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EXHIBIT 10.22
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
LICENSE AGREEMENT
This Agreement is made and entered into on this 29th day of September,
1995, by and between Xxxxxxxxxx Cablevision and Entertainment, Inc., an Alabama
corporation (hereinafter referred to as "MCE"), and American Communication
Services of Montgomery, Inc., a Maryland Corporation (hereinafter referred to as
"ACSI").
WHEREAS, ACSI desires fiber optic capacity for its business
purposes; and
WHEREAS, MCE is willing to construct or lease fiber optic cable, at the
expense of ACSI, and in return, to allow ACSI to use certain of the fibers on
such cable;
NOW, THEREFORE, in consideration of the premises and the agreements of the
parties, MCE and ACSI agree as follows:
Section 1. Construction of Fiber Optic Cable
Subject to securing all requisite government and regulatory approvals, and
in consideration of the payments and other agreements of ACSI contained herein,
MCE agrees to construct (or cause to be constructed) and to maintain a fiber
optic cable in or around the City of Montgomery, Alabama (the "Fiber System")
upon electric distribution, CATV distribution transmission lines, and/or other
rights-of-way selected by MCE. The Fiber System shall consist of not less than
[_______________] fibers, except as agreed to by the parties pursuant to
Section 30. Each of the fibers shall be single mode, dual window,
non-dispersion shifted.
For purposes of this Agreement, the Fiber System shall not consist of any
fiber or cable on the ACSI side of any demarcation point (i.e. splice point in
an ACSI manhole) with MCE.
All construction shall be performed pursuant to MCE's specifications. MCE
shall provide the specifications for each phase of construction to ACSI. The
specifications for each phase may be provided at once, or at MCE's option, may
be divided and provided in multiple parts. Unless ACSI objects to MCE in writing
to specifications within ten (10) days of receipt of those specifications, such
specifications shall be deemed to have been agreed upon.
Section 2. Route Location and Phases of Construction
MCE shall construct the Fiber System over a route more fully described in
Exhibit A, attached hereto and made a part hereof (the "Route"). The Fiber
System
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will be constructed in phases as more fully described in Exhibit A, and will be
completed by the "Not Later Than" ("NLT") dates specified in Exhibit B. Failure
to complete construction by the agreed upon NLT dates will result in a penalty
being accessed against MCE of [____] per day for each day beyond the NLT dates
specified in Exhibit B (other than any delays relating to receipt of permits or
completion of "make-ready" work to be done by others necessary for MCE to
commence and pursue the construction later than 90 days from MCE's application
or request to commence, respectively).
Section 3. License; Grant of Security Interest and Collateral Assignment to
Lender
So long as ACSI performs its payment obligations and all of its other
obligations under this Agreement, ACSI shall have the sole and exclusive right
to use a total of [________________] of the fibers constituting the Fiber
System (which [__] fibers are referred to herein as the "ACSI Fiber"). MCE
shall have the sole and exclusive right to use the remaining [________________]
fibers constituting the Fiber System subject to the provisions of Section 10
(which [__] fibers are referred to herein as the "MCE Fiber").
MCE shall designate the [________________] fibers that are to be ACSI
Fiber. MCE may substitute fibers of equal or better capacity and quality at any
time, so long as such substitution does not interfere with ACSI's service to
its customers.
In the event that an Event of Default of ACSI occurs pursuant to Section
14 hereof which has not been cured pursuant to Section 15 hereof, MCE shall have
the sole and exclusive right to use all ACSI Fiber, without incurring any
liability, responsibility or obligations to ACSI, ACSI's customers, or any user
of ACSI Fiber, provided, however, that it is currently contemplated that ACSI
will enter into a secured financing arrangement (the "Secured Financing
Arrangement") with a major equipment supplier financier (the "Lender"), and that
the Lender will be granted a security interest in substantially all the assets
of ACSI, including, without limitation, ACSI's rights under this Agreement to
which MCE hereby consents. Further, with reference to Section 21 hereunder, MCE
hereby consents to a collateral assignment of ACSI's rights hereunder to the
Lender in connection with the Secured Financing Arrangement. MCE acknowledges
and agrees that in the event that Lender exercises its remedies under the
Secured Financing Arrangement, Lender may foreclose on its security interest in
this Agreement or arrange for a third party through public or private sale or
through agreement with ACSI to acquire ACSI's assets. Notwithstanding any
provision of this Agreement to the contrary, such foreclosure by the Lender or
acquisition of assets by such third party shall not constitute a breach of this
Agreement and upon such foreclosure or acquisition, the Lender or such third
party shall succeed to all rights and remedies of ACSI under this Agreement.
Neither the Lender nor such third party shall be liable for any act, omission,
default, or obligation (other than payments required hereunder) that arose or
occurred under this
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Agreement prior to the date on which the Lender or such third party succeeded to
the rights of ACSI under this Agreement. MCE agrees that, if the Lender does not
deem to be sufficient MCE's consent hereby to the grant of such security
interest to the Lender and the collateral assignment of ACSI's rights under this
Agreement to the Lender, at ACSI's expense, MCE will execute all additional
documents as may reasonably be required by Lender to evidence MCE's consent to
such security interest and collateral assignment. MCE further agrees that, upon
an Event of Default of ACSI, the Lender shall have the opportunity to cure such
Event of Default within the time periods specified in Section 15 hereof; in this
event, or in the event of a foreclosure or acquisition by the Lender or a third
party pursuant to the Secured Financing Arrangement, pursuant to which the
Lender or a third party succeeds to ACSI's rights under this Agreement, so long
as no Event of Default of ACSI has occurred for which the applicable cure period
has passed, the Lender shall have the right to use the ACSI Fiber. At the
termination of this Agreement for any reason, ACSI's (and the Lender's) rights
to ACSI Fiber shall end, terminate and forever cease.
Section 4. Term of Agreement
This Agreement shall be effective as of the date hereof and shall continue
in effect for a term of fifteen (15) years, with ACSI having the option to
extend this Agreement for two (2) five (5) year renewal terms. At the end of
such term, including any renewal terms, all ownership rights of ACSI and all
rights of ACSI to utilize the Fiber System, including the ACSI Fiber, shall end,
terminate, and forever cease.
ACSI may exercise its option for a renewal term by providing notice of its
intent to do so in writing to MCE at least six (6) months prior to the last day
of the preceding term.
