Exhibit 10.8
MASTER CAPACITY LEASE
This lease is entered into on the 22 day of July, 1996, by and between
Interstate FiberNet, acting on its own behalf and on behalf of any other
underlying provider of service identified on any Service Order (as defined in
the next paragraph) as "Provider" ("Lessor"), and InterCel PCS Services,
Inc.("Lessee"). Lessee desires to obtain nonswitched fiber optic transmission
capacity and ancillary services as described below ("Service") from Lessor, and
Lessor is willing to provide the Service pursuant to the terms and conditions
set forth herein.
NOW, THEREFORE, Lessee and Lessor hereby mutually agree as follows:
SERVICE, TERMS AND RATES: Lessor agrees to provide and Lessee agrees
to purchase the Service for the price(s) and subject to the terms and conditions
set forth herein. Attached hereto and incorporated herein by reference are
service descriptions (each referred to herein as a "Service Order") containing
details applicable to the Service to be provided under this Lease. Additional
Service Orders may be prepared by Lessee and Lessor from time to time and,
subject to execution by Lessee and acceptance by Lessor, shall be binding upon
Lessor and Lessee and shall be deemed a part of this Lease. Each Service Order
shall describe a level of Service and the two points of presence ("POPs") of
Lessor between which such Service is to be provided. Each Service Order shall
also set forth the "Requested Service Date," the term of this Lease applicable
thereto (the "Service Order Term"), the monthly charges ("Aggregate Monthly
Charges") for the Service, and any other charges, including, but not limited to,
installation, multiplexing, and
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other recurring and nonrecurring charges. Discounts and minimum charges, if any,
applicable to the rates for the Service are each set forth in Schedule 1
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attached hereto and incorporated by reference. It is the responsibility of the
Lessee to obtain interconnection from Lessor's POPs described in each Service
Order to Lessee's facility. Lessor shall not be responsible for delays in the
provisioning of this interconnection and shall not postpone billing if this
interconnection is not provided by the Requested Service Date contained in each
Service Order. Lessee shall pay all Aggregate Monthly Charges billed by Lessor
during any such period of delay.
INTERSTATE FIBERNET InterCel PCS Services, Inc.
(Lessee's Corporate Name)
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Gowton Xxxxxxxx
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(Authorized Representative) (Authorized Representative)
Name: Xxxxxxx Xxxxxxx Name: Gowton Xxxxxxxx
-------------------------- --------------------------
(Print) (Print)
Title: VP/CFO Title: V.P. Engineering
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Date: 7/22/96 Date: 7/22/96
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Full Business Address: Full Business Address:
X.X. Xxx 000 1239 X. X. Xxxxxxx Drive
000 Xxxx 0xx Xxxxxx Xxxx Xxxxx, Xxxxxxx 00000
Xxxx Xxxxx, Xxxxxxx 00000 -------------------------------
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Additional Terms and Conditions
1. TERM: The Term of this Lease shall commence on June 1, 1996,
("Commencement Date"), and unless earlier terminated in accordance with
Section 3 hereof, shall continue until 12:01 A.M. on the third (3rd) anniversary
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of the Commencement Date (the "Initial Term"). This Lease shall be automatically
extended for successive renewal terms of one (1) year each (each, a "Renewal
Term") unless either party delivers written notice to the other party of its
intent to terminate this Lease 90 days prior to the expiration of the Initial
Term or any Renewal Term.
2. PAYMENT AND TAXES:
2A. Lessee agrees to pay Lessor, due monthly in advance,
commencing on the first day of the first month immediately following the Service
Date (as defined below) and on the first day of each month thereafter (the "Due
Date"), Aggregate Monthly Charges as set forth on each Service Order; provided,
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however, that the first such payment under each Service Order shall be for the
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period from the Service Date through the end of the next full month and shall be
due on the first day of the full month billed. (Example: a Service Order with
Service Date of February 12 would first be billed on the March invoice for the
period February 12 - March 31 with payment due March 1.) Installation and other
nonrecurring charges contained under "Service Charges" on each Service Order
shall be due with such first payment. "Service Date" shall mean the later of the
Requested Service Date set forth in the applicable Service Order or the date on
which Service under the applicable Service order first becomes available between
Lessor's POPs but in no event shall the Service Date be more than 30 days after
the Requested Service Date. If payment for any charges due hereunder is not
received by Lessor within thirty (30) days after the first day of the relevant
month, the balance due and unpaid shall thereafter be subject to a late payment
charge on such delinquent amounts at the rate of 1-1/2% per month or the maximum
lawful rate allowable under applicable law, whichever is lower.
2B. Lessee shall also pay any applicable federal, state or local
use, excise or sales taxes in connection with the Service furnished to Lessee
pursuant hereto. Furthermore, Lessor and Lessee shall cooperate in taking all
reasonable actions necessary to minimize, or to quality for exemptions from, any
such taxes, duties or liabilities, including the furnishing of certifications
that purchases by Lessee are for purposes of resale.
2C. Lessee acknowledges and agrees that Lessor may change the
Aggregate Monthly Charges applicable to any Service at any time after the
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expiration of the initial Service Order Term specified in the applicable Service
Order upon thirty (30) days prior written notice to Lessee.
