Exhibit 10.25
NETWORK OPERATING AGREEMENT
between
GULF STATES FIBERNET
TRINET, INC.
▇▇▇▇ COMMUNICATIONS, INC.
MPX SYSTEMS, INC.
TABLE OF CONTENTS
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SECTION 1 DEFINITIONS..................................................................... 2
SECTION 2 GENERAL DESCRIPTION OF THE NETWORK.............................................. 6
2.1 General Description of the Network.............................................. 6
2.2 Relationship of the Parties..................................................... 6
2.3 Use of Physical Facilities...................................................... 6
2.4 Responsibility for Management, Operation and Sale of Network Capacity........... 7
2.5 Sale of Capacity Between Parties................................................ 7
2.6 Compensation Sharing Mechanisms................................................. 7
SECTION 3 PROVISION OF PHYSICAL FACILITIES................................................ 8
3.1 Gulf States..................................................................... 8
3.2 TriNet.......................................................................... 8
3.3 ▇▇▇▇............................................................................ 9
3.4 MPX............................................................................. 9
3.5 TriNet and ▇▇▇▇................................................................. 9
SECTION 4 DARK FIBER LEASE OPTION BETWEEN TRINET, ▇▇▇▇ AND .... . ........................ 9
4.1 Options......................................................................... 9
4.2 Exercise of Option.............................................................. 10
4.3 Dark Fiber Lease Form........................................................... 10
SECTION 5 OPERATING STANDARDS............................................................. 10
5.1 Obligation to Comply With Opening Standards..................................... 10
5.2 Operations Manual............................................................... 10
5.3 Intermediate POPs and Regenerator Stations...................................... 10
5.4 Engineering Minimums for POPs, Intermediate POPs, Regenerator Stations.......... 10
5.5 Interface to Carolina Fibernet.................................................. 11
5.6 Maintenance Standards........................................................... 11
5.7 Equipment Compatibility and Interconnection..................................... 11
5.8 Service Interruption............................................................ 11
SECTION 6 ADMINISTRATION OF THE GULF/TRINET/▇▇▇▇ RING..................................... 11
6.1 Books and Records............................................................... 11
6.2 Inspection and Audit............................................................ 12
6.3 Revenue and Traffic Projections................................................. 12
SECTION 7 REGULATORY APPROVALS............................................................ 13
SECTION 8 REPRESENTATIONS AND WARRANTIES.................................................. 13
8.1 Organization; Good Standing; Qualification...................................... 13
8.2 Corporate Power; Authorization; Enforceable Obligations......................... 13
8.3 Due Execution and Binding Effect................................................ 13
8.4 Compliance with Law; Regulatory Authority....................................... 13
8.5 No Material Misrepresentation or Omission....................................... 13
8.6 Ownership of and Access to Physical Facilities.................................. 14
8.7 Claims and Encumbrances......................................................... 14
8.8 Condition of Physical Facilities ............................................... 14
SECTION 9 ADDITIONAL COVENANTS............................................................ 14
9.1 Notice of Action or Proceeding.................................................. 14
9.2 Claims and Encumbrances......................................................... 14
9.3 Access to Physical Facilities................................................... 14
9.4 Further Assurances.............................................................. 14
SECTION 10 EXPENSES........................................................................ 15
SECTION 11 DISPUTE RESOLUTION.............................................................. 15
11.1 Negotiation; Arbitration; Georgia Jurisdiction.................................. 15
11.2 Commencement; Selection of Arbitrator; Award.................................... 15
11.3 Enforceability.................................................................. 15
11.4 Expenses........................................................................ 15
SECTION 12 INDEMNIFICATION AND LIABILITY................................................... 16
12.1 General Indemnification Obligation.............................................. 16
12.2 Method of Asserting Claims...................................................... 16
12.3 Payment......................................................................... 17
12.4 Liability....................................................................... 17
SECTION 13 SPECIFIC PERFORMANCE............................................................ 17
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ AND BREACH.................................................... 18
14.1 Term............................................................................ 18
14.2 Breach.......................................................................... 18
14.3 Termination..................................................................... 18
14.4 Effect of Expiration or Termination............................................. 18
SECTION 15 FORCE MAJEURE................................................................... 18
SECTION 16 INTANGIBLE PROPERTY............................................................. 19
16.1 Confidential Information........................................................ 19
16.2 Intangible Property............................................................. 19
16.3 Marks........................................................................... 19
16.4 Trade Secrets................................................................... 19
16.5 Obligation and Acknowledgments.................................................. 19
16.6 Treatment of Intangible Property................................................ 20
16.7 Use of Marks.................................................................... 20
16.8 Non-Disclosure.................................................................. 20
SECTION 17 OTHER VENTURES.................................................................. 21
SECTION 18 GENERAL PROVISIONS.............................................................. 21
18.1 Amendment....................................................................... 21
18.2 Partial Exercise of Rights...................................................... 21
18.3 Survival........................................................................ 21
18.4 Merger.......................................................................... 21
18.5 Binding Effect; Assignment...................................................... 21
18.6 Governing Law................................................................... 22
18.7 Severability.................................................................... 22
18.8 Limitation on Benefits and Enforcement.......................................... 22
18.9 Recovery of Costs of Enforcement................................................ 22
18.10 Notices......................................................................... 22
18.11 Interpretation.................................................................. 23
18.12 Counterparts.................................................................... 23
EXHIBIT A....................................................................................... 24
EXHIBIT B....................................................................................... 26
EXHIBIT C....................................................................................... 27
EXHIBIT D....................................................................................... 28
EXHIBIT E....................................................................................... 29
EXHIBIT F....................................................................................... 30
EXHIBIT G....................................................................................... 31
NETWORK OPERATING AGREEMENT
AMONG Gulf States FiberNet, a Georgia general partnership ("Gulf States"),
TriNet, Inc. a Georgia corporation ("TriNet"), ▇▇▇▇ Communications, Inc., a
Georgia corporation ("▇▇▇▇"), and MPX Systems, Inc., a South Carolina
corporation ("MPX") (collectively "Parties" and individually, "Party").
RECITALS
WHEREAS, each Party owns, or is constructing, certain fiber-optic cable and
related facilities in Georgia over which it has, or will have, the capacity to
carry communications transmissions;
WHEREAS, Gulf States desires to obtain a means to transmit communications
between its Gainesville, Georgia and/or Winder, Georgia points of presence
("POPs," as defined below, such POPs referred to herein as "Gainesville" and
"Winder," respectively) and the Carolina FiberNet Interface (as defined below)
at Toccoa, Georgia, where TriNet has a POP (such POP referred to herein as
"Toccoa") and at Hartwell, Georgia, where ▇▇▇▇ has a POP (such POP referred to
as "Hartwell");
WHEREAS, TriNet and ▇▇▇▇ desire to provide communications transmission
capacity to carry Gulf States' communications traffic between Gainesville and/or
Winder and the Carolina Fibernet Interface at Toccoa and/or Hartwell and other
points in the Network (as defined below);
WHEREAS, Gulf States has agreed to pay to each of TriNet and ▇▇▇▇ an equal
portion of Gulf States' revenue derived from the communications traffic that
TriNet and ▇▇▇▇ will carry between Gainesville and/or Winder and the Carolina
Fibernet Interface at Toccoa and/or Hartwell or other points in the Network;
WHEREAS, TriNet and ▇▇▇▇ desire to obtain access to the Gulf States Network
and Interstate FiberNet Network (as defined below) for the purpose of
transmitting TriNet's and ▇▇▇▇'▇ communications traffic, and Gulf States desires
to sell such capacity to TriNet and ▇▇▇▇ at Prevailing Carrier's Carrier Rates
(as defined below);
WHEREAS, Gulf States desires to buy communications transmission capacity
into TriNet's and ▇▇▇▇'▇ respective service areas and on Carolina FiberNet to
transmit communications traffic, and TriNet and ▇▇▇▇ desire to sell such
capacity to Gulf States as set forth below;
WHEREAS, MPX conveys communications traffic between its POPs at Winder and
Hartwell (such POPs are referred to herein as "Winder" and "Hartwell,"
respectively) and desires to obtain a diversity route for its communications
traffic between Winder and Hartwell;
WHEREAS, Gulf States, TriNet and ▇▇▇▇ desire to provide MPX with a
diversity route for MPX's communications transmissions between Winder and
Hartwell;
WHEREAS, MPX has agreed to grant Gulf States, TriNet and ▇▇▇▇ the right to
transmit communications traffic between Winder and Hartwell over certain of
MPX's fiber-optic lines;
WHEREAS, TriNet and ▇▇▇▇ each desires to improve its ability to provide
highly-reliable communications capacity for its respective customers;
WHEREAS, Gulf States and MPX each has a POP in Atlanta and has agreed to
make its POP available for use by the Parties in connection with communications
transmitted on the Network;
WHEREAS, MPX has agreed to provide Operational Space (as defined below)
available for use by the Parties in connection with communications transmitted
on the Network;
WHEREAS, to meet the Parties' obligations to provide the above-described
services, each Party has agreed to provide access to, and use of, certain
facilities, equipment and operating space pursuant to the terms and conditions
of this Agreement;
WHEREAS, this Agreement will provide for sufficient capacity, equipment,
and operating space to permit operation of two (2) two-fiber fiber-optic rings
(as defined below) and one (1) four-fiber fiber-optic route (as defined below),
each involving the POPs identified on Exhibit A (such fiber-optic rings and
route being referred to herein collectively as the "Network");
WHEREAS, the Parties have agreed that, for the efficient operation of the
Network, Gulf States, TriNet and ▇▇▇▇ will operate one (1) two-fiber fiber-optic
ring of the Network (the "Gulf/TriNet/▇▇▇▇ Ring"), TriNet and ▇▇▇▇ will operate
the other two-fiber fiber-optic ring of the Network (the "TriNet/▇▇▇▇ Ring"),
and MPX will operate its diversity route over the four-fiber fiber-optic route
of the Network (the "MPX Diversity Route"); and
WHEREAS, the Parties are using best efforts to construct all required
facilities as expeditiously as possible and have begun operational tests of some
or all of the Network.
NOW, THEREFORE, in consideration of the mutual promises and other valuable
consideration contained herein, the sufficiency of which is hereby acknowledged,
and intending to be bound hereby, the Parties agree as follows:
SECTION I DEFINITIONS
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Unless expressly stated elsewhere in this Agreement, the use of the following
capitalized terms shall have the following meaning throughout this Agreement:
ADM means an Add-Drop Multiplexer that complies with the Operating
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Standards.
Affiliate means any individual, partnership, joint venture, corporation,
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trust, or unincorporated organization that directly or indirectly controls,
is controlled by, or is under common control with a Party. For purposes of
defining Affiliate, control means the possession, directly or indirectly,
of the power to direct, or to cause the direction of, any person or entity
of whatsoever kind, whether through ownership of securities, by contract,
or otherwise.
