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Exhibit 10.35
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IRU AGREEMENT
DATED AS OF October 5, 1998
BY AND BETWEEN
QWEST COMMUNICATIONS CORPORATION ("Qwest")
AND
GLOBIX CORPORATION ("Globix")
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TABLE OF CONTENTS
Page
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1. DEFINITIONS.............................................................................................. 1
2. GRANT OF IRU IN QWEST NETWORK............................................................................ 2
3. CONSIDERATION FOR GRANT OF IRU........................................................................... 4
4. DELIVERY, ACCEPTANCE AND TESTING OF SEGMENTS............................................................. 4
5. TERM..................................................................................................... 5
6. NETWORK ACCESS AND CAPACITY CONFIGURATION................................................................ 5
7. OPERATIONS............................................................................................... 6
8. MAINTENANCE AND RESTORATION OF QWEST CAPACITY............................................................ 7
9. ACCESS TO QWEST POPS..................................................................................... 8
10. USE OF QWEST CAPACITY.................................................................................... 8
11. INDEMNIFICATION.......................................................................................... 9
12. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTEE......................................................... 10
13. INSURANCE................................................................................................ 11
14. LATE PAYMENTS AND PERFORMANCES........................................................................... 11
15. LIMITATION ON IRU GRANT.................................................................................. 11
16. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS........................................................... 11
17. NOTICE................................................................................................... 11
18. CONFIDENTIALITY.......................................................................................... 12
19. DEFAULT.................................................................................................. 13
20. TERMINATION.............................................................................................. 14
21. FORCE MAJEURE............................................................................................ 14
22. WAIVER................................................................................................... 14
23. GOVERNING LAW............................................................................................ 15
24. RULES OF CONSTRUCTION.................................................................................... 15
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25. REPRESENTATIONS AND WARRANTIES........................................................................... 15
26. PUBLICITY................................................................................................ 16
27. ASSIGNMENT............................................................................................... 16
28. NO PERSONAL LIABILITY.................................................................................... 16
29. RELATIONSHIP OF THE PARTIES.............................................................................. 16
30. SEVERABILITY............................................................................................. 17
31. COUNTERPARTS............................................................................................. 17
32. ENTIRE AGREEMENT; AMENDMENT.............................................................................. 17
EXHIBITS
EXHIBIT A: QWEST CAPACITY DESCRIPTION
EXHIBIT B: QWEST CAPACITY SPECIFICATIONS AND ACCEPTANCE TESTING
EXHIBIT C: QWEST ESCALATION AND CONTACT LIST
EXHIBIT D: QWEST CAPACITY TECHNOLOGY UPGRADE
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GLOBIX IRU AGREEMENT
THIS IRU AGREEMENT (this "Agreement") is made and entered into as of
the _____ day of ___________, 1998 ("Effective Date"), by and between QWEST
COMMUNICATIONS CORPORATION, a Delaware corporation ("Qwest"), and GLOBIX
CORPORATION, a Delaware corporation ("Globix").
RECITALS
WHEREAS, Qwest desires to hereby grant and Globix desires to be granted
the right to use Capacity in Qwest's Network as more fully set forth herein.
NOW THEREFORE, in consideration of the mutual promises set forth below,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
1.1 The following terms shall have the stated definitions in this
Agreement.
"Affiliate" means any person (i) which directly or indirectly controls
or is controlled by, or is under common control with, a party hereto or (ii) 10%
of which is held beneficially or of record by a party hereto or one of its
subsidiaries.
"Capacity" means the dedicated digital transmission capability of a
given portion of the Qwest Network designed to transmit digital signals at a
stated rate and otherwise perform in accordance with the specifications
applicable to the portion of the Qwest Network utilized to provide the Capacity.
All Capacity shall be provided by network facilities inclusive of all
electronics and other equipment necessary for the intended operation of the
Capacity; provided, however, that interruptions, outages, or degradations in the
actual transmission capability of the Capacity may occur from time to time.
"DS-0" means a quantity of Capacity capable of a data rate of
approximately 64 kbs per second.
"DS-0 V&H Miles" means the quantity of DS-0 times the V&H Miles for
each Qwest Network segment, including, without limitation, the V&H Miles for the
respective city pairs set forth in Exhibit A hereto.
"DS-3" means a quantity of Capacity capable of a data rate of
approximately 45 Mbs per second.
"Impositions" means all taxes, fees, levies, imposts, duties, charges
or withholdings of any nature (including, without limitation, gross receipts
taxes and franchise, license and permit fees), together with any penalties,
fines or interest thereon arising out of the transactions contemplated by this
Agreement and/or imposed upon the Qwest Network by any federal, state or local
government or other public taxing authority.
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"Indefeasible Right of Use" or "IRU" means an exclusive,
non-cancelable, indefeasible right of use "as is and where is," for the purposes
described herein, in the stated amount of Capacity on a Qwest Network Segment;
provided, that the IRUs granted hereunder do not provide Globix with any
ownership interest in or other rights to physical access to, control of,
modification of, encumbrance in any manner of, or other use of the Qwest Network
except as expressly set forth herein.
"OC-3" means a quantity of Capacity capable of a data rate of
approximately 155.520 Mbs per second.
"OC-12" means a quantity of Capacity capable of a data rate of
approximately 622.080 Mbs per second.
"OC-48" means a quantity of Capacity capable of a data rate of
approximately 2488.32 Mbs per second.
"POP" means the point of presence where the Capacity is delivered to
Globix.
"Qwest Network" means the fiber optic network operated by Qwest.
"Qwest Network Segment" means the portions of the Qwest Network between
the points set forth in Exhibit A hereto, as such network may be expanded or
modified during the term of this Agreement, and including any fiber optic
transmission capacity which Qwest may obtain from another service provider and
make available to Globix hereunder.
"Upgrade Deadline Date" is December 31, 1999.
"V&H Miles" is a measurement of the length in miles between the
termination points of a Qwest Network Segment using airline miles and determined
based on the vertical and horizontal geographic coordinates of the locations of
the termination points.
