EXHIBIT 10.44
***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.***
AGREEMENT FOR THE PROVISION OF TELECOMMUNICATIONS
SERVICES AND FACILIITES
BETWEEN
CAROLINAS FIBERNET, LLC
AND
INTERSTATE FIBERNET, GP
Dated January 27, 1996
AGREEMENT FOR THE PROVISIONS
OF TELECOMMUNICATIONS SERVICES AND FACILITIES
TABLE OF CONTENTS
INTRODUCTION.................................................. 1
ARTICLE I
DEFINITIONS................. 1
1.1 "Agreement"........................................ 1
---------
1.2 "Affiliate"........................................ 1
---------
1.3 "Capacity"......................................... 1
--------
1.4 "CFN".............................................. 1
---
1.5 "Committee"........................................ 1
---------
1.6 "Compensation"..................................... 1
------------
1.7 "Customer"......................................... 1
--------
1.8 "Interruption"..................................... 2
------------
1.9 "IFN".............................................. 2
---
1.10 "Network Revenue".................................. 2
---------------
1.11 "Party" or "Parties"............................... 2
----- -------
1.12 "Person"........................................... 2
------
1.13 "Provider"......................................... 2
--------
1.14 "Route Miles"...................................... 2
-----------
1.15 "Route Segments"................................... 2
--------------
1.16 "Seller"........................................... 2
------
1.17 "Service".......................................... 2
-------
1.18 "Stated Compensation".............................. 2
-------------------
1.19 "Stated Compensation Rate"......................... 2
------------------------
ARTICLE II
RELATIONSHIP OF THE PARTIES........... 2
2.1 Limited Liability.................................. 2
-----------------
2.2 Dual Roles......................................... 3
----------
ARTICLE III
ESTABLISHMENT AND MAINTENANCE OF SERVICE......... 3
3.1 Establishment of Service........................... 3
------------------------
3.2 Continuing Record of Available Capacity............ 3
---------------------------------------
3.3 Additional Capacity................................ 3
-------------------
3.4 Dispute of Parallel Routes......................... 3
--------------------------
i
3.5 Stated Compensation................................. 3
-------------------
ARTICLE IV
DUTIES OF THE PROVIDER............. 4
4.1 Capacity Provided................................... 4
-----------------
4.2 Liability for Interruption.......................... 4
--------------------------
4.3 Capacity, Service and Testing....................... 4
-----------------------------
ARTICLE V
DUTIES OF THE SELLER............... 5
5.1 Seller's Use........................................ 5
------------
5.2 Testing............................................. 5
-------
ARTICLE VI
JOINT DUTIES....................... 5
6.1 Sales Efforts....................................... 5
-------------
6.2 Sales Materials: Information Regarding Service...... 5
----------------------------------------------
6.3 Contract Provisions................................. 5
-------------------
6.4 Force Majeure....................................... 6
-------------
ARTICLE VII
COMPENSATION AND BILLING........... 6
7.1 Linear System Compensation.......................... 6
--------------------------
7.2 Ring System Compensation............................ 6
------------------------
7.3 Bonus Compensation.................................. 6
------------------
7.4 Compensation and Interruptions...................... 6
------------------------------
7.5 Billing and Collection.............................. 7
----------------------
7.6 Commissions......................................... 7
-----------
7.7 Payment of Compensation............................. 7
-----------------------
7.8 Late Payment........................................ 7
------------
7.9 Installation Fees and Cancellations................. 7
-----------------------------------
ARTICLE VIII
NON-DISCLOSURE.................... 8
8.1 Acknowledgment...................................... 8
--------------
8.2 Confidential Information Defined.................... 8
--------------------------------
ii
8.3 Exclusions from Definition........................... 9
--------------------------
8.4 Non-disclosure Obligation............................ 9
-------------------------
8.5 Compliance with Legal Process........................ 9
-----------------------------
8.6 Ownership; Return of Information..................... 10
--------------------------------
8.7 Remedies for Breach.................................. 10
-------------------
8.8 Term................................................. 10
----
8.9 Applicability to Affiliates.......................... 10
---------------------------
ARTICLE IX
DISPUTE RESOLUTION............... 10
9.1 Intercompany Review Committee........................ 10
-----------------------------
9.2 Arbitration.......................................... 11
-----------
ARTICLE X
MISCELLANEOUS PROVISIONS.............. 13
10.1 Limitation on Agency................................. 13
--------------------
10.2 Term and Termination of Agreement.................... 13
---------------------------------
10.3 Additional Actions and Documents..................... 13
--------------------------------
10.4 Severability......................................... 13
------------
10.5 Warranties........................................... 13
----------
10.6 Limitation of Benefits of this Agreement............. 13
----------------------------------------
10.7 Amendment............................................ 13
---------
10.8 Variations in Pronouns............................... 14
----------------------
10.9 Cumulative Remedies.................................. 14
-------------------
10.10 Governing Law; Resolution............................ 14
-------------------------
10.11 Entire Agreement..................................... 14
----------------
10.12 Successors........................................... 14
----------
10.13 Notices.............................................. 14
-------
10.14 Counterparts......................................... 15
------------
iii
INTRODUCTION
THIS AGREEMENT, by and between Carolinas FiberNet, LLC (hereinafter
"CFN") and Interstate FiberNet, G.P. (hereinafter "IFN") (collectively referred
to as the "Parties");
WHEREAS, the Parties hereto each conduct the business of providing
telecommunications services over a network of telecommunications facilities
which each Party has at its access; and
WHEREAS, the Parties desire to interconnect their respective networks and
enter into a cross-marketing agreement whereby either Party may sell point-to-
point internetwork telecommunication transport; and
NOW, THEREFORE, the Parties hereto agree to the following terms and
conditions:
W I T N E S E T H:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "Agreement" shall mean this Agreement for the Provision of
---------
Telecommunications Services and Facilities as amended from time to time.
1.2 "Affiliate" shall mean, with respect to any Person, any other
---------
Person directly or indirectly controlling, controlled by or under common control
with, such Person, whether through the ownership of voting securities, by
contract or otherwise.
1.3 "Capacity" shall mean the telecommunications transport which is made
--------
available to a Party pursuant to this Agreement.
1.4 "CFN" shall mean Carolinas FiberNet, LLC, a North Carolina limited
---
liability company.
