EXHIBIT 10.45
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***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.***
FLORIDA POWER CORPORATION
FIBER OPTIC FACILITIES AGREEMENT
THIS AGREEMENT (the Agreement) is entered into as of this 15 day of
--
November, 1996, by and between Florida Power Corporation (FPC), a Florida
Corporation, 0000 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, and
Interstate FiberNet (IFN or Telecommunications Company), a Georgia General
Partnership, with offices at 000 Xxxx 0xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, FPC operates or is constructing a fiber optic telecommunication
system for its own use on certain of its overhead and underground electric
transmission and distribution facilities in the state of Florida; and
WHEREAS, certain dark fibers within that system are not immediately
required by FPC for its own use during the term of this Agreement; and
WHEREAS, IFN intends to provide a fiber optic telecommunications service
and will require the availability of dark fibers as part thereof; and
WHEREAS, FPC is willing, during the term of this Agreement, to grant to IFN
the use of certain dark fiber as herein provided, where such use will not
interfere with FPCs own service requirements,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein, the parties agree as follows:
1. Scope of Agreement IFN intends to provide a telecommunications service
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utilizing the FPC dark fiber between certain points and FPC hereby
agrees to provide the dark fiber in order to facilitate the service
that IFN will provide. The dark fiber to be utilized by IFN is more
particularly described on the Exhibit A attached hereto and hereby
incorporated by reference.
2. Effective Date of Agreement This Agreement shall become effective upon its
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execution by the parties.
3. Definitions. For purposes of this Agreement and as used herein, the terms
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set forth below shall be defined as follows:
A. Acceptance Test - The tests conducted on the IFN Fibers to insure that
the IFN Fibers meet or exceed the fibers specifications outlined in
Exhibit C.
B. Acceptance of IFN Fibers - As outlined in Section 4.1, IFN's written
approval that the IFN Fibers have passed the Acceptance Test
C. Affiliate - Any entity that directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common
control with the entity specified as a result of ownership of more
than 50 percent of the voting capital stock or voting securities of
such entity or any entity which acquires all or substantially all of
such entity's assets.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
1
D. Cable - The FPC owned fiber optic cable incorporating the FPC Fibers
and the fibers to be utilized by IFN pursuant to this Agreement
E. Fiber Acceptance Date - The date on which IFN Fibers in the Cable
constituting a communication circuit between IFN service points as
defined in Exhibit A has passed the Acceptance Test and has met the
conditions of Section 4.1: Acceptance of IFN Fibers.
F. FPC - Florida Power Corporation, its parent, Affiliates and
subsidiaries, and their directors, officers, employees, agents,
successors and permitted assigns.
G. FPC Fibers - For purposes of this Agreement, all optical fibers not
dedicated for IFN's use shall be considered FPC Fibers whether used by
FPC or used by a third party.
H. FPC Make-Ready - The installation, upgrading or replacement of
overhead or underground facilities necessary to safely and properly
support the Cable in accordance with the requirements of the National
Electrical Safety Code (NESC). FPC Make-Ready cost shall consist of
the sum of FPC's direct cost as hereinafter defined plus fifteen
percent (15%). FPC's direct cost shall include all material, labor
engineering and supervision and travel and loading expenses required
for the installation, upgrading or replacement of overhead or
underground facilities, cost of removal less any salvage value and the
expense of transferring FPC's existing facilities. FPC Make-Ready
shall be mutually agreed upon as described in Exhibit B.
I. IFN Fibers - The dark optical fibers hereunder which are to be
dedicated exclusively to IFN's use as provided herein.
J. IFN Premises - That portion of IFN occupied facilities dedicated to
IFN's use and the housing of its equipment, to accomplish that which
is set out in Section 1.
K. NESC - The term NESC shall mean the current edition of the National
Electrical Safety Code, as amended or revised.
L. Regeneration Facility Location - Locations where repeater equipment
enclosures will be installed as outlined in Exhibit E.
M. Route Segment - A portion of the Cable installed between two points as
set forth in Exhibit A, further defined as:
l. Off-Network - constructed specifically due to the requirement for
connectivity between IFN's service points and the existing or
planned FPC fiber optic telecommunications network.
2. On-Network - contiguous within the existing FPC fiber optic
telecommunications system or to be constructed in conjunction
with the planned expansion of the FPC fiber optic
telecommunications system.
4. Application for IFN Fibers.
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A. Beginning with the Effective Date of this Agreement, the execution by
both parties of the Exhibit A attached hereto and by reference made a
part hereof, shall be the exclusive procedure to be used by IFN in
obtaining the use of dark fiber from FPC.
CONFIDENTIAL & PROPRIETARY INFORMATION N
PROPERTY OF FLORIDA POWER CORPORATION
2
B. Upon receipt of a request for service from IFN, the parties shall
consult in good faith concerning the request, giving due consideration
to the then-existing and projected electric transmission and
distribution and telecommunication requirements of FPC and to such
other factors as they may reasonably deem relevant. Following such
consultation, if FPC can accommodate the request FPC will furnish to
IFN an estimate of annual fee requirements and anticipated Fiber
Acceptance Date(s) (Exhibit A) for IFN's review and acceptance. In
addition, FPC will furnish an estimate of any FPC Make-Ready (Exhibit
B) that is necessary in order to safely and properly install the Cable
and support the Route Segment for IFN's review and acceptance.
C. Upon receipt of IFN's acceptance of the above and payment for any FPC
Make-Ready necessary and upon acceptance by FPC, all appropriate
Exhibits shall be attached hereto and made a part hereof and FPC will
exercise its best efforts to provide the IFN Fibers to IFN in
accordance therewith FPC further agrees to provide written
notification to IFN upon availability of the IFN Fibers.
4.1 Acceptance of IFN Fibers. Upon completion of construction of the Cable and
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any FPC Make-Ready, FPC will Acceptance Test the IFN Fibers to insure that
the IFN Fibers meet or exceed the Fibers specifications outlined in Exhibit
C. In the event the IFN Fibers meet such specifications, FPC shall notify
IFN in writing of the availability of the IFN Fibers (the Fiber Notice).
Within 5 business days of IFN receiving the Fiber Notice, IFN shall give
FPC written notice of any failure of the IFN Fibers to satisfy IFN's
Acceptance Test
If IFN gives FPC written notice of such failure, FPC shall use its best
commercial efforts to promptly correct such failure, whereupon IFN and FPC
shall jointly conduct another Acceptance Test This procedure shall be
repeated until all IFN Fibers meet or exceed the specifications outlined in
Exhibit C.
In the event deficiencies continue to be identified after the third round
of testing, IFN may, at its option, conditionally accept the IFN Fibers
and, upon such conditional acceptance, commence payment of the fees as set
forth in Exhibit A and according to Section 5A. FPC will correct any such
deficiencies within sixty (60) days of conditional acceptance.
If IFN does not give FPC written notice of such failure within 5 business
days of IFN receiving the Fiber Notice, it shall be deemed that IFN has
accepted the IFN Fibers.
The day in which IFN has accepted the IFN Fibers will be considered the
Fiber Acceptance Date, and fees referenced in Section 5A and specified in
Exhibit A shall commence on this date.
In the event an Off-Network Route Segment(s) is not constructed in time for
the Acceptance Test of the remaining Route Segment(s) identified in Exhibit
A, Section 12 shall apply with respect to that Off-Network Route Segment
and FPC and IFN shall proceed with this Section 4.1, including testing and
acceptance of those Route Segments completed. In such event, this Section
4.1 shall be repeated for such Off-Network Route Segment subject to Section
12 when and if such Segment is completed.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
3
5. Price and Payment
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A. Subject to the allowances for interruptions set forth in Section 8
hereof, IFN shall pay FPC a license fee for the use of the IFN Fibers
provided by FPC, said fee to commence On the actual Fiber Acceptance
Date. The term and fee amount payable to FPC for the IFN Fibers shall
be as shown on attached Exhibit(s) A or as amended. Said fees shall be
payable monthly, in advance, on the first day of each month. Should
the Fiber Acceptance Date be any date other than the first of the
month, then that initial month's fee shall be prorated based on the
actual date.