2. GRANT OF IRU IN QWEST NETWORK
2.1 Qwest hereby grants to Globix an Indefeasible Right of Use, for the
purposes described herein, in 6,537 DS-3 V&H Miles of Capacity (the "Total IRU
DS-3 V&H Miles") in the Qwest Network, for the Term defined in Section 5.1, all
on the terms and subject to the conditions set forth herein (the "Domestic
IRU"). As Qwest's schedule for making Capacity available permits, 5,647 DS-3 V&H
Miles of Capacity between the city pairs identified under Domestic City Pairs
Phase 1 in Exhibit A hereto shall be made available to Globix. When 2,107 DS-3
V&H Miles of Capacity between the city pairs of Houston-Miami, Miami-Atlanta,
and Atlanta-Washintgon, D.C., the city pairs under Domestic City Pairs Phase 2
in Exhibit A hereto, becomes available to Globix (the "Phase 2 Availability
Date"), the 1,217 DS-3 V&H Miles of Capacity provided between Houston and
Washington, D.C. under Domestic City Pairs Phase 1 in Exhibit A hereto shall be
terminated. After the Phase 2 Availability Date, the total quantity of DS-3 V&H
Miles of Capacity made available to Globix pursuant to this Agreement shall be
6,537 DS-3 V&H Miles of Capacity between the domestic city pairs identified in
Exhibit A hereto but not including the city pair of Houston-Washington, D.C. For
the year ending on the
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Upgrade Deadline Date (the "First Year"), subject to section 2.4, any
capacity provided during the First Year under the Domestic IRU shall be
configured at an OC-3 level.
2.2 Except as expressly set forth in the following sub-paragraphs, all
Capacity comprising a portion of the Globix IRU shall be delivered to Globix at
a cross-connect panel located in the Qwest POP in each designated city as set
forth in Exhibit A hereto. Unless Globix has separately arranged for co-location
space in any such Qwest facility, it shall be the responsibility of Globix to
obtain any required transiting facilities or local distribution facilities to
interconnect with the Qwest Capacity.
2.3 Qwest hereby grants to Globix an Indefeasible Right of Use, for the
purposes described herein, in DS-3 configured Capacity on Qwest's Gemini
submarine cable system between the international city pair identified in Exhibit
A hereto, for the Term defined in Section 5.1, all on the terms and subject to
the conditions set forth herein (the "International IRU"). The Domestic IRU and
the International IRU are hereinafter referred to as the "Globix IRU."
2.4 Qwest hereby grants Globix an option (the "Upgrade Option") to
maintain the Capacity of the Domestic IRU up to an OC-3 level after the Upgrade
Deadline Date. In the event Globix fails to exercise the Upgrade Option any and
all capacity provided under the Domestic IRU shall be reduced to a DS-3 level.
The Upgrade Option shall be exercised on or before the Upgrade Deadline Date by
delivery to Qwest of a valid written notice of exercise accompanied by the
payment (the "Increase Payment") required pursuant to section 3.5 below.
2.5 If, at Qwest's discretion, Qwest plans to upgrade the Qwest Network
subject to the Globix IRU to either sixteen (16) or thirty two (32) lambda
technology as defined in Exhibit D, Qwest shall provide to Globix ninety (90)
days prior written notice of the planned upgrade (the "Upgrade Notification
Date"). Upon notification of the upgrade, Globix shall have the option (the
"Technology Option") to increase all and no less than all of Globix's Capacity
acquired pursuant to this Agreement, provided (i) Qwest upgrades the Qwest
Network in which Globix is granted the Globix IRU, (ii) Globix is not in default
under this Agreement, and (iii) Globix pays the cost for the increased Capacity
pursuant to Section 3.2 and Exhibit D. In the event Globix wishes to exercise
the Technology Option, the capacity increase acquired pursuant to the Technology
Option shall be proportional to Globix's share of the same fibers on which the
Capacity of the Globix IRU is provided. Payment by Globix to Qwest for increased
capacity acquired pursuant to exercise of the Technology Option shall be made in
accordance with Section 3 below. Qwest's current network Capacity, the capacity
increase permitted by the Technology Option, and the costs involved in
calculating payment for such capacity increase are described in Exhibit D
hereto. For each upgrade, Globix shall exercise the Technology Option once by
delivery to Qwest of a single valid written notice of exercise accompanied by
any payment required pursuant to Section 3. The Technology Option shall be
exercised on a date (the "Upgrade Exercise Date") on or before ninety (90) days
from the Upgrade Notification Date.
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3. CONSIDERATION FOR GRANT OF IRU
3.1 In consideration of the grant of the Globix IRU described in
Article 2 above by Qwest to Globix, Globix agrees to pay to Qwest an IRU fee of
Nine Million One Hundred Ninety Two Thousand One Hundred Seventy Six U.S.
Dollars (US$9,192,176.00) (the "IRU Fee").
TABLE 3.1--COST PER DS-0 V&H MILE
DS-3 to OC-48 Capacity Configuration Cost Per DS-0 V&H Mile
US $ 1.50
Monthly O&M Charges for 20 years US $.0035
3.2 Globix shall pay to Qwest ten percent (10%) of the IRU Fee upon
execution of this Agreement. From the Effective Date to the first anniversary of
the Effective Date, as Capacity is accepted by Globix, the amount due and
payable is calculated by multiplying ninety percent (90%) of the IRU Fee
("Balance") by the quantity of DS-3 V&H Miles of Capacity being accepted by
Globix and dividing by the quantity of DS-3 V&H Miles described in section 2.1
above. On the first anniversary of the Effective Date of this Agreement, any
Balance amount that has not yet been paid to Qwest is due and payable regardless
of whether Globix has accepted any or all of the Capacity subject to Qwest
making such Capacity available to Globix.
3.3 In the event that the quantity of Qwest Capacity acquired by Globix
as set forth in Exhibit A of this Agreement is greater than the quantity of DS-3
V&H miles described in section 2.1 above, Globix shall pay to Qwest an amount
equal to US$1.50 multiplied by the number of DS-0 V&H Miles of such difference
in quantity of Capacity.
3.4 Globix shall pay the maintenance charges set forth in Article 8.
3.5 The Increase Payment shall be Eleven Million Three Hundred Eighty
Four Thousand Three Hundred Fifty Two U.S. Dollars (US$11,384,352.00).
4. DELIVERY, ACCEPTANCE AND TESTING OF SEGMENTS
4.1 Capacity will be made available to Globix by Qwest as Qwest's
schedule for building capacity permits. Capacity provided pursuant to the
International IRU may be accepted sometime between October 1, 1998 and December
31, 1998.
4.2 At delivery the Qwest Capacity shall comply with the specifications
set forth in Exhibit B hereto (Qwest Capacity Specifications and Acceptance
Testing). Qwest shall test the Qwest Capacity in accordance with the procedures
specified in Exhibit B to verify that the Qwest Capacity is operating in
accordance with the applicable specifications described in Exhibit B. Qwest
shall provide Globix with reasonable advance notice of the date and time of each
Qwest Capacity
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acceptance test (each of which shall take place during normal business hours)
such that Globix shall have the right, but not the obligation, to have a person
or persons present to observe the tests.