1 .5 "Committee" shall mean the Intercompany Review Committee established
---------
pursuant to Section 9.1 of this Agreement.
1.6 "Compensation" shall mean the amount of money due from the Seller to
------------
the Provider for Capacity provided under this Agreement.
1.7 "Customer" shall mean a Person who obtains Service from a Party.
--------
1
1.8 "Interruption" shall mean any two second interval with a complete
------------
interruption of Capacity or with a bit error rate in excess of 1 x 10/-9/.
1.9 "IFN" shall mean Interstate FiberNet, a Georgia general partnership.
---
1.10 "Network Revenue" shall mean the recurring gross revenues (net of
---------------
access fees and applicable taxes and franchise fees on those gross revenues)
received by the Seller from the sale of a Service.
1.11 "Party" or "Parties" shall mean CFN or IFN or both, as the context
------- -------
shall require.
1.12 "Person" shall mean any corporation, company, association,
------
partnership, other entity or natural person.
1.13 "Provider" shall mean a Party selling Capacity to the other Party
--------
(the Seller) pursuant to this Agreement.
1.14 "Route Miles" shall mean the actual distance in miles over the
-----------
Parties' facilities which are utilized to provide Service to the Customer.
1.15 "Route Segments" shall mean a telecommunications route capable of
--------------
transporting Capacity between any two (i) points of presence, (ii) regenerators,
or (iii) meet points or any combination of two of (i), (ii) and (iii).
1.16 "Seller" shall mean a Party purchasing Capacity from the other Party
------
(the Provider) pursuant to this Agreement for the purpose of selling it to a
Customer.
1.17 "Service" shall mean a combination of a portion of the Seller's
-------
Capacity with a portion of the Provider's Capacity which is to be sold to a
Customer.
1.18 "Stated Compensation" shall mean Stated Compensation as computed
-------------------
pursuant to Section 3.5 of the Agreement.
1.19 "Stated Compensation Rate" shall mean the rate as set forth on
------------------------
the applicable Stated Compensation Rate Schedule established pursuant to Section
3.5 of the Agreement.
ARTICLE II
RELATIONSHIP OF THE PARTIES
2.1 Limited Liability. This Agreement shall not be considered to
-----------------
create a joint venture, partnership or other legal relationship between the
Parties or as giving the right of either to legally bind the other in any manner
or to be able to incur debts and liabilities on behalf of the other Party or
create a condition in which either shall share or be responsible for the debts
2
or liabilities of the other. This Agreement shall not be considered to
constitute the appointment of either Party as a sales representative (exclusive
or non-exclusive) of the other Party.
2.2 Dual Roles. This Agreement envisions that each Party will be both a
----------
Seller and Provider with respect to the Capacity.
ARTICLE III
ESTABLISHMENT AND MAINTENANCE OF SERVICE
3.1 Establishment of Service. CFN agrees initially to make available
------------------------
to IFN (1) Capacity as described in Schedule 3.1(a) and (2) Route Segments as
described in Schedule 3.1(b). IFN agrees to initially make available to CFN (1)
Capacity as described in Schedule 3.1(c) and (2) Route Segments as described in
Schedule 3.1(d). CFN and IFN shall utilize such Capacity to establish and market
Services.
3.2 Continuing Record of Capacity. Each Party agrees to keep complete and
-------------------- --------
current records of sold Capacity and available Capacity (available Capacity
shall constitute Capacity described in Sections 3.1 and 3.3 of the Agreement
excluding Capacity utilized to provide Service sold to Customers) in a uniform
format developed by the Committee. Each Party shall make such records available
to the other Party.
3.3 Additional Capacity. From time to time a Party may extend or expand
-------------------
its Capacity. Upon approval of the other Party, a Party may add such additional
Capacity to the Capacity already subject to this Agreement. Additional Capacity
and Route Segments subject to this Agreement shall be evidenced by an additional
Schedule which shall be attached to this Agreement (numbered from Schedule
3.3(a) through 3.3(zz)).
3.4 Meet Point. The meet point of the Parties' networks shall be
----------
established at the [________] V & H coordinates of [_________]. Additional meet
points may be established under this Agreement with the written consent of both
Parties.
3.5 Stated Compensation. In the case of Capacity provided under this
-------------------
Agreement where the a point of presence and the z point of presence (described
below) are both located in a Tier I city, Stated Compensation shall be the
product of the Stated Compensation Rate [_____________________] multiplied
by the airline miles ("ALMs") between the a point of presence and z point of
presence (where a and z constitute the points of interconnection with the
Customer or the Customer's access provider). In the case of Capacity provided
under this Agreement where either or both of the a point of presence or the z
point of presence (described above) are located in a Tier II or Tier III city,
Stated Compensation shall be the sum of (i) the product of the Stated
Compensation Rate [_______________________] multiplied by the ALMs between b
point of presence and y point of presence (where b and y constitute points of
interconnection between designated Tier I cities (designated in Schedule 3.5));
(ii) the product of the Stated Compensation Rate [__________________________]
multiplied by the ALMs between the b point
3
of presence (described above) and the a point of presence (where a constitutes
the interconnection with the Customer or Customer's access provider in a Tier II
or Tier III city); and (iii) the product of the Stated Compensation Rate
[_________________________] multiplied by the ALMs between y point of presence
(described above) and the z point of presence (where z constitutes the point of
interconnection with the Customer or Customer's access provider in a Tier II or
Tier III city). The Stated Compensation Rate will be the applicable rate for
Capacity on the then current Stated Compensation Rate Schedule for the city
pairs between which Service is to be provided. Each Party shall designate the
applicable tier for each of its cities. The governing tier of a city pair shall
be the higher tier number of the designated tier applicable to each city. The
initial Stated Compensation Rate Schedule and the designated Tier I cities are
attached to this Agreement as Schedule 3.5. As frequently as necessary, but not
less than at six month intervals, the Committee may revise the Stated
Compensation Rate Schedule. Notwithstanding the provisions of this Section, a
Seller may charge a Customer a price based on a rate in excess of or below the
applicable Stated Compensation Rate Schedule for Service provided under this
Agreement. However, subject to Article VII, the Provider's minimum Compensation
shall be computed utilizing the Stated Compensation Rate.
