall continue payment of monthly fees to
BellSouth until such date as Interconnector has fully vacated the Collocation
Space. Should Interconnector fail to vacate the Collocation Space within thirty
(30) days from the termination date, BellSouth shall have the right to remove
the equipment and other property of Interconnector at Interconnector's expense
and with no liability for damage or injury to Interconnector's property unless
caused by the negligence or intentional misconduct of BellSouth.
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III. USE OF COLLOCATION SPACE
A. Nature of Use. BellSouth shall permit Interconnector to place,
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maintain and operate in the Collocation Space any equipment that Interconnector
is authorized, as described herein, by BellSouth and by Federal or State
regulators to place, maintain and operate in collocation space and that is used
by Interconnector to provide services which Interconnector has the legal
authority to provide. The equipment must at a minimum comply with the BellCore
Network Equipment Building System (NEBS) General Equipment Requirements (TR-NWT-
000063) and National Electric Code standards. Interconnector may elect to
enclose the Collocation Space. Interconnector shall not use the Collocation
Space for marketing purposes. Interconnector shall place no signs or marking of
any kind (except for a plaque or other identification affixed to
Interconnector's equipment and reasonably necessary to identify Interconnector's
equipment, and which shall include a list of emergency contacts with telephone
numbers), in the area surrounding the Collocation Space or on the grounds of the
Central Office housing the Collocation Space.
B. Entrance Facilities. Interconnector may elect to place
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Interconnector-owned entrance facilities into the Collocation Space. BellSouth
will designate the point of interconnection in proximity to the central office
building housing the Collocation Space, such as an entrance manhole or a cable
vault. Interconnector will provide and place cable at the point of
interconnection of sufficient length to be pulled through conduit and into the
splice location. No splicing will be permitted in the entrance manhole.
Interconnector will provide a sufficient length of fire retardant riser cable,
to which the entrance cable will be spliced, which will extend from the splice
location to the Interconnector's equipment in the Collocation Space.
Interconnector must contact BellSouth for instructions prior to placing the
entrance facility cable in the manhole. Interconnector is responsible for
maintenance of the entrance facilities. Dual entrance will be permitted where
capacity exists. The interconnection point for entrance facilities extending
from a rooftop antenna will be designated by BellSouth on the
Application/Inquiry response.
C. Demarcation Point. A point-of-termination bay(s) will designate the
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point(s) of interconnection between Interconnector's equipment and/or network
and BellSouth's network. Each party will be responsible for maintenance and
operation of all equipment/facilities on its side of the demarcation point.
Interconnector may, at its option, provide its own point-of-termination bay(s)
in accordance with BellSouth's guidelines and specifications, which BellSouth
will provide upon request.
D. Interconnector's Equipment and Facilities. Interconnector is solely
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responsible for the design, engineering, testing, performance, monitoring,
maintenance, and repair of the equipment and facilities used by Interconnector
in the Collocation Space. Without limitation of the foregoing provisions,
Interconnector will be responsible for servicing, supplying, repairing,
installing and maintaining the following on its side of the demarcation point:
(l) cable(s); (2) equipment; (3) point-of-termination cross-connects; (4) point
of termination maintenance, including replacement fuses and circuit breaker
restoration, if not performed by BellSouth; and (5) connection cable(s) and
associated equipment which may be required within the Collocation Space to the
points of interconnection.
E. Easement Space. From time to time BellSouth may require access to the
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Collocation Space. BellSouth retains the right to access such space for the
purpose of making equipment and building modifications (e.g., running, altering
or removing racking, ducts, electrical wiring, HVAC, and cables). BellSouth
will give reasonable notice to Interconnector when access to the Collocation
Space is required. Interconnector may elect to be present whenever BellSouth
performs work in the Collocation Space. The Parties agree that Interconnector
will not bear any of the expense associated with this work.
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F. Access and Administration. Interconnector shall have access to the
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Collocation Space twenty-four (24) hours a day, seven (7) days a week. A
security escort will be required at Central Offices where separate, secured
ingress and egress are not available and access would require Interconnector to
traverse restricted areas. All employees, agents and contractors of
Interconnector having access to the Collocation Space shall comply with
BellSouth's policies and practices pertaining to fire, safety and security, and
each such employee, agent or contractor shall display an identification badge
issued by Interconnector or certified vendor which contains a current photo, the
individual's name and company name/logo. Interconnector agrees to comply with
all laws, ordinances and regulations affecting the use of the Collocation Space.
Upon expiration of this Amendment, Interconnector shall surrender the
Collocation Space to BellSouth in the same condition as when first occupied by
the Interconnector except for ordinary wear and tear.
