Global Services Agreement - NASDAQ Stock Market Inc. and MCI WorldCom Communications Inc.

SCHEDULE FIVE


NASDAQ CORPORATE NETWORK

SCOPE AND SPECIAL TERMS


(A Fully Managed Network Solution)


1.   Scope of  Services.  Company will provide to Customer a managed frame relay network (hereafter referred to as the “Nasdaq Corporate Network”), including access circuits, Company frame relay ports and PVCs (service option 2), internet access ports and PVCs, related equipment and associated network management services all as further described in this Schedule. The WorldCom Frame Relay service (service option 2) and dedicated access services are provided subject to the additional terms and conditions set forth in the GSA and Schedule Three.   The customer premise equipment for the Nasdaq Corporate Network is provided subject to the additional terms and conditions set forth in Attachment 5-3 to this Schedule Five (Equipment and Related Services) attached hereto.   Any dedicated internet access services are provided subject to the additional terms and conditions set forth in [the Internet Services Agreement between Customer and MCI signed by Customer on **** as amended, and individual service order forms signed by Customer.  All of the aforementioned provisions are intended to supplement each other to the greatest extent possible, however, in the event of a conflict between the terms of Schedule Five and any of the aforementioned provisions with respect to the Nasdaq Corporate Network, this Schedule Five shall govern.


2. Implementation;  Schedule Five Term.


2.1     Company shall implement the Nasdaq Corporate Network pursuant to a mutually agreeable implementation schedule to be agreed by the parties in writing.  The configuration of the network facilities will be as  set forth in Attachment 5-1.  As between Company and Customer, Company shall retain title to all customer premise equipment provisioned by Company at Customer sites for the Nasdaq Corporate Network.


2.2     The term of this Schedule shall begin on the First Amendment Effective Date and shall continue for****   (the “Schedule Five Term”). The first ****of the Schedule Five Term will be treated as  a “Ramp Period” during which the NCN Subminimum (as defined in Section 3.3 below) will not apply, however the other rates and charges set forth in this Schedule Five will apply.   If the Term of the Agreement expires before the expiration of the Schedule Five Term, the terms and conditions of the Agreement shall continue to control and apply to this Schedule until the end of the Schedule Five Term.  For the avoidance of doubt, the Schedule Five Term expires on ****.


3.       Rates and Charges.


3.1  Summary of Total Rates and Charges.   The Base Rates applicable to Customer for The Nasdaq Corporate Network are summarized below.  The Base Rates are effective on the First Amendment Effective Date and are fixed for the Term.


Pricing
Site


Monthly
Recurring Charge


Non-Recurring
Installation






1) Rockville, MD


****


****

2) Trumbull, CT


****


****

3) One Liberty Plaza


****


****

4) Four Times Square


****


****

5) Blackwell Bldg, MD


****


****

6) 1801 “K” St., D.C.


****


****

7) Sand Hill Rd., CA


****


****

8) 55 Monroe St., Chicago, IL


****


****






Total:



****


****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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*Note:  Dedicated internet access circuits will be provisioned pursuant to individual service order forms showing    applicable charges of ****, since all   charges for such services, as specified herein, are included in the pricing set forth above and billed under this Agreement.


3.2     Regulated Interstate Services Component. The monthly recurring charges set forth in Section 3.1 above are inclusive of the following rates for interstate Regulated Services:


Interstate Regulated Services


Site


Component of the Monthly Recurring Charge




1) Rockville, MD


****

2) Trumbull, CT


****

3) One Liberty Plaza


****

4) Four Times Square, NYC


****

5) Blackwell Bldg, Rockville, MD


****

6) 1801 “K” St., Wash. D.C.


****

7) Sand Hill Rd., CA


****

8) 55 Monroe St., Chicago,  IL


****




Total



****

 

The charges described in this Section 3.2 constitute a “Specialized Customer Arrangement” or “SCA” as defined in   the Guide.  Capitalized terms not otherwise defined in this Agreement shall have the definition given to them in the Tariff.


3.3     During each Monthly Period in the Schedule Five Term after the Ramp Period (as defined in Section 2.2 above), Customer must incur no less than **** in monthly recurring charges under this Schedule Five (“NCN Subminimum”).  For any Monthly Period in the Schedule Five Term after the Ramp Period in which Customer fails to satisfy the NCN Subminimum, Customer shall pay Company an amount equal ****.


4.   Service Level Agreements:   The Service Level Agreement for WorldCom Frame Relay as set forth in the Guide, as well as the Nasdaq Corporate Network Availability SLA set forth in Attachment 5-2, shall apply to the WorldCom Frame Relay (Service Option 2) service provided hereunder.


5.   Orders For Service:  Orders for installation, changes or disconnects shall be provided to Company by Customer.


6.   Installation: The term “Installation shall mean the carrying out and completion of all work (including, but not limited to, procurement of any piece of hardware or software used by Company to provide Service as contemplated



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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under this Agreement [each, a “Component”], site surveys, scheduling, physical and logical connection of all Components to the Service to ensure that Customer’s locations and each Subscriber’s locations are fully integrated into the Nasdaq Corporate Network, testing, and correction of any problems which cause the Service not to operate in accordance with Company’s standard specifications) at a location at which the Service is contemplated to be provided under this Agreement.  The parties will agree on an Installation schedule which is subject to change by mutual agreement of the parties. After completion of work associated with an Installation, Company shall ensure that the exterior of Components and the surrounding areas are clean and that all discarded parts, supplies and other waste is removed from the premises.


7.   Installation Acceptance.  Customer will have a period of **** after Installation notification hereunder in which to notify Company of service troubles.  Failure to notify Company of service troubles within **** after Installation notification constitutes acceptance of the circuit(s) from the first day of notification.  Company will use commercially reasonable efforts to rectify service troubles promptly.  Charges will not apply pending repair of service troubles associated with Installation. Troubles on such circuits must be reported on a circuit specific basis to Company support center.


8.   Customer’s Termination Liability.   If (a) Customer terminates either the Nasdaq Corporate Network, or this Agreement, prior to the end of the Schedule Five Term other than due to an uncured breach by Company of a material term hereunder, a final order by the SEC that requires Customer to permanently discontinue the Nasdaq Corporate Network, or other than as Customer is expressly permitted herein to terminate without liability, or (b) Company terminates this Agreement early as permitted under Section 12.1, Subsections 12.2(e) or (f), or Section 12.3, Customer will pay, in addition to all accrued but unpaid charges and liabilities incurred through the date of such termination:  (i) any and all credits received by Customer hereunder for the Nasdaq Corporate Network (except service interruption credits, if any), in full, without setoff or deduction; plus (ii) an amount equal to **** of the product of (a) the total monthly recurring charge for the Nasdaq Corporate Network incurred by Customer in the month preceding the month of termination,  multiplied by (b) the number of unsatisfied months (prorated for partial months) remaining in the Schedule Five Term on the date of termination; plus (iii) the aggregate termination charges payable to any  non-U.S. third party suppliers, if any, for which Company is or becomes contractually liable to the extent directly resulting from such termination.  Upon written request of Customer, Company will use its reasonable efforts to identify in advance any such termination charges payable to third party suppliers.


  9.     DS3 Management. Company will proactively monitor the DS3’s between the 3 core sites of RKH, MER and NYH.  The Customer will provide “user accounts” for the 3 IGX CISCO Switches for this purpose.  Each of these “user accounts” will have the ability to perform “status”, “diagnostic” and “loopback” commands only for the purposes of troubleshooting DS3 issues.  In addition, the Customer will provide SNMP statements which enable the IGX CISCO Switches to send unsolicited SNMP TRAPS to the Company NCC network management stations.


10.     Design Changes. Subject to Customer’s satisfaction of the NCN Subminimum, during the Term Nasdaq may modify the Nasdaq Corporate Network design and replace existing Services with new or existing Services generally offered by Company.  Any such modification would be reflected in a mutually acceptable amendment to this Agreement.


11.     Customer-Purchased CPE.  Customer premise equipment required for the Nasdaq Corporate Network other than that provided by Company pursuant to Attachment 5-3 may be purchased by Customer through Company pursuant to a separate agreement or from another third-party supplier.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.



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ATTACHMENT  5-1


SITE CONFIGURATION DETAILS


1) Rockville, MD (Type **** access)

****

****

****

****

****

****

****

****

****

****

****

****

****

****


2) Trumbull, CT (Type **** access)

****

****

****

****

****

*****

****

****

****

****

****

****

****

****


3) One Liberty Plaza,  NY, NY

****

****

****

****

****

****


4) Four Times Square, NY, NY


****

*****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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5) Blackwell Bldg, Rockville, MD

****

****

****

****


6) 1801 “K” St., Wash. D.C.

****

*****


7) Sand Hill Rd. Melno Park, CA

****

****

****

****

****

****

****

****


8) 55 West Monroe Chicago, IL

****

*****

****

****

****

****

****

*****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.



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ATTACHMENT 5-2


NASDAQ CORPORATE  NETWORK

Network Availability SLA


The following is a description of the Nasdaq Corporate Network SLA:


1.       Principal Period of Maintenance.  ****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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Attachment 5-3

 

 EQUIPMENT AND RELATED SERVICES

FOR THE NASDAQ CORPORATE NETWORK

 

Company’s provision of domestic customer premise equipment and related maintenance, monitoring and management services ordered by Customer in connection with the Nasdaq Corporate Network (described on Schedule Five above) shall be subject to the terms and conditions set forth in this Schedule as supplemented by the Master Terms and Conditions set forth in the GSA and Schedule Five.


1.        PROVISIONING OF CPE.


1.1     Company agrees to provide to Customer the items of CPE (including related cables and connectors) identified in Section I of Annex A to Attachment 5-3 attached hereto (the “Equipment Schedule”) (collectively and individually, the “Company Equipment”).  Customer agrees to separately obtain the items of CPE (including related cables and connectors) identified in Section II of Annex A to Attachment 5-3 attached hereto (collectively and individually, the “Customer Equipment”; the Company Equipment and Customer Equipment are collectively referred to hereafter as the “Equipment”). The Equipment is associated with Company telecommunications services provided to Customer.  The Equipment Schedule shall be amended to include any additional equipment added hereto by written agreement of both parties.  Company Equipment will be new unless it can be provided from existing Company inventory that meets the specifications and standards  set forth in the Equipment Schedule.


1.2     The Equipment Schedule shall be amended to include any additional equipment added hereto by written agreement of both parties.


2.        MAINTENANCE.


2.1     Company’s Responsibilities:


A.       Subject to the terms of this Agreement, Company agrees to install and maintain the Company Equipment and Customer Equipment. Company has the exclusive right to maintain such Company Equipment and Customer Equipment.


B.       Company shall install the Company Equipment and Customer Equipment at each location(s) as may be set forth in the Equipment Schedule or separately agreed to by the parties and, as agreed by the parties in writing, any additional sites designated for additional items of Company Equipment and Customer Equipment (collectively, the “Installation Sites”).