ARTICLE IV
DUTIES OF THE PROVIDER
4.1 Capacity Provided. The Provider agrees to provide the Capacity for
-----------------
the provision of point-to-point telecommunications transport in accordance with
industry standards.
4.2 Liability for Interruption. The Provider's liability to Seller
--------------------------
shall be limited to a credit, as provided in Section 7.4 herein, for
Interruption unless the Interruption is the result of gross negligence or
willful misconduct by the Provider, its employees, agents, or contractors. Any
claim or demand for credit as a result of any Interruption shall be waived
unless presented in writing within six months after the date of the
Interruption.
4.3 Capacity, Service and Testing. Provider agrees to properly maintain
-----------------------------
Capacity covered by this Agreement. Upon execution of this Agreement, CFN and
IFN shall each appoint two persons to develop standards and requirements for the
provision of Capacity under this Agreements (the "Standards"). Such Standards
shall equal or exceed general long-haul telecommunications industry performance
standards. Seller and Provider agree to perform joint testing on an as-required
basis in conformance with the requirements described pursuant to this Section.
Provider agrees to provide the Seller with a twenty four (24) hour, seven day a
week technical contact for coordination of testing of Capacity covered under
this Agreement. In the event of an Interruption of the Capacity, Provider agrees
to provide restoration of Capacity, on a priority basis. Provider, at its sole
expense, shall keep the Capacity as now or hereafter constituted with all
improvements and upgrades made thereto in good condition and shall make all
repairs and replacements necessary to maintain the Capacity.
4
ARTICLE V
DUTIES OF THE SELLER
5.1 Seller's Use. The Seller shall be permitted to use Capacity
------------
operated and maintained by the Provider and contracted for under this Agreement
only to provide Capacity for sale to a Customer. Capacity purchased under this
Agreement must be the subject of actual contracts or agreements for Service with
a Customer and may not be purchased under this Agreement at wholesale for
eventual resale pursuant to unexecuted contracts or agreements with existing or
future Customers. In the event the Provider asserts that the Seller is violating
the provisions of this Section and the Parties cannot resolve the conflict
between themselves, the Provider may name three certified public accountants to
review the applicable contracts to determine the Seller's compliance with this
Section. The Seller shall designate one of the three named certified public
accountants to audit the applicable contracts and shall make such contracts
available to the named certified public accountant. The Provider shall be
responsible for the certified public accountant's fees and expenses, unless the
certified public accountant determines this Section 5.1 is being violated. In
such a case, the Seller shall be responsible for the certified public
accountant's fees and expenses.
5.2 Testing. Seller and Provider agree to perform joint testing on an
-------
as-required basis in conformance with the requirements developed pursuant to
Section 6.3. Seller agrees to provide the Provider with a twenty four (24) hour,
seven day a week technical contact.
ARTICLE VI
JOINT DUTIES
6.1 Sales Efforts. Each Party shall use reasonable efforts to market and
-------------
sell Service to potential Customers.
6.2 Sales Materials; Information Regarding Service. The Seller shall
----------------------------------------------
obtain the written approval of the Provider prior to distribution of any
advertising, promotional or sales materials or other publicity concerning the
Provider and/or its Affiliates with respect to Service offered pursuant to this
Agreement and the relationship between the Parties under this Agreement.
However, if the Seller does not receive written notice of the Provider's
objection to any submitted advertising, promotional or sales materials, within
three business days of Provider's receipt at the place for notices contained in
Section 10.13 of this Agreement, the Provider will be deemed to have given
written approval of such advertising, promotional or sales materials. The Seller
shall make no representations or warranties concerning Service, except as
specifically authorized by the Provider.
6.3 Contract Provisions. Subject to the Standards developed pursuant to
-------------------
Section 4.3, the Seller shall determine the provisions which shall be included
in all contracts for Services to Customers. However, no contract shall contain a
provision which authorizes its termination with
5
less than thirty (30) days notice to the Seller. Further, without the written
consent of the Provider, no contract shall be for a term which extends beyond
January 31, 2004.
6.4 Force Majeure. Neither Party shall be held liable for any delay
-------------
or failure in performance of any part of this Agreement from any cause beyond
its control and without its fault or negligence, such as acts of God, acts of
civil or military authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, strikes, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions, or acts or
omissions of transportation common carriers (collectively referred to as "Force
Majeure Conditions").
ARTICLE VII
COMPENSATION AND BILLING
7.1 Linear System Compensation. With respect to Network Revenue to
--------------------------
be derived from each sale of Service, the Seller shall pay the Provider a fee
equal to the product of the Stated Compensation multiplied by a fraction. The
numerator of the fraction shall be the carriage distance attributable to the
Provider providing facilities to the route producing such Network Revenue, and
the denominator shall be the sum of the carriage distance attributable to the
Provider providing facilities to the route producing such Network Revenues and
the carriage distance attributable to the Seller providing facilities to the
route producing such Network Revenue. Carriage distance attributable to the
Service producing such Network Revenue shall be determined in airline miles
(ALMs) between the meet point of the Parties' networks ([____] V & H coordinates
of [________]) and the point of presence constituting the interconnection with
the Customer or the Customer's access provider. For example, in the case of a
sale of Capacity over a linear route where the carriage distance attributable to
Provider is 20 ALMs, and attributable to Seller is 30 ALMs, the Seller shall pay
to the Provider 40% (20/50) of the Stated Compensation.
7.2 Ring System Compensation. Reserved.
------------------------
7.3 Bonus Compensation. In addition to Compensation paid pursuant to
--------------------
Sections 7.1 and 7.2, to the extent that the Network Revenue attributable to the
Provider provided Capacity is greater than the Stated Compensation attributable
to such Provider (computed according to the principles enunciated in Sections
7.1 and 7.2), the Seller shall pay the Provider a Bonus Compensation fee equal
to [_] multiplied by the difference between the Network Revenue attributable to
the Provider provided Capacity (computed according to the principles enunciated
in Sections 7.1 and 7.2) and the Stated Compensation attributable to such
Provider.