G. Interference or Impairment. Notwithstanding any other provisions of
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this Amendment, equipment and facilities placed in the Collocation Space shall
not interfere with or impair service provided by BellSouth or by any other
interconnector located in the Central Office; shall not endanger or damage the
facilities of BellSouth or of any other interconnector, the Collocation Space,
or the Central Office; shall not compromise the privacy of any communications
carried in, from, or through the Central Office; and shall not create an
unreasonable risk of injury or death to any individual or to the public. If
BellSouth reasonably determines that any equipment or facilities of
Interconnector violate the provisions of this paragraph, BellSouth shall give
written notice to Interconnector, which notice shall direct Interconnector to
cure the violation within twenty-four (24) hours or, at a minimum, to commence
curative measures within 24 hours and to exercise reasonable diligence to
complete such measures as soon as possible thereafter. If Interconnector fails
to take curative action within 24 hours or if the violation is of a character
which poses an immediate and substantial threat of damage to property, injury or
death to any person, or interference/impairment of the services provided by
BellSouth, then and only in that event BellSouth may take such action as it
deems appropriate to correct the violation, including without limitation the
interruption of electrical power to Interconnector's equipment. BellSouth will
endeavor, but is not required, to provide notice to Interconnector prior to
taking such action and shall have no liability to Interconnector for any damages
arising from such action, except to the extent that such action by BellSouth
constitutes gross negligence or willful misconduct.
H. Personalty and its Removal. Subject to requirements of this Amendment,
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Interconnector may place or install in or on the Collocation Space such
facilities and equipment as it deems desirable for the conduct of business.
Personal property, facilities and equipment placed by Interconnector in the
Collocation Space shall not become a part of the Collocation Space, even if
nailed, screwed or otherwise fastened to the Collocation Space, but shall retain
their status as personalty and may be removed by Interconnector at any time. Any
damage caused to the Collocation Space by Interconnector's employees, agents or
representatives during the removal of such property shall be promptly repaired
by Interconnector at its expense.
I. Alterations. In no case shall Interconnector or any person acting on
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behalf of Interconnector make any rearrangement, modification, improvement,
addition, repair, or other alteration to the Collocation Space or the BellSouth
Central Office without the written consent of BellSouth, which consent shall not
be unreasonably withheld. The cost of any such specialized alterations shall be
paid by Interconnector.
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IV. ORDERING AND PREPARE OF COLLOCATION SPACE
A. Application for Space. Interconnector shall submit to BellSouth a
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complete and accurate Application and Inquiry document, together with payment of
the Application Fee as stated in Exhibit A. The Application shall contain a
detailed description and schematic drawing of the equipment to be placed in
Interconnector's Collocation Space(s) and an estimate of the amount of square
footage required. BellSouth will respond to Interconnector's Application in
writing following the completion of review, planning and design activities.
Such response will include estimates on space availability, space preparation
costs and space availability dates.
X. Xxxx Fide Firm Order. Interconnector shall indicate its intent to
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proceed with equipment installation in a BellSouth Central Office by submitting
a Bona Fide Firm Order to BellSouth. A Bona Fide Firm Order requires
Interconnector to complete the Application/Inquiry process described in Article
IV.A preceding, submit an updated Application document based on the outcome of
the Application/Inquiry process, and pay all applicable fees referenced in
Article V, following. The Bona Fide Firm Order must be received by BellSouth no
later than thirty (30) days after BellSouth's response to Interconnector's
Application/Inquiry. Space preparation for the Collocation Space will not begin
until BellSouth receives the Bona Fide Firm Order and all applicable fees.
C. Use of Certified Vendor. Interconnector shall select an equipment
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installation vendor which has been approved as a BellSouth Certified Vendor to
perform all engineering and installation work required in the Collocation Space.
BellSouth shall provide Interconnector a list of Certified Vendors upon request.
The Certified Vendor shall be responsible for installing Interconnector's
equipment and components, extending power cabling to the BellSouth power
distribution frame, performing operational tests after installation is complete,
and notifying BellSouth's equipment engineers and Interconnector upon successful
completion of installation. The Certified Vendor shall xxxx Interconnector
directly for all work performed for Interconnector pursuant to this Amendment
and BellSouth shall have no liability for nor responsibility to pay such charges
imposed by the Certified Vendor.
D. Alarm and Monitoring. BellSouth shall place environmental alarms in
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the Central Office for the protection of BellSouth equipment and facilities.
Interconnector shall be responsible for placement, monitoring and removal of
environmental and equipment alarms used to service the Collocation Space, if
such equipment is desired by Interconnector for the protection of its own
equipment and facilities. Upon request, BellSouth will provide Interconnector
with applicable tariffed service(s) to facilitate remote monitoring of
collocated equipment by Interconnector.
E. Basic Telephone Service. Upon request of Interconnector, BellSouth
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will provide basic telephone service to the Collocation Space under the rates,
terms and conditions of the then current tariff offering for the service
requested.
