\n 1: Dallas -Houston April 30, 1996<\/p>\n 2: Denver -El Paso July 19, 1996<\/p>\n
2A: Lamy -Santa Fe July 19, 1996<\/p>\n
3: Salt Lake City – Santa Clara July 19, 1996<\/p>\n
4: Oakland – Portland Within 540 days following
\n QWEST’s decision required
\n pursuant to Section 1.2 above.<\/p>\n
5: Cleveland – Boston Within 540 days following the
\n QWEST decision required
\n pursuant to Section 1.2 above.<\/p>\n
6: Portland – Seattle January 31, 1997
\n<\/c><\/s><\/caption>\n<\/table>\n
1.5 (a) Subject to extension for delays described in Article XXII,
\nQWEST shall use reasonable commercial efforts to complete all
\nconstruction and testing obligations with respect to each Segment by
\nthe applicable Scheduled Delivery Date. In the event QWEST does not
\ndeliver a Segment by the respective Scheduled Delivery Date, during
\nthe first ten (10) days of the cure period with respect to such
\ndefault provided in Section 20.2, a designated senior representative
\nwith decision-making authority of each of QWEST and WORLDCOM shall
\nmeet to discuss the status of construction, the reason(s) for the
\nfailure to meet the Scheduled Delivery Date, and possible mutual
\nefforts that could be undertaken in order to complete the construction
\nof the relevant Segment in the most expeditious manner feasible under
\nthe circumstances. If such representatives, using their best efforts,
\nare unable within such period to mutually agree upon the manner in
\nwhich construction of such Segment is to be completed, and such
\ndefault is not otherwise cured within the period permitted under
\nSection 20.2, then WORLDCOM shall have the option, at its sole
\ndiscretion, to take over the design, engineering, installation,
\nconstruction, splicing and testing (including, without limitation, all
\nthe activities referred to in Articles III and IV) of such Segment.
\nIn the event WORLDCOM takes over such activities on any Segment as
\npermitted hereunder, QWEST will cooperate fully with WORLDCOM to
\nfinish such Segment and shall directly pay WORLDCOM, when due, for all
\nCosts of WORLDCOM associated with, or incurred in connection with, the
\ncompletion of such Segment.<\/p>\n
(b) If the Scheduled Delivery Date for any Segment has been
\nextended as the result of a Force Majeure delay described in Article
\nXXII for a period of six (6) months (the “Six-Month Force-Majeure
\nPeriod”), and at the end of such Six-Month Force Majeure Period there
\nis no reasonably apparent probability of the cessation, termination or
\nresolution of the event or occurrence causing such Force Majeure delay
\nwithin ninety (90) days after the end of the Six-Month Force Majeure
\nPeriod, then (i) if the Segment or Segments affected by such Force
\nMajeure event include any of Segments 1, 2, 3 or 7, WORLDCOM shall
\nhave the right, in its sole discretion, to terminate this Agreement
\nwith respect to such Segment or Segments, in which case all rights and
\nobligations of WORLDCOM with respect to such Segment or Segments shall
\nterminate, and QWEST shall repay to WORLDCOM any and all amounts
\npreviously paid hereunder with respect to such Segment or Segments
\n(which repayment shall be WORLDCOM’s sole and exclusive remedy in the
\nevent it exercises such right to terminate) and (ii) if the Segment or
\nSegments affected by such Force Majeure event include any other
\nSegment to be delivered hereunder, each of QWEST and WORLDCOM shall
\ndesignate one or more senior representatives with decision-making
\nauthority who shall promptly and, thereafter during a period of not
\nless than sixty (60) days after the Six-Month Force Majeure Period,
\n(A) meet to discuss in good faith and (B) use their mutual best
\nefforts to implement, all possible and practical means by which such
\ndelay might be terminated, avoided or resolved, including, without
\nlimitation, possible modifications to the route or manner of
\nconstruction of the affected Segment. If, by the end of such sixty-day
\ndiscussion period the parties determine that there is no
\nreasonably possible course of action available that would serve to
\nterminate, avoid or resolve the Force Majeure delay, then the
\nprovisions of this Agreement with respect to the affected Segment, and
\nall rights and obligations of the parties with respect to such
\nSegment, shall terminate, subject to the provisions of Section 21.3;
\nprovided that the amount of consideration, if any, to be paid in
\nrespect of such termination shall be negotiated by the parties in good
\nfaith based upon the applicable facts and circumstances at the time,
\nincluding, without limitation, the percentage completion of the
\naffected Segment, the cities or POPs to which connectivity has been
\nestablished prior to such delay, and the resultant commercial value or
\npotential commercial value of the completed portion of the affected
\nSegment, and the particular facts and circumstances of the delay
\nevent.<\/p>\n
1.6 QWEST shall have an option, exercisable until 5:00 p.m.
\nCentral Standard Time on June 19, 1996, to elect to obtain an
\nIndefeasible Right of Use in twelve (12) Dark Fibers in WORLDCOM’s
\nexisting fiber optic cable between San Jose and San Francisco,
\nCalifornia, including the applicable WORLDCOM Associated Property (as
\ndefined in Section 5.1) (the “Optional QWEST IRU”). QWEST shall
\nnotify WORLDCOM in writing by such time whether it has elected to
\nexercise such option. Failure to notify WORLDCOM by such time shall
\nbe deemed a waiver of all QWEST’s rights in such option. If such
\noption is exercised, the Optional QWEST IRU shall be for a term of
\nforty-eight (48) months, or until such earlier time as QWEST, at its
\nsole option and discretion, shall have constructed, installed and
\nactivated its own fiber optic cable system along such route; provided
\nthat QWEST shall give WORLDCOM not less than six (6) months prior
\nwritten notice of the earlier date on which the Optional QWEST IRU
\nshall terminate. As consideration for the grant to QWEST of the
\nOptional QWEST IRU, QWEST shall grant to WORLDCOM, for a term running
\nconcurrently with the term of the Optional QWEST IRU, (i) an
\nassignment of, or other equivalent access interest in, the right to
\nuse twelve (12) Dark Fibers in the CalTrans fiber optic cable system
\nspanning the Bay Bridge (the “CalTrans Fibers”), (ii) an Indefeasible
\nRight-of Use in twelve (12) Dark Fibers in QWEST’s fiber optic system
\nfrom each of the end points of the CalTrans Fibers to WORLDCOM’s POP
\nlocated at 274 Brannon Street in San Francisco, on the one hand, and
\nWORLDCOM’s POP in Oakland identified in Exhibit A with respect to
\nSegment 4, on the other, including the applicable QWEST Associated
\nProperty (the “Connective IRU’), and (iii) an Indefeasible Right of
\nUse in twelve (12) Dark Fibers in the QWEST System in that portion of
\nSegment 3 from Oakland to Santa Clara, including the applicable QWEST
\nAssociated Property (the “O\/SC IRU”); provided that, to the extent the
\naggregate route miles of the CalTrans Fibers, the Connective IRU and
\nthe O\/SC IRU exceed the route miles of the Optional QWEST IRU,
\nWORLDCOM shall pay to QWEST an amount equal to the incremental Cost to
\nQWEST, as indicated in Exhibit J, of the twelve (12) Dark Fibers
\nsubject to the O\/SC IRU, including splicing and testing, for the
\nnumber of route miles by which the aggregate route miles of the
\nCalTrans Fibers, the Connective IRU and the O\/SC IRU exceed the route
\nmiles of the Optional QWEST IRU. Upon the expiration of the term of
\nthe Optional QWEST IRU, all rights of WORLDCOM in, to and under the
\nCalTrans Fibers, the Connective IRU and the O\/SC IRU shall terminate;
\nprovided that if QWEST elects to terminate the Optional QWEST IRU
\nearlier than forty-eight (48) months from the date hereof, WORLDCOM
\nmay elect, by written notice to QWEST, to extend and continue its
\nrights in the CalTrans Fibers for the remainder of such forty-eight
\n(48) months, in which case WORLDCOM shall pay to QWEST any and all
\ncosts incurred by QWEST in maintaining its rights in and to the
\nCalTrans Fibers during such period; and provided further that WORLDCOM
\nmay elect, by written notice to QWEST, to extend and continue the
\nConnective IRU and the O\/SC IRU for the remaining Term of the WORLDCOM
\nIRU (in which case, from and after such time the Connective IRU and
\nthe O\/SC IRU shall be part of the WORLDCOM IRU hereunder). In
\nconsideration of any such extension of the O\/SC IRU, WORLDCOM shall
\npay to QWEST an amount equal to the difference between (A) the payment
\nmade by WORLDCOM pursuant to the proviso in the preceding sentence,
\nand (B) QWEST’s total incremental Cost of the twelve (12) Dark Fibers
\nsubject to the Connective IRU and the O\/SC IRU, including splicing and
\ntesting. If QWEST elects to exercise its option to acquire the
\nOptional QWEST IRU, all of the foregoing shall be memorialized in a
\nseparate definitive agreement, incorporating the foregoing provisions
\nand generally providing for the same rights and obligations of the
\nparties as are provided herein with respect to the WORLDCOM IRU.<\/p>\n
1.7 If, pursuant to Section 1.2, QWEST does not elect to build
\nSegment 6, WORLDCOM hereby grants QWEST an option, exercisable at any
\ntime until 5:00 p.m. Central Standard Time on March 3, 1996, to
\nacquire from WORLDCOM an Indefeasible Right of Use in forty-eight (48)
\nDark Fibers, to be specifically identified (including applicable
\nWORLDCOM Associated Property), in any fiber optic communications
\nsystem along substantially the same route as that of Segment 6 that
\nWORLDCOM may elect to build (the “WORLDCOM Portland\/Seattle System”),
\nfor the Term and on the terms and subject to the conditions set forth
\nherein. QWEST shall notify WORLDCOM in writing by such date whether
\nit has elected to exercise such option, and failure to notify WORLDCOM
\nby such date shall be deemed a waiver of all QWEST’s rights in such
\noption. In consideration of the grant of such IRU, QWEST shall pay to
\nWORLDCOM (i) with respect to twenty-four (24) of the Dark Fibers
\nsubject to such IRU, an amount equal to the route miles of the
\nWORLDCOM Portland\/Seattle System multiplied by $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile, and (ii) with respect to twenty-four (24) of the Dark
\nFibers subject to such IRU, an amount equal to the incremental cost
\nto WORLDCOM of such twenty-four (24) Dark Fibers, including
\ninstallation, splicing and testing as set forth in Exhibit J; provided
\nthat, with respect to the twenty-four (24) Dark Fibers subject to the
\nforegoing clause (ii), the grant of the IRU in, and the delivery to
\nQWEST of, such Dark Fibers shall be subject to and conditioned upon
\nQWEST’s prior written notification to WORLDCOM that QWEST has
\ncommenced construction of the Optional Phoenix\/Los Angeles Segment, as
\nthat term is defined in Section 1.8. All such amounts shall be
\npayable according to the payment methodology applicable under Section
\n2.2(b).<\/p>\n
1.8 If, after the date hereof, QWEST shall notify WORLDCOM in
\nwriting that it has determined, in its sole discretion, to design,
\nengineer, construct and install a fiber optic communications system
\nbetween the cities of Phoenix, Arizona and Los Angeles, California
\n(the route of which system includes San Diego, California) (the
\n“Optional Phoenix\/Los Angeles Segment”), then WORLDCOM shall have the
\noption, exercisable at any time until 5:00 p.m. Central Standard Time,
\nor the date that is thirty (30) days after WORLDCOM’s receipt of such
\nnotice from QWEST, to acquire from QWEST an IRU in twenty-four (24)
\nDark Fibers, to be specifically identified, in the Optional
\nPhoenix\/Los Angeles Segment for the remaining Term of this Agreement.
\nWORLDCOM shall notify QWEST in writing by such time whether it has
\nelected to exercise the option with respect to the Optional
\nPhoenix\/Los Angeles Segment, and failure to notify QWEST by such time
\nshall be deemed a waiver of all of WORLDCOM’s rights in such option.
\nIf QWEST elects to construct the Optional Phoenix\/Los Angeles Segment,
\nthen (i) the end points and construction and delivery schedule for the
\nOptional Phoenix\/Los Angeles Segment shall be as the parties shall
\nmutually agree at the time of such exercise of the option and (H) in
\nconsideration of the grant by QWEST of the IRU in the Optional
\nPhoenix\/Los Angeles Segment, WORLDCOM shall pay to QWEST an amount
\nequal to the route miles of the Optional Phoenix\/San Diego Segment
\nmultiplied by $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile.<\/p>\n
ARTICLE II.<\/p>\n
CONSIDERATION FOR GRANT<\/p>\n
2.1 In addition to the amounts required to be paid pursuant to
\nSections 1.1(b) and 1.1(c) as full and complete payment for the grant
\nof the WORLDCOM IRU as contemplated in Article I, and subject to
\nperformance by QWEST of its obligations hereunder, WORLDCOM agrees to
\npay to QWEST (i) the aggregate amount of $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
for Segments 1, 2 and 3 (the “Segment 1-3 Contract Price”), allocated
\namong such Segments as set forth in Exhibit J and payable according to
\nthe schedule set forth in clause (a) below, (ii) the aggregate amount
\nof<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
for Segments 4, 5 and 6 (the “Segment 4-6 Contract Price”), allocated
\namong such Segments as set forth in Exhibit J and payable according to
\nthe schedule set forth in clause (b) below, (iii) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
for Segment 2A (the “Segment 2A Contract Price”), payable according to
\nthe schedule set forth in clause (a) below, and (iv) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for Segment 7 (in the aggregate, the “Segment 7
\nContract Price”), payable according to the schedule set forth in
\nclause (b) below.<\/p>\n
(a) The Segment 1-3 Contract Price and the Segment 2A
\nContract Price shall be paid as follows:<\/p>\n
(i) An initial deposit of (A)<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Segment 1-3 Contract Price and (B)<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Segment 2A Contract Price is due and payable ten (10) days
\nafter execution hereof.<\/p>\n
(ii) The prorated cost of the WORLDCOM Fiber to be
\nincorporated in each of Segments 1, 2, 2A and 3, including any and all
\ntaxes thereon (the aggregate cost of which for each Segment is as set
\nforth in Exhibit J), is due and payable ten (10) days after each
\nsubmission by QWEST to WORLDCOM of an invoice it has received from the
\nfiber vendor for such WORLDCOM Fiber.<\/p>\n
(iii) <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the remaining balance of (A) the Segment 1-3 Contract Price
\nattributable to each of Segments 1, 2 and 3, as indicated in Exhibit
\nJ, and (B) the Segment 2A Contract Price, in each case after taking
\ninto account the foregoing payments under clauses (i) and (ii) above
\n(with respect to each such Segment, the “Remaining Balance”), is
\npayable ten (10) days after QWEST notifies WORLDCOM in writing that
\nsuch Segment is<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completed, based on percentage installation of the fiber in such
\nSegment.<\/p>\n
(iv) <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Remaining Balance is payable ten (10) days after QWEST
\nnotifies WORLDCOM in writing that the Segment is<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completed, based on percentage installation of the fiber in such
\nSegment.<\/p>\n
(v) <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Remaining Balance is payable ten (10) days after QWEST
\nnotifies WORLDCOM in writing that the Segment is<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completed, based on percentage installation of the fiber in such
\nSegment.<\/p>\n
(vi) <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Remaining Balance is payable ten (10) days after the
\nAcceptance Date of such Segment.<\/p>\n
(vii) A final payment of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of the Remaining Balance is due and payable ten (10) days after the
\ndelivery of final As-Builts for such Segment.<\/p>\n
(b) The Segment 4-6 Contract Price and the Segment 7 Contract
\nPrice shall be paid as follows:<\/p>\n
(i) An initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of (A) the Segment 4-6 Contract Price attributable to each of
\nSegments 4, 5 and 6, as indicated in Exhibit J, is due and payable ten
\n(10) days after notification by QWEST that it has elected to construct
\nany such Segment and (B) the Segment 7 Contract Price is due and
\npayable ten (10) days after notification by WORLDCOM that it has
\nexercised its option with respect to such Segment.<\/p>\n
(ii) The prorated cost of the WORLDCOM Fiber to be
\nincorporated in each of Segments 4, 5, 6 and 7, including any and all
\ntaxes thereon (the aggregate cost of which for each Segment is as set
\nforth in Exhibit J), is due and payable within ten (10) days after
\neach submission by QWEST to WORLDCOM of an invoice it has received
\nfrom the fiber vendor for such WORLDCOM Fiber.<\/p>\n
(iii) Monthly progress payments shall be made with
\nrespect to each such Segment as it is being constructed, such that,
\nafter taking into account the foregoing payments under clauses (i) and
\n(ii) above, and the reserve required to be paid pursuant to clause
\n(iv) below, the remaining balance is paid on a pro rata basis
\naccording to the progress payment schedule described in Exhibit J.<\/p>\n
(iv) A final payment of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of (A) the Segment 4-6 Contract Price attributable to each of
\nSegments 4, 5 and 6, as indicated in Exhibit J, and (B) the Segment 7
\nContract Price is due and payable within ten (10) days after the
\ndelivery of final As-Builts for each such Segment.<\/p>\n
2.2 In addition to the amounts payable under Section 2. 1,
\nWORLDCOM shall be responsible to pay directly or reimburse QWEST for
\nthe pass-through expenses required to be paid pursuant to Article
\nXVII.<\/p>\n
2.3 All payments to QWEST set forth in this Article II shall be
\nmade by wire transfer of immediately available funds to the account or
\naccounts designated by QWEST.<\/p>\n
ARTICLE III.<\/p>\n
CONSTRUCTION OF THE QWEST SYSTEM<\/p>\n
3.1 To the extent any Segment is not completed as of the date
\nhereof, subject to the provisions of Sections 1.2 and 1.3, as
\napplicable, QWEST shall design, engineer, install, construct, and test
\nthe QWEST System comprised of such Segments on the terms and subject
\nto the conditions set forth herein.<\/p>\n
3.2 Subject to the provisions of Sections 1.2 and 1.3, as
\napplicable, QWEST shall engineer and design Segments 4, 5 and 6 (and
\nany other Segment if and to the extent that conduit construction is
\nnot completed on the date hereof) consistent with the construction
\nspecifications set forth in Exhibit B, including preparation of
\nconstruction drawings, bills of materials, materials specifications
\nand materials requisitions. The specifications covering the
\nconstruction and testing of such Segments shall be as set forth in
\nExhibit C and Exhibit D, respectively.<\/p>\n
3.3 Subject to the provisions of Sections 1.2 and 1.3, as
\napplicable, with respect to Segments 4, 5 and 6 (and any other Segment
\nif and to the extent that conduit construction is not completed on the
\ndate hereof), QWEST shall perform, in accordance with QWEST’s standard
\nengineering practices, all necessary engineering, design and
\nconstruction activities necessary to install, test and deliver the
\nWORLDCOM Fibers in accordance with the provisions hereof.<\/p>\n
3.4 Subject to the provisions of Sections 1.2 and 1.3, as
\napplicable, with respect to Segments 4, 5 and 6 (and any other Segment
\nif and to the extent that conduit construction is not completed on the
\ndate hereof), QWEST shall perform, in accordance with QWEST’s standard
\ncommercial practices and as deemed necessary or appropriate in QWEST’s
\nreasonable business judgment, all necessary right-of-way, easement and
\nland acquisition activities necessary to install, test and deliver the
\nWORLDCOM Fibers in accordance with the provisions hereof, free from
\ninterference by, or infringement of the rights of, third parties.<\/p>\n
3.5 QWEST shall procure all materials to be incorporated in and to
\nbecome a permanent part of the QWEST System with respect to the
\nSegments delivered hereunder.<\/p>\n
3.6 Subject to the provisions of Sections 1.2 and 1.3, as
\napplicable, QWEST shall perform, in accordance with its standard
\ncommercial practices, all supervisory and inspection services relating
\nto the construction of Segments 4, 5 and 6 (and any other Segment if
\nand to the extent that conduit construction is not completed on the
\ndate hereof), including, without limitation:<\/p>\n
(a) Performing construction inspection prior to completion of
\neach such Segment to assure that all construction shall be in
\naccordance with the specifications, drawings, easement provisions,
\nprovisions of this Agreement, and applicable codes. WORLDCOM shall
\nhave the right, but not the obligation, to inspect all right-of-way
\ndocuments pertinent to each such Segment (to the extent that the terms
\nof each such document permits disclosure to WORLDCOM), and the
\ninstallation, splicing and testing of the WORLDCOM Fiber incorporated
\nin such Segments during the course and at the time of the relevant
\ndesign, construction and installation periods for each portion of such
\nSegment.<\/p>\n
(b) Preparing bimonthly engineering progress reports and
\nconstruction progress reports.<\/p>\n
3.7 Upon WORLDCOM’s written request, QWEST shall make available
\nfor inspection by WORLDCOM copies of all information, documents,
\nreports, permits, drawings and specifications generated, obtained or
\nacquired by QWEST in performing its duties pursuant to this Article
\nIII (to the extent that the terms of each such document or the legal
\nrestrictions applicable to such information or document permits
\ndisclosure to WORLDCOM).<\/p>\n
3.8 Exhibit G (“Existing Regeneration Sites”) sets forth the
\nexisting sites along the QWEST System right-of-way at which
\nregeneration facilities currently are located on that portion of
\nSegment 3 between Santa Clara and Salt Lake City. In the event that
\nWORLDCOM desires to locate and construct or share regeneration
\nfacilities at any of such sites, or at any additional potential sites
\nalong the QWEST System that QWEST may make available, assuming (i) the
\navailability of adequate and sufficient real property rights, space,
\nand right-of-way access, and (ii) the receipt of all requisite
\npermits, approvals and authorizations, either (A) QWEST shall grant to
\nWORLDCOM an IRU for the purpose of permitting WORLDCOM to locate and
\nconstruct regeneration facilities at such sites, or (B) if the parties
\ndesire to share regeneration facilities, and further assuming that the
\nparties are able to agree upon the specific location, specifications
\nand costs applicable thereto, QWEST and WORLDCOM shall enter into a
\nseparate Regeneration Sharing Agreement setting forth the terms and
\nconditions with respect thereto.<\/p>\n
3.9 Except for such portions of the Segments that are already so
\nconstructed, no aerial construction or installation of the Segments
\nshall be allowed, except for discrete short pieces of Segments for
\nwhich QWEST presents to WORLDCOM its proposed design for WORLDCOM’s
\nreview and approval, which approval shall not be unreasonably
\nwithheld.<\/p>\n
3.10 With the exception of those existing fibers on that portion of
\nSegment 3 between Santa Clara, California and Roseville, California
\n(which are Coming SNT-DS), all fiber included in the WORLDCOM Fibers
\nand all fibers incorporated in the WORLDCOM Portland\/Seattle System
\nshall be Coming SNT-LS non-zero dispersion-shifted or equivalent, and
\nshall meet or exceed the fiber specifications set forth in Exhibit E.
\nThe fibers subject to the Optional QWEST IRU shall be the equivalent
\nof Coming SMR-28. Wherever feasible, other than the Portland\/U.P.
\nFibers, all such fibers shall be contained in discrete buffer tubes
\nthat are not shared with any other third party.<\/p>\n
ARTICLE IV.<\/p>\n
ACCEPTANCE AND TESTING OF WORLDCOM FIBERS<\/p>\n
4.1 QWEST shall test all WORLDCOM Fibers in accordance with the
\nprocedures specified in Exhibit D (“Fiber Acceptance Testing”) to
\nverify that the WORLDCOM Fibers are installed and operating in
\naccordance with the specifications described in Exhibits D and E.
\nFiber Acceptance Testing shall progress span by span along each
\nSegment to be constructed hereunder as cable splicing progresses, so
\nthat test results may be reviewed in a timely manner. QWEST shall
\nprovide WORLDCOM reasonable advance notice of the date and time of
\neach Fiber Acceptance Testing (each of which shall take place during
\nnormal business hours) such that WORLDCOM shall have the right, but
\nnot the obligation, to have a person or persons present to observe
\nQWEST’s Fiber Acceptance Testing. QWEST shall promptly provide
\nWORLDCOM with a copy of the test results.<\/p>\n
4.2 In the event the results of the tests of the WORLDCOM Fibers
\nshow the WORLDCOM Fibers not to be operating within the parameters of
\nthe applicable specifications, WORLDCOM shall notify QWEST in writing
\nthat some or all portions of the WORLDCOM Fibers are unacceptable.