B. Unless a payment is disputed in good faith, if for any reason IFN is
delinquent in the payment of any amounts due to FPC under this
Agreement for more than thirty (30) days, after written notice of the
past due amount IFN shall pay interest on such unpaid amount from the
date such payment is due until such payment is made. The interest rate
shall be the lesser of 18% per annum or the maximum permitted by law.
C. Upon execution of this Agreement, IFN will advance FPC a non-
refundable (except as provided in Section 12.2(B)) amount equal to
three month's license fee for each Exhibit A approved by FPC and
accepted by IFN in accordance with Section 4 of this Agreement. The
advance shall be considered as prepayment toward IFN's first year
obligation in the initial term under Section 5A.
D. Rates applicable to any renewal term shall be specified on the
attached Exhibit D.
5.1 [________________________________________________________________].
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[_____________________________________________________________________
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______________________________________________________________________
____________________________________________________________________].
5.2 [_________________________][_______________________________________________
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___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
__________________________________].
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
4
6. Ownership. The IFN Fibers shall at all times remain the sole and exclusive
---------
property of FPC. Legal title shall be held by FPC. Neither the provision of
the use of IFN Fibers by FPC to IFN hereunder, nor the payments by IFN
contemplated hereby, shall create or vest in IFN any easement, interest or
any other ownership or property right of any nature in the Cable, except
FPC warrants, subject to the provisions of this Agreement, IFN's right to
use the IFN Fibers for lawful telecommunications transmission purposes
during the term of this Agreement pursuant to the provisions of this
Agreement IFN shall not grant any security interest in the IFN Fibers or
any part or component thereof.
7. Use of Fiber; Taxes, Franchises and Easements.
------ --------------------------------------
A. IFN warrants that its use of the IFN Fibers shall at all times be in
compliance with all certifications, licenses, permits, etc., as
required by proper regulatory authority and that IFN shall not use,
provide the use, or receive a fee for the use of the IFN Fibers or
capacity to others without having obtained such authorization.
B. FPC shall be responsible for and shall pay any and all taxes or fees
with respect to the construction or operation of the FPC Cable,
including, but not limited to, any sales, use, franchise or excise tax
however designated, levied or based, which taxes or fees are (i)
imposed or assessed prior to the Acceptance Date, or (ii) imposed or
assessed (regardless of time) solely with respect to the FPC Cable in
exchange for the approval of construction or in the granting of an
interest in public property or a public right-of-way relating to the
situation of the FPC Cable in public right-of-way. Any fees incurred
by reason of the use of the IFN Fibers or the provision of
telecommunication services by IFN within a local jurisdiction shall be
the responsibility of IFN. IFN shall be responsible for and shall pay
any and all taxes or fees, including franchise fees, imposed as a
result of its use of the IFN Fibers pursuant to this Agreement. IFN
shall, at its own expense, obtain all municipal street franchise
rights that may be required for the use of the IFN Fibers thereof by
IFN. IFN shall be responsible for and shall pay any and all taxes or
fees, including but not limited to, any sales or use tax, levied or
based on the payment of the license fee set forth in Section 5A, but
excluding, however, any federal or state income taxes due by FPC
resulting from receipt of the license fee and excluding any ad valorem
taxes due on the IFN Fibers and the IFN Premises owned by FPC.
C. Other than as set forth in Section 7A and 7B, FPC shall be
responsible, at its own expense, for the acquisition of any easement
or rights-of-way rights that may be required in order to permit the
installation of the Cable; FPC shall use its best commercial effort,
including, if necessary, reasonable legal efforts to obtain such
rights; provided, however, nothing herein shall be deemed as
obligating FPC to pay any exorbitant or grossly disproportional amount
for the acquisition of such rights.
D. During the term of this Agreement, FPC may use or permit the use of
the FPC Fibers and the telecommunication capacity thereof for any
lawful purpose. Nothing in this Agreement shall be construed or
interpreted to prohibit FPC from leasing or licensing the use of the
FPC Fibers or otherwise providing telecommunications capacity to
others or from installing or permitting others to install additional
Fibers or telecommunication capacity, including without limitation,
fiber optic telecommunication capacity, within the right-of-way
constituting any Route Segment or to prohibit FPC from operating such
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
5
telecommunication capacity (alone or in combination with others) in
competition with the IFN Fibers; provided however, that no such
installation or operation shall interfere with IFN's use of the IFN
Fibers and the telecommunication capacity thereof.
E. IFN shall not provide the use, receive a fee for the use, or sublease
any or all of the IFN Fibers to any entity without first obtaining the
prior written consent of FPC. FPC shall not unreasonably withhold its
approval of said request from IFN. In the event that IFN receives
approval to sublease any or all of the IFN Fibers, and the sublease
amount is in excess of the amount paid by IFN to FPC, FPC will be
entitled to an amount equal to the difference between the sublease
amount and the lease amount paid to FPC by IFN. This Section shall not
be deemed as precluding IFN from leasing capacity on the IFN Fibers to
others without the prior written consent of FPC.
8. Performance and Maintenance.
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A. FPC warrants and agrees that the provision of the IFN Fibers hereunder
shall be in conformity with and shall comply with all the requirements
of this Agreement, that such provision shall be made in a good and
workmanlike manner and in accordance with industry standards in order
to enable IFN to provide the telecommunication service. FPC further
warrants and agrees that the IFN Fibers shall meet or exceed the
specifications outlined in Exhibit C.
B. FPC agrees to perform periodic inspections of the Cable and supporting
structures. FPC further agrees to perform periodic inspections,
testing, and any and all maintenance required for the provision of the
IFN Fibers and to maintain and provide adequate spare equipment and
parts as is appropriate for its obligations hereunder. FPC will make
every effort to schedule service-affecting work from midnight to 6
A.M. on Sunday morning and Monday morning during the first and third
weekends of each month, excluding the period beginning two days prior
to Thanksgiving and ending on the following January 3. FPC will notify
IFN as per Exhibit F.
C. In the event of any interruption of provision of the IFN Fibers to IFN
(Outage), FPC shall furnish immediate notice to IFN, and shall specify
in such notice the nature and cause of the interruption, the extent of
the repairs required, and the estimated time to restore, as per
Exhibit F. FPC further agrees to use its best efforts to restore the
provision of the IFN Fibers on an expedited basis, and to restore the
Route Segment and any splicing of the IFN Fibers in a systematic and
rotational manner, with IFN Fibers having equal priority to other
Fibers within the Cable; every attempt will be made to dispatch repair
technicians to the affected site within 2 hours, and to keep the
Outage to less than 12 hours provided however, that nothing herein
shall be construed to preclude FPC from giving higher priority to the
restoration or preservation of electric power service (including
without limitation the restoration or preservation of communications
capability that in FPC's judgment is immediately necessary to the
provision of electric power service) than to the restoration of
service hereunder. in the event an Outage exceeds 24 hours, FPC will
extend to IFN a credit equal to one day's license fee (to be
considered 1/30th of the then current monthly rate) for each
consecutive 24- hour Outage interval, or fraction thereof, in excess
of the initial 24 hours. (e.g. 26-hour Outage = 1 day credit; 40-hour
Outage = 1 day credit; 50-hour Outage = 2 day credit). The credit
shall be applied to the subsequent month's license fee payment.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
6
D. In the event repeater equipment is needed, FPC and IFN will specify a
mutually appropriate location(s) (Regeneration Facility Location(s))
for FPC to install and maintain an enclosure for the purpose of
housing such repeater equipment. Specifications for the enclosure and
the location of this Regeneration Facility Location(s) shall be
outlined in Exhibit E. Such location(s) may or may not be collocated
at an existing FPC location(s). FPC shall be responsible for the
purchase, operation, maintenance, and repair, of all enclosures, HVAC,
and associated backup power equipment at Regeneration Facility
Locations, except as outlined in Exhibit E. IFN shall be responsible
for costs, if any, associated with the preparation of repeater
location(s) as specified in Exhibit E.
E. IFN shall be solely responsible, at its own expense, for the purchase,
installation, operation, maintenance and repair of all IFN equipment
and IFN facilities required in connection with the use of the IFN
Fibers.