Agreement means this Network Operating Agreement together with all
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Exhibits.
Atlanta means the respective points of presence maintained and operated by
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Gulf States and MPX, located at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Carolina Fibernet means the interstate communications network that
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transmits communications in and throughout Georgia, South Carolina and
North Carolina.
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Carolina Fibernet Interface means the physical point of demarcation at
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Toccoa and/or Hartwell between the Network or Network Equipment and
Carolina Fibernet or Carolina Fibernet equipment through which
transmissions will exit the Network to Carolina Fibernet or enter the
Network from Carolina Fibernet.
Circuit means a connection carrying communications on the Network and
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connecting two points on the Network.
Claim Notice is defined in Section 12.2.1.
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Claim Notice Period is defined in Section 12.2.1.
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Confidential Information is defined in Section 16.1.
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Cure Period is defined in Section 14.2.
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Dark Fiber mean fiber-optic cable without accompanying transmission service
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support and, therefore, without the current capacity to carry
communications transmissions.
Dark Fiber Lease means an executed Dark Fiber Lease between MPX and TriNet
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or MPX and ▇▇▇▇.
Disconnect Period is defined in Section 14.4.
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Engineering Minimums are the situation requirements for each POP,
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Intermediate POP or Regenerator Station set forth in Exhibit F.
Equipment means all devices that are not Circuits and that are necessary to
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process communications on the Network and/or to interconnect the Physical
Facilities of the Network to Carolina FiberNet and to connect the
Gulf/TriNet/▇▇▇▇ Ring to the Gulf States Network or Interstate FiberNet
Network, including without limitation all necessary elements and components
to provide interfaces, termination, transmission service support, and
electronic connections.
Fiber means a fiber-optic cable that complies with the Operating Standards
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(as defined below) of this Agreement accompanied by sufficient transmission
service support for the cable to be put into service carrying
communications transmissions contemplated by this Agreement and in
compliance with the Operating Standards.
Force Majeure is defined in Section 15.
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Gainesville means the respective Points of Presence maintained and operated
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by Gulf States or TriNet in Gainesville, Georgia, located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Gulf States Network means the fiber-optic Communications network owned by
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Gulf States FiberNet and managed by Interstate FiberNet, that transmits
Communications in and through Louisiana, Mississippi, Alabama and Georgia.
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Gulf/TriNet/▇▇▇▇ Ring means the component fiber-optic ring of the Network,
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as diagrammed in Exhibit B, that Gulf States will manage, Gulf States,
TriNet and ▇▇▇▇ will operate jointly, and for which Gulf States, TriNet
and/or ▇▇▇▇ will designate the communications to be transmitted.
Hartwell means the respective Points of Presence maintained and operated by
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MPX and ▇▇▇▇ in Hartwell, Georgia, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Indemnified Party is defined in Section 12.1.
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Indemnifying Party is defined in Section 12.1.
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Initial Term is defined in Section 14.1.
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Intangible Property is defined in Section 16.2.
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Intermediate POP is a POP other than Gainesville, Winder, Hartwell or
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Toccoa, designated by a Party, pursuant to Section 5.3 below, for routing
traffic over a Network Circuit provided by the designating Party.
Interstate FiberNet means the interstate communications carrier that owns,
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operates and manages fiber-optic communications networks that transmit
communications in and through Louisiana, Mississippi, Alabama and Georgia.
Leased Property means Dark Fiber that MPX may lease from either TriNet or
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▇▇▇▇ pursuant to the provisions of Section 4 below and a Dark Fiber Lease.
Leased Property is included in the Physical Facilities.
Marks is defined in Section 16.3.
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Material Breach is defined in Section 14.3.2.
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MPX Diversity Route means the component fiber-optic route of the Network,
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as diagrammed in Exhibit B, that will be managed and operated by, and
transmit communications designated by, MPX.
Network means the Physical Facilities provided under this Agreement that
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form the Gulf/TriNet/▇▇▇▇ Ring, the TriNet/▇▇▇▇ Ring and the MPX Diversity
Route.
Operating Standards means the body of parameters and responsibilities set
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forth in Section 5 and Exhibits E and F, as they may be amended from time
to time, to govern the Network and its operation.
Operational Space means that space at either a POP, an intermediate POP or
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a Regenerator Station that a Party will provide under this Agreement for
placement of the Physical Facilities that will be used to operate the
Network.
Physical Facilities means the Circuits, Equipment and Operational Space
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that form the Network, including Leased Property.
Page 4
Point of Presence or POP means the physical location of Equipment where at
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least one Party interconnects with the Network.
Prevailing Carrier's Carrier Rates means the current rates quoted to
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prospective customers for transport communications services, taking into
account contract terms and conditions, any applicable discounts and/or
promotional credits in effect at the time of quotation. Such rates are
subject to change, without notice, beyond the validity date of the
quotation.
Price Floor is defined in Section 6.2.2.
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Regen or Regenerator means a device that restores a signal to its original
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form.
Regenerator Station means the point on a Circuit where a Party has placed
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Regen Equipment.
Revenue Sharing Agreement means the agreement among Gulf States, TriNet and
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▇▇▇▇ regarding the sharing of revenue among them from operation of the
Gulf/TriNet/▇▇▇▇ Ring and attached hereto as Exhibit D.
Service Order means Exhibit G.
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Supplemental Term is defined in Section 14.1.
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Terminal means a Network Equipment device, howsoever equipped, that is
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capable of either originating or receiving voice and/or data transmissions
conveyed over the Circuits.
Termination Date is defined in Section 14.2.1.
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Termination Notice is defined in Section 14.2.1.
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Toccoa means the Point of Presence maintained by TriNet in Toccoa, Georgia,
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located at ▇▇▇▇'▇ Plaza, Unit No.4, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
Trade Secrets is defined in Section 16.4.
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TriNet/▇▇▇▇ Agreement means the separate agreement among TriNet and ▇▇▇▇
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relating to the TriNet/▇▇▇▇ Ring.
TriNet/▇▇▇▇ Ring means the component fiber-optic ring of the Network, as
----------------
diagrammed in Exhibit B, that will be managed and operated by, and transmit
communications designated by, TriNet and ▇▇▇▇.
Winder means the respective Points of Presence maintained by Gulf States
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and MPX in Winder, Georgia, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
Page 5
SECTION 2 GENERAL DESCRIPTION OF THE NETWORK
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2.1 General Description of the Network. The Parties agree that the Network will
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be configured as shown on Exhibit B, attached hereto and incorporated
herein by reference. The Network will utilize the POPs listed on Exhibit A
and may utilize additional Intermediate POPs or Regenerator Stations
pursuant to Section 5.3 below. Where more than one (1) Party maintains an
independent presence at a Network POP, those Parties operating at such POP
agree jointly to determine how the Physical Facilities will be configured
and operated at the POP. The Physical Facilities shall be configured and
operated in conformance with this Agreement, including all Operating
Standards. Each Party is responsible for all Operational Space and
Equipment on its Network Circuits, including any at Intermediate POPs
and/or Regenerator Stations, that are necessary or agreed to for Network
operation in conformance with the Operating Standards.
2.2 Relationship of the Parties. Nothing in this Agreement shall be construed
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to create a partnership or joint venture or any other relationship among
the Parties other than that of independent parties contracting for the
purposes of carrying out the provisions of this Agreement. In designating
Physical Facilities for use in the operation of the Network in Section 3
below, the Parties in no way intend to convey to any other Party any
property rights or interests in the designated Physical Facilities, except
for the contractual right to use such Physical Facilities as specifically
set forth in this Agreement. The Parties agree that this Agreement, to the
extent it is subject to FCC regulation, is an inter-carrier agreement not
subject to filing requirements of Section 211(a) of the Communications Act
of 1934, as amended.
2.3 Use of Physical Facilities.
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2.3.1 Services Offered on the Network Excluded. This Agreement applies
----------------------------------------
only to the Parties' arrangements to share the Physical Facilities
and shall not apply to services offered by a Party over the Network.
The Parties agree that a Party that offers a service over the
Network is the only communications carrier of that service, and that
a Party has no responsibility to another Party's customers beyond
those obligations imposed by this Agreement.
2.3.2 Formation of End-to-End Service. Physical Facilities provided to a
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Party under this Agreement may be connected to other facilities,
provided by either that Party, another Party or a third party, to
permit the formation of an end-to-end service.
2.3.3 Rates, Terms and Conditions of Services Provided Over the Network.
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Subject to the requirements of Section 6.2 below, the Revenue
Sharing Agreement, any additional compensation sharing mechanism
among one or more of Gulf States, TriNet and ▇▇▇▇ pursuant to
Section 2.6 below, and the TriNet/▇▇▇▇ Agreement, the rates, terms
and conditions of services provided over the Network are the
responsibility of the Party contracting with a customer for that
service.
Page 6
2.4 Responsibility for Management, Operation and Sale of Network Capacity.
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2.4.1 Gulf/TriNet/▇▇▇▇ Ring.
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2.4.1.1 Operation. Gulf States, TriNet and ▇▇▇▇ are jointly
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responsible for operation of the Gulf/TriNet/▇▇▇▇ Ring.
2.4.1.2 Management. Gulf States is responsible for management of
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the Gulf/TriNet/▇▇▇▇ Ring.
2.4.1.3 Sale of Capacity. Gulf States, TriNet and/or ▇▇▇▇ may sell
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capacity on the Gulf/TriNet/▇▇▇▇ Ring. Gulf States agrees,
at its own expense, to use reasonable efforts to market and
sell capacity on the Gulf/TriNet/▇▇▇▇ Ring, and, to the
extent Gulf, TriNet and ▇▇▇▇ may agree, on the TriNet/▇▇▇▇
Ring. Gulf States agrees to provide such personnel, and
cause them to devote such time, as may reasonably be
required to make these efforts effective.
2.4.2 TriNet/▇▇▇▇ Ring. TriNet and ▇▇▇▇ agree to enter into an agreement
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with respect to management, operation and sale of capacity on the
TriNet/▇▇▇▇ Ring and to abide by the terms and conditions of that
agreement. Subject to the TriNet/▇▇▇▇ Agreement, TriNet and ▇▇▇▇ are
jointly responsible for the management, operation and sale of
capacity of the TriNet/▇▇▇▇ Ring.
2.4.3 MPX Diversity Route. MPX is responsible for the management,
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operation and sale of capacity of the MPX Diversity Route.
2.5 Sale of Capacity Between Parties.
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2.5.1 On the Network. Subject to Section 2.4 above, a Party may sell
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capacity on the Network to another Party. The selling Party shall
charge its then existing Prevailing Carrier's Carrier Rates for
capacity on the Network.
