PORTIONS OF THIS EXHIBIT HAVE BEEN DELETED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER RULE 406 OF THE SECURITIES ACT OF 1933 AND THE
FREEDOM OF INFORMATION ACT
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CHERRY COMMUNICATIONS INCORPORATED
CARRIER SERVICE AGREEMENT
THIS CARRIER SERVICE AGREEMENT ("AGREEMENT") IS ENTERED INTO
ON 7 June, 1995, between CHERRY COMMUNICATIONS INCORPORATED, a
Illinois corporation ("Provider") with its principal offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
STARTEC, INC. a(n) Maryland corporation ("Purchaser") with its
principal offices at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Background:
A. Provider provides telephone communications
services between its location and the inbound/outbound
origination/termination points identified on Exhibit A and
subsequent attachments attached hereto and incorporated herein by
this reference; and
B. Purchaser desires to purchase and Provider
desires to provide, upon the terms and conditions set forth in
this Agreement, telephone communication services to Purchaser.
Agreement:
NOW, THEREFORE, intending to be legally bound, the parties
agree as follows:
Business Provisions:
1. Service Commencement Date. Beginning on or about 7 June,
1995, Provider shall provide telephone communications services to
Purchaser at the rates, terms and conditions described at Exhibit
A and subsequent attachments, and to the termination/origination
points set forth at such Exhibit A and subsequent attachments.
The services to be provided are limited to those set forth at
such Exhibit A and subsequent attachments. New services will be
added as subsequent attachments referencing this contract as long
as both parties (provider/purchaser) duly initial and date the
attachments.
2. Term of Service. This Agreement shall be effective and the
parties' obligations shall commence upon the above date of
execution by the parties and the Agreement shall continue for a
period of one year from such date. This Agreement will be
automatically renewed for additional one year periods after the
expiration of the initial term or any subsequent term. If either
party desires to cancel this Agreement upon the expiration of the
initial term or any subsequent term, it shall give the other
party notice of its intent to cancel at least sixty (60) days
prior to the expiration of the current term. This Agreement
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shall continue and remain in full force and effect until canceled
by either party upon notice as provided herein.
3. Security. As a condition of the Provider's obligations
hereunder, to ensure the prompt payments of sums due hereunder,
Purchaser shall agree to pay all reasonably undisputed funds in
net 30 days of receipt of invoice.
General Provisions:
4. Invoice. Provider shall submit an invoice to purchaser each
month, covering charges for the previous month. Purchaser shall
make payment to Provider within the later of: (1) thirty (30)
days after the invoice date, which shall be the last date of the
previous month's billing cycle; or (2) thirty (30) days after
Purchaser's receipt of the invoice. If payment of reasonable
undisputed charges is not received by Provider by such date, the
delinquent balance shall bear interest at the rate of one and
one-half percent (1-1/2%) per month. In addition, to cover
additional administrative expense, a five percent (5%) surcharge
on all overdue invoices shall be imposed until the account is
brought current. In the case where there is bi-lateral exchange
of services, the Purchaser will apply amounts due from Provider
to the monthly invoice and remit balance accordingly. Nothing
herein shall be construed to constitute a waiver of Provider's
right to declare a default by Purchaser under this agreement on
account of such delinquency, to terminate this Agreement on five
(5) business days written notice and failure of Purchaser to cure
within five (5) business day period and to excise any other
rights under this Agreement or at law or in equity.
5. Taxes. Purchaser upon the execution of this Agreement shall
provide Provider with a properly executed Certificate of
Exemption for all foreign, federal, state, country and local
taxes and fees (if any) and shall be responsible for the
collection of all applicable end-user taxes and fees and the
remittance of such taxes and fees to the relevant governmental
authority.
6. Termination. If payment has not been received by the due
date described above, or any extension thereof permitted in
writing at Provider's option, for all charges (including
transmission charges, service charges and monthly fixed charges,
if any) billed to Purchaser, the Provider may at its sole
discretion and with five (5) business days prior written notice
to Purchaser, terminate transmission services in part or in
whole. Provider reserves the right to collect reasonable
attorney's fees and any and all cost incurred by Provider in the
collection of any unpaid amounts whether or not suit is
instituted.
7. Adjustments. Request for billing adjustments must be made
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within sixty (60) days of the invoice date. Any amounts which
are determined to be in error will be credited against the next
month's invoice. Such request for adjustment shall not be cause
for delay in payment of the due net or reasonably dispute
charges.