4.3. In the event the results of any Qwest Capacity acceptance test
show that the Qwest Capacity is not operating within the parameters of the
applicable specifications set forth in Exhibit B, Qwest shall expeditiously take
such action as shall be reasonably necessary, with respect to such portion of
the Qwest Capacity as does not operate within the parameters of the applicable
specifications, to bring the operating standards of such portion of the Qwest
Capacity within such parameters.
4.4 If and when Qwest notifies Globix that the test results of the
Qwest Capacity acceptance test are within the parameters of the specifications
in Exhibit B with respect to the tested Qwest Capacity, Globix shall provide
Qwest with a written notice accepting such Qwest Capacity. If Globix fails to
notify Qwest of its acceptance or rejection of the final test results with
respect to the Qwest Capacity within ten (10) business days after its receipt of
notice of such test results, Globix shall be deemed to have accepted such Qwest
Capacity. The date of such notice of acceptance (or deemed acceptance) of the
Qwest Capacity shall be the "Acceptance Date" for that Qwest Capacity.
5. TERM
5.1 The term of this Agreement (the "Term") shall begin on the
Effective Date (provided that the grant of the IRU hereunder with respect to any
Capacity shall not become effective until the Acceptance Date for that
Capacity); and, subject to the provisions of Section 5.2, shall continue until
the earlier of:
(a) 20 years from the last Acceptance Date of Capacity
provided hereunder (provided that the grant of IRU hereunder
with respect to any Capacity shall not be longer than 20 years
from the Acceptance Date for that Capacity pursuant to Article
4); or
(b) the date on which Globix notifies Qwest in writing that
the Capacity subject to this Agreement has, in Globix's view,
reached the end of its economically useful life and that
Globix desires to not retain the Globix IRU in such Capacity.
5.2 Upon the expiration of the Term hereof all of Globix's rights to
the use of the Capacity subject to this agreement shall revert to Qwest without
reimbursement of any fees or other payments previously made with respect
thereto, and from and after such time Globix shall have no further rights or
obligations with respect thereto.
6. NETWORK ACCESS AND CAPACITY CONFIGURATION
6.1 Qwest will provide Globix with access to the Capacity at designated
POPs at the city pairs described in Exhibit A hereto.
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6.2 In the event that Globix desires to reconfigure the location or
quantity of Capacity it acquires hereunder so as to be different than the
configuration set forth on Exhibit A hereto, Globix shall notify Qwest of its
desired reconfiguration.
(a) Subject to availability, Qwest will implement the
reconfiguration of the Capacity as requested by Globix,
subject to the following conditions: Subject to the terms set
forth in Section 2.5 of this Agreement, Qwest shall have the
sole and exclusive discretion to determine whether Globix may
have Capacity in excess of OC-48 on any Qwest Network Segment.
(b) Subsequent to the initial configuration, a Non-Recurring
Charge ("NRC") equal to US$5,000.00 shall be applicable to
each reconfiguration which requires the physical rerouting of
a circuit on which Capacity is provided. As an example and
without limiting the generality of the above, if Capacity is
being provided between New York and Los Angeles via Denver,
and a new drop and insert point is desired in Denver, no NRC
would apply; however, if a new drop and insert point in
Chicago were requested, the NRC would apply.
(c) Qwest shall recompute the V&H Miles utilized by the
reconfigured Capacity. If the quantity of V&H Miles utilized
by the reconfigured Capacity is less than the quantity of V&H
Miles before the reconfiguration, Qwest shall not pay Globix
for any part of the difference. In the event the quantity of
V&H Miles utilized by the reconfigured Capacity is greater
than the quantity of V&H Miles before the reconfiguration,
Globix shall pay to Qwest for the difference: at the rate of
US$1.50 per DS-0 V&H Mile for a configured segment.
7. OPERATIONS
7.1 Except as may be expressly set forth in this Agreement, the grant
of any IRU under this Agreement shall not provide the recipient of the IRU any
authority to control any network and service configuration or designs, routing
configurations, regrooming, rearrangement or consolidation of channels or
circuits or any related functions with regard to the Qwest Network.
7.2 At any time during the term of this Agreement, by not less than 120
days written notice to Globix, Qwest, with Globix's prior written approval
(which approval shall not be unreasonably delayed or withheld) may substitute
for the Capacity being provided on any Qwest Network Segment, an equal amount of
Capacity along an alternative route; provided that in any such event, such
substitution (i) shall be without unreasonable interruption of service and use,
(ii) shall be at the sole cost of Qwest including, without limitation, all
disconnect and reconnect costs, fees and expenses, (iii) shall be in accordance
with the specifications set forth in Exhibit B, and (iv) shall not result in an
adverse change to the operations, performance, or connection points of Globix's
business or network.
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8. MAINTENANCE AND RESTORATION OF QWEST CAPACITY
8.1 Qwest will provide or cause to be provided maintenance for the
Qwest Capacity using its standard maintenance procedures, which procedures shall
be consistent with telecommunications industry standards. The monthly charge for
maintenance of the Qwest Capacity between all the domestic city pairs identified
in Exhibit A hereto excluding the Houston-Washington, D.C. city pair shall be
Thirteen Thousand Two Hundred Eighty Two U.S. Dollars (US $13,282.00) (the
"Domestic Maintenance Fee"). In the event that Globix exercises the Upgrade
Option, the Domestic Maintenance Fee shall thereafter be U.S. Dollars (US
$39,845.00). The monthly charge for maintenance of the Qwest Capacity between
the international city pair identified in Exhibit A hereto (the "International
Maintenance Fee") shall be Ten Thousand U.S. Dollars (US $10,000.00). From the
Effective Date to the first anniversary of the Effective date, the monthly
charge that Globix shall pay to Qwest for maintenance of the Qwest Capacity
shall be the sum of (i) the Domestic Maintenance Fee multiplied by the quantity
of DS-3 V&H Miles of Capacity that Globix has accepted and divided by the Total
IRU DS-3 V&H Miles and (ii) the International Maintenance Fee. Beginning on the
first anniversary of the Effective Date, the monthly charge for maintenance
shall be the greater of (i) the sum of the International Maintenance Fee and the
Domestic Maintenance Fee (the "Minimum Maintenance Fee") or (ii) the sum of (a)
the International Maintenance Fee and (b) the number of DS-0 V&H Miles of
Capacity between domestic city pairs made available to Globix hereunder
multipled by US$0.0035 (the "Monthly Maintenance Rate"). The Minimum Maintenance
Fee and the Monthly Maintenance Rate shall be subject to an annual CPI
adjustment, beginning on the first anniversary of the Effective Date based on
increases in the United States Bureau of Labor Statistics, CPI-U All Services
Index; provided that the annual adjustment shall not exceed 3%.
