1
Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission. These portions are designated "[ * * * ]".
EXHIBIT 10.29
[FRONTIER LOGO]
CAPACITY AGREEMENT
BETWEEN
FRONTIER COMMUNICATIONS OF THE WEST, INC.
AND
PATHNET, INC.
08/16/99 CONFIDENTIAL
2
CAPACITY AGREEMENT
This Capacity Agreement ("Agreement") is entered into between the provider of
service, Frontier Communications of the West, Inc. on behalf of itself and its
affiliates that may provide a portion of the services hereunder ("Frontier"), a
California corporation located at 90 Castilian Drive, Goleta, CA 93117 and
Pathnet, Inc. ("Pathnet" or "Purchaser"), a Delaware corporation with its
principal place of business located at lOl5 31st Street NW, Washington DC 20007
(hereinafter, Frontier and Pathnet may be referred to in the aggregate as
"Parties", and each singularly as a "Party".)
PURPOSE
Pathnet desires to purchase dedicated circuit capacity from Frontier for the
transport of Pathnet's telecommunications traffic. For valuable consideration,
receipt of which is hereby acknowledged, the Parties hereto agree as follows.
DEFINITIONS (not otherwise defined in the body of this Agreement or an
attachment).
A. "Affiliate" means any entity directly or indirectly controlling,
controlled by or under common control with a Party.
B. "Billing Cycle" is the Frontier billing cycle to which Pathnet's
account hereunder is assigned by Frontier (a full billing cycle
approximates 30 days).
C. "Business Day" is Monday through Friday, 8:00 am to 5:00 PM EST,
excluding nationally recognized holidays. Unless otherwise stated,
"days" refers to calendar days.
D. "Delinquent" (whether capitalized or not) means any invoiced amounts
not properly disputed under Section 4 of this Agreement and remaining
unpaid on the due date of the invoice.
1. SERVICES; CIRCUIT TERM; CIRCUIT AVAILABILITY DATE:
1.1 Frontier shall, in accordance with the terms of this Agreement,
provide Pathnet with DS-1, DS-3, OC-3 and OC-12 circuit capacity as
the same may be ordered by Pathnet and the order accepted by Frontier
hereunder from time to time. All such circuit capacity collectively
referred to as the "Services" or "Private Line Services.
1.2 Unless one Party provides the other with at least 90 days prior
written notice of its intent not to renew a circuit after the
circuit's minimum commitment period expires, then, unless the Parties
agree otherwise in writing, a circuit shall automatically renew on a
month to month basis at Frontier's then-current rates and charges for
that circuit type or as the parties may mutually agree in writing.
08/16/99 3
Initials MAL
--------
Initials
--------
3
1.3 Frontier shall provide a 48 hour turnaround response to a Pathnet
feasibility request. Response shall include provider's POP to POP
capacity availability and detailed price quote for the POP to POP
service. Once Frontier fully defines a process for quoting local loops
on DS1 and DS3 level circuits, Frontier agrees to provide Pathnet with
a detailed price quote in writing and in a time frame agreed to by the
Parties. Interval calculation shall commence upon the issuance of a
completed order by Pathnet and acceptance by Frontier. Frontier shall
provide notification and appropriate circuit provisioning information
on the following provisioning dates:
a. ORC -- Order Receipt Date: The date upon which Frontier shall
notify Pathnet that Pathnet's firm order request has been
received and accepted and any standard interval quote has
commenced.
b. FOC -- Firm Order Confirmation: The date upon which Frontier
shall notify Pathnet of the firm due date as well as final
pricing details for both POP to POP and any third party access.
c. DLRD -- Design Layout and Design: The date upon which Frontier
shall notify Pathnet regarding specific circuit configuration to
include POP to POP locations, Circuit ID, Circuit ID of each
access line and provider as well as any demarc/interconnect
information.
d. Service Turnup -- The date upon which Frontier will notify
Pathnet when the end to end circuit including any third party
access ordered and coordinated by Frontier has passed the circuit
acceptance criteria.