\nThereupon, QWEST shall expeditiously take such action as shall be
\nreasonably necessary, with respect to such portion of the WORLDCOM
\nFibers as do not operate within the parameters of the applicable
\nspecifications, to bring the operating standards of such portion of
\nthe WORLDCOM Fibers within such parameters.<\/p>\n
4.3 If and when QWEST notifies WORLDCOM that the test results of
\nthe Fiber Acceptance Testing are within the parameters of the
\nspecifications in Exhibits D and E with respect to an entire Segment,
\nWORLDCOM shall provide QWEST with a written notice accepting the
\nWORLDCOM Fibers. If WORLDCOM fails to notify QWEST of its acceptance
\nor rejection of the final test results with respect to the WORLDCOM
\nFibers comprising a Segment within ten (10) days after WORLDCOM’s
\nreceipt of notice of such test results, WORLDCOM shall be deemed to
\nhave accepted such Segment. The date of such notice of acceptance (or
\ndeemed acceptance) of all WORLDCOM Fibers for each Segment shall be
\nthe “Acceptance Date” for such Segment.<\/p>\n
ARTICLE V.<\/p>\n
WORLDCOM CONDUIT SYSTEM<\/p>\n
5.1 QWEST is hereby granted the option, exercisable until 5:00
\np.m. Central Standard Time on March 3, 1996, to elect to obtain from
\nWORLDCOM (i) an exclusive, Indefeasible Right of Use, for the purposes
\ndescribed herein, in an installed, empty innerduct fiber optic conduit
\nbetween Pevely, Missouri and Indianapolis, Indiana (the “QWEST
\nConduit”), and (ii) the associated non-exclusive Indefeasible Right of
\nUse, for the purposes described herein, in the tangible and intangible
\nproperty needed for the operation of such conduit, including, but not
\nlimited to, the associated WORLDCOM Conduit System rights-of-way,
\neasements and conduit, subject to underlying real property and
\ncontractual limitations and restrictions, but in any event excluding
\nany electronic or optronic equipment (collectively, the “WORLDCOM
\nAssociated Property”), for the Term defined in Section 8.1 and for the
\nconsideration described in Section 5.6 below. QWEST shall notify
\nWORLDCOM in writing by such time whether it has elected to exercise
\nsuch option. Failure to notify WORLDCOM by such time shall be deemed
\na waiver of all QWEST’s rights in such option. In the event QWEST
\nexercises this option, WORLDCOM shall install in the QWEST Conduit a
\nfiber optic cable to be supplied by QWEST. Such cable supplied by
\nQWEST shall be sufficient to meet the Cable Installation
\nspecifications set forth in Exhibit B. QWEST shall be responsible for
\nits own splicing and testing of such cable. QWEST shall reimburse
\nWORLDCOM for WORLDCOM’s actual cost of such installation and any
\nrelated inspection and supervision (not to exceed WORLDCOM’s actual
\ncontract cost for installation plus up to $<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile for supervision costs, provided that such supervision costs
\nshall not be duplicative of the maintenance fee payable with respect
\nto the QWEST Conduit under the Maintenance Agreement (to be entered
\ninto pursuant to Article XI). Such installation shall be made at such
\ntime as QWEST shall notify WORLDCOM in writing, but in any event not
\nlater than two (2) years after the date hereof.<\/p>\n
5.2 If QWEST exercises the option as set forth in Section 5.1,
\nWORLDCOM shall design, engineer, install and construct the WORLDCOM
\nConduit System and the QWEST Conduit, including preparation of
\nnecessary construction drawings, bills of materials, materials
\nspecifications and materials requisitions, and the performance of all
\nnecessary surveying, mapping and permitting, all in accordance with
\nthe specifications and drawings set forth in Exhibits B and H.<\/p>\n
5.3 WORLDCOM shall perform, in accordance with WORLDCOM’s standard
\ncommercial practices and as deemed necessary or appropriate in
\nWORLDCOM’s reasonable business judgment, all right-of-way, easement,
\nand other land acquisition activities necessary to install, test and
\ndeliver the QWEST Conduit in accordance with the provisions hereof,
\nfree from interference by, or infringement of the rights of, third
\nparties.<\/p>\n
5.4 WORLDCOM shall procure all materials to be incorporated in and
\nto become a permanent part of the WORLDCOM Conduit System.<\/p>\n
5.5 WORLDCOM shall perform all supervisory and inspection
\nservices, including, without limitation:<\/p>\n
(a) Performing construction inspection prior to completion of
\nthe WORLDCOM Conduit System to assure that all construction shall be
\nin accordance with the specifications, drawings, easement provisions,
\nprovisions of this Agreement, and applicable codes. QWEST shall have
\nthe right, but not the obligation, to inspect all right-of-way
\ndocuments pertinent to the WORLDCOM Conduit System (to the extent that
\nthe terms of such documents permit such disclosure) and to inspect the
\nconstruction and installation of the WORLDCOM Conduit System and the
\nsubsequent installation of the QWEST cable installed therein.<\/p>\n
(b) Preparing bimonthly construction progress reports.<\/p>\n
5.6 As full and complete payment for the grant of an IRU in the
\nQWEST Conduit, QWEST, if it exercises the option set forth in Section
\n5.1, shall pay to WORLDCOM an amount equal to $<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
multiplied by the total route miles of the QWEST Conduit as shown by
\nWORLDCOM’s drawings, which aggregate amount shall be payable according
\nto the following schedule: (i)<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% shall be due and payable ten (10) days after QWEST’s exercise of the
\noption;<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% shall be due and payable ten (10) days after WORLDCOM notifies QWEST
\nin writing that the QWEST Conduit is<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
% completed; (iii)<\/p>\n
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% shall be due and payable ten (10) days after WORLDCOM notifies QWEST
\nin writing that construction of the QWEST Conduit has been<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
% completed in accordance with the specifications set forth in Exhibit
\nB (which payment by QWEST shall constitute QWEST’s acceptance of the
\nQWEST Conduit as of such date (the “QWEST Conduit Acceptance Date”));
\nand (iv) a final payment of<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
% shall be due and payable ten (10) days after the delivery of final
\nAs-Builts for the QWEST Conduit. All payments to WORLDCOM set forth
\nin this Section 5.6 shall be made by wire transfer of immediately
\navailable funds to the account or accounts designated by QWEST.<\/p>\n
5.7 QWEST acknowledges and agrees that the QWEST Conduit may only
\nbe used as a conduit for fiber optic or other telecommunications
\ncable. WORLDCOM acknowledges and agrees that it has no right to use
\nthe QWEST Conduit during the Term hereof, and that WORLDCOM shall keep
\nthe QWEST Conduit free from any liens, rights or claims of any third
\nparty attributable to WORLDCOM that adversely affects or impairs
\nQWEST’s exclusive use of the QWEST Conduit hereunder.<\/p>\n
ARTICLE VI<\/p>\n
DOCUMENTATION<\/p>\n
6.1 Not later than one hundred eighty (180) days after the
\nAcceptance Date for each Segment, QWEST shall provide WORLDCOM with
\nthe following documentation with respect to such Segment:<\/p>\n
(a) As-built drawings in accordance with the requirements
\ndescribed in Exhibit K (“As-Builts”).<\/p>\n
(b) Technical specifications of the optical fiber cable and
\nassociated splices and other equipment placed in the Segment.<\/p>\n
6.2 Not later than one hundred eighty (180) days after the QWEST
\nConduit Acceptance Date, WORLDCOM shall provide QWEST with As-Built
\ndrawings in accordance with the requirements described in Exhibit K.<\/p>\n
ARTICLE VII<\/p>\n
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NEGOTIATION<\/p>\n
7.1 WORLDCOM and QWEST shall commence promptly hereafter, and
\nthereafter participate together in good faith negotiations with<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
Corporation, in order to remove with respect to QWEST the existing
\nexclusivity provisions contained in WORLDCOM’s existing right-of-way
\nagreement with<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
. This negotiation would include issues related to the consideration
\nto be received by WORLDCOM for relief of such exclusivity provisions
\n(the sufficiency of which shall be determined solely by WORLDCOM), the
\nterms and conditions of QWEST’s right to construct on such portions of
\nthe<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
right-of-way, as well as the operational limitations to be applied in
\nthe event of any construction by QWEST on<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
right-of-way subject to such exclusivity provisions. The parties
\nacknowledge that it is their objective to reach a definitive agreement
\nwith<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
within one hundred eighty (180) days after the date hereof and shall
\nuse their mutual best efforts to meet such goal; provided that if for
\nany reason no agreement has been reached within one year after the
\ndate hereof, the parties shall have no further obligation under this
\nSection 7.1. If such negotiations prove to be successful, the parties
\nagree to negotiate in good faith the terms and conditions on which
\nQWEST would construct a fiber optic system on the<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
right-of-way, the definitive agreement for which in any event shall
\nprovide that (i) QWEST shall be responsible for the cost of any and
\nall damage to any WORLDCOM property or facilities on<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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right-of-way as a result of QWEST’s activities thereon and (ii) QWEST
\nshall be responsible for the cost of all reasonable construction
\noversight and inspection undertaken by WORLDCOM with respect to
\nQWEST’s construction activities. If such negotiations are
\nunsuccessful, there shall be no effect on the IRUs granted hereunder.<\/p>\n
ARTICLE VIII.<\/p>\n
TERM<\/p>\n
8.1 The term of this Agreement shall begin on the date hereof and,
\nsubject to the provisions of Sections 8.2 and 8.3, terminate with
\nrespect to the QWEST System and the WORLDCOM Conduit System at the end
\nof the economically useful life of the WORLDCOM Fibers and the QWEST
\nConduit, respectively (the “Term”).<\/p>\n
8.2 In any event, unless the parties otherwise agree to the
\ncontrary in writing with respect to either, the end of the
\neconomically useful life of the WORLDCOM Fibers and the QWEST Conduit
\nshall not be earlier than<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
years, nor later than the date of the expiration or termination of
\nthe real property rights-of-way and\/or easements underlying the QWEST
\nSystem and the WORLDCOM Conduit System, respectively (subject to the
\nobligations of QWEST and WORLDCOM under Sections 12.1 and 12.3,
\nrespectively, to maintain such underlying real property rights for a
\nperiod of not less than<\/p>\n
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\nCONFIDENTIAL TREATMENT##<\/p>\n
years from the date hereof).<\/p>\n
8.3 In the event that WORLDCOM determines that any one or more of
\nthe Segments has reached the end of its economically useful life and
\ndesires to not retain the IRU with respect to any such Segment or
\nSegments, WORLDCOM shall have the right to abandon its IRU with
\nrespect to such Segment(s), in which event all rights to the use
\nthereof shall revert to QWEST without reimbursement of any fees or
\nother payments previously made with respect thereto, and from and
\nafter such time WORLDCOM shall have no further rights or obligations
\nhereunder with respect to such abandoned Segment(s). In the event
\nthat QWEST determines that the QWEST Conduit or any portion thereof
\nhas reached the end of its economically useful life and desires to no
\nlonger operate or maintain all or any portion of the QWEST Conduit,
\nQWEST shall have the right to abandon its IRU with respect thereto, in
\nwhich event all rights to the use thereof shall revert to WORLDCOM
\nwithout reimbursement of any fees or other payments previously made
\nwith respect thereto and, from and after such time, QWEST shall have
\nno further rights or obligations hereunder with respect to such
\nabandoned portion of the QWEST Conduit.<\/p>\n
8.4 It is understood and agreed by the parties that QWEST must and
\ndoes maintain legal title to the entire QWEST System subject to the
\nWORLDCOM IRU. Notwithstanding this, it is understood and agreed that
\nthe grant of the WORLDCOM IRU shall be treated for accounting and
\nfederal and all applicable state income tax purposes as the sale and
\npurchase of the WORLDCOM Fibers and the WEST Associated Property, and
\nthat on and after the Acceptance Date for each particular Segment,
\nWORLDCOM shall be treated as the owner of the WORLDCOM Fibers and the
\nQWEST Associated Property associated with such Segment for such
\npurposes. Similarly, WORLDCOM shall retain legal title to any and all
\nof the WORLDCOM Conduit System, subject to the IRU granted to QWEST in
\nthe QWEST Conduit hereunder. However, it is understood and agreed
\nthat the grant of the IRU in the QWEST Conduit and the WORLDCOM
\nAssociated Property shall be treated for accounting and federal and
\nall state income tax purposes as the sale and purchase of the QWEST
\nConduit, and that on and after the QWEST Conduit Acceptance Date,
\nQWEST shall be treated as the owner of the QWEST Conduit for such
\npurposes. The parties agree to file their respective income tax
\nreturns and other returns and reports for their respective Impositions
\non such basis and, except as otherwise required by law, not to take
\nany positions inconsistent therewith.<\/p>\n
ARTICLE IX.<\/p>\n
SYSTEM CONNECTION<\/p>\n
9.1 Subject to the provisions herein, QWEST shall be responsible
\nfor all costs to construct and pull the WORLDCOM Fibers to the
\nWORLDCOM POP at each of the end point and intermediate point locations
\ndesignated in Exhibit A, at which points QWEST shall hand off the
\nWORLDCOM Fibers to WORLDCOM and at which points WORLDCOM may access
\nthe WORLDCOM Fibers. It shall be the responsibility of WORLDCOM to
\n(i) obtain all location, occupancy and other necessary access rights,
\npermits and approvals to permit QWEST to construct and install the
\nCable from the manhole nearest each POP location to the POP, and (H)
\nprovide riser conduits to each POP. Where WORLDCOM has conduit
\navailable from the manhole nearest to the POP or another location
\nadjacent to the POP that would assist in connecting the WORLDCOM
\nFibers from the QWEST System right-of-way to a particular WORLDCOM POP
\nlocation, WORLDCOM agrees to make such conduit available for such
\npurpose at no charge to QWEST, including, without limitation, in the
\nspecific locations described in Exhibit A, and in all other
\ncircumstances QWEST shall be responsible for providing the conduit
\nfrom the manhole nearest to the POP to the bottom of the riser.
\nWORLDCOM further agrees that, if it has conduit, housed in steel pipe,
\nthat has not been committed or reserved for other use from another
\nlocation and that would assist in connecting the WORLDCOM Fibers from
\nthe QWEST System right-of-way to a particular POP location, it will,
\nsubject to existing permits, approvals and authorizations, grant to
\nQWEST an IRU in such conduit for such purpose at a price of $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per conduit foot. QWEST may install, maintain and route the WORLDCOM
\nFibers within QWEST facilities at its sole discretion. Unless the
\nparties otherwise expressly agree, in no event will WORLDCOM’s
\nequipment be located in QWEST facilities.<\/p>\n
9.2 WORLDCOM may, at its sole option and at any time during the
\nTerm, connect its telecommunications system with the WORLDCOM Fibers
\nat WORLDCOM’s sole cost, at any point along the Segments delivered
\nhereunder which is specifically identified in Exhibit A or which
\notherwise is approved by QWEST in writing, which approval shall not be
\nunreasonably withheld (each a “Connecting Point”); provided, however,
\nany such connection will be performed by QWEST, in accordance with
\nQWEST’s applicable specifications and operating procedures, and shall
\nbe subject to applicable contractual, underlying real property and
\nother third-party limitations and restrictions, and WORLDCOM shall pay
\nQWEST’s Costs for each such connection within thirty (30) days of the
\ndate of WORLDCOM’s receipt of QWEST’s invoice therefor. In order to
\nschedule a connection of this type, WORLDCOM shall request and
\ncoordinate such work not less than thirty (30) days in advance of the
\ndate the connection is requested to be completed. Such work will be
\nrestricted to a Planned System Work Period (“‘PSWP”), as defined in
\nSection 36. 1, unless otherwise agreed to in writing for specific
\nprojects. Subject to QWEST’s underlying real property rights and
\napplicable restrictions, WORLDCOM shall also be provided reasonable
\naccess by QWEST to any Connecting Point during the term of this
\nAgreement. WORLDCOM shall have no limitations on the types of
\nelectronics or technologies employed to utilize the WORLDCOM Fibers,
\nsubject to mutually agreeable safety procedures and so long as such
\nelectronics or technologies do not interfere with the use of or
\npresent a risk of damage to any portion of the QWEST System.<\/p>\n
ARTICLE X.<\/p>\n
OPERATIONS<\/p>\n
10.1 Each party shall have full and complete control and
\nresponsibility for determining any network and service configuration
\nor designs, routing configurations, regrooming, rearrangement or
\nconsolidation of channels or circuits and all related functions with
\nregard to the use of that party’s fiber.<\/p>\n
10.2 Neither party hereto is supplying or is obligated to supply to
\nthe other party any optronics, or electronics or optical or electrical
\nequipment or other facilities, including without limitation,
\ngenerators, batteries, air conditioners, fire protection and
\nmonitoring and testing equipment, nor is either party responsible for
\nperforming any work other than as specified in this Agreement.<\/p>\n
10.3 At any time during the term of this Agreement, by not less
\nthan 120 days’ written notice from QWEST to WORLDCOM, QWEST may, with
\nWORLDCOM’s prior written approval (which approval shall not be
\nunreasonably delayed or withheld) substitute for the WORLDCOM Fibers
\non the QWEST System, or any Segment or Segments comprising a portion
\nof said QWEST System, an equal number of alternative fibers along an
\nalternative route, as determined by QWEST in its sole discretion;
\nprovided that in any such event, such substitution (i) shall be
\nwithout unreasonable interruption of service and use by WORLDCOM, (H)
\nshall be at the sole cost of QWEST, including, without limitation, all
\ndisconnect and reconnect costs, fees and expenses, (iii) shall be
\nconstructed and tested in accordance with the specifications and
\ndrawings set forth in Exhibits B, C and D, and incorporate fiber
\nmeeting the specifications set forth in Exhibit E, and (iv) shall not
\nresult in an adverse change to the operations, performance, connection
\npoints with the network of WORLDCOM, or endpoints of any Segment
\nincluded in the QWEST System.<\/p>\n
ARTICLE XI<\/p>\n
MAINTENANCE AND REPAIR OF THE QWEST SYSTEM AND THE QWEST CONDUIT<\/p>\n
11.1 Upon the execution of this Agreement, WORLDCOM and QWEST shall
\nenter into and execute the Maintenance Agreement in the form of
\nExhibit I hereto, providing for the maintenance of (i) the WORLDCOM
\nFibers by QWEST and WORLDCOM, as set forth therein, and (ii) if QWEST
\nexercises the option as set forth in Section 5.1, the QWEST Conduit,
\nincluding the cable installed therein, by WORLDCOM.<\/p>\n
11.2 Maintenance of and QWEST’s access to, the QWEST Conduit, and
\nmaintenance of, and WORLDCOM’s access to, the QWEST System, shall be
\non the terms and subject to the conditions set forth in the
\nMaintenance Agreement to be entered into by the parties pursuant to
\nSection 11.1; provided that if the Maintenance Agreement expires or
\nterminates prior to the end of the Term with respect to the QWEST
\nConduit or the QWEST System, those provisions of the Maintenance
\nAgreement relating to access by QWEST to the QWEST Conduit, or by
\nWORLDCOM to the QWEST System, for purposes of maintenance thereof
\nshall survive the termination or expiration thereof and continue to
\napply for the remaining Term hereof.<\/p>\n
ARTICLE XII<\/p>\n
PERMITS: PHYSICAL PLANT AND REQUIRED RIGHTS<\/p>\n
12.1 Except as provided in Section 9.1, QWEST shall obtain (and
\ncause to remain effective for a period of not less than<\/p>\n
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years from the date hereof) all rights, licenses, authorizations,
\nrights-of-way and other agreements necessary for the use of conduit,
\ncable or other physical plant facilities, as well as any other such
\nrights, licenses, authorizations (including any necessary state,
\ntribal or federal authorizations such as environmental permits),
\nrights-of-way and other agreements necessary for the installation and
\nuse of the WORLDCOM Fibers hereunder (all of which are referred to as
\n“QWEST Required Rights”); provided that if the WORLDCOM Fibers are the
\nonly fibers to be located in the Cable from the point where the Cable
\nleaves the QWEST System right-of-way to the POP, and WORLDCOM
\npreviously has obtained any of the necessary rights, licenses,
\nauthorizations, rights-of-way and other agreements with respect
\nthereto, WORLDCOM agrees, to the extent permitted by the terms
\nthereof, to assign or otherwise make such rights available to QWEST
\nupon reimbursement by QWEST of WORLDCOM’s costs incurred in obtaining
\nsuch rights. To the extent permitted by the terms of such documents,
\nWORLDCOM shall have the right to review all documents reflecting the
\nQWEST Required Rights.<\/p>\n
12.2 If, for any reason, QWEST determines in its reasonable
\nbusiness judgment, or is required by a third party with legal
\nauthority to so require, to relocate any of the facilities used or
\nrequired in providing the WORLDCOM IRU, QWEST shall have the right to
\nproceed with such relocation, including but not limited to the right
\nto determine the extent of, the timing of, and methods to be used for
\nsuch relocation; provided that any such relocation (i) shall be
\nconstructed and tested in accordance with the specifications and
\ndrawings set forth in Exhibits B, C and D and incorporate fiber
\nmeeting the specifications set forth in Exhibit E, and (ii) if such
\nrelocation is at the determination of QWEST, shall not result in an
\nadverse change to the operations, performance, connection points with
\nthe network of WORLDCOM, or end points of any Segment included in the
\nQWEST System. QWEST shall give WORLDCOM sixty (60) days’ prior notice
\nof any such relocation, if possible. QWEST shall relocate the
\naffected portion of the QWEST System and, so long as such relocation
\nis not necessitated by a breach of QWEST’s obligations under this
\nAgreement, including, without limitation, under Section 12.1, and
\nexcept as otherwise expressly provided in this Section 12.2, WORLDCOM
\nshall reimburse QWEST for its proportionate share of (i) all Costs of
\nfiber acquisition, splicing and testing, prorated based on the total
\nfiber count in the affected fiber cable as so relocated, and (ii) all
\nother Costs associated with the relocation of the Cable, prorated
\nbased on the total number of owners and holders of an IRU or
\nequivalent interest in the affected Segment as so relocated. QWEST
\nshall deliver to WORLDCOM updated As-Builts with respect to a
\nrelocated Segment not later than one hundred eighty (180) days
\nfollowing the completion of such relocation.<\/p>\n
12.3 WORLDCOM shall obtain (and cause to remain effective for a
\nperiod of not less than<\/p>\n
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years from the date hereof) all rights, licenses, authorizations,
\nrights-of-way and other agreements necessary for the use of poles,
\nconduit, cable, wire or other physical plant facilities, as well as
\nany other such rights, licenses, authorizations (including any
\nnecessary state, tribal or federal authorizations such as
\nenvironmental permits), rights-of-way and other agreements necessary
\nfor the installation and use of the QWEST Conduit hereunder (all of
\nwhich are referred to as “WORLDCOM Required Rights”). To the extent
\npermitted by the terms of such documents, QWEST shall have the right
\nto review all documents reflecting the WORLDCOM Required Rights.<\/p>\n
12.4 If for any reason, WORLDCOM determines in its reasonable
\nbusiness judgment, or is required by a third party with legal
\nauthority to so require, to relocate any of the facilities used or
\nrequired in providing the QWEST Conduit or any portion thereof,
\nWORLDCOM shall have the right to proceed with such relocation,
\nincluding but not limited to the right to determine the extent of, the
\ntiming of, and methods to be used for such relocation; provided that
\nany such relocation (i) shall be constructed in accordance with the
\nspecifications and drawings set forth in Exhibits B and H, and (ii) if
\nsuch relocation is at the determination of WORLDCOM, shall (A)
\nincorporate fiber meeting the specifications set forth in Exhibit E
\n(at WORLDCOM’s sole cost and expense, including splicing and testing
\nin accordance with the specifications set forth in Exhibit D) and (B)
\nnot result in an adverse change to the operations, performance,
\nconnection points with the QWEST System network, or end points of the
\nQWEST Conduit. WORLDCOM shall give QWEST sixty (60) days’ prior
\nnotice of any such relocation, if possible. WORLDCOM shall relocate
\nthe affected portion of the QWEST Conduit and, so long as such
\nrelocation is not necessitated by a breach of WORLDCOM’s obligations
\nunder this Agreement, including, without limitation, under Section
\n12.3 and, except as otherwise expressly provided in this Section 12.4,
\nQWEST shall reimburse WORLDCOM for its proportionate share (based on
\nthe ratio that the QWEST Conduit bears to the total number of conduits
\nin use in the WORLDCOM Conduit System) of the Costs of the relocation
\nof such conduit, but not including any costs attributable to the
\nreplacement of cable or fibers within the other conduits in the
\naffected portion of the WORLDCOM Conduit System. WORLDCOM shall
\ndeliver to QWEST updated As-Builts with respect to the QVT-ST Conduit
\nnot later than one hundred eighty (180) days following the completion
\nof any such relocation.<\/p>\n
ARTICLE XIII.<\/p>\n
USE OF QWEST SYSTEM<\/p>\n
13.1 WORLDCOM warrants that its use of the QWEST System shall
\ncomply with all applicable government codes, ordinances, laws, rules,
\nregulations and\/or restrictions.<\/p>\n
13.2 In addition to the other rights provided hereunder, but
\nsubject to the provisions of Article IX, the WORLDCOM IRU shall
\ninclude the right to install additional equipment, or replace existing
\nequipment, at any point where WORLDCOM is permitted to access the
\nWORLDCOM Fibers under the provisions of this Agreement.<\/p>\n
13.3 Subject to the provisions of Article XXVII, WORLDCOM may use
\nits IRU for any lawful purpose. QWEST agrees and acknowledges that it
\nhas no right to use the WORLDCOM Fibers during the Term hereof, and
\nthat QWEST shall keep the WORLDCOM Fibers free from any liens, rights
\nor claims of any third party attributable to QWEST that adversely
\naffects or impairs WORLDCOM’s exclusive use of the WORLDCOM Fibers
\nhereunder.<\/p>\n
13.4 WORLDCOM and QWEST shall promptly notify each other of any
\nmatters pertaining to any damage or impending damage to or loss of the
\nQWEST System WORLDCOM Conduit System, respectively, that are known to
\nsuch party.<\/p>\n
13.5 Each party shall take all reasonable precautions against, and
\nshall assume liability, subject to the terms herein, for, any damage
\ncaused by such party to the other’s fibers within the Cable. WORLDCOM
\nshall not use the WORLDCOM Fibers, and QWEST shall not use the QWEST
\nConduit, in a way which physically interferes in any way with or
\nadversely affects the use of the fibers or cable of any other person
\nusing the QWEST System or the WORLDCOM Conduit System, respectively.<\/p>\n
13.6 WORLDCOM and QWEST each agree to cooperate with and support
\nthe other in complying with any requirements applicable to their
\nrespective rights and obligations hereunder by any governmental or
\nregulatory agency or authority.<\/p>\n
13.7 Except as otherwise explicitly set forth in this Agreement, in
\nthe Maintenance Agreement or in any Regeneration Sharing Agreement,
\nneither party shall charge the other party any maintenance or right-of-
\nway charges.<\/p>\n
ARTICLE XIV<\/p>\n
INDEMNIFICATION<\/p>\n