2.5.2 Off-Network. Gulf States agrees to sell TriNet and ▇▇▇▇ capacity on
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the Gulf States Network or Interstate FiberNet. Subject to further
agreement, TriNet and ▇▇▇▇ each agree to sell off-network capacity
in its respective service area to Gulf States. The charges for any
such sale of capacity under this provision shall be each Party's
then existing Prevailing Carrier's Carrier Rates for the same
service.
2.6 Compensation Sharing Mechanisms. Gulf States, TriNet and ▇▇▇▇ agree to
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enter into the Revenue Sharing Agreement incorporated herein as Exhibit D,
with respect to capacity sold by Gulf States on the Gulf/TriNet/▇▇▇▇ Ring.
Gulf States, TriNet and ▇▇▇▇ agree that, before TriNet or ▇▇▇▇ sells
capacity on the Gulf/TriNet/▇▇▇▇ Ring, Gulf States, TriNet and ▇▇▇▇ will
agree as to an appropriate mechanism for Gulf States to share in that
revenue. The Parties agree that any such additional compensation sharing
mechanism shall be incorporated into this Agreement as an additional
exhibit.
Page 7
SECTION 3 PROVISION OF PHYSICAL FACILITIES
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Except as otherwise specified herein, the Parties agree to make the following
Physical Facilities available for use in the Network at a time sufficient to
enable each of the component rings or route of the Network to become operational
as soon as practicable.
3.1 Gulf States. Gulf States agrees to provide use of or access to the
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following Physical Facilities for use in the Network pursuant to the
Operating Standards:
3.1.1 Four (4) Dark Fibers connecting Winder and Gainesville for use in
the MPX Diversity Route;
3.1.2 Two (2) Fibers connecting Winder and Gainesville for use in the
Gulf/TriNet/▇▇▇▇ Ring;
3.1.3 After the initiation of operation on the Gulf/TriNet/▇▇▇▇ Ring, and
pursuant to reaching agreement with TriNet and ▇▇▇▇, two (2)
additional Fibers connecting Winder and Gainesville for use in the
Gulf/TriNet/▇▇▇▇ Ring;
3.1.4 Two (2) Fibers connecting Winder and Gainesville for use in the
TriNet/▇▇▇▇ Ring;
3.1.5 Operational Space at Gainesville for use of the Gulf/TriNet/▇▇▇▇
Ring, the TriNet/▇▇▇▇ Ring and the MPX Diversity Route;
3.1.6 Operational Space at Winder for use of the Gulf/TriNet/▇▇▇▇ Ring,
the TriNet/▇▇▇▇ Ring and the MPX Diversity Route;
3.1.7 One (1) 0C-48 ADM at Gainesville for use in the Gulf/TriNet/▇▇▇▇
Ring; and
3.1.8 One (1) OC-48 ADM at Winder for use in the Gulf/TriNet/▇▇▇▇ Ring.
3.2 TriNet. TriNet agrees to provide use of or access to the following Physical
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Facilities for use in the Network pursuant to the Operating Standards:
3.2.1 Four (4) Dark Fibers connecting Gainesville and Toccoa for use in
the MPX Diversity Route;
3.2.2 Two (2) Fibers connecting Gainesville and Toccoa for use in the
Gulf/TriNet/▇▇▇▇ Ring;
3.2.3 After the initiation of operation on the Gulf/TriNet/▇▇▇▇ Ring and
pursuant to agreement with Gulf and ▇▇▇▇, two (2) additional Fibers
connecting Gainesville and Toccoa for use in the Gulf/TriNet/▇▇▇▇
Ring;
3.2.4 Two (2) Fibers connecting Gainesville and Toccoa for use in the
TriNet/▇▇▇▇ Ring;
3.2.5 Operational Space for Equipment between Gainesville and Toccoa for
use of the MPX Diversity Route and the Gulf/TriNet/▇▇▇▇ Ring;
3.2.6 Operational Space at Toccoa for use in Gulf/TriNet/▇▇▇▇ Ring and the
MPX Diversity Route;
Page 8
3.2.7 A minimum of one (1) 0C-48 Terminal at the Carolina Fibernet
Interface at Toccoa for use in the Gulf/TriNet/▇▇▇▇ Ring; and
3.2.8 Subject to reaching agreement with Gulf States and ▇▇▇▇, 0C-48 Regen
Equipment, as needed, between Gainesville and Toccoa for use in the
Gulf/TriNet/▇▇▇▇ Ring.
3.3 ▇▇▇▇. ▇▇▇▇ agrees to provide use of or access to the following Physical
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Facilities for use in the Network pursuant to the Operating Standards:
3.3.1 Four (4) Dark Fibers connecting Toccoa and ▇▇▇▇▇▇▇▇ for use in the
MPX Diversity Route;
3.3.2 Two (2) Fibers connecting Toccoa and ▇▇▇▇▇▇▇▇ for use in the
Gulf/TriNet/▇▇▇▇ Ring;
3.3.3 After initiation of operation on the Gulf/TriNet ▇▇▇▇ Ring and
pursuant to agreement with Gulf and TriNet, two (2) additional
Fibers connecting Toccoa and ▇▇▇▇▇▇▇▇ for use in the
Gulf/TriNet/▇▇▇▇ Ring; and
3.3.4 Two (2) Fibers connecting Toccoa and ▇▇▇▇▇▇▇▇ for use in the
TriNet/▇▇▇▇ Ring.
3.3.5 A minimum of one (1) 0C-48 Terminal at the Carolina FiberNet
Interface at ▇▇▇▇▇▇▇▇ for use in the Gulf/TriNet/▇▇▇▇ Ring.
3.4 MPX. MPX agrees to provide use of or access to the following Physical
---
Facilities for use in the Network pursuant to the Operating Standards:
3.4.1 Two (2) Dark Fibers connecting Winder and ▇▇▇▇▇▇▇▇ for use in the
Gulf/TriNet/▇▇▇▇ Ring;
3.4.2 Two (2) Dark Fibers connecting Winder and ▇▇▇▇▇▇▇▇ for use in the
TriNet/▇▇▇▇ Ring;
3.4.3 Operational Space from Atlanta to ▇▇▇▇▇▇▇▇, as necessary, for use in
the Gulf/TriNet/▇▇▇▇ Ring and in the TriNet/▇▇▇▇ Ring; and
3.4.4 All Physical Facilities not otherwise specified in this Section 3
that are required for operation of the Gulf States/TriNet/▇▇▇▇ Ring
and the TriNet/▇▇▇▇ Ring.
3.5 TriNet and ▇▇▇▇.
---------------
Subject to the TriNet/▇▇▇▇ Agreement, TriNet and ▇▇▇▇ agree to provide all
Physical Facilities not otherwise specified in this Section 3 that are
required for operation of the TriNet/▇▇▇▇ Ring.
SECTION 4 DARK FIBER LEASE OPTION BETWEEN TRINET, ▇▇▇▇ AND MPX
----------------------------------------------------
4.1 Options. In addition to the provision of Physical Facilities discussed in
-------
Section 3 above, TriNet and ▇▇▇▇ each ▇▇▇▇▇ to MPX the following options to
lease additional Dark Fiber:
Page 9
4.1.1 TriNet. TriNet grants an option to MPX throughout the initial Term
------
and any Supplemental Term of this Agreement to lease from TriNet
the use of up to two (2) Dark Fibers connecting Gainesville and
Toccoa for the MPX Diversity Route.
4.1.2 ▇▇▇▇. ▇▇▇▇ grants an option to MPX throughout the Initial Term and
----
any Supplemental Term of this Agreement, to lease from ▇▇▇▇ the use
of up to two (2) Dark Fibers connecting Toccoa and ▇▇▇▇▇▇▇▇ for the
MPX Diversity Route.
4.2 Exercise of Option. To exercise an option pursuant to this Section 4, MPX
------------------
shall notify TriNet and/or ▇▇▇▇, as the case may be, in writing, of its
intention to exercise a lease option and the extent of the exercise. Such
notice shall be given at least sixty (60) days prior to the date on which
MPX intends to initiate service on the particular fiber(s).
4.3 Dark Fiber Lease Form. If MPX exercises an option pursuant to this
---------------------
Section 4, it shall execute a Dark Fiber Lease with TriNet or ▇▇▇▇, as the
case may be, in the form attached hereto as Exhibit C.
SECTION 5 OPERATING STANDARDS
-------------------
5.1 Obligation to Comply With Operating Standards. Each Party agrees that it
---------------------------------------------
will use all commercially reasonable efforts to ensure that the Physical
Facilities it provides for and the services it provides over the Network
conform to the Operating Standards of this Section and Exhibits E and F
hereto.
5.2 Operations Manual. Each Party agrees to adhere to the standards and other
-----------------
obligations stated in the Operations Manual, attached hereto as Exhibit E.
Each Party acknowledges receipt of the Operations Manual in effect on the
day this Agreement is signed, and Gulf States agrees to provide all Parties
with adequate notice of revisions to the manual.
5.3 Intermediate POPs and Regenerator Stations. The location of Intermediate
------------------------------------------
POPs and Regenerator Stations will be determined at the sole discretion of
the Party that has provided that portion of the Network on which the
intermediate POP or Regenerator Station is located provided that such
location permits operation in conformance with the Operating Standards.
Each Party agrees to designate Intermediate POPs or Regenerator Stations if
the addition is required to comply with the Operating Standards. A Party
that designates an intermediate POP or Regenerator Station is responsible
for providing all Operational Space and/or Equipment at any such
location(s) that is necessary for Network operation in conformance with the
Operating Standards. Each Party must notify the other Parties at least
thirty (30) days before initiating operation at a new Intermediate POP or
Regenerator Station or ceasing Network use of an Intermediate POP or
Regenerator Station. Such notice shall include Engineering Minimums for any
new location and shall become part of Exhibit F hereto.
5.4 Engineering Minimums for POPs, Intermediate POPs, Regenerator Stations. The
----------------------------------------------------------------------
Parties agree that they will adhere to the Engineering Minimums stated in
Exhibit F. Each Party will maintain current information as listed in
Exhibit F for its POPs, Intermediate POPs and Regenerator Stations. In
addition to the Engineering Minimums stated in Exhibit F, all Parties are
responsible for meeting any other industry standard requirements for the
installation,
Page 10
operation and maintenance of long-haul fiber-optic transmission systems,
e.g., maximum 5 ohm earth ground at each site.
----
5.5 Interface to Carolina Fibernet. TriNet, with respect to Toccoa, and ▇▇▇▇,
------------------------------
with respect to ▇▇▇▇▇▇▇▇, agree to provide adequate interface to Carolina
Fibernet for the Gulf/TriNet/▇▇▇▇ Ring that complies with the Operating
Standards, and, if any additional agreement with Carolina FiberNet is
necessary, each agrees to take all commercially reasonable measures to
enter into such agreement.