F. IFN may request that FPC splice into the IFN Fibers at additional,
pre-existing splice points in the future, subject to FPC's approval,
not to be unreasonably withheld. IFN will schedule all such splicing
activities with FPC at a mutually agreed-upon time. All such splicing
will be performed by FPC, and IFN shall reimburse FPC for all FPC
Make-Ready costs as defined in Section 3H and outlined in a Make-Ready
cost estimate FPC shall furnish to IFN upon such request of additional
splice(s).
9. Alteration of Route. Whenever, during the term of this Agreement, it may be
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necessary or desirable from the standpoint of FPC's electric utility
operations to do so, or if required by public authorities or by a final
order or decree of a court or administrative agency, FPC may, upon
reasonable notice to IFN, relocate all or any part of the Cable to one or
more alternate routes or rights-of-way (inducing without limitation
replacing overhead cable with underground cable, or replacing underground
cable with overhead cable, if such replacement is in connection with an
abandonment, relocation or replacement of electric transmission facilities
over, under, on, upon or in which the Cable has been installed). [_________
___________________________________________________________________________
_____________________________________________________________________]. In
such event, FPC shall give IFN as much prior notice as reasonably
practicable, and the parties shall cooperate to accomplish the transfer of
service over the Cable to the new route or right-of-way so as to minimize
any interference with the use of the IFN Fibers or the FPC Fibers by either
party and to avoid unreasonably impairing the ability of each to provide
telecommunication service of the type, quality and reliability contemplated
by this Agreement.
[__________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
_______________________].
10. Termination. in addition to any other rights of termination specified
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herein, this Agreement may be terminated upon thirty (30) days prior
written notice, as follows:
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
7
A. By either party, in the event that an injunction or other final order
or judgment is entered in any lawsuit or regulatory proceeding
restraining performance under this Agreement, declaring or otherwise
rendering performance unlawful or compelling removal, discontinuation
or divestiture of all or part of the Route Segment, or directing FPC
to pay an exorbitant or grossly disproportional amount in FPC's
reasonable judgment for the acquisition of any easement or rights-of-
way rights and such injunction, order or judgment has not been
vacated, reversed, or stayed within 30 days from the date of entry
thereof;
B. By FPC, in the event of a catastrophic failure or expiration of the
Cable anytime after the 15th year after the Fiber Acceptance Date of
the IFN Fibers [______________________________________________________
_______________________]. By FPC, if a catastrophic failure or
expiration of the Cable creates a casualty loss in excess of [___] (as
measured in a percentage of route miles of fiber) of the IFN Fibers
and the FPC Fibers occurs prior to the end of the [___] year or in
excess of [___] (as measured in a percentage of route miles of fiber)
of the IFN Fibers and the FPC Fibers occurs after the [___] year but
prior to the end of the [___] year. In the event of a catastrophic
failure that is less than the percentages detailed above and FPC
determines in its discretion not to return the IFN Fibers to the
standards set forth in Exhibit C, [___________________________].
C. By either party, in the event that any of the transactions
contemplated by this Agreement are finally disapproved of by any
Government Authority whose approval is required to consummate such
transactions.
10.1 [____________________]. [_____________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
_______________].
11. Effect of Termination. Upon any termination pursuant to Section 10 and
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payment of any amount required pursuant to Section 10.1, except as
provided below, this Agreement shall be terminated and neither party
nor any of its directors, officers, stockholders, Affiliates, general
partners, or limited partners shall have any continuing liability to
the other party or its directors, officers, stockholders, Affiliates,
general partners, or limited partners under this Agreement. Provided,
however, that the obligations of the parties under Section 14 of this
Agreement, and the obligations of IFN to pay license fees through the
effective date of such termination, shall remain in full force and
effect, and no termination pursuant to this Section 11 shall entitle
IFN to the return of any license fee theretofore paid or afford to
IFN any defense to the payment of license fees then due and payable.
12. Elimination of Off-Network Route Segment. Failure to complete
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construction of any Off-Network Route Segment as detailed in Exhibit A
shall not constitute an Event of Default. [___________________________
______________________________________________________________________
________________________________].
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
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A. [____________________________________________________________________
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________________]
[__________________________________________________________
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[__________________________________________________________
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B. [____________________________________________________________________
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C. [____________________________________________________________________
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D. [____________________________________________________________________
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____________________________________________________________________].
[______________________________________________________________
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______________________________].
[______________________________________________________________
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___________________________].
[______________________________________________________________
______________________________________________________________].
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
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12.1 Default
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A. An event of default (Event of Default) by IFN exists if any one or
more of the following events shall occur and be continuing past any
applicable cure periods:
(i) IFN shall admit in writing its inability to pay its debts as
such debts become due;
(ii) IFN shall (1) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee
of liquidator of itself or of all or a substantial part of
its property; (2) make a general assignment for the benefit
of its creditors, (3) commence a voluntary case under the
U.S. Bankruptcy Code, (4) file a petition seeking to take
advantage of any law relating to the bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the U.S. Bankruptcy
Code, or (6) take any action for the purpose of effecting any
of the foregoing;
(iii) A proceeding or case shall be commenced, without the
application of consent of IFN, in any court of competent
jurisdiction, seeking (1) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment
of its debts, (2) the appointment of a trustee, receiver,
custodian, liquidator or the like of IFN or of all or any
substantial part of its assets, or (3) similar relief in
respect of any law relating to bankruptcy; insolvency,
reorganization, winding-up, or composition or readjustment of
debts, which is not dismissed within 90 days thereafter;
(iv) IFN shall fail to perform any material obligation under this
Agreement (other than the obligation to pay license fees) and
such failure shall continue for a period of 30 days following
written notice from FPC to IFN specifying such
nonperformance, provided that if such failure cannot be cured
within such 30-day period with the exercise of reasonable due
diligence, FPC shall grant a reasonable additional period of
time in which to cure such failure, so long as IFN is acting
promptly and diligently to cure;
(v) IFN shall fail or refuse to remit to FPC within thirty (30)
days of written notice following the due date thereof, any
license fees then due and payable, or fail or refuse to remit
to FPC any disputed license fees in accordance with Section
20A; or
(vi) Except as hereinafter provided in Section 22, IFN shall cause
or permit the encumbrance of all or any part of its interest
in this Agreement or the IFN Fibers, without the prior
written consent of FPC; provided that nothing herein shall be
construed to require FPC to give consent to such encumbrance
or to prevent FPC from withholding its consent to such
encumbrance for any or no reason.
B. An Event of Default by FPC shall exist if any one or more of the
following events shall occur and be continuing past any applicable
cure period;
(i) FPC shall (1) apply for or consent to the appointment of, or
the taking of possession by a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (2) make a general assignment for the benefit of
its creditors, (3) commence a voluntary case under the U.S.
Bankruptcy Code, (4) file a petition
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
10
seeking to take advantage of any law relating to the
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (5) fail to
controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in
an involuntary case under the U.S. Bankruptcy Code, or (6)
take any action for the purpose of effecting any of the
foregoing;
(ii) A proceeding or case shall be commenced, without the
application or consent of FPC, in any court of competent
jurisdiction, seeking (1) its liquidation, reorganization,
dissolution or winding-up, or the composition or
readjustment of its debts, (2) the appointment of a
trustee, receiver, custodian liquidator or the like of FPC
or of all or any substantial part of its assets, or (3)
similar relief in respect of FPC under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, which is not
dismissed within 90 days thereafter;
(iii) FPC shall fail to perform any material obligation under
this Agreement and such failure shall continue for a
period of 30 days following written notice from IFN to FPC
specifying such nonperformance, provided that if such
failure cannot be cured within such 30-day period with the
exercise of reasonable due diligence, IFN shall grant a
reasonable additional period of time in which to cure such
failure; or
(iv) An interruption or reduction in the use or quantity of the
IFN Fibers by IFN that continues for a period of 30 days
following written notice from IFN to FPC of the
interruption or reduction in use, provided that if use of
the IFN Fibers are not restored within such 30-day period
with the exercise of reasonable due diligence, IFN shall
grant a reasonable additional period of time in which to
restore use of the IFN Fibers.
