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EXHIBIT 10.18
IXC
MASTER SERVICE AGREEMENT
This Agreement for telecommunications services is made as of the date of last
execution below (the "Effective Date") and entered into by and between IXC
Carrier, Inc./ IXC Long Distance, Inc./ IXC Broadband Services, Inc.
(generically "IXC"), a Nevada/Delaware corporation with its principal place of
business at 5000 Plaza on the Lake, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Supplier"),
and Universal Access, Inc., an Illinois corporation with its principal place of
business at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
("Customer").
WHEREAS, Customer desires to obtain telecommunications services as described
below (the "Service") from Supplier, and Supplier is willing to provide the
Service for the rates attached hereto.
NOW, THEREFORE, Customer and Supplier hereby mutually agree as follows:
CREDIT REQUIREMENTS: Deposit. Customer shall pay Supplier in advance a deposit
equal to the monthly recurring charges plus installation for each circuit
ordered with Supplier hereunder.
SERVICE, TERM AND RATES: Supplier agrees to provide and Customer agrees to
purchase Service(s) indicated below. This agreement, including any terms and
conditions, addenda, schedules, supplements or exhibits which are attached
hereto and incorporated herein, constitutes the entire agreement (the
"Agreement") by Supplier and Customer pertaining to the subject matter(s) hereof
and supersedes all prior and contemporaneous agreements and understandings in
connection herewith.
SERVICE TYPE:
SWITCHED SERVICE: BROADBAND SERVICE:
----------------- ------------------
_______ Xclusive ___________ ATM
_______ Xnet ___________ Frame Relay
PRIVATE LINE SERVICE: ___________ Network Management Services
X Digital ___________ Training
_________ Optical CUSTOMER INTERFACE:
___________ Rack Space & Power
___________ Shelf Space
___________ Collocation
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last
written below.
IXC UNIVERSAL ACCESS, INC.
BY: /s/ XXXX X. XXXXXXX BY: /s/ XXXXXXX X. XXXXX
----------------------------------- ----------------------------------------
NAME: XXXX X. XXXXXXX NAME: XXXXXXX X. XXXXX
TITLE: EXECUTIVE VICE-PRESIDENT TITLE: PRESIDENT
----------------------------- ----------------------------------
DATE: 11/6/97 DATE: 10/27/97
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FULL BUSINESS ADDRESS: FULL BUSINESS ADDRESS:
0000 XXXXX XX XXX XXXX, XXXXX 000 0000 XXXX XXXXX XXXXXX, XXXXX 000
XXXXXX, XXXXX 00000-0000 XXXXXXX, XXXXXXXX 00000
TELEPHONE: 000-000-0000 TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000 FACSIMILE: 000-000-0000
BILLING CONTACT: XXXXX XXXXXXX
TELEPHONE: 000-000-0000
APPROVED AS TO FORM
LEGAL DEPT.
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MASTER SERVICE AGREEMENT
TERMS & CONDITIONS
1. CREDIT. All Services ordered hereunder are subject to credit approval.
Customer shall complete a credit application form attached hereto as
Exhibit A.
2. PROVISION OF BALANCE SHEET. Prior to commencement of Service, Customer
shall provide Supplier with financial statements including a
consolidated balance sheet of Customer as of the end of the most recent
quarter and consolidated statements of income and retained earnings of
such quarter and the fiscal year to date through such quarter, all in
reasonable detail and certified by Customer's chief financial officer as
having been prepared in accordance with generally accepted accounting
principles, consistently applied. Customer shall provide updated
financial statements as reasonably requested by Supplier.
3. PAYMENT TERMS. Invoices for Service are due and payable within thirty
(30) days of the date of invoice (unless otherwise indicated in the
Credit Requirements section of the Master Service Agreement), without
demand or set off by Customer. Payments not received within thirty (30)
days of the date of invoice are considered past due. In addition to
Supplier undertaking any of the actions set forth in this Agreement, if
any invoice is not paid when due: (i) a late charge shall accrue equal
to 1-1/2% (or the maximum legal rate, if less) of the unpaid balance per
month; (ii) Supplier may require a Security Deposit or other forms of
security acceptable to Supplier; and/or (iii) Supplier may take any
action in connection with any other right or remedy Supplier may have
under this Agreement in law or in equity.
4. BILLING DISPUTES. If Customer in good faith disputes any portion of any
Supplier invoice, Customer shall submit to Supplier, within 30 days
following the date of the invoice, full payment of the undisputed
portion of the invoice and written documentation identifying and
substantiating the disputed amount. If Customer does not report a
dispute within the 30 day period, Customer shall have waived its dispute
rights for that invoice. Supplier and Customer agree to use their
respective best efforts to resolve any dispute within fifteen (15) days
after Supplier receives written notice of the dispute from Customer. Any
disputed amounts resolved in favor of Customer shall be credited to
Customer's account on the next invoice following resolution of the
dispute. Any disputed amounts determined to be payable to Supplier shall
be due within ten (10) days of the resolution of the dispute.
Any dispute arising out of or relating to this Agreement which has not
been resolved by the good faith efforts of the parties will be settled
by binding arbitration conducted expeditiously in accordance with
Section 16.
5. ADDITIONAL ASSURANCES. If at any time during the term of this Agreement
there is a material and adverse change in Customer's financial condition
or business prospects, which shall be determined by Supplier in its sole
and absolute discretion, then Supplier may demand that Customer deposit
with Supplier a security deposit (the "Security Deposit"), pursuant to
Supplier's standard terms and conditions, as security for the full and
faithful performance of Customer of the terms, conditions and covenants
of this Agreement; provided, however, that in no event shall the amount
of the Security Deposit ever exceed two months' estimated Usage Charges
and other amounts payable by Customer to Supplier hereunder.