Section 5. Notification of Completion
MCE shall notify ACSI upon the completion of each phase of construction if
any, as set forth in Exhibit A hereto, and ACSI will accept the fiber in
accordance with acceptance and testing procedures mutually agreed to by the
parties. In the event of disagreement on the acceptance and testing procedures,
the Fiber System or any phase thereof will be deemed acceptable if it meets
generally accepted standards for similar fiber cable construction.
Section 6. Payments
ACSI agrees to reimburse MCE for [___] (except as set forth in Section 30)
of all reasonable actual costs and expenses incurred by MCE in constructing the
Fiber System. During construction of the system, MCE will periodically provide
to ACSI a listing of such costs and expenses.
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ACSI will reimburse the pro-rated share of these costs to MCE by first
reimbursing fifty percent of ACSI's portion of the estimated costs and expenses
shown on Exhibit B within ten (10) business days of the expected start date of
each phase referenced in Exhibit B. The remaining fifty percent will be
reimbursed by remitting one-half of the amount shown on each listing provided by
MCE during the construction within ten (10) business days of the date of each
such listing. Within ten (10) business days of the completion of construction,
ACSI shall reimburse MCE for any additional amounts due or shall receive any
refunds for overpayments, whichever is applicable.
All costs and expenses which are not reimbursed when required hereunder
shall be assessed interest at a rate of one and one-half percent per month.
Upon commencement of construction of the Fiber System, ACSI agrees to pay
to MCE (in addition to the reimbursement of costs) a one-time fee of
[____________________] on each route to be constructed under this agreement as
partial compensation to MCE for the use of rights-of-way by the ACSI Fiber. At
the option of ACSI, this amount may be amortized over a five-year period at an
interest rate of twelve percent (12%). If ACSI selects this option, the first
annual payment will be due upon commencement of construction for each
respective phase, and subsequent annual payments will be due on each of the
first four annual anniversaries of the execution hereof.
ACSI will also be responsible for the payment, or reimbursement to MCE, of
all sales, use, franchise, business license, or other taxes or fees charged by
any governmental entity that arise out of the use of the ACSI Fiber.
ACSI shall have the right to review the relevant books and records of MCE
for the limited purpose of verifying the costs and expenses subject to
reimbursement hereunder. A request to perform such a review must be preceded by
five days written notice, and any information disclosed or revealed in such
review shall be kept confidential by ACSI, except such information as ACSI may
be required to disclose to the Lender in connection with the Secured Financing
Arrangement.
Section 7. Additional Fiber and Entrance Facilities
The ACSI Fiber shall also include entrance into any buildings within 2,500
feet of the fiber system, in which MCE has available building conduit(s). Fiber
to be constructed by ACSI to a mutually agreed point of demarcation.
As further consideration for the use of the ACSI Fiber, ACSI agrees to
provide to MCE, during the term of this Agreement and any renewal term:
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(a) sole and exclusive use of [___________] fibers which
meet MCE's performance standards on all fiber optic
cable routes and entrance facilities which ACSI
currently owns, leases, or otherwise has rights to use
in and around the Montgomery metropolitan area, which
fibers are described and shown in Exhibit C hereto.
MCE agrees that it will not use or lease this fiber to
a third party who proposes to provide local
competitive access services, as that term is defined
in Section 10.
(b) sole and exclusive use of and access to, and the right
to install fiber optic cables in, one (1) innerduct on
the conduit routes described and shown on Exhibit C
hereto. MCE agrees that it will not use this conduit
and any fiber optic cable installed in this conduit to
provide local competitive access services, as that
term is defined in Section 10. In addition, MCE
agrees not to lease or sell this fiber to any third
party who proposes to provide local competitive access
services, as that term is defined in Section 10.
(c) Most favored customer pricing (plus $1, per monthly invoice)
for like services and like quantities, or as agreed to by the
parties, on private line services which are purchased by MCE
or an affiliated ITC Holding Company entity from ACSI.
(d) ACSI will view MCE as most favored vendor, when
purchasing off-net, type II services, in areas wherein
MCE can provide mutually agreed upon competitive
pricing, responsive provisioning and high quality
products. ACSI will grant MCE a first right of
refusal on type II services, based on the above
quality and pricing points. First right of refusal
will consist of an affirmative response, accepting the
order within three (3) business days of placement. In
addition, MCE will incur a [____] penalty when missing a
customer concurred due date by more than five (5)
business days. After ten (10) business days, ACSI can
terminate the order and re-order with any other
provider.
Section 8. Assessment of Costs
ACSI agrees to pay its pro rata share (i.e. one-half) of any and all
variable and recurring costs (other than maintenance costs which are addressed
in Section 13) associated with the Fiber System during the term (including any
renewals) of this Agreement. Variable and recurring costs include, but are not
limited to, purchasing new rights-of-way, railroad crossing fees, easement fees,
inspection fees, encroachment fees, property taxes, franchise or special fee
assessments, or any
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other fees or assessments imposed by any governmental entity, and insurance.
They do not include the costs and expenses of constructing the Fiber System,
which are discussed in Section 6 of this Agreement. Furthermore, these costs
must relate to the Fiber System, and thus, they do not include costs incurred to
operate any electric system or CATV system owned or managed by MCE or its
affiliates.
An invoice for variable and recurring costs will be issued by MCE annually
or, at MCE's option, may be issued monthly. The invoice shall be paid within
thirty (30) days of receipt by ACSI. Any invoices issued hereunder shall
describe in sufficient detail the costs being charged and shall be subject to
review by ACSI. MCE will seek to minimize costs associated with the Fiber
System, consistent with good business practices. No administrative xxxx-up will
be added to any invoice. All invoices to ACSI which are not paid when due
hereunder shall be assessed interest at a rate of one and one-half percent per
month.
ACSI shall retain the right to object to any fee, assessment or tax
imposed by any governmental entity during the term of this Agreement, if MCE
chooses not to challenge said fee, assessment or tax. MCE agrees to cooperate
with ACSI if ACSI should exercise its rights hereunder. If ACSI chooses to
challenge or object to any governmental fee or tax hereunder, then all
penalties, attorneys fees and litigation costs associated therewith shall be
borne solely by ACSI as they are incurred. MCE agrees to share [___] of any
savings incurred on the MCE Fiber, during the immediate 12 months following any
favorable judgment initiated solely by ACSI.