12.2 Rights Upon Default
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A. Upon the occurrence of an Event of Default by IFN, FPC shall be
entitled to immediate and exclusive possession, use and control of the
IFN Fibers and may forthwith terminate this Agreement by written
notice to IFN. Upon the occurrence of an Event of Default IFN's right
to possession and use of the IFN Fibers shall terminate and FPC shall
have the right to repossess the IFN Fibers by any lawful means,
without demand or notice of any kind to IFN except as may be required
by law, and without terminating this Agreement or the lease created
hereby.
FPC may declare immediately due and payable all the remaining
installments of the license fee for the remainder of the term hereof
of the applicable Exhibit A and such amount, less the fair licensable
value of the IFN Fibers for the remainder of the terra, shall be
construed as liquidated damages and shall constitute a debt provable
in bankruptcy or receivership. In computing such liquidated damages,
there shall be added to such deficiency the reasonable expenses as FPC
may incur in connection with relicensing the IFN Fibers. The failure
of FPC to relicense the IFN Fibers or any part thereof after
recovering of possession shall not release or affect IFN's liability
for damages. FPC shall in no event be liable in any way whatsoever for
failure to relicense the IFN Fibers, on in the event that the IFN
Fibers is relicensed, for failure to collect the license fee under
such relicensing.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER
11
B. Upon the occurrence of an Event of Default by FPC, IFN shall be
entitled to terminate this Agreement by written notice to FPC, and
recover any prepaid amounts.
C. The right to terminate this Agreement shall be in addition to, and not
in substitution for, any other rights that a party may have as a
result of an Event of Default by the other party. In the exercise of
its right of termination as herein provided, FPC may, at its option,
elect to terminate this Agreement in its entirety or with respect to
the particular IFN Fibers to which IFN may be in default of its
obligations under this Agreement
13. Remedies. FPC and IFN may xxx from time to time to recover any amounts due
--------
or enforce any rights under this Agreement, and no suit or recovery
shall bar any subsequent action brought for any amount not theretofore
reduced to judgment in favor of FPC or IFN as the case may be. Except
as otherwise provided by law, no repossession of the IFN Fibers by FPC
shall be construed as an election by FPC to terminate this Agreement
unless a written notice of such intention is given by FPC to IFN and
no receipt of moneys by FPC from IFN shall reinstate this Agreement or
IFN right of possession. All remedies provided in this Agreement are
cumulative and exclusive and are in addition to any remedies available
at law or in equity. All remedies may be exercised and enforced
concurrently or sequentially as often as occasion therefore may arise.
14. Indemnification and Insurance.
-----------------------------
A. IFN shall indemnify and save FPC and its agents, contractors,
successors and assigns harmless from and against, and shall reimburse
FPC for all liabilities, obligations, damages, fines, penalties,
claims, demands, costs, judgments and expenses, including but not
limited to reasonable attorneys' fees, which may be imposed upon or
incurred or paid by or asserted against FPC by reason or in connection
with any negligent act or omission by IFN or any of its agents or
employees or any failure by IFN to perform or comply with any of the
provisions of this Agreement
IFN shall further require as a condition precedent to the sublease or
assignment of IFN Fibers to others that all such others agree to
indemnify and save FPC harmless through incorporation of the
provisions of Section 14A into its respective agreements for sublease
or assignment of IFN Fibers to such others.
B. FPC shall indemnify and save IFN and its AGENTS, contractors,
successors and assigns harmless from and against, and shall reimburse
IFN for all liabilities, obligations, damages, fines, penalties,
claims, demands, costs, judgments and expenses, including but not
limited to reasonable attorneys' fees, which may be imposed upon or
incurred by or asserted against IFN by reason of or in connection with
any negligent act or omission by FPC or any of its agents or employees
or any failure by FPC to perform or comply with any of the provisions
of this Agreement
C. The party entitled to indemnification hereunder (the Indemnified
Party) shall notify the other party hereto (the Indemnifying Party) in
writing of the liability, obligation, damage, fine, penalty, claim,
demand, cost judgment or expense for which such indemnity allegedly
applies. The Indemnifying Party may undertake the defense of any such
claim or action and permit the Indemnified Party to participate
therein at the Indemnified Party's
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
12
own expense. The settlement of any such claim or action by an
Indemnified Party without the Indemnifying Party's prior written
consent which consent shall not be unreasonably withheld or delayed
shall release the Indemnifying Party from its obligations hereunder
with respect to such claim or action so settled.
D. Notwithstanding any other provision of this Agreement, neither party
hereto shall be liable to the other for any special, indirect or
consequential damages or lost profits to anyone arising out of this
Agreement or the performance or nonperformance of any activity
pursuant to this Agreement even if such party has been informed of the
possibility of such damages.
E. Throughout the term of this Agreement, the parties hereto shall, at
their sole cost and expense, maintain Worker's Compensation Insurance
in the amounts required by statute, General Liability Insurance of not
less than $5,000,000 combined single limit (CSL) and Automobile
Liability Insurance, which shall include all owned, non-owned, and
hired VEHICLES, of not less than $1,000,000 combined single limit
(CSL), with Broad Form endorsement providing blanket contractual
liability coverage and name one another as an additional insured on
the policies (excluding the Worker's Compensation policy), and agree
to waive all rights of subrogation.
The parties shall furnish proof of insurance coverage to each other
upon request, however, this requirement shall not preclude either
party from maintaining any required insurance coverage in whole or in
part through self-insurance if it is the party's practice to provide
such coverage or similar coverage applicable to other aspects of its
business through self-insurance.
15. Publicity. Neither party may use the name, trademark, service xxxx or logo
---------
of the other party in any advertising, news releases or any other manner
without the written consent of such party.
16. Access and Security.
---------- --------
A. IFN agrees, upon reasonable request (considered to be 5 business days
notice for a request not Outage-related), to allow FPC direct ingress
and egress to IFN's Premises at such times as may be required for FPC
to perform any appropriate testing, maintenance and repair of the
Cable located at IFN's Premises. IFN may require that a representative
of IFN accompany any representatives of FPC having access to IFN's
Premises. Employees and agents of FPC shall, while on the premises of
IFN, comply with all rules and regulations, including without
limitation, security requirements and, where required by government
regulations, receipt of satisfactory governmental clearances. IFN
shall have the right to notify FPC that certain FPC or FPC designee
employees are excluded if, in the reasonable judgment of IFN, the
exclusion of such employees is necessary for the proper security and
maintenance of IFN's facilities.
B. IFN and IFN's designee's shall have the right to visit any facilities
of FPC over, under, on, upon or in which the Cable is installed, upon
reasonable prior oral or written notice to FPC (considered to be 5
business days notice for a request not Outage-related), provided that
FPC may require that a representative of FPC accompany any
representatives of IFN or of a IFN designee making a visit. Such
visitation right shall include the right to inspect the
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
13
Cable and to review performance or service data, and other documents
used in conjunction with this Agreement. Employees and agents of IFN
or of a IFN designee shall, while on the premises of FPC, comply with
all rules and regulations including, without limitation, security
requirements and, where required by government regulations, receipt of
satisfactory governmental clearances. FPC shall have the right to
notify IFN that certain IFN or IFN designee employees are excluded if,
in the reasonable judgment of FPC, the exclusion of such employees is
necessary for the proper security and maintenance of FPC's facilities.
C. IFN shall be granted 24-hour access to IFN Premises. FPC may require
that a representative of FPC accompany any representatives of IFN or
of an IFN designee making a visit. Employees and agents of IFN or of a
IFN designee shall, while on the premises of FPC, comply with all
rules and regulations including, without limitation, security
requirements and, where required by government regulations, receipt of
satisfactory governmental clearances. FPC shall have the right to
notify IFN that certain IFN or IFN designee employees are excluded if,
in the reasonable judgment of FPC, the exclusion of such employees is
necessary for the proper security and maintenance of FPC's facilities.