6. SUBJECT TO LAWS. Customer hereby represents and warrants that it is
certified to do business in all jurisdictions in which it conducts
business and is in good standing in all such jurisdictions. Customer
further represents and warrants that it is certified by the proper
regulatory agencies to provide interstate, intrastate and international
long distance services to End-Users in those jurisdictions where such
services are to be provided by Customer. Customer shall keep current
during the term of this Agreement, copies of its Certificates of Public
Convenience and Necessity or similar documents certifying Customer's
interstate, intrastate, or international operating authority in any
local, state, or federal jurisdiction (collectively, "Service Compliance
Certificates") and furnish copies thereof to Supplier within ten days of
written request by Supplier. Supplier reserves the right to refuse or
withhold Service in any jurisdiction in which Customer's Service
Compliance Certificate has not been furnished to Supplier in a timely
manner. Customer shall defend and indemnify Supplier from any losses,
expenses, demands and claims in connection with Customer's failure to
provide Supplier with such Service Compliance Certificates. Such
indemnification includes costs and expenses (including reasonable
attorney's fees) incurred by Supplier in settling, defending or
appealing any claims or actions brought against it relating to
Customer's failure to provide such Service Compliance Certificates.
7. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof, shall be
governed by the laws of the State of Texas without regard to its
principles of choice of law.
8. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given as of the date of
delivery, facsimile transmission or mailing, and if mailed, first class
postage prepaid, certified or registered mail, return receipt requested
to the following persons, unless contrary instructions are given by the
parties in writing:
If to Supplier: IXC
5000 Plaza on the Lake, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Contract Administration
If to Customer: Universal Access, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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9. WAIVER OF BREACH OR VIOLATION NOT DEEMED CONTINUING. The waiver by
either party of a breach or violation of any provision of this Agreement
shall not operate as or be construed to be a waiver of any subsequent
breach hereof.
10. BANKRUPTCY. In the event of the bankruptcy or insolvency of either party
hereto or if either party hereto shall make an assignment for the
benefit of creditors or take advantage of any act or law for relief of
debtors, the other party to this Agreement shall have the right to
terminate this Agreement without further obligation or liability on its
part.
11. BUSINESS RELATIONSHIP. This Agreement shall not create any agency,
employment, joint venture, partnership, representation, or fiduciary
relationship between the parties. Neither party shall have the authority
to, nor shall any party attempt to, create any obligation on behalf of
the other party.
12. INDEMNITY.
A. Each party shall indemnify, defend, release and hold harmless
the other party and all of its officers, agents, directors,
shareholders, subcontractors, subsidiaries, employees and other
affiliates (collectively "Affiliates") from and against any action,
claim, court cost, damage, demand, expense, liability, loss, penalty,
proceeding or suit, (collectively, together with related attorneys'
fees; including costs and disbursements, "Claims") imposed upon either
party by reason of damages to property or injuries, including death, as
a result of an intentional or a negligent act or omission on the part of
the indemnifying party or any of its Affiliates in connection with: (i)
the performance of this Agreement; or (ii) other activities relating to
the property or facilities which are the subject of this Agreement,
whether or not the Claims result from a sole negligent act or omission
on the part of the indemnifying party, whether the Claims result from
the concurrent negligent act or omission on the part of both parties, or
whether the Claims result from the negligent act or omission of the
indemnifying party and some other third party. In the event a Claim
relates to the negligence of both parties, the relative burden of the
Claim shall be attributed equitably between the parties in accordance
with the principles of comparative negligence.
B. In the event any action shall be brought against the indemnified
party, such party shall immediately notify the indemnifying party in
writing, and the indemnifying party, upon the request of the indemnified
party, shall assume the defense thereof on behalf of the indemnified
party and its Affiliates and shall pay all expenses and satisfy all
judgments which may be incurred by or rendered against the indemnified
party or its Affiliates in connection therewith, provided that the
indemnified party shall not be liable for any settlement of any such
action effected without its written consent.
C. Notwithstanding the termination of this Agreement for any
reason, this Section 12 shall survive such termination.
13. INSURANCE. Throughout the term of this Agreement and any extension
thereof, each party shall maintain and, upon written request, shall
provide to the other proof of adequate liability insurance:
(i) Worker's compensation insurance up to the amount of the
statutory limit in the state or states where work is to be performed;
(ii) Employer's liability insurance with a limit of not less than
$200,000 per claim with an all-states endorsement;
(iii) Comprehensive general liability insurance with a limit of not
less than $1,000,000 per occurrence for bodily injury liability and
property damage liability, including coverage extensions for blanket
contractual liability, personal injury liability and products and
completed operations liability; and
(iv) Comprehensive Auto Liability insurance with a limit of not less
than $1,000,000 per accident for Bodily Injury Liability and Property
Damage Liability arising out of the ownership, maintenance or use of any
vehicle in the performance of this Agreement.
14. AUTHORIZED USE OF SUPPLIER NAME. Without Supplier's prior written
consent, Customer shall not: (i) refer to itself as an authorized
representative of Supplier in promotional, advertising or other
materials; or (ii) use Supplier's logos, trade marks, service marks, or
any variations thereof in any of its promotional, advertising or other
materials or in any activity using or displaying Supplier's name or the
Services to be provided by Supplier. Customer agrees to change or
correct, at Customer's expense, any such material or activity which
Supplier, in its sole judgment, determines to be inaccurate, misleading
or otherwise objectionable in relation to using or marketing Supplier's
services. Customer is explicitly authorized to only use the following
statements in its sales literature: (i) "Customer utilizes the
Supplier's network"; (ii) "Customer utilizes Supplier's facilities";
(iii) "Supplier provides only the network facilities"; and (iv)
"Supplier is our network services provider".
15. ASSIGNMENT. Neither party hereto may assign this Agreement without the
express written consent of the other party hereto, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing: (i) a
security interest in this Agreement may be granted by Supplier to any
lender to secure borrowings by Supplier or any of its affiliates; (ii)
Supplier may assign all its rights and obligations hereunder to any
Affiliate; and (iii) any subsidiary of Supplier may assign any amounts
due from Customer under any Supplement to Supplier for billing purposes.
