RACK SPACE AGREEMENT
This Rack Space Agreement (this "Agreement") is made as of the 19th day of
August 1998, by and between IXC CARRIER, INC., a Nevada corporation ("Lessor"),
and STARTEC GLOBAL COMMUNICATIONS CORPORATION, a Maryland corporation,
("Lessee").
BACKGROUND
A.Lessee desires to install and keep certain telecommunications
equipment on the premises of Lessor.
X. Xxxxxx and Lessee desire to set forth the terms and conditions upon
which Lessor shall provide space to Lessee at Lessor's facilities for such
equipment.
TERMS OF AGREEMENT
Accordingly, in consideration of the mutual promises set forth below, the
parties hereby agree as follows:
1. RACK SPACE. Lessor hereby leases to Lessee one (1) standard rack (24 5/16 w
x 15 D x 7 H) spaces for the purpose of installing electronic equipment to
permit Lessee to receive and deliver communications traffic to and from Lessor's
telecommunications network. Such rack space shall be located within the Customer
Interface ("CIF") Room at Lessor's building site (the "Premises") at the address
shown below. Delivery of such communications traffic shall be to the Lessor's
point of demarcation in the Lessor's equipment room. The point of demarcation
shall be a DSX1 or DSX3 as applicable. Signals received at this demarcation
shall meet the then current DSX signal specification. Material and installation
to the demarcation interconnect shall meet IXC approved technical standards and
shall be at the Lessee's expense. Any voice grade facilities (two wire copper)
are not typically available and are excluded from installation under this
agreement. The equipment installed by the Customer must meet IXC installation
standards, as well as all National Electrical Codes (NEC), any local fire and
safety codes and any other applicable safety standards and is subject to
inspection by IXC personnel. Deficiencies or code violations must be corrected
within thirty (30) days of notification or Lessee will be considered in breach
of this Agreement. (A copy of IXC Installation Standards will be available upon
request).
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx
Lessor shall provide (i) twenty (20) amps DC power and twenty (20) amps non-UPS
AC power at the above site and provide access to an AC outlet for test equipment
and occasional use; (ii) lighting; (iii) heating; and (iv) air conditioning for
the Premises (collectively, the "Services").
2. MONTHLY LEASE PAYMENTS. Lessee agrees to pay in advance to Lessor each
month during the term of this Agreement the payment (a "Monthly Lease Payment")
set forth in Exhibit B hereto. The Monthly Lease Payments shall be adjusted upon
the second anniversary of this Agreement and on each second anniversary
thereafter in connection with increases in the Consumer Price Index as set forth
in Exhibit X. Xxxxxx'x invoices for amounts payable hereunder shall be due upon
receipt by Lessee. In the event that any Monthly Lease Payment remains unpaid
after thirty (30) days following the date of the first Lessor invoice for such
payment, such payment shall be subject to a late payment charge equal to the
lesser of (i) one and one-half percent of the unpaid balance per month or (ii)
the maximum rate allowed under applicable state law. Lessor shall send invoices
to Lessee at the address listed herein. Monthly rental payments shall commence
upon completion of Lessor equipment installation.
3. MAINTENANCE, USE AND ALTERATION OF THE PREMISES.
a. Lessor agrees to use reasonable care in maintaining the Premises.
Lessee may make minor alterations at Lessee's expense to the Premises with the
prior written consent of Lessor. Any alteration performed by Lessee shall be
done using reasonable care and shall become the property of Lessor upon the
termination of the Agreement.
x. Xxxxxx shall provide Lessee with a key to the Customer Interface
("CIF") Room located on the Premises. Lessee may access the CIF room at all
times, in accordance with the building security procedures generally applicable
to the Premises, for the purpose of installing, inspecting, maintaining and
removing Lessee's Property. Lessee shall return to Lessor the key to the CIF
room upon termination of the Agreement.
4. PROVISION OF ADDITIONAL Services. Lessee may occasionally request and
Lessor, at its option, shall provide additional services as set forth in Exhibit
C hereto.
5. EFFECTIVENESS AND TERMINATION.
a. TERM. This Agreement is effective as of the date hereof and shall
remain in force and effect for a minimum of two years, ("Initial Term") unless
earlier terminated pursuant to its terms. Thereafter, this Agreement shall
automatically renew for a successive one (1) year term ("Renewal Terms") unless
terminated by either party (i) by sending written notice at least 90 days before
the date of the expiration of the Initial Term; and (ii) if such terms and
conditions are mutually agreeable to the parties.
b. TERMINATION. Either party may terminate this Agreement upon 30 days
written notice to the other party after the failure of such other party to cure
with performance any default in the performance of any obligation within 30 days
of written notice of such default. The cure period shall be the period ending 30
days after such notice of default by Lessor is given.