7.4 Compensation and Interruptions. In case of any Interruption to any
------------------------------------
Capacity provided by Provider under this Agreement, if not due to the negligence
of the Seller or its customers, the following rules shall apply:
6
(a) If the customer's contract contains an Interruption Credit
enumerated on Exhibit 7.4, Seller shall be credited for an
Interruption at the rate as provided in the affected
Customers' contracts. Notwithstanding the previous sentence,
neither Party will enter a contract with a Customer (who is
not a Customer on the date of the execution of this
Agreement) which provides for an interruption credit
enumerated in category B or F of Exhibit 7.4, unless the
Party receives written consent of the other Party. However,
in no event shall the Interruption Credit exceed an amount
equal to the Compensation that would have been payable to
the Provider with respect to such interrupted Capacity.
(b) The Interruption allowance applies only to the Capacity
interrupted.
(c) A credit allowance is not applicable for any period during
which Seller or its Customer fails to afford access to
Capacity provided by Provider for the purpose of
investigations and clearing troubles.
7.5 Billing and Collection. The Seller will be responsible for billing
----------------------------
and collection of its Customer accounts. The Seller may contract for billing and
collection.
7.6 Commissions. There will be no sales commission to the Seller for
-----------------
selling Capacity on the Provider's system.
7.7 Payment of Compensation. Compensation will be payable to the Provider
---------------------------
within 20 days of the end of the month in which the Service was provided to the
Customer. With respect to payable Compensation, the Seller shall issue to the
Provider on a circuit by circuit basis a detailed statement indicating the
Compensation to be paid with respect to such Service. In the event the Provider
asserts that the Seller has miscomputed the amount of payable Compensation and
the Parties cannot resolve the conflict between themselves, the Provider may
name a certified public accountant to review the applicable contracts and
computations of the payable Compensation. The Party requesting the audit shall
be responsible for the certified public accountant's fees and expenses.
7.8 Late Payment. Any payment of Compensation received after the
------------------
required payment date, described in Section 7.7 of this Agreement, will be
subject to a late payment charge. A late payment charge shall accrue on all
outstanding amounts as of each required payment date (as described in Section
7.7 of this Agreement). The late payment charge shall equal the amount due on
the required payment date multiplied by one and one half percent (1 1/2 %)
multiplied by the number of required payment dates which have passed since the
accrual of the liability for the payment of such Compensation.
7.9 Installation Fees and Cancellations. Upon each required payment
-----------------------------------------
date (as described in Section 7.7 of this Agreement), the Seller shall pay the
Provider the following
7
installation fees with respect to Capacity with an in-service date (as
originally requested by the Customer) occurring in the prior month:
(a) with respect to Capacity where the a point of presence and the z
point of presence (as described in Section 3.5) are both located in a Tier
I city and where the Seller does not charge an installation fee, [______];
(b) with respect to Capacity where the a point of presence and the z
point of presence (as described in Section 3.5) are both located in a Tier
I city and where the Seller charges an installation fee, an installation
fee equal to the [________________] multiplied by a fraction with a
numerator equal to the airline miles (ALMs) between either the a or z point
of presence (where either the a or z point of presence constitutes the
point of interconnection with the Customer or Customer's access provider in
the Provider's territory) and the Meet Point (described in Section 3.4) and
the denominator equal to the ALMs between the a point of presence and the z
point of presence (described in Section 3.5); and
(c) with respect to Capacity where either both of the a point of
presence or the z point of presence are located in a Tier II or Tier III
city, an installation fee equal to [__] for each DS- 1 and [__] for each
DS-3.
In the event the contract is canceled less than ten days prior to the planned
in-service date (as originally requested by the Customer), the Seller shall pay
the Provider an amount equal to the applicable installation fee for the
Capacity. Additionally, in the event the contract is canceled prior to the
expiration of 30 days of the in-service date (as originally required by the
Customer), the Seller shall pay to the Provider an amount equal to the
applicable installation fee for the Capacity less amounts paid to the Provider
under the contract.
ARTICLE VIII
------------
NON-DISCLOSURE
--------------
8.1 Acknowledgment. Each Party acknowledges that it has received or
-------------------
may in the future receive from the other Party information of a non-public
nature for use by such Party and its agents, employees and representatives,
including financial and legal advisors (collectively, "representatives") in
connection with the evaluation of the Agreement and Capacity to be obtained
under the Agreement.
8.2 Confidential Information Defined. Each Party acknowledges that, in
-------------------------------------
the course of its consideration of and any concurrent or subsequent discussions
between such Party and the other Party or their respective representatives
relating to the Agreement, such Party may receive certain non-public and
confidential information from or about the other Party or their Affiliates,
including but not limited to technical, financial and business plans and models,
names of customers or suppliers, proposed business transactions, reports,
market projections, software
8
programs, data or any other confidential and proprietary information. All such
technical, financial or other business information thus supplied by a Party to
the other Party or its representatives is hereinafter called the "Information."
The term "Information" as used herein also includes the terms and conditions of
this Agreement. Any Information supplied by a Party prior to the execution of
the Agreement shall be considered in the same manner and be subject to the same
treatment as the Information made available after the execution of the
Agreement.
8.3 Exclusions from Definition. The term "Information" as used herein
-------------------------------
does not include any data or information (a) which is already known to the
receiving Party at the time it is disclosed to the receiving Party, or (b)which
before being divulged by the receiving Party (i) has become generally known to
the public through no wrongful act of the receiving Party; (ii) has been
rightfully received by the receiving Party from a third party without
restriction on disclosure and without, to the knowledge of the receiving Party,
a breach of an obligation of confidentiality running directly or indirectly to
the Party; (iii) has, prior to release, been approved for release by a written
authorization by the Party; (iv) has been disclosed pursuant to a requirement of
a governmental agency or of law without similar restrictions or other
protections against public disclosure, or is required to be disclosed by
operation of law; (v) is independently developed by the receiving Party without
use, directly or indirectly, of the Information received for the other Party; or
(vi) is furnished to a third party by the disclosing Party without restrictions
on the third party's right to disclose the information.
8.4 Non-disclosure Obligation. Each Party receiving any Information
------------------------------
shall keep such Information confidential and shall not disclose such
Information, in whole or in part, to any Person other than its representatives
who need to know such Information in connection with the receiving Party's
evaluation thereof and determination of business strategies, or other actions in
connection with this Agreement (it being agreed and understood that such
representatives shall be informed by the receiving Party of the confidential
nature of the Information and shall be directed by the receiving Party to treat
the Information confidentially), except (a) with the prior written consent of
the disclosing Party or (b) as otherwise permitted hereunder. The Information
shall be used by the receiving Party solely in connection with actions to be
pursuant to this Agreement, and shall not be otherwise used for any purpose
detrimental to the interests of the other Party.