Pathnet will be responsible for accepting/rejecting the end to
end service within 48 hours of Service Turnup from Frontier.
Frontier will not start billing of any part of the end to end
(Pathnet premises to Pathnet premises) service until acceptance
of the service from Pathnet which shall occur within 48 hours. If
Pathnet does not communicate a good faith rejection of the
circuit within 48 hours, it shall be deemed to have been
accepted. Upon receipt of a complete and accurate service order
for a circuit, Frontier shall notify Pathnet of its target date
for the delivery of each circuit (the "Estimated Availability
Date"). Any Estimated Availability Date given by Frontier to
Pathnet shall be subject to Frontier's then-current standard and
expedited interval guidelines. Frontier shall use reasonable
efforts to install each circuit on or before the Estimated
Availability Date, but the inability of Frontier to deliver a
circuit by such date, or within the interval guidelines, shall
not be deemed a breach of this Agreement by Frontier. If Frontier
fails to make any circuit available within 90 days after
acceptance by Frontier of the service order with respect to such
circuit (or such greater time as is set forth in the interval
guidelines), Pathnet's sole remedy shall be to cancel the service
order which pertains to such circuit upon ten days prior written
notice to Frontier.
08/16/99 4
Initials MAL
--------
Initials
--------
4
1.4 At each end of the city pairs on which Pathnet orders circuits,
Frontier shall provide appropriate equipment in its SONET POP
locations necessary to connect the circuits to Pathnet's
Interconnection Facilities. If Pathnet desires to install its own
equipment in one or more SONET POP, and Frontier, in its sole
discretion, agrees to such installation, the Parties shall execute a
collocation agreement acceptable to both Parties. Pathnet agrees that
its Interconnection Facilities shall connect to the circuits provided
by Frontier hereunder at the network interface points located in the
Frontier SONET POPs. As used herein, the term "Interconnection
Facilities" shall mean transmission capacity provided by Pathnet or
its third party Frontier to extend the circuits provided by Frontier
from a SONET POP to any other location (e.g., a local access telephone
service provided by a local telephone company).
1.5 For DS-3 and lesser capacity circuits, Frontier shall use reasonable
efforts to order Interconnection Facilities on behalf of Pathnet from
Pathnet's designated Frontier, provided that Pathnet furnishes
Frontier with an acceptable letter of agency. Pathnet shall be billed
directly by Frontier of such Interconnection Facilities, and shall
defend and indemnify Frontier from any loss or liability incurred by
Frontier as a result of Frontier's ordering Interconnection Facilities
from any third party on Pathnet's behalf. Pathnet may, at its
election, but subject to Frontier's prior written approval, order its
own Interconnection Facilities. If any party other than Frontier
provides Interconnection Facilities, then unavailability,
incompatibility, delay in installation, or other impairment of
Interconnection Facilities shall not excuse Pathnet's obligation to
pay Frontier all rates or charges applicable to the circuits, whether
or not such circuits are useable by Pathnet. Frontier will not order
Interconnection Facilities on behalf of Pathnet for OC-N circuits.
2. TERM OF THE AGREEMENT:
This Agreement is binding on the Parties upon the date of execution by
Frontier ("Effective Date") and, subject to the termination provisions of
this Agreement, shall continue in effect for a period of three (3) years
from the Effective Date (the" Initial Term"). If a circuit remains
installed beyond the term of this Agreement, then this Agreement shall
remain in effect as long as a circuit is installed hereunder.
3. BILLING AND PAYMENT; MINIMUM COMMITMENTS:
3.1 Pathnet shall pay Frontier for the Services at the rates and charges
set out in Exhibit A or as the Parties may otherwise agree in writing.