8.2 Qwest will use reasonable commercial efforts to provide the
maintenance services described in this Article. Such maintenance does not ensure
the continuous operation of the Qwest Capacity in accordance with the
specifications set forth in Exhibit B at all times during the Term. Globix
acknowledges that service interruptions, outages, or degradations may occur, and
agrees that any such event shall not constitute a default by Qwest under this
Agreement.
8.3 GLOBIX ACKNOWLEDGES THE POSSIBILITY OF AN UNSCHEDULED, CONTINUOUS
AND/OR INTERRUPTED PERIOD OF TIME WHEN ANY OR ALL CAPACITY PROVIDED HEREUNDER IS
"UNAVAILABLE" (AS DEFINED IN THE SPECIFICATIONS SET FORTH IN EXHIBIT B)
(HEREAFTER AN "OUTAGE"). IN THE EVENT OF AN OUTAGE, GLOBIX SHALL BE ENTITLED TO
A CREDIT (THE "OUTAGE CREDIT") DETERMINED ACCORDING TO THE FOLLOWING: $45 PER
HOUR FOR AN OUTAGE FOR A DS-3; $137 PER HOUR FOR AN OUTAGE FOR AN OC-3; AND $550
PER HOUR FOR AN OUTAGE FOR AN OC-12; $2,200 PER HOUR FOR AN OUTAGE FOR AN OC-48.
CAPACITY SHALL BE "unavailable" for at least two consecutive hours before an
Outage Credit shall apply. The Outage Credit shall apply to the monthly
Maintenance Fee or, at Globix's discretion, toward any future purchase of
Capacity under separate terms and conditions. The length of each Outage shall be
calculated in hours and shall include fractional portions thereof. An Outage
shall be deemed to have commenced upon verifiable notification thereof by Globix
to Qwest, or, when indicated by network control information actually known to
Qwest network personnel, whichever is earlier. Each Outage shall be deemed to
terminate upon restoration of the affected Globix IRU as evidenced by
appropriate network tests by Qwest. Qwest shall give notice to Globix of any
scheduled outage as early as is practicable, and a
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scheduled outage shall under no circumstance be viewed as an Outage hereunder.
Outage Credits shall not be granted if the malfunction of any end-to end circuit
is due to an Outage or other defect occurring in Globix's interconnection with
the Qwest Network. Following receipt of Globix's request for credit and at
Globix's discretion, all Outage Credits shall either be a credit towards (1) the
Monthly Maintenance Fee on the next monthly invoice for the affected Capacity,
or (2) future purchases of Capacity under separate terms and conditions . The
total of all Outage Credits applicable to or accruing in any given month shall
not exceed the amount payable by Globix to Qwest for that same month for such
Capacity. The Outage Credit described in this Section shall be the sole and
exclusive remedy of Globix in the event of any Outage, and under no circumstance
shall an outage be deemed a default under this Agreement.
8.4 Globix shall notify Qwest to report an Outage by using the contact
numbers on the "Escalation and Contact List" appended hereto as Exhibit C.
Globix shall call the 24 Hours Response "Hot-Line" (First Level Escalation) and
send a facsimile to the Ring Operations Center to report an Outage.
8.5 Qwest shall use commercially reasonable efforts to ensure and
certify that all vendor software and/or hardware used in connection with the
Services provided hereunder are fully Year 2000 compliant.
9. ACCESS TO QWEST POPS
9.1 Globix and its designees (such as local telecommunications
providers) shall have access, according to standards reasonable in the
telecommunications industry, to the Qwest POPs at the endpoints of each Qwest
Network Segment and shall have the right to interconnect with Qwest's Capacity
according to the standards and procedures regularly established by Qwest.
10. USE OF QWEST CAPACITY
10.1 Globix warrants that its use of the Qwest Capacity shall comply
with all applicable government codes, ordinances, laws, rules, regulations
and/or restrictions.
10.2 Globix agrees and acknowledges that this Agreement grants no right
to use any element of the Qwest Network other than the Capacity granted herein.
Globix shall keep any and all of the Qwest Network, other than the Capacity,
free from any liens, rights or claims of any third party attributable to Globix
that materially, adversely affect or impair Qwest's exclusive use of the Qwest
Network.
10.3 Globix shall be responsible for its own configuration and use of
the Qwest Capacity; including the provision of all interconnection facilities,
network equipment, testing equipment and procedures, maintenance, and other
facilities or actions necessary to utilize the Qwest Capacity. Globix shall
conduct all such operations and use of the Qwest Capacity in manner which does
not interfere with the operations of the Qwest Network or the use thereof by any
other customer of Qwest. Globix shall comply at all times with the operating
procedures and interconnection requirements of Qwest.
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10.4 Globix shall include in each Globix agreement or tariff covering
any service provided to any third party through use of the Qwest Capacity a
provision which has the legal consequence of limiting the liability of Globix
thereunder for interruptions, failures, or degradation of service to the charges
received by Globix for such service.
10.5 Globix and Qwest each agree to cooperate with and support the
other in complying with any requirements applicable to their respective rights
and obligations hereunder by any governmental or regulatory agency or authority.
11. INDEMNIFICATION
11.1 Subject to the provisions of Article 12, Qwest hereby releases and
agrees to indemnify, defend, protect and hold harmless Globix, its employees,
officers, directors, agents, shareholders and affiliates, from and against, and
assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any person or entity (including reasonable
attorneys' fees and costs) to the extent arising out of or
resulting from the acts or omissions, negligent or otherwise,
of Qwest, its officers, employees, servants, affiliates,
agents, contractors, licensees, invitees or vendors arising
out of or in connection with a default by Qwest in the
performance of its obligations under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by Qwest of any regulation, rule, statute or court
order of any local, state or federal governmental agency,
court or body in connection with the performance of its
obligations under this Agreement; and
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third
party as a result of Globix's use of the IRU and the Capacity
in accordance with the provisions of this Agreement.