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c. EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement and except as specifically set forth herein, this Agreement shall no
longer have any force or effect and neither party shall have any further
obligation hereunder. No such expiration or termination shall affect Lessee's
obligation to make the Monthly Lease Payments until the date that the then
current term of the Agreement would have expired (the "Current Term Date")
provided, however, that Lessee shall be entitled to a credit (net of any
expenses incurred by Lessor) in the event that Lessor leases the Premises to
another party prior to the Current Term Date. Upon the expiration or termination
of this Agreement, Lessee shall have 60 days to remove all of Lessee's furniture
and equipment at the Premises ("Lessee's Property"). In the event Lessee fails
to remove Lessee's Property, then Lessor shall have the night to remove Lessee's
Property and Lessee shall pay any cost in connection with such removal.
d. LIMITS OF LIABILITY. Lessor shall use reasonable care in
maintaining the Premises and providing the Services. Notwithstanding the
foregoing, IN no event shall Lessor be liable for any special, incidental,
indirect, punitive, reliance or consequential damages, whether foreseeable or
not, including but not limited to, damage or loss of property or equipment, loss
of profits or revenue, cost of capital, cost of replacement services, or claims
for service interruptions or transmission problems, occasioned by any defect in
the Premises or the Services, delay in availability of the Premises or the
Services or any other cause whatsoever with respect to the Premises, the
Services or this Agreement. Lessor shall not beg liable for any defect with
respect to the Premises or the Services from causes outside its control,
including accidents, cable cuts, floods, emergencies, government regulation,
wars, or acts of God. LESSOR DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES
RELATING TO THE PREMISES OR THE SERVICES, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. However,
other than occurrences which are beyond Lessor's control, Lessor shall be liable
for any equipment damage resulting from power or air conditioning failure in the
space.
6. INDEMNIFICATION.
A. BY LESSEE. Lessee shall indemnify, defend, release and hold
harmless Lessor arid all of its affiliates, agents, clients, consultants,
customers, employees, subcontractors, invitees or licensees from and against any
action, claim, court cost, damage, demand, expense, liability, loss, penalty,
proceeding or suit, (collectively, together with related attorneys' fees,
including costs and disbursements, "Claims") imposed upon Lessor by reason of
damages to property or injuries, including death, as a result of an act (whether
intentional, negligent or otherwise) or omission on the part of Lessee or any of
its affiliates, agents, clients, consultants, customers, employees,
subcontractors, invitees or licensees in connection with the Premises.
B. NOTICE BY LESSOR. In the event my action shall be brought against
Lessor, Lessor shall immediately notify Lessee in writing, and Lessee, upon the
request of Lessor, shall assume the defense thereof on behalf of Lessor, and its
affiliates and shall pay all expenses and
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satisfy all judgments which may be incurred by or rendered against Lessor or its
affiliates in connection therewith, provided that Lessor shall not be liable for
any settlement of any such action effected without its written consent.
7. SURVIVAL. Notwithstanding the termination of this Agreement for any
reason, this Section 6. Indemnification shall survive such termination.
8. INSURANCE. Throughout the term of this Agreement and any extension
thereof, Lessee shall maintain, and, upon written request, shall provide to
Lessor proof of comprehensive general liability insurance with a limit of not
less than $2,000,000 per occurrence for bodily injury liability and property
damage liability, including coverage extensions for blanket contractual
liability, personal injury liability and products and completed operations
liability.
9. ASSIGNMENT. Upon notice to and with the consent of Lessor, Lessee may
make any assignment of rights or interests or delegation of its obligations with
respect to this Agreement. Such consent shall not be unreasonably withheld or
delayed. Lessor may make any assignment of its rights or interests or delegation
of its obligations with respect to this Agreement upon written notice to Lessee.