F. Space Preparation. BellSouth shall pro rate the costs of any
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renovation or upgrade to Central Office space or support mechanisms which is
required to accommodate physical collocation. Interconnector's pro rated share
will be calculated by multiplying such cost by a percentage equal to the amount
of square footage occupied by Interconnector divided by the total Central Office
square footage receiving renovation or upgrade. For this section, support
mechanisms provided by BellSouth may include, but not be limited to
heating/ventilation/air conditioning (HVAC) equipment, HVAC duct work, cable
support structure, fire wall(s), mechanical upgrade, asbestos abatement, ground
plane addition, or separate ingress/egress construction. Such renovation or
upgrade will be evaluated and the charges assessed on a
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per Central Office basis. BellSouth will make best efforts to provide for
occupancy of the Collocation Space on the negotiated date and will advise
Interconnector of delays. Interconnector agrees BellSouth shall not be liable to
Interconnector for delays in providing possession of the Collocation Space.
G. Space Enclosure. Upon request of Interconnector, BellSouth shall
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construct an equipment arrangement enclosure of a size and dimension jointly
agreed upon by the Parties. Interconnector may request enclosed floor space in
increments of one hundred (100) square feet, with a minimum of one hundred (100)
square feet. Interconnector may, at its option, arrange with a BellSouth
certified contractor to construct the space enclosure in accordance with
BellSouth's guidelines and specifications. Such contractor shall directly xxxx
Interconnector for activities associated with the space enclosure construction.
H. Cancellation. If Interconnector cancels its order for the Collocation
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Space(s), Interconnector will reimburse BellSouth for any expenses incurred up
to the date that written notice of the cancellation is received. In no event
will the level of reimbursement under this paragraph exceed the maximum amount
Interconnector would have otherwise paid for work undertaken by BellSouth if no
cancellation of the order had occurred.
V. RATES AND CHARGES
Interconnector shall pay for Collocation Space(s) according to the rates
contained in Exhibit A attached hereto and pursuant to the following:
A. Non-recurring Fees. In addition to the Application Fee referenced in
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Article IV preceding, Interconnector shall remit payment of a Cable Installation
Fee, Space Construction Fee, as applicable, and one-half (1/2) of the estimated
Space Preparation Fee coincident with submission of a Bona Fide Firm Order. The
outstanding balance of the actual Space Preparation Fee shall be due thirty (30)
days following Interconnector's receipt of a xxxx or invoice from BellSouth.
BellSouth shall provide documentation to establish the actual Space Preparation
Fee. Cable Installation Fee(s) are assessed per entrance fiber placed. No
Cable Installation Fee is required for Service Interconnection. The Space
Preparation Fee will be pro rated as prescribed in Article IV.F preceding. The
Space Enclosure Construction Fee will be assessed for the materials and
installation cost of the equipment enclosure. BellSouth's engineering and other
labor time associated with establishing the Physical Collocation Arrangement
will be assessed as Additional Engineering charges, under provisions in
BellSouth's F.C.C. Number I Tariff, Sections 13.1 and 13.2. An estimate of the
Additional Engineering charges will be provided by BellSouth to Interconnector
in the Application Response.
B. Floor Space. The floor space charge includes charges for lighting,
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heat, air conditioning, ventilation and other allocated expenses associated with
maintenance of the Central Office but does not include amperage necessary to
power Interconnector's equipment. When the Collocation Space is enclosed by
walls or other divider, Interconnector shall pay floor space charges based upon
the number of square feet so enclosed. When the Collocation Space is not
enclosed, Interconnector shall pay floor space charges based upon the number of
square feet contained in a shadow print of Interconnector's equipment racks and
POT bay, plus a factor of 2.50 multiplied by the shadow print, which represents
Interconnector's share of wiring and provisioning aisle space for provisioning
and maintenance activities. Floor space charges are due beginning with the date
on which BellSouth releases the Collocation Space for occupancy or on the date
Interconnector first occupies the Collocation Space, whichever is sooner.
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C. Power. Charges for -48V DC power will be assessed per ampere per month
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based upon the certified vendor engineered and installed power feed fused ampere
capacity. Rates include redundant feeder fuse positions (A&B) and cable rack to
Interconnector's equipment or space enclosure. Fuses and power feed cables
(A&B) must be engineered (sized), furnished and installed by Interconnector's
certified vendor. The Interconnector's certified vendor must also provide a
copy of the engineering power specification prior to the Commencement Date. In
the event BellSouth shall be required to construct additional DC power plant or
upgrade the existing DC power plant in a central office as a result of
Interconnector's request to collocate in that central office ("Power Plant
Construction"), Interconnector shall pay all costs associated with the Power
Plant Construction. The determination of whether Power Plant Construction is
necessary shall be within BellSouth's sole, but reasonable, discretion.
BellSouth will notify Interconnector of the need for the Power Plant
Construction and will estimate the costs associated with the Power Plant
Construction if BellSouth were to perform the Power Plant Construction.
Interconnector shall pay BellSouth one-half of the estimated Power Plant
Construction costs prior to commencement of the work. Interconnector shall pay
BellSouth the balance due (actual cost less one-half of the estimated cost)
within thirty (30) days of completion of the Power Plant Construction.