8.5 Compliance with Legal Process. In the event that the Party
-----------------------------------
receiving any Information is legally requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process or, in the opinion of outside counsel
for such Party, by federal or state securities or other statutes, regulations or
laws) to disclose any Information, such Party shall promptly notify the
disclosing Party of such request or requirement prior to disclosure so that the
disclosing Party may seek an appropriate protective order and/or waive
compliance with the terms of this Agreement. If, however, in the opinion of
outside counsel for the receiving Party such Party is nonetheless, in the
absence of such order or waiver, compelled to disclose such Information or
otherwise stand liable for contempt or suffer possible censure or other penalty
or liability, then the receiving Party may disclose such information without
liability to the other Party hereunder.
9
8.6 Ownership: Return of Information. No license to a Party, under any
----------
trademark, patent, copyright, mask work protection right or any other
intellectual property right, is either granted or implied by the conveying of
Information to such Party. All Information (including tangible copies and
computerized or electronic versions thereof), shall remain the property of the
Party furnishing such Information. Within ten (10) days following the receipt of
a written request referencing this Agreement and this paragraph from the Party
furnishing Information hereunder, the receiving Party shall deliver to the
furnishing Party, as the case may be, all tangible materials containing or
embodying the Information received from the furnishing Party, as the case may
be. That portion of the Information which has been incorporated into analyses,
compilations, comparisons, studies or other documents prepared by the receiving
Party or its representatives shall be held by the receiving Party and kept
confidential as provided above or shall be destroyed.
8.7 Remedies for Breach. Each Party understands and agrees that money
-------------------
damages would not be a sufficient remedy for any breach of this Agreement and
that the disclosing party shall be entitled to seek injunctive or other
equitable relief to remedy or forestall any such breach or threatened breach.
Such remedy shall not be deemed to be the exclusive remedy for any breach of
these agreements but shall be in addition to all other rights and remedies
available at law or in equity.
8.8 Term. The obligation of each Party to maintain the confidentiality
----
of the information it has received under the Agreement shall continue for a
period of three (3) years after the termination of this Agreement.
8.9 Applicability to Affiliates. Any information disclosed by an
---------------------------
Affiliate of a Party which would otherwise constitute Information hereunder if
disclosed by any Party, shall be deemed to constitute Information under the
Agreement, and the rights of such Party under the Agreement may be enforced by
any such Affiliate as if such Affiliate were also a party to the Agreement. Each
Party may disclose any Information received hereunder to employees or
representatives of any of its Affiliates, provided such Person complies with the
provisions of this Article VIII.
ARTICLE IX
DISPUTE RESOLUTION
9.1 Intercompany Review Committee. Subject to review pursuant to Section
-----------------------------
9.2 of this Agreement, any dispute regarding any right, obligation, duty or
liability arising out of the provisions of this Agreement, or any dispute
regarding interpretation of any of its provisions, or any other dispute which
any provision of this Agreement specifies is subject to the provisions of this
Section, shall be referred to an Intercompany Review Committee (the
"Committee").
(a) The Committee shall be a standing committee composed of four
members, two each from CFN and IFN who shall be designated by the
respective
10
Party. Upon resignation or retirement of any member from the
Committee, or replacement of any member of the Committee, the
Party which placed the member on the Committee shall immediately
notify the other Party of the name, title, and address of the
member's replacement.
(b) Upon referral of any dispute to the Committee, the members of the
Committee may meet either in person or by telephone or confer by
any other means to resolve the dispute. Such resolution may be
informal in nature. However, all resolutions shall be approved in
writing by one Committee member of each Party.
(c) Upon consent of all members of the Committee, the Parties may
retain a mediator to aid the Committee in its deliberations by
informally providing advice to the Committee after discussion of
the dispute. Any opinion expressed by the mediator shall be
strictly advisory and shall not be binding on the Parties, nor
will any opinion expressed by the mediator be admissible in any
arbitration or other proceeding. The mediator may either be
chosen from a previously selected list, or by other agreement of
the Committee. Costs of mediation shall be borne equally by the
Parties. Mediation is not required prior to an agreement to
arbitrate under Section 9.2.
9.2 Arbitration.
-----------
(a) If any dispute refereed to the Committee has not been resolved
within thirty (30) days after the date of referral to the
Committee, or if a Party is not satisfied with the decision of
the Committee, a Party may submit the dispute to arbitration
according to the Commercial Arbitration Rules of the American
Arbitration Association. Each Party to the dispute shall select
an arbitrator and the two so selected shall name a third. All
arbitrators selected shall be members of the American Arbitration
Association. The arbitrators shall be impartial and familiar with
the telecommunications industry, and shall not have been employed
by or affiliated with any of the Parties hereto or any of their
respective Affiliates. The arbitration procedure may be initiated
by any Party by written notice to the other Parties, and such
notice shall specify in reasonable detail the dispute being
submitted to arbitration. The Parties hereby renounce all
recourse to litigation and agree that the award of the
arbitrators shall be final and subject to no judicial review. The
arbitrators shall conduct the proceedings, including arguments
and briefs, pursuant to the Commercial Arbitration Rules of the
American Arbitration Association, as now or hereafter amended
(the "Rules"); provided that the provisions of this Agreement
shall prevail in the event of any conflict between the Rules and
the provisions of this Agreement. The panel of arbitrators shall
decide the
11
issues submitted to them in accordance with the provisions and
commercial purposes of this Agreement, provided that all
substantive questions of law shall be determined under the laws
of the State of North Carolina (without regard to the principles
of conflicts of laws of such jurisdiction). All questions and
issues in connection with the dispute, including procedural
issues, shall be decided by the concurrence of at least two
arbitrators, and all decisions shall be in writing and submitted
to all parties.
(b) In no event shall any Party be entitled to receive, and the
arbitrators shall not be empowered to award, punitive or
exemplary damages. Each Party hereby irrevocably waives any claim
or right for or to punitive or exemplary damages.
