***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.***
Exhibit 10.44.1
FIRST AMENDMENT TO THE AGREEMENT FOR THE PROVISION
OF TELECOMMUNICATIONS SERVICES AND FACILITIES
WHEREAS, Carolinas FiberNet, LLC ("CFN") and Interstate FiberNet, GP
have executed the Agreement for the Provision of Telecommunications Services and
Facilities, dated January 27, 1996 (the "Agreement") whereby CFN and Interstate
FiberNet, GP agreed to interconnect their respective networks and agreed to
cross-market internetwork telecommunications transport; and
WHEREAS, pursuant to Section 10.12 of the Agreement, Interstate
FiberNet, GP has assigned its rights and obligations under the Agreement to ITC
Transmission Systems, Inc. ("ITC"); and
WHEREAS, in connection with the reorganization of certain companies
affiliated with ITC, ITC has changed its name to Interstate FiberNet, Inc.
("IFN"); and
WHEREAS, due to changes in the telecommunications environment, CFN and
IFN agree that certain amendments should be made to the Agreement; and
WHEREAS, pursuant to Section 10.7 of the Agreement, the Agreement may
be amended by an instrument in writing duly executed by CFN and IFN.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, CFN and IFN covenant and agree that the Agreement is amended
as follows:
1. Effective September 1, 1997, Section 3.3 of the Agreement shall be
amended by inserting the following sentence at the end of the section:
CFN and IFN each agree to provide a total of at least [__] DS-3s of
Capacity to the Meet Point as initial Capacity and additional Capacity
under this Agreement.
2. Effective September 1, 1997, Section 3.5 of the Agreement is
amended by adding the following three paragraphs to the end of the section:
As frequently as necessary, but not less than at annual
intervals, both Parties agree to reassess the tier designations
of each of its cities (to which a Party provides Capacity) and to
redesignate each city in the appropriate tier based on the then
current market conditions.
Upon
[________________________________________________________________
_____] CFN and IFN agree to renegotiate the Stated Compensation
Rate applicable to such city pairs for all Capacity provided
under this Agreement to the applicable CFN/IFN Tier I city pair.
CFN and IFN intend that the renegotiated Stated Compensation Rate
shall be equal to or greater than $[__] for Tier I DS-3s.
On a case-by-case basis which shall be evidenced by a
written agreement signed by both Parties, CFN and IFN agree that
the Parties may establish a separate Stated Compensation
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Rate with respect to certain sales covering large amounts of
Capacity.
3. Effective September 1, 1997, Section 7.3 of the Agreement is
amended by adding the following paragraph to the end of the section:
In the case of sale of (1) available Capacity to a Tier I
city pair (within the meaning of Section 3.2 of the Agreement) as
of September 1, 1997; (2) additional Capacity to a Tier I city
pair (within the meaning of Section 3.3 of the Agreement) which
is added after September 1, 1997 (i.e., Capacity not utilized to
provide Service sold to Customers on September 1, 1997); or (3)
renewed Capacity to a Tier I city pair which is renewed after
September 1, 1997 (i.e., Capacity covered by a contract executed
prior to September 1, 1997 which is subsequently renewed after
the expiration of the original contract's initial term), the
Seller shall not be required to pay the Provider the Bonus
Compensation Fee.
4. Effective for sales of (1) available Capacity (within the meaning
of Section 3.2 of the Agreement) as of September 1, 1997; (2) additional
Capacity (within the meaning of Section 3.3 of the Agreement) which is added
after September 1, 1997; or (3) renewed Capacity which is renewed after
September 1, 1997 (i.e., Capacity covered by a contract executed prior to
September 1, 1997 which is subsequently renewed after the expiration of the
original contract's initial term), Schedule 3.5 is amended by adding the
following to the end of the Schedule:
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Tier I Pricing Basic Schedule (no free months) [Post 9/1/97 sale]
DS-1 [_____]
DS-3 [_____]
OC-12 [_____]
Tier I Pricing (one free month for each 11 months of service) [Post
9/1/97 sale]
DS-1 [_____]
DS-3 [_____]
OC-12 [_____]
CFN and IFN reserve the right (pursuant to the procedures provided in
Section 10.7 of the Agreement) to amend at any time any of the terms or
provisions of this First Amendment. This Amendment shall be subject to the non-
disclosure provisions contained in Article VIII of the Agreement. Except as
expressly or by necessary implication amended hereby, the Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, CFN and IFN have caused this Amendment to be
executed by its duly authorized officers.
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CAROLINAS FIBERNET, LLC
By: DUKENET COMMUNICATIONS, INC. By: PALMETTONET, INC.
Member Member
By: /s/ Illegible By: /s/ Illegible
----------------------------- -----------------------------
Its: President Its:
----------------------------- -----------------------------
By: CARONET, LLC By: ACCESS/ON INTER-
Member EXCHANGE SERVICES, INC.
Member
By: /s/ Illegible By: /s/ Illegible
----------------------------- -----------------------------
Its: General Manager Its: Treasurer
----------------------------- -----------------------------
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Its: SNR VP CFO
-----------------------------
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