Variable and recurring costs incurred exclusively to serve the business
needs of ACSI will be the sole responsibility of ACSI. These costs include, but
are not limited to, installing a new hand-hole and splice case for a new pickup
point and splicing in a new customer. ACSI will be invoiced for these charges as
they occur. Any invoice issued hereunder shall be payable within ten (10) days
of receipt by ACSI. All invoices to ACSI which are not paid when due hereunder
shall be assessed interest at a rate of one and one-half percent per month.
ACSI shall have the right to review the relevant books and records of MCE
for the limited purpose of verifying the costs referenced hereunder. A request
to perform such a review must be preceded by five days written notice, and any
information disclosed or revealed in such review shall be kept confidential by
ACSI, except such information as ACSI may be required to disclose to the Lender
in connection with the Secured Financing Arrangement.
Section 9. Equipment and Land
As provided elsewhere in this Agreement, ACSI shall pay for all costs
associated with use and operation of the ACSI Fiber including all equipment and
additional space or land required therefor.
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MCE shall provide for demarcation of fibers allocated to ACSI, MCE and
others. "Demarcation" means the point of meeting where the "hand-off" occurs
between the Fiber System and ACSI's system (whether secured from others or
owned). Generally, the demarcation point will be at the splice, unless the fiber
enters a building, in which case it will be at the distribution panel or other
point where the ACSI cable physically interconnects with the Fiber System. ACSI
shall provide the fiber to be spliced into the ACSI Fiber. The splice will be
prepared and maintained by MCE. Access to the splice enclosure, fiber optic
distribution frame, or fiber optic splice case shall be an exclusive right of
MCE or others at MCE's direction.
Section 10. Nonexclusive Agreement
MCE reserves for its own use and for the potential use of others the right
to MCE Fiber. MCE may initially or subsequently install additional cables along
the Route for its own use and for the potential use of others. None of these
cables or fibers shall become ACSI Fiber or otherwise be provided for ACSI's use
hereunder, and ACSI shall bear no costs (inclusive of installation and labor)
associated with these cables.
MCE agrees that for a period extending until September 1, 1996, that it
will not lease any of the MCE Fiber or optical/electronic transmission capacity,
to any third party that proposes to provide local competitive access services
(which term includes any interlata or intralata, special or switched access,
private line or local exchange services, but does not include, without
limitation, video, cable television, Personal Communications Services, or
cellular) through use of such MCE Fiber or capacity on terms more favorable than
those offered to ACSI. In addition, if MCE is considering entering any such
lease prior to September 1, 1996, [__________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_______.]
(a) MCE may use MCE Fiber (as described in Section 3,
paragraph 1) or ACSI provided innerduct for the purpose
of providing any service, capacity or facilities to its
own customers, affiliates, or lessees without
limitation, subject to the provisions of subsections (b)
and (c) of this Section 10 in the case of local
competitive access services (as defined above).
(b) To the extent (if any) that MCE uses MCE Fiber (as
described in Section 3, paragraph 1) or ACSI provided
innerduct to provide originating and/or terminating long
distance traffic to its residential customers, dedicated
access from MCE's POP to any interexchange carriers
other than DeltaCom will be carried over ACSI Fiber on
the joint Fiber System.
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(c) With respect to competitive access services consisting
of (i) local telephone services to MCE's business
customers in or around the City of Montgomery, Alabama
or (ii) originating and/or terminating long distance
traffic between such customers and any interexchange
carriers, (x) if such services or traffic can be carried
from the originating end to the terminating end entirely
on ACSI-owned fiber optic cable facilities (including
but not limited to ACSI Fiber), such competitive access
services must be purchased from ACSI and ACSI must
provide the same on terms and conditions which are in
accordance with paragraph 7(c) of this Agreement and are
otherwise generally competitive, or (y) if such services
or traffic cannot be carried from the originating end to
the terminating end entirely on ACSI-owned fiber optic
cable facilities (including but not limited to ACSI
Fiber), MCE may carry such services or traffic directly
or through another entity over the area where it cannot
be carried over ACSI-owned fiber optic cable facilities
(including but not limited to ACSI Fiber) and to a
suitable location to hand off the traffic to ACSI, and
the remaining portion of such competitive access
services must be purchased from ACSI and ACSI must
provide the same on terms and conditions which are in
accordance with paragraph 7(c) of this Agreement and are
otherwise generally competitive.
Section 11. Royalty Payment
As consideration for the requirements of Section 10, ACSI shall pay to MCE
a monthly royalty payment equal to [_________________] of ACSI's monthly Booked
Net Revenue After Taxes, which is defined as total revenue, less operating
expenses, interest expenses, taxes, and depreciation, all calculated in
accordance with generally accepted accounting principles. This payment will be
due to MCE, within thirty (30) calendar days of the end of each month, so long
as the amount is greater than zero and will continue throughout the term of
this agreement and shall continue for any renewals thereafter. This royalty
will be calculated on the basis of revenues generated by ACSI, its affiliates
(not including the parent company), or partners from usage on or of the Fiber
System. In no case will this royalty be less than the minimum amount specified
in Exhibit D [___________________________________] for years 1 through 10 based
upon ACSI's 4/3/95 Montgomery Business Plan Booked Net income projection), and
for Year 11, [_________________________________], and for every year
thereafter, [_________________________________] increased by changes in the
Consumer Price Index occurring since the beginning of Year 11. As it pertains
to the payment described above, MCE will have the right to audit ACSI's
invoices and financial statements on a limited basis, for the express purposes
only, to ensure
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accuracy of payments rendered to MCE by ACSI. This right will be quarterly, on
five (5) days written notice to ACSI.
Section 12. Availability
MCE will endeavor to provide uninterrupted availability of the Fiber
System and will make reasonable efforts to restore fiber optic connections as
soon as possible in the event of a failure. The parties acknowledge that
restoration times can vary significantly depending on the nature of the cause of
the interruption. ACSI agrees to provide MCE with any information or records
with respect to operations or operating characteristics of ACSI's system that
may be needed or useful to MCE in maintaining, repairing and/or replacing all or
part of the Fiber System. It is the responsibility of ACSI to possess the
equipment and alternative fiber optic cable route necessary to automatically
reroute traffic in the event of a loss of use of the ACSI Fiber.