14.1 Subject to the provisions of Article XV, QWEST hereby releases
\nand agrees to indemnify, defend, protect and hold harmless WORLDCOM,
\nits employees, officers, directors, agents, shareholders and
\naffiliates, from and against, and assumes liability for:<\/p>\n
(a) Any injury, loss or damage to any person, tangible
\nproperty or facilities of any person or entity (including reasonable
\nattorneys’ fees and costs) to the extent arising out of or resulting
\nfrom the acts or omissions, negligent or otherwise, of QWEST, its
\nofficers, employees, servants, affiliates, agents, contractors,
\nlicensees, invitees or vendors in connection with its performance
\nunder this Agreement;<\/p>\n
(b) Any claims, liabilities or damages arising out of any
\nviolation by QWEST of regulations, rules, statutes or court orders of
\nany local, state or federal governmental agency, court or body in
\nconnection with its performance under this Agreement; and<\/p>\n
(c) Any claims, liabilities or damages arising out of any
\ninterference with or infringement of the rights of any third party as
\na result of WORLDCOM’s use of the WORLDCOM IRU and the WORLDCOM Fibers
\nin accordance with the provisions of this Agreement.<\/p>\n
14.2 Subject to the provisions of Article XV, WORLDCOM hereby
\nreleases and agrees to indemnify, defend, protect and hold harmless
\nQWEST, its employees, officers, directors, agents, shareholders and
\naffiliates, from and against, and assumes liability for:<\/p>\n
(a) Any injury, loss or damage to any person, tangible
\nproperty or facilities of any person or entity (including reasonable
\nattorneys’ fees and costs) to the extent arising out of or resulting
\nfrom the acts or omissions, negligent or otherwise, of WORLDCOM, its
\nofficers, employees, servants, affiliates, agents, contractors,
\nlicensees, invitees or vendors in connection with its performance
\nunder this Agreement;<\/p>\n
(b) Any claims, liabilities or damages arising out of any
\nviolation by WORLDCOM or regulations, rules, statutes or court orders
\nof any local, state or federal governmental agency, court or body in
\nconnection with its performance under this Agreement; and<\/p>\n
(c) Any claims, liabilities or damages arising out of any
\ninterference with or infringement of the rights of any third party as
\na result of QWEST’s use of the QWEST Conduit in accordance with the
\nprovisions of this Agreement.<\/p>\n
14.3 The parties hereby expressly recognize and agree that each
\nparty’s said obligation to indemnify, defend, protect and save the
\nother harmless is not a material obligation to the continuing
\nperformance of the-parties’ other obligations, if any, hereunder. In
\nthe event that a party shall fail for any reason to so indemnify,
\ndefend, protect and save the other harmless, the injured party hereby
\nexpressly recognizes that its sole remedy in such event shall be the
\nright to bring an arbitration proceeding pursuant to the terms of this
\nAgreement against the other party for its damages as a result of the
\nother party’s said failure to indemnify, defend, protect and save
\nharmless. These obligations shall survive the expiration or
\ntermination of this Agreement.<\/p>\n
14.4 Nothing contained herein shall operate as a limitation on the
\nright of either party hereto to bring an action for damages against
\nany third party, including indirect, special or consequential damages,
\nbased on any acts or omissions of such third party as such acts or
\nomissions may affect the construction, operation or use of the
\nWORLDCOM Fibers or the QWEST System, or the WORLDCOM Conduit System or
\nthe QWEST Conduit, as the case may be; provided, however, that each
\nparty hereto shall assign such rights or claims, execute such
\ndocuments and do whatever else may be reasonably necessary to enable
\nthe other party to pursue any such action against such third party.<\/p>\n
ARTICLE XV.<\/p>\n
LIMITATION OF LIABILITY<\/p>\n
15.1 Notwithstanding any provision of this Agreement to the
\ncontrary, in no event shall either party be liable to the other party
\nfor any special, incidental, indirect, punitive or consequential
\ndamages, whether foreseeable or not, arising out of, or in connection
\nwith, transmission interruptions or problems, or any interruption or
\ndegradation of service, including, but not limited to, damage or loss
\nof property or equipment, loss of profits or revenue, cost of capital,
\ncost of replacement services, or claims of customers, whether
\noccasioned by any construction, reconstruction, relocation, repair or
\nmaintenance performed by, or failed to be performed by, the other
\nparty or any other cause whatsoever, including, without limitation,
\nbreach of contract, breach of warranty, negligence, or strict
\nliability all claims for which damages are hereby specifically waived.<\/p>\n
ARTICLE XVI.<\/p>\n
INSURANCE<\/p>\n
16.1 During the term of this Agreement, each party shall obtain and
\nmaintain, and shall require any of its permitted subcontractors to
\nobtain and maintain, the following insurance, naming the other party
\nas an additional insured:<\/p>\n
(a) Not less than $5,000,000 combined single limit liability
\ninsurance, on an occurrence basis, for personal injury and property
\ndamage, including, without limitation, injury or damage arising from
\nthe operation of vehicles or equipment and liability for completed
\noperations;<\/p>\n
(b) Worker’s Compensation Insurance in amounts required by
\napplicable law and Employer’s Liability insurance with a limit of at
\nleast One Million Dollars ($1,000,000.00) per occurrence;<\/p>\n
(c) Automobile liability insurance covering death or injury
\nto any person or persons, or damage to property arising from the
\noperation of vehicles or equipment, with limits of not less than One
\nMillion Dollars ($1,000,000.00) per occurrence;<\/p>\n
(d) “All Risk” property insurance in an amount equal to the
\nreplacement cost of the property of such party subject to the IRUs
\ngranted hereunder; and <\/p>\n
(e) Any other insurance coverages required pursuant to
\nQWEST’s right-of-way agreements with railroads or other third parties,<\/p>\n
16.2 Both parties expressly acknowledge that a party shall be
\ndeemed to be in compliance with the provisions of this Article if it
\nmaintains an approved self-insurance program providing for a retention
\nof up to One Million Dollars ($1,000,000.00). If either party
\nprovides any of the foregoing coverages on a claims made basis, such
\npolicy or policies shall be for at least a three (3) year extended
\nreporting or discovery period.<\/p>\n
16.3 Unless otherwise agreed, WORLDCOM’s insurance policies shall
\nbe obtained and maintained with companies rated A or better by Best’s
\nKey Rating Guide and QWEST shall be expressly named as an additional
\ninsured on all of WORLDCOM’s insurance policies providing the required
\ncoverage, or any portion thereof, described in this Article, and
\nWORLDCOM shall provide QWEST with an insurance certificate confirming
\ncompliance with this requirement for each policy providing such
\nrequired coverage. The insurance certificate shall indicate that the
\nadditional insured party shall be notified not less than thirty (30)
\ndays prior to any cancellation or material change in coverage.<\/p>\n
16.4 Unless otherwise agreed, QWEST’s insurance policies shall be
\nobtained and maintained with companies rated A or better by Best’s Key
\nRating Guide and WORLDCOM shall be expressly named as an additional
\ninsured on all of QWEST’s insurance policies providing the required
\ncoverage, or any portion thereof, described in this Article, and QWEST
\nshall provide WORLDCOM with an insurance certificate confirming
\ncompliance with this requirement for each policy providing such
\nrequired coverage. The insurance certificate shall indicate that the
\nadditional insured party shall be notified not less than thirty (30)
\ndays prior to any cancellation or material change in coverage.<\/p>\n
16.5 In the event either party fails to obtain the required
\ninsurance or to obtain the required certificates from any contractor
\nand a claim is made or suffered, such party shall indemnify and hold
\nharmless the other party from any and all claims for which the
\nrequired insurance would have provided coverage. Further, in the
\nevent of any such failure which continues after seven (7) days’
\nwritten notice thereof by the other party, such other partly, may, but
\nshall not be obligated to, obtain such insurance and will have the
\nright to be reimbursed for the cost of such insurance by the party
\nfailing to obtain such insurance.<\/p>\n
16.6 In the event coverage is denied or reimbursement of a properly
\npresented claim is disputed by the carrier for insurance provided
\nabove, the party carrying such coverage shall make good faith efforts
\nto pursue such claim with its carrier.<\/p>\n
16.7 WORLDCOM and QWEST shall each obtain from the insurance
\ncompanies providing the coverages required by this Agreement, the
\npermission of such insurers to allow such party to waive all rights of
\nsubrogation and such party does hereby waive all rights of said
\ninsurance companies to subrogation against the other party, its parent
\ncorporation, affiliates, subsidiaries, assignees, officers, directors
\nand employees or any other party entitled to indemnity under this
\nAgreement.<\/p>\n
ARTICLE XVII.<\/p>\n
TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS<\/p>\n
17.1 The parties acknowledge and agree that it is their mutual
\nobjective and intent to (i) minimize, to the extent feasible, the
\naggregate Impositions payable with respect to the QWEST System and the
\nWORLDCOM Conduit System and (ii) share such Impositions according to
\ntheir respective interests in each of the QWEST System and the
\nWORLDCOM Conduit System, and that they will cooperate with each other
\nand coordinate their mutual efforts to achieve such objectives in
\naccordance with the provisions of this Article XVII.<\/p>\n
17.2 QWEST shall be responsible for and shall timely pay any and
\nall “Impositions” (as defined in Section 3 6. 1 ) with respect to the
\nconstruction or operation of each Segment of the QWEST System which
\nImpositions are (i) imposed or assessed prior to the Acceptance Date
\nwith respect to such Segment or (ii) imposed or assessed (regardless
\nof the time) with respect to such Segment in exchange for the approval
\nof construction in or the original agreement which resulted in the
\ngranting of an interest in public property or a public right-of-way
\nrelating to the QWEST System. WORLDCOM shall be responsible for and
\nshall timely pay any and all Impositions imposed with respect to the
\nconstruction or operation of the WORLDCOM Conduit System which
\nImpositions are (iii) imposed or assessed prior to the QWEST Conduit
\nAcceptance Date or (iv) imposed or assessed (regardless of the time)
\nin exchange for the approval of construction in or the original
\nagreement which resulted in the granting of an interest in public
\nproperty or public right-of-way relating to the QWEST Conduit.
\nNotwithstanding the foregoing obligations, QWEST and WORLDCOM,
\nrespectively, shall have the right to challenge any such Impositions
\nso long as the challenge of such Impositions does not adversely affect
\nthe title, rights or property to be delivered pursuant hereto.<\/p>\n
17.3 Except as to Impositions described in paragraph (ii) of
\nSection 17.2, following the Acceptance Date with respect to each
\nSegment delivered hereunder, QWEST shall timely pay any and all
\nImpositions imposed upon or with respect to such Segment to the extent
\nsuch Impositions may not feasibly be separately assessed or imposed
\nupon or against the respective ownership interests of QWEST and
\nWORLDCOM in the QWEST System; provided that, upon receipt of a notice
\nof any such Imposition, QWEST shall promptly notify WORLDCOM of such
\nImposition and following payment of such Imposition by QWEST, WORLDCOM
\nshall promptly reimburse QWEST for its proportionate share of such
\nImpositions, which share shall be determined (i) to the extent
\npossible, based upon the manner and methodology used by the particular
\nauthority imposing such Impositions (e.g., on the cost of the relative
\nproperty interests, historic or projected revenue derived therefrom,
\nor any combination thereof) or (ii) if the same cannot be so
\ndetermined, based on the relative number of WORLDCOM Fibers in the
\naffected Segment compared to the total number of fibers in such
\nSegment during the relevant tax period. Any reimbursement made under
\nthis Section 17.3 shall be in an amount that, after deduction of all
\nImpositions required to be paid by QWEST in respect of the receipt or
\naccrual of such reimbursement and after consideration of any deduction
\nto which QWEST may be entitled with respect to the payment or accrual
\nof the Impositions which have been reimbursed, shall be equal to the
\namount otherwise required to be paid by QWEST hereunder.<\/p>\n
17.4 Except as to Impositions described in paragraph (iv) of
\nSection 17.2, following QWEST’s acceptance of the QWEST Conduit
\ndelivered hereunder, WORLDCOM shall timely pay any and all Impositions
\nimposed upon or with respect to the QWEST Conduit to the extent such
\nImpositions may not feasibly be separately assessed or imposed upon or
\nagainst the respective ownership interests of WORLDCOM and QWEST in
\nthe QWEST Conduit; provided that upon receipt of a notice of any such
\nImposition, WORLDCOM shall promptly notify QWEST of such Imposition
\nand following payment of such Imposition by WORLDCOM, QWEST shall
\npromptly reimburse WORLDCOM for its proportionate share of such
\nImpositions, which share shall be determined (i) to the extent
\npossible, based upon the manner and basis upon which the particular
\nauthority imposed such Impositions (e.g., based on the cost of
\nrelative property interests, historic or projected revenue derived
\ntherefrom, or any combination thereof) or (ii) if the same cannot be
\nso determined, based on the ratio that the QWEST Conduit bears to the
\ntotal number of conduits in use in the WORLDCOM Conduit System during
\nthe relevant tax period. Any reimbursement made under this Section
\n17.4 shall be in an amount that, after deduction of all Impositions
\nrequired to be paid by WORLDCOM in respect of the receipt or accrual
\nof such reimbursement and after consideration of any deduction to
\nwhich WORLDCOM may be entitled with respect to the payment or accrual
\nof the Impositions which have been reimbursed, shall be equal to the
\namount otherwise required to be paid by WORLDCOM hereunder.<\/p>\n
17.5 Notwithstanding any provision herein to the contrary, QWEST
\nshall have the right to, and, subject to the following provisos, at
\nWORLDCOM’s request QWEST shall, contest any Imposition described in
\nSection 17.3, above, (including by non-payment of such Imposition);
\nprovided that notwithstanding any such request by WORLDCOM (i) if the
\naggregate amount of any such Imposition imposed by a single public
\nauthority for any single tax year does not exceed $30,000.00, then
\nQWEST shall not have the obligation to protest such Imposition
\n(although it may do so in its own discretion), and (ii) if QWEST
\ndetermines, in its sole discretion, not to contest any such
\nImpositions other than those described in the foregoing clause (i),
\nQWEST shall be solely responsible for the payment thereof. The out-
\nof-pocket costs and expenses (including reasonable attorneys’ fees)
\nincurred by QWEST in any such contest shall be shared by QWEST and
\nWORLDCOM in the same proportion as to which the parties would have
\nshared in such Impositions, as they were originally assessed. Any
\nrefunds or credits resulting from a contest brought pursuant to this
\nSection 17.5 shall be divided between QWEST and WORLDCOM in the same
\nproportion as to which such refunded or credited Impositions were
\nborne by QWEST and WORLDCOM. In any such event, QWEST shall provide
\ntimely notice of such challenge to WORLDCOM and QWEST shall have
\ndetermined, in good faith, that such contest and\/or nonpayment does
\nnot adversely affect the title, property or rights of WORLDCOM to the
\nWORLDCOM Fibers.<\/p>\n
17.6 Notwithstanding any provision herein to the contrary, WORLDCOM
\nshall have the right to, and, subject to the following provisos, at
\nQWEST’s request WORLDCOM shall, contest any Imposition described in
\nSection 17.4, above, (including by non-payment of such Imposition);
\nprovided that, notwithstanding any such request by QWEST (i) if the
\naggregate amount of any such Imposition imposed by a single public
\nauthority for any single tax year does not exceed $30,000.00, then
\nWORLDCOM shall not have the obligation to protest such Imposition
\n(although it may do so in its own discretion), and (ii) if WORLDCOM
\ndetermines, in its sole discretion, not to contest any such
\nImpositions other than those described in the foregoing clause (i),
\nWORLDCOM shall be solely responsible for the payment thereof. The
\nout-of-pocket costs and expenses (including reasonable attorneys’
\nfees) incurred by WORLDCOM in any such contest shall be shared by
\nWORLDCOM and QWEST in the same proportion as to which the parties
\nwould have shared in such Impositions, as they were originally
\nassessed. Any refunds or credits resulting from a contest brought
\npursuant to this Section 17.6 shall be divided between WORLDCOM and
\nQWEST in the same proportion as to which such refunded or credited
\nImpositions were borne by WORLDCOM and QWEST. WORLDCOM shall provide
\ntimely notice of such challenge to QWEST and WORLDCOM shall have
\ndetermined, in good faith, that such contest and\/or non-payment does
\nnot adversely affect the title, property or rights of QWEST to the
\nQWEST Conduit.<\/p>\n
17.7 Except as to Impositions described in paragraphs (ii) and (iv)
\nof Section 17.2 following the Acceptance Date with respect to each
\nSegment delivered hereunder on the one hand, and following the
\nacceptance by QWEST of the QWEST Conduit on the other hand, QWEST and
\nWORLDCOM, respectively, shall be separately responsible for any and
\nall Impositions (i) expressly or implicitly imposed upon, based upon,
\nor otherwise measured by the gross receipts, gross income, net
\nreceipts or net income received by or accrued to such party due to its
\nrespective ownership or use of the QWEST System, the WORLDCOM Fibers,
\nthe WORLDCOM Conduit System, or the QWEST Conduit or (ii) which have
\nbeen separately assessed or imposed upon the respective ownership
\ninterest of such party in the QWEST System, the WORLDCOM Fibers, the
\nWORLDCOM Conduit System, or the QWEST Conduit. If the WORLDCOM Fibers
\nare the only fibers to be located in the Cable from the point where
\nthe Cable leaves the QWEST System right-of-way to the POP, WORLDCOM
\nshall be solely responsible for any and all Impositions imposed on or
\nwith respect to such portion of any Segment.<\/p>\n
17.8 Notwithstanding any provision herein to the contrary, WORLDCOM
\nshall have the right to protest by appropriate proceedings any
\nImposition described in Section 17.7, above. In such event, WORLDCOM
\nshall indemnify and hold QWEST harmless from any expense, legal action
\nor cost, including reasonable attorneys’ fees, resulting from
\nWORLDCOM’s exercise of its rights hereunder. In the event of any
\nrefund, rebate, reduction or abatement to WORLDCOM of any such
\nImposition imposed upon and\/or paid by WORLDCOM, WORLDCOM shall be
\nentitled to receive the entire benefit of such refund, rebate,
\nreduction or abatement attributable to WORLDCOM’s use of the QWEST
\nSystem. In the event WORLDCOM has exhausted all its rights of appeal
\nin protesting any Imposition and has failed to obtain the relief
\nsought in such proceedings or appeals (“Finally Determined Taxes and
\nFees”), WORLDCOM and QWEST may jointly agree, at a cost to be shared
\nproportionately based on respective fiber counts, or either WORLDCOM
\nor QWEST may at its sole option and cost, agree to relocate a portion
\nof the fiber optic system so as to bypass the jurisdiction which had
\nimposed or assessed such Finally Determined Taxes and Fees. If
\nWORLDCOM and QWEST, or either of them, do not determine to relocate
\nthe fiber optic system, WORLDCOM shall have the right to terminate its
\nuse of the WORLDCOM Fibers in any Segment. Such termination shall be
\neffective on the date specified by WORLDCOM in a notice of
\ntermination, which date shall be at least ninety (90) days after the
\nnotice. Upon such termination, WORLDCOM’s IRU in the affected Segment
\nshall immediately terminate, and the WORLDCOM Fiber in the affected
\nSegment shall revert to QWEST without reimbursement of any IRU fees or
\nother payments previously made with respect thereto.<\/p>\n
17.9 Notwithstanding any provision herein to the contrary, QWEST
\nshall have the right to protest by appropriate proceedings any
\nImposition described in Section 17.7, above. In such event, QWEST
\nshall indemnify and hold WORLDCOM harmless from any expense, legal
\naction or cost, including reasonable attorneys’ fees, resulting from
\nQWEST’s exercise of its rights hereunder. In the event of any refund,
\nrebate, reduction or abatement to QWEST of any such Imposition imposed
\nupon and\/or paid by QWEST, QWEST shall be entitled to receive the
\nentire benefit of such refund, rebate, reduction or abatement
\nattributable to QWEST’s use of the WORLDCOM Conduit System. In the
\nevent QWEST has exhausted all its rights of appeal in protesting any
\nImposition and has failed to obtain the relief sought in such
\nproceedings or appeals (“Finally Determined Taxes and Fees”), WORLDCOM
\nand QWEST may jointly agree, at a cost to be shared proportionately
\nbased on respective fiber counts, or either WORLDCOM or QWEST may at
\nits sole option and cost, agree to relocate a portion of the fiber
\noptic system so as to bypass the jurisdiction which had imposed or
\nassessed such Finally Determined Taxes and Fees. If WORLDCOM and
\nQWEST, or either of them, do not determine to relocate the fiber optic
\nsystem, QWEST shall have the right to terminate its use of the QWEST
\nConduit in any Segment. Such termination shall be effective on the
\ndate specified by QWEST in a notice of termination, which date shall
\nbe at least ninety (90) days after the notice. Upon such termination,
\nQWEST’s IRU in the affected Segment shall immediately terminate, and
\nthe QWEST Conduit in the affected Segment shall revert to WORLDCOM
\nwithout reimbursement of any fees or other payments previously paid.<\/p>\n
17.10 Notwithstanding the provisions of Section 17.8, with
\nrespect to any Impositions relating to the Segments of the QWEST
\nSystem which are imposed upon both QWEST and WORLDCOM (or both of
\ntheir respective interests therein), QWEST, at its option and at its
\nown expense, shall have the right to direct and manage any such
\ncontest; subject, however, to reasonable and appropriate consultation
\nwith WORLDCOM which hereby agrees to cooperate with QWEST in any such
\ncontest. Notwithstanding the provisions of Section 17.9, with respect
\nto any Impositions relating to the WORLDCOM Conduit which are imposed
\nupon both WORLDCOM and QWEST (or both of their respective interests
\ntherein), WORLDCOM, at its option and at its own expense, shall have
\nthe right to direct and manage any such contest; subject, however, to
\nreasonable and appropriate consultation with QWEST which hereby agrees
\nto cooperate with WORLDCOM in any such contest. ‘Me individual rights
\nof QWEST and WORLDCOM to contest any Imposition pursuant to this
\nSection 17.10 shall be contingent upon reasonable and appropriate
\nassurances that any such contest will not adversely affect the title,
\nproperty or right of the other party in the QWEST System or WORLDCOM
\nConduit System.<\/p>\n
17.11 QWEST and WORLDCOM agree to cooperate fully in the
\npreparation of any returns or reports relating to the Impositions.
\nQWEST and WORLDCOM further acknowledge and agree that the provisions
\nof this Article XVII are intended to allocate the Impositions expected
\nto be assessed against or imposed upon the parties with respect to the
\nQWEST System and the WORLDCOM Conduit System based upon the procedures
\nand methods of computation by which Impositions generally have been
\nassessed and imposed to date, and that material changes in the
\nprocedures and methods of computation by which such assessments are
\nassessed and imposed could significantly alter the fundamental
\neconomic assumptions underlying the transactions hereunder to the
\nparties. Accordingly, the parties agree that, if in the future the
\nprocedures or methods of computation by which Impositions are assessed
\nor imposed against the parties change materially from the procedures
\nor methods of computation by which they are imposed as of the date
\nhereof (e.g., by the imposition or assessment of a right-of-way fee
\nthat is in substance a “tax” because it substantially exceeds the fair
\nmarket value of the right-of-way rights), the parties will negotiate
\nin good faith an amendment to the provisions of this Article XVII in
\norder to preserve, to the extent reasonably possible, the economic
\nintent and effect of this Article XVII as of the date hereof.<\/p>\n
ARTICLE XVIII.<\/p>\n
NOTICE<\/p>\n
18.1 Unless otherwise provided herein, all notices and
\ncommunications concerning this Agreement shall be addressed to the
\nother party as follows:<\/p>\n
If to QWEST: QWEST Communications Corporation
\n ATTENTION: President
\n 555 Seventeenth Street
\n Denver, Colorado 80202
\n Telephone No.: (303) 291-1400
\n Facsimile No.: (303) 291-1724<\/p>\n
with a copy to: QWEST Communications Corporation
\n ATTENTION: General Counsel
\n 555 Seventeenth Street
\n Denver, Colorado 80202
\n Telephone No.: (303) 291-1400
\n Facsimile No.: (303) 291-1724<\/p>\n
If to WORLDCOM: WORLDCOM, Inc.
\n c\/o WORLDCOM Network Services, Inc.
\n ATTENTION: Vice President – Network Operations
\n One Williams Center
\n Tulsa, Oklahoma 74172
\n Facsimile No.: (918)590-5598<\/p>\n
and to: WORLDCOM Network Services, Inc.
\n ATTENTION: Contract Administration
\n One Williams Center
\n Tulsa, Oklahoma 74172
\n Facsimile No.: (918) 590-3293<\/p>\n
and, if claiming
\n an event of default,
\n with a copy to: Michael D. Cooke
\n Hall, Estill, Hardwick, Gable, Golden & Nelson
\n 320 S. Boston Avenue, Suite 400
\n Tulsa, Oklahoma 74105
\n Facsimile No.: (918) 594-0505<\/p>\n
or at such other address as may be designated in writing to the other
\nparty.<\/p>\n
18.2 Unless otherwise provided herein, notices shall be hand
\ndelivered, sent by registered or certified U.S. Mail, postage prepaid,
\nor by commercial overnight delivery service, or transmitted by
\nfacsimile, and shall be deemed served or delivered to the addressee or
\nits office when received at the address for notice specified above
\nwhen hand delivered, upon confirmation of sending when sent by fax, on
\nthe day after being sent when sent by overnight delivery service, or
\nthree (3) days after deposit in the mail when sent by U.S. mail.<\/p>\n
ARTICLE XIX.<\/p>\n
CONFIDENTIALITY<\/p>\n
19.1 If the parties to this Agreement have entered into (or later
\nenter into) a Confidentiality Agreement, the terms of such an
\nagreement shall control and Section 19.1 of this Article shall not
\napply; however, if any such Confidentiality Agreement expires or is no
\nlonger effective at any time during the Term of this Agreement, this
\nSection 19.1 shall be in effect during those periods.<\/p>\n
19.2 In the absence of a separate Confidentiality Agreement between
\nthe parties, if either party provides confidential information to the
\nother in writing and identified as such, the receiving party shall
\nprotect the confidential information from disclosure to third parties
\nwith the same degree of care accorded its own confidential and
\nproprietary information. Neither party shall be required to hold
\nconfidential any information which (i) becomes publicly available
\nother than through the recipient; (ii) is required to be disclosed by
\na governmental or judicial order, rule or regulation; (iii) is
\nindependently developed by the disclosing party; or (iv) becomes
\navailable to the disclosing party without restriction from a third
\nparty. These obligations shall survive expiration or termination of
\nthis Agreement<\/p>\n
19.3 Notwithstanding Sections 19.1 and 19.2 of this Article,
\nconfidential information shall not include information disclosed by
\nthe receiving party as required by applicable law or regulation;
\nprovided that the information disclosed is limited to the existence
\nand general nature of the relationship between the parties, including,
\nas required, the scope, approximate revenues, purposes and
\nexpectations related to such relationship and a description of any
\ndisputes relating thereto. Notwithstanding the foregoing, this
\nAgreement may be provided to any governmental agency or court of
\ncompetent jurisdiction to the extent required by applicable law.<\/p>\n
ARTICLE XX.