(c) The Parties shall facilitate the arbitration by: (i) making
available to one another and to the arbitrators for examination,
inspection and extraction all documents, books, records and
personnel under their control if determined by the arbitrators to
be relevant to the dispute; (ii) conducting arbitration hearings
to the greatest extent possible on successive days; and (iii)
observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
(d) In the final award, the panel of arbitrators shall divide all
cost, other than fees of counsel incurred in conducting the
arbitration, in such manner as the panel deems just and equitable
under the circumstances. Judgment on the award of the panel of
arbitrators may be entered in any court having jurisdiction over
the party against which enforcement of the award is being sought.
Each Party hereby irrevocably submits and consents to the
jurisdiction of any such court for the purpose of rendering a
judgment on any such award.
(e) Each Party agrees that any award of the panel of arbitrators
against it and on which judgment is entered as provided in the
preceding subsection (d) may be executed against the assets of
such Party in any jurisdiction. By execution of the Agreement,
each Party hereby irrevocably submits to the jurisdiction of any
court in any such jurisdiction in any legal action or proceeding
relating to such executions.
(f) Each Party hereby irrevocably waives, to the fullest extent
permitted by law, any objection it may now or hereafter have to
any suit, action or proceeding, arising out of or relating to
this Agreement that is brought in any of the jurisdictions
designated in the preceding subsections (d) and (e) for the
purposes envisioned by those subsections, and hereby further
irrevocably waives any claim that any such suit, action or
proceeding so brought has been brought in any inconvenient forum.
12
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Limitation on Agency. It is specifically understood and agreed
--------------------
between the Parties that this Agreement extends only to and is limited to the
rights and obligations under this Agreement and, except as otherwise expressly
provided herein, this Agreement shall not constitute a Party as the agent of or
principal for the other Party.
10.2 Term and Termination of Agreement. The term of this Agreement
---------------------------------
commences on January 29, 1996 and continues for five (5) years. After February
28, 1999, a Party may terminate this Agreement upon thirty (30) days written
notice to the other Party. However,the term of this Agreement will continue
with respect to Capacity subject to Customer contracts (executed prior to the
termination of this Agreement) until the expiration of all such Customer
contracts.
10.3 Additional Actions and Documents. Each Party hereby agrees to take or
--------------------------------
cause to be taken such further actions, to execute, acknowledge, deliver or file
or cause to be executed, acknowledged, delivered, and filed such further
documents and instruments, and to use reasonable 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
before, at or after the execution of this Agreement.
10.4 Severability. The invalidity of any one or more provisions hereof or
------------
of any other agreement or instrument given pursuant to or in connection with
this Agreement shall not affect the remaining portions of this Agreement or any
such other agreement or instrument or any part thereof, all of which are
inserted conditionally on their being held valid in law; and in the event that
one or more of the provisions contained herein or therein should be invalid, or
should operate to render this Agreement or any such other agreement or
instrument invalid, this Agreement and other such agreements and instruments
shall be construed as if such invalid provisions had not been inserted.
10.5 Warranties. Each Party shall make no representations or warranties
----------
oil the other Party's behalf, and shall effectively disclaim any authority to
make such warranties or representations, except as specifically authorized by
the other Party.
10.6 Limitation of Benefits of this Agreement. It is the explicit
----------------------------------------
intention of each Party that no Person, other than a Party (except as provided
by Section 8.9), is or shall be entitled to bring any action to enforce any
provision of this Agreement against a Party, and that the covenants,
undertakings, and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by, the Party (or its successors and
assigns).
10.7 Amendment. This Agreement shall not be amended, altered, or modified
---------
except by an instrument in writing duly executed by the Parties.
13
10.8 Variations in Pronouns. All personal pronouns used in this Agreement,
----------------------
whether used in masculine, feminine, or neuter gender, shall include all other
genders; singular shall include plural, and vice versa; and shall refer solely
to the parties signatory thereto except where otherwise specifically provided.
10.9 Cumulative Remedies. The rights, powers and remedies provided
-------------------
hereunder shall be cumulative, and the exercise of one or more of the provisions
hereof shall not preclude the exercise of any other provision hereof. Each of
the Parties confirms that damages at law may be an inadequate remedy for breach
or threatened breach of this Agreement and each Party agrees that, in the event
of a breach of any provisions hereof, the respective rights and obligations
hereunder shall be enforceable by specific performance, injunction or other
equitable remedy. Nothing herein contained is intended to, nor shall it, limit
or affect any right or rights at law, by statute or otherwise of the Party
aggrieved as against any other Party for a breach or threatened breach of any
provision hereof, it being the intention of the Parties that the respective
rights and obligations of the Parties hereunder shall be enforceable in equity
as well as at law or otherwise.
10.10 Governing Law; Resolution. The laws of the State of North Carolina
-------------------------
shall govern the validity of this Agreement, the construction and interpretation
of its terms.
10.11 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the Parties and supersedes any prior understanding or agreement among
them respecting the subject matter hereof. There are no representations,
arrangements, understandings or agreements, oral or written, among the Parties
hereto relating to the subject matter of this Agreement, except those fully
expressed herein. Except as otherwise provided herein, no amendment, change or
modification of this Agreement or waiver of any provision hereof shall be valid
or binding on the Parties hereto, unless such amendment, change, modification or
waiver shall be in writing and signed by or on behalf of the Parties hereto, and
no waiver on one occasion shall be deemed to be a waiver of the same or any
other provision hereof in the future.
10.12 Successors. All the provision hereof shall inure to the benefit of
----------
and be binding upon the successors, legal representatives and assigns of the
Parties hereto. A Party's assignment of this Agreement must be approved in
writing by the other Party and such approval shall not be unreasonably withheld.
10.13 Notices. All notices or other communications required or permitted
-------
to be given pursuant to this Agreement shall be in writing and shall be mailed
by first class mail, certified or registered, postage prepaid or sent via a
nationally recognized overnight courier (e.g., FedEx) to the other Party at the
address set forth below. Notices are deemed received by a Party when the Party
or its agent receives such Notice. Any Party may change its address by giving
notice in writing stating its new address to the other Party.
CFN 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
IFN 000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
14
10.14 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original but all of which shall
constitute one instrument. Any counterpart of this Agreement may be executed by
facsimile, and any such contepart will be deemed to be an original document.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
day and year first above written.