11.2 Subject to the provisions of Article 12, Globix hereby releases
and agrees to indemnify, defend, protect and hold harmless Qwest, its employees,
officers, directors, agents, shareholders and affiliates, from and against, and
assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any person or entity (including reasonable
attorneys' fees and costs) to the extent arising out of or
resulting from the acts or omissions, negligent or otherwise,
of Globix, its officers, employees, servants, affiliates,
agents, contractors, licensees, invitees or vendors arising
out of or in connection with a default by Globix in the
performance of its obligations under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by Globix of any regulation, rule, statute or court
order of any local, state or federal governmental agency,
court or body in connection with its use of the IRU and/or the
Capacity hereunder; and
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(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third
party as a result of Globix's use of the IRU and/or the
Capacity not in accordance with the provisions of this
Agreement.
11.3 The parties hereby expressly recognize and agree that each party's
said obligation to indemnify, defend, protect and save the other harmless is not
a material obligation to the continuing performance of the parties' other
obligations, if any, hereunder. In the event that a party shall fail for any
reason to so indemnify, defend, protect and save the other harmless, the injured
party hereby expressly recognizes that its sole remedy in such event shall be
the right to bring an arbitration proceeding pursuant to the terms of this
Agreement against the other party for its damages as a result of the other
party's said failure to indemnify, defend, protect and save harmless. These
obligations shall survive the expiration or termination of this Agreement.
11.4 Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages against any third
party, including indirect, special or consequential damages, based on any acts
or omissions of such third party as such acts or omissions may affect the
construction, operation or use of the Capacity or the Qwest Network; provided,
however, that each party hereto shall assign such rights or claims, execute such
documents and do whatever else may be reasonably necessary to enable the other
party to pursue any such action against such third party.
12. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTEE
12.1 Qwest warrants that the Capacity shall operate in accordance with
the standards established by Qwest for the Qwest Network generally (hereinafter
the "Technical Standards"). If Qwest determines that the Capacity is not being
provided in accordance with the Technical Standards, Qwest shall use reasonable
efforts under the circumstances to conform the Capacity to the Technical
Standards.
12.2 THE WARRANTIES CONTAINED IN SECTION 12.1 OF THIS AGREEMENT ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. QWEST HEREBY SPECIFICALLY DISCLAIMS ANY
LIABILITY TO GLOBIX FOR INTERRUPTIONS AFFECTING THE CAPACITY FURNISHED HEREUNDER
WHICH ARE ATTRIBUTABLE TO GLOBIX'S INTERCONNECTION FACILITIES OR TO GLOBIX'S
EQUIPMENT FAILURES, OR TO GLOBIX'S BREACH OF THIS AGREEMENT.
12.3 Notwithstanding any provision of this Agreement to the contrary,
in no event shall Qwest or any of its Affiliates be liable to Globix or any of
its Affiliates or employees or to any third party for: (a) any loss of profit or
revenue, or for any indirect, consequential, incidental, punitive or similar or
additional damages, whether incurred or suffered as a result of unavailability
of facilities or Capacity, performance, non-performance, termination, breach, or
other action or inaction under this agreement, or for any other reason, even if
Globix advises
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Qwest of the possibility of such loss or damage; or (b) for any outage or
incorrect or defective transmissions, or any direct or indirect consequences
thereof.
13. INSURANCE
13.1 During the term of this Agreement, Globix shall obtain and
maintain, at its expense, an appropriate insurance policy with terms and
coverage thresholds equal to or greater than the industry standard for major
global telecommunications carriers for protection against all risks associated
with the Capacity as reasonably deemed necessary by Globix acting reasonably.
14. LATE PAYMENTS AND PERFORMANCES
14.1 In the event a party shall fail to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date such
payment is due until paid, including accrued interest, at an annual rate equal
to one hundred fifty percent (150%) of the prime rate of interest published by
The Wall Street Journal as the base rate on corporate loans posted by a
percentage of the nation's largest banks on the date any such payment is due or,
if lower, the highest percentage allowed by law.
15. LIMITATION ON IRU GRANT
15.1 Although the IRU permits non-cancelable use thereof, the IRU
granted in this Agreement does not provide Globix with any ownership or other
posessory interests in any real property, conduit, fiber, or equipment in or on
the Qwest Network or along the routes of the Qwest Network.
16. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
16.1 Each party shall be independently responsible for any Impositions
properly payable with respect to the Capacity acquired by said party pursuant to
the IRU Agreement entered into hereunder. Further, the parties agree that they
will cooperate with each other and coordinate their mutual efforts concerning
audits, or other such inquiries, filings, reports, etc., as may relate solely to
the activities or transactions arising from or under this Agreement, which may
be required or initiated from or by any duly authorized governmental tax
authority.
17. NOTICE
17.1 Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be addressed to the other party as follows:
If to Qwest: Qwest Communications Corporation
ATTENTION: President
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to: Qwest Communications Corporation
ATTENTION: General Counsel
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Globix: Globix Corporation
ATTENTION: Xxxx Xxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Millberg Xxxxx Bershad Xxxxx & Lerach LLP
Xxx Xxxxxxxxxxxx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
or at such other address as either party may designated from time to time in
writing to the other party.
17.2 Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. mail, postage prepaid, or by commercial
overnight delivery service, or transmitted by facsimile, and shall be deemed
served or delivered to the addressee or its office when received at the address
for notice specified above when hand delivered, upon confirmation of sending
when sent by fax, on the day after being sent when sent by overnight delivery
service, or three (3) days after deposit in the mail when sent by U.S. mail.
18. CONFIDENTIALITY
18.1 Qwest and Globix hereby agree that if either party provides
confidential or proprietary information to the other party ("Proprietary
Information"), such Proprietary Information shall be held in confidence, and the
receiving party shall afford such Proprietary Information the same care and
protection as it affords generally to its own confidential and proprietary
information (which in any case shall be not less than reasonable care) in order
to avoid disclosure to or unauthorized use by any third party. This Agreement,
including all of the terms, conditions and provisions hereof, constitutes
Proprietary Information, and all information disclosed by either party to the
other in connection with or pursuant to this Agreement shall be deemed to be
Proprietary Information, provided that written information is clearly marked in
a conspicuous place as confidential or proprietary, and verbal information is
indicated as being confidential or proprietary when given or promptly confirmed
in writing as such thereafter. All Proprietary Information, unless otherwise
specified in writing, shall remain the property of the disclosing party, shall
be used by the receiving party only for the intended purpose, and such written
Proprietary Information, including
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all copies thereof, shall be returned to the disclosing party or destroyed after
the receiving party's need for it has expired or upon the request of the
disclosing party. Proprietary Information shall not be reproduced except to the
extent necessary to accomplish the purposes and intent of this Agreement, or as
otherwise may be permitted in writing by the disclosing party.