16. BINDING ARBITRATION. The parties will attempt in good faith to resolve
any controversy or claim arising out of or relating to this Agreement
promptly through discussions between themselves at the operational
level. In the event a resolution cannot be reached, such controversy or
claim shall be negotiated between appointed counsel or senior executives
of the parties who have authority to settle the controversy.
The disputing party shall give the other party written notice of the
dispute. If the parties fail to resolve such controversy or claim within
thirty days of the disputing party's notice, either party may seek
arbitration as set forth below.
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Any controversy or claim arising out of or relating to this Agreement,
or a breach of this Agreement, shall be finally settled by arbitration
in Austin, Texas and shall be resolved under the laws of the State of
Texas. The arbitration shall be conducted before a single arbitrator in
accordance with the commercial rules and practices of the American
Arbitration Association then in effect.
The arbitrator shall have the power to order specific performance if
requested. Any award, order, or judgment pursuant to such arbitration
shall be deemed final and binding and may be enforced in any court of
competent jurisdiction. The parties agree that the arbitrator shall have
no power or authority to make awards or issue orders of any kind except
as expressly permitted by this Agreement, and in no event shall the
arbitrator have the authority to make any award that provides for
punitive or exemplary damages. All such arbitration proceedings shall be
conducted on a confidential basis. The arbitrator may, as part of the
arbitration award, permit the substantially prevailing party to recover
all or part of its attorney's fees and other out-of-pocket costs
incurred in connection with such arbitration. Customer may, at its
option, continue to accept what it considers to be below-standard
Services and pay the charges hereunder relating thereto during such
pendency of such arbitration, without prejudice thereto.
17. LEGAL CONSTRUCTION. In the event one or more of the provisions contained
in this Agreement shall, for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
18. NO PERSONAL LIABILITY. Each action or claim of any party arising under
or relating to this Agreement shall be made only against the other party
as a corporation, and any liability relating thereto shall be
enforceable only against the corporate assets of such party. No party
shall seek to xxxxxx the corporate veil or otherwise seek to impose any
liability relating to, or arising from, this Agreement against any
shareholder, employee, officer or director of the other party. Each of
such persons is an intended beneficiary of the mutual promises set forth
in this Section and shall be entitled to enforce the obligations of this
Section.
19. NOTICE OF BREACH OF AGREEMENT. To be effective, written notice of any
material breach (except Payment Default) must prominently contain the
following sentences in capital letters: "THIS IS FORMAL NOTICE OF A
BREACH OF CONTRACT. FAILURE TO CURE SUCH BREACH WILL HAVE SIGNIFICANT
LEGAL CONSEQUENCES."
20. LIMITATION OF LIABILITY. Supplier's liability arising out of delays in
restoration of the Services to be provided under this Agreement or out
of mistakes, accidents, omissions, interruptions, or errors or defects
in transmission in the provision of Services or any other
telecommunications services, shall be subject to the limitations set
forth above and in the applicable Tariff. IN NO EVENT SHALL SUPPLIER BE
LIABLE TO CUSTOMER OR ANY OF THE CUSTOMER'S OWN CUSTOMERS OR ANY OTHER
THIRD PARTY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY
DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL, PUNITIVE, OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY
KIND OR NATURE WHATSOEVER, ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS,
OMISSIONS, INTERRUPTIONS, OR DEFECTS IN TRANSMISSION, OR DELAYS,
INCLUDING THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL
AUTHORITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
OBLIGATIONS OF SUPPLIER PURSUANT TO THIS AGREEMENT; AND IN NO EVENT
SHALL SUPPLIER BE LIABLE AT ANY TIME FOR ANY AMOUNT IN EXCESS OF THE
AGGREGATE AMOUNT IT HAS PRIOR TO SUCH TIME COLLECTED FROM CUSTOMER WITH
RESPECT TO SERVICES DELIVERED HEREUNDER. SUPPLIER MAKES NO WARRANTY TO
CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS
OR FITNESS FOR ANY PURPOSE OF ANY SERVICE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY
SUPPLIER ARE HEREBY EXCLUDED AND DISCLAIMED. For purposes of this
Section, the term "Supplier" shall be deemed to include Supplier, its
shareholders, directors, officers and employees, and any person or
entity assisting Supplier in its performance pursuant to this Agreement.
21. SYSTEM MAINTENANCE. In the event Supplier determines to interrupt
Services for the performance of routine system maintenance, Supplier
will use reasonable efforts to notify Customer prior to the interruption
and to conduct such maintenance during non-peak hours. In no event shall
interruption for system maintenance constitute a Failure of Performance
by Supplier.
22. MAINTENANCE & TROUBLE REPORTING. Supplier's standard fees for Customer
maintenance support services are as follows:
Maintenance services shall be defined as all work performed by Supplier
on equipment provided by or on behalf of the Customer, or supervision of
the Customer's work within Supplier's terminal facilities. Maintenance
Service charges are not billed for troubles found within that portion of
a circuit provided by Supplier. The following billing rates apply for
these services:
A. $75 per hour (4 hour minimum-if dispatch is required) Monday
through Friday during the business hours of 8:00 a.m. - 5:00 p.m. local
time, exclusive of the following holidays: New Year's Day, President's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the
day after Thanksgiving and Christmas Day.
B. $95 per hour (4 hour minimum) for overtime work
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done after business hours (defined above) and/or on holidays (defined
above) and/or all day on Saturdays and Sundays.
C. As requests for maintenance services are typically made via
telephone, Supplier must be advised in writing as to the person(s) who
are authorized to request service. It is the Customer's responsibility
to keep Supplier apprised of any changes to its list of
representative(s).
D. To request technical assistance and help under the maintenance
services, a call must be made to Supplier's Network Control Center at
0-000-000-0000. This number should be used for Supplier technical
assistance, troubleshooting or testing of circuits, not for service
impairment or outages. The person calling in must be on the authorized
list in order to commit for charges for this technical assistance. If
that person is not on the list, the request cannot be accommodated.