17. Confidentiality. Each party agrees to provide to the other party such
---------------
information as shall be reasonably necessary to permit performance of
their respective obligations hereunder. Each party hereto shall, in
accordance with the provisions of this Section, at or prior to the time of
providing information, identify in writing as confidential all Confidential
Information. No information which is provided by either party to the other
shall be considered Confidential Information unless it is specifically so
identified at or before the time it is provided to such other party.
Neither party hereto will, without the prior written consent of the party
providing such Confidential Information,
l. use any portion of such Confidential Information for any purpose
other than performance pursuant to this Agreement, or
2. disclose any portion of such Confidential Information to any
persons or entities other than the AGENTS, officers and employees
of such party who reasonably need to have access to the
Confidential Information for purpose of performance under this
Agreement and who are bound by either appropriate confidentiality
agreements (if agents) or commitments consistent with those
utilized by such party in protecting its own Confidential
Information (if officers or employees).
Confidential Information shall remain the property of the disclosing party
and shall be returned to the disclosing party or shall be destroyed upon
termination of the performance pursuant to this Agreement on the basis of
which such Confidential Information was provided. Each recipient party
agrees to safeguard Confidential Information utilizing the same degree of
care utilized by such recipient party in protecting its own Confidential
Information. If the receiving party is compelled to disclose Confidential
Information through lawful process in judicial or administrative
proceeding, the receiving party shall give notice within a reasonable time
to permit the disclosing party the opportunity to seek suitable protective
arrangements before the Confidential Information is disclosed, and the
receiving party shall cooperate fully with the disclosing party's efforts
to obtain such protective arrangements. Confidential Information shall not
apply to information which
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
14
a. is or becomes publicly available through no fault of the
disclosing party,
b. is In the disclosing party's possession at the time of execution
of this Agreement and not obtained from the other party,
c. is developed by the disclosing party independently outside the
scope of any agreement with the other party,
d. is obtained lawfully and in good faith by the disclosing party
from a third party who did not obtain it from the other party.
The provisions of this Section shall survive the termination of this
Agreement for a period of three (3) years.
18. Compliance with Laws. Each party to this Agreement shall comply, at its
--------------------
own expense, with all applicable laws, statutes, regulations, rules,
ordinances, orders, injunctions, writs, decrees or awards of any government
or political subdivision thereof, or any agency, authority, bureau,
commission, department or instrumentality thereof, or any court tribunal or
arbitrator in all applicable, material respects in connection with all
activities and all performance under or in connection with this Agreement.
19. Force Majeure. Notwithstanding any provision of this Agreement, the
-------------
performance of the obligations set forth in this Agreement other than
obligations to pay money, shall be suspended or excused in the event that
such performance is adversely affected by an event of Force Majeure or its
adverse effects. Force Majeure shall mean the occurrence of any act or
event that has an adverse effect on the engineering, design, acquisition,
construction, installation, operation or maintenance of all or any portion
of the Cable, the IFN Fibers or the FPC Fibers, if such act or event is
beyond the reasonable control of the party relying thereon as justification
for not performing an obligation or complying with any condition required
of such party pursuant to this Agreement. Each party shall exhaust its best
commercial efforts to remedy an event or act of Force Majeure. Such acts or
events include, but are not limited to, the following:
A. Acts of God, landslides, sink holes, lightning, hurricanes,
earthquakes, fires, explosions, floods, acts of a public enemy, wars,
blockades, insurrections, riot, or civil disturbances;
B. Labor disputes, strikes, work slowdown, or work stoppages;
C. Orders, writs, decrees or judgments of any federal, state, or local
court, administrative agency, or governmental body, so long as not the
result of wanton or willful action or Inaction of the party relying
thereon; provided however, the contesting in good faith by such party
of any such order or judgment, or the good faith failure by such party
to contest any such order or judgment, shall not constitute or be
construed to constitute a wanton or WILLFUL action or inaction of such
party;
D. The adoption of or change after the date of the execution of this
Agreement in any federal, state, or local laws, rules, regulations,
ordinances, permits, or licenses, or changes in the interpretation of
such laws, rules, regulations, ordinances, permits, or licenses by a
court or public agency having jurisdiction;
E. The failure of any subcontractor or any supplier to furnish labor,
services, materials, or equipment in accordance with its contractual
obligations, together with the inability of the
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
15
party relying thereon to obtain reasonable substitute performance
within a reasonable time, provided, that in any case where such
subcontractor or supplier is an Affiliate of the party seeking to rely
upon such failure as an event of Force Majeure, such failure shall be
deemed an event of Force Majeure only to the extent that such failure
is itself due to an event of Force Majeure or its adverse effect; or
F. A defect in manufactured equipment or manufactured components,
provided that in any use where such equipment or component was
manufactured by the party (or an Affiliate of such party) seeking to
rely upon such defect as an event of Force Majeure, such defect shall
be deemed an event of Force Majeure only to the extent that the defect
was caused by an independent event of Force Majeure.
20. Dispute Resolution Procedure.
----------------------------
A. In order to dispute any portion of an FPC invoice, IFN shall notify
FPC in writing of the amount of the disputed charge and the nature of
the dispute within thirty (30) days of the date of the invoice. The
undisputed portion of the invoice shall remain due as rendered. FPC
will then evaluate the dispute within sixty (60) days, and notify IFN
of its evaluation. If the dispute is resolved in favor of FPC, IFN
shall pay FPC the disputed amount due within fifteen (15) days of
receiving notice from FPC. Otherwise, no action will be required.
B. Any dispute arising under this Agreement shall be subject to non-
binding mediation prior to the initiation of judicial proceedings. The
disputing parties shall attempt in good faith to resolve their dispute
in accordance with the procedures and timetable established by the
mediator. If a resolution of the dispute is not reached by the 30th
day after the appointment of the mediator, or such later date as may
be agreed to by the parties, the mediator shall promptly provide the
disputing parties with a written, confidential, nonbinding
recommendation on resolution of the dispute, including the mediator's
assessment of the merits of the principal positions being advanced by
each of the disputing parties. At a time and place specified by the
mediator after delivery of the foregoing recommendation, the disputing
parties shall meet in a good faith attempt to resolve the dispute in
light of the mediator's recommendation. Each disputing party shall be
represented at the meeting by a person with authority to settle the
dispute, along with such other persons as each disputing party shall
deem appropriate. If the disputing parties are unable to resolve the
dispute at or in connection with the meeting, then; (1) any disputing
party may commence such judicial proceedings as may be appropriate;
and (2) the recommendation of the mediator shall have no further force
or effect, and shall not be admissible for any purpose, in any
subsequent judicial proceeding. The costs of the time, expenses, and
other charges of the mediator and of the mediation process shall be
borne by the parties to the dispute, with each side in a mediated
matter bearing one-half of such costs. Each party shall bear its own
costs and attorneys' fees incurred in connection with any mediation
under this Agreement.
C. Unless otherwise agreed in writing or prohibited by applicable law,
the parties shall continue to provide service, honor all other
commitments under this Agreement and continue to make payments in
accordance with this Agreement during the course of any dispute
resolution and during the pendency of any arbitration proceeding or
action at law or in equity relating hereto.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
16
21. Conditions Precedent. All obligations of the parities hereto are subject
--------------------
to the condition that all requisite governmental and regulatory approvals
of the execution, delivery and performance of this Agreement shall have
been received. Each party agrees to exert its best commercial efforts to
obtain all such approvals applicable to its execution, delivery and
performance of this Agreement as promptly as reasonably practicable and, in
furtherance thereof, to modify or amend this Agreement in such particulars
as may be required to obtain such approval; provided that if any such
required modification or amendment to this Agreement would, in the good
faith judgment of either party, render the benefit to such party of this
Agreement as a whole uneconomical in light of the obligations of such party
under this Agreement as a whole, then FPC and IFN shall negotiate in good
faith in an effort to restore, insofar as possible, the economic benefits
of the IFN Fibers to IFN and the economic benefits of the FPC Fibers and
the license fee hereunder to FPC provided further, that in the event that
the parties in good faith are unable to agree to terms and conditions which
in their good faith judgment will reasonably retain or restore the economic
benefits of the IFN Fibers to IFN and the economic benefits of the FPC
Fibers and the license fee hereunder to FPC, then this Agreement shall
terminate, as well as all obligations of the parties hereunder other than
l. payment obligations which have accrued prior to such terminations
2. indemnity obligations resulting from events which occurred prior
to such termination, and
3. obligations which pursuant to an express provision of this
Agreement are to survive any termination of this Agreement
IFN shall furnish to FPC a copy of the Certification issued by the Florida
Public Service Commission authoring the IFN to provide fiber optic
telecommunications services through the Cable pursuant to this Agreement.