Interconnector has the option to perform the Power Plant Construction itself;
provided, however, that such work shall be performed by a BellSouth certified
contractor and such contractor shall comply with BellSouth's guidelines and
specifications. Where the Power Plant Construction results in construction of a
new power plant room, upon termination of this Amendment, Interconnector shall
have the right to remove its equipment from the power plant room, but shall
otherwise leave the room intact. Where the Power Plant Construction results in
an upgrade to BellSouth's existing power plant, upon termination of this
Amendment, such upgrades shall become the property of BellSouth.
D. Security Escort. A security escort will be required whenever
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Interconnector or its approved agent desires access to the entrance manhole or
must traverse a restricted area within BellSouth's central office. Rates for a
BellSouth security escort are assessed in one-half (1/2) hour increments
according to the schedule appended hereto as Exhibit A.
E. Rate "True-Up". The Parties agree that the interim prices reflected
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herein shall be "trued-up" (up or down) based on final prices either determined
by further agreement or by final order, including any appeals, in a proceeding
involving BellSouth before the regulatory authority for the State in which the
services are being performed or any other body having jurisdiction over this
Amendment (hereinafter "Commission"). Under the "true-up" process, the interim
price for each service shall be multiplied by the volume of that service
purchased to arrive at the total interim amount paid for that service ("Total
Interim Price"). The final price for that service shall be multiplied by the
volume purchased to arrive at the total final amount due ("Total Final Price').
The Total Interim Price shall be compared with the Total Final Price. If the
Total Final Price is more than the Total Interim Price, Interconnector shall pay
the difference to BellSouth. If the Total Final Price is less than the Total
Interim Price, BellSouth shall pay the difference to Interconnector. Each party
shall keep its own records upon which a "true-up" can be based and any final
payment from one party to the other shall be in an amount agreed upon by the
Parties based on such records. In the event of any disagreement as between the
records or the Parties regarding the amount of such "'true-up," the Parties
agree that the Commission shall be called upon to resolve such differences.
F. Other. Payment of all other charges under this Amendment shall be due
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thirty (30) days after receipt of the xxxx (payment due date). Interconnector
will pay a late payment charge of one and one-half percent (1-1/2%) assessed
monthly on any balance which remains unpaid after the payment due date.
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VI. INSURANCE
A. Interconnector shall, at its sole cost and expense, procure, maintain
and keep in force insurance as specified in this Article VI and underwritten by
insurance companies licensed to do business in the states contained in Exhibit B
attached hereto and having a BEST Insurance Rating of B ++ X (B ++ ten).
B. Interconnector shall maintain the following specific coverages:
1. Commercial General Liability coverage in the amount of ten million
dollars ($10,000,000.00) or a combination of Commercial General Liability and
Excess/Umbrella coverage totaling not less than ten million dollars
($10,000,000.00). BellSouth shall be named as an ADDITIONAL INSURED on ALL
applicable policies as specified herein.
2. Statutory Workers Compensation coverage and Employers Liability
coverage in the amount of one hundred thousand dollars ($100,000.00) each
accident, one hundred thousand dollars ($100,000.00) each employee by disease,
and five hundred thousand dollars ($500,000.00) policy limit by disease.
3. Interconnector may elect to purchase business interruption and
contingent business interruption insurance, having been advised that BellSouth
assumes no liability for loss of profit or revenues should an interruption of
service occur.
C. The limits set forth in Article VI.B above may be increased by
BellSouth from time to time during the term of this Amendment upon thirty (30)
days notice to Interconnector to at least such minimum limits as shall then be
customary with respect to comparable occupancy of BellSouth structures.
D. All policies purchased by Interconnector shall be deemed to be primary
and not contributing to or in excess of any similar coverage purchased by
BellSouth. All insurance must be in effect on or before the date equipment is
delivered to BellSouth's Central Office and shall remain in effect for the term
of this Amendment or until all Interconnector's property has been removed from
BellSouth's Central Office, whichever period is longer. If Interconnector fails
to maintain required coverages, BellSouth may pay the premiums thereon and seek
reimbursement of same from Interconnector.
E. Interconnector shall submit certificates of insurance reflecting the
coverages required pursuant to this Section a minimum of ten (10) days prior to
the commencement of any work in the Collocation Space. Interconnector shall
arrange for BellSouth to receive thirty (30) days advance notice of cancellation
from Interconnector's insurance company. Interconnector shall forward a
certificate of insurance and notice of cancellation to BellSouth at the
following address:
BellSouth Telecommunications, Inc.
Attn: Risk Management Coordinator
0000 Xxxxxxxxx Xxxxxxx, X0XX
Xxxxxxxxxx, Xxxxxxx 00000
F. Interconnector must conform to recommendations made by BellSouth's fire
insurance company to the extent BellSouth has agreed to, or shall hereafter
agree to, such recommendations.
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G. Failure to comply with the provisions of this Section will be deemed a
material breach of this Amendment.
