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Collocation And Interconnection Agreement

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Sectors: Computer Software and Services
Governing Law: Delaware, View Delaware State Laws
Effective Date: February 25, 1998
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EXHIBIT 10.96


COLLOCATION AND INTERCONNECTION AGREEMENT


This Collocation and Interconnection Agreement (this "Agreement") is entered into as of the 25th day of February, 1998, by and between IXC Internet Services, Inc., a Delaware corporation ("IXC"), and PSINet Inc., a New York corporation ("PSINet"). All capitalized terms used but not otherwise defined herein shall have the meanings set forth in that certain IRU and Stock Purchase Agreement entered into as of July 22, 1997 by and between IXC and PSINet (as amended, supplemented or modified, the "Purchase Agreement"). In the event of any conflict between the terms of this Agreement and those of the Purchase Agreement, the terms of the Purchase Agreement shall control.


BACKGROUND AND PURPOSE


This Agreement is made with reference to the following facts:


A. IXC and PSINet have entered into the Purchase Agreement pursuant to which, among other things, PSINet has acquired from IXC the PSINet Fiber IRU, the IRU Capacity and the option to order Bandwidth on the Available System and IXC has acquired from PSINet shares of PSINet's common stock.


B. In connection with the Purchase Agreement, PSINet may wish to collocate its telecommunications equipment ("Equipment") at IXC's premises or points-of- presence ("POPs") and, or may wish to interconnect its Equipment to IXC's or third party's equipment. This Agreement sets forth the terms and conditions on which PSINet may collocate and, or interconnect its Equipment on IXC's premises.


TERMS OF AGREEMENT


Accordingly, in consideration of the foregoing and of the mutual covenants contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:


1. IXC PREMISES. IXC's premises available for the collocation of PSINet's Equipment or interconnection of PSINet's facilities are listed on Exhibit K to the Purchase Agreement as it may be expanded from time to time (the "IXC Premises" or "IXC POPs").


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2. COLLOCATION RIGHTS.


2.1 COLLOCATION. IXC hereby grants to PSINet the right to locate, install, maintain and operate Equipment at the IXC Premises for the duration of the term of the Purchase Agreement. No use of the IXC Premises required or permitted under this Agreement shall create or vest in PSINet any easements or other ownership or property rights of any nature in IXC's real or personal property or the IXC Premises.


2.2 BASIC SERVICES. In consideration of the maintenance fee that PSINet is required to pay IXC under the section entitled System Maintenance and
---------------------- POPs -Consideration set forth in the Purchase Agreement, IXC shall supply HVAC - ------------------- (Heating, Ventilation and Air Conditioning) for standard components, non-UPS AC power and space for PSINet Equipment at the IXC POPs as follows:


SITES # OF SPACES** POWER PER SPACE
----- ------------- ----------------


As listed on Exhibit K * *


** A space adequate to contain a cabinet (measuring 2 feet (width) x 3 feet (depth) x 70 inches (height)). PSINet shall supply its own cabinets. If PSINet has more, or desires more, than six Spaces in the IXC POPs, PSINet shall be required to pay for those Spaces at IXC's standard rates.


2.3 INTERFACE. Interface points for PSINet's IRU Capacity provided by IXC under the Purchase Agreement shall be at fiber patch panels ("Connect Panels") located in the IXC Premises. The Connect Panel located in the IXC Premises shall be the demarcation to establish PSINet's operational and maintenance responsibilities. Subject to the space limitations set forth in this Agreement, PSINet shall provide, install and maintain at its expense the electronic equipment at the IXC Premises it desires. PSINet will pay IXC time and materials agreed upon on a case by case basis for equipment installation, tech-assists and build-outs for power, cabling and HVAC.


2.4 ADDITIONAL SERVICES. In the event PSINet desires installation services (including, but not limited to cross connect facilities needed to access local exchange carriers' or competitive access providers' entrance facilities), DC power, or additional space, AC power or HVAC (collectively referred to as the "Services") at any of the IXC Premises, it shall make a written request for such Services to IXC. Within fifteen (15) business days after receiving such written request, IXC shall provide PSINet with the availability of the Services and IXC's standard rates for the Services. In the event upgrades or expansions to the IXC Premises or its facilities are necessary to accommodate PSINet's request, IXC may include the entire cost of such upgrades or expansions in the cost to PSINet. In the event IXC provides the Services to PSINet by replacing its existing equipment at PSINet's expense, IXC shall give the old, replaced equipment to PSINet. In


* Confidential material has been omitted and filed separately with the Securities and Exchange Commission.


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the event PSINet chooses to receive additional Services at the IXC Premises, PSINet shall pay any and all (initial and continuing) costs reasonably determined by IXC to be necessary to provide Services to PSINet. If IXC makes available and PSINet utilizes more than 20 amps of AC power per Space during any particular month during the term of this Agreement, PSINet shall pay IXC its standard rate for each additional amp. IXC shall provide PSINet with an invoice setting forth the costs for additional Services within sixty (60) days of the later of: (a) IXC receiving its invoices for such Services from subcontractors and vendors or (b) delivering the Services to PSINet. PSINet shall pay IXC the amounts due within thirty (30) days of receipt of an invoice from IXC.


2.5 BACK-UP POWER. In the event that PSINet desires back-up power at the IXC POPs, PSINet shall submit its back-up power requirements to IXC. IXC shall within thirty days of receipt of PSINet's request provide PSINet with a quote as to IXC's costs for providing such back-up power; provided however, that IXC shall only be obligated to provide such quote and the back-up power if IXC, in its sole discretion, determines that providing such back-up power is feasible considering available space, environmental factors, required consents from third parties and other relevant factors. In the event IXC does provide back-up power to PSINet: (a) IXC shall provide PSINet with invoices setting forth the costs for such back-up power within sixty (60) days of the later of: (i) IXC receiving its invoices from subcontractors and vendors for installing and providing such back-up power or (ii) delivering the back-up power to PSINet; and (b) IXC will have no liability whatsoever to PSINet with regard to any delay, failure or defect in such back-up power and Section 18 shall apply to such power. IXC's initial and ongoing costs for providing such back-up power to PSINet may be included in IXC's invoices to PSINet. PSINet shall pay IXC the amounts due within thirty (30) days of receipt of an invoice from IXC.