Said Certificate shall be attached hereto, and by reference, shall be
incorporated into this Agreement.
22. General.
-------
A. Assignment. Neither party hereto shall assign this Agreement, in
----------
whole or in part, whether by operation of law or otherwise, without
the prior written consent of the other party; provided, however, that
either party may assign this Agreement to an Affiliate upon notice to
the other party. It shall be a condition precedent to any such
permitted assignment that the assignee shall execute a counterpart of
this Agreement, thereby becoming a party to this Agreement and
agreeing to be bound by all of the terms and provisions hereof. In the
event of an assignment to a third party, consent from the other party
may not be unreasonably withheld. Not withstanding anything in this
Agreement, IFN shall have the explicit right to assign this Agreement
to a financing institution for collateral purposes and FPC shall
negotiate in good faith a commercially reasonable subordination and an
intercreditor agreement with such lender.
B. Expenses. Except for cost and expenses specifically assumed by a
--------
party under this Agreement, each party hereto shall pay its own
expenses incident to this Agreement (including without limitation
amendments hereto) and the transactions contemplated hereunder
including without limitation all legal and accounting fees and
disbursements.
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
17
C. Amendment. This Agreement shall not be amended, altered or modified
---------
except by an instrument in writing duly executed by the parties.
D. Binding Effect; Limitation of Benefits. This Agreement shall be
--------------------------------------
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. 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, undertaking, 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
or permitted assigns.
E. Notices. Unless otherwise provided in this Agreement all notices,
-------
demands, requests, reports, approvals or other communications which
may be or are required to be given, served or sent pursuant to this
Agreement shall be in writing and shall be hand delivered, mailed by
first class, registered or certified mail, return receipt requested,
postage prepaid, delivered by overnight courier with proof of delivery
or transmitted by Fax followed by certified mail, addressed as
follows:
To FPC Florida Power Corporation
0000 00xx Xxxxxx Xxxxx, XXX X0X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Manager, Project Development
Information Technology Department
To IFN Interstate FiberNet
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Each party may designate by notice in writing a new address for itself
to which any notice, demand, request, report, approval or
communication may thereafter be so given, served or sent. Each notice,
demand, request, report, approval or communication which shall be sent
in the manner described above, shall be deemed sufficiently given,
served, sent or received for all purposes at such time as it is
delivered to the addressee (with the return receipt or the delivery
receipt being deemed evidence of such a delivery) or at such time as
delivery is refused by the addressee upon presentation.
F. Severability. 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; provided
that if any such ineffectiveness or unenforceability of any provision
of this Agreement in the good faith judgment of either party; renders
the benefits to such party of this Agreement as a whole uneconomical
in light of the obligations of such party under this Agreement as a
whole, then FPC and IFN shall negotiate in good faith in an effort to
restore insofar as possible the economic benefits of the IFN Fibers to
IFN and the economic benefits of the FPC Fibers and the license fee
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
18
hereunder to FPC provided further, that in the event that the
parties in good faith are unable to agree to terms and conditions
which in their good faith judgment will reasonably retain or restore
the economic benefits of the IFN Fibers to IFN and the economic
benefits of the FPC Fibers to FPC, then this Agreement shall
terminate, as well as all obligations of the parties hereunder other
than
l. payment obligations which have accrued prior to such termination,
2. indemnity obligations resulting from events which occurred prior
to such termination, and
3. obligations which pursuant to an express provision of this
Agreement are to survive any termination of this Agreement.
In the event of a termination of this Agreement pursuant to this
Section, FPC and IFN shall negotiate in good faith, given the
circumstances existing at the time of termination, for an appropriate
transition period for the termination.
G. Independent Contractors. In all matters pertaining to this Agreement,
-----------------------
the relationship of FPC and IFN shall be that of independent
contractors, and neither FPC nor IFN shall make any representations or
warranties that their relationship is other than that of independent
contractors. This Agreement is not intended to create nor shall it be
construed to create any partnership, joint venture, employment or
agency relationship between IFN and FPC and no party hereto shall have
the power to bind or obligate any other party. No party hereto shall
be liable for the payment or performance of any DEBTS, obligations, or
liabilities of the other party, unless expressly assumed in writing
herein or otherwise. Each party retains full control over the
employment, direction, compensation and discharge of its employees,
and will be solely responsible for all compensation of such employees,
including without limitation social security, withholding and workers
compensation responsibilities.
H. Exercise of Right. No failure or delay on the part of either party
-----------------
hereto in exercising any right power or privilege hereunder and no
course of dealing between the parties shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
I. Additional Actions and Documents. Each of the parties hereto hereby
--------------------------------
agrees to take or cause to be taken such further actions, to execute,
acknowledge, deliver and file or cause to be executed, acknowledged,
delivered and filed such further documents and instruments, and to use
its best efforts to obtain such consents, as may be necessary or as
may be reasonably requested in order to fully effectuate the purposes,
terms and conditions of this Agreement, whether at or after the
execution of this Agreement.
J. Survival. It is the express intention and agreement of the parties
--------
hereto that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the
execution and delivery of this Agreement. No provision of this
Agreement, no covenant, agreement, statement, representation, warranty
or indemnity shall apply or otherwise continue in effect with respect
to any portion of the Cable located
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
19
or installed on any Route Segment as to which the term of this
Agreement has expired; provided that any payment obligation which has
accrued prior to such expiration and any indemnity obligation
resulting from events which occurred prior to such expiration shall
continue in effect until satisfied in full in accordance with the
terms hereof.
K. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the transactions contemplated
herein, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for
herein.
L. Headings. Article and section headings contained in this Agreement are
--------
inserted for convenience of reference only, shall not be deemed to be
a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the
provisions hereof.
M. Governing Law. The validity, interpretation and performance of this
--------- ---
Agreement and each of its provisions shall be governed by the laws of
the State of Florida, excluding the conflict of law provisions
thereof.
N. Forum for Mediation or Litigation. In the event that mediation or
---------------------------------
litigation is required in order to resolve any dispute or disagreement
connected with this Agreement, it is agreed by and between the parties
hereto that venue and jurisdiction for any such mediation or
litigation shall be in Pinellas County, Florida, unless otherwise
required by law.
23. Exhibits. The following Exhibits shall be attached to and incorporated
--------
within this Agreement as necessary. In the event of any inconsistency
between the terms contained in the Exhibits and the body of the Agreement,
the Exhibits shall control. Provided, however, the Exhibits and the body of
the Agreement are intended to supplement each other to the greatest degree
possible.
Exhibit A: Telecommunications Company Fiber Rates
Exhibit B: Make-Ready Costs
Exhibit C: Fiber Optic Cable Specifications
Exhibit D: Telecommunication Company Options
Exhibit E: Regeneration Facility Locations, Specifications, & Shared
Costs
Exhibit F: FPC & IFN Contact Lists and Escalation Procedures
Exhibit G: Capacity Purchase Rates
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
INTERSTATE FIBERNET
/s/ Xxxxxxxx Xxxxx
-------------------------
Witness
By:/s/ Xxxx Xxxxxxx
------------------------------------------
/s/ Xxxxxx Xxxxxx
-------------------------
Witness
Title: VP/CFO Managing Partner
--------------------------------------
Date: 11-15-96
---------------------------------------
FLORIDA POWER CORPORATION
/s/ Xxxxx X. XxXxxxx
-------------------------
Witness
By:/s/ [SIGNATURE ILLEGIBLE]
------------------------------------------
/s/ [SIGNATURE ILLEGIBLE]
-------------------------
Witness
Title: Vice President, Information Technology
--------------------------------------
Date: 11/25/96
--------------------------------------
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
21
EXHIBIT A
TELECOMMUNICATIONS COMPANY FIBER RATES
***INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
Upon acceptance by the parties hereto, this Exhibit A shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional
Telecommunications Company Fiber may be added to this Exhibit at the request of
the Telecommunications Company and with FPC's concurrence pursuant to Section 4
of the Agreement.
