***
Confidential Portion has been omitted pursuant to a request for confidential
treatment by the Company to, and the material has been separately filed with,
the SEC. Each omitted Confidential Portion is marked by three
Asterisks.
CONTRACT FOR ALASKA ACCESS
SERVICES
This Agreement
entered into this 1st day of
January, 1993 between MCI TELECOMMUNICATIONS CORPORATION, a Delaware corporation
("MCI") and GENERAL COMMUNICATION, INC. and its wholly owned subsidiary GCI
COMMUNICATION CORP., Alaska corporations (together "GCI").
A. GCI
currently carries MCI interstate MTS traffic to and from the State
of
Alaska.
B. The
parties wish to extend and expand their relationship to provide greater service
within and to and from Alaska for their services.
NOW, THEREFORE, in
consideration of the mutual promises set forth below, the parties agree as
follows:
1.
DEFINITIONS.
A. Alaska
Average Terminating Access Cost: A blended per minute rate
calculated by
computing GCI's average interstate terminating access rate for each of the
companies listed below, and then averaging those rates weighted by the
percentage of total GCI terminating access traffic to each company. For each
company the average terminating interstate access rate will be calculated using
a 10 mile transport element. For the initial year of this agreement, the access
rate for each company shall be weighted as indicated below to produce the final
blended rate that is the Alaska Average Terminating Access Cost.
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Anchorage
Telephone Utility
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45.79%
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Matanuska
Telephone Association
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8.28%
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Fairbanks
Municipal Utilities System
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8.72%
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Telephone
Utilities of Alaska, Inc.
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18.14%
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Ketchikan
Public Utilities
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2.74%
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Coper Valley
Telephone Cooperative, Inc.
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.65%
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Cordova
Telephone Cooperative
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.41
%
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Interior
Telephone Company, Inc.
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.81
%
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Arctic Slope
Telephone Association Cooperative
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.50%
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GTE Alaska,
Incorporated
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.38%
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Rest of State
-- NECA
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13.58%
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Annually,
using October terminating minutes, GCI shall update the percentage used in
calculating the Alaska Average Terminating Access Cost based upon the
percentage of GCI's total billed terminating access minutes for each
Alaska exchange company.
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B.
*** Traffic: *** where *** in Alaska for *** other than *** Traffic and MCI
Southbound Traffic.
C.
*** Traffic: *** Alaska.
D.
MCI Southbound Traffic: *** which ***.
E.
MCI Northbound Traffic: *** Alaska and *** in Alaska.
F.
*** Traffic: MCI Northbound Traffic, MCI Southbound Traffic, ***.
G.
***.
2.
TRAFFIC SERVICES, CHARGES AND STANDARDS.
A.
*** Traffic. *** transmission services of *** Traffic and *** as
follows:
(1) MCI Northbound
Traffic. *** MCI NorthBound Traffic *** that not less than *** MCI Northbound
Traffic shall be delivered to ***. *** MCI Northbound Traffic received at the
*** to the appropriate destination in Alaska.
(2) MCI Southbound
Traffic. *** MCI Southbound Traffic and deliver it to *** except as provided in
Subsection 2.A(7).
(3) *** Traffic.
***
*** and deliver it
to *** except as provided in Subsection 2.A(7).
(4) *** Traffic.
*** a joint operating committee and a joint regulatory committee to propose a
plan within ninety (90) days of the date of this Agreement for the purpose
***.
Page 2
(5) MCI Alaska
Directory Assistance. MCI will deliver MCI Alaska
Directory
Assistance traffic to GCI POP's in Dallas, Texas or Seattle,
Washington. GCI
shall route all MCI Alaska Directory Assistance to the appropriate Alaska
directory assistance provider.
(6) MCI Alaska
Inward Operator Services. MCI will route Inward Operator Traffic to GCI in
Seattle, Washington and GCI will route the traffic to the GCI Operator center in
Wasilla, Alaska. GCI will offer Inward Operator services which are consistent
with the service offered from the local operating companies in
Alaska.