Pathnet is also liable for applicable taxes and governmental
assessments with respect to its use of the Services. If Pathnet is
required to provide security for payment hereunder, then Frontier is
not obligated to accept orders, or provide or continue to provide any
Services or circuits, until the required security is received by
Frontier. That commencement may be delayed by Pathnet for a cumulative
period of 30 days from Firm Order Confirmation date without penalty.
All invoices shall include the itemized detail of price elements
comprising each service, including all charges and credits. The
Pathnet circuit ID entered on the originating Service Order request
shall be cross-referenced on a separate report setting forth the
appropriate Frontier circuit ID. All discounts and promotions, if any,
and taxes, will be included in the monthly invoice. All pro-rated
monthly charges will be based upon a 30 day month. Billing for a POP
to POP circuit shall commence upon the earlier to occur of (i) 30 days
following the date Frontier notifies Pathnet, in writing or via
electronic transmission, that the ordered circuit capacity is
available from Frontier (regardless of whether or not Pathnet's
Interconnection Facilities are installed and operational), and (ii)
the date the ordered circuit capacity is first utilized by Pathnet
(the "Service Date").
08/16/99 5
Initials MAL
--------
Initials
--------
5
3.2 Pathnet shall provide Frontier with financial security in the amount
of $0.
3.3 Pathnet's initial credit limit hereunder shall be [ * * * ]. If
Pathnet's monthly charges for the Services exceed its credit limit,
Frontier may require security of its choice from Pathnet in an amount
equal to Pathnet's highest invoice over the prior six month period (or
such lesser period if this Agreement has not been in effect for six
months) as a condition to continuing to provide the Services. In
addition, if Pathnet is delinquent in payment of an invoice and
Frontier does not have security from Pathnet in an amount equal to
Pathnet's highest invoice over the prior six month period (or such
lesser period if this Agreement has not been in effect for six
months), Frontier may require additional security of its choice from
Pathnet in such amount. Any such additional security shall be provided
by Pathnet to Frontier within 48 hours (if the security is to be other
than a letter of credit and within ten Business Days if the security
is to be a letter of credit) from its receipt of Frontier's written
request for additional security.
3.4 Monthly recurring charges ("MRC") shall be invoiced by Frontier on a
monthly basis in advance and non-recurring charges shall be invoiced
in arrears. If the Service Date for any circuit falls on other than
the first day of any Billing Cycle, the initial charge to Pathnet
shall consist of: (i) the pro-rata portion of the applicable monthly
charge covering the period from the Service Date to the first day of
the subsequent Billing Cycle, and (ii) the monthly charge for the
following Billing Cycle. Payment terms are net 30 days from the
invoice date. Any invoice not paid by its due date shall bear late
payment fees at the rate of 1-1/2% per month (or such lower amount as
maybe required by law) until paid.
3.5 The pricing in this Agreement and any attached Exhibits applies only
to the Private Line Services provided between the "on-net" nodes set
out in the Frontier SONET POP List attached hereto as Exhibit B or as
amended and is valid for the term of this Agreement. If Frontier's
cost in providing the Private Line Services is increased due to
circumstances beyond its reasonable control, or Frontier elects to
pass through any governmental or regulatory assessments related to its
provision of the Private Line Services, then Frontier may revise the
rates and charges in this Agreement and any attached Exhibits upon 30
days written notice to Pathnet. Pathnet may cancel any circuits
subject to a rate/charge increase upon written notice to Frontier
given no later than 30 days after Pathnet's receipt of the increase
notice.
3.6 Commencing with the twelfth (12th) month following the Effective
Date, Pathnet shall be liable for a monthly minimum usage charge for
the Services of $150,000 (the "Minimum Charge"). If during the term of
the contract, Pathnet's net charges for the Services are less than the
Minimum Charge, Pathnet shall pay rates as outlined in Exhibit A
Standard Pricing. If this Agreement is terminated prior to the time
the Minimum Charge becomes effective (other than termination by
Pathnet for an uncured breach by Frontier), Pathnet shall be liable
for an amount equal to the Minimum Charge for the remaining portion of
the unexpired term of this Agreement.