CAROLINAS FIBERNET, LLC
By: DUKENET COMMUNICATIONS, INC., By: PALMETTONET, INC.,
Member Member
By: /s/ X.X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------- -----------------------
Its: President Its: President
----------------------- -----------------------
By: CARONET, INC., By: ACCESS/ON
Member INTEREXCHANGE
SERVICES, INC.,
Member
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------- -----------------------
Its: General Manager Its: Treasurer
----------------------- -----------------------
INTERSTATE FIBERNET, G.P.
By: /s/ Xxxx Xxxxxxx
------------------------
Its: VP/CFO and Managing Ptr
------------------------
15
SCHEDULES 3.1(a) and 3.1(b)
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
====================================================================
Access/ON AVAILABLE AVAILABLE
DSI'S AS OF DS3'S AS OF
1/22/96 1/22/96
--------------------------------------------------------------------
Concord - Charlotte POC [__] [__]
--------------------------------------------------------------------
Concord - High Point [__] [__]
--------------------------------------------------------------------
Concord - Lexington [__] [__]
--------------------------------------------------------------------
Lexington - High Point [__] [__]
--------------------------------------------------------------------
Lexington - Reeds [__] [__]
--------------------------------------------------------------------
Reeds- Xxxxxxxx [__] [__]
--------------------------------------------------------------------
Xxxxxxxx - Xxxxxxxx [__] [__]
--------------------------------------------------------------------
Xxxxxxxx - Xxxxxxx [__] [__]
--------------------------------------------------------------------
Xxxxxxx- Levels Cross [__] [__]
--------------------------------------------------------------------
Levels Cross - Courtney [__] [__]
--------------------------------------------------------------------
Xxxxxxxx - Lexington [__] [__]
====================================================================
=====================
Page 1 of 5
=====================
SCHEDULES 3.1(a) and 3.1(b)
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
=====================================================================
AVAILABLE AVAILABLE
DSI'S AS OF DS3'S AS OF
CARONET 1/22/96 1/22/96
---------------------------------------------------------------------
Xxxxxxx - Xxxxxxx [_] [_]
---------------------------------------------------------------------
Raleigh - Fayetteville [_] [_]
---------------------------------------------------------------------
Fayetteville - Laurinburg [_] [_]
---------------------------------------------------------------------
Laurinburg - Xxxxxxxx [_] [_]
---------------------------------------------------------------------
Xxxxxxxx - Winter Park [_] [_]
---------------------------------------------------------------------
Xxxxxxxx - Lumberton [_] [_]
---------------------------------------------------------------------
Lumberton - Winter park [_] [_]
---------------------------------------------------------------------
Lumberton - Wilmington [_] [_]
---------------------------------------------------------------------
Winter Park - Wilmington [_] [_]
---------------------------------------------------------------------
Wilmington - Jacksonville [_] [_]
---------------------------------------------------------------------
Jacksonville - New Bern [_] [_]
---------------------------------------------------------------------
New Bern - Kinston (Xxxxxxx) [_] [_]
---------------------------------------------------------------------
Kinston (Xxxxxxx) - Goldsboro [_] [_]
---------------------------------------------------------------------
Goldsboro - Raleigh [_] [_]
---------------------------------------------------------------------
Goldsboro - Selma [_] [_]
---------------------------------------------------------------------
Selma - Raleigh [_] [_]
=====================================================================
=====================
Page 2 of 5
=====================
SCHEDULES 3.1(a) and 3.1(b)
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.***
====================================================================
AVAILABLE AVAILABLE
DUKENET DSI'S AS OF DS3'S AS OF
1/22/96 1/22/96
--------------------------------------------------------------------
Worldcom - Raleigh [_] [_]
--------------------------------------------------------------------
Raleigh- RTP [_] [_]
--------------------------------------------------------------------
RTP - Xxxx Raven [_] [_]
--------------------------------------------------------------------
Xxxx Raven - N. Greensboro [_] [_]
--------------------------------------------------------------------
N. Greensboro - Xxxxxxxxxx [_] [_]
--------------------------------------------------------------------
Xxxxxxxxxx-Mocksville [_] [_]
--------------------------------------------------------------------
Mocksville - XxXxxxx [_] [_]
--------------------------------------------------------------------
XxXxxxx - Xxxxxxxxx-College St. [_] [_]
--------------------------------------------------------------------
Charlotte-College St. - Catawba [_] [_]
--------------------------------------------------------------------
Catawaba - Pacolet [_] [_]
--------------------------------------------------------------------
Pacolet - N. Greenville [_] [_]
--------------------------------------------------------------------
N. Greenville - Greenville-XxXxx [_] [_]
--------------------------------------------------------------------
Xxxxxxxxxx - Xxxxxxx Salem [_] [_]
--------------------------------------------------------------------
N. Greenville - Spartanburg [_] [_]
--------------------------------------------------------------------
Catawba-Rock Hill [_] [_]
====================================================================
=====================
Page 3 of 5
=====================
SCHEDULES 3.1(a) and 3.1(b)
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
=====================================================================
AVAILABLE AVAILABLE
PALMETTONET DSI'S AS OF DS3'S AS OF
1/22/96 1/22/96
---------------------------------------------------------------------
Carowinds - Rock Hill [_] [_]
---------------------------------------------------------------------
Rock Xxxx - Xxxxxxx [_] [_]
---------------------------------------------------------------------
Xxxxxxx -X. Xxxxxx [_] [_]
---------------------------------------------------------------------
X. Xxxxxx - Columbia [_] [_]
---------------------------------------------------------------------
X. Xxxxxx - Xxxxxxxx [_] [_]
---------------------------------------------------------------------
Xxxxxxxx - Xxxxxx Beach [_] [_]
---------------------------------------------------------------------
Columbia - St Xxxxxx [_] [_]
---------------------------------------------------------------------
St. Xxxxxx - Charleston [_] [_]
---------------------------------------------------------------------
St. Xxxxxx - Walterboro [_] [_]
---------------------------------------------------------------------
Walterboro - Yemassee [_] [_]
---------------------------------------------------------------------
Yemassee - Beaufort [_] [_]
---------------------------------------------------------------------
Yemassee - Xxxxxx Station [_] [_]
---------------------------------------------------------------------
Xxxxxx Station - Pritchardville [_] [_]
---------------------------------------------------------------------
Rock Xxxx- Xxxxxxx [_] [_]