(7) Protection and
Restoration of Service (Hot Standby Capacity). GCI will provide sufficient idle
capacity from its Seattle and Dallas POP's to its Alaska switching centers such
that in the event of a failure of either GCI's or MCI's facilities in Seattle or
Dallas, MCI may immediately re-route its traffic from the affected POP to the
alternate POP. In the event of such failure, GCI will restore all Alaska
traffic, including to off-net locations. In the case of a failure of the North
Pacific Cable or the Alaska Spur, GCI will immediately carry all traffic which
can terminate on-net through its Anchorage, Fairbanks, and Juneau switching
centers from both POPs and additionally will carry all GCI on-net traffic
delivered to its Seattle POP. The remainder of Alaska will be restored upon
Alascom's restoration of its facilities.
GCI shall also
restore MCI's Southbound Traffic service and deliver it to the designated MCI
POP except that in some circumstances GCI will be unable to immediately restore
MCI Southbound Trafffic services for locations other than Anchorage, Fairbanks,
and Juneau.
GCI's restoral
services shall not guarantee immediate restoration in the event of simultaneous
dual mode failure, i.e., satellite and fiber or a complete satellite
failure.
B.
Charges. *** shall charge and *** for services provided by *** under this
section as follows:
(1) MCI Northbound
Traffic. At the option of ***, MCI Northbound
Traffic shall be
charged at rates equal to ***, less an amount equal to such rate times the
following percentage in the applicable year:
Page 3
Year Percentage
1993 ***
1994 ***
1995 ***
1996 ***
1997 ***
1998 ***
1999
&
thereafter ***
*** the specific
tariff and options by written notice to ***. All terms and conditions of
the tariff chosen which determine price shall apply to the ***.
Notwithstanding
anything to the contrary in the AT&T tariff, the rate for MCI Northbound
Traffic delivered to *** shall be not less than ***
per minute greater than the rate charged for MCI Northbound traffic delivered to
the ***. Notwithstanding the
calculations of the rates as provided in this subsection, the
average rate per minute for MCI Northbound Traffic shall not be less
than the *** for traffic delivered to *** for traffic delivered to
***.
(2) MCI Southbound
Traffic. MCI Southbound Traffic (except for ***) shall be charged at the
following rates per minute in the appropriate calendar year:
Year Rate
Dollars
1993
***
1994 ***
1995 ***
1996 ***
1997 ***
1998 ***
1999 &
thereafter
***
There shall be no
time of day discount. *** shall pay the *** access and Alascom
interexchange charges for MCI Southbound Traffic. Any query charges associated
with the routing of MCI Southbound Traffic, *** FCC Docket #86-10, will be
passed on to ***.
Page 4
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(3) ***
Traffic. For MCI Alaska Originated traffic, *** shall pay per end office
serving area a one time charge of *** and a monthly charge of ***. The
rate includes one *** charge. Each additional *** shall be charged at a
rate of ***. For special ***. For ***. MCI will issue an Access Service
Request (ASR) indicating the type of service and the end office serving
area for which it desires this service. This is an optional service and
will be ordered only at the discretion of
***.
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(4) ***
Traffic. *** shall charge ***.
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(5) MCI
Alaska Directory Assistance. GCI shall charge $0.65 for each MCI Alaska
Directory Assistance call.
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(6) MCI
Alaska Inward Operator Services. GCI will develop a list of the services
available through Inward Operator Services and provide MCI with a price
for each type of call.
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(7)
Protection and Restoration of Service (Hot Standby Capacity). MCI and GCI
shall negotiate the pricing for the service as outlined in Section 2.A(7).
If the parties are unable to agree on pricing, then neither party shall
have any obligations under Section
2.A.(7).
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C.
Billing. *** will bill *** for the services outlined in this Agreement monthly.
*** will pay by check within 25 days of the receipt of invoice.
D.
Timing of Calls. Unless an applicable tariff otherwise provides, the time
of
message billing
begins with trunk seizure in the case of subsections B(2) and B(3) and answer in
the case of subsections B(1) and B(4) and ends with disconnect.
E.
Changes in Tariff. If any referenced AT&T tariff is terminated or altered so
as to
materially change
the rates charged herein, the parties shall select a tariff and/or a new rate
that substantially reflects the economic and commercial transaction contemplated
by the parties in this section.
F.
