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EXHIBIT 10.13
***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.***
03/19/97 3:19 PM LEASE AGREEMENT
This Agreement is entered as of the 2nd day of April 1997 by and between
Interstate Telephone Company (Lessor) and CyberNet Holding, Inc. (Lessee). This
Agreement is based upon the following terms and conditions and the rates set
forth in Attachment A.
DESCRIPTION OF SERVICE:
SWITCHING
Switching capacity and services for Cybernet's Xxxxxxxxxx and
Columbus exchanges are provided from Interstate Telephone's West Point, Georgia
central office. Switching will be leased as follows: For each line side port
leased, a flat rate will be charged for the port and an additional per minute
charge will be supplied for each equipment minute of use. If lessee provides its
own ports through its own local switch, then charges will be limited to the per
minute charge on all originating and terminating traffic. Service activation
(moves, adds, and service changes) are provided on a "ready to serve" basis,
without regard to the number of transactions per line per month and will be
assessed on a monthly per line basis. This "ready to serve" charge is fully
billable for any line in service for any duration of the monthly billing period.
For the initial period of the lease, until measurement of all jurisdictions of
calls is available at West Point by line and lessor exercises its option to xxxx
actual usage, the entire lease expense will be expressed on a per minute basis
and will by for an assumed 800 originating minutes of use per line.
INTERCONNECTION SERVICES
Interstate Telephone Company will provide TR303 switch interface
service to support DS1 ports to connect lessee's Host Digital Terminals (HDT's).
Each Cybernet HDT requires, at a minimum, two T-1 level termination's (one
incoming and one outgoing). In addition, Interstate Telephone will provide local
tandem access and interexchange carrier trunk termination services.
FORECASTS
It is the responsibility of both parties to mutually plan and
forecast network and facility requirements. Forecasts, together with lessor and
lessee installation dates and commitments are to be prepared annually and
updated each 90 days. The initial term forecasts and commitments are provided in
Attachment B.
TERMS AND CONDITIONS:
1. Lessee may not use the facilities described in Attachment A in
any manner which will cause harm to Lessor's network. The Lessee shall not, at
any time, alter in any way the leased services and facilities without the
written consent of the Lessor.
2. Service Charges. Lessee shall pay Lessor at the rate and fees as
noted in Attachment "A". Services are billable in advance and xxxxxxxx will be
rendered by the tenth day of the month. Payment terms are net 30 days (i.e.
April's billing is due no later than May 10).
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3. Late Payment Charge. Lessor may impose a late-payment charge if
any portion of a payment due to Lessor under Section 2 is received after the
payment date. The late-payment charge shall be the portion of the payment not
received by the payment date times a late factor. The late factor shall be .015%
per month or the highest interest rate (in decimal value) which may be lawfully
imposed for commercial transactions in Georgia (whichever is less) compounded
daily for the number of days from the payment date to and including the date
that Lessee actually makes the payment to the Lessor.
4. Term. Lessee's obligation to make the monthly payments described
in Section 2 above shall commence on May 1, 1997. This Agreement shall terminate
one year after the date this Agreement is executed. If proper notice as required
in paragraph 9 is not received by the Lessor 90 days prior to the termination
date that Lessee wishes to terminate the Agreement, this Agreement will
automatically renew for a period of one year, and renew annually thereafter,
until such termination notice is given. Lessor reserves the right, upon 90 days
advance written notice, to change any rates and fees commensurate with the
beginning of any automatic renewal period. In the event Lessor does change the
rate and fees, Lessee shall have the right to cancel this contract by giving
Lessor written notice thereof within 90 days of Lessee's notice of the rate
change.
Upon notice from Lessor that Lessee has failed to comply with any
of the conditions hereof, or that the use of plant facilities is forbidden by
regulatory authorities, the lease shall immediately terminate for the said
facilities or services, and Lessee shall forthwith discontinue the use of those
facilities. Upon Lessee's failure to discontinue such use, Lessor reserves the
right to cause such discontinuance at the expense of Lessee, and no liability
shall inure to Lessor on account of such discontinuance.