VII. MECHANICS LIENS
If any mechanics lien or other liens shall be filed against property of
BellSouth, or any improvement thereon by reason of or arising out of any labor
or materials furnished or alleged to have been furnished or to be furnished to
or for Interconnector or by reason of any changes, or additions to BellSouth
property made at the request or under the direction of the Interconnector,
Interconnector shall, within thirty (30) days after receipt of written notice
from BellSouth either pay such lien or cause the same to be bonded off
BellSouth's property in the manner provided by law. Interconnector shall also
defend on behalf of BellSouth, at Interconnector's sole cost and expense, any
action suit or proceeding which may be brought for the enforcement of such liens
and Interconnector shall pay any damage and discharge any judgment entered
thereon.
VIII. INSPECTIONS
BellSouth shall conduct an inspection of Interconnector's equipment and
facilities in the Collocation Space(s) prior to the activation of facilities
between Interconnector's equipment and equipment of BellSouth. BellSouth may
conduct an inspection if Interconnector adds equipment and may otherwise conduct
routine inspections at reasonable intervals mutually agreed upon by the Parties.
BellSouth shall provide Interconnector with a minimum of forty-eight (48) hours
or two (2) business days, whichever is greater, advance notice of all such
inspections.
IX. SECURITY
Only BellSouth employees, BellSouth certified vendors and authorized employees
or agents of Interconnector will be permitted in the BellSouth Central Of rice.
Interconnector shall provide its employees and agents with picture
identification which must be worn and visible at all times while in the
Collocation Space or other areas in or around the Central Office. BellSouth may
refuse entry to any person who fails to display the identification required by
this section.
X. INDEMNITY/LIMITATION OF LIABILITY
A. Liability Cap.
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1. With respect to any claim or suit, whether based in contract,
tort or any other theory of legal liability, by Interconnector, any
Interconnector customer or by any other person or entity, for damages associated
with any of the services provided by BellSouth pursuant to or in connection with
this Amendment, including but not limited to the installation, provision,
preemption, termination, maintenance, repair or restoration of service, and
subject to the provisions of the remainder of this Article,
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BellSouth's liability shall be limited to an amount equal to the proportionate
charge for the service provided pursuant to this Amendment, for the period
during which the service was affected. Notwithstanding the foregoing, claims for
damages by Interconnector, by any Interconnector customer or by any other person
or entity resulting from the gross negligence or willful misconduct of BellSouth
and claims for damages by Interconnector resulting from the failure of BellSouth
to honor in one or more material respects any one or more of the material
provisions of this Amendment shall not be subject to such limitation of
liability.
2. With respect to any claim or suit, whether based in contract, tort
or any other theory of legal liability, by BellSouth, any BellSouth customer or
by any other person or entity, for damages associated with any of the services
provided by Interconnector pursuant to or in connection with this Amendment,
including but not limited to the installation, provision, preemption,
termination, maintenance, repair or restoration of service, and subject to the
provisions of the remainder of this Article, Interconnector's liability shall be
limited to an amount equal to the proportionate charge for the service provided
pursuant to this Amendment for the period during which the service was affected.
Notwithstanding the foregoing, claims for damages by BellSouth, any BellSouth
customer or any other person or entity resulting from the gross negligence or
willful misconduct of Interconnector and claims for damages by BellSouth
resulting from the failure of Interconnector to honor in one or more material
respects any one or more of the material provisions of this Amendment shall not
be subject to such limitation of liability.
B. Neither Party shall be liable for any act or omission of any other
telecommunications company to the extent such other telecommunications company
provides a portion of a service provided by Interconnector to its customers.
C. Neither Party shall be liable for damages to the other Party's terminal
location, point of interconnection, or the other Party's customers' premises
resulting from the furnishing of a service, including but not limited to the
installation and removal of equipment and associated wiring, except to the
extent the damage is caused by such Party's gross negligence or willful
misconduct.
D. No Consequential Damages - Except as otherwise provided in this Article
X, neither Party shall be liable to the other Party for any indirect,
incidental, consequential, reliance, or special damages suffered by such other
Party (including without limitation damages for harm to business, lost revenues,
lost savings, or lost profits suffered by such other Party), regardless of the
form of action, whether in contract, warranty, strict liability, or tort,
including without limitation negligence of any kind whether active or passive,
and regardless of whether the Parties knew of the possibility that such damages
could result. Each Party hereby agrees to hold harmless the other Party and
such other Party's affiliates, and their respective officers, directors,
employees and agents from all such damages. Provided, however, nothing
contained in this Article X shall limit a Party's liability to the other for (i)
willful or intentional misconduct, gross negligence, or failure to honor one or
more of the material provisions of this Amendment in one or more material
respects; (ii) bodily injury, death or damage to tangible real or tangible
personal property proximately caused by a Party's negligent act or omission or
that of its agents, subcontractors or employees, nor shall anything contained in
this Article X limit the Parties' indemnification obligations as specified
herein.