3. EARLY TERMINATION
3A. This Lease may be terminated by either party, at any time,
without liability to the other party, upon ten (10) days prior written notice to
the other party upon the occurrence of any of the following: (i) the failure of
the non-terminating party generally to pay its debts as such debts become due,
the admission by such party in writing of its inability to pay its debts as such
debts become due, or the making by such party of any general assignment for the
benefit of creditors; (ii) the commencement by the non-terminating party of any
case, proceeding, or other action seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, or reorganization, or relief of debtors,
or seeking appointment of a receiver, trustee, custodian, or other similar
official for it or for all or any substantial part of its property; or (iii) the
commencement of any case, proceeding or other action against the non-terminating
party seeking to have any order for relief entered against such party as debtor,
or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of such party or its debts under any law relating to bankruptcy,
insolvency, reorganization, or relief of debtors, or seeking appointment of a
receiver, trustee, custodian, or other similar official for such party or for
all or any substantial part of the property of such party, and (I) such party
shall, by any act or omission, indicate its consent to, approval of, or
acquiescence in such case, proceeding or action, or (II) such case, proceeding
or action results in the entry of an order for relief which is not fully stayed
within seven business days after the entry thereof, or (III) such case,
proceeding, or action remains undismissed for a period of thirty (30) days or
more or is dismissed or suspended only pursuant to Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code or any corresponding provision of any future United
States Bankruptcy law.
3B. Upon thirty (30) days prior written notice, either party shall
have the right, without liability to the other, to terminate this Lease as to
any Service Order if any material rate or term contained herein and relevant to
the Service covered by such Service Order is substantially changed (to the
detriment of the terminating party) or is found to be unlawful or the
relationship between the parties hereunder is found to be unlawful, in each case
by order of the highest court of competent jurisdiction to which the matter is
appealed, of the Federal Communications Commission ("FCC"), or of any other
local, state or federal government authority of competent jurisdiction.
3C. Lessee may cancel this Lease with respect to any Service Order
for on-net circuits as detailed in Schedule 3, without being subject to any
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termination charge or other payment, by written notice of such cancellation
given to Lessor not less than thirty (30) days prior to the date of such
cancellation, if: (i) due to no fault of Lessee, Service between Lessor's POPs
requested in such Service Order does not become first available on or before the
thirtieth (30th) day following the Requested Service Date set forth in such
Service Order; or (ii) the Service provided under this Lease with respect to
such Service Order is the subject of a continuous interruption in excess of
twelve (12) hours or a cumulative twenty-four (24) hours in a six month period
excluding a force majeure interruption detailed in Section 10 below; (iii) the
Service provided under this Lease with the respect to an individual circuit that
experiences two or more interruptions within a forty-five (45) day period; or
(iv) the Service provided under this Agreement does not meet or exceed the
Standards as defined in Section 8.
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4. SUSPENSION OR EARLY TERMINATION OF SERVICE: When payment in full
is not made by Lessee on or before any due date, Lessor, in its sole discretion,
shall have the right if the Customer does not cure the non-payment, on or before
the thirtieth (30th) calendar day after Lessor has given Lessee written notice
of nonpayment, to do either of the following: to suspend temporarily Service to
Lessee (either completely or only with respect to any affected Service Orders)
until such time as Lessee has paid all arrearages, including any interest as
specified herein, or to terminate Service (either completely or only with
respect to any affected Service Orders). Further, the Service provided Lessee is
subject to the condition that it not be used for any unlawful purpose or in any
unlawful manner, and Service may be terminated or suspended by Lessor (either
completely or only with respect to the affected Service Order(s)), at Lessor's
option, if any such prohibited use occurs. During any such temporary suspension,
and upon any such termination by Lessor, no Interruption (as defined in
Section 7) shall be deemed to occur for the purposes of Section 7 hereof.
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5. SYSTEM MAINTENANCE: Subject to the provisions of Section 7
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hereof, Lessor represents that system maintenance normally will not result in
Interruptions, and that in the event that system maintenance should require the
Interruption of Service, to the extent reasonably possible, it shall be
accomplished only after prior notification to Lessee and will be completed
within a reasonable period of time.
6. AUTOMATIC RENEWAL: Upon the expiration of the initial Service
Order Term specified in each Service Order, or of any extension thereof, this
Lease shall continue in effect with respect to the Service covered thereby on a
month-to-month basis upon the same terms and conditions unless terminated by
either party upon thirty (30) days prior written notice; provided, however, that
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Lessor may change the Monthly Charges applicable thereto pursuant to Section 2C
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hereof.
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7. ALLOWANCE FOR INTERRUPTION OF SERVICE ON-NET CIRCUITS: An
"Interruption" means any two (2) second interval with a complete interruption of
transmission or a bit error rate worse than 1 X 10/-9/ for a particular
communications path within a route between Lessor's two POPs as shown on a
Service Order (a "Route"). In the event of an Interruption in the Service
provided under this Lease, allowance for the period of Interruption with respect
to each Route (under one or more Service Orders) affected by such Interruption,
if not due to the fault or negligence of the Lessee, shall be as follows:
7A. No credit shall be allowed for an interruption of six (6)
hours or less in the case of a Catastrophic Interruption, or of two (2) hours or
less in the case of a Non-Catastrophic Interruption. Lessee shall be credited
for an Interruption in excess of six (6) hours or two (2) hours, as the case may
be, at the rate of 1/1440 of the Aggregate Monthly Charges (as set forth under
"Service Charges" in each Service Order) applicable to the Service which is
subject to the Interruption for each half hour or major fraction thereof that an
Interruption continues, such Interruption to be measured from (i) the time of
notice by Lessee to Lessor that an Interruption has occurred to (ii) the time of
restoration, an "Interruption Allowance". For purposes of the foregoing,
"Catastrophic Interruption" includes a complete cable cut, an equipment
enclosure fire, an explosion, or any other circumstance of an extraordinary and
catastrophic nature, and "Non-Catastrophic Interruption" includes all
Interruptions other than Catastrophic Interruptions. Lessor agrees to modify the
Interruption Allowance for circuits provision on self-healing rings.