C.       Company shall provide, on a commercially reasonable basis, maintenance service, as more fully described in Section 2.1.D (“Maintenance Service”), on the Company Equipment and Customer Equipment.  In performing its maintenance obligation, Company may, in its discretion, seek and obtain the assistance of contractors or the vendors or manufacturers of the Company Equipment and Customer Equipment maintained hereunder for which Company shall be responsible.


D.        Maintenance Service, as defined herein, includes the following:


(1)      Use commercially reasonable efforts to isolate any problems with the Equipment and to restore service within the Equipment Mean Time To Repair (as defined below) following receipt of Customer’s notification that the Equipment is inoperative.


(2)      Investigate trouble reports initiated by Customer and repair or replace, at Company’s sole discretion, any of the Company Equipment  which fails to meet the manufacturer’s published operating specifications for the Company Equipment  during the term of this Agreement.


(3)      Perform work in a good and workmanlike manner.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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(4)      Provide interconnecting cables from the Company/Local Exchange Carrier (“LEC”) demarcation line to the Equipment, interconnecting cables among the Equipment, and interconnecting cables from the Equipment to the Company/Customer demarcation line; provided, however, that Company shall not be required to provide cables through Customer “in-house” wiring conveyances unless Customer further agrees in writing to pay Company, in accordance with an Company provided quote, an additional installation fee for such services.


(5)      If Company, in its sole discretion, determines that a unit of Company Equipment  needs to be replaced, such Company Equipment  will be replaced with equipment of like kind and functionality from a manufacturer of Company’s choice at the time of replacement (“Exchange Unit”).  The Exchange Unit may not be new but will be in good working order and of like kind and functionality.  The replaced unit will be returned to Company’s inventory at Company’s expense.


Should the Equipment be owned by Customer and the parties mutually agree in writing that the Customer Equipment needs to be replaced then Customer will obtain replacement of such Customer Equipment, unless otherwise agreed by Company and Customer.  With respect to Company Equipment only, the replaced unit will be returned to Company’s inventory at Company’s expense.  If Customer requests that Company maintain any Equipment that is not ordinarily supported by Company, Customer will be responsible for upgrading the subject Equipment to satisfy   Company specifications and for any upgrade or other fees charged by the manufacturer or supplier of the Equipment, all as will be agreed by the parties in writing in advance.   Company will advise Customer of such specifications.


(6)      Company will maintain a standard Cisco router IOS version for all Cisco routers in the Nasdaq Corporate Network upon deployment.  As part of the ongoing maintenance, Company will work with Customer  on deploying new IOS versions as needed for new applications, patches and bug fixes.  Company will also maintain the associated software licensing as it relates to Company-owned equipment deployed in the Nasdaq Corporate Network.


E.        Maintenance Service shall not include or apply to the following:


(1)    Electrical work external to the Equipment or the Nasdaq Corporate Network, or otherwise considered “in-house wiring”.


(2)    Repair or replacement of failed Equipment caused by factors outside of Equipment or the Nasdaq Corporate Network, such as fire, accident, misuse, vandalism, water, lightning, or failure of its installation site to conform with Company’s specifications (except where such event is due to  Company’s negligent acts or omissions).


(3)    Use of the Equipment for other than the intended purpose.


(4)    Repair of damage caused by the maintenance or repairs performed by a person other than an Company employee or person authorized by Company.


(5)    Supplies, accessories, painting, or refurbishing of the Equipment.


(6)    Relocation, additions, or removal of Equipment, parts, or addition or removal of features not furnished by Company or use of Equipment with other equipment that fails to conform to Company’s specifications.


(7)    Cables and connectors between the Equipment and any other equipment on Customer’s or Subscriber’s premises after the expiration of the limited cable and connector warranty set forth in the Section hereof entitled “Limitation of Liability and Limited Warranty”.


(8)    Power or back-up power to or from the Equipment.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


77




F.        Company’s Equipment Mean Time To Repair (“MTTR”) is defined as the average time elapsed from the time Company detects or is notified of a failure of Equipment or other degradation in performance of the Equipment covered by this Agreement until such time as the Equipment’s performance is restored to its prior functionality by replacing (either temporarily or permanently) or repairing the failed Equipment.


For failures occurring at locations which are within a sixty (60) mile  radius of an Company authorized service center in the United States, the MTTR objective shall be within **** after the first to occur of Company’s receipt of notice or its detection, ****.  For failures at all other locations in the contiguous****, the MTTR objective shall be within ****after the first to occur of Company’s receipt of notice or its detection, ****.


For any calendar month in which Company fails to meet the MTTR, Company shall issue to Customer a credit equal to the product of:  (a) The number of all sites affected by Equipment failures during such month multiplied by (b) an amount equal to a ****of the affected site’s monthly recurring charge specified in Section 3.1 of Schedule Five for each day (or portion thereof) on which the failure existed.  In no event, however, shall the amount of this credit in any month exceed ****of the total monthly recurring charge for such site incurred under Schedule Five for such month.


The foregoing credits shall not apply with respect to: (a) Equipment failures caused by Customer or third parties not under the direction or control of Company, (b) Equipment performance degradation of ****as compared to normal operating performance, (c) scheduled maintenance, and (d) failures caused by force majeure events generally affecting Customer’s site.  The foregoing credits shall be Customer’s sole and exclusive remedy with respect to Company’s failure to meet the MTTR.


2.2.      Customer’s Responsibilities.  The following are requirements and responsibilities of Customer:


A.       Provide Company with immediate access to the Equipment twenty-four (24) hours per day, seven (7) days per week, during the Term in order to meet the MTTR objectives.


B.       Report detected Equipment failures and provide information requested by Company, its contractors, or Company’s designated point of contact, that is necessary or useful for Company to perform its obligations hereunder.


C.       Provide Company and its contractors with access to facilities, overhead and under floor cable ducts, Installation Sites and equipment as may be necessary or useful for Company to perform its obligations hereunder, including but not limited to the Equipment.


D.        Promptly endorse Customer’s name upon any Uniform Commercial Code filings reasonably necessary to protect Company’s, its contractor’s or assignee’s interest, if any, in Company Equipment, which shall not be unreasonably withheld or delayed.


E.        Obtain, as may be necessary, all permits, licenses, variances and other authorizations required by state and local jurisdictions for installation and operation of the Equipment.


F.        Provide adequate building, space, circuitry, and power in accordance with the standards established by Company for proper installation and operation of the Equipment.  Such standards are more fully described in the attached Equipment Schedule.


G.       Ensure that adequate back-up power to the Equipment exists in the event of a power failure, interruption or outage.


H.        Ensure that all of its electronic files are adequately duplicated and documented at all times.  Company and its contractors will not be responsible or liable for any   failure by Customer or any Subscriber to adequately duplicate or document files or for data or files lost during the course of performance of Maintenance Services hereunder.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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I.       Provide a well-lighted and safe working area that complies with all local safety standards and regulations for Company employees and contractors.


J.        Provide Company employees and contractors with proper security clearances as required.  If security passes are required for the Company employee or contractor or the equipment brought with such person, Customer or the applicable Subscriber must be available to provide all required badges, passes, etc. at the time the Company employee or contractor arrives at the site.


K.        Ensure that any failed unit of equipment that is to be exchanged pursuant to Section 2.1(d)(5) is free of any encumbrances at the time of replacement by Company.  Customer further agrees to remove all external attachments or objects from the unit of equipment to be replaced before the time of exchange.  Customer forfeits all rights to any such items not removed.


L.        Execute a Letter of Authorization sufficient to provide Company with control of acquisition and management of Customer’s LEC access facility for the purpose of enabling Company to perform its services under this Agreement.


3.        MANAGEMENT AND MONITORING.


3.1    Company will provide remote monitoring and management of the Nasdaq Corporate Network routers described in Annex A to Attachment 5-3 twenty our hours per day, seven days per week, 365 days per year.

•    Respond to real time alerts in accordance with procedures established with Customer.

•    Isolate cause of fault within the wide area network.

•    Take corrective action to fix any circuit related issue, including the dispatch of third party vendors or service providers.

•    Track and maintain ownership of circuit fault until resolution, and provide a technical point of contact.

•    Provide technical escalation to support groups directly responsible for circuit fault correction.

•    Confirm resolution of circuit fault trouble.


Note:  Modems are required at each Customer location for redundant access to the CPE for management purposes.  Company shall not be responsible for provisioning these modems.


4.        INSURANCE.


Beginning on the installation date thereof and continuing until the Company Equipment  is deinstalled by, or otherwise returned, to Company or Company’s designee, Customer  (x) relieves Company of responsibility for all risks of physical damage to or loss or destruction of the Company Equipment , except to the extent proximately caused by Company’s (or its independent/sub contractor’s or agent’s) negligence or willful tortious misconduct, and (y) shall, at its own expense, keep in effect property insurance policies covering the Company Equipment  for loss or damage (other than normal wear and tear) caused by individuals or entities other than Company, its agents or independent/sub  contractors in accordance with the requirements of this provision. The property insurance policy shall be for an amount not less than the replacement cost of the Company Equipment .  The property insurance requirements can be met under Customer’s blanket policies. Company, its successors and assigns and/or such other party as may be designated in writing, shall be named as loss payees on such policy(ies), which shall be written by an insurance company with a Best rating of A minus or higher and financial rating of VII or better.  Evidence of such insurance coverage shall be furnished to Company from time to time (but no more than once every 12 months) at Company’s request and upon any change in the insurance carrier or upon renewal.  Such policies shall provide that no less than ten (10) days’ written notice shall be given Company and any other party named as loss payee prior to cancellation of any such policies for any reason.


Company shall maintain Commercial Liability Insurance in accordance with Section 22 of the GSA with respect to its liability for physical damage to or loss or destruction of the Company Equipment  proximately caused by any of them. Customer, its successors and assigns and/or such other party as may be designated in writing, shall be named as additional insureds on such policy(ies), which shall be written by an insurance company with a Best rating of A minus or higher and financial rating of VII or better. Evidence of such insurance coverage shall be furnished to Customer from time to time (but no more than once every 12 months) at Customer’s request and upon any change in the insurance



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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carrier or upon renewal. Such policies shall provide that no less than ten (10) days’ written notice shall be given Customer and any other party named as additional insureds prior to cancellation of any such policies for any reason.


5.        CHARGES FOR NASDAQ CORPORATE NETWORK  EQUIPMENT.


Customer may not withhold payment of the invoiced amount based on abatement, reduction, set-off, defense, counterclaim or recoupment in connection with any past, present or future claim Customer may allege against Company for charges not covered under this Agreement or against the manufacturer of any Equipment or any other third party.  In the event Company does not receive full payment of amounts that are not the subject of a bona fide dispute on or before the date on which such payment is due, Company, in its sole discretion, may assess an additional charge against Customer with respect to that portion of the amount due that is attributable to the equipment and services provided under this Attachment (i.e., the non-regulated services component of the total monthly recurring charge) in the amount of ****or the maximum rate allowed under applicable law, whichever is less, on any unpaid amounts.