5.6 Maintenance Standards. Each Party shall be solely responsible for
---------------------
maintaining the Physical Facilities it provides for use in the Network in a
manner consistent with the Operating Standards. Each Party agrees to
maintain its Physical Facilities in conformance with the Operating
Standards, in good working condition, reasonable wear and tear excepted,
and, to the extent reasonable, without service interruption.
5.7 Equipment Compatibility and Interconnection. The Parties agree that the
-------------------------------------------
interconnections of Physical Facilities necessary to establish the Network,
as well as the interconnections between the Network and any other network
or carrier, shall be in accordance with accepted industry standards and the
Operating Standards.
5.8 Service Interruption.
--------------------
5.8.1 Service Interruption and Allowances Generally. The Parties
---------------------------------------------
acknowledge and agree that service interruptions and associated
allowances are subject to varying customer definitions and
quantification's, and that each Party providing service on the
Network will be individually responsible for allowances or credits
for the benefit of a customer affected by a service interruption
according to the specific customer contract. Further, the Parties
agree that they will not be liable to each other for service
interruptions that occur on the Network, except on Circuits that are
subject to revenue sharing, or another compensation mechanism
pursuant to Section 2.6 above. With respect only to Circuits that
are subject to revenue or compensation sharing, the Parties involved
will share pro rata the cost of allowances or credits resulting from
service interruption. For example, if a service interruption on a
given circuit results in a credit of twenty percent (20%) of the
monthly circuit price, then the billing Party will issue the twenty
percent (20%) credit to its customer, and the revenue or
compensation shares associated with that Circuit will be reduced by
twenty percent (20%) for that month.
5.8.2 Obligation to Restore Service. In the event that any Party becomes
-----------------------------
aware that any of its Physical Facilities has caused a service
interruption, that Party shall immediately notify the other Parties
and promptly take all reasonable steps necessary to restore service,
including repair or replacement of the affected Physical Facilities.
SECTION 6 ADMINISTRATION OF THE GULF/TRINET/▇▇▇▇ RING
-------------------------------------------
6.1 Books and Records. Gulf States, TriNet and ▇▇▇▇ each shall keep, or cause
-----------------
to be kept, full and complete books, records and accounts with respect to
its traffic or the traffic of its customers over the Gulf/TriNet/▇▇▇▇ Ring.
Such books, records, and accounts shall be retained for a period of five
(5) years after the expiration or termination of this Agreement.
Page 11
6.2 Inspection and Audit. Gulf States, TriNet and ▇▇▇▇ shall, at their own,
--------------------
individual expense, each have access to each other's books, records and
accounts at any reasonable time during normal business hours, upon five (5)
business days' prior written notice, for the purpose of conducting an
inspection or audit or such books, records and accounts to verify the
accuracy of the amounts paid to TriNet and/or ▇▇▇▇ by Gulf States pursuant
to the Revenue Sharing Agreement or amounts paid to Gulf States by TriNet
and/or ▇▇▇▇ pursuant to a future compensation sharing arrangement entered
into pursuant to Section 2.6 above. This obligation to permit inspection
and audit of books, records, and accounts shall extend to only those books,
records, and accounts that relate to operation of the Gulf/TriNet/▇▇▇▇
Ring, and not to any other aspect of a Party's business operations.
6.3 Revenue and Traffic Projections.
-------------------------------
6.3.1 Obligation to Provide Estimates. Every six (6) months, or at such
-------------------------------
other interval as Gulf States, TriNet and ▇▇▇▇ may agree, any of
these three Parties that is selling capacity on the Gulf/TriNet/▇▇▇▇
Ring will provide to the other two written estimates of that Party's
traffic demands and number of customers on the Gulf/TriNet/▇▇▇▇ Ring
for the twelve-(12-) month period beginning on the date the estimate
is provided. The estimate shall include revenue to be allocated to
other Parties to the Gulf/TriNet/▇▇▇▇ Ring pursuant to the Revenue
Sharing Agreement or another compensation-sharing mechanism adopted
pursuant to Section 2.6 above. The first set of projections for
traffic on the Gulf/TriNet/▇▇▇▇ Ring will be due within thirty (30)
days after the signing of this Agreement.
6.3.2 DSl/DS3 Price Floors and OC-N Pricing. Gulf States, TriNet and ▇▇▇▇
-------------------------------------
agree that: (i) on at least an annual basis and prior to the time
that each of them initiates service on the Gulf/TriNet/▇▇▇▇ Ring,
they will agree on a minimum acceptable price for DS1 and DS3
circuits for such Party's service (each, a "Price Floor"); (ii) with
respect to OC-N pricing, Gulf States must obtain TriNet's and ▇▇▇▇'▇
approval for all OC-N (OC-3, 12, 24, etc.) system pricing and
service terms prior to accepting an order for such a system, and
TriNet and ▇▇▇▇ will not unreasonably withhold approval of such
system pricing and service terms; (iii) they may agree to revise a
Price Floor at any time; and (iv) the intent of setting Price Floors
for services provided on the Gulf/TriNet/▇▇▇▇ Ring is to ensure that
TriNet and ▇▇▇▇ will each receive compensation for all circuits
incorporated by the Revenue Sharing Agreement and to provide Gulf
States, TriNet and ▇▇▇▇ with a reasonable cash flow and reasonable
return on investment in the Network.
6.3.3 Obligation to Correct Estimates. If, subsequent to providing these
-------------------------------
estimates, a Party becomes aware of information that, in that
Party's view, reasonably suggests that any estimate provided under
this Section may no longer be accurate and that actual traffic
and/or revenues may either exceed, or fail to reach, the estimated
levels provided in its most recent estimate by twenty-five percent
(25%) or more, the Party shall immediately so advise the other two
Parties to the Gulf/TriNet/▇▇▇▇ Ring, as soon as practicable, and
provide revised estimates reflecting the revised information
concerning projected traffic and revenue.
Page 12
SECTION 7 REGULATORY APPROVALS
--------------------
Each Party is responsible for obtaining and maintaining all federal, state, or
local regulatory approvals or other governmental authorizations necessary to
construct and operate the Network as described herein. Each Party providing
service on the Network shall be responsible for complying with all regulatory
requirements pertaining to the provision of those services, including without
limitation all tariffing requirements. If any regulatory approval for the
Network as an entity is required, the Parties will agree regarding assigning
responsibility for obtaining and maintaining any such approval.
SECTION 8 REPRESENTATIONS AND WARRANTIES
------------------------------
Each Party represents and warrants to the other Parties as follows:
8.1 Organization; Good Standing; Qualification. It is a corporation or
------------------------------------------
partnership duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, it has all
requisite corporate or partnership power and authority to carry on its
business as now conducted, and it is duly qualified and in good standing to
do business in Georgia and all other states where it presently does
business.
8.2 Corporate Power; Authorization; Enforceable Obligations. It has the
-------------------------------------------------------
corporate power, authority and legal right to execute, deliver and perform
this Agreement. The execution, delivery and performance of this Agreement,
and all other agreements and documents contemplated hereby, has been duly
authorized by all necessary corporate or partnership action of such Party,
has not been modified or rescinded, and will not: (i) conflict with or
violate any provision of the organizational documents of such Party, or
(ii) conflict with, breach or constitute a default under any contractual
obligation of such Party. No other corporate or partnership action is
necessary for such Party to enter into and perform under this Agreement and
all other agreements and documents contemplated hereby.
8.3 Due Execution and Binding Effect. It has duly executed this Agreement and
--------------------------------
all other documents to be executed hereunder and all are valid and binding
obligations of such Party, enforceable in accordance with their terms.
8.4 Compliance with Law; Regulatory Authority. It will comply with all material
-----------------------------------------
provisions of applicable federal, state and local laws and regulations,
including without limitation (i) the Communications Act of 1934, as
amended, (ii) the policies, rules and regulations of the Federal
Communications Commission, (iii) Chapter 5 of the Georgia Public Utilities
Law, Ga. Code (S)46-5-1 et seq., and (iv) the policies, rules and
regulations of the Georgia Public Service Commission. Also, execution of
this Agreement and performance hereunder will not violate any legal
requirement applicable to that Party, and it knows of no governmental
proceeding that might restrict the transactions contemplated by this
Agreement.
8.5 No Material Misrepresentation or Omission. With respect to all
-----------------------------------------
communications between the Parties to date and in the future regarding this
Agreement, including regarding the provisions of this Agreement, to the
best of its knowledge, information and belief (i) it has not made, and will
not make, any untrue statement of a material fact, and (ii) it has not
omitted, and will not omit, to state a material fact necessary to make a
statement or fact contained herein or therein not misleading.
Page 13
8.6 Ownership of and Access to Physical Facilities. It has title and/or
----------------------------------------------
interest in, or will at the appropriate time have title or interest in,
including adequate rights of way with respect to, the Physical Facilities
that it will provide or lease for use in the Network. It knows of no reason
why it cannot, or will not be able to, provide adequate access to any of
the Physical Facilities that it will provide or lease for use in the
Network.
8.7 Claims and Encumbrances. There are no claims or encumbrances on the
-----------------------
Physical Facilities it will provide or lease that could materially affect
the operation of the Network, or any ring or route thereof, as provided
under this Agreement.
8.8 Condition of Physical Facilities. The Physical Facilities that it will
--------------------------------
provide or lease to the Network will be, and will remain, of a quality and
condition consistent with communications industry standards, applicable
government regulations, sound business practices, and the Operating
Standards set forth in Section 5 and Exhibits E and F of this Agreement.
SECTION 9 ADDITIONAL COVENANTS
--------------------
9.1 Notice of Action or Proceeding. Each Party agrees to notify the other
------------------------------
Parties within five (5) business days of learning of any pending or
threatened action or proceeding by or before any governmental authority
that might restrain, prohibit or invalidate the transactions contemplated
by this Agreement. Each Party will cooperate with the other Parties in
connection with any such action or proceeding, and will permit any other
Party to participate, at such Party's expense, in any such pending or
threatened action or proceeding for the purpose of enforcing the rights
conferred and obligations imposed by this Agreement.
9.2 Claims and Encumbrances. Each Party agrees that it will keep its Physical
-----------------------
Facilities free from any claim or encumbrance that could materially affect
the operation of the Network as set forth by this Agreement. If any such
claim or encumbrance arises, each Party immediately will inform all other
Parties and, at its own expense, take all steps necessary to remove the
claim or encumbrance.
9.3 Access to Physical Facilities. Each Party agrees that it will provide
-----------------------------
reasonable access to the other Parties to the Physical Facilities of the
Network to permit operation, inspection, repair, maintenance and, if
applicable, removal of Equipment.