3.7 Pathnet shall be liable for the applicable minimum circuit terms and
minimum circuit commitment charges set out in Exhibit A.
Notwithstanding the foregoing, should Pathnet fail to place an order
for the two OC-12 circuits (as stated in Exhibit A) (the "Pathnet
Specific Circuits") by September 30, 1999, then the Pathnet Specific
Circuits shall be considered null and void and will require
re-negotiation between the Parties.
08/16/99 6
Initials MAL
--------
Initials
--------
6
Frontier agrees to provide the Special Pricing for circuits ordered
with one year terms during Pathnet's ramp up period and shall continue
at such pricing level provided Pathnet is attaining its Minimum Charge
obligation under this Agreement. In the event, Pathnet is not meeting
its Minimum Charge obligation, then Pathnet will be charged the
Standard Pricing for any circuits ordered.
3.8 If a circuit is canceled prior to expiration of its minimum term
commitment, except if canceled by Pathnet under Section 3.5 hereof, or
this Agreement is terminated for Frontier's uncured breach, Pathnet
shall be liable for, and shall pay to Frontier upon demand, an early
termination fee in an amount equal to the applicable monthly per
circuit minimum charge times the number of months remaining on the
unexpired term commitment (whether the initial or a renewal term) for
the circuit.
3.9 Pathnet agrees that any minimum charge shortfall and any early
termination fees for which it may be liable under this Agreement are
based on agreed upon minimum commitments on its part and corresponding
rate concessions on Frontier's part, and are not penalties or
consequential or other damages under Section 6.3 hereof.
3.10 Pathnet agrees that a breach of any other agreement it may have with
Frontier or a Frontier Affiliate shall be deemed a material breach of
this Agreement.
4. BILLING DISPUTES: Pathnet shall have the affirmative obligation of
providing written notice of any dispute with an invoice within 90 days
after receipt of the invoice by Pathnet (which notice shall include
sufficient detail for Frontier to investigate the dispute). Pathnet may
withhold payment only on amounts so disputed within 30 Business Days after
Pathnet's receipt of the invoice. Pathnet may not withhold payment of
amounts disputed after such 30 Business Day period. Pathnet shall not be
responsible for the payment of any charges nor shall Frontier invoice any
charges for Services that were not invoiced within 90 days after the
Service for the charge was actually rendered other than third party charges
not invoiced within the same 90 day period. If Pathnet does not report a
dispute with respect to an invoice within the 90 day period, Pathnet is
deemed to have waived its dispute rights for that invoice and to have
agreed to pay the same. Provided Pathnet has provided sufficient detail for
investigation of the dispute, Frontier will use reasonable efforts to
resolve and communicate its resolution of the dispute within 30 Business
Days of its receipt of the dispute notice. If the dispute is resolved in
Frontier's favor any amounts to be paid by Pathnet shall be subject to the
late payment charges under Section 3.4 hereof retroactive to the due date
of the disputed invoice. Notwithstanding anything herein to the contrary,
Pathnet shall not withhold any disputed amounts while its Frontier account
is delinquent.
5. TERMINATION RIGHTS:
5.1 Either Party may terminate this Agreement upon the other Party's
insolvency, dissolution or cessation of business operations.
5.2 Frontier may, upon written notice, only immediately terminate this
Agreement for (i) Pathnet's failure to pay any delinquent invoice, or
(ii) to pay any security or additional security within the time-frame
required under this Agreement.
08/16/99 7
Initials MAL
--------
Initials
--------
7
5.3 In the event of a breach of any material term or condition of this
Agreement by a Party (other than a failure to pay or provide security
which is covered under Section 5.2 hereof), the other Party may
terminate this Agreement upon 30 days written notice, unless the
breaching Party cures the breach during the 30 day period. A breach
that cannot be reasonably cured within a 30 day period may be
addressed by a written waiver of this paragraph signed by the Parties.