18.2 The foregoing provisions of Section 18.1 shall not apply to any
Proprietary Information which (i) becomes publicly available other than through
the recipient; (ii) is required to be disclosed by a governmental or judicial
law, order, rule or regulation; (iii) is independently developed by the
disclosing party; or (iv) becomes available to the disclosing party without
restriction from a third party. If any Proprietary Information is required to be
disclosed pursuant to the foregoing clause (ii), the party required to make such
disclosure shall promptly inform the other party of the requirements of such
disclosure.
18.3 Notwithstanding Sections 18.1 and 18.2 of this Article, either
party may disclose Proprietary Information to its employees, agents, and legal,
financial, and accounting advisors and providers (including its lenders and
other financiers) to the extent necessary or appropriate in connection with the
negotiation and/or performance of this Agreement or its obtaining of financing,
provided that each such party is notified of the confidential and proprietary
nature of such Proprietary Information and is subject to or agrees to be bound
by similar restrictions on its use and disclosure.
18.4 The provisions of this Article 18 shall survive expiration or
termination of this Agreement.
19. DEFAULT
19.1 A party shall be in default under this Agreement sixty (60) days
after the non-defaulting party shall have given written notice of such default
unless the defaulting party shall have cured such default or such default is
otherwise waived by the non-defaulting party within such sixty (60) days;
provided, however, that where any such default other than the payment of money
cannot reasonably be cured within such 60-day period, if the defaulting party
shall proceed promptly to cure the same and prosecute such cure with due
diligence, the time for curing such default shall be extended for such period of
time not to exceed one hundred twenty (120) days as may be necessary to complete
such cure.
19.2 An event of default for Globix also shall include, but not be
limited to, failure to make any payment when due hereunder. Events of default
for Qwest include breach of any material provision hereof, the making of a
general assignment for the benefit of its creditors, the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against either party which is not dismissed within ninety
(90) days thereafter, or the filing by either party of any petition or answer
seeking, consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution, or similar relief.
19.3 In addition to the specific remedies provided hereunder, upon any
payment or other default by a party, after notice thereof the non-defaulting
party may (i) take such action as it determines, in its sole discretion, to be
necessary to correct the default, and/or (ii) pursue any legal
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remedies it may have under applicable law or principles of equity relating to
such default, including, without limitation, the termination of any applicable
IRU Agreement provided that appropriate notice has been given under this section
and any such IRU Agreement. Notwithstanding the above, if the defaulting party
certifies in good faith to the non-defaulting party in writing that a default
has been cured, such default shall be deemed to be cured unless the
non-defaulting party otherwise notifies the defaulting party in writing within
fifteen (15) days of receipt of such notice.
20. TERMINATION
20.1 Either party may terminate this Agreement upon the failure of the
other party to cure an event of default as required by Article 19. In the event
of a termination of this Agreement by Globix due to Qwest's failure to cure a
default, Qwest shall refund to Globix a pro rata share of the IRU Fee in
accordance with the following formula: Remaining time on the term of Capacity
accepted hereunder multiplied by the amount already paid for such Capacity
divided by 240 months. The period of time remaining on the term of each Capacity
accepted hereunder shall be calculated in months and shall include fractional
portions thereof.
20.2 Notwithstanding the foregoing, no termination or expiration of
this Agreement shall affect the rights or obligations of any party hereto with
respect to any then existing defaults or the obligation to make any payment
hereunder for services rendered prior to the date of termination or expiration.
21. FORCE MAJEURE
21.1 Neither party shall be in default under this Agreement if and to
the extent that any delay in such party's performance of one or more of its
obligations hereunder is caused by any of the following conditions, and such
party's performance of such obligation or obligations shall be excused and
extended for and during the period of any such delay: act of God; fire; flood;
fiber, material shortages or unavailability or other delay in delivery not
resulting from the responsible party's failure to timely place orders therefor;
lack of or delay in transportation; government codes, ordinances, laws, rules,
regulations or restrictions (collectively, "Regulations"); war or civil
disorder; failure of a third party to grant a required right-of-way permit,
easement, or other required authorization for use of the intended right-of-way,
or any other cause beyond the commercially reasonable control of such party. The
party claiming relief under this Article shall notify the other in writing of
the existence of the event relied on and the cessation or termination of said
event.
22. WAIVER
22.1 The failure of either party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance, shall not
be construed as a general waiver or relinquishment on its part of any such
provision, but the same shall nevertheless be and remain in full force and
effect.
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23. GOVERNING LAW
23.1 This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Colorado, without reference to to any
provision thereof which would cause the application of the laws of another
jurisdiction to this agreement.
24. RULES OF CONSTRUCTION
24.1 The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as
amplifying or limiting any of its content. Words in this Agreement which import
the singular connotation shall be interpreted as plural, and words which import
the plural connotation shall be interpreted as singular, as the identity of the
parties or objects referred to may require.
24.2 Unless expressly defined herein, words having well known technical
or trade meanings shall be so construed. All listing of items shall not be taken
to be exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
24.3 Except as set forth to the contrary herein, any right or remedy of
Globix or Qwest shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
24.4 This Agreement has been fully negotiated between and jointly
drafted by the parties.
24.5 In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this Agreement shall
prevail and such Exhibit shall be corrected accordingly.
24.6 All actions, activities, consents, approvals and other
undertakings of the parties in this Agreement shall be performed in a reasonable
and timely manner, it being expressly acknowledged and understood that time is
of the essence in the performance of obligations required to be performed by a
date expressly specified herein. Except as specifically set forth herein, for
the purpose of this Article the normal standards of performance within the
telecommunications industry in the relevant market shall be the measure of
whether a party's performance is reasonable and timely.
25. REPRESENTATIONS AND WARRANTIES
25.1 Each party represents and warrants that:
It has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement;
It has taken all requisite corporate action to approve the execution,
delivery and performance of this Agreement;
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This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject to
bankruptcy, insolvency, creditors' rights and general equitable principles; and
Its execution of and performance under this Agreement shall not violate
any applicable existing regulations, rules, statutes or court orders of any
local, state or federal government agency, court or body of any country or any
contract or other agreement the party is subject to.