E. Obligation to Indemnify.
-----------------------
1. Each Party (the "Indemnifying Party") shall, and hereby agrees to,
defend at the other Party's request, indemnify and hold harmless the other Party
and each of its officers, directors, employees and agents (each, an
"Indemnitee") against and in respect of any loss, debt, liability, damage,
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obligation, claim, demand, judgment or settlement of any nature or kind, known
or unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, accounting or otherwise)
(collectively, "Damages") arising out of, resulting from or based upon any
pending or threatened claim, action, proceeding or suit by any third party (a
"Claim") (i) arising from any breach of any representation, warranty or covenant
made by such indemnifying party in this Amendment, or (ii) based upon injuries
or damage to any person or property arising out of or in connection with this
Amendment that are the result of the Indemnifying Party's actions, breach of
Applicable Law, or the actions of the Indemnifying Party's employees, agents and
subcontractors.
2. Promptly after receipt of notice of any Claim or the commencement
of any action for which a Party may seek indemnification pursuant to this
Article X, the Indemnitee shall promptly give written notice clearly referencing
this Article X to the Indemnifying Party of such Claim or action; provided,
however, the Indemnitee's failure to so notify the Indemnifying Party will not
relieve the latter from any liability it may have to the Indemnitee except to
the extent the Indemnifying Party is actually prejudiced by such failure. The
Indemnitee shall cooperate, at the indemnifying Party's expense, with all
reasonable requests made by the Indemnifying Party for assistance or information
relating to such Claim or action. The Indemnitee will have the right to
participate in the investigation, defense and settlement of such Claim or
action, with separate counsel chosen and paid for by the Indemnitee. However,
the Indemnifying Party will have the right to control the defense and settlement
of such Claim or action.
F. Each Party's failure to perform under this Amendment shall be excused
by labor strikes, civil commotion, criminal actions taken against them, acts of
God, and other circumstances beyond their reasonable control.
G. The obligations of the Parties contained within this Article X shall
survive the expiration of this Amendment.
XI. PUBLICITY
Either Party agrees to submit to the other Party all advertising, sales
promotion, press releases, and other publicity matters relating to this
Amendment or mentioning or implying the tradenames, logos, trademarks or service
marks (hereinafter "Marks") of the other Party and/or any of its affiliated
companies or language from which the connection of said Marks therewith may be
inferred or implied, or mentioning or implying the names of any personnel of the
other Party and/or any of its affiliated companies, and each Party further
agrees not to publish or use such advertising, sales promotions, press releases,
or publicity matters without the other Party's prior written consent.
XII. DESTRUCTION OF COLLOCATION SPACE
In the event a Collocation Space is wholly or partially damaged by fire,
windstorm, tornado, flood or by similar causes to such an extent as to be
rendered wholly unsuitable for Interconnector's permitted use hereunder, then
either party may elect within ten (10) days after such damage, to terminate this
Amendment, and if either party shall so elect, by giving the other written
notice of termination, both parties shall stand released of and from further
liability under the terms hereof. If the Collocation Space shall suffer only
armor damage and shall not be rendered wholly unsuitable for Interconnector's
permitted use, or
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is damaged and the option to terminate is not exercised by either party,
BellSouth covenants and agrees to proceed promptly without expense to
Interconnector, except for improvements not the property of BellSouth, to repair
the damage. BellSouth shall have a reasonable time within which to rebuild or
make any repairs, and such rebuilding and repairing shall be subject to delays
caused by storms, shortages of labor and materials, government regulations,
strikes, walkouts, and causes beyond the control of BellSouth, which causes
shall not be construed as limiting factors, but as exemplary only. Where allowed
and where practical in the sole judgment of BellSouth, Interconnector may erect
a temporary facility while BellSouth rebuilds or makes repairs. In all cases
where the Collocation Space shall be rebuilt or repaired, Interconnector shall
be entitled to an equitable abatement of rent and other charges, depending upon
the unsuitability of the Collocation Space for Interconnector's permitted use,
until such Collocation Space is fully repaired and restored and Interconnector's
equipment installed therein (but in no event later than thirty (30) days after
the Collocation Space is fully repaired and restored).
XIII. EMINENT DOMAIN
If the whole of a Collocation Space shall be taken by any public authority under
the power of eminent domain, then this Amendment shall terminate as of the day
possession shall be taken by such public authority and rent and other charges
for the Collocation Space shall be paid up to that day with proportionate refund
by BellSouth of such rent and charges as may have been paid in advance for a
period subsequent to the date of the taking. If any part of the Collocation
Space shall be taken under eminent domain, BellSouth and Interconnector shall
each have the right to terminate this Amendment and declare the same null and
void, by written notice of such intention to the other party within ten (10)
days after such taking.
XIV. FORCE MAJEURE
Neither party shall be in default by reason of any failure in performance of
this Amendment, in accordance with its terms and conditions, if such failure
arises out of causes beyond the control of the nonperforming party including,
but not restricted to, acts of God, acts of government, insurrections, fires,
floods, accidents, epidemics, quarantines, restrictions, strikes, freight
embargoes, inability to secure raw materials or transportation facilities, acts
or omissions of carriers or any and all other causes beyond the party's control.