In addition to any other rights hereunder, Pathnet may terminate this
Agreement and/or the affected Service without early termination fee or
penalty, except for unpaid charges as of the effective date of
termination, as follows:
Pathnet shall have the right to terminate a circuit, without incurring
early termination liability, upon ten days written notice to Frontier
that the circuit has experienced repeated or chronic Service Outages
(as defined below). For purposes of this Section, "repeated or chronic
Service Outages" is defined as the occurrence of four (4) or more
Pathnet reported service interruptions or outages (excepting planned
maintenance and force majeure events) in the same circuit of more than
one (1) hour duration each in any month.
5.4 If this Agreement is terminated prior to expiration of a circuit's
term commitment, except if terminated by Pathnet under Section 5.3
hereof, then Pathnet shall pay to Frontier upon demand an early
termination fee in an amount equal to the aggregate sum of each
existing circuit's monthly minimum commitment, times the number of
months remaining on each circuit's minimum commitment period.
6. WARRANTIES AND LIMITATION OF LIABILITY:
6.1 The Services shall be provided by Frontier in accordance with the
applicable technical standards established for dedicated circuit
capacity by the telecommunications industry for a digital fiber optic
network. FRONTIER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO TRANSMISSION, EQUIPMENT OR SERVICE PROVIDED HEREUNDER, AND
EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FUNCTION.
6.2 The entire liability of Frontier for all claims of whatever nature
arising out of its provision of the Private Line Services (including
its negligence), and not caused by (i) Pathnet or third parties, or
(ii) a scheduled or emergency interruption, shall be a credit for
service interruptions greater than 120 continuous minutes for linear
routes and 60 continuous minutes for protected routes (hereafter an
"Outage"). The amount of the credit is computed in accordance with the
following formula (the "Outage Credit"):
Example: Outage Credit = Hours of Outage - 2 hours x Total MRC for Affected Circuit
-------------------------
720 hours
A. The Outage Credit shall apply to the charges for any circuit
affected by an Outage; provided, however, that if any portion of
the affected circuit remains useable by Pathnet, the Outage
Credit shall not apply to that pro-rata portion of the mileage.
The duration of each Outage shall be calculated in hours and
shall include fractional portions thereof. An Outage shall be
deemed to have commenced one hour after verifiable notification
thereof by Pathnet to Frontier, or, when indicated by network
control information actually known to Frontier network personnel,
whichever is earlier for SONET protected routes and after two
hours for linear routes. Each Outage shall be deemed to terminate
upon restoration of the affected circuit as evidenced by
appropriate network tests by Frontier. Frontier shall give notice
to Pathnet of any scheduled interruption as early as is
practicable.
08/16/99 8
Initials MAL
--------
Initials
--------
8
B. Outage Credits shall not be granted if the malfunction of any
end-to-end circuit is due to an outage or other defect occurring
in Pathnet's Interconnection Facilities.
C. All Outage Credits shall be credited on the next monthly invoice
for the affected circuit after receipt of Pathnet's written
request for credit. The total of all Outage Credits applicable to
or accruing in any given month shall not exceed the amount
payable by Pathnet to Frontier for that same month for the
affected circuit.
D. The Outage Credit described in this Section shall be the sole and
exclusive remedy of Pathnet in the event of any Outage or other
failure in the Services, and under no circumstance shall an
Outage or other such failure be deemed a breach of this Agreement
by Frontier.
6.3 In no event shall either Party be liable to the other Party for
incidental and consequential damages, loss of goodwill, anticipated
profit, or other claims for indirect damages in any manner related to
this Agreement or the Services.