The Network Control Center personnel will take the call, record the
caller's name and phone number along with facts concerning the
assistance and support needed. The caller will then be given the number
of the "Assistance Ticket." Upon completion of work, this "Assistance
Ticket" will be given to Supplier's Accounting Department, and the
Customer will subsequently be billed based upon the information on that
ticket. A copy will be attached to the invoice.
Except for emergencies, Supplier's technicians cannot be dispatched
unless requests are made in accordance with the above call-out
procedure.
23. SUBJECT TO LAWS. This Agreement is subject to, and Customer agrees to
comply with, all applicable federal, state and local laws, and
regulations, rulings and orders of governmental agencies, including, but
not limited to, the Communications Act of 1934, the Telecommunications
Act of 1996, the Rules and Regulations of the Federal Communications
Commission ("FCC") and state public utility or service commissions
("PSC"), tariffs and the obtaining and continuance of any required
certification, permit, license, approval or authorization of the FCC and
PSC or any governmental body, including, but not limited to regulations
applying to feature group termination and Letter of Agencies ("LOAs").
24. FCC PERMITS, AUTHORIZATION AND FILINGS. Supplier shall take all
necessary and appropriate steps, as soon as possible, to procure from
the FCC the necessary authorizations, if any, to deliver Services
hereunder to Customer and whatever approvals are necessary from any
other federal or state agency. In the event that Supplier cannot obtain
all necessary federal, state or local authority to provide Services
hereunder, Supplier shall promptly give written notice thereof to
Customer, and such notice shall constitute termination without liability
of either party hereto of all obligations hereunder.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken
together shall constitute one document.
26. CONFIDENTIAL INFORMATION AND NONSOLICITATION. "Confidential Information"
shall mean all information disclosed in writing by one party to the
other party which is clearly marked "CONFIDENTIAL" by the disclosing
party at the time of disclosure. "Confidential Information" shall also
include certain oral information disclosed by one party to the other
party, provided that the disclosing party designates such information as
confidential at the time of disclosure and gives recipient a written
summary of such information within five business days after the oral
disclosure was made. Notwithstanding the foregoing, all information
concerning the traffic volume/distribution of Supplier, pricing rates,
and customer lists is hereby deemed to be Confidential Information
regardless of whether it is so identified. The term "Confidential
Information" does not include any information which: (i) was already
known by the receiving party free of any obligation to keep it
confidential at the time of its disclosure by the disclosing party, (ii)
becomes publicly known through no wrongful act of the receiving party,
(iii) is rightfully received from a third person without knowledge of
any confidentiality obligation, (iv) is independently acquired or
developed without violating any of the obligations under this Agreement,
(v) is disclosed to a third person by the disclosing party without
similar confidentiality restrictions on such third persons rights, or
(vi) is approved for release by written authorization of the disclosing
party.
Further, the recipient may disclose Confidential Information pursuant to
any judicial or governmental request, requirement or order. The
recipient, however, shall take reasonable steps to give the disclosing
party sufficient prior notice to contest such request, requirement or
order. Confidential Information shall remain the property of the
disclosing party, and shall be returned to the disclosing party or
destroyed upon request of the disclosing party. Supplier may make such
Confidential Information available to its lenders.
Accordingly, in the event of a breach or threatened breach of the
foregoing provisions, Supplier shall be entitled to an injunction or
restraining order, in addition to such other rights or remedies as may
be available under this Agreement, at law or in equity, including but
not limited to money damages.
27. FORCE MAJEURE. Supplier shall not be liable for any failure of
performance hereunder due to causes beyond its reasonable control,
including, but not limited to: acts of God, fire, explosion, vandalism,
cable cut, storm or other similar catastrophes; any law, order,
regulation, direction, action or request of the United States
government, or of any other government, including state and local
governments having jurisdiction over either of the parties, or of any
department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more of said governments, or of any civil
or military authority; national emergencies; insurrections; riots; wars;
or strikes, lock outs, work stoppages or other labor difficulties.
28. SURVIVAL. The covenants and agreements of Customer contained in this
Agreement with respect to payment of amounts due, confidentiality and
indemnification shall
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survive any termination of this Agreement. The rights and obligations
under this Agreement shall survive any merger or sale of either party
and shall be binding upon the successors and permitted assigns of each
party.
29. REGULATORY. Customer is responsible for payment of, or reimbursement to
Supplier for, Universal Service Fund and Lifeline Assistance Charges
(Presubscribed line charges) set forth in the National Exchange Carrier
Association (NECA) Tariff FCC #5, sections 8.5., 8.5.2 and 17.1.4 (A) &
(B), as the same may be amended from time to time, or any successor
tariffs or sections, with respect to any Customer ANI's subscribed to
Supplier. In addition, with respect to the Services, Customer is
responsible for payment of, or reimbursement to Supplier for: (i)
telecommunication relay service charges required by the Americans with
Disabilities Act or otherwise (both federal and state); (ii)
interexchange carrier fees payable to the FCC under the Omnibus Budget
Reconciliation Act of 1993 or otherwise; and (iii) universal service
fund charges, intraLATA compensation charges and other federal or state
fees or charges imposed on Supplier. Supplier will furnish, at
Customer's request, documentation to support the fees or charges payable
by Customer to Supplier pursuant to this Section 29.
Customer shall furnish to Supplier valid and appropriate tax exemption
certificates for all applicable jurisdictions (federal, state and local)
in which it performs customer billing. Customer is responsible for
properly charging tax to its subscribers and for the proper and timely
reporting and payment of applicable taxes to the taxing authorities and
shall defend and indemnify Supplier from payment and reporting of all
applicable federal, state and local taxes, including, but not limited
to, gross receipts taxes, surcharges, franchise fees, occupational,
excise and other taxes (and penalties and interest thereon), relating to
the Services. Such indemnification includes costs and expenses
(including reasonable attorney's fees) incurred by Supplier in settling,
defending or appealing any claims or actions brought against it relating
to said taxes. If Customer fails to provide and maintain the required
certificates, Supplier may charge Customer and Customer shall pay such
applicable taxes.