7B. When Service provided for a Route (under one or more Service
Orders) includes more than one communications path, the Interruption Allowance
shall apply only to the path(s) interrupted.
7C. An Interruption allowance shall not be applicable for any
period during which Lessee fails to afford reasonable access to any facilities
for the purpose of investigating and clearing troubles.
8. WARRANTY LIMITATION OF LIABILITY: Lessor's liability arising
out of delays in installation, commencement or restoration of the Service to be
provided under this Lease or out of mistakes, accidents, omissions,
interruptions, delays, errors or defects in transmission in the provision of
Service hereunder shall in no event exceed the amount of the allowance, if any,
available under Section 7 hereof. Without limiting the foregoing, Lessor shall
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have no obligation to provide alternative routing with respect to any Service
provided pursuant to this lease. SUBJECT TO SECTION 7, IN NO EVENT SHALL LESSOR
BE LIABLE TO THE LESSEE OR LESSEE'S CUSTOMERS OR CLIENTS OR TO ANY OTHER
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PERSON, FIRM OR ENTITY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY
DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL,
PUNITIVE, OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE
WHATSOEVER, ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTION,
OR DEFECTS IN TRANSMISSION, OR DELAYS, INCLUDING THOSE WHICH MAY BE CAUSED BY
REGULATORY OR JUDICIAL AUTHORITIES, ARISING OUT OF OR RELATING TO THIS LEASE OR
THE OBLIGATIONS OF LESSOR PURSUANT TO THIS LEASE. EXCEPT AS SET FORTH IN
SCHEDULE 5 OR IN SECTION 5 HEREOF, LESSOR MAKES NO WARRANTY, WHETHER EXPRESS,
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IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICE, OR THE LOCAL ACCESS, OR
AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY LESSOR ARE HEREBY EXCLUDED
AND DISCLAIMED. SEE SCHEDULE 5 WHERE INDUSTRY STANDARDS ARE DETAILED.
9. TERMINATION LIABILITY: Except as set forth in Section 3 above, if
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Lessee cancels any Service Order (or any Service covered thereby) during its
Service Order Term, a termination liability equal to the lesser of six months of
the Aggregate Monthly Charges or the full amount of the Aggregate Monthly
Charges applicable to the remainder of the Service Order Term for such Service
Order (or for such Service covered thereby) shall be immediately due, owing and
payable without demand by Lessee.
10. FORCE MAJEURE:
10A. Except as provided in Section 10B below, Lessor shall not
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be liable for any failure of performance hereunder due to causes beyond its
reasonable control, including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, storm or other similar catastrophes; any law, order,
regulation, direction, action or request of the United States Government, or of
any other government, including state and local governments having jurisdiction
over either of the parties, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more of said
governments, or of any civil or military authority; national emergencies;
insurrections, riots, or wars; or strikes, lockouts, work stoppages or other
labor disputes or difficulties.
10B. If such failure of performance shall be on the part of
Lessor and shall be for: (i) thirty (30) days or less, then this Lease shall
remain in effect with no liability for either party and no charge to Lessee for
the period of such failure of performance; and (ii) more than thirty (30) days,
then this Lease shall be canceled with no liability on the part of either Lessor
or Lessee.
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11. LIMITATIONS OF SERVICE: Notwithstanding any other provision of
this Lease, this Lease applies only to Service provided to Lessee, and shall
not apply to offerings by Lessee of services to Lessee's customers. The
provision of Service by Lessor as set forth in this Lease does not constitute a
joint undertaking with Lessee for the furnishing of any service to customers of
Lessee. Whenever Service provided by Lessor under this Lease is connected to
facilities provided by another person or entity, the regulations, terms and
charges of such other person or entity shall apply for the facilities provided
by such other person or entity. Services provided to Lessee under this Lease
may be connected to other facilities of Lessee between certain locations and
thereby constitute a portion of end-to-end service furnished by Lessee to its
customers. Lessor does not undertake to transmit messages, or to offer any
telecommunications services to any person or entity other than Lessee, under the
Lease.
12. INTER-CARRIER LEASE: Lessor and Lessee agree that this Lease, to
the extent it is subject to FCC regulation, is an inter-carrier agreement which
is not subject to the filing requirements of Section 211(a) of the
Communications Act of 1934 (47 U.S.C. (S) 211(a)) as implemented in 47 C.F.R.
(S) 43.51.
13. TRADE NAMES: Neither Lessee or Lessor shall, without the other
party's prior written consent: (i) use the other party's name in promotional,
advertising or other materials, or (ii) use the other party's logos, trade
marks, capacity marks, or any variations thereof in any of its promotional,
advertising or other materials.
14. ADDITIONAL PROVISIONS:
14A. Nothing in this Lease shall be deemed to create any
relationship between Lessor and Lessee other than that of independent parties
contracting with each other solely for the purpose of carrying out the
provisions of this Lease. Neither of the parties hereto shall be deemed or
construed, by virtue of this Lease, to be the agent, employee, representative,
partner, or joint venturer of the other. Neither party is authorized, by virtue
of this Lease, to represent the other party for any purpose whatsoever without
the prior written consent of the other party.
14B. In connection with the matters provided for in this Lease,
each party hereto shall comply with all applicable laws and regulations,
including, but not limited to, the Communications Act of 1934, as amended, and
the policies, rules and regulations of the FCC.
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14C. Neither the waiver by either of the parties hereto of a
breach or a default under any of the provisions of this Lease, nor the failure
of either of the parties, on one or more occasions, to enforce any of the
provisions of this Lease or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.