8. No Warranties. PROVIDER MAKES NO WARRANTY, EXPRESS OR
IMPLIED WITH RESPECT TO THE TRANSMISSION SERVICES PROVIDED
HEREUNDER AND EXPRESSLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR
PURPOSE OR FUNCTION.
9. Waiver of Liability. As a material inducement for Provider
to provide the services hereunder at the prices stated, Purchaser
agrees that Provider shall in no event be liable for any loss,
expense or damage for (i) loss of revenue, profits savings,
business or goodwill, and (ii) exemplary, proximate,
consequential, or incidental damages and expenses of any type or
nature on account of any breach or default hereunder by Provider
or on account of the use of the services.
10. Indemnity. Purchaser shall indemnify and hold harmless
Provider, its stockholders, officers, directors, employees and
agents from any and all loss, cost, damage, expense or liability,
including, without limitation, court cost and reasonable
attorney's fees, arising out of, in whole or in part, directly or
indirectly, the installation, hook-up, maintenance, service or
trouble-shooting of the transmission services described in this
Agreement including any interruption of transmission service to
Purchaser, its employees, agents and customers, except when
caused by the gross negligence of Provider or the international
violations of any applicable law or governmental regulation by
Provider.
11. Regulations. This Agreement is made expressly subject to
all present and future valid orders and regulations of any
regulatory body having jurisdiction over the subject matter
hereof and to the laws of the United States of America, any of
its states, or any foreign governmental agency having
jurisdiction. In the event this Agreement, or any of its
provision, shall be found contrary to or in conflict with any
such order, rule, regulation or law, this Agreement shall be
deemed modified to the extent necessary to comply with any such
order, rule, regulation or law and shall be modified in such a
way as is consistent with the form, intent and purpose of this
Agreement.
12. No Agency. Nether party is authorized to act as an agent
for, or legal representative of, the other party and neither
party shall have the authority to assume or create any obligation
on behalf of, in the name of, or binding upon the other party.
Purchaser shall not represent or intimate that Provider is
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responsible for the type or quality of Purchaser's services to
its customers.
13. Force Majeure. The parties' obligations under this
Agreement are subject to, and neither party shall be liable for,
delays, failures to perform (except the payment of money by
Purchaser), damages, losses or destruction, or malfunction of any
equipment or any consequence thereof caused or occasioned by, or
due to fire, flood, water, the elements, labor disputes or
shortage, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortage of equipment for
supplies, unavailability of transportation, acts or omissions of
third parties, or any other cause beyond the party's reasonable
control. Purchaser shall not represent that Provider is
responsible for the type or quality of Purchaser's services to
its customers.
14. No Waiver. The failure of either party to enforce or insist
upon compliance with any of the provisions of this Agreement or
the waiver thereof, in any instance, shall not be construed as a
general waiver or relinquishment of any other provision of this
Agreement.
15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, successors and assigns. Nether party shall voluntarily or
by operation of law assign, transfer, license, or otherwise
transfer all or any party of its right, duties or other interests
in this Agreement or the proceeds thereof (collectively,
"Assignment"), without the other party's prior written consent,
which consent shall not be unreasonably with held or delayed.
Any attempt to make an Assignment in violation of this provision
shall be null and void. Purchaser shall provide written notice
to Provider of any provision shall be null and void. Purchaser
shall provide written notice to Provider of any material change
in ownership of Purchaser. Purchaser's failure to comply with
the assignment provision, as contained in this paragraph, shall
give Provider, at its sole discretion, the option to either
accept Purchaser's assignee or terminate this Agreement. No
assignment shall release Purchaser of its obligations hereunder.
16. Amendment. This Agreement may not be amended except by an
instrument in writing, executed by the parties. No modification
or amendment hereto shall effected by the acknowledgment or
acceptance by either party of any purchase order, sales
acknowledgment or other similar form from the other party.
17. Merger. This Agreement (including its exhibits and
attachments) supersedes and merges all prior agreements,
promises, understandings, statements, representations,
warranties, indemnities and covenants and all inducements to the
making of this Agreement relied upon by either party herein,
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whether written or oral, and embodies the parties' completed and
entire agreement with respect to the subject to the subject
matter hereof. No statement or agreement, oral or written, made
before the execution of the Agreement shall vary or modify the
written terms hereof in any way whatsoever.