The amounts payable by Customer under this Agreement do not include any
state or local sales or use taxes, or utility taxes, however designated,
which may be levied on the goods and services provided by Supplier
hereunder. With respect to such taxes, if applicable, Customer shall
furnish Supplier with an appropriate exemption certificate or pay to
Supplier, upon timely presentation of invoices therefore, such amounts
thereof as Supplier may be by law required to collect or pay. Any and
all other taxes, including but not limited to franchise, net or gross
income, license, occupation, and real or personal property taxes, shall
be timely paid by Supplier. Customer shall pay to Supplier any such
taxes that Supplier may be required to collect or pay.
30. OBLIGATIONS SEVERAL AND NOT JOINT. Each party shall be responsible only
for its own performance under the Agreement (including any attachments,
exhibits, schedules or addenda) and not for that of any other party.
31. AMENDMENTS. This Agreement may only be modified or supplemented by an
instrument in writing executed by each party.
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PRIVATE LINE SERVICE SUPPLEMENT
DIGITAL SERVICE
1. SCOPE AND RATES. Supplier shall use its best efforts (considering the
needs of its other customers) to provide Service for which a Purchase
Order has been accepted. A form of Purchase Order is attached hereto as
Exhibit A. The rates for Service are set forth in Exhibit D, unless
otherwise specified in the applicable Purchase Order. Such rates are
valid for the term of this Agreement. Supplier may thereafter change
such rates, but not for any Circuit then in service. Customer may also
order the services listed in Exhibit B, subject to availability.
2. TERM. The Agreement is for a term of [***] years commencing on the
Effective Date and shall continue through the end of the Circuit Lease
Term which is last to expire. If Service continues after such Circuit
Lease Term, the applicable rates will be equal to 120% of the rates
hereunder and Service may be terminated by either party upon 30 days'
notice.
3. INVOICE. Customer will be invoiced monthly for: (i) the monthly lease
rate (prorated for any partial month) for each Available Circuit; and
(ii) the charges for other services received. The first invoice shall be
for the first two months; each invoice thereafter shall be for the
following month.
4. TERMINATION. Customer may terminate any Circuit upon 90 days' notice;
provided that if termination occurs: (i) prior to the Activation Date,
Customer shall reimburse Supplier for all costs of the implementation of
such Circuit; or (ii) on or after such date Customer shall pay: (A) all
charges for Service previously rendered; and (B) the amount due through
the end of the applicable Circuit Lease Term (Supplier shall try to
re-lease such Circuit for such term, refunding to Customer the amount so
collected, if any). If Supplier: (i) fails to provide Service within six
months of the Requested Service Date; or (ii) fails to cure a material
breach hereof within 45 days of notice from Customer, Customer may, as
its only remedy, terminate the affected Circuit.
5. OUTAGE CREDITS. Supplier shall give Customer a credit in accordance with
its then-current outage policy for periods in which any Circuit loses
continuity and fails to comply with applicable specifications. Such
credit shall be Customer's sole remedy with respect to such an event;
provided, however, that no such credits shall be allowed and Supplier
shall not be liable for any Service defect from causes outside its
control, including accidents, cable cuts, fires, floods, emergencies,
government regulation, wars, or acts of God. SUPPLIER DISCLAIMS ALL
EXPRESS AND IMPLIED WARRANTIES RELATING TO SERVICE, INCLUDING BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT SET FORTH
HEREIN. CUSTOMER SHALL INDEMNIFY SUPPLIER FROM ANY CLAIMS MADE BY ANY
CUSTOMER OF CUSTOMER.
6. DEFINITIONS. For purposes hereof: "Available" means all necessary
Supplier equipment for a Circuit has been installed. "Activation Date"
means the date a Circuit is first made Available to Customer. "Circuit"
means a DS-O, DS-1 or a DS-3. "Circuit Lease Term" means the term of a
Circuit specified in the applicable Purchase Order. "Circuit Mileage"
means the length of a Circuit specified in the applicable Purchase
Order. "DS-0" means a circuit complying with TR-TSY-000333 "Switched and
Special Access Services - Transmission Parameter Limits and Interface
Combinations" Issue 1, July 1990. "DS-1" means a circuit complying with
AT&T Tech. Ref. Pub. 62411, December 1990,with Xxxxxxxx 0, Xxxxx 0000,
and Xxxxxxxx XX-XXX-000000, Issue 5, December 1993. "DS-3" means a
circuit meeting the specifications set forth in AT&T Technical Reference
Pub. 54014 Addendum 1, November 1992 and Xxxxxxxx XX-XXX-000000, Issue
5, December 1993. "Purchase Order" means any Customer purchase order
accepted by Supplier. "Requested Service Date" means the date Service on
a Circuit is requested to commence specified in the applicable Purchase
Order. "Service" means transmission service provided between North
American DSX standard cross-connect panels located in Supplier's
terminal locations.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
1
8
EXHIBIT A