---------------------------------------------------------------------
St. Xxxxxx - Orangeburg [_] [_]
---------------------------------------------------------------------
Xxxxxx Station - Savannah [_] [_]
---------------------------------------------------------------------
Clemson - Xxxxxxxx [_] [_]
---------------------------------------------------------------------
Xxxxxxxx - Xxx Xxxx [_] [_]
---------------------------------------------------------------------
Xxx Xxxx-Xxxxxxxxx [_] [_]
=====================================================================
=====================
Page 4 of 5
=====================
================================================================================
AVAILABLE AVAILABLE
PALMETTONET DSI'S AS OF DS3'S AS OF
1/22/96 1/22/96
--------------------------------------------------------------------------------
Xxx Xxxx - Hickory Tavern [_] [_]
--------------------------------------------------------------------------------
Hickory Tavern - Xxxxxxx [_] [_]
--------------------------------------------------------------------------------
Columbia - X. Xxxxxx [_] [_]
--------------------------------------------------------------------------------
Moncks Corner - Charleston [_] [_]
--------------------------------------------------------------------------------
X. Xxxxxx - Moncks Corner [_] [_]
--------------------------------------------------------------------------------
Rock Hill-Catawaba [_] [_]
================================================================================
--------------------
PAGE 5 OF 5
--------------------
IFN AVAILABLE CAPACITY REPORT
-----------------------------
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.***
Atlanta North Route
----------------------------------------------------------------------------------------------
Cross Section Atlanta Xxxxxx Xxxxxxxx Tocca Gainesville Winder
Xxxxxx Xxxxxxxx Tocca Gainesville Atlanta Athens
----------------------------------------------------------------------------------------------
DS3's Free [_] [_] [_] [_] [_] [_]
----------------------------------------------------------------------------------------------
Atlanta-Columbus Route
----------------------------------------------------------------------------------------------------------------------------------
Cross Section Atlanta Xxxxx Xxxxxx LaGrange West Point Atlanta Xxxxx West Point Opelika
Xxxxx Xxxxxx LaGrange West Point Columbus Columbus Carrollton Opelika Auburn
----------------------------------------------------------------------------------------------------------------------------------
DS3's Free [_] [_] [_] [_] [_] [_] [_] [_] [_]
----------------------------------------------------------------------------------------------------------------------------------
Atlanta-Birmingham
----------------------------------------------------------------------------------------------------------------------
Cross Section Atlanta Xxxxx Anniston Pell City Leeds Birmingham Wilsonville Anniston
Xxxxx Anniston Pell City Leeds Birmingham Wilsonville Atlanta Gadsden
----------------------------------------------------------------------------------------------------------------------
DS3's Free [_] [_] [_] [_] [_] [_] [_] [_]
----------------------------------------------------------------------------------------------------------------------
Birmingham-Longview Tx
--------------------------------------------------------------------------------------------
Cross Section Birmingham Xxxx Meridian Xxxxxxx Choudrant Sheveport
Xxxx Meridian Xxxxxxx Choudrant Shreveport Longview
--------------------------------------------------------------------------------------------
DS3's Free [_] [_] [_] [_] [_] [_]
--------------------------------------------------------------------------------------------
Birmingham-Longview Spurs
----------------------------------------------------------------------------------------------------------------
Cross Section Xxxx UAB Tuscaloosa APCo Meridian Hattisburg Choudrant Xxxxxxx
UAB Tuscaloosa APCo Xxxx Gulfport Gulfport Monroe Vicksburg
----------------------------------------------------------------------------------------------------------------
DS3's Free [_] [_] [_] [_] [_] [_] [_] [_]
----------------------------------------------------------------------------------------------------------------
Xxxxxxx-Xxxxxxx Ring
----------------------------------------------------------------
Cross Section Xxxxxxx LDDS MCI Entergy
LDDS MCI Entergy Xxxxxxx
----------------------------------------------------------------
DS3's Free [_] [_] [_] [_]
----------------------------------------------------------------
As of 6/12/96
SCHEDULE 3.5
Initial Stated Compensation Rate Schedule
***INFORMATION IN THIS SCHEDULE HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.***
Basic Schedule [______________]
------------------------------
When DS-1 Capacity is Provided When DS-3 Capacity is Provided
Tier I [___] Tier I [____]
Tier II [___] Tier II [____]
Tier III [___] Tier III [____]
Modified Schedule [_____________________________________________]
----------------------------------------------------------------
When DS-1 Capacity is Provided When DS-3 Capacity is Provided
Tier I [_____] Tier I [_____]
Tier II [_____] Tier II [_____]
Tier III [_____] Tier III [_____]
Designated Tier I Cities for Stated Compensation Purposes
---------------------------------------------------------
Columbia, South Carolina
Charlotte, North Carolina
Greensboro, North Carolina
Greenville, South Carolina
Winston-Salem, North Carolina
Raleigh, North Carolina
[_______________________________________________________________________________
________________________________________________________________________________
_____________].
Exhibit 7.4
***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. ***
II. Interuption Credits
-----------------------
================================================================================
Customer Interruption Credit
--------------------------------------------------------------------------------
A In excess of 2 hours,
[_______] times Contract Rate\2\
-----
--------------------------------------------------------------------------------
B 5 mins. to 2 hours-[_] times Contract Rate
-----
2 hours-3 hours-[_] times Contract Rate
-----
3 hours-4 hours-[__] times Contract Rate
-----
4 or more hours-[__] times Contract Rate
-----
---------------------------------------------------------------------------
C 30 mins. or less-[_]times Contract Rate
-----
30 mins.-1 hour-[_]times Contract Rate
-----
each hour above 1 hour-additional [_]times Contract Rate
-----
(capped at [_] times Contract Rate for a single outage)
-----
-----------------------------------------------------------------------------
D [_____]for each half year times Contract Rate
-----
-----------------------------------------------------------------------------
E [_____]for each half year times Contract Rate
-----
-----------------------------------------------------------------------------
F 10 mins. to 2 hours-[_] times Contract Rate
-----
2 hours-12 hours-[_] times Contract Rate
-----
12 hours-24 hours-[__] times Contract Rate
-----
24 hours or more-[__] times Contract Rate
-----
================================================================================
_______________________________
\1\ Explanation of Outage Denominator: [___________________________________
-----
______________________________________________________________________________]
-----
\2\ Contract Rate means the monthly rate such customer pays.