\n DEFAULT
\n 20.1 With respect to all payments required to be made by WORLDCOM
\nhereunder, WORLDCOM shall be in default hereunder if such payment is
\nnot paid on the date due and payable hereunder, and from and after
\nsuch date such unpaid amount shall bear interest until paid at a rate
\nequal to the rate set forth in Article XXVII. With respect to all
\nnon-payment obligations, WORLDCOM shall be in default under this
\nAgreement thirty (30) days after QWEST shall have given WORLDCOM
\nwritten notice of such default unless WORLDCOM shall have cured such
\ndefault or such default is otherwise waived within such thirty (30)
\ndays; provided, however, that where such default cannot reasonably be
\ncured within such thirty (30) day-period, if WORLDCOM shall proceed
\npromptly to cure the same and prosecute such curing with due
\ndiligence, the time for curing such default shall be extended for such
\nperiod of time as may be necessary to complete such curing. Events of
\ndefault also shall include, but not be limited to, the making by
\nWORLDCOM of a general assignment for the benefit of its creditors, the
\nfiling of a voluntary petition in bankruptcy or the filing of a
\npetition in bankruptcy or other insolvency protection against WORLDCOM
\nwhich is not dismissed within ninety (90) days thereafter, or the
\nfiling by WORLDCOM of any petition or answer seeking, consenting to,
\nor acquiescing in reorganization, arrangement, adjustment composition,
\nliquidation, dissolution, or similar relief. Any event of default by
\nWORLDCOM may be waived under the terms of this Agreement at QWEST’s
\noption. Upon the failure by WORLDCOM to timely cure any such default
\nafter notice thereof from QWEST, QWEST may (i) take such action as it
\ndetermines, in its sole discretion, to be necessary to correct the
\ndefault, and (ii) pursue any legal remedies it may have under
\napplicable law or principles of equity relating to such breach.
\nNotwithstanding the above, if WORLDCOM certifies in good faith to
\nQWEST in writing that a default has been cured, such default shall be
\ndeemed to be cured unless QWEST otherwise notifies WORLDCOM in writing
\nwithin fifteen (15) days of receipt of such notice from WORLDCOM.<\/p>\n
20.2. With respect to all payments required to be made by QWEST
\nhereunder, QWEST shall be in default hereunder if such payment is not
\npaid on the date due and payable hereunder, and from and after such
\ndate such unpaid amount shall bear interest until paid at a rate equal
\nto the rate set forth in Article XXXIII With respect to its obligation
\nto deliver the various Segments by the respective Scheduled Delivery
\nDates, QWEST shall be in default under this Agreement sixty (60) days
\nafter WORLDCOM shall have given QWEST written notice of its failure to
\ndeliver a Segment by the relevant Scheduled Delivery Date unless QWEST
\nshall have cured such default or such default is otherwise waived
\nwithin such sixty (60) days. With respect to all other non-payment
\nobligations, QWEST shall be in default under this Agreement thirty
\n(30) days after WORLDCOM shall have given QWEST written notice of such
\ndefault unless QWEST shall have cured such default or such default is
\notherwise waived within thirty (30) days; provided, however, that
\nwhere such default cannot reasonably be cured within such thirty (30)
\nday-period, if QWEST shall proceed promptly to cure the same and
\nprosecute such curing with due diligence, the time for curing such
\ndefault shall be extended for such period of time as may be necessary
\nto complete such curing. Events of default also shall include, but
\nnot be limited to, the making by QWEST of a general assignment for the
\nbenefit of its creditors, the filing of a voluntary petition in
\nbankruptcy or the filing of a petition in bankruptcy or other
\ninsolvency protection against QWEST which is not dismissed within
\nninety (90) days thereafter, or the filing by QWEST of any petition or
\nanswer seeking, consenting to, or acquiescing in reorganization,
\narrangement, adjustment, composition, liquidation, dissolution, or
\nsimilar relief. Any event of default by QWEST may be waived under the
\nterms of this Agreement at WORLDCOM’s option. Upon the failure by
\nQWEST to timely cure any such default after notice thereof from
\nWORLDCOM, WORLDCOM may (i) take such action as it determines, in its
\nsole discretion, to be necessary to correct the default, and (ii)
\npursue any legal remedies it may have under applicable law or
\nprinciples of equity relating to such breach. Notwithstanding the
\nabove, if QWEST certifies in good faith to WORLDCOM in writing that a
\ndefault has been cured, such default shall be deemed to be cured
\nunless WORLDCOM otherwise notifies QWEST in writing within fifteen
\n(15) days of receipt of such notice from QWEST.<\/p>\n
ARTICLE XXI.<\/p>\n
TERMINATION<\/p>\n
21.1 Upon the expiration of this Agreement, QWEST’s IRU in the
\nWORLDCOM Conduit System shall immediately terminate and all rights of
\nQWEST to use the QWEST Conduit, or any part thereof, shall cease and
\nWORLDCOM shall owe QWEST no additional duties or consideration with
\nrespect to the QWEST Conduit. QWEST shall remove all electronics and
\nequipment from any WORLDCOM facilities at its sole cost under
\nWORLDCOM’s supervision.<\/p>\n
21.2 Upon the expiration of this Agreement, WORLDCOM’s IRU in the
\nQWEST System shall immediately terminate and all rights of WORLDCOM to
\nuse the QWEST System, or any part thereof, shall cease and QWEST shall
\nowe WORLDCOM no additional duties or consideration with respect to the
\nQWEST System. WORLDCOM shall remove all electronics, equipment and
\nregeneration facilities from any QWEST facilities at its sole cost
\nunder QWEST’s supervision.<\/p>\n
21.3 Notwithstanding the foregoing, no termination or expiration of
\nthis Agreement shall affect the rights or obligations of any party
\nhereto (i) with respect to any then existing defaults or the
\nobligation to make any payment hereunder for services rendered prior
\nto the date of termination or expiration or (ii) pursuant to
\nArticle XIV, Article XV, Article XVII or Article XIX herein, which
\nshall survive the expiration or termination hereof.<\/p>\n
ARTICLE XXII.
\n FORCE MAJEURE
\n 22.1 Neither party shall be in default under this Agreement to the
\nextent that any delay in such party’s performance is caused by any of
\nthe following conditions, and such party’s performance shall be
\nexcused and extended during the period of any such delay: act of God;
\nfire; flood; fiber, Cable, or other material shortages or
\nunavailability or other delay in delivery not resulting from the
\nresponsible party’s failure to timely place orders therefor (it being
\nexpressly acknowledged that the fiber optic cable that is being
\nacquired for and installed in the QWEST System and that will include
\nthe WORLDCOM Fiber must include higher fiber counts than that
\nnecessary solely for the WORLDCOM Fiber in order to permit completion
\nof the entire QWEST System); lack of or delay in transportation;
\ngovernment codes, ordinances, laws, rules, regulations or restrictions
\n(collectively, “Regulations”) (but not to the extent the delay caused
\nby such Regulations could be reasonably avoided by rerouting the
\nCable); war or civil disorder; failure of a third party to grant a
\nrequired permit easement, or other required authorization for use of
\nthe intended right-of-way (provided that such required authorization
\nwas sought and pursued on a timely and reasonable best efforts basis),
\nor any other cause beyond the commercially reasonable control of such
\nparty, provided that the party claiming relief under this Article
\nshall promptly notify the other in writing of the existence of the
\nevent relied on and the cessation or termination of said event. The
\nparty claiming relief under this Article shall exercise reasonable
\nefforts to minimize the time for any such delay.<\/p>\n
ARTICLE XIII.
\n ARBITRATION
\n 23.1 Any dispute or disagreement arising between QWEST and WORLDCOM
\nin connection with this Agreement which is not settled to the mutual
\nsatisfaction of QWEST and WORLDCOM within thirty (30) days from the
\ndate that either party informs the other in writing that such dispute
\nor disagreement exists, shall be settled by arbitration in Kansas
\nCity, Missouri, in accordance with the Commercial Arbitration Rules of
\nthe American Arbitration Association in effect on the date that such
\nnotice is given. If the parties are unable to agree on a single
\narbitrator within fifteen (15) days, each party shall select an
\narbitrator and the two (2) arbitrators shall mutually select a third
\narbitrator, the three of whom shall serve as an arbitration panel.
\nThe decision of the arbitrator(s) shall be final and binding upon the
\nparties and shall include written findings of law and fact, and
\njudgment may be obtained thereon by either party in a court of
\ncompetent jurisdiction. Each party shall bear the cost of preparing
\nand presenting its own case. The cost of the arbitration, including
\nthe fees and expenses of the arbitrator(s), shall be shared equally by
\nthe parties hereto unless the award otherwise provides.<\/p>\n
23.2 The obligation herein to arbitrate shall not be binding upon
\nany party with respect to requests for preliminary injunctions,
\ntemporary restraining orders or other similar temporary procedures in
\na court of competent jurisdiction to obtain interim relief when deemed
\nnecessary by such court to preserve the status quo or prevent
\nirreparable injury pending resolution by arbitration of the actual
\ndispute. It is not the intention of the parties that such injunctive
\nprocedures shall be in lieu of, or cause substantial delay to, any
\narbitration proceeding commenced under Section 23.1 above.<\/p>\n
ARTICLE XXIV.
\n WAIVER
\n 24.1 The failure of either party hereto to enforce any of the
\nprovisions of this Agreement, or the waiver thereof in any instance,
\nshall not be construed as a general waiver or relinquishment on its
\npart of any such provision, but the same shall nevertheless be and
\nremain in full force and effect.<\/p>\n
ARTICLE XXV.
\n GOVERNING LAW
\n 25.1 This Agreement shall be governed by and construed in
\naccordance with the domestic laws of the State of Colorado, without
\nreference to its choice of law principles.<\/p>\n
ARTICLE XXVI.<\/p>\n
RULES OF CONSTRUCTION<\/p>\n
26.1 The captions or headings in this Agreement are strictly for
\nconvenience and shall not be considered in interpreting this Agreement
\nor as amplifying or limiting any of its content. Words in this
\nAgreement which import the singular connotation shall be interpreted
\nas plural, and words which import the plural connotation shall be
\ninterpreted as singular, as the identity of the parties or objects
\nreferred to may require.<\/p>\n
26.2 Unless expressly defined herein, words having well known
\ntechnical or trade meanings shall be so construed. All listing of
\nitems shall not be taken to be exclusive, but shall include other
\nitems, whether similar or dissimilar to those listed, as the context
\nreasonably requires.<\/p>\n
26.3 Except as set forth to the contrary herein, any right or
\nremedy of WORLDCOM or QWEST shall be cumulative and without prejudice
\nto any other right or remedy, whether contained herein or not.<\/p>\n
26.4 Nothing in this Agreement is intended to provide any legal
\nrights to anyone not an executing party of this Agreement.<\/p>\n
26.5 This Agreement has been fully negotiated between and jointly
\ndrafted by the parties.<\/p>\n
26.6 In the event of a conflict between the provisions of this
\nAgreement and those of any Exhibit, the provisions of this Agreement
\nshall prevail and such Exhibits shall be corrected accordingly. In
\nthe event of any conflict between the provisions of Exhibit B and
\nthose of Exhibit C, the provisions of Exhibit B shall prevail and
\nExhibit C shall be corrected accordingly.<\/p>\n
26.7 All actions, activities, consents, approvals and other
\nundertakings of the parties in this Agreement shall be performed in a
\nreasonable and timely manner, it being expressly acknowledged and
\nunderstood that time is of the essence in the performance of
\nobligations required to be performed by a date expressly specified
\nherein. Except as specifically set forth herein, for the purpose of
\nthis Article the normal standards of performance within the
\ntelecommunications industry in the relevant market shall be the
\nmeasure of whether a party’s performance is reasonable and timely.<\/p>\n
ARTICLE XXVII.<\/p>\n
ASSIGNMENT AND DARK FIBER TRANSFERS<\/p>\n
27.1 Except as provided below, QWEST shall not assign, encumber or
\notherwise transfer this Agreement or its rights or obligations
\nhereunder to any other party without the prior written consent of
\nWORLDCOM, which consent will not be unreasonably withheld or delayed.
\nQWEST shall have the right, without WORLDCOM’s consent, to assign or
\notherwise transfer this Agreement (i) as collateral to any
\ninstitutional lender to QWEST (or to any permitted transferee or
\nassignee of QWEST) subject to the prior rights and obligations of the
\nparties hereunder, (ii) to any parent, subsidiary or affiliate of
\nQWEST, (iii) to any person, firm or corporation which shall control,
\nbe under the control of or be under common control with QWEST, or (iv)
\nany corporation or other entity into which QWEST may be merged or
\nconsolidated or which purchases all or substantially all of the assets
\nof QWEST; provided that the assignee or transferee in any such
\ncircumstance shall continue to be subject to all of the provisions of
\nthis Agreement, including without limitation, this Section 27.1
\n(except that any lender referred to in clause (i) above shall not
\nincur any obligations under this Agreement nor shall it be restricted
\nfrom exercising any right of enforcement or foreclosure with respect
\nto any related security interest or lien, so long as the purchaser in
\nforeclosure is subject to the provisions of this Agreement, including,
\nwithout limitation, this Section 27. 1); provided further that
\npromptly following any such assignment or transfer QWEST shall give
\nWORLDCOM written notice identifying the assignee or transferees and
\nprovided further that any such assignment or transfer shall be
\nconditioned upon the corresponding assignment or transfer of QWEST’s
\nrights and obligations under the Maintenance Agreement. In the event
\nof any permitted partial assignment of any rights hereunder, QWEST
\nshall remain the sole point of contact with WORLDCOM.<\/p>\n
27.2 Except as provided below, WORLDCOM shall not assign, encumber
\nor otherwise transfer this Agreement or its rights or obligations
\nhereunder to any other party without the prior written consent of
\nQWEST, which consent will not be unreasonably withheld or delayed.
\nSubject to the provisions of Section 27.3 (which provision shall be
\nbinding upon any permitted assignee or transferee hereunder), WORLDCOM
\nshall have the right, without QWEST’s consent, to assign or otherwise
\ntransfer this Agreement (i) as collateral to any institutional lender
\nto WORLDCOM (or to any permitted transferee or assignee of WORLDCOM)
\nsubject to the prior rights and obligations of the parties hereunder,
\n(ii) to any parent, subsidiary or affiliate of WORLDCOM, (iii) to any
\nperson, firm or corporation which shall control, be under the control
\nof or be under common control with WORLDCOM, or (iv) any corporation
\ninto which WORLDCOM may be merged or consolidated or which purchases
\nall or substantially all of the assets of WORLDCOM; provided that the
\nassignee or transferee in any such circumstance shall continue to be
\nsubject to all of the provisions of this Agreement, including without
\nlimitation this Section 27.2 and the following Section 27.3 (except
\nthat any lender referred to in clause (i) above shall not incur any
\nobligations under this Agreement nor shall it be restricted from
\nexercising any right of enforcement or foreclosure with respect to any
\nrelated security interest or lien, so long as the purchaser in
\nforeclosure is subject to the provisions of this Agreement, including,
\nwithout limitation, this Section 27.1 and the following Section 27.3);
\nprovided further that, promptly following any such assignment or
\ntransfer, WORLDCOM shall give QWEST written notice identifying the
\nassignee or transferee; and provided further that any such assignment
\nor transfer shall be conditioned upon the corresponding assignment or
\ntransfer of WORLDCOM’s rights and obligations under the Maintenance
\nAgreement. In the event of any permitted partial assignment of any
\nrights hereunder, WORLDCOM shall remain the sole point of contact with
\nQWEST.<\/p>\n
27.3 Notwithstanding the provisions of Article XIII, without the
\nprior written consent of QWEST, which consent may be withheld in
\nQWEST’s sole discretion, WORLDCOM, for a period of <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
from the date of this Agreement, shall not sell, lease, grant an IRU with
\nrespect to, exchange, or otherwise in any manner transfer or make
\navailable in any manner to any third party the ownership, right to
\nuse, use of, or access in any manner to any of the whole and discrete
\nWORLDCOM Fibers (other than the Portland\/U.P. Fibers) as Dark Fibers,
\nor otherwise engage in a similar transaction with respect to WORLDCOM
\nFibers in a manner designed or intended to circumvent the foregoing
\nlimitations; provided that the foregoing restriction shall not apply
\nto the single partial assignment by WORLDCOM of the right to use one
\nof the WORLDCOM Fibers as a Dark Fiber for video and radio
\ntransmission services and\/or related applications, including, without
\nlimitation, graphic, visual, imaging, interactive and multimedia
\napplications.<\/p>\n
27.4 This Agreement and each of the parties’ respective rights and
\nobligations under this Agreement, shall be binding upon and shall
\ninure to the benefit of the parties hereto and each of their
\nrespective permitted successors and assigns.<\/p>\n
ARTICLE XXVIII.<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
28.1 Each party represents and warrants that:<\/p>\n
(a) It has the full right and authority to enter into,
\nexecute, deliver and perform its obligations under this Agreement;<\/p>\n
(b) It has taken all requisite corporate action to approve
\nthe execution, delivery and performance of this Agreement;<\/p>\n
(c) This Agreement constitutes a legal, valid and binding
\nobligation enforceable against such party in accordance with its
\nterms, subject to bankruptcy, insolvency, creditors’ rights and
\ngeneral equitable principles; and<\/p>\n
(d) Its execution of and performance under this Agreement
\nshall not violate any applicable existing regulations, rules, statutes
\nor court orders of any local, state or federal government agency,
\ncourt or body.<\/p>\n
28.2 QWEST warrants and represents that the Segments of the QWEST
\nSystem that it has constructed or will construct either have been or
\nshall be designed, engineered, installed, and constructed in material
\ncompliance with any and all applicable building, construction and
\nsafety codes for such construction and installation, as well as any
\nand all other applicable governmental laws, codes, ordinances,
\nstatutes and regulations.<\/p>\n
28.3 With respect to Segments 1, 2, 2A, 3 and 7, QWEST represents
\nand warrants that (i) such Segments, when constructed, generally were
\nconstructed substantially in accordance with the specifications set
\nforth in Exhibit B hereto, and (ii) except as set forth on Exhibit F
\nhereto, QWEST has no actual knowledge on the date hereof of any
\nmaterial deviation in the construction of such Segments from such
\nspecifications. With respect to Segment 3, QWEST represents and
\nwarrants that, other than as set forth in Exhibit F, it has no actual
\nknowledge on the date hereof of any material deviation in the
\nconstruction thereof from the As-Builts provided with respect thereto.
\nIf, within twenty-four (24) months from the respective Acceptance Date
\nfor each of Segments 1, 2, 2A, 3 and 7, there is an event or
\noccurrence that is caused by a material deviation in the construction
\nor installation of any of such Segments from such specifications, and
\nwhich has a material adverse effect on the operation or performance of
\nthe WORLDCOM Fibers in such Segment, then QWEST, at its sole cost and
\nexpense (including Impositions with respect thereto), shall repair the
\naffected portion of such Segment to the relevant specifications.<\/p>\n
28.4 With respect to Segments 4, 5 and 6, subject to the provisions
\nof Sections 1.2 and 1.3, QWEST represents and warrants that such
\nSegments shall be constructed in all material respects in accordance
\nwith the specifications set forth in Exhibit B hereto; provided that
\nWORLDCOM’s sole rights and remedies with respect to any failure to so
\nconstruct such Segments shall be (i) to inspect the construction,
\ninstallation and splicing, and participate in the acceptance testing,
\nof the WORLDCOM Fiber incorporated in such Segments, during the course
\nand at the time of the relevant construction, installation and testing
\nperiods for each portion of such Segment, as provided in Articles III
\nand IV, (ii) if, during the course of such construction, installation
\nand testing of a Segment any material deviation from the
\nspecifications set forth in Exhibit B is discovered, the construction
\nor installation of the affected portion of such Segment shall be
\nrepaired to such specification by QWEST at QWEST’s sole cost and
\nexpense, and (iii) if, at any time prior to the date that is twelve
\n(12) months after the Acceptance Date for a particular Segment,
\nWORLDCOM shall notify QWEST in writing of its discovery of a material
\ndeviation from the specifications set forth in Exhibit B with respect
\nto such Segment (which notice shall be given promptly following the
\ndate of such discovery, but in any event not later than the last day
\nof such 12-month period) the construction or installation of the
\naffected portion of such Segment shall be repaired to such
\nspecification by QWEST at QWEST’s sole cost and expense. For purposes
\nhereof, “material deviation” means a deviation which is reasonably
\nlikely to have a material adverse affect on the operation or
\nperformance of the WORLDCOM Fibers affected thereby.<\/p>\n
28.5 WORLDCOM warrants and represents that the WORLDCOM Conduit
\nSystem shall be designed, engineered, installed and constructed in
\nmaterial compliance with any and all applicable building, construction
\nand safety codes for such construction and installation, as well as
\nany and all other applicable governmental laws, codes, ordinances,
\nstatutes and regulations.<\/p>\n
28.6 WORLDCOM represents and warrants that the QWEST Conduit shall
\nbe constructed in all material respects in accordance with the
\nspecifications set forth in Exhibit B hereto; provided that QWEST’s
\nsole rights and remedies with respect to any failure to so construct
\nthe QWEST Conduit shall be (i) to inspect the construction and
\ninstallation of the QWEST Conduit and the subsequent installation of
\nthe cable installed therein during the course and the time of their
\nconstruction and installation as provided in Article V, (ii) if,
\nduring the course of such construction and installation any material
\ndeviation from the specifications set forth in Exhibit B is
\ndiscovered, the construction or installation of the affected portion
\nof the QWEST Conduit shall be repaired to such specification by
\nWORLDCOM at WORLDCOM’s sole cost and expense, and (iii) if, at any
\ntime prior to the date that is twelve (12) months after the QWEST
\nConduit Acceptance Date, QWEST shall notify WORLDCOM in writing of its
\ndiscovery of a material deviation from the specifications set forth in
\nExhibit B (which notice shall be given promptly following the date of
\nsuch discovery, but in any event not later than the last day of such
\n12-month period) the construction or installation of the affected
\nportion of the QWEST Conduit shall be repaired to such specification
\nat WORLDCOM’s sole cost and expense. For purposes hereof, “material
\ndeviation” means a deviation which is reasonably likely to have a
\nmaterial adverse affect on the operation or performance of QWEST
\nConduit or QWEST’s fiber optic cable housed therein.<\/p>\n
28.7 EXCEPT AS SET FORTH IN THE FOREGOING PARAGRAPHS 28.2, 28.3 AND
\n28.4, QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
\nWORLDCOM FIBERS OR THE SEGMENTS OF THE QWEST SYSTEM DELIVERABLE
\nHEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
\nPARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
\nDISCLAIMED.<\/p>\n
28.8 EXCEPT AS SET FORTH IN THE FOREGOING PARAGRAPHS 28.5 AND 28.6,
\nWORLDCOM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
\nWORLDCOM CONDUIT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
\nFOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
\nDISCLAIMED.<\/p>\n
ARTICLE XXIX.<\/p>\n
ENTIRE AGREEMENT- AMENDMENT<\/p>\n
29.1 This Agreement, together with the Maintenance Agreement, any
\nRegeneration Sharing Agreement, and any Confidentiality Agreement
\nentered into in connection herewith, constitutes the entire and final
\nagreement and understanding between the parties with respect to the
\nsubject matter hereof and supersedes all prior agreements relating to
\nthe subject matter hereof (including, without limitation that certain
\nletter agreement between the parties dated February 2, 1996), which
\nare of no further force or effect. The Exhibits referred to herein
\nare integral parts hereof and are hereby made a part of this
\nAgreement. This Agreement may only be modified or supplemented by an
\ninstrument in writing executed by a duly authorized representative of
\neach party.<\/p>\n
ARTICLE XXX.<\/p>\n
NO PERSONAL LIABILITY<\/p>\n
30.1 Each action or claim against any party arising under or
\nrelating to this Agreement shall be made only against such party as a
\ncorporation, and any liability relating thereto shall be enforceable
\nonly against the corporate assets of such party. No party shall seek
\nto pierce the corporate veil or otherwise seek to impose any liability
\nrelating to, or arising from, this Agreement against any shareholder,
\nemployee, officer or director of the other party. Each of such
\npersons is an intended beneficiary of the mutual promises set forth in
\nthis Article and shall be entitled to enforce the obligations of this
\nArticle.<\/p>\n
ARTICLE XXXI.<\/p>\n
CONFLICTS OF INTEREST<\/p>\n
31.1 Neither party shall use any funds received under this
\nAgreement for illegal purposes. Neither party shall pay any
\ncommission, fees or rebates to any employee of the other party, or
\nfavor any employee of such other party with gifts or entertainment of
\nsignificant cost or value intended to influence the actions of such
\nemployee in a manner inconsistent with that employee’s duty of loyalty
\nto its employer. If either party has reasonable cause to believe that
\none of the provisions in this Article has been violated, it, or its
\nrepresentative, may audit the relevant books and records of the other
\nparty for the sole purpose of establishing compliance with such
\nprovisions.<\/p>\n
ARTICLE XXXII.
\n RELATIONSHIP OF THE PARTIES
\n 32.1 The relationship between WORLDCOM and QWEST shall not be that
\nof partners, agents, or joint venturers for one another, and nothing
\ncontained in this Agreement shall be deemed to constitute a
\npartnership or agency agreement between them for any purposes,
\nincluding but not limited to federal income tax purposes. WORLDCOM
\nand QWEST, in performing any of their obligations hereunder, shall be
\nindependent contractors or independent parties and shall discharge
\ntheir contractual obligations at their own risk.<\/p>\n
ARTICLE XXXIII.
\n LATE PAYMENTS
\n 33.1 In the event a party shall fail to make any payment under this
\nAgreement when due, such amounts shall accrue interest, from the date
\nsuch payment is due until paid, including accrued interest, at an
\nannual rate equal to<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
of the prime rate of interest published by The Wall Street Journal as
\nthe base rate on corporate loans posted by a percentage of the
\nnation’s largest banks on the date any such payment is due or, if
\nlower, the highest percentage allowed by law.<\/p>\n
ARTICLE XXXIV.
\n SEVERABILITY
\n 34.1 If any term, covenant or condition contained herein shall, to
\nany extent, be invalid or unenforceable in any respect under the laws
\ngoverning this Agreement, the remainder of this Agreement shall not be
\naffected thereby, and each term, covenant or condition of this
\nAgreement shall be valid and enforceable to the fullest extent
\npermitted by law.<\/p>\n
ARTICLE XXXV.