6.        MOVES.


Customer shall not move or remove any item of Equipment without Company’s prior written consent.  In any event, Customer must advise Company in writing of the new location of any Equipment that is to be moved from its original installation location.


7.        TITLE AND RISK OF LOSS.  


Title to the Company Equipment  shall remain with Company.  Company shall bear the risk of loss or damage to the Equipment until delivery of the Equipment to the installation site; thereafter, Company shall bear no risk of loss or damage to the Equipment, unless such loss or damage is caused by Company’s negligence or intentional misconduct.  Customer shall bear risk of loss or damage to the Equipment located at Customer’s sites if such loss or damage is caused by Customer’s negligence or intentional misconduct, or an event covered by Customer insurance coverages described in Section 4 above (e.g., fire).   Customer (a) shall provide notice of loss or damage to the Equipment reasonably promptly after Customer receives notice of such loss or damage, and (b) shall not do anything inconsistent with Company’s interest, if any, in the Company Equipment .


8.        ORDER CHANGES.


If the Equipment needs to be changed to meet the requirements for interfacing with the Customer applications, Customer equipment, or systems, Customer agrees that it will  (i) cooperate with Company to make such required Equipment changes, (ii) amend the attached Equipment Schedule to reflect such changes, and (iii) pay to Company mutually agreed fees or charges that may be incurred.


9.        LIMITATION OF LIABILITY AND LIMITED WARRANTY.


A.   Company warrants that any cables and connectors between the Company Equipment  and any other equipment on Customer’s premises that are provided by Company will be in good working order for a period of ****after installation, except in the case of failure of such cables and connectors caused by Customer’s misuse or abuse.


B.   EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL EQUIPMENT PROVIDED BY COMPANY IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY EQUIPMENT, MAINTENANCE SERVICE OR RELATED PRODUCT OR DOCUMENTATION.  COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ALLEGED VIOLATIONS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY EQUIPMENT EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE ACTS OR OMISSIONS OF COMPANY OR ITS INDEPENDENT/SUB CONTRACTORS OR AGENTS.  NOTWITHSTANDING THE FOREGOING,



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR DIMINISH THE WARRANTIES AND SUBLICENSES, IF ANY OF THE EQUIPMENT MANUFACTURER, WHICH PASS THROUGH COMPANY AND INURE TO THE BENEFIT OF CUSTOMER AND USERS.


10.     TERMINATION.


A.   Upon termination of this Agreement, Company shall have the right to exercise one or more of the following remedies set forth below, in addition to any other remedies Company may exercise, in law or equity.  Company may:


(1)      recover all amounts due and unpaid, and


(2)      repossess any Company Equipment.


B.   Customer, at its sole expense, shall be responsible for removing all Customer Equipment from Company’s terminal and depot locations as soon as reasonably practical after termination of this Agreement.


C.   Within thirty (30) days after the expiration or termination of the Agreement, Company shall remove the Company Equipment.  Company Equipment  shall be in good condition and repair, reasonable and proper depreciation excepted.  Customer shall be liable for any loss or damage to the Company Equipment  resulting from theft, disappearance, fire or any other cause unless such loss or damage was proximately caused by the acts or omissions of Company or its independent/sub contractors, representatives or agents.  For each item of Company Equipment  not recoverable by Company through no fault of its own, within the thirty (30) day period, Customer shall be deemed to have purchased such Company Equipment  and shall pay Company the replacement cost, plus any additional costs incurred by Company in replacing the Company Equipment .


11.     EXPORT AND LEGAL COMPLIANCE .


Customer acknowledges that certain equipment, software and technical data which may be provided hereunder may be subject to export and re-export controls under the U.S. Export Administration Regulations and/or similar regulations of the U.S. or any other country.  Customer shall not export or re-export any such equipment, software, technical data or any direct product thereof in violation of any such laws.  Customer shall comply with all laws and regulations, including but not limited to import and custom laws and regulations.


12.     ORGANIZATION CHANGES.


Each party shall use reasonable efforts to provide the other party with written notice of any change to the party’s (and  in the case of Customer, any Subscriber’s) name, identity or fundamental structure within thirty (30) days after such change.


13.     RIGHT OF REFUSAL.


Each party reserves the right to refuse to install or maintain any equipment, if in that party’s sole discretion, installation of such equipment could cause harm to the Nasdaq Corporate Network or if the equipment that the other party desires Company to maintain is considered by Company or Customer to be non-standard equipment.  If Company refuses to install or maintain any equipment, then the exclusive right granted to Company to maintain the equipment shall not apply to the equipment giving rise to such refusal.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.



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ANNEX A TO


ATTACHMENT 5-3

EQUIPMENT SCHEDULE FOR NASDAQ CORPORATE  NETWORK


I.   Company Equipment


Quantity


Make/Model


Location


Serial Numbers








****


****


Rockville, MD


[To Be Determined]








****


****


Trumbull, CT




II.  Customer Equipment


Quantity


Make/Model


Location


Serial Numbers








****


****


Rockville, MD


[To Be Determined]

****


****












****


****


Trumbull, CT










****


****


OLP Broadway, NY, NY



****


****


4 Times Square, NY, NY










****


****


Blackwell Bldg, Rockville, MD










****


****


K Street, Washington DC










****


****


Sand Hill Rd., Menlo Park, CA










****


****


55 Monroe St., Chicago, IL





* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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SCHEDULE SIX


Usage Associated With Facilities Construction


Customer desires that Company construct, configure or install necessary equipment and/or facilities from   Company’s network to Customer’s premises (“Facilities”) to provide Services under this Schedule Six (“Services” for purposes of this Schedule) to certain site(s) operated by Customer as set forth in Attachment 6-1 (the “Location(s)”).    Company requires Customer’s commitment to generate a certain minimum amount of usage at the Location(s)  in order to justify the capital expenditure necessary to construct, configure or install the Facilities.


1.   SERVICE TERMS AND CONDITIONS: The term of this Schedule shall begin on the First Amendment Effective Date and shall continue until expiration of the last of the Location Term commitments as defined in Attachment 6-1 (the “Schedule Term”).


2.  FACILITIES:  Customer understands and agrees that the Facilities are and shall remain the sole property of   Company and nothing herein shall be construed to convey to Customer any rights or privileges to the Facilities either directly or indirectly through Customer’s commitment.  Customer shall conduct its business relative to these Facilities consistent with Company’s sole ownership of these Facilities.  Customer understands and agrees that construction of the Facilities is dependent upon (i) obtaining all necessary rights, permits, licenses, easements, and rights of way at the Locations, including adequate space, power and environmental clearances; and (ii) securing the right for Company to install, operate and maintain its equipment at the Location(s).  Customer may be requested to sign a collocation agreement with Company for each Location in a form and substance satisfactory to Customer and   Company.


3.  LOCATION SPECIFIC SUBMINIMUMS:


a.  At each Location, in addition to any volume commitments set forth in the Agreement, commencing on the Location Term, Customer guarantees the minimum Usage Charges (for each Location, a “Location Subminimum”) and the Location Term commitments for the Services as set forth in Attachment 6-1.  For purposes hereof, the Location Term for each location shall commence on the date on which the Location is “Lit” and ready to utilize the Services.  A “Lit” building is defined as a facility where Company fiber is demarcated.  If the Term of the Agreement expires before the expiration of the Location Term commitments set forth for all Location(s) under this Schedule, the terms and conditions of the Agreement (including applicable rates and charges for Services at each Location) shall continue to control and apply to this Schedule until the end of the Schedule Term.


b.  Company does not guarantee that any specific Location build-out will be completed, or will be completed within a certain time period.  Company reserves the right to: (i) delay or discontinue the build-out of any Location, (ii) decline to provide Service in one or more Locations and (iii) terminate Customer’s use of Service at one or more Locations. The exercise of any such right shall be in Company’s sole discretion and without liability to Customer. In such event, and as Customer’s sole remedy, Customer’s Location Subminimum for such Location will not apply, and Customer will not be responsible for the Location Subminimum underutilization charges for such Location until the first full Monthly Period following the completion of the build-out.


c. If, in any Monthly Period, Customer’s Usage Charges for Services at a Location are less than the applicable Location Subminimum, then Customer will pay an underutilization charge equal to the difference between the Location Subminimum and Customer’s Usage Charges at the Location during such Monthly Period. Customer agrees that these charges are reasonable.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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Attachment 6-1

 

Locations and Location Subminimums

 

Location


Location Subminimum


Location Term






1500 Broadway





New York, New York






The Parties agree that the Broadway Location subminimum as detailed by the [First Amendment?] shall be discontinued and Customer shall have no further financial obligation for that subminimum upon MCI’s receipt of a **** payment from Customer.  Customer shall make this payment in accordance with the Payment of Invoices subsection 8.1 of the Agreement



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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SCHEDULE SEVEN

 

EQUIPMENT AND RELATED SERVICES

 

Company’s provision of domestic customer premise equipment and related maintenance, monitoring and management services ordered by Customer as set forth in Attachment 7-1 shall be subject to the terms and conditions set forth in this Schedule Seven as supplemented by the Master Terms and Conditions set forth in the GSA.


1.        PROVISIONING OF CPE.


1.1     Company agrees to provide to Customer the items of customer premises equipment  (including related cables and connectors)Attachment 7-1  (collectively and individually, the “Equipment”). This Equipment is associated with Company telecommunications services provided to Customer.    Equipment will be new unless it can be provided from existing Company inventory that meets the specifications and standards  set forth in the Equipment Schedules.


1.2     The Equipment Schedules shall be amended to include any additional Equipment added hereto by written agreement of both parties.


2.        MAINTENANCE.


2.1 Company’s Responsibilities:


A.       Subject to the terms of this Agreement, Company agrees to install and maintain the Equipment. Company has the exclusive right to maintain such Equipment.


B.       Company shall install the Equipment at each location(s) as may be set forth in the Equipment Schedules or separately agreed to by the parties and, as agreed by the parties in writing, any additional sites designated for additional items of Equipment (collectively, the “Installation Sites”).


C.       Company shall provide, on a commercially reasonable basis, maintenance service, as more fully described in Section 2.1.D (“Maintenance Service”), on the Equipment.  In performing its maintenance obligation, Company may, in its discretion, seek and obtain the assistance of contractors or the vendors or manufacturers of the Equipment maintained hereunder for which Company shall be responsible.


D.        Maintenance Service, as defined herein, includes the following:


(1)      Use commercially reasonable efforts to isolate any problems with the Equipment and to restore service within the Equipment Mean Time To Repair (as defined below) following receipt of Customer’s notification that the Equipment is inoperative.


(2)      Investigate trouble reports initiated by Customer and repair or replace, at Company’s sole discretion, any of the Equipment which fails to meet the manufacturer’s published operating specifications for the Equipment during the term of this Agreement.