Req'st Svc Date:________ IXC - PRIVATE LINE OFFICE USE ONLY
Accepted Earlier Activation: MARKET SERVICE ORDER (MSO) MSO #______________
Y______N_______
CKT ID:_____________ RELATED MSO:____________
PURCHASE ORDER FORM FOR CUSTOMER ORDER NO:__________
Pursuant to the MASTER SERVICE AGREEMENT by and between IXC as Supplier and
__________________________ as Customer, dated______________, 19___, Customer
orders and Supplier shall provide the following Digital Transmission Service:
QTY RATE TERM MILES
New ________ Renew __________
Cancel ________ Disconnect __________ DS-3 _____ _____ _____ _____
Change ________ Expedite Y____ N___ DS-1 _____ _____ _____ _____
On Net ________ Off Net __________ DS0 _____ _____ _____ _____
Protocol________ Reconfigure__________ CIF _____ _____ _____ _____
Other ________________________________ Other _____ _____ _____ _____
Customer Contact:____________________ Phone #: ________________ Fax # _______________
Technical Contact____________________ Phone #: ________________ Fax # _______________
CITY LOCATION A: ____________________ CITY LOCATION B:_________________________________
Special____________ Switched____________ Special________________ Switched________________
Bypass Y_____N_____ Owner ____________ Bypass Y_______N_______ Owner ________________
LESSOR TO PROVIDE CFA: Y_____N_____ LESSOR TO PROVIDE: CFA: Y_____N_____
LOA: Y_____N_____ ASR: Y_____N_____ LOA: Y_____N_____ ASR: Y_____N_____
CUSTOMER (LESSEE) TO PROVIDE: CUSTOMER (LESSEE) TO PROVIDE:
LOA: Y___N___ Coordinated Convert Y___N___ LOA: Y___N___ Coordinated Convert Y___N____
CIF Arrangement Y___N___ CIF Attach Y___N___ CIF Arrangement Y___N___ CIF Attach ___N___
Special Instructions________________________ Special Instructions_________________________
--------------------------------------------------------------------------------
MONTHLY LEASE RATE: NON RECURRING CHARGES:
Monthly IXC Change: $__________ Installation $__________ ASR: $_____
Eqpt. Lease Charge: $__________ Installation $__________ Reconfig $_____
Echo Canceller: $__________ Installation $__________ Expedite $_____
CIF Racks: $__________ Installation $__________
CIF Power: $__________ Installation $__________
Other $__________ Installation $__________
TOTAL: $__________ TOTAL OF NON RECURRING CHARGES: $_____
Notwithstanding anything in the Master Service Agreement to the contrary, (1) a
security interest in this Agreement may be granted by Supplier to a Lender (2)
Supplier may from time to time assign all its rights and obligations hereunder
with respect any Circuits to any Affiliate. Upon such assignment herein this
Agreement shall be deemed to be multiple agreements, each upon the terms and
conditions set forth herein by and between Customer and such affiliate with
respect to such circuit between Supplier and Customer with respect to the
circuit not so assigned.
IN WITNESS WHEREOF, the parties have executed this PURCHASE ORDER on the
_____day of_____ 19______
------------------------------------ ---------------------------------------
SUPPLIER APPROVAL/TITLE CUSTOMER AUTHORIZED REPRESENTATIVE/
(Service Provider) TITLE (CUSTOMER)
PLEASE FAX THIS DOCUMENT TO CUSTOMER SERVICE FAX # (000) 000-0000
FOR OFFICE USE ONLY VERSION 3.0 10/2/97
PRIVATE LINE EXHIBIT - PAGE 1
9
EXHIBIT B - PRIVATE LINE SERVICE ANCILLARY PRICING
NON-RECURRING CHARGES DS-0 DS-1 DS-3
--------------------- ---- ---- ----
New Order Installation [***] [***] [***]
Order Change [***] [***]
Order Cancellation (prior to activation) [***] [***] [***]
ASR (new or disconnect) Special Access [***] [***]
ASR Supplement [***] [***]
Order Expedite [***] [***] [***]
Reconfiguration [***] [***] [***]
DACS Charge (switching only) [***]
DACS Port Charge (Xxxx access to DACS) [***]
DS-1 DACS Port [***]
OTHER CHARGES MONTHLY RECURRING NON-RECURRING
------------- ----------------- -------------
Cross-Connect Charge (Other Interexchange carrier, local
access or customer interconnect/collocation facility to
Supplier local access or bypass facility within the same
Supplier POP):
DS-1 [***] [***]
DS-3 [***] [***]
OC-3* [***] [***]
OC-12* [***] [***]
OC-48* [***] [***]
Interconnect Charge (Supplier POP to Supplier POP in the
same city or local area using Supplier owned or leased
transmission systems, with no Supplier long haul attached at
either Supplier POP):
DS-1 [***] [***]
DS-3 [***] [***]
OC-3* [***] [***]
OC-12* [***] [***]
OC-48* [***] [***]
M1/3 - 1 Year Term [***]
2 Year Term [***]
3 Year Term [***]
Echo Canceller (per circuit end) [***] [***]
Second End Loop (Ex: for ADPCM) [***] [***]
Rack Space I.C.B - Subject to Availability
Shelf Space [***]/ea/mo. I.C.B.
DC Power [***]/amp/mo (5 amp minimum; 5 amp increments)
NOTES:
1. ALL CHARGES INCURRED BY SUPPLIER ON CUSTOMER'S BEHALF FROM ANY LOCAL
EXCHANGE CARRIER, COMPETITIVE ACCESS PROVIDER OR COMPETITIVE LOCAL
EXCHANGE CARRIER WILL BE DIRECTLY PASSED ON TO THE CUSTOMER.
2. SERVICES NOT DESCRIBED ABOVE WILL BE CONSIDERED SPECIAL HANDLING AND
CHARGES WILL BE ASSESSED ON AN INDIVIDUAL CASE BASIS (ICB).
3. ALL OF THE ABOVE CHARGES ARE SUBJECT TO CHANGE WITH A 30-DAY NOTICE.
4. ALL PRIVATE LINE ANCILLARY SERVICE CHARGES TO CITIES NOT LISTED ON
EXHIBIT C WILL BE PRICED ON AN INDIVIDUAL CASE BASIS AND WILL BE SUBJECT
TO THE TERMS AND CHARGES OF THE UNDERLYING CARRIER.