Section 13. Maintenance and Maintenance Fees.
All maintenance of the Fiber System shall be performed solely by MCE or by
others at MCE's direction. MCE agrees to develop maintenance procedures with a
least-intrusive overall objective. Where practical, maintenance and construction
activities affecting system performance will be conducted between the hours of
midnight and 6 a.m., with five (5) days advance written notice. MCE agrees to
provide to ACSI, upon request, its maintenance procedures. ACSI may, at its
discretion, provide input as to the maintenance procedures.
MCE shall provide necessary routine maintenance for the Fiber System, such
as routine tower structure, right-of-way inspection and right-of-way clearing.
During the first ten (10) years of this agreement, ACSI shall pay to MCE an
annual fee for routine maintenance equal to [_________________] of the
pro-rated costs and expenses of constructing the Fiber System; years eleven
(11) through fifteen (15) shall be calculated at [__________________________].
The first annual maintenance payment shall be due within ten (10) business days
of the Start Date shown on Exhibit B and each annual payment thereafter shall
be due on the anniversary date of this Agreement. Annual maintenance payments
shall be calculated using the estimated costs and expenses set forth in Exhibit
B until the Fiber System is constructed, at which time such payments shall be
based upon the actual costs and expenses.
Upon any renewal term, annual maintenance shall be negotiated and mutually
agreed upon.
Routine right-of-way clearing is performed approximately every five (5)
years. Any requests for more frequent or more extensive right-of-way clearing
shall be provided by MCE at the sole cost and expense of ACSI.
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MCE shall also restore the Fiber System in the event of a service outage
or other events requiring repairs. MCE will respond to any outage within two (2)
hours or less after notice of the outage has been given to the designated MCE
contact and will use its best efforts to resolve the problem as quickly
thereafter as is reasonably possible. The costs associated with such restoration
shall not be treated as routine maintenance and ACSI shall be responsible for
its pro rata share of material, labor and overhead costs associated with the
necessary repairs. If MCE fails to respond within two (2) hours after notice of
the outage has been given to the designated MCE contact, a penalty will be
incurred of [___________________] thereafter and will be due ACSI. Both MCE and
ACSI will provide the other with written notice designating contacts for
purposes of this Agreement and this Section in particular.
ACSI shall have no responsibility for costs associated with replacement
and restoration of the Fiber System as a result of major repairs to the lines
arising out of a decision to reroute the structure and/or lines for the
convenience of MCE.
In the event of a Fiber System move for public convenience or necessity,
as in the case of a road widening, or to comply with an order, law or other
requirement of a government body, ACSI shall be responsible for its pro rata
share of the cost to move the Fiber System.
Section 14. Events of Default
Events of default shall include:
(a) If a payment is not made when due, MCE shall provide written
notice to ACSI of such nonpayment, and if payment is not made
within ten (10) business days or more after receipt of such
notice, an Event of Default shall be deemed to have occurred
(however, MCE shall be required to provide only two notices of
nonpayment every twelve months);
(b) Default in the performance of any other material
liability, obligation, representation or covenant of
ACSI or MCE;
(c) The admission by ACSI in writing of its inability to pay its
debts generally when due, or the making of any general
assignment for the benefit of creditors by ACSI;
(d) The institution of bankruptcy, reorganization, liquidation or
receivership proceedings by or against ACSI which is not
dismissed within 60 days thereafter; and
(e) An involuntary transfer of ACSI's interest by
operation of law.
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Section 15. Rights Upon Default
Upon the occurrence of any of the Events of Default listed in Section
14(b), the non-defaulting party shall give notice of such violation or default,
and if the defaulting party does not cure that default or violation within a
thirty (30) calendar day period the non-defaulting party may in its discretion
do one or more of the following:
(a) Proceed by appropriate court action or actions at law or in
equity or in bankruptcy to enforce performance by the
defaulting party of the covenant and terms of this Agreement
and/or to recover damages for the breach thereof;
(b) Invoke and exercise any other remedy or remedies
available at law or in equity;
(c) Cancel this Agreement; and
(d) In the event of an ACSI default, MCE may give written
notice to ACSI of the present value of the entire
amount of payments due to MCE under this Agreement and
an estimate of all other amounts remaining to be paid
over the balance of the term hereof, computed from the
date of ACSI's default. All of these amounts shall
become immediately due and payable and shall be
accelerated.
The remedies in the Event of Default, as hereinabove set forth, shall not
be deemed to be exclusive, but shall be cumulative and shall be in addition to
all other remedies existing in law, in equity or in bankruptcy;
The defaulting party shall be liable for all costs and expenses, including
reasonable legal fees and disbursements, incurred by reason of any Event of
Default or the exercise by the other party or its assignee of any of its
remedies hereunder, provided that such other party prevails in any such action.
Section 16. Reports and Certificates
On written request, during the term of this Agreement, ACSI agrees to
furnish to MCE and/or its assignee within one hundred twenty (120) days after
the close of its fiscal year, an annual report of its parent company consisting
of (1) its consolidated financial statements including a balance sheet as of the
end of such fiscal year, and (ii) statements of income for the year then ended,
with all notes thereto, in each case certified as true and correct by the chief
financial officer of its parent company; provided that if its parent company
shall have independent certified
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accountants prepare such financial statements, ACSI shall furnish such
financials to MCE when available.
All non-public information regarding ACSI or its affiliates received by
MCE, its successors, assigns or affiliates under this Section shall be held
confidential.