5. System Maintenance. Lessee covenants and agrees that it will
maintain its equipment and facilities according to generally accepted standards,
in good working order at all times, and will repair promptly any malfunction or
breakdown in its equipment and facilities which could impair the function of the
Lessor's Facilities.
6. Outages. Lessor shall not be liable to Lessee for any damages
resulting to Lessee from the outage or malfunction of the Lessor's Facilities.
Restoration of service resulting from service outages or malfunctions due to
equipment failure, human error, fire, natural disaster, acts of God or similar
occurrences shall be accomplished as expeditiously as practicable. Lessor's
liability in the event of such an outage or malfunction shall be limited to a
credit for outage time. No credit shall be allowed for an interruption of less
than two hours during any given month. The credit shall be a pro rata share of
the Lessee's monthly charge, not to exceed the Lessee's total monthly charge.
Any claim for such a credit must be made within five (5) days following such
outage or malfunction.
7. Inspection and Testing. Lessee shall have the right, upon
reasonable notice, to inspect Lessor's Facilities. Lessor will aid in the
provision of end-to-end testing as necessary.
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8. Software License Fees. Lessee agrees to reimburse lessor for any
software license fees incurred as a result of the business arrangement herein
described. Software license fees are payable in advance in one hundred telephone
number block increments as ordered by lessee. License fees vary according to
services as listed below:
Service Offerings Per 100 Lines
----------------- -------------
a. Centrex [_____]
b. Calling number and calling name ID [_____]
c. Voice Mail [_____]
d. Primary rate ISDN [___________]
e. Basic rate ISDN [________]
9. Property Rights. Neither the provision of any facilities or
services by Lessor or Lessee, nor the payment by Lessee for such facilities or
services, shall create or vest in Lessee any easement or other ownership and
property rights of any nature in the Lessons facilities or related systems
and/or equipment of the Lessor.
10. Notices. Except where otherwise provided in this Agreement,
notices required to be given pursuant to this Agreement shall be effective when
received, and shall be sufficient if given in writing, hand delivered, or United
States mail, postage prepaid, addressed to the appropriate party at the address
set forth below. At any time by giving written notice to the other party, either
party may change the name and address to whom all notices or other documents
required under this Agreement must be sent.
Lessor Lessee
------ ------
Interstate Telephone Company CyberNet Holding, Inc.
000 Xxxxx Xxxxxx 000 X. 0xx Xxxxxx
X.X. Xxx 000 X.X. Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
11. Assignment. Neither party shall assign or transfer all or any
part of its rights or interest hereunder without first obtaining the written
consent of the other party to such an assignment or transfer, such consent not
to be unreasonably withheld; provided, however, that an assignment by either
party to an affiliate of that party shall not require prior approval. In the
event of any assignment of this Agreement, the assignee shall assume all rights
and obligations under the terms and conditions of this Agreement, as then in
force, from the assigning party. Notwithstanding the above, Lessee shall not
transfer, sublet or permit any other entity to cohabit any of the facilities or
services described in this Agreement without the written consent of Lessor.
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12. Regulatory Approval. This Agreement may be subject to the
regulatory approval prior to the installation of the service. Should such
regulatory approval be denied, this Agreement shall be null, void, and of no
effect.
13. Independent Contractor. Each of the parties shall perform its
obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party.
14. Liability Insurance. Lessor and Lessee shall furnish to each
other, on an annual basis, a certificate of liability insurance covering the
facilities and services described under this Agreement.
15. Force Majeure. Neither party shall be held liable for any delay
or failure in performance of any obligation under this Agreement when such delay
or failure results from any cause beyond its control, such as acts of God, acts
of civil or military authority, governmental regulations, war, terrorist acts,
insurrections, explosions, fires, earthquakes, nuclear accidents, floods,
strikes, power blackouts, other major environment or weather conditions, or
inability to secure equipment.
16. Limitations of Liability. Neither lessor nor lessee shall be
liable to the other for any indirect, incidental, or consequential damages
(including but not limited to loss of profits, damage to business reputation,
lost opportunity, or other remote items of damage) arising from any errors in,
use of, inability to use, or other defects in the equipment or services provided
hereunder, or based on breach of warranty or contract, negligence, or any other
legal theory, whether or not lessor or lessee has been advised of the
possibility of such damages. Lessor's liability for damages suffered by the
other or third parties using or unable to use the equipment or services covered
under this agreement shall be limited to a credit for outage or malfunction as
provided for in paragraph 6 hereof.