*All OC product cross-connects and interconnects will be provided based upon
availability. OC interconnects shall have a minimum term of 12 months.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
PRIVATE LINE EXHIBIT - PAGE 2
10
EXHIBIT C - ON-NET CITY LISTING
LOCATION LATA ADDRESS/(NPA)NXX
-------- ---- ----------------
Abilene, TX 550 0000 X. Xxxxx, #000,
(915)675
Akron, OH 325 0 Xxxxxxx Xxxxx, Xxxxx 0000,
Xxxx & Bowery, (216)535
Albuquerque, NM 664 000 Xxxxx Xxxx., N.W.,
13th Floor, (505)247
Amarillo, TX 546 Amarillo Petroleum Bldg.,
000 X. 0xx, Xxxxx 607/608
(806)373
Ann Arbor, MI 346 0000 Xxxxxxxx Xx, (313)994
Austin, TX 558 000 Xxxxxxxx Xxxxxx Xxxx
(512)389
Bakersfield, CA 734 0000 Xxxxxxx Xxx., Xxxxx 000
(805)327
Baltimore, MD 238 1220 X. Xxxxxx (301)752
Battle Creek, MI 348 000 Xxxx Xxxxxx (616)962
Bay City, MI 344 100 X. Xxxx (517)667
Chicago, IL 000 Xxxxxxxxxx Xxxx., Xxxxx 0000
000 X. Xxxxxxxx, (312)861
Cincinnati, OH 922 2300 Xxxxx Tower, #4701
000 Xxxx Xxxxxx, (000)000
Xxxxxxxxx, XX 000 X.X. Xxxxx Xxxx., Xxxxx 0000
0000 Xxxxxx Xxx., (216)771
Columbus, OH 000 Xxxxxx Xxxx., Xxxxx 0X
000 X. Xxxxx St., (614)469
Colorado Springs, CO 000 000 X. Xxxxx, # 000, (719)471
Corpus Christi, TX 564 000 X. Xxxxxxxxxx, Xxxxx 000
(512)882
Dallas, TX 552 0000 Xxxxxxx Xxxxxx, (214)969
Dallas, TX 000 Xxxxx xx xxx Xxxxxxxx, #000
2323 Bryan, (214)954
Dayton, OH 000 0 Xxx'x Xxxx Xxxx., Xxx. 0000
000 X. Xxxxxx, (000)000
Xxxxxx, XX 000 Xxxx Xxxxxxxx, 000 00xx Xxxxxx,
Xxxxx 000, (303)572
Detroit, MI 340 0000 Xxxxxx Xxxxxx, (313)259
Detroit, MI 340 Book Bldg., Suite 2609
1249 Washington (313)961
El Paso, TX 000 Xx Xxxx Xxxx Xxxx Xxxx.
000 X. Xxxx, #0000, (915)533
Flint, MI 340 2001 S. Grand Traverse
(313)767
Fresno Term, CA 728 Guarantee Savings, #1201
B1171 Xxxxxx Mall, (209)268
Fresno, CA 728 4605 E. Vine, (209)486
Ft. Worth, TX 000 XX Xxxxxxxx Xxxx.,
000 Xxxxxxx,
Xxxxx 0000, (817)870
Grand Rapids, MI 348 000 Xxxxxx, X.X., (616)235
Harlingen, TX 568 513 X. Xxxxxxx, Xxxx Bldg.,
(210)425
Houston, TX 560 000 X. Xxxx Xxxxxx, (713)224
Indianapolis, IN 336 Merchants Bank Bldg.,
11 S. Meridian, #1798/1799
(317)637
Jackson, MI 346 000 X. Xxxxx Xxxxxx,
(517)783
Kalamazoo, MI 348 000 Xxxx Xxxxxx, (616)385
Kansas City, MO 524 Bank of Kansas City, # 1704
0000 Xxxxx Xxx., (816)283
Lansing, MI 000
Xxx Xxxxx, XX 821 000 X. Xxx Xxxxx
Xxxxx 000, (702)388
Los Angeles, CA 730 One Wilshire, 000 X. Xxxxx
Xxxxx 0000, (213)689
Lubbock, TX 544 1220 Broadway, Ste. 1901,
(806)762
McAllen, TX 568 000 X. 00xx Xxxxxx, Xxx. 000,
(210)687
Midland, MI 344 1000 Jefferson, (517)631
Midland, TX 542 KMID-TV Studio, XxXxxxx
Blvd @ Air Terminal(915)561
New York, NY 132 00 Xxxxxx Xx., Xxx. 000
(212)285
Xxxxxx, XX 000 000 Xxxxx Xxxxxx, 0xx Xxxxx
(201)824
Oklahoma City, OK 000 Xxxxxxx Xxxxx, Xxxxx 0000,
000 X. Xxxxxxxx, (405)232
Philadelphia, PA 228 0000 Xxxxxx Xx., 0xx Xxxxx
(000)000
Xxxxxxx, XX 666 0000 X. Xxxxxxx, Xxxxx 0000
Xxxxxx-Xxxxx Twr, (602)279
Pittsburgh, PA 000 Xxxxxx Xxxx., 000 Xxxxxxxxxx
Xxxxx 0000, (412)281
Pontiac, MI 344 324 S. Saginaw, (313)338
Royal Oak, MI 0000 X. 00 Xxxx Xxxx
(313)435
Saginaw, MI 344 315 Xxxxxxxx, (517)771
San Angelo, TX 961 00 X. Xxxxxx, 00xx Xxxxx
(915)653
San Antonio, TX 566 000 X. Xxxxx Xxxx, (000)000
Xxx Xxxxxxxxx, XX 000 Xxxxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000X
425 Market St., (415)543
Southbend, IN 332 000 Xxxx Xxxxxxxxxx Xx.
19th Floor, (219)233
St. Louis, MO 000 000 Xxxxxx, Xxxxx 000
(314)231
Sunnyvale, CA 722 111 Uranium, (408)739
Toledo, OH 326 000 Xxxxxxx Xxx., Xxxxx 0000
(419)242
Tucson, AZ 000 Xxxxxxx Xxxx Xxxx., #0000
33 X. Xxxxx, (520)792
Tulsa, OK 538 0000 X. 00xx Xxxx Xxx.
(000)000
Xxxx, XX 556 000 X. 00xx Xxxxxx, (817)750
Washington, D.C. 236 0000 X Xxxxxx, X.X., #000
(202)833
PRIVATE LINE EXHIBIT - PAGE 3
11
EXHIBIT D - PRIVATE LINE PRICING
SERVICE TYPE MILES RATE/DS-0 V&H MILE
RATES FOR ONE YEAR TERM
DS-0 I.C.B.