Section 17. Representations and Warranties
By the execution and delivery of this Agreement, ACSI shall be deemed to
have made the following representations and warranties to MCE with respect to
this Agreement:
(a) ACSI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland and is,
or will become, duly qualified to do business in each
jurisdiction where such qualification is necessary; and has
the power and authority to enter into and perform its
obligations under this Agreement;
(b) ACSI is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof and thereof;
(c) There are no actions, suits or proceedings, whether or
not purportedly on behalf of ACSI, pending or (to the
knowledge of ASCI) threatened against or affecting
ACSI or any property rights of ACSI at law or in
equity, or before any commission or other
administrative agency, that, if determined adversely
to ACSI would materially and adversely affect the
ability of ACSI to perform its obligations under this
Agreement. ACSI is not in default with respect to any
order or decree of any court or governmental
commission, agency or instrumentality which would
materially affect the ability of ACSI to perform its
obligations;
(d) The execution, delivery and performance of this
Agreement does not conflict with, or result in a breach
of, the terms, conditions or provisions of: (i) ACSI's
articles of incorporation; or (ii) any bond, debenture,
note, mortgage, indenture, agreement or other
instrument to which ACSI is a party or by which ACSI or
its property may be bound, or constitute (with due
notice or lapse of time or both) a default thereunder,
provided, that MCE acknowledges that it is currently
contemplated that ACSI will enter into the Secured
Financing Arrangement with the Lender; ACSI has
obtained all necessary consents to the execution,
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delivery and performance of this Agreement and all debentures,
notes, mortgages, indentures, agreements and other instruments
to which ACSI is a party or by which it or its property may be
bound;
(e) Any and all authorizations or approvals from any
governmental or public body or authority of the United
States of America, or of any of the States thereof, the
District of Columbia, the City of Montgomery, Alabama,
or other local authority, necessary in connection with
the execution, delivery and performance of this
Agreement have been or will be obtained prior to making
the Fiber System operational, except for such approvals
and authorizations as have been obtained and are in
effect as of the date thereof and as to those, the same
will be maintained in effect throughout the term of
this Agreement.
By execution and delivery of this Agreement, MCE shall be deemed to have
made the following representations and warranties to ACSI with respect to this
agreement.
(a) MCE is a corporation duly formed and validly existing
under the laws of the State of Alabama and is qualified
to do business in each jurisdiction where such
qualification is necessary; and has access to certain
rights-of-way (owned by its parent companies, ITC
Holding Company, Inc. and CYBERNET Holding LLC, or
other ITC affiliates as may be the case) necessary to
perform under this agreement; and has the power and
authority to enter into and perform its obligations
under this Agreement;
(b) MCE is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof.
(c) There are no actions, suits or proceedings, whether or
not purportedly on behalf of MCE, pending or (to the
knowledge of MCE) threatened against or affecting MCE
or any property rights of MCE at law or in equity, or
before any commission or other administrative agency,
that, if determined adversely to MCE would materially
and adversely affect the ability of MCE to perform its
obligations under this Agreement, except as set forth
in Section 19. MCE is not in default with respect to
any order or decree of any court or governmental
commission, agency or instrumentality which would
materially affect the ability of MCE to perform its
obligations hereunder or thereunder, nor does any
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such order or decree exist that would materially and adversely
affect the ability of MCE to perform such obligations;
(d) The execution, delivery and performance of this
Agreement does not conflict with, or result in a
breach of, the terms, conditions or provisions of: (i)
MCE'S articles of incorporation; or (ii) any bond,
debenture, note, mortgage, indenture, agreement or
other instrument to which MCE is a party or by which
MCE or its property may be bound, or constitute (with
due notice or lapse of time or both) a default
thereunder.
Section 18. Rights-of-Way
Under its existing right-of-way agreements with private landowners and/or
holders of easements providing rights-of-way, MCE believes that it has the right
to use the rights-of-way as contemplated herein, but does not warrant that they
will be legally sufficient, without the consent of the landowners, for all
purposes contemplated hereunder. In the event that a landowner should object to
MCE's use of a right-of-way, MCE will promptly notify ACSI of the objection and
will use its best efforts to resolve the dispute. Unless MCE determines that
legal and/or regulatory considerations dictate a different characterization,
this Agreement shall be construed as constituting a license from MCE to ACSI for
use of the ACSI Fiber during the term of this Agreement. ACSI will be required
to obtain rights-of-way for the equipment which it intends to install outside of
the Route, including any cables required for service to its customers' premises.
ACSI will also be required to acquire whatever rights-of-way are necessary to
bury cable from the base of poles and towers to any other sites.
Section 19. Regulation
Under current law, the parties are unclear as to whether MCE needs the
approval of the Alabama Public Service Commission (the "PSC") in order to enter
into or perform its obligations under this Agreement. Nevertheless, MCE intends
to seek from the PSC the necessary authority or a determination that no such
authority is required. If it is determined that such authority is needed, MCE
reserves the right to assign this Agreement to another party who has or can
obtain the necessary authority. Such assignment will release MCE from any
liability or obligations to ACSI, but the assignee will be bound to the same
obligations and liabilities as MCE.
Nothing in this Agreement shall be construed as obligating MCE to do any
act, or prevent MCE from doing any act, that would make MCE subject to
regulation as a telephone company, communications carrier, or common carrier.
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Section 20. Ownership
MCE shall own [________________] strands of the fiber optic cable
comprising the Fiber System and any electronic equipment which MCE attaches to
the Fiber System. This does not include the conduit set forth on Exhibit C.
Subject to Section 4 hereof, for the term of this Agreement, ACSI shall own
[___________] strands of the fiber optic cable comprising the Fiber System and
any electronic equipment which ACSI attaches to the Fiber System.
Section 21. Assignment
Except as provided in Section 19, neither MCE nor ACSI shall make any
assignment of any of its rights or obligations to any third party under this
agreement without the consent of the other party, which consent shall not be
unreasonably withheld (consents shall not be deemed unreasonably withheld with
respect to a proposed assignment of this Agreement by a party to an entity where
the other party has a good faith belief that the transferee is unable to comply
with the terms and conditions of this Agreement), except that ACSI may, without
the written consent of MCE, collaterally assign its rights in this Agreement to
the Lender in connection with the Secured Financing Arrangement. Notwithstanding
the foregoing, neither party shall not be required to obtain the other party's
consent to contracts for services required under this Agreement or to assign its
rights (but not its obligations) under this Agreement to an affiliate.
Section 22. Limitation of Liability
MCE will not be liable for consequential damages or for any loss of use,
revenue, or profit suffered by ACSI or its assigns as a result of any act or
failure hereunder, including the unavailability or failure of capacity, MCE's
supply of or failure to supply power to the Fiber System or the ACSI Fiber, or
any damage to the ACSI Fiber or the Fiber System. MCE's total liability for any
claims or damage arising out of or connected with this Agreement shall not
exceed the amount of fees paid by ACSI to MCE prior to date of said claim or
damage.