(3)      Perform work in a good and workmanlike manner.


(4)      Provide interconnecting cables from the Company/Local Exchange Carrier (“LEC”) demarcation line to the Equipment, interconnecting cables among the Equipment, and interconnecting cables from the Equipment to the Company/Customer demarcation line; provided, however, that Company shall not be required to provide cables through Customer “in-house” wiring conveyances unless Customer further agrees in writing to



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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pay Company, in accordance with an Company provided quote, an additional installation fee for such services.


3.        If Company, in its sole discretion, determines that a unit of Equipment owned by Company  needs to be replaced, such Equipment will be replaced with equipment of like kind and functionality from a manufacturer of Company’s choice at the time of replacement (“Exchange Unit”).  The Exchange Unit may not be new but will be in good working order and of like kind and functionality.  The replaced unit will be returned to Company’s inventory at Company’s expense.


Should the Equipment be owned by Customer and the parties mutually agree in writing that the Equipment needs to be replaced then Customer will obtain replacement of such Equipment, unless otherwise agreed by Company and Customer.  With respect to Equipment owned by Company only, the replaced unit will be returned to Company’s inventory at Company’s expense.  If Customer requests that Company maintain any Equipment that is not ordinarily supported by Company, Customer will be responsible for upgrading the subject Equipment to satisfy   Company specifications and for any upgrade or other fees charged by the manufacturer or supplier of the Equipment, all as will be agreed by the parties in writing in advance.   Company will advise Customer of such specifications.


Company will maintain a standard Cisco router IOS version for any Cisco routers provided under this Schedule upon deployment.  As part of the ongoing maintenance, Company will work with Customer  on deploying new IOS versions as needed for new applications, patches and bug fixes.  Company will also maintain the associated software licensing as it relates to Company-owned equipment deployed under this Schedule.


4.       Maintenance Service shall not include or apply to the following:


A. Electrical work external to the Equipment  or otherwise considered “in-house wiring”.


B. Repair or replacement of failed Equipment caused by factors outside of Equipment , such as fire, accident, misuse, vandalism, water, lightning, or failure of its installation site to conform with Company’s specifications (except where such event is due to  Company’s negligent acts or omissions).


C. Use of the Equipment for other than the intended purpose.


D. Repair of damage caused by the maintenance or repairs performed by a person other than an Company employee or person authorized by Company.


E. Supplies, accessories, painting, or refurbishing of the Equipment.


F. Relocation, additions, or removal of Equipment, parts, or addition or removal of features not furnished by Company or use of Equipment with other equipment that fails to conform to Company’s specifications.


G. Cables and connectors between the Equipment and any other equipment on Customer’s or Subscriber’s premises after the expiration of the limited cable and connector warranty set forth in the Section hereof entitled “Limitation of Liability and Limited Warranty”.


H. Power or back-up power to or from the Equipment.


5.       Company’s Equipment Mean Time To Repair (“MTTR”) is defined as the average time elapsed from the time Company detects or is notified of a failure of Equipment or other degradation in performance of the Equipment covered by this Agreement until such time as the Equipment’s performance is restored to its prior functionality by replacing (either temporarily or permanently) or repairing the failed Equipment.


For failures occurring at locations which are within a **** radius of an Company authorized service center in the United States, the MTTR objective shall be within **** after the first to occur of Company’s receipt of notice or its detection, ****.  For failures at all other locations in the****, the MTTR objective shall be within ****after the first to occur of Company’s receipt of notice or its detection, ****.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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For any calendar month in which Company fails to meet the MTTR, Company shall issue to Customer a credit equal to ****of the affected Equipment’s recurring charge specified in the applicable Attachment to this Schedule Seven for each day (or portion thereof) on which the failure existed.  In no event, however, shall the amount of this credit in any month exceed ****of the total monthly recurring charge for such affected Equipment incurred under Schedule Seven for such month.


The foregoing credits shall not apply with respect to: (a) Equipment failures caused by Customer or third parties not under the direction or control of Company, (b) Equipment performance degradation of ****as compared to normal operating performance, (c) scheduled maintenance, and (d) failures caused by force majeure events generally affecting Customer’s site.  The foregoing credits shall be Customer’s sole and exclusive remedy with respect to Company’s failure to meet the MTTR.


6.       Customer’s Responsibilities.  The following are requirements and responsibilities of Customer:


A.    Provide Company with immediate access to the Equipment twenty-four (24) hours per day, seven (7) days per week, during the Term in order to meet the MTTR objectives.


B.    Report detected Equipment failures and provide information requested by Company, its contractors, or Company’s designated point of contact, that is necessary or useful for Company to perform its obligations hereunder.


C.    Provide Company and its contractors with access to facilities, overhead and under floor cable ducts, Installation Sites and equipment as may be necessary or useful for Company to perform its obligations hereunder, including but not limited to the Equipment.


D.   Promptly endorse Customer’s name upon any Uniform Commercial Code filings reasonably necessary to protect Company’s, its contractor’s or assignee’s interest, if any, in the Equipment, which shall not be unreasonably withheld or delayed.


E.     Obtain, as may be necessary, all permits, licenses, variances and other authorizations required by state and local jurisdictions for installation and operation of the Equipment.


F.     Provide adequate building, space, circuitry, and power in accordance with the standards established by Company for proper installation and operation of the Equipment.  Such standards are more fully described in the attached Equipment Schedules.


G.    Ensure that adequate back-up power to the Equipment exists in the event of a power failure, interruption or outage.


H.   Ensure that all of its electronic files are adequately duplicated and documented at all times.  Company and its contractors will not be responsible or liable for any   failure by Customer or any Subscriber to adequately duplicate or document files or for data or files lost during the course of performance of Maintenance Services hereunder.


7.       Provide a well-lighted and safe working area that complies with all local safety standards and regulations for Company employees and contractors.


A. Provide Company employees and contractors with proper security clearances as required.  If security passes are required for the Company employee or contractor or the equipment brought with such person, Customer or the applicable Subscriber must be available to provide all required badges, passes, etc. at the time the Company employee or contractor arrives at the site.


B. Ensure that any failed unit of equipment that is to be exchanged pursuant to Section 3 is free of any encumbrances at the time of replacement by Company.  Customer further agrees to remove all external



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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attachments or objects from the unit of equipment to be replaced before the time of exchange.  Customer forfeits all rights to any such items not removed.


C. Execute a Letter of Authorization sufficient to provide Company with control of acquisition and management of Customer’s LEC access facility for the purpose of enabling Company to perform its services under this Agreement.


8.        MANAGEMENT AND MONITORING.   The following management and monitoring services will be provided for CPE provisioned under this Schedule only if indicated on the applicable Attachment to this Schedule Seven for such CPE.


Company will provide remote monitoring and management of the CPE 24 hours per day, seven days per week, 365 days per year.

•    Respond to real time alerts in accordance with procedures established with Customer.

•    Isolate cause of fault within the wide area network.

•    Take corrective action to fix any circuit related issue, including the dispatch of third party vendors or service providers.

•    Track and maintain ownership of circuit fault until resolution, and provide a technical point of contact.

•    Provide technical escalation to support groups directly responsible for circuit fault correction.

•    Confirm resolution of circuit fault trouble.


Note:  Modems are required at each Customer location for redundant access to the CPE for management purposes.  Company shall not be responsible for provisioning these modems.


9.        INSURANCE.


Beginning on the installation date thereof and continuing until the Equipment is deinstalled by, or otherwise returned, to Company or Company’s designee, Customer  (x) relieves Company of responsibility for all risks of physical damage to or loss or destruction of the Equipment, except to the extent proximately caused by Company’s (or its independent/sub contractor’s or agent’s) negligence or willful tortuous misconduct, and (y) shall, at its own expense, keep in effect property insurance policies covering the Equipment for loss or damage (other than normal wear and tear) caused by individuals or entities other than Company, its agents or independent/sub contractors in accordance with the requirements of this provision. The property insurance policy shall be for an amount not less than the replacement cost of the Equipment.  The property insurance requirements can be met under Customer’s blanket policies. Company, its successors and assigns and/or such other party as may be designated in writing, shall be named as loss payees on such policy(ies), which shall be written by an insurance company with a Best rating of A minus or higher and financial rating of VII or better.  Evidence of such insurance coverage shall be furnished to Company from time to time (but no more than once every 12 months) at Company’s request and upon any change in the insurance carrier or upon renewal.  Such policies shall provide that no less than ten (10) days’ written notice shall be given Company and any other party named as loss payee prior to cancellation of any such policies for any reason.


Company shall maintain Commercial Liability Insurance in accordance with Section 22 of the GSA with respect to its liability for physical damage to or loss or destruction of the Equipment proximately caused by any of them. Customer, its successors and assigns and/or such other party as may be designated in writing, shall be named as additional insureds on such policy(ies), which shall be written by an insurance company with a Best rating of A minus or higher and financial rating of VII or better. Evidence of such insurance coverage shall be furnished to Customer from time to time (but no more than once every 12 months) at Customer’s request and upon any change in the insurance carrier or upon renewal. Such policies shall provide that no less than ten (10) days’ written notice shall be given Customer and any other party named as additional insureds prior to cancellation of any such policies for any reason.


10.     CHARGES FOR EQUIPMENT.


The rates and charges for the Equipment are set forth in the applicable Attachment to this Schedule Seven.  Customer may not withhold payment of the invoiced amount based on abatement, reduction, set-off, defense, counterclaim or



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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recoupment in connection with any past, present or future claim Customer may allege against Company for charges not covered under this Agreement or against the manufacturer of any Equipment or any other third party.  In the event Company does not receive full payment of amounts that are not the subject of a bona fide dispute on or before the date on which such payment is due, Company, in its sole discretion, may assess an additional charge against Customer with respect to that portion of the amount due that is attributable to the equipment and services provided under this Schedule in the amount of ****or the maximum rate allowed under applicable law, whichever is less, on any unpaid amounts.


11.     MOVES.


Customer shall not move or remove any item of Equipment without Company’s prior written consent.  In any event, Customer must advise Company in writing of the new location of any Equipment that is to be moved from its original installation location.


12.     TITLE AND RISK OF LOSS.  


Title to the Equipment shall remain with Company.  Company shall bear the risk of loss or damage to the Equipment until delivery of the Equipment to the installation site; thereafter, Company shall bear no risk of loss or damage to the Equipment, unless such loss or damage is caused by Company’s negligence or intentional misconduct.  Customer shall bear risk of loss or damage to the Equipment located at Customer’s sites if such loss or damage is caused by Customer’s negligence or intentional misconduct, or an event covered by Customer insurance coverages described in Section 4 above (e.g., fire).   Customer (a) shall provide Company notice of loss or damage to the Equipment reasonably promptly after Customer receives notice of such loss or damage, and (b) shall not do anything inconsistent with Company’s interest, if any, in the Equipment.