Price Protection. Notwithstanding anything to the contrary, *** shall adjust the
pricing for services provided under this Agreement so that *** shall charge ***
(i) no more than it charges any other customer for any reasonably comparable mix
of services, or (ii) if there is no reasonably comparable mix, no more than it
charges any other customer for one or more of the services that constitutes a
material part of the
Page 5
services purchased
by *** under this Agreement if there is no substantial discount
otherwise provided
*** under this Agreement that offsets such other customer's
pricing
advantage.
G.
Network Performance Standards. *** shall use its best efforts to maintain the
quality of its service(s) provided under the direct control of *** and to manage
the quality of the portion of the services that is not under the direct control
of ***. Each party will ensure that industry standards, pertaining to the
transmission and delivery of traffic, are maintained at all times.
3.
TERM. Except for ***, services provided pursuant to
Section 2.A shall
be for a term of five (5) years beginning January 1, 1993 and ending
December 31, 1997.
The term shall be *** through and including December 31, *** unless either
party elects to cancel the *** by giving written notice of non-renewal at least
*** to the commencement of any ***. The services for *** traffic shall be for a
term of *** upon the issue of the first *** authorizing the turn up of a serving
area. The term for *** shall be automatically extended for *** through and
including *** unless either party elects to cancel the renewal periods by giving
written notice of non-renewal at least *** to the commencement of
***.
4.
DEFAULT AND REMEDIES.
A.
Events of Default. A party shall be in default upon the occurrence of any of the
following:
(1) The party shall
have failed to make any payment when due coupled with its failure to remedy
nonpayment within thirty days after receipt of written notice thereof from the
other party.
(2) The party shall
have failed to perform its obligations under Section 2.G. coupled with failure
to remedy nonperformance within thirty days after receipt of written notice
thereof from the other party.
(3) The party shall
not have paid, or shall have admitted in writing its
inability to pay,
its debt as they mature or shall have applied for, consented to or acquiesced in
the appointment of a trustee or receiver for any part of its property, or shall
have authorized any such action; or in the absence of any such application,
consent or acquiescence, a trustee or receiver shall have been appointed for a
party or for a substantial part of its property and shall not have been
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy or insolvency
law
Page 6
or
any dissolution or liquidation proceeding shall be have been instituted by the
party or, if instituted against the party, shall not have been dismissed within
a period of sixty (60) days.
B.
Consequences of Default and Remedies. In the event of default,
the nondefaulting party
shall have the right, immediately upon written notice to the defaulting party,
to terminate this Agreement without further liability, including monetary early
termination charges, except for obligations incurred prior to the termination
date. In addition, the nondefaulting party shall have and may exercise any other
remedies for breach.
C.
Dispute Resolution.
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1. The
parties shall attempt in good faith to resolve any disputes arising in
connection with this Agreement. If any dispute cannot be resolved within
thirty (30) days after written notification to the other party of the
dispute and detailed reason for the claim, then either party may submit
the matter for madatory, binding, exclusive
arbitration.
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2.
Arbitration Procedures. Arbitration shall be governed by the Commercial
Arbitration rules of the American Arbitration Association, 1739 Rhode
Island Avenue, N.W., Suite 509, Washington, D.C. 20036 ("AAA"), as
amended by this Agreement. The arbitrators authority shall be limited to
granting relief permitted by the substantive provisions of this Agreement.
Each party shall bear its own fees, costs, and expenses of the
arbitration, and its own legal expenses, attorneys' fees and costs of the
experts and witnesses; provided, however, that if the claim of a party is
upheld by the arbitrator in all material respects, the arbitrator may
apportion between the parties as the arbitrartor may deem equitable the
costs incurred by the prevailing party. Any award rendered pursuant to
such arbitration shall be final, conclusive and binding upon the parties,
and any judgment thereon may be entered and enforced in any court of
competent jurisdiction.
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5.
MISCELLANEOUS.
A.
Force Majeure, Change in Law or Regulation.
(1) Neither party
shall be liable for its failure to perform hereunder due to any contingency
beyond its reasonable control, including acts of God, fires, floods,
earthquakes, volcanic eruptions, wars, sabotage, accidents, labor disputes or
shortages, government laws, ordinances, rules and regulations whether valid or
invalid, inability to obtain material, equipment or transportation,
defective equipment and any other similar or different
Page 7
contingency. The
party whose performance is prevented by any such contingency shall
have the right to omit during the period of such contingency all or any portion
of the service deliverable during such period.