Section 23. Indemnity
Subject to Section 22, each party, for itself, its successors and assigns,
agrees to defend, indemnify and save the other, its directors, officers,
employees, agents, successors and assigns, harmless from and against any and all
claims, demands, damages, actions or causes of action, together with any and all
losses, fines, penalties, costs or expenses (including attorney's fees) in
connection therewith or related thereto, asserted by any third party, including,
but not limited to, the general public, the other party's employees, customers,
contractors, subcontractors and/or agents, arising from or in any manner growing
out of or attributed to the indemnifying
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party's negligence or willful acts, including, but not limited to operations,
cable splicing, equipment, facilities, regenerator, regenerator(s) site(s), or
connection(s).
ACSI, for itself, its successors and assigns, agrees to defend, indemnify
and save MCE, its directors, officers, employees, agents, successors and
assigns, harmless from and against any and all claims, demands, damages,
actions, or causes of action, together with any and all losses, fines,
penalties, costs or expenses in connection therewith or related thereto,
asserted by any person or persons arising from or in any manner growing out of
unavailability or loss of capacity, whether or not caused by the fault or
negligence of ACSI.
Section 24. Force Majeure
In the event that MCE shall be prevented from or delayed in installing,
repairing or replacing the Fiber System because of causes beyond its control
such as, but not necessarily limited to, lightning, flood, fire, explosion,
storm, destruction of property, strike or other labor dispute or disturbance,
civil insurrection, national emergency, embargo, moratorium, any governmental
action or order of any court or administrative agency, major mechanical
breakdown, or failure of a unique supplier to supply necessary materials or
equipment on time, MCE shall be excused from timely performance.
Section 25. Confidentiality
MCE shall maintain the confidentiality of records and information received
by it under this Agreement regarding ACSI or its affiliates, except as necessary
to instruct or protect any third parties, including, but not necessarily limited
to, agents and contractors. ACSI shall maintain the confidentiality of records
and information received by it under this Agreement regarding MCE or its
affiliates, except as necessary to instruct or protect any third parties,
including, but not necessarily limited to, agents and contractors. The parties
hereby incorporate by reference the Non-Disclosure Agreement that they entered
into on August 17, 1995.
Section 26. Warranty
The parties acknowledge that MCE is not selling goods to ACSI, and
consequently, the warranties generally provided by the Uniform Commercial Code
will not be available to ACSI. The Fiber System shall be constructed to meet
specifications as set forth in this Agreement. However, BECAUSE MCE IS NOT THE
MANUFACTURER OR VENDOR OF ANY OF THE PROPERTY THAT WILL BE UTILIZED, INCLUDING,
BUT NOT LIMITED TO, FIBER OPTIC CABLE AND ALL ASSOCIATED EQUIPMENT, NOR A DEALER
IN SUCH PROPERTY, MCE HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION,
WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN,
CONDITION,
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DURABILITY, USEFULNESS, SUITABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR
PURPOSE OR MERCHANTABILITY OF THE FIBER CAPACITY, THE FIBER SYSTEM OR THE ACSI
FIBER. MCE SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS THEREIN OR
ANY DAMAGES RESULTING THEREFROM.
MCE shall be responsible, at no extra cost to ACSI, for enforcing
manufacturer's warranties providing for any and all replacements required as a
result of manufacturing failure, provided that ACSI shall be responsible for its
pro rata labor costs and reasonable overhead of the installation of the
replacement cable, to the extent MCE (rather than the manufacturer) is
responsible for such changes.
Section 27. Notices
All notices and other communications provided for herein shall be validly
given if in writing and delivered personally, via overnight express mail, via
certified mail, or via regular mail, addressed as below to whichever is
appropriate:
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If to MCE:
Xx. Xxxxxxxx X. Xxxxxxxxx
CYBERNET HOLDING, LLC
XX Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Mr. Cam X. Xxxxxx
Chairman & CEO
ITC HOLDING COMPANY
XX Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If to ACSI:
General Counsel
ACSI
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
Chief Financial Officer
ACSI
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
copy to:
Xx. Xxxxxx Xxxx
ACSI
000 Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xx. Xxxxx X. Xxxx
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Section 28. Further Assurances
ACSI, at its own cost, expense and liability, will cause to be promptly
and duly taken, executed, acknowledged and delivered all such further
assurances, acts and documents as MCE or its permitted assigns may from time to
time reasonably
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request in order to more effectively carry out the intent and purposes of this
Agreement and the transactions contemplated hereby, and will take all such other
actions or cause such actions to be taken as may be necessary or as may be
requested by MCE or its assigns in order to establish, preserve, protect and
perfect the good and marketable title of MCE to the Fiber System; provided that
anything in this Section 28 notwithstanding, MCE acknowledges and agrees that
ACSI is granting a security interest, and MCE consents in the granting of such
security interest, in the rights of ACSI under this Agreement to the Lender in
connection with the Secured Financing Arrangement.
Section 29. Miscellaneous Provisions
(1) This Agreement embodies the entire agreement between the parties. It
may not be modified or terminated except as provided herein or by other written
agreement between the parties. If any provision is invalid, it shall be
considered deleted from this Agreement, and such invalidity shall not invalidate
the remaining provisions of this Agreement.
(2) Before resorting to any litigation, the parties agree to exercise
reasonable efforts to amicably resolve the dispute by negotiations between the
appropriate representatives or executives of the parties.
(3) This Agreement shall be governed by the laws of the State of Alabama.
Venue for any litigation between the parties shall be in the Circuit Court of
Xxxxxxxxxx County, Alabama, excluding the choice-of-law rules thereof.
(4) Each party and counsel for each party have reviewed this Agreement.
Accordingly, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
(5) The failure of either party to insist on the performance of any of the
terms of this Agreement, or the waiver of any breach of any of the terms of this
Agreement, shall not be construed as thereafter waiving any such terms, or any
others, but the terms shall continue and remain in full force and effect as if
no such forbearance or waiver had occurred.
(6) It is understood and agreed by the parties that this Agreement shall
not in any way be construed as creating any relationship between the parties
other than that expressly provided herein.
(7) The headings of the sections in this Agreement are for the purpose of
reference only and shall not limit or affect the meaning of the Agreement as a
whole or of the sections thereof.
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(8) All dollar amounts indicated in this Agreement are denominated in
United States currency.
(9) The parties hereto agree that this Agreement, to the extent it is
subject to Federal Communications Commission ("FCC") regulation, is an
inter-carrier agreement, which is not subject to the filing requirements of
Section 211(a) of the Communications Act of 1934 (47 U.S.C. Section 211(a)) as
implemented in 47 C.F.R. Section 43.51.