\n COUNTERPARTS
\n 35.1 This Agreement may be executed in one or more counterparts,
\nall of which taken together shall constitute one and the same
\ninstrument.<\/p>\n
ARTICLE XXXVI.
\n CERTAIN DEFINITIONS
\n 36.1 The following terms hall have the stated definitions in this
\nAgreement.<\/p>\n
(a) “Cable” means the fiber optic cable and the fibers
\ncontained therein, and associated splicing connections, splice boxes
\nand vaults, and conduit, to be installed by QWEST as part of the QWEST
\nSystem.<\/p>\n
(b) “Costs” means actual, direct costs paid or payable in
\naccordance with the established accounting procedures generally used
\nby WORLDCOM or QWEST, as the case may be, and which it utilizes in
\nbilling third parties for reimbursable projects which costs shall
\ninclude, without limitation, the following: (i) labor costs, including
\nwages and salaries, and benefits and overhead allowable to such labor
\ncosts (overhead allocation percentage shall not exceed the lesser of
\n(x) the percentage QWEST or WORLDCOM, as applicable, allocates to its
\ninternal projects or (y)<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
, and (ii) other direct costs and out-of-pocket expenses on a pass-
\nthrough basis (e.g., equipment, materials, supplies, contract
\nservices, etc.).<\/p>\n
(c) “Dark Fiber” means fiber provided without electronics or
\noptronics, and which is not “lit” or activated; provided that such
\nfiber may be used in any manner and for any purpose permitted under
\nArticle XIII.<\/p>\n
(d) “Final Acceptance Date” means the last date on which
\nWORLDCOM has accepted the latest of the Segments to be accepted.<\/p>\n
(e) “Impositions” means all taxes, fees, levies, imposts,
\nduties, charges or withholdings of any nature (including, without
\nlimitation, franchise, license and permit fees), together with any
\npenalties, fines or interest thereon arising out of the transactions
\ncontemplated by this Agreement and imposed upon the QWEST System or
\nthe WORLDCOM Conduit System by any federal, state or local government
\nor other public taxing authority.<\/p>\n
(f) “Indefeasible Right of Use” or “IRU” means (i) an
\nexclusive, indefeasible right of use, for the purposes described
\nherein, in the WORLDCOM Fibers or the QWEST Conduit, as applicable, as
\ngranted in Article II or Article V, as applicable, and (ii) an
\nassociated non-exclusive, indefeasible right of use, for the purposes
\ndescribed herein, in the QWEST Associated Property or the WORLDCOM
\nAssociated Property, as applicable; provided that, IRUs granted
\nhereunder do not provide the grantee with any ownership interest in or
\nother rights to physical access to, control of, modification of,
\nencumbrance in any manner of, or other use of the WORLDCOM Conduit
\nSystem or the QWEST System except as expressly set forth herein.<\/p>\n
(g) “POP” means the point of presence at each of the end
\npoint and intermediate point locations identified in Exhibit A.<\/p>\n
(h) “PSWP” means Planned System Work Period, which is a
\nprearranged period of time reserved for performing certain work on the
\nSystem that may potentially impact traffic. Generally, this will be
\nrestricted to weekends, avoiding the first and last weekend of each
\nmonth and high-traffic weekends.<\/p>\n
(i) “QWEST System” shall have the meaning ascribed thereto in
\nRecital A.<\/p>\n
(j) “Scheduled Delivery Date” for the completion of the
\ninstallation of any Segment shall mean the applicable date shown in
\nSection 1.4, as extended to the extent of any delay described in
\nArticle XXII.<\/p>\n
(k) “Segment” means any one of those city pairs identified in
\nArticle II.<\/p>\n
(l) “WORLDCOM Conduit System” shall have the meaning ascribed
\nthereto in Recital D.
\n ARTICLE XXXVII.
\n THIRD PARTY WARRANTIES
\n 37.1 In the event any maintenance or repairs to the QWEST System
\nare required as a result of a breach of any warranty made by any
\nmanufacturers, contractors or vendors, QWEST, as applicable, shall
\npursue any remedies it may have against such manufacturers,
\ncontractors or vendors, and QWEST shall reimburse WORLDCOM’s costs for
\nany maintenance WORLDCOM has incurred as a result of any such breach
\nof warranty to the extent the manufacturer, contractor or vendor has
\npaid such costs. In the event any maintenance or repairs to the
\nWORLDCOM Conduit System are required as a result of a breach of any
\nwarranty made by any manufacturers, contractors or vendors, WORLDCOM,
\nas applicable, shall pursue any remedies it may have against such
\nmanufacturers, contractors or vendors, and WORLDCOM shall reimburse
\nQWEST’s costs for any maintenance QWEST has incurred as a result of
\nany such breach of warranty to the extent the manufacturer, contractor
\nor vendor has paid such costs.<\/p>\n
In confirmation of their consent and agreement to the terms and
\nconditions contained in this IRU Agreement and intending to be legally
\nbound hereby, the parties have executed this IRU Agreement as of the
\ndate first above written.<\/p>\n
“QWEST”:<\/p>\n
QWEST COMMUNICATIONS CORPORATION, a Delaware
\n corporation<\/p>\n
By:\/s\/
\n Name: Douglas H. Hanson
\n Title: President and Chief Executive Officer<\/p>\n
“WORLDCOM”:<\/p>\n
WORLDCOM NETWORK SERVICES, INC., a Delaware
\n corporation<\/p>\n
By:\/s\/
\n Name: Scott Sullivan
\n Title: Chief Financial Officer<\/p>\n
EXHIBIT A<\/p>\n
QWEST System
\n Description
\n EXHIBIT A<\/p>\n
Segment 1<\/p>\n
DALLAS-HOUSTON<\/p>\n
Dallas – 1201 Main Street End Point<\/p>\n
Houston – the existing WorldCom cable at the End Point
\nintersection of Hardy and Lyons Street<\/p>\n
DALLAS, TX. TO HOUSTON, TX.
\n REQUIRES STREET BUILD OF 7,550′ FROM 1201 MAIN STREET TO
\n EXISTING DUCT SYSTEM AT INTERSECTION OF HALL STREET AND
\nD.A.R.T. PROPERTY. USE EXISTING FIBER PLACED ON QWEST PROPERTY AT 777
\nWALKER STREET IN HOUSTON. REQUIRES 850′ STREET BUILD OR USE OF
\nWORLDCOM DUCT FROM 777 WALKER STREET TO INTERSECTION OF LYONS & HARDY STREET IN
\nHOUSTON.<\/p>\n
DALLAS
\n (1201 MAIN STREET)<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 269 MILES<\/p>\n
MEXIA<\/p>\n
BRYAN<\/p>\n
EUREKA<\/p>\n
HOUSTON
\n (INTERSECTION OF LYONS & HARDY STREET)<\/p>\n
EXHIBIT A<\/p>\n
Segment 2<\/p>\n
DALLAS-EL PASO<\/p>\n
Denver – 910 15th Street End Point<\/p>\n
Albuquerque – 200 Lomas Boulevard Intermediate Point<\/p>\n
El Paso – 201 East Main Street End Point<\/p>\n
Colorado Springs Connecting Point<\/p>\n
Pueblo Connecting Point<\/p>\n
DENVER, CO TO EL PASO, TX
\n PULL CABLE FROM 910 15TH STREET IN DENVER TO 200 LOMAS BLVD. IN
\n ALBUQUERQUE AND FROM 200 LOMAS BLVD. TO 201 E. MAIN STREET IN
\n EL PASO. THIS WILL REQUIRE A 3,500′ STREET BUILD IN DENVER, AN
\n ADDITIONAL 13.8 MILE RAILROAD BUILD FROM DENVER TO LITTLETON,
\n THE USE OF EXISTING CONDUIT FROM LITTLETON TO ALBUQUERQUE,
\n A 700′ STREET BUILD TO LOMAS BLVD., AND THE USE OF EXISTING
\n CONDUIT FROM ALBUQUERQUE TO 201 E. MAIN STREET IN EL PASO.<\/p>\n
DENVER
\n (910 15TH ST.)
\n 3,500′ STREET BUILD<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 749 MILES<\/p>\n
LAMY, NM<\/p>\n
ALBUQUERQUE<\/p>\n
200 E. LOMAS BLVD.
\n 700′ STREET BUILD<\/p>\n
EL PASO
\n (201 E. MAIN ST.)<\/p>\n
EXHIBIT A<\/p>\n
Segment 2A<\/p>\n
LAMY, NM – SANTA FE, NM<\/p>\n
Lamy – Qwest System Handhole on Right-of-Way End Point<\/p>\n
Santa Fe – Qwest System Terminus on Right-of-Way End Point<\/p>\n
LAMY, NM. TO SANTA FE, NM.
\n USE EXISTING QWEST CONDUIT SYSTEM
\n BETWEEN LAMY AND SANTA FE<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 17 MI.<\/p>\n
SANTA FE
\n LAMY NM.<\/p>\n
EXHIBIT A<\/p>\n
Segment 3<\/p>\n
SANTA CLARA, CALIFORNIA – SALT LAKE CITY, UTAH<\/p>\n
Santa Clara – 2300 Walsh Street, Building K End Point<\/p>\n
Sacramento – 770 L Street Intermediate Point<\/p>\n
Salt Lake City – 136 E. South Temple Street End Point<\/p>\n
Reno Connecting Point<\/p>\n
Oakland Connecting Point<\/p>\n
SANTA CLARA, CA. TO SALT LAKE CITY, UT.
\n PULL CABLE FROM 2300 WALSH STREET (SANTA CLARA) TO JULIAN STREET
\n(SAN JOSE). USE EXISTING FIBER FROM JULIAN STREET TO ROSEVILLE, CA. (SOUTHERN
\nPACIFIC RAILROAD PROPERTY). IN SACRAMENTO USE EXISTING FIBER ON 6,600′
\nSTREET BUILD TO 770 L STREET. FROM ROSEVILLE TO RENO PULL CABLE THRU
\nEXISTING DUCT ON SOUTHERN PACIFIC PROPERTY. FROM RENO TO WELLS PULL
\nCABLE THRU EXISTING DUCT ON SOUTHERN PACIFIC PROPERTY. FROM WELLS
\nTO SALT LAKE CITY PULL CABLE THRU EXISTING DUCT ON UNION PACIFIC
\nPROPERTY. IN SALT LAKE CITY AN ADDITIONAL STREET BUILD WILL BE
\nREQUIRED FROM THE EXISTING CONDUIT ON RAILROAD PROPERTY TO 136 E. SOUTH TEMPLE
\n(7,450′)<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 871 MILES<\/p>\n
RENO SALT LAKE
\nCITY
\n MP 242.7 (136 E. SOUTH TEMPLE)
\n 7,450′ STREET BUILD<\/p>\n
ROSEVILLE
\n MP 106.6<\/p>\n
SACRAMENTO
\n MP 89.86 (A)
\n 770 L STREET<\/p>\n
SANTA CLARA
\n JULIAN STREET
\n (SAN JOSE)
\n MP 47.36 (DA)<\/p>\n
EXHIBIT A<\/p>\n
Segment 4<\/p>\n
OAKLAND – PORTLAND<\/p>\n
Oakland – 290 5th Street End Point<\/p>\n
Portland – 707 SW Washington Street End Point<\/p>\n
OAKLAND, CA. TO PORTLAND, ORE.
\n USE EXISTING FIBER PREVIOUSLY PULLED FROM SANTA CLARA TO
\n SAN JOSE, EXISTING CALFIBER CABLE FROM JULIAN STREET (SAN JOSE)
\n TO ROSEVILLE. IN SACRAMENTO USE EXISTING FIBER ON 6,600′ STREET
\n BUILD TO 770 L STREET. FROM ROSEVILLE TO PORTLAND FINAL
\n DETERMINATION HAS NOT BEEN MADE ON ROUTE.<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 752 MILES<\/p>\n
PORTLAND
\n (707 SW WASHINGTON STREET)<\/p>\n
ROSEVILLE
\n MP 108.6
\n SACRAMENTO
\n MP 89.86 (A)
\n 770 L STREET<\/p>\n
OAKLAND
\n MP 6.23 (D)
\n EXHIBIT A<\/p>\n
Segment 5<\/p>\n
CLEVELAND – BOSTON<\/p>\n
Cleveland – 1150 West 3rd Street End Point<\/p>\n
Boston – 800 Boylston Street End Point<\/p>\n
CLEVELAND, OHIO TO BOSTON, MASS.
\n CLEVELAND – 1150 W 3RD STREET
\n BUILD TO BE DETERMINED
\n BOSTON – 800 BOYLSTON STREET
\n BUILD TO BE DETERMINED<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 691 MILES<\/p>\n
CLEVELAND BOSTON
\n (1150 W 3RD STREET) (800 BOYLSTON STREET)<\/p>\n
EXHIBIT A<\/p>\n
Segment 6<\/p>\n
PORTLAND – SEATTLE<\/p>\n
Portland – 707 SW Washington Street End Point<\/p>\n
Seattle – 2001 6th Avenue End Point<\/p>\n
PORTLAND, OR. TO SEATTLE, WA.
\n PORTLAND 707 SW. WASHINGTON STREET
\n BUILD AND RIGHT OF WAY TO BE DETERMINED
\n SEATTLE 2001 6TH AVE.<\/p>\n
SEATTLE
\n (2001 6TH AVE)
\n TOTAL LENGTH OF SEGMENT APPROX. 182 MILES<\/p>\n
PORTLAND
\n (707 SW WASHINGTON STREET)<\/p>\n
EXHIBIT A<\/p>\n
Segment 7<\/p>\n
KANSAS CITY – ST. LOUIS<\/p>\n
Kansas City – location to be determined along route of existing
\nconduit system<\/p>\n
St. louis – location to be determined along route of existing conduit
\nsystem<\/p>\n
KANSAS CITY, MO. TO ST. LOUIS, MO
\n USE EXISTING QWEST CONDUIT SYSTEM
\n BETWEEN KANSAS CITY AND ST. LOUIS<\/p>\n
TOTAL LENGTH OF SEGMENT APPROX. 300 MI.<\/p>\n
KANSAS CITY<\/p>\n
ST. LOUIS<\/p>\n
EXHIBIT H
\n WORLDCOM CONDUIT SYSTEM DESCRIPTION<\/p>\n
ROUTE DESCRIPTION: THE ROUTE BEGINS AT A POINT NEAR PEVELY,
\nMISSOURI, AND PROCEEDS IN A NORTHEASTERLY DIRECTION TO A POINT APPROXIMATELY 10
\nMILES SOUTHEAST OF INDIANAPOLIS, INDIANA<\/p>\n
NEAR INDIANAPOLIS, IN.<\/p>\n
APPROX. 245 MILES<\/p>\n
PEVELY, MO.<\/p>\n
EXHIBIT B<\/p>\n
Construction Specifications<\/p>\n
Outside Plant Buried Cable Specifications<\/p>\n
Summary<\/p>\n
1.0 General.<\/p>\n
The intent of this document is to outline the specifications for
\n construction of a fiber optic cable system. In all cases, the
\n standards contained in this document or the standards of the
\n federal, state, local or private agency having jurisdiction,
\n whichever is stricter, shall be followed.<\/p>\n
2.0 Material.<\/p>\n
Steel or PVC conduit shall be minimum schedule<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
wall thickness.<\/p>\n
Any exposed steel conduit, brackets or hardware (i.e., bridge
\n attachments) shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
.<\/p>\n
Handholes shall have a minimum<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
loading rating or<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
with<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches of cover.<\/p>\n
Manholes shall have a minimum<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
loading rating.<\/p>\n
Innerducts used shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
or<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
.<\/p>\n
Buried cable warning tape shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
wide and display ”<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
.<\/p>\n
Warning signs will display<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Fiber optic cable shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
. All cable shall have a<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
; no<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
cable will be used except to enter buildings. Cable will be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
construction with<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
fibers per tube.<\/p>\n
Splice cases will be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
; splice trays shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
or equivalent, and heat shrinks shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
or equivalent.<\/p>\n
3.0 Minimum Depths.<\/p>\n
Minimum cover required in the placement of conduit\/cable shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches, except in the following instances:<\/p>\n
(a) The minimum cover in borrow ditches adjacent to roads,
\n highways, railroads, and interstate highways is<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches below the cleanout line or existing grade, whichever is
\ngreater.<\/p>\n
(b) The minimum cover across streams, river washes and other
\n waterways is<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches below the cleanout line or existing grade, whichever is
\ngreater.<\/p>\n
(c) At locations where fiber optic cable crosses other subsurface
\n utilities or other structures, the fiber optic cable\/conduit shall
\n be installed to provide a minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches of vertical clearance and applicable minimum depth can be
\nmaintained; otherwise the fiber optic cable\/conduit will be installed
\nunder the existing utility or other structure. If, however,<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches cannot be obtained, the cable shall be encased in steel pipe.<\/p>\n
(d) In rock, the conduit\/cable shall be placed to provide a
\n minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches below the surface of the solid rock, or provide a minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches of total cover, whichever requires the least rock excavation.<\/p>\n
(e) In the case of the use\/conversion of existing steel pipelines
\n or salvaged conduit systems, the existing depth shall be considered
\n adequate.<\/p>\n
4.0 Buried Cable Warning Tape.<\/p>\n
All cable\/conduit will be installed with buried cable warning tape
\n except where existing steel pipelines or salvaged conduit systems
\n are used. The warning tape shall generally be placed at a depth of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches below grade and directly above the cable\/conduit.<\/p>\n
5.0 Conduit Construction.<\/p>\n
Conduits may be placed by means of trenching, plowing, jack and
\n bore, mini-directional bore or directional bore. Conduits will
\n generally be placed on a level grade parallel to the surface, with
\n only gradual changes in grade elevation.<\/p>\n
Steel conduit will be joined with<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
is the preferred method).<\/p>\n
All paved city, state, federal and interstate highways and railroad
\n crossings will be encased in steel conduit. If the crossing is at
\n grade, steel is not required if the cable is placed with<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
feet of cover or more.<\/p>\n
All longitudinal cable runs under paved streets will be placed in
\n steel or concrete encased PVS conduit or buried with a minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
feet of cover, except that the system in Dallas has<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
installed at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches of cover.<\/p>\n
Metro areas shall be defined as areas where at least one of the
\n following conditions exist:<\/p>\n
(a) There are more than three paved public road crossings per
\n mile;<\/p>\n
(b) There are more than six utility crossings per mile;<\/p>\n
(c) Developed and improved areas;<\/p>\n
(d) High growth areas.<\/p>\n
Construction within railroad right-of-way, however, is not
\n considered to be metro.<\/p>\n
All crossings of major streams, rivers, bays and navigable
\n waterways will be placed in<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
conduit.<\/p>\n
At all foreign utility\/underground obstacle crossings,<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
conduit will be placed and will extend at least<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
feet beyond the outer limits of the obstacle in both directions.<\/p>\n
All jack and bores will use steel conduit.<\/p>\n
All directional or mini-directional bores will use<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
conduit.<\/p>\n
Any cable placed in rock will be placed in<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
conduit.<\/p>\n
Any cable placed in swamp or wetland areas will be placed in<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
conduit.<\/p>\n
All conduits placed on bridges will be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
.<\/p>\n
All conduits placed on bridges shall have expansion joints placed
\n at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
or at least every<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
, whichever is the shorter distance.<\/p>\n
6.0 Innerduct Installation.<\/p>\n
Innerduct(s) shall be installed in all steel conduits. No cable
\n will be placed directly in any split\/solid steel conduit without
\n innerduct.<\/p>\n
Innerduct(s) shall extend beyond the end of all conduits a minimum
\n of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches.<\/p>\n
7.0 Cable Installation.<\/p>\n
The fiber optic cable shall be installed using a powered pulling
\n winch and hydraulic-powered assist pulling wheels. The maximum
\n pulling force to be applied to the fiber optic cable shall be<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
pounds. Sufficient pulling assists will be available and used to
\ninsure the maximum pulling force is not exceeded at any point along
\nthe pull.<\/p>\n
The cable shall be lubricated.<\/p>\n
A pulling swivel break-away rated at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
pounds shall be used at all times.<\/p>\n
All splices will be contained in a handhole or manhole.<\/p>\n
A minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
meters of slack cable will be left in all intermediate handholes or
\nmanholes.<\/p>\n
A minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
meters of slack cable will be left in all splice locations.<\/p>\n
A minimum of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
meters of slack cable will be left in all facility locations (i.e.,
\nPOP sites, switch sites, regens or CEVs).<\/p>\n
8.0 Manholes and Handholes.<\/p>\n
Manholes shall be laced in traveled surface streets and shall have
\n locking lids.<\/p>\n
Handholes shall be placed in all other areas and be installed with
\n a minimum of <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches of soil-covering lid.<\/p>\n
9.0 EMS Markers.<\/p>\n
EMS markers shall be placed<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
inches directly above the lid of all buried handholes and assist
\npoints. EMS markers fabricated into the lids of handholes are
\nacceptable.<\/p>\n
10.0 Cable Markers (Warning Signs).<\/p>\n
Cable markers shall be installed at all changes in cable running
\n line direction, splices, pullboxes, assist pulling locations and at
\n both sides of street, highway or railroad crossings. At no time
\n shall any markers be spaced more than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
feet apart in metro areas and<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
feet apart in non-metro areas. Markers shall be positioned so that
\nthey can be seen from the location of the cable and generally set
\nfacing perpendicular to the cable running line.<\/p>\n
Splices, pullboxes and assists shall be marked on the cable marker
\n post. At splice points an<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
will be mounted to cable marker for termination of splice grounding
\nor<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
system (see attached).<\/p>\n
11.0 Safety and Environmental.<\/p>\n
All work will be done in strict accordance with federal, state,
\n local and applicable private rules and laws regarding safety and
\n environmental issues, including those set forth by OSHA and the
\n EPA.<\/p>\n
12.0 Field Cable Splicing and Testing.<\/p>\n
All cables entering the splice cases shall be on the same side of
\n the case; no “inline” splices are allowed.<\/p>\n
Only splices from one buffer tube will be housed in any splice
\n tray. No jumpers from tray to tray will be allowed. Splices shall
\n match up color-to-color in both the buffer tube and cladding; no
\n frogs are allowed.<\/p>\n
All splices shall be made with a profile alignment fusion splicing
\n machine. All splices shall be housed and protected in heat
\n shrinks.<\/p>\n
13.0 Fiber Termination.<\/p>\n
WORLDCOM Fibers will not appear at any bulkhead outside of
\n WORLDCOM’s facilities.
\n EXHIBIT C<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
EXHIBIT D<\/p>\n
Fiber Cable Splicing, Testing and Acceptance Procedures<\/p>\n
1. QWEST will perform all tests as laid out in Paragraphs 2, 3
\nand 4. The tests should follow the requirements and meet the criteria
\nas laid out in Paragraphs 5 and 6. QWEST will use the test equipment
\nand follow the testing standards as laid out in Paragraph 7. QWEST
\nwill provide test data to WORLDCOM according to the standards as laid
\nout in Paragraph 8.<\/p>\n
2. QWEST will perform two states of testing during the
\nconstruction of a new fiber cable route. Initially, OTDR tests will
\nbe taken from one direction because both ends of the cable may not
\nhave connectors. As son as fiber connectivity has been achieved to
\nboth regen sites. QWEST will verify and record the continuity of all
\nfibers. During this time, QWEST will take and record power level
\nreadings on all fibers at both wave lengths in both directions. QWEST
\nwill then begin bi-directional OTDR testing of all fibers. When
\nrequested in the following Paragraphs, QWEST will provide WORLDCOM
\nwith copies of the OTDR traces on diskette recorded according to the
\nstandards in Paragraph 8.<\/p>\n
3. During the initial construction, it is only possible to
\nmeasure the fiber from one direction. Because of this, splices will
\nbe qualified during initial construction by being measured with an
\nOTDR from only one direction. The pigtails will also be qualified at
\nthis stage using an OTDR and a 1 km launch reel. All measurements at
\nthis stage in construction will be taken at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm.<\/p>\n
a. A 1 km launch reel will be attached between the OTDR and
\nthe pigtail. The loss of the pigtail splice and connector will be
\nmeasured and recorded. QWEST will provide WORLDCOM with a copy of the
\nOTDR trace of the pigtail stored on diskette.<\/p>\n
b. As splice points are completed, OTDR measurements of the
\nsplice losses will be made and recorded. These measurements MUST BE
\nMADE AFTER THE SPLICE HANDHOLE OR MANHOLE IS CLOSED in order to check
\nfor macro-bending problems.<\/p>\n
c. When pigtails are attached to the opposite side of the
\ncable, the pigtail test will be performed for that site.<\/p>\n
4. After QWEST has provided end-to-end connectivity on the
\nfibers, bi-directional end-to-end testing will be done. Continuity
\ntests will e done to verify that no fibers have been “frogged” or
\ncrossed in any of the splice points. Loss measurements will be
\nrecorded using a laser source and a power meter. OTDR traces will be
\ntaken and splice loss measurements will be recorded. QWEST will also
\nstore OTDR traces on diskette.<\/p>\n
a. It is imperative to verify that all fibers have one-to-one
\ncontinuity on the new cable. This should be done at the fiber
\nlevel, not just the pigtail level. For each pigtail, an HE-NE laser
\nwill be used to verify fiber color and buffer tube color. Once the
\nfiber color and buffer tube color have been recorded, a laser light
\ncourse will be attached and a power meter reading will be taken at the
\nfar end. Then, at the far end, an HE-NE laser should be used to
\nverify the fiber color and the buffer tube color of the fiber
\nreceiving the light. Then power level readings should be taken in the
\nopposite direction. The power measurements should be made at both<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm and<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm.<\/p>\n
b. OTDR traces should be taken in both directions at both<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm and<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
. Loss measurements for each splice point should be measured and
\nrecorded in both directions. These loss values should then be
\naveraged. The traces for all fibers should be recorded on diskette
\nand provided to WORLDCOM.<\/p>\n
5. The test requirements for the initial uni-directional testing
\nare as follows (for all testing, it is critical that all test
\nconnections are clean during all testing procedures):<\/p>\n
a. The loss value of the pigtail connector and its
\nassociated splice will not exceed<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB. For values greater than this, the splice will be broken and
\nrespliced until an acceptable loss value is achieved. If, after five
\nattempts, QWEST is not able to produce a loss value less than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB, the splice will be marked as Out-of-Spec (“OOS”) and will be
\ninitialed by WORLDCOM representative on the data sheet. WORLDCOM will
\nthen make a decision as to how to act upon this condition.<\/p>\n
b. The objective for each splice is a loss of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB. Since this may not always be achievable, when measured in one
\ndirection with an OTDR, a loss of less than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB will be acceptable. If, after three attempts, QWEST is not able
\nto produce a loss value of less than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB, then<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB will be acceptable. If, after two additional attempts, a value of
\nless than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB is not achievable, then the splice will be marked as OOS and
\ninitiated by WORLDCOM representative on the data sheet. It should be
\nnoted that final acceptance of a splice is made based on bi-directional
\nOTDR data. Since this data is not available until
\nconstruction is complete, and a gauge for performance is needed during
\nconstruction, the value of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB will be satisfactory during this initial phase. If bi-directional
\nOTDR data proves to be unacceptable, QWEST will have to take measures
\nto remedy the situation.<\/p>\n
6. The test requirements for the final bi-directional testing are
\nas follows (for all testing, it is critical that all test connections
\nare clean during all testing procedures):<\/p>\n
a. The continuity test should prove that there is a one-to-
\none correspondence of all fibers. Any “frogs” or fibers that cross in
\nroute will be remedied by QWEST.<\/p>\n
b. Bi-directional OTDR data will be the tool used to make
\nfinal acceptance of the fibers. The average loss of each splice
\nshould not exceed<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
dB. Any splice points that exceed this value
\nwill be marked OOS and initialed by WORLDCOM representative on the
\ndata sheet. WORLDCOM will then make a decision as to how to act upon
\nthis condition.<\/p>\n
7. The OTDRs that are acceptable for testing are the<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
or compatible. These must have a floppy disk drive for storing the
\ntrace files. Again, it should be noted that it is vital that during
\nall tests (OTDR, power meter, etc.) that all connectors are clean.