-------------------------------------------------------------------------------------------------------------------------------
A. Telecommunications Company Fiber/Route Segment(s) Quantity of Fiber Monthly Rate
-------------------------------------------------------------------------------------------------------------------------------
[______________________________] [______] [________]
ON-NETWORK ROUTE: [__________________]
OFF-NETWORK ROUTES: [__________________]
-------------------------------------------------------------------------------------------------------------------------------
B. Anticipated Fiber Acceptance Date Term of Service Service Ending Date
-------------------------------------------------------------------------------------------------------------------------------
[_________] [______] [_________]
-------------------------------------------------------------------------------------------------------------------------------
C. FPC Department Routing for Approval Acceptance of Terms & Conditions Above
-------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------- -------------------------------- ------------------------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
----------------------------- ---------------------------------------
Approved By Date
_________________________________________ Date: 11-15-96 Date: 11/25/96
------------------------------ ----------------------------------------
CONFIDENTIAL & PROPRIETARY INFORMATION [STAMP OF FLORIDA
PROPERTY OF FLORIDA POWER CORPORATION POWER CORP.]
EXHIBIT A
TELECOMMUNICATIONS COMPANY FIBER RATES
***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.***
Upon acceptance by the parties hereto, this Exhibit A shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional
Telecommunications Company Fiber may be added to this Exhibit at the request of
the Telecommunications Company and with FPC's concurrence pursuant to Section 4
of the Agreement.
-------------------------------------------------------------------------------------------------------------------------------
A. Telecommunications Company Fiber/Route Segment(s) Quantity of Fiber Monthly Rate
-------------------------------------------------------------------------------------------------------------------------------
[__________________________] [__________] [__________]
ON-NETWORK ROUTE: [__________________________________________________________]
OFF-NETWORK ROUTES: [__________________________________________________________]
-------------------------------------------------------------------------------------------------------------------------------
B. Anticipated Fiber Acceptance Date Term of Service Service Ending Date
-------------------------------------------------------------------------------------------------------------------------------
[__________] [__________] [__________]
-------------------------------------------------------------------------------------------------------------------------------
C. FPC Department Routing for Approval Acceptance of Terms & Conditions Above
-------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------- -------------------------------- ------------------------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
----------------------------- ---------------------------------------
Approved By Date
_________________________________________ Date: 11-15-96 Date: 11/25/96
------------------------------ ----------------------------------------
[STAMP OF FLORIDA POWER CORP.]
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT B
MAKE-READY COSTS
*** 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.***
Upon acceptance by the parties hereto, this Exhibit B shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations with regard to make
ready costs associated with and as set forth below in accordance with the terms
and provisions of said Agreement. Additional costs may be added to this Exhibit
as a result of changes in project scope or specifications requested by the
Telecommunications Company and agreed to by FPC pursuant to Section 4 of the
Agreement.
-------------------------------------------------------------------------------------------------------------------------------
A. MAKE-READY COST CALCULATIONS
-------------------------------------------------------------------------------------------------------------------------------
[_________________________________________________________________]
-------------------------------------------------------------------------------------------------------------------------------
B. Anticipated Start Date Anticipated Completion Date
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
C. FPC Department Routing for Approval Acceptance of Terms & Conditions Above
-------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------- -------------------------------- ------------------------------------------
Title: VP/CFO Managing Title: Vice President, Information Technology
----------------------------- ---------------------------------------
Approved By Date
-------------------------------------- Date: 11-15-96 Date: 11/25/96
----------------------------- ----------------------------------------
CONFIDENTIAL & PROPRIETARY INFORMATION [STAMP OF FLORIDA
PROPERTY OF FLORIDA POWER CORPORATION POWER CORP.]
EXHIBIT B
MAKE-READY COSTS
***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.***
Upon acceptance by the parties hereto, this Exhibit B shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations with regard to make
ready costs associated with and as set forth below in accordance with the terms
and provisions of said Agreement. Additional costs only be added to this Exhibit
as a result of changes in project scope or specifications requested by the
Telecommunications Company and agreed to by FPC pursuant to Section 4 of the
Agreement.
-----------------------------------------------------------------------------
A. Make-Ready Cost Calculations
-----------------------------------------------------------------------------
[_____________________________________________________________].
-----------------------------------------------------------------------------
B. Anticipated Start Date Anticipated Completion Date
-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
C. FPC Department Routing for Approval Acceptance of Terms & Conditions Above
-------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------- -------------------------------- ------------------------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
----------------------------- ---------------------------------------
Approved By Date
-------------------------------------- Date: 11-15-96 Date: 11/25/96
------------------------------ ----------------------------------------
[STAMP OF FLORIDA POWER CORP.]
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT C
Fiber Optic Cable Specifications
***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.***
Upon acceptance by the parties hereto, this Exhibit C shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional Fiber
Optic Cable Specifications may be added to this Exhibit at the request of the
Telecommunications Company and with FPC's concurrence pursuant to the Agreement.
Optical Fibers:
[__________________________________________________________________________
____________________________________]
Optical Span Attenuation (Includes Cable and Splicing):
[________________________________________________________]
[________________________________________________________]
Span Specifications:
[__________________________________________________________________________
_____]
Discontinuities (known as steps, splices, or attenuation non-uniformities)
shall be measured with an optical time domain reflectometer to determined
the loss of the localized attenuation.
[__________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
______________]
[__________________________________________________________________________
______________]
(Exhibit C, Page 1 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT C (cont.)
Fiber Optic Cable Specifications
General Construction:
[______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
______________________________].
[_____________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
________________________________________].
[________________________________________________________________________
__________________________________________________________________________
__________________________________________].
[____________________________________________________________________
___________________________________________].
---------------------------------------------------------------------------------------------------------
FPC Department Routing for Approval Acceptance of Terms & Conditions Above
---------------------------------------------------------------------------------------------------------
Interstate FiberNet
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: VP/CFO Managing Ptr.
-----------------------------
Date: 11-15-96
-----------------------------
Florida Power Corporation
Approved By Date
By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------------
/s/ [SIGNATURE ILLEGIBLE] 11/25/96
--------------------------------------------------
Title: Vice President Information Technology
---------------------------------
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96
--------------------------------------------------
Date: 11/25/96
---------------------------------
(Exhibit C, Page 2 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT D
Telecommunications Company Options
***INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED PURSUANT TO REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.***
Upon acceptance by the parties hereto, this Exhibit D shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional
Telecommunication Company Options may be added to this Exhibit at the request of
the Telecommunications Company and with FPC's concurrence pursuant to Section 4
of the Agreement.
[________________]
------------------
[_________________________________________________________________________
________________________________]
-----------------------------------------------------------------------------------------------------------
[________________________________] [_______________] [___________]
-----------------------------------------------------------------------------------------------------------
[_______________________________]
[_____________________________________] [_______] [_________]
[_____________________________________] [_______] [_________]
[_____________________________________] [_______] [_________]
[_____________________________________] [_______] [_________]
[_______________________]
-------------------------
[________________________________________________________________________
________________________________________________________________________]
-----------------------------------------------------------------------------------------------------------
[______________] [_____________] [_______________] [___________]
-----------------------------------------------------------------------------------------------------------
[_______________________________] [_______________] [_______] [_________]
[_______________________________] [_______________] [_______] [_________]
[_______________________________] [_______________] [_______] [_________]
[__________________________________] [_______________] [_______] [_________]
[__________________________________] [_______________] [_______] [_________]
[__________________________________] [_______________] [_______] [_________]
(Exhibit D, Page 1 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT D (CONT.)