18. Interpretation. The words and phrases used herein shall
have the meaning generally understood in the telecommunications
industry. This Agreement shall be construed in accordance with
its fair meaning and not for or against either party on account
of which party drafted this Agreement.
19. Third Party Beneficiaries/Parties in Interest. This
Agreement has been made and is made solely for the benefit of
Provider and Purchaser, and their respective successors and
permitted assigns. Nothing in this Agreement is intended t
confer any rights to remedies under or by reason of this
Agreement on any third party.
20. Severability. If any term or provision of this Agreement is
determined to be illegal, unenforceable, or invalid in whole or
in part for any reason, such illegal, unenforceable, or invalid
provisions or part thereof shall be stricken from this Agreement
and such provision shall not affect the legality, enforceability,
or validity of the remainder of this Agreement. If any provision
or part thereof of this agreement is stricken in accordance with
the provisions of this section, then this stricken provision
shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is as similar in tenor to
the stricken provision as is legally possible.
21. Representation of authority. Each party represents and
warrants the other that the execution and delivery of the
Agreement and the performance of such party's obligations
hereunder have been duly authorized and that the Agreement is a
valid and legal agreement binding on such party and enforceable
in accordance with its terms.
22. Further Assurance. The parties shall at their own cost and
expense execute and deliver such further documents and
instruments and shall take such other actions as may be
reasonable required or appropriate to carry out the intent and
purpose of the Agreement.
23. Governing Law. This Agreement shall be in all respects,
governed by and construed and enforced in accordance with the
laws of the State of Illinois, including all matters of
construction, validity and performance. Any action to enforce or
interpret the terms of this Agreement shall be instituted and
maintained in the Superior Court of the County of ▇▇▇▇, State of
Illinois. Purchaser hereby consents to the jurisdiction of such
court and waives any objections to such jurisdiction. In any
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action or proceeding arising out of this Agreement, the party
prevailing in such action shall be entitled to recover its
reasonable attorney's fees and costs.
24. Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original, but all
of which shall constitute one and the same instrument.
25. Notices. All notices, demands, requests and other
communications required or permitted hereunder shall be in
writing and shall be deemed to be delivered when actually
received, or, if earlier and regardless of whether actually
received on the day following the date of mailing, first class
mail, duly addressed and with proper postage to the last known
place of business of either party.
If to STARTEC, Inc. If to Cherry:
ATTN: General Counsel ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇
10411 Motor City Drive, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No.: ▇▇▇ ▇▇▇-▇▇▇▇ Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
PROVIDER: CHERRY COMMUNICATIONS PURCHASER: STARTEC, Inc.
BY: ____________________ By:__________________________
_________________________ _____________________________
Its: Vice President Its: Manager, Carrier
Carrier Sales Transit Services
CONFIDENTIAL
"EXHIBIT A"
Cherry Plc
Carrier Origination Services
STARTEC CIC translation on Cherry Network
1. Cherry (PROVIDER) will set-up STARTEC CIC to be translated
via Cherry Network in those locations mutually agreed by Cherry
and STARTEC (PURCHASER) for the purpose of dedicated
(pre-subscribed or casual)origination into STARTEC P.O.P in Wash.
D.C. or other site as mutually agreed by Cherry and STARTEC.
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2. The [CT REQUESTED] rate for STARTEC CIC translated
origination will be [CT REQUESTED].
3. Cherry will pass on any associated fixed or variable
monthly costs for CIC translation from LEC or will offer STARTEC
the option to cover LEC costs by specifying required minimum
usage amounts on a case by case basis.
4. Cherry will facilitate activation of STARTEC's Customer
ANI's to be originated via STARTEC CIC on Cherry Network.
5. Cherry will provide the necessary interface to achieve #4
in a timely manner consistent with normal provision of service.
CHERRY PRESUBSCRIBED CIC Origination into STARTEC P.O.P.
6. Cherry will provide usage of Cherry CIC on a pre-subscribed
basis for STARTEC's Customer ANI's for the purpose of origination
into STARTEC P.O.P (Wash., D.C. or where specified) excluding
STARTEC's existing FGD sites and those locations (LATA's, etc.)
covered by #1.
7. Origination will be requested by STARTEC as necessary and
service will be provided by Cherry where capable.
8. The [CT REQUESTED] rate for Cherry CIC origination will be
[CT REQUESTED].
9. Cherry will facilitate activation of STARTEC's Customer
ANI's to be originated on Cherry CIC via Cherry Network.