7. INDEMNIFICATION: Each Party shall defend and indemnify the other Party and
its directors, officers, employees, representatives and agents from any and
all claims, taxes, penalties, interest, expenses, damages, lawsuits or
other liabilities (including without limitation, reasonable attorney fees
and court costs) relating to or arising out of (i) acts or omissions in the
operation of its business, and (ii) its breach of this Agreement; provided,
however, Frontier shall not be liable and shall not be obligated to
indemnify Pathnet, and Pathnet shall defend and indemnify Frontier
hereunder, for any claims by any third party, including Pathnet's
customers, with respect to services provided by Pathnet which may
incorporate any of the Services.
8. REPRESENTATION: The Parties acknowledge and agree that the relationship
between them is solely that of independent contractors. Neither Party, nor
their respective employees, agents or representatives, has any right, power
or authority to act or create any obligation, express or implied, on behalf
of the other Party.
9. FORCE MAJEURE: Other than with respect to failure to make payments due
hereunder, neither Party shall be liable under this Agreement for delays,
failures to perform, damages, losses or destruction, or malfunction of any
equipment, or any consequence thereof, caused or occasioned by, or due to
fire, earthquake, flood, water, the elements, labor disputes or shortages,
utility curtailments, power failures, explosions, civil disturbances,
governmental actions, shortages of equipment or supplies, unavailability of
transportation, acts or omissions of third parties, or any other cause
beyond its reasonable control.
10. WAIVERS: Failure of either Party to enforce or insist upon compliance with
the provisions of this Agreement shall not be construed as a general waiver
or relinquishment of any provision or right under this Agreement.
11. ASSIGNMENT: Neither Party may assign or transfer its rights or obligations
under this Agreement without the other Party's written consent, which
consent may not be unreasonably withheld, except that Frontier may assign
this Agreement to its Affiliates or successors in interest without
Pathnet's consent. Any assignment or transfer without the required consent
is void.
08/16/99 9
Initials MAL
--------
Initials
--------
9
12. CONFIDENTIALITY: Each Party agrees that all information furnished to it by
the other Party, or to which it has access under this Agreement, shall be
deemed the confidential and proprietary information or trade secrets
(collectively referred to as "Proprietary Information") of the Disclosing
Party and shall remain the sole and exclusive property of the Disclosing
Party (the Party furnishing the Proprietary Information referred to as the
"Disclosing Party" and the other Party referred to as the "Receiving
Party"). Each Party shall treat the Proprietary Information and the
contents of this Agreement in a confidential manner and, except to the
extent necessary in connection with the performance of its obligations
under this Agreement, neither Party may directly or indirectly disclose the
same to anyone other than its employees on a need to know basis and who
agree to be bound by the terms of this Section, without the written consent
of the Disclosing Party.
13. INTEGRATION: This Agreement and all Exhibits and other attachments
incorporated herein, represent the entire agreement between the Parties
with respect to the subject matter hereof and supersede and merge all prior
agreements, promises, understandings, statements, representations,
warranties, indemnities and inducements to the making of this Agreement
relied upon by either Party, whether written or oral.
14. GOVERNING LAW: Frontier currently maintains regional service and operations
centers to support customer accounts in New York, California and Michigan.
This Agreement will be construed and enforced in accordance with the law of
the state where Pathnet's account is supported, as designated by Frontier
in this Agreement or as designated in Exhibits or amendments to this
Agreement, without regard to that state's choice of law principles. The
Parties agree that any action related to this Agreement shall be brought
and maintained only: (i) in the Superior court of the State of California
for the County of Santa Barbara, if the designated customer support center
is located in California; (ii) in a Federal or State court of competent
jurisdiction located in Monroe County, New York, if the designated customer
support center is located in New York; or (iii) in the Federal District
Court for the Eastern District of Michigan or a State court of competent
jurisdiction located in Oakland County, Michigan, if the designated
customer support center is located in Michigan. The Parties each consent to
the jurisdiction and venue of such courts and waive any right to object to
such jurisdiction and venue.