10. BINDING ARBITRATION. Upon notice to the other party, each party must
refer any dispute or claim arising out of or relating to this Agreement to
arbitration in Austin, Texas, in accordance with the commercial arbitration
rules of the American Arbitration Association then prevailing and, in such event
neither party may commence any action based on such dispute or claim, and, if
any action has been commenced it shall be stayed, pending the outcome of such
arbitration proceeding. Each party shall select one independent arbitrator
within ten days of such notice and the two arbitrators shall then select a third
arbitrator within an additional ten days to form a three-person panel of
arbitrators. The panel of arbitrators shall have the power to order specific
performance if requested. Any award, order, or judgment pursuant specific to
such arbitration shall be deemed final and binding and may be enforced in ally
court of competent jurisdiction. All such arbitration proceedings shall be
conducted on a confidential basis. The panel of arbitrators may, as part of the
arbitration award, permit the substantially prevailing party to recover all or
part of its attorney's fees and other out-of-pocket costs incurred in connection
with such arbitration.
11. WAIVERS AND CONSENTS, No delay in taking, or failure to take, action
with respect to any breach of this Agreement shall constitute a waiver of any
right to take action with respect to such breach or with respect to any
subsequent breach, No waiver of a party's right to take action with respect to,
no consent to, and no acceptance of, any late payment, late or imperfect
performance, or failure to perform on one occasion shall constitute a ,waiver.
of such party's rights to take action with respect to any delay in making, or
failure to make, acceptable performance upon any other occasion. No waiver of,
or delay in taking or failure to take action with respect to, any right, power
or privilege hereunder on one occasion shall constitute a waiver thereof on any
other occasion. No waiver of a party's rights to tike action with respect to any
breach of a
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provision of this Agreement, or of any right, power or privilege hereunder, and
no consent by a party to any breach of a provision of this Agreement, shall be
effective unless set forth in writing and signed by such party.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance HEREOF, shall be governed by
the laws of the State of Texas without regard to its principles of choice of
law.
13. NOTICES. Each notice relating to this Agreement shall be in writing and
shall be: (i) given in person; (ii) sent by registered or certified mail (return
receipt requested) or by courier; or (iii) transmitted by facsimile machine,
with a copy of such transmission delivered by one of the foregoing methods. Each
properly given notice shall be deemed to have been given as of the earlier of
(i) delivery, (ii) four days after the date of mailing, or (iii) the date of
facsimile transmission (receipt of which is orally confirmed or which date is
indicated by the facsimile machine of any party). Notices shall be made to the
following persons at the following addresses and facsimile telephone numbers
(which may be changed only by properly given notice):
If to Lessor: IXC Carrier, Inc.
5000 Plaza on the Lake, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Contract Administration
Facsimile: (000) 000-0000
If to Lessee: Startec Global Communications Corporation
00000 Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and all other documents
specifically referred to herein constitute the entire and final agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. The Exhibits referred to herein are integral
parts hereof and are hereby made a part of this Agreement. This Agreement may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party.
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In confirmation of their consent hereto and intention to be legally bound
hereby, the parties have executed this Agreement below:
IXC CARRIER, INC. STARTEC GLOBAL COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxx
--------------------------------- ---------------------------
(Signature) (Signature)
Xxxxxxx Xxxxx Xxxxx Xxx
--------------------------------- ---------------------------
Vice President, Engineering Dir. of Eng.
--------------------------------- ---------------------------
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EXHIBIT B
Subject to the terms of the Agreement and upon installation of equipment,
Lessee shall pay Four Hundred ($400.00) for the one (1) rack space (the "Rental
Payment") and Two Hundred Fifty ($250.00) for twenty (20) amps of DC power and
Two Hundred Ten ($210.00) for twenty (20) amps of non- UPS AC power. The total
monthly lease payment including normal power usage will be Eight Hundred Sixty
($860.00) The foregoing payments are collectively referred to as the "Monthly
Lease Payments".
In addition, a one time installation charge of Four Thousand ($4,000.00)
for the one (1) rack shall be paid by Lessee to Lessor.
Upon the second anniversary of this Agreement and on each second
anniversary thereafter, the Rental Payment shall be increased by a percentage
equal to the rise in the national Consumer Price Index (the "Consumer Price
Index") for the preceding twelve months. If the Consumer Price Index ceases to
be published or is converted into a different standard reference base or
otherwise revised, such other index as the parties shall agree upon in writing
shall be substituted for the Consumer Price Index; if the parties are unable to
agree as to such substituted index, such matter shall be submitted to
arbitration.