DS-1 1-200 [***]
201-500 [***]
501-1,000 [***]
1,001-2,000 [***]
2,001+ [***]
DS-3 1-200 [***]
201-500 [***]
501-1,000 [***]
1,001-2,000 [***]
2,001+ [***]
SERVICE TYPE MILES RATE/DS-0 V&H MILE
RATES FOR THREE YEAR TERM
DS-0 I.C.B.
DS-1 1-200 [***]
201-500 [***]
501-1,000 [***]
1,001-2,000 [***]
2,001+ [***]
DS-3 1-200 [***]
201-500 [***]
501-1,000 [***]
1,001-2,000 [***]
2,001+ [***]
Minimum Circuit Charges: DS-0 [***]
DS-1 [***]
DS-3 [***]
NOTES:
1. ALL PRIVATE LINE SERVICE TO CITIES NOT LISTED ON EXHIBIT C WILL BE
PRICED ON AN INDIVIDUAL CASE BASIS AND WILL BE SUBJECT TO THE TERMS OF
THE UNDERLYING CARRIER.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Private Line Exhibit - Page 4
12
SECTION 2. UNIFORM SALES & USE TAX CERTIFICATION FORM
Issued to: IXC, 5000 Plaza on the Lake, Xxxxx 000, Xxxxxx, Xxxxx 00000
Certify that Universal Access, Inc. is a registered and/or identified with the
below listed cities and/or states within which your firm would deliver purchases
to us and that any such purchases are for wholesale, resale, ingredients or
components of a new product to be resold, leased, rented or used in the normal
course of our business. We are in the business of wholesaling, retailing,
manufacturing, leasing, renting or providing non-taxable services or products.
Check applicable box: (___) Single Purchase Certificate (X) Blanket Certificate
Is engaged as a registered (where applicable): (___) Wholesaler (___) Lessor (X)
Retailer (___) Manufacturer (___) Exempt Organization Use (___)
Other (Specify)_________________
Product or service rendered by Customer: Telecommunication Services
STATE REGISTRATION OR I.D. NO. STATE REGISTRATION OR I.D. NO.
-----------------------------------------------------------------------------------------
IL 00-0000000 __________ _______________
-- ----------
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I further certify that if any property so purchased tax free is used or consumed
by the firm as to make it subject to a sales or use tax we will pay the tax due
direct to the proper taxing authority when state law so provides or inform the
seller for added tax billing. This certificate shall be part of each order which
we may hereafter give to you, unless otherwise specified, and shall be valid
until cancelled by us in writing or revoked by the city or state.
Exemption Claimed: (___) Resale (___) Federal Government (___) Exempt
Organization (___) State & Local Government (___) Direct Payment Permit (___)
Other (Specify) ??
I swear and affirm that the information on this form is true and correct as to
every material matter.
/s/ XXXXXXX X. XXXXX President 10.28.97.
----------------------------------------------------------------------
Signature Title Date
13
TAXES ON TELECOMMUNICATIONS SERVICES
Please check one of the following:
X Telecommunications services purchased from Supplier are for
resale purposes in the normal course of our business (or are
subject to other tax exemptions). These services are exempt from
federal, state and local taxes.
IF CHECKED, COMPLETE SECTION 1 & SECTION 2 BELOW FOR THE
APPLICABLE STATES WHERE SERVICE IS PROVIDED.
_____ Telecommunications services purchased from Supplier are not for
resale purposes, but are purchased for our own use. These
services are not subject to other exemptions.
IF CHECKED, SIGN HERE:______________________________
DATE:_______________
SECTION 1. CERTIFICATE OF EXEMPTION FROM FEDERAL EXCISE TAXES ON COMMUNICATIONS
SERVICES AND FACILITIES
--------------------------------------------------------------------------------
The undersigned hereby certifies that the service furnished by Supplier is
exempt from the Federal Excise Tax on Communications and Facilities imposed by
Internal Revenue Code (IRC) Section 4251 because the undersigned is exempt under
IRC Section 4253 for such reason as marked below (check one). The undersigned
agrees to notify Supplier in writing when the claimed status no longer applies.
_____ A nonprofit hospital referred to in IRC Section 170(b)(1)(A)(ii) which
is exempt from income tax under Section 501(a).
_____ A nonprofit educational organization described in IRC Section
(170)(b)(1)(A)(ii) which is exempt from income tax under Section 501(a).
_____ A School which is operated as an activity of an organization described
in IRC Section 501 (c)(3) which is exempt from income tax under Section
505(a), and operates as described in IRC Section 4253(j).
_____ The U.S. government, government of a State, political subdivision of a
state of the District of Columbia.
_____ The American Red Cross or an international organization described in
Internal Revenue Code Sections 7701(a)(18) and 4253(c).
_____ A news service company of the type referred to in Internal Revenue Code
Section 4253(b).
_____ Diplomatic, consular or other officers of foreign governments
temporarily residing in the United States who are nationals of the
foreign country on a diplomatic mission.
_____ The service will be used exclusively in the rendering of a
communications services upon which tax is imposed by IRC Section 4251.
It is understood that no tax will be collected by Supplier on charges
for said service and that it will be the responsibility of the
undersigned to collect such tax as may be due from its customers.
_____ The service, which is defined in Section 4252(b)(2), is for use by a
common carrier, telephone or telegraph company, or radio broadcasting
station or network in the conduct of its business as such.
FOR THIS CERTIFICATE TO BE VALID YOU MUST CHECK ONE OF THE ABOVE BOXES, SIGN AND
DATE THE CERTIFICATE AND PROVIDE AN EFFECTIVE DATE. ANY MODIFICATIONS TO THE
ABOVE WILL RENDER THE CERTIFICATE NULL AND VOID.
THE EXEMPT STATUS OF THE UNDERSIGNED IS EFFECTIVE AS OF _____________.
Customer: Universal Access, Inc. FEDERAL TAX I.D.00-0000000
I swear under penalty of fines, imprisonment, or both, together with cost of
prosecution that the statement contained herein are true to the best of my
knowledge.
/s/ XXXXXXX X. XXXXX President 10.27.97
----------------------------------------------------------------------
Signature Title Date