26. PUBLICITY
26.1 The parties shall cooperate in developing the content and timing
of all press releases and all other publicity related to the subject matter of
this Agreement.
27. ASSIGNMENT
27.1 Each party may assign its rights and obligations under this
Agreement to any of its Affiliates, successors through merger, or acquirers of
substantially all of its assets without the consent of the other party. All the
rights and benefits of this Agreement shall inure to any successor and assign of
either party hereunder.
27.2 Any attempted assignment except an assignment permitted by Section
27.1 above shall be of no force or effect, and shall be null and void, without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
28. NO PERSONAL LIABILITY
28.1 Each action or claim against any party arising under or relating
to this Agreement shall be made only against such party as a corporation, and
any liability relating thereto shall be enforceable only against the corporate
assets of such party. No party shall seek to xxxxxx the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
party. Each of such persons is an intended beneficiary of the mutual promises
set forth in this Article and shall be entitled to enforce the obligations of
this Article.
29. RELATIONSHIP OF THE PARTIES
29.1 The relationship between Globix and Qwest shall not be that of
partners, agents, or joint venturers for one another, and nothing contained in
this Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. Globix and Qwest, in performing any of their obligations hereunder,
shall be independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
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30. SEVERABILITY
30.1 If any term, covenant or condition contained herein shall, to any
extent, be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
31. COUNTERPARTS
31.2 This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
32. ENTIRE AGREEMENT; AMENDMENT
32.3 This Agreement constitutes the entire and final agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. 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 and agreement to the terms and
conditions contained in this IRU Agreement and intending to be legally bound
hereby, the parties have executed this IRU Agreement as of the date first above
written.
"Qwest":
QWEST COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/
---------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Title: Sr. V.P., Carrier Markets
-------------------------------------
"Globix":
GLOBIX CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: President
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EXHIBIT A: QWEST CAPACITY DESCRIPTION
------------------------------------------------------------------
DOMESTIC CITY PAIRS PHASE 1 V&H Miles
------------------------------------------------------------------
New York Chicago 709
------------------------------------------------------------------
Chicago San Xxxx 1836
------------------------------------------------------------------
San Xxxx XXX 307
------------------------------------------------------------------
LAX Houston 1375
------------------------------------------------------------------
Houston Washington, DC 1217
------------------------------------------------------------------
Washington, DC New York 203
------------------------------------------------------------------
TOTAL: 5,647
------------------------------------------------------------------
------------------------------------------------------------------
DOMESTIC CITY PAIRS PHASE 2 V&H Miles
------------------------------------------------------------------
Houston Miami 967
------------------------------------------------------------------
Miami Atlanta 599
------------------------------------------------------------------
Atlanta Washington, DC 541
------------------------------------------------------------------
TOTAL: 2,107
------------------------------------------------------------------
------------------------------------------------------------------
INTERNATIONAL CITY PAIRS
------------------------------------------------------------------
New York -London
------------------------------------------------------------------
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EXHIBIT B: QWEST CAPACITY SPECIFICATIONS AND ACCEPTANCE TESTING
1. INTERCONNECT SPECIFICATIONS:
1.1 The customer interconnection point of DS-1 & DS-3 signals at the Qwest
(SPT) location will be at an industry standard (DSX-1) & (DSX-3) digital
cross-connect panels and will be referred to as Qwest Network Interface in
this document.
1.2 The DS-1 & DS-3 signals terminating at the Qwest digital cross-connect
panels will meet the electrical specifications as defined in AT&T
Compatibility Bulletin (CB) Xx. 000, Xxxxx 0, Xxxxxxx, 0000.
1.3 The Qwest Digital Network will be compatible with the Xxxx System
hierarchical clock synchronization methods and stratum levels as described
in Bellcore Technical Advisory (GR436-Core).
1.4 Customer equipment must also meet the interconnect specifications listed
above and shall comply with jitter requirements of AT&T Technical Reference
PUB 63411.
2. PERFORMANCE OBJECTIVES:
2.1 DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuit performance
will be measured using two parameters: Availability and Error-Free Seconds.
The following assumptions apply to the derived data:
- The circuits originate and terminate on the SONET OC-48 backbone
- High speed protection switching: 1 for N, where N=2
- MTTR for SONET equipment: 2 hours
- MTTR for fiber optic cable: 12 hours (Bellcore Standard)
- Cable cut rate: 4.39/year/1,000 sheath miles (Bellcore Standard)
The system includes three (3) DCS in Los Angeles, Sacramento, and
San Xxxx (although not all circuits are routed through the DCS,
they are included in all the calculations)
2.2 Availability is a measure of the relative amount of time during which the
circuit is available for use. According to CCITT and ANSI definitions,
unavailability begins when the Bit Error Ratio (BER) in each second is
worse than 1.0 E-3 for a period of 10 consecutive seconds.
INTER OFFICE CHANNEL (IOC) : An Inter Office Channel refers to the Qwest
Communications network between the points of presence (POP).
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OPTICAL CARRIER LEVEL 1 (OC-1) : The optical signal that results from an
optical conversion of an electrical STS-1 signal (51.840 Mb/s). This signal
forms the basis of the interface.
OC-3: Optical Carrier level 3 signal operating at 155.520 Mb/s.
OC-12: Optical Carrier level 12 signal transmitting at 622.080 Mb/s.
OC-48: Optical Carrier level 48 signal transmitting at 2488.32 Mb/s.
POINT OF PRESENCE (POP) : A physical location where a long distance carrier
terminates lines before connecting to the local exchange carrier, another
carrier, or directly to a customer.
2.3 The availability objective for all circuits between Qwest Network Interface
points specified above is to provide performance levels over a 12 month
period as follows:
---------------------------------------------------------------------------------------
V&H MILES DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c
---------------------------------------------------------------------------------------
0-2500 99.999%
---------------------------------------------------------------------------------------
2501-4000 99.998%
---------------------------------------------------------------------------------------
This excludes any customer provided access links to the Qwest digital
network.
2.4 Outages attributable to incidental damage to or severage of outside fiber
optic cable plant, or scheduled maintenance is excluded from the
performance objective stated above.
2.5 Error-Free Seconds (EFS) and Error Seconds (ES) are the primary measure of
error performance. An Error-Free Second is defined as any second in which
no bit errors are received. Conversely, an Error Second is any second in
which one or more bit errors are received.
3. SONET: Synchronous Optical Network is a family of optical transmission
rates and interface standards allowing internetworking of products from
different vendors. Base optical rate is 51.840 Mb/s. Higher rates are
direct multiples.