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EXHIBIT C
CUSTOMER MAINTENANCE SUPPORT
IXC Carrier, Inc.'s (hereinafter referred to as IXC) standard fees for
customer maintenance support services are as follows (unless set by precedence
in a service contract):
Maintenance services shall be defined as all work per-formed by IXC on
equipment provided by or on behalf of the Customer, or supervision of the
Customer's work within IXC's terminate facilities. Maintenance Service charges
are not billed for troubles found within that portion of a circuit provided by
IXC. The following billing rates apply for these services:
1. $75 per hour (4 hour minimum-if dispatch is required) Monday through Friday
during the business hours of 8:00 a.m. - 5:00 p.m. local time, exclusive of the
following holidays:
New Years Day
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day and the day after Thanksgiving
Christmas Day
2. $95 per hour (4 hour minimum) for overtime work done after business hours
(defined above) and/or on holidays (defined above) and/or all day on Saturdays
and Sundays.
3. As requests for maintenance services are typically made via telephone, IXC
must be advised, in writing as to the person(s) who are authorized to request
service. It is the Customer's responsibility to keep IXC apprised of any changes
to its list of representative(s),
4. To request technical assistance and help under the maintenance services, a
call must be made to our Network Control Center at 0-000-000-0000. This number
should be used for IXC technical assistance, troubleshooting or testing of
circuits, not for service impairment or outages. The person calling in must be
on the authorized list in order to commit for charges for this technical
assistance. If that person is not on the list, the request cannot be
accommodated.
a. The Network Control Center personnel will take the call, record
the caller's name and phone number along with facts concerning the
assistance and support needed. The caller will then be given the
number of the "Assistance Ticket."
b. Upon completion of work, this "Assistance Ticket" will be given
to IXC's Accounting, Department, and the customer will subsequently be
billed based upon the information on that ticket. A copy will be
attached to the invoice.
5. Except for emergencies, IXC technicians cannot be dispatched unless
requests are made in accordance with the above call-out procedure.
ANCILLARY PRICING SCHEDULE FOR ON-NET SERVICE
NON-RECURRING DS-1 DS-3
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New Order Installation (On-Net) $600.00 $2000.00
New Order Installation (Off-Net) ICB ICB
DS-1 Ramp-Up per DS-0 $ 50.00 N/A
Order Change (less than 5 business days) $ 50.00 $ 50.00
Order Cancellation (less than 5 business days) $250.00 $ 250.00
ASR (new or disconnect) (Special Access Only) $250.00 $ 250.00
ASR Supplement $ 50.00 $ 50.00
Order Expedite $250.00 $ 250.00
Reconfiguration Same as install Same as install
MONTHLY RECURRING CHARGES (MRC) DS-1 DS-3
-------------------------------------------------------------------------------------------------------------------------------
Minimum circuit charge (IXC portion) $300.00 $2,000.00
Cross-connect charge $ 50.00 MRC $ 200.00 MRC
Other Interexchange Carrier to Lessor local access or bypass facility $250.00 NRC $ 500.00 NRC
(Xxxxxx Xxxx haul not involved)
Local bypass charge $200.00 $ 500.00 MRC
Lessor POP to Lessor POP in same city, with no Lessor long haul $250.00 NRC $ 500.00 NRC
attached at either Lessor POP.
MISCELLANEOUS RECURRING NON-RECURRING
-------------------------------------------------------------------------------------------------------------------------------
M13 1 yr Term $875/mo $ 0.00
2+ yr Term $600/mo $ 0.00
3+ yr Term $475/mo $ 0.00
ECHO CANCELLER (per CIRCUIT end) $250/mo $500.00
SECOND END LOOP (Ex: for ADPCM) $ 50/mo $ 50.00
DEMAND MAINTENANCE $75/hr 8 a.m.- 5 p.m. M-F. 4
hour minimum if
dispatch is required; $95/hr after hours
with 4 hour minimum.
RACK SPACE ICB - subject to availability.
SHELF SPACE $ 100/ea/mo ICB install
DC POWER $12.50/amp/mo (5 amp minimum; 5 amp
increments)
CIF AC/DC POWER ICB
ALL OTHER SERVICES See Note (2)
(1) All of the above charges are subject to change with a 30--day notice.
(2) Service not described above will be considered special handling and charges
will be assessed on an individual basis.
DS0 ANCILLARY PRICING
New Order Installation 150.00
Order Cancellation Prior to
Turn up 200.00
Order Expedite 200.00
Reconfirmation 200.00
(City Pairs the Same)
DACS Charge 35.00
(Switching Only)
DS0 DACS Port Charge 25.00
(Xxxx access at DACS)
DS1 DACS Port 125.00
Minimum Charge per DS-0 75.00
Notes:
1. All of the above charges are subject to change with a 30 day notice.
2. Services not described above will be considered special handling and
charges will be assessed on an individual basis.