9.4 Further Assurances. Each Party agrees to take all additional actions, or
------------------
cause all additional actions to be taken, as may be required for full
effectuation of this Agreement. In addition, to the extent consistent with
its rights and responsibilities set forth in this Agreement, each Party
shall act to promote and further the best interests of the Network
generally. This shall include the responsibility to share information
relevant to the performance and operation of the Network and the right, but
not the obligation, to provide additional capacity on the Network to meet
increased demand through the provision of additional facilities, space
and/or equipment beyond that specified herein.
Page 14
SECTION 10 EXPENSES
--------
Except to the extent specifically provided elsewhere in this Agreement, each
Party will bear the costs and expenses associated with its participation in and
performance under this Agreement, including without limitation (i) the cost to
initiate and maintain operation of the Network and to obtain and maintain any
permit or license required for installation, modification or removal of Physical
Facilities; (ii) all applicable federal, state and local income, sales, use,
excise and ad valorem taxes; (iii) removing claims and encumbrances on Physical
Facilities; and (iv) all costs of employee compensation.
SECTION 11 DISPUTE RESOLUTION
------------------
11.1 Negotiation; Arbitration; Georgia Jurisdiction. The Parties agree that
----------------------------------------------
they will attempt to resolve all claims, disputes and other matters in
question between them under this Agreement by good faith negotiation. Any
claim, dispute or other matter arising out of this Agreement or relating
to the subject matter of this Agreement that cannot be resolved between
the Parties shall be decided by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association
("AAA Rules") then in effect. This Agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration law of any court
having jurisdiction, and each Party hereby consents to the exclusive
jurisdiction of the courts of the State of Georgia in any action or
proceeding with respect to this Agreement. Such arbitration may also
include other parties under contract with the Parties concerning the
matters within this Agreement where issues or claims are related. All
arbitration shall be conducted in Atlanta, Georgia.
11.2 Commencement; Selection of Arbitrator; Award. Notice of the demand for
--------------------------------------------
arbitration shall be filed in writing with the other Parties to this
Agreement and three (3) copies of the notice and three (3) copies of this
Section 11, together with the appropriate filing fee, shall be filed with
the AAA after the claim, dispute or other matter in question has arisen.
In no event shall any such demand be made when institution of legal or
equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of limitation. No
notice to arbitrate in respect to a specifically described claim,
counterclaim, dispute or other matter in question will constitute notice
or consent to arbitrate any other claim, counterclaim, dispute or other
matter in question that is not specifically described in such notice. An
arbitrator who specializes in telecommunications issues shall be selected
by agreement of the Parties to the dispute pursuant to the AAA Rules. If,
however, the Parties to the dispute do not agree on an arbitrator within
twenty (20) days after the date of the notice, the selection of the
arbitrator shall be made pursuant to the AAA Rules from the list of the
National Panel of Commercial Arbitrators maintained by the AAA. Each
arbitration under this Agreement will be completed as expeditiously as
possible under the AAA rules. The award rendered by the arbitrator shall
be final.
11.3 Enforceability. Judgment may be entered on the arbitration award in a
--------------
court having jurisdiction thereof and shall not be subject to modification
or appeal except to the extent permitted under the AAA Rules.
11.4 Expenses. Each Party to the dispute shall pay its own expenses of
--------
arbitration and its pro rata share of the arbitrator's expenses. If, in
the opinion of the arbitrator, any claim, defense, or objection was
unreasonable, the arbitrator may assess, as part of the award, all or any
part of
Page 15
the arbitration expenses of another Party (including reasonable attorneys'
fees) and/or of the arbitrator against the Party raising the unreasonable
claim, defense or objection.
SECTION 12 INDEMNIFICATION AND LIABILITY
-----------------------------
12.1 General Indemnification Obligation. Subject to the terms and conditions of
----------------------------------
Section 11 above regarding Dispute Resolution and Section 15 below
regarding Force Majeure, during the term of this Agreement, each Party
(the "Indemnifying Party") shall reimburse, indemnify, defend and hold
harmless the other Parties and their respective employees, directors,
officers and agents (the "Indemnified Party") with respect to:
12.1.1 all damages, losses, deficiencies, liabilities, costs and expenses
incurred by any Indemnified Party that relate to or arise out of:
(i) the Indemnifying Party's breach or noncompliance with
respect to any representation, warranty or covenant
contained in this Agreement, except for those costs and
other obligations that the Indemnified Party specifically
assumes pursuant to this Agreement;
(ii) all damage to the Physical Facilities provided by the
Indemnified Party when such damage is caused by the
negligence or gross negligence of the Indemnifying Party or
any of its directors, officers, employees, agents,
representatives or subcontractors;
(iii) and all actions, suits, claims, demands or legal,
administrative, arbitration, governmental or other
proceedings by a third party against any Indemnified Party
which result from or arise out of any action or inaction,
during the term of this Agreement, of the Indemnifying
Party or any director, officer, employee, agent,
representative or subcontractor of such Indemnifying Party;
or
12.1.2 all actions, suits, claims, proceedings, investigations, demands,
assessments, fines, judgments, costs and other expenses
(including, without limitation, reasonable attorneys' fees and
expenses) incident to any of the foregoing or to the enforcement
of this Section 12.1.
12.2 Method of Asserting Claims.
--------------------------
12.2.1 Third Party Claims. If any claim or demand for which the
------------------
Indemnifying Party would be liable to an Indemnified Party under
this Agreement is asserted against an Indemnified Party (each, a
"Claim") by a third party, the Indemnified Party shall promptly
after identifying the Claim, notify the Indemnifying Party of such
Claim, specifying the nature of such Claim and the amount, or a
reasonable estimate, of such Claim (which estimate shall not be
conclusive of the final amount of such claim and demand) (the
"Claim Notice"). The Indemnifying Party shall have twenty (20)
days from receipt of the Claim Notice (the "Claim Notice Period")
to notify the Indemnified Party whether or not it disputes its
liability to the Indemnified Party under this Agreement with
respect to such Claim. If the
Page 16
Indemnifying Party disputes its liability with respect to such
Claim or the amount of such Claim, such dispute shall be resolved
in accordance with Section 11 of this Agreement and the
Indemnified Party shall continue to defend or otherwise prosecute
the Claim and to keep the Indemnifying Party advised of the
status of such Claim.
12.2.2 Control of Defense or Settlement. Unless the Indemnifying Party
--------------------------------
has disputed its liability under Section 12.2.1 above, the
Indemnifying Party shall have the right to control the defense or
settlement of any such Claim by notifying the Indemnified Party
within the Claim Notice Period; provided, however, that the
Indemnifying Party shall not settle any such Claim without the
prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld or delayed. If the Indemnified
Party desires to participate in any such defense or settlement,
it may do so as its sole cost and expense.
12.2.3 Other Claims. If an Indemnified Party has a Claim against an
------------
Indemnifying Party that has not been asserted by a third party,
the Indemnified Party shall promptly send a Claim Notice with
respect to such Claim to the Indemnifying Party. If the
Indemnifying Party disputes its liability with respect to such
Claim, it must so notify the Indemnified Party within the Claim
Notice Period, and the dispute shall be resolved in accordance
with Section 11 of this Agreement. If the Indemnifying Party does
not timely notify that it disputes such Claim, the Claim shall be
conclusively deemed a liability of the Indemnifying Party.
12.3 Payment. When either a final and non-appealable judgment of liability, a
-------
settlement and/or a release of claims is obtained, the Indemnifying Party
shall pay to the Indemnified Party, within twenty (20) days after such
event, the amount of any Claim for indemnification made under this
Agreement. Payment shall be by wire transfer or immediately available
funds as the Indemnified Party may designate. Upon the payment in full of
any Claim, the Indemnifying Party shall be subrogated to the rights of
the Indemnified Party against any person, firm or corporation with
respect to the subject matter of such Claim.
12.4 Liability.
---------
12.4.1 Service Interruption. Liability for service interruption is
--------------------
governed by Section 5 above.
12.4.2 No Liability. No Party shall be liable to another Party for any
------------
indirect, consequential, special, incidental or punitive damages,
or for lost profits, related to this Agreement.
SECTION 13 SPECIFIC PERFORMANCE
--------------------
The Parties agree that the subject matter of this Agreement is unique, that
money damages would not be a sufficient remedy for any breach of this Agreement,
and that each Party shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Agreement, but shall be in
addition to all other remedies to the Parties available under this Agreement.
Page 17
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ AND BREACH
-----------------------------
14.1 Term. The term of this Agreement commences on the date of full execution
----
and, unless earlier terminated in accordance with this Section, will
continue for ten (10) years (the "Initial Term"). The Agreement may renew
for two Supplemental Terms of five (5) years each pursuant to the written
agreement of all Parties. The Parties shall discuss whether to renew at
least one hundred eighty (180) days prior to the expiration of each term.
14.2 Breach. If a Party breaches this Agreement, any other Party may notify
------
the breaching Party of the breach and request that the breaching Party
cure the breach. The breaching Party shall have ten (10) days from
receipt of such notification to cure the breach or, if the breaching
Party and the notifying Party agree that such breach cannot be cured
within the ten- (10-) day period, such longer period as may be necessary
to cure such breach, so long as the breaching Party is diligently
pursuing cure ("Cure Period"). The Parties acknowledge that time is of
the essence with respect to breach and cure. During any Cure Period, the
breaching Party shall periodically inform the other Parties of the status
of the attempt to cure.
14.3 Termination. This Agreement may be terminated only for failure to cure a
-----------
Material Breach (as defined below) or by written agreement of three (3)
Parties.
14.3.1 Failure to Cure Material Breach. If a Party falls to cure a
-------------------------------
Material Breach within a reasonable Cure Period, any two (2)
other Parties may terminate the Agreement by notifying all other
Parties ("Termination Notice"). A Termination Notice shall state
the basis for the termination and a Termination Date, which may
be the date on the Termination Notice.
14.3.2 Material Breach Defined. For purposes of this Agreement, breach
of Sections 3, 5, 7, and 16 shall constitute Material Breach. All
other breaches shall be non-material, unless the breach has a
significant adverse effect, or is likely to significantly and
adversely effect, the ability of another Party to exercise
rights, receive benefits or perform obligations under this
Agreement.
14.4 Effect of Expiration or Termination. On expiration or complete
-----------------------------------
termination of this Agreement, the Parties will agree on a schedule,
requiring no more than thirty (30) days, for disconnecting the Physical
Facilities, removing Equipment, restoring Operational Space to its former
condition and paying any outstanding money obligations, such as revenue
sharing and claims for indemnification ("Disconnect Period"). Each Party
will bear its own expenses to accomplish these tasks. After the
Disconnect Period, this Agreement shall be of no further force or effect,
and no Party shall be liable to another Party, except pursuant to the
terms that survive, which are listed in Section 18.3 below.