(2) If a
substantial change in law or regulation occurs materially affecting the
services, charges
or other requirements and conditions of this Agreement to the degree that one
or both of the parties are materially and adversely affected, the parties shall
negotiate amendments to this Agreement to restore the parties to substantially
the same position as if the law or regulatory change had not occurred. In the
event that this Agreement cannot be changed to restore the parties
substantially to the status quo ante, either party may terminate this
Agreement.
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B.
Modifications, Consents and Waivers. No failure or delay on the part of
either party in exercising any power or right hereunder or under
any other document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power preclude any other or
future exercise thereof or the exercise of any other right or power. No
amendment, modification or waiver of any provision of this Agreement, nor
consent to any departure by any party therefrom, shall be effective except
in the specific instance and for the purpose for which given. Except as
otherwise provided in any document, no notice to or demand on a party in
any case shall entitle that party to any other or future notice or demand
in similar or other circumstances.
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C. Notices.
Written notice shall be deemed given on the day sent by facsimile to the facsimile
numbers given below with hard copy mailed by regular U.S. Mail to the
addresses as follows:
|
If to
MCI: MCI
Telecommunications Corporation
CARRIER
MANGEMENT
1650 TYSONS
BLVD
McLEAN,
VA 22102
Attn: Donald T. Lynch
With copy to: ATTN:
General Counsel
Fax: (202)
887-2195
If
to
GCI: General
Communication, Inc.
2550 Denali
Street, Suite 1000
Anchorage,
Alaska 99503-2781
ATTN: General
Manager
Page 8
With copy to: ATTN:
Director Carrier Relations
Fax: (907)
265-5676
A party may change
the address, person and facsimile number by written notice to the other
party.
D.
Confidentiality. Neither party shall disclose to any third party during the
service term, any renewal term and the three (3) year period after termination,
any of the terms and conditions set forth in this Agreement unless such
disclosure is required to be disclosed by law or is necessary in any legal
proceeding establishing rights and obligations under this
Agreement.
E.
Rule of Construction. All parties to this Agreement have been represented
by
separate counsel,
or have been afforded the opportunity thereof, and all terms and conditions
herein have been negotiated at arms' length. Given the above and
the
consideration
provided within this document, the rule of strict construction,
which
construes the
document against the drafter, is waived in its entirety by all parties and shall
not apply.
F.
Binding Effect and Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective permitted successors
and
assigns. Neither
party may assign or transfer any part of this Agreement without the other
party's prior written consent, except that either party may assign this
Agreement in part or all to an affiliate. An affiliate for this purpose is an
entity controlling, controlled by or under common control with the assigning
party. Any attempted assignment not conforming with this provision shall be
void.
G.
Entire Agreement. This Agreement and the other documents described
herein
sets forth the
entire agreement between the parties, supersedes all prior
communications and
understandings of any nature, and may not be supplemented or altered orally. In
the event of a conflict between the provisions of this Agreement and any of the
other documents, the provisions of this Agreement shall control.
H.
Governing Law. This Agreement and the other documents shall be deemed to be
contracts under the laws of the State of New York and for all purposes shall
be
construed in
accordance with and governed by substantive laws of said State.
1. Headings.
Articles and section headings used in this Agreement are for
convenience only
and shall not affect the construction of this Agreement.
1. Execution in
Counterparts. This Agreement may be executed by the parties hereto individually
or in separate counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same document.
Page 9
This Agreement is executed as of the date set forth above.
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MCI
TELECOMMUNICATIONS
|
|
GCI
COMMUNICATION CORP.
|
|
CORPORATION
|
|
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By:
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/s/ Donald T.
Lynch
|
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By:
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/s/ Wilson
Hughes
|
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|
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|
Donald T.
Lynch
|
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|
Wilson
Hughes
|
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|
Printed
Name
|
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|
Printed
Name
|
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Title:
|
Vice
President
|
|
Title:
|
Executive
V.P. & General Manager
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Page 10