14D. Lessee hereby agrees to indemnify, defend and hold harmless
Lessor and its affiliates, and their respective employees, officers, directors
and agents (collectively, "Lessor Indemnified Persons") from and against and in
respect of all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including, without limitation,
interest, penalties and attorneys' fees and disbursements (collectively,
"Claims"), to the extent any such Claim is asserted by any third party, person
or entity, against, resulting to, imposed upon or incurred by the Lessor
Indemnified Person, directly or indirectly, by reason of or resulting from any
misrepresentation or noncompliance with any covenant, condition or other
agreement, given or made by Lessee in or pursuant to this Lease.
14E. In the event suit is brought or an attorney is retained by
any party to this Lease to enforce the terms of this Lease or to collect money
due hereunder, the prevailing party shall be entitled to recover, in addition
to any other remedy, reimbursement for reasonable attorney fees, court costs,
costs of investigation and other related expenses incurred in connection
therewith.
14F. For purposes of Sections 8 and 11, the term "Lessor" shall
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be deemed to include Lessor and (i) any person or entity (including any partner,
stockholder, director, officer, employee or agent of Lessor) assisting Lessor in
its performance pursuant to this Lease and (ii) in the event that a "Provider"
other than Interstate FiberNet is designated in the applicable Service Order,
Interstate FiberNet, as agent for such designated Provider. For purposes of
Sections 10, 13, 14D and 14E, the term "Lessor" shall also be deemed to include
----------- -- --- ---
Interstate FiberNet in the event that a "Provider" other than Interstate
FiberNet is designated in the applicable Service Order.
14G. This Lease shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns;
provided, however, neither party may shall not assign or transfer its rights or
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obligations under this Lease without the prior written consent of the other
party hereto, which consent shall not be unreasonably withheld.
14H. All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by any party to any
other
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party pursuant to this Lease shall be in writing and shall be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery (including delivery by courier) to the
person whose name and business address appears under each party's signature line
on page 2 of this Lease. Each party may designate by notice in writing a new
person and/or address to which any notice, demand, request or communication may
thereafter be so given, served or sent. Each notice, demand, request, or
communication which shall be mailed, delivered or transmitted in the manner
described above shall be deemed sufficiently given, served, sent and received
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a facsimile) the confirmation being deemed conclusive (but not
exclusive) evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
14I. If the Service is provided solely within a single state in a
manner which subjects the Service to regulation by any state, then the terms and
conditions of the Service and of this Lease shall be subject to such regulations
and to any addendum to this Lease relating thereto which is executed by Lessor
and Lessee.
14J. The Service provided by Lessor as set forth in each separate
Service Order attached hereto is severable, and upon termination of the Service
with respect to any Service Order (upon expiration of the Service Order Term
thereof or pursuant to the provisions of Sections 3B, 3C, 4, or 9 hereof), the
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Service with respect to other Service Orders shall continue unaffected.
14K. This Lease (including all Service Orders and Schedule 1 hereto)
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constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for herein.
The terms of this Lease may only be amended or modified by an instrument in
writing executed by the parties hereto.
14L. If any part of any provision of this Lease or any other
agreement, document or writing given pursuant to or in connection with this
Lease 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 this Lease
and the parties hereby agree to negotiate with respect to any such invalid or
unenforceable part to the extent necessary to render such part valid and
enforceable.
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14M. 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 Lease against either of the parties
hereto, and that the covenants, undertakings, and agreements set forth in this
Lease shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto or their respective successors and assigns as permitted
hereunder.
14N. This Lease, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
in accordance with the laws of Georgia (but not including the choice of law
rules thereof).
14O. The terms and provisions contained in this Lease that by their
sense and context are intended to survive the performance thereof by the parties
hereto shall so survive the completion of performance and termination of this
Lease, including, without limitation, provisions for indemnification and the
making of any and all payments due hereunder.
14P. Section and subsection headings contained in this Lease are
inserted for convenience of reference only, shall not be deemed to be a part of
this Lease for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof. All pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or entity may require.
14Q. Customer appoints Xxxxxx X. Xxxxx as its "Contract
Administrator." IFN appoints Xxxx Xxxxxxx as its "Contract Administrator."
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Schedule 1
SERVICE ORDER
Master Capacity Lease No.: Date of Master Capacity Lease:
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The following order for service on the specified terms and conditions herein is
made by the undersigned Lessee pursuant to the Master Capacity Lease referred to
above ("Master Capacity Lease").
Date:
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Provider:
--------------------------------
(If no other "Provider" is named, Interstate FiberNet shall be the Provider of
Service for purposes of this Service Order.)
PON:
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I. CAPACITY. Under this Lease, Lessor will provide the following capacity
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and ancillary services between its Points of Presence in the following cities:
Capacity Requested Service
City A City Z Description Quantity Date
------ ------ ----------- -------- ----
II. SERVICE CHARGES
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A. Aggregate Monthly Charges: $ per month
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(of which amount, $ are charges for capacity and
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$ are charges for ancillary services)
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B. Non-Recurring Charges: $
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C. Discounts Applicable? Yes No
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If yes, the applicable discounts are set forth on Schedule 1.
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D. Monthly Minimums Applicable? Yes No
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If yes, the applicable monthly minimum charges are set forth on
Schedule 1.
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III. TERMS OF PAYMENT. Monthly in advance, on the first day of each month, as
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more fully described in the Master Capacity Lease. Any payment not received on
or before the required payment date as specified in the Master Capacity Lease
shall be subject to a late payment charge, also specified therein.
IV. SERVICE ORDER TERM. years (or months) from the Service Date.
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V. BASIC AGREEMENT. This Service Order is hereby incorporated in its entirety
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into the Master Capacity Lease, and is hereby executed by the respective parties
hereto as of _________, 1996.