XV. ASSIGNMENT
Interconnector acknowledges that this Amendment does not convey any right, title
or interest in the Central Office to Interconnector. Interconnector may not
sublet its rights under this Amendment, nor shall it allow a third party to use
or occupy the Collocation Space at any time or from time to time without the
prior written consent, and at the sole discretion, of BellSouth. This Amendment
is not assignable by either party without the prior written consent of the other
party, and any attempt to assign any of the rights, duties or obligations of
this Amendment without such consent is void. Notwithstanding the foregoing,
either party may assign any rights, duties or obligations of this Amendment to a
parent, subsidiary or affiliate without the consent of the other party.
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XVI. NONEXCLUSIVITY
Interconnector understands that this Amendment is not exclusive and that
BellSouth may enter into similar agreements with other parties. Assignment of
space pursuant to all such agreements shall be determined by space availability
and made on a first come, first served basis.
XVII. NO IMPLIED WAIVER
No consent or waiver by either party to or of any breach of any covenant, term,
condition, provision or duty of the other party under this Amendment shall be
construed as a consent to or waiver of any other breach of the same, or any
other covenant, term, condition, provision or duty. No such consent or waiver
shall be valid unless in writing and signed by the party granting such consent
or waiver.
XVIII. NOTICES
Except as otherwise provided herein, any notices or demands that are required by
law or under the terms of this Amendment shall be given or made by
Interconnector or BellSouth in writing and shall be given by hand delivery, or
by certified or registered mail, and addressed to the Parties as follows:
To BellSouth: To Interconnector:
------------ ------------------
BellSouth Telecommunications, Inc. DeltaCom, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx X0X0 000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxxx Xxxx
With copy to:
-------------
DeltaCom, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Such notices shall be deemed to have been given in the case of certified or
registered mail when deposited in the United States mail with postage prepaid.
XIX. RESOLUTION OF DISPUTES
Except as otherwise stated in this Amendment, the Parties agree that if any
dispute arises as to the interpretation of any provision of this Amendment or as
to the proper implementation of this Amendment, the parties will petition the
Commission in the state where the services are provided pursuant to this
Amendment for a resolution of the dispute. However, each party reserves any
rights it may have to seek judicial review of any ruling made by the Public
Service Commission concerning this Amendment.
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XX. SECTION HEADINGS
The section headings used herein are for convenience only, and shall not be
deemed to constitute integral provisions of this Amendment.
XXI. AUTHORITY
Each of the parties hereto warrants to the other that the person or persons
executing this Amendment on behalf of such party has the full right, power and
authority to enter into and execute this Amendment on such party's behalf and
that no consent from any other person or entity is required as a condition
precedent to the legal effect of this Amendment.
XXII. REVIEW OF AMENDMENT
The parties acknowledge that each has had an opportunity to review and negotiate
this Amendment and has executed this Amendment only after such review and
negotiation. The parties further agree that this Amendment shall be deemed to
have been drafted by both Licensor and Licensee and the terms and conditions
contained herein shall not be construed any more strictly against one party or
the other. This Amendment is entered without prejudice to any positions which
either Party has taken, or may take in the future, before any legislative,
regulatory, judicial or other governmental body.
The Parties agree that all of the other provisions of the Interconnection
Agreement dated March 12, 1997, including any amendments thereto, shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives in one or more counterparts, each of which shall
constitute an original, on the date indicated below.
BELLSOUTH TELECOMMUNICATIONS, DELTACOM, INC.
INC.
/s/ Xxxxx Xxxxxxx /s/ Xxx Xxxxxx
----------------------------- -----------------------------
Authorized Signature Authorized Signature
Xxxxx X. Xxxxxxx Xxx Xxxxxx
----------------------------- -----------------------------
Print or Type Name Print or Type Name
Director Sr. Vice President
----------------------------- -----------------------------
Title Title
10/3/97 10/2/97
----------------------------- -----------------------------
Date Date
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EXHIBIT A
Page 1 of 3
SCHEDULE OF RATES AND CHARGES
Rate Element Description Type of Charge Charge
------------------------ -------------- ------
Application Fee NRC (per Arrangement, per C.O.) $3,850.00
Subsequent Application Fee (Note 1) NRC (per Arrangement, per C.O.) $1,600.00
Space Preparation Fee (Note 2) NRC (per Arrangement, per C.O.) ICB
Space Enclosure Construction Fee (Note 2) NRC (per 100 square feet) $4,500.00
Space Preparation and Construction
Reimbursement for ATHNGAMA NRC (see Note 3) $26,000.00
Additional Engineering Fee (Note 4) NRC ICB
Cable Installation NRC (per entrance cable) $2,750.00
Floor Space Zone A RC (per square foot) $7.50
Zone B RC (per square foot) $6.75
Power RC (per amp) $5.00
Cable Support structure RC (per entrance cable) $13.35
Cross-Connects 2-wire RC (per cross-connect) $0.30
4-wire RC (per cross-connect) $0.50
DS1 RC (per cross-connect) $8.00
DS3 RC (per cross-connect) $72.00
2-wire NRC (first cross-connect) $19.20
4-wire NRC (first cross-connect) $19.20
DS1 NRC (first cross-connect) $155.00
DS3 NRC (first cross-connect) $155.00
2-wire NRC (each additional cross-connect) $19.20
4-wire NRC (each additional cross-connect) $19.20
DS1 NRC (each additional cross-connect) $27.00
DS3 NRC (each additional cross-connect) $27.00
POT Bay 2-wire RC (per cross-connect) $0.40
4-wire RC (per cross-connect) $1.20
DS1 RC (per cross-connect) $1.20
DS3 RC (per cross-connect) $8.00
Additional Security Access Cards NRC-ICB (each) $10.00
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EXHIBIT A
Page 2 of 3
SCHEDULE OF RATES AND CHARGES (CONT.)