17. Indemnification. Lessee agrees to hold harmless and indemnify
Lessor from and against all claims, liability, loss and damage, including
reasonable attorney's fees, for injury or death to persons or damage to property
arising out of or in connection with this Agreement and the provision of
services by Lessor to Lessee pursuant to this Agreement.
18. Confidentiality of Agreement. The parties of this Agreement will
treat this Agreement, its notices, and any amendments, and their terms and
conditions as strictly confidential. Neither party will disclose the foregoing
(a) to any officer, employee, or agent of a party to this Agreement who has no
authority to have access to the data and materials or who has no business need
to know same or (b) to any person who is not a party to this Agreement. If a
court with proper jurisdiction or another governmental agency with proper
jurisdiction orders a party to disclose or to provide any data or any document
relating to this Agreement, that party will immediately notify the other party
of the order. Such notification shall be by both telephone and by mail. The
parties, thereafter, shall mutually agree as to whether they should jointly make
a reasonable effort to secure
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an agreement of confidentiality from such court or agency before responding
thereto. If only one party desires to seek such an agreement of confidentiality,
that party may proceed at its own expense; provided, further, that the
non-agreeing party shall not take any action that would interfere with such
action.
19. Non-Exclusivity. Lessor and Lessee recognize and expressly
agree that nothing in this Agreement shall create an exclusive relationship
between the parties.
20. No Waiver. No failure of a party to enforce a provision of this
Agreement will be construed as a general or a specific waiver of that provision,
a party's right to enforce that provision, or a party's right to enforce any
other provision of this Agreement.
21. Severability. If any provision of this Agreement is held
invalid, unenforceable or void, the remainder of the Agreement shall remain in
force and effect.
22. Entire Agreement/Amendments. This Agreement embodies the entire
Agreement and understanding between the parties hereto pertaining to the subject
matter hereof. No provision of this Agreement may be altered, amended, canceled,
changed, discharged, modified, terminated or waived except by written Agreement
signed by both parties.
23. Governing Law. This Agreement shall be governed by, construed
in accordance with, the law of the State of Georgia
24. Headings. The headings in this Agreement are for convenience
only and are not part of this Agreement nor should they be construed as such.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth below.
LESSOR: INTERSTATE TELEPHONE COMPANY
000 XXXXX XXXXXX/X. X. XXX 000
XXXX XXXXX, XXXXXXX 00000
WITNESS: /s/ [ILLEGIBLE SIGNATURE] BY: /s/ Xxxxxx Xxxxxxxx
-------------------------- -----------------------------------------
TITLE: CFO
--------------------------------------
DATE: 4/2/97
---------------------------------------
LESSOR: CYBERNET HOLDING, INC.
000 X. 0XX XXXXXX/X.X. XXX 000
XXXX XXXXX, XXXXXXX 00000
WITNESS: /s/ Xxxxx Xxxxx BY: /s/ Xxxxxxx X. Xxxxxx
-------------------------- -----------------------------------------
TITLE: CEO & President
-------------------------------------
DATE: 4/2/97
---------------------------------------
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ATTACHMENT "A"
RATES AND CHARGES
A. SWITCHING SERVICES PROVIDED:
This lease is for switching capacity and services from the West Point, Georgia
central office. Switching will be leased as follows: For each line side port
leased, a flat rate will be charged for the port and an additional per minute
charge will be supplied for each equipment minute of use. If lessee provides its
own ports through its own local switch, then charges will be limited to the per
minute charge on all originating and terminating traffic. Service activation
(moves, adds, and service changes) are provided on a "ready to serve" basis,
without regard to the number of transactions per line per month and will be
assessed on a monthly per line basis. This "ready to serve" charge is fully
billable for any line in service for any duration of the monthly billing period.