LESSEE:
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By: /s/ Gowton Xxxxxxxx
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Name: Gowton Xxxxxxxx
Title: V.P. Engineering
LESSOR:
INTERSTATE FIBERNET
If this block is executed by Interstate
FiberNet, Interstate FiberNet shall be By:
the Provider of Service --------------------------------
Name:
Title:
If this block is executed by Interstate -----------------------------------
FiberNet, the Provider of Service shall PROVIDER
be the party so designated in this
Service Order, and Interstate FiberNet By: INTERSTATE FIBERNET
shall be acting on behalf of such Provider, AGENT
as agent.
By:
---------------------------------
Name:
Title:
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Schedule 2
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Discounts and Minimums Charges
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1. Discounts:
Prepayment Discount. Each Lessee agrees that it must pay for all Service
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rendered to it under this Lease, in advance, by the first day of each month
during the term hereof. Payments received by Lessor by the first day of the
month shall be subject to a 2% discount off the aggregate Monthly Charges for
such month.
Volume Discounts. A volume discount ("Volume Discount") shall apply to all
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Aggregate Monthly Charges owed under this Lease from the first dollar billed for
such month pursuant to the following Volume Discount schedule once the following
volume levels for services ordered by Lessee pursuant to this Lease or any other
agreement with IFN or Eastern Telecom d/b/a InterQuest ("InterQuest") are met:
Aggregate Charges and Fees Billed Volume Discounts
Pursuant to any Agreement on Aggregate Monthly
(calculated after all applicable Charges Billed
discounts Under this Lease
other than the Volume Discount
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Volume Discount Charges Billed
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$100,000 1% of $0-$150,000
$150,000 2% of $0-$250,000
$250,000 3% of ALL AGGREGATE
CHARGES
Amounts billed to the Lessee by IFN or InterQuest pursuant to agreements
other than this Lease for services provided by IFN or InterQuest to the Lessee
including, without limitation, Operator, SS7, and Directory Assistance Services,
shall be included in calculating the applicable Volume Discount level attained
by the Lessee for purposes of calculating the Volume Discount applicable to the
Aggregate Monthly Charges owed under this Lease, but the Volume Discount shall
not apply to any amounts that are billed pursuant to agreement other than this
Lease. (Example: if the aggregate charges and fees billed to the Lessee for
January pursuant to all agreements with IFN or InterQuest and this Lease are
$400,000 and the Aggregate Monthly Charges for January under this Lease are
$210,000, then Lessee would be entitled to a 3% discount on the $210,000.
Free Month Promotion. For on-net circuits, Lessee shall receive a credit
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equal to a free month in the 12th, 24th, and 36 month for DS-1, fractional XX-0,
XX-0, XX-0
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circuits. OC Service and services other than DS-1, fractional DS-3 and DS-3
Services shall not be eligible for the free month promotion. No free month will
be provided for an on-net circuit that is in service less than eleven (11)
months.
Fractional DS-3 Discount. A Fractional DS-3 discount shall apply to multiple
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on-net DS-ls serving the same InterLATA A to A City Pairs as follows:
Number of DS-ls to Same Discount Off Standard
InterLATA A to A Pairs InterLATA A to A City DS-1 Charge
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3-6 15%
7-10 22%
11 or more 30%
A Fractional DS-3 discount shall apply to multiple on-net DS-ls serving the
same IntraLATA A to B City Pairs as follows:
Number of DS-1s is to Same Discount Off Standard
IntraLATA A to B City Pairs IntraLATA A to B City DS-1 Charge
--------------------------- ---------------------------------
3-6 25%
7-10 32%
11 or more 40%
Network DS-Ramp up Incentive. For ON NET city pairs where Lessee requires
----------------------------
eight or more DS-ls between the same city pairs, Lessee will xxxx those XX-xx at
1/28th of the DS-3 rate per DS-1 for a maximum period of six months.
Cancellation is not permitted during the ramp up period. Beginning with the 7th
month from the date the first DS-1 is installed, Lessee agrees to pay the full
DS-3 rate and the six month minimum term shall begin for that DS-3.
2. Minimums
Minimum Commitment. Lessee agrees to pay Lessor Aggregate Monthly Charges of
------------------
not less than $75,000 ("Minimum Commitment"). Such Minimum Commitment is
calculated prior to any free month received for a circuit. This Minimum
Commitment will not begin until April 1997 (the "Initial Ramp Period":). This
Minimum Commitment may be met by xxxxxxxx generated by ON-NET and OFF-NET
xxxxxxxx as long as Lessor is the provider (defined as Lessor ordering and
billing) of greater than or equal to 95% (measured in dollars) of Lessee's
interexchange network requirements. However, in the event that Lessee can obtain
a OFF-NET circuit at a price below the price offered by the Lessor under this
Agreement, Lessor must (i) meet the lower price, or (ii) allow the Lessee to
lower its $75,000 Minimum Commitment by the monthly price of the circuit
"purchased" from another vendor. In no case shall the Minimum Commitment be
lowered below
16
$35,000 per month. If the Minimum Commitment is lowered, the Lessee shall still
receive the ON-NET pricing detailed on Schedule 4 through the term of this
Agreement.
In the event the Lessor purchases a circuit from another vendor subject to
the restrictions above, the Lessor will still be required to purchase 95%
(measured in dollars) of the Lessee's remaining interexchange network
requirements (excluding the circuits purchased from another vendor) from the
Lessor. Example: Lessee purchases a $6,000 circuit from another vendor as a
result of the Lessor not agreeing to meet a lower price. Lessee's total
interexchange network including the $6,000 circuit equals $80,000 a month.
Lessee would be required to buy at least $70,300 of their interexchange network
from Lessor (($80,000-6,000) X .95%) = $70,300).