SECTION 15 FORCE MAJEURE
-------------
If a Party's full performance of its obligations under this Agreement is
prevented by a cause beyond its reasonable control, the Party shall be excused
from performance on a day-to-day basis to the extent of the disability. Causes
constituting such prevention under this Section include, without limitation,
acts of God, fire, explosion, vandalism, weather conditions, insurrection, riot,
war, or any governmental
Page 18
requirement. A Party excused from performance based on this Section shall use
all commercially reasonable efforts under the circumstances to avoid or remove
the cause of nonperformance, and is obligated to perform when the cause no
longer prevents performance.
SECTION 16 INTANGIBLE PROPERTY
-------------------
16.1 Confidential Information. "Confidential Information" means (i) all
------------------------
confidential, proprietary or secret information of the disclosing Party
other than "Trade Secrets" (as defined below) that is of intangible or
tangible value to the disclosing Party, that is neither public
information nor generally known or available to the disclosing Party's
competitors, but rather is known or available only to the disclosing
Party and its employees, independent contractors, customers or agents to
whom such information must be confided to apply it to the uses intended
(including, without limitation, any customer or lead lists and other
customer information regarding the disclosing party's customers or
potential customers). Confidential Information shall not include (i)
information in the public domain (other than as a result of unauthorized
disclosure by the receiving Party or someone to whom the receiving Party
has disclosed the information), (ii) information previously known by the
receiving Party on a non-confidential basis, and (iii) information
disclosed by a third party with no confidential obligations associated
therewith. Each Party is responsible for clearly identifying information
over which it claims confidentiality under this Section 16.
16.2 Intangible Property. "Intangible Property" means the Confidential
-------------------
Information, the Marks (as defined below) and the Trade Secrets, whether
or not all or any portion thereof is or may be validly copyrighted,
patented or registered as a trademark or service ▇▇▇▇.
16.3 Marks. "Marks" means each Party's corporate name, service marks,
-----
trademarks, trade names, insignias, symbols, decorative designs and
slogans and the trademarks and service marks of each Party's Affiliates,
both presently existing or hereafter created or used, whether each Party
owns, uses or is licenses or sublicenses to use the same.
16.4 Trade Secrets. "Trade Secrets" means information related to the business
-------------
or services of the disclosing Party that (i) derives economic value,
actual or potential from not being generally known to or readily
ascertainable by other persons who can obtain economic value from its
disclosure or use; and (ii) is the subject of efforts by the disclosing
Party that are reasonable under the circumstances to maintain its
secrecy, including without limitation (a) marking any information reduced
to tangible form clearly and conspicuously with a legend identifying its
confidential or proprietary nature; (b) identifying any oral presentation
or communication as confidential immediately before, during or after such
oral presentation or communication; or (c) otherwise treating such
information as confidential. Assuming the criteria in (i) and (ii) above
are met, Trade Secrets, include without limitation, technical and non-
technical data related to the designs, programs, inventions, finances,
actual or potential customers and suppliers, research, development,
marketing, existing and future products and employees of the disclosing
Party.
16.5 Obligation and Acknowledgments. Each Party agrees to provide the other
------------------------------
Parties such information as shall be reasonably necessary to permit the
other party to perform its obligations hereunder. In addition to any
obligation to provide information that is Confidential Information, the
Parties acknowledge and agree that: (i) they may become aware of each
other's Confidential
Page 19
Information and/or Trade Secrets in the course of this Agreement; (ii)
each Party's Intangible Property represents a substantial investment by
that Party; (iii) each Party's Intangible Property is secret,
confidential and unique; (iv) at least as between the disclosing Party
and the receiving Party, the disclosing Party is the sole owner of all
right, title and interest in and to the Intangible Property; (v) any
right the receiving Party has to use the Intangible Property is derived
solely from this Agreement; (vi) this Agreement; (vi) this Agreement does
not confer upon the receiving Party any rights, goodwill or other
interests in any of the Intangible Property; (vii) any disclosure or use
of the Intangible Property, except as otherwise authorized by the
Disclosing Party in writing, or any other violation of the provisions of
this Section 16, would be wrongful and cause immediate, significant,
continuing and irreparable injury and damage to the disclosing Party that
is not fully compensable by monetary damages; and (viii) notwithstanding
Section 11 above regarding Dispute Resolution, should the receiving Party
breach or threaten to breach any provision of this Section 16, the
disclosing Party shall be entitled to obtain immediate relief and
remedies in a court of competent jurisdiction, cumulative of and in
addition to any other rights or remedies to which the disclosing Party
may be entitled by this Agreement.
16.6 Treatment of Intangible Property. During the term of this Agreement, and
--------------------------------
thereafter as provided in this Agreement, a receiving Party shall regard
and treat a disclosing Party's Intangible Property as strictly
confidential and wholly owned by the disclosing Party. The receiving
Party shall exercise its best efforts to ensure the continued
confidentiality and ownership by the disclosing Party of all Intangible
Property known by or disclosed or made available to the receiving Party,
its employees or Affiliates. The receiving Party shall cooperate with any
additional confidentiality and other similar, reasonable requirements the
disclosing Party may establish from time to time for the protection of
the Intangible Property. The receiving Party shall not, during the term
of this Agreement or thereafter, (i) claim any interest in or attack the
title or any rights of the disclosing Party in or to any or all of the
disclosing Party's Intangible Property or (ii) take any action that would
adversely affect the disclosing Party's rights therein, or (iii) remove,
alter or obfuscate (or permit the removal, alteration or obfuscation of)
any of the Marks on any property owned or licensed by the disclosing
Party. The receiving Party shall be liable to the disclosing Party for
any actual proved damages resulting from the unauthorized disclosure of
the disclosing Party's Intangible Property by the receiving Party's
employees or Affiliates.
16.7 Use of Marks. The receiving Party shall use the Marks of the disclosing
------------
Party only with such notices of proprietary rights, ownership or
registration and such words qualifying or identifying the relationship of
the disclosing Party and the Receiving Party. The receiving Party shall
not use any of the Marks of the disclosing Party, or any material portion
thereof, as a part of the receiving Party's corporate or trade name or
with any prefix, suffix or other modifying words, terms, designs or
symbols, or in any modified form.
16.8 Non-Disclosure. At all times during the term of this Agreement and: (i)
--------------
with respect to any Confidential Information, for two (2) years after any
expiration or termination hereof; and (ii) with respect to each item of
Trade Secrets, for such time as such item shall constitute a trade secret
under applicable law, the receiving Party and its Affiliates shall
maintain another Party's Confidential Information and Trade Secrets in
strict confidence, and neither the receiving Party nor any of its
Affiliates shall, for any reason, in any form or manner, whether directly
or indirectly: (a) sell, lend, lease, distribute, market, license,
sublicense, give, transfer, assign, show, divulge, disclose, disseminate
or otherwise communicate another Party's Confidential Information or
Trade Secrets to any third party; or (b) use another Party's Confidential
Page 20
Information or Trade Secrets for any purpose other than the purposes of
this Agreement; or (c) keep another Party's Confidential Information or
Trade Secrets in any form after the expiration or any termination of this
Agreement; or (d) duplicate, reproduce, copy, distribute, disclose or
disseminate another Party's Confidential Information or Trade Secrets.
SECTION 17 OTHER VENTURES
--------------
This Agreement is non-exclusive. Each Party may undertake other business
ventures of any nature, and may conduct all activities, including in connection
with communications services, except as specifically limited in this Agreement.
SECTION 18 GENERAL PROVISIONS
------------------
18.1 Amendment. This Agreement may not be amended except in writing signed by
---------
all Parties; provided, however, that (i) the Revenue Sharing Agreement
and provisions of this Agreement that relate to the revenue sharing
arrangement between Gulf States, TriNet and ▇▇▇▇ may be amended only by a
writing signed by those Parties, and (ii) a Dark Fiber Lease may be
amended only by a writing signed by the parties to the particular Dark
Fiber Lease, and (iii) provisions of this Agreement that relate to the
option to lease dark fiber may be amended only by a writing signed by
TriNet, ▇▇▇▇ and MPX.
18.2 Partial Exercise of Rights. A Party's failure to enforce a provision of
--------------------------
this Agreement or to exercise a right or privilege hereunder, including
waiver of another Party's act or omission, shall not be construed as a
waiver of any subsequent act or omission or any provisions, rights or
privileges under this Agreement.
18.3 Survival. The representations, warranties, covenants and agreements
--------
hereto, or in any other document executed pursuant to this Agreement,
shall survive the execution and delivery of this Agreement. The Parties'
obligations specified in Section 6.1 (Books and Records), 6.2 (Inspection
and Audit), Section 11 (Dispute Resolution), Section 12 (Indemnification
and Liability), Section 16 (Intangible Property) and Section 14.4 (Effect
of Expiration or Termination) shall survive the expiration or termination
of this Agreement.
18.4 Merger. This Agreement, including all Exhibits, constitutes the entire
------
agreement between the Parties with respect to the subject matters hereof,
and supersedes all prior oral or written agreements, commitments or
understandings on those issues.
18.5 Binding Effect; Assignment. This Agreement shall be binding upon and
--------------------------
inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign any rights or delegate any duties
under this Agreement, except with the prior written permission of all
other Parties, which no Party shall unreasonably withhold, except: (i) a
Party may subcontract for the deployment, repair, maintenance and removal
of Physical Facilities upon reasonable notice to any affected Party; and
(ii) a Party may, at any time, assign any rights or delegate any duties
under this Agreement to an Affiliate, provided that any such assignment
shall not relieve the assigning Party of its obligations hereunder. The
Parties acknowledge that Gulf States has an exclusive capacity
arrangement with its Affiliate, Interstate FiberNet, and that Gulf States
will delegate to Interstate FiberNet certain duties pursuant to this
Agreement.
Page 21
18.6 Governing Law. This Agreement is governed by the laws of Georgia,
-------------
without reference to the rules regarding choice of law.
18.7 Severability. If any part of any provision of this Agreement, or any
------------
other document incorporated herein, is found to be invalid or
unenforceable under applicable law, then that part of the Agreement or
incorporated document shall be ineffective to the extent of such
invalidity only, and shall not affect the remaining parts of the
provision or the remaining provisions of this Agreement.
18.8 Limitation on Benefits and Enforcement. The Parties intend that no
--------------------------------------
person or entity other than one of them is or shall be entitled to bring
any action to enforce any provision of this Agreement against any of
them. The covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable
only by the Parties, or their respective successors and permitted
assigns.
18.9 Recovery of Costs of Enforcement. If any Party sues another Party to
--------------------------------
enforce any provision of this Agreement, 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.
18.10 Notices. All notices, request or other communications under this
-------
Agreement shall be in writing and may be transmitted either by first-
class mail, courier or confirmed telecopy, addressed as stated below.