Service activation and support charges are not pro ratable. Lessor reserves the
right, upon 120 day advance notice, to xxxx service activation (moves, adds and
service changes) at [____] per transaction in lieu of the monthly per line
charge of [_____].
1. LEASE RATES:
For Originating and Terminating Switching Capacity at the West Point
Central Office
INITIAL LEASE PERIOD:
---------------------
ITEM MONTHLY RATE
---- ------------
Line side Port [_____] per port
Switching Capacity [_______] per equipment minute
Service Activation [____] per line
2. ASSUMED MINUTES:
Lessor agrees to use assumed minutes as an interim basis for
billing but reserves the right to convert to actual use at its sole discretion
upon sixty days advance notice. Unless other notified, it is assumed that each
line in service generates a total of [___] total minutes of use (originating and
terminating traffic) each month. Xxxxxxxx will be rendered in arrears on a
calendar month basis. First month's and last month's xxxxxxxx will be prorated
at l/2 of the full monthly charge (i.e. [_____] per line for switching and
[____] per line for service activation).
3. SUMMARY OF MONTHLY CHARGES PER LINE:
Switching services [_____]
Service Activation [_____]
-----
Total per line charge [_____]
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B. INTERCONNECTION SERVICES PROVIDED
Interstate Telephone Company will provide TR303 switch interface
service to support DS1 ports to connect lessee's Host Digital Terminals (HDT's).
Each Cybernet HDT requires, at a minimum, two T-1 level terminations (one
incoming and one outgoing). In addition, Interstate Telephone will provide local
access tandem and interexchange carrier trunk termination services.
1. Interconnection fees are set forth in the table below:
Basis For Monthly
Charge Recurring Installation
------ --------- ------------
TR303 Interface T-1 [_______] [_______]
DS1 Local Channel T-1 [______] [_]
(co-located)
DS1 Digital Trunk T-1 [______] [_______]
Termination
Network Access (DS1) Channel [_____] [_]
NNX Administration NNX [__] [_________]
2. First month's and last month's xxxxxxxx will be prorated
at one half (1/2) of the full monthly charge.
C. SOFTWARE LICENSE FEES
One-time software license fees are payable in advance in one
hundred block increments as ordered by lessee. License fees vary according to
services as listed below:
Service Offerings Per 100 Lines
----------------- -------------
a. Centrex [______]
b. Calling number and calling name ID [______]
c. Voice Mail [______]
d. Primary rate ISDN [____________]
e. Basic rate ISDN [_________]
BY: /s/ Xxxxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ------------------------------
Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
-------------------------------- ---------------------------
DATE: 4/2/97 DATE: 4/2/97
--------------------------------- ----------------------------
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ATTACHMENT "B"
CYBERNET FORECASTS
CYBERNET LINE FORECAST FOR 1997
-------------------------------
HDT'S TELE LINES 12/31/97
----- -------------------
Xxxxxxxxxx Nodes [_] [____]
Headend [_] [___]
[____]
Columbus Nodes [_] [___]
Headend [_] [___]
[__] [____]
TOTAL TELEPHONE LINES @ 12/31/97 [____]
TR303, LOCAL AND IXC REQUIREMENTS FOR 1997
------------------------------------------
ESTIMATED LOCAL &
TR303 TR303 T's IXC T-1's
HDT'S T'S/HDT @ 12/31/97 @ 12/31/97
----- ------- ---------- ---------
TR303 T-1 Interconnections- [__] [_] [__]
Minimum for each HDT of [_]
Local Interconnection-T-1's [_]
Toll Interconnection - T-1's [_]
Notes: Minimum TR303 T's per HDT is [___] regardless of customers
per HDT.
Assumes bus:res does not exceed a 50/50 split
Additional TR303 T's may be required depending on traffic
patterns and customers per HDT node.
HDT roll-out schedule for live telephone to be provided by
CyberNet
HDT REQUIREMENTS:
Location NNX Number In Service Date
-------- --- ------ ---------------
Xxxxxxxxxx
Columbus
BY: /s/ Xxxxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -----------------------------
Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
--------------------------------- -----------------------------
DATE: 4/2/97 DATE: 4/2/97
--------------------------------- -----------------------------
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