2.6 DELIVERY AND INSTALLATION. PSINet shall, at its own expense, deliver, install and maintain its collocated Equipment in a safe condition and meeting or exceeding the standards set forth in Section 7.2. At no additional charge, IXC shall provide to PSINet Spaces that are reasonably proximate to each other in light of the type of Equipment that PSINet is installing; provided, however, that if PSINet or its Equipment requires a specific geometric arrangement, and IXC determines that in order to accommodate PSINet or its Equipment, rearrangement of the existing facilities at the IXC Premises is required, PSINet agrees to reimburse IXC for any such make-ready costs. IXC will advise PSINet in writing of any estimated make-ready charges (including investigation, design and engineering fees) for such rearrangement work and PSINet shall make payment to IXC within thirty (30) days from its receipt of IXC's invoice therefor.


3. INTERCONNECTION WITH PSINET POPS.


3.1 CONSTRUCTION AND INSTALLATION. In the event PSINet desires to connect any of its POPs to any IXC POP, PSINet may construct, install, operate and maintain a connection facility (the "POP-to-POP Interconnect Facility")
-------------------------------- between the PSINet premises and the IXC Premises so long as PSINet meets or exceeds the standards set forth in Section 7.2. PSINet shall provide at its expense all necessary rights-of-way, permits, equipment and IXC-approved materials to construct and install each POP-to-POP Interconnect Facility, including, but not limited to, cables and conduit and any labor charges associated therewith. If necessary, and where applicable, IXC shall use


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commercially reasonable efforts to provide PSINet, at PSINet's expense, access to existing building entrance facilities, if available, to access and exit IXC POPs. The demarcation point for PSINet shall be in the IXC POPs at the Connect Panel or the DSX panel, as appropriate.


3.2 OWNERSHIP. PSINet shall retain ownership of any portion of the POP-to-POP Interconnect Facility that is located on the IXC Premises during the term of this Agreement; provided, however, that title to any part of the POP-to- POP Interconnect Facility within the IXC Premises shall be transferred to IXC upon expiration or termination of this Agreement.


3.3 MAINTENANCE AND CHANGES. PSINet shall be responsible for maintenance and repair of the POP-to-POP Interconnect Facility on PSINet's side of the point of demarcation. Any improvement, modification, addition to, relocation, or removal of, the POP-to-POP Interconnect Facility by PSINet at the IXC Premises is subject to prior review and written approval by IXC Transmission Engineering Department and the cost of such improvement, modification, addition to, relocation, or removal of, the POP-to-POP Interconnect Facility will be the sole responsibility of PSINet. IXC's approval will not be unreasonably withheld and in the event IXC fails to respond to PSINet's written request within thirty (30) days of receiving PSINet's request for such changes, IXC's shall be deemed to have approved PSINet's request.


4. INTERCONNECTION TO THIRD PARTIES. Interconnect facilities to interconnect PSINet's equipment to other parties within IXC's POPs shall be installed and maintained subject to available space at the IXC POPs and under the following terms and conditions:


(a) IXC shall provide PSINet at each POP with free interconnections
(crossconnects) between PSI and third parties in units of DS-3's, as
specified by PSINet, not to exceed, in the aggregate, the bandwidth
capacity of the circuits PSINet has ordered at the POP. Such free
interconnections are not transferable to other POPs and any other
connections shall be referred to as "Additional Interconnects" subject
to the charges in Exhibit E to the Purchase Agreement. Should
subsequent interconnections become necessary after initial
installation, up to the aggregate bandwidth capacity of the circuits
PSINet has ordered at the POP, realignment of the interconnections
shall be subject to the preceding and to the reconfiguration charges
as indicated in Exhibit E. All such interconnections shall be subject
to the provisions of Section 15.5 of the Purchase Agreement.


(b) PSINet shall reimburse IXC for the capital cost to establish a point
of demarcation for Additional Interconnects that PSINet requests IXC
to provide. This demarcation shall be in the IXC equipment room and
shall be either the IXC standard DSX termination or fiber distribution
frame as is applicable for the interconnects required.


(c) IXC shall charge PSINet a one time charge and a monthly recurring
charge for each Additional Interconnect in the IXC POP. These charges
shall be an amount equal to the then standard ancillary pricing for
such service set forth on Exhibit E to the


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Purchase Agreement. Nothing in this Agreement shall prevent or in any
way limit IXC's ability to charge third parties for interconnection.


(d) In the event IXC chooses to cross-connect with an Additional
Interconnect party for which PSINet has paid a charge to IXC under
Section 4(b), IXC shall at IXC's option: (i) refund to PSINet such
charge or (ii) shall pay PSINet a monthly cross-connect fee negotiated
by the parties at such time.


(e) IXC's maintenance responsibility shall be limited to the demarcation
point and the associated cross connect at that point.


(f) PSINet shall not use any interconnect facility to allow third parties
collocated in any POP to interconnect with each other at that POP.


5. NOTICE TO INTERCONNECT OR COLLOCATE. No later than forty-five (45) days prior to PSINet's planned installation of its Equipment or POP-to-POP Interconnect Facilities at any IXC Premises, PSINet shall provide to IXC notice of its desire to interconnect/locate in a particular IXC Premise, a copy of
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