DETERMINATION OF BREACH AND TERMINATION OF AGREEMENT A. Prior to making a determination that the Applicant has failed to comply in any material respect with the terms of this Agreement or to meet any material obligation under this Agreement, the District shall provide the Applicant with a written notice of the facts which it believes have caused the breach of this Agreement, and if cure is possible, the cure proposed by the District. After receipt of the notice, the Applicant shall be given ninety (90) days to present any facts or arguments to the Board of Trustees showing that it is not in breach of its obligations under this Agreement, or that it has cured or undertaken to cure any such breach.
B. If the Board of Trustees is not satisfied with such response or that such breach has been cured, then the Board of Trustees shall, after reasonable notice to the Applicant, conduct a hearing called and held for the purpose of determining whether such breach has occurred and, if so, whether such breach has been cured. At any such hearing, the Applicant shall have the opportunity, together with their counsel, to be heard before the Board of Trustees. At the hearing, the Board of Trustees shall make findings as to:
i. whether or not a breach of this Agreement has occurred;
ii. whether or not such breach is a Material Breach; iii. the date such breach occurred, if any;
Effective Date Term and Termination 1.2.1 The effective date of this Agreement (the “Effective Date”) shall be as follows: (i) unless this Agreement is a successor agreement to an effective interconnection agreement between the Parties under Sections 251/252 of the Act, then the Effective Date of this Agreement shall be ten (10) calendar days after the Illinois Commerce Commission (“ICC”) approves this Agreement under Section 252(e) of the Act or, absent such ICC approval, the date this Agreement is deemed approved under Section 252(e)(4) of the Act; or (ii) if this Agreement is a successor agreement to an effective interconnection agreement between the Parties under Sections 251/252, then the Effective Date shall be the date upon which the ICC approves the Agreement under the Act, or absent such ICC approval, the date this Agreement is deemed approved under Section 252(e)(4) of the Act.
1.2.2 The term of this Agreement shall expire on February 4, 2007 (the “Term”). Absent the receipt by one Party of written notice from the other Party not earlier than 180 calendar days prior to the expiration of the Term to the effect that such Party does not intend to extend the Term (Notice of Expiration), this Agreement shall remain in full force and effect on and after the expiration of the Term until terminated by either Party.
1.2.2.1 If either Party serves Notice of Expiration pursuant to Section 1.2.2, CLEC shall have twenty (20) calendar days to provide SBC ILLINOIS written confirmation if CLEC wishes to pursue a successor agreement with SBC ILLINOIS or alternatively, if CLEC wishes to allow the current Agreement to expire. If CLEC wishes to pursue a successor agreement with SBC ILLINOIS, CLEC shall attach to its written confirmation or Notice of Expiration, as applicable, a written request to commence negotiations with SBC ILLINOIS under Sections 251/252 of the Act. Upon receipt of CLEC’s Section 252(a)(1) request, the Parties shall commence good faith negotiations on a successor agreement.
1.2.2.1.1 If CLEC does not affirmatively state that it wishes to pursue a successor agreement with SBC ILLINOIS in its, as applicable, Notice of Expiration or the written confirmation required after receipt of SBC ILLINOIS’ Notice of Expiration, then the rates, terms and conditions of this Agreement shall continue in full force and effect until the later of: 1) the expiration of the Term of this Agreement, or 2) the expiration of ninety (90) calendar days after the date CLEC provided or received Notice of Expiration. Unless otherwise agreed by the Parties, if the Term of this Agreement has expired, on the ninety-first (91st) day following CLEC provided or received Notice of Expiration, the Parties shall have no further obligations under this Agreement except those described in Section 1.44 of this Agreement, including but not limited to the obligations described in Section 1.2.4, below.
1.2.3 The terms and conditions and rates and charges contained herein will continue to apply until the earlier of: (i) termination by either Party under the terms of this Agreement; (ii) the date a successor agreement becomes effective: or (iii) the date that is ten (10) months after the date on which SBC ILLINOIS received CLEC’s Section 252(a)(1) request, unless an arbitration petition has been filed by either Party, in which case (ii) applies.
1.2.4 CLEC may terminate this Agreement in whole or in part at any time for any reason upon sixty (60) days prior notice but its liabilities and obligations shall continue in accordance with Section 1.44 below.
1.2.5 Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement and the provision of any Interconnection, Resale Services, Network Elements, functions, facilities, products or services provided pursuant to this Agreement, at the sole discretion of the terminating Party, in the event that the other Party fails to perform a material obligation or breaches a material term of this Agreement, other than as set forth in Section 10, and the other Party fails to cure such nonperformance or breach within forty-five (45) calendar days after written notice thereof. Any termination of this Agreement pursuant to this Section 1.2.5 shall take effect immediately upon delivery of written notice to the other Party that it failed to cure such nonperformance or breach within forty-five (45) calendar days after written notice thereof.
1.2.6 As long as a non-paying Party has disputed unpaid amounts in good faith and pursuant to the terms of this Agreement, non- payment is not to be deemed, nor should it be construed as, a material breach of this Agreement.
1.2.7 In the event of expiration or termination of this Agreement other than pursuant to Section 1.2.5, SBC ILLINOIS and CLEC shall cooperate in good faith to effect an orderly and timely transition of service under this Agreement to CLEC or to another vendor. So long as CLEC fulfills said obligation to effect an orderly and timely transition of service, SBC ILLINOIS shall not terminate service to CLEC’s end users and such service shall be provided pursuant to the terms of the interconnection agreement during this transition period. SBC ILLINOIS and CLEC shall continue their responsibilities under the terms and conditions of the terminated or expired Agreement for any order submitted to SBC ILLINOIS in connection with this transition of service.