\nThis can dramatically affect results if this is not resolved. The
\nfollowing settings should be used during the various tests:<\/p>\n
For all OTDRs, the following index of refraction settings should be
\nused:<\/p>\n
for AT&T fiber
\nfor Corning
\nSMF-21
\nfor Corning
\nSMF-28
\nfor Sumitomo
\nfiber
\nfor Corning
\nSMF-LS
\nTD1000A<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Pigtail<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Uni-Directional<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Bi-Directional<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
For spans which are longer than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
km between regens, a<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
will be required set at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
km range setting. Bi-directional data will only
\nbe required at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm.<\/p>\n
8. On the attached data sheets, all cable information must be
\nfilled in by QWEST and verified by WORLDCOM representative. These
\nthree forms are to contain the following information:<\/p>\n
a. Form #RLA-1-101995 is used to verify fiber continuity
\nfrom end-to-end. In addition, the power level readings taken with a
\nlaser source and power meter must be recorded for every fiber on this
\nsheet. In the column marked “fiber,” the fiber color must be
\nrecorded. In the buffer column, the buffer tube or ribbon color must
\nbe recorded. The pigtail column is for recording the pigtail number
\nwhich is attached to that particular fiber. On the opposite side of
\nthe page the corresponding values at the far end of the cable must be
\nrecorded. Each fiber between two sites should fill up both sides of
\nthe page, so that a total of 24 fibers will fit on each sheet.
\nAdditional sheets may be used if needed. The laser source power at
\nboth<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm and<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm must be recorded, followed by the received power at the far end of
\nthe cable.<\/p>\n
b. Form #RLA-2-101995 is for recording the loss at each
\nsplice point during initial construction, as well as the bi-directional
\ntest data taken as a final measurement on a cable
\ninstallation. One sheet should be used for each fiber. The distance
\nfrom site A must be recorded for all splice points. Each attempt made
\non a particular splice point must be noted with the value measured by
\nthe OTDR in one direction. OOS splices will be initiated by WORLDCOM
\nrepresentative. For the bi-directional OTDR testing, distance from
\nsite A must be recorded for each splice point. The loss at each
\nsplice point must be recorded at both wave lengths in both directions
\non the spaces provided. QWEST must then average these numbers to
\nobtain the average splice loss at each splice point for the fiber.
\nAgain, OOS splices will be initialed by WORLDCOM representative.<\/p>\n
c. Form #RLA-3-10995 is used to record information about the
\nfiber cable between two sites. One sheet should be used for each pair
\nof sites. Cable manufacturer, cable type (buffer\/ribbon), glass type,
\ncable reel number, number of fibers, and number of fibers per tube
\nmust be recorded for each section of cable between splice points. The
\ndistance from site A must be recorded for each splice point. The
\ndistance value may be written in at the same time the OTDR data is
\nbeing accumulated.<\/p>\n
d. OTDR traces taken for bi-directional testing and the OTDR
\ntraces of the pigtail launch splice must be recorded on floppy
\ndiskette. The eight-character file name, plus three-character file
\nextension name should follow this example:<\/p>\n
For bi-directional trade data, assume an OTDR reading is being
\ntaken from Los Angeles to Lemon.<\/p>\n
(i) Look up the four-letter alpha abbreviation for the site
\nthe OTDR is shooting from; i.e., Los Angeles = LSAN. Filename = LSAN;<\/p>\n
(ii) Look up the four-letter alpha abbreviation for the site
\nthe OTDR is shooting from; i.e., Lemon = LMAN. Only use the first two
\nin the file name. Filename = LSANLM;<\/p>\n
(iii) The next character indicates the cable number. For
\nsites where there is only one cable, this will be the number one (1).
\nIf there are multiple cables, then the second cable will be number two
\n(2), etc. Assuming there is only one cable between Los Angeles and
\nLemon, the file name is: Filename = LSANLM1;<\/p>\n
(iv) The next character indicates the wave length the trace is
\nbeing shot at. If the trace is at<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm, the number will be three (3). If the trace is a
\n##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##
\nnm, this
\nnumber will be a five (5). Assuming that the reading between Los
\nAngeles and Lemon is being taken at <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
nm, the file name is: Filename = LSANLM13;<\/p>\n
(v) The three-digit file extension is used to indicate the
\nfiber number that trace is being shot on. Fiber number one (1) is
\nnoted as “001.” Fiber number 23 is noted as “023.” Assuming that the
\ntrace is being taken on fiber number six (6), we now have a complete
\nfile name. Filename = LSANLM13.006.<\/p>\n
For a trace being taken from Lemon to Los Angeles at <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
on
\nfiber 17, the filename would be: Filename = LMONLS15.017.<\/p>\n
For pigtail\/launch trade data, assume an OTDR reading is being
\ntaken from Los Angeles.<\/p>\n
(i) Look up the four-letter alpha abbreviation for the site
\nthe OTDR is shooting from; i.e., Los Angeles = LSAN. Filename = LSAN;<\/p>\n
(ii) The next three characters of the file name will be “PIG”
\nto indicate that this is a trace of the pigtail. Filename = LSANPIG;<\/p>\n
(iii) The next character indicates the cable number. For
\nsites where there is only one cable, this will be the number one (1).
\nIf there are multiple cables, then the second cable will be number two
\n(2), etc. Assuming there is only one cable between Los Angeles and
\nLemon, the file name is: Filename = LSANPIG1;<\/p>\n
(iv) The three-digit file extension is used to indicate the
\nfiber number that race is being shot on. Fiber number one (1) is
\nnoted as “001.” Fiber number 23 is noted as “023.” Assuming that the
\ntrace is being taken on fiber number six (6), we now have a complete
\nfile name. Filename = LSANPIG1.006.<\/p>\n
For trace being taken from Lemon to Los Angeles on fiber 17,
\nthe filename would be: Filename = LMONPIG.017.<\/p>\n
EXHIBIT E
\n WorldCom Fiber Specifications<\/p>\n
[This exhibit contains product specification information that is
\nlargely set forth in graphic format]<\/p>\n
EXHIBIT F<\/p>\n
Exceptions to Warranty<\/p>\n
None<\/p>\n
EXHIBIT G<\/p>\n
EXISTING REGENERATOR SITE LOCATIONS<\/p>\n
Existing regenerator site locations on railroad right-of-way San Jose
\nto Salt Lake City.<\/p>\n
SITE<\/p>\n
MP LOCATION
\nFACILITY OWNER
\nRAILROAD<\/p>\n
1 Niles
\n40.60 DA
\nMCI
\nSouthern
\nPacific<\/p>\n
2 Richmond
\n13.96 A
\nMCI
\nSouthern
\nPacific<\/p>\n
3 Benecia
\n34.98 A
\nMCI
\nSouthern
\nPacific<\/p>\n
4 El Mira
\n60.68 A
\nMCI
\nSouthern
\nPacific<\/p>\n
5 Sacramento
\n86.37 A
\nMCI
\nSouthern
\nPacific<\/p>\n
6 Loomis
\n114.20 A
\nMCI
\nSouthern
\nPacific<\/p>\n
7 New
\nEngland
\n137.47 A
\nMCI
\nSouthern
\nPacific<\/p>\n
8 Blue
\nCanyon
\n165.33 A
\nMCI
\nSouthern
\nPacific<\/p>\n
9 Norden
\n190.76 A
\nMCI
\nSouthern
\nPacific<\/p>\n
10 Floriston
\n222.55 A
\nMCI
\nSouthern
\nPacific<\/p>\n
11 Vista
\n248.97 A
\nMCI
\nSouthern
\nPacific<\/p>\n
12 Gilpin
\n269.29 A
\nMCI
\nSouthern
\nPacific<\/p>\n
13 Hazen
\n287.00 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Parran
\n313.34 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Lovelock
\n340.20 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Ry Patch
\n366.07 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Mill City
\n388.38 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Winnemucca
\n413.53 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Preble
\n439.09 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Mote
\n466.84 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Argenta
\n488.98 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Beowawe
\n510.40 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Carlin
\n536.97 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Osino
\n562.07 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Deeth
\n589.21 A
\nMCI
\nSouthern
\nPacific<\/p>\n
Wells
\n717.03
\nMCI
\nSouthern
\nPacific<\/p>\n
Ventosa
\n740.32
\nMCI
\nUnion Pacific<\/p>\n
Shafter
\n766.04
\nMCI
\nUnion Pacific<\/p>\n
Pilot
\n795.30
\nMCI
\nUnion Pacific<\/p>\n
Salduro
\n820.77
\nMCI
\nUnion Pacific<\/p>\n
Knolls
\n845.51
\nMCI
\nUnion Pacific<\/p>\n
Low
\n870.11
\nMCI
\nUnion Pacific<\/p>\n
Burmester
\n896.78
\nMCI
\nUnion Pacific<\/p>\n
EQ
\n911.45=766.42
\nMCI
\nUnion Pacific<\/p>\n
Saltair
\n776.10
\nMCI
\nUnion Pacific<\/p>\n
Salt Lake
\nCity<\/p>\n
MCI
\nUnion Pacific<\/p>\n
Note: Between Wells and Wendover, Nevada there are several US Sprint
\nregenerators. They are at same locations as MCI because power sources
\nare very limited.<\/p>\n
EXHIBIT H<\/p>\n
WORLDCOM CONDUIT SYSTEM DESCRIPTION<\/p>\n
ROUTE DESCRIPTION: THE ROUTE BEGINS AT A POINT NEAR PEVELY, MISSOURI,
\nAND PROCEEDS IN A NORTHEASTERLY DIRECTION TO A POINT APPROXIMATELY 10
\nMILES SOUTHEAST OF INDIANAPOLIS, INDIANA<\/p>\n
NEAR INDIANAPOLIS, IN.<\/p>\n
APPROX. 245 MILES<\/p>\n
PEVELY, MO.<\/p>\n
EXHIBIT I<\/p>\n
MAINTENANCE AGREEMENT<\/p>\n
THIS MAINTENANCE AGREEMENT (this “Agreement”) is entered into this
\n____ day of February, 1996 by and between QWEST COMMUNICATIONS
\nCORPORATION, a Delaware corporation (“QWEST”), and WORLDCOM NETWORK
\nSERVICES, INC., a Delaware corporation (“WORLDCOM”).<\/p>\n
RECITALS<\/p>\n
A. QWEST and WORLDCOM are party to that certain IRU Agreement
\ndated February ___, 1996, providing, among other things, (i) a grant
\nby QWEST to WORLDCOM of an indefeasible right of use (“IRU”) in
\ncertain fibers in the QWEST System; and (ii) a grant by WORLDCOM to
\nQWEST of an option to elect to obtain an IRU in an installed, empty
\ninnerduct fiber optic conduit between Pevely, Missouri and
\nIndianapolis, Indiana (the “QWEST Conduit”) in the WORLDCOM Conduit
\nSystem. Capitalized terms used herein and not otherwise defined shall
\nhave the meaning set forth in the IRU Agreement.<\/p>\n
B. QWEST and WORLDCOM have agreed in the IRU Agreement to enter
\ninto this reciprocal Agreement to provide for the maintenance of
\n(i) Segments of the QWEST System and (ii) the QWEST Conduit.<\/p>\n
Accordingly, in consideration of the mutual promises set forth
\nbelow, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties agree as
\nfollows:<\/p>\n
ARTICLE I.<\/p>\n
GENERAL<\/p>\n
1.1 QWEST or WORLDCOM shall provide Scheduled and Unscheduled
\nMaintenance, as defined in Section 1.2 herein, on Segments 1 through 7
\non the QWEST System on the terms and conditions set forth herein. The
\nparty responsible for operating and maintaining certain Segments of
\nthe QWEST System or the QWEST Conduit shall be referred to herein as
\nthe “Service Provider.” The party receiving benefit from the Service
\nProvider shall be referred to herein as the “Service Recipient.”
\nQWEST shall be the Service Provider and WORLDCOM shall be the Service
\nRecipient for Segments 1, 2, 2A and 3. Subject to Sections 1.2 and
\n1.3 of the IRU Agreement and upon completion thereof, QWEST shall be
\nthe Service Provider and WORLDCOM shall be the Service Recipient for
\nSegments 4, 6 and 7. Subject to Section 1.2 of the IRU Agreement and
\nupon completion thereof, WORLDCOM shall be the Service Provider and
\nQWEST shall be the Service Recipient for Segment 5. Subject to
\nSection 5.1 of the IRU Agreement, WORLDCOM shall be the Service
\nProvider and QWEST shall be the Service Recipient for the QWEST
\nConduit.<\/p>\n
1.2 (a) Routine maintenance and repair of the QWEST System or
\nQWEST Conduit, as the case may be, shall be performed by or under the
\ndirection of Service Provider (“Scheduled Maintenance”), at Service
\nProvider’s reasonable discretion. Scheduled maintenance shall include
\nthe following activities:<\/p>\n
(i) Patrol of Segments of QWEST System route on a
\nregularly scheduled basis;<\/p>\n
(ii) Maintenance of a “Call-Before-You-Dig” program and
\nall required and related cable locates;<\/p>\n
(iii) Sign postings along the QWEST System or QWEST
\nConduit, as the case may be, right-of-way with the number of the local
\n“Call Before You Dig” organization and the 800 number for Service
\nProvider’s “Call Before You Dig” program; and<\/p>\n
(iv) Assignment of fiber maintenance technicians to
\nlocations along the route of the QWEST System or QWEST Conduit, as the
\ncase may be.<\/p>\n
(b) Maintenance and repair of the QWEST System or QWEST
\nConduit, as the case may be, which is not Scheduled Maintenance
\n(“Unscheduled Maintenance”), shall be performed by or under the
\ndirection of Service Provider. Notwithstanding Service Provider’s
\nobligation with respect to the QWEST Conduit, Service Recipient shall
\nhave the right to perform restoration and splicing of its cable (the
\n“QWEST Cable”) and\/or fibers contained in the QWEST Conduit. If
\nService Recipient elects to perform restoration and splicing on the
\nQWEST Cable and\/or fibers, Service Provider shall open the steel
\nconduit and provide access to the QWEST Cable to Service Recipient.
\nSuch opening of the steel conduit and access to the QWEST Cable shall
\nbe done by Service Provider expeditiously. Service Recipient agrees
\nthat WORLDCOM shall be in control of any restoration scene involving
\nthe QWEST Conduit. Unscheduled Maintenance shall consist of:<\/p>\n
(i) “Emergency Unscheduled Maintenance” in response to
\nan alarm identification by Service Provider’s NCC (as defined in
\nSection 1.4 below), notification by Service Recipient or notification
\nby any third party of any failure, interruption or impairment in the
\noperation of the QWEST System or QWEST Conduit, as the case may be, or
\nany event imminently likely to cause the failure, interruption or
\nimpairment in the operation of the QWEST System or the QWEST Conduit,
\nas the case may be.<\/p>\n
(ii) “Non-Emergency Unscheduled Maintenance” in response
\nto any potential service-affecting situation to prevent any failure,
\ninterruption or impairment in the operation of the QWEST System or
\nQWEST Conduit, as the case may be.<\/p>\n
Service Recipient shall immediately report the need for Unscheduled
\nMaintenance to Service Provider in accordance with procedures
\npromulgated by Service Provider from time to time. Service Provider
\nwill log the time of Service Recipient s report, verify the problem
\nand will dispatch personnel as early as possible to take corrective
\naction.<\/p>\n
1.3 It is understood that Service Provider’s maintenance and
\nrepair duties under this Agreement shall not include maintenance of
\nService Recipient’s electronics, nor do maintenance and repair duties
\ninclude replacement of equipment, materials or facilities. The
\nmaintenance of electronics and the cost of replacement of equipment,
\nmaterials and facilities shall be borne by Service Recipient.<\/p>\n
1.4 Service Provider shall operate and maintain a Network Control
\nCenter (“NCC”) staffed twenty-four (24) hours a day, seven (7) days a
\nweek by trained and qualified personnel. Service Provider’s
\nmaintenance employees shall be available for dispatch twenty-four (24)
\nhours a day, seven (7) days a week. Service Provider will use
\nreasonable efforts to have its first maintenance employee at the site
\nrequiring Emergency Unscheduled Maintenance activity within<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
hours after the time Service Provider becomes aware of an event
\nrequiring Emergency Unscheduled Maintenance. Service Provider shall
\nmaintain a toll-free telephone number to contact personnel at the NCC.
\nService Provider’s NCC personnel shall dispatch maintenance and repair
\npersonnel along the system to handle and repair problems detected in
\nthe QWEST System or QWEST Conduit, as the case may be, (i) through the
\nNCC’s remote surveillance equipment, (ii) through the Service
\nRecipient’s remote surveillance equipment and upon notification by
\nService Recipient to Service Provider, or (iii) upon notification by a
\nthird party.<\/p>\n
1.5 Service Recipient shall utilize an Operations Escalation List,
\nas updated from time to time to report and seek immediate initial
\nredress of exceptions noted in the performance of Service Provider in
\nmeeting maintenance service objectives.<\/p>\n
1.6 Service Recipient will, as necessary, arrange for unescorted
\naccess for Service Provider to all sites of the QWEST System or the
\nQWEST Conduit, as the case may be, subject to applicable contractual,
\nunderlying, real property and other third-party limitations and
\nrestrictions.<\/p>\n
1.7 In performing its services hereunder, Service Provider shall
\ntake workmanlike care to prevent impairment to the signal continuity
\nand performance of the QWEST System or QWEST Conduit, as the case may
\nbe. The precautions to be taken by Service Provider shall include
\nnotification to Service Recipient. In addition, Service Provider
\nshall reasonably cooperate with Service Recipient in sharing
\ninformation and analyzing the disturbances regarding the Cable or the
\nQWEST Cable, as the case may be, and\/or fibers. In the event that any
\nScheduled or Unscheduled Maintenance hereunder requires a traffic roll
\nor reconfiguration involving cable, fiber, electronic equipment, or
\nregeneration or other facilities of the Service Recipient, then
\nService Recipient shall, at Service Provider’s reasonable request,
\nmake such personnel of Service Recipient available as may be necessary
\nin order to accomplish such maintenance, which personnel shall
\ncoordinate and cooperate with Service Provider in performing such
\nmaintenance as required of Service Provider hereunder.<\/p>\n
1.8 Service Provider shall use its best effort to notify Service
\nRecipient ten (10) days prior to the date of any Scheduled
\nMaintenance. In the event that Scheduled Maintenance is canceled or
\ndelayed for whatever reason as previously notified, Service Provider
\nshall notify Service Recipient at Service Provider’s earliest
\nopportunity, and will comply with the provisions of the previous
\nsentence to reschedule any delayed activity.<\/p>\n
ARTICLE II.<\/p>\n
FACILITIES<\/p>\n
2.1 Service Provider shall maintain Segment(s) in a manner which
\nwill permit normal operation of the equipment associated with each
\nSegment.<\/p>\n
2.2 Service Provider shall perform appropriate Scheduled
\nMaintenance on the Cable and QWEST Cable in accordance with Service
\nProvider’s then current preventative maintenance procedures, which
\nshall not substantially deviate from industry practice.<\/p>\n
2.3 Service Recipient will perform all maintenance on Service
\nRecipient equipment.<\/p>\n
2.4 In no event shall Service Recipient attempt to open the
\npipeline or other facility in which the QWEST Conduit is encased.<\/p>\n
ARTICLE III.<\/p>\n
CABLE\/FIBERS<\/p>\n
3.1 Subject to the provisions of Section 3.2 hereof, Service
\nProvider shall maintain the Cable and the QWEST Cable, as the case may
\nbe, in good and operable condition and shall repair the Cable and
\nQWEST Cable, as the case may be, in a workmanlike manner pursuant to
\nSection 3.4 hereof.<\/p>\n
3.2 Service Provider shall have qualified representatives on site
\nany time Service Provider has knowledge that another person or entity
\nis crossing the Cable or QWEST Cable, as the case may be, or digging
\nwithin five (5) feet of the Cable or QWEST Cable, as the case may be.<\/p>\n
3.2 Service Provider maintenance employees shall be responsible
\nfor correcting or repairing cable discontinuity or damage, including
\nbut not limited to, Emergency Unscheduled Maintenance of the Cable or
\nQWEST Cable, as the case may be. Service Provider shall use
\nreasonable efforts to repair cable traffic-affecting discontinuity
\nwithin four (4) hours after the Service Provider maintenance
\nemployee’s arrival at the problem site. Service Provider shall
\nmaintain sufficient capability to teleconference with Service
\nRecipient during an Emergency Unscheduled Maintenance in order to
\nprovide continuous communication. Within twenty-four (24) hours after
\ncompletion of an Emergency Unscheduled Maintenance, Service Provider
\nshall commence its planning for permanent repair, shall notify Service
\nRecipient of such plans, and shall implement such permanent repair
\nwithin an appropriate time thereafter. Restoration of open fibers on
\nfiber strands not immediately required for service shall be completed
\non a mutually-agreed-upon schedule. If the fiber is required for
\nimmediate service, the repair shall be scheduled for the next
\navailable Planned Service Work Period (PSWP) weekend.<\/p>\n
3.4 Service Provider shall comply with the Splicing Specifications
\nas provided in Exhibit D to the IRU Agreement. Service Provider shall
\nprovide to Service Recipient any modifications to these Specifications
\nfor Service Recipient’s approval, which shall not be unreasonably
\nwithheld.<\/p>\n
3.5 Service Provider’s representatives that are responsible for
\ninitial restoration of a cut cable shall carry on their vehicles the
\nappropriate equipment to be able to quickly put the cut cable back
\ntogether using a temporary splice. The objective is to get the cut
\ncable back in an operating condition in as little time as possible.
\nService Provider shall also maintain an inventory of spare cable in
\nstorage facilities supplied and maintained by Service Provider at
\nstrategic locations to facilitate timely restoration; provided that
\nsuch inventory of cable shall be as provided on cable reel trailers by
\nQWEST to the Service Provider at QWEST’s initial cost, subject to
\nsubsequent reimbursement to QWEST to the extent that the cost of such
\nfiber is allocated to other Interest Holders (as that term is defined
\nin Section 7.2 below) in connection with the allocation of the Costs
\nassociated with Unscheduled Maintenance pursuant to Section 7.2.<\/p>\n
ARTICLE IV.<\/p>\n
PLANNED SERVICE WORK PERIOD (PSWP)<\/p>\n
4.1 Scheduled Maintenance which is reasonably expected to produce
\nany signal discontinuity must be coordinated between the parties.
\nGenerally, this work should be scheduled after midnight and before
\n6:00 a.m. local time. Major system work such as fiber rolls and hot
\ncuts will be scheduled for PSWP weekends. A calendar showing approved
\nPSWP weekends will be agreed upon in the last quarter of every year
\nfor the year to come. The intent is to avoid jeopardy work on the
\nfirst and last weekends of the month and high traffic holidays.<\/p>\n
ARTICLE V.<\/p>\n
RESTORATION<\/p>\n
5.1 Service Provider shall use its best efforts to respond to any
\ninterruption of service or a failure of the fibers to perform in
\naccordance with the specifications in Exhibit D (in any event, an
\n“Outage”) as quickly as possible in accordance with the procedures set
\nforth herein. In the event the Outage is not cured within twelve (12)
\nhours, Emergency Unscheduled Maintenance may be performed by Service
\nRecipient (“Service Recipient Emergency Unscheduled Maintenance”),
\nprovided that the parties have agreed in writing prior to such Outage
\nas to the emergency operational procedures, notifications and other
\nlimitations applicable to such Service Recipient Emergency Unscheduled
\nMaintenance. The written agreement regarding Service Recipient
\nUnscheduled Emergency Maintenance shall provide, among such other
\nterms as the parties may agree upon, that (i) Service Recipient may
\naccess any part of the QWEST System or QWEST Conduit, as the case may
\nbe, to perform such service subject to underlying real property or
\nother contractual rights applicable to any such location; (ii) in the
\nevent Service Recipient requires Service Provider personnel to unlock
\nany facility, Service Provider shall cooperate fully with Service
\nRecipient to allow Service Recipient access; and (iii) in those parts
\nof the QWEST System or QWEST Conduit, as the case may be, that Service
\nRecipient does not require Service Provider personnel to enter Service
\nProvider facilities, Service Recipient shall provide Service Provider
\nwith oral notification of those parts of the QWEST System or QWEST
\nConduit, as the case may be, that were entered as soon as possible.