Other Minimums. There shall be no minimum Service Order term requirements
--------------
for DS-1 Service. Each Service Order covering DS-3, or Fractional DS-3 Service
shall have a term of at least six months. Each Service Order covering OC Service
shall have a term of at least three years. Neither DS-1 nor DS-3 Service shall
be subject to circuit minimum lengths.
17
Deficiency Charge. In the event Lessee does not maintain the Minimum
-----------------
Commitment in the months indicated, then for those month(s) only, Lessee will
pay Lessor the difference between the Minimum Commitment for such month(s) and
the Aggregate Monthly Charges for such month(s) as described on each Service
Order, net of any applicable discounts (the "Deficiency Charge"). The Deficiency
Charge will be due at the same time payment is due for Service provided to the
Lessee, or immediately in an amount equal to the Minimum Commitment for the
unexpired portion of the Initial Term, if (i) Lessee terminates the Lease before
the expiration of the Initial Term unless Lessee terminates the Lease pursuant
to Section 3A or Section 3B of the Agreement, or (ii) Lessor terminates the
Lease pursuant to Section 4 of the Agreement.
--------------------------
3. Performance Clause Options.
A. In the event Lessee experiences delayed network implementation Lessor
will extend the Initial Ramp Period and contract period upon written notice by
Lessee to IFN and confirmation that Lessor has greater than or equal to 95% (as
measured in dollars) of Lessee's interexchange network services.
B. In the event Lessee experiences a "business slowdown" during the first
two years of this term agreement, Lessor will not enforce the MBVC revenue
commitment upon receiving written notice from Lessee that they cannot meet the
minimum due under the agreement. As condition of this section 3B, Lessor must be
the provider of greater than 95% (as measured in dollars) of Lessee's
interexchange network services including circuits purchased offnet to effect
redundancy in Lessee's network.
4. Restrictions
Lessee agrees that the services provided by Lessor will be used solely by
Lessee and shall not be resold.
Page 18
Schedule 3
----------
On-Net
Tier A, Tier B and Other Cities
Tier A Tier B
------ ------
Atlanta, GA * West Point, GA *
Birmingham, AL * LaGrange, GA *
Tuscaloosa, AL Newnan, GA *
Shreveport, LA Gainesville, GA
Monroe, LA Anniston, AL *
Greenville, SC Opelika, AL
Spartanburg, SC Auburn, AL
Raleigh, NC Gadsden, AL
Winston-Salem, N High Point, NC
Greensboro, NC Vicksburg, MS
Charlotte, NC Carrollton, GA
Asheville, NC Leeds, AL *
Gulfport, MS Pell City, AL *
Meridian, MS
Jackson, MS
Hattiesburg, MS
Other Cities -
------------
Columbus, GA *
Huntsville, AL
Athens, GA
* Ring Protected as of 1/1/96
19
Schedule 4
----------
Current Pricing
---------------
Tier A to Tier A Cities - ON-NET
--------------------------------
DS-1 Base Rate $0.102
DS-3 Base Rate $0.0501
Lessee acknowledges and agrees that it shall not be permitted to drop and insert
into a Tier B City within a Tier A to Tier A City Service Order.
Tier B to Tier B Cities and Tier A to Tier B Cities - ON-NET
------------------------------------------------------------
Except as set forth below, the base rate for Tier B Cities shall be the RBOC
tariffed rate in effect for the applicable Tier B Cities, less 25%, (the "Tier B
Rate"); provided, however, if Lessee provides documentation satisfactory to
-------- -------
Lessor establishing that a DS-1 or DS-3 circuit between two Tier B Cities or
from a Tier A City to a Tier B City, of comparable quality and mileage to
Lessor's, can be purchased at a rate lower than the applicable Tier B Rate,
Lessor will have the option to match such lower rate so long as such lower rate
is not less than the Tier A City Base Rate for such DS-1 or DS-3 Service;
provided, further, in no event shall Lessor be obligated to meet or beat any
-------- -------
such lower rates.
In the event that a carrier other than Lessor, the RBOC or any Local Exchange
Carrier provides fiber optic transport services to a Tier B City to which Lessor
is providing Service hereunder, the Lessee shall provide Lessor with the
opportunity to meet or beat any price(s) quoted to the Lessee by such carrier
for fiber optic transport service to such Tier B City; provided, however, in no
-------- -------
event shall Lessor be obligated to meet or beat such lower price(s).
With respect to the foregoing two paragraphs, in the event that Lessor does not
meet or beat such lower price, the Lessee shall have the right to disconnect any
existing circuit(s) to such Tier B City without incurring any termination charge
pursuant to Section 9 of this Lease, and, upon such disconnection, Lessor shall
---------
deduct from the monthly Minimum Commitment of Lessee, as of the beginning of the
next succeeding calendar month, an amount equal to the greater of such lower
price or the Tier A City Base Rate for DS-1 or DS-3 Service, as appropriate.
Page 20
Other City Pair Prices - ON-NET
-------------------------------
Atlanta, GA to Athens, GA
Atlanta, GA to Columbus, GA
Birmigham, AL to Huntsville, AL *
DS-1/DSO Mile $0.13
DS-3/DSO Mile $0.065
*Upon IFN's installation of a new electronics system from Birmingham to
Huntsville.
OC Pricing - ON-NET
-------------------
All OC Service shall be taken by Lessee at the optional level.
OC3 Service for fiber optic facilities 60 or more V&H miles long - $0.04/DSO
Mile.
OC12 Service for fiber optic facilities 60 or more V&H miles long - $0.036/DSO
Mile.
Prices for OC3 and OC12 fiber optic facilities less than 60 V&H miles long will
be negotiated in good faith by the parties hereto.
Offnet Capacity Pricing
-----------------------
Lessor will provide offnet capacity to Lessee at its direct cost plus 20%.