15. NOTICES: All notices, including but not limited to, demands, requests and
other communications required or permitted hereunder (not including
Invoices) shall be in writing and shall be deemed given: (i) when delivered
in person, (ii) 24 hours after deposit with an overnight delivery service
for next day delivery, (ii) the same day when sent by facsimile
transmission during normal business hours, receipt confirmed by sender's
equipment, or (iii) 72 hours after deposit in the United States mail,
postage prepaid, registered or certified mail, return receipt requested,
and addressed to the recipient Party at the address set forth below:
If to Frontier: Frontier Communications
180 South Clinton Ave.
Rochester, NY 14646
Attn: Brian Fitzpatrick or Vice President Carrier Services
Facsimile #: (716) 232-9168
with a copy to: Frontier Communications
90 Castilian Drive
Goleta, CA 93117
Attn: Peggy Palak Manager, National Contract Admin.
Facsimile #: (800) 689-2395
08/16/99 10
Initials MAL
--------
Initials
--------
10
If to Pathnet Pathnet, Inc.
1015 31st Street, NW
Washington, DC 20007
Attn: General Counsel
Facsimilie #: (202) 625-7369
16. COMPLIANCE WITH LAWS: During the term of this Agreement, the Parties shall
comply with all local, state and federal laws and regulations applicable to
this Agreement and to their respective businesses.
17. SURVIVAL OF PROVISIONS: Any obligations of the Parties relating to monies
owed, as well as those provisions relating to confidentiality, limitations
on liability and indemnification, shall survive termination of this
Agreement.
18. UNENFORCEABLE PROVISIONS: The illegality or unenforceability of any
provision of this Agreement does not affect the legality of enforceability
of any other provision or portion. If any provision or portion of this
Agreement is deemed illegal or unenforceable for any reason, there shall be
deemed to be made such minimum change in such provision or portion as is
necessary to make it valid and enforceable as so modified.
19. CUMULATIVE RIGHTS AND REMEDIES: Except as may otherwise be provided herein,
the assertion by a Party of any right or the obtaining of any remedy
hereunder shall not preclude such Party from asserting or obtaining any
other right or remedy, at law or in equity, hereunder.
20. AMENDMENTS: This Agreement is voidable by Frontier if the text is modified
by Pathnet without the written or initialed consent of a Frontier Vice
President. Except as may otherwise be provided herein, any amendments or
modifications to this Agreement must be in writing and signed by a Frontier
Vice President (or higher level officer) and an authorized officer of
Pathnet.
21. NON-SOLICITATION: Pathnet agrees that while this Agreement is in effect,
and for a period of 12 months following expiration or termination of this
Agreement, neither it nor its representatives will directly or indirectly
solicit Frontier employees to leave their employment with Frontier.
22. AUTHORITY: Each individual executing below on behalf of a Party hereby
represents and warrants to the other Party that such individual is duly
authorized to so execute, and to deliver, this Agreement. By its signature
below, each Party acknowledges and agrees that sufficient allowance has
been made for review of this Agreement by respective counsel and that each
Party has been advised by its legal counsel as to its legal rights, duties
and obligations under this Agreement.
Frontier Communications of the West, Inc. Pathnet, Inc.
By:/s/ BRIAN V. FITZPATRICK 8/20/99 By:/s/ MICHAEL A. LUBIN
---------------------------------- --------------------------------
Brian v. Fitzpatrick, SVP Carrier Sales Michael A. Lubin, Vice President
Frontier Carrier Services Group
Date: 8/20/99 Date:
--------------------------------- ----------------------------
11
Initials MAL
-------
Initials
-------
11
EXHIBIT A
Rates and Charges
[ * * * ]
12
EXHIBIT B
Natural Fiber Network POP Location (By Site)
Expected
Site Service Date State LATA POP Location Zip Code NPA-NXX
- ---- ------------ ----- ---- ------------ -------- -------
[***] [***] [***] [***] [***] [***] [***]