\nService Recipient shall only use the preceding rights to enter the
\nQWEST System or QWEST Conduit, as the case may be, to the extent
\nnecessary for the emergency situation and in a manner consistent with
\nthe written agreement of the parties pertaining thereto. Service
\nProvider shall reimburse Service Recipient its Costs, as defined in
\nSection 7.3 ) hereof, of providing such Service Recipient Emergency
\nUnscheduled Maintenance. Service Recipient shall provide supporting
\ndocumentation for such Costs.<\/p>\n
5.2 (a) When restoring a cut Cable in the QWEST System, the
\nparties agree to work together to restore all traffic as quickly as
\npossible. Service Provider, immediately upon arriving on the site of
\nthe cut, shall determine the course of action to be taken to restore
\nthe Cable and shall begin restoration efforts. Service Provider shall
\ninitially splice the lit fibers in a buffer tube of its choice. Once
\ncontinuity is established in such lit fibers allowing transmission
\nsystems to come back on line, Service Provider shall then begin
\nsplicing a buffer tube chosen by Service Recipient to restore all lit
\nfibers in such buffer tube. Thereafter, Service Provider will
\nalternate this process between Service Provider and Service Recipient
\nchosen buffer tubes until all lit fibers in all buffer tubes are
\nspliced and all traffic restored.<\/p>\n
(b) When working on the WORLDCOM Conduit System, Service
\nProvider immediately upon arriving on the site of the cut shall
\ndetermine the course of action to be taken to restore the cables
\n(including the QWEST Cable) therein and shall begin restoration
\nefforts. Service Provider will lay out the restoration cables and
\nshall initially splice the lit fibers in the Service Provider’s
\ncables. Once all of Service Provider’s lit fibers are restored,
\nService Provider will immediately begin splicing and restoration of
\nthe lit fibers in the QWEST Cable: provided that throughout the
\nrestoration process QWEST shall be permitted to participate in the
\nrestoration of the QWEST Cable as provided in Section 1.2(b).<\/p>\n
5.3 Emergency restoration splicing has as its goal to get service
\nup as quickly as possible. This requires the use of some type of
\nmechanical splice, such as the “3M Fiber Lock” to complete the
\ntemporary restoration. Permanent restorations will take place as soon
\nas possible after the temporary splice is complete.<\/p>\n
5.4 If at any time it becomes apparent that an Outage is going to
\nextend beyond eight (8) hours, the corresponding Vice President of
\neach company will work together to determine a plan to restore the
\nCable or QWEST Cable, as the case may be.<\/p>\n
5.5 Subject to the provisions of Article XXVIII of the IRU
\nAgreement, in the event all or any part of the QWEST System or QWEST
\nConduit, as the case may be, shall require replacement as a result of
\nthe negligent acts or omissions of a party (without contribution to
\nsuch negligence by the other party) or intentional misconduct of
\neither party, its agents or subcontractors. Such replacement shall be
\nmade by Service Provider at the earliest possible time, at the sole
\ncost of the party hereto which is responsible, directly or by
\ndelegation, for such negligence or intentional misconduct. In the
\nevent all or any part of the QWEST System or QWEST Conduit, as the
\ncase may be, shall at any time during the term be found to have not
\nbeen designed, built, installed or constructed in material accordance
\nwith the provisions of the IRU Agreement and Service Recipient
\nreasonably demonstrates that such noncompliance materially and
\nadversely affects the expected economic life of or operating
\nspecifications of the fibers, then Service Provider shall within
\nninety (90) days after such discovery, at its sole cost and expense,
\ncorrect such defect.<\/p>\n
ARTICLE VI.<\/p>\n
SUBCONTRACTING<\/p>\n
6.1 Service Provider may subcontract for maintenance and
\nrestoration services hereunder. Notwithstanding any other provisions
\nof this Agreement, Service Provider shall require the subcontractor(s)
\nto meet maintenance and repair standards for the QWEST System or QWEST
\nConduit, as the case may be, which shall be at least as high as those
\nstandards utilized by Service Provider for the maintenance and repair
\nof other portions of its communications systems. The use of any such
\nsubcontractor shall not relieve Service Provider of any of its
\nobligations hereunder. In the event Service Provider determines to
\nsubcontract for a period exceeding sixty (60) days any substantial
\nportion of its maintenance or restoration work on the QWEST System or
\nQWEST Conduit, as the case may be, it shall give Service Recipient the
\nopportunity to perform such work if Service Recipient agrees to match
\nthe rates offered for such work by a mutually approved qualified
\nvendor.<\/p>\n
ARTICLE VII.<\/p>\n
FEES AND COSTS<\/p>\n
7.1. Scheduled Maintenance Fees. Subsequent to the Acceptance Date
\nfor each Segment, Service Recipient shall pay to Service Provider for
\nperforming Scheduled Maintenance an annual fee of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for each of Segments 1, 2, 2A and 3 during the Initial
\nTerm. Subject to Sections 1.2 and 1.3 of the IRU Agreement and
\nsubsequent to the Acceptance Date for each Segment, Service Recipient
\nshall pay to Service Provider for performing Scheduled Maintenance an
\nannual fee of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for each of Segments 4, 6 and 7 during the Initial
\nTerm. Subject to Section 1.2 of the IRU Agreement and subsequent to
\nthe Acceptance Date for each Segment, Service Recipient shall pay to
\nService Provider for performing Scheduled Maintenance an annual fee of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for Segment 5 during the Initial Term. Subject to
\nSection 5.1 of the IRU Agreement and subsequent to the QWEST Conduit
\nAcceptance Date, Service Recipient shall pay to Service Provider for
\nperforming Scheduled Maintenance an annual fee of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for the QWEST Conduit. A quarter of the first such
\nfees for Segments 1 through 7 hereunder will be due and payable thirty
\n(30) days after the Acceptance Date for each Segment. A quarter of
\nthe first such fee for the QWEST Conduit will be due thirty (30) days
\nafter the QWEST Conduit Acceptance Date. Thereafter, one quarter of
\neach such fee shall be due quarterly during the Initial Tenn. All
\nfees shall be paid by Service Recipient within thirty (30) days of
\nreceipt of invoice therefor. Fees hereunder may be adjusted annually,
\nat Service Provider’s sole discretion, beginning with the first
\nanniversary date, for increases in the United States Bureau of Labor
\nStatistics, CPI-U All Services Index (unadjusted), as originally
\npublished. Said adjustment shall be hereinafter referred to as “CPI-U
\nAdjustment”. Each fee, as adjusted by the CPI-U Adjustment, shall be
\nequal to the product of the fee specified herein multiplied by the
\nfraction (i) whose numerator is the CPI-U All Services for March of
\nthe previous calendar year for which the adjustment to the fee is
\nbeing made, and (ii) whose denominator is the CPI-U All Services for
\nMarch of the preceding year. The adjusted fee shall remain in effect
\nuntil the next annual fee is due, when a new adjusted fee fixed
\npursuant to this provision shall become effective. In no event shall
\nthe amount of the fee as adjusted pursuant to this provision be less
\nthan the amount of fee in effect for the immediately-preceding year.
\nThe parties agree that the Index for March 1995 is defined as 151.4.
\nIn the event that the Bureau of Labor Statistics (or any successor
\norganization) changes the current base of the CPI-U from
\n1982-84 = 100, the calculation of a fee under this provision shall be
\nadjusted to ensure that Service Provider receives the same amount as
\nit would have had, had the base not been changed. In the event the
\nBureau of Labor Statistics or any successor organization no longer
\npublishes the CPI-U, QWEST shall, subject to WORLDCOM’s agreement
\n(which shall not be unreasonably withheld), designate the statistical
\nindex it deems most appropriate for calculation of adjustments to a
\nfee and, from the date the CPI-U ceased to be published, such index
\nshall be used to make adjustments in a fee under this provision.<\/p>\n
7.2 Unscheduled Maintenance Fees If the aggregate amount of the
\nCosts of Unscheduled Maintenance required as a result of any single
\nevent or multiple, closely related events is less than<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
, such Costs shall be borne by Service Provider. For any other
\nUnscheduled Maintenance, the Costs thereof shall be allocated among
\nthe various owners and holders of an IRU or equivalent interest (each,
\nan “Interest Holder”) in the conduit, cable and\/or fibers affected
\nthereby as follows: (i) Costs of Unscheduled Maintenance solely to or
\naffecting a conduit or cable which houses fibers of a single Interest
\nHolder shall be borne 100% by such Interest Holder; (ii) Costs of
\nUnscheduled Maintenance to or affecting a conduit which houses
\nmultiple innerduct conduits, not including such Costs attributable to
\nthe repair or replacement of fiber therein, shall be borne
\nproportionately by the Interest Holders in each of the affected
\ninnerduct conduits based on the ratio that such affected conduit bears
\nto the total number of affected innerduct conduits, and (iii) Costs of
\nUnscheduled Maintenance attributable to the repair or replacement of
\nfiber, including the acquisition, installation, inspection, testing
\nand splicing thereof, shall be borne proportionately by the Interest
\nHolders in the affected fiber, based on the ratio that the number of
\naffected fibers subject to the interest of each such Interest Holder
\nbears to the total number of affected fibers. All such Costs which
\nare allocated to Service Recipient pursuant to the foregoing
\nprovisions shall be the responsibility of and paid by Service
\nRecipient within thirty (30) days after receipt from Service Provider
\nof an invoice therefor.<\/p>\n
7.3 Costs. “Costs” means the actual, direct costs paid or payable
\nin accordance with the established accounting procedures generally
\nused by WORLDCOM or QWEST, as the case may be, and which it utilizes
\nin billing third parties for reimbursable projects, which costs shall
\ninclude, without limitation, the following: (i) labor costs,
\nincluding wages and salaries, and benefits and overhead allocable to
\nsuch labor costs (overhead allocation percentage shall not exceed the
\nlesser of (x) the percentage QWEST or WORLDCOM, as applicable,
\nallocates to its internal projects or (<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
, and (ii) other direct costs and out-of-pocket expenses on a pass-
\nthrough basis (e.g., equipment, materials, supplies, contract
\nservices, etc.).<\/p>\n
ARTICLE VIII.<\/p>\n
INDEMNIFICATION<\/p>\n
8.1 Subject to the provisions of Article IX, QWEST hereby releases
\nand agrees to indemnify, defend, protect and hold harmless WORLDCOM,
\nits employees, officers, directors, agents, shareholders and
\naffiliates. from and against and assumes liability for:<\/p>\n
(a) Any injury, loss or damage to any person, tangible
\nproperty or facilities of any person or entity (including reasonable
\nattorneys’ fees and costs), to the extent arising out of or resulting
\nfrom the acts or omissions, negligent or otherwise, of QWEST, its
\nofficers, employees, servants, affiliates, agents, contractors,
\nlicensees, invitees or vendors in connection with its performance
\nunder this Agreement;<\/p>\n
(b) Any claims, liabilities or damages arising out of any
\nviolation by QWEST of regulations, rules, statutes or court orders of
\nany local, state or federal governmental agency, court or body in
\nconnection with its performance under this Agreement; and<\/p>\n
(c) Any claims, liabilities or damages arising out of any
\ninterference with or infringement of the rights of any third party as
\na result of WORLDCOM’s use of the WORLDCOM IRU and the WORLDCOM Fibers
\nin accordance with the provisions of this Agreement.<\/p>\n
8.2 Subject to the provisions of Article IX, WORLDCOM hereby
\nreleases and agrees to indemnify, defend, protect and hold harmless
\nQWEST, its employees, officers, directors, agents, shareholders and
\naffiliates, from and against, and assumes liability for:<\/p>\n
(a) Any injury, loss or damage to any person, tangible
\nproperty or facilities of any person or entity (including reasonable
\nattorneys’ fees and costs), to the extent arising out of or resulting
\nfrom the acts or omissions, negligent or otherwise, of WORLDCOM, its
\nofficers, employees, servants, affiliates, agents, contractors,
\nlicensees, invitees or vendors in connection with its performance
\nunder this Agreement;<\/p>\n
(b) Any claims, liabilities or damages arising out of any
\nviolation by WORLDCOM or regulations, rules, statutes or court orders
\nof any local, state or federal governmental agency, court or body in
\nconnection with its performance under this Agreement; and<\/p>\n
(c) Any claims, liabilities or damages arising out of any
\ninterference with or infringement of the rights of any third party as
\na result of QWEST’s use of the QWEST Conduit accordance with the
\nprovisions of this Agreement.<\/p>\n
8.3 The parties hereby expressly recognize and agree that each
\nparty’s said obligation to indemnify, defend, protect and save the
\nother harmless is not a material obligation to the continuing
\nperformance of the parties’ other obligations, if any, hereunder. In
\nthe event that a party shall fail for any reason to so indemnify,
\ndefend, protect and save the other harmless, the injured party hereby
\nexpressly recognizes that its sole remedy in such event shall be the
\nright to bring an arbitration proceeding pursuant to the terms of this
\nAgreement against the other party for its damages as a result of the
\nother party’s said failure to indemnify, defend, protect and save
\nharmless. These obligations shall survive the expiration or
\ntermination of this Agreement.<\/p>\n
8.4 Nothing contained herein shall operate as a limitation on the
\nright of either party hereto to bring an action for damages against
\nany third party, including indirect, special or consequential damages,
\nbased on any acts or omissions of such third party as such acts or
\nomissions may affect the construction, operation or use of the
\nWORLDCOM Fibers or the QWEST System or the WORLDCOM Conduit System or
\nthe QWEST Conduit, as the case may be; provided, however, that each
\nparty hereto shall assign such rights or claims, execute such
\ndocuments and do whatever else may be reasonably necessary to enable
\nthe other party to pursue any such action against such third party.<\/p>\n
ARTICLE IX.<\/p>\n
LIMITATION OF LIABILITY<\/p>\n
9.1 Notwithstanding any provision of this Agreement to the
\ncontrary, in no event shall either party be liable to the other party
\nfor any special, incidental, indirect, punitive or consequential
\ndamages, whether foreseeable or not, arising out, of or in connection
\nwith transmission interruptions or problems, or any interruption or
\ndegradation of service, including, but not limited to, damage or loss
\nof property or equipment, loss of profits or revenue, cost of capital,
\ncost of replacement services, or claims of customers, whether
\noccasioned by any construction, reconstruction, relocation, repair or
\nmaintenance performed by, or failed to be performed by the other party
\nor any other cause whatsoever, including, without limitation, breach
\nof contract, breach of warranty, negligence or strict liability all
\nclaims for which damages are hereby specifically waived.<\/p>\n
ARTICLE X<\/p>\n
NOTICE<\/p>\n
10.1 Except as provided in the Operations Escalation List, all
\nnotices and communications concerning this Agreement shall be
\naddressed to the other party as follows:<\/p>\n
If to QWEST: QWEST Communications Corporation
\n ATTENTION: President
\n 555 Seventeenth Street
\n Denver, Colorado 80202
\n Telephone No.: (303) 291-1400
\n Facsimile No.: (303) 291-1724<\/p>\n
with a copy to: QWEST Communications Corporation
\n ATTENTION: General Counsel
\n 555 Seventeenth Street
\n Denver, Colorado 80202
\n Telephone No,: (303) 291-1400
\n Facsimile No.: (303) 291-1724<\/p>\n
If to WORLDCOM: WORLDCOM, Inc.
\n c\/o WORLDCOM Network Services, Inc.
\n ATTENTION: Vice President – Network
\n Operations
\n One Williams Center
\n Tulsa, Oklahoma 74172
\n Facsimile No.: (918) 590-5598<\/p>\n
and to: WORLDCOM Network Services, Inc.
\n ATTENTION: Contract Administration
\n One Williams Center
\n Tulsa, Oklahoma 74172
\n Facsimile No.: (918) 590-3293<\/p>\n
and, if claiming
\n an event of default,
\n with a copy to: Michael D. Cooke
\n Hall, Estill, Hardwick, Gable, Golden & Nelson
\n 310 S. Boston Avenue, Suite 400
\n Tulsa, Oklahoma 74105
\n Facsimile No.: (918) 594-0505<\/p>\n
or at such other address as may be designated in writing to the other
\nparty.<\/p>\n
10.2 Unless otherwise provided herein, notices shall be hand
\ndelivered, sent by registered or certified U.S. Mail, postage prepaid,
\nor by commercial overnight delivery service, or transmitted by
\nfacsimile, and shall be deemed served or delivered to the addressee or
\nits office when received at the address for notice specified above
\nwhen hand delivered, upon confirmation of sending when sent by fax, on
\nthe day after being sent when sent by overnight delivery services or
\nthree (3) days after deposit in the mail when sent by U.S. mail.<\/p>\n
ARTICLE XI.<\/p>\n
CONFIDENTIALITY<\/p>\n
11.1 If the parties to this Agreement have entered into (or later
\nenter into) a Confidentiality Agreement, the terms of such an
\nagreement shall control and Section 11.1 of this Article shall not
\napply; however, if any such Confidentiality Agreement expires or is no
\nlonger effective at any time during the Term of this Agreement, this
\nSection 11.1 shall be in effect during those periods.<\/p>\n
11.2 In the absence of a separate Confidentiality Agreement
\nbetween the parties, if either party provides confidential information
\nto the other in writing and identified as such, the receiving party
\nshall protect the confidential information from disclosure to third
\nparties with the same degree of care accorded its own confidential and
\nproprietary information. Neither party shall be required to hold
\nconfidential any information which (i) becomes publicly available
\nother than through the recipient; (ii) is required to be disclosed by
\na governmental or judicial order, rule or regulation; (iii) is
\nindependently developed by the disclosing party; or (iv) becomes
\navailable to the disclosing party without restriction from a third
\nparty. These obligations shall survive expiration or termination of
\nthis Agreement.<\/p>\n
11.3 Notwithstanding Sections 11.1 and 11.2 of this Article,
\nconfidential information shall not include information disclosed by
\nthe receiving party as required by applicable law or regulation;
\nprovided that the information disclosed is limited to the existence
\nand general nature of the relationship between the parties, including,
\nas required, the scope, approximate revenues, purposes and
\nexpectations related to such relationship and a description of any
\ndisputes relating thereto. Notwithstanding the foregoing, this
\nAgreement may be provided to any governmental agency or court of
\ncompetent jurisdiction to the extent required by applicable law.<\/p>\n
ARTICLE XII.<\/p>\n
FORCE MAJEURE<\/p>\n
12.1 Neither party shall be in default under this Agreement to
\nthe extent that any delay in such party’s performance is caused by any
\nof the following conditions, and such party’s performance shall be
\nexcused and extended during the period of any such delay: act of God;
\nfire; flood; fiber, cable or other material shortages or
\nunavailability or other delay in delivery not resulting from the
\nresponsible party’s failure to timely place orders therefor (it being
\nexpressly acknowledged that the fiber optic cable that is being
\nacquired for and installed in the QWEST System and that will include
\nthe WORLDCOM Fiber must include higher fiber counts than that
\nnecessary solely for the WORLDCOM Fiber in order to permit completion
\nof the entire QWEST System), lack of delay in transportation”
\ngovernment codes, ordinances, laws, rules, regulations or restrictions
\n(collectively, “Regulations”) (but not to the extent the delay caused
\nby such Regulations could be reasonably avoided by rerouting the
\nCable); war or civil disorder; failure of a third party to grant a
\nrequired permit, easement or other required authorization for use of
\nthe intended right-of-way (provided that such required authorization
\nwas sought and pursued on a timely and reasonable best efforts basis)
\nor any other cause beyond the commercially-reasonable control of such
\nparty, provided that the party claiming relief under this Article
\nshall promptly notify the other in writing of the existence of the
\nevent relied on and the cessation or termination of said event. The
\nparty claiming relief under this Article shall exercise reasonable
\nefforts to minimize the time for any such delay.<\/p>\n
ARTICLE XIII.<\/p>\n
ARBITRATION<\/p>\n
13.1 Any dispute or disagreement arising between QWEST and
\nWORLDCOM in connection with this Agreement which is not settled to the
\nmutual satisfaction of QWEST and WORLDCOM within thirty (30) days from
\nthe date that either party informs the other in writing that such
\ndispute or disagreement exists, shall be settled by arbitration in
\nKansas City, Missouri, in accordance with the Commercial Arbitration
\nRules of the American Arbitration Association in effect on the date
\nthat such notice is given. If the parties are unable to agree on a
\nsingle arbitrator within fifteen (15) days, each party shall select an
\narbitrator and the two (2) arbitrators shall mutually select a third
\narbitrator, the three of whom shall serve as an arbitration panel.
\nThe decision of the arbitrator(s) shall be final and binding upon the
\nparties and shall include written findings of law and fact, and
\njudgment may be obtained thereon by either party in a court of
\ncompetent Jurisdiction. Each party shall bear the cost of preparing
\nand presenting its own case. The cost of the arbitration, including
\nthe fees and expenses of the arbitrator(s), shall be shared equally by
\nthe parties hereto unless the award otherwise provides.<\/p>\n
13.2 The obligation herein to arbitrate shall not be binding upon
\nany party with respect to requests for preliminary injunctions,
\ntemporary restraining orders or other similar temporary procedures in
\na court of competent jurisdiction to obtain interim relief when deemed
\nnecessary by such court to preserve the status quo or prevent
\nirreparable injury pending resolution by arbitration of the actual
\ndispute. It is not the intention of the parties that such injunctive
\nprocedures shall be in lieu of, or cause substantial delay to, any
\narbitration proceeding commenced under Section 13.1 above.<\/p>\n
ARTICLE XIV.<\/p>\n
WAIVER<\/p>\n
14.1 The failure of either party hereto to enforce any of the
\nprovisions of this Agreement, or the waiver thereof in any instance,
\nshall not be construed as a general waiver or relinquishment on its
\npart of any such provision, but the same shall nevertheless be and
\nremain in full force and effect.<\/p>\n
ARTICLE XV.<\/p>\n
ASSIGNMENT<\/p>\n
15.1 Except as provided in Section 6.1, QWEST shall not assign,
\nencumber or otherwise transfer this Agreement or its rights or
\nobligations hereunder to any other party without the prior written
\nconsent of WORLDCOM, which consent will not be unreasonably withheld
\nor delayed. QWEST shall have the right, without WORLDCOM’s consent,
\nto assign or otherwise transfer this Agreement (i) as collateral to
\nany institutional lender to QWEST subject to the prior rights and
\nobligations of the parties hereunder, (ii) to any parent, subsidiary
\nor affiliate of QWEST, (iii) to any person, firm or corporation which
\nshall control, be under the control of or be under common control with
\nQWEST, or (iv) any corporation or other entity into which QWEST may be
\nmerged or consolidated or which purchases all or substantially all of
\nthe assets of QWEST; provided that the assignee or transferee in any
\nsuch circumstance shall continue to be subject to all of the
\nprovisions of this Agreement, including without limitation, this
\nSection 15.1; and provided further that, promptly following any such
\nassignment or transfer, QWEST shall give WORLDCOM written notice
\nidentifying the assignee or transferee; and provided further that any
\nsuch assignment or transfer shall be conditioned upon the
\ncorresponding assignment or transfer of QWEST’s rights and obligations
\nunder the IRU Agreement. In the event of any permitted partial
\nassignment of any rights hereunder, QWEST shall remain the sole point
\nof contact with WORLDCOM.<\/p>\n
15.2 Except as provided in 6.1, WORLDCOM shall not assign,
\nencumber or otherwise transfer this Agreement or its rights or
\nobligations hereunder to any other party without the prior written
\nconsent of QWEST, which consent will not be unreasonably withheld or
\ndelayed. WORLDCOM shall have the right, without QWEST’s consent, to
\nassign or otherwise transfer this Agreement (i) as collateral to any
\ninstitutional lender to WORLDCOM subject to the prior rights and
\nobligations of the parties hereunder, (ii) to any parent, subsidiary
\nor affiliate of WORLDCOM, (iii) to any person, firm or corporation
\nwhich shall control, be under the control of or be under common
\ncontrol with WORLDCOM, or (iv) any corporation into which WORLDCOM may
\nbe merged or consolidated or which purchases all or substantially all
\nof the assets of WORLDCOM; provided that the assignee or transferee in
\nany such circumstance shall continue to be subject to all of the
\nprovisions of this Agreement, including without limitation this
\nSection 15.2; and provided further that, promptly following any such
\nassignment or transfer, WORLDCOM shall give written notice identifying
\nthe assignee or transferee; and provided further that any such
\nassignment or transfer shall be conditioned upon the corresponding
\nassignment or transfer of WORLDCOM’s rights and obligations under the
\nIRU Agreement. In the event of any permitted partial assignment of
\nany rights hereunder, WORLDCOM shall remain the sole point of contact
\nwith QWEST.<\/p>\n
15.3 This Agreement and each of the parties’ respective rights
\nand obligations under this Agreement shall be binding upon and shall
\ninure to the benefit of the parties hereto and each of their
\nrespective permitted successors and assigns.<\/p>\n
ARTICLE XVI.<\/p>\n
GOVERNING LAW<\/p>\n
16.1 This Agreement shall be governed by, and construed in
\naccordance with the domestic laws of the State of Colorado, without
\nreference to its choice of law principles.<\/p>\n
ARTICLE XVII.<\/p>\n
RULES OF CONSTRUCTION<\/p>\n
17.1 The captions or headings in this Agreement are strictly for
\nconvenience and shall not be considered in interpreting this Agreement
\nor as amplifying or limiting any of its content. Words in this
\nAgreement which import the singular connotation shall be interpreted
\nas plural, and words which import the plural connotation shall be
\ninterpreted as singular, as the identity of the parties or objects
\nreferred to may require.<\/p>\n
17.2 Unless expressly defined herein, words having well known
\ntechnical or trade meanings shall be so construed. All listing of
\nitems shall not be taken to be exclusive, but shall include other
\nitems, whether similar or dissimilar to those listed, as the context
\nreasonably requires.<\/p>\n
17.3 Except as set forth to the contrary herein, any right or
\nremedy of WORLDCOM or QWEST shall be cumulative and without prejudice
\nto any other right or remedy, whether contained herein or not.<\/p>\n
17.4 Nothing in this Agreement is intended to provide any legal
\nrights to anyone not an executing party of this Agreement.<\/p>\n
17.5 This Agreement has been fully negotiated between and jointly
\ndrafted by the parties.<\/p>\n
17.6 In the event of a conflict between the provisions of this
\nAgreement and those of any Exhibit, the provisions of this Agreement
\nshall prevail and such Exhibits shall be corrected accordingly.<\/p>\n
17.7 All actions, activities, consents, approvals and other
\nundertakings of the parties in this Agreement shall be performed in a
\nreasonable and timely manner, it being expressly acknowledged and
\nunderstood that time is of the essence in the performance of
\nobligations required to be performed by a date expressly specified
\nherein. Except as specifically set forth herein, for the purpose of
\nthis Article the normal standards of performance within the
\ntelecommunications industry in the relevant market shall be the
\nmeasure of whether a party’s performance is reasonable and timely.<\/p>\n
ARTICLE XVIII.<\/p>\n
ENTIRE AGREEMENT; AMENDMENT<\/p>\n
18.1 This Agreement, together with the IRU Agreement, any
\nRegeneration Sharing Agreement, and any Confidentiality Agreement
\nentered into in connection herewith, constitutes the entire and final
\nagreement and understanding between the parties with respect to the
\nsubject matter hereof and supersedes all prior agreements relating to
\nthe subject matter hereof (including, without limitation that certain
\nletter agreement between the parties dated February 2, 1996) which are
\nof no further force or effect. The Exhibits referred to herein are
\nintegral parts hereof and are hereby made a part of this Agreement.