10. Cherry will provide the necessary interface to achieve #9
in a timely manner consistent with normal provision of service.
CONFIDENTIAL
"EXHIBIT A"
Attachment 1 cont., Page 2
CHERRY PIC
Carrier Origination Services
NATIONWIDE CASUAL COUNTRY SPECIFIC ORIGINATION ON CHERRY CIC
11. Cherry will provide [CT REQUESTED] on Cherry CIC for all
calls designated to [CT REQUESTED] and deliver these calls to [CT
REQUESTED].
12. The [CT REQUESTED] rate for Cherry CIC country specific
origination will be [CT REQUESTED].
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13. STARTEC will terminate above calls to [CT REQUESTED] and
will be responsible for billing all casual traffic via STARTEC
Network at its applicable tariffed rate.
14. Notwithstanding the aforementioned, where specified,
STARTEC will separate Cherry CDR's for calls terminated to [CT
REQUESTED] and invoice Cherry at a termination rate specified in
attachment 6.
15. CDR's for Cherry specified calls will be returned to Cherry
on mag. tape or other acceptable format.
16. If STARTEC is no longer able to provide a competitive
termination rate for #14, then Cherry has the option to terminate
Cherry generated calls via a suitable carrier.
Notwithstanding above, STARTEC generated calls will continue to
be originated by Cherry into STARTEC P.O.P. for termination by
STARTEC. STARTEC calls can be identified by city code, DNIS or
other suitable means.
"EXHIBIT A"
Attachment 2
Cherry Pic
Carrier Termination Services
Dedicated Access
SPECIAL INTERSTATE RATE
1. WHEREVER CHERRY INSTALLS ITS OWN FGD'S IN THE CHERRY "PIC"
YOUR DESTINATION LATAS (listed in Exhibit A, Attachment 3), THE
DEDICATED TERMINATION RATE WILL BE [CT REQUESTED].
2. LATAS WHERE FGD'S ARE INSTALLED ARE INCLUDED IN ATTACHMENT 4.
CHERRY WILL NOTIFY IN WRITING BY FAX OR MAIL AS AND WHEN FGD'S
ARE INSTALLED IN NEW LATA'S. THE NOTIFICATION WILL MADE WITHIN
30 DAYS AND WILL BE ADDED TO EXHIBIT A AS THE SUBSEQUENT
ATTACHMENT.
3. WHERE PLAUSIBLE, CHERRY WILL PROVIDE SWITCHED DOMESTIC
TERMINATION AT A COMBINED RATE OF [CT REQUESTED]. CHERRY WILL
SEND MAG. TAPES OR OTHER ACCEPTABLE FORMAT CONTAINING STARTEC
CDR'S.
4. WHERE #1 IS NOT APPLICABLE, REGULAR TERMINATION RATES ARE PER
EXHIBIT A., ATTACHMENT 3. MINIMUM USAGES ARE WAIVED.
136
Exhibit "A"
Attachment 3
Cherry Pic
Carrier Termination Services
Dedicated Access
INTERSTATE RATE SCHEDULE
"EXHIBIT A"
Attachment 4
Cherry Pic
A. LATA'S WHERE CHERRY FGD'S ARE INSTALLED
[CT REQUESTED]
B. LATA'S WHERE CHERRY HAS ORIGINATION CAPABILITY
[CT REQUESTED]
Exhibit "A"
Attachment 5
Cherry Pic
Carrier
[CT REQUESTED]
[CT REQUESTED] Base Rates
Switched Dedicated
[CT REQUESTED] [CT REQUESTED]
[CT REQUESTED] Base Rates
Switched Dedicated
[CT REQUESTED] Bands Day Non-Day Day Non-Day
[CT REQUESTED]
[CT REQUESTED] calls are billed in [CT REQUESTED] increments
with a [CT REQUESTED] minimum
"EXHIBIT A"
Attachment 6
137
CHERRY Plc
Carrier Termination Services
Dedicated Access
[CT REQUESTED] TERMINATION RATES
A. [CT REQUESTED]
B. [CT REQUESTED]
C. [CT REQUESTED]
D. [CT REQUESTED]
E. [CT REQUESTED]
F. [CT REQUESTED]
G. [CT REQUESTED]
H. [CT REQUESTED]
Note: [CT REQUESTED] rates may be negotiated from time
to time as rates decrease.
138