13.     ORDER CHANGES.


If the Equipment needs to be changed to meet the requirements for interfacing with the Customer applications, Customer equipment, or systems, Customer agrees that it will  (i) cooperate with Company to make such required Equipment changes, (ii) amend the applicable Equipment Schedule(s) to reflect such changes, and (iii) pay to Company mutually agreed fees or charges that may be incurred.


14.     LIMITATION OF LIABILITY AND LIMITED WARRANTY.


A.   Company warrants that any cables and connectors between the Equipment and any other equipment on Customer’s premises that are provided by Company will be in good working order for a period of thirty (30) days after installation, except in the case of failure of such cables and connectors caused by Customer’s misuse or abuse.


B.   EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL EQUIPMENT PROVIDED BY COMPANY IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY EQUIPMENT, MAINTENANCE SERVICE OR RELATED PRODUCT OR DOCUMENTATION.  COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ALLEGED VIOLATIONS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY EQUIPMENT EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE ACTS OR OMISSIONS OF COMPANY OR ITS INDEPENDENT/SUB CONTRACTORS OR AGENTS (OTHER THAN ANY EQUIPMENT MANUFACTURER).  NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR DIMINISH THE WARRANTIES AND SUBLICENSES, IF ANY OF THE EQUIPMENT MANUFACTURER, WHICH PASS THROUGH COMPANY AND INURE TO THE BENEFIT OF CUSTOMER AND USERS.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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15.     TERMINATION.


A.   Upon termination of this Agreement, Company shall have the right to exercise one or more of the following remedies set forth below, in addition to any other remedies Company may exercise, in law or equity.  Company may:


(1)      recover all amounts due and unpaid, and


(2)      repossess any Equipment owned by Company.


B.   Customer, at its sole expense, shall be responsible for removing all Customer-owned Equipment from Company’s terminal and depot locations as soon as reasonably practical after termination of this Agreement.


C.   Within thirty (30) days after the expiration or termination of the Agreement, Company shall remove the Equipment owned by Company.  Equipment shall be in good condition and repair, reasonable and proper depreciation excepted.  Customer shall be liable for any loss or damage to the Equipment resulting from theft, disappearance, fire or any other cause unless such loss or damage was proximately caused by the acts or omissions of Company or its independent/sub contractors, representatives or agents.  For each item of Equipment not recoverable by Company through no fault of its own, within the thirty (30) day period, Customer shall be deemed to have purchased such Equipment and shall pay Company the replacement cost, plus any additional costs incurred by Company in replacing the Equipment.


16.     EXPORT AND LEGAL COMPLIANCE .


Customer acknowledges that certain equipment, software and technical data which may be provided hereunder may be subject to export and re-export controls under the U.S. Export Administration Regulations and/or similar regulations of the U.S. or any other country.  Customer shall not export or re-export any such equipment, software, technical data or any direct product thereof in violation of any such laws.  Customer shall comply with all laws and regulations, including but not limited to import and custom laws and regulations.


17.     ORGANIZATION CHANGES.


Each party shall use reasonable efforts to provide the other party with written notice of any change to the party’s (and  in the case of Customer, any Subscriber’s) name, identity or fundamental structure within  thirty (30) days after such change.


18.     RIGHT OF REFUSAL.


Each party reserves the right to refuse to install or maintain any equipment, if in that party’s sole discretion, installation of such equipment could cause harm to Customer’s network or if the equipment that the other party desires Company to maintain is considered by Company or Customer to be non-standard equipment.  If Company refuses to install or maintain any equipment, then the exclusive right granted to Company to maintain the equipment shall not apply to the equipment giving rise to such refusal.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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ATTACHMENT 7-1


EQUIPMENT SCHEDULE


Project/Network:  Times Square Managed Connection.


Minimum Term of Service:  The term of this Attachment 7-1 shall coterminous with the Schedule Eight Term described in Section 2.2 of Schedule Eight.  If the Term of the Agreement expires before the expiration of the Schedule 8 Term, the terms and conditions of the Agreement shall continue to control and apply to this Attachment 7-1 until the end of the Schedule 8 Term.  No additional Equipment may be ordered pursuant to this Attachment except pursuant to a written amendment hereto executed by the parties.


Monthly Recurring Charge:  Charges for the Equipment described in this Attachment are included in the monthly recurring charge set forth in Section 3 of Schedule Eight.


Non-Recurring/Installation Charges:  ****


Management and Monitoring.  The services described in Section 3 of Schedule Seven apply to the Equipment described in this Attachment 7-1.


Ownership: As between Company and Customer, Company shall retain title to all Equipment provisioned by Company at Customer sites  under this Attachment 7-1.


Equipment Descriptions:


Quantity


Make/Model


Location


Serial Numbers








****


****


****


****

****


****


****


****

****


****


****


****

****


****


****


****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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SCHEDULE EIGHT


TIMES SQUARE MANAGED CONNECTION
SCOPE AND SPECIAL TERMS


(A Fully Managed Network Solution)


1.   Scope of  Services.  Company will provide to Customer managed dedicated leased line connectivity   (hereafter referred to as the “Times Square Managed Connection”), including access circuits, Company dedicated leased line service,  related equipment and associated network management services all as further described in this Schedule. The Company dedicated leased line service (service option 2) and dedicated access services are provided subject to the additional terms and conditions set forth in the GSA and Schedule Three.   The customer premise equipment for the Times Square Managed Connection is provided subject to the additional terms and conditions set forth in Schedule Seven (Equipment and Related Services) and Attachment 7-2 attached hereto.   All of the aforementioned provisions are intended to supplement each other to the greatest extent possible, however, in the event of a conflict between the terms of Schedule Eight and any of the aforementioned provisions with respect to the Times Square Managed Connection, this Schedule Eight shall govern.


Implementation;  Schedule Eight Term.


Company shall implement the Times Square Managed Connection pursuant to a mutually agreeable implementation schedule to be agreed by the parties in writing.  The configuration of the network facilities provisioned by Company will be as  follows:


(a)      ****


(b)     ****


As between Company and Customer, Company shall retain title to all customer premise equipment provisioned by Company at Customer sites for the Times Square Managed Connection.


2        The term of this Schedule shall begin on the Second Amendment Effective Date and shall continue for a minimum of twelve (12) Monthly Periods  (the “Schedule Eight Term”).   At the end of the initial Schedule Eight Term, the Schedule Eight Term shall automatically continue month to month  unless either party has provided the other party with written notice of termination at least sixty (60) days prior to the end of the Schedule Eight Term (including any renewal period) subject to (i) Customer paying for Cisco SmartNet maintenance for a full twelve months (12) month term in advance for any term beyond the Schedule Eight Term, (ii) the subminimum commitment in section 3.1 of this Schedule 8 will be pro-rated for each month of the month to month extension or any partial months, and (iii) the month to month extension shall not extent beyond the Term of the Agreement . If the Agreement is terminated before the expiration of the Schedule Eight Term, then the terms and conditions of this Schedule Eight, and the remainder of the Agreement as it relates to this Schedule, shall continue to apply until the end of the Schedule Eight Term.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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3.       Rates and Charges.


3.1  Summary of Total Rates and Charges.   The Base Rates applicable to Customer for The Times Square Managed Connection are summarized below.  The Base Rates are effective no later than the Third Amendment Effective Date and are fixed for the Term.




Monthly



Connected Sites


Recurring Charge*


Non-Recurring
Installation

****


****


****



*Includes all circuits described in Section 2.1 and equipment and related network maangement described in Attachment 7-2 to Schedule Seven.


Cisco Smartnet Maintenance:  **** non-recurring charge payable in advance (For **** months / **** routers).   This non-recurring charge will also be payable by Customer in the first Monthly Period after the Second Amendment Effective Date, and in the first Monthly Period upon each **** renewal (i.e.****.).


3.2  Regulated Interstate Services Component. The monthly recurring charge set forth in Section 3.1 above is  inclusive of **** attributable to interstate Regulated Services.  The charges described in this Section 3.2 constitute a “Specialized Customer Arrangement” or “SCA” as defined in   the Guide.  Capitalized terms not otherwise defined in this Agreement shall have the definition given to them in the Tariff.


3.3   Subminimum.  During the Schedule Eight Term and in each renewal thereof, Customer must incur no less than **** in recurring charges under this Schedule Eight (“Times Square Subminimum”).  For each renewal period, Customer shall pay an amount equal to a pro-rata portion of the Times Square Subminimum (****of the Times Square Subminimum for each Monthly Period). If  Customer fails to satisfy the Times Square Subminimum during the Schedule Eight Term or any renewal thereof, Customer shall pay Company an amount equal to the difference between the Times Square Subminimum and Customer’s actual monthly recurring charges paid during the applicable period under this Schedule Eight.


4.        Orders For Service.  Orders for installation, changes or disconnects shall be provided to Company by Customer.


 5.        Installation. The term “Installation shall mean the carrying out and completion of all work (including, but not limited to, procurement of any piece of hardware or software used by Company to provide Service as contemplated under this Agreement [each, a “Component”], site surveys, scheduling, physical and logical connection of all Components to the Service to ensure that Customer’s locations and each Subscriber’s locations are fully integrated into the Times Square Managed Connection, testing, and correction of any problems which cause the Service not to operate in accordance with Company’s standard specifications) at a location at which the Service is contemplated to be provided under this Agreement.  The parties will agree on an Installation schedule which is subject to change by mutual agreement of the parties. After completion of work associated with an Installation, Company shall ensure that the exterior of Components and the surrounding areas are clean and that all discarded parts, supplies and other waste is removed from the premises.


6.   Installation Acceptance.  Customer will have a period of ****after Installation notification hereunder in which to notify Company of service troubles.  Failure to notify Company of service troubles within ****after Installation notification constitutes acceptance of the circuit(s) from the first day of notification.  Company will use commercially reasonable efforts to rectify service troubles promptly.  Charges will not apply pending



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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repair of service troubles associated with Installation. Troubles on such circuits must be reported on a circuit specific basis to Company support center.


7.       Customer’s Termination Liability.   If (a) Customer terminates either the Times Square Managed Connection, or this Agreement, prior to the end of the Schedule Eight Term other than due to an uncured breach by Company of a material term hereunder, a final order by the SEC that requires Customer to permanently discontinue the Times Square Managed Connection, or other than as Customer is expressly permitted herein to terminate without liability, or (b) Company terminates this Agreement early as permitted under Section 12 Customer will pay, in addition to all accrued but unpaid charges and liabilities incurred through the date of such termination:  (i) any and all credits received by Customer hereunder for the Times Square Managed Connection (except service interruption credits, if any), in full, without setoff or deduction; plus (ii) an amount equal to the product of (a) the total monthly recurring charge for the Times Square Managed Connection incurred by Customer in the month preceding the month of termination,  multiplied by (b) the number of unsatisfied months (prorated for partial months) remaining in the Schedule Eight Term on the date of termination; plus (iii) the aggregate termination charges payable to any  non-U.S. third party suppliers, if any, for which Company is or becomes contractually liable to the extent directly resulting from such termination.  Upon written request of Customer, Company will use its reasonable efforts to identify in advance any such termination charges payable to third party suppliers.