\nThis Agreement may only be modified or supplemented by an instrument
\nin writing executed by a duly authorized representative of each party.<\/p>\n
ARTICLE XIX.<\/p>\n
NO PERSONAL LIABILITY<\/p>\n
19.1 Each action or claim against any party arising under or
\nrelating to this Agreement shall be made only against such party as a
\ncorporation and any liability relating thereto shall be enforceable
\nonly against the corporate assets of such party. No party shall seek
\nto pierce the corporate veil or otherwise seek to impose any liability
\nrelating to, or arising from, this Agreement against any shareholder,
\nemployee, officer or director of the other party. Each of such
\npersons is an intended beneficiary of the mutual promises set forth in
\nthis Article and shall be entitled to enforce the obligations of this
\nArticle.<\/p>\n
ARTICLE XX.<\/p>\n
CONFLICTS OF INTEREST<\/p>\n
20.1 Neither party shall use any funds received under this
\nAgreement for illegal purposes. Neither party shall pay any
\ncommission, fees or rebates to any employee of the other party, or
\nfavor any employee of such other party with gifts or entertainment of
\nsignificant cost or value intended to influence the actions of such
\nemployee in a manner inconsistent with that employee’s duty of loyalty
\nto its employer. If either party has reasonable cause to believe that
\none of the provisions in this Article has been violated, it, or its
\nrepresentative, may audit the relevant books and records of the other
\nparty for the sole purpose of establishing compliance with such
\nprovisions.<\/p>\n
ARTICLE XXI.<\/p>\n
RELATIONSHIP OF THE PARTIES<\/p>\n
21.1 The relationship between WORLDCOM and QWEST shall not be
\nthat of partners, agents or joint venturers for one another, and
\nnothing contained in this Agreement shall be deemed to constitute a
\npartnership or agency agreement between them for any purposes,
\nincluding but not limited to federal income tax purposes. WORLDCOM
\nand QWEST, in performing any of their obligations hereunder, shall be
\nindependent contractors or independent parties and shall discharge
\ntheir contractual obligations at their own risk.<\/p>\n
ARTICLE XXII.<\/p>\n
DEFAULT<\/p>\n
22.1 With respect to all payments required to be made by WORLDCOM
\nhereunder, WORLDCOM shall be in default hereunder if such payment is
\nnot paid on the date due and payable hereunder, and from and after
\nsuch date such unpaid amount shall bear interest until paid at a rate
\nequal to the rate set forth in Article XXIV. With respect to all non-
\npayment obligations, WORLDCOM shall be in default under this Agreement
\nthirty (30) days after QWEST shall have given WORLDCOM written notice
\nof such default unless WORLDCOM shall have cured such default or such
\ndefault is otherwise waived within such thirty (30) days; provided,
\nhowever, that where such default cannot reasonably be cured within
\nsuch thirty (30) day period, if WORLDCOM shall proceed promptly to
\ncure the same and prosecute such curing with due diligence, the time
\nfor curing such default shall be extended for such period of time as
\nmay be necessary to complete such curing. Events of default also
\nshall include, but not be limited to, the making by WORLDCOM of a
\ngeneral assignment for the benefit of its creditors, the filing of a
\nvoluntary petition in bankruptcy or the filing of a petition in
\nbankruptcy or other insolvency, protection against WORLDCOM which is
\nnot dismissed within ninety (90) days thereafter, or the filing by
\nWORLDCOM of any petition or answer seeking, consenting to, or
\nacquiescing in reorganization, arrangement, adjustment, composition,
\nliquidation, dissolution or similar relief. Any event of default by
\nWORLDCOM may be waived under the terms of this Agreement at QWEST’s
\noption. Upon the failure by WORLDCOM to timely cure any such default
\nafter notice thereof from QWEST, QWEST may (i) take such action as it
\ndetermines, in its sole discretion, to be necessary to correct the
\ndefault and (ii) pursue any legal remedies it may have under
\napplicable law or principles of equity relating to such breach.
\nNotwithstanding the above, if WORLDCOM certifies in good faith to
\nQWEST in writing that a default has been cured, such default shall be
\ndeemed to be cured unless QWEST otherwise notifies WORLDCOM in writing
\nwithin fifteen (15) days of receipt of such notice from WORLDCOM.<\/p>\n
22.2. With respect to all payments required to be made by
\nQWEST hereunder, QWEST shall be in default hereunder if such payment
\nis not paid on the date due and payable hereunder, and from and after
\nsuch date such unpaid amount shall bear interest until paid at a rate
\nequal to the rate set forth in Article XXIV. With respect to all non-
\npayment obligations, QWEST shall be in default under this Agreement
\nthirty (30) days after WORLDCOM shall have given QWEST written notice
\nof such default unless QWEST shall have cured such default or such
\ndefault is otherwise waived within such thirty (30) days; provided,
\nhowever, that where such default cannot reasonably be cured within
\nsuch thirty (30) day period, if QWEST shall proceed promptly to cure
\nthe same and prosecute such curing with due diligence, the time for
\ncuring such default shall be extended for such period of time as may
\nbe necessary to complete such curing. Events of default shall also
\ninclude, but not be limited to, the making by QWEST of a general
\nassignment for the benefit of its creditors, the filing of a voluntary
\npetition in bankruptcy or the filing of a petition in bankruptcy or
\nother insolvency protection against QWEST which is not dismissed
\nwithin ninety (90) days thereafter, or the filing by QWEST of any
\npetition or answer seeking, consenting to or acquiescing in
\nreorganization, arrangement, adjustment, composition, liquidation,
\ndissolution or similar relief. Any event of default by QWEST may be
\nwaived under the terms of this Agreement at WORLDCOM’s option. Upon
\nthe failure by QWEST to timely cure any such default after notice
\nthereof from WORLDCOM, WORLDCOM may (i) take such action as it
\ndetermines, in its sole discretion, to be necessary to correct the
\ndefault, and (ii) pursue any legal remedies it may have under
\napplicable law or principles of equity, relating to such breach.
\nNotwithstanding the above, if QWEST certifies in good faith to
\nWORLDCOM in writing that a default has been cured, such default shall
\nbe deemed to be cured unless WORLDCOM otherwise notifies QWEST in
\nwriting within fifteen (15) days of receipt of such notice from QWEST.<\/p>\n
ARTICLE XXII.<\/p>\n
TERM<\/p>\n
23.1 The initial term of this Agreement shall begin on the date
\nhereof and terminate on a date <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
years from the date hereof (the
\n“Initial Term”). This Agreement shall be renewable for three
\nsucceeding additional <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
year terms (each, an “Additional Term”) at
\nthe election of Service Recipient for the maintenance of each Segment
\nof the QWEST System or the QWEST Conduit, as the case may be, provided
\nby Service Provider hereunder. Any fees to be made under any such
\nAdditional Term shall be negotiated in good faith by both parties at
\nthe time of such renewal.<\/p>\n
23.2 If this Agreement expires or terminates prior to the end of
\nthe Term of the IRU Agreement with respect to the QWEST Conduit or the
\nQWEST System, the provisions of this Agreement relating to access by
\nQWEST to the QWEST Conduit, or by WORLDCOM to the QWEST System for
\npurposes of maintenance thereof, shall survive the expiration or
\ntermination hereof and continue to apply for the remaining Term of the
\nIRU Agreement with respect to the QWEST Conduit and the QWEST System,
\nrespectively.<\/p>\n
ARTICLE XXIV.<\/p>\n
LATE PAYMENTS<\/p>\n
24.1 In the event a party shall fail to make any payment under
\nthis Agreement when due, such amounts shall accrue interest, from the
\ndate such payment is due until paid, including accrued interest, at an
\nannual rate equal to<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
of the prime rate of interest published by The Wall Street Journal as
\nthe base rate on corporate loans posted by a percentage of the
\nnation’s largest banks on the date any such payment is due or, if
\nlower, the highest percentage allowed by law.<\/p>\n
ARTICLE XXV.<\/p>\n
SEVERABILITY<\/p>\n
25.1 If any term, covenant or condition contained herein shall,
\nto any extent, be invalid or unenforceable in any respect under the
\nlaws governing this Agreement, the remainder of this Agreement shall
\nnot be affected thereby and each term, covenant or condition of this
\nAgreement shall be valid and enforceable to the fullest extent
\npermitted by law.<\/p>\n
ARTICLE XXVI.<\/p>\n
THIRD PARTY WARRANTIES<\/p>\n
26.1 In the event any maintenance or repairs to the QWEST System
\nare required as a result of a breach of any warranty made by any
\nmanufacturers, contractors or vendors, QWEST, as applicable, shall
\npursue any remedies it may have against such manufacturers,
\ncontractors or vendors, and QWEST shall reimburse WORLDCOM’s costs for
\nany maintenance WORLDCOM has incurred as a result of any such breach
\nof warranty to the extent the manufacturer, contractor or vendor has
\npaid such costs. In the event any maintenance or repairs to the
\nWORLDCOM Conduit System are required as a result of a breach of any
\nwarranty made by any manufacturers, contractors or vendors, WORLDCOM,
\nas applicable, shall pursue any remedies it may have against such
\nmanufacturers, contractors or vendors. and WORLDCOM shall reimburse
\nQWEST’s costs for any maintenance QWEST has incurred as a result of
\nany such breach of warranty to the extent the manufacturer, contractor
\nor vendor has paid such costs.<\/p>\n
27.1 This Agreement may be executed in one or more counterparts,
\nall of which taken together shall constitute one and the same
\ninstrument.<\/p>\n
In confirmation of their consent and agreement to the terms and
\nconditions contained in this Maintenance Agreement and, intending to
\nbe legally bound hereby, the parties have executed this Maintenance
\nAgreement as of the date first above written.<\/p>\n
“QWEST”:<\/p>\n
QWEST COMMUNICATIONS CORPORATION, a
\n Delaware corporation<\/p>\n
By:
\n Name: Douglas H. Hanson
\n Title: President and Chief Executive
\n Officer<\/p>\n
“WORLDCOM”:<\/p>\n
WORLDCOM NETWORK SERVICES, INC., a
\n Delaware corporation<\/p>\n
By:
\n Name: Scott Sullivan
\n Title: Chief Financial Officer<\/p>\n
EXHIBIT J<\/p>\n
Contract Pricing\/Payment Schedule<\/p>\n
A. Allocated Segment Pricing (Segments 1, 2, 3, 4, 5 and 6)<\/p>\n
Distance Segment City Pairs Price<\/p>\n
269 miles Segment 1 Dallas-Houston $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
749 miles Segment 2 Denver-El Paso $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
871 miles Segment 3 Santa Clara –
\n Salt Lake City $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
1,889 miles Segments 1,2,3 $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
752 miles Segment 4 Oakland-Portland $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
691 miles Segment 5 Cleveland-Boston $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
182 miles Segment 6 Portland-Seattle $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
1,625 miles Segments 4,5,6 $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3,514 miles Segments 1,2,3,4,5,6 $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
B. Payment Schedule<\/p>\n
SEGMENT 1: DALLAS TO HOUSTON
\n Assumed Distance: 269 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Payment<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 1 Contract Price $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 1 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
5. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
6. Due upon Acceptance Date of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
7. Due upon delivery of final “As-Builts” for Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 2: DENVER TO EL PASO
\n Assumed Distance: 749 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 2 Contract Price $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 2 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
5. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
6. Due upon Acceptance Date of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
7. Due upon delivery of final “As-Builts” for Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 2A: LAMY TO SANTA FE
\n Assumed Distance: 17 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 2A Contract Price $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 2A fiber cost* $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
5. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
6. Due upon Acceptance Date of Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
7. Due upon delivery of final “As-Builts” for Segment $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 3: SANTA CLARA TO SALT LAKE CITY
\n Assumed Distance: 871 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 3 Contract Price $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 3 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
5. Due upon<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% completion of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
6. Due upon Acceptance Date of Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
7. Due upon delivery of final “As-Builts” for Segment $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 4: OAKLAND TO PORTLAND
\n Assumed Distance: 752 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Payment<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 4 Contract Price $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 4 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Aggregate monthly progress payments**:<\/p>\n
(a) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable ready conduit $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
(b) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable installed and spliced $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% As-Built Reserve $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 5: CLEVELAND TO BOSTON
\n Assumed Distance: 691 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Payment<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 5 Contract Price $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 5 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Aggregate monthly progress payments**:<\/p>\n
(a) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable ready conduit $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
(b) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable installed and spliced $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% As-Built Reserve $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 6: PORTLAND TO SEATTLE
\n Assumed Distance: 182 miles
\n Allocated Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
Payment<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 6 Contract Price $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
2. Total Segment 6 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
3. Aggregate monthly progress payments**:<\/p>\n
(a) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable ready conduit $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
(b) $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of cable installed and spliced $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
4. <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% As-Built Reserve $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
SEGMENT 7: KANSAS CITY TO ST. LOUIS
\n Contract Price: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
Payment<\/p>\n
1. Initial deposit of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% of Segment 7 Contract Price $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
2. Total Segment 7 fiber cost* $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
3. Monthly progress payments: $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per foot of
\n cable installed and spliced $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
4. <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% As-Built Reserve $ <\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
TOTAL $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per mile<\/p>\n
_________________________<\/p>\n
* All payments for the cost of the WORLDCOM Fiber to be incorporated
\nin each Segment are based on an assumed cost of<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per fiber foot, or $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per 24 fiber foot, and assume<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
% excess fiber for slack. Fiber cost for each Segment will be billed
\nas QWEST receives invoices from the fiber vendor, but in no event
\nshall the invoices to be paid by WORLDCOM for the WORLDCOM Fiber
\nincorporated in any Segment exceed the amount reflected for each
\nSegment as the total fiber cost for such Segment.<\/p>\n
** Monthly progress payments not to be invoiced until construction
\nstarts between Roseville and Portland<\/p>\n
C. Incremental Fiber Cost Under Section 1.1(b).<\/p>\n
The incremental Cost to WORLDCOM of the additional twenty-four
\n(24) Dark Fibers (Corning SMF-DS) on that portion of Segment 3 between
\nSanta Clara and Oakland pursuant to Section 1.1(b) shall be $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per 24 fiber foot.<\/p>\n
D. Incremental Fiber Cost Under Section 1.7(ii).<\/p>\n
The incremental Cost to QWEST of the twenty-four (24) Dark Fibers
\n(Corning SMF-LS) described in Section 1.7(ii) in the WORLDCOM
\nPortland\/Seattle System shall be $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per 24 fiber foot.<\/p>\n
E. Incremental Fiber Cost Under Section 1.6.<\/p>\n
The incremental Cost to WORLDCOM of the twelve (12) Dark Fibers
\n(Corning SMF-DS) subject to the Connective IRU and the O\/SC IRU shall
\nbe $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per 12 fiber foot.<\/p>\n
EXHIBIT K<\/p>\n
As-Built Drawing Specifications<\/p>\n
As Built Alignment Sheets.<\/p>\n
Survey information (either from existing date or new information)
\nwill be put on drawings.<\/p>\n
Drawings will contain cable information, splice locations, assist
\npoint locations with permanent structures, landowner information,
\nconduit information, regen locations and optical distances to each
\nregen from each splice location. Railroad mile posts are used as
\nfixed points for stationing.<\/p>\n
Drawings will be updated with actual field data during and after
\n construction.<\/p>\n
Metro areas scale shall not exceed 1 inch = 200 feet.<\/p>\n
Rural areas scale shall not exceed 1 inch = 500 feet.<\/p>\n
Cable information shall include manufacturer and type of fiber,
\nand manufacturer and style of cable.<\/p>\n
Red line drawings will be provided at the time of acceptance.<\/p>\n
Final as-builts will be provided within 180 days after
\nacceptance.<\/p>\n
FIRST AMENDMENT TO IRU AGREEMENT<\/p>\n
This FIRST AMENDMENT TO IRU AGREEMENT (this “Amendment”) is made
\nand entered into as of the ___ day of June, 1996, by and between QWEST
\nCOMMUNICATIONS CORPORATION, a Delaware Corporation (“QWEST”), and
\nWORLDCOM NETWORK SERVICES, INC., a Delaware corporation (“WORLDCOM”).<\/p>\n
RECITALS<\/p>\n
A. QWEST and WORLDCOM are parties to that certain IRU Agreement
\ndated February 26, 1996, providing, among other things, for the grant
\nby QWEST to WORLDCOM of an exclusive IRU in certain Dark Fibers in the
\nQWEST System. All capitalized terms not otherwise defined herein
\nshall have the meanings ascribed to such terms in the IRU Agreement.<\/p>\n
B. QWEST and WORLDCOM desire to amend the IRU Agreement to
\ninclude twelve (12) additional Dark Fibers on a portion of Segment 2
\nof the QWEST System.<\/p>\n
Accordingly, in consideration of the mutual promises set forth
\nbelow, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereby agree
\nto amend the IRU Agreement as follows:<\/p>\n
1. Section 1.1(a) of the IRU Agreement is hereby amended by
\nadding at the end of such Section the following:<\/p>\n
Effective as of the Acceptance Date for Segment 2 delivered
\n hereunder, QWEST hereby grants to WORLDCOM an Indefeasible Right
\n of Use, for the purposes described herein, in twelve (12) Dark
\n Fibers (the “Additional Fibers”), to be specifically identified,
\n in the QWEST System between the WORLDCOM POP in Denver and the
\n point on the QWEST System right-of-way where the MCI
\n Telecommunications Corporation cable leaves the right-of-way in
\n the downtown area of Colorado Springs, Colorado (the “Additional
\n IRU”), for the Term, all on the terms and subject to the
\n conditions set forth herein. Each reference in this Agreement to
\n the “WORLDCOM Fibers” shall include the Additional Fibers, and
\n each reference in this Agreement to the “WORLDCOM IRU” shall
\n include the Additional IRU.<\/p>\n
2. Section 2.1 of the IRU Agreement is hereby amended to
\nincrease the Segment 1-3 Contact Price to $<\/p>\n
ATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
, to reflect the aggregate price of the Additional Fibers of $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
(based on $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile for approximately 75 miles; the “Additional Segment 2
\nContract Price”). The Additional Segment 2 Contract Price ;shall be
\ndue and payable in accordance with Section 2.1(a)(ii), i.e. ten (10)
\ndays after submission by QWEST to WORLDCOM of the invoice(s) QWEST
\nreceives from the fiber vendor for the Cable including the Additional
\nFibers. Exhibit J to the IRU Agreement is hereby amended to reflect
\nthe foregoing by (i) amending Part A thereof to increase (A) the
\nContract Price allocated to Segment 2 from $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
to $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
and (B) the total Contract Price for Segments 1, 2 and 3 from $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
to $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
and (ii) amending Part B thereof to increase (A) the total Allocated
\nContract Price from $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
to $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
and (B) the amount of the total Segment 2 fiber cost from $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
to $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
.<\/p>\n
3. On and after the execution of this Amendment, each reference
\nin the IRU Agreement to “this Agreement,” “hereunder,” “hereof,” or
\nwords of like import referring to the IRU Agreement and each reference
\nin the Maintenance Agreement dated February 26, 1996 by and between
\nQWEST and WORLDCOM to the “IRU Agreement,” “thereunder,” “thereof” or
\nwords of like import referring to the IRU Agreement shall mean the IRU
\nAgreement as amended and modified by this Amendment. The IRU
\nAgreement as amended and modified by this Amendment is and shall
\ncontinue to be in full force and effect.<\/p>\n
4. This Amendment may be executed in one or more counterparts,
\nall of which taken together shall constitute one and the same
\ninstrument.<\/p>\n
In confirmation of their consent and agreement to amend the IRU
\nAgreement and intending to be legally bound hereby, the parties have
\nexecuted this Amendment to the IRU Agreement as of the date first
\nabove written.<\/p>\n
“QWEST”<\/p>\n
QWEST COMMUNICATIONS CORPORATION, a Delaware
\n corporation<\/p>\n
By:\/s\/
\n Name: Douglas H. Hanson
\n Title: President and Chief Executive
\n Officer<\/p>\n
“WORLDCOM”<\/p>\n
WORLDCOM NETWORK SERVICES, INC., a
\n Delaware corporation<\/p>\n
By:\/s\/
\n Name: Gary V. Shaw
\n Title: V.P. Network Planning and
\n Operations <\/p>\n
SECOND AMENDMENT TO IRU AGREEMENT<\/p>\n
This SECOND AMENDMENT TO IRU AGREEMENT (this “Amendment”) is made
\nand entered into as of the ___ day of July, 1996, by and between QWEST
\nCOMMUNICATIONS CORPORATION, a Delaware Corporation (“QWEST”), and
\nWORLDCOM NETWORK SERVICES, INC., a Delaware corporation (“WORLDCOM”).<\/p>\n
RECITALS<\/p>\n
A. QWEST and WORLDCOM are parties to that certain IRU Agreement
\ndated February 26, 1996, as amended by the First Amendment to IRU
\nAgreement dated as of June 13, 1996 (the “IRU Agreement”), providing,
\namong other things, for the grant by QWEST to WORLDCOM of an exclusive
\nIRU in certain Dark Fibers in the QWEST System. All capitalized terms
\nnot otherwise defined herein shall have the meanings ascribed to such
\nterms in the IRU Agreement.<\/p>\n
B. QWEST and WORLDCOM desire to amend the IRU Agreement to,
\namong other things, provide for the acquisition by QWEST of an IRU
\nwith respect to twenty-four (24) additional Dark Fibers on the
\nWORLDCOM Portland\/Seattle System.<\/p>\n
Accordingly, in consideration of the mutual promises set forth
\nbelow, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereby agree
\nto amend the IRU Agreement as follows:<\/p>\n
1. The last sentence of Section 1.7 of the IRU Agreement is
\nhereby amended to change the Section referred to therein from “Section
\n2.2(b)” to “Section 2.1(b).”<\/p>\n
2. The IRU Agreement is hereby amended to add a new Section 1.9
\nto such Agreement, which Section will read in its entirety as follows:<\/p>\n
1.9 WORLDCOM hereby acknowledges QWEST’S timely exercise of the
\n option set forth in Section 1.7 above and, in addition to the IRU
\n in forty-eight (48) Dark Fibers to be acquired by QWEST thereunder,
\n hereby grants to QWEST an Indefeasible Right of Use in twenty-four
\n (24) Dark Fibers, to be specifically identified (including WORLDCOM
\n Associated Property), in the WORLDCOM Portland\/Seattle System, for
\n the Term and on the terms and subject to the conditions set forth
\n herein; provided that the grant of the foregoing IRU in, and the
\n delivery to QWEST of, such twenty-four (24) Dark Fibers shall be
\n subject to and conditioned upon QWEST’s prior written notification
\n to WORLDCOM that QWEST has commenced construction of the Optional
\n Phoenix\/Los Angeles Segment, as that term is defined in
\n Section 1.8. In consideration of the grant of such IRU, QWEST
\n shall pay to WORLDCOM an amount equal to the route miles of the
\n WORLDCOM Portland\/Seattle multiplied by $<\/p>\n
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
\nCONFIDENTIAL TREATMENT##<\/p>\n
per route mile, which amount shall be payable according to the payment
\nmethodology applicable under Section 2.1(b).<\/p>\n
3. The IRU Agreement is hereby amended to add a new
\nSection 1.10 to such Agreement, which Section will read in its
\nentirety as follows:<\/p>\n
1.10 Each grant of an IRU by WORLDCOM to QWEST under this IRU
\n Agreement is governed by the same terms and subject to the same
\n conditions as the IRUs granted by QWEST to WORLDCOM hereunder,
\n except, for purposes of the IRUs granted by WORLDCOM to QWEST,
\n the references in such terms and conditions to “QWEST” shall
\n refer to “WORLDCOM” and the references to “WORLDCOM” shall refer
\n to “QWEST.”<\/p>\n
4. On and after the execution of this Amendment, each reference
\nin the IRU Agreement to “this Agreement,” “hereunder,” “hereof,” or
\nwords of like import referring to the IRU Agreement and each reference
\nin the Maintenance Agreement dated February 26, 1996 by and between
\nQWEST and WORLDCOM to the “IRU Agreement,” “thereunder,” “thereof,” or
\nwords of like import referring to the IRU Agreement shall mean the IRU
\nAgreement as amended and modified by this Amendment. The IRU
\nAgreement as amended and modified by this Amendment is and shall
\ncontinue to be in full force and effect.<\/p>\n
5. This Amendment may be executed in one or more counterparts,
\nall of which taken together shall constitute one and the same
\ninstrument.<\/p>\n
[Signature page follows]<\/p>\n
In confirmation of their consent and agreement to amend the IRU
\nAgreement and intending to be legally bound hereby, the parties have
\nexecuted this Amendment to the IRU Agreement as of the date first
\nabove written.<\/p>\n
“QWEST”<\/p>\n
QWEST COMMUNICATIONS CORPORATION, a Delaware
\n corporation<\/p>\n
By:\/s\/
\n Name: Douglas H. Hanson
\n Title: President and Chief Executive
\n Officer<\/p>\n
“WORLDCOM”<\/p>\n
WORLDCOM NETWORK SERVICES, INC., a
\n Delaware corporation<\/p>\n
By: \/s\/
\n Name:
\n Title: <\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8630,9361],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42343","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_companies-worldcom-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42343","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42343"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42343"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42343"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42343"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}