Lessor will provide Lessee the same terms and conditions that Lessor receives on
OffNet purchases. Current terms and conditions require a minimum of a 12 month
term on all circuits purchased from Sprint and a one month minimum term on the
circuits purchased form MCI, WorldCom and AT&T.
Initial Capacity
----------------
For a period of twelve months, Lessor will honor the pricing for the initial
capacity detailed on Schedule 6, required of Lessee.
----------
Installation Charges
--------------------
ON-NET - NONE
OFF-NET
Page 21
Actual installation charges incurred.
All installation charges are one time charges and non-recurring.
Page 22
Tier B City Pricing
POP Data
Birmingham
---------------------- ----------------------------
City Serving Wire Center
---------------------- ----------------------------
Birmingham, Alabama NPA-NXX 205-250
Alabama Power Company CLLI XXXXXXXX
Xxxxxxxxxxxx X-Xxxxx 0000
000 Xxxxx 00 Xxxxxx X-Xxxx 0000
ACTEL BRHMAL16RA
LATA 476
---------------------- ----------------------------
--------------------------------------------------------------------------------
DS-3 Rates DS-1 Rates
V&H Per DSO Per Month Per DSO
"Z" City Miles Mile Mile Per Month
--------------------------------------------------------------------------------
Gadsden 58 $0.280 $10,913.28 $0.600 $835.20
Newnan 117 $0.200 $15,724.80 $0.600 $1,684.80
Xx Xxxxxx 000 $0.200 $14,515.20 $0.600 $1,555.20
Xxxx Xxxxx 000 $0.300 $21,168.00 $0.600 $$1,512.00
Opelika 102 $0.159 $10,898.50 $0.400 $979.20
*Gainesville 180 $0.150 $18,144.00 $0.400 $1,728.00
Auburn 99 $0.300 $19,958.40 $0.600 $1,425.60
Pell City 31 $0.300 $6,249.60 $0.600 $446.40
Leeds 16 $0.300 $3,225.60 $0.600 $230.40
Anniston 58 $0.105 $4,092.48 $0.180 $250.56
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Special Services
--------------------------------------------------------------------------------
Monthly
Service Non-Recurring Recurring
--------------------------------------------------------------------------------
DS-3 DACS (where available) per port per month $100.00 $400.00
*Interconnection Fee per DS-3 $600.00
per DS-1 $90.00
Drop & Insert Service per location per month $400.00 $800.00
--------------------------------------------------------------------------------
Effective date January 1, 1996
TIER B CITY PRICING
POP DATA
JACKSON
----------------------------------- -----------------------------------
City Serving Wire Center
----------------------------------- -----------------------------------
Jackson, Mississippi NPA-NXX 601-352
000 Xxxx Xxxxxxx, Xxxxx 000 CLLI JCSNMSCP
Trustmark Xxxxxxxx X-Xxxxx 0000
X-Xxxx 0000
XXXXX JCSNMS58WLF
LATA 482
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DS-3 Rates DS-1 Rates
V&H Per DSO Per Month Per DSO
"Z" City Miles Mile Mile Per Month
--------------------------------------------------------------------------------
Vicksburg 40 $0.300 $8,064.00 $0.600 $576.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Special Services
--------------------------------------------------------------------------------
Monthly
Service Non-Recurring Recurring
--------------------------------------------------------------------------------
DS-3 DACS (where available) per port per month $100.00 $400.00
*Interconnection Fee per DS-3 $600.00
per DS-1 $90.00
Drop & Insert Service per location per month $400.00 $800.00
--------------------------------------------------------------------------------
Effective date January 1, 1996
Page 24
TIER B CITY PRICING
POP DATA
ATLANTA
----------------------------------- -----------------------------------
City Serving Wire Center
----------------------------------- -----------------------------------
Atlanta, Georgia NPA-NXX 404-221
Suite 300 CLLI ATLNGACS
00 Xxxx Xxxxx X-Xxxxx 0000
H-Cord 2085
ACTEL ATLNGAPKWA1
LATA 438
----------------------------------- -----------------------------------
--------------------------------------------------------------------------------
DS-3 Rates DS-1 Rates
V & H Per DSO Per Month Per DSO
"Z" City Miles Mile Mile Per Month
--------------------------------------------------------------------------------
Anniston 84 $0.105 $5,927.04 $0.180 $362.88
Gadsden 95 $0.200 $12,768.00 $0.400 $912.00
Xxxxxx 36 $0.300 $7,257.60 $0.400 $345.60
LaGrange 62 $0.277 $11,540.93 $0.600 $892.80
Xxxx Xxxxx 00 $0.300 $15,321.60 $0.600 $1,094.40
Opelika 96 $0.169 $10,902.53 $0.420 $967.68
*Gainesville 50 $0.287 $9,643.20 $0.600 $720.00
Xxxx Xxxx 000 $0.160 $11,827.20 $0.600 $1,584.00
Leeds 125 $0.140 $11,760.00 $0.600 $1,800.00
Auburn 101 $0.300 $20,361.60 $0.600 $1,454.40
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Special Services
--------------------------------------------------------------------------------
Monthly
Service Non-Recurring Recurring
--------------------------------------------------------------------------------
DS-3 DACS (where available) per port per month $100.00 $400.00
*Interconnection Fee per DS-3 $600.00
per DS-1 $90.00
Drop & Insert Service per location per month $400.00 $800.00
--------------------------------------------------------------------------------
Effective date January 1, 1996
Page 25
Schedule 5
IFN warrants that the service to be provided under this Agreement will be in
compliance with prevailing industry standards and with the following technical
specifications (collectively, the "Standards").