8.       Design Changes. Subject to Customer’s satisfaction of the Times Square Subminimum, during the Term Customer may modify the Times Square Managed Connection design and replace existing Services with new or existing Services generally offered by Company.  Any such modification  would be reflected in a mutually acceptable amendment to this Agreement.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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SCHEDULE NINE
SERVICE DELIVERY PLATFORM (“SDP”)/ APPLICATION PROGRAM INTERFACE (“API”)


1. Agreement. The EWN II Agreement, dated November 19, 1997 and executed by the Customer and MCI shall remain in full force and effect until its expiry on May 31, 2004.  As of June 1, 2004, MCI will provision the SDP-API services (formerly known as EWN services) to the Customer and Subscribers under the terms, conditions and rates as detailed below (“Schedule Nine Services”).  As between Customer and MCI, the parties agree that MCI does not have a contractual relationship with the Subscribers for Schedule Nine Services.


2. Term.  The term of this Schedule Nine is from June 1, 2004 to December 31, 2005 (“Schedule Nine Term”).


3. Contribution.  Notwithstanding anything otherwise set forth in the Agreement, invoiced amounts to Customer for the Schedule Nine Services shall contribute to Customer’s Extranet Minimum as set out in Section 5of the Agreement.


4. Exclusivity. Customer agrees that MCI shall be the only provider of the Schedule Nine Services (except for those Subscribers linking to Customer by the Internet) until December 31, 2005.


5. Billing. MCI will bill Customer directly for the Schedule Nine Services.  Schedule Nine Services are Enhanced Services.


6. DEFINED TERMS


6.1 A Component is a piece of hardware or a piece of software used by MCI to provide Services under this Agreement. Components include Separable Components as defined below .


6.2 A Separable Component shall mean a Component that may reasonably be separated from the Components without adversely affecting MCI’s ability to operate in the ordinary course of its business and which MCI has procured by purchase, license or lease specifically for the provisioning of the Services.  For the purpose of clarity, Separable Components shall include the items of equipment MCI has procured (by lease, purchase or license) and placed on the premises of Customer, the Corporations, the Subscribers or other authorized users of the Services and such similar items as MCI shall have specifically placed in service on MCI premises in order to provide the Services and Separable Components shall not include MCI’s basic service network, such as fiber optic transmission lines and associated equipment and facilities and MCI’s network management centers and associated equipment and facilities.


6.3 The Corporations means The Nasdaq Stock Market, Inc. and/or its Affiliates


6.4 MFX is MCI’s Financial Extranet


6.5 Subscriber means any entity (other than the Corporations) authorized by the Corporations to receive information via the Service from the Corporations, or an entity (other than the Corporations) authorized by the Corporations to connect to the MFX .


6.6 Installation shall mean the carrying out and completion of all work (including procurement of Components, site surveys, scheduling, physical and logical connection of all Components to the MFX to ensure that the router/switch is fully integrated into the Service (to meet specifications), testing, correction



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


95




of any problems which cause the router/switch not to meet specifications) required to meet the specifications in connection with a site at which the Service is to be provided under this Agreement


7 Equipment Insurance.  MCI shall maintain replacement value insurance for   Components  located on the Corporation’s and Subscriber premises.  Notwithstanding the foregoing, the Corporations and Subscribers shall be liable for replacement value of any such Components at their respective locations to the extent of loss caused by them; or damage by negligence, abuse or misuse, vandalism caused by them; failure to provide the same electrical or other operating environment as at installation, or unauthorized alterations or attachments in violation of MCI prior provided specifications for  said Components.  MCI may self insure as necessary to comply with the terms of this subsection.


 Customer to use commercially reasonable efforts to inform MCI of disconnects as soon as reasonably practicable.  In the event Customer fails to inform MCI of a disconnect after **** from Customer receipt of such disconnect notice from the Subscriber, the Customer shall be responsible for replacement costs incurred by MCI if MCI is unable to retrieve its equipment.


8. Encumbrances.


8.1. Customer shall keep the Components free and clear of all liens and encumbrances created by or through Customer or the Corporations and shall otherwise reasonably cooperate to defend the interest of MCI in the Components and to maintain the status of the Components as equipment or personal property and not as attachments to real property.  Customer will promptly discharge any lien created by or through Customer or the Corporations on the Components, or otherwise cause the removal of such lien before foreclosure, but in any event within 45 days of actual knowledge by Nasdaq of the lien.  In the event a lien created by or through Customer or the Corporations is imposed on the Components that may have an adverse effect on a proposed MCI action, then it must be removed in time to avoid such adverse affect.  If requested by MCI, Customer will, at Customer’s expense, furnish a waiver of any interest in the Components from any party having an interest in the real estate or building owned, leased, or used by Customer in which the Components are located.  Customer shall permit and shall cause the Corporations to permit MCI reasonable access to inspect said Components (located on their respective premises) during normal business hours.  Customer shall reasonably assist, at the request of MCI, in attempting to arrange reasonable access to a Subscriber premises to permit MCI to inspect said Components during normal business hours.  :  In the event that there is a failure or threatened failure of Customer or the Corporations to perform its or their obligations under this Section, then MCI shall be entitled to discharge or otherwise cause the removal of such encumbrance or lien and shall be entitled to reimbursement by Customer (i) for the amount discharged or removed with interest on said amount at the prime rate per annum, as published in the Wall Street Journal (or as otherwise agreed between the parties) and compounded daily on the past due amount from the time of discharge or other removal until such reimbursement is made to MCI and (ii) for any other amounts reasonably expended in so discharging or other removing.


8.2. Customer agrees to execute and deliver, upon demand, any documents necessary, in MCI’s reasonable opinion, to evidence MCI’s interest in the Separable Components.  In addition, Customer appoints MCI as its attorney-in-fact for the sole purpose of executing and delivering any UCC financing statements required to protect and perfect any such interest.


8.3.  Customer agrees to provide a notice to the Subscribers of a mutually agreeable text provided by MCI informing the Subscribers that they shall keep the Components free and clear of all liens, and of the possibility of reasonable inspection as provided under this Agreement.  Customer shall indemnify MCI for any costs, damages, expenses (including reasonable attorneys fees), incurred by MCI to discharge any liens created by or through Customer, the Corporations or Subscribers, and to defend title to the .



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.  


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8.4     In order to assure that Customer shall have quiet enjoyment of the Services, MCI shall take all actions necessary or appropriate to prevent any third party from taking any action under any lien or other encumbrance created by, through, or because of MCI that threatens in any material respect to inhibit MCI’s ability to perform hereunder (a “Third Party Action”), including but not limited to discharging or otherwise causing the removal of any such lien or encumbrance. MCI shall provide Customer prompt Notice of any actual or threatened Third Party Action of which MCI has knowledge.  In the event that there is a failure or threatened failure of MCI to take all actions (as described hereinabove) in respect of a Third Party Action, then Customer shall be entitled to discharge or otherwise cause the removal of any such encumbrance or lien and shall be entitled to reimbursement by MCI with interest at the rate stated in Section 8.1 for any amounts reasonably expended in so doing.


9.  Sharing of Use.  MCI warrants that the Services can be: (1) used by employees and agents of Customer, the Corporations, and the Subscribers; (2) used to process data for Customer, the Corporations or any Subscriber; and (3) transferred or assigned among the Corporations without consent or additional fees, provided that Customer provides MCI notice no later than 10 days after the transfer or assignment, and within 15 days of  delivery of such notice, Customer delivers to MCI  a guarantee of payment (in a form reasonably acceptable to MCI ) of all charges which may be incurred in respect of the Schedule Nine Services which is transferred or assigned.  Upon transfer, Customer shall cause such Corporation to expressly assume in writing Customer’s obligations (including those related to Separable Components) to the extent of the transfer and Customer shall  remain liable for all obligations not transferred.


10.  Diversity of Carriers and Routes and Backup.


MCI must provide, during the effectiveness of this Agreement, diverse transmission paths and associated Components (and if available through diverse carriers or diverse points of presence, local loops) through electronically and physically diverse transportation methods such that nothing on the diverse paths can have a common single point of failure.  Additionally, if local loop diversity is not available, then if requested by Customer, MCI must provide, if possible,  diverse transmission paths and associated Components through electronically and physically diverse transportation methods such that nothing on the diverse paths can have a common single point of failure.  The price to Customer will be based on the best reasonably available LEC/PTT/or other third party provider rate to MCI at the time, given the size and nature of the procurement (documented upon request of Customer), plus an administrative markup not to exceed 4% (“At Cost”), diverse transmission paths and associated Components through electronically and physically diverse transportation methods such that nothing on the diverse paths can have a common single point of failure.


11.  Maintenance.


11.1. Maintenance shall mean Services conforming to the requirements of this Section.  All maintenance and repair work must be performed in a good and workmanlike manner, in accordance with manufacturer and industry standards and specifications in order to keep Services operating within the SLA .  MCI may charge Customer for mutually agreed-upon equipment replacement or repair only to the extent replacement or repair costs are attributable to: (1) damage or loss due to negligence, misuse or abuse caused by Customer; (2) failure to provide the same operating environment as at Installation (including but not limited to the failure to provide the same electrical power, or conditioning, or humidity control); (3) unauthorized alterations; (4) attachments of equipment to Separable Components in violation of MCI prior provided specifications;  or (5) movement of Separable Components not authorized by MCI.   Charges for these services will be based on a rate as mutually agreed between the parties.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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11.2.  Services coverage, which includes hours for remote monitoring, hours for on-site NCC coverage at Customer’s Trumbull, CT Data Center, and hours for performance measurement (PPM), and such principle period of maintenance shall be from 7:00 a.m. to 7:00 p.m. Eastern time.


11.3.  In the event of a situation that makes a Corporation data center inoperable or unusable for any period of time, Customer may request MCI to provide connectivity to an alternate data center as expediently as possible .   MCI will provide support to such alternative data center 24 hours a day, seven days a week.  Charges for these services will be based on a rate as mutually agreed between the parties.


11.4.  Customer shall provide MCI reasonable access to any Customer premises to permit MCI to respond to a service call or to perform preventive maintenance during the hours permitted by Customer.  Customer shall reasonably assist, at the request of MCI, in attempting to arrange reasonable access to a Subscriber premises to permit MCI to respond to a service call or to perform preventive maintenance.  During the time a Subscriber  denies MCI reasonable access, MCI’s obligations to perform the Schedule Nine Services are waived for the respective Subscriber.


11.5.  After completion of work, MCI shall insure that the exterior of Components and the surrounding areas are clean and that all discarded parts, supplies and other waste is removed from the premises.  In any maintenance or repair MCI shall use only replacement parts that perform to at least the manufacturers’ specifications of the replaced item when new.