TELECOMMUNICATIONS COMPANY OPTIONS
C. APPROVALS
------------
----------------------------------------------------------------------------------------------------------------------------------
FPC Department Routing for Approval Acceptance of Terms & Conditions Above
----------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 12/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------- -------------------------------- --------------------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
---------------------------- --------------------------------------
Approved By Date
_________________________________________ Date: 11-15-96 Date: 11/25/96
------------------------------ ------------------------------------
[STAMP OF FLORIDA POWER CORP.]
(Exhibit D, Page 2 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT D
TELECOMMUNICATIONS COMPANY OPTIONS
***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.***
Upon acceptance by the parties hereto, this Exhibit D shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional
Telecommunication Company Options may be added to this Exhibit at the request of
Telecommunications Company and with FPC's concurrence pursuant to Section 4 of
the Agreement.
[________________]
------------------
[________________]:
---------------------------------------------------------------------------------------------------------------------------
[________________] [________________] [________________]
---------------------------------------------------------------------------------------------------------------------------
[______________________________]
[______________________________] [______] [______]
[______________________________] [______] [______]
[______________________________] [______] [______]
[______________________________] [______] [______]
[________________]
------------------
[________________]:
---------------------------------------------------------------------------------------------------------------------------
[________________] [________________] [________________] [________________]
---------------------------------------------------------------------------------------------------------------------------
[______________________________] [______________] [_______] [_______]
[______________________________] [______________] [_______] [_______]
[______________________________] [______________] [_______] [_______]
(Exhibit D, Page 1 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT D (CONT.)
TELECOMMUNICATIONS COMPANY OPTIONS
C. APPROVALS
------------
----------------------------------------------------------------------------------------------------------------------------------
FPC Department Routing for Approval Acceptance of Terms & Conditions Above
----------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96 By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------- -------------------------------- --------------------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
-------------------- --------------------------------------
Approved By Date
----------------------------------------- Date: 11-15-96 Date: 11/25/96
------------------------------ ------------------------------------
(Exhibit D, Page 2 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT E
REGENERATION FACILITY LOCATIONS, SPECIFICATIONS, & SHARED COSTS
***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.***
Upon acceptance by the parties hereto, this Exhibit E shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional
Regeneration Facility Locations, Specifications, & Shared Costs may be added to
this Exhibit at the request of the Telecommunications Company and with FPC's
concurrence pursuant to Section 4 of the Agreement.
A. -----------------------------------------------------------------------------
Regeneration Facility Locations
-----------------------------------------------------------------------------
[_________________________________________________________________________
______________________________________________________________
___________________________________]
[______________________________]
B. -----------------------------------------------------------------------------
Regeneration Facility Specifications
-----------------------------------------------------------------------------
[__________]
[________________________________________________________________________]
[_____________________________________]
[_______________________________________________]
[__________________________________________________________________________
__]
[________________________________]
[__________________________________________]
[__________________________________________________________________________
_________]
[_____________________________________]
[_________________________________________________________________________]
[__________________________________________________________________________
____________________________________________________________]
[___________________________________]
[________________________]
[____________________________________________________________]
[__________________________________________________________________________
________________________________________]
(Exhibit E, Page 1 of 3)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT E (CONT.)
REGENERATION FACILITY LOCATIONS, SPECIFICATIONS, & SHARED COSTS
[_____]
[_____________________________________________________________________________
____________________________________]
[____________________]
[_____________________________________________]
[____________________________________________________________________
______________________________________]
[______________________________________________________________________]
___________________________________________]
[_________________]
[_____________________________________________________________________________
______________________________]
[___________________________________________________________________________
_______________]
-------------------------------------------------------------------------------------------------------------------
C. REGENERATION FACILITY OPTIONS
-------------------------------------------------------------------------------------------------------------------
[______] [______]
[_______________________________________] [_______]
[__________________________________________] [________]
[____________________________] [___________________________]
[__________________________] [___________________________]
[________________________________________________] [____________]
[________________________________________] [________________________________]
[_______________________________] [_________________________________________]
[________]
[______________________________________________] [________]
[________________________________________________________]
[____________________________________] [________]
[______________________________] [________]
(Exhibit E, Page 2 of 3)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT E (CONT.)
REGENERATION FACILITY LOCATIONS, SPECIFICATIONS, & SHARED COSTS
[_____________________________________________________]
[____] [______] [_____]
---- ------ -----
[____________] [_______________________] [____________]
[____________] [__________________________] [____________]
[_____________] [_______]
-----------------------------------------------------------------------------
D. Total Customer Contribution
-----------------------------------------------------------------------------
[_________] [________]
[_________] [________]
[__________________] [________]
-----------------------------------------------------------------------------
E. FPC Department Routing for Approval
-----------------------------------------------------------------------------
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/28/96
------------------------------------
Approved By Date
/s/ [SIGNATURE ILLEGIBLE] 11/25/96
------------------------------------
--------------------------------------------------------------------------------
Acceptance of Terms & Conditions Above
--------------------------------------------------------------------------------
Interstate FiberNet Florida Power Corporation
By: /s/ Xxxx Xxxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------- --------------------------
Title: VP/CFO Managing Ptr. Title: Vice President, Information Technology
----------------------- ---------------------------------------
Date: 11-15 Date: 11/25/96
------------------------ ----------------------------------------
(Exhibit E, Page 3 of 3)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT F
FPC & IFN Contact Lists and Escalation Procedures
Upon acceptance by the parties hereto, this Exhibit E shall be attached to and
incorporated within the existing Fiber Optic Facilities Agreement and the
parties agree to discharge their respective obligations as set forth below in
accordance with the terms and provisions of said Agreement. Additional FPC & IFN
Contact Lists and Escalation Procedures may be added to this Exhibit at the
request of the Telecommunications Company and with FPC's concurrence pursuant to
Section 4 of the Agreement.
-----------------------------------------------------------------------------
A. FPC Contact List and Escalation Procedures
-----------------------------------------------------------------------------
. For emergency repairs, contact FPC's Emergency Operations Center (EOC)
at 0-000-000-0000
. For scheduled maintenance, contact FPC's Information Delivery Service
Desk (SD) at 0-000-000-0000
. Reporting and Escalation Procedures:
FPC's EOC and SD are staffed 24 hours a day, 365 days a year. Please
call the appropriate phone number shown above, and give the following
information to the analyst who answers your call:
. Your Company
. Your Name
. Your Phone Number
. The nature of your call (outage, informational, planned
maintenance, etc.)
. Any pertinent details (where the outage is located, etc.)
Be certain to inform the analyst as to what number they should return
your call for updates on outage repairs, etc.
If necessary, the EOC and SD analysts are equipped with a current FPC
escalation list and have automated paging / notification services at
their disposal.
Please be certain to call the EOC only in a real emergency (fiber outage,
etc.)
-----------------------------------------------------------------------------
B. IFN Contact List and Escalation Procedures
-----------------------------------------------------------------------------
. For emergency repairs, contact IFN's Transmission Control Center at
0-000-000-0000 or 000 000-0000
. For scheduled maintenance, contact IFN's Schedule Event Management
Center at
0-000-000-0000 or 000 000-0000
(Exhibit F, Page 1 of 2)
CONFIDENTIAL & PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
EXHIBIT F (CONT.)
FPC AND CONTRAST LISTS AND ESCALATION PROCEDURES
------------------------------------------------------------------------------------------------------------------------------
C. FPCD Department Routing for Approval Acceptance of Terms and Conditions above
------------------------------------------------------------------------------------------------------------------------------
Interstate FiberNet
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Title: Vice President/CFO Managing Ptr.
--------------------------------------------
Date: 11-15-96
---------------------------------------------
Florida Power Corporation
Approved By Date
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------------------
/s/ [SIGNATURE ILLEGIBLE] 11/25/96
-------------------------------------------------
Title: Vice President, Information Technology
--------------------------------------------
Approved By Date
/s/ X.X. Xxxxx 11/25/96 Date: 11-25-96
------------------------------------------------- ---------------------------------------------
(Exhibit F, Page 2 of 2)
CONFIDENTIAL AND PROPRIETARY INFORMATION
PROPERTY OF FLORIDA POWER CORPORATION