SONET TRANSPORT: Facilities associated with carrying OC-1 or higher level
signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1): The basic logical building
block electrical signal with a rate of 51.840 Mb/s.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N): This electrical signal is
obtained by byte interleaving N STS-1 signals together. The rate of the
STS-N is N times 51.840 Mb/s.
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TERMINATING MULTIPLEX (TM) : Provides the multiplex functions for
multiplexing and demultiplexing between the DS1 or higher signal level and
the SONET OC-N level.
ACCEPTANCE CRITERIA. The acceptance criteria for DS1, DS3, OC-3, OC-12,
OC-48, OC-3c, OC-12c, and OC-48c circuits between Qwest Network Interface
points is to provide the performance levels shown below during a 60 minute
test period. If no errors are observed during the first 15 minutes of the
test, the facility may be considered acceptable. Access connections to
customer location will be tested in accordance with Xxxx Publication 62508.
- The tables below are based on QCC owned fiber optic network only
and on the Bellcore Specifications of the SONET delivery of DS1,
DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c directly off
the SONET Backbone.
- If the DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c
service is delivered at the STS1 level then the general
performance objectives fall into the industry standard.
DS1, DS3 The table below defines the general performance objectives for DS1
service operating at 1.544 Mb/s, and the general performance objectives for
DS3 service operating at 45 Mb/s.
-----------------------------------------------------------------
V&H MILES EFS BER
-----------------------------------------------------------------
0 - 250 99.988% 10(-15)
-----------------------------------------------------------------
251 - 500 99.983% 10(-15)
-----------------------------------------------------------------
501 - 1000 99.971% 10(-15)
-----------------------------------------------------------------
1001 - 1500 99.959% 10(-15)
-----------------------------------------------------------------
1501 - 2000 99.948% 10(-15)
-----------------------------------------------------------------
2001 - 2500 99.936% 10(-15)
-----------------------------------------------------------------
2501 - 3000 99.925% 10(-15)
-----------------------------------------------------------------
3001 - 3500 99.913% 10(-15)
-----------------------------------------------------------------
3501 - 4000 99.902% 10(-15)
-----------------------------------------------------------------
OC-3, 12, 48; OC-3c, 12c, 48c
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The table below defines the general performance objectives for OC-3, OC-12,
OC-48, OC-3c, OC-12c, and OC-48c.
-----------------------------------------------------------------
V&H MILES EFS BER
-----------------------------------------------------------------
0 - 250 99.989% 10(-15)
-----------------------------------------------------------------
251 - 500 99.984% 10(-15)
-----------------------------------------------------------------
501 - 1000 99.974% 10(-15)
-----------------------------------------------------------------
1001 - 1500 99.964% 10(-15)
-----------------------------------------------------------------
1501 - 2000 99.954% 10(-15)
-----------------------------------------------------------------
2001 - 2500 99.944% 10(-15)
-----------------------------------------------------------------
2501 - 3000 99.933% 10(-15)
-----------------------------------------------------------------
3000 - 3500 99.923% 10(-15)
-----------------------------------------------------------------
3501 - 4000 99.913% 10(-15)
-----------------------------------------------------------------
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EXHIBIT C: QWEST ESCALATION AND CONTACT LIST
ESCALATION AND CONTACT LIST
24 Hours Response "Hot-Line" 000-000-0000
Specialist on Duty Direct Line 000-000-0000
Ring Operations Center Facsimile 000-000-0000
1st Level Escalation
On Duty Supervisor
000-000-0000
Ring Operations Center
2nd Level Escalation
Xxxxx Xxxxxxx
Manager, Ring Operations Center
OFF# 000-000-0000
PGR# 000-000-0000
E-Mail XXXXX.XXXXXXX@XXXXX.XXX
3rd Level Escalation
Xxxxxxxx Xxxxx
Acting Director - Ring Operations Center
OFF# 000-000-0000
PGR# 000-000-0000
CELL# 000-000-0000
E-Mail XXXXXXXX.XXXXX@XXXXX.XXX
ESCALATION TO VP OPS/ROC......THROUGH MANAGER OR DIRECTOR
4th Level Escalation
Xxxx Xxxxxxx
Vice President - Network Services
OFF# 000-000-0000
PGR# 000-000-0000
E-Mail XXXX.XXXXXXX@XXXXX.XXX
ESCALATION BEYOND 4TH LEVEL......THROUGH V.P. OPS/ROC
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EXHIBIT D: QWEST CAPACITY TECHNOLOGY UPGRADE
1. Qwest's current network technology consists of Nortel's four-fiber
bi-directional SONET ring architecture on two fiber strands. It is 8 lambda
technology (4 lambdas in each direction per fiber). For purposes of this
Agreement, an "upgrade" to this system shall mean an improvement on this
technology to, for example, 16 or 32 lambda technology allowing Qwest to derive
more capacity from the same fibers as those carrying Globix's IRU.
2. Proportional share of capacity shall be determined as follows: For example,
assuming Globix has purchased an OC3 on a segment where Qwest is using 8 lambda
technology. Globix's proportional share is 3/(4*192), or 0.39%. If Qwest
upgrades to 16 lambda technology, Globix shall be eligible to purchase one (1)
additional OC3 (0.39% of total system capacity) on the portion upgraded. If
Qwest upgrades to 32 lambda technology, Globix shall be eligible to purchase an
additional three (3) OC3's (1.17% of total system capacity).
3. Proportional cost shall be determined as follows: If Globix were eligible to
purchase an additional OC3 because of Qwest's upgrade to 16 lambda technology,
Globix shall pay to Qwest 0.39% of Qwest's total cost of such upgrade. Total
equipment and installation costs for such upgrade shall include without
limitation transport gear and terminal equipment (optronics), tributary cards
associated with Globix's bandwidth requirements, incremental land & buildings
required to house the upgraded equipment, installation required for the upgrade,
and other miscellaneous costs associated with and required to install the
upgrade without xxxx-up. Engineering and other overhead costs shall also be
included when computing the total cost to Globix.
4. Once complete, Qwest's network will be SONET ring-protected. In the event of
a Qwest upgrade, Qwest must install upgraded SONET ring equipment in all sites
on a particular ring, not just on a particular segment. The capacity purchased
by Globix is ring-protected, as such, Globix's proportional share of the total
costs shall be based on Qwest's total cost to upgrade the ring or rings. The
proportion is still determined based on Note 3, but the total cost will include
costs to upgrade the entire ring.
25