1. Availability Requirements:
. DS-3's 99.99% of the time
. DS-1's 99.97% of the time
2. Background bit/error rate ratio:
. DS-3's 1 x 10-/9/
. DS-1's 1 x 10-/9/
3. Frame Format:
. Frame formats must be transparent to all framing
4. Error Free Seconds:
. 99.9% of the time
5. Test Periods:
. DS-3's At least 72 hours advance notice
. DS-1's At least 24 hours advance notice
5. Maximum delay on the circuit:
. 1 millisecond per 125 miles
Schedule 6
----------
INITIAL QUOTE
$75,000 COMMITMENT LEVEL
DS3 City Pair
-------------
A Location Z Location Vendor 1 Vender 2 On Net Off Net Billed Price Price per DS-0
-------------------------------------------------------------------------------------------------------------------------
SWITCH SITE: BIRMINGHAM
BIRMINGHAM LATA
-------------------------------------------------------------------------------------------------------------------------
Birmingham Anniston IFN $4,092.00 $.1050
-------------------------------------------------------------------------------------------------------------------------
Anniston Gadsden IFN $2,177.28 $.1200
-------------------------------------------------------------------------------------------------------------------------
Birmingham Tuscaloosa IFN $1,649.69 $.0501
-------------------------------------------------------------------------------------------------------------------------
Tuscaloosa Meridan, MS IFN $2,962.71 $.0501
-------------------------------------------------------------------------------------------------------------------------
HUNTSVILLE LATA
-------------------------------------------------------------------------------------------------------------------------
Birmingham Huntsville Delta/IFN
-------------------------------------------------------------------------------------------------------------------------
Birmingham Huntsville MCI
-------------------------------------------------------------------------------------------------------------------------
Huntsville Xxxxxxxx MCI
-------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXX XXXX
-------------------------------------------------------------------------------------------------------------------------
Birmingham Montgomery ATT
-------------------------------------------------------------------------------------------------------------------------
Birmingham Montgomery Sprint
-------------------------------------------------------------------------------------------------------------------------
Montgomery Dothan Delta/IFN
-------------------------------------------------------------------------------------------------------------------------
SWITCH SITE: MEMPHIS
JACKSON, MS LATA
-------------------------------------------------------------------------------------------------------------------------
Memphis Jackson, MS ATT
-------------------------------------------------------------------------------------------------------------------------
Memphis Jackson, MS MCI
-------------------------------------------------------------------------------------------------------------------------
Jackson, MS Meridian IFN $3,163.77 $.0535
-------------------------------------------------------------------------------------------------------------------------
Memphis Tupelo ATT
-------------------------------------------------------------------------------------------------------------------------
SWITCH SITE: JACKSONVILLE
GAINESVILLE LATA
-------------------------------------------------------------------------------------------------------------------------
Jacksonville Gainesville MCI
-------------------------------------------------------------------------------------------------------------------------
TALLAHASSEE LATA
-------------------------------------------------------------------------------------------------------------------------
Jacksonville Tallahassee MCI
-------------------------------------------------------------------------------------------------------------------------
ATT
-------------------------------------------------------------------------------------------------------------------------
PANAMA CITY LATA
-------------------------------------------------------------------------------------------------------------------------
Tallahassee Panama City ATT
-------------------------------------------------------------------------------------------------------------------------
Tallahassee Chipley MCI
-------------------------------------------------------------------------------------------------------------------------
After Impact of After Impact of
Free Month Free Month
Effective Price Price Per DS-0 Mileage
-------------------------------------------------------------------
SWITCH SITE:
BIRMINGHAM LATA
--------------------------------------------------------------------
Birmingham $3,751.13 $.0962 58
--------------------------------------------------------------------
Anniston $1,995.91 $.1100 27
--------------------------------------------------------------------
Birmingham $1,512.27 $.0459 49
--------------------------------------------------------------------
Tuscaloosa $2,714.34 $.0459 88
--------------------------------------------------------------------
HUNTSVILLE LATA
--------------------------------------------------------------------
Birmingham $3,712.80 $ .065 85
--------------------------------------------------------------------
Birmingham $3,338.08 $.0584 85
--------------------------------------------------------------------
Huntsville $2,513.38 $.0584 64
--------------------------------------------------------------------
XXXXXXXXXX XXXX
--------------------------------------------------------------------
Birmingham $4,551.97 $.0806 84
--------------------------------------------------------------------
Birmingham $7,499.54 $.1328 84
--------------------------------------------------------------------
Xxxxxxxxxx $23,940.00-(2) $.3750 95
--------------------------------------------------------------------
SWITCH SITE:
JACKSON, MS LATA
--------------------------------------------------------------------
Memphis $10,567.06 $.0806 195
--------------------------------------------------------------------
Memphis N/A N/A 195
--------------------------------------------------------------------
Jackson, MS $2,900.22 $.04904 88
--------------------------------------------------------------------
Memphis $5,256.43 $.0806 97
--------------------------------------------------------------------
SWITCH SITE:
GAINESVILLE LATA
--------------------------------------------------------------------
Jacksonville $2,552.66 $.0584 65
--------------------------------------------------------------------
TALLAHASSEE LATA
--------------------------------------------------------------------
Jacksonville $6,165.64 $.0584 157
--------------------------------------------------------------------
$8,507.84 $.0806 157
--------------------------------------------------------------------
PANAMA CITY LATA
--------------------------------------------------------------------
Tallahassee $4,497.78 $.0806 83
--------------------------------------------------------------------
Tallahassee XXX XXX 80
--------------------------------------------------------------------
(1) Upon the successful transfer of the excess DeltaCom Network to IFN the
Pricing on this circuit will convert to $19,152 per month.
Page 27