11.6.  Except for the uses and accesses contemplated by this Agreement, at no time will Customer (including the Corporations) personnel, agents, independent/sub contractors or any other entity under Customer’s control, intentionally make an unauthorized use, unauthorized access, or interfere with, download, disassemble or otherwise perform unauthorized manipulation of, any MCI Components (including, but not limited to, TeMIP,, Circuit View work stations, TMS, COMS, NETPRO) used to provide the Services except with the express authorization and under the direction of MCI.  Except for cables at a Subscriber’s premises, at no time will MCI personnel, agents, independent/sub contractors ,or any other entity under MCI’s control, intentionally use, access, interfere with, download, disassemble, or otherwise manipulate, any Customer hardware or software except with the express authorization of Customer (e.g., to enable MCI to resolve trouble tickets).  The Corporations shall not reverse engineer or decompile any MCI provided software. The Customer agrees to provide a notice to the Subscribers of a mutually agreeable text provided by MCI informing the Subscribers that they shall not violate the terms of this provision.  MCI shall have the right, upon providing Customer reasonable advance notice, to correct, deinstall, or restore any MCI Component which Customer, the Corporations or any Subscriber has disassembled, manipulated or otherwise modified without MCI’s prior express authorization or direction.  Customer  shall reimburse MCI for the cost of any such correction, deinstallation or restoration.


12.  Tariff.


12.1.  The parties agree that the Services provided under this Agreement are interstate enhanced services, as they are currently defined by the Federal Communications Commission.  In the event a regulatory agency with jurisdiction over MCI requires MCI to file a tariff covering some or all of the Services, MCI agrees to tariff only those Services or those terms of such Services that are required to be tariffed.  Nothing in this Agreement prevents MCI from withdrawing or canceling a tariff.


13.  Security Regulations.  MCI personnel will be instructed to comply with security regulations pertinent to each Corporation or Subscriber location and any oral security instructions or demands of that location’s personnel.  MCI personnel, when deemed appropriate by Customer in its sole discretion, will be issued a visitor identification card by Customer.  Such cards will be surrendered by MCI personnel upon



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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demand by Customer and without further demand upon expiration or termination of this Agreement.   MCI shall not attempt to gain access to restricted areas, to systems, or to Confidential Information in the possession of the Corporations or Subscribers beyond the access permitted by that entity.


14 Canadian and other Non-US Subscribers. For Service to member firms in Canada, Alaska, Hawaii, and Puerto Rico Customer shall pay the applicable rates as   set forth in  Section 16 of this Schedule Nine plus an additional fee for access to the network based on standard or GSA rates (“Network Access Rate”).   In addition to the Network Access Rate, Company will pass through to Customer, and Customer shall be responsible for, any charges (including, without limitation, installation charges), fees, taxes and terms and conditions of service imposed by local access/egress service suppliers (e.g., Bell Canada) in relation to the provision of Services, including, but not limited to, rate fluctuations in tariffs, communications charges and access charges that are imposed or enacted by the local suppliers from time to time.  Customer shall be responsible for any gains or losses associated with fluctuations in the exchange rate and/or timing of payment where access charges are billed in non-U.S. currency and are to be paid by Customer in U.S. Dollars.  Company shall, for this limited purpose only, act as Customer’s representative in procuring, on Customer’s behalf and at no additional cost to Customer for so procuring, the local access/egress services from suppliers.


15        Customer warrants to  Company that during the term of this Agreement, but in no event beyond  December 31, 2005 (unless the parties specifically agree otherwise):


 (a)  Customer shall obtain all of its SDP-API Services solely and exclusively from Company. As used herein, “EWN Services” means those network transmission, network management, network maintenance, network monitoring services, and customer premises equipment required by Customer for, and associated with either: (i) the operation of SDP/API but only between, and including, the switches at each of the Customer data centers and each Subscriber’s premises (and not including any components or services affecting only the Customer or Subscriber side of such switches), or (ii) the functionality associated with SDP’s.    Each party agrees to negotiate in good faith the pricing for any new or additional SDP-API Services. The provisions of the Section 15(a) do not survive the completion of performance or the rejection, termination or expiration of this Agreement.  Customer’s breach of the exclusivity obligations as set out in this Section 15 (a) which are not cured within 30 days’ written notice from MCI shall be considered Cause for termination for MCI.


(b) Should Customer enable a web application for small users (less than ****), the establishment and migration of these users will not be subject to the exclusivity requirement in 15 (a) above.


(c)  The Company will not market or sell  Schedule Nine network connectivity to market makers for purposes of allowing these market makers to satisfy their attributable quoting (or order entry) through a Customer competitor.  This includes the support of a market maker’s requirement to maintain during the trading day a valid two sided quote (or order) in all securities for which they are a registered market maker.  The quote (or order) attribution occurs because the market maker’s identity is revealed by assigning the market maker’s MPID (“Market Participant ID”), to the quote (or order).  In the event that the Customer notifies the Company that one of the Company’s Subscribers is engaged in attributable quoting (or order entry) with a market center different than the Customer’s, the Company shall use commercially reasonable efforts to stop the Subscriber from engaging in attributable quoting (or order entry) over the Company network.


16. SDP-API RATES


Speed


Monthly Rate


16.1    TCP/IP Only


****


****

****


****

****


****

****


****

****


****

****


****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


99




16.2 Broadcast with TCP/IP

greater than or equal to ****



****


****

****


****

****


****

****


****

****


****


17.   Non-Recurring Charges and Notes – Non-Recurring Charges apply to SDP/API Services.


All intervals are measured in business days.


Each provisioning interval shall begin upon MCI receipt of a complete and accurate order from Customer.  Longer time periods for any implementation or change activity may be agreed upon by the parties on an individual case basis.


MCI may invoice Customer for non-recurring charge no earlier than five (5) days following Installation of the local access circuit.


Customer agrees to use its reasonable effort to assist MCI in the recovery of MCI equipment from a Subscriber’s premises in the event the Subscriber disconnects service in connection with its discontinuance of operations.


Definitions:


FOC – Firm Order Commitment – the maximum number of business days from the date MCI received Customer’s order for the service until MCI notifies Customer of its firm commitment to all dates involving Subscriber or Corporation premises visits.


ICB – To be determined on an individual case basis.


Interval – The number of business days from the date MCI receives the order from Customer within which the service will be completed.


Activity


Interval


FOC


Charge


Comments

Site Install


**** *


****


****












Upgrade requiring additional ****


****


****


****



Upgrade requiring new router


****


****


****





* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


100




Internal Move


****


****


****



External Move


****


****




Handled as install/disconnect

Site Disconnect


****


****


****



Change Order


****


****


****



Expedite


****


****


****


Applies per circuit, expedited delivery is best effort and not guaranteed

Cancel before CPE install






****


Applies per circuit and is charged after telco order is placed and before dispatch

Cancel after CPE install








Handled as install/disconnect

Subscriber not Ready (SNR)








Charged as installed Subscriber after **** of the Subscriber not being ready as communicated to Customer in weekly order status reports



*The installation interval is a monthly average and is calculated exclusive of delays caused by Subscriber (e.g., failure to extend demarc).



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


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SCHEDULE 10
MULTI-CAST DATA NETWORK (“MDN”) FROM THE ISN NETWORK AGREEMENT


1. Agreement. The ISN Agreement, signed by Customer on January 22, 1991 remains in full force and effect until its expiry on ****.  As of ****, MCI will provision the MDN services to the Customer and Subscribers under the terms, conditions and rates as detailed below (“Schedule Ten Services”).


2. Term.  The term of this Schedule Ten is from **** to ****, (“Schedule Ten Term”).


3. Contribution.  Notwithstanding anything otherwise set forth in the Agreement, invoiced amounts to Customer and Subscribers for the Schedule Ten Services shall ****.


4. Exclusivity. Customer agrees that MCI shall be the only provider of the Schedule Ten Services until ****.


5. Billing. MCI will bill Subscribers directly for the Schedule Ten Services, except for the **** per CPE configuration charge, as set forth below, for which MCI will bill Customer directly.  MCI will commence billing Subscribers upon successful completion of a ****.  For Subscribers upgrading or downgrading an existing connection, the new charges will be effective on the upgrade or downgrade completion date.  Schedule Ten Services are Enhanced Services.


6. MDN / Republisher:  Customer’s Market Data Feeds will be published across MCI’s Financial Extranet (MFX) using a technique developed by MCI based, IN PART, on Customer’s design and specification know as “Republishing”.  ****.


 6.1 MCI will own and operate for the term of this Agreement the necessary hardware and software to support Republishing, inclusive of four **** servers, (two each), located at Customer’’s Data Centers in Trumbull, CT and Rockville, MD, in addition to four copies of the Republisher software.  MCI also reserves the right to relocate the Republisher Systems (**** Servers) now located at Customer’s Data Center in Rockville, MD to an MCI Point of Presence of its choice for use as network based back-up Republishers in support of the Customer as well as other MCI customers requiring MFX IP Multicast services.    Such relocation of the Republisher System will only occur after Customer’s review of a transition plan to protect Customer from service interruptions.  If Customer believes that the relocation poses a major risk to Customer, the parties shall promptly meet to discuss the plan and address, in good faith, Customer’s issues with the plan.


6.2 Republisher Transition Service:  MCI will assist Customer and HP in the implementation of a like “Republisher” system to replace that which MCI operates on behalf of Customer today by participating in related design and planning sessions coordinated by HP or Customer and as required by providing the parallel operation of the MCI “Republisher” system beyond 12/31/05 at the rates specified in this Agreement.


6.3 The Customer may also at its own discretion choose to extend MCI’s operation and maintenance of the MCI “ Republisher “ system on the same terms and conditions on a month to month basis for up to six months after 12/31/05.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


102




 6.4 MCI will charge Customer a monthly fee of **** per CPE configuration at Third Party Subscriber location for such Third Party Subscriber’s connection that is provided using the MCI Republisher.  “Third Party Subscriber” shall mean a customer of Customer that does not connect to Customer through MCI or any of its Affiliates.   On a monthly basis, Customer shall provide MCI with a list of such Third Party Subscribers.  The **** charge set forth herein shall apply to the Extranet Minimum.


7. MDN - program rates -


 Charges


7.1.  Monthly Site Fee:


Router Size


Description


Monthly Fee

Extra Small


****


****

Small


****


****

Medium


****


****

Large


****


****


7.2 Monthly Network Access Fees:


 per ****       ****per loop in Greater NYC, ****all other (lit or non-lit)

 per ****       ****per loop in Greater NYC, **** all other (lit or non-lit)

 per ****         ****per loop in Greater NYC, ****all other (lit or non-lit)


“Greater NYC” shall be defined as service locations that fall within the following area codes: 212, 646, 917, 718, 347,516, 914, 631, 201, 551


  7.3  Network Operations Fee


Router Size


Monthly fee

****


****

****


****

****


****

****


****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


103




 7.4 Network Capacity - Fees - charges are fixed per **** and  based on speed chosen.


Speed


Monthly Charge, Multicast

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****

****


****


8. Non-Recurring Charges and Notes – Non-Recurring Charges apply to MDN Services.


All intervals are measured in business days.