Notice under this Agreement is deemed given on the date of transmission
by the Party giving notice. Each Party is obligated to notify the others
of changes in the address or addressee to whom notices to that Party
should be sent.
To Gulf States and Interstate FiberNet:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and CFO
Gulf States FiberNet/Interstate FiberNet
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (TELEPHONE)
▇▇▇-▇▇▇-▇▇▇▇ (TELECOPY)
To TriNet:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TriNet, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (TELEPHONE)
▇▇▇-▇▇▇-▇▇▇▇ (TELECOPY)
Page 22
To ▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
▇▇▇▇ Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (TELEPHONE)
▇▇▇-▇▇▇-▇▇▇▇ (TELECOPY)
To MPX:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Operations Manager
MPX Systems Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (TELEPHONE)
▇▇▇-▇▇▇-▇▇▇▇ (TELECOPY)
18.11 Interpretation. In the case of any alleged ambiguity in any term of this
--------------
Agreement, such term shall not be construed in favor of or against any
Party by reason of the participation of such Party or its attorneys in
the negotiation or drafting of this Agreement.
Page 23
18.12 Counterparts. To facilitate execution, this Agreement may be executed in
------------
counterpart. All counterparts together will constitute a single
agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on
March 25, 1996.
GULF STATES FIBERNET TRINET, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- ----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President and CEO
for Gulf States FiberNet for TRiNet, Inc.
▇▇▇▇ COMMUNICATIONS, INC. MPX SYSTEMS, INC.
/s/ J. ▇▇▇ ▇▇▇▇▇▇
-------------------------- ----------------------------
▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President Executive Vice President
for ▇▇▇▇ Communications, Inc. for MPX Systems, Inc.
By its signature below, Interstate FiberNet acknowledges that it has read this
Agreement and agrees to abide by its terms.
INTERSTATE FIBERNET
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
for Interstate FiberNet
Page 24
To MPX:
---------------------------
---------------------------
---------------------------
---------------------------
18.11 Interpretation. In the case of any alleged ambiguity in any term of this
--------------
Agreement, such term shall not be construed in favor of or against any
Party by reason of the participation of such Party or its attorneys in
the negotiation or drafting of this Agreement.
18.12 Counterparts. To facilitate execution, this Agreement may be executed in
------------
counterpart. All counterparts together constitute single agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on
March 25, 1996.
GULF STATES FIBERNET TRINET, INC.
------------------------------ ---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President President and CEO
for Gulf States FiberNet for TriNet, Inc.
▇▇▇▇ COMMUNICATIONS, INC. MPX SYSTEMS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ ---------------------------
▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President Executive Vice President
for ▇▇▇▇ Communications, Inc. for MPX Systems, Inc.
By its signature below, Interstate FiberNet acknowledges that it has read this
Agreement and agrees to abide by its terms.
INTERSTATE FIBERNET
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
for Interstate FiberNet
Page 25
EXHIBIT A
POINTS OF PRESENCE
POP Contributing Party Identification of Facility
--- ------------------ --------------------------
Winder Gulf States and MPX ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gainesville Gulf States and TriNet ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Toccoa TriNet ▇▇▇▇'▇ Plaza, Unit No.4
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ and MPX ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT C
---------
REVENUE SHARING AGREEMENT
AMONG Gulf States FiberNet, a Georgia general partnership ("Gulf States"),
TriNet, Inc. a Georgia corporation ("TriNet"), and ▇▇▇▇ Communications, Inc., a
Georgia corporation ("▇▇▇▇")(collectively "Parties").
RECITALS
WHEREAS, Gulf States, TriNet and ▇▇▇▇ are parties to a Network Operating
Agreement along with MPX Systems, Inc., dated March 25, 1996, to form a fiber-
optic network in North Georgia ("Network Operating Agreement");
WHEREAS, the Gulf/TriNet/▇▇▇▇ Ring of the Network, as defined by the Network
Operating Agreement, will carry traffic designated by the Parties to this
Agreement;
WHEREAS, pursuant to the Network Operating Agreement, Gulf States, TriNet and
▇▇▇▇ will share revenue from services that Gulf States provides over the
Gulf/TriNet/▇▇▇▇ Ring; and
WHEREAS, under the Network Operating Agreement, Gulf States, TriNet and ▇▇▇▇
have agreed to enter into a separate agreement regarding the sharing of revenue
from the Gulf/TriNet/▇▇▇▇ Ring.
NOW, THEREFORE, in consideration of the mutual promises and valuable
consideration contained herein, the sufficiency of which is hereby acknowledged,
the Parties agree as follows:
1. DEFINITIONS. In addition to any definitions specifically adopted herein, the
-----------
Parties adopt and incorporate the Definitions set forth in Section 1 of the
Network Operating Agreement.
2. AGREEMENT TO SHARE REVENUES. Pursuant to Section 2.4.1.1 of the Network
---------------------------
Operating Agreement, the Parties will jointly operate the Gulf/TriNet/▇▇▇▇
Ring of the Network. As specified in Section 2.6 of the Network Operating
Agreement, the Parties will share revenues from the Gulf/TriNet/▇▇▇▇ Ring
pursuant to this Agreement.
3. RESPONSIBILITIES OF THE PARTIES.
-------------------------------
a. Gulf States. As specified in Sections 2 and 6 of the Network Operating
-----------
Agreement, Gulf States will:
(i) sell capacity on Traversing and Non-Traversing Circuits, both as
defined below, on the Gulf/TriNet/▇▇▇▇ Ring to third parties;
(ii) calculate, collect and apportion the revenues from each Traversing
and Non-Traversing Circuit;
(iii) pay TriNet and ▇▇▇▇ each its pro rata share of revenues, pursuant
to Section 9 below, pursuant to the formula and example in
Sections 5 and 7 below and the terms of Section 9 below;
(iv) keep accurate records regarding the amount of traffic and
revenues attributable to each Traversing and Non-Traversing
Circuit;
(v) prepare traffic and revenue forecasts for the Gulf/TriNet/▇▇▇▇
Ring pursuant to Section 6.2 of the Network Operating Agreement;
and
(vi) provide both TriNet and ▇▇▇▇ with such records and forecasts.
b. TriNet and ▇▇▇▇. As specified in Sections 2 and 3 of the Network
---------------
Operating Agreement, TriNet and ▇▇▇▇ will:
(i) transmit Gulf States' communications over the Gulf/TriNet/▇▇▇▇
Ring, and to such additional points as may be determined and
agreed to by the parties; and
(ii) provide an interface at Toccoa and Hartwell with Carolina
FiberNet.
4. CLASSIFICATION OF CIRCUITS. Circuits on the Gulf/TriNet/▇▇▇▇ Ring will be
--------------------------
either Traversing or Non-Traversing, each as defined below.
a. Traversing Circuits Defined. A Traversing Circuit is any individual
---------------------------
circuit, sold by Gulf States, that traverses the Network on the
Gulf/TriNet/▇▇▇▇ Ring as presently constituted or later expanded,
entering the Network at either Toccoa or Hartwell and exiting at either
Gainesville or Winder. A Traversing Circuit may extend outward into
another network, and may not constitute a communication that begins or
ends in the Network.
b. Non-Traversing Circuits Defined. A Non-Traversing Circuit is any
-------------------------------
individual circuit sold by Gulf States, pursuant to Section 2.4.1.3 of
the NOA, that does not meet the definition of Traversing Circuit in
Section 4 above, and that carries communications that enter or exit the
Network over a Gulf States-supplied circuit.
5. CALCULATING TRINET'S AND ▇▇▇▇'▇ PRO RATA SHARE OF REVENUES FROM TRAVERSING
--------------------------------------------------------------------------
CIRCUITS.
--------
a. Circuit Components. Each Traversing Circuit may be composed of up to
------------------
three components:
(i) a component for transit leading to the Network;
(ii) a component for transit in the Network; and
(iii) a component for transit beyond the Network.
b. Price Terms and Components. The price of a Traversing Circuit is the
--------------------------
amount of revenue billed to Gulf States' customer for the Circuit,
including any promotional or
-2-
outage credits. For purposes of revenue sharing, the components of a
Traversing Circuit will be denominated as follows:
M(AZ) = Total V & H mileage from end-to-end (the mileage on
which Gulf States' has based its price to the customer).
M(AG) = V & H mileage from the A end point to the Gainesville
pop.
M(GT) = V & H mileage from Gainesville to Toccoa (the mileage on
the Network).
M(TZ) = V & H mileage from Toccoa to the Z end point, if
applicable.
R = Total revenue billed to Gulf States' customer for the
Circuit.
X = TriNet or ▇▇▇▇.
R(X) = Pro rata revenue share that Gulf States will pay each to
TriNet and ▇▇▇▇.
c. Calculating TriNet's and ▇▇▇▇'▇ Pro Rata Shares. The total revenue that
-----------------------------------------------
TriNet and ▇▇▇▇ will share for communications over Traversing Circuits is
calculated according to the following formula:
R(X) = (R[M(GT)/(M(AG)+M(GT)) x
(M(AG)+M(GT))/(M(AG)+M(GT)+M(TZ))]) / 2
The formula may also be expressed as:
R(X) = R[M(GT)/(M(AG)+M(GT)+M(TZ))]
---------------------------
2
d. Example of Application of Formula. Assume a DS-3 line sold by Gulf States
---------------------------------
between Atlanta and Charlotte at $.055/DS0 V&H mile, for a total circuit
price of $8,501.00. For purposes of this example, a DS-3 line is defined as
a digital data transmission operating over fiber-optic lines at a
transmission speed of 44.6 Mbps. In addition:
M(AZ) = 230 miles
M(AG) = 50 miles
M(GT) = 35 miles
M(TZ) = 153 miles
-3-
Accordingly, under this example, TriNet and ▇▇▇▇ would each receive
payment from Gulf States in the following amount, which would
constitute the pro rata share of the revenue to which each would be
entitled:
R(X) = $8,501 [35/(50+35+153)] = $8,501 [35/238] = $625
------------------------------------------------
2
6. CALCULATING TRINET'S AND ▇▇▇▇'▇ PRO RATA SHARE OF REVENUES FROM NON-
--------------------------------------------------------------------
TRAVERSING CIRCUITS.
-------------------
a. Circuit Components. Each Non-Traversing Circuit may be composed of up
------------------
to two components:
(i) a component for transit entering (or exiting) the Network; and
(ii) a component for transit ending (or beginning) in the Network.
b. Price Terms and Components. The price of a Non-Traversing Circuit is
--------------------------
the amount of revenue billed to Gulf States' customer, including any
promotional or outage credits. For purposes of revenue sharing, the
components of a Non-Traversing Circuit will be denominated as
follows:
M(AZ) = Total V & H mileage from end-to-end (the mileage on which
Gulf States' has based its price to the customer).
M(AG) = V & H mileage from the A end point on Gulf States' network
to the Gainesville pop.