Rate Element Description Type of Charge Charge
------------------------ -------------- ------
Direct Connection (Note 5)
(1) Fiber Arrangement RC (per cable, per linear foot) $0.06
-with Initial Application NRC (per arrangement) n/a
-Subsequent to Application NRC (per Arrangement) $246.00
(2) Copper or Coaxial Arrangement RC (per cable, per linear foot) $0.03
-with Initial Application NRC (per Arrangement) n/a
-Subsequent to Application NRC (per Arrangement) $246.00
Security Escort
Basic - first half hour NRC-ICB $41.00
Overtime - first half hour NRC-ICB $48.00
Premium - first half hour NRC-ICB $55.00
Basic - additional half hour NRC-ICB $25.00
Overtime - additional half hour NRC-ICB $30.00
Premium - additional half hour NRC-ICB $35.00
Notes
-----
NRC: Non-recurring Charge - one-time charge
RC: Recurring Charge - charged monthly
ICB: Individual Case Basis - one-time charge
(1) Subsequent Application Fee. BellSouth requires the submission of an
--------------------------
Application Fee for modifications to an existing arrangement. However, when
the modifications do not require BellSouth to expend capital (e.g.,
additional space or power requirements, BST termination/cross-connect
equipment, etc.), BellSouth will assess the Subsequent Application Fee in
lieu of the Application Fee.
(2) Space Preparation Fee. The Space Preparation Fee is a one-time fee,
---------------------
assessed per arrangement, per location. It recovers costs associated with
the shared physical collocation area within a central office, which include
survey, engineering, design and building modification costs. BellSouth will
pro rate the total shared space preparation costs among the collocators at
each location based on the amount of square footage occupied by each
collocator. This charge may vary depending on the location and the type of
arrangement requested.
Space Enclosure Construction Fee. The Space Enclosure Construction Fee is a
--------------------------------
one-time fee, assessed per enclosure, per location. It recovers costs
associated with providing an optional equipment arrangement enclosure,
which include architectural and engineering fees, materials, and
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EXHIBIT A
Page 3 of 3
SCHEDULE OF RATES AND CHARGES (CONT.)
Notes (cont.)
-------------
(2) (cont.)
installation costs. This fee is assessed in 50 square-foot increments, with
a minimum space enclosure size of 100 square feet. Interconnector may, at
its option, arrange with a BellSouth certified contractor to construct the
space enclosure in accordance with BellSouth s guidelines and
specifications. In this event, the contractor shall directly xxxx
Interconnector for the space enclosure, and this fee shall not be
applicable.
(3) A one-time fee of twenty-six thousand dollars ($26,000) shall be charged
for the one hundred (100) square-foot fire-walled enclosure currently
occupied by Interconnector in the ATHNGAMA Central Office when
Interconnector elects to convert such arrangement in place from Virtual
Collocation to Physical Collocation. Should additional construction work
be required to either "make-ready" the space per Interconnector's request
or to enclose additional square footage, BellSouth shall assess
construction charges on an individual ease basis. Such construction
charges will be provided by BellSouth in the Application Response.
(4) Additional Engineering Fee. BellSouth's engineering and other labor costs
--------------------------
associated with establishing the Physical Collocation Arrangement shall be
recovered as Additional Engineering charges, under provisions in
BellSouth's F.C.C. Number 1 Tariff, Sections 13.1 and 13.2. An estimate of
the Additional Engineering charges shall be provided by BellSouth in the
Application Response.
(5) Direct Connection. As stated in Article I.B of the Collocation Agreement,
-----------------
Interconnector may connect to other interconnectors within the designated
Central Office in addition to, and not in lieu of, interconnection to
BellSouth services and facilities. Interconnector must use its Certified
Vendor to place the direct connection. The Direct Connection NRC is
assessed when direct connection is the only work requested by
Interconnector. If any other work in addition to the direct connection is
being requested, whether for an initial installation of a Collocation Space
or for an augmentation to an existing Collocation Space, an Application Fee
or a Subsequent Application Fee will be assessed in lieu of the Direct
Connection NRC. Construction charges may also apply; BellSouth shall
provide an estimate of these charges in the Application Response.
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EXHIBIT B
BONA FIDE PHYSICAL COLLOCATION ARRANGEMENTS
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
CENTRAL OFFICE NAME:
CENTRAL OFFICE CLLI CODE:
CITY:
STATE:
DATE OF BONA FIDE FIRM ORDER:
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