(10) In connection with the matters provided for in this Agreement, each
party hereto shall comply with all applicable laws and regulations, including,
but not limited to, the Communications Act of 1934, as amended, and the
policies, rules and regulations of the FCC.
(11) Neither ACSI nor MCE shall, without the other party's prior written
consent: (i) use the other party's name in promotional, advertising or other
materials, or (ii) use the other party's logos, trade marks, service marks, or
any variations thereof in any of its promotional, advertising or other
materials.
(12) Nothing in this Agreement shall constitute a joint undertaking by
either ACSI or MCE for the furnishing of any service to customers of the other
party. Nothing in this Agreement shall be deemed to create any relationship
between ACSI and MCE other than that of independent parties contracting with
each other solely for the purpose of carrying out the provisions of this
Agreement. Neither of the parties hereto shall be deemed or construed, by virtue
of this Agreement, to be the agent, employee, representative, partner, or joint
venturer of the other party.
(13) If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
said agreement.
(14) It is the explicit intention of the parties hereto that no person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against either of the parties hereto,
and that the covenants, undertakings, and agreements set forth in this Agreement
shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto or their respective successors and assigns as permitted
hereunder.
(15) The terms and provisions contained in this Agreement that by their
sense and context are intended to survive the termination or expiration of this
Agreement shall so survive the termination or expiration of this Agreement,
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including, without limitation, provisions for the making of any and all payments
due hereunder.
Section 30. Agreed Changes to the Fiber System
The Fiber System is being extended to areas within or around the City of
Montgomery, Alabama at the request of ACSI, which extensions ("System
Extensions") are set forth on Exhibit G. The Route, Phases, estimated
construction schedule and "Not Later Than" dates for such System Extensions
shall be as set forth on Exhibit G. ACSI shall bear [____] of the construction
cost of the System Extensions, [_______________________________________________
_______________________________________________________________________________
_________________________________.] The parties shall negotiate in good faith
concerning any proposed additions or changes to Exhibit F, and any such
additions or changes shall be set forth on amendments to Exhibit F signed by
the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized persons.
AMERICAN COMMUNICATION
SERVICES OF MONTGOMERY, INC.
/s/ Name: /s/ Xxxxxx X. Xxxxxxxx III
--------------------------
Title: Executive Vice President
-------------------------
Date: 9/29/95
--------------------------
XXXXXXXXXX CABLEVISION AND
ENTERTAINMENT, INC.
/s/ Name: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------
Title: CEO
-------------------------
Date: 9/29/95
--------------------------
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***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT A
Routes and Phases
Phase 1: [______________________________________________________________
_____________________________________________________
____________]
Phase 2: [________________________________________________________________
_________________________________________________________________
________________________________________]
Phase 3: [________________________________________________________________
___________________________________________________________]
24
EXHIBIT B
Estimated Costs and Expenses of Construction, Timing
Estimated Construction
"Not Later Than"
Cost Start Date Completion Date Completion Date
---- ---------- --------------- ---------------
Phase 1: [___________] 09/29/95 01/31/96 04/30/96
Phase 2: [___________] 03/01/96 06/30/96 09/30/96
Phase 3: [___________] 01/02/96 05/31/96 08/31/96
25
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT C
ACSI Conduit and Fiber Optic Cable Route
The ACSI Network route is along the following streets in the City of Xxxxxxxxxx:
City Right of Way: From: To:
[__________] [_________________] [____________]
[___________] [_____________] [___________]
[____________] [____________] [______________]
[_____________] [____________] [_______________]
[_______________] [______________] [________________]
[________________] [_______________] [____________]
[____________] [________________] [______________]
[______________] [____________] [____________]
[____________] [______________] [___________]
[___________] [____________] [_______________]
[_______________] [___________] [_________________]
[_________________] [_______________] [__________]
26
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT D
[__________________________________]
for Years 1 through 10 based
upon ACSI's 4/3/95 Montgomery Business Plan Booked Net Income Projection
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
------ ------ ------ ------ ------ ------ ------ ------ ------ -------
[_] [_] [_] [_] [___] [_____] [_____] [_____] [_____] [______]
Total Cumulative Minimum Payment: [_______]
Average Cumulative for Period: [___________]
27
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT E
Target Building List
[_____________________]
[_______________________]
[_____________________]
[_______________]
[_____________________]
[______________________]
[______________________]
[____________________]
[________________]
[__________]
[________________]
[_____________________]
[_______________]
[____________________]
[___________________]
[_____________________]
[________________]
[__________________]
[___________________]
[___________________]
[__________________]
[______________________]
[_________________]
[____________________]
[____________________]
[________________]
[_________________]
[________________]
[__________________]
28
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT F
Estimated Cost and Expenses of Construction
Estimated Construction
"Not Later Than"
Cost Start Date Completion Date Completion Date
---- ---------- --------------- ---------------
Phase 1g: [_________] 01/02/96 06/30/96 09/30/96
Phase 2g: [__________] 01/02/96 06/30/96 09/30/96
Phase 3g: [__________] 01/02/96 06/30/96 09/30/96
Phase 4g: [__________] 10/15/95 03/30/96 06/30/96
Phase 5g: [___________] 01/01/96 06/30/96 00/00/00
Xxxxxx xxx Xxxxxx
Xxxxx 0x: [__________________________________________________________________
_________________________________________________________________]
Phase 2g: [_________________________________________________________________
______________________________________________________]
Phase 3g: [_____________________________________________________________
___________________________________________________________________
_______]
Phase 4g: [______________________________________________________________
___________________________________________________________________
_______________]
Phase 5g: [_____________________________________________________________
___________________________________________________________________
_________________________________________________________________
____________________________________]
29
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT entered into as of the 17th day of August, 1995 between
AMERICAN COMMUNICATIONS SERVICES, INC. ("ACSI"), with offices at 000 Xxxxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000 and CYBERNET HOLDING LLC,
with offices at 1239 X.X. Xxxxxxx Drive, Xxxx Xxxxxx Xxx 000, Xxxx Xxxxx,
Xxxxxxx 00000.