Each provisioning interval shall begin upon MCI receipt of a complete and accurate order from Subscriber.  Longer time periods for any implementation or change activity may be agreed upon by the parties on an individual case basis.


Customer agrees to use its reasonable effort to assist MCI in the recovery of MCI equipment from a Subscriber’s premises in the event the Subscriber disconnects service in connection with its discontinuance of operations.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


104




Definitions:


FOC – Firm Order Commitment – the maximum number of business days from the date MCI received Subscriber’s order for the service until MCI notifies Subscribers of its firm commitment to all dates involving Subscriber or Corporation premises visits.


ICB – To be determined on an individual case basis.


Interval – The number of business days from the date MCI receives the order from Subscriber within which the service will be completed.


Activity


Interval


FOC


Charge


Comments

Site Install Xsmall and Small


**** *


****


****



Site Install Medium and Large


**** *


****


****



Upgrade Xsmall or Small to Medium or Large


****


****


****



Upgrade Xsmall to Small


****


****


****



Upgrade Medium to Large


****


****


****



Internal Move


****


****


****



External Move


****


****




Handled as install/disconnect










Change Order


****


****


*****



Expedite


****


****


****


Applies per circuit, expedited delivery is best effort and not guaranteed

Cancel before CPE install






****


Applies per circuit and is charged after telco order is placed and before dispatch

Cancel after CPE install








Handled as install/disconnect

Subscriber not Ready (SNR)








Charged as installed Subscriber after **** of the Subscriber not being ready



*The installation interval is a monthly average and is calculated exclusive of delays caused by Subscriber (e.g., failure to extend demarc).


9.   For Service to member firms in Canada, Alaska, Hawaii, and Puerto Rico subscribers shall pay the applicable rates as   set forth in  Schedule Ten plus an additional fee for access to the network based on standard or GSA rates (“Network Access Rate”).  In addition to the Network Access Rate, Company will pass through to subscriber, and subscriber shall be responsible for, any charges (including, without limitation, installation charges), fees, taxes and terms and conditions of service imposed by local access/egress service suppliers (e.g., Bell Canada) in relation to the provision of Services, including, but not limited to, rate fluctuations in tariffs, communications charges and access charges that are imposed or enacted by the local suppliers from time to time.  Subscriber shall be responsible for any gains or losses associated with fluctuations in the exchange rate and/or timing of payment where access charges are billed in non-U.S. currency and are to be paid by subscriber in U.S. Dollars.  Company shall, for this limited purpose only, act as subscriber’s representative in procuring, on subscriber’s behalf and at no additional cost to subscriber for so procuring, the local access/egress services from suppliers.



THIS SPACE INTENTIONALLY LEFT BLANK




* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


105






* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


106




SCHEDULE 11
CTCI/FIX/UTP


1. Agreement. [The ISN Agreement, signed by Customer on January 22, 1991 remains in full force and effect until its expiry on ****.  Provided that the Customer signs the Amended and Restated GSA by****, then the rates, charges, and discounts will become effective as of **** and, MCI will provision the CTCI, FIX, and UTP services to the Customer and Subscribers under the terms, conditions and rates as detailed below (“Schedule Eleven Services”).


2. Term.  The term of this Schedule Eleven is from ****to ****(“Schedule Eleven Term”).


3. Contribution.    Notwithstanding anything otherwise set forth in the Agreement, invoiced amounts to Customer and Subscribers for the Schedule Eleven Services shall contribute to Customer’s Extranet Minimum as set out in Section 5 of the Agreement.


4. Exclusivity. Customer agrees that MCI shall be the only provider of the CTCI Services until ****.


5. Description. CTCI / FIX/UTP:  Customer’s CTCI (Computer to Computer Interface) service is a TCP/IP  based application which will be transported via MCI’s MFX network as IP traffic  between Customer’s Trumbull, CT Data Center and a Subscriber of this  service.   FIX (Financial Information Exchange) is another message format that Customer supports for the exchange of trade information.  This service will also be supported across the MFX network as IP traffic in the same manner as CTCI and  UTP connections (Unlisted Trading Privilege).  Schedule 11 Services are Enhanced Services.


6. CTCI program rates - description of service based on current agreement with Customer


Type/Speed


Monthly Charge








Xsmall ****


****


****

Small****


****


****

Small ****


****


****

Small ****


****


****

Small ****


****


****

Small ****


****


****

Small ****


****


****

Small ****


****


****


Pricing notes:  Customer will be eligible to order Customer-direct bill FIX connections at the same rates outlined above.  Rates will be subject to the MCI Program Document when completed.


MCI will bill Customer directly for CTCI Services and for FIX Services if on a CTCI configuration.  MCI will bill Subscribers directly for other components of the Schedule Eleven Services.


CTCI/FIX –Subscribers who wish to consolidate FIX on their CTCI connection will be allowed to do so, with the rates outlined above. The entire connection will be billed to Customer directly.  Data streams  will remain segregated and be billed separately.


THE BELOW EXAMPLE IS FOR ILLUSTRATIVE PURPOSES ONLY


For example, a customer choosing to consolidate CTCI and FIX on one connection could be configured and billed as follows:



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


107




CTCI –****-


****



FIX –****-


****



Total Cost:




****


****.


7. Canadian and other Non-US Subscribers. For Service to member firms in Canada, Alaska, Hawaii, and Puerto Rico Customer shall pay the applicable rates as   set forth in this Schedule Eleven plus an additional fee for access to the network based on standard or GSA rates (“Network Access Rate”). In addition to the Network Access Rate, Company will pass through to Customer, and Customer shall be responsible for, any charges (including, without limitation, installation charges), fees, taxes and terms and conditions of service imposed by local access/egress service suppliers (e.g., Bell Canada) in relation to the provision of Services, including, but not limited to, rate fluctuations in tariffs, communications charges and access charges that are imposed or enacted by the local suppliers from time to time.  Customer shall be responsible for any gains or losses associated with fluctuations in the exchange rate and/or timing of payment where access charges are billed in non-U.S. currency and are to be paid by Customer in U.S. Dollars.  Company shall, for this limited purpose only, act as Customer’s representative in procuring, on Customer’s behalf and at no additional cost to Customer for so procuring, the local access/egress services from suppliers.


8. Non-Recurring Charges and Notes – Non-Recurring Charges apply to CTCI-FIX- UTP Services.


All intervals are measured in business days.


Each provisioning interval shall begin upon MCI receipt of a complete and accurate order from Customer or Subscriber.  Longer time periods for any implementation or change activity may be agreed upon by the parties on an individual case basis.


MCI may invoice Customer for CTCI non-recurring charge no earlier than five (5) days following Installation of the local access circuit.


Customer agrees to use its reasonable effort to assist MCI in the recovery of MCI equipment from a Subscriber’s premises in the event the Subscriber disconnects service in connection with its discontinuance of operations.


Definitions:


FOC – Firm Order Commitment – the maximum number of business days from the date MCI received Customer or Subscribers’s order for the service until MCI notifies Customer or Subscriber of its firm commitment to all dates involving Subscriber or Corporation premises visits.


ICB – To be determined on an individual case basis.


Interval – The number of business days from the date MCI receives the order from Customer or Subscriber within which the service will be completed.



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


108




Activity


Interval


FOC


Charge


Comments

Site Install


**** *


****


****












Internal Move


****


****


****



External Move


****


****




Handled as install/disconnect










Change Order


****


****


****



Expedite


****


****


****


Applies per circuit, expedited delivery is best effort and not guaranteed










Cancel before CPE install






****


Applies per circuit and is charged after telco order is placed and before dispatch










Cancel after CPE install








Handled as install/disconnect










Subscriber not Ready (SNR)








Charged as installed Subscriber after **** of the Subscriber not being ready  as communicated for CTCI orders to Customer in weekly order status reports



*The installation interval is a monthly average and is calculated exclusive of delays caused by Subscriber (e.g., failure to extend demarc).


THIS SPACE INTENTIONALLY LEFT BLANK



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


109




SCHEDULE 12
****


1. Agreement. ****The ISN Agreement, signed by Customer on January 22, 1991 remains in full force and effect until its expiry on****.  Provided that the Customer signs the Amended and Restated GSA by****,then the rates, charges, and discounts will become effective as of****.and, MCI will provision the Managed Host-to-Host services to the Customer under the terms, conditions and rates as detailed below (“Schedule Twelve Services”).


2. Term and Termination The term of this Schedule Twelve is from ****to ****(“Schedule Twelve Term”).  If  Customer terminates a circuit prior to the end of the Schedule Twelve Term, Customer will pay:  (i) all accrued but unpaid charges incurred through the date of such termination; (ii) an amount (which Customer hereby agrees is reasonable) equal to the aggregate of the monthly recurring charges for each circuit terminated (and a pro rata portion thereof for any partial month) that would have been applicable for the remaining unexpired portion of the Schedule Twelve Term on the date of such termination.  Such payment shall not be due if Customer terminates a circuit (i) because of MCI’s breach of the Agreement, (ii) because of a termination by either party because of a Force Majeure event as set forth in Force Majeure, Section 23.7, or (iii) as otherwise permitted in the Agreement.


3. Contribution.  Notwithstanding anything otherwise set forth in the Agreement, invoiced amounts to Customer for the Schedule Twelve Services shall contribute to Customer’s Extranet Minimum as set out in Section 5 of the Agreement.


4. Description: ****,


5. Rates and Charges Applicable to Managed Host-to-Host Bandwidth


5.1 Rates if Customer’s Trumbull facility is lit and Customer pays the one time fee listed below:


One Time Fee associated of **** for lighting the Customer’s Trumbull, CT facility payable ****.


5.2 The rates below will be applicable starting****.


Circuit Charges*

 

Connected Sites


NPA-NXXs


Circuit


Facilities


Monthly
Recurring Charge










Trumbull, CT and


****to







Rockville, MD


****


****


****


****







****



Trumbull, CT and


****to







Rockville, MD


****


****


****


****







****





*Pricing includes the  local access circuit on each end.


5.3 Rates if Customer’s Trumbull facility is not lit or if Customer does not pay the one time fee listed above which will be charged back to****:


Circuit Charges*

 

Connected Sites


NPA-NXXs


Circuit


Facilities


Monthly
Recurring Charge










Trumbull, CT and


****to ****







Rockville, MD




****


****


****







****



Trumbull, CT and


**** to ****







Rockville, MD




****


****


****



*Pricing includes the  local access circuit on each end.




* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


110




SCHEDULE 13

****

[*7 pages omitted pursuant to Confidential Treatment request]




* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


111




SCHEDULE 14


SIAC Network Connection


****



* ****Confidential Treatment has been requested for the redacted portions.  The confidential redacted portions have been filed separately with the Securities and Exchange Commission.


112

Source: OneCLE Business Contracts.