M(GZ) = V & H mileage from Gainesville to the beginning (or ending)
POP on the Network.
R = Total revenue billed to Gulf States' customer for the
Circuit.
X = TriNet or ▇▇▇▇.
R(X) = Pro rata revenue share that Gulf States will pay each to
TriNet and ▇▇▇▇.
c. Calculating TriNet's and ▇▇▇▇'▇ Pro Rata Shares. The total revenue
-----------------------------------------------
that TriNet and ▇▇▇▇ will share for communications over Non-Traversing
Circuits is calculated according to the following formula:
R(X) = R[M(GZ)/(M(AG)+M(GZ))]
----------------------
2
d. Example of Application of Formula. Assume a DS-3 line sold by Gulf
---------------------------------
States between Atlanta and Hartwell at $.055/DSO V&H mile, for a total
circuit price of $3,326.00.
-4-
For purposes of this example, a DS-3 line is defined as a digital
data transmission operating over fiber-optic lines at a transmission
speed of 44.6 Mbps. In addition:
M(AZ) = 90 miles
M(AG) = 50 miles
M(GZ) = 48 miles
Accordingly, under this example, TriNet and ▇▇▇▇ would each receive
payment from Gulf States in the following amount, which would
constitute the pro rata share of the revenue to which each would be
entitled:
R(X) = $3,326 [48/98] = $814.53
--------------
2
7. TERM AND TERMINATION. This Agreement is coterminous with the Network
--------------------
Operating Agreement. Renewal or termination of the Network Operating
Agreement will constitute renewal or termination also of this Agreement.
This Agreement may not be terminated other than at the time of termination
or expiration of the Initial Term or any Supplemental Term except pursuant
to an amendment to the Network Operating Agreement that calls for
termination of this Agreement.
8. PAYMENT. The Parties agree that Gulf States will pay TriNet and ▇▇▇▇ on a
-------
monthly basis. Payments are due the last day of each month, and each
payment shall represent the revenue shares for the previous month. For
example, the payment due March 31st represents revenues shares earned
during February. Any payment not received by the tenth (10th) day of the
month after payment is due shall incur a late fee, calculated at the rate
of one and one-half percent (1.5%) per month (or, if lower, the maximum
lawful rate) based on the amount of the monthly payment due. For example,
if the payment due on March 31st is not received by April 10, Gulf States
will incur the late fee beginning April 1st through the date payment is
received. A statement showing the calculation of the payment amount shall
accompany each payment.
9. DISPUTE RESOLUTION AND AUDIT. Disputes under this Agreement will be handled
----------------------------
pursuant to the procedures established in the Network Operating Agreement;
provided, however, that (i) if either TriNet or ▇▇▇▇ questions the
calculation and/or payment of its pro rata share or the records regarding
individual Circuits based on a statement or payment received from Gulf
States, the questioning company must bring such questions to Gulf States'
attention within thirty (30) days of receiving the questioned records or
revenues, and (ii) if TriNet or ▇▇▇▇ disputes calculation or payment based
on an audit or inspection, and the audit or inspection shows that Gulf
States' recording or apportionment of revenue was incorrect by more than
five percent (5%), Gulf States shall pay all reasonable costs actually
incurred by TriNet and/or ▇▇▇▇ in connection with such audit or inspection,
and shall refund, to TriNet and/or ▇▇▇▇ as appropriate, any amount of
revenue that TriNet and/or ▇▇▇▇ should have received.
10. INCORPORATION OF NETWORK OPERATING AGREEMENT. The Parties acknowledge
--------------------------------------------
that this Revenue Sharing Agreement is subject to the terms and conditions
of the Network Operating Agreement and is incorporated by reference into
the Network Operating
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Agreement. The Parties agree to be bound by the terms and conditions of the
Network Operating Agreement, except as specifically set forth herein.
11. COUNTERPARTS. To facilitate execution, this Agreement may be signed in
------------
counterpart. All counterparts together shall constitute a single Agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on
3/25 , 1996.
--------
GULF STATES FIBERNET TRINET, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- --------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO President and CEO
for Gulf States FiberNet for TriNet, Inc.
▇▇▇▇ COMMUNICATIONS, INC.
/s/ J. ▇▇▇ ▇▇▇▇▇▇
--------------------------
J. ▇▇▇ ▇▇▇▇▇▇
President
for ▇▇▇▇ Communications, Inc.
By its signature below, Interstate FiberNet acknowledges that it has read this
Agreement and agrees to abide by its terms.
INTERSTATE FIBERNET, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
for Interstate FiberNet
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EXHIBIT D
---------
DARK FIBER LEASE
BETWEEN [INSERT TRINET OR ▇▇▇▇], a Georgia corporation ("Lessor"), and MPX
Systems, Inc., a South Carolina corporation ("Lessee") (collectively "Parties").
RECITALS
WHEREAS, Lessor and Lessee are parties to a Network Operating Agreement
between Gulf States Fibernet, Trinet, Inc., ▇▇▇▇ Communications, Inc. and MPX
Systems, Inc., dated __________, to form a fiber-optic network in North Georgia
("Network Operating Agreement");
WHEREAS, pursuant to Section 4 of such Network Operating Agreement, Lessor
granted Lessee an Option to lease from Lessor Dark Fibers, as defined in the
Network Operating Agreement; and
WHEREAS, Lessee has given effective notice under Section 4 of the Network
Operating Agreement of its intent to exercise the Option to the extent indicated
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and valuable
consideration contained herein, the sufficiency of which is hereby acknowledged,
the Parties agree as follows:
1. DEFINITIONS. In addition to any definitions specifically adopted herein,
-----------
the Parties adopt and incorporate the Definitions set forth in Section 1 of
the Network Operating Agreement.
2. LEASED PROPERTY. Subject to the terms and conditions set forth below and to
---------------
the provisions of the Network Operating Agreement, Lessor leases to Lessee,
and Lessee rents from Lessor, the following Dark Fiber ("Leased Property"):
a. Mileage and Capacity. This Agreement pertains to [STATE THE MILEAGE
--------------------
AND CAPACITY TO BE LEASED].
b. Location. [CHOOSE ONE OF TWO OPTIONS: (1) IF TRINET, "THE DARK FIBER
--------
LEASED HEREUNDER SHALL CONNECT THE GAINESVILLE AND TOCCOA POPS ON THE
NETWORK (2) IF ▇▇▇▇, "THE DARK FIBER LEASED HEREUNDER SHALL CONNECT
THE TOCCOA AND HARTWELL POPS ON THE NETWORK."]
3. OWNERSHIP AND USE OF DARK FIBER. The Leased Property will remain the sole
-------------------------------
property of Lessor. This Agreement is in no way intended to convey to
Lessee any property right or interest in the Leased Property, except for
the contractual right to use the Leased Property as specifically set forth
in this Agreement and the Network Operating Agreement. Lessee agrees not to
sell, transfer or encumber the Leased Property in any way.
4. RENT. In consideration for the use of the Leased Property, Lessee shall pay
----
Lessor rent pursuant to this Section.
a. Initial Lease Term. The rent during the Initial Lease Term of this
------------------
Agreement shall be $32.00 per route mile per month per fiber ("Base
Price"), without deduction or offset, which shall begin to accrue on
the first day of the Lease Period. For purposes of this Agreement,
Lease Period means the period of time beginning with complete
signature of this Agreement and ending with termination or expiration
of the lease set forth hereunder. The total monthly rent for the
Initial Lease Term shall be $_________. The Base Price shall remain
in effect for the Initial Lease Term of this Agreement, as defined
below in Section 8.
b. Supplemental Lease Term(s). With respect to any Supplemental Lease
--------------------------
Term, as defined below, the Parties may negotiate a rent other than
the Base Price; provided, however, that the rent during any
Supplemental Lease Term shall not exceed $64.00 per route mile of
Dark Fiber per month. The Parties shall agree in writing regarding
the rent for any Supplemental Lease Term, and such writing shall
become a part of this Agreement. If the Parties are unable to agree
on a rent for any Supplemental Lease Term of this Agreement, this
lease will terminate. Termination of this lease for the Parties
failure to agree on a rent for any Supplemental Lease Term shall not
affect the validity of the Network Operating Agreement.
5. PAYMENT. Lessee agrees to pay rent in advance before the first (1st) day of
-------
each month that this Agreement is in effect. Rent for any partial month
shall be prorated accordingly, and the rent from the commencement of the
Lease Period to the first (1st) day of the next month shall be due on the
day the Lease Period commences. Unless Lessor otherwise directs, all
payments shall be sent to Lessor at the address stated in Section 18.10 of
the Network Operating Agreement. If Lessee fails to make any rent payment
or pay any other sum it is required to pay under this Agreement within ten
(10) days after the due date thereof, Lessee shall pay interest on such
delinquent payment from the due date at the rate of one and one-half
percent (1.5%) per month, (or the maximum lawful rate, whichever is lower)
until such amounts are paid in full.
6. ACTIVATION. Lessee shall be responsible for providing the Transmission
----------
Services Support to activate the Dark Fiber leased hereunder.
7. REPAIRS AND REPLACEMENTS. Lessor shall keep the Leased Property in good
------------------------
condition, reasonable wear and tear expected, and, at its own expense, make
all repairs and replacements necessary for its preservation. All such
repairs and replacements shall be and remain the property of Lessor.
-2-
8. TERM AND TERMINATION. This Agreement commences on the date when all Parties
--------------------
have signed at least one counterpart. The Initial Lease Term of this
Agreement and any Supplemental Lease Term(s) of this Agreement ("the Lease
Period") shall terminate on the same date(s) as the Initial Term and any
Supplemental Term(s), respectively, of the Network Operating Agreement or
termination of the Network Operating Agreement will constitute renewal or
termination also of this Agreement.
9. TAXES. [INSERT TRINET OR ▇▇▇▇] shall be responsible for all applicable
-----
taxes with respect to the Leased Property and shall retain the right to
depreciate Lease Fiber.
10. INCORPORATION OF NETWORK OPERATING AGREEMENT. The Parties acknowledge
--------------------------------------------
that this Dark Fiber Lease is subject to the terms and conditions of the
Network Operating Agreement and is incorporated by reference into the
Network Operating Agreement. The Parties agree to be bound by the terms and
conditions of the Network Operating Agreement, except as specifically set
forth herein.
11. COUNTERPARTS. To facilitate execution, this Agreement may be executed in
------------
counterpart. All counterparts together will constitute a single agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on
____________________, 1996.
[TRINET, INC. OR ▇▇▇▇ COMMUNICATIONS, INC.] MPX SYSTEMS, INC.
-------------------------- ---------------------------
[NAME] [NAME]
[TITLE] [TITLE]
for [TRINET OR ▇▇▇▇] for MPX Systems, Inc.
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