1. ACSI and CYBERNET HOLDING LLC, intend to disclose to each
other information, which may include confidential information, relating to the
evaluation of a possible working/business relationship (the "Potential
Relationship"). The term "Confidential Information" shall mean any information
or data which is disclosed by a party to the other party under or in
contemplation of this Agreement and which (a) if in tangible form or other
media that can be converted to readable form, is clearly marked as proprietary,
confidential, or private when disclosed, or (b) if oral, is identified as
proprietary, confidential, or private on disclosure and is summarized in a
writing so marked and delivered within thirty (30) days following such
disclosure. Confidential Information may be either the property of the
disclosing party or information provided to the disclosing party by a corporate
affiliate of the disclosing party or by a third party.
2. This Agreement expressly does not encompass the corporate
affiliates of either party hereto. Consequently, affiliates of either party
may not disclose Confidential Information to the other party or its affiliates,
and affiliates of either party may not receive Confidential Information from
the other party or its affiliates.
3. The receiving party acknowledges the economic value to the
disclosing party of all Confidential Information. With respect to Confidential
information, the recipient shall:
(a) use the Confidential Information only for the purpose
of evaluating the Potential Relationship;
(b) restrict disclosure of the Confidential Information
solely to those employees or authorized representatives of such party
and its affiliates with a "need to know" and not disclose it to any
other person or entity without the prior written consent of the
disclosing party;
(c) advise those personnel who gain access to
Confidential Information of their obligations with respect to the
Confidential Information;
(d) make only the number of copies of the Confidential
Information necessary to disseminate the information to those
personnel who are entitled to have access to it, and ensure that all
confidentiality notices set forth on the Confidential Information are
reproduced in full on such copies;
(e) safeguard the Confidential Information with the same
degree of care to avoid unauthorized disclosure as recipient uses to
protect its own confidential and private information; and
(f) maintain a list of recipient personnel permitted
access to Confidential Information and, upon request, provide the
disclosing party
30
with a copy of the list.
A "need to know" basis means that the person requires the
Confidential Information in order to perform his or her
responsibilities in connection with evaluating the Potential
Relationship.
4. The obligations of Paragraph 3 shall not apply to any
Confidential Information which the recipient can demonstrate:
(a) is or becomes available to the public through
no breach of this Agreement;
(b) was previously known by the recipient without
any obligation to hold it in Confidence;
(c) is received from a third party free to
disclose such information without restriction;
(d) is independently developed by the recipient
without the use of Confidential Information of the disclosing
party;
(e) is approved for release by written
authorization of the disclosing party, but only to the extent
of and subject to such conditions as may be imposed in such
written authorization;
(f) is required by law or regulation to be
disclosed, but only to the extent and for the purposes of such
required disclosure; or
(g) is disclosed in response to a valid order of
a court or other governmental body of the United States or any
political subdivisions thereof, but only to the extent of and
for the purposes of such order, provided, however, that the
recipient shall first notify the disclosing party of the order
and permit the disclosing party to seek an appropriate
protective order.
5. When requested by the recipient, the disclosing party will
provide a nonconfidential summary prior to disclosure of the actual
Confidential Information to enable the recipient to determine whether it can
accept the Confidential Information. Each party has the right to refuse to
accept any information under this Agreement, and nothing obligates either party
to disclose to the other party any particular information.
6. Each party acknowledges its obligation to control access to
and/or exportation of technical data under the applicable export laws and
regulations of the United States, and each party agrees to adhere to and comply
with the laws and regulations with respect to any technical data received under
this Agreement.
7. Confidential Information, including permitted copies, shall be
deemed the property of the disclosing party. The recipient shall, without
twenty (20) days of a written request by the disclosing party, return all
Confidential Information, including all copies thereof, to the disclosing party
or destroy all such Confidential Information. The recipient shall also, within
ten (10) days of
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31
a written request by the disclosing party, certify in writing that it has
satisfied its obligations under Paragraph 3, 6 and 7 of this Agreement.
8. Both parties agree that an impending or existing violation of
any provision of this Agreement would cause the disclosing party irreparable
injury for which it would have no adequate remedy at law, and that the
disclosing party shall be entitled to seek immediate injunctive relief
prohibiting such violation, in addition to any other rights and remedies
available to it.
9. Nothing contained in this Agreement or in any discussions
undertaken or disclosures made pursuant hereto shall (a) be deemed a commitment
to engage in any business relationship, contract or future dealing with the
other party, or (b) limit either party's right to conduct similar discussions
or perform similar work to that undertaken pursuant hereto, so long as said
discussions or work do not violate this Agreement.
10. No patent, copyright, trademark or other proprietary right or
license is granted by this Agreement or any disclosure hereunder, except for
the right to use such information in accordance with this Agreement. No
warranties of any kind are given with respect to the Confidential Information
disclosed under this Agreement or any use thereof, except as may be otherwise
agreed to in writing.
11. This Agreement shall be effective as of the date first written
above and shall continue until terminated by either party at will, provided,
however that the obligations under this Agreement survive termination thereof.
12. This Agreement may not be assigned by either party without the
prior written consent of the other except that ACSI may assign this Agreement
to any of its affiliates upon prior written notice to CYBERNET HOLDING LLC. No
permitted assignment shall relieve a party of its obligations hereunder with
respect to Confidential Information disclosed to that party prior to the
assignment. Any assignment in violation of this Section shall be void. This
Agreement shall be binding upon the parties and their respective successors and
assigns.
13. If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which so far as possible achieves
the parties' intent in agreeing to the original provision. The remaining
provisions of this Agreement shall continue in full force and effect.
14. Each party warrants that it had the authority to enter into
this Agreement to lawfully make the disclosures contemplated hereunder.
15. This Agreement represents the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior
communications, agreements and understandings related thereto. The provisions
of this Agreement may not be modified, amended, or waived, except by a written
instrument duly executed by both parties. This Agreement shall be governed in
all respects by the domestic laws of the State of Maryland.
16. Both parties agree not to disclose the ITC's pending
acquisition of DeltaCom.
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AMERICAN COMMUNICATIONS SERVICES, INC.
BY: /s/ XXXXXX X. XXXXXXXX, III
------------------------------
TITLE: Executive Vice President
---------------------------
CYBERNET HOLDING LLC
BY: /s/ XXXXXXXX X. XXXXXXXXX
------------------------------
TITLE: President & CEO
---------------------------
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